## 1. Biographical Sketch




Carl Schmitt's early career as an academic lawyer falls into the last
years of the Wilhelmine Empire. (See for Schmitt's life and career:
Bendersky 1983; Balakrishnan 2000; Mehring 2009.) But Schmitt wrote
his most influential works, as a young professor of
constitutional law in Bonn and later in Berlin, during the
Weimar-period: *Political Theology*, presenting Schmitt's
theory of sovereignty, appeared in 1922, to be followed in 1923 by The
*Crisis of Parliamentary Democracy*, which attacked the
legitimacy of parliamentary government. In 1927, Schmitt published the
first version of his most famous work, *The Concept of the
Political*, defending the view that all true politics is based on
the distinction between friend and enemy. The culmination of Schmitt's
work in the Weimar period, and arguably his greatest achievement, is
the 1928 *Constitutional Theory*, which systematically applied
Schmitt's political theory to the interpretation of the Weimar
constitution. During the political and constitutional crisis of the
later Weimar Republic Schmitt published *Legality and
Legitimacy*, a clear-sighted analysis of the breakdown of
parliamentary government in Germany, as well as *The Guardian of the
Constitution*, which argued that the president as the head of the
executive, and not a constitutional court, ought to be recognized as
the guardian of the constitution. In these works from the later Weimar
period, Schmitt's declared aim to defend the Weimar constitution is at
times barely distinguishable from a call for constitutional revision
towards a more authoritarian political framework (Dyzenhaus 1997,
70-85; Berthold 1999; Kennedy 2004, 154-78; Breuer 2012).




Though Schmitt had not been a supporter of National Socialism before
Hitler came to power, he sided with the Nazis after 1933. Schmitt
quickly obtained an influential position in the legal profession and
came to be perceived as the 'Crown Jurist' of National
Socialism. (Ruthers 1990; Mehring 2009, 304-436) He
devoted himself, with undue enthusiasm, to such tasks as the defence
of Hitler's extra-judicial killings of political opponents (PB
227-32) and the purging of German jurisprudence of Jewish
influence (Gross 2007; Mehring 2009, 358-80). But Schmitt was
ousted from his position of power within legal academia in 1936, after
infighting with academic competitors who viewed Schmitt as a turncoat
who had converted to Nazism only to advance his career. There is
considerable debate about the causes of Schmitt's willingness to
associate himself with the Nazis. Some authors point to Schmitt's
strong ambition and his opportunistic character but deny ideological
affinity (Bendersky 1983, 195-242; Schwab 1989). But a strong
case has been made that Schmitt's anti-liberal jurisprudence, as well
as his fervent anti-semitism, disposed him to support the Nazi regime
(Dyzenhaus 1997, 85-101; Scheuerman 1999). Throughout the later
Nazi period, Schmitt's work focused on questions of international law.
The immediate motivation for this turn seems to have been the aim to
justify Nazi-expansionism. But Schmitt was interested in the wider
question of the foundations of international law, and he was convinced
that the turn towards liberal cosmopolitanism in 20th century
international law would undermine the conditions of stable and
legitimate international legal order. Schmitt's theoretical work on
the foundations of international law culminated in *The Nomos of
the Earth*, written in the early 1940's, but not published before
1950. Due to his support for and involvement with the Nazi
dictatorship, Schmitt was briefly detained and interrogated at the end
of the war as a potential defendant in the Nuremberg trials (ECS; AN),
the legitimacy of which he impugned in a legal brief prepared for the
defense of the German industrialist Friedrich Flick (IC). The
obstinately unrepentant Schmitt was not allowed to return to an
academic job after 1945 (Mehring 2009, 438-63). But he
nevertheless remained an important figure in West Germany's
conservative intellectual scene to his death in 1985 (van Laak 2002)
and enjoyed a considerable degree of clandestine influence elsewhere
(Scheuerman 1999, 183-251; Muller 2003).


 Unsurprisingly, the significance and value of Schmitt's works is
subject to heated controversy (Caldwell 2005). A group of authors
sympathetic to Schmitt argue that Schmitt's analysis of liberal
constitutionalism during the Weimar period is separable from his
support for National Socialism and that it constitutes an insightful
and important analysis of the political presuppositions of a
well-functioning liberal constitutional system (Bendersky 1983; Schwab
1989; Gottfried 1990; Kennedy 2004; Schupmann 2017). From the left, Schmitt's work is
sometimes taken to illustrate the affinities between a purely economic
liberalism and political authoritarianism (Mauss 1980; Cristi 1998).
The view that the Schmitt of the Weimar period can be read as a
defender of liberal order has been questioned by authors who stress
the continuity between Schmitt's conceptions of law, sovereignty, and
democracy and fascist ideology (Wolin 1992; Dyzenhaus 1997; Scheuerman
1999). However, engagement with Schmitt is nevertheless considered to
be important. It has been argued that Rawlsian political liberalism is
vulnerable to Schmitt's critique of liberalism due to its
unwillingness to base itself explicitly on a liberal conception of the
good (Dyzenhaus 1997, 218-58) or due to its refusal to recognize
the antagonistic nature of politics (Mouffe 1999b). Moreover,
Schmitt's views on sovereignty and emergency powers are often seen as
the intellectual basis of contemporary calls for a strong executive
power unhampered by constraints of legality (Dyzenhaus 2006,
35-54; Scheuerman 2006; Posner and Vermeule 2010,
3-24). Finally, there are an increasing number of authors who
concentrate on particular arguments of Schmitt's that are seen as
worth developing in a systematic context. Two focal points of recent
interest are Schmitt's theory of popular sovereignty (Arato 1995;
Lindahl 2007; Kalyvas 2008, 79-186; Loughlin 2010, 209-37;
Kahn 2011; Colon-Rios 2012, 79-101; Minkkinen 2013; Vinx 2013a)
and his conception of international order (Odysseos and Petito 2007;
Slomp 2009; Legg 2011; Benhabib, 2012; Vinx 2013b; Hathaway and Shapiro 2017, chapter 10).


## 2. Sovereignty and Dictatorship




Modern liberal constitutions do not acknowledge a bearer of sovereign
authority, and modern legal and constitutional theory has often tried
to dispense with the concept. But Schmitt argues, in *Political
Theology*, that such attempts to get rid of sovereignty cannot be
successful. In Schmitt's view, there can be no functioning legal order
without a sovereign authority (PT 5-35; Dyzenhaus 1997,
42-51; McCormick 1997, 121-56; Hofmann 2002, 49-64;
Kennedy 2004, 54-91; Kahn 2011, 31-61; Croce and Salvatore
2013, 13-29; Vinx 2015). According to Schmitt, liberal constitutionalists
typically hold that all legitimate particular acts of state must apply
general legal norms, so that people are subject only to the
determinate and predictable demands of the law, not to the potentially
arbitrary authority of persons (PT 18-26; see also CT
169-96, CPD 33-50). This view overlooks, Schmitt argues,
that general legal norms often fail to provide determinate guidance
without considerable interpretation and interstitial legislation (PT
29-35; GU 21-43). In order for the law to become
effective, there needs to be an authority that decides how to apply
general legal rules to concrete cases and how to deal with problems of
contested interpretation or under-determination. However, the material
content of the law does not itself determine who is to interpret and
to apply it. Hence, a sovereign authority prior to the law is needed
to decide how to apply general legal norms to particular cases (PT
29-35).


