hayek and schmitt on the rule of law_f. r. cristi
TRANSCRIPT
Hayek and Schmitt on the Rule of Law
F R Cristi
Canadian Journal of Political Science Revue canadienne de science politique Vol 17 No 3(Sep 1984) pp 521-535
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Hayek and Schmitt on the Rule of Law
F R CRISTI Wilfiid Lrrrtrier Unil+ersity
Liberal legal and political theory finds its most solid support in the notion of rule of law or Rechtsstlrat It is only fitting then that Hayeks attempt to develop a comprehensive philosophy of liberty should stand on this basis In his philosophy the rule of law determines the two most general conditions for the possibility of individual freedom On the one hand as a principle of distribution it designates a sphere in which individuals are accorded the freedom to develop and launch forth in every direction a sphere which is granted precedence over the state The state itself is taken to be merely a means to the ends individuals set for themselves The rule of law thus postulates a separation between civil society and the state and as a separate sphere civil society is legitimated in its demands for the least possible interference in its internal affairs On the other hand as a way of organizing that basic distribution the rule of law postulates that the state recognized as limited in principle should maintain a separation of its powers and competences as guarantee to its own limitation The first maxim of a free state is that the laws be made by one set of men and administered by another (Paley)
Accordingly the structure of liberal constitutions reflects this dual condition First one finds in them recognition of individual rights protected but not established or generated by a limited state Second in order to make sure that the state will not overstep that limitation its powers and competences are strictly defined and separated It is only in this latter function as a principle of state organization that the rule of law finds its proper task In this respect perhaps the best definition of the rule of law is given by Locke in his Second Treatise Whoever has the legislative or supreme power in a common-wealth is bound to This a~i ic le was read at the Department of Political Science University of Alberta and
at the Conference on Liberalism in Crisis University of Guelph June 1983 For comments and suggestions I owe thanks to Don Carmichael Frank Cunningham Fred- erick Engelmann Douglas Long Elwood Murray Tom Pocklington Carlos Ruiz and also the assessors of this J o i ~ x 4 ~ The Social Sciences and Humanities Research Council of Canada pro ided financial assistance through a post-doctoral fellowship
I Friedrich A Hayek The Cotlsrir~~riot~cfLihcrr (South Bend Gateway 19721 2 Ibid 173
Canadian Jo~irnal of Political Science Rerue canadienne de science politique SII3 (Septemberlseptembre 1981) Printed in Canada Imprime au Canada
govern by esiablished standing laws promulgated and known to the people and not by extemporary decrees Ex post facto interference in the affairs of civil society is thereby ruled out Laws must be abstract and general independent from the particular will of the legislator and independent too from the particular ends of particular people Their standing characteristic is indicative of their persistence and endurance Laws then must be distinguished from measures which are always concrete particular and extemporary According to Hayek it is precisely the generality and persistence of laws that can equally protect all individuals from prerogative and arbitrary authority In his view the foundations of liberalism lie in this objective encirclement of authority In other words liberalism of itself does not appear to be incompatible with coercion on condition that the authorities that administer it allow all individuals equally to foresee the entire course of their own action Surely this represents a purely procedural condition and as Hayek himself admits the rule of law remains indifferent to the consequences of its application The emergence of substantive differences among individuals is of no concern to it Individual freedom is only imperiled when one attempts to modify and correct such outcomes by means of state intervention Hayek is perhaps best known for insisting that any transgression of the rule of law whatever its extent places us on the road to totalitarianism
In Hayeks view Carl Schmitts critique of liberalism and the rule of law and his defence of decisionism during the Weimar republic and then his prominent role in the years of consolidation of the Nazi regime contributed greatly to the precipitation of one of the most serious crises of European liberalism- Schmitt according to Hayek should be seen as the leading Nazi theoretician of totalitarianismHe was the first to embark on a philosophical investigation of totalitarianism In no longer finding meaning in the separation between state and civil society he hit upon the essence of [its] definition To a certain extent Hayeks assessment of Schmitts legal and political philosophy as it appeared in his enormously influential The Rolrd to Serfdom explains why the latters work has been for the most part ignored in the English-speaking
3 Locke Sccot~i Trctiricc 0 1 7 C B Macpherson (ed) (Indianapolis G o ~ ~ r t ~ t l r t ~ r Hackett 1980) 68 Compare with H L A Hart T I ~ PConicpr it Lt i l~ (Oxford Clarendon 1961) chap 2
4 Hayeks acquaintance with Schmitts legal and political theory is extensive He recognizes in him an extraordinary German student of politics who in the 1920s probably understood the character of the developing form of government better than most people and then regularly came down on what appears both morally and intellectually the wrong side (Friedrich A Hayek Ltril Lrgilntiorr rind Liberty vol 3 TIrc Politicril O r d c o rr Frc~c Pc~ol~lr [Chicago The University of Chicago Press 19731 193)
5 Friedrich A Hayek Tlic Rotrd ro Serftiom (Chicago The Uniersity of Chicago Press 19143 187
6 Ibid 187
Abstract According to Hayek the rule of law constitutes the foundation of liberalisms political and legal theory General and abstract laws as opposed to concrete measures protect individual freedom from prerogative and arbitrariness (normativism versus decisionism) Hayek maintains that Carl Schmitts decisionism explains his attacks on liberalism and the prominent role he played in support of Hitlers regime Two general observations should shorten the distance that Hayek seeks to establish between his posture and that of Schmitt Firstly Schrnitts critique is primarily aimed against the tendency that neutralizes the state and makes it vulnerable to democratic pressures Secondly Hayeks normativism is seen to contain a decisionist potential
Resume Selon Hayek letat de droit est le fondement de la theorie politique et legale du liberalisme Des lois generales et abstraites contrairement aux mesures concretes protegent la liberte individuelle de la prerogative et de Iarbitraire (normativisme versus decisionisme s) Hayek soutient que le decisionisme de Carl Schmitt explique sa refutation au liberalisme et son adhesion au National-socialisme en 1933 Dapres moi il faut absolument raccourcir la distance que Hayek essaie detablir entre sa position et celle de Schmitt Dabord la critique de Schmitt est dirigee contre la tendance de neutraliser letat laquelle le fait vulnerable aux pressions democratiques Ensuite le normativisme de Hayek contient un decisionisme potentiel
world7 It is with some hesitation that I attempt to rescue from this oblivion an author who has deservedly been accused of being the Mephisto of the pre-Hitler era (Loe~ens t e in ) ~ It was the success of his interpretation of the Weimar constitution particularly after the breakdown of the Great Coalition and the consolidation of the presidia1 system in March 1930and then his personal friendship with prominent members of the Nazi hierarchy that allowed him access to Hitlers regime and to become in the words of Hayek its Kronj~r~ i s t ~
Hayeks legal and political theory has in large measure evolved as an attempt to defend liberalism and the rule of law from Schmitts attacks Indeed his arguments in this respect can be seen as representing the exact counterpart of the latters legal and political theory One does not supersede an adversary position though merely by erecting its counterposition in so far as every negation is at the same time determination What generally happens when one proceeds in this manner is that the position one is attacking is not transcended but tends to be preserved as an obverted mirror-image Something like this has happened to Hayek Some of Schmitts basic assumptions have penetrated his philosophy of liberty effectively determining the content of his argumentation
7 Two American historians have recently devoted attention to Schmitt George Schwab Tlrc Clrtrllenge cfErceptiot~ A n 1ntrod11ctiotl to t l ~ c Political Ideas cfCarl Schmitt hetlceen 1921 a t ~ dI936 (Berlin Duncker amp Humblot 1970) and Joseph Bendersky Carl S(rri~itt Tl7eorist ti) tile Reic11 (Princeton Princeton University Press 1983) Fordiscussions of Schmitts reception in the English-speaking world see Joseph Bendersky Carl Schmitt Confronts the English-Speaking World C~t l ( rd i (~ t l oP~litic~(~l~~t~~iS~(~i~lJ O I I I I I ( I ~ T~eor2 ( 1978) 125-35 and George Schwab Schmitt Scholarship ibid 4 (1980) 149-55
8 Compare with Wolfgang Mommsen M0u Wehr r ltnd dir D c ~ ~ t c l ~ c Politik 1890-I920 (2nd ed Tuebingen Mohr 1974) 408 11156
9 Friedrich A Hayek S r ~ t d i c ~ ~ folitic~~ (Chicago The it1 PI~iloso~~hy (1t1li Ec~otlorili(~ University of Chicago Press 1967) 169
Although Hayek has a point in stressing Schmitts contribution to Nazi ideology he is wrong in stating that his fundamental motivation was anti-liberal Schmitts main concern was the democratic component that had according to him spuriously adhered to classical liberalism during the nineteenth century What he actually objected to was liberalisms inability to preserve its main body of doctrine free from democratic contamination My aim in this article is to correct Hayeks distorted interpretation of Schmitts work As a result it should appear that in spite of Hayeks prudential commitment to democratic methods the distance he seeks to establish between his own position and that of Schmitt is reduced
Schmitts legal theory rests on the distinction between two polarly contrasted conceptions of law-normativism and decision-ism Normativism according to Schmitt represents the rule of generality and pure rationality General abstract laws take no account of particular c ircumstances and intent ions and follow a nonconsequentialist path Normativism expresses the domination of ratio over of Lex~o l rrn ta~ over Rex The indifferent legalism that ensues marches hand in hand with capitalist rationalism supporting a mechanism which according to Schmitt indifferently satisfies with equal exactitude any and every demand whether it be for silk blouse or poison gasll The rule of law finds its most articulate philosophical expression in Kants legal philosophy Kantian liberals like Kelsen were responsible for the primordially normativist interpretation of the Weimar constitution
Decisionism on the contrary is the rule of particular concrete measures It represents the domination of lol~rntasover ratio and is best defined by the Hobbesian formula Auctoritas non teritasfacit legem12 Law is in essence command the deliberate issuing of orders Behind the abstract generality of norms one always finds the concrete interests of a willWoreover norms can only be defined against the background
10 Carl Schmitt Politische Theologie Vier Kupi te l ~ r r Lehre von der Soroeroenitaet (2nd ed Muenchen amp Leipzig Duncker amp Humblot 1934) 25-46 Verfass~rngslekre (Berlin Duncker amp Humblot 1928) 139-42 Ueber die Dre i Arten des Rec~ l l t s~ l~ i s s ensc~ i l i c l i e t~Denkens (Hamburg Hanseatische 1934) 11-29
11 Quoted in Emst Fraenkel The Drrol Stcrte (New York Octagon Books 1969) 207 I Carl S c h m i t t D i e D i k t u t r r r Votl d e n Anfaetzgetz des 1nodert1et1
Sor(~eruenitcretsgedcinkens bis rim prolettrriscl~eti K lassenka tn~ f (2nd ed Muenchen and Leipzig Duncker amp Humblot 1928) 22
13 According to Schmitt it is the existential quality of a will its power and authority that determines the validity of norms Thus the Weimar constitution should not be interpreted as a self-validating functional legal system Its validity is objectively determined by the political will of the nation It rests on the existential totalitarian will of the German people (Verf i~ssltngslehre24)
of the exceptional It is ultimately the explanatory and existential force of the exceptional and extraordinary which sustain what is to be considered normal and ordinary Schmitt quotes from Kierkegaard The exception explains the universal so that when one wishes to study the universal all one needs to do is to consider a warranted exception The exceptional will place everything in a much clearer light than the universal itself- For Schmitt then the legally normal is defined and explained by an extraordinary will the will of the sovereign As an abstract concept a sovereign is simply he who decides on the state of exception In principle there can be no definition of the exceptional At best one can approach this question in terms of a political theology and operate on the analogy afforded by the supreme command of God over creation Political theology then explains the unlimited powerlf secular sovereigns by their participation in Gods omnipotence The decision that suspends the rule of law can in similar fashion be explained as a miracle According to Schmitt nineteenth-century liberalism effectively suppressed awareness of the voluntarist foundations that ground the rule of law But one had simply to look behind its euphoric faqade to perceive the prose of Roman sovereignty
Armed with this simple distinction Schmitt set out to uncover and free the decisionist elements he saw repressed by the overtly normativist nature of the Weimar constitution Instead of the Reicl~rtrgwhich he perceived as lacking in vigour and resolution he pointed his finger in the direction of the Riclzsprr~csidrnras the constitutional figure containing the most decisionist potential The Rrichsprt~esid~ntwas an anomaly in the Weimar constitutional design Owing much to Webers idea of a charismatic leader he provided a substitute for the role previously held by the throne But beyond the intentions of the jurists that devised his role the course of events was partly responsible for his elevation from what could have been a purely decorative function to supreme arbitrator to protector of the constitution to sovereign ruler of the state Schmitt followed that ascending career step by step and was perhaps solely responsible for helping to chart that course clearing from it ideological obstacles and reservation^^^
Among these were a number of assumptions made by Weimar liberalism which were the result of accretions to the classical core of
14 Sbren Kierkegaard Dicj Wic~cierliol~ctig Gr5 Wcrkc~(Duesseldorf Eugen Diederichs 1967) 93 Quoted by Schmitt in his Politiclrr Tlrc~ologic 11
15 Schmitt Polit icc~c~Tlieologic~11-12 16 It is a different story when Schmitt descends from this abstract plane to the concrete
applications of s o ~ e r e i g n t y In the Appendix to his Dicj D i k t c i t ~ ~ t he denies that the Rc~icl i sl~tcic~sicletlt embody the p lc t l i t~ ido potectat~i which thecan was accorded monarch in the Prussian constitution for instance (Schmitt Dlc DiXtert~cr dcr Rc~it~Iispt~ctc~sielrtitc~t1t ~ ( t ( i111t48 elcit Writtcitor lc~tfi~cotry appendix to Die DiXtcittrt 36-37)
17 Heinrich Muth Carl Schmitt in der Deutschen lnnepolitik des Sommers 1932 Nicto~icclicLci tsc~ri f t Beiheft (1971) 75-147
526 F R CRISTI
liberalism in its secular efforts to accommodate rising democratic pressures It was against these democratically determined assumptions that Schmitt concentrated his fire The first was the democratic erosion of the liberal distinction between the state and civil society 18 Liberalism conceived civil society as the protected domain of individual rights The function of the rule of law was to eliminate any unwanted interference in this sphere At the same time-and this is often overlooked-the separation from civil society secured a protected domain for the state as well thus granting it the monopoly of the political as such Confronting the pluralism of civil society the state embodied its political unity In this manner the classical liberal state was assured of autonomy and independence For classical liberalism then the states most important function was to prevent the politicization of civil society restraining all democratic efforts aimed specifically at abolishing the separation of labour and capital Liberal governments present a duality which perhaps nobody has expressed with greater clarity than Constant le gouvernement en dehors de sa sphere ne doit avoir aucun pouvoir dans sa sphere il ne saurait en avoir troplg Now as Schmitt saw it the advance of democracy within the Weimar republic fatally compromised the authority of this liberal state and eroded the distinction between spheres and competences Democracy demands an identity between civil society and the state and its pressures from below have the effect of weakening the state as an autonomous political entity The nineteenth-century liberal state in response to these same pressures had become progressively neutralized losing its monopoly over politics20 Politics had thus transferred its locus from the state to civil society This is what properly characterized the historic compromise between liberalism and democracy But according to Schmitt this could only be a very unstable compromise for the diffusion of politics to the extent that it could become the property of society signified not only the end of the authoritarian state of classical liberalism but also the end of the liberal democratic state itself Total politicization of civil society signals the emergence of a new state Inspired by Juengers notion of totale Mobilmachrrng Schmitt calls this new state total state21 later
18 Schmitt Drr Hurter drr Verfcrss~tng (2nd ed Berlin Duncker amp Humblot 1969) 73 The first edition of this work was published in March 1931
19 Quoted in Wilhelm Roepke Ci~iras H~rmunu (London W Hodge 1948) 28 20 Schmitt Tllr Concrpt cftl7e Politicul trans by George Schwab (New Brunswick
Rutgers University Press) 22 Compare with Max Weber T17r Tl7ror ofSociu1 clnd Econornic 0rgrini-ution (New York Free Press 1968) 156 Hayek TI[( Cotlstir~rfion r f L i h c r t ~ 21 Robert Nozick in his Antrrcliy Srcrrc clrld Cropicl (New York Basic Books 1974) 23 explicitly refers to Weber in this respect
21 Schmitt uses this notion forthe first time in D r ~ F l ~ ~ c ~ r r r d c rILtf(rss107g(79) It is used again in October of the same year (1931) in his Conceprcfrlle Politiccr1 23-24 and then in November 1932 in a conference given to the Langman association of German businessmen later published in VolX find Rricll (February 1913) with the
Htrypk and Schmi f t on flle R l ~ l e cfLrr~t 527
rendered in English as totalitarian state This totalitarian state has more affinities with democracy than with liberalism It is not the result of the strengthened authority and autonomy of the classical liberal state but of its democratic weakening It is against this totalitarian state and against the neutralized liberal democratic state that precedes it that Schmitt advocates the total depoliticization of civil society and the total concentration of political power in an authoritarian state According to Schmitt this new state would survive only if it abandoned popular sovereignty as an assumption This was precisely the mission placed in the hands of the Reichsprctesid~nrHe should cease to be seen as a mere extension of civil society and should rise above it in dictatorial independence and autonomy His authoritarian rule would then signal the advent of a post-democratic state
A second assumption made by nineteenth-century liberalism was the acceptance of the pre-eminence of democratic legitimation over the monarchical principle-l Classical liberalism cannot be said to have been incompatible with the latter On the contrary the monarchical principle represented a viable institutional arrangement to preserve the separation between civil society and the state in so far as the monarch centralized and monopolized political matters Schmitt cleverly perceived that it would be impossible to assail this second assumption of nineteenth-century liberalism and to revive the monarchical principle Still he conceived of a way to dilute and adulterate popular sovereignty so as to render it ineffective Again he focussed his attention on the figure of the Reicl~sprarsidentIt is true that the Weimar constitution established that the R e i c ~ h s p r ~ e s i d e r ~ fwas to be elected popularly But such an election could be interpreted as something different from a democratic election It could be seen as a plebiscitarian acclamation in which certain external formalities of the democratic process were respected but its participatory content denied
[The Reic~lrspvricsidc~17tJis ideally thought of as the man who unifies in himself the trust of the people as a whole beyond the limits of party organization and
programmatic title Starker Staat und gesunde Wirtschaft Heinz 0 Ziegler in a work that owes much to Schmitt draws the distinction between totalitarianism and authoritarianism (Allroritrrerrr odrr fi~ttrlc~r Stnrlt [Tuebingen Mohr 19321) This distinction c o n s t i t ~ ~ t e s the basis for later discussions of this subject Ultimately what Marcuse Fraenkel Neumann Talmon Hayek Popper Friedrich Brzezinski Arendt Barber and Kirkpatrick have to say on this matter is tributary to Schmitt s pioneer work It is interesting to note that Schmitt s distinction between qualitative and q~~ant i t a t ive totalitarianism turns authoritarianism into a variant of the totalitarian state (Starker Staat und gesunde Wirtschaft 84) Compare with Lc~cllitcict trrrcl Lcgitimitrrcr (Muenchen and Leipzig Duncker amp Humblot 1932) 93 and with Schwab Tire Clrtrllcngr c x f E~cepriot~14-46
22 Schmitt Lcgcllirclcr trtrcl Le~irinlircrer 96 Compare with Hayek Tlrr Poliricii1 01clcr ottr Fwe People 195
23 Ibid 93 24 Schmitt 1 2 r ~ c ~ s s ~ ~ t ~ y s l ~ ~ l ~ r c ~ 90-91
528 F R CRISTI
party bureaucracies He is able to do this as the man in whom the whole of the people have placed their trust and not as the member of a political party The election of the Rcichsprclcsident is more than any ordinary democratic election It is the grandiose acclamation of the German people j
The people acclaiming the Rrichsprcie~idrntact as an unorganized mass of electors incapable of deciding on the substantive issues concerning them The people select their leaders in order that they may govern They do not themselves continuously decide on the leaders difficulties and their differences of pinion^ A strong independent leadership is implied strong enough to impose the necessary depoliticization of civil society and prevent its total democratic politicization Still one i 4 bound to ask why a total depoliticization of civil society would be less totalitarian than its total politicization Is it a coincidence that of all the institutions contained in the Weimar constitution only that of the Rricl~~prarsicirrl tsurvived without alterations during the Nazi regime17
A further assumption of nineteenth-century liberalism which Schmitt sought to enervate was the institution of modern parliaments Ideally parliaments embody two principles vital for the government of civil society-discussion and publicity x These constitute the necessary preconditions of rational exchange of ideas and rational decision-making However the full expansion of market relationships during the nineteenth century affected parliamentary functions Disinterested rational debate was no longer possible and the clash of opinions gave way to a clash of irreconcilable interest^^ According to Schmitt it was at that point that parliaments became the instruments by which civil society attempted to control the state depriving it of its autonomy At the same time the democratic component of liberal democracy was meant to produce the politicization of civil society blurring the separation between civil society and the state and depriving parliaments of their monopoly over politics Deputies were bound to lose their traditional representative roles and to become more and more dependent on their electoral basis and on the parties to which they belonged Schmitt concluded that parliamentary governments such as the one defined by the Weimar constitution were doomed to fail The pluralistic tendencies proper to civil society robbed them of their capacity to decide and condemned them to endless discussion and indecision irrevocably torn by party positions and recalcitrant interest groups
25 Ibid 350 26 Ibid 351 27 Compare with Ernst Rudolf Huber Das Staatsoberhaupt des Deutschen Keiches
Z e i t s c ~ l ~ r ~ f i f i i e r 95 (1935) 203 die gesanlre Stacitsreclzt~c~issenscllqfi
28 Schmitt Die geist~sgesclziclztlic~eLuge des I7e11tigerz Purlnmet7tarismm (3rd ed Berlin Duncker amp Humblot 1961) and following pages
29 Ibid 9-10
Hayrk orld Schmirr o n tllc Riilr of Lnis 529
For these maladies Schmitt again advocated the role of a decisionist Rrichsprcrrsicicnt Only he could escape civil societys centrifugal pluralism and standing beyond partisan positions only he could unify the nation by holding the trust of the people as a whole The crucial ingredients in the script Schmitt was preparing for the Rcicllsprorsitlent were contained in art 48 of the Weimar constitution This article invested the Reic~llsprarsitlcntwith extraordinary dictatorial powers to face emergencies including the ability to decree measures that contravened the legally established order It was in this exceptional power that Schmitt saw the constitutive factor of what is defined as the normal situation Norms can only exist because the exceptional and abnormal have been taken care of
Most of those acquainted with Schmitts work have seen in liberalism his principal ideological adversary xO This indeed represents Schmitts own self-understanding I maintain though that this is not the case and that his attacks were directed against the democratic component in nineteenth-century liberalism particularly against the principle of popular sovereignty This comes to light with great clarity after 1933 when he was beginning to be proved right by historical events It is at this point that he began to expand on the limitations of dec i~ ionism~ Decisionism now appeared to him as one-sided as normativism in that it lacked the objectivity needed to legitimate a stable framework for continuous political action There was the danger he recognized in November 1933X2 that the urgencies of the present could obscure the tranquil being (das ruhende Sein) underlying a great political movement That tranquil being should be seen as preceding any movement It constitutes the ground on which stand both a normative state and a decisionist party Schmitts early Fichtean critique of the Kantian rule of law has receded leaving a space for a more moderate Hegelian compromise Hegel is definitely in Schmitts mind when he introduces the notion of concrete order This corresponds to the transcendentally tranquil being embracing both decisionism and normativism as their condition of possibility Immediately modelled on Harious theory of the institution this transcendental order I-emirids us
30 Georg Dahm review of Schmitts Lebtgtrdie Drei Arrcn des Rcc~lrt~tissrnsc~I~t~~ilicI~c~n Dc~trhorsin the citsc~irrififr~rr 95 (1935) 181 die grsrrmte Srtrtrrsrec~l~rsu~issrr~sc~lrqfi [Schmitts works] are from the start determinately aimed at weakening and abolishing the liberal Recirrs~rautand at superseding the legislative state Compare with Hayek Lan Legisluriorl trtrtl Libc~rty vol 1 Rrllrs trnd Order (Chicago University of Chicago Press 1971) 161 note 19 Leo Strauss Comments on Carl Schmitts L ) o Bcgr(fPdrs Pol i t isc~lr~~~i ( f r l l c Poirictrl 82in Tire Co~ri(gt[)r Mathias Schmitz Dic Frt~rrr~ci-F(~it~tl-TI~corit~Crrrl S(rtritt (Koeln amp Opladen Westdeutscher 1965) 127
31 Compare with Schwab T11c~ Clrrrllrr~gc~ o f E-ceptior 87 32 Schmitt Poirische Ti~eologie Preface 33 Schmitt Leher clic Drci Artrrl t l r ~ R c c ~ l r t ~ ~ t ~ i s s c ~ r ~ s c ~ I ~ t ~ f i I i ( ~ I ~ ~ ~ i ~DrtlXc~rs40-44
530 F R CRISTI
of Hegels ethical State According to Schmitt Hegels State is not merely the embodiment of sovereign decision nor the empty position of a norm of norms nor even the fluctuating scenario for alternating situations of emergency and stability Rather one should see in it the concrete order of orders the institution of institutions Neither the impc3rsonal rule of law nor the prrsor1~1measures of a sovereign can monopolize the political sphere Both have their transcendental condition of possibility in an already given sr(prapersona1 ~ r d e r ~
Hayek follows the views of those who think that Schmitts main adversary is liberalism in all its manifestations and that it is precisely this anti-liberal posture that accounts for his smooth conversion to National Socialism in 1933 This particular understanding of Schmitts legal and political theory determines for instance the brief but comprehensive critical account Hayek gives of it in his La Legisllrtion lint1 Liberty
[Schmitts] central belief as he finally formulated it is that from the normative thinking of the liberal tradition law has gradually advanced through a decisionist phase in which the will of the legislative authorities decided on particular matters to the conception of concrete order formation In other words law is not to consist of abstract rules which make possible the formation of a spontaneous order by the free action of individuals through limiting the range of their actions but is to be the instrument of arrangement o r organization by which the individual is made to serve concrete purposes This is the inevitable outcome of an intellectual development in which the self-ordering forces of society and the role of law in an ordering mechanism are no longer understood
34 Ibid 45-57 There is a certain ambiguity in Schmitts relation to Hegel apparently a product of a reference to the latter in his book Srcitrr Reuegetng ltnd LolX (Hamburg Hanseatische 1933) In it he states in connection with Hitlers being designated chancellor on January 30 1933 Accordingly one can say that on this day Hegel died Marcuse for instance stops here and does not read any further (Marcuse Ncgtr t iot i~[Boston Beacon 19671 275 note 79) Compare with Henning Ottmann I t~t l i~~i t l icc~m bc~i f fc qr l vol 1 (Berlin de Gruyter 1977) 222 n451)tintlGc~rrrc~insc~lrrfi The cont in~~at ion of the text though speaks for itself This does not mean that the great work of this German political philosopher has lost its significance and that the idea of a political leadership that transcends the egoism of social interests sho~lld be abandoned What is truly German and perennial of the powerful spiritual construction erected by Hegel c o n t i n ~ ~ e s (32) Again in to be valuable for the new formation 1935 Schmitt identifies his opposition to the rule of law or Rrc~ht~srtrtrras Hegelian The true antithesis to the Rrclrrsstrrrrr is not a Niclrr-Rrci~rtsrarrr but Hegels StttIiclrXritttrtrt (ethlcal state) See Schmitt Was bedeutet der Streit um den Rechtsstaat rircrr~fi f i ~ c ~ r 95 (1935) clic gcJscrmrr Sttrnr rc~c l~t t~t i cnt t~~t~f i
189-91 35 Schm~t t LPhrr die Drci Artc11 dc Rcc~lrt~~t~irorc~iri~filic~ire~~eDcnXc~l47 36 Ibid 13 37 Hayek Rolc5 titrtl O r t l o 71
Nrryek and Scllrnitt on the Rtlle q f L a u ) 531
Schmitts notion of concrete order formation is interpreted here as an arrangement resulting from the deliberations and conscious decisions of particular individuals In Hayeks own system this corresponds to what he describes as organizations and his conception of law as tllrsis as opposed to nornoc In this respect Schmitts notion of concrete order becomes the ideal vehicle for decisionism in so far as organizations and law as thesis presuppose the agency of personally active individuals Hayek though disregards the supra-personal nature that Schmitt ascribed to his notion of order and by means of which he intended to modify the one-sidedness of his earlier position This interpretation allows Hayek to defend adiametrically opposed conception of order He describes this as a system of abstract relations and interactions where abstract reason and not will becomes the dominant factor Reason simply contemplates the unfolding of a spontaneous natural order which is the result of an evolutionary process the spontaneous outcome ofcustoms and established practices not of human design I submit that Hayek misrepresents Schmitts notion of order as containing purely decisionist elements3R This misrepresentation is functional to his system of thought for it allows him to believe that a great distance separates him from Schmitt In like manner his own self-understanding tends to overlook the decisionist potential that lies dormant in his own conception of order In what follows I will make some general observations that should shorten the distance that Hayek intends to maintain between his own conception of order and that of Schmitt
In the first place I think that Schmitts expressed intention to move away from an exclusively decisionist phase in his thought should be taken seriously His earlier one-sided posture can be attributed to what he saw as an extraordinary weakening of the role of authority during the Weimar period and to h ~ s desire to enhance the role of the Rriclisprarsitlent This is why he came out so strongly against any attempt to water down and enervate the decisionist nature of art 48 After 1933 though when a decisionist course of action had finally prevailed and it appeared as if all crucial decisions had been taken by the Frrehrer Schmitt saw the need to consolidate the regime giving it a measure of stability A superior supra-personal standpoint transcending both decisionism and normativism appeared to him as the indispensable condition to help configure an objective framework that could mediate between state and civil society An important indicator of this attitude is Schmitts effort to move closer to Hegel In Hegels political philosophy he was able to see a form of decisionism that could
38 Schrnitts notion of concrete order surely contains decisionist elements (compare with the requirement of a in his Lthcr ciic D r r iF i i c l r r e x r i ~ r ~ t i ( ~ t i l r r c ~ r ~ tic Rltci i t ~ ~ ~ i ~ ~ c ~ ~ ~ c ~ l ~ t r i i l i c ~ I ~ ( ~ r ~ cannotDc11Xct7t63) Still this principle of leadership operate in a void It is in this latter sense that Schmitts notion of concrete order formation is supraper~onal
532 F R CRISTI
fit within a wider structure that could be contained organically side by side a normative order This explains why Hegels monarch does not strike us immediately as a decisionist figure He may appear to be dormant emptily adding his signature to decisions made by others But in times of emergency he will awake and the gates of his decisionist power will be flung open Hegels conservative monarch as the beginning and apex ofthe whole is his formula to arrest market societys self-destructive competitive race The State presided over by the monarch will not result from contractual arrangements but appears as already constituted as a substantive order predating the individual existence of its membersThis stands well with Schmitts conservative Catholicism That it does not contradict Hayeks contractarianism will be considered shortly
Second there are some decisionist elements visible in Hayeks apparently pure normativist approach He accepts without reservation a principle postulated by Schmitt in his writings namely that democracy and liberalism are logically unrelated answers to logically unrelated questions Hayek writes
Liberalism and democracy although compatible are not the same The difference is best seen if we consider theiropposites the opposite of liberalism is totalitarianism while the opposite of democracy is authoritarianism In conseqilence it is at least possible in principle that a democratic government may be totalitarian and that an authoritarian government may act on liberal principles That a liberal polity may be open to authoritarian rule does not appear contradictory to Hayek In agreement with Schmitt he too distinguishes sharply between civil society and the state The autonomy and independence reserved to the state is what grounds its authoritarian potential Hayek though appears to be explicitly opposed to what he sees as the growing predominance of central planning and proposes a merely negative role for the state The state should abstain from intervening in the affairs proper to civil society Correspondingly his notion of an abstract order presupposes civil societys capacity for self-regulation and confirms the dethronement of politics within that ~ p h e r e ~ Still the negative tasks ascribed to the state are determined and sustained by the action of the state itself It is thus positively and actively that the state restricts and limits its action to a mere1 y negative one so that the depoliticization of civil society turns dialectically into the states active preservation of its monopoly over the political as such
39 Compare with my article The Mitt( and Hegels Monarch f fcgc~lsc~rc folitictr1 TIr(~oi l l (1983) 601-22
30 Hayek Stitdic in Pliilosoplr Politic~c cltid Ecotlotric s 161 41 Hayek Lci~t L~~ ~ i t c t t i o t r trtrd Lil~crty vol 2 Tlrc Zlirtrqe cSocici Jiiticc (Chicago
The University o fch icago Press 197h) 102-03 Tlrc Politic (lIOrdcr(t o Pi(c Socicty 130 139-50
Hrryrk and Schmitt on rllr Rlrle c t f Lau 531
Whenever the normal working of civil society becomes in any iJagt imperilled so that its spontaneous order must be converted into an organization the knowledge of such a situation and the decision to alter the spontaneous order of civil society lie beyond its powers in so far as they are recognized as being of a political nature Hayek admits that the power to declare a state of emergency belongs to the state And it does not escape his attention that there is some plausibility in Schmitts contention that whoever has the power to proclaim an emergency and on this ground suspend any part of the constitution is the true ~overeign~ It appears as if Hayek has not been able to exorcise this ugly notion of sovereignty and that Bolingbrokes dictum-there must be an absolute unlimited and uncontroulable [sic] power lodged somewhere in every government43-would still be true Hayek offers a series of precautionary measures aimed at avoiding a relapse into an unbalanced decisionist posture I will not discuss at this point whether these measures are effective or not I will only say that decisionist elements are potentially incorporated into his system in so far as essential to it is the separation between state and civil society
Finally I think it is possible to show that this potential decisionism built into Hayeks system does not remain as a purely potential moment Behind the rule of law which abstractly rationally and objectively configures the institutions of government one should be able to see the actual decision to abide by such a rule And this decision finds its motivation and force not in the realm of pure rational law but in the obscure recesses of material civil society The rule of law is expressed by abstract general rules which regard all individuals as equal however unequal they may in fact be Its rationality can thus be taken as purely formal compatible with democratic methods4 but not with a Rousseauan democracy as the identity between rulers and ruled In fact as Hayek himself admits the order that sustains the rule of law is the product not of any rational design but of a process of evolution and natural selection an unintended product whose function we can learn to understand but whose present significance may be wholly different from
42 Hayek The Political Order qf a Free People 125 43 Bolingbroke The Idea qf a P(lrrior King S W Jackman (ed) (Indianapolis
Bobbs-Merrill 1965) 18 44 Joseph Raz has perceived the compatibility of the rule of law as Hayek understands
it with nondemocratic systems (The Rule of Law and its Virtue The L U M Qrarterly Re~ iet t 93 [1977] 196) A non-democratic legal system based on the denial of human rights on extensive poverty on racial segregation sexual inequalities and religious persecution may in principle conform to the requirements of the rule of law better than any of the legal systems of the more enlightened western democracies This does not mean that it will be better than those western democracies It will be an immeasurably worse legal system but it will excel in one respect in its conformity to the rule of law Compare with John Gray Hayek on Liberty Rights and Justice Ethics 92 (19811 77-78
534 F R CRISTI
the intention of its creator^ldquo^ This order though is not abstract and void but represents a particular class s t r ~ c t u r e ~ Some individuals will be better represented by it than others namely those individuals whom Hayek sees as belonging to groups which happen to have adopted rules conducive to a more effective order of action [and which] will tend to prevail over groups with a less effective order- This determines the constitution of natural ranks whose privileges and correlative disadvantages do not depend on the will of anybody in particular but should be seen as arising in a purely accidental fashion The rule of law that presides over this concrete and particular order of things is surely blind to its own particularity I see in this though more than just a natural blindness it is a disturbingly clear-sighted will and desire not to see
Hayeks political theory envisages an individualist view of human liberty and a contractarian view of society Yet he has appeared as a staunch defender of a social hierarchy which individuals are not free to choose How can he embrace these views without contradiction How can he be both liberal and conservative Just as Schmitt finds an answer to these queries in Hegels conservative-liberal political philosophy so Hayek traces his steps back to Hume the philosopher he admires most In Hume he is able to read the ideology of a liberal progressive aristocracy open to change innovation and industry In this respect the social hierarchy envisaged by Hume does not depend on anybodys particular merit or virtue So great is the uncertainty of merit both from its natural obscurity and from the self-conceit of each individual that no determinate rule of conduct could ever follow from it18 Individuals are allocated places in that hierarchy by chance and circumstance for instance by the accident of their natural birth The sovereignty of the people can then be replaced by the sovereignty of nature In this manner we are preserved from our selfishness and limited generosity Nature teaches us to accept the solidarity of subservience And it is this natural rank solidarity that preserves civil society from chaos and competitive anarchy A contemporary of Hume Samuel Johnson expressed the same when he told his friend Boswell Thus sir there would be a perpetual struggle for precedence were there no
45 Hayek TI( M i r t r ~ c of Socinl J~rst ice 79 36 A parallel objection is raised by Fraenkel against Schmitts notion of concrete order
(Tlic Drrtrl State 145) The problem of the concrete theory of order transcends the limits of the system of concrete communities This problem demands solution by decisionism and since there is no norm this decision-to employ Schmitts terminology-must be derived from a void In reality however this void is not advoid at all It is the value system associated with the class structure ofpresent-day society
47 Hayek Tlic Mirtrgc~ oSocitrl J~fi t iccj 16 48 Hume An Inyrri Concrrnini tiic Iirinciplrc of MorciIs in H r l r n r ~Ecctr (London
George Routledge 1894) 422
fixed invariable rules for the distinction of rank which creqes PO
jealousy as it is allowed to be a c ~ i d e n t a l ~ ~
39 Boswell in Tlir Lifc ofScinii(c Jolrnso~i A Napier (ed ) vol I (London George Routledge 1892) 356 Compare with David Miller Hume and Possessive Individualiam his to^ i loiiticcil Tlror~glit 1 (1980) 277
Hayek and Schmitt on the Rule of Law
F R CRISTI Wilfiid Lrrrtrier Unil+ersity
Liberal legal and political theory finds its most solid support in the notion of rule of law or Rechtsstlrat It is only fitting then that Hayeks attempt to develop a comprehensive philosophy of liberty should stand on this basis In his philosophy the rule of law determines the two most general conditions for the possibility of individual freedom On the one hand as a principle of distribution it designates a sphere in which individuals are accorded the freedom to develop and launch forth in every direction a sphere which is granted precedence over the state The state itself is taken to be merely a means to the ends individuals set for themselves The rule of law thus postulates a separation between civil society and the state and as a separate sphere civil society is legitimated in its demands for the least possible interference in its internal affairs On the other hand as a way of organizing that basic distribution the rule of law postulates that the state recognized as limited in principle should maintain a separation of its powers and competences as guarantee to its own limitation The first maxim of a free state is that the laws be made by one set of men and administered by another (Paley)
Accordingly the structure of liberal constitutions reflects this dual condition First one finds in them recognition of individual rights protected but not established or generated by a limited state Second in order to make sure that the state will not overstep that limitation its powers and competences are strictly defined and separated It is only in this latter function as a principle of state organization that the rule of law finds its proper task In this respect perhaps the best definition of the rule of law is given by Locke in his Second Treatise Whoever has the legislative or supreme power in a common-wealth is bound to This a~i ic le was read at the Department of Political Science University of Alberta and
at the Conference on Liberalism in Crisis University of Guelph June 1983 For comments and suggestions I owe thanks to Don Carmichael Frank Cunningham Fred- erick Engelmann Douglas Long Elwood Murray Tom Pocklington Carlos Ruiz and also the assessors of this J o i ~ x 4 ~ The Social Sciences and Humanities Research Council of Canada pro ided financial assistance through a post-doctoral fellowship
I Friedrich A Hayek The Cotlsrir~~riot~cfLihcrr (South Bend Gateway 19721 2 Ibid 173
Canadian Jo~irnal of Political Science Rerue canadienne de science politique SII3 (Septemberlseptembre 1981) Printed in Canada Imprime au Canada
