Carl Schmitt: Theorist for the Reich

by Joseph W. Bendersky

Overview

Basing his work on the writings of Schmitt and his contemporaries, extensive new archival documentation, and parts of Schmitt's personal papers, Professor Bendersky uses Schmitt's public career as a framework for re-evaluating his contributions to political and legal theory. This book establishes that Schmitt's late Weimar writings were directed at preventing rather than encouraging the Nazi acquisition of power.

Originally published in 1983.

The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

Product Details

ISBN-13:	9780691641492
Publisher:	Princeton University Press
Publication date:	04/19/2016
Series:	Princeton Legacy Library , #702
Pages:	336
Product dimensions:	7.30(w) x 10.00(h) x 1.30(d)

Read an Excerpt

Carl Schmitt

Theorist for the Reich

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By Joseph W. Bendersky

PRINCETON UNIVERSITY PRESS

Copyright © 1983 Princeton University Press
All rights reserved.
ISBN: 978-0-691-05380-6

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CHAPTER 1

CATHOLIC HERITAGE, EDUCATION, AND THE STATE

The tranquil setting of Carl Schmitt's birth revealed little of what the future held for the man and his country. When Carl was born on July 11, 1888, the seemingly incessant process of German industrialization had just begun to make its mark on his birthplace of Plettenberg, a small town in the heart of the Sauerland. With the Rhine valley to the west and the highly industrialized Ruhr Basin to the north, the Sauerland protected its small towns and villages within the bosom of its mountain forests. A glance at the beautiful countryside in which Plettenberg is situated would prompt the most convinced materialist to reflect upon the romantic perception of life. Even today the town's halcyon environs instill a sense of nostalgia for a simpler age.

Although nature had been beneficent, history would not be so kind. The first sixty years of Schmitt's life were turbulent ones. In retrospect, he would write: "I have experienced the jolts and slashes of the reins of fate / Triumph and defeat, revolution and restoration." It would be a fate inextricably tied to the most volatile period in German history. For behind the idyllic facade of its natural beauty the germ of future upheaval was already planted in the Germany of Schmitt's youth. The nationalistic zeal of the age, permeating the minds of a majority of Germans, was counterbalanced by the disruptive effects of new and age-old diversities. Germany had reached the zenith of her power and prosperity; most Germans took pride in the great accomplishments of the nation; they were easily seduced by chauvinistic slogans. With the exception of the socialists and the more progressive-minded in the liberal and Catholic parties, the authoritarian state was accepted as almost a natural condition. But this nationalism and respect for the state did not eradicate the traditional sectarian and regional antagonisms which for generations had separated Catholic from Protestant, and Prussia from the rest of Germany. Recent political developments following unification and industrialization had only contributed further to this divisiveness. The new forces of liberalism and socialism now challenged not only conservatism and Christianity, but each other as well. The homogeneity Schmitt would later view as essential to any democracy was absent in the Wilhelmine Reich, while the same pluralistic forces he would criticize in Weimar had become firmly entrenched.

Schmitt himself was a child of these conflicting currents. Although he became a nationalist who always displayed considerable deference for the authority of the state, his identity was conditioned by a distinct sectarian and regional heritage. Born into a lower-middle-class Catholic family of modest means, Schmitt had little in common with the Protestant Prussian ruling class. By tradition and temperament he was a Rhinelander. Introducing himself to Ernst Niekisch, Schmitt remarked, "I am Roman by origin, tradition, and right." Indeed, there was an element of truth in this self-characterization. Short and vivacious, he appeared far more Latin than Germanic. His close friend Franz Blei was impressed by the French air about Schmitt. Both branches of Schmitfs family had, in fact, recently migrated from the Moselle valley. The maiden name of his mother, Louise, was Steinlein, a name indigenous to that region; the family still had French-speaking relatives in Lorraine. Over the years, Schmitt would speak of the Moselle valley as though he had been reared in that setting. Moselle wine was always his favorite, and he would make references such as "my nature is slow, silent, and easygoing, like a still river, like the Moselle." Perhaps this cultural identification also accounted for his ability to feel at home in Italy and Spain, to which he paid visits throughout his life.

