Framing Schmitt’s Institutional Turn, Mont Pèlerin, and Ordoglobalism

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Acknowledgments

This work was partly inspired by the dynamism of the seminars and webinars of the Minda de Gunzburg Center for European Studies at Harvard University. Further, my interest in these Schmittian issues of complementary institutions, connecting institutions and institutional guarantees was stimulated by Tory James Leigland, “Marxism, Law and Social Change: The Political Education of Franz Neumann,” Ph.D. dissertation, Columbia University, 1980.

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No potential conflict of interest was reported by the author.

Notes

¹ See Hall and Soskice, Varieties of Capitalism.

² See Thornhill, “Carl Schmitt: After the Deluge.”

³ See Deeg,” Institutional Complementarity and Institutional Change”; Höpner, “What Connects Industrial Relations with Corporate Governance.”

⁴ Neumann, “Die Entwurf eines Kartell und Monopolgesetze”; Koalitionsfreiheit und Rechtssverfassung; and The Rule of Law; Heller “Frieheit und Form in der Reichsverfassung”; Rechtsstaat oder Diktatur; and the special issue on “Hermann Heller’s Authoritarian Liberalism.”

⁵ See, for example, McCormick, Carl Schmitt’s Critique of Liberalism, 7: “Using Schmitt in trajectories he did not envisage or did not pursue.”

⁶ See Sitze, “Introduction” in Galli, Janus’s Gaze.

⁷ Cf. Kjaer, “Transnational Normative Orders,” and Constitutionalism in the Global Realm.

⁸ See Lindahl, “Law as Concrete Code”; and more specifically, Lindahl, “Breaking Promises and Boundaries,” 8.

⁹ Cf. Kjaer, Constitutionalism in the Global Realm.

¹⁰ See Slobodian, “Ordoglobalism”; and “The Invention of Economic Law.”

¹¹ In Nomos of the Earth (1950) Schmitt repeatedly uses the metaphor of the medieval estate and guild theory of the Katechon, the Restrainer. The Restrainer is what James Buchanan of the Virginia School of Neoliberalism would by the 1970s come to call “constitutional economics.”

Nomos is understood as a universal form of life, an inherently lived-in substance of institutionalizing practical reasoning. This substance is a constellation of dispositions and performative acts that we participate in—patterned instances of problem-solving and mutual learning experiences. There is an unremitting emphasis on competitiveness. Nomos is the ordering of freedom in conformity to the Order of Competition within a concrete framework founded on private property. Ordungspolitik is understood as both institutional facticity and institutional design—the protecting of a rule-based economic ordering of a global market society as an ensemble of legal institutional frameworks. This is not understood through a Hans Kelsen-like foundational normativism (the Grundnorm), but in terms of that which practices make possible. Society provides the law as normal practices embodied in institutions. The norm never triggers social change, but only follows it. The rules and regulations themselves follow the changing conjunctions of concrete ordering.

¹² Cristi, Carl Schmitt and Authoritarian Liberalism, 194, 218–19.

¹³ Cf. Neil MacCormick, The Institutions of Law.

¹⁴ Cristi, Carl Schmitt and Authoritarian Liberalism, 205.

¹⁵ Schmitt, “Grundrechte und Grundpflichen”; and Freiheitsrechte und Institutionelle Garantien der Reichsverfassung.

¹⁶ Lindahl, “Law as Concrete Code”; Fault Lines of Globalization; and Authority and the Globalization of Inclusion and Exclusion.

¹⁷ Mestmäcker, “Power, Law and Economic Constitution”; Legal Theory Without Law; and “Wettbeweerbsfreiheit und Wohlfahrt” [Freedom of competition and welfare].

¹⁸ Slobodian, “Ordoglobalism”; and “The Invention of Economic Law.”

¹⁹ See Teubner, “De Collisione Discursuum”; and “Transnational Economic Constitutionalism.”

²⁰ See Kjaer, “From the Crisis of Corporatism to the Crisis of Governance.”

²¹ See Veldman, “Self-Regulation in International Corporate Codes”’ Zumbansen and Callinocos, Rough Consensus and Running Code.

²² See Schmidt, Regulatory Integration Across Borders; Zumbansen, “The Conundrum of Corporate Social Responsibility”; and The Many Lives of Transnational Law.

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Funding

This work was supported by an award from the Rhode Island College Foundation and the Rhode Island College Alumni Affairs Office of Rhode Island College.