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From Legitimacy to Dictatorship—and Back Again: Leo Strauss's Critique of the Anti-Liberalism of Carl Schmitt

Published online by Cambridge University Press:  09 June 2015

Robert Howse
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Extract

The encounter between Carl Schmitt and Leo Strauss remains a source of fascination and polemics for the friends and enemies of both thinkers. According to Stephen Holmes, both Schmitt and Strauss belong to a single tradition of anti-liberalism, whose ultimate practical implication is suggested by Schmitt's fate as a Nazi apologist. Indeed, Holmes places much emphasis on Strauss's criticism of Schmitt for failing to develop a critique of liberalism that goes beyond the horizon of liberalism itself, and interprets this criticism of Schmitt as a call for a form of anti-liberalism more extreme and virulent than that propounded by Schmitt on the very eve of his membership in the Nazi party.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 10 , Issue 1: CARL SCHMITT , January 1997 , pp. 77 - 103
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Copyright © Canadian Journal of Law and Jurisprudence 1997

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References

My main debt is to David Dyzenhaus, with whom I have carried on for several years a discussion about the relationship of Strauss to Schmitt's anti-liberalism, and to the students in our seminar “Liberalism and its Enemies” for their many insightful reactions to some of my initial thoughts on the Strauss-Schmitt dialogue. Peter Berkowitz has been an invaluable source of encouragement and advice. I am grateful to Nasser Behnegar, Peter Berkowitz and Steven B. Smith for very helpful comments on earlier versions of this essay. The usual disclaimer applies.

1. Holmes, S., The Anatomy of Anti-Liberalism (Chicago: University of Chicago Press, 1993).Google Scholar

2. Holmes, ibid. at 60: “For Strauss, then, Schmitt fails to be anti-liberal enough”. See Strauss, L., ”Notes on Carl Schmitt, The Concept of the Political ” in Schwab, G., ed., The Concept of the Political trans. Lomax, H. (Chicago: University of Chicago Press, 1996).Google Scholar(hereinafter Concept of the Political). All further references to Concept of the Political and to Strauss's “Notes” are to this edition; however, there are problems with the translation of the latter mat I will occasionally correct in my citations.

3. Meier, H., Schmitt, Carl and Strauss, Leo: The Hidden Dialogue, trans. Lomax, H. (Chicago: University of Chicago Press, 1995).Google Scholar(hereinafter Carl Schmitt and Leo Strauss).

4. I use this expression to indicate that these scholars are sympathetic to Strauss, but without necessarily being Straussians.

5. “Liberal Zealotry” (1994) 103 Yale, L.J. 1363.Google Scholar

6. Behnegar, N., “The Liberal Politics of Leo Strauss” in Palmer, M. & Pangle, T.L., eds., Political Philosophy and the Human Soul: Essays in Memory of Allan Bloom (Lanham, MD: Rowman and Littlefield, 1995) at 259ff.Google Scholar

7. Lefort, C., “Droits de l'homme et politique” (1980) 7 Libre 28.Google Scholar

8. Ferry, L. & Renaut, A., Philosophie politique III: des droits de l'homme à l'idée républicaine (Paris: Quadrige/PUF, 1996),Google Scholar particularly chapter 1, “Le droit naturel antique contre les droits de l'homme”. This reading of Strauss is based upon a very serious and thoughtful engagement with Strauss's writings by Ferry, Luc in the first volume of Philosophie politique, le droit: la nouvelle querelle des anciens et des modernes (Paris: Quadrige/PUF, 1996).Google Scholar This work has the advantage of stating a position like that of Holmes, but without the pot-shots and unfair polemics that often distract from Holmes' serious intent.

9. In Strauss, L., Spinoza's Critique of Religion, trans. Sinclair, E. (New York: Schocken, 1965) at 1-34.Google Scholar

10. Ibid. at 31.

11. Schmitt, C., Political Theology: Four Chapters on the Concept of Sovereignty, trans. Schwab, G. (Cambridge, MA: MIT Press, 1985) (hereinafter Political Theology) at 65-66.Google Scholar All further references are to this edition.

