Recent scholarly interpretations of Carl Schmitt's The Tyranny of Values have dwelt upon Schmitt's apparent stance as a defender of legal positivism and formalism against a jurisprudence that grounds itself upon an objective order of values.Footnote 1 Where other recent readers of Schmitt's postwar work have overlooked The Tyranny of Values entirely,Footnote 2 the scholars who attend to The Tyranny of Values have stressed that the Schmitt of the Nazi period had been a stark critic of legal positivism, appealing to a substantive (and racially inflected) constitutional order against the letter of the law as found in the statutes. These scholars stress that Schmitt's Tyranny thus represents a postwar volte-face on the question of legal positivism, with Schmitt supporting authoritarian and racialist “values” in jurisprudence before 1945 and critiquing liberal and egalitarian values on the basis of a strategically adopted legal positivism thereafter.Footnote 3
Taking a different, yet complementary, approach to Schmitt's late, privately printed pamphlet, the present article proceeds in five sections. The first section situates The Tyranny of Values within Schmitt's anonymous op-ed campaign for blanket Nazi amnesty, while the second section considers the context of Schmitt's defense of the Nazi propagandist Veit Harlan. The third section examines the 1960 edition of The Tyranny of Values in light of these two contexts. The fourth section considers Carl Schmitt's responses to Karl Löwith in the controversies surrounding Schmitt's pamphlet and Schmitt's alterations to the 1967 edition of the work. The final section concludes with the aim of shedding further light on Carl Schmitt's engagements on behalf of National Socialism (and National Socialists) in the aftermath of the Second World War.
I
Circulating in multiple journals and newspapers in Germany and in Europe more broadly in the years following the Second World War, there appeared a short, anonymous opinion column advocating blanket amnesty for National Socialists accused of war crimes, crimes against the Jewish people and crimes against humanity, each time in similar form and with a similar argumentative thrust, albeit with variations. Expressing disaffection with de-Nazification, the anonymous author of the column claimed that de-Nazification itself was a manifestation of the “Cold Civil War.” Indeed, the writer continued, “The distinguishing mark of this civil war consists in the treatment of the other as criminal, murderer, saboteur and gangster.”Footnote 4 This anonymous opinion piece claimed that civil wars, of which the “Cold Civil War” was an instance, have historically been resolved only by one of two events. “All civil wars in world history,” the writer maintained, “which did not end in the annihilation of the opposing side have ended in an amnesty.”Footnote 5
Amnesty, on this writer's account, was not a matter of limited scope. In this regard, the concept of amnesty was to be sharply distinguished from pardoning. Amnesty, the author asserted, “means more than a mere pardon on account of a minor offense.”Footnote 6 Reiterating the point, the author stressed that amnesty “is not pardoning and it is not alms-giving. He who receives amnesty must also grant it, and he who grants it must know that he receives it as well.”Footnote 7
In contrast to mere pardon, “The word amnesty means forgetting,” the author contended, “and not only forgetting but also the strict prohibition [Verbot] against rummaging around in the past and seeking cause for further acts of revenge and further claims of reparation.”Footnote 8 For this notion of amnesty, the author was keen to grasp for historical precedents and examples. The advocate of Nazi amnesty asserted, “This word amnesty appears for the first time in human language after a terrible thirty years’ war, the Peloponnesian War,[Footnote 9] the war between brothers of the Greek tribes and cities (four hundred years before the Birth of Christ).” Moreover, the author continued, “Cromwell's English Revolution was brought to an end in the year 1660 by means of a law of exculpation and forgetting, an Indemnity and Oblivion Act.”Footnote 10
Seemingly bringing the testimony of English common law against the American and British forces then occupying the defeated Germany, the author noted,
In England today there is still a law on the books from 1495, which has apparently disappeared from the memory of the English, who haven't experienced a civil war in centuries, but which is nonetheless still legally binding and which merits a moment of reflection: after the restoration of normal affairs no one may be punished for the fact that he stood on the wrong side.Footnote 11
In stressing that amnesty means oblivion and forgetting, the anonymous advocate for Nazi amnesty was pushing not merely for the nullification, pardoning and non-persecution of the atrocities of National Socialism. Rather, the writer was arguing that such atrocities must be forgotten. “Amnesty is more than a discharging of the persecutorial apparatus of the state,” the author wrote. “It is a reciprocal act of forgetting.”Footnote 12 Against those who would initiate or heed the call never to forget, this anonymous writer would assert the opposite.
This short, anonymously penned column finished with a hortatory clause, rounding off perhaps with a kind of prayer. “At the very least,” the writer offered in closing, “let us sustain this recollection of a remnant of holy right, that therewith the final and only means of ending the Cold Civil War in a humane way may not be forgotten!”Footnote 13
The author of this missive, reprinted multiple times in various German and European newspapers and journals in the years 1949–1959, was none other than the Nazi jurist and former section head of the Association of National Socialistic German Jurists, Carl Schmitt. In the three decades following his release from solitary confinement at Nuremberg in 1947, Schmitt would repeatedly reprise the theme of the absence of German guilt for the atrocities of the Second World War, not least in his polemical pamphlet The Tyranny of Values, insisting that any ex post criminal convictions for Nazi atrocities that were juridically permissible when committed were an aberration.Footnote 14
For background to this rhetoric of National Socialist exculpation, and to the circumstances which would inflect it in Schmitt's privately printed pamphlet The Tyranny of Values upon its first appearance a decade later, some historical details and their reflection in postwar German jurisprudence merit consideration.
