‘...according to Schmitt, the only politics is international politics.’1
If one is to identify one pre-eminent theme in Schmitt’s entire efforts as a political theorist it would undoubtedly be to uncover the specifically political failings of liberalism (both internally and externally), and to trace the consequences of those failings. Schmitt consistently piques interest as the ‘foremost critic’ of liberalism. He is frequently taken as a ‘challenge’ in the renewal and repair of democratic forms of governance, and in the remedying of liberalisms most evident failings. Such a characterisation is by no means unfair. Schmitt was constantly pre-occupied with the dangers, as he saw them, of liberal abstraction, legal formalism, potestas indirecta and the multiple ‘Ent-Entungen’ of modern ‘politics.’ In this account, Schmitt occupies a double negative position that mirrors the liberal ‘de-deings’ he attacks - he is anti-anti-politics.2
So-far this work has argued for a deeper understanding of the historical-theoretical aspects of that critique. Both in his detailed account of the origins of the liberal ‘problem’ and in his ideas of the irrepressible tide of liberal historicism, Schmitt displayed a complex pessimism about the prospects of the modem state, and hence, the prospect of politics in form (or, at least, in the form that we have known). The infusion of liberalism into the state is written as part tragedy, part farce, and sways between dismayed fatalism and bitter criticism of those who have blindly accelerated the process. By the time Schmitt acknowledges that the process of dissolution is complete, what remains is the gaping problem of how to restore, re-create or create a new political order capable of restraining terminal formlessness. The remainder of this work examines Schmitt’s response to this self-diagnosed challenge.
Given the range of analytical tools at his disposal, and his urgent prescription of the need for novel political categories, it is initially surprising that Schmitt’s response to this challenge is
1 S. Holmes, The Anatomy of Antiliberalism p. 41
2 Ent-Entungen is a phrase coined by Schmitt as a collective term for all of the processes of dissolution encouraged by liberalism (e.g. depoliticisation, detheologisation, dehistoricalisation etc). As Marcus Brainard points out, the most accurate rendering of Ent-Entungen would be de-deings (although he chooses the less absurd ‘un-doings’). See Meier Lesson TNI, p. 175
so apparently limited. If Schmitt intended his critique of both the legal-positivist state and normative international law to prove devastating, it seems inevitable that he should have been moved to consider positive alternative strategies. However, although during the 1930s ‘these negative criticisms give way to the, as it were, positive vision of an international order that Schmitt offers,’ the content of that positive vision is somewhat sparse.3 Against the
Begriffsmagie on display in Schmitt’s reflective and analytical works, the hollowness of his efforts at political innovation are all the more remarkable. This section seeks to outline these limitations, and to explore possible relationships between Schmitt’s understanding of the past, and his imagination of the future.
In this chapter we shall consider the concept of Grofiraumordnung (an order predicated on large spaces) as the most detailed and most heavily conceptualised of Schmitt’s attempts to theorise beyond the state towards a renewed political future. This is a novel category with its origins in international law, and it reached its most comprehensive expression in Schmitt’s 1938 treatise Volkerrechtliche Grofiraumordnung mit Interventionsverbot fu r raumfremde M achtef Following exegesis of the concept and its relationship to Schmitt’s other work, we will go on to examine the complicated and tentative distinctions that Schmitt draws between a novel Grofiraum and the Westphalian state. International lawyers in the 1930s were themselves concerned with the question of how exactly Schmitt’s concept was distinct from simply a territorially expanded state, and this line of critique remains relevant to the present concerns. Given the failure Schmitt identifies in the relationship of Staatliche political authority and the individual (the ‘barely visible crack’) it is clear that any novel concept would have to be conceptually highly distinct from the discredited state. It is unclear that Schmitt achieves the necessary degree of novelty in the Grofiraum concept.
