David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar. William Rasch, Carl Schmitt: State and Society

David DyzenhausLegality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (OUP, 2000)

 William Rasch, Carl Schmitt: State and Society (Lexington Books, 2019)  

A lot of people enjoy reading about military history; they may even recreate battles, perhaps using toy soldiers, and ponder what strategies or tactics might have altered the outcomes. Others, myself included, have a fascination for constitution-building. Of course, numerous Americans—and not just scholars or mad hobbyists—treat the Federalist Papers and Madison’s Notes of Debates in the Federal Convention as holy scripture [N.B.: It isn’t.] But one need not do that to obsessively wonder: Did we end up with too much Madisonian influence? Would the Nebraskan, unicameral approach have given us more democracy? To what extent was the entire Federal Constitution an attempt to keep property and power precisely where it was? Were the correct “rights” chosen for the early Constitutional amendments—and, whether they were or not—where the heck do any of those things come from?  

Another beloved period for us constitution nuts is the one associated with “the terror” accompanying the French Revolution. Here, there is: Would one of the Girondin draft constitutions have been preferable? Was there a possible stopping point between the deposing of Louis and the ascension of Robespierre to a position of absolute power? How could any people who were really committed to “the rights of man” end up supporting such a bloody, merciless regime?  

Then, there are the several early 20th Century Russian revolutions. Just mentioning this causes me to think of my perhaps inexcusably exculpatory attitude toward SR leader Viktor Chernov. But I quickly move on to: Would it have been good if Kerensky could have kept the Provisional Government going a bit longer (or was he really just, as Lenin had it, “a little braggart”)? Would a Trotskyan approach have made any difference to the totalitarianism that followed? Was there any reasonable (i.e., non-scorched earth) approach to the “ethnicities problem”? Could there ever have been anything democratic about a “dictatorship of the proletariat”? Is any type of soviet system consistent with what we call democracy in the West? (And if not, is that because what we call democracy is actually a bourgeois outrage?) 

The fourth and most recent of the constitutions that those with the (arguably nerdy) gene I’m talking about find absolutely impossible to stop ruminating on is the Weimar Constitution of 1919. Maybe because this was the most recent of the bunch, and thus allowing more past literature to be available for study, or possibly just because the involved discussants were even more brilliant than their predecessors, the commentarial literature on Weimar is superb. Certainly, the continuing debates have been extremely valuable to those interested in democratic theory, the bases of legality and legitimacy, or the continuing prospects for liberalism. 

Both of the excellent books under review here were likely written by fellow constitution obsessives. Certainly their authors have long been leading scholars on the subjects discussed. Indeed, even some of the material in these two books has been around for some time. The Dyzenhaus came out in 2000, and a healthy section of the Rasch was published in a 2016 Oxford Handbook on Schmitt. But, as both works have managed to continue to stand out in a large and very impressive literature—in spite of taking significantly different approaches to their subject—a simultaneous look at them seems to me instructive. 

One might put contemporary assessments of Schmitt into four major categories. First, there have been unapologetic admirers. However, because of Schmitt’s association with Nazism, members of this group may prefer to go by aliases on Truth Social rather than try to publish in mainstream journals. Second, there are those who focus on Schmitt’s anti-Semitism and the apparently self-serving metamorphosis of his attitudes toward the Nazi Party. Third, we can find writers who (mostly) set aside Schmitt’s personal proclivities and zero in on rebutting his arguments against liberalism and parliamentarism. The fourth group consists of those observers who seem to be primarily interested in whether any sort of livable society might be consistent with an admission that Schmittian attacks on liberalism and/or democracy might be sound—at least to some extent. 