II. Background: Veit Harlan and the Lüth judgment
At the end of Veit Harlan's 1940 film Jud Süß, the film's titular protagonist, depicted as a bearded and mustachioed Jewish financial adviser, and an erstwhile torturer, rapist and murderer in addition, is narrowly encaged before being hung from the high gallows of southern Germany in an execution preceding the expulsion of the Jews of Württemberg from its domains.Footnote 15 While putatively based on the eighteenth-century life of Joseph Süss Oppenheimer, Harlan's film, financially underwritten by Goebbels and the Nazi Propaganda Ministry, fictionalized to propagandistic and anti-Jewish ends. In the crowd scenes for the film, Harlan infamously deployed extras from the Jewish ghettos of Prague and Lublin, then under Nazi occupation.Footnote 16 Not for the last time, in Harlan's film Jews were conscripted into the construction of the propaganda which was to be used against them. Harlan's Hetzfilm stirring moralized panic and hatred against the Jewish people received wide publicity and play throughout a National Socialist Germany at the pinnacle of its military and imperial power upon and after its release in September 1940, not least in formal showings for SS officers, National Socialist police and concentration camp guards.Footnote 17 For his work as author of the screenplay and director of anti-Jewish propaganda films, Harlan was charged with crimes against humanity and criminal libel in British-occupied Hamburg in the aftermath of the Second World War, yet was twice juridically cleared, ultimately on the ground of Harlan's claim that in the circumstances he could not have acted otherwise.Footnote 18
Following the Second World War, Veit Harlan returned to filmmaking. Less than a decade after Jud Süß played to acclaim in German cinemas and before audiences throughout German-occupied Europe, Harlan had been juridically cleared of culpability by the order in place in the aftermath of the Second World War. By 1950, Veit Harlan's latest cinematic offerings were again given prominent place in the festive Week of German Film sponsored at state expense in Hamburg in 1950. The law courts record the sequence of events as follows. At the opening of the Week of German Film in Hamburg in September 1950, the director of the Hamburg Senate and State Press Office of the Free Hanseatic City of Hamburg, Erich Lüth, declared the following in his capacity as director of the Hamburg Press Club in a discussion with film distributors and film producers:
After the German film industry destroyed its moral reputation in the Third Reich, one man is in any case least fit of all to restore its reputation: the screenwriter and director of the film Jud Süß! May we spare ourselves further unforeseeable shame before the entire world, which may arise, should one seek to set him up as a representative of German film. His acquittal in Hamburg was only formal. The grounding of the decision was a moral damnation. Here we require of the distributors and theater possessors a stance, which doesn't come cheap, which should cost one something: character. And this character I wish for German film. If it shows it and demonstrates the proof via fantasia, optical cleverness and sureness of handicraft then it deserves every help and then it will attain something which it needs to live: success with a German as with an international public.Footnote 19
When lawyers for Harlan's production company protested against Lüth's declaration against Harlan, Lüth responded in writing in an open letter which he made public via the Hamburg Press Club:Footnote 20
The court [Schwurgericht] hardly refuted that Veit Harlan was for a great period during the time of the Hitler-Reich the “Number 1 Nazi film director” and via his film Jud Süß one of the most important exponents of the Nazis’ murderous Jew-baiting [mörderische Judenhetze]. At home and abroad there may be business people who are not disturbed by Harlan's comeback. Germany's esteem in the world, however, must not be ruined anew by robust money-makers [robusten Geldverdiener] … For all these reasons, it is not only the right of responsible Germans, but even their duty in the battle against this unworthy representative of German film, to go beyond protest and hold themselves ready for the boycott!Footnote 21
On the basis of this boycott declaration that denounced Harlan as a criminal and a “most important exponent of murderous Jew-baiting,” Harlan's producers sued Lüth both for misprision (Unterlassung) and for making appeals for a morally reprehensible boycott (sittenwidriger Boykottaufruf), because, the lawyers claimed, the calls for boycott were based upon the factually inaccurate claim that Harlan was a criminal. Harlan's producers argued that Lüth's call for a boycott of Harlan's work violated Section 826 of the Bürgerliches Gesetzbuch (BGB), the German Civil Code, since Harlan had been cleared of all criminal charges. That section of the German Civil Code obliges that whoever damages another intentionally in a manner proscribed by law and against good morals is obliged to compensate the damages.Footnote 22 The Hamburg courts decided the question relying wholly on the Civil Code. The lawyers for Harlan's producers argued that Lüth knew that Harlan had been cleared of criminal charges and thus aimed intentionally to damage Harlan by calling for a boycott on the basis of Harlan's activities in the service of the Third Reich. Harlan's producers won the case in the civil court,Footnote 23 with the result that Lüth was forbidden by court order to call for the German public not to see the film and to call for theater owners and film distributors not to show it.Footnote 24
Lüth appealed this civil judgment to the superior court in the state of Hamburg and simultaneously appealed to the Federal Constitutional Court, arguing that he was expressing political and moral critique of Harlan and that this was protected under Article 5 of the German Basic Law, which grants express protection to freedom of expression.Footnote 25 Where the civil court had aimed to test whether his claims of Harlan's moral reprehensibility were true, Lüth and his lawyers maintained that what mattered was whether these claims were legally permissible and that they were indeed permissible as constitutionally protected speech.
