Law as Politics: Carl Schmitt’s Critique of Liberalism

333 Pages·1998·22.051 MB·English

by  David Dyzenhaus

LAW as POLITICS

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Carl Schmitt's
Critique of Liberalism
Edited by David Dyzenhaus
Foreword by Ronald Beiner
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DUKE UNIVERSITY PRESS
...J DURHAM AND LONDON
© 1998 DUKE UNIVERSITY PRESS
All rights reserved I Printed in the United States of
America on acid-free paper @) I Typeset in Trump
Mediaeval by Tseng Information Systems, Inc. I
Library of Congress Cataloging-in-Publication Data
appear on the last printed page of this book.
Grateful acknowledgment is made for permis-
sion to reprint the following material in this
volume: I Ernst-Wolfgang Bockenforde, "Der
Begriff des Politischen als Schliissel zum staats
rechtlichen Werk Carl Schmitts," in Ernst-Wolfgang
Bockenforde, Recht; Staat; Freiheit: Studien zur
Rechtsphilosophie, Staatstheorie und Verfassungs
geschichte. © Suhrkamp Verlag Frankfurt am Main
199I. I William E. Scheuerman, "Revolutions and
Constitutions: Hannah Arendt's Challenge to Carl
Schmitt." © Rowen & Littlefield Publishers, Inc.,
Lanham, Md., 1998. I Portions of this volume were
previously published in The Canadian Journal of
Law and Jurisprudence, vol. IO, no. I 119971.
II) Foreword Ronald Beiner vii
I 1 1
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Acknowledgments xi
LLI 1
I
Z Introduction: Why Carl Schmitt? David Dyzenhaus II
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PART I POLITICAL THEORY AND LAW
Carl Schmitt's Critique of Liberalism: Systematic Recon
struction and Countercriticism Heiner Bielefeldt 23
1 1
The Concept of the Political: A Key to Understanding Carl
Schmitt's Constitutional Theory Ernst-Wolfgang
1
Bockenforde 37
1
From Legitimacy to Dictatorship-and Back Again: Leo
Strauss's Critique of the Anti-Liberalism of Carl Schmitt
1
Robert Howse 56
1
Hostis Not Inimicus: Toward a Theory of the Public in the
Work of Carl Schmitt Ellen Kennedy 192
1
Pluralism and the Crisis of Parliamentary Democracy
1
Dominique Leydet 109
1
Liberalism as a "Metaphysical System": The Methodological
Structure of Carl Schmitt's Critique of Political Rationalism
1R einhard Mehring 1131
Carl Schmitt and the Paradox of Liberal Democracy
1
Chantal Mouffe 1159
PART II LECAL THEORY AND POLITICS
Carl Schmitt on Sovereignty and Constituent Power Renato
1
Cristi 1 179
vi Contents
The 1933 "Break" in Carl Schmitt's Theory I Ingeborg Maus
I 196
The Dilemmas of Dictatorship: Carl Schmi~t and Constitu
tional Emergency Powers I John P. McCormick I 217
Revolutions and Constitutions: Hannah Arendt's Challenge
to Carl Schmitt I William E. Scheuerman 1252
Carl Schmitt's Internal Critique of Liberal Constitutional
ism: Verfassungslehre as a Response to the Weimar State
Crisis I Jeffrey Seitzer I 281
Notes on Contributors I 313
Index 1315
Foreword
Ronald Beiner
It should come as no surprise that there are radically conflicting con
ceptions of what it is to practice political philosophy; and the clash
between these opposed interpretations of the praxis of theorizing is not
only inevitable but also desirable. According to one dominant concep
tion, of which Rawls's Political Liberalism is an exemplary instance,
we start with an implicit consensus on what we share as members of a
liberal political order, and the job of the philosopher is to articulate the
basis of this consensus and raise it to theoretical explicitness. According
to a different and more radical understanding of political philosophy,
this liberal consensus, if such exists, counts for nothing; rather, the phi
losopher's responsibility is to theorize political order from the ground
up, even if it ends up calling into fundamental question the opinions
and beliefs that currently sustain social life within a liberal democratic
horizon. From this alternative point of view, political philosophy prac
ticed in a Rawlsian mode is a form of theoretical cowardice, perhaps
even a betrayal of what properly defines philosophical duty.
There is no question that Carl Schmitt embodies the latter conception
of theory in its most uncompromising version. As David Dyzenhaus ex
presses with beautiful clarity in his introductory chapter, Schmitt raises
questions about the ultimate grounding of political and legal order that
have dogged modern philosophy and jurisprudence since Hobbes first
came to awareness of the obsolescence of pre-modern justifications of
political authority. In pursuing this radical inquiry, Schmitt challenges,
root-and-branch, all the notions that "we" modern liberals take to be
morally authoritative-the meaning of the rule of law, the legitimacy of
parliamentary government, the superiority of reason and rational delib
eration over sheer will, the reasonableness of political secularity. None
viii Foreword
of these notions carries any obvious authority for Schmitt; all of them
are put to the test.
I don't think anyone can plausibly argue that contemporary liberal
democracies are subject to the kind of thoroughgoing crisis of political
order that Schmitt encountered in the Weimar Germany of the 1920S
and that provoked him, throughout his work, to interrogate liberalism
at the level of first principles. On the other hand, neither does it seem
that the foundations of liberal politics are so secure, theoretically or
politically, that reflection at the level of first principles has been ren
dered pointless. One can identify both universalistic (philosophical) and
particularistic (political) reasons for pursuing the debate with liberalism
at the bracing level at which it is pursued by Schmitt. First, as human
beings we of course have a universal interest in knowing whether the
social order we happen to inhabit actually possesses the kind of norma
tive authority that it claims for itself. The historically established name
for pursuit of this human interest is philosophy. Second, as citizens of
a liberal regime, we can only vindicate the liberal idea that intellec
tual openness and freedom of inquiry strengthen rather than subvert a
political order by entering into dialogue with those forms of thought
that are furthest from the liberal horizon.
If political philosophy involves not only reconfirming the reason
ableness of the beliefs to which we are already committed but also
challenging those beliefs (Socratically) from a position well outside the
boundaries of liberalism, then we can derive immense instruction from
the very fine essays that Dyzenhaus has assembled in this volume. See
ing what our liberal world looks like from an illiberal point of view is
not only indispensable for intellectual life within a liberal society; it
may even do liberal politics some good. As Chantal Mouffe helpfully
reminds us at the beginning of her essay, it's no accident that Rawls
refers to Schmitt's antiliberalism on the last page of his introduction
to the paperback edition of Political Liberalism, in the context of re
stating why the constitutional stability of the liberal polity continues
to require liberal political philosophy.
Is a dialogue between Rawls and Schmitt possible? If, as liberals, we
know in advance that Rawls must triumph in such a debate, what is the
point of pursuing this intellectual contest in the first place? Liberal aca
demics and democratic theorists certainly aren't immersing themselves
in the study of Schmitt because they welcome the possibility that he will
persuade them to jettison their liberal and democratic commitments.
Foreword ix
Rather, they study Schmitt because they know that, philosophically,
liberal principles have not (yet) established an unchallengeable claim to
normative authority, and because only by engaging in dialogue with a
steadfast enemy of liberal dialogue like Schmitt can they vindicate both
liberalism and the endless dialogue that is political philosophy.