Legalität und Legitimität

by Carl Schmitt

Wenn zu Beginn dieser Darlegungen über "Legalität" und "Legitimität" die heutige innerstaatliche Lage Deutschlands staats- und verfassungsrechtlich als "Zusammenbruch des parlamentarischen Gesetzgebungsstaates" gekennzeichnet wird, so ist das nur als eine zusammenfassende, kurze, fachwissenschaftliche Formel gemeint. Optimistische oder pessimistische Vermutungen und Prognosen interessieren hier nicht; von "Krisen" – seien es nun biologische, medizinische oder ökonomische Krisen, Nachkriegskrisen, Vertrauenskrisen, Gesundungskrisen, Pubertätskrisen, Schrumpfungskrisen oder was immer – soll ebenfalls nicht gesprochen werden. Um die ganze Problematik des heutigen Legalitätsbegriffes, des ihm zugehörigen parlamentarischen Gesetzgebungsstaates und des aus der Vorkriegszeit überlieferten Rechtspositivismus richtig zu verstehen, bedarf es staats- und verfassungsrechtlicher Begriffsbestimmungen, welche die gegenwärtige innerpolitische Lage in ihren staatlichen Zusammenhängen im Auge behalten.

Aus der Einleitung

Genres: Politics, Philosophy, Law, History, Theory, Germany, Academic

131 pages, Kindle Edition

First published January 1, 1933

About the author

Carl Schmitt's early career as an academic lawyer falls into the last years of the Wilhelmine Empire. (See for Schmitt's life and career: Bendersky 1983; Balakrishnan 2000; Mehring 2009.) But Schmitt wrote his most influential works, as a young professor of constitutional law in Bonn and later in Berlin, during the Weimar-period: Political Theology, presenting Schmitt's theory of sovereignty, appeared in 1922, to be followed in 1923 by The Crisis of Parliamentary Democracy, which attacked the legitimacy of parliamentary government. In 1927, Schmitt published the first version of his most famous work, The Concept of the Political, defending the view that all true politics is based on the distinction between friend and enemy. The culmination of Schmitt's work in the Weimar period, and arguably his greatest achievement, is the 1928 Constitutional Theory which systematically applied Schmitt's political theory to the interpretation of the Weimar constitution. During the political and constitutional crisis of the later Weimar Republic Schmitt published Legality and Legitimacy, a clear-sighted analysis of the breakdown of parliamentary government Germany, as well as The Guardian of the Constitution, which argued that the president as the head of the executive, and not a constitutional court, ought to be recognized as the guardian of the constitution. In these works from the later Weimar period, Schmitt's declared aim to defend the Weimar constitution is at times barely distinguishable from a call for constitutional revision towards a more authoritarian political framework (Dyzenhaus 1997, 70–85; Kennedy 2004, 154–78).

Though Schmitt had not been a supporter of National Socialism before Hitler came to power, he sided with the Nazis after 1933. Schmitt quickly obtained an influential position in the legal profession and came to be perceived as the ‘Crown Jurist’ of National Socialism. (Rüthers 1990; Mehring 2009, 304–436) He devoted himself, with undue enthusiasm, to such tasks as the defence of Hitler's extra-judicial killings of political opponents (PB 227–32) and the purging of German jurisprudence of Jewish influence (Gross 2007; Mehring 2009, 358–80). But Schmitt was ousted from his position of power within legal academia in 1936, after infighting with academic competitors who viewed Schmitt as a turncoat who had converted to Nazism only to advance his career. There is considerable debate about the causes of Schmitt's willingness to associate himself with the Nazis. Some authors point to Schmitt's strong ambition and his opportunistic character but deny ideological affinity (Bendersky 1983, 195–242; Schwab 1989). But a strong case has been made that Schmitt's anti-liberal jurisprudence, as well as his fervent anti-semitism, disposed him to support the Nazi regime (Dyzenhaus 1997, 85–101; Scheuerman 1999). Throughout the later Nazi period, Schmitt's work focused on questions of international law. The immediate motivation for this turn seems to have been the aim to justify Nazi-expansionism. But Schmitt was interested in the wider question of the foundations of international law, and he was convinced that the turn towards liberal cosmopolitanism in 20th century international law would undermine the conditions of stable and legitimate international legal order. Schmitt's theoretical work on the foundations of international law culminated in The Nomos of the Earth, written in the early 1940's, but not published before 1950. Due to his support for and involvement with the Nazi dictatorship, the obstinately unrepentant Schmitt was not allowed to return to an academic job after 1945 (Mehring 2009, 438–63). But he nevertheless remained an important figure in West Germany's conservative intellectual scene to his death in 1985 (van Laak 2002) and enjoyed a considerable degree of clandestine influence elsewhere (Scheuerman 1999, 183–251; Müller 2003).

