Carl Schmitt for the Masses: The Problem of "Legitimacy"

What is it that makes a state, a government, an administration legitimate? Carl Schmitt explores this question in his book" "Legality and Legitimacy."

Before we begin, I found putting together this “Coles Notes” version of “Legitimacy and Legality” more difficult that I thought it would be before starting. I am neither scholar nor expert and working from my notes which are generally for my personal use, I found it challenging to easily communicate the essentials of this work. Of the Schmitt books I have read, I actually think “Legality and Legitimacy” made the biggest impression on me. For one, I no longer think of any western parliamentary system as legitimate. I now question the act of voting. I struggle with the question of “what next” once you realize that you no longer wish to give up the “right to resistance.” I hope you will benefit from this presentation.

Foundations

Let’s dive into another of Carl Schmitt’s seminal works: “Legality and Legitimacy.” Like all of his writings, it is dense, learned, and makes no apologies to the reader. Your lack of learning or inability to follow his argument is on you the reader. There are a lot of unspoken, awkward questions that underlie modern constitutional and parliamentary democracies, questions that we don’t usually ask or even want to ask. Why do people agree to be ruled? If state power is inherently coercive, is this coercive power legitimate? If it is, why is it, and under what conditions? Can a government only be truly non-coercive when 100% of the population gives ascent to be ruled? Do our modern systems of government satisfy adequately the conditions for legitimacy? Does the voting process make a society “democratic?” Can elections ever make a government truly legitimate?

As noted in the previous paragraph, all states are coercive. There is always the threat of force and violence when talking about any form of the state. What gives that violence legitimacy? What gives the state the “right” to act coercively towards the general population? Is there something beyond the mere use of force that grounds its use? Is force based on nothing more than its own application, that is, the will to power? Schmitt attacks these questions and more.

Along side of this, Schmitt works with the understanding that the condition of legitimacy is the necessary foundation which would justify a citizen giving up or suspending their “right to resistance.” Why should I subordinate myself to the ruling authority and give up my own freedom to act in my own interests? What form of state legitimacy would overcome my right to resistance? Schmitt argues that only a properly grounded legitimate state can make that ask from its citizens. The benefit of this legitimacy is that the state is able to rule without needing to engage in active violence and the citizenry is able to allow themselves to be ruled without constantly needing to resist this rule. This the compact between governed and government.

Legislative, Jurisdiction and Administrative States

Schmitt opens the book talking about the different types of states and their relationship to the law. In a legislative state, society is in theory governed by a set of norms as expressed through laws produced by lawmakers. Schmitt wants to draw our attention to the reality that while the laws themselves do not rule, they do function as societal norms meant to govern behavior. Those who exercise power are expected to do so on the basis of the law, that is, in the name of the law. They are expected to govern within a set of norms and not through the exercise of mere power.

Ideally, this is supposed to be a “closed system” in which everyone accepts the basic norms of society as expressed in and through its laws. As long as everyone lives within this system and everyone accepts the norms of the system, it is reasonable to suspend your “right to resistance.” This is the idea of the unitary state. A single set of norms, expressed in a single set of laws allows society to function in a state of “legality.” Because the state is unitary and thus the expression of a single set of norms, this gives the state legal justification for enforcing those rules coercively if necessary.

For Schmitt, morality is not a private thing and cannot be a private thing. All laws are an expression of morality, an expression of norms. You cannot have two competing sets of norms in society, because that would create two competing sets of laws, two legal realities. This would create the conditions for civil war. The idea of the separation of religion and politics, church and state, is a fiction. If you have laws in a society, you have an operative morality. And if you have an operative morality, there is a set of beliefs, almost always some form of religious belief, for which those norms are an expression.

What he is laying out in these early portions is the foundation for a critique of the “marketplace of ideas.” Schmitt argues that this is a fiction. It simply is not the case that there are numerous ideas out there in society competing equally and fairly for attention. We are told that when ideas emerge from that competition they will be true or the best. Any functioning state must by definition be unitary, working from one set of norms over and above all others. Its system of laws will give expression to that set of norms. There is always a dominant set of beliefs that “ground” a legal system and the state. If you have two genuine competing set of beliefs, you have the conditions for either civil war or for the oppression of the minority, or minorities. Ideas do not compete on a level playing field, and the best ideas do not emerge out of that competition. The very fact that a society has a legal system says that one idea has already won that battle.

