Saturday, October 21, 2006
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.
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.
Beautifully done, Scott.
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.
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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.
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