Democracy: constrained or militant? Carl Schmitt and Karl Loewenstein on what it means to defend the constitution

ABSTRACT

In the recent literature on militant democracy, two claims are made on the relation between its most famous advocate, Karl Loewenstein, and German jurist Carl Schmitt. The first claim is that, although the latter came to support the Nazi regime, in the late 1920s he provided an early model of militant democracy that looks more robust and elaborated than Loewenstein’s. Schmitt’s constrained democracy is believed to cut deeper into that which militancy is supposed to safeguard. The second claim is that this latter model underlies other versions of militant democracy, including Loewenstein’s. This article argues that the first claim is largely correct while the second is to be rejected. In doing so, it delves deep into Schmitt’s understanding of the materiality of law, that is, the social normativity that he believed the constitution was designed to protect, and casts light on the procedural orientation of Loewenstein’s militant democracy. The conclusion is that both these theories espouse a form of conservatism, though different from one another, and that in different ways both can be detrimental to democracy.

KEYWORDS:

• Conservatism; democracy; institutionalism; militant democracy; pluralism

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 On the impact of militant democracy on both political thought and concrete policies, see e.g. Müller, “The Triumph of what (if Anything)?”, 211–26; Capoccia, Defending Democracy (particularly, 47–67).

2 See Loewenstein, “Militant Democracy and Fundamental Rights, I”; Loewenstein, “Militant Democracy and Fundamental Rights, II”. It is worth noting that, while Loewenstein is generally considered to be the founder of the theory, in his investigation into the origin of the topic, Bastiaan Rijpkema shows that, in those same years, the term was first launched by Dutch jurist George van den Bergh, precisely on 28 September 1936, in a lecture entitled “The Democratic State and Non-Democratic Parties” (see Rijpkema, “Militant Democracy beyond Loewenstein”). Apart from the co-ownership of the label, which, according to Rijpkema, still is to be fully recognized in the copious literature on militant democracy, Rijpkema thinks van den Bergh’s model is free of the theoretical weaknesses that are generally attributed to Loewenstein’s (see Rijpkema, Militant Democracy, 22–68).

3 Loewenstein, “Militant Democracy and Fundamental Rights, II”, 658.

4 Loewenstein, “Militant Democracy and Fundamental Rights, I”, 432.

5 See e.g. Invernizzi Accetti and Zuckerman, “What’s Wrong with Militant Democracy?”; Müller, “Militant Democracy”, 1257; Górnisiewicz, “Personal Enemies, Conceptual Friends”; Nitzschner, “On Militant Democracy’s Institutional Conservatism”; Schupmann, Carl Schmitt’s Constitutional and State Theory, 201–20; Schupmann, “Liberalism, Legal Revolution and Carl Schmitt”.

6 In truth, before the Nazis’ rise to power, there was mutual respect. In particular, Loewenstein regarded Schmitt as one of the most prominent jurists in the German tradition. Nevertheless, Loewenstein thought that Schmitt’s conception of democracy was misguided and dangerous because it advocated a strong executive branch with the approval of the people through the plebiscite. Schmitt resented this reading of his own theory. On 30 May 1931, in a letter to Ludwig Feuchtwanger, an editor at the Duncker & Humblot publishing house, he wrote that “Loewenstein’s book  …  could put to shame most of the full professors I’ve worked with”, “despite silly remarks about my ‘romantic’ preference for acclamation and the like – remarks that parrott Richard Thoma and prove that Loewenstein doesn’t know what romanticism is or what an acclamation is, but you can’t ask him to” (Schmitt, “Carl Schmitt an Ludwig Feuchtwanger”, 338). Loewenstein maintained his high opinion of Schmitt even after the latter joined the Nazis, but this continued respect made his assessment of Schmitt’s political decisions harsher, if possible. Famously, in 1945, Loewenstein, who in 1933 had to flee from Munich because of his Jewish origins, was hired by the Director of the Legal Division in Berlin to supervise the implementation of the legal provisions of the Potsdam Protocol. In that circumstance, in November of the same year, he produced a report titled Observations on the Personality and the Work of Professor Carl Schmitt. Here he sketched a short biography of Schmitt and argued that he should be treated with the utmost severity. Loewenstein’s admiration for his colleague went hand-in-hand with his resolution that brilliant minds who supported the Nazi regime deserved no mercy. On Loewenstein’s contribution to the process of denazification, see Kostal, “The Alchemy of Occupation”. On the relationship between Loewenstein and Schmitt on that occasion, see Bendersky, “Carl Schmitt’s Path to Nuremberg”.

