Re: Franz Neumann on Carl Schmitt

On Nov 5, 11:04 am, The Other <ot...@xxxxxxxxxxxxxxx> wrote:
"Marko Amnell" <marko.amn...@xxxxxxxxxxx> writes:
Yes, Neumann is citing Schmitt's writings from the Nazi period. He
gives references in the endnotes. Let me quote a bit more from
_Behemoth_ (p. 153):

"Perhaps Germany should have been allowed to rearm, militarize the
Rhineland, and occupy the Corridor and Danzig. That is not the
question. To justify these acts by international law makes law a
mere prostitute of politics.
   "The argument unquestionably has a popular appeal.
It duped the civilized world quite successfully. The National
Socialist propaganda machine knew how to get the writings of its
international lawyers into respectable foreign periodicals. That
helped. Their trick of excluding Soviet Russia from the
international community helped too. They maintained that membership
in the international community requires homogeneity, a number of
common features and beliefs."

Thanks again for posting this interesting material.  I've never read
the works cited, but some of the ideas are developed at length in
Schmitt's later _The Nomos of the Earth_, which I have read.

I have not read _The Nomos of the Earth_ so I can't really
respond to your comments about it. The only works of Schmitt
I've read are _The Concept of the Political_ and
_Political Theology_.
 
This necessary "homogeneity", at least in _Nomos_, refers to a common
legal tradition, common economic systems (private property, as opposed
to the USSR), etc.  As usual, Schmitt looks at it historically: the
concrete, existing order wasn't built on some abstract, universal
norms.  Rather, the norms were inseparable from all these "background"
elements. The old world order defended by Schmitt was just that, a
world order, but it was oriented toward a Europe that was homogeneous
in the sense of bourgeois, Christian, etc.  The fundamental
disconnection of order and orientation, which came about when that
European orientation was destroyed, is what Schmitt defines as
nihilism.  The reductio ad absurdum is the UN in our time, where the
ridiculously-named "international community" comprises the US, Iran,
Sudan, North Korea, Sweden, Zimbabwe, etc.

This seems to reinforce the judgement that Schmitt was a
Conservative (or as I'd prefer to say, a Reactionary)
not a National Socialist. He emphasized the importance
of tradition, whereas the Nazis were true revolutionaries
who wanted to overthrow the traditional order. Schmitt
seems to have adjusted very well to the new Nazi order,
however, and applied and developed his ideas to
support the grand Nazi strategies.

So here Neumann argues that Schmitt subordinates legal arguments to
political motives, i.e. he mixes law with politics (and ethics).

Schmitt always had an ax to grind, before, during, and after the Nazi
period.

True. It's good to keep in mind that Neumann also
had a big ax to grind. He is not an unbiased commentator
on Schmitt. On the contrary, he is a committed Social
Democratic political activist writing during World War II
about his hated enemy, the Nazis.

Then on page 154 Neumann turns to the subject of the "just war" and
specifically Attorney-General Robert H. Jackson's views concerning
it:

"Mr. Jackson attacked those who have 'not caught up with this
century which, by its League of Nations Covenant with sanctions
against aggressors, the Kellogg-Briand treaty for renunciation of
war as an instrument of policy, and Argentine Anti-War treaty, swept
away the nineteenth-century basis for contending that all wars are
alike and all warriors entitled to like treatment.  Neutrals must
assist those nations who are fighting to ward off aggression--a just
war. In the same vein, there is a considerable body of literature
holding that neutrals may discriminate against any nation violating
the Kellogg-Briand pact. [...]
   "This new theory, especially in the Jackson formulation,
ought to be quite acceptable to German philosophy of law. Yet they
attack it, invoking the oldest and most rationalistic arguments in
existence. The same Carl Schmitt who invented 'thinking in concrete
words,' to replace abstract, rationalistic thought, has devoted many
articles to combating the new theory of war and neutrality. He
denies the distinction between just and unjust wars, and that
neutrality can be 'halved'."