While this taxonomy—as well as my pigeon-holing of the two authors being reviewed—is somewhat oversimplifying, Dyzenhaus’ book fits most comfortably into the second box here and Rasch’s into the fourth. Most important from the perspective of philosophically inclined readers, however, is that both books make essential contributions to the enormous literature on the architecture and scope of Schmitt’s theories. Turning first to Dyzenhaus, the internal contradictions that Schmitt claimed to find lurking within constitutional parliamentarism are put so clearly here that it is hard not to lament the paucity of responses from an author who so clearly disagrees with the subject of his initial portrait. Instead, the two prosecutorial chapters with which Dyzenhaus closes the first section of his book focus on (i) whether Schmitt was ever a really an honest conservative who would have preferred autocracy to have failed in Germany; and (ii) “the vexing question” of Schmitt’s anti-Semitism. There seems to me little doubt that impartial readers will be convinced by Dyzenhaus’ compelling briefs on those two matters. Schmitt was certainly bad person—an opportunistic, anti-Semitic liar with little-regard for anyone but himself. 

But readers may also wonder, even if Schmitt was the devil incarnate, whether his attacks on liberalism and democracy were essentially correct. Is liberalism inconsistent with democracy? Is any acceptable version of democracy, which for Schmitt mostly consists in acclamations by a homogenous group, undone by such individualizing elements as the secret ballot? Is parliamentary democracy nothing but a disguised method of keeping various interest groups in power…while it searches for compromises that nobody will hate too much? Is legal positivism not only worthless on its own but also inconsistent with liberal values? 

Dyzenhaus’ plan here (though perhaps not in all of his extensive work in this area) seems to have been to let his other main subjects, Kelsen and Heller, answer such questions. Unlike Rasch, Dyzenhaus doesn’t delve much into the sources of Schmitt’s religiously tinged communitarianism. Perhaps because of its primary concentration on arguments over the scope and interpretation of the Weimar Constitution’s Article 48, Legality and Legitimacy doesn’t provide a great deal of background on the influences of Weber, Hobbes, or Catholicism (though there’s a bit more of that sort of material in Dyzenhaus’ discussion of Heller). No matter. Whatever may have been Schmitt’s longest term and innermost commitments, it is unsurprising that he either was always or later became completely comfortable with the Nazi takeover of Germany. After all, his theory had long implied that it is during emergencies, moments of “exception,” that sovereignty really breathes spirit into a nation. 

In a sense, it would be remarkable if any jurist holding such a theory found for a party resisting the act of a would-be tyrant having a lot of firepower. While Dyzenhaus generally leaves the responses to Schmitt’s withering attacks on liberalism and democracy to Kelsen and Heller, in his accounts of those rebuttals he again only occasionally pauses to consider the overall state of the debate. We are told, of course, that Schmitt largely restricted the possible benefits of a constitution to an identification of who/what must deal with emergencies and that legal orders can only be based on decisions, since norms can never come with their own interpretations. And Dyzenhaus points out (p. 58) that in Schmitt’s view, while law retreats, the state remains. Because for Schmitt, it is always authority, and neither truth nor compliance with any norm, that generates lawful compulsion. 

However, readers are generally left to their own devices to determine the plausibility of such claims. When Dyzenhaus turns to Kelsen’s response, we are again treated to a meticulous display of the arguments and attitudes found in Kelsen’s Pure Theory of Law. I imagine that a substantial percentage of readers will join me (and perhaps Schmitt and Dyzenhaus as well) in feeling there is a sort of impotency to Kelsen’s “scientific” approach. [I note that these sections reminded me of a remark made by Fred Dretske in an interview shortly before he died. The philosopher there said, “I think it’s all right (in fact essential) to know all that [neurophysiological] stuff, but I don’t quite see how it answers what my questions are – how, for instance, reasons (what you want and believe) explain behavior.”] Schmitt had argued that there will be times when no norm, not even some allegedly basic norm, can tell us what we must do. In fact, he suggested that there’s a clear sense in which those moments are EVERY MOMENT, since it is not only what to do in emergencies that matters, but also the determination of whether one is actually IN an emergency. 

