Why does law bind the sovereign, if the sovereign is the source of the political authority for law? And if law does not bind the sovereign, how is it possible to operate in normal times when a fresh decision by the sovereign is not necessary (or possible) in every instance of the law's application? The answer is to reserve to the sovereign the decision of when to suspend the normal operation of law; indeed, this can be the only answer that is consistent with both the concept of sovereignty and the existential basis of law.
Liberalism attempts to cabin such situations by specifying in advance the conditions for declaring a state of exception (for example, the provision in the U.S. Constitution for the suspension of habeas corpus) and the method of resolving the crisis. Kelsen, as we have seen, solves this problem by eliminating sovereignty altogether as a kind of epiphenomenon of law, a concept that has no independent existence outside law, a mere personification of the legal order. Schmitt, however, sees that the death of an external sovereign, like the death of God, does not lead to the triumph of science—even legal science—but to the war of gods, the conflict of interest groups each animated by its own myth. As a description of Weimar Germany, one would have to say that Schmitt's account, not Kelsen's, was closer to reality.
It must be emphasized that Schmitt is not antidemocratic. On the contrary, he holds that only an appeal to popular sovereignty can legitimate modern political authority. Like Kelsen, he is a partisan of the nation-state. He rejects claims of legitimacy based on tradition, but he also rejects the claims of parliamentarianism that base legitimacy on rationality, because rationality inevitably subverts authority and thus indirectly subverts democracy.
Recognizing politics' need for a myth, Schmitt wishes to replace the procedural myth of Kelsen with a myth of substantive content. In Schmitt's view, this means a vision on behalf of which persons will be willing to sacrifice their lives. Indeed he holds that one's life is worthless unless one has a purpose for which one is prepared to die. Liberalism can-not ask for such sacrifice from individuals because it exalts the ultimate worth of the individual life.
Schmitt relies on two concepts—the state of exception and the friend/ enemy distinction—to draw one fundamental conclusion: the critical need for a decision.52 The constitution of a State is the result of an act by the nation that determines the form in which its will is to be expressed: that act, whether it is the foundational act of creating the friend/enemy distinction or the amending act of the state of exception, is the crucial act of decision.
By contrast, for liberal parliamentarians invoking a state of exception meant a ceasing of the operation of law. If, as Kelsen held, law is equivalent to the norms contained in the positive law of a valid legal order, then the cessation of the operation of law also meant a collapse of the legal order. Gerhard Anschütz, Weimar's most distinguished constitutional lawyer, said of Article 48—the provision for emergency powers in the Weimar constitution—“[h]ere the law of the State stops short.” Schmitt found this a telling remark, the inadvertent but unavoidable consequence of liberalism's effort to remove politics from law. Such a moment of supreme political importance was to occur in a legal vacuum. On the contrary, Schmitt argued, all legal orders are founded on an existential decision, and not on a norm. As a result, even in the state of exception where the positive law recedes, the State—the legal order—remains.
Democracy, Schmitt writes, is defined as the mutual psychological identification of rulers with ruled. While the parliamentary democracies divide the public will through organized dissent, opposition parties, pressure groups organized around particular issues, a critical free press, minority protests, and even the secret ballot—which effectively prevents a union of wills in one public acclamation—the dictatorships provide an opportunity for the coming together of a people and a forum for the expression of their unity. The public will is not parceled out and diluted by elections, but rather focused in the way that only the will of a substantively homogeneous group can be.
Perhaps at one time the myth of parliamentarianism—the picture of independent representatives of the people engaged in a rational search for consensus on the best policy for the society—could obscure the reality of parliament as an auction house for bargaining among interest groups. But the rise of mass parties, highly effective interest groups, expensive political campaigns, a broad-based electoral franchise to whom advertising is as important as it is to a broad-based consumer population, and, above all, a free press to expose parliament as little more than the display case of speeches made on behalf of clients—these developments have exploded the myth of liberal parliamentarianism. In its place is the movement and its leader: a state defined by values evoked by a decision, and ratified by ecstatic mass acclamation.
The dictator is required to act not only in the constituitive moment but at all times. He gives voice to the sovereign people, the nation.
The norm does not exist which can be applied in chaos. The order has to be established, so that the legal order must have meaning. A normal situation has to be created and sovereign is he who definitively decides whether this normal state actually obtains. All law is “situation law.” The sovereign creates and guarantees the situation as a whole in its totality. He has the monopoly on this ultimate decision.53
All this was very congenial to the Nazi state. Even though this state was stratified into many different groups, it was not a pluralistic state, because it sought a total unity of order arising from the führer's decisions. Moreover, there was an enormous increase in discretion, even to the point of passing ex post facto laws applying new rules to legal situations that arose prior to the rules. This arbitrary discretion was rationalized by invoking the nation-state legitimacy conferred by the führer as the apotheosis of the popular will, or as Mussolini put it (speaking of himself): “Duce sei tutti noi!”54
In summary, “decisionism” did not merely exalt the role of the decision. Where Kelsen, beginning with the logical form of the legal proposition, looked behind each legal act for the norm validating it and attempted to show that the basis for establishing the legality of a decision stood prior even to the constituent authority, Schmitt saw each legal act as a decision. Like his opponents in the Frankfurt School, he saw law as indeterminate, requiring fresh decisions inevitably and ubiquitously. He therefore substituted a hierarchy of men for the hierarchy of norms, finding the basis for legal validity in the correspondence between law and the actual social and political situation.
