Violence

Thinking without Banisters

Richard J. Bernstein

• Publisher: Polity
• Year: 2013
• ISBN:
  9780745670881
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

We live in a time when we are overwhelmed with talk and images of violence. Whether on television, the internet, films or the video screen, we can't escape representations of actual or fictional violence - another murder, another killing spree in a high school or movie theatre, another action movie filled with images of violence. Our age could well be called "The Age of Violence" because representations of real or imagined violence, sometimes fused together, are pervasive. But what do we mean by violence? What can violence achieve? Are there limits to violence and, if so, what are they? In this new book Richard Bernstein seeks to answer these questions by examining the work of five figures who have thought deeply about violence - Carl Schmitt, Walter Benjamin, Hannah Arendt, Frantz Fanon, and Jan Assmann. He shows that we have much to learn from their work about the meaning of violence in our times. Through the critical examination of their writings he also brings out the limits of violence. There are compelling reasons to commit ourselves to non-violence, and yet at the same time we have to acknowledge that there are exceptional circumstances in which violence can be justified. Bernstein argues that there can be no general criteria for determining when violence is justified. The only plausible way of dealing with this issue is to cultivate publics in which there is free and open discussion and in which individuals are committed to listen to one other: when public debate withers, there is nothing to prevent the triumph of murderous violence.

Chapter 1

The Aporias of Carl Schmitt

The Ambiguous Legacy of Carl Schmitt

In his 1991 book review of Bernd Rüthers, Carl Schmitt in Dritten Reich, William Scheuerman asked the question, “Why should anyone really care about right-wing legal thinker Carl Schmitt’s activities during the dark days of Nazi dictatorship?” At the time, Schmitt was barely known in the United States, although there were signs of “the so-called Schmitt renaissance that has taken place both in North America and Western Europe during the last decade” (Scheuerman 1991: 71). Scheuerman was sharply critical of the new fascination with Schmitt and the “attempt to minimize Schmitt’s complicity in the horrors of Nazi barbarism.” He expressed the hope that Rüther’s “refreshingly straightforward and fair study” of this dark and ugly phase of Schmitt’s life would finally “discourage more scholars from rushing to hop on the Young Schmittian bandwagon” (Scheuerman 1991: 78).

But now, more than twenty years later, the “the so-called Schmitt renaissance” has turned into a veritable tsunami. Schmitt’s work is actively and passionately discussed throughout the world. He has been hailed as the most incisive, relevant, and controversial political and legal theorist of the twentieth century – and the enthusiasm for Schmitt is shared by thinkers across the political spectrum from the extreme left to the extreme right. At the same time, we now have much more detailed knowledge of how quickly and actively Schmitt helped to implement Nazi policies, as well as the crudeness of his anti-Semitic slurs in both his public and his private writings.¹ How, then, are we to explain the current fascination with Schmitt? There are no simple explanations, but here are some of the strands that run through the current literature.

With the growing disillusionment with the varieties of “really existing” liberal and neo-liberal democracies, Schmitt’s early – and sustained – trenchant analysis of liberalism has been taken to be one of the most penetrating and devastating critiques of contemporary liberalism (in all its varieties). Even those who reject Schmitt’s extreme diagnosis of contemporary liberalism concede that he locates some of its most serious weaknesses and problems. Schmitt reveals the deep tensions between democracy and liberalism with a greater sharpness than any other twentieth-century political thinker. And although Schmitt’s early analysis of the crisis of parliamentary democracy was concerned primarily with the Weimar Republic, he had an insight into the problems that plague liberal democracies right up to the present. He exposed the hypocrisy of liberal humanism – a humanism that has become an ideological justification for a new, dangerous kind of war in which the aim is not simply to defeat, but totally to annihilate, the enemy. Those who approach Schmitt primarily as a legal and juridical thinker concede that he has revealed one of the most serious issues of legal jurisprudence – the “enigma of legal indeterminacy.” Schmitt argues that, regardless of professed liberal claims that legal decisions should be based solely on the rule of law, in fact all legal norms are unavoidably open-ended and indeterminate. This means, as Scheuerman tells us, that “Every legal decision is a hard case. Liberal demands to clarify and codify law are inherently flawed because no system of legal norms can hope to guarantee even a minimal degree of regularity and determinacy within legal decision making” (Scheuerman 1999: 17). Even if one rejects Schmitt’s extreme views about the relation between legal norms and actual juridical decisions, he opens up what has been, and continues to be, the most controversial issue in all defenses of the “rule of law”: What are (and what ought to be) the limits of “discretion” in interpreting and applying the law?