12. Most of Schmitt's criticisms are really just versions of attacks on liberalism by earlier thinkers such as Rousseau and Nietzsche, particularly liberalism's attempt to reduce politics to economics, the predation of the state by private interest groups, and the attempt to make man, or understand man as, un-dangerous. Many of these criticisms were, as well, part of the “conservative ideology” of Schmitt's time—the discourse of a whole range of academics including Oswald Spengler and Ernst Junger, which as Bourdieu suggests, nourished Heidegger just as it was nourished by him. Bourdieu, P., The Political Ontology of Martin Heidegger (Stanford, CA: Stanford University Press, 1991), ch. 2, especially at 13-15.Google Scholar

13. Political Theology, supra note 11 at 13-15. It should be noted that Harvey Mansfield, one of Strauss's best students, has in a recent study brought to light the complexity and subtlety with which the liberal tradition and its progenitors dealt with the problem of the exception through the articulation of the notion of executive power. See Mansfield, Harvey C. Jr., Taming the Prince: The Ambivalence of the Modern Executive Power (New York: Free Press, 1989).Google Scholar This work is an illustration of the premise, developed in the conclusion to this article, that Strauss's articulation of the classic perspective may be a basis for recovering overlooked resources in the modern liberal tradition.

14. Schmitt, ibid.

15. Ibid. at 15.

16. Supra note 13 at 19.

17. See, for instance, Kelsen, H., “Law and Morality” in Weinberger, O., ed., Essays in Legal and Moral Philosophy, trans Heath, P. (Dordrecht and Boston: D. Reidel, 1976) at p. 83 Google Scholar: “Now not only is the methodological purity of legal science endangered by failure to observe the boundary separating it from natural science; it is still further endanger by the fact that it is not divided, or not clearly enough divided, from ethics—that no sharp distinction is made between law and morality.”

18. Political Theology, supra note 11 at 20. Strauss, , near the beginning of Natural Right and History (Chicago: University of Chicago Press, 1965) at 4,Google Scholar note 2, cites a passage in the 1925 German edition of Kelsen's General Theory of Law and State in which Kelsen himself comes very close to drawing the decisionist implication of the groundlessness of the grundnorm: Kelsen states that a dictatorship is just as much a legal order as any other form of human ordering—to deny to the will or command of the despot the character of legal order is to engage in naive naturalright thinking (naturrechtliche Naivität). Kelsen, , Allgemeine Staatslehre (Berlin: 1925) at 335-36Google Scholar. Strauss notes that, although Kelsen had this passage removed from the post-war English translation of this work, insight into the ultimate fate of legal positivism in Germany had not in fact opened up Kelsen to reconsideration of the natural right tradition.

19. Ibid. at 31-32.

20. One can understand Ronald Dworkin's non-positivistic jurisprudence as precisely a response to this problem with positivism as a liberal legal theory—if one can always revert to the moral sources of legal norms in applying them to cases which the norms themselves on their face undetermine, then one can in principle solve the indeterminacy problem. The response, of course, is that reversion to the moral sources is merely reversion to the personal will or outlook of the decisionmaker. And see Dyzenhaus, D., “‘Now the Machine Runs Itself’: Carl Schmitt on Hobbes and Kelsen” (1994) 16 Cardozo, L. Rev. 1.Google Scholar

21. See Dyzenhaus, D., Truth's Revenge: Carl Schmitt, Hans Kelsen, and Herman Heller in Weimar, forthcoming, Oxford University Press; see also Scheuerman, W., “Carl Schmitt's Critique of Liberal Constitutionalism” (1996) 58 Rev. of Politics 299 at 306-07.Google Scholar

22. Political Theology, supra note 11 at 50.

23. Ibid. at 57-58.

24. Supra note 13 at 58.

25. Ibid. at 61.

26. The entire criticism here of the simplistic view of man as “fallen” shows the inaccuracy in Meier's interpretation that for Schmitt, “in light of the truth of original sin, … everything that anthropology can bring to light remains secondary.” Carl Schmitt and Leo Strauss, supra note 3 at 69.

27. Political Theology, supra note 11 at 66.

28. Concept of the Political, supra note 2 at 26-27.

29. See for instance the translator George Schwab's remarks in the introduction to the English edition of Concept of the Political.

30. Concept of the Political, supra note 2 at 30-31.

31. Ibid. at 43.

32. Supra note 2 at 53.

33. Ibid. at 54.

34. Ibid. at 52.

35. Ibid. at 58.

36. Ibid. at 59.

37. Ibid.

38. See for example ibid. at 31-32.

39. Ibid. at 65.

40. Ibid. at 66.

41. Ibid. at 65-66.

42. Ibid. at 65.

43. Political Theology, supra note 11 at 34.

44. Concept of the Political, supra note 2 at 67.

45. Ibid.

46. Ibid. at 97.

47. Ibid.

48. Ibid. at 107.

49. Ibid. at 100-01.

50. Here there are unmistakable parallels to Nietzsche. For an interpretation of Nietzsche that wrestles with the paradoxical project of a moral standard beyond good and evil, see Berkowitz, Peter, Nietzsche: The Ethics of an Immoralist (Cambridge, MA: Harvard University Press, 1995).Google Scholar