 This argument appears to assume that all legal norms are material
norms providing substantive grounds of legal decision. But modern
legal systems typically contain norms of competence in addition to
material norms. Hence, it seems that the view that all legitimate
political authority depends on legal authorization is not as
indefensible as Schmitt suggests (Kaufmann 1988, 337-45). The
law can determine, for any material legal norm, which person or
institution has the competence to interpret and apply it. Subjects of
the law may admittedly have to accept that a final decision might turn
out to be binding even though wrong. And in this limited sense,
Schmitt is right to appeal to Hobbes's dictum that it is authority and
not truth that makes the law. (PT 33-4) But that a legal
system, through its norms of competence, provides for the
authoritative interpretation of its material legal norms hardly
entails that it must contain a sovereign in the traditional
understanding of that term. Schmitt's implicit reply to this objection
claims that the applicability of legal norms presupposes a general
condition of social normality. Legal norms, Schmitt argues, cannot be
applied to a chaos. They require a "homogeneous medium."
(PT 13) No legal norm, in Schmitt's view, can govern an extreme case
of emergency or an absolute state of exception. In a completely
abnormal situation, the continued application of the law through the
normal administrative and judiciary channels is going to lead to
haphazard and unpredictable results, while preventing effective action
to end the emergency (PT 13; GU 44-114; Scheuerman 1996; Hofmann
2002, 17-33). If the applicability of material legal norms
presupposes a condition of normality, Schmitt assumes, a polity must
be entitled to decide whether to suspend the application of its law on
the ground that the situation is abnormal. Hence Schmitt's famous
definition of sovereignty, according to which the sovereign is he who
decides on the state of exception: If there is some person or
institution, in a given polity, capable of bringing about a total
suspension of the law and then to use extra-legal force to normalize
the situation, then that person or institution is the sovereign in
that polity (PT 5). Any legal order, Schmitt bluntly concludes, is
based on a sovereign decision and not on a legal norm (PT 10,
12-3).




One might reply to this line of thought that it is perfectly
possible to establish legal conditions for the declaration of a state
of emergency as well as legal constraints on the permissible means of
dealing with an emergency. Schmitt argues, though, that attempts to
legalize the exceptional situation are doomed to failure. It is
impossible to anticipate the nature of future emergencies and to
determine in advance what means might be necessary to deal with them.
As a result, the positive law can at best determine who is to decide
whether there is an emergency that requires a wholesale suspension of
the law. But the sovereign decision cannot be guided by existing
material law (PT 11-2). In Schmitt's view, it is not even necessary for
the law to determine who can take a decision on the exception. There
can be a sovereign authority, in a jurisprudentially relevant sense,
even where such an authority is not recognized by positive
constitutional law. All that matters is whether there is a person or
institution that possesses the ability, as a matter of fact, to take a
decision on the exception. If a sovereign, so understood, exists, its
authority to suspend the law does not stand in need of positive legal
recognition, since the law's applicability itself depends on a
situation of normality secured by the sovereign (PT 12-3). What about
cases, though, where sovereignty is not just unrecognized in positive
law but where there is no one, as a matter of fact, who could
successfully take a decision to suspend the law altogether? This
condition seems to apply in many contemporary western democracies.
Perhaps such polities are ill-prepared to deal with radical
emergencies. But it would be implausible to conclude that they do not
possess a legal order. Schmitt's full response to this objection will
only become clear from his discussion of 'the political.' The objection
suggests, however, that Schmitt's claims about sovereignty cannot
plausibly be understood as claims about the presuppositions of the mere
factual existence of a legal system. Schmitt must be arguing that
wherever the situation of normality or homogeneity that makes the
results of the application of law determinate and predictable is no
longer guaranteed by a sovereign, the positive legal system, consisting
of material norms and of positive norms of competence, can no longer be
legitimate (Mauss 1980, 81-121; Scheuerman 1999, 15-37; Hofmann
2002).


 If the sovereign's decision on the exception is not subject to any
material legal constraint, the power to decide on the state of
exception is tantamount to the power to decide what should count as a
state of exception (PT 13; Norris 2007). A sovereign's view on this
issue, however, must be responsive to prevailing social attitudes. If
it were not, a sovereign could hardly possess the factual capability
to suspend the law and to act successfully against the perceived
emergency. To do so, his decision will need to be supported by a
sufficiently large and powerful constituency. Nevertheless, the need
for sovereign decision will be greatest in a society torn by serious
ideological or social conflict. And if there is no unanimity among
social groups as to what situation to perceive as normal or
exceptional, the sovereign decision will inevitably have to side with
one group's conception of normality against that of another. The
sovereign creation of a condition of normality, in other words,
constitutes a community's political identity and it is likely to do so
through the forcible suppression of those whose conception of
normality differs from the sovereign's (D 132-47). The question
of the legitimacy of law thus turns on the question of the legitimacy
of an identity-constituting sovereign exercise of foundational
violence.




Schmitt admits that the principle of democracy is the only principle
of legitimacy that is available as an ideological basis for a
contemporary constitution (PT 50-2; CPD 22-32). If
Schmitt's conception of sovereignty is to be defensible, it must
therefore be given a democratic interpretation. But it is difficult to
see how this could be possible. The only candidate for sovereignty in
a democratic polity is the popular sovereign, composed of politically
equal citizens. A popular sovereign, it seems, cannot be a Schmittian
sovereign, as it will only be able to decide under existing
constitutional rules that determine how the people as a collective are
to form a unified will. Schmitt prepared the groundwork for a
solution to this problem in *Dictatorship*, his historical
study of the development of the institution of dictatorship (McCormick
1997, 121-56; Cristi 1998 108-25; Kalyvas 2008,
88-126; Kelly 2016).


