Critical Legal Theory's Turn to Schmitt, Not Waving but Drowning_Amanda Loumansky

Critical Legal Theorys Turn to Schmitt: Not Wavingbut Drowning?

Amanda Loumansky

Published online: 17 March 2013

Springer Science+Business Media Dordrecht 2013

Abstract I examine the current enthusiasm among some academics, whom I shallbroadly refer to as critical legal theorists (CLT), for the work of Carl Schmitt which

has at times been accompanied by disenchantment with Emmanuel Levinass ethical

insights. I examine the reasons for this turn to Schmitt which I attribute to the

sensitivity of CL theorists to the complaint that an over-reliance on Levinas leads to

a disengaged and irrelevant discourse. I contrast their antithetical approaches

through their conceptions of the Other (which in Schmitts case is developed

through his friend and enemy distinction) and explain how, together with state of

exception theory; it has appeared to some CL theorists to offer a platform for

exposing the liberal democratic attempt to export human rights as a violent impe-

rialising mission. I argue that Schmitts thinking represents an intellectual cul-de-

sac and that Levinas continues to offer a more rewarding model of critique.

Keywords Levinas Schmitt Human rights National socialism

Nobody heard him,the dead man,But still he lay moaning:I was much further out than you thoughtAnd not waving but drowning.

The title is drawn from Stevie Smiths poem Not Waving but Drowning (1957) Deutsch.

I use the term CLT loosely here to include academics who might reject its application to themselves.

For the purpose of this article I am applying it to academics who go beyond the black letter of law or

traditional texts relating to their discipline to locate narratives that offer challenging perspectives to

traditional discourses.

A. Loumansky (&)The Law School, University of Middlesex, The Burroughs, London NW4 4BT, UK

e-mail: [email protected]

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Liverpool Law Rev (2013) 34:116

DOI 10.1007/s10991-013-9126-z

Poor chap, he always loved larkingand now hes deadIt must have been too cold for him his heart gave way,They said.Oh, no no no, it was too cold always(Still the dead one lay moaning)I was much too far out all my lifeAnd not waving but drowning.

I use the poems subject, the drowning man, as a metaphor for Critical Legal

Theorys turn to the work of Carl Schmitt. I argue that it is now out of its depth

and floundering in a sea of uncertainty. Dead perhaps because of the tendency

for deconstructive play which meant that no-one could take it seriously when

it ran into trouble and was drowned by its irreconcilable contradictions. Poor

chap, he always loved larking/And now hes dead.

Introduction

This article addresses concerns I have about CLTs turn to the political thinking of

Schmitt, particularly in the studies of international relations. Such a move places it

in danger of becoming incoherent in its attempt to critique intellectual liberal

orthodoxy. At first this may appear a paradoxical statement to make as there is a

view, long maintained that incoherence is CLTs stock in trade and that the

discourse is one that is essentially negative and disruptive. This is exemplified by

the theory and practice of deconstruction, acknowledged by Derrida, to be an

inherently parasitical undertaking. Indeed, Chandler has gone so far as to suggest

that the resort of CLT to Schmitt may be their last refuge as there is nowhere to turn

to after this. For Chandler this can be attributed to the weakness and defensiveness

of critical theoretical positions themselves.1

This argument has some force given the tendency of some to fall under the

influence of Schmitt. The apparent decline of interest in Levinas, accompanied by

gravitation towards Schmitt, appears to be a reflection of a crisis of confidence.

Indeed the progress of Douzinas, who has been hugely influential in introducing and

developing postmodern jurisprudence, a genre that includes CLT, has been charted

by Bowring who notes that Douzinas moves from an enthusiastic reception of

postmodernism expressed in earlier writings in which he has applied the ideas of

Derrida and Levinas to his later works where Levinas has almost vanished (and)

(t)his time the focus is Carl Schmitt.2

In this article I explain why the current vogue for Schmitt is a false trail for CLT

which is always at its best as an interloping outsider; better at the task of asking

questions and getting under the skin of the prevailing narratives and their confident

assertions rather than supplying the answers. My focus will be on the urgency of

1 Chandler (2008, p. 30).2 Bowring (2008, p. 132).

2 A. Loumansky

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formulating a response to the push by the West to export liberal democratic values

by insisting that they have universal application. These are not values that command

uncritical allegiance but the deprecation that emanates from a sympathetic and

idealistic reading of Schmitt is a liaison dangereuse brought about by the urgentdesire to expose an impetus within liberal democracies towards conflict. Schmitts

views invite disenchantment with human rights and are used to bolster the complaint

that rights are little more than a mask to conceal the cause of neo-imperialism and to

assert global dominance and the control of strategic resources. To this end they are

held to be a cruel deception and in the view of Douzinas, quoting Wendy Brown,

(with evident approval), may well be one of the cruellest social objects of desire

dangled above those who lack them.3

The implication appears to be that the bliss of ignorance should not be disturbed.