Ever since their incorporation into Prussia in 1815, Rhenish Catholics had resisted assimilation. Suffering various forms of discrimination throughout the nineteenth century, culminating in the Kulturkampf, Catholics continued to view themselves as an oppressed minority. They jealously defended their cultural and religious autonomy against the power of the Prussian state. And family tradition had kept the Schmitts at the heart of the sectarian struggle. For generations they had been staunch defenders of the faith, with close ties to the clergy. Carl's father, Johann, remained an earnestly loyal and lifelong member of the Catholic Center Party. Three of Carl's great-uncles were priests who had been involved in the Kulturkampf, and at one time the family expected the young Carl to enter the priesthood. Reinforcing this alienation was the numerical preponderance of Protestants in Schmitt's birthplace. The parochial clannishness of Protestants and Catholics alike, occasionally resulting in sectarian violence, left an indelible mark on Schmitt's outlook. He would defend the Catholic cause into the mid-1920's; in later life he would draw distinctions between religious groups as if the intensity of animosity had not diminished since his youth. His tendency to view politics in terms of friend and enemy was no doubt greatly influenced by his youthful identity as part of a minority caught in a confessional struggle.

During Schmitt's youth Catholicism, and religion in general, was besieged from another quarter. The materialistic interpretation of life, buttressed by the growing scientific achievements of the nineteenth century, threatened the very nature of religious belief. Monism, Darwinism, naturalism, and scientism all indicated an increasing skepticism about the existence of a spiritual realm. Technology and industry had shifted societal emphasis away from traditional spiritual values and toward power and wealth. To the religious-minded this meant moral relativism and atheism, with the danger of replacing universal moral values with brute force and of relegating man to the status of a machine. Schmitt's co-religionists in Germany saw these insidious doctrines represented most clearly by socialism and liberalism, two inherently anti-clerical movements founded upon materialistic philosophies. German Catholics were caught between the rising tide of secularism, the ossified anti-clericalism of Prussian Protestantism, and the patriotic pressures of a nationalistic age.

These pressures became quite apparent to the young Carl when he encountered the Prussian public educational system. In 1900, after several years in a Catholic grammar school, he entered the public humanistic Gymnasium in Attendorn. Aside from the humanistic disciplines, with the traditional emphasis on Greek and Latin designed to cultivate character and intellect, he was taught mathematics and natural science by a teacher who stressed Darwinism. One of his instructors, a freethinker, went so far as to introduce him to David Friedrich Strauss's Life of Jesus, a book anathema to devout Christians because it challenged the gospel accounts of Christ. His parochial views were disturbed further by the prevailing nationalist interpretations of history. Previously his historical consciousness had been based upon books written from the Catholic standpoint; now he confronted the Prussian nationalism of Treitschke's historical thought. But Schmitt completed his studies with his faith undaunted and he never lost his deeply rooted aversion to materialistic philosophies. Like every German Catholic, however, Schmitt would still have to find some accommodation between his religious and his national identity.

Family acquaintances were astonished when Schmitt entered the University of Berlin in 1907, since it was highly unusual for someone of such modest economic background to study at a university. In making this choice, it seems that the wishes of Frau Schmitt prevailed over those of his father, who would have preferred more practical training than that offered by a university education. In the changing society of Wilhelmine Germany, however, a university degree opened the door to social mobility and a respected station in life for those lacking noble titles or wealth. And as the future would show, Schmitt was ambitious; he would try to compensate for his humble origins by winning public recognition of his achievements. The search for social distinction later led him to add the more exotic name of his first wife to his own. Several of his early publications thus bear the name Carl Schmitt-Dorotic. Gradually his own very common name became one of distinction in intellectual circles, but his ambition would often cloud the judgments of an otherwise acute mind.