In the Lüth case, the contested constitutional question hinged on whether basic rights (such as protections for freedom of expression) applied merely vertically (to be asserted by the individual citizen against the state) or whether rights protections applied also horizontally (to be asserted by citizens against other citizens)—in other words, whether constitutional protections to freedom of speech applied only in public law (vertically) or also in civil and private law (horizontally). If constitutional rights protections applied only vertically (against the state and its agents), as the lawyers representing Harlan and his film producers contended, then Harlan and the film production companies might assert damages for misprision against Lüth and forbid his calls for boycott. On the contrary, if Lüth was speaking in his capacity as an individual citizen and if constitutional protections against interference with freedom of expression might be claimed not only against the state but also against one's fellow citizens, then Lüth might assert his right to call Veit Harlan a moral reprobate and advocate a boycott of Harlan's work on the basis of the latter's past as a Nazi propagandist irrespective of whether or not Harlan had been convicted of a crime. In this case, the Hamburg state courts decided the matter in the first manner; on appeal, the German Federal Constitutional Court decided the matter in the second.
The jurisprudence of the Federal Republic prior to the decision had held that basic rights (like freedom of expression) applied only vertically (against the state) and not against fellow citizens in private law.Footnote 26 The judgment of the Federal Constitutional Court in the Lüth case changed this, and expanded the applicability of basic rights so that they applied both vertically and horizontally, while holding that Lüth called for the boycott in his private, rather than public, capacity. The expansion of the applicability of basic rights, like freedom of opinion and expression, into the domain of private law was effected by the Constitutional Court in the Lüth case via value-theoretical argumentation.Footnote 27 While stressing that the basic rights in the German Basic Law were in the first instance rights of defense (Abwehrrechte) of the individual against the state, the deciding opinion in the Lüth case argued, “It is equally correct that the Basic Law, which does not desire to be a value-neutral order, has also erected an objective order of values [objektive Wertordnung] in its passage on the basic rights and that precisely herein a principled strengthening of the basic rights comes to expression. This value system,” the Court continued, “which finds its midpoint within the social community of the freely developing human personality and its dignity, must hold as a constitutional–legal fundamental decision for all domains of law”—from legislation to administration to civil law, in the domains of both public and private law.Footnote 28 On the account of the Federal Constitutional Court, via the “objective order of values” in the Basic Law, the right to freedom of expression permeates into civil law. The court laid out a general doctrine of interpreting each part of the law (including private law) in light of the objective order of values enshrined in the Basic Law. In its decision, the court first set out the general interpretive doctrine in order to overturn the misprision (Unterlassung) charges against Erich Lüth. Where the lower legal instances, such as the civil courts in Hamburg, had decided the case solely on the basis of the Bürgerliche Gesetzbuch (the Civil Code), the Federal Constitutional Court, in a historical first, applied the rights of the Basic Law to the case: without the application of the “objective order of values” enshrined in the Basic Law to the entirety of German law, the charges of misprision and boycotting contrary to good morals would not have been overturned.Footnote 29 By expanding the basic right of freedom of expression into the domain of private law, on the basis of the “objective order of values” present in the basic rights of the Basic Law, the court allowed that Lüth's right of freedom of expression trumped the charge of misprision and prohibition of his boycott on moral grounds, and the court thereby asserted that Lüth's constitutional rights overrode the private rights of Harlan and his producers and distributors. The civil legal judgments against Lüth were dissolved and with them the claim that Lüth had committed misprision against Harlan in proclaiming him “one of the most important exponents of murderous Jew-baiting by the Nazis.”
III. Carl Schmitt and the Lüth decision: The Tyranny of Values
From the early 1950s onward, Carl Schmitt expressed a keen interest in the Lüth case. In a letter to his former doctoral student Ernst Forsthoff dated 3 September 1953, he lamented the “persecutions driven ever further” of former Nazi officials and collaborators.Footnote 30 The example Schmitt marshaled was that of “Karl Korn” initiating a “kind of Veit-Harlan affair against Heidegger” in the pages of the Frankfurter Allgemeine Zeitung.Footnote 31 In his personal files and records, Schmitt assembled materials of calls to prohibit, ban and boycott his own public speech and his ability to assume a platform within a university setting, but also press materials and newspaper clippings related to Harlan's case and the calls for boycott of the Nazi cineaste's postwar films.Footnote 32 As the historian Kai Burkhardt observed, considering Schmitt's stance toward the Lüth case, “In this case, Schmitt stood on Harlan's side.”Footnote 33
Following the 15 January 1958 decision of the Federal Constitutional Court for Lüth and against Harlan, Schmitt's language in his postwar diary Glossarium (running in the expanded edition to the end of 1958) turned increasingly to a concern with things being transformed into values (Verwertung).Footnote 34 These concerns would be reiterated in Schmitt's lecture on “The Tyranny of Values” delivered in Ebrach later in the following year. As Schmitt himself observes in the 1967 introduction to the second edition of his text, The Tyranny of Values emerged out of this lecture, delivered in October of 1959.
