The Rise and Fall of the Concept of the State
Between 1938 and 1941, Carl Schmitt cannot be straightforwardly labelled a ?statist’.[1447] Instead, he openly waged an intellectual assault on the concept of the state and predicted its imminent demise.
While Schmitt recognised that the state had performed an important function in ending ?confessional civil war’ [konfessioneller Burgerkrieg] in Europe,[1448] [1449] he nevertheless began to see the state as nothing more than a ?concrete concept, bound to a historical epoch’.11 By turning to the historical origins of the state and historicising the concept, Schmitt constructed the foundations of his polemical critique: from the moment of its formulation through to his own time, the very concept of the state was intellectually foreign and therefore subversive to German political interests.Schmitt's discussion of the precise origins of the concept of the state within the history of legal and political thought plays a pivotal role in his broader argument: to understand the fall of the state, it is necessary first to understand its genesis. For Schmitt, the ?age of statehood' ran from approximately the second half of the sixteenth century to the moment of his writing. This age began concurrently with the discovery of the New World and ?the formation of the great fronts of world-Catholicism and world-Protestantism' - the concept of the state was itself a product of these ?confessional civil wars'.[1450] [1451] [1452] [1453] [1454] [1455] The justification of the state arose from its factual ability to suspend religious conflicts and demand unconditional obedience from its subjects. However, its precise origins, to follow Schmitt's conceptual history, were to be found in French political thought of the sixteenth century: ?Out of the confessional civil wars arose in France the idea of the sovereign political decision that neutralises all theological-ecclesiastical oppositions and secularises life'?3 Indeed, Schmitt traces the intellectual origins of the concept of the state in the writings of Jean Bodin - the French legist whom Schmitt would later describe as his ?brother'14 - as the definitive ?product of this period of transition'?5 It is to Bodin's credit that he formulated in his Les six livres de la republique (1576) the concept of the absolutist state and the sovereign political decision as a mechanism for overcoming confessional civil war?6 Indeed, for Schmitt, ?only since this work can one speak of a proper ?state' law ['Staats,-Recht] at all?7 Schmitt's argument on the intellectual origins of the state establishes a paternity dispute between Bodin and his Florentine precursor, Niccolo Machiavelli. After Schmitt declares Bodin to be the founder of the concept of the state, he then argues that the French weaponised the concept to establish and reinforce political and legal hierarchies at the international level. Over the next hundred years, France was in the position to define the content of the very concept that structured European relations. As he put it, ?as the European power, France determined the inner shape and the dimensions of the new ordering concept'.21 Indeed, Schmitt would go so far as to claim that the ?classic political achievement of the French spirit' emerged in the seventeenth century as ?the internally and externally sovereign state'.22 For Schmitt, precisely because the concept of the state was defined by the French, it could be mobilised as a form of intellectual warfare against the consolidation of German power in Europe.[1461] [1462] [1463] For Schmitt, once the state had become the fundamental ordering principle in international politics, its historical origins and polemical function became shrouded in its supposed (potential) universality. A thoroughly temporally-bound, historically conditioned, concrete, and specific form of organisation of political unity loses in this way its historical position and its typical content; it is transferred in misleading abstractness to completely different periods and peoples and projected onto entirely different entities and organizations?4 This abstraction meant both the projection of the state back in time to the Greeks, the Romans, and the Aztecs, in addition to figurative projections such as the ?bee or ant state'?5 The dominance of the concept of the state thus rendered alternative forms of political organisation unthinkable, as the state came to appear as a universal and therefore inescapable concept. To follow Schmitt's argument, a historically contingent invention of the French to solve the problem of confessional civil war in Europe during the sixteenth century instead became the sole concept for structuring political life, and in the process, allowed the French to forge the rules and principles of the state based international order to their advantage. Returning to Bodin, Schmitt argues that it was this hegemonic French concept of the state that brought about the implosion of the first German Reich, the Holy Roman Empire. Here, he draws on Bodin's chapter titled Du Prince tributaire oufeudataire, et sil est Souverain, in which Bodin considers a list of European states that would qualify as sovereign: France, England, Scotland, Denmark, and Spain.