State versus Society

In part I, I suggested that political philosophy and political theology—reason and authority—unite (indeed, are inseparable) in their opposition to “social philosophy.” Social philosophy is the term used by Leo Strauss to label the prevailing Nietzschean/Weberian description of modernity as the loss of meaning, a “loss” that Weber more positively describes as the heroic refusal to sacrifice the intellect. On the latter’s view, the disenchantment of the world is in reality a world seen through the eyes of responsible adults, not “overgrown children.” Any flight from intellectual probity, Weber admonishes us in his 1917 lecture, any resurrection or reinvention of magic elixirs that heighten our senses but dull our mind, would be an act of cowardice. Weber’s lecture was quite deliberately delivered as a challenge to a youthful audience—primarily addressed to students and docents—advising them to give up their childish ways and become sober members of the academy. A still relatively young Carl Schmitt felt the slap and took the challenge seriously. His response to Weber’s provocation was “politically theological” in both a decisionist (“Protestant”) and institutional (“Catholic”) way. Sovereign is he (she or it) who decides on the exception. The exception reveals contingency and thus requires that human beings face their freedom, but the decision that contingency allows and demands is constrained by the history and order in which it is embedded. Secular history, in turn, is vouchsafed by a delayed promise. In the Endzeit between the first and second coming of Jesus, the epoch of the katychon,^[1] of history as a now near two-millennia-long pause, any belief in the active intervention of God or of a divinely inspired, revelatory reason as truth would be both vain and in vain. The viator on his or her journey through life has not been abandoned, but has been firmly implanted in a divinely created yet terrestrially governed world. Through a combination of revelation and reason, God (or rather, theology) has given us patterns of thought and behavior, modeled on His own, that continue to guide us in our worldly ways. But these divine patterns must be instantiated by secular institutions in imperfectly secular ways.

In part I, I also suggested that the theological pattern traced by the distinction between God’s absolute and ordained power, coupled with a “concrete” notion of reason anchored in authority, could be seen as a model for Carl Schmitt’s various attempts to reinvigorate a politically and legally meaningful concept of legitimacy capable of challenging early twentieth-century legal positivism and rule-of-law liberalism. In this section, we will see variations of this pattern, learned only partly from theological models. It appears most forcefully in the constitutional distinction between a constituent power (pouvoir constituent) and a constituted power (pouvoir constitué), but also in the fundamental difference between democracy and liberalism. In modern democracies, “the people” (“We the people”) as a collective singular is considered to be the ground, the origin, the legitimacy of the constituted order in which people as individuals conduct their daily lives. This almost ignored commonplace is charged with enormous significance by Schmitt, for the people as constituent power never disappears, always remains just under the surface of the constituted order. Just as God’s ordained order is contingent and, at least in theory, susceptible to change, so also is any given constituted political order. What the people as a collective singular has^[2] created, the people may also tear asunder. Liberal theory, as afraid of popular sovereignty as it was of monarchical dominion, theorizes the disappearance of the constituent power once a political order has been constituted. This, after all, is the definition of deism. The “will” that creates order is no longer necessary, for order is now said to be self-perpetuating. The words, the machinery of the constitution suffice, and constituted positive law becomes sovereign.

In the following chapters of this section we will see how Schmitt manipulates variations of this basic pattern of thought. However, framing our discussion will be a relatively neglected nineteenth-century dichotomy, the distinction between state and society. On Niklas Luhmann’s reading of modernity, the writings of Adam Smith and the French physiocrats mark the emergence of an autonomous economic system that differentiates itself from the political—the state—in its analyses and championing of the so-called free market and global commerce.^[3] The famed “invisible hand” not only represents the trace of the absconded God, but also signals the self-organizing and self-producing and reproducing capabilities of all the emerging social systems. God in his watchtower is no longer needed. These initial eighteenth-century declarations of system independence are then theorized in the nineteenth century, most eminently by Hegel, as the relationship between state and society. If from the perspective of late twentieth-century “social philosophy” (represented by Weber’s heirs) the state is simply the traditional name given to the political system, which is charged with producing collectively binding decisions according to recognized procedures, for Hegel and those
nineteenth-century thinkers, like Lorenz von Stein, who most closely followed him, the state represented the objective order of Sittlichkeit, the ethical and political unity and self-determination of a people. Whereas society (economy, education) emerged as the realm of individual freedom, marked most forcefully as the free play of individual interest, the state rises to the task of guaranteeing the interests of the political community as a whole in opposition, if need be, to the singularly self-serving interests of social agents. Hegel, as was his reconciliatory wont, saw the emergence of individual liberty as the final stage of historical development; thus society functions as the mediating force between two ethical bodies, the (patriarchal) family and the communally oriented state.^[4] Crudely put, the (male) individual emerges from the bosom of the family to become a free person in the institutions of society, but then is integrated into a larger family, as it were, namely that of the communally oriented nation-state. Lorenz von Stein, a relatively unfamiliar name in the Anglophone world, fully accepted Hegel’s differentiation of state and society, but was quite a bit less sanguine about the ideal of reconciliation. In reality, society was a field of war, if not of all against all, then most certainly of group or class against class. Whereas Marx—or at least Marxists—also postulated the coincidence of individual and common interest, albeit in a society emancipated from all or most of the trappings of a state, Stein posited the necessity of the state to intervene in society’s perpetual warfare on behalf of the political community as a whole to ensure the rudiments of civic peace and thus the continued existence of the collective. The main instrument of state power in this regard was the professional, nonpartisan bureaucracy, the very institution that every libertarian liberal and eschatological would-be radical loves to hate.

Carl Schmitt was even less sanguine about the effects of individual liberty on the ability of the state to maintain the political unity and thus collective independence of the people. What disturbed him were what he believed to be the corrosive effects of individual liberties guaranteed by putatively pre-political rights, especially the right of conscience, otherwise known as religious freedom (though the right to private property was not far behind). In 1895, Georg Jellinek published a short study on the 1789 French Declaration of the Rights of Man and Citizen, attributing its inspiration to the enumeration of rights in the various state constitutions of the nascent revolutionary republic in North America, most notably the 1776 constitution of the Commonwealth of Virginia. Jellinek highlights the foundational importance of a single right, the above-mentioned religious freedom. “With the conviction that there existed a right of conscience independent of the State was found the starting-point for the determination of the inalienable rights of the individual” (Jellinek 2009, 42). From this initial right, there follows a list of additional freedoms with which we should all be familiar. Jellinek finds symbolic value in the prominence these rights have in the various North American state constitutions. “Everywhere the bill of rights forms the first part of the constitution, following which as second part comes the plan or frame of government. The right of the creator of the state, the originally free and unrestricted individual, was first established, and then the right of that which the individuals created, namely, the community” (44). In other words, the community, represented by the state, is derivative of and therefore delimited by the individual, who exists, fully individuated and possessed of rights, before the state community is ever formed.^[5]

In his Constitutional Theory, Schmitt makes much of this invasion of rights into the sphere of the political. Acknowledging that a controversy exists about the historical accuracy of Jellinek’s claim, namely the prominence of the right to conscience, Schmitt nevertheless affirms its conceptual priority. With the loss of religious unity following the Protestant Reformation and the resultant resolution of the religious civil wars, two options remained open to the individual European states. By establishing a state religion under the motto cuius regio, eius religio (whose realm, his religion), the Central European, confessional states subordinated religion to state authority, tolerating minority religions, if at all, as state-protected communities. However, Anabaptists and Puritans, Schmitt notes, found a different solution. “In the logic of their posture toward the state and toward every social bond lay an absolute privatization of every religion,” which “did not mean that religion lost its value—quite the opposite. The state and public life generally were rendered relative and devalued. Religion as the highest and the absolute thing becomes the affair of the individual” (Schmitt 2008a, 198). Against the truth of personal conviction, all social formations and, above all, the political formation called the state, retain only relative if not directly negative value. By way of this creation of an inviolable private sphere, the state is hollowed out and weakened. If the individual is the fundamental unit of human interaction, its power, to use Schmitt’s characterization, is in principle unlimited, and the power of the state is in principle limited (197–98), and so the weakening of state action begins.

In contrast, Schmitt posits the primacy of the political collective over the self-judging conscience of the solitary and acquisitive individual—in other words, of the state over society. In his writings of the late 1920s, especially Constitutional Theory, this distinction is coded as the difference between democracy and liberalism as well as between the public and private, which is what we will investigate in a subsequent chapter. However, in The Nomos of the Earth (originally published in 1950), almost as if compelled to provide his own “state of nature” narrative to compete with Hobbes, Pufendorf, Locke, Rousseau, et al., Schmitt gives us his own version of the origin of law and thereby of the political community, and the primary elements of his just-so^[6] story are land and a people. Perhaps because the noun “earth” (die Erde) in German is grammatically feminine (but then, even we Anglophones speak of Mother Earth), Schmitt easily slips into a gendered mythology in which the “the fertile earth” becomes the “mother of law.” Her “womb” contains an “inner measure” that rewards human labor, which manifests itself in the establishment of the clear “demarcation of fields, pastures, and forests” and delineation of the earth’s surface by “fences, enclosures, boundaries, walls, houses, and other constructs.” As a result, “families, clans, tribes, estates, forms of ownership and human proximity, also forms of power and domination, become visible” (Schmitt 2003, 42).^[7] The visibility of power (Macht, which can also refer to authority) and rule (Herrschaft, translated as “domination”), best embodied by the representative individual, is all-important for Schmitt.^[8] To the “abstract definition of terms found in modern textbooks, which are geared to so-called norms” (45), Schmitt opposes foundation narratives, “the great primeval acts of law” that ground their meaning first and foremost in “terrestrial orientations”—that is, the appropriation and division of land by a community establishing itself as a legal and political entity. To drive this stake in the ground firmly and deeply, allow me the indulgence of stringing some passages together from the first chapter of Nomos. Following the citation of a passage from Isidore of Seville (from his Etymologia, as reproduced in the first part of Decretum Gratiani) regarding the essence of international law, which leads off with land-appropriation and the founding of cities, Schmitt continues:

Ultimately, then, “land-appropriation . . . is the primary legal title that underlies all subsequent law. . . . Land-appropriation also precedes the distinction between private and public law; in general, it creates the conditions for this distinction” (46). Therefore, “the constitutive process of land-appropriation is found at the beginning of the history of every settled people, every commonwealth, every empire. . . . Not only logically, but also historically, land-appropriation precedes the order that follows from it. It constitutes the original spatial order, the source of all further concrete order and all further law. It is the reproductive root in the normative order of history. All further property relations . . . are derived from this radical title” (48).

I have quoted Schmitt on this point at great length not to convince you of the truth of his argument, but to demonstrate both the source and the passion of his critique of pre-political individual rights. The agent of Schmitt’s foundational narrative is most adamantly not the solitary individual who must bargain and establish contracts with other solitary individuals in order to form political unions, but rather organized communities, social formations that we can imagine as patriarchal (or matriarchal) extended family structures in a state of nature that eventually establish their political existence by occupying and administering land in distinction from other communities endeavoring to do the same. If through communal land appropriation a constitution is formed, that is, a familial or other social formation is transformed into a political unity, then the individual has a status only within that community; therefore, what rights such an individual has derive not from “natural law” but from the “radical legal title” established by the community through the settlement and cultivation of the land. There is no “natural right” to private property, conscience, religion, and so forth, only the rights derived from the community, which may indeed include the right to property, conscience, and religion, depending on the sensibilities of “the people” who establish themselves as a political unity. If Jellinek’s reading of the American state constitutions is correct—if, by way of the initial enumeration of individual rights, the “creator” of the state (the individual) preserves its superiority over the state—then it can be said that on Schmitt’s reading, the creator of the state (the community) does likewise. In the former, the rights of the community as represented by the state are derived from the individual; in the latter, the rights of the individual are derived from the community. We can fill in the blanks in any number of ways, but no matter which way we turn, we are pitting putatively individual rights (so-called subjective or human rights) against the supposed common good (salus populi)—individual liberty against popular sovereignty, the self-determination of a person against that of a people. By the nineteenth century, this conflict was labeled the battle between the state and society.

The katychon is a figure found in 2 Thessalonians 2:6. He or it delays the advent of the Anti-Christ and thus the second coming of Christ. Schmitt believed that only by way of this figure do we have history and thus secular politics. See, for instance, Schmitt, Glossarium (1991a), 62–63, entry dated December 19, 1947.

The grammatical third-person singular is intentional and will be used throughout to distinguish “the people” as a political unity from “people” as a collection of individuals.

For Luhmann’s take on the state/society distinction, see Soziologische Aufklärung 4 (1987), 67–73, and, in English, Political Theory in the Welfare State (1990b), 168–70. Luhmann’s is the most bracing and intellectually satisfying account of modern society as it is, functionally efficient, warts and all, which is to say, the most satisfying account of why modern society has to be the way it is. I write this book despite what I have learned from Luhmann. Whereas Luhmann’s social theory provides an external description of the political, political theory provides a self-description. The outside observer can see what the insider cannot, but the insider—political theory—scratches the itch that observation cannot feel.

Patriarchy is assumed by Hegel, not explicitly argued for. Nevertheless, we must take note of its presence.

On the significance of Jellinek’s text, see the splendidly complex article by Duncan Kelly, “Revisiting the Rights of Man” (2004).

The term is of course taken from Rudyard Kipling’s famous children’s book, Just So Stories, which invents fanciful origins, primarily of animals. The phrase (with the hyphen) has been taken over by anthropologists as a label for the unverifiable and unfalsifiable narratives of a culture’s practices and their origins.

We note here “civilization’s” inextinguishable contempt for, or at least neglect of, nomadic peoples.

See, for example, Schmitt, Dialogues on Power and Space (2015), 48.

Theorizing State and Society

As political theorists and classical scholars well know, the idea of liberty was articulated quite differently in Greek antiquity than it is today. In Athenian democracy, citizens (non-foreign, non-slave adult males—a small percentage of the total population) were the true source of all political decisions, as they participated directly and often in open-air assemblies to discuss and make laws, set policies, hold leaders accountable, and even declare war or make peace. As M. I. Finley states, the members of the polis felt themselves to be members of a community (koinonia) “in which the bonds were not merely propinquity and a common way of life but also a consciousness of common destiny, common faith.” Educated by all Athenian institutions small (the family) and large (the political assembly itself), a young man gained a paideia (formation or Bildung), a sense of civic responsibility that fostered the virtues of public service (Finley 1985, 29–31). The distinction between the public and the private (the household) certainly existed, but refusing one’s public duties in favor of private pleasures was considered pathological. In the words of Thucydides: “We consider anyone who does not share in the life of the citizen not as minding his own business but as useless” (cited by Finley 1985, 30). Liberty, then, meant citizenship, the right and duty to participate directly in political decisions. Liberty meant integrating oneself in one’s community.

Finley, writing in the wake of the European and North American political protests of the 1960s and ’70s, offered this image of public participation in opposition to the “elitist” theory of democracy, which promotes a “de facto oligarchy of professional politicians” underwritten by “popular political apathy” (Finley 1985, ix).^[1] However partial and idealized such a contrasting view of the ancient political community may or may not be, it has served as an object of desire and nostalgia on many occasions. Although Schmitt spends little time on the virtues of the ancient Greek polis in his writings, the picture presented here of public duty unhindered by the “pathology” of private rights would surely have pleased him. More controversially perhaps, I believe that Walter Benjamin’s “white eschatology,” which longs for an unknown and unknowable yet thoroughly purged future,^[2] also trades on this Greek ideal. You will recall the basic structure of his 1921 “Critique of Violence.” A debased and perniciously instrumental “mythic violence” is opposed by “divine violence.” Subsumed under mythic violence is the legal order, characterized by the further distinction between lawmaking and law-preserving violence. Lawmaking violence is explicitly identified with constitutional law and thus with the modern state (Benjamin 1996, 248). If we look over Benjamin’s shoulder, we see the silhouette of Georges Sorel (to whom Benjamin refers repeatedly) and recognize the latter’s famous distinctions between force, represented by the power of the state, and violence, the explosive, cleansing, revolutionary destruction exercised by the general strike.^[3] Just as Sorel finds the need to make a firm distinction between an absolutely negative “force” and absolutely positive “violence,” defining the “object” of the former to “impose a certain social order” and the purpose of the latter to be “the destruction of that order” (Sorel 1999, 165–66),^[4] so Benjamin confronts the “perniciousness” of the “historical function” of “all legal violence” with its “destruction” that “becomes obligatory” (Benjamin 1996, 249). And just as Sorel believed that Marx’s “social revolution” would serve as an “irrevocable transformation” that “would mark an absolute separation between two historical eras” (Sorel 1999, 129), so Benjamin too believed that “on the abolition of state power, a new historical epoch is founded” (Benjamin 1996, 252). The agent of this fundamental transformation is the “pure immediate violence,” the “unalloyed violence” (252) that is divine violence. And almost as if carried away by a vision, Benjamin offers us a crescendo of “if/then” contrasts between the evil and its remedy. “If mythic violence is lawmaking, divine violence is law-destroying; if the former sets boundaries, the latter boundlessly destroys them; if mythic violence brings at once guilt and retribution, divine power only expiates; if the former threatens, the latter strikes; if the former is bloody, the latter is lethal without spilling blood” (249–50). Whatever else these contrasts may or may not tell us, we seemingly know one thing—the lawmaking power of a state is utterly reprehensible and therefore eminently dispensable. Our entire political way of being is unequivocally rejected.

One can imagine divine violence to come quite literally from God (göttlich, “godly,” is the German word for “divine”). In fact, the world was washed clean once, save for Noah, his wife, and their menagerie. Alas, the mythical reappeared and once again needs to be expunged. When next the divine flexes its muscle, Benjamin seems to promise, the world will be washed as clean as it was then, only this time—perhaps—the perfect violence of God’s wrath will leave behind the perfect peace of a fundamentally new historical order (Benjamin 1996, 251–52). What will be wiped away is made beautifully clear in the final three sentences of the text, and I do mean beautifully, because the sound pattern of this final utterance reverberates crisply in the mind. Let me first cite the passage in German and then give you Jephcott’s translation. “Verwerflich ist alle mythische Gewalt, die rechtsetzende, welche die schaltende genannt werden darf. Verwerflich auch die rechtserhaltende, die verwaltete Gewalt, die ihr dient. Die göttliche Gewalt, welche Insignium und Siegel, niemals Mittel heiliger Vollstreckung ist, mag die waltende heißen” (Benjamin 1980, 203). Here now is the translation: “But all mythic, lawmaking violence, which we may call ‘executive,’ is pernicious. Pernicious, too, is the law-preserving, ‘administrative’ violence that serves it. Divine violence, which is the sign and seal but never the means of sacred dispatch, may be called ‘sovereign’ violence” (Benjamin 1996, 252).

What the translation cannot capture, through no fault of the translator, is the repetition of sounds that alerts us first to the repetition of meaning (the repetition of verwerflich, which Jephcott translates as “pernicious”), then relationship (rhyming schaltende and erhaltende with [mythic] Gewalt), and finally the stress on the grand, redemptive distinction between, on the one hand, the violence that is so pernicious it needs to be cast aside, thrown away (as the root werf in verwerflich indicates), and, on the other hand, the violence that will ultimately transport us to a brave new world. That guiding distinction is carried by the root walt, which appears in three words: the noun Gewalt (violence) and the adjectival forms of verwalten (to administer) and walten (to rule). One can almost hear—hell, one can almost smell—the redemptive violence that that simple root, walt, is subjected to as it is purged of its impure prefix. When divine violence comes to annihilate the juridical-legal order that is mythic violence, both schaltende (directive or executive) and, above all, verwaltete Gewalt (administrative violence) are destroyed. What remains is the waltende or ruling violence. Thus the final distinction on which the text rests is the one between verwalten—“to administer”—and walten, which, by shearing off the prefix, Benjamin makes to mean a form of unmediated rule that rests “sovereignly,” as the translator has it, in its non-instrumental dominion over the world. It ad-ministers nothing; it rules, it “ministers” purely and simply. Accordingly, rule without administration might well fit the picture of the Greek polis. What need for a bureaucracy when all citizens assemble to govern collectively? What need for supply chains, timetables, delivery systems, public transportation, and all the rest when one’s creature comforts are provided for by the women and slaves of the household or the foreigners unloading the ships in the harbor? Neither subject nor citizen, these creatures remain, figuratively speaking, outside the city walls. Within the walls, direct, immediate rule prevails.

Hegel too was fond of this Greek exemplar. Judith Shklar has referred to his Phenomenology of Mind as a “work of elegiac re-membering, a re-integrating of the past into the present and that in a mood of profound sadness.” Yet he knew this past to be irretrievable, and that simple if disdained prefix “ver-” can stand for the reason why. What disturbs this blissful image of the highest, collective purpose—the realm not of “mere” or “bare life” (bloßes Leben), as Benjamin (and then Agamben) would have it, but of a “just life” (gerechtes Leben)^[5]—is the emergence of civil society, the system of needs, of economic self-governance under the protection of law (property rights), as well as social policy and policing, in short everything that die verwaltete Gewalt introduces into our lives. Hegel is credited with being the first to use civil society (bürgerliche Gesellschaft) to mean not the political but the social, primarily the economic. It is this formation of the social that Hegel explicitly deals with in his Philosophy of Right. Let us, then, explore some of this Hegelian terrain.^[6]

Georg Wilhelm Friedrich Hegel

“Civil society is the difference which intervenes between the family and the state, even if its full development occurs later than that of the state” (Hegel 1991, §182).^[7] The Greek polis knew only family (the oikos or household) and state. The spirit of individuality did emerge in the polis, as the figure of Socrates demonstrates. It is he who questions the conventions of state ethics, suggesting that the thinking individual can find, through right reason, the standards for truth that transcend the conventional wisdom upon which the state relies. My wording, of course, deliberately recalls Leo Strauss’s argument concerning the discovery of nature. Despite the enduring legacy of Socrates’s challenge, this initial intrusion of the individual conscience in ancient Greece is successfully repressed by the state, only to flourish later as a result of Christianity, especially Protestant Christianity. St. Paul, who preached the law written in our hearts, succeeds where Socrates initially failed, and the spirit of individuality, to borrow from Weber, arises anew as the unintended consequence of the Christian, eventually Protestant, ethic, for, as the “spirit of capitalism,” the spirit of individuality in the modern world is the ethic of economic self(ish)-interest that governs civil society.^[8] That ethic has nothing to do with the Sittlichkeit (which is informed by convention and accepted patterns of belief) that informs both the ancient family and state. Civil society is therefore the realm of individuation. The person—or better, personality—emerges from the familial sphere to pursue his self-interest in civil society.^[9] The state is presupposed by society, because of both its historical but also logical priority. It is within the ethical community of the state that the individual is reintegrated by being raised out of his purely private (bourgeois) interests and concerns and transformed into a public person, a citizen, a member of the political unity of a people.

What makes the human being a human being is free will. What makes free will a social and not merely psychological phenomenon is property. Through property, a person gives “himself an external sphere of freedom.” The rational function or “aspect” of property, therefore, cannot be identified with or limited to the “satisfaction of needs”; rather, “not until he has property does a person exist as reason” (Hegel 1991, §41). Put another way, “it is only as owners of property” that two people “have existence [Dasein] for each other” (Hegel 1991, §40). Civil society is therefore the sphere in which individuals interact on the basis of their self-interest. Ideally, civil society becomes thereby the training ground for rational cooperation. Having studied Adam Smith and the other English/Scottish theorists of commerce, trade, industry, and the market, Hegel adopts and adapts the paradoxical dictum that the pursuit of private vices (greed) leads to the public good (mutual satisfaction of needs and interests). The virtue of civil society resides in the fact that although “each individual is his own end, and all else means nothing to him,” said individual also comes to the realization that “he cannot accomplish the full extent of his ends without reference to others.” To achieve selfish ends, cooperation is imperative. “Through its reference to others, the particular end takes on the form of universality, and gains satisfaction by simultaneously satisfying the welfare of others” (§182). In this way, a “system of all-round interdependence” is established, “so that the subsistence and welfare of the individual and his rightful existence are interwoven with, and grounded on, the subsistence, welfare, and rights of all.” This Hegel calls the “external state, the state of necessity and of the understanding” (§183). We would call this external state the liberal state in which the state exists for no other reason than to promote and protect individual self-interest. For Hegel, however, individuals have the capacity to move beyond such an instrumental understanding of collective behavior. By realizing that the fulfillment of their particular interests is best achieved through collaboration, individuals begin to glimpse the outlines of the universal, namely the collective interest of the political community. This initial glimmer is reinforced by education, which is both

By way of education, then, “the subjective will obtains objectivity, . . . that objectivity in which alone it is for its part worthy and capable of being the actuality of the Idea” (§187). To put all this more mundanely and with at least plausible accuracy, the realm of civil society removes the individual from the clutches of the family and becomes, at first glance, the arena of free, unhindered, even aggressive pursuit of self-interest. Soon, however, one comes to realize that to satisfy one’s desires one must cooperate, even collaborate with others, indirectly serving their interests as they indirectly serve yours. One senses thereby the possibility of a form of ethical life (Sittlichkeit) that is not “natural,” not rooted in the love, duties, and customs that attend family life, but rather requires self-conscious, intellectual (geistig, which can be translated both as “spiritual” and “intellectual”) reflection. Such a process of intellectual and spiritual recognition of an ethical life that supersedes that of the family and allows for the individuation that has been achieved in civil society is furthered by education. What awaits one on the other side of this process is a new denaturalized home, a higher community into which individuals will have been thoroughly integrated. That new home, “the actuality of the ethical Idea” (§257), is called the state.