51. Strauss, L., The Political Philosophy of Hobbes: Its Basis and its Genesis, (Chicago: University of Chicago Press, 1952) at xiv-xvii.Google Scholar

52. Ibid. at xvi.

53. Strauss, 's mature reflections on Machiavelli are to be found in his Thoughts on Machiavelli (Chicago: University of Chicago Press, 1958).Google Scholar

54. See Machiavelli, N., The Prince, trans. Musa, M. (New York: St. Martin's Press, 1964), ch. XVIII.Google Scholar

55. Indeed, Strauss himself, after publishing his “Notes”, had begun to suspect that the friend/enemy distinction, the animosity between peoples was secondary in Schmitt's thought to the eternal relation of protection and obedience. As Strauss suggested in a letter to Schmitt dated 9 4,1932, the ultimate basis of Schmitt's politics is the need for dominion “but dominion can be established, that is, men can be unified, only in a unity against—against other men.” See “Letter Two” in Carl Schmitt and Leo Strauss, supra note 3 at 125.

56. See his “Preface to the English Translation” in Spinoza's Critique of Religion, supra note 9 at 31.

57. Strauss, L., Natural Right and History (Chicago: University of Chicago Press, 1965).Google Scholar By classic natural right, Strauss means a teaching which appears to have several variants—Socratic-Platonic, Aristotelian, Stoic, and Thomistic. However, Strauss clearly associates the key concepts of classic natural right with features that are common to the Socratic-Platonic, Aristotelian and (pre-Christian) Stoic variants. As will be noted in the conclusion to this article, the Thomistic variant constitutes in fact a very different kind of teaching.

58. Ibid. at 133.

59. Supra note 57 at 133.

60. Ibid. at 136.

61. Ibid. at 160.

62. Ibid. at 160.

63. Ibid. at 161.

64. On this aspect of Strauss's thought the work of Behnegar, Nasser is particularly illuminating: see his “The Liberal Politics of Leo Strauss”, supra note 6, particularly at 253-55Google Scholar and also his paper on Strauss and Weber, forthcoming in Rev. of Politics.

65. Behnegar, N., “The Liberal Politics of Leo Strauss”, supra note 6 at 253.Google Scholar

66. “On a Forgotten Kind of Writing” in What is Political Philosophy? And Other Studies (Chicago: University of Chicago Press, 1959) at 223.Google Scholar Here I do not wish to suggest that Strauss, in the 1950s, viewed Schmitt himself as his main philosophical or intellectual adversary—what Strauss was concerned with was the political outlook of right-wing nihilism, whose philosophically most important representative was Heidegger. Yet, as Bourdieu notes, precisely the apparent a- or anti-political vocabulary and manner of expression of Heidegger, his avoidance of the “naively political” and the “crude language of politics”, tends to exclude or impede a satisfactory open debate about the political meaning of nihilism. Bourdieu, , The Political Ontology of Martin Heidegger, supra note 12 at 36-37.Google Scholar Here Schmitt holds the advantage over Heidegger of not avoiding the “crude language of politics.” The closeness of Schmitt's analysis of the political to Heidegger's analytic of Dasein is discussed in Löwith, K., “The Occasional Decisionism of Carl Schmitt” in Wolin, R., ed., Lowith, K., Martin Heidegger and European Nihilism (New York: Columbia University Press, 1995) at 137-69.Google Scholar See particularly the postscript to this essay, where Löwith elaborates on the ”political decisionism” of Heidegger. I am grateful to Steven B. Smidi for reminding me of these matters and Rosemary Coombe for letting me know the importance of Bourdieu's work here.

67. On McCarthyism, see, among other works, Schreker, E., The Age of McCarthyism: A Brief History in Documents; Reeves, T., ed., McCarthyism (Hinsdale, IL: Dryden Press, 1973)Google Scholar, especially the introduction by Reeves; Feuerlicht, R. S., Joe McCarthy and McCarthyism: the Hate that Haunts America (New York: McGraw-Hill, 1972).Google Scholar

68. See Concept of the Political, supra note 2 at 43.

69. Natural Right and History, supra note 57 at 129.

70. Ibid. at 130.

71. Supra note 57 at 131.

72. Ibid. at 132.

73. In recent work, the young Italian social democratic philosopher Maurizio Viroli has sought to distinguish patriotism from nationalism, and defend a kind of patriotism based on a rational understanding of the goodness or soundness of the goals or ends which one's own society is seeking to procure. Strauss would hardly be surprised that Viroli resorts to the natural right teaching of Cicero to support his approach. Viroli, Se M., For Love of Country: An Essay on Patriotism and Nationalism (Oxford: Clarendon Press, 1995).Google Scholar