7 It is worth noting that Loewenstein did not really foresee the imminent end of the Republic. However, given his penchant for British liberal constitutionalism, he never really regarded German democracy as a mature democracy. It was contaminated by the germ of radical democracy and the associated ideology of popular sovereignty as the source of all power and legitimacy. In contrast to the influential jurists Anschütz and, above all, Richard Thoma, in the late 1920s and early 1930s Loewenstein considered the degeneration of the Weimar Constitution more than possible.

8 The jury is still out on whether Schmitt was concerned about the imminent break of the constitutional order. Scholars such as David Dyzenhaus (Legality and Legitimacy, 70–85), John McCormick (“Identifying or Exploiting the Paradoxes of Constitutional Democracy”), and William Scheuerman (The End of Law, 111–16) doubt his genuine intent to preserve the Republic in the early 1930s. His theorizing, they submit, favoured a plebiscitarian regime that would open the way to a totalitarian leadership. I rather concur with Joseph Bendersky that “the restoration of stability through a strong existing constitution, based upon the existing constitution, was obviously Schmitt’s first priority” (Bendersky, “Carl Schmitt in the Summer of 1932, 51).

9 Schupmann, Carl Schmitt’s Constitutional and State Theory.

10 See Loewenstein, “Autocracy Versus Democracy in Contemporary Europe II”; Loewenstein, “Militant Democracy and Fundamental Rights, I”; Loewenstein, “Militant Democracy and Fundamental Rights, II”; Loewenstein, “Dictatorship and the German Constitution: 1933–1937”; Loewenstein. “Legislative Control of Political Extremism in European Democracies I”; Loewenstein, “Legislative Control of Political Extremism in European Democracies II”.

11 See e.g. Invernizzi Accetti and Zuckerman, “What’s Wrong with Militant Democracy?”; Rijpkema, Militant Democracy; Maddox, “Karl Loewenstein, Max Lerner, and Militant Democracy”; Malkopoulou and Kirshner, Militant Democracy and its Critics; Malkopoulou and Norman, “Three Models of Democratic Self-Defence”; Nitzschner, “On Militant Democracy’s Institutional Conservatism”.

12 See Loewenstein, “Dictatorship and the German Constitution: 1933–1937”.

13 Over time, Loewenstein remained faithful to this understanding of the constitution. For example, later in his scholarly career, he wrote: “By no means does a written constitution contain all rules that essential for the conduct of the political process, let alone all constitutional law. As a matter of fact, even in those states that possess a written constitution, unwritten rules or constitutional conventions implement the written norms proper or, as the case may be, they even supersede them” (Loewenstein, “Constitutions and Constitutional Law in the West and in the East”, 208).

14 As I will clarify, by materiality I mean, in the most abstract sense, a set of purposes or goals pursued by political subjects and institutions (see Goldoni, “The Material Constitution”).

15 On the relation between these two models, see Maddox, “Karl Loewenstein, Max Lerner, and Militant Democracy”.

16 Loewenstein, “Review of It Is Later Than You Think”, 521.

17 Nitzschner, “On Militant Democracy’s Institutional Conservatism”, 7.

18 See e.g. Schupmann, Carl Schmitt’s Constitutional and State Theory; Invernizzi Accetti and Zuckerman, “What’s Wrong with Militant Democracy?”; Malkopoulou and Norman, “Three Models of Democratic Self-Defence”, 447; Górnisiewicz, “Personal Enemies, Conceptual Friends”.

