Friday, June 30, 2017

Carl Schmitt in Contemporary U.S. Legal Theory

Mark Tushnet

No, not in any explicit form. But there's a truly dreadful paper circulating that (without citing Schmitt) structures its discussion of judges around the distinction between friends and enemies. Now, Schmitt was a really smart guy (though a Nazi), but the friend-enemy distinction that's at the heart of his account of politics is probably the most problematic idea he had (even if there is something to it). Of course all of us sometimes think about politics in friend-enemy terms, though generally, I think, as a metaphor rather than as an analytic construct. The paper seems to argue that judges should think of their colleagues as friends and enemies -- which doesn't seem to me altogether, say, desirable (nor, despite the authors' claims about descriptive accuracy, descriptively accurate either.)

[I should note that the paper's dreadfulness lies not in its use of the "friend-enemy" distinction but rather in its amateurish (in the most pejorative sense possible) "reliance" on formal philosophy. It brings to mind Martha Nussbaum's takedown of lawyers attempting to do philosophy. I could go on about the awfulness of the "philosophy" in the paper, but, frankly, doing so isn't worth my time or yours.]

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