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THE OUTLAW

Carl Schmitt’s Postwar Notebooks and Small Essays

This chapter examines Schmitt’s postwar years; in particular, his response to the experience as a prisoner in Berlin and Nuremberg, as well as the precarious situation after his release in 1947 when he returned to his hometown, Plettenberg, in rural West Germany, far removed from the intensive public life of the big city. The central question posed in this chapter is: What was the meaning and significance of 1945 for Schmitt? There can be no doubt that it was a sharp caesura. Not only did he lose his post at the University of Berlin and was never allowed to return, he found himself treated as a war criminal who nearly went on trial in Nuremberg. At the same time, Schmitt, when he looked at his intellectual development and his work, tended to downplay the significance of 1945. It appears that in his mind the end of the Third Reich and the following restoration of a liberal political regime in West Germany were not decisive turning points for him. While Schmitt encountered more problems and setbacks after 1945 than most Germans and bitterly complained about his fate, his understanding of his own intellectual commitments is not tied to 1945 as an index of fundamental change.
Nonetheless, the military defeat of the National Socialist (NS) regime in 1945 confronted Carl Schmitt with serious personal as well as theoretical questions: How did one judge the rise and fall of the Third Reich? What was the appropriate response to the destructive forces that the Hitler regime had unleashed and the enormous loss of life as a result of these forces? And how would Schmitt explain his own role as an active participant of the NS regime? These were not only moral and historical but also legal questions. It characterizes Schmitt that he publicly responded to them primarily in legal terms. For him the military defeat and the decision of the victorious Allies to hold the German people and their leaders accountable for the war raised fundamental legal questions about the conduct of war, especially the responsibility of the state and its leaders vis-à-vis the international community. In other words, Schmitt placed the war in the broader context of international law (Völkerrecht) and sought to determine whether the German Reich, by declaring war on Poland and the Western powers as well as Russia, had violated international law. This assessment, however, had a very personal aspect as well. Schmitt had played an important role in the Third Reich, especially in the years between 1933 and 1936, in shaping the organization of the NS legal system. Should he be held accountable for these actions? Schmitt argued that as an ordinary German citizen he was not responsible for Hitler’s war.
The occasion for Schmitt’s sustained analysis of this problem was the request of the industrialist Friedrich Frick for a legal opinion because he expected to be put on trial for war crimes.1 Schmitt’s extensive and thorough brief covers the ground, as one would expect, in broad terms, starting with a discussion of the question of Germany’s responsibility (Kriegsschuldfrage) for World War I, and subsequently providing an overview of the changes that took place in international law during the interwar years. Schmitt focuses his attention on the case of a war of aggression (Angriffskrieg), a war started by a nation-state that had not been attacked or threatened by another nation-state. In the treaty of Versailles, the German Reich was declared culpable and therefore held accountable for the damages that its military actions had caused. Schmitt argues that this judgment was not in line with older international law, in which a sovereign nation-state had the right to declare war on another state without criminalizing itself. Further, Schmitt points out that the United States did not follow the line of argument presented by the entente and set up its own separate peace treaty with Germany that did not mention German culpability.
In Schmitt’s mind, World War I was not only the turning point in the international evaluation of Angriffskrieg but also the model for his assessment of the Third Reich. By focusing on the problem of its military aggression, Schmitt underscores the continuity from Imperial Germany to the Third Reich, thereby downplaying the fundamental political and moral differences between the two regimes. The extraordinary excesses of Hitler’s totalitarian regime become less apparent behind a veil of Schmitt’s legal arguments. In the brief, the question of total war, which Schmitt does take up in other contexts, especially the war of annihilation (Vernichtungskrieg) against the Soviet Union and the extermination of the Jews, which of course was intricately linked to the German conduct of war in the East, are no longer part of the narrative. However, elsewhere in the brief Schmitt points to the peculiar character of the NS regime as different from either the monarchy or the liberal democracy of Weimar. The NS regime was characterized by the preponderance of the National Socialist Party, which had penetrated both the state and the social community. As a consequence, at least according to Schmitt, the responsibility for the war and its conduct is limited to Hitler and a narrow circle around him because they participated in the decision-making process. “Turning to the question of the search for the perpetrator and the circle of perpetrators of the international crime defined as ‘war,’ it follows that only those can be considered as perpetrators who were actual participants in terms of being part of the political decision making process” (IVA 65). Focusing his attention on the specific organizational nature of Hitler’s regime as a system of competing in-groups, Schmitt comes to the conclusion that only those who had immediate access to Hitler should be considered as perpetrators. It is not enough to be part of the state hierarchy, because the structure of Hitler’s regime made it difficult, if not impossible, to think of it as state-centered in the traditional sense, thereby also moving power and responsibility from the state to the NS Party.
