an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Carl Schmitt, the Dolchstoßlegende and the Law of Armed Conflict
A scholar reading Carl Schmitt's writings on international law topics today is overcome with a sense of a brilliant but fundamentally flawed mind that undergoes some radical mood shifts. There is the post-World War II Schmitt, carefully offering up cautious, traditional conservative understandings of international public law. There is the Schmitt of the 1930's with his astonishingly adventurous, and downright chilling interpretations in which the totality of international law is consumed, reprocessed and extruded so as to meet the short-term political objectives of the National Socialist Reich. Then there are the works of political theory, starting with Der Begriff des Politischen and developing in Nomos der Erde im Völkerrecht des Jus Publicum Europaeum (1950), which offer a take on international law which, it seems to me, is often difficult to distinguish from the international relations theory approach of Hans Morgenthau. This latter segment in particular helps to explain why Schmitt often seems so uncannily similar to current day Neoconservative writers like John Yoo, Jack Goldsmith and Eric Posner whose analysis is clearly indebted to Morgenthau. It often seems very difficult to reconcile these different manifestations of Schmitt other than by suggesting something very human: that careerist expedience plays a powerful role in the process. This is most evident of his writings in the core period of his advocacy of the interests of the National Socialist state, 1933-37.
A recent study by Prof. Dirk Blasius (University of Duisburg-Essen) makes an important contribution to the understanding of Schmitt's posture on international law issues in general, and his attitude towards the law of armed conflict in particular. In "Carl Schmitt und der 'Heereskonflikt' des Dritten Reiches 1934" (Carl Schmitt and the Third Reich's Army Conflict of 1934), Blasius pulls together a number of powerful texts from the period between the wars that put Schmitt's attitudes in a new light. The article is published in Germany's leading historical journal, Historische Zeitschrift, vol. 281, p. 659 (2005). The works that Blasius covers includes diary entries and archival manuscripts, the significant tract on the restructuring of the legal profession, Staat, Volk, Bewegung of 1933 (discussed in my last post), and the fairly obscure Staatsgefüge und Zusammenbruch des zweiten Reiches – Der Sieg des Bürgers über den Soldaten (State Structure and the Collapse of the Second Reich – the Victory of the Bourgeoisie over the Soldiers)(1934). These documents taken together reveal a crude and generally ahistorical take on Germany in the period between the war of 1866 and the founding of the Weimar Republic. At the same time they provide a key to understanding political views that drive Schmitt's legal posture, particularly on law of armed conflict issues.
The Frederican Military State Schmitt is a Westphalian Catholic with notorious and even racist disdain for Prussia, a curious background for a Prussian State Councillor. In his diary he writes that Prussia constituted a "victory of the Slavs over Germans, because the Germans Germanized the area to the east of the River Elbe, and the Slavs who lived there were incorporated into the Germans, with the product being called Prussians." (Blasius 661) Nevertheless, he views the modern Sparta, Prussia, as the core of Germany, and its state structures as imbued with essential characteristics of the German Volk in a sense that combines Herder and Hegel. Frederick the Great "has become a symbol for the unity of state and army, of governance and the conduct of war. His life and his state contain examples for all situations in which the problem of state, army and economy can be portrayed" (from a lecture at the University of Berlin, Jan. 24, 1934). This state concept maximized potential from both economic and military perspectives. "The revolutionary significance of this total reform is not reduced, but rather strengthened by its hierarchical and authoritarian structure. At this time, in 1807, the indivisible unity of state, army and economy was strongly impressed upon the consciousness not only of the great fomenters, the Barons von Stein [sic: probably intended to refer to Heinrich Friedrich Karl vom Stein], Scharnhorst, Boyen – but also their opponents." For Schmitt, this is a silver age of efficient and enlightened authoritarianism, which laid the foundations for the creation of the modern German state.