Like countless members of his peer group, Schmitt arrived at the university with no precise career in mind; originally he intended to study philology. As he approached the staircase of Friedrich Wilhelm University, he noticed the sign for the law faculty. He remembered the advice of a highly successful uncle who, degrading philology as a very unpromising profession, had suggested jurisprudence. With casual indifference Schmitt registered with the law faculty, unaware that this would be the beginning of a fascinating, yet tragic, career. Later in life Schmitt said that if his critics knew of this rather nonchalant choice of a field of study, they would probably exclaim, "What misery we would have been spared, if this man had only walked into another area."

During his first course in Roman law Schmitt became thoroughly fascinated with jurisprudence; but he would never abandon his deep interest in art, philosophy, and literature. As Franz Blei later observed, Schmitt's learning extended far beyond his specialization; his broad intellect enabled him to recognize and grasp the essence of remote subjects, for which he had a penchant. He could discuss poetry or drama with the same degree of enthusiasm he displayed when debating a pressing legal issue; frequently he invoked an allegory to explain a political phenomenon. Shakespeare was a favorite and he eventually published a book on Hamlet. The poet Theodor Däubler and such prominent writers as Robert Musil, Ernst Jünger, and Hugo Ball were among his close friends and acquaintances. That such intellectual diversity enhanced the creativity and originality found in his legal and political studies is often acknowledged.

After two semesters in Berlin, Schmitt transferred to Munich, then to Strassburg. Such movement was typical for German undergraduates, but Schmitt's preference for the Southwest was indicative of his Rhenish disposition and his selection of Strassburg was important. Like Heidelberg and Freiburg, the University of Strassburg was becoming a center of anti-positivist and neo-Kantian thought, intellectual currents far more compatible with Schmitt's own spiritual predilections than the materialistic and positivistic thinking of the late nineteenth century. The rector of the University of Strassburg was Wilhelm Windelband, an exponent of neo-Kantian philosophy who represented the strong anti-positivist attitude spreading throughout various academic disciplines from history to science; jurisprudence was no exception. Whether Strassburg attracted Schmitt precisely for this reason is unknown. Unquestionably that institution exerted a substantial influence on his intellectual development, as he would always be noted for his uncompromising stand against the positivist school of law.

Beginning with German unification, positivism became the prevailing form of German legal thought, and it remained so for the latter part of the nineteenth century. In law, as with other disciplines, this meant an increasing emphasis on observation and analysis in lieu of idealist metaphysics or philosophical speculation. It signified a departure from the universalism of natural-law theory in favor of the idea that law was the creation of the sovereign state. This new trend stemmed directly from the scientific empiricism of a materialistic, positivistic era and was reinforced by the new emphasis on German national sovereignty and power that accompanied unification. German legal positivists such as Paul Laband argued that law was granted by the sovereign state; it was the responsibility of jurists merely to develop an empirical and systematic analysis of legal norms as they existed in statutes, decisions, and practice. Positivist law consisted of the norms created by the power of a state which recognized no higher authority. The universal ethical principles embodied in natural-law theories, which might conflict with these norms or with the power of the state, were disregarded.

By the early twentieth century, Rudolf Stammler and other neo-Kantian jurists disputed the absolute power of the state in establishing "law" or "right." The neo-Kantians contended that a "higher law" existed above the norms created by the state. This idea of higher law was not a return to natural-law theory; in fact, the concept always remained vague. Yet, it did contain the precept that right law existed prior to its establishment by the state and was not dependent upon state power.

Neo-Kantianism offered Schmitt a means of synthesizing the dichotomous sympathies he felt as a German nationalist and as a Catholic. The dictates of universal moral principles could be reconciled with the authority of the state; morality and power, religious conviction and nationalism, could be harmoniously integrated. It is not surprising therefore that neo-Kantian thought pervaded his early works. On the eve of World War I he wrote that the incontestable value of the state emanated, not from power, but from its relationship to a "higher law." It was the function of the state to transform this higher law into a wordly phenomenon. But neo-Kantian philosophy did not entirely overshadow his sectarianism. For Schmitt also noted that in doubtful cases the Catholic Church could decide what constituted right, because it embodied universal ethical norms.