All I can do is compare this to _Nomos_, which was published after the
war.  Again, Schmitt is defending the modern (pre-20th-century) order
where war was "bracketed" and humanized by separating the legal
question of jus ad bellum from the religious and moral questions of
justice.  Thus, war was treated as analogous to a duel, where the
enemy was legitimate, rather than a criminal or enemy of God who must
be annihilated, and where neutrality was a respectable and even
praiseworthy position.  It's interesting that Neumann accuses Schmitt
of rationalism, because Schmitt himself praised this "bracketing" of
war as a great achievement of modern *rationalism*, using exactly
those words.

So here Neumann accuses Schmitt of inconsistency, of abandoning the
link between law and ethics when it leads to conclusions that he
doesn't like. Instead of accepting the notion of a "just war", he
reverts to traditional legal arguments that exclude ethics.

The writings I've read have been very consistent.  Schmitt defends the
"jus publicum Europaeum", the world order existing from about the 16th
or 17th century till the end of the 19th century.

I think that Neumann's criticism here is rather weak.
Just because Schmitt politicizes legal arguments does
not mean that he therefore needs to accept *all* legal
arguments that appeal to ethics, such as the notion
of a "just war."

Then on page 156 Neumann addresses the "Germanic Monroe Doctrine.":

"With the coming of the present war, however, a completely new
pattern of international law has been developed: the Germanic Monroe
Doctrine.  Geopolitics and international law have been joined.
   "The 'large space' theory need not necessarily
bring about a tranformation of accepted international law. If one
holds that states are the sole subjects of international relations,
it does not matter whether subjects are small- or large-space
states, whether they give themselves the fancy title of Reich or
remain content with mere 'state'. That is still the view of many
German international lawyers. But the dominant school has abandoned
both traditional concepts, state and international law. One writer
[namely Carl Schmitt] posed the problem this way: 'If the
development really tends toward large spaces, is "international law"
then that concerned with the relation between the large spaces or is
it the law of the free people living in one common large space?"
The endnote (number 69) for the above passage reads: Carl Schmitt,
"Raum und Grossraum in Völkerrecht," in Zeitschrift für Völkerrecht,
1940 (24), pp. 145-79, p. 145.  Neuman then goes on to say: "The
very framing of the question reveals the basic motive. It not only
stamps Poles, Czechs, Dutch, Belgians, and Jews as 'free' people,
but it also justifies the hierarchy of races within the German realm
by a body of rules, called international law but in fact nothing
other than the law governing the empire."

So, while you are right that Schmitt does not "justify the concept
of Lebensraum", Neumann does accuse him of turning "international
law" into the rules that are to govern the Nazi empire of conquest
in Europe.

I wouldn't be surprised if Schmitt did use his "descriptive" theory to
justify German expansion, despite his denials.  I don't know the
literature.  But if that's so, it's interesting that Schmitt continued
to develop his Grossraum theory for years even after the war.

Yes, it's a bit odd that he was able to apply the same ideas
so easily to both Nazi Germany and the postwar order.
One analogy that comes to mind is the fact that the idea
for the European Central Bank originated in Nazi Germany.
Like the European Union, the Nazis needed to design
common institutions for a pan-European Grossraum.

Then a bit further on the same page (156) Neumann writes:

[...]

[Schmitt's quote?] 'Behind the facade of general norms (of
international law) lies, in reality, the system of Anglo-Saxon
world imperialism.'

Yes, that is a direct quote from Schmitt. I did not include
the endnote (number 72) here because the note is just
"Ibid, p. 147" in other words the quote is on page 147 of
the article referred to in endnote 69: "Raum und Grossraum
in Völkerrecht," in Zeitschrift für Völkerrecht, 1940 (24).
The parentheses are actually square brackets in the text
of the book, so the words "[of international law]" were
inserted by Neumann. I changed them to parentheses
to avoid giving the impression it was my own note.

Universalism works on the assumption that the equality
of all this is implied in the very notion of sovereignty. Since
states no longer stand in the center of international law, the ideas
of state sovereingty and state equality must fall. Universalism must
be replaced by thinking in 'concrete orders' and the most concrete
of all orders existing is the grossdeutsche Reich.  Steding's book
comes close to this conception, and, though it has found few other
echoes in Germany, the National Socialist international lawyers have
given it much attention."

