Schmitt Not So Decisionist

Me at the group blog New APPS on Carl Schmitt. Opening two paragraphs below.

Nothing new to say about Schmitt here, but I think there is something to be said for clarifying in what ways Schmitt is not ‘Schmittian’ in some senses that influence some people. This issue came up in a teaching context recently and I think refers to a widespread tendency, which I believe can be tackled without hopefully falling into assault and battery on a straw man in order to clarify what is distinctive about Schmitt’s contribution.

The issue is of defining Carl Schmitt as a ‘decisionist’ who regards the question of who exercises sovereignty as arbitrary, as a question which begins and ends with the question who has the force to exercise sovereignty, with no regard for the legitimation of that sovereignty. This is severely one- sided, but does have some basis in some things Schmitt said, particularly in Political TheologyThe Concept of the Political, and Crisis in Parliamentary Democracy. The opening of Political Theology and a slightly later in the text quotation from Kierkegaard, with related discussion, is where decisionistic Schmitt seems most apparent.

Now read on

Carl Schmitt on Dictatorship. Reading the First English translation XIII

Concluding Comments

This has gone on longer than I expected, and posts so  far must total about 10,000 words, which is maybe a bit long for anyone just looking for a concise summary and overview. I hope the more detailed approach, with historical digressions where I found them  useful will be of benefit to some with regard to reading and contextualising Schmitt. The publication of the book is a step forward for English language commentary on, and understanding of Carl Schmitt, and I think it deserves to be widely read by anyone with some interest in Schmitt.

The most appropriate point for reading might be immediately after reading other early texts, which are all bit shorter. That means Political TheologyConcept of the PoliticalCrisis in Parliamentary Democracy, and  Political Romanticism. Like all these texts, it certainly benefits from some grasp of European history since the sixteenth century, and ideally the thirteenth century. It would be slightly odd to be interested in Schmitt and not acquire some basic knowledge of that history, but if you have developed an interest in Schmitt and are very fuzzy in these matters, now is the time to get into the outline of European history, with particular emphasis on those moments, which particularly interested Schmitt, which are generally significant in any case.

Those moments and aspects are: state system of Medieval ‘Christendom’ (with reference to Catholic western and central Europe), the adoption of Roman law by monarchies and the church, the medieval ‘estate’ system in politics, the apparent centralisation of monarchies and church, the Protestant Reformation, the Thirty Years War (mostly in Germany but bringing in most of Europe), early modern ‘absolutist’ monarchies, the English Civil War (a way of referring to more than war and which affects Scotland and Ireland as well as England), the rule of Oliver Cromwell in England (alone with Scotland and Ireland), classical/Enlightenment liberalism, the French Revolution, the 1848 Revolution (particularly in France, though is a cross European movement), the rise of Louis Napoleon Bonaparte after the 1848 Revolution, nineteenth century liberalism including the rise of representative government, the Bolshevik October Revolution in France, Weimar  Germany, the rise of Fascism in Italy (as an example of the rise of authoritarian or totalitarian regimes in Europe of the twenties and thirties). If any of this is unfamiliar, internet searches are a great first step for increasing familiarity, followed up by reading of any relevant books that look particularly introductory or readable or which just catch your imagination for some reason. I don’t want to put anyone off reading Schmitt who doesn’t know much of this history, but I remember reading classics of political thought and being frustrated when I couldn’t pick up on historical references, and if you are interested in a historical approach to political thought, reading history should be part of that interest. If you are starting to read Schmitt but are weak in this knowledge, try checking online every unfamiliar reference, which might slow down your reading, but should develop your historical sense by significant degree.

What my reading of Dictatorship has added to my own thinking on Schmitt is an even more enhanced sense of his ambiguity. The shifting about between a very sovereigntist hierarchical kind of conservatism and liberalism, here mostly with regard to Montesquieu, is stimulating if not entirely convincing. How convincing it is may depend on what one makes of Montesquieu. If Montesquieu is seen as definitely monarchist and as definitely emphasising the more traditionalist hierarchical aspects of aristocracy and other institutions under monarchy, then Schmitt’s position may seem relatively close to the ‘real’ Montesquieu. However, even those people are likely to find Schmitt’s argument that Montesquieu is explaining a form o sovereign unity, which can quickly switch to ‘dictatorship’ to defend itself, questionable and maybe the most likely to find it questionable, since they are inclined towards a very fastidious constitutionalist limit power version of Montesquieu.

These  doubt around Schmitt’s reading of Montesquieu can be seen in the context of Schmitt’s polemical style of thinking and writing. That is certainly not to say that Schmitt is a propagandist or vulgar abusive kind of writer. Far from it, though moments of passion do erupt. His ideas are always a least a little too deviant from any rigid program, a bit too unsettling to the dogmatic believer in anything. The polemic in Schmitt is a concern with the life of ideas, ideas which are basic to common existence in human societies, the changes in those ideas over time and what is also revealed about those ideas in their convict with other ideas. There is something very open and challenging about Schmitt’s simplifications and schematisations, because it is a very mobile shifting process, in which there is always a new formulation, a new conflict, or a new accommodation about to appear.

My knowledge of Schmitt’s biography inclines me to regard him as personally lacking in a strong sense of moral responsibility and accountability, as someone who thought his failings could be justified by his intellectual life. He told an American war crimes investigator that he was just a scholar at his desk during the National Socialist era, which is is quite an evasion, particularly regarding 1933 to 1936 and the nearest he came to an apology for his anti-Semitism and compromise with totalitarianism was to take up approvingly the thought of the Jewish Marxist aesthetic and cultural thinker, Walter Benjamin, in his own book on tragedy, Hamlet or Hecuba, which is a kind of return of a favour, since Benjamin had referred to Schmitt in The Origin of German Tragic Drama. Still if one  is going to limit one’s sense of moral accountability to acknowledging an intellectual debt to those whose persecution one had endorsed, that is a great tribute from a man who was undoubtedly  great in the quality of his political thought and his passion for political ideas, if not in  every other respect.