The jurisdiction state is one based on the decisions of judges and not on the laws crafted by lawmakers. In a jurisdiction state, judges interpret a combination of case law, past precedent, and even oral tradition, applying “timeless” norms to specific decisions of the day. Because of this, the jurisdictional state is the most conservative. The judge renders decisions directly in the name of the law without necessarily a reliance on the need for the mediating expression of norms in written laws, legislation and constitutions. As long as the judge is not arbitrary, but faithfully interpreting the content of the received tradition and the normative context of the unified society, this form of governance retains legality and legitimacy.

The administrative state is the final form Schmitt identifies. It typically has a head of state, a sovereign person, who provides legitimacy for the regulations of the administration. In this form of state, the emphasis is upon utility and purposefulness of regulations as opposed to pre-legal ideas of law and justice. It is intended to function “amorally,” that is without reference to any pre-existing ideas of law and justice. Utility is supposed to take precedent over the normative, over morals. The stated focus is on efficiency and effectiveness and a reliance upon trained experts who are supposed to be free from ideological and political influences.

In practice, Schmitt acknowledges, most modern states are either intentionally or unintentionally a mix of all three elements, the legislative, the jurisdictional and the administrative.

Modern Liberalism and the “Closed” State

The intent of most modern states is that they are formed out of a closed system of rationality that does not require them to be “grounded” in anything. Their legitimacy is not supposed to be dependent upon religion, nature, or tradition. They are self-contained. The power and legitimacy of the system comes from the rationality of the system itself. However the system is judged, it must be judged on the basis of its own rationality from within the system itself. It has no higher foundation or authority than itself. Reason determines law. Reason determines the morality that is expressed in the law.

Schmitt argues that because the system is not “grounded” in anything other than human reason, it will inevitably break down into formalism and functionalism. People will go through the motions of doing things according to the dictates of the system even when evidence is saying that to do so will be destructive to society’s wellbeing. The system will also be defended on grounds that we must defend the system because the system needs to be maintained because this is the system. Free speech debates in the US have degenerated into this type of formalism. We need to allow something like “Drag Queen Story Hour” because if we don’t allow this, the whole notion of free speech will break down. We must defend something we believe is immoral and destructive to the social order, because if we don’t allow it, this will cause the system which governs our society to break down. As these types of things accumulate the system becomes more non-sensical and unstable. The system breaks down because it is based on itself, that is, nothing more than a closed system of human rationality.

The parliamentary system gives the illusion that as long as all the participants within the system accept the rationality of the system and are willing to work within the system, what will happen is that all of society’s conceivable aspirations, goals, movements, and ideas will swirl around within the system allowing them to percolate. As that process works itself out and matures, certain ideas will emerge as “the will of the people,” accepted by all. They will have risen to the top in a value-neutral way without violence or disruption. The ongoing social conversation within this closed system of rationality then establishes legitimacy for the laws and structures which are eventually put into place through this process. This is the essence of the enlightenment idea of the “marketplace of ideas.”

Schmitt’s primary problem with this system is that the idea of “the marketplace of ideas” is not itself subjected to that same marketplace of ideas. It is chosen before the conversation even begins. Because of the nature of the closed system of rationality that is the modern enlightenment parliamentary system, you are required to accept this system and not another one as the system within which society will work. The market place of ideas must be given unconditional obedience prior to putting that system in place. Its value must simply be accepted. As long as people believe in the rationality of the system, that through it we are able to uncover truth and justice, the constitution based parliamentary system will work. Because it is not grounded on anything outside itself, as soon as people stop believing that the system is doing what it says, that the market place of ideas does not produce the best ideas, the system’s inherent contradictions will render it increasingly unstable. As the system grow more unstable, increasing amounts of force and coercion will be needed to keep it stable.

In this, Schmitt also noted that in practice constitutional and parliamentary systems are not really closed systems based merely on their own rationality. They rely on the cultural relic of the system of princely absolutism, where the prince’s right to rule is based on a metaphysical hierarchy. The prince has the right to rule and the right to have his pronouncements obeyed unconditionally because that is the way that God has set up the universe. The modern liberal state did away with the prince and the metaphysical hierarchy that supported and grounded the prince’s rule, but it did so in such a way that it kept society’s willingness to accept law and order as part of the way that the universe is. Laws must be obeyed. Why? Because laws must be obeyed.