 Dictatorial power in its original, Roman form is a formally
delegated and time-limited power to defend an already existing
republican constitution through the use of extra-legal force (D
xlii-xliv, 1-19). A Roman dictator, then, was clearly not a sovereign
in Schmitt's sense of the term. In the course of modern constitutional
history, however, the institution of dictatorship, Schmitt claims,
fused with sovereignty, and this fusion related sovereignty to
democracy. The first step towards this fusion, in Schmitt's account,
was the use of commissarial dictatorship in the early modern
absolutist state. The absolutist sovereign did possess the sovereign
power to decide on the exception, and was thus capable of authorizing
commissars to use dictatorial methods in his name. But the notions of
dictatorship and sovereignty were not yet fused. The commissarial
dictators of the absolutist sovereign were mere agents of the
sovereign and did not themselves possess the power to decide on the
exception. The absolutist sovereign, in turn, though he had the power
to decide on the exception, was not himself a dictator; first of all
since he did not decide under someone else's but by his own authority,
and secondly because he was of course expected to rely on legal
governance as his normal mode of operation (D 20-33). But the
relation between sovereignty and dictatorship changed in the French
revolution. The revolutionary governments relied heavily on
dictatorial action to create a new situation of normality that would
allow a new constitution to come into force. The revolutionary
governments, like the absolutist sovereign, claimed the power to
decide on the exception, but they did not claim to be
sovereign. Rather, they claimed to exercise the authority to decide on
the exception in the name of the French people, even while they were
ruling the French people by the use of dictatorial methods (D
132-47). Sovereignty and dictatorship had become fused in the
novel institution of sovereign dictatorship: A sovereign dictator is a
dictator who does not defend an already existing constitution but
attempts to create a new one and who does so not by his own authority
but in the name of the people (D 112-31).




Sovereign dictatorship, in Schmitt's view, is an eminently
democratic institution. It can exist only where it has become possible
to take a sovereign decision on the exception in the name of the
people. Sovereignty, Schmitt concludes, is not just compatible with
democracy but central to it, as it is exercised whenever and wherever a
democratic constitution is founded (CT 109-10, 265-6; CPD 32). The fact
that a democratic constitution cannot endow a particular person with
permanent sovereign authority does not entail that the possibility of a
genuine sovereign decision on the exception has disappeared. It merely
implies that a decision on the exception in the democratic state must
take the form of an exercise of the people's constituent power.


## 3. *The Concept of the Political* and the Critique of Liberalism




The sovereign dictator has the power, in taking the decision on the
exception, to set aside the positive legal and constitutional order in
its entirety and to create a novel positive legal and constitutional
order, together with a situation of social normality that fits it. It
follows that the sovereign dictator cannot base his claim to be acting
in the name of the people on any kind of formal authorization. If the
old constitution no longer exists and the new one is not yet in force,
there is no formal procedure for generating a public will. And yet, the
sovereign dictator claims to exercise the constituent power of the
people. What is more, the constitutional order he is to create is to be
considered as legitimate since it rests on the people's right to give
itself a constitution (CT 136-9). Schmitt's view assumes that it is
possible to speak of the existence of a people in advance of the
creation of any positive constitutional framework. Schmitt therefore
has to explain what it means for a people to exist prior to any
constitutional framework, and he has to give an account of how the
people's political existence prior to any constitutional framework can
ground a sovereign dictatorship.




Schmitt's *The Concept of the Political* phrases the answer to this
question as an account of the nature of 'the political.'
(Sartori 1989; Gottfried 1990, 57-82; Meier 1998; Hofmann 2002,
94-116; Mehring 2003; Kennedy 2004, 92-118; Slomp 2009, 21-37; Schupmann 2017, 69-105)
Schmitt famously claims that "the specific political distinction
... is that between friend and enemy." (CP 26) The
distinction between friend and enemy, Schmitt elaborates, is
essentially public and not private. Individuals may have personal
enemies, but personal enmity is not a political phenomenon. Politics
involves groups that face off as mutual enemies (CP 28-9). Two
groups will find themselves in a situation of mutual enmity if and
only if there is a possibility of war and mutual killing between
them. The distinction between friend and enemy thus refers to the
"utmost degree of intensity ... of an association or
dissociation." (CP 26, 38) The utmost degree of association is
the willingness to fight and die for and together with other members
of one's group, and the ultimate degree of dissociation is the
willingness to kill others for the simple reason that they are members
of a hostile group (CP 32-3).




Schmitt believes that political enmity can have many different
origins. The political differs from other spheres of value in that it
is not based on a substantive distinction of its own. The ethical, for
example, is based on a distinction between the morally good and the
morally bad, the aesthetic on a distinction between the beautiful and
the ugly, and the economical on a distinction between the profitable
and the unprofitable. The political distinction between friend and
enemy is not reducible to these other distinctions or, for that matter,
to any particular distinction -- be it linguistic, ethnic,
cultural, religious, etc. -- that may become a marker of
collective identity and difference (CP 25-7). It is possible, for
instance, to be enemies with members of a hostile group whom one judges
to be morally good. And it is equally possible not to be engaged in a
relationship of mutual enmity with a group whose individual members one
judges to be bad. The same holds, Schmitt thinks, for all other
substantive distinctions that may become markers of identity and
difference.




This is not to say, however, that one's conception of moral goodness
or badness, for instance, will never play a role in a relationship of
political enmity. Any distinction that can serve as a marker of
collective identity and difference will acquire political quality if it
has the power, in a concrete situation, to sort people into two
opposing groups that are willing, if necessary, to fight against each
other (CP 37-8). Whether a particular distinction will come to play
this role is not determined by its own intrinsic significance but by
whether a group of people relies on it to define its own collective
identity and comes to think of that identity, as based on that
distinction, as something that might have to be defended against other
groups by going to war. Since the political is not tied to any
particular substantive distinction, Schmitt argues, it is naive to
assume that the political will disappear once conflicts arising from a
particular distinction no longer motivate opposing groups to fight.
Political identification is likely to latch on to another distinction
that will inherit the lethal intensity of political conflict (See ND).
But wherever a distinction has political quality, it will be the
decisive distinction and the community constituted by it will be the
decisive social unit. Since the political community is the social unit
that can dispose of people's lives, it will be able, where it exists,
to assert its superiority over all other social groups within its
confines and to rule out violent conflict among its members (CP
37-45).




Schmitt claims that one cannot judge, from an external perspective,
that a group is morally unjustified in defining its own identity in a
certain way and to introduce political enmity, with the attendant
possibility of killing, to preserve that identity. Only members of a
group are in a position to decide, from the perspective of an
existentially affected participant, whether the otherness of another
group amounts to a threat to their own form of life and thus
potentially requires to be fought (CP 27; See also CT 76-7, 136).
Schmitt's reasoning implicitly relies on a collectivist version of the
logic of self-defence. The decision whether someone else's behaviour
constitutes a threat to one's own life, in some concrete situation, and
the decision whether it is necessary to use reactive or even
pre-emptive violence to remove or to escape that threat, cannot be
delegated to a third person. A group that perceives its own existence
to be threatened by some other group, Schmitt argues, finds itself in
an analogous position. The possibility of third-party mediation is
therefore ruled out in a truly political conflict (CP 45-53).




A political community exists, then, wherever a group of people are
willing to engage in political life by distinguishing themselves from
outsiders through the drawing of a friend-enemy distinction (CP 38,
43-4). A group's capability to draw the distinction between friend and
enemy does not require, Schmitt holds, that the group already possess a
formal organization allowing for rule-governed collective
decision-taking. A people, thus, will have an existence prior to all
legal form as long as there is a sense of shared identity strong enough
to motivate its members to fight and die for the preservation of the
group. And as long as a people exists in this way it is capable,
through its support, to sustain a sovereign dictatorship exercised in
its name (CT 126-35).




