Carl Schmitt was, at least on the face of it, not a supporter of what he called, with reference to the Weimar Constitution, basic/fundamental rights (Grundrechte) or liberal rights (Freiheitsrechte). He saw these rights as weakening the state in favour of divisive private interests and thus as a-political. The a-political nature of human rights is in similar fashion being criticised today, with these rights being said to have been appropriated by an emerging empire in its collaboration with states, transnational bodies and global corporations, for its own disciplinary and bio-political ends.1 Human rights nonetheless remain in the spotlight today, because of mass migration, indefinite emergency rule, oppression and terrorism in its many guises and the unequal distribution of wealth. These issues, as well as the brutal violence perpetrated against animals, continue to raise questions as to the scope of entitlement, content and future of human rights.
A reflection on the foundations of human rights has been undertaken in many different ways. Schmitt’s analysis of fundamental rights in the modern liberal constitution does not at first sight appear to involve an enquiry into their foundations, but rather to be restricted to an analysis of how they find expression specifically in the Weimar Constitution. A closer look however reveals that Schmitt is indeed concerned here with the foundations of human rights, and he explores such foundations with reference to the two components of the modern liberal constitution, which he identifies in Constitutional Theory: (1) the rule-of-law component, which protects the freedom of the individual by way of the system of separation of powers; and (2) the political component where equality stands central. Freedom and equality are said to be different in respect of their presuppositions, their content and their operation (CT 256/VL 224).
The present chapter will proceed by first enquiring into the nature of freedom as it appears in Schmitt’s texts, specifically his analyses of freedom of expression and freedom of religion, both of which he regards as being originary in nature. In respect of freedom of opinion, its non-political and political dimensions are explored as well as what can be referred to as its ‘spectral’ dimension, the latter arising from Schmitt’s analysis of cinema in Constitutional Theory. The originary nature of religious rights comes to the fore in The Leviathan in the State Theory of Thomas Hobbes (1938), where Schmitt explores the Leviathan myth as a force of self-destruction incorporated within the concept of the state itself by Hobbes. At stake here is the right to freely choose a private religion, which, according to Schmitt, was subsequently exploited by Jewish authors to undermine the state. Through an exploration of Schmitt’s anti-Semitic remarks, we arrive at a different structure of freedom than the typical liberal conception thereof, in line with Derrida’s exploration of freedom in Rogues (2003) and For What Tomorrow (2001). In analysing equality, Schmitt insists on its political nature as well as the closely related need to first of all understand equality as presupposing an inequality, which makes possible the formation of the political unity and thus the possibility of distinguishing between friend and enemy. A structure similar to that of freedom appears when Schmitt carefully distinguishes his own ‘substantial’ conception of equality from the equality of everything that bears a human face, which he associates with meaninglessness, folly, evil and self-destruction. A certain ‘radicalisation’ of freedom and equality thus appears from Schmitt’s analysis, which no longer opposes equality and freedom in traditional fashion, but instead points to a certain unconditionality in both. Furthermore, although it mimics traditional approaches (such as natural law, theology and deontology) and more recent approaches (such as psychoanalysis) to the foundations of human rights, Schmitt’s ‘enquiry’ into these foundations cannot easily be categorised as falling strictly within the scope of any of these approaches.
The telos of the modern liberal constitution according to Schmitt is the protection of the sphere of freedom of the individual, which is believed to precede the state and to be in principle unlimited. Such freedom finds expression in the form of fundamental rights or liberal rights. State authority, on the other hand, is in principle limited in accordance with the principle of separation of powers, specifically insofar as interference with fundamental rights is concerned. The notion of unlimited freedom and the corresponding limitation of state powers find expression in what Schmitt refers to as the principle of distribution or allocation (Verteilungsprinzip) and as we saw above it gives expression to the un-political or rule-of-law component of the constitution.2 The state in this account is secondary, and its authority and tasks are derived from and determined by individual freedom (Schneider 1957: 104). Any limitation of such freedom would have to be authorised by legislation, thus by parliament (CT 213/VL 175–6). The motivating idea behind the protection of freedom in the modern constitution comes to the fore in The Concept of the Political where Schmitt refers to Hegel’s polemic-political definition of the liberal (des Bourgeois):
as a person [eines Menschen] who does not want to leave the apolitical riskless private sphere, who in the possession and in the justice of private ownership sets himself up as individual [einzelner] against the totality, who finds the substitute for his political nullity in the fruits of freedom and acquisition and above all ‘in the total security [Sicherheit] of the enjoyment thereof’, who consequently wants to be spared bravery and be exempted from the danger of a violent death.
(CoP 62/BdP 62)
In The Concept of the Political, Schmitt seeks to show that this liberal worldview is illusory.3 He does something similar in Constitutional Theory through his analysis of freedom rights or fundamental rights, to which we now turn.
Not all rights contained in the modern liberal constitution qualify as fundamental rights, only the so-called pre-and super-state rights, that is, those rights that are not granted by statute, but which are recognised and protected as preceding the state (CT 202). The state can interfere with these rights only to an extent that is in principle measureable and only in accordance with a regulated procedure. These fundamental rights do not pertain to legal objects, but to spheres of freedom, from which defensive rights are derived. This includes freedom of religion, personal freedom, property and the right to free expression (CT 202). In protecting these rights, the state finds the justification for its own existence (Existenzberechtigung) (CT 202/VL 164). Fundamental rights are thus only those that belong to the individual person according to the liberal idea (CT 203). Schmitt (CT 203) points out that because these rights precede the state they apply in respect of all human beings, irrespective of state citizenship. That is because these are individual rights, that is, rights of the isolated, individual human being (CT 203).
