A “Catholic Layman of German Nationality and Citizenship”?: Carl Schmitt and the Religiosity of Life
Carl Schmitt positioned his constitutional theory in the context of a “political theology” and referred to himself repeatedly as a Catholic. Schmitt scholarship has long pursued this self-depiction without establishing a convincing “Catholic” doctrine, political position, or life praxis. This chapter provides an overview and critical interrogation of Schmitt’s self-description. By emphasizing his political and theological distance from his early background and from the political Catholicism of the interwar period, the chapter analyzes his systematic connection of theism, personalism, and decisionism, and considers Schmitt as a “religious” author and person. Schmitt’s apocalyptically dramatized perception and stylization of life as a permanent “state of exception” can be seen as a religious practice of testing contingency and sovereignty and self-assigning to “salvation.” Schmitt must thus be understood not as a part of majority Catholicism, but beyond it, among the religious movements in the history of modern secular faith.
The chapter addresses the topic of animals as scientific objects by drawing on recent literature that emphasizes the heterogeneous construction—or eventuation—of the object. As such, the animal object is understood to emerge from a version of biomedical science that encompasses various elements that derive from within and beyond the laboratory and the experimental system. The chapter thus traces a number of ways the animal is eventuated as an object, including the processes of animal supply and scientist self-selection, the procedures of animal care and ethical assessment, and the prospects of collaboration and clinical translation. Along the way, the chapter points to the complex and conjoint eventuation of animals as subjects and of humans as objects. The chapter ends with a brief reflection on how we might better engage with the complex ethics of the co-becomings of human and animal, objects and subjects.
Stephen R. L. Clark
Both “animals” and “religion” are contentious concepts, with many possible meanings and associations. This chapter takes animals to be eukaryotes distinct from protists, plants and fungi, and “religion” as the attempt to “live a dream.” I describe four principal ways of dreaming animals: triumphalist humanism (for which only “human” beings are of any interest); traditional notions of good husbandry (which requires “human” beings to care for the non-human, within limits set by human interests); notions of metempsychosis and transformation (where “human” and “non-human” are constantly shifting characters); and awakening to the real presence of others, and so—paradoxically—evacuating them of merely “religious” meaning.
Carl Schmitt’s political and juridical thought is anchored in a specific diagnosis of modernity. He develops the concept of the political because of how the location and address of the political become fundamentally questionable under modern conditions. Romanticism disempowers the state, the government, indeed all political-public structures and processes, turning them into mere “scenery” or simulacrums that hide an actual or substantial reality. This chapter traces the continued effects of Schmitt’s thought on various diagnoses of a political dialectic of modernity. Each has the changing form and function of sovereign power at its center. The work of Michel Foucault, Giorgio Agamben, Judith Butler, and Zygmunt Bauman shows that Schmitt’s thought is applicable to the paradox by which sovereign power of decision continues to have a latent effect under the conditions of a constitutional state.
Ulrich K. Preuß
This chapter explores Carl Schmitt’s response as a political, legal, and constitutional theorist to the permanent crisis of the Weimar Republic during its short-lived existence between 1919 and 1933. On the foundation of his conceptual edifice, it shows why Schmitt came to the conclusion that the Weimar Constitution did not provide an appropriate political system for the German people in their “natural” form. While the founders of Weimar sought to protect the polity’s diversity and contradictions, Schmitt regarded their constitution as inherently nondemocratic. A focal point of the analysis is Schmitt’s claim that democracy and dictatorship are by no means mutually exclusive. The chapter demonstrates why Schmitt’s faith in the constituent power of a homogenous German people invariably led to his preference for “democratic dictatorship” and a rejection of the Weimar constitution’s system of parliamentary democracy.
This chapter focuses on Carl Schmitt’s years in post–World War II Germany. After being released from the Nuremberg prison for war criminals, Schmitt returned to his birthplace, Plettenberg, and named his house “San Casciano,” invoking a village in Tuscany where Machiavelli spent his final years. Like Schmitt, Machiavelli too was deprived of public office, in the Florentine city-state. While other intellectuals who had sympathized with the Nazis—Martin Heidegger, Gottfried Benn, and Ernst Jünger, among others—returned to the public sphere soon after 1945, Schmitt’s fate was different. This chapter reconstructs Schmitt’s Plettenberg years in letters, journals, and reports from companions and shows how his reputation changed from a “monster” to a myth. Even in his private years, Schmitt remained a public figure, fascinating to friends and foes. The controversies with his fiercest enemies in particular renewed his fame.
Carl Schmitt accommodated himself to the ascendency of democratic thinking in the post–World War I world of the 1920s. No sovereign authority, he argued, could fail to acknowledge “the people” as the constituent power of an established political order. Consequently, democracy and “the political” become synonymous in his Constitutional Theory (1928). To champion democracy, however, Schmitt emphasized the historical distinction between democracy, based on equality and homogeneity of the collective, and liberalism, which features the primacy of the private individual’s liberty. This chapter shows that key to understanding Schmitt’s defense of democracy against liberalism are his notions of representation, acclamation, and plebiscitary leadership, as well as a strong sense of the public persona of the citizen. The chapter argues that even though we shun his reading of democracy today, a full understanding of the liberal-democratic compromise that we now call democracy benefits from a close reading of Schmitt.
