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January 31, 2005
In Vol.15 No.1 (January 2005, pp.64-67) of the Law and Politics Book Review John E. Finn reviews Ellen Kennedy's Constitutional Failure: Carl Schmitt in Weimer. According to Finn Kennedy reads Schmitt in the context of the faultlines of constitutional liberalism, rather than just the particularity of the Weimer Republic's failed constitution. So Kennedy situates Schmitt into a larger study of the nature and limits of liberal constitutionalism.
Finn says:
"In partial answer to the question of why Schmitt's work continues to garner attention, Kennedy's examination of Schmitt's political thought shows how the troubles of Weimar are the problems of contemporary constitutionalism.
The central problem of Weimar, Kennedy argues, and to which most of Schmitt's work was directed, was not a defect found in specific constitutional provisions and practices. Instead, it was a failure of "that substance informing the constitution of political unity; the institutions of the text did not cease to function in a technical fashion---they were evacuated of all meaning and significance." (p.178). To study Schmitt, in other words, is to study and critique the nature and basis of liberal constitutionalism itself. "The fault lines of Weimar's failure are those of all contemporary liberal democracies, fissures traced and sometimes exacerbated by Carl Schmitt." (p.187).
This is quite a different account to how Australians understand the flaws of liberal constitutionalism. We see it in terms of 1975: the power of the Senate over the House of Representatives and the withdrawal of supply by conservatives to bring down a reformist social democratic government.In contrast, Schmitt gives us a neo-Nietzschean account of the faultlines of liberal constitutionalism in terms of the corrosive effects of the process of nihilism.
Finn goes on to say:
"In chapter six, Kennedy takes up the processes of constitutional failure in Weimar directly....Consequently, Schmit's inquiry into the fault lines of Weimar was an inquiry into liberal democracy more generally. What, then, were the fault lines of Weimar? Legitimacy, Democracy, Representation, and "the general crisis of modern values in a disenchanted world" (p.90).In the end, therefore, the chief fault lay in the failure of liberalism itself. "The weakness of its constitution came from the primacy of individual freedom and private interest, which worked against democratic unity." (p.187).
A key argument in Schmitt is that a written constitution is no guarantee of political or democratic unity, much less a guarantee of constitutional democracy itself. This connects the constitution as a legal document to democratic politics.
The relationship between the two can be explored in terms of the queston: does the constitution provide for a safe, stable democratic government? Australians would say that on this test their constitution is, and has been, an outstanding success. Schmitt contests this in terms of the opposition between the primacy of individual freedom and private interest working against democratic unity.
Do we not have a deeply divided nation in Australia, Britain and the US? Do we not have the hollowing out of the categories of democracy (eg., citizenship) by the market? Does the constitution and rule of law hold the opposition together? Is not the constitution our touchstone and provide the unified framework?
In LEGALITY AND LEGITIMACY Schmitt, stated that 'the law cannot protect itself' (p.20). On Kennedy's interpretation for Schmitt this meant that the formal guarantees of a constitution cannot be independent of the political circumstances. What Schmitt is challenging is the tendency to abstraction in liberal political thought about the state.
This is spelt out in Benjamin Gregg's review of Scnitt's Legality and Legitimacy in Law and Politics Book Review [Vol. 14 No. 8 (August 2004), pp.619-623]:
"Schmitt rejects rationalism in the form of legal formalism (today often called proceduralism). As early as 1912, in ... LAW AND JUDGMENT, he claims that no legal order can form a rationally consistent' closed system of norms generated by a legislature that is separate from the enforcing executive. In any given case something other than legality always remains, something beyond general norms, something deeply particular.
LEGALITY AND LEGITIMACY takes this argument further. Fixed, calculable rules and procedures open up the "legal process to all conceivable aspirations, goals, and movements, even the most radical and revolutionary, enabling them to achieve their aim without violence or disruption through a legal process that establishes order while at the same time it functions in a completely 'value-neutral' way." (p.10). Legal procedures cannot adequately secure a political system's legitimacy because a regime of robust legal proceduralism is vulnerable to a perfectly legal means for undermining the very rule of law that proceduralism seeks. Absent a certain substantive norm .... it is defenseless against organized political forces electable to parliament that would abuse or even abolish parliament."
Schmitt appeals to a point outside the logically closed circle of a legal proceduralist system. Only such an extralegal substantive norm can provide the legitimacy wrongheadedly thought to be achieved through legal proceduralism. Only the substantive norms of a metaphysical or theological elite, namely the extralegally acting executive, can "save" the modern legal community from paradoxically undermining itself by its own legality.
Many say this is a justificatin for a Hitler. But do we not get the same emphasis with the President in the US? Or the Prime Minister in Australia? Does not the Iraq war highlight the way these leaders are an extra-legally acting executive?
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Gary
Does liberalism as a political philosophy inherently lack "a substantive norm?" It certainly seems that Schmitt's analysis explains how the United States has been taken over by a small group of neocons. Perhaps that is always the risk. But if legal proceduralism cannot protect itself from such co-opting, can any system that protects individual liberty due a better job? Though I personally prefer some form of democratic socialism, I do not think any system is safe from manipulation.