Over at Opinio Juris, my co-blogger Kevin Jon Heller has a post on the German political theorist Carl Schmitt and the history behind his brush with a Nuremberg prosecution at the end of the Second World War. It is drawn from research for Kevin’s book on the Nuremberg trials; given the interest that law professors and others have taken in Schmitt’s work over the years, I thought the VC audience would find it interesting. Kevin has done very interesting research into this whole episode at Nuremberg:
I am particularly fascinated by how close Carl Schmitt, the political theorist who has influenced both the right and the left, came to being a defendant in one of the trials. After Schmitt joined the Nazi Party in 1933, he had been appointed the head of the Union of National-Socialist Jurists and had written a number of pro-Nazi and anti-Semitic articles for the self-published German Jurists’ Newspaper. Schmitt had a falling-out with the SS in 1937 and resigned his position as Reich Professional Group Leader, although he was able to keep his professorship at the University of Berlin because Goering protected him.
As I detail in the book, the OCC submitted three different trial programs to the US’s Occupational Military Government (OMGUS): on 14 March 1947, 20 May 1947, and 4 September 1947. Schmittt was listed in the first program as a possible defendant in what the OCC called the “Propaganda and Education case.” … At some point between 14 March and 20 May, when the OCC submitted its second trial program, Taylor’s staff decided not to prosecute Schmitt. The second trial program no longer includes Schmitt as a possible defendant.
Kevin cites to an article in the social/critical theory journal Telos, of which I was long an editorial associate, along with the late great founding editor Paul Piccone, and an astonishingly long list of people you might not have expected to have done a stint with a New Left, then Post New Left, then sometimes left and sometimes right editorial board. Fred Siegel, Seyla Benhabib, Jean Bethke Elshtain, Jean Cohen, Andrew Arato, David Pan, Joe McCahery Moishe Gonzales, it’s a really, really long list. (Once in a while it has done important articles on critical jurisprudence – I am proud to say that as an editor in the 1980s, I commissioned a piece from Martha Minow, “Law Turning Outward,” that bears re-reading today, if only if were online!) It is subscription only, dense, difficult, highly abstract and theoretical reading, within a sometimes alien critical theory tradition that is part homegrown and part European intellectual inheritance – and over the course of forty years, some of the best social theory in the world.
(One of these days I’ll talk about why social theory is both important and ripe for revival. This, despite the general collapse of social theory into mere identity politics in the academy, thus driving people interested in rigorous thinking into more technically rigorous, but also more “surface” fields, such as economics, and the imitation of economics in other fields. Maybe I’ll ask the current Telos editor, Russell Berman, if he’d like to take a crack at explaining why it matters.)
As to Schmitt, well, Telos was largely responsible for introducing him to the American academic community, translating and commenting on much of Schmitt’s output. Schmitt continues to resonate today – the idea of emergency, after 9/11, for example, attracted much discussion. In Europe, Schmitt overcame his past as a Nazi collaborator – rather, it seems never to have been much of an issue – and developed a very wide following across ideological boundaries, and considerable influence on the political theory of the Continent. One reason I first read Schmitt was that it was clear to me I couldn’t understand Continental political theory, including Habermas and many others, without understanding Schmitt; he was a crucial part of the background discussion and intellectual assumptions over decades.
In the United States, the invocation of Schmitt always raises at least as a backdrop the question of Schmitt as a Nazi party member and full-on collaborator over important years. My own view is that Schmitt was not a Nazi, far from it – in the ways in which Nazism was truly radical, Schmitt was a reactionary. By all measures, a morally repellent character who saw where things were going in Germany and hopped aboard, and then saw where they were going and hopped off again. But not a Nazi in his thinking or, really, sympathies despite, true, his long list of public intellectual credentials during historically crucial years.
The truth is, as an intellectual matter, I think Schmitt has long since run out of steam in terms of what he offers to American political and social theory. This is possibly because I was intimately involved at Telos in the Schmitt revival from the beginning, felt like I absorbed what seemed important to me, and moved on by the 90s. For example, the notion of emergency in Schmitt is both deeper but more alien to American political thought than, I suspect, many American theorists think – they really mean something that just is regular old consequentialism pushed hard, whereas for Schmitt, such notions are part of a far deeper and more committed system. And although I once wrote a paper not long after 9/11 with a section carrying the very Schmittian title, “Criminals and Enemies,” what I meant by that had little to do with Schmitt and I was amazed at how quickly it was cast in Schmittian terms. Far, far more important than Schmitt in contemporary American social theory – if there were such a thing outside the cul-de-sac of identity politics – is the revival of New Class theory in the American contempory context, and a theory of elites.
lgm says:
I respectfully suggest that the case of Carl Schmitt should give all of us great pause. The guy actually was a NAZI (no Godwin’s law here). He understood what their program was (or would have had he done his due diligence) and chose to actively help them achieve it. The most important question about his work should be:
The Wikipedia article says that modern neo-conservatives are influenced by Schmitt. Maybe that should give them pause. Maybe it should give us pause when thinking about modern neo-conservatives (lgm coming dangerously close to Godwin here).