Discussions of the relationship between justice and democracy are generally premised on the assumption that they are two different things, only contingently and externally related. As a result, genuine conflicts seem possible whereby we are forced to decide whether democracy should trump justice or whether justice has priority over democracy. By focusing on the work of Jürgen Habermas and Rainer Forst, this chapter aims to show that deliberative democracy can provide a constructivist conception of justice which challenges this premise by explaining the internal relationship between justice and democracy. There is no justice without democracy in the sense that only citizens can democratically determine the specific content of justice. At the same time, there is also no democracy without justice in the sense that democratic outcomes are legitimate only to the extent that they can be understood as proper elaborations of the substantive but abstract ideal of justice-as-impartiality.
Stanley L. Paulson
This chapter traces the intellectual relationship between Hans Kelsen and Carl Schmitt. It is well known that the two legal thinkers had sharply contrasting views on sovereignty, democracy, and the role of unity in the law and in politics. Less well known is Schmitt’s proximity, in his very early work, to Kelsen on certain issues, such as the “is”-“ought” distinction and “points of imputation.” This proximity was short-lived, and the discord between their views increased over time, culminating in the Weimar period in their diametrically opposed views on the “guardian” of the constitution. This chapter reconstructs the evolution of this intellectual antagonism, exploring Schmitt’s arguments under four rubrics: subsumption, the narrow interpretation of “material facts,” the political dimension of the judicial decision, and the neutrality of the Reich president. The thrust of Kelsen’s replies is captured in the idea that Schmitt is engaged in political ideology.
The phenomenon of governance in areas of limited statehood has had a particularly strong impact on the development of international law after 1990. If—on a large scale—states lack the capacity to control the means of violence and to implement and enforce central decisions it is most likely that this bears serious consequences for the international legal order. The chapter inquires into these consequences and analyses the changing discourses about statehood. As a response to the phenomenon of limited statehood, the international community had to address the challenge how and to what extent external actors could step in in order to perform government functions. This triggered debates about the legal basis and about the legal limits for such activities. While the period after 1990 was characterized by approaches which relativized the sovereignty of fragile states, more recent developments point to a re-emphasis of state consent
Most contemporary theories of animal ethics fail to respond to and incorporate the expressed viewpoint of animals in their analyses. Feminist care theory, by contrast, holds that the standpoint of animals must be at the heart of any theorizing about their treatment. We humans must listen to what animals are telling us and formulate our ethical responses accordingly. Major authorities on animal behavior, from Darwin and von Uexküll to contemporary cognitive ethologists, have established that through caring and sympathetic attention and interspecies dialogue animal communications can be readily understood. Feminist care theory contends that we are ethically obliged to heed those communications and to act responsively. We should not harm, kill, eat, torture, and exploit animals because they do not wish to be so treated.
This chapter analyzes Carl Schmitt’s concept of the political from the vantage point of German Romanticism. For Schmitt, Romanticism wasan intellectual attitude that precluded the concept and practice of “the political.” Through an in-depth reading of a preeminent document of political thought in German Romanticism, Novalis’s Love and Faith, this chapter considers and qualifies this view, arguing that “political theology” can be understood as a reaction to the French Revolution rather than as a tradition reaching back to medieval or baroque times. This chapter also argues that Novalis’s famous essay must be seen as a precursor to Schmitt’s own political theory. Overlap exists both in the blend of conservatism and radical constructivism in Novalis and Schmitt and in the interventionist character of both men’s statements on politics. Read as a precursor to Schmitt, Novalis’s philosophy of politics also offers a meaningful critique of Schmitt’s later theories.
Jeremy Waldron’s Law and Disagreement (1999) is a landmark work in jurisprudence and in democratic theory. In retrospect, it also constitutes an intervention into a methodological debate over the aims of political theory, defending the study of institutions over work attending to the ends and ideals of a good society. A crucial insight of LD is the value of equal respect for the judgment of citizens and of legislatures. By entrenching rights in constitutions, and by shifting interpretive authority to courts via judicial review, framers and judges assert moral and epistemic priority over elected representatives and citizens. This priority is unwarranted, given the ineliminable character of political disagreement, and may entail a form of disrespect. Yet Waldron himself provides a sanitized account of legislatures, one that may prevent LD from fully realizing his vision of political political theory.