Schmitt (CT 203–4) nonetheless points out that the fundamental rights, or at least some of them, potentially contain a political component. These are rights of the individual that are held and exercised in collaboration with other individuals such as freedom of opinion, as well as freedom of speech and of the press, freedom of religion, freedom of assembly and freedom of association. They remain fundamental rights as long as ‘the individual does not leave the non-political condition of the mere social and only the individual’s [right to] free competition and discussion are recognised’ (CT 203/VL 165). They can quickly lose their non-political character and thus their character as individual freedom rights, along with the absoluteness of protection they are entitled to (CT 203–4/VL 165).4 Their status depends both on the actions of individuals and the way in which these rights find expression in a constitution. As soon as, for example, freedom of association leads to coalitions or associations which engage in battle against each other and oppose each other with specific social means of power such as labour strikes and exclusions from the workplace, the limit of the political has been reached and an individualistic fundamental or freedom right is no longer present (CT 204). Although derived from the right to freedom of association (Vereinigungsfreiheit), the right to form coalitions (Koalitionsrecht), the right to strike (Streikrecht) and work stoppage (Stillegungsrecht) are, according to Schmitt (CT 204/VL 165), not freedom rights in the sense of the liberal constitutional state. When a social group gains such possibilities for battle (Kampfmöglichkeiten), whether by means of constitutional provisions or toleration in practice, the basic presupposition of the liberal constitutional state has fallen away (ist entfallen) and ‘freedom’ then no longer means the in principle unlimited possibilities of action of the individual, but the unhindered exploitation of social power through social organisations (CT 204/VL 165–6).5 Although in essence freedom seeks to depoliticise, it at the same time heightens the risk of the dissolution of the state, either by way of civil war or the capture of the state by an undemocratic party seeking to abolish democracy.6
Freedom, in Schmitt’s analysis, can consequently be said to have a potential or perhaps even inherently political character. He nevertheless explicitly denies the principle of freedom any role in determining the state form. It cannot be the basis of democracy in the sense of self-rule because there is no necessary relation between the liberal insistence on freedom and democracy. Freedom can easily co-exist with monarchical rule (CT 256/VL 224–5). Yet Schmitt is very clear that what he says about freedom, that is, that it is a-political, only applies to freedom as it is understood in liberal thinking, not to freedom as such.7 This distinction within the concept of freedom itself is confirmed by Schmitt in the essay ‘Was bedeutet der Streit um den “Rechtsstaat” (1935)?’ where he notes that freedom cannot be captured by liberalism in every respect (and in this way de-politicised):
Words such as ‘right’ or ‘law’ [Recht] and freedom [Freiheit] have thousands of times been misused and desecrated [Schmitt is thinking here specifically of their understanding in the modern liberal state] and nonetheless remain pure and virginal [rein und jungfräulich], when a brave people seriously reflects on them.8
(Schmitt 1935a: 200)
Schmitt (CT 204) further points out that fundamental rights are all absolute rights. They are, in other words, in principle unlimited and any interference in respect of these rights by the state is viewed as an exception. The Weimar Constitution consequently distinguishes between rights which are absolute in principle (fundamental rights) and those which are relative from the start. The distinction between absolute and relative, and thus also between fundamental and other rights, however becomes difficult to draw, partly because of the manner of drafting of constitutional clauses and because of developments in technology (CT 204–7). Schmitt (CT 205/VL 166) draws his example here from what he refers to as ‘the most important societal freedom right [dem wichtichsten gesellschaftlichen Freiheitsrecht]’, the origin or source (Ursprung) of all other societal freedom rights, and the presupposition of the liberal idea of free discussion: the right to the free expression of opinion with its ‘consequences’ of freedom of speech and press freedom. Schmitt (CT 205) points out in this respect that the right to the free expression of opinion in Article 118 of the Weimar Constitution is seemingly not protected in an absolute sense, as it should actually be in line with the liberal ideal. Article 118 at the time provided as follows:
Every German has the right, within the limits of the general laws, to freely express his opinion through word, writing, print, image, or in other manner. No work or professional relationship may hinder him in this right, and no one may disadvantage him if he makes use of this right.
Censorship is not permitted. However, exceptions may be established by statute for film or cinema [Lichtspiele]. Also, statutory measures are permitted for preventing the display and sale of defamatory and pornographic literature as well as for the protection of youth.
Schmitt (CT 206) notes that the exception in respect of cinema is of particular interest for the development of the liberal fundamental rights themselves, and gives three reasons for this:
Cinema is exceptional insofar as it is not a true instance of the expression of ideas as is for example the printed media. Except where it simply contains images of words, it is ‘only image and mimetic representation [nur Bild und mimische Darstellung], thus not language and not mediated thinking by way of the spoken or written human word. It is not the bearer of any real discussion’ (CT 206/VL 168). Cinema is in other words not the conveyor of truth, as representation is understood to function according to the traditional philosophical understanding. Its force comes from elsewhere.9 Schmitt here appears to already allude to a different understanding of representation, which Derrida (Dis 187–315) would spell out in more detail, that is, that any form of representation, including cinema (and television), is not a copy of something original (the imitated or the truth preceding the imitation), but mimetic in an originary sense: the imitation precedes the imitated. At stake in representation is thus not the repetition of some prior event, but instead an ‘event’ that has never been a present past. Schmitt’s remarks on the so-called spirit of technicity (Geist der Technizität) in ‘The Age of Neutralization’ (1929) confirm this understanding of the operation of technology.10 Schmitt points out there that although the spirit of technicity appears to be simply lack of spirit (Geistlosigkeit), it remains spirit:
perhaps an evil and diabolical spirit [vielleicht böser und teuflischer Geist], but not to be dismissed as mechanistic and not attributable to technology. It is perhaps something horrendous [Grauenhaftes], but not itself technical and mechanical. It is the belief in an activistic metaphysics – the belief in an unlimited power and domination of man over nature, even over human nature [die menschliche Physis]; in the unlimited ‘receding of natural limits’, in unlimited possibilities for change and happiness in respect of the natural this-worldly existence of humanity. One can call this fantastic and satanic [Das kann man phantastisch und satanisch nennen], but not simply dead, spiritless or mechanised soullessness [nicht einfach tot, geistlos oder mechanisierte Seelenlosigkeit].11
(CoP 94/BdP 93)
Technology, including cinema, should, in spite of appearances, thus be not simply associated with death, but viewed in terms of whence it originates, that is, with reference to the fantastic and the satanic, or what with reference to Freud (2001, XVIII: 1–64) and Derrida (B&S II 83–8) can be referred to as an uncanny self-destructive compulsion.12
No state can afford to relinquish to others the new technical media for the transmission of news, the influencing of the masses, mass persuasion, the creation of a ‘public’, more exactly, a collective opinion. Thus, behind the formula of the total state, a correct awareness stands firm, namely that the present-day state has got new means of power and possibilities of monstrous intensity [ungeheurer Intensität], the range and consequences of which we hardly suspect, because our vocabulary and our imagination are still deeply rooted in the nineteenth century.
In this sense, the total state is at the same time a particularly strong state.17 It is total in the sense of quality and energy, in the way the fascist state calls itself a ‘stato totalitario’, by which it wants to say first of all that the new means of power belong exclusively to the state and serves its increasing power. Such a state does not allow the development within itself [in seinem Innern] of any forces which are hostile, obstructive or divisionary in respect of the state. It does not think of handing over the new means of power to its own enemies and destroyers, and to let its power be buried under any watchwords, liberalism, Rechtsstaat, or whatever one wishes to call it. Such a state can distinguish between friend and enemy.18
(FA 21–2/ VRA 360–1)
Freedom, specifically freedom of speech, thus poses the threat of state dissolution and to avoid this Schmitt believed that the state had to have a monopoly over the modern mass media.19 With his endorsement of the qualitative total state as a response to this threat, the distinction between the rule-of-law component and the political component of the Constitution is effectively dissolved in favour of the latter component.20
The rise of the modern state, as Schmitt (CT 198) points out, was accompanied by the establishment of national churches. Religion was consequently not regarded as a private matter (CT 198). The Baptists and Puritans however believed in the absolute privatisation of religion whereby the state and public life were rendered relative and devalued whereas religion came to be regarded as the most important value (CT 198). Religion was now a matter for the individual, whereas the church and the state only became a means to arrive at this absolute value (CT 198). Schmitt (CT 197–8) thus accepts that there is historical evidence to support Jellinek’s analysis which posits religious freedom as the first of all fundamental rights and the right from which all fundamental rights have been derived, even though the issue cannot be regarded as settled. For Schmitt (CT 197–8) the originary nature of religious freedom is rather a structural or systematic matter. As we saw above, the principle of distribution or allocation is hereby established: the individual as such is the bearer of an absolute value and remains with this value in the private sphere; his private freedom is consequently something which is in principle unlimited; the state is only a means and thus relative, derivative; it is limited in all its powers as well as controllable by the private sphere (CT 197–8). These ideas, as Schmitt (CT 197) points out, first found expression in the US states’ Bills of Rights of the eighteenth century. The essential rights incorporated were freedom, private property, security, the right to resistance, freedom of conscience and religious freedom (CT 197). The purpose of the state was to secure these rights (CT 197).