Enlightenment liberalism relied on cultural artifact of God and hierarchy, but simply swapped out the closed system of rational law for the God and prince. “Progress” meant being free from the restraints of the norms present in the feudal system. But once that cultural well ran dry and there was no metaphysical structure within the culture capable of filling the well anymore, there would be no source of anything upon which to base laws other than this is what me and my friends think is a good thing to do. That, and laws must be obeyed because we say they must be obeyed. The great promise of the enlightenment was that it would be able to ground morality on rationality alone. This has been the great failure of the enlightenment, that it has been unable to do so. Our system of legality and governance is becoming increasingly unstable as a result.

The Administrative State and the Elite

In talking about the administrative state, Schmitt makes the observation that it generally functions unbound by norms and without spirit. One does not affirm an oath to an “administrative directive.” The bureaucracy in an administrative state is supposed to be a “value-neutral” entity by design. It is meant to give the appearance that its basis is technical-rational, that it is merely interested in the smooth running of the state. The technical civil service is meant to be viewed as merely an apparatus of the true legitimate power. It is not supposed to be a power.

The intent of the administrative state is that it will be staffed by a politically disinterested elite whose job is to manage the laws and dictates of the real powers. They are meant to be stewards of the public interest. The bureaucracy is supposed to act as a stabilizing influence in the government.

This really only works, argues Schmitt, when your elite are:

1. Incorruptible.

2. They are separated from the pursuit of money and profit.

3. They have a superior education.

4. They feel a strong sense of duty and loyalty towards the state and its effective operation.

5. They cannot be co-opted by interest groups.

6. They are a stable class of people. Entry to this class is not open to the whole of society.

7. They have a high personal and moral quality.

8. The elite self-recruits and decides for itself who will and will not be a member.

He argues that without these characteristics, the administrative state will become its own power, beholden to money interests, co-opted by various interest groups and largely corrupt and incompetent. Without a strong metaphysic and culture of virtue to ground an elite class—that is, a strong culture of elites whose elite status is properly grounded in an enduring and replicating social order—the administrative state is likely to fall victim eventually to the necessity of a dictator: someone who will be able to impose order on the administration through the force of his own will, his own self-rationalizing power.

For me, hearing Schmitt make this case, what I realized is that in the west, especially in America where the egalitarian impulse is strong, there is an inherent rebellion against this idea of an elite class. Schmitt is in essence making the argument that if you wish to have a society run by a competent administrative state, this society cannot at the same time be egalitarian. This runs counter to fundamental enlightenment myth of equality. What to do? The west, and America in particular, compensated for the idea of an established self-replicating elite managerial class with two things: meritocracy and technocracy.

The idea of the meritocracy is to replace an established ruling class with an open competition. The idea is that society’s best and brightest would rise to the top and would form the talent pool from which our administrative class would be drawn. But if you look back up at the list of qualities Schmitt identifies, the idea of a meritocracy undercuts this because it incentivizes the most ruthless and ambitious and career focused people to pursue work in the administrative state for the rewards and prestige they bring. They are inherently corruptible. They may be smart and ambitious, but they are often morally compromised. The meritocracy demands it.

The belief in technocratic administration, though, was supposed to counter-act this. It is the policy manual writ large. The idea of the technical systems approach to running things is that policies, processes, structures, plans are put in place that transcend the individual person. The argument made is that of consistency. We want consistent, repeatable results, but also consistent results regardless of the person who occupies the position. We rely on technique to produce similar results regardless of who staffs the administration and regardless of which administration is in power.

The experiment in the west, to substitute the idea of a cultivated virtuous elite class, for a process of meritocratic competition combined with technique based administrative systems has been disastrous. What ends up happening in practice is that you have administrations staffed with hyper-competitive professionals focused most of all on preserving and advancing their careers with an administrative system that is largely designed to run the same regardless of which people staff the system. This results in an endless focus on implementing, refining and expanding the multitude of processes, without much concern for actual results. This is also why no one is ever punished for failure. If the processes are responsible, then what is needed is not for bureaucrats to be fired, but rather, we need more bureaucrats to work on and refine the processes so that it does not happen again. We need to fix the system. Or we need a new layer of processes to be developed to manage the failures of pre-existing processes. The whole structure of the meritocratic technical administrative state becomes an arena in which differing players battle for personal career supremacy.

Customary and Legislative Law

Delving further into what is it that actually “grounds” the state, Schmitt next introduces two types of law: legislative law and customary law. The two categories are fairly straightforward. Legislative law is that which is conceived and developed rationally by lawmakers; customary law is that which has developed through a long process of social experimentation and refinement. Customary law may or may not be written down.