But to repeat, the state is something categorically different from civil society. “If the state is confused with civil society and its determination is equated with the security and protection of property and personal freedom, the interest of individuals as such becomes the ultimate end for which they are united; it also follows from this that membership of the state is an optional matter” (Hegel 1991, §257). And to repeat again, such an instrumental view of the state coincides with the liberal state, the state that reduces itself to catering to individual interest. Having outgrown, as it were, his infatuation with the Platonic ideal (which he identifies with the Athenian actuality), Hegel now embraces the intrusion of the individual, yet reintegrates him in the new, modern ideal. To make this ideal actual (and no ideal exists except in its actuality), the instrumental idea of the state must be thoroughly rejected. As an adamant opponent of the contract theory of state formation, Hegel sees a higher purpose for both the individual and the state. “Since the state is objective spirit, it is only through being a member of the state that the individual himself has objectivity, truth, and ethical life. Union as such is itself the true content and end, and the destiny of individuals is to lead a universal life; their further particular satisfaction, activity, and mode of conduct have this substantial and universally valid basis as their point of departure and result” (§258). And to drive the point home with yet another twist of the Hegelian screw:

Like the family, the state is an institution based on ethical life, but unlike the family, it achieves this condition through reflection stimulated by education, and like civil society, the state accommodates the particularity of individuals but does not restrict them to their particular needs and desires. It is in the state—the political community—that the human becomes fully human.

Despite the language used, the point is pretty simple. Humans are fully human only in concourse with other humans. Most often, social exchange is selfish, competitive, and at times even brutal. Nevertheless, by way of what Kant called “unsocial sociability” (the unintended beneficial consequence of asocial behavior), civil society inadvertently, and then directed by design (education), trains humans to think of themselves as belonging to a higher unity. Hegel characterizes this higher unity—the state—in a number of different but complementary ways, as, for instance, “the ethical whole, the actualization of freedom,” and as “the spirit which is present in the world and which consciously realizes itself therein”—in short, as “the march of God in the world” (Hegel 1991, §258, Addition [G]). The trick is to harmonize particular interest with the common good, such that “duty and right are united within the state in one and the same relation” (§261). On the common (Kantian) view, “the abstract aspect of duty consists simply in disregarding and excluding particular interests as an inessential and even unworthy moment” (§261). Duty, in other words, is most often performed in spite of, not in unison with, inclination: To fulfill my duty, I must do x though I would rather do y. To counter this Kantian view, Hegel postulates the harmony of duty and interest.

The natural, even imposed duty of the child in the family is raised, once that child reaches maturity, to the duty of the citizen in the ethical community of the state, a duty now “naturalized” by reason to be in perfect harmony with that person’s deeply felt right to individuality.

All this sounds lovely, even if we have lost the capacity to imagine what such a community could possibly look or feel like. The classical portrait of an ethical communal life that Hegel paints with such finely achieved symmetry far exceeds any sketch offered by Rawls’s “original position” veiled by ignorance, or even Habermas’s more ambitious attempt to imagine a neo-Kantian (Hegel would say “abstract”), discursively achieved consensus. Grounded ultimately in contract theory, such functional and procedural would-be solutions to the ills of splintered individuality betray the failure of Hegel’s near mystical vision. But perhaps we should not be so hard on ourselves. Even Hegel seems to have known better, even he hedges his bets in the above cited passage, with his “must somehow attain,” “must accrue,” and repeated use of “should.” There is a serpent, even in Hegel’s garden, and that serpent’s name is poverty.

According to Hegel, the causes of poverty are manifold, the remedies, alas, limited. There is the “arbitrariness” of moral turpitude on the part of parents who refuse to provide an education for their children or impoverish their family by their extravagance. As antidote, “civil society”^[10] has the obligation to provide public education and compel parents to send their children, have them vaccinated, and otherwise serve as “guardian” (Hegel 1991, §239, 240). In addition to arbitrariness, we find that “contingent physical factors and circumstances based on external conditions . . . may reduce individuals to poverty.” Here Hegel points to structural inequalities grounded in civil society itself, which are in general laid out as follows.

Marx would later see in this division of labor^[11] the alienation of the worker from his work and would look to the revolutionary self-emancipation of civil society itself, abolishing the state that, in his view, is the mere captive tool of capital. Hegel has no faith in revolution and relies on the state to remedy the situation, but he runs head first into a conundrum. It is property and the work by which property is obtained and increased that makes the human individual fully human. Yet civil society’s “system of needs” works in such a way as to deprive a whole class of people of property and condemn them to a type of unfulfilling labor that impoverishes them not only materially but also spiritually, turning them into a “rabble.” The state, as guardian, could and should intervene by providing a variety of welfare measures, but the state cannot provide property and fulfilling work. The latter is hampered by the dynamics of capitalism itself. Again, it is worthwhile to have Hegel’s own words on the matter, for he nicely spells out the double paradox involved, the first concerning welfare, the latter the double-edged sword that is labor.

The twofold problem of a simultaneous excess and deficiency of wealth seems to me a felicitous description of the modern, liberal, capitalist system. The Marxian remedy has repeatedly failed to convince us. Hegel’s own remedy, the export of excess labor—that is, colonization (§248)—did little or nothing to ease the plight of the nineteenth- and early twentieth-century proletariat. In other words, neither Hegel nor Marx had remedies for the structural causes of poverty; thus neither their idealizations of, on the one hand, the fully realized state nor, on the other hand, the self-emancipated society have been achieved. We have been and still are left with reform and the imperfection that reform implies. Which means we are left with the generation of non-Marxian Hegelians and their compromises, or rather, with one in particular—Lorenz von Stein.

Lorenz von Stein

Who was Lorenz von Stein?^[12] Born in 1815, Stein was almost an exact contemporary of Marx (born in 1818) who ploughed some of the same intellectual fields. Like the young Hegelians (including Marx), Stein dedicated his early years to studying the political and social movements in France, having the advantage of a stipend that allowed him to live in Paris. In 1842 he published his findings under the title Der Sozialismus und Communismus des heutigen Frankreichs (Socialism and communism in contemporary France), in which he introduces us to the world-historical significance of the proletariat. A third, thoroughly revised and expanded edition of that work came out in 1850 in three volumes under a new title, Geschichte der sozialen Bewegung in Frankreich von 1789 bis auf unsere Tage. A severely abridged translation into English, The History of the Social Movement in France, 1789–1850, appeared in 1964 and was greeted with resounding silence; for unlike Marx and his collaborators, who, after learning from him, dismissed him as a bourgeois intellectual, Stein offered what we might call a reformist, not a revolutionary, response to the social inequality of industrial society and the suppression of the proletarian class.^[13] Like his Marxian contemporaries, he recognized the importance of society, both as the realm of individual freedom and the arena of economic interest and social class. However, he never nullified the importance of the role that the state should take in mollifying social and economic inequalities and redressing the grievances of exploited classes. That the state could come under the control of the landed gentry or capitalist plutocrats he never denied; nevertheless, that the state should and has the ability to assume an independent role vis-à-vis society and its various classes was the basis of his social and political theory. Rather than waiting for the cure for social inequality to arise almost homeopathically from society itself in the form of the final subject of history—the proletariat—Stein postulates the need of the state to assert, or rather reassert, its authority in its constitutively endless battle with social forces. And indeed it is from Stein that I have borrowed my bellicose imagery.

Though greatly influenced by German Idealism, particularly Fichte and Hegel, Stein succumbed neither to a teleological view of an eventually redeemed history nor to the temptation to resolve contradictions in a supposedly higher unity. His central irreconcilable contradiction was the one that Hegel bequeathed to him, the duo we have been investigating, state and society. To understand the antagonism of their relationship we have to start with a deeper conflict, the one between physical limitation and intellectual ambition that cleaves the human individual in two. As individuals, we are all able to conceive of something beyond physical necessity, an intellectual or spiritual (geistig) vocation or destiny, but as individuals, as solitary bodies and solitary intellects, we cannot achieve what we can conceive. We need to use the bodies and intellects of others, which of course is why we live in a group of similarly constituted individuals, all riven by the same disjuncture. Our mutual dependency, however, leads not to harmony, as Hegel had hoped, but to exploitation. The group replicates the body/soul tension with a war between workers, who own nothing except their bodies, and those who own everything but do not work (Stein 1856, 27–28). We know the name of this group: society (Stein 1921, I. 40). And we can state its principle: interest (Stein 1921, I. 43; 1964, 48–50).^[14] Seen from the perspective of the solitary individual, society is the realm of individual self-actualization. Seen from the perspective of free, contesting and competing individuals, society is the arena in which self-interested individuals and associations maneuver for competitive advantage. Society, then, is the epitome of both individual freedom—which, as Hegel had already theorized, requires the acquisition of property—and servitude, which results from the failure to acquire property. In a very real and ugly way, servitude is the consequence of individual, self-serving freedom. The invariable outcome is the division of society between the educated, property-owning (in industrial society: capital owning) classes and the un(der)educated and impoverished workers (proletariat). Society, that great vehicle of subjective rights and liberty, ends up embodying the principle of domination and servitude.

If interest is the principle that guides the activities in society, the principle of the state resides in freedom. In a sense, the state is the individual writ large. Stein uses the term “personality” to describe the individual human who has become a self-determining being by virtue of owning property and having had an education, the famous German alliterative attributes of Besitz and Bildung. As a similar singular personality, the state represents the unity of the will of the people, the political unity of the community. The state therefore represents the welfare of the whole as a collective singular, a subject or “moral person,” and not the particular interest of individuals, associations, or political parties. Whereas society is governed by both natural and coerced economic inequality (the root of all other inequalities), legally each individual is an equal member of the state. In this way, the state incorporates the idea of the freedom of the political community as a whole. Legal equality and the idea of a collective freedom based on the admittedly imperfect state guarantee of individual liberty, Stein believed, could best be protected in a constitutional monarchy, for in such an organization of political order, a parliament (based on limited or eventually universal adult suffrage) could advocate for the interests of the varied associations or classes of society, and the hereditary monarch could serve as a neutral power; with no special stake in the peculiar well-being of any particular party, a monarch would be capable of making decisions regarding the good of the whole, the fabled salus populi. The actual power of this putatively neutral arm of the state—that is, the truly active arm of the state, the instrument that executes the will of the people as a collective singular—turns out to be the Beamtentum, the professional, disinterested, depoliticized (in a party-political sense) administrative bureaucracy, Benjamin’s much loathed and scorned Verwaltung. Indeed, the professional administrators of public policy could be called the frontline soldiers of the perpetual war that the state wages against society, or the first line of defense against the armies of social interest, for, to repeat, it is a perpetual war, with winners and losers. He who rules, Benjamin’s waltende Gewalt, does not dismiss but rather relies on the unfairly impugned verwaltete Gewalt, because to rule is also to fight.

And there is good reason to rely on the various apparatuses of bureaucratic governance. Simply and obviously put, the world is corrigible but not perfectible. In a short passage quite early in the work I have been drawing on, The History of the Social Movement in France, Stein implicitly rejects Hegel’s ideal state because, even more than Hegel, he focuses on the irresolvable conundrum of poverty. He also dismisses the utopian fantasies of the French socialists and communists, and (by the third edition of 1850) quite likely the prophetic exhortation of The Communist Manifesto as well. I have mentioned the parallelism of the notion “personality.” As part of a community, the fully formed individual is a personality because of the freedom he enjoys, which is reflected in the possibility of self-determination (with the help of, if not on the backs of, others). That self-determination in turn dictates the individual’s interest. However, the collection of personalities we call society cannot itself be a personality, because society has only conflicting, not common, interest. What gives commonality to this collectivity is the state, which represents the common interest of the community, its political unity, and thus collective freedom. In the war between state and society, between common and individual interest, the total victory of the state would ideally give to the community as a whole, state and society, a common interest, and individual and communal freedom would coalesce, as Hegel prophesied. Yet, this “all-for-one-and-one-for-all” dream would be impossible, Stein says. Only the Kingdom of God could harmonize self and collective freedom, and that kingdom cannot be found on earth. Unfortunately, the opposite, the total conquest of the state by society is possible, and he gives that outcome a name: Death (Stein 1921, I. 32; 1964, 51). There is no perfected community, but there are dead communities, states that have been captured by the particular socioeconomic interests of the ruling classes who have universalized the unrelieved domination of the strong over the weak (Stein 1921, I. 68; Stein 1964, 65). Consequently, in the political/social universe we inhabit, we can never be redeemed (neither by evolution nor revolution), but we can live, if we work at it.

For Stein, working at it meant, among other things, writing an eight-part theory and practice of administration (Verwaltungslehre) in ten volumes. Ironically, his fame outside of the German-speaking world, such as it is, rests largely on his technical work. Toward the end of his life he became the object of pilgrimages—such is the word used by the pilgrims themselves—from governmental officials and academics in Japan and China, for in both countries Stein provided the model for administrative modernization.^[15] Within Germany, he is currently seen as something of a prophet of the so-called Sozialstaat—roughly speaking, the post–World War II welfare state—as a kind of compromise between, on the one hand, a radically libertarian, laissez-faire style of capitalism that could be seen as the total conquest of the state by society and thus death, and, on the other, a fully planned communist economy, which also would be seen as death, the death that results from attempting to achieve the unachievable. I have no desire to investigate the making of the modern Sozialstaat but wish only to ask the reader to keep in mind the components of state rule that Stein emphasizes when we return to Schmitt.

Society’s part in government is served by parliament, the advocate for both individual liberty—which Stein in no way wishes to dismiss—and for all social interest groups in general. The monarch is seen as a neutral power because he or she, living apart from both the world of capital and of work, has no social interest. Stein’s view of the neutral monarch is modeled on Benjamin Constant’s championing of the hereditary monarch in a constitutional setting. Constant, writing in the immediate post-Napoleon France and therefore before the full impact of the rise of social movements had been felt, saw the monarch as maintaining the balance of governmental powers such that no one branch—the ministers, the judiciary, or parliament—would come to dominate.^[16] Stein’s focus is on the balance of social (not governmental) powers, making sure that the state may compensate for the oppression the dominant class exercises over labor, whether peasant or proletariat. Finally, the bureaucracy is the tool the monarch uses. This may strike us as odd, but it shouldn’t. First, in the German states, especially Prussia and thus in united Germany after 1871, the famed Beamtentum (bureaucracy) was a much admired, if also a greatly mocked, institution. Its strongest feature was its professionalism, which enabled it, in theory, to distance itself from party-political attachments and economic partiality. The German historian of the rise of the modern bureaucratic state, Otto Hintze, notes that it was liberal constitutionalism in the nineteenth century that triggered a more concentrated response by professional administrators to advocate for the state and show a united front against social pressures.^[17] The Beamtentum, in other words, became even more conscious of itself as an agent of the state in this newly hostile environment. Bureaucrats, whose upper echelons, primarily jurists, were recruited from the university and installed for life, thus not subject to the shifting vagaries of party politics, also had little or no connection to the business world, even being forbidden to marry into powerful and influential commercial families. They were seen, then, as a relatively independent force and not the tools of party interest or ideology, but they served more like a conservative roadblock. Clearly, individual bureaucrats and the monarchy itself were not independent of the prevailing prejudices of society at large, and neutrality as a standard could at best be only partially met. But one understands the difference between a professional and a political bureaucracy when one remembers the nineteenth-century American coinage “To the victor go the spoils,” which was meant to describe the scramble for political patronage after each election.

Both Hegel’s state/society dichotomy and Stein’s reformist articulation of it had a wide-ranging impact between 1840 and World War I. Before we move on to its reconfiguration in the early twentieth century, it is worth glancing at an articulation of the opposite sentiment, the advocacy of the total victory of society over the state, precisely because variations of this advocacy predominated in the early years of the twentieth century and agitated Schmitt to no end.

Franz Oppenheimer

On the presupposition that an ideal unification of state and society is, pace Hegel, impossible, Stein advocates for a rough equilibrium between the interest of the political community as a whole and the gratification of individual pursuits. Even strong advocates of the Rechtsstaat (liberal rule-of-law state) like Rudolf von Gneist (to whom Schmitt often referred) accepted Stein’s basic insights and acknowledged the tension.^[18] There were those, however, who saw the state in strictly negative terms and therefore argued for complete social emancipation. In The State,^[19] Franz Oppenheimer presents us with a genealogy of the state from its origins as a predator or robber state to its manifestations as the feudal, absolute, and now constitutional state. Despite the transformations, the modern state has remained at heart the robber state of old. In essence, Oppenheimer argues that the owners of the means of production (and there is no reason not to use that common term now), whether those means are land or capital, invariably capture the machinery of the state and use it for their own purposes. What Stein described as a possibility, one to be avoided, Oppenheimer declares an inevitability. In particular, Oppenheimer seizes on the administrative bureaucracy (Beamtenschaft or, in the English translation, officialdom) as the chief culprit. He acknowledges the virtues of the ideal of a nonpartisan administrative apparatus working to ameliorate the exploitation of the workers and peasants by the owning classes, but declares that such an ideal has never been and can never be actualized. Instead, under the pressure of social interests the bureaucracy is at best unconsciously brought into the service of the ruling classes. After all, the members of the vaunted Beamtentum are by and large university-trained jurists and thus of the same class as their social counterparts in power. They cannot help but share the same class prejudices, even if they do not directly take part in the predatory activities of their compatriots. He does make some concessions, however. For instance, the bureaucracy in poorer states—like the Prussia of old (presumably the seventeenth and eighteenth centuries)—whose members live on modest means, is more likely to oppose the pressures and excesses of wealth, and a hereditary monarch, because of his relative lack of concern with popularity when compared to elected leaders, can exert a modest pressure on wealth. In the end, however, virtually all power lies in the hands of the plutocracy.

Oppenheimer’s suggested remedy is not the reform but the elimination of the state. The root cause of economic inequality, he states, are “free laborers,” those peasants who have been dispossessed or driven off the land and into the cities by the large landowners and thus become the surplus labor that keeps wages down and dooms the effectivity of strikes. The cure is not state tinkering but the breakup of landed estates and the distribution and working of small plots of land by the multitude. In this way, the urban proletariat will not be kept down by what Hegel referred to as the “rabble,” Marx’s famously despised Lumpenproletariat. Indeed, Oppenheimer’s cure sounds similar to Hegel’s, as it involves emigration to the various colonies and former colonies over the world. In particular, he praises the US state of Utah and the community of Vineland, Iowa, for limiting the acreage a single person could own, and suggests that New Zealand could also serve as a refuge. Clearly, these idiosyncratic examples are meant to be models for global land reform, yet they still strike the contemporary reader as fantastical, not because the plight of the peasantry the world over has improved, but because the world has become (or is still becoming) largely urban and industrial, which no amount of land subdivision could possibly accommodate.

The point of all this is to show that the state/society distinction lends itself to a variety of putative remedies for those who worry about economic inequality and the immiseration of entire classes or populations. Bracketing the “realist” position for the moment, there are two ideal solutions: the pure state, built on a Greek or Hegelian model, and the pure society, devoid of state depredation. At the beginning of the twentieth century, the latter view seemed to gain strength, even if it was not always presented as a utopian solution to economic inequality. There was a kind of giddy, if momentary, faith in the disappearance of the state, a belief that structures of rule and domination could be replaced by impersonal, self-justifying, and self-
regulating means of governance that dispensed with the perceived ugly, arbitrary decisions of personal power. There was no state, some said, only legal systems to which the tag was inappropriately applied. Here we might mention figures like Leon Duguit, Hans Kelsen, and Hugo Krabbe.^[20] Each wishes to replace personal authority (e.g., of a monarch) and state power with legal authority, pure and simple. Often the target is precisely the state/society dualism that, as seen from the perspective of law (i.e., society), is considered to be anachronistic and particularly “Germanic.” Or the state was thought of as just the political association, one of many such associations—churches, labor unions, business or commercial groups—and no more important than these. Here is meant the English school of pluralism, represented by G. D. H. Cole, John Neville Figgis, and Harald Laski, along with Guild Socialism.^[21] English pluralism of the time was inspired and abetted by a highly selective reading of the nineteenth-century German scholar Otto Gierke by the noted English jurists and liberals F. W. Maitland and Ernest Barker.^[22] Or the state was slated to wither away upon the final self-emancipation of civil society. Oppenheimer, who called himself a liberal socialist and believed in inevitable evolutionary change, is our witness for that position. And not least, as we have already seen, there was the eschatological mode of wishing the world washed clean of state violence, represented by Sorel, Benjamin, and their many latter-day saints.

Carl Schmitt tirelessly bemoaned this, to him, misguided faith in the unqualified beneficence of social institutions and associations, sometimes with a touching pathos. In an extended note in the final section of The Concept of the Political, Schmitt turns his attention to Oppenheimer in particular. In Oppenheimer, Schmitt claims, one can find “the best example of this polarity of state and society,” with the twist, of course, that in his work society’s “execution of the state” is celebrated (Schmitt 2007, 76). With Oppenheimer we no longer stand on Hegelian ground. Rather, “whereas Hegel’s systematized conception of the German state in the nineteenth century considered it to be a realm of morality and objective reason high above the appetitive domain of egoistic society, the value judgment is now turned around. Society as a sphere of peaceful justice now stands infinitely higher than the state, which is degraded to a region of brutal immorality” (77). Against the temper of the age, Schmitt declares the evaluative reversals of Hegel’s polarity to be impermissible. Hegel and Stein (who is also mentioned in this section), as we have seen, found both state and society to be indispensable, each charged with an ethical core, even if in the end it was up to the state to strike the right balance. In this spirit, Schmitt bemoans the demonization of the state and notes that the stark polarity could just as easily (and perhaps, by implication, just as impermissibly) go the other way around. “The connection of politics with thievery, force, and repression is, in the final analysis, no more precise than is the connection of economics with cunning and deception.” But then he seems seduced and immediately elaborates that latter connection, precisely (or so it seems) because the economy has become the strongest weapon against the mission of the state to protect the political community. First he notes the near identical spelling of terms. “Exchange [Tauschen] and deception [Täuschen] are not that far apart.” And then comes a passage that could easily come out of the darker moments of Stein’s musings about the death of a political community. “A domination of men based upon pure economics must appear a terrible deception if, by remaining nonpolitical, it thereby evades political responsibility and visibility. Exchange by no means precludes the possibility that one of the contractors experiences a disadvantage and that a system of mutual contracts finally deteriorates into a system of the worst exploitation and repression.” It is precisely to combat such a situation that the state—that is, “politics as the sphere of honest rivalry”—must step in and protect the unity of the political community (77).

The note on the state/society distinction that was just examined is embedded in section 8 of Concept, the first word of which is “Liberalism” (Schmitt 2007, 69). Liberalism stands for society and all its ills, economic or otherwise. Schmitt identifies Oppenheimer as radically liberal in his hostility to the state and politics. The antithesis of liberalism is democracy. If in the early 1920s democracy still marked the negative moment of modernity for Schmitt (e.g., Schmitt 1985b), by at least 1926 (Schmitt 1985a, 1–17) Schmitt started working with the antithesis between democracy and liberalism as a reworking of the old Hegelian dichotomy—or, more to the point, Stein’s adaptation of the Hegelian dichotomy. Democracy equals the political, the political community, and thus the state; liberalism equals the apolitical, the “appetitive” individual, and thus society. There is no doubt on which side of this divide Schmitt stands.

Finley refers to Joseph Schumpeter’s Capitalism, Socialism, and Democracy ([1942] 2008), but the term “oligarchy” also signals the earlier work by Robert Michels, Political Parties: A Sociological Study of the Oligarchical Tendencies of Modern Democracy ([1911] 1962).

Agamben, State of Exception (2005), 57.

I surmise that Benjamin’s distinction between the mythic and the divine is partially (but only partially) motivated by the lack in German of the verbal distinction between “force” and “violence” that both French and English have.

See also: “A distinction should be drawn between the force that aims at authority, endeavouring to bring about an automatic obedience, and the violence that would smash that authority” (Sorel 1999, 170).

See Benjamin, “Critique of Violence” (1996), 251, and Gesammelte Schriften (1980), 201–2.

For research on Hegel’s distinction between state and society, see the essays collected in Pelczynski, The State & Civil Society (1984); see also Riedel, Between Tradition & Revolution (1984), 129–56, and Hardimon, Hegel’s Social Philosophy (1994), 174–227. More generally see the essays collected in Pippin and Höffe, Hegel on Ethics and Politics (2004).

References are to paragraph numbers, not page. In all citations of Hegel I have deleted the bracketed additions and references to Nisbet’s translation. For our purposes they are not necessary.

The passage from Paul reads: “For when the Gentiles, which have not the law, do by nature the things contained in the law, these, having not the law, are a law unto themselves: Which shew the work of the law written in their hearts, their conscience also bearing witness, and their thoughts the mean while accusing or else excusing one another” (Romans 2:14–15). The reference to Weber is of course to his The Protestant Ethic and the “Spirit” of Capitalism (Weber 2002 and 2011).

The use of the masculine pronoun is both conventional and historically appropriate, for in the early nineteenth century it was rare for a non-property-owning, poorly educated “angel of the house” (to use Virginia Woolf’s phrase) to achieve the status of personhood as Hegel defines it.

10.

An odd choice of agent on Hegel’s part, for it is really the state, through taxation, that provides, for instance, for public education. See §239, Addition (H, G), in which the state is explicitly mentioned.

11.

See Hegel’s discussion of division of labor in Elements of the Philosophy of Right (1991), §290.

12.

For an introduction to Stein’s works in English, see Böckenförde, “Lorenz von Stein as Theorist of the Movement of State and Society towards the Welfare State” (1991); Kästner, “From the Social Question to the Social State” (1981); Pasquino, “Introduction to Lorenz von Stein” (1981); Sluga, Politics and the Search for the Common Good (2014), 91–94; and Mengelberg’s lengthy introduction to Stein, in Stein’s History of the Social Movement in France, 1789–1850 (1964). In German, there is no lack of secondary literature. I mention only a few, in alphabetical order by author/editor: Blasius and Pankoke, Lorenz von Stein (1977); Böckenförde, Die verfassungstheoretische Unterscheidung von Staat und Gesellschaft als Bedingung der individuellen Freiheit (1973); Grünfeld, Die Gesellschaftslehre von Lorenz von Stein (1908); Koslowski, Zur Philosophie von Wirtschaft und Recht (2005); Koslowski, Lorenz von Stein und der Sozialstaat (2014); Schnur, Staat und Gesellschaft (1978); and Vogel, Hegels Gesellschaftsbegriff und seine geschichtliche Fortbildung durch Lorenz Stein, Marx, Engels und Lasalle (1925). For a more general overview of the state/society distinction from Plato to neoliberalism, see Koslowski, Gesellschaft und Staat (1982). For a different view, in which the political, as social and protest movements, make an important impact on (civil) society, see Cohen and Arato, Civil Society and Political Theory (1992); they do not mention Stein.

13.