govern by esiablished standing laws promulgated and known to the people and not by extemporary decrees Ex post facto interference in the affairs of civil society is thereby ruled out Laws must be abstract and general independent from the particular will of the legislator and independent too from the particular ends of particular people Their standing characteristic is indicative of their persistence and endurance Laws then must be distinguished from measures which are always concrete particular and extemporary According to Hayek it is precisely the generality and persistence of laws that can equally protect all individuals from prerogative and arbitrary authority In his view the foundations of liberalism lie in this objective encirclement of authority In other words liberalism of itself does not appear to be incompatible with coercion on condition that the authorities that administer it allow all individuals equally to foresee the entire course of their own action Surely this represents a purely procedural condition and as Hayek himself admits the rule of law remains indifferent to the consequences of its application The emergence of substantive differences among individuals is of no concern to it Individual freedom is only imperiled when one attempts to modify and correct such outcomes by means of state intervention Hayek is perhaps best known for insisting that any transgression of the rule of law whatever its extent places us on the road to totalitarianism
In Hayeks view Carl Schmitts critique of liberalism and the rule of law and his defence of decisionism during the Weimar republic and then his prominent role in the years of consolidation of the Nazi regime contributed greatly to the precipitation of one of the most serious crises of European liberalism- Schmitt according to Hayek should be seen as the leading Nazi theoretician of totalitarianismHe was the first to embark on a philosophical investigation of totalitarianism In no longer finding meaning in the separation between state and civil society he hit upon the essence of [its] definition To a certain extent Hayeks assessment of Schmitts legal and political philosophy as it appeared in his enormously influential The Rolrd to Serfdom explains why the latters work has been for the most part ignored in the English-speaking
3 Locke Sccot~i Trctiricc 0 1 7 C B Macpherson (ed) (Indianapolis G o ~ ~ r t ~ t l r t ~ r Hackett 1980) 68 Compare with H L A Hart T I ~ PConicpr it Lt i l~ (Oxford Clarendon 1961) chap 2
4 Hayeks acquaintance with Schmitts legal and political theory is extensive He recognizes in him an extraordinary German student of politics who in the 1920s probably understood the character of the developing form of government better than most people and then regularly came down on what appears both morally and intellectually the wrong side (Friedrich A Hayek Ltril Lrgilntiorr rind Liberty vol 3 TIrc Politicril O r d c o rr Frc~c Pc~ol~lr [Chicago The University of Chicago Press 19731 193)
5 Friedrich A Hayek Tlic Rotrd ro Serftiom (Chicago The Uniersity of Chicago Press 19143 187
6 Ibid 187
Abstract According to Hayek the rule of law constitutes the foundation of liberalisms political and legal theory General and abstract laws as opposed to concrete measures protect individual freedom from prerogative and arbitrariness (normativism versus decisionism) Hayek maintains that Carl Schmitts decisionism explains his attacks on liberalism and the prominent role he played in support of Hitlers regime Two general observations should shorten the distance that Hayek seeks to establish between his posture and that of Schmitt Firstly Schrnitts critique is primarily aimed against the tendency that neutralizes the state and makes it vulnerable to democratic pressures Secondly Hayeks normativism is seen to contain a decisionist potential
Resume Selon Hayek letat de droit est le fondement de la theorie politique et legale du liberalisme Des lois generales et abstraites contrairement aux mesures concretes protegent la liberte individuelle de la prerogative et de Iarbitraire (normativisme versus decisionisme s) Hayek soutient que le decisionisme de Carl Schmitt explique sa refutation au liberalisme et son adhesion au National-socialisme en 1933 Dapres moi il faut absolument raccourcir la distance que Hayek essaie detablir entre sa position et celle de Schmitt Dabord la critique de Schmitt est dirigee contre la tendance de neutraliser letat laquelle le fait vulnerable aux pressions democratiques Ensuite le normativisme de Hayek contient un decisionisme potentiel
world7 It is with some hesitation that I attempt to rescue from this oblivion an author who has deservedly been accused of being the Mephisto of the pre-Hitler era (Loe~ens t e in ) ~ It was the success of his interpretation of the Weimar constitution particularly after the breakdown of the Great Coalition and the consolidation of the presidia1 system in March 1930and then his personal friendship with prominent members of the Nazi hierarchy that allowed him access to Hitlers regime and to become in the words of Hayek its Kronj~r~ i s t ~
Hayeks legal and political theory has in large measure evolved as an attempt to defend liberalism and the rule of law from Schmitts attacks Indeed his arguments in this respect can be seen as representing the exact counterpart of the latters legal and political theory One does not supersede an adversary position though merely by erecting its counterposition in so far as every negation is at the same time determination What generally happens when one proceeds in this manner is that the position one is attacking is not transcended but tends to be preserved as an obverted mirror-image Something like this has happened to Hayek Some of Schmitts basic assumptions have penetrated his philosophy of liberty effectively determining the content of his argumentation
7 Two American historians have recently devoted attention to Schmitt George Schwab Tlrc Clrtrllenge cfErceptiot~ A n 1ntrod11ctiotl to t l ~ c Political Ideas cfCarl Schmitt hetlceen 1921 a t ~ dI936 (Berlin Duncker amp Humblot 1970) and Joseph Bendersky Carl S(rri~itt Tl7eorist ti) tile Reic11 (Princeton Princeton University Press 1983) Fordiscussions of Schmitts reception in the English-speaking world see Joseph Bendersky Carl Schmitt Confronts the English-Speaking World C~t l ( rd i (~ t l oP~litic~(~l~~t~~iS~(~i~lJ O I I I I I ( I ~ T~eor2 ( 1978) 125-35 and George Schwab Schmitt Scholarship ibid 4 (1980) 149-55
8 Compare with Wolfgang Mommsen M0u Wehr r ltnd dir D c ~ ~ t c l ~ c Politik 1890-I920 (2nd ed Tuebingen Mohr 1974) 408 11156
9 Friedrich A Hayek S r ~ t d i c ~ ~ folitic~~ (Chicago The it1 PI~iloso~~hy (1t1li Ec~otlorili(~ University of Chicago Press 1967) 169
Although Hayek has a point in stressing Schmitts contribution to Nazi ideology he is wrong in stating that his fundamental motivation was anti-liberal Schmitts main concern was the democratic component that had according to him spuriously adhered to classical liberalism during the nineteenth century What he actually objected to was liberalisms inability to preserve its main body of doctrine free from democratic contamination My aim in this article is to correct Hayeks distorted interpretation of Schmitts work As a result it should appear that in spite of Hayeks prudential commitment to democratic methods the distance he seeks to establish between his own position and that of Schmitt is reduced
Schmitts legal theory rests on the distinction between two polarly contrasted conceptions of law-normativism and decision-ism Normativism according to Schmitt represents the rule of generality and pure rationality General abstract laws take no account of particular c ircumstances and intent ions and follow a nonconsequentialist path Normativism expresses the domination of ratio over of Lex~o l rrn ta~ over Rex The indifferent legalism that ensues marches hand in hand with capitalist rationalism supporting a mechanism which according to Schmitt indifferently satisfies with equal exactitude any and every demand whether it be for silk blouse or poison gasll The rule of law finds its most articulate philosophical expression in Kants legal philosophy Kantian liberals like Kelsen were responsible for the primordially normativist interpretation of the Weimar constitution
Decisionism on the contrary is the rule of particular concrete measures It represents the domination of lol~rntasover ratio and is best defined by the Hobbesian formula Auctoritas non teritasfacit legem12 Law is in essence command the deliberate issuing of orders Behind the abstract generality of norms one always finds the concrete interests of a willWoreover norms can only be defined against the background
10 Carl Schmitt Politische Theologie Vier Kupi te l ~ r r Lehre von der Soroeroenitaet (2nd ed Muenchen amp Leipzig Duncker amp Humblot 1934) 25-46 Verfass~rngslekre (Berlin Duncker amp Humblot 1928) 139-42 Ueber die Dre i Arten des Rec~ l l t s~ l~ i s s ensc~ i l i c l i e t~Denkens (Hamburg Hanseatische 1934) 11-29
11 Quoted in Emst Fraenkel The Drrol Stcrte (New York Octagon Books 1969) 207 I Carl S c h m i t t D i e D i k t u t r r r Votl d e n Anfaetzgetz des 1nodert1et1
Sor(~eruenitcretsgedcinkens bis rim prolettrriscl~eti K lassenka tn~ f (2nd ed Muenchen and Leipzig Duncker amp Humblot 1928) 22
13 According to Schmitt it is the existential quality of a will its power and authority that determines the validity of norms Thus the Weimar constitution should not be interpreted as a self-validating functional legal system Its validity is objectively determined by the political will of the nation It rests on the existential totalitarian will of the German people (Verf i~ssltngslehre24)
of the exceptional It is ultimately the explanatory and existential force of the exceptional and extraordinary which sustain what is to be considered normal and ordinary Schmitt quotes from Kierkegaard The exception explains the universal so that when one wishes to study the universal all one needs to do is to consider a warranted exception The exceptional will place everything in a much clearer light than the universal itself- For Schmitt then the legally normal is defined and explained by an extraordinary will the will of the sovereign As an abstract concept a sovereign is simply he who decides on the state of exception In principle there can be no definition of the exceptional At best one can approach this question in terms of a political theology and operate on the analogy afforded by the supreme command of God over creation Political theology then explains the unlimited powerlf secular sovereigns by their participation in Gods omnipotence The decision that suspends the rule of law can in similar fashion be explained as a miracle According to Schmitt nineteenth-century liberalism effectively suppressed awareness of the voluntarist foundations that ground the rule of law But one had simply to look behind its euphoric faqade to perceive the prose of Roman sovereignty
Armed with this simple distinction Schmitt set out to uncover and free the decisionist elements he saw repressed by the overtly normativist nature of the Weimar constitution Instead of the Reicl~rtrgwhich he perceived as lacking in vigour and resolution he pointed his finger in the direction of the Riclzsprr~csidrnras the constitutional figure containing the most decisionist potential The Rrichsprt~esid~ntwas an anomaly in the Weimar constitutional design Owing much to Webers idea of a charismatic leader he provided a substitute for the role previously held by the throne But beyond the intentions of the jurists that devised his role the course of events was partly responsible for his elevation from what could have been a purely decorative function to supreme arbitrator to protector of the constitution to sovereign ruler of the state Schmitt followed that ascending career step by step and was perhaps solely responsible for helping to chart that course clearing from it ideological obstacles and reservation^^^
Among these were a number of assumptions made by Weimar liberalism which were the result of accretions to the classical core of
14 Sbren Kierkegaard Dicj Wic~cierliol~ctig Gr5 Wcrkc~(Duesseldorf Eugen Diederichs 1967) 93 Quoted by Schmitt in his Politiclrr Tlrc~ologic 11
15 Schmitt Polit icc~c~Tlieologic~11-12 16 It is a different story when Schmitt descends from this abstract plane to the concrete
applications of s o ~ e r e i g n t y In the Appendix to his Dicj D i k t c i t ~ ~ t he denies that the Rc~icl i sl~tcic~sicletlt embody the p lc t l i t~ ido potectat~i which thecan was accorded monarch in the Prussian constitution for instance (Schmitt Dlc DiXtert~cr dcr Rc~it~Iispt~ctc~sielrtitc~t1t ~ ( t ( i111t48 elcit Writtcitor lc~tfi~cotry appendix to Die DiXtcittrt 36-37)
17 Heinrich Muth Carl Schmitt in der Deutschen lnnepolitik des Sommers 1932 Nicto~icclicLci tsc~ri f t Beiheft (1971) 75-147
526 F R CRISTI
liberalism in its secular efforts to accommodate rising democratic pressures It was against these democratically determined assumptions that Schmitt concentrated his fire The first was the democratic erosion of the liberal distinction between the state and civil society 18 Liberalism conceived civil society as the protected domain of individual rights The function of the rule of law was to eliminate any unwanted interference in this sphere At the same time-and this is often overlooked-the separation from civil society secured a protected domain for the state as well thus granting it the monopoly of the political as such Confronting the pluralism of civil society the state embodied its political unity In this manner the classical liberal state was assured of autonomy and independence For classical liberalism then the states most important function was to prevent the politicization of civil society restraining all democratic efforts aimed specifically at abolishing the separation of labour and capital Liberal governments present a duality which perhaps nobody has expressed with greater clarity than Constant le gouvernement en dehors de sa sphere ne doit avoir aucun pouvoir dans sa sphere il ne saurait en avoir troplg Now as Schmitt saw it the advance of democracy within the Weimar republic fatally compromised the authority of this liberal state and eroded the distinction between spheres and competences Democracy demands an identity between civil society and the state and its pressures from below have the effect of weakening the state as an autonomous political entity The nineteenth-century liberal state in response to these same pressures had become progressively neutralized losing its monopoly over politics20 Politics had thus transferred its locus from the state to civil society This is what properly characterized the historic compromise between liberalism and democracy But according to Schmitt this could only be a very unstable compromise for the diffusion of politics to the extent that it could become the property of society signified not only the end of the authoritarian state of classical liberalism but also the end of the liberal democratic state itself Total politicization of civil society signals the emergence of a new state Inspired by Juengers notion of totale Mobilmachrrng Schmitt calls this new state total state21 later
18 Schmitt Drr Hurter drr Verfcrss~tng (2nd ed Berlin Duncker amp Humblot 1969) 73 The first edition of this work was published in March 1931
19 Quoted in Wilhelm Roepke Ci~iras H~rmunu (London W Hodge 1948) 28 20 Schmitt Tllr Concrpt cftl7e Politicul trans by George Schwab (New Brunswick
Rutgers University Press) 22 Compare with Max Weber T17r Tl7ror ofSociu1 clnd Econornic 0rgrini-ution (New York Free Press 1968) 156 Hayek TI[( Cotlstir~rfion r f L i h c r t ~ 21 Robert Nozick in his Antrrcliy Srcrrc clrld Cropicl (New York Basic Books 1974) 23 explicitly refers to Weber in this respect
21 Schmitt uses this notion forthe first time in D r ~ F l ~ ~ c ~ r r r d c rILtf(rss107g(79) It is used again in October of the same year (1931) in his Conceprcfrlle Politiccr1 23-24 and then in November 1932 in a conference given to the Langman association of German businessmen later published in VolX find Rricll (February 1913) with the
Htrypk and Schmi f t on flle R l ~ l e cfLrr~t 527
rendered in English as totalitarian state This totalitarian state has more affinities with democracy than with liberalism It is not the result of the strengthened authority and autonomy of the classical liberal state but of its democratic weakening It is against this totalitarian state and against the neutralized liberal democratic state that precedes it that Schmitt advocates the total depoliticization of civil society and the total concentration of political power in an authoritarian state According to Schmitt this new state would survive only if it abandoned popular sovereignty as an assumption This was precisely the mission placed in the hands of the Reichsprctesid~nrHe should cease to be seen as a mere extension of civil society and should rise above it in dictatorial independence and autonomy His authoritarian rule would then signal the advent of a post-democratic state
A second assumption made by nineteenth-century liberalism was the acceptance of the pre-eminence of democratic legitimation over the monarchical principle-l Classical liberalism cannot be said to have been incompatible with the latter On the contrary the monarchical principle represented a viable institutional arrangement to preserve the separation between civil society and the state in so far as the monarch centralized and monopolized political matters Schmitt cleverly perceived that it would be impossible to assail this second assumption of nineteenth-century liberalism and to revive the monarchical principle Still he conceived of a way to dilute and adulterate popular sovereignty so as to render it ineffective Again he focussed his attention on the figure of the Reicl~sprarsidentIt is true that the Weimar constitution established that the R e i c ~ h s p r ~ e s i d e r ~ fwas to be elected popularly But such an election could be interpreted as something different from a democratic election It could be seen as a plebiscitarian acclamation in which certain external formalities of the democratic process were respected but its participatory content denied
[The Reic~lrspvricsidc~17tJis ideally thought of as the man who unifies in himself the trust of the people as a whole beyond the limits of party organization and
programmatic title Starker Staat und gesunde Wirtschaft Heinz 0 Ziegler in a work that owes much to Schmitt draws the distinction between totalitarianism and authoritarianism (Allroritrrerrr odrr fi~ttrlc~r Stnrlt [Tuebingen Mohr 19321) This distinction c o n s t i t ~ ~ t e s the basis for later discussions of this subject Ultimately what Marcuse Fraenkel Neumann Talmon Hayek Popper Friedrich Brzezinski Arendt Barber and Kirkpatrick have to say on this matter is tributary to Schmitt s pioneer work It is interesting to note that Schmitt s distinction between qualitative and q~~ant i t a t ive totalitarianism turns authoritarianism into a variant of the totalitarian state (Starker Staat und gesunde Wirtschaft 84) Compare with Lc~cllitcict trrrcl Lcgitimitrrcr (Muenchen and Leipzig Duncker amp Humblot 1932) 93 and with Schwab Tire Clrtrllcngr c x f E~cepriot~14-46
22 Schmitt Lcgcllirclcr trtrcl Le~irinlircrer 96 Compare with Hayek Tlrr Poliricii1 01clcr ottr Fwe People 195
23 Ibid 93 24 Schmitt 1 2 r ~ c ~ s s ~ ~ t ~ y s l ~ ~ l ~ r c ~ 90-91
528 F R CRISTI
party bureaucracies He is able to do this as the man in whom the whole of the people have placed their trust and not as the member of a political party The election of the Rcichsprclcsident is more than any ordinary democratic election It is the grandiose acclamation of the German people j
The people acclaiming the Rrichsprcie~idrntact as an unorganized mass of electors incapable of deciding on the substantive issues concerning them The people select their leaders in order that they may govern They do not themselves continuously decide on the leaders difficulties and their differences of pinion^ A strong independent leadership is implied strong enough to impose the necessary depoliticization of civil society and prevent its total democratic politicization Still one i 4 bound to ask why a total depoliticization of civil society would be less totalitarian than its total politicization Is it a coincidence that of all the institutions contained in the Weimar constitution only that of the Rricl~~prarsicirrl tsurvived without alterations during the Nazi regime17
A further assumption of nineteenth-century liberalism which Schmitt sought to enervate was the institution of modern parliaments Ideally parliaments embody two principles vital for the government of civil society-discussion and publicity x These constitute the necessary preconditions of rational exchange of ideas and rational decision-making However the full expansion of market relationships during the nineteenth century affected parliamentary functions Disinterested rational debate was no longer possible and the clash of opinions gave way to a clash of irreconcilable interest^^ According to Schmitt it was at that point that parliaments became the instruments by which civil society attempted to control the state depriving it of its autonomy At the same time the democratic component of liberal democracy was meant to produce the politicization of civil society blurring the separation between civil society and the state and depriving parliaments of their monopoly over politics Deputies were bound to lose their traditional representative roles and to become more and more dependent on their electoral basis and on the parties to which they belonged Schmitt concluded that parliamentary governments such as the one defined by the Weimar constitution were doomed to fail The pluralistic tendencies proper to civil society robbed them of their capacity to decide and condemned them to endless discussion and indecision irrevocably torn by party positions and recalcitrant interest groups
25 Ibid 350 26 Ibid 351 27 Compare with Ernst Rudolf Huber Das Staatsoberhaupt des Deutschen Keiches
Z e i t s c ~ l ~ r ~ f i f i i e r 95 (1935) 203 die gesanlre Stacitsreclzt~c~issenscllqfi
28 Schmitt Die geist~sgesclziclztlic~eLuge des I7e11tigerz Purlnmet7tarismm (3rd ed Berlin Duncker amp Humblot 1961) and following pages
29 Ibid 9-10
Hayrk orld Schmirr o n tllc Riilr of Lnis 529
For these maladies Schmitt again advocated the role of a decisionist Rrichsprcrrsicicnt Only he could escape civil societys centrifugal pluralism and standing beyond partisan positions only he could unify the nation by holding the trust of the people as a whole The crucial ingredients in the script Schmitt was preparing for the Rcicllsprorsitlent were contained in art 48 of the Weimar constitution This article invested the Reic~llsprarsitlcntwith extraordinary dictatorial powers to face emergencies including the ability to decree measures that contravened the legally established order It was in this exceptional power that Schmitt saw the constitutive factor of what is defined as the normal situation Norms can only exist because the exceptional and abnormal have been taken care of
Most of those acquainted with Schmitts work have seen in liberalism his principal ideological adversary xO This indeed represents Schmitts own self-understanding I maintain though that this is not the case and that his attacks were directed against the democratic component in nineteenth-century liberalism particularly against the principle of popular sovereignty This comes to light with great clarity after 1933 when he was beginning to be proved right by historical events It is at this point that he began to expand on the limitations of dec i~ ionism~ Decisionism now appeared to him as one-sided as normativism in that it lacked the objectivity needed to legitimate a stable framework for continuous political action There was the danger he recognized in November 1933X2 that the urgencies of the present could obscure the tranquil being (das ruhende Sein) underlying a great political movement That tranquil being should be seen as preceding any movement It constitutes the ground on which stand both a normative state and a decisionist party Schmitts early Fichtean critique of the Kantian rule of law has receded leaving a space for a more moderate Hegelian compromise Hegel is definitely in Schmitts mind when he introduces the notion of concrete order This corresponds to the transcendentally tranquil being embracing both decisionism and normativism as their condition of possibility Immediately modelled on Harious theory of the institution this transcendental order I-emirids us
30 Georg Dahm review of Schmitts Lebtgtrdie Drei Arrcn des Rcc~lrt~tissrnsc~I~t~~ilicI~c~n Dc~trhorsin the citsc~irrififr~rr 95 (1935) 181 die grsrrmte Srtrtrrsrec~l~rsu~issrr~sc~lrqfi [Schmitts works] are from the start determinately aimed at weakening and abolishing the liberal Recirrs~rautand at superseding the legislative state Compare with Hayek Lan Legisluriorl trtrtl Libc~rty vol 1 Rrllrs trnd Order (Chicago University of Chicago Press 1971) 161 note 19 Leo Strauss Comments on Carl Schmitts L ) o Bcgr(fPdrs Pol i t isc~lr~~~i ( f r l l c Poirictrl 82in Tire Co~ri(gt[)r Mathias Schmitz Dic Frt~rrr~ci-F(~it~tl-TI~corit~Crrrl S(rtritt (Koeln amp Opladen Westdeutscher 1965) 127
31 Compare with Schwab T11c~ Clrrrllrr~gc~ o f E-ceptior 87 32 Schmitt Poirische Ti~eologie Preface 33 Schmitt Leher clic Drci Artrrl t l r ~ R c c ~ l r t ~ ~ t ~ i s s c ~ r ~ s c ~ I ~ t ~ f i I i ( ~ I ~ ~ ~ i ~DrtlXc~rs40-44
530 F R CRISTI
of Hegels ethical State According to Schmitt Hegels State is not merely the embodiment of sovereign decision nor the empty position of a norm of norms nor even the fluctuating scenario for alternating situations of emergency and stability Rather one should see in it the concrete order of orders the institution of institutions Neither the impc3rsonal rule of law nor the prrsor1~1measures of a sovereign can monopolize the political sphere Both have their transcendental condition of possibility in an already given sr(prapersona1 ~ r d e r ~
Hayek follows the views of those who think that Schmitts main adversary is liberalism in all its manifestations and that it is precisely this anti-liberal posture that accounts for his smooth conversion to National Socialism in 1933 This particular understanding of Schmitts legal and political theory determines for instance the brief but comprehensive critical account Hayek gives of it in his La Legisllrtion lint1 Liberty
[Schmitts] central belief as he finally formulated it is that from the normative thinking of the liberal tradition law has gradually advanced through a decisionist phase in which the will of the legislative authorities decided on particular matters to the conception of concrete order formation In other words law is not to consist of abstract rules which make possible the formation of a spontaneous order by the free action of individuals through limiting the range of their actions but is to be the instrument of arrangement o r organization by which the individual is made to serve concrete purposes This is the inevitable outcome of an intellectual development in which the self-ordering forces of society and the role of law in an ordering mechanism are no longer understood
34 Ibid 45-57 There is a certain ambiguity in Schmitts relation to Hegel apparently a product of a reference to the latter in his book Srcitrr Reuegetng ltnd LolX (Hamburg Hanseatische 1933) In it he states in connection with Hitlers being designated chancellor on January 30 1933 Accordingly one can say that on this day Hegel died Marcuse for instance stops here and does not read any further (Marcuse Ncgtr t iot i~[Boston Beacon 19671 275 note 79) Compare with Henning Ottmann I t~t l i~~i t l icc~m bc~i f fc qr l vol 1 (Berlin de Gruyter 1977) 222 n451)tintlGc~rrrc~insc~lrrfi The cont in~~at ion of the text though speaks for itself This does not mean that the great work of this German political philosopher has lost its significance and that the idea of a political leadership that transcends the egoism of social interests sho~lld be abandoned What is truly German and perennial of the powerful spiritual construction erected by Hegel c o n t i n ~ ~ e s (32) Again in to be valuable for the new formation 1935 Schmitt identifies his opposition to the rule of law or Rrc~ht~srtrtrras Hegelian The true antithesis to the Rrclrrsstrrrrr is not a Niclrr-Rrci~rtsrarrr but Hegels StttIiclrXritttrtrt (ethlcal state) See Schmitt Was bedeutet der Streit um den Rechtsstaat rircrr~fi f i ~ c ~ r 95 (1935) clic gcJscrmrr Sttrnr rc~c l~t t~t i cnt t~~t~f i
189-91 35 Schm~t t LPhrr die Drci Artc11 dc Rcc~lrt~~t~irorc~iri~filic~ire~~eDcnXc~l47 36 Ibid 13 37 Hayek Rolc5 titrtl O r t l o 71
Nrryek and Scllrnitt on the Rtlle q f L a u ) 531
Schmitts notion of concrete order formation is interpreted here as an arrangement resulting from the deliberations and conscious decisions of particular individuals In Hayeks own system this corresponds to what he describes as organizations and his conception of law as tllrsis as opposed to nornoc In this respect Schmitts notion of concrete order becomes the ideal vehicle for decisionism in so far as organizations and law as thesis presuppose the agency of personally active individuals Hayek though disregards the supra-personal nature that Schmitt ascribed to his notion of order and by means of which he intended to modify the one-sidedness of his earlier position This interpretation allows Hayek to defend adiametrically opposed conception of order He describes this as a system of abstract relations and interactions where abstract reason and not will becomes the dominant factor Reason simply contemplates the unfolding of a spontaneous natural order which is the result of an evolutionary process the spontaneous outcome ofcustoms and established practices not of human design I submit that Hayek misrepresents Schmitts notion of order as containing purely decisionist elements3R This misrepresentation is functional to his system of thought for it allows him to believe that a great distance separates him from Schmitt In like manner his own self-understanding tends to overlook the decisionist potential that lies dormant in his own conception of order In what follows I will make some general observations that should shorten the distance that Hayek intends to maintain between his own conception of order and that of Schmitt
In the first place I think that Schmitts expressed intention to move away from an exclusively decisionist phase in his thought should be taken seriously His earlier one-sided posture can be attributed to what he saw as an extraordinary weakening of the role of authority during the Weimar period and to h ~ s desire to enhance the role of the Rriclisprarsitlent This is why he came out so strongly against any attempt to water down and enervate the decisionist nature of art 48 After 1933 though when a decisionist course of action had finally prevailed and it appeared as if all crucial decisions had been taken by the Frrehrer Schmitt saw the need to consolidate the regime giving it a measure of stability A superior supra-personal standpoint transcending both decisionism and normativism appeared to him as the indispensable condition to help configure an objective framework that could mediate between state and civil society An important indicator of this attitude is Schmitts effort to move closer to Hegel In Hegels political philosophy he was able to see a form of decisionism that could
38 Schrnitts notion of concrete order surely contains decisionist elements (compare with the requirement of a in his Lthcr ciic D r r iF i i c l r r e x r i ~ r ~ t i ( ~ t i l r r c ~ r ~ tic Rltci i t ~ ~ ~ i ~ ~ c ~ ~ ~ c ~ l ~ t r i i l i c ~ I ~ ( ~ r ~ cannotDc11Xct7t63) Still this principle of leadership operate in a void It is in this latter sense that Schmitts notion of concrete order formation is supraper~onal
532 F R CRISTI
fit within a wider structure that could be contained organically side by side a normative order This explains why Hegels monarch does not strike us immediately as a decisionist figure He may appear to be dormant emptily adding his signature to decisions made by others But in times of emergency he will awake and the gates of his decisionist power will be flung open Hegels conservative monarch as the beginning and apex ofthe whole is his formula to arrest market societys self-destructive competitive race The State presided over by the monarch will not result from contractual arrangements but appears as already constituted as a substantive order predating the individual existence of its membersThis stands well with Schmitts conservative Catholicism That it does not contradict Hayeks contractarianism will be considered shortly
Second there are some decisionist elements visible in Hayeks apparently pure normativist approach He accepts without reservation a principle postulated by Schmitt in his writings namely that democracy and liberalism are logically unrelated answers to logically unrelated questions Hayek writes
Liberalism and democracy although compatible are not the same The difference is best seen if we consider theiropposites the opposite of liberalism is totalitarianism while the opposite of democracy is authoritarianism In conseqilence it is at least possible in principle that a democratic government may be totalitarian and that an authoritarian government may act on liberal principles That a liberal polity may be open to authoritarian rule does not appear contradictory to Hayek In agreement with Schmitt he too distinguishes sharply between civil society and the state The autonomy and independence reserved to the state is what grounds its authoritarian potential Hayek though appears to be explicitly opposed to what he sees as the growing predominance of central planning and proposes a merely negative role for the state The state should abstain from intervening in the affairs proper to civil society Correspondingly his notion of an abstract order presupposes civil societys capacity for self-regulation and confirms the dethronement of politics within that ~ p h e r e ~ Still the negative tasks ascribed to the state are determined and sustained by the action of the state itself It is thus positively and actively that the state restricts and limits its action to a mere1 y negative one so that the depoliticization of civil society turns dialectically into the states active preservation of its monopoly over the political as such
39 Compare with my article The Mitt( and Hegels Monarch f fcgc~lsc~rc folitictr1 TIr(~oi l l (1983) 601-22
30 Hayek Stitdic in Pliilosoplr Politic~c cltid Ecotlotric s 161 41 Hayek Lci~t L~~ ~ i t c t t i o t r trtrd Lil~crty vol 2 Tlrc Zlirtrqe cSocici Jiiticc (Chicago
The University o fch icago Press 197h) 102-03 Tlrc Politic (lIOrdcr(t o Pi(c Socicty 130 139-50
Hrryrk and Schmitt on rllr Rlrle c t f Lau 531
Whenever the normal working of civil society becomes in any iJagt imperilled so that its spontaneous order must be converted into an organization the knowledge of such a situation and the decision to alter the spontaneous order of civil society lie beyond its powers in so far as they are recognized as being of a political nature Hayek admits that the power to declare a state of emergency belongs to the state And it does not escape his attention that there is some plausibility in Schmitts contention that whoever has the power to proclaim an emergency and on this ground suspend any part of the constitution is the true ~overeign~ It appears as if Hayek has not been able to exorcise this ugly notion of sovereignty and that Bolingbrokes dictum-there must be an absolute unlimited and uncontroulable [sic] power lodged somewhere in every government43-would still be true Hayek offers a series of precautionary measures aimed at avoiding a relapse into an unbalanced decisionist posture I will not discuss at this point whether these measures are effective or not I will only say that decisionist elements are potentially incorporated into his system in so far as essential to it is the separation between state and civil society
Finally I think it is possible to show that this potential decisionism built into Hayeks system does not remain as a purely potential moment Behind the rule of law which abstractly rationally and objectively configures the institutions of government one should be able to see the actual decision to abide by such a rule And this decision finds its motivation and force not in the realm of pure rational law but in the obscure recesses of material civil society The rule of law is expressed by abstract general rules which regard all individuals as equal however unequal they may in fact be Its rationality can thus be taken as purely formal compatible with democratic methods4 but not with a Rousseauan democracy as the identity between rulers and ruled In fact as Hayek himself admits the order that sustains the rule of law is the product not of any rational design but of a process of evolution and natural selection an unintended product whose function we can learn to understand but whose present significance may be wholly different from
42 Hayek The Political Order qf a Free People 125 43 Bolingbroke The Idea qf a P(lrrior King S W Jackman (ed) (Indianapolis
Bobbs-Merrill 1965) 18 44 Joseph Raz has perceived the compatibility of the rule of law as Hayek understands
it with nondemocratic systems (The Rule of Law and its Virtue The L U M Qrarterly Re~ iet t 93 [1977] 196) A non-democratic legal system based on the denial of human rights on extensive poverty on racial segregation sexual inequalities and religious persecution may in principle conform to the requirements of the rule of law better than any of the legal systems of the more enlightened western democracies This does not mean that it will be better than those western democracies It will be an immeasurably worse legal system but it will excel in one respect in its conformity to the rule of law Compare with John Gray Hayek on Liberty Rights and Justice Ethics 92 (19811 77-78
534 F R CRISTI
the intention of its creator^ldquo^ This order though is not abstract and void but represents a particular class s t r ~ c t u r e ~ Some individuals will be better represented by it than others namely those individuals whom Hayek sees as belonging to groups which happen to have adopted rules conducive to a more effective order of action [and which] will tend to prevail over groups with a less effective order- This determines the constitution of natural ranks whose privileges and correlative disadvantages do not depend on the will of anybody in particular but should be seen as arising in a purely accidental fashion The rule of law that presides over this concrete and particular order of things is surely blind to its own particularity I see in this though more than just a natural blindness it is a disturbingly clear-sighted will and desire not to see
Hayeks political theory envisages an individualist view of human liberty and a contractarian view of society Yet he has appeared as a staunch defender of a social hierarchy which individuals are not free to choose How can he embrace these views without contradiction How can he be both liberal and conservative Just as Schmitt finds an answer to these queries in Hegels conservative-liberal political philosophy so Hayek traces his steps back to Hume the philosopher he admires most In Hume he is able to read the ideology of a liberal progressive aristocracy open to change innovation and industry In this respect the social hierarchy envisaged by Hume does not depend on anybodys particular merit or virtue So great is the uncertainty of merit both from its natural obscurity and from the self-conceit of each individual that no determinate rule of conduct could ever follow from it18 Individuals are allocated places in that hierarchy by chance and circumstance for instance by the accident of their natural birth The sovereignty of the people can then be replaced by the sovereignty of nature In this manner we are preserved from our selfishness and limited generosity Nature teaches us to accept the solidarity of subservience And it is this natural rank solidarity that preserves civil society from chaos and competitive anarchy A contemporary of Hume Samuel Johnson expressed the same when he told his friend Boswell Thus sir there would be a perpetual struggle for precedence were there no
45 Hayek TI( M i r t r ~ c of Socinl J~rst ice 79 36 A parallel objection is raised by Fraenkel against Schmitts notion of concrete order
(Tlic Drrtrl State 145) The problem of the concrete theory of order transcends the limits of the system of concrete communities This problem demands solution by decisionism and since there is no norm this decision-to employ Schmitts terminology-must be derived from a void In reality however this void is not advoid at all It is the value system associated with the class structure ofpresent-day society
47 Hayek Tlic Mirtrgc~ oSocitrl J~fi t iccj 16 48 Hume An Inyrri Concrrnini tiic Iirinciplrc of MorciIs in H r l r n r ~Ecctr (London
George Routledge 1894) 422
fixed invariable rules for the distinction of rank which creqes PO
jealousy as it is allowed to be a c ~ i d e n t a l ~ ~
39 Boswell in Tlir Lifc ofScinii(c Jolrnso~i A Napier (ed ) vol I (London George Routledge 1892) 356 Compare with David Miller Hume and Possessive Individualiam his to^ i loiiticcil Tlror~glit 1 (1980) 277
govern by esiablished standing laws promulgated and known to the people and not by extemporary decrees Ex post facto interference in the affairs of civil society is thereby ruled out Laws must be abstract and general independent from the particular will of the legislator and independent too from the particular ends of particular people Their standing characteristic is indicative of their persistence and endurance Laws then must be distinguished from measures which are always concrete particular and extemporary According to Hayek it is precisely the generality and persistence of laws that can equally protect all individuals from prerogative and arbitrary authority In his view the foundations of liberalism lie in this objective encirclement of authority In other words liberalism of itself does not appear to be incompatible with coercion on condition that the authorities that administer it allow all individuals equally to foresee the entire course of their own action Surely this represents a purely procedural condition and as Hayek himself admits the rule of law remains indifferent to the consequences of its application The emergence of substantive differences among individuals is of no concern to it Individual freedom is only imperiled when one attempts to modify and correct such outcomes by means of state intervention Hayek is perhaps best known for insisting that any transgression of the rule of law whatever its extent places us on the road to totalitarianism
In Hayeks view Carl Schmitts critique of liberalism and the rule of law and his defence of decisionism during the Weimar republic and then his prominent role in the years of consolidation of the Nazi regime contributed greatly to the precipitation of one of the most serious crises of European liberalism- Schmitt according to Hayek should be seen as the leading Nazi theoretician of totalitarianismHe was the first to embark on a philosophical investigation of totalitarianism In no longer finding meaning in the separation between state and civil society he hit upon the essence of [its] definition To a certain extent Hayeks assessment of Schmitts legal and political philosophy as it appeared in his enormously influential The Rolrd to Serfdom explains why the latters work has been for the most part ignored in the English-speaking
3 Locke Sccot~i Trctiricc 0 1 7 C B Macpherson (ed) (Indianapolis G o ~ ~ r t ~ t l r t ~ r Hackett 1980) 68 Compare with H L A Hart T I ~ PConicpr it Lt i l~ (Oxford Clarendon 1961) chap 2
4 Hayeks acquaintance with Schmitts legal and political theory is extensive He recognizes in him an extraordinary German student of politics who in the 1920s probably understood the character of the developing form of government better than most people and then regularly came down on what appears both morally and intellectually the wrong side (Friedrich A Hayek Ltril Lrgilntiorr rind Liberty vol 3 TIrc Politicril O r d c o rr Frc~c Pc~ol~lr [Chicago The University of Chicago Press 19731 193)
5 Friedrich A Hayek Tlic Rotrd ro Serftiom (Chicago The Uniersity of Chicago Press 19143 187
6 Ibid 187
Abstract According to Hayek the rule of law constitutes the foundation of liberalisms political and legal theory General and abstract laws as opposed to concrete measures protect individual freedom from prerogative and arbitrariness (normativism versus decisionism) Hayek maintains that Carl Schmitts decisionism explains his attacks on liberalism and the prominent role he played in support of Hitlers regime Two general observations should shorten the distance that Hayek seeks to establish between his posture and that of Schmitt Firstly Schrnitts critique is primarily aimed against the tendency that neutralizes the state and makes it vulnerable to democratic pressures Secondly Hayeks normativism is seen to contain a decisionist potential
Resume Selon Hayek letat de droit est le fondement de la theorie politique et legale du liberalisme Des lois generales et abstraites contrairement aux mesures concretes protegent la liberte individuelle de la prerogative et de Iarbitraire (normativisme versus decisionisme s) Hayek soutient que le decisionisme de Carl Schmitt explique sa refutation au liberalisme et son adhesion au National-socialisme en 1933 Dapres moi il faut absolument raccourcir la distance que Hayek essaie detablir entre sa position et celle de Schmitt Dabord la critique de Schmitt est dirigee contre la tendance de neutraliser letat laquelle le fait vulnerable aux pressions democratiques Ensuite le normativisme de Hayek contient un decisionisme potentiel
world7 It is with some hesitation that I attempt to rescue from this oblivion an author who has deservedly been accused of being the Mephisto of the pre-Hitler era (Loe~ens t e in ) ~ It was the success of his interpretation of the Weimar constitution particularly after the breakdown of the Great Coalition and the consolidation of the presidia1 system in March 1930and then his personal friendship with prominent members of the Nazi hierarchy that allowed him access to Hitlers regime and to become in the words of Hayek its Kronj~r~ i s t ~
Hayeks legal and political theory has in large measure evolved as an attempt to defend liberalism and the rule of law from Schmitts attacks Indeed his arguments in this respect can be seen as representing the exact counterpart of the latters legal and political theory One does not supersede an adversary position though merely by erecting its counterposition in so far as every negation is at the same time determination What generally happens when one proceeds in this manner is that the position one is attacking is not transcended but tends to be preserved as an obverted mirror-image Something like this has happened to Hayek Some of Schmitts basic assumptions have penetrated his philosophy of liberty effectively determining the content of his argumentation
