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ARTICLES "NOW THE MACHINE RUNS ITSELF": CARL

SCHMITT ON HOBBES AND KELSEN


David Dyzenhaus*
INTRODUCTION

Carl Schmitt claimed that the fundamental distinction of politics is the distinction between friend and enemy.' That distinction, he said, has to be put on a substantive basis, which, in the era of the nation state, he supposed must amount to an idea of the homogeneity of the people. Since liberal democracy is opposed to this kind of substance, Schmitt argued that liberalism cannot make the distinction between friend and enemy. It thus cannot defend itself against its enemies. It is no wonder that he remains the leading theorist of fascism. Schmitt's work has recently attracted a great deal of attention and is likely to attract more. At a time when authoritarian nationalism is resurgent this is not surprising. What is surprising is that some of Schmitt's current followers advocate his view on the basis that Schmitt's concept of the state and politics will help us to resist the dangers which plague liberals and democrats. Their claim is that Schmitt, by alerting us to the problems of liberal democracy, teaches us how to save it from its enemies.
* Associate Professor of Law and Philosophy, University of Toronto. This article is part of a larger work in progress: Truth's Revenge-Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar. For comments and discussion, I thank Heiner Bielefeldt, Cheryl Misak, the members of my philosophy graduate seminar on Schmitt and Hobbes, and faculty who attended my papers on these topics at the Benjamin N. Cardozo School of Law, the Philosophy Department of Wilfred Laurier University, and the Political Science Department of Yale University. 1 My account of Schmitt relies principally on the following works: CARL SCHMITT, THE CONCEPT OF THE POLITICAL (George Schwab trans., Rutgers Univ. Press 1976) (1932);
CARL SCHMITT, THE CRISIS OF PARLIAMENTARY DEMOCRACY

(Ellen Kennedy trans.,


SYMBOLS

MIT Press 1988) (1923);


THOMAS HOBBES:

CARL SCHMITr, DER LEVIATHAN IN DER STAATSLEHRE DES


EINES POLITISCHEN

SINN UND FEHLSCHLAG

(Hohenheim

Verlag 1982) (1938) [hereinafter

DER LEVIATHAN]; CARL SCHMITT, POLmCAL THEOL-

OGY: FOUR CHAPTERS ON THE CONCEPT OF SOVEREIGNTY (George Schwab trans., MIT Press 1985) (1922) [hereinafter POLITICAL THEOLOGY]; CARL SCHMITT, OBER DIE DREI
ARTEN DES RECHTSWISSENSCHAFTLICHEN DENKENS

(1934) [hereinafter

DREI ARTEN];

CARL SCHMITT, VERFASSUNGSLEHRE

(7th ed. 1989). References will in general be given

only for direct quotes. In Schmitt's case, they will be given to the English editions cited here, although the translations are mine.

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I fully agree with those recent responses to Schmitt observing that a project so driven by the urge to destroy liberal democracy is hardly likely to be harnessed in its defense. Nevertheless, I think that much can be learned from Schmitt once we understand why he would not have thought it possible that liberalism could adjust itself in light of his critique. This paper addresses these issues by exploring a paradox latent in Schmitt's work. Schmitt thought of himself as the twentieth century Hobbesian. He ended his commentary on Hobbes's Leviathan2 with a message across the centuries: "You shall no longer teach in vain, Thomas Hobbes!"' 3 Schmitt also devoted himself to exposing what he considered to be the inherent contradictions of liberal legalism, in particular the contradiction he thought he had uncovered between liberal legalism and democracy. Schmitt found Hans Kelsen to be the theorist par excellence of the bourgeois Rechtsstaat.4 To Schmitt, Kelsen's legal positivism and accompanying democratic theory were the exemplar of contradictory liberal legalism. But in Schmitt's commentary on Leviathan, he seemed to claim that the Rechtsstaat is the logical terminus for Hobbes:
It is the mark of ... a rational state power that above all it

accepts every political danger and in this sense accepts the responsibility for the protection and security of all subjects of the state. If the protection ceases, so the state itself ceases to be and with it any duty of obedience. Then the individual wins back his "natural" freedom. The "relation of protection and obedience" is the touchstone of Hobbes's conception of the state. It fits well 5 with the concepts and ideals of the bourgeois Rechtsstaat. Thus, the paradox is as follows: Schmitt believes that by exposing contradictions in Kelsen's doctrine of legal positivism, he simultaneously exposes the contradictory nature of liberalism. Throughout this process he appeals, perhaps above all, to the authority of Thomas Hobbes; yet it appears that he regards the train of thought set in motion by Hobbes's publication of Leviathan as not only
2 THOMAS HOBBES, LEVIATHAN 3 DER LEVIATHAN,

(C.B. MacPherson ed., Penguin Books 1986) (1651). supra note 1, at 132 (my translation). 4 For Kelsen I rely here principally on HANS KELSEN, DER SOZIOLOGISCHE UND DER

JURISTISCHE STAATSBEGRIFF: KRITISCHE UNTERSUCHUNG DES VERHALTNISSES VON STAAT UND RECHT (Scientia Verlag 1981) (1928) (with emphasis on ch. 12); HANS KELSEN, REINE RECHTSLEHRE (1934), reprinted in HANS KELSEN, INTRODUCrION TO THE PROBLEMS OF LEGAL THEORY (Bonnie L. Paulson & Stanley L. Paulson trans., 1992) [hereinafter INTRODucTION]; HANS KELSEN, VOM WESEN UND WERT DER DEMOKRATIE

(Scientia Verlag 1981) (1929). 5 DER LEVIATHAN, supra note 1, at 113-14 (my translation).