THE FRANKFURT SCHOOL AND OTTO KIRCHHEIMER
Schmitt and the German fascists were impressed by what was happening in Rome in the 1920s, but other intellectuals looked to Moscow. The Versailles settlement was no less an anathema to these persons, and Weimar, which they too saw as the creature of Versailles, was no less contemptible. Indeed the ideological alternatives that made their capitals in London, Rome, and Moscow were precisely mirrored in Weimar political society and thus the constitutional turmoil of that society is an excellent subject for our study of the constitutional situation of the larger society of nation-states.
“The Frankfurt School” is the name given to the writers and their works that came out of the Institute for Social Research founded in 1924 and attached to the university of Frankfurt. Its members were driven from Germany by the Nazis; some emigrated to Paris, to New York (where they became attached to Columbia University), and to Los Angeles, and their most prominent leaders then astonishingly returned to Germany after World War II. The romantic aura that still surrounds the Frankfurt School arises perhaps from this saga of a persecuted community of intellectuals, hounded into exile, courageously defending their vision against a malignant, or in some cases benign but apathetic, bureaucratized world.
This saga began when Felix Weil, the son of a millionaire who had made a fortune in South America, set up a trust fund to found an institute for Marxism, hoping one day that it would be handed over to a triumphant German Marxist state. Under the Institute for Social Research's first director,
Carl Grunberg (1924 – 1928), the focus of research was largely Marxist orthodoxy. In addition to Weil's funds, the Institute sought financial support from the Prussian Ministry of Culture (Frankfurt was situated within the state of Prussia) and an affiliation with the University of Frankfurt. Despite the open breach between communists and democratic socialists, the Prussian state government, which was controlled by the Social Democratic Party (SPD), nevertheless supported the Institute and a university affiliation was procured.
The members of the Frankfurt School from 1923 to roughly 1950 were Marxist intellectuals of a specific sort.55 In his important collection of essays, published the year of the founding of the Institute, György Lukács wrote:
Orthodox Marxism… does not imply the uncritical acceptance of the results of Marx's investigations… It is not the “belief” in this or that thesis, nor the exegesis of a “sacred” book. On the contrary, orthodoxy refers exclusively to method. It is the scientific conviction that dialectical materialism is the road to truth and that its method can be developed, expanded and defended only along the lines laid down by its founders.56
In this sense, the members of the Frankfurt School were orthodox Marxist theoreticians, but their aim was to broaden the Marxist critique that hitherto treated philosophy, politics, and society as mere symptoms of the class economic struggle. Throughout their careers, the members of the School defined themselves in opposition to what they took to be empiricism and positivism. The verifiable theories of positivism would only confirm the surface phenomena of society; what was needed was critical insight to expose the façade that mesmerized the positivist.
By 1930 the focus had shifted to this project, the broadening of the Marxist critique, under a new director, Max Horkheimer. By supplementing the Marxist material and economic analysis with the cultural and psychological criticism of society the theorists of the Institute sought to account for the failure of the communist revolution despite the crises in capitalism of the First World War and the Great Depression. To explain the proletariat's failure to assume its historical role, Lukács had proposed the notion of class consciousness in the subjunctive mode, as it were.
Proletarian class consciousness is not the empirical consciousness of individuals or groups but rather what that consciousness of the proletariat would be if it could grasp its class interest and its historic role. The absence of proletarian class consciousness is blamed on the reification of consciousness.57
The central theme of the work of the Institute became the elucidation of the Marxist theory of alienation, based on the notion of reification—the idea that within capitalist societies, the relationships among human beings had taken on the form of the relations among things. This elucidation was embodied in a total cultural critique of the superstructure of society, encompassing art, music, psychology. It is sometimes said that the Frankfurt School, along with György Lukács, attempted a kind of Reformation of Marxist theology.
In addition to Horkheimer—an autocratic and tactically adept administrator—the other driving intellectual force was his close friend, Theodor Adorno, brilliant, immensely prolific, and a passionate critic of modern art and music (especially jazz) as well as of politics. Associated with these two, at various times, were Walter Benjamin, Erich Fromm, Herbert Marcuse, Franz Neumann, Friedrich Pollock, and Otto Kirchheimer. Although the Jewish background of each of these varied, some elements of traditional Judaic thought—a commitment to social justice; a utopian messianism and attachment to a vision of a world emancipated from the bondage of law; and a self-conscious affinity for ethical concerns—figure in virtually all the work of the School.58 Assimilated and yet marginalized in German society, saturated in high German culture and yet genuinely cosmopolitan, Marxist-Leninist in orientation and yet acutely aware that fascism was swelling with mass proletarian support, these writers provided a serious intellectual underpinning to Weimar revolutionary theory and brought this theory within the sheltering respectability of one of Germany's most prestigious universities. Their members were prominent targets for the Nazis, who closed the Institute in March 1933. Benjamin went to Paris, and probably committed suicide in 1940 after a failed attempt to emigrate. Neumann went to London.59 But most went to the United States.