 

(The above refers to:

Carl Schmitt

Dictatorship

From the origin of the modern concept of sovereignty to proletarian class struggle

Translated by Michael Holzel and Graham Ward

Cambridge: Polity Press, 2014)

Carl Schmitt on Dictatorship. Reading the First English translation XII

Appendix

The Dictatorship of the Reich according to Article 48 of the Weimar Constitution

 

The Appendix is a text of 1924, in which Schmitt addresses the issue of the special powers that the President of the he first German republic could invoke and gets into more general questions of the nature of dictatorship and modern sovereignty. The relevant background  presumably, is the troubled birth of that first republic, the Weimar Republic or Weimar Germany, out of defeat in the First World War, followed by attempts at Bolshevik style revolution  and repressive actions by far right militias, in co-operation with the elected social democratic government, but involving its own attempt at a far right seizure of power.

The President at the time Schmitt presented this text was Friedrich Ebert, the social democratic leader. At this time the German Social Democratic Party was in principle Marxist, and continued to be until the 1950s, but of course had split with supporters of the Bolshevik Revolution during the World War One, and even before that increasingly looked like a party that was Marxist revolutionary in principle, but reforming of capitalism in practice. Anyway, it is interesting to think that Schmitt wrote a text on the powers that might be used by socialist leaning president.

The text may also look prophetic, with regard to German history and Schmitt’s own life since he was a lawyer for the German Chancellor Franz von Papen, under Ebert’s successor, the considerably more conservative Paul von Hindenburg on the issue of interpreting article 48. As a lawyer arguing on behalf of the von Papen, Schmitt defended martial law measures in the state of Prussia which had a radical effect on the rights of the Social Democratic state government, the National Socialist opposition and others.

This reflects Schmitt’s attitude to the National Socialists who regarded as dangerous and extreme, that is his attitude before they came into government, at which point he was happy to join the party and become head of the National Socialist jurists’ association from 1933 until 1936, when interested people in the SS denounced Schmitt as an opportunist, not a Nazi by conviction, who had not developed a racially based theory of law. Schmitt stepped down from his ‘Crown Jurist’ role but continued an academic career and wrote texts, which are at least accepting of the National Socialist regime. Since the Schmitt relationship with the Hitler regime lies some years ahead of the texts I am discussing, I won’t have anything further to say about it, but of course for Schmitt’s thought and career as a whole it adds something very important with regard to sovereignty and dictatorship in all forms.

The text on Article 48 mixes rather specific comments on German law of that time with more general comments on the use of special powers. I won’t attempt to reconstruct the argument with regard to the interpretation of the German constitution and will confine myself to discussing the more general aspects. Schmitt appears to regard the president of  a republic as necessarily lacking the sovereignty of a king (presumably of the type preceding notions of the sovereignty of representative assemblies, though elsewhere, Nomos of the Earth from the 1950s I believe, Schmitt does suggest that in Medieval/Early modern thought laws passed by an assembly have more weight than those that are edicts of the king).

Anyway, here Schmitt assumes that the king in strongest sense has a kind of sovereignty which covers the creation of law. A properly formulated republican constitution will have provisions for an emergency situation where parts of the constitution are suspended, but will not allow the destruction of the constitution. Schmitt’s classic case for the latter outcome is the seizure of power by Louis Napoleon Bonaparte, who became President of France under the 1848 constitution, and succeeded in abolishing the republic so that he became Emperor Napoleon III.

In general Schmitt seems to be a great believer in preservation, even if his ideas about preserving the Weimar Republic allow a big movement towards commissary dictatorship. The sovereign individual is a feature of the traditional monarchical system (not sure how well this fits with Schmitt’s emphasis on respect for law and custom within a monarchy, if the monarch can easily command it out of existence). Otherwise the idea of a sovereign individual is a monstrosity.

The head of state in a republic, or the head of government acting in the name of the head of state, can and should preserve the republican regime, through exceptional measures. The moment of implementing exceptional measures is a revealing moment, because it reveals where sovereignty lies, similar to the suggestion in Political Theology that the sovereign is the one who decides on the state of exception. In the context of a (presumably democratic) republic, that appears to mean the head of state in association with anyone else who may have some major say in the highest matters of state, the president alone, the president with prime minister and cabinet minister, or the president with cabinet.

Making a regime work in a way consistent with the basic principles of its constitution appears to be a very high political good, maybe the highest. However, the exceptional measures are just that, ‘measures’ rather than ‘laws’. Measures are tied in Schmitt’s argument to government commands tied to a factual situation, while laws are universal in application and not just introduced for special circumstances. The idea of measures becoming law is a negative one in other texts in Schmitt, and for him it is part of the problem of liberalism, which is not careful with the distinction and creates an administrative state that undermines liberty, something that in Schmitt’s thinking is very tied to deep customary principles and historically embedded orders with society that develop independently of political will.

Next and last post in this series will be general comments on Schmitt

 

(The above refers to:

Carl Schmitt

Dictatorship

From the origin of the modern concept of sovereignty to proletarian class struggle

Translated by Michael Holzel and Graham Ward

Cambridge: Polity Press, 2014)

Carl Schmitt on Dictatorship. Reading the First English translation XI

Chapter 5

The Custom of People’s Commissars During the French Revolution

and

Chapter 6

Dictatorship in Contemporary Law and Order: The Stare of Siege

 

After going rather slowly through earlier chapters and engaging in a good deal of digression and repetition of a kind I thought necessary to really communicate the historical pattern and assumptions about history that inform Schmitt, I’m going to get through the last two chapters at a comparative gallop. The Appendix will be considered in the next post.