For Anglophone analyses and critique of Stein during the heyday of the resurgent interest in Marx, see Marcuse, Reason and Revolution (1960), 374–88. Dupré, The Philosophical Foundations of Marxism (1966), 78–79, and Tucker, Philosophy and Myth in Karl Marx (1961), 114–17, 154–55, emphasize Stein’s influence on Marx; Avineri, The Social and Political Thought of Karl Marx (1968), 53–56, and Hook, From Hegel to Marx (1962), 199, deny it.

14.

Because the translation has been so radically abridged (even at the sentence level), I will cite the German original and the general location in the translation if the exact phrase or sentence is not available.

15.

See Daw-Yih Jang, Kuo-Ching Hsu, and Stefan Koslowski, “Lorenz von Stein und China,” in Koslowski, Lorenz von Stein und der Sozialstaat (2014), 183–220.

16.

See Constant, The Political Writings of Benjamin Constant (1988), 183–93.

17.

See Hintze, Beamtentum und Bürokratie (1981), 16–77.

18.

See, for instance, the opening chapters (pp. 1–37) of Gneist’s Der Rechsstaat und die Verwaltungsgeschichte in Deutschland (1879), but also the critiques of nineteenth-century Prussian administrative reform in chapter XI (278–320).

19.

German original, Der Staat, 1912; English translation, 1914. Here I summarize the English translation of Oppenheimer’s The State (1914), 257–73.

20.

Duguit, “The Law and the State” (1917), and Law in the Modern State (1919); Krabbe, Die Lehre der Rechtssouveränität (1906), and The Modern Idea of the State (1922). We dealt with Kelsen’s argument in part I.

21.

For an overview and appraisal, see the anthology edited, with a valuable introduction, by Paul Q. Hirst, The Pluralist Theory of the State (1989). For a roughly contemporary account of Guild Socialism, see Carpenter, Guild Socialism (1922).

22.

See Gierke, Political Theories of the Middle Ages (1958, with introduction by Frederic William Maitland); Natural Law and the Theory of Society (1957, with introduction by Ernest Barker); and Community in Historical Perspective (1990, with an introduction by Antony Black). See Maitland, State, Trust, and Corporation (2003). See also Black, Guild and State (2009), esp. 210–19, and the exceedingly helpful Runciman, Pluralism and the Personality of the State (1997).

Liberalism

With more than just a hint of impatience, the Italian political theorist Norberto Bobbio firmly insisted that modern democracy is necessarily formal and procedural. “I have stated on other occasions,” he wrote in the mid-1980s, “and I will never tire of repeating it, that it is impossible to ever understand anything about democracy until it is realized that a democratic system nowadays signifies first and foremost a set of procedural rules, among which majority rule is the main, but not the only one” (Bobbio 1987, 63). Perhaps “nowadays” is the key word in that proclamation, because Bobbio is keenly aware of the history of an antagonism between the ideal of democracy, based on a “social” or “substantial” notion of equality, and liberalism as a political movement that emerged at the beginning of the nineteenth century in opposition to both the monarchical principle and popular sovereignty. Individual liberty, formal equality before the law, and constitutional government (understood primarily as the separation of powers and guarantee of select subjective rights) were advanced to combat the absolutist “tyrant” as well as the “tyranny of the mob.” Of course, democracy too saw itself as the implacable enemy of monarchy; hence during the course of their common
nineteenth-century battles, a compromise or synthesis occurred—not without its radical critics, chiefly Marx—between the two uneasy allies. As Bobbio describes it, the compromise was worked out on a terminological terrain, though of course it had its political and social correlates.

The battle between liberalism and democracy is the battle between the hegemony of liberty over equality, on the one hand, and equality over liberty, on the other. According to Bobbio, “liberty and equality are antithetical values, in the sense that neither can be fully realized except at the expense of the other: a liberal laissez-faire society is inevitably inegalitarian, and an egalitarian society is inevitably illiberal” (Bobbio 1990, 32). To fuse the two political ideologies, one needs to tweak definitions, primarily by weakening the meaning of equality. “There is only one form of equality—equality in the right to liberty—which is not only compatible with liberalism but equally demanded by its view of freedom” (33). Thus, “nowadays” democracy must restrict its desire for equality to the aforementioned liberal ideals of equality before the law and equal rights (including the indispensable right to private property, the plausible cause of all substantial inequality). A problem that this hybrid creature called liberal democracy cannot examine is the fact that just because one has a right to equality does not mean that one necessarily has the material means to enjoy its concrete exercise. This is the lesson we have learned from Hegel, Stein, and above all Marx. Liberalism habitually brushes this inconvenient detail aside and thereby wins its battle with democracy, for whereas liberal ideals seemingly need no alteration, older, “substantial” definitions of democracy are discredited or simply disappear. Modern liberal democracy in its “juridical-institutional” sense is “procedural” in that it emphasizes a “body of rules,” Bobbio maintains; it is a formal “government by the people.” What liberal democracy supplants is an “ethical” vision that promotes “substantial” equality, not only of opportunity but of achievement, and therefore exerts itself to be a “government for the people” (31–32; emphasis added). This latter, older version, Bobbio says, is to be rejected, for “today non-democratic liberal states would be inconceivable, as would non-liberal democratic states” (38). Like “nowadays” above, “today” here accepts the liberal definition of equality and thus the liberal modification—or mollification—of democracy as an irreversible (and of course desirable) fait accompli. Based on this victory, then, Bobbio can decry Carl Schmitt’s “withering critiques of democracy” (Bobbio 1987, 122), even though by the mid- to late 1920s, especially in his Constitutional Theory (a text Bobbio often cites), Schmitt saw himself as a classic, pre-liberal democrat at war with liberalism’s enervating assault on all things political.

Bobbio rehearses here the twentieth-century peace treaty that settled the dispute between liberalism and democracy, a dispute that still raged in the first third of the century, especially, perhaps, in Germany. Though now the standard view, that treaty was never signed by all.^[1] In the Weimar Republic, the intellectual civil war between democracy and liberalism still raged, with socialism at times a participant, at times an alternate solution. What follows examines Schmitt’s renewal of the war between the two chief contestants, for during the Weimar Republic, after some hesitation, Schmitt wrapped himself, like some modern Robespierre, in the mantle of democracy. This cloak, like all the capes of political theory, is a patchwork quilt, stitching this with that while leaving the other behind, but the pattern that emerges is coherent, even—some might think—aesthetically pleasing, if politically fraught with danger. In this and the following chapter, I will gather the elements of Schmitt’s critique of liberalism and reinvention of a plebiscitary democracy as his way of rescuing a strong, ethical state from its feared demise at the hands of social forces.

Liberalism as a Weltanschauung

We can pick up the first thread of Schmitt’s definition of liberalism by looking at his critique of romanticism. Traditionally, romanticism had been seen as a conservative reaction against the ideals of the French Revolution and, as antidote, an idealization of the Middle Ages and its social order. Some romantic authors sought to reclaim the past in a nostalgic manner to comment critically on the fragmentation of the present. The German author Novalis, for instance, had presented in essay form the stark contrast “Europe or Christendom,” favoring the medieval Catholicism of the latter over the secular present. Romanticism is also associated with the revival (and/or creation) of the folklore tradition (by the brothers Grimm in Germany and a host of others elsewhere). And the philological recovery of medieval courtly romances and especially heroic epics like the Nibelungenlied seemed to inspire and feed more conservative forms of German longing for national unity. In his delightful long poem, Germany: A Winter’s Tale, the liberal German Jewish poet Heinrich Heine brilliantly skewered this medievalist spirit when, among other things, he commented on the nineteenth-century attempt (eventually successful) to complete the construction of the medieval Cologne Cathedral in gothic style by referring to it as the “Bastille of the spirit” (Geistesbastille).

By the beginning of the twentieth century, however, a new reading of romanticism came to dominate. The French literary critic and sometime associate of the Action Française, Pierre Lasserre, linked French romanticism not with medievalism but with Rousseau and the revolutionary spirit.^[2] In the Anglophone world, this view prevailed in politically informed literary criticism as the distinction between romanticism and classicism. Though many followed the fashion, none matched in wit and incision its English originator, T. E. Hulme. In “Romanticism and Classicism,” a lecture published posthumously,^[3] Hulme claims that romanticism can best be defined by examining its underlying principle, namely liberty, the chief of the ideas of 1789. The architects of the revolution “had been taught by Rousseau that man was by nature good, that it was only bad laws and customs that had suppressed him. Remove all of these and the infinite possibilities of man would have a chance. . . . Here is the root of all romanticism: that man, the individual, is an infinite reservoir of possibilities.” Classicism, on the other hand, is the “exact opposite,” for it presumes that the human is “an extraordinarily fixed and limited animal whose nature is absolutely constant.” Not content with mere statement, Hulme deploys a set of striking similes. “Put shortly, these are the two views, then. One, that man is intrinsically good, spoilt by circumstance; and the other that he is intrinsically limited, but disciplined by order and tradition to something fairly decent. To the one party man’s nature is like a well, to the other like a bucket.” From here the step to religion is short. As bucket, the human is informed by “the sane classical dogma of original sin.” Indeed, religion, “belief in the Deity,” is as natural to the human as “appetite, the instinct of sex, and all the other fixed qualities” (Hulme 1994, 61). Just as the denial of the appetites has consequences, so does the denial of God and buckethood.

Here we have in admirable clarity and simplicity Hulme’s “political theology,” an arresting simile that links the loss of a deity with its consequence, a substitute terrestrial structure. He does not approve. As wellsprings of infinite possibilities, we gush forth with uninhibited enthusiasm and optimism, only to fall back and spill our guts over the all-too-solid earth—“there is always the bitter contrast between what you think you ought to be able to do and what man actually can.” As buckets we know our “finiteness,” our “limit”; we know what and how much we can hold and carry (62). In a well of possibilities, we eventually drown in disappointment.

To my knowledge, Schmitt never read Hulme, but he would have been sympathetic with the views expressed. Indeed, Schmitt later contends in The Concept of the Political that “all genuine political theories presuppose man to be evil, i.e., by no means an unproblematic but a dangerous and dynamic being” (Schmitt 2007, 61). Nor does Schmitt mention Lasserre in Political Romanticism, but states the latter’s thesis, attributing it to “the French” and mentioning Lasserre’s compatriot Ernest Seillière (Schmitt 1986, 1). Schmitt accepts with approval the identification of the belief in “natural goodness” and the “denial of Original Sin” with romanticism as “at least an approximate determination” (3) and certainly “a commendable and valuable achievement” (5). Ultimately, however, he claims that such a general grounding “fails to recognize the historical distinctiveness of the movement” (5). The credit for finding that historical distinctiveness goes, Schmitt believes, to the French literary historian Hippolyte Taine, who identified the “new bourgeoisie” as the “bearer of the romantic movement” (12). Like Lasserre, Hulme, et al., Schmitt cuts against the previously accepted notion that romanticism is identical with conservatism, but more forcefully than the others, he wishes to locate in that new class of self-seeking, self-interested individuals the agents of the romantic ethos. In the flush of his (again, gender assumed) nineteenth-century emancipation from the shackles of the ancien régime, the bourgeois individual embraced the world as his oyster. But not for long. The contradictions that one can locate in romanticism, its exuberance and self-confidence alternating with gloom, doom, and despair, betray the liberal individual’s social and political position, caught between the victory over “the traditional monarchy” and the emerging battle with the “socialist proletariat” (13). The cycle of optimism and despair that Hulme found in romantic poetry finds its social counterpart in the combination of the bourgeoisie’s self-confident identification with humanity as such and its violent fear of and hostility toward the propertyless and uncultured “rabble.”

Never a democrat, Schmitt says the bourgeois liberal was unable, nay, unwilling to find its own political form. In Political Romanticism this formlessness takes the shapeless shape of an oscillation between the subjective invincibility of romantic irony and the thorough determinism of forces outside of human control. Again, one might liken this to Hulme’s analysis of the romantic mood swing, alternating, as it does, between the optimism of infinite, God-like creativity and impotent despair. On the one hand, the romantic subject makes itself the true substitute for God, the true “creator of the world” (Schmitt 1986, 97), or rather, through irony, the creator of an infinity of worlds, none more real than the last. The romantic subject, Schmitt claims, “ironically avoids the constraints of objectivity and guards himself against becoming committed to anything. The reservation of all infinite possibilities lies in irony,” by way of which the subject may preserve its “own inner, genial freedom, which consists in not giving up any possibility.” It is as if—to evoke our previous discussion of God’s will—God, to preserve the infinite potentiality of his absolute power, refuses to create a world at all, but rather eternally entertains the infinity of possibilities without the burden of having to choose and thus honor his choice with commitment. However, if, alternately, God is banished (or simply absconds) and the ironic subject that takes His place merely contemplates possibilities, it may come to pass that choice will be made elsewhere. Schmitt identifies the nineteenth-century invention of two substitute “demiurges,” humanity and history (59), two impersonal forces that move behind the individual’s back, making of the “individual person . . . the tool of his sociological surroundings, or the tool of the world spirit that evolves in a world-historical fashion, or the tool of the most diverse combinations of these two factors” (81). Hegel’s famed cunning of reason is one such demiurge. “An unconscious and higher necessity hovers over the freedom of the individual human being,” making of the human individual “an instrument of the reason that evolves in the dialectical process.” Reason’s invisible hand is not the only culprit. Evoking Marx, Schmitt can also point to the notion that “human beings and classes are simultaneously tools and consequences of the vast process of production in whose relations they are impelled, above and beyond their calculations.” Or again, now channeling Schopenhauer, Schmitt finds that “an unconscious, enigmatic, oppressed will directs at its own expense the entire tragedy and comedy of the world with all its details and events, and it treats itself as a spectator at the same time. Thus ‘life is a continual deception’” (80).

Nowhere, Schmitt claims, do we find any sense of political form, because the romantic individual—which is to say the bourgeois individual—is unable to think in terms of the political collective or community. He protects himself by encapsulating himself within himself. “In the liberal bourgeois world, the detached, isolated, and emancipated individual becomes the middle point, the court of last resort, the absolute.” Having “dethroned God,” this liberal, romantic subject “always claimed . . . that his experience was the only thing of interest. This claim can be realized only in a bourgeois order based on rules. . . . Psychologically and historically, romanticism is a product of bourgeois security” (Schmitt 1986, 99). As we already saw in Schmitt’s discussion of Jellinek, these “rules” are the basic, pre-political norms that characterize every liberal constitution and are meant to keep the state at bay. In Political Romanticism, we have the hyperbolic articulation of the Weltanschauung, the self-identity of the bourgeois subject that sees itself superior to and in need of protection from all political considerations.^[4] Schmitt’s use of the term “bourgeois” (in German, bürgerlich) indicates the class to which this individual belongs and which this Weltanschauung represents. The aim of Schmitt’s study is to show that this class promotes an “aestheticizing” ideology that vaporizes the world of putatively objective reality. “Subjectivism” and irony do the dirty work of dissolution, but lurking in the wings is the economy, which, as we have been told by Marx and Engels, is what really causes all that is solid to melt into air.^[5] No Marxist, Schmitt never makes the economy (capitalism, the ownership of the means of production) the center of his analyses. Yet, the producing and consuming individual as carrier of the liberal ethos and anxiety (“bourgeois security”) is never very far from that center. As a self-description of the liberal ethos, we may not be able to do better than call on the romantic novelist^[6] and liberal theorist Benjamin Constant.

In Finley’s description of the political practice of the Greek polis, we witnessed the triumph of the public over the private individual. Quite the opposite, Constant contends, is the modern view. Reacting to the French Revolution’s unrestrained public supervision of thought and deed and the near continuous warfare from 1792 to 1815, Constant highlights a necessary distinction between the public and private spheres, between the political community and the private individual as homo oeconomicus. For the ancients, Constant asserts, liberty “consisted in exercising collectively, but directly, several parts of the complete sovereignty” (Constant 1988, 311); communal well-being was thereby elevated over faction or self-interest. The individual was free in his “active participation in collective power” (102); thus his liberty consisted in his ability to take part in communal deliberation and exercise political decision. For the privilege of this active and public liberty, however, he paid by renouncing “private independence . . . since to enable a people to enjoy the widest possible political rights, that is that each citizen may have his share in sovereignty, it is necessary to have institutions which maintain equality, prevent the increase of fortunes, proscribe distinctions, and are set in opposition to the influence of wealth, talents even virtue” (103). For the ancients, then, liberty was a public and political quality, not a private affair.

For the moderns, the poles are reversed. Private practices wholly replace political participation, for modernity no longer permits direct, public citizenship. Based on property rights and grown to a size that is unmanageable by communally deliberative methods, the modern state, Constant says, has happily hit upon the idea of representative government, which removes from the citizen the burdensome necessity of political knowledge and intimate participation. Popular sovereignty, no matter how stridently proclaimed, is at best illusory. “Lost in the multitude,” Constant writes, “the individual can almost never perceive the influence he exercises. Never does his will impress itself upon the whole; nothing confirms in his eyes his own cooperation” (Constant 1988, 311). Accordingly, the pleasure afforded the ancients by their exercise of political rights is no longer attainable. Rather, our pleasure is taken privately. Whereas “the aim of the ancients was the sharing of social power among the citizens of the same fatherland,” the “aim of the moderns is the enjoyment of security in private pleasures; and they call liberty the guarantee accorded by institutions to these pleasures” (312). It is almost as if he were singing us lullabies: “The sole aim of the modern nations is repose, and with repose comfort, and, as a source of comfort, industry” (54). The citizen becomes the bourgeois; the political actor becomes the active producer and passive consumer. Or rather, and much more to the point, the interests of the political subserve those of the economy. With disarming honesty, Constant exults: “The effects of commerce extend even further: not only does it emancipate individuals, but, by creating credit, it places authority itself in a position of dependence. . . . Power threatens; wealth rewards: one eludes power by deceiving it; to obtain the favours of wealth one must serve it: the latter is therefore bound to win” (325). Commerce, therefore, can replace all aspects of public political life, even war. As Kant had asserted before him and John Rawls since, Constant believed that commerce was inherently pacific and brought people and peoples together. Unlike Kant and Rawls, he seems to have been more honest about what commercial pacification entailed. “War and commerce,” he writes,

Commerce seems here directed by the invisible hand that ideally distributes wealth, quite unevenly to be sure, but apparently to everyone’s mutual, if coerced, satisfaction.

Read with a more critical eye, Constant’s casual remarks might also confirm Schmitt’s link between trade (Tauschen) and deception (Täuschen) in the passage I cited to close the section on Franz Oppenheimer of the previous chapter. The pathos of the self-pitying German may be for some unbearable, but Schmitt alludes here to what he felt to be the type of moral and economic warfare exercised by the victorious allies after World War I, a type of warfare that placed Germany, just as it places all economically weak or colonized subjects, in a double bind. It is unlawful and immoral to break the peace through violence, even when peace is but a subterfuge under which economic warfare is in fact being waged, a claim Schmitt often made. To close this section, allow me to repeat a part and then complete the passage on the deception and exploitation that is endemic to an uncontrolled civil sphere.

However one may feel about the justification of the post–World War I peace treaties, the politics of debt and reparations, and the various political restrictions placed on German self-determination, the point Schmitt makes is not limited to that one example. Peasant uprisings, violent strikes, and the turn to war by political bodies who feel they have been pushed to the limit by embargos, blockades, and other forms of economic coercion can now all be deemed “crimes against peace.” Yet peace is always more peaceful for some than for others.

Liberalism as Ideology

With the introduction of economic deception, we have already left the realm of liberalism as an apolitical, humanitarian ethic and now approach it as the object of a rudimentary critique of ideology. Although on Carl Schmitt’s reading, liberalism was hostile to state, democracy, and politics in general, it used its individualistic ethos to secure political ends. Liberalism is the mode society uses to weaken the state and strengthen its own sphere of influence. This too is a form of politics, a putatively anti-political, interest-driven politics of the first order. If this is true (or, if you prefer: If this were true), it is important to expose the ruse by contrasting what liberal self-description has to say about the function of parliamentary governance and what “really” goes on behind the scenes. Therefore, in The Crisis of Parliamentary Democracy and elsewhere, Schmitt engages in a type of ideology critique meant to expose and thereby discredit the actual practice of the legislative branch of liberal governance by comparing practice with liberalism’s own self-
description. Although there is an economic component to his analysis, Schmitt’s is by no means an orthodox Marxian critique of ideology. Rather, he simply seeks to show that the wizard behind the curtain of the liberal Oz is not in the employ of truth but of specific, largely economic interests that have little to do with the well-being of Oz as a whole.

In the introduction to the first edition of Crisis, published in 1923, Schmitt lists a series of “deficiencies” and “mistakes” that, he says, critics steadily enumerated over the first few years of the Weimar Republic. The exposure of these deficits leads him to conclude that the “real business” of parliament

In the preface to the second edition (Schmitt 1985a, 1–17), he punctuates his point by labeling this “poor façade” a “superfluous decoration, useless and even embarrassing, as though someone had painted the radiator of a modern central heating system with red flames in order to give the appearance of a blazing fire” (6). What is this garishly painted façade? The target of his colorful derision is “the purposelessness and banality of parliamentary debate” (19) and the “empty formality” of “public argumentative debate” (6). His was certainly not an uncommon complaint, nor would many be outraged or shocked were one to utter it today, but it was more than a lament or object of late-night humor. Rather, it was meant to be the identification of a corpse and an overture to its burial. His critics, like Richard Thoma, whose review is reproduced in the English translation of the work, simply said: So what? The importance of parliamentary democracy, they professed, lay not in its
nineteenth-century philosophical presuppositions, but in its twentieth-century efficacy. In deflecting the significance of a substantive justification for liberal parliamentary governance, Thoma and others could call upon the authority of Max Weber’s influential writings on the political during and just after World War I, especially his Parliament and Government in Germany under a New Political Order, published in book form in 1918. Weber’s, one might say, was a functionalist argument that admitted parliamentary democracy’s ideological deficiencies yet maintained its inevitable victory as modernity’s form of governance. Despite his clear-eyed assessment of the demagogic roots of parliamentary leadership, party politics as essentially the bureaucratically organized conflict of interests, and the democratic deficit of liberalism, Weber affirmed the latter’s mode of functioning in recognizable terms. “Even in electoral democracies parliament is indispensable as an organ for controlling officialdom and ensuring public scrutiny of the administration, as a means of excluding unsuitable leading officials, as a place where the budget is determined, and as a means of achieving compromises between the parties” (Weber 1994, 227). There is no concession to the ideal of discussion as a means to achieving harmony, collective well-being, or truth, but there is still the belief that since politics is conflict, parliament serves as a useful arena for managing internecine strife and making it functional for the business of bureaucratically organized politics.

Argument by efficacy, performativity, functionality, or process was never enough for Schmitt, at least not when it came to the instantiation of ideological structures of which he disapproved. He was willing to admit an attraction to liberal comforts: “There are certainly not many people today who want to renounce the old liberal freedoms, particularly freedom of speech and the press.” But he doubted the efficacy that the others touted: “But on the European continent there are not many more who believe that these freedoms still exist where they could actually endanger the real holders of power.” And he obdurately refused to believe in its self-appraisal: “And the smallest numbers still believe that just laws and the right politics can be achieved through newspaper articles, speeches at demonstrations, and parliamentary debates” (Schmitt 1985a, 50). Let us look more closely at how he argues his case.

Much read at the time, Wilhelm Hasbach distinguished liberalism from democracy by drawing a paradigmatic distinction between Montesquieu and Rousseau, adamantly favoring the former. Because Schmitt refers to Hasbach’s texts often and of course differs fundamentally with the latter’s preferences, it serves us well to look briefly at Hasbach’s summary of the highlights of Montesquieu’s position.^[7] For Hasbach, Montesquieu represents an eighteenth-century clearing of the air, which replaced the religious wars of opinion with a milder rationalism and deism and resultant materialist philosophy. Alluding silently to the enlightened governance of Frederick the Great, he claims that tyrannical absolutism was gradually replaced by monarchs who saw themselves as the chief public servants (die ersten Beamten) of their states. Under these conditions, liberty began to flourish, most significantly economic liberty. Combating all forms of feudal servitude, economic liberalism included within it all further forms of individual freedom, such as the enunciation of human rights, derived from natural law; thus individualism began its career as the center of all political and social considerations. Perhaps most importantly, Montesquieu firmly rejects not only monarchical but also popular sovereignty and theorizes a system of governance meant to limit public, sovereign power. In particular, Hasbach emphasizes the deliberate and strict incompatibility of Montesquieu’s articulation of the separation or balance of governmental powers with popular sovereignty. By giving voice to filtered popular demands, the parliament checks monarchical authority, but is also itself restricted by that authority and by an independent judiciary. Individual freedom, Hasbach notes, is the freedom to follow one’s desires and the freedom from being forced to do what one does not desire. Political (or collective) freedom resides solely in the Gemütsruhe (ease of mind) that comes with the resultant guarantee of personal security. Echoing perhaps more the ethos of the young Wilhelm von Humboldt,^[8] Hasbach praises liberalism for treasuring individuality and calls it the animating power of all things human. A people is measured not by its collective personality, but by its capacity to proliferate a maximum of individual personalities. Democracy, on this view, threatens the individual with its potential tyranny of enforced equality. Liberalism, Hasbach states, is a form of naturalism because it recognizes and allows for the development of the natural inequalities of human individuals. Liberalism and democracy therefore are archenemies, because the proliferation of freedom naturally brings with it the increase in inequality, and conversely, equality can be brought about only by drastically limiting freedom, the very conundrum Bobbio so emphatically made in his articulation of this fundamental difference. Hasbach, channeling Montesquieu, deepens the paradoxical relationship of freedom and equality by postulating the independence of personal from political freedom. From the viewpoint of the individual, democracy is inherently tyrannical; the general will is not an expression but an imposition. Only in a monarchy can individual freedom thrive. In absolutism, the monarch’s desire for despotic control can be limited by the institution of basic rights, by the protection of self-interested intermediary powers (the aristocracy, the clerisy, and the cities), and by an independent judiciary. But most efficiently, the individual thrives in a fully constitutional monarchy in which the above-mentioned balance of powers (including the balance within parliament provided by an upper and a lower house) is predominant. Through the play of all these forces, Hasbach affirms, a balance of the constitution is produced, and thereby all powers, by balancing the others, work in tandem for the well-being of the people as a whole.

