THE RULE OF LAW UNDER SIEGE: CARL SCHMITT AND THE DEATH OF THE WEIMAR

REPUBLIC
Author(s): Bill Scheuerman
Source: History of Political Thought , Summer 1993, Vol. 14, No. 2 (Summer 1993), pp.
265-280
Published by: Imprint Academic Ltd.

Stable URL: https://www.jstor.org/stable/26214358

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 THE RULE OF LAW UNDER SIEGE: CARL SCHMITT AND
THE DEATH OF THE WEIMAR REPUBLIC

Bill Scheuerman

Despite the fact that the authoritarian German political thinker Carl Schmitt
devoted much of his intellectual energy to an analysis of the profound transfor
mations undergone by the rule of law in the twentieth century, few commenta
tors in the Anglo-American intellectual world have grappled systematically
with Schmitt's contributions to legal scholarship. It is the central contention of
this essay that precisely such an undertaking is essential if we are to appreciate
the depth of Schmitt's hostility in the early 1930s to liberal democracy. An
interpretation of Schmitt's writings from the late 1920s and early '30s which
places special weight on his highly provocative critique of the liberal rule-of
law ideal suggests that Schmitt was far less eager to defend the liberal demo
cratic core of the Weimar Republic than a number of influential recent
commentators would like us to believe (Part I). Indeed, Schmitt's 'deconstruc
tion' of the liberal rule of law needs to be answered by those of us concerned
with defending and reformulating the rule-of-law ideal in a political and social
universe profoundly unlike that which generated it centuries ago. By means of
recourse to one of Schmitt's contemporaries and most perceptive of critics, Otto
Kirchheimer, I conclude by offering a few tentative comments on how we
might respond to Schmitt's deeply illiberal ideas from the late 1920s and early
'30s about the rule of law (Part II).

The modern rule-of-law ideal has taken many different theoretical and histori
cal forms, but its centrepiece has undoubtedly been the idea that governmental
action must be rendered calculable and restrained: it was the exercise of
arbitrary power, of despotism as they dramatically labelled it, that worried
liberals as diverse as the bourgeois Locke and the rabble-rouser Paine, the
aristocratic Montesquieu and the state-builder Madison. In the ominous shad
ows of all too real experiences of political tyranny, they all came to recognize
that poorly regulated and unpredictable state action made even a bare modicum
of political and social autonomy impossible, and they busily set about envision
ing institutional instruments with which state action could be made predictable
and thus more humane. The rule-of-law doctrine has its genesis in their
imaginative and historically unprecedented attempt to grapple with this task.

HISTORY OF POLITICAL THOUGHT. Vol. XIV. No. 2. Summer 1993

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 266 W. SCHEUERMAN

Locke's answer is in many ways the par

can only be prevented if the political
standing' laws, a separation between t
independent judiciary. In this classic stat
legislature must be dominant. This guara
as Locke and his peers feared, one do
'prerogative'. Governmental action must
publicly declared rules. But, crucially, t
It too can be a source of irregular inroad
and uncontrolled legislative majorities c
monarchs. Like the natural law whose pu
tion must therefore be general in charact
is that it cannot take the form of vague
and undetermined resolutions'. 'Undeter
decree insofar as it provides excessive lee
a potentially arbitrary, nongeneral fashio
ted to issue situation-specific measures o
directed against individual persons or obj
turn out to be as unpredictable and miser
1 <
Ill l lu 4 1 Util JUlgV

freedoms whose purpose it is to protect.

The idea of the general legal norm plays a crucial role in this early
version of the rule of law, and it is arguably the pillar of the famous
between a 'rule of men' and a 'rule of law'. Only if legislation does n
explicitly to particular persons or objects, but instead is issued in adva
meant to apply potentially to all cases and persons in the abstract, can
in depersonalizing the exercise of state authority. Only then can gov
action be truly impartial. When general norms, and not the particular
'passion-ridden' dictates of an executive or all-powerful assembly gui
action, is political authority regularized and tamed. If legislatures are p
to undertake individual acts, nothing prevents lawmakers from purs
pressive acts (against a particular property owner, for example) incap
being generally applied and thus lacking a universal justification.
insofar as general positive legislation is supposed to correspond to the
general imperatives of the 'law of reason' (natural law), the rule of law
be said to embody humanity's quest to model its order upon th
rationality that Locke, rather traditionally, still sees as embodied in
verse. It is what makes us most like God. The rule of law repres

1 John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge, 1967
Ch. XI, § 137. For a discussion providing helpful background about the immediate h
and intellectual context for this conception, see M.J.C. Vile, Constitutionalism
Separation of Powers (Oxford, 1967), esp. pp. 53-75.