In chapter 5 Schmitt is concerned with the French Revolution, as indeed the title suggests, with most emphasis on measures taken round the attempts flight of the royal family from France, which is a convenient point to concentrate on with regard to the progress of the French Revolution to an urge for a constitutional monarchy working with an elected law making body, resting on a good deal of violent social tension to a period of concerted state violence against enemies real and imagined, which has become the model of anti-constitutional authoritarianism, itself followed by attempts at restraining revolution culminating with the personal rule of Napoleon Bonaparte as First Consul and the Emperor. Schmitt moves about through this history to emphasise the ways in which commissary dictatorship reaches some kind of extreme limit during the ‘Terror’ of the Committee for Public Safety, and the ways in which the kinds of exceptional powers used by the Committee become part of the ways in which a more conservative state creates and maintains order under its own authority.

Chapter 6 really expands that shifting about through the history of Revolutionary and Bonapartist France into a shifting about through history since the late eighteenth taking on developments mostly in France, Britain and the United States,  and some reference to the German kingdom of  Prussia. Though the subtitle of Schmitt’s book refers to proletarian class struggle, the discussion of Marxism and Bolshevism is very brief. As a whole these two chapters lack some of the readability of the earlier chapters, which engage with a great overarching moment of European history from the thirteenth to eighteenth centuries.

The last two chapters feel more scrappy, incoherent and unsatisfying in comparison. Whatever happened to a full account of Marxist Proletarian Dictatorship and Lenin’s implementation of it in Russia? My belief is that this suits Schmitt’s enterprise, which is to suggest some kind of European (including America) decline from the time of Enlightenment liberalism, though with earlier roots. If there is no compelling account of Proletarian Socialist Dictatorship as an endpoint of European history, that is because the whole idea fails to provide any resolution to European history, negative or positive.

The Marist idea of a history ending dictatorship in which the evil of politics and state power consumes itself in a final apocalypse burning the remnants of class society away, is for Schmitt just another move of state power and political struggle, which repeats a Jacobin French Revolutionary move from commissary to constitutional dictatorship, which is never consummated. For Schmitt constitutional dictatorship means the rule of the nation or people that overrides the limits of law and constitutionalism. As Schmitt explains in chapter four though, the instrument of constitutional dictatorship never gives up the the idea that it is answerable to the National Convention and the laws passed by that convention, even if it is engaged in an apocalyptic project of destroying the enemies of virtue and reason, and any concrete phenomenon which impedes the purity of reason and virtue.

The constitutional dictatorship is an inherently failed project, a limit that can never be reached. I do not remember Schmitt saying this anywhere in the text, but I suggest it is the necessary outcome of reading and interpreting the text, in just a modest sense of interpretation concerned with finding internal consistency. The Bolshevik and Jacobin goals of constitutional dictatorship are only achieved in comparatively petty acts of dictatorship, which can be found within conservative and liberal order, even if not as intensely as in Jacobin and Bolshevik dictatorship. In practice, the goal of constitutional dictatorship tends to lead to methods of dictatorship in conservative and liberal states through ideas of martial law, state of emergency, and state of siege. These are reactions to and imitations of Jacobin and Bolshevik dictatorship.

The limited acts of dictatorship carried out by liberal and conservative regimes may themselves be repugnant to the Jacobin type constitutional dictators, since the idea of limited powers for state officials to ignore laws and constitutional provisions, just do not allow enough power, and tend to be directed against the kind of unruly popular acts that Jacobins thought they could use and direct towards their more grand ends. Schmitt gives examples of various kinds of how constitutional regimes, more conservative and more liberal, find it necessary to allow for exceptional powers. Schmitt thinks the model for this is martial law, which in giving military authorities special powers to deal with situations of violence, to some degree separates the working of civil political power from dictatorship, though also brings out something necessary to the stability and continuity of constitutional order.

Special powers for the military define certain situations as states of war, implicitly or explicitly, and provide a pretext for suspending the power of the courts, in the same that courts are nor used to punish soldiers for ‘murder’ in relation to killing in  a battle while in uniform and under military command. Schmitt’s account creates layers of approbation and rejection for exceptional state powers, in which they are seen as the product of a break down of traditional forms of pre-liberal order, but then necessary to protect the order that does exist, and a rejection of ‘constitutional dictatorship’, which nevertheless accepts the need for a concrete sovereignty able to destroy its enemies as part of there being order.

 

Next post, the Appendix ‘The Dictatorship of the President of the Reich according to Article 48 of the Weimar Constitution’.

After finishing the Appendix, I will post some overall thoughts on the book.

 

(The above refers to:

Carl Schmitt

Dictatorship

From the origin of the modern concept of sovereignty to proletarian class struggle

Translated by Michael Holzel and Graham Ward

Cambridge: Polity Press, 2014)

Carl Schmitt on Dictatorship. Reading the First English translation X.2

Chapter 4

The Concept of Sovereign Dictatorship

Second part of my account. Less historical digression and repetition of previous key points than the last post.

Schmitt’s account of the rule of Oliver Cromwell in seventeenth century England (and other nations in the relevant state system) suggests a drift from a commissary dictatorship rooted in the ancient Roman understanding of  dictator as serving the sovereignty power to accomplish limited and defined tasks on behalf of that power, towards a sovereign dictatorship that represents the dark side of bourgeois Enlightenment liberalism, or what is wrong with liberalism from Schmitt’s traditionalist conservative point of view.

