Carl Schmitt and the

Frankfurt School*

Ellen Kennedy

"Karl Marx may have discovered profit, but I discovered/>o/#tca/ profit." Carl
Schmitt's only half-joking remark plays with a persistent problem for political
theory since Hegel — the often perplexing similarity of ideological positions on
the left and the right. German intellectual history in this century presents an
unusually complicated example of such "convergence" in the reception of
Schmitt's work by the Frankfurt School.
The controversy surrounding Schmitt is not so much about the quality and
depth of his work as about its political consequences. An uncomfortable ques-
tion for intellectual history in general, die case of Schmitt is most problematic
for the German left. In contrast to their Italian comrades, who borrow
unabashedly from him, die German left mentions Schmitt's name gingerly if at
all.1 According to a view of Schmitt that began to take shape widi his defense of
die Preussenschlag2 in 1932 and froze into place widi his Nazi collaboration after

* An earlier version of this article appeared in Geschichte und Gesellschaft, 1986.

1. See G. Duso, ed., La politica oltre lo stato: Carl Schmitt (Venezia: Arsenale Coopera-
tive, 1981). For a useful bibliography of recent work in Italian on Schmitt, see
Alessandro Campi, "Sulla Fortuna Italiana di Carl Schmitt," La Nottola, n. 3, 1984, pp.
55-78. Two major books on Schmitt have appeared: P.P. Portinaro, La crisi deUojus
publicum europaeum. Saggio su Carl Schmitt (Milano: Edizioni di Comunita, 1982) and C.
Bon- vecchio, Decisionismo. La dottrinepolitica di Carl Schmitt (Milano: Edizioni UNICOPI,
1984). On the German reception of Schmitt after WWI, see the "Epilogue" in Joseph W.
Bendersky, Carl Schmitt: Theorist for the Reich, (Princeton University Press: Princeton, N J .
1983) and Ellen Kennedy, "Carl Schmitt in the West-German Perspective," West Europe-
an Politics (1984), No. 7, pp. 120-127.
2. Onjuly 20, 1932 Reichschancellor Franz von Papen seized control of the Prussian
government and police force, appealing to the President's authority in Art 48 of the
Weimar Constitution to take "emergency" measures for the restoration of "peace and
order." The Social Democratic government challenged the "state-coup" effected by the
Reich under Papen's government. In the trial before the German Supreme Court at
Leipzig, Schmitt defended the Reich against Prussia. He argued that Prussia should not
take independent action against radical parties of die left or right and diat only the Presi-
dent of the Reich had die authority to do so. Schmitt's argument for "presidential pow-
er" at Leipzig drew on his interpretation of Art. 48 as containing "commissarial dictator-
ship" and on the view of the office of President under the Weimar Constitution as a
"neutral power" which Schmitt had developed in Der Hitter der Verfassung. Given the so-
cial and politica] force diat stood behind Papen's government — diey were later to bring
Hider to power using the same "neutral" presidential authority now invoked,
purportedly to save Germany from civil war, the claim that die President acted neutrally
in this case was a sophistry. The Supreme Court rendered a "Solomonic" verdict, decid-

37
38 ELLEN KENNEDY

1933, Schmitt played the role in German history first as defender of reaction
and theorist of authoritarianism, then as Kronjurist of the totalitarian state. Con-
sequently, his popularity with writers on the other side of Weimar's political
spectrum has largely been forgotten. Despite Habermas' puzzlement at "the
powerful influence of Carl Schmitt even on the left,"3 the contemporary influ-
ence of Schmitt's anti-liberalism is obscured by his reputation as a "fascist"
thinker.
But the lineages of Schmitt's influence are not so straightforward. Haber-
mas' attention to Schmitt and Schmitt's influence on an earlier generation of
the Frankfurt School produces a more complicated picture. A reception of
Schmitt's diought can be traced in the work of Habermas and Walter Benjamin
and Otto Kirchheimer before him. However, none of these shared Schmitt's
political goals or values. A common aversion to liberalism and skepticism
about liberal democracy drew mem and omers to Schmitt's political and legal
theory, but this does not say much about the character of the reception or its
consequences, especially where the divergence of values is so apparent. How-
ever, if attention is shifted away from the principal values which distinguish
Schmitt from the Frankfurt School, another perspective opens up. Although
the editors of a recent English collection find the origins of Critical Theory in "a
series of ideas which emerged in Germany during the 1920s and 1930s," the
vast literature on the Frankfurt School has scarcely attempted to trace its semin-
al ideas beyond Adorno and Horkheimer. 4 Lack of attention to Weimar de-
bates concerning the state and politics is a glaring omission in the extensive de-
bate on the origins of Critical Theory. Misunderstandings of that theory itself
has been the result.
The following discussion addresses both these issues: the reception of
Schmitt's ideas by Frankfurt School theorists such as Benjamin, Kirchheimer,
and Habermas, and Schmitt's attitude toward liberal institutions. Second, it
will attempt to dissolve a paradox about Schmitt's reception that prevents ana-