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 THE RULE OF LAW UNDER SIEGE 267

hegemony of ratio, in contrast to mere voluntas. But this is all

'be varied in particular Cases . .. [and if we] . . . have one R
Poor, for the Favourite at Court, and the Country Man
humanity has succumbed to the rule of passion and, indeed
from God.
Despite their increasingly secular character, more recent ve
of law have maintained this emphasis on clearly formul
norms. Although God has generally disappeared from the pi
norm has stayed in place. It helps explain the abiding empha
a separation of powers — which, of course, has also taken co
central to most of them has been the notion that calculable and restrained
government presupposes a division between executive and legislative power as
well as an independent judiciary. Abstract and clearly formulated general norms
should only be 'applied' to particular cases which administrators and judges
lid LU 11-11U1I

between impartial (or general) and particular acts and thus contribute
lar and, therefore, potentially arbitrary action. As Max Weber noted in
and Society, administrators and judges were ideally to be like 'an au
into which legal documents and fees are stuffed at the top in order t
may spill forth the verdict at the bottom along with the reasons, rea
cally from codified paragraphs'.3 Despite the slightly sarcastic tone w
Weber describes this classical idea, and though he rightly recognize
necessarily expresses more a noble aim than legal reality itself, he to
it worth defending and saw it as constituting a basic presupposition o
'rational' legal authority and a minimum of legal security. Only wh
norms are coherently formulated and general in character can admin
and judges be expected to act in a manner that minimizes the d
inconsistent state action.
When developing his revised attack on the 'pluralistic' 'legislat
yyrescizgeoungssiaai) ana parliamentary legality during Weimar's fi
Schmitt has such conceptions of the rule of law in mind. In his view,
rule of law contradicts the concrete realities and most basic impera
contemporary politics.4 As I hope to demonstrate, Schmitt's ex

2 Locke, Two Treatises, II, §142.

3 Max Weber, Economy and Society (Berkeley, 1979), p. 979.

4 Schmitt develops the ideas discussed here (between 1928 and 1933) in numer
from this period, but its central features are worked out in: 'Wesen und W
Faschistischen Staates' (1929), 'Staatsethik und pluralistischer Staat' (1930)
dung zum totalen Staat' (1930), 'Weiterentwicklung des totalen Staats in De
(1933), all collected in Carl Schmitt, Positionen und Be griffe im Kampfmit We
Versailles (Hamburg, 1940); C. Schmitt, Der Hiiter der Verfassung (Tubingen,
Schmitt, Legalitdt und Legitimitat (Berlin, 1932). I will also refer to other tex

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 268 W. SCHEUERMAN

'trashes' the rule-of-law ideal without ac

about unharnessed and irregular state po
of it in the first place. Although at leas
tions are partially correct, and even though
of the rule of law undoubtedly addresses
of us who do not share Schmitt's normati
law today functions in a manner very d
classical defenders hardly constitutes an
an adequate defence of the authoritarian
IQ^Oc

Schmitt's case against the rule of law rests in part on a critiqu

'pluralist' welfare state with at least some similarities to contemporar
vative attacks on the welfare state. In a series of writings from the la
early '30s Schmitt undertakes to document the manner in which po
social groups effectively colonize the Weimar Republic's political app
In his view, extensive state action in the economy (and the resultant b
the traditional state/society divide) contributes to a potentially cata
situation in which the Weimar state loses its institutional integrity an
incapable of acting in an adequately 'decisive' manner. In Schmitt's c
the central state gradually abandons its monopoly on 'the politi

priate during the course of my exegesis. For a helpful overview of some of Sch
ideas from this period, but one which does not cover their transformation durin
'30s adequately: Rune Slagstad, 'Liberal Constitutionalism and Its Critics: Carl S
Max Weber', in Constitutionalism and Democracy, ed. J. Elster and R. Sla
bridge, 1988). The best overview in English of Schmitt's thinking from th
Richard Wolin, 'Carl Schmitt. The Conservative Revolutionary: Habitus and the
of Horror', Political Theory, Vol. 20, No. 3 (1992); Richard Wolin, 'Carl Schmi
Existentialism, and the Total Sate', Theory and Society, Vol. 19, No. 4 (1990). Fr
German literature I have found the following especially helpful: Ingeborg Ma
liche Rechtstheorie und Faschismus. Zur sozialen Funktion und aktuellen W
Theorie Carl Schmitts (Munich, 1976), as well as her essays in Ingeborg Maus, R
rie undpolitische Theorie im Industriekapitalismus (Munich, 1986); Volker Neu
Staat im Biirgerkrieg. Kontinuitat und Wandlung des Staatsbegriffs in der po
Theorie Carl Schmitts (Frankfurt, 1980), esp. pp. 100-137; Jiirgen Fijalkowski
dung zum Fiihrerstaat (Cologne, 1958); Hasso Hofmann, Legitimitdt gegen Leg
Wege der politischen Philosophie Carl Schmitts (Neuwied, 1964).

5 In the 1927 'Der Begriff des Politischen' Schmitt develops a conception of t

sphere centred upon a normatively unregulated act or 'decision'directed against
Schmitt, the foe 'is simply the Other, the Alien, and it is enough for his being t
a particularly intensive sense existentially something Other and Alien, so that in
conflict he means the negation of one's form of existence and therefore must
from and fought off, in order to preserve one's own appropriate form (eigene, se
Art) of life'. What Schmitt describes as 'the real possibility of violence' thu
essential for distinguishing political action from other forms of human action, su
(Schmitt tells us) encountered in the moral, economic or religious spheres.