Schmitt argues that any governing force that tries to rely on its own self to develop law so as to create a normal situation, that is, a stable and enduring legal order for society, is fooling itself. If the law is not grounded on anything other than its own reason or in the debate process, it ends up being little better than saying that the law “should be above all what I and my friends like.” This, he argues, creates an inherently unstable legal order, constantly shifting at the whims of which group of friends is writing the legislation.

Customary law, where it is in operation, always acts as a restriction on legislative law. Custom acts as force that limits what the legislator can do. The legislature, then, will generally try to undermine the acceptability of customary law as a force which limits the freedom of the legislature to act and to write the legislation that is so central to the intended aims of the legislative state. In a sense, the very existence of a legislature will undermine custom and tradition. A legislature finds its purpose in writing laws, not in refraining from writing laws.

In the interplay between the competing powers of the legislature and the judiciary, customary law benefits the judiciary at the expense of the legislature. This seems an obvious point, one lost in an era of activist judges who legislate from the bench. The judiciary, as the interpreters of custom, tradition and precedent tend to be guardians of the way things have always been done.

The role of the legislature, he argues, is to act as the final guardian of law and the guarantor of the existing order. It is important for the legislature to be seen as a stabilizing force for society. They are meant to be the visible form of the idea of law, order, security and a protection against injustice. The idea is that the legislature is, in theory, supposed to be the visible representation of the metaphysical order. The legislature is supposed to ground society. A properly grounded legislature will overcome one’s “right to resistance.” We are meant to look to the legislative body and see in them a ruling authority that is so representative of the essence of the legal order that it we are willing to subordinate ourselves to it, giving up our freedom to act in our own interests.

A Unified Source of Law

This is where this book begins to get really interesting and very applicable for the current context. Schmitt next argues that you cannot have two sources of law within a closed parliamentary system. Having different ideas about the nature of law, its purpose, what grounds it, and who writes it all working at the same time essentially destroys the legislative state itself. This is the situation in which the United States has found itself since at least since the beginning of the civil rights era, if not earlier. He argues that without a unified understanding of the law a legislature cannot effectively do its job.

Schmitt has no use for a fiction like the “marketplace of ideas.” Either a state is unified, or it is in civil war, or one faction will be oppressing other factions. If the state does not have a unified culture, a unified religious, philosophical and metaphysical understanding of the world out of which it generates laws, then it will default into one party imposing its will upon the other group or groups. If a state is not unified, it will be inherently oppressive to any groups who are not in power. Either that or civil war will break out. There cannot be numerous sources of the law.

This is why the culture war in the United States and elsewhere is the only meaningful political battle. It is the battle for determining which religious, philosophical and/or moral system will be the source of law in the state. There can be only one.

There is a proviso to this. Differences can be tolerated as long as the interplay of institutions of power are stable, clear and free from arbitrariness. As long as the people in the minority believe that the system is stable, they will be able to navigate the system of law with confidence. This confidence is the key. The minorities have to believe in the system, even if it is not the system they would have chosen for themselves. Without this confidence, the legislative state will need to act with increasing degrees of coercive dominance to keep the system stable.

If this is the situation, renouncing the right to resistance would be irresponsible, Schmitt argues. It is conclusions like this, that lead some to say that his writings were instrumental in the collapse of Weimar Germany and the rise of Adolf Hitler. What Schmitt does, though, is say out loud what a lot of people are thinking and feeling, but may be reluctant to say.

Continuing, he picks up the counter argument, that the liberal state was never meant to provide the content of law, it was merely meant to provide a value-free structure in which and through which differing ideas could be brought up and hashed out in the public sphere. Within this idea of a legal system without content—constitutionalism—the law become a kind of theoretical game without boundaries. The law is not grounded on anything but the interplay of competing interests. This is fine during peaceful times, but becomes untenable and unworkable when confronted with real crisis or conflict. As long as everyone accepts the notion of a value-free superstructure, as long as there is a unified state, then it works. As soon as a different concept of law arises, the system begins to break down due to internal contradictions.

Schmitt takes it a step farther and argues that the very idea of a value-free legal system is itself a fiction. There can never be a value-neutral legal system, because such a system is itself based on its own value presuppositions. A value-neutral system is itself a value system. It is self-referentially incoherent. It is this system and not another one. The system cannot be neutral towards itself. This makes any system of law based on competition in the marketplace of ideas inherently unstable as a system of governance.