Invited to speak at the restricted private seminar in Ebrach organized by his former doctoral student Ernst Forsthoff (like Schmitt, an early supporter of National Socialism and author of the 1933 Nazi pamphlet Der totale Staat),Footnote 35 Schmitt observed that his remarks in the published text “pertain to a discussion on ‘Virtue and Value in State Theory,’ which in connection with a presentation by Professor Ernst Forsthoff took place in Ebrach on 23 October 1959.”Footnote 36 Having been delivered as a lecture, the text of The Tyranny of Values was, on Schmitt's account, “worked over and made available to the participants of the conference and some friends as a private printing of roughly 16 pages in an edition of 200 copies.”Footnote 37 In line with the setting addressing the participants of Forsthoff's invitation-only seminar (which, in addition to Forsthoff and his students, included both Schmitt's fellow jurists and several of his former comrades in National Socialism), Schmitt's Tyranny of Values pursued a critique of the jurisprudential basis of the judgment in the Lüth case and with it an indirect defense of Veit Harlan against charges of criminality and boycotts related to the crimes of Nazism.
Schmitt's defense of Veit Harlan in The Tyranny of Values pursues a highly indirect rhetorical strategy. In the pamphlet, Schmitt attacks the philosophic fundament of value theory in order to undermine the very notion of an “objective order of values,”Footnote 38 the basis upon which the Federal Constitutional Court had expanded the constitutional protections of freedom of speech in the Basic Law into private law, in order to overturn the misprision charges against Lüth and to rule against Harlan in the boycott case.
The Tyranny of Values is marked in its subtitle as the “reflections of a jurist”Footnote 39—with the accompanying ambiguity that a jurist may be a mere citizen, a legal scholar, or a high state functionary. In Schmitt's pamphlet the reflections of a jurist are juxtaposed against those who would wield value theory and philosophy in their jurisprudence,Footnote 40 with the implication that a jurist, rather than a freethinker or philosopher, would stick with jus and jura. With or without great subtlety, Schmitt is situating himself as more of a jurist than those seated upon the Federal Constitutional Court in temporal proximity to the original publication of his pamphlet.
Schmitt opens his pamphlet with a set of sharply pointed questions. “What are values?” Schmitt asks, and, further, what does a value philosophy signify? What does a value philosophy mean?Footnote 41 Schmitt begins his approach by writing on how values are ordinarily spoken about. Values, Schmitt stresses, are distinguished from things which lack value.Footnote 42 But crucially, Schmitt is quick to point out, values are usually ascribed not to persons, but to things—people are spoken of as having dignity; things are spoken of as having value.Footnote 43
Continuing to elucidate what he takes to be the grammar of the concept of value, Schmitt notes that the grammar of value implies the nonexistence of value. Values, Schmitt says, are said to hold rather than to be or exist: “Value is not, rather it holds.”Footnote 44 The way in which value is spoken about, on this view, points to something dubious about value itself. “The validity admittedly implies,” Schmitt continues, “as we shall yet see more closely, an all-the-stronger compulsion toward realization. Value precisely lusts after actualization. It isn't real, but directed toward realization and longs for enforcement and implementation.”Footnote 45 Three paragraphs into his pamphlet, Schmitt has already asserted not only that the term “value” is improperly applied to persons (and to relations between them) but also that value, the conceptual basis for the decision in the Lüth judgment, isn't real (“Es ist nicht wirklich”)—value, properly understood, doesn't even exist. If values do not exist, then appeals to values simply express someone's preferences or wishes. Thus the appeal to values is simply a way to impose one's own preferences on others. On this argument, the justices of the Federal Constitutional Court rendered their decision for Lüth and against Harlan on the ground of an unreality, on the basis of nothing.
In the pamphlet, Schmitt turns from critically elucidating the grammar of value, in which he had emphasized the unreality of value terms, to sketching a genealogy of value in the history of ideas in the nineteenth and twentieth centuries. Schmitt begins this genealogy with an extensive citation from Heidegger's 1950 collection Holzwege, in which Heidegger claims that the popularization of the language of value begins with the thought of Friedrich Nietzsche, from which point in the history of thought, “Value and the valuable become the positivistic ersatz for the metaphysical.”Footnote 46 Following this protracted quotation, Schmitt quickly affirms Heidegger's assessment in his own voice. “With these sentences,” Schmitt writes, “Martin Heidegger aptly defined and rightly placed the ancestry and situation of value philosophy in the history of philosophy.”Footnote 47 Value philosophy, on this picture, represents a nineteenth-century attempt of the humanities and human sciences to respond to the challenge of a value-free empirical science which sought causal laws that seemed to impinge upon human “religious–ethical–juristic responsibility.” “Value philosophy,” Schmitt maintained, “answered this challenge, in setting against the realm of an only causally defined being a realm of values, as a realm of ideal validity. It was an attempt to maintain the human as a free, responsible essence, not, namely, in being [Sein], but at least in the holding of that which one called value.”Footnote 48
Value is thus figured, by both Schmitt and Schmitt's Heidegger, as a term which attempts to substitute for virtue, dignity, piety and sanctity while trying to save human responsibility within a broader secularization narrative of the history of philosophy and ethical language. It is not wholly clear, on Schmitt's presentation, whether he regards the attempt (Versuch) of value philosophy to have been a successful one. Crucially, on this presentation, value is ersatz metaphysics—value is not constitutive of the strict reading of the letter of the law as written.