If you cannot imagine Schmitt tearing his hair out reading these four pages from Hasbach, then you have not been paying attention. I will use three phrases from this text on which to hang Schmitt’s critique of liberalism: “rationalism and deism,” “balance,” and “well-being of the people.” With the end of the fifteenth- and sixteenth-century religious civil wars, Hasbach claims, rationalism conquers passionate belief, and deism depersonalizes, if not altogether disavows, religion. On one account, reason replaces the divine and thus takes on divine qualities and authority. With God’s evacuation of truth, reason dons the mantle. Yet the adjective “mild” relativizes that authority. Rationalism is not unitary, godlike. It is not inherited from God but rather emerges from the play of forces that is marked by the word “balance.” When linked with deism, rationalism takes center stage, but it does so not as an individual—there is no longer a singular deity—but as an ensemble. It is not command, not divine revelation, but discussion. It is therefore not a unitary reason that reveals truth but the “balance” of opinions that establishes harmony; and that harmony is the placeholder for truth. No single instance, no person or single institution, stands for the truth. Rather, each contributes to the construction of truth that emerges in discussion, not as compromise but indeed as truth. In turn, the community, the people, will recognize in that multi-voiced, “decentered” (as Habermas would say) truth its own well-being, not just in the sense of a live-and-let-live libertarian liberalism, but in the sense of a community of self-interested individuals who have discovered a way of living in harmony with one another, despite their “natural” inequality. As Schmitt puts it, the “ratio of parliament rests . . . in a process of confrontation of differences and opinions, from which the real political will results. The essence of parliament is therefore public deliberation of argument and counter argument, public debate and public discussion, parley, and all this without taking democracy into account” (Schmitt 1985a, 34–35). To punctuate his claim Schmitt refers to the “absolutely typical chain of thought” of the “absolutely typical representative of parliamentarism,” François Guizot. “Starting from right (as the opposite to might),” Schmitt writes, Guizot

The almost identical set of principles can be found in the Anglophone literature as well. John Stuart Mill, in the second chapter of his On Liberty, titled “Of the Liberty of Thought and Discussion,” also wishes to gather together the scattered particles of reason by way of verbal contest. “In politics,” he maintains, “it is almost a commonplace, that a party of order or stability, and a party of progress or reform, are both necessary elements of a healthy state of political life,” because each compensates for the “deficiencies” of the other.

Only in this way, “only through diversity of opinion is there, in the existing state of human intellect, a chance of fair play to all sides of the truth” (49). This, the conviction that “the truth can be found through an unrestrained clash of opinion and that competition will produce harmony,” is what Schmitt insists on calling liberalism’s “consistent, comprehensive metaphysical system” (Schmitt 1985a, 35). This is the subject of Schmitt’s critique.

Whether explicitly or implicitly, this liberal “metaphysical system” presupposes an individual, usually exclusively white and male, whose “particles of reason” have also customarily been honed and developed in class-based educational establishments. Presupposed, in other words, are property and education (again, Besitz und Bildung) along with gender-based and race-based exclusion, as can be documented by the checkered history of suffrage in Europe and the Americas throughout the nineteenth century and into the twentieth. (What the twenty-first will bring remains to be seen.) Presupposed are also the basic rights that protect access to property and exclusive education. Though public education was pioneered on the continent (primarily Prussia) and North America, and admirably championed by Matthew Arnold,^[9] it too has a checkered history and is slowly (or perhaps not so slowly) receding from view today. Furthermore, with proper breeding comes also the required control of the passions, a presumed mastery that putatively allows reason to rule. And with rational self-discipline comes a silently assumed suspension of self-interest, or perhaps an explicit assumption that among peers the difference in material and spiritual self-interest is only a matter of degree, not kind. However, with the rise of industrial poverty and the resultant social movements, a post-Hegelian doubt, registered in differing ways by Marx and Stein, rises to challenge the quiet assumptions of the liberal bourgeoisie. The popular sovereignty that the separation and balance of governmental powers was meant to suppress, now more often than not referred to as mass democracy, threatens, again in various ways, to break through the old glass ceiling of privilege. The presumption of harmony shatters when the rabble rattles the gates.

These implicit presuppositions and quiet assumptions make up the “façade,” the painted radiator of the parliamentary system, behind which, in closed sessions, decisions are made. The operative term to describe what goes on in legislative bodies is not discussion (Diskussion) but negotiation (Verhandeln), which on Schmitt’s view is a decisive distinction. One deliberates and negotiates everywhere, in the cabinet of an absolutist monarch and at board meetings of large corporations, even “between Christian and Turk.” Discussion, on the other hand, has a precise definition, “an exchange of opinion that is governed by the purpose of persuading one’s opponent through argument of the truth or justice of something, or allowing oneself to be persuaded of something as true and just” (Schmitt 1985a, 5). Discussion implies not a conflict of interests but of opinions, not a calculation of costs and benefits, but a common search for reasoned agreement that is then accepted not as a compromise but as truth. Anyone with eyes to see and ears to hear, he implies, will realize that modern parliamentary proceedings have nothing to do with liberal self-description. Therefore, parliamentary governance is a sham, thoroughly discredited, and slated to be the latest political ideology to be tossed into the dustbin of history.

Democracy, on the other hand, with or without the accoutrements of liberal restraints, has become the only legitimate form of rule. “The development from 1815 until 1918 could be depicted as the development of a concept of legitimacy: from dynastic to democratic legitimacy” (Schmitt 1985a, 30). With the possible exception of Italian Fascism, Schmitt states (in 1923), every form of modern governance, from liberal constitutional monarchy to Bolshevism, justifies its existence democratically, which is here defined as the will of the people. Accordingly, the chief issue of democratic thought becomes the identification or recognition of the will of the people—more realistically, the problem of will formation. “One can say today, faced with the expansion of democratic thought, that an identity with the will of the people has become so common a premise that it has ceased to be politically interesting, and that the conflict only concerns the means of identification” (29). Since Schmitt disqualifies liberal, parliamentary discussion as a possible means, he is obligated to offer an alternative model of democracy. This model is our next object of investigation.

I take the liberty to point you to the passage in Benjamin R. Barber, The Death of Communal Liberty (1974), 274, that, under Hegel and Stein, adorns the opening of Part II of this volume (p. 64). The reader may also wish to consult Barber, Strong Democracy (1984) for further hesitation about the standard view.

See Lasserre, Le romantisme français (1907).

Hulme fought and died in 1917 in World War I. The essay was first published in Hulme, Speculations (1924), 111–40. I cite from Hulme, The Collected Writings of T. E. Hulme (1994); see p. xx of the editor’s introduction for more information. The critique of romanticism dominated early twentieth-century Anglophone literary modernism.

Or, as Schmitt says in The Crisis of Parliamentary Democracy, “not a state form but an individualistic-humanitarian ethic and Weltanschauung” (1985a, 13).

The famous line from the Communist Manifesto reads, “All that is solid melts into air.” See Tucker, The Marx-Engels Reader (1972), 338.

Reference is to Constant’s novel Adolphe.

What follows is a summary of Hasbach, Die Moderne Demokratie (1912), 15–19.

Reference is to Humboldt, The Limits of State Action (1969), a passage from which was used by J. S. Mill as an epigraph to On Liberty.

See Arnold, Culture and Anarchy and Other Writings (1993), esp. 117–25.

Democracy

With the disarticulation of what had become the only legitimate modern political means of governance, liberal democracy, Schmitt thought it possible to discard the liberal components (prepolitical rights, separation of powers, parliamentary discussion) and keep democracy, provided that one identified and defined democracy correctly. Before we look at Schmitt’s definition, let me pull some threads together in order to better focus our attention on what Schmitt proposes.

You will recall Nietzsche’s and Weber’s contention that there is no access to the well-reasoned intellectual enterprise called Wissenschaft (science in its most expansive sense) without pre-rational presuppositions. Reason alone does not give one norms to follow. Rather, one derives norms rationally only after one chooses an enabling starting point without the help of reason. There is, as it were, a required Kierkegaardian leap of faith, after which and only after which one sutures the gap between contingent choice and necessary system. One way to make the contingent leap invisible after the fact is to claim that one’s chosen presupposition is an impartial and therefore noncontingent standard. Leo Strauss, as we saw, uses the putative discovery of “nature” as the backstop through or around which one is not supposed to peek. Kant and modern neo-Kantians like Jürgen Habermas rely on a historical process, the continuing and possibly never-ending self-perfectibility of the public use of reason, as its unquestioned legitimacy.^[1] Carl Schmitt more frankly speaks of authority, modeled loosely on the role of the Roman Church’s guardianship of revelation, as reason’s guide, and of community, again modeled loosely on the church’s congregation, which recognizes the legitimacy of authority whenever it feels its belief confirmed by that authority. In each case, whether reason (“natural” or “evolutionary”) or revelation (“divine” or “secular”), we are dealing with a scarcely concealed fiction. Nevertheless, if we accept (on faith) Nietzsche’s and Weber’s views, any critique of the fictionality of reason or revelation must itself be based on an enabling presupposition, a fiction of its own. Neither an objective, rational ground nor the lack of an objective, rational ground for our beliefs can be demonstrated objectively or rationally. As Weber said, we choose (singly or as a collective) and are thereby left to our own devices.

A fascinating short essay by Georg Lukács, “Bolshevism as a Moral Problem,” written in November 1918, only days before he committed himself wholeheartedly to Bolshevist, revolutionary socialism, illustrates the point with enviable clarity. Lukács distinguishes two conflicting elements of Marx’s thought: the sociology of continuous, never resolved class struggle, on the one hand, and, on the other, a philosophy of history that projects an ideal world order in the future. According to class struggle alone, no flawlessly democratic order would ever be possible, because one would always experience the oppression of one class over the others. Sociologically speaking, a working-class revolution would, therefore, simply replace the oppression of the bourgeoisie with that of the proletariat, which, on Lorenz von Stein’s reading, would equally lead to the “death” of society. The Marxist-Leninist adaptation of the Hegelian philosophy of history, however, locates in this dictatorship of the proletariat the final oppression of one class over the other, after which oppression would disappear and a fully transparent self-determination of the demos would be established. The political actor who is asked to choose between the reformist platform of a social democratic party and the revolutionary vision of the Bolshevists would face a moral dilemma. On the one hand, the reform party operates with democratic means to effect incremental democratic reforms, thereby risking “infinite delay, since most of the people might not yet want this new world order.” Within the paradigm of reform, the remedy for infinite delay is pedagogy, “to teach, enlighten, and wait, in the hope that one day humanity, through its conscious action, will achieve what has long been viewed by many as the only possible solution to the problems of the world” (Lukács 1977, 422).^[2] The revolutionary party, however, places its belief in the will of the political actor, namely the proletarian class. “It is precisely this will that enabled the proletariat to become the agent of the social salvation of mankind, the messianic class of world history. Without the fervor of this messianism, the victorious path of social democracy would have been impossible” (420–21). Belief in the messianic mission of the proletariat entails our acceptance of “dictatorship, terror, and the class oppression that goes with it . . . in the hope that this last and therefore most open and cruel of all class oppressions will finally destroy itself and in so doing will put an end to class oppression forever” (422). We are therefore placed before a dilemma and asked either to work incrementally and in a compromised manner with no sure hope of success or “to believe—this being the true credo quia absurdum est—that no new class struggle will emerge out of this class struggle . . . but that oppression will effect the elements of its own destruction” (423–24). To repeat, the dilemma is, in Lukács’s view, an ethical dilemma that no knowledge can resolve. “It is, therefore, a question of belief—as it is in the case of any ethical question—of what the choice will be” (424).

If, in this essay, we are reminded of Weber, it should come as no surprise, since Lukács was a longtime member of the unofficial Weber Circle in Heidelberg.^[3] At almost the very same time that Lukács composed his exercise on the dilemma of political commitment, Weber delivered his lecture “Politics as a Vocation,” in which he developed the key distinction between a political ethics of conviction (Gesinnungsethik) and an ethics of responsibility (Verantwortungsethik). The former he attributes to the syndicalist actor who cannot be dissuaded by pragmatic considerations from acting on the purest of motivations.

A “responsible” politician, however, acts according to a contrary principle. He will weigh not just alternative ends but also alternative means, including unsavory ones, to achieve desired if limited results. Yet, the distinction between the two ethics is not symmetrical. Acting out of a sense of responsibility—compromise, reform, measured action that leads at best to limited success while trying to avoid collateral damage—is itself a conviction, as Weber makes clear. “I find it immeasurably moving,” he writes, “when a mature human being . . . who feels the responsibility he bears for the consequences of his own actions with his entire soul and who acts in harmony with an ethics of responsibility reaches the point where he says, ‘Here I stand, I can do no other’” (92). The evocation of Martin Luther’s famous utterance that launched the Protestant Reformation says it all. Conviction based on belief and not an ultimate, rational ground lies at the bottom of both political, ethical stances.

When Weber uses the “syndicalist” as his example of one who acts on the premise of an “ethic of conviction,” he has above all the supreme theorist of syndicalism in mind, Georges Sorel, whom we have already encountered. Just as Sorel distinguished between a negatively charged force (state power) and a positively valued violence (the general strike), so too did he oppose a favored, non-rational myth to the calculable and rational predictions of all utopias. A utopia, which is at best inherently reformist and at worst reactionary (Sorel 1999, 28, 128), is “an intellectual product,” a “work of theorists who, after observing and discussing the facts, seek to establish a model to which they can compare existing societies in order to estimate the amount of good and evil they contain” (28). Utopias, the work of future pragmatic politicians, not revolutionaries, become the object of rational calculation, debate, and public policy. “Liberal political economy is one of the best examples of a utopia that could be given. A society was imagined where everything could be reduced to types produced by commerce and operating under the law of the fullest competition.” Although such “an ideal society would be as difficult to realize as that of Plato,” Sorel adds, “several great statesmen of modern times have owed their fame to the efforts they made to introduce something of this ideal of commercial liberty into industrial legislation” (29). Though Sorel emphatically sides with the proletariat, he claims that even socialism throughout its short history has been plagued by utopian thinking, a situation Sorel aims to correct with the concept of myth.

Myths “are not descriptions of things but expressions of a will to act” (Sorel 1999, 28), not rational plans but an ethos. For Sorel, the general strike, modeled on the singular, cataclysmic Napoleonic battle (109), was the myth of modern, radical action.

Would you care to refute this assertion? It would be to no avail. Not an invitation to discussion, myth is a call to arms. Accordingly, you are invited to recall Walter Benjamin’s “Critique of Violence,” and may again recognize his distinctions as a recrafting of Sorel’s. Not only does Sorel’s opposition of force and violence become Benjamin’s distinction between mythic and divine violence, but—despite the negative valence of the term “mythic” in Benjamin’s scheme—you may now also realize that divine violence is an elevated version of the general strike, and that what Agamben calls Benjamin’s “white eschatology” (which longs for but predicts nothing about the future except that it will be wholly other) follows the logic of myth—undiscussable, impossible to prove or refute, but oh so very enchanting for those who believe.

Sorel’s disdain of “utopian” liberalism must surely have warmed the cockles of Carl Schmitt’s cold, cold heart. Of the myth of the general strike Schmitt makes Armageddon. There are two antagonists who face each other over the lesser figures of 1848 liberal “utopianism”—the Catholic reactionary Donoso Cortés and the French socialist/anarchist Proudhon (alternately: Marx), each the Antichrist of the other. Their opposition is world historical, Schmitt believes, yet perhaps more importantly each equally opposed “the bourgeois ideal of peaceful agreement,” of the “monstrosity of cowardly intellectualism. Discussing, bargaining, parliamentary proceedings, appear a betrayal of myth and the enormous enthusiasm on which everything depends. Against the mercantilist image of balance there appears another vision, the warlike image of a bloody, definitive, destructive, decisive battle. In 1848 this image rose up on both sides in opposition to parliamentary constitutionalism” (Schmitt 1985a, 69). The common enemy of the reactionary and the revolutionary, in other words, was the bourgeois, that object of literary farce and ridicule now raised for the first time, according to Schmitt, to world-historical significance by Marx and Engels. “They gave it [the figure of the bourgeois] the meaning of the last representative of a prehistorical humanity that was divided into classes, the very last enemy of mankind, the last odium generis humani” (74; see also 61). In Sorel, the myth of the general strike, the last battle against the last enemy of mankind, gives the proletariat its motivation and ethos.

Whereas both Lukács (initially) and Weber side with the reformist practitioner of pragmatic politics, Lukács abruptly jumps to the other side and into the open arms, as it were, of Sorel, or at least Lenin and the myth of the dictatorship of the proletariat as the last stage of violence and oppression before human history as we have known it effectively disappears and a new era dawns.^[4] Schmitt harbors no such eschatological illusions. There is no secular substitute for the second coming of Christ. Yet Schmitt does embrace the idea of myth, while at the same time refashioning it. Historical examples, Schmitt claims, including the examples that Sorel gives, demonstrate that “the stronger myth” is not that of the proletariat but of the nation (Schmitt 1985a, 75). Though the French Revolution was both a political and a societal event, it is to the idea of the nation that it gave birth, to no small degree because it inspired the myth of the nation in Europe’s opposition to Napoleon, most notably in Spain and Prussia. Even when the myth of nation combines with the myth of class (as in the 1917 Russian Revolution and 1916 Irish uprising, both examples given by Schmitt), nation reigns supreme. Oddly, Schmitt does not give as example the putative truce in class warfare of 1914, when the workers of the world did indeed unite, but each with his or her nation and not, to the chagrin of radical socialists, with each other across national borders. The year 1914 was the true victory of the idea of nation, and, despite the Russian Revolution of 1917, postwar Europe and the Middle East, by dissolving the Austro-Hungarian and Ottoman empires and carving territory out of a defeated Germany and Russia, were defined by ethnic nationalism and the newly created Eastern European nation-states. Even the Soviet Union, by abandoning St. Petersburg and returning to Russia’s Muscovite roots, Schmitt asserts, was as much a victory of the myth of nation as it was of class. And finally, in Fascist Italy, the depiction of the “communist enemy with a horrific face, the Mongolian face of Bolshevism,” left a stronger impression and “evoked more powerful emotions than the socialist image of the bourgeois” (75).

The myth of the nation, the people, the demos as the unity that gives form to its own political existence, is the element that allows Schmitt to isolate democracy from its extrinsic, liberal accretions and make of it the basis of a strong, self-determining state that has the chance of keeping the party-
political, parliamentary forces of contesting social self-interest at bay. The people as the singular, substantial constituent power of the nation is no more a real, empirical entity than is the idea of nature, natural law, universal norms, or pre-political rights; unlike the latter, however, “the people” can serve as the “myth” around which the political existence of a state may coalesce. We now turn to an examination of how Schmitt defines democracy in terms of a united people as the true constituent power of the nation-state in the modern era.

Homogeneity

“Democracy requires . . . first homogeneity and second—if the need arises—elimination or eradication of heterogeneity. . . . A democracy demonstrates its political power by knowing how to refuse or keep at bay something foreign and unequal that threatens its homogeneity” (Schmitt 1985a, 9). These words, written in 1926,^[5] will no doubt chill the heart of those of you now reading them for the first time. We twenty-first-century contemporaries cannot help but regard them through the lens of the historical experience attached to the dates 1933–1945 and beyond. The lessons of the twentieth century make it difficult not to assume that homogeneity refers to racial or ethnic purity and that “elimination or eradication” implies ethnic cleansing or genocide. The examples Schmitt gives in 1926 do not help matters much. “To illustrate this principle it is sufficient to name two different examples of modern democracy: contemporary Turkey, with its radical expulsion of the Greeks and its reckless Turkish nationalization of the country, and the Australian commonwealth, which restricts unwanted entrants through its immigration laws, and like other dominions only takes emigrants who conform to the notion of a ‘right type of settler’” (9).^[6] And to drive the last nail in the coffin, he points to an obvious fact, namely that states who pride themselves on their democratic institutions systematically exclude inhabitants from equal rights and equal participation. “Finally, one has to say that a democracy—because inequality always belongs to equality—can exclude one part of those governed without ceasing to be a democracy, that until now people who in some way were completely or partially without rights and who were restricted from the exercise of political power, let them be called barbarians, uncivilized, atheists, aristocrats, counterrevolutionaries, or even slaves, have belonged to a democracy” (9–10). His examples are the Athenian polis and the British Empire. But the list certainly does not end there: All nineteenth-century democracies excluded women every bit as much as Athens did, some restricting male suffrage to varying degrees as well. And, as a citizen of the United States, I feel obliged to remind all and sundry of the history of our relocation into reservations of that part of the indigenous North American population whom we had not already exterminated, as well as our enslavement of Africans and subsequent de jure discrimination of their descendants, which continues de facto in a variety of ways today—yet we still presume to serve as that shining city on the hill that putatively inspires the rest of the world to become democratic too.

Empirically, Schmitt’s contention seems incontestable. Democracies have always been the rule of the many (not necessarily the majority), never the rule of all. Unlike Schmitt, however, we tend, or pretend, to see the above remarked examples as deficiencies to be corrected, not as necessary conditions of possibility. Although the “population transfers” of ethnic Greeks to Greece and ethnic Turks in the opposite direction (though the operative distinction was more religious than ethnic—that is, Orthodox Christians on the one hand, Muslims on the other) was sanctioned and mediated by the League of Nations and served as a legal and moral precedent for subsequent transfers (think of the violent expulsion of ethnic Germans from Eastern Europe after World War II, sanctioned by the victorious Allies, or the similar expulsions that accompanied the independence of India and the creation of Pakistan, just to give two examples),^[7] we now refer to the process as “ethnic cleansing” and, in most cases, no longer endorse it. The “white Australia” policy of restricting immigration based on race or ethnicity was abolished in 1958, and currently Australia is coming to terms with the legacy of racially exclusionary policies that affected not just immigration but also the treatment of the continent’s indigenous population. South Africa, like the United States, was an apartheid democracy, now legally if not in reality fully corrected; but Israel, sometimes championed as the only Mideast democracy, has not granted citizenship or political equality to the Palestinians whose political lives they surveil and control to the most intimate degree. None of this invalidates democracy in the eyes of its champions. Democracy—or better, “democratization”—is considered an aspirational, ongoing process, a continuous effort at reform to match reality with the ideal of formal equality for all. Hope, as they say, springs eternal.

But Carl Schmitt is making more than an empirical and historical observation. With the inserted phrase “inequality always belongs to equality,” something resembling a logical necessity is posited. It is not logic in a strict Aristotelian or modern symbolic, mathematized sense but a form of operating with binary distinctions. The “logic” of distinction asserts that any and every chosen distinction is historically, culturally, or otherwise contingent and thus revisable, but that a distinction be made is necessary. Without differentiation, constructions of identity and difference cannot be made. It is not merely on a formal level that one needs a sense of inequality in order to define equality—just as one needs a background to see a foreground or an outside to perceive an inside—but rather, substantially (to use one of Schmitt’s favorite if relatively undefined terms) one needs a correlative inequality to make equality meaningful. It is such a substantial equality that Schmitt identifies as democratic.

A democratic equality can exist only if the demos can meaningfully differentiate itself from those who do not belong, and those who do not belong do not enjoy the status of being equal with those who do. The three historical examples implied in the above passage—Greek and Roman antiquity, early modern Europe, post–French Revolutionary Europe—utilize different unifying or “homogenizing” principles—civic virtue, religion, nationhood—around which citizens collect themselves into a unity above and beyond their personal, private, self-interested, economic, and social lives. It is citizenship in a political community that gives them their public persona, and it is that public persona that enjoys political, “substantial” equality.

Now, the idea of citizenship makes this an obvious and almost trivial observation. Citizens of a state enjoy rights (e.g., to vote) that noncitizens do not. But it is the idea of citizenship, the idea that rights and duties are the properties of citizens of a state (or an equivalent political body), that has come under attack today, most notably in the claims made for pre-political human rights regardless of membership in a political community. Human rights are said to be universal, and one bandies the phrase “citizen of the world” to indicate that rights inhere in individuals as individuals, even though “the world” is not a political entity that has the capacity to grant citizenship or protect its self-proclaimed citizens. It is against this “liberal” ideal that Schmitt polemicizes. “Equal rights,” Schmitt concedes, “make good sense where homogeneity exists” (Schmitt 1985a, 10). However, that “every adult person, simply as a person, should eo ipso be politically equal to every other person . . . is a liberal, not a democratic, idea; it replaces formerly existing democracies . . . with a democracy of mankind” (11). Schmitt again fortifies his claim with the observation that such a democracy of mankind exists nowhere in the world. But the claim is stronger than this empirical commonplace. Schmitt really asserts that a universal democracy could never exist because the homogeneous ground for such an all-encompassing extension of democracy would be too formal and abstract to serve the required purpose. The human as human can differentiate itself only from the nonhuman, but political equality is neither an affair of the species nor an affair of religious or ethical “brotherly” love. Therefore, to treat equality simply “as a consequence of birth or age and nothing else” would be to strip it “of its value and substance, because the specific meaning that it has as political equality, economic equality, and so forth—in short as equality in a particular sphere—would have been taken away.” On this view, then, equality is “value sphere” (Weber) or “system” (Luhmann) specific. Accordingly, an equality that attaches to the desocialized, abstracted human individual evades the question of inequality that makes its inevitable appearance in all the spheres or systems of social life.

This is the “logical” claim, for which Schmitt continually finds historical support, but which stands or falls regardless of empirical evidence. We can approach an understanding of what he means by a preliminary examination of Schmitt’s most famous distinction of all, that between the friend and the enemy.

In The Concept of the Political, Schmitt (2007, 19) dissociates the political from the state. The state “presupposes” the political, implying that the political can manifest itself in other than state forms (e.g., empire, confederation, etc.). The modern, European, post-Westphalian state and its post-1789 national derivative is for Schmitt an exquisite achievement, but political forms come and go. The political, however, remains, regardless of the shape its housing takes; therefore, defining the state is less important than defining the political, which he does by introducing the friend/enemy distinction. Teasing out some of its facets will be important for understanding the homogeneity he identifies as crucial to any democracy.