ing that the Reich had no right to remove the Prussian government but was entitled to
appoint a Reich commissioner for Prussia.
3. Jurgen Habermas, "Psychischer Thermidor und die Wiedergeburt der re-
bellischen Subjektivitat," Habermas, Philosophisch-politische Profile (Suhrkamp Verlag:
Frankfurt a.M., 1984), p. 334.
4. David Held and John B. Thompson, Habermas: Critical Debates (Macmillan Pub-
lishers, London: 1982), p. 2. The best work on Schmitt and the German left has been
produced by Volker Neumann and Alfons Sdllner. See Volker Neumann: "Ver-
fassungstheorien politischer Antipoden: Otto Kirchheimer und Carl Schmitt," Kritische
Justiz (1981), no. 14, pp. 235-254; "Kompromiss oder Entscheidung?: Zur Rezeption
der Theorie Carl Schmitts in den Weimarer Arbeiten Franz L. Neumanns," Joachim
Perels, ed., Recht, Demokratie und Kapitalismus: Aktualitdt und Probleme der Theorie Franz L
Neumanns (Nomos Verlagsgesellschaft, 1984), pp. 65-78; "Carl Schmitt und die Linke,"
Die Zeit, no. 28 (July 8,1983), p. 32. See Alfons Sollner, "Leftist Students of the Conserva-
tive Revolution: Neumann, Kirchheimer and Marcuse," in Telos 61 (Fall 1984), pp. 55-
70. See also Wolfgang Jager, Offentlichkeit und Parlamentarismus: Eine Kritik an Jurgen
Habermas (Verlag W. Kohlhammer: Stuttgart, 1973).
 SCHMITTANDTHEFRANKFURTSCHOOL 39

lysis of its implications — a paradox Habermas presents as essentially political.

What did some of the most prominent of Germany's leading leftist social critics
hope to find in the work of a man who, more than any other German intellectu-
al with the possible exception of Heidegger, has been held accountable for the
ideological destruction of the Weimar Republic? The answer may be found in
the adoption by Kirchheimer and Habermas and, to a lesser extent, Benjamin,
of a particular logic.

liberalism vs. Democracy: Schmitt

Leftist theory is anti-liberal. But the most cogent and coherent critique of liberal
institutions in diis century was developed by Schmitt. Like much of German
opposition to liberalism, Schmitt's critique was fundamentally metaphysical
and cultural.5 In essays written before and during WWI (Schattenrisse, 1913;
Theodor Daubler's "Nordlicht," 1916; "Die Buribunken," 1918) he questioned
bourgeois values and tastes and challenged the liberal belief in progress and
technology. Political Romanticism (1919) was a bridge to his later works on politics
and law. His cultural criticism turned into a critique of reason that identified
the goals of German liberalism with what Schmitt called "political romanti-
cism." The bourgeois attitude he had satirized in earlier works was trans-
formed through the figure of Adam Muller into "occasio"; Romanticism was
"subjectified occasionalism." When Schmitt came to analyze liberal parlia-
mentarism he concluded that the Romantics' central activity — "endless con-
versation" (ewige Gesprache) — found expression in the liberal bourgeoisie's
habit of avoiding decision through discussion.6
The bourgeoisie as creator of liberalism did not appear as a political class in
Schmitt's thinking until Political Theology (1922), and then under the influence of
such counter-revolutionary thinkers as Louis Bonald, Joseph de Maistre and
Juan Donoso Cortes. Cortes' view of the liberal bourgeoisie as indecisive was
especially important in shaping Schmitt's view of liberalism, as were Lorenz
von Stein's analyses of the incompetence of French liberals in 1848 and the de-
cay of French political life during the liberal period.7 Although Schmitt's expe-
riences with the administration of martial law during WWI brought the prob-
lems of dictatorship to his attention, die "Foreward" to the first edition of Die
Diktatur indicates that Schmitt first realized its contemporary significance for