Unsurprisingly, the significance and value of Schmitt's works

Reviews

[Liam · Rating 5 out of 5]

"Without sense of contradiction, for example, once can today consider a dissolution of the Reichstag 'strictly legal,' even though it is, in fact, a coup d'etat, and, vice versa, a parliamentary dissolution might substantively conform to the spirit of the constitution, and yet not be legal. Such antitheses document the breakdown of a system of legality, which ends in a formalism and functionalism without substance or reference points." (10)

"The preexisting and presumed congruence and harmony of law and statute, justice and legality, substance and process dominated every detail of the legal thinking of the legislative state. Only through the acceptance of these parings was it possible to subordinate oneself to the rule of law precisely in the name of freedom." (19)

"An unconditional equivalence of law with the results of any particular formal process, therefore, would only be blind subordination to the pure decision of the offices entrusted with lawmaking, in other words, a decision detached from every substantive relation to law and justice, and, consequently, an unconditional renunciation of any resistance." (21)

"If the assumptions underlying the legislative state of the parliamentary-democratic variety are no longer tenable, then closing one's eyes to the concrete constitutional situation and clinging to an absolute, 'value-neutral,' functionalist and formal concept of law, in order to save the system of legality, is not far off. The 'law,' then, is only the present decision of the momentary parliamentary majority." (25)

"The emptiness of mere majority calculus deprives legality of all persuasive power." (29)

"The principle of equal chance is of such sensitivity that any serious doubt about the loyalty of all participants already renders the principle's application impossible. For it is self-evident that one can hold open an equal chance only for those whom one is certain would do the same." (33)

"In general, it would be a peculiar type of 'justice' to declare a majority all the better and more just the more overwhelming it is, and to maintain abstractly that ninety-eight people abusing two persons is by far not so unjust as fifty-one people mistreating forty-nine. At this point, pure mathematics becomes simple inhumanity." (41)

"[N]orms are valid only for normal situations..." (69)

"If the parliamentary legislative state typically permits a 'state of exception' with the suspension of basic rights, its intention is not to render the special commissioner equivalent with the legislature or the special commissioner's decrees equivalent with statutes, but to create the freedom to issues measures that are necessary and effective." (72)

[noblethumos · Rating 5 out of 5]

"Legality and Legitimacy" is a book by the German legal and political theorist Carl Schmitt, first published in 1932. In this book, Schmitt explores the concept of political authority and the relationship between legality and legitimacy in modern politics.

Schmitt argues that the modern state is defined by its ability to claim and maintain a monopoly on the use of legitimate force. He contends that the authority of the state rests on two key concepts: legality and legitimacy.

Legality refers to the formal rules and procedures that are used to establish and maintain political authority. Legitimacy, on the other hand, refers to the moral or ethical basis of political authority. According to Schmitt, a legitimate political authority is one that is able to establish and maintain order and security, and that is recognized as such by the people.

Schmitt contends that there is a fundamental tension between legality and legitimacy in modern politics. He argues that the emphasis on legality has led to a narrow and formalistic understanding of political authority, which has undermined its legitimacy in the eyes of the people.

In Schmitt's view, the legitimacy of political authority depends on the ability of the state to make decisions in times of crisis and emergency, even if these decisions may not conform to established legal norms. He argues that the state must be able to act decisively and with authority in such situations, in order to maintain order and security and to protect the common good.

