PLAY IT AGAIN, SCHMITT

A LITTLE DISCUSSED SELF CORRECTION WITH BIG TIME RELEVANCE TO POPULISM

In my last post, I explored some of the implications of Carl Schmitt’s thought for Paul Piccone’s new populism, conceived as being objectively locked into an existential conflict with managerial liberalism (see, here). I observed that it wasn’t uncommon to point to certain Schmittian ideas in analyzing populism, though I also explained how much of that analysis wasn’t compatible with Piccone’s rendering. As I’ve drilled deeper down into Schmitt’s work, though, it has become increasingly clear to me that there is an important arc in his intellectual biography which not only is often elided, but which in the eliding confuses clear thinking about the relevance of his intellectual legacy to understanding the new populism.

So, hoping that you’re not sick of Schmitt just yet, let’s dive in a little deeper. You’ll recall that in that last post I observed a Schmittian friend-enemy dimension to the new populism. This notion captured Piccone’s point that insofar as the new populism was premised upon the recovery of organic community, it was locked into a zero-sum contest with managerial liberalism, which had to undermine any community values or norms that acted as obstacles to managerial class social engineering. I did modify that Schmittian appropriation with the acknowledgement that that conceptual association has often been applied to portray populism as a crude movement of knee-jerk resentment. I explained how such an association was irrelevant to Piccone’s analysis of the new populism.

However, we should also consider that it is precisely this association between the friend-enemy distinction and populism which many commentators have felt authorized them characterizing populism as being authoritarian. Let’s unpack a bit the thinking here. In the 1920s, Schmitt published several works which indeed can be read as authorizing authoritarian government and the friend-enemy distinction was part of that conceptual fabric. Most famously, the friend-enemy distinction was spelled out in The Concept of the Political.¹ A widely considered companion piece was the earlier, Political Theology. The latter explored the basis for sovereignty. That analysis was rooted in decisionism. Famously, Schmitt argued that the ultimate root of sovereignty lay in the state of exception. As expressed in the book’s notorious opening line: “Sovereign is he who decides on the exception.” And it was upon that decision of the exception that sovereignty was based and out of which emerged the political and legal order. The order was generated by the decision – ex-nihilo.

A society may have certain myths about who is or isn’t sovereign – say, “the people,” for instance – in the normal course of life. It is though in abnormal times, when the real sovereign is revealed, by being able to effectively impose the state of exception: e.g., a national emergency, a health emergency. As opposed to liberalism and democracy, which Schmitt perceived incapable of dealing with political reality, due to an excessive emphasis on discussion, and a tendency to obscure the reality of the enemy: it is only when someone makes the hard decision, grounding a realist political situation, imposing the state of exception, that genuine sovereignty is revealed, and the political and legal order established.   

I assume it’s obvious why this analysis would appeal to those with an obsession (pro or con) over authoritarian rule. Decisionism seems to entail the definitive establishment of sovereignty arising precisely out of a strongman’s imposition of his will upon the community. Sovereignty is revealed under the abnormal conditions in which the hand of the willful leader imposes itself. Such thinking complements the aspirational Caesarism (or Bonapartism) celebrated by many on the dissident right. It also helps explain why so many critics of populism, noting the operation of the friend-enemy distinction in its attitudes and expressions, conclude that populism is inherently authoritarian and premised upon the elevation of a demagogue, strongman. (Which, of course, explains the managerial class’s default depiction of Donald Trump.) This doesn’t strike me as consistent with Piccone’s analysis of populism, but one can certainly see the point of the critics.

However, the interesting thing is that those who perpetuate this authoritarian interpretation of Schmitt’s ideas generally – and the friend-enemy distinction in particular – be they the critics or the apologists, oddly overlook that, in his own lifetime (and not even that far along in it), Schmitt rejected this decisionism, rooted in the abnormal condition. Rather than a jurisprudence of abnormality, Schmitt adopted a jurisprudence of the normal. And, while this recognition is intriguing for simply understanding Schmitt’s own intellectual journey, it is especially pertinent for properly associating the friend-enemy distinction to the “objective objective” (see, here) of Piccone’s new populism.    