5. On this tradition see Fritz Stern, The Politics ofCultural Despair: A Study in the Rise of
German Ideology (Doubleday: New York, 1961).
6. Carl Schmitt (pseud., Johannes Negelius, Mox Doctor), Schattenrisse (Ski-
macheten Verlag: Berlin, 1918); Theodor Daubler's "Nordlicht": Drei Studien uber die Elemente,
den Geist und die Aktualitdt des Werkes (Georg Muller Verlag: Munich, 1916); "Die
Buribunken," Summa 4,1918, pp. 89-106. References in this paragraph to Adam Muller
and "occasio" are from Schmitt, Politische Romantik (Duncker & Humblot: Berlin, 1982),
especially pp. 22-26 and 115-152. Cf. Schmitt, The Crisis ofParliamentary Democracy (1923)'
Trans, by Ellen Kennedy, (The MIT Press: Cambridge, Mass: 1985), p. 46 and 33-50. '
7. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (1922),
Trans, by George Schwab, (The MIT Press: Cambridge, Mass., 1985).
40 ELLEN KENNEDY

the state in reading Kautsky's Terrorism and Communism (1919), and in the context
of the Marxist debate that ensued. But Schmitt's Diktatur, although subtided,
"From the Beginnings of the Modern Idea of Sovereignty to the Proletarian
Class Struggle," ends with die beginnings of the proletarian class struggle.8
This class struggle posed the most immediate challenge to die liberal state; its
theorists had developed die most powerful critique of bourgeois dieories of law
and dictatorship. They argued diat dictatorship need not contradia democracy
and diat a Marxist dictatorship destroys bodi die bourgeoisie and liberalism.
Schmitt concluded diat liberalism contradicts democracy because, unlike the
Leninist dieory of democracy, liberal democracy denies diat dictatorship can
be a means to an end and a legitimate form of die state. Schmitt argued further
that liberal ideas and institutions form neidier a practical nor a principled limi-
tation on a nation's democratic power to decide its constitution. There was evi-
dence in die contemporary history of Germany and Europe generally diat
democratic constitutions were not necessarily liberal, but it was only after die
1917 October Revolution that Schmitt defined a constitution as a "collective
decision about die kind and form of political unity." Lenin's claim that die dic-
tatorship of die proletariat is true democracy helped shape die notion of a con-
tradiction between liberalism and democracy that is crucial to Schmitt's analy-
sis of parliamentarism. In The Crisis of Parliamentary Democracy Schmitt argued
diat Marx had transformed the bourgeiosie from a symbol of literary spite into
a fact of world-historical significance.9 The dictatorship of die proletariat could
decide; die liberal bourgeoisie could not.10
Schmitt's starting point — law and the state — incorporated a transcendental
intention. Legal positivism had ignored the "ultimate quesitions" of political
audiority: state power and legitimacy. The modern crisis of legitimacy began
with Descartes. Widi die collapse of die old metaphysic centered on a tran-
scendent God, a dualism appeared in modern philosophy between external
and internal, being and feeling, nature and spirit, subject and object, etc.,
which had far-reaching consequences for political life. Widiout a transcendent
God, the critical question in political philosophy became "who would take His
8. Carl Schmitt, Die Diktatur: Von den Anfangen des modemen Souverdnitdtsgedankens bis
turnproletarischen Klassenkampf (Duncker & Humblot: Berlin, 1978).
9. Schmitt, Parliamentary Democracy, op. cit., pp. 51-64.
10. Ball had argued that the relation of Schmitt's Political Romanticism to his Political
Theology can be compared to the relation between Kant's Critique ofPure Reason and his Cri-
tique ofPractical Reason. Not only is Political Theology expressly tied to the conclusions of Po-
litical Romanticism, it is also concerned with the concept of sovereignty. The relation be-
tween the two volumes can be seen in their concentration on the meaning of decision:
the romantic chooses not to decide on issues but rather to make a philosophy of the irra-
tional out of indecision. Cf. Hugo Ball, "Carl Schmitt's PolitischeTheologie," originally
published in Hochland 21, 1924, pp. 261-286; now reprinted in Jacob Taubes, ed., Der
Furst dieser Welt: Carl Schmitt und die Folgen (Wilhelm Fink/Ferdinand Schoningh Verlag:
Munich, 1983), p. 104. See also Ellen Kennedy, "Political Expressionism: The Meta-
physical and Theological Origins of Carl Schmitt's The Concept of the Political," inj. Reed
ed., Oxford German Studies (Oxford University Press: Oxford, 1987).
 SCHMITTAND THE FRANKFURT SCHOOL 41

