I. LIBERALISM AND MARXISM: SHARED ANTINOMIES
The transformation of liberalism
The first decades of the twentieth century were marked by a wide-ranging rejection of the body of theoretical concepts that had supported most ideas of state legitimacy through the nineteenth century: that is, liberalism. First, this period witnessed an increasing hostility towards positivism
, which had been the dominant doctrine among liberal constitutional theorists of the European bourgeoisie. Second, this period also witnessed a growing opposition to the various outlooks associated with Kantianism
, which, especially in Germany, had shaped the more progressive political theories of the liberal class.1
Positivism and Kantianism, although diametrically opposed in questions of normative deduction, shared much common ground. In particular, both outlooks can be viewed as theories promoting minimalist models of statehood and constitutional rule, and both converged around the view that states obtain legitimacy through formal and largely apolitical normative processes. That is to say, both outlooks claimed that states acquire legitimacy by ensuring that their actions comply with a thin set of norms (objectivized as constitutional rights) that are withdrawn from everyday politicization; both implied that in modern societies political systems demonstrate legitimacy through formal acts of rights-attribution, and they are not required to integrate members of society
as active participants or even specifically to respond to the definite relations of civil society; both thus defined constitutions as documents that legitimize the state by ensuring that the state does not become a battleground for rival social interests and by restricting the degree to which its foundations need to be explicitly contested. In principle, therefore, both positivism and Kantianism can be seen as liberal theories that deduced the form of political legitimacy from a principal antinomy
between law and politics, and both presupposed that the law independently sets the preconditions for political legitimacy and political freedom, so that particular state actions and particular political volition always remain subsidiary elements in the constitution of political legitimacy. In both views, in fact, this antinomy was rooted in a wider set of antinomies, between norms
and facts, ethics
and action, reason
, and theory
, which together gave rise to the distinctive liberal claim that the sources of political freedom and legitimacy are essentially external to the state itself, and the state plays little factual, active, volitional, or practical role in securing the conditions of its legitimacy.
Viewed from a historical point of view, it can be observed that the liberal visions of positivism and Kantianism reflected the reality of European constitutional states that had not fully entered the condition of mass democracy, and in which the social interests that could be legally represented were restricted. With the increasing demands for substantial franchise reform in most European states after 1900, however, liberal theories began to modify their formalistic constructions of legality and legitimacy. The reorientation of liberal theory became particularly intense during the First World War, by which time it had become clear in most states that the political apparatus would shortly be forced to integrate materially divided and intensely nationalized civil constituencies. It is in the context of this precarious shift to mass-democracy, most importantly, that the political writings of Max Weber are best appreciated.2
Weber’s writings might be seen as emblematic for the redirection of liberal theory at this time. Weber argued for a reconstruction of liberalism as a doctrine that, although accepting the need for a parliamentary system and the formal rule of law, was able to integrate diverse social sectors by promoting techniques of elite leadership and personalistic legitimation not widespread in standard liberal theories.3
Underlying this new brand of liberalism was the quasi-Nietzschean
assumption that classical liberal ideas had too easily assumed that all society could be pacified under law. They had failed to reflect on the ineluctable aspect of conflict
in all politics,4
and they had omitted to observe that modern democratic polities could be unified – and legitimized – only through encompassing political experiences, which integrate citizens in the formal-legal, the active, and the emotive-experiential dimensions of their lives. For Weber, therefore, the stability of democracy depended on the extent to which it was informed by the direct personal appeal of its leaders.5
The transformation of Marxism
Similarly, the early twentieth century was also marked by an increasingly hostile critique of the orthodoxies upholding the other main ideology of the nineteenth century: Marxism. As is well documented, in the later nineteenth century Marxist orthodoxy consolidated itself around deterministic and quasi-scientific ideas, and Marxist theorists tended to endorse a brand of socialism that construed the progression toward a socialist economy as a quasi-natural process and used categories of political economy for providing formal analysis of class relations at different junctures in this process. Although clearly separated from liberal principles on questions of material ethics, therefore, the main lineages of socialist orthodoxy before 1900 had important points of overlap with mainstream liberal theory. Most particularly, Marxist orthodoxy shared with liberalism the positivistic conviction that society could be interpreted as a body of rule-bound and rationally constructible social facts, and that the evolution of society was largely independent of human volition and required little transformative intervention. In its political dimensions, moreover, Marxist determinism also followed liberal outlooks in accounting for human improvement and liberation as an essentially apolitical process, in which positive laws of progress predetermined functions and limits of political action, and in interpreting the political apparatus of society as a deterministically produced element of superstructure, possessing neither directive nor integrative force for society as a whole. In this respect, the orthodox Marxism of the late nineteenth century might be seen to have partly replicated the formal-antinomical structure of liberalism, and it too ordered its account of social reality around underlying antinomies between reason and action, freedom and history, and law and politics.
