1. “If one reads the work phenomenologically-analytically and not as normative theory, it is simply persuasive.” – Ernst-Wolfgang Böckenförde says this about Carl Schmitts “The Concept of the Political” (Der Begriff des Politischen) in a biographical Interview with Dietrich Gosewinkel. “How do you want to understand the political world today without the insight that the political can lead to enmity time and again? It doesn’t have to, but it can, and often does.” (p. 372; in English here; Kindle version here; original version here).
told Schmitt that he considered Schmitt’s “most important work” not to be his
“Constitutional Theory” (Verfassungslehre) but “The Concept of the Political”.
As Böckenförde saw it, the work “has often been misunderstood,” but “essentially […] contains, which is clear
if one reads it closely, a criteriological-phenomenological analysis and not a
normative theory. And as such it is correct.” (p. 372): “It is astonishing
how Carl Schmitt was able to describe this so grippingly in about seventy,
eighty pages. Of course, in some places there are polemical accents, but that
does not change the fact that I consider [the main insight] as simply
fundamental.” (p. 379; cf. also here, pp. 598, 600, 605, but also p. 606).
The central thesis
of Schmitt’s book is that the political is characterized by the friend-enemy-distinction,
that strongest degree of intensity of association or dissociation that can lead
to the willingness to kill the enemy.
It convinced Böckenförde
as an analysis of a social phenomenon, a description of a fundamental fact of
social reality, which had to be taken into account by the legal system: The
democratic constitutional order, the freedom and equality of all – those ideas
of Enlightenment of (1776 and) 1789, which Böckenförde, unlike Schmitt, unconditionally supported –
could only be effectively secured and protected if the possibility of life-or-death
enmity was factored in.
For Böckenförde, Schmitt’s
analysis contained crucial insights, that unfortunately still hold true from a
sociological point of view, and that a liberal democracy must not turn a blind
eye to, if it is not to be swept away in the state of emergency by the dynamics
of the friend-enemy opposition. Democracy has to prepare for this dynamic (realized
time and again in history, in wars and civil wars as well as in the fight of
terrorist “partisans”), adapt to it and ensure that there is the ability to act
in the event of such conflicts – without giving up its commitment to liberty.
2. Such lessons can be drawn from the book –
“if” one reads it “phenomenologically-analytically
and not as normative theory”,
as Böckenförde emphasized.
Carl Schmitt’s “The
Concept of the Political” certainly allows for the other, the normative reading
as well, although Böckenförde considered it a misunderstanding. According to a
normative reading, the existential fight of the community against the enemy takes
precedence over all human rights.
The turn from the
normative to the “existential”, after all, does
not change the fact that Schmitt assigns the stronger force of guiding action
to the existential self-assertion, when stating,
for example, that “[t]he war, the willingness to die […], the physical
killing […], all that” does have “no normative, but only an existential meaning”;
that the physical annihilation of the enemy cannot be justified by norms, but
is done “out of the existential assertion [seinsmäßige Behauptung] of one’s own
form of being”, that it is “meaningful, but only politically meaningful” (here, p. 49 f.).
It does not
matter whether one characterizes one’s self-assertion against the enemy as the
highest normative command or as an existential necessity which cannot be
captured in norms: one way or the other one privileges fighting over passivity,
attributes a higher existential significance to militant action than to respect
for the enemy’s humanity.
Schmitt uses normative terms as well, for example, when he speaks of a state’s
„immense authority [Befugnis]” to “openly dispose of the lives of people
during the war” (p. 36), or of the “elementary rightness” of the “axiom of
protection and obedience” according to which the patron determines the enemy
It also fits a
normative interpretation that Schmitt glorifies the state murderings after the
so-called “Roehm Putsch” as the leader’s deed, in 1934, in his “The Fuehrer
protects the law”, and says that they were “not the action of a republican
dictator” who “creates facts in a law-free zone”, but a “genuine exercise of
judicial power” (“echte Gerichtsbarkeit”) springing from “the same source of
law,” from which all rights of every nation arise: “In the highest emergency the
highest law proves itself […]. All law comes from the right of the people to
live.” (here, pp. 200-201).
In the 19th
century, Schmitt explaines, Dufour “defined the act of government, eluding any judicial
review”, as aiming at defending society against its enemies; but in a “leader
state” (Fuehrerstaat) that which is otherwise lawful as an ‘act of government’
has to be so “to an incomparably greater extent” as a deed “by which the leader
has proven his supreme leadership and jurisdiction” (pp. 201-202).
