Segall

 Schmitt mocks the liberal political theory of his time as an “interesting spectacle” because of the way its contradictory empiricist and rationalist tendencies are constantly facing off against one another. Though Locke clearly contrasts “law” with the “command” of the monarch (thus rejecting decisionism), Schmitt suggests there remained at least a “vivid awareness of the meaning of the exception” in his pre-critical conception of natural law. Kant’s critical rationalism, on the other hand, simply ignores the exception, since acknowledging it would confound the unity and order required of his transcendental system. Neo-Kantians like Kelsen do what they can to regulate the exception as precisely as possible, to articulate in detail when in an emergency situation it is legitimate for law to “suspend itself.” Schmitt objects: “From where does the law obtain this force, and how is it logically possible that a norm is valid except for one concrete case that it cannot factually determine in any definitive manner?” (1934, 14). Schmitt insists that any philosophy that claims to take concrete life seriously must face the exception, the extreme case, since it is more important than the rule: …the seriousness of an insight goes deeper than the clear generalizations inferred from what ordinarily repeats itself. The exception is more interesting than the rule. …In the exception the power of real life breaks through the crust of mechanism that has become torpid by repetition. (1934, 15). Here is the first opportunity for dialogue with Whitehead, who certainly took concrete life and creative advance seriously. In Process & Reality he claims that “the moralistic preference for 4 true propositions [has] obscured the role of propositions in the actual world.” The problem, he explains, is that propositions have been collapsed into logical judgments. “The result is that false propositions have fared badly, thrown into the dustheap, neglected.” Instead, propositions, true or false, ought to be distinguished as non-conscious “lures for feeling” that only rarely rise to the level of consciously stated judgments. Thus, “in the real world it is more important that a proposition be interesting than that it be true” (1929, 259). Of course, truth is important because of its contribution to interest. But if truth is repetition of the established rule, then the uncompromising prohibition of false propositions would leave us imprisoned in bureaucratic routine. Strictly formal systems aimed solely at the universal and so blind to the personal are, in the words of Whitehead’s favorite poet, “rather proud to be/The enemy of falsehood, than the friend of truth” (1970, 209). Such systems—content rather “to sit in judgment that to feel”— leave no room for the unpredictably unique expressions of creative process. Schmitt (1934, 15) quotes Kierkegaard’s Repetition: Over time, one tires of the interminable chatter about the universal and the universal, which is repeated until it becomes boring and vapid. There are exceptions. If one cannot explain them, then neither can one explain the universal. One generally fails to notice this, because one does not normally grasp the universal passionately, but only superficially. The exception, on the other hand, grasps the universal with intense passion. (2009, 78) As becomes apparent below, it is important to remember Whitehead’s theory of propositional feelings when dealing with the statements of scripture. Even factually false propositions (e.g., about historical human motivations and behaviors) may function in a powerful worldtransforming way as ideals luring us toward greater goodness and beauty. It is also important to note, as Catherine Keller does (2018, 40), that Schmitt conveniently ignores the trajectory of Kierkegaard’s dialectic in the above passage, whereby the legitimate exception gains the attention of and becomes reconciled with the universal. In the real world, unexpected historical events give rise to novel needs and interests, catalyzing reactions against any formulaic treatment of public law. Thus, the law must be self-evolving, the state self-legislating. While philosophers may be tempted to imagine that political truths can be established by way of abstract conceptual dialectics, in historical reality sovereignty and law have more often been defined by bloody power struggles. Schmitt agrees with Rousseau about at least one thing: “The connection of actual power [coercive force] with the legally highest power [which is a mere formula, sign, or signal] is the fundamental problem of the concept of sovereignty” (1934, 18). In other words, what is the relationship between the state’s monopoly on violence and the symbolic power of a legal order? Neo-Kantian liberal theorists like Kelsen lean on the is/ought distinction in an attempt to subject legal praxis to formal epistemological critique. Legal concepts are thereby thought to be purified of personal political or religious interests. The origin of authority in a liberal constitutional state is therefore not a “sociopsychological power complex” or personal sovereign but rather the ideal unity of a system of norms. Kelsen claims the positivist objectivity of his approach is secured by the fact that the norms he affirms are not his own personal value assessments but belong to the given legal order governing the society he finds himself in. For Kelsen, then, “the concept of sovereignty must be radically repressed,” as he himself put it (Das Problem der Souveränität; quoted in Schmitt 5 19934, 21), since there can be no legal decree transcending the unified system of law. Schmitt retorts: “Unity and purity are easily attained when the basic difficulty is emphatically ignored and when, for formal reasons, everything that contradicts the system is excluded as impure” (1934, 21). Krabbe does not ignore the question of sovereignty, but addresses it by making the law itself sovereign, rather than the state: “However one wants to approach it,” he writes, the doctrine of sovereignty of law is either a record of what is already real or a postulate that ought to be realized. …We no longer live under the authority of persons, be they natural or artificial (legal) persons, but under the rule of laws, spiritual forces. …These forces rule in the strictest sense of the word. Precisely because these forces emanate from the spiritual nature of man, they can be obeyed voluntarily. (Die modern Staatsidee; quoted in Schmitt 1934, 22) No more can be said about the foundation of legal order and the state, then, than that they spring from our spiritual feelings of what is right. The state thus expresses the legal consciousness emergent from the life of the people. Krabbe is said to converge with the “association theory” founded by Otto von Gierke (1841-1921), which