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ABSTRACT. This article addresses, from a Frankfurt School perspective on law identified
with Franz Neumann and more recently Habermas, the attack upon the principles
of war criminality formulated at the Nuremberg trials by the increasingly influential legal
and political theory of Carl Schmitt. It also considers the contradictions within certain of
the defence arguments that Schmitt himself resorted to when interrogated as a possible
war crimes defendant at Nuremberg. The overall argument is that a distinctly internal,
or “immanent”, form of critique is required of Schmitt’s position, in which its is found
wanting even on its own terms. In principle, the application of this dialectical mode of
critique can allow a genuine debate to emerge between those seeking to continue both the
Schmittian and critical theory traditions, whilst safeguarding the latter from the dangers
of formulating polemical interventions that are, in effect, counterproductive to their own
KEY WORDS: Carl Schmitt, Franz Neumann, immanent modes of critique, incitement to
genocide, legal theory of the Frankfurt School, Nuremberg principles, OSS, war crimes
This article tackles a series of issues, as much methodological and political
as they are jurisprudential, concerning the relationship between the
libertarian socialist account of the rule of law provided by Franz Neumann
and the authoritarian, proto-fascist theory developed by Carl Schmitt. The
empirical and historical focus is Schmitt’s interrogation by Nuremberg war
crimes prosecutor Robert Kempner, a war-time colleague and friend of
That focus is not purely historical however. For as long as civil libertarian
appeals to preserve democratic values of accountability, transparency
and openness to maximum participation in the exercise of public and
private power fail to gain and sustain majority support amongst those both
exercising and subject to such power, then a distinctly fascistic reconstruction
of our existing governmental, institutional and social system remains
an ever-present possibility. With depressingly few exceptions, the Nazi
Res Publica 5: 161–194, 1999.
? 1999 Kluwer Academic Publishers. Printed in the Netherlands.
regime was able to rely upon strong support from both practitioner and
academic branches of the legal profession, most of whom regained their
positions under the post-war settlement. If a different version of Fascism
ever re-surfaces, then it is conceivable that many of the arguments used to
greatest effect by the Nazi jurist Carl Schmitt to ridicule and undermine
support for a civil and human rights-based form of liberal parliamentary
democracy will resurface, and then gain increasing support, in ‘radical’
and would-be avant-garde circles.
Since 1985, this renaissance has been happening at an ever-increasing
rate, precisely during a period which has coincided with the re-emergence
of “the radical right” as a distinctly political force (Scheuerman 1994:
ch. 1). Within the European continent, the latter’s most extreme nationalistic
expressions have involved so-called ‘ethnic cleansing’ against groups
which fall outside racial, ethnic or religious definitions of ‘homogeneity’,
and whose very existence within national borders re-interpreted as
a ‘threat’. Even have been those who are not alarmed by genocidal expressions
of right-wing orientations should find the status and potential of the
arguments of Carl Schmitt of interest, notwithstanding their distance from
the present author’s critique of their validity. Any legal or political theorist
eager either to support or combat the re-emergence of a distinctly fascistic
re-ordering could do far worse than to study the character, rhetorical appeal
and implications for liberal democracy of Schmitt’s ideas and involvements,
not least in the context of how he attempted to justify himself before
a Nuremberg prosecutor who, like Neumann himself, had had to flee from
Nazi Germany.
Although an adequate exposition of Schmitt’s central ideas would
require a monograph, a brief summary may be helpful at this point. Schmitt
made a powerful attack upon what he portrayed as the fatal contradictions
and “problematic nature” of the spurious ‘neutrality’ of the liberal
constitutional state: For example, liberalism’s theoretical claim to accord
pluralistic and non-judgmental tolerance to all substantive accounts of
what constitutes the “common good”; whilst, in practice, also implicitly
undermining citizens’ efforts to organise their lives according to welldefined
communal values which diverge from liberalism’s own commitment
to market-oriented individualism. For Schmitt, the liberal state’s
application of such substantive ‘neutrality’ (in the form of an allegedly
non-ideological “proceduralism” and commitment to supposedly universal
values of pre-political individual rights) condemns it to a series of backand-
forth movements between equally untenable positions. These include
two oscillations: one between a natural law commitment to the subordination
of positive law to higher “natural rights”, and the diametrically
opposed stance of Kelsen’s positivism; and another between a dogmatically
authoritarian imposition of the ‘truth’ of its own individualistic values
which threaten to displace rival perspectives, and a relativistic denial of
the very possibility of such absolute ‘truth’ to any competing political
ideologies (including its own).
For Schmitt, the practical end-result of liberalism’s structural incoherence
is the perpetual procrastination of inconclusive parliamentary debates
which ‘decide’ only to postpone decisive action, and hence engender the
state’s paralysis in the face of historical threats from both its internal
and external enemies (Schmitt 1985). Schmitt argues that such threats
urgently require the mobilisation of a unified homogeneous state which is
centred around a sovereign’s personal vision of its people’s unique historical
destiny. He maintains that such contradictions are self-destructive.
They leave the liberal constitutional state utterly defenceless against
effective colonisation by the most powerful of privately funded special
interest groups, whose pervasive impact creates widespread popular disillusion
with respect to both liberal parliamentary institutions and the wider
democratic political process (Schmitt 1985).
Dyzenhaus has rightly argued that Schmitt’s critique of liberal constitutionalism
depends upon a series of dramatic inversions of the presuppositions
of liberal ideology more generally (Dyzenhaus 1997). These include
the relationship between abstractly universal and impersonal general legal
principles characteristic of Enlightenment rationalism (such as the rule
of law), and the essentially particularistic and concrete character of fullblooded
contestation between starkly incompatible ideologies. The latter
are resolvable only by the private exercise of decision expressive of an irreducibly
personal form of “existential” commitment and political “vision”.
Furthermore, whereas liberalism claims to subordinate sovereign political
power to a supposedly closed system of self-sufficient legal norms, the
“separation of powers” and ideologically-neutral constitutional procedures
expressive of reason, Schmitt’s subordination of all legal-constitutional
authority to an essentially particularistic form of untameable sovereign
power effectively denies the very possibility of any such overarching
‘neutrality’ (Dyzenhaus 1997). Schmitt also reverses liberalism’s prioritisation
of the relationship between mundane constitutional norms and the
“exceptional state”. He does so by interpreting the power to identify the
latter as constitutive for the authority of the former. Whereas liberalism
promotes political-cultural pluralism and open-ended discursive deliberation
between competing perspectives on the goals of public policy,
Schmitt advocates decisive and pre-emptory sovereign action, unhindered
by constitutional limitations, to enforce the absolute value of whatever
substantive principle of homogeneity is promoted by the sovereign power.
Arguably, Schmitt’s inversions are essentially authoritarian in that they
reduce principles of constitutionality to a secondary expression of sovereign
power, itself independently constituted by the non-rational force of
brute and unaccountable “existential decision”. For Schmitt, the latter is
basic in that it first establishes the fundamental nature of the entire legal
order of the liberal state, and hence cannot be held accountable to the
content of merely derivative constitutional norms. Schmitt’s “decisionism”
effectively reduces legal authority that is regulated by the rule of law and
basic rights to an essentially instrumental form of sovereign power. The
latter is exercised in a moral vacuum, in which the only criterion of success
is success itself.
Ironically, given his appeal to a decisionist, as distinct from either a
normative or a rationalistic source of constitutional legitimacy, Schmitt
defended his own work during the Weimar and Nazi periods in exclusively
theoretical terms. In April 1947, and facing the prospect of prosecution
for participation in a “conspiracy to wage aggressive war” at the
subsequent proceedings of the Nuremberg International Military Tribunal,
Carl Schmitt wrote the following from his prison cell:
[T]hat for which I am being held responsible is essentially only that which I have written
– scholarly treatises, which have resulted in many fruitful scholarly debates (in Bendersky
1987: 125).
The present study has been extracted from a larger project which
compares the life and scholarship of Franz Neumann with that of Schmitt.
This wider project places particular emphasis upon the interplay between
these authors’ respective ideas, political commitments and activities that
relate both to the war crimes of the Nazi period and to the mixed legacy of
de-Nazification and democratic reconstruction. The scholarly differences
between Neumann and Schmitt intensified as the illiberal implications,
and fascistic consequences, of Schmitt’s authoritarian view of law became
increasingly apparent (Scheuerman 1994; Kennedy 1987a; S?llner 1987).
Furthermore, both these jurists had firsthand experience of the Nuremberg
war crimes prosecution process, albeit from different sides. Whilst
in May 1933 Neumann’s career was terminated by the Nazis, with whom
Schmitt had recently ingratiated himself, the immediate post-war situation
witnessed an ironic reversal of their respective roles. Neumann, who had
once been arrested by the Nazis, joined the prosecutors; while Schmitt
was detained as a suspected war criminal. More specifically, Neumann –
following his escape from persecution and exile – made a direct contribution
to the Nuremberg process both through his research on war crimes for
the American Office of Strategic Services (OSS) between 1943–1945 and
his subsequent work as a Chief of Research for Justice Jackson’s prosecution
team. In this way, Neumann contributed to a process that ensured
that Schmitt faced the possibility of ‘poetic justice’. Indeed, the member
of Jackson’s team who interrogated Schmitt, and ensured that he remained
interned for a full year, was none other than Robert Kempner, a colleague
and friend of Neumann (Bendersky 1987).