The Encroachments of the Liberal Bourgeoisie The silver age ends, however, with the arrival of a new middle class with liberal-democratic aspirations. "For Prussia, the leading German state, this period means an open or latent conflict between government and parliament, state and popular representation, and indeed a period of military and budgetary conflict."(Blasius 667) The second half of the nineteenth century presents a gradual process of accumulation of power by the bourgeoisie and extension of its political and economic rights. "The idea of a liberal democratic constitutional state gradually triumphed in domestic politics over the spirit of the German Volk, and then they triumphed militarily and in foreign policy through the disarming of the battling army."(Blasius 669)
The Dolchstoßlegende The key to Schmitt's narrative lies in the Dolchstoßlegende – the suggestion that the German Army was "stabbed in the back," i.e., betrayed, by liberal democratic forces in the waning days of the Second Reich. The Dolchstoßlegende suggests that limitations imposed by the civilian authorities in the course of the Great War led inexorably to the failure of the Germany Army. This in turn led to the abdication of the Emperor Wilhelm, the termination of the Second Reich, and the creation of the Weimar Republic. The argument is preposterous – in fact Germany was in the last days of the Great War little short of a military dictatorship. Nevertheless, conservative nationalists in Germany used the Dolchstoßlegende as their principle political weapon in their struggle with the forces of liberal democracy. Given the demonstrated potency of this rhetorical device following a military defeat, it has made numerous repeat performances in other societies. As Kevin Baker argued in the June 2006 issue of Harper's, key figures in the present Bush administration are linked to efforts to argue that the failure of the United States in Vietnam during the Nixon and Ford Administrations is attributable to a "sell out" by forces in the United States which opposed the war; Baker cites several other uses of this line of argument in American politics in the end of World War II and during the Korean War. The Schmitt edition of the Dolchstoßlegende involves an interesting permutation. "During the Great War," Schmitt writes, "every deterioration of the military or foreign policy situation would work to the domestic benefit of the opponent, that is, the Parliament, with nearly mathematical precision; it would also furnish constitutional arguments for its claims to power." (Staatsgefüge, 39). However, Schmitt comes to a focus not on the end phase of the war, but rather on its outset: the decision to avoid a focus of the combat on the fortified Franco-German frontier by swinging quickly through neutral Belgium. "On August 4, 1914, the German Chancellor [Bethmann Hollweg] declared the German invasion of Belgium to be an 'injustice,' for which compensation would be necessary. A childish notion of law governing emergencies, combined with a servile fear of the appearance of this act in the eyes of foreigners, produced this shameful capitulation, and betrayed Germany's popular army to the constitutional ideals and legal concepts of its foreign and domestic enemies." (Staatsgefüge, 41-42)
This is an audacious characterization in light of what Bethmann Hollweg actually said in this address in 1914. The Chancellor in fact acceded to the proposal of the General Staff that the neutrality of Belgium be violated. Indeed, he did so reciting the Bismarckian mantra "Not kennt kein Gebot!" (Necessity knows of no limitation). His sole bow to the requirements of international law was a vague promise that some accommodation would be offered the Belgians after Germany had obtained its military goals.(Blasius 672)
The invasion of a neutral state by Germany at the outset of the Great War was a clear violation of international law principles, and German actions afterwards raised a slew of issues under the Hague Conventions and Geneva Conventions. Schmitt's ostensible position is that Germany should have taken these steps with no remorse. His analysis seems completely driven by the concept of Kriegsraison, the view that military expediency alone can drive the action, and that no effective legal constraints existed. This reasoning seems very close to that of Carl Lüder, a well known German law of armed conflicts expert of this era, who argued for robust military action that was unfettered by concern for international law.
Schmitt's ahistorical analysis suggests a dismissive attitude towards basic law of armed conflict rules and a will to be driven by his best assessment of the short-term political interests of his state. As I noted previously, this is the attitude which ultimately drove internal analysis in the Oberkommando der Wehrmacht, not the more conservative and traditional analysis of the post-World War II Schmitt. Posted
by Scott Horton [link]
I'm trying to tie this wonderful piece to my more immediate and modest goal of better wielding the Schmitt example as a refutation of the Yoo influenced arguments of today's administration apologists. As I read your article I can almost forgive Schmitt his perhaps naive admiration of Prussia's "silver age of efficient and enlightened authoritarianism". Likewise I can forgive Schmitt and all others for arguing that "constitutional ideals and legal concepts of [a nation's] foreign and domestic enemies" impair military and government efficiency. Which is to say I can forgive anyone coming to Yoo's conclusions or parroting his rationalizations---if they haven't read their history. But we know what became of Germany with the help of Schmitt's legal analysis; Germany turned to evil. Nor was Germany the first great example of a nation state to give too much power to, or place too much emphasis on, its military might only to crumble under the weight of oppression or go down in the mire of debauch.