In consequence, the reaction against orthodox Marxism after 1900 showed similarities with the reaction against liberalism, and it brought a dramatic expansion of the political-actionistic content of Marxist theory. This was manifest in the works of Rosa Luxemburg, who developed a theory that emphasized the role of spontaneous industrial action as a “political weapon” in class struggle.6
This was also visible in the works of Lenin, who proclaimed that the political party was the vanguard of the proletariat engaged in class struggle, and assigned to the party the central role in coordinating the revolutionary process.7
At the same time, different strands of French and Italian syndicalism began to accentuate local political action as the central source of political transformation and so fully to reject the rule of law and the rationalized state bureaucracy as forces for social change.8
This syndicalist tradition culminated in the works of Georges Sorel, who sought to eradicate the positivist and formalist dimensions from Marxist theory, and argued that radical social upheaval could be induced only by unreflected collective voluntarism, which was to be concentrated in the general strike.9
During the First World War, moreover, this actionistic reconstruction of Marxism also migrated across the political spectrum, and it was reflected in the ideas of Benito Mussolini and other early Italian fascists.10
Mussolini’s doctrine, after he had abdicated his position on the actionist wing of the Italian socialist movement, was designed to overcome the perceived actionistic weakness in Marxism by identifying the nation as a focus of political identity, which could unify human action far more potently than any sense of class affiliation.11
He thus championed, not the class, but the mythical nation as a unit of political
action capable of overthrowing liberalism and so also of building a robustly integrated state.12
The early twentieth century, in sum, brought about a theoretical realignment at all points in the political landscape, through which political action came to act as a term for correcting the formalistic dimensions of the main pre-1914 ideologies. Indeed, by the end of the First World War the self-critique of liberalism was showing clear signs of coalescing with the self-critique of Marxism, so that antiliberal and anti-Marxist political attitudes were manifestly beginning to run together. In both theoretical lineages, it was argued that liberalism and Marxism had failed to support their ideas of government and progress with anything more than highly abstracted and quasi-metaphysical accounts of natural order, and that only a more substantial concept of political existence could overcome the conceptual antinomies responsible for this. Politics, thus, was configured as a unifying category of social voluntarism, which superseded the abstraction of human society and human experience under liberalism and Marxism, and which was posited as decisively implicated in all social transformation and as decisively constitutive of all human freedom.
II. CARL SCHMITT AND LIBERALISM
It is in this context that the intellectual origins of the works of Carl Schmitt13
can be located. Schmitt, a Roman Catholic born in the (strongly Catholic) Rhineland area of Germany, was the preeminent constitutional lawyer in Germany during the interwar era, and he was a fierce conservative critic of the Weimar Republic. He gained particular notoriety for his endorsement of the use of prerogative legislation in the early years of the Republic, for his advocacy of executive rule and authoritarian governance after 1930, and for his substantial part in the constitutional suspension of the democratic Prussian parliament in 1932. Although originally associated with the Roman Catholic party (the Zentrum), after 1933 Schmitt (to the surprise of his associates) became one of the leading spokesmen of the regime established by the NSDAP. He fell out of favor with the regime in
the mid-1930s, but he was incarcerated during the period of de-Nazification after 1945 and was barred from holding positions at universities in the Federal Republic of Germany.
Schmitt’s entire work might be viewed as a critique of the antinomies of liberalism (and, to a lesser extent, of Marxism), and it has the particular characteristic that it defined constitutional law as the theoretical discipline in which a political corrective to these antinomies was most urgently required and could be most persuasively administered. Schmitt, therefore, was a constitutional lawyer, who pursued analysis of particular constitutional problems in Germany in order to examine the legitimatory predicaments of modern mass-democratic states, to explain how the legitimacy of these states could be reinforced, and to counteract the destabilizing loss of political content and political will, which he saw as the result of both liberalism and Marxism.
Schmitt’s work had its theoretical center in a critique of the liberal constitutional theories associated with legal positivism,14
and especially of Hans Kelsen’s pure theory of law
. In this regard, Schmitt reserved particular antipathy for Kelsen’s assumption that law is a neutral
medium of social organization, whose normative or value-rational content is not politically determined,15
and he denounced the Kelsenian assumption that state legitimacy is produced by ne...