Overall, "Legality and Legitimacy" is a significant work of political theory that explores the complex relationship between law, morality, and political authority in modern politics. Schmitt's insights into these issues have been highly influential in shaping contemporary debates in political theory and jurisprudence.

GPT

[Michael · Rating 3 out of 5]

I am not going to lie, I had to skim a lot of this book because the legal jargon was lost on me. Though, I think by reading other reviews that helped to spark my memory and get me to think, I understand Schmitt's central thesis. The modern liberal legislative state attempts to be value-neutral, merely setting the norms that all participants must follow. However, its lack of value content allows it to be undermined by those who seek to overthrow the system. I think the most relevant contemporary example is how certain segments of the American Right, most notably the Project 2025 clique, want to overturn the existing American order, and there is nothing inherently illegal about what they're planning. American democracy allows for it, but many people, and dare I say most Americans, do not view it as legitimate. Schmitt also notes the problem that emerges when the legislature is not longer seen as accurately representing the people's will: it loses its legitimacy.

Most of the text centers around the contradictions within the Weimar Constitution. Most notably, Schmitt focuses on the three sources of legislation present within the constitution and how the first part of the Weimar Constitution is value neutral while the second part makes value claims.

[Charles Haywood · Rating 5 out of 5]

It is frequently said, and it is entirely true, that the Regime which rules us is illegitimate. But what does that precisely mean? No surprise, Carl Schmitt lights the way to an answer, in one of his lesser-known works, Legality and Legitimacy. This book should be more talked about—it was published in Berlin in 1932, when and where everyone knew that matters could not continue as they were, and that dramatic change was sure to come. As with the Germans of 1932, so with the Americans of 2023. Thus, studying and reflecting on this work is worth the effort.

Schmitt was a lawyer by training, and this book, more so than his better-known books, is a work of legal theory. That does not mean, however, that its purpose was abstract. Given the ambiguities and internal contradictions of the Weimar Constitution, and the stakes in the Germany of the time, with the post-World War I state existentially threatened both by Communists and National Socialists, Schmitt meant his work as having immediate political application. Unlike today’s America, moreover, 1930s Germany was a serious society where major political decisions were influenced by such works, and in fact the most prominent leaders of the time sought out men such as Schmitt as advisors. Finding a path through the thicket, rather than offering legal analysis of narrow, academic interest, was Schmitt’s primary aim—though his secondary aim, as always, was advancing himself. What his own political goals were precisely remains unclear; he had no use for “democratic” forms of government, but neither did he desire the destruction of the existing state by worse evils.

As usual with Schmitt, this book is not easy to read. It was only translated into English in 2004, and would be very difficult to comprehend, even for someone with reasonable historical knowledge of the Weimar period, without the extensive notes provided by the translator, Jeffrey Seitzer. In particular, Schmitt assumes the reader’s familiarity both with the details of the Weimar Constitution, and with the then-current controversies surrounding it, all of which would be opaque without the notes. Also helpful is John P. McCormick’s long and erudite, though often tendentious, Introduction, which spends too much time trying to figure out what Schmitt “really thought,” meaning whether his aim in writing the book was a concealed effort to assist the National Socialists. As I’ve said before, nobody should care at all, except as a matter of minor historical interest, what Schmitt’s relationship with the National Socialists was, at this point or later.

Schmitt’s focus here is narrower than in his other works such as The Concept of the Political and The Crisis of Parliamentary Democracy, which survey a broader landscape, both in time and space. His interest in Legality and Legitimacy is the constitutional system immediately before him, and in how that serves, or does not serve, the German people. He addresses many questions and problems, but the core matter on which he focuses is whether it can be, under the Weimar Constitution as well as abstractly, that a legislature can change the core norms underlying a constitution that establishes that legislature. By “norms,” Schmitt means expressions of the substantive values of a people, which pre-exist a constitution drafted by that people. If such norms exist, this implies that any law promulgated by a parliament which contradicts those values is, or should be, inherently suspect. It also implies that to the extent a parliament’s power is fragile or dubious, and a crisis of authority therefore results, examination of those substantive values by a legitimate alternative decisionmaker is a possible path out of the deadlock.