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CARL SCHMITT ON HOBBES AND KELSEN

having actually ended in the establishment of the Rechtsstaat, but as having had to end there. I will argue here that, once the elements of this puzzle are unravelled, we will have a much better understanding not only of Schmitt's thought, but of his critique of liberalism as well. We will then be in a position to assess whether Schmitt speaks to contemporary debates in political and legal theory.
SCHMITT's UNDERSTANDING OF LIBERALISM

Schmitt considers all political ideologies and doctrines to be metaphysical in the sense that they must ultimately appeal to something beyond actually existing practices. It is in this sense that he sees the conflict between ideologies as one between political theologies. Ideologies, even atheistic ones, assume the truth of their own vision of politics, and that is not a matter that can be adjudicated on the terrain of politics. Liberalism, in his view, is a metaphysical system that, because of its allegiance to rationalism, not only denies its metaphysical foundation, but institutionalizes that denial. This denial, he argues, will prove to be liberalism's inevitable downfall. Schmitt understands liberalism as the ideological manifestation of the bourgeois allegiance to the individualistic values of liberty and private property. In order to realize those values, liberalism had to make a pact with public power against the absolutist monarch who always threatens those values. Hence liberalism made a pact with democracy and sought successfully to channel democracy into parliamentarianism. Parliamentarianism is a system which suits liberalism's purposes for several reasons. First, it leads to the eventual subordination of the monarch. Second, it establishes the normative order that provides the framework in which the requirements of a market society, such as security and predictability, are met. Third, through parliamentarianism liberalism can claim, by an appeal to representation, democratic legitimacy. Finally, parliamentarianism is itself balanced by the division of powers; for liberals the division is identical to constitutionality and ostensibly an effective constraint on public power. However, by using parliament as the public means of establishing itself, liberalism, instead of achieving its individualistic aims, subjects the individual to the forces of civil society that can potentially exploit the liberties which liberalism originally guaranteed in its bid for power. Liberalism must make a transition from private

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to public in order to privilege the private, but it cannot do so without subverting itself; it cannot publicly manifest itself without privatizing the public sphere and thus rendering the public sphere prey to legions of private interest groups.6 For the most part, Schmitt describes this process of privatization as a logically necessary one following from the most basic liberal assumption of universal individual equality. Nevertheless, it is also important to bear in mind that he also sometimes describes this process as a deliberate deception: Still, one should not fail to recognize that there is a kind of democracy, namely parliamentary democracy, which has a plain interest in having certain antitheses remain latent so that they do not come to decision. Here the process of majority determination can be a suitable and desirable method to avoid and suspend political decisions. It can even be politically more shrewd not to decide oneself and to use the so-called majority decision in this way. Then the proposition "the majority decides" would belong to the arcane reaches of a particular political system, whose treatment goes beyond the framework of a "Constitutional Theory."7
6

Here are two representative quotes, both from the .Verfassungslehre.

For a consistent following through of election and vote by secret ballot leads to the metamorphosis of the citizen as the specific democratic, that is, political, figure, into a private individual, who renounces his voice and expresses a private opinion from within the sphere of the private.... Secret ballots mean that the voting citizen is isolated in the decisive moment. The assembly of the people as a presence and any acclamation is in this way made impossible, and the bond between the assembled people and the vote is torn asunder. The people no longer votes and elects as a people. In contemporary democracy, the methods of elections and plebiscites in no way contain the process of a genuine people's election or plebiscite, but organizes a process of individual voting by means of the addition of individual voices. VERFASSUNGSLEHRE, supra note 1, at 244-45 (my translation). As soon as freedom of assembly leads to coalitions, that is, to associations, which fight each other and which oppose each other with specific social instruments of power like the strike or lockout, so the point of the political is reached and consequently an individual fundamental or liberty right is no longer in existence. The right of association, the right to strike, and the right to shutdown, are not liberty rights in accordance with the meaning of the liberal Rechtsstaat. When a social group achieves such potential for struggle, whether through express constitutional dispensation or by means of a practice of tacit tolerance, so the fundamental presupposition of the liberal Rechtsstaat has lapsed. And "liberty" no longer means the in-principle unlimited scope of activity of the individual, but the unlimited exploitation of social power by social organizations. Id. at 165-66 (my translation). 7 Id. at 282 (my translation).

