THE SCHMITT OF IT ALL

FURTHER UNTANGLING PICCONE'S NEW POPULISM

In the penultimate post, I explored Paul Piccone’s idea of the new populism: the idea that insofar as populism has become a demand for the revitalization of organic community, rooted in local norms and values, mitigating deracinated individualism and the erosion of the family¹, it enters an objective, existential confrontation with managerial liberalism. The latter is the ideology of the managerial class, but more than just an ideology, it is the raison d'être of that class’s legitimacy as ruling class. Its legitimacy of rule is grounded in its access to a heroic rationality that (purportedly) allows it to engineer society. Such social engineering is of course a magnanimous gesture founded upon the bureaucratic paternalism that imbues the administrative state. So, not only does Piccone’s new populism challenge the social engineering operations of the managerial class, but it also negates that class’s legitimizing ideology of bureaucratic paternalism – the very heart of managerial liberalism.

As alluded to in that post, Piccone’s analysis of this new populism exhibits markers of the influence of Carl Schmitt. The Schmittian concept most explicitly noticed in that post was Schmitt’s analysis of the friend-enemy distinction. This idea, along with the “state of exception,” are probably Schmitt’s most widely known contributions to political thought, today. For those unfamiliar with the friend-enemy distinction, it is the idea that some people pose an existential threat.

Such people are not just rivals. One can be a rival without posing an existential threat. For a professional baseball player, the other team, across the diamond, are rivals. An imaginary social gospel movement that wanted to ban professional sports as corrupting the youth would be a lot closer to a Schmittian enemy. An enemy is someone who poses the danger of your own destruction. This distinction is often marshalled in the context of nations, but it doesn’t need to be limited to those contexts, and as we’ve seen this is an apt characterization of the conflict between the new populism and managerial liberalism.

In this post I want to flesh out, even if only in a preliminary way, some other contributions from Schmitt that are helpful for appreciating Piccone’s analysis of populism. Before that, though, a few matters should be cleared up. First, in some quarters, Schmitt is considered intrinsically radioactive. This is because of his well-documented collaboration with the Nazis. This has led to him being characterized as Hitler’s jurist, and the like.² While it can hardly be suggested that Schmitt’s actions as the National Socialists came to power were uncontroversial, this line of argument is usually as ill-informed as it is disingenuous. The reality was more nuanced than such caricatures reveal.³

In any event, appeal to ad hominem argument is an abdication of intellectual honesty. Either his ideas have merit, or they don’t; let the matter be decided on the substance, not puerile fearmongering. Nor do I accept the claim that any thinker’s ideas constitute an inviolable whole, so that to accept any set of ideas is to follow on down a bottomless rabbit hole leading to inevitable acceptance of everything the thinker believed. Regular readers here know that I call myself a right-wing Marx (for example, see here), so obviously I reject such holism as fallacy. And Aristotle defended slavery; can we then make no use of this thought for fear of becoming slavery apologists?

Again, the most charitable description of this kind of attack is puerile fearmongering. Anyway, that’s how I see it. Also, as I mentioned in my second post to this substack (see the sole footnote), I suspect that probably Schmitt was the object of a prosecutorial fantasy⁴ in Stanley Kramer’s film Judgment at Nuremberg – with Burt Lancaster’s character standing in for Schmitt. Despite its clear bias, the film doesn’t do a terrible job in explaining Schmitt’s position.⁵

Whether or not influenced by this association to Nazism, there is a particular turn often taken over the last decade or so by those who want to associate Schmitt in general – and his friend-enemy distinction in particular – to populism. This move is seen from defenders and detractors alike. The approach is to set up the conflict as one between “the people” and “the elites.” Those who criticize such a set-up do so for the positing of abstract essential categories that have no grounding in material reality. These idealist abstractions facilitate boiling populism down to a crude and vague resentment. And if that’s the extent of the conflict that an analysis uncovers, it’s plausible to attribute populist energy to resentment arising from deprivation or perceptions of unfairness and injustice.  

Furthermore, no doubt, at times populism has used those categories and it has at times resonated with such resentment. But such a criticism entirely misses the mark with Piccone’s theory of the new populism. And the point here isn’t, as so many others have done, to try and find some transhistorical, essentialist, connection between Schmittian ideas and populism, but to leverage those Schmittian ideas that are specifically relevant to Piccone’s new populism. So, to be clear, when using the term populism and characterizing it as partaking of the friend-enemy distinction, or any other Schmittian notion, I am invoking Piccone’s analysis of the new populism, new in the existential conflict constituting its present material conditions.

