INTRODUCTION

On 21 April 1947, in a Nuremberg interrogation cell, two seasoned German lawyers assessed the merits of political thought for international law. At stake was a death sentence. On one side was Robert Kempner, a former chief legal adviser to the Prussian police, whose botched attempt to outlaw the Nazi party had brought him minor prominence in the early 1930s.¹ After losing his position and citizenship to Nazi racial laws, Kempner, like many Jewish civil servants, had fled Germany's increasingly hostile conditions.

After four years in Italy, Kempner reached the United States in 1939, and there found employment at the Justice Department, before being dispatched back to Germany in the aftermath of the Second World War. Sitting opposite Kempner was Carl Schmitt, a public law professor^{^[232]} who had once been lampooned as the ‘notorious weather vane on the roof of the Third Reich'.^{^[233]} Others saw in Schmitt ‘Hitler's key man', the ‘leading international lawyer in Germany', ‘the Nazi expert on constitutional law',^{^[234]} and, in a characterisation betraying at least some convulsion of phobic attachment, ‘perhaps the greatest authority on the Nazi theory of the state'.^{^[235]} Still others, like the Schutzstaffel's weekly magazine Das Schwarze Korps, wrathfully condemned Schmitt for ‘falsifying history' and cheering for a slinking Catholicism that threatened to corrode the foundations of the Third Reich.^{^[236]} The US Chief Counsel for War Crimes had tasked Kempner with evaluating whether Schmitt's academic texts, particularly his theorisation of space and his combative understanding of politics, warranted a full-blown charge before the Nuremberg Military Tribunal - a special court set up for German war criminals, who, while part of the wider National Socialist project, missed the cut to be brought before the International Military Tribunal's great chamber.^{^[237]}

In the course of these interrogations, Schmitt claimed that his influence on Nazi Germany's political leadership had been limited.

His Großraum theory and concept of the political, on which much of Kempner's case rested, were mere scholarly ‘adventures' poking into the prevalent political landscape, hardly prescriptive roadmaps for political leaders to implement. ‘According to my intentions, the method used, and the form', Schmitt insisted, the scholarly work was ‘just a pure diagnosis... which I am still inclined to defend in front of any academic faculty in the world'.^{^[238]}

In his written statements to Kempner, Schmitt lamented that academic inquiries into constitutional law, international law and political theory were always at risk of being manhandled ‘without much thought and context' to advance crude Machiavellian ‘interests and other instrumental causes'.^{^[239]} While during periods of relative political calm such scholarly gestures enjoyed ‘generous freedom of thought', in times of war, the same concepts could swiftly be hijacked and ‘propagandistically employed' as nihilism-inducing bombs.^{^[240]} A scholar was powerless to prevent his popular reception being besmirched by party-political taint. In Schmitt's reading, any wise man's attempt to ideologically nurture the leader of a totalitarian state was in any case ludicrous, or, as Alexandre Kojeve held in a debate with Leo Strauss, ‘wholly ineffectual'.^{^[241]}

Schmitt also had a deeper conceptual issue with the Nuremberg trials. Throughout his academic career, Schmitt combated liberalism, with its univer- salist aspirations and cosmopolitan pretensions.^{^[242]} In Schmitt's telling, liberalism was romanticism's deformed offspring, a political theology^{^[243]} which, intoxicated through modern shamanic practices like rationality, technological development and secularism, had deluded itself into the belief that it was progressing towards global peace.^{^[244]} Reality looked much bleaker. Schmitt even placed a sharp conceptual wedge between democracy and liberalism.

In the former, Schmitt proclaimed, a homogeneous group of people legitimised a muscular decider; whereas the latter unsatisfactorily answered the critical questions of legitimacy by recourse to fickle parliamentary representation.^{^[245]}

With this criticism in tow, Schmitt can be read as the repressed subconscious to dreamy Weimar as well as to the new liberal world order, that, to him, could not live up to the fading European international order, the jus publicum Europaeum. This European public law, as Schmitt persuasively demonstrated in his major post-war work The Nomos of the Earth, derived its normative muscle from a mildly secularised form of Christianity. For Schmitt, the jus publicum Europaeum had successfully stabilised relationships between European states for roughly two hundred years, until, in 1939, it was crushed by the might of an Anglo-American commercial and maritime empire.^{^[246]} Schmitt framed this transition in his 1942 book Land and Sea: A World-Historical Meditation as the victory of sea powers over land powers.^{^[247]} But while these novel Anglo-American hegemonic forces had successfully supplanted the old concrete order of European monarchies, states and nations, as Schmitt grieved, they had failed to substitute for it a similarly effective international order, stuffing international law with a quixotic mix of conflicting norms instead.^{^[248]}

Who had the authority to bring him in front of a war tribunal to begin with, asked Schmitt, if there was no meaningful international order in sight? And in the absence of any immediately binding international norms, Schmitt raged, what else was this judicial spectacle in Nuremberg but a bunch of victors and Jewish expatriates affirming their power in taking brutal revenge?^{^[249]} While Schmitt was soon released from detention, and retired to his childhood home in Plettenberg, where he would spend the rest of his life in relative quiet, the interrogation process highlighted international law's anxieties when confronted with conflicting imagined political futures, weaknesses that still plague it today.

The chapter looks at Schmitt's international thought and in particular combs through his works on international law and the state. It suggests that Schmitt's political ideas are better understood within his legal thought. By way of examining Schmitt's The Concept of the Political, this chapter further elucidates the ways in which early-twentieth-century critics of liberalism wrestled with, and sought to counteract, liberalism's alleged alienating potential; its expansionist economics; its sacred individualism; its universalist inclinations, and the spatial ordering in international law it fuelled. In so doing, this chapter speaks directly to the relevance of political thought for international law. It also engages with contemporary debates on sovereignty and the legitimate use of violence in international conflicts. Schmitt's thinking about the international, with his flagging of abstract political ideas, offers a ground on which to read the history of international law in conjunction with the history of political thought, and to think the state through the international.

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

INTRODUCTION

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