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 THE RULE OF LAW UNDER SIEGE 269

Weimar rendition of the modem welfare state is no longer

'above' competing political and social interests and, reso
mously, determining the outcome of conflicts between the
the institutional structures which should allow it to do so ar
over by powerful interest groups and pluralistic 'special in
contemporary liberal democratic welfare state is thus at best
'arbitrator' capable of working out bad compromises among
political and social interest blocs, Schmitt admiringly notes
and even Soviet Bolshevism still possess a capacity for d
political action. There, the state apparatus allegedly constitut
basis of its own strength and authority decisive "Third" ',
peting social and party-based political and social interests an
will upon them when necessary.
According to Schmitt, the pluralist doctrines of English w
LasKi ana u.u.n. L.oie inus contain a numoer or revealing insignts. ifie
pluraliste ' endeavour to reduce the state to nothing but one among a number of
competing social institutions in fact reflects real-life developments in contem
porary politics, and the pluraliste' dramatic talk about 'the end of the state'
embodies the fact that in the contemporary era the state no longer constitutes
the ultimate authority in social and political affairs. But if the situation sug
gested by the pluraliste' insistence on the 'death of the state' is indeed an actual
one — Schmitt adds — then the contemporary welfare state finds itself (in
1930) in a historical juncture approaching civil war. The demise of a coherent,
unified state apparatus, exemplified most clearly by the fact that state institu
tions and decision making allegedly have been divided up among oftentimes
deeply antagonistic pluralistic social and political blocs, means for Schmitt that
a situation of political normalcy has vanished and that an 'ethics of civil war'

definition of sovereignty in the 1922 Political Theology (Cambridge, Mass., 1988) in terms
of 'he who decides on the exception' is inextricably tied to his more basic conception of the
political sphere. Genuine (or 'sovereign') political action is defined in reference to the
capacity to act effectively in a (potentially violent) crisis that no longer can be resolved
effectively by means of general norms or rules, or what Schmitt disdainfully refers to as
'normativities'; thus, the centrality of the 'exception' to Schmitt's definition. Carl Schmitt,
'Der Begriff des Politischen', Archivfiir Sozialwissenschaft, Vol. 58, No. 1 (1927).

6 Schmitt, 'Wesen und Werden des Faschistischen Staates', p. 112. If 1 seem to fuse my
discussion of Schmitt's attack on the Weimar Republic with his more general critique of the
liberal democratic welfare state, this is because Schmitt seems to do so himself. Notwith
standing its clear faults, this approach may not be altogether illegitimate; as a significant
amount of literature documents, Weimar in many ways was a pacesetter in establishing the
institutions of the contemporary welfare state. Franz Neumann, Behemoth: The Structure
and Practice of National Socialism (New York, 1963), pp. 3-34; Detlev Peuckert, Die
Weimarer Republik (Frankfurt, 1987), esp. pp. 132-48.

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 270 W. SCHEUERMAN

should guide political action. Even if t

decisive, sovereign political action, Sc
escaping from the logic of friend/foe po
'The Concept of the Political ' : some conf
intense, potentially violent political for
ency may be destined to ride this politic
From the perspective of the concrete pol
the political universe of the early '30s he
to grapple with the onerous implications of
authority. Particularly in a situation
crisis-ridden liberal democracy, political
'foes' — and then work to undermine th
For Schmitt, this crisis has long term
envisioned an autonomous and self-regu
the state and free from its influence whi
action by means of a monopoly over a f
parliament, whose legislative acts were to
general legal form. Schmitt thinks that t
in our century naively continues to pres
Particularly because ot tne centraiity ot social and economic contncts to
modern politics, extensive state activity in social and economic life has proven
unavoidable; only by means of far-reaching intervention can the state hope to
maintain its grip on potentially explosive class-based social antagonisms. With
the rise of the interventionist or, as Schmitt describes it, 'total' state, the
classical separation between the state and an autonomous society inevitably
collapses, and liberal democratic institutions necessarily undergo a series of
profound functional transformations. Amidst the conditions of the contempo
rary interventionist state the legislature, for example, is little more than a
'showplace for pluralist interests', and no one seriously believes anymore that
it articulates a 'general will' by means of unhindered debate and exchange.
Parliament is controlled by antagonistic interest groups and powerful blocs
representative of distinct segments of a profoundly divided polity lacking, like
the bureaucratized parties and plebiscitary elections which put legislators into
power, any interest in engaging in quaint rationalistic liberal discourse with
political opponents. In reality, political interests chiefly aspire to get their
interests registered by state administrators, and to make sure that those of their
hated foes do not get represented. Who today could share the old-fashioned
faith in the discursive rationality of parliament or parliamentarians? Or believe

7 Schmitt, 'Staatsethik und pluralistischer Staat', esp. pp. 144-5. See also Schmitt's com
ments about English pluralism in the 1932 version of The Concept of the Political, trans.
George Schwab (New Brunswick, 1976), pp. 39-45.

