Carl Schmitt’s Concept of the Political, one of the most influential pieces ever penned by a legal scholar. It engages with it to advance a contemporary theory of public law. Although Schmitt’s text has, as will be demonstrated, many fallacies, it also holds seminal innovations that are useful to contemporary thought. One such innovation is Schmitt’s way to reconceive the conceptual web that hitherto has been anchored in the state. However, this text will replace his concept of the political by the concept of public authority, advancing an idea of public law that enables, guides and frames the exercise of public authority, whether domestic, international, or supranational. Moreover, on the touchstone of Schmitt’s text, standards for assessing theories of public law are developed.The author comments
The task set to this contribution is “Thinking the State through the International”, by engaging with theories that conceptualize “the state in relation to others”, rather than “in isolation”. This stands in a broader project of linking legal scholarship, history, and political theory to better address “the contemporary international”; a search for new approaches to the history of international law, internationalized political theory, and legal thought. Concentrating on the state should help in gauging the promises, challenges, and pitfalls that possible linkages might produce.
I will discharge my task in a hermeneutic mode, in the tradition of Geisteswissenschaft, which is close to ‘interpretive social science’ in the Anglo-American tradition. At its core, Geisteswissenschaft aims at understanding the present through interpreting artefacts of the past. Its method suggests engaging closely with texts that provide a reference for contemporary thinking in light of present-day issues.
In this regard, a natural candidate seems to be Kant’s Perpetual Peace, probably the most important reference for those who conceptualize the state within a universal framework to secure peace, human rights and some basic welfare globally. Although feeling normatively committed Kant’s universalist project, I decided to develop my contribution from the opposite side, from Carl Schmitt’s “The Concept of the Political” (CoP). I will do so in a direct dialogue with the 1932 text, little mediated by the secondary literature, which in itself is impressive in volume, depth, and diversity. I will propose only one of several possible readings, attuned to the guiding question. My reading will not be validated by the confrontation with other readings; this seriously limits my paper’s scholarly value. Its standard for being scholarly is to be able to provide a reasoned interpretation, in sync with the seminar’s topic.
What justifies the choice of CoP? I do not engage with those doubts that stem from Schmitt’s association with authoritarianism in general and National Socialism in particular. It is not because those doubts are pointless, but too important for any cursory treatment. Ultimately, my position is that normative repulsion should not stand in the way of analyzing arguments. Irrespective of its political aims, CoP can be studied as a scholarly contribution.
A first reason to engage with CoP is that it defines the international, the relation to others, as the kernel to think, to conceptualize the state. This is an extremely agonistic relation. Schmitt thinks the state through the international as a relationship of conflict, not through international law as an order of cooperation. Of course, many theories focus on conflict to explain social dynamics. What is specific with Schmitt is the radicalization. A state’s readiness to fight war against another state becomes the vanishing point. If CoP also considers cooperation, friendship, it is only in order to fight better. CoP being a 20th century version of the most ancient tradition in understanding the international, discussing it implies engaging with a thick current of political thought.
Second, CoP is not just one of the many 20th century versions of particularism, but its most visible text with a spectacular radiance. Perhaps no other book of the 20th century which presents itself as legal scholarship has had a similar sway. It had a deep impact on legal thought, lawmaking and legal practice in many countries. Moreover, its ripples can be felt far beyond the legal field: many political theorists, political scientists, historians, literary critics, and novelists have fallen under its spell. Its friend-enemy-scheme even made it to general public discourse. This success suggests that CoP articulates something deeply to be reckoned with. Brushing it aside for the failures of its author does not make this something go away. Any serious thought on how to think the state in relation to others needs to engage with this something, and CoP provides a splendid way to do so.
