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ABSTRACT
THE POLITICS OF AN INTELLECTUAL:

THE POLITICAL ACTIVITY AND IDEAS
OF CARL SCHMITT, 1910-1945

BY

Joseph William Bendersky

Among the host of outstanding twentieth-century
(hrmmlintellectuals Carl Schmitt certainly holds a place
of<hstinction. During the Weimar Republic he established
lumself as one of the most brilliant political and consti—
Unfional analysts of that era by publishing countless con—
troversial books and articles on parliamentary government,
dictatorship, and the presidential emergency powers under
Arfisle 48. A professor of public and constitutional law,
Sdmutt acquired a reputation as the Kronjurist of
Ifindenburg's presidential system and later he played the
rokaof figurehead Kronjurist in the early years of the
Third Reich.

Most post—war scholars have used Schmitt's Nazi
affiliation as a means of discrediting the solid contribu~
Ubnslm has made to constitutional and political theory.
For the most part, they have presented Schmitt as an
intellectual underminer of the Weimar Republic and a

Prmflmt of National Socialism. Without exculpating

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Joseph William Bendersky

Sdmutt,nwre recent scholarship has shown that his ideas
mumzbe understood in the context of the various periods
hiwhhfllthey developed, that he had actually opposed the
buzibmchtergreifung, and that his National Socialist
camerjs only one phase in his work.

Almost all of these studies have been based solely
upmiSchmitt's published works and they have also left
nmmmous questions unanswered regarding his ideas and his
wflitical activity. In an effort to acquire a clearer and
monacomprehensive perspective on this enigmatic jurist I
vae relied upon significant new sources from various
(krmmiarchives and Carl Schmitt's personal files. These
smnces were further supplemented by personal interviews
wiUuSchmitt himself, his contemporaries, students, and
cfitics,in addition to discussions with several scholars
whahave published on the subject. When analyzed in con—
finmtion with his published works this new evidence
clmfifies his attitude towards the Weimar Republic and the
Naziregime, while showing the precise nature of his direct
nflationship to the German government during the presi-
dmuial system and the actual extent of his collaboration
with the Third Reich.

Schmitt was neither a reactionary nor a proponent
Ofbhtional Socialism before the seizure of power. Dis-

Nflyhmythe characteristics of a Vernunftrepublikaner, he

wnked for the stabilization of the Weimar Republic rather

 

 
 
 
 
 
 
 
 
 

 

Joseph William Bendersky

than seeking its demise. An essential principle in his
political philosophy was to obey and preserve the existing

political and constitutional order, and he consistently

followed this precept throughout the years of the Republic.

Itwasin the hope of preserving this order and preventing
Hm aanflsition of power by the NSDAP that he lent his
taknms to the presidential system. He transferred his
Joyamy to the Nazi regime only after Weimar had collapsed
amia new political order had been established. Moreover,
flmrevms as much controversy over his ideas in the Third
Rehfllas there had been during the Weimar era. In each
cmseim mistakenly thought that he could directly influ-
mme political decisions through his writings and advice.
Ins fruitless efforts only alienated him from one polit-
kml group after another until Carl Schmitt was condemned

by all.

 

THE POLITICS OF AN INTELLECTUAL:
THE POLITICAL ACTIVITY AND IDEAS

OF CARL SCHMITT, 1910-1945

BY

Joseph William Bendersky

A DISSERTATION

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

DOCTOR OF PHILOSOPHY

Department of History

1975

 

 

 

©Copyright by
Joseph William Bendersky
1975

To Carmen and little Karen

ii

 

 

 

ACKNOWLEDGMENTS

Since the inception of this study my efforts have
been assisted by the professional direction and personal
guidance of Professors Paul R. Duggan and Paul R. Sweet,
both of whom deserve my deepest gratitude and certainly
my professional admiration and respect. As the director
of this dissertation Professor Duggan offered numerous
enlightening insights that have added new dimensions to my
work, and his scrupulous reading of this manuscript has
saved me from embarrassing errors. The personal under—
standing he expressed concerning the problems a candidate
faces in researching and writing made the entire experience
much more rewarding. A similar debt is owed to Professor
Sweet for originally suggesting the study of Carl Schmitt,
and for sharing his unsurpassed experience in the field of
German history. I should also like to thank Professor
Donald Lammers who was kind enough to read the manuscript
and contribute useful comments and necessary corrections.
Professor William J. Brazill merits equal acknowledgment
for assisting me in the researching of this work and, most
Of all, for rekindling my interest in intellectual history.

Without the interviews with Professor Carl Schmitt
himself, and the information he provided, my thesis could

iii

 

 

«A

 

 

 

 

 

 

 

 

 

 

 

"I u
- vi

 

not have been substantiated, and I am indebted to him for
granting me so much of his time and consideration. I am
obligated to Professor George Schwab of The City College
of New York, for placing me in contact with Carl Schmitt
and for his encouragement. Of the countless individuals
in Germany who have expanded my knowledge of the Schmitt
controversy, Professors Helmut Rumpf, Ulrich Scheuner,
Heinrich Popitz, and Dr. Ruediger Altmann, deserve special
recognition. This study was made possible through a grant
from the Fulbright Commission and the assistance of the
Alexander von Humboldt Foundation. The interlibrary loan
division of the Michigan State University Library greatly
facilitated my research, as did numerous archivists
throughout Germany. To these individuals and institutions
I extend my sincerest appreciation.

My most personal expression of gratitude is
reserved for my wife Carmen, who persevered with me through
the years of research and writing, and for my daughter

Karen, who endured the absence of her father for such

long hours .

iv

 

,.

 

 

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . .
CHAPTER
I. EARLY LIFE AND IDEAS . . . . . . .

II. THE YEARS OF INSECURITY, 1919-1922:
THE DEVELOPMENT OF CARL SCHMITT'S
POLITICAL CONSCIOUSNESS. . . . . .

III. THE POLITICAL IDEAS OF CARL SCHMITT,
1922-1928. . . . . . . . . . . . .

IV. THE POLITICS OF A CONSERVATIVE
INTELLECTUAL, 1922-1928. . .

V. THE INTELLECTUAL ENTERS THE CENTER
OF POLITICS, 1928-1931 . . . . .

VI. CARL SCHMITT AND THE END OF WEIMAR,
1932 . . . . . . . . .

VII. THE KRONJURIST OF NATIONAL SOCIALISM,
1933-1936. . . . . . . . . . . . . .

VILL THE INTELLECTUAL IS BANISHED: CARL
SCHMITT AFTER 1936 . . . . .

EPILOGUE . . . . . . . . . . . . . . . . . . .

BINJOGRAPHICAL ESSAY. . . . . . . . . . . . .

 

Page

10

43

67

114

160

211

264

313
346

349

 

 

 

 

 

//."

INTRODUCTI ON

Carl Schmitt is one of the most controversial his—
torical figures in twentieth—century Germany. A prolific
writer and talented scholar, Schmitt distinguished himself
as a preeminent political and legal publicist during the
Weimar and Nazi eras. His intellectual creativity has
commanded respect, even inspired awe in certain circles,
while attracting virulent condemnation in others. Ernst
Fraenkel once referred to him as "the most brilliant polit—
ical theorist" of post—World War I Germany.l Yet, to
others the mere mention of his name, three decades after
the fall of the Third Reich, still elicits the emotionally

charged epithets of "fascist," "swindler,' and “conscience—
less." These varying reactions are indicative of the
Schmitt controversy that seems to produce an endless flow
of literature on this contentious jurist. His writings
have been the subject of twenty-five books and over two

hundred articles. Writers have extensively cemented upon

his ideas in literally hundreds of other publications, and

 

lErnst Fraenkel, The Dual State: A Contribution to
% Theory of Dictatorship (New York, 1941) , p. 131. _

 

 

 

 

 

 

 

 

 

 

 

his writings have been translated into ten foreign lan—
guages. With new editions of his books continually
appearing, Carl Schmitt is by no means a forgotten figure
in German academic life and political discussion.

What keeps the Schmitt controversy alive is not
only disagreement over the ideas embodied in his writings,
but also the myths and legends that have developed about
his actual political standpoint in Weimar and Nazi Germany.
That he dared play the role of the intellectual in politics
is a part of the problem. National recognition of his out-
standing achievements as a professor of public law would
never satisfy Schmitt. Not content to remain within the
confines of the ivory tower, he was irresistibly drawn by
the lure of the political arena he fOund so fascinating.

In the Weimar Republic, Schmitt took a public
stand on several volatile issues. He enthusiastically
stepped into the midst of the debate over the crisis of
parliamentary government and came to the forefront as a
sharp critic of the excessive pluralism of the Weimar
”party—state." His fame continued to grow until his
political ideas received widespread national attention.
As the celebrated analyst of Article 48 of the Weimar
constitution, Schmitt consistently advocated the extensive
use of presidential emergency powers during times of
crisis. Believing that the power of the Reichspresident

could compensate for the weakness of the Weimar party

 

 

 

 

 

 

 

 

 

 

 

 

amtam he actively participated in General von

Sdfleicher's scheme to solve the political crisis of
132%1933 by instituting the presidential system. In his
capmfity as the constitutional and political adviser to
theSchleicher clique, and as the Kronjurist of the cen—
tral government, he also backed Schleicher's attempt to
gmevan:a National Socialist seizure of power. After this
hfitial opposition Schmitt transferred his loyalty to the
Hflfler regime during the course of 1933, publicly sup—
pomjng the Nazi state as its figurehead Kronjurist. When
Hm SS defamed him in 1936 he withdrew into a life of
"inner—emigration."

As a result of his political ideas and activity,
pamjcularly his compromises with the Nazi regime, Carl
Schfltt has suffered the scorn of countless writers.
Pnflmbly the most common and least derogatory charge made
agahmt him is that of opportunism. He has been described
asa "solipsist" and heir to Nietzsche‘s philosophy of the
stauL and accused of actively undermining the Weimar
Remnflic and opening the door for National Socialism.2

OUmr scholars have contended that Schmitt's ideas led

 

Friedrich von der Heydte, "Heil aus der
Geflngenschaft? Carl Schmitt und die Lage der

muopaeischen Rechtswissenschaft," Hochland, Jhg. 43,
(1950/51), p. 289.

 

"a

..4

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

"into the pit of nihilism" and "consummated in the
deification of the antichrist."3
Considering the horrible memories of the Nazi
state these post—war reactions are understandable. No one
can offer any apology for Schmitt's collaboration with the

Hitler regime. Certainly one can easily condemn much of
his political behavior on ethical grounds and detect the
opportunism of his writings during the early Nazi era.
Indeed, all of Schmitt's work is subject to critical
scrutiny and debate, and much of the criticism of him is
justifiable. Nevertheless, Schmitt is a very complex
thinker who cannot be explained merely from the perspective
of his National Socialist career, or on the basis of pre-
conceived and unfounded conceptions of his political
philosophy and personality. Moreover, prejudiced and
inaccurate descriptions of Schmitt and his ideas provide
neither a solid foundation for scholarship nor an adequate
understanding of the man and his work. Only by analyzing
Carl Schmitt and his writings with a measure of scholarly

detachment can one determine the actual nature of his

ideas, intentions, and impact.

 

3Erich Kaufmann, "Carl Schmitt und seine Schule:
Offener Brief an Ernst Forsthoff," Deutsche Rundschau,
Jhg. 84, Heft ll, (October, 1958) , p. 1015. Walter
Lewald, "Carl Schmitt redivivus?“ Neue Juristische
Wochenschrift, Jhg. 3 (1950): p. 377.

 

 

 
 
 
 
 
 
 
 
 
 

 
 

For the most part, however, biased and precon-
ceived notions about the character and ideas of Schmitt
have exercised a predominating influence on most studies
concerning this perplexing jurist. Most scholars have
allowed Schmitt's National Socialist career to overshadow
all of his previous work. They have evaluated his ideas
in terms of an almost inevitable trend leading from the
intellectual undermining of the Weimar Republic to the
founding of the Third Reich.4 The descriptions of Carl
Schmitt which exist in the general histories of the period
are normally based upon these studies and, therefore, are

often inaccurate and completely misleading.

Beginning with Hasso Hofmann's Legitimitaet gegen

 

Legalitaet there has appeared a gradually emerging trend

away from the classic interpretations of Schmitt as the

intellectual precursor of National Socialism.5

Hofmann
analyzed Schmitt's ideas in terms of the various periods

in which they developed, rather than viewing them as a

 

4Two classic accounts of this type of scholarship
are: Juergen Fijalkowski, Die Wendung zum Fuehrerstaat:
Ideologische Komponenten in der politischen Philosophie

Carl Schmitt (Cologne, 1958), and Karl Schultes, Der

 

 

—_..—_____—_.__—________

~h—_—__—_—_—.—_—

 

 
 
 
 
 
 

 
 
 
 

 
 
 

 

 

pre-existing philosophy that came to fruition in the Third
Reich. The most valuable contribution of Hofmann was his
clear exposition of the ideas of Carl Schmitt, without the
emotional and ideological prejudice that has detracted from
earlier works. Yet, by dealing only with Schmitt‘s pub—-
lished works Hofmann failed to take into account the imme-
diate personal and political circumstances under which
Schmitt wrote. Very often Schmitt's ideas were directed
towards a specific political problem, and his writings
were often influenced by his OWn personal or political
situation at that particular time. In essence, Hofmann
neglected the human and political dimensions of Carl
Schmitt which are so fundamental to arriving at a valid
explanation of such a complex thinker, and one who always
had in mind an existing concrete situation.

The reevaluation of Schmitt's work is continued in
George Schwab's _T_h_e Challenge gf t_h_e Exception, which is
definitely a landmark in Schmitt historiography.6 This
short book is the most balanced and accurate elucidation
of the ideas of Carl Schmitt to date. Schwab has disputed
the myth of Carl Schmitt as an early advocate of National

Socialism who worked to undermine the Weimar Republic.

Underlying his interpretation is the assumption that the

 

6George Schwab, The Challenge (i the Exception:
An Introduction to the Political Ideas of Carl Schmitt

————.—____________.__—_—__—__.__.—__

 

 

 

 

 
 
 
 
 
 

 
 
 
 

 

 

ideas of Carl Schmitt cannot be separated from the specific
constitutional and political events which Schmitt addressed.
In this respect Schwab has avoided many of the deficiencies
inherent in Hofmann's book.

Among the most recent studies, those of Helmut
Rumpf and Heinrich Muth have shown the necessary degree of
scholarly objectivity by avoiding both the biases of many
earlier works and the tendency to suspend critical judge—
ment in order to understand Schmitt on his own terms.
Clearly acknowledging that he belongs to neither the close
circle of friends and students of Schmitt nor to the group
of "Anti-Schmittiana" jurists and ideologues, Rumpf has
published a discerning analysis of the actual similarities
and the contrasts between the thoughts of Hobbes and those
of Schmitt. And as the first scholar to document with
archival sources Schmitt's political activity during the
crisis of 1932, Muth has widened our scope of information
and opened a new area for research.

Many questions about Schmitt's role in the Weimar
Republic and the Third Reich, however, are still unans-

wered. By concentrating on the "political ideas" of

 

7Helmut Rumpf, Carl Schmitt und Thomas Hobbes:
Ideelle Beziehungen und aktuelle Bedeutung mit einer
Abhandlun ueber: Die Fruehschriften Carl Schmitts

 

(Berlin, 1972) , Heinrich Muth, "Carl Schmitt in der
deutschen Innenpolitik des Sommers 1932,“ Historische

Zeitschrift, Beiheft l, Beitraege zur Geschichte der
Weimarer Republik (1971) , pp. 75—147.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Schmitt, Schwab has not laid to rest the legends about the
former Kronjurist, especially where his political activity
is concerned. Similarly, Muth's explanation of Schmitt's
ideas and activities is only partially correct. For
underlying Muth's interpretation is the contention that
Schmitt advocated constitutional revision in 1932, a point
contradicted by documentation recently made available to
this author.

The following study is intended to dispel some of
the myths and the inaccuracies about Schmitt‘s political
standpoint and activity. To the extent that I attempt to
present the political and legal ideas of Schmitt in a clear
and precise manner, my work should complement that of
Hofmann, Schwab, and Muth. Nonetheless, the focus of this
study remains that of the politics of an intellectual, and
Schmitt's work is viewed from this perspective. I have
based my conclusions about his intentions, motivations,
and actual political behavior on documentation and not on
existing myths or opinions. It is the contention of this
author that there exists a definite and significant rela—
tionship between the ideas of Carl Schmitt, his political
activity, and the precise political and personal circum—
stances under which he wrote his most controversial works.

To substantiate my contentions I have utilized
Significant new sources from various German archives and

Carl Schmitt's personal files. I have also conducted

 

 

 

 

 

11.,

 

 

 

 

 

 

 

 

 

 

interviews with Schmitt, some of his contemporaries,
students, and critics, as well as with several scholars
who have published on the subject. The new evidence used
in this study clarifies his attitude towards the Weimar
Republic and the Nazi regime, while showing the precise
nature of his direct relationship to the German government
during the presidential system and the actual extent of
his collaboration with the Third Reich.

On the basis of this evidence I have concluded
that rather than seeking to weaken the Weimar Republic,
Schmitt had worked for its stabilization. A basic pre—
cept of his political philosophy, as Schwab points out,
was to obey and preserve the existing political and legal
order, which at that time was the Weimar state and con-
stitution. He approached Weimar from the viewpoint of a
Vernunftrepublikaner and not as a reactionary or prophet
of the National Revolution. Only after Weimar collapsed
did Schmitt join the Nazis. He offered his talents to
the presidential system, and later to the Third Reich,
out of personal ambition and a sincere belief that he
could have an impact on political decisions. In the end,
his desired influence, like his ideas and advice, never

had the results he intended.

 

 

 

 

 

 

 

 

CHAPTER I

EARLY LIFE AND IDEAS

The early years of Carl Schmitt coincided exactly
with the reign of Wilhelm II, the zenith of German pros-—
perity, power, and prestige. When Schmitt was born on
July 11, 1888, Bismarck still personally symbolized German
supremacy on the European diplomatic scene, and Prussian
domination within the Reich. But at this time the seem-
ingly incessant expansion of German industrialization and
modernization had just begun to make its mark on Schmitt's
birthplace of Plettenberg, a small town located in the
heart of the Sauerland. With the Rhine valley to the west
and the highly industrialized Ruhr Basin to the north, the
Sauerland protected its small towns and villages within
the bosom of its mountain forests, isolating these pro-
vincial communities from the mainstream of German society.
Born into an average German family, Schmitt would con-
tinually strive to overcome his humble origins, later
adding the more exotic name of his first wife to his own.

Several of his early publications thus bear the title

 

 

11

Carl Schmitt-Dorotié.l After he removed Dorotié from his
name in the early twenties, the very common name of Carl
Schmitt gradually came to hold a place of distinction in
intellectual circles.

Although he would succeed in establishing a repu-
tation in public life, Schmitt would always remain quite
self—conscious about his background. As a nationalist
who placed considerable emphasis on the power of the German
state, he still felt himself as somehow out of place in
dominant Protestant Prussian circles. Introducing him-
self to Ernst Niekisch for the first time, Schmitt
remarked, "I am Roman by origin, tradition, and right."2
And indeed there was an element of truth to this self-
evaluation. Catholic, vivacious, dark haired, and dark
skinned, he appeared far more Latin than Germanic, and he
was exceptionally short; the last one to be noticed in a
group. He tried to compensate for his small stature by
carrying his head high, often giving the false impression
of arrogance. Both branches of Schmitt's family had

migrated from the Mosel valley, his mother Louise was

originally named Steinlein, a name indigenous to that area,

 

lSee Carl Schmitt—Dorotié, Politische Romantik
(Munich, 1919), and Die Diktatur—-Von den Anfaengen des
SOuVeraenitaetsgedank—e—ns bis zum pr_ol—et?r‘ischen KlasEEH—
kampf (Munich, 1921) . _— _

2 . .
. Ernst Niekisch, Gewagtes Leben: Begegnungen und
We (Cologne, 1958), p. 241. "‘— “‘

 

 

 

 

 

 

 

 

 

 

 

 

1:.
\

12

and he had French speaking relatives in Lorraine. Over
the years he would speak of the Mosel valley as though he
had been reared in that cultural setting; mosel wine was
always his favorite, and he would make such references as
"my nature is slow, silent, and easy—going, like a still
river, like the Mosel."3 Perhaps much of this accounts
for his ability to feel at home in Italian and Spanish
cultures, to which he paid frequent visits.

During these early years, however, it was his
Catholicism that made him feel most like an outsider. By
family tradition the Schmitts were staunch Catholics with
very close ties to the church and clergy; his father
Johann remained an earnestly loyal and lifelong member of
the Catholic Center Party.4 Several of Carl's great—
uncles were priests who participated in the Kulturkampf,
and at one time his family intended that the young Carl
would enter the priesthood. A substantial part of
Schmitt's intellectual frame of reference reflects his
early religious values and training. He considered him—

self a deeply religious man and a fervent Catholic

 

3Carl Schmitt, E_x Captivitate Salus——Erfahrungen
(Lea Zeit 1945/47 (Cologne, 1950), P. 10.

4Schmitt learned stenography as a young boy from
his father and all of his diaries and notebooks, contain-

ing a wealth of information on the Weimar and Nazi
periods, are written in this standard form of shorthand.

Author's interview with Carl Schmitt, Plettenberg,
November 23, 1972.

 

 

m

'7

 

 

 

 

 

'Iw

 

 

 

 

 

13

throughout his life, though he later rejected the organized
church.5 As Catholics the Schmitts lived in a confessional
minority in Protestant Plettenberg, and the parochial clan-
nishness of Protestants and Catholics alike, occasionally
resulting in violence, left an indelible mark on Schmitt's
outlook. He would defend the Catholic cause into the late
twenties, and in later life he would draw distinctions
between. religious groups, as if the intensity of animosity
had not diminished since his youth. Looking over the
newspaper articles covering his eighty-fifth birthday he
said, "See, even the Protestant papers are becoming more

sympathetic towards me."6

The fact that from an early age
he identified himself as a part of a dissonant group
caught in a confessional struggle, no doubt, had an
influence on his tendency to View politics in terms of
friend-enemy relationships, and on his persistent efforts
at placing the state above interest groups.

While never escaping his Catholic heritage Schmitt
would slowly accommodate himself to the secular power of

the German state and adapt to the diversities of the

society in which he lived. Eventually he would accomplish

 

5Author's interview with Carl Schmitt, Plettenberg,
July 13, 1973. For the best account of Schmitt's intel—
lectual heritage, especially the religious influences on

his ideas, see George Schwab, The Challenge, op. cit.,
pp. 18—28. “

6 . . .
Second Schmitt 1nterv1ew, July 13, 1973.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

"A.

 

 

 

14

this by operating on two different levels, one public and
one private. But for the young Carl this necessary
adjustment was no easy task. Antagonisms between the
Catholic church and the German state which had existed
since the Kulturkampf presented a special problem for
German Catholics. They often found their loyalty to the
state suspect, and as a result they sometimes persisted
in viewing themselves as still in opposition to the state,
or they felt obligated to reconfirm their loyalty through
the expression of strong nationalistic sentiments. The
young Carl experienced mixed sympathies regarding church-
state relations, yet his loyalty to the state and his
nationalism formed two continuities in his future polit-
ical thinking.

The dichotomy between his religious beliefs and
the secular society around him became apparent when he
first encountered the Prussian public educational system.
After several years in a Catholic grammar school he
entered the public Humanistic Gymnasium in Attendorn in
1900, where as a devout Catholic he immediately faced
certain prevailing secular and anti—clerical prejudices.
Aside from the humanistic disciplines, including the
traditional Greek and Latin, that were to cultivate his
character and intellect, he was taught mathematics and
natural science by a teacher who stressed Darwinism. One

Of his freethinking teachers went so far as to introduce

 

l5

him to David Friedrich Strauss' Life o_f_ Jesus, a book
7

 

 

anathema to orthodox Catholics. As a young boy his
knowledge of German history had been based solely upon a
book written from the Catholic standpoint, now he was to
become familiar with Treitschke.8 This duality between
personal faith and public instruction was further rein—
forced by the fact that during these years Schmitt lived
in a Catholic convent.

With his faith still undaunted he completed his
course of study at the gymnasium, and entered the Univer—
sity of Berlin in 1907, where he intended to study
philology, since like countless members of his peer group
he could decide upon no precise career. As he approached
the university staircase Schmitt made a momentary deci—
sion, accepted the earlier suggestion of an uncle, and
registered with the law faculty.9 There was no indica—
tion of the special talents he would bring to the study
Of law, which would eventually launch him into a highly

successful career with world—wide recognition. After his

first course in Roman law he became fascinated with

 

7Interview by Dieter Groh and Klaus Figge, with
Carl Schmitt, Plettenberg, "Zeitgenossen," Suedwestfunk,
second program, 6 p.m., February 6, 1972.

8Schmitt, E_x Captivitate Salus, .‘E' cit., p. 25.

9Bundesarchiv Koblenz, Akademie fuer Deutsches
Recht, R-6l, Band 64, "Carl Schmitt, Lebenslauf," and
"Zeitgenossen," o_p. cit.

 

 

 

 

vii

 

 

 

 

 

 

 

 

 

l6

jurisprudence; but he would never abandon his deep per-
sonal interests in art, philosophy, and literature.10 His
continual pursuits in these areas allowed him to expand
his own ideas and intellectual horizons far beyond the
limitations of his own discipline. That these widely
diverse intellectual interests added to his creativity and
originality in his legal and political studies is often
acknowledged . 11
At the end of two semesters in Berlin, Schmitt

transferred to Munich and then to Strassburg, where he

received his doctoral degree in law, graduating summa cum

 

laude in June of 1910.12 Although there was nothing

 

unusual about such movement on the part of German under-

graduates, and his preference for the southwest was indi—

cative of his Rhenish disposition, his selection of

 

10Among Schmitt's close friends were Theodor

Daeubler, Robert Musil, Franz Blei, Ernst Juenger, and
Ortega y Gasset. Schmitt himself published a work on

Daeubler's poetry, and a work on Hamlet oder Hebuka: Der
Einbruch der Zeit i3 das Spiel (Cologne, 1954). He also

wrote poetry. See: Carl Schmitt, "Gesang des Sechzig—
jaehrigen," in "Der Fall Carl Schmitt: Charaktermord,"

QaFortschrift, No. 4, January 25, 1952.

llMuth, "Carl Schmitt in der deutschen Innen—
Politik des Sommers 1932," pp. cit., p. 77.

 

lzBundesministerium fuer Justiz Archiv, Bonn,
Reichsjustizministerium, 1877-1945, R-22, "Personal—Akten
Dr. Karl Schmitt, l915,“ Litt. S, No. 4590. BA,
Reichsministerium fuer Wissenschaft, Erziehung HES.
Volksbildung, R—21, Band 144, "Amt W, Personalbogen fuer
Professoren," Mappe 39, "Schmitt." BA, R-6l, Band 64,
Lebenslauf . "

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

l7

Strassburg would prove to be quite important. For like
Heidelberg and Freiburg, the University of Strassburg was
becoming a center of anti-positivist and neo—Kantian
thought, two intellectual currents more compatible with
Schmitt's own spiritual predilections than the materialism
and positivism of the late nineteenth—century. The rector
of the University of Strassburg was Wilhelm Windelband
who, as an exponent of neo—Kantian philosophy, represented
the strong anti—positivist attitude spreading throughout
the various academic disciplines from history to science,
and jurisprudence was no exception. Whether Schmitt was
attracted to Strassburg precisely for this reason is
unknown; but unquestionably that institution exerted a
tremendous influence on his intellectual development. His
pre—World War I works were written from a neo-Kantian per—
spective, and he would always be noted for his uncompro~
mising stand against the positivist school of law.
Beginning with the founding of the Bismarckian
Reich, positivism became the prevailing form of German
legal thought in the latter half of the nineteenth
century. And for law, as was the case with other disci-
plines, this meant an increasing emphasis on observation
and analysis instead of on idealist assumptions or philo—
sophical speculation. It also signified a turning away
from the universalism of natural law and towards law as a

Creation of the individual state. Each of these trends

 
 
 

 
 
 
 
 

 
 
 
 
 

18

was an outgrowth of the general scientific empiricism of a
materialistic, positivistic era and of the triumph of
German national power and sovereignty that followed uni-
fication.l3 German legal positivists such as Paul Laband
argued that law was granted by the sovereign state, and it
was the responsibility of jurists to develop an empirical
and systematic analysis of legal norms as they existed in
statutes, decisions, and practice. Since positive law con—
sisted of the norms created by the power of a sovereign
state that recognized no higher authority, the ethical
principles embodied in natural law theories, which might
conflict with these norms or with the power of the state,
were disregarded.l4

By the early twentieth-century this type of legal
positivism was under attack from several different
quarters. Together with the neo—Kantian response there
had emerged the Free—Law movement (Freirechtslehre) and
various schools of neo—Hegelian thought, each anti—
positivist and idealist in orientation. The neo-Kantian
jurists, best represented by Rudolf Stammler, disputed

the absolute power of the state in establishing "law" or

 

Germany (New Haven, 1928), pp. 47, 56-

14Carl J. Friedrich, The Philosophy of Law fl
Historical Perspective (2nd ed.; Chicago, 1963), pp. 165,
173. W. Friedmann, Legal Theory (3rd ed.; London, 1953),
Pp. 150-151, 159—161.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

l9

"fightfl'they contended that there was a "right law"

ahnm the norms created by the state. This idea of a
"hhflmr" or "right law" was not a return to natural law
thany, and the concept always remained vague, yet it did
cmmahithe precept that "right" or "law" existed prior
toits establishment by the state and that it was not
demaflent upon state power.15 Agreeing that "right law"
dhinot emanate from the state, the neo—Hegelians argued,
Imnmflmless, that it arose from within society itself. Of
Um prominent neo-Hegelians, Josef Kohler held that each
smfiety assumes certain general principles of right and
thatit is the function of jurists to analyze these and

16 The members

dmfive ideals to which laws should conform.
ofthe Free—Law movement, like Eugen Ehrlich, were more
cmxmrned that law be created and administered in accordance
wiU1justice and equity. For this purpose they would allow
ajudge considerable discretion in arriving at different
hmerpretations of higher legal norms.l7
A fundamental question raised by these new schools
ofthought was how to determine when the "right" legal
daflsion had been reached. From the positivist point of

M

15Emerson, State and Sovereignty, gp. cit.,
pp.lS9—l67, 207—208.

. l6Roscoe Pound, Jurisprudence, Vol. I (St. Paul,
Mnun, 1959), p. 167.

 

17Friedmann, Legal Theory, op. cit., pp. 120, 245.

 

.i_..‘_= .9‘ < ‘.A «fir—:7— »._r_; __ -=._‘ -_IL. .

 

 

 

 

 

 

 
 
 
 
 
 
 
 
 

_ J .. .. .. i a... .u \ Hum.

 

20

view, it had been the function of the judge to interpret
the law, or written norms, in strict conformity with the
will of the laniver. With the new emphasis on right law
the positivist notion, that the correct legal decision was
one which adhered to the literal wording of the law, was
totally inadequate. Free—Law advocates were now willing
to permit a judge to ignore the letter of the law where it
did not conform to fundamental principles of justice and

18 But the question still remained as to whether

right.
judicial decisions arrived at in this manner approximated
the dictates of right law.

The young Carl Schmitt was convinced that the
solution to this problem must come from within the legal
profession itself. After publishing his doctoral dis-
sertation on the concept of guilt and the types of guilt,19
he turned his attention to the question of when in the
practice of law is a legal decision right (richtig) . In
his second major publication Gesetz E19. Urteil, Schmitt
stated that the will of the lawgiver, the literal wording
of the law, and even the subjectivity of the judge, all

fail to provide the criteria for evaluating the correctness

 

lglbid.

 

_ 19Carl Schmitt, Ueber Schuld und Schuldarten:
Eine terminologische Untersuchung (Breslau, 1910) .

 

 

 

 

 

 

 

 

 

as."
»

m

 

 

nu

 

21

of a legal deCiSion. 0 Disagreeing With the pOSitiVist

concept of law, he asserted that, "the judge is neither a

legislator nor the mouth of the law."21

A judge cannot
decide strictly in accordance with the will of the law-
giver, since in most cases difficulties arise in deter—
mining the actual will of the lawgiver. Neither can the
precise wording of the law serve as the criterion for a
right decision, because most laws require interpretation.

Similarly, the subjective legal interpretation of a

judge is no guarantee of a right decision. He concluded,

 

therefore, that a legal decision can be considered right
when "another judge" would decide that very case in the
same manner. "Another judge signifies here the empirical
type of modern lawyer trained in jurisprudence."22
According to Schmitt a judge could conceivably arrive at a
decision contrary to the literal wording of a law, and
this decision would still be right, so long as another
judge would decide that case likewise.23

While the extensive prerogative he allowed the

judge in making legal decisions resembled the outlook of

 

20

suchung zum Problem der Rechtspraxis (2nd ed.; Munich,
1969), pp. 8, 22, 73, 101-102.

2llbid., pp. 101-102.

Carl Schmitt, Gesetz und Urteil: Eine Unter—

221bid., p. 71.

 

23Ibid., pp. 111-113.

 

 

 

u.

w
"n

 

 

 

 

 

 

 

 

m.

22

Free—Law thinkers, it was at the same time one of the most
pronounced indications of the new type of legal thought
known as Decisionism, which Schmitt would introduce in the
19205. By Decisionism he meant essentially that a legal
norm has its origins in a pure decision of the one estab—
lishing that norm; thus the norm is born out of nothing.
The norm receives its actuality only through interpreta—
timn and the decision to interpret this norm in a partic—
lflarnmnner and to apply it to a specific situation. In a
state of exception norms can become inoperative and be
replaced by the decisions of the person or group (i.e.,
the sovereign) which actually has the power to control the
situation. Although Schmitt was not as yet a Decisionist
when he published this book, the genesis of his theory
was apparent, if only in the form of crude and unsophis—
ticated ideas. In the forward to the 1969 edition of this
work he states that further reflection led to the recog—
nition that, "the entire field of law is structured not
only in norms, but also in decisions and institutions
(concrete orders) . "24
He was still under the influence of the neo-

Kantians when near the eve of the First World War he pub—

lished a book on the value of the state and the

 

24Ibid., p. l.

 

 

23

significance of the individual.25 Trying to reconcile his

neo-Kantianism and his Catholicism with the power and
authority of the state, Schmitt connected the unquestion—
able, established value of the state with a "higher law."
Standing between right and the individual, the state serves
as the transition point from one world to another, and
through the state right as pure idea (Gedanke) is trans-
formed into right as a worldly phenomenon.26 Owing to

its select function the state receives its paramount
meaning and importance from having the realization of
right as its exclusive purpose. Consequently, there can
be no other state except a Rechtsstaat, and each empirical
state receives its legitimacy from being the first servant
of right. As the personification of right the state has

a unique claim to being the sole Rechtssubjekt.27 State
authority should not be sought in power, though Schmitt
never denies the role of power for a state, but rather in
this special position as the personification and bearer of

right. 28

 

25Carl Schmitt, Der Wert des Staates und die
Bedeutung des Einzelnen (Tuebingen, 1914).

26Ibid., pp. 10, 52. For a provocative interpre-
tation of the contemporary value of Schmitt's right-state—
individual relationship see Rumpf, Carl Schmitt M Thomas
Hobbes, 2p. ci_t., p. 17.

27

 

 

Ibid., p. 53.

 

28Ibid., p. 69.

 

 

 

 

 

 

 

 

 

 

 

w)
"l

 

 

 

 

 

 

 

 

 

24

Within this ethical process Schmitt also saw a
role for the Catholic church, which, because it repre-
sented a universal concept of "right," could determine
what constituted "right" in doubtful cases.29 This
reference to a universal institution or ethic above the
state placed Schmitt in opposition to the neo—Hegelians
who held that right arose from within a society. Erich
Kaufmann, a neo-Hegelian who was to become one of Ger—
many's most outstanding jurists, argued that the state

was essentially power and that the highest "social ideal"

was a victorious war. On the international scene such a

30

victorious war would decide which state is right. After

World War I and after Schmitt had abandoned the ethical
notion of the state, Kaufmann would be very influential
in bringing him to the University of Bonn. Interestingly,
Kaufmann would later become one of the harshest critics of
the unethical nature of Schmitt's future writings and
behavior, though he himself would serve as a defense
attorney at Nuremberg.

In challenging neo-Hegelians like Kaufmann with
ethical principles, Schmitt was not disputing the role of
power in state affairs nor the preponderance of state

authority over the individual. The freedom of the

M

291bid., pp. 44-45, 81-83.

 

30Emerson, State and Sovereignty, 9p. cit.,
PP. 189—192.

 

 

 

 

 

 

 

 

 

 

25

individual was of little concern for Schmitt in comparison
to the higher purpose allotted to the state. The signifi-
cance of the individual should be evaluated only in terms

31 Neither right nor

of the moral purpose of the state.
the state ends in the individual, or finds its fulfillment
and perfection in the individual.32 Schmitt believed that
he was living in an anti-individualistic age, yet a great

e.33 And since the state in fulfilling its purpose

ag
through the realization of right cannot tolerate opposi—
tion within itself, "no individual can have autonomy

"34

within the state. One could consider the freedom of

the individual only in the context of the state as a
Machtkomplex, and not as the manifestation of Rechtsgedan—
k_en. So long as it remains a question of the Rechts—
philosophische construction of the state, or the individ—
ual, only the ideals and purpose of the Rechtsstaat are of
consideration; the material advantages to the individual
could not properly be handled either by law or

philosophy. 35

 

31Schmitt, Der Wert, p. 86.

 

321bid., p. 11.

33

 

Ibid., p. 6.

 

34Ibid., p. 101.

 

35Ibid., pp. 99—100.

 

 

26

By placing the state as an ethical agent into one
category and the state as a power complex into another
Schmitt sought to reach an accommodation between his
ethical beliefs and his nationalism. Despite his attempt
to mollify the Machiavellian approach to the state per—
petuated by the heirs of Treitschke and the neo—Hegelians,
he still reserved a crucial role for the state and he
never criticized the existing power structure in Germany.
No doubt Schmitt was sincere both in his ethical concerns
and his nationalism, but his unconditional acceptance of
state power also signified a typical conformity to the
academic and bureaucratic professions of that age. Aside
from exceptions like Max Weber, the German academic pro—
fession which Schmitt was about to enter had embodied
the strongest and most vocal nationalistic sentiments by
the end of the nineteenth—century, with numerous pro—
fessors lending their support to the Pan-German League.36
Non-conformity carried a heavy penalty as exemplified by
the cases of those denied academic chairs for religious
or political reasons, as was the situation with Georg
Simmel and Robert Michels, a Jew and a Socialist respec—

tively. And things were not much better for Catholics, as

 

Th_e National Tradition g Historical Thought from Herder
Qty: Present (Middletown, Conn., 1968), pp. 146—147.
Fritz Ringer, The Decline of the German Mandarins: The

_._——____—__._.—_——_————__..

German Academic Community, 18921913 (Cambridge, Mass.,
1969), pp. 114, 127, 139.

 

 

 

 

 

 

 

 

 

 

 

 

27

shown by the dispute in 1901 over the appointment of
Martin Spahn to a Catholic chair of history at Schmitt's
own University of Strassburg. For a young Catholic like
Schmitt, intent upon a career in the bureaucracy or the
university, it was wiser to conform. In pursuance of such
a career he had entered the Prussian civil service in 1910
as a junior barrister (Gerichtsreferendar) in Duesseldorf,
occupying that post until he passed his state Assessor's
examination in 1915.37

That Schmitt, at this point in his career, never
involved himself in politics and made no public expression
of nationalistic zeal was due in part to his lack of
political consciousness. It might also be taken as further
indication of his unwillingness to compromise his future
through political complications. For the basic assumption
that professors would stand above and aloof from active
politics also typified the era of the so-called "apolitical
professor." They supposedly discharged their academic
duties as the highly revered representatives of pure

Wissenschaft and were not to meddle in the vulgarity and

 

partisanship of politics, albeit their obligation included

the stimulation of ideas concerning "Staat und Recht.“38

 

 

 

37BJA, R—22.

38Hans P. Bleuel, Deutschlands Bekenner: Pro-—
fessoren zwischen Kaiserreich und Diktatur (Bern/Munich,
1968). pp. 5'4—55, 65—6‘6—. '— _ ' '

 

 

 

..,

 

 

 

 

 

 

~I

u \
a».

 

 

 

 

28

Even in later life Schmitt would refuse to join a polit—
ical party.

The power political aspects of the state, of
course, attracted the attention of Schmitt and his neo-
Kantian peers, but it remained in a separate category,
since Macht as a phenomenon could not be discussed in moral

terms.39 Gradually he would disavow the nee—Kantian

 

principle of the primacy of “right before the state.“40

The entire relationship of right-state—individual, as
described by Schmitt, consisted of little more than a
brief theoretical sketch or model relating a pre—conceived
belief in the moral purpose of the state. Only his belief
in the central importance of the state, without regard to

its moral purpose, provides a continuity from Der Wert to

 

Schmitt's future political writings.

Although these pre—war writings contain no sys—
tematic theory of Decisionism similar to the theory
expounded by Schmitt during the Weimar Republic, the
genesis of several of his fundamental Decisionist ideas

does occur in Der Wert and in Gesetz und Urteil. His

 

early fascination with the concept and process of
decision—making discloses many traits of his later ideas

and tendencies. Even in these early works he places

 

39Ibid.
40

 

Schmitt, Der Wert, p. 52.

 

 

m1

 

 

 

 

   

 

 

29

special emphasis on the interpretation of the judge,

whereas the positivists stressed the concept of law as
command of the lawgiver applied to individual cases.41
Schmitt consistently argued that the decision of a judge
must be based on the circumstances of a concrete case, and
not strictly on the abstract nature and wording of the

42

law. No law, he believed, could apply itself to a par—

ticular case. On the contrary only men can be designated
as the interpreters, enforcers and defenders of the law.43
These ideas were certainly pointing Schmitt in the
direction of a new type of legal thought, but before World
War I he was one promising young lawyer and academician
among many in the Wilhelmian academic and bureaucratic
systems; his ideas reflected quite unmistakably the values
of his profession and of his times. The Wilhelmian state

reached its height of power and prestige, and Schmitt

accepted with naive and unyielding confidence the View of

“Schmitt, Gesetz und Urteil, pp. 22, 71. Hans
Kelsen's Hauptprobleme der Staatsrechtslehre: Entwickelt
aus der Lehre vom Rechtssatze (Tuebingen, 1923) , is a good

against.

42Schmitt, Der Wert, pp. 78—79.

 

43Ibid., p. 83. Schmitt‘s contention that one law
cannot protect another law is stated here only in a very
general manner, but it becomes a basic concept in his
interpretation of the defender of the Weimar Constitution.
See Carl Schmitt, Der Hueter de_r Verfassung (2nd ed.;
Berlin, 1969) I p. 4—0—.— "Ein Gesetz kann nicht Hueter eines
anderen Gesetzes sein."

 

 

 

 

...:,

u

 

 

30

its moral purpose so widespread among his colleagues.

Most of his efforts he devoted to obtaining his academic
credentials, acquiring practical legal experience, and to
establishing himself within the academic profession through
publications. Law and the philosophy of law provided the
main focal point of his professional interests. But as
did many of the young intellectuals of this period he
experimented with the new ideas in philosophy, psychology,
and law.44 Nothing existed in the pre—war Carl Schmitt's
behavior to indicate his future inclinations towards
politics and his enchantment with the role of power. His
life at this time was rather uneventful.

The sudden outbreak of World War I, the ensuing
four years of catastrophic conflict and slaughter, climaxed
by the utterly disillusioning defeat of Germany, forced a
maturing Schmitt to abandon his neo—Kantianism in favor of
power politics. The stability and power of the Wilhelmian

state would contrast sharply with the upheavals and

44Schmitt was immediately attracted to the works

of Freud and Vaihinger. See Gesetz E19. Urteil, pp. l4, l9,
26, 37, and Carl Schmitt, "Juristische Fiktionen,“

Deutsche Juristen-Zeitung, Jhg. XVIII, No. 12 (June 15,
1913), pp. 804-806. Heinrich Muth even suggests that
Schmitt's misunderstanding of Vaihinger's concept of A15
O_b is one of the major defects in Schmitt's thinking.-_See
Muth, "Carl Schmitt in der deutschen Innen-Politik des
Sommers 1932," op. cit., pp. 143—144. Schmitt also pub-
lished an articIE oWSchOpenhauers Rechtsphilosophie
ausserhalb seines philosophischen Systems," Monatsschrift
mi Kriminalpsychologie un_d Strafrechtsreform, Jhg. X,
Heft 1 (April, 1913), pp. 27—31.

 

 

 

 

 

 

 

 

 

 

 

 

«

 

 

31

perennial crises of the next half century of German his—
tory. To a great extent this loss of stability accounted
for the change in Schmitt‘s emphasis from the ethical pur-
pose of the state, to an even stronger stress upon the
themes of order, peace, and security.

In August 1914, a generation of German youth went
forth to the battlefields with the intention of coming
home before the leaves fell. This was the so—called
"front-generation," born after 1890, whose "war experience"
provided them with a common set of ideals, values, frus-
trations and disappointments. A solid core of the
National or Conservative Revolutionaries of the Weimar
period emerged from this generation.45 Although Carl
Schmitt's age places him with this war generation he did
not go off to war in the autumn of 1914, and his own war
experience showed some unique traits. He never served at

the front and this fact separated him from those of his

contemporaries who actually fought in the trenches and

who developed close psychological and political bonds

based on their common sufferings. Schmitt managed to

 

45Klemens von Klemperer, Germany's New Conserva—

tism: Its History and Dilemma i_n the Twentieth Century
(Princeton, 1957) , pp. 47—59. Armin Mohler, Die Kon—
Servative Revolution i_n Deutschland, 1918—1932: Grundriss
1hrer Weltanschauungen (Stuttgart, 1950), p. 177.
46Schmitt's war experience later provided the

National Socialists with an issue for both praise and

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

m.

 

 

 

up

32

delay his entry into the military until passing his final
Assessor's examination in Berlin on February 15, 1915.47
The following day he enlisted as a volunteer in the
reserve infantry battalion of the prince's regiment, then
eventually he was transferred to the service of the
General staff in Bavaria}!8 This military activity by no
means completely interrupted his progress within the aca—

demic world. In February 1916, he received his Habili—

tation at the University of Strassburg, and was later

 

granted an extended military leave of absence to lecture

there during the summer semester of that year.49 His

final assignment brought him into the Commandant's Office

for the city of Munich beginning in May of 1919, where

criticism, depending upon their changing official estima—
tion of him. Enthusiastic about his entry into the party
in 1933, they wrote that, "es fuer die ganze weitere
Lebensarbeit von Carl Schmitt entscheidend geworden, dass
er den Weltkrieg gegen Deutschland . . . erlebt hat." X,
"Der grosse nationale Staatsrechtslehrer Professor Dr.
Carl Schmitt an die Koelner Universitaet berufen!"

Westdeutscher Beobachter, Jhg. 9, No. 9 (May 11, 1933),
p. 3. But when attacking Schmitt in 1936 the SS quickly

noted that he was writing a literary work while the best
part of German youth was bleeding at the front. X, "Es
w1rd immer noch peinlicher," Das Schwarze Korps, Folge

50 (DeC. 10, 1936), p- 2.

 

 

47
_ BA, R-6l, Bd. 64, "Lebenslauf," BJA, R—22,
Litt. S, No. 4590.

48
_ Bayerisches Hauptstaatsarchiv, Munich, Abt. II,
Kriegsarchiv, Rangliste _I_, Stellvt. Gen. Kom. _I_ Armee
Korpsl "Kriegsstammrollen 22," No. 89.

49

 

 

Ibid., and BA, R-21, Bd. 144, Mappe 39.

 

 

 

 

 

 

..,

 

 

(W,

 

 

 

33

he personally lived through the rise and repression of
the Bavarian Soviet Republic.50
The non-combatant nature of Schmitt's military duty
isolated him from the common experiences of the front
generation, but not entirely from the conservative reaction
to the war often associated with the "ideas of 1914."
After the Muenster sociologist, Johann Plenge introduced
the concept, the "ideas of 1914" provided German conser—
vatives with an intellectual explanation and justification
for the war. From Plenge's original claim that the
Germans were waging a war against the liberalism of the
eighteenth-century there developed among conservative
intellectuals the attitude that the war was actually a
struggle of conservatism against bourgeois culture, of
religion and spirituality against materialism, of tradi—
tional values against modernity; it was a conflict with
the nineteenth-century. Some, like Thomas Mann, saw the
struggle in moral or ideological terms; this rejuvenated
conservatism represented for him a spiritual quest, a
search for "absolute values." Others, such as Max Scheler
and later Ernst Juenger, placed a value on the conflict
itself, as an inner experience that would revitalize the
nation. To those more politically oriented the "ideas of

R“.—

50BA, R—6l, Bd. 64, "Lebenslauf."

 

 

 

 

 

 

 

 

 

'J

 

 

34

1914“ offered a convenient justification for German power
and the annexationist war aims of Mitteleuropa.51
With one aspect of the growing neo—conservative
movement, the reaction against the materialistic bourgeois
world, Schmitt expressed a clear intellectual affiliation

52 Daeubler's

in his book Theodor Daeublers "Nordlicht."
own life, like his poetry, was decisively influenced by

an inner personal conflict between liberal Enlightenment
values and Catholicism. This conflict between materialism
and spirituality was the main theme of the poems he pub—
lished under the heading Nordlicht. Most of the ideas,
themes, and most notably the tone, of Schmitt's interpre-
tation of Daeubler, reflected the anti-bourgeois, anti-
liberal, and irrational spirit of the "ideas of 1914."53
Among Schmitt's generation the war fostered a pressing
search for faith and tradition in an age of secularization

and modernization.54 In this spiritual search Schmitt

found solace and relevance in Daeubler.

 

lKlemperer, Germany's New Conservatism, _op. cit.,
pp- 47—69-

52Carl Schmitt, Theodor Daeublers "Nordlicht":
Drei Studien ueber die Elemente, die Geist und die
Aktualitaet des Werkes (Munich, 1916) .

S3Klemperer, Germany's New Conservatism, gp. cit.,

P. 54.

54Ibid., pp. 6-7.

 

 

 

 

 

 

u
u

a“

 

35

The religious minded Schmitt could easily relate
to the spiritual and Christian motifs in Daeubler's
poetry. For him the real significance of Nordlicht lies
in its symbolic relationship to "das geistige Problem
Europas." Nordlicht is the poem of the occident, sig-
nifying a crude, spiritless and inartistic world.55 This
spiritless world Schmitt describes as an age that "has
designated itself as capitalistic, mechanistic, relativ-
istic; as an age of traffic, technique, and organization."
Operation (Betrieb) rather than spirit or meaning is the
key to the age, with "operation as some grand and func—
tioning means to some miserable and senseless goal."56
An age of enormous material prosperity has emerged, but
men have become poor devils. A true symbol of the poverty
of the age is that men know everything but believe in
nothing; they are interested in everything but enthusiastic
about nothing. Men strive to build their heaven on earth
and view this heaven merely as the result of commerce and
industry, with Berlin, Paris, and New York as their
heavens and their holy book the roadmap. They do not
want a loving and merciful God, for they themselves have

produced such astonishing things.57 The contradiction

 

55Schmitt, Nordlicht, pp. 63, 69.

56Ibid.

 

57Ibid., pp. 64—65.

 

 

36

of the age, mechanism versus spirit, and "an eschatalogical

dread had seized many even before the horrors of the World

War became a reality, as the last and most important

things were secularized.58

"Right was transformed into
power, faith into calculation, truth into a general recog—
nition of accuracy, beauty became good taste, and Christian—
ity took on the form of pacifistic organizations. In place
of the distinction between good and evil there appeared a
sublime difference between usefulness and destructive-

ness. "59

1.60

The essential problem is that the age lacks a
sou
Strong religious beliefs obviously account in part
for Schmitt's reaction against the prevailing process of
secularization. More noticeably, he suffered from an
increasing pessimism and disillusionment caused by the
war. Here, in Schmitt's wartime critique of a soulless
age of materialism, lies his affinity with the "ideas of
1914," and the frustrations of his generation. Neverthe—
less, Schmitt's book should not be considered as a piece

of wartime propaganda, which presented the war as a

 

581bid., p. 68.

 

591bid., p. 65.

 

60Ibid., p. 69. A similar tone still exists in
Schmitt's last book, where he discusses in part the con-
Cept of a never ending process of progress. See Carl
Schmitt, Politische Theologie _I_I: _D_i_e_ Legende m der
Erledigung jeder Politischen Theologie (Berlin, 197W,
PP. 124—126.

 

 

37

struggle between a higher German culture and the
mechanistic-materialistic civilizations of her enemies in
the West. Although many German intellectuals saw the
"ideas of 1914" from this point of View, Schmitt made no
distinction between Germany and the rest of Europe, since
he believed that both suffered from the spiritless
mechanization of life.

Along with evoking these lamentations over a
faithless age, the war brought Schmitt to a greater
awareness of the realities of power and stirred within
him an abiding interest in politics. During the war he
published two articles on subjects which subsequently
reoccur as the central themes for many of his later polit—
ical and legal writings, the problem of dictatorship and
the state of exception (Ausnahmezustand) .61 As with most
of his writings he selected an opportune time to discuss
these problems. The Prussian state—of-siege law of 1851,
and the Bavarian state—of—war law of 1912, took immediate
effect upon the outbreak of hostilities and instituted
martial law in Germany for the duration of the war.

Likewise, Schmitt displayed a certain adroitness, charac—

teristic of his later writings, in selecting a rather

 

6lCarl Schmitt, "Diktatur und Belagerungszustand:
Eine staatsrechtliche Studie," Zeitschrift fuer die
gesamte Strafrechtswissenschaft, Bd. XXXVIII, Heft—2
(1916), pp. 138—161; and "Die Einwirkungen des Kriegszus—
tandes auf das ordentliche strafprozessuale Verfahren,"
ZjiSJ Bd. XXXVIII (1917), pp. 783—797.

 

 

 

 

 

 

 

 

 

 

 

 

 

38

unique approach to old or controversial problems. By
applying this special talent to the existing situation
in Germany he concluded that it would be historically
inaccurate to equate martial law with dictatorship.62
A state-of-siege situation (Belagerungszustand) , from his
perspective, did not constitute a dictatorship and should,
therefore, signify no exception to the constitutional
separation of powers.

A governing military commander in a state—of-war
situation maintains extensive and increased executive
powers, but he exercises no complete legislative authority,
i.e., he does not execute laws which he himself has
decreed. Although there exists a concentration of power
in the hands of the executive or the military commander,
the separation between legislative and executive authority
continues to prevail. Under a dictatorship there remains
a distinction between the legislative and the executive
powers, but the separation of powers is eliminated. The
dictatorial powers of concurrently decreeing and executing
laws become concentrated in the same position, whether
the executive also assumes the legislative powers or the

. . 63
legislature the executive powers.

*‘§——_——.——————

62Schmitt, "Diktatur," p. 139.

63Ibid. , p. 156.

 

 

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.9,

 

 

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s.

 

 

 

39

In a state-of-war situation the military commander
assumes increased powers in order to achieve certain
crucial objectives. And though this could include the
removal of some legal restrictions which might hinder the
attainment of these crucial objectives, the institution
of subjective laws under no circumstances falls within the
prerogative of the military commander. A concrete,
existing danger necessitates an area free from legal
restrictions, in which the military commander is allowed
to utilize any means he deems appropriate to meet this
danger. Acting only with executive powers, he employs
concrete measures (Massnahmen) as a means to a concrete
and specific end, without the hindrance of legal restric—
tions.64 Such state-of—war decrees either pertain to the
means to quell domestic unrest and disorder through police
measures, or to the means to achieve a military goal such
as securing a smooth process of mobilization. Each of
these cases involves a problem or threatening danger from
within the state.

If the danger arises from without, other means
than the measures taken under a state-of-war situation

must be immediately instituted. The new problematical

 

64Ibid., pp. 158-159. The concept of measures
(Massnahmen) as opposed to the concept of laws (Gesetze)
is extremely important in understanding Schmitt'?“
writings during the Weimar Republic, especially concerning
the powers of the Reichspresident.

 

 

 

(.

 

 

 

 

 

 

~.

 

 

 

40

simmthx1of external danger often necessitates a dictator
and the removal of the constitutional separation of powers.
Asa.resu1t the executive and legislative powers are con—
canmated in one position, because the external danger
remflres that those in command be authorized to decree
laws(Gesetze), and not merely measures (Massnahmen), and
u>execute these laws in accordance with the changing
demands of the situation.65
Schmitt concedes that some limitations on the
auflxmity of the military commander continue to exist.
TheIMlitary commander cannot suspend the principles of
um Rechtsstaat.66 He can, for example, after suspending
conmfitutional laws, still find his limitations in the
independence of the judicial powers. By suspending the
mnmtitution the military commander might expedite a
legal case, but he cannot punish. For he is not author—
ized to interfere with the legal decisions of the state,
amican only demand or inhibit the execution of its

decisions.67

It remains unclear in Schmitt's analysis
Mmther these limitations on the military commander are

almapossible under a dictatorship.

 

651bid., pp. 160—161.

66Ibid., p. 149.

 

67Schmitt, "Einwirkungen," pp. 796—797.

 

 

 

 

 

 

 

 

41

The non—ethical application of state power in time
of war had most certainly had its impact on the formerly
neo—Kantian Schmitt. Still clinging to the principles of
the Rechsstaat, he shows a new awareness of the reality of
power, realizing that the war had created a tremendous
centralization of power in the executive. The Rechtsstaat
now appears reduced to a legal or constitutional state,
since Schmitt no longer refers to the ethical purpose of

the state as expounded in his pre-war book Der Wert.

 

Concrete danger, or the term he later utilizes most fre—

rather than ethical

purpose dictates the actions of the state.68 He concerns

quently, the "concrete situation,‘

himself mainly with the manner in which one applies state
power to meet these concrete dangers and necessities, and
he attempts to provide some historical and legal per-
spective for these issues.

It is in this respect that these first articles
on dictatorship serve as transitional works for Schmitt.
Many of the central ideas embodied in these articles,
including the state of exception, and the distinction
between laws and measures, later arise as integral parts
of his political and legal theories. Even the renowned
and highly controversial theory of dictatorship so closely

associated with the name Carl Schmitt, emanates in part

 

68$chmitt, "Diktatur," pp. 147, 159.

‘V‘

 

 

 

 

 

 

_ n.

u

42

frmnthese two works. The distinction between a Com—
IMssarial Dictatorship and a Sovereign Dictatorship is
notclearly developed by him before 1921, but this dis-
thmtion does bear a striking resemblance to his wartime
categories of the powers of a military commander under
nurtial law and those of a dictator. Carl Schmitt's
attraction to these wartime problems foretells the tenor
oflfls future work and activity. Many of his more influ-
mmial publications in the Weimar Republic deal essen-
tiaUy with the extent to which laws, and even the con-
stiunion itself, could be suspended in order to meet an

enmflng danger and to reestablish a normal state of

affairs.

 

 

 

a...
4m

 

._.
‘ n
W

"M
“H

CHAPTER II
THE YEARS OF INSECURITY, 1919-1922: THE
DEVELOPMENT OF CARL SCHMITT'S
POLITICAL CONSCIOUSNESS

Germany's demoralizing defeat and the proclamation
of the republic, followed by years of domestic upheavals
and civil war, were agonizing times for Carl Schmitt. As
a nationalist he found it difficult to reconcile himself
to a defeat aggravated by such a humiliating and oppressive
peace. Domestic events evoked equal reactions of dismay
and incertitude from Schmitt. The Wilhelmian state, in
whose bureaucracy he served and to which he owed his
loyalty, capitulated to republican, democratic and even
socialist revolutionary forces. An unstable republic
with doubtful legitimacy and authority replaced the most
powerful state in German history. The continued existence
of the republic remained uncertain and its future political
direction left Schmitt in bewilderment. Unlike its pre-
decessor, to which Schmitt once attributed an ethical pur—
Pose, the early republic lacked clearly established centers
and patterns of authority.

Complicating the confusion and more disturbing to
the conservative and Catholic Schmitt was the example of a
successful Bolshevik revolution in Russia, which

43

 

 

 

 

 

 

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....

 

.n
w.

 

. 1
w

 

 

44

encouraged threatening attempts at socialist and conmunist
revolutions throughout Germany. Most of Schmitt's military
duties kept him in Munich, where he personally experienced
the short-lived Bavarian Soviet Republic and its brutal
repression in 1919. Along with a majority of the Bavarian
middle classes, Schmitt reacted very strongly against the
excesses and violence of this abortive Soviet experiment.
When finally released from the military on July 1,
1919, Schmitt could not return to Strassburg to continue
his academic career. What previously appeared as a highly
promising career for him as a professor of law or as a
civil servant in the Prussian bureaucracy suddenly became
questionable. He had lost his academic position as Dozent
at the University of Strassburg when it closed on
November 11, 1918; subsequently it was restored as a
French institution after the Versailles Treaty.l His per—
sonal fate depended upon the changing course of events and
in these early years his own future remained as doubtful
as that of the republic. This perplexing turn of events
and shocking personal experience forced Schmitt to reeval-
uate his entire political and intellectual outlook.
Fortunately Moritz Julius Bonn assisted Schmitt in

acquiring a lectureship at the Munich Handelshochschule

 

lBA, R—6l, Bd. 64, "Lebenslauf."