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 THE RULE OF LAW UNDER SIEGE 271

that the rule of law still functions to guarantee the sanctity o

society?8
Most significantly, Schmitt relies on an interpretation of the liberal legal
norm which permits him to show that it has become anachronistic in the age of
interventionist politics. Certainly, it is true that modern defenders of the idea
that law should take a general form like Locke and Rousseau, though for
different reasons, envisioned a political setting where there would be little need
for extensive state activity in society, and their emphasis on the virtues of
general law can surely be read as an attempt to limit state intervention alto
gether as much as to make sure that it takes a normatively acceptable form. At
first glance the insistence on law's generality indeed seems incompatible with
forms of specialized legislation (directed at a specific social group, or a branch
of industry) like that common today. Yet to leave the story there would be too
simple. Though one of the most eloquent defenders of modern formal law,
Hegel (for example) was neither a believer in bourgeois laissez-faire nor a
Rousseauian 'civic religion' allegedly capable of minimizing state intervention
in society, and there is surely evidence that other defenders of general law as
well did not conceive of it as an absolute prohibition on state regulation of
social and economic affairs.9 Even Rousseau writes:

when I say that the object of law is always general, I mean that the law
considers subjects as a body and actions in the abstract, never a man as
an individual or a particular action. Thus the law can very well enact that
there will be privileges, but it cannot confer on them on anyone by name.
The law can create several classes of citizens, and even designate the
qualities determining who has a right to these classes, but it cannot name
the specific people to be admitted to them.10

In other words, general law can legitimately regulate specific groups of prob
lems or individuals ('there will be privileges') as long as it does so without
naming an individual person or object and simply refers to an 'abstractly'
defined category. Rousseau thinks that a progressive income tax directed at
'subjects as a body' or en masse (for example: all those who earn more than X
francs) is perfectly legitimate if it serves the general will, but he would be
worried about law directed at a particular individual ('citizen A should pay X'
simply by virtue of being citizen A and having, let us say, fallen into disfavour
with a particular political authority).11 True, Rousseau exaggerates the extent

8
Schmitt, Der Hitter der Verfassung, pp. 71-91.
9
For Hegel's views on the generality of law: Hegel, The Philosophy of Right, trans. T.M.
Knox (New York, 1967), para. 211.

10 Rousseau, The Social Contract, ed. Roger Masters (New York, 1978), p. 66.
11 Rousseau, 'Political Economy', in The Social Contract, esp. pp. 230-2.

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 272 W. SCHEUERMAN

to which this distinction is always so clea

A earns more than X francs?),12 but h
Hegel, Bentham, and many others in the
it as a minimal check on the possibility o
Carl Schmitt probably underplays the co
defenders of so called 'deformalized' r
that the dominant liberal conception of t
requirements of extensive state intervent
Schmitt's view, a polity forced to act in
which no longer simply regulates the bro
instead now itself takes over many activ
cannot rely on an instrument as blunt
specialized, unprecedented forms of lawm
authority to administrative bodies, are ab
of the classical state/society distinction.
ered classically general in character. The
is not only explicitly individual in form
firm or bank) but relies upon what Lo
mined resolutions' ('in good faith', 'in th
reaching room for potentially arbitrary
Schmitt as evidence that the core of the
the legal norm — has become obsolete, a
power, which relied so heavily upon it, n
of judges and administrators as passiv
highly deceptive in classical liberalism
destined to take an increasingly amorpho
tors and judges no longer passively 'appl
relatively unambiguous type of action on
legislative and administrative actors inevi
against specific individuals and particu
distinction between legislative and adm
robbed of any real justification in our era

12
It is precisely this ambiguity which Schmitt, as we will see, in part plays upon in
developing his criticism of the liberal rule of law.

As one commentator has noted, the twentieth century has witnessed 'the rapid expansion
of the use of open-ended standards ... in legislation, administration, and adjudication . ..
Such indeterminate prescriptions have always existed in law, but they grow rapidly in
prominence' with the emergence of the welfare state. Roberto Unger, Law in Modern
Society (NewYork, 1976), pp. 193-4.
14 For crucial background: Schmitt, Der Hiiter der Verfassung, pp. 17-20; Schmitt, Die
Verfassungslehre (Berlin, 1928), pp. 125-57. Most fundamentally: Schmitt, Ober die drei
Arten des rechtswissenschaftlichen Denkens (Hamburg, 1934), pp. 58-60.

