Carl Schmitt's Critique of Liberal Constitutionalism

Author(s): William E. Scheuerman

Source: The Review of Politics, Vol. 58, No. 2 (Spring, 1996), pp. 299-322
Published by: Cambridge University Press for the University of Notre Dame du lac on behalf
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 Carl Schmitt's Critique of Liberal
Constitutionalism
William E. Scheuerman

Despite growing interest in the ideas of Carl Schmitt, twentieth-century

Germany's premier right-wing authoritarian political thinker, most American
scholars continue to downplay the centrality of Schmitt's legal thinking to his
overall theory. This article attempts to overcome this lacuna by critically
scrutinizing Schmitt's influential critique of liberal constitutionalism. However
provocative, Schmitt's critique ultimately proves untenable because (1) it relies
on an overly selective, even caricatured reading of the history of liberal
jurisprudence and (2) it reproduces the most worrisome methodological claims
of Schmitt's main intellectual opponent, Hans Kelsen's legal positivism.

Despite growing interest in the ideas of Carl Schmitt,

twentieth-century Germany's most influential right-wing
authoritarian political thinker, most American scholars continue
to downplay the significance of Schmitt's contributions to legal
scholarship. The fact that Schmitt's controversial ideas about the
essence of political experience, sovereignty, and parliamentary
government ultimately derive from a more fundamental critique
of liberal legalism is repeatedly obscured.1 If we finally are to
provide a balanced picture of Schmitt's views, we very much

1. This is one flaw of the two major English-language studies of Schmitt:

Joseph Bendersky,CarlSchmitt:TheoristfortheReich(Princeton:PrincetonUniver-
sity, 1983);George Schwab, The Challengeof the Exception:An Introductionto the
Ideasof CarlSchmitt(New York:Greenwood, 1989). I also believe that these two
works are apologetic in their treatmentsof Schmitt'srelationshipto the Nazis. See
my: "TheFascismof CarlSchmitt:A Response to George Schwab,"GermanPolitics
and Society29 (1993). For one notable exception to the widespread tendency to
underplay Schmitt's legal concerns: Rune Slagstad, "LiberalConstitutionalism
and its Critics:Carl Schmitt and Max Weber,"in Constitutionalism and Its Critics,
ed. Jon Elster and Rune Slagstad (New York:Cambridge University Press, 1988).
The German-languageliteratureon Schmitt'slegal theory is far more impressive;
let me just mention one study that I have found particularlypowerful: Ingeborg
Maus, BiirgerlicheRechtstheorie und Faschismus.Zur sozialenFunktionund aktuellen
WirkungderTheorieCarlSchmitts(Munich:Wilhelm Fink:1976).For a survey of the
German literature:Reinhard Mehring, "CarlSchmitts Lehre von der Auflosung
des Liberalismus:Das Sinngefige der Verfassungslehre als historisches Urteil,"
Zeitschriftfur Politik38 (1991); Mehring, "Vom Umgang mit Carl Schmitt. Zur
neueren Literatur,"Geschichteund Gesellschaft19 (1993):esp. 399404.
300 THE REVIEW OF POLITICS

need to make an analysis of Schmitt's legal scholarship part of

that picture. Furthermore,Schmitt's legal writings raise a number
of difficult questions for liberalism. His ambitious Weimar-era
critique of the fundaments of liberal constitutionalism, as a
prominent German legal theorist recently noted, constitutes one
of the most impressive contemporary attempts to formulate a
theoretical antipode to liberal constitutionalism: "No one has
formulated the anti-liberalalternativeto the modem constitutional
state as clearly, tersely, and pitilessly as" Carl Schmitt.2 At an
historical moment when liberal constitutionalism once again is
subject to a series of one-sided, purely "deconstructive"criticisms,
we would do well to recall the ideas of one of its most
provocative-and disturbing-mid-century critics.3
Here, I aim to contribute to this task by offering a critical
account of Schmitt's Weimar-era critique of liberal
constitutionalism. Because liberal constitutionalism itself hints at
the existence of profound problems unresolvable within its own
intellectual parameters, Schmitt deems it deeply inadequate.
Liberal constitutionalism is unable to grapple adequately with
core features of political life (I). Then I respond to Schmitt by
suggesting that his argument reproduces the errors of a tradition
of legal thought, legal positivism, that inspired Schmitt's assault

2. Ulrich Preug, "DerBegriffder Verfassungund ihre Beziehung zur Politik,"

in Zum Begriffder Verfassung.Die Ordnungdes Politischen,ed. Preulf (Frankfurt:
Fischer, 1994), p. 10. Also: Preufi, "Constitutional Powermaking for the New
Polity: Some Deliberations on the Relations Between Constituent Power and the
Constitution," CardozoLawReview14 (1993):649.
3. Here, I cannot offer an adequate discussion of contemporary strands in
left-wing jurisprudence that parallel, oftentimes disturbingly, Schmitt's ideas.
But many recent critics stand in Schmitt's shadow by emphasizing the inevitably
willful and arbitrarynature of constitutional government. One can even imagine
Schmitt applauding Derrida's view, recently defended by Bonnie Honig, that
"every system is secured by placeholders that are irrevocably, structurally arbi-
trary and illegitimate. They enable the system but are illegitimate from its
vantage point." For a view of liberal constitutionalism as inherently arbitrary:
Bonnie Honig, "Declarationson Independence: Arendt and Derrida on the Prob-
lem of Founding a Republic," AmericanPoliticalScienceReview85 (1991). In this
vein, also: Chantal Mouffe, TheReturnof thePolitical(New York:Verso, 1993). For
a fine criticaldiscussion of these trends:Seyla Benhabib,"Democracyand Differ-
ence: Reflections on the Metapolitics of Lyotard and Derrida,"Journalof Political
Philosophy2 (1994).
 SCHMITT'S CONSTITUTIONALISM 301
I

in the first place. Consequently, Schmitt ultimately criticizes little

more than an idiosyncratic and limited version of liberal
constitutionalism. Leo Strauss's observation that Schmitt's
"critiqueof liberalismtakes place within the horizon of liberalism"
is accurate, but only if we acknowledge that Schmitt's
interpretation of the "horizon of liberalism" is limited.4However
provocative, Schmitt's critique is untenable (II).
I

For Carl Schmitt,the essence of liberalconstitutionalismis best

captured by a term which he uses in an undeniably deprecatory
fashion throughout his Weimar-era writings: normativism.
Notwithstanding the immense diversity of liberal ideas about
constitutionalgovernment,Schmittclaims that liberalshave always
sought to subjectpolitical power to a system of norms,to some type
of rule-based legal regulation. Whether by means of a polemical
contrast between "the rule of law" and the "rule of men," or an
espousal of the now commonplace view that governmental power
is only legitimate when derived from a fixed, written constitution,
liberalsrepeatedly emphasize the politicalvirtues of subordinating
every conceivable expression of state authority to codified legal
standards. Early liberals were most rigorous in this quest; Schmitt
sees them as pursuing a "consistentnormativity."5They not only
aspired to regulate state power in accordance with a system of
neatly codified legal and constitutionalstandards,but they sought
a higher legitimacy for positive law within a system of natural
right; in turn, natural right was typically conceived in a highly
legalistic manner. In this early version, normativism still took an
expressly moralform.Liberalsbelieved unabashedlyin the rightness