Of course, Schmitt's analogy between the collective and the
individual interest in self-preservation papers over an important
difference between the two cases. A political community does not enjoy
simple biological existence. It might die though all of its individual
members continue to live. The drawing of a friend-enemy distinction,
therefore, is never a mere reaction to a threat to a form of existence
that is already given (but see Mouffe 1999, 49-50). Rather, it actively
constitutes the political identity or existence of the people and
determines who belongs to the people. To belong one must identify with
the substantive characteristic, whatever it may be, that marks the
identity of the people, and one must agree that this characteristic
defines a form of life for the preservation of which one ought to be
willing to sacrifice one's own life, in the fight against those who
don't belong (CP 46).




Schmitt realizes, of course, that it is possible for people who are
not willing to identify in this way to be legally recognized as
citizens, and to live law-abidingly, under the norms authorized by
some positive constitution. Liberal states, in Schmitt's view, have a
tendency to fail to distinguish properly between friends and enemies,
and thus to extend rights of membership to those who do not truly
belong to the political nation. In a liberal state, Schmitt fears, the
political nation will slowly whither and die as a result of spreading
de-politicization, it will succumb to internal strife, or it will be
overwhelmed by external enemies who are more politically united (CP
69-79; L 31-77). To avert these dangers, Schmitt suggests,
it is necessary to make sure that the boundaries of the political
nation and the boundaries of citizenship coincide. This demand
explains Schmitt's claim, in the first sentence of *The Concept of
the Political*, that the concept of the state presupposes the
concept of the political (CP 19). The point of this remark is that a
state can only be legitimate if its legal boundaries embody a clear
friend-enemy distinction.




In order to achieve this aim, Schmitt clearly implies, a sovereign
dictator, acting in the interstices between two periods of positive
constitutional order, must homogenize the community by appeal to a
clear friend-enemy distinction, as well as through the suppression,
elimination, or expulsion of internal enemies who do not endorse that
distinction (CP 46-8). In so doing, the sovereign dictator expresses
the community's understanding of what is normal or exceptional and of
who belongs, and he creates the homogeneous medium that Schmitt
considers to be a precondition of the legitimate applicability of law.
Schmitt observes that his concept of the political is not belligerent.
It does not glorify war, but merely claims that a community that is
interested in living politically needs to be willing to go to war if it
perceives its political existence to be threatened (CP 32-5). But the
intended analogy with self-defence seems to make little moral sense,
given that Schmitt's conception of political existence demands the
active elimination of those whom a majority perceives as internal
enemies, and even celebrates that elimination as the essential activity
of the popular sovereign.


 Schmitt's understanding of the political provides the basis for
his critique of liberalism (Holmes 1993, 37-60; McCormick 1997;
Dyzenhaus 1997, 58-70; Kahn 2011). On a descriptive level,
Schmitt claims that liberalism has a tendency to deny the need for
genuine political decision, to suggest that it is neither necessary
nor desirable for individuals to form groups that are constituted by
the drawing of friend-enemy distinctions. Liberals believe that there
are no conflicts among human beings that cannot be solved to
everyone's advantage through an improvement of civilization,
technology, and social organization or be settled, after peaceful
deliberation, by way of amicable compromise. As a result, liberalism
is unable to provide substantive markers of identity that can ground a
true political decision. Liberal politics, consequently, boils down to
the attempt to domesticate the polity, in the name of the protection
of individual freedom, but it is unable to constitute political
community in the first place (CP 69-79; CPD 33-50).


 If this is a correct account of the character of liberal ideology
and of the aims of liberal politics, Schmitt is right to conclude that
liberalism has a tendency to undermine a community's political
existence, as he understands it. But in order for this observation to
amount to a critique of liberalism, Schmitt needs to explain why a
liberal subversion of the political would be undesirable. Schmitt's
political works contain a number of rather different answers to this
question. A first line of thought emphasizes, with appeal to Hobbes,
that a state can only be legitimate as long as it retains the capacity
to offer protection to its members (for Schmitt's engagement with
Hobbes see McCormick 1994; Tralau 2011; and Schmitt's L; SM; VR). And
a state that has suffered a subversion of the political, induced by
liberal ideology, Schmitt argues, will be unable to offer protection
to its members, because it will fail to protect them from the indirect
rule of pluralist interest-groups that have successfully colonized the
state (LL 17-36, L 65-77) and, more importantly, because
it will lack the power to protect them from external enemies (CP
51-3). If a people is no longer willing to decide between friend
and enemy the most likely result will not be eternal peace but anarchy
or subjection to another group that is still willing to assume the
burdens of the political. This first answer, however, is not
Schmitt's last word on why liberal de-politicization is
undesirable. Schmitt seems to admit that a global hegemon might one
day be able to enforce a global de-politicization, by depriving all
other communities of the capacity to draw their own friend-enemy
distinctions, or that liberalism might one day attain global cultural
hegemony, such that people will no longer be interested in drawing
friend-enemy distinctions (CP 35, 57-8). Schmitt, then, cannot rest
his case against liberal de-politicization on the claim that it is an
unrealistic goal. He needs to argue that it is undesirable even if it
could be achieved (Strauss 2007).




Schmitt replies to this challenge that a life that does not involve
the friend-enemy distinction would be shallow, insignificant, and
meaningless. A completely de-politicized world would offer human
beings no higher purpose than to increase their consumption and to
enjoy the frolics of modern entertainment. It would reduce politics to
a value-neutral technique for the provision of material amenities. As
a result, there would no longer be any project or value that
individuals are called upon to serve, whether they want to or not, and
that can give their life a meaning that transcends the satisfaction of
private desires (CP 35, 57-8; RK 21-7; PR
109-62; WS 85-108). But that a world in which one does not have the
opportunity to transcend one's interest in individual contentment in
the service of a higher value would be shallow and meaningless does
not suffice to establish that a willingness to kill or to die for a
political community will confer meaning on a life, much less that it
is the only thing that can do so. When Schmitt claims that the
defence of the political is the only goal that could possibly justify
the killing of others and the sacrifice of one's own life (CP 35;
48-9) he assumes without argument that the life of political
community, as he understands it, is uniquely and supremely
valuable.




Some interpreters have explained Schmitt's hostility towards liberal
de-politicization as being grounded in the view that a willingness to
distinguish between friend and enemy is a theological duty (Mehring
1989; Meier 1998; Groh, 1991; Herrero 2015, 143-177; Vatter 2016). Schmitt argues in *Political
Theology* that all key concepts of the modern doctrine of the
state are secularized theological concepts, which suggests that a
political theory that continues to use these concepts needs a
theological foundation (PT 36-52). In *The Concept of the
Political*, Schmitt claims that all true political theorists base
their views on a negative anthropology which holds that man is by
nature evil and licentious, and thus needs to be kept in check by a
strong state capable of drawing a friend-enemy distinction if there is
to be social order (CP 58-68). This latter thesis, Schmitt
admits, can take a secular form, as in Hobbes or Machiavelli, as the
purely descriptive claim that man is inherently dangerous to man. But
Schmitt suggests that this secular version of a negative political
anthropology is open to be transformed into the view that man, though
by nature dangerous, is perfectible or into the view that man's
dangerous behavior is a mere contingent consequence of a mistaken form
of social organization (PT 53-66; L 31-9). In order to
establish a permanent need for political authority, negative political
anthropology must be given a theological reading that portrays the
dangerous nature of man as an irrevocable result of original sin.
Liberal de-politicization, from this perspective, is to be rejected as
a sign of human pride that rebels against God, who alone, but only at
the end of history, can deliver humanity from political enmity.




