* When I penned this volume’s first edition over twenty years ago, the Carl Schmitt “bug” had just hit the Anglophone intellectual world, with many political theorists, jurists, and others suddenly paying close attention to Schmitt’s ideas and their possible significance. In part by highlighting the ways in which Schmitt’s theoretical agenda opened the door to his disastrous flirtation with National Socialism, I hoped to push back against the emerging Schmitt renaissance.
By any standard, those efforts were a failure: Schmitt is now a household name in the English-speaking academic world, and his work is more popular than ever. Elsewhere as well (e.g., China) Schmitt has since garnered a significant collection of disciples. The worldwide rise of right-wing populism means that he is very much in the news, with many far-right intellectuals energetically advising would-be rightist demagogues about Schmitt’s lessons.
* Schmitt has no close relations in legal theory in the United States today, and no influential American legal theory even remotely resembles Schmitt’s heinous Nazi-era ideas.
* Schmitt very early endorsed ideas about legal indeterminacy that clearly took him well beyond traditional notions of the
limited determinacy of law. In some contrast to contemporary North American defenders of both the underdeterminacy and radical indeterminacy theses, however, he believed that the critique of formalist jurisprudence necessarily pointed the way toward an assault on liberal models of deliberative parliamentarism (chapter 2), constitutionalism (chapter 3), the state/society divide
(chapter 4), and international law (chapter 6). Schmitt exploited what he took to be the Achilles’ heel of liberalism—formalist jurisprudence—in order to discredit liberalism altogether. Pace liberalism, legal decision making inevitably rests on untrammeled discretion: the inevitability of a constitutive “pure decision” at the basis of every legal act demonstrates the bankruptcy of
“normativistic” liberalism as a whole. From Schmitt’s perspective, the enigma of legal indeterminacy provided an effective intellectual weapon in the right-wing authoritarian assault on liberal democracy.
* Schmitt’s influence on some important voices within postwar American political and legal theory has been widely documented.34 Yet the story of Schmitt’s impact on postwar political thought in the United States remains incomplete. Take Joseph A. Schumpeter’s enormously influential democratic theory (chapter 7) or Friedrich A. Hayek’s free-market critique of the welfare state (chapter 8): each was shaped by a more or less hidden debate with Carl Schmitt. Neither was a principled “Schmittian” in any sense of the term, and each opposed Schmitt’s own political preferences and significant parts of his theory. Nevertheless, each author was ultimately influenced by Schmitt: Schmitt was more than a parochial “German thinker” lacking in significance
for American political and legal thought.
* Following the 9/11 terrorist attacks on the World Trade Center and Pentagon, and many subsequent attacks elsewhere, legal scholars quickly turned to Schmitt’s ideas about emergency powers to begin rethinking how liberal states might best respond. Even more recently, Schmitt’s ideas have loomed large in thinking about the 2008 financial and other “global” crises. Schmitt’s theory of emergency powers, more than any other intellectual contribution he made, has ignited a massive political and legal debate; we need to pay careful attention to it.