From deploying Heidegger's assessment of value as ersatz metaphysics, Schmitt turns to Max Weber's view of value. Value theory, Schmitt is keen to observe, is a matter of setting values, laying them down, and making them hold. Setting down values poses the question of who is to set them down—a human, a god, a king, a legislature, a court or a constitutional assembly of the people as a whole? “Who is it now,” Schmitt asks, “who sets values here?”Footnote 49 Schmitt, who knew and studied with Weber at the end of the latter's academic career, answers his own question with an initially laudatory account of the thought of his former teacher: “In Max Weber we find the clearest and to that extent also the most honest answers to these questions. According to him it is the human individual, who in full, pure subjective freedom of decision sets values. In this way it avoids the absolute value-freedom of scientific positivism and sets it free, that is: subjective worldview against scientific positivism.”Footnote 50
Yet, for Schmitt, Weber's subjective account of values situated within potentially incommensurable worldviews has a fatal and potentially frightening flip side. Drawing attention to Weber's analysis of “the battle of value orders” (Der Kampf der Wertordnungen),Footnote 51 Schmitt writes, “The purely subjective freedom of value setting, however, leads to an eternal battle of values and of worldviews, a war of all against all, an eternal bellum omnium contra omnes, in comparison to which the old bellum omnium contra omnes and even the murderous natural condition of the state philosophy of Thomas Hobbes are true idylls.”Footnote 52 Schmitt's description of Weber's account of interminable value conflict resonates with the language of the Federal Constitutional Court in the Lüth judgment. Where the justices grounded their expansion of the basic rights into private law on the ground of an “order of values” (Wertordnung), Schmitt here deploys this very language to offer an image of ceaseless and exacerbated violent conflict—more violent indeed than the frightful depiction of the state of mere nature in chapter 13 of Thomas Hobbes's Leviathan. As in his earlier anonymous “Amnesty” op-ed, Schmitt emphasizes that the ability to call someone not convicted of crimes a “war criminal” or violator of human rights will serve only to exacerbate latent and open social conflicts.
Continuing his genealogy of value theory into twentieth-century philosophy, Schmitt presents Nicolai Hartmann and Max Scheler as having “attempted to avoid the subjectivism of valuations and to find an objective and material value philosophy.”Footnote 53 Depicting these attempts as unsuccessful, Schmitt writes that in pursuing this aim of objectivizing value,
Max Scheler erected a stadial order of values, which went from the bottom to the top, from useful to holy. Nicolai Hartmann constructed a system of the objective relation of a real world in layers, the lowest of which was to have been the anorganic, the highest of which was to have been the spiritual. But however high and holy certain values may be held, as values they only ever hold for something or for someone.Footnote 54
Schmitt thus maintains that material and objective value theory fail in their attempts to remove the subjectivity of value discourse and the interminable conflict to which it seems to give rise. An objective order of values, on this account, is no less subjective for being labeled otherwise.
Schmitt's genealogy of value thinking in the history of nineteenth- and twentieth-century thought ends where it began, with the grammar of value discourse. Values are set and held—they don't exist apart from a valuing subject. “No one can escape the immanent logic of value-thinking,” Schmitt holds;
Whether subjective or objective,[Footnote 55] formal or material, as soon as value appears, a specific thought circuit becomes unavoidable. It is—one must already say: compulsorily—given with every value thinking. As that which is specific lies precisely therein, that instead of being it only has validity. The setting is consequently nothing, if it is not put through.Footnote 56
Where in his Concept of the Political Schmitt had stressed that “whoever says humanity desires to deceive,”Footnote 57 in The Tyranny of Values Schmitt echoes his earlier claim with an appeal directed against the Lüth judgment, “Whoever says value, wants to make valid and impose values. Virtues one exercises; norms one applies; commands are fulfilled; but values are set down and imposed. Whoever asserts their validity must make them valid. Whoever says that they're valid without a human making them valid, desires to deceive.”Footnote 58 In sum, on Schmitt's account, as a matter of philosophic grammar, values aren't real; as a matter of philosophic history, values are ersatz metaphysics and stress subjective worldviews in a way that leads to interminable conflict and violence. All attempts to render values “objective,” on Schmitt's narrative, expose themselves as little more than lending expression to a will to power.
Closing out his exordium in The Tyranny of Values, Schmitt notes that the distinctions of value theory are “capable of being linked up with a complex situation.”Footnote 59 Schmitt's discursive situation in the 1960 privately printed pamphlet version of The Tyranny of Values shares certain surface or structural ambiguities with the speech situation of both Lüth and Harlan in the political circumstances leading up to the Lüth judgment. As was the situation for Lüth, it is potentially ambiguous whether Schmitt, in addressing the jurists assembled in Ebrach, is speaking wholly in his capacity as a private citizen or, rather more ceremoniously, as a former representative of the Nazi state addressing up-and-coming legal academics alongside older National Socialist jurists, at a postwar retreat especially for them.Footnote 60 Schmitt regarded Veit Harlan, as his 1953 letter to Ernst Forsthoff makes clear,Footnote 61 as the victim of “persecutions driven ever further” on account of Harlan's prior engagements on behalf of National Socialism.Footnote 62 No less, Schmitt viewed himself as subject to similar mistreatment—under a university teaching prohibition from the German stateFootnote 63 and subject to calls ranging from boycott to war crimes tribunals for his advocacy of Nazi foreign policy, racial discrimination against Jews, and defenses of German atrocities in the Shoah.Footnote 64 Schmitt perceived himself, as he perceived Harlan, to be subject to persecution in the absence of a statutory violation which, in these instances, he held to be equivalent to the absence of crime.Footnote 65
The private printing of the first edition of The Tyranny of Values may seem to play upon both ambiguities of this discursive situation. The text is at once not wholly public, as a Privatdruck distributed, in part, within the circles of Schmitt's former Nazi disciples, yet not wholly private, as it is written, expressed, spoken and printed to be circulated, disseminated and shared. The private printing of The Tyranny of Values may thus be read as a loose commentary on the status of prohibiting boycotts in private law in the aftermath of the Lüth case. Lüth's calls for the boycott of Harlan's postwar films threatened the commercial interests of Harlan's production company, which sued Lüth to prohibit the boycott, initially with success. Yet because Schmitt's pamphlet was circulated without the need to profit from booksales, calls to boycott Schmitt's Tyranny of Values might prove correspondingly ineffective. With more than a hint of dark humor, Schmitt thus winks away a potential call to boycott his text despite such a call's newly acquired status of constitutionally protected speech.