The emergence of sovereign dictatorship comes out of a tension Schmitt outlines between laws and the norms that justify both obedience and enforcement with regard to laws. This is clearly an issue for all political systems, which as Schmitt recognises (if not entirely explicitly) was first made really clear by Rousseau in The Social Contract. Schmitt seems both to credit Rousseau with making the problems with the justification of law clear and to regard him as opening the way for sovereign  dictatorship. However, Schmitt does not descend to some of the more ridiculous polemics in which Rousseau is held to be directly responsibly for the Jacobin Terror in the French Revolution and all the varieties of modern totalitarian politics.

Sovereign dictatorship fort Schmitt comes from a power that is the power of what constitutes law and just the power of the constituted laws themselves. The sovereignty of a power that is constituting of laws is the power to override laws and make laws, without regard to the constraints followed by constituted powers within laws. The Jacobins of the French Revolution draw on Sieyès (as in the author of What is the Third Estate?) and Rousseau’s Social Contract  in their efforts to make law and virtue coincide, to make the general will (Rousseau) and the third estate-the nation (Sieyès) truly sovereign.

Since the people are often lacking in sufficient virtue, special measures should be taken. Tis seems to me more easy to justify with reference to Montesquieu’s account of republic than with reference to Sieyès or Rousseau, and indeed the most famous Jacobin advocate of terror after Maximilien de Robespierre, Louis-Antoine de Saint-Just, did exactly that. Of course Montesquieu probably did not mean to justify a later reign of terror, initiated by the Committee for Public Safety, when he discussed the Ancient Roman tendency to rely on the accusations of citizens, because citizens were naturally virtuous, but he did argue that a properly constituted republic would rely on state trust in accusations. This is possibly a bit awkward for Schmitt’s presentation of Montesquieu as a classic advocate of traditionalist monarchy, but is not in itself fatal.

Anyway, behind the thoughts of the Jacobins about terror and virtue is the continuing development of the constituting power as what shows itself in sovereign dictatorship. Schmitt notes ways in which the Committee for Public Safety in France still remained in some degree within the limit the limits of commissary dictatorship. The Committee regarded itself as defending the sovereignty of the National Convention, not as usurping that sovereignty, and it was not the only committee answerable to the Convention and that had special powers.

However, the National Convention always unanimously supported the decisions of the Committee for Public Safety, at least until the Coup of Thermidor (Thermidor was a month in the revolutionary calendar, that is the new calendar the French republicans though appropriate to the new age of justice and reason), so during that time the Committee was in practice exercising sovereignty and even adopting that kind of super-soveriegnty identified by Schmitt as sovereign dictatorship in which the power of constituting laws overwhelms laws themselves.

The non-recognition of the de facto sovereignty of  the Committee by those involved and the very temporary nature of the situation nevertheless means it was not a full sovereign dictatorship, and can be said to remain with the limits of commissary dictatorship. Schmitt’s account while careful about labels and definitions is aimed to give a negative impression of the ways that Protestant thought and Enlightenment liberalism challenge the layers of of custom, laws, sovereignty, religion, and institutions, accumulated in traditionalist Catholic monarchical Europe.

The heterodox elements of early modern Catholicism, particularly Occasionalism (the philosophical position according to which God arranges the consistency of mental perceptions with the general structure of the universe, which lack a natural physical connection) are also at fault in Schmitt’s thinking. Political Theology is also relevant here. There is an ambiguity in Schmitt’s thinking, which I’ve already alluded, in which he both welcomes the greater clarity about the gap between laws as what is constituted and the power to constitute them. His own account suggests that Medieval Catholic thinking was lacking in that it reduced political power and administrative acts to judicial power. The liberalism taken as the enemy is what makes clearer what sovereignty is and what state power is. Indeed the idea of a political enemy, important to Schmitt’s thinking (particularly The Concept of the Political and its much later sequel Theory of the Partisan) itself becomes clearer in the French Revolution and the attitude of the Committee for Publşc Safety with regard to defending the rule of reason.

(The above refers to:

Carl Schmitt

Dictatorship

From the origin of the modern concept of sovereignty to proletarian class struggle

Translated by Michael Holzel and Graham Ward

Cambridge: Polity Press, 2014)

Carl Schmitt on Dictatorship. Reading the First English translation X.1

Chapter 4

The Concept of Sovereign Dictatorship

First part of my account, quite a lot of historical exposition and digression as in previous posts, and re-explanation of what I think needs to be remembered here.

This chapter is much more concerned with history than with political theory, in comparison with the previous chapter. The major reference in history of political thought, or something close, is Emmanuel Sièyes, author of What is the Third Estate?, which is not very well known to English readers, but can be found easily online, as here. It is something between a pamphlet and a book, advocating that the third estate should be taken as the nation, written shortly before the French Revolution, which indeed played a major role in a historical process that achieved Sièye’s desired outcome. For those completely ıunfamiliar with the language of early modern and medieval political representation, I should something about what ‘third estate’ means (though I have already addressed the issue in posts on Dictatorship).

The assemblies called, with varying degrees of willingness by medieval monarchs, recognised three essential parts of the population of the domains of that monarchy: aristocracy, church, commoners. Commoners meant the town merchants and the gentry, that is those from propertied landed families below the ranks of the aristocracy, but who dominated local communities. There was no interest in the origin of the estates in representing the peasants and urban workers beyond the sense in which they might feel represented by the presence of the people they recognised as leaders in society in these assemblies. The estates in England were known as the parliament, and evolved bit by bit into the UK Parliament as we know it.

