An interest in Carl Schmitt

Ex: http://majorityrights.com/

Last month I put up a brief post titled Leviathan Rising.  It speculated on the general policy direction by which the transformation to a Leviathan superstate might be effected.  Of course, the times would be characterised by trauma injury to European societies made raceless, and therefore loveless and powerless - for without love between the people there can be no strength in them.

The approach of this condition we can all surmise from the evidence about us.  We read and write about it every day.  But let’s venture beyond.

In my post I argued that the “detachment into domestic policy blandness and irrelevance, and the shift to action abroad” would be the sign that the totalitarian Rubicon had finally been crossed.  But actually, I’ve just come across a better formulation from Leo Strauss in writings about his teacher, the great German jurist Carl Schmitt: “[It] would be a world of entertainment without politics and the possibility of struggle.” Recognise that?

Now, sixty-three years after the extinction of the system he helped to theorise, Schmitt is still the pre-eminent authority on matters of total dominion?  Addressing the riddle of how to despatch liberal democracy without triggering what Habermas has termed “the legitimation crisis”, he formulated a legal and philosophical legitimisation for dictatorship.  This he did through a number of influential works in the years up to 1933, when he finally joined the Nazi Party.  His thought, however, reduces to four core concepts:-

1. The concept of “Exception” from the normal restraints on state power in the absence of order.

2. The concept of “The Political”, as the dominion or theatre of action for the state (and the state alone).

3. The concept of “friend/enemy”.  In the racial sense applying in National Socialist Germany, this could be seen as the division into in-group/out-group from the standpoint of the state.  In our age, the “enemy” is European Man.  But it need not be racial, of course, and indeed is really just a means of defining the activism of “The Political” (or the interests of the elite).

4. “Nomos” or the historic dynamic out of which grew the European Age or Global Order of the 18th and 19th centuries, which Schmitt idealised and at the summit of which placed the development of the sovereign state.

It should be no surprise that for well over a decade now Carl Schmitt has been an object of study and fascination both on the liberal-left and the Straussian right.  I will explore some of his ideas in greater depth later on.  But to give you a flavour of the man I’m going to end this post with the transcripts from his interrogations at Nuremberg.

He was arrested by the Russians in Berlin in April 1945, interrogated and then released.  But six months later he was arrested by the Americans at the instigation of German Jews in OMGUS (Office of Military Government, United States), and interned until March 1947.  He was then interrogated by a prosecutor for the War Crimes Trials, Robert M. W. Kempner, on three occasions.  Here are the full transcripts of those interviews:-