Some political theorists find Schmitt’s entire approach to politics refreshing and realistic. Schmitt avoids the “rationalism,” “normativism,” and “moralism” that are presumed to plague so much of contemporary political theory. His famous (some would say infamous) pithy declarations that “the specific political distinction to which political actions and motives can be reduced is that between friend and enemy” and that “the distinction of friend and enemy denotes the utmost degree of intensity of a union or separation” have been interpreted as initiating a new, invigorating, realistic, and concrete approach to politics. Schmitt is the thinker who “tells it as it is” and doesn’t pull any punches. Part of the attraction of Schmitt to left thinkers is that he provides sharp weapons for criticizing and exposing the normativism and rationalism of thinkers such as John Rawls and Jürgen Habermas.² He is an antidote to the “suffocating” Kantianism that dominates so much political theory and philosophy today. He exposes the inadequacies of theories of deliberative democracy, which overemphasize the role of deliberation and the appeal to reasons in making political decisions. Schmitt’s defenders argue that the essence of real politics – even democratic politics – is not deliberation or seeking to achieve a “rational” consensus, but rather vigorous agonistic conflict and enmity. And Schmitt, so it is claimed, had the perspicacity to see that this is what is at the heart of “real politics.”

The fecundity of Schmitt’s thinking can be seen in other areas. Although a prolific writer, the two short texts that have been his most influential are The Concept of the Political and Political Theology. The latter begins with the dramatic claim: “Sovereign is he who decides on the exception,” and declares that “all significant concepts of modern theory of the state are secularized theological concepts” (Schmitt 2005: 5, 36). There has been almost endless commentary on just these two claims. Prior to Schmitt, the expression “political theology,” as he himself notes, was used primarily in the nineteenth century as a term of abuse. But today “political theology” has almost become a culture industry. Although there were other contemporaries of Schmitt – most notably Walter Benjamin – who were explicitly concerned with political theology, I think it is fair to say that Schmitt’s work is the primary provocation for the extensive discussion of political theology today. The German political theorist Heinrich Meier argues that political theology stands at the very core of all of Schmitt’s oeuvre; it is the key for understanding Schmitt. And Meier draws a strong contrast between political theology (Carl Schmitt) and political philosophy (Leo Strauss).

Finally, I want to mention still another approach to Schmitt’s work. Andreas Kalyvas acknowledges that Schmitt’s “enthusiastic support of the Nazi seizure of power in 1933, his infamous justification of Hitler’s crimes, and his virulent anti-Semitism are more than enough to dissuade a discussion of Schmitt’s views on democracy” (Kalyvas 2008: 80). Yet Kalyvas argues that a “selective critical reading” of Schmitt’s major constitutional writings provides insights into the politics of the extraordinary that can be reconstructed to develop a theory of radical democracy. Kalyvas is perfectly aware that he is not only departing from Schmitt’s explicit intentions but is using his “insights” to develop a theory of radical democracy that Schmitt would find repulsive. But Kalyvas exemplifies a characteristic of many of the new interpreters of Schmitt. Acknowledging Schmitt’s Nazi complicity and the vulgarity of his anti-Semitic remarks, they focus on ways in which Schmitt’s arguments and themes about law, constitutions, and politics can be appropriated and used for purposes that Schmitt never intended. And, of course, what so distresses some of Schmitt’s harshest critics is that they see this selective use of Schmitt as ingenuous – a failure to realize that even his pre-Nazi Weimar writings are continuous with, and lay the groundwork for, his active Nazi complicity.

My purpose in this brief review of Schmittian themes is not to endorse any of them, but rather to indicate why we can’t simply ignore Schmitt and the controversies surrounding his work. There are other reasons for taking Schmitt seriously. Debates about Schmitt’s theses are not a new phenomenon. They began almost as soon as he started publishing, long before the Nazis came to power. Consider a partial list of some of the leading thinkers of the twentieth century who have seriously engaged with Schmitt. Among Schmitt’s early contemporaries were Leo Strauss, Walter Benjamin, Martin Buber, Herbert Marcuse, Franz Neumann, Otto Kirschheimer, Karl Löwith, Hans Blumenberg, Alexandre Kojève, Hans Morgenthau, Joseph Schumpeter, and Friedrich Hayek. More recent discussants and critics include Jacob Taubes, Jürgen Habermas, Jacques Derrida, and Giorgio Agamben. One measure of any thinker’s significance is the stature of those who feel the need to confront, discuss, and criticize his work. By this criterion no one can seriously doubt the importance of Schmitt (as distinguished from what sometimes seems like a faddish fascination).

The Political: The Friend/Enemy Distinction

My aim in this essay is to ask and answer a straightforward question: What do we learn from Schmitt about enmity and violence? I am not simply asking what he explicitly says about these concepts – although this is where we must begin. I want to see where his thinking leads – what is entailed by the trains of thought that he pursues. My question is direct, but answering it requires pursuing a number of byways. These include exploring (1) precisely how we determine who is the enemy and who is the friend; (2) how we are to understand decision and its relation to political judgment in concrete life; and (3) the aporetic character of Schmitt’s “anti-humanism.” I will focus primarily on The Concept of the Political – although probing Schmitt’s claims will require ranging over his other writings published before and after this influential work. Schmitt tells us that “all political concepts, images, and terms have a polemical meaning” (Schmitt 1996a: 30). I agree with Schmitt, so I want to acknowledge from the outset that my discussion – insofar as it is political – has a polemical intent. But, as Schmitt also indicates, being polemical is not incompatible with being fair to one’s adversary. I want to follow the hermeneutical principle of trying to give a fair account of Schmitt’s views in order to have a serious encounter with his ideas.