Remember, the guy was a NAZI. He is not a positive “influence”. He is a negative warning — look at what he thought, and think something else.
January 12, 2010, 4:52 pmCrunchy Frog says:
I’ll buy that when some neocon comes out publicly and states that he was influenced by Schmitt. I’d bet the mortgage that article was not written by anyone in the neoconservative movement.
I have the same reaction when liberals (or even conservatives, but not so much) try to tell libertarians what they should believe.
January 12, 2010, 5:48 pmjcm says:
In the book Dictatorship, Scmitt portrait the democratic State of Siege. It was heavily influenced by the Civil War example.He abbandoned that theory on his Work on Political Theology . In the same book he exposed his enemy- friend theory of politics
January 12, 2010, 5:50 pmHis book On Hobbes is the most anti-Semitic of his works and was written after his fall of grace with SS. The terminology he used in his book ” The Defender of the Constitution” , an answer to the decision by the Weimar Supreme Court based on Lochner, is the standard in hispanic law world. Like his classification of Judicial Review as diffused , the decentralized american system, , and concentrate , the Austrian kelsenian model based
His notion of institutional guarantee used for local autonomy and property is also commonly quoted by the Spain ´s Constitutional Court.
The Italian Constitution, the model of the Spanish and some Latin-American constitutions ( not in this point) makes the President , the Defender of the Constitution like Schmitt wanted. The grandfather of an american ambassador to the UN was among the drafter of the italian Constitution
He was a nazi, but it does not make him wrong as a lawyer . Unless you fail to the ad personam fallacy. Most of his work predated the Nazis. I dont agree with him . I think Kelsen who answered to him in his work Who must be the Defender of The Constitution was right. But still he is revered in Europe
Konrad Larentz who saw Hitler as the incarnation of Right is also widely read in Spain. He wrote a n acclaimed book on… Ethics
Its the same in many fields: Bertol Brecht throw a party t fund the Nazi party in 19933 at.. New York
The editor of the most important book on anatomy was a jew who supported Hitler.
Jurgen is the best german writer of the xx century and was part of the occupation army in France
Heissemberg , tried to stole information about the atomic bomb from Nils Bohrs. And is an important physics in the level of Plank or Einstein.
None of them was some one trying to be obscure to seem deep like Heiddeger
I dont see anyone putting out of the libraries the travel companions who see no evil in Stalin or Lenin.
jcm says:
BTw
January 12, 2010, 5:53 pmHayek see himself more close to Donoso Cortes to many liberals, in his book Law, Liberty and Legislation. Donoso Cortes in a parliamentary discourse after the 1848 revolution in Europe established the base of all the reactionary movement. That work is the foundation of the Schmitt work on theological politics.
Martinned says:
Well yes, but in the mid-30s, years before the Wannsee conference and the Holocaust. I’d agree with the OP: more reactionary than anything else.
BTW, speaking of state of emergency: where’s the post on John Yoo on Jon Stewart yesterday? (Money quote: “I’d expect you’d probably spend more time on a car lease agreement than we do on treaties.”)
January 12, 2010, 6:13 pmlgm says:
The book Mein Kampf was published in 1926. After that, there are no excuses.
January 12, 2010, 6:56 pmMichael Ejercito says:
It is difficult to tell if he would have been prosecuted had he stayed. It would depend on if he would have been substantially involved with Germany’s war crimes.
January 12, 2010, 7:01 pmMartinned says:
Ever read it?
January 12, 2010, 7:54 pmSomeone who reads that thing and still becomes a Nazi certainly has a lot to answer for. That said, many of the worst Nazi crimes were only foreshadowed to a limited extent. It was certainly possible to read Mein Kampf as advocating something more like Mussolini’s Italy.
Martinned says:
Whether he would have been prosecuted is one question. The more interesting thing is perhaps whether he would have committed any serious crimes by staying.
January 12, 2010, 7:56 pmFrater Plotter says:
Arguing that someone is not a Nazi should end after you concede that they, you know, joined the party.
January 13, 2010, 9:31 amlgm says:
But when Fascists get control, there’s no stopping them acting like Nazis. We should not be learning from Schmitt, we should study him as an example of how not to think. It’s the same reason we don’t study Faust as a model negotiator.
January 13, 2010, 10:32 amCJColucci says:
I’ve been waiting for the John Yoo references. I’m not sure Martinned’s counts.
January 13, 2010, 10:48 ammethodact says:
This might be your best post since the one on the Encyclical Letter, “CARITAS IN VERITATE”.
January 15, 2010, 3:12 pm