Much of the documentation giving the details of Neumann’s involvement
with the work of the OSS, including his section’s involvement
with the preparation of the prosecution strategies and assisting with the
detailed briefs for the Nuremberg Trials, has only recently been declassi-
fied by the CIA. To date, however, the specifically war crimes aspect has
largely escaped attention within both the general OSS literature (cf. Smith
1983) and that focusing upon Neumann’s personal involvement within this
organisation’s Research and Analysis Branch (S?llner 1982). Nevertheless,
addressing the diametrically opposed positions taken up by Schmitt
and Neumann with respect to the meaning and implications for the rule of
law of the Nuremberg process could provide a concrete focus for future
studies of the relationship between these two legal theorists.
Although the following study re-examines the “fruitful debate” between
Neumann and Schmitt, viewed as the representatives of critical legal
theory and fascist jurisprudence respectively, the relationship between
these jurists is hardly reducible to purely scholarly disagreements. What
is at stake is rather a decisive conflict over contrasting values, ideologies
and social goals, whose institutional and political ramifications may never
be resolved, at least not in any definitive fashion.
Hence the present article sets itself the modest task of indicating, in a
preliminary fashion, what may be at stake in the interrogation of Schmitt
from that critical theory perspective which informs Neumann’s engagement,
and how the issues raised by the debate between Schmittian and
Frankfurt School interpretations of law should be addressed if counterproductive
results are to be avoided. Here is a controversy between rival
traditions whose interpretation by contemporary writers from either camp
is rich in possible dangers of over-heated polemical overstatement, “guiltby-
association”, strategic distortion and self-defeating “critiques”. Those
associated with Critical Theory, who defend a broadly “enlightenment”
commitment to radical participatory democracy, are set against those, such
as Schmitt, who challenge the basic tenets of mainstream conceptions of
liberal democracy. Such tenets are rejected in favour of the values associated
with an existential politics of “solidarity” centred upon racial, ethnic
or other pre-rational sources of “identity”. In this context, the critical
theorists are uniquely at risk of engaging in polemics with Schmittians
that generate far more heat than enlightenment (Kennedy 1987b). If this
occurs, then polemicists from the critical theory tradition would unfortunately
fall into the trap set by their Schmittian opponents, who want
to suggest that human destiny is incapable of being shaped by a democratic
political process guided by the rational force of better argument.
A key issue raised by the crucial, and – for Habermas (Habermas 1989,
1994, 1997) – increasingly topical, Schmitt vs. critical theory debate, is
how best to avoid the adoption of self-defeating positions. Arguably, this
is a controversy that, notwithstanding its pertinence to, and emotional
significance for, both the defenders and assailants of liberal democratic
values, must be approached in a highly cautious, self-critical and nuanced
manner. Any rush to judgement that ignores a number of important
caveats by aiming to ‘conclude’ the Schmitt vs. critical theory debate in
a manner that is both decisive and definitive is problematic: and especially
so for would-be critical legal theorists, because of the serious risk
of undermining its own position, irrespective of its cognitive and political
While the relevance, either as opportunity or as pathology, of Carl
Schmitt’s ideas and their political implications has become increasingly
clear within the last decade, it is still necessary explicitly to justify my
strategy of employing Neumann as a foil to Schmitt. Here, it is important
to emphasise that not only did Neumann engage very directly with
Schmitt’s ideas and suffer at first hand from the fascist regime which the
latter endorsed, supported and received great esteem from, but also that
Neumann’s tradition employed a distinctly “immanent” form of critique.
The type of critique could be developed as a possible remedy for some of
the pitfalls associated with a purely external form of critique of Schmitt:
one which simply presupposes the validity of the liberal values which he
so forcefully attacks (Salter 1998).
The current resurgence of interest in Franz Neumann’s contribution to
legal scholarship, which is found mainly in the work of Cotterrell (1995:
Chs. 8, 10, 1996), Chase (1984), Tribe (1981, 1987), Ruete (1986) and
Scheuerman (1993, 1994, 1996) is both timely and incomplete. It is timely
because the extreme cold war polarisation in both ideology and international
relations that effectively eclipsed and marginalised Neumann’s
position has now finally collapsed. As both ideological polarisation and
entrenchment of antagonistic East-West power-blocs intensified during the
late 1940s and early 1950s, Neumann’s social democratic programme of
research and proposed policy reforms became increasingly marginalised.
Since his programme supported a strong defence of a distinctly socialist
version of the “rule of law” and individual rights, it was widely seen
as “too liberal” for most orthodox Marxists, particularly those affiliated
with Marxist-Leninist political parties. Yet, at the same time, Neumann’s
programme incorporated important elements of a strong socialist critique
of internally contradictory aspects of liberalism, including the co-existence
of economic libertarianism and political authoritarianism, and hence
appeared ‘too left-wing’ for right-wingers. Neumann’s writings occupied
a centre-left social democratic position that was itself located in the fast
crumbling space between Marxism and liberal democracy; between an
authoritarian version of state socialism lead by Stalin’s Soviet Union and
a free-market capitalism dominated by American strategic interests and
McCarthyite purges of ‘un-American’ left-wingers (Jay 1973: 161; Hirst
1987; cf. Hughes 1969). In many ways, Neumann’s ideas pre-figure the
currently fashionable but vague emphasis upon developing a “third way”
between unregulated capitalism and state socialism. Following the post-
1989 collapse of state socialism and related cold war polarisation, it is not
surprising to discover a legal scholar reviewing the results of the current
revival of academic interest in Neumann’s writings referring to “events
catching up with us, rather than with Neumann’s message” (Hirst 1987:
474). The lack of an immediate audience can be the price paid by scholarship
whose own message and mode of analysis are both “ahead of their
If any resurgent legal theory located on the authoritarian right of the
political spectrum is currently poised to lend support to a comprehensive
attack upon the basic presuppositions of rule of law and liberal democracy
more generally, it is that of Carl Schmitt (Habermas 1989: 128–139,
1997: 107–117). Habermas makes the point that although Carl Schmitt
died in 1985 at the age of 97, the polemical character of his obituaries
reveals the continuing power of his writings on constitutional law, sovereignty
and politics to provoke strong reactions of both a positive and
negative kind. Such reactions reflect the powerful influence exerted upon
successive generations of (exclusively male) legal, constitutional, philosophical
and historical scholars within the German academy by Schmitt’s
dramatic, even melodramatic, works on constitutional questions – including
the constitutional status of the welfare state (Habermas 1989: 33–34,
1994: 72, 161, 1997: 112). For Habermas, Schmitt’s influence is extensive
even amongst senior judicial circles within the German establishment, i.e.,
“all the way up to the federal constitutional court” (1989: 128, 134, cf.
1997: 116–117). Arguably, within Germany at least, the strongest countertradition
to Schmitt is the Critical Theory tradition, especially the legal
and political theorists Franz Neumann and – to a lesser extent – Otto
Kirchheimer and, more recently, Jürgen Habermas. A strong argument can
be made that Neumann remains one of the most powerful thinkers against
a Schmittian conception – or, better, misinterpretation – of the rule of law.1
Given the recent resurgence of scholarly and political interest in
Schmitt, it should prove interesting to explore, albeit in a preliminary
manner, certain difficulties that arise in connection with the contemporary
relevance of Schmitt. Such difficulties may well cause many tempted by
his ideas in abstraction from their political implications to find reason to
pause before endorsing them (Tribe 1987: 9–14).
Carl Schmitt has been aptly described as the “crown jurist of the Third
Reich”, as “the self-appointed ideologue of the Nazis” (Schwab 1989:
3), as the “leading theorist of Fascism” (Dyzenhaus 1994: 1) and as
having “offered the most impressive intellectual defence of Nazism ever
devised” (O’Sullivan 1983: 153). Many scholarly accounts of fascism
and its legal and judicial underpinnings devote considerable attention
to Schmitt’s significant contribution to authoritarian/totalitarian perspectives
upon constitutional law and political theory (Barker 1942: 287–292;
Neumann 1942; O’Sullivan 1983). From 1933 onwards, Schmitt not only
assisted with drafting Nazi legislation, such as the municipal laws of
December 1933, and other “practical questions of Prussian administration
and organisation” as a member of the Prussian State Council (July 1933–
1945), but also defended Hitler’s extra-judicial executions of his rivals
within the National Socialist movement (Schmitt in Bendersky 1987: 120).
In autumn 1933, Schmitt accepted the directorship of the Berlin faculty
group of the Nazi lawyers’ guild, an organisation created by Hans Frank
who – as Minister for Legal Affairs and Governor General of Poland
(1939–1945) – was, with respect to the latter role, himself later convicted
at Nuremberg of war crimes and crimes against humanity (Maus 1997).
Schmitt’s standing within this organisation was, he claimed, dependent
upon the patronage and support of Frank, which itself ended in December
1936, following Schmitt’s denunciation by the SS (Schmitt in Bendersky
1987: 121).