Both of those types of decision are claimed to be exclusively the provenance of the sovereign. After all, while a rule R (or a norm found somewhere “above” it) may address the issue of when R should be applied, it would be courting contradiction to ask any rule to tell us what to do when it is itself not applicable. Unfortunately, in lieu of direct responses to such parries, Kelsen seems to meander around his extremely dense theory like a mad clockmaker insisting that if we could only learn to see how escapement governor #1411B fits into its uniquely coated casing, we would understand why the entire masterpiece never has to be either wound up or plugged in. Kelsen repeatedly pushes these “scientific” aspects of his theory, but as Dretske pointed out, even if the scientist’s work is crucial in the eyes of other scientists, philosophers—and also those regular people who are just looking for tools to decide between dictatorship and self-government—have other fish to fry. No matter how popular Kelsen’s positivism has later become, I doubt very much that he ever convinced a single Schmittian that he or she was barking up the wrong tree. 

Dyzenhaus himself accuses Kelsen’s critique of the Constitutional Court’s decision regarding the takeover of Prussia of being both question-begging and self contradictory, but he is reluctant to find Kelsen’s entire approach to law puerile. This reluctance seems to me to be based Dyzenhaus’ suspicion of the thesis according to which Weimar was doomed whatever the Constitutional Court found. In fact, a main concern of his book is to insist that “One should not equate the course events took as a result of decisions made in a time of crisis with some kind of inexorable logic. To make this equation is to conclude that Weimar was the antechamber of Nazism, just a prelude to what had to happen.” (p.131) The problem with that contention is that the two questions: 

  • Would Hitler’s rise to absolute power have occurred whatever the Constitutional Court decided regarding the Prussian coup?
  • Is it sensible to dismiss any theory of law that has no manner of distinguishing normal and (even allegedly) extraordinary times?

 may both be reasonably answered in the affirmative. There are moments in Dyzenhaus’ painstaking analysis during which his critique of Kelsen’s Pure Theory almost takes on the same sort of phantasmagoric aura as its subject. 

After all, even refutations of purely theoretical work may seem sophistic when a nuclear bomb is falling on one’s city. It’s quite clear at any rate that neither Schmitt nor his followers would be much moved either by Dyzenhaus’s summary of Kelson’s theories or his criticisms of them, and this in spite of the lucidity and exhaustiveness of both. On the other hand, I can’t say to what extent Kelsen’s followers would find Dyzenhaus’ arguments against their hero compelling. But should any of them do so, it may be worth noting that I understand Dyzenhaus—like Hart before him—has become a bit friendlier to Kelsenian positivism in his later work.) 

The summary contained here of Kelsen’s 1929 book, The Essence and Value of Democracy is again absolutely excellent. Dyzenhaus carefully draws out the parallels and tensions between Kelsen’s liberty maximizing conception of majoritarian democracy and his legal positivism. He notes that the well-known difficulty of protecting minority rights within majoritarian systems was highlighted by Kelsen, and one can see from Kelsen’s discussions of the point of plebiscites, the importance of parties, and the nature of parliamentarism, that he had at least one foot in the real world. Unfortunately, as Dyzenhaus nicely puts it, “Kelsen had the Pure Theory sitting on his shoulder, chattering constantly into his ear the lesson of the Pure Theory: politics and ethics are the realm of the irrational” (p. 159). 

The third and final subject of Dyzenhaus’ book is Herman Heller, the somewhat lesser-known scholar who he makes the hero of his book. Heller was a Jewish, center-right social democrat who died of a heart attack in Spain in 1933, possibly as a result of injuries he sustained during WWI. After a youth involved with the Austrian Wandervogel movement, he became something of a firebrand, which can be ascertained from his testy relationship with Kelsen, even at times that the two men were largely in agreement. Dyzenhaus summarizes their basic similarities and differences thus: “Heller argued with Schmitt and against Kelsen that all conceptions of law are fundamentally political and tied to particular historical and social contexts. However, he shared with Kelsen a commitment to democracy, to the liberty of the individual and to social equality” (p. 163). He sought to “defend democracy and law against the likes of Schmitt…to reconstruct legal theory, not to destroy it from within. His principal legal target was Kelsen's positivism….But Schmitt remained Heller's principal political target” (p. 163) 