At the same time as Parliament was strengthening its powers in England (the early modern period) and power was being exercised  by the ‘third estate’, House of Commons, continental monarchies were tending to avoid calling the estates and were certainly not tacitly handing over some share in power to the third estate, even if composed exclusively of those one might think had a natural stake in maintaining the social order of things, or something very close to it.

 

It is worth going over this bit of historical sketching again, because Schmitt concentrates on England and France in this chapter. Naming the English/British state of the time is lightly awkward, because Schmitt is discussing the time of Cromwell, which precedes the union of Scotland and England under one parliament, as well as under one monarch, so parliament was only for England (taken to include Wales) and constitutional arrangements in England were not the same as in Scotland. For this reason  I shall stick to talking about England, despite the apparent dismissal of Scotland and forgetting of Wales, because that was how it worked then, roughly speaking.

Ireland just presents another complex case, which I cannot get into here, though the  period Schmitt refers to is the period in which all Ireland was finally completely incorporated into a British state system dominated by England (a rather slow process that began in the twelfth century, when England itself might be regarded as an appendage of a Norman-Angevin empire in western France, and in another oddity of history, though the 1169 first intervention in Ireland is usually described as Norman, the King of that time, Henry II, is known as the first post-Norman king, as a Plantagenet, and sometimes as an Angevin).

The point I am working up to here is that Schmitt discusses Oliver Cromwell as an important figure in the emergence of the modern version of dictatorship. As mentioned in previous posts, Schmitt regards Cromwell as a commissary (servant of a sovereign body) rather than sovereign dictator, because of the ending of the system with his death. This is a rather ambiguous situation because Cromwell did appoint a successor, his son Richard, to serve as Lord Protector after his death. However, he did not accept the title of king, or the guarantee of dynastic succession associated with such a title. At least in Schmitt’s presentation, Richard Cromwell appears to be a contingent successor rather than a necessary dynastic successor. The sense of contingency is enhanced by the speed and ease with which Richard abandoned the office and powers of Lord Protector, when it became clear that his father’s system was crumbling. He was allowed to live out his days unmolested as a member of the gentry in eastern England.

Schmitt gives some sense of the difficulties of Cromwell’s rule in that Cromwell only became Lord Protector, because rule by Parliament in the Commonwealth period of 1649-1653 did not work very well, and the obvious solution was for Cromwell to come out of the shadows as the de factor power in the land arising out of his control of the military after leading parliamentary armies to victory, to become Lord Protector. Cromwell made a number of attempts to rule through parliaments constituted to his liking, their failure, the inevitable reversion of powers to Cromwell, and the periods of unchallenged rule without parliament show that Cromwell was sovereign. Despite his frustrated wish to find a parliament he could work with, his sovereignty came in his own mind from God, as Cromwell justified and explained his actions with regard to what he thought would please God (as far as I can see an entirely sincere claim, Cromwell was what we would now call a ‘born again Christian’, and the ‘born again’ process was deep and intense).

Schmitt is quite restrained in his account here, and even seems sympathetic with Cromwell the conscientious individual, but he makes it clear that Cromwell was a Puritan Christian and clearly expects his readers to make a connection between the subjectivity of Protestant Christianity compared with Catholicism. He is building a picture of the development of modern sovereign dictatorship from the decay of the Catholic world of laws and governments ordered by enduring hierarchies, customs and laws.

To be continued. Next post will get onto the French Revolution and the Committee of Public Safety as well as concluding the comments on Cromwell.

 

(The above refers to:

Carl Schmitt

Dictatorship

From the origin of the modern concept of sovereignty to proletarian class struggle

Translated by Michael Holzel and Graham Ward

Cambridge: Polity Press, 2014)

Carl Schmitt on Dictatorship. Reading the First English translation IX

Chapter 3

The Transition to Sovereign Dictatorship in Eighteenth-Century State Theory

(continued)

Before I get onto Rousseau, I need to add a bit more about Montesquieu. Schmitt explicitly describes Montesquieu as anti-Enlightenment, which for most people is stretching the possible reasonable labels for Montesquieu. He contributed to the central text of the French Enlightenment, The EncyclopaediaThe Spirit of the Laws was placed on the Index of prohibited books by the Catholic Church, in that book he complains of the influence of the church in the most Catholic countries, denounces torture and murder suggesting that they re against humanity, he praises the spirit of commerce, he praises liberty and statute law (i.e. he believes  that customary law, law inherited from the past cannot be absolute), he tried to put the study of history and society on a   more regular and objective basis, and took other positions generally accepted as part of Enlightenment.

Schmitt appears to be employing Enlightenment to refer to the most radical, materialistic, democratic, and individualistic aspects of Enlightenment. He also seems to put the Physiocrat (early economist) Turgot (Anne-Robert-Jacques Turgot, Baron de Laune) on the anti-Enlightenment side, by emphasising that like Montesquieu he worked as a servant of the monarchy (Montesquieu was a judge and Turgot was an ‘intendant’, that is a state bureaucrat), and shared a commitment to monarchy, which in the case of Turgot seems to have slipped over into support for absolute monarchy.

What Schmitt also suggests in his analysis of Montesquieu is that Montesquieu had a belief in the universality of law and in exceptions necessary to preserve the system, so the suggestion is that Montesquieu grasped that the law must be contradictory in some way, and that it needs a concrete reality in which it is unified with the king. The suggestion is that both Montesquieu’s understanding of law as in some degree autonomous of sovereign will, though not completely, and Turgot’s understanding of a ‘natural’ laissez faire economy as dependent on laws and the force provided for  laws by the sovereign  will, are part of a unity of laws and sovereign will within the monarchy. There is an implicit argument that Bonald style monarchist traditionalism s best understood with reference to the  constraints on sovereign will resulting from robust laws and legal institutions, and leaving the economy to the interplay of private decisions.