Worse still, as Schmitt began to be outflanked by the Nazi zealots of
the SS during an internal power struggle, he made a series of increasingly
desperate attempts to demonstrate his Nazi and anti-Semitic credentials
(Bendersky 1987: 95). Schmitt’s reputation as a genuine Nazi was under
1 I owe this point to correspondence with Alfons S?llner (13 May 1998).
threat from those who recalled his close personal relations during the
Weimar Republic with a number of Jewish colleagues, scholars and
friends. In response to such suspicions, Schmitt organised a “conference”
to promote the policy of having the works of Jewish legal writers labelled
as “non-Germanic”, and then ultimately expelled from libraries of “pure
German” legal scholarship. As Bendersky notes, “[T]his was self-serving,
dishonest and morally despicable – and it failed to convince even his
opponents that it was anything but a sham.” (1987: 96). Schmitt also
included a series of gratuitous anti-Semitic remarks within his published
articles and books (Bendersky 1987: 95, n. 13). Such conduct represents
only some of the more noteworthy examples of Schmitt’s contributions
to the fascist project (Caldwell 1994: 406–407; Carty 1995: 1246; Muller
It is, however, important to realise that Schmitt’s Weimar writings
belong more closely to the fascist tradition exemplified by Mussolini
and Franco, as distinct from the racially-based irrationalism of German
National Socialism (Bendersky 1987: 91; Neumann 1986: 286–289;
Scheuerman 1996: 186, n. 24). Indeed, Schmitt’s own political theory
of law cannot – as he emphasised during his Nuremberg interrogation –
consistently endorse any essentially racial and biological – as distinct from
essentially political – grounds for the unity of the sovereign nation state
(Schmitt in Bendersky 1987: 110–111; Scheuerman 1994: 23). Indeed,
Schmitt argues that it was precisely his refusal to endorse a racially-based
theory of Grossraum, i.e., large-scale geo-political power blocs, as distinct
from his own critical, scholarly concept, which explains the “failure” of
his work between 1933–1945 to feature within the approved lists of offi-
cial Nazi publications (Schmitt in Bendersky 1987: 110–111, 114–115).
As a result, his theory is intellectually far closer to Mussolini’s distinctive
version of Fascism and to authoritarian right-wing thought more generally
than to the specifically Nazi variant (Schmitt 1985: 76; cf. Neumann 1942:
48). Schmitt unintentionally acknowledged this when he argued to his
Nuremberg prosecutors that it was another Fascist state – Franco’s Spain –
which sought to honour his work with prizes, a public acclamation which
the Nazis refused to allow to take place. Indeed, Schmitt’s conception
of Grossraum as a post-liberal conception of sovereignty within international
affairs was itself strongly attacked by orthodox Nazi legal scholars
precisely for its “neglect” of racial factors (Bendersky 1987: 93).
Although Schmitt advocated a series of anti-Semitic measures during
the mid-1930s, this arguably represented crass political opportunism on
his part. It represented an ultimately unsuccessful effort to prove his Nazi
credentials in the face of his internal enemies within the SS. Indeed,
Schmitt’s supporters have strongly argued that the racist zealots within
the SS had good grounds for suspecting that Schmitt’s explicitly pro-
Nazi statements were opportunistic and self-defensive responses. Such
statements were not essentially grounded in his prior political conduct,
his strong friendships with Jewish colleagues and students (including
Kircheimer and Neumann) or his continuing scholarship. His internal critics
within the Nazi movement, whose views are now being echoed by
Schmitt’s apologists, argue that Schmitt, who had once argued in favour
of banning all extra-constitutional parties, including both the Communist
and Nazi parties, had ‘discovered’ his commitment to National Socialism
only after this movement had taken power.
Such arguments about the unprincipled political opportunism of
Schmitt’s personal involvement with the Nazi movement may help to
acquit his academic writings of the charge of representing a “pure” illustration
of Nazi philosophy. However, they do not establish that such
scholarship can offer any significant opposition to other forms of Fascism
that are no less authoritarian. The political significance of Schmitt’s theoretical
writings is not that they are a pure embodiment of the Nazi variant
of Fascism as such; it is rather that their arguments offer – at most – only
a minimal degree of resistance to an extreme nationalistic, fascist, and
specifically Nazi, appropriation (Habermas 1997: 107).
It is, perhaps, no coincidence that it is in Italy that Schmitt’s writings
have gained enormous popularity amongst Socialists and Marxists, to the
obvious dismay and incomprehension of their German counterparts, such
as Habermas, for whom the fascistic authoritarian-statist dimension of
Schmitt’s work has taken on a somewhat different association (S?llner
1987; Habermas 1989: 135, 138). However, it is arguable that because
Schmitt’s increasingly influential scholarship more closely resembles that
type of authoritarian-conservatism given expression by Italian, as distinct
from racially-based National Socialist types of Fascism, makes it in one
sense more ominous for any convinced democrat and civil libertarian. This
is because the Italian variant is less impeded by the accusation of representing
an essentially genocidal movement: one whose agenda culminated in
the Holocaust. The legacy of anti-Semitic genocide represents a factor that
even those who, such as the recently resurgent German People’s Union in
Germany, presently seek to promote a renewed version of far-right politics
are generally forced, contrary to all the historical evidence, to deny, minimise
or (with active ‘scholarly’ help from revisionist historians) relativise
(Habermas 1989). Had it ever been possible directly to link Schmitt’s
specifically scholarly activity with a series of racialist assumptions, whose
practical policy implications entailed support for a genocidal campaign of
extermination, then it is difficult to envisage that the current renaissance in
Schmitt scholarship would have achieved its present degree of momentum
(Habermas 1997: 107). If such a linkage were clearly demonstrable, then
it is unlikely that the large and growing groups of Schmittian scholars
would have been able to breach the ‘taboo’ with which Schmitt’s name was
associated within liberal and socialist circles from 1945 to the mid-1980s.
During Schmitt’s interrogation by assistant Nuremberg prosecutor
Robert Kempner, the latter responded to Schmitt’s boast about his popularity
as a scholar that, “[T]o the extent that it relates to audience, your
reputation vacillates in history” (Bendersky 1987: 103). However, perhaps
even Kempner would have been surprised at the truth of his own remarks
with respect to the current “Schmitt renaissance” (Habermas 1997: 107).
In short, Schmitt’s affinity withMussolini’s corporatist version of Fascism,
whose popular appeal is less impeded by its recent past, could make
his type of authoritarian approach to constitutional issues all the more
dangerous for the liberal rights-based project.
There is an interesting argument that the key to the relationship between
Neumann and Schmitt can, in part, be derived from their respective political
biographies, and that Schmitt’s interpretation of war crimes is broadly
consistent not only with his personal support for some version of Fascism
but with his intellectual position more generally. Certainly, one ironic
contradiction is that those amongst Schmitt’s contemporary supporters
who are most anxious to downplay the significance of his collaboration
with Nazism for his overall theory of law nevertheless insist that his
analysis of war crimes, including those arguments written specifically
for the defence of leading Nazis industrialists at the Nuremberg trials,
is utterly consistent with his more general theory (cf. Ulmen 1996: 106).
Schmitt even complained bitterly in his post-war diary (his Glossarium)
about the fact that his fundamental critique of the Nuremberg principles
was not published prior to, or during, the main trials themselves, something
which would have allowed him to “die willingly” (1991: 167). Fortunately
for Schmitt, from at least 1949 onwards leading right-wing industrialists,
some of whom had themselves been vulnerable to war crimes charges,
returned Schmitt’s favour by supporting him financially via the oddly
named “Academia Moralis” association. The latter was, in effect, little
more than a Schmitt “support group”, which was largely comprised of
individuals impressed with his refusal to renounce National Socialism
(Habermas 1997: 110–111).
In April 1945, Schmitt was arrested, interrogated and released by the
Russian Army in Berlin, before being re-arrested by the American Army
six months later. In June 1945, he was made to respond to the fragebogen
questionnaire. The latter had been designed by Neumann and Marcuse for
the American Civil Affairs Units in order to identify those leading Nazis
who should be interned and further investigated, as potential war criminals
(Bower 1983: 185; Bendersky 1983: 265–266). According to Ulmen,
during Summer 1945, “in war ravaged Berlin”, Schmitt had composed
[A] comprehensive legal opinion (hereafter Gutachten) concerning the criminality of
aggressive war and the possibility of indicting industrialist as well as military and political
leaders. . . . Its significance transcends its immediate purpose because it addresses the
question of the reconstitution of international law. Thus Quaritisch [an edited collection
of Schmitt’s previously unpublished works, first published in 1994] is justified in locating
Schmitt’s Gutachten in the history of “aggressive wars” from the Nuremberg and Tokyo
Trials to recent UN deliberations concerning the war in the Balkans (Ulmen 1996: 101).
This legal opinion was written for the benefit of prominent German industrialists,
such as Friedrich Flick,2 who were preparing for their trial on war
crimes charges at Nuremberg. These industrialists had both supported, and
– through forced labour from prisoners of war – benefited from, National
Socialism (cf. Ulmen 1996: 105). Neumann’s OSS section, by contrast,
had pressed hard for the indictment of leading German capitalists at the
proposed Nuremberg trials, since these represented both the financiers of
genocide, and the major beneficiaries of slave labour. Given the resistance
of the British, the OSS were removed from this “economic” aspect of the
Nuremberg case.