As The Tyranny of Values draws to a close, Schmitt concludes his polemic against the language of value with a reflection on the history of National Socialism and works which were appropriated by National Socialism to the end of propagating atrocities. In the final section of the pamphlet Schmitt states that
In the year 1920 there appeared in Germany a text, which bore an ominous title: Freigabe der Vernichtung lebensunwerten Lebens [Permitting the Annihilation of Life Unworthy of Life[Footnote 66]]. Its authors were two highly regarded German scholars from the best tradition of German education, the medical doctor Alfred Hoche and the jurist Karl Binding. Both were liberal humans of their time, both ensouled with the best, humane intentions. Both have reflected in a really moving way on how one could hinder an abuse of their proposals for the annihilation of life not worthy of living via reservations and precautions of all kinds. It would be not only unjust, but also despicable, to attach to both German scholars any guilt or responsibility ex post [Footnote 67] for the terrifying practice of the annihilation of life unworthy of living, which became a reality twenty years later.Footnote 68
Schmitt here generalizes his critique of post-Second World War trials of Nazi criminals emphasizing that “any guilt or responsibility ex post” would be “not only unjust, but also despicable.” Moreover, Schmitt recapitulates his own Nazi convictions, in 1960, by redescribing the victims of the Shoah as suffering the fate of “the annihilation of life unworthy of living.”Footnote 69 This claim may fairly be read as a continuing public print endorsement of the Shoah in the 1960s and 1970s by one of the leading lawyers of National Socialism.Footnote 70 With this, Schmitt's polemical target in this pamphlet, pursued with indirection at several levels of remove, becomes frighteningly clear and explicitly direct: he aims to defend Harlan in the Lüth case, but also, more broadly, all those (like himself) who have been accused of war crimes, atrocities, crimes against the Jewish people and crimes against humanity for their actions on behalf of German National Socialism. Schmitt's pamphlet, The Tyranny of Values, and his anonymously circulated op-ed, “Amnesty and the Force of Forgetting,” share a joint aim and a common polemical thrust: the defense and exculpation of Nazi war criminals against those who might ascribe to them “any guilt or responsibility ex post.”
IV. Karl Löwith, the critique of tyranny, and Schmitt's riposte: the second edition of 1967
Four years after the private printing of Schmitt's pamphlet and its circulation among his students and friends, The Tyranny of Values became an item of note and controversy spread across the broadsheet pages of the Frankfurter Allgemeine Zeitung. The philosopher Karl Löwith, who emigrated from Nazi Germany following forced removal from university employment under Nazi racial legislation, took to print to criticize Schmitt's pamphlet and the unrepentant National Socialism and persistent anti-Jewish racism of which Löwith considered Schmitt's work to be exemplary.Footnote 71
The ostensible occasion of Löwith's article was the hundredth anniversary of Max Weber's birth in 1864.Footnote 72 In the article “Max Weber and Carl Schmitt,” Löwith wastes little time in offering the view that Max Weber is to be considered an intellectual trailblazer of Hitlerism—and this both positively and negatively. Though Weber died in 1920, Löwith stresses that in his estimation Weber “positively paved the way to the authoritarian and dictatorial Führer-state [Führerstaat] via his depictions of the irrationally ‘charismatic’ leadership [Führerschaft] and the ‘mechanized-leader democracy’ [Führerdemokratie mit Maschine] and negatively via the intentional contentlessness, via that which is formal in his political ethos, the last instance of which was only the decisive choice of one value imposition [Wertsetzung] amongst others, it didn't matter which one.”Footnote 73 While crediting Weber, long dead in 1933, with positively blazing the path for the “dictatorial Führerstaat” and negatively offering a formal political ethos that did nothing to stop it, Löwith's assessment of Carl Schmitt in this same article was less resonantly imbued with esteem. Schmitt, in Löwith's understanding, was to be seen as “the theoretician of the transition from the parliamentary democracy of the national-liberal party state to the authoritarian and dictatorial democracy of the total state.”Footnote 74 In this last regard, Löwith added, Schmitt was indicative of the development of the German state and of German society itself.Footnote 75
Here, Löwith emphasized especially Schmitt's proximity to Nazi racial discourse during the Third Reich and Schmitt's appropriation of the notion of racial “typological equality” (Gleichartigkeit), which was wielded by the Nazis to isolate and persecute Jews as persons who were racially “typologically foreign” (Artfremd).Footnote 76 From noting Schmitt's deployment of Nazi racial ideology, Löwith turned sharply to Schmitt's Tyranny of Values. “From Weber's thesis of one's own decision for this or that final value,” Löwith wrote citing the privately printed edition of The Tyranny of Values, “Schmitt has recently drawn the conclusion that this ‘tyranny’ of mutually conflicting, because mutually exclusive, ‘values’ would lead to a bellum omnium contra omnes, in comparison with which the murderous natural condition of the state philosophy of Thomas Hobbes is an idyll.”Footnote 77 In contrast to Weber's notion of responsibility, Löwith claimed, “Schmitt's dictatorial decisionism” amounts to a kind of occasionalism, not untinged with opportunism. Löwith thereby repeated his famous critique of Schmitt during the National Socialist era that Schmitt was an “occasional decisionist,”Footnote 78 redeployed on the occasion of his reading of The Tyranny of Values, to the reading public of the Frankfurter Allgemeine Zeitung (FAZ).