The problem with Yooish thought and the terror laws passed (and in the works) by this administration are not found primarily in the laws themselves, but rather in the people who, looking at what they hope to accomplish with those laws, refuse or are unable to see the evils to which those same laws can be turned. Folks don't much like to think about good and evil these days; the ascendancy of "economic" analysis has foreclosed evaluation by that criteria set for most folks. But maybe it is time to refresh that view. No one can credibly disagree that the systematic wholesale slaughter of six million Jews was evil; there's a starting point. No one can credibly disagree that holding an innocent person for years without even hope of being charged or knowing the evidence against her is evil. And while we rightly shy away from judging evils on some simple linear spectrum, it is still fair, if not fully accurate, to say that the evil of the Holocaust is greater than the evil of wrongly holding one innocent person without due process. Slippery slope reasoning is suspect, but attacks on due process do not slide down a slope to the evils of genocide; rather such attacks plow the soil in which the seeds of fascism can find a fertile home. That is the danger of Schmittian or Yooish thought. It is also the danger of foolishly elevating "economic" or utilitarian analysis to the level seen in early 20th Century Germany, and found in Chicago School economic analysis. Certainly there is much in the Constitution, by whatever means of interpretation one chooses, to support insisting we adhere to criteria sets other than simple utility. Justice, Freedom and Liberty each appear in the Constitution; economy, efficiency and utility are notably absent. Schmitt's prime mistake, then, might simply be a childish preoccupation with the goods of the burgeoning industrial age to the detriment of a non-empirical but epistemologically sounder Good (secular or otherwise) to which we all must answer.
Let me close by saying thanks for another great post, and I sure do envy you the depth of your scholarship.
It made me think of this recent comment by Immanuel Wallerstein, who is worried about the possible rise of a new "stab in the back" political atmosphere. He observes that a U.S. withdrawal from Iraq would represent a second catastrophic military defeat after the one already suffered in Vietnam.
"Withdrawal from Iraq will, I predict, be even more traumatic than the flight from Saigon in 1975. Two defeats will be devastating and also persuasive of the real limits of U.S. power.
"There are really only two possibilities at that point.
"One possibility is that there occurs a sort of profound soul-searching which would lead the United States to reevaluate its self-image, its sense of what is possible in the world-system now and in the future, and what kind of values it really believes in.
"If that happens, maybe forces within the Democratic Party will come forward to incarnate this reevaluation. Or maybe the whole political framework of the United States and its parties will change to reflect such a reevaluation.
"But of course there is a second possibility. It is that the nation is overcome with deep anger about the "loss" of its primacy, will seek scapegoats (and find them), and eventually move in the direction of gutting the U.S. Constitution and the liberties it presumes to defend.
"Something like that happened in Weimar Germany. And while the situation is different in many respects, and while I am not predicting in any sense the emergence of a Nazi party, nonetheless it will be a grievous disaster for the United States and the world if the United States moves to any significant degree in this direction."
The author's reminders and insights are timely. It is too soon to say whether the soil tilled in our own most recent five years is a suitable analog for growth of societal governance ailments of a scope to match the pernicious inaction which yielded Weimar and Weimar's failure. Hopefully, our political system is preparing its legion self cure. But the alarums are abroad.
Regarding this question of Frederican authoritarianism that somehow led to all the destruction and evil that followed. I happened to run into a web site, psychiccorner.com where the ghost of Frederick confronts this question. Here's part.
What do you have to say about the Holocaust?
Frederick: Let's not assign guilt to these countries for the purpose of understanding what really happened. We are talking about titanic geopolitical forces that are like hurricanes or earthquakes if they are not understood. There must be some explanation why these civilized European countries, could be forced into such desperate circumstances as occurred to all. These countries possessed society and a deep civilization. The events that occurred somehow didn't represent their civilized character, I mean Germans and Europeans in general. This is something important to remember. Non-Germans need not accept responsibility for the Holocaust although they must accept responsibility for the lack of common defense to which Europe gave in to, which was the larger cause of the Holocaust. With these things in mind, one can then begin to examine what was involved and without assigning blame or passing judgement, one can actually ponder how Europe could have salvaged itself or even prevented what happened.