Dyzenhaus points out a basic similarity between Heller’s and Schmitt’s objections to Kelsen’s positivism. Both critics realized that if one consistent formal system is just as good as any other, there can be nothing in Kelsen’s Pure Theory to delay or even discourage a move toward dictatorship. That’s one reason that on Heller’s view the legitimacy of a rule cannot be entirely a function of its formal characteristics, its position within the tower of norms. Also needed are legal principles to which we must resort “in order to understand the force of positive law and to interpret it appropriately” (p. 165). Heller took the view that, since the Kelsenian positivist cannot distinguish between a legitimate government and a powerful band of thugs, it lacks grounding principles of lawfulness that are unrelated to position with the normative architecture. But Heller also insisted that no such principle can transcend the culture in which it arises. Rather, he took legal norms to be dialectical syntheses of positive law and the societal practices of a particular culture at a particular time. 

Heller disputed Schmitt’s claim that liberalism and democracy are in conflict by insisting that liberalism’s understanding of legality could never be shorn from its democratic roots, because the foundation of both is the social contract. I will confess that Heller’s responses to Schmitt’s critique of parliamentarism seem to me mostly ineffective, but this may be partially a result of Dyzenhaus’ desire to carefully march through a detailed exposition of Heller’s views on everything under the sun—from economics to epistemology—rather than focus on the validity of his most telling responses to Kelsen’s and Schmitt’s most provocative assertions. As a result of this stylistic choice, while the exposition is undeniably thorough and meticulous, it also sometimes comes off a bit like a dissertation. 

With respect to the juridical arguments regarding the Prussian coup, however, we do learn that “on [Heller’s] view, and against Schmitt's, in a Rechtsstaat with its separation of powers, one cannot localize sovereignty in any particular state representative. But against Kelsen, he held that sovereignty is still something that transcends the positive law in that the state can decide to act legally against the law for the sake of law” (p. 198) I won’t here spend much time on Dyzenhaus’ concluding chapter, which is largely focused on John Rawls, and whether that philosopher, Jurgen Habermas, or Heller provides the most cogent responses to Schmitt, except to blab the spoiler that Rawls is condemned as too Kelsenian and Habermas, while thought to be on the right track, is claimed not to achieve Heller’s level. I will note too that while I quite agree with Dyzenhaus that “A democrat must concede that democracy needs to guarantee rights of participation in democracy” I think he errs when he suggests that anything important follows from the reasonable suggestion that one must “also concede that those rights are part of the parcel of the rights of the individual first identified by liberalism” (p. 255). 

My concern is that I take a consistent democrat to be required to discard all faux (i.e., non-democracy-facilitating) “rights” from any such “parcel.” That, however, is the main theme of my book on this subject, and I cannot rehearse the matter here. I will add only that, after reading his section on Heller, I wholeheartedly agree with Dyzenhaus’ assessment of the high quality of that theorist’s attacks on both positivism and decisionism. I believe this book would be quite valuable even if it did nothing other than point out the many substantial merits of Heller’s work. 

Turning to Rasch’s book, as indicated above, it includes a treasure chest of material on the varied stimuli that produced Schmitt’s mature theories. In addition to Weber and Strauss, there are interesting digressions on Hegel, Figgis, Bodin, Jellinek, Sieyes (from whom Schmitt may have heard that states must always precede and survive any constitutions referring to them rather than the reverse), Franz Oppenheimer, and many others. But even more illuminating than the discussions of the ideas of individual thinkers are Rasch’s passages on what Schmitt carried away from his Catholic upbringing and voluntaristic sympathies. 

Remember, for voluntarists (like, e.g., Duns Scotus) cognitive acts must always precede their contents: it is not something’s goodness that makes God love it, but God’s love that makes that thing good. (Interestingly, Schmitt’s voluntaristic relativism put him in the same camp as Kelsen on this matter: in fact nearly every principal player in both books is a Hobbesian in at least that regard.) The point that Rasch drives home is that Schmitt’s mature political theories were almost inevitable given the strength of those influences. For, as Rasch puts it, “On Schmitt’s view the state was the understudy of the church, and when the church stumbled in the sixteenth and seventeenth centuries, a new star was born. But even the most sparkly of ingenues eventually fades and is replaced. By the twentieth century the state had apparently grown old and toothless” (p. 53) 