4. Leo Strauss, "Comments on Carl Schmitt's BegriffdesPolitischen,"in Carl

Schmitt, The Conceptof the Political, trans. George Schwab (New Brunswick:
Rutgers University, 1976), p. 105.
5. Carl Schmitt, Die Verfassungslehre(Munich:Duncker and Humblot, 1928),
p. 9. Die Verfassungslehre is the centerpiece of Schmitt's jurisprudence;thus, my
emphasis on it here. But Schmitt's Weimar-era ideas on constitutional govern-
ment are also developed in a series of further texts as well: Der Huter der
Verfassung(Tiibingen: Mohr, 1931); Legalitatund Legitimitat(Munich: Duncker
and Humblot, 1932); Verfassungrechtliche Aufsitze aus den Jahren1924-1954(Ber-
lin: Duncker and Humblot, 1973).
302 THE REVIEW OF POLITICS
I

and rationalityof their legal and constitutionalideals. Early liberal

conceptions of the legal statute best embodied this spirit. For John
Locke and other Enlightenment liberals, for example, state action
was only acceptable when based on cogent, general laws, which
Locke saw as constituting an attempt by mortals to reproduce the
universalism of divine naturallaw. Individual legal measures were
deemed potentially arbitrary-and utterly incompatiblewith early
liberalism's ambitious moral universalisticworldview.6
Despite Schmitt'sat times surprisinglyflatteringdescription of
early liberal constitutionalism-his argumentative strategy in the
1928 Constitutional Theory parallels his attempt to criticize
contemporaryparliamentarismby contrastingit unfavorablyto an
idealized, even romanticized interpretation of its classical
predecessor-he still believes that the early liberal constitutionalist
quest was ultimatelydoomed. ForSchmitt,normativismis always an
eminently utopian worldview. Inevitably, liberals are forced to
abandonconsistentnormativismin favorof more modest versions of
normativisticthinking. Modem liberalshence ultimately surrender
traditionalliberalism'semphasis on the sanctityof the generalityof
the legal norm, and liberals increasingly tolerate legal forms
incompatiblewith the ambitiouslegalidealsarticulatedin the theories
of writerslikeLocke,Montesquieu,and Beccaria.InSchmitt'saccount,
the proliferation of open-ended, vague law in our century suggests
thatlegal actiontoday tends to an ever greaterextentto take the form
of highly discretionary,situation-oriented"power decisions," most
of which have littlerelationto the ambitiousideals of the early liberal
ruleof law. Reminiscentof some strandsof recentliberallegalthought,
Schmittbelieves that the contemporaryadministrativestate conflicts
with traditionalliberalgeneral law; in stark contrastto liberalslike
Theodore Lowi or FriedrichHayek, however, Schmitt posits that
illiberallegal trendsare little more than a concretemanifestationof a
fundamental failing inherent in normativisticliberal thinking. For
Schmitt,liberalnormativismlackspoliticalefficacy.Thus,the ongoing
decline of traditional liberal law is both predetermined and
irreversible.7

6. On the role of the concept of the generality of law in liberal legal thinking:
Schmitt, Die Verfassungslehre,pp. 138-57.
7. For Schmitt's most important polemic against nonclassical forms of law:
Unabhdngigkeitder Richter, Gleichheitvor dem Gesetz, und Gewahrleistingdes
Privateigentumsnach der WeimarerVerfassung(Berlin:Walter de Gruyter, 1926).
 SCHMITT'S CONSTITUTIONALISM 303

For Schmitt, two recent manifestations of liberal

constitutionalist"decay"(Verfall)possess special significance.
First,Hans Kelsen'slegal positivism continuesto envision the
legal system as consistingof a set of norms,ultimatelyderivable
in Kelsen'sview froma "basicnorm,"definedin ThePureTheory
of Lawas "nothingmore than the basic rule, accordingto which
normsof the legal orderare produced."8But Kelsenbreakswith
traditionalliberalismby demandinga clearseparationbetween
legal and moral inquiry. In this system, Schmitt mockingly
comments,a legal norm is "validif it is valid and because it is
valid," but not because it refers to a more fundamentalmoral
ideal.9Consistentnormativismtherebyevolves into a mode of
"bourgeoisrelativism."'0 All that remainsof the utopianpathos
of earlyliberallegalismis the meagerbelief thatlaw consistsof a
coherently structured"hierarchy"of norms. Second, Kelsen's
positivismexercisesan unambiguouslydeleteriousinfluenceon
contemporary constitutional jurisprudence. For Schmitt,
relativismmakesit impossiblefor juriststo conceiveof a "basic
norm"or even a "system"or "hierarchy" of constitutionalnorms
in even the most minimallycoherentfashion;Kelsenis internally
inconsistent.In the aftermathof the demise of naturallaw, "the
[liberal]constitutionis transformedinto a series of individual
positive constitutionallaws. Even if thereis still talk of a 'basic
norm'or 'basiclaw'... this happensonly as a resultof left-over
formulaslong emptiedof theiroriginalmeaning.It is thusjustas
impreciseand confusingto speakof 'the'constitution.In reality,
what is meantby this is an unsystematicmajorityor pluralityof

Schmitt's 1920s writings often echo the concerns of contemporary liberals anx-
ious about the administrative state. But by 1932 Schmitt had moderated his
anxieties: seeing the administrative state as essential to modem politics, but
simultaneously considering it inconsistent with the liberal rule of law, Schmitt
became a defender of new forms of discretionary, non-general law. Schmitt,
LegalitatundLegitimitat,as well as his UberdiedreiArtendesrechtswissenschaftlichen
Denkens (Hamburg: Hanseatische Verlagsanstalt, 1934). This second stage in
Schmitt's thought is the object of Hayek's criticisms of Schmitt in The Road to
Serfdom(Chicago: University of Chicago, 1944).
8. Hans Kelsen, ReineRechtslehre(Darmstadt:Scientia Verlag, 1985), p. 64.
9. Schmitt, Die Verfassungslehre, p. 9.
10. Ibid.,p. 67. Although Kelsen is left unnamed, Schmitt is clearly referring
to Kelsen's democratic theory and its emphasis on the centrality of compromise.
304 THE REVIEW OF POLITICS

constitutional regulations."" If values are relative, a constitution

can embody no set of core moral values, and all constitutional
standards have to be seen as possessing equal worth. None then
deserves special protective status. A clause guaranteeing that
"theological faculties should remain part of the universities," like
that found in Article 149 of the Weimar Constitution, can be no
less vital from a consistent positivist standpoint than a basic
guarantee of free speech, freedom of the assembly, or free elections.
From the perspective of legal positivism, constitutional
amendment procedures need to treat such clauses with absolute
neutrality. Hence, if nothing but a parliamentary supermajority
is needed to amend the constitution, then parliament necessarily
deserves as much of a right to alter (or even abrogate) the core
procedures of liberaldemocracy as reform the theological faculties
in the university. For Schmitt, this suggests the self-evident
incoherence of legal positivism: positivism offers no way to
distinguish between essential and peripheral elements of the
constitutional system. Kelsen's positivism culminates in a brand
of nihilism unable to provide a proper defense of its own
purportedly liberal aspirations. Because legal positivism can
provide no moral justificationfor liberaldemocracy, it unwittingly
equips illiberal political forces with a real opportunity for
destroying the final remnants of liberal normativism: as soon as
illiberal political groupings garner, for example, two-thirds of
legislative votes, positivists are powerless in the face of a likely
decision to dissolve parliament itself. In its final, relativistic form,
normativism arms its own enemies.'2

