Carl Schmitt for the Masses: The Problem of Legitimacy

What makes a state legitimate? Given how problematic the idea is, you would think our current regime would pay more attention to establishing its own legitimacy. Instead, they go the opposite way.

5. Carl Schmitt for the Masses: The Problem of Legitimacy

Foundations

Let’s dive into another of Carl Schmitt’s seminal works: “Legality and Legitimacy.” There are a lot of unspoken, awkward questions that underlie modern constitutional and parliamentary democracies, questions that we don’t usually ask or even want to ask. Why do people agree to be ruled? If state power is inherently coercive, is this coercive power legitimate? If it is, why is it, and under what conditions? Can a government only be truly non-coercive when 100% of the population gives ascent to be ruled? Do our modern systems of government satisfy adequately the conditions for legitimacy? Does the voting process make a society “democratic?” Can elections ever make a government truly legitimate?

As noted in the previous paragraph, all states are coercive. There is always the threat of force and violence when talking about any form of the state. What gives that violence legitimacy? What gives the state the “right” to act coercively towards the general population? Is there something beyond the mere use of force that grounds its use? Is force based on nothing more than its own application, that is, the will to power? Schmitt attacks these questions and more.

Along side of this, Schmitt works with the understanding that the condition of legitimacy is the necessary foundation which would justify a citizen giving up or suspending their “right to resistance.” Why should I subordinate myself to the ruling authority and give up my own freedom to act in my own interests? What form of state legitimacy would overcome my right to resistance? Schmitt argues that only a properly grounded legitimate state can make that ask from its citizens. The benefit of this legitimacy is that the state is able to rule without needing to engage in active violence and the citizenry is able to allow themselves to be ruled without constantly needing to resist this rule. This is the compact between governed and government.

Legislative, Jurisdiction and Administrative States

Schmitt opens the book talking about the different types of states and their relationship to the law. In a legislative state, society is in theory governed by a set of norms as expressed through laws produced by lawmakers. Schmitt wants to draw our attention to the reality that while the laws themselves do not rule, they do function as societal norms meant to govern behavior. Those who exercise power are expected to do so on the basis of the law, that is, in the name of the law. They are expected to govern within a set of norms and not through the exercise of mere power.

Ideally, this is supposed to be a “closed system” in which everyone accepts the basic norms of society as expressed in and through its laws. As long as everyone lives within this system and everyone accepts the norms of the system, it is reasonable to suspend your “right to resistance.” This is the idea of the unitary state. A single set of norms, expressed in a single set of laws allows society to function in a state of “legality.” Because the state is unitary and thus the expression of a single set of norms, this gives the state legal justification for enforcing those rules coercively if necessary.

For Schmitt, morality is not a private thing and cannot be a private thing. All laws are an expression of morality, an expression of norms. You cannot have two competing sets of norms in society, because that would create two competing sets of laws, two legal realities. This would create the conditions for civil war. The idea of the separation of religion and politics, church and state, is a fiction. If you have laws in a society, you have an operative morality. And if you have an operative morality, there is a set of beliefs, almost always some form of religious belief, for which those norms are an expression.

What he is laying out in these early portions is the foundation for a critique of the “marketplace of ideas.” Schmitt argues that this is a fiction. It simply is not the case that there are numerous ideas out there in society competing equally and fairly for attention. We are told that when ideas emerge from that competition they will be true or the best. Any functioning state must by definition be unitary, working from one set of norms over and above all others. Its system of laws will give expression to that set of norms. There is always a dominant set of beliefs that “ground” a legal system and the state. If you have two genuine competing set of beliefs, you have the conditions for either civil war or for the oppression of the minority, or minorities. Ideas do not compete on a level playing field, and the best ideas do not emerge out of that competition. The very fact that a society has a legal system says that one idea has already won that battle.

The jurisdiction state is one based on the decisions of judges and not on the laws crafted by lawmakers. In a jurisdiction state, judges interpret a combination of case law, past precedent, and even oral tradition, applying “timeless” norms to specific decisions of the day. Because of this, the jurisdictional state is the most conservative. The judge renders decisions directly in the name of the law without necessarily a reliance on the need for the mediating expression of norms in written laws, legislation and constitutions. As long as the judge is not arbitrary, but faithfully interpreting the content of the received tradition and the normative context of the unified society, this form of governance retains legality and legitimacy.

The administrative state is the final form Schmitt identifies. It typically has a head of state, a sovereign person, who provides legitimacy for the regulations of the administration. In this form of state, the emphasis is upon utility and purposefulness of regulations as opposed to pre-legal ideas of law and justice. It is intended to function “amorally,” that is without reference to any pre-existing ideas of law and justice. Utility is supposed to take precedent over the normative, over morals. The stated focus is on efficiency and effectiveness and a reliance upon trained experts who are supposed to be free from ideological and political influences.

In practice, Schmitt acknowledges, most modern states are either intentionally or unintentionally a mix of all three elements, the legislative, the jurisdictional and the administrative.

Modern Liberalism and the “Closed” State

The intent of most modern states is that they are formed out of a closed system of rationality that does not require them to be “grounded” in anything. Their legitimacy is not supposed to be dependent upon religion, nature, or tradition. They are self-contained. The power and legitimacy of the system comes from the rationality of the system itself. However the system is judged, it must be judged on the basis of its own rationality from within the system itself. It has no higher foundation or authority other than itself. Reason determines law. Reason determines the morality that is expressed in the law.