Schmitt argued that the pretensions of the Allied Military Government
and Nuremberg prosecutors to be carrying forward a genuinely “universalist”
project on behalf of humanity as such, and the associated values
of basic human rights, was necessarily spurious (cf. Habermas 1994: 20,
31). The trial had been set up to preclude, by fiat, any challenge to the
legal validity of the newly invented principles of criminalising “aggressive
war”,3 and hence represented the particularism of “victors’ justice”
(Schmitt 1994: 170, cited in Ulmen 1996: 101). Schmitt’s critique here
is perverse, given his dismissive views of the supreme value afforded to
2 Flick was sentenced to seven years imprisonment at Nuremberg. His grandson’s
attempts to fund a chair at Oxford University were rejected by that University’s ethics
committee in April 1996.
3 As ever, Schmitt is keen to historicise the question by emphasising the newly invented
quality of the crime of “waging aggressive war”, and retracing the contingencies of its
emergence. See his Glossarium entries of August 31, 1947 published in Schmitt (1991), 6.
“discussion” within liberal political theory, and his proposal for a renewed
focus upon non-rational “decision”, including the plebiscitory acclamation
of dictatorship, as a supposedly viable substitute for public deliberation
(Habermas 1997: 110–111).
Characteristically, in the post-war context, Schmitt was more concerned
with producing a critique of the Allies’ justification of the Nuremberg
criminalisation of genocidal and expansionist wars, which he dismissed
as mere political scapegoating, than he was with recognising the rights of
the victims of Nazism. His references to the gross character of Nazi genocidal
actions were made primarily to set up a rhetorical contrast between
the self-evident guilt of those most directly involved (even where this
is not directly covered by “prior positive criminal law”) and the relative
lack of (legal) responsibility of others who were only indirectly involved.
Amongst the latter were “economically active, ordinary” industrialists,
who had found themselves under immediate threat within a “critical situation”.
The latter group, he argues, could “excuse” their conduct (Schmitt
1994: 16, 23, cited in Ulmen 1996: 108–109). Whilst this second category
may be held morally responsible for their support of the Nazi regime, and
may also be required to make financial reparations – for example to former
prisoners of war abused as slave labour – they should not be made to
face any criminal responsibility at international law. As will be discussed
below, Schmitt sought to evade war crimes charges by placing his own
conduct firmly within this latter category.
Schmitt further suggests that if provisions of international criminal law
are to be extended in such a way as to bring them into conflict with
the legal duties imposed upon civilians during war by their own nation’s
system of positive law, then this would create major difficulties. It would
place individual citizens in an impossible position, since they would then
be facing criminal liability under one legal system for actions which are
deemed to constitute mandatory duties by another, without providing that
individual with any immediate or effective personal protection in the meantime.
Schmitt argues that there is no basis for placing individuals in this
invidious “Catch 22” position. He further suggests that international law
cannot impose on civilians the strict obligation to differentiate between
“just” and “unjust” wars, and then make treachery to one’s own country –
whether by acts of treason or sabotage – a formal legal requirement, with
non-compliance subject to the threat of criminalisation by war crimes trials
(Ulmen 1996: 111).
Schmitt further argues that the Nuremberg criminalisation of “waging
aggressive war” represented the triumph of a depoliticised legalism:
Schmitt asks rhetorically: “Why is it criminal?” Because it is not law but power which
decides the outcome. It is a crime only if a people rejects the proceedings of the
international court (Ulmen 1996: 102).
His position here fails to acknowledge a serious internal contradiction.
Even if it were true that Nuremberg did represent an essentially particularistic
form of “victors’ justice”, such particularism4 and political justice is –
according to Schmitt himself – an inevitable feature of the politics of social
life “as such”; and hence nomore represents a fitting target for a Schmittian
type of critique than the law of gravity (Habermas 1994: 9–10, 21). Those,
such as Schmitt, who are committed to a “false concretism” that rejects
any element of universalism within normative issues, are precluded from
condemning a particularistic orientation in others (cf. Habermas 1994:
21–22). Habermas makes the point that Schmitt’s particularism takes the
semi-pathological fractious politics of Balkan history as an expression of
the unchanging essence of “the political” (Habermas 1994: 163). Schmitt
thus undercuts both the specificity and the uniquely immoral character of
genocidal actions, such as ‘ethnic cleansing’, which in turn have motivated
the re-launch of war crimes trials.
Whilst in 1945 Schmitt accepted that some retribution must be extracted
from Hitler’s accomplices, his “ingenious” argument was that the extreme
character of their “monstrous atrocities”, especially those of his former
rivals in the SS and Gestapo, precluded any adequate response by either
municipal or international law. Here, the clear implication is that only
an extra-judicial mode of punishment, i.e., a type of “political justice”,
would be appropriate, since this would prevent such atrocities from ever
becoming a legal precedent (Schmitt 1994: 109). This represented a point
of agreement with Neumann’s OSS team.5 Schmitt’s direct legal support
for leading Nazis facing war crimes charges was bolstered by his related
critique of the very idea that Allied forces had pursued a “just war” against
the Third Reich. For Schmitt, the concept of a “just war” represented
an outmoded and problematic idea originating in scholastic theologians
such as Vitoria (Ulmen 1996: 103); nor can “waging an aggressive war”,
as proposed by the Nuremberg principles, appeal to Vitoria as a precedent.
This is because the initial trials had already been set up in such a
way as to both preclude the possibility of attaching responsibility for the
initial causes of the war, and to criminalise the military “aggression” itself
(Ulmen 1996: 103). Schmitt suggested that whereas there was an estab-
4 That is, “the a priori certainty that ideas will prostrate themselves before interests
everytime” (Habermas 1994: 9–10).
5 See R&A Report 2571, “Problems Concerning the Treatment of War Criminals’
September 1944.
lished legal basis for criminalising atrocities carried out by soldiers during
war, the attempt to criminalise “aggressive war” as a distinct and independent
offence was especially problematic. This represented an extension
of international criminal law which was not only unprecedented but also
both retrospective and contradictory. Such an extension violated the longstanding
rights of national states to engage in warfare free of any dubious
moralistic distinction between “just” or “unjust” wars that effectively
reduced defeated states to the status of captured pirates (Ulmen 1996:
106–107, 110).
Schmitt emphasised that the rule of law prohibition on retroactive criminalisation,
even of grossly immoral acts, had formed a long-standing part
of English and European law, although recognised only partially by American
law. Consequently, the Nuremberg trials represented the triumph of
American over European jurisprudence (Ulmen 1996: 107–108). Whereas
the former tend to fuse legal and moral criteria, the latter have always
paid greater attention to the specifically legal difficulties of criminalising
aggressive wars, such as lack of clear definition, sanctions or organisational
means of enforcement (Ulmen 1996: 107–108). In his far from
disinterested critique of the Nuremberg innovations, Schmitt also extends
his earlier analysis on the basis of an address given in the late 1930s.
This insisted that a viable system of international law could no more
embody a “discriminatory” concept of war containing “two antithetical
concepts of war”, than it could embody “two different concepts of neutrality”
(Schmitt, cited in Ulmen 1996: 101). Schmitt’s argument implies that
the very distinction between just and unjust war was imposed by military
victors for the sake not only of re-emphasising their enemies’ defeat, but
also to vindicate their own particular interests. In his topsy-turvy moral
universe, it is the leading Nazis who are the true “victims”.
From September 26th 1945 to March 1947, Schmitt was detained in different
internment camps “as a potential defendant in the War Crimes Trials”
(Bendersky 1987: 91). Even a sympathetic commentator, such as Bendersky,
recognises that “[T]he decision to interrogate him at Nuremberg
was largely due to the infamous reputation he had acquired abroad . . . of
Schmitt as the ‘Crown Jurist’ of the Third Reich and the theorist of Nazi
expansionism” (1987: 91). What Bendersky does not state is that it was
Neumann’s powerful and sustained indictment of Schmitt in his English
language book Behemoth (1942/44), which was largely responsible for
this reputation in the eyes of the American forces, including the prosec-
ution team at Nuremberg. During his period of internment, Schmitt was
questioned first by the U.S. Army counter-intelligence officials and then
by Ossip Flechtheim, who was a German émigré working as a lawyer with
the U.S. war crimes staff. These preliminary sessions were followed up by
a more sustained session of interrogation by Robert Kempner, a German
émigré who was serving as an attorney within Justice Jackson’s war crimes
prosecution team.
Kempner was a colleague of Neumann within OSS, and – according to
those whose war crimes investigations involved working with both men –
they enjoyed good personal and professional relations.6 Indeed, the claims
made about Schmitt by his initial U.S. interrogators contain references
to how Schmitt was the “official constitutional apologist” for the Nazi
regime,7 and how he was “the most eminent legal exponent of the Nazi
ideology”. These statements represent close paraphrases from Neumann’s
Behemoth – a book which informed not only the U.S. Army’s Civil Affairs
Guides (themselves partly co-authored by Neumann’s section of OSS)
but was also circulated amongst Justice Jackson’s prosecutors, many of
whose members were dependent on these works for their knowledge of
the internal structure and ideology of the Third Reich.8
Kempner’s interrogation focused upon Schmitt’s alleged “participation,
direct and indirect, in the planning of wars of aggression, of war crimes and
of crimes against humanity” (Kempner, in Bendersky 1987: 98). Although
Kempner attempted to force Schmitt to respond to “yes or no” type questions,
the latter displayed considerable tactical skill in challenging the very
terms of the questions. Often Schmitt gave qualified, negative replies, or
minor concessions, in respect of only the least serious matters, a tactic
which often successfully frustrated any “follow up” questions. Kempner
failed in his attempts to force Schmitt to draw analogies between the
latter’s role as both a constitutional lawyer and member of the Prussian
Chancery and the activities of Hans Lammers, who was Hitler’s legal
advisor and chief of the overall Reich Chancery (Bendersky 1987: 104).