 

 

 

 

 

 

 

 

45

in September of 1919. This marked the beginning of a very

close friendship which, in spite of their often opposing

political viewpoints, endured until the end of the Weimar

Republic.2 Schmitt retained his academic position in

Munich until October 1921, at which time the University

of Greifswald offered him a professorship of public law.3
During the period of uncertainty surrounding the

establishment of the republic, the civil war, and

Schmitt's search for a permanent academic position, he

conceived of two of his more renowned books, Politische

4 And each book bears a direct

Romantik and D_i_e Diktatur.
relationship to the political and social upheavals of the
period, as well as to Schmitt's self-evaluation of his

own political position. The title of the first book,
Politische Romantik, indicates the new dominant trend in
Schmitt's interests—-politics. It is also of significance
that he conceived and wrote this book amid the instability
and chaos of Germany in 1919. For this year brought

about a major turning point in Schmitt's thinking. The

war and the German revolution had impressed upon him the

necessity of politics. Many of his more important

 

2BA, Nachlass Moritz Julius Bonn, Nos. 48—50, 56;

and Moritz Julius Bonn, So Macht Man Geschichte: Bilanz

 

Eines Lebens (Muenchen, 1953), pp. 330—332.

3BA, R—21, Bd. 144, Mappe 39.

4References are to the 1925 edition of Politische

3933535, and the 1921 edition of Die Diktatur.

 

 

 

 

«v

 

 

 

 

 

 

 

 

n,

 

 

 

 

 

46

publications thereafter would concern politics in con—
trast to his pre—war writings, where for the most part
he totally neglected politics.

A highly interpretive historical and philosophical
work, Politische Romantik contains an unusual critical
analysis of the political nature of Romanticism. Schmitt
noted that many scholars have viewed the romantic move—
ment as revolutionary, while others have presented it as
conservative or reactionary. Both interpretations Schmitt
regards as incorrect, because Romanticism constitutes for
him neither a politically revolutionary nor a conservative
or reactionary movement.5 In fact, "politics is as
foreign to him (i.e., to a political romantic) as is
morality or logic."6 "Where political activity begins
political Romanticism ends."7 A romantic cannot maintain
or advocate a continuous or definite political position,
whether revolutionary or conservative, since he lacks the
ability to decide for himself what appears to be right.8

The desire to be productive without becoming

active is the essence of the political romantic.9 But

 

5Politische Romantik, p. 14.

6Ibid., p. 205.

 

71bid., p. 224.

8Ibid., p. 207.

9Ibid., p. 223.

 

47

Schmitt draws a clear distinction between this type of
political romantic and a romantic politician. He con—
ceives of the latter as, "a person, who although he is
not essentially a romantic, can still be motivated

through romanticized ideas."lo

The immortal type of
romantic politician Schmitt sees in Don Quixote, a man
capable of distinguishing between what appeared to him as
right and wrong, and thus able to reach political deci-
sions. Karl Ludwig Sand's assassination of Kotzebue in
1819, Schmitt cites as an actual example of a romanticized,
yet politically motivated act.11
The very nature of the political romantic, as
interpreted by Schmitt, precludes such political activity,
since he defines Romanticism as "subjective occasionalism."
Everything exists merely as an occasion (Anlass) or
opportunity for the productivity of the romantic.12 God,
who formerly provided a universal absolute and objective
standard, no longer stands in the center, but is super—
seded by the individual subject, who treats the world
only as an occasion for his own intellectual performance

13

and artistic productivity. There exists no absolute

Rm

lOIbid., p. 205.

llIbid., pp. 205—207.

 

lzIbid., p. 23.

 

13Ibid., pp. 107, 110—111, 138.

 

 

m

{EH

rife!

if as
Hit

491

48

vmnnge point or frame of reference, other than himself,
miwhich the romantic can base his decisions. Society and
Instory, cosmos and humanity serve only as potential
mmasions for the productivity of this genial "Ich." The
dfiect itself, whether political or not, provides only a
nahneless, functionless concrete point around which the
nmmntic game of imagination is suspended.14
With the loss of God as an absolute new frames of
reference, or what Schmitt called "new worlds," continually
appear; but these are only "occasional worlds" utilized by
um romantic as vehicles for his own romantic productivity.
Consequently, Romanticism reveals a remarkable capability
of associating itself with the most varying political con-
dfljons and contradictory philosophical viewpoints. While
Um revolution triumphed Romanticism appeared revolutionary,
at Um end of the revolutionary period it became conserva—
UNe,and after 1815 even closely associated with a very

remnfionary restoration.15 Schmitt presents Adam Mueller

aS'Um clearest representative of such political roman-

. . 1
t1Cl$m 6 Mueller's treatment of the world as a mere

Subjective occasion for his own romantic productivity
Sdmutt infers from the fact that in Goettingen Mueller

\—

14 _
Ibid.
15

 

Ibid., pp. 160-161.

 

16Ibid., p. 182.

 

ml
.3 s

an);

Sim
1M]

=1 u;

in

49

became an Anglophile, in the feudal milieu of Berlin
extremely feudal, and in the clerical circles of Vienna
very clerical. Unlike Sand or Don Quixote, "the most
important sources of political vitality, the belief in
right and indignation over wrong, did not exist for
him."17 Mueller's romanticism prevented him from making
moral and political distinctions, and he always stood in
the service of some other unromantic energy, whether con—
servative or revolutionary.

This harsh criticism of Mueller was one indication
of Schmitt's intellectual self-evaluation in response to
the changing political conditions around him. Before
starting to write this study Schmitt had idealized Adam
Mueller and the romantics. Now he condemned Mueller as
an Opportunist devoid of all moral values. That change of
attitude on the part of Schmitt was due more to the
chaotic circumstances of 1919 than to any scholarly
analeis of Mueller. At this time Schmitt found himself
in a Similar situation to that of the early romantics, and
as a result he wrote Politische Romantik in an effort to
define his own intellectual position. Some scholars,

including Meinecke, who considered the book as one of the

most Significant publications on Romanticism in decades,

K—

17Ibid., p. 177.

 

u
44‘

.mi

35355

‘11

50

underestimated Schmitt's personal relationship to his own

thesis.18

At the end of the First World War Schmitt wit-
mmsed a rapid and unexpected change from a conservative,
auflxmitarian regime to a revolutionary situation, and
fhmlly the rise of a new political order. Nonetheless,
1m refused to follow the example of the political
nmmntics and treat the world as merely a changing sub—
jedfiye occasion for his own intellectual productivity.
As alflstoricist Schmitt believed in the uniqueness of
lustorical events, but he still held firm to the opinion
thm:one must maintain some basis on which to make polit—
nml and moral distinctions. An intellectual must be
capMHe of separating himself from purely aesthetic and
amjstic productivity and be prepared to make definite
mflitical decisions.19 Schmitt felt that he must try to
awfid the moral remissness inherent in the subjective
occasionalism of the political romantics. He could not
wand by without making political and moral distinctions
rfifirding recent developments in post-war Germany.

This book contained nothing specific about what
antude Schmitt actually held towards the new republic.

M

18 _ . . -
Friedrich Meinecke, "Politische BQTEEEiE von'
Dr. Carl Schmitt—Dorotié (1919)@ WI

Band cxxr (1920), pp. 292-296.

19Schmitt interview, July 13: 1973-

 

51

We receive instead only the general impression of an
individual in the midst of a personal intellectual crisis,
making a firm commitment to become political. The war,
the Russian and German Revolutions, and more directly
the events he personally witnessed during the Bavarian
Soviet Republic, had convinced him that politics cannot be
neglected. But he realized that political decisions must
be based on some firm intellectual foundation. With
Adam Mueller in mind Schmitt rejected the idea of placing
himself at the disposal of the new political trends cur—
rently dominant, and he decided to draw his own political
distinctions according to what he considered right and
wrong. Carl Schmitt had disassociated himself from polit—
ical Romanticism, as he had interpreted it.

The topic of Schmitt's as Diktatur, published in
1921, reveals more exactly the nature of his growing
political concern in the years after 1919. He saw the
domestic political stabilization of Germany and a return
to normalcy as the first priority. The political and
social upheavals of the early republic allowed no oppor—
tunity for internal stabilization; and not only the
republic but Germany as a state often reached the verge
of political disintegration. After the formation of the
republic, there came the repression of the Independent
Socialists and Spartacists by the Free Corps in 1919, the

Kapp Putsch and general strike of 1920, and leftist

 

me

till

stud
file
321
:3 6
ie

fact

52

attempts at revolution in the Ruhr, combined with a
variety of other domestic disorders. These events in
many cases involved nothing less than civil war, which
alarmed Schmitt considerably.

But although he desired the restoration of order,
peace and stability Schmitt neither advocated a restoration
of the old Reich, nor the destruction of the Weimar
Republic and its constitution in favor of a dictatorship.
% Diktatur clearly shows that at this time Schmitt had
accepted the Weimar Republic and its constitution as the
legally constituted authority in Germany. Nowhere in this
study does Schmitt even suggest the restoration of the old
Reich or the establishment of a German dictatorship.
Schmitt believed that a new political and legal order had
come into existence once the German people had accepted
the Weimar constitution. He reconciled himself to that
fact and transferred his loyalty to the new regime. This
set a pattern for much of his future political behavior;
he would always obey the legally constituted authority.
The only political thesis contained in Di_e Diktatur rele—
vant to Germany in 1921, pertains to securing the Weimar
Republic through the use of its constitutional emergency
powers.

Schmitt's actual political position notwithstand—
ing, critics have often misinterpreted this book due to

its title, Schmitt's later political activity and

 

32E

ill

2:15

bill

In

53

writings, and the rise of the Nazi dictatorship. Most
critics of this book in fact usually refer to the second
1928 edition, which includes a corollary on the Dictator-
ship of the Reichspresident under Article 48 of the Weimar
Constitution. When Schmitt published the first edition of

his work he was still a young, and relatively unknown
professor. The book, of course, did add to his recog-
nition within the academic and legal professions, and the
intellectual community in general, but it had no political
influence at the time.

D_ig Diktatur falls into the category of a his—
torical and theoretical study of the nature of dictator-
ship from ancient Rome to the establishment of the Weimar
Republic, rather than of rightwing political propaganda.
The origins of this book can be detected in two separate
yet related areas of Schmitt's own experience. His war—
time interests in the Belagerungszustand as represented
in his two articles on martial law and dictatorship pro—
vided the basic theoretical groundwork for this study.
Many of the fundamental ideas in these articles appeared
in a revised form as part of his theoryof dictatorship.
His early distinction between martial law and dictator—
ship he transformed into the distinction between a Com—
missarial and a Sovereign Dictator. And the distinction
between laws and measures acquired even more importance

When Schmitt applied these concepts to the power of the

 

.190

3270

it
zeal

54

Reichspresident under Article 48 of the Weimar constitu-
tion.

The second and more immediate origin of Schmitt's
theory stemmed from the unexpected Russian and German
Revolutions, and the ensuing civil war in Germany.
Schmitt's interest in the legality and legitimacy of a
newly created political order had already been aroused by
the successful revolution in Russia and the alleged
establishment of a Soviet dictatorship of the proletar-

20 The German revolution and the creation of the

iat.
Weimar Republic had a similar effect, but added a new
dimension to the problem as a result of the upheavals and
civil war which plagued the early republic.

Schmitt devotes almost the entire book to tracing
the concept and nature of dictatorship historically. He
points out for instance that the humanistic writers of
the Renaissance held a similar view of dictatorship to

that of the ancient Romans. A dictator was appointed by

the Roman Consul at a time of danger either to conduct a

 

20The Russian Revolution also inspired a rejuven—

ated interest among other scholars regarding Marxism and
the dictatorship of the proletariat. See Hans Kelsen,
Sozialismus un_d Staat: Eine Untersuchung _Dgr Politischen
Theorie _D_e_s_ Marxismus (rev. 2nd ed.; Leipzig, 1923) ,

pp. 65—80, 150-152, 158-165, 172—175. Kelsen first pub—

lished this work as an article in Archiv fuer die

 

 

in?

.‘ME

55

. 21 . .
war or to suppress a domestic revolt. "The dictator is

not a tyrant and the dictatorship is not an absolute form
of rule, but rather an exclusively republican and consti-

"22 He could not

tutional method of preserving freedom.
change existing laws, abolish the constitution and system
of government, or make new laws. This historical practice
represents only one form of dictatorship, however, which
Schmitt defines as a Conmissarial Dictatorship. The
Commissarial Dictator is always the action commissar of
the pouvoir constitué.23 He derives his authority from

a constitutional organ and he retains his title only

within the existing constitution.24 His appointment lasts
for the duration of the crisis and during that time he

may, if he deems it necessary, temporarily suspend cer-
tain laws and even the constitution in order to bring

about a normal state of affairs. Once the danger subsides
the authorizing pouvoir constitué relieves the Commis-
sarial Dictator of his commission and reinstates the ori—

ginal constitution and legal order.25

 

21Die Diktatur, p. 1.

22Ibid., pp. 6-7.
23

 

Ibid., p. 146.

 

24Ibid., p. 145.

 

251bid., p. 136.

 

EVE

 

56

Schmitt contrasts this type of Commissarial

Dictatorship with a Sovereign Dictatorship. Quite dis-

similar to the Commissarial Dictator,

the Sovereign Dictator sees in the total existing
order the condition, which he wishes to eliminate
through his actions. He does not merely suspend an
existing constitution . . but attempts to create

a condition in which he can establish a constitution,
which he views as the true constitution. He appeals

not to an exisging, but rather to a newly arising
constitution . 2

A Sovereign Dictator receives his authority from the

“formless pouvoir constituant," the people, and it is to

the people to whom he appeals.

Because these politically formless people from

whom authority emanates cannot organize themselves a
Sovereign Dictator must first create the external con-

ditions which permit the realization of a viable consti—

tutional or governmental authority. Theoretically the

sovereignty of the dictator lasts only as a "transition"
(Uebergang) , until he fulfills the purpose of establishing

a new constitutional state of affairs. The limited tran-

sitional nature of a SOVereign Dictatorship actually dis—
tinguishes it completely from an absolute monarchy or a

sovereign aristocracy.27 The early regimes of Caesar and

Sulla in ancient Rome, as well as the dictatorships during

the French Revolution, Schmitt cites as examples of

 

261bid., p. 137.

 

27Ibid., p. 146.

 

m
.‘n

 

 

 

 

«It.

3334
..

 

.La

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I'M

 

 

57

Sovereign forms of Dictatorship. In the twentieth cen—
tury the Leninist dictatorship in Russia and the National
Assembly during the German revolution serve as signifi—
cant examples. The existing constitutional and political
order in each case was eliminated in favor of a newly
arising order.

Two major problems concerning Schmitt's theory of
Commissarial and Sovereign Dictators are quite evident.
If the Commissarial Dictator refuses to relinquish his
office after‘completing the task for which he is
appointed, and since he wields extensive power, he could
quite possibly become a Sovereign Dictator and eliminate
the very constitutional or political order he supposedly
protects. Related to this problem is that of the
Sovereign Dictator whose authority and recognition may
rest only with the dictator himself without appealing to
the people. Instead of, serving as a transitional figure
the Sovereign Dictator takes on the character of an
absolute dictator, perpetuating himself as the sole
center of authority and power. Caesar, Sulla, and Lenin
eventually all pursued this course with rather marked
success.

Consciously aware of these possibilities, Carl
Schmitt feared that the recent Russian example would
encourage the Germans to follow suit. The extreme left

continued to call for revolution in Germany and Ebert, a

 

351

 

58

Smflal Democrat, held the office of president. These con-
dfljons disturbed Schmitt even more in light of the
Inmeasing domestic disorders and civil war, which forced
hmquent reliance upon the presidential emergency powers
aMflmrized under Article 48 of the Weimar constitution.

in foresaw the possibility of the destruction of the
Wammr state and its constitution through the misuse of
Article 48 by the extreme left.

The Reichspresident under Article 48 could, when
mflflic order and security are endangered, take the neces—
sary measures (Massnahmen) to reestablish a normal state
ofaffairs. Schmitt referred to these powers as those of
acmmmissarial Dictator and he supported the necessary
appfication of these powers during the unstable and vola—
tihayears of the young republic. But he feared that if
a machspresident were to assume unlimited powers in a
crisis situation he might attempt to destroy the existing
commfitutional and political order. A leftist president
couhieven strive to institute a dictatorship of the
pnfletariat. Therefore, Schmitt cautioned that,

if this unlimited authority is not to signify a dis—
integration of the total existing Rechtszustand and

the transferring of sovereignty to the Reichspresident,
these measures (Massnahmen) must always be merely of

a factual nature, and as such could be neither acts of
legislation nor the administration of justice.28

 

 

28116161., pp- 201—202.

 

59

The radical right could also accomplish the
destruction of the Weimar state and constitution through
Article 48. Countless rightist, anti—republican movements
and activities dominate this period, but these generally
occurred outside of the existing constitutional structure
without reliance on Article 48. In 1921, Germany had a
Social Democratic president and Schmitt's real concern
about the possible abuse of Article 48 remained the Com-
munists. His frightful personal experience with the
Bavarian Soviet Republic left him a horrifying image of
Communism. Without specifically identifying either the
German extreme left or the radical right in Di_e Diktatur,
Schmitt emphasized the socialist theory of the dictator-
ship of the proletariat and Lenin's Soviet Dictatorship.29
As the threat of Comnunist revolution abated, Schmitt
cautioned less about the possible abuse of the presidential
emergency powers, and henceforth argued against placing
narrow restrictions on the powers of the president. It
should be noted that he began lending his strong support
to the presidency while Friedrich Ebert still occupied
that office. Ebert had gradually proven his non-
revolutionary nature to Schmitt.

Whether motivated by fear of the radical right or

left, however, Carl Schmitt's interest in the continued

 

291bid., pp. v—viii, 204—205.

 

 

3:1

 

’ Leif/5:5

-.
.fl

 

60

existence of the Weimar constitution and state is quite
evident. In relating his theory of dictatorship to the
German situation Schmitt was upholding the letter and the
spirit of the Weimar constitution.

With the Weimar constitution in mind Schmitt
attempted to reconcile his own profession of law with the
actual political world. The first obstacle he encountered
came in the form of Hans Kelsen's pure theory of law

(reine Rechtslehre) . Law should be based upon a system of

 

norms, Kelsen insisted, and be kept isolated from socio—
logical and political considerations which taint its
purity.30 Schmitt's awareness of the interrelationship
of law and politics, however, led him to conclude that
Kelsen's position was untenable. He challenged Kelsen's
Normativism with his own theory of Decisionism, which
pertained more directly to the exceptional case rather
than the norm. Schmitt first presented his concept of
Decisionism in two articles in 1922, and he published

these in a book entitled Politische Theologie later that

same year.31 Taken by itself Politische Theologie is a

 

30Hans Kelsen, Der Soziologische Und Der
Juristische Staatsbegriff: Kritische Untersuchung Des
Verhaeltnisses Von Staat Und Recht (Tuebingen, 1922) ,

“—

PP- 2-3, 75-81, 53.
31

 

 

Carl Schmitt, "Die Staatsphilosophie der

Souveraenitaetsbegriffs und Politische Theologie,"
Hauptprobleme der Soziologie: Erinnerungsgabe fuer Max

 

 

 

 

 

 

61

mmmwhat confusing work, lacking a precisely organized
amidetailed system of thought. But the individual com—
pmmmts of Schmitt's Decisionism are essentially clear.
Among the more important decisionist ideas of
Sctht are his concepts of sovereignty and the state of
mmeption (Ausnahmezustand); two ideas which underlie his
fuhne approach to real and theoretical political prob-
lems. Schmitt always maintained that, "the exception is
nwreinteresting than the normal situation. The normal
simmtion proves nothing, the exception proves everything;
it not only confirms the rule, but the rule lives only
frmnthe exception."32 When referring to the
anmmmzustand Schmitt envisioned a situation of a defi—
Iute and critical political nature. It can at best be
dmflgnated as a case of extreme emergency (N23), endan—
gmflng the very existence of the state.33 Not every
mdraordinary authorization, every police emergency, or

emenfimcy degree, however, properly signifies an

Aumuflmezustand. These often involve, on the contrary, a

 

state of emergency (Notstand), quite dissimilar to an

Aummhmezustand. Such a state of emergency could require

 

 

Wehnr(Muenchen, 1922) Bd. II; Politische Theologie:

~—______—_—___

32Politische Theologie, p. 22.

33Ibid., p. 12

 

 

 

5121‘

...‘1(

 

 

 

62

the suspension of the entire existing legal order. If
this condition arose the state would continue functioning
while the existing legal order becomes insignificant};4
An Ausnahmezustand on the other hand always describes a
situation other than simply anarchy and chaos, and a
situation which remains susceptible to legal recognition.
The state can suspend legal norms in the event of an
Ausnahmezustand and the decision of the sovereign could
even become absolute and destroy existing norms. But a
minimum of the existing legal and political order must
always remain.35

By its very definition as an exceptional case the
Ausnahmezustand excludes the possibility of binding it to
a norm. Politically speaking, Schmitt believed it totally
impossible to predict in advance in what form or situation
an Ausnahmezustand would occur, and likewise impractical
to prescribe beforehand in any detail the legally permis—
sible procedures to deal with unique any varying excep—
tional cases.36 A constitution, from Schmitt's point of

view, could at best state precisely who assumes authority

in a state of exception and only in general terms

 

34Ibid., p. 18.

351bid., p. 19.

36Ibid. , p. 12.

 

E

~'Li

 

 

63

describe his powers}.7 Article 48 of the Weimar consti-
tution, for example, empowers the Reichspresident to deal
with an Ausnahmezustand, but always under the control of

38 The numerous disorders of the early

the Reichstag.
republic and the frequent application of Article 48 to a
multitude of diverse situations greatly influenced
Schmitt's theoretical formulations on this point. And in
turn these theoretical foundations provide the justifica—
tion for his future opposition to the Ausfuehrungsgesetz,
which aimed at defining precisely the authority of the
Reichspresident under Article 48.

A second reason for Schmitt's critique of Nor-
mativism and of Kelsen's pure theory of law, is the
realistic question of who retains the actual power in such
a critical period. He rejects the idea of the applica-
bility of norms to an exceptional case, because one must
first establish a normal situation before the normative
legal order could have any meaning. "All law is situation
law," and the person or group which holds sovereignty
(i.e., real power and authority) in effect decides
whether there exists an exceptional case or a normal state

of affairs, and exercises a monopoly over the final deci—

sion establishing and guaranteeing the situation. This

 

37Ibid.

 

38Ibid., p. 17.

 

 

64

act of sovereign decisionism emphatically illustrates the
political authority of the state, proving that the state
does not need law, in this case norms, in order to estab—
lish law.39 Thus Schmitt opens his Politische Theologie
with the now famous phrase, "Sovereign is he who decides
in a state of exception."

Schmitt considers the relationship between the
highest legal and the highest actual power as the funda-
mental problem of the concept of sovereignty.41 It is
this point of contention more than any other aspect which
stands at the heart of the conflict between Kelsen's
Normativism and the Decisionism of Carl Schmitt. Through
his efforts at separating sociology and politics from the
legal concept of the state Kelsen, according to Schmitt's
critique, presents the state as something purely legal.4'2
Kelsen's legal state, therefore, would be identical with

only its constitutional laws, that is with its basic and

unifying norms.43 A system of norms would determine

 

39Ibid. , p. 20.

4oIbid., p. 11.

41Ibid., p. 27.

 

421bid., pp. 27—28.

43Ibid., pp. 28-29.

 

 

 

w-
.M:

(".3

 

 

65

mwereignty for Kelsen rather than a person or a
smficlogical—psychological power complex.44

Kelsen's purely legalistic approach to the state
amito the question of sovereignty Schmitt found completely
mmcceptable. He was too keenly aware of the realities of
power politics to isolate himself solely within the con-
fines of the legal discipline, while ignoring the actual
polfljcal functions of the state. Schmitt perceived of
the state as something more than simply the sum of its
constitutional laws and, in times of crisis, he was will—
ing Unforego a part of the Weimar constitution in order
hapreserve the Weimar state and the constitution as a
Mwle. His own theory of Decisionism showed that in a
state of exception, when sovereignty emerges as the
dmflding factor, norms become inoperative. The decision
ofaisovereign in a state of exception could actually be
boniout of nothing without regard to norms.45 Of primary
importance during a state of exception is not the appli—
cafility of norms, but the problem of, "Who decides?"46
Thenmin thrust of Schmitt's decisionist arguments fol—

lowed this course of reasoning. He refused to eschew the

political and sociological realities governing the issues

 

44Ibid., p. 28.

 

45Ibid., p. 42.

 

461bid., p. 46.

 

 

66

of authority and power, particularly when dealing with the

state and the concept of sovereignty.

 

 

 

Imp
m1.

CHAPTER III
THE POLITICAL IDEAS OF CARL SCHMITT,
1922—1928
Shortly after the publication of Politische

Theologie Carl Schmitt accepted a professorship at the
University of Bonn, where between 1922 and 1928 the pre-
cocious young scholar from Plettenberg rose to national
prominence in the academic and legal professions. Finding
Bonn a particularly fertile atmosphere in which to pursue
his interest in political studies, he wrote several of
his more influential works on the harsh realities of
political life while at this provincial Rhine university.
In a letter to Moritz Julius Bonn, Schmitt described his
satisfaction with his new position: "Bonn is now magnifi—
cent. Everything, lectures, practice sessions, etc. have
the best results."1 A scholar with Schmitt's proclivity
towards politics had good reason to be pleased with his
new academic duties. For most of the courses Schmitt
taught at Bonn were not in jurisprudence but in political

science. Aside from an occasional course by Erich

 

lCarl Schmitt to Moritz Julius Bonn, June 16, 1922,
BA, Bonn Nachlass, No. 49.

 

67

 

 

i2:

 

68

Kaufmann, Schmitt held a place of distinction as the only
professor in the law faculty to teach courses on poli—
tics.2 In doing so he actually pioneered in the develop-
ment of political science in Germany.

Political science was a highly controversial dis—
cipline in the Weimar Republic and had not yet achieved
the status of an independent field of study. Before World
War I political science in Germany merely served as an
auxiliary discipline to public law. There were pre-war
political treatises by Treitschke and others, but they
never reached the level of a precise science. Important
political subjects such as public opinion, the nature of
political parties, and interest groups were either totally
ignored or handled on the periphery of legal studies.3
Attempts by reputable jurists like Georg Jellinek and

Fritz Stier-Somlo to advance political science further
failed to acquire widespread acceptance in the profes—
sion.4 Robert Michels, a close friend of Max Weber who
wrote an enlightening study of political parties, never

received an academic appointment in Germany because of

 

2 . . . .
Verzeichnis der Vorlesungen a_n der Rheinischen

Friedrich—Wilhelm—Universitaet fl Bonn, 1922—1928, Bonn
University Archives.

3Peter Gay, Weimar Culture: The Outsider as
Insider (New York, 1968), pp- 37‘39-

4Fritz Stier-Somlo, Politik (Leipzig, 1911).
Georg Jellinek, Allgemeine Staatslehre (Berlin, 1900) .

 

J,
‘115
t]
(it

.4

69

his socialist associations. The Hochschule fuer Politik,

 

opened in 1920 to educate Germans in political affairs,
remained an exception among academic institutions. Most
law faculties maintained a skeptical attitude toward
political science and for the duration of the Weimar
Republic jurists debated the actual relationship between
law and politics without arriving at any consensus.5

Although Carl Schmitt had not yet developed a
discernible political theory during his early years at
Bonn, his political sympathies were quite evident from
the manner in which he approached theoretical and actual
political problems. His anti—liberalism, preference for
authority, and stress on order and stability predisposed
him to a critical attitude toward the instability of the
Weimar system. Not surprisingly the European crisis of
liberal—democracy and parliamentary government attracted
his attention.

The intellectual critique of liberalism and
rational politics itself, which began before World War I,

now pervaded twentieth-century political thought. Polit—

ical publicists exposed the discrepancy between the

liberal ideology and the actual process of party politics.

While Marxists continued to criticize parliament as an

 

5Ulrich Scheuner, "Die Vereinigung der Deutschen
Staatsrechtslehrer in der Zeit der Weimarer Republik,"
Archiv des oeffentlichen Rechts, Bd. 97, Heft 3
(Septemm, 1972), pp. 359-361.

same:
15 Gaet
is peop
44 Me
4 self-
someig
is irra
44min
Alfredo
ire powe
isadersh

golitica

70

instrument of class rule, theorists like Robert Michels
and Gaetano Mosca argued that instead of representing
the people, ruling elites controlled parliaments in their
own interest. These theorists Viewed political parties
as self-perpetuating oligarchies unhampered by popular
sovereignty. At the same time an increasing emphasis on
the irrational element in political behavior further
undermined the foundations of liberalism. The works of
Vilfredo Pareto, Georges Sorel, and Max Weber elucidated
the power of myth and the attraction of charismatic
leadership as opposed to individuals making rational
political decisions. Complicating the issue was the
inability of liberal institutions to handle the influx of
the masses into the political process. As a result, when
the Germans started their first real experiment with a
republican form of government, liberalism was already on
the defensive throughout Europe.

To many Germans the deficiencies of their own
parliamentary system confirmed the decline of liberalism.
Contrary to the liberal ideal of peaceful compromise the
Reichstag served as the battleground for uncompromising
interest groups and political factions. No single party
ever acquired the support of a majority of the population.
Coalition governments were hindered by the fact that Weimar
political parties represented specific and antagonistic

social classes, economic interest groups, and

4,

1M
4..

71

irreconcilable ideologies. Although the Social Democratic
Party accepted the Republic it remained essentially a

class party and its socialist ideology separated it from
the bulk of the middle classes. The SPD considered the
Republic as simply one stage in the progression toward a
socialist state. On the other hand, Germany's middle
classes had originally acquiesced in the establishment of
the Republic only because they saw it as a bulwark against
Bolshevism and as a means to a more lenient peace. A
small minority of middle class liberals did support the
German Democratic Party in its cooperation with the
Republic, but the hostility between liberals and socialists
prevented any lasting coalitions between the DDP and the
SPD. Most middle-class liberals followed Gustav
Stresemann's German People's Party, which likewise found
cooperation with the SPD difficult. Stresemann's party
was far too nationalistic and too closely connected with
industrial interests to satisfy the socialists. And
further to the right the German Nationalist People's

Party represented the interests of agrarians and large-
scale capitalism. Ideologically the DNVP was anti—
republican and reactionary, with strong monarchist ten—
dencies. The two extremist parties, the National
Socialists and the Communists, were avowed enemies of

the Republic and refused to cooperate with any government.

Only the Catholic Center Party offered a possibility for

 

 

72

umpromise. While favoring progressive social legislation
amicontinually criticizing liberal capitalism, the Center
Pargrwas totally committed to private property and to
mahflnining the stability of the Republic.

Impeded by these irreconcilable antagonisms the
Wannr Republic was never to experience any period of
laying governmental stability. The unstable Weimar
panUament would witness twenty—one different coalition
mnmrnments in its short history. At times only the
efflnts of dedicated leaders in the executive branch like
Eben:and Stresemann, kept the government functioning at
all.

Under these conditions numerous political tracts
appeared in Germany dealing with the crisis of parlia—
mannry government, and in 1923 Schmitt joined the public
admck on liberalism. His main argument was that the
nmdeniinstitution of parliamentarism had lost its intel-

lectual basis.6

In this regard, Schmitt's objective was
Emply to analyze the contemporary situation in Germany;
rm did not attempt to undermine the Republic through his
hnfillectual critique. Schmitt believed that the way for

reflnmlproposals could only be opened after the problem

was fiflly understood.7 One would accomplish nothing by

 

6Carl Schmitt, Die geistesgeschichtliche Lage des

lmutigen Parlamentarismus (2nd ed.; Berlin, 1926),
PP. 30, 62.

7Ibid., p. 30.

 

1.. . »__ia= .’d=."i."—’ __ . 1 . 33—15:. .»__._ .r,_. ..

 

 

 

 

("1'
.7;
IECE
. L
.M
4 ,
.7.

.191
iii.
Em

.W\u..rui\\.nw\im .msym\m>mm (hm :M...

73

ignoring the impact of political factors such as the
irrational power of myth or the role of interest groups.
Schmitt's critique of liberalism, especially his
recognition of the irrational in politics, is often mis—
interpreted. A legend has been perpetuated that his
Decisionism was actually an irrational political philos—
ophy similar to certain ideas of Georges Sorel, Ernst
Juenger, Oswald Spengler, and Martin Heidegger.8 Accord—
ing to this legend Schmitt opted for "action instead of
deliberation, for decision instead of evaluation."9
Although Schmitt did state, "dictatorship is the opposite
of discussion," he never advocated any romantic or irra—
tional doctrine of Decisionism.lo His Decisionism was a
realistic theory based on the necessities of a concrete
situation. The decision of a sovereign is a measure

necessary to re-establish a normal state of affairs during

a time of crisis. It is applicable only to the

8Christian Graf von Krockow, Die Entscheidung:
Martin Heidegger (Stuttgart, 1958) . Heinrich Wohlgemuth,
Qa_s Wesen des Politischen Er der heutigen neoromantischen
Staatslehre——Eine methodischer Beitrag zu seiner

1933-1944 (New York, 1963) . Iggers, German Conception,
PP. 25-26, 243, 245. Hugo Fiala (Karl Loewith) ,
"Politischer Dezisionismus," Internationale Zeitschrift

fuer Theorie des Rechts, Jhg. 9, Heft 2, pp. 108—111.

 

 

9Neuman, Behemoth, p. 45.

lOCari Schmitt, Pol. Theo., p. 80.

 

 

 

 

 

 

the

1:91

74

ameptional situation and includes no advocacy of irra—
tional political thought or activity.

Neither was Schmitt's Decisionism undemocratic.
Ebr he viewed democracy as a series of identities between
nfler and ruled, governing and governed, the people and
thehtrepresentatives. A democracy could be militaristic
mrpacifistic, progressive or reactionary, absolute or
hberal. Thus democracy and liberal parliamentarism are
1km always synonymous, though in their 19th—century
mxuggles against monarchy and aristocracy a common pur—
posexnuted them.11 The central criterion of democracy
remains the identity of law with the will of the people.12
Majority rule is not necessarily identical with the will
oftflm people. Throughout history democratic minorities
or elites have felt that they embodied the true will of
the people, and that they must first suspend democracy in
order to develop true democracy. Bolshevik rule in
Soviet Russia presents a perfect example of such misuse
of democratic principles. Whoever controls the means of
mmmr, propaganda, and persuasion develops the will of
He people to correspond to his own will. The Soviet

regime illustrates that "dictatorship is not the opposite

of democracy," but rather the opposite of parliamentary

 

llCarl Schmitt, Die geistes., pp. 32, 41.

12Ibid., pp. 34—35.

 

Hi

pm:

41

 

75

13
government. In fact parliamentary government often

represents anti-democratic tendencies.

On the European continent constitutional parlia-
mentarism had its classical age in the bourgeois
kingdom of Louis Philippe and its classic mani—
festation in Guizot. The old monarchy and aristoc—
racy were vanquished and the approaching democracy
appeared as a chaotic current, against which a dam
must be built. Between monarchy and democracy rose

the correct middle of the bourgeois—kingdom of con—
stitutional parliamentarism.l4

Schmitt perceived the essential element of this
liberal system as public discussion. The free expression
ofcontrasting opinions would result in rational and cor—
rect decisions. Ideally discussion replaces force and
{nogress would follow the victory of right over power.15
hireality, however, political parties and parliamentary
life bear no resemblance to this liberal ideal. The
adsting institution of parliament had degenerated into
"a poor facade for the rule by parties and vested economic
hmerests."l6 Instead of public discussion, small party
cmmuttees or party coalitions convene secretly. Within
'Umse secret committees not the will of the people but

interest groups decide the political fate of Germany.

Public discussion has become an empty and idle formality

 

l3Ibid., pp. 37—38.

 

14Ibid., p. 63.

 

15Ibia., p. 61.

16

 

Ibid., p. 29.

 

 

 

 

 

following
7411mm

:4' meani

Enters
Liberalis
a: insm
acts as e
".".e peep}
sciousnes

:ie 11an

76

following the decision making process. Consequently,
parliament has "lost its hitherto existing foundation
and meaning. "17
In opposition to liberal parliamentarism stands a
dictatorship in the form of radical Marxism. Like
liberalism it also rests upon a rational metaphysics. As
an instrument of the world spirit the Marxist dictatorship
acts as a rational educating—dictatorship, instructing
the people of their true will. Possessing a higher con—
sciousness than the masses the educating dictators "compel
the unfree to freedom."18
These two rationalist systems, liberal and Marxist
alike, now face a challenge by the irrational theory of

19

direct action. The challenge is theoretically repre—

sented in Sorel's concept of myth and Bergson's élan vital.

 

 

Myth based on intuition and not rational discussion or
rational dictatorships would provide the masses with the
courage and motivation for direct action and martyrdom.
What men value arises not out of reasoning, but from

instinct and intuition.20

 

l71bia., pp. 62—63.

lsIbid., pp. 64, 69—70.

 

lgIbid., p. 76.

 

20Ibid., pp. 80, 84—85.

 

ten

 

My
A

‘H
A“

77

Contemporary models of political myth existed in
Bolshevik Russia and Fascist Italy. Although the basis
of a rational Marxist dictatorship is challenged by the
theory of myth, Schmitt believed that myth still played a
significant role in Soviet Russia. Originally rationalist
western Marxists developed the idea of the bourgeoisie as
the ultimate enemy. The idea moved east where it combined
with a traditional Russian hatred of the complicated,
artistic and intellectual civilization of western Europe.
Together the Russians and proletarians viewed the
bourgeoisie as the incarnation of a deadly mechanism
threatening their way of life. Russian nationalism united
with the proletarian instincts of class struggle to form a
new myth. But the national myth is always stronger than
the class myth. Where the national and class myths con-
flict the former always emerges victorious, as demonstrated
by Mussolini's Fascist movement.21

The Italian model contains ominous signs for
western European governments. A new national enthusiasm
based upon myth reigns in Italy, where there previously
existed a constitutional and parliamentary government in
the liberal Anglo—Saxon tradition. Therefore, Schmitt
Claimed, "the great psychological and historical signifi—

canoe Of the theories of myth cannot be denied," and the

k

21.
Ibid., pp. 87—89.

 

:48
the p
Che u

be 54

 

 

 

 

 

 

78

rationalism of parliamentary thought has lost its dominant
position. With this Italian example in mind he took little
comfort in the argument made by liberals that no acceptable
substitute for parliamentary government had yet been dis—
covered. That argument would surely prove futile when

the political power of myth confronted parliamentarism.

The phrase "Parliamentarismus, fig sonst?" would not alone

- - . . . . 22
be suffiCient to reVitalize the age of discu581on.

 

Schmitt could provide no solution to the crisis
nor any alternative to parliamentary government. Nowhere
in this work did he even suggest dictatorship or mythically
based direct action as a substitute for the Weimar system.
His critique of liberalism may have contributed to the
despair and pessimism regarding the future of the Repub-
lic, but by pointing out the inconsistencies between the
liberal ideology and the actual practices of government

- . . 2
he did not cause the crisis of parliamentarism. 3

k.—

22 .
Ibid., pp. 87, 89-90.

 

23Both Fijalkowski and Sontheimer contend that
SChmitt's critique of parliamentary government emanated
erm his anti—liberalism, rather than from a logical anal—
y51s 0f the failings of the parliamentary system. But
even One of Schmitt's harshest critics, K. D. Bracher,
C9ncedes the existence of an actual crisis in German par-
llamentary government. Recently Helmut Rumpf has acknowl-
ed99d a certain value in the realistic attitude of .
SCmutt-'8 critique of parliamentarism as it existed in the
Weimar Republic. See: Juergen Fijalkowski, gig Wendung

23%. op. cit., pp. 5, 36, 63-65, 142. Kurt
Sontheimer, Antidem_okratisches Denken in der Weimarer

W: Die politischen Ideen des defifschen WEE

 

;.

.406"
1 t

w

44 .

54‘. ‘
will

79

By rejecting liberalism Schmitt was not repudi-
ating western values, civilization and culture. In con-
trast to certain misinterpretations of his work Schmitt's
political philosophy did not result from the anarchy of
values which plagued many of his contemporaries. Earlier
Schmitt had attributed the failings of the political
romantics to the loss of universal values and he was
highly critical of intellectuals who fell into this cate-
gory.24 Any attempts to compare his political philosophy
with the thoughts of Nietzsche are completely misleading,
especially since Schmitt's fervent Catholicism clashed
with Nietzsche's anti—christian prejudice.25 From
Schmitt's point of view Nietzsche "was a very sick man,"
and his philosophy held no attraction for the Weimar

M

Meg 1918 und 1933 (Munich, 1964), pp. 94-95, 96—98.
Karl Dietrich Bracher, Die Aufloesung der Weimarer

W (5th ed.; Berlin, 1971), pp. 2—7-28_—, 34—‘3‘5.
Rumpf. o_p. cit., pp. 42—43.

 

4
Carl Schmitt, Pol. Romantik, p. 138.

_ 25Hans Kohn wrote that Schmitt's political
philosophy expresses a, "hatred of western civilization,
Of liberalism, of humanitarianism." Georg Iggers on the
other hand views Schmitt's Decisionism as the result of
the European anarchy of values, and Peter Pattloch even

places Schmitt's ideas into a Nietzschean framework. See:

Hans Kohn, The Mind 9_f_ Germany: The Education of a Nation

(New York, 1960W. 327. Iggers, 9p. cit., m3T 544-245-
Peter Pattloch, Recht Als Einheit von Ordnung und Ortung:

E % zum Rechtsbegriff fl Carl Schmitts "Nomos der
Er£ (Aschaffenburg, 1961), p. 9.

 

 

 

 

 

21
jurist.

mom:
‘this '01

and that

and admiJ
versalisx
institut:
:91er w
politicai
person a:
We! of
Its powel
the churt
the p0111
mst a1s«
tha poli'
Politics

ethos of

Pohtisc?

 

80

26 . . .
yuist. Unlike Nietzsche and many of Schmitt's own con—

taqmraries, the Catholic jurist firmly believed that,
"fins world has its hierarchy of values and its humanity,"
amithat, "in it lives the political idea of Catholicism

."27

The Roman Catholic church as a historic complex

amiadministrative apparatus continues to embody the uni—
versalism of the Roman Empire.28 But as a juridical
institution the Catholic church represents more than
merely worldly jurisprudence, and only maintains its
political power and authority by representing a concrete

person and idea, i.e., Christ himself.29

The political
Power of Catholicism is not a physical or military power.
Its power rests solely on the belief in the authority of

the church as the representative of Christ on earth. Like
the political power of Catholicism all political power
nmst also involve more than mere physical force. "To

Hm political belongs the idea, because there is no

DOlitics without authority and no authority without an

"30

ethos of belief. Thus, in order to have such authority

M

26
Schmitt interview, July 13, 1973.

._ 27Carl Schmitt, Roemischer Egthgliglgflgi BBQ
Bfljfifighg Form (Munich, 1925), PP~ 29'30'

28

 

Ibid., p. 8.

 

29Ibid., pp. 25-26, 29—30.

 

3OIbid., pp. 25, 29—30.

 

 

 

 

my 901

sochasG

freedom a

in the £0
with this
Liberal o
tion and i
and socio
is: and p
oppositioo
tatholici:
for beyom
an alliam
‘oial cap:
altar coul

factory a1

rEjection
approach '
War sim
in the ab‘

Profound 1

 

81

every political system must represent a person or an idea,
such as God, or the people, or abstract ideas such as
freedom and equality.

In the twentieth century a mechanistic metaphysics
in the form of liberal capitalism and socialism competes
with this idea of representative political authority.
Liberal capitalism and socialism deal solely with produc-
tion and consumption ignoring the moral, psychological,
and sociological nature of men. Such economic functional—
ism and power techniques for controlling men stand in
opposition to the political idea of Catholicism.31 For
Catholicism recognizes the significance of ideas which go
far beyond the basic material needs of men. Consequently,
an alliance between the Catholic church and modern indus-
trial capitalism is impossible. The union of throne and
altar could not be replaced by the union of office-

factory and altar.32

If Schmitt's anti-liberalism emanated from his
rejection of a purely mechanical, functional, and economic
approach to politics, his anti-socialism had deeper roots.
Ever since his horrifying experience with the communists
in the aborted Bavarian Soviet Republic he possessed a

Profound hatred of Bolshevism as the potential

 

3lIbid., pp. 18—20.

321bid., p. 33.

 

—

ehihilator of was
expressed this sen
'fortunately,‘ he
civilization and hi
fact that the Unive
Hessian outpost . .
tatholicism he dec]
there both the cl
cities and the Russ
soil these two barb
hmpean traditions
inthis struggle be
church must stand,
European civilizati
Although Ca
tines the Catholic
“trepudiated both
iliavor of what he
thrent in western
hilly consider suc

mites and Christia

iatSchmiee suffer

v

. 33Carl Schn
""191. are 21291

34

Carl Schm

 

82

annihilator of western civilization. Schmitt clearly
expressed this sentiment in a letter to M. J. Bonn:
“fortunately," he said, "the sun of our thousand—year
civilization and humanity still shines here, despite the
fact that the University of Bonn was considered as a
Russian outpost . . . ."33 In his work on political
Catholicism he declared that compared to western European
culture both the class—conscious proletariat of the great
cities and the Russians are barbarians. United on Russian
soil these two barbarian groups are challenging western
European traditions and values. He went on to say that
in this struggle between East and West the Catholic
church must stand, "on the side of ideas and western
European civilization . ."34
Although Carl Schmitt never stated what universal
values the Catholic church represented, it is clear that
he repudiated both relativism and materialistic ideologies
in favor of what he considered as the absolute values
inherent in western culture and Christianity. One could
hardly consider such a traditional defense of western

Values and Christianity as nihilistic or as an indication

that Schmitt suffered frOm a personal crisis of values.

 

33Carl Schmitt to Moritz Julius Bonn, June 16,
1922, BA, Bonn Nachlass, No. 49.

3
4Carl Schmitt, Rom. Kath., pp. 51-53.

 

 

 

That Schm.

hflrolicism was ur
heritage and faitl
tire pragmatic P0“
tie Catholic Cents
root only saw th
socialism and libe
teeter was the ess
tea. Only the abi
right and the left
urued functioning
of the Center Part
survival of the R81
order and stabilit,
Taken toge
and his statements
prise no systemati
lavueness of many
‘ugs about his act
ilournent Weimar 3'
rilationship betwe
if parliamentarism
illegad that Schmi

if parliamentarisn

‘ior being a coalj

 

83

That Schmitt ascribed such noble attributes to
Catholicism was understandable in light of his Catholic
heritage and faith. Equally significant, however, was
the pragmatic political perspective from which he viewed
the Catholic Center Party. In practical political matters
he not only saw the Center Party as standing between
socialism and liberalism, but he also believed that the
Center was the essential pillar of the Weimar party sys—
tem. Only the ability of the Center Party to unite the
right and the left, he believed, could assure the con—
tinued functioning of the system. For him the politics
of the Center Party were of crucial importance in the
survival of the Republic and the preservation of political
order and stability.

Taken together Schmitt's critique of liberalism
and his statements concerning political Catholicism com—
prise no systematic or precise political theory. The
vagueness of many of his ideas often led to misunderstand—
ings about his actual intentions. Richard Thoma, another
prominent Weimar jurist, for example, misinterpreted the
relationship between Schmitt's Catholicism, his critique

Of parliamentarism, and his work on dictatorship. Thoma
alleged that Schmitt presented Europe with the alternative
Of parliamentarism or dictatorship, with Schmitt's solu-

tion being a coalition of a national dictator and the

 

 

Catholic church. 35

ndclarify his id
1926 on 'The Antit
lassDenocracy,“ w
duction to his ear
true his interest
receded into the b
nth the political
Schmitt st
of parliamentarism
constitutions, inc
tune to embody th
representatives ,

rt independent pol
iShrticle 21 of t
he representative
Subject to their 0

Instructions. “38

\__.______

3SRichard
lished der Diktat

svualpolitik, Bd.

36Carl Sch

I“ hid noderner h
due, 1926), pp.
r5 ' .
.ielstesgeschic

37%!” r

fl 3a"Die Wei
in, ed, Guenh

 

84

35

Catholic church. To counteract such misunderstandings

and clarify his ideas Schmitt published an article in
1926 on "The Antithesis of Parliamentarism and Modern
hhss Democracy," which thereafter would serve as an intro—
mxmion to his earlier work on parliamentarism.36 By this
time his interest in political Catholicism had already
receded into the background and his preoccupation was
Wiflithe political problems of the Weimar Republic.
Schmitt still asserted that the essential element
ofgmrliamentarism was public discussion. Parliamentary
constitutions, including the Weimar constitution, con-
tnnm to embody the liberal ideal of individually elected
representatives, who through rational discussion arrive

37

atihdependent political decisions. A case in point

is Article 21 of the Weimar constitution: "The deputies
arertpresentatives of the entire people. They are only
sMfiect to their own consciences and are not bound by

nmtructions."38 In reality, Schmitt notes, strict party

35Richard Thoma, "Zur Ideologie des Parlamentaris-
mm und der Diktatur," Archiv fuer Sozialwissenschaft und

Sozialpolitik, Bd. 53 (1925), PP- 215, 217.

36Carl Schmitt, "Der Gegensatz von Parlamentaris—

musrmd moderner Massendemokratie," Hochland, Jhg. 23
LLme, 1926), pp. 257—270. Citations are to Schmitt's
@fi geistesgeschichtliche Lage, 1926 edition.

37

 

 

Ibid., pp. 7, 9-10, 13.

 

38"Die Weimarer Verfassung," in Staatsverfas~
flgflgg, ed., Guenther Franz, (Munich, 1950), p, 184.

fi

discipline, comprov
parliament. Elect.
of pairing rational
asses are won thrr
appeal to special .
hooves not discus
vith which to gove.
hrfrorn being a d
irstrtution for ma
of interest groups
udlascisrn is not
:entary government
:vrhnore to its 0
than mass democr

Democracy
no modern form of
definition of demc
harm of the 96
Weeeneity. Whi]
dtriiocracy does not
hides the basis fr
ml: or national.
91event of homoge‘

“We itself able

\W
39

Carl Sc

 

85

discipline, compromises, and coalitions prevail within
panUament. Elections follow a similar pattern. Instead
ofnmking rational choices between candidates the voting
nesses are won through propaganda apparatuses, which
appeal to special interests and emotions. The objective
bemmws not discussion but the procurement of a majority
widiwhich to govern in the interest of one's own party.
Far from being a democratic institution parliament is an
nmtitution for manipulating the masses for the benefit
ofinterest groups. Thus, the dual threat of Bolshevism
andEascism is not the only cause of the crisis in parlia—
mentary government. Parliamentary government contributes
rmmh more to its own demise by its inability to adjust to
modern mass democracy.39
Democracy also faces a crisis because there exists
no modern form of a democratic state. To his earlier
defhfition of democracy as an identity between rulers and
Um will of the people, Schmitt now added the concept of
mmmgeneity. While liberalism accepts all men as equals
dammracy does not. Homogeneity rather than equality pro—
\ndes the basis for democracy. Often religion, citizen—
shqm or nationality COnstitute the necessary cohesive
element of homogeneity. When necessary a democracy must

Prove itself able to "exclude or destroy the heterogeneous."

 

39Carl Schmitt, Die geist., pp. 11, 21.

 

fi

In various historic
different categorie
hunter-revolution;
‘he equality of the
rotheequal.“ For
upossible to deter
vdthhonogeneity a
unity of establish:
‘hevill of the per
stems from its faii
critic state based

Schmitt's r
accepted. But eve
ceded that democra
dd he agreed with
Unlike Schmitt, ho
tutdon where “nego
halal interest g
'deuotiations“ or
if the functioning
ditched firmly cc

Although 5

iii lost its intei

\w-

eow” .

41Moritz
"’5' “A: Bier: Ila

 

86

hivarious historical periods the heterogeneous fell into
different categories of barbarians, atheists, aristocrats,
tomnfir-revolutionaries, etc. "In democracy there is only
tmaequality of the equal and the will of those who belong
to am equal." For without this homogeneity it would be
hmmssible to determine the will of the people. Even
wiflihomogeneity a state must still overcome the diffi—
culty of establishing an identity between the ruler and
Hm will of the people. The crisis in the modern state
stems from its failure to transform itself into a demo—
cratic state based on homogeneity and identity.40
Schmitt's definition of democracy was never widely
accepted. But even his liberal associate M. J. Bonn con—
ceded that democracy is not identical with parliamentarism,
andrm agreed with Schmitt‘s concept of homogeneity.
mflike Schmitt, however, Bonn saw parliament as an insti—
tution where "negotiations" or "compromises" between
special interest groups take place. For Bonn such
'megotiations" or "bargainings" were a necessary element
of Um functioning of parliamentary government, and he
remained firmly committed to that form of government.41

Although Schmitt believed that parliamentarism

hadlost its intellectual foundations he could find no

 

4OIbid., pp. 14, 16, 22.

41Moritz Julius Bonn to Carl Schmitt, June 11,
1926, BA, Bonn Nachlass, No. 50.

 

 

 

 

neeptable replac

levas concerned
rentvas the less
ship, or untried
i exists today,
apolitical syste
functions tolerab

43 the fear

less.ll
ressvould not su
because politics ’
authority without
tardy, YE son
panel a purely
technical means 01
the ideologically
deheimar state.
future stability c
that he had, "an r
hired the German :
By expres:

iharbinger of do

\N

42Carl Sc

“Ellis
4
4Carl Sc

4
SCarl Sc

dun
\ we N0

 

87

acceptable replacement for that institution. So far as

he was concerned the contemporary functioning of parlia—
ment was the lesser evil compared to Bolshevism, dictator—
ship, or untried methods of government.42 "Parliamentar—
ism exists today," he said, "as a method of government and
a political system. Like everything that exists and
functions tolerably, it is useful, nothing more and nothing

"43

less. He feared, however, that mere functional useful—

ness would not suffice to sustain parliament forever,

because politics involves authority and there is no

44

authority without a representative idea. "Parlamen—

tarismus, was sonst? would prescribe an idealess status

 

gig and a purely technical means of governing. This
technical means of governing would have no defense against
the ideologically oriented radical movements endangering
the Weimar state. Describing his real concern for the
future stability of the Weimar state Schmitt confessed
that he had, "an almost continual fear for the manner in
which the German right and left pursue their politics.”S

By expressing this fear Schmitt was not acting as

a harbinger of doom, who projects an intellectual crisis

 

42Carl Schmitt, Die geist., pp. 6—7.

43Ibid.

 

44tCarl Schmitt, Rom. Kath., p. 25.

 

45Carl Schmitt to M. J. Bonn, June 17, 1926, BA,
Bonn Nachlass, No. 50.

 

 

 

udtbeoretical di

vrrst fears about
ineffectiveness o
vere well-founded .
intervals of stab'
inrldhar I and 1
aborted revolutio
the country since
Reichspresident r
the emergency pow
hirer constituti

discussion, but t

disorder. Befoe

mold utilize Artz‘

occasions. 47

The const:
Ertillent reliance
Shiite found par

leeluring and pub

l a
the Weimar consti

 

88

and theoretical dispute into a political situation. His
worst fears about extremist political groups and the
ineffectiveness of the Reichstag to cope with this threat
were well-founded. Germany had experienced very few
intervals of stability and tranquility between the end of
World War I and 1925. Strikes, riots, civil war and
aborted revolutions from the radical right and left plagued
the country since the Weimar Assembly. At times the
Reichspresident ruled the nation solely on the basis of
the emergency powers authorized under Article 48 of the
Weimar constitution. Not parliamentary compromises and
discussion, but the frequent use of Article 48 assured the
survival of the Republic in its early stages of domestic
disorder.46 Before the end of the Republic the government
would utilize Article 48 on more than 250 different
occasions.47

The constitutional complications involved in the
frequent reliance upon presidential emergency powers
Schmitt found particularly interesting. In 1924 he began

lecturing and publishing specifically on the problems of

the Weimar constitution, always granting special attention

 

“Frederick Watkins, The Failure 93 Constitutional
Emergency Powers under the German Republic (Cambridge,

Mass., 1939), pp. 9, 133.

47Clinton Rossiter, Constitutional Dictatorship:
Crisis Government in the Modern Democracies (Princeton,

1948)! p. 33. —

 

 

 

tolrticle 48.48

play a central :0
politics. Schmit
tidy and power of
domestic peace an
miybe achieved '
He did not view t
ahogator of the
dilated his theor
Social Democrat F
Soimitt perceived
who in an Ausnahm
heileimar consti
The grave
dential emergency
"diva: legal and 1
imists the contre

iidiom of the pre

49 .
iii oiling to ti

 

89

48
to Article 48. Henceforth, the Reichspresident would

play a central role in Schmitt's approach to Weimar
politics. Schmitt's goal was always to insure the integ—
rity and power of the Weimar state. This presupposed
domestic peace and tranquility, which he believed could
only be achieved in times of turmoil by a strong president.
He did not View the Reichspresident as an Ersatzkaiser or
abrogator of the constitution. In fact when Schmitt for—
mulated his theory of presidential emergency powers the
Social Democrat Friedrich Ebert held that office. Instead
Schmitt perceived the president as a commissarial dictator,
who in an Ausnahmezustand, would act as the defender of

the Weimar constitution and state.

The grave danger of abuse inherent in the presi—
dential emergency powers created a heated controversy in
Weimar legal and political circles. Amongst Weimar
jurists the controversy surrounded the correct interpre—
tation of the precise wording and intention of Article

48.49 Owing to the frequent use of Article 48 and the

 

48Vorlesungsverzeichnis, Univ. of Bonn.

49Article 48 states: "If a state does not fulfill
the duties imposed by the Reichsconstitution or the law of
the Reich, the Reichspresident can hold it to the perform—
ance of these duties with the aid of armed force.

The Reichspresident can, when public order and
Security is considerably disturbed or endangered, take the
necessary measures in order to restore public security and

order; in necessary cases intervene with the aid of armed
force. To this goal he is allowed to temporarily suspend

 

msettled mature .
that this became ‘
oonierence of the
lawyers, held in .

Pounded i:

none than 97 memb:
only half that nun
this first confern
jurists. Particij
huiasky of Munici
teller of Leipzig
habinqen.51

0n the is
conference took 0
overwhelming opin
that the limits 0

fire enumerated i

\—._._..____

ill or a part of
114.115, 117, 11

All measc
article must be i
the Reichspreside
if the Reichstag
determined by a 1
ofitted). “Die v

50"Verhan
Staatsrechtslehrn
Venoeffentlichunn
Staatsrechtslehn

1Scheun

 

90

numettled nature of paragraph five, it is not surprising
Hut flfls became the major issue of debate at the first

mnfierence of the Association of German Constitutional

Lawyers, held in Jena on April 14 and 15, 1924.50

Founded in 1922, the Association never acquired
nmre than 97 members at its peak and normally attracted
mfly half that number to its conferences. Nonetheless,
Hus first conference included most of Germany's renowned
jurists. Participating were Stier—Somlo of Cologne,
Nmflasky of Munich, Thoma and Anschuetz of Heidelberg,
Heller of Leipzig, Jellinek of Kiel, and Bilfinger of
Tuebingen.51

On the issue of presidential emergency powers the
conference took on the form of a general debate. The
overwhelming opinion of the participating jurists was

that the limits of the Reichspresident's emergency powers

were enumerated in paragraph two of Article 48. These

 

all or a part of the stipulated basic rights in articles
114, 115, 117, 118, 123, 124, and 153.

All measures taken under paragraphs 1 or 2 of this
article must be immediately reported to the Reichstag by
the Reichspresident. These measures are to be suspended
if the Reichstag so demands . . . . The details will be
determined by a federal law" (paragraph four has been
mfitted). "Die Weimarer Verfassung," pp. 188—189.

50"Verhandlungen der Tagung der deutschen

Staatsrechtslehrer zu Jena am 14. und 15. April 1924,"
Veroeffentlichungen der Vereinigung der Deutschen
Staatsrechtslehrer, Heft 1, (Berlin, 1924).

51Scheuner, 92° cit., pp. 351, 354—355.

jurists argued the
tie seven articles
enumerated in this
federal law detail
nonresident in c
interpretations.
oiacompletion 1a
inparagraph five,
Erwin Jacc
lecturing on the d
the Jena conferenc
from the one held
Schmitt held that
Mars in times of
Save of a completi
concurred with thi

received the enornn

hri.