Schmitt agreed with critics on the left that interstate economic and
cultural domination eroded true sovereignty.  Since the international
order based on sovereign states was disappearing, not just de jure but
de facto as well, in the 20th century, public law needed to reflect
that reality.  Schmitt of course mourned the loss of the order based
on sovereign states more than anyone.  Again, his approach is
historical: you can't abstract norms from a concrete order, especially
a dead one, and apply them universally.  I don't doubt that he used
this analysis to justify German actions in WW2.  That doesn't
discredit the analysis itself though.

Yes, but the fact that these ideas were apparently developed
to justify Nazi conquests during World War II does throw a
different light on them. Or did he start developing these ideas
before 1933?

I went through all the endnotes to _Behemoth_ and although
Schmitt is discussed here and there throughout the book,
and his importance is emphasised, there are direct
references to his writings in only two other sections.
The first is at the very beginning of the book where
Neumann discusses Schmitt's criticism of the ineffectual
decision-making processes of the Weimar Republic and
Schmitt's rejection of parliamentarism. The works cited are:

Die geistesgeschichtliche Lage des modernen
Parlementarismus, 1926

Der Hüter des Verfassung, 1931

Der Begriff des Politischen, 1932

So, Neumann does cite Schmitt's writings from before the
Nazi period, but there is nothing here that would suggest
that Schmitt was a Nazi before 1933. He joined the Nazi
Party in 1933 (in the same month as Martin Heidegger).

The second section with direct references is near
the end of the book and the references are more
directly relevant to the issue of the relationship
between Schmitt's decisionism and the Nazi system.
Neumann writes on page 447:

"National Socialism completely destroys the generality
of the law and with it the independence of the judiciary
and the prohibition of retroactivity. Legal standards of
conduct acquire greater significance than before because
even the restrictions set up by parliamentary democracy
against the demands of monopoly, insufficient as they
may have been, have been removed. By its very vagueness,
the legal standard of conduct serves to bring pre-National
Socialist positive law into agreement with the demands
of the new rulers. National Socialism postulates the absolute
subjection of the judge to the law, but the standards of
conduct make it possible for him to introduce political
elements even when they conflict with positive law.
'The principles of National Socialism are immediately
and exclusively valid for the application and administration
of general standards of conduct through the judge,
attorney, or teacher of law.'
The endnote (number 73) for the above passage reads:
Carl Schmitt, Fünf Leitsätze für die Rechtspraxis,
Berlin (Rule 4).
Neumann continues:
"The judge has been reduced to the status of a police
official."

And further down the page Neumann writes:

"Since law is identical with the will of the Leader,
since the Leader can send political opponents
to their death without any judicial procedures,
and since such an act is glorified as the highest
realization of justice, ..."
The endnote (number 76) here reads:
Carl Schmitt, "Der Führer schützt das Recht,"
in Deutsche Juristenzeitung, 1934 (29), p. 945.

So here we have evidence that as soon as the
Nazis seized power, Schmitt embraced the Führer
as the embodiment of his decisionist political
philosophy of sovereignty, familiar from his most
well-known and influential book _The Concept of
the Political_. The sovereign is defined as the
one who decides and his decision is absolute.

The quote above continues:
"... we can no longer speak of a specific character
of law. Law is now a technical means for the
achivement of specific political aims. It is merely
the command of the sovereign. To this extent, the
juristic theory of the fascist state is decisionism.
Law is merely an arcanum dominationis, a means
for the stabilization of power.
"The juristic ideology of the National Socialist
state is very different from this analysis, of course.
It takes the form of institutionalism, or, as Carl
Schmitt and other calls it, a 'concrete order and
structure [or community] thought.'

The comment in brackets is Neumann's and the
endnote (number 77) reads:
"Universally accepted. See Schmitt, Über die drei
Arten des rechtswissenschaftlichen Denkens,
Hamburg, 1934."

The final quote from Schmitt is on page 451:
"The National Socialists avoid the word
institutionalism, primarily 'in order to maintain
a distance from Neo-Thomism.'
[The endnote (number 83) here reads:
Schmitt, Ueber die ..., p. 57.]

.

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