5.4 IMPLICATIONS FOR DOMESTIC PUBLIC LAW AND INTERNATIONAL LAW

Conceiving the polity through the international, and perceiving the state through war, is highly consequential for understanding domestic public law as well as international law.

With respect to domestic public law, The Concept of the Political targeted the understanding, interpretation, and implementation of Weimar constitutional law, in order to pave the way for a more authoritarian form of government. If the state's ability to wage war is critical for its survival, one needs a strong state, which in Schmitt's view necessitates effective leadership over a homogeneous people. Advocating such a form of political unity seems to be Schmitt's most important motive.^{^[334]} Domestic political conflict is only acceptable as long as it does not weaken the state's ability to mobilise for war. Thus, the conservative argument for the primacy of foreign policy is further radicalised. Apparently, Schmitt's ideal is a political unity whose domestic politics consists in merely administering things and persons.^{^[335]}

This primacy of the international is also highly consequential for a state's internal organisation and liberal parliamentary democracy.^{^[336]} Mutilating parliamentarism by clipping its discursive elements is one of the key suggestions of The Concept of the Political. The book also advocates a strictly anti- individualistic interpretation of the law. According to Schmitt, fundamental or human rights should not stand at the core of public law, given that one essential point of political community and public law is the very power to order an individual into a fight for life and death, to demand the readiness to kill and die.^{^[337]} According to The Concept of the Political, true statehood requires a strong executive with potentially dictatorial powers and the ability to impose emergency rule, including the ability to abrogate the entire legal order:

The endeavor of a normal state consists above all in assuring total peace within the state and its territory.

To create tranquillity, security, and order and thereby establish the normal situation is the prerequisite for legal norms to be valid. Every norm presupposes a normal situation, and no norm can be valid in an entirely abnormal situation.^{^[338]}

This implies the power to declare someone an ‘internal enemy', a person no longer protected by the law. The possibility of defining its enemies is constitutive of the concept of the people, it is the ‘essence of its political existence'.^{^[339]}

In this view, pluralism belongs to the international sphere, not to domestic politics. Within a state, pluralism, be it political or social in nature, threatens the state's very existence.^{^[340]} Even though The Concept of the Political remains vague on what kind of homogeneity is required and how to deal with people that do not fit in, it seems clear that Schmitt's theory not only allows, but encourages state policy against troublemakers and potential non-troublemakers.

The Concept of the Political is just as consequential for international law as it is for domestic public law. It presents almost all elements of today's conventional understanding as deficient or even misleading. In the light of Schmitt's text, the idea of an international public law with international institutions which, endowed with their own instruments of power, inclusively advance a common transnational good seems virtually fanciful. The very concept of international law is questioned, and thus the discipline's identity as it prevails today. Schmitt considers the term international law misleading as it suggests a certain independence from states. Since such independence is impossible in Schmitt's view, organisations such as the League of Nations appear as foreign policy instruments of powerful states, not as truly international, that is, independent, organisations.^{^[341]} What the conventional understanding depicts as international law appears rather as external relations law when seen through Schmitt's eyes.

Schmitt holds the conventional focus of international law to be too narrow for understanding the order between states, disputing Heinrich Triepel's key contribution.

Triepel, perhaps the most important of Weimar's conservative public law scholars,^{^[342]} had introduced a seminal as well as categorical distinction between Landesrecht (domestic law) and Volkerrecht (international law).^{^[343]} To Schmitt, this is a mere facade. He advocates a broader field, which he first terms jus gentium and later jus publicum Europaeum. This field embraces not only public international law in its conventional understanding, but also common constitutional standards and a common regime of property protection, roughly something like a transnational economic law. Schmitt's later book on the jus publicum Europaeum devotes much attention to such common European constitutional standards as well as to a common economic constitution before the First World War. Accordingly, to Schmitt, the narrow field of international law simply misses the core point of what is necessary to fully appreciate the order between states. Similar to Schmitt's other key statements, there is a certain plausibility to this assertion, as is shown by current attempts to take a broader view on the history of international law^{^[344]} or on the concept of European law.^{^[345]}

Schmitt also challenges the conventional understanding of progress in international law, in particular with respect to the innovations introduced after the Second World War. Schmitt presents the 1914 jus gentium as a peak of civilisation, claiming that it had civilised war. The Concept of the Political mocks what contemporary international law hails as epochal progress. For Schmitt, the jus ad bellum stands at the core of international law.^{^[346]} Along these lines, accepting the authority of an institution such as the UN Security Council threatens statehood, the prohibition of the use of force expressed in article 2(4) of the UN Charter appears fanciful to true states, and weak states have no right to exist.^{^[347]} ‘[U]nder specific circumstances', international institutions may offer ‘a very useful meeting place', but nothing more than that.^{^[348]}

Were one to accept Schmitt's reading, this would have important implications for how to understand public international law today.

Following Schmitt, much of the field's core terminology then would appear confusing, misleading, or as ideological ‘baggage'. This is not limited to the concept of the international, but also applies to many other core concepts such as humanity, universalism, and the idea of progress. Schmitt considers much of this terminology as a smokescreen for US hegemony, and posits ‘demasking' it as a central task of legal thought. To borrow one of Schmitt's famous assertions: ‘Whoever invokes humanity wants to cheat'.^{^[349]}

Yet, to be sure, Schmitt does not provide an answer to the question of how to establish social order under these premises. At least since the Second World War, Schmitt considered the ‘Westphalian' state-centred order obsolete, particularly because, given the prerequisite of being able to wage war independently, only few polities still formed true states. This is how to understand Schmitt's dark assertions in the book's 1963 edition that ‘the era of statehood' has ended; it does not mean that all states have ceased to exist, or that using the term state has become pointless. One should only remember that some of Schmitt's master students founded the journal Der Staat in 1962, a project Schmitt remained close to throughout the 1960s. However, for Schmitt, the interstate order based on states' military autonomy had come to an end. At the time of the Cold War, with two blocs antagonistically facing each other, each led by a superpower, this hypothesis seemed anything but fanciful, though it problematically reduced matters even then.

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Source: Brett Annabel, Donaldson Megan. History, Politics, Law: Thinking through the International Cambridge University Press,2021. — 450 p.. 2021

5.4 IMPLICATIONS FOR DOMESTIC PUBLIC LAW AND INTERNATIONAL LAW

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