The contrast Schmitt develops, through a lot of other references and sub-arguments is between Montesquieu and Rousseau in a strategy that maximises their differences and situates Rousseau as the most consistent of liberals and the revealer of its inner logic. Locke is also mentioned, but as a less ‘pure’ liberal more aware of the necessity for some kind of sovereign power in the foundation of his thought than Rousseau is. Locke is given credit for appreciating the need for stability in law, distinct from the wishes of the sovereign at any moment and for a ‘federative power’ (which in Locke refers to sovereignty in relation to inter-state relations including war).

For Rousseau, the sovereign is the general will, that is the unanimous agreement of all individuals with regard to any law that can be regarded as legitimate. This takes Rousseau in a more radical individualistic direction than Locke, who allows that a representative assembly is the sovereign with regard to the making of laws, so clearly does not require the consensus of every single individual (with full political rights) in the territory of the state concerned to agree. Schmitt sees Locke’s thought as flawed by an excessive reliance on the sovereignty of the law making assembly, rather than the kind of concrete individualised sovereign will Locke relegates to the ‘federative power’, and as drawing on a Protestant related metaphysics of the substantial individual that also limits Hobbes’s thought. Schmitt refers to contradictions between Locke’s metaphysics and his politics, which is I suppose about the well known apparent tension between Locke’s sensationalist empiricist views of the mind and knowledge, and the  idea of natural rights as the foundation of political institutions.

Presumably Rousseau’s upbringing in Calvinist Geneva and later adherence to a  version of religion which rests on inner experience, combined with metaphysical views that seem to waver between deism and the providentialism of a not very interventionist deity. For Schmitt the vital foundations of Rousseau’s political thinking are a belief in complete consent of laws in the general will and the natural goodness of man. On the latter point, it seems to me that Rousseau is a bit more ambiguous than Schmitt suggests, but there is enough truth in it to not disturb the analysis very much.

The problem for Rousseau, according to Schmitt, is that laws come into conflict with with a lack of natural goodness of individuals in society. That is the background to Rousseau’s famous declaration than man must be forced to be free and in the end the historical process in which the Jacobins used the terror of the Committee for Public Safety during the French Revolution. This rather stereotypical picture of Rousseau’s thought and its influence, does not quite do justice to Schmitt’s account which is a lot more nuanced, makes more distinction between texts and political acts in their name,  and is a lot more aware of Rousseau’s use of paradoxes, than the summary just given. Nevertheless, Schmitt does not really dissent from the stereotype of Rousseau, he is just a lot less polemical and reductive than a lot of thinkers who should know better (Isaiah Berlin is the prime defendant in the dock here).

It seems to me Schmitt’s account is slightly failing to take account of the equivocations and qualifications in Rousseau, but given that he is producing a general argument about the evolution of ideas about sovereignty and law it is largely a satisfactory account. In the context of this book, Schmitt’s concern is to fit Rousseau into arguments about dictatorship. He notes that Rousseau prefers the rule of magistrates to dictators, while it is Montesquieu who refers to the necessity of some form of commissary style dictatorship with regard to republics, giving the example for modern republics of the the special courts of Venice. Schmitt’s view of Rousseau’s place in the  emergence of sovereign dictatorship, is that as for liberals as a whole, Rousseau establishes the idea of sovereign dictatorship by treating laws as something can be created and imposed on the basis of pure virtue as long as it rests on the unanimous consent of the general will. In practice this will lead to dictatorial acts against those who lack virtue and places liberal government on the foundation of a dictatorial power over society to impose laws, as opposed to the restraint of traditional monarchy acting through intermediate powers.

(The above refers to:

Carl Schmitt

Dictatorship

From the origin of the modern concept of sovereignty to proletarian class struggle

Translated by Michael Holzel and Graham Ward

Cambridge: Polity Press, 2014)

Carl Schmitt on Dictatorship. Reading the First English translation VIII

Chapter 3

The Transition to Sovereign Dictatorship in Eighteenth-Century State Theory

(continued)

As stated in the last post, this chapter largely revolves around a tension between Rousseau and Montesquieu. To out things simply, Schmitt is for Montesquieu and against Rousseau. This depends on taking Montesquieu as a monarchist traditionalist, which still leaves Schmitt in proximity to the liberal tradition he largely criticises. There is some debate amongst commentators on whether Montesquieu is more republican or monarchist, more ‘English’ (disguised republic) or more ‘French’ (limited monarchy).

I’ll resist the temptation to add my own thoughts on Montesquieu. I’ve read a lot of him recently, I taught the whole of The Spirit of the Laws last autumn and will again in the coming spring, so if I start I’ll go on for ever, and I’ll certainly have a lot to say about him in posts in the future (not the very near future, I will be positing on philosophy of the novel, once I’ve completed the current sequence on Schmitt). For the moment, I’ll restrict myself to saying that Montesquieu incorporates a very varied numerous number of historical instances and possible forms of government, in a way that to me makes it difficult to say what he is advocating most strongly, except to say that he wishes to see ‘moderate’ government (that is governments limited by law and custom, comprising monarchies and republics, which can be democratic or aristocratic) triumph over ‘despotic’ government (that is one person government limited only by religion).

What Schmitt emphasises is the what Montesquieu has to say about monarchy, which seems to largely apply to the France of his time, and is at least in some degree a justification of that government as one that does accept limits. Schmitt’s tendency to take Montesquieu as advocating the division of powers within and underneath the French monarchy as the supreme political model is not at all outrageous. It is certainly how some very good Montesquieu scholars read him, though there are good scholars who also read him in a  more republican way, and of course among the more popular public understandings of Montesquieu, there is a strong tendency to see him as prophet and justifier before the fact of the constitution of the United States.