place as the highest and most certain reality and thus serve as a point of
legitimation in historical reality?" In Schmitt's view there were only two candi-
dates — either the "community" or "history." In modern political philosophy
these were the ultimate sources of progressive or conservative legitimacy."
The importance of "decision" in Schmitt's work stems from this problem.
"Decision" is the means to close the gap opened up by modern philosophy be-
tween idea and reality. His definition of sovereignty in Political Theology ("Sover-
eign is he who decides on the state of exception"12) generates a practical criteri-
on. Sovereignty rests not on a monopoly of force — here Schmitt's view differs
from Hobbes' — but on the sovereign's "monopoly of decision"; sovereign de-
cisions mediate between right and power and implement justice. The dilemma
of modern jurisprudence in Schmitt's thinking is a result of its place between
theology and technology; the tension can only be resolved by a concrete sci-
ence. So understood, jurisprudence holds the door open to transcendent truth
which alone can give meaning to history.13
Schmitt's cultural critique is the source of his negative critique of modern so-
ciety and politics; his philosophical intention is the source of his positive con-
ception of the state in terms of a theory of truth. Two distinctive features of
Schmitt's account of the Weimar Republic have remained formal parts of a dis-
tinctive German critique of liberalism. First, he constructed a "classical" model
of liberal institutions and then measured dieir contemporary counterparts
against it. This method was used in his book on parliamentarism and in his
constitutional theory, Verfassungslehre (1928). The Crisis ofParliamentary Democracy
shows this most clearly. After oudining the scope of liberal theory and defining
parliamentary government in terms of die principles of discussion, publicity
and the public sphere, he concludes mat parliament as an existing institution is
in decline and its principles no longer credible. He makes a similar argument in
Legalitat und Legitimitdt (1932), the difference being Schmitt's explicit conclusion
diat the decay of liberal institutions from dieir own principles destroys their
claim to legitimacy.14
A second feature of Schmitt's argument distinguishes it from both German
legal thought and Marxist critiques of liberalism. German legal meory ignored
politics or (in Schmitt's view) incorporated political values into a supposedly
neutral jurisprudence, whereas he tried to make constitutional law and juris-
prudence aware of the political reality in which and widi which they operated.15
Marxists offered a social critique but no meory of the state. Marx dealt widi die
political origin of law and the class origin of die state, but did not try to develop
11. Schmitt, Political Romanticism, op.tit.,p. 103.
12. Schmitt, Political Theology, op.tit.,pp. 5f.
13. Ibid., chap. 1. Cf also Carl Schmitt, "Die Lage der europaischen Rechts-
wissenschaft," in VerfassungsrecktlicheAufsdtzeausdenJahren 1924-1954. Materialien zu einer
Verfassungslehre (Duncker & Humblot: Berlin, 1958), pp. 386-429.
14. Carl Schmitt, Legalitat und Legitimitdt (Duncker & Humblot: Munich & Leipzig,
1932).
15. Cf. Schmitt, 1927 Foreword to Die Diktatur, op.tit.,pp. ix-x.
42 ELLEN KENNEDY