Schmitt did not take kindly to Löwith's critique in the pages of the Frankfurter Allgemeine. His reply to Löwith took the form of an introduction to a public reprinting of his Tyranny pamphlet, this time in the 1967 Festschrift for his student Ernst Forsthoff, the former Nazi propagandist at whose seminar Schmitt delivered the original lecture version of what became The Tyranny of Values. Closing out this 1967 introduction to the Tyranny of Values, Schmitt took indirect aim at Löwith. Noting that his pamphlet had been published in Spanish translation in Franco's Spain and approvingly cited by Julien Freund in the latter's French translations of Max Weber's Wissenschaftslehre, Schmitt lamented, “In Germany, a peculiar fate befell the private printing.” Without mentioning Löwith by name but citing precisely the issue number of the FAZ in which Löwith's article appeared, Schmitt wrote of his privately printed pamphlet,
After four years it was suddenly seized upon and drawn into a polemical confrontation via a world paper.[Footnote 79] That which was expressed within a circle of roughly 40 auditors and then as a private printing for at most 200 readers—always within the frame of a discussion about virtue and value in state theory—now saw itself in the loudspeaker cited before a forum of a wholly other kind [ein ganz anders geartetes Forum] of some hundreds of thousands of readers, without these readers receiving, even approximately, any information about the meaning and bearing of the discussion.Footnote 80
Schmitt's use of ganz anders geartetes in this context is not wholly free of the connotations of this phrase in Nazi racial theory and Nazi law. Given that the author of the FAZ piece was Karl Löwith, a longtime critic of Schmitt who was forced into exile by Nazi racial laws, and given that the 1967 edition of Tyranny appeared in a Festschrift for a well-known Nazi lawyer and propagandist, this allusion may not be wholly unintentional on Schmitt's part. Schmitt uses the phrase at the end of his pamphlet Staat, Bewegung, Volk to refer to lawyers of Jewish ancestry and to advocate their political, professional and existential exclusion from the Gefolgschaft of Schmitt's Führer.Footnote 81 In that Hitlerian work, published in successive editions in 1933, 1934 and 1935, Schmitt wrote of the Jews he wished to exclude from Hitlerian Germany, “One who is typologically foreign [Ein Artfremder] may gesture so critically and exert himself so sharply, may read books and write books, he thinks and understands otherwise, because he is typologically other [anders geartet ist] and remains in every decisive trajectory of thought within the existential conditions of his type.”Footnote 82 It is with homogeneity and typological equality (Artgleichheit) that the Schmitt of 1933–5 circumscribed the followership of his Führer and conceptually it was in exclusion of the typologically other (those who are anders geartet, in Schmitt's terms) that Schmitt excluded and persecuted Jews.
While Schmitt had no hesitation deploying the Nazi racial discourse of artgleich, andersartig, anders geartet, and artfremd in public and private to discriminatory and murderous ends during the Third Reich, as the historians Andreas Koenen, Ingo Müller, and Raphael Gross have amply shown,Footnote 83 Schmitt also had no qualms deploying this same vocabulary in public in the 1967 second edition of The Tyranny of Values. Schmitt's riposte to Löwith amounted to applying Nazi racial discourse of being ganz anders geartet (wholly typologically foreign) to both Löwith and the broader readership of the Frankfurter Allgemeine in the late 1960s. In the late 1960s, Carl Schmitt was redeploying thinly veiled Nazi racial discourse in public, precisely against those who had been its unfortunate victims under Nazism itself. In this regard, Schmitt's use of this language is the mannered or public face of what Schmitt privately professed in his diaries in the postwar period, in which Schmitt asserted that “Jews always remain Jews,” adding to this Schmitt's view that “[p]recisely the assimilated Jew is the true enemy. There is no purpose at all in showing the speeches of the Elders of Zion to be false.”Footnote 84
Beyond using the occasion of the reprinting of his pamphlet to insult Karl Löwith with Nazi racial discourse, Carl Schmitt saw fit to expand his pamphlet via this introduction with the aim of treating other themes. Not least, Schmitt used the 1967 introduction to The Tyranny of Values to give voice to his opinions on the Second Vatican Council. The “tyranny” of the language of value is present, Schmitt wrote, “in all domains of our social being” no less than it “documents itself even in the official language of the highest spheres.”Footnote 85
For Schmitt, “the official language of the highest spheres” was the language of the Church.Footnote 86 And Schmitt proceeded to cite what he took to be examples of the execrable language of value from examples drawn from the papal encyclicals and conciliar declarations of Vatican II. “This is shown,” Schmitt wrote,
in the translations of the social encyclical of Pope John XXIII, Mater et Magistra of 15 May 1961. Here the Latin word Bonum Footnote 87 (good) is rendered in the Italian translation with valore, in German with Wert (value). Often this linguistic transformation is justified with the claim that the Latin termini could no longer follow the tempo of the modern industrial technological development. In the declaration of the Second Vatican Council concerning the “Relation of the Church to Non-Christian Religions”Footnote 88 on October 28, 1965, after the bona spiritualia et moralia, the valores socio-culturales are named—which can also be found among those who profess non-Christian religions—and ought to be recognized, defended, and advanced.Footnote 89
The language of value in these Vatican II encyclicals and conciliar declarations, Schmitt stressed, exhibit a “transformation in values, a general trans-valuation.”Footnote 90 What is most striking in Schmitt's examples is his choice of only the encyclical Mater et Magistra and the declaration Nostra aetate (on the relation of the Church to non-Christian religions) to illustrate the perfidiousness of the language of value. For these were precisely the documents of the Second Vatican Council which altered the Church's stance towards a greater tolerance of Islam and Muslims and of Judaism and Jews. It was precisely these encyclicals and declarations on which Schmitt expressed his public dubia of the Second Vatican Council.