Castellino takes Douzinas to task for his assertion that legal attempts to codify and

implement human rights, such as the Human Rights Act (1998) have generated a set of

rules with no soul. As he declares, to view all human rights globally through this lens

is simply unfair. Rights he insists have been delivered under the auspices of liberal

democracy and they mean something: The sheer number of new constitutions that havecome into existence over the two previous decades all giving prominence to ideas related

to human rights, suggest that values are likely to endure into the future.4

The traducing of human rights runs the very real risk of losing the message so

that the impression is created that rights do more harm than good; a conclusion that

merely opens the door to tyranny. For example Aradau and Munster assert that

There is value in engaging with Schmitts theory of the exception which has been

revived and hotly debated in IR, particularly in the context of Giorgiou Agambens

reformulations of the political implications of exceptionalism.5

This path fails to expose liberal democracys betrayal of human rights but instead

calls into question the value and appropriateness of human rights themselves. The

adoption of Schmitt as a tool of critique offers little fresh insight on this issue but which,

despite Agambens best endeavours, invariably leads its advocates into downplaying the

value of rights. This contrasts with the traditional Marxist position that views the Wests

advocacy of rights as a cynical means of subjugating the developing world through

subterfuge to serve the interests of the neo-imperialist enterprise that seeks to plunder its

resources. To this aporia, Levinass ethical thinking can offer little by way of a solution

as it lacks any grounded analysis of the political world. Nevertheless, I believe that while

attempts to reconcile Levinass ethics to the world of the political, his interventions,

while lacking the framework of a disciplined school of thought accompanied by the

attendant rigour that one looks for in such debates, provide, nevertheless, a moral anchor

by which the conduct of the West can be called to conscience. As Castellino reminds us

it has famously been said that democracy can be imported, never exported.6 A

reflection on the thinking of Levinas bears this out.

3 Douzinas (2002, p. 371).4 Castellino (2009, p. 94).5 Aradau and Munster (2009, p. 686).6 One explanation for the failure of democracy to take root in certain regions is provided by Humphrey

Hawskley: poverty, ethnic and religious differences, corruption, land disputes and venal leaders make

Critical Legal Theorys Turn to Schmitt 3

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Schmitt and Levinas: The Separation of the Political and the Ethical

As Derrida observes Carl Schmitt is, in terms of his thinking, almost the complete

antithesis of Levinas as

Schmitt is not only a thinker of hostility (and not of hospitality); he not only

situates the enemy at the centre of a politics that is irreducible to the ethical, if

not the juridical. He is also by his own admission, a sort of Catholic neo-

Hegelian who has an essential need to adhere to a thought of totality. This

discourse of the enemy as the discourse of totality, so to speak, would thus

embody for Levinas the absolute adversary.7

To understand this degree of polar separation it is necessary to appreciate

precisely what lies at its heart. Schmitt, as was Machiavelli, is concerned first and

foremost with the art of governance and the need to assert political authority

virtually to the exclusion of any other consideration. This is precisely what leant his

thinking to that of the Nazi regime for whom power was everything. To this end it is

clear that Schmitt is not in the least concerned with causes and the degree to which

they can be asserted to be moral. All is relegated to the political dynamic; the duty

of the sovereign to ensure the survival of the political entity. The grouping with

which Schmitt is concerned is a specific entity, the state which

according to modern linguistic usageis the political status of an organisedpeople into an enclosed territorial unit.8

Schmitt formulated this Hobbesian perspective in response to Germanys defeat

in WW1. Thus, the formation of groups, more specifically entities such as nation

states, is the natural and inevitable culmination of a process which is

a definition of the political (that) can be obtained only by discovering and

defining the specific political categories.9

The key to unlocking German weakness following WW1 was to understand and

acknowledge the reality of power and how it was constituted. For Schmitt the

fundamental question is how does a state, as the decisive political entity, acquire

the strength that it will need to cope with external threats? To the state belongs

the possibility of waging war and thereby publicly disposing of the lives of

men.10

Footnote 6 continued

full electoral democracy a very risky system for some societies. (2009:379). If that is the case the

objection to exporting Democracy would be on account of its destabilising effect which opens up the

prospect of more, rather than less, conflict.7 Derrida (1999, p. 147).8 Schmitt (2007, p. 19).9 Supra. n.10 at 25.10 Supra n.10 at 46.