So let’s turn directly to the famous friend/enemy distinction as it is introduced in The Concept of the Political. This is not as straightforward as it seems. Like almost everything that one touches in dealing with Schmitt, this text raises complex contentious questions. Which edition are we to consider? The Concept of the Political was originally published as an essay in 1927, revised for publication as a short book in 1932 and revised again in 1933. Are we also to take into account his subsequent reflections on this famous text? Heinrich Meier has argued that the differences between the 1932 and the 1933 editions are crucial, because they reveal a “hidden dialogue” with Leo Strauss. Scheuerman thinks that Meier overemphasizes the role of political theology in Schmitt’s jurisprudential and legal writings. He also claims that Meier “downplays the manner in which Strauss’s antimodernism can be read as a frontal attack on the (for Strauss, inherently modernist) decisions embodied by Schmitt.” But even more relevant, Scheuerman tell us:

Because Meier is primarily concerned with chronicling Strauss’s impact on Schmitt, he also clouds the fact that the truly important shifts in the basic argumentation of “the concept of the political” occurred between 1927 and 1932, not 1932 and 1933. Whereas the 1933 version of The Concept of the Political did include some changes probably encouraged by Strauss’s 1932 essay, far more fundamental shifts in Schmitt’s thinking can be identified between 1927 and 1932 versions. (Scheuerman 1999: 227)

These “more fundamental shifts” are due to the influence of the young Hans Morgenthau.³ I want to avoid getting entangled in these scholarly debates (except when I think they are relevant to my discussion) and I will focus on the canonical 1932 edition which has now been translated into English together with Leo Strauss’s notes.⁴

Schmitt begins The Concept of the Political with a direct but consequential statement: “The concept of the state presupposes the concept of the political” (Der Begriff des Staates setzt den Begriff des Politischen voraus) (Schmitt 1996a: 19). The concept of the state not only presupposes the political; these two concepts are distinct and are not to be confused. This distinction is important, because when Schmitt defines the political, he leaves open the question of its application. “The political” may designate “entities” or groupings that are not states. And there may be “states” that are not truly political. Later in his essay, Schmitt indicates that the so-called liberal state is not really political when he emphatically declares: “There exists a liberal policy of trade, church, and education, but absolutely no liberal politics, only a liberal critique of politics” (Schmitt 1996a: 70).⁵ Schmitt is not concerned with defining the state or characterizing its essence in this text. He does, however, mention some ways in which linguistic usage paraphrases what a state is. “The state is the political status of an organized people in an enclosed territorial unit,” and “in its literal sense and in its historical appearance the state is a specific entity of a people” (Schmitt 1996a: 19). But identifying state and politics “becomes erroneous and deceptive at exactly the moment when state and society penetrate each other.” When state and society become identical, when all “ostensibly neutral domains such as religion, culture, education, and the economy cease to be neutral,” then the state becomes the “total state.” “In such a state, therefore, everything is at least potentially political, and in referring to the state it is no longer possible to assert for it a specifically political characteristic” (Schmitt 1996a: 22). In short, if we restrict ourselves to trying to define the political by limiting ourselves to the concept of the state, we obscure the specific characteristic that makes something political. Let’s follow closely how Schmitt introduces his definition of “the political.”

A definition of the political can be obtained only by discovering and defining the specifically political categories. In contrast to the various relatively independent endeavors of human thought and action [relativ selbstständigen Sachgebieten menschlichen Denkens und Handelns], particularly the moral, aesthetic, and economic, the political has its own criteria which express themselves in a characteristic way. The political must therefore rest on its own ultimate distinction to which all action with a specifically political meaning can be traced. (Schmitt 1996a: 25–6)

Schmitt is making a key assumption here, which may initially seem quite innocent; but, as we shall see, it is not so innocent. He is assuming that there are categories and distinctions that are specifically political, and furthermore that we can sharply distinguish the political from other “endeavors” or spheres such as morality, esthetics, and economics. What is the warrant for this assumption? In part, in a tendentious manner, Schmitt is building upon the differentiation thesis associated with Max Weber. In the course of modern history different autonomous spheres emerge, each with its own distinctive criteria and logics. Without any further elaboration, Schmitt says: “Let us assume that in the realm of morality the final distinctions are between good and evil, in aesthetics beautiful and ugly, in economics profitable and unprofitable. The question then is whether there is also a special distinction which can serve as a simple criterion of the political and of what it consists. The nature of such a political distinction is surely different from that of those others. It is independent of them and as such can speak clearly for itself” (Schmitt 1996a: 26). I want to call attention to the rhetorical force of these claims. Not only does Schmitt assume the relative independence of these different realms, he suggests that there are simple (some might say simplistic) criteria for distinguishing them – “good and evil,” “beautiful and ugly,” “profitable and unprofitable.” The distinctions in these different domains are antitheses. He thereby sets the stage for his definition of “the political.”

The specific political distinction to which political actions and motives can be redu...