3. Regardless of
whether or not a normative understanding does justice to Schmitt exegetically –
it definitely helped boost Schmitt’s international reception after the
terrorist attacks of September 11, 2001.
doctrine that qualifies the fight of a polity against its enemies as an existential
necessity trumping any legal objections was right on cue to serve as a
justification for declaring a “war on terror”, discarding all legal constraints
and arresting and torturing terrorism suspects in Guantanamo and other prisons without
judicial review or interference.
As Quinta Jurecic pointed out, “[f]ew of the many unexpected intellectual twists and turns of the early
post-9/11 years […] were quite so unexpected – or quite so twisty and turny –
as the sudden return to prominence of […] Carl Schmitt”.
4. At Harvard Law
School, Adrian Vermeule has been reviving Schmitt for quite some time now, prominently
including his teachings on the state of emergency.
In „Our Schmittian Administrative Law“ (Harv. L. Rev. 122 , 1096]), Vermeule explaines that the administrative
law of the United States necessarily contains legal “black holes” and “gray
holes”, because – according to Vermeule – Schmitt’s empirical and institutional
insight is correct that, because of their unpredictable circumstances, “[e]mergencies
cannot realistically be governed by ex ante, highly specified rules” (pp.
1099-1106, see also pp. 1136, on other countries). One example for this is supposed
to be the judicial review of detentions in Guantanamo and other anti-terrorist
prisons (pp. 1133-1134).
Like Schmitt (and
unlike Böckenförde), Vermeule artfully combines neutral analysis with
ultimately normative conclusions that lead to a supremacy of national security over
individuals and their rights – acting as an explosive device for the liberal
constitutional order – which is at least carried along by ambivalent formulations.
Fundamental rights, after all, cannot create any barriers to something which is
empirically or institutionally unavoidable: impossibilium nulla est obligatio.
To wit, Vermeule has
recently identified Alexander Hamilton (and James Madison) as forerunners of
such Schmittian insights (perhaps responding to advice “to toss out Schmitt” from his theory). According to Vermeule, Hamilton and
Madison have (as Publius) identified “a dynamic or mechanism, the ‘Publius
Paradox’, that warrants great attention”: “If the bonds of constitutionalism
are drawn too tightly, they will be thrown off altogether when circumstances
warrant.” (The Publius Paradox, Modern L. Rev. 82 (2019), 1 ). “A
polity”, Vermeule points out, “will defend itself according to the pragmatic
imperatives of natural circumstances, whatever law might say” (p. 4). Although Vermeule is consulting the Founding Fathers
now, homage is paid to Schmitt as well – by quoting Donoso Cortes instead (who
was so important to Schmitt) (p. 11 n. 34).
As in Schmitt’s
case, one has to (partly) agree with Vermeule’s astute observations – and
disagree with their normative suggestions and undercurrents. It can hardly be denied
that in a state of emergency legal scruples can (and often do) disappear all to
easily. However, a democracy can fight against terrorist enemies while still adhering
to legal rules like the right to habeas corpus review or the prohibition of
torture. Neither the character of such rules as “ex ante” and “highly specified”
nor the “Publius paradox”, according to which legal shackles drawn “too tightly”
will be thrown off, rule this out.
Böckenförde’s concern with Schmitt’s insights was always to salvage them for
liberal democracy, to shift them towards the rule of law and to put that in
them which is worth preserving to good use for a constitutional order of
liberty and equality. He considered it one of his main successes as a scholar “to
have given Carl Schmitt’s concepts a liberal reception” (“Carl Schmittsche
Begriffe liberal rezipiert zu haben”); see here, p. 486.
This holds true, for example, for the distribution principle of the rule of
law (rechtsstaatliches Verteilungsprinzip) according to which a citizen does
not have to justify exercising her liberty, but government has to justify
restricting it. It holds true, as well, for Schmitt’s idea that “the power to
amend and supplement the Constitution can not be limitless and has not been
conferred in order to eliminate the Constitution itself” (Verfassungslehre,
1928, p. 106). Böckenförde rightly considered this idea to be as “in substance […] incorporated” into the
German Constitution through Article 79 (3)” (see here, p. 378); an
idea for which Schmitt himself referred to William L. Marbury (The Limitations upon the Amending
Power, in: Harvard L. Rev. 33 [1919/1920], pp. 223 et seq.; see p. 225: “It may be safely premised that the
power to ‘amend’ the Constitution was not intended to include the power to
6. And it also holds
true for Böckenfördes reception of Schmitt’s insights about the possibility of
a confrontation with an enemy and a resulting state of emergency.