19 See e.g. Meierhenrich, “The Soul of the State”; Vinx, “The Material Constitution of the Dual State”; Goldoni, “The Material Constitution”. More generally, on Schmitt’s material approach to law, see e.g. Croce, “The Enemy as the Unthinkable”; Croce and Salvatore, “Beyond Emergency Politics”; Lindahl, Fault Lines of Globalization; Loughlin, Political Jurisprudence. It is worth noting that although Schmitt was not among those who advocated a theory of the constitution in the material sense, fully developed by the Italian jurist Costantino Mortati (see Rubinelli, “Costantino Mortati and the Idea of Material Constitution”), he adopted a materialist lexicon in the early 1930s, when the debate over the materiality of the constitution was on the rise. For example, he spoke of “Gesetz im materiellen Sinne” to qualify the difference between the first, procedural part of the Weimar Constitution and the second, substantive part. Loewenstein, too, endorsed the “the useful distinction” between “formal constitutional law, incorporated in a single document called the ‘constitution’, and material or substantive constitutional law, consisting of statutes and constitutional conventions” (Loewenstein, Political Power and the Governmental Process, 138). Needless to say, Schmitt and Loewenstein had different ideas about what this materiality was. But this disagreement illustrates that before Mortati clarified and elaborated the notion of materiality in his influential way, there was a semantic struggle over this notion and what it implied.

20 Goldoni puts it as follows: “The material constitution is one term (the explanans) of an explanatory relation. The other pole (the explanandum) is the constitutional order. The analytical function of the material constitution is to grasp the relation between the organisation of the social order and the form of the constitution” (Goldoni, “The Material Constitution”, 537).

21 Nitzschner, “On Militant Democracy’s Institutional Conservatism”.

22 Invernizzi Accetti and Zuckerman, “What’s Wrong with Militant Democracy?”, 186.

23 Invernizzi Accetti and Zuckerman, “What’s Wrong with Militant Democracy?”, 186.

24 It should be noted that Schupmann’s analysis in Carl Schmitt’s Constitutional and State Theory is one of the few that cannot be charged with overlooking the Schmittian texts and themes which I will refer to in what follows. However, I think it is important to supplement Schupmann’s largely accurate analysis with an inquiry into the relation between the materiality of law and democratic militancy.

25 For a more detailed analysis of this theoretical change, see Croce and Salvatore, “Little Room for Exceptions”; Croce and Salvatore, “Beyond Emergency Politics”.

26 For a comprehensive account of Schmitt’s thinking in these years, see Croce and Salvatore, Carl Schmitt’s Institutional Theory.

27 Schupmann, “Constraining Political Extremism and Legal Revolution”, 252.

28 Schmitt defined the constitutional document as “a hodgepodge of programs and positive provisions, which provides the foundation for the most diverse political, social, and religious matters and convictions” (Schmitt, Constitutional Theory, 83).

29 As I will show in the subsequent section, such an amending power was regulated by Art. 76 of the Weimar constitution.

30 He made this clear, for example, when, in the Preface to the second edition of Political Theology (dated November 1933), he stated that his comprehensive revision of decisionism, conducted in the late 1920s, also came “as a result of discussions of my notion of ‘institutional guarantees’ in German jurisprudence” (Schmitt, Political Theology, 2).

31 See Stolleis, A History of Public Law in Germany 1914–1945, 87–93.

32 See Stolleis, A History of Public Law in Germany 1914–1945; Paulson, “Review of The Theory of Public Law in Germany 1914–1945”; Paulson, “Some Issues in the Exchange between Hans Kelsen and Erich Kaufmann”.

33 On the relevance of this Hauriouvian topic to Schmitt’s overall reflection from that period, it is worth noting that, again in the Preface to the second edition of Political Theology, along with his new conception of institutional guarantees, he mentioned his “own studies of the profound and meaningful theory of institutions formulated by Maurice Hauriou” (Schmitt, Political Theology, 2–3) as a factor that effected a major shift.

34 For example, he maintained: “The family as such can have no basic right in the genuine sense, no more so than can one of its members. The family can only be protected constitutionally as an institution. The same is true of localities or associations of localities” (Schmitt, Constitutional Theory, 211).