11. Ibid.,p. 11. But why does Schmitt seem to accept the inevitability of the
demise of natural law? In TheConceptof thePoliticalhe endorses Weber's famous
assertion that the political and moral "life spheres" are unavoidably distinct in
the modem world. In other words, he acknowledges the accuracy of some
features of Weber's theory of "disenchantment"(Entzauberung)(Schmitt,Concept
of the Political,pp. 26-28).
12. Schmitt, Die Verfassungslehre,pp. 11-36. At first glance, Schmitt's argu-
ment here seems persuasive. Many contemporary commentators (for example,
Bendersky and Schwab) have praised Schmitt on this point. But a word of
warning is in order. In Legalityand Legitimacy,Schmitt similarly criticizes positiv-
istic ideas of constitutionalism by contrasting it to a (preferred)model of "value-
laden" legitimacy.But Schmittexpresslyidentifiesthis system of legitimacywith a
form of dictatorship(Schmitt, Legalitatund Legitimitit,pp. 87, 96-98).
 SCHMITT'S CONSTITUTIONALISM 305
I I

But why did liberalism inevitably have to abandon

"consistent normativity"? Why is self-destructive, nihilistic
legal positivism the inexorable "final offshoot" (letzten
Auslaufer) of classical liberalism, as Schmitt believes?13
Alas, Schmitt provides only the most meager historical
details when sketching out his dramatic thesis about
normativistic constitutionalism's inevitable decay. His
argument is primarily legal-philosophical in nature. Even the
most coherent brand of liberal normativism is intellectually
flawed, and thus normativism must undergo a long process of
historical deterioration. History, it seems, follows
jurisprudence: Schmitt assumes that the immanent conceptual
limits of liberal constitutional theory can explain both its
intellectual decline and (alleged) real-life political ills.
Schmitt employs a variety of arguments in order to illustrate
liberal constitutionalism's immanent flaws. Most important,
he points outs that liberals regularly presuppose the existence
of a viable political apparatus; liberal constitutionalism's own
stated aim is merely the limitation of a (pre-existing)
institutional complex. This might seem trivial. But for Schmitt,
it implies that liberals themselves concede, albeit in a
backhanded manner, that the existence of a functioning political
entity is necessarily prior to any normativistic restraints on it.
Allegedly, liberals thereby begin to admit that normativism
can never provide an adequate basis for a political community.
Normativism fails when forced to grapple with the most basic,
"existential" elements of political experience. A people is
"constituted" first and foremost by means of possessing a
capacity for undertaking violence against external threats, by
the fact that it is "awakened" and "capable of action" against
potential political enemies.14 Political experience inevitably is
characterized by potentially life-threatening situations in which
political entities face off against "the other, the stranger," a
foe, who "in a specially intense way, [is] existentially something
different and alien, so that in the extreme case conflicts...are

13. Schmitt, Die Verfassungstheorie,

p. 8.
14. Ibid.,p. 50.
306 THE REVIEW OF POLITICS

possible."'5Only if a political entity can successfully ward off the

"stranger" and thus guarantee its survival do liberal legal
normativities even have a chance to function successfully.
Normativities are ineffective for resolving truly life-threatening
political conflicts: "these can neither be decided by a previously
determined general norm nor by the judgment of a disinterested
and therefore neutral third party."'6The very intensity of such
"existential" conflicts excludes the possibility of regulating them
by liberal legal devices; Schmitt is dismissive of theorists, like
Kelsen, who believed that Weimar's deep tensions could in part
by healed by means of judicial intervention. In such situations,
judicial devices are necessarily so politicized-that is, they become
nothing but an unmediated battleground for warring,
"existentially" opposed-political entities-that they no longer
can meaningfully claim to embody liberal legalistic concepts of
neutrality or equality before the law. They become nothing but
the weapons of an explosive, potentially violent political struggle.17
Liberal constitutionalism becomes worthless precisely when the
political integrity of the community is at stake.
Liberals refuse to concede the unavoidable limits of
normativism. Nonetheless, they still must grapple with the
exigencies of a political universe inconsistent with their
normativistic inclinations. Hence, when liberals do try to come to
grips with the imperatives of friend-foe politics, they can only do

15. Schmitt, Conceptof the Political,p. 27. This passage might suggest that
Schmitt is a modem day Hobbesian intent on demonstrating the primacy of
power vis-a-vis law. One immediate problem with this interpretation is that
Schmitt repeatedly gives his interpretation of friend-foe politics a radically
nationalistic and even ethnic connotation. Unlike Hobbes, Schmitt is writing in
the aftermath of the emergence of modem forms of nationalism and xenophobia,
and he accordingly gives his otherwise Hobbesian claims a gloss that probably
would have been alien to Hobbes. As Preui has noted, Schmitt's "ethnicist"
constitutional theory tends to rest on a substitution of the ethnosfor the demos:das
Volkis conceived as an "ethnic and cultural oneness," with a "capacityto realize
its otherness in relation both to others and the liberal-universalist category of
mankind" (PreuB,"ConstitutionalPowermaking for the New Polity," p. 650).
16. Schmitt, Conceptof the Political,p. 27.
17. Schmitt, Der Hiiter der Verfassung;for Kelsen's reply: Wersoil der Hiter
derVerfassungsein? (Berlin:Rothschild, 1931).The existential foe can very well be
a domesticpolitical opponent.
 SCHMITT'S CONSTITUTIONALISM 307
Ill

so in badfaith.18Althoughliberallegalismis hostileto dictatorship,

even liberals outfit state authoritieswith far-reachingpowers
during an emergencysituation.Similarly,liberalsshirk at any
mention of the concept of sovereignty.Nonetheless,they often
makeeffectiveuse of statepowerin orderto defeatlife-threatening
foes. Notwithstanding liberal aspirations, constitutional
governmenthas nevertakenan exclusivelynormativisticform;it
necessarilyis always mixed with supranormative,"existential"
elements,functioningto guaranteepoliticalself-preservationin
an unavoidablyviolent political universe. Liberalsrepeatedly
transgressthe narrowconfinesof theirnormativisticworldview.
Yet to admit this flaw openly would demand of them that they
acknowledgethepoliticalirrelevanceof muchof theirworldview.
Normativistic assumptions similarly hinder liberals from
adequatelyconceptualizingtheproblemof legalandconstitutional
validity. As Schmittsarcasticallynotes, "the legal idea cannot
realize itself."'9Legal norms are valid because they have been
promulgatedby an authoritativeact: in Schmitt'sterminology,
every norm rests on a "decision"made by a concrete "will."
Analogously,a constitutionis legitimate"when the power and
authorityof the constituentpower . . . is recognized."20 Early
liberalsmay have been more intellectuallyconsistentthan their
successors,but even they allegedly failed to see that legitimacy
requires no "justificationby means of an ethical or juridical
norm."21 Early liberal conceptions of natural law remained
imprisoned in the (characteristic normativistic) failure to
acknowledgethe primacyof those aspectsof politicalexperience
incapable of being deduced from a legal norm or standard.
AlthoughSchmitt'scritiqueof legal positivism at first seems to
share many of the concernsof contemporarynaturallaw-based
jurisprudence,his argument is thus ultimately quite distinct:
because core elements of political experience are essentially