In the language of legal scholarship, Schmitt transitioned from decisionism to institutionalism. But the cause of that transition lay precisely in complications arising from the friend-enemy distinction. As observed above, Schmitt’s decisionism was on full display in those works from the 1920s; from the early 1930s on, though, he abandoned this notion of an ex-nihilo creation of sovereignty, through the willful decision of the imposing sovereign. This was made explicit in the 1934 book, On the Three Types of Juristic Thought, but was already evident in the 1932 book, Legality and Legitimacy. And by the time of the essay discussed in the last post, “The Situation of European Jurisprudence,” published in 1950 though likely written in 1944, institutionalism had become the lodestar of his legal analysis.²

In Political Theology, Schmitt conceives of the decisionism of establishing sovereignty as the concrete establishment of a political order. And, in The Concept of the Political, the political is conceptualized as, at its core, the recognition of the friend-enemy distinction. This association, though, created a problem for Schmitt which he initially glossed over and those who prefer to read a rationalization for authoritarian government into his work encourage being elided. The problem is, as we’ve observed, the friend-enemy distinction is based on an existential threat. This is an objective condition. But for anyone to establish a political situation, based upon an existential threat, requires such an existential threat to already exist. And that requires the polity, or community, in which sovereignty is supposedly established, to itself already exist as, in Schmitt’s phrase, a concrete order. If, though, it’s the objective nature of the already existing community that grounds the friend-enemy distinction, then sovereignty is not created ex-nihilo from a willful decision, but rather from the nature of the community and its institutions.

Those who read the last post will be starting to appreciate the importance of this insight. And it was this insight that drove Schmitt’s transition to institutionalism. Instead of basing his legal theory on the abnormal – the state of exception – Schmitt now appreciated that legal theory had to be based upon the normal: the concrete, routine life of people living in organic communities. Perhaps that will make clear – but if not, let’s do so – that Schmitt’s use of “institution” should not be misunderstood as referring to a formal organization, with offices, mission statements, C-suites and the like. Instead, the term is being used in a way more akin to its older Latin derivation, as referring to the customary arrangement or set-up of things. This usage might still be recognizable in conventional English in referring to “the institution of marriage” or “the institution of the family.” The institutions are the community’s established way of doing the things that make it that specific community.  

So, at this point, Schmitt becomes clear that to understand the law, it is necessary to recognize rules and decisions as inherent in the social fabric from which they emerge. The function of the formal law of the state then is not the creation of a polity ex-nihilo, out of a willful decision, but rather protection of the norms that underpin that already existing institutional, “concrete order” which is the social reality of the organic community. While it couldn’t be expected to be front of mind for the average English language reader in the 21st century, it would be expected of an elite educated German of the early 20th century to know that the Latin derivation of “concrete” is the past participle of concrescere, literally “to grow together.” Community institutions then are those "grown together" by the members of the relevant community.³ So, it is the specific living patterns of conduct and models of relationship that are at the core cohesion of such a community. 

In fact, the problem with legal positivism, which Schmitt’s original decisionism could have been filed under, is that it threatens to cripple these patterns and relationships of the organic community. By imposing upon those concrete, organic patterns and relationships a legal fabric that in its abstractness is inevitably misaligned with that concrete, lived reality: not only would the law fail to support the norms of the concrete, existing community, but it would lead to their erosion. The contractualization of the family – not only of the marriage bond, as a kind of business arrangement, but the legal positioning of the children as discrete, atomized rights holders – points in the direction of the institutional erosion resulting from law that is not rooted in the organic experience of the concrete order. It was a very short step from child emancipation from families – the severing of a legally abstracted, presumed implicit contract between parents and child – to the state criminalizing parents who seek to exercise guardian prerogative over the transexualizing of their children in defense of the latter’s right to transition.