Schmitt (TL 53–64) further elaborates on this analysis of the origin of the fundamental rights.21 Here the issue is the philosophical origin of the liberal idea of the private sphere. In Hobbes’s Leviathan the basis is according to Schmitt laid for liberal constitutionalism, which was then developed further by Spinoza, Mendelssohn and Stahl-Jolson.22 It is in the context of a discussion about the belief in miracles that Hobbes introduces the distinction between outer confession and inner faith, which, according to Schmitt (TL 53–6), was ultimately the reason for the collapse of the Leviathan. Hobbes describes the sea monster Leviathan, a combination of god and man, animal and machine, as the bringer of peace and security (TL 53). This mortal god requires absolute obedience and there is no right of resistance against him (TL 53). The state is the highest and final power within the territory and has the final say in respect of questions of justice, as to right and wrong, as well as in respect of religion, what counts as truth and error, including whether a specific event is to be regarded as a miracle (TL 53). Schmitt (TL 54) reminds the reader that the importance of miracles at the time Hobbes wrote was related to the monarch’s reputed powers of healing illnesses as well as the battle with the Roman Catholic Church. In other words miracles had a political meaning (TL 54). Although Hobbes was a sceptic as to the existence of miracles, this was in terms of his state model ultimately a matter of authority: ‘A miracle is what the sovereign state authority commands its subjects to believe to be a miracle’ (TL 55/DL 82). Hobbes’s example is that of the sacrament of Holy Communion. Should an ordinary person declare that the bread turns into the body of Christ, it would be of no consequence, yet if this is declared by state authority, a miracle is indeed at stake and everyone has to remain true to the command by way of confession (TL 55). The outward actions of ordinary persons thus need to comply with the commands of the sovereign, yet they need not believe in the truth of the command (Dyzenhaus 1994: 9).
Yet it is exactly at this point of sovereignty, where the sovereign acts as lieutenant of God, and where political power and religion are united that a schism appears (TL 55–6). This is because of the distinction Hobbes draws here between public and private reason (TL 56). It is by virtue of public reason that the state declares whether something counts as a miracle (TL 56). Hobbes nevertheless leaves room for the individual to decide by private reason what to believe inwardly, on the basis of the general freedom of thought, and to keep this judgement in his heart (TL 56). In the event of the external confession of faith, as we saw, private judgement however comes to an end and the sovereign decides what is true and false (TL 56). According to Schmitt (TL 56), the distinction drawn here between public and private, faith and confession, in the centuries that followed was determinant of the development of the liberal constitutional state. The neutral state found its origins here, characterised by individual freedom of thought and conscience and finding expression in the freedom rights of the individual (TL 56–7). Such freedom, as we saw above, threatens the state’s monopoly of the political and thus poses the risk of dissolution. The state as constructed by Hobbes thereby contained within itself the seeds of its own destruction at the hands of illiberal forces (TL 74/DL 118). The distinction between inner and outer, in the words of Schmitt (TL 57/DL 86), ‘contained the seed of death that destroyed the mighty Leviathan from within and brought down the mortal god [Er wurde zum Todeskeim, der den mächtigen Leviathan von innen her zerstört und den sterblichen Gott zur Strecke gebracht hat]’.23
It was the ‘Liberal Jew’ Spinoza who according to Schmitt (TL 57/DL 86) noted the barely visible schism introduced by Hobbes and proceeded to invert the relation posited by Hobbes between external/internal and public/private in the Tractatus Theologico-Politicus (1677).24 For Hobbes, as we saw above, sovereign power and the attainment of peace stood at the forefront, with individual freedom of thought only being recognised as a background proviso (hintergründiger Vorbehalt) (TL 58/DL 88). For Spinoza however ‘[i]ndividual freedom of thought is the form-giving principle, the necessities of public peace as well as the right of the sovereign power having been transformed into mere provisos [bloβe Vorbehalte]’ (TL 58/DL 88). This inversion, which would determine the ultimate fate of the Leviathan, is derived from what Schmitt (TL 58/DL 89) calls ‘Jewish existence [jüdischen Existenz]’: ‘A small intellectual switch emanating from Jewish existence accomplished, with the most simple logic and in the span of a few years, the decisive turn in the fate of the Leviathan’ (TL 58/DL 88–9). After mentioning a few other advocates of the notion of freedom of thought, including, as noted, Mendelssohn and Stahl-Jolson, whose Jewish origins are again emphasised, Schmitt (TL 61/DL 94) notes that if public power is restricted to the external realm ‘it is hollow and already soulless from within [hohl und von innen her bereits entseelt]’.
It is important to note that this threat to the Leviathan, allegedly exploited by Jewish forces, does not in Schmitt’s reading appear for the first time after its construction by Hobbes. The ‘Jewish exploitation’ thus already involves a ‘return’.25 The threat at stake here is in other words already a haunting presence prior to the Hobbesian construction.26 The name ‘Leviathan’ moreover appears to have been deliberately chosen by Hobbes to (secretly) incorporate, in the hope of at the same time overcoming this threat.27 This is because of the associations which the name carried and Schmitt (TL 5–15) refers here to Jewish,28 Medieval-Christian and early modern interpretations29 of the Leviathan, which presumably informed Hobbes’s mythical construction of the state as a satanic sea monster.30 In Schmitt’s view, Hobbes had however in doing so underestimated the demonic force associated with the Leviathan (TL 81–2/DL 123–4), which would inevitably make a return.31
Schmitt’s collaboration with the Nazis and his anti-Semitic views are no secret. As noted in Chapter 1 above, the argument that this can be attributed to opportunism for a short period of time has been discredited32 with the publication of his 1912–1915 Diaries33 and his Glossarium, containing notes from 1947–1951.34 As can be seen from the above discussion, Schmitt’s anti-Semitism is also clearly evident from The Leviathan in the State Theory of Thomas Hobbes. Some have argued that this book and its anti-Semitic rhetoric provide further evidence of the nature of Schmitt’s political theology.35 Such a reading, although convincing in many respects, remains restricted to Schmitt’s conscious intention with these utterances.36 The question that requires an answer to is what Judaism, beyond consciousness and even beyond the unconscious, represents for Schmitt.37 The question is raised with the expectation that an answer could lead us to the ‘origin’ of fundamental rights.
The opening and closing remarks of Schmitt at the conference which he organised in 1936 with the theme Das Judentum in der Rechtswissenschaft38 provides some clues in this regard.39 The two speeches presented by Schmitt at the conference speak of the identity of the German nation and the need to expunge therefrom that which is alien (Jewish being, jüdisches Wesen), but to which there is nevertheless a susceptibility or predisposition (Anfälligkeit) (DJ 16) or lack of resistance (Widerstandslosigkeit) to (DJ 33). This attraction appears also from the other (Jewish) side, towards what is real (das Echte) in what is German (DJ 32). This mutual attraction is expressed in the language of spirit (Geist), and Schmitt (DJ 14, 29, 34) foresees in this respect and himself engages here in a spiritual war (Geisteskampf), ultimately against the enemy that we encountered in Chapter 2, Sections A–C above. He contends that under Jewish influence, the German spirit has been falsified by something unspiritual (Ungeistiges) (DJ 15), which he nevertheless also refers to as a ‘spiritual force’ (geistigen Macht) (DJ 15). The German spirit, specifically in the legal field, consequently has to be freed from all ‘Jewish falsification’, which has extended even to the concept of spirit (Geist) (DJ 15) and of justice (DJ 29). The supposed critical gift of the Jew, he further asserts, springs from a disjunction in respect of everything that is essential (wesentlich) and proper (arteigen), and contrasts markedly with the mutual critical thinking of German scholars in the legal community (DJ 32), who also need to act as legal guardians (Rechtswahrer) (DJ 28). The danger of the Jew lies for Schmitt in the fact that he ‘is unproductive and sterile to the nature of the German spirit’ (DJ 31), and has a ‘parasitical relationship’ to such spirit (DJ 32). In this respect the Jew engages in an ‘atrocious and uncanny changing of masks’ (grauenhafter, unheimlicher Maskenwechsel), which has a certain ‘demonic enigma’ (dämonischer hintergründigkeit) (DJ 32, 33).40 The Jewish skill in mimicry, Schmitt (DJ 33) continues, can be recognised by its consequences, but it cannot be grasped (begreifen). This incomprehension is seemingly tied to the fact that, according to Schmitt (DJ 32), it is not at all possible to access the ‘inner essence of the Jews’.