To be better
prepared for this possibility, Böckenförde suggested amending the Constutition
to include stronger and more effective emergency regulations. However,
according to his proposal for a general emergency power (de constitutione
ferenda), the principles of human dignity, the acknowledgement of unalienable
human rights as the basis of every polity in Article 1(2) of the Constitution as well as other fundamental
rights should “under no circumstances be derogated” (cf. Ausnahmerecht und demokratischer
Rechtsstaat, in: Vogel/Simon/Podlech [ed.], Die Freiheit des Anderen –
Festschrift für Martin Hirsch, 1981, S. 259 [268-270], Art. Y Abs. 3).
In a state of
emergency, according to Böckenförde, an exception-proof minimum of fundamental rights
should still be in force, “outermost limits, comparable to the principles of Articles 1 and 20” of the German Constitution, should remain
verdrängte Ausnahmezustand, in: NJW 1978, S. 1881 ; for the doctrine of a
balancing-proof “essence of dignity” [or “core of dignity”, Menschenwürdekern]
of fundamental rights, following from Article 1 of the Constition according
to the German Constitutional Court’s longstanding case law cf. Hong, EuConst 12 , p. 549 [pp. 558-560], and here).
The state of
emergency, for Böckenförde, was “not a blank cheque for arbitrary actions not
bound by any legal limit”, but was supposed to be “a clear-cut and contained
legal institution” (Die
Krise der Rechtsordnung: der Ausnahmezustand, in: Michalski (ed.), Über die
Krise, 1986, p. 183 ).
Böckenförde was accordingly
convinced as well that provisions of criminal law or the concept of a “supra-legal
emergency” (übergesetzlicher Notstand) could not grant any powers that the special
provisions of public law, especially constitutional law, precluded (NJW 1978, p
1881 [1882-1884]) – a question, which later writings by Gertrude Lübbe Wolff (Rechtsstaat
und Ausnahmerecht – Zur Diskussion über die Reichweite des § 34 StGB und
über die Notwendigkeit einer verfassungsrechtlichen Regelung des
Ausnahmezustandes, in: Zeitschrift für Parlamentsfragen 11 , p. 110
[111-117]) “answered once and for all”, in Böckenförde’s opinion: “Whoever
wants to refute her will break their doctrinal teeth trying [wird sich daran
die juristisch-dogmatischen Zähne ausbeißen]” (Rechtsstaat und Ausnahmerecht –
Eine Erwiderung, in: Zeitschrift für Parlamentsfragen 11 , p. 591 ).
should learn from Böckenförde, therefore, that Schmitt’s writings do not
support the claim that in a state of emergency any specific legal limits will necessarily
Schmitt is discussed, Böckenförde’s reading of him should be taken into account.
Although Böckenförde resisted being labelled (by Mehring) Schmitt’s “star
student” (“Meisterschüler”) for good reasons (see again here, p. 391: If this would have “the connotation that” one “has fully embraced”
Schmitt, “then I would say no, I was not a star student.”) – he was probably more intimately acquainted
with Schmitt’s views than any other German scholar of constitutional law, due
to his intensive personal exchanges with Schmitt (which makes it a quite irritating
experience to see, for example, Vermeule’s reaction to Ralf Michaels’ recommendation to take Böckenförde’s writings into
account when drawing on Schmitt’s critique of liberalism).
saw no obstacles to upholding a minimum of fundamental rights in a state of
emergency in Schmitt’s analysis, this should give pause to anyone who reads
At the memorial service for Ernst-Wolfgang Böckenförde on March 9, 2019,
Johannes Masing remarked that in his third semester, in 1980, attending Böckenförde’s
seminar made him feel sure for the first time that his choice to study law had
been the right one. Bernhard Schlink said that as a listless student he was captivated
by Böckenförde’s teaching in a course in 1966/1967, and that Böckenförde went
on to become a “teacher of the Federal Republic” of Germany. Schlink pointed
out that he did not know anybody as successful, who had stayed that modest. He
recounted that when Böckenförde was awarded the Sigmund Freud Prize for scholarly
prose, he announced in his speech that, before the award, he had not read anything by
No one who, like
Böckenförde, puts the strength of the arguments front and center, should ignore
his contributions to constitutional doctrine. Fortunately, a first volume of his writings has been published in
English at Oxford University Press (a second one is announced, see also the Special Issue of the German Law
Journal of 2018 here), which has been rightly praised by Bruce Ackerman, Kim Lane Scheppele and J.H.H.
Weiler (here, under “Reviews”): “It is past time for the English-speaking world to fully confront his remarkable
contributions to modern constitutionalism.” His writings “should be read by everyone
with interests at the intersection of constitutional and political theory”,
because: “Böckenförde falls into the rare category of indispensable