4 A. Loumansky

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In so far as there are any ethical considerations these are to be based on the needs,

lives and livelihood of the people to be protected and for there to be order and social

cohesion of which the state is the sole guarantor. To secure peace at its borders the

state must ensure harmony within; for as long as the state is a political entity the

requirement for internal peace compels it in critical situations to decide also upon

the domestic enemy; an enemy over which the state will exercise the power of life

and death. It is the urgency of the authentic, existential threat, the possibility of an

enemy at the gates, that gives rise to the political; a phenomenon that cannot be

wished away or subdued by universalism. The threat calls for a response, as the

moment of decision, which ushers in Schmitts theory of sovereignty:

Sovereign is he who decides the exception.11

Schmitt reveals in Political Theology that the norm is cradled within theexception because only it can give rise to the conditions that set the boundaries of

what may or not be permitted by the state.12 The justification for the usurpation of

power is simply that without it a people are defenceless before the enemy Other.

Levinas also developed his ethical thinking in the shadow of a catastrophe but for

him it was WW2 and the Shoah that was the decisive influence. It would not be

difficult, under these circumstances to imagine Levinas succumbing to despair at the

human condition. Instead what he offers is an inversion of philosophical orthodoxy

that cuts against the grain of intellectual thought; to begin with a quest for the Good

rather than the True. For an uncompromising critic of Levinas this is a betrayal of

Western intellectual thought, a pseudo-religion masquerading as philosophy, which

must be resisted for the very honour of philosophy itself.13 However, whereas the

cataclysm of WW2 would stimulate an endless discourse on the nature of Evil and

its prevalence among humanity, Levinas found it remarkable that despite the weight

of ontological considerations there was nevertheless the manifest presence of Good.

But how could the Good be recognised and how was it possible to distil its

characteristics? The answer for Levinas was to isolate the attempt to understand

Goodness from the search for meaning to discover it in its pure, undiluted form as a

solitary, unproblematised and precognitive encounter between the Self and the

Other detached from all consideration. The Self-absorption of philosophy is

replaced by Other-absorption; the Other is everything and I am nothing. Through

her face the Self is called to conscience by an unequivocal and non-reciprocal

demand. The Self owes everything to the Other and the Other owes nothing in

return. Or as Levinas declares

to say here I am (me voici). To do something for the Other. To give. To be

human, thats it.14

11 Schmitt (2005, p. 5).12 From an altogether different perspective Walter Benjamin declared that if violence, crowned by fate,

is the origin of the law, then it may be readily supposed that where the highest violence, that over life and

death, occurs in the legal system, the origins of the law jut manifestly and fearsomely into existence.

(1999:286).13 Badiou (2002, p. 20).14 Levinas (1995, p. 97).


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The task is not to strive for enlightenment to establish a purpose. It is not a

question of establishing how to be righteous but rather is it righteous to be? A life

devoid of ethics is a purposeless existence and empty of meaning.

Constructions of the Other

Central to the distinction between Levinas and Schmitt are their accounts of the

Other as the entity that has the critical impact on their antithetical viewpoints. For

Levinas, the Other is an overwhelming presence that provides the Self with the

possibility of being more than oneself by being for the Other in a forgetting, or

subordination of the Self, as an ethical being reflected in its manifestation of total,

unconditional and personal responsibility so that, to follow Dostoyevsky in the

Brothers Karamazov

each of us is guilty before everyone for everyone, and I more than the others.15

The Other is not necessarily a benign presence but rather one that, through her

face, haunts the Self and puts the Self to shame.

The face is fundamental. It does not have any systematic character. It is a

notion through which man comes to me via a human act different from

knowing.16

Nevertheless, it is compelling for the face is

a request and it is authority. You have a questionhow could it be that if thereis a commandment in the face, one can do the opposite of what the face

demands. The face is not a force. It is an authority. Authority is often without

force.17

Every qualified step towards the Other and mitigation of the Selfs Other is

unethical and puts the Self in bad faith. It is an intolerable imposition on the Self but

anything less than total responsibility is, in ethical terms, a betrayal of the Other. By

contrast the Other that obsesses Schmitt is the political enemy. The stark reality of

the human condition is one of conflict, or the threat of conflict. That people form

themselves into groupings is a matter of necessity and contingency. The political

entity, the nation state, must fend off external challenges that may pose a threat to its

interests and its very existence. All political actions can be reduced to one specific

political distinction which is that between friend and enemy. This distinction is

essential to the fundamental pre-requisite of survival. It requires that the group

identifies the nature and form of the threat and from whom it emanates, before

developing a stratagem of contingency; because the degree of the threat will justify

the counter-measures that must be taken to contain it. The identification of the

enemy, conceptually, is remarkably fluid and even nebulous given its significance

15 Levinas (2006, p. 146).16 Wright et al. (1988, p. 168).17 Supra n.18 at 169.

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and centrality to Schmitts thought. The nature of the enemy is political, rather than

personal as there may be nothing morally distinguishable about the adversary who

will be faced with similar, albeit opposing, political considerations. What matters is

that

he is, nevertheless, the other, the stranger; and it is sufficient that for his nature

that he is, in a especially intense way something different and alien, so that

extreme conflicts with him are possible.18

Schmitts Other possesses none of the traits that Levinas bestows upon his. Nor is

he in the least interested in examining the Others effect upon the Self and therefore

it would not be strictly accurate to suggest a Sartrean shame-inducing alternative;

one that is not too distant from Schmitt in holding that the Other is a product of

ontology and that conflict is the pre-condition of existence.