35 Schmitt, “Freiheitsrechte und institutionelle Garantien der Reichsverfassung (1931)”; Schmitt, “Grundrechte und Grundpflichten (1932)”.

36 On the problem this very term created after his adhesion to Nazism, see Croce and Salvatore, The Legal Theory of Carl Schmitt, 56–7.

37 Anschütz, Die Verfassung des Deutschen Reichs vom 11. August 1919, 401–2, Art. 76.

38 Loewenstein, Erscheinungsformen der Verfassungsänderung.

39 For a careful analysis of the various aspects of this work, as well as its potential contradictions, see Lang, Karl Loewenstein, 99–113.

40 Loewenstein, Political Power and the Governmental Process, 125–33.

41 Loewenstein, Erscheinungsformen der Verfassungsänderung.

42 See Colón-Ríos, Constituent Power and the Law, 203–25.

43 Schmitt, Constitutional Theory, 80.

44 Loewenstein, “Dictatorship and the German Constitution: 1933–1937”, 542.

45 Loewenstein, “Dictatorship and the German Constitution: 1933–1937”, 542, fn. 13.

46 Nitzschner, “On Militant Democracy’s Institutional Conservatism”, 2.

47 Nitzschner, “On Militant Democracy’s Institutional Conservatism”, 7.

48 On French and Italian legal institutionalism as well as Schmitt’s relation to this influential scholarly tradition, see Croce and Salvatore, The Legal Theory of Carl Schmitt, 94–139.

49 As one of the reviewers notes, while Schmitt would eventually appropriate from his own constitutional theory to pursue these goals, his theory of constrained democracy also helped lay the normative foundation for the Basic Law of the Federal Republic of Germany. And this is certainly true. But I am not arguing that any ex-ante commitment to fundamental values is tantamount to an extreme, far-right kind of conservative thinking. Schmitt’s materialist constitutionalism can be translated into very different institutional forms. Distinguishing between these forms depends on what the core values are, how much pluralism they allow, and what forms of containment are used. In general, a commitment to substantive constitutionalism implies that the constitution is based on material contents that are used as normative standards to determine who can participate in the political game and who should be excluded because they do not subscribe to those material contents. Schmitt’s own translation of his materialist constitutionalism was right-wing because of the institutionalist values he considered fundamental and his conviction that pluralism should be kept to a minimum.

50 Invernizzi Accetti and Zuckerman, “Militant Democracy as Decisionist Liberalism”, 66.

51 Loewenstein, Political Power and the Governmental Process, 123.

52 See Capoccia, “Militant Democracy”, 219.

53 See Malkopoulou and Norman, “Three Models of Democratic Self-Defence”, 455.

54 On the relation between the principle of equal chance and Schmitt’s interpretation of defending democracy, see Vinx, “Democratic Equality and Militant Democracy”.

55 Müller, “Militant Democracy”, 1262.

Additional information

Funding

This work was supported by the Italian Ministry of University within the scope of the project “Science in times of emergency: the role of scientific knowledge in policy-making during crises” (CUP Master: B53D23032600001; CUP: B53D23032600001; Codice Progetto: P2022ACHYA) – Piano Nazionale di Ripresa e Resilienza Missione 4 Componente 2 Investimento 1.1 – Fondo per il Programma Nazionale Ricerca (PNR) e Progetti di Ricerca di Significativo Interesse Nazionale (PRIN).

Notes on contributors

Mariano Croce

Mariano Croce is Associate Professor of Political Philosophy at Sapienza University of Rome. He held the post of Marie Curie Fellow at the Faculty of Law of the University of Antwerp, where he is co-leader of the research line in kinship studies. His books include Carl Schmitt’s Institutional Theory. The Political Power of Normality (Cambridge University Press, 2022, with Andrea Salvatore), The Legacy of Pluralism: The Continental Jurisprudence of Santi Romano, Carl Schmitt, and Costantino Mortati (Stanford University Press, 2020, with Marco Goldoni), and The Politics of Juridification (Routledge, 2018).