7 Two American historians have recently devoted attention to Schmitt George Schwab Tlrc Clrtrllenge cfErceptiot~ A n 1ntrod11ctiotl to t l ~ c Political Ideas cfCarl Schmitt hetlceen 1921 a t ~ dI936 (Berlin Duncker amp Humblot 1970) and Joseph Bendersky Carl S(rri~itt Tl7eorist ti) tile Reic11 (Princeton Princeton University Press 1983) Fordiscussions of Schmitts reception in the English-speaking world see Joseph Bendersky Carl Schmitt Confronts the English-Speaking World C~t l ( rd i (~ t l oP~litic~(~l~~t~~iS~(~i~lJ O I I I I I ( I ~ T~eor2 ( 1978) 125-35 and George Schwab Schmitt Scholarship ibid 4 (1980) 149-55
8 Compare with Wolfgang Mommsen M0u Wehr r ltnd dir D c ~ ~ t c l ~ c Politik 1890-I920 (2nd ed Tuebingen Mohr 1974) 408 11156
9 Friedrich A Hayek S r ~ t d i c ~ ~ folitic~~ (Chicago The it1 PI~iloso~~hy (1t1li Ec~otlorili(~ University of Chicago Press 1967) 169
Although Hayek has a point in stressing Schmitts contribution to Nazi ideology he is wrong in stating that his fundamental motivation was anti-liberal Schmitts main concern was the democratic component that had according to him spuriously adhered to classical liberalism during the nineteenth century What he actually objected to was liberalisms inability to preserve its main body of doctrine free from democratic contamination My aim in this article is to correct Hayeks distorted interpretation of Schmitts work As a result it should appear that in spite of Hayeks prudential commitment to democratic methods the distance he seeks to establish between his own position and that of Schmitt is reduced
Schmitts legal theory rests on the distinction between two polarly contrasted conceptions of law-normativism and decision-ism Normativism according to Schmitt represents the rule of generality and pure rationality General abstract laws take no account of particular c ircumstances and intent ions and follow a nonconsequentialist path Normativism expresses the domination of ratio over of Lex~o l rrn ta~ over Rex The indifferent legalism that ensues marches hand in hand with capitalist rationalism supporting a mechanism which according to Schmitt indifferently satisfies with equal exactitude any and every demand whether it be for silk blouse or poison gasll The rule of law finds its most articulate philosophical expression in Kants legal philosophy Kantian liberals like Kelsen were responsible for the primordially normativist interpretation of the Weimar constitution
Decisionism on the contrary is the rule of particular concrete measures It represents the domination of lol~rntasover ratio and is best defined by the Hobbesian formula Auctoritas non teritasfacit legem12 Law is in essence command the deliberate issuing of orders Behind the abstract generality of norms one always finds the concrete interests of a willWoreover norms can only be defined against the background
10 Carl Schmitt Politische Theologie Vier Kupi te l ~ r r Lehre von der Soroeroenitaet (2nd ed Muenchen amp Leipzig Duncker amp Humblot 1934) 25-46 Verfass~rngslekre (Berlin Duncker amp Humblot 1928) 139-42 Ueber die Dre i Arten des Rec~ l l t s~ l~ i s s ensc~ i l i c l i e t~Denkens (Hamburg Hanseatische 1934) 11-29
11 Quoted in Emst Fraenkel The Drrol Stcrte (New York Octagon Books 1969) 207 I Carl S c h m i t t D i e D i k t u t r r r Votl d e n Anfaetzgetz des 1nodert1et1
Sor(~eruenitcretsgedcinkens bis rim prolettrriscl~eti K lassenka tn~ f (2nd ed Muenchen and Leipzig Duncker amp Humblot 1928) 22
13 According to Schmitt it is the existential quality of a will its power and authority that determines the validity of norms Thus the Weimar constitution should not be interpreted as a self-validating functional legal system Its validity is objectively determined by the political will of the nation It rests on the existential totalitarian will of the German people (Verf i~ssltngslehre24)
of the exceptional It is ultimately the explanatory and existential force of the exceptional and extraordinary which sustain what is to be considered normal and ordinary Schmitt quotes from Kierkegaard The exception explains the universal so that when one wishes to study the universal all one needs to do is to consider a warranted exception The exceptional will place everything in a much clearer light than the universal itself- For Schmitt then the legally normal is defined and explained by an extraordinary will the will of the sovereign As an abstract concept a sovereign is simply he who decides on the state of exception In principle there can be no definition of the exceptional At best one can approach this question in terms of a political theology and operate on the analogy afforded by the supreme command of God over creation Political theology then explains the unlimited powerlf secular sovereigns by their participation in Gods omnipotence The decision that suspends the rule of law can in similar fashion be explained as a miracle According to Schmitt nineteenth-century liberalism effectively suppressed awareness of the voluntarist foundations that ground the rule of law But one had simply to look behind its euphoric faqade to perceive the prose of Roman sovereignty
Armed with this simple distinction Schmitt set out to uncover and free the decisionist elements he saw repressed by the overtly normativist nature of the Weimar constitution Instead of the Reicl~rtrgwhich he perceived as lacking in vigour and resolution he pointed his finger in the direction of the Riclzsprr~csidrnras the constitutional figure containing the most decisionist potential The Rrichsprt~esid~ntwas an anomaly in the Weimar constitutional design Owing much to Webers idea of a charismatic leader he provided a substitute for the role previously held by the throne But beyond the intentions of the jurists that devised his role the course of events was partly responsible for his elevation from what could have been a purely decorative function to supreme arbitrator to protector of the constitution to sovereign ruler of the state Schmitt followed that ascending career step by step and was perhaps solely responsible for helping to chart that course clearing from it ideological obstacles and reservation^^^
Among these were a number of assumptions made by Weimar liberalism which were the result of accretions to the classical core of
14 Sbren Kierkegaard Dicj Wic~cierliol~ctig Gr5 Wcrkc~(Duesseldorf Eugen Diederichs 1967) 93 Quoted by Schmitt in his Politiclrr Tlrc~ologic 11
15 Schmitt Polit icc~c~Tlieologic~11-12 16 It is a different story when Schmitt descends from this abstract plane to the concrete
applications of s o ~ e r e i g n t y In the Appendix to his Dicj D i k t c i t ~ ~ t he denies that the Rc~icl i sl~tcic~sicletlt embody the p lc t l i t~ ido potectat~i which thecan was accorded monarch in the Prussian constitution for instance (Schmitt Dlc DiXtert~cr dcr Rc~it~Iispt~ctc~sielrtitc~t1t ~ ( t ( i111t48 elcit Writtcitor lc~tfi~cotry appendix to Die DiXtcittrt 36-37)
17 Heinrich Muth Carl Schmitt in der Deutschen lnnepolitik des Sommers 1932 Nicto~icclicLci tsc~ri f t Beiheft (1971) 75-147
526 F R CRISTI
liberalism in its secular efforts to accommodate rising democratic pressures It was against these democratically determined assumptions that Schmitt concentrated his fire The first was the democratic erosion of the liberal distinction between the state and civil society 18 Liberalism conceived civil society as the protected domain of individual rights The function of the rule of law was to eliminate any unwanted interference in this sphere At the same time-and this is often overlooked-the separation from civil society secured a protected domain for the state as well thus granting it the monopoly of the political as such Confronting the pluralism of civil society the state embodied its political unity In this manner the classical liberal state was assured of autonomy and independence For classical liberalism then the states most important function was to prevent the politicization of civil society restraining all democratic efforts aimed specifically at abolishing the separation of labour and capital Liberal governments present a duality which perhaps nobody has expressed with greater clarity than Constant le gouvernement en dehors de sa sphere ne doit avoir aucun pouvoir dans sa sphere il ne saurait en avoir troplg Now as Schmitt saw it the advance of democracy within the Weimar republic fatally compromised the authority of this liberal state and eroded the distinction between spheres and competences Democracy demands an identity between civil society and the state and its pressures from below have the effect of weakening the state as an autonomous political entity The nineteenth-century liberal state in response to these same pressures had become progressively neutralized losing its monopoly over politics20 Politics had thus transferred its locus from the state to civil society This is what properly characterized the historic compromise between liberalism and democracy But according to Schmitt this could only be a very unstable compromise for the diffusion of politics to the extent that it could become the property of society signified not only the end of the authoritarian state of classical liberalism but also the end of the liberal democratic state itself Total politicization of civil society signals the emergence of a new state Inspired by Juengers notion of totale Mobilmachrrng Schmitt calls this new state total state21 later
18 Schmitt Drr Hurter drr Verfcrss~tng (2nd ed Berlin Duncker amp Humblot 1969) 73 The first edition of this work was published in March 1931
19 Quoted in Wilhelm Roepke Ci~iras H~rmunu (London W Hodge 1948) 28 20 Schmitt Tllr Concrpt cftl7e Politicul trans by George Schwab (New Brunswick
Rutgers University Press) 22 Compare with Max Weber T17r Tl7ror ofSociu1 clnd Econornic 0rgrini-ution (New York Free Press 1968) 156 Hayek TI[( Cotlstir~rfion r f L i h c r t ~ 21 Robert Nozick in his Antrrcliy Srcrrc clrld Cropicl (New York Basic Books 1974) 23 explicitly refers to Weber in this respect
21 Schmitt uses this notion forthe first time in D r ~ F l ~ ~ c ~ r r r d c rILtf(rss107g(79) It is used again in October of the same year (1931) in his Conceprcfrlle Politiccr1 23-24 and then in November 1932 in a conference given to the Langman association of German businessmen later published in VolX find Rricll (February 1913) with the
Htrypk and Schmi f t on flle R l ~ l e cfLrr~t 527
rendered in English as totalitarian state This totalitarian state has more affinities with democracy than with liberalism It is not the result of the strengthened authority and autonomy of the classical liberal state but of its democratic weakening It is against this totalitarian state and against the neutralized liberal democratic state that precedes it that Schmitt advocates the total depoliticization of civil society and the total concentration of political power in an authoritarian state According to Schmitt this new state would survive only if it abandoned popular sovereignty as an assumption This was precisely the mission placed in the hands of the Reichsprctesid~nrHe should cease to be seen as a mere extension of civil society and should rise above it in dictatorial independence and autonomy His authoritarian rule would then signal the advent of a post-democratic state
A second assumption made by nineteenth-century liberalism was the acceptance of the pre-eminence of democratic legitimation over the monarchical principle-l Classical liberalism cannot be said to have been incompatible with the latter On the contrary the monarchical principle represented a viable institutional arrangement to preserve the separation between civil society and the state in so far as the monarch centralized and monopolized political matters Schmitt cleverly perceived that it would be impossible to assail this second assumption of nineteenth-century liberalism and to revive the monarchical principle Still he conceived of a way to dilute and adulterate popular sovereignty so as to render it ineffective Again he focussed his attention on the figure of the Reicl~sprarsidentIt is true that the Weimar constitution established that the R e i c ~ h s p r ~ e s i d e r ~ fwas to be elected popularly But such an election could be interpreted as something different from a democratic election It could be seen as a plebiscitarian acclamation in which certain external formalities of the democratic process were respected but its participatory content denied
[The Reic~lrspvricsidc~17tJis ideally thought of as the man who unifies in himself the trust of the people as a whole beyond the limits of party organization and
programmatic title Starker Staat und gesunde Wirtschaft Heinz 0 Ziegler in a work that owes much to Schmitt draws the distinction between totalitarianism and authoritarianism (Allroritrrerrr odrr fi~ttrlc~r Stnrlt [Tuebingen Mohr 19321) This distinction c o n s t i t ~ ~ t e s the basis for later discussions of this subject Ultimately what Marcuse Fraenkel Neumann Talmon Hayek Popper Friedrich Brzezinski Arendt Barber and Kirkpatrick have to say on this matter is tributary to Schmitt s pioneer work It is interesting to note that Schmitt s distinction between qualitative and q~~ant i t a t ive totalitarianism turns authoritarianism into a variant of the totalitarian state (Starker Staat und gesunde Wirtschaft 84) Compare with Lc~cllitcict trrrcl Lcgitimitrrcr (Muenchen and Leipzig Duncker amp Humblot 1932) 93 and with Schwab Tire Clrtrllcngr c x f E~cepriot~14-46
22 Schmitt Lcgcllirclcr trtrcl Le~irinlircrer 96 Compare with Hayek Tlrr Poliricii1 01clcr ottr Fwe People 195
23 Ibid 93 24 Schmitt 1 2 r ~ c ~ s s ~ ~ t ~ y s l ~ ~ l ~ r c ~ 90-91
528 F R CRISTI
party bureaucracies He is able to do this as the man in whom the whole of the people have placed their trust and not as the member of a political party The election of the Rcichsprclcsident is more than any ordinary democratic election It is the grandiose acclamation of the German people j
The people acclaiming the Rrichsprcie~idrntact as an unorganized mass of electors incapable of deciding on the substantive issues concerning them The people select their leaders in order that they may govern They do not themselves continuously decide on the leaders difficulties and their differences of pinion^ A strong independent leadership is implied strong enough to impose the necessary depoliticization of civil society and prevent its total democratic politicization Still one i 4 bound to ask why a total depoliticization of civil society would be less totalitarian than its total politicization Is it a coincidence that of all the institutions contained in the Weimar constitution only that of the Rricl~~prarsicirrl tsurvived without alterations during the Nazi regime17
A further assumption of nineteenth-century liberalism which Schmitt sought to enervate was the institution of modern parliaments Ideally parliaments embody two principles vital for the government of civil society-discussion and publicity x These constitute the necessary preconditions of rational exchange of ideas and rational decision-making However the full expansion of market relationships during the nineteenth century affected parliamentary functions Disinterested rational debate was no longer possible and the clash of opinions gave way to a clash of irreconcilable interest^^ According to Schmitt it was at that point that parliaments became the instruments by which civil society attempted to control the state depriving it of its autonomy At the same time the democratic component of liberal democracy was meant to produce the politicization of civil society blurring the separation between civil society and the state and depriving parliaments of their monopoly over politics Deputies were bound to lose their traditional representative roles and to become more and more dependent on their electoral basis and on the parties to which they belonged Schmitt concluded that parliamentary governments such as the one defined by the Weimar constitution were doomed to fail The pluralistic tendencies proper to civil society robbed them of their capacity to decide and condemned them to endless discussion and indecision irrevocably torn by party positions and recalcitrant interest groups
25 Ibid 350 26 Ibid 351 27 Compare with Ernst Rudolf Huber Das Staatsoberhaupt des Deutschen Keiches
Z e i t s c ~ l ~ r ~ f i f i i e r 95 (1935) 203 die gesanlre Stacitsreclzt~c~issenscllqfi
28 Schmitt Die geist~sgesclziclztlic~eLuge des I7e11tigerz Purlnmet7tarismm (3rd ed Berlin Duncker amp Humblot 1961) and following pages
29 Ibid 9-10
Hayrk orld Schmirr o n tllc Riilr of Lnis 529
For these maladies Schmitt again advocated the role of a decisionist Rrichsprcrrsicicnt Only he could escape civil societys centrifugal pluralism and standing beyond partisan positions only he could unify the nation by holding the trust of the people as a whole The crucial ingredients in the script Schmitt was preparing for the Rcicllsprorsitlent were contained in art 48 of the Weimar constitution This article invested the Reic~llsprarsitlcntwith extraordinary dictatorial powers to face emergencies including the ability to decree measures that contravened the legally established order It was in this exceptional power that Schmitt saw the constitutive factor of what is defined as the normal situation Norms can only exist because the exceptional and abnormal have been taken care of
Most of those acquainted with Schmitts work have seen in liberalism his principal ideological adversary xO This indeed represents Schmitts own self-understanding I maintain though that this is not the case and that his attacks were directed against the democratic component in nineteenth-century liberalism particularly against the principle of popular sovereignty This comes to light with great clarity after 1933 when he was beginning to be proved right by historical events It is at this point that he began to expand on the limitations of dec i~ ionism~ Decisionism now appeared to him as one-sided as normativism in that it lacked the objectivity needed to legitimate a stable framework for continuous political action There was the danger he recognized in November 1933X2 that the urgencies of the present could obscure the tranquil being (das ruhende Sein) underlying a great political movement That tranquil being should be seen as preceding any movement It constitutes the ground on which stand both a normative state and a decisionist party Schmitts early Fichtean critique of the Kantian rule of law has receded leaving a space for a more moderate Hegelian compromise Hegel is definitely in Schmitts mind when he introduces the notion of concrete order This corresponds to the transcendentally tranquil being embracing both decisionism and normativism as their condition of possibility Immediately modelled on Harious theory of the institution this transcendental order I-emirids us
30 Georg Dahm review of Schmitts Lebtgtrdie Drei Arrcn des Rcc~lrt~tissrnsc~I~t~~ilicI~c~n Dc~trhorsin the citsc~irrififr~rr 95 (1935) 181 die grsrrmte Srtrtrrsrec~l~rsu~issrr~sc~lrqfi [Schmitts works] are from the start determinately aimed at weakening and abolishing the liberal Recirrs~rautand at superseding the legislative state Compare with Hayek Lan Legisluriorl trtrtl Libc~rty vol 1 Rrllrs trnd Order (Chicago University of Chicago Press 1971) 161 note 19 Leo Strauss Comments on Carl Schmitts L ) o Bcgr(fPdrs Pol i t isc~lr~~~i ( f r l l c Poirictrl 82in Tire Co~ri(gt[)r Mathias Schmitz Dic Frt~rrr~ci-F(~it~tl-TI~corit~Crrrl S(rtritt (Koeln amp Opladen Westdeutscher 1965) 127
31 Compare with Schwab T11c~ Clrrrllrr~gc~ o f E-ceptior 87 32 Schmitt Poirische Ti~eologie Preface 33 Schmitt Leher clic Drci Artrrl t l r ~ R c c ~ l r t ~ ~ t ~ i s s c ~ r ~ s c ~ I ~ t ~ f i I i ( ~ I ~ ~ ~ i ~DrtlXc~rs40-44
530 F R CRISTI
of Hegels ethical State According to Schmitt Hegels State is not merely the embodiment of sovereign decision nor the empty position of a norm of norms nor even the fluctuating scenario for alternating situations of emergency and stability Rather one should see in it the concrete order of orders the institution of institutions Neither the impc3rsonal rule of law nor the prrsor1~1measures of a sovereign can monopolize the political sphere Both have their transcendental condition of possibility in an already given sr(prapersona1 ~ r d e r ~
Hayek follows the views of those who think that Schmitts main adversary is liberalism in all its manifestations and that it is precisely this anti-liberal posture that accounts for his smooth conversion to National Socialism in 1933 This particular understanding of Schmitts legal and political theory determines for instance the brief but comprehensive critical account Hayek gives of it in his La Legisllrtion lint1 Liberty
[Schmitts] central belief as he finally formulated it is that from the normative thinking of the liberal tradition law has gradually advanced through a decisionist phase in which the will of the legislative authorities decided on particular matters to the conception of concrete order formation In other words law is not to consist of abstract rules which make possible the formation of a spontaneous order by the free action of individuals through limiting the range of their actions but is to be the instrument of arrangement o r organization by which the individual is made to serve concrete purposes This is the inevitable outcome of an intellectual development in which the self-ordering forces of society and the role of law in an ordering mechanism are no longer understood
34 Ibid 45-57 There is a certain ambiguity in Schmitts relation to Hegel apparently a product of a reference to the latter in his book Srcitrr Reuegetng ltnd LolX (Hamburg Hanseatische 1933) In it he states in connection with Hitlers being designated chancellor on January 30 1933 Accordingly one can say that on this day Hegel died Marcuse for instance stops here and does not read any further (Marcuse Ncgtr t iot i~[Boston Beacon 19671 275 note 79) Compare with Henning Ottmann I t~t l i~~i t l icc~m bc~i f fc qr l vol 1 (Berlin de Gruyter 1977) 222 n451)tintlGc~rrrc~insc~lrrfi The cont in~~at ion of the text though speaks for itself This does not mean that the great work of this German political philosopher has lost its significance and that the idea of a political leadership that transcends the egoism of social interests sho~lld be abandoned What is truly German and perennial of the powerful spiritual construction erected by Hegel c o n t i n ~ ~ e s (32) Again in to be valuable for the new formation 1935 Schmitt identifies his opposition to the rule of law or Rrc~ht~srtrtrras Hegelian The true antithesis to the Rrclrrsstrrrrr is not a Niclrr-Rrci~rtsrarrr but Hegels StttIiclrXritttrtrt (ethlcal state) See Schmitt Was bedeutet der Streit um den Rechtsstaat rircrr~fi f i ~ c ~ r 95 (1935) clic gcJscrmrr Sttrnr rc~c l~t t~t i cnt t~~t~f i
189-91 35 Schm~t t LPhrr die Drci Artc11 dc Rcc~lrt~~t~irorc~iri~filic~ire~~eDcnXc~l47 36 Ibid 13 37 Hayek Rolc5 titrtl O r t l o 71
Nrryek and Scllrnitt on the Rtlle q f L a u ) 531
Schmitts notion of concrete order formation is interpreted here as an arrangement resulting from the deliberations and conscious decisions of particular individuals In Hayeks own system this corresponds to what he describes as organizations and his conception of law as tllrsis as opposed to nornoc In this respect Schmitts notion of concrete order becomes the ideal vehicle for decisionism in so far as organizations and law as thesis presuppose the agency of personally active individuals Hayek though disregards the supra-personal nature that Schmitt ascribed to his notion of order and by means of which he intended to modify the one-sidedness of his earlier position This interpretation allows Hayek to defend adiametrically opposed conception of order He describes this as a system of abstract relations and interactions where abstract reason and not will becomes the dominant factor Reason simply contemplates the unfolding of a spontaneous natural order which is the result of an evolutionary process the spontaneous outcome ofcustoms and established practices not of human design I submit that Hayek misrepresents Schmitts notion of order as containing purely decisionist elements3R This misrepresentation is functional to his system of thought for it allows him to believe that a great distance separates him from Schmitt In like manner his own self-understanding tends to overlook the decisionist potential that lies dormant in his own conception of order In what follows I will make some general observations that should shorten the distance that Hayek intends to maintain between his own conception of order and that of Schmitt
In the first place I think that Schmitts expressed intention to move away from an exclusively decisionist phase in his thought should be taken seriously His earlier one-sided posture can be attributed to what he saw as an extraordinary weakening of the role of authority during the Weimar period and to h ~ s desire to enhance the role of the Rriclisprarsitlent This is why he came out so strongly against any attempt to water down and enervate the decisionist nature of art 48 After 1933 though when a decisionist course of action had finally prevailed and it appeared as if all crucial decisions had been taken by the Frrehrer Schmitt saw the need to consolidate the regime giving it a measure of stability A superior supra-personal standpoint transcending both decisionism and normativism appeared to him as the indispensable condition to help configure an objective framework that could mediate between state and civil society An important indicator of this attitude is Schmitts effort to move closer to Hegel In Hegels political philosophy he was able to see a form of decisionism that could
38 Schrnitts notion of concrete order surely contains decisionist elements (compare with the requirement of a in his Lthcr ciic D r r iF i i c l r r e x r i ~ r ~ t i ( ~ t i l r r c ~ r ~ tic Rltci i t ~ ~ ~ i ~ ~ c ~ ~ ~ c ~ l ~ t r i i l i c ~ I ~ ( ~ r ~ cannotDc11Xct7t63) Still this principle of leadership operate in a void It is in this latter sense that Schmitts notion of concrete order formation is supraper~onal
532 F R CRISTI
fit within a wider structure that could be contained organically side by side a normative order This explains why Hegels monarch does not strike us immediately as a decisionist figure He may appear to be dormant emptily adding his signature to decisions made by others But in times of emergency he will awake and the gates of his decisionist power will be flung open Hegels conservative monarch as the beginning and apex ofthe whole is his formula to arrest market societys self-destructive competitive race The State presided over by the monarch will not result from contractual arrangements but appears as already constituted as a substantive order predating the individual existence of its membersThis stands well with Schmitts conservative Catholicism That it does not contradict Hayeks contractarianism will be considered shortly
Second there are some decisionist elements visible in Hayeks apparently pure normativist approach He accepts without reservation a principle postulated by Schmitt in his writings namely that democracy and liberalism are logically unrelated answers to logically unrelated questions Hayek writes
Liberalism and democracy although compatible are not the same The difference is best seen if we consider theiropposites the opposite of liberalism is totalitarianism while the opposite of democracy is authoritarianism In conseqilence it is at least possible in principle that a democratic government may be totalitarian and that an authoritarian government may act on liberal principles That a liberal polity may be open to authoritarian rule does not appear contradictory to Hayek In agreement with Schmitt he too distinguishes sharply between civil society and the state The autonomy and independence reserved to the state is what grounds its authoritarian potential Hayek though appears to be explicitly opposed to what he sees as the growing predominance of central planning and proposes a merely negative role for the state The state should abstain from intervening in the affairs proper to civil society Correspondingly his notion of an abstract order presupposes civil societys capacity for self-regulation and confirms the dethronement of politics within that ~ p h e r e ~ Still the negative tasks ascribed to the state are determined and sustained by the action of the state itself It is thus positively and actively that the state restricts and limits its action to a mere1 y negative one so that the depoliticization of civil society turns dialectically into the states active preservation of its monopoly over the political as such
39 Compare with my article The Mitt( and Hegels Monarch f fcgc~lsc~rc folitictr1 TIr(~oi l l (1983) 601-22
30 Hayek Stitdic in Pliilosoplr Politic~c cltid Ecotlotric s 161 41 Hayek Lci~t L~~ ~ i t c t t i o t r trtrd Lil~crty vol 2 Tlrc Zlirtrqe cSocici Jiiticc (Chicago
The University o fch icago Press 197h) 102-03 Tlrc Politic (lIOrdcr(t o Pi(c Socicty 130 139-50
Hrryrk and Schmitt on rllr Rlrle c t f Lau 531
Whenever the normal working of civil society becomes in any iJagt imperilled so that its spontaneous order must be converted into an organization the knowledge of such a situation and the decision to alter the spontaneous order of civil society lie beyond its powers in so far as they are recognized as being of a political nature Hayek admits that the power to declare a state of emergency belongs to the state And it does not escape his attention that there is some plausibility in Schmitts contention that whoever has the power to proclaim an emergency and on this ground suspend any part of the constitution is the true ~overeign~ It appears as if Hayek has not been able to exorcise this ugly notion of sovereignty and that Bolingbrokes dictum-there must be an absolute unlimited and uncontroulable [sic] power lodged somewhere in every government43-would still be true Hayek offers a series of precautionary measures aimed at avoiding a relapse into an unbalanced decisionist posture I will not discuss at this point whether these measures are effective or not I will only say that decisionist elements are potentially incorporated into his system in so far as essential to it is the separation between state and civil society
Finally I think it is possible to show that this potential decisionism built into Hayeks system does not remain as a purely potential moment Behind the rule of law which abstractly rationally and objectively configures the institutions of government one should be able to see the actual decision to abide by such a rule And this decision finds its motivation and force not in the realm of pure rational law but in the obscure recesses of material civil society The rule of law is expressed by abstract general rules which regard all individuals as equal however unequal they may in fact be Its rationality can thus be taken as purely formal compatible with democratic methods4 but not with a Rousseauan democracy as the identity between rulers and ruled In fact as Hayek himself admits the order that sustains the rule of law is the product not of any rational design but of a process of evolution and natural selection an unintended product whose function we can learn to understand but whose present significance may be wholly different from
42 Hayek The Political Order qf a Free People 125 43 Bolingbroke The Idea qf a P(lrrior King S W Jackman (ed) (Indianapolis
Bobbs-Merrill 1965) 18 44 Joseph Raz has perceived the compatibility of the rule of law as Hayek understands
it with nondemocratic systems (The Rule of Law and its Virtue The L U M Qrarterly Re~ iet t 93 [1977] 196) A non-democratic legal system based on the denial of human rights on extensive poverty on racial segregation sexual inequalities and religious persecution may in principle conform to the requirements of the rule of law better than any of the legal systems of the more enlightened western democracies This does not mean that it will be better than those western democracies It will be an immeasurably worse legal system but it will excel in one respect in its conformity to the rule of law Compare with John Gray Hayek on Liberty Rights and Justice Ethics 92 (19811 77-78
534 F R CRISTI
the intention of its creator^ldquo^ This order though is not abstract and void but represents a particular class s t r ~ c t u r e ~ Some individuals will be better represented by it than others namely those individuals whom Hayek sees as belonging to groups which happen to have adopted rules conducive to a more effective order of action [and which] will tend to prevail over groups with a less effective order- This determines the constitution of natural ranks whose privileges and correlative disadvantages do not depend on the will of anybody in particular but should be seen as arising in a purely accidental fashion The rule of law that presides over this concrete and particular order of things is surely blind to its own particularity I see in this though more than just a natural blindness it is a disturbingly clear-sighted will and desire not to see
Hayeks political theory envisages an individualist view of human liberty and a contractarian view of society Yet he has appeared as a staunch defender of a social hierarchy which individuals are not free to choose How can he embrace these views without contradiction How can he be both liberal and conservative Just as Schmitt finds an answer to these queries in Hegels conservative-liberal political philosophy so Hayek traces his steps back to Hume the philosopher he admires most In Hume he is able to read the ideology of a liberal progressive aristocracy open to change innovation and industry In this respect the social hierarchy envisaged by Hume does not depend on anybodys particular merit or virtue So great is the uncertainty of merit both from its natural obscurity and from the self-conceit of each individual that no determinate rule of conduct could ever follow from it18 Individuals are allocated places in that hierarchy by chance and circumstance for instance by the accident of their natural birth The sovereignty of the people can then be replaced by the sovereignty of nature In this manner we are preserved from our selfishness and limited generosity Nature teaches us to accept the solidarity of subservience And it is this natural rank solidarity that preserves civil society from chaos and competitive anarchy A contemporary of Hume Samuel Johnson expressed the same when he told his friend Boswell Thus sir there would be a perpetual struggle for precedence were there no
45 Hayek TI( M i r t r ~ c of Socinl J~rst ice 79 36 A parallel objection is raised by Fraenkel against Schmitts notion of concrete order
(Tlic Drrtrl State 145) The problem of the concrete theory of order transcends the limits of the system of concrete communities This problem demands solution by decisionism and since there is no norm this decision-to employ Schmitts terminology-must be derived from a void In reality however this void is not advoid at all It is the value system associated with the class structure ofpresent-day society
47 Hayek Tlic Mirtrgc~ oSocitrl J~fi t iccj 16 48 Hume An Inyrri Concrrnini tiic Iirinciplrc of MorciIs in H r l r n r ~Ecctr (London
George Routledge 1894) 422
fixed invariable rules for the distinction of rank which creqes PO
jealousy as it is allowed to be a c ~ i d e n t a l ~ ~
39 Boswell in Tlir Lifc ofScinii(c Jolrnso~i A Napier (ed ) vol I (London George Routledge 1892) 356 Compare with David Miller Hume and Possessive Individualiam his to^ i loiiticcil Tlror~glit 1 (1980) 277
Abstract According to Hayek the rule of law constitutes the foundation of liberalisms political and legal theory General and abstract laws as opposed to concrete measures protect individual freedom from prerogative and arbitrariness (normativism versus decisionism) Hayek maintains that Carl Schmitts decisionism explains his attacks on liberalism and the prominent role he played in support of Hitlers regime Two general observations should shorten the distance that Hayek seeks to establish between his posture and that of Schmitt Firstly Schrnitts critique is primarily aimed against the tendency that neutralizes the state and makes it vulnerable to democratic pressures Secondly Hayeks normativism is seen to contain a decisionist potential
Resume Selon Hayek letat de droit est le fondement de la theorie politique et legale du liberalisme Des lois generales et abstraites contrairement aux mesures concretes protegent la liberte individuelle de la prerogative et de Iarbitraire (normativisme versus decisionisme s) Hayek soutient que le decisionisme de Carl Schmitt explique sa refutation au liberalisme et son adhesion au National-socialisme en 1933 Dapres moi il faut absolument raccourcir la distance que Hayek essaie detablir entre sa position et celle de Schmitt Dabord la critique de Schmitt est dirigee contre la tendance de neutraliser letat laquelle le fait vulnerable aux pressions democratiques Ensuite le normativisme de Hayek contient un decisionisme potentiel
world7 It is with some hesitation that I attempt to rescue from this oblivion an author who has deservedly been accused of being the Mephisto of the pre-Hitler era (Loe~ens t e in ) ~ It was the success of his interpretation of the Weimar constitution particularly after the breakdown of the Great Coalition and the consolidation of the presidia1 system in March 1930and then his personal friendship with prominent members of the Nazi hierarchy that allowed him access to Hitlers regime and to become in the words of Hayek its Kronj~r~ i s t ~
Hayeks legal and political theory has in large measure evolved as an attempt to defend liberalism and the rule of law from Schmitts attacks Indeed his arguments in this respect can be seen as representing the exact counterpart of the latters legal and political theory One does not supersede an adversary position though merely by erecting its counterposition in so far as every negation is at the same time determination What generally happens when one proceeds in this manner is that the position one is attacking is not transcended but tends to be preserved as an obverted mirror-image Something like this has happened to Hayek Some of Schmitts basic assumptions have penetrated his philosophy of liberty effectively determining the content of his argumentation
7 Two American historians have recently devoted attention to Schmitt George Schwab Tlrc Clrtrllenge cfErceptiot~ A n 1ntrod11ctiotl to t l ~ c Political Ideas cfCarl Schmitt hetlceen 1921 a t ~ dI936 (Berlin Duncker amp Humblot 1970) and Joseph Bendersky Carl S(rri~itt Tl7eorist ti) tile Reic11 (Princeton Princeton University Press 1983) Fordiscussions of Schmitts reception in the English-speaking world see Joseph Bendersky Carl Schmitt Confronts the English-Speaking World C~t l ( rd i (~ t l oP~litic~(~l~~t~~iS~(~i~lJ O I I I I I ( I ~ T~eor2 ( 1978) 125-35 and George Schwab Schmitt Scholarship ibid 4 (1980) 149-55
8 Compare with Wolfgang Mommsen M0u Wehr r ltnd dir D c ~ ~ t c l ~ c Politik 1890-I920 (2nd ed Tuebingen Mohr 1974) 408 11156
9 Friedrich A Hayek S r ~ t d i c ~ ~ folitic~~ (Chicago The it1 PI~iloso~~hy (1t1li Ec~otlorili(~ University of Chicago Press 1967) 169
Although Hayek has a point in stressing Schmitts contribution to Nazi ideology he is wrong in stating that his fundamental motivation was anti-liberal Schmitts main concern was the democratic component that had according to him spuriously adhered to classical liberalism during the nineteenth century What he actually objected to was liberalisms inability to preserve its main body of doctrine free from democratic contamination My aim in this article is to correct Hayeks distorted interpretation of Schmitts work As a result it should appear that in spite of Hayeks prudential commitment to democratic methods the distance he seeks to establish between his own position and that of Schmitt is reduced
Schmitts legal theory rests on the distinction between two polarly contrasted conceptions of law-normativism and decision-ism Normativism according to Schmitt represents the rule of generality and pure rationality General abstract laws take no account of particular c ircumstances and intent ions and follow a nonconsequentialist path Normativism expresses the domination of ratio over of Lex~o l rrn ta~ over Rex The indifferent legalism that ensues marches hand in hand with capitalist rationalism supporting a mechanism which according to Schmitt indifferently satisfies with equal exactitude any and every demand whether it be for silk blouse or poison gasll The rule of law finds its most articulate philosophical expression in Kants legal philosophy Kantian liberals like Kelsen were responsible for the primordially normativist interpretation of the Weimar constitution
Decisionism on the contrary is the rule of particular concrete measures It represents the domination of lol~rntasover ratio and is best defined by the Hobbesian formula Auctoritas non teritasfacit legem12 Law is in essence command the deliberate issuing of orders Behind the abstract generality of norms one always finds the concrete interests of a willWoreover norms can only be defined against the background
10 Carl Schmitt Politische Theologie Vier Kupi te l ~ r r Lehre von der Soroeroenitaet (2nd ed Muenchen amp Leipzig Duncker amp Humblot 1934) 25-46 Verfass~rngslekre (Berlin Duncker amp Humblot 1928) 139-42 Ueber die Dre i Arten des Rec~ l l t s~ l~ i s s ensc~ i l i c l i e t~Denkens (Hamburg Hanseatische 1934) 11-29
11 Quoted in Emst Fraenkel The Drrol Stcrte (New York Octagon Books 1969) 207 I Carl S c h m i t t D i e D i k t u t r r r Votl d e n Anfaetzgetz des 1nodert1et1
Sor(~eruenitcretsgedcinkens bis rim prolettrriscl~eti K lassenka tn~ f (2nd ed Muenchen and Leipzig Duncker amp Humblot 1928) 22
13 According to Schmitt it is the existential quality of a will its power and authority that determines the validity of norms Thus the Weimar constitution should not be interpreted as a self-validating functional legal system Its validity is objectively determined by the political will of the nation It rests on the existential totalitarian will of the German people (Verf i~ssltngslehre24)
of the exceptional It is ultimately the explanatory and existential force of the exceptional and extraordinary which sustain what is to be considered normal and ordinary Schmitt quotes from Kierkegaard The exception explains the universal so that when one wishes to study the universal all one needs to do is to consider a warranted exception The exceptional will place everything in a much clearer light than the universal itself- For Schmitt then the legally normal is defined and explained by an extraordinary will the will of the sovereign As an abstract concept a sovereign is simply he who decides on the state of exception In principle there can be no definition of the exceptional At best one can approach this question in terms of a political theology and operate on the analogy afforded by the supreme command of God over creation Political theology then explains the unlimited powerlf secular sovereigns by their participation in Gods omnipotence The decision that suspends the rule of law can in similar fashion be explained as a miracle According to Schmitt nineteenth-century liberalism effectively suppressed awareness of the voluntarist foundations that ground the rule of law But one had simply to look behind its euphoric faqade to perceive the prose of Roman sovereignty
Armed with this simple distinction Schmitt set out to uncover and free the decisionist elements he saw repressed by the overtly normativist nature of the Weimar constitution Instead of the Reicl~rtrgwhich he perceived as lacking in vigour and resolution he pointed his finger in the direction of the Riclzsprr~csidrnras the constitutional figure containing the most decisionist potential The Rrichsprt~esid~ntwas an anomaly in the Weimar constitutional design Owing much to Webers idea of a charismatic leader he provided a substitute for the role previously held by the throne But beyond the intentions of the jurists that devised his role the course of events was partly responsible for his elevation from what could have been a purely decorative function to supreme arbitrator to protector of the constitution to sovereign ruler of the state Schmitt followed that ascending career step by step and was perhaps solely responsible for helping to chart that course clearing from it ideological obstacles and reservation^^^
Among these were a number of assumptions made by Weimar liberalism which were the result of accretions to the classical core of
14 Sbren Kierkegaard Dicj Wic~cierliol~ctig Gr5 Wcrkc~(Duesseldorf Eugen Diederichs 1967) 93 Quoted by Schmitt in his Politiclrr Tlrc~ologic 11
15 Schmitt Polit icc~c~Tlieologic~11-12 16 It is a different story when Schmitt descends from this abstract plane to the concrete
applications of s o ~ e r e i g n t y In the Appendix to his Dicj D i k t c i t ~ ~ t he denies that the Rc~icl i sl~tcic~sicletlt embody the p lc t l i t~ ido potectat~i which thecan was accorded monarch in the Prussian constitution for instance (Schmitt Dlc DiXtert~cr dcr Rc~it~Iispt~ctc~sielrtitc~t1t ~ ( t ( i111t48 elcit Writtcitor lc~tfi~cotry appendix to Die DiXtcittrt 36-37)
17 Heinrich Muth Carl Schmitt in der Deutschen lnnepolitik des Sommers 1932 Nicto~icclicLci tsc~ri f t Beiheft (1971) 75-147
526 F R CRISTI
liberalism in its secular efforts to accommodate rising democratic pressures It was against these democratically determined assumptions that Schmitt concentrated his fire The first was the democratic erosion of the liberal distinction between the state and civil society 18 Liberalism conceived civil society as the protected domain of individual rights The function of the rule of law was to eliminate any unwanted interference in this sphere At the same time-and this is often overlooked-the separation from civil society secured a protected domain for the state as well thus granting it the monopoly of the political as such Confronting the pluralism of civil society the state embodied its political unity In this manner the classical liberal state was assured of autonomy and independence For classical liberalism then the states most important function was to prevent the politicization of civil society restraining all democratic efforts aimed specifically at abolishing the separation of labour and capital Liberal governments present a duality which perhaps nobody has expressed with greater clarity than Constant le gouvernement en dehors de sa sphere ne doit avoir aucun pouvoir dans sa sphere il ne saurait en avoir troplg Now as Schmitt saw it the advance of democracy within the Weimar republic fatally compromised the authority of this liberal state and eroded the distinction between spheres and competences Democracy demands an identity between civil society and the state and its pressures from below have the effect of weakening the state as an autonomous political entity The nineteenth-century liberal state in response to these same pressures had become progressively neutralized losing its monopoly over politics20 Politics had thus transferred its locus from the state to civil society This is what properly characterized the historic compromise between liberalism and democracy But according to Schmitt this could only be a very unstable compromise for the diffusion of politics to the extent that it could become the property of society signified not only the end of the authoritarian state of classical liberalism but also the end of the liberal democratic state itself Total politicization of civil society signals the emergence of a new state Inspired by Juengers notion of totale Mobilmachrrng Schmitt calls this new state total state21 later