Given the special purpose of the legal brief, the crucial question then is the situation of individual German citizens (among them Carl Schmitt). Under what circumstances can they become responsible and potentially culpable for Hitler’s war? Schmitt presents two arguments. First, he repeats the older argument that there was no clear distinction between wars of aggression and other forms of war in the older international law by pointing out that even in 1939 the neutral powers did not use that distinction in their declarations of neutrality. Second, he claims that the individual citizen could not be expected to resist his or her government in the case of war. In fact, Schmitt suggests that this citizen can leave the judgment on whether a war is just or unjust to his or her government. “This practice was in accordance with the secular tradition, which dominated the practice of all nations of the European continent for centuries, and could be replaced only by new institutions” (IVA 74).
It is worth noting that Schmitt invokes the authority of Luther and Kant to support this point. According to Schmitt, the modern state does not grant the right to resist the state (Widerstandsrecht) that the medieval order explicitly recognized. The citizen who refuses to follow orders or resists orders is therefore logically treated as a traitor to his or her country. The point of this argument is obvious: The average (German) citizen was not in a position to resist the state in his or her assessment of the justification of a war. While this holds true even in democracies, we are told, it is especially pertinent in the case of Nazi Germany. For Schmitt this is not a question of moral judgment and conscience but an issue of protection and obedience. If the government cannot protect its citizens from reprisals, the citizens cannot be expected to resist orders that are unlawful.
Schmitt’s defense of Frick as a German citizen draws on a number of different lines of arguments and legal traditions. He rejects in strong terms the criminalization of modern interstate war as hostile to the tradition of the ius publicum Europaeum. In addition, he draws on the laws regulating the relationship between citizen and state. Finally, he argues that because of the special nature of the Hitler regime the individual citizen was in a particularly weak position and had good reason therefore to be cautious in his or her dealings with the government. All these arguments could of course also be applied to the case of Carl Schmitt and his role during the NS regime. By building a defense for Frick, therefore, at least implicitly, he builds a defense for himself. However, the critical question is this: Was Schmitt no more than an ordinary German citizen without influence and power, as the defense maintained? In his notebooks, his Glossarium, Schmitt makes a similar claim, writing passionately against those who accused him.

Schmitt’s Notebooks

In Schmitt scholarship, Glossarium has been harvested mostly for supporting evidence of Schmitt’s opinions and resentment. But rarely have these diaries been studied as a coherent text, a text characterized by severe tensions and contradictions. The notes, written between 1947 and 1951, articulate an inner turmoil that shocked his readers when the diaries were first published in 1991. They show a side of Schmitt that his visitors in Plettenberg did not see. While the visitors received the impression that their genial host enjoyed the freedom of his forced retirement from public affairs, the notes document Schmitt’s deep anger and resentment as well as his continued commitment to his well-known political positions. Glossarium offers an unflattering but critical portrait of Carl Schmitt in transition, a picture that we have to keep in mind when reading his late work.
The biographical facts leading up to the diaries are well known.2 At the end of the war, Schmitt found himself in Berlin in a house in Grunewald after losing many of his possessions in an air raid that destroyed the apartment building in which he lived. Initially, he was not seriously bothered by the military occupation, although he was not called back to teach at the University of Berlin. Schmitt’s problems began in September of 1945 when he was arrested by the Americans, probably at the request of Karl Löwenstein, a refugee and lawyer, who had followed Schmitt’s career under the Nazis. It was Löwenstein who had written the first memo for the American forces concerning Schmitt’s participation in the crimes of the NS regime. Schmitt was kept in a camp for civilians for more than a year and was exposed to repeated interrogations. The purpose was to clarify Schmitt’s active participation in Nazi politics, especially in the field of Nazi law. In the end the interrogators were unable to prove Schmitt’s direct involvement in Nazi policies as the advisor of Hermann Göring and Hans Frank. As a result, in October of 1946 Schmitt was released from the camp.
