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Sur un autre sujet : en tant que spécialiste du droit constitutionnel, comment évaluez-vous l'arrêt très discuté de la Cour constitutionnelle fédérale sur la loi sur la protection du climat ?
La remise en cause du droit applicable dans la question de l'asile, les restrictions des droits fondamentaux dans le cadre de la pandémie Corona, les décisions de la Cour constitutionnelle fédérale à caractère politique ou moral, la perte de confiance dans la politique : l'État de droit est-il en crise ?
Discussion:
Carl Schmitt
The Crisis of Parliamentary Liberalism
The Concept of the Political
The Weimar Republic Sourcebook (p. 331, 334-337, 342-345)
The editors of The Weimar Republic Sourcebook attempt to summarize the political thought of Carl Schmitt and interpret his writings on political and legal theory on the basis of his later association with Nazism between 1933 and 1936. Schmitt is described as having “attempted to drive a wedge between liberalism and democracy and undercut the assumption that rational discourse and legal formalism could be the basis of political legitimacy.”(Sourcebook, p. 331) His contributions to political theory are characterized as advancing the view that “genuine politics was irreducible to socio-economic conflicts and unconstrained by normative considerations”. The essence of politics is a battle to the death “between friend and foe.” The editors recognize distinctions between the thought of Schmitt and that of right-wing revolutionaries of Weimar, but assert that his ideas “certainly provided no obstacle to Schmitt’s opportunistic embrace of Nazism.”
As ostensible support for this interpretation of Schmitt, the editors provide excerpts from two of Schmitt’s works. The first excerpt is from the preface to the second edition of Schmitt’s The Crisis of Parliamentary Democracy, a work first published in 1923 with the preface having been written for the 1926 edition. In this excerpt, Schmitt describes the dysfunctional workings of the Weimar parliamentary system. He regards this dysfunction as symptomatic of the inadequacies of the classical liberal theory of government. According to this theory as Schmitt interprets it, the affairs of states are to be conducted on the basis of open discussion between proponents of competing ideas as a kind of empirical process. Schmitt contrasts this idealized view of parliamentarianism with the realities of its actual practice, such as cynical appeals by politicians to narrow self-interests on the part of constituents, bickering among narrow partisan forces, the use of propaganda and symbolism rather than rational discourse as a means of influencing public opinion, the binding of parliamentarians by party discipline, decisions made by means of backroom deals, rule by committee and so forth.
Schmitt recognizes a fundamental distinction between liberalism, or “parliamentarism”, and democracy. Liberal theory advances the concept of a state where all retain equal political rights. Schmitt contrasts this with actual democratic practice as it has existed historically. Historic democracy rests on an “equality of equals”, for instance, those holding a particular social position (as in ancient Greece), subscribing to particular religious beliefs or belonging to a specific national entity. Schmitt observes that democratic states have traditionally included a great deal of political and social inequality, from slavery to religious exclusionism to a stratified class hierarchy. Even modern democracies ostensibly organized on the principle of universal suffrage do not extend such democratic rights to residents of their colonial possessions. Beyond this level, states, even officially “democratic” ones, distinguish between their own citizens and those of other states. At a fundamental level, there is an innate tension between liberalism and democracy. Liberalism is individualistic, whereas democracy sanctions the “general will” as the principle of political legitimacy. However, a consistent or coherent “general will” necessitates a level of homogeneity that by its very nature goes against the individualistic ethos of liberalism. This is the source of the “crisis of parliamentarism” that Schmitt suggests. According to the democratic theory rooted in the ideas of Jean Jacques Rosseau, a legitimate state must reflect the “general will”, but no general will can be discerned in a regime that simultaneously espouses liberalism. Lacking the homogeneity necessary for a democratic “general will”, the state becomes fragmented into competing interests. Indeed, a liberal parliamentary state can actually act against the “peoples’ will” and become undemocratic. By this same principle, anti-liberal states such as those organized according to the principles of fascism or bolshevism can be democratic in so far as they reflect the “general will.”
The second excerpt included by the editors is drawn from Schmitt’s The Concept of the Political, published in 1927. According to Schmitt, the irreducible minimum on which human political life is based is the friend/enemy distinction. This friend/enemy distinction is to politics what the good/evil dichotomy is to morality, beautiful/ugly to aesthetics, profitable/unprofitable to economics, and so forth. These categories need not be inclusive of one another. For instance, a political enemy need not be morally evil or aesthetically ugly. What is significant is that the enemy is the “other” and therefore a source of possible conflict. The friend/enemy distinction is not dependent on the specific nature of the “enemy”. It is merely enough that the enemy is a threat. The political enemy is also distinctive from personal enemies. Whatever one’s personal thoughts about the political enemy, it remains true that the enemy is hostile to the collective to which one belongs. The first purpose of the state is to maintain its own existence as an organized collective prepared if necessary to do battle to the death with other organized collectives that pose an existential threat. This is the essential core of what is meant by the “political”. Organized collectives within a particular state can also engage in such conflicts (i.e., civil war). Internal conflicts within a collective can threaten the survival of the collective as a whole. As long as existential threats to a collective remain, the friend/enemy concept that Schmitt considers to be the heart of politics will remain valid.
