INTELLECTUAL FORMATION: WHAT'S ON THE LAWYER'S MIND

In the 1993 article Carl Schmitt in the Intellectual History of the Federal Republic, published eight years after Schmitt's death, Jürgen Habermas dis­tilled Schmitt's entire intellectual development into a single sentence, which is worth quoting in full:

A critical attitude towards modernity because of an upbringing in a Catholic milieu; a marriage which led to a distancing from the church; a defiant provincialism; a certain uneasiness with all things urban; the generational event of the First World War and the complex of Versailles; additionally an existential pioneering spirit to venture ‘from Goethe to Holderlin'; a turn against humanism more generally; a Latin-Catholic and Greek-Neopagan critique of the enlightenment tradition, channelled through Donoso Cortes or Nietzsche; an intellectual elitist stance snubbing the party state, democ­racy, public sphere (Offentlichkeit), and discussion; deep contempt towards all things egalitarian; and then, of course, the Führer, who ultimately sealed their common fates.^[250]

According to Habermas, all of the above applies to Martin Heidegger's intellectual formation as well; hence the plural.

Carl Schmitt was a German jurist.^[252] For Schmitt this meant nine years of thorough legal training at the universities of Berlin, Munich, and Strasbourg, followed by a lengthy practical stint at the Higher Regional Court in Düsseldorf, a second state examination, a doctorate, and an extensive Habilitation. The skill of sharply demarcating concepts and subsuming empir­ically discernible social facts under them, sometimes denigrated as Begriffsmagie (magic of concepts), are but the most visible cues that link Schmitt's writing back to the legal training and practice he underwent.^[253]

In the early decades of the twentieth century, at the very beginning of his scholarly endeavours, Schmitt groaned at the perfunctory theoretical models German jurists employed to capture the complexities of modern statehood, and at their narrow thinking with respect to the relation between law and politics.

The German liberal legal scholar Gerhard Anschütz, editor of Georg Meyer's standard public law textbook Lehrbuch des Deutschen Staatsrechts, set out to disentangle the constitutional tussle some fifty years later. But after some cursory attempts to shed light on the situation with his legal toolbox, Anschütz settled for a capitulation instead. Cases where parliament wrangled with the king, wrote Anschütz, were moments in which the reach of conven­tional ‘public law had come to an end'.^[256] Constitutional provisions could not help jurists to grasp such intricate institutional matters with their legal methods.

Schmitt was not recommending that jurists should have fought more rounds against politics before throwing in the towel. They should not have stepped into the ring to begin with. The very structure, function, and historical role of legal scholarship, argued Schmitt, prevented it from waltzing as an opposition-science (Oppositionswissenschaft)^[257] Anschütz, for one, had stumbled because his scholarly gaze had remained fixed on squeezing out answers to politically charged questions from positive laws alone, as Schmitt would later critique.^[258] The strait-jacketing of law to correspond squarely to written norms and formal procedure, thundered Schmitt, had been the collective failure of a whole generation of liberal jurists.^[259] Schmitt wanted no membership in their club. Instead, he meticulously tailored legal garb to fit exceptional political conditions: specifically, for extreme cases in which public order had vanished and liberal Allgemeine Staatslehre came to its limits.^[260]

Sharpening a focus on the state of exception, or, to use the rumbling German compound word Ausnahmezustand, in Schmitt's eyes, revealed that while law may well have receded from public life, order in a ‘juristic sense' almost always prevailed. What liberal jurists were quick to label ‘disturbance', ‘collapse', ‘end of law', or altogether ‘anarchy', on closer inspection commonly constituted the very exception which sustained the handy legal rules of their ‘day-to-day' work.^[261] For liberal jurists to refuse serious engagement with the Ausnahmezustand, Schmitt teased, was comparable to a theologian rationally ruling out the occurrence of miracles on which his own faith was based.

‘A philosophy of concrete life', Schmitt argued against Anschütz, ‘cannot withdraw from the exception and from the extreme case; rather, it has to show [the] keenest interest in the exception'.^[263] Schmitt's determination to overcome such embarrassing legal capitulations is already visible in his earliest writings. In the untranslated 1912 book Gesetz und Urteil: Eine Untersuchung zum Problem der Rechtspraxis a young Schmitt sheepishly asks a basic question: ‘When is a judge's decision correct?'^[264] Most jurists would diligently answer, a decision is correct if the law has been interpreted and applied correctly to the individual case. Schmitt rejects this definition. He remonstrates that little is won by relating the juristic validity of a judge's ruling to the written legal code. Irrespective of how sophisticated the hermeneutic approach of hammering meaning out of legal norms is - in German legal scholarship a predictably complex method called Methodenlehre^[265] - at a certain point, one always finds oneself at a hermeneutic loss for meaning.^[266] Legal relationships in modern societies are far too knotty to be folded neatly into positive legal codes, or ‘resolved' wholesomely through Methodenlehre.

A glance at the ways in which judges perform their juridical duties, Schmitt argues, makes it plain that they are not merely reconstructing laws mechanic­ally, like robots.^[267] Through their rulings, judges are instead engaged in the practice of making law. Schmitt reasons that, practically speaking, a judge's train of thought when writing an Urteil is essentially the following: will my ruling withstand appeals in front of another chamber, or will my ruling be overturned? With a wink to the categorical imperative, Schmitt concludes with the following crisp and potent definition: a judge's decision can be validated theoretically if ‘it can be assumed that another judge would have ruled in the same way'.^[268]

In his first extensive academic work, Schmitt dissociated legal decision­making from positive legal norms and formal validity.

5.3