18 Schmitt Drr Hurter drr Verfcrss~tng (2nd ed Berlin Duncker amp Humblot 1969) 73 The first edition of this work was published in March 1931
19 Quoted in Wilhelm Roepke Ci~iras H~rmunu (London W Hodge 1948) 28 20 Schmitt Tllr Concrpt cftl7e Politicul trans by George Schwab (New Brunswick
Rutgers University Press) 22 Compare with Max Weber T17r Tl7ror ofSociu1 clnd Econornic 0rgrini-ution (New York Free Press 1968) 156 Hayek TI[( Cotlstir~rfion r f L i h c r t ~ 21 Robert Nozick in his Antrrcliy Srcrrc clrld Cropicl (New York Basic Books 1974) 23 explicitly refers to Weber in this respect
21 Schmitt uses this notion forthe first time in D r ~ F l ~ ~ c ~ r r r d c rILtf(rss107g(79) It is used again in October of the same year (1931) in his Conceprcfrlle Politiccr1 23-24 and then in November 1932 in a conference given to the Langman association of German businessmen later published in VolX find Rricll (February 1913) with the
Htrypk and Schmi f t on flle R l ~ l e cfLrr~t 527
rendered in English as totalitarian state This totalitarian state has more affinities with democracy than with liberalism It is not the result of the strengthened authority and autonomy of the classical liberal state but of its democratic weakening It is against this totalitarian state and against the neutralized liberal democratic state that precedes it that Schmitt advocates the total depoliticization of civil society and the total concentration of political power in an authoritarian state According to Schmitt this new state would survive only if it abandoned popular sovereignty as an assumption This was precisely the mission placed in the hands of the Reichsprctesid~nrHe should cease to be seen as a mere extension of civil society and should rise above it in dictatorial independence and autonomy His authoritarian rule would then signal the advent of a post-democratic state
A second assumption made by nineteenth-century liberalism was the acceptance of the pre-eminence of democratic legitimation over the monarchical principle-l Classical liberalism cannot be said to have been incompatible with the latter On the contrary the monarchical principle represented a viable institutional arrangement to preserve the separation between civil society and the state in so far as the monarch centralized and monopolized political matters Schmitt cleverly perceived that it would be impossible to assail this second assumption of nineteenth-century liberalism and to revive the monarchical principle Still he conceived of a way to dilute and adulterate popular sovereignty so as to render it ineffective Again he focussed his attention on the figure of the Reicl~sprarsidentIt is true that the Weimar constitution established that the R e i c ~ h s p r ~ e s i d e r ~ fwas to be elected popularly But such an election could be interpreted as something different from a democratic election It could be seen as a plebiscitarian acclamation in which certain external formalities of the democratic process were respected but its participatory content denied
[The Reic~lrspvricsidc~17tJis ideally thought of as the man who unifies in himself the trust of the people as a whole beyond the limits of party organization and
programmatic title Starker Staat und gesunde Wirtschaft Heinz 0 Ziegler in a work that owes much to Schmitt draws the distinction between totalitarianism and authoritarianism (Allroritrrerrr odrr fi~ttrlc~r Stnrlt [Tuebingen Mohr 19321) This distinction c o n s t i t ~ ~ t e s the basis for later discussions of this subject Ultimately what Marcuse Fraenkel Neumann Talmon Hayek Popper Friedrich Brzezinski Arendt Barber and Kirkpatrick have to say on this matter is tributary to Schmitt s pioneer work It is interesting to note that Schmitt s distinction between qualitative and q~~ant i t a t ive totalitarianism turns authoritarianism into a variant of the totalitarian state (Starker Staat und gesunde Wirtschaft 84) Compare with Lc~cllitcict trrrcl Lcgitimitrrcr (Muenchen and Leipzig Duncker amp Humblot 1932) 93 and with Schwab Tire Clrtrllcngr c x f E~cepriot~14-46
22 Schmitt Lcgcllirclcr trtrcl Le~irinlircrer 96 Compare with Hayek Tlrr Poliricii1 01clcr ottr Fwe People 195
23 Ibid 93 24 Schmitt 1 2 r ~ c ~ s s ~ ~ t ~ y s l ~ ~ l ~ r c ~ 90-91
528 F R CRISTI
party bureaucracies He is able to do this as the man in whom the whole of the people have placed their trust and not as the member of a political party The election of the Rcichsprclcsident is more than any ordinary democratic election It is the grandiose acclamation of the German people j
The people acclaiming the Rrichsprcie~idrntact as an unorganized mass of electors incapable of deciding on the substantive issues concerning them The people select their leaders in order that they may govern They do not themselves continuously decide on the leaders difficulties and their differences of pinion^ A strong independent leadership is implied strong enough to impose the necessary depoliticization of civil society and prevent its total democratic politicization Still one i 4 bound to ask why a total depoliticization of civil society would be less totalitarian than its total politicization Is it a coincidence that of all the institutions contained in the Weimar constitution only that of the Rricl~~prarsicirrl tsurvived without alterations during the Nazi regime17
A further assumption of nineteenth-century liberalism which Schmitt sought to enervate was the institution of modern parliaments Ideally parliaments embody two principles vital for the government of civil society-discussion and publicity x These constitute the necessary preconditions of rational exchange of ideas and rational decision-making However the full expansion of market relationships during the nineteenth century affected parliamentary functions Disinterested rational debate was no longer possible and the clash of opinions gave way to a clash of irreconcilable interest^^ According to Schmitt it was at that point that parliaments became the instruments by which civil society attempted to control the state depriving it of its autonomy At the same time the democratic component of liberal democracy was meant to produce the politicization of civil society blurring the separation between civil society and the state and depriving parliaments of their monopoly over politics Deputies were bound to lose their traditional representative roles and to become more and more dependent on their electoral basis and on the parties to which they belonged Schmitt concluded that parliamentary governments such as the one defined by the Weimar constitution were doomed to fail The pluralistic tendencies proper to civil society robbed them of their capacity to decide and condemned them to endless discussion and indecision irrevocably torn by party positions and recalcitrant interest groups
25 Ibid 350 26 Ibid 351 27 Compare with Ernst Rudolf Huber Das Staatsoberhaupt des Deutschen Keiches
Z e i t s c ~ l ~ r ~ f i f i i e r 95 (1935) 203 die gesanlre Stacitsreclzt~c~issenscllqfi
28 Schmitt Die geist~sgesclziclztlic~eLuge des I7e11tigerz Purlnmet7tarismm (3rd ed Berlin Duncker amp Humblot 1961) and following pages
29 Ibid 9-10
Hayrk orld Schmirr o n tllc Riilr of Lnis 529
For these maladies Schmitt again advocated the role of a decisionist Rrichsprcrrsicicnt Only he could escape civil societys centrifugal pluralism and standing beyond partisan positions only he could unify the nation by holding the trust of the people as a whole The crucial ingredients in the script Schmitt was preparing for the Rcicllsprorsitlent were contained in art 48 of the Weimar constitution This article invested the Reic~llsprarsitlcntwith extraordinary dictatorial powers to face emergencies including the ability to decree measures that contravened the legally established order It was in this exceptional power that Schmitt saw the constitutive factor of what is defined as the normal situation Norms can only exist because the exceptional and abnormal have been taken care of
Most of those acquainted with Schmitts work have seen in liberalism his principal ideological adversary xO This indeed represents Schmitts own self-understanding I maintain though that this is not the case and that his attacks were directed against the democratic component in nineteenth-century liberalism particularly against the principle of popular sovereignty This comes to light with great clarity after 1933 when he was beginning to be proved right by historical events It is at this point that he began to expand on the limitations of dec i~ ionism~ Decisionism now appeared to him as one-sided as normativism in that it lacked the objectivity needed to legitimate a stable framework for continuous political action There was the danger he recognized in November 1933X2 that the urgencies of the present could obscure the tranquil being (das ruhende Sein) underlying a great political movement That tranquil being should be seen as preceding any movement It constitutes the ground on which stand both a normative state and a decisionist party Schmitts early Fichtean critique of the Kantian rule of law has receded leaving a space for a more moderate Hegelian compromise Hegel is definitely in Schmitts mind when he introduces the notion of concrete order This corresponds to the transcendentally tranquil being embracing both decisionism and normativism as their condition of possibility Immediately modelled on Harious theory of the institution this transcendental order I-emirids us
30 Georg Dahm review of Schmitts Lebtgtrdie Drei Arrcn des Rcc~lrt~tissrnsc~I~t~~ilicI~c~n Dc~trhorsin the citsc~irrififr~rr 95 (1935) 181 die grsrrmte Srtrtrrsrec~l~rsu~issrr~sc~lrqfi [Schmitts works] are from the start determinately aimed at weakening and abolishing the liberal Recirrs~rautand at superseding the legislative state Compare with Hayek Lan Legisluriorl trtrtl Libc~rty vol 1 Rrllrs trnd Order (Chicago University of Chicago Press 1971) 161 note 19 Leo Strauss Comments on Carl Schmitts L ) o Bcgr(fPdrs Pol i t isc~lr~~~i ( f r l l c Poirictrl 82in Tire Co~ri(gt[)r Mathias Schmitz Dic Frt~rrr~ci-F(~it~tl-TI~corit~Crrrl S(rtritt (Koeln amp Opladen Westdeutscher 1965) 127
31 Compare with Schwab T11c~ Clrrrllrr~gc~ o f E-ceptior 87 32 Schmitt Poirische Ti~eologie Preface 33 Schmitt Leher clic Drci Artrrl t l r ~ R c c ~ l r t ~ ~ t ~ i s s c ~ r ~ s c ~ I ~ t ~ f i I i ( ~ I ~ ~ ~ i ~DrtlXc~rs40-44
530 F R CRISTI
of Hegels ethical State According to Schmitt Hegels State is not merely the embodiment of sovereign decision nor the empty position of a norm of norms nor even the fluctuating scenario for alternating situations of emergency and stability Rather one should see in it the concrete order of orders the institution of institutions Neither the impc3rsonal rule of law nor the prrsor1~1measures of a sovereign can monopolize the political sphere Both have their transcendental condition of possibility in an already given sr(prapersona1 ~ r d e r ~
Hayek follows the views of those who think that Schmitts main adversary is liberalism in all its manifestations and that it is precisely this anti-liberal posture that accounts for his smooth conversion to National Socialism in 1933 This particular understanding of Schmitts legal and political theory determines for instance the brief but comprehensive critical account Hayek gives of it in his La Legisllrtion lint1 Liberty
[Schmitts] central belief as he finally formulated it is that from the normative thinking of the liberal tradition law has gradually advanced through a decisionist phase in which the will of the legislative authorities decided on particular matters to the conception of concrete order formation In other words law is not to consist of abstract rules which make possible the formation of a spontaneous order by the free action of individuals through limiting the range of their actions but is to be the instrument of arrangement o r organization by which the individual is made to serve concrete purposes This is the inevitable outcome of an intellectual development in which the self-ordering forces of society and the role of law in an ordering mechanism are no longer understood
34 Ibid 45-57 There is a certain ambiguity in Schmitts relation to Hegel apparently a product of a reference to the latter in his book Srcitrr Reuegetng ltnd LolX (Hamburg Hanseatische 1933) In it he states in connection with Hitlers being designated chancellor on January 30 1933 Accordingly one can say that on this day Hegel died Marcuse for instance stops here and does not read any further (Marcuse Ncgtr t iot i~[Boston Beacon 19671 275 note 79) Compare with Henning Ottmann I t~t l i~~i t l icc~m bc~i f fc qr l vol 1 (Berlin de Gruyter 1977) 222 n451)tintlGc~rrrc~insc~lrrfi The cont in~~at ion of the text though speaks for itself This does not mean that the great work of this German political philosopher has lost its significance and that the idea of a political leadership that transcends the egoism of social interests sho~lld be abandoned What is truly German and perennial of the powerful spiritual construction erected by Hegel c o n t i n ~ ~ e s (32) Again in to be valuable for the new formation 1935 Schmitt identifies his opposition to the rule of law or Rrc~ht~srtrtrras Hegelian The true antithesis to the Rrclrrsstrrrrr is not a Niclrr-Rrci~rtsrarrr but Hegels StttIiclrXritttrtrt (ethlcal state) See Schmitt Was bedeutet der Streit um den Rechtsstaat rircrr~fi f i ~ c ~ r 95 (1935) clic gcJscrmrr Sttrnr rc~c l~t t~t i cnt t~~t~f i
189-91 35 Schm~t t LPhrr die Drci Artc11 dc Rcc~lrt~~t~irorc~iri~filic~ire~~eDcnXc~l47 36 Ibid 13 37 Hayek Rolc5 titrtl O r t l o 71
Nrryek and Scllrnitt on the Rtlle q f L a u ) 531
Schmitts notion of concrete order formation is interpreted here as an arrangement resulting from the deliberations and conscious decisions of particular individuals In Hayeks own system this corresponds to what he describes as organizations and his conception of law as tllrsis as opposed to nornoc In this respect Schmitts notion of concrete order becomes the ideal vehicle for decisionism in so far as organizations and law as thesis presuppose the agency of personally active individuals Hayek though disregards the supra-personal nature that Schmitt ascribed to his notion of order and by means of which he intended to modify the one-sidedness of his earlier position This interpretation allows Hayek to defend adiametrically opposed conception of order He describes this as a system of abstract relations and interactions where abstract reason and not will becomes the dominant factor Reason simply contemplates the unfolding of a spontaneous natural order which is the result of an evolutionary process the spontaneous outcome ofcustoms and established practices not of human design I submit that Hayek misrepresents Schmitts notion of order as containing purely decisionist elements3R This misrepresentation is functional to his system of thought for it allows him to believe that a great distance separates him from Schmitt In like manner his own self-understanding tends to overlook the decisionist potential that lies dormant in his own conception of order In what follows I will make some general observations that should shorten the distance that Hayek intends to maintain between his own conception of order and that of Schmitt
In the first place I think that Schmitts expressed intention to move away from an exclusively decisionist phase in his thought should be taken seriously His earlier one-sided posture can be attributed to what he saw as an extraordinary weakening of the role of authority during the Weimar period and to h ~ s desire to enhance the role of the Rriclisprarsitlent This is why he came out so strongly against any attempt to water down and enervate the decisionist nature of art 48 After 1933 though when a decisionist course of action had finally prevailed and it appeared as if all crucial decisions had been taken by the Frrehrer Schmitt saw the need to consolidate the regime giving it a measure of stability A superior supra-personal standpoint transcending both decisionism and normativism appeared to him as the indispensable condition to help configure an objective framework that could mediate between state and civil society An important indicator of this attitude is Schmitts effort to move closer to Hegel In Hegels political philosophy he was able to see a form of decisionism that could
38 Schrnitts notion of concrete order surely contains decisionist elements (compare with the requirement of a in his Lthcr ciic D r r iF i i c l r r e x r i ~ r ~ t i ( ~ t i l r r c ~ r ~ tic Rltci i t ~ ~ ~ i ~ ~ c ~ ~ ~ c ~ l ~ t r i i l i c ~ I ~ ( ~ r ~ cannotDc11Xct7t63) Still this principle of leadership operate in a void It is in this latter sense that Schmitts notion of concrete order formation is supraper~onal
532 F R CRISTI
fit within a wider structure that could be contained organically side by side a normative order This explains why Hegels monarch does not strike us immediately as a decisionist figure He may appear to be dormant emptily adding his signature to decisions made by others But in times of emergency he will awake and the gates of his decisionist power will be flung open Hegels conservative monarch as the beginning and apex ofthe whole is his formula to arrest market societys self-destructive competitive race The State presided over by the monarch will not result from contractual arrangements but appears as already constituted as a substantive order predating the individual existence of its membersThis stands well with Schmitts conservative Catholicism That it does not contradict Hayeks contractarianism will be considered shortly
Second there are some decisionist elements visible in Hayeks apparently pure normativist approach He accepts without reservation a principle postulated by Schmitt in his writings namely that democracy and liberalism are logically unrelated answers to logically unrelated questions Hayek writes
Liberalism and democracy although compatible are not the same The difference is best seen if we consider theiropposites the opposite of liberalism is totalitarianism while the opposite of democracy is authoritarianism In conseqilence it is at least possible in principle that a democratic government may be totalitarian and that an authoritarian government may act on liberal principles That a liberal polity may be open to authoritarian rule does not appear contradictory to Hayek In agreement with Schmitt he too distinguishes sharply between civil society and the state The autonomy and independence reserved to the state is what grounds its authoritarian potential Hayek though appears to be explicitly opposed to what he sees as the growing predominance of central planning and proposes a merely negative role for the state The state should abstain from intervening in the affairs proper to civil society Correspondingly his notion of an abstract order presupposes civil societys capacity for self-regulation and confirms the dethronement of politics within that ~ p h e r e ~ Still the negative tasks ascribed to the state are determined and sustained by the action of the state itself It is thus positively and actively that the state restricts and limits its action to a mere1 y negative one so that the depoliticization of civil society turns dialectically into the states active preservation of its monopoly over the political as such
39 Compare with my article The Mitt( and Hegels Monarch f fcgc~lsc~rc folitictr1 TIr(~oi l l (1983) 601-22
30 Hayek Stitdic in Pliilosoplr Politic~c cltid Ecotlotric s 161 41 Hayek Lci~t L~~ ~ i t c t t i o t r trtrd Lil~crty vol 2 Tlrc Zlirtrqe cSocici Jiiticc (Chicago
The University o fch icago Press 197h) 102-03 Tlrc Politic (lIOrdcr(t o Pi(c Socicty 130 139-50
Hrryrk and Schmitt on rllr Rlrle c t f Lau 531
Whenever the normal working of civil society becomes in any iJagt imperilled so that its spontaneous order must be converted into an organization the knowledge of such a situation and the decision to alter the spontaneous order of civil society lie beyond its powers in so far as they are recognized as being of a political nature Hayek admits that the power to declare a state of emergency belongs to the state And it does not escape his attention that there is some plausibility in Schmitts contention that whoever has the power to proclaim an emergency and on this ground suspend any part of the constitution is the true ~overeign~ It appears as if Hayek has not been able to exorcise this ugly notion of sovereignty and that Bolingbrokes dictum-there must be an absolute unlimited and uncontroulable [sic] power lodged somewhere in every government43-would still be true Hayek offers a series of precautionary measures aimed at avoiding a relapse into an unbalanced decisionist posture I will not discuss at this point whether these measures are effective or not I will only say that decisionist elements are potentially incorporated into his system in so far as essential to it is the separation between state and civil society
Finally I think it is possible to show that this potential decisionism built into Hayeks system does not remain as a purely potential moment Behind the rule of law which abstractly rationally and objectively configures the institutions of government one should be able to see the actual decision to abide by such a rule And this decision finds its motivation and force not in the realm of pure rational law but in the obscure recesses of material civil society The rule of law is expressed by abstract general rules which regard all individuals as equal however unequal they may in fact be Its rationality can thus be taken as purely formal compatible with democratic methods4 but not with a Rousseauan democracy as the identity between rulers and ruled In fact as Hayek himself admits the order that sustains the rule of law is the product not of any rational design but of a process of evolution and natural selection an unintended product whose function we can learn to understand but whose present significance may be wholly different from
42 Hayek The Political Order qf a Free People 125 43 Bolingbroke The Idea qf a P(lrrior King S W Jackman (ed) (Indianapolis
Bobbs-Merrill 1965) 18 44 Joseph Raz has perceived the compatibility of the rule of law as Hayek understands
it with nondemocratic systems (The Rule of Law and its Virtue The L U M Qrarterly Re~ iet t 93 [1977] 196) A non-democratic legal system based on the denial of human rights on extensive poverty on racial segregation sexual inequalities and religious persecution may in principle conform to the requirements of the rule of law better than any of the legal systems of the more enlightened western democracies This does not mean that it will be better than those western democracies It will be an immeasurably worse legal system but it will excel in one respect in its conformity to the rule of law Compare with John Gray Hayek on Liberty Rights and Justice Ethics 92 (19811 77-78
534 F R CRISTI
the intention of its creator^ldquo^ This order though is not abstract and void but represents a particular class s t r ~ c t u r e ~ Some individuals will be better represented by it than others namely those individuals whom Hayek sees as belonging to groups which happen to have adopted rules conducive to a more effective order of action [and which] will tend to prevail over groups with a less effective order- This determines the constitution of natural ranks whose privileges and correlative disadvantages do not depend on the will of anybody in particular but should be seen as arising in a purely accidental fashion The rule of law that presides over this concrete and particular order of things is surely blind to its own particularity I see in this though more than just a natural blindness it is a disturbingly clear-sighted will and desire not to see
Hayeks political theory envisages an individualist view of human liberty and a contractarian view of society Yet he has appeared as a staunch defender of a social hierarchy which individuals are not free to choose How can he embrace these views without contradiction How can he be both liberal and conservative Just as Schmitt finds an answer to these queries in Hegels conservative-liberal political philosophy so Hayek traces his steps back to Hume the philosopher he admires most In Hume he is able to read the ideology of a liberal progressive aristocracy open to change innovation and industry In this respect the social hierarchy envisaged by Hume does not depend on anybodys particular merit or virtue So great is the uncertainty of merit both from its natural obscurity and from the self-conceit of each individual that no determinate rule of conduct could ever follow from it18 Individuals are allocated places in that hierarchy by chance and circumstance for instance by the accident of their natural birth The sovereignty of the people can then be replaced by the sovereignty of nature In this manner we are preserved from our selfishness and limited generosity Nature teaches us to accept the solidarity of subservience And it is this natural rank solidarity that preserves civil society from chaos and competitive anarchy A contemporary of Hume Samuel Johnson expressed the same when he told his friend Boswell Thus sir there would be a perpetual struggle for precedence were there no
45 Hayek TI( M i r t r ~ c of Socinl J~rst ice 79 36 A parallel objection is raised by Fraenkel against Schmitts notion of concrete order
(Tlic Drrtrl State 145) The problem of the concrete theory of order transcends the limits of the system of concrete communities This problem demands solution by decisionism and since there is no norm this decision-to employ Schmitts terminology-must be derived from a void In reality however this void is not advoid at all It is the value system associated with the class structure ofpresent-day society
47 Hayek Tlic Mirtrgc~ oSocitrl J~fi t iccj 16 48 Hume An Inyrri Concrrnini tiic Iirinciplrc of MorciIs in H r l r n r ~Ecctr (London
George Routledge 1894) 422
fixed invariable rules for the distinction of rank which creqes PO
jealousy as it is allowed to be a c ~ i d e n t a l ~ ~
39 Boswell in Tlir Lifc ofScinii(c Jolrnso~i A Napier (ed ) vol I (London George Routledge 1892) 356 Compare with David Miller Hume and Possessive Individualiam his to^ i loiiticcil Tlror~glit 1 (1980) 277
Although Hayek has a point in stressing Schmitts contribution to Nazi ideology he is wrong in stating that his fundamental motivation was anti-liberal Schmitts main concern was the democratic component that had according to him spuriously adhered to classical liberalism during the nineteenth century What he actually objected to was liberalisms inability to preserve its main body of doctrine free from democratic contamination My aim in this article is to correct Hayeks distorted interpretation of Schmitts work As a result it should appear that in spite of Hayeks prudential commitment to democratic methods the distance he seeks to establish between his own position and that of Schmitt is reduced
Schmitts legal theory rests on the distinction between two polarly contrasted conceptions of law-normativism and decision-ism Normativism according to Schmitt represents the rule of generality and pure rationality General abstract laws take no account of particular c ircumstances and intent ions and follow a nonconsequentialist path Normativism expresses the domination of ratio over of Lex~o l rrn ta~ over Rex The indifferent legalism that ensues marches hand in hand with capitalist rationalism supporting a mechanism which according to Schmitt indifferently satisfies with equal exactitude any and every demand whether it be for silk blouse or poison gasll The rule of law finds its most articulate philosophical expression in Kants legal philosophy Kantian liberals like Kelsen were responsible for the primordially normativist interpretation of the Weimar constitution
Decisionism on the contrary is the rule of particular concrete measures It represents the domination of lol~rntasover ratio and is best defined by the Hobbesian formula Auctoritas non teritasfacit legem12 Law is in essence command the deliberate issuing of orders Behind the abstract generality of norms one always finds the concrete interests of a willWoreover norms can only be defined against the background
10 Carl Schmitt Politische Theologie Vier Kupi te l ~ r r Lehre von der Soroeroenitaet (2nd ed Muenchen amp Leipzig Duncker amp Humblot 1934) 25-46 Verfass~rngslekre (Berlin Duncker amp Humblot 1928) 139-42 Ueber die Dre i Arten des Rec~ l l t s~ l~ i s s ensc~ i l i c l i e t~Denkens (Hamburg Hanseatische 1934) 11-29
11 Quoted in Emst Fraenkel The Drrol Stcrte (New York Octagon Books 1969) 207 I Carl S c h m i t t D i e D i k t u t r r r Votl d e n Anfaetzgetz des 1nodert1et1
Sor(~eruenitcretsgedcinkens bis rim prolettrriscl~eti K lassenka tn~ f (2nd ed Muenchen and Leipzig Duncker amp Humblot 1928) 22
13 According to Schmitt it is the existential quality of a will its power and authority that determines the validity of norms Thus the Weimar constitution should not be interpreted as a self-validating functional legal system Its validity is objectively determined by the political will of the nation It rests on the existential totalitarian will of the German people (Verf i~ssltngslehre24)
of the exceptional It is ultimately the explanatory and existential force of the exceptional and extraordinary which sustain what is to be considered normal and ordinary Schmitt quotes from Kierkegaard The exception explains the universal so that when one wishes to study the universal all one needs to do is to consider a warranted exception The exceptional will place everything in a much clearer light than the universal itself- For Schmitt then the legally normal is defined and explained by an extraordinary will the will of the sovereign As an abstract concept a sovereign is simply he who decides on the state of exception In principle there can be no definition of the exceptional At best one can approach this question in terms of a political theology and operate on the analogy afforded by the supreme command of God over creation Political theology then explains the unlimited powerlf secular sovereigns by their participation in Gods omnipotence The decision that suspends the rule of law can in similar fashion be explained as a miracle According to Schmitt nineteenth-century liberalism effectively suppressed awareness of the voluntarist foundations that ground the rule of law But one had simply to look behind its euphoric faqade to perceive the prose of Roman sovereignty
Armed with this simple distinction Schmitt set out to uncover and free the decisionist elements he saw repressed by the overtly normativist nature of the Weimar constitution Instead of the Reicl~rtrgwhich he perceived as lacking in vigour and resolution he pointed his finger in the direction of the Riclzsprr~csidrnras the constitutional figure containing the most decisionist potential The Rrichsprt~esid~ntwas an anomaly in the Weimar constitutional design Owing much to Webers idea of a charismatic leader he provided a substitute for the role previously held by the throne But beyond the intentions of the jurists that devised his role the course of events was partly responsible for his elevation from what could have been a purely decorative function to supreme arbitrator to protector of the constitution to sovereign ruler of the state Schmitt followed that ascending career step by step and was perhaps solely responsible for helping to chart that course clearing from it ideological obstacles and reservation^^^
Among these were a number of assumptions made by Weimar liberalism which were the result of accretions to the classical core of
14 Sbren Kierkegaard Dicj Wic~cierliol~ctig Gr5 Wcrkc~(Duesseldorf Eugen Diederichs 1967) 93 Quoted by Schmitt in his Politiclrr Tlrc~ologic 11
15 Schmitt Polit icc~c~Tlieologic~11-12 16 It is a different story when Schmitt descends from this abstract plane to the concrete
applications of s o ~ e r e i g n t y In the Appendix to his Dicj D i k t c i t ~ ~ t he denies that the Rc~icl i sl~tcic~sicletlt embody the p lc t l i t~ ido potectat~i which thecan was accorded monarch in the Prussian constitution for instance (Schmitt Dlc DiXtert~cr dcr Rc~it~Iispt~ctc~sielrtitc~t1t ~ ( t ( i111t48 elcit Writtcitor lc~tfi~cotry appendix to Die DiXtcittrt 36-37)
17 Heinrich Muth Carl Schmitt in der Deutschen lnnepolitik des Sommers 1932 Nicto~icclicLci tsc~ri f t Beiheft (1971) 75-147
526 F R CRISTI
liberalism in its secular efforts to accommodate rising democratic pressures It was against these democratically determined assumptions that Schmitt concentrated his fire The first was the democratic erosion of the liberal distinction between the state and civil society 18 Liberalism conceived civil society as the protected domain of individual rights The function of the rule of law was to eliminate any unwanted interference in this sphere At the same time-and this is often overlooked-the separation from civil society secured a protected domain for the state as well thus granting it the monopoly of the political as such Confronting the pluralism of civil society the state embodied its political unity In this manner the classical liberal state was assured of autonomy and independence For classical liberalism then the states most important function was to prevent the politicization of civil society restraining all democratic efforts aimed specifically at abolishing the separation of labour and capital Liberal governments present a duality which perhaps nobody has expressed with greater clarity than Constant le gouvernement en dehors de sa sphere ne doit avoir aucun pouvoir dans sa sphere il ne saurait en avoir troplg Now as Schmitt saw it the advance of democracy within the Weimar republic fatally compromised the authority of this liberal state and eroded the distinction between spheres and competences Democracy demands an identity between civil society and the state and its pressures from below have the effect of weakening the state as an autonomous political entity The nineteenth-century liberal state in response to these same pressures had become progressively neutralized losing its monopoly over politics20 Politics had thus transferred its locus from the state to civil society This is what properly characterized the historic compromise between liberalism and democracy But according to Schmitt this could only be a very unstable compromise for the diffusion of politics to the extent that it could become the property of society signified not only the end of the authoritarian state of classical liberalism but also the end of the liberal democratic state itself Total politicization of civil society signals the emergence of a new state Inspired by Juengers notion of totale Mobilmachrrng Schmitt calls this new state total state21 later
18 Schmitt Drr Hurter drr Verfcrss~tng (2nd ed Berlin Duncker amp Humblot 1969) 73 The first edition of this work was published in March 1931
19 Quoted in Wilhelm Roepke Ci~iras H~rmunu (London W Hodge 1948) 28 20 Schmitt Tllr Concrpt cftl7e Politicul trans by George Schwab (New Brunswick
Rutgers University Press) 22 Compare with Max Weber T17r Tl7ror ofSociu1 clnd Econornic 0rgrini-ution (New York Free Press 1968) 156 Hayek TI[( Cotlstir~rfion r f L i h c r t ~ 21 Robert Nozick in his Antrrcliy Srcrrc clrld Cropicl (New York Basic Books 1974) 23 explicitly refers to Weber in this respect
21 Schmitt uses this notion forthe first time in D r ~ F l ~ ~ c ~ r r r d c rILtf(rss107g(79) It is used again in October of the same year (1931) in his Conceprcfrlle Politiccr1 23-24 and then in November 1932 in a conference given to the Langman association of German businessmen later published in VolX find Rricll (February 1913) with the
Htrypk and Schmi f t on flle R l ~ l e cfLrr~t 527
rendered in English as totalitarian state This totalitarian state has more affinities with democracy than with liberalism It is not the result of the strengthened authority and autonomy of the classical liberal state but of its democratic weakening It is against this totalitarian state and against the neutralized liberal democratic state that precedes it that Schmitt advocates the total depoliticization of civil society and the total concentration of political power in an authoritarian state According to Schmitt this new state would survive only if it abandoned popular sovereignty as an assumption This was precisely the mission placed in the hands of the Reichsprctesid~nrHe should cease to be seen as a mere extension of civil society and should rise above it in dictatorial independence and autonomy His authoritarian rule would then signal the advent of a post-democratic state
A second assumption made by nineteenth-century liberalism was the acceptance of the pre-eminence of democratic legitimation over the monarchical principle-l Classical liberalism cannot be said to have been incompatible with the latter On the contrary the monarchical principle represented a viable institutional arrangement to preserve the separation between civil society and the state in so far as the monarch centralized and monopolized political matters Schmitt cleverly perceived that it would be impossible to assail this second assumption of nineteenth-century liberalism and to revive the monarchical principle Still he conceived of a way to dilute and adulterate popular sovereignty so as to render it ineffective Again he focussed his attention on the figure of the Reicl~sprarsidentIt is true that the Weimar constitution established that the R e i c ~ h s p r ~ e s i d e r ~ fwas to be elected popularly But such an election could be interpreted as something different from a democratic election It could be seen as a plebiscitarian acclamation in which certain external formalities of the democratic process were respected but its participatory content denied
[The Reic~lrspvricsidc~17tJis ideally thought of as the man who unifies in himself the trust of the people as a whole beyond the limits of party organization and
programmatic title Starker Staat und gesunde Wirtschaft Heinz 0 Ziegler in a work that owes much to Schmitt draws the distinction between totalitarianism and authoritarianism (Allroritrrerrr odrr fi~ttrlc~r Stnrlt [Tuebingen Mohr 19321) This distinction c o n s t i t ~ ~ t e s the basis for later discussions of this subject Ultimately what Marcuse Fraenkel Neumann Talmon Hayek Popper Friedrich Brzezinski Arendt Barber and Kirkpatrick have to say on this matter is tributary to Schmitt s pioneer work It is interesting to note that Schmitt s distinction between qualitative and q~~ant i t a t ive totalitarianism turns authoritarianism into a variant of the totalitarian state (Starker Staat und gesunde Wirtschaft 84) Compare with Lc~cllitcict trrrcl Lcgitimitrrcr (Muenchen and Leipzig Duncker amp Humblot 1932) 93 and with Schwab Tire Clrtrllcngr c x f E~cepriot~14-46
22 Schmitt Lcgcllirclcr trtrcl Le~irinlircrer 96 Compare with Hayek Tlrr Poliricii1 01clcr ottr Fwe People 195
23 Ibid 93 24 Schmitt 1 2 r ~ c ~ s s ~ ~ t ~ y s l ~ ~ l ~ r c ~ 90-91
528 F R CRISTI
party bureaucracies He is able to do this as the man in whom the whole of the people have placed their trust and not as the member of a political party The election of the Rcichsprclcsident is more than any ordinary democratic election It is the grandiose acclamation of the German people j
The people acclaiming the Rrichsprcie~idrntact as an unorganized mass of electors incapable of deciding on the substantive issues concerning them The people select their leaders in order that they may govern They do not themselves continuously decide on the leaders difficulties and their differences of pinion^ A strong independent leadership is implied strong enough to impose the necessary depoliticization of civil society and prevent its total democratic politicization Still one i 4 bound to ask why a total depoliticization of civil society would be less totalitarian than its total politicization Is it a coincidence that of all the institutions contained in the Weimar constitution only that of the Rricl~~prarsicirrl tsurvived without alterations during the Nazi regime17
A further assumption of nineteenth-century liberalism which Schmitt sought to enervate was the institution of modern parliaments Ideally parliaments embody two principles vital for the government of civil society-discussion and publicity x These constitute the necessary preconditions of rational exchange of ideas and rational decision-making However the full expansion of market relationships during the nineteenth century affected parliamentary functions Disinterested rational debate was no longer possible and the clash of opinions gave way to a clash of irreconcilable interest^^ According to Schmitt it was at that point that parliaments became the instruments by which civil society attempted to control the state depriving it of its autonomy At the same time the democratic component of liberal democracy was meant to produce the politicization of civil society blurring the separation between civil society and the state and depriving parliaments of their monopoly over politics Deputies were bound to lose their traditional representative roles and to become more and more dependent on their electoral basis and on the parties to which they belonged Schmitt concluded that parliamentary governments such as the one defined by the Weimar constitution were doomed to fail The pluralistic tendencies proper to civil society robbed them of their capacity to decide and condemned them to endless discussion and indecision irrevocably torn by party positions and recalcitrant interest groups
25 Ibid 350 26 Ibid 351 27 Compare with Ernst Rudolf Huber Das Staatsoberhaupt des Deutschen Keiches
Z e i t s c ~ l ~ r ~ f i f i i e r 95 (1935) 203 die gesanlre Stacitsreclzt~c~issenscllqfi
28 Schmitt Die geist~sgesclziclztlic~eLuge des I7e11tigerz Purlnmet7tarismm (3rd ed Berlin Duncker amp Humblot 1961) and following pages
29 Ibid 9-10
Hayrk orld Schmirr o n tllc Riilr of Lnis 529
For these maladies Schmitt again advocated the role of a decisionist Rrichsprcrrsicicnt Only he could escape civil societys centrifugal pluralism and standing beyond partisan positions only he could unify the nation by holding the trust of the people as a whole The crucial ingredients in the script Schmitt was preparing for the Rcicllsprorsitlent were contained in art 48 of the Weimar constitution This article invested the Reic~llsprarsitlcntwith extraordinary dictatorial powers to face emergencies including the ability to decree measures that contravened the legally established order It was in this exceptional power that Schmitt saw the constitutive factor of what is defined as the normal situation Norms can only exist because the exceptional and abnormal have been taken care of
Most of those acquainted with Schmitts work have seen in liberalism his principal ideological adversary xO This indeed represents Schmitts own self-understanding I maintain though that this is not the case and that his attacks were directed against the democratic component in nineteenth-century liberalism particularly against the principle of popular sovereignty This comes to light with great clarity after 1933 when he was beginning to be proved right by historical events It is at this point that he began to expand on the limitations of dec i~ ionism~ Decisionism now appeared to him as one-sided as normativism in that it lacked the objectivity needed to legitimate a stable framework for continuous political action There was the danger he recognized in November 1933X2 that the urgencies of the present could obscure the tranquil being (das ruhende Sein) underlying a great political movement That tranquil being should be seen as preceding any movement It constitutes the ground on which stand both a normative state and a decisionist party Schmitts early Fichtean critique of the Kantian rule of law has receded leaving a space for a more moderate Hegelian compromise Hegel is definitely in Schmitts mind when he introduces the notion of concrete order This corresponds to the transcendentally tranquil being embracing both decisionism and normativism as their condition of possibility Immediately modelled on Harious theory of the institution this transcendental order I-emirids us
30 Georg Dahm review of Schmitts Lebtgtrdie Drei Arrcn des Rcc~lrt~tissrnsc~I~t~~ilicI~c~n Dc~trhorsin the citsc~irrififr~rr 95 (1935) 181 die grsrrmte Srtrtrrsrec~l~rsu~issrr~sc~lrqfi [Schmitts works] are from the start determinately aimed at weakening and abolishing the liberal Recirrs~rautand at superseding the legislative state Compare with Hayek Lan Legisluriorl trtrtl Libc~rty vol 1 Rrllrs trnd Order (Chicago University of Chicago Press 1971) 161 note 19 Leo Strauss Comments on Carl Schmitts L ) o Bcgr(fPdrs Pol i t isc~lr~~~i ( f r l l c Poirictrl 82in Tire Co~ri(gt[)r Mathias Schmitz Dic Frt~rrr~ci-F(~it~tl-TI~corit~Crrrl S(rtritt (Koeln amp Opladen Westdeutscher 1965) 127
31 Compare with Schwab T11c~ Clrrrllrr~gc~ o f E-ceptior 87 32 Schmitt Poirische Ti~eologie Preface 33 Schmitt Leher clic Drci Artrrl t l r ~ R c c ~ l r t ~ ~ t ~ i s s c ~ r ~ s c ~ I ~ t ~ f i I i ( ~ I ~ ~ ~ i ~DrtlXc~rs40-44
530 F R CRISTI
of Hegels ethical State According to Schmitt Hegels State is not merely the embodiment of sovereign decision nor the empty position of a norm of norms nor even the fluctuating scenario for alternating situations of emergency and stability Rather one should see in it the concrete order of orders the institution of institutions Neither the impc3rsonal rule of law nor the prrsor1~1measures of a sovereign can monopolize the political sphere Both have their transcendental condition of possibility in an already given sr(prapersona1 ~ r d e r ~
Hayek follows the views of those who think that Schmitts main adversary is liberalism in all its manifestations and that it is precisely this anti-liberal posture that accounts for his smooth conversion to National Socialism in 1933 This particular understanding of Schmitts legal and political theory determines for instance the brief but comprehensive critical account Hayek gives of it in his La Legisllrtion lint1 Liberty
[Schmitts] central belief as he finally formulated it is that from the normative thinking of the liberal tradition law has gradually advanced through a decisionist phase in which the will of the legislative authorities decided on particular matters to the conception of concrete order formation In other words law is not to consist of abstract rules which make possible the formation of a spontaneous order by the free action of individuals through limiting the range of their actions but is to be the instrument of arrangement o r organization by which the individual is made to serve concrete purposes This is the inevitable outcome of an intellectual development in which the self-ordering forces of society and the role of law in an ordering mechanism are no longer understood