As a basis
5iloificant ambigu

first sentence of

\~_________

52 " Verhan

53Cc‘arl Sc
eds Reichspraesid
Verhandlungen , "
edition of Schmit
iindented as an ap

 

91

jurists argued that the Reichspresident could suspend only
the seven articles of the constitution specifically
enumerated in this paragraph. They urged passage of a
federal law detailing precisely the emergency powers of
the president in order to prevent future abuses or mis—
interpretations. For these jurists the immediate passage
of a completion law (Ausfuehrungsgesetz) , as stipulated
in paragraph five, was seen as an urgent necessity.52

Erwin Jacobi and Carl Schmitt, the two members
lecturing on the dictatorial powers of the president at
the Jena conference, presented a divergent interpretation
from the one held by a majority of their colleagues.53
Schmitt held that the Reichspresident assumes extensive
powers in times of disorder and opposed the immediate pas—
sage of a completion law detailing his powers. Jacobi
concurred with this interpretation but his lecture never
received the enormous attention later granted Schmitt's
work.

As a basis for his argument Schmitt pointed out a

significant ambiguity in the wording of Article 48. The

first sentence of paragraph two states that the president

 

52"Verhandlungen," op. cit., pp. l38-l39.

53Carl Schmitt and Erwin Jacobi, "Die Diktatur
des Reichspraesidenten nach Art. 48 der Reichsverfassung,"

"Verhandlungen," pp. 63-136. Citations are to the 1928
edition of Schmitt's Die Diktatur, where his lecture
appeared as an appendix.

can take 'necessa
security and orde
articles he may 5
noted that in tin
necessitate the s
stitutional artic
tense two could n1
he heichspreside:
me for taking a1
tine am additiona
humerated rights
hhepmmrs of
special authority
authority of the
hhse"necessary
This uniq
direct outcome of
could predict the
oonsequently be a
hnecessary to a
enumerate precise
aaasures.55 Unde
atemporary soven
\_.________._

S4Ibid. I
55

Carl S

 

92

can take "necessary measures" to reestablish public
security and order, whereas sentence two lists seven
articles he may suspend to achieve this goal. Schmitt
noted that in times of crisis "necessary measures" might
necessitate the suspension of other, nonenumerated con—
stitutional articles. Therefore, he concluded that sen-
tence two could not serve as a limitation on sentence one.
The Reichspresident has a general authority under sentence
one for taking all "necessary measures" and at the same
time an additional special authority to suspend certain
enumerated rights under sentence two. But the limitations
on the powers of the Reichspresident pertain only to this
special authority. Any attempt to enumerate the general
authority of the Reichspresident would be contrary to the

54
phrase "necessary measures. "

This unique interpretation of Article 48 was a
direct outcome of Schmitt's Decisionism. Since no one
could predict the exact nature of a crisis beforehand and
consequently be able to determine the measures that would
be necessary to alleviate the crisis, it is impossible to
enumerate precisely what would constitute future necessary

55

measures. Under Article 48 the Reichspresident acts as

a temporary sovereign during a crisis. He decides when an

 

54Ibid., pp. 225, 229.

55Carl Schmitt, Pol. Theo., p. 12.

 

nonnahmezustand e:

 

neet this crisis.
mahsolute seven
to the constituti.

The Const
touted the Reich:
htiole 48, but ti
oomissarial dict.
Assembly had been
thepeople to est.
hen the Assembly
oonstitution its ;
constitutional an:
hirer of the Reici
bound to this new
constitution unde
'either a soverei
Excludes the othe
iiStance, be tran

constitution itse

iIticle 48.58

56Carl Sc

57Ibid. ,

58

Ibid. ,

 

93

Ausnahmezustand exists and what measures are necessary to
meet this crisis. The Reichspresident by no means becomes
an absolute sovereign dictator, because he is always bound
to the constitution and the consent of the Reichstag.

The Constitutional Assembly realized that it
granted the Reichspresident unusual authority under
Article 48, but this authority was intended as that of a
commissarial dictator and not a sovereign one.56 This
Assembly had been a sovereign dictatorship authorized by
the people to establish a new legal and political order.
When the Assembly completed its work and produced a new
constitution its sovereignty ended. The newly created
constitutional and political order actually limits the
power of the Reichspresident. As a commissarial dictator
bound to this new order he could not legally destroy its
constitution under Article 48. A country can have,
"either a sovereign dictatorship or a constitution, one
excludes the other."57 The Republic could not, for
instance, be transformed into a monarchy nor could the
constitution itself be altered in any manner under

Article 48.58

 

56Carl Schmitt, Die Dik., p. 233.

57Ibid., p. 238.

 

581b1d., pp. 242, 254.

 

 

 

A Reichsp

non-enchanted co

tone 'necessary
that he receives
infringements are
tons, who seek to
hytemporarily sun
tion.59 Yet, even
tourist a basic 1
him the Reichspn
institutions ment:
theheichstag, and
It was Sc]
the Reichspresiden
tinged through a
asimple completil
deposition to the
Lav detailing the
President stemmed

he Constitutiona

liters because th

Siteration existed

 

94

A Reichspresident may infringe upon any individual
non-enumerated constitutional articles if he deems these
to be "necessary measures" to meet a crisis, providing
that he receives the consent of the Reichstag. Such
infringements are typical methods of commissarial dicta-
tors, who seek to save the constitutional order as a whole
by temporarily suspending individual parts of a constitu—
tion.59 Yet, even in an Ausnahmezustand there continues
to exist a basic constitutional and organizational minimum
which the Reichspresident cannot suspend. These are the
institutions mentioned in Article 48: the Reichspresident,
the Reichstag, and the government.60

It was Schmitt's contention that the authority of
the Reichspresident as stated in Article 48 could only be
changed through a constitutional amendment and not through
a simple completion law relative to paragraph five.61 His
opposition to the immediate passage of such a completion
law detailing the precise emergency powers of the Reichs—
president stemmed from very practical considerations.

The Constitutional Assembly granted these exceptional

powers because they realized that an abnormal and critical

situation existed in Germany. From this Schmitt inferred

 

591bid.

 

6oIbid., pp. 244-246.

6lIbid., p. 257.

 

 

fl

that the Assembly
paragraph five 1111
Germany in 1924 h
nomad state of a
viile Germany sti
bility would only
yer the existing
proposed law hind
republic, but the
thevay for revol
Carl Schm
leagues at the Je
jurists never ter
limits and correc
“hority of Weima
define the limits
President and dem
hrists like the
ihhained highly c
hihiasky, a staun

hter oppose Schn

[Hills the Reich,

\w

one.

62

   

95

that the Assembly intended to delay the fulfillment of
paragraph five until Germany returned to normality. And
Germany in 1924 hardly reflected the restoration of a
normal state of affairs.62 To tamper with the constitution
while Germany still struggled through a period of insta—
bility would only intensify the crisis and possibly endan—
ger the existing constitution itself. Not only would the
proposed law hinder the president's defense of the
republic, but the amending of the constitution would open
the way for revolutionary and reactionary amendments.
Carl Schmitt failed to persuade many of his col—
leagues at the Jena conference or thereafter. Weimar
jurists never terminated their debate over the actual
limits and correct interpretation of Article 48. A
majority of Weimar jurists persisted in their efforts to
define the limits of the emergency powers of the Reichs—
president and demanded the passage of a completion law.
Jurists like the Munich law professor Hans Nawiasky,
remained highly critical of Schmitt's interpretation.
Nawiasky, a staunch defender of parliamentarism, would
later oppose Schmitt in the famous 1932 trial Prussia

versus the Reich, where the central issue concerned the

 

621bid., pp. 258-259.

 

 

 

 

Wei powers
winery's polita'
linitations of Ar
dedomestic stat
dude in mind pron
the issue at the
idiot convened in
proposal for pass
at the conference
but later maneuve
horn succeeded in
hill into the Rei
ever passed the E
they power of th

The inter

deciding factor 1

lrudiments were u

  
  
     
  

he jurists, of
sThaitt' s cautio

heidelberg law p

  
    
   

63For an
rarliamentarism
Parties see: gig
hhiebingen, 1925)

96

63 For those with

emergency powers of the Reichspresident.
Nawiasky's political convictions the incertitude as to the
limitations of Article 48 greatly aggravated the danger to
the domestic stability of Germany.64 With this incerti—
tude in mind prominent German lawyers once again debated
the issue at the thirty—third German Jurist Conference,
which convened in Heidelberg during September 1924. A
proposal for passage of a completion law was introduced
at the conference and such a bill actually was written.
But later maneuvers in the political arena by chancellor
Marx succeeded in preventing the introduction of this

bill into the Reichstag.65

In the final analysis no bill
ever passed the Reichstag limiting or defining the emer—
gency power of the Reichspresident under Article 48.

The interpretation of Carl Schmitt was never the
deciding factor in this controversy, though later his
arguments were utilized in defense of presidential power.
Some jurists, of course, did recognize the wisdom of

Schmitt's caution. Even Richard Thoma, a well known

Heidelberg law professor who favored passage of a

 

63 . . . .
For an indication of Hans NaWiasky's defense of

parliamentarism and his attack on the critics of political
parties see: Die Stellung der Regierung _ifl Modernen Staat
(Tuebingen, 1925) .

64Hans Nawiasky, “Das Durchfuehrungsgesetz zum
Artikel 48 der Reichsverfassung," Das Recht, Jhg. 28,
Heft 20, (Sept. 20, 1924), pp- 454—468.

65 .
Scheuner, o_p. Cit., p. 372.

 

 

 

 

mletiom law. In
are stable times
inquest that imrn

heighten demands

further aggravate
political and psyn
tbefate of all r

orders and upheav.

hheGermans to st
hicbspresident, .
his ability to de
Schmitt c
Strong president .
iehmew, however,
alone could offer
ind despite his a
Modern democra
hlnewill of the

lion in direct (1

legal Society in

the methods of

 

97

completion law, recommended postponing the issue until
more stable times. He justified postponement with Schmitt's
argument that immediate attempts to pass such a law would
heighten demands for general constitutional revision and
further aggravate a volatile situation.66 But concrete
political and psychological factors actually determined
the fate of all reform proposals for Article 48. The dis-
orders and upheavals of the early Republic predisposed
the Germans to strong centralized leadership by the
Reichspresident, and they were quite reluctant to limit
his ability to deal with future crises.

Schmitt continually extolled the virtues of a
strong president as a bulwark against domestic disorder.
He knew, however, that in the long run a strong president
alone could offer no solution to the parliamentary crisis.
And despite his emphasis on the necessity of establishing
a modern democratic state form, with an identity between
the will of the people and their rulers, he saw no solu—
tion in direct democracy. In a lecture before the Berlin
Legal Society in December 1926 he stated that even though,

"the methods of direct democracy have often been

 

66Richard Thoma, "Die Regelung der Diktaturgewalt,"

Deutsche Juristen—Zeitung, Jhg. 29, Heft l7/l8r (1924),
PP. 654-664.

monarended as a
thiscorrection in

He acknow
oonstitution cont
democracy through
dunlV_°1__k3£“t$_Ch_e
provisions provid
denocracy. By a
decide a dispute
Reichstag and the
could exercise th
legislation for t
People really leg

or decide a case

“—

67cm 16
entitled, Volkser
13 huslgung deg
her ummittelbarer

\

titatnons are to

68Article
shall he brought
the Reichspreside

A law who
if at least one-‘
l0arefen:endurn 1
so petition.

An initi
ii the qualified
h111 must accomp
Shall lay the hi
the before the
Place if the req
hichstag . . . r

 

98

recommended as a means to correcting parliamentarism . .

this correction would quickly lead to a collision."67

He acknowledged that Article 73 of the Weimar
constitution contained two possibilities for direct

democracy through initiative (Volksbegehren) and referen—

68

dum (Volksentscheid) . Yet, Schmitt denied that these

provisions provide any permanent foundation for direct
democracy. By a referendum the people could themselves
decide a dispute within the Reichstag, or between the
Reichstag and the government. Similarly, the people
could exercise their right of initiative and propose
legislation for the Reichstag. In neither case do the
people really legislate. They merely propose legislation

or decide a case of conflict. Only in very extraordinary

67This lecture was expanded into a short book
2u_r Auslegung (leg Weimarefierfassung 113d zu_i*—I7ehre _v_on
5131; unmittelbaren Demokratie (Berlin, 1927) , (and all
citations are to this book), p. 51.

68Article 73 states: "A law passed by the Reichstag
shall be brought to a referendum before its promulgation if
the Reichspresident so decides within a month.

A law whose promulgation is deferred at the demand
of at least one-third of the Reichstag shall be submitted
to a referendum if one-twentieth of the qualified voters
SO petition.

An initiative shall be resorted to if one—tenth
Of the qualified voters so request. A fully elaborated
bill must accompany such a request. The Reich government
shall lay the bill together with a statement of its atti—
tude before the Reichstag. The popular vote does not take
Place if the requested bill is passed unchanged by the
Reichstag . . .," "Die Weimarer Verfassung," p. 191.

 

circumstances do
hr instance, Whi
aocepted unchang‘
rented to the per
hold combine an
process, which Sr
legislation by ti
fnrough this proc
nary legislative
cases the people
legislative authc
irregular nature
transforming it 1'
thehheichstag. '1
crate and the Com
the princely pro;
hive thinker. He
privilege or prop
future manipulati
hirthermore, he (
he entire proce:

race on this pro

V

69Carl S

soy—d.”

 

99

circumstances do the people themselves actually legislate.
For instance, when an initiative of the people is not
accepted unchanged by the Reichstag it must then be pre-
sented to the people for a referendum. This situation
would combine an initiative and a referendum into one

process, which Schmitt defines as "the procedure for

legislation by the people," (Volksgesetzgebungsverfahren) .69

Through this procedure the people legislate and the ordi-
nary legislative institutions are pushed aside. In such
cases the people themselves become the direct bearers of

70 It was Schmitt's belief that the

legislative authority.
irregular nature of this popular legislative act precluded
transforming it into an extra-legislative organ next to
the Reichstag. The joint referendum by the Social Demo—
crats and the Communists in 1926 for the expropriation of
the princely properties had obviously alarmed the conserva—
tive thinker. He held no particular admiration for royal
privilege or property, but he was disturbed by possible
future manipulation of Article 73 by extremist groups.
Furthermore, he doubted both the very democratic basis of

the entire process and the feasibility of frequent reli—

ance on this procedure.

Km

69Carl Schmitt, Volksentscheid, pp. 10, 14.

7°1bid., pp. 22, 33.

 

 

Schmitt
natural restrain
hole cannot mee
sion decide upon
nnlated and word
initiative of tho
power of formula
ence on the resu.‘
allegedly stems,
dependent upon t]
Given the questia
"fl greatly fron
dpnrticular tree
hi the minority v
the outcome. 71

Thus, th:
Salution to the t
hrsen the probln
this constitution
he father of en.
tlilieyuhlic nigh
hi endanger the
he legislative

\_——_

7lIbid. .

__.._.

72

 

100

Schmitt emphasized that modern mass society places
natural restraints on direct democracy. The people as a
whole cannot meet together in an assembly, and by discus—
sion decide upon an initiative. Such initiatives are for—
mulated and worded by a minority and then presented as an
initiative of the entire people. Those who control the
power of formulating an initiative have a deciding influ—
ence on the results. The people, from whom the initiative
allegedly stems, merely answer yes or no, with the results
dependent upon the precise wording of the initiative.
Given the question peace or war the answer would certainly
vary greatly from a question with more precise details of
a particular treaty. In addition, propaganda and agitation

by the minority controlled press would greatly influence

the outcome . 71

Thus, this form of direct democracy offers no
solution to the crisis of parliamentarism and could even
worsen the problem if extremists were allowed to manipulate
this constitutional clause. Schmitt cited the fears of
the father of the Weimar constitution, Hugo Preuss, that
the Republic might become dependent upon direct democracy
72

and endanger the young parliamentary system in Germany.

The legislative initiative of the people, therefore,

 

711bid., pp. 31—38.

721b1d., p. 51.

 

 

should not be co
equal to the leg
always decisioni
intended meaning
oases.73

By intro
ideas on contemp
himself as one o
is achieved this
theUmiversity 0
Born career came
fr0h the provinc
hierarchical ce
sented for the f
basic political

scholarship his

101

should not be considered as an extra organ of government
equal to the legislative power of the Reichstag. It is
always decisionist in character and retains its true and
intended meaning only when exercised in exceptional

73
cases.

By introducing an unending series of controversial
ideas on contemporary political issues Schmitt established
himself as one of Weimar's most influential publicists.

He achieved this national reputation while a professor at
the University of Bonn. The crowning achievements of his
Bonn career came in 1928 just as he was about to depart
from the provincial Rhine university for the intellectual
and political center of Berlin. In two books, EEE Begriff
dgg Politischen and the Verfassungslehre, Schmitt pre—
sented for the first time a specific description of his
basic political philosophy and a systematic elucidation
oflfls constitutional theory.74 Although in terms of
scholarship his work on constitutional law far surpasses

his political treatise, the latter has attracted much more

attention and criticism.75 The contentious nature of Der

 

73Ibid., pp. 47-48.

74Carl Schmitt, Der Begriff des Politischen
(Berlin, 1963), and Verfassungslehre (Berlin, 1970).

75

 

See: Mathias Schmitz, Die Freund-Feind—Theorie

—-——.—§_—_ ————————

__—______——_—______‘___

politik, Bd. 67, (1932): Pp. 732—749. Hasso Hofmann,

 

M arises d:
political. Fori
to which politic.
the distinction i
The dist
the most extreme
nassociation 0
not necessarily
the foreigner, a
nature he is in
something other
flict with him i
Comeit has mean
hinot as a net

lv .
.nsed Wlth ec Ono

Whom, genera

102

Begriff arises directly out of Schmitt's definition of the
political. For him, "the specific political distinction
Uswhich political actions and motives can be reduced, is
Um distinction between friend and enemy."76
The distinction between friend and enemy involves
thermmt extreme intensity of a binding or separation, of
mnassociation or disassociation. A political enemy is
notrmcessarily morally evil. "He is merely the other,
the foreigner, and it is sufficient that according to his
nature he is in a special intensive sense existentially
something other and foreign, so that in extreme cases con—

flict with him is possible . . . ."77 The friend—enemy

 

concept has meaning only within this existential framework
and not as a metaphor or symbol. It should not be con-
fused with economics, morals, or private feelings. Com—
petitors, general opponents, and private enemies consti-
tute no political enemy, because, "the enemy is only the

78

public enemy," i.e., hostis and not inimicus. Moreover,

 

"Feindschaft——Grundbegriff des Politischen?" Zeitschrift
fuer Politik, Jhg. 12, Heft 1 (February, 1965), pp. 17-39.
mnien Freund, L'essence d3 politique (Paris, 1965). A
complete misinterpretation of Schmitt's ideas is included
hiCharles Frye, "Carl Schmitt's Concept of the Political,"
333 Journal of Politics, XXVIII (November, 1966), pp. 818—
830. —_

76Carl Schmitt, Der Begriff, p. 26.

77Ibid., p. 27.

 

78Ibid., p. 29. Hostis refers here to the public
Political enemy and inimicus to the unpolitical private

 

his political en
hatred of one'5 i

The polin
ni'cself. It rs
from various are:
economics, nation
potentially polii
ing bindings and
neutral or polit:
since each remain
intense degree 01

occur in any para

political distinr

AM

mills in serious

Significant. Th6

103

this political enmity contains no obligation of personal
hatred of one's public enemy.

The political has no precise and immutable nature
in itself. It receives its substance, power and motivation
from various areas of human life, such as religion,
economics, nationalism, etc. All of these areas are
potentially political and at different times produce vary—
ing bindings and separations. None of these areas are
neutral or politically free spheres as liberals contend,
since each remains at least potentially political. If an
intense degree of association or disassociation should
occur in any particular area the result would be the
political distinction of friend and enemy. This only
occurs in serious cases where the degree of intensity is
significant. The decisive factor is whether or not the
motives of men, be they economic, religious, ideological,
or other, are strong enough to transform this potentiality
into a real situation of political conflict.79

One can comprehend this infamous criterion of

friend and enemy only in the context of Schmitt's concept

of the state as the political status of an organized

 

enemy. Whenever Schmitt utilizes the term enemy he means
hostis. For the historical background to these terms see:
George Schwab, "Enemy oder Foe: Der Konflikt der modernen

Politik," Epirrhosis: Festgabe fuer Carl Schmitt (Berlin,
1968).

 

 

79Ibid., pp. 20, 24, 36, 38.

 

 

people in a tern
political and t]

the state.80 Pr

may have both
aspects. The m
is war. Intern;
of an armed strr
tically through
the concept itse
he political 1i
real possibility
enemy distinctic
nation as the na
82

other nation .

is the essential

friend from the

  
 
   
  

between Scfii't—t
if the revoluti
ti0n" like Erns
fulfilling exis
mgStom of St
l-Yn 1929)“?

  

104

people in a territorial unit. The state is something
political and the political is something always related to
the state.80 Political distinctions between friend and
enemy have both their domestic and their international
aspects. The most extreme realization of political enmity
is war. Internationally war manifests itself in the form
of an armed struggle between organized states and domes—
tically through civil war within an organized state. But
the concept itself is neither aggressive nor militaristic.
The political lies not in the conflict itself but in the
real possibility of conflict and the necessary friend—

81

enemy distinction. Likewise, this concept designates no

nation as the natural or perpetual friend or enemy of any
other nation.82 On the international scene the state acts
as the essential political unit which distinguishes the
friend from the enemy, and at the same time maintains the
means with which to carry out a struggle against the

enemy. As the deciding political unit the state assumes

 

80lbid., p. 21.

 

81Ibid., pp. 33, 37. Thus, there is no connection
between Schmitt's concept of the political and the ideas
of the revolutionary conservatives of the "Front Genera—
tion" like Ernst Juenger, who saw in the struggle itself a
fulfilling existential experience. See Ernst Juenger
Eh_e Storm of Steel, trans. , Basil Creighton (Garden City,

——.

N.Y., 192977
82

 

Ibid., p. 35.

 

 

an enormous com
through its power
and ultimate arl
land the finai
and be killed. 83

The inte
its ability to a
Consequently, t]
determine the do
uals or groups n
peace and exist

Staatsfeind. 84

 

lTOups may exis‘
to the state. :
relevancy for p;

the role of Sta

  
  
     
  

trol over the d
flict achieves

Policy antagoni

   
    
   
 
    

83w.

“SPEE-
SChnitt is no
the state in 9
Wish the frie
" . . in no w
Wery man who

determined and
central system
0r corporation

105

muenormous concentration of power in itself. The state,
through its power to conduct wars, becomes the unequaled
andufltimate arbiter over the lives of men. A state can
demand the final sacrifice, that its citizens both kill
and be killed.83
The international status of a state depends upon
its ability to assure domestic order, peace, and stability.
Consequently, the state in cases of necessity must also
determine the domestic enemy or Staatsfeind. Any individ—
uals or groups which seriously threaten the domestic
peace and existence of the state fall into the category of

84 Within the state competing parties and

Staatsfeind.
groups may exist so long as they present no serious danger
to the state. Schmitt's concept of the political has
relevancy for party politics only when a party assumes

the role of Staatsfeind. If the state loses complete con—
trol over the domestic situation, and domestic group con-

flict achieves a stronger intensity than the foreign

policy antagonisms against another state, the result is

 

83Ibid., pp. 45—46.

84Ibid., pp. 39, 46-47. It should be noted that
Schmitt is not advocating here totalitarian control by
Um state in granting it this sovereign role to distin—
‘guish the friend from the enemy. This sovereign role,

. . in no way means that every detail of the life of
every man who belongs to the political unit must be
determined and commanded by the political, or that a
central system should destroy every other organization
or corporation." P. 39.

 

civil war and ti
enmy. But undo
its own enemy or:
ular group as a
A world
would disappear
between friend i
politics. As 11
of sovereign sti
enemy will rema:
Perhaps
clearer insight
the rest of his
the political an
each of his futu
political appro
which played su
hitings. Only
foreign enemies
Stability. In
lliming for the

"is to survive

lvth the domest

llrthemore, on

 

 

106

civil war and the domestic distinction between friend and
enemy. But under such conditions each group determines

its own enemy rather than the state identifying any partic—
ular group as a Staatsfeind.

A world in which the possibility of such conflicts
would disappear would be a world without the distinction
between friend and enemy, and by definition a world without
politics. As long as the world is organized into a system
of sovereign states the distinction between friend and
enemy will remain.

Perhaps no other work by Schmitt exhibits a
clearer insight into his basic outlook on politics. For
the rest of his life he would adhere to his definition of
the political and use it as the point of departure for
each of his future political works. Central to his entire
political approach is the state, the organizational unit
which played such an important part even in his earliest
writings. Only the state can protect its citizens from
foreign enemies and maintain domestic order, peace and
stability. In this respect Re}: Begriff contained a
warning for the Weimar Republic. If the Weimar Republic
was to survive as a sovereign state it must distinguish
both the domestic and the foreign friend from the enemy.

Furthermore, one cannot separate politics from other

 

85Ibid., p. 32.

 

 

 

 

areas of life an
potentially poli
religion, culturr
unrealistic. Th
derives its subs
serious crisis t
various areas of
rants, or the st
aignty.
Needless
point of Schmitt
presented in sys

this work appear

highly respected

30th Schmitt an

  
  
  
  
  
   
  
   

he as an indep
choline of publ'
the traditional

tional law with

fliture studies

hour of a more

  

86Rudol
“Mich, 1928).

107

aremsof life and society, since these areas are all
potentially political. Attempts by liberals to separate
religion, culture, economics, and law from politics are
muealistic. The political per se has no essence and
derives its substance only from other areas. In times of
serious crisis the Weimar state must either intervene in
various areas of life and society when necessity so war-
rants, or the state will abrogate its position of sover-
eignty.

Needless to say, the state was also the focal
pohn:of Schmitt's constitutional theory, which he first
presented in systematic form in his Verfassungslehre.
nus work appeared in 1928 almost simultaneously with
Verfassung End Verfassungsrecht, a book written by the
himfly respected Berlin law professor Rudolf Smend.86
BoUoSchmitt and Smend sought to establish constitutional
law as an independent branch of study within the dis-
flpline of public law. But more important they challenged
the traditional, purely legalistic approach to constitu-
Uonal law with two theories which presented politics as
maintegral part of constitutional law and government.
Schmitt and Smend not only laid a solid foundation for

future studies but also provided convincing arguments in

favor of a more politically oriented handling of

 

86Rudolf Smend, Verfassung und Verfassungsrecht
(Munich, 1928).

 

 

mtemporary con
their books maria
leimar jurists c
lonetlaeless, tha
ieiear jurists.
In promc
tend found a cc
lelsen and the m
retain the separ
had already cont
M and ti
changed. It was
constitution as

its basic norms

tressed Schmitt.

' constitution as
Specific type 0
does not have a

l constitution, '

lecial type of

 

108

contemporary constitutional problems. For this reason
their books mark a turning point in the dispute among
Weimar jurists over the relationship of law and politics.87
Nonetheless, that controversy would never be resolved by
Weimar jurists.

In promoting their respective theories Schmitt and
Smend found a common opponent in the normativeness of Hans
Kelsen and the more traditional jurists who wanted to
retain the separation between law and politics. Schmitt
had already confronted Kelsen in his work on Politische
'Nmologie and their fundamental differences had not
changed. It was Kelsen's definition of a state and a
constitution as something purely legal (i.e., the sum of
its basic norms and constitutional laws), which most dis-
tressed Schmitt. As a Decisionist Schmitt perceived a
state and a constitution as much more than a system of
norms or a collection of individual laws. He defined a
constitution as the entire concrete condition of a
specific type of political unit and order. The state
does not have a constitution, but rather, "the state is
a constitution," in that the constitution denotes a

. 88
specral type of rule and form of the state. One cannot

 

87Scheuner, op. cit., p. 352.

88Carl Schmitt, Verfassungslehre, pp. 3, ll—l6.

separate politi<
itself is actua

Althougl
cal of Kelsen’ s
Schmitt's Decis
role in Smend' 5
state and its o
e‘nich other asp
into a meaningf
constitution is
developments. 89
ill state as co
“titration, sc
Stability and 0

Schmitt
concrete pol it i
bility of the p

W

to p .
“1th 1n Ge

1
he Weimar Cons

bl a
C°nstitutp

eighty has

\

B9
SNEnc

 

109

separate politics from a state or constitution, which
itself is actually a political unit and form.

Although no Decisionist, Smend was equally criti-
cal of Kelsen's concept of the state. Just as with
Schmitt's Decisionism the state also played a central
role in Smend's "Integration Theory." Smend viewed the
state and its constitution as the institutions through
which other aspects of life and society are integrated
into a meaningful whole. Therefore, the state like its
constitution is inseparably connected with political
developments.89 But whereas Smend saw the constitution
and state as constantly developing through the process of
integration, Schmitt displayed a greater tendency toward
stability and order.

Schmitt always concerned himself with the existing
concrete political and legal situation and with the sta—
bility of the political order; which in this case was the

Weimar Republic. It is evident from Schmitt's

Verfassungslehre that he accepted the Weimar constitution

 

and state as the legitimate and legally constituted
authority in Germany. He perceived the establishment of
the Weimar constitution as an act of sovereign Decisionism
by a constitution-granting power. Since 1789 this

sovereignty has rested with the people, and as the

 

89Smend, Q. cit., p. 78.

constitutions“
oidP°1itical 1
es definitely 5
people, and at l
and against the
hole change th‘
sovereign DeciSS
oileinar.
Nonethel
nev state when 1
instead they mea
stitution to rep
state essentiall

this Schmitt

110

nstitution-granting power they decide the type and form
a political unit and order. The Weimar constitution
s definitely a "decision for democracy," by the German
ople, and at the same time a "decision for the Republic

1 against the monarchy."90

Until the German people as a
ale change the existing order through an act of
vereign Decisionism Schmitt would submit to the authority
Weimar.

Nonetheless, the German people did not create a
w state when they established the Weimar constitution.
stead they merely introduced a liberal—democratic con—
itution to replace the monarchy and left the German
ate essentially in the same form as the Second Reich.9l
this Schmitt meant that the Weimar state as a sover~
gn territorial political unit, with which the German
a
hple identify, had not changed appreciably from the old
ch of 1871. It now functions as a liberal—democratic
te, but still as a sovereign German nation—state. And
ugh Schmitt claimed that a state and constitution are
, when he refers to the political aspects of a con-

tution he often means the power of the state as a

itical unit, its government, bureaucracy, and army.

 

90

Carl Schmitt, Verfassungslehre, pp. 20-24, 77,

91
Ibid., p. 97.

 

 

inns, bl’ ”mitt
su'tution he was

But beca
lore of politica
o “to argued t
according to Sch
tutional laws ma
stitution as a w
nder Article 73
since this artic
paper and not cc
sharp distinctic
lava and the cor.

Siltlily details a

111

s, by submitting to the authority of the Weimar con-
itution he was upholding the power of the German state.
But because a constitution denotes the type and
of political and legal order within the state,

itt argued that the "constitution is inviolable."
ording to Schmitt's interpretation individual consti~
ional laws may be altered under Article 76 but the con—
dtution as a whole cannot.92 Neither can referendums

er Article 73 sanction a violation of the constitution,
ace this article merely grants the people legislative
ver and not constitutional—giving powers.93 He draws a
arp distinction here between individual constitutional
m and the constitution itself. Constitutional laws are
rmly details and subject to amendment; however, the con—
.tution determines the specific form of a political unit
iorder. Consequently, the original essence of a con—

tution could only be changed by an act of sovereign

usionism by all the German people, as was the case when

 

921bid., pp. 25—26. Article 76 states: "The con-
itution may be amended by means of legislation. Acts
the Reichstag regarding the amending of the constitu-
on are effective, however, only if two—thirds of the
pal members are present and at least two-thirds of the
asent members agree. Acts of the Reichsrat regarding
andments to the constitution also require a majority
two—thirds of the votes cast. If on the initiative of
apeople a constitutional amendment is adopted through a
krendum, the consent of a majority of those entitled

vote is required . . .," "Die Weimarer Verfassung,“
192.

931bid., p. 98.

 

 

they first estab
topic a constitu
complete alterat
ould not pass a
could transform
anarchy. Any 1
Pepublic into an
constitutional r
Schmitt stated c
anarchical prim
destruction of t
defense of the e
39m“ Signific
tonstitlltlon.
The issu
controVersy 0Ve1
lent, became par
Period! 1929493
Sllrn‘attl

SVe
&

d s
leerle“Cing one

.udes. Under ti

112

first established the constitution. Following this
a constitutional change is quite different from the
ete alteration or destruction of a constitution. One
not pass a law under Article 76, for example, that
transform Weimar Germany into a Soviet Republic or a
hy. Any law that attempts to change the Weimar

Lie into any other form of government besides a

Ftutional republic and democracy is unconstitutional.

ft stated categorically that, "the restoration of

:hical principles could only be achieved through the

uction of the constitution."94 In pursuit of this

se of the existing order he kept a consistent stand

at significant and wide ranging amendments to the

itution.

The issues of constitutional change, like the
>versy over the emergency powers of the Reichspresi—
became particularly significant during the crisis
L 1929-1933. At the time of the publication of
:t's Verfassungslehre in 1928, Weimar Germany was
.encing one of its most stable and prosperous inter—

Under the leadership of Hindenburg, who offered
dogical security to many Germans, the government
ed to muddle through with one coalition after another;
e government was at least functioning. Along with

94Ibid., p. 104.

 

pip relative 5t
It appeared that
sufficient time
eternal differe
nation of Carl
disrupt the cont
Eerenained pess
only because he
:ensions and irr
be shown by his
Scimitt's main i

toning and to e

113

elative stability went a growing economic prosperity.
eared that the Republic might survive if allotted
ient time to consolidate its power and solve its

al differences. Despite the traditional character-
n of Carl Schmitt, he never made any attempts to

t the continuation of this brief period of stability.
ained pessimistic about the future of the Republic
ecause he recognized the extent of its internal

ms and irreconcilable political factions. As will
wn by his actual political activity before 1929,
t's main interest was to keep the government func-

g and to enhance the power of the German state.

 

 

CHAPTER IV
THE POLITICS OF A CONSERVATIVE
INTELLECTUAL, 1922-1928
Throughout the short life of the Weimar Republic
nmitt never isolated himself within the ivory tower
:tualism of a university professor. He often left
wersity lecture halls for the political arena he
3 fascinating. Indeed, the political arena pro-
uch of the inspiration for his work, and his public
ty increased in direct proportion to his involvement
tical controversies. Yet, he at no time became a
ian in the strict sense of the word; rather he
the role of the political intellectual and publicist.
tuous of party politics he refused to take active
party affairs or submit to party discipline and
nda. Schmitt preserved this independence while
ally expressing his opinions on political issues
ntaining a strong belief in the necessity of
al involvement. It was his desire to avoid the

al romanticism of Adam Mueller, by making political

 

tions without opportunistically placing himself

31y in the service of just any political faction.

114

 

To
account for
everyday pc
concepts we
hisovn ori
Quite natur
himself to
authority c
lectually s
cation of t
the letter
" . to 1
‘ie desert
itinitt alp
Franz Blei,

Second edip

 

115

To a certain degree intellectual pride and vanity
for Schmitt's aloofness from the vulgarity of

y political organizing and activity. Ideas and

s were his main concerns, and he was well aware of
originality and brilliance in handling such ideas.

aturally Schmitt rejected any thought of submitting

fto the limitations of a party line, or to the

.ty of party leaders he might consider less intel—

.ly sophisticated than himself. We receive an indi-
of this intellectual vanity from several sources.

atter to M. J. Bonn, Schmitt described his desire

to find an oasis of possible discussion, here in

1 And

:ert of barbarous stupidity in which we live."
:also betrayed a similar attitude when he asked

dei, "who in Germany could write the forward to the
edition of my Politische Romantik? You cannot do it
you are too lazy, and all the others cannot

they are too stupid."2

But this intellectual vanity never blurred

's insight into the realities of power politics.
:epts were always bound to a concrete situation,
addressed himself directly to the specific political

lCarl Schmitt to M. J. Bonn, June 17, 1926, BA,

Bonn, No. 50.

7
'Franz Blei, "Der Fall Carl Schmitt: Von einem,

:annte," Der Christliche Standestaat (December 25,
1218.

 

 

id 19931 Pmble
not foalet that
lifterent sense
land} Undoubt
intellectual frc
professor of put
branded inescap
his profession a
of actual conten
:‘nese challenges
Owing to

conservative ant

 

116

al problems of Weimar. As Schmitt phrased it: "Do
get that I am a jurist, and an 'intellectual' in a
nt sense from, for example, Bert Brecht or Thomas
Undoubtedly, Schmitt was a different type of

ctual from artists and literary figures. As a

or of public law the issues he confronted often

d inescapable political choices. Unlike the arts,
fession required a precise and realistic evaluation
a1 contemporary problems; he never avoided facing
hallenges.

Owing to his reputation as a politically involved
ative and nationalist Weimar intellectual, many

3 mistakenly associate Carl Schmitt with the con—
ve revolutionary movement.4 However, the term
vative revolutionary" is only one sub-group of the
non historians call German nee-conservatism, which
5 thinkers ranging from moderates like Max Weber

ecke to Ernst Niekisch, the originator of

  
   
 
  

Bolshevism. What they all had in common was the

looking nature of their conservatism; and they

   
    
    
 
    

3Car1 Schmitt to author, March 2, 1974.

4Kohn, Egg Mind, pp, giE., pp. 336—340. Mohler,
ervative, op. cit., pp. 76, 83. George Mosse,
is of German Ideology: Intellectual Origins of
d Reich (New York, 1964), pp. 283—285. Kurt——
er, "Der Tatkreis,“ Vierteljahreshefte fuer
hichte, Bd. VII (1959), as Cited in Egn_Weimar
1930—1933, ed., Gotthard Jasper (Cologne,
200—201, 210—211.

 

 

 

 

Mp united in
naavaaualisti<
pep sought to
the nonarchYI "
of the 01d Reis
conservatives <
leinar Republi‘

Many mt
tive thinkerS,
as the "elders
republicans by
accepted the Ru
sust function.
enbraced the R
lives their 1

sovenent withi

 

117

united in their opposition to the mechanized and
idualistic bourgeois world. In one manner or another
sought to rejuvenate conservatism after the fall of
onarchy, without pursuing a reactionary restoration

e old Reich. But here the unity ends. For neo-
rvatives differed greatly in their response to the

r Republic.

Many members of the older generation of conserva-
thinkers, like Weber and Meinecke, often referred to
e "elders," became Vernunftrepublikanern, i.e.,
licans by reason rather than sentiment. These elders
ted the Republic as the political order in which they
function. Although they never enthusiastically
med the Republic they never worked for its overthrow.
5 their intention to develop a conservative political
ent within a republican framework. They rejected the
:mism of many of their fellow conservatives who urged
ional revolution from the right, or who actively
pted to undermine the Republic.

The national or conservative revolutionaries were
elves a very diverse grouping of intellectuals and
ical publicists, united only in their anti-
licanism and in fostering a vague doctrine of a
nal revolution. Generally Moeller van den Bruck's

The Third Reich, served as an ideological focal

 

with which these various individuals and groups

 

 

could identifY-
or conservatiVE
Reich, which WC
alien and conse
coherent or agl
this new consez
lone, like OSWE
socialism uniti
and capitalism;
sued to retair
Christianity.

:onservative re
:ion or a natic
values. Moreon
“Eleni a distir

nonalisn, a te

118

dd identify. These thinkers believed that the national
conservative revolution would usher in a new Third
ch, which would represent the ideals of German nation—
sm and conservatism. But they failed to develop any
erent or agreed upon View as to the actual nature of
s new conservative Reich, and the means to achieve it.
e, like Oswald Spengler, advocated a form of Prussian
ialism uniting all Germans at the expense of liberalism
capitalism; while others, such as Wilhelm Stapel,
ed to retain a link between their movement and
istianity. There was no agreement as to whether this
servative revolution would consist of an actual revolu—
n or a nationalistic revival of traditional German
ues. MoreOVer, the conservative revolutionaries dis—
yed a distinct inclination toward extremism and irra—
nalism, a tendency most noticeable in their uncompro-
ing disdain for the Republic. In contrast to the
ars or Vernunftrepublikanern, who came to terms with
Republic, the conservative revolutionaries saw in
nar the manifestation of all that they detested, and
(looked forward to its demise. Along with their
Lllingness to make the best of the Republic the con—
ative revolutionaries demonstrated an explicit and
sponsible disregard for its security and future.
On this very significant issue of the Republic

,Schmitt most clearly separated himself from the

 

 

consen
:ltely
future
approac
he elc'
:evolut
lealisn
ioninat
philosc
:ionaq

the est

\

119

:rvatives of the national revolution. Though defi-
y a conservative with many reservations about the
e of Weimar, Schmitt was a Vernunftrepublikaner, who
mched the Republic with a similar attitude to that of
elders. Before 1933 he made no mention of a national
.ution nor even hinted at a future Third Reich.
.sm, and not irrationalism or hopes for a revolution,
ated Schmitt's thinking. His entire political
sophy opposed the disruptive consequences of revolu—
ry change and he always supported the maintenance of
stablished order. Carl Schmitt never involved him-
with attempts to undermine the Weimar system; instead
cepted it as the existing political situation of the
n people. He voiced severe criticisms of the system
effort to arrive at viable solutions to the problems
imar; and there was much to criticize. Still, even
is criticism we notice the attitude of the
nftrepublikaner. For Schmitt consistently argued
st solutions which concerned tampering with the
ing system, since he feared such tampering might
extremist groups and parties an opportunity to
it the situation.

Only by age could one categorize Schmitt as a
: of the war generation from which many conservative
itionaries emanated. This particular group of con-

:ive revolutionaries became known as the "front

 

 

general
‘renche
enerie
ntlool
and the
solutit
itse
ghilos<

activis

u con;

120

ion." Four years of tragic struggle in the

5 provided them with a cohesive bond of common
nces, which preconditioned their future political

. Their most influential experience had been war
y came to accept war, revolution, and action as

ns in themselves.5 War and struggle became an end
If. This war experience was the guiding political
phy of thinkers like Ernst Juenger, and political
ts like Franz Seldte, leader of the Stahlhelm.
hough he is often placed in the same category as
'end Ernst Juenger, the war experience itself had
arable influence on Carl Schmitt. Never having
at the front Schmitt remained isolated from the
experiences of war so vital for figures like
: and Seldte. Schmitt did not consider struggle,
action as ends in themselves. He conceived of war
armed conflict between organized political units
:eme cases. The struggle itself had absolutely no
I; he based his friend-enemy distinction solely on
entiality of the conflict. War was a fact of

a1 life, and certainly nothing to be desired or
d. Of significance to Schmitt was not the indi—
taking part in the conflict, but war as an aspect

5Klemperer, New Conservatism, 92. cit., p. 47.

 

In

121

itics between sovereign states.6 It was, in fact,
rpose of the state to assure peace and order and to
te the chances of struggle.

With the front generation and other conservative
tionary groups, Schmitt shared some of the intel-
l aspects of the "ideas of 1914," which were anti—
, anti—bourgeois, and anti-liberal. These intel—
l affinities, however, were also held by many con—
ives who, like Meinecke, became Vernunftrepublikanern.
f these attitudes remained with Schmitt throughout
fe, without interfering with his sharp sense of
m and his ability to adapt to newly developing
ions. Like conservatives since the French Revolu—
Schmitt retained a pessimistic view of human nature
paid special attention to the irrational and
ious nature of life. In an age of mass politics he
ized the psychological and political significance
ational behavior, though he never promoted irra-
Lsm as a political doctrine. Now a widely accepted
: among political scientists, the recognition of
rational element in politics was never an insight
I only to conservative revolutionaries.

Furthermore, Carl Schmitt had no direct contact

nservative revolutionary circles before he moved to

6Carl Schmitt Der Begriff, op. cit., pp. 33—35.

 

 

3erlin
stage.
tionari
as the
became
lectual
Seinric
Lectua]
Eugen I
such tl

:lonari

122

the Weimar Republic reached its final crisis

 
  
  
 

me of the more important conservative revolu—
were associated with several organizations such
itisches Kolleg and the Juniklub, which later
Herrenklub. This group consisted of intel—
ike Moeller van den Bruck, Martin Spahn,

on Gleichen, and Wilhelm Stapel. The intel—
ho rallied around the newspaper gig Tat of

erichs and Hans Zehrer formed another center of
ht. What interest these conservative revolu—
had in Schmitt, they developed only after 1928.
Schmitt was never a member or close associate
Drganizations. While Schmitt continually
lectures at the republican oriented Hochschule
EEK in Berlin, he was neglected by the conserva—
Lutionary circles of the Politisches Kolleg.

lO mention of Carl Schmitt in the files of the
as Kolleg before 1928 and then only concerning
rns. And Schmitt's name does not appear on any

'viving membership and contributor lists of

. . 7
ve revolutionary organizations. Before 1928

hese include: Gewissen (1920-1924), ger Ring
), Herrenklub (Berlin and local groups),
vativen Vereinigung Eng Einzelverbindungen,
litisches Kolleg (1922—1923). See: Hans Joachim
tt, Arthur Moeller van den Bruck BBQ ger

aere Nationalismus ififdéifWeimarer Republik

1, 1962), appendix. Politisches Kolleg , BA,
., 15, 21, 28, 34, 35, 46, 63, 64. Neither is

 

 

 

Schuit
:onser
period
conser
lot th
erecut

ical a

iniire

 

ublished nothing in any of the journals of a
ive revolutionary nature. Later during the crisis
30-1933 he published a few articles in various
've journals like ger Ring and Deutsches Volkstum.
articles dealt with the immediate crisis and the
of state power to preserve the existing polit—
egal order.
e argument is often made that Schmitt's real
on the conservative revolutionary movement was
through his writings and ideas, that he placed
of thinkers like Spengler on a scholarly
1.8 This contention assumes that Schmitt's
a attuned to the ideological tenets and goals of
:vative revolution, an assumption which his
Litical ideas and behavior tend to negate.
;chmitt's works contain no direct reference to
of Spengler, Moeller van den Bruck, or other
.ve revolutionaries, and he lent no credence to
,5. After 1928, of course, some of Schmitt's

t utilized by conservative revolutionaries, but

were sometimes utilized by the left as well.

name listed among the one thousand members of
klub as cited in Deutscher Herrenklub (n.d.),
curt von Schleicher, BA, Militaerarchiv, Freiburg,

 

iohler, Die Konservative, op. cit., p. 76.

Mind, gp. cit., pp. 336-337. Mosse, The Crisis,

p. 283.

 

 

issues
bath 5:
social:
a hats]
:epts,
sharplj
il equ
viewed
lespin

lchnit

 

124

itt was one Weimar critic among many and the
confronted were issues of common discussion on

s of the political and ideological spectrum. The
political and legal theoretician, Herman Heller,

ritic of Schmitt, also dealt with similar con—

ough from a very different perspective.9 He

isagreed with Schmitt's theories while assuming
y anti-liberal position, and like Schmitt, he
mogeneity as one of the essentials of democracy.
he mutual enmity betWeen the left and Carl

his ideas concerning liberalism, dictatorship,
ritique of parliamentary government and political

ere used by Karl Mannheim, Robert Michels, Otto

11

er, and other leftist thinkers. Naturally,

Hermann Heller, Europa und der Fascismus (Berlin,

sf und Voelkerrechts (Berlin, 1927).

oHermann Heller, “Politische Demokratie und
omogenitaet," Probleme der Demokratie (Berlin,
38, 40-41, and forward by Arnold Wolfers to

1Karl Mannheim, "Competition as a Cultural

n," (1928), and "The Democratization of Culture,"
{gm Karl Mannheim, ed., Kurt Wolff (New York,

. 248, 291. Robert Michels, Zur Soziologie des
egg in der modernen DemokratiE?_Untersuchungen
Oligarchischen Tendenzen deg Gruppenlebens

, 1924, New York, 1970), ed., Werner Conze, pp.
59, 410. Otto Kirchheimer, "The Socialist and
Theory of the State," (1928), Politics, Egg

1 Change: Selected Essays of Otto Kirchheimer,
eric Burin, Kurt Shell (New York, 1969), pp. 6,

8.

 

 

 

Schni'
iiuitl
or' the
est op
select
iecrsi
tionar
Lie er

patdin

L. ...............

125

's appeal to the left was minimal and generally

to his critique of liberalism. Towards the end
Republic the left viewed him as one of their great—
onents. Likewise, the radical right was also very
ve in its use of his ideas, and he exercised no

a influence on the thoughts of conservative revolu-
as. They accepted his critique of liberalism and
asses of pluralistic party politics, while disre—
his commitment to the stability of the Republic.
During his Bonn years Carl Schmitt's political
:ion was mostly with Catholic groups and the Center

He became one of the most prominent spokesmen for

 

rl Catholicism in the Weimar Republic.12 Aside

ral journals, most of his articles were published
latholic press, particularly in Hochland, and the
pr organs of the Center Party, Germania and the
fle_Volkszeitung. In the Nazi era Hochland became
he resistance journals. Only in 1932, after
broke with the Center Party, did Hochland begin

icism of the Catholic jurist.l3 For most of the

12Hermann Hefele, "Zum Problem einer Politik aus
olischen Glauben," Abendland, Jhg. 2, Heft 7
1927). P. 195.

13See: Konrad Ackermann, Der Widerstand der

rift Hochland gegen den NationalSOZialismus

1965), pp. 124, 183 Erich Brock, "Der Begriff
:ischen——Eine Auseinandersetzung mit Carl Schmitt,"

, Jhg. 29, Heft 11 (1932): pP- 394-404.

 

 

 

trenti

public

holes
Center
as he

:ions

 

126

his ideas appeared acceptable enough to warrant

ion in these journals and papers.

Refusing to accept party membership Schmitt, none-
associated quite closely with the politics of the

arty for several reasons. A devout Catholic, he
to a family tradition which represented genera-
support for the Catholic political cause. As

of the Catholic clergy his great uncles took an

art in the Kulturkampf against Bismarck, and his

arried on this tradition by his membership in the

’arty. Considering this heritage it is quite under—

.e that Schmitt should have numerous personal

and working acquaintances within the party.14

illy Schmitt perceived the Center Party as the

the entire Weimar system, without which no coalie

rld be formed. He viewed the Center Party as the

‘ stabilizing force in Weimar politics, and the
committed to the existing constitutional order.

Schmitt also developed friendships with Catholic

‘tuals outside of the party. In addition to the

.an Hans Barion, Schmitt influenced the writings
Hugo Ball and Waldemar Gurian. Upon first read—

dtt's early Weimar works, Hugo Ball was exceed—

pressed. Ball wrote to his wife that Schmitt

l . . .
4Carl Schmitt, First InterView.

— m. its-a 7:; S. .

 

betweer
Jewish

became

127

15 Schmitt

tholic thinker is a new type of Kant."
admirer personally in the summer of 1924 and.
er they corresponded until 1925. At the height of
usiasm for the Bonn professor, Ball published an
e article in Hochland, honoring Schmitt as the

of Catholicism and European civilization.

Far more important, however, was the friendship
Schmitt and Waldemar Gurian. A Russian emigre of
escent, Gurian had converted to Catholicism, and
ne of the most significant Catholic publicists of
er half of the Weimar Republic. Before turning to
ce writing Gurian worked on the editorial staff of
nische Volkszeitung. Schmitt and Gurian estab—
heir relationship in 1924 and it lasted until
urian attended Schmitt's seminars at the University
and the two families frequently socialized to—
Forced to emigrate after the Nazi seizure of
irian launched a series of vehement attacks in
.gn press against his former mentor Carl Schmitt.
lent the final years of his life as a professor

SHugo Ball to wife, November 23, 1923 and

1923; Ball to Carl Schmitt, November 19, 1924,

, 1925, January 27, 1925, February 11, 1925; Ball
rchtwanger, March 25, 1925; in Hugo Ball Briefe
(Einsiedeln, 1957), pp. 164, 171, 191, 194,

208, 313.

Hugo Ball, "Carl Schmitts Politische Theologie,"
Bd. 2 (April—September, 1924), pp. 263—286.

l‘
t

 

 

128

lniversity of Notre Dame.17 Like Hugo Ball, Gurian
acially enchanted with Schmitt's political

:ism and his anti-liberalism, as expressed in

325 Katholizismus E29 Politische Form. As a fanati—
i—Bolshevik, Gurian was attracted by Schmitt's

stand against Bolshevism, and much of the termin-
nployed by the young Gurian was taken directly from
hmitt. 18

Schmitt also had some personal contact with

h Bruening, and in 1930 Schmitt fully supported the
5 of the Catholic chancellor. At a 1928 conference
alic intellectuals and other leaders, hosted by the
ester Kreis in Boppard, Schmitt and Bruening par—

19

ad together in the discussions. Schmitt claims

:er Bruening wanted to place his name on the ballot

l7Heinz Huerten, Waldemar Gurian: Ein Zeuge der

.serer Welt in der ersten Haelfte des 29.

erts (Mainz, 1972), pp. 12—13, and Deutsche Briefe:
t der katholischen Emigration, Bd. II, ed.,

erten (Mainz, 1969), p. xxxv.

8See also: Waldemar Gurian, "Carl Schmitts
ngslehre," Germania (April 18, 1929).

 

 

LgGottfried Treviranus, Das Ende von Weimar:
Bruening und seine Zeit (Vienna, 1968), pp.

 

 

129

t he refused in order to maintain his independence
rty control.20
One cannot strictly speaking consider Schmitt as a
the Center Party, since he never actively took part
:y politics. He supported the Center Party because
it as the only true constitutional party. His
:al relationship with the party was restricted to
support of the Centrist position on several crucial

al and constitutional issues. Usually Schmitt

ed this support in articles released in the

 
 

Che Volkszeitung, and in Gutachten regarding con-
onal questions. Very often his articles concerned
currently before the Reichstag, or of immediate
importance. With each issue he attempted to pre—
mself as a neutral commentator standing above the
ts of struggling political parties. Although his
a1 opinions normally coincided with the position of
ter he did manage to maintain his independence.
Late twenties he disassociated himself from the

s of the Center Party, when he believed it was

r opportunist and when it differed with his inter—

n of the constitution.

20Second Schmitt Interview. Bruening and Schmitt
:ontact after 1945. See: letter, Bruening to
December, 1955, Carl Schmitt——Personal Papers.

()

 

130

Having a congenial personality and searching mind
t enjoyed contact with individuals of different
cal and ideological orientations. M. J. Bonn, for
e, was an outspoken defender of the Republic and
l democracy. Bonn had been a member of the German
elegation at Versailles and afterwards served as a
of the gold delegation at the League of Nations.
i-liberalism of Schmitt and his frequent criticisms

ailles and the League did not interfere with the

e friendship between the liberal and the conserva—
ofessor.21
Bonn brought Schmitt into contact with the demo—

ally oriented Hochschule fuer Politik in Berlin.

 

Schmitt occasionally delivered lectures and came
)ntact with other defenders of the Republic such as

: Heuss. At one time the Hochschule considered

22

: for a permanent academic appointment. And

by no means reflecting the general political views

institution, or figures like Heuss, Schmitt con—

to lecture there until 1933.
In spite of the diversity of his intellectual

tances, Schmitt feared the diversity of political

21 .
Bonn, S9 Macht, op. c1t., pp. 330-332. Nachlass

35., 49, 50.

22Theodor Heuss, Erinnerungen, 1905-1933

Jen, 1963), pp. 300—304. Wolfers, Probleme,

 

 

 

KIEBDA

 

131

ns dominating German politics. He saw the essential
m of Weimar in the fact that its constitution was a
mise. The Germans had failed to make a definite
on between contradictory political, social, and
ic philosophies. Instead they attempted a compromise
ht and left, conservatism and socialism, within a
l-democratic framework.23 Fortunately, a second
ise, one between church and state, satisfied the
ic Center Party and as a result it became the center
entire system. Doubting the willingness of other
to accept the Weimar compromises, Schmitt con-
the Center the only real constitutional party,
a, in his view, it was the only party firmly com—
to the existing constitutional order.24
The other aspects of the constitutional compromise
Led very few and this compromise could not be
l over into the political arena. In effect, Weimar
pluralistic party state, in which several antagon—
uarties faced each other. These parties represented
t interest and ideological groups, without the

23Carl Schmitt to Erich Kaufmann, 1921, "Schmitt,

. Prof., "Sicherheitsdienst des RFSS SD Hauptamt

E fuer Zeitgeschichte, Munich, AKZ 4062/68 Fa 503,
p. 186. Carl Schmitt, Verfassungslehre, op. cit.,
5.

 

3

24 . .
Carl Schmitt First InterView. Carl Schmitt's

to a proposed Italian edition of his works
.shed manuscript, August 1971).

K~V~ill

 

132

ibility of compromise.25 The promising note of a

blican majority which existed in the Weimar Assembly
kly disappeared. The Weimar coalition of SPD, DDP,
Center lost the majority in 1920, never to regain it.
eforth, incompatible parties had to be brought

ther in order to form any majority government. Only
Catholic Center Party offered the opportunity for the
ssary political compromises and all coalitions

nded upon its cooperation.26 As the only party which
across social and economic classes, which at the same
was bound to the constitutional compromise of church
state, the Center Party, according to Schmitt's esti—
on, was the pivotal party in the Weimar system. The
er presented the best chance of achieving the sta-
ty Schmitt so cherished.

It was in this atmosphere that Schmitt began

lg a public stand on political issues. His first
Lc declaration on a pending political issue serves as
:cellent example of his basic approach to the Weimar

:itution and politics.27 Reichspresident Ebert had

 

25Bracher, Die Aufloesung, gp. cit., pp. 20—24.

261bid., pp. 67, 75—82.

 

27Carl Schmitt, "Nochmalige Reichstagsaufloesung,"
ische Volkszeitung No. 836 (October 26, 1924),
ssungsrechtliche Aufsaetze aus den Jahren 1924-1954
In, 1958), pp. 13-28, and "EIHHSIngeit' und
:her Anlass' bei der Reichstagsaufloesung nach Art.

 

 

 

 

133

olved the Reichstag on October 20, 1924, owing to the
ility of chancellor Marx to form a government that had
confidence of a majority of the deputies. The elec—
s of the previous spring had shown a marked trend
he right. Although the Center Party remained stable
major partner in the coalition, the SPD, lost 71 seats.
extensive gains made by the Nationalists and Communists
ented the formation of a governing coalition. Here
a clear instance of the pluralistic party politics
itt criticized throughout the Weimar period. He
ced that two of the most serious constitutional and
tical problems of Weimar were involved, the dissolving
:he Reichstag and the building of a viable majority
ernment.
Under normal circumstances the constitution was
e clear about the proper procedure for dissolving the

28

hstag. But Schmitt held that the current problem

who decides, in a doubtful case, what constitutes "the
reason" (gleiche Anlass), as stipulated in Article

9 . . . .
He also argued that interpreting this article too

 

3r Reichsverfassung," Archiv des oeffentlichen Rechts,
3 (1925), PP. 162-174.

28 . . .
Article 25 states: "The ReichspreSident can

rlve the Reichstag only once for the same reason

the Anlass). The new elections will begin at the
t sixty days after the dissolution." Die Weimarer
ssung, p. 185.

29

Carl Schmitt, "Nochmalige," op. cit., p. 13.

 

-a,

134

iterally could paralyze the entire governing process and
ndermine the constitution itself. By this Schmitt meant
hat the failure to form a majority government was not
ubject to the phrase "only once for the same reason,"

or the entire constitutional workings of the government
apended upon the formation of a viable governing

30

fjority. Thus, the Reichstag could once again be dis—

Flved, without violating the true nature of Article 25,
F the event that a viable majority was still lacking

Eter the election.31 Terms like "only once" and "the

me reason" were relative rather than absolute concepts.
iese terms should be bound to the concrete political

rse at issue.32 Otherwise, Article 25, literally inter—
eted and applied to this problem, would make the con-
itution nothing but a pure formalistic document with
prelationship to the actual existing political situa-
on. It could also become the tool of anti-
nstitutional and disruptive political groups seeking to
ralyze the government by, on the one hand, preventing

a formation of a majority government, and on the other,

eventing new elections which might return such a govern—

! majority. If this occurred, either an intolerable

x“

 

 

3oIbid., pp. 16—17.
31Ibid., pp. 25-26.
32

Ibid., pp. 21, 23.

 

 

135

ration would endure for four years, or a fictitious new
son for dissolution would have to be invented.33
Rather than intending any violation of the consti-
ion Schmitt wanted to assure that the essential opera—
is of government would continue unhampered by the dire
sequences of a too literal interpretation of the consti—
hon. The constitution for Schmitt was more than a
ection of individual laws; it must be considered as a
e. Individual laws must never be allowed to serve as
:etext for anti—constitutional elements to impede the
:tioning of government and endanger the entire consti-
.ona1 order. If Schmitt favored any cause in this
roversy it was that of chancellor Marx and the parties-
he Weimar coalition. The groups most likely to bene—
from the literal interpretation that Schmitt opposed
the extremists, the Communists, Nationalists, and
s. In 1927 Schmitt specifically warned against the
ible use of a vote of no confidence under Article 54,
n obstructionist tactic by the Communists and German

34 During the presidential system of late

analists.
ar the formalistic interpretation of constitution, as
as the misuse of Articles 25 and 54, became points

rntention between various political factions and

 

3 .
3Ib1d., p. 26.

 

34Carl Schmitt, Verfassungslehre, QB: cit., p. 345.

 

136

the government itself. When Schmitt first pro—
ris interpretation Ebert was still Reichspresident,
a one Who would decide in doubtful cases.