Finally, this chapter will conclude with a brief examination of the reception of Schmitt’s idea of Grofiraumordung in subsequent and divergent political theory. In many respects, the idea of a politics of large spaces has maintained a self-evident appeal right through to the turn of the century. The very modem challenges that Schmitt once felt necessitated a new, wider spatial horizon for politics have themselves accelerated (especially modem communications
3 A. Carty, ‘Carl Schmitt’s Critique of Liberal International Legal Order Between 1933 and 1945’ in Leiden Journal of International Law 14(2001) p.34
4 This somewhat clunky title is perhaps best rendered as ‘International law of large spaces with a prohibition on intervention by external powers.’ The fourth edition of the treatise (1942) is reproduced in the edited collection Stoat, Grofiraum, Nomos.
and weapons of mass destruction,). Moreover, Schmitt’s problematic reflections on the need for a common ‘political idea’ (politische Idee) that permeates a greater political community has appeared to resonate with those such as Huntingdon who feel that culture will some to define the lines of enmity between larger spaced political units.5 In the context of the foregoing discussion, this section will conclude by arguing that any attempt to redeploy the
Grofiraum concept in a modern setting must take into consideration the complicated political problems to which it was initially addressed. That some may find potential value in an idea of reconfigured and enlarged quasi-states should not blind us to the comparative failure of the
Grofiraum idea to address the consequences of Schmittian historical acceleration.
Schmitt’s Path into International L a v/
Schmitt’s idea of Grofiraum began life as a series of theses in international law. Although this may seem unremarkable given his profession, it is significant to note that Schmitt’s initial response to the apotheosis of international disorder in the 1930s came in the form of academic legal studies rather than the emphatic theoretical style of his earlier political works. In so far as the idea of Grofiraum was an attempt to solve the problems those earlier works and the contemporaneous study of Hobbes identified, Schmitt resorted to the solid foundations of legal theory to structure his solution.
Prior to the late 1930s, Schmitt’s academic career witnessed only limited critical work in international law. These occasional forays focussed on the flaws of the Versailles-Weimar legal system, the hypocrisy of the victorious powers in the First World War, and the need to restore the anti-normative foundations of the old jus publicum Europaeum. As such, it was a legal counterpoint to Schmitt’s political condemnation of the post-1919 international order. In
‘Das Rheinland als Objekt intemationaler Politik, ’and ‘Volkerrechtliche Probleme des
5 See Volkerrechtliche Grofiraumordnung p.295-296.
6 ‘International Law’ is a highly problematic rendering of the far more flexible and multivalent German word Volkerrecht which defies direct translation. One possible rendering would be ‘law of peoples’, but this proves misleading since the latter term has gained a specific meaning in Anglo-American international jurisprudence and political philosophy. It is perhaps most obviously defined in the negative - i.e. as that law that exists outside of the domestic legislative and juridical competence of a state (although such a definition is itself self-evidently problematic).
Rheingebiets’ (both 1928) Schmitt’s concern had been to criticise the legal and political indeterminacy created by the tenuous status of the Rhineland, and the unsustainable attempt to make it subject to international law.7 Although these studies cohere with Schmitt’s parallel career as a political theorist, his academic reputation was firmly based in his work in constitutional law.
In 1933 Schmitt held a full professorship in law at the University of Bonn, and already stood out as a prominent constitutional lawyer. Indeed, constitutional law had predominated Schmitt’s scholarly career to that point. In 1928 Schmitt had published his Verfassungslehre
to considerable acclaim, and had pursued his technical critique of the constitutional failings of the Weimar constitution alongside his more polemical critique of the tandem failings of liberalism.8 His career as a constitutional theorist reached the height of its notoriety with Schmitt’s advocacy of the use of emergency powers under Article 48 of the Weimer constitution, and his subsequent legal justification of the Nazi ascent to and consolidation of power.9
Schmitt’s initial response to the ascent of Nazism was thus as a constitutional lawyer. Whatever his emotional inclinations may have been, Nazism did represent a certain realisation of the constitutional principles espoused in the Verfassungslehre, and the ancient ideal of Roman constitutional law that Schmitt had earlier outlined in Der Diktatur. In other words, Nazism appeared to hold out the promise of closing the formalist-liberal gap between political authority and the law. A certain excitement at this prospect is evident in Schmitt’s reflections on the new constitutional circumstances of Nazi Germany in 1933 and 1934.10 Schmitt celebrated the ongoing attack on legal positivism, and looked forward to a new era of legal indeterminacy in Germany in which the exercise of direct and responsible power would replace the formless abuses of liberal potestas indirecta.11