34 Ibid 45-57 There is a certain ambiguity in Schmitts relation to Hegel apparently a product of a reference to the latter in his book Srcitrr Reuegetng ltnd LolX (Hamburg Hanseatische 1933) In it he states in connection with Hitlers being designated chancellor on January 30 1933 Accordingly one can say that on this day Hegel died Marcuse for instance stops here and does not read any further (Marcuse Ncgtr t iot i~[Boston Beacon 19671 275 note 79) Compare with Henning Ottmann I t~t l i~~i t l icc~m bc~i f fc qr l vol 1 (Berlin de Gruyter 1977) 222 n451)tintlGc~rrrc~insc~lrrfi The cont in~~at ion of the text though speaks for itself This does not mean that the great work of this German political philosopher has lost its significance and that the idea of a political leadership that transcends the egoism of social interests sho~lld be abandoned What is truly German and perennial of the powerful spiritual construction erected by Hegel c o n t i n ~ ~ e s (32) Again in to be valuable for the new formation 1935 Schmitt identifies his opposition to the rule of law or Rrc~ht~srtrtrras Hegelian The true antithesis to the Rrclrrsstrrrrr is not a Niclrr-Rrci~rtsrarrr but Hegels StttIiclrXritttrtrt (ethlcal state) See Schmitt Was bedeutet der Streit um den Rechtsstaat rircrr~fi f i ~ c ~ r 95 (1935) clic gcJscrmrr Sttrnr rc~c l~t t~t i cnt t~~t~f i
189-91 35 Schm~t t LPhrr die Drci Artc11 dc Rcc~lrt~~t~irorc~iri~filic~ire~~eDcnXc~l47 36 Ibid 13 37 Hayek Rolc5 titrtl O r t l o 71
Nrryek and Scllrnitt on the Rtlle q f L a u ) 531
Schmitts notion of concrete order formation is interpreted here as an arrangement resulting from the deliberations and conscious decisions of particular individuals In Hayeks own system this corresponds to what he describes as organizations and his conception of law as tllrsis as opposed to nornoc In this respect Schmitts notion of concrete order becomes the ideal vehicle for decisionism in so far as organizations and law as thesis presuppose the agency of personally active individuals Hayek though disregards the supra-personal nature that Schmitt ascribed to his notion of order and by means of which he intended to modify the one-sidedness of his earlier position This interpretation allows Hayek to defend adiametrically opposed conception of order He describes this as a system of abstract relations and interactions where abstract reason and not will becomes the dominant factor Reason simply contemplates the unfolding of a spontaneous natural order which is the result of an evolutionary process the spontaneous outcome ofcustoms and established practices not of human design I submit that Hayek misrepresents Schmitts notion of order as containing purely decisionist elements3R This misrepresentation is functional to his system of thought for it allows him to believe that a great distance separates him from Schmitt In like manner his own self-understanding tends to overlook the decisionist potential that lies dormant in his own conception of order In what follows I will make some general observations that should shorten the distance that Hayek intends to maintain between his own conception of order and that of Schmitt
In the first place I think that Schmitts expressed intention to move away from an exclusively decisionist phase in his thought should be taken seriously His earlier one-sided posture can be attributed to what he saw as an extraordinary weakening of the role of authority during the Weimar period and to h ~ s desire to enhance the role of the Rriclisprarsitlent This is why he came out so strongly against any attempt to water down and enervate the decisionist nature of art 48 After 1933 though when a decisionist course of action had finally prevailed and it appeared as if all crucial decisions had been taken by the Frrehrer Schmitt saw the need to consolidate the regime giving it a measure of stability A superior supra-personal standpoint transcending both decisionism and normativism appeared to him as the indispensable condition to help configure an objective framework that could mediate between state and civil society An important indicator of this attitude is Schmitts effort to move closer to Hegel In Hegels political philosophy he was able to see a form of decisionism that could
38 Schrnitts notion of concrete order surely contains decisionist elements (compare with the requirement of a in his Lthcr ciic D r r iF i i c l r r e x r i ~ r ~ t i ( ~ t i l r r c ~ r ~ tic Rltci i t ~ ~ ~ i ~ ~ c ~ ~ ~ c ~ l ~ t r i i l i c ~ I ~ ( ~ r ~ cannotDc11Xct7t63) Still this principle of leadership operate in a void It is in this latter sense that Schmitts notion of concrete order formation is supraper~onal
532 F R CRISTI
fit within a wider structure that could be contained organically side by side a normative order This explains why Hegels monarch does not strike us immediately as a decisionist figure He may appear to be dormant emptily adding his signature to decisions made by others But in times of emergency he will awake and the gates of his decisionist power will be flung open Hegels conservative monarch as the beginning and apex ofthe whole is his formula to arrest market societys self-destructive competitive race The State presided over by the monarch will not result from contractual arrangements but appears as already constituted as a substantive order predating the individual existence of its membersThis stands well with Schmitts conservative Catholicism That it does not contradict Hayeks contractarianism will be considered shortly
Second there are some decisionist elements visible in Hayeks apparently pure normativist approach He accepts without reservation a principle postulated by Schmitt in his writings namely that democracy and liberalism are logically unrelated answers to logically unrelated questions Hayek writes
Liberalism and democracy although compatible are not the same The difference is best seen if we consider theiropposites the opposite of liberalism is totalitarianism while the opposite of democracy is authoritarianism In conseqilence it is at least possible in principle that a democratic government may be totalitarian and that an authoritarian government may act on liberal principles That a liberal polity may be open to authoritarian rule does not appear contradictory to Hayek In agreement with Schmitt he too distinguishes sharply between civil society and the state The autonomy and independence reserved to the state is what grounds its authoritarian potential Hayek though appears to be explicitly opposed to what he sees as the growing predominance of central planning and proposes a merely negative role for the state The state should abstain from intervening in the affairs proper to civil society Correspondingly his notion of an abstract order presupposes civil societys capacity for self-regulation and confirms the dethronement of politics within that ~ p h e r e ~ Still the negative tasks ascribed to the state are determined and sustained by the action of the state itself It is thus positively and actively that the state restricts and limits its action to a mere1 y negative one so that the depoliticization of civil society turns dialectically into the states active preservation of its monopoly over the political as such
39 Compare with my article The Mitt( and Hegels Monarch f fcgc~lsc~rc folitictr1 TIr(~oi l l (1983) 601-22
30 Hayek Stitdic in Pliilosoplr Politic~c cltid Ecotlotric s 161 41 Hayek Lci~t L~~ ~ i t c t t i o t r trtrd Lil~crty vol 2 Tlrc Zlirtrqe cSocici Jiiticc (Chicago
The University o fch icago Press 197h) 102-03 Tlrc Politic (lIOrdcr(t o Pi(c Socicty 130 139-50
Hrryrk and Schmitt on rllr Rlrle c t f Lau 531
Whenever the normal working of civil society becomes in any iJagt imperilled so that its spontaneous order must be converted into an organization the knowledge of such a situation and the decision to alter the spontaneous order of civil society lie beyond its powers in so far as they are recognized as being of a political nature Hayek admits that the power to declare a state of emergency belongs to the state And it does not escape his attention that there is some plausibility in Schmitts contention that whoever has the power to proclaim an emergency and on this ground suspend any part of the constitution is the true ~overeign~ It appears as if Hayek has not been able to exorcise this ugly notion of sovereignty and that Bolingbrokes dictum-there must be an absolute unlimited and uncontroulable [sic] power lodged somewhere in every government43-would still be true Hayek offers a series of precautionary measures aimed at avoiding a relapse into an unbalanced decisionist posture I will not discuss at this point whether these measures are effective or not I will only say that decisionist elements are potentially incorporated into his system in so far as essential to it is the separation between state and civil society
Finally I think it is possible to show that this potential decisionism built into Hayeks system does not remain as a purely potential moment Behind the rule of law which abstractly rationally and objectively configures the institutions of government one should be able to see the actual decision to abide by such a rule And this decision finds its motivation and force not in the realm of pure rational law but in the obscure recesses of material civil society The rule of law is expressed by abstract general rules which regard all individuals as equal however unequal they may in fact be Its rationality can thus be taken as purely formal compatible with democratic methods4 but not with a Rousseauan democracy as the identity between rulers and ruled In fact as Hayek himself admits the order that sustains the rule of law is the product not of any rational design but of a process of evolution and natural selection an unintended product whose function we can learn to understand but whose present significance may be wholly different from
42 Hayek The Political Order qf a Free People 125 43 Bolingbroke The Idea qf a P(lrrior King S W Jackman (ed) (Indianapolis
Bobbs-Merrill 1965) 18 44 Joseph Raz has perceived the compatibility of the rule of law as Hayek understands
it with nondemocratic systems (The Rule of Law and its Virtue The L U M Qrarterly Re~ iet t 93 [1977] 196) A non-democratic legal system based on the denial of human rights on extensive poverty on racial segregation sexual inequalities and religious persecution may in principle conform to the requirements of the rule of law better than any of the legal systems of the more enlightened western democracies This does not mean that it will be better than those western democracies It will be an immeasurably worse legal system but it will excel in one respect in its conformity to the rule of law Compare with John Gray Hayek on Liberty Rights and Justice Ethics 92 (19811 77-78
534 F R CRISTI
the intention of its creator^ldquo^ This order though is not abstract and void but represents a particular class s t r ~ c t u r e ~ Some individuals will be better represented by it than others namely those individuals whom Hayek sees as belonging to groups which happen to have adopted rules conducive to a more effective order of action [and which] will tend to prevail over groups with a less effective order- This determines the constitution of natural ranks whose privileges and correlative disadvantages do not depend on the will of anybody in particular but should be seen as arising in a purely accidental fashion The rule of law that presides over this concrete and particular order of things is surely blind to its own particularity I see in this though more than just a natural blindness it is a disturbingly clear-sighted will and desire not to see
Hayeks political theory envisages an individualist view of human liberty and a contractarian view of society Yet he has appeared as a staunch defender of a social hierarchy which individuals are not free to choose How can he embrace these views without contradiction How can he be both liberal and conservative Just as Schmitt finds an answer to these queries in Hegels conservative-liberal political philosophy so Hayek traces his steps back to Hume the philosopher he admires most In Hume he is able to read the ideology of a liberal progressive aristocracy open to change innovation and industry In this respect the social hierarchy envisaged by Hume does not depend on anybodys particular merit or virtue So great is the uncertainty of merit both from its natural obscurity and from the self-conceit of each individual that no determinate rule of conduct could ever follow from it18 Individuals are allocated places in that hierarchy by chance and circumstance for instance by the accident of their natural birth The sovereignty of the people can then be replaced by the sovereignty of nature In this manner we are preserved from our selfishness and limited generosity Nature teaches us to accept the solidarity of subservience And it is this natural rank solidarity that preserves civil society from chaos and competitive anarchy A contemporary of Hume Samuel Johnson expressed the same when he told his friend Boswell Thus sir there would be a perpetual struggle for precedence were there no
45 Hayek TI( M i r t r ~ c of Socinl J~rst ice 79 36 A parallel objection is raised by Fraenkel against Schmitts notion of concrete order
(Tlic Drrtrl State 145) The problem of the concrete theory of order transcends the limits of the system of concrete communities This problem demands solution by decisionism and since there is no norm this decision-to employ Schmitts terminology-must be derived from a void In reality however this void is not advoid at all It is the value system associated with the class structure ofpresent-day society
47 Hayek Tlic Mirtrgc~ oSocitrl J~fi t iccj 16 48 Hume An Inyrri Concrrnini tiic Iirinciplrc of MorciIs in H r l r n r ~Ecctr (London
George Routledge 1894) 422
fixed invariable rules for the distinction of rank which creqes PO
jealousy as it is allowed to be a c ~ i d e n t a l ~ ~
39 Boswell in Tlir Lifc ofScinii(c Jolrnso~i A Napier (ed ) vol I (London George Routledge 1892) 356 Compare with David Miller Hume and Possessive Individualiam his to^ i loiiticcil Tlror~glit 1 (1980) 277
of the exceptional It is ultimately the explanatory and existential force of the exceptional and extraordinary which sustain what is to be considered normal and ordinary Schmitt quotes from Kierkegaard The exception explains the universal so that when one wishes to study the universal all one needs to do is to consider a warranted exception The exceptional will place everything in a much clearer light than the universal itself- For Schmitt then the legally normal is defined and explained by an extraordinary will the will of the sovereign As an abstract concept a sovereign is simply he who decides on the state of exception In principle there can be no definition of the exceptional At best one can approach this question in terms of a political theology and operate on the analogy afforded by the supreme command of God over creation Political theology then explains the unlimited powerlf secular sovereigns by their participation in Gods omnipotence The decision that suspends the rule of law can in similar fashion be explained as a miracle According to Schmitt nineteenth-century liberalism effectively suppressed awareness of the voluntarist foundations that ground the rule of law But one had simply to look behind its euphoric faqade to perceive the prose of Roman sovereignty
Armed with this simple distinction Schmitt set out to uncover and free the decisionist elements he saw repressed by the overtly normativist nature of the Weimar constitution Instead of the Reicl~rtrgwhich he perceived as lacking in vigour and resolution he pointed his finger in the direction of the Riclzsprr~csidrnras the constitutional figure containing the most decisionist potential The Rrichsprt~esid~ntwas an anomaly in the Weimar constitutional design Owing much to Webers idea of a charismatic leader he provided a substitute for the role previously held by the throne But beyond the intentions of the jurists that devised his role the course of events was partly responsible for his elevation from what could have been a purely decorative function to supreme arbitrator to protector of the constitution to sovereign ruler of the state Schmitt followed that ascending career step by step and was perhaps solely responsible for helping to chart that course clearing from it ideological obstacles and reservation^^^
Among these were a number of assumptions made by Weimar liberalism which were the result of accretions to the classical core of
14 Sbren Kierkegaard Dicj Wic~cierliol~ctig Gr5 Wcrkc~(Duesseldorf Eugen Diederichs 1967) 93 Quoted by Schmitt in his Politiclrr Tlrc~ologic 11
15 Schmitt Polit icc~c~Tlieologic~11-12 16 It is a different story when Schmitt descends from this abstract plane to the concrete
applications of s o ~ e r e i g n t y In the Appendix to his Dicj D i k t c i t ~ ~ t he denies that the Rc~icl i sl~tcic~sicletlt embody the p lc t l i t~ ido potectat~i which thecan was accorded monarch in the Prussian constitution for instance (Schmitt Dlc DiXtert~cr dcr Rc~it~Iispt~ctc~sielrtitc~t1t ~ ( t ( i111t48 elcit Writtcitor lc~tfi~cotry appendix to Die DiXtcittrt 36-37)
17 Heinrich Muth Carl Schmitt in der Deutschen lnnepolitik des Sommers 1932 Nicto~icclicLci tsc~ri f t Beiheft (1971) 75-147
526 F R CRISTI
liberalism in its secular efforts to accommodate rising democratic pressures It was against these democratically determined assumptions that Schmitt concentrated his fire The first was the democratic erosion of the liberal distinction between the state and civil society 18 Liberalism conceived civil society as the protected domain of individual rights The function of the rule of law was to eliminate any unwanted interference in this sphere At the same time-and this is often overlooked-the separation from civil society secured a protected domain for the state as well thus granting it the monopoly of the political as such Confronting the pluralism of civil society the state embodied its political unity In this manner the classical liberal state was assured of autonomy and independence For classical liberalism then the states most important function was to prevent the politicization of civil society restraining all democratic efforts aimed specifically at abolishing the separation of labour and capital Liberal governments present a duality which perhaps nobody has expressed with greater clarity than Constant le gouvernement en dehors de sa sphere ne doit avoir aucun pouvoir dans sa sphere il ne saurait en avoir troplg Now as Schmitt saw it the advance of democracy within the Weimar republic fatally compromised the authority of this liberal state and eroded the distinction between spheres and competences Democracy demands an identity between civil society and the state and its pressures from below have the effect of weakening the state as an autonomous political entity The nineteenth-century liberal state in response to these same pressures had become progressively neutralized losing its monopoly over politics20 Politics had thus transferred its locus from the state to civil society This is what properly characterized the historic compromise between liberalism and democracy But according to Schmitt this could only be a very unstable compromise for the diffusion of politics to the extent that it could become the property of society signified not only the end of the authoritarian state of classical liberalism but also the end of the liberal democratic state itself Total politicization of civil society signals the emergence of a new state Inspired by Juengers notion of totale Mobilmachrrng Schmitt calls this new state total state21 later
18 Schmitt Drr Hurter drr Verfcrss~tng (2nd ed Berlin Duncker amp Humblot 1969) 73 The first edition of this work was published in March 1931
19 Quoted in Wilhelm Roepke Ci~iras H~rmunu (London W Hodge 1948) 28 20 Schmitt Tllr Concrpt cftl7e Politicul trans by George Schwab (New Brunswick
Rutgers University Press) 22 Compare with Max Weber T17r Tl7ror ofSociu1 clnd Econornic 0rgrini-ution (New York Free Press 1968) 156 Hayek TI[( Cotlstir~rfion r f L i h c r t ~ 21 Robert Nozick in his Antrrcliy Srcrrc clrld Cropicl (New York Basic Books 1974) 23 explicitly refers to Weber in this respect
21 Schmitt uses this notion forthe first time in D r ~ F l ~ ~ c ~ r r r d c rILtf(rss107g(79) It is used again in October of the same year (1931) in his Conceprcfrlle Politiccr1 23-24 and then in November 1932 in a conference given to the Langman association of German businessmen later published in VolX find Rricll (February 1913) with the
Htrypk and Schmi f t on flle R l ~ l e cfLrr~t 527
rendered in English as totalitarian state This totalitarian state has more affinities with democracy than with liberalism It is not the result of the strengthened authority and autonomy of the classical liberal state but of its democratic weakening It is against this totalitarian state and against the neutralized liberal democratic state that precedes it that Schmitt advocates the total depoliticization of civil society and the total concentration of political power in an authoritarian state According to Schmitt this new state would survive only if it abandoned popular sovereignty as an assumption This was precisely the mission placed in the hands of the Reichsprctesid~nrHe should cease to be seen as a mere extension of civil society and should rise above it in dictatorial independence and autonomy His authoritarian rule would then signal the advent of a post-democratic state
A second assumption made by nineteenth-century liberalism was the acceptance of the pre-eminence of democratic legitimation over the monarchical principle-l Classical liberalism cannot be said to have been incompatible with the latter On the contrary the monarchical principle represented a viable institutional arrangement to preserve the separation between civil society and the state in so far as the monarch centralized and monopolized political matters Schmitt cleverly perceived that it would be impossible to assail this second assumption of nineteenth-century liberalism and to revive the monarchical principle Still he conceived of a way to dilute and adulterate popular sovereignty so as to render it ineffective Again he focussed his attention on the figure of the Reicl~sprarsidentIt is true that the Weimar constitution established that the R e i c ~ h s p r ~ e s i d e r ~ fwas to be elected popularly But such an election could be interpreted as something different from a democratic election It could be seen as a plebiscitarian acclamation in which certain external formalities of the democratic process were respected but its participatory content denied
[The Reic~lrspvricsidc~17tJis ideally thought of as the man who unifies in himself the trust of the people as a whole beyond the limits of party organization and
programmatic title Starker Staat und gesunde Wirtschaft Heinz 0 Ziegler in a work that owes much to Schmitt draws the distinction between totalitarianism and authoritarianism (Allroritrrerrr odrr fi~ttrlc~r Stnrlt [Tuebingen Mohr 19321) This distinction c o n s t i t ~ ~ t e s the basis for later discussions of this subject Ultimately what Marcuse Fraenkel Neumann Talmon Hayek Popper Friedrich Brzezinski Arendt Barber and Kirkpatrick have to say on this matter is tributary to Schmitt s pioneer work It is interesting to note that Schmitt s distinction between qualitative and q~~ant i t a t ive totalitarianism turns authoritarianism into a variant of the totalitarian state (Starker Staat und gesunde Wirtschaft 84) Compare with Lc~cllitcict trrrcl Lcgitimitrrcr (Muenchen and Leipzig Duncker amp Humblot 1932) 93 and with Schwab Tire Clrtrllcngr c x f E~cepriot~14-46
22 Schmitt Lcgcllirclcr trtrcl Le~irinlircrer 96 Compare with Hayek Tlrr Poliricii1 01clcr ottr Fwe People 195
23 Ibid 93 24 Schmitt 1 2 r ~ c ~ s s ~ ~ t ~ y s l ~ ~ l ~ r c ~ 90-91
528 F R CRISTI
party bureaucracies He is able to do this as the man in whom the whole of the people have placed their trust and not as the member of a political party The election of the Rcichsprclcsident is more than any ordinary democratic election It is the grandiose acclamation of the German people j
The people acclaiming the Rrichsprcie~idrntact as an unorganized mass of electors incapable of deciding on the substantive issues concerning them The people select their leaders in order that they may govern They do not themselves continuously decide on the leaders difficulties and their differences of pinion^ A strong independent leadership is implied strong enough to impose the necessary depoliticization of civil society and prevent its total democratic politicization Still one i 4 bound to ask why a total depoliticization of civil society would be less totalitarian than its total politicization Is it a coincidence that of all the institutions contained in the Weimar constitution only that of the Rricl~~prarsicirrl tsurvived without alterations during the Nazi regime17
A further assumption of nineteenth-century liberalism which Schmitt sought to enervate was the institution of modern parliaments Ideally parliaments embody two principles vital for the government of civil society-discussion and publicity x These constitute the necessary preconditions of rational exchange of ideas and rational decision-making However the full expansion of market relationships during the nineteenth century affected parliamentary functions Disinterested rational debate was no longer possible and the clash of opinions gave way to a clash of irreconcilable interest^^ According to Schmitt it was at that point that parliaments became the instruments by which civil society attempted to control the state depriving it of its autonomy At the same time the democratic component of liberal democracy was meant to produce the politicization of civil society blurring the separation between civil society and the state and depriving parliaments of their monopoly over politics Deputies were bound to lose their traditional representative roles and to become more and more dependent on their electoral basis and on the parties to which they belonged Schmitt concluded that parliamentary governments such as the one defined by the Weimar constitution were doomed to fail The pluralistic tendencies proper to civil society robbed them of their capacity to decide and condemned them to endless discussion and indecision irrevocably torn by party positions and recalcitrant interest groups
25 Ibid 350 26 Ibid 351 27 Compare with Ernst Rudolf Huber Das Staatsoberhaupt des Deutschen Keiches
Z e i t s c ~ l ~ r ~ f i f i i e r 95 (1935) 203 die gesanlre Stacitsreclzt~c~issenscllqfi
28 Schmitt Die geist~sgesclziclztlic~eLuge des I7e11tigerz Purlnmet7tarismm (3rd ed Berlin Duncker amp Humblot 1961) and following pages
29 Ibid 9-10
Hayrk orld Schmirr o n tllc Riilr of Lnis 529
For these maladies Schmitt again advocated the role of a decisionist Rrichsprcrrsicicnt Only he could escape civil societys centrifugal pluralism and standing beyond partisan positions only he could unify the nation by holding the trust of the people as a whole The crucial ingredients in the script Schmitt was preparing for the Rcicllsprorsitlent were contained in art 48 of the Weimar constitution This article invested the Reic~llsprarsitlcntwith extraordinary dictatorial powers to face emergencies including the ability to decree measures that contravened the legally established order It was in this exceptional power that Schmitt saw the constitutive factor of what is defined as the normal situation Norms can only exist because the exceptional and abnormal have been taken care of
Most of those acquainted with Schmitts work have seen in liberalism his principal ideological adversary xO This indeed represents Schmitts own self-understanding I maintain though that this is not the case and that his attacks were directed against the democratic component in nineteenth-century liberalism particularly against the principle of popular sovereignty This comes to light with great clarity after 1933 when he was beginning to be proved right by historical events It is at this point that he began to expand on the limitations of dec i~ ionism~ Decisionism now appeared to him as one-sided as normativism in that it lacked the objectivity needed to legitimate a stable framework for continuous political action There was the danger he recognized in November 1933X2 that the urgencies of the present could obscure the tranquil being (das ruhende Sein) underlying a great political movement That tranquil being should be seen as preceding any movement It constitutes the ground on which stand both a normative state and a decisionist party Schmitts early Fichtean critique of the Kantian rule of law has receded leaving a space for a more moderate Hegelian compromise Hegel is definitely in Schmitts mind when he introduces the notion of concrete order This corresponds to the transcendentally tranquil being embracing both decisionism and normativism as their condition of possibility Immediately modelled on Harious theory of the institution this transcendental order I-emirids us
30 Georg Dahm review of Schmitts Lebtgtrdie Drei Arrcn des Rcc~lrt~tissrnsc~I~t~~ilicI~c~n Dc~trhorsin the citsc~irrififr~rr 95 (1935) 181 die grsrrmte Srtrtrrsrec~l~rsu~issrr~sc~lrqfi [Schmitts works] are from the start determinately aimed at weakening and abolishing the liberal Recirrs~rautand at superseding the legislative state Compare with Hayek Lan Legisluriorl trtrtl Libc~rty vol 1 Rrllrs trnd Order (Chicago University of Chicago Press 1971) 161 note 19 Leo Strauss Comments on Carl Schmitts L ) o Bcgr(fPdrs Pol i t isc~lr~~~i ( f r l l c Poirictrl 82in Tire Co~ri(gt[)r Mathias Schmitz Dic Frt~rrr~ci-F(~it~tl-TI~corit~Crrrl S(rtritt (Koeln amp Opladen Westdeutscher 1965) 127
31 Compare with Schwab T11c~ Clrrrllrr~gc~ o f E-ceptior 87 32 Schmitt Poirische Ti~eologie Preface 33 Schmitt Leher clic Drci Artrrl t l r ~ R c c ~ l r t ~ ~ t ~ i s s c ~ r ~ s c ~ I ~ t ~ f i I i ( ~ I ~ ~ ~ i ~DrtlXc~rs40-44
530 F R CRISTI
of Hegels ethical State According to Schmitt Hegels State is not merely the embodiment of sovereign decision nor the empty position of a norm of norms nor even the fluctuating scenario for alternating situations of emergency and stability Rather one should see in it the concrete order of orders the institution of institutions Neither the impc3rsonal rule of law nor the prrsor1~1measures of a sovereign can monopolize the political sphere Both have their transcendental condition of possibility in an already given sr(prapersona1 ~ r d e r ~
Hayek follows the views of those who think that Schmitts main adversary is liberalism in all its manifestations and that it is precisely this anti-liberal posture that accounts for his smooth conversion to National Socialism in 1933 This particular understanding of Schmitts legal and political theory determines for instance the brief but comprehensive critical account Hayek gives of it in his La Legisllrtion lint1 Liberty
[Schmitts] central belief as he finally formulated it is that from the normative thinking of the liberal tradition law has gradually advanced through a decisionist phase in which the will of the legislative authorities decided on particular matters to the conception of concrete order formation In other words law is not to consist of abstract rules which make possible the formation of a spontaneous order by the free action of individuals through limiting the range of their actions but is to be the instrument of arrangement o r organization by which the individual is made to serve concrete purposes This is the inevitable outcome of an intellectual development in which the self-ordering forces of society and the role of law in an ordering mechanism are no longer understood
34 Ibid 45-57 There is a certain ambiguity in Schmitts relation to Hegel apparently a product of a reference to the latter in his book Srcitrr Reuegetng ltnd LolX (Hamburg Hanseatische 1933) In it he states in connection with Hitlers being designated chancellor on January 30 1933 Accordingly one can say that on this day Hegel died Marcuse for instance stops here and does not read any further (Marcuse Ncgtr t iot i~[Boston Beacon 19671 275 note 79) Compare with Henning Ottmann I t~t l i~~i t l icc~m bc~i f fc qr l vol 1 (Berlin de Gruyter 1977) 222 n451)tintlGc~rrrc~insc~lrrfi The cont in~~at ion of the text though speaks for itself This does not mean that the great work of this German political philosopher has lost its significance and that the idea of a political leadership that transcends the egoism of social interests sho~lld be abandoned What is truly German and perennial of the powerful spiritual construction erected by Hegel c o n t i n ~ ~ e s (32) Again in to be valuable for the new formation 1935 Schmitt identifies his opposition to the rule of law or Rrc~ht~srtrtrras Hegelian The true antithesis to the Rrclrrsstrrrrr is not a Niclrr-Rrci~rtsrarrr but Hegels StttIiclrXritttrtrt (ethlcal state) See Schmitt Was bedeutet der Streit um den Rechtsstaat rircrr~fi f i ~ c ~ r 95 (1935) clic gcJscrmrr Sttrnr rc~c l~t t~t i cnt t~~t~f i
189-91 35 Schm~t t LPhrr die Drci Artc11 dc Rcc~lrt~~t~irorc~iri~filic~ire~~eDcnXc~l47 36 Ibid 13 37 Hayek Rolc5 titrtl O r t l o 71
Nrryek and Scllrnitt on the Rtlle q f L a u ) 531
Schmitts notion of concrete order formation is interpreted here as an arrangement resulting from the deliberations and conscious decisions of particular individuals In Hayeks own system this corresponds to what he describes as organizations and his conception of law as tllrsis as opposed to nornoc In this respect Schmitts notion of concrete order becomes the ideal vehicle for decisionism in so far as organizations and law as thesis presuppose the agency of personally active individuals Hayek though disregards the supra-personal nature that Schmitt ascribed to his notion of order and by means of which he intended to modify the one-sidedness of his earlier position This interpretation allows Hayek to defend adiametrically opposed conception of order He describes this as a system of abstract relations and interactions where abstract reason and not will becomes the dominant factor Reason simply contemplates the unfolding of a spontaneous natural order which is the result of an evolutionary process the spontaneous outcome ofcustoms and established practices not of human design I submit that Hayek misrepresents Schmitts notion of order as containing purely decisionist elements3R This misrepresentation is functional to his system of thought for it allows him to believe that a great distance separates him from Schmitt In like manner his own self-understanding tends to overlook the decisionist potential that lies dormant in his own conception of order In what follows I will make some general observations that should shorten the distance that Hayek intends to maintain between his own conception of order and that of Schmitt
In the first place I think that Schmitts expressed intention to move away from an exclusively decisionist phase in his thought should be taken seriously His earlier one-sided posture can be attributed to what he saw as an extraordinary weakening of the role of authority during the Weimar period and to h ~ s desire to enhance the role of the Rriclisprarsitlent This is why he came out so strongly against any attempt to water down and enervate the decisionist nature of art 48 After 1933 though when a decisionist course of action had finally prevailed and it appeared as if all crucial decisions had been taken by the Frrehrer Schmitt saw the need to consolidate the regime giving it a measure of stability A superior supra-personal standpoint transcending both decisionism and normativism appeared to him as the indispensable condition to help configure an objective framework that could mediate between state and civil society An important indicator of this attitude is Schmitts effort to move closer to Hegel In Hegels political philosophy he was able to see a form of decisionism that could
38 Schrnitts notion of concrete order surely contains decisionist elements (compare with the requirement of a in his Lthcr ciic D r r iF i i c l r r e x r i ~ r ~ t i ( ~ t i l r r c ~ r ~ tic Rltci i t ~ ~ ~ i ~ ~ c ~ ~ ~ c ~ l ~ t r i i l i c ~ I ~ ( ~ r ~ cannotDc11Xct7t63) Still this principle of leadership operate in a void It is in this latter sense that Schmitts notion of concrete order formation is supraper~onal
532 F R CRISTI
fit within a wider structure that could be contained organically side by side a normative order This explains why Hegels monarch does not strike us immediately as a decisionist figure He may appear to be dormant emptily adding his signature to decisions made by others But in times of emergency he will awake and the gates of his decisionist power will be flung open Hegels conservative monarch as the beginning and apex ofthe whole is his formula to arrest market societys self-destructive competitive race The State presided over by the monarch will not result from contractual arrangements but appears as already constituted as a substantive order predating the individual existence of its membersThis stands well with Schmitts conservative Catholicism That it does not contradict Hayeks contractarianism will be considered shortly
Second there are some decisionist elements visible in Hayeks apparently pure normativist approach He accepts without reservation a principle postulated by Schmitt in his writings namely that democracy and liberalism are logically unrelated answers to logically unrelated questions Hayek writes
Liberalism and democracy although compatible are not the same The difference is best seen if we consider theiropposites the opposite of liberalism is totalitarianism while the opposite of democracy is authoritarianism In conseqilence it is at least possible in principle that a democratic government may be totalitarian and that an authoritarian government may act on liberal principles That a liberal polity may be open to authoritarian rule does not appear contradictory to Hayek In agreement with Schmitt he too distinguishes sharply between civil society and the state The autonomy and independence reserved to the state is what grounds its authoritarian potential Hayek though appears to be explicitly opposed to what he sees as the growing predominance of central planning and proposes a merely negative role for the state The state should abstain from intervening in the affairs proper to civil society Correspondingly his notion of an abstract order presupposes civil societys capacity for self-regulation and confirms the dethronement of politics within that ~ p h e r e ~ Still the negative tasks ascribed to the state are determined and sustained by the action of the state itself It is thus positively and actively that the state restricts and limits its action to a mere1 y negative one so that the depoliticization of civil society turns dialectically into the states active preservation of its monopoly over the political as such
39 Compare with my article The Mitt( and Hegels Monarch f fcgc~lsc~rc folitictr1 TIr(~oi l l (1983) 601-22
30 Hayek Stitdic in Pliilosoplr Politic~c cltid Ecotlotric s 161 41 Hayek Lci~t L~~ ~ i t c t t i o t r trtrd Lil~crty vol 2 Tlrc Zlirtrqe cSocici Jiiticc (Chicago
The University o fch icago Press 197h) 102-03 Tlrc Politic (lIOrdcr(t o Pi(c Socicty 130 139-50
Hrryrk and Schmitt on rllr Rlrle c t f Lau 531
Whenever the normal working of civil society becomes in any iJagt imperilled so that its spontaneous order must be converted into an organization the knowledge of such a situation and the decision to alter the spontaneous order of civil society lie beyond its powers in so far as they are recognized as being of a political nature Hayek admits that the power to declare a state of emergency belongs to the state And it does not escape his attention that there is some plausibility in Schmitts contention that whoever has the power to proclaim an emergency and on this ground suspend any part of the constitution is the true ~overeign~ It appears as if Hayek has not been able to exorcise this ugly notion of sovereignty and that Bolingbrokes dictum-there must be an absolute unlimited and uncontroulable [sic] power lodged somewhere in every government43-would still be true Hayek offers a series of precautionary measures aimed at avoiding a relapse into an unbalanced decisionist posture I will not discuss at this point whether these measures are effective or not I will only say that decisionist elements are potentially incorporated into his system in so far as essential to it is the separation between state and civil society
Finally I think it is possible to show that this potential decisionism built into Hayeks system does not remain as a purely potential moment Behind the rule of law which abstractly rationally and objectively configures the institutions of government one should be able to see the actual decision to abide by such a rule And this decision finds its motivation and force not in the realm of pure rational law but in the obscure recesses of material civil society The rule of law is expressed by abstract general rules which regard all individuals as equal however unequal they may in fact be Its rationality can thus be taken as purely formal compatible with democratic methods4 but not with a Rousseauan democracy as the identity between rulers and ruled In fact as Hayek himself admits the order that sustains the rule of law is the product not of any rational design but of a process of evolution and natural selection an unintended product whose function we can learn to understand but whose present significance may be wholly different from
42 Hayek The Political Order qf a Free People 125 43 Bolingbroke The Idea qf a P(lrrior King S W Jackman (ed) (Indianapolis
Bobbs-Merrill 1965) 18 44 Joseph Raz has perceived the compatibility of the rule of law as Hayek understands
it with nondemocratic systems (The Rule of Law and its Virtue The L U M Qrarterly Re~ iet t 93 [1977] 196) A non-democratic legal system based on the denial of human rights on extensive poverty on racial segregation sexual inequalities and religious persecution may in principle conform to the requirements of the rule of law better than any of the legal systems of the more enlightened western democracies This does not mean that it will be better than those western democracies It will be an immeasurably worse legal system but it will excel in one respect in its conformity to the rule of law Compare with John Gray Hayek on Liberty Rights and Justice Ethics 92 (19811 77-78
534 F R CRISTI
the intention of its creator^ldquo^ This order though is not abstract and void but represents a particular class s t r ~ c t u r e ~ Some individuals will be better represented by it than others namely those individuals whom Hayek sees as belonging to groups which happen to have adopted rules conducive to a more effective order of action [and which] will tend to prevail over groups with a less effective order- This determines the constitution of natural ranks whose privileges and correlative disadvantages do not depend on the will of anybody in particular but should be seen as arising in a purely accidental fashion The rule of law that presides over this concrete and particular order of things is surely blind to its own particularity I see in this though more than just a natural blindness it is a disturbingly clear-sighted will and desire not to see
Hayeks political theory envisages an individualist view of human liberty and a contractarian view of society Yet he has appeared as a staunch defender of a social hierarchy which individuals are not free to choose How can he embrace these views without contradiction How can he be both liberal and conservative Just as Schmitt finds an answer to these queries in Hegels conservative-liberal political philosophy so Hayek traces his steps back to Hume the philosopher he admires most In Hume he is able to read the ideology of a liberal progressive aristocracy open to change innovation and industry In this respect the social hierarchy envisaged by Hume does not depend on anybodys particular merit or virtue So great is the uncertainty of merit both from its natural obscurity and from the self-conceit of each individual that no determinate rule of conduct could ever follow from it18 Individuals are allocated places in that hierarchy by chance and circumstance for instance by the accident of their natural birth The sovereignty of the people can then be replaced by the sovereignty of nature In this manner we are preserved from our selfishness and limited generosity Nature teaches us to accept the solidarity of subservience And it is this natural rank solidarity that preserves civil society from chaos and competitive anarchy A contemporary of Hume Samuel Johnson expressed the same when he told his friend Boswell Thus sir there would be a perpetual struggle for precedence were there no
45 Hayek TI( M i r t r ~ c of Socinl J~rst ice 79 36 A parallel objection is raised by Fraenkel against Schmitts notion of concrete order
(Tlic Drrtrl State 145) The problem of the concrete theory of order transcends the limits of the system of concrete communities This problem demands solution by decisionism and since there is no norm this decision-to employ Schmitts terminology-must be derived from a void In reality however this void is not advoid at all It is the value system associated with the class structure ofpresent-day society
47 Hayek Tlic Mirtrgc~ oSocitrl J~fi t iccj 16 48 Hume An Inyrri Concrrnini tiic Iirinciplrc of MorciIs in H r l r n r ~Ecctr (London
George Routledge 1894) 422
fixed invariable rules for the distinction of rank which creqes PO
jealousy as it is allowed to be a c ~ i d e n t a l ~ ~
39 Boswell in Tlir Lifc ofScinii(c Jolrnso~i A Napier (ed ) vol I (London George Routledge 1892) 356 Compare with David Miller Hume and Possessive Individualiam his to^ i loiiticcil Tlror~glit 1 (1980) 277
526 F R CRISTI
liberalism in its secular efforts to accommodate rising democratic pressures It was against these democratically determined assumptions that Schmitt concentrated his fire The first was the democratic erosion of the liberal distinction between the state and civil society 18 Liberalism conceived civil society as the protected domain of individual rights The function of the rule of law was to eliminate any unwanted interference in this sphere At the same time-and this is often overlooked-the separation from civil society secured a protected domain for the state as well thus granting it the monopoly of the political as such Confronting the pluralism of civil society the state embodied its political unity In this manner the classical liberal state was assured of autonomy and independence For classical liberalism then the states most important function was to prevent the politicization of civil society restraining all democratic efforts aimed specifically at abolishing the separation of labour and capital Liberal governments present a duality which perhaps nobody has expressed with greater clarity than Constant le gouvernement en dehors de sa sphere ne doit avoir aucun pouvoir dans sa sphere il ne saurait en avoir troplg Now as Schmitt saw it the advance of democracy within the Weimar republic fatally compromised the authority of this liberal state and eroded the distinction between spheres and competences Democracy demands an identity between civil society and the state and its pressures from below have the effect of weakening the state as an autonomous political entity The nineteenth-century liberal state in response to these same pressures had become progressively neutralized losing its monopoly over politics20 Politics had thus transferred its locus from the state to civil society This is what properly characterized the historic compromise between liberalism and democracy But according to Schmitt this could only be a very unstable compromise for the diffusion of politics to the extent that it could become the property of society signified not only the end of the authoritarian state of classical liberalism but also the end of the liberal democratic state itself Total politicization of civil society signals the emergence of a new state Inspired by Juengers notion of totale Mobilmachrrng Schmitt calls this new state total state21 later