Avoiding such erosion of the institutions of organic communities depends upon legal norms that lean on the normal practices and customs embedded in this set of patterns and relationships that Schmitt calls the concrete order. Legal norms, functioning properly, in Schmitt’s view, eschew any appeal to “higher,” abstract principles as the basis for them. Rather the legal norms can only be a product of the concrete order of the organic community. In his own words, the norm “presupposes a normal situation and a normal type,” not “derived from general norms,” but rather “generated by their specific order and for their specific order.” 

There’s certainly more to be said on this topic, and hopefully we will have occasion to revisit it at some point. For now, I hope the key take-aways have become clear. First, those who leverage Schmitt’s friend-enemy distinction to smear populism as inherently authoritarian simply don’t understand Schmitt’s intellectual underpinning as he revised it in his institutionalist-turn. Second, understanding Schmitt’s revision of the implications of the friend-enemy distinction allows a better appreciation of how deeply that revision was rooted for him in the foundational institutions of the organic community. That understanding only lends further validity to Piccone’s argument for the new populism as now locked into a zero-sum, existential confrontation with managerial liberalism.

To succeed, the new populism must recuperate organic communities, crippled by the social engineering ethos and bureaucratic paternalism of the managerial class (through both the administrative state and corporate commodification of those communities’ concrete social life). The managerial class’s agenda and interests require the administrative and commercial colonization of such organic communities: e.g., reducing workers to a labor commodity that can be rationally displaced by lower wage options across the world; atomizing individuals, reduced to deracinated consumers of opiates and pornography; positioning children as independent rights holders, requiring protection from parental interference to optimize their self-actualization, sexually and commercially. And that of course just scratches the surface.

The new populism must recuperate organic community; the managerial class must engineer and commodify it. Without such recuperation the populists will eventually disintegrate into monadic, deracinated individuals dependent upon the managerial class’s commodifying and administrative engineering for their material and psychological sustenance. With such recuperation, though, the managerial class’s social engineering and bureaucratic paternalism will face a constant institutional bulwark against its self-enriching and self-aggrandizing colonization of civil society.

These are mutually incompatible missions. This is a zero-sum battle. It is Schmitt’s friend-enemy existential conflict. And hopefully now we understand it, and the stakes, a little better.

1. The book-length version was published in the 30s, but it was based on an original, cause célèbre 1927 article. However, in the preface to the book length version Schmitt qualified the decisionism associated to the original article with his newfound institutionalist perspective.

2. It’s worth addressing here the objection that this revision for Schmitt was less about intellectual integrity than political pandering to the new bosses in town, Hitler, and his National Socialists. And it’s hardly as if Schmitt wasn’t predisposed to crass opportunism during the Nazi years. However, leaving aside his evident move toward institutionalism prior to 1933, it is a bit of an odd claim. Certainly, one could argue a turn to the emphasizing of organic community might be well received by those striving to legitimize an Aryan order. However, to do so at the expense of subverting claims to legitimate sovereignty via a strongman’s willful exercising of the state of exception – especially in the early years of “the Third Reich” – hardly seems calculated to endear him to the new regime. In fact, one of Schmitt’s biographers, Joseph Bendersky, who wrote the introduction to the English translation of On The Three Types of Juristic Thought, makes the exact inverse argument. It had been one thing to advance decisionist thinking to legitimize severe actions in protection of the Weimer constitution against having its weaknesses exploited by the Nazis; it was quite another thing to continue endorsing such decisionism when it served to endorse Hitler’s exercise of super-legality. Personally, I’m persuaded that the logic of his arguments are sufficient grounds for the theoretical revision. In any event, it was just a couple years after publication of The Three Types that Schmitt was formally denounced by the official publication of the SS, putting his career and life in peril for years to come. So, it doesn’t seem that the new bosses were especially impressed.

3. I don’t read German and have never seen any discussion of the actual German word, and its etymological implications, which Schmitt used and that is standardly translated into English as “concrete.” It would be interesting.