To an American, all this talk of norms and values sounds like Warren Court-type judicial review, Left judges implementing legislation pleasing to them, untied to any written document, while chanting “our values.” But this is not what Schmitt means at all. The American system of judicial supremacy, that is, the one created out of whole cloth by judges in 1803 in Marbury v. Madison, not found anywhere in the Constitution itself but used for decades to advance the Left, bears almost no relation to the structure of the Weimar Constitution, or for that matter to most European constitutions before the advent of postwar Left dominance. Still, one problem with Schmitt’s framework is that he did not anticipate this, that enemies of a society would arrogate to themselves the power to impose new values on a society, while claiming to not be changing anything. In retrospect, it’s obvious why the Left, in political systems where the popular will is represented in the halls of power, loves rule by judges—it allows them to evade the popular will, wrapped in a mantle of false neutrality. But nowhere does Schmitt talk about this risk; he instead seems to think that a society’s values can always be objectively derived by those charged with interpreting a constitution (which, again, in Schmitt’s frame does not mean judges—what it does mean, we will see).

Schmitt divides modern political systems into a typology of four: legislative state, jurisdiction state, governmental state, and administrative state. In a legislative state, of which a parliamentary legislative state such as Weimar is one, “norms intended to be just are the highest and decisive expression of the community will,” and all else is subordinated to those norms. “There is no ruling and mere power at all anymore. Whoever exercises power and government acts ‘on the basis of law’ or ‘in the name of the law.’ ” The legislature establishes these norms, which are executed by officials who are permitted to exercise state power, a separation that is crucial to the legislative state. And because “only invalid, impersonal norms are being applied,” this is “a closed system of legality” which “justifies the suspension of every right to resistance.” (Schmitt never fully fleshes out this “right of resistance,” but it lurks in the background of everything he says. He implies that it is inherent in all polities, though the right may be temporarily suspended in an ideal system, so long as it remains ideal. McCormick, no dummy, notices the danger in this line of thought to today’s leftist Western governments, and shrieks in horror that whatever Schmitt meant, he certainly didn’t mean that the citizenry should be allowed weapons.)

A jurisdiction state, by contrast, is one “in which the deciding judge in a legal dispute has the last word.” What Schmitt means is common law states, presumably primarily England, though neither the common law nor England is mentioned, where (prior to the modern era) judges formed a body of law by directly mediating a society’s norms, of “law and justice,” outside of the law formed by a legislature. But this only works in societies where “law and justice have unambiguous content”—in other words, in homogenous, united societies, a point to which we will return. A governmental state is, in essence, any authoritarian state with a ruling head. Finally, by administrative state Schmitt does not mean what we mean when we say administrative state. He means a state where “things administer themselves,” without reference to either norms or men, through “an administrative decree that is determined only in accordance with circumstances, in reference to the concrete situation, and motivated entirely by considerations of factual-practical purposefulness.”

All states, to be sure, are a mix of these types, and each may by more or less appropriate or useful for any given society’s situation, but “it remains for the most part self-evidently clear where the focal point of the deciding will lies.” Schmitt means decisions “at the key moment,” echoing his famous philosophy of decisionism (not that he called it that), but exploring this broad avenue further is not his current purpose.

The legislative state differs from the other three types in that it focuses on legality, in the form of generally applicable and properly formed legislative acts, rather than legitimacy. By legitimacy, which he never precisely defines, Schmitt appears to mean the justification of a state form. In a legislative state, legitimacy follows legality. If legislative acts are not legal, the state has no legitimacy (although, as we will see, the converse is not true—if legislative acts are legal, that does not always mean the state is legitimate). By contrast, the acts of a jurisdictional, governmental, or administrative state are acts of will, rather than of form, and their lack of legal justification does not call into question the legitimacy of the state in the same way as can occur in a legislative state.

All this is runup to Schmitt’s main set of claims—that legality, and therefore legitimacy, in the Weimar state, a legislative state, is determined by adherence to its constitution, and thus interpretation of that constitution is the key to determining legitimacy. And if that constitution can be interpreted to open “the legal process to all conceivable aspirations, goals, and movements, even the most radical and revolutionary,” then no goal or movement which gains power through the constitution can be denied to be legitimate, whatever may result for the state, including its destruction. This glaring contradiction is what Schmitt tries to solve.