The continued functioning of the government and
pger presented by extremists and pluralistic party
its remained a constant concern for Schmitt. This
temost in his mind when, upon the death of Reichs-
ent Ebert in 1925, Schmitt publicly voiced his

pon the election of a new president.35 Schmitt's

resis was that party loyalties and discipline should

 

‘ermine the selection of the new Reichspresident.

he Weimar constitution all of the German people

dly elect the Reichspresident, and this method acts
unter weight to the system of proportional repre—
on and party lists. The Reichspresident should

e trust of most of the German people and avoid

g the tool of party programs and interest groups.
alls under the control of one party the potentially
is abuse of presidential power is extraordinary.
ring party united with the office of Reichspresident
the possibility of a constitutional dictatorship.
respect Schmitt noted that ". . . no constitution
can so easily legalize a Staatsstreich as the

35Carl Schmitt, "Reichspresident und Weimarer

ng," Koelnische Volkszeitung, No. 198 (March 15,
. 1.

 

Heine

plura
pro-t
rat'ne
when
const

this

137

ar constitution."36

Theoretically, a two—thirds vote
1e Reichstag guards against this possibility, but the
alism of Weimar parties prevents the cooperation of
:hirds of the deputies. Schmitt also presented some
er ominous questions about the fate of a democracy

a democratic majority is lacking and when anti-
iitutional parties paralyze parliament. To prevent
the office of president requires an individual to

e as a pouvoir neutre who, standing above parties and

.al interests, will assure the smooth functioning of

state. Ebert had followed such a policy of the

 

xal force;" there was a danger his successor may
7 Therefore, careful attention must be paid to the
hality of the new Reichspresident, rather than to
olitical party.

Schmitt's own choice was not clear. That he pub—
d in a Centrist newspaper, stressed the immense
rs involved, and advocated a constitutionally bound
31 force, however, presents several indications of
:eference. The extremist parties offered the
est danger and were totally unacceptable to Schmitt.

Icial Democrats he denounced by name as advocating

1y a party candidate and making the election an

 

36Ibid.

 

37Ibid.

 

 

 

138

e of party prestige and loyalty. Neither was Schmitt
orting the candidacy of Hindenburg, since when Schmitt
ished this article Hindenburg was not included in the
n candidates presenting themselves in the March 29,
tion.38 Because of his close affiliation with the
olic position, and his belief in the Center as the
true constitutional party, Schmitt probably favored
cellor Marx. There is no evidence regarding Schmitt's
es in the runoff election of April 26, between Marx
Hindenburg. But it is doubtful that Schmitt would
abandoned the Center in favor of Hindenburg, a can-
te of the rightist parties which were very antagonistic
he existing constitutional and political order.

Schmitt's desire to maintain the status quo of

Neimar legal order was also clear from his stand

   
   
   
  
  
  
    

st the further democratization and socialization of

epublic. One of the most emotional controversies of

involved the debate over the properties of the former
. . 39 . .

ties and princes. This issue demonstrated one of

tt's elusive qualities, and illustrated his ability

vor a legal over a political decision and to favor a

a1 interpretation of the constitution in certain

 

 

9Cuno Horkenbach, ed., Das Deutsche Reich von

bis Heute (Berlin, 1930), pp. 225, 228.

 

 

 

 

139

ances. Schmitt had already advocated a legal decision

he matter in 1922.40 In a Gutachten he now opposed two

5 introduced by the Communists and the Democratic
y regarding the expropriation of the princely prop—
41

es. Both bills he considered as unconstitutional and

revolutionary nature, and also as violating Articles

105, and 109.42

By making laws so specific as to

r only to the princely properties in question, legis-
rs would interfere with a judge's right independently
nterpret the law, thereby subjugating the judges to
legislature.43 And in directing these laws against
specific German citizens, legislators deny these
viduals equality before the law. Schmitt compared

a proposed laws with the anti—jesuit and anti—socialist

of the former Reich.44 Such laws were nothing less

    
     
     
    
 
   
  
   
  
    

40Carl Schmitt, "Die Auseinandersetzung zwischen
ause Wittelbach und dem Freistaat Bayern," Koelnische
zeitun , No. 436 (June 6, 1922).

41Carl Schmitt, Unabhaengigkeit der Richter,
hheit vor dem Gesetz und Gewaehrleistung des
teigentums nach der Weimarer Verfassung: Ein Rechts-

hten zu den Gesetzentwuerfen ueber die Vermoegen—

 

inandEfsetzung mit den frueher regierenden
tenhaeusern (Berlin, 1926).

42Article 102: "The Judges are independent and
ct only to the law." Article 105: "Exceptional courts
Orbidden." Article 109: "All Germans are equal before
aw.“ Die Weimarer Verfassung, pp. 197—198.

43Carl Schmitt, Unabhaengigkeit, 92° cit., pp. 9—10.

44Ibid'l p. 20.

 

—&-’i r- '* 7

 

140

he type of political measures possible only during
volutionary months of 1918-1919, when a sovereign
orship ruled Germany. Since that time the German
have established a constitutional state and no
tutional party can now propose revolutionary

45
es.

Over fifteen million Germans disagreed with
t's constitutional interpretation and voted in favor
ropriation in the June 20, 1926, referendum.
r revolutionary or constitutional in character the
returns fell five million short of the necessary
for a constitutional amendment. The defeat of the
as hardly a positive sign for the conservative
t, who viewed it as a dangerous precedent. He had
cial sympathy for the privileged remnants of the
nian Reich. One year before this he had defended,
ther Gutachten, democratic and equal voting rights
the new constitution against the privileges of the
:lass voting system of the Second Reich.46 Of
, the preservation of the German state structure
old Reich, as adopted by the Weimar Republic, was

45Ibid-, pp. 26—27.

 

46Carl Schmitt, "Gutachten zu der Frage der

mg der Wahlordnung fuer das Saargebiet vom 29. IV.
lf die Gemeinde Saarlouis-Roden," unpublished manu—
(Bonn, July 22, 1925), BA, Nachlass Richard

Bd. 47.

_- wfi. .

141

>f his first priorities. But the princely houses and
-repub1ican politics had absolutely no role in this
me. The real fear of Carl Schmitt was that such
:endums sponsored by extremist parties would open the
i gates to further revolutionary and socializing

ires.

Examples of Schmitt's sincere interest in maintain—
iomestic peace and tranquility, and of his tolerance
1e Republic, are also evident in his resistance to
titutional changes proposed by the right. From 1926
929 there were several proposals for constitutional
sion, strongly supported by the German Nationalists,
German People's Party, and right-wing groups around

nberg and veterans' organizations like Seldte's

    
  
  
   
   
  
   
 
  

helm. These proposals included the establishment of
0nd Chamber of parliament, indirectly elected, to

ce the Reichstag and act as an Upper House. A

ed demand involved amending Article 54 of the consti-
n in order to allow the government more power and
endence from the Reichstag.47 Both proposals were
ded to weaken the popular and democratic aspects of

onstitution. One of the greatest opponents of these

rvative and reactionary reforms was the Center Party.

    
    

47BA, Reichskanzlei, 1919—1933, R—43—I,
hsverfassung, (1919-1926)," 1864, "Reichsverfassung,
-1933),“ 1865.

142

although he made no immediate comment on these pro-

15 in the public press, Schmitt consistently agreed

 

lthe Center Party's opposition. His constitutional
ings at this time display a categorical repudiation
he idea of a Second Chamber and he never supported
hwnts to Article 54.

Though a devastating critic of parliamentary

tnment and of pluralistic party politics, which

 

ered the functioning of the government, Schmitt still
ed the constitutionality of a Second Chamber. Since
msidered the basis of democracy as homogeneity and
ity, he held that "the political consequences of a
racy must contradict the Two Chamber System."48 An
endent Second Chamber would endanger the unity of the
n and present a duality in the legislature which
sedly represents the will of the people.49 The con-
of a Second Chamber either recognizes certain note—

y characteristics of certain individuals within the

n, such as education, age, or property, thus violating
emocratic concept of equality of all citizens, or it
mot recognize these special traits and thereby

rates the need for a Second Chamber.5O

 

48Carl Schmitt, Verfassungslehre, 9p. cit., p. 294.

49Ibid.

 

50Ibid., pp. 294—295.

 

 

143

Rightist movements to strengthen the power of the
nent by amendments to Article 54 likewise received

port from Schmitt.51

Through these amendments

st groups, especially the German Nationalist Party,
to make the government less responsive to the will
Reichstag. This was one stage in their overall

0 institute their reactionary, anti—constitutional

,ti-republican programs by constitutional means.

mg central government in Schmitt's estimation was

.necessary element in the politics of a state. He

;ed the fact that the government was so dependent

he changing and unstable groupings within the

tag. Nonetheless, he felt that the executive

.already had sufficient and extensive constitutional
to cope with the situation. Schmitt was always

cal of constitutional revisions which were intended

troy the republican nature of the constitution.52

luctance to alter the constitution continued even
the crisis period 1930-1933. Instead he urged that

ichspresident exercise the enormous constitutionally

l powers at his disposal.

51Article 54 states: "The Reichschancellor and

inisters require the confidence of the Reichstag
ir administration. Each of them must resign, if
:hstag withdraws its confidence through a formal
ion." Die Weimarer Verfassung, p. 189.

52Carl Schmitt, Verfassungslehre, op. cit.,
114, 196-197, 303, 356—359.

 

 

 

144

One of the crucial constitutional provisions of
presidential power was Article 48. Where the right per—
ceived this article as a potential instrument for under—
mining the Republic, Schmitt hailed it as a method of
preserving the existing constitution and state. Weimar
democrats and leftists agreed with neither of these inter-
pretations and persisted in their efforts to propose
strict limitations on the Reichspresident, by precisely
enumerating his powers under Article 48. The question had
been an issue at the first meeting of the Association of
German Jurists and the German Jurist conference in 1924.
An overwhelming majority of jurists, excluding Schmitt and
Jacobi, urged passage of a completion law, and bills were

actually drafted.53

Passage of a completion law once again became a
public issue in 1926. The Democratic faction of the

Reichstag initiated a demand for the regulation of Article

54

48 through a federal law. Democrats claimed that there

had been extensive abuse of these powers during the period
of inflation and that now the enemies of the Weimar consti-
:ution intended to use Article 48 to introduce their
flotatorship plans. In the end this law suffered the

ame unfortunate fate of earlier proposals. But before

M.—

53Scheuner, op. cit., pp. 371—372.

54BA, R—43—I, "Art. 48 der Reichsverfassung,
924—1930)," 1870.

145

subsiding the controversy elicited a similar response from
both Carl Schmitt and Hindenburg.

In an article of October 30 in the Koelnische
Volkszeitung, Schmitt reiterated the viewpoint he pre—

sented at the Jurist conference two years earlier.55

It
was impossible to enumerate what "necessary measures" a
Reichspresident may utilize in an Ausnahmezustand. Such
regulations are based on norms which, in a state of
exception, become inoperative. It is equally impossible
to predetermine the type and extent of a danger to public
order and security and the measures needed to meet the
situation. The experiences of the first seven years of
:he Republic had demonstrated the variety of occasions
mich might arise and none could have precisely been fore-
men. Also, any alteration of the powers of the Reichs—
mesident already mentioned in the constitution require a
mnstitutional amendment and not simply a federal law.
bnsidering the party splintering in the Reichstag, the
ecessary two-thirds majority for a constitutional amend—
ent was out of the question.

Although Schmitt had no direct contact with either

indenburg or the government at this point in his career,

he 1926 controversy over the completion law was an

55Carl Schmitt, "Das Ausfuehrungsgesetz zu Art. 48
er Reichsverfassung; (sog. Diktaturgesetz)," Koelnische
blkszeitung, No. 805 (October 30, 1925).

 

146

explicit example of the influence of Schmitt's ideas.
fifile the issue was still pending Hindenburg explained
us opposition to the legislation in a detailed letter to
:hancellor Marx.56 Because Hindenburg was incapable of

mnstructing such a detailed legal interpretation the

bcument was probably prepared by his legal advisor Otto

missner, a state secretary in the Office of the President.

In the Bruening era Meissner took a special interest in
he works of Carl Schmitt, and the advice of the state
ecretary proved instrumental in convincing Hindenburg of
he legality of the presidential system. Of importance
ere was that the legal ideas, arguments, and often the
ording, were taken directly from Carl Schmitt's work.
chmitt and Jacobi were the only major jurists to take a
idely known stand against the completion law and limi—
ations on the power of the Reichspresident. Though no
ention of Schmitt's name was made, the entire document
as based on the interpretation he presented before the

ssociation of German Jurists in 1924.

Hindenburg stated that, because of the multi—
licity of possible threatening dangers to state security,
xperience has shown the necessity of allowing the

eichspresident a free hand in executing measures

 

56Letter, Reichspresident von Hindenburg to
eichschancellor Marx, November 22, 1926, BA, R—43—I,
870.

1.: (1.1.3:: ._,_,~.

147

according to the demands of each individual case. “A
rigid formalistic definition regarding the exercise or
even the limitation of his rights, would signify a
weakening of his authority and a serious danger to state

57

security." Furthermore, the Reichspresident can in an

Ausnahmezustand suspend more than merely the enumerated
articles in Article 48, paragraph two. ". . . . He can
institute in other respects all necessary measures to
achieve the goal of the restoration of public security and
order, and to this goal he can temporarily suspend and

"58 The

alter also legal and constitutional regulations.
limitations on his power are restricted to the organiza—
tional and structural regulations of the constitution.

"He can neither suspend, limit, nor change the institution
of the Reichspresident, the Reichsgovernment, or the
institution of the Reichstag (also the Reichsrat)."59
Hindenburg also emphasized that the proposed law was of
a constitutional amending character and required a two—

thirds vote of the Reichstag.60

 

 

 

57Ibid., p. 2.
58Ibid., p. 9.
59Ibid.

60

Ibid., pp. 11—12. For the source of these argu—

 

ments see: Carl Schmitt, "Die Diktatur," "Verhandlungen,"
93. c1t., pp. 74—77, 88-90, 93—95, and Carl Schmitt "Das
Ausfuehrungsgesetz," op. cit.

 

 

 

and cont
Schnitt'
pretatic
powers,

over the
the Reic
llSt the
interpre

crisis 0

148

Hindenburg's argument was decisionist in nature
[contained precisely the essential elements of Carl
mitt's interpretation of Article 48. No other inter—
tation granted the Reichspresident such extensive
ers, while, at the same time, restricting his power
m the organizational minimum of the constitution, i.e.,
i Reichspresident, government, and Reichstag. This was
it the beginning of the government's reliance on the
erpretations of Carl Schmitt which, during the final
sis of 1930—1933, would become so important.

The Reichspresident was the key to Schmitt's con—
.tutional theory. The Weimar constitution and state was
:existing political system of the German peOple.
mitt‘s goal was not the restoration of the old Reich,

destruction of the Weimar system, or the institution
a visionary Reich in the future. As a Vernunftre-

likaner Schmitt was conservative, cautious, and

 

roached the Republic in a highly realistic manner. He
ed Weimar controversies in terms of guaranteeing
stic peace and stability, and assuring the smooth
tioning of the institutions of government. For this
on he wanted to prevent the government from being
lyzed by either extremist political groups, or by a
functional and formalistic interpretation of the con—
ution. To achieve the desired stability in a country

nated by pluralistic party interests the

 

leich:
state
hound

detail

 

149

chspresident must exert himself in the interest of the
te and the nation as a whole. He should neither be

nd to one party nor be inhibited by laws further

ailing his constitutional powers.

Only after the reintroduction of domestic unity

tranquility could Germany achieve another of Schmitt's
orities. Like all German conservatives, Schmitt was a
ionalist, and he desired that Germany resume its
Vious status as an independent and sovereign nation
hin the European state system. He refused to accept
shackles of the oppressive Versailles Diktat. From a
isionist point of View sovereignty precluded restricting
foreign or domestic affairs of a state by international
missions or a League of Nations. Always consciously
re of the realities of power politics, Schmitt detected
self—interest of certain great powers hidden behind
prOClamations of maintaining peace, the status quo,
awing war, and seeking international arbitration in
licts between sovereign states. These were merely

des concealing the true national interests of the
orious powers in their attempts to preserve the spoils
ar. Perhaps over zealous in his campaign against the
ty of Versailles and the League of Nations, Schmitt
never bellicose nor a proponent of revenge.

Concurrently with his analysis of the Weimar con—

ution Schmitt turned his attention to international

 

 

150

d politics. Around 1924 he began teaching courses
ernational affairs at the University of Bonn and
ng his polemics on the subject into the political
through public lectures and numerous publications.61
for the most part, not a theorist, but a political
ist and analyst of international relations, comment-
the foreign policy problems of Weimar Germany.
in a demilitarized and occupied Rhineland, Schmitt
bstantial reason to criticize the peace settlement
e German post-war predicament. And, like his com—
ies on domestic politics, he expressed many of his
on foreign affairs through the Catholic press and in
es before Catholic and Center Party organizations.
One of Schmitt's first public stances on foreign
cs came in a lecture before a conference of the

62 The immediate

and Center Party in April of 1925.
for Schmitt, as a Rhinelander and nationalist, was
itiation of discussions leading to the Locarno
Since 1924 members of the League had debated the
on of guarantees for the security of Europe, and in
7y of 1925 Stresemann offered to respect Germany's
r frontiers as defined by the Treaty of Versailles.
believed that the Rhineland was becoming a pawn in

61 . . .
Vorlesungsverzeichnis, Univ. of Bonn.

62 . .
Carl Schmitt, Die Rheinlande als Objekt

:ionaler Politik (Cologne, 1925).

 

 

151

ational bargaining and that even the existing status

emilitarized Rhineland infringed upon German sover—

Schmitt told his audience that a new form of
'alism had developed out of the Treaty of Versailles
interfered with state sovereignty and authority.63
imperialism embodied new methods of rule and exploi—
, such as protectorates, mandates, and intervention
Les which avoided open political annexation. England
ruled Egypt, albeit Egypt was recognized as a sover—
state. The United States exercised control in sup-
.y independent states of Latin America, like Cuba,
and Panama. The former German colonies were not
:d or taken over as colonies, but ruled as mandates
:name of the League. Terms such as independence,
etermination, and sovereignty lost their traditional
gs as a result of this new form of hidden imperial-
The controlled states no longer retained the ability
ide their own political fate in a decisive case of
ct. As Schmitt so often noted, sovereignty lies
im who decides in a state of exception. Therefore,
olled state was hardly sovereign if a foreign power

ervene in its affairs. Whether this intervention

assure security and order, to protect foreign

 

 

152

sts and private property, as designated by inter—
al treaties, the outcome was still an infringement
te sovereignty.64 If Germany had not yet lost its
ignty it was because the opponents of the Treaty of
lles had reserved for Germans the right to make

cal decisions.

Foreign intervention and control also disrupted
stterns of state authority and loyalty, so necessary
a functioning of any state. Attempts at transfering
:y from the state to the League would prove futile.
[uently, respect for state power and law were under-
without any replacement for this state authority.
rid this breakdown in state authority Germans must
.all attempts to turn the Rhineland, through the
s of modern imperialism, into an object of inter—
al politics. International commissions must not be
d to infringe upon German sovereignty.65

While the big four met at Locarno in October, 1925
er to conclude the treaty negotiations, Schmitt pub—

an attack in Hochland on the proposed provisions.66

  
   
  

eaty was intended to insure the status quo and thus

   
    
  
  

64Ibid., pp. 11—12, 14—15.

65Ibid., pp. 20, 26, 30.

 

66Carl Schmitt, "Der Status quo und der Friede,"
d, Jhg. 23, Heft 1 (October, 1925). Citations are
itionen und Begriffe im Kampf mit Weimar——Genf——
lles, 19§§:i9§§“Tfiafibfing“I§ZoTT‘ppi"35:427“““

 

 

 

153

eace of Europe; and the continued demilitarization

e Rhineland remained a cornerstone of the treaty.

'ng the entire treaty as an illusion, Schmitt refused

cept these suppositions. The legalization of the

s gug through treaties would never guarantee peace.

no, like Versailles, with its provisions for inter—

on and a demilitarized Rhineland, was merely a system

urdening Germany and restricting its power.67

ally the status qug in the Rhineland served various

ests. The English desired peace on the continent to

any disturbance of their world wide economic

tests. For France the status qug signified its polit-

and military hegemony on the continent; in essence,

lomination of an armed nation of forty million over an

ed population of sixty million, and the rule of a

ating country over an industrially expanding people.

ermans submitted to the status qug to prevent the

duction of new burdening obligations on their

mic life.68
So abnormal and unsatisfactory was the existing

tion, that, instead of insuring peace, guaranteeing

tatus quo would eventually end in new conflicts.

 

itly the status quo merely legalized an unbearable

67Ibid., p. 36.

 

681bid., pp. 38—40.

 

    
  
  
  
  
  
  
  
  
  
  
  

154

ation between war and peace, in which the politically
ng powers temporarily dominated the politically weak.69
1 Germany received its rightful place among the family
uropean nations, free from infringements on its sover—
y, this abnormal condition would continue.

By Germany's return to its rightful place in
ean politics Schmitt did not mean entry into the
e of Nations. In fact, Germany's entrance into the
e provided the subject for Schmitt's first major work
ternational relations. In Dig Kernfrage deg
erbundes he analyzed the structure of the League,
ting out several internal problems, and cautioning
ist accepting it as a political panacea.70 He argued
it was not actually a League of Nations, i.e., a
Is of peoples, but rather a league of sovereign states
rovernments. Although the humanitarian and nonpolit—
aspects of the League were promising, nothing had
.y changed in the traditional concepts of international
ics, particularly where the interests of the great
5 were concerned.71 The League itself had no sover-
y, because it lacked the power to decide independently
3 various members.

69Ibid.: pp. 41—42.

70Car1 Schmitt, Die Kernfrage des Voelkerbundes

in, 1926).

7lIbid., pp. 9—10.

 

 

155

He questioned whether the League was a League
), or an alliance (Buendnis), or an administrative

ure (Buero).72 Each case presented a problem for

 

y. A League must be based upon homogeneity and
tees, and the related matter of sovereignty.73 In
egard the decisive criteria remained who decides
guarantee must be enforced, and were the members
neous enough to allow the intervention of the League
ir affairs. If, on the other hand, the unifying
of its members was only an alliance of similar
sts aimed at restraining Germany, then the League
>thing less than an instrument of the victors to
:t and legalize their spoils.74 The real danger for
1y was not that changes in the status qug by force
>rohibited, but that the existing situation would be
.zed forever as the unalterable status qua guaranteed
a League. The separation of millions of Germans from
national state and the divided German boundaries
not even be subject to a peaceful solution.75
Article 19 of the League charter allowed for peace—
ange, decisions about justifiable changes did not

721bid., p. 15.

 

73Ibid., p. 21.

 

74Ibid., p. 37.

 

751bid., p. 38.

 

156

upon the correctness of a proposed change. The
tical interests of the stronger powers in the League
ally determined the merits of any change.76 The same
true if one considered the League as a practical
iistrative apparatus. Members would utilize this
rument when and only so long as it suited their
rests.

Without a sovereign League power political con—
:ations would always prevail over principles such as
a, legitimacy, and right. Since the League's
:eignty was in doubt, Schmitt urged a clarification of
1ctual nature and intentions of the League before
any entered. Otherwise Germany's membership could
:e the perpetuation of its own defeat and the surrender

78

:5 arms and rights. Later, in a critique of

ecke's Idee der Staatsraeson, Schmitt noted that, of

 

:e, everyone desires right, morality, ethics, and
h The problem lay with "who decides?" what consti—
h in a specific concrete case, peace or the dis—

,ng of the peace.

 

76Ibid., p. 51.

 

77Ibid., p. 79.

 

781bid., p. 82.

 

79Carl Schmitt, "Zu Friedrick Meineckes 'Idee der
sraeson," Archiv fuer SgglglfliEEEEEEEEEE 3E9
lpolitik, BET—56 (1926). p- 231-

 

 

157

With such realism guiding him in matters of foreign
flicy Schmitt relentlessly opposed the League and the
msailles Treaty. He best described his attitude in a
everly timed article on Machiavellianism, wherein he
mned the German people of the unavoidable struggles of
mer politics.80 Schmitt released this article in the
.dst of a raging controversy over the fulfillment of
mmany's treaty obligations, and most notably the dis-
mament clauses. Stresemann had reported to the German
minet on June 20, 1927, concerning the meeting of the
ague council and his discussions with Briand over dis-
ntling German eastern fortifications. When Schmitt
blished this article Stresemann was already scheduled to
esent the government's foreign policy declaration to the
ichstag on June 23. During this speech Stresemann
nounced that Germany would fulfill its disarmament
ligations in accordance with Versailles. At the same
me, however, Stresemann secretly allowed the violation

several disarmament clauses.81

The title of Schmitt's article referred to the
ne 22nd, anniversary of the National Assembly vote to

tify the Treaty of Versailles. Though mentioning

\_—-——

80Carl Schmitt, "Machiavelli-—Zum 22. Juni 1927,"
fiEEEEEE Volkszeitung, No. 448 (June 21, 1927).

81Horkenbach, Deutsche Reich, 92. cit-r PP- 240‘

1- Hans Gatzke, Stresemann and the Rearmament 9f 925E321

ew York, 1969), pp.—9"2-95. 104-

 

158

:her the treaty nor the policies of Stresemann, Schmitt
arly made his point. Machiavelli's importance lay not
us success or failure as a theoretician or statesman,
in his recognition that political leaders must make
-sions on the basis of concrete political circumstances
the proper method of handling these circumstances.
ility and immorality are aspects of private life and
tho place in politics. In political life they are
:ractions serving only the purpose of propaganda.
.tics is an indestructible part of human nature and
prality, in Schmitt's words, is simply a scarecrow in
gruesome necessity of political self-preservation.
dtt concluded that morality might have a place in
.tics and that "my views would be wicked if men were
h but men are not good." In other words, Germany's
brs should conduct foreign policy according to polit-
.necessity and self—interest without regard to the
:ates of formal treaty obligations.

Well into the Nazi period Schmitt continued lec-
ng and publishing on the weakness of the League and

' . 82
inability to assure peace in Europe. Long before

 

82See: Carl Schmitt, "Der Voelkerbund und Europa,"

land, Jhg. 25 (January, 1928), pp. 345—354, Der _
kerbund und das politische Problem der FriedenSSicherung

 

_______ ___ ___ _
-PZi9r 1930), "Die politische Lage der entmilitaeriSier

Rheinlande," Abendland Jhg. 5 (July, 1930), pp. 307—
"Sprengung der Locarno—Gemeinschaft durch Einschaltung

SOWjetes," Deutsche Juristen—Zeitung, Jhg. 41, Heft 6
6), pp. 337—341.

 

 

159

inflicts of the thirties exposed the inefficacy of
eague, he recognized that nothing had changed in the
tional functioning of international politics. It was
a system of individual, conflicting sovereign
s.

As Germany's foreign policy problems receded into
packground after 1928, Schmitt began concentrating his

its mostly on German domestic strife and politics.
sonn jurist was about to become more directly involved
plitics than he had ever anticipated. Before finally

lrawing from the captivation of his involvement, this

llectual would commit the sin of political romanticism.

 

CHAPTER V

THE INTELLECTUAL ENTERS THE CENTER
OF POLITICS, 1928-1931

By 1928 Carl Schmitt had achieved a reputation as
illiant and prolific Weimar jurist and political pub—
st. Such growing national attention elevated him
e the status of the average German professor. Hence,
eft Bonn in 1928 to accept the Hugo Preuss chair of
at the Berlin Handelshochschule.l No doubt it was
Preuss chair and the attraction of Berlin, rather than
business school itself, that held the most enticement
him. Berlin, the political and intellectual center of
any, offered a more prestigious setting, befitting a
lar of national repute and recognition. His selection
the Preuss chair depended upon the recommendation of
friend Moritz Julius Bonn, then the director of the
elshochschule. A man of liberal political viewpoints,
was a loyal supporter of the Republic until its end.
:hmitt had been considered an enemy of the Republic

Juld hardly have been selected to occupy a position

held by the father of the Weimar constitution.

1
39.

BA, R—61, Bd. 64, "Lebenslauf;" R—21, Bd. 144,

160

 

 

161

During his Bonn days Schmitt never eschewed Weimar
ical controversies. Continually making public state—
and lectures Schmitt explained his own position in
ost explicit manner. But Bonn was not Berlin. The
university town left Schmitt without direct access
e center of Weimar politics and its decision makers.
after taking up residence in Berlin did Schmitt enter
nnermost circles and cliques of Weimar political
:rship.

In Berlin he established close personal and family

rct with Johannes Popitz, a state secretary in the
rn Finance Ministry. Popitz had acquired a reputation
lingenious expert in financial affairs and his
.ons commanded a good deal of respect within the
lucracy. An irreproachable civil servant with sharp
ical instincts, he viewed his own official and polit-
behavior in terms of responsibility and impartiality.
ics for Popitz was a matter of solving specific
ems through practical alternatives and decisions.
bureaucratic pragmatism allowed him to serve a variety
litical leaders. Papen appointed him as a Reich
ssar for Prussia and as a cabinet minister in 1932;
serving as Prussian Finance Minister and State
allor under Hermann Goering, Popitz became a central
3 in the conservative resistance and in the plot to

sinate Hitler. Sharing similar ideas on the problem

 

 

162

Weimar pluralism and the necessity of a strong,
erly state, Popitz and Schmitt worked closely together
ing the waning years of the Republic. It was actually
5 association with Popitz that allowed Schmitt to move
0nd university life and into influential government
:cles.

Of historical significance was Schmitt's relation—
ip to the intimate confidant of Hindenburg, General
:t von Schleicher. Given their diverse backgrounds, the
iversity professor and the military officer showed
narkable similarities in their political outlooks and
jectives. Of course, while Schmitt was at his best in
a world of ideas and theory, Schleicher's forte was
litical intrigue. Schleicher excelled at behind the
anes maneuverings that included the appointment and
sposition of Chancellors and their cabinets. But, no
:ter how damaging these machinations might have been to
a reputation, he was motivated by a sincere concern for
afuture of Germany and the Reichswehr, rather than by
e personal ambition. His long-range goal was the
ablishment of a strong, stable Germany, in which,

urally, the interests of the Reichswehr would be

 

2Hildemarie Dieckmann, Johannes Popitz: Entwicklung

Wirksamkeit in der Zeit der Weimarer Republik (Berlin-

lem, 1960), p. 137. Lutz-Arwed Bentin, Johannes Popitz
Carl Schmitt: Zur wirtschaftlichen Theorie des totalen

—__——___ —_—_________—_____._.__———.~_

 

 

 

163

ecured. Like Schmitt, he had abandoned any hopes for a
estoration of the old order and came to terms with the
epublic out of practical considerations.3 The professor
nd the General each saw political stability as the first
riority, even if it was to be achieved within a republican
ramework. The most striking parallel between the attitude
f Schmitt and that of Schleicher was their common oppo—
ition to constitutional revision during a time of intense
risis. In his early overtures to Bruening in 1929
chleicher did, contrary to Schmitt's interpretation, pro—
wse amending the constitution on the basis of Article 48.
his occurred, however, before the upsurge of the NSDAP

nd before the real gravity of the situation was clear.
hereafter, Schleicher discarded this plan and, with
chmitt, looked to a government that would stand above
arties and deal with the extreme right and left, without
mending or abrogating the constitution. They both saw
uch a solution in a presidential government. And it was
n the issue of the presidential system that the ideas of
chmitt and the politics of Schleicher converged, closing
he gap between the realm of theory and the world of

alitics.

 

\——_——.—_——_.

Be, 1959), pp. 167—172. Andreas Dorpalen, Hindenburg and
1g Weimar Republic (Princeton, 1964), pp. 123—124, 170—
71.

 

164

Schmitt made Schleicher's acquaintance through the
eral's aides Colonel Erich Marcks and Colonel Eugen Ott,
officers in a position to influence Schleicher's deci-
ns. As director of the press office of the War Ministry,
after August 1932 as Reich press chief, Marcks partic-
rly exercised a considerable degree of personal influence
his superior. In his capacity as Schleicher's public
ations officer Marcks was also privy to the inner work—
is and plans of the cabinet. The activities of Colonel
h were likewise of a highly political nature. In addi-

>n to heading the armed forces section of the War

listry, Ott acted as Schleicher's Reichstag observer

las the liaison in the General's attempted negotiations

:h Hitler. Ott was frequently called upon to advise

idenburg and the cabinet on political questions that

olved the army. Because Ott and Marcks had been so

sely connected with the intrigues of Schleicher, the

is relieved both officers of their Berlin posts in

4. The Nazis sent Ott to Tokyo as military attache
transferred Marcks back to a regular army unit.

After 1929 Schmitt became the adviser to the
leicher clique in constitutional affairs; he maintained
closest contact with Marcks and Ott. Through these
nections Schmitt's ideas were filtered into the decision
ing circles and in this manner he was kept informed of

intentions of the government. It is doubtful that

 

165

hmitt would ever have played the important role he did
the end of the Weimar Republic without the personal and
litical contacts he acquired in Berlin.

Perhaps the working of fate brought Carl Schmitt,
a theorist of the Ausnahmezustand, to Berlin just as the
imar Republic was once again to experience a period of
stained crisis. Neither Schmitt's writings on the state
exception and the dictatorial powers of the president

ier Article 48, nor his advice to political leaders were

sponsible for the crisis which led to the end of the
public. Werner Conze was correct in stating that oppos—
g theoretical positions, such as the Decisionism of Carl
nmitt and the necessity of a democratic party state
vocated by Richard Thoma, do not provide the key to
erstanding the collapse of Weimar. Instead the problem
t be investigated in light of the concrete situation
sting at the end of the Weimar Republic, in order to
ermine why a multiparty parliamentary system failed to
ction in Germany in 1929-1930.4

The fundamental weakness of the Weimar party state
ch led to the paralysis of the parliamentary system

er 1929 had existed since the inception of the Republic.

ultiplicity of antagonistic political groups and parties

 

4

Werner Conze, "Die Krise des Parteienstaates in
tschland 1929/30," Historische Zeitschrift, Bd. 178,
t l (1954). p. 50. ' ‘ "’ _________

166

idered the formation of stable and enduring governing
iorities and coalitions. Parties were based not upon
litical platforms, but upon incompatible ideologies and
oresented distinct social and economic classes. These
:eressenparteien proved unable to make the compromises
:essary for cooperation with their opponents. Thus, the
Llure of the republican forces and the parties within

a Reichstag to integrate their programs and policies

:h one another actually decided the fate of Weimar.

The last attempt at a workable compromise between
ase antagonistic parties came in the form of the Great
alition of 1928. But the new cabinet, headed by the
:ial Democrat Hermann Mueller, did not receive its
cliamentary majority from the republican parties alone

was forced to rely upon the support of the German

ple's Party. Still, the divisions between the German

ted to allow for lasting cooperation. Beginning in
9 the economic crisis strained the tenuous basis of the
lition and led to its eventual disintegration. At a
e when cooperation was most necessary, the disinte-
tiOn of the coalition left Weimar Germany without a
ble governing majority, as class and party interest
dominated over the common and national interest.

The first years Carl Schmitt spent in Berlin were

i

l

Fple's Party and the Social Democrats were too deeply

s plagued by the paralysis of the government, economic

167

Epression, and movements for reform and revolution from
he right and left, with three unsuccessful attempts at
wercoming the parliamentary stalemate through a presi-
mntial government. In these crisis years Schmitt enjoyed
us greatest public acclaim through his writings, and his
reatest political influence on decision makers. He
chieved this influence and popularity by attempting to
rovide theoretical and practical solutions to the polit-
cal problems then besieging Germany. Aside from counsel-
ing the Schleicher clique he published numerous books and
rticles on topics of pressing political importance and
fctured on these problems to several academic and business
rganizations.

From the earliest stages of the crisis Schmitt
alt the Weimar constitution and state faced an internal
anger. He identified two major elements of such danger
s the "inner political neutrality of the state" and
:cessive pluralism. These ideas were based upon what he
nsidered an outdated liberal political philosophy, and
re antithetical to the type of strong state Schmitt pre-
rred. They also directly related to the two problems
in facing Germany, parliamentary paralysis and economic
ression.

He attacked the doctrine of pluralism in a lecture

a conference of the Kant Gesellschaft in Halle on

 

168

2, 1929.5 The advocates of pluralism, Schmitt

ed, removed the state from its status as the highest
ical and social unit, relegating it to a position

st other social groups and associations, such as
ious and economic organizations. A "plurality of
hies" resulted in making the state dependent upon a
ariety of these diverse groups and their special

6 Schmitt did not deny that a

sts and compromises.
l plurality of interests and associations existed.
ued only that it must exist within the organized

'cal unit of the state, and the state must stand above
individual interests and represent the whole nation.
:ate decides a case of unavoidable conflict between

:ent loyalties and conflicting groups. An individual

Find no greater field of freedom than that guaranteed

trong state.

e political unit (i.e., the state) is the highest
it, not because it dictates omnipotently or levels
1 other units, but because it decides and therefore
thin itself can hinder all other adverse associ—
ions . . . . Where it exists, the social conflicts
individuals and social groups can be decided, so
at an order, i.e., a normal situation, remains.

‘alistic party states the unity of the state con—

only so long as two or several parties come to

5Carl Schmitt, "Staatsethik und pluralistischer
Positionen und Begriffe, op. cit., PP. 133—145.

6Ibid., pp. 134—135.

 

 

7Ibid., p. 141.

 

 

169

rms and recognize common premises. Then the state is
sed upon a constitution, commonly recognized and
spected by all parties. Under such conditions the
thority of the constitution can serve as the foundation
r a very effective political unit.

Unfortunately the condition of the Weimar Republic
longer reflected this pattern. Not only did several
rties refuse to recognize the authority of the consti—

tion and the Republic, but those that did were so
vided they could find no common premise on which to
operate. From Schmitt's point of View the real casualty
s the state and its constitution. To counteract this
end he began addressing himself to the question of who,
ting on behalf of the whole nation, could stand above
ese diverse interests and serve as the defender of the
ate and constitution. Given the conditions of Weimar
believed that only a neutral force with extensive power,
resenting all the German people, could play the role of
defender of the constitution. Always having stressed
need for a strong president, Schmitt now turned to the
'chspresident as the only viable institution to fulfill

's purpose. Schmitt first introduced this solution to

 

 

 

170

the woes of Weimar in a 1929 article entitled "Der Hueter
der Verfassung."

In a related article Schmitt had denied that the
German supreme court, the Reichsgericht, could serve as
the protector of the constitution as it had proclaimed in

a decision of October 15, 1927.10

On the contrary, the
protector of the constitution must be of a highly polit-
ical nature and endowed with extensive political power.
The supreme court was incapable of both defending the con~
stitution as a whole and of wielding sufficient political
power. Its decisions were limited to violations of indi—
vidual constitutional laws and, even in this respect, its
decisions were always too late. So long as it remained
purely judicial rather than political it must decide after
a violation has occurred.12 Also, he recognized that the
court would be powerless against a constitutional amending

13

law under Article 76. And he feared that an extremist

  
  

arty might use this article legally to abuse or even

  
    
   
    
  
 
   
    

9Carl Schmitt, "Der Hueter der Verfassung,"
rchiv des oeffentlichen Rechts, Neue Folge, XVI (March,

929), pp. 161—237.

loCarl Schmitt, "Das Reichsgericht als Hueter der

erfassung," (1929), Verfassungsrechtliche Aufsaetze,
P- cit., p. 70.

llIbid., pp. 69-70.

12Carl Schmitt, Der Hueter der Verfassung
Tuebingen, 1931), pp. 32—33.

13Ibid., p. 16.

 

 

171

stroy the existing constitution. Thus, Schmitt approached
e defense of the constitution as a realistic political
oblem and not as a judicial one. The judiciary so long
it stayed above politics was quite limited in its de-
nse of the constitution. Laws may be passed in defense
the constitution and judicial decisions rendered, but
thout political authority the judiciary would still
main powerless, for "one law cannot be the defender of

14 A true defender of the constitution

.other law."

quires the political authority to distinguish the

iend from the enemy and the real power to enforce that

cision. If the judiciary received such political

thority it would result in the politicalization of

stice.15
Consequently, Schmitt doubted that the judiciary

uld overcome a crisis which was so political in nature.

litically, contemporary Germany was an unstable,

   
  
  
   
  

ralistic coalition-party—state rather than a parlia—
tary party-state.l6 Political parties under a parlia-
tary party—state are free associations, without firmly
trolled or tightly disciplined organizations. Such

ties act as a means of forming government policy. A

 
   
  

14Ibid., p. 40.

 

15Carl Schmitt, "Reichsgericht," op. cit., p. 98.

16

Carl Schmitt, Der Hueter, op. cit., pp. 88-89.

  

 

172

rliament becomes the arena in which numerous socio—
Jnomic, cultural, and confessional opponents, along with
tying interests and opinions, are transformed into a

ified political will.17

Through the free negotiations
representatives different party interests are trans-
rmed into an over—party will. To its misfortune Weimar
ver approximated this type of party—state. Weimar
rties were thoroughly organized structures with influ—
tial bureaucracies, standing armies of functionaries,

i entire systems of help and support organizations, to
ich an ideological, social, and economic clientele was

iesively bound.l8

A proportional representation system
elections and the list system further aggravated the
ablem. Voters no longer voted for an individual repre-
itative. Instead they confronted a party list contain—
; a series of names selected in secret, uncontrolled

:ty committees. This resulted in a statistical grouping
1 distribution of the voting masses according to a
lority of party lists. Because parties were organized
m firmly bound political and social power blocks
actions constituted an appeal to the standing party

w and, in effect, a plebiscite.19

17Ibid.

 

l8Ibid., p. 83.

 

19Ibid., pp. 86-87. The problem of political par—
8 and the list system was a generally recognized one,

-_2 -'r*- " _'-" u—a’ugn—r—‘Ax-ét‘x- ifi~_.—:‘n;~.— >7 -_--. .. 1,.

173

No longer the arena of compromise and unity par-
liament had become the arena for the division of the nation
into a plurality of social groups. This pluralism led
either to the inability to form majorities, or to a con—
dition in which the present majority used all legal pos-
sibilities of its term in office to secure its possession
of power, and to limit the opportunity of its opponents to

20

do the same. The plurality of loyalties and the uncom-

promising organizations endangered the unity of the state
and destroyed respect for the constitution, since each
group had its own concept of the constitution. Maintaining
the legal reins of power every incumbent majority or coali—
tion declared its own actions as legal, designating any
threats to, and criticism of, its own position as illegal

and contrary to the spirit of the constitution.21 Whereas

particularly in the latter stages of the Republic. Even
two jurists so diametrically opposed to Carl Schmitt as
Fritz Hartung and Hans Kelsen saw these as two of the

most crucial problems paralyzing the parliamentary system.
See: Fritz Hartung, Jurist unter vier Reichen (Cologne,
1971), pp. 90-91. Hans Kelsen, "Die Krise des parlamentar—
ischen Systems," February 4, 1931, speech before the
Februar—Klub in Cologne. The Februar—Klub was a non—
partisan political organization dedicated to constitu—
tional reform and a strengthening of the power of the
Reichsgovernment over the Reichstag. Nachlass Friedrich

 

 

 

 

spaeter Vorsitzender des Februar—Klubs, BA, Kleinen
Erwerbungen, No. 484, Bd. 2, (1930-1931).

20Carl Schmitt, Der Hueter, op. cit., p. 89.

ZlIbid., p. 90.

 

174

a the nineteenth century the danger to the constitution
ame from the executive, with the legislative branch
erving as the defender of the constitution, the current

22 For the

anger resided in the legislative branch.
luralistic social and economic power blocks in parlia—
ent had led to the paralysis of the government and pres-
ntly threatened the political unity of the nation.

A strong political power standing above these
iffering positions was not the alternative. Rather than
cting as the defender of the constitution this "Higher
hird" would actually be the sovereign ruler of the
tate.23 The solution lay, therefore, in a "Neutral
hird," a pouvoir neutre standing, not above, but next
3 other constitutional powers. This neutral third must
amain neutral and independent of party interests and

apresent the entire nation. The democratic sections of

ie Weimar constitution provided for such a neutral third

1 the form of the Reichspresident. Directly elected by

re German people, his term lasted for seven years,

aking him independent of changing parliamentary majorities
rd coalitions. He maintained special political powers
rainst the parliament through his ability to dissolve

m Reichstag, call new elections, and present national

 

221bid., pp. 24-25.

23Ibid., p. 132.

 

 

175

eferendums. All of these provisions granted him the

ower to appeal directly to the people as a whole without
eliance on the parties. The Reichspresident also retained
xtensive political authority to deal with a crisis under
rticle 48. In this manner the Reichspresident had the
ower to represent the political will of the German people
nd, thereby, acted as the defender of the constitution and

24

he unity of Germany. Ebert and Hindenburg, each in

is own way, had played the role of the neutral third and
he defender of the constitution quite successfully.25

Soon Schmitt‘s thesis became a significant legal
rgument and catchword for the presidential system.
incerely believing in the necessity of a neutral force
chmitt by no means used his legal arguments to cover
ttempts to establish Hindenburg as the figurehead of a
avernment ruled by rightist parties. As throughout most
E his life Schmitt now concerned himself with maintaining
:der and stability in a time of crisis. He did not
itend the presidential system as a method of destroying
re constitution and the Republic.

The role of the intellectual in politics Schmitt

.80 compared to the neutrality of the Reichspresident.

rintellectual was neither to be the servant of one

24Ibid., pp. 158-159.

25ibid., p. 139.

 

 

176

tical party or ideology, nor to remain aloof from
tics. Neutrality meant not passivity and inactivity

independence from party control.26

The intelligentsia
be able to maintain its respect as a free, objective,
unorganized intellectual force. Rather than promoting
osition and goals of a particular party the intel—
tsia should provide the leading spirit for the nation.
by preserving this independence could the intelli—

ia stimulate public opinion and national feeling,
lements Schmitt considered essential to the continued
ence of the Weimar Republic. On this point Schmitt

d the increasing difficulty for political thinkers to

ad their intellectual independence. He even doubted

a political intelligentsia independent of organized

Les still existed in Weimar Germany. Warning that an

>endent intelligentsia and a constitutional structure

end in hand, he stated that, "the fate of the German

.ligentsia and education will also be the fate of the

r constitution."27

Schmitt followed his own advice on the independence
e intellectual in politics. Though previously favor—

he position of the Center Party he still managed to

participation in party politics, and in this way he

 

26Carl Schmitt, "Hugo Preuss in der Deutschen

slehre," Die Neue Rundschau, XXXXI, Ed. I (1930), p.

 

 

27Ibid., p. 303.

 

 

 

177

ined independent from all parties until the Nazi one-
y state stifled all opposing factions. So as not to
ect his political obligation and to avoid playing the

of the aloof, passive intellectual, he offered his
ices to the German state. Subsequently he assisted
president, army, and bureaucracy, the forces he per—
lly perceived as standing above party politics.
ually his activity went far beyond maintaining intel-
ual objectivity and stimulating public opinion,
ough certainly it did fall within the scope of enhanc»
national feeling.

Since Schmitt's arrival in Berlin he was in c0n—

with Schleicher circles. Around 1929 when Schleicher
n having more and more influence with the government
Hindenburg, the ideas of Schmitt were filtered into the
ers of policy making. Because Schmitt never person—
met Hindenburg the intermediaries of the Schleicher
:ie kept Schmitt informed of the inner workings and
itions of the government, and at the same time they
>duced Schmitt's ideas to Hindenburg.28 Most important
' these ideas was the Reichspresident as the defender
e constitution and the execution of Article 48 to

the problems then besieging the Republic.

28Schmitt Interview, July 13, 1973.

 

 

178

"Der Hueter der Verfassung" first appeared as an
cle in March 1929. Aside from circulating this arti-
among his close friends in the Schleicher clique
itt sent copies directly to certain government offices,
e his work was greeted with enthusiasm. Otto Meissner,

e secretary in the Office of the Reichspresident,

9:

I have taken special interest and notice of your
arguments and the characterization of the Reichs—
president as the neutral and mediating force. . . .

I am also convinced that every successor to the first
two Reichspresidents will View this activity as one
of his most important tasks and that gradually a
practice will arise, which realizes your tenet of

the neutral and mediating force.29

equal enthusiasm Erich Zweigert, state secretary in

Reich ministry of the interior, hailed Schmitt's work
clear—sighted and courageous," stating, ". . . it

d give me excellent support in the impending discus—

s with the lawyers from the judiciary over the future

30
1e supreme court . . . ."

The government was starting to take note of the
ible value of Schmitt's ideas. Henceforth, the serv—
and ideas of Carl Schmitt would be utilized by the
in government for the duration of the Republic.

.tt's most influential role in this regard had to do

29State secretary Otto Meissner to Carl Schmitt,
8, 1929, Carl Schmitt-Personal Papers.

30State secretary Erich Zweigert to Carl Schmitt,
4, 1929, Carl Schmitt-Personal Papers.

 

 

 

179

th the Schleicher plan for a presidential system. The
eas of Schmitt and the plans of Schleicher would go hand
hand as both attempted to discover a solution to the
litical and economic crisis then facing Germany. Schmitt
ovided a convenient legal and theoretical foundation for
e plans of Schleicher. But Schmitt's writings after
29 should not, for this reason, be construed as mere
opaganda or polemics written only to justify the actions
the government, or more precisely the presidential sys—
m. These were scholarly works, of a highly political
ture, directed at the existing situation of late Weimar.
om his early years Schmitt had always asserted that
litical theories and analyses should not be based upon
stract constructions but upon a concrete situation. In
ct, the components of Schmitt's presidential system,
st notably the idea of the Reichspresident as the

ivoir neutre, were already clearly formulated by

 

imitt in 1927, before he moved to Berlin and involved
melf with the Schleicher circle.3l
During the winter of 1929 Schleicher began pro—
ing his plan for composing a cabinet which, standing
rve narrow party interests and representing the national

erest, would have the confidence of the Reichspresident

the army, and in this manner he hoped to overcome the

 

31Carl Schmitt, Verfassungslehre, op. cit.,

350—353.

 

 

180

:isis. If the Reichstag refused to go along the
ichspresident would dissolve the Reichstag and rule
der Article 48. Schleicher had already advocated a
.milar alternative in 1927. For this reason the origin
fthe presidential system is often solely attributed to
:hleicher.32 Yet the legal components of Schleicher's
esidential system were quite similar to the presi-
ntial system developed since 1927 by Carl Schmitt. Most
kely Schleicher decided to use Schmitt's arguments as
e legal foundation for his own political intentions.
is interesting to note that Schleicher first renewed
s efforts for a presidential solution after coming into
ntact with Schmitt and after the release of "Der Hueter
r Verfassung." Schleicher's original plan, however,
:luded changing parts of the constitution in order to
establish a workable political order in Germany, a
sition not advocated by Schmitt in his writings.
Schleicher's first problem was to select a suitable
ncellor for his plans and for this purpose he began
rting the conservative Catholic Heinrich Bruening of

Center Party. After Easter of 1929 Schleicher first

32

3—1945 (New York, 1964), pp. 436—437. Dorpalen,
ienburg and the Weimar Republic, pp. 127, 170. Walter

'~__—_ _—

 

 

 

181

)posed his plan to Bruening directly. According to
ileicher, the Reichspresident wanted to reestablish a
:kable political order before his death. Since the
ichspresident had sworn an oath to uphold the consti-
:ion he refused to support any unconstitutional schemes.
arefore, Schleicher proposed dissolving the Reichstag and
.ing with Article 48 until affairs were brought in
ler. Bruening stated that governing areas of economic
[social life in this manner might be possible, but that
:icle 48 could not be used to change the constitution.
deicher countered this by informing Bruening that he
lassembled in the War Ministry Gutachten from crown
ists which proved that Article 48 could be used for
nding the constitution. Several days later Bruening
eived these Gutachten through state secretaries Joel
Zweigert. These Gutachten, indeed, Showed the pos—
le use of Article 48 for overcoming the crisis, but
nothing to do with the reform and constitutional
erations that Schleicher had read into them.33
No doubt among these Gutachten Carl Schmitt's

eter der Verfassung" held a prime position. The

leicher circles, as well as state secretary Zweigert,

(I)

already in possession of Schmitt's work. Schmitt

self claimed that one of the Gutachten in question

33Heinrich Bruening, Memoiren, 1918—1934
ittgart, 1970), pp. 145—147.

 

182

elonged to him and that he was also working closely with

weigert.34

Moreover, these Gutachten contained a cate-
orical rejection of the idea of constitutional reform
nder Article 48. Similarly Schmitt repeatedly renounced
he possibility of constitutional change through Article 48.
nd in 1929 Schmitt again commenced speaking out against
onstitutional reform during this period of crisis.
Schleicher's possible misuse of Schmitt's ideas
Dints out the dangers facing the intellectual in politics.
he creations of an intellectual are never taken over pre-
isely by politicians, rather they are used for a polit—
:al purpose, often in a distorted form as justifications
3r political acts. Very often these ideas are intention—
Lly misinterpreted or altered to fit a particular set of
)litical circumstances or ends. Once the intellectual
Laces his ideas and talents at the service of politicians
rch ideaS'become the tools of these politicians, to be
sed or disregarded, depending upon the changing needs of
reir own position. This is the price the intellectual
rst pay when he enters the world of politics, abandoning
e purity of the ivory tower. Carl Schmitt was more than
.lling to take such chances, for he enjoyed his new posi—

.on as an adviser to the decision makers, and all the

estige, excitement, and enhanced celebrity which

34Schmitt interview, July 13, 1973.

 

183

accompanied it. Schmitt sincerely thought that his ideas
were influencing events and, in many respects, perhaps they
were quite influential. But his ideas were by no means

the governing force behind the activities of the govern—
ment or the politicians he served.

Throughout 1929 Schleicher continued to promote
the presidential system as a solution to Germany's ills.
Meanwhile the political and economic situation worsened
intil the paralysis of a pluralistic party-state Schmitt
iad warned against became a reality. Unable to agree on
increases in the unemployment insurance and budgetary
natters the parties of the Great Coalition reached a
stalemate of noncooperation. On March 27, 1930 the
meller cabinet resigned. The following day saw the first
stage of success of Schleicher's plan when Hindenburg
rppointed Heinrich Bruening chancellor.

Bruening's eventual goal was to free Germany of
he oppressive burden of reparations. To accomplish this
e believed that he must first put Germany's finances in
mder. Bruening intended to reserve the Great Coalition
nd work with the Reichstag while relying, especially in
inancial matters, on the increased power of the govern—
ent. When the Reichstag on July 16, rejected his finan—
ial programs Bruening abandoned his reliance on the
eichstag and commenced issuing his programs as emergency

ecrees authorized under Article 48. The Reichstag then

 

 

184

nvoked its constitutional right under that same provision
nd voted to repeal these decrees. Instead of resigning
ruening dissolved the Reichstag and called for new elec—
ions for September 14. This was the actual beginning

E the presidential system and represented a further
iccess for Schleicher's plan.

Immediately after Bruening entered office Schmitt
ad begun publicly supporting the sweeping and drastic
:onomic measures the new chancellor was about to intro—
ace. Speaking on April 8, 1930 before the fiftieth Con—
srence of the German Chamber of Industry and Commerce
:hmitt urged strong action on the part of the state to
ercome the growing economic crisis.35 Before this
flience, which included numerous members of the govern-
mt and the Reichstag, Schmitt attacked the liberal
inciples of the inner political neutrality and absolute
m—intervention of the state in the economy. He empha-
zed that these outdated nineteenth century concepts pre—
nted a real danger considering the current condition of
rmany.36 The state of the twentieth century was an

onomic state and to a great extent the domestic and

reign policy of a country was political economics. The

 

35Carl Schmitt, "Neutralitaet gegenueber der
rtschaft?" Germania, No. 166 (April 9, 1930).

36Carl Schmitt, "Das Problem der innerpolitischen
utralitaet des Staates," (1930), Verfassungsrechtliche
fsaetze, op. cit., p. 41.

 

185

alyzing effects of the unstable coalition-party—state
sting in Germany hindered the formation of political
isions which were not based upon the narrow economic
erests of the parties forming a coalition at any one
ticular time. Resulting decisions were rarely impar-
l and often did not take in account the interest of
nation as a whole.37
The depoliticalization of the state‘s economic
icies offered no solution. Politics was an unavoidable
sequence of anything of public interest or of concern
the state. Schmitt reminded his audience that "the
ght from politics is the flight from the state."38
ther did the solution lie with the total control of the

nomy by the state, as exemplified by the Soviet system

Russia and the Fascist stato corporativo in Italy.

 

a systems were directed by a rigidly centralized one—
:y state which Schmitt rejected.39 Germany required
:her total state control of the entire economy nor a
:ening of the state power over the economy. What
any needed was decisive political decisions on the

.of the state concerning the economy. In this manner

37Ibid-, pp. 54—55.

38Ibid., pp. 56-57.

39ibid., p. 44.

 

 

186

:he state could best represent the interests of the entire

. 4
nation. 0

Schmitt believed that this did not require changes
in or abandonment of the existing constitution. He cau—
:ioned against such plans noting that “all constitutional

41

possibilities by no means have been exhausted." The

mal problem facing the German people was not constitu—
jonal reform but unity. They could save themselves as a
political unit or exist as a reparations state controlled
w foreign powers.42 In taking this stance Schmitt was,
i course, supporting Bruening's plan to use the consti-
mtional emergency powers to put Germany's economy in
mder and to relieve the country of its burdens as a
eparations state. Around this same time Schmitt informed
is acquaintance Ernst Niekisch of his desire to play a
ore active political role and to advise Bruening on con—
titutional matters. He even attempted fruitlessly to
nlist Niekisch's support for Bruening.43 While Schmitt
ublicly displayed this support the Bruening government

tom its inception was beginning to utilize the constitu-

ional interpretations of Carl Schmitt.

 

 

4OIbid., p. 57.
4lIbid., p. 58.
421bid.

 

3Ernst Niekisch, Gewagtes Lebens: Begegnungen und
flgpfligpo (Cologne, 1958), p. 242.

 

 

187

Several immediate problems faced the Bruening
government's application of Article 48 to solve the eco-
nomic crisis. The first problem involved a possible
rejection by the Reichstag of the government emergency
decrees. Since a rejection of these decrees by the
Reichstag would interfere with Bruening's plans he hoped
to dissolve the Reichstag and, in the interim before the
new elections, reinstitute these decrees. This would
avoid at least temporarily any interference on the part of
the Reichstag with Bruening's manipulation of Article 48.
But this procedure created a second problem for Bruening.
There was some doubt as to whether the Bruening government
after having already received a vote of no confidence from
the Reichstag could, in the interim between elections,
iremain in power and continue issuing emergency decrees
Jpreviously rejected by the Reichstag. Attempting to ans—
iwer these questions in Bruening's favor, Herbert Dorn,
ministerial director of the Reich finance ministry, pro—
vided the government with a Gutachten on April 3, concern-
ing the interrelationship of Article 48 and the dissolving

44

Of the Reichstag. According to Dorn the opposition of

the Reichstag could only constitutionally be counteracted

 

44Gutachten Dorn EB Punkt l der heutigen Minister—
besprechung. (3.4.1930) Zur Frage der Anwendung des

Artikels 48 der Reichsverfassung und der Aufloesung des
Reichstags. BA, R-43—I, Bd. 1870, "Art. 48 der Reichs—
Verfassung (1924-1930)," pp. 107-110.

 

188

if the Reichstag was dissolved. In such an event Dorn
stated,

\

Walter Jellinek and Karl Schmitt are of the opinion
that a government which receives a vote of no con—
fidence can countersign the dissolving order of the
Reichspresident and remain in office as the managing
government until after new elections . . . and that
some sort of legally constituted limitation on its
functions for the period after the vote of no con-
fidence is not provided for.45
That interpretation would leave the Bruening
government free to implement its programs under Article 48
during the interim. And not surprisingly the position
taken by the Bruening government when its emergency decrees
were suspended by the Reichstag on July 18, 1930 exactly
paralleled the interpretation of Jellinek and Schmitt.
When a Social Democratic motion for suspending the emer—
‘gency decrees passed the Reichstag with 236 votes to 221,
‘Bruening immediately dissolved the Reichstag. Not only
ldid the Bruening government refuse to resign, but on
l
July 26, it instituted five new emergency decrees on
economic and financial matters.46 No longer in session
the Reichstag had no opportunity to vote to suspend these
new decrees. The government, however, realized that it

probably would face the suspension of these measures after

the new elections in the fall. It began immediately

 

45Ibid-, pp. 108—109.

46Horkenbach, Deutsche Reich, op. cit., pp. 315—316.

 

189

preparing its legal and political case for the use of
Article 48 to overcome the economic crisis.

Two days after the issuance of these new decrees
Carl Schmitt provided the Bruening government with a
Gutachten justifying the constitutional power of the
Reichspresident to issue such financial decrees under

47 With this action Schmitt made his services

Article 48.
available to the Bruening government, setting a precedent
for his future cooperation with the policies of the suc-
ceeding two Reichschancellors. In making his talents
available to the government Schmitt did not opportunis—
tically change his own opinions. He remained generally
consistent with prior positions he had held on the actual
power of the Reichspresident under Article 48. But now
Schmitt was willing to accept a greater exercise of
presidential power concerning emergency decrees.