An implicit view of the ideas of Carl Schmitt can be distinguished from the editors’ introductory comments and selective quotations from these two works. Is Schmitt attempting to “drive a wedge” between liberalism and democracy thereby undermining the Weimar regime’s claims to legitimacy and pave the way for a more overtly authoritarian system? Is Schmitt arguing for a more exclusionary form of the state, for instance one that might practice exclusivity on ethnic or national grounds? Is Schmitt attempting to sanction the use of war as a mere political instrument, independent of any normative considerations, perhaps even as an ideal unto itself? If the answer to any of these questions is an affirmative one, then one might be able to plausibly argue that Schmitt is indeed creating a kind of intellectual framework that could later be used to justify at least some of the ideas of Nazism and even lead to an embrace of Nazism by Schmitt himself.
It would appear that the expression “context is everything” becomes a quite relevant when examining the work of Carl Schmitt. It is clear enough that the excerpts from Schmitt included in the The Weimar Republic Sourcebook have been chosen rather selectively. As a glaring example, this important passage from second edition’s preface from The Crisis of Parliamentary Democracy has been deleted:
“That the parliamentary enterprise today is the lesser evil, that it will continue to be preferable to Bolshevism and dictatorship, that it would have unforseeable consequences were it to be discarded, that it is ’socially and technically’ a very practical thing-all these are interesting and in part also correct observations. But they do not constitute the intellectual foundations of a specifically intended institution. Parliamentarism exists today as a method of government and a political system. Just as everything else that exists and functions tolerably, it is useful-no more and no less. It counts for a great deal that even today it functions better than other untried methods, and that a minimum of order that is today actually at hand would be endangered by frivolous experiments. Every reasonable person would concede such arguments. But they do not carry weight in an argument about principles. Certainly no one would be so un-demanding that he regarded an intellectual foundation or a moral truth as proven by the question, What else?” (Schmitt, Crisis, pp. 2-3)
This passage, conspicuously absent from the Sourcebook excerpt, indicates that Schmitt is in fact wary of the idea of undermining the authority of the Republic for it’s own sake or for the sake of implementing a revolutionary regime. Schmitt is clearly a “conservative” in the tradition of Hobbes, one who values order and stability above all else, and also Burke, expressing a preference for the established, the familiar, the traditional, and the practical, and an aversion to extremism, fanaticism, utopianism, and upheaval for the sake of exotic ideological inclinations. Clearly, it would be rather difficult to reconcile such an outlook with the political millenarianism of either Marxism or National Socialism. The “crisis of parliamentary democracy” that Schmitt is addressing is a crisis of legitimacy. On what political or ethical principles does a liberal democratic state of the type Weimar purports to be claim and establish its own legitimacy? This is an immensely important question, given the gulf between liberal theory and parliamentary democracy as it is actually being practiced in Weimar, the conflicts between liberal practice and democratic theories of legitimacy as they have previously been laid out by Rosseau and others and, perhaps most importantly, the challenges to liberalism and claims to “democratic” legitimacy being made by proponents of totalitarian ideologies from both the Left and Right.
The introduction to the first edition and first chapter of Crisis contain a frank discussion of both the intellectual as well as practical problems associated with the practice of “democracy”. Schmitt observes how democracy, broadly defined, has triumphed over older systems, such as monarchy, aristocracy or theocracy in favor of the principle of “popular sovereignty”. However, the advent of democracy has also undermined older theories on the foundations of political legitimacy, such as those rooted in religion (”divine right of kings”), dynastic lineages or mere appeals to tradition. Further, the triumphs of both liberalism and democracy have brought into fuller view the innate conflicts between the two. There is also the additional matter of the gap between the practice of politics (such as parliamentary procedures) and the ends of politics (such as the “will of the people”). Schmitt observes how parliamentarism as a procedural methodology has a wide assortment of critics, including those representing the forces of reaction (royalists and clerics, for instance) and radicalism (from Marxists to anarchists). Schmitt also points out that he is by no means the first thinker to point out these issues, citing Mosca, Jacob Burckhardt, Belloc, Chesterton, and Michels, among others.
A fundamental question that concerns Schmitt is the matter of what the democratic “will of the people” actually means, observing that an ostensibly democratic state could adopt virtually any set of policy positions, “whether militarist or pacifist, absolutist or liberal, centralized or decentralized, progressive or reactionary, and again at different times without ceasing to be a democracy.” (Schmitt, Crisis, p. 25) He also raises the question of the fate of democracy in a society where “the people” cease to favor democracy. Can democracy be formally renounced in the name of democracy? For instance, can “the people” embrace Bolshevism or a fascist dictatorship as an expression of their democratic “general will”? The flip side of this question asks whether a political class committed in theory to democracy can act undemocratically (against “the will of the people”) if the people display an insufficient level of education in the ways of democracy. How is the will of the people to be identified in the first place? Is it not possible for rulers to construct a “will of the people” of their own through the use of propaganda? For Schmitt, these questions are not simply a matter of intellectual hair-splitting but are of vital importance in a weak, politically paralyzed democratic state where the committment of significant sectors of both the political class and the public at large to the preservation of democracy is questionable, and where the overthrow of democracy by proponents of other ideologies is a very real possibility.