The heart of Legality and Legitimacy is Schmitt’s thoughts on what he calls “equal chance.” Beyond ensuring that legislative acts are legal, what makes a legislative state legitimate, what suspends the right of resistance, is the right of every political movement to have a real, not fake, opportunity to win power. The skeleton key to Schmitt’s thoughts on equal chance is his cogent analysis that majority rule, direct or indirect, only can ever work “when an essential similarity among the entire people can be assumed.” Only in that case is the result of a vote not the mere suppression of the minority, but the revealing of an agreement and consensus among the people. He repeatedly claims that “every democracy rests on the presupposition of the indivisibly similar, entire, unified people.” (This claim is tied to his implication, in The Concept of the Political, that a people with no common way of life, who thus have no common enemy, no longer exist as a political entity.)

But such a situation most definitely did not hold in Weimar, and probably never holds, except perhaps for brief times in small states (it most definitely does not hold in 2023 America). Schmitt, therefore, sees a fatal problem with equal chance, one that will always arise in a legislative state, and not only with “radical and revolutionary” goals and movements. A majority that comes to power, if its achievement is merely the suppression of the minority rather than the revealing of an agreement, will inevitably entrench itself, using the devices that are necessarily available to those in power. This will invalidate the equal chance of others to rule. And it cannot be the case that gaining fifty-one percent of a vote justifies tyranny. “The parliamentary legislative state, which today rests on the rule of temporary majorities, can deliver the monopoly of the equal exercise of power to the majority parties and can demand that the minorities renounce the right to resistance only so long as the equal chance of achieving a majority really remains open.”

But the tendency of the majority is always to close this door, usually by using the excuse of emergency. “Every critical moment endangers the principle of the equal chance because it reveals the inevitable opposition between the premium on the legal possession of power and the preservation of the availability of the equal chance for the achievement of domestic political power.” Every time there is an “emergency,” when there is some resultant call for “public security and order,” those holding the premium, the extra powers that result from holding power, will tend to honor the principle of equal chance only in the breach. Thus, the minority party will in response tend to view the majority party as behaving illegally, as violating the principle of equal chance. “So at the critical juncture, each denounces the other, with both playing the guardian of legality and the guardian of the constitution. The result is a condition without legality or a constitution.” In short, the “entire, primary effect [of the premium given by power] eliminates any thought of the equal chance and becomes manifest in the proper use of the extraordinary powers in the state of exception.”

Even though this is a principle of general applicability and Schmitt never says so explicitly, his objection is in practice quite clearly aimed at the Communists and National Socialists, whose mere existence put the lie to Germany being a unified country. Both groups, in theory and in practice, openly supported both illegal methods of seizing power as well as legal methods, that is, working within the system. But as to the latter, they were equally explicit that once power was achieved, it would never be given up. (This is encapsulated in the old joke that the Communist political principle was “One man, one vote, once.” In fact, interestingly, this would be a sovereign dictatorship in Schmittian terms, although Schmitt himself does not here draw the parallel to his earlier work, Dictatorship.) Were such a group to obtain the premium, not only would they certainly and immediately use that to ensconce themselves, they would then change the constitution itself, as the text of the constitution permitted, a permission which was something legal positivists, such as Hans Kelsen, a frequent target of Schmitt’s ire, held could not be changed or overridden. This is the nut that Schmitt tries to crack.

His solution is to view the Weimar Constitution’s two parts, the first one procedural, the second one a discussion of rights, as schizophrenic, and to grant primacy to the second part. He uses this textual reading to conclude that even under the Weimar Constitution, whatever the first part may say, “equal chance” can only apply to those who themselves support equal chance, not to Communists, and not to National Socialists. But the Weimar Constitution itself contained no obvious vehicle to reify this proposed limitation, which, again, was affirmatively denied as possible by legal positivists. Hence Schmitt’s writing of this book, to argue for his proposed resolution to the crisis of the German state.