practically eliminates the concept of authoritarian sovereignty, replacing it with the internationalist ideal of a decentralized community of communities constituted from below without need of any centralized monopoly on power. Schmitt resists such conceptions of a self-organizing state, which he seems to associate with the “irrationality” of philosophies of life like Schelling’s and Bergson’s. He recoils from their organismic intuitions of an evolving mutual immanence between the soul, the world, and God. 1 Whitehead offers another hand here, as his process philosophical project is in part an attempt to “rescue [Bergson’s] type of thought from the charge of anti-intellectualism, which rightly or wrongly has been associated with it” (1929, xii). Schmitt is unwilling to relinquish the idea of the sovereign state as the ultimate guarantor of law and order. He zeros in on the Scholastic concept of the “substantial form” of law, a concept he thinks neo-Kantians misunderstand because of their focus on the subjective transcendental deduction of formal categories. “The legal idea cannot realize itself, it needs a particular organization and form before it can be translated into reality [i.e., by the application of a legal thought to a factual situation]” (1934, 28). My colloquial translation for what Schmitt means is that law can only be concretely applied by a soul, the substantial form of a person. Schmitt argues that Kelsen contradicts himself by claiming that a critically deduced subjective concept of form could nonetheless objectively unify the legal order through an impersonal act of judgment (1934, 29). This attempt to remove the personal dimension neglects the evident fact that no legal idea says anything about who should apply it (1934, 31). A legal judgment, in other words, is impossible without a personal element. Schmitt thus turns to Thomas Hobbes’ Leviathan (1651), the classic text in decisionist political theory. Hobbes writes: “autoritas, non veritas, facit 1 See also Schmitt’s Political Romanticism (1986). Schmitt presumably also rejected the organically differentiating conception of society put forward by his anarchic esoteric Christian contemporary, Rudolf Steiner. Steiner’s “social threefolding” movement emerged in the aftermath of the first world war, proposing a differentiation between political/legal, cultural/spiritual, and economic domains guided by the values of equality, freedom, and solidarity, respectively. See Segall, The Urgency of Social Threefolding in a World Still at War With Itself. 6 legem”/ “authority, not truth, makes the law” (quoted in Schmitt 1934, 33). On Schmitt’s reading, Hobbes advances an argument definitively linking decisionism with personalism, rejecting the rationalist attempt to substitute “an abstractly valid order for a concrete sovereignty of the state.” Despite the natural-scientific bent of his thinking, Hobbes realized the legal form could only be located in a concrete decision emanating from a particular personal authority. Schmitt: “What matters for the reality of legal life is who decides. … It does not have the a priori emptiness of the transcendental form because it arises precisely from the juristically concrete” (1934, 34). Schmitt then annunciates perhaps the most influential line in any of his books: “All significant concepts of the modern theory of the state are secularized theological concepts,” both for reasons of historical development and because of their systematic structure (1934, 36). In Process & Reality, Whitehead adds that the analogy between God concepts and political concepts operates also in the reverse direction: When the Western world accepted Christianity, Caesar conquered; and the received text of Western theology was edited by his lawyers. …The Church gave unto God the attributes which belonged exclusively to Caesar. (1929, 342) While Schmitt argues upon the basis of a transfer from theology to the theory of the state, Whitehead shows that it is equally valid to see a transfer from the theory of state to theology, such that the omnipotent lawgiver became the omnipotent God “fashioned in the image of an imperial ruler.” This tragic idolatry, whose violent shadow looms over so much of Western Asiatic and European history, obscures the novel spiritual significance of the life and death of Jesus, who does not at all fit the images of the ruling Caesar, ruthless moralist, or unmoved mover. Rather, the God-image of Jesus as poetic lurer rather than petty ruler reveals a God who dwells upon the tender elements in the world, which slowly and in quietness operate by love; and it finds purpose in the present immediacy of a kingdom not of this world. Love neither rules, nor is it unmoved; also it is a little oblivious as to morals. (1929, 343) While Schmitt unveils the self-contradictions of liberalism, he fails to see the log in his own eye (Matt 7:3; Luke 6:41): how can he, allegedly a Catholic Christian, theologically define politics as the means by which we distinguish friends from enemies when Jesus calls upon his followers to: “love your enemies” (Matt 5:44)? Further, as Whitehead insists, the “Gospel of Force” is selfdefeating because by baring cooperation it stunts social life: “Every organism requires an environment of friends, partly to shield it from violent changes, and partly to supply it with its wants” (1925, 206). Schmitt’s reactionary regression to an idolatrous image of God and solipsist conception of political sovereignty is where the process theological intervention shows its potential. Whitehead urges philosophers to secularize the concept of God’s function in the world (1929, 207). In contrast to the Schmittian approach to secularization, whereby an omnipotent interventionist 7 God’s creatio ex nihilo2 of the cosmos is translated into to the sovereign decider’s capacity to both establish and rupture at will any rationalized system of law, Whitehead’s schema of secularization reads the history of Christian empire as a great betrayal of the teachings of Jesus. Whitehead’s cosmology is a panentheistic protest against the image of God as totalitarian dictator: “God is not to be treated as an exception to all metaphysical principles, invoked to save their collapse. He is their chief exemplification” (1929, 343). In Keller’s words: What Whitehead’s deity exemplifies is the creative process in which anything actual exists only as an interdependent activity of becoming. … Each actuality, divine included, is a process of embodiment contracting in itself the entangled materializations of the universe. … [Divine agency] does not coerce, command, or hack its way into the creature [but] lures from inside a within in which we all, pan, always together, ‘live, and move, and have our being’ (Acts 17:28). (2018, 138)

Segall (excerpt)