What really count are conflict, willpower and particularity, not consensus

reason and universalism. Schmitts purpose of stating this is to hammer out

that no rationalistic or moral scheme is able to control life.19

Schmitts Other is politically conceived and it is enough that she possesses

interests that are oppositional to the Selfs and therefore constitute an immediate,

concrete threat. Indeed

The criterion of the friend-and-enemy distinction in no way implies that one

particular nation must be the friend or enemy of another specific nation; what

matters above all else is that the enemy is at hand and that war (which) is

neither the aim nor the purpose nor even the very content of politics is

understood to be an ever present possibility.20

The question arises, who is the enemy? How is the enemy to be determined and

by whom? According to Schmitt that right (jus belli) belongs to the state as an

essentially political entity and allows for the real possibility of deciding in a

concrete situation upon the enemy and the real possibility of fighting him with

the power emanating from the entity.21

As Dyrberg observes, the constitutive role assigned to the enemy is to enable

those who hold the reins of power, who are imbued with sovereign authority to

politicise external borders and to depoliticise internally. Thus, the enemy-friend

distinction, when applied de facto to international relations, asserts that politics is

for the powerful elites of the state. For this clientele the enemy is just thatan

enemy (a matter of business in other words). Yet for the others, the persuadable,

the enemy is the very symbol of negativity. The purpose is to place a distance

between us and them that will make the task of motivating soldiers to kill the

external foe in war so much easier to accomplish. The internal foe must be

18 Schmitt (2007, p. 27).19 Dryberg (2009, p. 653).20 Supra n.10 at 34.21 Supra n.10 at 45.


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neutralised for the sake of internal harmony as part of the process of the

consolidation of the Sovereigns power base. In response to the observation that this

is a key characteristic of dictatorship, Schmitts view is that it clearly applies to anynation state and merely serves to explain how power is consolidated by the

Sovereign. Yet, as Dyrberg reminds, us this is

the same logic that is at stake when people turn their neighbour over to the

secret police well knowing that he or she will be tortured, be raped, disappear

and/or be killed.22

Schmitts suggestion that the war in a just cause waged on behalf of liberal

democracies in the name of humanity serves to dehumanise the enemy (by placing

the enemy on the outside of humanity) is offset by this impersonal and abstracted

account of the Other that robs her of any identity or role other than that of a political

enemy.

The Turn from Levinas: The Problem with an Unproblematised Ethics

Rose considered that postmodernism was disqualified from any meaningful

participation in philosophical discourse by its own inherent and insoluble

contradictions as well as its intellectual incoherence. According to her Levinass

attempt to segregate ethics is a futile enterprise to preserve a holy middle that is

broken from the outset by the inrush of politics and ethics.23

Postmodernism, despite its initial allure, had nothing to offer. All that remains is

for philosophy to apply a new coat of paint, grey on grey through revisitation and

restatement. In response Bauman has suggested that Roses

serene, dignified philosophy that shuns illusionsdespite the authors ownprotestations, is postmodern through and through. In a fashion so typical of the

postmodern mind, it still thinks it would be nice if the hopes of modernity

came true but it no more believes they ever will.24

Rose had been particularly affronted by the stance that Levinas adopted in his

interview with Shlomo Malka following the massacres in the Palestinian refugee

camps at Sabra and Chatilla in which he evaded the suggestion that the Palestinian

was the Israelis Other and instead turned the discussion into one concerning the

relationship of the Jew in the Diaspora to the Jew in Israel (as the relationship of

neighbours). According to Rose

Levinas exonerates not only Israel but also the whole historical structure of

repetition backwards which he evasively identifies.25

22 Supra n.21 at 660.23 Rose (1992, p. 248).24 Bauman (1995, p. 75).25 Supra n.25 at 75.

8 A. Loumansky

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My own view26 that this interview was not at all a catastrophic betrayal of

everything that Levinas stands for finds little favour within the broad consensus of

academics although it is shared to some extent by Howard Caygill who remarks that

Levinass last words are a warning that the State of Israel is only justified if it

obeys the prophetic call for justice if it ceases to do so, then its inhabitants

will be expelled.27 (Caygill 2002:194).

