The collapse of the Weimar Republic (1918-33) haunts political debate these days. Disaffected groups again challenge, with increasing support, the most fundamental values of the liberal democracies. In dealing with the “fact of pluralism” contemporary political philosophy grapples with this challenge. Any attempt to contest conceptions of the good life going against the grain of liberal democratic values invites the charge that liberalism is just one ideology among others, each seeking to enforce upon the whole its own partial idea of the good.

The focus of this paper is not on the person, but on the work of Carl Schmitt, in particular the significance of Schmitt's concept of the political for an understanding of his legal and constitutional theory. Let me start with a short personal memory. When I was a third year law student, I read Carl Schmitt's Constitutional Theory. I came across the formulations that the state is the political unity of a people and that the rule of law component in a constitution is an unpolitical component. I was puzzled by these two remarks. I had learned from Georg Jellinek that the state, from a sociological perspective, is a purposeful corporative unit and, from a legal perspective, represents a territorially based corporation. I had also gathered some knowledge about “organic” state theories, especially that of Otto von Gierke who considers the state an organism and a real corporative personality rather than a mere legal fiction. On the basis of these theories, I felt unable to understand Schmitt's point that the state is the political unity of a people, because in those theories the political aspect is largely missing. It was only later that, by reading and studying Carl Schmitt's essay The Concept of the Political, I gradually learned to make sense of the above remarks. Thus I have discovered that that essay, and the understanding of the political elaborated in it, contains the key to understanding Carl Schmitt's constitutional theory in general. I would now like to explain this.

In his introduction to the paperback edition of Political Liberalism, John Rawls, referring to Carl Schmitt's critique of parliamentary democracy, suggests that the fall of Weimar's constitutional regime was in part due to the fact that German elites no longer believed in the possibility of a decent liberal parliamentary regime. This should, in his view, make us realize the importance of providing convincing arguments in favor of a just and well-ordered constitutional democracy. “Debates about general philosophical questions”, he says, “cannot be the daily stuff of politics, but that does not make these questions without significance, since what we think their answers are will shape the underlying attitudes of the public culture and the conduct of politics.”

In an early review of the Verfassungslehre (1928), Margit Kraft-Fuchs criticizes Carl Schmitt's argument as circular and illogical. While claiming to establish an entirely new constitutional theory, not a general theory of the state, Schmitt in fact relies on a tautology and derives “an is from an ought”. Quoting Schmitt's argument in Der Wert des Staates und die Bedeutung des Einzelnen (1914) that “The mere actuality of power at no point provides a justification unless it assumes a norm by reference to which its claim is legitimated”, Kraft-Fuchs concludes that it is “astonishing he has forgotten this basic logical insight between 1914 and 1928.”

Carl Schmitt levels two kinds of criticism against liberal parliamentarism. First, Schmitt seeks to refute the liberal conception of politics (which assumes the possibility of rational will formation) on the basis of his own existential view of the political (which employs the distinction between friend and foe). Second, Schmitt attempts to show why and how the evolution of our political system, specifically the development of mass democracy, has made parliament an obsolete institution. This approach is both more dangerous and plausible, because it does not presuppose an acceptance of Schmitt's own controversial conception of politics, and relies on observations about the parliamentary system that are shared and deplored equally by many liberals. In The Crisis of Parliamentary Democracy, Schmitt does not confront directly what he considers to be fundamental principles of the parliamentary system—rational and public discussion—but rather shows that since these principles are unrealizable given the changes which the system has undergone, parliamentary institutions remain an empty shell, devoid of any justification and credibility.

Critique of liberalism has a long tradition. However, those launching critical attacks against liberalism frequently turn out to be liberals themselves who are concerned, for instance, about the common equation of liberalism with a bourgeois attitude of “possessive individualism” or with the reduction of liberal politics to an empty proceduralism. The recent debate between liberalism and communitarianism largely amounts to such a kind of liberal self-criticism. Even outspoken communitarian critics, like Sandel, undoubtedly appreciate important achievements of liberalism; often they take these achievements more or less for granted.