Schmitt had not historically shown great sympathy towards a stance of toleration with regard to Judaism and Islam.Footnote 91 As recently as 1950 in Der Nomos der Erde, Schmitt had emphasized that the Catholic Church had defined itself historically by positing Jews and Muslims as the hostes perpetui of the Church.Footnote 92 For Schmitt, relations of enmity are definitive for one's own self-understanding.Footnote 93 On this view, a person or institution defines itself not least in defining itself against an explicit, public enemy. In renouncing one's explicit and public enemies, on this view, one ceases to be what one is. On Schmitt's view, in renouncing Jews and Muslims as hostes perpetui in Mater et Magistra and Nostra Aetate, the Catholic Church relinquished its historical identity and, in a certain sense, dissolved itself. Schmitt's opposition to Vatican II was thus not grounded upon a nostalgia-infused elegy for the Latin Mass. Rather, Schmitt's critique of Vatican II was leveled precisely against those papal encyclicals and decretals that withdrew the Church from its historic relation of “perpetual enmity” toward Muslims and Jews.
In 1979, Carl Schmitt's The Tyranny of Values found republication in the form of a debate with Lutheran theologians and publicists, printed by the Lutheran Publishing House (Lutherisches Verlagshaus) in Hamburg.Footnote 94 In that later version, both Schmitt's earlier defense of Harlan and his later polemics against Löwith and the Second Vatican Council were reprinted, with some typographical errors, yet in substance and textual argument unaltered. In all the editions of The Tyranny of Values, Schmitt opts for his favored rhetorical strategy, the wielding of the weapons and testimony of one's opponent against those opponents themselves. In redescribing value philosophy itself as tyrannical, Schmitt is well known to be appropriating the language of Hartmann, the language of value theory, against that theory itself.Footnote 95 Yet, in so doing, Schmitt is also applying the language of tyranny to those powers that wield the language of value to their own ends. Schmitt, who refrained from applying the language of tyranny to the tyrant under whom he lived, applies the term “tyranny” to the jurisprudence of the Federal Constitutional Court, the German Federal Republic more broadly, and the American and British occupying forces in postwar Germany, whose puppets he took the Federal Republic and its institutions to be.Footnote 96 If the old adage holds that under a tyrant one can only call the tyrant a prince, yet while under a republic or when speaking of republics one can call out a tyrant unabashedly, Schmitt may be seen to unintentionally validate this adage. For Schmitt, it is the republics that are tyrannical whilst he praises his tyrants as nothing less than divine.Footnote 97
V. Conclusion
A close historical engagement with Carl Schmitt's The Tyranny of Values shows us something not only about Schmitt's thought, but also about the rhetoric and cast of Nazi polemic in German public and semi-public discourse after 1945. In the aftermath of the Second World War, Schmitt advocated wholesale amnesty for all Nazi war criminals in a series of anonymous op-eds and newspaper articles, a set of writings which find their theoretical equivalent in The Tyranny of Values. Moreover, this work displays Schmitt's repeated use of the phraseology of Nazi racial theory to attack his critics of Jewish origin, repeated in print in the 1960s and 1970s. Schmitt's post-Second World War racism loses none of its venom for being mannered racism and for expressing itself in phraseology that is easily overlooked, just as his apologetics for the Shoah and for Nazi war criminals lose nothing in bile from their anonymous and indirect articulation. In this regard, Schmitt's Tyranny is a window into a chapter of the history of Nazism in the aftermath of the Second World War that still remains to be written.
Acknowledgments
For helpful comments on earlier versions of the present article, the author is thankful to Nicholas Baer, Russell Berman, Greg Conti, Jeremy Dell, Stefan Eich, Kinch Hoekstra, Adeel Hussain, Sarah Johnson, Duncan Kelly, Adam Lebovitz, Timothy Luke, Victoria Kahn, Clara Maier, John P. McCormick, Svetozar Minkov, David Pan, Lucia Rubinelli, Martin Ruehl, Luna Sabastian, Joshua Smeltzer, Blake Smith, Daniel Steinmetz-Jenkins, Matthew Specter, Shannon Stimson, Nathan Tarcov, Lars Vinx, Joanna Williamson, the anonymous reviewer for Telos Press and the four anonymous reviewers for Modern Intellectual History. The author is particularly grateful to Duncan Kelly and the editors of Modern Intellectual History for their patience and intellectual generosity. An earlier version of this article was intended as the first half of the introduction to Carl Schmitt, The Tyranny of Values and Other Texts, ed. Russell A. Berman and Samuel Garrett Zeitlin (Candor, NY: Telos Press Publishing, 2018).
Open access