First, the distinction is a definition of the political only “in the sense of a criterion” (Schmitt 2007, 26). It is, therefore, applicable to any political form. Yet Schmitt’s elaborations clearly place his concerns within modernity—more specifically, within modernity as Weber conceived it. Weber had described modernity in terms of the differentiation of value spheres, such as law, the economy, science, and the like. This differentiation reflects the reappearance of the “warring gods” that we have already discussed in Part I and the resultant lack of overlapping coherence such a conflict brings about in the modern world. Belief in the classical unities has disintegrated. That something is beautiful guarantees neither that it is true nor good; the true neither the good nor the beautiful; the good neither the beautiful nor the true (Weber 2004, 22–23). More importantly, the various spheres of modern life operate by way of criteria (or codes, as Parsons and Luhmann will later say) that are unique to their own activities and therefore cannot be seamlessly mapped onto one another. What is profitable (economy) may not be legal (law). The educability of the individual (education) may not translate into the educability of the human race, as Enlightenment thinkers had postulated. The Kantian moral politician may produce immoral results. And so on. Schmitt reflects this Weberian scheme in his discussion of the political. The friend/enemy distinction “can be neither based on any one antithesis or any combination of other antitheses, nor can it be traced to these. . . . The political enemy need not be morally evil or aesthetically ugly; he need not appear as an economic competitor, and it may even be advantageous to engage with him in business transactions. But he is, nevertheless, the other, the stranger. . . . Thereby the inherently objective nature and autonomy of the political becomes evident by virtue of its being able to treat, distinguish, and comprehend the friend-enemy antithesis independently of other antitheses” (Schmitt 2007, 26, 27).

And second, the friend/enemy distinction relies on the difference between the public and the private. “An enemy exists only when, at least potentially, one fighting collectivity of people confronts a similar collectivity. The enemy is solely the public enemy, because everything that has a relationship to such a collectivity of men, particularly to a whole nation, becomes public by virtue of such a relationship” (Schmitt 2007, 28). Public enmity is different from private hatred and, for that matter, from love. Echoing Weber again, who had also discussed the ethical commands contained in the Sermon on the Mount (Weber 2004, 81–82), Schmitt referred to Jesus’s injunction to “Love your enemies.” Differentiating between the Latin inimicos and hostes, Schmitt claims that “diligite inimicos vestros” refers to a private not a public enemy. “No mention is made of the political enemy. Never in the thousand-year struggle between Christians and Moslems did it occur to a Christian to surrender rather than defend Europe out of love toward the Saracens or Turks” (Schmitt 2007, 29). Needless to say, this sentiment could equally apply the other way around. Saladin’s reputed magnanimity toward Christians did not in the least diminish his determination to repel the foreign invader. Public enmity has, “logically” speaking, nothing to do with personal love or hatred of the other. It has everything to do with asserting the political will of the collective in times of need against the political will of another collective.

The point of insisting on friends and enemies as the distinguishing mark of the political is manifold. To distinguish political enmity from moral condemnation or personal hatred aims at establishing warfare among political collectivities as an institution with commonly recognized limits and standards, to distinguish it from murder, individual or mass. If the political is defined as the act of distinguishing friends from enemies, then the collection of socially self-interested individuals within a political entity must find ways of forming a single collective will based on some common criterion that unites them. Individuals have widely varied interests as they confront each other in the several social spheres. They may be debtors, creditors, producers, distributors, and consumers in an economic transaction; legal contestants in a court of law; pupils, parents, teachers, and administrators in a school district; doctors, nurses, patients, and financial managers in a hospital; social scientists and test subjects in a controlled experiment; laboratory researchers and animal rights activists in an ethical dispute; factory workers on strike facing management on the one side and potential strike breakers on the other; or subjects and objects in any of a ridiculously high number of other examples that one could conceive. But if they are all of the same political collectivity, what calls them together as a collective when the political need arises? What holds them together Schmitt calls homogeneity, that one thing they can agree on when they wish or feel they have the need to look beyond their individual self-interest to pursue the defense or the greater good of the whole. It is the one thing or cluster of things, even in the fiercest of class, religious, or other conflicts, that allows them to see their opponents as legitimate contestants, as enemies, not criminals; it also allows them to embrace their domestic religious, economic, and political “others” as friends, members of the same overarching unity.

In a democracy the collectivity is called the people, and what makes the people a people is defined in terms of the political form they inhabit. That form in Schmitt’s day was still the state, and in Europe the state was characterized as the nation-state. Human beings as human beings were equal to each other the world over, though that equality had only the most abstract of meanings. As political beings, only citizens are equal to fellow citizens, and then only as citizens. Thus, for Schmitt, of all the distinctions that could divide the people in the nation into individual actors, one must tower over all the others: German/non-German. In the modern (post-Westphalian, European) world, lines of demarcation are not merely ideal but territorial. “Germany” has an ever-changing physical shape with an ever-changing but continuous identity. Without such a ground, literally and figuratively, around which a people can form (in contrast to others with other common grounds), equality, to repeat Schmitt’s contention, would be a formal term that promises much but delivers precious little. This may someday end, Germany (say) may cease to exist as a political unity, but if it does a new entity (Europe?) will emerge as the subject of political identity, and it will do so only by finding a common ground (perhaps physical, perhaps only figurative) by means of which it can establish its identity in contradistinction to other, now non-European identities. All along the way, differences remain. Despite the chic sensibility, we are never the world, or, if so, then only imperially.

At the risk of repetitiveness, I stress that Schmitt’s notion of homogeneity does not mean that heterogeneity disappears. Schmitt often gives a hypothetical menu of qualities from which to choose one or more to serve as the kernel of homogeneity—for instance, historical tradition, language, religion, ethnicity, and so forth.^[8] In a Germany defined, say, by language and the cultural tradition preserved in that language, Protestants will still be Protestants, Catholics will still be Catholics, Jews will still be Jews, and Muslims will still be Muslims. Bavarians will fiercely define themselves in opposition to Prussians, Prussians to Saxons and Swabians. Workers will rail against robber-baron capitalists, the bourgeois entrepreneur will disdain union workers as spoiled, lazy, and unkempt. But none of these differentiations serves as the prime distinction. German (however defined) trumps them all without denying any of them. In Schmitt’s world, for “a people” to exist, it must pick the national distinction around which to rally, if for no other reason than the fact that the national distinction is (or has become) the territorial distinction and thus the physically defensible distinction (Schmitt 1985a, 11). In a world of nation-states, the nation-state is supreme. To raise another distinction above all others—one’s religion, one’s level of education or income, one’s “local” territory—would be to incite civil war, which would make the collective vulnerable to forces and pressures coming from the outside. The democratic community, in Schmitt’s view, is forever defined by the threat of dissolution, either through internal civil war or external physical, economic, or “moral” pressure.

Nevertheless, the term “homogeneity” may still make our skin crawl. By the late 1920s, Schmitt began to use another term—integration—not as a substitute but as complement. The same year that Schmitt published Constitutional Theory , Rudolf Smend came out with his own study of the function of state constitutions. In it he developed his so-called Integrationslehre or theory of integration. Individuals were integrated into a constitutionally determined state form by three general means. First, citizens were integrated by virtue of the personality of their state’s leader. That is, they were formed to think of themselves as part of a greater whole, the state, through the representative function of the political leader, whether monarch, president, prime minister, chancellor, or whatever the leader(s) may be called. Perhaps the purest form of such “embodiment” of the nation through a sovereign leader is executed by a hereditary monarch. Quoting the liberal-democratic primary author of the Weimar Constitution, Hugo Preuß, perhaps with an ironic twinkle in his eye, Smend states that the ovation for a hereditary sovereign does not so much honor the person as serve as an act—and here he quotes Preuß—“of the self-consciousness of a unified people in a state” (“ein Akt ‘des Selbstbewußtseins eines einheitlichen Staatsvolkes’”).^[9] In the case of the functioning democracy of the Weimar Republic, this function is taken over by the Reichspräsident, who is elected by the entirety of the adult population. Interestingly, Smend further echoes what we have learned from Lorenz von Stein by stating that the bureaucracy and other state functionaries should also be considered an integrative “person” (Smend 2010, 146) and thus perform the same representative service. Both the leader and the forceful arm of state action are persons who in some fashion stand in for the unity of the political community.

Second, citizens are also functionally integrated in the political order. Here Smend has in mind any activity that reinforces the sense of living in a community with a collective will. Means of functional integration range far and wide, from rhythmic physical activity found in work or the military^[10] to more rational or at least thoughtful activities like elections, referenda, and other forms of political participation. Smend, therefore, defends the function of the parliament against both Schmitt’s critique and Richard Thoma’s defense. Like Thoma, Smend believes that parliament needs no ideological justification; thus Schmitt’s ideology critique misses the mark. An ideological justification for the institution may easily become outdated or forgotten even as its integrative function continues. Against Thoma (and Weber) he argues that simple success in executing political decisions or serving as the breeding ground for future leaders is not enough to justify parliamentary government. Rather, parliament finds its ultimate political meaning in the formation and organization of its citizens into interested groups who ultimately find their collective identity in the fashioning of a workable, governing whole through the acceptance of majority rule. It is through party-
political participation (supplementing or replacing direct action in modern mass democracy) that dominion or rule (Herrschaft) of the leader can have its integrative effect.

Finally, the integration of a state’s citizens is brought about factually, or, one could also say, emotionally, on the level of symbols, from the display of flags, banners, seals, and the pledges of allegiance and anthems that accompany them to the narrated and pictorial representation of historical events in schools and during patriotic holidays. It is precisely the rationality and size of the modern state machinery that provokes the necessity of non-rational symbolism. Without symbolic representation, there could be no overview, no sense of the whole, only the impression left by the cold, fragmented, disenchanted, rationalized workings of the state apparatus. Symbolic representation attempts to make citizens conscious of the fact that the state is not mere machinery but also a community based on shared history, shared culture, and shared values.

There is much in Smend’s notion of integration that Schmitt could use for his own articulation of modern democracy. Of the three forms of integration that Smend delineates, Schmitt would of course have the biggest problem with the second. Versions of Smend’s views of the function of parliamentary governance have always been propagated; indeed, the commonly accepted notion, voiced by Lorenz von Stein as well, was the view that the bourgeoisie had been integrated into the political community, formerly dominated by the aristocracy, by way of parliamentary participation in constitutional monarchies and republics. On the other hand, in the turbulent 1920s Schmitt could see nothing in liberal, party-political, parliamentary procedures but the danger of disintegration, which in fact came to full fruition in the early 1930s. Nevertheless, given what Schmitt had already written in his own work on the constitution, one can see how the other two moments—the function of the leader and the means by which people attach themselves to the “myth” of the nation—had their appeal. Schmitt did occasionally use the term “integration.” In particular, he would note the urgency of “integrating” the proletariat in the twentieth-century German democratic state, just as the bourgeoisie had been integrated in the constitutional monarchy of the nineteenth century. But this is pretty much as far as Schmitt went in dealing with the issue of class and class conflict. Schmitt was hardly unaware of economic issues and debates; they are shot through the Weimar Constitution, party battles, and the political theory of the time, and some of his best students and sometime admirers, like Otto Kirchheimer and Franz Neumann, were socialists or at least social democrats. Yet “class” never appears on Schmitt’s menu of homogeneous options. On the surface, the reason is obvious. If the idea is to preserve the nation by identifying the constituent power with the collective called “the people,” then dividing the people into warring classes could lead to nothing but civil war. Schmitt, then, could use class as an operative principle only if he could accept the Marxian (or “Bolshevist”; see the discussion on Lukács above) philosophy of history, which prophesized the apocalyptic elimination of economic strife. Economic differences, however, could not realistically be dealt with by such quasi-magical incantations.

I will return to Schmitt’s glancing engagement with economic inequality when I examine his notion of the “total state” in the next chapter. First, we must complete the outline of his picture of the modern democratic nation-state.

The People as Constituent Power

In Constitutional Theory, the distinction between liberalism and democracy is starkly portrayed as the difference between the private and the public, between civil society and the state, between the economically driven denial of politics and the existential necessity of the political. This distinction is organizationally portrayed by the juxtaposition of section II, “The Rechtsstaat Component of the Modern Constitution,” and section III, “The Political Component of the Modern Constitution.” Under the “Political Component,” Schmitt gives a thorough definition of his conception of democracy, to which we will shortly turn. In the former, however, he informs us that the Rechtsstaat, the state governed by the liberal rule of law, is not really a state form at all, but rather the enumeration of means by which civil society and the private, pleasure-seeking individual can keep any hint of the state at bay. As a Rechtsstaat, the “state appears as the strictly regulated servant of society” (Schmitt 2008a, 169). “Bourgeois freedom” is the guiding value, which leads to the following formulation of the essence of liberalism: “The individual’s sphere of freedom is presupposed as something prior to the state, in particular the freedom of the individual is in principle unlimited, while the authority of the state for intrusions into this sphere is in principle limited” (170).^[11] Organizationally this priority of the individual over the state is guaranteed, as we have already seen, by a series of basic rights and on the separation or balance of powers.

Though Schmitt means his definition to be a critique, a consistent liberal would find here little with which to argue. Basic rights—now commonly called human rights—are generally thought of as pre-political, and fear of state power and the desire structurally to limit it motivates all liberal constitutions to such an extent that nowadays “constitution” and “liberal constitution” are synonymous. Again, Constant can be our guide. “No authority on earth is unlimited,” he admonishes us, “neither that of the people, nor that of the men who declare themselves their representatives, nor that of the kings, by whatever title they reign, nor, finally, that of the law. . . . The individuals possess individual rights independently of all social and political authority, and any authority which violates these rights becomes illegitimate” (Constant 1988, 180). Not only is “the sovereignty of the people . . . circumscribed within the limits traced by justice and by the rights of individuals,” but even “God, if he intervenes in human affairs, can only sanction justice” (182).^[12] In the liberal world so depicted, the single most important political imperative is to place limits on the political. It would be difficult, if not impossible, to find anyone today who, when push came to shove, would not seek protection behind the shield that the word “right” claims to give us. Even those who wish to limit the rights of others do so not by denying rights, but by claiming a superior right, such as recourse to “religious freedom” (I speak now of a phenomenon current, as I write, in the United States) that seeks to legalize discrimination against LGBTQ individuals (for instance) based on a claimed religiously instructed moral conscience.^[13] As already mentioned, even Schmitt recognized the enjoyment that comes with guaranteed rights. Yet one may still ask whether the equal right to the individual pursuit of happiness is the be-all and end-all of the political. And even if the answer to that is “yes,” one may still legitimately ponder whether such a pursuit can best be executed in a strictly liberal society in which private pleasures are inextricably linked to (though not exclusively determined by) the accumulation of private property. A time-honored question, never answered in a way that has satisfied all, asks whether communities exist so that some, and only some, may enjoy the wealth produced by all.

Schmitt’s concerns regarding the triumph of the bourgeois individual over the state citizen can be usefully, though carefully, compared with those of the young Marx. In On the Jewish Question, Marx, seemingly echoing Hegel’s state/society distinction, contrasts rather than conflates the “rights of man and citizen.” The rights of man “are simply the rights of a member of civil society, that is, of egoistic man, of man separated from other men and from the community.” The right to liberty, he continues, is the “right of the circumscribed individual, withdrawn into himself.” Likewise, the right to property is founded upon “self-interest.” Most tellingly, equality is nothing but “the right to liberty,” as long as liberty is confined to its liberal definition (Tucker 1972, 40). To what purpose, then, does the political community exist in this self-interested view of the world? With no little indignation Marx concludes:

The state circumscribed by liberal safeguards, then, has no other function than preserving the rights of the “egoistic” individual pursuing his or her private pleasures, and both Karl and Carl have a problem with that. Schmitt’s antidote is not Marx’s; it is not the achievement of perfection by way of the emancipation to come; rather, it is the “muscular” democracy to be shored up in the here and now. It is therefore not surprising that section III of Constitutional Theory, “The Political Component of the Modern Constitution,” is the section in which democracy receives its fullest definition. For the Schmitt of 1928, democracy is all but coterminous with the political and thus with the state, at least for as long as the state serves as the vehicle of the political. In the heart of every modern constitution, then, the putatively pre-political rights of the individual are pitted against the political decision of the people, or, more succinctly, private property and private pleasure confront the public common good in a fight over the control of the political apparatus and to what purpose that apparatus is to be put. It is for this reason that the notion (“myth”) of the people or the nation as constituent power looms so large in Schmitt’s writings of the late 1920s and early 1930s.

Stripped of all its qualifying phrases modifying the subject, the preamble to the Weimar Constitution of 1919 reads: “The German people . . . has given itself this constitution” (Das deutsche Volk . . . hat sich diese Verfassung gegeben), a statement to which Schmitt often refers.^[14] The constitution thereby unequivocally announces who the constituent power is—“das Volk”—that is, “the people” as a collective singular (“The German people . . . has”), not a collection of individuals (i.e., not “have”).^[15] Without using the term (which did not yet exist), Schmitt specifically denies that naming the people the author of the constitution is a performative act. “It is not the case that the political unity first arises during the ‘establishment of a constitution.’” Rather, the constitution results from an “act of the constitution-making power,” an act that “constitutes the form and type of the political unity, the existence of which is presupposed. . . . Such a constitution is a conscious decision, which the political unity reaches for itself and provides itself” (Schmitt 2008a, 75–76). Schmitt’s pronouncement is both direct (indicative sentences) and purportedly descriptive (not normative), yet slippery. “The German people” is both the subject of the utterance—the German people has given itself this constitution—and what the utterance presupposes—there is a German people who has the power to give itself this constitution. A political unity is said to exist prior to the shape its peculiar political identity takes. This preexistent political body gives itself distinct political form by way of a politically conscious act of giving itself a constitution. The inarticulately political becomes articulated, delineated. Therefore, a people and its constitution are not identical. The people is the will that authors a constitution and may also be the will that destroys an old constitution and fashions one anew. The “German people” of the preamble to the Weimar Constitution, as constituent power of that constitution, necessarily precedes the act of this formal creation, which has to be seen, therefore, as a deliberate political decision and not simply as the resolution of self-evident norms or the result of logical deduction. The German people has given itself this and no other constitution, at this and no other particular time, by this and no other deliberate act. “The people,” then, as the subject of political decision, must be thought of as more than just the historically contingent state or its historically contingent constitution.

This emphatic contention that “the people” (all 80 million Germans, all 330 million Americans in the United States, all 1 billion Chinese) have and exercise a united will is, well, a myth. The question is not whether the myth is “true,” but what purpose it serves. Hans Lindahl, one of the more sensitive and sympathetic critics of Schmitt and the paradox of constitutional origins, affirms that democracy must embrace the “ontological status of the collective self” for the necessary legitimacy it lends to the political order. “For Schmitt, liberating democratic politics from its liberal containment requires acknowledging that a legal constitution is valid because it is the political decision of a people.” Yet, the “paradox of constituent power” resides in what by now has become the performative commonplace, one that Schmitt explicitly denies, namely “that self-constitution begins as the constitution of a political unity through a legal order, not as the constitution of a legal order by a political unity” (Lindahl 2007, 22). The paradox consists in the necessary simultaneity of legitimacy and legality in which each validates the other. The people serves as the author of and thus legitimacy for the constituted order, even though it first exists at the very same moment as that order comes into being. Put theologically: God’s creation of the world creates God. To think otherwise, to assume the existence of the people before the constitution, would be to succumb to a “metaphysics of presence.” To avoid the sin of presence, which the last half century of critical theory has emphatically warned us against, Lindahl postulates the necessity of precisely the liberal accoutrements that Schmitt wishes to disregard.

Lindahl replaces the metaphysics of presence with what could be called a metaphysics of paradox and a politics of conflict or contradiction. In this, he is in line with other positive or “left” receptions of Schmitt, most notably Chantal Mouffe.^[16] If one knows anything about my work on Niklas Luhmann, one knows that I have joyously committed myself heart and soul to the fundamental productivity of paradox and to a politics of dissent rather than consensus. Schmitt’s commitment to a substantive reading of constituent power contradicts my fundamental skepticism, based in part on my inability to find myself included whenever a politician voices the well-worn phrase “the American people.” Yet somewhere, in the deep recesses of my (nonexistent) soul, I would not mind discovering an America in which I could find myself (though I do not for a minute harbor the illusion that I ever will), which is precisely why I wish to entertain Schmitt’s reading of the “ontological status of the collective self.” In a world and intellectual climate of suffocating conformity, highlighting difference, incommensurability, and “questionability” is certainly a virtue. At any rate, in Schmitt’s Germany, in which civil war continuously bubbled just underneath the surface, often erupting through the cracks and fissures of daily life, placing “the people” in question, pitting each power and interest against the other, may have had less appeal. The downward disintegrative spiral in which the twenty-first century seems to be inextricably caught up may eventually put some critical pressure on the virtue of continuous questioning, a time for which we may wish to be prepared. So let us look more closely at how Schmitt configures constituent power by examining what I take to be his direct model, Emmanuel Sieyés.

At one point in Constitutional Theory, Schmitt finds “nation” to be a “clearer” term than “people,” for nation “denotes, specifically, the people as a unity capable of political action, with the consciousness of its political distinctiveness and with the will to political existence, while the people not existing as a nation is somehow only something that belongs together ethnically or culturally, but it is not necessarily a bonding of men existing politically” (Schmitt 2008a, 127). If Lindahl is correct, and the people emerge simultaneously with the legal order that the people create, then this notion of the nation seems muddled or wrong. Recall, however, Schmitt’s just-so story about how laws emerge.^[17] First we have land appropriation and then distribution. It is with the act of distribution that law is established, because one has alternatives: collective ownership of all the land, public ownership parceled out to households, private ownership with rights to buy and sell, and so forth. Here one can imagine—with difficulty, it must be admitted, but that goes for all the just-so stories created by early modern natural law theorists (Hobbes, Locke, et al.)—that the original appropriation was conducted by a “nation” that exists collectively before land was appropriated and then distributed, that is, before the nation created for itself a constitution. At any rate, whether “nation” is clearer or not, at least here we have a distinction between “people” referred to as a social or familial group and “people” as a collective, as politically self-conscious and thus the subject of political decision. It is surely not coincidental that Schmitt turns to the concept of “nation” here, as nation is the operative term used by Sieyès, a term that in fact answers the question of his most famous pamphlet, What Is the Third Estate? It could plausibly be argued that large sections of Schmitt’s Constitutional Theory are extended elaborations of that text’s fifth chapter.^[18]

“In every free nation,” Sieyès states, “there is only one way to put an end to differences about the constitution. Recourse should not be made to the Notables, but to the Nation itself. If we lack a constitution, then a constitution must be made, and the Nation alone has the right to do it” (Sieyès 2003, 133). We are straightaway faced with Lindahl’s conundrum: The nation is posited as the author of the political and legal form that in fact is the very institution that creates the notion of the nation in the first place. To justify his claim, Sieyès tells his own just-so story, staged in three historical eras. The first epoch, in which “one can imagine a more or less substantial number of isolated individuals seeking to unite,” is “characterized by the activity of individual wills” serving as the source of all power. Given the terms we have been using, we might grant the title of “society” to this epoch and wonder how a political form (“state”) can be said to come about. We learn that in the second historical epoch of Sieyès’s story, a “common will” develops, one that is exercised directly by everyone. To “give their union consistency,” the assembled multitude “agree[s] on public needs and how to meet them.” Individual wills still lie at the source of these deliberations, but power now “belongs to the public,” “resides solely with the whole.” “Without this unity of will, it would not be able to make itself a willing and acting whole” (134). And finally, in the third epoch, when the population has grown too large to act directly, the common will becomes “a representative common will,” exercised by a few to whom the nation has delegated limited power to act on its behalf. It is at this stage that a constitution—that is, the form of representative government—comes into play. It is worth quoting Sieyès at some length, so that later we can hear the resonance (and some dissonance) in Schmitt’s description of the constituent power and that which it constitutes. “But how,” Sieyès asks,

In sum: “In the very first epoch it had all the rights of a nation. In the second epoch, it exercised them itself. In the third, it turned all the rights needed for the preservation and the good order of the community into rights exercised by its representatives.” And, displaying a touch of bravado, he adds: “If you stray from this sequence of simple ideas, you will simply stumble from one absurdity to the next” (137).

It is important to note the stress that Sieyès places on the absolute temporal priority of the nation, so please pardon this last longish citation.

From a political-theological point of view, it can be said that the will of the nation is the functional equivalent of God’s will; the nation creates the political constitution of its own existence much like God created the universe. We may wish to see God’s command, “Let there be light,” to be an act of self-creation—God comes into being at the moment (and let us call that moment the Big Bang) light emerges from darkness; but the book of Genesis does not see it that way. God willed the universe into being by drawing distinctions: separating light from darkness, the firmament from water, and most importantly, God Himself from what He created. Recalling the discussion of God’s absolute and ordained power, we can see that just as God had the power to create or not create the universe, and to create it in this and not some other way, so too does the nation have the power to create or not create a constitution, and to create it in this and not some other way. And we note that just as God remains the power over and above His creation, able to destroy it and create it anew if He so desires, so too does the nation in relation to its creation. The nation is no more bound to the constitution it has fashioned for itself than was God when He destroyed the social order by flood and commanded Noah to start humanity anew, or when He sent His “only begotten Son” to change the fundamental law from circumcision to baptism. And finally, just as God is the legitimacy of both the establishment and the destruction of the ordained order, so too is the nation the legitimacy of the constitution it underwrites and the revolution against the constituted order leading to a new constitution, a newly ordained political order. The nation is both the legitimacy that stands behind the constitution and the legitimacy that stands behind a new constitution after a successful revolution. “The Nation” is the name given to the “myth” of legitimacy, a myth based on the sovereign will of the people, not a myth based on the immutable and immutably sovereign structure of nature that asks to be understood (“right reason”) and obeyed. With this in mind, let us now move back to Schmitt.

So, the paradox of origin and the putatively performative quality of all “We the people” utterances notwithstanding, Schmitt reads the preamble to the Weimar Constitution—“The German people . . . has given itself this constitution”—in the same way that a Jewish, Christian, or Muslim believer reads the opening lines of the First Book of Moses, called Genesis—“In the beginning God created the heaven and the earth”—namely, literally. Furthermore, dipping his toe into medieval theological controversies, Schmitt also implicitly confirms that the creation of the world was an act of God’s will, and not the unfolding of God’s nature, by affirming the parallel will of the people as the constituent power of every democratic constitution. Alluding to the “traditional and eternal metaphysical dispute” framed by the question “whether something is good and just, because God wills it, or whether God wills it, because it is good and just,” Schmitt affirms “that the constitution must be a decision and every act of the constitution-making power must necessarily be command” (Schmitt 2008a, 125). A democracy must be founded by the will of the people, not the impersonal and imputed universality of norms.