Another Schmittian source often invoked to explain populism is the idea of identity democracy, elucidated in his 1923 book, The Crisis of Parliamentary Democracy. Though this, interestingly, was the very first Schmitt book I ever bought – oh so long ago – in fact I’ve still never read it. Or, at least, certainly nothing close to completely. So, I’m hesitant to say too much on this argument, but I can offer some thoughts on the interpretation of it provided by one commentator’s summary of the case.

Franco Peirone explains that Schmitt’s identity democracy is premised on an identity between ruler and ruled. This is meant as a remedy to the many ills of representative democracy that Schmitt had discussed, in this book and elsewhere. This identity of ruler and ruled, and indeed among the ruled themselves, is premised upon the need for a high level of homogeneity among “the people.”⁶ This homogenized identity eliminates the need for those governance practices which Schmitt found so problematic in liberal democracy: e.g., deliberation, discussion, and division of powers. It manifests as a direct, plebiscitary democracy, in which the people simply vote yes or no to questions “posed to them from above.”⁷

This certainly is taking Rousseau’s idea of a General Will to the Nth degree. For those who have read my book (The Managerial Class on Trial), this idea does seem to offer a version of democracy that, at least ostensibly, solves the managerial class ventriloquist problem. (For those who haven’t read the book and are new to this substack, a very brief introduction to the ventriloquism concept is here.) Having said that, though, it doesn’t particularly seem to make sense, and would be an odd claim for Schmitt since, writing in the 1920s, he would have been expected to be well-aware of Robert Michels’ “iron law of oligarchy” theory from his 1911 book Political Parties.

One of Michels’ main arguments for oligarchy’s persistence lays in the ability of those who set the agenda of and framing for a vote to thereby influence the vote’s outcome. (For a brief introduction to Michels’ arguments, see here.) So, this hardly makes sense as a homogenized political identity; whether we’d call this a separation of ruler and ruled, it certainly is a separation of agenda-setters and agenda-takers. In Michels’ frame: agenda-setters effectively are rulers. So, as mentioned, I’ll have to investigate this a little more to determine if there’s anything useful to us, here.

If Peirone’s description is correct, though, it isn’t very compatible with Piccone’s theory of the new populism. For one thing, this homogenized identity – whether Schmitt meant it that way or not – is all too easily read as referring to ethnic identity, and ethnic identitarians (rightly or wrongly) have certainly taken comfort from Schmitt’s work. Piccone though would not have taken much comfort or theoretical scaffolding from such an analysis, since he was strongly of the opinion that the federalism he saw as being required to institutionalize the objective of the new populism needed to be geographical in focus, rather than ethnic.⁸ Also, while he didn’t emphasize it as strongly as the communitarian dimension of his theory, Piccone saw the political desiderium of the new populism as rooted in a rejuvenation of local, participatory democracy.⁹ So, this line of theorizing doesn’t seem promising, but again I’ll look more into it.

An area of Schmitt’s thought, though, which Piccone did considerably promote, explore and defend¹⁰ was the former’s notion of the crisis in European jurisprudence.¹¹ And there are valuable lessons in it for situating – historically and theoretically – the new populism. By the end of WWII Schmitt was focusing on the dangers of legal positivism. This was the legal theory that the only law that was really law was that enacted by the state. While there’s an obvious pragmatic appeal to such a notion, Schmitt argues that those who promoted the idea failed to appreciate the dangers it posed.

One of the consequences of this development was the separation of legitimacy and legality.¹² The legality of this division captured the idea that the party holding governance power could weaponize the law against its political opponents. This is what the Nazis did when they gained power, and these days – as noted in my last post, in light of the January 6th Committee, the recent Bannon and Jones trials, and prosecutorial hounding of Trump – many on the populist side see a comparable weaponization of the law against the ruling class’s political opposition in contemporary America. Indeed, this description of Schmitt’s from another work dealing with the same topic probably would resonate with American populists today:

Whoever controls 51 percent would be able legally to render the remaining 49 percent illegal. The majority would be permitted to use legal means to close the door to legality, through which they themselves entered, and to treat partisan opponents like common criminals, who are then perhaps reduced to kicking their boots against the locked door.

As serious a threat as this "super-legality" was, though, it was only the more salient manifestation of the legitimacy-legality split which legal positivism underwrote.¹³ Schmitt also refers to processes he calls “motorized legislation” and “motorized decrees.” Here is the idea that under the complexity and rapidity of change in the modern industrialized world, it has become (or at least been perceived or alleged to have become) necessary for the legislature to churn out “laws” at an equally breakneck speed. Among the consequences of this motorizing has been the legislature’s delegation of law-making to regulatory agencies. As Schmitt appreciated, herein lay the source of the massive growth of the administrative state.

