Through the mediation of von Papen and of his friend Johannes Popitz
(then a minister), Schmitt became a member of the commission charged
with drawing up the Reich Governors Law ( Reichsstatthaltergesetz), which
placed Reich representatives in the federal states and removed traditional
federalism. In terms of legal policy, Schmitt’s support for this was in line
with his earlier arguments in favor of a Reichsreform, a reformation of
the Reich.
Through his membership in this commission, Schmitt got to know
such senior Nazi politicians as Hermann Göring and Wilhelm Frick. In
his new role as the National Socialist “crown jurist,” he was immediately
offered professorial chairs in Heidelberg, Munich, and Berlin. In the 1933–
34 winter term, he moved to Berlin University, where he taught until 1945.
In 1933, Göring appointed Schmitt to the newly created Prussian Privy
Council ( Preußischer Staatsrat), which, although it soon became practi-
cally insignificant, gave Schmitt the hope of founding a “Führer Council”
( Führerrat) that was intended to provide close access to Hitler. Schmitt saw
National Socialism as a revolutionary movement and expected that this
force would form new institutions beyond the existing bureaucratic state.
His hope that he might be able to access the center of power as a legal
advisor in the “charismatic,” or personality- based, Führer- state was not alto-
gether far- fetched but as it happened, Schmitt was disappointed. He never
gained access to Hitler, and during 1933 Göring stopped contacting him.
Schmitt, however, became acquainted with another National Socialist pol-
itician, Hans Frank, then Reich Commissioner for Judicial Coordination
( Reichskommissar für die Gleichschaltung der Justiz) and later Reich Law
Chief ( Reichsrechtsführer) and governor- general of Poland (Frank’s name is
closely associated with the Holocaust). Over the course of three years, be-
tween 1933 and the end of 1936, Schmitt was in close contact with Frank.
We may distinguish different stages of the seizure and formation
of power within the revolutionary and destructive dynamic of National
Socialism. Initially, Schmitt assumed that National Socialism would sta-
bilize or, in his own terminology, that there would be a transition from
the State of Exception to a State of Normality. At that point, he believed
that National Socialism could produce a constitutional state. There
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Carl Schmitt and the Politics of Identity
41
is controversy over the question of whether he had in mind a kind of
“taming strategy” that aimed to produce a “strong” state along authori-
tarian and Prussian military lines. Franz von Papen, who remained vice-
chancellor under Hitler until July 1934, represented a personal continuity
between rule by presidential decree and National Socialism. Any hopes for
a stabilization— and so an “authoritarian” rather than “totalitarian” state (a
subtle distinction in any case)— became obsolete on June 30, 1934, when
the Nazis murdered not only certain SA leaders but also other groups of
opponents, among them the former Chancellor Kurt von Schleicher and
Edgar Jung, an intellectual leader of the Conservative Revolution and an
advisor of von Papen.
This was the point at which Schmitt buried any hopes for a stabili-
zation of National Socialism and thus abandoned his former political
companions in his “The Führer protects the law” (“Der Führer schützt das
Recht”),5 an article widely read as one of the most abhorrent justifications
of Hitler and National Socialism. Schmitt now considered National
Socialism to be a terror regime, a Leviathan in a State of Exception, but
he nevertheless still offered legal apologetics for it, which, as a university
teacher, he could have avoided doing without fear of punishment. He in-
creasingly argued for aggressive anti- Semitism as providing meaning and
ideological justification for National Socialism. He attempted to justify the
anti- Semitic Nuremberg Laws of 1935 as “the Constitution of Freedom,”
and also organized a large conference on “Jews in Jurisprudence” in the
autumn of 1936.6
Despite all this, intrigue within the Nazi Party neutralized whatever
influence Schmitt, as someone close to Frank, might have had as an actor
Werner Best polemicized against his earlier life and work, which, until
1933, did not at all conform to the ideological script of National Socialism.
Nevertheless, from 1939 on, Schmitt regained influence in National
Socialist debates over international law on the back of his work on spaces
( Großraumlehre), which justified Nazi expansionism by presenting
National Socialist Germany as a guarantor of order ( Ordnungsmacht) for
central Europe.7
Schmitt survived the war in Berlin. After the war, he lost his university
chair and was interned between September 1945 and October 1946. In the
spring of 1947, he was remanded in custody in Nuremberg for a few weeks
in connection with the war crimes trials, but finally he was released. He
returned to Plettenberg, his Westphalian home, and from then on into
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old age exerted a far- reaching influence as a private scholar through his
publications and via informal channels.
Work and thought
Schmitt spoke many languages and was very widely read. He was familiar
not only with the legal literature of his time, but he also had a compre-
hensive knowledge of art and literature, history, theology, and philosophy.