Schmitt examines the claims of parliamentarism to democratic legitimacy. He describes the liberal ideology that underlies parliamentarism as follows:
“It is essential that liberalism be understood as a consistent, comprehensive metaphysical system. Normally one only discusses the economic line of reasoning that social harmony and the maximization of wealth follow from the free economic competition of individuals…But all this is only an application of a general liberal principle…: That truth can be found through an unrestrained clash of opinion and that competition will produce harmony.” (Schmitt, Crisis, p. 35)
For Schmitt, this view reduces truth to “a mere function of the eternal competition of opinions.” After pointing out the startling contrast between the theory and practice of liberalism, Schmitt suggests that liberal parliamentarian claims to legitimacy are rather weak and examines the claims of rival ideologies. Marxism replaces the liberal emphasis on the competition between opinions with a focus on competition between economic classes and, more generally, differing modes of production that rise and fall as history unfolds. Marxism is the inverse of liberalism, in that it replaces the intellectual with the material. The competition of economic classes is also much more intensified than the competition between opinions and commercial interests under liberalism. The Marxist class struggle is violent and bloody. Belief in parliamentary debate is replaced with belief in “direct action”. Drawing from the same rationalist intellectual tradition as the radical democrats, Marxism rejects parliamentarism as sham covering the dictatorship of a particular class, i.e., the bourgeoise. True democracy is achieved through the reversal of class relations under a proletarian state that rules in the interest of the laboring majority. Such a state need not utilize formal democratic procedures, but may exist as an “educational dictatorship” that functions to enlighten the proletariat regarding its true class interests. Schmitt then contrasts the rationalism of both liberalism and Marxism with irrationalism. Central to irrationalism is the idea of a political myth, comparable to the religious mythology of previous belief systems, and originally developed by the radical left-wing but having since been appropriated by revolutionary nationalists. It is myth that motivates people to action, whether individually or collectively. It matters less whether a particular myth is true than if people are inspired by it.
It is clear enough that Schmitt’s criticisms of liberalism are intended not so much as an effort to undermine democratic legitimacy as much as an effort to confront the weaknesses of the intellectual foundations of liberal democracy with candor and intellectual rigor, not necessarily to undermine liberal democracy, but out of recognition of the need for strong and decisive political authority capable of acting in the interests of the nation during perilous times. Schmitt remarks:
“If democratic identity is taken seriously, then in an emergency no other constitutional institution can withstand the sole criterion of the peoples’ will, however it is expressed.” (Sourcebook, p.337)
In other words, the state must first act to preserve itself and the general welfare and well-being of the people at large. If necessary, the state may override narrow partisan interests, parliamentary procedure or, presumably, routine electoral processes. Such actions by political leadership may be illiberal, but not necessarily undemocratic, as the democratic general will does not include national suicide. Schmitt outlines this theory of the survival of the state as the first priority of politics in The Concept of the Political. The essence of the “political” is the existence of organized collectives prepared to meet existential threats to themselves with lethal force if necessary. The “political” is different from the moral, the aesthetic, the economic or the religious as it involves first and foremost the possibility of groups of human beings killing other human beings. This does not mean that war is necessarily “good” or something to be desired or agitated for. Indeed, it may sometimes be in the political interests of a state to avoid war. However, any state that wishes to survive must be prepared to meet challenges to its existence, whether from conquest or domination by external forces or revolution and chaos from internal forces. Additionally, a state must be capable of recognizing its own interests and assume sole responsibility for doing so. A state that cannot identify its enemies and counter enemy forces effectively is threatened existentially.
Schmitt’s political ideas are more easily understood in the context of Weimar’s political situation. He is considering the position of a defeated and demoralized Germany, unable to defend itself against external threats, and threatened internally by weak, chaotic and unpopular political leadership, economic hardship, political and ideological polarization and growing revolutionary movements, sometimes exhibiting terrorist or fanatical characteristics. Schmitt regards Germany as desperately in need of some sort of foundation for the establishment of a recognized, legitimate political authority capable of upholding the interests and advancing the well-being of the nation in the face of foreign enemies and above domestic factional interests. This view is far removed from the Nazi ideas of revolution, crude racial determinism, the cult of the leader and war as a value unto itself. Schmitt is clearly a much different thinker than the adherents of the quasi-mystical nationalism common to the radical right-wing of the era. Weimar’s failure was due in part to the failure of political leadership to effectively address the questions raised by Schmitt.