Beyond these basic attitudes toward law, the state, and religion little is known of Schmitt's university studies and early years. But he must have excelled, since he graduated from Strassburg summa cum laude with a law degree in June of 1910. Whereupon he entered the Prussian civil service as a junior barrister in Düsseldorf, occupying that position until he passed his state assessor's examination in 1915. This routine service as a law clerk, intended to provide practical legal experience, was required before aspiring jurists were admitted into the profession. Schmitt made the expected advances while accumulating an impressive list of legal publications. By 1915 he had written three books and four articles, each well received by legal scholars. Walter Jellinek, a dean among German jurists, remarked that Schmitt's book on law and judgment "towered far above" the cross-section of countless works on the subject. Apparently a bright future was awaiting the young Schmitt.

Aspiring lawyers of Schmitt's calibre were usually destined for careers in either the bureaucracy or the university, two quite conservative institutions. The federal and Prussian bureaucracies, dominated by Prussian aristocrats, acted as the servants of the monarchy rather than as the executors of the will of the people as it was manifested in the Reichstag. By the end of the nineteenth century most German academicians had also become committed to the authoritarian state, paying homage to the Kaiser even in the university lecture halls. Many professors had also succumbed to the lure of chauvinistic nationalism and lent their support to the Pan-German League's clamor for German world-power status. Even among those who avoided such crude nationalistic expressions, there was a general consensus about the central importance of the state. Law professors debated whether the state was essentially power or imbued with a moral purpose, but the authority of the state was rarely questioned.

Although Schmitt never displayed any vulgar nationalistic sentiments, he did share the exalted view of the state so prevalent among his future colleagues. And his concept of the moral purpose of the state had no relationship to the liberal doctrine of individualism. From his perspective the freedom of the individual was secondary to the grandiose task allotted to the state. In fulfilling its function of establishing right law, the state could not tolerate opposition and consequently "no individual can have autonomy within the state." Schmitt believed that he was living in an anti-individualistic age, yet a great age. And it was precisely on the point of authoritarianism vs. liberal individualism that the views of many Catholics and those of non-Catholic conservatives coincided. For alongside many of the reformist tendencies within German political Catholicism there stood strains of authoritarianism. Since the Middle Ages the Catholic Church has fostered the notion of a hierarchy of authority descending from God. In Germany the right wing of the Catholic Center Party remained authoritarian from the late nineteenth century through the Weimar Republic. Within this faction Franz von Papen eventually rose to political prominence while trying to unite the Christian, national, and conservative forces against socialism. The more progressive wing of the party had also harbored similar attitudes before 1914. Matthias Erzberger, the spokesman for this faction and later a party leader, saw the Center as reformist, yet authoritarian. He wrote that an authoritarian party's "highest call is not freedom ... but natural and divine law." Such attitudes obviously made it easier for Schmitt to adjust to the bureaucratic and academic professions of Wilhelmine Germany.

(Continues...)

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Excerpted from Carl Schmitt by Joseph W. Bendersky. Copyright © 1983 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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Table of Contents

• FrontMatter, pg. i
• Contents, pg. vii
• Preface, pg. ix
• Acknowledgments, pg. xiii
• One. Catholic Heritage, Education, and the State, pg. 3
• Two. Political Consciousness, Democracy, and Dictatorship, pg. 21
• Three. Character and Perspectives of a University Professor, pg. 43
• Four. Parliamentarianism vs. Presidential Power, pg. 64
• Five. Friend-Enemy Thesis and the Inviolable Constitution, pg. 85
• Six. The Pouvoir Neutre as Defender of the Constitution, pg. 107
• Seven. Presidential Government in the Midst of Controversy, pg. 127
• Eight. Legality, Neutrality, and Reality: The Constitution, the Court, and the Nazis, pg. 145
• Nine. The Constitutional Dilemma and Hitler’s Legal Acquisition of Power, pg. 172
• Ten. The “Crown Jurist” of the Third Reich, pg. 195
• Eleven. The Purge of an Ideological Deviant, pg. 219
• Twelve. The Security of Silence? From Grossraum Theory to Nuremberg, pg. 243
• Epilogue, pg. 274
• Bibliography, pg. 289
• Index, pg. 313