18 Schmitt Drr Hurter drr Verfcrss~tng (2nd ed Berlin Duncker amp Humblot 1969) 73 The first edition of this work was published in March 1931
19 Quoted in Wilhelm Roepke Ci~iras H~rmunu (London W Hodge 1948) 28 20 Schmitt Tllr Concrpt cftl7e Politicul trans by George Schwab (New Brunswick
Rutgers University Press) 22 Compare with Max Weber T17r Tl7ror ofSociu1 clnd Econornic 0rgrini-ution (New York Free Press 1968) 156 Hayek TI[( Cotlstir~rfion r f L i h c r t ~ 21 Robert Nozick in his Antrrcliy Srcrrc clrld Cropicl (New York Basic Books 1974) 23 explicitly refers to Weber in this respect
21 Schmitt uses this notion forthe first time in D r ~ F l ~ ~ c ~ r r r d c rILtf(rss107g(79) It is used again in October of the same year (1931) in his Conceprcfrlle Politiccr1 23-24 and then in November 1932 in a conference given to the Langman association of German businessmen later published in VolX find Rricll (February 1913) with the
Htrypk and Schmi f t on flle R l ~ l e cfLrr~t 527
rendered in English as totalitarian state This totalitarian state has more affinities with democracy than with liberalism It is not the result of the strengthened authority and autonomy of the classical liberal state but of its democratic weakening It is against this totalitarian state and against the neutralized liberal democratic state that precedes it that Schmitt advocates the total depoliticization of civil society and the total concentration of political power in an authoritarian state According to Schmitt this new state would survive only if it abandoned popular sovereignty as an assumption This was precisely the mission placed in the hands of the Reichsprctesid~nrHe should cease to be seen as a mere extension of civil society and should rise above it in dictatorial independence and autonomy His authoritarian rule would then signal the advent of a post-democratic state
A second assumption made by nineteenth-century liberalism was the acceptance of the pre-eminence of democratic legitimation over the monarchical principle-l Classical liberalism cannot be said to have been incompatible with the latter On the contrary the monarchical principle represented a viable institutional arrangement to preserve the separation between civil society and the state in so far as the monarch centralized and monopolized political matters Schmitt cleverly perceived that it would be impossible to assail this second assumption of nineteenth-century liberalism and to revive the monarchical principle Still he conceived of a way to dilute and adulterate popular sovereignty so as to render it ineffective Again he focussed his attention on the figure of the Reicl~sprarsidentIt is true that the Weimar constitution established that the R e i c ~ h s p r ~ e s i d e r ~ fwas to be elected popularly But such an election could be interpreted as something different from a democratic election It could be seen as a plebiscitarian acclamation in which certain external formalities of the democratic process were respected but its participatory content denied
[The Reic~lrspvricsidc~17tJis ideally thought of as the man who unifies in himself the trust of the people as a whole beyond the limits of party organization and
programmatic title Starker Staat und gesunde Wirtschaft Heinz 0 Ziegler in a work that owes much to Schmitt draws the distinction between totalitarianism and authoritarianism (Allroritrrerrr odrr fi~ttrlc~r Stnrlt [Tuebingen Mohr 19321) This distinction c o n s t i t ~ ~ t e s the basis for later discussions of this subject Ultimately what Marcuse Fraenkel Neumann Talmon Hayek Popper Friedrich Brzezinski Arendt Barber and Kirkpatrick have to say on this matter is tributary to Schmitt s pioneer work It is interesting to note that Schmitt s distinction between qualitative and q~~ant i t a t ive totalitarianism turns authoritarianism into a variant of the totalitarian state (Starker Staat und gesunde Wirtschaft 84) Compare with Lc~cllitcict trrrcl Lcgitimitrrcr (Muenchen and Leipzig Duncker amp Humblot 1932) 93 and with Schwab Tire Clrtrllcngr c x f E~cepriot~14-46
22 Schmitt Lcgcllirclcr trtrcl Le~irinlircrer 96 Compare with Hayek Tlrr Poliricii1 01clcr ottr Fwe People 195
23 Ibid 93 24 Schmitt 1 2 r ~ c ~ s s ~ ~ t ~ y s l ~ ~ l ~ r c ~ 90-91
528 F R CRISTI
party bureaucracies He is able to do this as the man in whom the whole of the people have placed their trust and not as the member of a political party The election of the Rcichsprclcsident is more than any ordinary democratic election It is the grandiose acclamation of the German people j
The people acclaiming the Rrichsprcie~idrntact as an unorganized mass of electors incapable of deciding on the substantive issues concerning them The people select their leaders in order that they may govern They do not themselves continuously decide on the leaders difficulties and their differences of pinion^ A strong independent leadership is implied strong enough to impose the necessary depoliticization of civil society and prevent its total democratic politicization Still one i 4 bound to ask why a total depoliticization of civil society would be less totalitarian than its total politicization Is it a coincidence that of all the institutions contained in the Weimar constitution only that of the Rricl~~prarsicirrl tsurvived without alterations during the Nazi regime17
A further assumption of nineteenth-century liberalism which Schmitt sought to enervate was the institution of modern parliaments Ideally parliaments embody two principles vital for the government of civil society-discussion and publicity x These constitute the necessary preconditions of rational exchange of ideas and rational decision-making However the full expansion of market relationships during the nineteenth century affected parliamentary functions Disinterested rational debate was no longer possible and the clash of opinions gave way to a clash of irreconcilable interest^^ According to Schmitt it was at that point that parliaments became the instruments by which civil society attempted to control the state depriving it of its autonomy At the same time the democratic component of liberal democracy was meant to produce the politicization of civil society blurring the separation between civil society and the state and depriving parliaments of their monopoly over politics Deputies were bound to lose their traditional representative roles and to become more and more dependent on their electoral basis and on the parties to which they belonged Schmitt concluded that parliamentary governments such as the one defined by the Weimar constitution were doomed to fail The pluralistic tendencies proper to civil society robbed them of their capacity to decide and condemned them to endless discussion and indecision irrevocably torn by party positions and recalcitrant interest groups
25 Ibid 350 26 Ibid 351 27 Compare with Ernst Rudolf Huber Das Staatsoberhaupt des Deutschen Keiches
Z e i t s c ~ l ~ r ~ f i f i i e r 95 (1935) 203 die gesanlre Stacitsreclzt~c~issenscllqfi
28 Schmitt Die geist~sgesclziclztlic~eLuge des I7e11tigerz Purlnmet7tarismm (3rd ed Berlin Duncker amp Humblot 1961) and following pages
29 Ibid 9-10
Hayrk orld Schmirr o n tllc Riilr of Lnis 529
For these maladies Schmitt again advocated the role of a decisionist Rrichsprcrrsicicnt Only he could escape civil societys centrifugal pluralism and standing beyond partisan positions only he could unify the nation by holding the trust of the people as a whole The crucial ingredients in the script Schmitt was preparing for the Rcicllsprorsitlent were contained in art 48 of the Weimar constitution This article invested the Reic~llsprarsitlcntwith extraordinary dictatorial powers to face emergencies including the ability to decree measures that contravened the legally established order It was in this exceptional power that Schmitt saw the constitutive factor of what is defined as the normal situation Norms can only exist because the exceptional and abnormal have been taken care of
Most of those acquainted with Schmitts work have seen in liberalism his principal ideological adversary xO This indeed represents Schmitts own self-understanding I maintain though that this is not the case and that his attacks were directed against the democratic component in nineteenth-century liberalism particularly against the principle of popular sovereignty This comes to light with great clarity after 1933 when he was beginning to be proved right by historical events It is at this point that he began to expand on the limitations of dec i~ ionism~ Decisionism now appeared to him as one-sided as normativism in that it lacked the objectivity needed to legitimate a stable framework for continuous political action There was the danger he recognized in November 1933X2 that the urgencies of the present could obscure the tranquil being (das ruhende Sein) underlying a great political movement That tranquil being should be seen as preceding any movement It constitutes the ground on which stand both a normative state and a decisionist party Schmitts early Fichtean critique of the Kantian rule of law has receded leaving a space for a more moderate Hegelian compromise Hegel is definitely in Schmitts mind when he introduces the notion of concrete order This corresponds to the transcendentally tranquil being embracing both decisionism and normativism as their condition of possibility Immediately modelled on Harious theory of the institution this transcendental order I-emirids us
30 Georg Dahm review of Schmitts Lebtgtrdie Drei Arrcn des Rcc~lrt~tissrnsc~I~t~~ilicI~c~n Dc~trhorsin the citsc~irrififr~rr 95 (1935) 181 die grsrrmte Srtrtrrsrec~l~rsu~issrr~sc~lrqfi [Schmitts works] are from the start determinately aimed at weakening and abolishing the liberal Recirrs~rautand at superseding the legislative state Compare with Hayek Lan Legisluriorl trtrtl Libc~rty vol 1 Rrllrs trnd Order (Chicago University of Chicago Press 1971) 161 note 19 Leo Strauss Comments on Carl Schmitts L ) o Bcgr(fPdrs Pol i t isc~lr~~~i ( f r l l c Poirictrl 82in Tire Co~ri(gt[)r Mathias Schmitz Dic Frt~rrr~ci-F(~it~tl-TI~corit~Crrrl S(rtritt (Koeln amp Opladen Westdeutscher 1965) 127
31 Compare with Schwab T11c~ Clrrrllrr~gc~ o f E-ceptior 87 32 Schmitt Poirische Ti~eologie Preface 33 Schmitt Leher clic Drci Artrrl t l r ~ R c c ~ l r t ~ ~ t ~ i s s c ~ r ~ s c ~ I ~ t ~ f i I i ( ~ I ~ ~ ~ i ~DrtlXc~rs40-44
530 F R CRISTI
of Hegels ethical State According to Schmitt Hegels State is not merely the embodiment of sovereign decision nor the empty position of a norm of norms nor even the fluctuating scenario for alternating situations of emergency and stability Rather one should see in it the concrete order of orders the institution of institutions Neither the impc3rsonal rule of law nor the prrsor1~1measures of a sovereign can monopolize the political sphere Both have their transcendental condition of possibility in an already given sr(prapersona1 ~ r d e r ~
Hayek follows the views of those who think that Schmitts main adversary is liberalism in all its manifestations and that it is precisely this anti-liberal posture that accounts for his smooth conversion to National Socialism in 1933 This particular understanding of Schmitts legal and political theory determines for instance the brief but comprehensive critical account Hayek gives of it in his La Legisllrtion lint1 Liberty
[Schmitts] central belief as he finally formulated it is that from the normative thinking of the liberal tradition law has gradually advanced through a decisionist phase in which the will of the legislative authorities decided on particular matters to the conception of concrete order formation In other words law is not to consist of abstract rules which make possible the formation of a spontaneous order by the free action of individuals through limiting the range of their actions but is to be the instrument of arrangement o r organization by which the individual is made to serve concrete purposes This is the inevitable outcome of an intellectual development in which the self-ordering forces of society and the role of law in an ordering mechanism are no longer understood
34 Ibid 45-57 There is a certain ambiguity in Schmitts relation to Hegel apparently a product of a reference to the latter in his book Srcitrr Reuegetng ltnd LolX (Hamburg Hanseatische 1933) In it he states in connection with Hitlers being designated chancellor on January 30 1933 Accordingly one can say that on this day Hegel died Marcuse for instance stops here and does not read any further (Marcuse Ncgtr t iot i~[Boston Beacon 19671 275 note 79) Compare with Henning Ottmann I t~t l i~~i t l icc~m bc~i f fc qr l vol 1 (Berlin de Gruyter 1977) 222 n451)tintlGc~rrrc~insc~lrrfi The cont in~~at ion of the text though speaks for itself This does not mean that the great work of this German political philosopher has lost its significance and that the idea of a political leadership that transcends the egoism of social interests sho~lld be abandoned What is truly German and perennial of the powerful spiritual construction erected by Hegel c o n t i n ~ ~ e s (32) Again in to be valuable for the new formation 1935 Schmitt identifies his opposition to the rule of law or Rrc~ht~srtrtrras Hegelian The true antithesis to the Rrclrrsstrrrrr is not a Niclrr-Rrci~rtsrarrr but Hegels StttIiclrXritttrtrt (ethlcal state) See Schmitt Was bedeutet der Streit um den Rechtsstaat rircrr~fi f i ~ c ~ r 95 (1935) clic gcJscrmrr Sttrnr rc~c l~t t~t i cnt t~~t~f i
189-91 35 Schm~t t LPhrr die Drci Artc11 dc Rcc~lrt~~t~irorc~iri~filic~ire~~eDcnXc~l47 36 Ibid 13 37 Hayek Rolc5 titrtl O r t l o 71
Nrryek and Scllrnitt on the Rtlle q f L a u ) 531
Schmitts notion of concrete order formation is interpreted here as an arrangement resulting from the deliberations and conscious decisions of particular individuals In Hayeks own system this corresponds to what he describes as organizations and his conception of law as tllrsis as opposed to nornoc In this respect Schmitts notion of concrete order becomes the ideal vehicle for decisionism in so far as organizations and law as thesis presuppose the agency of personally active individuals Hayek though disregards the supra-personal nature that Schmitt ascribed to his notion of order and by means of which he intended to modify the one-sidedness of his earlier position This interpretation allows Hayek to defend adiametrically opposed conception of order He describes this as a system of abstract relations and interactions where abstract reason and not will becomes the dominant factor Reason simply contemplates the unfolding of a spontaneous natural order which is the result of an evolutionary process the spontaneous outcome ofcustoms and established practices not of human design I submit that Hayek misrepresents Schmitts notion of order as containing purely decisionist elements3R This misrepresentation is functional to his system of thought for it allows him to believe that a great distance separates him from Schmitt In like manner his own self-understanding tends to overlook the decisionist potential that lies dormant in his own conception of order In what follows I will make some general observations that should shorten the distance that Hayek intends to maintain between his own conception of order and that of Schmitt
In the first place I think that Schmitts expressed intention to move away from an exclusively decisionist phase in his thought should be taken seriously His earlier one-sided posture can be attributed to what he saw as an extraordinary weakening of the role of authority during the Weimar period and to h ~ s desire to enhance the role of the Rriclisprarsitlent This is why he came out so strongly against any attempt to water down and enervate the decisionist nature of art 48 After 1933 though when a decisionist course of action had finally prevailed and it appeared as if all crucial decisions had been taken by the Frrehrer Schmitt saw the need to consolidate the regime giving it a measure of stability A superior supra-personal standpoint transcending both decisionism and normativism appeared to him as the indispensable condition to help configure an objective framework that could mediate between state and civil society An important indicator of this attitude is Schmitts effort to move closer to Hegel In Hegels political philosophy he was able to see a form of decisionism that could
38 Schrnitts notion of concrete order surely contains decisionist elements (compare with the requirement of a in his Lthcr ciic D r r iF i i c l r r e x r i ~ r ~ t i ( ~ t i l r r c ~ r ~ tic Rltci i t ~ ~ ~ i ~ ~ c ~ ~ ~ c ~ l ~ t r i i l i c ~ I ~ ( ~ r ~ cannotDc11Xct7t63) Still this principle of leadership operate in a void It is in this latter sense that Schmitts notion of concrete order formation is supraper~onal
532 F R CRISTI
fit within a wider structure that could be contained organically side by side a normative order This explains why Hegels monarch does not strike us immediately as a decisionist figure He may appear to be dormant emptily adding his signature to decisions made by others But in times of emergency he will awake and the gates of his decisionist power will be flung open Hegels conservative monarch as the beginning and apex ofthe whole is his formula to arrest market societys self-destructive competitive race The State presided over by the monarch will not result from contractual arrangements but appears as already constituted as a substantive order predating the individual existence of its membersThis stands well with Schmitts conservative Catholicism That it does not contradict Hayeks contractarianism will be considered shortly
Second there are some decisionist elements visible in Hayeks apparently pure normativist approach He accepts without reservation a principle postulated by Schmitt in his writings namely that democracy and liberalism are logically unrelated answers to logically unrelated questions Hayek writes
Liberalism and democracy although compatible are not the same The difference is best seen if we consider theiropposites the opposite of liberalism is totalitarianism while the opposite of democracy is authoritarianism In conseqilence it is at least possible in principle that a democratic government may be totalitarian and that an authoritarian government may act on liberal principles That a liberal polity may be open to authoritarian rule does not appear contradictory to Hayek In agreement with Schmitt he too distinguishes sharply between civil society and the state The autonomy and independence reserved to the state is what grounds its authoritarian potential Hayek though appears to be explicitly opposed to what he sees as the growing predominance of central planning and proposes a merely negative role for the state The state should abstain from intervening in the affairs proper to civil society Correspondingly his notion of an abstract order presupposes civil societys capacity for self-regulation and confirms the dethronement of politics within that ~ p h e r e ~ Still the negative tasks ascribed to the state are determined and sustained by the action of the state itself It is thus positively and actively that the state restricts and limits its action to a mere1 y negative one so that the depoliticization of civil society turns dialectically into the states active preservation of its monopoly over the political as such
39 Compare with my article The Mitt( and Hegels Monarch f fcgc~lsc~rc folitictr1 TIr(~oi l l (1983) 601-22
30 Hayek Stitdic in Pliilosoplr Politic~c cltid Ecotlotric s 161 41 Hayek Lci~t L~~ ~ i t c t t i o t r trtrd Lil~crty vol 2 Tlrc Zlirtrqe cSocici Jiiticc (Chicago
The University o fch icago Press 197h) 102-03 Tlrc Politic (lIOrdcr(t o Pi(c Socicty 130 139-50
Hrryrk and Schmitt on rllr Rlrle c t f Lau 531
Whenever the normal working of civil society becomes in any iJagt imperilled so that its spontaneous order must be converted into an organization the knowledge of such a situation and the decision to alter the spontaneous order of civil society lie beyond its powers in so far as they are recognized as being of a political nature Hayek admits that the power to declare a state of emergency belongs to the state And it does not escape his attention that there is some plausibility in Schmitts contention that whoever has the power to proclaim an emergency and on this ground suspend any part of the constitution is the true ~overeign~ It appears as if Hayek has not been able to exorcise this ugly notion of sovereignty and that Bolingbrokes dictum-there must be an absolute unlimited and uncontroulable [sic] power lodged somewhere in every government43-would still be true Hayek offers a series of precautionary measures aimed at avoiding a relapse into an unbalanced decisionist posture I will not discuss at this point whether these measures are effective or not I will only say that decisionist elements are potentially incorporated into his system in so far as essential to it is the separation between state and civil society
Finally I think it is possible to show that this potential decisionism built into Hayeks system does not remain as a purely potential moment Behind the rule of law which abstractly rationally and objectively configures the institutions of government one should be able to see the actual decision to abide by such a rule And this decision finds its motivation and force not in the realm of pure rational law but in the obscure recesses of material civil society The rule of law is expressed by abstract general rules which regard all individuals as equal however unequal they may in fact be Its rationality can thus be taken as purely formal compatible with democratic methods4 but not with a Rousseauan democracy as the identity between rulers and ruled In fact as Hayek himself admits the order that sustains the rule of law is the product not of any rational design but of a process of evolution and natural selection an unintended product whose function we can learn to understand but whose present significance may be wholly different from
42 Hayek The Political Order qf a Free People 125 43 Bolingbroke The Idea qf a P(lrrior King S W Jackman (ed) (Indianapolis
Bobbs-Merrill 1965) 18 44 Joseph Raz has perceived the compatibility of the rule of law as Hayek understands
it with nondemocratic systems (The Rule of Law and its Virtue The L U M Qrarterly Re~ iet t 93 [1977] 196) A non-democratic legal system based on the denial of human rights on extensive poverty on racial segregation sexual inequalities and religious persecution may in principle conform to the requirements of the rule of law better than any of the legal systems of the more enlightened western democracies This does not mean that it will be better than those western democracies It will be an immeasurably worse legal system but it will excel in one respect in its conformity to the rule of law Compare with John Gray Hayek on Liberty Rights and Justice Ethics 92 (19811 77-78
534 F R CRISTI
the intention of its creator^ldquo^ This order though is not abstract and void but represents a particular class s t r ~ c t u r e ~ Some individuals will be better represented by it than others namely those individuals whom Hayek sees as belonging to groups which happen to have adopted rules conducive to a more effective order of action [and which] will tend to prevail over groups with a less effective order- This determines the constitution of natural ranks whose privileges and correlative disadvantages do not depend on the will of anybody in particular but should be seen as arising in a purely accidental fashion The rule of law that presides over this concrete and particular order of things is surely blind to its own particularity I see in this though more than just a natural blindness it is a disturbingly clear-sighted will and desire not to see
Hayeks political theory envisages an individualist view of human liberty and a contractarian view of society Yet he has appeared as a staunch defender of a social hierarchy which individuals are not free to choose How can he embrace these views without contradiction How can he be both liberal and conservative Just as Schmitt finds an answer to these queries in Hegels conservative-liberal political philosophy so Hayek traces his steps back to Hume the philosopher he admires most In Hume he is able to read the ideology of a liberal progressive aristocracy open to change innovation and industry In this respect the social hierarchy envisaged by Hume does not depend on anybodys particular merit or virtue So great is the uncertainty of merit both from its natural obscurity and from the self-conceit of each individual that no determinate rule of conduct could ever follow from it18 Individuals are allocated places in that hierarchy by chance and circumstance for instance by the accident of their natural birth The sovereignty of the people can then be replaced by the sovereignty of nature In this manner we are preserved from our selfishness and limited generosity Nature teaches us to accept the solidarity of subservience And it is this natural rank solidarity that preserves civil society from chaos and competitive anarchy A contemporary of Hume Samuel Johnson expressed the same when he told his friend Boswell Thus sir there would be a perpetual struggle for precedence were there no
45 Hayek TI( M i r t r ~ c of Socinl J~rst ice 79 36 A parallel objection is raised by Fraenkel against Schmitts notion of concrete order
(Tlic Drrtrl State 145) The problem of the concrete theory of order transcends the limits of the system of concrete communities This problem demands solution by decisionism and since there is no norm this decision-to employ Schmitts terminology-must be derived from a void In reality however this void is not advoid at all It is the value system associated with the class structure ofpresent-day society
47 Hayek Tlic Mirtrgc~ oSocitrl J~fi t iccj 16 48 Hume An Inyrri Concrrnini tiic Iirinciplrc of MorciIs in H r l r n r ~Ecctr (London
George Routledge 1894) 422
fixed invariable rules for the distinction of rank which creqes PO
jealousy as it is allowed to be a c ~ i d e n t a l ~ ~
39 Boswell in Tlir Lifc ofScinii(c Jolrnso~i A Napier (ed ) vol I (London George Routledge 1892) 356 Compare with David Miller Hume and Possessive Individualiam his to^ i loiiticcil Tlror~glit 1 (1980) 277
Htrypk and Schmi f t on flle R l ~ l e cfLrr~t 527
rendered in English as totalitarian state This totalitarian state has more affinities with democracy than with liberalism It is not the result of the strengthened authority and autonomy of the classical liberal state but of its democratic weakening It is against this totalitarian state and against the neutralized liberal democratic state that precedes it that Schmitt advocates the total depoliticization of civil society and the total concentration of political power in an authoritarian state According to Schmitt this new state would survive only if it abandoned popular sovereignty as an assumption This was precisely the mission placed in the hands of the Reichsprctesid~nrHe should cease to be seen as a mere extension of civil society and should rise above it in dictatorial independence and autonomy His authoritarian rule would then signal the advent of a post-democratic state
A second assumption made by nineteenth-century liberalism was the acceptance of the pre-eminence of democratic legitimation over the monarchical principle-l Classical liberalism cannot be said to have been incompatible with the latter On the contrary the monarchical principle represented a viable institutional arrangement to preserve the separation between civil society and the state in so far as the monarch centralized and monopolized political matters Schmitt cleverly perceived that it would be impossible to assail this second assumption of nineteenth-century liberalism and to revive the monarchical principle Still he conceived of a way to dilute and adulterate popular sovereignty so as to render it ineffective Again he focussed his attention on the figure of the Reicl~sprarsidentIt is true that the Weimar constitution established that the R e i c ~ h s p r ~ e s i d e r ~ fwas to be elected popularly But such an election could be interpreted as something different from a democratic election It could be seen as a plebiscitarian acclamation in which certain external formalities of the democratic process were respected but its participatory content denied
[The Reic~lrspvricsidc~17tJis ideally thought of as the man who unifies in himself the trust of the people as a whole beyond the limits of party organization and
programmatic title Starker Staat und gesunde Wirtschaft Heinz 0 Ziegler in a work that owes much to Schmitt draws the distinction between totalitarianism and authoritarianism (Allroritrrerrr odrr fi~ttrlc~r Stnrlt [Tuebingen Mohr 19321) This distinction c o n s t i t ~ ~ t e s the basis for later discussions of this subject Ultimately what Marcuse Fraenkel Neumann Talmon Hayek Popper Friedrich Brzezinski Arendt Barber and Kirkpatrick have to say on this matter is tributary to Schmitt s pioneer work It is interesting to note that Schmitt s distinction between qualitative and q~~ant i t a t ive totalitarianism turns authoritarianism into a variant of the totalitarian state (Starker Staat und gesunde Wirtschaft 84) Compare with Lc~cllitcict trrrcl Lcgitimitrrcr (Muenchen and Leipzig Duncker amp Humblot 1932) 93 and with Schwab Tire Clrtrllcngr c x f E~cepriot~14-46
22 Schmitt Lcgcllirclcr trtrcl Le~irinlircrer 96 Compare with Hayek Tlrr Poliricii1 01clcr ottr Fwe People 195
23 Ibid 93 24 Schmitt 1 2 r ~ c ~ s s ~ ~ t ~ y s l ~ ~ l ~ r c ~ 90-91
528 F R CRISTI
party bureaucracies He is able to do this as the man in whom the whole of the people have placed their trust and not as the member of a political party The election of the Rcichsprclcsident is more than any ordinary democratic election It is the grandiose acclamation of the German people j
The people acclaiming the Rrichsprcie~idrntact as an unorganized mass of electors incapable of deciding on the substantive issues concerning them The people select their leaders in order that they may govern They do not themselves continuously decide on the leaders difficulties and their differences of pinion^ A strong independent leadership is implied strong enough to impose the necessary depoliticization of civil society and prevent its total democratic politicization Still one i 4 bound to ask why a total depoliticization of civil society would be less totalitarian than its total politicization Is it a coincidence that of all the institutions contained in the Weimar constitution only that of the Rricl~~prarsicirrl tsurvived without alterations during the Nazi regime17
A further assumption of nineteenth-century liberalism which Schmitt sought to enervate was the institution of modern parliaments Ideally parliaments embody two principles vital for the government of civil society-discussion and publicity x These constitute the necessary preconditions of rational exchange of ideas and rational decision-making However the full expansion of market relationships during the nineteenth century affected parliamentary functions Disinterested rational debate was no longer possible and the clash of opinions gave way to a clash of irreconcilable interest^^ According to Schmitt it was at that point that parliaments became the instruments by which civil society attempted to control the state depriving it of its autonomy At the same time the democratic component of liberal democracy was meant to produce the politicization of civil society blurring the separation between civil society and the state and depriving parliaments of their monopoly over politics Deputies were bound to lose their traditional representative roles and to become more and more dependent on their electoral basis and on the parties to which they belonged Schmitt concluded that parliamentary governments such as the one defined by the Weimar constitution were doomed to fail The pluralistic tendencies proper to civil society robbed them of their capacity to decide and condemned them to endless discussion and indecision irrevocably torn by party positions and recalcitrant interest groups
25 Ibid 350 26 Ibid 351 27 Compare with Ernst Rudolf Huber Das Staatsoberhaupt des Deutschen Keiches
Z e i t s c ~ l ~ r ~ f i f i i e r 95 (1935) 203 die gesanlre Stacitsreclzt~c~issenscllqfi
28 Schmitt Die geist~sgesclziclztlic~eLuge des I7e11tigerz Purlnmet7tarismm (3rd ed Berlin Duncker amp Humblot 1961) and following pages
29 Ibid 9-10
Hayrk orld Schmirr o n tllc Riilr of Lnis 529
For these maladies Schmitt again advocated the role of a decisionist Rrichsprcrrsicicnt Only he could escape civil societys centrifugal pluralism and standing beyond partisan positions only he could unify the nation by holding the trust of the people as a whole The crucial ingredients in the script Schmitt was preparing for the Rcicllsprorsitlent were contained in art 48 of the Weimar constitution This article invested the Reic~llsprarsitlcntwith extraordinary dictatorial powers to face emergencies including the ability to decree measures that contravened the legally established order It was in this exceptional power that Schmitt saw the constitutive factor of what is defined as the normal situation Norms can only exist because the exceptional and abnormal have been taken care of
Most of those acquainted with Schmitts work have seen in liberalism his principal ideological adversary xO This indeed represents Schmitts own self-understanding I maintain though that this is not the case and that his attacks were directed against the democratic component in nineteenth-century liberalism particularly against the principle of popular sovereignty This comes to light with great clarity after 1933 when he was beginning to be proved right by historical events It is at this point that he began to expand on the limitations of dec i~ ionism~ Decisionism now appeared to him as one-sided as normativism in that it lacked the objectivity needed to legitimate a stable framework for continuous political action There was the danger he recognized in November 1933X2 that the urgencies of the present could obscure the tranquil being (das ruhende Sein) underlying a great political movement That tranquil being should be seen as preceding any movement It constitutes the ground on which stand both a normative state and a decisionist party Schmitts early Fichtean critique of the Kantian rule of law has receded leaving a space for a more moderate Hegelian compromise Hegel is definitely in Schmitts mind when he introduces the notion of concrete order This corresponds to the transcendentally tranquil being embracing both decisionism and normativism as their condition of possibility Immediately modelled on Harious theory of the institution this transcendental order I-emirids us
30 Georg Dahm review of Schmitts Lebtgtrdie Drei Arrcn des Rcc~lrt~tissrnsc~I~t~~ilicI~c~n Dc~trhorsin the citsc~irrififr~rr 95 (1935) 181 die grsrrmte Srtrtrrsrec~l~rsu~issrr~sc~lrqfi [Schmitts works] are from the start determinately aimed at weakening and abolishing the liberal Recirrs~rautand at superseding the legislative state Compare with Hayek Lan Legisluriorl trtrtl Libc~rty vol 1 Rrllrs trnd Order (Chicago University of Chicago Press 1971) 161 note 19 Leo Strauss Comments on Carl Schmitts L ) o Bcgr(fPdrs Pol i t isc~lr~~~i ( f r l l c Poirictrl 82in Tire Co~ri(gt[)r Mathias Schmitz Dic Frt~rrr~ci-F(~it~tl-TI~corit~Crrrl S(rtritt (Koeln amp Opladen Westdeutscher 1965) 127
31 Compare with Schwab T11c~ Clrrrllrr~gc~ o f E-ceptior 87 32 Schmitt Poirische Ti~eologie Preface 33 Schmitt Leher clic Drci Artrrl t l r ~ R c c ~ l r t ~ ~ t ~ i s s c ~ r ~ s c ~ I ~ t ~ f i I i ( ~ I ~ ~ ~ i ~DrtlXc~rs40-44
530 F R CRISTI
of Hegels ethical State According to Schmitt Hegels State is not merely the embodiment of sovereign decision nor the empty position of a norm of norms nor even the fluctuating scenario for alternating situations of emergency and stability Rather one should see in it the concrete order of orders the institution of institutions Neither the impc3rsonal rule of law nor the prrsor1~1measures of a sovereign can monopolize the political sphere Both have their transcendental condition of possibility in an already given sr(prapersona1 ~ r d e r ~
Hayek follows the views of those who think that Schmitts main adversary is liberalism in all its manifestations and that it is precisely this anti-liberal posture that accounts for his smooth conversion to National Socialism in 1933 This particular understanding of Schmitts legal and political theory determines for instance the brief but comprehensive critical account Hayek gives of it in his La Legisllrtion lint1 Liberty
[Schmitts] central belief as he finally formulated it is that from the normative thinking of the liberal tradition law has gradually advanced through a decisionist phase in which the will of the legislative authorities decided on particular matters to the conception of concrete order formation In other words law is not to consist of abstract rules which make possible the formation of a spontaneous order by the free action of individuals through limiting the range of their actions but is to be the instrument of arrangement o r organization by which the individual is made to serve concrete purposes This is the inevitable outcome of an intellectual development in which the self-ordering forces of society and the role of law in an ordering mechanism are no longer understood
34 Ibid 45-57 There is a certain ambiguity in Schmitts relation to Hegel apparently a product of a reference to the latter in his book Srcitrr Reuegetng ltnd LolX (Hamburg Hanseatische 1933) In it he states in connection with Hitlers being designated chancellor on January 30 1933 Accordingly one can say that on this day Hegel died Marcuse for instance stops here and does not read any further (Marcuse Ncgtr t iot i~[Boston Beacon 19671 275 note 79) Compare with Henning Ottmann I t~t l i~~i t l icc~m bc~i f fc qr l vol 1 (Berlin de Gruyter 1977) 222 n451)tintlGc~rrrc~insc~lrrfi The cont in~~at ion of the text though speaks for itself This does not mean that the great work of this German political philosopher has lost its significance and that the idea of a political leadership that transcends the egoism of social interests sho~lld be abandoned What is truly German and perennial of the powerful spiritual construction erected by Hegel c o n t i n ~ ~ e s (32) Again in to be valuable for the new formation 1935 Schmitt identifies his opposition to the rule of law or Rrc~ht~srtrtrras Hegelian The true antithesis to the Rrclrrsstrrrrr is not a Niclrr-Rrci~rtsrarrr but Hegels StttIiclrXritttrtrt (ethlcal state) See Schmitt Was bedeutet der Streit um den Rechtsstaat rircrr~fi f i ~ c ~ r 95 (1935) clic gcJscrmrr Sttrnr rc~c l~t t~t i cnt t~~t~f i
189-91 35 Schm~t t LPhrr die Drci Artc11 dc Rcc~lrt~~t~irorc~iri~filic~ire~~eDcnXc~l47 36 Ibid 13 37 Hayek Rolc5 titrtl O r t l o 71
Nrryek and Scllrnitt on the Rtlle q f L a u ) 531
Schmitts notion of concrete order formation is interpreted here as an arrangement resulting from the deliberations and conscious decisions of particular individuals In Hayeks own system this corresponds to what he describes as organizations and his conception of law as tllrsis as opposed to nornoc In this respect Schmitts notion of concrete order becomes the ideal vehicle for decisionism in so far as organizations and law as thesis presuppose the agency of personally active individuals Hayek though disregards the supra-personal nature that Schmitt ascribed to his notion of order and by means of which he intended to modify the one-sidedness of his earlier position This interpretation allows Hayek to defend adiametrically opposed conception of order He describes this as a system of abstract relations and interactions where abstract reason and not will becomes the dominant factor Reason simply contemplates the unfolding of a spontaneous natural order which is the result of an evolutionary process the spontaneous outcome ofcustoms and established practices not of human design I submit that Hayek misrepresents Schmitts notion of order as containing purely decisionist elements3R This misrepresentation is functional to his system of thought for it allows him to believe that a great distance separates him from Schmitt In like manner his own self-understanding tends to overlook the decisionist potential that lies dormant in his own conception of order In what follows I will make some general observations that should shorten the distance that Hayek intends to maintain between his own conception of order and that of Schmitt
In the first place I think that Schmitts expressed intention to move away from an exclusively decisionist phase in his thought should be taken seriously His earlier one-sided posture can be attributed to what he saw as an extraordinary weakening of the role of authority during the Weimar period and to h ~ s desire to enhance the role of the Rriclisprarsitlent This is why he came out so strongly against any attempt to water down and enervate the decisionist nature of art 48 After 1933 though when a decisionist course of action had finally prevailed and it appeared as if all crucial decisions had been taken by the Frrehrer Schmitt saw the need to consolidate the regime giving it a measure of stability A superior supra-personal standpoint transcending both decisionism and normativism appeared to him as the indispensable condition to help configure an objective framework that could mediate between state and civil society An important indicator of this attitude is Schmitts effort to move closer to Hegel In Hegels political philosophy he was able to see a form of decisionism that could
38 Schrnitts notion of concrete order surely contains decisionist elements (compare with the requirement of a in his Lthcr ciic D r r iF i i c l r r e x r i ~ r ~ t i ( ~ t i l r r c ~ r ~ tic Rltci i t ~ ~ ~ i ~ ~ c ~ ~ ~ c ~ l ~ t r i i l i c ~ I ~ ( ~ r ~ cannotDc11Xct7t63) Still this principle of leadership operate in a void It is in this latter sense that Schmitts notion of concrete order formation is supraper~onal
532 F R CRISTI
fit within a wider structure that could be contained organically side by side a normative order This explains why Hegels monarch does not strike us immediately as a decisionist figure He may appear to be dormant emptily adding his signature to decisions made by others But in times of emergency he will awake and the gates of his decisionist power will be flung open Hegels conservative monarch as the beginning and apex ofthe whole is his formula to arrest market societys self-destructive competitive race The State presided over by the monarch will not result from contractual arrangements but appears as already constituted as a substantive order predating the individual existence of its membersThis stands well with Schmitts conservative Catholicism That it does not contradict Hayeks contractarianism will be considered shortly
Second there are some decisionist elements visible in Hayeks apparently pure normativist approach He accepts without reservation a principle postulated by Schmitt in his writings namely that democracy and liberalism are logically unrelated answers to logically unrelated questions Hayek writes
Liberalism and democracy although compatible are not the same The difference is best seen if we consider theiropposites the opposite of liberalism is totalitarianism while the opposite of democracy is authoritarianism In conseqilence it is at least possible in principle that a democratic government may be totalitarian and that an authoritarian government may act on liberal principles That a liberal polity may be open to authoritarian rule does not appear contradictory to Hayek In agreement with Schmitt he too distinguishes sharply between civil society and the state The autonomy and independence reserved to the state is what grounds its authoritarian potential Hayek though appears to be explicitly opposed to what he sees as the growing predominance of central planning and proposes a merely negative role for the state The state should abstain from intervening in the affairs proper to civil society Correspondingly his notion of an abstract order presupposes civil societys capacity for self-regulation and confirms the dethronement of politics within that ~ p h e r e ~ Still the negative tasks ascribed to the state are determined and sustained by the action of the state itself It is thus positively and actively that the state restricts and limits its action to a mere1 y negative one so that the depoliticization of civil society turns dialectically into the states active preservation of its monopoly over the political as such
39 Compare with my article The Mitt( and Hegels Monarch f fcgc~lsc~rc folitictr1 TIr(~oi l l (1983) 601-22
30 Hayek Stitdic in Pliilosoplr Politic~c cltid Ecotlotric s 161 41 Hayek Lci~t L~~ ~ i t c t t i o t r trtrd Lil~crty vol 2 Tlrc Zlirtrqe cSocici Jiiticc (Chicago
The University o fch icago Press 197h) 102-03 Tlrc Politic (lIOrdcr(t o Pi(c Socicty 130 139-50
Hrryrk and Schmitt on rllr Rlrle c t f Lau 531
Whenever the normal working of civil society becomes in any iJagt imperilled so that its spontaneous order must be converted into an organization the knowledge of such a situation and the decision to alter the spontaneous order of civil society lie beyond its powers in so far as they are recognized as being of a political nature Hayek admits that the power to declare a state of emergency belongs to the state And it does not escape his attention that there is some plausibility in Schmitts contention that whoever has the power to proclaim an emergency and on this ground suspend any part of the constitution is the true ~overeign~ It appears as if Hayek has not been able to exorcise this ugly notion of sovereignty and that Bolingbrokes dictum-there must be an absolute unlimited and uncontroulable [sic] power lodged somewhere in every government43-would still be true Hayek offers a series of precautionary measures aimed at avoiding a relapse into an unbalanced decisionist posture I will not discuss at this point whether these measures are effective or not I will only say that decisionist elements are potentially incorporated into his system in so far as essential to it is the separation between state and civil society