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 THE RULE OF LAW UNDER SIEGE 273

Schmitt's view of this problem had been a different one just a few y
before, when he had sided with Weimar conservatives hostile to noncl
forms of state intervention. He then denounced, for example, the Germa
popular 1926 call to socialize royal property as an act of 'revolut
violence', insisting that it constituted a decree or measure directed at a
lar person which the liberal tradition (rightly, he then argued) had de
legislative authorities the power to enact. Measures, as Locke and so m
others had insisted, were contrary to parliamentary government (at lea
hinted, during a situation of political normalcy) and instead belonged pr
to the realm of acts legitimately undertaken by the state during a pr
political crisis. Governmental acts against the Prussian princes would op
door to similarly arbitrary measures against particular interests or obje
specific news- paper, perhaps, or a vocal critic of the regime — and ther
us on what Frederick Hayek, who in some respects developed stri
nariillp»1 dronmpntc crimp» fiftp»p»n vp»iirc 1atf*r conn ominonciv Hp»crrihf»H ac thp

'road to serfdom'.15
Like Schmitt, Hayek makes the distinction between the individual measure
and general law the centrepiece of his legal theory. But while also arguing that
the welfare state and formal law are inconsistent and similarly attacking
contemporary 'pluralistic' legislatures for being 'colonized' by powerful social
and power blocs associated with the welfare-state project, Hayek suggests that
we can recapture nineteenth-century competitive capitalism and some type of
early liberal version of the relationship between state and society and save
classical general law. In the 1932 Legalitat und Legitimitat Schmitt draws very
different results from a similar constellation of assumptions. Insofar as Schmitt
questions Hayek's belief in the possibility of reconstructing a (romanticized)
early capitalist economy, his position is in some respects undoubtedly the more
realistic one; given its full-scale abandonment of the minimal achievements of
political liberalism, its consequences are far more heinous. Whereas Hayek's
valorization of the distinction between the individual command and general
norm culminates in a theory of so called economic 'libertarianism', it helps
Schmitt embrace fascism. If (1) the contemporary interventionist ('total') state
requires discarding general law (and, furthermore, there is no going back to an
early liberal state-society constellation which might allow us to regain it), and
(2), there are still good normative reasons for preserving a distinction between

15 Carl Schmitt, Unabhàngigkeit der Richter, Gleichheit vor dem Gesetz und Gewahrleis
tung des Privateigentums nach der Weimarer Verfassung (Berlin, 1926). F. Hayek, The
Road to Serfdom (London, 1976), esp. pp. 54-65; Hayek, Law, Legislation, and Liberty,
Vols. I—III (London, 1973). Hayek arguably acknowledges his debt to Schmitt in an obscure
yet revealing footnote on pp. 194-5 of Volume III where he notes that some facets of his
analysis were anticipated by 'the extraordinary German student of politics, Carl Schmitt'.
For an initial but inadequate comparison of Hayek and Schmitt: F.R. Cristi, 'Hayek and
Schmitt on the Rule of Law', Canadian Journal of Political Science, Vol. 17, No. 3 (1984).

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 274 W. SCHEUERMAN

general legislative norms and individual o

be promulgated by a central legislature), as
interventionist state can only take one
ship. As Schmitt openly tells us, 'the adm
in the praxis of "measures" ' — and with
and the emerging welfare state — 'is mo
ship" ' than the classical parliamentar
legislative bodies can only legitimately
they are incapable of grappling with the
ist state, to which dictatorial governmen
the liberal rale of law may have 'fit' an e
tionist state/society constellation, but th
contemporary politics.
While actually making an argument fo
answer to Weimar's crisis, Schmitt hence can seem to remain true to the
classical belief in the necessity of discriminating between legitimate general
and illegitimate individual legislative acts. While preparing the way for dicta
torial government, he can rely upon a partial appropriation of the arguments of
classical authors like Locke and Rousseau.
Despite his attempt to delineate the political sphere from that of morality in
'The Concept of the Political', Schmitt's analysis lacks none of the pathos
characteristic of early liberal defences of the general legal norm. If the aban
donment of general law represented for Locke a sinful attempt to flee from the
imperatives of God's laws, Schmitt now does his best to match Locke. In his
view, parliamentary government's abandonment of classical formal law, and
the widespread view that legitimate parliamentary action need not take a
classically general form, means that 'the way would be open to an absolutely
"neutral", value-free, quality-less, empty formalistic-functionalistic concep
tion of legality'.17 Without the minimal guarantee of justice provided by the
classical legal norm's general structure, and without any legitimate reason for
Γ,..'*!, ' *1, K*-.» Αmnbinn
IlUUlllUllllll^ JVlllv ituiAi 111 uiv luuvimiiij v/i puiiiuiiiviiwu

in the belief that its legal acts represent society's general

tary legality is reduced to the empty and indefensible notio
willy nilly, determine what is legitimate. Lacking this mo
on legislative action, its every act would have to be cons
in Schmitt's view, the legal order is thereby denied any way
from foe, or its real defenders from its opponents. Any m
and thus even those clearly opposed to the Weimar Cons
mately seize power and undertake any policies that they