Schmitt observed that constitutional developments
over the previous ten years had produced several changes
regarding the Ausnahmezustand and emergency decrees, which
now must be considered as integral parts of the existing

constitutional order. These changes developed out of the

practices of the government, decisions of the supreme

 

47Carl Schmitt, Verfassungsrechtliches Gutachten

Grund des Art. gofAbs. 2 RE. finanzgesetzvertretende
Verordnungen op erlassen, July 28, 1930, BA, R-43—I,
Bd. 1870.

 

190

court, and legal literature. Two of the most significant

developments were the authority of the Reichspresident to

issue decrees as substitutes for laws ("gesetzvertretende

Verordnungen"), and the further expansion of his powers to
deal with special financial and economic states of excep—

tion.48

The authority of the Reichspresident under

Article 48, Schmitt believed, also applied to the current

situation because an extensive threat to public order and

security could arise from economic and financial crises.49

A Reichspresident could exercise his exceptional powers

in financial matters so long as he observed the constitu—

50 To support this

tional limitations on these powers.
contention Schmitt cited several examples from the eco—
nomic crises of 1923—1924, as precedents in the use of
Article 48 to overcome such problems.

As a consequence of the practice of the last ten
Years emergency decrees of the Reichspresident now went
beyond the status of merely being measures (Massnahmen).

ThOUgh still not formal laws as would be passed by the

legislature, presidential decrees did carry the authority

481bid., pp. 1—3.

 

491bid., p. 3.

50

 

Ibid., pp. 6-7.

 

51Ibid., p. 4.

 

191

of law. Accordingly, the present economic and financial
programs did not require formal laws and could be ful—
filled by decree—substituting-laws (gesetzvertretende

52 Schmitt

Verordnungen), issued by the Reichspresident.
stated that he personally still adhered to the distinction
between measures (Massnahmen) and laws (Gesetze), but that
developments in constitutional practice had blurred this
distinction.53
By conceding this point Schmitt was not accepting
the Reichspresident as an unlimited legislative authority
usurping the constitutional power delegated to the
Reichstag. "It is self—evident," Schmitt explained, "that
a limitless, uncontrolled competency of the Reichpresident
is not being advocated here . . .," and, "that the actual
limits of the exceptional powers of the Reichspresident
and the actual security against the misuse of his power

lies in the control authority oi the Reichstag . . . ."54

A majority vote in the Reichstag could immediately suspend
any emergency decree. Schmitt went on to say that in the
event these decrees were issued while the Reichstag was not
assembled the government was constitutionally obligated to

present these decrees to the newly assembled or elected

521bid., pp. 6—13.

 

53Ibid., p. 11.

 

54Ibid., p. 22.

 

192

Reichstag for ratification.55 If the re-assembled or newly

elected Reichstag was incapable of gathering a majority the
decrees would stand as issued. For a Reichstag incapable
of conducting policy because it lacked a workable majority
should not be allowed to incapacitate a viable government.56
The government and the central bureaucracy received
this Gutachten with open arms and grasped on to its argu—
ments as one of the strongest legal defenses of their pro-
grams. Bruening received this Gutachten from state secre—
tary Dorn on July 30. In a letter to the chancellor Dorn
stated,
the conclusion to which this work comes is much more
satisfactory since Prof. Schmitt is one of the few
constitutionalists who, up to now, basically refused
to recognize a decreeing power of the Reichspresident
on the basis of Article 48. In case hesitations from
other sides should be forthcoming, this Gutachten
would, for that reason, be an essential foundation for
our position.57
This modification in Schmitt's position obviously held
more value for the government than for Schmitt himself.
What Schmitt desired was not theoretical consistency
forever but accurately to analyze the concrete situation

and propose necessary solutions. Nonetheless, the objec—

tive of both Schmitt and the government regarding the

551bid., p. 23.

 

56Ibid., pp. 23—24.

 

57State secretary Dorn to Reichschancellor,
July 30, 1930, BA, R—43—I, Bd. 1870, p. 285.

193

decreeing power of the Reichspresident coincided. They
were both intent upon allowing the Reichspresident exten-
sive power so that, through the chancellor, his cabinet
and the bureaucracy, the stalemate in the Reichstag could
be overcome and the necessary programs instituted to meet
the crisis. During the summer and fall of 1930 Schmitt's
Gutachten attracted a good deal of attention within the
government and bureaucracy. It became the subject of
phone conversations and correspondence between various
ministries including the finance ministry, the Chancellery
and the ministry of the interior.58
On October 7, another constitutionalist, Professor
Richard Thoma, presented the government with a Gutachten
dealing precisely with the financial and economic emer-
gency decrees issued by the Reichspresident on July 26.59
Thoma accepted the constitutionality of the decrees in

general, while interpreting several individual parts as

unconstitutional. Concurring with Schmitt, he also held

 

58Ministerial director von Hagenow to state secre—
tary Zweigert, August 2, 1930. Zweigert to von Hagenow,
August 2, 1930. Zweigert to State secretary Puender,
October 10, 1930. BA, R-43—I, Bd. 1870, PP. 311-312, 322.

59Richard Thoma, Rechtsgutachten ueber goo .
Verfassungsmaessigkeit der Verordnung goo Reichspraesidenten
Egg behebung financiellEET wirtschaftlicher poo sozialer
NOtstaende vom 26. Juli 1930, Reichsgesetzblatt Teil I.S.
fill. Auf ErEUEhEH des Reichsministerium goo Innern,
OctobEf—7, 1930, BAT‘R—43—I, 1870. See also: Richard
Thoma, "Die Notstandsverordnung des Reichspraesidenten
vom 26 Juli 1930," Zeitschrift fuer oeffentliches Recht,

Bd. XI (1931), pp. 12—33.

 

 

 

 

194

that these decrees must be immediately suspended upon
request of the Reichstag as required by paragraph three
of Article 48.60 As expected Schmitt was far more con-
scious of the realistic political situation in the
Reichstag than Thoma, who appeared more interested in the
purely legal aspects of the case. Schmitt clearly fore—
saw a situation in which the Reichstag would either be
unwilling to challenge these emergency decrees, or be
unable to overcome its paralytic pluralism and form the
necessary majority to suspend these decrees.

Not even a realist like Carl Schmitt could have
foreseen the catastrophic results of the election of
September 1930. The election proved to be a great victory
for the radicals and for all practical purposes signaled
the end of a viable parliamentary form of government in
Germany. Most shocking was the ominous forward surge of
the National Socialists from 12 seats in 1928 to 107 in
the new election. At the same time the Communist Party
showed significant gains, rising from 54 to 77 seats.
Although the Social Democrats remained the strongest
party in the Reichstag, reduced by only 10 seats to 143,

the second and third strongest parties now consisted of

the two most fanatical and radically anti-republican

60State secretary Zweigert's summary of Schmitt
and Thoma Gutachten, November 10, 1930, BA, R—43-I,
Bd. 1870, pp. 380-383.

 

 

 

195

61 Bruening's

parties, the Nazis and the Communists.
plan for returning a submissive Reichstag, and his desire
to acquire the support of the German Nationalists for his
programs, were shattered as the Nationalist parties lost
many of their seats to the Nazis. Under these circum—
stances no stable majority coalition could be formed
except for a government of the right with the National
Socialists included in the government. A resurrection of
the Great Coalition was unlikely and offered no alter—
native since the member parties now controlled only 47.3
percent of the seats. Unwilling to take the Nazis into
the government Bruening was forced to assemble a minority
cabinet based on the Center Party and several small right—
wing groups, which received the toleration of the Social
Democrats.62
All hopes for the Reichstag reasserting itself and
irejecting the emergency decrees of Bruening's presidential
‘government were overshadowed by the now threatening danger
of the National Socialists. Along with many of his con—
ytemporaries Carl Schmitt had underestimated the potential

of the Hitler movement. Shortly after World War I he had

encountered the National Socialists during his Munich

 

61Horkenbach, Deutsche Reich, op. cit., p. 401.

62Alfred Milatz, "Das Ende der Parteien im
Spiegel der Wahlen 1930 bis 1933," pop Ende opp Parteien
1933, ed., Erich Matthias and Rudolf Morsey (Duesseldorf,
1960), pp. 756-758.

 

 

196

days. Then he considered them as an insignificant fanati—

63 As the Nazis

cal group whom he could not take seriously.
started to gain extensive support throughout Germany in the
late twenties Schmitt viewed them as an anti—constitutional
party which, like the Communists, should not be given the
opportunity to destroy the Republic. He argued that the
state could not remain neutral where its own existence was
concerned and that anti—constitutional parties should be
denied an equal chance to acquire power, particularly when
their actual goal included the destruction of the very
legal order granting them that opportunity. Schmitt called
such absolute neutrality an absurdity which no constitu-
tional order could tolerate. Consequently, he favored the
Law for the Protection of the Republic, which made sub—
version of the Republic a treasonable crime. And he sup—
ported restrictions against National Socialist and Com-
munist civil servants and the exclusion of National
Socialists and Communists from broadcasting over the

64 Until the very end of the Republic Schmitt main—

radio.
tained this adamant anti-Nazi position.
With the Nazi threat looming in the forefront the

varying political factions in the Reichstag still in

63Schmitt Interview, November 22, 1972.

64Carl Schmitt, Hugo Preuss: Sein Staatsbegriff
und seine Stellung in der Deutschen Staatslehre

(Tuebingen, 1930), p. 32.

 

 

 

 

 

197

support of the Republic feared that Bruening's defeat
would lead to further radicalization. These parties,
including the Social Democrats, managed to cooperate in
defeating proposals by the radicals calling for the sus-
pension of the chancellor's emergency decrees, and the
republican forces thereby forestalled a parliamentary con—
frontation which could have brought down the government.
In doing so these parties followed a course already pre-
dicted by Carl Schmitt, in that they were both unable and
unwilling to exercise their constitutional controls on
the emergency powers of the Reichspresident. For the most
part the Reichstag failed to have any further influence in
the policies of the Bruening government, and the presi-
dential system directed German policy for the next year.
In the course of these years Schmitt remained
totally unaware of Bruening's plans for the restoration of
the monarchy.65 He, of course, personally knew the chan—
cellor but he was never accepted into Bruening's confi-
dence. Before Bruening's appointment as chancellor the
two men had spent a few days together at a conference.
From their conversations Schmitt received no indication of

66

Bruening's monarchist tendencies. This was probably the

 

65Josef Becker, "Bruening, Praelat Kaas und Das
Problem Einer Regierungsbeteilung der NSDAP, 1930—1932,"
Historische Zeitschrift, Bd. 196 (1963), p. 110.
Bruening, Memoiren, op. oip., pp. 145-147.

 

66Schmitt Interview, July 13, 1973.

198

extent of Schmitt's close personal contact with Bruening
himself and their personal contact did not continue during
the chancellor's term of office. Unaware of Bruening's
true future intentions Schmitt continued publicly sup-
porting the chancellor's program of emergency decrees in
1930 and 1931. Schmitt would never relinquish his belief
in the necessity of the presidential system.

Proposals to utilize the presidential system and
the crisis as an opportunity for constitutional reform
actually disturbed the prophet of stability. Demands from
rightist political groups urging constitutional reform
existed throughout the Weimar Republic. The government had
established a committee of the Reich and the states to
study the problem in 1928 and subsequently reform bills
were introduced into the Reichstag.67 Pressures for such
reform grew stronger in proportion to the intensification
of the economic and parliamentary crisis. As a consistent
advocate of stability Schmitt felt that attempts at
reforming the constitution in the midst of a crisis would
involve dangerous risks. His position on the issue
emerged quite clearly in a speech he delivered in the
fall of 1930 to the Langnam-Verein, a prestigious organi—

zation of German industrialists. Fearing a catastrophe

Schmitt categorically stated, "I would not c0nsider any

 

67"Studie zur Reform der Reichsverfassung," BA,
R-43—I, Bd. 1865, "Reichsverfassung (1927-1933).“

 

199

fundamental constitutional reform at this time."68 As an

alternative he offered the constitutional execution of
Article 48 to overcome the crisis without tampering with
the existing political order. The constitution, he felt,
should be left alone and he warned that tampering with

it could lead to "incalculable and dangerous experi—

ments."69

To invoke Article 48 effectively Schmitt was will-
ing to allow the Reichspresident extensive prerogatives.
These prerogatives included the suspension of individual

articles of the constitution so as to protect the whole

constitutional order itself.70 Schmitt later explained

that the emergency decrees represented

anything but a dictatorship in some revolutionary
sense or a Staatsstreich. They do not bring into play
a new principle of government, but attempt to protect
the existing constitution in a difficult situation 71
against the breakdown of its central organs . . .

And it was precisely this intended use of Article 48 which

68Carl Schmitt, "Zur politischen SituatiOn in
Deutschland," Der Kunstwart, Jhg. 44, No. 4 (October 1930—
September 1931TT— . 255. Carl Schmitt, "Eine Warnung vor
falschen politischen Fragestellungen," pop Ring, Jhg. 3,
Heft 48, (November 30, 1930), pp. 844—845.

69"politischen Situation," Ibid., p. 256.

 

70Carl Schmitt, "Die staatsrechtliche Bedeutung
der Notverordnung, insbesondere ihre Rechtsgueltigkeit,"
(1930), Verfassungsrechtliche Aufsaetze, op. oip.,
pp. 244—245.

71Ibid., p. 260.

 

 

200

Schmitt defended against the majority of German jurists
present at the last conference of the Association of

72 Most of these

German Jurists meeting in Halle in 1931.
jurists considered the present practice of the government
as an abuse of the constitution. More and more jurists
and politicians after this period began speaking of the
dictatorial power of the president and referring to
Article 48 as the dictatorship article, in spite of
Schmitt's precise interpretation of these presidential
powers.73

Early in 1931 when pop Hueter do; Verfassung first
appeared in book form the issue of the president as the
defender of the constitution evoked varying reactions.
Schmitt's theory received the public approval of Johannes
Popitz, who published a major newspaper article on the
subject in Germania. This close confidant and friend of
Schmitt proclaimed that the thesis of pop Hueter "agrees
completely with the democratic principles on which the
Weimar constitution is based."74 Since Popitz was such a

respected figure within the bureaucracy his endorsement

helped establish the credibility of Schmitt's ideas,

72Willibalt Apelt, Jurist lo Wandel Der Staats—
formen: Lebenserinnerungen (Tuebingen, 1965), p. 192.

73Ibid.

 

74Johannes Popitz, "Wer ist Hueter der Verfassung,"
Germania, Jhg. 61, No. 176 (April 17, 1931).

 

 

 

 

 

201

especially within official circles. But that positive
acceptance of Schmitt's thesis contrasted sharply with
the interpretation of those unsympathetic to the presi-
dential system who, like Hans Kelsen, viewed Schmitt's
work as a renewal of the doctrine of constitutional mon—

75

archy. Schmitt's book so disturbed Kelsen that he pub—

lished a book in response, wherein he accused Schmitt of
constructing an ideology by mixing science and politics.76
Such controversial publicity no doubt added to the
recognition of Schmitt's ideas. By delivering an increas-
ing number of public lectures to influential groups, com-
bined with a prolific series of publications on topics of
pressing political concern, Schmitt's renown and popularity
continued to soar. Increasingly, his ideas attracted the
attention of various sectors of the political community as
well as the public in general. Needless to say, his popu—
larity mostly centered among those individuals and groups
supporting the strengthening of presidential power. The
more widespread Schmitt's ideas were disseminated the
more distorted and misused they became. If Schmitt had
intended that his ideas would only provide the justifi—

cation for Article 48 as a defense of the existing con—

stitutional order he had greatly miscalculated.

75
sein? (Berlin, 1931).
76

 

Ibid., p. 56.

 

202

The publicity accompanying Schmitt's works during
the parliamentary crisis impressed the conservative revolu-
tionary groups around 91o 3gp, the Herrenklub and the
Politisches Kolleg as they began recognizing the value of
Schmitt's ideas for their cause. Two of the most prominent

conservative revolutionary journals, Der Ring edited by

 

Heinrich von Gleichen, and Der Kunstwart, started reporting

77

on Schmitt's lectures and publications. These conserva-

tive revolutionary circles hardly shared Schmitt's concern
for the defense of the existing order. They utilized
Schmitt's critique of parliamentary government, party
pluralism, and his support of a strong presidential system
as a justification of their proposals for change, while
neglecting the basic goal of Schmitt, which was to apply
>residential power as a corrector to the failings of the
kimar system. It must be noted that this sudden upsurge
i interest in Carl Schmitt among conservative revolu—
ionaries occurred after 1929 and the parliamentary crisis
ad already begun.

The conservative revolutionaries looked to a new

tate form to replace the bankrupt Weimar system. One of

77"Umschau," pop Ring, "Zum Kapitel Staatsethik,"
19. 3, Heft 40 (October 5, 1930), pp. 701-702, "Carl
:hmitt ueber den totalen Staat," Jhg. 3, Heft 51

December 21, 1930), p. 912. Clemens Bauer, "Besprechung,
E_Hueter der Verfassung," pop Kunstwart, Jhg. 44

mtober 1935:September 1931), pp. 809-812. Martin Merck,
mtikel 48," pop Ring, Jhg. 3, Heft 31 (August 3, 1930),

n 547—548.

 

203

the most influential leaders of 212 $33 circle, Horst
Grueneberg, favored the introduction of a democratic
dictatorship as a means to a national revival. Grueneberg
borrowed much of his terminology and many of his central

ideas directly from Carl Schmitt, especially concerning

dictatorship.78 But whereas Schmitt saw the use of the

president's emergency powers as that of a commissarial
dictator authorized to preserve the existing order,

Grueneberg promoted the concept of the dictatorship as a

transition to a new political order.79

Hans Zehrer, editor of Die Tat and one of the most
vocal advocates of the conservative revolution, also made

extensive use of Schmitt's concepts. Zehrer mostly relied

on Schmitt's critique of parliamentary government and the

Reichspresident as the key to solving the existing

crisis.80 Even Zehrer himself, however, realized the non-

revolutionary and cautious intentions of Schmitt. Zehrer

78Horst Grueneberg, "Warum Diktatur?" Die Tat,
Jhg. 22, Heft 5 (August, 1930), Pp. 321-332, "Miffelsfand—
politik--Staatspolitik," 213 Egg, Jhg. 23, Heft 3 (June 3,
1931), pp. 191-212, "Die foederalistische Kulisse," Die
33;, Jhg. 23, Heft 4 (July, 1931), pp. 286-303. "_—

79Horst Grueneberg, "Zur Theorie des Antiparla—

mentarismus," Die Tat, Jhg. 22, Heft 2, (May, 1930),
pp. 120—121, "Diktatur ante portas!" Die Tat, Jhg. 22,

Heft 3 (June, 1930), p. 195.

80Hans Zehrer, "Die Kalte Revolution," Die Tat,
Jhg. 22, Heft 7 (October, 1930), PP. 484—511, "Rechts
oder Links?" Die Tat, Jhg. 23, Heft 7 (October, 1931),

PP. 506-559.

 

 

204

admitted that "Schmitt and Heller until now shied away
from the final consequences of their ideas. They both
hold open the way back, perhaps because they themselves
see no new goal."81
Thus, it would be a grave error to state that in
this period Carl Schmitt was either a driving force behind
the conservative or national revolution, or that he was
disassociated completely from members of the movement.
One of Schmitt's close friends in Berlin was the national
revolutionary Ernst Juenger. Just as Popitz brought
Schmitt into contact with government circles upon his
arrival in Berlin, Juenger served a similar purpose in
bringing Schmitt into contact with conservative revolu—
tionaries. Through this connection Schmitt first met
‘Ernst Niekisch, the originator of National Bolshevism.
:The three men often gathered in intellectual and political
1discussions, while remaining quite independent of each

82

other in political philosophy. In his weekly

Entscheidung, Niekisch even attacked Schmitt in 1932 as

the defender of a Staatsstreich.83
i?

l;

i 81Hans Zehrer, "Der Weg in das Chaos: Enthuel—
jlungen, Skandale, Sensationen," Die Tat, Jhg. 21, Heft 8
“(November, 1929), p. 568.

82Niekisch, Gewagtes Leben, op. cit., p. 242.

83Ibid.

 

205

A quite similar situation of personal friendship
and ideological dissonance existed between Wilhelm Stapel

and Schmitt.84

As editor of Deutsches Volkstum, an impor—
tant and widely read journal of a conservative revolu—
tionary nature, Stapel had established himself as one of
the intellectual leaders of that movement. His political
philosophy was a blend of extreme nationalism, a sincere
concern for social problems, and a virulent anti—semitic
outlook that, curiously enough, was matched only by his
contempt for the National Socialists. Certainly a member
of the conservative revolutionary movement, Stapel, none-
theless, strove to retain a relationship between that move—
ment and Christianity. Like other conservative journals,
Stapel's Deutsches Volkstum utilized many of the ideas

then circulating which owe their origin to Carl Schmitt.
The two man first became personally acquainted at a con-
ference in 1930. The religious aspect of Stapel's posi—
tion held a great attraction for Schmitt, as did Stapel's
support of Schleicher's later campaign against the National
Socialists. A co—worker of Stapel, Albrecht Erich

85

Guenther, was also a friend of Schmitt. This latter

relationship was further solidified by the fact that

m

4Heinrich Kessler, Wilhelm Stapel Als Politischen
Bgélggigp: Ein Beitrag zur Geschichte des konservativen
Nationalismus zwischen den beiden Weltkriegen (Nuremberg,
1967), pp. 148- -l49.

85Ibid., p. 147. Carl Schmitt, Hamlet, op. cit.,

 

P- 16.

 

206

Guenther had contact with Colonel Erich Marcks, the closest
link of Carl Schmitt with the Schleicher coterie. As was
the case with Schmitt's relationship to other conservative
revolutionaries, personal friendship did not insulate him
from public criticism from these same acquaintances. After
using Schmitt's analysis as the basis for several articles
on the constitutional crisis Guenther did not hesitate to
criticize Schmitt on the question of dictatorship.86
Another point of dissonance between Schmitt and the Stapel
circle stemmed from the extreme and irrational anti—
semitic tone of Deutsches Volkstum. Anti-semitism consti-
tuted no part of Schmitt's appraisal of Weimar's political
dilemma. Since early youth Schmitt had closely befriended
Jews, and absolutely no anti-semitic tendencies whatsoever
can be detected in his Weimar works.

Schmitt's rising celebrity did not go unnoticed by
more moderate political thinkers. Disagreeing with

Schmitt's defense of the presidential system, the direc—

tors of the Hochschule fuer Politik in Berlin still be—

 

lieved his work credible enough to invite him to lecture

87

at their institution from 1929 to 1933. This would

 

86Kessler, Ibid., p. 149.

 

87Deutsche Hochschule fuer Politik Sonderveranstal-

tungen 13 Sommersemester 1929, Ausspracheabende ueber
"Probleme oop Koalitionspolitik," Politisches Kolleg, BA,
R-118, No. 28, "Beziehung zur Deutsche Hochschule fuer
Politik, (1927-1930)."

 

 

 

 

207

hardly have been the case if they considered Schmitt a
serious threat to the continued existence of the Republic.
In fact, it was in a forum with Hermann Heller at the
Hochschule in 1927 that Schmitt had first introduced his

88

controversial friend-enemy theory. The Hochschule also

published other works by Schmitt such as "Die neutralen

Groessen im heutigen Verfassungsstaat."89

The popularity
Schmitt enjoyed after 1929 paved the way for his appearance
as a regular guest lecturer at the Hochschule. It was,

of course, the policy of the Hochschule to provide a wide
divergence of political viewpoints, but the frequent reli—
ance on Schmitt's lectures throughout all of these years
demonstrated a more than token willingness to allow Schmitt
to express his opinions. Schmitt, for example, was one of
the guests invited to the 10th anniversary celebration of
the Hochschule along with other public figures of pro-
minence such as Adenauer, Braun, Brecht, and Heuss.90

Because of his later association with the National

Socialists Schmitt's connection with the Hochschule is

 

88 .
Wolfers, Probleme, op. c1t., p. v.

89Carl Schmitt, "Die neutralen Groessen im heutigen
Verfassungsstaat," Probleme opp Demokratie; Eine Ausgabe
égp deutschen Hochschule fuer Politik (Berlin, 1931),
Pp. 48—56. The original manuscript is in the files of
the Hochschule fuer Politik, Geheimes Staatsarchiv,
Preussischer Kulturbesitz, Berlin, Rep. 303, No. 181.

90Geheimes Staatsarchiv, Rep. 303, Nos. 168, 169,

 

 

 

246.

208

often conveniently forgotten. Such was the problem with
the future president of the German Federal Republic,
Theodor Heuss who, in his memoirs, carefully dissociated
himself from Schmitt. Heuss admitted candidly that he was
present at the Handelshochschule in 1930 when Schmitt
delivered a lecture on Hugo Preuss, but Heuss denies that
he ever directly participated in the affair.91 Yet,

Heuss thought enough of Schmitt and his work to write him
a very cordial letter afterwards thanking Schmitt for the
"strong intellectual stimulation," remarking, "I sincerely
hope that the lecture will be made available in print.“92
Furthermore, Heuss neglected to mention in his memoirs

that when he lectured at the Hochschule fuer Politik on

 

world history in the nineteenth century, Schmitt handled
the course on the twentieth century in that same series.
As late as the fall of 1932 Heuss and Schmitt worked

together in a seminar entitled "Die Reichsverfassung in

Wortlaut und Wirklichkeit."93

This is not to suggest
that there existed any ideological affinity between
members of the Hochschule like Heuss and Carl Schmitt.

The intention is rather to point out that during this

 

91Theodor Heuss, Erinnerungen, 1905-1933

(Tuebingen, 1963), p. 303.

92Theodor Heuss to Carl Schmitt, January 20, 1930,
Carl Schmitt-Personal Papers.

93Geheimes Staatsarchiv, Rep. 303, No. 168.

209'

period Schmitt still received a good deal of respect from
moderates and was not condemned and banished by these
moderates as an underminer of the Republic.

Weimar contemporaries and intellectuals of all
political persuasions recognized Schmitt as the great
theorist of Article 48 and the Ausnahmezustand, even though
a considerable number disagreed violently with his posi—
tion. As these subjects became the central issues at the
end of the Weimar Republic Schmitt received the attention
commensurate with his work on these problems. He did not
create the crisis but merely analyzed its causes, proposed
solutions, and worked with the government to resolve the
problem. Not all of those with whom Schmitt had contact
and even personal friendships were willing to accept his
support for the presidential system. Even among those
favoring the presidential system it meant different things
to different individuals. Disregarding Schmitt's proposal
for the defense of the existing order, the conservative
revolutionaries employed what they found helpful or con—
venient in his work and neglected his actual intentions.
So far as Schmitt was concerned he still believed he was
playing the role of the neutral intellectual who, though
active in political affairs, stood above the narrow
partisanship of parties and worked for the benefit of the
entire nation. Despite his personal relationships to

individuals of varYing political viewpoints and

210

allegiances, Schmitt's loyalty still remained with the
neutral force represented by the Reichspresident and
reinforced by the political activities of the Schleicher
clique. This association with Schleicher would prove
crucial and pave the way for Schmitt's important role as

the Weimar Republic came to an end.

CHAPTER VI

CARL SCHMITT AND THE END OF WEIMAR, 1932

The convulsive year of 1932 marked the final
demise of the ill-fated Weimar Republic. In that fateful
year the republican forces failed to unite and take advan-
tage of this last opportunity to resist the National
Socialist acquisition of power and avoid the historical
calamity that followed. Not since the political and eco—
nomic upheavals of the early Republic had a single year
contained such heightened political intensity and
radicalization. The German people were saturated with con—
stant political activity which, rather than alleviating
their political and economic troubles, contributed to the
further deterioration of the body politic. Electoral
campaigns, public disorder, and governmental ineptitude
dominated the scene. Three successive Chancellors would
Prove ineffectual by the end of the year. While the waning
Of the German republican experiment rapidly continued the
Reich government instituted martial law in Prussia. This
action culminated in one of the most famous political
trials of Weimar, Prussia versus the Reich, and added to
the complexity of the crisis. Germans focused their
attention and applied their political energies towards

211

 

 

 

212

Hindenburg's reelection as president, and on two of the
most intense Reichstag elections in German history, with a
third in preparation. For more than a year political
radicalization had reached the stage of street fighting
and physical harassment of opponents, mostly between Nazis
and Communists, as the threat of civil war loomed in the
immediate background. Now in 1932 the Nazis and Communists,
who normally faced each other in street confrontations,
moved into the center of the political arena as the July
elections provided them with a combined majority of seats
in the Reichstag. Unwilling to compromise with their
ideological opponent, or with any other party, these
extremist parties made a governing coalition an impossi—
bility.

As the year opened the critical question facing
the government was how to handle the increasing strength
and p0pularity of the National Socialists. Although
Hitler was determined to follow a course of legally
acquiring power, many Nazi party members were still
advocating revolution. Each approach presented a threat
to those remaining loyal to the existing constitution,
including Hindenburg, who took his constitutional oath
qUite seriously. After Hitler had polled almost 37 per
cent of the votes in the April 1932 presidential election,
and the SA had swollen to four times the size of the

German army, these threats appeared all the more ominous.

213

In this tense atmosphere Carl Schmitt wrote his
highly celebrated Legalitaet goo Legitimitaet, to warn
against the potential destruction of the Weimar constitu-
tion through constitutional means.l Schmitt had hoped to
avert this tragic eventuality by allowing the president
and the cabinet to conduct the business of government
unhampered by the stalemate in the Reichstag, and simul—
taneously prevent the extremists of the left or the right
from seizing power legally or by revolutionary methods.
These two essential objectives stood in the forefront of
his political beliefs since the early days of the
Republic.

The greatest threat to the existing constitutional
order Schmitt identified as a "value—neutral" and "purely
functional" interpretation of the constitution. As a
case in point he selected the literal wording of Article 68
Of the Weimar constitution: "Reich laws are enacted by the
Reichstag." That article best exemplified the purely
functional type of legal thought Schmitt admonished,
because it concerned only the legal procedure for passing
laws and indicated a certain "neutrality" regarding the
actual "substance" of those laws. But every constitution,
he noted, embodies certain basic values and principles

(e.g. these could include democracy, private property,

 

lCarl Schmitt, Legalitaet und Legitimitaet
(Berlin. 1932). _—

214

religious freedom, etc.), which are essential parts of a
particular constitutional order. No constitution could
remain "neutral" towards its own fundamental values and
principles. A "purely functional" interpretation of the
constitution, Schmitt argued, would involve a certain
"value-neutrality" towards laws which were passed accord—
ing to the specified constitutional procedures for enact—
ing laws. This would be the case even when the "substance"
of these laws might contradict the basic values or prin—
ciples of the constitution, or even endanger the entire
legal order itself.

This "value—neutrality" would also allow any polit—
ical party an "equal chance" in the legal acquisition of
power. Under a parliamentary, legislative state system
law is determined by the majority in the legislature, that
is by 51 per cent of the delegates. Each group, party, or
movement had the constitutional right of having the equal
chance to form this majority and thereby hold the instru—
ment of legality.2 Following a strict "value-neutral"
interpretation it would be unconstitutional to limit a
party's equal chance in the acquisition of power. This
method of governing through the formation of simple
majorities is sensible under normal conditions and when

there exists a substantial homogeneity and consensus

 

2Ibid., pp. 30-32.

215

within the whole nation.3 As Schmitt had often indicated
contemporary Germany lacked this necessary political con-
sensus. And anti—constitutional parties had seized upon
the tactic of the equal chance as a constitutional vehicle
to institute party programs which might involve the
destruction of the constitution. A strict value—free and
formalistic interpretation would allow this to occur
legally, because such formalistic legality consisted simply
of a mathematical measurement of a 51 per cent majority.
Whoever controlled this 51 per cent could legally relegate
the remaining 49 per cent to illegality. The incumbent
majority could in a legal manner close forever the door
through which it came to power by denying its political
opponents the equal chance, and through legal manipula—
tions ban these opponents as traitors. "The majority

then suddenly is no longer a party; it is the state

itself."4

An incumbent party would be assisted in imple—
menting these plans by what Schmitt termed the special
"political premiums" (politischen Praemien) or advantages
that accompany the legal possession of power. Many cru-
cial laws, decrees, and administrative functions require

interpretation or enforcement. It would be the

 

3Ibid., p. 31.

 

4

Ibid., pp. 32—33, 35.

 

216

prerogative of the party in power to decide on many of
these consequential matters and, at the same time, that
party would also have at its disposal the entire bureau-
cratic state apparatus, which it could use to its own
advantage. These "political premiums" would greatly
enhance the power of the incumbent party and facilitate
the realization of its party goals.

It then becomes a question of which group had the
legal power in its hands at the moment when finally the
whole legal system is thrown aside. That group is then
capable of constituting its power on new foundations.5
The ultimate consequence of a "value-neutral" and "purely
functional" adherence to the constitution was totally
unacceptable to Schmitt who, for years, had argued that a
parliamentary legislative state cannot remain neutral
towards itself and its own principles.6

Specifically, Schmitt had in mind the legal acqui~
sition of power by either the National Socialists or the
Communists. Each in turn would attempt to capitalize on
its control of legality and the accompanying "political

premiums" to change the constitution legally under

Article 76, and institute whatever form of government

 

217

they desired.7 In this respect it came down to the ques-

tion of the limits of constitutional change. That there
belonged certain fundamental principles to each constitu-
tion which could not be changed through simple constitu—
tional revision was a long standing precept in Schmitt's
constitutional theory. This included the principle that a
constitution could never offer the legal method by which
its own legality would be destroyed.8

Besides this parliamentary legality principle
there also existed in the Weimar constitution a second type
of legality in the form of "plebiscitary legitimacy,"
which recognized the people as sovereign and as the ulti—
mate source of all legitimacy. Article 1, "political
authority is derived from the people," clearly acknowledged

the legitimacy held by the people. That legitimacy could

be appealed to directly through plebiscites under

7Schmitt unequivocally stated that, “regarding the
many Gutachten and court decisions concerning the legality
or illegality of the National Socialist organizations
I would once more like to emphasize that for National
Socialists, Communists . . . such questions must in no
way be understood in terms of individual, isolated consti—
tutional articles . . . but from this fundamental inter—
pretation of the system of legality and especially
Art. 76." Otherwise Schmitt warned, "all parties must be
given the lawful and unconditional equal chance to form
the majorities which are necessary . . . in order to
bring about its aspired goal--Soviet Republic, National
Socialist Reich . . . Monarchy of the old style, Aristoc—

 

racy of some form——and another constitution." Ibid.,
PP- 50—51.
8

Ibid., p. 61.

 

 

 

 

218

Articles 73, 74, and 76, which govern referendums and
initiatives.9 As the Weimar crisis worsened this
"plebiscitary legitimacy" took on an added significance.
Owing to excessive pluralism and the paralysis of the
present Reichstag the legality and the power of the legis-
lative system was in doubt. Each party, therefore,
attempted to reinforce its power by appealing to the
"plebiscitary legitimacy" of the people. Dissolving the
Reichstag had become a normal affair and elections had
become plebiscites in search of the legitimacy held by the
people. In fact, or so Schmitt believed, this "plebis—
citary legitimacy" was the only remaining form of generally
recognized political legitimacy.lo
The appeal to the "plebiscitary legitimacy" of the
people required a government or some other authority, and
one that the people could trust, to present the correct
questions and alternatives to the electorate and one which
would not misuse the tremendous power inherent in that
position.11 To fulfill that crucial role Schmitt naturally
selected the Reichspresident. As the defender of the

legitimate constitutional order he also possessed the legal

authorization under Article 48 of the constitution to

 

91bid., pp. 62-67.

loibid., pp. 92-93.

llIbid., p. 94.

 

1.7.71 # Tmifl—aflh—hflayr—r= e F i._ 1 1

 

219

prevent the legal abuse of power. The Reichspresident
alone retained the trust of the German people and conse-

quently the right to appeal directly to the "plebiscitary
legitimacy" of the people to support his own constitutional
legality. Beyond this general framework, however,
Schmitt's book contained no precise program or specific
proposals. Given the circumstances of late Weimar

Schmitt merely saw the alternatives as a recognition of

the plebiscitary legitimacy of the people in relationship
to the office of the president, or the persistence of a
legality system, with its value-neutral functionalism
granting the equal chance to all parties. If this "neutral
majority functionalism" prevailed it would mean the end of
the Weimar constitution. “Dann raecht sich die Wahrheit"

(Then reality will avenge itself).
Schmitt's Legalitaet poo Legitimitaet and its
cogent arguments had enormous relevancy for the events of
1932. Quite understandably the book was widely pub-
licized and discussed in political circles from right to
left. Each party in the famous trial Prussia versus the
Reich utilized its arguments. Unfortunately, in the end
the most important lesson of the book was ignored and the
Nazis were granted the equal chance legally to acquire

power .

 

lzIbid., pp. 97—98.

 

220

Because of Schmitt's increasing involvement with
the politics of the presidential system critics began in
1932 referring to him as the Kronjurist of the central
government.13 It was also this connection between Schmitt
and the activities of the presidential government during
1932 which has led historians to draw erroneous conclu—
sions as to Schmitt's actual involvement in these affairs.
One such recent interpretation has been published by
Heinrich Muth, who holds that "in the summer of 1932

14 Muth

Schmitt was a man of the Papen government."
stated further that Schmitt closely identified himself
with the plans of Papen, minister of the interior Gayl,
and the programs of the DNVP, including proposals for
immediate constitutional revision.

That Schmitt worked with the central government is
la commonly known fact. But one cannot for this reason
iconsider Schmitt as the man of Papen, Gayl, and the German
iNationalists. After his arrival in Berlin Schmitt had
.become intimately associated with the political coterie

1around Schleicher, and it was Schleicher's position that

fiSchmitt supported. Without making this basic distinction

l

 

. 13 .
, Rudolf Morsey, "Die Deutsche Zentrumspartei,"

nDas Ende, op. cit., pp. 323-324.

T,

. . l4Muth, "Carl Schmitt In Der Deutschen Innen—
politik Des Sommers 1932," Historische Zeitschrift, op.
lClt-I pp. 107, 112. ‘__

15

 

Ibid., pp. 113, 115—116, 121, 132-133, 136-138.

 

 

 

 

 

 

 

 

221

between his attitude toward Papen and Schleicher neither
Schmitt's writings nor his activities can be properly
understood. For the plans of Schleicher were by no means
identical to those of Papen, Gayl, and the DNVP. One of
the most significant points of antagonism between Schleicher
and Papen concerned the latter's program for immediate con—
stitutional revision. Though Schleicher himself had once
embraced similar notions he totally disapproved of Papen's
constitutional experiments during the period of sustained
crisis following the 1930 elections. Such constitutional
experiments were completely inconsistent also with Carl
Schmitt's belief in the need for restoring order, peace,
and stability before tampering with the existing order.
As the Weimar Republic came to an end Schleicher and
Papen represented two opposing factions.

Nevertheless, after the presidential elections of
April 1932 Schleicher had selected Papen to replace
Bruening as chancellor. At that time Schleicher thought
that he could control Papen and that the new chancellor
could serve as the link to a right-centrist coalition
which would support a presidential government and receive

16

the toleration of the National Socialists. It was

Schleicher's expectation that new Reichstag elections

 

16Earl R. Beck, Prussian Republic, op. 212'!
Pp. 73-74. Bracher, Die Aufloesung, op. oip., pp. 458,
579. Hajo Holborn, A History op Modern Germany, 1840-
1945 (New York, 1970), PP. 692—693.

 

 

222

would return a favorable rightist parliament drawing away
some of the appeal of the Nazis, and that the new cabinet
would stand above parties. In pursuit of this policy
Schleicher convinced Hindenburg to dissolve the Reichstag
on June 4, and schedule new elections for July 31.

Backing Schleicher's plans for a move to the right,
which he hoped would diminish the appeal of the Nazis,
and in fearful anticipation of the further growth of that
movement, Schmitt published an article in the conservative
Deutsches Volkstum against granting the "equal chance"
to anti—constitutional parties.l7 That article was essen-

tially a concise version of his work on legality. With

 

the elections approaching the editors of the conservative
Taegliche Rundschau found Schmitt's arguments so appro—
priate that they had him publish an excerpt in their own
journal, to which they added the following conclusion:

Our practical application: Whoever provides the
National Socialists with the majority on July 31,
acts foolishly, even though he is not a National
Socialist and sees in this party only the lesser
evil. He gives this still immature ideological and
political movement the possibility to change the con-
stitution, to establish a state church, to dissolve
the labor unions, etc. He surrenders Germany com—
pletely to this group. Therefore: if under the cir—
cumstances it was until now good to encourage Hitler's
resistance movement, it would be extremely dangerous

l7Carl Schmitt, "Legalitaet und gleiche Chance
politischer Machtgewinnung," Deutsches Volkstum, 2
Juliheft (1932), PP- 557-564.

223
so do so on July 31, because 51% gives the NSDAP 18
political premium of incalculable Significance.

The thoughts and warning of Carl Schmitt and these
small conservative circles never reached the masses of the
voters. The July elections ended in a spectacular victory
for the Nazis, as they received 37.8 per cent of the seats
in the Reichstag. And along with the Communists‘ slight
increase to 14.6 per cent, Schleicher's hopes for a non-
Nazi rightist parliament came to nought as the Nationalists
were reduced to a mere 8.5 per cent. Together the radical
parties now controlled 52.4 per cent of Reichstag seats,
in Schmittian terms the dangerous absolute majority.
Fortunately these two parties were incapable of cooperating
with each other to take advantage of this situation and
they had to content themselves with simply preventing the
formation of any governing coalition. Since the Nazis had
more than doubled their vote compared to 1930 returns
their potential seizure of power, legally or otherwise,
became more distressing.

Not only had Schleicher and Papen failed to receive
the increased national support they sought, but by their
pre-election actions in Prussia they had completely ali—
enated the Center Party and the moderate left. For on

July 20, Papen had, in the name of the Reich government,

l8Carl Schmitt, "Der Missbrauch der Legalitaet,"
Taegliche Rundschau (July 19, 1932).

 

224

placed all of Prussia under martial law. That move, less
than two weeks before this critical election, drew pro-
tests of unconstitutionality from the Center and declara—
tions from the Prussian SPD government that it had been
the victim of a Staatsstreich.

The immediate origins of the struggle between the
Prussian and the Reich governments went back to the elec—r
tions to the Prussian Landtag on April 24, 1932. The
phrase "who controls Prussia controls the Reich" was an
accurate political estimation accepted by the left as
well as the right. Constituting two-thirds of the
national territory, three-fifths of its population, and
with its police force of 85,000 men closely approximating
the German army, the Prussian state presented a tremendous
counter weight to the centralized authority of the Reich.
Reforms for changing the relationship between Prussia and
the federal government had been debated throughout the
Weimar Republic. Most reform proposals had dealt with the
merger of the two governments. The continued functioning
of the long standing Weimar coalition in the Landtag made
Prussia the bulwark of republican democracy in Germany.
With the April elections the Prussian Weimar coalition
was shattered forever. The Nazis doubled their seats and
the election returns reduced the coalition to a minority,

leaving the Prussian parliament in the same state of

 

225

paralysis in which the Reichstag had been suspended since

1930.19

The Social Democratic government in Prussia, no
longer supported by a majority in the Landtag, resigned
and remained in office temporarily as a "care-taker"
government. They were able to do so because of a change
in the voting procedure governing the election of the
minister president of the parliament. Previously, if no
one received a majority in the Landtag, the one receiving
the most votes in the second election was to hold that
office. Recognizing the possibility of large Nazi gains
in the Landtag election the SPD used their pre—election
majority to change this procedure before the April elec—
tion. Under the new regulations an absolute majority was
necessary in order to select a minister president. Thus
the SPD government would hold the reins of power until a
new majority was formed. The legality of this governmental
move was debatable, but the SPD argued that they pursued
this course so as to prevent the Prussian government, its
bureaucracy and police from falling into the hands of the

Nazis. Throughout the Weimar era the republican govern-

ment of Prussia had imposed harsh measures against the

Nazis.

 

19Milatz, "Das Ende," op. cit., pp. 766—770.

226

The Prussian situation worsened after the Reich
removed the ban on the Nazi SA in May of 1932. Political
street battles resulted in 99 dead and 1,125 wounded
seriously in the brief period following that repeal of the
SA ban. A widespread fear emerged that these disorders
might lead to civil war. Papen and his interior minister
Gayl, seized upon this opportunity to destroy the power of
the Social Democrats in Prussia. By doing so they hoped
to prove the effectiveness of their newly formed govern-
ment in fighting the Communists and at the same time
assure that the powerful Prussian police would not fall
into the hands of the Nazis. Pursuing this plan the Papen
government on July 20, 1932 proclaimed a state of emer-
gency in Prussia under Article 48, dismissed the Prussian
SPD government and instituted a Reich commissar for
Prussia.20 The affair initiated a most dramatic court—
room confrontation before the German supreme court be—
tween the incumbent Prussian government and the Reich
over the constitutionality of Papen's actions.

Carl Schmitt played a central role in these legal
proceedings but not in the political intrigues leading up
to the removal of the Prussian government. The first
discussions regarding the proposed action occurred at a

cabinet meeting on July 11. Papen subsequently submitted

20Beck, Prussian Republic, op. cit., pp. 97—101_

 

227

21

his scheme to Hindenburg two days later. When the issue

was brought to the supreme court, which first considered
the Prussian appeals on the 23rd of July, the central

government began to make its preparations for the case.

In the cabinet meeting of July 25, Papen stated that, "it

is already decided that counselor Meidinger as well as
professors Carl Schmitt in Berlin, Jacobi in Leipzig and

Bilfinger in Halle would be taken into consultation as

representatives or Gutachtern for the Reich government."22

This was the first mention of Schmitt's involvement in the
affair. Although Schmitt's ideas and publications con-
cerning the equal chance, the Ausnahmezustand, and

Article 48 took on additional importance in the legal

21Bracher contends that Carl Schmitt was somehow
involved in overcoming Hindenburg's hesitations concerning
the proposed action against Prussia. But the document
cited as evidence contains only the fact that in prepara-
tion for the case before the supreme court Schmitt later
made himself familiar with the material Papen presented
to the Reichspresident. Bracher's source, former General
and Ambassador Eugen Ott, merely stated that, "in the
subsequent process of the supreme court against the Reichs—
government this was represented by professor Carl Schmitt,
who for this purpose had to make himself thoroughly
familiar with the material." Bracher 212 Aufloesung,
‘92: oip., p. 509. For the source of this argument see:
"Auszug des Botschafters a. D. Eugen Ott an den Sohn des
jReichskanzlers a. D. v. Papen vom 26.12.1949," Archiv,
,Institut fuer Zeitgeschichte, Munich, 253/52, pp. 00007—
‘00008.

22BA, R-43—I, No. 1457, Kabinettsprotokolle, Juli
1932‘Sept. 1932, "Niederschrift ueber die Ministerbes-
‘prechung am 25 Juli 1932 in der Reichskanzlei: 2)
Streitsache zwischen dem Reich und der Preussischen
Staatsregierung vor dem Staatsgerichtshof," pp. 186—187.

 

 

 

 

 

 

 

 

228

arguments before the supreme court, his ideas in no way
served as the motivating force behind the actions of the
Papen government. And rather than being a puppet of Papen
and Gayl, Schmitt acted merely as the legal adviser on
behalf of the Reich government as he had already done with
Bruening. The position Schmitt defended at Leipzig he had
well developed before anyone considered Papen for the
chancellorship. That Schmitt held these views concerning
the power of the Reichspresident under Article 48 was very
important in the government's selection of him for this
case, as obviously was his public and private support for
the presidential system since its inception. The decisive
factor in the selection of Schmitt was his close associ-
ation with the Schleicher clique. Schleicher had insisted
that Schmitt actually represent the government in

23 After his selection Carl Schmitt only met with

1Leipzig.
iPapen a few times and then only regarding the trial.
l At that same July 25 cabinet session Papen

reported that "professor Schmitt will publish an article

gon July 29, in the Deutsche Juristen-Zeitung concerning
ithe constitutional dispute between the Reich and the
Prussian state government and support the Reich govern—
ment in this article." Gayl added that "together with

professor Schmitt he would like to establish the

23Schmitt Interview, July 13, 1973.

 

 

 

 

 

 

229

24

framework of the case." That article appeared on

August 1, two months before the scheduled opening of the
trial. Nothing in that article suggested that Schmitt sup—
ported the Papen-Gayl plans for constitutional reform.
The article addressed specifically the case at hand and
its arguments were no simple fabrications contrived to
support the government's case. This article had been
requested of Schmitt by the editorial staff of the
Deutsche Juristen-Zeitung.25 There was nothing in the
article to indicate the manipulative influence of anyone
on the Kronjurist. Schmitt, in effect, reiterated the
arguments he had constructed for years relative to the

power of the Reichspresident and his position as a neutral

24Muth takes this latter statement to be an indie
cation of the working relationship between Gayl and
Schmitt, and also as evidence that Schmitt supported the
plans of Gayl and the DNVP. There exists, however, abso—
lutely nothing in the Gayl Nachlass to indicate this and
as will be shown below, Schmitt never supported Gayl's
plans for constitutional revision at this time. BA,
R- 43- -I, No. 1457, p. 187. BA, Nachlass Wilhelm Freiherr
von Gayl, Reichsminister des Inneren. Muth, "Carl

‘Schmitt,“ op. cit., pp. 112-113.

25"Concerning this currently most important and
,topical question we are publishing the following opinion
which we requested of one of our foremost constitution~
alists and one of the renowned experts. The Editorial
”Staff." Carl Schmitt, "Die Verfassungsmaessigkeit der
Bestellung eines Reichskommissars fuer das Land Preussen,"
.Deutsche Juristen- Zeitung, Jhg. 37, Heft 15 (August 1,

{1932), p. 953. A shortened version of this article had
1already appeared in the Deutsche Allgemeine Zeitung,

No. 349, on July 29, under the title, "Ist der
Reichskommissar verfassungsmaessig?" A copy of the latter

is in the Rihse Sammlung, 5153, Kriegsarchiv, Abt. IV,
Munich.

 

230

force. The Reich government received Schmitt's total
support because he believed in the correctness of its
position. He had consistently, in public speeches and
writings, backed the actions of the Reichspresident ever
since his arrival in Berlin.

The current situation in Prussia, Schmitt argued,
brought both paragraph one and two of Article 48 into
operation. Under paragraph one the Reichspresident could,
through armed power if necessary, force a state to fulfill
its constitutional and legal obligations. In this case
he could force the care-taker Social Democratic government
from office. Paragraph two authorized the president to
utilize any measures necessary to reestablish public order
and security. Thus, the introduction of a Reichscommissar
for Prussia. The real question Schmitt viewed as more
political than constitutional in nature. "There is no
doubt," he wrote, "that the essential point of controversy
in the case concerns the political evaluation of two
parties, the National Socialists and the Communist
That in the past Article 48 had been instituted
against both parties was a known fact, but it was always
executed by a Reichspresident who, standing above parties,

acted as a neutral force. Currently the danger was that

this type of executive action might become the instrument

26Schmitt, "Die Verfassungsmaessigkeit," op. cit.,

p. 958.

231

of the contesting political parties, each of whom would
use any legal means available to outlaw its opponents.
The theory of the "equal chance" would then become a tool
of the incumbent party. Here Schmitt was alluding to the
actions of the care—taker SPD government and its repres—
sive measures against the Nazis. Schmitt in no way
favored the Nazis in this case and he restated that "on
the other hand it would, of course, be totally impossible
to give the equal chance to a party which is an enemy of

the state."27

But to prevent civil war a policy excluding
any one political party from the equal chance must be
directed by the Reichspresident who stood above the con-
tending parties in question. What Schmitt did was to
interpret conflicts between the Reich and a state as a
struggle between the Reich government and parties. That a
state government might become the naked power instrument
of the incumbent party which would then deny the "equal
chance" to its competitors, was not just inserted at this
time to justify Papen's actions against the Social
Democrats in Prussia. It had been a long-standing prin—
ciple of Schmitt's and already in 1931 he noted that "in

many law suits between the Reich and a state which are

brought before the supreme court it is obvious that not

 

27Ibid.

 

 

232

the Reich and a State, but two competing party coalitions
are the real parties in the proceedings."28
Viewing the Papen decrees from a quite different
perspective the Prussian SPD government, and those sym—
pathetic to its cause, dismissed Schmitt's arguments as
mere rationalizations. The SPD ministers and their sup-
porters were convinced that Papen had violated the con—
stitution with the expressed intention of acquiring abso-
lute control over Prussia. Papen's ultimate objectives,
as they saw it, were twofold. He wanted to solve the
question of Prussian—Reich dualism by force and, in the
process, destroy the power of the SPD in Prussia. Both
moves would supposedly demonstrate the strength and via-
bility of the Papen government and thereby bolster the
chancellor's public image and political power. The SPD
also suspected that Papen's actions were a concession to
the National Socialists in return for Nazi toleration of
the policies of the central government. Since the Prussian
SPD government had always been the greatest adversary of
the NSDAP, removal of the SPD cabinet would certainly be
advantageous to the Nazi Party. Throughout the contro—

versy that followed the action of July 20, the Prussian

government saw the main issue as the defense of its

28Carl Schmitt, "Reichs— und Verwaltungsreform,"

Deutsche Juristen-Zeitung, Jhg. 36, Heft 1 (January 1,
1931), p. 7.

 

233

constitutional rights, and those of the state of Prussia,
against the unconstitutional and authoritarian methods of
Papen.

The supreme court proceedings finally began on
October 10, and in the meantime the parties to the case
against the Reich expanded to include Baden and Bavaria,
as well as the Catholic Center Party and the SPD factions
of the Prussian Landtag. Germany's supreme court, the
Staatsgerichtshof which met in Leipzig, was not a permanent
judicial body but one assembled to hear such cases. The
political ramifications of the trial along with the pres—
tige of the trial lawyers attracted a great deal of pub—
licity. Several of Weimar's greatest jurists confronted
each other in a proceeding that would significantly influ—
ence the future of the Republic. Pleading the case for
the Reich were Carl Schmitt, Erwin Jacobi, and Karl Bil—
finger, opposing Friedrich Giese, Arnold Brecht, Gerhard
Anschuetz, Hans Nawiasky, Hans Peters, and Hermann Heller.
From a personal standpoint the trial represented a pro~
fessional triumph for Carl Schmitt. He now participated
in a public political trial of immeasurable consequences
with the attention of the whole nation focused on the
outcome of these proceedings. The highest court in
Germany now debated the theories he had advocated through-
out his career. His works on dictatorship, Article 48,

and on the defender of the constitution were requested as

234

29 No doubt Schmitt found

reference works by the court.
this increased publicity exceptionally gratifying; it
reassured him of the importance of his work. Carl Schmitt
had reached a peak in his career while still in his early
forties.

Schmitt's adversaries across the courtroom were
equally knowledgeable of the legal intracacies and polit—
ical ramifications of the case. Arnold Brecht, then the
Ministerial Director in the Prussian Ministry of Finance,
for example, was a specialist in the matter of Reich-
state relations and the problems of federalism. From his
experiences as Prussia's representative to the Reichsrat,
where he served on the committee to study Reich reform,
Brecht had become intimately acquainted with all aspects
of the historic case now before the court. As an author

of several works on constitutional law and administration

he had also established himself as a prominent legal
scholar.

In the first opening statement against the Reich
Arnold Brecht introduced Carl Schmitt's theory of the
"equal chance." Brecht cited several passages from

Legalitaet und Legitimitaet to justify the actions of

 

29"Handakten Dr. D. Arian, Ministerialrat
Verfassungsstreitsache der Lander Preussen, Baden und
Bayern gegen das Deutsche Reich betr. Verordnung des

Reichspraesidenten vom 20.7.1932 vor dem Staatsgerichtshof,"

BA, Kleine Erwerbung, No. 337-1, 1932, p. 473.

235

30 To such use of

Prussia against the National Socialists.
his own arguments Schmitt responded with the decisionist
phrase, which one finds in his earliest works, "Wer
entscheidet?"3l Schmitt reiterated the essential element
of his theory that Brecht had neglected. One political
party cannot determine the legality or illegality of
another. Only an independent government could so decide,
in this case that meant the Reich government. The results
of such action on the part of the SPD against the Nazis,
Schmitt sincerely feared, could lead to civil war. With
visions of the upheavals and conflicts of the early
Republic impressed in his memory the Kronjurist wanted to
avoid a new rash of civil conflicts. Acutely aware of

this potential danger, Schmitt knew that the army could

not cope with a two front confrontation with the Communists
and the Nazis. That was a common nightmare among all

members of the Schleicher coterie. Like all the Schleicher

cohorts Schmitt believed that the handling of the Nazis,

especially after their growing electoral victories showed
their popularity with more than a third of the nation,

should be left to the Reich government which would proceed

cautiously.

 

0Preussen contra Reich vor dem Staatsgerichtshof.
Stenogrammbericht der Verhandlungen vor dem Staatsgerichts—
hof in Leipzig vom 10. bis 14. und vom 17. Oktober 1932.

(Berlin, 1933), p. 12.
31

Ibid., p. 39.

 

236

As this complicated trial proceeded the inter—
related questions of the nature of the Reich, the presi—
dent's emergency powers, and of the constitutionality of
Papen‘s actions all came to the forefront. According to
Schmitt the Reichspresident merely executed his consti-
tutional obligations under Article 48, which authorized
him to assure that a state fulfilled its obligations
(paragraph one) and to reestablish order and security
(paragraph two). The court should consider both para—
graphs as one unified authority. By not maintaining
order and security and by refusing to follow the policies
of the Reich, Prussia had failed to fulfill her obligations
to the constitution and the Reich. Consequently, the
Reichspresident had the authority to invoke paragraph two
as a means to reestablish security, and concurrently
invoke paragraph one to force Prussia to fulfill its obli-

32 The jurists for Prussia refused to accept

gations.
Schmitt's interpretations granting such extensive powers
to the president. Anschuetz and Giese, for example,

argued that the president's actions could be subject to
judicial review and also that Hindenburg did not possess
the power to infringe upon the sovereignty of a state or

to institute a commissar for a state.33

 

32Beck, Prussian Republic, op. cit., pp. 136-138.

33Ibid., p. 139.

 

237

Each of the antagonists in the proceedings launched
detailed charges and counter charges relative to the vari-
ous aspects of the case and each in turn supported and
refuted these with the normal series of evidence and legal
arguments. But the proceedings of the entire trial left
little doubt about the political nature of the case, as
politics kept bursting through the cover of constitutional
issues. The realistic Carl Schmitt had few illusions
about what he considered the most significant aspect of
the trial. He informed his colleagues that "the formal—
ities . . . in this process before the supreme court are

"34 The

no formalities, but very real political matters.
supreme court could, he conceded, serve as the legal
defender of the constitution in a judicial and formal man—
ner. As a political document, however, the constitution
also required political decisions and for this reason the
Reichspresident was designated under Article 48 as the
lawful political defender of the constitution.35
Outwardly the judges did not agree with the polit—
icalization of the process that Schmitt seemed to be sug-
gesting. Nonetheless, the court finally rendered a highly

political decision on the case. Its decisions are often

referred to as "Solomon Decisions" because it split in

 

34Preussen contra Reich, op. cit., p. 466.

 

35Ibid., p. 469.

 

 

238

favor of both parties. As a result the outcome satisfied
neither party entirely and the Prussian situation remained
in a very dubious state. The court reaffirmed its own
right of judicial review of presidential actions, and it
rejected the allegations that Prussia had failed to fulfill
its obligations under paragraph one of Article 48. There-
fore, the Reich had no authority to dismiss the Prussian
cabinet and minister president. But the court ruled in
favor of the Reich's actions in establishing a commissar
for Prussia under paragraph two since there did exist a
serious danger to public order and security. This final
ruling proved decisive. While the Prussian cabinet
returned to office, its authority was in fact only a
facade. The real power in Prussia still resided in the

36 The court had reaf-

hands of Papen and his commissar.
firmed its own role as the legal interpreter of the con-
stitution. Yet, in effect, real political power still
resided with the Reichspresident as Schmitt had claimed.
In the months following the action of July 20 the
German political situation had intensified considerably.
The election of July 31 had shattered Schleicher's plan
for gaining extensive support for the presidential govern-

ment, and Papen had distinguished himself as the most

unpopular chancellor in German history. After the July

 

36Beck, Prussian Republic, op. cit., pp. 143-145.
Bracher, Die Aufloesung, op. cit., pp. 559—563.

