21 Sep Carl Schmitt and Emergencies, a Really Fast Comment
Eric Posner, over at VC, remarks on the continuing attention to Carl Schmitt, and indeed the increasing attention to him within the American jurisprudential community:
Why do people like me and Sandy Levinson keep talking about the Nazi philosopher Carl Schmitt? Schmitt was skeptical that a parliamentary democracy can handle crises: it can only role over and let the executive act. You can read Levinson here (marred only by the pervasive tone of indignation: what exactly does he (realistically) expect?), or for a scarily timely scholarly treatment of Schmitt and our administrative state, see this paper by Adrian Vermeule.
For my own part, I have moved the other direction. I came to Schmitt really, really early on, in the first wave of translations that brought Schmitt into English-language political theory. This was via the critical theory journal Telos, which (to Steve Holmes’s dismay in, for example, his not-so-good book on illiberalism and particularly in a review from the period in the New Republic that called out Telos by name) did many of the initial translations as well as translations of Schmitt’s European pupils of the post war period. I immersed myself in Telos’s Schmitt studies in those years, in the late 1980s and early 90s, as a member of the editorial board. But at the moment when Schmitt started to enter the US legal academy, I found myself moving away from Schmitt studies. (I don’t, for the record, think of him as a “Nazi” philosopher; I think of him as a reactionary as to philosophy, and a quite nasty opportunist as to personal qualities who never learned anything morally salutary from his careerist embrace of the Nazis. But there are a great many important thinkers who could not be accounted morally ‘good’ and yet are worth reading – anyway, this is a discussion had endlessly.)
My reason for moving away from Schmitt as a means of explaining or understanding political or legal theory in America is that the connection is simply historically too contingent. Schmitt’s clarity as to things like emergencies can be found in many forms of philosophical discourse, and I think it is more useful to locate them in sources that have a greater historical connection to the intellectual roots of the debates in America, if the purpose is to understand those debates in an American context – Thucydides, or even Machiavelli. Put another way, I don’t really think that Schmitt is comprehensible outside the context of Weimar. Nothing is weirder or more intellectually misplaced to me, these days, than to read somewhere about the “Schmittian” approach to emergency in the Bush administration, for example. No one in the Bush administration had ever read Schmitt, ever heard of Schmitt, and to describe the approach as Schmittian adds, in my view, very little intellectually to understanding what it thought it was doing, or what it was doing. This is not to suggest that it did not have a strongly held view of the role of executive power, particularly in an emergency, nor is it to deny that Schmitt had interesting things to say about emergencies and parliamentary democracy. But the one does not really connect with the other, at least not in the way that makes it useful for American legal theory. We are not Weimar.
If this means that I think there are limits on ahistorical application of ahistorical political theory, well, at least in the context of a philosopher who cannot help but be located in everyone’s brain as forever about Nazis and Weimar, yes.