7 Both essays are reproduced in Positionen und Begriffe.
8 Jan Wemer-Muller describes the Verfassungslehre as ‘a brilliant conservative effort in deconstructing and containing mass democracy.’ Dangerous Mind p.31
9 See Chapter 2 above.
10 See especially Staat-Bewegung-Volk: Dreigliederung derpolitischen Einheit (1933) and Uber die drei Arten des rechtswissenschaftliche Denkens Hamburg: HAVA (1934)
11 For more on Schmitt’s reaction to National Socialism as a constitutional lawyer see Ellen Kennedy,
At the same time, Schmitt immediately recognised the linkage between these new constitutional opportunities, and ancillary opportunities to challenge the international legal status quo. National Socialism had fed, of course, on a generalised sense of discontent with the Versailles settlement, and it presented itself as an internationally revisionist regime. In
Nationalsozialismus und Volkerrecht (1934), Schmitt revisited his critique of the post-1919 international legal order, but this time his critique was infused with the evident hope that the new political order in Germany would translate to a new international legal order.12 Schmitt appeared to believe that the creation of a new concrete political order in Germany would finally destroy the legal abstractions of the League of Nations. At this point, however, Schmitt’s thoughts still lay with some act of recreation of some pre-1914 Grundrechle as the likely replacement. In 1933 and 1934, Schmitt continued to focus most of his energy on working out the constitutional implications of National Socialist Germany.
Following these energetic opening chapters, however, the prospects of Schmitt developing a sustained position as a constitutional theorist of Nazi Germany quickly diminished. The very notion of Nazi constitutional law contained a hint of oxymoron, and it quickly became evident that substantial academic intrusion into questions of the structure of the state and its authority were neither desired nor welcomed. From 1934 onwards, opportunities to make a meaningful contribution as a constitutional lawyer were increasingly foreclosed. In common with all the other leading legal academics in Germany, Schmitt inevitably faced a dilemma - quiescence or silence.13
Events interceded to make Schmitt’s position as a constitutional theorist increasingly less tenable. Following the Rohm putsch, Schmitt effectively endorsed Hitler’s untrammelled authority as Ftihrer in his (now infamous) article Der Ftihrer schtitz das Recht (The Fiihrer Protects the Law). Schmitt’s constitutional contributions became increasingly dominated by the self-protective imperatives of the period and such constitutional theory as he continued to produce developed an integrally anti-Semitic tone.14 This apparent slide into sycophancy
12 ‘Nationalsozialismus und Volkerrecht (1934); see also A.Carty ‘Carl Schmitt’s Critique’ pp.31-34 13 Detlev Vagts gives a superb account of the response of German academic lawyers to the ascent of
Nazism in ‘International Law in the Third Reich’ in The American Journal of International Law 84:3 (1990)
14 Schmitt’s anti-Semitism and his relationship to Nazi policies is considered in more detailed in Chapter 3 pp.75-78.
reached its low point with Schmitt’s organisation of a conference in 1936 aimed at uncovering and eliminating those Jewish influences that supposedly contaminated German jurisprudence.15
Despite such attempts to build racialist credentials with the regime, Schmitt’s position as a constitutional lawyer was nevertheless compromised by his status as a latecomer to Nazism. As Bendersky illustrates, suspicion remained within the Nazi hierarchy that this volte face was bald opportunism, and not to be trusted.16 Partly due to these limitations to the practice of constitutional law, and the frustrations of academic life in Nazi Germany, Schmitt turned his attention to broader questions in international law. Certainly this shift was the most realistic way for Schmitt to maintain a productive role within the academic hierarchy. Indeed, as documents uncovered by Maschke prove, at least one SD agent felt that this shift was little more than opportunistic manoeuvring;
‘Once he could see his total exclusion from shaping internal National Socialist law, he is now searching for a new field in order to avoid his comprehensive marginalisation. ’17
Practical considerations aside, however, it does seem that Schmitt was moved by a genuine desire to examine how the radically new Nazi regime might transform the structures of international law. With the internal constitutional arrangements now thrown into a ‘properly political’ vortex of decision and authority, it perhaps seemed safest and most productive for Schmitt to turn his attention to the proper realm of politics - the international sphere. The development of a theory of large spaces as a successor to the jus publicum Europaeum
constitutes Schmitt’s fully formed attempt to conceive of how the ascent of Nazism might radically alter the basis of world politics, and reproduce a solidly rooted, anti-internationalist arena for conflict.