The description of identity, that is, of the German spirit, that is at stake here shows that the self is constituted by the uncanny return of the absolute stranger (represented here for Schmitt by the Jew), and which, as we saw above, is replicated in the concept of the state as constructed by Hobbes.41 What are the implications of this heteronomy? The relation of the mime to the mimed, as we also saw earlier in relation to cinema is not that of the imitated coming before the imitation (Dis 203). Instead the imitation (for Schmitt, this refers to the Jew) precedes in a certain way the imitated (the German), and the copy no longer has an a priori model. This heteronomy can be understood in view of Schmitt’s mention of the strange appearance of Jewish law as the deliverance from chaos, of three polarities that operate in Jewish legal thinking,42 the difficulty of correlating such thinking with the legal sentiment of the German people43 and the severe (stark, also ‘bad’) dominance of this thinking over the whole of the legal field (DJ 28). At stake in this ‘chaos’ or demonic force, it is submitted, is the Freudian death drive (Chapter 2, Sections A–C), which the Jewish spirit represents for Schmitt, and which lies at the ‘origin’ of what Schmitt (CT 203/VL 165) refers to as the primordial individualistic right (individualistische Urrecht): freedom of religion and opinion.
At this point in Schmitt’s Constitutional Theory we are very close to Derrida’s hesitant re-conceptualisation of freedom in Rogues. ‘Hesitant’ because of the associations traditionally coupled to freedom, which were set out above. Freedom is no longer to be simply understood in terms of the liberal model as a sphere of freedom, that is, as mastery or measure, as the autonomy of a subject in control of himself, or even more broadly, in the traditional philosophical sense, as related to power, force, possibility, ability, sovereignty and mastery (FWT 48–9; Rog 40–4, 54). The above analysis suggests that freedom is instead to be understood in a pre-subjective or pre-cratic sense, as without power, as an exposure beyond mastery, sovereignty and autonomy (Rog 47; FWT 52). In other words freedom is to be understood as a welcoming of the unforeseeable or incalculable event, of who or what may come or arrive, that is, as a compromising of the self, an opening of the self to its own destruction (FWT 45, 49–50, 52; Rog 45, 52). We will see below that a close reading of Schmitt’s texts suggests the need for a similar re-conceptualisation of equality.
The rule-of-law component with freedom at its foundation is, as noted above, not all there is to the modern liberal constitution. Of equal or perhaps even greater importance is equality, which according to Schmitt (CT 256) is a principle of democracy, and thus forms part of the political component of the Constitution. Equality for Schmitt (CT 258–9) first of all implies an inequality, that is, a certain separation from and exclusion of others so as to form a political unity of equals, or, thought in terms of the concept of the political, of friends (Herrero 2015: 107).44 According to Schmitt (CT 257/VL 226), democracy as a specific state form can be grounded (begründet) only on a ‘precise and substantial concept of equality’. He therefore objects to a conception of equality which is ‘general and meaningless [allgemeine und gleichgültige Gleichheit]’.45 As a political concept, Schmitt (CT 258) notes, equality requires the drawing of a distinction. The equality of everyone with a human face would mean the dissolution of all distinctions and of the drawing of boundaries (CT 257). For Schmitt, equality in this ‘substantial’ sense is central to the concept of the political itself:
An equality with no other content than the equality that is common to all human beings [Menschen] by itself, would be an unpolitical equality, because it would lack the correlative of a possible inequality. Every equality acquires its meaning and its significance [ihre Bedeutung und ihren Sinn] through the correlate of a possible inequality. This equality is the more intensive, the greater the inequality vis-à-vis those that do not belong to the equals. An equality without the possibility of an inequality, an equality that one inherently possesses and that cannot at all be lost, is without value and meaningless.46
(CT 258/VL 227)
This first political principle of equality is for Schmitt (CT 259/VL 227) the precondition for all other rights to equality to be found in a state, such as the equal right to vote and equal access to employment. The nation thus first distinguishes itself from others, that is, other potential external enemies, but as he does in The Concept of the Political,47 and picking up on the theme broached in the section on ‘freedom’ above, Schmitt (CT 260–1/VL 230–1) points out with reference to the Jacobin dictatorship that this political equality/inequality can also find expression within a nation where certain opponents are declared to be outlaws or in nations where only those who belong to a certain religion are believed to be deserving of such political equality. Homogeneity is thus a requirement because otherwise peace within the state would be threatened (CT 261–2/VL 231). Schmitt’s notion of homogeneity, as employed in Constitutional Theory and elsewhere can easily be misunderstood.48 In contrast to what some have argued, it is not about the ‘sharing of certain physical or moral qualities’ and Schmitt makes no claim in Constitutional Theory that the members of a polity can ‘univocally and uncontroversially identify a set of qualities which defines them as a political unity’.49 Although Schmitt (CT 263/VL 234) indeed also speaks about substantial homogeneity (substantielle Homogenität) in this context, this should not be understood as implying that a people necessarily is or must be lacking in diversity or plurality.50 Schmitt is acutely aware that a nation can consist of a diversity of peoples,51 noting that the belongingness to a nation can be determined ‘by very different [sehr verschiedene] elements’, among which he mentions ideas or representations (Vorstellungen) of a common race, a common religion, as well as a shared destiny and tradition (CT 258/VL 227). Later in the same text he adds to these elements the following: a common language, common historical destinies, traditions and memories, as well as common political goals and hopes (CT 262). Although language is no doubt important, Schmitt notes that this is by no means definitive. Decisive is ‘the commonality of historical life, conscious willing of this commonality, great events and goals’ (CT 262/VL 231). Real revolutions and victorious wars can furthermore overcome language differences and ground a feeling of national belonging (CT 262). Schmitt (CT 259) also acknowledges that the substance of this equality can be different among different democracies and in different time periods.
Should there be a lack of homogeneity, for example if the state consists of a number of different nations or contain national minorities, there are a number of ways in which such homogeneity can be brought about, such as assimilation or through violent oppression or exile of the heterogeneous sector of the population (CT 262). Another solution would be secession. Schmitt (CT 262–3/VL 232–3) in addition mentions as ‘consequences’ of the notion of democratic homogeneity: (1) the control and deportation of foreigners; (2) methods of rule of heterogeneous countries by foreign powers in the form of colonies, protectorates or intervention treaties; (3) laws against foreign domination of the economy; (4) the use of denaturalisation and expatriation; and (5) the possibility of enacting a constitution by only a certain section of the population. With these examples, Schmitt seeks to illustrate the inevitability, or perhaps rather necessity, of bringing about substantive or political equality, which unavoidably implies an inequality. The alternative is sketched by Schmitt (CT 263/VL 233) as follows: ‘A democratic state’, he notes, ‘would deprive itself of its own substance [sich … seiner Substanz berauben] through a logically consistent recognition of general human equality in the area of public life and of public law’.52 Political unity, as we saw earlier, requires the continuous reproduction of homogeneity or uniformity. If the state lacks the willingness or capability to do so, it would not be able to ‘prevent … opposing groups from dissociating to the point of extreme hostility (i.e. to the point of civil war)’ (Schmitt 2002d: 307/PB 160).