74. Ibid. at 132.

75. Supra note 73 at 133.

76. Ibid. at 134.

77. Ibid. at 136-37.

78. Ibid. at 132.1 have made an argument for multiculturalism based on this observation. See Howse, R., “Terms of Engagement: Liberalism and the Good of Multicultural Communities”, McGill Legal Theory Workshop, Faculty of Law, McGill University, 1996.Google Scholar

79. Natural Right and History, supra note 57 at 139-40.

80. Ibid. at 140.

81. Thus, the classic perspective implies that, although both freedom and constraint have a basis in natural right, there is no contextless legal standard for balancing them. In the light of current debates about liberalism, this would place the classic perspective in fundamental opposition to the project of Rawls, for instance, to freeze the contours of freedom in a concept of “public reason” placed beyond revisability in normal democratic debate. Classic natural right, although often identified with a kind of rigid universalism, may be more contextually sensitive (without thereby becoming relativistic) than certain strands in contemporary liberal theory. See on Rawls's political liberalism, Dyzenhaus, D., “Liberalism After the Fall: Schmitt, Rawls and the Problem of Justification” (1996) 22 Phil. & Social Crit. 9.Google Scholar

82. Holmes, S., The Anatomy of Anti-Liberalism, supra note 1 at 47.Google Scholar

83. Natural Right and History, supra note 57 at 125.

84. Ibid. at 141.

85. Supra note 57 at 141

86. Ibid. at 125.

87. Ibid. at 141.

88. Ibid. at 141-42.

89. This is akin to the model of legal education or formation that has been recently articulated by Dean Anthony Kronman, in contrast to the scientistic or technocratic orientation of legal education implied by the notion of jurisprudence as technical skill in the application of an internally coherent system of rules. See Kronman, A., The Lost Lawyer: Failing Ideals of the Legal Profession (Cambridge, MA: The Belknap Press, 1993).Google Scholar See also Natural Right and History, supra note 57 at 152.

90. Strauss, ibid.

91. Ibid. at 160.

92. Supra note 57 at 162-63.

93. See particularly Concept of the Political, supra note 2 at 12.

94. But of course there are important perfectionist accounts of liberalism that deny the idea of state neutrality towards the good, for example, Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1989)Google Scholar. Strauss, was well aware of the perfectionist dimension in the thought of Mill, J.S., who looms large in Strauss's essay “Liberal Education and Responsibility” in Liberalism: Ancient and Modern (Chicago: University of Chicago Press, 1995).Google Scholar In another essay in the same collection, “The Liberalism of Classical Political Philosophy”, Strauss describes the kind of liberalism that “forgets quality, excellence, and virtue” as “perverted liberalism” (at 64).

95. The best account of the tentative and experimental nature of Strauss's adoption of the classic perspective is to be found in his review article “On a New Interpretation of Plato's Political Philosophy” (1946) Social Research 326, where Strauss provides a scathing critique of another scholar's effort to revive Platonism as a doctrine that would solve contemporary theoretical and practical controversies. In the review article, Strauss describes the kind of return to the classic perspective that he is advocating in liberal terms as the attempt to free one's mind from modern preconceptions or prejudices so that one can judge objectively the strength of the attack on modern rationalism by nihilism. “Adherents of the modern principles who lack the ability to take a critical distance from the modern principles, to look at those principles not from their habitual point of view but from the point of view of their opponents, have already admitted defeat: they show by their action that theirs is a dogmatic adherence to an established position. Thus the only answer to the attack on the modern principles which is legitimate on the basis of those principles themselves [i.e., the freedom to doubt or question any dogmatic position] is predetermined by the nature of the modem principles. They were evolved in opposition to, and by way of transformation of, the principles of classical philosophy …. Therefore a free examination of the modem principles is necessarily based on their conscientious confrontation with those of classical philosophy” (at 326-27).

96. Natural Right and History, supra note 57 at 5.

97. Ibid. at 7.

98. Ibid. at 164.

99. Philosophie politique III, supra note 8.

100. See Nussbaum, M., “Non-relative Virtues: An Aristotelian Approach” in Nussbaum, M. & Sen, A., eds., The Quality of Life (Oxford: Clarendon Press, 1993) at 242-69CrossRefGoogle Scholar.

101. And see the idea of liberalism's fall into democracy developed in Dyzenhaus, “Liberalism after the Fall”, supra note 81.