16 Schmitt, Legalitat und Legit imitât, p. 87.

17 Ibid., p. 27.

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 THE RULE OF LAW UNDER SIEGE 275

however ridiculous, unjust or tyrannical they might be. In s

mentary government opts for general law and refuses to un
social legislation incompatible with it, or it has necessarily su
'emptiness' and is destined to self-destruct. The paradoxes
legality are thus twofold. Not only is the interventionist s
modern politics and (simultaneously) incompatible with parli
but parliamentarism's unavoidable abandonment of classical
the legal norm probably dooms it.
Schmitt then relies on Max Weber — a paradoxical yet non
defender of crucial elements of the traditional liberal rule of
out the broad outlines of such an alternative. Weber had tried
the Weimar Constitution would leave room for a powerful
outfitted with instruments allowing him to appeal above p
party institutions, both of which Weber thought most likely
the politically stultifying process of bureaucratization. Parti
would probably fail to produce the charismatic leadership a
to modern mass democratic politics, the importance of whic
of his rather limited faith in the rationality of popular decis
came to emphasize with a particular vengeance during his fi
In juxtaposing 'plebiscitary legitimacy' to parliamentary '
clearlv has this content in minH Sionifir-antlu Çnhmitt rartieaM-roo WolvrV

views here. Whereas for Weber the idea of a mass-based charismatic lea
stands uneasily alongside more traditional liberal conceptions of leg
Schmitt sheds Weber's tension-ridden constellation of its most defe
features.
Because the emergence of radically pluralistic politics and the concom
flhflnHnnmP.nf nf CtiltP 'cilhctanrp' in Wpimor oil an
σ J ' ~r*

and perhaps even a civil war, Schmitt co

should be outfitted with unprecedented
executive measures of a far-reaching poli
does Schmitt think that Hindenburg s
powers that make the regime's execut
everyday politics and in the crucial sphe
ing, but he can also legitimately overrule c
furbishes the Weimar executive with the

18

For discussions of this theme in Weber's final writings and on his attempt to shape the
Weimar Constitution: Wolfgang Mommsen, Max Weber and German Politics (Chicago,
1984), pp. 332-414, and especially Mommsen's excellent discussion of the relationship
between Schmitt's Legalitat und Legitimitat and Weber's typology of forms of legitimacy,
pp. 448-53. Also: David Beetham, Max Weber and the Theory of Modern Politics (Oxford,
1985), pp. 215-49.

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 276 W. SCHEUERMAN

tutional revisions.19 Classical general lega

less') executive and administrative decrees
acy, and thus one of the centrepieces of th
to be surrendered. Only unprecedented
claims, might allow Hindenburg to becom
desperately needed by substanceless Weim
above the political system's antagonistic s
paralyzed legislative bodies overwhelmed
dent is directly elected by the entire p
political unity of the German citizenry, an
original vision of a 'homogeneous'/o/k, as
pluralist party structure, colonized and d

19
Schmitt writes that the Federal President should be allowed to rely upon 'measures' to
break through (durchbrechen) 'constitutional norms' because not every facet of the Weimar
Constitution is 'more important' than 'the protection of the Constitution itself'. Carl
Schmitt, 'Die staatsrechtliche Bedeutung der Notverordnung insbesondere ihre
Rechtsgiiltigkeit' (1931), in Schmitt, Verfassungsrechtliche Aufsàtze (Berlin, 1973),
pp. 244—5. Of course, the question then is what makes up the 'Constitution itself' (above
and beyond specific constitutional norms). In my reading, Schmitt's interpretation of this
'substance' is overtly authoritarian. Crucially, Legalitàt und Legitimitàt concludes by
claiming that the basic 'decision' that has to be made in Germany either has to be for the
'substantial contents and forces of the German folk' or for the 'continuation' (Weiter
fiihrung) of 'functionalistic value-neutrality'. Schmitt associates the former with an un
specified 'substantial kernel' of the Weimar Constitution's section on 'Basic Rights and
Basic Duties'; the latter refers in part to the basic procedures of (liberal) parliamentary
rulemaking. Schmitt explicitly dubs his own 'decision' a 'dictatorship'. Schmitt, Legalitàt
und Legitimitàt, pp. 87, 96-8. The two most influential Schmitt scholars in the English
speaking world, George Schwab and Joseph Bendersky, trivialize too much of Schmitt's
argumentation from this period. Schmitt radicalized some facets of the Weimar Constitution
in a manner alien to the Constitution's underlying spirit in order to replace the genuinely
democratic features of the Republic with a form of mass-based dictatorship. 'Saving'
Weimar for him meant abandoning a complex and multi-sided but basically liberal-demo
cratic constitutional order with an executive-centred regime that would rely on easily
manipulable forms of plebiscitary decisionmaking. Schmitt ends up endorsing a revolution
ary ('sovereign') dictatorship and not simply a temporary ('commissarial') one. True,
Schmitt seems to have hoped that the reactionary clique centred around General Schleicher
would succeed in warding off the Nazi threat during the early '30s, and Schmitt certainly
was not an active Nazi before 1933 (he joined the party, with Martin Heidegger, on 1 May
1933). But Bendersky's attempt to transform Schleicher and the other authoritarian élites
who eventually handed over power to the Nazis into something close to principled anti-fas
cists badly obscures the role played by many right-wing authoritarians in preparing the way
for the Nazi takeover. See; Joseph Bendersky, Carl Schmitt: Theorist for the Reich
(Princeton, 1982); George Schwab, The Challenge of the Exception (Berlin, 1970). Also,
fora critique of their work: Bill Scheuerman, 'Carl Schmitt and the Nazis', German Politics
and Society, No. 23 (Summer 1991). On Schmitt's ally Schleicher: Gotthard Jasper, Die
gescheiterte Zahmung. Wege zur Machtergreifung Hitlers (Frankfurt, 1986), pp. 88-126.