These remarks of Schmitt, which emphasise the link between equality, homogeneity, uniformity and the risk of the heterogeneous (from outside or from within the state), that is, ultimately of state dissolution, should be read together with his criticism expressed earlier in Constitutional Theory of the contemporary tendency to extend without limitation the concept of democracy (grenzenlose Ausdehnung des Begriffes der Demokratie) so as to include a place for ‘everything that is ideal, beautiful and pleasant’ (CT 257/VL 225).53 In the same context, Schmitt makes the following remark about general, meaningless equality:
The equality of everything ‘that bears a human face [alles dessen, ‘was Menschenantlitzt trägt’] is incapable of providing a foundation for a state, a state form, or a form of government. No distinctive differentiations and delimitations may be derived from it; only the elimination of distinctions and boundaries; no specifically formed institutions can be constituted on its basis, and it can only contribute to the dissolution and elimination of distinctions and institutions that no longer have any force in themselves [die keine Kraft mehr in sich haben].
(CT 257/VL 226)
The concept of equality thus risks suffering the same fate as the concept of democracy, thereby undermining other concepts as well as state institutions. This threat is what motivates Schmitt’s attempt to reinvigorate the concept of equality by pointing to its substantive and political dimension. Schmitt (CPD 11/GLP 16) likewise notes that ‘[u]ntil now [Bisher] there has never been a democracy that did not recognize the concept of the foreign [des Fremden] and that could have realized the equality of all men’. Here Schmitt condemns in harsh terms the idea of a democracy of mankind that would realise the equality of all men:
As much of an injustice as it would be to disregard the human dignity of every single individual human being, it would nevertheless be an irresponsible folly, leading to the most evil formlessness and therefore to even worse injustice [eine unverantwortliche, zu den schlimmsten Formlosigkeiten und daher zu noch schlimmerem Unrecht führende Torheit], to deny the specific characteristics of the various spheres [here specifically, of the political].54
(CPD 11/GLP 17)
Such a conception of democracy or of equality would thus entail a denial of the political or a depoliticised understanding of equality; it would deny human nature and the friend/enemy criterion of the political in terms of which people either align themselves with others or stand opposed to them.55 Such an absolute equality of human beings, Schmitt (CPD 12/GLP 17) continues, would be an equality which understands itself without risk of or to the self (die sich ohne Risiko von selbst versteht). Such an equality, which contains no relation to inequality, Schmitt (CPD 12/GLP 17) says, would be ‘conceptually and practically meaningless, an indifferent equality [begrifflich und praktisch nichtssagende, gleichgültige Gleichheit]’. Yet Schmitt does not categorically reject this absolute (conception of ) equality; he does so only
for as long as [solange] … the various states of the earth distinguish their citizens politically from other human beings and exclude/keep separate [von sich fernzuhalten wissen] politically dependent populations that are unwanted, on whatever grounds, by combining dependence in international law with constitutional foreignness [staatsrechtlichen Fremdheit].
(CPD 12/GLP 17)
Schmitt seems to suggest that this situation will never change in reality, although colonialism (the second example Schmitt refers to in the quotation above) has in the meantime, at least in a formal sense, come to an end. Were such an absolute equality to be implemented, Schmitt (CPD 12/GLP 18) further notes, one would not only have robbed political equality of its essence and made it without value for the individual human being (einzelnen), but politics would have become without essence (wesenlos), as such equality without essence would have been taken seriously within the field (of the political). At stake here is clearly an equality that is divided in itself; with ‘substantive equality’ as Schmitt conceives of it giving birth to itself by distinguishing itself from what can be called ‘meaningless equality’. Schmitt’s rhetoric in The Crisis of Parliamentary Democracy (1923) is particularly forceful, and he clearly speaks of something he finds threatening. He is looking into the abyss, one could say, and anxiously seeks fixed ground.56
As with freedom, at least in some of Schmitt’s writings as we saw above, there is clearly something threatening, abyssal, originary perhaps, in equality. This seems to suggest that the seeming inconsistency in Schmitt’s views as to whether the rule-of-law component and the political component of the modern constitution exist side by side57 or whether the political component precedes and determines the rule-of-law component,58 is to be explained by the haunting presence of something beyond the political, which in a certain way precedes and infuses both these two components. We can see this for example when Schmitt (CPD 13/GLP 18) distinguishes absolute or limitless equality from democracy (‘The equality of all human beings as human beings is not democracy [Die Gleichheit aller Menschen als Menschen ist nicht Demokratie]’); yet in doing so he alludes to another ‘conception’ of democracy, which can with reference to Derrida be referred to as the ‘democracy to come’, and which would not necessarily be tied to country, state and citizen:
Until now there has never been a democracy that did not recognise the concept of the foreign and that could have realized the equality of all men [Bisher hat es noch keine Demokratie gegeben, die den Begriff des Fremden nicht gekannt und die Gleichheit aller Menschen verwirklicht hätte].
(CPD 11/GLP 16)
As we saw above, he associates this ‘democracy to come’ and the incalculable equality associated with it, with irresponsibility, formlessness, injustice (unrecht), folly (Torheit), meaninglessness and self-destruction. At stake at this point of intersection between Schmitt and Derrida is a demos without kratie (power),59 and an equality which does not simply draw no distinctions, but which welcomes the absolute stranger, thereby disrupting the return of the people to itself.60 The relation between these two forms of equality61 more precisely raises the question of the drawing or negotiation of a line in relation to who or what comes. In the words of Derrida:
does this measure of the immeasurable, this democratic equality, end at citizenship, and thus at the borders of the nation-state? Or must we extend it to the whole world of singularities [à tout le monde des singularités], to the whole world of humans assumed to be like me, my compeers – or else, even further, to all nonhuman living beings, or again, even beyond that, to all the nonliving, to their memory, spectral or otherwise, to their to-come or to their indifference with regard to what we think we can identify, in an always precipitous, dogmatic, and obscure way, as the life or the living present of living [la vivance] in general?
(Rog 53/Voy 81)
The analysis undertaken above of equality and freedom is arguably central to envisaging living together today, whether in a province, region or federal member-state, a nation-state, a federation or union of nation states or in the world. We saw that Schmitt’s text stands open to a reading to the effect that both freedom and equality are to be thought beyond subjectivity, mastery, autonomy and consciousness. These concepts are thus to be understood as characterised by a certain unconditionality and incalculability, calling for an absolute welcome of whoever or whatever may come, that is, for a certain irresponsibility beyond reason. Such a reading could have significant implications for the duty of sovereign powers (on the national, transnational and international levels) in their relation to others. This is so both insofar as the singularities (rather than ‘subjects’ or ‘individuals’)62 are concerned to whom freedom and equality are owed and the content of the ‘duties’ owed to such singularities.63 The structure at stake here, which we encountered in the analysis above, also appears from a number of Derrida’s texts where he speaks of a tension within the concept of democracy between the incalculable singularity of anyone, before any subject, on the one hand, and the universality of rational calculation, equality of citizens before the law, the social bond of being together, on the other.64 The scope of this duty towards singularities is in principle unlimited, incalculable, that is, a duty beyond duty, law, debt, economy and conditional hospitality (G&L 67; ‘Auto’ 133). This duty is not restricted to those with citizenship, subjectivity or consciousness (Rog 86), that is, it goes beyond ‘[t]he equality of everything “that bears a human face” ’ that Schmitt (CT 257/VL 226) speaks of. It is not even restricted to living beings, but extends to those who are dead and to those who are yet to be born (B&S I 110). An incalculable or unconditional equality and freedom, which has no regard for the self, is in other words called for.
