Carl Schmitt has had a surprising posthumous global career. Schmitt was a major legal thinker of the Weimar period, a leading legal voice of the German National Socialist regime and an influential behind the scenes intellectual presence in the West German public law scene after 1945 until his death in 1985. But unlike his interlocutors in Weimar debates, luminaries such as Hans Kelsen, Hermann Heller or Rudolf Smend and unlike any other legal scholar who was a prominent Nazi and an avowed antisemite, Schmitt is a much read and cited author in the world of global and comparative public law today. He is a prominent influence on thinking about public law and international law in China. And in the United States, where he had a moderate influence on the left in the last decades of the 20th century, his posthumous career really took off in the 21st century after September 11 2001[4] and never abated, as themes of democratic backsliding and the rise of populist authoritarianism rose to the foreground of academic interest.
The essays that follow are an attempt to make sense of this phenomenon. We wanted to address this issue not primarily as a puzzle of academic sociology. Instead we wanted to focus on the question what concepts, ideas, arguments or insights Schmitt has contributed that might justify such interest. That is, we wanted to take Schmitt seriously as a legal thinker.[5] Yes, he was personally and politically deeply compromised and few who are familiar with his biography would describe him as a man of integrity (to put it mildly). If cancellation – refusing to engage the writings of morally discredited persons- were an intellectually plausible scholarly response to moral failure, then surely Schmitt would deserve to be cancelled.[6] Furthermore the majority of his writings are deeply focused on historical contexts and events 75 or even 100 years ago. Schmitt is not a thinker who conceived of his writings as part of a philosophia perennis, but as interventions in concrete debates in a particular situation and historical context. In his view the very point of concepts is to justify particular positions in concrete historical political struggles. Yet neither the moral character of the man nor the historical situatedness and orientation of his writings preclude the possibility that engaging Schmitt as a legal thinker remains worthwhile. But it does raise the question, whether and why exactly that is in fact the case.
Against this backdrop, our workshop at NYU Law School, on which the collection of essays in this Working Paper is based, explored to what extent Schmitt is relevant to contemporary public law and theory. The essays are: Carl Schmitt’s Moment? by Ewa Atanassow; The Many „States of Exception“ in the Work of Carl Schmitt by Anna-Bettina Kaiser; The Struggle Over a New Nomos of the Earth by Mattias Kumm; Revisiting Schmittian Arguments in International Law by Christian Neumeier; Form of State and Form of Government in Carl Schmitt’s Constitutional Theory by Vlad Perju; Carl Schmitt as a Method? Whether Schmitt is Still Relevant Methodologically by Dominik Rennert; Is Carl Schmitt Still Relevant to Contemporary Public law? by Andreas Voßkuhle; and Cancelling Schmitt? by Joseph H.H. Weiler.
Together, these essays address questions such as: Are there good reasons to read Schmitt today? Which of his texts still have something to say to us today? Can we better understand today’s crises by reading Schmitt, the classic critic of liberalism? Or is the reception of Schmitt merely a fad, coupled with the thrill of referencing a “dangerous mind”[7]—or even a sign of an increasingly illiberal attitude on the part of our scholarship? Reading the following essays was unlikely to resolve these questions, but they provide contributions and insights that are likely to make any judgment about these issues better informed.
[4] Many of Schmitt’s writings, among them his most important ones, were translated into English for the first time after 2000. Examples include his 1928 book on “Constitutional Theory” (Duke 2008) and his 1950 monograph on the history and theory of international law, “The Nomos of the Earth” (Telos 2003).
[5] Schmitt insisted that that was all he ever was or aspired to be was a jurist of the Jus Publicum Europeaum.
[6] Joseph Weiler, Cancelling Carl Schmitt?, EJIL:Talk!, August 13, 2021, available at: https://www.ejiltalk.org/cancelling-carl-schmitt/. Weiler argues against cancelling.
[7] Jan-Werner Müller, A Dangerous Mind: Carl Schmitt in Post-war European Thought (2003).