Majority Rule & Gaming the System

So what determines if an idea has won the competition of ideas in value-neutral arena and will now form the law of the land? Does it need 100% percent agreement? If the system designates that you need 50% plus one for a majority to write law, this only works, argues Schmitt, if all 100% of the people share the same basic underlying philosophy. It only works if it is a disagreement over minor things that do not touch the fundamental unity in society. As long as there is single unifying culture, disagreements can be tolerated and don’t become oppressive.

If there is a permanent minority, it is hard to claim that you have the “will of the people.” Again, you need a commonality. There must be something that binds people beyond their vote. If not, argues Schmitt, there is a forced subordination of the minority. Without this, the state is inherently oppressive, whether overtly or covertly.

The myth of the value-neutral system is that all ideas have a fair chance to be heard, and thus a fair chance at winning the majority. In practice, though, once there is no longer a unified society, the group that wins the majority will begin to game the system to ensure that its majority is made permanent. Once a party wins 50% plus one, it will begin to do all it can to ensure that it becomes the permanent majority, the permanent legal power.

At the same time, the minority will resist being ruled. It will not give up its “right to resistance.” In a sense, every parliamentary and constitutional system has a tyrant in power and a minority in rebellion. We don’t call it this. We use all manners of linguistic slight of hand to avoid stating things the way they are. But unless there is a unified state, there is a constant battle between tyrant majority and oppressed minority.

Schmitt states out loud what many will not say. There is nothing in a value neutral-system of law that prevents the 50% plus one majority from rendering the minority illegal. They would just re-write the law. Because the system is not grounded in any metaphysical order other that human rationality, that is, “what me and few friends think is good,” there is nothing preventing the majority from rendering the minority illegal. The minority has no protection. It would be irresponsible in this situation to give up one’s “right to resistance.”

Democracy or Plebiscite?

But you might argue, this is a democracy and that is how it works. Schmitt begs to differ. He argues that the people’s participation is limited to a simple “yes” or “no” referendum on candidates. What is put before them is a slate of candidates and a set of policies, an agenda cooked up in the smoke filled back rooms. They are then simply asked to give a yes or no, this or that. This, he argues, is not a democratic election, it is a plebiscite.

For a parliamentary democracy to be legitimate, Schmitt argues, the public must be able to shape the questions themselves. In a democracy the people bring forward the questions they wish the government to deal with. In contrast to this, Schmitt argues, the only form of legitimacy permitted in our parliamentary systems is that of the plebiscite. In a plebiscite, authority comes from above, confidence comes from below. In essence, the vote of the people is whether they have confidence in the governing class to rule or not. Authority does not come from the people. All the people are allowed to do is offer a simple yes or no to the legitimacy of the authority of the legislator.

Because of this constant need to secure the legitimizing plebiscite vote of the general population, government has a totalizing impulse. It must fulfill all the claims of every interested party, especially in the economy. The government, rather that acting with restraint, becomes involved in more and more areas of people’s lives because it is felt that they must be seen as “doing something” about every problem that surfaces among every interest group. Combined with the natural impulses of the administrative state to put into place new processes and new policies staffed by experts from the meritocratic “elite,” you end up with a mix whereby the reach of the state becomes increasingly total. What Schmitt is arguing is that regardless of party platform or policy, the very nature of a constitutional parliamentary system of government based on the legitimacy of a popular vote will eventually become totalitarian by virtue of its own internal logic.

Finally, Schmitt notes that every elected power will use that power to get a head start on its opponents. It will exploit its position to write legislation to game the system in their favor in order to get a head start on their opponents in the next election. The gaining of legitimacy through the vote becomes a political tactic that is itself gamed and manipulated. All of it is designed to ensure that once in power, you become a permanent ruling party. The idea of a regular switching from one party to the other actually runs contrary to the logic of the system as designed.

Schmitt concludes with the enigmatic phrase: “Truth will have its revenge.” If I had to pin down the meaning of this, it would be that in the end, the truth of the enlightenment system of law and popular vote will eventually be exposed for what it is. A system of law and government that does not have its grounding in a larger metaphysical or traditional structure within which the legal framework and power are legitimated will be inherently unstable and unsustainable. In a sense Schmitt did not have to prove he was right. He just had to wait and circumstances would do that for him. The reason people have been reading Schmitt again is that truth has had it’s revenge, more than once, and will again.