In somewhat more concrete terms, as Derrida (2013: 37–9; G&L 69–72; B&S I 109) contends, nothing can justify giving preference to what is regarded as ‘our own’, rather than to others, for example to those in far-off countries who starve or to what is called ‘the animal’. The ‘welcome’ referred to above calls for the eradication of malnutrition, disease and humiliation, that is, the denial of equality and freedom, throughout the world, to anyone (Rog 86).65 This rethinking of equality and of freedom as without autonomy, necessarily requires a reassessment of the notion of (human) rights, which in general is associated with the possession of language, subjectivity, sovereignty, freedom, dignity and moral self-determination, which animals, or, in some versions, most animals, are supposed to be lacking in (FWT 69; AR 246). It is precisely this discourse, including the human rights discourse, which is problematic in many respects (both insofar as the reputed abilities of animals and of humans are concerned),66 that justifies the violence perpetrated against animals today (Derrida 2008c: 89; FWT 74; B&S I 111). Simply extending such rights to (some) animals (like primates, because of their seeming proximity to man) would mean keeping the current paradigm and the violence accompanying it, in place. According to Derrida a double strategy is required: on the one hand, support for struggles that seek the extension of human rights to those human beings that are currently deprived thereof, as well as changes in the treatment of animals; and, on the other, ‘the most radical questioning possible of all the concepts at work here’ (‘Auto’ 132–3).67 The notion of human rights is clearly a biased and distorted attempt at domesticating and appropriating the call for absolute hospitality.68
The terms of our living together are today mostly spelled out in constitutions, which, as Derrida (2013: 25) points out, provides for a kind of statutory surveillance of such living together or an armed peace or armistice. Yet a living together (in peace) would be impossible without some hospitality or justice beyond the terms of the agreement, that is, a gift beyond the economy of circular return (Derrida 2013: 26, 35). ‘Living together (well)’ must thus be understood in similar terms to the construction of the self that we encountered above in the analysis of Schmitt. It in other words means that:
one lives together, well then, only with and as a stranger ‘at home,’ [chez soi] in all the figures of the ‘at home’ that there is in ‘living together’ only there where the whole [ensemble] is neither formed nor closed, there where the living together (the adverb) contests the completion, the closure, and the cohesiveness of an ‘ensemble’ (the noun, the substantive), of a substantial, closed ensemble identical to itself; to recognise that there is ‘living together’ only there where, in the name of promise and of memory, of the messianic and of mourning without work and without healing, it welcomes dissymmetry, anachrony, nonreciprocity with an other who is greater, at once older and younger, an other who comes or will come perhaps, who has perhaps already come – here is the justice of a law above laws … .
(Derrida 2013: 28)
1 See e.g. Douzinas (2007); Grear (2006); Sokhi-Bulley (2011); Cheah (2014).
2 Böckenförde (1997: 11–12) notes in this regard that ‘[t]hose elements of a constitution … which affect the state unity in a hindering, balancing, liberating, and perhaps pluralizing way – i.e., basic rights, separation of powers, and the accommodation of an autonomous realm of economic and commercial activities – cannot be called political in the Schmittian sense, because they relativize and limit the political unity of the state on behalf of unpolitical and liberty-serving goals of the individual’.
3 See also Meier (2013: 45–6).
4 Schmitt seems to be alluding here to the contrast which he later draws between the right to assembly granted by the modern liberal constitution, on the one hand, and ‘genuine popular assemblies and acclamations’ of the people in their capacity as sovereign, on the other (CT 272–3/VL 244).
5 See similarly SMP 26–7.
6 See also Römer (1990: 382) who raises the question whether it is not precisely in the autonomous societal sphere, in respect of property, private autonomy and freedom of contract, that a class war is being waged between the owners of property and of the means of production, on the one hand, and those who have only their labour to sell, on the other.
7 See e.g. CT 256/VL 224–5 where Schmitt notes that the meaning of freedom is not restricted to the meaning attributed to it in liberal constitutionalism.
8 See further Schmitt (1935b) where he seeks to appropriate the concept of freedom for the newly established Nazi regime’s ‘constitution’ as against (liberal) constitutional freedom, which had become ‘a weapon [Waffe] and slogan [Parole] of all the enemies and parasites of Germany’, which led to foreign rule [Fremdherrschaft], and turned the German people into slaves.
9 See also the discussion of the double in Chapter 2, Section B above, and of representation, in Chapter 4 above.
10 Schmitt CoP 95/BdP 94 also speaks of the ‘religion of technicity’ and links it explicitly with depoliticisation. He notes that this religion is adopted by great masses of industrialised people because they seek radical results and unconsciously (unbewuβt) believe that absolute de-politicisation is to be found here, i.e. that which man has sought for centuries, which leads to the end of war and the start of universal peace. ‘Yet’, Schmitt notes, ‘technology can do nothing but intensify either peace or war; it is equally available to both, and the name and invocation/conjuration [Beschwörung] of peace, changes nothing. Today we see through the fog of names and the words with which the psycho-technical machinery of mass suggestion operates.’
11 See further CoP 95–6/BdP 95 where Schmitt expresses the view that no simple antithesis is at stake here. Spirit does not fight with spiritlessness, nor life with death, but spirit with spirit and life with life.
12 See further the analysis of technology in Chapter 2, Section C above and in Chapter 7 below.
13 See CPD 33–9, 48–50.
14 See also LL 6 where Schmitt points out that whereas a hundred years ago there was a movement towards freedom; at that point in time (1932), there was a movement towards the total (administrative) state.
15 See also VRA 360.
16 See also HdV 111, and see Strauss in CoP 104 (par 9), noting that the political is ‘not a “relatively independent domain” alongside others’ and that the political is fundamental, authoritative and inescapable. Meier (2013: 30–5), as noted in Chapter 2, Section A above, persuasively argues that there was a shift in Schmitt’s thinking in respect of the political between especially the first (1927) and second (1932) editions of The Concept of the Political. Whereas Schmitt in 1927 attempted to show that the political has its own domain alongside others and remains restricted to foreign policy or external warfare (Meier 2013: 25–30), in 1932 the political is said to be reachable from every domain (see e.g. CoP 78) and civil war stands on an equal footing with external war. Furthermore, in Meier’s reading, the ‘conception of domains is replaced by a model of intensity’, with the brother now becoming a potential enemy (Meier 2013: 30–1). Everything now becomes potentially political (Meier 2013: 35). See also Taubes (2013: 45–6), and see Chapter 2, Sections A–C above.
17 Schmitt (FA 39) distinguishes in this regard between the (weak) quantitative total state where private interests dominate and the (strong) qualitative total state which is able to distinguish between friend and enemy. Whereas the quantitative total state seeks to cater for all interests, the qualitative total state itself determines a substantive vision, which the rest of society must adhere to. Although he contrasts these two forms of state, he nevertheless holds the view that all states are potentially total in the strong sense, and this is especially so in the event of the state of exception. Here the ‘particular centre of the state’ (HdV 76) or what can be referred to as the ‘seat of sovereignty’ of the specific state comes to the fore; see also Schwab (1989: 77–9).
18 In later years, Schmitt would change his view somewhat in respect of the existence of the total state; see ‘GP’ 23–4 where Schmitt points out that the notion of a ‘total state’ is actually a misnomer.
The state with its bureaucratic machinery can never be total, only a (political) party (i.e. a part/ein Teil) that rejects the existing unity and wishes to establish a new unity with itself representing such new unity can be such; see further Chapter 2, Section B above.