A major interest was early modern and modern authors such as Hobbes
and Hegel, the authors of the 1848 revolution, and the French avant- garde
(Baudelaire, Bernanos). Plato and Aristotle, and also Aquinas and Kant
are, by contrast, hardly mentioned. Schmitt rejected the philosophy of the
Enlightenment.
One of his most faithful mentors was his doctoral supervisor at
Strasbourg, Fritz van Calker. It was also in Strasbourg that Schmitt be-
came acquainted with Paul Laband, the leading positivist scholar of state
law in the Wilhelminian era. Early on, Schmitt studied the writings of
Hans Kelsen and the Vienna legal school. In Munich he met Max Weber,
whose work had a lasting influence on him. Schmitt was able to assimilate
a wealth of intellectual influences. His numerous personal contacts and
friendships, intense and often not free of tension, were also important
for the ideas he forged. Many of those with whom he was in conversa-
tion were Jewish intellectuals, and Judaism remained central to Schmitt’s
oeuvre.
Schmitt’s work developed over a long period of time, and it mostly
took the form of the short treatise. Just how much unity this body of work
possesses is debated. Schmitt’s early work was based on fundamental
legal distinctions, such as that between morality and right, law and judg-
ment, and power and right.8 In the early Weimar Republic, he historicized
the bourgeois mentali
ty and constitution, denied the legitimacy and inte-
grative power of liberal parliamentary democracy, and mobilized the per-
sonalism of Christianity against the liberal legislative state.9
Schmitt saw the constitutional battles in the wake of 1789 as a
struggle between revolution and counterrevolution, between democratic
legitimacy and dictatorship. He dismissed traditional conservatism and
dynastic legitimacy as the ideology of the restoration, and positioned him-
self alongside the counterrevolution, in part through the life and work of
Juan Donoso Cortés, the nineteenth- century Spanish critic of liberalism.
During the 1920s, Schmitt fought against the legitimacy of the status
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Carl Schmitt and the Politics of Identity
43
quo established by the Treaty of Versailles and the League of Nations.10
He emphasized the revolutionary energy and sovereignty of the nation,
addressing himself to the antiliberal and extraparliamentary movements
of the Weimar Republic.11 He systematized the distinction between lib-
eralism and democracy to explore the notion of an antiliberal presiden-
tial democracy,12 identified a drifting apart of legality and legitimacy, and
to support a transformation of the Weimar Republic into a “strong” and
“authoritarian” state.13 Throughout these writings, he aimed to elaborate
a legal theory and constitutional doctrine that reconstructed valid con-
stitutional law, legality, and legitimacy, all on the basis of political forces
and “fundamental decisions” ( Grundentscheidungen), a key concept of
Constitutional Theory.
Schmitt’s constitutional theory is also characterized by binaries: friend
and enemy, power and right, State of Exception and State of Normality,
liberalism and democracy, legality and legitimacy, law and measure, leg-
islative state (liberal and parliamentarian) and executive state (legitimized
by plebiscitary democracy). Schmitt sees a transition from the State of
Normality to a State of Exception, and a paralysis of the law- governed
bourgeois state and its transformation into the crisis regime of an “au-
thoritarian” and dictatorial executive state.
“Theology” as postulate
As a jurist, Schmitt took on the role of analyst and hermeneutician
for his contemporaries. He did not formulate strong confessional or
philosophical- essentialist theses. Although he repeatedly called himself
a Catholic and Christian, he did not observe the majority of the tenets of
contemporary Catholicism and always argued in favor of the primacy of
the state and of secular politics. And although in his programmatic trea-
tise on Political Theology he rejected atheist metaphysics and the modern
“philosophy of immanence”14 and presented his “counterrevolution” as a
Christian movement, he did not develop Christian doctrines but rather
argued on the basis of transcendental pragmatics, in terms of necessary
conditions. The state figures in anthropomorphic fashion as a person and
is imagined as a sovereign. In his Political Theology, Schmitt states:
The sovereign produces and guarantees the situation in its totality.
He has the monopoly over this last decision. Therein resides the
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essence of the state’s sovereignty, which must be juristically defined
correctly, not as the monopoly to coerce or to rule, but as the mo-
nopoly to decide.15
In this passage, Schmitt draws on Thomas Hobbes, whom he calls a “clas-
sical representative of the decisionist type,” in order to argue against Max
Weber. Hobbes, he says, “advanced a decisive argument that connected
this type of decisionism with personalism.”16
Political Theology develops the idea that the intellectual process of the
early modern and modern periods leads from God’s transcendence to
conceptions of immanence that weaken the authority of the sovereign
and result in the “democratic thesis of the identity of the ruler and the
ruled.”17 Schmitt constructs a necessary connection between theism,
personalism, and “decisionism,” without, however, formulating this on
the basis of theism as a theological notion; rather, he puts it forward as a
hypothesis or presupposition necessitated by the authoritarian decision.