Whilst Schmitt was willing9 to help Kempner by analysing, as a “constitutional
expert”, the legal responsibility of Lammers under Nuremberg
principles, he refused to accept that any analogies could then be drawn with
6 I owe this point to Drexel Sprecher (telephone interview 5 May 1998).
7 See “Preliminary Interrogation Report of Carl Schmitt”, Berlin, October 18, 1945,
NA RG 238.
8 I owe this point to a telephone interview with Bradley Smith, 2 June 1998.
9 But only if the official record clearly stated that he was acting upon the specific
instruction of the prosecution authorities.
his own position. Lammers was later sentenced to 20 years’ imprisonment
for war crimes (ibid., 104).
Schmitt successfully blocked all Kempner’s efforts to interpret his
action as lending material intellectual support for the “preparation of
aggressive wars”, either generally or for the SS in particular. Schmitt
answered less by a denial of relevant facts than with a self-serving reinterpretation
of their constitutional and legal significance (ibid., 102). He
denied that, despite being one of “the leading university professors in this
field”, i.e., within public and international law, he had ever exercised any
role at the crucial point of decision-making comparable with that of “other
high state or party officials” (ibid., 102). Schmitt’s ingenious argument
was that Kempner’s accusation ignored the minimal role that respect for
the purely scholarly realm of intellectual ideas can ever play within the
policy-making processes of an essentially totalitarian state.
On the vital legal question of whether or not Schmitt’s writings
and various institutional involvements contributed to the “waging of an
aggressive war” under the Nuremberg principles, Schmitt turned the tables
upon his accusers. He argued that he had already been involved in a
debate with ProfessorWehberg, a famous Geneva pacifist and international
lawyer who helped originate the very idea that the preparation for such a
war should constitute a “war crime”. At no time during this debate had
Wehberg ever suggested that Schmitt’s own theory, with which the former
was already familiar, could be linked in any way to the proposed war crime
of “waging aggressive war”. Schmitt argued that if one of the earliest and
most important originators of a key Nuremberg principle had failed to
accuse Schmitt’s work of complicity in war crimes as “a party to the new
criminal offense inaugurated by Wehberg himself”, then this fact should
be treated as conclusive, and hence taken to represent a decisive defence
(ibid., 113–114). This rhetorically powerful argument is, however, entirely
inconsistent with Schmitt’s other assertion that a radical dichotomy exists
between the realms of theory and practice. The fact that, during a specifically
theoretical debate within an academic law journal, Wehberg did not
explicitly accuse Schmitt (an equally famous law professor) of being a war
criminal, should – on the latter’s own premises – be treated as completely
irrelevant to the question of liability within the realm of judicial “practice”.
In other words, for Schmitt to presuppose the existence of any necessary
element of reciprocal dependency and interaction between constitutional
theory and political practice would undermine his own defence arguments.
Schmitt also argued that his r?le as both a Prussian State Councillor and
as Director of the Nazi Lawyers’ Guild was confined to purely technical
matters. Such affairs had no bearing on the charge of “collaborating in the
preparation of a war of aggression” at a “decisive point” (ibid., 120, 123).
Kempner also failed to force Schmitt to accept the validity of Neumann’s
earlier charge, first made in Behemoth, that he had provided – both in
substance and in style – “an international legal theory of Lebensraum”,
i.e., an idea of existential “living space” central to Hitler’s justification for
German military invasion and expansionism (ibid., 99–100).What is more,
Schmitt himself was surely right when, in his defence against the Nuremberg
prosecutors, he argued that no serious scholar who was concerned
for his or her reputation as such, could ever have endorsed a patently
unscientific and irrationalistic Nazi racial ideology (ibid., 111). However,
and contrary to the intentions behind Schmitt’s claims, if this argument
were valid, then to establish a serious discrepancy between the core of his
intellectual position and that of a pure Nazi “philosophy” would hardly
be a significant achievement. Whilst his defenders argue that “the Nazis
totally neglected his work” (Bendersky 1987: 91) to establish that such a
discrepancy exists is problematic even in Schmitt’s own terms; it is to seek
to make a virtue out of a necessity.
Here it should be recalled that, as Schmitt himself recognised, his ideological
value to the Nazis did not lie in the substance of his legal and
constitutional theories at all. Instead, he was of value as an already internationally
famous legal scholar who had also publicly endorsed the National
Socialist party, both generally and in his leadership of the Nazi lawyers’
guild. During his interrogation with Kempner, Schmitt argued that
[I]f a few authorities, journalists and propagandists tolerated my name being used as a
figurehead, that is still no theoretical foundation. It belongs much more to the style of a
totalitarian system, which exploits the names of numerous scholars, destroys what it cannot
exploit, and seeks to exploit what it cannot destroy (ibid., 116).
Here, it is important to make a distinction that is easily overlooked. It is
one thing for a fascist political movement to capitalise upon the public
endorsement of someone who is already famous as a legal scholar (Bendersky
1983: 250–262, 1987: 95): it is quite another for the same movement
to seek to justify its very existence and overall programme by reference
to the rational force of intellectual arguments produced by the scholarship
of one of its leading members. And it is at least arguable that Schmitt’s
relationship to the Nazi movement falls under the former heading.
Indeed, it was his position as a famous legal theorist, who had already
earned an international reputation independently of any explicit promotion
of Nazism as the source of all human justice, that gave Schmitt’s
later endorsement of Hitler its particular value for the National Socialist
movement. If, by contrast, Schmitt had entirely compromised his scholarly
reputation by making anti-Semitic speeches to mass rallies, or integrat-
ing primitive racial factors into the core of his underlying constitutional
theories, then this would have diminished his strategic value to the Nazis.
Schmitt could no longer be paraded as a famous academic ornament to
their genocidal regime. Here it is important to recall that, notwithstanding
his fall from favour in 1936, Schmitt was paraded by the Nazi state around
the Law Faculties of Spain, Budapest and occupied Europe between 1942–
1943 as part of an attempt to present a respectably scholarly “front” for
Hitler’s Germany (Kempner, cited in Bendersky 1987: 100–101, 106; see
Schmitt 1987 at 109).
Kempner’s interrogation attempted to force Schmitt to admit that these
visits, and other associated writings, “provided the scholarly foundation for
war crimes, crimes against humanity, the forceful expansion and widening
of Grossraum”. Kempner also suggested to Schmitt that, by virtue of
his intellectual endorsement, he was no less liable than those who had
personally carried out Nazi atrocities:
[W]e are of the opinion the executing agencies in the administration, the economy and
military are not more important than the men who conceived the theory and the plans for
the entire affair . . . to what extent did you provide the theoretical foundation for Hitlerian
Grossraum policy? (cited in Bendersky 1987: 101).
Schmitt’s interesting response was not to deny his fame and high reputation
as a scholar but to argue that, with respect to government activity,
“such a position was not ‘decisive’, not even as a basis for making decisive
[E]nough to say here that it was impossible for a chair in jurisprudence to be regarded
as a decisive position or as a basis for exercising a decisive influence at decisive points
in Hitler’s totalitarian system, given its prevailing conceptions of science, education and
jurisprudence. Such a position would never have been considered for initiation into Hitler’s
secret planning. . . . Theories and ideas do have influence, but this influence is not traceable
to ‘decisive points’. The effects of spoken, written and printed words are various and
incalculable. . . . When an author makes public the results of this research and thinking,
his intent is as scientific as his intellectual habitus is scholarly – the purpose is to further
knowledge and the exchange of opinion. It is well known that my publications have always
greatly stimulated both. But many listeners and readers do not respond to theories and
formulations in a scholarly way, but automatically and unreflectively link them with practical
matters and their momentary goals and interests. This is particularly dangerous with
theories, theses and formulations of international law, constitutional law and politics (ibid.,
A hostile reading of Schmitt’s response would suggest that he is seeking to
deflect any responsibility for the practical effects of his scholarly activities
from himself, and on to both segments of his audience and the scholarly
discipline to which he had contributed. His argument was that the type of
proof required to demonstrate a causal link between theoretical ideas and
practical actions transcends the realm of what can be decided by any judicial
process, with the result that “not even the political opinions expressed
in Hitler’s Mein Kampf constitute criminal planning as such” (ibid., 125).
If scholars fail to recognise the easily-overlooked distinction between
the exploitation of an already famous scholar, and the promotion of an
academic whose work is grounded in Nazi racial theories, then they
risk making a highly questionable supposition. They could assume that
Nazism, which glorified in its own emotive appeals to “volkish” attachments
to “blood and soil” and irrational hatred of everything “foreign”, was
itself based upon, or even required grounding in, theoretical scholarship.