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 THE RULE OF LAW UNDER SIEGE 277

liberal rule of law that helps keep it afloat.20 The ('poli

plebiscitary legitimacy, which is intimated in some section
Constitution, should replace ('normativistic') liberal concept
and the legacy of the complex and multifaceted liberal-dem
Constitution should be inherited by some form of mass-ba
tred regime.
How will this regime legitimize itself after having abandon
conceptions of parliamentary legality and the rule of law? A
charisma, or perhaps 'the authoritarian residues of a predem
pertorm tins Junction."

II

In a set of pathbreaking essays for the journal Die Gesellschafl in 1932 and
1933, the twenty-seven year old Social Democrat (and future associate of the
neo-Marxist Institute for Social Research) Otto Kirchheimer argued that
Schmitt's reasoning had led him to endorse a thinly-veiled 'constitutional
revolution' aimed at jettisoning parliamentary government and the rule of law
for a disturbing brand of 'postdemocratic caesarism'.22 Although at first glance
simply one version of a widely expressed demand in crisis-ridden Weimar for
a presidential regime, Schmitt's argument was actually far more radical. Quite
perceptively, Kirchheimer identified many of the sources of this development
in the peculiarities of Schmitt's theorizing about the rule-of-law ideal:
Schmitt's apparent demonstration of the irrelevance of the modern rule-of-law
ideal for the exigencies of the contemporary administrative state had contrib
uted to Schmitt's own option for an authoritarian alternative to the Weimar
Republic and its highly controversial attempt to institutionalize the rudiments
of the welfare state. While noting that Schmitt continued to describe his
proposed plebiscitary alternative to Weimar as 'democratic' in character, Kirch
heimer rightly reminded his audience in 1932 that Schmitt had expressly argued
that 'the people can only say yes or no, it cannot counsel, deliberate, or discuss.

20 'Homogeneity' is central to Schmitt's anti-universalistic, illiberal concept of 'democ

racy': see Carl Schmitt, The Crisis of Parliamentary Government (Cambridge, Mass.,
1985), pp. 8-15; Schmitt, Die Verfassungslehre, pp. 226-38.
21
Schmitt, Legalitat und Legitimitdt, p. 94.
22
Otto Kirchheimer, 'Constitutional Reaction in 1932', reprinted in: Kirchheimer, Politics,
Law, and Social Change (New York, 1969), pp. 77-8, 80. A number of other essays by
Kirchheimer from this period have been reprinted in Social Democracy and the Rule of
Law, ed. Keith Tribe (London, 1987). Kirchheimer's relationship to Schmitt is a complex
one. Kirchheimer completed his doctoral dissertation under Schmitt's guidance at the
University of Bonn in 1928 and even went on to borrow substantially from the core of
Schmitt's theory in his earliest writings, but beginning about 1930 there is already evidence
of a growing distance from Schmitt.

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 278 W. SCHEUERMAN

It cannot govern or administer, nor can it

its 'yes' the draft norms presented to it. Nor
only answer by 'yes' or 'no' a question put
democratic decision making to nothing
which the people, characterized as a ma
authority whose existence is assumed. Str
authority are unknown'.24 The Weimar Co
during the relatively hopeful days of 1918
'folk', whose main function would be to
orchestrated ceremonial acclamation.
In 'Constitutional Reaction in 1932' Kirchheimer makes a crucial observa
tion that can help serve as a somewhat more systematic starting point for
formulating a response to Schmitt's attack on the rule of law. As Kirchheimer
recounts, Schmitt 'tries with great emphasis to make generality a necessary
characteristic of every parliamentary law, concluding from the erosion of this
corollary of parliamentary rule that parliament must give way to the dictator
ship of the administrative state'. But 'in reality it is by no means proved that
universality is a necessary attribute of the law or that the bureaucracy is in a
better position to legislate in the present situation than parliament'. Conceiv
ably, an authoritarian interventionist state ruled by a mass-based executive and
ο cot nf KurAoncrotip qIIipc 'port romilato tVnrtrtc factor mnro lzal oirir\cr*r*nirOll λ ι

and without that minimum of protection for the affected parties wh

terizes parliamentary rule', but it is by no means clear that anyone s
to trade-off basic political protections for bureaucratic 'efficien
heimer even suggests that bourgeois strata flocking to the ranks of the
cannot possibly want this.25 More fundamentally, why should
assume, as Schmitt seems to, that the legal order's universality or
today should be primarily located in the (general) semantic structure
norm, and not instead in its 'general ' (that is, democratic, broadly pa
origins'? Could the 'generality' of contemporary democratic law
mately take a different form than that suggested by early (inadequa
cratic, privatistic) liberalism?26 Might there not be good reasons for
the idea of general law?