Furthermore, the people as constituent power never exhausts its omnipotence. It precedes the authorization of a constitution and then remains outside it, as legitimation and as threat.

This basic point is elaborated later, again using clear spatial metaphors to describe the three ways a people appear within and yet also outside of the constitution. First, as original subject of the constitution-making power, the people stand vor and über the constitution, that is, “before” or “anterior” to and “above” it.^[21] Second, once the constitution exists, the people are of course included “within” (innerhalb) the constitution as they exercise “constitutionally regulated powers,” chiefly as the electorate (268). Yet these two moments no more exhaust the capacities of the people for Schmitt than they do for Sieyès. The nation, the people as constituent power, remains neben, or next to the constitution. Thus, the people as a constituted power within the constitution—the people as voters, party members, officeholders—are clearly distinguished from the people as constituent power. The people can never be wholly reduced to a mere state “organ” or “functioning bureau,” but rather “persists as an entity that is unorganized and unformed” (271).^[22]

If we return one last time to Walter Benjamin’s scheme of mythic and divine violence, we can now give it a constitutional interpretation, or rather two interpretations. On the one hand, mythic violence can stand for a political constitution, with lawmaking violence standing for the constituent power and law-preserving violence for constituted power. Divine violence would then be the wholly other of law and thus of any and all political constitutions. This radical alterity would give it its chiliastic significance.^[23] On a second reading, however, we can say that mythic violence stands merely for the constituted order. Here, lawmaking violence may be thought of as something like the legislative process and law-preserving as the executive and bureaucratic apparatus that sustains the legal order. Divine violence would then be the sign for constituent power, the voice of God that in a democracy becomes the voice of the people. It stands before mythic violence by virtue of the fact that divine violence constitutes mythic violence; and it stands next to the constituted order, ready, if necessary, to destroy that order and reconstitute it differently. Divine violence would be the absolute power of God. He establishes an order (mythic violence) that reflects his ordained power, but He remains outside that order, ready, if necessary, to flex his absolute muscle once again to create anew. This may not comport with Benjamin’s intention, but it nicely conforms to the notion of constituent power advanced by Schmitt.

The Absolute and Ordained Power of the People

As the constituent power of a democratic constitution, the people flexes its absolute might. This absolute power of the people does not cease to exist once the act of constituting is completed but remains as a formless presence outside the constitution, simultaneously as the legitimacy of that order and as the source of its potential alteration or overthrow. According to Schmitt, the constitution that the German people gave itself in 1919 had a democratic form—popular sovereignty—with a liberal shell designed to constrain the popular will. That shell of rights and restrictions on state power cocooned the bourgeois individual in the “utopian” (Sorel) belief that we will all eventually flourish as so many butterflies. The parliaments of the nineteenth-century constitutional monarchies and republics were the site where agents of the bourgeoisie advocated for the realization of their social (primarily economic) interests. It was and remains a battlefield, not a shelter. We have seen that unlike Hegel and Stein, but like Marx, Schmitt had no use for the liberal institution of the parliament. Rather, he was more interested in the search for evidence pointing to the political participation of the people as a collective. If the people as constituent power remains outside of the constitution, do we ever see or feel its presence in the activities of the people in their ordained duties as a constituted power? One answer to that question is: certainly not in parliament. To explore other answers, we must direct our attention to two related topics advanced by Schmitt: direct democracy and plebiscitary leadership.

To understand the following discussion, we need to know some basics about how the Weimar Constitution divided governing power. The Reichstag was the parliament and thus the seat of legislation. The electorate voted for party lists, not for individual members. Thus, roughly speaking, if the Social Democrats received, say, 35 percent of the vote, 35 percent of the members of parliament were Social Democrats. Given the multiplicity of political parties during the Weimar era, no party ever received an absolute majority; therefore, parliamentary governance was conducted by coalitions of parties, usually some combination of the so-called constitutional parties (those more centrist parties most committed to the republic), the Social Democratic Party, the Catholic Center Party, and the German Democratic Party. The leader of the coalition government was called the chancellor (equivalent to a prime minister). In addition, the electorate as a whole voted for an individual as Reichspräsident for a seven-year term. The president had some of the traditional duties of the executive arm of the government, including representing Germany in foreign affairs, commanding the armed forces, appointing most civil servants, and granting pardons. Most significantly, the president had emergency powers. In cases of rebellion, civil unrest, or other threats to the country, he could use military force at his discretion and suspend basic rights. The president’s emergency powers were used often in the early and late years of the republic, when civil war or near civil war conditions prevailed.^[24]

Our concern will not be with the more famous Article 48^[25] but with Article 73, which deals with what in the German of the day was called Volksentscheid (referendum) and Volksbegehren (people’s initiative).^[26] Here are the first three paragraphs of Article 73:

To summarize: First, if the parliament passes a law, the president may call for a nationwide referendum of all eligible voters to see whether the legislation should be enacted. Second, the outvoted minority of parliament may request a referendum on a passed or rejected piece of legislation, provided at least 5 percent of eligible voters agree with them. Finally, the voters themselves may initiate a specific law (composed presumably by a citizen’s committee) with a vote by at least 10 percent of eligible voters. If the Reichstag accepts the proposed law as written, no referendum is held; otherwise it is left to the voters at large to accept or reject the proposed legislation. It should be noted that in 1921 a law was passed stating that should the legislature propose an alternate law to the one as framed, then the referendum would be held to choose between the two versions. As Schmitt rightly notes, that law technically violated the constitution by eliminating a crucial aspect of the initial proposal, in that it no longer made it possible to reject the proposed law altogether, only to select between the two versions.

Why is this important to Schmitt? First, it is clear that “the people” who are referred to in a Volksentscheid are not the people as constituent but as constituted power. With the constitution, the people as constituent power has given the constituted people certain functions, most notably the duty to vote by way of secret ballot. Article 73 in particular gives the electorate means to exercise a limited form of direct democracy. In Article 73, paragraph 3, the electorate is configured to be a rival to parliament. It may initiate legislation by delegating a committee to frame a proposed law and, with a 10 percent vote, demand that the legislature act, either by accepting or rejecting the electorate’s proposal. Should the legislature reject their proposal, then a general referendum will be held. In part because the procedure in this paragraph becomes muddied by a subsequent law, Schmitt is more interested in the simple referendum, as spelled out in the first two paragraphs. Here the electorate is asked to adjudicate a dispute, either between the legislative branch of government and the president (paragraph 1) or between a minority in parliament and the majority (paragraph 2). Schmitt remains adamant that the people who are asked to adjudicate the dispute are not sovereign. They can be called “the people” only because, in their role as electorate in a referendum, they appear not as magistrates and not as functionaries, yet are asked to settle irrevocably a conflict with a simple yes or no vote (Schmitt 2014b, 74). In so doing, they undertake a “sovereign act” because of the “decisionist” and exceptional nature of the situation (72). “One cannot simply say,” Schmitt elaborates,

Only the people as constituent power is sovereign, but here the sovereign has ordained an instance in which the people as electorate take on quasi-
sovereign form in a moment of exception. This is perhaps the closest modern mass democracy can get to the ideal of direct democracy.

Accordingly, if in a referendum the people as a collective singular never truly leaves the shadows of the state of nature to intervene directly in the day-to-day political process, there is another way in which it can make its presence felt: acclamation (Schmitt 2014b, 51–54).^[27] A people, Schmitt remarks, that can appear together as an assembled community, gathered together in some open-air field or marketplace, is something quite different from a collection of individuals as members of an electorate casting their votes in secret to be added up later and elsewhere. The former has a collective will, and that will is made known by way of a simple and direct affirmation or rejection. Acclamation is not about the display of expert knowledge, but the demonstration of trust or lack of trust in a leader’s (or leaders’) decisions. Acclamation is a referendum or, rather, a modern referendum is a limited type of mass-democratic acclamation. Schmitt finds in the constitution another form of acclamation that brings the people as constituent power a step or two further out of the shadows and into the public sphere of the constituted order: plebiscitary leadership affirmed or rejected by acclamation.

Recall for a moment Stein’s description of the function of the constitutional monarch and the administrative apparatus in his or her control—in Benjamin’s terms, both the waltende and the verwaltete Gewalt that he or she exercises; in more conventional terms, his or her authority and power. Together, the executive and its bureaucratic apparatus stand for the state, which in turn represents the unity—after reading Lindahl, one is tempted to say the ontological unity—of the political community in opposition to the particular interests of the individual members of the society. Schmitt attempts to graft aspects of that model onto the constitutional structure of the Weimar Republic. The contract between prince (state) and people (bourgeois society) that lay at the foundation of the nineteenth-century constitutional monarchy is replaced by a structure that sets the constituent power of the people apart from the people as social beings with discrete and limited political functions. By analogy, the Reichspräsident stands in for the representative function of the monarch. Only he (both Weimar-era presidents were men) is elected by “the entire German people” (Article 41); he is not a member of parliament and stands over against it (Article 44); he manipulates the symbols of national unity in the arena of international affairs; and only he is charged with emergency powers to face internal dissension and civil strife. Therefore, only he represents the nation as a whole (Schmitt 2008a, 416).

In 1923, Schmitt had already developed a notion of representation, modeled on a particular understanding of the function of the pope in the Roman Church, which, in Constitutional Theory, he carries over to the position of the president. With this particular notion of representation, coupled with a reclaimed need for acclamation in the political process, Schmitt develops a notion of plebiscitary democracy that is meant to give the state (the unity of the political community) at least commensurate power over against society (the interests of individuals and groups who exert their influence in the legislative branch of society).

Hanna Fenichel Pitkin (1967) has given us both a taxonomy and a history of the concept of representation that will enable us to put Schmitt’s assertions in a suitable context. For brevity’s sake, one fundamental distinction will be emphasized. Pitkin claims that if we ask about the “substantive content” of representation, then “two directions of inquiry are open to us. We may ask what a representative does, what constitutes the activity of representing. Or we may ask what a representative is, what he must be like in order to represent” (59). Thus, she labels the operative distinction “acting for” (chapter 6) and “standing for” (chapters 4 and 5). Quite helpfully, she notes that in German the distinction is clearly marked by contrasting “vertreten, to act for another, and darstellen, to stand for another” (59). Etymologically, the latter is closer in meaning to the Latin original, representare, “to make present something that is not in fact present” (92; see also 241). This is the contrast we are after because this is the contrast that Schmitt emphasizes, using the Latinate repräsentieren (verb)/Repräsentation (noun) exclusively for his preferred meaning, and vertreten/Vertretung for the liberal notion of parliamentary representation, which in the English translation of Constitutional Theory is rendered “advocate for/advocacy.” Now, for Pitkin, the distinction is not a stark either/or. In the modern political world, the representative acts for the represented, and in so doing makes the absent represented present. By maintaining the linguistic distinction Repräsentation/Vertretung, Schmitt reduces the liberal brand of representation of interests in parliament to a lawyer/client relationship. The advocate argues for the clients’ interests;^[28] the representative brings the absent represented into presence. The former works for individuals and interest groups, the latter for the people as a whole.

Pitkin further subdivides representation as “standing for” into descriptive and symbolic modes. “Standing for” as descriptive representation works mimetically. Thus, a “representative body is distinguished by an accurate correspondence or resemblance to what it presents.” As an example of this view, Pitkin cites John Adams as follows: “A representative legislature, John Adams argues in the American Revolutionary period, ‘should be an exact portrait, in miniature, of the people at large, as it should think, feel, reason and act like them’” (Pitkin 1967, 60).^[29] One hears such sentiments today in phrases like “my cabinet should look like America” as justification for the diversity (gender, sexual preference, race, etc.) of the members chosen.

The second mode of “standing for” Pitkin calls “symbolic,” and here we hit pay dirt. “Symbols . . . are often said to represent something, to make it present by their presence, although it is not really present in fact” (Pitkin 1967, 92). Objects, like flags, can act as symbols for the nation, but so too can human beings.

Besides striking the notes that have echoed throughout part II of this book, the stress on unity that one finds in both quotations in the above passage suggests a significant twist to the notion of “standing for.” Seemingly passive, asking for little or no specific action on behalf of the interests of the represented, “standing for” can nevertheless have an active quality. “If the main goal to be achieved is the welding of the nation into a unified whole, the creation of a nation, then it is tempting to conclude that a single dramatic symbol can achieve this much more effectively than a whole legislature of representatives” (106–7). That dramatic symbol can of course be a charismatic leader, and once such a figure is produced, discussion of fascism cannot be far off. Indeed, Pitkin eventually finds her way to the almost obligatory mention of Hitler (108), but she is sensitive to alternate readings, including the function of Renaissance kingship and even modern “despotism” that, on occasion, may more adequately “represent” and thus serve the collective it leads (107). The upshot of thinking of representation as forging a consciously collective sense of the political whole is that symbolic representation (as, perhaps, opposed to its descriptive cousin) cannot be thought of as merely passive. “The concept of the political leader as essentially passive, standing for others symbolically, must thus be supplemented by the view that he is a symbol-maker, making himself into an accepted leader through his activity.” The point of this type of activity is “to foster belief, loyalty, satisfaction with their leaders, among the people” (107). With all this under our belt, let us return to Schmitt.

“To represent,” Schmitt claims, in terms now familiar to us, “means to make an invisible being visible and present through a publicly present being. The dialectic of the concept is that the invisible is presupposed as absent and nevertheless is simultaneously made present” (Schmitt 2008a, 243; translation slightly altered). The pope, for instance, “represents” Christ by bringing him forth in a public manner, by making his presence visible to the gathered community of believing Christians.^[31]

Similarly, the leader of a political community—the monarch in pre-
modern Europe, the Reichspräsident in the Weimar Republic—represents or bodies forth the “political unity as a whole. . . . Only he who rules [regiert] takes part in representation. The government [Regierung] distinguishes itself from administration and business management by presenting and rendering concrete the spiritual principle of political existence. . . . Every genuine government represents the political unity of a people, not the people in its natural presence” (245).^[32] Indeed, it is precisely to a people in its natural presence that the political unity of a people is represented. The invisible constituent power that remains formlessly next to the constitution is coaxed out of the shadows in the hope that it may somehow make its presence known.

It is through acclamation, which we witnessed Schmitt bring into the discussion of constitutionally sanctioned referenda and initiatives, that the individuals who compose the political unity show themselves as the singular people and constituent power. We can visualize the relationship of representation and acclamation with a theater analogy. It is evening. As individuals we enter the lobby, which is still part of the private, economic sphere. We buy tickets and, if in Europe, a program. During intermission we return to the lobby for more economic exchange—a drink, sweet pastries. Within the theater itself something else happens, however. The space becomes a public space, a space in which we see and are seen. At first we are still private citizens, we are spectators of the action on a public stage. The actors present to us the actions of embodied characters. The actors are of us—we mingle with them before and after the play—but now stand before us engaged in public speech and action. In full theatrical majesty and dignity, they make present and visible the collective—the “we-the-people”—as a political unity. Each individual now sees the whole of which he or she is a part. The citizen-spectator, however, need not—indeed, should not—remain passive. For the representative of the people to have adequately made the invisible visible, the publicly gathered citizen-spectator must recognize and acclaim the deed. If not, if the attempt has gone awry, then the gathering must reject the attempt. Required is either the recognition that those who are charged with representing the people to the people have in fact done so or the recrimination that they have failed. Those in the theater either cheer and applaud or boo and hiss.

Those cheers or boos function as affirmation or rejection of a leader’s attempt to “stand for” the whole. “The natural form of the direct expression of a people’s will is the assembled multitude’s declaration of their consent or their disapproval, the acclamation” (Schmitt 2008a, 131). In our fictional theater, acclamation, whether positive or negative, could be direct; in modern mass democracy, such gatherings of the whole are impossible. Hence, the modern mode of acclamation, according to Schmitt, is public opinion. We must keep in mind the distinction Schmitt wishes to uphold, namely the one between the people as organized electorate within the constitution and the people as constituent power next to the constitution. The modes of administering government (through parliament, executive branches, courts, etc.) and the basic rights of individuals, including the right to assemble, are all manifestations of the constituted order and mark the place of the people within that order. Even voting by secret ballot is essentially an expression of the private interests of the individual (in the “privacy” of the voting booth) and not the voice of “the people.” Public opinion as the modern form of acclamation embodies the voice of the people outside of these organized, essentially private, administrative functions. To be able to secure the clear distinction between liberal forms of limiting the will of the people in the interest of the individual, on the one hand, and democracy as the political form of the collected people, on the other, public opinion must remain “uncontrolled,” “diffuse,” “unorganized.” “Precisely like acclamation, [public opinion] would be deprived of its nature if it became a type of official function. . . . It can never be recognized legally and made official,” which is why Schmitt—surprisingly, given his contempt for the relative dysfunction of party politics in the Weimar era—links public opinion with the function of political parties (which, as he notes, are mentioned nowhere in the Weimar Constitution). “There is no democracy without parties,” he declares,

In our fictional theater, the outburst of bravos or catcalls must not be orchestrated by the management.

Modern democracy therefore requires representation to be symbolic, embodying the invisible essence of the demos, and carried out by a popularly elected leader whose bearing exhibits the necessary dignity and gravitas. People function within organized politics as interested individuals, but also, through their leader’s (or leaders’) acts of representation, recognize their public, collective stature as constituent power and make that power visible and effective through “unofficial” channels of public opinion. This arrangement corresponds exclusively neither to representative democracy (though it cannot do without the “acting for” mode of legislative representation) nor to direct democracy. It preserves, or so Schmitt proposes, the idea of democracy, the idea of the public citizen over the private individual and the public body over the masses with divided interests. Liberal participation, which may be indispensable, is nevertheless trumped by democratic participation, which does not directly make political decisions, but simply affirms or rejects decisions that are made elsewhere.

Most will find Schmitt’s affirmation of plebiscitary democracy—symbolic representation of political unity coupled with acclamation—frightening. The gamble involved in trading our right to private pleasures for public duties has all the allure, in our cautious, shell-shocked age, of betting our life savings at the craps table. It is not surprising, therefore, that Pitkin finds in symbolic representation, when taken to the extreme, the fascist theory of representation as exemplified by the leadership principle. “Representation is a power relation, that of the leader’s power over his followers,” she writes, with reference to symbolic representation; “Hitler claimed that he had greater right to say that he represented his people than did any other statesman” (Pitkin 1967, 108).^[33] And indeed, in 1933 Schmitt did not boo or hiss, but loudly and eagerly applauded and cheered. Is there a way, then, of trying to understand the possibilities of plebiscitary democracy without immediately evoking the great Satan of the twentieth century?

Anything resembling plebiscitary leadership today comes frequently if not exclusively from populist authoritarian rulers who gradually or not so gradually undermine or simply eliminate the customary liberal-democratic checks, balances, and individual rights. Because of twentieth-century examples, not least the one with the Charlie Chaplin mustache, we prefer (despite our complaints) governmental paralysis to the promise of effectivity and efficiency. However, the US presidency has given us examples of the type of populist leadership that Schmitt describes.^[34] Despite the pejorative labels we attach to unpopular manifestations of presidential overreach (“imperial presidency,” “executive unbound”), we have been known to succumb to the temptations offered. Conversely, despite the apparent need to trust a leader who claims to know what is best, we have also been known to respond with derision. I would like to offer two examples of attempted presidential plebiscitary leadership. The first is the presidency of Woodrow Wilson, especially his second term. Throughout his academic career, Wilson exercised a critique of the division of powers and weak executive branch while detailing the necessary elements of strong presidential leadership in terms surprisingly similar to Schmitt’s, though admittedly within the structure of a constitution quite different from that of Weimar Germany. The second example comes from Jimmy Carter’s only term as president. Whereas Wilson was successful in receiving the requisite acclamation, Carter was not. Yet, on my reading, each example, the positive and negative, proved to be disastrous—the first by succeeding, the second by failing. Negatively, then, by showing the failure of success and failure of failure, we can say that the jury is still out. Even as this chapter has not been an endorsement of Schmitt’s construction of modern, mass democracy, it has also and quite clearly not been an endorsement of the status quo. Admittedly, helpless despair seems to be the only non-naïve response. We all inhabit that “shifting, labyrinthine hall of mirrors” that Raymond Geuss calls the prison of liberalism,^[35] and helpless passivity (or, for that matter, helpless activity) seems, existentially, to be the only reasonable response. But even a healthy skepticism should not hold us back from attempting to design conceptual escape attempts. Whether our friend in this endeavor or just another one of our jailers, Schmitt may nevertheless come inadvertently to our aid, leaving us scraps of ideas we may be able to make use of. We would be lazy not to take advantage of them.

Woodrow Wilson

The plebiscitary leader, who professes to represent the general will of the people in a more articulate way than the people themselves are able to do, has become a feature of what the American political historian, Jeffrey K. Tulis, has called “the rhetorical presidency” (Tulis 1987, esp. 117–37). Though his assertion sparked a controversy among American presidential historians, Tulis credits Woodrow Wilson with initiating the paradigm, which changed the presidency’s relationship to both Congress and the American public. I submit that readers of Carl Schmitt (or even readers of these pages) will be struck by some familiar themes to be found in Wilson’s writings.

Like Schmitt, Wilson found discussion as conducted in the US House of Representatives a false façade behind which all political decisions are executed in private committees, though he never officially doubted the epistemological value or ideal of discussion for democracy (Wilson 2006, 68–73).^[36] And he believed the separation or “balance” of powers to be both antiquated and debilitating. “The makers of the Constitution,” Wilson wrote just a few years before his presidency,

It is within this context that Wilson also condemned divided sovereignty. “Leadership and control must be lodged somewhere,” he emphasized (54). The “division of authority” and the resultant “concealment of responsibility” lead to “a very distressing paralysis in moments of emergency.” Therefore: “Power and strict accountability for its use are essential constituents of good government,” for “the only fruit of dividing power [is] to make it irresponsible” (Wilson 2006, 186, 187). The interesting question to ask, then, is the following. If power and authority are to remain undivided, not “checked” or “balanced” by countervailing, equally powerful governmental controls, who or what holds the leader accountable? The answer would seem to be “the people,” expressed through some form of “acclamation.” For Wilson too, popular opinion served this function.

In short, in the 1880s Wilson despaired of the presidency as an institution and advocated a revision of American government along the lines of British parliamentarianism, in which a strong leader at the head of a majority party could rule with full transparency and responsibility. By 1900, however, things had changed, and he saw a renewed chance for executive leadership. The catalyst was the war with Spain. In the preface to the fifteenth printing of Congressional Government (dated August 15, 1900), Wilson notes that “the greatly increased power and opportunity for constructive statesmanship given the President, by the plunge into international politics and into the administration of distant dependencies [e.g., the Philippines], which has been that war’s most striking and momentous consequence” raises hopes for an integration of power that will “substitute statesmanship for government by mass meeting.” After all, no one but the president “represents the people as a whole.”^[38] Therefore: “Let him once win the admiration and confidence of the country, and no other single force can withstand him. . . . If he rightly interpret the national thought and boldly insist upon it, he is irresistible . . . [The country’s] instinct is for unified action, and it craves a single leader. . . . A President whom it trusts can not only lead it, but form it to his own views” (Wilson 1908, 68). What Wilson craves is “common understandings, common interests, common impulses, common habits,” “common consciousness,” “common standards of conduct,” and “the habit of concerted action, which will eventually impart to it in many more respects the character of a single community.” What calls forth all these commonalities is representation. Elizabeth created England as a nation, for “a great ruler made great subjects” and she was England’s “embodiment.” Frederick the Great did the same for Prussia—he “called it into consciousness” (32, 33). This is what a leader is, a man or woman who is the “embodiment” of the nation, “who understands his own day and the needs of the country, and who has the personality and the initiative to enforce his views both upon the people and upon Congress” (65). Ultimately, leadership is interpretation, for a leader must impute to the people the opinion that they genuinely hold and then represent that opinion before them. The leader must “arouse” the community from its slumber. “The forces of the public thought may be blind: he must lend them sight; they may blunder: he must set them right” (Wilson 1952, 45).

After having promised the electorate America’s continued neutrality during his 1916 reelection campaign, Wilson declared war against the Central Powers after his inauguration in 1917. At his request, Congress passed the infamous Espionage (1917) and Sedition (1918) acts, which were used to imprison those who remained vocally opposed to the sudden shift to war, triggering governmental surveillance and imprisonment of the most trivial of violations (including speaking a foreign language in public), and the government coordinated or condoned civilian violence and vigilantism during Wilson’s wartime second term.^[39] In response, the American Civil Liberties Union was formed and a general “rights revolution” was inaugurated that has lasted to this day. At the conclusion of his fine study on World War I and the making of modern American citizenship, Christopher Capozzola muses about the relative merits of obligation and rights. “These days,” he writes, “some Americans wish for obligations, hoping to renew among Americans a sense of commitment toward our fellow citizens. Ninety years, they tell us, have put rights, and not obligations, at the center of our political life. Individualism has corroded our common culture and our civic associations; we even bowl alone.” The complaint resonates with us, he admits. “From such a perspective, the sense of voluntarism and obligation in the political culture of early twentieth-century America must astound.” But, he insists, the humiliation, persecution, imprisonment, and murder of German Americans and other immigrants, the intensified terror waged against African Americans, the flare-up of anti-Semitism, the violation of religious conscience, and the violent destruction of the radical labor movement and the Socialist Party tell a different story. “Those who seek something beyond the rights revolution must understand the political culture that existed before rights talk, when obligation still held sway. In a divided and unequal society, civil society could be an arena for negotiating political obligation; it could also be a weapon wielded against the weak” (Capozzola 2008, 213, 214). Capozzola reminds us that the state’s power to control and manipulate civil society, that a popular plebiscitary leader who claims to be in possession of the public’s true opinion and thus marshals public and private propaganda to sell and enforce that imputed truth, can be intolerably brutal, even in democracies seemingly protected by liberal safeguards (rights) built into a constitution. The success of Wilson’s leadership and the excesses (to use that vastly understated term) it led to, indeed, the suppression of liberal freedoms in the name of protecting liberty as such, can most assuredly stand as an indictment of non-liberal democracy.