18. For an excellent account of this matter: David Dyzenhaus, Truth'sRe-

venge:Carl Schmitt,Hans Kelsen,and HermannHellerin Weimar(Oxford: Oxford
University Press, forthcoming).
19. Carl Schmitt, PoliticalTheology,trans. George Schwab (Cambridge, MA:
MIT Press, 1985), p. 28.
20. Schmitt, Die Verfassungstheorie,
p. 87.
21. Ibid.,p. 87.
308 THE REVIEW OF POLITICS

supranormative, legitimacy ultimately can refer to nothing

more than the efficacy of a particular set of political power
holders or decision-makers. Here, legitimacy is essentially a
question of power.22Schmitt cannot deny the obvious point that
liberals aspire to make sense of the problem of legal validity.
But in his view, they inevitably provide a distorted view of the
problem at hand. Kelsen's insistence on the need to separate
an empirical analysis of political power from legal science is
the most blatant example of this danger. Insisting on a radical
distinction between an empirical analysis of political power
and legal science, Kelsen cannot even begin to make sense of
the inherently coercive character of his "hierarchy" of legal
norms, let alone provide a satisfying account of the political
dynamics of constitution-making. Contra Kelsen, only if we
acknowledge that a constitution gains validity on the basis of
a coherent political decision by a particular "will" can we
begin to conceive of it as a unified, hierarchically ordered
whole, where some constitutional clauses are undoubtedly
more vital than others. Those who acted to establish the Weimar
Constitution, for example, surely would have seen its basic
liberal-democratic principles as more significant than Article
149's special protections for divinity school professors. In
Schmitt's view, they might rightfully have interpreted the
positivist attempt to confuse this issue as constituting a starting
point for undertaking potentially illegitimate forms of action
against the German people's original basic "decision" in favor
of a particular political form. Positivists who insist on treating
every constitutional clause in a perfectly neutral manner obscure

22. For Schmitt, "when the power and authority of the constituent power,
whose decision the constitution rests on, is recognized," a constitution is
"legitimate." Power is then described as something "necessarily real", whereas
authority implies "continuity" and tradition. Moreover, "in every state, power
and authority coexist and depend on each other" (Schmitt, Die Verfassungslehre,
pp. 75, 87). For a perceptive early criticism of this aspect of Schmitt's theory:
Erich Voegelin, "Die Verfassungslehre von Carl Schmitt," Zeitschrift fur
iffentlichesRecht 11 (1931). Voegelin endorses some of Schmitt's criticisms of
legal positivism. But he criticizes Schmitt's failure to integrate normative
concerns into his analysis of the problem of legitimacy. Below I discuss the
conceptual roots of this error.
 SCHMITT'S CONSTITUTIONALISM 309
I

the absolutely pivotal significance of the "will" that decided in

favor of a particularpolitical system in the first place.23
Furthermore, normativism prevents liberals from properly
understanding the origins and underlying dynamics of their own
constitutional system. Just as liberals are hesitant to admit the
necessity of dictatorial emergency powers in order to guarantee
the self-preservation of a liberal democracy, so too do liberals
preferto obfuscatethe factthatliberalconstitutionalsystems always
presupposeand perpetuatea dictatorialact:normatively unregulated
power is crucial to every political system. In order to support this
claim, Schmitt argues that the Weimar National Assembly of 1919
possessed dictatorial powers.24More ambitiously, he looks to the
theory and practice of the French Revolution to unmask the
purported hypocrisy of liberal jurisprudence. By means of a
reinterpretation of Abbe Sieyes's constitutional theory, Schmitt
argues that liberal democratic jurisprudence implicitlyrecognizes
the existenceof an omnipotent,inalienable,and indivisiblefounding
subject,the pouvoirconstituant.25 For Schmitt, Sieyes's theory gives

23. Carl Schmitt, Die Verfassungstheorie,pp. 20-36. "CarlSchmitt, by adopt-

ing the American theory of the 'inherent limitations upon the amending power,'
tried to distinguish between amending and violating modifications of the Consti-
tution. He was of the opinion that amendments to the Constitution could not
assail the 'Constitution as a basic decision.' . . . The fundamental decisions
regarding value preferences which the Constitution embodies, Schmitt thought,
could not be modified even by the qualified parliamentary majority which [in
Weimar] had the power to amend the Constitution" (Franz L. Neumann, The
Democraticand AuthoritarianState [New York:Free Press, 1957], pp. 53-54).
24. Schmitt, Die Verfassungslehre,pp. 56-60.
25. Hannah Arendt criticizes precisely those elements of Frenchrevolution-
ary thought that Schmitt praises here. In her view, Absolutism contributed to the
failings of the French Revolution, whereas the Americans were fortunate be-
cause they were spared the specter of Absolutism. For Schmitt, the legacy of
Absolutismis centralto understandingliberalconstitutionalism.Despite liberalism's
hostility to Absolutism,liberalconstitutionalismwould lackthe most minimal"politi-
cal" element unless it preservedsomethingof the heritageof Absolutism.Schmitt
dismisses the importance of the American constitutional tradition. Purportedly,
the Americans lack a "genuine" constitutional theory, and TheFederalistPapers
provide mere details about "practicalorganizational questions"[!] (Schmitt, Die
Verfassungstheorie, pp. 78-79). For Arendt's view: On Revolution(New York:
Penguin, 1963).For a discussion of the fascinating dialogue here between Arendt
and Schmitt, my: "Revolutionsand Constitutions:Hannah Arendt's Challenge to
Carl Schmitt,"CanadianJoural of Lawand Jurisprudence (forthcoming, 1997).
310 THE REVIEW OF POLITICS
I

expression to the fundamental truth that the modern sovereign,

the "people" is only capable of giving itself a constitution once it
has proven its ability to undertake resolute action against potential
foes.26But the very act of demonstrating its political integrity
may require that a "people" revert to utterly illiberal, absolutist
means. Why? A political entity must guarantee its self-
preservation if it is even to begin to launch itself down the path
towards liberal constitutionalism. But political self-preservation
rests on the possibility of relying on instruments incompatible
with liberal constitutionalism's obsession with restraining and
hemming in political power. The very differentiationof a people
from the "alienfoe" is inevitably supra-normative;Schmitt doubts
that political identity can rest meaningfully on "normativistic"
ideas, in part, as noted, because political conflict with "existential"
enemies reaches such a pitch of intensity that "normativities"are
likely to prove meaningless. Thus, liberal democracy necessarily
presupposes the existence of a normatively unrestrained,
potentially all-powerful sovereign able to ward off the "foe." In
contrast to so much contemporary liberal theory, Sieyes's concept
of the unrestrained pouvoirconstituantthus openly expresses the
fact that every constitutional founding rests, as Schmitt had noted
in the 1922 Political Theology,on "a pure decision not based on
reason and discussion and not justifying itself...an absolute
decision created out of nothingness."27
Liberal constitutional theory then assumes that the
unregulated will of the original pouvoirconstituantcan simply be
absorbed or replaced by the procedures and institutions of the
resultant constitutional system, the pouvoir constitue. Schmitt
considers this incoherent. If both Sieyes' original theory and
much of subsequent political practice are right to see the pouvoir
constituantas omnipotent, inalienable, and indivisible, then the