The inference is clear; if the Israelis act unjustly to the Palestinians then any

rights to the land will be forfeit. Indeed

the link between political judgement and ethical reflection evident as in the

case of the Chatilla and Sabra murders is not a lapse in the consistency of

Levinass thought, but is fully characteristic, and perhaps uncomfortably,

comprises one of its unacknowledged strengths because the link which is

reflective rather than formulaic allows it to yield far richer results

thanabstract considerations. (Caygill 2000:6)

It is clear that reflections of this nature were potentially embarrassing to some CL

theorists; for if there was no discernible systemic or methodological movement from

his thinking on the ethical to his view it would appear to be inadequate to the task in

hand. Whatever the subtleties of Levinasian thought it was felt that events, such as

massacres in the Palestinian refugee camps, demanded a forthright response and

anything less than that could only be seen as highly inappropriate and utterly at odds

with everything for which his ethics was claimed to stand. The message from the

interview that Israel had a moral responsibility that exceeded mere culpability

despite the lack of guilt here and probably there was buried by the horror at the

supposed exoneration. If ever a situation demanded an unequivocal condemnation

of Israel this would appear to be it. Attempts to reconcile Levinas s ethics to

politics, such as Fagans (2009) recent attempt to insinuate the Third into the Selfs

ethical encounter with the Others,28 by seeking to rescue Levinas from himself by

grounding his ethics, appeared contradictory in negating the central defining

characteristic of his thinking.

As early as 1994 Douzinas and Warrington asserted that the very existence and

uniqueness of nations is owed to narratives emblems and symbols and that

there never has been a nationalism that has successfully based its claim to

nationhood and independent state existence on abstract claims of right and

universality.29

According to Douzinas the human rights discourse has been hijacked by

standard liberal theories which exclude the possibility of rights existing

26 For a more in-depth analysis of Levinass interview with Shlomo Malka see Loumansky (2005)

Levinas, Israel and the call to conscience, Law and Critique.27 Caygill (2002, p. 194).28 Fagans interesting thesis is discussed further in an article, Hanging God at Auschwitz by this authorof which full details are provided in the bibliography.29 Douzinas and Warrington (1994, p. 148).


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independently of them. He argues that this amounts to an equalisation of rights

which we should endeavour to resist in view of its moral poverty and its co-option

of human rights into an aggressive legitimisation of state power. Douzinas paints a

bleak picture of the future in which human rights fail to assert affection over fear

of the Other and a final outcome in which there will be a

fracturing of community and the social bond into a monadology, in which

some people will be able to assert their final and absolute sovereignty while

others will be reduced to the status of the perpetually oppressed underclass.30

He is alluding here to the concept of Sovereign rights waiting in the wings to oust

the universalism of human rights. Legalised desire in the form of absolute and

unrestricted rights will be acquired by an empowered group and asserted over the

heads of others. Instead natural rights, for example, influenced by a mythical state of

freedom and opposing the present in the name of the future would resist the claim

that utopian visions had been expelled from the all serious intellectual thought and

that any objection to the contrary has been rendered redundant by the final triumph

of the Hegelian maxim that the the rational is real; the real is rational. Yet, it is

clear that the Hegelian real does not merely encapsulate the present but can only be

realised as historical becoming, of history that judges the sedimentation of

reason31

For Douzinas natural rights represented the possibility of fulfilling Derridas

disturbance of the future as the interruption of the here-now by leaning towards thefuture through the agency of a messianism without a messiah. In this analysis of

human rights Douzinas has highlighted an antagonism to minority groups that are

indicative of fear and mistrust and a yearning for

a new Single genetically modified Power which will mobilise and unite the

fragments again under a new immanent reason, deep structure or metaphysical

principle.32

This theme is further developed in Human Rights and Empire where Douzinasreveals the clear influence of Carl Schmitts dark ruminations.33 Now the

legitimation of Sovereign rights is consolidated by being turned not inwards against

useful minorities but outwards towards an external enemy. Douzinas speaks

admiringly of Schmitts prescience in predicting the shape of recent human

events34 He utilises it to formulate a critique of the attempts of the West, under the

hegemony of the United States, to assert its sovereignty nominally in the interests of

human rights. The agenda is not so very different from the Christian ecumenical

mission of salvation through proselytisation or extermination. Human rights

presuppose that their advancement is in the cause of all humanity and thus, bydeduction, there can be no human enemy (as their interests cannot be separable from

30 Supra n.5 at 376.31 Supra n.31 at 378.32 Supra n.5 at 375.33 Douzinas (2007, p. 6).34 Supra n.35 at 172.

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that of humanity as a whole). The co-option of human rights is the states attempt to

validate its actions by way of dehumanising those who resist. Humanity itself is a

groundless value and unless human rights reject their appropriation by cosmopolitan

sovereignty they will only lend themselves to a withering away of humanity and

the principle of just war will have finally won, in the proclamation of a

perpetual peace drowned in endless violence.35

Critiques of CLTs Appropriation of Schmitt

Chandler has suggested that the lure of Schmitt for CLT is not based on an

accurate appreciation of his critique of universalism and, in particular, the Just

War doctrine and this betrays their own analytical weaknesses.36 For example,

Nomos of the Earth, originally published in 1950, is an elegy for the era ofempire, the old world order, which had been replaced by that of the new world.

