Achieving fame as the “crown jurist of the Third Reich” does not sound like a good way of endearing yourself to posterity. Indeed, for decades after the defeat of Nazism, the ideas of Carl Schmitt were widely regarded as beyond the pale.
But in recent years there has been a global revival of interest in the work of Schmitt, who died in 1985 at the age of 96. Chinese legal scholars, Russian nationalists, the far-right in the US and Germany, as well as the far-left in Britain and France, are all drawing upon the work of the premier legal theorist of Nazi Germany.
The resurgence of interest in Schmitt is testimony to a global backlash against liberalism. As the Princeton political theorist Jan-Werner Müller puts it, Schmitt was “the [20th]century’s most brilliant enemy of liberalism”.
Schmitt’s hostility to parliamentary democracy, and his support for the power of an authoritarian leader to decide the law, led him down some very dark paths. He issued a legal opinion justifying Hitler’s suspension of democracy and assumption of emergency powers after the Reichstag fire in 1933. And when the Nazis murdered scores of their enemies in the “Night of the Long Knives”, Schmitt wrote a notorious essay justifying the killings. He was also an anti-Semite who called for the expulsion of Jewish academics from Germany and convened a conference on purging German law of Jewish influence.
Despite this, contemporary anti-liberals find much to admire in his work. He scorned ideas such as the separation of powers and universal human rights and argued that the distinction between “friend” and “enemy” is fundamental to politics: “Tell me who your enemy is and I will tell you who you are.” To Schmitt, liberal talk of the brotherhood of man was simply hypocrisy.
While liberals are concerned with the establishment of the rule of law, Schmitt was more interested in how the rule of law can be suspended through the declaration of a state of emergency. As he wrote: “Sovereign is he who decides on the exception.”
This argument has a particular resonance in modern Germany, where the far-right Alternative for Germany party argues that Chancellor Angela Merkel should have suspended international law on refugees, rather than allowing more than 1m migrants to enter Germany in 2015 and 2016. The Trump administration is considering declaring a limited state of emergency in response to the alleged threat to America’s southern border posed by illegal migrants and refugees. Contemporary Turkey and Egypt provide examples of how the declaration of a state of emergency can be used to suspend legal rights to devastating effect.
There is no reason to believe that President Recep Tayyip Erdogan of Turkey has studied Schmitt. But authoritarian thinkers elsewhere in the world are clearly drawing upon his ideas. In China, legal scholars at Beijing University have used his thought to justify the Communist party’s control of the courts. As François Bougon, author of a study of President Xi Jinping, explains: “In Schmitt, Chinese authors have found arguments against liberal conceptions of western democracy.”
Alexander Dugin, a Russian nationalist intellectual, has written an essay entitled “Carl Schmitt’s Five Lessons for Russia”. He praises his dicta of “politics above all else” and “let there always be enemies”. And, as a believer in the importance of the Eurasian landmass to Russia’s destiny, Mr Dugin is attracted to Schmitt’s emphasis on “great spaces”, “large geopolitical entities, each of which should be governed by a flexible super state”. Ironically, this was a doctrine that was used to justify the Nazi invasion of Russia, in the search for Lebensraum. But Mr Dugin finds in Schmitt a moral justification for great land empires and “a clear understanding of the enemy facing Europe, Russia and Asia that is the United States of America along with its . . . island ally, England”.
However, there are also fringe thinkers in the US and England who are attracted to Schmitt’s ideas. Richard Spencer, an American white supremacist who coined the term, “alt-right”, has cited Schmitt, along with Nietzsche, as an inspiration. And some on the European radical left have also been attracted by Schmitt’s rejection of liberal attempts to take politics out of the operation of the law or the conduct of economic policy.
Perhaps more surprisingly, the study of Schmitt has also entered the academic mainstream. As Professor Müller puts it: “In many ways his thought has been normalised.” In 2017, Oxford University Press published The Oxford Handbook of Carl Schmitt. The blurb notes: “Despite Schmitt’s rabid anti-Semitism . . . the appeal of his trenchant critiques of . . . representative democracy and international law . . . is undiminished.”
Ironically, this willingness to debate disagreeable ideas is a hallmark of the very liberalism that Schmitt despised. But the notion that Schmitt’s “trenchant critiques” can be admired separately from his despicable life may be taking liberal tolerance a little too far.