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CARL SCHMITT ON HOBBES AND KELSEN

Schmitt talks often of liberalism's attempt to avoid the people and the sovereign, and thus the fundamental political decisions which he considers the very substance of politics. He also claims that every legal order is in some sense a concrete order in which some individuals rule over and subordinate others. As Schmitt never fails to point out, by definition it follows that liberalism too is a concrete order where one group, the bourgeoisie, attempts to rule over all others. The peculiarity of liberalism as a political doctrine resides, then, in its concealment, conscious or not, of its politics-a concealment which must, in Schmitt's opinion, empty politics of content and thus undermine liberalism. Can Schmitt say both things of liberalism? On the one hand, he claims that liberalism provides a cloak for a power grab by private interest groups, and thus that their politics are the real politics of liberalism. On the other hand, he asserts that liberalism has no politics at all. It is important to see here that in Schmitt's view this is not a contradiction in his critique, but the contradiction which his critique exposes. It is a contradiction which pervades the doctrine to reside at its deepest level because liberalism's rationalist metaphysics is antimetaphysical. The contradiction is manifested on the surface in the apolitical or even antipolitical nature of liberal politics, exemplified in its legal order. Liberalism creates a society which desperately requires a sovereign decision but seeks at every point to postpone or prevent such a decision from being made. Schmitt found the passage from rationality to contradiction most starkly illustrated in the transition from Hobbes's authoritarian positivism to Kelsen's liberal legal positivism.
ScHMI-rr ON HOBBES

As do Hobbes and Kelsen, Schmitt believes that traditional modes of justifying political authority are no longer available.' All three think that the disappearance of these modes means that we must accept the truth of relativism. Thus Schmitt, regardless of his own personal religious views, asserts that God is dead in the sense that different gods (including atheistic ideologies such as liberalism, fascism, and Marxism) now compete for our attention.
8 It might be more accurate from Schmitt's perspective to say that there are no traditional modes of justifying political authority since the requirement of justification arises only when what had hitherto been taken for granted is thrown into question. In other words, strictly speaking, the problem has to do with the crumbling of tradition rather than the unavailability of traditional justifications.

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Where he differs from Hobbes and Kelsen is in the conclusion that he believes follows from the fact that we live in a relativist age. Hobbes and Kelsen try to provide a rational argument for their methods of justifying political authority in a relativist age. Liberalism offers an argument that is doubly rational in that it seeks to institutionalize its particular solution in the public order. Liberalism both appeals to individual rationality and structures its political institutions on the very model of individual rationality to which it appeals. In contrast, Hobbes builds his theory of public order on an appeal to individual rationality, but then seeks to preclude individual rationality from any significant place in sustaining and recreating public order. To adopt a metaphor from Wittgenstein, Hobbes climbs a rational ladder to reach his solution, but, once he has reached the top, he kicks the ladder away. Schmitt believes that he can explain how Hobbes's logical terminus is Kelsen's liberal legal positivism in terms of Hobbes's inability to kick the ladder away. Schmitt thinks that rationalism perforce undermines political authority. The idea of a rational public order is for him a contradiction in terms, evinced by the fact that liberalism inevitably subverts itself. He also thinks that Hobbes's absolutist or dictatorial solution is on the right track, but is necessarily undermined by its rational basis because that basis will eventually assert itself in the political superstructure. Thus, for Schmitt, the solution must be irrational in origin-a dictatorship which claims infallibility on the basis of a myth. In Leviathan, Hobbes sets forth three main theses about law: (1) authority, and not truth, makes law; (2) legal subjects must take actually existing law as if it were a true interpretation of the laws of nature and, therefore, as morally binding; and (3) the supreme lawgiver is the sovereign-an entity or person that has ultimate legal authority yet stands outside of the law. 9 These theses arise from Hobbes's fears about the state of nature. Since we cannot agree about truth in the state of nature, we need authority of a very particular kind-an authority whose desires are expressed in the form of commands rather than counsel, and whom we obey not because of our evaluation of the content of his commands, but because it is commanded. To use H.L.A. Hart's 0 phrase, our reason for obedience is "content-independent." 1
9 See
10 HOBBES,

supra note 2, at ch. 26.

H.L.A.

HART, ESSAYS ON BENTHAM: STUDIES IN JURISPRUDENCE AND POLITICAL

THEORY

254 (1982).