Jürgen Habermas’s Between Facts and Norms purports to offer a new way of understanding law and democracy in liberal orders. The scale and ambition of the book matches Hegel’s Philosophy of Right but the take-home message is neo-Kantian: our future depends on getting the right balance between the protection of individual autonomy and the promotion of collective solidarity in the democratic self-organization of our political communities. This chapter unpacks and demystifies the difficult arguments of this book and offers a sympathetic interpretation of Habermas’s political philosophy, including its theory of legitimacy and its connection to his discourse ethics. The core claim assessed in this chapter is that the modern legal system cannot function properly without the support of radical democracy.
The struggle over police power and the legitimacy of labor regulations, the establishment of twentieth-century white supremacy, the contest between pro-choice and pro-life forces, and conservative efforts to end affirmative action all illustrate the relationship between law and ideology. Close readings of the cases in these areas, the institutional arrangements behind them, and the social and political dynamics driving the issues onto the courts' dockets demonstrate that ideology is not a free-floating force that independently causes judicial outcomes. A multifaceted analysis, however, also rejects the interpretation that ideology, as distinguished from doctrinal rule, plays no role in judicial decision making. Legal scholarship and popular discussion of the role of the judiciary at times presents a debate about when the intervention of ideology is appropriate in judicial decision making and whether it is more apt to happen at certain historical moments than others. The era of strong contract rights in the early twentieth century in the United States is often understood as a moment when judges simply ruled in favor of their political connections to conservative and propertied business interests.
Richard H. Pildes
At both the macro and micro levels, law and political science have become increasingly intertwined in understanding the causes and effects of democratic institutions and processes. Recent years have spawned greater attention to the way in which the “nature” of democracy in different states, including the United States, is shaped by the specific ways in which the institutional and legal framework of democracy is designed. The focus of promising academic research ranges from the broadest issues of how different forms of power sharing among groups in deeply divided societies affect the stability, acceptance, and performance of democracies, to much less visible issues that nonetheless have considerable influence on the nature of democratic politics, such as how election districts are designed, how political parties choose their candidates, how elections are administered, and how election disputes are resolved. These issues are examined in the present article, along with gerrymandering and campaign finance.
The opposition between religiosity and secularism is the key to both a discourse-historical epochal threshold and the question of the self-understanding of Western modernity. The controversy between Carl Schmitt and Hans Blumenberg constitutes one episode in the long-term, many-faceted debate over secularization. At the core of the controversy is the question of how modern science on the one hand and rational law on the other hand can be differentiated as autonomous realms. At the same time, the anthropological framing conditions for a technologized life world are here at issue. Carl Schmitt began the controversy in the afterword of his last book, which criticized Blumenberg’s Legitimacy of the Modern Age in a basic way. Political Theology II thus also became Schmitt’s testament, in which he formulated instructions about how to read the continuity and identity of his life and work.
Robert P. George
Theories of natural law propose to identify fundamental aspects of human well-being and fulfillment (“basic human goods”), and norms of conduct entailed by their integral directiveness or prescriptivity (“moral norms”). Propositions picking out basic aspects of human flourishing are directive (prescriptive) in our thinking about what to do or refrain from doing (our practical reason)—they are, or provide more than, merely instrumental reasons for action and restraint. When these foundational principles of practical reflection are taken together they entail norms that may exclude some options and require others in situations of morally significant choosing. According to St Thomas Aquinas, practical reasoning is reasoning about what is worth doing and what ought to be done. This article discusses natural law and practical reasoning, morality, virtue, political morality and positive law, natural law and legal interpretation, legal injustice, and the link between natural law and religion.
Matthew H. Kramer
Analytical questions about legal rights concern matters such as the fundamental characteristics of those rights, the relationships between those rights and other legal positions such as liberties and powers and duties, and the basic functions of those rights. Whereas the analytical questions concerning legal rights are squarely within the domain of legal philosophy, the normative questions belong at least as much to political philosophy as to jurisprudence. This article looks at some analytical matters relating to the fundamental features and functions of legal rights, as well as some normative debates relating to the suitable means by which the basic legal rights in a society are to be settled. It examines the views of the American jurist Wesley Hohfeld about legal rights and the controversy over the basic civil liberties and civil rights that are protected or conferred by so-called bills of rights in quite a few national constitutions.
This chapter offers a fresh analysis of the structural significance of antisemitism for the work of Carl Schmitt. Following the end of the Nazi state, Schmitt denied both his National Socialist and his public antisemitic engagement, constructing elaborate autobiographical legends. Many researchers have rejected any relationship between the political-legal theorist’s publications and his antisemitism. Critical voices represented a small minority of Schmitt researchers. This situation has essentially not changed despite controversy sparked by the publication in 2000 of the author’s doctoral dissertation, with its argument that encoded antisemitic ideas play a prominent role in Schmitt’s writings. Scholars skeptical of this argument have insisted that no clear evidence exists for Schmitt’s antisemitism before 1933. But as this chapter demonstrates, Schmitt’s diaries are replete with often crude and vehement antisemitic ideas. Key terms and concepts in Schmitt’s discursive arsenal must now be read in a very different light.