a science of law and politics that analyzed the liberal state under the complicat-
ed conditions of 20th century capitalism. European Marxists attempting to de-
velop a Marxist theory of die state in the 1920s, when a communist movement
actually held state power in Russia, became increasingly conscious of this gap in
radical theory.16
Schmitt's work analyzed die contradictions in liberal democracy — the starting
point of every radical challenge to representative democracy and liberal political
instructions since the French Revolution — in terms of a theory of die state.
Schmitt agreed that liberalism destroys democracy and democracy destroys
liberalism. His development of diis position into a theory of die state and liberal
institutions captured the attention of some in the Frankfurt School, who trans-
lated it into leftist political terms. The core of Schmitt's argument can be summa-
rized as follows: (1) The bourgeosie is frivolous and indecisive. It follows diat (a)
liberal democracy is a bourgeois political form dependent on compromise, (b)
compromise widiin diat system is tactically or explicitly redefined as "phoney" or
"formal," (c) liberal constitutions are "indecisive" political arrangements which
never substantially resolve the material claims of equality. (2) Democracy, "die
identity of die rulers and the ruled," challenges die legitimacy of liberal govern-
ment (majority rule, parliamentary discussion, and the public order). (3) Liberal
democracy is inseparable from die institutions of die bourgeois constitutional
state, die functional and normative guarantor of liberal society. The making of law
(parliament), as well as its interpretation and administration (die courts and state
bureaucracy), further divide die democratic ideal and liberal reality. They diereby
contradict democratic legitimacy dirough die "neutralization" and "forma-
lization" of politics. (4) Legality and legitimacy are not identical, as liberal dieory
maintains, but two distinct and even contradictory concepts. In addition to legal
and procedural sources of legitimacy diere are at least three odiers: ratione materiae
(the material claims of justice); ratione supremitatis (plebiscitary legitimacy); and
ratione necessitous (administrative orders in times of emergency or exception).

The Aesthetic Critique of liberalism and Compromise: Benjamin

Like Donoso Cortes, Schmitt thought that liberalism is only possible during
unpolitical interludes — periods of politically sunny weather, so to speak." For
Schmitt, die liberal position was notjust an accident of history but a metaphysi-
cal consequence. Its everlasting hope is diat decisive batdes can be transformed
into parliamentary debates, suspending decisions in everlasting discussion.
Parliament is dius die paramount invention of the liberal bourgeoisie, die nec-
essary institutionalization of its values and goals. But like Marx, Schmitt saw in

16. Cf. Max Adler, Die Staatsauffassung des Marxismus: Ein Beitrag zur Unterscheidung von
sozwlogischer und juristischer Methode (1922), reprinted by Wissenschaftliche Buchge-
sellschaft (Darmstadt: 1964). For a long discussion of Schmitt's Die Diktatur, whose main
categories (commissariat and sovereign dictatorship) are positively appropriated, see
pp. 193 ff.
17. Schmitt, Political Theology, op. tit., pp. 61 f.
 SCHMITTAND THE FRANKFURT SCHOOL 43

the class character of parliamentary democracy the seeds of decay. Once liber-
alism triumphed in the representation of the people in parliament, those
classes which had been allied with the bourgeoisie against the monarchy would
in turn struggle against the domination of the bourgeoisie. Being essentially
apolitical, the bourgeoisie will be unable to respond to this challenge. It will dis-
cuss, while others decide against parliamentary democracy and liberalism.
Walter Benjamin came to similar conclusions earlier. In a youthful essay
"Das Leben der Studenten" (1915), he criticized the "banal philosophy of life"
in German universities as a contradiction of the spirit. His attack on bourgeois
life equates bourgeois values with the neutralization of danger, and hence of
the spiritual center of life, science and eros. He saw a student's few years of free-
dom before family and professional life begin — "this whole irrational period
of waiting for a position and marriage" — as a playful, pseudo-romantic waste
of time.18 It inculcates the same frivolous superficiality which Schmitt also saw
in liberalism.
After WWI and the German Revolution, Benjamin developed this critique of
bourgeois values into a critique of bourgeois institutions. In 1921 he published
a critique of violence ("Kritik der Gewalt"), meant as part of a larger study of
politics. Written under the influence of Sorel's Reflections on Violence (1912),
which Benjamin read at the urging of Ernst Bloch and Hugo Ball, he used an
emergency situation (here a revolutionary general strike) to reveal the essence
of politics.19 Benjamin's argument parallels Schmitt's argument in Political The-
ology. The exception (Ausnahme) is a possibility which exposes bom the essence
of politics and the ultimate structure of sovereignty. His critique of liberal
parliamentarism owes more to Erich Unger and Anatole France than to
Schmitt in its conception of compromise as corruption. But die agreement widi
Schmitt's views is nevertheless striking.20 Benjamin argued mat parliament had
forgotten the origins of its authority and lacked the sense of law-giving force
that it represents, and declined into a "pathetic spectacle" incapable of reach-
ing decisions worthy of its democratic power.21 The decay of mis ideal in the ac-
tual practice of parliamentary institutions had finally driven as many away from
liberal democracy as this ideal had drawn mem to it before WWI. Benjamin's