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CARL SCHMITT ON HOBBES AND KELSEN

It is crucial to see that in order for the system of commands (the legal order) to be capable of supplying content-independent reasons for action to legal subjects, the actual content of the commands must be identifiable or determinable in a very particular way. Law must take the right form if it is to be effective. Consider a standard example: the legislature decrees "no cruel and unusual punishment" and a court must determine whether the legislature intended to include execution in that category. If the interpretative tests mandated by the legal order in fact supply an answer to the question, then the law on this issue has the correct, or positive form. The law already supplies the answer and the judge's role is limited'to simple application.' However, if there is no such answer, then, by definition, there is no law. The judges must decide whether execution should fall within the scope of cruel and unusual punishment. They will then engage in evaluative arguments as to what the law should be and can no longer be understood as taking the sovereign's command as a content-independent reason for action. Thus, in order for a command to function as its logical formal structure requires, it must have an identifiable content which does not require its subjects to engage in evaluative arguments to determine what the content should be. According to Hobbes's model, when judges engage in evaluative arguments about what the law should be, although they are then acting as mini-sovereigns (or interpreters of the laws of nature), they are still subject to the sovereign's general command authorizing such activity. 1 Furthermore, once these judges have made definitive pronouncements, legal subjects are-under the same duty to obey the judge-made law as they would have been had the legislature made its intentions clear in the first place. Hobbes was committed to believing that the fewer such cases the better. With regard to legal subjects, the more such cases exist, the greater the uncertainty in which the subjects live until judges or the sovereign clear up the uncertainty. Nonetheless, it is preferable that judges should, in so far as possible, merely execute the will of the sovereign rather than act as mini-sovereigns. Hobbes therefore holds that law must have a particular form if it is to fulfill the function of providing the framework of a stable
11 This command can be express or silent-it is silent when the sovereign simply refrains from overruling judicial decisions. See HOBBES, supra note 2, at ch. 26.

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political order. There must be an intimate and highly political relationship between form and content. Law's content must be determinable and identifiable by factual tests which do not involve controversial moral-evaluative arguments. Schmitt regards the argument which links form and substance favorably. He found it significant that Hobbes felt compelled to make it despite the fact that the most basic unit in Hobbes's theory is the atomistic individual. For Hobbes, the individual, whose instrumental reasoning power is the cause of the problems of the state of nature, is also someone to whom he appeals in order to initiate his rational argument, even though he ultimately reaches an authoritarian solution. In order to reach this solution, Hobbes appeals to the one end on which he believes all individuals can agree-that self-preservation is the ultimate good. Schmitt thinks that the solution is compelling, but that it does not need the rational argument to be reached. In his view, authoritarianism is just the obvious solution once traditional modes of legitimizing political authority are no longer available. More accurately, Schmitt contends that Hobbes's argument robs the authoritarian solution of the kind of content or "substance" that can make it work. Further, Schmitt maintains that, without that substance, political order and law will become self-subverting. By relying on the rational argument, Hobbes sows the seeds of the Leviathan's destruction. Put differently, this rational argument 12 leads naturally to Kelsen's liberal restatement of legal positivism. In Schmitt's opinion, Hobbes saw the need for a myth that would lend the positive legal order the right kind of substance. That was the reason Hobbes called his great work on political philosophy "Leviathan" and it was why he, in his second of the three references to the Leviathan, described the sea monster as a great man. But his third reference is to the Leviathan as a great machine. The product of his rationalist impulse was the destruction of the state's soul which rendered the state insubstantial and thus open to enemy capture.13 Despite Hobbes's outward denial of any room for individual rights against the state, Schmitt finds three related points in Hobbes's construction of the state where individualism manifests itself in a way that will eventually bring down the structure. Two will be addressed here and the third in the final section of this Article.
12 13

See supra text accompanying note 5. For these references, see, respectively,

HOBBES,

supra note 2, at 81, 227, 362.

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CARL SCHMITT ON-HOBBES AND KELSEN

In Schmitt's view, the first manifestation is in Hobbes's emphasis on state structures that facilitate individual calculation of the consequences of action. This rational state apparatus is one which functions mechanically so as to ensure the rule of a framework of stable laws rather than the personalized and arbitrary rule of the sovereign. Schmitt found that this idea explained the image of Leviathan as a great machine that is also a man. This image is deeply metaphysical in that it challenges the power of other political symbols by seeking to erect the myth of the great machine in their place. It seeks to subvert all political myths, theologies, and religions by its claim to neutrality. But in a sense it is also antimetaphysical since the new god it creates is transcendent in only a juristic, not a metaphysical, sense. Thus, legitimacy is collapsed into legality, or formal legal validity. But, according to Schmitt, in the very claim to do away with all other myths, it makes itself the most profound metaphysical claim of all. The idea of the ruler as a soul in a machine is nothing more than Descartes's idea of individuals as machines with souls. But the elevation of that idea to a political level makes a society organized on individualistic lines possible, and so throws into question all other forms of social organization. Eventually, as part of the logic of the process, all that will matter is that the machine functions, on the one condition that the subjects continue to enjoy protection so that they can go about their own lives. The actual ruler becomes wholly unimportant-as do the content of the laws. Hobbes can thus be justly seen as the founder of legal positivism. For him authority, and not truth, is the mark of a valid law. But this is not to say that private judgment as to the truth has no place in Hobbes's system. Though he shares with Schmitt a deep distrust of allowing any matter of public importance to be determined by a conversation between individuals, Hobbes reserves to individuals the right to determine what is right or wrong for themselves. While Hobbes says in chapter thirty-seven of Leviathan that the sovereign can command conformity to any creed he chooses, and can determine what is a miracle and what is not, Hobbes also makes a distinction between faith and confession and states that all that the sovereign can ask of his subjects is that their actions conform to his commands, not that they believe his commands to be true. 4