26. Schmitt accepts the unavoidability of democraticsovereignty in the mod-

ern world. See, for example, his account of the "victory of democracy" in The
Crisis of ParliamentaryDemocracy(Cambridge, MA: MIT Press, 1985), pp. 22-32.
As we will see, the principle of popular sovereignty is reformulated in a highly
idiosyncratic manner in his theory.
27. Schmitt, PoliticalTheology,p. 66. For a thoughtful criticism of Schmitt's
reinterpretationof Sieyes: Stefan Breuer,"Nationalstaatund pouvoir constituant
bei Sieyes und Carl Schmitt,"Archivfiir Rechts-undSozialphilosophie 70 (1984).
 SCHMITT'S CONSTITUTIONALISM 311
-

liberalattempt to absorbit into the path of "normal"liberalpolitics

is incoherent.To make the pouvoirconstituantsubject to the legal
rules and procedures of constitutionalgovernment would rob it of
all those elements that made it the pouvoirconstituantin the first
place. If (1) the foundationof governmentpresupposes the existence
of a popular subject outfitted with unlimited powers, and (2) the
very nature of this founding authority prevents it from being
absorbed into the (normativities)of functioning liberal democracy,
thenwe haveto assumethattheomnipotent
foundingsubjectof liberal
democracyhas neverbeendisbanded.In other words, Schmittbelieves
that we need to take the idea of the inalienability,indivisibility,and
absoluteness of the pouvoir constituant seriously. The pouvoir
constituantremainsa power to be reckonedwith even afterthe act of
founding is complete; the omnipotent subject of every liberal
democracy,the people, necessarilycontinuesto have a realexistence
above and beyond liberalconstitutionalism'sinstitutionalcomplex.
actuponwhichliberal
Theauthoritarianfounding restsis never
democracy
its
complete; dictatorial haunts
spirit themundaneworld
ofeveryday liberal
politics.The omnipotent founding popular sovereign "remainsthe
real origin of all political events, the source of all power. It gives
expressionto this power by means of ever new forms, and generates
new forms and organizationsout of itself, but it never conclusively
subordinatesits politicalexistenceto a particularform."28 Thepouvoir
constituantmakesuse of normativistic liberal institutional devices,
but it can also rightfully discard them at will. Because liberal
procedures and institutions are mere instrumentsof the absolutely
sovereign people, they inevitably lack the permanence liberals
attributeto them. The sovereign people is not to be found in the halls
of parliament;it cannotbe identifiedwith constitutionalor statutory
rules that it may (temporarily)have decided to accept;even a legally
ordainedconstitutionalconventionremainsan inadequateexpression
of the sovereign'struenatureunless the potentiallyunlimitedexercise
of its authorityhas been acknowledged. In addition, "everygenuine
constitutional conflict concerning the political order's underlying
decision can only be resolvedby means of the will of the constitution-
making authority itself."29Or, as one of Schmitt's Weimar

28. Schmitt, Die Verfassungslehre,p. 79. Also: Carl Schmitt, Die Diktatur
(Leipzig: Dunker and Humblot, 1928), pp. 14043.
29. Schmitt, Die Verfassungslehre,
p. 77.
312 THE REVIEW OF POLITICS

contemporaries bluntly commented: meaningful constitutional

reform can only take place by revolutionary means.30 For
Schmitt, no "formalized" procedure or institution can capture
the essence of the sovereign people, because formalization is
incompatible with the willful, unrestrained nature of the pouvoir
constituant.
Where then is the pouvoir constituant located? Schmitt's
answer to this question in the 1928 ConstitutionalTheoryalready
anticipates his subsequent espousal of a mass-based
plebiscitary regime during the Weimar Republic's final, tragic
years. ConstitutionalTheoryrevealingly tells us where the pouvoir
constituant is not found: in the universe of everyday liberal
democratic politics, toward which Schmitt in the 1920s
increasingly had become openly hostile. Schmitt does his best
to ward off possible radical-democratic interpretations of his
constitutional theory. A superficial reader might conclude that
Schmitt hopes to bring about some form of "permanent
revolution" in which an original democratic pouvoirconstituant
continues to exercise political authority in as unlimited and
unmediated manner as possible; one even might see Schmitt
as pursuing Rousseau's preference for periodical assemblies
of the entire people as a way of counteracting political decay.31
But this is not Schmitt's position. After attributing seemingly
awesome powers to the democratic sovereign, Schmitt quickly
adds that the people "can only engage in acts of acclamation,
vote, say yes or no to questions" posed to it from above.32 A
few years later he comments that "it cannot counsel, deliberate,
or discuss. It cannot govern or administer, nor can it posit
norms; it can only sanction by its 'yes' the draft norms presented
to it. Nor, above all, can it place a question, but only answer by
'yes' or 'no' a question put to it."33The sovereign people, it
seems, can only answer simple questions, and the questions are
best formulated and posed by a strong executive who strands
unlimited by parliamentary procedures that potentially

30. Richard Fuchs, "CarlSchmitts Verfassungslehre,"

JuristischeWochenschrift
60 (1931): 1661.
31. Rousseau, TheSocialContract,III. 12-13.
32. Schmitt, Die Verfassungslehre,
p. 315.
33. Schmitt, Legalitatund Legitimitit,p. 93.
 SCHMITT'S CONSTITUTIONALISM 313

underminehis authority.34 As one of Schmitt'sWeimarcritics

commented,popularpoliticalactionhere probablyis reducedto
"an unorganizedanswer ... given to a questionwhich may be
posed by an authoritywhose existenceis assumed"andprobably
unquestionedas well.35Schmitt's"omnipotent"Volkturnsout to
possess a rathermodest,even passiverole.In short:some formof
executive-centeredplebiscitarianismis likely to come closest to
reliving the original founding dictatorship of the pouvoir
constituant.But "normativistic"
liberallegalismsurelycannot.