Schmitt himself admits that the theological grounding of politics is
based on an anthropological confession of faith (CP 58). And one is
tempted to say that Schmitt's theory turns out to be philosophically
irrelevant if this is really the last word. Schmitt would likely have
replied that the liberal assumption that man is perfectible, that
humanity can overcome political enmity, and that to do so is desirable,
is also an article of faith. The theological partisan of the political,
in Schmitt's view, is as justified in practicing his creed as the
liberal cosmopolitan and to engage in a deliberate cultivation of
political enmity (CPD 65-76). As long as the political theologian can
make sure that the friend-enemy distinction survives, liberals will be
forced to enter the arena of the political and to go to war against the
partisans of the political. And this fight, Schmitt hopes, is going to
secure the continuing existence of political enmity and prevent the
victory of liberal de-politicization (CP 36-7).


## 4. Theory of Democracy and Constitutional Theory




Schmitt's conception of politics tends to radically dissociate
democracy from liberalism and, more controversially, from the
constituted, rule-bound practices of popular election and parliamentary
legislation that characterize the ordinary workings of modern
democracy. How, then, did Schmitt apply his radical perspective to the
sphere of constituted democratic politics in the Weimar Republic? (Valuable overviews in Dyzenhaus 1997; Kennedy 2004; Neumann 2015, 77-304; Preuss 2016.)




In *The Crisis of Parliamentary Democracy*, Schmitt understands
democracy as the self-rule of the people. In a democratic polity, the
decisions taken by the rulers express the will of the people (CPD
25-6). However, the principle of democracy, taken in the
abstract, is open to different and competing interpretations. In
political practice, the identity of the ruling will with the will of
the people is never a simple given. Rather, it is always the result of
an act of identification. When political decisions are taken through
majority vote, the will of the majority is identified with the will of
the people, and every citizen is expected to obey regardless of
whether he voted with the majority (CPD 26-30). But what,
Schmitt asks, is the basis of this identification? If a majority can
overrule a minority, and identify its will with the will of the
people, why should it not be possible for the will of a minority to
express the will of the people? What if a group of democratic
revolutionaries want to establish a democracy in a society where most
people are opposed to the principle of democracy? Would they not be
justified, from a democratic point of view, to abandon majority rule,
to identify their own will with the true will of the people, and to
subject their compatriots to a re-educative dictatorship? Schmitt
suggests that such a dictatorship would still have to be considered
democratic, since it still appeals to the idea that political rule
ought to be based on the will of the people (CPD 28-30). Once
one accepts this claim, the conclusion that Schmitt aims to establish
in *The Crisis of Parliamentary Democracy* will follow: The electoral
institutions that we usually take to be paradigmatically democratic
are not, in truth, any more intimately connected with the principle of
democracy than a dictatorship in the name of the people. The latter was to be legitimated by plebiscites, initiated by a charismatic leader, in which the people, Schmitt argued, should be allowed to give or withhold approval, but never to initiate the question (CPD 32; VV). But this conclusion must surely be an overstatement. Even democratic
dictatorship, however crucial to the establishment of democracy, is
exceptional and limited in time. Hence, there must be a
characteristically democratic condition of legal normality, and a
theory of democracy should tell us what it is. Schmitt's apparent
attempt to dissociate the idea of democracy from any particular method
of will-formation fails to explain why the democratic tradition has
considered institutional provisions like the election of officials or
the extension of the franchise to be characteristically
democratic.




Schmitt acknowledges this problem in his *Constitutional
Theory*. The idea that legitimate political rule must make appeal
to the will of the people, Schmitt now claims, is grounded in the
value of political equality (CT 255-67). Political equality
commits us to the denial of natural differences in status among
citizens. Per se, no citizen has more of a right than any other
citizen else to hold political power. Every citizen, therefore,
should participate on equal terms, as far as practically feasible, in
the exercise of political rule. What is more, where it is necessary to
appoint public officials with special powers not shared by all
citizens, these officials must be appointed through periodical
elections. The value of political equality, then, explains why certain
forms of will formation are considered to be more intimately
associated with the idea of democracy than others (CT
280-5). However, Schmitt's concession to the value of equality
comes with a twist. The political equality that constitutes a
political community, Schmitt argues, cannot be based on the
non-exclusive equality of all human beings as moral persons. Every
political community is based on a constitutive distinction between
insiders and outsiders or friends and enemies. A democratic political
community, as much as any other, must therefore rest on some marker of
identity and difference that can ground an exclusive form of political
equality which will only apply to insiders (CT 257-64). Schmitt
goes on to define democracy as a political system characterized by the
identity of ruler and ruled. Ruler and ruled are identical if and only
if the rulers and all the ruled share the substantive identity that
the community as a whole, in deciding who its enemies are, has chosen
to turn into the basis of its political identity (CT 264-7; See
also CPD 8-17).




If all those who live together as legally recognized citizens of a
constituted democratic state happen to distinguish between friend and
enemy in exactly the same way, the equal participation of all citizens
in the political process and the electoral appointment of officials
would indeed be a requirement of democratic political justice. It
would be possible, moreover, to identify the outcomes of the political
process with the will of the people, and to consider them
democratically legitimate, even if some citizens find themselves in a
temporary minority. But the reason why it has become possible to
identify the outcomes of democratic procedure with the will of the
people is not to be sought in inherent virtues of democratic procedure
itself. Rather, the identification is possible only in virtue of the
prior identity of all citizens as members of a group constituted by a
shared friend-enemy distinction (CPD 10-14; LL 27-28). If, contrary to
our initial assumption, those who live together as legally recognized
citizens of a constituted democratic state do not share a political
identity in Schmitt's sense, the identity of the rulers with all the
ruled will no longer obtain, and the constituted democratic state will
no longer be truly democratic. The rule of the majority will
degenerate into an illegitimate form of indirect rule of one social
faction over another (HV 73-91; LL 17-36; L
65-77). Sovereign dictatorship, then, is still necessary to
create the substantive equality that grounds the legitimate operation
of constituted, rule-governed democratic politics.