18. Walter Benjamin, "Das Leben der Studenten" in Gesammelte Schriften, eds. Rolf
Tiedemannand Hermann Schweppenhauser (Suhrkamp Verlag; Frankfurt a.M., 1974),
Vol. II/l, pp. 75-87.
19. Walter Benjamin, "Kritik der Gewalt," Gesammelte Schriften 11/1. op.tit.,pp. 179-
203. On Benjamin's friendship with Bloch and Ball, see Gershom Scholem, Walter
Benjamin: Die Geschichte einer Freundschaft (Suhrkamp Verlag: Frankfurt a.M., 1975), pp.
100 ff.
20. Erich Unger, Politik und Metaphysik (Verlag David: Berlin, 1921). Benjamin wrote
to Scholem that this was "The most important work on politics of this age." See Walter
Benjamin, Briefe, Gershom Scholem and Theodor Adorno, eds. (Suhrkamp Verlag:
Frankfurt a.M. 1966), p. 252. Benjamin seems to have known Anatole France's Le lys
rouge (1894) in Franziska Grafin zu Revendow's German translation, Die rote Lilie (1919),
cf. Benjamin's Gesammelte Schriften, op. tit., II/3, p. 946.
21. Benjamin, "Kritik der Gewalt," Gesammelte Schriften, op. tit., II/l, pp. 190-191.
44 ELLEN KENNEDY

essays, however, were not directly influenced by Schmitt. But Benjamin's The
Origin of German Tragic Drama (1928) contains a long passage dealing with
Schmitt's theory of sovereignty in Political Theology.
Benjamin expressed his indebtedness to Schmitt in a letter: "In the next few
days you will receive from die publishers a copy of my book, The Origin of German
Tragic Drama. Widi diese lines I want not only to announce it, but also to express
my pleasure mat I am able, at Mr. Albert Salomon's suggestion, to send it to
you. You will very quickly see how much the book's description of the 17 th cen-
tury theory of sovereignty owes to you. Perhaps I might be allowed to say in ad-
dition that I found confirmation for my research mediod in philosophy and the
history of an in the philosophy of state expressed in your later works, above all
Die Diktatur. If you are of the same mind after reading my book, die purpose of
my sending it will have been fulfilled."22
Benjamin continued to admire Schmitt's work long after he had turned away
from die mystical conservatism of the Youth Movement and after he had met
Bertolt Brecht. Benjamin's eclecticism drew not only on Schmitt, but among
others on Stefan George, Ludwig Klages and Johan Jakob Bachofen. For
Benjamin's literary executors, however, his admiration of Schmitt was (along
with his admiration for Brecht) problematic. Adorno edited out all references
to Schmitt when The Origin ofGerman Tragic Drama appeared in die first collection