II

Now it would be unfair to deny that Schmittsucceeds in

identifyingreal problemswithin liberaljurisprudence.We need
not endorse Schmitt'sclaim that liberal constitutionalismhas
undergonean inexorablehistoricaldecay in orderto respecthis
anxietiesaboutits links to value-relativismand legal positivism
in much of our century.Schmittraisesvital questionsabout the
limits of positivist conceptionsof constitutionalinterpretation
and amendment;we only need to recallthatmany contemporary
liberal jurists have expressed at times surprisinglyanalogous
worries about more recent positivist jurisprudence.36 Schmitt's
preference for a decisionistover a normativistinterpretationof
constitutionalismis surely worrisomefrom a traditionalliberal
perspective.Yet at least Schmitt'sformulationopenly concedes
thatexistingliberaldemocraciestoo oftenreston arbitraryforms

34. This is the key argument of Legalitdtund Legitimitdt.The relationship

between Schmitt'sproposals for an authoritarianpresidentialismin the early 1930s
and his subsequent endorsementof the Nazi regime is complicated.But let me just
make one observationhere: we probably both need to distinguish Schmitt'sown
proposals from "mature"Nazism and acknowledge the manner in which many
aspects of Schmitt's theory-most importantly,his "decisionism"-led him to em-
braceNazism. For a critiqueof Schmitt'sconstitutionalthought from an unambigu-
ously pro-Nazi position:Otto Koellreutter,"Volkund Staatin der Verfassungskrise.
Zugleicheine Auseinandersetzungmit der VerfassungslehreCarlSchmitts,"in Zum
NeubauderVerfassung, ed. FritzBerber(Berlin:Junkerand Dunnhaupt,1933).
35. Otto Kirchheimer,Politics,Law and SocialChange(New York:Columbia
University, 1969),p. 78.
36. For a discussion of Dworkin in this context:David Dyzenhaus, "'Now the
Machine Runs Itself':Carl Schmitton Hobbes and Kelsen" CardozoLawReview16
(1994).
314 THE REVIEW OF POLITICS

of power and exclusion;the real question is whether this is as

inevitableasSchmittasserts.Similarly,traditional
liberaljurisprudence
offeredan excessivelymechanicalview of judicialinterpretation,
and Schmittis right to suggest that some Enlightenmentliberal
theoristsobscurethe complexityof the relationshipbetween the
legal normand judicialdecision.Schmitt'scontroversialtheoryof
the pouvoirconstituant may rest on a highly selective and far too
uncriticalappropriation of Frenchrevolutionarypoliticalthought.
By the same the
token, relationship of democracyto constitutionally
based limits on populardecision-making remainsa controversial
issue within liberal theory.37Whateverthe faults of Schmitt's
argumentation, he at leasthelps remindus of one of the genuine
paradoxes of modem constitutionalism:"thepeople"alonecanfound
constitutionalgovernment,but constitutionalismthen faces the
difficulttaskof funnelingandchannelingpopularpoliticsby formal,
legalmeans.
Butto leave the storytheremightlead us to miss the depthof
Schmitt'shostilityto liberalconstitutionalism. Schmitt speaksto
importantquestions within liberal
theory.But he lackstheconceptual
instruments for
neressary analyzing these questionsadequately.As I
to this
hope show, failingultimately derivesfromSchmitt'sobsession
with clearlydistinguishinghis intellectualperspectivefromthatof
liberalism's purported"finaloffshoot,"HansKelsen'sbrandof legal
positivism.RespondingtoKelsen'speculiarvarietyofliberalpolitical
andlegaltheory,Schmittreproducesthemostbasicmethodological
flawsof Kelsen'slegalpositivism.As a contemporary ofbothSchmitt
andKelsenearlyon recognized,SchmittanswersKelsen'stheoryof
the will-lessnormwith an alternativetheoryof the norm-less will38In

37. Fora recentdiscussion of this issue:StephenHolmes, "Precommitmentand

the Paradoxof Democracy,"in Elsterand Slagstad,Constitutionalism andDemocracy.
38. The WeimartheoristHermannHellermakes this observationin his brilliant
but unfairly forgotten Die Souveranitit(Berlin:de Gruyter,1927). For an excellent
discussion of Heller's theoryand its relationshipto the ideas of Kelsen and Schmitt:
WolfgangSchluchter,EntscheidungfirdensozialenRechtsstaat. HermannHellerunddie
Diskussionin der WeimarerRepublik(Baden-Baden:Nomos, 1983).
staatstheoretische
Other Weimar-erawriters also saw Kelsen's positivism as complict in Schmitt's
decisionism. For example, Franz Neumann observed that "by throwing out of
account all relative problems of political and social power, it [Kelsen'spositivism]
paves the way for decisionism, for the acceptanceof political decisions no matter
where they originateor what theircontent,so long as sufficientpower standsbehind
them" (Neumann, Behemoth: The Structureand Practiceof NationalSocialism[New
York:Harperand Row, 1965],p. 47).
 SCHMITT'S CONSTITUTIONALISM 315

slightly different terms: Kelsen's pure theory of law becomes

Schmitt's "pure theory of the will." Like Kelsen's original,
Schmitt's own radical juxtaposition of the normto the will distorts
the nature of legal and political experience. Thus, Schmitt never
really succeeds in superseding Kelsen. He simply offers an
authoritarian complementto Kelsen's legal positivism.39
As we saw above, Schmitt attributes the ills of liberal
constitutionalism to its purported normativism. Recent
commentators have interpreted Schmitt's use of this term (and
many related ones, such as "normativity"and "normativization")
as an instrument for criticizing universalisticelements of liberalism
(liberal ideas about the basic equality of all persons, for example).
But this reading probably attributes a degree of precision missing
from Schmitt's own usage.40Normativism refers for Schmitt to a
tremendous diversity of distinct ideas: it includes early liberal
conceptions of natural law as well as modem legal positivism,
robust and unabashedly (universalistic) moralideals as well as
value-relativistic theoretical positions, the rule of law (or: rule of
legal norms)and liberal aspirations to subject politics to normative
(or moral) concerns, diverse liberal views on the origins of
constitutional government alongside a panoply of liberal
conceptions of judicial decision making. Although Schmitt offers
countless examples of "normativism," "normativization," and
"normativities," he never defines these terms with any real
specificity. The reader will look at Schmitt's massive oeuvre in
vain for an adequate definition of what they precisely entail.
However effective as a rhetorical instrument for discrediting
liberalism, the concept of normativism simply does not provide
as solid a basis for Schmitt's ambitious critique as he believes.
Repeatedly, Schmitt crudely subsumes distinct liberal ideas under
the (vague) category of normativism. This precludes him from
formulating an adequately subtle interpretation of liberal ideals

39. Much of the literature sympathetic to Schmitt misses this: see Schwab,
Challengeto the Exception;Bendersky, CarlSchmitt.
40. For one recent interpretation of Schmitt that focusses on his hostility to
universalistic elements of liberalism: Matthias Kaufmann, Rechtohne Regel?Die
philosophischenPrinzipien in Carl Schmitts Staatstheorie(Freiburg: Karl Alber,
1988). I also commit this mistake in my: Betweenthe Normand the Exception:The
FrankfurtSchooland the Ruleof Law(Cambridge, MA: MITPress, 1994).
316 THE REVIEW OF POLITICS
mI

and their distinguishing characteristics; by grouping vastly

different versions of liberal thinking (Montesquieu and Kelsen,
for example) under the rubricof normativism, Schmitt has already
taken substantial steps towards "demonstrating"the intellectual
incoherence of liberalism even before he has even begun to
articulate any real criticisms of liberal ideals. Furthermore, the
straw man of normativism simply does not allow Schmitt to
capture the essence of liberal constitutionalism in the first place.
As any reader of Aristotle's Politicsis well aware, modern liberals
hardly stand alone in their praise of the rule of law; as Aquinas
shows so well, the attempt to subject politics to "normativistic"
(universalistic) moral ideals was essential to medieval Christian
political thought. Yet Schmitt's use of the term normativism
makes it difficult to determine what makes Locke or Kelsen more
"normativistic"than Plato, Aristotle, Aquinas, or any of a host of
competing classical authors.41Schmitt's attack on "normativism"
may offer a starting point for criticizing the mainstream of western
political thought, but it is hardly the best way to identify and
criticize the specificills of liberal constitutionalism.
But perhaps this is a bit unfair to Schmitt. Surely, his Weimar-
era writings devote substantial attention to the task of defining
the liberal rule of law, which Schmitt rightly considers the
centerpiece of liberalconstitutionalistthinking. Schmittrepeatedly
argues that only the generality of the legal norm satisfies the
conditions of the rule of law-ideal, for judicial independence "in
the face of an individual measure is logically inconceivable."42
Legislative action in the form of an individual act destroys any
meaningful distinction between judicial and administrative
decision-making. When state action is directed at a particular
objector individual, judicial activity no longer differs qualitatively
from inherently discretionary, situation-specific modes of
administrative action; a core element of the rule of law, the idea
of determinate,norm-basedjudicial action, thus becomes obsolete.