The understanding of democracy so far outlined informs Schmitt's
interpretation of the Weimar constitution (Dyzenhaus 1997,
38-101; Caldwell 1997, 85-119; Scheuerman 1999,
61-84; Hofmann 2002, 117-52; Kennedy 2004,
119-53; Neumann 2015, 77-304; Preuss 2016; Schupmann 2017). A democratic constitution, Schmitt argues in his
*Constitutional Theory*, is the product of an exercise of
constituent power on the part of a politically united people (CT
75-77, 125-30, 140-6). The creation of a democratic
constitution must not be thought of along the lines of a social
contract, since it presupposes the prior existence of a people as a
political unity, as explicated in the *Concept of the
Political* (CT 112-3; Bockenforde 1998). If the
people did not already exist, Schmitt reasons, it would not be able to
give itself a constitution, and a constitution not given by the people
itself to itself would not be a democratic constitution. In giving
itself a constitution a politically united people determines the
concrete form of its political existence, but it does not bring itself
into existence. Since a democratic constitution is a unilateral
determination, on the part of an already existing people, of the
concrete form of its political existence, the people's constituent
power must be inalienable. As long as a people exists it can always
decide to give itself a new constitution (CT 140-1). Schmitt's
theory of constituent power has recently received a lot of attention
from authors who believe it might help to reinvigorate constituted
democracy (Kalyvas 2008, 79-186; Colon-Rios 2012).




Schmitt recognizes that it would be implausible to assume that a
written constitution represents a conscious choice of the popular
sovereign down to its last detail. The revolution of the German people
in 1918 that led to the creation of the Weimar constitution, for
example, expressed the German people's conscious decision for a
democratic, republican, and federal state, committed to the principles
of the rule of law, and endowed with a parliamentary system of
legislation and government (CT 77-8). But in addition to these
general principles of political and social order, the Weimar
constitution came to contain a large number of specific provisions
that do not reflect conscious decisions of the popular sovereign (CT
82-8). Schmitt argues that it would be wrong to treat such
particular constitutional norms as possessing the same normative force
as the people's decision for a concrete form of political existence,
which is expressed in the basic principles implicit in the
constitution. It is wrong, therefore, to regard a constitution as
nothing more than the set of all particular constitutional norms, and
to assume that all these norms are equally subject to constitutional
amendment. Even where, as in Weimar, the positive constitution
provides a procedure that seems to allow for the amendment of any
particular constitutional norm, it is to be understood, Schmitt
argues, that the core constitutional principles chosen by the
constituent power are not open to formal abrogation. To claim that
they are is to advocate a usurpation of the constituent power of the
people by a mere party or faction (CT 77-82, 147-58).




Schmitt thinks that this argument will hold even where an initiative
to amend the constitution requires a supermajority. Political
decision-taking on the basis of the simple majority rule is legitimate
only if citizens share a political identity, in which case they will
also agree on a set of constitutional fundamentals. Where they don't,
the identity of ruler and all ruled no longer obtains, and majority
rule will consequently become a mere license for the oppression of
those who happen to be in the minority. Such oppression, Schmitt
argues, does not become any more legitimate where a super-majoritarian
requirement is raised and met. That a numerical majority is relatively
large and a numerical minority is relatively small does not entail,
once there is no longer a shared political identity, that we are any
closer to an identity between the ruler and all the ruled than in the
case of a simple majority (LL 39-58). Schmitt concludes that it
would be absurd to take the view that the formal procedures of
amendment provided by a democratic constitution can legitimately be
used to overturn its constitutional fundamentals (LL
85-94). Before 1933, Schmitt employed this argument to oppose a
Nazi seizure of power (*Machtergreifung*) in legal form
(Bendersky 1983, 107-91). It should also be noted that his claim
that there must be limits to constitutional amendment in a democratic
constitution based on the principle of popular sovereignty, and that
these limits legitimate the notion of a 'militant democracy' that is
willing to curb individual rights to defend itself, has been very
influential in postwar constitutional thought, in Germany and
elsewhere (see Ehmke 1953, 33-53; Fox and Nolte 1995,
18-20; Conrad 1999; Colon-Rios 2012, 126-51). However,
Schmitt's constitutional theory did not amount to an unqualified
defence of liberal democracy. While Schmitt denies the possibility of
changing the fundamental nature of an established constitution from
within, and decries the dangers of the tyranny of a mere numerical
majority, he nevertheless affirms the possibility of fundamental
constitutional change through sovereign dictatorship, and he makes it
clear that the German people, in a renewed exercise of their
constituent power, might legitimately choose a non-liberal and
non-parliamentarian form of democracy (CT 75-7). The exclusionary
nature of the friend-enemy distinction that is to be enforced through
extra-legal sovereign dictatorship, to provide a basis for the normal
functioning of the constitutional order, throws further doubt on the
democratic nature of Schmitt's constitutional theory (see
Kraft-Fuchs 1930; Vinx 2013a).




Schmitt's ambiguous position towards the Weimar system was equally on
display in his interpretation of the dictatorial powers of the
president of the Weimar Republic under art. 48 of the Weimar
constitution (Dyzenhaus 1997, 70-85; Vinx 2016). By partially assimilating
the president to a sovereign dictator, Schmitt defended an unusually
extensive interpretation of the president's authority that in effect
subjected all constitutional rights to the discretionary interference
of the executive headed by the president (See DP). Liberal rights were
to be respected, as the German people had chosen to create a liberal
constitution, but only on the condition that public order and security
had been secured. For Schmitt, individual freedoms, even where
constitutionally guaranteed, are to be regarded as concessions of the
state to the individual since they are subject, in the last instance,
to suspension through a sovereign decision on the exception (CT
80-1, 156-8, 235-52). Schmitt, moreover, vehemently
fought against the idea that the protection of the constitution ought
to be assigned to a constitutional court. A constitutional court,
Schmitt argued, would either have to limit itself to uncontroversial
cases in which constitutional law provides determinate guidance or
take upon itself the responsibility to determine the political
identity of the people. But for a court to assume that responsibility
would, in Schmitt's view, have amounted to an illegitimate usurpation
of the constituent power of the people, as much as an attempt to bring
about fundamental constitutional change through formal constitutional
amendment (HV 12-48; TV 26-41).