 

 

239

setback the alternatives open to the government were dis—
cussed in the cabinet session of August 10. At that meet—
ing Papen outlined the major tasks of the cabinet as a
settling of the issue of Reich-Prussia, reform of voting
rights, the establishment of an Upper House of parliament,
and administrative reform in the Reich and Prussia.37
Schleicher countered this by stating that the real issues
concerned either retaining the present cabinet or in
dealing with the National Socialists and possibly bring—
ing them into the cabinet. If they followed the first
alternative Schleicher saw a possible danger in that a
coalition might be formed between the National Socialists
and the Center Party causing a constitutional crisis. At
that time the leadership of the NSDAP and the Center par—
ties were actively engaged in discussions about organizing
a coalition government; this fact intensified Schleicher's
concern. Dealing with the Nazis was equally difficult
because Hitler would demand a position of leadership. For
this reason Schleicher doubted that the cabinet could reach
any agreement with the Nazis. Gayl agreed with Papen and

rejected any notion of even attempting to negotiate with

the Nazis. He had other goals in mind. So with the

37BA, R-43—I, No. 1309. Kabinettsbildung (1932),
"Auszug aus der Niederschrift ueber die Ministerbesprechung
vom 10. August 1932," pp. 181—185.

 

 

240

chancellor he proposed suspending the Reichstag without
new elections and initiating constitutional reform.

The plans of Gayl and Papen for immediate consti-
tutional revision disturbed Schleicher. He totally dis—
approved of Papen's constitutional experiments during
this period of instability. Schleicher agreed with
Schmitt that these reform proposals contained the danger
of civil war, and he came more and more to disassociate

38 Similar reform plans had

himself from Papen's policies.
been widely promoted by the conservative revolutionary
circles around the Herrenklub and the DNVP. These plans
envisioned a "New State" of an authoritarian nature, with
the Upper House as a check on the Reichstag, and with a
highly restricted system of voting rights. To accomplish
this these groups suggested dissolving the current
Reichstag and revising the constitution in order to create
this "New State" as a replacement for the defunct Weimar
system. Although a frequent guest of the Herrenklub,
Schleicher never took these plans seriously and he con—
tinued to disagree with the Papen-Gayl constitutional

schemes.39

38Thilo Vogelsand, "Zur Politik Schleichers
Gegenueber Der NSDAP 1932," Vierteljahreshefte Fuer
Zeitgeschichte, Jhg. 6, Heft 1 (January, 1958), p. 104.

39Nachlass Schleicher, Militaerarchiv, Freiburg,
No. 42, Bd. 7, "Beziehungen zum 'Deutschen Herrenklub,"
Bracher, Die Aufloesung, op. oip., pp. 471—472. Holborn,
Modern Gefmgnx, op. opp., pp. 699, 702.

 

241

Carl Schmitt had always warned against constitu—
tional experiments during a time of crisis. Such schemes
were completely inconsistent with Schmitt's belief in the
necessity for restoring order and stability before tamper-
ing with the existing order. He recognized the need for
reform, but he saw the first priority as a settlement of
the current crisis. Schmitt feared that reform plans
might become the tools of one or more of Weimar's plural—
istic parties and interest groups.40 More importantly,
he also approached these eventual necessary reforms as a
method of correcting the existing system and not as a
means of establishing a new state. The exceptional powers
of the president, he wrote, ". . . were meant more as cor—
rections to certain abuses of the parliamentary system, and
therefore were meant to save this system, but were not
intended to establish some new kind of state . . . ."41

Whether Schleicher ever read Schmitt's recent book
remains unknown. But undoubtedly he was at least acquainted
with Schmitt's general line of argument. Schleicher's
clOSest aide, Colonel Erich Marcks, had been meeting with
Schmitt socially and on political matters for several

years. Since August Marcks had attempted to popularize

Schmitt's Legalitaet und Legitimitaet, for Schleicher's

 

40Carl Schmitt, Legalitaet und Legitimitaet, p. 97.

4lIbid., p. 89.

 

 

 

 

as”... _W:

242

political cause. Expressing his sincere thanks to
Schmitt for this book, Marcks stated that "in its strict
scientific constructions, its deduction and in the rich—
ness of its content, it is for us an excellent arsenal
in the fight for the future. I know that in popularizing
it for political purposes one cannot do justice to your
thought, but I hope that this political utilization will
not be looked upon by you unsympathetically. Everyone
who actually reads your book will realize, in spite of our
attempts, that it is geared to a different level which is
not a reflection of a momentary political situation."42
Schmitt's writings were receiving a good deal of
publicity throughout 1932, both negative and positive. As
expected his ideas were far more palatable to the right
of the political spectrum than to the left. The conserva—
tive revolutionaries used his ideas, especially concerning
the friend—enemy relationship and the bankruptcy of the
pluralistic party system, in defense of their own cause

while never adopting Schmitt's theories completely.43 The

 

42Erich Marcks to Carl Schmitt, September 6, 1932,
Carl Schmitt—Personal Papers.

43Throughout 1932 Schmitt's ideas appeared con—
stantly in Deutsches Volkstum, and pop Ring. See: Friedrich
Grueter, "Der Rechtsstaat in der Krise," Deutsches Volkstum,
1 Aprilheft (1932), pp. 260~265. Clemens Lang, "Die
Ideologie des Widerstandes. Bemerkungen zu Carl Schmitts
Begriff des Politischen," Deutsches Volkstum, l Dezemberheft
(1932), pp. 959—964. Heinrich Rogge, "Feindschaft als
Lebenselement von Staat und Politik? Eine Staatstheoret—
ische Warnung," pop Ring, Jhg. 5, Heft 2 (January 8, 1932),

 

243

left criticized Schmitt on theoretical grounds and most

harshly for his support of what they called the Papen

44

dictatorship. But even in their worst criticisms and

attacks on Schmitt some members of the left did not hesi—
tate occasionally to put a Schmittian concept in Marxist
terms. Reinhold Aris stated, for example, "what Schmitt
calls pluralism is nothing other than class struggle."45
Both sides referred to Schmitt as the Kronjurist of the
central government. Nonetheless, as we have already noted
his ideas were not the driving force behind events or the
policies of the Papen government. Schmitt simply provided
the vocabulary and jargon utilized in the arguments of
various political factions. The Papen clique would
request Schmitt's advice on specific constitutiOnal ques—

tions, without concerning themselves with Schmitt's

overall analysis and estimation of the political situation.

pp. 16-18. Michael Horst, "Naturrecht, Legalitaet und

das Zentrum," pop Ring, Jhg. 5, Heft 33 (August 12, 1932),
pp. 548—550. Karl Lohmann, "Die Waffe der Legalitaet,"
22E Ring, Jhg. 5, Heft 37 (September 9, 1932), pp. 608—
611. See also: Hans Zehrer, "Revolution oder Restaura—
tion?" poo goo, Jhg. 24, Heft 5 (August 5, 1932),

pp. 353—393.

4Thomas Eck, "Das Volk als Hueter der Verfassung,"
Neue Blaetter fuer Sozialismus, Jhg. 3, Heft 7 (July,
1932), pp. 347-355. Kurt Hiller, "Ewiger Friede in
Gaensefuesschen," Die Weltbuehne, Jhg. 28, No. 40

(October 4, 1932), pp. 498-500.

 

45Reinhold Aris, "Krisis der Verfassung. Die
gegenwaertige Situation," Neue Blaetter fuer Sozialismus,
Jhg. 3, Heft 1 (January, 1932), p. 27.

 

 

 

244

Only with Schleicher and his aides Marcks and Ott, could
Schmitt's political viewpoints have had any direct influ—
ence. The extent of this influence is difficult to estab-
lish, but there did exist a direct parallel between the
ideas of Schmitt and the policies pursued by Schleicher.

A possible Nazi-Center coalition, which Schleicher
had foreseen and brought out in the August 10 cabinet
meeting, still posed a potential threat when the Reichstag
reconvened. Nazis and Centrists alike were hoping to pre—
vent another dissolution order by allowing a coalition
government to function with the confidence of the
Reichstag. But Hindenburg by this time refused to accept
any government dependent solely on the Reichstag and he
decided to retain the presidential system. Under these
circumstances Papen planned immediately to dissolve the
new Reichstag when it failed to support his policies and
then institute his programs for constitutional revision.46
The Nazis perceived Papen's intentions to dissolve the
Reichstag as an effort to deny them the fruits of their
electoral victory and force upon them the burden of
another expensive and exhaustive campaign. At the center
of these conflicting plans was the issue of whether a
cabinet could stay in power after receiving a vote of no

confidence. Party member Dr. Erich Zwade had informed the

 

46Beck, Prussian Republic, op. cit., p. 125.

 

W‘jfiw’ . 1

245

Nazi leadership that "the Reich—government, as is well
known, had requested a Gutachten from the constitutional—
ist Prof. Carl Schmitt concerning whether it must resign
in the event that it receives a vote of no confidence
from the Reichstag. As far as I know," Zwade stated,
"Schmitt has declared the continuation in office, despite

a vote of no confidence, as compatible with the constitu—

tion."47

The Nazis were thus preparing to foil Papen's
plan to dissolve the Reichstag. They joined the Com-
munists in returning a vote of no confidence immediately
at the opening of the first session on September 12,
before Papen could present the dissolution order he had
brought with him already signed by Hindenburg. Consider—
ing the government as already overthrown the Nazis refused
to accept the order of dissolution. Shortly thereafter
the Nazis finally reconciled themselves to the fact that
the Reichstag had been dissolved.

With the expected failure to achieve the support
of the Reichstag Papen moved closer to attaining his goal
of leaving the Reichstag dissolved for an indefinite period
and introducing his constitutional revisions. To post-

pone the elections for more than the sixty days prescribed

in Article 25 would clearly violate the constitution.

47Dr. Erich Zwade to Rosenberg, August 26, 1932,
Rosenberg—Akten, Institut Fuer Zeitgeschichte, Munich,
II, 76, MA-251 (22-23).

 

 

 

246

Still, the general consensus of the cabinet was that sixty
days would hardly be long enough for the government's
programs to have sufficient impact in the economic and
political spheres, so that the people would return a
majority in its favor in the next election. On the ques—
tion of new elections Schleicher agreed that it would be
senseless to schedule new elections which would only lead
to another deadlock and still provide no majority support
for the government's programs. He believed that new elec-
tions could be postponed on the grounds that the welfare
of the nation, the people, and the economy precluded an
election which would not change the existing state of

48 Schleicher's advisor Ott had

political paralysis.
spoken with Carl Schmitt, Jacobi, and Bilfinger on
September 13, the day after the Reichstag was dissolved,
and they agreed that postponement of the elections could

be constitutionally justified.49 This did not contradict
Schmitt's public pronouncements concerning the defense of
the constitution. He had always maintained that the
Reichspresident could, as the defender of the constitution,

temporarily suspend various articles of the constitution

on the grounds of Article 48 provided it was only

48BA, R—43—I, No. 1865, Reichsverfassung (1927—
1930), "Auszug aus der Niederschrift ueber die Minister-

besprechung vom 14. September," (1932), pp. 255—257.

 

 

49Ibid.

 

 

 

 

 

 

 

 

 

247

temporary and done in order to preserve the constitution
as a whole. Until this point in his career Carl Schmitt
had exempted Article 25 from suspension under Article 48,
because the Reichstag was part of the organizational
minimum immune from presidential infringements. Suddenly
Schmitt was willing to allow the postponement of elections
which, according to his own constitutional theory, was not
authorized under Article 48. He had always held as a
basic political belief, however, that no strict formalistic
interpretation of the constitution and no individual con-
stitutional article should be allowed to endanger the con—
tinued existence of the entire constitutional order. And
although Article 48 did not authorize the suspension or
postponement of elections during a state of exception
(Ausnahmezustand), Schmitt did leave open the possibility
for handling such a contingency in a state of emergency
(Staatsnotstand, i.e., an extreme danger to the existence
of the state itself). Staatsnotstand could pertain to
Article 25, "if an extreme case should occur in which
elections are completely impossible or the Reichstag could
no longer be assembled, because the greater part of German
territory was occupied by enemies or for similar extreme
"50

reasons . . . . Apparently Schmitt considered the

current political condition of Germany as an “extreme

 

50Carl Schmitt, Die Diktatur, pp. 246—247. See
also: Carl Schmitt, Politische Theologie, p. 18.

 

248

reason" warranting temporary postponement of the elections.
Schmitt's modified position in this matter did not include
any plans for constitutional reform during the interim in
which the Reichstag did not meet.

Schleicher was also wary of constitutional revi—
sions. In the October 20 cabinet meeting Schleicher
revealed his own plan. After conferring with various
party leaders Schleicher would then convince the Reichs-
president that no possibility existed for a working
majority in the Reichstag, and urge Hindenburg to prevent
the Reichstag from meeting until a viable majority could
be achieved. Schleicher also "requested that the question
of reforming the constitution in the current exceptionally
tense situation be set aside."51 The Schleicher plan, of
course, interfered with the intended schemes of the other
cabinet members, like Papen and Gayl, who wished to seize
the opportunity to declare a state of emergency, intro—
duce a dictatorship for an unspecified time, and accord-
ingly make the needed constitutional revisions.52

Owing to his association with the central govern—
ment, and particularly the publicity surrounding his

service in the case Prussia versus the Reich, Schmitt

aroused distrust in numerous political circles. Certain

 

51BA, R-43—I, No. 1309, Kabinettsbildun (1932),
pp. 331-333. _______g
52

Ibid.

 

 

249

politicians failed to believe Schmitt's public statements
against immediate constitutional reform. In a letter to
Papen the director of the Bavarian ministry of finance,
Schaeffer, confirmed the existence of such suspicion. He
wrote, “yesterday I was informed that Professor Dr. Karl
Schmitt is commissioned to draft a new constitution.
Professor Karl Schmitt as a result of his publication has
become a controversial personality. It would be partic—
ularly doubtful, however, if he in his manner of thinking
shows sympathy for sound federalist ideas. I would there—
fore like to inquire if this rumour is correct and if he

particularly was commissioned as the sole constitutionalist
“53

 

engaged with the draft of a new constitution.
54

Papen
could honestly deny this rumour. For Carl Schmitt was
never involved in or commissioned for such a task,
though he probably would have been elated over the pos—
sibility of being the father of a new constitution once
normality returned.

That the much debated elections took place on

November 6, as required by the constitution, most likely

was due to Hindenburg's desire not to violate his

53Staatsrat Schaeffer, Director of the Bavarian
Finance Ministry, to Chancellor von Papen, September 24,
1932, BA, R—43—I, No. 1865, Reichsverfassung (1927—1933),
PP. 289-290.

54State secretary Planck to Staatsrat Schaeffer,
October 4, 1932, Ibid., pp. 291-293.

 

250

constitutional oath. Hindenburg approached the constitu-
tion in the strict formalistic manner which Schmitt had
opposed. The letter of the constitution had been fulfilled
but the election had not in the least alleviated the paral-
ysis of the Weimar party system. Though suffering losses
in the election the Nazis were still the largest party in
the Reichstag. Their remaining seats combined with the
increased number of Communist seats continued to provide
the extremist parties with the absolute majority.

When the cabinet convened at various times in the
post election period to consider the alternatives open to
the government, Papen and Gayl persisted in their plans
for reform. Schleicher still preferred a more cautious
policy. He feared that instituting constitutional reform
at that time through emergency decrees could lead to civil
war and that the army was inadequate to cope with such a
situation. One of the strongest defenses of Schleicher‘s
approach came from Johannes Popitz, who was Schmitt's
closest friend in Berlin. Popitz had recently been
appointed Reich minister-without-portfolio and served as
an official in the Papen commissarial government in

55 It is interesting to note the triangular

Prussia.
relationship between Popitz, Schmitt and Schleicher. All
three figures were personal and working acquaintances who

Opposed immediate constitutional revision.

 

55Beck, Prussian Republic, op. cit., pp. 155, 165.

 

251

With the impending issue of constitutional revision
and governmental alternatives in mind Schmitt appeared
before a conference of Westphalian industrialists on
November 23. This industrial association had originally
attempted to engage both interior minister Gayl and the
Reich commissar for Prussia Franz Bracht, to speak on
the question of constitutional reform. When the contro—
versial nature of the problem prompted Gayl and Bracht

to refuse that invitation, the association called upon

56 Under these

Carl Schmitt to deliver the main lecture.
circumstances Schmitt surely surprised his audience as

he proceeded to speak against immediate constitutional
reform.

Schmitt placed the blame for the incessant crisis
directly upon political parties and the Reichstag. The
Weimar party state Schmitt defined as a "Quantitative
Total State," because it interfered in every aspect of
life as it was pressured to do so by one interest group

or another. Submission to this pressure proved that Weimar

was a weak state rather than a strong one.57 A few

 

56Dr. M. Schlenker to Dr. Paul Silverberg,
November 15, 1932, BA, Nachlass Dr. Paul Silverberg,
No. 417, Bd. 5 (1932—1933), "VerEIn zur Wahrung der
gemeinsamen wirtschaftlichen Interessen in Rheinland und
Westfalen, Duesseldorf (Langnamverein), Allgemeine
Schriftwechsel und Einladungen."

57Carl Schmitt, "Gesunde Wirtschaft im starken
Staat," Mitteilungen des Vereins zur Wahrung der gemein—
samen wirtschaftlichen Interessen in Rheinland und

 

252

powerful political organizations had a monopoly of control
over the masses, each organization represented a special
interest and none represented the entire nation. "Five
organized inimical systems, each of which in and of itself
is total, stand next to each other and between which the
people are supposed to decide five times in one year."58
Without the Reichspresident and his cabinet the country
would have already lapsed into complete chaos. The solu—
tion to the crisis should therefore come from the Reich
government and not from the parties. "We need first of
all," Schmitt said, "a strong viable state equal to its
great problems. When we have that then we can create new
organizations, new institutions, new constitutions. In my
opinion, it is high time and we no longer have many pos-
sibilities, also no longer much latitude for great con-
stitutional experiments . . . . I believe, therefore,
that it is better first of all not to establish authority
through new institutions . . . . (Instead) the government
should utilize all constitutional means, but all consti-
tutional means, which stand at its disposal . . . ."59

Only when the government restored order and stability

should plans for constitutional revision be pursued,

 

Westfalen," Jhg. 1932, No. 1, Heft 21 (November 23, 1932),
PP. 16—18, Nachlass Silverberg.

58Ibid., pp. 19—20.

59Ibid., pp- 30-31.

 

253

otherwise the crisis would only be aggravated. Meanwhile,
Germany would have a strong economy only within the con—
fines of a strong state.

A great force in opposition to violating or sus—
pending articles of the constitution was the Catholic
Center Party. Schmitt had closely associated himself with
the Centrist position throughout most of the twenties,
but gradually became alienated from it and its formalistic
literal interpretation of the constitution. The Center
viewed itself as a strict constitutional party. Support—
ing a strong central government the Center at the same
time refused to violate the letter of the constitution.60
In the fall of 1932 the Center Party wanted a return to
parliamentary government in conjunction with the presi—
dential system. The leadership of the party, including
Bruening and Prelate Kaas, believed this could only be
accomplished by a coalition with the National Socialists,

with whom they had negotiated for months.61

At a meeting
of November 18, Kaas informed Hindenburg of the Center
Party designs. Their goal was to achieve a “national

concentration" of parties in support of an "authoritarian

6ODetlef Junker, Die Deutsche Zentrumspartei und
Hitler 1932/33: Ein Beitrag zur Problematik des politischen
Katholizismus 12 Deutschland (Stuttgart, 1969), pp. 88,
232.

 

61Becker, "Bruening, Praelat Kaas," op. cit.,

p. 111.

 

254

government" without violating the constitution. So long
as no one violated the constitution the Center was pre-
pared to back any of the President's policies. Using
Schmitt's terminology Kaas told the Reichspresident that
the Center Party ". . . sees in you the most conscientious
Hueter opp Verfassung."62 Basically the Reichspresident
and the Center agreed that the constitution must not be
violated. Both viewed the constitution, to Carl Schmitt's
dismay, in terms of a functional, value-neutral legality,
according to which every article of the constitution was
sacrosanct, each group had the equal chance to achieve
power, and a legal government must have the support of 51
per cent of the Reichstag. But the needed legal major-
ity could only be formed with the participation of the
Nazis, and Hitler insisted on the chancellorship. Harbor-
ing a disdain for the Nazis and a sincere desire not to
violate the constitution, Hindenburg rejected both the
Centrist plan and the Papen scheme for constitutional
reform.

Instead, Hindenburg opted for Schleicher‘s proposal
of gaining the support or at least the toleration of the
labor unions, the SPD, and the bourgeois parties.

Schleicher also hoped to split the NSDAP in order to

 

62"Aufzeichnung ueber die Besprechung des Herrn
Reichspraesidenten mit dem Fuehrer der Zentrumspartei,
Praelat Kaas, am 18. November 1932, nachmittags 6 Uhr,"
Nachlass Schleicher, No. 31, p. 2.

 

 

 

255

acquire the cooperation of the Strasser faction.63

On
December 3, Hindenburg appointed Schleicher as chancellor
to succeed Papen. It appeared that Carl Schmitt, as an
adviser to Schleicher, might play an even more significant
role in ending the political crisis. Along with programs
for economic recovery Schleicher followed a policy of
conciliation. When the new Reichstag, for example, voted
to revoke certain emergency decrees Schleicher complied
by suspending more than those requested. But the new
chancellor's hopes and plans were never to materialize.
He could neither split the NSDAP nor gain the toleration
of the left.

By January 1933 Papen had commenced plotting with
Hitler against Schleicher. With the threat of a Papen-
Hitler cabinet and the failure of his own plans, Schleicher
concluded by January 23, that the situation demanded
declaring a state of emergency. He requested that
Hindenburg initiate another dissolution of the Reichstag,
postpone elections, and under Article 48 issue a ban on
the Communist and the Nazi parties. Had Hindenburg com—
plied with this request he would have fulfilled Carl
Schmitt's notion of the defender of the constitution and

denied the "equal chance" to unconstitutional parties.

Schleicher was the only leader in a position to prevent

 

63Bracher, Die Aufloesung, op. cit., p. 589.

 

 

256

the Nazi acquisition of power, if the Reichspresident had
only granted him this authorization.64 Having lost faith
in Schleicher, fearing civil war, and trying to avoid
violating his oath to uphold the constitution, Hindenburg
refused. Consequently, Hitler acquired power not through
the use of Article 48, but because it was not utilized
against him.65
Also fearing a violation of the letter of the
constitution, Prelate Kaas wrote to Schleicher on January
26, warning him against ". . . the entire basic tendencies
of Carl Schmitt and his followers to relativize consti—
tutional law . . . ."66 The postponement of new elections,
he pointed out, would be a direct violation of the consti—
tution. An illegal and unconstitutional state of emer-
gency was not the solution. The proper course lay rather
with a return to constitutionally sanctioned governing
coalitions. The fact that such a return to parliamentary

government might bring the Nazis to power remained hidden

behind the Center's strict formalistic approach to the

64Theodor Eschenburg, "Die Rolle Der Persoenlich-
keit in der Krise der Weimarer Republik: Hindenburg,
Bruening, Groener, Schleicher," Vierteljahreshefte Fuer
Zeitgeschichte, Jhg. 9, Heft 1 (January, 1961), p. 27.

 

 

65Junker, Deutsche Zentrumspartei, op. cit.,
PP. 70-71. _*‘
66

Prelate Kaas to Chancellor Schleicher, January 26
1933, BA, R-43—I, No. 1865, Reichsverfassung (1927—1933),
PP. 403-405. —“‘_—"

I

 

257

constitution, and the illusions it held about possible
cooperation with the National Socialists. Kaas sent a
copy of this letter to Hindenburg, and later printed it
on the front page of the Centrist paper Germania on

January 29, along with the announcement of Schleicher's

resignation.67

The resignation of Schleicher on the 28th of
January had a disillusioning effect on Carl Schmitt. He
had been the friend and advisor of Schleicher, whom he
supported from the beginning of the presidential system.
Schmitt had met with Schleicher's aide Colonel Marcks on
the 27th and was then informed Schleicher would have to

resign and that either Papen or Hitler would receive the

68

chancellorship. Reminiscing in later life Schmitt

described his immediate reaction to that news. "I was
eliminated from the race," Schmitt noted, "in so far as I

was ever really in the race as a behind the scenes

"69

advisor. Then the Kaas letter appeared publicly on

the 29th and Schmitt was undecided as to whether he

67"Kaas warnt vor Illegalitaet: Ein Schreiben an
Schleicher und Hindenburg," Germania, Jhg. 3, No. 29
(January 29, 1933).

68

Carl Schmitt, "Zeitgenossen, op. opp.

69Interview by Ansgar Skriver with Carl Schmitt,
in "Hitlers Machtergreifung vor 40 Jahren im Gedaechtnis
von heute: Eine zeitgeschichtliche Befragung," West~
deutscher Rundfunk, Hauptabteilung Politik, second
PrOgram, 8:45 p.m., January 30, 1973, p. 13.

 

258

should vindicate himself. Popitz tried to dissuade
Schmitt from responding to the letter, but he finally

7° Schmitt's

decided to retort to Kaas' accusations.
diary contains the following notation for January 30:
"In the morning I went to Frau Abel in order to write a

letter to Kaas."71

Copies of the letter were drafted
and sent to Hindenburg and Papen, who was then acting on
behalf of the Reichspresident.

In his retort Schmitt challenged Kaas' warning
against the illegality of his constitutional interpre—
tations. Schmitt replied that "one would find in none
of my publications and in no authentic verbal remark
even one phrase which could justify such diminishing of
my constitutional teaching. My constitutional expositions
are entirely concerned with the attempt to convey recog—
nition of the meaning and consequence of the German con—
stitution, without regard to the changing party interests,
and to oppose degrading it to a tactical instrument and
tool. I do not relativize constitutional law, but struggle

against a misuse which destroys state and constitution,

against the instrumentalizing of the concept of legality

 

7°Ibid.

 

71Carl Schmitt Personal Diary, as cited in
Skriver, "Hitlers Machtergreifung," op. cit., p. 11.

 

 

259

and against a value and reality neutral functionalism."72

The two significant points for Schmitt were the value
neutral functionalism, represented by the strictly legal
interpretation of the constitution practiced by the Center
and Hindenburg, and the use of this legality by the Nazis
as an instrument for the acquisition of power. The final
result would be, as Schmitt had predicted, the destruction
of the very legal system and constitution Kaas had feared
violating. The Center Party soon recognized its mistake.
Later in the Center Party discussions over the Enabling
Act, Bruening, who did not favor this act, said he sup—
ported the election of Hindenburg because "Hindenburg was
the guarantor and trustee of the constitution. Now there

exists the greatest dangers to the entire constitution
"73

After dictating this letter Schmitt went to the
cafe Kutschera where he first heard that Hitler had been
appointed chancellor. Schmitt noted in his diary that
he was "irritated and yet somehow relieved: at least a

decision." While that evening the victorious Nazis staged

 

72Carl Schmitt to Prelate Kaas, January 30, 1933,
BA, R-53, Stellvertreter des Reichskanzlers Vizekanzlei

goo Papen, Bd. 77, pp. 136-137.

73Protokollentwurf ueber 922 Sitzung opp Zentrums-
fraktion des Reichstags vom 2;. 2' 1933 (Entwurf betr. das
Ermaechtigfifigsgesetz mit—Efklaerung des damaligen Schrift-
fuehrers der Fraktion Jean Albert Schwarz vom 8. 6. 53,

BA, Kleine Erwerbung, No. 44, pp. 2-4.

 

 

260

a seven hour torchlight parade through the Brandenburg
gate, Schmitt remained retired at home. Wilhelm Stapel
paid him a visit and they discussed Prussia over a bottle
of red wine. Although an anti-semite and advocate of the
"New State," Stapel had opposed the appointment of Hitler.
Now disappointed with events, Stapel told Schmitt that

74

"Hindenburg is for him no Prussian." Schmitt reacted

philosophically and had the feeling that something had

come to an end. It was the suicide of the Weimar system.75
Schmitt was already preparing to leave Berlin. On

April 1, 1933 he was scheduled to accept the chair of

public law at the University of Cologne vacated by the

death of Stier-Somlo. A myth about Schmitt's departure

from the Handelshochschule has been perpetuated by

Moritz J. Bonn. According to Bonn, Schmitt decided to

leave Berlin a few weeks before Hitler's appointment as

chancellor because he no longer held similar political

76

viewpoints to the liberal minded Bonn. The fact of the

matter was that though they were personal friends, Bonn
and Schmitt were never politically compatible. And
Schmitt's decision to leave Berlin was neither political

nor a quick decision made in December.

 

74Carl Schmitt Personal Diary, as cited in Skriver,
"Hitlers Machtergreifung,“ op. cit., p. 12.

751bid., p. 18.

 

76Bonn, §o_Macht Man, op. cit., p. 331.

 

 

261

As early as April 1932 the Cologne law faculty had

attempted to attract Schmitt to their university.77

Schmitt was actually offered the chair on August 6, 1932,
and this was followed by a constant campaign among law
faculty members, including extensive and cordial entice—

ment by Schmitt's old opponent Hans Kelsen, urging him to

78

accept this position. M. J. Bonn was already trying to

hold Schmitt in Berlin as early as August and he knew that

Schmitt's attraction to Cologne was actually motivated by

79

other factors than politics. To leave the business

school for a position at the University of Cologne would
have been temptation enough for any professor. In addi—
tion, in October the Reichcommissar for Prussia had removed
the Handelshochschule from the jurisdiction of the Ministry
of Culture. For Bonn this signified "the end of the
Handels—Hochschule," as he felt it would no longer be

sufficiently funded to keep prominent full professors, and

77Professor Nipperdey to Professor Eckhardt,
April 7, 1932, Carl Schmitt-Personal Papers.

78Professor Windelband, Ministerialrat in Prussian
Ministry for Science, Art and Education, to Carl Schmitt,
August 2, 1932. Professor Nipperdey to Carl Schmitt,
August 11, 1932. Professor Heinrich Lehmann to Carl
Schmitt, August 12, 1932. Hans Kelsen to Carl Schmitt,
September 3, 1932, September 7, 1932, October 7, 1932.
Carl Schmitt-Personal Papers.

79Carl Schmitt to Moritz Julius Bonn, August 20,
1932. Moritz Julius Bonn to Carl Schmitt, September 5,
1932. Moritz Julius Bonn to Carl Schmitt, October 5, 1932.
Nachlass Bonn, BA, No. 56.

 

 

262

that they would then be replaced by “poorly paid, young
Dozenten from the provincial universities." Bonn's real
interest in keeping Schmitt in Berlin was to prevent the
flight of these full professors and to protect the pres-
tige of his own institution. Bonn also knew that Schmitt
was informed that if he went to Cologne he would later be
called to the University of Berlin, and that offer
actually materialized in the fall of 1933.80 Such a
prestigious future promotion Schmitt was not about to
overlook. Understandably Schmitt accepted his call to
Cologne on December 6. Had this been a political decision
Schmitt would certainly have elected to stay in Berlin.
On December 2, Schleicher, whom Schmitt served as a
political advisor, was appointed chancellor. If Schmitt
ever had any real political influence it was then at its
peak and for political reasons he would certainly have
desired to stay near the center of power in Berlin.

The years Schmitt spent in Berlin were full of
political activity and excitement. He had been in the
very midst of the political controversies leading up to
the final demise of the Weimar Republic, and he received

a great deal of public attention and criticism as the

Kronjurist of the presidential system. Schmitt was never

 

the moving force behind the presidential system. The

 

80Secret Memorandum, Moritz Julius Bonn, October
28, 1932, Ibid.

 

 

 

263

political leaders used his ideas in defense of their own
plans and disregarded his advice and ideas when they did
not coincide with their schemes. Schmitt was well

informed of most developments but always remained a
secondary figure, an intellectual trying unsuccessfully to
have an impact on political events. He actually thought
that his writings and counsel would have the effect he
desired. He came closest to this goal with Schleicher's
efforts to stop the National Socialists. In the final
analysis his political and legal ideas failed significantly
to alter political developments, and whatever influence he
might have had ended with the fall of Schleicher. With
the final failure of the presidential system and the
appointment of Hitler, Schmitt felt that his excursion
into the political arena had ended and that the Reich

government would no longer require his services. While
making preparations to move from Berlin to Cologne
Schmitt had no indication that the end of one political
career would be the beginning of another. The next few
months would bring him once again into the political and

public limelight as the Kronjurist of the Third Reich.

 

CHAPTER VII

THE KRONJURIST OF NATIONAL SOCIALISM,
1933-1936

The first few months of 1933 found Carl Schmitt in
a similar predicament to that of 1919. Once again he
experienced an abrupt change from one legal and political
order to a new order whose precise nature and future course
remained uncertain. He had always viewed the Nazis with
the same apprehension that he did the Communists. In 1919
he wondered how far the Communists and Socialists would
succeed in destroying the institutions of the Second Reich
and in instituting the dictatorship of the proletariat.
The National Socialists now presented a similar problem
concerning the extent of their success in destroying Weimar
institutions and establishing the dictatorship of the
party. There were, however, a few significant exceptions
with regard to the National Socialists. Schmitt could,
for instance, at least display approval of many of the
nationalist aspects of the Nazi movement, such as their
opposition to the Versailles Treaty. Their ability to
attract the support of more than a third of the German
people also captured his interest. More important, in

the months immediately following January 30, Schmitt

264

 

265

still felt somewhat reassured by Hindenburg's power to dis—
miss Hitler if the need arose. Nevertheless, Schmitt‘s
anxiety about Nazi extremism, especially now that they
controlled the state apparatus, left him with the same
feeling of bewilderment about Germany's future that had
overwhelmed him in the early stages of the Weimar
Republic.

Schmitt's fear that an anti-constitutional party
might acquire legal control of the state was now a reality.
Yet, in these first months of 1933 Schmitt, like most
Germans, harbored doubts about how far the Nazis would
succeed in destroying the Weimar constitution and state,
and in introducing a new order. At first he believed the
Reichspresident and the army might be able to hold Hitler
in check. Early in February he told Ferdinand Hermens
that Schleicher and the army would do everything possible
to bring about an end to the Nazi adventure. It was the
purpose of civilians, Schmitt said, to propose solutions
to Germany's economic, political, and constitutional prob-
lems; and he stood prepared to direct his own attention to

these ends.1

But by spring Schmitt had abandoned any hope
Of controlling the Nazis. He joined the party, began

aiding the National Socialists in instituting their

lFerdinand Hermens, Zwischen Politik und Vernunft:
Gesammelte Aufsaetze aus drei Welten (Berlin, 1969),
PP. 158—159.

 

 

266

policy of Gleichschaltung, and for the next four years he
appeared to play the role of Kronjurist of the Third
Reich.

Carl Schmitt's sudden change of attitude towards
the Nazis is one of the most perplexing historical prob—
lems surrounding the man. No single factor alone accounts
for the ability of the author of a work on the defender
of the constitution so quickly to transfer his allegiance
to the usurper of that constitution. Neither opportunism
for personal gain nor compatibility with the Nazi ideology
suffices to explain Schmitt's National Socialist career.
Instead, the reasons for Schmitt's collaboration with
the Nazis lie in a labyrinth of personal and situational
involvements closely intertwined with his basic political
and intellectual philosophy. Through a rapid series of
events early in 1933 Schmitt became thoroughly involved
with the Nazi state.

Decisive for Schmitt's change of direction was
the Enabling Act of March 24, 1933. Under this act
Hitler received almost absolute dictatorial power over
Germany. Laws could now be decreed not only by the
Reichstag but by the government itself, and these laws

could deviate from the constitution.2 For Schmitt the

 

2"Gesetz zur Behebung der Not von Volk und Reich.

Vom 24. Maerz 1933," Reichsgesetzblatt, Teil I, No. 25
(March 24, 1933), p. 141.

267

Enabling Act marked the beginning of the end of the Weimar
system, and the genesis of a new legal and political order.
Now the Nazi party had legal and dictatorial control which
it could use as a basis for instituting whatever form of
political and legal order it desired. Because the consti—
tution itself was never officially eliminated many

Germans continued to hope that some legal restrictions on
the Nazis still existed. The political realism of Carl
Schmitt allowed no room for such optimism, although he

also had underestimated the extremism and dynamism of the
movement. Schmitt, along with several other conserva-
tives, thought that the Reichspresident could act as a
restraint on the Nazis. Hindenburg still maintained his
emergency powers under Article 48, his supreme command of
the army, and the right to appoint and dismiss the chan-
cellor. Aside from these political restraints inherent in
the power of the Reichspresident, however, Schmitt real-
istically foresaw the coming of wide ranging changes. He
presented this realistic appraisal in an article wherein

he lifted the veil of legality hiding the true implica-

tions of the Enabling Act. That act, Schmitt informed his
colleagues, represented "the victory of the National

Revolution," which was equivalent in impact to the

 

268

revolution of 1918, and "in reality is the provisional
constitution of the German Revolution."

With this article began Schmitt's conciliatory
attitude towards the Nazis. The previous reservations he
had about immediate constitutional revision seemed unim-
portant in light of recent events; he now accepted such
reform as a major goal of the new government.4 An extreme
critic of the pluralistic Weimar party state, Schmitt had
reconciled himself after 1929 to the fact that political
and constitutional changes were required. But he had
feared that constitutional changes under the presidential
system before a settlement of the political crisis would
have led to civil war. Now the Nazis, one of the major
parties to such a potential conflict, controlled the
government, held a legal mandate after the March 5, elec—
tions, and were sufficiently strong under the Enabling Act
decisively to solve these problems. The Nazis were already
eliminating their opposition and were then in the process
of instituting their policy of Gleichschaltung in order to
gain control over the state governments. While still dis—

trusting and disapproving of the Nazis Schmitt had to

 

3Carl Schmitt, "Das Gesetz zur Behebung der Not von
Volk und Reich," Deutsche Juristen-Zeitung, Jhg. 38, Heft 7
(April 1, 1933), pp. 455—458; and Carl Schmitt Das

Reichsstatthaltergesetz (Berlin, 1933), p. 9.

4"Das Gesetz," Ibid., p. 457.

 

269

adjust himself to the reality that they were now the
dominant force in German politics.

Subsequently, Schmitt underwent a process of
reevaluating his own position and debated within himself
what part he as a constitutionalist should play in coming
political and constitutional developments. One obstacle
to Schmitt's having any role in these developments was
his previous association with Schleicher and his opposi-
tion to the National Socialists. Schmitt had no prior
contact with the Nazis and at this time he was still an
outsider with far fewer possibilities of influencing
politics than he had under the presidential system. In
spite of these disadvantages a series of events brought
Schmitt step by step into the service of the National
Socialists. And the Nazis showed an unusual willingness
to overlook temporarily his past and to utilize his pres-
tigious name in support of their consolidation of power.

Of immediate importance to the Nazis was how to
force the state governments to comply with Reich policies
and gain complete control over these state governments.

To achieve this goal they passed a law for the coordina-
tion of the states with the Reich on March 31. All state
governments, except Prussia's, were dissolved and recon—
structed without elections. These Nazi controlled govern—
ments could now deviate from their state constitutions

and pass laws without the consent of their legislative

 

 

 

270

bodies. Desiring additional assurances that their
policies would be complied with, the Nazis went one step
further. In the cabinet meeting of March 31, it was
decided that a new law should immediately be introduced to
give the Nazi central government absolute control over

the state governments.

Vice-chancellor Papen moved quickly to establish a
commission to settle this affair. On that same day Papen
wrote to Schmitt requesting the jurist to report to him
for the first committee meeting on April 1.6 That meeting
paved the way for Schmitt's first stage of cooperation
with the Nazi government. He was selected for this task
by Papen and complied with this directive for several
reasons. First of all Schmitt was obeying the legally
constituted state authority in Germany. Just as he had
transferred his loyalty in 1919 from the Second Reich to
the Weimar Republic, he now accepted the Nazi revolution
as the beginning of a new legal order. Also, Schmitt had

a familiarity with the nature of the problem from his

experience with the case of Prussia versus the Reich,

 

5Martin Broszat, Der Staat Hitlers: Grundlegung
und Entwicklung seiner inneren Verfassung (Munich, 1969),
PP. 143—144.

 

6Papen to Carl Schmitt, March 31, 1933, BA,
R-S3, Stellvertreter des Reichskanzlers Vizekanzlei von
Papen, No. 77; and BAT—R-43—II, Reichskanzlei (1933—___
1945), No. 1309, "Gleichschaltung der Laender mit dem

Reich."

 

271

and he did favor the cause of the central government.

Papen and Schmitt had already met on February 16, allegedly
to discuss Schmitt's retort to Kaas' letter.7 Undoubtedly,
the question of Prussia came up during their discussions
since on February 6th, Papen had defied the supreme court
decision, replaced Braun as the Prussian minister presi—
dent, and dissolved the Landtag. Papen quite naturally
again relied upon Schmitt's talents. Carl Schmitt
accepted this opportunity once more to play an active role
in politics and to complete the work he started the year
before in seeking to solve the Prussian problem. Equally
important in Schmitt's decision to comply with Papen's
request was his friendship with Johannes Popitz. In addi—
tion to minister of the interior Frick, Popitz was the
only other member of this special committee. Where Popitz
previously brought Schmitt into contact with the
Schleicher clique he now acted as the agent in bringing
Schmitt into contact with Nazi circles.

The so—called Reichsstatthaltergesetz was quickly
composed by this small commission and passed by the
government on April 7. Under this law the chancellor
could empower a personal representative, or Reichs—

statthalter, to supervise the administration of state

 

 

7Papen to Carl Schmitt, February 13, 1933, and
Carl Schmitt to Papen, February 14, 1933, BA, R-53, No. 77,
pp. 138-139.

 

272

governments so as to assure compliance with Reich policies.
In writing this law Schmitt thought of himself as acting

on behalf of the German state and the Reich rather than

as providing a service for the Nazi party. He had finally
achieved his longstanding goal of a strong central govern—
ment unhampered by federal and particularistic domestic

8 But his cooperation was no longer an extension

strife.
of his previous activity in the case against Prussia. He
was actually aiding in the Nazi consolidation of power and
its elimination of resistance. Not only had he placed

his talents at the disposal of the Nazis but he gave addi—
tional credibility to the regime by associating his own
prestige and respect with its activities. He had committed
the sin of political romanticism.

Schmitt saw the Nazis gradually establishing abso—
lute control over Germany and in the process of removing
their opponents from political, academic, and bureau-
cratic positions throughout the country. The Nazis had
instituted the Law for the Restoration of a Professional
Civil Service on April 7, 1933. That law removed the
constitutional rights of civil servants, including tenure
for university professors, and allowed for the legal

purging of educational institutions. Schmitt knew that

his own position as a prominent professor of

 

8Carl Schmitt, Das Reichsstatthaltergesetz, op,
Cit., pp. 3, 8—9.

 

 

 

273

constitutional and public law was in no way immune from
these measures, particularly when one considered his past
opposition to the Nazis. Prominent law professors such
as Radbruch, Bonn, Cohn, Heller, Kantorowicz, and Kelsen
from Schmitt's own faculty at Cologne, were being

9 Before the Nazis finished their purges over

released.
1,500 professors would be released. Adding to the prob-
lem, the rather large and highly active body of Nazis in
the student community waged, in the early spring, an
extensive campaign of disruption and boycotts against
Jewish, liberal, socialist, and non-cooperative profes-
sors. The personal decisions facing Schmitt in these
uncertain times were the most difficult he would ever
encounter. Resistance to the legally constituted authority
was incompatible with Schmitt's style and political
philosophy, and completely out of the question due to the
legal and dictatorial power the Nazis then exercised.
Emigration at this stage of his life would have brought
Schmitt as much uncertainty and hardship as the loss of
his academic position. He had reached the peak of his
career and not many Germans, with so much to lose, left

their academic posts willingly. The uncertainties of an

unknown future, and concern for personal and family welfare

9"Personalien," Deutsche Juristen-Zeitung, Jhg. 38,
Heft 9, (May 1, 1933), p. 613, Heft 10, (May 15, 1933),
pp. 678—679.

 

 

274

greatly influenced the decisions of many individuals in
the early stages of the Nazi regime. Like many of these
Germans Schmitt took a wait and see attitude. Furthermore,
the Hobbesian relationship of protection and obedience had
always been a basic principle of Schmitt's political
philosophy. When the Weimar legal system could no longer
protect him, Schmitt no longer felt obligated to support

it, and he transferred his obedience to the new regime as
long as it granted him protection.10
The coercion, boycotts, and reprisals against pro-
fessors were accompanied by a rapid accommodation and even
some enthusiasm for the new regime within the universities.
Early in March hundreds of university professors, with
hundreds still to follow in the next few months, showed

their public support to the Nazis. By the end of April

even the prestigious professorial association, The

11 The

University League, came to terms with the regime.
general trend in the universities was definitely running
in favor of the National Socialists. Literally hundreds

of thousands of individuals throughout German society

flocked to join the party, motivated by opportunism, fear,

 

10Carl Schmitt, Ex Captivitate Salus: Erfahrungen
der Zeit 1945/47 (Cologne, 1950), pp. 20—21.

llKarl Dietrich Bracher, "Die Gleichschaltung
der deutschen Universitaet," in Nationalsozialismus

Und Die Deutsche Universitaet (Berlin, 19665, p. 132.

 

 

 

275

and sincere enthusiasm. Reinforcing this trend were the
pronouncements of certain prominent intellectuals in
support of the new regime. One such thinker rallying
early to the Nazi cause was the existentialist philosopher
Martin Heidegger. In a letter to Schmitt on April 22,
1933 Heidegger urged Schmitt to work with the Nazis and
stated, ". . . I am hoping for your non—obligatory col—

12

laboration." By this time Schmitt's close friend

Johannes Popitz had already made his accommodation with
the regime by accepting his recent appointment as Prussian
finance minister in Hermann Goering's cabinet. Two of
Schmitt's most promising and later prominent law students,
Ernst Rudolf Huber and Ernst Forsthoff, were even profit-
ing by the university purges. Forsthoff replaced Hermann
Heller at the University of Frankfurt and Huber replaced
Schuecking in Kiel.13

With this turn of events Schmitt made his decision
to join the Nazi party. Since the Enabling Act he had

debated within himself and discussed with his friends the

course of action he personally and as a professor of

12Martin Heidegger to Carl Schmitt, April 22,
1933, Carl Schmitt-Personal Papers.

13"Personalien," Deutsche Juristen—Zeitung,
Jhg. 38, Heft 10 (May 15, 1933). p. 679.

 

276

14 On May 1,

constitutional and public law should take.
1993 Carl Schmitt joined the Nazi party in Cologne. His

party number of 2,098,860 attested to the fact that since
January over a million Germans had joined the party before

Schmitt decided to follow.15

Nationalism, anti—liberalism,
the strong leadership principle, and the replacement of

the pluralistic Weimar system with a strong, centrally
controlled state with the goal of alleviating the internal
struggles then plaguing Germany, all aided in making the
new regime palatable to Carl Schmitt. Nonetheless,

Schmitt had held these positions before the Nazi acquisi—
tion of power and had still opposed the National Socialists.
He could have opted for continuing to foster similar con—
cepts without joining the party, follow the path he had
pursued throughout the Weimar period, and stay aloof from
direct activity in party politics. Decisive in Schmitt‘s
entry into the party was concern for his personal welfare
and his academic position, combined with a naive belief

that he could work with the Nazis. His entry into the

party was a show of loyalty to the new regime, which he

 

l4Carl Schmitt, "Beantwortung des Vorwurfs: Sie
haben an der Vorbereitung des Angriffskrieges und der
damit verbundenen Straftaten an entscheidender Stelle
mitgewirkt," (Nuremberg, April 20, 1947), Carl Schmitt-
Personal Papers, 11, p. 3.

15Personal File Carl Schmitt, “Party Records Gau
Koeln-Aechen," and "Nazi Party Records Central Munich,“
Document Center Berlin.

 

 

 

277

felt would tolerate nothing less than total allegiance and
he hoped that this would help assure his personal and pro—
fessional welfare. At the same time he naively thought
that he might be able to influence the development of con—
stitutional and legal matters in the Third Reich. In this
respect he assumed he was following in the footsteps of
figures like Popitz and Heidegger.

After joining the party Schmitt commenced immedi—
ately supporting the new regime through a series of arti-
cles in which he presented certain of his own concepts
which were applicable to the current situation. As the
Nazi policy of Gleichschaltung proceeded in the spring
and early summer of 1933 with the elimination of other
political parties, Schmitt hailed the one—party state as
the state of the twentieth-century. Schmitt criticized
Weimar as a nineteenth-century pluralistic state which
tore the nation apart. Gleichschaltung was only a means
to achieving the homogeneity and unity of the German
people and was a sign that the Germans were learning to

16

distinguish the friend from the enemy. The friend—enemy

concept was not racial, and Schmitt viewed it purely from

a political standpoint and as a prerequisite to the

16Carl Schmitt, "Das gute Recht der deutschen
Revolution," Westdeutscher Beobachter, Jhg. 9, No. 108
(May 12, 1933), pp. 1-2, and "Der Staat des 20.
Jahrhunderts," Westdeutscher Beobachter, Jhg. 9, No. 151
(June 28, 1933), PP. 1—2.

 

 

278

internal unity of Germany. What he actually had in mind
was the elimination of pockets of political resistance
to the state.

Schmitt, of course, was enlightened enough to
realize that the Nazis were considering Jews as enemies
of the state merely on racial grounds. So he was probably
aware that this friend—enemy terminology might also be
misused as a convenient rationale for coercive measures
against German Jews; but at this time that was certainly
not his intention. In fact, he would not address the
Jewish question for two years, and even then none of the
anti-semitic rhetoric contained in a few articles he pub—
lished in 1935-36 was racially based. Although in the
fall of 1933 he did begin to insert a few occasional
phrases about race into his works, he would never succumb
to a belief in the biological racism characteristic of
the National Socialist ideology. These first early
remarks about race, so irrelevant to the content of his
works and so artificially placed within the text of his
writings, reveal his obvious purpose. Schmitt wanted to
show himself in tune with the new regime by spouting the
Nazi cant then coming into vogue.

Carl Schmitt would never have the influence in the
constitutional developments of the Third Reich that he
desired. Despite his party offices, titles, including

that of Kronjurist, his prolific publications in support

 

 

279

of the regime, and his attempts at providing the Nazis

with theoretical foundations, he would never be more than

a figurehead. His only real influence was that he assisted
the rapid Nazi consolidation of power and added credibility
to the future acts of the regime. In consolidating their
control the Nazis were quite willing to have the backing
of such a prominent figure. After his entry into the
party Schmitt immediately became the subject of a long
article in the Cologne Nazi organ Westdeutscher Beobachter.
Lauding his opposition to the Weimar Republic the paper
hailed Schmitt as "the most renowned national constitu—
tionalist in Germany."17 While the Nazis made these
occasional uses of Schmitt's reputation his position
within the party would always remain doubtful and suspect.
Many important party members objected to his status as a
late comer to the Nazi cause, or a "March-violet" as

they were called by the old fighters within the party,

and they expressed jealousy and suspicion concerning his
brilliance and intelligence. Some remembered that he had
never supported the Nazis and, in fact, had opposed the
movement during its desperate years of struggle. They

knew Schmitt had never fully accepted their ideology and

that even his later anti—semitic utterances lacked the

 

17“Der grosse nationale Staatsrechtslehrer Pro—
fessor Dr. Carl Schmitt an die Koelner Universitaet
berufen," Westdeutscher Beobachter, Jhg. 9, No. 107
(May 11, 1933), p. 3.

 

280

proper racial foundations. Most significant of all the
Nazis neither desired nor needed anything other than
Schmitt's reputation for their cause. They had their own
ideology and plans for its institutionalization. They
resented the interference by intellectuals who presented
new or varying theories, and more so if such prominent
intellectuals like Carl Schmitt threatened to overshadow
the second-rate theories of established party members. By
the time Schmitt realized that this was the case his own
life and work was intimately interconnected with the Nazi
regime.

If party membership and a few treatises supporting
the new regime constituted the limit of Schmitt's col—
laboration his National Socialist career would hardly be
a subject for such critical attention. But Schmitt
throughout 1933 continued becoming more and more involved
with the Nazi state. Until this time Schmitt had had no
contact with the Nazi leadership. Then Johannes Popitz,
Goering's finance minister, brought Schmitt into direct
association and cooperation with Nazi circles and insti—
tutions. Without this personal connection with Popitz
it is doubtful that Schmitt ever would have entered into

the inner Nazi circles and played the role of figurehead

Kronjurist.

 

The first possibility for such contact came with

Goering‘s reorganization of the Prussian State Council.

281

Goering wanted the new State Council to serve as a type
of advisory Upper House which, although having no legis—
lative power, would serve as a link between the government
and other segments of society. In this effort Goering
received the support of Popitz, who hoped to develop this
institution as a conservative counterweight to party con-
trol.18 On Popitz's suggestion Goering appointed Carl
Schmitt to the office of Prussian State Counsellor in

early July 1933. Popitz and Schmitt intended that the
Council should serve as an institution for discussing and

19 Unfortunately

handling actual administrative problems.
the plans of Popitz and Schmitt never materialized as the
Council turned out to be merely a pet show—piece for
Goering. The Nazis never intended to allow the Council to
have any real significance. At the very first conference
of the Council on September 16, the true party intentions
for the Council were quite clear. On the question of
public administration and municipal self-administration in
a National Socialist state, Schmitt's factual discussion

of the actual nature and formation of municipal self-

administration was eclipsed by the ideological concepts

 

l8"Abschrift. Sitzung des Preussischen Staats—
ministeriums," Berlin, May 29, 1933, Geheimes Staatsarchiv
Preussischer Kulturbesitz, Berlin, Rep. 90, Preussisches
Staatsministerium, "Staatsrat," No. 13. PP. 247—251.

19Carl Schmitt, "Beantwortung des Vorwurfs,“
Op. cit., p. 4.

 

 

 

282

20 That

stressed by Terboven, the Gauleiter from Essen.
was just the beginning of the party's rejection of
Schmitt's attempt to influence their political and consti—
tutional policies as well as their theories.

The formation of the Prussian State Council played
an important part in Schmitt's theoretical approach to
the Nazi regime. From the organizational structure of
this Council Schmitt drew up his theoretical model for
the constitutional foundations of the Third Reich.21 And
it is interesting that Schmitt had first presented this
analysis of the future Nazi state in early June when the
Council was first proposed.

The Prussian State Council was divided into three
groups, consisting of the state secretaries, party members,
and societal representatives from the churches, economy,

science, arts, etc.22 According to Schmitt‘s analysis

20“Erste Arbeitstagung des Staatsrats," in Cuno
Horkenbach, Das Deutsche Reich von 1918 his Heute, 1933

(Berlin, 1935), p. 396.

21Carl Schmitt, "Die Bedeutung des neuen Staats—
rates," Westdeutscher Beobachter, Jhg. 9, No. 169
(July 16, 1933), and "Die oeffentliche Verwaltung im
neuen Reich," speech of June 13, 1933 before the Berlin
Verwaltungs-Akademie, in "Der Geist des neuen Staats—
recht," Deutsche Juristen—Zeitung, Jhg. 38, Heft 14
(July 15, 1933), p- 959.

 

22"Gesetz ueber den Staatsrat. Vom 8. Juli 1933,“
Preussische Gesetzsammlung, No. 46 (July 10, 1933),
pp. 241—243. BA, R-43—I, No. 2300, “Akten betreffend
Preussischer Staatsrat (1921—1936),“ Membership List
February 17, 1934.

 

283

each group corresponded to the organizational parts of the
new twentieth century state, i.e. the state, the movement,

and the people.23

The state was the political-stately
part with administrative authority, the party or movement
the politically dynamic part which leads the nation, and
the people the unpolitical sphere of public life. These

three groups were . . . different but not separate,

d."24

united but not merge It was the party that pene-

25 The

trated, led and united the state and the people.
Law on the Securing of the Unity of Party and State, of
December 1, 1933 had legalized this party function. Thus
the party served this purpose through Hitler's position
as both the head of state and the leader of the party.

As Schmitt pointed out, the party was not an organ of the
state and its union with the state was solely based upon
this “personal—union" of the Fuehrer with the state.26
Although Schmitt did not specifically mention the fact,
the duality of state and party remained. If the Nazis had
completely destroyed the old state apparatus and adminis-

tration and instituted a one-party state along the lines

of the Soviet Union this duality would have disappeared.

23Carl Schmitt, Staat, Bewegung, Volk: Die
Dreigliederung der politischen Einheit (Hamburg, 1933).

24

 

 

Ibid., p. 21.

 

251bid., pp. 11-12.
26

 

Ibid., p. 20.

 

284

The Nazi inroads into the state apparatus were never
extensive enough to remove this duality. Party and state
existed side by side throughout the Third Reich, and the
Nazis achieved the primacy of the party only in certain

27 Still, the Nazis never ceased in their per—

instances.
sistent attempts to turn the state into merely an adminis—
trative apparatus of the party.

Schmitt had conceived of the Third Reich in terms
of an authoritarian state rather than a totalitarian one.
This authoritarian state Schmitt envisioned as a qualita—
tive total state ruled from above by a sovereign, in this
case Hitler, governing and attending to the affairs of
state. In a state of exception when the state was suf—
ficiently endangered the sovereign had almost unlimited
power to intervene in all aspects of life, though under
normal conditions the state would not interfere in the
private spheres of life. The totalitarian state which
actually characterized Nazi Germany, in contrast to
Schmitt's scheme, was a quantitative total state that
completely and constantly interfered into every aspect of
life, both public and private. Schmitt had criticized

Weimar for approximating such an intervening quantitative

total state, but now the dictatorship of the party far

 

27Karl Dietrich Bracher, The German Dictatorship:
The Origins, Structure, and Effects of National Soc1alism

—.——__.._—_________

(New York, 1970), pp. 231-236.

 

285

surpassed the total control Schmitt had criticized. Where
the Nazis failed to achieve complete control of the state
they did manage to gain control over many aspects of soci—
ety. The fact that Schmitt applied this authoritarian
approach to the National Socialists in his early days of
collaboration attests to his shortsightedness and naivete
concerning the true nature of the Nazi phenomenon.

With the prestigious office of Prussian State
Counsellor and his direct access to Hermann Goering, who
liked to think of himself as a patron of the arts and
intellectuals, Schmitt moved quickly into other areas of
Nazi legal affairs. Before this time Nazi legal theore-
ticians paid little, if any, attention to Carl Schmitt.
While Schmitt received probably more attention than any
other constitutionalist in legal journals throughout the
era of the presidential system, and even more during the

1932 crisis, the Nazi legal journal Deutsches Recht never

 

even mentioned his name.28 Now suddenly Schmitt not only
attracted the attention of the Nazis, but he rose to a

place of distinction in Nazi legal institutions. Schmitt
became a member of the recently organized Nazi Academy of

German Law, worked on several of its committees, and

28Deutsches Recht Monatschrift des Bundes N—S

Deutscher Juristen, ed., Hans Frank, Jhg. 1—2 (1931-
1932).

 

 

286

29 By

delivered lectures at its major conferences.
November he received the directorship of the University
Teachers Group of the National Socialist League of German
Jurists, and in June 1934, Hans Frank appointed him editor
of the Deutsche Juristen—Zeitung.30
From outside the Nazi party structure it appeared
that Schmitt was actually functioning as the Kronjurist
of the Third Reich. There appeared some continuity
between the publicity he received during 1932 and the
prestige arising out of his newly acquired closeness to
the National Socialist power structure. In the spring
Schmitt was offered the prestigious chair of constitutional
law at the University of Heidelberg formerly occupied by
Gerhard Anschuetz, and in July he received an offer from
the University of Munich. The faculty as well as the
studentbody of the University of Cologne urged Schmitt to
refuse these offers and remain as their "intellectual

leader."31 Schmitt finally accepted the chair of public

law at the University of Berlin in October 1933. Much of

29Akademie fuer Deutsches Recht, Records of Nazi
Cultural and Research Institutes, U.S. National Archives,
No. T—82, Roll—23, Serial-28, Reel—806.

30Deutsche Juristen-Zeitung, Jhg. 39, Heft 11
(June 1, 1934), p. 690-692.

31Professor Nipperdey to Carl Schmitt, May 29,
1933, Carl Schmitt—Personal Papers, and "Die Student—
schaft an Professor Carl Schmitt," Koelnischer Zeitung,
No. 390 (July 21, 1933).

 

 

 

287

this attention granted to Schmitt resulted from the Nazi
purges of the universities which made it difficult to
fill the vacuum with renowned nationalist professors. Even
his old opponents, however, felt that Schmitt had some
influence within the Nazi regime. Congratulating Schmitt
on his appointment as Prussian State Counsellor, Arnold
Brecht, who had opposed him in the trial Prussia contra
Reich, solicited Schmitt's assistance. Brecht wrote that,
"the ministry of state, in which no one any longer knows
me personally, is threatening me with temporary retirement
by employing paragraph four of the Professional Civil
Service Law. Could you as an old opponent say a word for
me in this regard."32
This outward appearance of influence would never
conform to Schmitt's own major expectations regarding his
security and his ability to influence constitutional and
legal developments in the Third Reich. Aside from
Goering and Frank, Schmitt never came into contact with
the Nazi upper echelons of Himmler, Goebbels, Rosenberg,

Hess, and Hitler.33 In so far as Schmitt was a renowned

professor and a member of his Prussian State Council,

32Arnold Brecht to Carl Schmitt, August 16, 1933,
Carl Schmitt-Personal Papers.

33Carl Schmitt, "Beantwortung der Frage: Wieweit
haben Sie die theoretische Untermauerung der Hitlerschen
Grossraumpolitik gefoerdert?" (Nuremberg, April 18,
1947), Carl Schmitt—Personal Papers, I, p. 2.