Thus, a new sort of sovereign, one very unlike the Swiss watch it would replace, was evidently required. But it could not be shorn of certain essential characteristics of the earlier version, including the capacity to provide succor of the type Schmitt seems to have required. Rasch’s attention to intellectual antecedents makes it easy to see how Schmitt’s famous Friend/Enemy dichotomy might have stemmed from what may now seem like parochial doctrinal battles. (It is also interesting to consider in the context of the history of religion, Georg Jellinek’s earlier insistence that the assertion of “rights of conscience” first occurred neither among the ancient Greeks nor in the writings of John Locke, but from a petition made by Congregationalists to James I in 1616 that was later picked up by Mayflower Pilgrims, English Levellers, and Roger Williams. 

“State and Society” was not a randomly chosen subtitle for Rasch’s book. Much of the work is a meditation on how those two concepts have differed—not just for Schmitt, but since Thucydides. In fact, the reader may sometimes find it hard to keep all the various historical strands straight. For example, while musing upon an interpretation under which liberty can obtain only via citizenship, but citizenship is taken to conflict with at least one sort of democracy (the “elitist” sort), I began to find it difficult to weave the diverse threads together coherently. In fact, one can sometimes get the feeling that Rasch has intended his book primarily for cognoscenti, as when he confesses that the wording in some passage “of course…deliberately recalls Leo Strauss’s argument concerning the discovery of nature,” (p. 97) or when he invites his readers to enjoy one of Hegel’s “double paradoxes.” 

Take another case. From George Sorel (via Walter Benjamin) we get the distinction between “force, represented by the power of the state, and [divine] violence, [an] explosive cleansing revolutionary destruction” (p. 94). Now, I suppose there is little doubt that Schmitt was much keener on the latter type, but even if the first sort is thought to be “utterly reprehensible,” one may wonder how violence which is “law-destroying” can be understood to be “the exclusive basis of law.” Too, the claims that 

(i) community interests take precedence over presumed individual rights and preferences, but 

(ii) group determinations should be considered powerless when in conflict with a dictator’s contradictory command, may, at least at first, seem conflicting. 

I believe, however, that most of these puzzles will sort themselves out for those readers who take the time to digest Rasch’s nuanced offerings. Furthermore, if Rasch’s story of the conflicts between state and society throughout history is sometimes hard to follow, that is clearly a function of its nearly Freudian depth. After all, crystalline country brooks don’t often flow from Hegelian headwaters, and a lot of what is most confusing here derives from such murky sources. 

For example, it is bound to be difficult to comprehend all the differences between individuals and their homelands when the very nature of personhood is thought to be altered by its participation in the geist of that “higher unity,” i.e., with “the march of God in the world.” But there are plentiful nuggets here even for those of us who are relatively inept at juggling Hegelian theses and antitheses. I was particularly intrigued by a section regarding the precedence—both logical and temporal—of community land distribution over any ostensible individual right to private property. And I have little doubt that contemporary debates over the connections between territories and the distribution of voting rights could be beneficially informed by that material. 

As Rasch nicely puts it (following Bobbio), the conflict between liberalism and democracy is a battle for hegemony between liberty and equality. This conflict, however, is taken by both Bobbio and Rasch (following Hegel, Lorenz von Stein, and Marx) to center around the fact that equality of opportunity never amounts to equality of goods attained (i.e. the supposed REAL equality), but is only some sort of flimsy FORMAL equality before the law. Thus, a truly liberal society must be inegalitarian, promising only the bare RIGHT to obtain private property, but none of the actual goodies themselves. 

I think, though, that the struggle between democracy and liberalism actually goes somewhat deeper than that sort of analysis suggests—and that Schmitt was well aware of the fact. For even if we give “equality” the more restrictive, formal meaning within both democracy and liberalism, the incompatibility remains. Liberalism promises equal opportunity, equality of lawful process, etc. And even if we assume (rightly or wrongly) that such a thin equality is all that matters, it will still be the case that majoritarian democracy in a jurisdiction where most people are prejudiced is inconsistent with every sort of liberalism. One must either cripple democracy, by severely limiting the issues over which it range, or give up liberalism entirely. That is the substance of Schmitt’s deeper argument, and Bobian concerns about inequality of outcomes are beside this more trenchant point. 

