Legality and Legitimacy.

Vol. 14 No. 8 (August 2004), pp.619-623

LEGALITY AND LEGITIMACY, by Carl Schmitt. Translated and edited by Jeffrey Seitzer with an introduction by John P. McCormick. Durham: Duke University Press, 2004. 216pp. Cloth - $74.95. ISBN 0-8223-3161-6; Paperback - $21.95. ISBN 0-8223-3174-8.

Reviewed by Benjamin Gregg, Department of Government, University of Texas at Austin. Email: bgregg@mail.utexas.edu .

Carl Schmitt published LEGALITY AND LEGITIMACY one year before the collapse of the Weimar Republic (1919-1933), the first democratic polity on German soil. Its liberal democratic constitution did not achieve the popular, cultural, and institutional attachment capable of preventing Germany’s subsequent descent into twelve catastrophic years of an otherworldly leader who invoked in an antidemocratic spirit the ever-powerful notion of “the people.” Otherworldly leader and antidemocratic spirit are the very terms in which Schmitt, a leading jurist of the Weimar Republic and then Kronjurist des Dritten Reiches, sums up decades of his thought as he configures his preferred political community. To read LEGALITY AND LEGITIMACY in the context of his earlier publications is to see that the book constitutes something of a culmination of twenty years of Schmitt’s thinking and writing. And the community it envisions has four partially overlapping features: (1) antirationalism, (2) totalitarian étatism, (3) an otherworldliness tied to antidemocratic sentiment, and (4) an otherworldliness tied to a particular notion of sovereignty. By “otherworldly” I mean that Schmitt assigns metaphysical significance to a worldly decisionism.

(1) Schmitt rejects rationalism in the form of legal formalism (today often called proceduralism). As early as 1912, in GESETZ UND URTEIL [LAW AND JUDGMENT], he claims that no legal order can form a rationally consistent, closed system of norms generated by a legislature that is separate from the enforcing executive. In any given case something other than legality always remains, something beyond general norms, something deeply particular. LEGALITY AND LEGITIMACY takes this argument further. Fixed, calculable rules and procedures open up the “legal process to all conceivable aspirations, goals, and movements, even the most radical and revolutionary, enabling them to achieve their aim without violence or disruption through a legal process that establishes order while at the same time it functions in a completely ‘value-neutral’ way” (p.10). Legal procedures cannot adequately secure a political system’s legitimacy because a regime of robust legal proceduralism is vulnerable to a perfectly legal means for undermining the very rule of law that proceduralism seeks. Absent a certain substantive norm (detailed below), it is defenseless against organized political forces electable to parliament that would abuse or even abolish parliament, such as both the communists and the National Socialists at the very time Schmitt published LEGALITY AND LEGITIMACY. [*620]

Here as elsewhere, Schmitt is inconsistent: once the National Socialists gained parliamentary power in January 1933, he joined them in March and, in April, drafted legislation leading to the Gleichschaltung (a Nazi euphemism for the process by which the regime between 1933 and 1937 established a system of total control over and coordination of all aspects of German society). Hollow ring his claims to be concerned with the unintended consequence of the Weimar constitution’s provision of a legal means for undermining the rule of law. To be sure, LEGALITY AND LEGITIMACY calls for a substantive normative point outside the closed circle of legal proceduralism in the conviction that only such a point affords a vantage from which one might plausibly evaluate the respective goals of competing political parties, some of which may well be antiparliamentarian and thus problematic if elected to parliament. Yet at the same time Schmitt embraces an antiparliamentarian “solution.” He identifies a prelegal, substantive norm – what he obliquely refers to simply as “the political” – by appeal to which proceduralism might be “saved” from itself. In this view, the supreme weakness of constitutional democracy is its formal legality. A polity (or more precisely, its conservative elite) must break with strict legality to save it. Of course, nothing is being saved (such as liberal parlimentarianism) where something very different, indeed contrary to what is ostensibly being “saved,” is being introduced: authoritarian antiparlimentarianism.

(2) In POLITICAL THEOLOGY, published in 1922, Schmitt claims that the “existence of the state is undoubted proof of its superiority over the validity of the legal norm” (p.12) and that decision in times of major political crisis “becomes instantly independent of argumentative substantiation and receives an autonomous value” (p.31). LEGALITY AND LEGITIMACY further denigrates legal normativism by configuring the decisionistic state generated by massive political crisis (more about crisis presently). Here Schmitt envisions what he calls a “turn toward the total state,” away from the Sozialstaat (an early if distinct form of today’s liberal welfare state), weak because vitiated by competing special interests, toward a totalitarian state that abides no opposition and brooks no compromise with dissenters. By contrast, legal formalism implies no substantive outcome and even allows for outcomes that threaten social stability. In particular, legal indeterminacy dilutes, displaces, or sublimates the “integrity of the political” (“the political” constituting the prelegal substantive norm Schmitt continually invokes). Only a plebiscitary dictatorship can restore that integrity, he argues.