41. Obviously, vast differences separate such authors, and modem liberal-
ism surely does offer a vision of the rule of law different from, say, Aquinas's.
My point here is simply that Schmitt's conceptual paraphernalia just does not
allow him to appreciate the need to make distinctions of precisely this sort.
42. Unabhdngigkeit der Richter,Gleichheitvor dem Gesetzund Gewahrleistung
des Privateigentumsnachder WeimarerVerfassung,p. 23.
 SCHMITT'S CONSTITUTIONALISM 317

But even this seemingly sensible specification of the concept of

normativism quickly turns out to be more slippery than is initially
apparent. Like Schmitt's concept of normativism, his definition
of general law is too open-ended. For the most part, the concept
of general law in Schmitt simply precludes the legal regulation of
an individual object(a particularbank or newspaper, for example).
But at other junctures, general law is seen as being incompatible
with legal "dispensations and privileges, regardless of what form
they take"-in short, with virtually any form of more or less
specialized legislative activity.43The latter view is more far-
reaching than the former: whereas the former provides a rather
minimal restrainton governmental activity, the latter might imply
that the rule of law is incompatible with much legislation essential
to the modern welfare state. That most normativistic of liberal
constitutional normativities-the idea of the general legal norm-
is never consistently defined in Schmitt's writings.
Let me try to suggest that Schmitt's failure to clarify the
precise nature of his "normativistic" liberal foe derives from a
more profound flaw in his theory. Schmitt never offers a coherent
definitionof normativismbecausehis dramatic of the
juxtaposition
normto thedecisionitselfis untenable.
Schmitt correctly criticizes Kelsen's attempt to differentiate
legal science from an empirical analysis of concrete power rela-
tions: for Kelsen, the latter belongs to the sphere of sociology, and
thus has no place within a "pure" theory of law. As Schmitt
correctly notes, Kelsen thereby obscures the pivotal role of coer-
cive state authority in legal relations. "Kelsensolved the problem
of the concept of sovereignty by negating it."44Kelsen's "basic
norm" is valid only because a particular set of coercive (political)
institutions guarantees its validity. Yet his pure theory of law
provides no role for an analysis of the concrete institutional

43. Schmitt, Die Verfassungslehre, p. 154. He then makes the peculiar com-
ment that equality [before the law] is only possible where minimally a majority
of cases can be affected" (p. 155). In Unabhiingigkeit
derRichter,Gleichheitvor dem
Gesetz und Gewahrleistungdes Privateigentumsnach der WeimarerVerfassunghe
occasionally formulates a much broader conception of general law as well:
general law is incompatible with regulations affecting "several individuals" (p.
22).
44. Schmitt, PoliticalTheology,p. 21.
318 THE REVIEW OF POLITICS

sources of legal validity. Kelsen's legal theory thus not only

reduces the state to a hierarchy of legal norms, but it has no way
of making sense of law's dependence on state authority.
In his quest to criticize Kelsen's "normativistic" brand of
legal positivism, Schmitt commits two fatal errors. First,he seems
to read Kelsen's positivism back into earlier modes of liberal
jurisprudence. Because Kelsen allegedly represents the telos of
liberallegalism, his theory only manifests what was always implicit
in previous brands of liberalism. Notwithstanding Schmitt's own
statement that Kelsen embodies normativism's "final offshoot,"
he still seems to assume that many of his (legitimate) criticisms of
Kelsen apply to each and every variant of liberal
constitutionalism.45For example, Schmitt asserts that Kelsen's
insistence on an absolute separation between legal science and an
empirical analysis of state power expresses nothing but "the old
liberal negation of the state vis-a-vis the law"46-surely an odd
comment in light of the rich and detailed analyses of the concrete
workings of state authority provided by liberal theorists like
Montesquieu or Tocqueville, as well as the awareness by at least
some liberal authors that "emergency powers" (Locke's
prerogative, for example) make up an unavoidable element of
modern political experience.47But Schmitt seems unimpressed
by such obvious counterarguments, in part because he is more
concerned with undermining the legitimacy of liberal
constitutionalist ideals than providing a balanced assessment of
their origins and evolution.

45. As Dyzenhaus rightly notes, Schmitt considers "Kelsen's restatement of

legal positivism ... the fulfillment of the Enlightenment project which attempts
to subjecthuman interactionto an impersonal order rules: the rule of law and not
men" (Dyzenhaus, "'The Machine Runs Itself': Carl Schmitt on Hobbes and
Kelsen," p. 10). In the process, Schmitt makes things too easy for himself: Kelsen
clearly breaks radically with much of Enlightenment liberalism. Locke and even
Kant would have been worried about Kelsen's value-relativism;one can imagine
Montesquieu shaking his head in disbelief at Kelsen's view that an empirical
analysis of political power has no rightful place within jurisprudence.
46. Schmitt, PoliticalTheology,p. 21.
47. This is surely a complicated issue. But a strong argument can be made
that liberal regimes have developed effective legal "normativities"for the regu-
lation of crisis situations. Ernst Fraenkel, ed., Der Staatsnotstand (Berlin:
Colloquium, 1964).
 SCHMITT'S CONSTITUTIONALISM 319

Second,Schmittmerelyreverses Kelsen'sjuxtapositionof legal

science (and its emphasison the legal norm)to the problemof
concretepoliticalpower (the will). But he never questions the
value of makingthis juxtapositionin the first place. Very much
like Kelsen, Schmitt repeatedly conceives of the "will" as
somethingaltogetherdistinctfrom the "norm".At the outset of
ConstitutionalTheory,he emphaticallyobservesthat the will, "in
contrastto merenorms,"is something"existential"(seinsmiifige)
and thus qualitativelydistinctfromthe "ought"(Sollen)character
of norms. "Theconcept of the legal order contains two totally
differentelements:the normative element of the law and the
element of a concreteorder"(emphasis
existential(seinsmii3ige)
added].48Later, he adds that "the word 'will' describes-in
contrastto every formof dependenceon normativeand abstract
rightness-the essentiallyexistentialnatureof the basis of [legal]
The 1922PoliticalTheology
validity."49 is even moreblunt on this
point:validity derivesfrom a "puredecision not basedon reason
and discussion and not justifying itself, that is ... an absolute
decision created out of nothingness."50 Schmitt simply turns
Kelsen'sworldviewon itshead.ForKelsen,thenormativeelement
of law (conceived of as distinct from state authority) is the
centerpieceof legal experience,whereas Schmittposits that the
(decisionisticallyconceived)will constitutesits core.
Thisshiftfails to save Schmittfromthe errorsof his positivist
opponent.SchmittcriticizesKelsen'svalue-relativismandworries
about its nihilistic overtones.51But is this not even a better
descriptionof Schmitt'sown restatementof Kelsen'spositivism,
particularlyin light of Schmitt'suncriticalview of the "pure
decision not based on reason or discussion and not justifying