Third, CoP provides the basis for a thick interweaving of political thought, legal analysis and historical narratives, in particular Schmitt’s narrative of ‘classical’ international law, for which he later coined the term Jus Publicum Europaeum. Schmitt provides a gripping example for our seminar’s overall topic: the astounding energy a fusion of political thought and international legal history can generate. If a political theorem succeeds in portraying itself as a key for understanding the historical path of a social phenomenon, it gathers enormous strength. Hegel, Marx or Schmitt had a greater impact than Fichte, Kelsen or Rawls. Yet, there are the costs and fallacies of such a fusion: a selectivity that may border on being ideological and, in today’s terms, on academic malpractice.
Fourth, CoP provides a way of overcoming the fixation of thinking the international through the state, a core concern currently in the history of international law as in political thought. CoP does so by switching the founding concept – ‘the political’ rather than the ‘state’ – and then by rearranging the conceptual field according to the core meaning of the central notion, the friend-enemy distinction. This shows how a fixation on one concept can be overcome. However, the concept of ‘authority’ might be more fruitful than ‘the political’. As will be explained, international public authority might be a better concept in overcoming that fixation and in particular, for reappraising institutionalized power relations beyond the state.In asking "What to take from CoP for today’s questions" von Bogdandy concludes
CoP’s success validates a sub-discipline in legal scholarship where it meets political thought and history, as other disciplines. CoP suggests a broad focus of that sub-discipline, going beyond the ‘state’ or ‘the constitution’, by addressing the broader phenomenon of ‘political power’. This provides the disciplinary setting for theory building on public law with a view to systematizing, interpreting and critizing legal phenomena of public power, irrespective of being international, domestic, or supranational, in line with the project of this book.
To this end, this sub-discipline, as in CoP, allows eclectic and syncretistic thinking. This facilitates engaging with new historical narratives of international law and new approaches to political thought, which are, as CoP shows, of particular potency for advancing legal thinking. The very success of CoP validates attempts at bringing together political thought and history with this end. Though the conventional standards of political theory as a discipline on the one side and those for historical research as a discipline on the other are worlds apart, the lenient standards of this sub-discipline and its openness towards eclecticism and syncretism make linkages and even fusions possible.
The leniency must always be kept in mind: Schmitt’s CoP shows that the ideological temptation is particularly strong when fusions of political theory and history are produced. Such fusions can generate explosive, dangerous thinking, with much potential, but also with a dark side as Schmitt proves. It must be remembered that any truth claim under this sub- discipline depends on how well it fares in systematizing, interpreting and criticizing legal phenomena. Moreover, leniency does not imply that anything goes. Any contribution faces, beyond the standard of heuristic potency, standards such as traceability, coherence, dialogical engagement, and accuracy.
With CoP, the state needs to be seen through the international, though not in Schmittian one- sidedness. Indeed, the international is to be seen through the state. The international depends on the domestic, as the domestic depends on the international. The future of international law is domestic (A.-M. Slaughter) as the future of domestic law is international (M. Goldmann). The unity of public law needs to be conceived without negating the difference of various parts, even though they might not be as far apart as CoP claims. If this is the future, history has its work cut out as does political theory, as all its basic concepts have to be reshaped.
To advance on this path, the concepts of public law cannot receive their ultimate meaning any more from the state as the vanishing point. CoP shows, from its very first sentence, how to rearrange a conceptual field, though the concrete proposal, Schmitt’s concept of the political, does not convince me. On a more abstract note, however, it provides a clue as it points to a theory on public authority. Recent research shows that the concept of authority might indeed provide the vanishing point for a reconstruction of public law that embraces domestic, supranational and international legal phenomena.
With a legal concept of public authority, we can gauge our distance to the time when Schmitt penned CoP, and hence to his work. The concept of public authority suggest an idea of public law that enables, guides and constrains activities for the common good. This objective, however vague it may be, entails a specific need of justification, which marks the core difference with private law. Public law ultimately relates to a public. Such a public exists today also as a global one. Schmitt’s CoP shows that this observation today cannot be brushed aside. Something deep has changed. Even though the world view that CoP articulates is well alive and kicking, no particularist would deny Kant’s universalist core dictum that a violation in one spot of the world might be felt all over. But to account for that change, CoP is of great help.