14 Id. at 478 (ch. 37).

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Here, according to Schmitt, is the second way in which Hobbes's reliance on individual rationality subverts his solution. It is here that one gets the decisive break in Hobbes's system which will eventually lead to the ideas of freedom of conscience and thought, and thus to the liberal constitutional system. With the distinction between faith and confession, the distinction between the inner and the outer spheres is born, and thus the seeds of the idea of civil society as one vast private sphere, the terrain of free individual action, are sown. And, given the disappearance of the soul from the great machine-state, the state becomes hollow, soulless, and vulnerable to capture by the indirect powers of civil society, each organized around its own myth. The seeds of the idea of civil society as the realm of the inner sphere are also the seeds of the Leviathan's death. The mythical forces which Hobbes's Leviathan were meant to combat are in fact unleashed by it to strike back. 15 The actual change in the inner sphere's status, from something wholly marginal in Hobbes, to something central which should be given primacy over the outer, is, according to Schmitt, largely the work of Jewish philosophers such as Spinoza and Moses Mendel6 sohn, and which logically culminates in Kelsen.1
SCHMITT ON KELSEN

In Schmitt's view, Kelsen's restatement of legal positivism is the fulfillment of the Enlightenment project which attempts to subject human interaction to an impersonal order of rules: the rule of law and not men. The underlying concept is that no individual should be subject to the will of any other individual or group of individuals. If the sovereign is a highly personal entity existing outside the legal order, then the individual is subject to the sovereign's arbitrary will. The logical solution to this problem is to draw the sovereign into the legal order so that he is eventually dissolved into the rules of that order. The ultimate authorizing command of the order both requires obedience to the law and authorizes judges to interpret the law; it becomes a self-sustaining basis of the legal order. Hence Kelsen's "Grundnorm" or basic norm: "Now the 7 1 machine runs itself." Both Schmitt and Kelsen try to emphasize the logical nature of this positivist conception of law. Kelsen emphasizes the appropriateness of the theory. In order to understand legal order scientifi15 DER LEVIATHAN, supra note 1, at 84-97 (my translation).

16 Id. at 87-97, 108.


17 POLrnCAL THEOLOGY, supra note 1, at 62 (my translation).

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CARL SCHMITT ON HOBBES AND KELSEN

11

cally, we must understand it as a logical structure. However, Kelsen believes that what makes such an order a logical structure is not that the content of any rule or norm can be derived from a higher norm, but that the structure is free from internal contradiction. Nor does Kelsen imagine such contradictions to be, in practice, impossible. The instance of illegal state action which he discusses at length in various places comes about simply because one agent of the state issues a norm whose content is in contradiction with the content of another norm. According to Kelsen, what preserves the noncontradiction is the premise that there will always be a higher norm to resolve the conflict.' 8 Schmitt thinks that Kelsen's line of argument illustrates that his solution is merely logical and thus of no practical effect. It dooms Kelsen's legal theory to recognizing as the law even acts which are illegal by the law's own standards, as long the acts are performed by an agent who has the "competence" to do so. Since it also follows from Kelsen's discussion of state illegality that such competence cannot be definitively constrained by law, Schmitt reckons that liberal legal positivism breaks down. In situations of conflict, most notably during a state of exception or emergency, not only is the conflict resolved by some personal act of will emanating from outside the law, the decision as to whether there even is a conflict is a personal one. The person who is the most important locus of power for such decisions is the sovereign. In Political Theology, Schmitt argues that legal positivism exhibits the liberal trait of authority being undermined by rationalism. The necessity of decision in the "state of exception" is the flaw in the positivist legal order. Since the exception cannot be legally determined in advance, both the decisions as to when there is an exception and how it will be managed are not amenable to a prior, rational legal ordering. According to Schmitt, it follows that both the declaration that an exception exists and the means appropriate to deal with it are determined irrationally. Since the most fundamental challenges to a legal order are ones which throw its legitimacy into question and at the same time open up the possibility of a state of exception, it also follows that, if there is legitimacy, it derives from an irrational source. 19

18 For example, the norm which embodies the doctrine of finality holds that an official mistake of law will, even if it contradicts the content of a higher norm, become the law at that time if it is allowed to stand. See INTRODUCrION, supra note 4, at 73-75. 19 POLITICAL THEOLOGY, supra note 1, at 5-15.