23 Cited in Kirchheimer, 'Constitutional Reaction in 1932', p. 78.

24 Ibid. We should recall Hannah Arendt's 'painful'realization that totalitarian

always preceded by mass movements and that they command and rest upon m
up to the end'. H. Arendt, The Origins of Totalitarianism (New York, 1951), p
25 Kirchheimer, 'Constitutional Reaction in 1932', p. 84.

26 This aspect of Kirchheimer's argument is first raised in two 1930 publica

heimer, 'Eigentumsgarantie in Reichsverfassung und Rechtsprechung', in Ki
Funktionen des Stoats und der Verfassung (Frankfurt, 1972), p. 20. Also: Kirch
Limits of Expropriation, reprinted in Social Democracy and the Rule of Law

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 THE RULE OF LAW UNDER SIEGE 279

More recently, Jiirgen Habermas has raised similar ques

against Weberian and neo-Weberian views of law which in
tend to place too much emphasis on the semantic clari
structure of contemporary law for determining what is sp
about it; perhaps we can rely upon Habermas to develo
heimer's tentative criticisms. More clearly than Kirchheim
that Enlightenment liberalism too often confused law's se
(that is, the demand that the legal norm not refer to individu
with a broader and more fundamental system of ('general
macy from which modern law draws its normative energie
ness stems primarily from the (universal) debate and exchan
and not its semantic form per se, and the error of those who
is that they often obscure the broader democratic process's
salism' of (general) participatory and communicative right
essential to 'types of deliberation and decisionmaking that
consideration all relevant aspects of an issue and all interest
This is not the place to examine the virtues of a reconstructi
ideal of general law along such lines.28 For our purposes her
that such a reworking of the traditional idea of general la
Schmitt — and that this contributes decisively to the extrem
ï«/*vo. aviuiuu ia uuaca^cu wiui <uucuuiu.iig a vision or democracy
characterized precisely by the fact that it is to be freed from even the most
meagre spectre of universalistic, 'normativistic' liberalism (and, in particular,
its defence of the idea of the formal equality of all persons). In his eyes,
democracy is an existential, 'political' category radically at odds with Enlight
enment liberalism and the ideal of the rule of law which he takes to be its
mainstay.29 A restatement of the idea of legal generality along the lines implied
by Kirchheimer and Habermas thus would amount from Schmitt's perspective
to little more than yet another attempt to subdue the 'non-normative' dynamics
of friend/foe politics with inappropriate, moralistic criteria whose internal logic

For a similar criticism of Schmitt's concept of the legal norm from the same period:
Hermann Heller, 'Der Begriff des Gesetzes in der Reichsverfassung' ( 1928), in Gesammelte
Werke, Vol. II (Leiden, 1971).
27
Jiirgen Habermas, 'The Tanner Lectures', in: The Tanner Lectures on Human Values,
Vol. VIII (1988), ed. S. McMurrin (Salt Lake City, 1988), pp. 246-9,275.1 should note that
Habermas is not trying to collapse the idea of the rule of law into a particular conception of
democracy. Rather, he thinks that we need to restate the rule-of-law ideal in a manner which
places somewhat less weight on the semantic generality of the legal norm.
28
For an attempt to do so: Bill Scheuerman, 'Neumann v. Habermas: The Frankfurt School
and the Case of the Rule of Law', Praxis International, Vol. 13, No. 1 (1993).
29

This comes out in many texts, but especially in Schmitt, The Crisis of Parliamentary
Government and Schmitt, Die Verfassungslehre.

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280 W. SCHEUERMAN

is altogether distinct from that of th

generality of law which placed greate
cratic origins would be akin to trying
words, two fundamentally distinct ele
Instead of reinterpreting the rule-of
somewhat less weight to the importan
thus allow us to understand why t
administrative regulatory state, has h
take the proliferation of non-general
century as nothing more than evidenc
of law and its chief progenitor, univer
cannot acknowledge the possibility tha
regulation, like those widespread in th
actually buttress the broader 'generali
some modes of deformalized law unde
checks on the process of democratic w
mas' words, to the universality of 'ty
that take equally into consideration
interests involved'. If Schmitt had be
have seen that the ongoing process ot
highly complex and ambivalent transf
and hardly the one-sided, inexorable V
Most significantly, he might then hav
troublesome conclusion that the mode
irrelevant to contemporary politics —
liberated from its shackles might prov

Bill Scheuerman UNIVERSITY OF PITTSBURGH

30 For Schmitt's radical delineation of the political from th

Schmitt, The Concept of the Political. There Schmitt writes th
has nothing to do with 'normative antitheses', and that
abstractions nor normative ideals, but with inherent reality' (p

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