(3) Already in 1914, in DER WERT DES STAATES UND DIE BEDUETUNG DES EINZELNEN [THE VALUE OF THE STATE AND THE SIGNIFICANCE OF THE INDIVIDUAL], Schmitt articulates what he takes to be the moral superiority of the decisionist state over the individual citizen. At the same time (and in another inconsistency), he claims that law as constitutional clause or parliamentary statute cannot adequately reflect popular will. A political process of bargaining and compromise among parties misses, ignores, or denies “the people’s will.” And whereas “the people” can misunderstand its own best [*621] interests, a conservative otherworldly elite, indeed an extralegal one, unlike worldly legislators, can best decide for the citizenry. For Schmitt, presidential discretion, not parliamentary majority, best captures popular will. According to LEGALITY AND LEGITIMACY, “one provides threshold requirements and limitations for parliament, though not for the direct expressions of the people’s will itself, about which one has known since ancient times that the people cannot discuss and deliberate” (p.64). The special person rules and all other persons find in him and in him alone their political fate, which he and he alone knows to be in their best interest: “The people can only respond yes or no. They cannot advise, deliberate, or discuss. They cannot govern or administer. They also cannot set norms, but can only sanction norms by consenting to a draft set of norms laid before them. Above all, they also cannot pose a question, but can only answer with yes or no to a question placed before them” (p.89). The semidivine leader saves the bovine masses: the citizenry’s obedience to formal legal norms is grounded in obedience to a very personal and particular authority that renders decisions ex nihilo. Schmitt appeals to a point outside the logically closed circle of a legal proceduralist system. Only such an extralegal substantive norm can provide the legitimacy wrongheadedly thought to be achieved through legal proceduralism. Only the substantive norms of a metaphysical or theological elite, namely the extralegally acting executive, can “save” the modern legal community from paradoxically undermining itself by its own legality.

(4) The route to this superman lies through the Weimar constitution’s Article 48 concerning “measures during the disturbance of security and order.” It authorizes the president to compel a Land (one of the individual states making up a federal system) to “fulfill its duties.” It grants him all necessary measures to restore public security and order “with the aid of armed forces” as well as by provisionally suspending the citizen’s constitutional rights: government by executive decree (in this sense, the otherworldly superman is the true embodiment of these constitutional “emergency powers”). In POLITICAL THEOLOGY Schmitt maintains that “[a]ll significant concepts of the modern theory of state are secularized theological concepts” (p.36). In LEGALITY AND LEGITIMACY he redeems this claim: the plebiscitarily elected executive somehow incarnates, in his person, a preconstitutional, empirically unverifiable, popular will, even as the citizenry will never understand how that might be. According to Schmitt, “for the extraordinary lawmaker of Article 48, the distinction between statute and statutory application, legislative and executive, is neither legally nor factually an obstacle. The extraordinary lawmaker combines both in his person” (p.71).

Schmitt’s political authoritarianism involves the rejection of constitutionalism and the embrace of a decisionist notion of sovereignty, further developing a theme of POLITICAL THEOLOGY, which begins with the sentence: “Sovereign is he who decides on the exception” (p.5). He redeems this claim as well in LEGALITY AND LEGITIMACY, arguing that, especially in times of political crisis, presidential decree should trump parliamentary [*622] statute just as the otherworldly status of the extraordinary leader should trump the merely procedurally justified status of the legislature: the “extraordinary lawmaker can create accomplished facts in opposition to the ordinary legislature” (pp.69-70).

Indeed, the state of exception is political eschatology: it allows for the existentially (indeed otherworldly) significant “authentic politics” precluded by normal politics in the bourgeois state. If extraordinary times call for extraordinary measures, Schmitt wants to institutionalize the extraordinary (assuming against common sense that the eschaton can be institutionalized) in an executive free of legal-procedural restrictions, a freedom never to be extended to the legislature or judiciary. The rub: such a norm must violate proceduralism’s integrity; a “parliamentary dissolution might substantively conform to the spirit of the constitution, and yet not be legal” (p.10). Illegitimate, by contrast, is the legality that allows a political order to vote its own demise. For Schmitt, then, the grounds for legitimate legal community are themselves “extralegal.” (Only a formalist would claim that extralegality can play no coherent role within legality, but this is hardly a problem for Schmitt.) Presidential degree trumps parliamentary statute; the putatively permanent substantive norm trumps the ever-shifting norms of governments formed by the party garnering the most votes. The legal community’s legitimacy should, according to Schmitt, reside not in procedural norms but in the substantive preferences of the executive.

Jeffrey Seitzer’s clear and readable translation, together with John McCormick’s learned and judicious introduction, now extend to the Anglophone community an opportunity to consider the summation of Schmitt’s original, provocative, though internally inconsistent assault on liberal democracy and the rule of law. We would do well to consider how Schmitt could ignore, even in prospect, the incalculable dangers of authoritarianism. As Leo Strauss wrote in a contemporary review of THE CONCEPT OF THE POLITICAL, the second book Schmitt published in 1932, the “critique of liberalism that Schmitt has initiated can . . . be completed only when we succeed in gaining a horizon beyond liberalism” (p.105). How could either man disregard the extraordinary kind of authoritarianism in fact lying just beyond that horizon?

REFERENCES:

Schmitt, Carl. 1912. GESETZ UND URTEIL: EINE UNTERSUCHUNG ZUM PROBLEM DER RECHTSPRAXIS. Berlin: O. Liebmann.

Schmitt, Carl. 1914. DER WERT DES STAATES UND DIE BEDUETUNG DES EINZELNEN. Tübingen: J.C.B. Mohr (Paul Siebeck).

Schmitt, Carl. 1985 [1922]. POLITICAL THEOLOGY. FOUR CHAPTERS ON THE CONCEPT OF SOVEREIGNTY. Translated by George Schwab. Cambridge: MIT Press.

Strauss, Leo. 1976 [1932]. “Comments on Carl Schmitt’s DER BEGRIFF DES POLITISCHEN,” 67 ARCHIV FÜR SOZIALWISSENSCHAFT UND SOZIALPOLITIK 732-749, translated by George Schwab and reprinted in Carl Schmitt. 1976 [1932]. THE [*623] CONCEPT OF THE POLITICAL. Translated by George Schwab. New Brunswick: Rutgers University Press.

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