19 See further ‘Auto’ 109 on the relation between the media and terror since World War I. Today ‘control’ of the media is, at least in established democracies, more subtle than at the time Schmitt was writing. In the United States, for example, such control is not exercised directly by the state, but rather through corporate and elite interests; see Chomsky (2011: 68–9, 163–7, 233–41).
20 According to Agamben (2005: 2–3), with the Nazi takeover in Germany, the exception effectively became the rule, lasting for 12 years. Such a state of exception, according to Agamben (2005: 1–31), characterises all Western (liberal) democracies today. For criticism of this analysis, specifically as to its alleged Schmittian pedigree, see Kistner (2009; 2011); see further Chapter 3 above.
21 As Hooker (2009: 41, 50) points out, Hobbes is central to Schmitt’s thinking insofar as it was Hobbes who laid the foundation for the modern state, and which, as we saw, Schmitt closely associates with the concept of the political and with the era of the jus publicum Europaeum (see Chapter 2 above and Chapter 7 below). This era was nevertheless then (in the early twentieth century) coming to an end with the seemingly inevitable movement towards universalism, and Schmitt’s The Leviathan in the State Theory of Thomas Hobbes seeks the seeds of this dissolution or destruction within the concept of the state itself as constructed by Hobbes.
22 The reference here is to Friedrich Julius Stahl (1802–1861), whose Jewish origins Schmitt sought to emphasise after the Nazi takeover by referring to his Jewish surname (Jolson) before his conversion to Lutheranism; see also SMP 33 where Schmitt notes that ‘his real name is Joll Jolson’. In the 1920s Schmitt relied inter alia on Stahl to point to the contradictions in liberalism; see DC 32–3; CoP 64, 65, 70. In CT 169, 313–5, 33 Stahl’s views on constitutional monarchy are furthermore discussed and cited at length. In the two 1935 essays – ‘Der Rechtsstaat’ (1935) and ‘Was Bedeutet der Streit um den “Rechtsstaat”?’ (SGN 112 and 123–4) – Stahl (here also referred to as Jolson) is however accused of falsifying the notion of the Rechtsstaat through neutralisation and mechanisation (Technisierung) into a merely formal concept, thereby placing this notion in the service of normativism and liberalism. In 1936 Stahl’s total existence is said to be characterised by an ‘atrocious and uncanny changing of masks’ (DJ 32); see further Neumann (2015: 379–83), and below.
23 See also SMP 37 where Schmitt likewise emphasises the importance of political unity and the danger of uncertainties and splits, which inevitably lead to disintegration.
24 For criticism of this analysis, see Galli (2015: 89).
25 See also Dyzenhaus (1997: 91) who aptly puts it as follows: ‘The seeds of the idea of civil society as the realm of the inner are also the seeds of Leviathan’s death. In this way the mythical forces which Hobbes’s Leviathan were meant to combat are in fact unleashed by it and strike back’.
26 See Dyzenhaus (1997: 93–4), who refers here to religious civil war; and see GL 19.
27 See Balakrishnan (2000: 210); and see TL 26/DL 43–4: ‘Because of Hobbes’ psychological peculiarity, it is possible that behind the image of the Leviathan a deeper, secretive meaning [eine tiefere, geheimnisvolle Bedeutung] lies hidden. Like all the great thinkers of his times, Hobbes had a taste for esoteric disguises [Verhüllungen]. He said about himself that now and then he made “overtures”, but that he unveils only half of his real thoughts, and that he acts like people who open a window for a moment, and then close it again quickly out of fear of a storm.’ See also Schmitt’s essay ‘Die vollendete Reformation’ in DL 151: ‘A curtain at the bottom centre [of the frontispiece of Hobbes’s Leviathan] indicates that not only is much said here, but also that some things are concealed [deutet an, daβ hier nicht nur viel gesagt, sondern auβerdem auch einiges verborgen ist]’. See further Kistner (2009: 245) who points to the analogy between Freud’s account of the totemic feast and mythical accounts of the Leviathan; Schmitt’s reference to Jewish-cabbalistic interpretations of the Leviathan myth (TL 8–9); and Chapter 4 and Chapter 5, Section B above on incorporation.
28 See TL 8–9/DL 16–18 where Schmitt elaborates on Jewish interpretations of the Leviathan and Behemoth myths during the Middle Ages, which according to him shows ‘the unique, totally abnormal condition and attitude of the Jewish people toward all other peoples [die ganz singuläre, mit keinem andern Volk vergleichbare, völlig abnorme Lage und Haltung des jüdischen Volkes gegenüber allen andern Völkern]’ (TL 8/DL 16). According to Schmitt (TL 9/DL 18), the Leviathan and Behemoth are for the Jews ‘images of heathenish vitality [Lebenskraft] and fertility [Fruchtbarkeit], the “great Pan’”, which Jewish hatred and Jewish feelings of superiority have each turned into a beast or monster [Untier]’.
29 In these interpretations the Leviathan is depicted as the devil in his battle with God over the soul of mankind; see TL 7–8, 22–4.
30 See DL 144; and see Chapter 7 below on the association of the sea with not only the unconscious, but a force beyond the unconscious, as well as Meier (1998: 102, 107), associating the Leviathan with the evil enemy as such, the Devil or Satan. The contradictions that come to the fore in Hobbes’s image are incidentally typical of mythology, see De Ville (2010; 2011b).
31 See also Salter (2012: 144) who points out that the myth as invoked had the ‘capacity to be repeatedly mobilised as a political weapon in unpredictable ways’, also by those who wanted to destroy the state.
32 See Dyzenhaus (1997: 98); Neumann (2000: 281–2; 2015: 374–91); Bendersky (2005); Hooker (2009: 54–9); Gross (2015).
33 See e.g. Schmitt (2005c: 140, 197, 245).
34 See e.g. GL 17 (entry of 25 Sept. 1947) where Schmitt cites Peter F. Drucker with approval, as saying that Jews, more so than communists, qualify as ‘demonic enemies’. Schmitt (GL 18) then proceeds to comment that this is because the communist can improve and change himself whereas the Jew cannot. ‘The Jew’, he says, ‘always stays a Jew’. It is furthermore specifically the assimilated Jew who is said to be ‘the true enemy [wahre Feind]’. See also Schmitt (1940: 22) where Jews are accused of disturbing and poisoning relations between the French and the Germans.
35 See e.g. Meier (1998: 101–21, 123–32); Strong ‘Foreword’ in TL xxv–xxvi; and Hooker (2009: 55–7).
36 For criticism of this political-theological reading of Schmitt, see Bendersky (2005; 2015: 4, 8).
37 The analysis undertaken here follows Derrida’s approach, e.g. in Glas 30–56 where he undertakes a similar reading in respect of Hegel. Judaism is here associated with homelessness (Glas 41), death (Glas 44), a lack of essence (Glas 50) and radical or absolute expropriation (Glas 51–2).
38 For a partial translation, see Rabinbach and Gilman (2013: 216–18).
39 See also Gross (2015: 6–11) who refers to a number of diary entries where the presence of Jewish individuals or Jews in general appears to have caused anxiety, disgust and fear in Schmitt. Bendersky (2015) perhaps gives a somewhat more balanced perspective, particularly relevant for what concerns us here, referring to a ‘pervasive existential Angst’ close to that of Kierkegaard which appears from Schmitt’s diary entries and which Bendersky (2015: 5, 7, 30) links to Schmitt’s search for security and order in his theories. See also the following elusive remark which Bendersky refers to in the context of a visit to the library by Schmitt and Georg Eisler, the latter reading the book Psychologie: ‘Amazed and shocked by the power of the Jews. Psychoanalysis is the purest expression of Judaism [Erstaunt und erschrocken über die Macht der Juden. Die Psychoanalyse ist der reinste Ausdruck des Judentums]’; see Schmitt (2005c: 314, entry of 9 Feb. 1915).