Kempner: You do not have to testify, Professor Schmitt, if you do not want to, and if you think you are incriminating yourself. But if you do testify, then I would be grateful if you would be absolutely truthful, would neither conceal nor add anything.  Is that your wish?
Schmitt: Yes, of course.
Kempner: And if I come to something you might find self-incriminating, you can simply say you prefer to remain silent.
Schmitt: I have already been interrogated by the C.I.C. [U.S. Army counter-intelligence] and in the camp.  I would be glad to tell you all I know.  However, I would like to know what I am being blamed with. All previous interrogations ultimately ended in academic discussions.
Kempner: I do not know why anyone else has questioned you.  I will tell you quite candidly what I am interested in: your participation, direct and indirect, in the planning of wars of aggression, of war crimes and of crimes against humanity.
Schmitt: Planning wars of aggression is a new and very broad concept.
Kempner: I take it for granted that, as a professor of public law, you know exactly what a war of aggression is.  Do you agree with me on the fact that Poland, Norway, France, Russian, Denmark, Holland were invaded? Yes or no?
Schmitt: Of course.
Kempner: Did you not provide the ideological foundation for those kinds of things?
Schmitt: No.
Kempner: Could your writings be so interpreted?
Schmitt: I do not think so - not by anyone who has read them.
Kempner: Did you seek to achieve a new international legal order in accordance with Hitlerian ideas?
Schmitt: Not in accordance with Hitlerian ideas and not sought to achieve but diagnosed.
Kempner: What is your attitude toward the Jewish Question, in general, and how it was handled by the Third Reich?
Schmitt: It was a great misfortune and, indeed, from the very beginning.
Kempner: Did you consider the influence of your Jewish colleagues, who were teachers of international law, a misfortune?
Schmitt: With the exception of Erich Kaufmann, there were no Jewish legal scholars there [in Nazi Germany].  He was a belligerent militarist.  He originally coined the phrase “The social ideal is the victorious war,” in “Die Clausula rebus sic stantibus.”
Kempner: Now, however, Erich Kaufmann is not here, but you are.
Schmitt: I do not want to incriminate him.  I also would not like to create the impression of incriminating this man.
Kempner: Would you say there was a definite discussion between international and constitutional law influenced by Jews and that which you taught and advocated?
Schmitt: The standpoint of Jewish colleagues was not sufficiently homogeneous for that.
Kempner: Have you ever written such things?
Schmitt: I wrote only once that Jewish theorists have no understanding of this territorial theory.
Kempner: Where did you write that?
Schmitt: In a little essay in the Zeitschrift fur Raum-Forschung, 1940-41.
Kempner: What was that essay called?
Schmitt: I cannot recollect the title.
Kempner: Who published the journal?
Schmitt: The Reich Office for Raum Research.
Kempner: How long is the essay?
Schmitt: Volkerrechtliche Grossramordnung had 50 large octavo pages.
Kempner: How many editions?
Schmitt: I believe 5 or 6.  The essay was reprinted there from the Zeitschrift fur deutsche Raumforschung, published by Deutscher Rechtsverlag, a press of the National Socialist League of Jurists.
Kempner: It had a swastika on its publisher’s insignia?
Schmitt: Yes, of course.
Kempner: Reading your writings creates a completely different impression from the one you are now providing.
Schmitt: If one reads them completely, they have very little to do with the Jewish Question.
