Schmitt, Carl (1888–1985)

Carl Schmitt was twentieth-century Germany's most theoretically ambitious right-wing authoritarian jurist. He was certainly among the most controversial because of his decision to join the National Socialist Party in 1933 and his subsequent attempt to become the “crown jurist of the Third Reich.” Despite his sordid Nazi-era political involvements, Schmitt has exerted substantial influence on legal thinking in many parts of Europe since 1945. He has recently become a popular topic for scholarly inquiry outside Germany as well, with some left-wing scholars in the Englishspeaking world now turning to his ideas to discredit legal liberalism.

The source of Schmitt's influence is easy to identify. His writings are filled with provocative and penetrating insights about his chief intellectual target, liberal jurisprudence. Underscoring the impossibility of directly deducing judicial decisions from abstract legal norms, Schmitt's early work on judicial decision making arguably anticipated the debate about legal indeterminacy, which has so fascinated American legal scholars, including legal realists and those in the critical legal studies movement.

In his wide-ranging writings on international law, inspired by Schmitt's own experiences as a young man in the occupied Rhineland after World War I, he systematically unveiled the inconsistencies and hypocrisies of liberal international law, underlining how humanitarian rhetoric in international law risks becoming a cover for new forms of imperialism. Too often, Schmitt argues, the moralistic categories of “universalistic” liberal international law provide a dangerous political tool for the great powers to pursue terrible crimes in the name of humanity. The “realist” school of international relations, via Hans Morgenthau (1904–1980)—who was familiar with Schmitt's work—later imported this critique into Anglo-American intellectual circles.

Like many other twentieth-century thinkers on both left and right, Schmitt chronicled the disintegration of the classical nineteenth-century liberal conception of the separation of state from society. Yet, he went on to argue that the complex fusion of state and society that was characteristic of twentieth-century political and social reality necessarily undermined liberal representative government, the liberal rule of law, and liberal constitutionalism. As Schmitt argues in his 1926 book, The Crisis of Parliamentary Democracy, the classical liberal vision of a deliberative parliament capable of generating reasonable statutes was normatively and empirically untenable. Well before the demise of the Weimar Republic, Schmitt toyed with alternative authoritarian political models.

Schmitt also insisted on the existence of a fundamental tension between popular sovereignty and liberal legal ideals such as the rule of law and constitutionalism. However, Schmitt again went further than countless other legal scholars who have identified the same tension: the fundamental tension between democracy and liberal jurisprudence suggested to him the possibility of a legitimate form of mass-based (democratic) dictatorship that would be free of the anachronistic legacy of liberal law. In 1933, Schmitt seemed to reach the conclusion that National Socialism might play this historical role.