288

Goering patronized him in the same manner that he patron-
ized certain artists. Within Nazi legal organizations
Schmitt's position rested solely upon Hans Frank's recog—
nition of his talents. Frank protected Schmitt from the
jealousies and attacks by older party members who, viewing
Schmitt as an opportunist, doubted his ideological and

34

political sincerity. Actually even in these legal

organizations Schmitt was not the Kronjurist and the older
Nazis dominated the scene.35 In January of 1934 the press
office of the German Legal Front requested that Schmitt

write an article for Deutsches Recht on the first anni-

 

versary of Hitler's chancellorship. Using his title as
Staatsrat Schmitt respectfully declined on the grounds
that he had numerous other obligations. The press office
reacted harshly and rejected the idea that Schmitt's work
within the party ". . . can be dependent upon other obli—

gations," and demanded that the article appear as they had

d.36

planne The fact that the article appeared as scheduled

34Carl Schmitt, "Beantwortung des Vorwurfs,"
92- Cit. I pp. 4—5-

35BA, R—43—II, Reichskanzlei 1933-1945, No. 1509,
"Akademie fuer Deutsches Recht 1933—1935."

36Carl Schmitt to Oberregierungsrat, January 13,
1934, and Press Office of Bund Nationalsozialistischer
Deutscher Juristen to Reichsgeschaeftsfuehrer Dr. Hueber,
January 15, 1934, Personalakte Carl Schmitt (Sch 32),
"Nazi Party Records Berlin," Document Center Berlin.

 

 

289

indicates the precarious position of Schmitt within the
party and the hollowness of his titles.37
During the first years of the Nazi regime Schmitt
continued to believe that he could play a role as the
Kronjurist and direct Nazi policy toward a conservative
framework. He worked prodigiously on various legal and
theoretical aspects of the new regime under the double
illusion that this would assure his rulers of his loyalty
and at the same time he could influence legal affairs. By

1936 Schmitt had published five short books and over

thirty—five articles in support of the Third Reich. The

 

Rechtswissenschaftlichen Denkens, represented Schmitt's
final theoretical shift from Decisionism to what he called
38
Concrete Orders.
For Schmitt the classical exponent of Decisionism
was Thomas Hobbes, who defined a sovereign as one who
establishes order, peace, and security. All law, norms,
and order arise out of the decision of this sovereign,

and this "sovereign decision is the absolute beginning and

the beginning is nothing but sovereign decision."39 That

 

37Carl Schmitt, "Ein Jahr nationalsozialistischer
Verfassungsstaat," Deutsches Recht, Jhg. 4, No. 2
(January 25, 1934), pp. 27-30.

3 . . .
8Carl Schmitt, Ueber Die Drei Arten Des Rechts—

 

39Ibid., pp. 27—28.

 

290

was the legal and political theory Schmitt espoused during
the Weimar Republic. Now Schmitt began to modify his
position on the origin of order and law as emanating
through an absolute decision of the sovereign. He held
that there existed certain concrete institutions or
orders, such as the family, church, Estates, army,
bureaucracy, etc., which serve as the basis for order and
laws.40 He no longer held that the decision could be born
out of nothing. All of German life must be organized
along the lines of these concrete orders, an idea which in
many respects resembled a corporate state. To a conserva—
tive like Schmitt it was very important that traditional
institutions such as the family, church, army, and bureauc-
racy remain in existence. Although Hitler would remain
sovereign and the party would be the unifying factor
between the concrete orders, Schmitt did not see the party
as exercising constant and complete totalitarian control
over every aspect of German life. He drew the distinction
between the private and the public spheres of life. The
latter being Subject to political control and the former
not. In times of crisis the sovereign could interfere
anywhere; but Schmitt assumed that under normal circum—

stances the concrete orders would be left alone.

4°Ibid., pp. 42-44.

291

The absolute sovereignty of Hitler was exemplified
most dramatically in the purges of the SA in June 1934,
when he ordered the murder of the most powerful SA leaders.
Hitler pursued this course in order to placate the army
which feared SA encroachments, and to prevent the emer-
gence of the SA as a counterweight to his own authority.
Shortly thereafter Schmitt published an article acknowl-
edging Hitler as the highest judge and justifying these
murders on the basis of necessity.41 By taking this
position Schmitt was favoring the army as a concrete
order against its possible mergence into the SA. This
action on the part of Hitler had also destroyed the radical
left wing of the movement which many conservatives like
Schmitt feared. Schmitt had accepted the fact that for
all practical purposes Hitler was the absolute sovereign
in Germany and could make such decisions over life and
death and circumvent the normal legal process in cases of
emergency. As early as the fall of 1933 Schmitt had dis-
regarded Hindenburg as a check on Hitler, stating that
the Reichspresident "reigns but does not govern."42

The motivation for Schmitt's public claim that

the "Fuehrer protects the law" was closely related to

 

41Carl Schmitt, "Der Fuehrer schuetzt das Recht,"
Deutsche Juristen—Zeitung, Jhg. 39, Heft 15 (August 1,
1934), pp. 943—950.

42
PP. 9-10.

Carl Schmitt, Staat, Bewegung, Volk," gp. cit.,

 

 

 

 

292

other events intertwined with the SA-army controversy.
Germany in the pre-purge months was experiencing the pub—
lic expression of discontent among traditional conserva-
tives. Supported by Edgar Jung and the Catholic Action
Group, Papen sought to acquire the intervention of
Hindenburg against the excesses and recent trend of the
regime. This discontent culminated in Papen's speech at
the University of Marburg where he publicly criticized

the excesses of the party. General von Schleicher had
also returned to the political scene from his retirement
and begun criticizing the regime; this conjured up various
rumours of a possible Putsch. During the purges
Schleicher, his close associate General von Bredow, Edgar
Jung, and two of Papen's aides were brutally murdered.

Two prominent figures in the Catholic movement, Bruening
and Treviranus, escaped. Papen was arrested and removed
from office.43 Under these circumstances Schmitt feared
he might also fall prey to the purge.44 As a conservative
Catholic and former advisor to Schleicher, Schmitt was

a likely target for the Nazis. He had worked closely with

Schleicher to prevent the Nazi rise to power and he was

 

43Wheeler—Bennett, Nemesis 9: Power, gp. cit.,
pp. 314—324.

44Schmitt Interview, November 22, 1972.

293

still in contact with Schleicher's former aide Colonel
Erich Marcks.

To Schmitt's good fortune the Nazi purges remained
quite limited, and his momentary fears were unnecessary.
Schmitt naturally had no way of knowing this would be the
outcome and for the rest of his life he would believe
that only the intervention of Goering saved him from the
fate of his former colleagues.46 Schmitt's article on
the purges was another public affirmation of his total
loyalty to Hitler. For Schmitt it was a matter of his
realistic philosophical belief in the relationship
between protection and obedience. He would obey Hitler
so long as the Fuehrer protected him. Such affirmations
would in the end never suffice to secure Schmitt within
this totalitarian regime. His support of these murders
merely associated him closer with the excesses of a regime
in which many party members continued to reject his sup-
port and deny his loyalty.

Schmitt could have attempted to flee Germany like
Bruening, but he doubted that he could succeed. Assuming
he could succeed there remained little hope for a satis—
factory future abroad. In the public eye he was already

too closely associated with the regime and would not fare

 

45Colonel Erich Marcks to Carl Schmitt, June 9,

1934, Carl Schmitt-Personal Papers.

46Schmitt Interview, November 22, 1972.

294

very well with German emigres who held him partially
responsible for their losses and suffering. Furthermore,
his own nationalism hindered emigration and, considering
his precarious position in the Third Reich, Schmitt still
profited by that system. His status as State Counsellor,
professor in Berlin, and director of the Nazi University
Teachers Organization, played upon his vanity and sense of
importance. By compromising himself for protection, self—
aggrandizement, and public attention Schmitt had set him~
self up as the enemy of those who fled the regime.

One of his most despicable compromises dealt with
the issue of anti-semitism. Before the Nazi seizure of
power there was not the slightest indication of anti-
semitism in any of Schmitt's works or personal relation—
ships. Many of his closest friends were Jews. He had
dedicated his Verfassungslehre to Fritz Eisler, a Jewish
companion who died during World War I, and Schmitt had
written a lauding work on Hugo Preuss. Erich Kaufmann,
Moritz Julius Bonn, Franz Blei, and Otto Kirchheimer were
amongst his close Jewish friends and colleagues. With the
advent of the Nazi regime Schmitt commenced paying lip
service to the anti—semitism of the party by occasionally
inserting merely a few anti—semitic remarks into the text

of his works. Although at times Schmitt used such terms
as race and blood his anti—semitism would never reach the

Stage of biological racism. And anti-semitism constituted

295

only a very minor aspect of Schmitt's work and collabora—
tion. When the Nazis instituted repressive measures
against the Jews Schmitt started referring to Jews as
heterogeneous elements inhibiting the homogeneity of the
German nation. He was aware that historically not only
Jews, but at various times also Christians, Moslems,
Protestants, the bourgeois class, and other minority or
heterogeneous groups were declared enemies of a state and
faced banishment or persecution. He accepted Nazi anti—
semitism in terms of these historical precedents. If
anti-semitism had not been such a vital issue for the
Nazi regime, Schmitt probably never would have involved
himself with the Jewish question.

The closer Schmitt tied himself to the new regime
the more anti—semitism entered into his work. As a title
holder of a high party office he was expected to conform
to the party line. He also had to overcome the party
suspicion about his past close professional and personal
involvements with Jews. As his position within the party
became more and more precarious he expounded the party
line more vociferously. Schmitt‘s extreme anti—semitic
utterance in the years 1935 and 1936 can only be properly
understood in terms of the fact that he was increasingly
under attack from within the party and from abroad.

Schmitt had already encountered theoretical diffi—

culties with the Nazis as early as 1934. There were grave

 

296

discrepancies between his proposals for organizing the
state, the party and the people, and the organizational
schemes of the Nazi theorists. As a conservative Schmitt
hoped that the state apparatus would remain as the essen—
tial administrative institution. Schmitt had intended that
the party would be the politically decisive group linked
to the state through the Fuehrer, but that no merger of
party and state would take place. The Nazis on the other
hand unsuccessfully attempted to take complete control of
the state apparatus. For them the state was to become
merely an instrument of the party. Theorists like
Rosenberg feared that if they continued to emphasize the
state then eventually the concept of the state would pre-
dominate over that of the movement. In the fall of 1934
Rosenberg let it be known that he had doubts about the

47

"ideological side" of Carl Schmitt. Unlike the suspect

Schmitt, the state for Rosenberg and other Nazis was not
to have any significance in and of itself.

Another point of contention between Schmitt and
the Nazis concerned the role of the people. The final

goal of the entire movement according to Nazi theorists

47Alfred Rosenberg, "Totaler Staat," Voelkischer
Beobachter (January 9, 1934), in Alfred Rosenberg:
Selected Writings, ed., Robert Pois (London, 1970),
pp. 191-192. Staff Director in Rosenberg's office to
Professor Wirz in NSDAP Hochschulkommission, September 20,
1934, Gemeinschaft studentischer Verbaende, Institut fuer
Zeitgeschichte, Munich, MA-ll63, NSDAP (IV, 24), 95620-
95622.

 

 

297

was the realization of the political will of the German

people as represented by the Fuehrer.48

In his theory
Carl Schmitt had relegated the people to an apolitical
position "in the protection and shadows of political

decisions."49

Probably more disturbing to the Nazi
theorists was that Schmitt's entire scheme was not
racially based.

And it was on the question of race that Schmitt
received his first public rebuke from the Nazis. Otto
Koellreutter, a law professor at Munich and one of the
leading advocates of a racially oriented political policy,
led the ideological assault on Schmitt. Koellreutter
argued that Schmitt had contributed nothing substantial

50

to National Socialist legal thought. To convinced

Nazis like Koellreutter Schmitt's theories appeared

"avoelkisch" and neglected the fundamental biological

51

foundations of political life. Beyond these bitter

8Hans Fabricus, Bewegung, Staat, und Volk in
ihren Organisationen (Berlin, 1935).

 

 

 

49Carl Schmitt, Staat, Bewegung, Volk, pp. cit.,

 

p. 12.

50Otto Koellreutter, Deutsches Verfassungsrecht:
Ein Grundriss (Berlin, 1935), pp. 3-4, 26.

51Otto Koellreutter, Volk Eng Staat in ger
Weltanschauung des Nationa15021alismus (Berlin, 1935),
pp. 6-11. This—wark was first presented as a lecture in
1934 before the general meeting of the Kant-Gesellschaft
at the University of Halle. That speech was for the most
part an attack on the teaching of Carl Schmitt. For
Koellreutter the foundations of Nazi politics was the

298

published attacks on Schmitt, Koellreutter initiated
intrigues within the party against his conservative rival.
He attempted to capitalize on the disapproval of Schmitt
displayed by other party members. The past incongruencies
with the Nazis, which Schmitt had hoped were forgotten,
were now being discussed in various party circles.
Numerous arguments against Schmitt began to surface. He

had been an opportunist and late-comer to the movement

52

who previously closely associated with Jews. But the

time was not yet ripe for the party's reckoning with
Schmitt. Many party members who viewed Schmitt in a

highly negative manner believed that his position was

still unassailable.53 Schmitt's status as Goering's State

Counsellor and the associate of Hans Frank discouraged
lesser party members from challenging him. Yet, by the

fall of 1934 rumours spread that Schmitt would shortly be

removed from his party offices.54

"people as a biological organic unit." He repeatedly
criticized Schmitt's Nazi works and his friend—enemy
theory as "a—voelkisch." See also: Otto Koellreutter,

Der Deutsche Fuehrerstaat (Tuebingen, 1934), p. 16.

52Bornhack to Koellreutter, April 22, 1934, and
June 1, 1934, Heckel to Koellreutter, October 6, 1934,
"Schmitt, Karl Dr. Prof.," Sicherheitsdienst des RFSS SD
Hauptamt, Institut fuer Zeitgeschichte, Munich, AKZ 4062/
68 Fa 503, Bd. I, pp. 7, 11.

53Gerland to Koellreutter, June 16, 1934,
"Schmitt," SD Hauptamt, AKZ 4062/68 Fa 503, Bd. I, p. 10.

54Schwinge to Koellreutter, September 10, 1934,
"Schmitt," SD Hauptamt, AKZ 4062/68 Fa 503, Bd. I, p. 6.

299

These party intriguers were not the first to
instigate public scrutiny of Schmitt's past and challenge
the sincerity of his National Socialism. The German
emigres, many of whom were former intimate friends and
colleagues of Schmitt, now took their revenge on the
Kronjurist. Shortly after joining the party Schmitt had
criticized the German intellectuals living abroad for
attacking Germany, and stated that they were not true

55 In return

Germans and should be banished forever.

these emigres viewed Schmitt's collaboration as treacherous

opportunism and it became the intent of some to discredit

him in the eyes of the Nazis, even at the cost of his life.
The first emigre attack on Schmitt came on

October 1, 1934 from his former friend Waldemar Gurian,

writing for the Schweizerischen Rundschau under the

pseudonym Paul Mueller. A similar article was published

on the 26th in Deutsche Briefe, a journal organized in

Switzerland by Gurian and Otto Knab, another emigrant

56

journalist. These articles confirmed in the most

explicit terms all of the Nazi suspicions concerning

Schmitt. They noted that Schmitt began his career with

55Carl Schmitt, "Die deutschen Intellektuellen,"
Westdeutscher Beobachter, Jhg. 9, No. 126 (May 31, 1933),
PP- I"?-

56"Carl Schmitt, Der Kronjurist Des III. Reiches,"
Deutsche Briefe (October 26, 1934), in Huerter, Deutsche
Briefe, Bd. I, op. cit., pp. 52—54.

 

300

the aid of liberal, non-aryans, that he befriended Jews,
and adhered to Roman Catholicism. More significant,
Schmitt had struggled against the National Socialists and
had once referred to the movement as "organized mass
insanity.“ These authors also emphasized that Schmitt
could never be a true National Socialist and claimed he
was using the party simply for his own ends. Such expo-
sures continually emanated from Deutsche Briefe for the
next two years, with no other figure being so bitterly
attacked and morally defamed as Carl Schmitt.57 The venge-
ful goal of discrediting Schmitt with the party eventually
resulted in complete success. And those party members who
opposed Schmitt found these articles to be evidence of his
disloyalty and as grounds for his removal from party
offices.58
Beginning in 1934-1935 Schmitt's position within
the party was weakening. Although Goering and Frank still
patronized Schmitt a new force, the SS, was emerging
within the Third Reich and would neutralize the influence
of Schmitt's protectors. Heinrich Himmler had taken over

the police power from Goering and the SS quickly ascended

to a dominating position, restricted only by Hitler

 

57Huerter, Waldemar Gurian, gp. cit., p. 13.

58Koellreutter to Mirow, November 1, 1934, Becker
to Koellreutter, November 15, 1935, "Schmitt," SD Hauptamt,
AKZ 4062/68 Fa 503, Ed. I, pp. 8, 16-18.

 

301

himself. During 1934 and 1935 the SS introduced an
extensive purging of enemies of the state. Thousands

were arrested for the least suspicion of anti-state behav-
ior.

It was under these circumstances that Schmitt's
anti-semitism reached its peak. He made a concerted
effort to prove his loyalty and lend his full support for
Nazi anti—semitic policies in order to overcome his own
past. While publishing a series of articles justifying
the repressive measures against Jews, Schmitt went so far

as to declare the Nuremberg Laws the constitution of free—

59

dom In the spring of 1936 he prepared for the first

time to introduce an anti-semitic program within the

National Socialist University Teachers Group which he

60

directed. At the conference of University Teachers held

in October 3 and 4, 1936, he launched his most devastating

attack on Jewish influences in German law and presented

59Carl Schmitt, “Die Verfassung der Freiheit,"
Deutsche Juristen—Zeitung, Jhg. 40, Heft 19 (October 1,
1935), pp. 1133-1135, and "Die nationalsozialistische
Gesetzgebung und der Vorbehalt des 'ordre public' im
Internationalen Privatrecht," Zeitschrift deg Akademie fuer
Deutsches Recht, Jhg. 3, Heft 4, (February 20, 1936),
pp. 204-211.

60"Aus der Deutschen Rechtsfront," Deutsche

Juristen—Zeitung, Jhg. 41, Heft 11, (June 1, 1936),

pp. 695-696. "Das Judentum in der Rechtswissenschaft:
Tagung der Reichsgruppe Hochschullehrer des NSRB,"
Mitteilungensblatt des National—Sozialistischen Rechts-

wahrerbundes, Jhg. 1936 (Berlin, 1936), pp. 200—201.

 

302

his suggestions for purging the "Jewish Spirit."6l It
must be noted that this was related solely to the policies
of excluding Jews from public life and had nothing to do
with the terror acts and the genocide that later character—
ized the regime. Whether Schmitt would have condoned the
barbarous crimes against Jews after 1936, had he not
fallen out of favor with the regime, is, however, a sub—
ject for serious speculation. In the end he accomplished
nothing by this anti-semitic offensive with regard to
securing his own welfare, instead he inflicted a permanent
blemish on his own reputation and character.

His opponents at home and abroad were still not

convinced of his sincerity. The editors of Deutsche Briefe

repeatedly taunted the party for overlooking Schmitt's

past Jewish relationships and for their credulous accept-

62

ance of his recently acquired anti-semitism. Such an

affront to the reputation of the Third Reich could not be

tolerated by the SS. As the most powerful organization

61Carl Schmitt, "Die deutsche Rechtswissenschaft
im Kampf gegen den juedischen Geist: Schlusswort auf der
Tagung der Reichsgruppe Hochschullehrer des NSRB vom 3.
und 4. Oktober 1936," Deutsche Juristen—Zeitung, Jhg. 41,
Heft 20 (October 15, 1936), PP. 1194-1199.

62"Bin Bolschewistenfreund als Nationalsozialist—
ischer Kronjurist," Deutsche Briefe (March 13, 1936), "Der
NS Kronjurist Carl Schmitt ueber das Plebiszit," QB
(April 3, 1936), "Carl Schmitt gegen Carl Schmitt," DB
(May 22, 1936), "Der Fall Eschweiler, Das Opfer Carl——
Schmitts," DB (June 19, 1936), "Staatsrat Carl Schmitt,"
DE (October—9, 1936), in Huerter, Deutsche Briefe, Bd. II,
9p. giE., pp. 107, 130, 204—205, 240, 405-406.

 

 

303

within the party the SS now represented the cause of
Schmitt's party opponents, who were previously unable to
confront Goering and Frank. Since the summer of 1936 the
SS had conducted an extensive investigation of Carl Schmitt
and prepared its case against him. There is little doubt
that Schmitt was informed of the inner-party conspiracy
against him and that this was the primary motivation for
his preparation of a conference on the Jewish question.

The fall of 1936 was full of intrigues by the SS
to remove Schmitt from party offices counterbalanced with
efforts by Schmitt to secure his own position. A wide—
spread surveillance of Schmitt‘s activities by the SS
revealed that he intended to strengthen himself within
the party by gaining the sympathy of members close to
Hitler. Allegedly with this in mind Schmitt had invited
Gauleiter Julius Streicher to the conference on Jewry.
The SS viewed the entire conference as an attempt by
Schmitt to rehabilitate himself within National Social—
63

ism SS officials believed that Schmitt had further

ambitions which involved his appointment as a state

secretary when Hans Frank assumed the office of minister

of justice.64 The SS not only made sure that the

63"Teilnahme des Gauleiters Streicher an einer
Tagung von Carl Schmitt,“ SD Hauptamt, AKZ 4062/68,
Fa 503, Bd. I, pp. 47-49.

64"Ernennung Franks zum Reichsjustizminister,“
Ibid., PP. 42—43.

 

 

304

exclusion of Schmitt was a precondition of Frank's
appointment, but they urged Frank to remove Schmitt from
his posts in the Academy of German Law. Under pressure
from the SS Frank allowed Schmitt to be intentionally

isolated within the Academy, thwarting Schmitt's ambitions

in that organization by the end of November.65

Frank assumed that Schmitt would retain his direc—
torship of the University Teachers Group in the Nazi
Jurists' Association. As early as January 1936, however,
the SS had already suggested that Frank replace Schmitt
as director of the Teachers Group with a true National
Socialist. Further pressure from the SS and other

Schmitt opponents forced Frank to prepare for Schmitt's

66

removal from that office by the end of 1936. In a last

attempt to secure his party standing Schmitt wrote

65"Ausschaltung Carl Schmitts aus der Akademie
fuer Deutsches Recht," Ibid., Bd. I, pp. 90, 96-98,
112-113.

66George Schwab, The Challenge, op. cit., p.138,
stated that Schmitt resigned this office— willingly after
the Jurist conference in November 1936 when he realized
the conflict between his own anti—semitic remarks and the
biological racism of the Nazis. But despite this dif—
ference, which Schmitt certainly recognized earlier, he
desired to continue working with the Nazis and it was
actually the Nazis who rejected him and forced him from
office. See: Reinhard Hoehn to Koelnische Zeitung,
October 16, 1936, Vermerken Hoehn, October 20, 1936,
October 25, 1936, October 26, 1936, Hoehn, "Besprechung
mit Reichsminister Frank nach der Tagung des Polizeirechts—
ausschusses, October 24, 1936, “Bericht: Staatsrat Carl
Schmitt," and Professor Eckhardt to Hans Frank,

January 24, 1936, Ibid., Bd. I, pp. 66, 80-83, 99—101,
110, Bd. II, pp. 126, 215.

 

 

 

305

directly to Himmler on December 2, describing the extensive
work of his Teachers Group in purging Judaism from German
law. Schmitt informed Himmler that his group was prepared
for any cooperation in the struggle against Judaism.67
Schmitt's final plea came too late and the following day
the SS publicly attacked Schmitt for the first time in

their paper Das Schwarze Korps.

 

This first public attack was rather mild and
directed mainly against an article lauding Schmitt written
by Guenther Krauss, one of his former students.68 A second
article which appeared in the SS organ the following week
actually signaled the end of Schmitt's Nazi career. The
SS arguments against Schmitt were those printed for the
last two years in Deutsche Briefe. Schmitt was essentially
a Catholic thinker, and had joined the party out of oppor—
tunism. His past personal relationship to Jews and his
reliance on Jewish scholarship was not hidden by his
recently acquired anti-semitism. The SS noted that con-
trary to the Nazi doctrine of race Schmitt had stated in

his early work Nordlicht, that "the entire romanticism of

racial teaching is based upon similar, namely

 

67Carl Schmitt to Heinrich Himmler, December 2,
1936, Ibid., Bd. II, p. 125.

 

"Ein peinliche Ehrenrettung," Das Schwarze
Korps, Folge 49 (December 3, 1936), p. 14.

 

 

 

306

morphological speculations . . . ."69 The reliance of the

SS on these arguments was due mainly to the fact that they
had as yet not compiled their own documented reports

about Schmitt's past works and activities. These docu-
mented reports were only completed after the public

attack on Schmitt.

That public attack was obviously not the end of
the SS concern with Schmitt. Up to this time the SS had
been merely gathering a diffuse range of every possible
piece of evidence against Schmitt. A decisive factor in
this whole affair, and a point not mentioned in the news-
paper articles on Schmitt, was that the SS considered
Schmitt as an avowed opponent of their organization.70
To rid themselves of this adversary the SS had been
working behind the scenes for months to destroy his stand—

ing in the party. The forced resignation of his director-

ship of the Teachers Group was just the beginning of the

intended vilification of Schmitt.7l There existed a
69" . . - - 1"
Es w1rd immer noch peinlicher. Das Schwarze

Korps, Folge 50 (December 10, 1936), p. 2.

 

70"Aeusserungen Carl Schmitts ueber die Arbeit der
SS," SD Hauptamt, AKZ 4062/68, Fa 503, Bd. I, pp. 35-36.

71"Reichsgruppe Hochschullehrer," Mitteilungens—
blatt des National—Sozialistischen Rechtswahrerbundes,
Jhg. 1936 (December 15, 1936), p. 248. "Carl Schmitt
ausgeschieden aus den Aemtern des NS-Rechtswahrerbundes,"

Berliner Tageblatt, No. 602 (December 20, 1936).

 

307

general fear within the SS that now that the discrepancies
between Schmitt's work on National Socialism and the
actual Nazi Weltanschauung were exposed Schmitt was trying
to secure himself through another method. Supposedly,
Schmitt planned to move into the field of international
law so as to avoid his complete scholarly isolation.72
Consequently, the SS would be satisfied with nothing less
than the complete exposure of Schmitt's disloyalty and
probably eventually his elimination.

To fulfill this goal the SS began in mid—December
1936, immediately procuring a collection of Schmitt's
works and further personal evidence on which to base their

case. 73

 

The result was two extensive reports finished

74

early in 1937. According to these reports, older Nazi

party members had opposed Schmitt as early as 1933, but
his true political position was first exposed by the

foreign emigre press, which used him as an opportunity to

‘72"Besprechung ueber Carl Schmitt, November 4,
1936," "Bericht Staatsrat Carl Schmitt,“ SA Hauptamt,
AKZ 4062/68, Fa 503, Bd. I, pp. 84—87, 99—101.

73"Schriften von Carl Schmitt, December 14,
1936," SD Hauptamt to SD Oberabschnitt Sued, Munich,
December 14, 1936, Telegram Braune SD Hauptamt to SD
Oberabschnitt Elbe, Leipzig, December 14, 1936, SD
Hauptamt to State secretary Lammer, ibid., Bd. II,
pp. 132, 138, 140, 154.

 

74"Professor Carl Schmitt,“ and “Der Staats—
rechtslehrer Prof. Dr. Carl Schmitt," Mitteilungen Zur
Weltanschaulichen Lage, No. 1/3 (January 8, 1937), ibid.,

Bd. II, pp. 184-220, 266—281.

 

 

308

attack National Socialism.75 Aside from the problems of
Jewry, Catholicism, and opportunism, most striking about
the reports was the documentation of Schmitt's past anti—
National Socialist activity. As the Kronjurist of the
presidential system he advocated the constitutional repres—
sion of National Socialism. The theory of the "equal
chance" as embodied in his Legalitaet BBQ Legitimitaet

was expressly intended to prevent the legal acquisition of

76 Such documentation of anti-Nazi

power by the party.
work wielded by the SS against most individuals in Nazi
Germany usually meant at least imprisonment.

When the critical articles appeared in Das Schwarze

Korps it appeared that the end was near for Carl Schmitt.

 

While his Nazi opponents lauded his final removal from

party offices, the editors of Deutsche Briefe rejoiced at

the fruits of their work.77 Regarding Schmitt's changing

fortune they noted that so long as he served a purpose for

National Socialism the Nazis could overlook his past; now
78

he was superfluous. Flaunting the fact that their

journal had long exposed Schmitt's true nature, the

 

75"Professor Carl Schmitt," ibid., pp. 184-185.

76Ibid., pp. 194-203.

77Ibid., pp. 155, 161—168.

78"Der NS Kronjurist Carl Schmitt Als Mohr . . .,"
Deutsche Briefe (December 11, 1936), in Huerter, Deutsche
Briefe, op. cit., pp. 489-491.

309

editors of Deutsche Briefe prematurely and wishfully pre-
sented the alternatives for him as "emigration or a con—
centration camp."79
But the SS reports were never made public and the
attacks on Carl Schmitt soon ceased. In spite of the
endangered position of Schmitt, the final consequence of
the entire affair merely meant the end of his work within
the party rather than the end of his professional career.
The day after the second attack on Schmitt appeared,
Hans Frank came to Schmitt's defense. In a protest letter
to d'Alquen the editor of gas Schwarze Eggpg, Frank
criticized these articles as a repetition of the hate
propaganda which appeared in the Jewish emigre press.80
All of this propaganda, Frank claimed, was directed at
destroying Schmitt's reputation and intellectual influence.
If the editors were familiar with Carl Schmitt's work over
the last three years for the goals of National Socialism,
Frank said, these articles would never have appeared. In

further protest Frank sent a copy of this letter to

Himmler.

 

79"Die NS Treibjagd gegen NS Kronjuristen Carl
Schmitt hat eingesetzt," Deutsche Briefe (December 18,
1936), and "Auf dem Wege in die Emigration oder ins
Konzentrationslager?" Deutsche Briefe (December 24, 1936),
ibid., pp. 498-499, 510.

80Hans Frank to Gunter d'Alquen, December 11, 1936,
SD Hauptamt to SD Hauptamt, AKZ 4062/68, Fa 503, Bd. II,
Pp. 128-129.

 

 

310

Frank lacked sufficient power within the party,
however, to resist the wishes of the SS. Over the past
few months he had gradually given in to the SS by removing
Schmitt from party offices. His most recent concession
was the forced resignation of Schmitt as editor of the

Deutsche Juristen-Zeitung.81 When Himmler sided with

Das Schwarze Korps, Frank's protest came to nothing.82

 

Only through the direct intervention of Hermann Goering
were Schmitt's life and professorship spared. Like Frank,
Goering was disturbed that a prominent figure with whom
they had worked was now being publicly defamed. Further-
more, as a Prussian State Counsellor Schmitt fell into
Goering's party sphere of influence and thus had immunity
guaranteed by Goering to all State Counsellors. Writing
to d'Alquen, Goering stated that even if the content of
the attack was factually correct the public injury to the
reputation of Carl Schmitt was unjustified, because
Goering could not tolerate the degradation of a personality

that he himself had called to high public office.83

81Carl Schmitt, "Schlusswort des Herausgebers,"

and Hans Frank, "Zum Abschluss," Deutsche Juristen-

ieitung, Jhg. 41, Heft 24 (December 15, 1936), pp. 1449—
456.

82Heinrich Himmler to Hans Frank, January 5, 1937,

SD Hauptamt, AKZ 4062/68, Fa 503, Bd. II, p. 240.

3Hermann Goering to Gunter d'Alquen, December 21,
1936, ibid., p. 235.

 

 

 

 

 

 

311

Goering requested that the public attacks cease immedi—
ately.

No doubt Goering and Himmler agreed upon some
type of arrangement concerning the fate of Carl Schmitt.
Fortunately for Schmitt, Goering jealously guarded the
prerogatives of his allotted sphere within the Third
Reich, and prided himself on his patronage of artists and
intellectuals. Carefully watched by the SS for the dura—
tion of the regime, Schmitt retained his professorship at
the University of Berlin. The only official title
Schmitt held thereafter was that of State Counsellor with
its protection of immunity upheld by Goering, even though
the Council was by this time a defunct organization that
never assembled after 1936. Although he never again worked
within the party or dealt with domestic politics Schmitt
did fulfill his goal of handling problems of international
law and politics in the latter stages of the Third Reich.

For the second time the ideas of Carl Schmitt
failed to influence politics as he had intended. Polit—
ical leaders utilize ideas as instruments for their own
ends and completely disregard those ideas which do not
conveniently serve their immediate purposes. This was
especially the case in totalitarian societies where ideas
serve only the goals of the ruling party and the slightest
deviance was not tolerated. In this respect Carl Schmitt‘s

National Socialist career was doomed from the beginning.

 

 

 

 

312

His total support for the regime was not enough. The
Nazis wanted his total ideological and intellectual con—
formity and left no room for originality or intellectual
activity outside the confines of party control.

Carl Schmitt had Viewed the Nazis as a premature
movement, which required further development of its
theoretical legal and political foundations. The Nazis
had absolutely no need for such assistance and rejected
the interference of intellectuals in their organization.
They willingly accepted his public support during the
early stages of the regime because it gave their activities
credibility at home and abroad. As soon as Schmitt
attempted to have some real impact on developments in the
Third Reich the fight to eliminate him began. Opportunism
certainly played a role in Schmitt's activities, but far
more important was his own belief that he could play the
role of Kronjurist and establish a constitutional frame—
work for the Nazis. The editors of Deutsche Briefe so
aptly summed up Schmitt's predicament in 1936 with the

pithy, "the Moor has done his duty, the Moor can go."84

84"Der NS Kronjurist Carl Schmitt als Mohr . . .,"

9p. cit.

 

CHAPTER VIII
THE INTELLECTUAL IS BANISHED:
CARL SCHMITT AFTER 1936

The SS affair had once again placed Carl Schmitt
in a quandry. Terrified by his adverse change of fortune
the former Kronjurist wondered about the possible alter—
natives of emigration or a concentration camp. Not wanting
to play into the hands of the SS, Schmitt in the end never
attempted to emigrate. The renowned advocate of Decision-
ism was unable to decide on an immediate course of action.
Instead he hesitated and anxiously awaited the decision
of the Nazis. Fortunately the matter was settled to his
relative advantage. But he now suffered the fate of the
intellectual in a totalitarian society. No longer
requiring the services of his intellect, the Third Reich
still demanded his absolute allegiance and complete con—
formity of thought. Numerous German intellectuals,
similarly disillusioned with the Nazi regime, entered a
state of "inner-emigration“ and avoided public issues by

1

escaping into esoteric areas of scholarship. At first

Schmitt attempted to follow this path. When the SS

lRinger, German Mandarins, gp. cit., pp. 442—443.

313

314

ceased their attacks on him, a relieved yet suspicious
Schmitt withdrew from public life. Eventually, he proved
incapable of overcoming the difficulties facing a pro—
fessor of public and international law who seeks to avoid
contemporary legal and political issues.

After 1936 Schmitt completely ended his work within
the party. Never again did he provide legal or political
advice for Nazi officials or institutions. Schmitt never
met with Goering after 1936 and even his association with
his friend Hans Frank was limited to a few brief encounters
in the years that followed.2 Domestic politics never
again served as a topic for his work. Taking refuge in
his professorial duties at the University of Berlin,
Schmitt no longer received any public attention, though
he occasionally delivered lectures to scholarly groups.

The Kronjurist passed quickly into obscurity.

Before 1936 Schmitt had found little difficulty in
justifying the authority of the Nazis to enforce their
will at the expense of Jews, liberals, socialists, and
other heterogeneous elements. He rationalized his support

partially on the grounds that once a strong authoritarian
state was established individual citizens would be allowed

to fulfill their private lives within the security of this

2Carl Schmitt, "Wieweit haben Sie die theoretische
Untermauerung der Hitlerschen Grossraumpolitik gefoedert?"
Carl Schmitt—Personal Papers, I, pp. cit., p. 2.

 

315

strong state. With his own life now threatened Carl
Schmitt finally faced the reality of Nazi totalitarian
control which tolerated no private sphere. The basic
function he had assigned to the state, that is, to provide
for the security of its citizens, appeared absent, as the
arbitrariness of the party finally affected him.

Beginning with a 1937 work on Thomas Hobbes, Carl
Schmitt started to express disillusionment with the
totalitarian nature of the Nazi regime. Still fearing
for his safety, Schmitt would never criticize the Nazis
directly; but, unmistakably, the Nazi state was the real
object of his critique. Schmitt would cloak his dis—
satisfaction with Nazi totalitarianism in scholarly
erudition concerning Hobbes and the problem of the
Leviathan.

For Hobbes, like Schmitt, the highest and most
important goal of the state was to secure the physical
existence of its citizens.3 Schmitt argued that, for
centuries, writers had incorrectly Viewed Hobbes as the
representative of the type of absolute state that western

democracies understand as totalitarianism. This gross

3These views were first expressed by Schmitt early
in 1937 in an article entitled, "Der Staat als Mechanism
bei Hobbes und Descartes," Archiv fuer Rechts— 2nd
Sozialphilosophie, Bd. 30 (1936/1937), PP. 622-632, which
he later expanded into, Der Leviathan i3 deg Staatslehre
ggg Thomas Hobbes: Sinn gig Fehlschlag eines Politischen
Symbols (Hamburg, 1938), p. 55. Citations are to this
later edition.

 

 

316

misinterpretation was completely inconsistent with Hobbes'
philosophy of the state and the relationship between pro—
tection and obedience. It would be ridiculous, Schmitt
wrote, for the poor human individual, out of total fear
of the state of nature, to flee into the total control of
a Golem or Moloch.4 "The state machine functions or it
does not function. In the first case it guarantees me
the security of my physical existence; for this it demands
unconditional obedience to the laws of its functions. All
further discussions lead into a 'pre-stately' condition
of insecurity, in which one's physical life is no longer
secure." If the protection ceases, then the state itself
also ceases to function and with it ends each obligation
of obedience. At this point the individual once again
wins his natural freedom.5
Nevertheless, Schmitt would never advocate or sup-
port resistance to the Nazis. Like Hobbes, he believed
that resistance to the power of the state would be a
fruitless absurdity, since the state monopolized the means
to destroy any resistance. And this power was more dis-
tinct in the totalitarian Nazi state. If the state did

not possess this irresistible power it could not maintain

peace and security, and civil war or rebellion would occur.

4Ibid., pp. 111—112.

5Ibid., pp. 69, 113.

 

 

 

 

 

 

 

 

317

Under these conditions of conflict a state of nature would
exist and mark the end of the state.6 Thus, Schmitt felt
himself in the precarious position of the individual whose
existence is no longer entirely secured by the state and
yet to whom resistance appears hopeless. As the momentary
danger to his life represented by the SS passed, the state
did reward Schmitt's obedience and acquiescence with the
preservation of his life.

There also existed a limitation on the extent of
Schmitt's inner—emigration. Although he attempted to

avoid further confrontations with the party and to keep

himself out of the public eye, Schmitt still wanted to
retain his reputation within the academic and legal pro—
fession. He hoped to accomplish this by turning away

from the problems of Nazi ideology and domestic politics
in order to concentrate on international law and politics.
Excluding his Hobbes studies, each of his publications
between 1937 and 1945 dealt with international politics.
Contrary to his expectations Schmitt would experience some
undesirable problems with the Nazis in this area. The
Nazis were turning their attention to foreign affairs and
consequently international politics emerged as a highly
significant public issue. To write on international

politics without acknowledging recent developments in

‘vm . =3

 

 

318

European foreign affairs was an impossible task for
Schmitt. His own mode of thought precluded theoretical
abstractions in favor of analyzing problems in terms of a
concrete existing situation. Throughout his life Schmitt
had displayed a special talent for quickly recognizing

the emerging political issues of a period, and he had
directed most of his writings at such contemporary issues.
As he had done in the past Schmitt now attempted to main—
tain the attention of the academic community by addressing
himself to the relevant problems then facing Germany.

What he had not anticipated was renewed public attention
and future confrontations with Nazi theorists.

Even the institutions which still offered Schmitt
an opportunity for his scholarly productivity provided no
sanctuary. One of his most ardent opponents, professor
Reinhard Hoehn, replaced Rudolf Smend in the law faculty
at the University of Berlin after the Nazi seizure of
power. As an SS officer and friend of Himmler, Hoehn
wielded considerable power and influence at Berlin.
Hoehn's involvement in the 1936 SS investigation and attack
on Schmitt created a good deal of tension between the two

7 Despite his pretentions, Hoehn's intellectual

professors.
capacities never approximated the brilliance of Schmitt,

further aggravating the tension. At this time the two

 

7Reports and correspondence of Reinhard Hoehn, SD
Hauptamt, AKZ 4062/68, Fa 503, Bd. I, pp. 66, 80—83.

 

 

319

professors never spoke to each other. Hoehn served as
director of the Institute for Government Research since
its transfer from Kiel to the Berlin law faculty in
November 1935.8 Under his leadership the institute pro-
moted the development of a completely new foundation for
National Socialist constitutional and administrative law.9
This was the arena Schmitt had originally hoped to dominate
by playing the role of Kronjurist. After 1936 he conceded
this position to true Nazis like Hoehn.

Aside from personal animosity the theoretical
approaches of both professors conflicted. Underlying
Schmitt‘s thinking was the concept of the state as a con—
crete existing political unit and order. Hoehn, on the

other hand, remained committed to the Nazi voelkisch

ideology. At least in theory, the Volk was the primary

 

pillar of the Nazi system and all other aspects of the
movement emanated from this source. For the Nazis the

Volk represented far more than the people or the nation,

 

it was an organically developed racial community. Each

Volk had its own identity, nature, and vital life source

 

out of which grew all culture and institutions, including

the state. As a part of this organic community the

8Institut fuer Staatsforschung, Ministerium fuer
Wissenschaft, Kunst und Volksbildung, Geheimes Staats—
archiv, Berlin, Rep. 76, No. 46, “Universitaet Berlin,"
p. 160.

9

 

 

Ibid-, pp. 258—260.

320

individual had significance only in so far as he was inte-
grated into the whole. The state, whose purpose it was

to preserve the existence of the Volk, was constantly omni-

 

present in all areas of society, allowing no private
sphere for the individual. SS members like Hoehn stressed

the biological makeup of each Volk as the factor that

 

determined the essence and unity of the racial community.
This entire approach contrasted sharply with the Schmittian
theory of the state. Schmitt never conceived of the state
in racial terms, his second wife Duschka Todorovitsch, in
fact, was of Serbian origin and hardly a member of the

aryan master Volk. His state presupposed the distinction

 

between private and public spheres of life. Furthermore,
the Schmittian authoritarian state was relatively static,
with stability as paramount, as compared to the dynamism
of the Nazi state.

At the University of Berlin Schmitt attracted the
traditional conservative and nationalist students, with
the voelkisch and racially oriented students following the
Nazi line of Hoehn. To protect himself Schmitt never
meddled in political controversies and referred students
with questions concerning domestic politics to his SS
colleague. It was under these closely scrutinized and
tense conditions that Schmitt was forced to pursue his

academic career in the latter years of the Third Reich.

 

 

321

The Nazis also forced Schmitt to operate under
similar conditions in the Academy of German Law. By the
end of 1936 the SS had gained control over several impor—
tant committees in the Academy and succeeded in eliminating
Schmitt from official positions. Another ardent opponent
of Schmitt's, professor Otto Koellreutter, who had
launched the first public attack on Schmitt, continued to
advance his campaign against Schmitt in the Academy.10
Only with the assistance of his friends in the Academy
such as Werner Weber, and only so long as he remained
unobtrusive and in the background, was Schmitt allowed to
continue his connection with that institution. In this
manner he continued to attend conferences and publish
articles in the Academy's journals.ll At the Academy
Schmitt still remained reluctant to become involved in any
facet of domestic politics, especially if it involved
constitutional questions, or would lead to the slightest

12

confrontation. Instead he concentrated on the problems

10Otto Koellreutter to Werner Weber, May 28, 1937,
Akademie fuer Deutsches Recht, BA, R—61, No. 78,

"Rechtsforschung."
Akademie fuer Deutsches Recht, ibid., Nos. 64,

 

11

78, 80, 84, 88, 109, and Akademie fuer Deutsches Recht,
Records of Nazi Cultural and Research Institutes, U.S.
National Archives, No. T—82, Roll-23, Serial—28, Reel—
806, and Roll—24, Serial-29, Reel—807.

 

2Werner Weber to Freytagh—Loringhoven, October 9,
1937, and Freytagh—Loringhoven to Werner Weber, October 12,
1937, BA, R—6l, No. 80.

 

322

of international relations, where he hoped his strong
nationalism and his power—political approach would prove
more compatible with the position of the National
Socialists. But with regard to international relations
Schmitt still declined to deliver his works as lectures
to the Academy, and he did not take part in discussions
during the conferences he attended.

Before his fall in 1936 Schmitt had taken an
interest in the changing course of international relations.
He was gratified that the Versailles system and the League
of Nations were weakening, and that Germany was finally
escaping from the oppression of the Diktat. Schmitt
wholeheartedly supported the repudiation of the military
clauses of Versailles and the remilitarization of the
Rhineland.13 He was fascinated by the fact that the
world was entering into a new phase of international
conflict exposing the futility of the League. The Italian
affair in Abyssinia and the outbreak of the civil war in
Spain drew his immediate attention. In pursuit of this
interest Schmitt intended to organize an Institute for
International Law in conjunction with the Italian pro—

fessor Costa Magna, a close friend of Mussolini's.l4

13Carl Schmitt, "Sprengung der Locarno—Gemeinschaft
durch Einschaltung der Sowjets," Deutsche Juristen-Zeitung,
Jhg. 41, Heft 6 (March 15, 1936), pp. 337—341.

l4"Bericht: Staatsrat Carl Schmitt," SD Hauptamt,
AKZ 4062/68, Fa 503, Bd. I, pp. 99-101, 114—115.

 

 

323

Although this never materialized Schmitt did continue
writing on various aspects of international politics.
Between 1937 and 1939 he concentrated essentially on the
concept of war and the reaction of the League to the
world crisis.15 These works were distinctly academic and
scholarly, though of a timely nature. Neither the Nazis
nor the public in general took any note of his work; out-
side the German academic world Schmitt lived for two
years in obscurity.

Until 1939 Schmitt approached international rela—
tions from the standpoint of the traditional state system,
of competing sovereign states. He had already realized in
1937 that significant changes were occurring in the tradi—
tional state system and that the existing system of
international politics was at its end; but at this point
he had no indication of what new system or order would
replace it. Then Hitler began dismantling the existing
state system in central and eastern Europe. In a speech
before the Reichstag on February 20, 1938 Hitler promised
to protect German minorities outside the Reich. By mid—
March the Nazis achieved the Anschluss with Austria and

Hitler started preparations for his demands on

Czechoslovakia. Subsequently, the Munich agreement of

15Carl Schmitt, gig Wendung EBB diskriminierenden
Kriegsbegriff (Munich, 1938), and "Ueber das Verhaeltnis
der Begriffe Krieg und Feind (1938)," Positionen und
Begriffe, gp. git., Pp. 244-251. _——

 

 

324

September 1938, which ceded the Sudetenland to Germany,
was violated by Hitler's occupation of Bohemia and Moravia
on March 15, 1939. The pattern for Germany's further
expansion and hegemony in central and eastern Europe was
now clear. For Carl Schmitt it signified the introduction
of a new concept into international law and politics to
replace the defunct state system. It was the concept of
Grossraum.

The notion of Raum (space) had been a widely dis—

 

cussed topic among German political theorists for over two

decades. In a general sense the concept of Raum was

 

already inherent in the Mitteleuropa theories of Friedrich

Naumann and others, so popular during World War I. Raum

 

theory was first established as an acceptable field of
study when in the twenties it became an integral part of
the developing science of geo-politics. The adherents of
the geo-political school emphasized the influence of
geography on politics, particularly concerning economic
and strategic considerations. Naturally the type and

size of a Raum was a crucial factor in any geo—political

 

study. The leading proponent of this new science was
Karl Haushofer who, as a professor of geo—politics at

the University of Munich, founded the Zeitschrift fuer

 

Geopolitik in 1924. Under his sponsorship the field grew
in importance until it acquired a good deal of respecta—

bility among German academicians. Those receptive to

 

 

 

325

geo-political ideas also included liberals such as Adolf

Grabowsky, a professor at the Hochschule fuer Politik,

 

who clearly acknowledged the significance of concepts like

Raum in understanding politics.16

 

But Haushofer's intentions went far beyond these
legitimate scholarly and theoretical pursuits; he wanted
geo—politics to serve as the basis for a German expan-
sionist policy. It was from Haushofer, the mentor of
Rudolf Hess, that Hitler plagiarized the idea of
Lebensraum.l7 At first Haushofer saw Lebensraum in terms
of the right of a country to acquire territory commen-
surate with the needs of its population. After the Nazis
assumed power he directed the Institute for Geo-politics
and began mouthing the National Socialist doctrine of

18

biological racism as a counterpart to Lebensraum. In

l6Adolf Grabowsky, "Staatserkenntnis durch raeum—

liches Denken," in Politik als Wissenschaft: Zehn Jahre
Deutsche Hochschule fuer Politik, ed., Ernst Jaeckh
(Berlin, 1931), pp. 34—54, and Politik (Berlin, 1932),

pp. 30, 45.

17Norman Rich, Hitler's War Aims: Ideology, the
Nazi State, and the Course of Expansion (New York, 1973),

 

18See: Karl Haushofer, Weltpolitik von heute
(Berlin, 1935), especially the sections on face, pp. 211-
215, and Macht und Erde: III, Raumueberwindende Maechte
(Leipzig/Berlin, 1934), ed., Karl Haushofer. His son, who
was shot for his involvement in the conservative resistance
to Hitler, also wrote extensively on Raum theory and geo—
politics. See: Albrecht Haushofer, £33 Problematik des
Raumbegriffs (Heidelberg/Berlin, 1935), and Allgemeine—
politische Geographie upd_Geopolitik (Heidelberg, 1944).

 

 

 

326

doing so he distorted the promising and quite reputable
science of geo—politics.

Thus, Schmitt's audience was well prepared when on
April 1, a few weeks after Hitler's Reichstag speech, he
first presented his own concept of Grossraum at a lecture
before the Institute for Politics and International Law at
Kiel University. With this work he hoped to introduce the
concept of Grossraum as a principle in the science of

19

international law. In this respect Schmitt's ideas fell

into the tradition of Raum studies promoted by respected

 

German scholars since the twenties, and to whom he owed
an intellectual debt. He dissociated his concept from the
Haushofer school because for him geo-political concerns
alone, though significant, constituted no distinct polit—

20 Similarly,

ical order and, therefore, no Grossraum.
Grossraum was not synonymous with Lebensraum, or as

Schmitt called it the "demographic right" of a stronger
nation with an expanding population to make territorial

21

demands. Many of the nonracial aspects of these

demographic and geo-political concepts were closely

 

19Carl Schmitt, Voelkerrechtliche Grossraumordnunq
mit Interventionsverbot fuer raumfremde Maechte: zum
Reichsbegriff im_Voelkerrecht (Berlin, 1939), p. 8.

2°Ibia., pp- 13-16.

211bid., p. 16.

 

 

327

connected with the idea of Mitteleuropa, which he also
distinguished from Grossraum.22
Schmitt viewed a "political idea" as the essential

element in a Grossraum and that "political idea" could

never be separated from a concrete existing Raum. Each

 

Raum must have a distinct "political idea" which, carried

 

by a distinct nation, always has a specific opponent in
mind. In essence, that "political idea" would be based on
the distinction of friend and enemy. He selected the
American Monroe Doctrine as the precedent case for his
theory. The major part of the Monroe Doctrine he adopted

. . . . 23
was the nonintervention of foreign powers in a Raum.

 

Schmitt stated that the originators of the Monroe Doctrine
saw their enemy in the form of the European monarchical—
dynastic principle of legitimacy, on whose behalf European
powers claimed the right of intervention. America carried
the political idea of free and independent states opposed
to the interventionism of the European system.24 Now, the
western democracies, which used liberal—democratic and
capitalistic legitimacy principles to maintain the status
quo, were in the same situation as the former members of

22Carl Schmitt, "Reich und Raum: Elemente eines
neuen Voelkerrechts," Zeitschrift der Akademie fuer
Deutsches Recht, Jhg. 7, Heft 13 (July 1, 1940), p. 201.

23

 

Carl Schmitt, Voelkerrechtliche Grossraumordnung,

OP- cit., p. 23.
24

Ibid., pp. 33-36.

328

the Holy Alliance. Both Britain and the United States
followed a policy of universalism which included the
doctrine of intervention to introduce and protect its
principles of legitimacy. Britain maintained this policy
to protect its empire and to assure the status qgg. The
United States since Theodore Roosevelt and Wilson had
followed such a policy of universalism and intervention,
although it opposed such intervention in its own hemis-

phere or Raum.25

 

From Schmitt's point of view this system of uni—
versalism and intervention was disintegrating under the
emergence of a new Grossraum in central and eastern
Europe. A central component of this Grossraum was the
concept of Reich. A Reich served as the leading power
in an area and as the carrier of a distinct political
idea, and the Reich excluded intervention by foreign

26

powers in its Raum. The new political idea represented

 

by the Reich was introduced with Hitler's assumption of
the responsibility of protecting German minorities in
central and eastern Europe. The protection of minorities
existing under the universalism and interventionism of
Versailles and the League was ended in this area of Europe.

More precisely, the political idea represented by the

251bid., pp. 53—54.

26Ibid., p. 69.

 

 

329

Reich included uniting German minorities with the new
German Reich, so as to assure their protection and at the
same time assure the development of the national unity of
the German people by preventing their assimilation into
other national groups. Every national group in this area,
German and non-German alike, would be allowed to live as
individual national entities, though under German
hegemony. And, in effect, the Reich would determine the
future political order of this area, to the exclusion of
foreign powers. Grossraum and Reich, however, were not
synonymous, since not every state or national group within
a Grossraum was a part of the Reich. The Reich was merely
the dominating political unit in an area. Neither was the
German Reich an empire, for empire usually presupposes
universalism and assimilation of nations, and the Reich
would supposedly respect the existence of each individual
national group living side by side. Germany's Reich in the
middle of Europe would stand between the universalistic
and national assimilating liberal—democratic western
powers and the universalism of the world revolutionary
Bolshevik east. In this respect, the new concept of a
concrete Grossraum took its place between the traditional
concept of law between individual sovereign states and the

concept of world universalism.27

27Ibid., pp. 70—71, 86-89.

 

 

 

 

 

 

330

No doubt the foreign policy successes of Hitler in
central Europe had pleased Schmitt. For two decades his
intense nationalism manifested itself in a harsh critique
of Versailles and he was now elated over the reemergence
of a strong Germany playing a new historic role. His life-
long goal of a strong internally unified Germany capable
of distinguishing friend and enemy, and overthrowing the
burdens of the Diktat had become a reality. But it should
not be construed that Schmitt advocated war or the Nazi
expansion over all of Europe. His immediate concern
involved the changes in central Europe and its effect on
international law. Schmitt provided no predetermined
theories or plans, rather he analyzed the changes that had
already taken place in the concrete political situation.
Only after the Nazis conquered most of Europe did Schmitt
expand his theory from a central and eastern European

centered Raum to a "continental European" Grossraum con—
28

 

cept. The essential problem in each case remained the
same—-Grossraum versus universalism.

One cannot deny that Schmitt attempted to justify
German hegemony in Europe once that was an accomplished

fact. The emphasis he placed on noninterventionism, for

instance, was definitely related to the problem of

 

28Carl Schmitt, "Raum und Grossraum im Voelker—

recht,“ Zeitschrift fuer Voelkerrecht, Bd. XXIV (1941),
P. 168.

 

 

331

potential opposition that the Germans might face as a con-
sequence of their recent foreign policy. When Schmitt
first introduced his theory before the outbreak of the war
he was obviously concerned with the possibility of
British, French, or Russian intervention to counteract
German moves in central Europe. During the early years

of the war the decisive element became the potentiality

of American intervention in the conflict. His perspective
in these years was reminiscent of the Mitteleuropa pro—
grams that followed the early German successes in World

War I. Although reluctant to go to war in 1939 some con-
servative nationalists, like Schmitt, were most willing to
accept the fruits of victory and quickly turned their
attention to the question of dealing with the newly
acquired territories. As the war progressed Schmitt
actually came to believe that the world was being divided
into larger political units or Grossraeume. The United
States, the British Empire, the Soviet Union, and the new
Japanese Empire each had their spheres; it appeared that

Germany's Raum would be Europe. That he tried to furnish

 

some overall theoretical framework for this process is
self—evident.

This is not to say, however, that he provided the
theoretical foundations for National Socialist expansion
in Europe. Nazi foreign policy aims had been formulated

long before he had begun to deal with Raum theory, and

 

332

his work quickly came under sharp criticism from the
National Socialists. As the Nazis pointed out, his theory
was nothing more than a general concept containing no
description of the actual internal nature or precise
political order of the Grossraum. Schmitt simply intro-
duced a new idea into international law which he believed
conformed to the reality of the newly developed concrete
situation in Europe. The further refinement of the
theory was a future goal he set for German legal and
political science.

The actual theoretical foundations of Hitler's
expansionary policies stemmed from other sources, and for
the most part from the Nazi racial doctrine of Lebensraum.

This doctrine had already existed in Mein Kampf and had

 

been expanded by Nazi racial theorists like Rosenberg;

it received considerable reinforcement from the Nazified
geo-political school of Haushofer. Most important for the
Nazis was always the biological concept of race and the
eventual hegemony of the Germanic or aryan race in Europe.
Although he mentioned national groups, Schmitt's theory
never encompassed any form of biological racism. And he
had disregarded Lebensraum as the essential element of
Grossraum when he distinguished his concept from that of
the theory of “demographic rights" to territory, albeit

he would never criticize openly, or even handle, the

 

 

333

Nazi doctrine of Lebensraum. He had intentionally avoided
dealing with any Nazi theories since his rebuke in 1936.
Considering his public isolation over the past two
years Schmitt never expected his theory to attract any
attention outside academic circles. In his usual style he
had selected a timely theme for his lecture at Kiel, with
no idea that it would once again bring his name into the
public arena. As it turned out Schmitt's lecture appeared
so relevant that several German newspapers, including the

prestigious Frankfurter Zeitung, published articles

29 With Hitler's

describing his new Grossraum theory.
recent territorial acquisitions still dominating the
European scene, the foreign press also took note of

Schmitt's theory. Two British papers, the Times and the

 

Daily Mail, presented Schmitt as the theorist behind

 

Hitler's expansionary policy. On April 5, the Daily Mail

 

 

reported that, "Herr Hitler and Professor Schmitt will
now, it is believed, devote themselves to completing the
framework of this conception, and the Fuehrer will soon

give it to the world as his justification for Germany's

29"Das Reich im Voelkerrecht, Ein Vortrag Carl
Schmitts in Kiel," Frankfurter Zeitung, No. 172 (April 3,
1939), "Grossraeumiges Denken. Professor Carl Schmitt
sprach in Kiel," Deutsche Allgemeine Zeitung, No. 158
(April 3, 1939), Karl Heinz Bremer, "Voelkerordnung und
Voelkerrecht. Arbeitstagung des Institutes fuer Politik
und internationales Recht in Kiel," Muencher Neueste
Nachtrichten, No. 116 (April 26, 1939).

334

relentless expansion."30 That report appeared verified

when on April 28, Hitler spoke before the Reichstag and
responded to President Roosevelt's message asking for
guarantees against further aggression. In his reply
Hitler referred Roosevelt to the Monroe Doctrine and

stated that a similar doctrine applies to the interests

31

of the German Reich in Europe. Of course, the works of

Carl Schmitt were unknown to Hitler. Probably one of
Hitler's aides provided him with the idea of a European
Monroe Doctrine then circulating in the press. Conse—
quently, the concepts of a European Monroe Doctrine and
Grossraum were to become a topic for discussion among
German theorists until the end of the Third Reich. Owing
to this publicity the Kiel Institute published Schmitt's
lecture as a separate book which went through several

editions, whereas every other conference lecture was

30The Times reported on April 5, 1939 that
"Hitherto no German statesman has given a precise defini-
tion of his aims in Eastern Europe, but perhaps a recent
statement by Professor Carl Schmitt, a Nazi expert on
constitutional law, may be taken as a trustworthy guide."
The Daily Mail made similar claims when it noted that,
"Herr Hitler's 'key' man in this policy is Professor
Carl Schmitt, middle—aged and handsome, who is the leading
international lawyer in Germany." See: Joseph Kaiser,
"Europaeisches Grossraumdenken: Die Steigerung geschicht—
licher Groessen als Rechtsproblem," in Epirrhosis:
Festgabe fuer Carl Schmitt, 92. gig., pp. 538, 542.

31Ibid., p. 543, and Alan Bullock, Hitler, A
Study in Tyranny (New York, 1964), pp. 500—503.