Kempner: You admit, however, that it [Volkerrechtliche Grossramordnung] is clearly an international legal theory of Lebensraum?
Schmitt: I call it Grossraum.
Kempner: Hitler was also for Grossraum.
Schmitt: All of them were probably for it, including the citizens of other countries.
Kempner: A reading of this essay shows it was written in the purest Hitler syle.
Schmitt: No.  I am proud of the fact that since 1936 I had nothing to do with that.
Kempner: Previously, therefore, you wrote in the Hitlerian style.
Schmitt: No, I did not say that.  Until 1936 I considered it possible to give meaning to these catchwords.
Kempner: You assumed the editorship of various journals, which previously you had not.  Die deutsche Juristenzeitung, for example?
Schmitt: From 1934 to 1936.
Kempner: Would it not have been better to have avoided becoming involved with that?
Schmitt: Yes, now one can say that.
Kempner: The accused is confronted with his publication Volkerrechtliche Grossramordnung, 4th Edition, and the following passage from page 63 is read to him: “The Jewish authors had, of course, as little to do with the previous development of Raum theory as they had with the creation of anything else.  They were also here an important cause of the dissolution of concretely-determined territorial orders.” Do you deny that this passage is in the purest Goebbels-style?  Yes or no?
Schmitt: I do deny that the content and form of that is in Goebbels’ style.  I would like to emphasize that the serious scholarly context of that passage should be taken into consideration.  In its intent, method, and formulation it is a pure diagnosis.
Kempner: Do you want to say anything else?
Schmitt: I am here as what?  As a defendent?
Kempner: That remains to be determined.
Schmitt: Everything I stated, in particular this passage, was intended as scholarship, as a scholarly thesis I would defend before any scholarly body in the world.
Kempner: Here, however, we are before a criminal court.  You were the directing, one of the leading jurists of the Third Reich.
Schmitt: Someone who in 1936 was publicly defamed in Das Schwarze Korps [the S.S. journal] cannot be described in that fashion.
Kempner: How does your interpretation fit with the fact that, after 1936, you delivered lectures financed by the Nazi Reich in Budapest, Bucharest, Salamanca and Barcelona; in the notorious espionage and propaganda institute, “The German Instiute in Paris,” and other places.  Did you deliver lectures?  Yes or no?
Schmitt: Yes, I did deliver lectures.  They were not paid for.
Kempner: Who paid for the trip?
Schmitt: Part [was paid] by the inviting societies, part by German agencies.
Kempner: Therefore: the Nazi Reich.
Schmitt: That was a forum for me; I had no other.
Kempner: You see that there is in this fact of your defamation, on the one hand, and your lectures, on the other, a certain contradiction very difficult for me to comprehend.
Schmitt: If you are interested in an explanation, I would be pleased to give you one.  This is the first conversation I have had about it since 1933.  I would like to discuss that.
Kempner: It is related to what extent you provided the scholarly foundation for war crimes, crimes against humanity, the forceful expansion and widening of Grossraum.  We are of the opinion that the executing agencies in the administration, the economy and the military are not more important than the men who conceived the theory and the plans for the entire affair.  Maybe you would like to write down what you have to say.  To what extent did you provide the theoretical foundation for Hitlerian Grossraum policy?
Schmitt: I will write it down.  This is thus the question to be answered.