Schmitt apparently hoped, throughout the Weimar Republic's years of
relative stability, that presidential dictatorship in defence of the
existing constitution might be sufficient to create a condition of
normality that would allow the Weimar Republic to function. But this
hope was disappointed in the final crisis of the Weimar Republic.
Schmitt's writings during that crisis started to toy with the view
that the president should attempt to assume a role much closer to full
sovereign dictatorship than even Schmitt's own interpretation of art.
48 would have permitted and to engineer an authoritarian
transformation of the positive constitution (LL 85-94). This
project failed when the Nazis managed to take power through the kind
of abuse of constitutional procedure that Schmitt had warned against
(Kennedy 2004, 154-83). After a very brief period of hesitation
Schmitt nevertheless offered his services as a legal advisor to the
Nazis. He was careful to emphasize that the Machtergreifung amounted
to a true revolution, despite its seemingly legal form, to maintain
consistency with his view that a constitution cannot undergo
fundamental change through formal amendment (SBV 5-9), but he
was quick to translate his identitarian theory of democracy into the
racialist idiom preferred by the Nazis (SBV 32-46) and started
to advocate an institutionalist theory of law that was supposed to
take its bearings from the authentic form of life of the German people
(TJT 47-57, 89-95). Schmitt himself presented this shift
as a fundamental reorientation of his legal-theoretical approach from
a 'decisionist' perspective to 'concrete order thought'. It is
doubtful, however, whether the term 'concrete order' designates more
than the situation of normality that Schmitt had always taken to be
the basis of determinate legality. His claim (or hope) was simply that
the Nazis have successfully restored normality (but see Croce and
Salvatore 2013, 11-76). The national socialist movement, in
Schmitt's view, had managed to orchestrate an exercise of constituent
power and to create a new constitution; one that was willing to draw
uncompromising distinctions between the German people and its internal
and external enemies. Given this description of the
*Machtergreifung*, Schmitt's political and constitutional
theory seems to imply that Hitler's rule was perfectly legitimate. It
therefore seems unnecessary to postulate a radical discontinuity
between Schmitt's views before and after 1933 (Dyzenhaus 1997,
82-101; Mauss 1998; Scheuerman 1999, 113-39; Hofmann 2002,
152-88).


## 5. Liberal Cosmopolitanism and the Foundations of International Order


 Schmitt's conception of the political grounds a distinctive
interpretation of democracy and constitutionalism in the domestic
sphere. It led Schmitt to an equally distinctive account of the
foundations of international legality that has received increasing
scholarly attention in recent years (Scheuerman 1999, 141-73;
Scheuerman 2006; Odysseos and Petito 2007; Axtmann 2007; Hooker 2009;
Slomp 2009; Legg 2011; Benhabib 2012; Neumann 2015, 419-492; Koskenniemi 2016; Hathaway and Shapiro 2017; Kalyvas 2018). Schmitt is a staunch defender
of sovereignty, but he does not embrace a flat rejection of
international legality. Rather, Schmitt appears concerned to outline
the conditions under which sovereign political communities, with
differing political identities, can co-exist in a shared international
legal order.




Two important consequences for international theory of Schmitt's
conception of politics are immediately obvious. First, it implies that
every true political community must claim a legally unrestricted ius
ad bellum. If the distinction between friend and enemy that
constitutes a group's political existence is not drawn by the group
itself but by someone else, or if the decision whether to go to war in
a concrete situation is no longer taken by the group but by some third
party -- be it a hegemonic state, an international organization,
or an international court -- the group no longer exists as an
independent political community (CP 45-53). The second key
consequence of Schmitt's conception of politics for international
theory follows from the claim that the political existence of a group
must be based on a particular identity that serves as the substance of
a friend-enemy distinction. Such an identity, of course, must differ
from the identity of any other political community for the group in
question to achieve a political identity of its own. It would be
impossible for there to be a plurality of political communities
-- and hence, since political community is only possible where a
group has enemies, for there to be any political community -- if
there were only one legitimate form of social organization or communal
life (CP 53-8). These two consequences of Schmitt's conception
of politics imply two conditions of the legitimacy of international
order, at least if one makes the assumption, with Schmitt, that
political communities have an unconditional right to preserve their
existence (CP 48-9; CT 75-7). Given this assumption, a
legitimate international order must be able to accommodate a plurality
of political communities with different, self-determined political
identities. What is more, it must recognize as legitimate the ius ad
bellum claimed by all groups that have successfully constituted
themselves as political communities. A conception of international
order that violates any of these two conditions would be incompatible
with political existence and therefore illegitimate.




These demands on legitimate international order seem to be a recipe
for anarchy. Would it not have been better for Schmitt to admit that
his view implies a denial of international legal order? Schmitt's reply
to this objection is twofold. On the one hand, he argues that there is
at least one historical instance of a functioning international order
that lived up to his criteria of legitimacy. On the other hand, Schmitt
claims that the attempt to subject the use of force on the part of
political communities to external legal constraint and control, apart
from constituting an assault on the possibility of political existence,
will only lead to greater disorder and violence than we can expect to
experience in a system that recognizes the political.




Schmitt's first reply is based on an interpretation of the nature of
European political order in the period from the establishment of the
modern sovereign state to the beginning of WWI. In Schmitt's account,
this period was not a period of mere anarchy. Rather, it was
characterized by the existence of a public law governing the relations
between European states, the ius publicum Europaeum (NE 140-212). The
main pillar of the ius publicum Europaeum, according to Schmitt, was a
strict separation between the ius ad bellum and the ius in bello. On
the level of ius ad bellum, all independent states were recognized to
possess the right to go to war on the basis of their own judgment of
justice and necessity. The legal order of ius publicum Europaeum, in
effect, did not distinguish between just and unjust war. Rather, both
sides in a conflict between sovereign states were by default recognized
as legitimate belligerents (NE 140-71). Moreover, since both states in
any conflict were held to be legitimate belligerents, states not
directly involved in a conflict were taken to possess the right to
choose to back either side or to remain neutral (DCW 53-74). This
framework, Schmitt argues, allowed European states to bring about a
highly effective containment of the negative consequences of war, and
thus of the dangers of political existence. The abstraction from the
justice of war allowed states to make peace without being hampered by
the need to apportion moral blame. The freedom to side with either
party in a conflict, or else to remain neutral, allowed states to
contain conflicts by balancing or simply by staying out of the fight.
Most importantly, however, the mutual recognition of legitimate
belligerency allowed for the effective enforcement of stringent
constraints on the permissible means of warfare on the level of ius in
bello. Inter-statal warfare during the period of the jus publicum
Europaeum, according to Schmitt, distinguished carefully between
combatants and civilians and abstained from using methods of warfare
that might endanger the lives or the property of civilians (NE 142-43,
165-8).




This containment of war, Schmitt claims, was premised on the
willingness to bracket the question of justice on the level of ius ad
bellum. Once one takes the view that a war can be legitimate on one
side, while being illegitimate on the other, one is forced to
conclude, Schmitt argues, that it is morally wrong to grant the status
of legitimate belligerency to those who are judged to fight without a
just cause, and equally wrong to assume that they ought to enjoy the
same in bello-rights as those who fight justly (NE 320-2; CP
54-7). Moreover, once one separates between legitimate and
illegitimate belligerency, it will no longer be possible to argue that
other states have the right to side with either belligerent or to
remain neutral. Rather, third parties will be seen to have a duty to
side with those who fight justly (DK 26-53). The abandonment of
the idea that all participants in a war among states are equally
legitimate belligerents, Schmitt concludes, inevitably undercuts the
containment of war achieved in ius publicum Europaeum (PB
286-90). Unsurprisingly, Schmitt rejected the project of
creating an international legal order based on a 'discriminating
concept of war' that would subject the use of force on the part
of sovereign states to substantive criteria of moral legitimacy and
external legal control. He regarded such developments as little more
than attempts on the part of the victorious western allies to brand
any violent German effort to revise the outcomes of WWI as illegal and
thus as unjust, and to give themselves license for the application of
means of coercion and for the use of methods of warfare that would
have been considered as illegitimate in the context of mutually
legitimate belligerency (PB 184-203; NE 259-80). Schmitt
argued that international legalization on the model of just war theory
would not prevent coming wars. It would merely make them more total,
as it would encourage opponents to regard each other as absolute
enemies worthy of elimination (NE 309-22; Brown 2007; Slomp
2009, 95-111).




