The name Carl Schmitt draws mostly negative responses because of his association with and the defense of the Nazis during the years 1933â1936. But even his most bitter detractors recognize that he was one of Germanyâs most important thinkers and was a leading constitutional scholar of the times. He was not only a great thinker and scholar; he was also a literary master. His writings during the 1920s were widely read and commented upon, in large measure because he was such a penetrating critic of German liberalism and its belief in the rule of law. Schmitt also believed in law; yet, he was convinced that law was political like almost everything else. He was a critic of liberalism as well, but his objections were not founded so much on the notion of liberalism itself; rather, he was convinced that its belief in discussion and toleration was misguided and that it threatened the unity of the state. Under normal circumstances, this would be problematic, but during the Weimar period Germany was anything but normal. Hundreds of books have been written on Germanyâs history between 1919 and 1933 and undoubtedly hundreds of books will be written in the future. Here, the barest of outlines will be offered in order to place Carl Schmittâs writings from this period into context. But in order to understand Weimar, one must have some sense of what brought Weimar into being.
Prior to 1914 Germany had moved from a mostly agrarian state to a major industrial power. By 1914, France and Britain had become suspicious of its designs and the outbreak of the war in August 1914 seemed to confirm their fears. Although the war began favorably for Germany, by 1915 there were concerns that victory might not happen. Yet, the leaders assured the population that Germany would soon be victorious. As the war dragged on, Germany suffered mounting disastersâmassive casualties, food shortages, and in the fall of 1918, considerable unrest. November saw Germanyâs defeat, revolution, and the Kaiserâs abdication and subsequent flight. During the first half of 1919 there were major discussions regarding how Germany would be reconstructed and the task of drawing up a new constitution was delegated to Hugo Preuss. The result was the Weimar constitution (âWeimarer Reichsverfassungâ) which was adopted in August of that year. The period between then and 1933 moved from an early period of political and economic upheaval to a time of relative calm, to the final years of economic collapse and political chaos. Throughout this time, Carl Schmitt was among the leading legal theorists. But what distinguished him from many others was his constant critique of liberalism and its belief in the normalcy of law. He believed that its foundation was insufficient to meet the crises that he saw unfolding and those that he warned would be occurring within the near future.
In 1934 Carl Schmitt published a brief article entitled âDer FĂŒhrer schĂŒtz das Rechtâ (âThe FĂŒhrer Protects the Lawâ). This article has been taken as an indication of Schmittâs most loyal allegiance to Adolf Hitler and as a real indication that Schmitt was the âcrown jurist of the Third Reich.â There is much in this article to support those claims: Schmitt argued that Hitler had been warning for years that Germany was in danger, both from external enemies and from internal traitors. As such, Schmitt contended that Hitler earned the right and the power to establish a new order, one that was not based upon empty legalisms but was founded on true justice. The FĂŒhrer was the protector of the law and earned the right to be the highest judge. In Schmittâs view, the FĂŒhrer could do no wrong (Schmitt 1988b: 199â203). For the next several years Schmitt vociferously defended the Nazi regime but in 1936 his support was questioned and he fell from grace.
For Schmittâs opponents, his life after 1936 was payback for being a Nazi defender. Not only had Schmitt been banished from the high ranks of the Nazis, but after the war he was imprisoned, first by the Russians and then detained twice by the Americans. When he was finally released in 1947, he went into exile in Germany. While some friends visited him and an increasing number of scholars trekked to his home, he rarely left his village of Plettenberg. For many of his critics, his life after 1936 until his death was not just âSchadenfreudeâ but was a fitting end to one of the most vocal propagandists for the Third Reich. However, that is beside the point here. Schmittâs claim that the FĂŒhrer was the protector of the law was primarily a conclusion of his arguments throughout most of his life prior to 1935 and that was that Germany was being rendered helpless because of its misplaced belief in law and liberalism. Because Germans were trusting empty legalisms and engaging in fruitless discussions, the nation was not recognizing the need for emergency measures. What was needed was not talk of tolerance and equality but direct action against Germanyâs enemies. Schmitt believed that he was living through extraordinarily troubling times and he likened himself to someone else who also wrote of protection and obedienceâThomas Hobbes. Some scholars have regarded Hobbes as the âApostle of Fearâ and they may be right. But I suggest that Carl Schmitt is also entitled to that name because he, too, insisted on the necessity for public security and order. I will leave it up to Hobbes scholars to determine how closely Schmitt followed Hobbesâ political philosophy. What I am attempting to do is to show how the threat to security and order motivated much of Schmittâs writings from 1912 until 1932. Schmitt was in error to believe that a strong leader was the only defense a nation had but he was correct in much of his criticism of law and we would be wise to learn from his complaints about liberalism.
In the âVorwortâ to his 1940 collection of articles and speeches entitled Positionen und Begriffe. In Kampf mit Weimar-Genf-Versailles 1923â1939, Carl Schmitt wrote that as Heraclitus had insisted one could never go through the same river twice, one could never give the same speech or write the same article twice.1 His point was that as time passes and circumstances change, one cannot maintain the same exact position that one previously had. Instead, one must realistically adapt to the present situation. The point here is that Schmitt did change his mind during the period under consideration and he altered his approach as the change in circumstances warranted. Nonetheless, during most of this period Schmitt never wavered in holding to two of his core convictions: first, that Germany was under siege from within as much as without and, second, that the belief in law and liberalism was not only naĂŻve, but was a clear and present danger to the nation. Some scholars have considered Carl Schmitt to be wrong politically, but nevertheless regarded him as one of Germanyâs leading jurists while many others have dismissed his legal writings and have rejected him for his politics. My contention is that during the period under consideration, he was one of the best constitutional scholars that Germany had and that he was one of the most trenchant critics of liberalism in Europe. As such, we have much to learn from him about the limits of law and liberalism. Because my account ends in 1932, I will not need to address his Nazi affiliation or his post-war marginalization. Equally important is the fact that, with the exception of a few comments in the conclusion, I have refrained from making value judgments about Schmittâs positions on law and liberalism. My purpose here is to understand Schmittâs criticisms, not to condemn him. Schmitt has had many detractors and few defenders, but the former often wished to vilify him while the latter sometimes tried to lionize him. I deliberately choose to avoid both sides; I have striven to understand him. In so doing, I have sought to adhere to Max Weberâs distinction between facts and values, between scholarship and partisanship. Scholarship strives for objectivity but values are subjective. I will leave these issues regarding Carl Schmittâs values and beliefs to others to consider; my concern is with his constant complaint that la...