Finally I think it is possible to show that this potential decisionism built into Hayeks system does not remain as a purely potential moment Behind the rule of law which abstractly rationally and objectively configures the institutions of government one should be able to see the actual decision to abide by such a rule And this decision finds its motivation and force not in the realm of pure rational law but in the obscure recesses of material civil society The rule of law is expressed by abstract general rules which regard all individuals as equal however unequal they may in fact be Its rationality can thus be taken as purely formal compatible with democratic methods4 but not with a Rousseauan democracy as the identity between rulers and ruled In fact as Hayek himself admits the order that sustains the rule of law is the product not of any rational design but of a process of evolution and natural selection an unintended product whose function we can learn to understand but whose present significance may be wholly different from
42 Hayek The Political Order qf a Free People 125 43 Bolingbroke The Idea qf a P(lrrior King S W Jackman (ed) (Indianapolis
Bobbs-Merrill 1965) 18 44 Joseph Raz has perceived the compatibility of the rule of law as Hayek understands
it with nondemocratic systems (The Rule of Law and its Virtue The L U M Qrarterly Re~ iet t 93 [1977] 196) A non-democratic legal system based on the denial of human rights on extensive poverty on racial segregation sexual inequalities and religious persecution may in principle conform to the requirements of the rule of law better than any of the legal systems of the more enlightened western democracies This does not mean that it will be better than those western democracies It will be an immeasurably worse legal system but it will excel in one respect in its conformity to the rule of law Compare with John Gray Hayek on Liberty Rights and Justice Ethics 92 (19811 77-78
534 F R CRISTI
the intention of its creator^ldquo^ This order though is not abstract and void but represents a particular class s t r ~ c t u r e ~ Some individuals will be better represented by it than others namely those individuals whom Hayek sees as belonging to groups which happen to have adopted rules conducive to a more effective order of action [and which] will tend to prevail over groups with a less effective order- This determines the constitution of natural ranks whose privileges and correlative disadvantages do not depend on the will of anybody in particular but should be seen as arising in a purely accidental fashion The rule of law that presides over this concrete and particular order of things is surely blind to its own particularity I see in this though more than just a natural blindness it is a disturbingly clear-sighted will and desire not to see
Hayeks political theory envisages an individualist view of human liberty and a contractarian view of society Yet he has appeared as a staunch defender of a social hierarchy which individuals are not free to choose How can he embrace these views without contradiction How can he be both liberal and conservative Just as Schmitt finds an answer to these queries in Hegels conservative-liberal political philosophy so Hayek traces his steps back to Hume the philosopher he admires most In Hume he is able to read the ideology of a liberal progressive aristocracy open to change innovation and industry In this respect the social hierarchy envisaged by Hume does not depend on anybodys particular merit or virtue So great is the uncertainty of merit both from its natural obscurity and from the self-conceit of each individual that no determinate rule of conduct could ever follow from it18 Individuals are allocated places in that hierarchy by chance and circumstance for instance by the accident of their natural birth The sovereignty of the people can then be replaced by the sovereignty of nature In this manner we are preserved from our selfishness and limited generosity Nature teaches us to accept the solidarity of subservience And it is this natural rank solidarity that preserves civil society from chaos and competitive anarchy A contemporary of Hume Samuel Johnson expressed the same when he told his friend Boswell Thus sir there would be a perpetual struggle for precedence were there no
45 Hayek TI( M i r t r ~ c of Socinl J~rst ice 79 36 A parallel objection is raised by Fraenkel against Schmitts notion of concrete order
(Tlic Drrtrl State 145) The problem of the concrete theory of order transcends the limits of the system of concrete communities This problem demands solution by decisionism and since there is no norm this decision-to employ Schmitts terminology-must be derived from a void In reality however this void is not advoid at all It is the value system associated with the class structure ofpresent-day society
47 Hayek Tlic Mirtrgc~ oSocitrl J~fi t iccj 16 48 Hume An Inyrri Concrrnini tiic Iirinciplrc of MorciIs in H r l r n r ~Ecctr (London
George Routledge 1894) 422
fixed invariable rules for the distinction of rank which creqes PO
jealousy as it is allowed to be a c ~ i d e n t a l ~ ~
39 Boswell in Tlir Lifc ofScinii(c Jolrnso~i A Napier (ed ) vol I (London George Routledge 1892) 356 Compare with David Miller Hume and Possessive Individualiam his to^ i loiiticcil Tlror~glit 1 (1980) 277
528 F R CRISTI
party bureaucracies He is able to do this as the man in whom the whole of the people have placed their trust and not as the member of a political party The election of the Rcichsprclcsident is more than any ordinary democratic election It is the grandiose acclamation of the German people j
The people acclaiming the Rrichsprcie~idrntact as an unorganized mass of electors incapable of deciding on the substantive issues concerning them The people select their leaders in order that they may govern They do not themselves continuously decide on the leaders difficulties and their differences of pinion^ A strong independent leadership is implied strong enough to impose the necessary depoliticization of civil society and prevent its total democratic politicization Still one i 4 bound to ask why a total depoliticization of civil society would be less totalitarian than its total politicization Is it a coincidence that of all the institutions contained in the Weimar constitution only that of the Rricl~~prarsicirrl tsurvived without alterations during the Nazi regime17
A further assumption of nineteenth-century liberalism which Schmitt sought to enervate was the institution of modern parliaments Ideally parliaments embody two principles vital for the government of civil society-discussion and publicity x These constitute the necessary preconditions of rational exchange of ideas and rational decision-making However the full expansion of market relationships during the nineteenth century affected parliamentary functions Disinterested rational debate was no longer possible and the clash of opinions gave way to a clash of irreconcilable interest^^ According to Schmitt it was at that point that parliaments became the instruments by which civil society attempted to control the state depriving it of its autonomy At the same time the democratic component of liberal democracy was meant to produce the politicization of civil society blurring the separation between civil society and the state and depriving parliaments of their monopoly over politics Deputies were bound to lose their traditional representative roles and to become more and more dependent on their electoral basis and on the parties to which they belonged Schmitt concluded that parliamentary governments such as the one defined by the Weimar constitution were doomed to fail The pluralistic tendencies proper to civil society robbed them of their capacity to decide and condemned them to endless discussion and indecision irrevocably torn by party positions and recalcitrant interest groups
25 Ibid 350 26 Ibid 351 27 Compare with Ernst Rudolf Huber Das Staatsoberhaupt des Deutschen Keiches
Z e i t s c ~ l ~ r ~ f i f i i e r 95 (1935) 203 die gesanlre Stacitsreclzt~c~issenscllqfi
28 Schmitt Die geist~sgesclziclztlic~eLuge des I7e11tigerz Purlnmet7tarismm (3rd ed Berlin Duncker amp Humblot 1961) and following pages
29 Ibid 9-10
Hayrk orld Schmirr o n tllc Riilr of Lnis 529
For these maladies Schmitt again advocated the role of a decisionist Rrichsprcrrsicicnt Only he could escape civil societys centrifugal pluralism and standing beyond partisan positions only he could unify the nation by holding the trust of the people as a whole The crucial ingredients in the script Schmitt was preparing for the Rcicllsprorsitlent were contained in art 48 of the Weimar constitution This article invested the Reic~llsprarsitlcntwith extraordinary dictatorial powers to face emergencies including the ability to decree measures that contravened the legally established order It was in this exceptional power that Schmitt saw the constitutive factor of what is defined as the normal situation Norms can only exist because the exceptional and abnormal have been taken care of
Most of those acquainted with Schmitts work have seen in liberalism his principal ideological adversary xO This indeed represents Schmitts own self-understanding I maintain though that this is not the case and that his attacks were directed against the democratic component in nineteenth-century liberalism particularly against the principle of popular sovereignty This comes to light with great clarity after 1933 when he was beginning to be proved right by historical events It is at this point that he began to expand on the limitations of dec i~ ionism~ Decisionism now appeared to him as one-sided as normativism in that it lacked the objectivity needed to legitimate a stable framework for continuous political action There was the danger he recognized in November 1933X2 that the urgencies of the present could obscure the tranquil being (das ruhende Sein) underlying a great political movement That tranquil being should be seen as preceding any movement It constitutes the ground on which stand both a normative state and a decisionist party Schmitts early Fichtean critique of the Kantian rule of law has receded leaving a space for a more moderate Hegelian compromise Hegel is definitely in Schmitts mind when he introduces the notion of concrete order This corresponds to the transcendentally tranquil being embracing both decisionism and normativism as their condition of possibility Immediately modelled on Harious theory of the institution this transcendental order I-emirids us
30 Georg Dahm review of Schmitts Lebtgtrdie Drei Arrcn des Rcc~lrt~tissrnsc~I~t~~ilicI~c~n Dc~trhorsin the citsc~irrififr~rr 95 (1935) 181 die grsrrmte Srtrtrrsrec~l~rsu~issrr~sc~lrqfi [Schmitts works] are from the start determinately aimed at weakening and abolishing the liberal Recirrs~rautand at superseding the legislative state Compare with Hayek Lan Legisluriorl trtrtl Libc~rty vol 1 Rrllrs trnd Order (Chicago University of Chicago Press 1971) 161 note 19 Leo Strauss Comments on Carl Schmitts L ) o Bcgr(fPdrs Pol i t isc~lr~~~i ( f r l l c Poirictrl 82in Tire Co~ri(gt[)r Mathias Schmitz Dic Frt~rrr~ci-F(~it~tl-TI~corit~Crrrl S(rtritt (Koeln amp Opladen Westdeutscher 1965) 127
31 Compare with Schwab T11c~ Clrrrllrr~gc~ o f E-ceptior 87 32 Schmitt Poirische Ti~eologie Preface 33 Schmitt Leher clic Drci Artrrl t l r ~ R c c ~ l r t ~ ~ t ~ i s s c ~ r ~ s c ~ I ~ t ~ f i I i ( ~ I ~ ~ ~ i ~DrtlXc~rs40-44
530 F R CRISTI
of Hegels ethical State According to Schmitt Hegels State is not merely the embodiment of sovereign decision nor the empty position of a norm of norms nor even the fluctuating scenario for alternating situations of emergency and stability Rather one should see in it the concrete order of orders the institution of institutions Neither the impc3rsonal rule of law nor the prrsor1~1measures of a sovereign can monopolize the political sphere Both have their transcendental condition of possibility in an already given sr(prapersona1 ~ r d e r ~
Hayek follows the views of those who think that Schmitts main adversary is liberalism in all its manifestations and that it is precisely this anti-liberal posture that accounts for his smooth conversion to National Socialism in 1933 This particular understanding of Schmitts legal and political theory determines for instance the brief but comprehensive critical account Hayek gives of it in his La Legisllrtion lint1 Liberty
[Schmitts] central belief as he finally formulated it is that from the normative thinking of the liberal tradition law has gradually advanced through a decisionist phase in which the will of the legislative authorities decided on particular matters to the conception of concrete order formation In other words law is not to consist of abstract rules which make possible the formation of a spontaneous order by the free action of individuals through limiting the range of their actions but is to be the instrument of arrangement o r organization by which the individual is made to serve concrete purposes This is the inevitable outcome of an intellectual development in which the self-ordering forces of society and the role of law in an ordering mechanism are no longer understood
34 Ibid 45-57 There is a certain ambiguity in Schmitts relation to Hegel apparently a product of a reference to the latter in his book Srcitrr Reuegetng ltnd LolX (Hamburg Hanseatische 1933) In it he states in connection with Hitlers being designated chancellor on January 30 1933 Accordingly one can say that on this day Hegel died Marcuse for instance stops here and does not read any further (Marcuse Ncgtr t iot i~[Boston Beacon 19671 275 note 79) Compare with Henning Ottmann I t~t l i~~i t l icc~m bc~i f fc qr l vol 1 (Berlin de Gruyter 1977) 222 n451)tintlGc~rrrc~insc~lrrfi The cont in~~at ion of the text though speaks for itself This does not mean that the great work of this German political philosopher has lost its significance and that the idea of a political leadership that transcends the egoism of social interests sho~lld be abandoned What is truly German and perennial of the powerful spiritual construction erected by Hegel c o n t i n ~ ~ e s (32) Again in to be valuable for the new formation 1935 Schmitt identifies his opposition to the rule of law or Rrc~ht~srtrtrras Hegelian The true antithesis to the Rrclrrsstrrrrr is not a Niclrr-Rrci~rtsrarrr but Hegels StttIiclrXritttrtrt (ethlcal state) See Schmitt Was bedeutet der Streit um den Rechtsstaat rircrr~fi f i ~ c ~ r 95 (1935) clic gcJscrmrr Sttrnr rc~c l~t t~t i cnt t~~t~f i
189-91 35 Schm~t t LPhrr die Drci Artc11 dc Rcc~lrt~~t~irorc~iri~filic~ire~~eDcnXc~l47 36 Ibid 13 37 Hayek Rolc5 titrtl O r t l o 71
Nrryek and Scllrnitt on the Rtlle q f L a u ) 531
Schmitts notion of concrete order formation is interpreted here as an arrangement resulting from the deliberations and conscious decisions of particular individuals In Hayeks own system this corresponds to what he describes as organizations and his conception of law as tllrsis as opposed to nornoc In this respect Schmitts notion of concrete order becomes the ideal vehicle for decisionism in so far as organizations and law as thesis presuppose the agency of personally active individuals Hayek though disregards the supra-personal nature that Schmitt ascribed to his notion of order and by means of which he intended to modify the one-sidedness of his earlier position This interpretation allows Hayek to defend adiametrically opposed conception of order He describes this as a system of abstract relations and interactions where abstract reason and not will becomes the dominant factor Reason simply contemplates the unfolding of a spontaneous natural order which is the result of an evolutionary process the spontaneous outcome ofcustoms and established practices not of human design I submit that Hayek misrepresents Schmitts notion of order as containing purely decisionist elements3R This misrepresentation is functional to his system of thought for it allows him to believe that a great distance separates him from Schmitt In like manner his own self-understanding tends to overlook the decisionist potential that lies dormant in his own conception of order In what follows I will make some general observations that should shorten the distance that Hayek intends to maintain between his own conception of order and that of Schmitt
In the first place I think that Schmitts expressed intention to move away from an exclusively decisionist phase in his thought should be taken seriously His earlier one-sided posture can be attributed to what he saw as an extraordinary weakening of the role of authority during the Weimar period and to h ~ s desire to enhance the role of the Rriclisprarsitlent This is why he came out so strongly against any attempt to water down and enervate the decisionist nature of art 48 After 1933 though when a decisionist course of action had finally prevailed and it appeared as if all crucial decisions had been taken by the Frrehrer Schmitt saw the need to consolidate the regime giving it a measure of stability A superior supra-personal standpoint transcending both decisionism and normativism appeared to him as the indispensable condition to help configure an objective framework that could mediate between state and civil society An important indicator of this attitude is Schmitts effort to move closer to Hegel In Hegels political philosophy he was able to see a form of decisionism that could
38 Schrnitts notion of concrete order surely contains decisionist elements (compare with the requirement of a in his Lthcr ciic D r r iF i i c l r r e x r i ~ r ~ t i ( ~ t i l r r c ~ r ~ tic Rltci i t ~ ~ ~ i ~ ~ c ~ ~ ~ c ~ l ~ t r i i l i c ~ I ~ ( ~ r ~ cannotDc11Xct7t63) Still this principle of leadership operate in a void It is in this latter sense that Schmitts notion of concrete order formation is supraper~onal
532 F R CRISTI
fit within a wider structure that could be contained organically side by side a normative order This explains why Hegels monarch does not strike us immediately as a decisionist figure He may appear to be dormant emptily adding his signature to decisions made by others But in times of emergency he will awake and the gates of his decisionist power will be flung open Hegels conservative monarch as the beginning and apex ofthe whole is his formula to arrest market societys self-destructive competitive race The State presided over by the monarch will not result from contractual arrangements but appears as already constituted as a substantive order predating the individual existence of its membersThis stands well with Schmitts conservative Catholicism That it does not contradict Hayeks contractarianism will be considered shortly
Second there are some decisionist elements visible in Hayeks apparently pure normativist approach He accepts without reservation a principle postulated by Schmitt in his writings namely that democracy and liberalism are logically unrelated answers to logically unrelated questions Hayek writes
Liberalism and democracy although compatible are not the same The difference is best seen if we consider theiropposites the opposite of liberalism is totalitarianism while the opposite of democracy is authoritarianism In conseqilence it is at least possible in principle that a democratic government may be totalitarian and that an authoritarian government may act on liberal principles That a liberal polity may be open to authoritarian rule does not appear contradictory to Hayek In agreement with Schmitt he too distinguishes sharply between civil society and the state The autonomy and independence reserved to the state is what grounds its authoritarian potential Hayek though appears to be explicitly opposed to what he sees as the growing predominance of central planning and proposes a merely negative role for the state The state should abstain from intervening in the affairs proper to civil society Correspondingly his notion of an abstract order presupposes civil societys capacity for self-regulation and confirms the dethronement of politics within that ~ p h e r e ~ Still the negative tasks ascribed to the state are determined and sustained by the action of the state itself It is thus positively and actively that the state restricts and limits its action to a mere1 y negative one so that the depoliticization of civil society turns dialectically into the states active preservation of its monopoly over the political as such
39 Compare with my article The Mitt( and Hegels Monarch f fcgc~lsc~rc folitictr1 TIr(~oi l l (1983) 601-22
30 Hayek Stitdic in Pliilosoplr Politic~c cltid Ecotlotric s 161 41 Hayek Lci~t L~~ ~ i t c t t i o t r trtrd Lil~crty vol 2 Tlrc Zlirtrqe cSocici Jiiticc (Chicago
The University o fch icago Press 197h) 102-03 Tlrc Politic (lIOrdcr(t o Pi(c Socicty 130 139-50
Hrryrk and Schmitt on rllr Rlrle c t f Lau 531
Whenever the normal working of civil society becomes in any iJagt imperilled so that its spontaneous order must be converted into an organization the knowledge of such a situation and the decision to alter the spontaneous order of civil society lie beyond its powers in so far as they are recognized as being of a political nature Hayek admits that the power to declare a state of emergency belongs to the state And it does not escape his attention that there is some plausibility in Schmitts contention that whoever has the power to proclaim an emergency and on this ground suspend any part of the constitution is the true ~overeign~ It appears as if Hayek has not been able to exorcise this ugly notion of sovereignty and that Bolingbrokes dictum-there must be an absolute unlimited and uncontroulable [sic] power lodged somewhere in every government43-would still be true Hayek offers a series of precautionary measures aimed at avoiding a relapse into an unbalanced decisionist posture I will not discuss at this point whether these measures are effective or not I will only say that decisionist elements are potentially incorporated into his system in so far as essential to it is the separation between state and civil society
Finally I think it is possible to show that this potential decisionism built into Hayeks system does not remain as a purely potential moment Behind the rule of law which abstractly rationally and objectively configures the institutions of government one should be able to see the actual decision to abide by such a rule And this decision finds its motivation and force not in the realm of pure rational law but in the obscure recesses of material civil society The rule of law is expressed by abstract general rules which regard all individuals as equal however unequal they may in fact be Its rationality can thus be taken as purely formal compatible with democratic methods4 but not with a Rousseauan democracy as the identity between rulers and ruled In fact as Hayek himself admits the order that sustains the rule of law is the product not of any rational design but of a process of evolution and natural selection an unintended product whose function we can learn to understand but whose present significance may be wholly different from
42 Hayek The Political Order qf a Free People 125 43 Bolingbroke The Idea qf a P(lrrior King S W Jackman (ed) (Indianapolis
Bobbs-Merrill 1965) 18 44 Joseph Raz has perceived the compatibility of the rule of law as Hayek understands
it with nondemocratic systems (The Rule of Law and its Virtue The L U M Qrarterly Re~ iet t 93 [1977] 196) A non-democratic legal system based on the denial of human rights on extensive poverty on racial segregation sexual inequalities and religious persecution may in principle conform to the requirements of the rule of law better than any of the legal systems of the more enlightened western democracies This does not mean that it will be better than those western democracies It will be an immeasurably worse legal system but it will excel in one respect in its conformity to the rule of law Compare with John Gray Hayek on Liberty Rights and Justice Ethics 92 (19811 77-78
534 F R CRISTI
the intention of its creator^ldquo^ This order though is not abstract and void but represents a particular class s t r ~ c t u r e ~ Some individuals will be better represented by it than others namely those individuals whom Hayek sees as belonging to groups which happen to have adopted rules conducive to a more effective order of action [and which] will tend to prevail over groups with a less effective order- This determines the constitution of natural ranks whose privileges and correlative disadvantages do not depend on the will of anybody in particular but should be seen as arising in a purely accidental fashion The rule of law that presides over this concrete and particular order of things is surely blind to its own particularity I see in this though more than just a natural blindness it is a disturbingly clear-sighted will and desire not to see
Hayeks political theory envisages an individualist view of human liberty and a contractarian view of society Yet he has appeared as a staunch defender of a social hierarchy which individuals are not free to choose How can he embrace these views without contradiction How can he be both liberal and conservative Just as Schmitt finds an answer to these queries in Hegels conservative-liberal political philosophy so Hayek traces his steps back to Hume the philosopher he admires most In Hume he is able to read the ideology of a liberal progressive aristocracy open to change innovation and industry In this respect the social hierarchy envisaged by Hume does not depend on anybodys particular merit or virtue So great is the uncertainty of merit both from its natural obscurity and from the self-conceit of each individual that no determinate rule of conduct could ever follow from it18 Individuals are allocated places in that hierarchy by chance and circumstance for instance by the accident of their natural birth The sovereignty of the people can then be replaced by the sovereignty of nature In this manner we are preserved from our selfishness and limited generosity Nature teaches us to accept the solidarity of subservience And it is this natural rank solidarity that preserves civil society from chaos and competitive anarchy A contemporary of Hume Samuel Johnson expressed the same when he told his friend Boswell Thus sir there would be a perpetual struggle for precedence were there no
45 Hayek TI( M i r t r ~ c of Socinl J~rst ice 79 36 A parallel objection is raised by Fraenkel against Schmitts notion of concrete order
(Tlic Drrtrl State 145) The problem of the concrete theory of order transcends the limits of the system of concrete communities This problem demands solution by decisionism and since there is no norm this decision-to employ Schmitts terminology-must be derived from a void In reality however this void is not advoid at all It is the value system associated with the class structure ofpresent-day society
47 Hayek Tlic Mirtrgc~ oSocitrl J~fi t iccj 16 48 Hume An Inyrri Concrrnini tiic Iirinciplrc of MorciIs in H r l r n r ~Ecctr (London
George Routledge 1894) 422
fixed invariable rules for the distinction of rank which creqes PO
jealousy as it is allowed to be a c ~ i d e n t a l ~ ~
39 Boswell in Tlir Lifc ofScinii(c Jolrnso~i A Napier (ed ) vol I (London George Routledge 1892) 356 Compare with David Miller Hume and Possessive Individualiam his to^ i loiiticcil Tlror~glit 1 (1980) 277
Hayrk orld Schmirr o n tllc Riilr of Lnis 529
For these maladies Schmitt again advocated the role of a decisionist Rrichsprcrrsicicnt Only he could escape civil societys centrifugal pluralism and standing beyond partisan positions only he could unify the nation by holding the trust of the people as a whole The crucial ingredients in the script Schmitt was preparing for the Rcicllsprorsitlent were contained in art 48 of the Weimar constitution This article invested the Reic~llsprarsitlcntwith extraordinary dictatorial powers to face emergencies including the ability to decree measures that contravened the legally established order It was in this exceptional power that Schmitt saw the constitutive factor of what is defined as the normal situation Norms can only exist because the exceptional and abnormal have been taken care of
Most of those acquainted with Schmitts work have seen in liberalism his principal ideological adversary xO This indeed represents Schmitts own self-understanding I maintain though that this is not the case and that his attacks were directed against the democratic component in nineteenth-century liberalism particularly against the principle of popular sovereignty This comes to light with great clarity after 1933 when he was beginning to be proved right by historical events It is at this point that he began to expand on the limitations of dec i~ ionism~ Decisionism now appeared to him as one-sided as normativism in that it lacked the objectivity needed to legitimate a stable framework for continuous political action There was the danger he recognized in November 1933X2 that the urgencies of the present could obscure the tranquil being (das ruhende Sein) underlying a great political movement That tranquil being should be seen as preceding any movement It constitutes the ground on which stand both a normative state and a decisionist party Schmitts early Fichtean critique of the Kantian rule of law has receded leaving a space for a more moderate Hegelian compromise Hegel is definitely in Schmitts mind when he introduces the notion of concrete order This corresponds to the transcendentally tranquil being embracing both decisionism and normativism as their condition of possibility Immediately modelled on Harious theory of the institution this transcendental order I-emirids us
30 Georg Dahm review of Schmitts Lebtgtrdie Drei Arrcn des Rcc~lrt~tissrnsc~I~t~~ilicI~c~n Dc~trhorsin the citsc~irrififr~rr 95 (1935) 181 die grsrrmte Srtrtrrsrec~l~rsu~issrr~sc~lrqfi [Schmitts works] are from the start determinately aimed at weakening and abolishing the liberal Recirrs~rautand at superseding the legislative state Compare with Hayek Lan Legisluriorl trtrtl Libc~rty vol 1 Rrllrs trnd Order (Chicago University of Chicago Press 1971) 161 note 19 Leo Strauss Comments on Carl Schmitts L ) o Bcgr(fPdrs Pol i t isc~lr~~~i ( f r l l c Poirictrl 82in Tire Co~ri(gt[)r Mathias Schmitz Dic Frt~rrr~ci-F(~it~tl-TI~corit~Crrrl S(rtritt (Koeln amp Opladen Westdeutscher 1965) 127
31 Compare with Schwab T11c~ Clrrrllrr~gc~ o f E-ceptior 87 32 Schmitt Poirische Ti~eologie Preface 33 Schmitt Leher clic Drci Artrrl t l r ~ R c c ~ l r t ~ ~ t ~ i s s c ~ r ~ s c ~ I ~ t ~ f i I i ( ~ I ~ ~ ~ i ~DrtlXc~rs40-44
530 F R CRISTI
of Hegels ethical State According to Schmitt Hegels State is not merely the embodiment of sovereign decision nor the empty position of a norm of norms nor even the fluctuating scenario for alternating situations of emergency and stability Rather one should see in it the concrete order of orders the institution of institutions Neither the impc3rsonal rule of law nor the prrsor1~1measures of a sovereign can monopolize the political sphere Both have their transcendental condition of possibility in an already given sr(prapersona1 ~ r d e r ~
Hayek follows the views of those who think that Schmitts main adversary is liberalism in all its manifestations and that it is precisely this anti-liberal posture that accounts for his smooth conversion to National Socialism in 1933 This particular understanding of Schmitts legal and political theory determines for instance the brief but comprehensive critical account Hayek gives of it in his La Legisllrtion lint1 Liberty
[Schmitts] central belief as he finally formulated it is that from the normative thinking of the liberal tradition law has gradually advanced through a decisionist phase in which the will of the legislative authorities decided on particular matters to the conception of concrete order formation In other words law is not to consist of abstract rules which make possible the formation of a spontaneous order by the free action of individuals through limiting the range of their actions but is to be the instrument of arrangement o r organization by which the individual is made to serve concrete purposes This is the inevitable outcome of an intellectual development in which the self-ordering forces of society and the role of law in an ordering mechanism are no longer understood
34 Ibid 45-57 There is a certain ambiguity in Schmitts relation to Hegel apparently a product of a reference to the latter in his book Srcitrr Reuegetng ltnd LolX (Hamburg Hanseatische 1933) In it he states in connection with Hitlers being designated chancellor on January 30 1933 Accordingly one can say that on this day Hegel died Marcuse for instance stops here and does not read any further (Marcuse Ncgtr t iot i~[Boston Beacon 19671 275 note 79) Compare with Henning Ottmann I t~t l i~~i t l icc~m bc~i f fc qr l vol 1 (Berlin de Gruyter 1977) 222 n451)tintlGc~rrrc~insc~lrrfi The cont in~~at ion of the text though speaks for itself This does not mean that the great work of this German political philosopher has lost its significance and that the idea of a political leadership that transcends the egoism of social interests sho~lld be abandoned What is truly German and perennial of the powerful spiritual construction erected by Hegel c o n t i n ~ ~ e s (32) Again in to be valuable for the new formation 1935 Schmitt identifies his opposition to the rule of law or Rrc~ht~srtrtrras Hegelian The true antithesis to the Rrclrrsstrrrrr is not a Niclrr-Rrci~rtsrarrr but Hegels StttIiclrXritttrtrt (ethlcal state) See Schmitt Was bedeutet der Streit um den Rechtsstaat rircrr~fi f i ~ c ~ r 95 (1935) clic gcJscrmrr Sttrnr rc~c l~t t~t i cnt t~~t~f i
189-91 35 Schm~t t LPhrr die Drci Artc11 dc Rcc~lrt~~t~irorc~iri~filic~ire~~eDcnXc~l47 36 Ibid 13 37 Hayek Rolc5 titrtl O r t l o 71
Nrryek and Scllrnitt on the Rtlle q f L a u ) 531
Schmitts notion of concrete order formation is interpreted here as an arrangement resulting from the deliberations and conscious decisions of particular individuals In Hayeks own system this corresponds to what he describes as organizations and his conception of law as tllrsis as opposed to nornoc In this respect Schmitts notion of concrete order becomes the ideal vehicle for decisionism in so far as organizations and law as thesis presuppose the agency of personally active individuals Hayek though disregards the supra-personal nature that Schmitt ascribed to his notion of order and by means of which he intended to modify the one-sidedness of his earlier position This interpretation allows Hayek to defend adiametrically opposed conception of order He describes this as a system of abstract relations and interactions where abstract reason and not will becomes the dominant factor Reason simply contemplates the unfolding of a spontaneous natural order which is the result of an evolutionary process the spontaneous outcome ofcustoms and established practices not of human design I submit that Hayek misrepresents Schmitts notion of order as containing purely decisionist elements3R This misrepresentation is functional to his system of thought for it allows him to believe that a great distance separates him from Schmitt In like manner his own self-understanding tends to overlook the decisionist potential that lies dormant in his own conception of order In what follows I will make some general observations that should shorten the distance that Hayek intends to maintain between his own conception of order and that of Schmitt
In the first place I think that Schmitts expressed intention to move away from an exclusively decisionist phase in his thought should be taken seriously His earlier one-sided posture can be attributed to what he saw as an extraordinary weakening of the role of authority during the Weimar period and to h ~ s desire to enhance the role of the Rriclisprarsitlent This is why he came out so strongly against any attempt to water down and enervate the decisionist nature of art 48 After 1933 though when a decisionist course of action had finally prevailed and it appeared as if all crucial decisions had been taken by the Frrehrer Schmitt saw the need to consolidate the regime giving it a measure of stability A superior supra-personal standpoint transcending both decisionism and normativism appeared to him as the indispensable condition to help configure an objective framework that could mediate between state and civil society An important indicator of this attitude is Schmitts effort to move closer to Hegel In Hegels political philosophy he was able to see a form of decisionism that could
38 Schrnitts notion of concrete order surely contains decisionist elements (compare with the requirement of a in his Lthcr ciic D r r iF i i c l r r e x r i ~ r ~ t i ( ~ t i l r r c ~ r ~ tic Rltci i t ~ ~ ~ i ~ ~ c ~ ~ ~ c ~ l ~ t r i i l i c ~ I ~ ( ~ r ~ cannotDc11Xct7t63) Still this principle of leadership operate in a void It is in this latter sense that Schmitts notion of concrete order formation is supraper~onal
532 F R CRISTI
fit within a wider structure that could be contained organically side by side a normative order This explains why Hegels monarch does not strike us immediately as a decisionist figure He may appear to be dormant emptily adding his signature to decisions made by others But in times of emergency he will awake and the gates of his decisionist power will be flung open Hegels conservative monarch as the beginning and apex ofthe whole is his formula to arrest market societys self-destructive competitive race The State presided over by the monarch will not result from contractual arrangements but appears as already constituted as a substantive order predating the individual existence of its membersThis stands well with Schmitts conservative Catholicism That it does not contradict Hayeks contractarianism will be considered shortly
Second there are some decisionist elements visible in Hayeks apparently pure normativist approach He accepts without reservation a principle postulated by Schmitt in his writings namely that democracy and liberalism are logically unrelated answers to logically unrelated questions Hayek writes
Liberalism and democracy although compatible are not the same The difference is best seen if we consider theiropposites the opposite of liberalism is totalitarianism while the opposite of democracy is authoritarianism In conseqilence it is at least possible in principle that a democratic government may be totalitarian and that an authoritarian government may act on liberal principles That a liberal polity may be open to authoritarian rule does not appear contradictory to Hayek In agreement with Schmitt he too distinguishes sharply between civil society and the state The autonomy and independence reserved to the state is what grounds its authoritarian potential Hayek though appears to be explicitly opposed to what he sees as the growing predominance of central planning and proposes a merely negative role for the state The state should abstain from intervening in the affairs proper to civil society Correspondingly his notion of an abstract order presupposes civil societys capacity for self-regulation and confirms the dethronement of politics within that ~ p h e r e ~ Still the negative tasks ascribed to the state are determined and sustained by the action of the state itself It is thus positively and actively that the state restricts and limits its action to a mere1 y negative one so that the depoliticization of civil society turns dialectically into the states active preservation of its monopoly over the political as such
39 Compare with my article The Mitt( and Hegels Monarch f fcgc~lsc~rc folitictr1 TIr(~oi l l (1983) 601-22
30 Hayek Stitdic in Pliilosoplr Politic~c cltid Ecotlotric s 161 41 Hayek Lci~t L~~ ~ i t c t t i o t r trtrd Lil~crty vol 2 Tlrc Zlirtrqe cSocici Jiiticc (Chicago
The University o fch icago Press 197h) 102-03 Tlrc Politic (lIOrdcr(t o Pi(c Socicty 130 139-50
Hrryrk and Schmitt on rllr Rlrle c t f Lau 531
Whenever the normal working of civil society becomes in any iJagt imperilled so that its spontaneous order must be converted into an organization the knowledge of such a situation and the decision to alter the spontaneous order of civil society lie beyond its powers in so far as they are recognized as being of a political nature Hayek admits that the power to declare a state of emergency belongs to the state And it does not escape his attention that there is some plausibility in Schmitts contention that whoever has the power to proclaim an emergency and on this ground suspend any part of the constitution is the true ~overeign~ It appears as if Hayek has not been able to exorcise this ugly notion of sovereignty and that Bolingbrokes dictum-there must be an absolute unlimited and uncontroulable [sic] power lodged somewhere in every government43-would still be true Hayek offers a series of precautionary measures aimed at avoiding a relapse into an unbalanced decisionist posture I will not discuss at this point whether these measures are effective or not I will only say that decisionist elements are potentially incorporated into his system in so far as essential to it is the separation between state and civil society
Finally I think it is possible to show that this potential decisionism built into Hayeks system does not remain as a purely potential moment Behind the rule of law which abstractly rationally and objectively configures the institutions of government one should be able to see the actual decision to abide by such a rule And this decision finds its motivation and force not in the realm of pure rational law but in the obscure recesses of material civil society The rule of law is expressed by abstract general rules which regard all individuals as equal however unequal they may in fact be Its rationality can thus be taken as purely formal compatible with democratic methods4 but not with a Rousseauan democracy as the identity between rulers and ruled In fact as Hayek himself admits the order that sustains the rule of law is the product not of any rational design but of a process of evolution and natural selection an unintended product whose function we can learn to understand but whose present significance may be wholly different from
42 Hayek The Political Order qf a Free People 125 43 Bolingbroke The Idea qf a P(lrrior King S W Jackman (ed) (Indianapolis
Bobbs-Merrill 1965) 18 44 Joseph Raz has perceived the compatibility of the rule of law as Hayek understands
it with nondemocratic systems (The Rule of Law and its Virtue The L U M Qrarterly Re~ iet t 93 [1977] 196) A non-democratic legal system based on the denial of human rights on extensive poverty on racial segregation sexual inequalities and religious persecution may in principle conform to the requirements of the rule of law better than any of the legal systems of the more enlightened western democracies This does not mean that it will be better than those western democracies It will be an immeasurably worse legal system but it will excel in one respect in its conformity to the rule of law Compare with John Gray Hayek on Liberty Rights and Justice Ethics 92 (19811 77-78
534 F R CRISTI
the intention of its creator^ldquo^ This order though is not abstract and void but represents a particular class s t r ~ c t u r e ~ Some individuals will be better represented by it than others namely those individuals whom Hayek sees as belonging to groups which happen to have adopted rules conducive to a more effective order of action [and which] will tend to prevail over groups with a less effective order- This determines the constitution of natural ranks whose privileges and correlative disadvantages do not depend on the will of anybody in particular but should be seen as arising in a purely accidental fashion The rule of law that presides over this concrete and particular order of things is surely blind to its own particularity I see in this though more than just a natural blindness it is a disturbingly clear-sighted will and desire not to see
Hayeks political theory envisages an individualist view of human liberty and a contractarian view of society Yet he has appeared as a staunch defender of a social hierarchy which individuals are not free to choose How can he embrace these views without contradiction How can he be both liberal and conservative Just as Schmitt finds an answer to these queries in Hegels conservative-liberal political philosophy so Hayek traces his steps back to Hume the philosopher he admires most In Hume he is able to read the ideology of a liberal progressive aristocracy open to change innovation and industry In this respect the social hierarchy envisaged by Hume does not depend on anybodys particular merit or virtue So great is the uncertainty of merit both from its natural obscurity and from the self-conceit of each individual that no determinate rule of conduct could ever follow from it18 Individuals are allocated places in that hierarchy by chance and circumstance for instance by the accident of their natural birth The sovereignty of the people can then be replaced by the sovereignty of nature In this manner we are preserved from our selfishness and limited generosity Nature teaches us to accept the solidarity of subservience And it is this natural rank solidarity that preserves civil society from chaos and competitive anarchy A contemporary of Hume Samuel Johnson expressed the same when he told his friend Boswell Thus sir there would be a perpetual struggle for precedence were there no
45 Hayek TI( M i r t r ~ c of Socinl J~rst ice 79 36 A parallel objection is raised by Fraenkel against Schmitts notion of concrete order
(Tlic Drrtrl State 145) The problem of the concrete theory of order transcends the limits of the system of concrete communities This problem demands solution by decisionism and since there is no norm this decision-to employ Schmitts terminology-must be derived from a void In reality however this void is not advoid at all It is the value system associated with the class structure ofpresent-day society
47 Hayek Tlic Mirtrgc~ oSocitrl J~fi t iccj 16 48 Hume An Inyrri Concrrnini tiic Iirinciplrc of MorciIs in H r l r n r ~Ecctr (London
George Routledge 1894) 422
fixed invariable rules for the distinction of rank which creqes PO
jealousy as it is allowed to be a c ~ i d e n t a l ~ ~
39 Boswell in Tlir Lifc ofScinii(c Jolrnso~i A Napier (ed ) vol I (London George Routledge 1892) 356 Compare with David Miller Hume and Possessive Individualiam his to^ i loiiticcil Tlror~glit 1 (1980) 277
530 F R CRISTI
of Hegels ethical State According to Schmitt Hegels State is not merely the embodiment of sovereign decision nor the empty position of a norm of norms nor even the fluctuating scenario for alternating situations of emergency and stability Rather one should see in it the concrete order of orders the institution of institutions Neither the impc3rsonal rule of law nor the prrsor1~1measures of a sovereign can monopolize the political sphere Both have their transcendental condition of possibility in an already given sr(prapersona1 ~ r d e r ~
Hayek follows the views of those who think that Schmitts main adversary is liberalism in all its manifestations and that it is precisely this anti-liberal posture that accounts for his smooth conversion to National Socialism in 1933 This particular understanding of Schmitts legal and political theory determines for instance the brief but comprehensive critical account Hayek gives of it in his La Legisllrtion lint1 Liberty