He was concerned with the breakdown of the geopolitical arrangement, the JusPublicum Europaeum, that had served Europe tolerably well until that firstmodern cataclysm, WW1, destroyed its great achievement; an international order

based on sovereign states. When Schmitt was writing Nomos, at the height of theCold War, he was urging, in the words of Chandler a restoration of the moral

authority of imperialism which the spread of universal values would not be able

to achieve.37 As Chandler explains

Schmitts ontological focus does not lead to a critique of US ethical and legal

claims on the basis that they do not constitute a new global order, but precisely

because they do not create a new global order or nomos.38

Essentially CLT admirers of Schmitt often do not appreciate that his criticism of

the West did not stem from an attempt to establish a global order under Western

hegemony but rather because espousing the cause of universalism would fail to

achieve that end.

Chandler, divides CLT into two camps: the critical post-structuralists (essentially

critics of a formerly pro-Marxist orientation) and critical cosmopolitans (supporters

of the spread of human rightsby intervention where necessary). The former have

discovered in Schmitt a post-Marxist narrative of resistance and that he can help

them to oppose liberal democratic views on sovereign power, This results in a

conundrum for in attempting a

blanket critique of the liberal frameworks of international and domestic law,

critical post-structuralists use Schmitt to argue that the undermining of these

frameworks, is in fact, an example of the dangers of liberal universalism.39

35 Supra n.35 at 290.36 Supra n.3 at 47.37 Supra n.3 at 38.38 Supra n.3 at 40.39 Supra n.3 at 30.


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Critical cosmopolitans, on the other hand, are sensitive to the charge that

their support for human rights claims and humanitarian intervention has lent

legitimacy to American military adventurism, particularly the war in Iraq.40

Their critiques cannot be sustained as they are forced to empty Schmitts work of

its analytical content so that by a twist of irony

a political and legal theorist explicitly hostile to an emancipatory perspective

has more to offer than they do themselves.41

Reaching a fairly similar conclusion, Dyrberg excoriates both camps by claiming

that the problem facing leftists in their use of Schmitt is that his thinking does not

lend itself either to an attack on, or a defence, of liberal democracy because in the

case of post-structuralists his work cannot be insulated from his political conviction

and his distinction between liberalism and democracy merely leads the left into

reactionary identity politics while to use Schmitt (against himself)

for the purpose of strengthening liberal democracy runs into serious

difficulties, because the whole set up is geared combat this regime form.42

Dyrberg argues that Schmitts view of the political, which through the exception

to the norm amounts to a vitalism that is anti-pluralist, collectivist, elitist and

statist and it

looks self-defeating to use Schmitt to advance what he resented most of all:

modern democracy underpinned by right/left orientation. Although leftists

enjoy portraying Schmitt as a fierce critic of liberalism, I find it more obvious

to approach him as an enemy of modern democracy.43

Dyrberg points out that there is a tendency among left-wing admirers of Schmitt

to downplay his links to fascism either by seeking to find excuses for him or by

dismissing such objections as futile moralising. The point is that that Schmitts

thinking cannot be cherry-picked to isolate his critique of democracy from the

methodology and analysis that he utilised to support it. The process is intrinsic to the

ends it served and thus, using Schmitt for this purpose does not redeem democracy

by rescuing it from its universalising (imperialising) impulse but merely serves to

subvert it. A process criticised for its in-built drive towards tyranny is replaced by

one that has already arrived.

Two examples of the privileging of Schmitts thinking will be mentioned briefly

at this point. I do not agree with Bowring that Giorgio Agamben can be labelled a

contemporary disciple of Schmitt as it appears that his reading can be taken to be

oppositional although there is a case for accepting that he belongs to the body of

Catholic scholarship that has fallen under the spell of his malign influence.44

40 Supra n.3 at 30.41 Supra n.3 at 48.42 Supra n.21 at 649.43 Supra n.21 at 650.44 Supra n.4 at 13.

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Agamben presents himself as a defender against the theft of civil liberties by

democracies which inevitably drift into a totalitarianism that is not recognised by

their citizens because it is concealed within a mask of benevolence. For Agamben, a

permanent state of exception develops and grows from the very conditions that arise

within a liberal democracy. For Agamben, a state of exception exists at the centre of

the arcanum imperii (secret of power) as

an empty space in which a human action with no relation to law stands before

a norm with no relation to life.