Just thinking about Schmitt’s perspective, the possibly awkward aspect of his use of Montesquieu is that Montesquieu is standardly read as a liberal thinker, even if often as a conservative liberal, and takes up more of Schmitt’s discussion than unambiguous traditionalist conservatives like Bonald who seem closer to Montesquieu’s way of thinking. In addition, Montesquieu takes Spain as an example of the negative effects of giving too much power to the Catholic church and in general of the defects of the most traditionalist forms of society as opposed to the influence Enlightenment had in France even on the monarchy and the aristocracy.

Of course it would be wrong to say these things were not present in Spain and only present Spain from the point of view of the black legend of fanatical inquisitors and cruel exploiters of American natives, but we have to acknowledge that Montesquieu tended to go along with such views and that Schmitt generally takes the Spanish Catholic-Monarchist system as a positive point of reference. Along with Bonald and Joseph de Maistre, Schmitt sometimes uses the fervent nineteenth century Spanish monarchist Juan Dosono Cortés, as a favourite example of a conservative traditionalist thinker defending ordered authority and custom against anarchism and socialism.

For whatever reason, Schmitt prefers to take a thinker generally association with Enlightenment liberalism of some kind as he central figure in explaining the benefits of monarchist authority over liberal individualism, in an argument to show traditional authority as better for individual rights than liberalism. The points that Schmitt is emphasising form Montesquieu’s Spirit of the Laws, is that a monarchy is not a despotism, that it shares powers with intermediate institutions, that is institutions mediating between monarch and individuals. The aristocracy, church law courts, and town governments where they possess some status guaranteed by custom and law independent of the will of the monarch are the obvious major elements. Montesquieu himself of course was a judge and an aristocrat so there might be an element of self-justification şn his argument, though he is far too complex a figure to reduce to an agenda of self-justifying gestures. Schmitt emphasises the aristocratic element, the idea of an aristocratic state, which seems a reasonable account of Montesquieu since he is expecting the aristocracy to provide judges and senior clergy, and for town government to be dominated by aristocrats, or at least those connected with the aristocracy.

(Next week Rousseau and the comparison of Rousseau with Montesquieu)

 

(The above refers to:

Carl Schmitt

Dictatorship

From the origin of the modern concept of sovereignty to proletarian class struggle

Translated by Michael Holzel and Graham Ward

Cambridge: Polity Press, 2014)

Carl Schmitt on Dictatorship. Reading the First English translation VII

Chapter 3

The Transition to Sovereign Dictatorship  in Eighteenth-Century State Theory

There is a different kind of historical background background in this chapter from previous chapters, that is the argument is less tied up with particular events, persons, and institutions. Schmitt is focused on the major legal and political institutions of one country France, and a clear  contrast in political and legal thought between two widely read thinkers of Great Classic status. The contrast is between Montesquieu and Rousseau and the clarity is a bit obscured by discussion of less well known figures, particularly the Swiss-French Gabriel Bonnot de Mably, who is very little known in the anglophone world and is only a little better known in France as far as I can see.  I don’t think my taking time to find out more about Mably will greatly help comprehension of Schmitt’s overall argument, so I will leave that to one side.

The main context Schmitt brings in is a well known story about eighteenth century France, and which is familiar to anyone with any idea about eighteenth century European history, since this was certainly one of the times in which France could claim to be first in the ranking of continental European powers, though falling behind Britain as a commercial and colonial power. The story is one of the increasingly absolutist monarchy, though Schmitt avoids the most misguided vulgarised conceptions on this score, and it is fundamental to his whole argument that he does.

It is, I suppose uncontroversial to say that this is a time when the political supremacy of the monarchy with regard to any other power source, the increasing  administrative power of the state, and the erosion of localised privileges, customs, and exceptions were all realities. However, as Schmitt points out, this was in no way a time of an at will personal despotism over every aspect of French society. On the issue of the ‘commissar’ (the underlying issue of special powers for centrally appointed commissars as ‘commissary dictatorship’ as an instrument of sovereign power), these existed at that time as ‘intendants’, who had powers delegated from the monarchy with regard to collection of taxes, and other administrative functions.

They were not, however, part of a sovereign dictatorship, since the king shared power with local ‘parliaments’. Unfortunately the translators err on this issue, or so I believe. They write it as ‘parliament’, which has some historical and linguistic justification (there was a time when ‘parlement’ was standardly translated as ‘parliament’ now means an elected parliamentary body), but tends to confuse the unwary. The ‘parliaments’ of medieval and early modern France were not representative bodies in the sense of the English and then British Parliament. Members were not voted into office, they were regional and city judges, providing the highest instance of justice within that jurisdiction, and registered royal edicts, which was necessary for them to be recognised as laws.

The more extreme and vulgar images of eighteenth century absolutism suggest a virtual elimination of these institutions, but though their power relative to the power of the monarchy declined over all, that is a not a completely straight line of decline, and they continued to exist and continued to have a role in representing localised elite views until the French Revolution. As they were inevitably composed of the aristocracy, most famously Michel de Montaigne in the sixteenth century and Charles-Louis de Secondat, Baron of La Brède, and Montesquieu in the eighteenth century, they were a kind of local assembly of the aristocracy. Their mix of formal judicial powers and less formal political powers confirms Schmitt’s analysis earlier in the book of the medieval attitude in which all political power is understood as a form of legal power, and the growth of the centralised state was tied up wit the revival of Roman law and the use of judges in state and administrative tasks. In the case of eighteenth century France, we can see that the power-law fusion was also a way of limiting central power.