48. Schmitt, Die Verfassungslehre,pp. 9-10. In a manuscript left unfinished at

the time of his death in 1973, the elder Kelsen did finally question this dramatic
juxtaposition of the will to the norm. For a helpful discussion of this develop-
ment: Stanley Paulson, "Kelsen'sLegal Theory:The Final Round," OxfordJournal
of LegalStudies12 (1992).
49. Schmitt, Die Verfassungslehre,p. 76.
50. Schmitt, Political Theology,p. 66. The term "pure" here is revealing:
Kelsen's "pure"theory of law is replaced by Schmitt with a theory emphasizing
the "purity"of the decision.
51. On democracy and value-relativism: Hans Kelsen, Wesenund Wertder
Demokratie(Tiibingen: Mohr, 1929).
320 THE REVIEW OF POLITICS
I I

itself"? Schmitt perceptively comments that Kelsen's conception

of the legal system in terms of "pure normativity" smacks of the
realm of make-believe. But what about Schmitt's own "pure"
decision, his "will" free of all conceivable normative restraints?
Admittedly, Schmitt's extremely open-ended conception of the
"normative"makes it difficult to imagine exactly whatconstitutes
a "pure decision" or "norm-less will." But a naive question may
be in order here: is it not the case that the human will always and
inevitablyexpresses itself in accordance with some type of norm
or "normativistic" outlook? As Max Weber comments at the
outset of EconomyandSociety,human action entails that the "acting
individual attaches a subjective meaning to his behavior-be it
overt or covert, omission or acquiescence."52This meaning may
be simple or complicated, attractiveor repellent, liberal or illiberal:
in any event, our common world is constituted by means of
purposeful human action, by modes of human activity having a
practical or normative significance for us. Meaning-constitutive
human activity inevitably structuresthe social world, and facticity
and normativity thus inevitably overlap in such a way as to
render Schmitt's concept of the will-less norm as one-sided and
truncated as Kelsen's corresponding norm-less will. Schmitt's
idea of the norm-less will deceptively suggests the possibility of
a form of unbridled subjectivity probably incompatible with the
basic principles of any identifiably human form of subjectivity.
Animals and automatons may act outside the parameters of
"normative" concerns. But humankind cannot.
Schmitt believes that the primordial status of the norm-less
will is demonstrated, as we saw above, by a host of practical
examples. But is the political and historical evidence quite as
unambiguous as he suggests? We surely might endorse some
elements of Schmitt's deprecatory account of mechanical theories
of judicial action in which the decision vanishes as an independent
object of inquiry. By the same token, we need to ask whether
judicial decision making could ever take a fully norm-less form;
even the fascist legal model enthusiastically supported by Schmitt

52. Max Weber, Economyand Society,vol. 1 (Berkeley:University of Califor-

derSoziologie
nia, 1979),p. 4. See also: Hermann Heller, "Staat,"inHandworterbuch
(Stuttgart:Ferdinand Enke, 1955).
 SCHMITT'S CONSTITUTIONALISM 321
I

during much of the 1930s entailed a "normative"agenda, albeit a

rabidly nationalistic and deeply illiberal one.53The idea of a legal
system without a crucial "normativistic" component is as
problematic as Kelsenian positivism's vision of a legal system
without coercive, political elements. In modern political history,
constitution-making often does presuppose explosive moments
of political struggle in which a particular political entity
"differentiates" itself from an alien "foe." Yet such struggles
hardly occur in a normative vacuum: competing practical ideals
and "normativities" obviously play a crucial role even in the
most violent, life-threatening political moments-in revolutions,
civil wars, and state of emergencies. For that matter, does
constitutional history really present us with even a single example
of a normatively unregulatedpouvoirconstituant?Even the Jacobins
and Bolsheviks accepted the legitimacy of someprocedural rules
and norms; even the most disturbing features of modern
revolutionary politics express some normative ideals and
aspirations, however unattractive they may be. Jacobins and
Bolsheviks represent a worrisome variety of "normativism,"but
their actions hardly embody "a pure decision not based on reason
and discussion and not justifying itself."
A common criticism of Kelsen's legal positivism is that
empirical concerns in fact inevitably enter his pure theory of law
for the simple reason that a radical delineation of legal science
from sociology is untenable: Kelsen "sneaks"empirical elements
back into his "pure" legal categories because without them it
would be impossible to offer a minimally coherent account of
legal phenomenon. Less appreciated is that Schmitt's
corresponding pure theory of the will reproduces Kelsen's failing
on this point as well. Despite its insistence on the purity of the
will in relation to the norm, Schmitt's Constitutional Theory
repeatedly concedes that the will (and volitional elements of
political reality) and norm (normative elements) are unavoidably
fused in concrete political reality. Early on the reader is told that
the "normatization" of the Weimar constitutional system is
radically distinct from the German people's existential "decision"

53. On Schmitt's relationship to National Socialist law: Bemd Riithers,

EntartetesRecht. Rechtslehrenund Kronjuristenim Dritten Reich (Munich: C. H.
Beck, 1988).
322 THE REVIEW OF POLITICS

in favor of a particular regime-type. Yet Schmitt himself then

openly declares that some constitutional clauses "are more than
laws or normativizations" because they directly embody the
original decision of the German people. In other words: although
the "will" of the German people allegedly lacks all normative
elements, it only gains expression by means of the
(characteristically normativistic device) of the codified
constitutional clause.54Schmitt then argues, as noted above, that
the liberal idea of general law is a quintessentially normativistic
ideal. But he also states in the ConstitutionalTheorythat general
law is "political" and thus, within the confines of his theoretical
system, inherently anti-normative.55After berating liberals for
trying to subject the pouvoirconstituantto an array of (allegedly
normativistic) decision making procedures, Schmitt offers his
own model of mass-based plebiscitarianism. But the reader is left
wondering why Schmitt's own proposals are necessarily more
"norm-less": they certainly seem to constitute some type of
"normativistic" regulation of popular decision making, albeit
one with decidedly authoritarian credentials. In short: Schmitt
himself suggests the mythical nature of his own "pure theory of
the will."
Schmitt believes that he has succeeded in formulating a
theoretical antipode to Kelsen's nihilistic legal positivism. In
reality, his alternative is little more than a second cousin to
Kelsen's positivism. Moreover, the second cousin has abandoned
the liberaland democraticintentions of his not-so-distant positivist
relative. Schmitt's theory reproduces the weaknesses of a highly
idiosyncratic-and hardly exemplary-version of modern liberal
jurisprudence. By no means can Schmitt legitimately claim to
have superseded liberal constitutionalism. Schmitt has simply
surrendered its most worthwhile achievements.

54. Schmitt, Die Verfassungslehre,

pp. 24-25.
55. Ibid.,p. 253.