Liberal constitutionalism and Schmitt's critique

History of Political Thought

Volumn 28, Issue 4, 2007, Pages 678-695

  Hampsher Monk, Iain ^b   Zimmerman, Keith ^a  

^a UNIVERSITY OF EXETER   (United Kingdom)

^b NONE

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EID: 38949208234     PISSN: 0143781X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (87)

1. As Tracy B. Strong points out, there is not even an entry for Schmitt in the 1987 Blackwell Encyclopaedia of Political Thought.
2. Major studies now include: George Balakrishnan, The Enemy: An Intellectual Portrait of Carl Schmitt (London, 2000);
3. J. Bendersky, Carl Schmitt: Theorist for the Reich (Princeton, 1983);
4. Renato Cristi, Carl Schmitt and Authoritarian Liberalism: Strong State, Free Economy (Aberystwyth, 1998);
5. Ellen Kennedy, Constitutional Failure: Carl Schmitt in Weimar (Durham NC, 2004);
6. John P. McCormick, Carl Schmitt's Critique of Liberalism (Cambridge, 1997);
7. Chantai Mouffe, The Challenge of Carl Schmitt (London, 1999);
8. J.-W. Muller, A Dangerous Mind: Carl Schmitt in Post-War European Thought (New Haven, 2003);
9. William E. Schueurman, Carl Schmitt: The End of Law (Lanham MD, 1999);
10. Jeffry Seitzer, Comparative History and Legal Theory: Carl Schmitt in the First German Democracy (Greenwood, 2001).
11. Schmitt's works available in English translation now include: The Concept of the Political, The Crisis of Parliamentary Democracy, Land and Sea, Legality and Legitimacy, Leviathan and State Theory, Political Romanticism, Political Theology, Roman Catholicism and Political Form, Theory of the Partisan.
12. Amongst these, The Concept of the Political, first translated, edited and introduced by George Schwab (Chicago and London, 1976) is now available in a new edition with an introduction by Tracy B. Strong, (Chicago and London, 1996).
13. Strong's edition outlines the aetiology and chronology of the recent revival. In Legality and Legitimacy, translated and edited by Jeffrey Seitzer, introduced by John P. McCormick (Durham NC and London, 2004), McCormick's introduction sketches the context in which Schmitt composed his work. A brief internet search also reveals translations and original studies in Danish, French, Spanish, Italian, Serbo-Croat etc. It should be said that neither of the current authors claim competence in German and we have been reliant on Schmitt in translation. Inasmuch as the topic addressed here is the way in which Schmitt's critique of the rule of law has been taken up by Anglophone critics of liberalism it has not seemed inappropriate to be addressing a 'Schmitt by translation figure' rather than having to reconstruct the original.
14. See the journal Telos which has maintained a long-standing if nervous interest in Schmitt: two issues given over almost wholly to Schmitt are no. 72, Carl Schmitt: Enemy or Foe, and no. 109, Carl Schmitt Now.
15. Recent studies which offer sophisticated contextualized readings of Schmitt's legal and political thought and a wide range of bibliographical references to the recent growth in Anglophone Schmitt scholarship are McCormick, Carl Schmitt's Critique of Liberalism
16. and Schueurman Carl Schmitt: The End of Law.
17. The authors sketch what such a substantive defence might look like in Part IV of the longer paper from which this is drawn: Hampsher-Monk and Zimmerman, 'Schmitt's Critique of Rule-of-Law Liberalism'.
18. We are not intending this to be a controversial term but only a catch-all for the tradition to which Schmitt addresses himself or against which his critiques might seem to apply.
19. This conception of liberty, as Quentin Skinner and Philip Pettit have been at pains to point out, is not uncontestable. It is Hobbes who seems to early formulate it most clearly, in claiming that the liberty of the subject 'consisteth in the Silence of the Lawe. In cases where the Soveragne has prescribed no rule, there the subject hathe liberty to do, or forbeare, according to his own discretion.' T. Hobbes, Leviathan, ed. E. Curley (Indianapolis, 1994), xxi, p. 113 (original pagination).
20. H.L.A. Hart, Concept of Law (Oxford, 1961).
21. For a classic formulation see F.A. Hayek, The Constitution of Liberty (Lonson, 1960), pp. 153 ff.
22. John Adams famously declared that the meaning of 'republic' was simply 'a government, in which all men, rich and poor, magistrates and subjects . . . are equally subject to the law'. John Adams, Defence of the Constitutions of Government of the United States of America, in Works (10 vols., Boston, 1850-6), Vol. V, p. 453.
23. Hayek, Constitution, p. 219;
24. see also F.A. Hayek, 'Principles of a Liberal Social Order', in F.A. Hayek, Studies in Philosophy, Politics and Economics (London, 1967), p. 167: 'the central contention of liberalism is . . . the enforcement of universal rules to just conduct . . . and that the coercive activities of Government should be limited to the enforcement of such rules'.
25. E.g. Montesquieu, de l'Esprit des Lois, ed. G. Truc (Paris, 1956),
