Cardozo Law Review, Vol. 16, p. 1, 1994
19 Pages Posted: 22 Aug 2008
Date Written: August, 21 2008
Carl Schmitt claimed that the fundamental distinction of politics is the distinction between friend and enemy. That distinction, he said, has to be put on a substantive basis, which, in the era of the nation state, he supposed must amount to an idea of the homogeneity of the people. Since liberal democracy is opposed to this kind of substance, Schmitt argued that liberalism cannot make the distinction between friend and enemy. It thus cannot defend itself against its enemies. It is no wonder that he remains the leading theorist of fascism.
Some of Schmitt's followers say that Schmitt, by alerting us to the problems of liberal democracy, teaches us how to save it from its enemies. I fully agree with those recent responses to Schmitt observing that a project so driven by the urge to destroy liberal democracy is hardly likely to be harnessed in its defense. Nevertheless, I think that much can be learned from Schmitt once we understand why he would not have thought it possible that liberalism could adjust itself, in light of his critique. This paper addresses these issues by exploring a paradox latent in Schmitt's work
The paradox is as follows: Schmitt believes that by exposing contradictions in Kelsen's doctrine of legal positivism; he simultaneously exposes the contradictory nature of liberalism. Throughout this process he appeals, perhaps above all, to the authority of Thomas Hobbes; yet it appears that he regards the train of thought set in motion by Hobbes's publication of Leviathan as not only having actually ended in the establishment of the Rechtsstaat, but as having had to end there.
I argue here that, once the elements of this puzzle are unravelled, we have a much better understanding not only of Schmitt's thought, but of his critique of liberalism as well. We are then in a position to, assess whether Schmitt speaks to contemporary debates in political and legal theory.
Suggested Citation: Suggested Citation
Dyzenhaus, David, 'Now the Machine Runs Itself': Carl Schmiit on Hobbes and Kelsen (August, 21 2008). Cardozo Law Review, Vol. 16, p. 1, 1994. Available at SSRN: https://ssrn.com/abstract=1244505