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Schmitt writes, echoing the claim made by the main spokesmen for positivism in his day, that legitimacy in the age of rationality is nothing more than legality-the criteria which the law itself provides for valid law. His analysis of this claim is best summed up in the following quote: The positivist has no independent and therefore no eternal type of juristic thought. He subjects himself decisionistically to the decision of the legislature who is actually in possession of state power, because it alone has actual power to enforce its will; but he requires at the same time that this decision has a continuing, solid and unbreakable validity as a norm, which means that the legislature subjects itself to the norm. It is only this legal system that he calls the Rechtsstaat, although in the place of a Rechtsstaat he has a legislative state and in place of justice the security of the law. And then through the normativity of legality he raises himself again above the state's power to decide, which he had subjected himself to in the interests of security and certainty, and puts normative demands to the legislature. Thus he grounds his stance first on a will (the legislature or the statute) then against this will on an "objective" statute.2 Schmitt thinks that the decision to subject oneself (and all other legal subjects) to the decisions of the legislature is the decisionist component which makes positivism possible. But positivism refuses to inquire into the "metajuristic" moment of the decision. Thus it subjects itself to a sovereign power without conceiving of this power as an institution or as a concrete order, and without, above all, asking for what would be "by its own lights good law. 21' Moreover, the purer it becomes, and the more it is torn from the normal situation which it presupposes, the sharper the contrast it makes between the juristic and the worldly, between the economic, the social, and the political. The result is that positivism can no longer distinguish between law and not-law, objectivity and subjective arbitrariness.
22

Although Schmitt does not make this explicit, it seems that for him the decisionist component of legal positivism has two main characteristics. First, there was the bourgeois's historical political decision to form an alliance with the democratic forces resulting in the concentration of legislative power in parliament. Second, there is the continuing and necessary moment of decision which should be both preserved and exhausted in the actual decisions made by
20 DREI ARTEN,

21 22

Id. at 38.

supra note 1, 35 (my translation). at

Id. at 38-40.

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CARL SCHMITT ON HOBBES AND KELSEN

13

the parliament. Thus, the legal positivist is in the impossible position of both subjecting himself unconditionally to parliament while requiring that parliament subject itself to law. Schmitt asserts that this requirement is one that liberals sometimes try in vain to inject with content, namely the liberal value of protection of absolute liberty and private property. But its content can be nothing more than the result of the formalistic concept that laws will be recognized as such only when they are general norms properly enacted by parliament. Nor is this requirement merely formal; it acquired substance from parliament's subordination of the king in order to establish and preserve a concrete bourgeois political order. After that point, however, because it can take on any content, the legal order which legal positivism justifies is both empty and vulnerable to enemy capture. Thus, it might seem that only the first aspect of legal positivism's decisionist component has any real content, and even then it is a content tied to its time. The decisionism preserved by reserving legislative power to parliament is in a sense not a genuine decisionism at all. Rather, it is a decision to avoid decisions, that is both characteristic of, and is what renders vulnerable, liberal politics. Schmitt says that liberalism's "way of being is negotiation, procrastinating half-measures, in the hope that the final clash, the bloody battle of the decision, could be metamorphosed into a parliamentary debate and would allow itself to be suspended in an eternal discussion. ' 23 He regards the defects of this structure as a manifestation of liberalism's contradictory nature. Kelsen, despite his declarations of agnosticism, proclaims more than the disappearance of the state-he also proclaims the death of God. But Schmitt maintains that the death of God results not in the triumph of science but in a war between gods, just as he believes that the disappearance of the state results not in the disappearance of political power, but in the growth of private powers which captured the state. Kelsen's myth, and the liberal myth in general-the political theology of liberalism-is antimythical, antitheological, and antipolitical. It is also antisociological in that it seeks to eliminate power both as a theoretical problem and as a fact of political life. The main feature of Kelsen's restatement is that the sovereign disappears. The idea of a sovereign entity as a personality which both
23 POLITICAL THEOLOGY,

supra note 1, at 63 (my translation).

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stands outside of the legal order and belongs to it is transformed into a mere personification of legal order. State and sovereign become merely different expressions for a valid legal order.
SCHMITr ON DEMOCRACY

Schmitt asserts that democracy and dictatorship are not contradictory, while liberal parliamentarianism and democracy are. This assertion is in part supported by showing how liberal democrats are, perhaps in spite of themselves, also driven to equate democracy with dictatorship. The identification of the minority will with the majority will after the majority has decided is one example of such an equation, as is the idea that the educated might know the will of the people better than the people know it themselves. For Schmitt, these equations must have the same status as the liberal recognition that a state of exception is always possible. That is, liberalism cannot help but recognize, and seek to contain, some crucial factors in political life which potentially threaten its existence. However, liberalism is not only constitutionally incapable of containing such factors; it also provides them with a fertile breeding ground. By inviting the collapse of the state into a society composed of a multitude of competing interest groups, liberalism creates the conditions for a general state of exception with which it cannot deal. And liberalism, in identifying the people's will with what the parliamentary majority decides, opens the door to a majority that can decide to destroy liberalism and requires the people to adopt that will as its own. Thus, while liberalism must recognize the potentially dictatorial identity between ruler and ruled which Schmitt takes to be the essence of democracy, it cannot, in his view, become truly dictatorial. It is dictatorial only in that it provides a battleground for private interests and thus a means for groups organized around such 24
interests to dictate to the rest.