Yet the freedom did not last. Schmitt was arrested again in March of 1947, this time in the larger context of the Nuremberg trials, where the core of the Nazi elite faced accusations of war crimes and crimes against humanity. Schmitt’s role as an important and highly visible legal advisor to Göring and Frank (both of them on trial) exposed him to the scrutiny of Robert Kempner, the deputy prosecutor, who interrogated him four times. In the first interrogation Schmitt was asked to explain his concept of Großraum (expanded territory) and its possible impact on Hitler’s political and military strategy for Germany’s expansion during World War II. In the second meeting, Kempner demanded to know whether Schmitt had supported the preparation of the war as an Angriffskieg (a war of aggression). While these meetings clearly focused on Carl Schmitt as a potential defendant, the third and the fourth meetings shifted the direction of the interrogation. Now Kempner wanted to find out whether certain ministers and state secretaries were, in Schmitt’s opinion, accountable for the criminal nature of Hitler’s policies. In this context Schmitt moved from potential defendant to potential witness. At this point, the question of the nature of World War II seen from the German point of view, and the character of a new imperial German strategy under Hitler, still occupied Schmitt in his diaries. Schmitt vehemently resisted the link between Angriffskrieg and war crimes that Kempner and his colleagues imputed in the trial. Schmitt was set free on May 13, 1947, without having been charged, and he returned to Plettenberg.
Although free, Schmitt found himself in a precarious position. He had been removed from his teaching post and therefore had no income. Moreover, he was not allowed to publish and was excluded from public discourse. Thus Schmitt was a man without a public voice in a radically transformed cultural and political environment that he experienced as hostile. While the immediate impact of the Allies on the civilian population was already decreasing in 1947, it was obvious that they controlled all major political decisions and carefully watched the first steps of the German people toward building new political and social institutions. By 1947 the tensions between liberal solutions in the West and Communist solutions in the Russian zone were visible. The unification of the Western zones in January of 1947 and the failure of the governors of the individual German states to agree on a common nation state in June 1947 were clear indicators of a growing ideological and political divide, which would lead to the foundation of two separate states in 1949.
With the restoration of the public media (newspapers, journals, radio) and the political parties, the future of Germany, her political structure, and her cultural revival became the central issue.3 Yet it is important to note that in 1947, this future was still uncertain. Everything seemed to be in flux. The proposals and party programs ranged from liberalism, which emphasized individual freedom and stressed the dangers of collectivism, centralization, and authoritarianism, to democratic socialism on the left. The Social Democrats, under the leadership of Kurt Schumacher and Carlo Schmidt, favored socialist solutions, including the nationalization of basic industries. But they were highly critical of the Soviet model as a totalitarian solution. Nonetheless, their plans were still based on Marxist theory, assuming the centrality of the working class for the future of Germany. In the liberal camp, Wilhelm Röpke, for example, praised the synthesis of humanism and (restrained) capitalism in Die deutsche Frage (1945) and Civitas humana (1946).4 He and theorists such as Walter Eucken and Alexander Rüstow pleaded for a third path that would avoid the pitfalls of monopoly capitalism in the West and state socialism in the East. This option could align itself with a revival of German Classicism and Goethe in particular, as it was propagated by the journal Deutsche Beiträge, which was supported by moderate conservatives like Ernst Robert Curtius, Rudolf Alexander Schröder, and Hans Carossa. Essential to this position was, of course, the emphatic distance from and critique of fascism and the Third Reich.
Given the severity of the German defeat and the increasing awareness of the crimes of the Nazi regime, any public defense of the Third Reich was out of the question. But there were different ways of accommodating those like Carl Schmitt who had collaborated. They could be absorbed into a broader, acceptable ideological framework on the right spectrum or they could be selectively integrated into existing programs and positions. For Schmitt, conservative and nationalist groups were of course of particular interest. But these intellectual communities had reasons to be cautious because of the still existing general oversight by the allied military administrations. On the whole, the German Far Right remained in hiding. In this respect the churches enjoyed a greater degree of freedom, since they could claim, with limited justification, to have resisted Hitler.
Indeed, in these years much of the energy to overcome the spiritual vacuum following the ideological defeat of fascism came from the Catholic and Protestant Church, although not necessarily from the administrative center of these institutions. One could build on the public record of known opponents, some of whom had given their lives for their Christian faith. From a theological perspective—and this became important for Schmitt—National Socialism was not primarily the enemy of the Weimar Republic but the last and final stage of a long process of secularization, which had to be reversed. On the Protestant side, Reinhold Schneider in his 1946 study Die Heimkehr (Homecoming) argued that it was the German Enlightenment (Lessing, Kant) and German idealism that were responsible for the rise of National Socialism and the following catastrophe. Obviously, such criticism leads to the demand that only a return to the foundations of the Christian faith can stabilize Germany and offer a spirituall...