The German State of Exception: From Carl Schmitt to Gerhard Schröder

In an excellent article in last weekend’s Neue Züricher Zeitung ("Energien einbinden und die Mechanik durchbrechen", 2/3 July), Uwe Justus Wenzel points to some disturbing precedents for the rhetoric employed by German Chancellor Gerhard Schröder and his sympathizers to justify the Chancellor’s successful call for a no-confidence vote to bring about early elections. Such a move – which involved Schröder requesting of members of his hitherto perfectly functional parliamentary majority that they refrain from voting in his favor – is clearly contemptuous of the spirit of the German Constitution, and since a 1983 judgment of the German Constitutional Court in a similar case, it is also confirmed to be contrary to its letter. Here Wenzel:

One is reminded a bit of the rhetoric of the “state of exception” that in Germany was cultivated above all, but not only, by the dubious jurist Carl Schmitt. In the state of exception, Schmitt wrote in 1922, “the force of genuine life breaks through the crust of a mechanism grown torpid [erstarrt] in continual repetition.”

...Sections of the half-hour speech with which the German Chancellor attempted yesterday in the Bundestag to justify the holding of the no-confidence vote moved entirely within the field of resonance of this political romanticism of the “state of exception”…. Schröder called upon his listeners to “depart from business as usual” [“Abschied von Gewohntem” zu nehmen] and to break from “the customary rules of the political mechanism”, in order to “develop further” the red-green social model. To hold on to what has been, he said…, leads to “torpor” [Erstarrung].

…There is another element in all this, to which the Green party parliamentarian Werner Schulz tried – unsuccessfully – in a personal declaration before the vote to call attention: whoever measures the “mood in the country” on a daily basis and tries to integrate it into the conduct of politics, whether in the parliament or in the government, risks substituting public opinion surveys for representative democracy.

A “democracy of the popular mood” is well suited to undermining the institutional rationality of a parliamentary system. With it, one would well and truly have returned to Carl Schmitt, who did not hide his contempt for liberal democracies.

Carl Schmitt was arguably the leading legal theorist of Nazi Germany – a state that was notable for its elevation of the supposedly healthy “Volksgeist” or “spirit of the people” above the “mere” rule of law. In a sort of intellectual legerdemain reflecting either remarkable bad faith or ignorance and possibly both, certain academic commentators – first and foremost, the ultra-trendy Italian philosopher Giorgio Agamben – have tried to connect Carl Schmitt and his theory of the “state of exception” to none other than George W. Bush. There is about as much chance of George Bush having been influenced, whether directly or indirectly, by Carl Schmitt as there is of Gerhard Schröder being influenced, say, by James Madison. In Germany, however, Schmitt remains a standard reference in academic discussions of law and legal theory. Schmitt’s works are widely available in sober new editions (for example) brought out by the Duncker & Humblot Verlag, a highly reputable academic publisher. Indeed, Schmitt is increasingly becoming an authoritative reference on law throughout Europe. Thus, for example, Schmitt’s analysis of constitutionality is recommended by Philippe Manin, a professor at the Sorbonne, in his manual of European "constitutional" law - much indeed in the spirit of Schmitt, it did not seem to bother Manin that the EU did not in fact have a constitution at the time of its writing - Droit constitutionnel de l'Union européenne.