As a machine with its empty centre

the state of exception has today reached its maximum worldwide deployment.

The normative aspect of law can thus be obliterated and contradicted with

impunity by a governmental violence that while ignoring international law

externally and producing a permanent state of exception internally

nevertheless still claims to be applying the law.45

The laws established by the norms, so despised by Schmitt, are subverted by the

very institutions that should be upholding them by the introduction of states of

exception that allow ever more power to accrue to them. This insight is of limited

value and gives insufficient weight to the increasing means to challenge the

arcanum imperii (the secret power) that lies at the heart of government as evidencedby the amount of information that evades the attempts to draw a mantle of secrecy

around its decision-making processes through the activities of whistleblowers and

bodies such as Wiki leaks.

In the case of Salter we do have an example of an academic who has embraced

Schmitt in his recently published work, Carl Schmitt: Law as Politics, Ideology andStrategic Myth. Salter adopts just the sort of approach referred to earlier i.e. one thatseeks to separate Schmitts ideas from the political context in which they were

formed. It is only in the conclusion of his book that he acknowledges his

sympathetic interpretation of a Schmittean approach to modern law and that it

would have been equally possible to have developed hostile and destructive

interpretations more in keeping with the literature that dominated the

discussions until the mid-1990s at least.46

However, the methodology employed by Salter of only reserving an obligatory

nod towards criticisms of Schmitt in the form of a postscript produces a distorted

and stilted discourse that fails to explore the issues in the sort of depth that they

require. An example of the obfuscation in thinking that a turn to Schmitt induces is

discernible from Salters consideration of the invocation of the just cause that

dehumanises the enemy.

To confiscate the word humanity, to invoke and monopolize such a term

(denies) the enemy the quality of being human and declaring him to be an

45 Agamben (2005, p. 86/87).46 Salter and Schmitt (2012, p. 264).


123

outlaw of humanity, and a war can thereby be driven to the most extreme

inhumanity.47

At this point Salter, had he chosen to adopt a more critical approach, could well

have interjected by making the point that to act in the name of humanity provides

the very moral reference point by which the actions of its proponents can be called

into question. This reference point was not adopted by the Nazis who claimed to be

fighting solely for the German people and in seeing war as a brutal (albeit

legitimate) exercise in advancing their interests expunged all notions of humanity

from its prosecution unless, of course, they considered themselves to be the victims.

In short, Schmitt did not denounce the dehumanising tendencies of liberal

democracies for the sake of humanity but to serve the purpose German national

interests. Nor is it unreasonable to make reference to his possibly most notorious

work, the Grossraum Order48 which sought to advance the argument for Germanyto wage its catastrophic war of aggression to achieve an authentic and contiguous

land-based empire as opposed to the British Empire that lacked spatial authenticity

but existed primarily to defend its trading routes. This was the logical outcome of

Schmitts thinking that sought to give Germany free reign from humanitys

constraints.

One would have expected Salter to have explored in more detail the very relevant

issue of the inhumanity of the Nazis treatment of the Jews which is barely alluded

to in this work despite citing in the bibliography Raphael Grosss work, CarlSchmitt and the Jews. The Jewish Question, the Holocaust and German LegalTheory. Salter would claim that this is the sort of straw-man argument thatimpedes serious consideration of Schmitts thinking but I would insist that it is

absolutely fundamental to his work which on the pretext of the abuse of humanity

paints humanity out of the picture altogether. It does not matter that Schmitts

antisemitism was not as extreme as those of many of his contemporaries; it is simply

the case that his indifference to the plight of the Jews is perfectly consistent with his

thinking.

Conclusion

With the turn to Schmitt, CLT has not so much reached the end of the road; rather

than turned temporarily into a cul-de-sac. Much of the criticism is merited because,

on occasions CLT do not appear to have thought through the consequences of their

provocations as and when Schmitts theories are embraced to deconstruct liberal

democracy. As we have seen the attempt to present the Wests promotion as nothing

more than a cynical charade to disguise a grab of resources leads into human rights

denial territory. That is morally indefensible, as how can we insist upon rights for

47 Supra n.48 at 82.48 The full title of this work is The Grossraum Order of International Law with a Ban on Intervention for

Spatially Foreign Powers: A Contribution to the Concept of Reich in International Law (19391941).

Published in Writings on War (2011).

14 A. Loumansky

123

ourselves while writing them off for others and blithely requiring that they should

tolerate what we would find intolerable?

The idea that the overriding imperative is to block the advancement of human

rights at all costs by exposing it as an insidious attempt to subordinate and control

supposedly authentic struggles against oppression is itself pernicious. There are

genuine grounds to be concerned that the triumphalism of liberal democracy should

be accompanied by an attempt to impose its values universally and it is must be

asked whether it is it all possible to force people to be free and, if so, at what cost?