Clearly irrationalist political movements do not typically depend upon, or
submit themselves to, processes of critical self-examination guided by the
rational force of argument. For example, it is certainly possible to enter
into a meaningful debate over the merits of the historical, political and
constitutional arguments for and against an authoritarian state embodying
a Marxist-Leninist or corporatist Italian-Fascist ideology. Considering the
source of the appeal of Nazism, however, such a rationalistic endeavour
would have been almost entirely meaningless, and could even have become
self-defeating. Schmitt maintained that
[M]y theory of Grossraum and international law has a broad scholarly framework, is the
result of scholarly research; it is a theory which had been and should be taken seriously
as a scientific hypothesis. Hitler had no Grossraum policy in the sense of this theory. He
pursued a policy inimical to this theory in both thought and principle. . . . Hitler’s policy
of conquest was so primitive that any kind of scholarly analysis necessarily threatened it
(ibid., 116).
According to Schmitt, the difference between his own conception and a
biological-racial Nazi ideology, together with the former’s potential threat
to the latter, explained why Schmitt ideas were responded to in “deadly
silence” by the Nazi Party press (ibid., 116). However, for Schmitt to argue,
as he did before his Nuremberg interrogators, that his scholarship scrupulously
avoided any discussion of racial theories of the state or military
expansionism, hardly has the argumentative force that he intended it to
have (cf. ibid., 95).
The most powerful forces appealed to by Nazi ideologies were emotive
ties based upon the very ‘identity politics’ which both Neumann and
Habermas accuse Schmitt of prioritising. Rhetorical appeals to these prerational
sources of political authority were designed precisely to neutralise
any obligation on the part of their audience to ‘weigh up’ the relative
force of competing arguments and counter-arguments before making either
political judgements or any other type of practical commitment. In this
sense, Neumann could, perhaps, have accepted Schmitt’s argument that
Nazism not only lacked any scholarly foundation but was hostile to the
very critical processes of rational inquiry required by independent scholarship.
Yet even if this were the case, Schmitt could still be accused of
refusing to exploit, and in fact actively concealing, the alleged tension
between his own scholarship and the requirements of Nazi propaganda.
Indeed, by admitting that some degree of connection necessarily existed
between the theoretical and practical realms, Schmitt does appear to
have further undermined the theory/practice dichotomy on which rests his
general defence to the charge of being a war criminal.
As discussed already, the charge put to Schmitt by the Nuremberg interrogators,
which partly echoes Neumann’s famous critique in Behemoth,
was that he had provided the “theoretical foundations” for the Nazi
regime’s militaristic expansionism. This contribution had, allegedly, not
only been made directly with his formulation of the concept of Grossraum,
or spatial “power-blocs”, as the central focus of international law, but also
implicitly. It was implicit in Schmitt’s policy of discounting those traditional
legal interpretations that recognise valid normative limits upon such
expansion. Thus Kempner’s questioning implied that Schmitt’s writings
had helped undermine the internal forces of resistance to fascism within
the Weimar Republic by discrediting those normative limits which confine
the expression of “political will” to rational principles based upon individual,
group and national rights. That is, Schmitt’s repeated and radical
attacks upon the basic universalistic presuppositions of liberal democracy,
which any well-functioning constitutional state must maintain against the
threat of Fascism, provided ideological support for Nazi expansionism.
Schmitt’s response to this charge was to insist upon a strict dichotomy
between the realms of political practice and legal theory: he distinguished,
that is to say, between the formulation of theoretical ideas within a specifically
scholarly context oriented towards the production of knowledge for its
own sake (“scholarly research which had no other purpose than to further
knowledge” (ibid., 108)) and the contingent reinterpretation and practical
employment of such ideas by politicians and others who had their own
pragmatic agendas. Hence, Schmitt argued, “[T]here is also no protection
against the exploitation of the results of scholarly research” (ibid., 115).
Schmitt thus made effective, if disingenuous, use of a strict
theory/practice dichotomy; one which claims to rest upon the “objective”
distinction between “serious scholarly theory” on the one hand and
“propaganda” on the other, whose subjective equivalent is the intention
to promote purely scholarly research – as distinct from practical goals
(ibid., 115). Relying upon this questionable dichotomy, Schmitt stated to
Kempner that, although he was willing to accept responsibility for the
consequence of his personal actions, he could not reasonably be held
responsible for how his specifically theoretical ideas were received and
applied outside the scholarly realm of ideas (ibid., 108).
Kempner’s powerful response to Schmitt’s self-interested tactic was
to challenge the validity of the underlying dichotomy itself. He did so
by asking the rhetorical question: “[What] if, however, what you call the
pursuit of knowledge results in the murder of millions of people?” (ibid.,
101). Kempner’s charge is itself clearly predicated upon a refusal to accept
an absolute dichotomy between value-free scholarship and political practice.
Schmitt responded to this question with a strategy, which has recently
become familiar within contemporary Germany as part of the so-called
“historians’ debate”, of not so much denying the factual existence of Nazi
genocide as ‘sanitising’ its historical significance. This strategy involves
placing the Nazi genocide ‘on a par’ with other historical events that also
involved mass extermination, such as the nuclear attack on Hiroshima or
the Allied bombing of Dresden (Habermas 1994: 31, 1989, 1997: 107):
“Christianity also resulted in the murder of millions of people”, as Schmitt
put it (Bendersky 1987: 104). Not surprisingly, Habermas directly accuses
Schmitt of having provided the intellectual arguments which support
such revisionist sanitisation by means of the historical relativisation of a
uniquely evil event (Habermas 1994: 161, 1997: 107).
Kempner’s second line of attack was to quote back to Schmitt those
parts of the latter’s publications from 1933 which advocated that the entire
system of German law should be interpreted, administered and enforced in
the light of “the spirit” of National Socialist principles and aims: in other
words, that the German legal system should, in effect, be reduced to an
instrument of political will as defined by Hitler. Schmitt’s chilling response
was to say: “it was a thesis” (Bendersky 1987: 106). In fact, Schmitt’s
exact words used in his notorious “New Principles of National Socialist
Law” had already been translated by Neumann: “[F]or the application
and handling of the legal standards of conduct by the judge, the lawyer,
the magistrate, and the law teacher, the principles of National Socialism
are directly and exclusively decisive” (Neumann 1986: 295). Once again
Schmitt’s ‘legal skills’ were sufficient to deflect the issue by his claiming
to be giving the meaning of National Socialism a connotation that
was entirely different from the official Nazi Party version. Hence, what
Schmitt claimed to be promoting was his “own meaning” of National
Socialism, which (as he insisted repeatedly) lacked both racial foundations
and genocidal ambitions (Bendersky 1987: 106). As Habermas notes:
[A]ccording to what they [Schmitt and Heidegger] themselves profess, they have nothing
to regret after 1945, for they feel that the movement they had supported in 1933 had let
themdown. They had seen National Socialismin the light of their own ideas . . . a variation
on what is ‘their own’ (1997: 116–117).
Yet the weakness of Schmitt’s position here, which neither Kempner (nor
most recently Habermas) have thoroughly followed up, was that his own
“five principles” included the idea that the definition of what is truly
in accord with National Socialism is “solely determined by the leader”
(Schmitt 1933, cited in Neumann 1986: 298). Habermas has, however,
recently noted the delusionary character of the vain aspiration of both
Schmitt and Heidegger to “lead the leader”, given the independence of
totalitarian regimes from scholarly foundations that they allege (Habermas
1997: 108).
The fact that during his Nuremberg interrogation Schmitt reinterpreted
his endorsement of National Socialism as a purely theoretical and dispassionate
“diagnosis”, one that neither explicitly advocated nor defended
German military expansionism in a polemical way, could be seen as more
a matter of form than substance. Kempner confronted Schmitt with quotations
from the latter’s publications which contained plainly anti-Semitic
statements dissociating his conception of Grossraum theory from any
Jewish ancestry, and whose “content and form” Schmitt accepted was
in “the Goebbels’ style”. However, Schmitt also claimed that – when
viewed in their “serious scholarly context” – the “intent, method and
formulation” of such statements was “pure diagnosis”. He also insisted
that everything he wrote, even remarks that linked Jewish authors with
the “dissolution of concretely determined territorial orders”, was written
as scholarship only. It was “intended as scholarship, as a scholarly thesis
I would defend before any scholarly body in the world” (in Bendersky
1987: 100). Kempner suggested that no legal scholar such as Schmitt –
who had himself written the seminal work on political dictatorship (i.e.,
Schmitt 1919) – could, when challenged to explain his advocacy of allowing
“the spirit” of National Socialism to guide all legal activities, deny
knowledge of how actual dictatorships really work. True to form, Schmitt
simply replied that Hitler’s totalitarian type of authoritarian regime was in
fact “actually something new”, so that his earlier research was irrelevant to
the question of his responsibility within the Third Reich (ibid., 107).