Furthermore, disparate outcomes can occur both within and without democratic rule. Schmitt was, of course, no friend of liberalism. But, as democracy doesn’t necessarily entail liberal parliamentarism of the sort prescribed by the Weimar Constitution (with its separation of powers, assertions of human rights, and faith in the usefulness of public debate), one can wonder whether another, radically different form of democracy might be defensible—even in Schmitt’s eyes. One way of forging that peace (my own way, admittedly, but perhaps one that bears a slight resemblance to the Hegelian approach suggested by Hans Lindahl in the generous summary that Rasch here provides) is to manipulate the concept of homogeneity to suit Schmitt’s purposes. Who, exactly, are my friends, i.e., those exclusively entitled to vote because they are the true citizens of my country? Suppose they are taken to include only those who have the same basic (i.e., bellicose, nationalistic) interests at heart as I do, i.e., those who need agree with me on all and only such “essential” matters. Now, it will follow that if we restrict the subjects upon which the “general will” may assert itself to just those “high matters of state,” there can be no disagreements, no minority viewpoints to worry about at all. In this way, we easily reach the “absolute identity of leader and followers” (p. 198) 

If such a tack seems preposterous, we should remember that it is not terribly different from the position asserted by Rousseau regarding the compounding of his volonté générale from the (not-so-personal) thoughts and desires of the citizenry. Under such a conception of a self-governing state, formal democratic rules aren’t needed at all: a single individual with a strong grasp of the zeitgeist can make all the decisions without threatening “democracy.” Such a conception allows Schmitt to insist that it is only a certain type of “deistic, self-running” democracy, a flaccid, rule-bound parliamentarism, that ought to be reviled. If Heller comes off as the hero of Dyzenhaus’ book, perhaps it is the trio of Lorenz von Stein, Chantal Mouffe, and Jimmy Carter who jointly receive those laurels here. 

Stein, a contemporary of Marx who was a (non-revolutionary) socialist, was a favorite of Schmitt’s because of his early recognition of the limited worth of individual and special interests when compared with the fragrant, Hegelian concept of state. And he may be congenial to Rasch for being widely considered the father of the welfare state and a continuing inspiration to progressives everywhere. Not least of all, Stein was candid about what he took to be the insolubility of a number of paradoxes of democracy: he thought only death could crack those codes. 

Mouffe, a neo-Schmittian, has tried to soften the Friend/Enemy dichotomy by advocating a Friend/Adversary notion for domestic squabbles. That pairing seems to her more amenable to sufficiently agonistic battles that would not require the shedding of actual plasma. (Robert Talisse has made a similar plea in his Sustaining Democracy.) 

Former President Carter, sometimes categorized as a populist himself, was an evangelical Christian who had an innate sense of the dangers to a state of the growth in intensity of domestic, us/them divisions. In his most famous speech (the one with the actually never-used M-word), Carter made it clear to the few inclined to listen that the main problem facing the U.S. during his administration was neither stagflation nor any Middle-East theocracy, but something far more heinous than either. 

But while all three of Rasch’s heroes differed from Bob Dylan’s Mr. Jones in not only knowing something was happening, but also knowing what it was, none really seemed to figure out just what to do about it. Sadly, Rasch ultimately finds himself in the same boat. He laments, “The sad part of this whole story…is that, despite all the clever things I have ventriloquized through the voice of Carl Schmitt, I do not know what is capable of solving the problem either” (p. 203). Whether or not he managed to do that in his book, State and Society, like Dyzenhaus’ Legality and Legitimacy, is a valuable addition to the ceaselessly mushrooming literature on Schmitt and Weimar.

About the Author

Walter Horn is a philosopher of politics and epistemology.

His 3:16 interview is here.

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