In America, the school's most powerful members, Horkheimer and Adorno, were shrewd as well as committed; for the word Marxism they had invented the term critical theory; in place of capitalism they used the phrase forces of domination with such success that in 1934, Nicholas Murray Butler, the far-from-radical president of Columbia University, agreed to support the affiliation of the Institute with the University and to locate it in a Columbia building. Horkheimer and his colleagues were, Butler was told, “on the liberal-radical side.” Indeed they were: in 1939, Horkheimer wrote, “no one can ask the émigrés to hold a mirror up to the world that has produced fascism in the very place in which they are being offered asylum. But those who do not wish to speak of capitalism should be silent about fascism,” a piece of advice that we can be thankful was ignored by Franklin Roosevelt.
After the war, Horkheimer and Adorno returned to Germany. In the fall of 1951, the Institute for Social Research was reopened in Frankfurt, and in that year Horkheimer was also appointed rector of the University there. Adorno went back to Frankfurt in 1953 and was appointed to a chair in philosophy and sociology established as compensation for the expulsion of scholars by the Nazis. He never returned to the United States, and in 1955 he became a German citizen again.
Today the legacy of the early Frankfurt School is in evidence as much in the work of the American critical legal studies group as in the Institute's leading contemporary philosopher, Jürgen Habermas (who has recently been at pains to repudiate the critical legal studies movement).60 Whereas Habermas tends to emphasize Horkheimer and Adorno's arguments about individual autonomy in a conformist society, the ambivalent inheritance of the Enlightenment and its instrumental rationality, as well as the Americanization of German culture that has occurred since the first period of the Frankfurt School's work, the American critical theorists appear more attracted by the Frankfurt School's blending of psychoanalysis and sociological Marxism, which produces a “total social critique” that unmasks the law as a tool for capitalist and elite domination, and exposes, so we are told, the vast self-deception of liberal political society.
The Frankfurt School, however, did not attempt a Reformation with respect to the Marxist view of law; indeed, with the exception of Franz Neumann and Otto Kirchheimer the School showed little interest in questions of jurisprudence. For the members of the School, as for the communists of Weimar, law was a simple mask for domination, a by-product of the class struggle.61 This orthodox legal nihilism was largely accepted by otherwise reform-minded Marxists of the School.62 By unequivocally equating the formalistic, coercive character of the law with bourgeois class interests and bureaucratic authoritarian rule, the Frankfurt School was unprepared for the Nazis' abandonment of rigid legal protocols in favor of undefined, “soft” discretionary rules. Kirchheimer speaks best for this attitude, which may be said to present the third alternative approach to jurisprudence in the Weimar Republic, opposed to parliamentarianism and fascism.
In Kirchheimer's “The Socialist and Bolshevik Theory of the State” (1928), one reads a ferocious Marxist attack on Weimar parliamentary ideology that is nevertheless thoroughly redolent of Carl Schmitt's thought.63 Kirchheimer had been a student of Schmitt's; indeed “The Socialist and Bolshevik Theory of the State” was originally part of Kirchheimer's dissertation, written under Schmitt. The basic flaw with liberal democracy, Kirchheimer writes, is its refusal “to decide”; by compromising with its bourgeois political foes, the social democrats of the Weimar state blur the true nature of politics, which is class conflict. Weimar is unable to act ruthlessly, in pathetic contrast to the Bolshevik liquidation of class enemies in Russia. In Kirchheimer, Schmitt's friend/enemy distinction is applied to the conflict between working class and capitalist class.
The refusal to write this basic enmity into law reflects Weimar's greatest error. Lenin is lavishly praised for “a doctrine of unmitigated, all embracing struggle.” By contrast, Weimar is “a shell of a state… something less than itself” because it continues to tolerate, and even debate with, its enemies.
Kirchheimer emphasizes three other points: first, “[o]f fundamental importance for every political theory… is to what extent it takes account of, and admits into its texture the principle of emergency.”64
Soviet strategists understand the centrality of the emergency and, faced with internal and external threats, are ready to act ruthlessly against their enemies without qualms about establishing a dictatorial regime as a way of undertaking the crucial task of integrating their supporters according to a set of far-reaching shared ideals.65
Second, the Bolsheviks have been able to portray convincingly the myth of world revolution, which both inspires the working class and clarifies the nature of the struggle. Soviet myth making is far more effective than parliamentarianism's “medley of economic development and democracy, of majority vote and humanitarianism.”66 Finally, revolution is the existential decision, the defining constitutional moment. Revolutionary societies have the right to depict their opponents as “alien” and as “infidels” who must be destroyed. Kirchheimer admires Lenin for emphasizing the necessity of an ultimate and annihilating battle between socialism and capitalism. In this essay, 67 as well as the later “Weimar—And What Then?”68 he fairly pants with praise for the Soviets who crush their enemies instead of arguing with them.69
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