For the jurist there can be no doubt: if God did not exist, then he would
need to be invented for the sake of the authority of the sovereign. The
morality of the intellectual, according to Schmitt, consists of the “final
consequences.”18 Schmitt believed that just as atheism ultimately leads
to political anarchism, the political decision in favor of authority and
dictatorship implies a need for theism and religious meaning. Following
Donoso Cortés, Schmitt therefore speaks in apocalyptic and counterrev-
olutionary terms of the State of Exception as a “decisive bloody battle.”19
Thoughts of this kind, which can be found throughout his work, re-
veal Schmitt to be not a conservative and Christian thinker but a modern
secularized Christian, and— primarily— a political thinker who looks at the
present as a permanent battle over authority, rule, and order. This is what
determines his position in post- 1789 conservatism, in the Conservative
Revolution of the interwar years, and as one of the key thinkers of the rad-
ical Right. Schmitt’s close friendship with Ernst Jünger already suggests
that he was a central figure in this group. As early as 1914, he also became
acquainted with the publicist Arthur Moeller van den Bruck, another im-
portant intellectual pioneer of the Conservative Revolution, and later he
also met Julius Evola. Oswald Spengler, by contrast, is rarely mentioned.
Schmitt probably considered Spengler’s encyclopedic deliberations on the
theme of cyclical cultural decline as a betrayal by the educated bourgeoisie
of the expressionist apocalyptical thought that he clearly sided with in his
1916 book on Däubler.
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Carl Schmitt and the Politics of Identity
45
Schmitt’s central motifs as a thinker emerge from his juridical ap-
proach. He looked at the world of politics as a battle for self- assertion
( Selbstbehauptung), as he pointed out especially in The Concept of the
Political.20 But he did not affirm political power and violence, battle and
war, as such; rather, as a jurist, he required the stabilization of political
forms as legal relationships. In 1934 Schmitt labeled this “concrete order-
thinking” ( konkretes Ordnungsdenken).21 This is why we find in him both
an apocalyptic perspective on the State of Exception and an alarmist and
dramatic perspective on the possibility of crisis characterized by recurrent
worries about the erosion and disintegration of a relatively stable State of
Normality into a State of Exception.
Schmitt’s pessimistic crisis- centered perspective was not naturally
counterbalanced by Christian belief and trust, but instead postulated God
as a civil- theological political requirement.
As a secularized Christian, how-
ever, Schmitt did not draw the radical conclusion of a naturalism and biol-
ogism that tended toward racism and imperialism, especially in Germany.
His anti- Semitism was formulated primarily within a religious discourse.
He used Christian dogmas as political myths, and affirmed the politics of
myth as a kind of political propaganda. His book on The Leviathan in the
State Theory of Thomas Hobbes ( Der Leviathan in der Staatslehre des Thomas
Hobbes) bears this out. Its subject matter is not Hobbes’s philosophy but
the “meaning and failure of a political symbol,” as its subtitle ( Sinn und
Fehlschlag eines politischen Symbols) shows.22
Schmitt’s theory of sovereignty also bears on gender politics. He codes
the sovereign as male and anarchic situations as feminine, finding an in-
clination toward matriarchal myths in anarchist authors. If one wanted to
link life and work at this point, one might not only attribute to the theo-
retician of sovereignty a strong urge to establish hermeneutic hegemony
and discursive domination— an urge that is evident even at the level of
style, in the epigrammatic nature of his theses and his obvious penchant
for novel terminology— but also point to his licentious behavior, which,
particularly in the 1920s, saw him making use of street prostitutes almost
every day. Schmitt’s continual use of prostitutes was a way of proving his
sovereign masculinity. He also reflected on the machismo in the ritual of
bullfighting, which he saw as a model of gender relations. In his diary he
noted in 1923: “The fundamental affect in my life: life is a battle. Certainly.
But a battle that takes place in an arena, in front of spectators, especially
female spectators who have trophies ready to be presented; the feeling
of a torero, a gladiator. The other idea of life as a battle: the battle of the
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marauding knight, the buccaneer, the pirate, the trooper [ Landsknecht].”23
After 1945, Schmitt referred to himself again and again as a picaro: a sol-
dier of fortune trying his luck through the moments of States of Exception.
Identity politics
What is characteristic of Schmitt’s work is not Catholic dogmatism but
an existentialist vocabulary. He formulates his political existentialism