I have stressed the commonality of themes and language between Wilson and Schmitt not to equate them in the form of a one-to-one relationship. The cultural, historical, and political differences of their environments lend varying shades of meaning to their words, and their political commitments are certainly not identical, though they are perhaps not as antithetical as common opinion might believe. Wilson’s ruminations (and later actions) are meant to be in the service of the form of government outlined by the American Constitution; Schmitt’s, though occasioned by the Weimar Constitution, seem to question more thoroughly the basis of political form in general. Nevertheless, there is enough here to show that Schmitt’s views were not aberrant. The idea of representation as “standing for” rather than merely “acting for” may be more common than modern political philosophers are willing to acknowledge. So, considering the historical judgment concerning Wilson’s presidency during World War I and immediately thereafter (even though relatively unknown and certainly not promulgated to the population in general), if one wants a poster child for what is wrong with Schmitt’s notion of representation and plebiscitary democracy, then that child need not sport the above-mentioned, obligatory mustache.

But in fact, the idea of plebiscitary leadership, as articulated by Schmitt or Wilson, is neither inherently negative nor positive. It is a feature of the political life we currently lead, altered no doubt by technology and history to make it perhaps utterly unrecognizable to either of the former presidents.^[40] Since negative examples of successful plebiscitary leadership, like Wilson’s, spring easily to mind, I leave you with an example of a failed attempt—one that, because of its failure, is an indirect cause of the radically unchecked pursuit of private economic interests that we call freedom today, a form that Schmitt (and, I would venture to say, Wilson too) so thoroughly loathed.

Jimmy Carter

On July 15, 1979, President Jimmy Carter addressed the nation in a televised speech.^[41] In it he responded to a series of crises, environmental and economic, each firmly linked to energy, which is to say, to the use of nonrenewable fossil fuel. He emphasized the country’s increased dependence on oil beyond its capacity to produce it and the connection between consumption, energy use, and environmental hazards, all issues that continue to occupy our political and private concerns today. He claimed that the United States faced “a fundamental threat to American democracy.” That threat was not aimed at “our political and civil liberties,” nor was our “outward strength”—that is, our military might or economic power—challenged. Rather: “The threat is nearly invisible in ordinary ways. It is a crisis of confidence. It is a crisis that strikes at the very heart and soul and spirit of our national will. We can see this crisis in the growing doubt about the meaning of our own lives and in the loss of a unity of purpose for our Nation.” He went on to say that “our people are losing . . . faith . . . in the ability as citizens to serve as the ultimate rulers and shapers of our democracy,” and that “too many of us now tend to worship self-indulgence and consumption.” He concluded: “We must face the truth,” because “we are at a turning point in our history. There are two paths to choose. One is a path . . . that leads to fragmentation and self-interest. Down that road lies a mistaken idea of freedom, the right to grasp for ourselves some advantage over others. That path would be one of constant conflict between narrow interests ending in chaos and immobility.” In contrast, he said, “All the promises of our future point to another path, the path of common purpose. . . . That path leads to true freedom for our Nation and ourselves.”

Carter’s speech is a remarkable document, one that Tulis (1987, 3, 136, 141) alludes to, as does Andrew Bacevich, ruefully pointing to the consequences of Carter’s failure (Bacevich 2008, 31–36). It lays out concrete legislative proposals, including import quotas on oil, tax incentives for fuel efficiency and conservation, investments in alternate sources of energy and public transportation, and the establishment of a new government agency to organize and supervise various aspects of commercial life affected by these proposals, all with specific targets and dates that now, given our present denial and paralysis, boggle the mind (for instance, the goal to have solar power provide 20 percent of energy use by the year 2000!). In remarkably clear terms, ones that no American president would dare use today, Carter clearly drew a distinction between the freedom of private interest and the duty of public, collective action, reminiscent of, if not roughly equivalent to, the distinction Schmitt makes between liberalism and democracy. To today’s ear, his language rings prophetic. What he feared has come to pass: “fragmentation,” “self-interest,” “chaos,” and “immobility.” What he advocated seems completely out of reach and sounds profoundly dissonant, perhaps dangerous to most, vaguely “fascist” or “socialist.”

But his words also sound archaic, harking back to the language spoken much earlier in the century, the language of Schmitt’s notion of democracy as the action of a people who see themselves—no, sees it self—guided by a “common purpose,” as opposed to the freedom of unbridled, individual self-interest. In this speech Carter presented himself as the representative of the American people, attempting, with a sense of urgency, to make the collective political unity visible and present. In Wilson’s terms, he wished to “interpret” or channel the general will so as to make it active for the perceived crisis at hand. As “symbolic” representative of the American people, Carter acted, as it were, as this constituent power’s commissar, not as commissarial dictator, for he hoped to operate strictly within normal constitutional structures, but as one who sought to carry out the will of the whole for the good of the whole in a time of crisis. In the act of representing the people, he called it to self-consciousness as a unity and not as a conglomeration of individual parts. In representing that unity, he was set to act “decisively.” But first, he needed the people to recognize that in fact he was its representative and thus was authorized to exercise his commissarial duties. He therefore delivered the speech orally, by television, in front of the entire nation. Carter then awaited positive acclamation.

He did not receive it. The spectator-citizens, carriers of public opinion, booed and hissed. The speech was dubbed the “malaise” speech, though Carter never used that word. From both the left and the right, from within his party and from the opposition, from the full spectrum of the press, he was mocked, ridiculed, scorned. In the Democratic primaries of 1980, he was challenged by Ted Kennedy. In the general election he was defeated by Ronald Reagan, who had repeatedly assured the conglomeration of American individuals, whom he pitted one against the other—white against black, Christian against non-believer, rich against poor—that the first path Carter had outlined, the path that was lit by the false idea of freedom and that leads to fragmentation and self-interest, would be the path we could all painlessly take.

As Lorenz von Stein might have said had he witnessed the speech and its aftermath, the path we have taken is the path that leads—and perhaps we can now say, has led—to death.

For the best description (to my knowledge) of how this is supposed to work, see O’Neill, Constructions of Reason (1989), 28–50.

On a democratic pedagogical dictatorship, see Schmitt, The Crisis of Parliamentary Democracy (1985a), 28.

See Lowy, Georg Lukács (1979), 37–43.

See, for instance, what Lukács wrote just a month or so later in Tactics and Ethics (2014), 3–11.

The reply to Richard Thoma’s review of the 1923 edition of Crisis appeared in 1926 as an article in the journal Hochland and as the preface to the 1926 second edition of Crisis. See Kennedy’s introduction to Schmitt, The Crisis of Parliamentary Democracy (1985a), xv.

On the two examples, see translator’s footnotes 25 and 26 in Schmitt, The Crisis of Parliamentary Democracy (1985a), 89–90. On the Turkish/Greek “population transfers,” sanctioned and mediated by the League of Nations, see also “Population Exchange between Greece and Turkey,” Wikipedia, en.wikipedia.org/wiki/Population_exchange_between_Greece_and_Turkey. On the history of Australia’s constitution and the 1901 immigration restriction legislation, see “Immigration Restriction Act of 1901,” Wikipedia, https://en.wikipedia.org/wiki/Immigration_Restriction_Act_1901. On the constitutional history of Australian race relations in general, see the Reconciliation Australia website at http://www.recognise.org.au/wp-content/uploads/shared/uploads/assets/html-report/1.html.

For recent accounts of both events, see Douglas, Orderly and Humane (2012) and Hajari, Midnight’s Furies (2015). More examples could be given, but I have already touched too many sensitive nerves. Please understand, I endorse none of these examples but in fact deplore them. I just point out that they do not seem to have damaged the “democratic” reputation of any of those involved.

See the discussion of equality in Schmitt, Constitutional Theory (2008a), 255–64, especially the occasional “menus” of qualities that may serve as criteria for identification (for instance, pp. 258, 262).

The discussion of Smend is based on Verfassung und Verfassungsrecht, in Smend, Staatsrechtliche Abhandlungen und andere Aufsätze (2010), 118–276. His discussion of integration in this work is primarily found on pp. 142–86. See also the short article “Integrationslehre,” written in 1955, on pp. 475–81 in the same volume. The citation, in my rough translation, is taken from p. 145. To be fair, Preuß’s talk was delivered in 1917, when a monarch still ruled Germany. But it does lend Preuß’s support to Schmitt’s views on the importance of the Weimar Reichspräsident.

10.

Smend, Staatsrechtliche Abhandlungen und andere Aufsätze (2010), 149, referring to the once famous, now forgotten study by Karl Bücher, Arbeit und Rhythmus (1896). On Bücher and the German discourse of work, see Campbell, Joy in Work, German Work (1989), especially chapter V, “The Science of Work before the First World War” (73–106).

11.

See also Schmitt, “The Liberal State” (2000a).

12.

Note the anti-voluntarist jab at divine omnipotence. Even God must respect the good as represented by bourgeois rights.

13.

Schmitt was no doubt as homophobic as the next man or woman of his time, but I can imagine that he would have been delighted by the absurdity of the claim to have a pre-political right to restrict the pre-political rights of others.

14.

Oddly, given its importance in Schmitt’s analysis, the preamble is omitted in the copy of the constitution reproduced in Constitutional Theory (Schmitt 2008a), 409–39. Translations available on the internet tend inexplicably to butcher the crucial sentence, sometimes using “adopted” (from whom, one might ask), even “adapted,” though that may just be a typo. Feel free to search “Weimar Constitution” to see what you find.

15.

The much-maligned German term Volk has the virtue of serving as a grammatically singular term (the plural, Völker, means “peoples”), and not, like “people,” also as the plural of a separate singular noun (i.e., “person/people”). As previously stated, my use of verbs following “people” in the third-person singular (e.g., “The German people . . . has”) is thus deliberate.

16.

See, for instance, Mouffe, The Return of the Political (1993), The Democratic Paradox (2000), and On the Political (2005).

17.

See the opening of part II in this volume.

18.

For Schmitt on Sieyès, see Schmitt’s Dictatorship (2014a), 137–41; and Constitutional Theory (2008a), 126–29. I am fully aware that Sieyès cannot be limited to the uses Schmitt makes of him, that there are aspects of his thought that Schmitt neglects. For more complex appraisals, see Sewell, A Rhetoric of Bourgeois Revolution (1994), and Bates, Enlightenment Aberrations (2002), 98–137. See also Kelly, The State of the Political (2003), 205–8, and, for a more acerbic view, Scheuerman, Carl Schmitt: The End of Law, 69–71.

19.

The reference to natural law in this passage echoes a similar reference in Bodin. In neither case is the constituent power (monarch or nation) limited by natural law, though violations may have consequences in the hereafter. See Bodin, On Sovereignty (1992), 31–32.

20.

I have altered the translation for greater clarity; compare with the original German in Schmitt, Verfassungslehre (1993), 76–77.

21.

The preposition vor in German, like the English “before,” can be interpreted both spatially and temporally.

22.

Andreas Kalyvas has alerted us to the importance of distinguishing these three moments of the people as constituent power before and next to the constitution, and as constituted power within it. See Kalyvas, Democracy and the Politics of the Extraordinary (2008), 79–186, and “Carl Schmitt and the Three Moments of Democracy” (2000). The English translation obscures this spatial imagery by translating neben as “in comparison with” in the most important passage (Schmitt 2008a, 271), though elsewhere (125, 140) it comes closer by using the word “alongside.”

23.

This, I assume, would be the reading favored by Giorgio Agamben. See Agamben, State of Exception (2005), which also contains the largely fictional claim that there was a hidden conversation between the angelic Benjamin and demonic Schmitt during the 1920s. On this, see Mehring, Kriegstechniker des Begriffs (2014b), 137–52.

24.

The duties of the Reichstag are spelled out in Articles 20–40 of the constitution; the duties of the president, in Articles 41–59. See Schmitt, Constitutional Theory (2008a), 413–18. A third branch of the government, the Reichsrat, representing the interests of the individual provinces, will not concern us.

25.

Article 48 gives the Reichspräsident extraordinary powers during a national emergency. See Schmitt, Constitutional Theory (2008a), 417. See also the appendix to Schmitt, Dictatorship (2014a), 180–226, which reproduces Schmitt’s (in)famous endorsement of the president’s emergency powers.

26.

The discussion that follows is based on Schmitt, Volksentscheid und Volksbegehren (2014b), originally published in 1927. Translations are my own. The Germany of today has elided the word Volk from such constructions, preferring the word Bürger (citizen), as in Bürgerinitiative.

27.

Schmitt was influenced by Erik Peterson’s Heis Theos (2012; originally published in 1926), a study of the function of the “One-God” acclamation in antiquity. For a recent study that offers mild critique of Peterson and is centered on the use of the phrase (variably heis theos or eis ho theos) in Paul’s letters as one that includes Jews and Gentiles under the one God, see Bruno, “God Is One” (2013). For a nontheological example of acclamation, see Tacitus’s description of a Germanic practice in The Agricola and the Germania (1970): “When the assembled crowd thinks fit, they take their seats fully armed. Silence is then commanded by the priests. . . . Then such hearing is given to the king or state-chief as his age, rank, military distinction, or eloquence can secure—more because his advice carries weight than because he has the power to command. If a proposal displeases them, the people shout their dissent; if they approve, they clash their spears” (111).

28.

Pitkin too labels the representation of people who have interests “liberal.” See Pitkin, The Concept of Representation (1967), 190–208.

29.

See further examples of mimetic analogies on p. 61 in Pitkin.

30.

The British textbook from which Pitkin cites is Hiram Miller Stout’s British Government (1953). The second quotation is from our old friend Rudolf Smend. See Pitkin, The Concept of Representation (1967), 269n2–3, for details.

31.

The example is given by both Schmitt, Roman Catholicism and Political Form (1996d), 19, and Pitkin, The Concept of Representation (1967), 105.

32.

Compare with Hobbes’s Leviathan (1996): “A Multitude of men, are made One person, when they are by one man, or one Person, Represented; so that it be done with the consent of every one of that Multitude in particular. For it is the Unity of the Representer, not the Unity of the Represented, that maketh the Person One” (114).

33.

See also Nadia Urbinati’s fleeting references to Schmitt in Representative Democracy (2006, 22, 235n25), also associating him with fascism.

34.

Fear not, I will choose my examples from the relatively remote past.

35.

Geuss, History and Illusion in Politics (2001), 69. See the introduction for the complete passage from which this phrase has been plucked.

36.

See Schmitt, The Crisis of Parliamentary Democracy (1985a), 3–8, 48–50.

37.

See Schmitt, The Crisis of Parliamentary Democracy (1985a), 39–41; and Constitutional Theory (2008a), 220–24.

38.

See Schmitt, Constitutional Theory (2008a), 369–72.

39.

Though the more poisonous Sedition Act was eventually repealed, the Espionage Act remains in force and was apparently used by former president Barack Obama more than all previous presidents combined. Classic studies of Wilson-era oppression include Murphy, World War I and the Origin of Civil Liberties in the United States (1979); Peterson and Fite, Opponents of War, 1917–1918 (1957). More recent work includes Capozzola, Uncle Sam Wants You (2008); McCoy, “President Wilson’s Surveillance State” (2009), 293–346; and Thomas, Unsafe for Democracy (2008).

40.

See Posner and Vermeule, The Executive Unbound (2010), who argue the inevitability of strong, unchecked executive power in the modern administrative world.

41.

Video clip available at https://www.youtube.com/watch?v=kakFDUeoJKM; text available at the American Presidency Project, “Address to the Nation on Energy and National Goals: ‘The Malaise Speech,’” https://www.presidency.ucsb.edu/documents/address-the-nation-energy-and-national-goals-the-malaise-speech. Accessed June 28, 2019.

Ethical State, Total State

In 1930, Schmitt published the essay “State Ethics and the Pluralist State” in a journal devoted to the study of Kant. In it he rehearses the lament that the idea of the state has lost its appeal, replaced by a variety of pluralist alternatives in which the associations of society command the loyalty that once attached itself to the state. Evoking Hobbes, he asks, “When ‘God on earth’ falls from his throne and the empire of objective reason and morality becomes a magnum latrocinium [large band of robbers], the parties slaughter the mighty Leviathan and each cuts its bit of flesh from the body. What does ‘state ethics’ mean then?” (Schmitt 2000b, 301). Objective reason is not the reason of objectivity. It is the “concrete” reason embodied in institutions. If once the Roman Church housed objective reason, it took up new residence in the state at the end of the European religious civil wars. Thus, it is not just Hegel’s but also Kant’s state that is threatened in the twentieth century. The orgy of slaughter engaged in by the parties and associations of society “does not affect merely the state ethics of Hegel (which makes the state the bearer and creator of an ethic of its own) . . . it is also a blow to the state ethics of Kant and liberal individualism.” This comes as a bit of a surprise, but is justified as follows:

“Normative and thus judgeless.” Norms—even rational norms—need instantiation, require decision. Just as the church’s Magisterium (pope and bishops) was the guardian of revelation, which served as the infallible guide to keep reason on its true path, so too the Kantian state must have its arbiters of rational disputes, those who tell us what reason actually says: its philosophers, according to Kant (1992); its better sort of journalists, as Lippmann (2010) affirmed; or its supervisors of the “official” public sphere, as Habermas (2004) already informed us.

The assault on the state, both Hegelian and Kantian, is of course simultaneously an assault on political unity. Schmitt briefly categorizes the means of achieving unity, again identifying the moment of dissolution. One can establish “unity from above (through command and power) and unity from below (out of substantial homogeneity of a nation)”; unity through agreements or the balancing of interests (a form in which I doubt Schmitt had much faith); unity from within and from the threat coming from without (the friend/enemy distinction); and “finally, unity by power and unity by consensus.” It is this last alternative that elicits a few lines of explanation. The idea of consensus, he says, predominates among the advocates of pluralism, “the ethical meaning of which is apparently to ethically accept only unity through consensus.” Schmitt has no objection to that proposal. “Rightly so.” But he does point to some problems, albeit problems that may well attach to all modes of forming the political. Every consensus, he states,

In other words, the question is: Who owns the means of the production of consensus and thus of power? Explicitly: Who owns the means of the manufacture and proliferation of public knowledge through the media (“psycho-technical means”)? If not the state, the state is dead, a mere instrument in the hands of social forces.^[1]

By the late 1920s and early 1930s, the social force that seemingly concerned Schmitt the most was the economy. We get an inkling of his concerns in Constitutional Theory, when he uses the economy (not, say, war or insurrection) to illustrate the necessity of suspending private law in the name of the public good. First, he articulates that democratic equality does not entail socialist, economic equality. “According to democratic principles, equality in private law is dominant only in the sense that the same private law statutes are valid for everyone, not, on the contrary, in the sense of economic equality of private wealth, property, or income. In its consequences and applications, democracy as an essentially political concept involves, to begin with, only the public law.” Here the separation of the public (political) and the private (social) is affirmed; and indeed, in the realm ruled by private law, Bobbio’s formal notion of equality seemingly triumphs. The “free play” of society is granted, material inequality accepted as an inevitable outcome of the pursuit of interests. Yet, because public law is political law, law in the service of the political unity and not the self-aggrandizing individual, public law may trump private law when the greater good is damaged by egregious inequalities in wealth that threaten to disrupt civic peace.

Here Schmitt places democracy between two conflicting social extremes—liberal individualism and socialism. Neither the pre-political right to private property nor radical economic egalitarianism is endorsed. Rather, civic peace and a perceived good of the whole are held above both, and corrections to dangerous social conditions are to be effected either by parliament (“statute”) or the Reichspräsident (“measure”). If the chief liberal, parliamentary struggle of the nineteenth century was to integrate the bourgeoisie into the power structure of the state, then one of the aims of modern, mass democracy is to integrate the proletariat.^[2] In this battle between liberalism and socialism, the democratic state remains neutral, intervening only in the case of emergency. Of course, this putative neutrality would be contested by both sides, but it is a sense of neutrality that both harkens back to Stein and is directly addressed by Schmitt in his deliberations on the “total state.” And it is a neutrality that Schmitt will discard after he casts his lot with National Socialism in 1933. We close our inquiry into the duality of state and society with an examination of two texts, Der Hüter der Verfassung (The Guardian of the Constitution) of 1931^[3] and Staat, Bewegung, Volk (State, Movement, People) of 1933. In the former, Schmitt struggles with adapting Stein’s nineteenth-century solution to the state/society problem for the new, twentieth-century reality, and in the latter he enthusiastically embraces a synthesizing solution that is not a Hegelian sublation but is made to be a functional equivalent. Neither is successful, but the issues he deals with still point to some of the problems of our present moment, as Schmitt seemed to recognize after his unbridled infatuation with National Socialism waned in the late 1930s and early 1940s.

Total State

On Schmitt’s reading, the history of the modern European state could be narrated in three phases. The so-called absolutist state, theoretically defined by Bodin’s concept of sovereignty in the second half of the sixteenth century, first developed in France as a strong bureaucratic state that tamed and largely privatized the power of the aristocracy.

This passage from The Guardian of the Constitution reads not only like a description of the absolutist state, but on Schmitt’s account, like the purpose of the state, any state, in general. It is the Hobbesian state, the “mechanism” by which humans extricate themselves from the state of nature and give themselves order, or, as Schmitt puts it, give themselves a normal situation from which norms may be produced. The characterization of the medieval “pluralistic” “rule-of-law state” (Rechtsstaat) sounds suspiciously like his characterization of the Weimar Republic, a polemical provocation highlighted by his use of the term Rechtsstaat (rule-of-law state), though that term is usually reserved for the liberal constitutional state and not medieval feudalism. What Schmitt achieves with this seemingly anachronistic description is the view that absolutism supplanted chaos by establishing the conditions for political order. I will return to the question of premodern political order later, but for now I will trace ever so briefly the lineaments of the early modern state.

Both Otto Hintze in 1919 and Schmitt in his 1921 Dictatorship charted how commissaries, agents delegated to represent a monarch’s financial and legal interests, eventually ousted regional authorities and established themselves as centralized state bureaucracies, uniting administrative control over an entire domain.^[4] In line with the usage of antiquity, “civil society” still referred strictly to the realm of the political. Subjects—even, increasingly, the aristocracy—were thought of as private persons, not as individuals demanding representation and rights. Treading the path explored by Max Weber’s The Protestant Ethic and the Spirit of Capitalism, Hintze and subsequent historians emphasized the role discipline played in training individuals to be subjects of the newly formed state. While Oestreich (1982) emphasized the influence of Justus Lipsius and Neostoicism, Hintze (1975, 88–154) and Gorski (2003) have more closely followed Weber in their emphasis on Calvinism. All, however, see the Netherlands as central, with Brandenburg-Prussia the main beneficiary. An internally disciplined (by religion and education) populace allowed for an increasingly rationalized (avant la lettre) form of governance and waging war. This new political entity that emerged in the late sixteenth and seventeenth centuries is generally referred to as the military and administrative state, sometimes positively, more often as a condemnation. Schmitt habitually used the phrase “military and administrative” to characterize the Prussian and German state of the nineteenth century, and one certainly gets the impression that this was his favored form of governance, yet even the nineteenth-century Prussian state, often thought to have been “atavistic,” was fundamentally different from its absolutist predecessor, for the French Revolution and its aftermath introduced the passion of nationalism, the ideology of liberal governance, and the reality of social movements, thereby irrevocably changing the political landscape.

With reference to the nineteenth century we enter the second stage of modern political development, which has been the focus of part II of this volume. In its most extreme articulations, it has been described as the liberation of the individual from the shackles of tyranny or, as Schmitt has it, the political “attack” of society on the state in the name of an apolitical economic idyll. Howsoever one wishes to view it, the state/society distinction represents the quintessentially liberal view of the political, a limitation of state power and maximization of individual liberty. The state becomes neutral, especially with regard to religion and the economy. This neutrality has a twofold function. In addition to giving the self-interested individual a theater of activity virtually untouched by state interference, it also preserves the identity and, at least to a certain extent, the strength of the state as a power that stands guard over the political community. Thus, in addition to emancipating the individual, the emergence of society throws the state in stark relief, especially in the constitutional monarchies of the nineteenth century. Monarchical leadership and the administrative power of even the increasingly liberal, constitutional state was thought (or hoped, or, of course, feared) to be able to hold its own against rising social pressures. As we have seen, the duties of state and society were clearly defined and differentiated: the former represented the whole, the latter advocated for the individual. The former refrained from intervening in the affairs of the latter, unless and until nonintervention became, in effect, intervention on the side of the socially tyrannical and economically powerful owning and producing classes. Threatening both individualistic society and the state were the organized masses, primarily the proletariat, but also the stateless nations eager to free themselves from empires (Austro-Hungarian, Russian, Ottoman, and British).

World War I changed everything. That nearly the entire nation was mobilized for the war effort proved irreversible. What had been the liberal state with its clear differentiation from society now became the welfare state, consumed by social (primarily economic) tasks. The state that organized total war in peacetime became, in Schmitt’s terms, the total state,^[5] a misleading label that actually means the total mobilization, a term he borrows from Ernst Jünger,^[6] or total self-organization of society (a term Schmitt favors and one that today is unabashedly and descriptively used by Luhmannian systems theorists). Let us let Schmitt explain what happened.

Society no longer merely intrudes—it consumes the state, regurgitating it as just one social association among many, with a coordinating or managerial function. Furthermore, in the totally mobilized state, the association or party replaces the individual as the subject of society. In the pluralism advocated by Laski, Cole, Guild Socialism, and those others in England influenced directly and indirectly by Gierke, the individual comes to be defined by participation in a variety of associations—churches, unions, chambers of commerce, professional societies, philanthropic organizations, schools
(parent-teacher associations, volunteers), sports clubs, and fan groups, and in the present century a host of social media networks. No longer self-determining as the liberal ideal would have it, individuals are determined in conflicting and contradictory ways by the associations they make, or rather, by the associations that make them. With the disappearance of the state, a counter pole to social identities also vanishes, and the individual can no longer secure its relationship to an overarching group, a collectivity or community, that may provide a singular collective identity over against the fragmentation one faces in social life. This at any rate could be one function of a state that still maintains the theorized independence from social forces.