26. Tome I, livre vi, eh. 3: 'Dans les Etats despotiques, il n'y a point de loi: le juge est lui-même sa règle. Dans les États monarchique, il y a une loi: et là où elle est précise, le juge la suit; là où elle n'est pas il en cherche l'esprit. Dans le gouvernement républicain il est de la nature de la constitution que les juges suivent la lettre de la loi.' By contrast J.G.A. Pocock has argued that the indeterminacy of linguistic meaning makes even the most command-based polity open to political contestation: J.G.A. Pocock, 'Verbalizing a Political Act: Towards a Politics of Language', Political Theory, I, pp. 27-45.
27. Staat Bewegung, Volk, 44-5, cited in Schuerman, Carl Schmitt: The End of Law, p. 265.
28. Montesquieu, De l'esprit des Lois, Tome I, livre xi, eh. 6: 'Mais les juges de la nation ne sont, comme nous l'avons dit, que la bouche qui prononce les paroles de la loi', and see ibid., XI, 6: 'les jugements . . . ne soient jamais qu'un texte precis de la loi. S'ils étaient une opinion particulière du juge, on vivrait dans la société sans savoir précisément les engagements que l'on y contracte.' See also VI, 3 ff. (cited in full in fn. 14 above): 'Dans le gouvernement républicain il est de la nature de la constitution que les juges suivent la lettre de la loi.' The discussion at this point is more nuanced than Schmitt allows.
29. Carl Schmitt, Political Theology (Cambridge MA, 1985), p. 30.
30. 'The legal idea cannot translate itself independently', ibid., p. 31.
31. Carl Schmitt, Der Wert des Staates, p. 79,
32. cited in McCormick, Schmitt's Critique of Liberalism, p. 220.
33. Hobbes, Leviathan, xxvi, 10, p. 139: 'all Laws, written and unwritten, have their Authority, and force from the Will of the Commonwealth; that is to say, from the Will of the Representative; which in a Monarchy is the Monarch'
34. ; and see further: Leviathan, xxvi, 20, 21.
35. Hans Kelsen, The Pure Theory of Law, trans. M. Knight (Berkeley CA, 1967)
36. and Hart, Concept of Law.
37. Schmitt, Political Theology, p. 29.
38. 'No norm, neither higher nor lower, interprets and administers, protects nor defends itself; no normative validity makes itself valid; and there is also . . . no hierarchy of norms but rather a hierarchy of men and instances.' Carl Schmitt, Legalität und Legitimität, p. 311 (cited in McCormick, Schmitt's Critique of Liberalism, p. 218).
39. On the useful concept of 'ruleness' see Fred Schauer, Playing by the Rules: An Analysis of Rule-Based Decision Making in Law and Life (Oxford, 1991).
40. Schmitt, Concept of the Political, ed. Schwab, p. 27.
41. Carl Schmitt, Verfassungslehre, 131
42. (cited in McCormick, Schmitt's Critique of Liberalism, p. 216).
43. Schmitt, Concept of the Political, ed. Schwab, pp. 26-8.
44. A Legal norm is 'valid if it is valid and because it is valid', Schmitt, Verfassungslehre, p. 9;
45. cited in Schueurman, Carl Schmitt: The End of Law, p. 64.
46. 'what characterises the exception is principally unlimited authority, which means the suspension of the entire existing order', Schmitt, Political Theology, p. 12.
47. Ibid., p. 6.
48. 'The exception appears in its absolute form when a situation in which legal prescriptions can be valid must first be brought about.' Ibid., pp. 6-7. There seem to be strong echoes here of Hegel's conception of the 'right of heroes', a right which applies against the absence of right in general - to found states to coerce barbarians (and students etc.),
49. G.W.F. Hegel, Philosophy of Right, §350. This in turn is formally similar to the Republican notion of the exceptionalism of 'founding' (see below).
50. Schmitt, Political Theology, p. 12.
51. Ibid., p. 15.
52. 'Sovereign is he who decides on the exception', ibid., pp. 5, 7, 9, etc.
53. Such interest comes from the Critical Legal Studies School (see, e.g., the review article by Roberto Ungar in Harvard Law Review, 96 ( 1983),
54. where such deconstructionism is construed as 'Leftist') but also from political postmodernists such as Chantai Mouffe, who writes that her contributors' 'interest in Schmitt comes from their conviction that through a discussion of his work we can get a better grasp of the deficiencies of the dominant liberal framework' (Mouffe, The Challenge of Carl Schmitt, p. 6).
55. The frisson-ridden preoccupation of the radical leftist journal Telos with Schmitt's work is revealing here, e.g. no. 72, Carl Schmitt: Enemy or Foe?.
56. 'The exception was something incommensurable to John Locke's doctrine of the constitutional state and the rationalist eighteenth century.' Schmitt, Political Theology, p. 13. It is difficult to identify who Schmitt thinks of as comprising the liberal tradition. Locke clearly is here,
57. Pufendorf, however, is seen as recognizing the exception ( ibid., p. 9).
58. John Locke, Two Treatises of Government, ed. P. Laslett (Cambridge, 1960), II, §134: 'The first and fundamental natural Law, which is to govern even the legislative it self, is the preservation of the Society . . . This Legislative is not only the supream power of the Commonwealth, but sacred and unalterable in the hands where the Community have once placed it.'
59. Ibid., §137 and passim in that para.
