The Reich in the Law of Nations

This chapter has so far attempted to elucidate Schmitt's conception of the Ger­man Reich through negative contrasts. This has involved reconstructing Schmitt's argument for the �overcoming of the concept of the state' both in his polemical genealogy of the concept in European political thought and, as well, in his analysis of international geopolitical and economic shifts.

A precise definition of â€?Reich’ emerges from Schmitt: â€?Reiche in this sense are the leading [fuhrenden] and fundamental powers, whose political idea ra­diates through a particular Groβraum and which fundamentally exclude inter­ventions by foreign powers in this GroEraum'.^{[1503] [1504] Immediately, three aspects are clear from this definition, which (it will be noted) is pluralised to provide the possibility of multiple formations if not at the same moment in history, then at different times throughout history. First, the Reich is not synonymous with Schmitt’s parallel concept of the GroEraum. Given that Schmitt believes the Soviet the United States has formed a Groβraum, but simultaneously denies them the label of â€?Reich’, this analytical distinction is to be expected. Still, how­ever, the two concepts are linked, as â€?every Reich has a Groβraum',66 which subsequently leads to the first characteristic of a Reich. Second, there is a dis­tinction between the Reich as the â€?leading power’ and other states within its sphere of influence.}

From the perspective of international politics, Schmitt is emphatic that the concept of the German Reich is not simply an enlargement of the concept of the state.^[1507] Nor does Schmitt think it possible or desirable in a volkisch sense to transfer the legal qualities of the state directly to a �people’. Indeed, for Schmitt, the presence of a distinct people does not entitle them to create a separate state, forasmuch as �a people incapable of a state in a purely organisa­tional sense cannot become a subject of the law of nations’ (an axiom Schmitt finds applicable to the defeat of Abyssinia in 1936).^[1508] This position entails a denial to vanquished peoples of any protections through the law of nations. The very fact of defeat seems to confirm ex post bellum their lack of statehood for Schmitt.

Furthermore, Schmitt’s concept of Reich undercuts the territorial sover­eignty of individual states. In this respect, Schmitt’s argument turns on ad­vances in modern technology which have rendered the idea of territorial sov­ereignty obsolete: �From a technical point of view, it is peculiar and grotesque, particularly with territorially small states, when one thinks how many �sover­eignties’ a modern airplane should be subjected to when it flies for a few hours over many small states’.

The territorial exclusivity of a state-based order can be juxtaposed with the concept of hegemony, which Schmitt imports from his contemporary and col­league at the Friedrich-Wilhelms-Universitat Berlin, Heinrich Triepel?² In Schmitt’s review of Triepel’s 1938 work, Die Hegemonle. Ein Buch vonJuhrenden Staaten, he criticizes his colleague for developing a theory of hegemony with­out challenging the â€?idea of the state’ as â€?the decisionistic-positivistic concept of the nineteenth century’.^[1509] In short, Triepel did not anticipate the â€?dawn of the concept of the Reich’ as Schmitt himself would come to do. Continuing his castigation, Schmitt chides Triepel for constructing a â€?general concept’ of lead­ership that ignored the concrete development of the concept of â€?Fuhrung’ in Germany since 1933. The central component of National Socialist leadership is, for Schmitt, that there exists a direct and unmediated relationship between the leader and the led, a relationship expressed in the National Socialist jargon of â€?Artgleichheit'. Indeed, as early as 1933, Schmitt had postulated that leader­ship was the central concept of National Socialist jurisprudence?⁴ In contrast, indirect leadership - potestas indirecta - is a falsified or corrupted form of leadership developed and exercised by the English and the League of Nations: Schmitt’s frequent polemical targets as symbolic representatives of parliamen­tarism and â€?universal international law’?⁵ As Schmitt argues, here making di­rect reference to Hitler:

Our Fuhrer restores the true publicness which was destroyed through in­direct methods and means of exercising power [...] The overcoming of anonymity and of techniques of concealment of indirect methods, that was the achievement of a Fuhrer whom the entire German people greet­ed as a liberator from the typically indirect powers of a pluralistic system of compromise?⁶

In the original definition of the Reich given at the start of this section, Schmitt claimed that the Reich would �radiate’ a particular political ideology.

A particularly exculpatory strain of recent Schmitt reception argues that his understanding of the â€?Reich’ was independent from National Socialist ideolo­gy. For example, Gunter Maschke writes that â€?the book "Volkerrechtliche GroEraumordnung". [is] only with ill will readable as a pro-nazi declaration’.^[1510] Such a view, however, ignores Schmitt’s appropriation of not only the National Socialist Reichminister Lammers and State Secretary Stuckart for â€?the intro­duction of our concept of the Reich’,^[1511] but also the texts of Hitler’s speeches as support for his argument. Furthermore, Maschke ignores Schmitt’s argument that it was â€?the victory of the National Socialist movement’ that made an â€?ad­vance towards the overcoming of the concept of the state in the law of na- tions’^[1512] While the final â€?overcoming’ would only take place with Hitler’s decla­ration of February 20, 1938, it is nevertheless significant that Schmitt drew a direct connection between Hitler’s MachtergreiJung and his theory of the Ger­man Reich. Indeed, Maschke’s argument is problematic for attempting to sani­tise Schmitt’s work by removing it from its political and discursive contexts. This is not to say that Schmitt’s theory was met with unanimous approval from National Socialists^^[1513] but rather to see that Schmitt was attempting to justify the formation of a central European Groβdeutsches Reich while simultaneous­ly excluding intervention from the United States. As such, Maschke’s interpre­tation ignores Schmitt’s own injunction to historicize legal and political con­cepts, which Schmitt himself makes explicit in reference to the establishment of the concept of the Reich: â€?The Fuhrer’s deed bestowed upon the thought of our Reich political reality, historical truth, and a great future in the law of nations’^[1514]

Indeed, it is precisely this concept of a racially defined, non-universal Ger­man Reich that Schmitt believed would provide the National Socialist alterna­tive to the concept of the state for the construction of a new system of interna­tional law and international politics.

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