However, Schmitt acknowledged that the era of ius publicum Europaeum
had come to an end after WWI, together with the global hegemony of the
classical European concert of sovereign states (GO
101-11). Schmitt therefore aimed to assess the chances for the
emergence of a new global order analogous in structure to ius publicum
Europaeum and he made an attempt, in *The Nomos of the Earth*,
to explicate the presuppositions of the kind of international order
exemplified by ius publicum Europaeum. For it to be possible for
groups that are related by enmity nevertheless to co-exist in a shared
framework which limits the consequences of war mutual enmity must be
prevented from reaching the level of absolute enmity. Enmity, even
while it may require one to defend one's own political existence
against the enemy, must not require the complete destruction of the
enemy's political and perhaps of his physical existence. Ius publicum
Europaeum, in Schmitt's view, had been capable of preventing absolute
enmity through an alignment of friend-enemy distinctions with
territorial boundaries (Zarmanian 2006). If the forms of life of two
opposed political communities are each tied to and expressed in a
particular territory, then the two groups will be able, Schmitt
argues, to spatialize the friend-enemy distinction between them (NE
42-9). From the point of view of any one of the two groups, the
protection of its political existence will require it to repel any
attempt on the part of the other group to dispossess it of its
territory. But it will not require the one group to interfere with or
to destroy the political existence of the other group if to do so is
unnecessary for the protection of its own territory. All political
conflicts, under such circumstances, can be reduced to territorial
conflicts, and this entails that all conflicts can in principle be
contained as long as it is possible to divide territory in a way that
will allow both groups to maintain their form of life (NE
143-8).




For political conflicts to be reducible to territorial conflicts,
opposing political communities must of course accept the principle of
non-intervention in the internal affairs of other political
communities. The reduction of political conflict to territorial
conflict would be impossible if political allegiances were spread out
across borders. If some of those who share the identity that we have
made into the basis of our political life live in a territory
controlled by another political community we will have to concern
ourselves with their fate. If we perceive them to be oppressed by that
other community, we may feel compelled to go to war for them, even if
the other community has not aggressed against our own territory. To
territorialize the friend-enemy distinction, hence, one must ensure
that all and only the people who share the same political identity live
in the same territory (GO 86-8, 96-101). Some political identities,
however, do not lend themselves to a spatialization of the political. A
community whose political identity is premised on the promotion of
liberal-humanitarian values which it takes to be universal, for
instance, must concern itself with the question whether other political
communities respect those values and be willing to interfere if they
don't. It cannot accept a reduction of political conflict to
territorial conflict, as its political identity purports to be
non-exclusive. A global order on the model of ius publicum Europaeum
will therefore remain unattainable, and a global civil war
characterized by absolute enmity will be unavoidable, Schmitt
concludes, as long as the world's foremost powers are committed to
universalist ideologies that imply a rejection of the spatialization of
political conflict (GO 90-5; VA 375-85).




As Schmitt would later point out in *Theory of the Partisan*,
the distinction between absolute and contained enmity gives rise to a
distinction between absolute, real, and conventional enemies (TP
85-95; see also CP 36-7; Slomp 2009, 112-26). A
conventional enemy is an enemy within an established system of
containment, whereas a real enemy is an enemy that can be made, though
perhaps only after conflict, to settle for a territorial
division. Absolute enmity, by contrast, exists wherever there is a
conflict that is not amenable to territorial settlement. In Schmitt's
view, it is the powers who, for ideological reasons, refuse to accept
a spatialization of conflict that are to blame for absolute enmity and
the unbridled violence it entails. Those who are real enemies, but who
need not be each other's absolute enemies, then, have to find a way to
recognize each other, to divide the world among themselves, and to
hold down political forces that must reject the territorialization of
political conflict. Schmitt's *The Nomos of the Earth*,
accordingly, portrayed the mutually recognized appropriation of the
globe by mutually non-intervening, territorially-based political
communities as the true foundation of all legitimate international (and thus of national)
legal order (NE 42-9, 67-83; GO 77-9; see also Herrero 2015, 21-49). During the
Nazi-period, Schmitt applied this view to a justification of
Nazi-aggression, by portraying Nazi-Germany as a local hegemon willing
to support a global territorial division based on a principle of
non-intervention. Schmitt hoped, for a while at least, that America
would reveal itself to be Germany's 'real enemy' and that
it would be willing to engage in a mutual division of spheres of
influence. In this vein, Schmitt interpreted the Monroe-doctrine as
the first act of hegemonic appropriation of a sphere of interest that
might come to form part of a new global order, if only America were
willing let Germany impose its own Monroe-doctrine on continental
Europe (GO 83-90). For as long as they were militarily successful,
Schmitt celebrated the Nazi wars as the birth pangs of a new
'nomos of the earth.' (LS section 20)




Of course, Schmitt's hopes were disappointed when the war, after
catastrophic bloodshed, ended in a stalemate between two hegemonic
powers that were both unwilling to repudiate universalist ideology,
but nevertheless quite successful in preventing their own conflict
from escalating into open war. Schmitt, though, did not question his
claim that international order ought to be based on territorial
division. It became fashionable in circles around Schmitt to refer to
the cold war as a 'global civil war' (Muller 2003,
104-15) while Schmitt, in *Theory of the Partisan*,
expressed his admiration of Mao's and Ho Chi-minh's partisans for
exhibiting a "telluric" character and a "tie to the
soil" while rejecting "world revolutionary or technicistic
ideology." (TP 20-2) The new order was still supposed to
emerge from a distribution of the globe among internally homogenous
peoples tied to a certain land.




It should be obvious that Schmitt's theory of the presuppositions of
international order is closely related to his account of the conditions
of well-functioning domestic legality (Vinx 2013b). The spatialization of conflict
requires political communities strong enough to enforce internal
political homogeneity. But political communities are unlikely to be
able to enforce internal homogeneity if they have to live in an
international environment that lacks a clear spatial order because it
is controlled by powers that are ideologically hostile to the
spatialization of conflict. Legitimate domestic order and legitimate
international order, for Schmitt, are thus two sides of the same coin.
Both require a defense of the political, as Schmitt understands it.
(Axtmann 2007) Schmitt's suggestion, however, that the preservation of
the political as he understands it is a necessary condition of
legitimate domestic and international legality seems rather hard to
swallow in light of the catastrophic experiences of the 20th century.
Schmitt was an acute observer and analyst of the weaknesses of liberal
constitutionalism and liberal cosmopolitanism. But there can be little
doubt that his preferred cure turned out to be infinitely worse than
the disease.