Is there a remedy for the malady Schmitt posits? In The Guardian of the Constitution, published before the National Socialist takeover, Schmitt offers a classic nineteenth-century solution, namely the re-establishment of the state/society distinction that equips the state with its appropriate weapons: a neutral power and an active, nonpartisan bureaucracy.

First, let us consider the neutral power. “Difference of opinion and conflicts between those who exercise rights of political decision and of influence cannot in general be decided in judicial form,” Schmitt claims. Indeed, the purpose of Guardian is to argue against the notion of judicial review (as we have with the Supreme Court in the United States) as the proper and most—well—judicious guard against violations of the constitution by the other branches of federal or provincial government. Rather, Schmitt asserts, such fundamental conflicts “are either resolved, from above, by a stronger political force, that is by a higher third that stands above the differing opinions . . . or they are arbitrated or settled by an authority that is not superior to but that stands alongside the conflicting parties” (Vinx 2015, 150–51). The higher third is the sovereign, but in a democracy, the presence of the sovereign—the people as constituent power—is hard to locate in a specific and concrete manner. We have already explored the referendum, in which “acts of sovereignty” are executed by the constituted people within the constitution, and we have heard, if not the voice of the people itself, then at least the possibility of that voice raised in acclamation. Although only the sovereign may truly protect (or legitimately destroy) the constitution, acclamation comes not in response to an emergency but to a decision. Thus, the second option, an authority that stands “alongside,” on the same level with the conflicting powers, may be called into action. That authority Schmitt calls “a neutral third,” a “pouvoir neutre et intermédiaire” (151).

Schmitt’s use of French is not a mere flourish, for he points explicitly to Constant, whom he praises for “a political intuition that clearly grasps the position of the monarch or of the president in a constitutional state” (Schmitt 2015, 153). In the Weimar Constitution, that intuition is articulated as a recognition of the “independence of the plebiscitary system” centered on the figure of the popularly elected Reichspräsident (169). As head of state the president is equipped with a “special form of authority” that allows him to represent “the continuity and permanence of the unity of the state.” Thus, beyond his normal competences, the president can act as a neutral third, but “only in a state of emergency.” As a neutral power, the role assigned to the president is one of “arbitration, preservation, and regulation” (Vinx 2015, 156). It is of interest to observe how Schmitt tiptoes through the snarls, contradictions, and confusions of the Weimar Constitution to elicit both the plebiscitary and neutral function of the president. The “position of the president,” Schmitt writes, “can be constructed only with the help of a further development of the doctrine of a neutral, arbitrating, regulating, and preserving power” (translation slightly altered). The specific competences granted to the president, who, as Schmitt repeatedly emphasizes, is popularly elected, “conform to the typical catalogue of competences of a head of state as it was already put forward by B. Constant” (157). Whereas in parliamentary elections the electorate votes for parties and not individuals, the president is the only figure popularly elected by all as an individual. (You will recall Wilson’s similar argument with regard to the US president, though it must be said that the Electoral College system undercuts the principle of democratic, majority rule.) Therefore:

To dot all the i’s and cross the t’s, Schmitt calls on the main architect of the Weimar Constitution to support his thesis. “Hugo Preuß pointed out . . . that it is ‘only one of the functions of the president of the Reich to form a counterweight to the Reichstag.’ ‘Aside from that, there is the more important one: to form a kind of centre in the constitution, a pole that is at rest’” (157–58).^[7] As the center of the constitution, the president is given exceptional powers to stand alongside the other powers and intervene to “guard” the constitution in times of emergency.

As overarching authority, the president may be the solitary center, the plebiscitary pole, but to exercise his power he needs his executors; and here the second agency mentioned by Stein comes to the fore—the bureaucracy. In the early 1930s, Schmitt returns repeatedly to a discussion of the professional, nonpartisan bureaucracy and its relationship to the development of the total state.^[8] Because the “traditional, static opposition of state, i.e. of a monarchy administrated by a professional public service, on the one hand and of society, i.e. of a ‘free’ sphere of life that is in principle distinct from the state, on the other is dissolving,” Schmitt declares, the “public service no longer stands above a ‘society’ that is separated from it” (Vinx 2015, 161). This of course is his now much-repeated lament. In a total, self-organizing society, the state cannot without further ado stand over against economic and other social forces as an imposing, independent force. Through the party politics that dominate parliamentary decision making (or lack of decision making), social differences eviscerate the collective identity of the political whole. Nevertheless, in spite of the debilitating situation in which we find ourselves, Schmitt assures us that the professional bureaucracy is still “preserved as an impartial power,” and he finds support for this claim in the Weimar Constitution. Article 129 states that civil servants are appointed for life and can be removed from their duties only by way of legal proceedings, and Article 130 states emphatically, “Public officials are servants of the collective, not of a party” (Schmitt 2008a, 429–30). He reads in these explicit assurances the intention “to continue the great tradition of the German professional public service in the democratic state” (Vinx 2015, 161). A true democracy, in other words, does not allow the state bureaucracy to become the spoils of party-political battles and thus the mere plaything of social forces. However, within the now non-monarchical, democratic political order, the constitution must find a new home for this venerable institution. Schmitt therefore attaches great significance in the linkage of Article 46, which states that the president “names and dismisses civil servants” (Schmitt 2008a, 417), and Article 130, which places explicit emphasis on the bureaucracy’s service to the “collective,” the whole community, and not to party interests. On the one hand, it is “at least a remarkable restraint against party-political methods of appointment that it is not the party-comrade turned minister himself, but rather a head of state independent of parliament, and therefore of any political party, who appoints public servants.” More importantly, however, Schmitt lauds the “systematic connection between a state based on a professional public service and a president of the Reich who stands on a plebiscitary basis, and who controls the plebiscitary element of the constitution of the Reich” (Vinx 2015, 162). By linking an “independent” president with an equally “independent” professional bureaucracy (my scare quotes register, without explicitly endorsing, a necessary level of inquisitive skepticism), Schmitt hopes to establish a realm of presumed detachment from the daily round of party politics and sees this as the “only way to create an independent authority in a democratic constitution, without which there can be no guardian of the constitution” (162). Whether such an arrangement would be more successful than judicial review along the lines of an American-style supreme court remains an open question. Equally open is whether judicial review itself can seal itself off from the forces and pressures of party politics. Indeed, the American experience suggests otherwise. Court victories are always also political victories.

All these problems and postulated solutions came to an abrupt end on January 30, 1933. New, more terrifying and vicious problems arose, although Schmitt, after a brief hesitation, embraced the New Order with the hope that old problems had now been actually solved.

State, Movement, People

In 1933, after the National Socialist takeover, Schmitt published a short book called Staat, Bewegung, Volk: Die Dreigliederung der politischen Einheit (State, Movement, People: The Triadic Structure of the Political Unity), which aspired to be a provisional constitutional theory of the newly erected National Socialist state.^[9] The third chapter of the text—“The dualistic construction of the state of liberal democracy and the German administrative state”—provides us again an example of Schmitt’s engagement with the nineteenth-century state/society dualism and its Weimar afterglow. It is worth reviewing the arguments, starting with Hegel.

Nineteenth-century German political theory (Staatstheorie, or theory of the state), Schmitt claims, resisted the dualistic division of state and society until the mid-century victory of liberalism and positivism. That Hegel originated the distinction, Schmitt neglects to mention, though he credits Hegel with positing a non-liberal solution. “For Hegel (Theory of Right §250f.), for example, the ‘corporations’ fashion the transition of bourgeois society to the state; for him, the state is in no way a bureaucratic apparatus, on the one hand, and, on the other, a free bourgeois society” (Schmitt 1933, 28). Recall that Hegel assumed that the professional corporations (modeled still on medieval guilds and not on political parties, interest groups, or capitalist corporations in the modern sense) would mediate between the ethical community of the family and the ethical community of the state by making individuals aware that the success of their pursuit of self-interest was facilitated by everyone else’s pursuit of self-interest. Hegel’s synthesis was in effect to achieve a higher, collective awareness of mutual citizenship in an ethical state by assuming that the pursuit of private vices eventually leads to public virtue; therefore, out of the coalescence of self-interest and duty, one’s higher allegiance is to the public good, namely the entire political community, the state. It is realized, in other words, that the devotion to self-interest (protected by rights) and to the higher good (demanding obligation) cohere. One may be both a privately acquisitive individual and a good citizen, for what was once seen as conflict has now been raised to collaboration.

With the collapse (or irreality) of the Hegelian synthesis, the stark divide remains unhealed and is encapsulated in the liberal ideal of a weak, limited state and a strong sense of individual liberty housed in the social sphere. Schmitt disputes the ideal by emphasizing the limits put on individual freedom not by the state but by economic associations and interest groups who orchestrate putative liberty. “The liberal construction of state and constitution presupposes a simple and unmediated opposition between the state and the private individual. Only by way of this opposition is the effort to build a complete legal shelter [ein ganzes Gebäude von Rechtsschutzmitteln und -einrichtungen] a reasonable undertaking, aimed at protecting the helpless, exposed, poor, isolated individual person against the mighty Leviathan ‘state’” (Schmitt 1933, 24). But he quickly adds that this liberal narrative no longer makes sense because “strong collective associations or organizations occupy the extra-state, non-political private sphere and these non-state (but by no means unpolitical) ‘self-organizations’ group individuals together ever more forcefully.” These organizations, then, posing “as the people, as society, as the free bourgeoisie, as the productive proletariat, as public opinion,” oppose the state by hiding behind the protective wall of rights (Schutzwall) originally meant for individuals alone. Behind this Schutzwall of individual rights, “non-state but, as said, thoroughly political associations dominate both the state will (by way of legislation) and the individual (through social and ‘purely individual’ coercion).” Such organizations, then, become the agents of state power without, however, taking political responsibility for their actions. They can be political parties, unions, economic and industrial organizations, churches and religious societies, secret societies of whatever kind, and by virtue of their social strength they exercise political power and reap commercial benefits (24–25).^[10] It is easy, all too easy, to assume that Schmitt’s exclusive target here is the Jews, and they are mentioned (Volksfremde: aliens, not part of the people) in passing, as are the communists (Staatsfeinde: enemies of the state), but clearly the net is cast far and wide, as it always had been in his Weimar-era writings.

Schmitt even repeats his observations about the incoherence of the Weimar Constitution, constructed in two parts: the first along liberal lines, including inviolable basic individual rights, and the second, the so-called economic constitution, based on social-democratic economic principles.^[11] The provisional economic council called for in Article 165 of the constitution failed to have any impact on German society during the 1920s and beyond; indeed, according to Schmitt, it had to fail because in its essence it contradicted the liberal part of the constitution. No ill will was necessary to render its work null and void. The barricade of rights manipulated by industrial organizations thoroughly protected their economic interests (Schmitt 1933, 27). Under these circumstances, even the famed German Beamtenstaat (administrative state) was no longer able to fulfill its two functions, first as an objective and neutral bureaucracy, and second as the center of political authority (“die [Funktion] einer politisch führenden, staatstragenden Schicht”). The administrative state in general and the bureaucracy in particular could no longer maintain its position outside of and over society, but rather found itself caught between the various levels and organizations of society, becoming thereby part of the pluralistic system itself, an association among other associations (30–31).

This entire analysis then ends with a dramatic declaration: “This past January 30th, the nineteenth-century Hegelian administrative state, characterized by the unity of the bureaucracy and the state’s center of gravity [staatstragende Schicht], was replaced by another state construction. On this day, therefore, one can say that ‘Hegel died’” (Schmitt 1933, 31–32). The “Hegelian administrative state,” characterized by the “unity of the bureaucracy and the state’s center of gravity” (we will return to that phrase shortly), is the state we have been talking about, the state waging battle against the overreach of society. If “Hegel” died, is this cause for celebration? If so, what are we celebrating—the death or a new birth? The passage continues.

In 1933, that new birth came, of course, in the swaddling clothes of National Socialism. Schmitt claims, in other words, that Nazi Germany succeeded where Hegel’s Prussia had failed, such that Schmitt’s own intricately argued attempts to rescue the state from demolition during the Weimar era also became obsolete.

Briefly, because implausibly, the new solution entailed what Schmitt calls the tripartite structure of the new German state, as indicated by the title of the book: state, movement, and people. This is supposed to overcome the existing dualism, because each term of the triumvirate is to be thought through the lens of the other two: state through movement and people; movement through state and people; people through state and movement. What this means or might look like remains largely (and that qualifier is generous) unexplained. Indeed, try as he might, Schmitt could not help but place the state in an elevated position. In the above passage about the death of the state, I clumsily translated staatstragende Schicht as “state’s center of gravity.” Literally, staatstragend means “state carrying,” and Schicht can mean “stratum.” Schmitt is talking about where the weight of power lies in a given state form. In an absolutist state, it lies with the institution of the inherited monarchy; in a theocracy, with the relevant religious institution; in a liberal state, with the social forces whose interests are represented (Schmitt would say: advocated for) in debate—in other words, with the legislative body, parliament. Where does one find the “state carrying stratum” in the National Socialist state? One might suspect the people. After all, the Nazis used the adjectival form völkisch to denote the ethnically/racially defined German people, and Schmitt had made much of the people as constituent power in his reading of the Weimar Constitution. Schmitt does give the people a means of participation. For instance, he claims that the Reichstag election of March 5, 1933, was “in reality, looked at from a legal-theoretical perspective, a Volksabstimmung, a plebiscite, through which the German people acknowledged Adolf Hitler, the leader of the National Socialist movement, to be the political leader of the German people” (Schmitt 1933, 7), and elsewhere he accords a plebiscitary function to the people. But in fact Schmitt gives the people an explicitly passive and non-political role in this new state (12). Rather, the post–January 30 staatstragende Schicht is to be found in the movement, not the people, and the center of power of the movement and therefore the state lies with the leadership principle, bound not by law or constitutional constraints, but by one thing only—the Artgleichheit, or, to use the terminology he used a decade earlier, the homogeneity of the people. Recalling Schmitt’s discussion of homogeneity, we can say that the previous menu of possible options—history, culture, religion, virtue—had been replaced by one single choice, racial [Rasse] commonality. Without this principle of racial homogeneity, he goes on to claim, the National Socialist state would be immediately vulnerable, exposed to the customary withering critique of its liberal and Marxist enemies, and it would thereby cease to exist. Thus, all former metaphors for leadership—navigator, shepherd, horse and rider—fail to do justice to this new leadership principle, namely the “real presence” and absolute identity of leader and followers—a true metaphysics of presence (41–42). Whether this new definition of homogeneity represents an abdication from his former, more complex and varied menu of options open for determining commonality, or rather the final admission of what he meant by that term all along, will no doubt remain a matter for endless debate in Schmitt scholarship.

Nonetheless, none of this is particularly surprising. If he is to give an account of the National Socialist “constitution,” he must deal with the one-party state, the power or driving force of a movement, the racialized notion of the people, their relative political impotence, the radical limitation of the rule of law, and the leadership principle. In many ways one can see how he welcomed some if not all of these changes with relief. One-party rule was, for him, a respite from the disintegrative forces of party pluralism. Though rarely using race or ethnicity on his homogeneity menu, he embraced it in 1933, giving public vent to his vehement anti-Semitism. The erasure of the people as constituent power is surprising, but limiting the rule of law in order to elevate the leadership principle can with little difficulty be squared with his theorization of representation and acclamation. We are faced, then, with the heated dispute over which Schmitt, the pre- or post-1933 one, is the “real” Schmitt. Some believe that he dropped his disingenuous camouflage in 1933 and became the true Carl Schmitt, the Schmitt he always had been or had wanted to be; others claim opportunism, ambition, self-delusion. I claim not to care what or who the “real” Carl Schmitt was. The texts that sport the brand name “Carl Schmitt” are what interest me. I see no reason to interpret the body of literature written between circa 1919 and the end of 1932 strictly through the lens of the texts written during the period between 1933 and circa 1936. There are distinct continuities as well as ruptures between the two collections of texts. Despite the continuities, I believe it possible to read the Weimar-era writings as representing a discrete body of thought written within a broad (modernity) and narrow (Weimar Constitution) context. That he is critical yet still in service of both the broadly understood modern predicament (“deism”) and the narrow confines of the newly constituted German republic of the 1920s and early 1930s seems clear to me. Equally true, though, is that he wished the horizon of thought to be broader, or at least different.

Though the Weimar Constitution is no longer in force and the modern condition has become ever more complex and indecipherable, Schmitt’s texts from that era, I maintain, still speak to us, and they do so in an expansive way, as I have tried to show by placing them within both a medieval (theological) and nineteenth-century setting. I have done this in the (all but vain) attempt to escape aspects of contemporary political-theoretical discourse I find too constricting. At the risk of being misunderstood, I will say that there is something refreshing about a time (the early 1920s) when it seemed that more than one political-organizational option made claims to represent the future of Europe and perhaps the world: liberal-democracy, syndicalist fascism, Marxian socialism. That by the 1930s, the latter two options had spawned nightmare regimes that willfully, even gleefully, set on a path to destroy tens of millions of lives quite reasonably removed them from most observers’ lists. Despite the ideological and theoretical allure of Marxism, in the post-1989 world we were once again left with one option—liberal democracy—and one option is not an option. It is more akin to a judicial sentence, hence the contemporary, twenty-first-century “populist” and authoritarian seemingly worldwide rebellion against liberal so-called elites. As an explicit non-believing but implicit fellow-travelling member of the educated liberal elite, I am not at all happy with the contemporary eruption of contempt for the authority of thought, debate, argumentation, and all the other conventions of our trade, but I am also not surprised that not all share these “elitist” values. Chips on shoulders are powerfully motivating devices; at least that is what my own chip tells me.

Be all that as it may, if Carl Schmitt enthusiastically embraced National Socialism in 1933, National Socialism with equal enthusiasm dis-embraced Carl Schmitt in 1936.^[12] Protected from the more rabid persecutors in the party by a friendlier wing (in part through the intercession of his friend Johannes Popitz, who later joined a resistance group and was executed by the Nazis), Schmitt was stripped of his various governmental positions but was allowed to keep his professorship in Berlin and the right to publish. He learned to eschew (or camouflage) direct interventions in the domestic issues of the day and directed his attention again to the history of the European state and, increasingly, to international law and world order.^[13] I do not mean to suggest that Schmitt turned his back on contemporary Germany or the Nazis. It is telling that Popitz joined the resistance, yet said nothing of this to Schmitt, his close friend, and there is no evidence that Schmitt knew about or sympathized with the attempts to overthrow Hitler.^[14] Still, there is one document that is too readily overlooked, one that gives testimony to the fact that, despite his obituary notice, Schmitt did not think Hegel had died in 1933 after all, or at least that Lorenz von Stein was still alive and kicking.

Stein Redux

In 1940, Schmitt arranged to have published in book form an almost totally forgotten essay by Stein, to which he added an appreciative afterword.^[15] The essay originally appeared in near anonymity (signed only by the letter “S”) four years after the failed 1848 revolution; the topic was whether Prussia was capable of hosting a genuine constitutional monarchy. The answer: not until Prussia was part of a united Germany. Stein wrote this from Vienna, where he was in the employ of the Habsburg monarchy and would remain until his death in 1890. A call to serve Prussia never came, which Schmitt notes with regret. Stein, Schmitt says, was the product of the intellectual awakening of the German bourgeoisie (Bürgertum, which has more than economic associations) and an heir of the creative explosion of German philosophy, who, with an eye on the political and social reality of the day, advanced Hegelian thinking. He was the first to recognize the “inner law” of the European social movements and thus was not surprised by the events all over Europe of 1848 (Schmitt 1995, 156). With great admiration, Schmitt cites the closing lines of the introduction to volume 1 of Stein’s Geschichte der sozialen Bewegung in Frankreich von 1789 bis auf unsere Tage (1921; originally published in 1850), to the effect that history has entrusted (mid-nineteenth-century) youth with the power and quickening of the times. It is the hour of history that will not be lost (Schmitt 1995, 156–57).

Schmitt uses the opportunity of this afterword to engage, however briefly, with his own nineteenth-century obsessions, mentioning as Stein’s contemporaries Bismarck, Wagner, Proudhon, Bakunin, Engels, Max Stirner, and Bruno Bauer.^[16] Bauer was an especial obsession of his, and he gives him a certain pride of place, but after a page of characterizing this important generation, all born and died within the confines of the century, he returns to Stein, noting that his eccentric position in the predominantly agricultural and multinational Habsburg empire resulted in a reduced impact of his thought on Europe as a whole and Germany in particular. Nevertheless, because his thinking was “concrete,” which I take to mean irrevocably linked to the actual situation of the times he lived through (which could also be a self-portrait of Schmitt), the failure of the 1848 revolution hit him primarily as the theorist of state and society (Schmitt 1995, 158). The dynamic of the distinction, a dynamic that Hegel modulated into a satisfactory resolution, freezes in the post-1848 liberal confrontation with the state. The mobility Hegel described dialectically became, in idea and deed, the stalemate of trench warfare. Schmitt goes on to muse that it would be foolish to speculate what would have happened had Stein been able to exert his influence and press his ideas in Berlin rather than Vienna. Yet, he does speculate. Like all of his generation (excluding, again, Marx and company), Stein, Schmitt asserts, would have agreed with Bismarck’s compromise with the National Liberals in 1866; it simply was part and parcel of the times. However, Stein’s example—no, his fate—makes visible what historical meaning attaches to the fact that it was Prussia and not the Habsburg monarchy that executed German unity.

Had Stein been able to serve the Prussian state rather than the backward-looking Habsburgs, so this narrative seems to suggest, Prussian Germany might have been able to establish the better, sleeker, more politically mature model of the modern state as a force representing the political community. Instead, the forces coming from the West, as we have seen in Schmitt’s Weimar writings, were social, individualist, yet dominated by interest-group associations that were hostile to the state and politics, thereby undermining any notion of a collective entity standing united in the face of the nonpolitical politics of liberal moneyed individualism. Alas, Stein withered on the vine, writing tome upon tome of administrative law and practice.

But here is the punchline: “Seine Wirkung ist also keineswegs zu Ende” (His influence is by no means at an end) (Schmitt 1995, 160). Far from being over and done with, the effect of his thought and his work still remains relevant today—and the “his” refers not only to Stein but implicitly to Schmitt as well. The nineteenth-century problematic and early twentieth-century intensification of the crisis of the state and the political was quite obviously not solved by the Führer-Prinzip and the triadic structure of state, movement, and people after all. We still struggle, therefore, with the tensions Schmitt charted, the principled undermining of collective state action by group actors hiding behind the Schutzwall of individual rights, on the one hand, and, on the other—though Schmitt continues to downplay this threat, even after he lived through its realization—the danger of the oppression of the individual by the unbridled collective, or the charismatic representative of that body. Liberal theory is incapable of solving or even seeing the problem. The sad part of this whole story, however, is that, despite all the clever things I have ventriloquized through the voice of Carl Schmitt, I do not know what is capable of solving the problem either. Or even capable of seeing it as a problem.

Of course, others will say, if the state, then the idea and existence of the individual is dead. This is the dilemma we keep circling around.

On this, see Schmitt, “The Liberal State” (2000a), 47.

This text has been translated in abridged form in Vinx, The Guardian of the Constitution (2015). Also included in this volume are other texts by Schmitt and texts by Kelsen, all representing the early 1930s debate about whether judicial review or executive leadership should be the “guardian of the constitution.” My concern is not with that debate but with Schmitt’s description of the total state (self-organizing society).

See Hintze, The Historical Essays of Otto Hintze (1975), 267–301; and Schmitt, Dictatorship (2014a), 34–79.

For a very different and far more critical account of what Schmitt meant by total state, see Scheuerman, Carl Schmitt (1999), 85–112. Scheuerman situates his discussion primarily in the final years of the Weimar Republic, with no reference to the nineteenth century (i.e., Hegel or Stein).

An English translation of Jünger’s essay “Total Mobilization” can be found in Wolin, The Heidegger Controversy (1993), 119–39.

Recall it was Preuß in 1917 who saw the pre-Weimar monarch performing this duty.

See, for instance, “Konstruktive Verfassungsprobleme,” “Starker Staat und gesunde Wirtshchaft,” and “Absolutismus,” with detailed annotations by Günter Maschke, in Schmitt, Staat, Großraum, Nomos (1995), 55–101. See also Schmitt, Verfassungsrechtliche Aufsätze aus den Jahren 1924–1954 (1958), 174–80.

See the discussion in Schmitt, Staat, Bewegung, Volk (1933), 5–11. In particular, note his reference to the March 24, 1933, Ermächtigungsgesetz (enabling act or law) as “ein vorläufiges Verfassungsgesetzes des neuen Deutschland” (a provisional constitutional law of the new Germany) (7). All translations are mine. There is an English translation of this text (Schmitt, State, Movement, People [2001]) against which you may check the translations I have provided.

10.

Denizens of the United States think immediately of the so-called super PACs that now control campaign spending after the Citizens United Supreme Court decision.

11.

For an enthusiastic contemporary appraisal of the Economic Council established by this second half of the constitution, see Finer, Representative Government and a Parliament of Industry (1923), esp. 98–120. In truth, this section of the constitution remained ineffective, inert.

12.

On Schmitt’s post-March 1933 enthusiasm, see Mehring, Carl Schmitt (2014a), 291–327; Mehring, Kriegstechniker des Begriffs (2014b), 73–98. For the 1936 attacks on Schmitt and their aftermath, see Bendersky, (1983), 219–42, and Mehring, Carl Schmitt (2014a), 346–48.

13.

On his turn to discussions of the history of the state and the origins of the jus publicum europaeum, see Schmitt, The Leviathan in the State Theory of Thomas Hobbes (2008b); many of the essays collected in Schmitt, Staat, Großraum, Nomos (1995); and of course Schmitt, The Nomos of the Earth (2003).

14.

See Mehring, Carl Schmitt (2014a), 384.

15.

A copy of the text that Schmitt presented, with dedication, to a young colleague in 1948 was the basis for a recent reprint. See Stein, Zur preuβischen Verfassungsfrage (2002). Schmitt’s afterword also appears in Schmitt, Staat, Großraum, Nomos (1995, 156–65), with annotations by Günter Maschke. References are to this volume. On Stein’s essay, see also Koselleck, Futures Past (2004), 58–71.

16.

Marx is conspicuously absent, but that may have something to do with the times in which this afterword was written.