—J.H.H. Weiler, co-Editor-in-Chief, International Journal of Constitutional Law
[Editors’ Note: This piece will be published in the next edition of the International Journal of Constitutional Law (I•CON) as part of the editorial]
Sooner or later, I have been telling myself, we, too, editors of learned journals and the like will face this issue, which has been at the center of controversy in other areas of public life. A European colleague recently sent me a letter he received from a student-edited American law journal in which the editors asked him to remove two footnote references to Carl Schmitt because of his Nazi past. My colleague sought my advice.
I should immediately say that my reflections here are personal and, given the complexity of the issues, are not necessarily shared in full or in part by my fellow editors of I•CON and EJIL. I should add that my views are not categorical, and I believe a (civil) public debate would be useful in trying to think through this issue. I remind our readers that both I•CON and EJIL have introduced a new rubric—Letters to the Editors (https://doi.org/10.1093/icon/moab010)—which will appear on our respective blogs as well as in print, with the attendant gravitas and longevity. This issue seems to me a perfect topic where letters (up to 500 words) could be one appropriate medium for such debate.
In my answer to my European colleague, I first expressed the view that “cancelling” Schmitt from public law and political theory scholarly discourse was an idea or policy I could not support. So I advised my colleague to reject the student editors’ request. And, as is for everyone to see, both EJIL and I•CON publish articles that discuss or reference Schmitt. We are journals of public law, so it would be odd if Schmitt did not pop up regularly.
But I also expressed empathy and sympathy with the underlying sentiment and concern of the student editors of the journal in question. Whence this empathy and sympathy?
Schmitt was an enthusiastic and active member of the Nazi Party. The Kronjurist of the Third Reich, it was he who intellectually and academically helped “kosher” the infamous Enabling Law of 1933 that solidified Hitler’s takeover of the German state. Yes, he has made fundamental contributions to political theory and public law, and on some issues his writing, whether in agreement or disagreement, could be considered indispensable. But his is not a case of a famous author or composer or orchestra conductor or film maker who happened, in his or her “private” life, to be a racist or misogynist or an anti-Semite. (One can be all three together—I know a few.) This “gallery of rogues” is lengthy, especially, but not only, the further we look into the past. We could close shop—there would be little left to publish—if that became a defining test.
Schmitt is one of those whose very writing oft displays intellectual affinity to National Socialist ideology, and in some respects that ideology is integral to such work—the Mein Kampf for the thinking person. To judge from the contemporary adulation he receives from some in both the left and right, it appears that these writings are either unknown or are conveniently forgotten.
Here is a brief sample. In his writing on democracy and in his debates with, say, Hermann Heller, his insistence on “homogeneity” as a prerequisite for democracy may seem innocuous enough. Yes, after all, some form of demos is ontologically part of democracy discourse. But how to understand demos? Schmitt himself was able, in the climate in which he wrote, to avoid euphemisms and spell out, unadorned, the implications of his understanding of “homogeneity.” Thus, in his Die geistesgeschichtliche Lage des heutigen Parlamentarismus, we find: “Zur Demokratie gehört also notwendig erstens Homogenität und zweitens—nötigenfalls—die Ausscheidung oder Vernichtung des Heterogenen” [Democracy therefore necessarily involves first homogeneity and secondly—if necessary—the elimination or annihilation of heterogeneity]. No less.
The next step follows naturally. Referring approvingly to, inter alia, Turkey’s expulsion of its Greek community, Schmitt legitimates what today we refer to as “ethnic cleansing:” “Die politische Kraft einer Demokratie zeigt sich darin, dass sie das Fremde und Ungleiche, die Homogenität Bedrohende zu beseitigen oder fernzuhalten weiß” [The political power of a democracy is shown by the fact that it knows how to eliminate or keep away the foreign and the unequal].
The “unequal”? We do not need to guess what he had in mind here. Consider the following example: Reichsgruppenwalter Staatsrat Schmitt convened a conference in 1936 of leading figures in the legal world to discuss “Das Judentum in der Rechtswissenschaft” [Judaism in Legal Science]. In the concluding address to the conference, Schmitt does not shy away from the implication of the theoretical construct: the cleansing begins with books (“Säuberung der Bibliotheken”) but inevitably moves to demonization of their authors: “Der Jude hat zu unserer geistigen Arbeit eine parasitäre, eine taktische und eine händlerische Beziehung” [The Jew has a parasitic, a tactical and a mercantile relation to our spiritual work]. As such, that particular heterogeneous element is defined as a “Todfeind” [mortal enemy]. Some “foe.” The logic of Schmitt’s final statement is unassailably pure. His concluding words speak for themselves: “Was wir suchen und worum wir kämpfen, ist unsere unverfälschte eigene Art, die unversehrte Reinheit unseres deutschen Volkes. “Indem ich mich des Juden erwehre”, sagt unser Führer Adolf Hitler, ‘kämpfe ich für das Werk des Herrn’” [What we seek and what we fight for is our own unadulterated kind, the untainted purity of our German people. “By resisting the Jew” says our leader Adolf Hitler, “I am fighting for the work of the Lord”]. Yes, this excommunicated Catholic loved to talk and write about “spirituality” and the “Lord.”
So how do I reconcile my earlier stated position of principle, namely that I cannot agree with “cancelling” Schmitt from scholarly discourse and the deep revulsion that the man and much of his writing evoke in me?
I try in my own work, when Schmitt makes an appearance, always to find a way to remind my readers who we are dealing with in a footnote or even in the text itself. (Schmitt, notoriously, encouraged his colleagues to avoid citing Jewish authors, and when unavoidable to identify them as Jews. Would there be a measure of poetic justice in avoiding citing Schmitt unless truly necessary, and when unavoidable to identify him as a Nazi?)
Why Schmitt, you may ask, and not many others with a variety of “dark pasts”? Well, first it is not only Schmitt. But still, I do not do the same for many others. It is the classical problem of drawing lines. But for me Schmitt is an “easy” case, not even close to whatever line one may end up drawing. And this for three reasons: first, it is the seriousness of his failings, both in thought and deed; second, these failings are integral to a not insignificant part of his work; but mostly, it is because of the fact that Schmitt is a contemporary (yes, he died in 1985 mourned by a whole generation of adoring former students) who cannot hide behind the “that was the climate of the time” excuse. Yes, it might have been back in the 1930s, and many of the great and mighty were, indeed, seduced. And here is the rub. To my knowledge, like his fellow traveler Martin Heidegger (about whom the sorely missed George Steiner was scathing on this very issue), he never uttered a word of remorse for his Nazi past until his death. Errare humanum est, perseverare autem diabolicum. It is the combination of these three factors that impel me to add a metaphorical plaque to the intellectual statue of Schmitt reminding the reader who the man was.