The outcome of Kempner’s interrogation was that insufficient evidence
was deemed forthcoming to warrant Schmitt’s being formally charged with
war crimes (Wiegandt 1995: 1575–1576). Schmitt’s interrogation reports
concluded that he was the “official constitutional apologist” for Hitler, and
the “most eminent legal exponent of the Nazi Ideology” (cited in Bendersky
1983: 266). However, Schmitt was not formally charged for three
reasons: his legalistic guile during prolonged interrogations; his disingenu-
ous defences about the purely “scholarly” nature of his involvements with
Nazism; and the difficulties in establishing to a high standard of proof
any causal relationship between his theoretical ideas and practical events
(Bendersky 1983: 265–273; Wiegandt 1995: 1575–1576). In the absence
of further admissable evidence of direct involvements in war crimes, as
strictly defined by the initial Nuremberg judgements, his punishment was
to have his university career ended and denied access to his personal library
of books and other research material (Bendersky 1983: 265–266; Vagts
1990: 677–678; Dyzenhaus 1997: 3).
After his period of internment, Schmitt refused “resolutely” to submit
to even a token procedure of “de-Nazification”. He thus became an “exception
even among the heavily compromised jurists”, since he alone was not
allowed to return to university teaching. Schmitt’s refusal to submit to the
detailed “de-Nazification” procedure drawn up by Neumann and Marcuse
whilst employed by the OSS was based on the grounds that he considered
the “entire process artificial and meaningless in his case” (Bendersky 1987:
Habermas is particularly critical of the political (and ethical) signi-
ficance of the resolute refusal by Schmitt (and other theorists such as
Heidegger) publicly to exhibit even the slightest measure of self-criticism;
or to either apologise for or retract their public support for Nazism (Habermas
1997: 108). With reference to the sentiments contained in Schmitt’s
personal record from the late 1940s, Habermas suggests that
Schmitt was obviously pathologically incapable of judging the proportions of what
happened and his own role in it; he denies everything and exculpates himself; he
fulminates against ‘the criminalizers in Nuremberg’, against the ‘constructors of crimes
against humanity; he derisively says, ‘crimes against humanity are perpetuated by
Germans. Crimes for humanity are perpetuated on Germans. That is the only difference’
. . . (Habermas 1997: 113–114).
Habermas argues that this “resolute” stance by Nazi scholars is consistent,
albeit in a perverse way, with the very existentialist character of their explicit
theories (cf. Wolin 1990). More specifically, their refusal to apologise
or retract is consistent with a commitment to the idea that the central
constitutive phenomenon of social life is the sheer force of individual
“decision”. Such force is itself supposed to be based upon a deep-seated
“existential commitment” operating at a primordial level which itself
transcends the realm of rational or moral considerations (1989: 132).
Habermas also cites in this context Schmitt’s rhetorical question, “Which
was actually more indecent, supporting Hitler in 1933 or spitting on him
in 1945?”. Habermas suggests that this refusal to recognise in public
any need to retract earlier support for Nazism has been partly respons-
ible for the continued influence of both Schmitt and Heidegger within
postwar Germany, for their “incompatible effect”, especially amongst the
generation who were born after the Nazi epoch (Habermas 1994: 72,
1997: 108–109). Schmitt provided an alternative to those other compromised
academics and schools of thought, which – having been re-admitted
to élite positions – had every reason to continue to exclude Schmitt in
order to deflect attention from their own Nazi collaborations. Schmitt’s
own continuing appeal was partly due to the fact that, having refused to
renounce Fascism, he “was able to articulate German continuities with
which others went on living, but about which they never spoke” (Habermas
1997: 115). Habermas particularly objects to the fact that Schmitt’s
own theory precludes any need to reconsider even those aspects of his
activities which were directly and indirectly supportive of the Nazi version
of Fascism, even after the gruesome evidence of the Holocaust had been
uncovered. Here, the fact that “his tune is the same as it once was” –
combined with the continuing rejection within Schmitt’s post-war writings
of any “belief in discussion” – is, for Habermas, “reason enough to pale at
it” (Habermas 1989: 139).
This section will discuss the proposition that it is important to address
the continuing repercussions of the scholarly, political and institutional
struggle between Schmitt and Neumann during, and then immediately
after, the period of the Weimar republic. This dispute, which was as
much political as jurisprudential, centred around the value that should be
accorded to the rule of law and liberal democracy more generally.
Any analysis of these two writers would have to address a cluster
of distinct but related issues faced by convinced democrats, such as
Neumann, when attempting to re-assert – at institutional as well as scholarly
levels – the rule of law in response to Nazi genocide (Neumann
1986; 1949). For example, one major and continuing difficulty faced
by Neumann, and other employees of the OSS’s Research and Analysis
Branch who were involved in war crimes research between 1943 and 1945,
lay in how to attribute legal responsibility for programmes of ‘successful’
genocide. A crucial question here was to devise a policy that was
not flawed by an in-built contradiction between institutional means and
ultimate ends. In other words, the problem entailed finding a way to attribute
legal responsibility to Nazi war criminals with respect to their gross
violations of human rights, but in a manner that did not itself violate the
very rule of law which fascist and other genocidal regimes treat with such
marked contempt.10
Furthermore, given Schmitt’s remorseless scholarly attack upon the
foundations of the rule of law, which he made at constitutional, international
law and political levels (Scheuerman 1996), how should a contemporary
audience assess, and then respond to, Schmitt’s contribution to the
theory and practice of Fascism? If his critique of the principle of the rule of
law as an outmoded ideological expression of the “liberal” phase of early
capitalism is correct, then is it still meaningful to identify the discrepancy
between the authoritarian practical implications of Schmitt’s legal theory
and liberal democratic principles which depend upon the validity of the
rule of law? Does Neumann’s own complex institutional, political and
scholarly reaction to Schmitt and the wider fascist movement that the latter
both supported, and – for a time – received considerable acclamation from,
contain lessons for the present? Now that over fifty years have elapsed
since the Nuremberg war crimes trials, how should democratically inclined
legal scholars react to the contemporary resurgence in scholarly and legal
interest in Schmitt’s ideas?
My own response, which in some respects follows, but also builds upon,
the lead given previously by Scheuerman (1993, 1994, 1996), Dyzenhaus
(1997) and Habermas (1989, 1997) has been to conduct intensive research
into the intellectual and political biography of one of Schmitt’s most rigorous
and original German critics – Franz Neumann. This is because there
is good reason to believe that Neumann’s critique of Schmitt is no less
relevant for, or challenging to, a second generation of Schmittian legal and
constitutional theorists as it was to Schmitt himself. It is possible that the
very accusations posed to Schmitt about the responsibility of academics
have retained a significant degree of force – not least with respect to those
who are currently promoting a “Schmitt renaissance” (Habermas 1997:
In a classic case of double standards, Schmitt’s recently published criticism
of the legal basis for the Nuremberg war crime trials draws upon
precisely those traditional liberal principles which – as the Nazi’s “Crown
Jurist” – he had attacked remorselessly during the decade prior to the Nazi
takeover in 1933 (Schmitt 1994). Arguably, an immanent form of criticism
in which those who, in practice, willingly violate liberal constitutionalism
10 Here, we can distinguish between outright criminality and violence by elements
within the Nazi movement that was allowed to go unpunished, and ‘constitutional’ violations
of the rule of law as when the Reichstag recognised the leader’s ‘right’ to deviate from
existing law without sanction or other form of accountability for so doing: see Bendersky
1987: 121, n. 4.
are judged by their own procedures and criteria, rather by reference to
those standards of liberal constitutionalism, could represent an appropriate
response here. Indeed, it could be fruitful to explore the implications
of the argument that if any single instance of legal theory merits being
subjected to a strictly internal or immanent type of critique, it is that of
Carl Schmitt (Habermas 1997: 111). If the present generation of legal
academics fails even to try to make the strongest possible case against the
authoritarian implications of the present resurgence in Schmittian scholarship,
then how will subsequent historians judge this omission? This
question becomes especially pressing if the current scholarly resurgence
operates as a contributory factor in paving the way for a political revival of
Fascism as a political mass-movement.
From a strictly legal perspective, based firmly upon the Nuremberg
principles, contemporary followers of Schmitt could no doubt seek to
contest accusations that those principles too give ideological support to
anti-democratic forces by their practice of undermining universalistic principles
of humanitarianism and universal human rights. Nevertheless, there
is still an argument for re-assessing such criticisms in a broader political,
moral and jurisprudential sense. The absence of conduct sufficient
to warrant a prosecution for war crimes is hardly a sufficient criterion of
political, moral or ethical responsibility.
It is here that it may be fruitful to contrast Schmitt’s analytic conclusions
on liberal democracy with those of Neumann. In contrast to Schmitt,
it is at least arguable that Neumann’s social democratic model of law,
and constitutional rights more generally, is capable of taking full account
of the intellectual force of Schmitt’s critique of various internal contradictions
within liberal democracy (Scheuerman 1994: Ch. 7). Neumann’s
model has equal diagnostic force in relation to the challenge that advanced
monopoly-capitalist societies pose for the presuppositions of the rule of
law interpreted according to the presuppositions of the Diceyian model.
Furthermore, his mature model, whose synthesis of socialist and liberal
democratic themes centres around the implications of a rationalist conception
of political freedom, represents a sharp contrast to the authoritarianism
contained in Schmitt’s decisionist – and hence irrationalist – perspective.