[Schmitts] central belief as he finally formulated it is that from the normative thinking of the liberal tradition law has gradually advanced through a decisionist phase in which the will of the legislative authorities decided on particular matters to the conception of concrete order formation In other words law is not to consist of abstract rules which make possible the formation of a spontaneous order by the free action of individuals through limiting the range of their actions but is to be the instrument of arrangement o r organization by which the individual is made to serve concrete purposes This is the inevitable outcome of an intellectual development in which the self-ordering forces of society and the role of law in an ordering mechanism are no longer understood
34 Ibid 45-57 There is a certain ambiguity in Schmitts relation to Hegel apparently a product of a reference to the latter in his book Srcitrr Reuegetng ltnd LolX (Hamburg Hanseatische 1933) In it he states in connection with Hitlers being designated chancellor on January 30 1933 Accordingly one can say that on this day Hegel died Marcuse for instance stops here and does not read any further (Marcuse Ncgtr t iot i~[Boston Beacon 19671 275 note 79) Compare with Henning Ottmann I t~t l i~~i t l icc~m bc~i f fc qr l vol 1 (Berlin de Gruyter 1977) 222 n451)tintlGc~rrrc~insc~lrrfi The cont in~~at ion of the text though speaks for itself This does not mean that the great work of this German political philosopher has lost its significance and that the idea of a political leadership that transcends the egoism of social interests sho~lld be abandoned What is truly German and perennial of the powerful spiritual construction erected by Hegel c o n t i n ~ ~ e s (32) Again in to be valuable for the new formation 1935 Schmitt identifies his opposition to the rule of law or Rrc~ht~srtrtrras Hegelian The true antithesis to the Rrclrrsstrrrrr is not a Niclrr-Rrci~rtsrarrr but Hegels StttIiclrXritttrtrt (ethlcal state) See Schmitt Was bedeutet der Streit um den Rechtsstaat rircrr~fi f i ~ c ~ r 95 (1935) clic gcJscrmrr Sttrnr rc~c l~t t~t i cnt t~~t~f i
189-91 35 Schm~t t LPhrr die Drci Artc11 dc Rcc~lrt~~t~irorc~iri~filic~ire~~eDcnXc~l47 36 Ibid 13 37 Hayek Rolc5 titrtl O r t l o 71
Nrryek and Scllrnitt on the Rtlle q f L a u ) 531
Schmitts notion of concrete order formation is interpreted here as an arrangement resulting from the deliberations and conscious decisions of particular individuals In Hayeks own system this corresponds to what he describes as organizations and his conception of law as tllrsis as opposed to nornoc In this respect Schmitts notion of concrete order becomes the ideal vehicle for decisionism in so far as organizations and law as thesis presuppose the agency of personally active individuals Hayek though disregards the supra-personal nature that Schmitt ascribed to his notion of order and by means of which he intended to modify the one-sidedness of his earlier position This interpretation allows Hayek to defend adiametrically opposed conception of order He describes this as a system of abstract relations and interactions where abstract reason and not will becomes the dominant factor Reason simply contemplates the unfolding of a spontaneous natural order which is the result of an evolutionary process the spontaneous outcome ofcustoms and established practices not of human design I submit that Hayek misrepresents Schmitts notion of order as containing purely decisionist elements3R This misrepresentation is functional to his system of thought for it allows him to believe that a great distance separates him from Schmitt In like manner his own self-understanding tends to overlook the decisionist potential that lies dormant in his own conception of order In what follows I will make some general observations that should shorten the distance that Hayek intends to maintain between his own conception of order and that of Schmitt
In the first place I think that Schmitts expressed intention to move away from an exclusively decisionist phase in his thought should be taken seriously His earlier one-sided posture can be attributed to what he saw as an extraordinary weakening of the role of authority during the Weimar period and to h ~ s desire to enhance the role of the Rriclisprarsitlent This is why he came out so strongly against any attempt to water down and enervate the decisionist nature of art 48 After 1933 though when a decisionist course of action had finally prevailed and it appeared as if all crucial decisions had been taken by the Frrehrer Schmitt saw the need to consolidate the regime giving it a measure of stability A superior supra-personal standpoint transcending both decisionism and normativism appeared to him as the indispensable condition to help configure an objective framework that could mediate between state and civil society An important indicator of this attitude is Schmitts effort to move closer to Hegel In Hegels political philosophy he was able to see a form of decisionism that could
38 Schrnitts notion of concrete order surely contains decisionist elements (compare with the requirement of a in his Lthcr ciic D r r iF i i c l r r e x r i ~ r ~ t i ( ~ t i l r r c ~ r ~ tic Rltci i t ~ ~ ~ i ~ ~ c ~ ~ ~ c ~ l ~ t r i i l i c ~ I ~ ( ~ r ~ cannotDc11Xct7t63) Still this principle of leadership operate in a void It is in this latter sense that Schmitts notion of concrete order formation is supraper~onal
532 F R CRISTI
fit within a wider structure that could be contained organically side by side a normative order This explains why Hegels monarch does not strike us immediately as a decisionist figure He may appear to be dormant emptily adding his signature to decisions made by others But in times of emergency he will awake and the gates of his decisionist power will be flung open Hegels conservative monarch as the beginning and apex ofthe whole is his formula to arrest market societys self-destructive competitive race The State presided over by the monarch will not result from contractual arrangements but appears as already constituted as a substantive order predating the individual existence of its membersThis stands well with Schmitts conservative Catholicism That it does not contradict Hayeks contractarianism will be considered shortly
Second there are some decisionist elements visible in Hayeks apparently pure normativist approach He accepts without reservation a principle postulated by Schmitt in his writings namely that democracy and liberalism are logically unrelated answers to logically unrelated questions Hayek writes
Liberalism and democracy although compatible are not the same The difference is best seen if we consider theiropposites the opposite of liberalism is totalitarianism while the opposite of democracy is authoritarianism In conseqilence it is at least possible in principle that a democratic government may be totalitarian and that an authoritarian government may act on liberal principles That a liberal polity may be open to authoritarian rule does not appear contradictory to Hayek In agreement with Schmitt he too distinguishes sharply between civil society and the state The autonomy and independence reserved to the state is what grounds its authoritarian potential Hayek though appears to be explicitly opposed to what he sees as the growing predominance of central planning and proposes a merely negative role for the state The state should abstain from intervening in the affairs proper to civil society Correspondingly his notion of an abstract order presupposes civil societys capacity for self-regulation and confirms the dethronement of politics within that ~ p h e r e ~ Still the negative tasks ascribed to the state are determined and sustained by the action of the state itself It is thus positively and actively that the state restricts and limits its action to a mere1 y negative one so that the depoliticization of civil society turns dialectically into the states active preservation of its monopoly over the political as such
39 Compare with my article The Mitt( and Hegels Monarch f fcgc~lsc~rc folitictr1 TIr(~oi l l (1983) 601-22
30 Hayek Stitdic in Pliilosoplr Politic~c cltid Ecotlotric s 161 41 Hayek Lci~t L~~ ~ i t c t t i o t r trtrd Lil~crty vol 2 Tlrc Zlirtrqe cSocici Jiiticc (Chicago
The University o fch icago Press 197h) 102-03 Tlrc Politic (lIOrdcr(t o Pi(c Socicty 130 139-50
Hrryrk and Schmitt on rllr Rlrle c t f Lau 531
Whenever the normal working of civil society becomes in any iJagt imperilled so that its spontaneous order must be converted into an organization the knowledge of such a situation and the decision to alter the spontaneous order of civil society lie beyond its powers in so far as they are recognized as being of a political nature Hayek admits that the power to declare a state of emergency belongs to the state And it does not escape his attention that there is some plausibility in Schmitts contention that whoever has the power to proclaim an emergency and on this ground suspend any part of the constitution is the true ~overeign~ It appears as if Hayek has not been able to exorcise this ugly notion of sovereignty and that Bolingbrokes dictum-there must be an absolute unlimited and uncontroulable [sic] power lodged somewhere in every government43-would still be true Hayek offers a series of precautionary measures aimed at avoiding a relapse into an unbalanced decisionist posture I will not discuss at this point whether these measures are effective or not I will only say that decisionist elements are potentially incorporated into his system in so far as essential to it is the separation between state and civil society
Finally I think it is possible to show that this potential decisionism built into Hayeks system does not remain as a purely potential moment Behind the rule of law which abstractly rationally and objectively configures the institutions of government one should be able to see the actual decision to abide by such a rule And this decision finds its motivation and force not in the realm of pure rational law but in the obscure recesses of material civil society The rule of law is expressed by abstract general rules which regard all individuals as equal however unequal they may in fact be Its rationality can thus be taken as purely formal compatible with democratic methods4 but not with a Rousseauan democracy as the identity between rulers and ruled In fact as Hayek himself admits the order that sustains the rule of law is the product not of any rational design but of a process of evolution and natural selection an unintended product whose function we can learn to understand but whose present significance may be wholly different from
42 Hayek The Political Order qf a Free People 125 43 Bolingbroke The Idea qf a P(lrrior King S W Jackman (ed) (Indianapolis
Bobbs-Merrill 1965) 18 44 Joseph Raz has perceived the compatibility of the rule of law as Hayek understands
it with nondemocratic systems (The Rule of Law and its Virtue The L U M Qrarterly Re~ iet t 93 [1977] 196) A non-democratic legal system based on the denial of human rights on extensive poverty on racial segregation sexual inequalities and religious persecution may in principle conform to the requirements of the rule of law better than any of the legal systems of the more enlightened western democracies This does not mean that it will be better than those western democracies It will be an immeasurably worse legal system but it will excel in one respect in its conformity to the rule of law Compare with John Gray Hayek on Liberty Rights and Justice Ethics 92 (19811 77-78
534 F R CRISTI
the intention of its creator^ldquo^ This order though is not abstract and void but represents a particular class s t r ~ c t u r e ~ Some individuals will be better represented by it than others namely those individuals whom Hayek sees as belonging to groups which happen to have adopted rules conducive to a more effective order of action [and which] will tend to prevail over groups with a less effective order- This determines the constitution of natural ranks whose privileges and correlative disadvantages do not depend on the will of anybody in particular but should be seen as arising in a purely accidental fashion The rule of law that presides over this concrete and particular order of things is surely blind to its own particularity I see in this though more than just a natural blindness it is a disturbingly clear-sighted will and desire not to see
Hayeks political theory envisages an individualist view of human liberty and a contractarian view of society Yet he has appeared as a staunch defender of a social hierarchy which individuals are not free to choose How can he embrace these views without contradiction How can he be both liberal and conservative Just as Schmitt finds an answer to these queries in Hegels conservative-liberal political philosophy so Hayek traces his steps back to Hume the philosopher he admires most In Hume he is able to read the ideology of a liberal progressive aristocracy open to change innovation and industry In this respect the social hierarchy envisaged by Hume does not depend on anybodys particular merit or virtue So great is the uncertainty of merit both from its natural obscurity and from the self-conceit of each individual that no determinate rule of conduct could ever follow from it18 Individuals are allocated places in that hierarchy by chance and circumstance for instance by the accident of their natural birth The sovereignty of the people can then be replaced by the sovereignty of nature In this manner we are preserved from our selfishness and limited generosity Nature teaches us to accept the solidarity of subservience And it is this natural rank solidarity that preserves civil society from chaos and competitive anarchy A contemporary of Hume Samuel Johnson expressed the same when he told his friend Boswell Thus sir there would be a perpetual struggle for precedence were there no
45 Hayek TI( M i r t r ~ c of Socinl J~rst ice 79 36 A parallel objection is raised by Fraenkel against Schmitts notion of concrete order
(Tlic Drrtrl State 145) The problem of the concrete theory of order transcends the limits of the system of concrete communities This problem demands solution by decisionism and since there is no norm this decision-to employ Schmitts terminology-must be derived from a void In reality however this void is not advoid at all It is the value system associated with the class structure ofpresent-day society
47 Hayek Tlic Mirtrgc~ oSocitrl J~fi t iccj 16 48 Hume An Inyrri Concrrnini tiic Iirinciplrc of MorciIs in H r l r n r ~Ecctr (London
George Routledge 1894) 422
fixed invariable rules for the distinction of rank which creqes PO
jealousy as it is allowed to be a c ~ i d e n t a l ~ ~
39 Boswell in Tlir Lifc ofScinii(c Jolrnso~i A Napier (ed ) vol I (London George Routledge 1892) 356 Compare with David Miller Hume and Possessive Individualiam his to^ i loiiticcil Tlror~glit 1 (1980) 277
Nrryek and Scllrnitt on the Rtlle q f L a u ) 531
Schmitts notion of concrete order formation is interpreted here as an arrangement resulting from the deliberations and conscious decisions of particular individuals In Hayeks own system this corresponds to what he describes as organizations and his conception of law as tllrsis as opposed to nornoc In this respect Schmitts notion of concrete order becomes the ideal vehicle for decisionism in so far as organizations and law as thesis presuppose the agency of personally active individuals Hayek though disregards the supra-personal nature that Schmitt ascribed to his notion of order and by means of which he intended to modify the one-sidedness of his earlier position This interpretation allows Hayek to defend adiametrically opposed conception of order He describes this as a system of abstract relations and interactions where abstract reason and not will becomes the dominant factor Reason simply contemplates the unfolding of a spontaneous natural order which is the result of an evolutionary process the spontaneous outcome ofcustoms and established practices not of human design I submit that Hayek misrepresents Schmitts notion of order as containing purely decisionist elements3R This misrepresentation is functional to his system of thought for it allows him to believe that a great distance separates him from Schmitt In like manner his own self-understanding tends to overlook the decisionist potential that lies dormant in his own conception of order In what follows I will make some general observations that should shorten the distance that Hayek intends to maintain between his own conception of order and that of Schmitt
In the first place I think that Schmitts expressed intention to move away from an exclusively decisionist phase in his thought should be taken seriously His earlier one-sided posture can be attributed to what he saw as an extraordinary weakening of the role of authority during the Weimar period and to h ~ s desire to enhance the role of the Rriclisprarsitlent This is why he came out so strongly against any attempt to water down and enervate the decisionist nature of art 48 After 1933 though when a decisionist course of action had finally prevailed and it appeared as if all crucial decisions had been taken by the Frrehrer Schmitt saw the need to consolidate the regime giving it a measure of stability A superior supra-personal standpoint transcending both decisionism and normativism appeared to him as the indispensable condition to help configure an objective framework that could mediate between state and civil society An important indicator of this attitude is Schmitts effort to move closer to Hegel In Hegels political philosophy he was able to see a form of decisionism that could
38 Schrnitts notion of concrete order surely contains decisionist elements (compare with the requirement of a in his Lthcr ciic D r r iF i i c l r r e x r i ~ r ~ t i ( ~ t i l r r c ~ r ~ tic Rltci i t ~ ~ ~ i ~ ~ c ~ ~ ~ c ~ l ~ t r i i l i c ~ I ~ ( ~ r ~ cannotDc11Xct7t63) Still this principle of leadership operate in a void It is in this latter sense that Schmitts notion of concrete order formation is supraper~onal
532 F R CRISTI
fit within a wider structure that could be contained organically side by side a normative order This explains why Hegels monarch does not strike us immediately as a decisionist figure He may appear to be dormant emptily adding his signature to decisions made by others But in times of emergency he will awake and the gates of his decisionist power will be flung open Hegels conservative monarch as the beginning and apex ofthe whole is his formula to arrest market societys self-destructive competitive race The State presided over by the monarch will not result from contractual arrangements but appears as already constituted as a substantive order predating the individual existence of its membersThis stands well with Schmitts conservative Catholicism That it does not contradict Hayeks contractarianism will be considered shortly
Second there are some decisionist elements visible in Hayeks apparently pure normativist approach He accepts without reservation a principle postulated by Schmitt in his writings namely that democracy and liberalism are logically unrelated answers to logically unrelated questions Hayek writes
Liberalism and democracy although compatible are not the same The difference is best seen if we consider theiropposites the opposite of liberalism is totalitarianism while the opposite of democracy is authoritarianism In conseqilence it is at least possible in principle that a democratic government may be totalitarian and that an authoritarian government may act on liberal principles That a liberal polity may be open to authoritarian rule does not appear contradictory to Hayek In agreement with Schmitt he too distinguishes sharply between civil society and the state The autonomy and independence reserved to the state is what grounds its authoritarian potential Hayek though appears to be explicitly opposed to what he sees as the growing predominance of central planning and proposes a merely negative role for the state The state should abstain from intervening in the affairs proper to civil society Correspondingly his notion of an abstract order presupposes civil societys capacity for self-regulation and confirms the dethronement of politics within that ~ p h e r e ~ Still the negative tasks ascribed to the state are determined and sustained by the action of the state itself It is thus positively and actively that the state restricts and limits its action to a mere1 y negative one so that the depoliticization of civil society turns dialectically into the states active preservation of its monopoly over the political as such
39 Compare with my article The Mitt( and Hegels Monarch f fcgc~lsc~rc folitictr1 TIr(~oi l l (1983) 601-22
30 Hayek Stitdic in Pliilosoplr Politic~c cltid Ecotlotric s 161 41 Hayek Lci~t L~~ ~ i t c t t i o t r trtrd Lil~crty vol 2 Tlrc Zlirtrqe cSocici Jiiticc (Chicago
The University o fch icago Press 197h) 102-03 Tlrc Politic (lIOrdcr(t o Pi(c Socicty 130 139-50
Hrryrk and Schmitt on rllr Rlrle c t f Lau 531
Whenever the normal working of civil society becomes in any iJagt imperilled so that its spontaneous order must be converted into an organization the knowledge of such a situation and the decision to alter the spontaneous order of civil society lie beyond its powers in so far as they are recognized as being of a political nature Hayek admits that the power to declare a state of emergency belongs to the state And it does not escape his attention that there is some plausibility in Schmitts contention that whoever has the power to proclaim an emergency and on this ground suspend any part of the constitution is the true ~overeign~ It appears as if Hayek has not been able to exorcise this ugly notion of sovereignty and that Bolingbrokes dictum-there must be an absolute unlimited and uncontroulable [sic] power lodged somewhere in every government43-would still be true Hayek offers a series of precautionary measures aimed at avoiding a relapse into an unbalanced decisionist posture I will not discuss at this point whether these measures are effective or not I will only say that decisionist elements are potentially incorporated into his system in so far as essential to it is the separation between state and civil society
Finally I think it is possible to show that this potential decisionism built into Hayeks system does not remain as a purely potential moment Behind the rule of law which abstractly rationally and objectively configures the institutions of government one should be able to see the actual decision to abide by such a rule And this decision finds its motivation and force not in the realm of pure rational law but in the obscure recesses of material civil society The rule of law is expressed by abstract general rules which regard all individuals as equal however unequal they may in fact be Its rationality can thus be taken as purely formal compatible with democratic methods4 but not with a Rousseauan democracy as the identity between rulers and ruled In fact as Hayek himself admits the order that sustains the rule of law is the product not of any rational design but of a process of evolution and natural selection an unintended product whose function we can learn to understand but whose present significance may be wholly different from
42 Hayek The Political Order qf a Free People 125 43 Bolingbroke The Idea qf a P(lrrior King S W Jackman (ed) (Indianapolis
Bobbs-Merrill 1965) 18 44 Joseph Raz has perceived the compatibility of the rule of law as Hayek understands
it with nondemocratic systems (The Rule of Law and its Virtue The L U M Qrarterly Re~ iet t 93 [1977] 196) A non-democratic legal system based on the denial of human rights on extensive poverty on racial segregation sexual inequalities and religious persecution may in principle conform to the requirements of the rule of law better than any of the legal systems of the more enlightened western democracies This does not mean that it will be better than those western democracies It will be an immeasurably worse legal system but it will excel in one respect in its conformity to the rule of law Compare with John Gray Hayek on Liberty Rights and Justice Ethics 92 (19811 77-78
534 F R CRISTI
the intention of its creator^ldquo^ This order though is not abstract and void but represents a particular class s t r ~ c t u r e ~ Some individuals will be better represented by it than others namely those individuals whom Hayek sees as belonging to groups which happen to have adopted rules conducive to a more effective order of action [and which] will tend to prevail over groups with a less effective order- This determines the constitution of natural ranks whose privileges and correlative disadvantages do not depend on the will of anybody in particular but should be seen as arising in a purely accidental fashion The rule of law that presides over this concrete and particular order of things is surely blind to its own particularity I see in this though more than just a natural blindness it is a disturbingly clear-sighted will and desire not to see
Hayeks political theory envisages an individualist view of human liberty and a contractarian view of society Yet he has appeared as a staunch defender of a social hierarchy which individuals are not free to choose How can he embrace these views without contradiction How can he be both liberal and conservative Just as Schmitt finds an answer to these queries in Hegels conservative-liberal political philosophy so Hayek traces his steps back to Hume the philosopher he admires most In Hume he is able to read the ideology of a liberal progressive aristocracy open to change innovation and industry In this respect the social hierarchy envisaged by Hume does not depend on anybodys particular merit or virtue So great is the uncertainty of merit both from its natural obscurity and from the self-conceit of each individual that no determinate rule of conduct could ever follow from it18 Individuals are allocated places in that hierarchy by chance and circumstance for instance by the accident of their natural birth The sovereignty of the people can then be replaced by the sovereignty of nature In this manner we are preserved from our selfishness and limited generosity Nature teaches us to accept the solidarity of subservience And it is this natural rank solidarity that preserves civil society from chaos and competitive anarchy A contemporary of Hume Samuel Johnson expressed the same when he told his friend Boswell Thus sir there would be a perpetual struggle for precedence were there no
45 Hayek TI( M i r t r ~ c of Socinl J~rst ice 79 36 A parallel objection is raised by Fraenkel against Schmitts notion of concrete order
(Tlic Drrtrl State 145) The problem of the concrete theory of order transcends the limits of the system of concrete communities This problem demands solution by decisionism and since there is no norm this decision-to employ Schmitts terminology-must be derived from a void In reality however this void is not advoid at all It is the value system associated with the class structure ofpresent-day society
47 Hayek Tlic Mirtrgc~ oSocitrl J~fi t iccj 16 48 Hume An Inyrri Concrrnini tiic Iirinciplrc of MorciIs in H r l r n r ~Ecctr (London
George Routledge 1894) 422
fixed invariable rules for the distinction of rank which creqes PO
jealousy as it is allowed to be a c ~ i d e n t a l ~ ~
39 Boswell in Tlir Lifc ofScinii(c Jolrnso~i A Napier (ed ) vol I (London George Routledge 1892) 356 Compare with David Miller Hume and Possessive Individualiam his to^ i loiiticcil Tlror~glit 1 (1980) 277
532 F R CRISTI
fit within a wider structure that could be contained organically side by side a normative order This explains why Hegels monarch does not strike us immediately as a decisionist figure He may appear to be dormant emptily adding his signature to decisions made by others But in times of emergency he will awake and the gates of his decisionist power will be flung open Hegels conservative monarch as the beginning and apex ofthe whole is his formula to arrest market societys self-destructive competitive race The State presided over by the monarch will not result from contractual arrangements but appears as already constituted as a substantive order predating the individual existence of its membersThis stands well with Schmitts conservative Catholicism That it does not contradict Hayeks contractarianism will be considered shortly
Second there are some decisionist elements visible in Hayeks apparently pure normativist approach He accepts without reservation a principle postulated by Schmitt in his writings namely that democracy and liberalism are logically unrelated answers to logically unrelated questions Hayek writes
Liberalism and democracy although compatible are not the same The difference is best seen if we consider theiropposites the opposite of liberalism is totalitarianism while the opposite of democracy is authoritarianism In conseqilence it is at least possible in principle that a democratic government may be totalitarian and that an authoritarian government may act on liberal principles That a liberal polity may be open to authoritarian rule does not appear contradictory to Hayek In agreement with Schmitt he too distinguishes sharply between civil society and the state The autonomy and independence reserved to the state is what grounds its authoritarian potential Hayek though appears to be explicitly opposed to what he sees as the growing predominance of central planning and proposes a merely negative role for the state The state should abstain from intervening in the affairs proper to civil society Correspondingly his notion of an abstract order presupposes civil societys capacity for self-regulation and confirms the dethronement of politics within that ~ p h e r e ~ Still the negative tasks ascribed to the state are determined and sustained by the action of the state itself It is thus positively and actively that the state restricts and limits its action to a mere1 y negative one so that the depoliticization of civil society turns dialectically into the states active preservation of its monopoly over the political as such
39 Compare with my article The Mitt( and Hegels Monarch f fcgc~lsc~rc folitictr1 TIr(~oi l l (1983) 601-22
30 Hayek Stitdic in Pliilosoplr Politic~c cltid Ecotlotric s 161 41 Hayek Lci~t L~~ ~ i t c t t i o t r trtrd Lil~crty vol 2 Tlrc Zlirtrqe cSocici Jiiticc (Chicago
The University o fch icago Press 197h) 102-03 Tlrc Politic (lIOrdcr(t o Pi(c Socicty 130 139-50
Hrryrk and Schmitt on rllr Rlrle c t f Lau 531
Whenever the normal working of civil society becomes in any iJagt imperilled so that its spontaneous order must be converted into an organization the knowledge of such a situation and the decision to alter the spontaneous order of civil society lie beyond its powers in so far as they are recognized as being of a political nature Hayek admits that the power to declare a state of emergency belongs to the state And it does not escape his attention that there is some plausibility in Schmitts contention that whoever has the power to proclaim an emergency and on this ground suspend any part of the constitution is the true ~overeign~ It appears as if Hayek has not been able to exorcise this ugly notion of sovereignty and that Bolingbrokes dictum-there must be an absolute unlimited and uncontroulable [sic] power lodged somewhere in every government43-would still be true Hayek offers a series of precautionary measures aimed at avoiding a relapse into an unbalanced decisionist posture I will not discuss at this point whether these measures are effective or not I will only say that decisionist elements are potentially incorporated into his system in so far as essential to it is the separation between state and civil society
Finally I think it is possible to show that this potential decisionism built into Hayeks system does not remain as a purely potential moment Behind the rule of law which abstractly rationally and objectively configures the institutions of government one should be able to see the actual decision to abide by such a rule And this decision finds its motivation and force not in the realm of pure rational law but in the obscure recesses of material civil society The rule of law is expressed by abstract general rules which regard all individuals as equal however unequal they may in fact be Its rationality can thus be taken as purely formal compatible with democratic methods4 but not with a Rousseauan democracy as the identity between rulers and ruled In fact as Hayek himself admits the order that sustains the rule of law is the product not of any rational design but of a process of evolution and natural selection an unintended product whose function we can learn to understand but whose present significance may be wholly different from
42 Hayek The Political Order qf a Free People 125 43 Bolingbroke The Idea qf a P(lrrior King S W Jackman (ed) (Indianapolis
Bobbs-Merrill 1965) 18 44 Joseph Raz has perceived the compatibility of the rule of law as Hayek understands
it with nondemocratic systems (The Rule of Law and its Virtue The L U M Qrarterly Re~ iet t 93 [1977] 196) A non-democratic legal system based on the denial of human rights on extensive poverty on racial segregation sexual inequalities and religious persecution may in principle conform to the requirements of the rule of law better than any of the legal systems of the more enlightened western democracies This does not mean that it will be better than those western democracies It will be an immeasurably worse legal system but it will excel in one respect in its conformity to the rule of law Compare with John Gray Hayek on Liberty Rights and Justice Ethics 92 (19811 77-78
534 F R CRISTI
the intention of its creator^ldquo^ This order though is not abstract and void but represents a particular class s t r ~ c t u r e ~ Some individuals will be better represented by it than others namely those individuals whom Hayek sees as belonging to groups which happen to have adopted rules conducive to a more effective order of action [and which] will tend to prevail over groups with a less effective order- This determines the constitution of natural ranks whose privileges and correlative disadvantages do not depend on the will of anybody in particular but should be seen as arising in a purely accidental fashion The rule of law that presides over this concrete and particular order of things is surely blind to its own particularity I see in this though more than just a natural blindness it is a disturbingly clear-sighted will and desire not to see
Hayeks political theory envisages an individualist view of human liberty and a contractarian view of society Yet he has appeared as a staunch defender of a social hierarchy which individuals are not free to choose How can he embrace these views without contradiction How can he be both liberal and conservative Just as Schmitt finds an answer to these queries in Hegels conservative-liberal political philosophy so Hayek traces his steps back to Hume the philosopher he admires most In Hume he is able to read the ideology of a liberal progressive aristocracy open to change innovation and industry In this respect the social hierarchy envisaged by Hume does not depend on anybodys particular merit or virtue So great is the uncertainty of merit both from its natural obscurity and from the self-conceit of each individual that no determinate rule of conduct could ever follow from it18 Individuals are allocated places in that hierarchy by chance and circumstance for instance by the accident of their natural birth The sovereignty of the people can then be replaced by the sovereignty of nature In this manner we are preserved from our selfishness and limited generosity Nature teaches us to accept the solidarity of subservience And it is this natural rank solidarity that preserves civil society from chaos and competitive anarchy A contemporary of Hume Samuel Johnson expressed the same when he told his friend Boswell Thus sir there would be a perpetual struggle for precedence were there no
45 Hayek TI( M i r t r ~ c of Socinl J~rst ice 79 36 A parallel objection is raised by Fraenkel against Schmitts notion of concrete order
(Tlic Drrtrl State 145) The problem of the concrete theory of order transcends the limits of the system of concrete communities This problem demands solution by decisionism and since there is no norm this decision-to employ Schmitts terminology-must be derived from a void In reality however this void is not advoid at all It is the value system associated with the class structure ofpresent-day society
47 Hayek Tlic Mirtrgc~ oSocitrl J~fi t iccj 16 48 Hume An Inyrri Concrrnini tiic Iirinciplrc of MorciIs in H r l r n r ~Ecctr (London
George Routledge 1894) 422
fixed invariable rules for the distinction of rank which creqes PO
jealousy as it is allowed to be a c ~ i d e n t a l ~ ~
39 Boswell in Tlir Lifc ofScinii(c Jolrnso~i A Napier (ed ) vol I (London George Routledge 1892) 356 Compare with David Miller Hume and Possessive Individualiam his to^ i loiiticcil Tlror~glit 1 (1980) 277
Hrryrk and Schmitt on rllr Rlrle c t f Lau 531
Whenever the normal working of civil society becomes in any iJagt imperilled so that its spontaneous order must be converted into an organization the knowledge of such a situation and the decision to alter the spontaneous order of civil society lie beyond its powers in so far as they are recognized as being of a political nature Hayek admits that the power to declare a state of emergency belongs to the state And it does not escape his attention that there is some plausibility in Schmitts contention that whoever has the power to proclaim an emergency and on this ground suspend any part of the constitution is the true ~overeign~ It appears as if Hayek has not been able to exorcise this ugly notion of sovereignty and that Bolingbrokes dictum-there must be an absolute unlimited and uncontroulable [sic] power lodged somewhere in every government43-would still be true Hayek offers a series of precautionary measures aimed at avoiding a relapse into an unbalanced decisionist posture I will not discuss at this point whether these measures are effective or not I will only say that decisionist elements are potentially incorporated into his system in so far as essential to it is the separation between state and civil society
Finally I think it is possible to show that this potential decisionism built into Hayeks system does not remain as a purely potential moment Behind the rule of law which abstractly rationally and objectively configures the institutions of government one should be able to see the actual decision to abide by such a rule And this decision finds its motivation and force not in the realm of pure rational law but in the obscure recesses of material civil society The rule of law is expressed by abstract general rules which regard all individuals as equal however unequal they may in fact be Its rationality can thus be taken as purely formal compatible with democratic methods4 but not with a Rousseauan democracy as the identity between rulers and ruled In fact as Hayek himself admits the order that sustains the rule of law is the product not of any rational design but of a process of evolution and natural selection an unintended product whose function we can learn to understand but whose present significance may be wholly different from
42 Hayek The Political Order qf a Free People 125 43 Bolingbroke The Idea qf a P(lrrior King S W Jackman (ed) (Indianapolis
Bobbs-Merrill 1965) 18 44 Joseph Raz has perceived the compatibility of the rule of law as Hayek understands
it with nondemocratic systems (The Rule of Law and its Virtue The L U M Qrarterly Re~ iet t 93 [1977] 196) A non-democratic legal system based on the denial of human rights on extensive poverty on racial segregation sexual inequalities and religious persecution may in principle conform to the requirements of the rule of law better than any of the legal systems of the more enlightened western democracies This does not mean that it will be better than those western democracies It will be an immeasurably worse legal system but it will excel in one respect in its conformity to the rule of law Compare with John Gray Hayek on Liberty Rights and Justice Ethics 92 (19811 77-78
534 F R CRISTI
the intention of its creator^ldquo^ This order though is not abstract and void but represents a particular class s t r ~ c t u r e ~ Some individuals will be better represented by it than others namely those individuals whom Hayek sees as belonging to groups which happen to have adopted rules conducive to a more effective order of action [and which] will tend to prevail over groups with a less effective order- This determines the constitution of natural ranks whose privileges and correlative disadvantages do not depend on the will of anybody in particular but should be seen as arising in a purely accidental fashion The rule of law that presides over this concrete and particular order of things is surely blind to its own particularity I see in this though more than just a natural blindness it is a disturbingly clear-sighted will and desire not to see
Hayeks political theory envisages an individualist view of human liberty and a contractarian view of society Yet he has appeared as a staunch defender of a social hierarchy which individuals are not free to choose How can he embrace these views without contradiction How can he be both liberal and conservative Just as Schmitt finds an answer to these queries in Hegels conservative-liberal political philosophy so Hayek traces his steps back to Hume the philosopher he admires most In Hume he is able to read the ideology of a liberal progressive aristocracy open to change innovation and industry In this respect the social hierarchy envisaged by Hume does not depend on anybodys particular merit or virtue So great is the uncertainty of merit both from its natural obscurity and from the self-conceit of each individual that no determinate rule of conduct could ever follow from it18 Individuals are allocated places in that hierarchy by chance and circumstance for instance by the accident of their natural birth The sovereignty of the people can then be replaced by the sovereignty of nature In this manner we are preserved from our selfishness and limited generosity Nature teaches us to accept the solidarity of subservience And it is this natural rank solidarity that preserves civil society from chaos and competitive anarchy A contemporary of Hume Samuel Johnson expressed the same when he told his friend Boswell Thus sir there would be a perpetual struggle for precedence were there no
45 Hayek TI( M i r t r ~ c of Socinl J~rst ice 79 36 A parallel objection is raised by Fraenkel against Schmitts notion of concrete order
(Tlic Drrtrl State 145) The problem of the concrete theory of order transcends the limits of the system of concrete communities This problem demands solution by decisionism and since there is no norm this decision-to employ Schmitts terminology-must be derived from a void In reality however this void is not advoid at all It is the value system associated with the class structure ofpresent-day society
47 Hayek Tlic Mirtrgc~ oSocitrl J~fi t iccj 16 48 Hume An Inyrri Concrrnini tiic Iirinciplrc of MorciIs in H r l r n r ~Ecctr (London
George Routledge 1894) 422
fixed invariable rules for the distinction of rank which creqes PO
jealousy as it is allowed to be a c ~ i d e n t a l ~ ~
39 Boswell in Tlir Lifc ofScinii(c Jolrnso~i A Napier (ed ) vol I (London George Routledge 1892) 356 Compare with David Miller Hume and Possessive Individualiam his to^ i loiiticcil Tlror~glit 1 (1980) 277
534 F R CRISTI
the intention of its creator^ldquo^ This order though is not abstract and void but represents a particular class s t r ~ c t u r e ~ Some individuals will be better represented by it than others namely those individuals whom Hayek sees as belonging to groups which happen to have adopted rules conducive to a more effective order of action [and which] will tend to prevail over groups with a less effective order- This determines the constitution of natural ranks whose privileges and correlative disadvantages do not depend on the will of anybody in particular but should be seen as arising in a purely accidental fashion The rule of law that presides over this concrete and particular order of things is surely blind to its own particularity I see in this though more than just a natural blindness it is a disturbingly clear-sighted will and desire not to see
Hayeks political theory envisages an individualist view of human liberty and a contractarian view of society Yet he has appeared as a staunch defender of a social hierarchy which individuals are not free to choose How can he embrace these views without contradiction How can he be both liberal and conservative Just as Schmitt finds an answer to these queries in Hegels conservative-liberal political philosophy so Hayek traces his steps back to Hume the philosopher he admires most In Hume he is able to read the ideology of a liberal progressive aristocracy open to change innovation and industry In this respect the social hierarchy envisaged by Hume does not depend on anybodys particular merit or virtue So great is the uncertainty of merit both from its natural obscurity and from the self-conceit of each individual that no determinate rule of conduct could ever follow from it18 Individuals are allocated places in that hierarchy by chance and circumstance for instance by the accident of their natural birth The sovereignty of the people can then be replaced by the sovereignty of nature In this manner we are preserved from our selfishness and limited generosity Nature teaches us to accept the solidarity of subservience And it is this natural rank solidarity that preserves civil society from chaos and competitive anarchy A contemporary of Hume Samuel Johnson expressed the same when he told his friend Boswell Thus sir there would be a perpetual struggle for precedence were there no
45 Hayek TI( M i r t r ~ c of Socinl J~rst ice 79 36 A parallel objection is raised by Fraenkel against Schmitts notion of concrete order
(Tlic Drrtrl State 145) The problem of the concrete theory of order transcends the limits of the system of concrete communities This problem demands solution by decisionism and since there is no norm this decision-to employ Schmitts terminology-must be derived from a void In reality however this void is not advoid at all It is the value system associated with the class structure ofpresent-day society
47 Hayek Tlic Mirtrgc~ oSocitrl J~fi t iccj 16 48 Hume An Inyrri Concrrnini tiic Iirinciplrc of MorciIs in H r l r n r ~Ecctr (London
George Routledge 1894) 422
fixed invariable rules for the distinction of rank which creqes PO
jealousy as it is allowed to be a c ~ i d e n t a l ~ ~
39 Boswell in Tlir Lifc ofScinii(c Jolrnso~i A Napier (ed ) vol I (London George Routledge 1892) 356 Compare with David Miller Hume and Possessive Individualiam his to^ i loiiticcil Tlror~glit 1 (1980) 277
fixed invariable rules for the distinction of rank which creqes PO
jealousy as it is allowed to be a c ~ i d e n t a l ~ ~
39 Boswell in Tlir Lifc ofScinii(c Jolrnso~i A Napier (ed ) vol I (London George Routledge 1892) 356 Compare with David Miller Hume and Possessive Individualiam his to^ i loiiticcil Tlror~glit 1 (1980) 277