A companion development was the motorization of decree, in which the complexity and rapidity of circumstances is considered to justify superseding legislative processes, given the executive’s greater nimbleness. In Germany, again, this Weimer precedent was exploited by the Nazis with the Reichstag Fire Decree and the Enabling Act.¹⁴ Though, this motorization of decree also has an uncomfortable resonance for those of us in the (supposedly rule-of-law) Western countries who saw our polity collapse into government by decree during the COVID regime. Such circumventing of the legislative process, into the decision-making hands of wise and expert authorities is the operational logic of managerial liberalism’s social engineering ethos (for example, see here). So, the problem Schmitt sets out in his analysis of the crisis of European jurisprudence seems awfully familiar and constitutes the effective battleground for the present moment in the new populism.

Schmitt’s solution though is also valuable for theoretically underpinning Piccone’s new populism. Schmitt rejects both legal positivism and the natural law position, which he accuses of having fueled the critical adoption of the former in the first place. Rather, he argues that European jurisprudence, which is our best line of defense against this out-of-control motorization of the state’s legality, must be understood as a product of an evolutionary process which has stood the test of time across many European contexts. The foundation of legitimate (as opposed to purely legal) law, for Schmitt, was neither to be found in the abstract axioms of “natural law” nor in the pragmaticism of legal positivism; rather, it was found in the trial and error working out of the law within the lived experience of human societies and communities.¹⁵  

In this article, Schmitt distances himself from the volkgeist (spirit of the people) characterization of the law offered by Friedrich Carl von Savigny (interesting in light of his appeals to “identity” democracy), but he does endorse Savigny’s “doctrine of the unconscious development of law.” This European jurisprudence which Schmitt sees offering a bulwark against the rise of the administrative state and its weaponized legality is an organic, emergent force, rooted in the historical experience of human communities who have taken and offered refinements of this legal tradition.

And while he doesn’t say it explicitly, it seems clear that such refinements, contributing to the tradition of unconscious development of the law, must have been arrived at through the filter of such communities’ own local, organic norms and values. In any event, clearly Schmitt roots his hope for rolling back the destructive forces of motorized legislation and legal positivism in the organic community traditions that have sustained European jurisprudence as an unconscious, emergent order.

Not only then does this Schmittian analysis provide insight into how we got to the situation of the new populism – in which the populist demand for recuperation of their wounded and sometimes shattered communities enters an existential confrontation with the nature of the managerial class – but he further points to a historical pillar upon which we can begin theorizing the underpinnings of that new populism.

I concede that talk of organic community, if it is not to descend into one of Mosca’s political formula, must have a rigorous founding. Though I’m no metaphysician, I’ve been interested in the phenomenological efforts in this direction through various efforts to leverage the insights of both Husserl and Heidegger. Ultimately, though, regular readers will be unsurprised to hear, I’ll ultimately want to root such an idea in materialist realism: historical and ultimately biological. But this idea of emergent law, arising from organic community, seems like a good place to begin unearthing such a foundation.

All that lies ahead. So, if you haven’t yet, please…

1. It’s worth mentioning that, in Piccone’s analysis, the administrative state is not the only means by which the managerial class has eroded the family, contributing to the deracination of the individual and the crippling of organic community: the managerial class’s corporatization of the market and economy has been an essential part of the process, too. The former is focused upon here because it’s what’s relevant to the discussion of Schmitt’s influence, but the latter needs to be addressed in this series of articles on what I’ve called the objective objective of populism. As a hint of the direction of such an analysis: isn’t it odd how the current populist angst over Disney’s integration of CRT and queer aesthetic into its programming seems strangely blind to the question of how we got here? Was it ever wise for parents to outsource the life-lesson narratives that informed their children’s development to commercial corporations?

2. Interestingly, a major contribution to such English language reception of Schmitt was Hayek, in his influential book, The Road to Serfdom. As will be seen, here and in future posts, this characterization by Hayek, and the role he played in setting the template for early Schmitt evaluations, turns out to be somewhat ironic, as the two Germanic thinkers turned out to have more in common than Hayek seems to have appreciated.

3. Joseph W. Bendersky, “Carl Schmitt at Nuremberg,” Telos 1987, no. 72 (June 20, 1987): 91–96, https://doi.org/10.3817/0687072091; Joseph W. Bendersky, “Carl Schmitt’s Path to Nuremberg: A Sixty-Year Reassessment,” Telos 2007, no. 139 (June 20, 2007): 6–34; G. L. Ulmen, “Carl Schmitt: Theorist for the Reich,” Telos 1984, no. 59 (March 20, 1984): 201–12, https://doi.org/10.3817/0384059201; Paul Piccone and G. L. Ulmen, “Schmitt’s ‘Testament’ and the Future of Europe,” Telos 1990, no. 83 (March 20, 1990): 3–34, https://doi.org/10.3817/0390083003.

