'Hermann Heller’s critique of liberalism' by Michael A. Wilkinson in (2024) Jurisprudence comments
Hermann Heller’s interwar polemic against the authoritarian liberals governing late Weimar just before the Nazi seizure of power has recently received significant attention. This should come as no surprise. The decade following the financial crisis of 2008 offered many echoes of the 1930s, notably with the exercise of executive and emergency powers in defence of economic liberalism and market rationality. And, as in the 1930s, there has also been a backlash against austerity and against liberalism itself, just as Heller had predicted in his own time.
Heller’s critique of liberalism may seem intriguing, but essentially conjunctural, limited to an exceptional period, and from which we should be reluctant to draw more general conclusions. Similarly, it might be argued, the current doubts over neoliberalism should not call into question the broader commitment to liberal constitutionalism, but can and should be bracketed, so as not to throw out the baby of ‘political liberalism’ with the ‘neoliberal’ bathwater. The reluctance to draw general conclusions from Heller’s critique of authoritarian liberalism might be reinforced when it is noted that the target of his polemic was not only the Presidential Cabinets ruling Weimar by diktat and decree, but also the jurist who was advising them, Carl Schmitt. If this appears to call into doubt the orthodox view of Carl Schmitt as a thoroughgoing anti-liberal, Schmitt’s embrace of the ‘feudalist clique’ that effectively ‘put Hitler into power’ might be thought to have been entirely opportunistic.
Schmitt’s attitude towards liberalism was more complicated than commonly presented. As a matter of political conviction, he viewed liberal relativism with disdain. But as a matter of economic orientation, he was ambivalent and even defensive of it. His attachment to the practice and ideology of economic liberalism – particularly the belief in protecting private property by a strong state – predated the turbulence of late Weimar. It was driven, and accentuated, by a fear of democracy and the parliamentary (as well as revolutionary) route to socialism. Schmitt was initially drawn to the liberal aspects of Weimar constitutionalism to the extent they might obstruct this route and help to preserve the status quo.
Does Heller’s critique of liberalism mirror this view of Schmitt’s embrace; was it entirely conjunctural, shallow, and bracketed to the economic variety? The publication in English translation of Heller’s 1927 book Sovereignty: A Contribution to the Theory of Public and International Law (‘Sovereignty’), provided a renewed opportunity to tackle this question, as it presented a fuller account of Heller’s views on liberalism. In Sovereignty, the closest Heller comes to a decisive claim – in what is a short, abstract, and not always entirely lucid text –, is that, ultimately, sovereignty is an expression of the collective will, the ‘general will’ of the people. In defending a resolutely political conception of sovereignty, Heller tried to restore a conception of the state explicitly traced back to Rousseau via Hegel, and which he thought was in danger of being eroded, particularly by liberal legal theorists such as Hans Kelsen.
But Heller was also keenly aware, if less explicit, about the knot in this Rousseauvian conception, that is, the difficulty in forming a ‘general will’ in conditions of social heterogeneity, extreme levels of inequality and, in Heller’s own terms, the presence of class conflict. If it is the Rousseau of The Social Contract that Heller tried to retrieve in Sovereignty, it is the Rousseau of the Second Discourse, the Discourse on the Origins of Inequality, that captures the tension in Heller’s comprehensive worldview. Both ‘Rousseaus’ can be used to target liberalism, but in distinct ways, the Social Contract by insisting on a conception of the common good that transcends individual interest and the Second Discourse by critiquing the egoism of modern man and his inflamed sense of amour propre in commercial society. It is only in combination that we can make full sense of Heller’s constitutional theory, integrating his abstract reflections on sovereignty with his situational commentary on the fate of the Weimar Republic, where his substantive views on the need for social equality – alluded to but underdeveloped in Sovereignty – are clearly expressed.
Just as Rousseau’s two discourses sit uneasily with one another, Heller faces a bind. On the one hand, Heller argues that social homogeneity is required for popular sovereignty to channel a genuinely democratic expression of the general will. Unlike some of the radicals on his left, Heller defended the possibility of achieving this goal in the constitutional circumstances of the Weimar Republic. As such, he belonged to a socialist tradition that is often labelled ‘reformist’ rather than revolutionary, heir to figures such as Ferdinand Lassalle and Eduard Bernstein, founding fathers of German social democracy. But Heller also notes that such a formation of a general will was practically improbable in the society of his day due to its social condition.
If this all suggests that Heller’s critique of liberalism was situational and contingent, a close reading of Sovereignty shows that Heller was an unforgiving critic of liberalism in general. In that work, Heller offers a complete rejection of the liberal worldview, from a philosophical and historical perspective as well as a political and economic one. This is clear not only by how much he seeks to retrieve Rousseau and Hegel, but how often he takes aim at Kelsen – at Kelsen’s rationalism, legalism, normativism, at his basic errors of jurisprudential methodology, and, above all, at his liberalism.
Even though fragile in the concrete political order of the Weimar Republic, Heller viewed liberalism as intellectually strong in Germany, and as responsible for the erosion of the idea of popular sovereignty. This loss mattered not because it buried an interesting relic in the history of ideas but because it unsettled the ground on which any legitimate polity rests. In contemporary vernacular, liberalism had ‘hollowed out’ the state, undermining the relationship between rulers and ruled in its insistence on individualism and private rights.
Although defending the Weimar Republic at every step until the last, Heller equivocated in his prognosis of the likely consequences of its deteriorating social situation. In the conjunctural politics of late Weimar, Heller had initially advocated a ‘policy of toleration’ towards Chancellor Brüning’s authoritarian regime, neglecting his own democratic convictions for fear of the greater evil of National Socialism. It was only at the end point of the Weimar Republic, in one of his final publications, that Heller changed his position, identifying the regime as based on a capitalist economy, and predicting the bourgeoisie would turn to increasingly authoritarian solutions to maintain order. Heller went into exile after the Nazi seizure of power in January 1933 and died in Madrid in November of that year. But he had already predicted that the bourgeoisie would turn to a cult of violence and an irrational appeal to a strong leader, reducing the masses to a ‘radical nothing’. With the Nazi seizure of power, authoritarian liberalism would be replaced by a movement of totalitarian dictatorship that superseded ideas of the state and of sovereignty altogether.
This fuller overview enables us to bring together into one arc Heller’s critique of liberalism in the immediate conjuncture and over the long durée. For Heller, liberalism’s tendency to move towards authoritarianism was not contingent, it was profound: both warp and weft of the erosion and ultimate breakdown of the democratic project of popular sovereignty across the preceding century.
The paper proceeds as follows. First, Heller’s attempt to recover the concept of popular sovereignty is laid out, with Heller arguing for its juristic significance against both Kelsen’s legal normativism and Schmitt’s political decisionism. Heller insists on sovereignty’s connection to the ‘general will’ of the people, in the fashion of Rousseau and Hegel, and argues that in a democracy this must involve a dialectical formation of political unity and material equality. In a second part, we turn to the concrete political and constitutional context, with Heller refusing the revolutionary path to socialism urged by those on his left, contending that equality could be achieved in the ‘neutral state’ of the Weimar Republic, and even advocating a policy of toleration to the suspension of parliamentary democracy. In part three, we then examine a shift in Heller’s diagnosis. Towards the end of the Republic (and of his own life), Heller identifies Weimar as a capitalist state and predicts that the bourgeoisie will increasingly turn to authoritarianism and ultimately to the fascist movement to protect its material interests, a transition that would bring an end to the Rousseau-Hegel tradition of state theory and sovereignty.