In 1953 at an address to the American Society of newspaper editors Eisenhower

declared that: this world in arms is not spending money alone. It is spending the

sweat of its laborers, the genius of its scientists, the hopes of its children. This is not

a way of life at all in any true sense. Under the clouds of war, it is humanity hanging

on a cross of iron.49

How ironic it would be if a Republican president was able to highlight the futility

of the pursuit of power (dressed, naturally, in the trappings of the Just War) with a

lucidity, poignancy and eloquence unmatched by any of liberal democracys most

trenchant critics. If the highest echelons of the Wests political establishment are

capable of publicly acknowledging the dangers posed by the industrial military

complex with an agenda of its own that it imposes on the nation state and driven to

war to justify its existence one might be inclined to conclude that CL theory has

precious little extra to add. It certainly would not be able to replace Marxism as the

dominant expose of liberal democracys failings.

Critical legal theorists (CLT) is at risk of running around in ever decreasing

circles but then this is a problem that confronts philosophy in general. Perhaps its

greatest enemy is its own need for constant reinvention and the search for the new

idea. However, it seems that CLT is in danger of picking the wrong fight with liberal

democracya mistake that Levinas avoided. Castellino reminds us, and Levinas

would surely have concurred, that

recent history does suggest that the liberal state may well be the ideal vehicle

for the furtherance of human rights values

and while they can never be a panacea they do serve to

articulate the basic minimal positions from which there ought to be no

backtracking.50

Levinas never sets out to repudiate human rights but rather affirms them as the

reminder that there is no justice yet. His work may be dismissed in some quarters as

moralising casuistry, or in Badious words a pious discourse without piety51 but it

remains my view that with its reminder of how the most vaunting claims, in respect

of rights and the delivery of justice, fall short of the unremitting obligation that is

owed to the Other, the singular Other, we realise and benefit from an understanding

of just how short justice falls from ethics. This seems a sounder platform to

49 From a speech before the American Society of Newspaper Editors, April 16, 1953.50 Supra n.6 at 94.51 Supra n.15 at 22.


123

challenge the claims of universalism than the ontological scepticism that Schmitt

advocates.

According to Levinas

Human rights are the reminder that there is no justice yet. And consequently I

believe that it is absolutely obvious that the liberal state is more moral than the

fascist state, and closer to the morally ideal state.52

To that end, Levinas offers a way of thinking that should haunt liberal democracy

without repudiating it.

References

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international relations. British Journal of Criminology 49(5): 686701.Badiou A. 2002. Ethics, an essay on the understanding of evil. London & New York.Bauman, Z. 1995. Life in fragments: Essays in postmodernity. Oxford: Blackwell Publishers.Bowring, B. 2008. The degradation of the international legal order: The rehabilitation and the possibility

of politics. Abingdon: Routledge-Cavendish.Caygill, H. 2000. Levinass political judgement, the Esprit Articles 19341983 Radical Philosophy, 104

Nov/Dec.

Caygill, H. 2002. Levinas and the political. New York: Routledge.Castellino, J. 2009. The end of the liberal state and the first terrorist. London: Middlesex University

Press.

Chandler, D. 2008. The revival of carl schmitt in international relations: The last refuge of critical

theorists? Millennium Journal of International Studies 37(1): 2748.Derrida, J. 1999. Adieu to Emmanuel Levinas. Stanford: Stanford University Press.Douzinas, C., and R. Warrington. 1994. Justice miscarried, ethics, aesthetics and the law. New York:

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Hawksley, H. 2009. Democracy kills, whats so good about the vote? London: Macmillan.Levinas E. (first published 1982). 1995. Ethics and Infinity (trans: Cohen, R.). Pittsburgh: Duquesne

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Loumansky A. 2005. Levinas, Israel and the call to conscience. Law and Critique.Rose, G. 1992. The broken middle: Out of our ancient society. Oxford: Blackwell Publishers.Salter, M.G., and Carl Schmitt. 2012. Law as politics, ideology and strategic myth. London: Routledge.Schmitt C. (first published 1922). 2005. Political theology, four chapters on the concept of sovereignty

(trans: Schwab, G.). Chicago: University of Chicago Press.

Schmitt C. (first published 1932). 2007. The concept of the political (trans: Schwab, G.). Chicago: TheUniversity of Chicago Press.

Wright, T., P., Hughes, and A., Ainley. 1988. The paradox of morality: An interview with Emmanuel

Levinas. In Contribution to the provocation of Levinas: rethinking the other, ed. R. Bernasconi, D.

Wood. Routledge: London/New York: Kegan Paul.

52 Supra n.18 at 178.

16 A. Loumansky

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Critical Legal Theory's Turn to Schmitt, Not Waving but Drowning_Amanda Loumansky