 

 

 

 

 

335

published in a collected work and received no further
attention.

Outwardly it appeared that Carl Schmitt had
returned to the Nazi fold as their theorist of expansion.
As Germany expanded throughout Europe the Schweizer
Weltwoche compared Schmitt's role in Nazi Germany to that
of Rousseau's for the French Revolution.32 In reality
the intellectual had not returned to politics, and
Schmitt's precarious position in Nazi Germany had not
changed. The antagonisms between Schmitt and the party
never lessened in intensity and there was never any
attempt from either side to bridge the rift. After
Hitler's speech of April 28, Schmitt received a phone
call from Hans Frank who informed him that the Fuehrer
prided himself on his originality, and warned Schmitt
that he should remain silent about the true origins of
the concept of a European Monroe Doctrine.33 Schmitt
heeded this advice and made no effort to play again the
role of Nazi Kronjurist.

Carl Schmitt was still in the position of the
intellectual in a totalitarian society whose intellectual

capacities were no longer required. During a discussion

with Ernst Juenger in Paris in the fall of 1941, Schmitt

32Schweizer Weltwoche (December 6, 1940), as cited
in Kaiser, "Grossraumdenken," 9p. cit., p. 543.

33Schmitt Interview, November 22, 1972.

 

336

compared his own situation to that of Captain Cereno in
Melville's novel Benito Cereno.34 In the novel Benito
Cereno was a Spanish captain of a slave ship which, after
a revolt, came under the control of black slaves. The
slaves then forced Benito Cereno to sail the ship towards
Senegal. During an encounter with an American ship the
peculiar behavior of Benito Cereno was observed by the
American captain. Unaware of the slave revolt the American
could not understand the unusual behavior of Benito Cereno
and the activity on board his ship, because the Spanish
captain retained the outward appearance of still being in
control of his vessel. Only after Benito Cereno escaped
and explained that he was merely a figurehead controlled
by the slaves did the American comprehend the affair. The
myth of Benito Cereno was adopted by Schmitt to explain
his own helpless situation after 1936. Contrary to the
outward appearance he never had any control over the
course of political events in Nazi Germany.

Since the Fuehrer's proclamation of a European
Monroe Doctrine, and particularly once the Germans had to
administer the large European land mass they had conquered,

Grossraum became an attractive concept to many writers.35

34Ernst Juenger, Strahlungen I (Munich, 1964),

p. 65.

35Carlo Costamagna, "Autarkie und Ethnarkie in der
Voelker— und Staatsrechtslehre der Neuordnung," Zeitschrift
der Akademie fuer Deutsches Recht, Jhg. 8, Heft l3

 

 

337

The main problem with Schmitt's theory from the point of
view of Nazi theorists was its nonracial nature and the
fact that it neglected the idea of Lebensraum. Nonethe-
less, several racially oriented Nazi theorists found the
concept useful and around 1940 began working on the theory
of a "Biological Monroe Doctrine." The leading exponents
of this doctrine were Werner Daitz, a former associate of
Rosenberg, Dr. Werner Best, former legal adviser to Hitler
and the Gestapo legal expert who later became Reich
plenipotentiary ruler of Denmark, and Schmitt's SS opponent
at the University of Berlin, Reinhard Hoehn.

Beginning in 1941 Best and Hoehn co—edited a new

journal entitled Reich, Volksordnung, Lebensraum to

 

develop further the theory of a biological Grossraum.
Using Schmitt's concept as a point of departure these
theorists proceeded to criticize his work for its
abstractness, and its lack of substance and racial content.
They attempted to remove the inadequacies of the theory

by remolding it into a program for racial order and rule

(July 1, 1941), pp. 201-203, Hermann Jahrreiss, "Wandlung
der Weltordnung: Zugleich eine Auseinandersetzung mit der
Voelkerrechtslehre von Carl Schmitt," Zeitschrift fuer
oeffentliches Recht, Bd. XXI (1941), pp. 513—536, Gustav
Schmoller, "Der voelkerrechtliche Status der Vereinigten
Staaten nach Inkrafttreten des Englandshilfegesetzes,"
Zeitschrift der Akademie fuer Deutsches Recht, Jhg. 8,
Heft 10 (May—15, 1941), pp. 153-155, Ernst Wolgast,
"Grossraum und Reich: Bemerkungen zur Schrift Carl
Schmitts: 'V0elkerrechtliche Grossraumordnung," Zeitschrift

fuer oeffentliches Recht, Bd. XXI (1941), pp. 20-31.

 

 

338

36

in Nazi occupied Europe. Never straying from the

official Nazi ideology they tried to present "Grossraum as

37

Lebensraum." Hoehn initiated a program at his Institute

for Government Research in Berlin to study the problems

38 For similar purposes

of Grossraum administration.
Daitz helped organize the Society for European Economic

Planning and Grossraum Economy in 1941. Daitz, like other
Nazi theorists, believed that "the coming order-principle
of the world, therefore, will consist of the proclamation

"39 These beliefs and

of biological Monroe Doctrines.
programs never materialized and Grossraum order never
extended beyond this small group of theorists and this

brief theoretical stage.

36Werner Best, "Voelkische Grossraumordnung,"
Deutsches Recht, Jhg. 10, Heft 25 (June 22, 1940), pp.
1006-1007, Roger Diener, "Reichsverfassung und Grossraum-
verwaltung im Altertum," Reich, Volksordnung, Lebensraum:

 

_—__——_—_—_._____.—_____

Bd. I, Jhg. I (1941), pp. 177-229, Guenther Kuechenhoff,
"Grossraumgedanke und voelkische Idee im Recht,"
Zeitschrift fuer auslaendisches oeffentliches Recht und

______—___—_——_—________——___

Voelkerrecht, Bd. XII, No. I (September, 1944), pp. 34-82.

37Reinhard Hoehn, "Grossraumordnung und Voelkische
Rechtsdenken," Reich, Volksordnung, Lebensraum, Bd. I,
Jhg. I (1941), p. 287, Hans Spanner, "Grossraum und Reich:
Bemerkungen zu Band I der Zeitschrift 'Reich, Volksordnung,
Lebensraum," Zeitschrift fuer oeffentliches Recht,

Bd. XXII (1942), p. 34.

 

 

38Institut fuer Staatsforschung, Geheimes
Staatsarchiv, Rep-76, No. 46, pp. 339-341.

39Max Weinreich, Hitler's Professors: The Part of

_._.__—...__

Scholarship 1p Germany's Crimes against the Jewish People
(New York, 1946), p. 125.

 

 

339

Carl Schmitt continued to write and lecture on
Grossraum and related topics until 1943. He never
addressed himself to the problems the Nazi theorists saw
in Grossraum, nor attempted to compromise his theory with
Nazi racism. Although he published three articles in

Das Reich, this did not signify a change in party policy
40

 

toward Schmitt. Goebbels had started Das Reich as a

 

weekly in 1940 for purposes of psychological warfare. To
strengthen public morale Goebbels utilized the talents of

numerous writers from the inner—emigration such as the

poet Oskar Loerke and the Christian writer Gertrude Lefort.
Within party circles Schmitt was still considered as a

representative of the most dangerous form of Catholicism,

and condemned on ideological and political grounds.41

Even his Grossraum theory remained suspect by some Nazis

and was considered to have only limited value.42 He still

suffered the fate of the intellectual whose ideas are

never accepted in pure form, but whose ideas, when useful

40Carl Schmitt, "Die Raumrevolution: Durch den
Totalen Krieg zu einem totalen Frieden," Das Reich, No. 19
(September 29,1940), p. 3, "Das Meer gegen *das Land,"
No. 10 (March 9, 1941), pp. l7-18, "Beschleuniger wider
Willen oder: Problematik der westlichen Hemisphere,"
(April 19, 1943).

41NSDAP, Beauftragte des Fuehrers fuer die
Ueberwachung der qesamteng geistigen und weltanschaulichen
Schulung und Erziehung der NSDAP, Reichsleitung (Zentral-
registratur), Institut fuer Zeitgeschichte, Munich, MA—129/
5, Rosenberg- Akten, 67, 50343.

 

 

 

 

42

Ibid., MA—129/3, Rosenberg-Akten, 62, 47566.

 

 

 

340

to others, are plagiarized and distorted for the propaganda
and political needs of the moment.

Since 1936 Schmitt lived in an atmosphere of
insecurity, never knowing when he might be devoured by the
fickle Leviathan he obeyed. In the end Goering's cherished
immunity for his Counsellors sufficed. But Schmitt could
never be sure. Isolated from his friends in the party he
found little friendship in the circles of the inner—
emigration. Mistrusted by all, he was too insincere for
the party and too close to the party for others. Even
among his closest friends he was viewed as politically
unreliable. The Schmitt—Popitz relationship was a typical
point. Schmitt had maintained a close personal friend~
ship with Johannes Popitz since 1929 and throughout the
Third Reich. Socially both families were most intimately
related, and in the midst of the Allied bombing of
Berlin, Schmitt and Popitz sat together night after night
in shelters discussing various subjects. When the Allies
bombed Schmitt's home he moved in with the Popitz family

43

for a short period. During all of this time Popitz never

allowed Schmitt to discover that he was working with the

resistance.
After the July 20, 1944 attempt to assassinate

Hitler, Popitz was arrested, tried and hanged. Upon

43Schmitt Interview, November 22, 1972.

 

 

 

341

hearing the news of Popitz's arrest Schmitt sat silent,
shocked at the fate of his friend and his own ignorance

44 He also feared that the Nazis

of the entire affair.
might perceive him as a party to the conspiracy, because
of his closeness to Popitz. Subsequently, in his report
to Hitler, Kaltenbrunner did mention Schmitt‘s name; but
his life was not threatened. The aftermath of the July
20th incident merely caused Schmitt more anxiety and
uncertainty. Popitz had broken the Hobbesian covenant of
protection and obedience in resisting the all powerful
Leviathan. Schmitt never disobeyed the Leviathan and

it rewarded him with the protection of his physical
existence.

With the final collapse of the Third Reich
sovereignty passed to the Allied victors, who would now
distinguish the friend from the enemy. The Russians
arrested, interrogated and released Schmitt. Unlike the
Russians, who, Schmitt claimed, treated him as a gentle-
man, the Americans later interned him for a year.45
Before the Americans arrested Schmitt, he wrote a

Gutachten in which he challenged the legality of trying

individuals on the grounds of conducting a war of

44Author's interview with Professor Heinrich
Popitz, son of the former Prussian Finance Minister
Johannes Popitz, Freiburg, March 20, 1973.

45Schmitt Interview, July 13, 1973. Schwab,
The Challenge, op. cit., pp. 17-18.

 

 

342

aggression.46 War, for Schmitt, was a natural function

and phenomenon of international politics. Since his
earliest writings on the problem he had always rejected
such concepts as just and unjust wars and wars of aggres—
sion. He held this position mainly because the eternal
problem of, Who decides? was never solved. He was real-
istic enough to recognize, however, that political power
now rested with the Allies who, as sovereigns, could decide
legality and illegality, life and death.

Owing to his notoriety and National Socialist
career the legal section of the military governor's
office took a special interest in Carl Schmitt. In March
of 1947 the Americans sent Schmitt to Nuremberg as a
potential war criminal. The Allied prosecutors believed
that Schmitt, through his Grossraum theory, had involved
himself in the planning of an aggressive war. After
several weeks of questioning Schmitt in his cell, pro-
secuting attorney Robert Kempner found no legal grounds
for charging the theorist of legality. Like Benito
Cereno, the Kronjurist had been merely a figurehead and
had played no central role in the politics of the Third
Reich. Never having been accused, Schmitt was released

in two months. Consciously aware of his own precarious

46Carl Schmitt, "Das internationalrechtliche
Verbrechen des Angriffskrieges und der Grundsatz 'nulla
poena sine lege," unpublished Gutachten (August, 1945).

 

343

position Schmitt let it be known that he would withdraw
"into the security of silence."47
Germany was in the process of another drastic

political change and its future once again remained

unknown. Schmitt had frequently lived through similar

changes before, in the Revolution of 1918, in the
Presidential System, and in the Nazi Revolution. Through
this disruptive course of German history he often felt
that his own life was endangered, as was the case during
the Communist Revolution in Bavaria, and his disconcerting
troubles with the Nazis in 1934, 1936, and 1944. Through-
out the Second World War he had been pessimistic about
Germany's future. With the end of the war he once again
faced a new insecurity. Totally disillusioned and sus—
picious, Schmitt did not return to Berlin. Instead he
retreated to Walberberg, a Dominican Cloister between Bonn
and Cologne. He fled back into the arms of the Catholic
church, to which he once attributed the role of defender
of western civilization and values.

The intellectual brilliance of Schmitt could not
be kept silent for long. While in Walberberg he already

resumed his writing and after he left the Cloister he

47Author's personal interview with Robert M. W.

Kempner, former attorney for the prosecution at Nuremberg,
May 7, 1973. See also Robert M. W. Kempner, "Hat Profes-
sor Carl Schmitt die Jugend vergiftet?" 22E Dritte Reich
fig Kreuzverhoer (Munich, 1969).

 

 

344

anonymously published his first post—war works in its

48

journal. Since then he has published over forty works

on various topics. His most recognized post-war work was
Der Nomos der Erde im Voelkerrecht des Jus Publicum

Europeam. Schmitt's Der Nomos had actually been started

 

during the war and dealt with the development of the
traditional state system in Europe and its final demise.
He would never again make another attempt to
involve himself in politics, though he would follow
political developments with the utmost interest. His
legacy as Kronjurist would plague him forever and, as a
result of his past misadventures, his academic career was
terminated. The life and work of Carl Schmitt was to
become one of the most controversial subjects in twentieth—
century German history. Recognition of his brilliance and
originality was to be counterbalanced by critical attacks,
moral indignation, and vilification of his thoughts and
activity, often buttressed by a deep emotional hatred.
After his short stay in Walberberg he moved to his
birthplace in Plettenberg, where he resided ever since.
Schmitt had not changed his basic method of analysis or

thought, and he still prided himself on most of his

48Carl Schmitt, "Donoso Cortes in gesamteuropae—
ischer Interpretation," Neue Ordnung, Jhg. 3, Heft I
(1949), pp. 1-15, and "Francisco de Vitorio und die
Geschichte seines Ruhmes," Neue Ordnung, Jhg. 3, Heft 4
(1949), pp. 289-313. Both articles appeared anonymously
owing to Schmitt's immense unpopularity in the immediate
post-war years.

 

 

 

345

political and legal writings. Following decades of post—
war denunciation the publicity surrounding his eighty-
fifth birthday on July 11, 1973, showed a changing
attitude towards him. He was no longer condemned out-
right; instead he was granted the benefit of the doubt and
handled as a highly controversial thinker. Although com-
forted by this changing attitude, Schmitt still viewed
himself as the intellectual in exile, like Machiavelli
and Hobbes, suffering the fate of the intellectual who
dared address himself to contemporary political problems.
Carl Schmitt calls his house, situated between the peace—
ful mountains of the Sauerland, "San Casciano."
Machiavelli lived at San Casciano while in exile after

losing favor with the Medici family.

 

 

EPILOGUE

Carl Schmitt will probably continue to be a con—
troversial subject, even after we clarify his ideas and
bring to light the actual nature of his political activity.
In a certain sense he is a very elusive figure. He wrote
so much, and on such a variety of subjects, that differing
interpretations of his ideas are an expected consequence.
Because the career of this enigmatic thinker extended
through four distinct political systems Schmitt's changing
political loyalties further complicate the problem.

Schmitt was a man of many different pasts.

Gradually he alienated one political faction
after another until no group would accept him as their own.
During the early Republic he was hailed as a great
Catholic thinker. By the end of Weimar the Center Party
attacked him as the advocate of constitutional relativism
and dictatorship. Shortly thereafter the German emigres
criticized him for his role as the Kronjurist of the
Third Reich. In turn the National Socialists condemned
him as anti—Nazi and as a representative of the most dan-

gerous form of political Catholicism. After the Second

346

 

 

347

World War the stigma of his National Socialist past would
assure his isolation from public and academic life.

A certain understanding of Schmitt's ideas and
political behavior can be acquired by studying the inter-
action between his basic political philosophy and the
circumstances he confronted. At times, he was motivated
by self-interest. Yet in most cases, sincere political
convictions, and what he believed to be political realism,
determined his position. Professor Ulrich Scheuner has
suggested to this author that Carl Schmitt was a brilliant
thinker who, though fascinated by the "aesthetics of
power," remained unaware of the true functioning of power
politics. Schmitt's fascination with the "aesthetics of
power" was undoubtedly a counterpart to the almost obses-
sive attention he paid to the actual workings of power
politics. Few thinkers were so conscious of the harsh
realities of political life as Schmitt, who had proudly
declared himself Machiavelli's heir and proclaimed Thomas
Hobbes as his intellectual brother. Although certainly
not ignorant of the real workings of power politics,
Schmitt's fault lay in his overestimation of his own
potential political influence and importance. The keen
Sense of political realism so characteristic of his
writings, ideas, and instincts was counterbalanced by his
own naive belief that, through his ideas and his advice

to political leaders, he could influence political

 

348

developments as he desired. He failed to recognize that

in the political arena his ideas would be used and dis-
regarded at the convenience of the powerbrokers he served.
Consequently, his political career led only to banishment.
Like his intellectual predecessors, Machiavelli and Hobbes,

Carl Schmitt became an object of contempt.

 

 

 

 

B IBL IOGRAPHICAL ES SAY

 

BIBLIOGRAPHICAL ESSAY

The available information on Carl Schmitt provides
a relatively accurate account of his ideas and activities.
Not only are his ideas clearly expressed in a wealth of
publications, but these works can be supplemented with
documentation from public archives, personal interviews,
and the information given to certain researchers by
Schmitt himself. Nonetheless, the historian who attempts
to acquire a comprehensive understanding of Schmitt will
immediately encounter several difficulties. He will dis—
cover that while he has a vast amount of source material
at his disposal, on which he could base numerous studies,
the sheer quantity of sources makes mastery of this sub—
ject a long and demanding process. At the same time the
historian will realize that he is deprived of one of the
most crucial sources of information, namely Schmitt's
personal papers, and until these papers are opened to
scholars a final definitive study on the life and work of

this perplexing jurist cannot be written.

Carl Schmitt Interviews and Personal Papers

Some of the most valuable sources utilized in the

above study were my interviews and correspondence with

349

 

350

Carl Schmitt. For rarely are historians fortunate enough
to confront and question directly the subject of their
research, an experience that is both personally rewarding
and academically fruitful. These interviews were con-
ducted on November 22 and 23, 1972, and on July 13, 1973,

a few days after Schmitt celebrated his eighty—fifth
birthday. This personal access to Schmitt allowed me the
opportunity to acquire insights into aspects of his person—
ality and viewpoints that are not easily discernible from
written records. He spoke freely on all topics, except

the anti~semitic issue, clarifying his ideas and expounding
upon his work and political behavior. Aside from providing
important biographical and factual information, Schmitt
also brought the Weimar and Nazi eras to life through his
vivid depiction of historical personalities and situations.
Of central importance to my research were his answers to
specific questions concerning his actual political moti-
vations and activities. I also relied upon the Schmitt
interviews conducted by Dieter Groh and Klaus Figge in,
"Zeitgenossen," Suedwestfunk, Zweite Program, 6 p.m.,
February 6, 1972, and by Ansgar Skriver in, "Hitlers
Machtergreifung vor 40 Jahren im Gedaechtnis von heute:

Eine zeitgeschichtliche Befragung," Westdeutscher Rundfunk,
Hauptabteilung Politik, Zweite Program, 8:45 p.m.,

January 30, 1973, pp. 11, 12, l3, 18, 38.

 

351

Naturally this author was not so credulous as to
accept Schmitt's explanations without critical evaluation.
The problems of memory, bias, and an aging man's desire
for vindication were considerations to which I paid
special attention. Information that either appeared
implausible or could not be supported by documentation
was not included in this study.

Although I did not have access to Schmitt's per—
sonal files he did furnish me with some of his papers and
others were provided by George Schwab of The City College
of New York. These documents have not previously been
examined by scholars and copies are in my possession.
When combined with published works and archival documents
these papers present a new perspective on Schmitt's life
and activities and on the changing manner in which his
work has been perceived over the decades. Several letters
of the period 1929—1932 from Colonel Erich Marcks, State
Secretary Zweigert, and Otto Meissner, clearly connect
Schmitt with the Schleicher coterie, and show the use of
his ideas by those involved in the presidential system.
Another series of letters refutes Moritz Julius Bonn's
explanation of Schmitt's transfer to Cologne University in
1932. Personal letters from Arnold Brecht, Theodor Heuss,
and Franz Neumann also tend to present Schmitt in a dif-
ferent light from the descriptions of him found in many

secondary accounts. One interesting document is a letter

 

352

dated April 22, 1933 in which Martin Heidegger urges
Schmitt to cooperate with the new regime.

Schmitt also provided three sets of personal
papers which contain his explanation of his affiliation
with the Nazis. These are in the form of long written
responses he made during the interrogations in his cell
at Nuremberg in 1947, and they do not appear in any of the
Nuremberg documents. Since he wrote these papers while
incarcerated they must be weighed in light of his pre—
carious situation as a potential war criminal. But when
corroborated by other documents and our general knowledge
of the Nazi experience they are an invaluable source. In
the first set, "Beantwortung der Frage: Wieweit haben Sie
die theoretische Untermauerung der Hitlerischen Gross—
raumspolitik gefoerdert?" (Nuremberg, April 18, 1947),
Schmitt disassociates himself from Nazi theories on foreign
policy. The second set, "Beantwortung des Vorwurfs: Sie
haben an der Vorbereitung den Angriffskrieges und der damit
verbundenen Straftaten an entscheidender Stelle mitgewirkt,"
(Nuremberg, April 28, 1947), presents substantial infor—
mation on his offices and activities in the Third Reich.
As indicated by the third set, the Nuremberg prosecutors
were quite interested in Schmitt's analysis of the Nazi
regime. In, "Staatsrechtliche Bemerkungen zu der mir
gestellten Frage: Die Stellung des Reichsministers und

Chefs der Reichskanzlei," (Nuremberg, April 28, 1947),

 

353

Schmitt held that the Reich Ministers were responsible

for their actions. He also provided the prosecutors with
additional information on this subject, such as an expla-
nation of "Warum sind die Staatssekretaere Hitler gefolgt?"
(Only a part of this document was made available to me by
Robert M. W. Kempner.)

These sources are indicative of the type of infor—
mation found in Schmitt's personal files. Once they are
made available his papers will not only be an invaluable
source for studying his own career but also for the Weimar
and Nazi periods in general. Together with his corres—
pondence with countless historical figures, two signifi-
cant sources will be his extensive notebooks and the diary,
now multivolume, which he has kept since before the First

World War.

Public and Archival Documents
Of the accessible material on Schmitt the least

utilized have been archival sources. Only two other
authors, Lutz-Arwed Bentin and Heinrich Muth (cited
below), have ever attempted to use these important docu-
ments, and both relied upon a very limited part of this
information. The general neglect of these sources can be
attributed to the belief on the part of many German
scholars that since Schmitt's real significance lies in
the realm of theory and ideas one need only consult his

published works. Furthermore, many German scholars have

 

 

354

expressed doubt that archival research would yield any new
or significant information, an attitude reinforced by the
fact that there existed no Schmitt Nachlass and his name
was usually not mentioned in the archival indices. Part
of the problem is that no single collection holds any sub—
stantial amount of material directly concerning Schmitt.
But by combining the few documents found in each collec-
tion one begins to develop a perspective on Schmitt and
his activities that is quite different from the estima-
tions of him presented in works which are based solely on

published materials.

Archival Guides

For a list of the various archives in Germany and
Austria one should consult, Verzeichnis ger Archivare an
deutschen End oesterreichischen Archiven, ed., Verein
deutscher Archiv, 10 Ausgabe (Wiesbaden, 1968). The most
valuable guides to archival documents related to Carl
Schmitt and his times are: Hans Branig, Ruth Bliss, and
Winfried Bliss, ed., Uebersicht ueber die Bestaende des

Geheimen Staatsarchivs in Berlin-Dahlem, Teil I,
Provinzial— BBQ Lokalbehoerden (Grote, 1966), and Teil II,
Zentralbehoerden Andere Institutionen Sammlungen (Grote,
1967); Friedrich Facius, Hans Booms, and Heinz Boberbach,

ed., Boppard, 1968); Wolfgang A. Mommsen, ed., Die

Nachlaesse in den deutschen Archiven (Boppard, 1972);

 

 

355

der Bundesrepublik Deutschland (Boppard, 1969). Regarding
the holdings in the German Democratic Republic one should

refer to, H. Loetzke, ed., Uebersicht ueber die Bestaende

 

deg Deutschen Zentralarchivs Potsdam (Berlin, 1957), and

H. Herricht, "Die Nachlaesse im Deutschen Zentralarchiv II,
Merseburg,“ in Archivmitteilungen, Jhg. 1954, No. 1,
though both of these are certainly dated. Finally, no
account of the documentation on this period would be
complete without reference to the captured German war
documents. The best guides to this material are: The
American Historical Association Committee for the Study

of War Documents, Guides to German Records Microfilmed at

 

 

___—____.—.________._

Human Resources Research Institute (Maxwell Air Force
Base, Alabama, 1952), and Supplement to the Guide to the

Captured German Documents (Washington, D.C., 1959).

Koblenz

The files of the Bundesarchiv in Koblenz are
essential to any study of the Weimar and Nazi periods. An
important source concerning Schmitt's political activity
under the presidential system are the records of the

Reichskanzlei, 1919—1933, R—43I: "Kabinettsbildung, 1932,"

 

356

and "1933-35," Nos. 1309-1310; "Kabinettsprotokolle, Juli
1932—Sept. 1932," No. 1457; "Reichsverfassung, 1919-1926,"
and "1927-1933," Nos. 1864—1865; "Ermaechtigungsgesetz,

1923-1931," No. 1869; "Art. 48 der Reichsverfassung, 1924-

1930," No. 1870. Reichskanzlei, 1933-1945, R-43II,

 

 

covers the Nazi era, with specific information on Schmitt
in, "Reichsreform und Neugliederung des Reiches, 1933-
1934," No. 495; and "Gleichschaltung der Laender mit dem
Reich," No. 1309. On the Nazi Prussian State Council see:
R-43I, "Akten betreffend Preussischer Staatsrat," No. 2300.
Additional material in the Bundesarchiv on Schmitt
and the Weimar Republic includes: Stellvertreter deg
Reichskanzlers, Vizekanzlei yen Papen, R—53, No. 77, Bd. 3,
which holds some correspondence between Schmitt and Papen;
Politisches Kolleg, R—118, provides an indication of the
limited relationship of Schmitt to conservative revolu-
tionary organizations; and on the case of Prussia versus
Reich see: "Handakten Dr. D. Arian, Ministerialrat
Verfassungsstreitsache der Laender Preussen, Baden und
Bayern gegen das Deutsche Reich betr. Verordnung des
Reichspraesidenten vom 20.7.1932 vor dem Staatsgerichtshof,"
Kleine Erwerbungen, No. 337-1. Relevant collections on
the Nazi period are: Reichsministerium deg Innern—
Staatssekretaer Pfundtner, R—18," "Reichsreform, 1933-

1934," No. 5436; Akademie fuer Deutsches Recht, R—61,

 

 

Nos. 64, 78, 80, 84, 88, 109, 208, parts of which show

 

357

Schmitt's difficulties with the Nazis; Reichsministerium

fuer Wissenschaft, Erziehung und Volksbildung, 1934—45,

 

R—21, No. 144, has some biographical information; see

also, Hauptamt fuer Erzieher-Reichswaltung des Ngfi

 

Lehrerbundes, NS-12, here the absence of any information
on Schmitt is most interesting, considering that he headed
the jurist section of the Lehrerbund.

Several Nachlaesse in the Bundesarchiv are also
pertinent to Schmitt and his times. Some previously
neglected correspondence between Schmitt and Moritz
Julius Bonn is contained in the Bonn Nachlass, Nos. 49,
50, 56. The Nachlass of Paul Silverberg, No. 417, has
some information on Schmitt's position in 1932. An ori—
ginal typed copy of Schmitt's ”Gutachten zu der Frage der
Anwendung der Wahlordnung fuer das Saargebiet vom 29.IV.
1920 auf die Gemeinde Saarlouis-Roden," (1925), lies in
the Richard Thoma Nachlass, No. 47. A strongly worded
letter of November 11, 1931, in which Schmitt severely
criticized the opponents of his constitutional teaching,
is in the Nachlass of Friedrich Saemisch, No. 68. Although
containing no direct information on Schmitt the following
Nachlaesse and files provide a necessary background for
understanding the presidential system and the events
leading up to the end of Weimar: Wilhelm Freiherr von
Gayl, especially Nos. 4, 7, 14, 31, 36—39, 43, 45; Koch—

Weser, No. 40; Friedrich Sieling, Kleine Erwerbungen 484,

358

Nos. 1—2; Reichspraesident von Hindenburg an Dr. Friedrich
von Berg, Kleine Erwerbungen 332—1; Praelat Ludwig Kaas,

Kleine Erwerbungen 190, Nos. 2-3; Protokollentwurf ueber

 

die Sitzung der Zentrumsfraktion des Reichstags vom
23.3.1933, Kleine Erwerbungen 44; Niederschrift des

Reichstagsabgeordneten Dr. Hans Eugen Fabricius (NSDAP)
betr. Ruecktritt der Regierung von Papen Fuehlungsnahme

 

 

 

des Zentrums mit NSDAP, 17.11.1932, Kleine Erwerbungen 114;

 

Albert Grzesinski, Kleine Erwerbungen 144; Erich Zweigert,
Kleine Erwerbungen 279-2. On the Third Reich there is
the Nachlass of Hans Frank, which holds no material on
Schmitt, but clearly indicates how insignificant that
Kronjurist was to Nazi legal theory and practice. Below
is a short list of the files which hold nothing directly
related to a study of Schmitt: Eduard Spranger, Heinrich
Triepel, Hans Peters, Wilhelm Frick, Katherina Kardorff

and Siegfried Kardorff.

Munich

The Institut fuer Zeitgeschichte in Munich has

 

one of the best collections on National Socialism. In
its archives is a copy of the SS file on Schmitt,
"Sicherheitsdienst des RFSS SD Hauptamt (1936) P.A. 651C,
Schmitt, Karl Dr. Prof," AKZ 4062/68, Fa 503, Nos. 1—2.
This file is the most valuable unpublished source on
Schmitt and his place in the Third Reich. Only recently

discovered in the Wiener Library, London, this file has

 

 

359

not previously been exploited by Schmitt scholars. For
the Nazi attitude towards Schmitt see also: Rosenberg

Akten, 62, MA—129/3, 47566; 67, MA-129/5 50343; Rosenberg

 

Akten (II), 76, MA-251 (22-23); NSDAP (III), 83, MA-603,

 

20363—20382; NSDAP (IV), 24, MA—ll63, 95620—95622. An

important document on Schmitt and the Schleicher clique

in 1932 is "Auszug des Botschafters a. D. Eugen Ott an

den Sohn des Reichskanzlers a. D. v. Papen vom 26.12.1949."
Schmitt's war record is located in the Bayerischen

Hauptarchiv, Munich, Abt. II, Kriegsarchiv, "Kriegsstam-

mrollen—22," No. 89. The Rihse Sammlung, a collection of

 

newspaper articles and clippings from the Weimar and Nazi
eras, has numerous articles on Schmitt not listed in the,
standard bibliographies, and can also be found in the
Kriegsarchiv. See: "Der allmaechte Staat, Ein Referat
Prof. Schmitts vor dem Langnam—Verein," Berliner Tageblatt,
No. 557 (November 24, 1932); "Die Studentenschaft an
Professor Carl Schmitt," Koelnische Volkszeitung, No. 390
(July 21, 1933); "Carl Schmitt: Ein Lehrer der Politik

und des revolutionaeren Staatsrechts," Muenchen N.N.,

 

No. 201 (July 25, 1933); "Vom Wesen der Politik,"
Frankfurter Zeitung, No. 673/75 (September 10, 1933);
Carl Schmitt, "Richtertum und Politik," Bremer
Nationalsozialistische Zeitung, No. 335 (December 11,
1933); "Staatsrat Prof. Carl Schmitt uebernimmt die

herausgabe der Deutsche Juristen-Zeitung," Muenchen N.N.,

 

 

360

No. 142 (May 28, 1934); "Gleichberechtigung und Voelker—
recht, Staatsrat Prof. Dr. Carl Schmitt: Die innere Leere
der auf Versailles beruhenden Voelkerbundsystems,"

Voelkischer Beobachter, No. 2021 (July 21, 1934).

Berlin
The Geheimes Staatsarchiv in Berlin has a few
relevant documents on Schmitt. Noteworthy are the files

of the Hochschule fuer Politik, Rep. 303, Nos. 168-169,

 

172-173, 181, 244, 246, 265, which show Schmitt's con—
nection with that institution. Number 181 contains the
original manuscript of his "Die neutralen Groessen im
heutigen Verfassungsstaat,“ (1931). Rep. 90,
Preussisches Staatsministerium, Akten Reichs- und
Staatsbehoerden, Staatsrat, No. 13, has some information
on the Nazi Prussian State Council. There are a few
documents on Nazi Grossraum thought as expressed by

Reinhard Hoehn in, Ministerium fuer Wissenschaft, Kunst

 

 

und Volksbildung, Rep. 76, Universitaet Berlin, No. 46,

Institut fuer Staatsforschung. The Nachlass of Wilhelm

 

Drews, the incomplete portfolio of Johannes Popitz, and
Rep. 77, Preussischen Ministerium deg Innern, contain
nothing on Schmitt, though they are important for the
Study of Prussian administrative and financial affairs.
For research on Nazi party members the Document

Center in Berlin could provide a wealth of material.

Schmitt's party records are listed under various headings:

 

 

361

Personalakte (Sch—32), Party Records Central Munich,
Party Records Gau Koeln-Aechen, NSD Dozentenbund-

Reichsfachschaft I N.S. Lehrerbund. The file on Reinhard

 

Hoehn presents an interesting case on the type of SS

theorist that opposed Schmitt.

Freiburg

In the absence of any scholarly biography of the
former chancellor and general, the incomplete Nachlass of
Kurt von Schleicher in the Bundesarchiv-Militaerarchiv,
Freiburg, is crucial to any research dealing with the
presidential system. Although holding nothing specifically
on Schmitt, the background material in this Nachlass
directly relates to the issues he confronted, and it

reveals a good deal about the type of political leaders

with whom he associated.

Bonn

 

The archives of the University of Bonn have little
on Schmitt. Only four letters concerning his appointment
to that university remain in the archives of the law
faculty, and these are insignificant. Schmitt‘s pre-
World War I civil service record and a few letters are
located in the Bundesministerium fuer Justiz, Bonn,
Personal—Akten des Justizministerium, IIf., "Dr. Karl
Schmitt 1915," Litt. S. No. 4590. While there is no

information on Schmitt in the Archiv der Sozialen

 

362

Demokratie of the Friedrich Ebert Stiftung, the Nachlass

 

of Karl Severing is useful for studying the Weimar left.
Mappen 38, 63-68, deserve particular attention because
they concern the SPD outlook on Article 48 and the case
Prussia versus Reich, in which Severing was personally

involved.

Cologne

Two Nachlaesse pertinent to any study of the
Catholic Center Party and Weimar are those of Wilhelm
Marx and Karl Bachem in the Stadtarchiv Cologne, but
neither contains anything on Schmitt. The files on
Schmitt at the University of Cologne are still closed.
They could eventually shed some light on the controversy
surrounding his academic appointment there and the

removal of Kelsen shortly thereafter.

Washington

The microfilms of the captured German War Docu—
ments in the U.S. National Archives provide an abundance
of easily accessible material on the Nazi period.

Schmitt's activities in the Akademie fuer Deutsches Recht

 

 

are documented in the "Records of Nazi Cultural and
Research Institutes," A.H.A. American Committee for the
Study of War Documents, No. T-82, Roll—23, Serial—28,

Reel—806, and No. T-82, Roll-24, Serial-29, Reel-807.

363

There are several sources of information, not
available to this author, which could prove to be quite
valuable to the study of Carl Schmitt. The following
records in the Deutschen Zentralarchiv, Potsdam, could
contribute to our knowledge of Schmitt's political involve-
ments in Weimar and Nazi Germany: Praesidialkanzlei
(06.01); Reichsministerium deg Innern (15.01), Abt. I,
Verfassung, Verwaltung, Beamtentum; Reichsjustizministerium
(30.01); §§2§EI Gliederungen Edd angeschlossenen Verbaende

(53 NS—l) NSDAP—Dozentenbund; Akademie fuer Deutsches

 

Recht. Equally important are the Nachlaesse of Waldemar

 

Gurian (Notre Dame University), Johannes Popitz (family

possession), and Wilhelm Stapel (family possession).

Interviews

This author found personal interviews with
friends, critics, and students of Carl Schmitt to be very
helpful in acquiring a balanced impression of his per-
sonality and work, as well as of the controversy sur-
rounding the man. These interviews expanded my knowledge
beyond the written sources in such areas as biographical
information, historical context, and particularly the
intensity of feeling on various issues. The limitations
of memory and bias were, of course, taken into account.
Interviews included: George Schwab of the City College
of New York, a close friend of Schmitt, who published the

only book in English on the subject. Helmut Rumpf of

 

364

Bonn, who published extensively on Schmitt and was a close
personal acquaintance of his since the thirties. Ulrich
Scheuner, a prominent legal scholar at the University of
Bonn who, though no close friend of Schmitt, was able to
provide first hand knowledge of Schmitt's behavior and
the attitude towards him during the thirties and forties.
Ruediger Altmann, a former Schmitt student at the Univer—
sity of Berlin, who recounted Schmitt's Nazi entangle—
ments while at that institution. Robert M. W. Kempner, a
harsh critic of Schmitt who served as a prosecuting
attorney at Nuremberg and interrogated Schmitt in his cell
for weeks. Heinrich Popitz, provided information on the
relationship between Schmitt and his father the former
Prussian Finance Minister Johannes Popitz and also

related his recollections on Schmitt's attitude during the

late Nazi years.
Published Sources

Carl Schmitt

The most fundamental sources for scholarly research
on Schmitt are still his extensive publications. Fortun-
ately, references to most of the work by and about Schmitt
have been compiled by the Belgian scholar Piet Tommissen
and published in three exceptionally dependable bibliog-

raphies: "Carl—Schmitt-Bibliographie," Festschrift fuer

 

Carl Schmitt zum 70. Geburtstag, ed., Hans Barion (Berlin,

 

365

1959), pp. 273—330; "Ergaenzungsliste zur Carl-Schmitt—

Bibliographie vom Jahre 1959," Epirrhosis: Festgabe fuer

 

Carl Schmitt, ed., Hans Barion (Berlin, 1968), pp. 739-

 

778; Versuch einer Carl—Schmitt—Bibliographie (Duesseldorf,

 

 

1953). Since works on Schmitt are continually appearing
Tommissen is currently preparing a revised edition of his
bibliographies. Instead of duplicating Tommissen's
present citations my bibliography will include only a
limited list of the more important and the more recent
publications used in this study.

It should be noted that in the absence of a single
collection of Schmitt's works the original editions of
some of his major publications, and many of his articles,
are often difficult to locate. A complete edition of his
major works would be a most valuable contribution.
Schmitt himself has published two minor collections,

1923—1939 (Hamburg, 1940), and Verfassungsrechtliche

 

 

Aufsaetze aus den Jahren 1924—1954: Materialien zu einer

 

Verfassungslehre (Berlin, 1958). The title and the content
of each clearly reflects the differing periods in which
they were released. Both the commentary and what is
included and excluded from each collection reveals a good
deal about Schmitt's changing predicament.

The pre—World War I books of Schmitt mainly concern

legal problems. He now considers these as merely

 

 

366

"stylistic exercises,“ but indications of his later
Decisionism and political ideas are quite evident. See:
Ueber Schuld und Schuldarten--Eine terminologische

Untersuchung (Breslau, 1910), Gesetz und Urteil-—Eine

 

Untersuchung zum Problem der Rechtspraxis (Berlin, 1912),

Der Wert des Staates und die Bedeutung des Einzelnen
(Tuebingen, 1914). Schmitt's Theodor Daueblers
"Nordlicht“--Drei Studien ueber die Elemente den Geist

Edd die Aktualitaet deg Werkes (Munich, 1916), shows his
disenchantment with the war and the European intellectual
climate.

By far his most productive period was during the
Weimar Republic. Politische Romantik (Munich, 1919), is a
contentious interpretation of political romanticism that
reflects the uncertainty Schmitt felt immediately after
the war. Ede Diktatur—-yed deg Anfaengen deg modernen

Souveraenitaetsgedankens bis zum proletarischen Klassen-

kampf (Munich, 1921), established Schmitt's reputation as

 

a political analyst and served as the foundation for much
of his later work on dictatorship and Article 48. The
second edition of Ede Diktatur (1928), includes an
appendix on, "Die Diktatur des Reichspraesidenten nach
Art. 48 der Weimarer Verfassung," which is his classic
interpretation of the exceptional powers of the presi—
dent. He presents his theory of Decisionism in,

Politische Theologie—-Vier Kapitel zur Lehre von der

 

 

 

367

Souveraenitaet (Munich, 1922). Schmitt's partiality to the
Catholic political and intellectual cause pervades his

Roemischer Katholizismus und politische Form (Munich,

 

1925). The problems of Weimar parliamentary government

and democracy are confronted in, Die geistesgeschichtliche

Lage des heutigen Parlamentarismus (Munich, 1923), and

 

Volksentscheid dgd‘Volksbegehren—-§dg Beitrag egg
Auslegung deg Weimar Verfassung dgd egg gegge gee deg
unmittelbaren Demokratie (Berlin, 1927). One of his
greatest achievements, Verfassungslehre (Munich, 1928), is
still regarded as a standard work on constitutionalism.
It also presents the most systematized version of
Schmitt's ideas concerning the Weimar constitution and the
relationship between law and politics. In, Qeg Begriff
deg Politischen (Berlin, 1928), he introduces the con-
troversial definition of "political" as the distinction
between friend and enemy, a concept essential to under—
standing most of his work. Two of his more renowned
books, Qeg Hueter deg Verfassung (Tuebingen, 1931), and
Legalitaet Edd Legitimitaet (Munich, 1932), were written
in defense of the presidential system.

One of Schmitt's earliest acts of collaboration
with the Third Reich involved the policy of
Gleichschaltung between the states and the Reich, an issue

he discusses in, Das Reichsstatthaltergesetz (Berlin,

1933). Examples of his unsuccessful attempts to provide

368

the National Socialists with a theoretical foundation are:

Staat, Bewegun , Volk—-Die Dreigliederung der politischen
Einheit (Hamburg, 1933), and Ueber die drei Arten des

 

 

 

rechtswissenschaftlichen Denkens (Hamburg, 1934). In the
latter work he turns away from Decisionism and towards
"Concrete Order" theory. For his unique approach to the

problem of Grossraum, see Voelkerrechtliche Grossraum—

ordnung mit Interventionsverbot fuer raumfremde Maechte-—

 

dg Captivitate Salus--Erfahrungen der Zeit

 

1945/47 (Cologne, 1950), is a good introduction to Schmitt's
personal sentiments immediately after World War II. He

went a long way towards regaining his scholarly reputation
with Qeg gemeg deg ggde dg Voelkerrecht deg deg Publicum
Europaeum (Cologne, 1950), a classic work on the emergence
and demise of the European state system. In, Theorie deg
Partisanen—-Zwischenbemerkung egg Begriff deg Politischen

(Berlin, 1963), Schmitt addresses the post—war phenomenon

of guerilla warfare and national liberation.

Major Interpretations

The best introduction to the ideas of Carl Schmitt
is George Schwab, Tee Challenge 9g £22 Exception: 52
Introduction to the Political Ideas of Carl Schmitt between

1921 and 1936 (Berlin, 1970). This survey has laid a

 

solid foundation for a more comprehensive study. Hasso

369

Hofmann's Legitimitaet gegen Legalitaet: Der Weg der
politischen Philosophie Carl Schmitts (Berlin, 1964), is

 

a fairly accurate exposition of Schmitt's writings, but it
is based solely upon published materials. Another effort
at a comprehensive analysis of Schmitt's published works
is Peter Schneider, Ausnahmezustand und Norm——Eine Studie

egg Rechtslehre gee Egg; Schmitt (Stuttgart, 1957). Major
distortions in Schneider's book result from his method of
beginning with Schmitt's latest works and tracing his
ideas back to his earliest ones without sufficient regard

for varying contexts and periods. Unreliable is Juergen

Fijalkowski, Die Wendung zum Fuehrerstaat: Ideologische

Komponenten gg der politischen Philosophie Carl Schmitt

(Cologne, 1958), which presents Schmitt as a consistent

 

ideological advocate of totalitarianism who saw the frui—

tion of his work in the Machtergreifung of Hitler. Two

similar misinterpretations are: Christian Graf von Krockow,

 

Die Entscheidung: Eine Untersuchung ueber Ernst Juenger,

 

 

Carl Schmitt, Martin Heidegger (Stuttgart, 1958), and Karl

 

Schultes, Qeg Niedergang deg staatsrechtlichen Denkens gg
Faschismus: Qge Lehren deg Heggg Professor deg; Schmitt,
Kronjurist deg Gegenrevolution (Weimar, 1947). One of the
earliest books on Schmitt, which appeared while he was
still in opposition to the Nazis, is equally misleading.

For Heinrich Wohlgemuth in, Das Wesen des Politischen £2

der heutigen deutschen neoromantischen Staatslehre: Ein

370

methodenkritischer Beitrag gd seiner Begriffsbildung
(Erlangen, 1932), compares Schmitt with Spengler and
contends that Schmitt is a proponent of an irrational
Lebensphilosophie. Wohlgemuth's book does contain a use—
ful bibliography of all Schmitt's publications before 1932.

Peter Paul Pattloch in, Recht als Einheit von Ordnung und

 

Ortung: Ein Beitrag zum Rechtsbegriff £2 Carl Schmitts

 

Nomos der Erde (Aschaffenburg, 1961), continues this tra-

 

 

dition by relating Schmitt's legal concepts to the

thoughts of Nietzsche.

The most recent books on the subject are: Helmut

und aktuelle Bedeutung mit einer Abhandlung ueber: Die

 

 

Fruehschriften Carl Schmitts (Berlin, 1972), and Lutz—

 

(Munich, 1972). The sections on Hobbes in Rumpf's work are
weak, though he presents many thought provoking insights
into Schmitt's ideas. Bentin merely reflects the standard
anti-Schmitt bias without contributing anything new to our
knowledge; his chapters on Popitz do provide some new

information and are worth serious attention.

Heinrich Muth, "Carl Schmitt in der deutschen
Innenpolitik des Sommers 1932," Historische Zeitschrift,
Beiheft 1, Beitraege zur Geschichte der Weimarer Republik
(1971), pp. 75-147, is well researched and well written.

But his entire argument is faulty because he mistakenly

371

assumes that Schmitt was a part of the Papen-Gayl-DNVP
clique rather than an associate of Schleicher. An interest-
ing article on Schmitt's outlook on the total state in the
Third Reich is Martin Jaenicke, "Die 'Abgruendige Wissen—
schaft' vom Leviathan zur Hobbes-Deutung Carl Schmitts im

Dritten Reich," Zeitschrift fuer Politik, Jhg. 16, Heft 3

 

(September, 1969), pp. 401-415. George Schwab addresses
the charge of Schmitt's opportunism in, "Carl Schmitt:
Political Opportunist?" paper presented to the European
Seminar of the Graduate Center of the City University of
New York (March 7, 1973).

Two critical analyses of the friend-enemy concept
are: Mathias Schmitz, Qge Freund-Feggd Theorie gegl
Schmitts: Entwurf dgd Entfaltung (Cologne, 1965), and

Hasso Hofmann, "Feindschaft-—Grundbegriff des Politischen?"

Zeitschrift fuer Politik, Jhg. 12, Heft 1 (February, 1965),

 

pp. 17-39. Noteworthy also is the balanced and highly
instructive article by Leo Strauss, "Anmerkungen zu Carl
Schmitts Begriff deg Politischen," Archiv gdeg Sozial—
wissenschaft Edd Sozialpolitik, Band 67 (August-September,

1932), pp. 732—749.

Journals and Newspapers
The works of Carl Schmitt have been published,

reviewed, and commented upon in over one-hundred-fifty
different journals, newspapers, and reference books.

Among the leading legal journals are: Archiv des

‘r*.——"‘:..f:‘ x/z—‘r'g’r‘l—rfiérrfi = 7»: “edit; .._.. m: ”.7 _7 ._ _- l l,

372

oeffentlichen Rechts, Archiv des Voelkerrechts, Archiv

fuer Rechts- und Sozialphilosophie, Archiv fuer Rechts-

 

 

und Wirtschaftphilosophie, Deutsche Juristen—Zeitung,

Deutsche Richterzeitung, Juristische Wochenschrift,

Zeitschrift fuer die gesamte Staatswissenschaft, Zeit—

 

 

schrift fuer die gesamte Strafrechtswissenschaft,

 

Zeitschrift fuer oeffentliches Recht, Zeitschrift fuer
Voelkerrecht. For the literary, political and historical
viewpoints of German intellectuals one should survey

articles in such publications as Hochland, Kantstudien,

Archiv fuer Sozialwissenschaft und Sozialpolitik,

 

Zeitschrift fuer politik, and Historische Zeitschrift.

 

Relevant newspapers are: Berliner Tageblatt, Deutsche
Allgemeine Zeitung, Frankfurter Zeitung, Germania,
Koelnische Volkszeitung. During the fifties Christ und

Welt carried numerous articles by and about Schmitt.

 

The major journals of the conservative revolu-
tionary movement are: Deutsches Volkstum, peg Kunstwart,
peg Rgdg, Ede Egg, and Taegliche Rundschau.

From the Nazi period there are: Deutsche Kolonial—
zeitung, Deutsche Verwaltung (an organ of the Fachgruppe
des Bundes National—Sozialistischer Deutscher Juristen),

_—.—_~___——___.~—_——_—___—__—_—_

Deutsches Recht (the first Nazi legal journal), Monat—

 

shefte fuer Auswaertige Politik, Raumforschung und

 

Raumordnung, Das Reich, Reich—Volksordnung-Lebensraum,

 

 

373

Voelkischer Beobachter, Volk und Reich, Westdeutscher

 

Beobachter, and the Zeitschrift fuer auslandisches

 

oeffentliche Recht und Voelkerrecht. The Nazi Akademie

 

fuer Deutsches Recht published three major journals:

 

 

Deutsche Rechtswissenschaft, Jahrbuch der Akademie fuer

Deutsches Recht, and Zeitschrift der Akademie fuer

 

 

Deutsches Recht. See also: Deutscher Juristentag

 

Juristen), and Mitteilungen des National—Sozialistischen

Rechtswahrerbundes. For the period 1933-1936, the
sections of the Deutsche Juristen—Zeitung entitled "Aus
der Deutscher Rechtsfront," "Personalien," and "Vermisch-
tes," are most enlightening. They often provide infor-
mation on the activities of Schmitt and on the general
trends in the legal profession during these years. For
similar information and for the emigre attitude towards
Schmitt see: Deutsche Briefe: Egg Blegg_deg Katholischen

Emigration, I, 1934-1935, II, 1936—1938, ed. Heinz

Huerten (Mainz, 1969).

Memoirs and Related Works

A basic source on the end of Weimar is Franz von
Papen, Memoirs, trans., Brian Connell (London, 1952),
though the reader must keep in mind Papen's desire to
vindicate himself. Heinrich Bruening, Memoiren, lglg"

1934 (Stuttgart, 1970), is more reliable, but still

 

requires careful evaluation. On the inner-workings of

 

374

the presidential system see Hermann Puender, Politik gg
deg Reichskanzlei: Aufzeichnungen egg deg Jahren lggg—gggg,
ed., Thilo Vogelsang (Stuttgart, 1961). For the perspec-
tive of a Social Democrat one should consult Carl Severing,

Mein Lebensweg (Cologne, 1950). Ernst Niekisch, Gewagtes

 

Leben: Begegnungen und Begebnisse (Cologne, 1958), con—

 

tains the recollections of a former conservative revolu-
tionary. A more moderate View is that of J. V. Bredt,
the head of the Wirtschaftspartei and Minister of Justice

in 1930. See: Erinnerungen und Dokumente von Joh. Viktor

Bredt, 1914—1933, ed., Martin Schumacher (Duesseldorf,

 

1970).
There are numerous works by representatives of the

academic and legal professions. See: Willibalt Apelt,

(Tuebingen, 1965), Moritz Julius Bonn, g9 Macht Man

 

Geschichte: Bilanz eines Lebens (Munich, 1953), Arnold

 

Zweite Haelfte, 1927—1967 (Stuttgart, 1967), Friedrich

 

Glum, Zwischen Wissenschaft, Wirtschaft und Politik:

Erlebtes und Erdachtes in Vier Reichen (Bonn, 1964),

Adolf Grabowsky, Demokratie und Diktatur, Grundfragen
politischer Erziehung (Zurich, 1949), Fritz Hartung,

Jurist unter vier Reichen (Cologne, 1971), Ferdinand

 

 

Hermens, Zwischen Politik und Vernunft: Gesammelte

Aufsaetze aus drei Welten (Berlin, 1969), Theodor Heuss,

 

 

375

Erinnerungen, 1905—1933 (Tuebingen, 1963), Ernst Jaeckh

 

 

Weltstaat: Erlebtes ggd Erstrebtes (Stuttgart, 1960),

Gustav Radbruch, peg innere Weg (Stuttgart, 1951).
The political and intellectual atmosphere of

Berlin appears to come alive in Harry Graf Kessler,

Tagebuecher, 1918—1937 (Frankfurt, 1961), and Katherina

 

von Kardorff—Ohemib, Politik ggd Lebensbeichte, ed.,
Else Reicke (Tuebingen, 1966).

Robert M. W. Kempner has published excerpts from
his interrogations of various personalities associated

with the Third Reich in, Das Dritte Reich im Kreuzverhoer:

egg deg unveroeffentlichten Vernehmungsprotokollen deg
Anklagers (Munich, 1969).
Published Documentation and
General Reference

A most valuable reference on the political affairs
of the Weimar Republic is, Das Deutsche Reich vom 1918

bis Heute, 1933, ed., Cuno Horkenbach (Berlin, 1935).

 

 

Aside from a reliable chronology of the daily political
events of this time, Horkenbach provides information and
statistics on the major political parties, elections,
various governmental departments, and pressing issues, as
well as biographical information on the major politicians
and ministers. A published account of the famous trial of

1932 in which Schmitt took part is, Preussen contra Reich

 

vor den Staatsgerichtshof: Stenogrammbericht der

 

376

Verhandlungen vor dem Staatsgerichtshof dg Leipzig vom

10. bis dd. und vom 17. Oktober 1932 (Berlin, 1933). On

 

Nazi legislation see, Die Gesetzgebung des Kabinetts

Hitler, ed., Werner Hoche (Berlin, 1933—1939).

Selective Secondary Works

Excellent bibliographies of the major works on
Weimar and Nazi Germany are available in Karl Dietrich
Bracher, Ede Aufloesung deg Weimarer Republik: gdge
Studie egg Problem deg Machtverfalls dg deg Demokratie
(5th ed.; Villingen, 1971), and dge German Dictatorship:
Egg Origins, Structure, ggd Effects ed National Socialism
(5th ed.; New York, 1974). gde Aufloesung, presents one
of the most convincing analyses of the factors involved
in the disintegration of the Weimar Republic. gge German
Dictatorship is equally authoritative but not as analy—
tical.

Useful for understanding the background to the
intellectual climate of twentieth~century Germany are:

Georg Iggers, The German Conception ed History: The

National Tradition of Historical Thought from Herder to

 

Mosse, The Crisis ed German Ideology: Intellectual Origins

ed the Third Reich (New York, 1964), Fritz Ringer, The

 

 

 

377

Decline of the German Mandarins: The German Academic

Community, 1890-1933 (Cambridge, Mass., 1969), Fritz

 

Stern, The Politics ed Cultural Despair: g Study dg the

Rise ed the Germanic Ideology (Berkeley, 1961), Peter

 

 

York, 1961). Highly informative are the relevant chapters

of The Third Reich, ed., Maurice Baumont (New York, 1955).

 

 

Peter Gay provides a good introduction to the
problem of Weimar intellectuals in, Weimar Culture: gge
Outsider gg Insider (New York, 1968), but his thesis is
highly debatable. More specialized, though more reliable,

is Istvan Deak, Weimar Germany's Left-Wing Intellectuals:

 

 

(Berkeley, 1968). Kurt Sontheimer, Antidemokratischen

 

(Munich, 1964), is a standard account of the intellectual

forces antagonistic to the Republic. The two major works

on the right-wing intellectuals of the conservative revolu—
tion are written by historians who reflect a personal

understanding of the conservative cause. See: Klemens von

Dilemma in the Twentieth Century (Princeton, 1957), and

*_—_—_—_—_______

Armin Mohler, Die Konservative Revolution in Deutschland,

______._____—___—_______

1918—1932: Grundriss ihrer Weltanschauung (Stuttgart,

 

 

1950). The most recent works on figures associated with

 

378

the conservative revolutionary phenomenon are Heinz

Huerten, Waldemar Gurian: Ein Zeuge der Krise unserer

 

Welt in der ersten Haelfte des 20. Jahrhunderts (Mainz,

 

1972), and Heinrich Kessler, Wilhelm Stapel als Politischer
Publizist: Ein Beitrag zur Geschichte des konservativen

Nationalismus zwischen den beiden Weltkriegen (Nuremberg,
1967). Despite its ideological orientation, a solid con—
tribution to our knowledge of German intellectuals in the

twentieth century is Walter Struve, Elites against

For the background to legal thought and the Weimar
constitution see: Willibalt Apelt, Geschichte der Weimarer

Verfassung (Munich, 1964), Rupert Emerson, State and

 

Sovereignty dg Modern Germany (New Haven, Conn., 1928),
and Ulrich Scheuner, "Die Vereinigung der Deutschen
Staatsrechtslehrer in der Zeit der Weimarer Republik,"

Archiv des oeffentlichen Recht, Band 97, Heft 3 (September,

 

1972), pp. 349-374.

One of the best studies of the Hindenburg govern—
ment is Andreas Dorpalen, Hindenburg ggd gge_Weimar
Republic (Princeton, 1964). An insider‘s viewpoint on
this regime is provided in Hermann Puender, peg Reichs—
praesident dg deg Weimarer Republik (Bonn, 1961). Still

useful for understanding the emergency powers of the

president under Article 48 are Clinton Rossiter,

379

Modern Democracies (Princeton, 1948), and Frederick
Watkins, The Failure ed Constitutional Emergency Powers

under the German Republic (Cambridge, Mass., 1939). On

 

the related issue of the Prussia—Reich controversy the

best works are: Juergen Bay, Der Preussenkonflikt 1932/33:

 

1932—1934 (Tallahassee, 1959), and Thomas TrumPP, Franz

NSDAP dg Preussen: Ein Beitrag zur Vorgeschichte des

 

g9. Juli 1932 (Marburg, 1965).

 

 

Comparable to Bracher's authoritative work on the
disintegration of the Weimar Republic is Erich Matthias
and Rudolf Morsey, ed., Egg ggde deg Parteien dgdd
(Duesseldorf, 1960). Concerning the personalities and
problems involved in the final Weimar crisis see: Werner
Conze, "Die Krise des Parteienstaates in Deutschland
1929/30," Historische Zeitschrift, Band 178, Heft 1
(1954), pp. 47—83, Josef Becker, "Bruening, Praelat Kaas
und das Problem einer Regierungsbeteilung der NSDAP, 1930-
1932," Historische Zeitschrift, Band 196, (1963), PP. 74—
111, Theodor Eschenburg, "Die Rolle Persoenlichkeit in

der Krise der Weimarer Republik: Hindenburg, Bruening,

Groener, Schleicher," Vierteljahreshefte fuer

 

 

 

380

Zeitgeschichte, Jhg. 9, Heft 1 (January, 1961), pp. 1—29,

Detlef Junker, Die Deutsche Zentrumspartei und Hitler

Katholizismus dg Deutschland (Stuttgart, 1969), Thilo
Vogelsang, "Zur Politik Schleichers gegenueber der NSDAP

1932," Vierteljahreshefte fuer Zeitgeschichte, Jhg. 6,

 

Heft 1 (January, 1958), PP. 86-118.

A comprehensive analysis of the Nazi seizure and
consolidation of power is presented in K. D. Bracher, W.
Sauer, and G. Schulz, Ede Nationalsozialistische
Herrschaftssystems dg Deutschland 1933/34 (Cologne, 1960).
See also Hans Schneider, "Das Ermaechtigungsgesetz vom

24. Maerz 1933," Vierteljahreshefte fuer Zeitgeschichte,

 

Jhg. 1 (1953), pp. 197-221. The legal aspects of the Nazi

state are surveyed in Martin Broszat, Der Staat Hitlers:

 

 

sozialismus: Ein Ueberblick (Stuttgart, 1968).

 

 

 
   

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