The encounter between Carl Schmitt and Leo Strauss remains a source of fascination and polemics for the friends and enemies of both thinkers. According to Stephen Holmes, both Schmitt and Strauss belong to a single tradition of anti-liberalism, whose ultimate practical implication is suggested by Schmitt's fate as a Nazi apologist. Indeed, Holmes places much emphasis on Strauss's criticism of Schmitt for failing to develop a critique of liberalism that goes beyond the horizon of liberalism itself, and interprets this criticism of Schmitt as a call for a form of anti-liberalism more extreme and virulent than that propounded by Schmitt on the very eve of his membership in the Nazi party.

It is a commonplace that liberalism appears to be in crisis. While the tragedy of German liberalism consists above all in its collapse into National Socialist dictatorship, at present one often speaks of liberalism's final victory. There is no alternative, it appears, to the constitutional state. Liberal constitutional principles have been so fulfilled that no political goals and lessons seem left beyond their global self-affirmation.

The following article begins by engaging in a debate with the literature on Carl Schmitt, a literature whose most obvious feature is its age. Nevertheless, the comprehensive engagement with Carl Schmitt's work which has appeared in the meantime has not in every respect advanced our knowledge in the area discussed in this article, because its attention is chiefly focussed on other matters. But that in itself indicates a problem.

No two names better recall the polarized character of political life in mid-century Europe than Carl Schmitt and Hannah Arendt. Like so many of his peers in the Weimar intelligentsia, Schmitt eagerly polemicized against the Weimar Republic and actively sought its destruction. In 1933, he sold his soul to the Nazis and soon became one of their most impressive intellectual apologists. In striking contrast, Arendt risked her life to help anti-fascists and fellow Jews struggling to escape Germany in the immediate aftermath of the Nazi takeover. Forced to join the ranks of the thousands of “stateless” persons stripped of their German citizenship by the new regime, she ultimately found her way to New York City and a stunning career as one of our century's most impressive critics of totalitarianism. While Schmitt would continue to seize every opportunity to belittle the achievements of liberal democracy, even after the establishment of the relatively robust German Federal Republic in 1949, Arendt refused to abandon her chosen Heimat, the United States, even in its darkest hours. For Arendt, Vietnam and Watergate offered indisputable proof that the republican legacy of the American founding demanded our critical loyalty, but hardly—as one can imagine Schmitt arguing—of the inevitability of senseless political violence and authoritarian government.

The first line of Carl Schmitt's Political Theology is perhaps the most famous sentence—certainly one of the most infamous—in German political theory: “Sovereign is he who decides on the exception” [Souverän ist, wer über den Ausnahmezustand entscheidet]. And yet the full significance of this famous sentence is often underestimated. I intend to focus upon 1) its significance in the overall trajectory of Schmitt's Weimar work, and 2) its potential significance for contemporary constitutional theories of emergency powers.

Schmitt's Verfassungslehre stands as perhaps the most systematic and least circumstantial of his works. While his production is marked, on the whole, by an extraordinary sensitivity toward his own concrete situation, leading at one point to an unbounded and shameless opportunism, this particular work seems to rise above the political fray, reflecting possibly the mood of 1928, which marks the halcyon days of the Weimar republic. Recently, Ernst-Wolfgang Böckenförde has tried to shake off the Verfassungslehre from its composed academic bearing by relating its argument to the polemical friend/enemy theory developed by Schmitt in his Der Begriff des Politischen (1927) and Schmitt's characterization of the state as the political unity of a nation. Beyond this, Böckenförde has connected the Verfassungslehre to the eminently partisan notion of sovereignty put forth by Schmitt in his Politische Theologie (1922), where he flaunts his allegiance to the Catholic counterrevolution.

In one of his most famous dicta, the German legal and political theorist Carl Schmitt proclaimed it “obvious” that “all political concepts, images, and terms have a polemical meaning,” because “[t]hey are focused on a specific conflict and are bound to a concrete situation.” Taking Schmitt at his word, I argue that one must read Schmitt's masterpiece of comparative law from the Weimar period, Verfassungslehre, as a response to the Weimar state crisis. Schmitt's conceptual approach in Verfassungslehre aims to create a form of constitutional theory capable of compensating for structural defects of the Weimar state. Reading Verfassungslehre in this way also reveals that Schmitt does not present his constitutional theory as an alternative to liberal constitutionalism, but rather Schmitt's comparative history of constitutionalism in Verfassungslehre locates his decisionism at the very core of the liberal constitutional tradition.