This cannot be read, of course, as specifically a response to the realisation of a changing
nomos. Schmitt only realised a fully formed concept of nomoi after the idea of Grossraum in international law had been and gone. However, even without this terminology, it is clear that the basic ingredients of this historical realisation fell into place during the 1930s. The essays
15 For more on this conference see Balakrishnan p.205-207 16 J.Bendersky, Carl Schmitt p.248-249
in Positionen und Begriffe, published as an edited collection in 1940, clearly addressed themselves to the unsustainability of liberal internationalism. In his constitutional theory, Schmitt was concerned with reversing the long-term consequences of liberal formalism, and recovering direct political authority. Ellen Kennedy is correct in her conclusion that, ‘Schmitt thought of the Third Reich as a new state, and his work in the first year of Hitler’s regime locates it as a revolutionary break with its predecessor.’18 At some point between 1933, and the publication of Volkerrechtliche Grofiraumordnung in 1938, Schmitt appears to have reached a deeper conclusion that the Third Reich heralded a more fundamental break than a mere ‘new state’, and instead held out the opportunity of radically reshaping the foundations of international order.
During 1937 Schmitt was preoccupied to a great extent with his deeper study of Hobbes, and reflection on the historical trajectory of the state. The completion of his study of Leviathan in 1938 illustrates Schmitt’s understanding of the historical trajectory of the modem state. His thinking at this stage is intensely historical, addressing himself to a far broader canvas than ever before. Whereas his initial response to National Socialism had been precise and technical, he had by now developed the grandiose, epochal mode of expression that would characterise much of his international work. All of Schmitt’s work of this period is possessed of a fin-de-siecle tone that transcends the immediate circumstances of Germany in 1937-1938. We can probably say with some certainty, therefore, that it was in this eighteen-month period that Schmitt finally concluded the state of Hobbes and Bodin to be beyond resuscitation. If renewal and restoration were no longer credible solutions, the key political imperative became innovation and the discovery of novel categories. The theory of large spaces was therefore Schmitt’s initial attempt to adopt a predictive stance, and to grasp for future principles of global order.
Volkerrechtliche Grofiraumordnung19
By his own admission, Schmitt had struggled to escape a critical mindset, and to address himself to the positive search for new ordering principles. Rather than attempting to innovate from first principles, Schmitt suggests that he was instead trying to identify the quasi-organic birth pangs of a new order. Such an anticipatory approach is both consistent with the conservatism we have witnessed in the previous chapters, but more prosaically, was probably a sensible strategy for a theorist under pressure in a Germany where the contours of future foreign policy had not yet become clear. According to Detlev Vagts, ‘confusion was occasioned by the sheer difficulty of knowing what sort of international law National Socialism really implied or needed.’20 It took time for Schmitt to summon the confidence to comment on the possible parameters of a new international law under Nazism;
“When, in autumn 1937, I completed my study The Turn Towards a Discriminatory Concept o f War as a research piece for the Academy of German Law, the political conditions [for this new international law] were not yet clear The natural response to that piece would be to pose the question, what would I propose to take to the place of the old order of states...Today, I can give the answer”21
His answer is that ‘the new ordering principle of the new international law is our concept of the Reich.'22 Schmitt clearly has in mind here the particular and immediate circumstances in Germany that, according to this view, have made possible an alternative vision of international order.
‘The thought of a German Reich as the architect and builder of a new international law would previously have been a utopian dream, and the content of
19 All references in the chapter are to the 4th edition of Volkerrechtliche Grofiraumordnung, published in 1941 and included in the collected volume Staat, Grofiraum, Nomos. All page numbers refer to the 1995 edition of Staat, Grofiraum, Nomos. The core legal-theoretical argument remained constant between the 1st and 4th editions. However, the latter is somewhat more extensive in its