Given that Schmitt views democracy to be no more than an asserted identity between ruler and ruled, why does he find himself compelled to appeal to democracy? The answer to this question is that to Schmitt, an appeal to democracy is the only modern means to legitimize political authority. Claims based on tradition are no longer available. Claims based on rationality subvert authority and
24 Groups which are committed to liberalism cannot achieve a true dictatorship-all
they will do is weaken the state and society. Groups which are committed to destroying liberalism by constitutional means can exploit that weakness to overthrow the constitution.

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thus subvert democracy when one seeks to put democracy on a rational basis. But the appeal to democracy is necessary, since, in the absence of tradition, the people are the audience to which one must appeal and an appeal to the people is an appeal to democracy. Democracy is what is done in the name of the people-what one does when one can authentically assert that an action is identical to the people's will. An appeal to democracy is then a necessity for any ideology that seeks to become dominant. In one sense, it is a purely formal requirement. But in another sense, it is not purely formal since only some appeals can give substance to the formal idea. According to Schmitt, liberalism, like any ideology, had to make a pact with democracy. In order to make its pact, it had to relativize democracy through parliamentarianism, conceived (as Kelsen conceives it) as a model of competing private interests out of which the truth ostensibly should emerge. Liberalism thus aims at truth, but then undermines its aim by surrendering to the competition of atomistic interests, which it simultaneously attempts to render impotent by the division of powers.
I

SUBSTANCE AND FORM IN POLITICAL AND LEGAL THEORY

As we have seen, Schmitt holds that the structural weaknesses of liberalism are irreparable because they are inherent in liberalism's nature, which is to be neutral or substanceless. Of course, the very identification of these problems as structural depends upon Schmitt's claims about substance. One will not see the problems as structural and therefore irreparable, unless one also accepts the premise that liberalism needs a substance which it both does not and cannot have. If one provisionally rejects the structural claim, then Schmitt can be understood as pointing out problems in a useful way rather than seeking to subvert liberal democracy altogether. The understanding of Schmitt as wanting to help liberalism is one which Schmitt encouraged after World War II and which his American disciples propagate today. But it makes nonsense of his work. One cannot understand that work without recognizing that it is driven by a particular purpose-to show the need for a myth based on an idea of substance. There are two very abstract criteria for what can count as substance. The first is negative-and we will know it by its deep antithesis to liberalism. In particular, we will know it by its articulation of a vision that makes life worthwhile for individuals.

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And, in Schmitt's view, this means a vision on whose behalf individuals can be asked to sacrifice their lives. One's life is worthless, he thinks, unless it has a purpose for which one is prepared to die. Liberalism cannot ask for the highest individual sacrifice since it makes the individual the ultimate judge of what is good for him or herself. It is in Hobbes's reservation to the individual subject of the right to resist the sovereign's attempt to kill him that Schmitt finds the third instance in which Hobbes's reliance on individual rationality- subverts his authoritarian solution.25 The second criterion for substance is existential. It arises during a crisis situation in which one of the participants in the struggle is able to articulate a vision of who are the enemies of the people which meets with the people's acclaim. In an internal political struggle, the identification of the enemy will divide the participants into friends and enemies, but it will also bring the people into existence. This abstract purpose is potentially very vulnerable. Since it invites any substantive ideology to replace liberalism, and does not discriminate further between the range of ideologies, it cannot, for example, close the door in late Weimar Germany on Nazism while trying to keep it open for some dictatorial union between26 Catholic aristocrats in the cabinet and the office of the President. Nevertheless, even if it does not provide us with a positive theory, Schmitt's analysis seems theoretically very powerful. Even if the problems he uncovers are not seen as structural unless one is driven by some abstract purpose, they are no less real or serious. The power arises because, even if one does not welcome the idea that some substantive ideology is the only alternative to substanceless liberalism, one might be driven to resign oneself to this idea if the problems are indeed structural. Schmitt's analysis of liberal ideology and of liberal institutions is constantly designed to ask whether this problem can be cured by a neutral, apolitical doctrine, when it is such a doctrine that appears to be the cause of the problem in the first place. His strategy does not appear much different than the one adopted by Ronald Dworkin who argued for a conception of law built on the ideal of integrity. According to Dworkin, "[a]stronomers postulated Neptune before they discovered it.
25 It should be clear that I accept much of what Leo Strauss had to say in his review essay Comments on Carl Schmitt's Der Begriff des Politischen. See THE CONCEPT OF THE POLITICAL, supra note 1, at 81-105. 26 The latter was, of course, Schmitt's preferred solution to the problems of Weimar.