60. E.g. ibid., §89: 'this puts Men, outof a state of nature into that of a Commonwealth, by setting up a Judge on Earth, with Authority to determine all the controversies, and redress the Injuries . . . and wherever there are any number of Men however associated, that have no such decisive power to appeal to, there they are still in the state of Nature'.
61. Ibid., §124.
62. Ibid., §125.
63. Ibid., §160.
64. Ibid., §159: 'many things there are, which the Law can by no means provide for, and those must necessarily be left to the discretion of him, that has the Executive Power in his hands, to be ordered by him, as the public good and advantage shall require; nay 'tis fit that the Laws themselves should in some Cases give way to the Executive Power . . . many accidents may happen where a strict and rigid observation of the Laws may do harm'.
65. Ibid., §160.
66. Ibid., §159: 'the end of Government being the preservation of all'. Cf Schmitt: 'Sovereignty resides in . . . determining definitively what constitutes public order and security.' Schmitt, Political Theology, p. 9.
67. The 'constitutionalist' Locke's vigorous defence of prerogative is a frequently raised puzzle amongst scholars who see Locke as a paradigmatic representative of a somewhat hypostatized liberalism. For a recent essay in the genre and reference to the literature see Lee Ward, 'Locke on Executive Power and Liberal Constitutionalism', Canadian Journal of Political Science / Revue canadienne de science politique, 38 (3) (September 2005), pp. 719-44.
68. Locke, Two Treatises of Government, §226.
69. Ibid.: rebellion as response to War declared on people by delinquent rulers §226 ff. passim; delinquent kings as aggressors §232; specifically as enemy §229. Interestingly, much of this discussion specifically refers to cases where kings transfer their authority to a 'foreign nation', which is the paradigm case (that even Barclay allows) of being able to resist.
70. Nowadays this is hardly a controversial reading of Locke. However the modern study which transformed our view of Locke from abstract liberal philosopher into a theorist (and sometimes even an agent) of radical politics is Richard Ashcraft, Revolutionary Politics and Locke's Two Treatises of Government (Princeton, 1986).
71. 'Your privileges, though discontinued were not lost to memory. Your constitution, it is true, whilst were out of possession, suffered waste and dilapidation; but you possessed in some parts of the walls, and in all the foundations of a noble and venerable castle. You might have repaired those walls; you might have built on those old foundations. Your constitution was suspended before it was perfected; but you had the elements of a constitution very nearly as good as could be wished. You had all these advantages in your antient states but you chose to act as if you had never been moulded into civil society and had everything to begin anew. ' Edmund Burke, Reflections on the Revolution in France, ed. J.C.D. Clark (Stanford CA, 2001), p. 186 (original pagination: p. 50).
72. Two Letters on a Regicide Peace (1796),
73. Letter 1, in Writings and Speeches of Edmund Burke, Vol. IX, ed. R.B. McDowell (Oxford, 1991), pp. 250-1.
74. See the account by Iain Hampsher-Monk, 'Edmund Burke's Changing Justification for Intervention', Historical Journal, 48 (1) (2005), pp. 65-100.
75. Burke, Reflections on the Revolution in France, ed. Clarke, p. 170 (original pagination: p. 29).
76. Cicero, Pro Milone, IV, §§11-12: 'Silent enim leges, inter Arma'.
77. Burke, Reflections on the Revolution in France, ed. Clarke, p. 180 (original pagination: p. 43).
78. Ibid., p. 172 (original pagination: p. 31).
79. J.S. Mill, Considerations on Representative Government (London, 1910), pp. 197-8.
80. 'Liberal' is of course an anachronism when applied to any theory prior to the early nineteenth century. Late twentieth-century scholarship has established a clear distinction between proto-liberal and Republican traditions of theorizing (conceptual distinction is established, although its application is continually contested). Schmitt, however, seems to lump together 'republican' influenced theorists such as Montesquieu and proto liberals such as Locke.
81. 'The exceptional case has an especially decisive meaning which exposes the core of the matter . . . from this most extreme possibility human life derives its specifically political tensions.' Schmitt, Concept of the Political, ed. Schwab, p. 35.
82. On the conceptually innovatory aspects of founding see Keith Baker, Inventing the French Revolution (Cambridge, 1990);
83. Bonnie Honig, 'Declaring Independence: Arendt and Derrida on the Problem of Founding a Republic', American Political Science Review, 85 (1) (1999);
84. and I. Hampsher-Monk, 'Founding and Federation in Early Modern Republicanism', in Republican Founding, ed. H. Bödecker, C. Larrère and I. Comparato (Florence, forthcoming).
85. Machiavelli, Discourses, III, 1;
86. Jefferson to William S. Smith, 13 November 1787, in Papers of Jefferson, ed. J.P. Boyd (Princeton, 1950-), Vol. XII, p. 356,
87. cited in NobleCunningham Jr., In Pursuit of Reason: The Life of Thomas Jefferson (Baton Rouge LA and London, 1986), p. 116.