40 See the remarks above on Friedrich Julius Stahl.
41 The same structure is to be found in the dualistic conception of God that Schmitt adopts in Political Theology II, see Chapter 2, Section A and Chapter 3 above.
42 That is, between Jewish chaos and Jewish legality, anarchic nihilism and positivist normativism, raw sensualist materialism and abstract moralism; see DJ 28.
43 See in this respect TTJT 45/DARD 9 where Schmitt remarks that ‘[t]here are peoples that, without territory, without a state, and without church, exist only in “law” [Es gibt Völker, die ohne Boden, ohne Staat, ohne Kirche, nur im “Gesetz” existieren]’.
44 See also Lindahl (2013: 223) who similarly argues that all claims about equality/inequality are ultimately claims about inclusion/exclusion, i.e. about the ‘boundaries, limits and fault lines of legal orders’.
45 Later in Constitutional Theory, Husserl is invoked in support of the argument that equality can only be spoken of in respect of members of the same group (or species), otherwise the talk of equality would lose its foundation (CT 265/VL 236).
46 This sentiment is echoed in CoP 54–5 where Schmitt rejects the political nature of the concept of humanity as it makes the friend-enemy distinction impossible. However, as we saw in Chapter 2, Section A, the employment of the concept of humanity at the same time intensifies the political by denying the humanity of the enemy and turning him into a foe that needs to be destroyed. As Schmitt puts it in ‘The Age of Neutralizations’ (CoP 95/BdP 94): ‘Today we … know that the most terrible war is pursued only in the name of peace, the most terrible oppression only in the name of freedom, the most terrible inhumanity only in the name of humanity’.
47 See CoP 32, 37–38, and see Chapter 2, Section A above.
48 See further Minca and Rowan (2016: 110–14); and see Voigt (2015b: 47–8) who points out that Schmitt’s contemporaries – e.g. German constitutional scholars like Heller and Kelsen – also believed that homogeneity was a necessary condition for democracy; see likewise Neumann (2015: 63–7). Schmitt’s terminology in this respect however changed in the 1930s. In a text such as SMP 48/SBV 42 Schmitt insists on similarity in kind (Artgleichheit) in respect of the German nation, which he specifically ties to race (der Rasse); and see also above on the conference Das Judentum in der Rechtswissenschaft where Schmitt expresses the view that the German legal system has to be purified of alien elements.
49 See Lindahl (2008a: 13, 14). Schmitt (CT 259) actually mentions this kind of similarity (moral and physical) in respect of the Greeks as an example of how substantive equality can differ between different democracies and in different ages; see also CPD 9/GLP 14.
50 See also Schmitt (2002c: 297/SGN 47), noting that the modern state consists of a great diversity in respect of class, interest, culture and religion. It is the task of parliament within the liberal constitutional system to constantly reproduce a political unity, which means bringing about a certain homogeneity (Homogenität) or uniformity (Gleichartigkeit); see further Chapter 3 above.
51 See also Schmitt (2002d: 306/PB 158).
52 See also CT 207/VL 169 where Schmitt remarks that the democratic rights of state citizenship ‘are dominated by the democratic idea of equality … . According to their nature, they are not valid for foreigners (für Fremde) because otherwise the political community and unity cease to exist and the essential presupposition of the political existence, the possibility of the distinction between friend and enemy, is eliminated [entfällt]’.
53 See also Chapter 3 above.
54 See Campagna (2015: 133) who sees an ambiguity in this passage, though of a different nature than the ambiguity pointed to below.
55 See in this respect also the critique of the notion of humanity in CoP 54–5.
56 Support for this reading can be found in TL 81/DL 123 where Schmitt notes with reference to Hamann (commenting in turn on Kant) that the ‘distance “from transcendental ideas to demonology is not great” ’.
57 See in this respect CT 93, 101 and 169.
58 See in this respect CT 55 and 102, and see Böckenförde (1997: 12). As noted above, in HdV 111 Schmitt e.g. points out that the political is unavoidable and ineradicable. It is thus not possible to distinguish politics from science, religion and law. The uniqueness of the political lies in the fact that every possible field of human activity is potentially political and it becomes immediately political when decisive conflicts and questions arise in this field. The political can furthermore combine itself with any matter and gives it a ‘new turn’. Everything that is in the public interest is in some or other way political, and nothing which concerns the state can really (im Ernst) be depoliticised.
59 See also Chapter 3 above.
60 See also Chapter 5, Section A above. This return of the people to itself, appears most clearly from Schmitt’s understanding of the state as the ‘identity of the people with itself [Identität des Volkes mit sich selbst]’ (CT 260/VL 229–30) and of democracy as ‘identity [Identität] of ruler and ruled, governing and governed, commander and follower’ (CT 264/VL 234). It expresses the idea that within the democratic state there can be no qualitative difference between those who rule and those who are being ruled. The rulers are in other words in no respect superior to or qualitatively ‘better’ than those who are being ruled; see also Neumann (2015: 57) who reads this identity as positing an equality between ruler and ruled. Someone who rules thus cannot step out of [heraustreten] the general identity and homogeneity of the people (CT 264/VL 235). This identity between ruler and ruled ultimately gives expression to the democratic idea of the people ruling themselves (CT 264). Lindahl (2008a: 13–14), likewise Van der Walt (2010b: 115), reads the above passages in Schmitt as positing the idea of rulers and ruled as ‘the same’, which he (Lindahl) refers to as co-referential or idem-identity, which poses the question ‘What am I?’ Lindahl in turn argues in favour of a view of identity as ‘reflexive’, posing the question ‘Who am I?’; see further Chapter 3 above.
61 The aporetic structure of equality is elaborated on as follows by Derrida (Rog 52/Voy 80): equality is ‘inadequate to itself, at the same time chance and threat, threat as chance: autoimmune [inadéquate à elle-même, chance et menace à la fois, menace en tant que chance: autoimmunitaire]’; see further below.
62 See Points 271 for this distinction.
63 Singularity is to be understood in terms of our relation to death, see Derrida (2005a: 140); Points 271; G&L 52.
64 See ‘Auto’ 120, 130; PoF 22; Rog 86; SoM 81.
65 The same call can be made via the notion of dignity, which would no longer remain restricted to the recognition of human dignity, but would begin with ‘the respectable dignity of the other as the absolute unlike, recognized as unrecognizable, indeed as unrecognizable, beyond all knowledge, all cognition and all recognition [la dignité respectable de l’autre comme l’absolu dissemblable, reconnu comme non reconnaissable, voire comme méconnaissable, au-delà de tout savoir, de toute connaissance et de toute reconnaissance]’ (Rog 60/Voy 90).
66 As Derrida (1993b: 35) points out, the animal’s relation to death is often disputed, e.g. by Heidegger, whereas Dasein is said to have a relation to death. As Derrida shows, the latter is a very problematic assumption. The capability of animals in respect of language, response, society, ethics, etc. is also often unjustifiably disputed. Derrida’s contention in this respect is that there is no single limit or threshold between man and animal. No limit furthermore constitutes a solid border and there is more than one limit; see also B&S I 309–10, 333–4; and in general, Derrida (2008c).
67 Although Schmitt did not concern himself specifically with the plight of non-human animals, he puts us on guard against the abuse of the notion of the human to deny rights to those (humans) who are denied (human) rights because of a denial of their humanity; see Campagna (2015: 128–33). Schmitt’s critique in this respect can easily be extended to non-human animals.
68 See below.