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They knew that only another planet, whose orbit lay beyond those already recognized, could explain the behavior of the nearer planets. Our instincts.., suggest another political ideal standing beside justice and fairness. '27 Generally, Dworkin's first crucial move is to suggest that something exists that naturally fills the gap repeatedly encountered during analysis of political morality's persistent problems. Indeed, the gap Schmitt and Dworkin claim to encounter seems to me to be the same-a lack of substance. Interestingly, from the beginning, Dworkin believed that he had to remedy the problems of liberalism at two levels. First, he had to replace legal positivism with a theory of law that claimed a basis of moral substance immanent in the law. Second, he argued against utilitarian theories that adopted a view of politics similar to Kelsen's and for a substantive theory of individual rights based ultimately in a doctrine of equality.28 The difference between Schmitt and Dworkin is that Dworkin then positively argues for a particular way of filling in the ideal of integrity. Schmitt did not carry his theory so far because he, as a relativist, found it to be a liberal mistake to suppose that such positive justification is possible. If Schmitt is right, liberals who adopt something like Kelsen's relativist stance are in real trouble; for if he is right that the problems of such a stance are cured only by an absolutist leap which is not itself justified but which provides its own justification through success, then liberals have no better -ground than he to discriminate between which destination the leap should bring. I One curious consequence should be noted. Schmitt does not argue that relativism is flawed because it cannot support the kind of moral absolutism he regards as the sole cure for its problems. If he were making that argument, he would refute himself since, as I have claimed, he is also a relativist. Rather, he seems to be arguing that there is a pragmatic necessity to move beyond relativism to absolutism or infallible dictatorship-but that liberalism's constitutional commitment to relativism renders it pragmatically incapable of making that move.29 Dworkin, of course, is an antirelativist. But Schmitt would probably want to try to show that antirelativism is inconsistent with
27 RONALD DWORKIN, LAW'S EMPIRE

183 (1986).

(1978). 29 One can, I think, plausibly understand the internal development of Schmitt's own thought as a gradual recognition of the nature of that necessity and of what was required to meet its demands.
28 RONALD DWORKIN, TAKING RIGHTS SERIOUSLY Vii

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liberalism. Following through with Schmitt's logic, it is significant that Dworkin finds it necessary to appeal to a substantive sounding idea like integrity, which, as Dworkin describes it, is meant to found a liberal community. But Dworkin's recognition of liberalism's need to acquire substance must, Schmitt would think, lead to the realization that liberalism cannot meet this need. Dworkin would either have to retreat from substance or recognize that there is no stopping point on the road to substance. I offer the following example (with apologies to those feminists whose arguments I have cast in a Schmittian mold). According to Dworkin, the hope for a substantive basis to liberalism is equality. But in his critique of those feminists who argue for the censorship of pornography on the basis that it perpetuates inequality between the sexes, Dworkin is committed to absolute freedom of speech, even if its effect is to enable one group, in this case men, to use their superior resources to dominate another group. 30 His reason is that one must be agnostic or neutral on the subject of how individuals choose to live their lives, which means remaining neutral in regard to an individual's conception of what is in her or his own best interests. He therefore argues that, under a liberal democratic constitution, legislation accepting the arguments of feminists who would eradicate pornography would be unconstitutional. His neutrality thus favors one group over another and his concern is that if this stance of neutrality were to be modified, there would be no stopping point. In Schmittian terms, one might say that the example shows that Dworkin is fundamentally committed to relativism since his stance is that each individual's preferences as to how to live must be considered by the state to be as good as those of any other individual. Thus, private choices trump a public choice and the political is reduced to private morality in which the state has no business to interfere. Dworkin's model allows a different covert politics to reign and demonstrates that the liberal ideal of universal equality is a cloak for power grabs by particular interest groups.
30 See his essays on this topic responding to Catherine MacKinnon in the New York Review of Books. Ronald Dworkin, The Coming Battles over Free Speech, N.Y. REV. OF BOOKS, June 11, 1992, at 55 (reviewing ANTHONY LEWIS, MAKE No LAW: THE Sullivan CASE AND THE FIRST AMENDMENT (1993)); Ronald Dworkin, Liberty and Pornography, N.Y. REV. OF BOOKS, Aug. 15, 1991, at 12; Ronald Dworkin, Women and Pornography, N.Y. REV. OF BOOKS, Oct. 21, 1993, at 36 (reviewing CATHERINE A. MAcKINNON, ONLY WORDS (1993)). I discuss Dworkin's responses to MacKinnon in my forthcoming article, Pornographyand Public Reason. See David Dyzenhaus, Pornographyand Public Reason, VII CAN. J. OF L. & JURISPRUDENCE (forthcoming 1994).

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A Schmittian might also draw our attention to the fact that, from the liberal standpoint, Dworkin is correct to stick to his guns. For if he were to accept the equality-based feminist argument for censorship, there would in fact be no stopping point for the claims that competing interest groups would make of the state. Liberalism is damned if it does and damned if it doesn't. My aim here is by no means to suggest that we should accept Schmitt's critique of liberalism. His own embrace of Nazism should warn us that his political existentialism is highly dangerous. 3 1 But there is, I think, something to his critique. Where it points productively is in the task liberalism must undertake and which he thought impossible. That is, liberalism must learn to manifest itself in the public realm in a way that does not privatize politics. Put differently, liberalism has yet to show that it can offer a convincing account of democratic citizenship.

31 My view is that he was in principle committed to embracing Nazism, once it became the dominant ideology.

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