Neumann thus does not succumb to Schmitt’s idea that the only viable
solution to the contradictions of liberal democracy is some version of
elected dictatorship, in which governance is ‘liberated’ from all rightsbased
constitutional norms and safeguards (Seitzer 1997: 223). If Schmitt’s
“post-liberal” model leads to the answer that dictatorship, albeit of a
plebiscitory form, is the ‘answer’ to the difficulties facing liberal democracy,
then there is some reason for believing that he is misinterpreting
what is at issue. Indeed, it is arguable that plebiscites, which reduce political
culture to a binary choice between two alternative proposals supplied
by the regime itself, have historically formed part of dictatorships, rather
than comprising a bulwark against it.11 This conclusion could, in turn,
open up the possibility that Neumann’s critique of Schmitt offers a less
problematic alternative – at least for those not already predisposed towards
dictatorial authoritarianism.
The question of how to approach the Neumann/Schmitt relationship itself
raises a series of difficult issues with respect to conventional expectations
of scholarly neutrality and evenhandedness. To what extent should jurists
adopt a stance that gives a platform for the promotion of authoritarianism?
Any account of the starkly opposed, if not entirely unconnected, models of
law articulated by Neumann and Schmitt should not, I believe, pretend to
be impartial. It should instead define and present its analysis as a deliberate
exercise in advocacy – not in judicial neutrality. Thus my own research
within this field is written explicitly from the left-Hegelian or critical
theory tradition that is embodied, in part, within Neumann’s writings on
law, and – to a lesser extent – in those of both Otto Kirchheimer (1961)
and Jürgen Habermas (1996).
The polemical task of arguing the case for Schmitt and other fascist
theorists such as Heidegger can be safely left to others. It is clear from
the contributions to the special issues devoted to Schmitt by the oncesocialist
journal Telos that there is no shortage of intelligent academics
who are both willing and able to defend him (Telos 1987, cf. Scheuerman
1994: 7–8). Certainly the remorseless rise of Schmitt scholarship,
which in Germany is beginning to take on the characteristics of a major
academic industry, demonstrates how a significant number of postmarxists,
authoritarian conservatives and postmodernists possess a special empathy
for Schmitt’s “existential” approach to the interface between legal, constitutional
and political issues (Dyzenhaus 1997: Ch. 1; McCarthy 1990:
159–162; Scheuerman 1994: 8; Habermas 1994: 21; 1997: 107).
It is possible that Schmitt’s rhetorically powerful critique of the basic
presuppositions of liberal democracy contains one element of truth suffi-
cient to confirm his status as this century’s pre-eminent fascist jurist. This
11 I owe this point to comments on an earlier draft by my colleague David Seymour.
half-truth is contained in his argument – made in Legality and Legitimacy12
– that it is self-defeating for democrats to promote a policy of giving an
“equal chance” to those whose entire project is oriented towards the violent
eradication of democracy itself, especially the democratic right of dissent
(Ulmen 1996: 104, n. 104). Between 1930 and 1933, Schmitt’s writings
and political advice to the authoritarian conservative regime of Schleicher
supported, as a last resort, proposals to ban all extra-constitutional parties,
including the National Socialists (Bendersky 1987: 91). However, the other
side of this half-truth, i.e., its half-lie, is that attempts to ‘outlaw’ antidemocratic
movements may not only legitimate an increase in state power
and control over political culture and civil society more generally, but also
create the idea that participation in such movements represents a form of
‘rebellion’ against authority. This pseudo-rebellious quality has become
clear from the support given to French and German neo-Fascist parties by
young people who are both unemployed and alienated from conventional
politics. Habermas maintains that Schmitt’s status as an outcast in the
postwar years appealed precisely to younger scholars who were terminally
bored with, and alienated from, conventional political theories, and
consequently became attracted to the conspiratorial ‘aura’ associated with
this unrepentant scholar (1997: 109–110).
Precisely because I have adopted the social democratic perspective of
Neumann, however I must – like Neumann himself – do justice to the clear
scholarly merits and rhetorical appeal of Schmitt’s own account of law. It is
most important to resist the temptation to engage in any entirely polemical
and dismissive ‘trashing’ of Schmitt’s work by means of the imposition of
extrinsic liberal-democratic criteria, which then duplicates the very authoritarian
hostility to competing forms of life that it purports to condemn
in Fascism. This type of reaction would itself be counterproductive. In
other words, adopting an authoritarian reaction to the presence of fascist
legal theory would defeat the object of the exercise; it would serve only to
duplicate, and hence multiply, the very presence of that which democrats
should oppose. Instead, it is better to follow the example of Neumann’s
own lead, which differentiated between propagandistic, (predominantly)
“scholarly” and implicitly ideological facets of Schmitt’s work, without
ever succumbing to the naiveté of thinking that the scholarly aspects were
entirely free of the influence of specific ideological presuppositions and
A dialectical approach to law, associated with the Frankfurt School
tradition, employs a notion of truth as the reciprocal adequacy of concept
(e.g., “justice”) to the object of lived-experience (e.g., the experience of
12 First published in 1932, 2nd edition 1968 (Berlin: Duncker and Humblot 1968).
how a court decides a particular case). This approach employs a strictly
immanent critique in order to identify relative shortfalls on both sides of the
concept/experienced-object equation (Salter and Shaw 1994; Salter 1998).
As a result, it prefers to envisage the relationship between truth and falsity
as points along a continuum – as distinct from a stark juxtaposition of ‘all
or nothing’. This, in turn, supports a strictly immanent mode of critique
during which a rival theory is shown to be inadequate, incoherent or selfcontradictory
when judged by its own explicit or presupposed criteria of
validity. Hence, in the present context, it is not a case of asserting the
comprehensive truth of Neumann’s model of law as opposed to the unmitigated
falsity of Schmitt’s. On the contrary, it is important to understand
how it was possible for the latter’s highly politicised and conceptually
rigorous analysis of law to exert a limited attraction upon Neumann and
– to a greater extent – Kirchheimer. Whilst the authoritarian conclusions
that Schmitt draws from his empirical diagnosis of the various tensions and
contradictions within the underlying presuppositions of liberal democracy
are largely spurious, the diagnosis of various pathological features does
articulate historical phenomena which continue to pose challenges for the
If Schmitt’s empirical diagnosis (as distinct from his authoritarian
prognosis) lacked any sociological reality or scholarly merits whatsoever,
then it is difficult to explain why Neumann and Kirchheimer (and
many other intelligent socialists including the early Habermas) ever had
reason to take it seriously at all. Indeed, it is arguable that part of the
relevance of Neumann lies in his attempt to come to terms, albeit from
a quite different and politically opposed left-Hegelian tradition, with a
related series of institutional pathologies and challenges to democratic
ideals. Neumann reacted to the problems caused by a form of democracy
predicated upon economic liberalism’s transformation into a monopolistic
form of advanced capitalism by arguing for an anti-capitalist interpretation
of the rule of law (Scheuerman 1994: Ch. 4). Schmitt, by contrast,
employed a related diagnosis to locate the source of the problem within
parliamentary democracy itself, and then advocated an authoritarian dictatorship
as a would-be ‘solution’ to contemporary social problems. Hence
anyone addressing the Schmitt/Neumann relationship needs to be careful
not to assume that, because they approached the question of democracy
from opposed perspectives, and advocated contrasting solutions, there be
nothing in common between their analyses.
Furthermore, it is important to must seek to do justice not only to the
complexity of the relationship between Schmitt and Neumann but also to
the relative strengths and weaknesses of both writers.13 As an antidote to
the temptation simply to denounce Schmitt, it is important to realise that
Schmitt represented a fitting scholarly as well as political opponent for
Neumann, who refused to waste time and effort engaging with lesser intellects
within the juristic wing of the Nazi movement such as Hans Frank,
who was later sentenced to death at Nuremberg.
However, establishing a viable relationship between the specifically
jurisprudential and political dimensions of the Schmitt/Neumann relationship
is unlikely to be a straightforward affair. There is the perennial
danger of a premature ‘resolution’ of the complexity of this relationship
by means of reductionism, i.e., reducing scholarly disputes into ‘nothing
but’ ideological conflicts, or vice-versa.
The present article has addressed the dangers of approaching the close
connection between Carl Schmitt and a fascist form of legal theory in a
simplistically polemical fashion. It suggests that only a highly nuanced
and dialectical form of internal criticism of Schmitt, and self-criticism of
his protagonists, can constitute an appropriate interpretative orientation
to the debate between Schmittian legal theory and the Frankfurt School.
While the interaction between intellectual and political biography is clearly
illustrated within the scholarly works of both Schmitt and Neumann, the
responsibilities of the legal theorist – acting as such – are to confront
arguments with counter-arguments. Such confrontation should avoid seeking
refuge in a Schmitt-like deception regarding the supposedly absolute
dichotomy between legal theory and political/criminal responsibility –
least of all when issues of the contribution of lawyers to acts of genocide
are at stake. Whilst the employment of a distinctly immanent form of
critique to the contradictions within Schmitt’s ideas, and between these
and the latter’s political engagements, can be criticised for giving too
much leeway to a neo-fascist scholar, in this context such critique gives
a theoretical school sufficient rope with which to hang itself.
13 The contrast between internal critiques and dismissive form of ‘trashing’ by means
of the imposition of external criteria is not intended as an exhaustive exposition of all the
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Department of Law
University of Lancaster
[email protected]