4. As the sources in the above note observe, after the war Schmitt was interrogated by Allied prosecutors at Nuremberg several times. In the end, he was never charged with any war or collaborationist crimes. Those who try to dismiss Schmitt with his collaboration not only frequently neglect to mention that the Allied investigators declined to charge him, but that the Nazis, in the parlance of our time, cancelled him in 1936, having concluded his commitment to the National Socialist program was opportunistic and fraudulent. Some Schmitt scholars believe it was only his friendship with Goring that kept him out of a concentration camp.

5. Schmitt of course wasn’t a judge and obviously therefore didn’t do the specific things of which Lancaster’s character was accused. The point more emphasizes the moral and pragmatic debate over the virtues and possibilities of collaborating with, to moderate, a fanatical regime.

6. One of the other places that Schmitt made this identity democracy argument was in Carl Schmitt, Legality and Legitimacy, trans. Jeffery Seitzer (Durham: Duke University Press, 2004), originally published in 1932. The gist of the argument as he presents it there is that insofar as a democratic polity fails to be homogenous in this way, it becomes merely a form of conquest by the majority over any minority. This initiates the shift to mere legality discussed later in the main text of this post.

7. Franco Peirone, “Populism and Katékon. The Two Souls of the Schmittian State,” Nuovi Autoritarismi e Democrazie: Diritto, Istituzioni, Società 3, no. 1 (June 22, 2021), https://doi.org/10.13130/2612-6672/15827.

8. Piccone and Ulmen, “Schmitt’s ‘Testament’ and the Future of Europe,” March 20, 1990; Paul Piccone, “The Crisis of Liberalism and the Emergence of Federal Populism,” Telos 1991, no. 89 (September 21, 1991): 7–44, https://doi.org/10.3817/0991089007; Paul Piccone, “Federal Populism in Italy,” Telos 90 (Winter 1992).

9. In relation to the actual history of populism, there is an interesting parsing here. Certainly, calls for plebiscitary democracy have been common in the history of populism. No doubt this observation fuels some of the tendencies to associate Schmitt with populism. However, populist movements, at least in North America, have often had much more ambitious notions of how democracy was to be rejuvenated, including appeals to the kind of participatory democracy valorized by Piccone. And such participatory democracy was valued for its capacity to act as a “school of citizenship,” transcending the standard representative democracy that is so susceptible to managerial class ventriloquism.

10. Piccone and Ulmen, “Schmitt’s ‘Testament’ and the Future of Europe,” March 20, 1990; Paul Piccone and Gary Ulmen, “‘Schmitt’s “Testament” and the Future of Europe’: Four Exchanges,” Telos 1990, no. 85 (September 21, 1990): 93–148, https://doi.org/10.3817/0990085093.

11. Carl Schmitt, “The Situation of European Jurisprudence,” in Carl Schmitt’s European Jurisprudence, ed. Armin Von Bogdandy, Reinhard Mehring, and Adeel Hussain (Baden-Baden: Nomos Verlagsgesellschaft, 2022).

12. Otto Kirchheimer quotes a Congress of Vienna era anonymous French journalist to convey an evocative, poetic sense of this distinction: “A lucky general who by chance controls an army is not for that reason – even with the best possible conduct – a real power, while a legitimate king remains a power to be reckoned with even if he is in exile or in shackles”: Otto Kirchheimer, “Legality and Legitimacy,” in The Rule of Law Under Siege: Selected Essays of Franz L. Neumann and Otto Kirchheimer, ed. William E. Scheuerman, 1st edition (Berkeley: University of California Press, 1996).

13. Interestingly, Schmitt bookended the Nazi years with this concern over the split in legitimacy and legality. Consider that his last major work, prior to the National Socialists consolidation of power, published in 1932, was: Carl Schmitt, Legality and Legitimacy, trans. Jeffery Seitzer (Durham: Duke University Press, 2004).

14. Technically, the Enabling Act wasn’t an executive decree, but given the degree to which, by that point the Nazis had cowed the Reichstag, it effectively operated in the same way, toward the same end.

15. This brings us back to the point made in the note above: Hayek’s terrible over-simplification of the work of Schmitt prevented him from seeing that they shared a common commitment to an organically evolved conception of legitimate law. Yes, in Schmitt’s case, the kernel of that tradition was Roman Law, while for Hayek it was English Common law, but the fundamental commitment to a trial and error, emergent form of legitimate law was the same.