The essence of the French monarchy was that the power was divided between monarchy and the estates for Schmitt and he quotes the ultra-monarchist Louis Gabriel Ambroise de Bonald, someone else little known outside France, and only a bit better known in France, but nevertheless one of those writers Schmitt appears to see as a precursor. Schmitt’s point in bringing up Bonald is very much to suggest that conservative-tradionalist-monarchist thinking is about a division in powers, not a defence of dictatorship-despotism-tyranny. He seems to be arguing for what Germans know as a state of estates, though the real division in Schmitt is not between monarchy and distinct estates, but between monarchy and that hereditary class (though also open to those who impressed the monarchy with their administrative skills of financial capacity to offer bribes) dominant in the interpretation of law and the giving out of justice.

 

(Commentary on Chapter 3 to be continued soon)

 

(The above refers to:

Carl Schmitt

Dictatorship

From the origin of the modern concept of sovereignty to proletarian class struggle

Translated by Michael Holzel and Graham Ward

Cambridge: Polity Press, 2014)

Carl Schmitt on Dictatorship. Reading the First English translation Vib

Second Part of Third Post, on Chapter Two

The Practice of Royal Commissars until the Eighteenth Century 

The chapter is divided into two sections, Ecclesiastic and Royal Commissars and Excursus on Wallenstein as Dictator, at this point I am dealing with the second section only.

There is a Catholic versus Protestant aspect to Schmitt’s view of sovereignty and justice as a concrete unity versus liberal formalism and individualism. Schmitt’s comments on Samuel von Pufendorf,  have to be seen in the religious context that Pufendorf was Protestant. In his general view of early modern legal and political thought, Schmitt presents Protestant thinkers like Grotius (The Nomos of the Earth) who was a major Protestant theology,an as well as a political thinker, Pufendorf (The Nomos of the Earth), and Hobbes (The Leviathan in the State Theory of Thomas Hobbes) who was perhaps just not very Christian but in a way shaped by English Protestantism, as splitting a presumed Catholic unity of formal sovereignty and concrete sovereignty, even where Schmitt appears to be in accordance with their leanings towards absolutist doctrine of state sovereignty.

There is a lot of misunderstanding around about this anyway. Schmitt’s attitude to Hobbes and Pufendorf is not premised on thinking they went some of the way, but not far enough in demanding unrestrained arbitrary sovereignty for the state, which is one presumption around, but a belief that they had an inhuman and immoral belief that formal sovereignty, the right to sovereign power, could be detached from the human and moral purposes of sovereignty. One may of may not find Schmitt’s theories of sovereignty an adequate basis for individual rights and restrained government, and I have doubts myself, but one should not mistake the exact nature of his argument, or his reasons for criticising the liberalism he thinks is the outcome of Protestant subjectivity and legal formalism.

Schmitt brings in Oliver Cromwell and Maurice of Orange-Nassau as examples of military commanders accused of dictatorship in the seventeenth century. He does this very briefly and I’m adding some relevant detail to explain the point of doing so. The comparison is odd in that these figures did exercise something like sovereign dictatorship. Maurce, hero of the Dutch Revolt against Spanish rule and a distinguished general of the time, did take power from the more republican-representative aspects of the Dutch Republic, in a coup against Johan van Oldenbarneveldt, himself a distinguished figure in the Dutch Revolt and early modern republicanism. It is significant here that Maurice’s coup was patly based on tension between the most radical Protestants, that is Calvinists, and relative moderates that is Arminians. The House of Orange, which provided a kind of hereditary military command, or semi-monarhcy for the Dutch Republic supported the Calvinists and the republicans/civil merchant class politicians tended to be linked with Arminianism.

Maurice’s coup was temporary in that on his death, the previous system in which merchant class representatives gave political leadership re-emerged, and in that respect Maurice belongs to the class of ‘commissary dictators’ rather than ‘sovereign dictators’, because his dictatorship was only temporary even if lasting for the whole of his own life. Oliver Cromwell was a roughly parallel figure, commanded the parliamentary army in the English Civil Wars/Wars of the Three Kingdoms, and like Maurice was one of the great commanders of his time. He was also linked with the more radical Protestants, the Puritans, against the rising Arminian influence of the reign of Charles I. In the case of England, the Puritans were the ones linked with parliamentary power. However, the period of strongest parliamentary power after the overthrow of Charles I, the Commonwealth period, was not a great success and Cromwell as the real strongman of the state became Lord Protector for life.

The title passed to his son, but Richard Cromwell had little aptitude for dictatorial rule, or political power of any kind, and was easily pushed aside so that Charles II could be crowned. Again in Schmitt’s terms, Cromwell was a commissary rather than sovereign dictator, if only just. So Schmitt is making the point that there is no sovereign dictatorship in the seventeenth century. He is also suggesting that it is in Protestant countries that the shift towards constitutional dictatorship is taking place, as commissary dictatorship is stretched to its extreme limits, by figures who like the great historic model of absolute personal sovereignty, Julius Caesar evidently hoped to institute a permanent system.

A small but necessary criticism of the translation is that Maurice of Orange-Nassau (also known in English as Maurice of Orange or Maurice of Nassau) is referred to as Moriz von Orange, which is very strange. An internet search suggests that the translation is the only instance of the use of this way of referring to Maurice. In German he is Moritz von Oranien and he in Dutch he is Maurits van Nassau. This switching between Orange, Nassau and Orange-Nassau is rather strange and I can’t find an explanation. Maurice belonged to the House of Orange-Nassau but for other princes, only Orange is used, why there is so much play with the two titles in his case is mysterious to me.

(The above refers to:

Carl Schmitt

Dictatorship

From the origin of the modern concept of sovereignty to proletarian class struggle 

Translated by Michael Holzel and Graham Ward

Cambridge: Polity Press, 2014)