[1464] [1465] [1466] [1467] In the Holy Roman Empire, however, ?neither the Kaiser nor the princes nor the imperial cities [Reichsstadte]' were, following Schmitt's reconstruction of Bodin, considered to be sovereign?7 Indeed, in Bodin's reading, there was no sovereign within the Holy Roman Empire. As a result, it was only a matter of time until ?the medieval German Reich had to fall victim to the explosive force of the new ordering concept of the “sovereign state”'?8 Thus, while Bodin was the originator of the concept of the state, he was therefore also the executioner of the concept of the Reich. Schmitt's work between 1938 and 1941 constructs the mirror image to Bodin, with Schmitt declaring the dawn of the Reich while predicting the demise of the state. For Schmitt, the geopolitics of Europe confirmed this comparison: Germany's position in Europe after 1938 was analogous to France's position in the sixteenth century. Thus, just as France bestowed upon the concept of the state its decisive meaning by virtue of its political unification in the sixteenth century, so too could Germany establish and determine a new concept of the Reich for the twentieth century. At the same time, however, the French legist functioned as a personal identification figure in Schmitt's analysis: just as Schmitt celebrates Bodin as the ?essential product' of the age of statehood, so too does Schmitt construct himself as the essential product of the age of the German Reich?9 Thus, it was not the emerging world war that threatened the demise of the concept of the state, nor would it be accurate to say that Schmitt saw the downfall of the state as introducing a period of National Socialist ?revolutionary anarchy' equivalent to the Hobbesian Behemoth.[1468] Instead, Schmitt celebrated the overcoming of the concept of the state precisely because he thought it would soon be replaced by the properly German concept of the Reich: ?this elevation of the concept of a state to a general normal concept of the political form of organisation of all times and peoples will likely Itselfsoon come to an end with the era of Statehood?[1469] Schmitt's periodisation of the coming age of the German Reich represents a significant revision to his initial series of publications after the rise of National Socialism from 1933 to 1934. Looking back at Schmitt's texts immediately following Hitler's Machtergreifung - Staat, Bewegung, Volk [State, Movement, People] (1933), ?Reich - Staat - Bund' (1933), and StaatsgeJuge undZusammen- bruch des zweiten Reiches [State Structure and Collapse of the Second Reich] (1934) - one might expect Schmitt's dating to coincide with Hitler's rise to power and National Socialist ideologue Alfred Rosenberg's proclamation of a Third Reich.3[1470] [1471] However, these earlier texts diverge from his later work in three crucial ways. First, while the significance of the state had been lowered from ?the political unity of a people'33 to one of three constitutive elements led by the National Socialist movement, Schmitt had still referred to the German political unit as a state[1472] Indeed, Schmitt had even declared that Hitler's seizure of power meant the creation of ?the new state of the national revolution, arising under the political leadership of Adolf Hitler'[1473] Thus, although he had recognised a caesura with the state of the Weimar Republic taking place in 1933, Schmitt still thought ?the state' was an appropriate concept for the political organisation of National Socialist Germany. Second, the term ?state' in Schmitt's writings from this period had not yet acquired the pejorative sense he would later attribute to it between 1938 and 1942. In contrast, Schmitt had even claimed that ?the word “state” excites our feeling of Germanness, ever since the great Prussian King [...] considered, “that a Prince cannot outlive his state”'.[1474] Thus, in this earlier reading, the concept of the state was a product of Prussian culture and decisively not of the French. Lastly, although Schmitt had still been willing to use the term ?Reich' to describe Wilhelmine Germany, and as is apparent from the title of his 1934 text, State Structure and Collapse of the Second Reich, ?Reich' and ?state' were not yet analytically distinct concepts in his analysis. Rather, Schmitt's text was purportedly an analysis of the ?state structure' of the ?Second Reich'. Indeed, identifying Wilhelmine Germany as the ?Second Reich' - instead of the Kaiserreich - played a legitimating function by connecting the Third Reich back to the Kaiserreich and thereby enticing hesitant Prussian conservatives to support National Socialism[1475] It was only much later, when Schmitt returned after 1938 to write a conceptual history of the state, that he either ignored or directly contradicted these earlier arguments by drawing a clear conceptual distinction between the state and the Reich. Moreover, this later iteration of Schmitt's texts identifies a precise date on which Germany became a Reich: February 20, 1938. The transformative moment was none other than Hitler's Reichstag speech declaring a ?German right of protection for German ethnic groups of foreign nationality'[1476] Schmitt praises Hitler's speech for expounding a German ?principle of the law of nations', which ?signifies the rejection of all ideals of assimilation, absorption, and that of the melting pot'. This was intended as a critique of both the United States and England. As Schmitt continues, with a distinctly anti-Semitic remark, ?this is the political idea which has the specific meaning of the here developed Groβraum-principle in the law of nations for the middle and eastern European space, in which many, but - aside from theJews - non-essentially different [nicht artfremd] peoples and ethnic groups live’.[1477] Hitler's speech of February 20, 1938 also announced his plans for incorporating neighbouring territories into a 'Groβdeutsches Reich.’, with the Anschluβ of Austria taking place less than a month later and foreshadowing the subsequent beginnings of the Sudetenland crisis. For Schmitt, this speech was the essential moment which transformed the existing German state into a Reich. The moment came with the assertion that German influence and a right of protection extended wherever there were communities of ethnic Germans in Europe. As Schmitt is quick to point out, the designation of ?Reich’ was used to describe the Germany only after this proclamation, in the text of the Hitler-Stalin pact of September 28, 1939.[1478] It was therefore National Socialism which had finally dissolved the yoke of the concept of the state encumbering Germany: freed from the strict territorial demarcation of states, the German Reich under Hitler’s leadership could pursue an expansionist policy. And Schmitt, more than merely a passive observer, set about writing not only a historical justification of this transition, but also a blueprint for its future organisation. 2