(2)
Kempner: Were you so kind to write your answers?
Schmitt: It took a long time, because I was given a table so late.  May I give it to you?
Kempner: I must, of course, read through this later.  Who invited you to the German Institute in Paris?
Schmitt: The director, Dr. Epting, on the suggestion of certain gentlemen whom he knew.  The lecture was a pretext for the trip.  I was accompanied by Pierre Linn, a Jewish friend and his wife.
Kempner: I am interested in the German Institute.
Schmitt: I had very little to do with that.  The director was Epting.  The motivating force behind my invitation was Dr. Bremer.  He had many friends, including Frenchmen such as Alfred Fabre-Luce.
Kempner: Would you be so good as to sign the pages with your initials C.S.?  Are all the facts correct?  Then please write: The truth of the above statements is pledged on my word of honour.
Schmitt: Yes.  May I ask something else?
Kempner: What questions do you still have?
Schmitt: You wanted to lend me Volkerrechtliche Grossramordnung.
Kempner: You still have not received it?
Schmitt: No, I still have no answer from my wife.  May I request that my wife send me the manuscript of the lecture on the “Lage der europaischen Rechtswissenschaft”?  The manuscript is still with the publisher.  The lecture was basically intended for a Fetschrift for Popitz.  I have not said anything that is not contained in the manuscript.  That provides perhaps the best account of the remarks I made in Bucharest, Budapest, Madrid, Barcelona Coimbra.
Kempner: Have you now been able to reconcile yourself in any way to the role you played in the Third Reich and in the preparation of criminal offenses, as I interpret them?
Schmitt: Here we are not really disputing facts.  I accept them.  It is a question of interpretation and legal evaluation.  As a long-standing professor of jurisprudence, I cannot stop thinking.
Kempner: Nor should you.  To clarify again what the theory of the public prosecutor is: Did you participate in the preparation, etc. of wars of aggression and in other punishable offenses related to these at the point of decision-making?  What is your answer to that?  Could you state it concisely in a single sentence?
Schmitt: I neither served in a decision-making capacity, nor did I participate in the preparation of wars of aggression.
Kempner: Our theory about the term “point of decision-making” is as follows: is not one of the leading university professors in this field as least as important in the decision-making-process as other high state or party officials?
Schmitt: Also in a totalitarian state?
Kempner: Yes, particularly in a totalitarian system.  And furthermore: what we understand by wars of aggression is very clearly expressed in the decision of the IMT [International Military Tribunal in Nuremberg], with which you are familiar.
Schmitt: Yes, it would be good if I could have the complete text.  I have no material at all.  I have one final question, which is not connected with the preceding.  You mentioned the name Radbruch.  I hardly know him.  If you want to inquire about my activity as a professor during the last 10 years, I would request that you question colleagues who really have known me.
Kempner: Who, for example?
Schmitt: Carl Brinkmann.  He was in Berlin until 1944 and is now in Erlangen.
Kempner: I will be glad to question him.  Was he a party member?
Schmitt: No, otherwise he would not now be a professor in Erlangen.  I do not believe he was a party member.  It may not be pleasant for him to do that.  The Dr. Carl Schmitt myth is pure myth.  Carl Schmitt is quite a peculiar individual, not just a professor; he is also a composite of various other individuals.  I observed this when I was interrogated by Dr. Flechtheim.  You can inquire about that.
Kempner: I have my sources.
Schmitt: Radbruch is a politician.  He sees things in a particular way and does not understand that a person can sit quietly at a desk.
Kempner: Did Rousseau leave his desk?
Schmitt: No.
Kempner: Who else did not leave his desk?
Schmitt: Thomas Hobbes.
Kempner: It is very difficult to render a criminal judgment.
Schmitt: May I speak frankly?  I have now been in solitary confinement for 3 weeks ...
Kempner: You do not want to be alone?
Schmitt: I would like to be even more alone.  All possible questions were asked of me at the time I was placed under arrest.  I said then only: I would like to be able to speak about my case from my own perspective.  I desire only to clarify things to myself.  But my name, my physiognomy is too famous for me to be left alone.  I had hundreds of students in all countries, thousands of listeners.
Kempner: To the extent that it relates to audience, your reputation vacillates in history.
Schmitt: That will always be the case when someone takes a position in such situations.  I am an intellectual adventurer.
Kempner: You have the blood of an intellectual adventurer?
Schmitt: Yes, that is how thoughts and knowledge develop.  I assume the risk.  I have always accepted the consequences of my actions.  I have never tried to avoid paying my bills.
Kempner: If, however, what you call the pursuit of knowledge results in the murder of millions of people?
Schmitt: Christianity also resulted in the murder of millions of people.  One does not know unless one has experienced it oneself.  I by no means feel, as do many others, an innocent victim to whom something horrible has happened.
Kempner: But this is no comparison.  And is it not, simply stated, a criminal investigation of your personal make-up?
Schmitt: I can tell you a great deal about that.  If I were asked, I would be glad to express my honest opinion.
Kempner: I would like to ask you something without touching on your own matters.  Let us for a moment consider a case from another area.  You are familiar with Mr. Lammers and, as a constitutional lawyer, his position.  You know what a Reich Minister is?
Schmitt: Personally, I have only seen him once, in 1936.  He was Chief of the Reich Chancellery, where everything was concentrated.
Kempner: How do you explain psychologically that a man like Lammers, as an old professional civil servant, signed hundreds of horrible things?
Schmitt: I do not understand that.  I have not done that.
Kempner: That does not relate to you, you avoided such things?  How do you explain that a diplomat like von Weizsacker, as a state secretary, signed hundreds of such things?
Schmitt: I would like to give you a nice answer.  The question has great significance, a distinguished man like von Weizsacker… Only I must protect myself…
Kempner: This theme could get us into constitutional matters.  At present, I am not questioning you about Lammers personally, but about the position of Chief of the Reich Chancellery in a totalitarian state.  I am asking you neither as a defendent nor as someone accused or as a witness, but as a constitutional lawyer.  I am asking you here purely as an expert, why this position is more important than that of another Reich Minister?
Schmitt: Perhaps Bormann was more important.
Kempner: That is not completely correct.  The position of Bormann first became important in 41-42.
Schmitt: I would like to formulate this for you as best as possible in writing.
Kempner: In the Bismarckian Reich I would have stated: Lammers had the key to lawmaking in his hand.  In the dictatorship he had more in his hand: the handle to the door of the dictator.  Does this explain the significance of his position?
Schmitt: Yes.
Kempner: Write that up in a small essay.