To implement his solution, Schmitt fell back on the extremely broad, but somewhat vague, powers granted in the Weimar Constitution to the Reich President to rule by decree—more specifically, to insist that he decree that a party not willing to maintain the principle of equal chance be forbidden from modifying, on paper or in practice, the fundamental norms of the constitution (a provision made explicit after World War II in the new German constitution). The second half of the book is a long, technical, and complex analysis of “extraordinary lawgivers” under the constitution, which boils down to how the President might do this, and more importantly, how it might be textually and philosophically justified. Schmitt never says exactly that he advocates such rule by decree, but it’s an obvious application of his core philosophy of decisionism, it’s pretty clear in the book at what he’s pointing, and he makes the claim explicit in an Afterword he wrote in 1958.

It is evident, however, that Schmitt thought of his resolution not as the necessary consequence of textual analysis, but as the cutting of a Gordian Knot. He ends the book: “The core of the [second, values-specific, part of the Weimar Constitution] deserves to be liberated from self-contradictions and compromise deficiencies and to be developed according to its inner logical consistency. Achieve this goal and the idea of a German constitutional work is saved. Otherwise, it will meet a quick end along with the fictions of neutral majority functionalism that is pitted against value and truth. Then, the truth will have its revenge.” So it came to pass.

The problem created by Schmitt’s proposed solution is that in his own analysis a legislative state can only be legitimate if equal chance exists. This means that when equal chance is removed by a decisionmaker such as the Reich President, whatever the sound grounds of necessity behind such a decree, the legislative state is ipso facto no longer legitimate. Schmitt never says this, but no doubt this logical inevitability is the ground of the accusation against him that his purpose was to undermine the Weimar state. Maybe it was, or maybe he was just trying to find the least bad alternative, jumping from ice floe to ice floe and hoping something would turn up. That’s usually a bad strategy in practice, and so it proved.

What does this mean for us, nearly a hundred years later? To start, our own Regime, a form of legislative state, is wholly illegitimate in Schmittian terms . . . . [Review completes as first comment.]

[mwr · Rating 4 out of 5]

You see why Schmitt was an important constitutional lawyer most clearly in this text. Folks arguing for procedural legitimacy are basically attempting to address the criticisms Schmitt makes of legal positivism here. For my money they don't do it very well.

[6655321 · Rating 4 out of 5]

Schmitt is a fascist and probably the most honest European about political theory... Legality and Legitimacy is probably not his most engaging work but is (compared to State of Exception) extremely concrete (dealing with concepts of legality in terms of the German Constitution).

[Victor · Rating 4 out of 5]

Für staatsrechtlich interessierte Jurist*innen Pflichtlektüre.

[Iohannes · Rating 2 out of 5]

interesting analysis of the contradictions of the Weimar Constitution, that was pretty much confirmed only a short time later by the Nazi's abuse of article 48; but due to the specitivity of the subject matter not as engaging as his other writings. Feel like most of the stuff that's relevant for today is elaborated on elsewhere in his work as well.

[Jacob Neplokh · Rating 5 out of 5]

There is a sneaky Hegelian undercurrent here, I think!

Here is one example: "Only later will it be clear who succeeds in taking full advantage of the legal possibilities, but especially in exploiting the political premium from the legal possession of power to use the Weimar Constitution as an instrument and means to their party goals" (50, emphasis added).

[Simon · Rating 3 out of 5]

Insightful, but very technical. Not that enjoyable.

[Jean Fausto · Rating 3 out of 5]

That's a very good edition. The translator's notes are very precise and balanced in evaluating both Schmitt and his work; and though McCormick's introduction is quite vehement in its critics of Schmitt's work and person, it also brings coherent, precise arguments to corroborate his position, and a good contextualization.

As to Schmitt's work itself: some very interesting questions are posed regarding positivist constitutional theory, but Schmitt's conclusions are based on some weak assumptions, most notably the one about democracy's dependence on homogeneous people with a single will. As McCormick well notices, democratic theory is ripe with and very consistent when admitting pluralism in democratic systems.

[Luke Echo · Rating 4 out of 5]

Schmitt's polemic against the Weber and the Legal Positivists claims that Legality only has Legitimacy.

[Nicolás · Rating 5 out of 5]

La verdad siempre se venga.