(3)
Kempner: How are you, Professor Schmitt?  Have you written something?
Schmitt: Yes.  I have brought along both written elaborations and have signed them.  I no longer recall the exact wording of your question: “Did you participate in the preparation of wars of aggression, etc.”
Kempner: Do you pledge the accuracy of your statements on your word of honour?
Schmitt: On my word of honour I pledge the accuracy of the statements from pages 1-17.  That is a written elaboration, a legal opinion.
Kempner: Please write at the end of your elaboration: I pledge that I have given the above legal opinion according to the best of my knowledge and conscience.
Schmitt: Yes.  The legal opinion is on pages 1-15.
Kempner: I will examine this very closely.
Schmitt: I am happy to have found a reader once again.  In general, my writings have been read very poorly.  I fear the superficial reader.
Kempner: I will read through it not only form the standpoint of criminal law, but also from the standpoint of constitutional law.
Schmitt: I have written it with great interest.  Can it be indicated that I did not do that on my own initiative?
Kempner: Professor Carl Schmitt made the assessment of the constitutional position of the Reich minister and chief of the Reich chancellery at the instigation of the interrogator.  Are you afraid of doing that on your own initiative?
Schmitt: Not that.  Maybe it is improper in my circumstances.
Kempner: Prof. Carl Schmitt submits, in addition, his own comments on the subject of participating in wars of aggression.  Were you a member of the SS?
Schmitt: No.
Kempner: To what extent did you participate in the ideological preparation of SS ideology?
Schmitt: Not at all.  I was an opponent of the SS.  I was publicly assaulted and defamed in Das Schwarze Korps.
Kempner: Do you know Gottlob Berger?
Schmitt: I have never seen him.
Kempner: Were you not the idol of SS professors such as Boehm, etc.?
Schmitt: When a state concillor in a totalitarian system is publicly spat at by the Schwarze Korps, that cannot be said.
Kempner: After you were spat at, did you not travel to Salamanca, Paris, Madrid, etc.?
Schmitt: That occurred in 1943 on special invitation from the faculties.
Kempner: You had nothing to do with the SS?
Schmitt: I was strongly opposed to it.  I was secretly observed and controlled by the SS.
Kempner: Did you state that German legislation and the German administration of justice must be carried out in the spirit of National Socialism?  Yes or no?  Did you state that between 1933 and 1936?
Schmitt: Yes.  I was from 1935 to 1936 head of the professional organization.  I felt superior at that time.  I wanted to give the term National Socialism my own meaning.
Kempner: Hitler had a National Socialism and you had a National Socialism.
Schmitt: I felt superior.
Kempner: You felt superior to Adolf Hitler?
Schmitt: Intellectually, of course.  He was to me so uninteresting that I do not want to talk about that at all.
Kempner: When did you renounce the devil?
Schmitt: 1936.
Kempner: Are you not ashamed to have written these kinds of things at that time, such as, for example, that the administration of justice should be National Socialist.
Schmitt: I wrote that in 1933.
Kempner: Do you deserve good or poor grades for that?
Schmitt: It was a thesis.  The National Socialist League of German Jurists extracted it, so to speak, from my mouth.  At that time there was a dictatorship with which I was not yet familiar.
Kempner: You were not familiar with any dictatorship.
Schmitt: No.  This total dictatorship was actually something new.  Hitler’s method was new.  There was only one parallel, Lenin’s Bolshevik dictatorship.
Kempner: Was that something new?
Schmitt: Yes, certainly.
Kempner: In your own library you have writings about totalitarian dictatorship.
Schmitt: Not totalitarian.
Kempner: Are you not ashamed that you wrote these kinds of things at that time?
Schmitt: Today, of course.  I do not consider it appropriate to continue to rummage around in the disgrace we suffered at that time.
Kempner: I do not want to rummage around.
Schmitt: Without question, it was unspeakable.  There are no words to describe it.
Kempner: I consider it better if we converse about such matters outside, not here in custody.
Schmitt: That would be agreeable to me for reasons of health.  I also consider it better in the interest of the case.  This professional opinion suffers from this situation.
Kempner: I want to see that you return home.
Schmitt: My wife gave up the apartment in Berlin.  We have no other lodging than with my sisters in Westphalia.  Could you see that I go there and not automatically be sent to Berlin?
Kempner: That will be taken care of today.
Schmitt: I would appreciate it.