22. Benjamin, GesammeUe Schriften, op.tit.,1/3, p. 887. Tiedemann and Schweppen-

hauser seem as perplexed by this letter and Benjamin's citations from Schmitt as
Scholem, whom they quote: "At least in one case, Benjamin's careful study of a reaction-
ary thinker seems to have remained important long after he had committed himself to
Marxism. In the Trauerspiel book... the fascist jurist Carl Schmitt's Political Theology is fre-
quendy but rather casually cited." The editors remark that Benjamin's "thoroughly af-
firmative use of [Schmitt] citations indicates a more than passing [interest)" As further
evidence they mention Benjamin's Lebenslauf{ 1928), wherein he states his interest in the
Trauerspiel book as an extension of Schmitt's analysis of political forms into a general
analogy of appearances. Cf. Benjamin, GesammeUe Schriften., op.tit.,1/3, p. 886. See also Carl
Schmitt, Hamlet oder Hekuba: Der Einbruch der Zeit in das Spiel, (Eugen Diedrichs Verlag:
Cologne, 1956); especially on Benjamin's Trauerspiel, see "fiber den barbarischen
Charakter des Shakespearschen Dramas," pp. 62-67. Schmitt's reply to Benjamin's let-
ter has not survived. But his second appendix to Hamlet oder Hekuba might well be re-
garded as Schmitt's answer. Commenting on Benjamin's reference to his definition of
sovereignty, Schmitt writes: "It seems to me ... that [he] underestimates the difference
between the English insularity and the European continental situation and thus also be-
tween English drama and 17 th-century German baroque tragic drama." Schmitt argues
further that this distinction is essential to the interpretation of Hamlet, a work which pre-
sumably cannot be understood in terms of the categories "renaissance" or "baroque"
because it appeared in the first stage of die century-long period of civil war and revolu-
tion in England that began widi the [defeat of die Spanish] Armada (1588) and ended
with the restoration of the monarchy (1688). A new concept of the state and a new politi-
cal order emerged from die religious wars in Europe; in political philosophy, this devel-
opment began with Hobbes and ended with Hegel. Schmitt argues that the difference
between an age which brought forth Hamlet and die age of German tragic drama is that
between "the barbaric" and "the political" (pp. 64-65).
 SCHMITTANDTHEFMNKFURTSCHOOL 45

of Benjamin's works.23 In the Benjamin correspondence Adorno edited with

Gershom Scholem, neidier the above-quoted letter nor any due as to
Benjamin's admiration for Schmitt appear.
The affinity of Benjamin's and Schmitt's views of liberalism and parlia-
mentarism and Benjamin's admiration for Schmitt's Political Theology might
seem insignificant in die history of the Frankfurt School, however embarrassing
they obviously were for Adorno. But such cannot be said of the odier instances
of Schmitt's reception in Critical Theory. According to Jay's history of die Insti-
tute, the Frankfurt School "refused to develop a discrete political theory" either
at home or in exile.24 Be that as it may, Jay discreedy overlooks the deeper prob-
lem of Schmitt's influence on the two men who, after joining die Institute in
New York, became "die political theorists of Critical Theory" — Franz Neu-
mann and Otto Kirchheimer.

The Critique of Majority Rule and ofthe Constitutional State: Neumann and Kirchheimer
Bodi Neumann and Kirchheimer took part in Schmitt's seminar on constitu-
tional law at the Handels-Hochschule in Berlin in 1930-31 during die period of
intense crisis in Weimar's parliamentary institutions. The reason for this crisis
was antagonistic pluralism, which repeatedly hindered the formation of stable
political coalitions. In particular, die divergences between die Social Democrats
and die German People's Party were too wide to provide a firm basis for die So-
cial Democratic government of Herman Miiller, which resigned on March 27,
1930. The following day, President Hindenburg appointed Heinrich Briining
chancellor and his cabinet proceeded to rule dirough die emergency provi-
sions of Article 48 of the Weimar Constitution. Since Briining's "emergency"
powers came direcdy from Hindenburg, his cabinet could remain in power
only so long as die President was prepared to support his policies, which he did
until die spring of 1932. From die beginning, however, Briining's cabinet had
no parliamentary basis in die Reichstag. The Social Democrats pursued a poli-
cy of toleration or passive acceptance aimed at preventing a successful combi-
nation of anti-democratic forces on die left and right (die Communist and Nazi
parties) which would have intensified die political and constitutional crisis dur-
ing deepening economic chaos. Schmitt's Berlin seminar focused on the ten-
sion between die Weimar Constitution's formal (legal and legislative) character-

23. Benjamin, Schrifien, op. cit.

24. Martin Jay, The Dialectical Imagination: A History of the Frankfurt School and the Institute
of Social Research, 1923-1950 (Litde, Brown and Company: Boston-Toronto, 1973). Jay
comments: "Even widi the introduction of political scientists such as Franz Neumann
and Otto Kirchheimer into the Institut, there was litde impetus for die development of
an autonomous dieory of politics" (p. 118). Only at the end of the 1930s did Friedrich
Pollock's analyses suggest die "primacy of politics" under the Nazis. But, according to
Jay, the Frankfurt School "refused to develop a discrete political theory" (p. 155). See
also Michael Wilson, Das Institut fur Sozialforschung und seine Faschismusanalysen (Campus
Verlag: Frankfurt a.M., 1982) and die review by Gerhard Brandt, "Warum versagt die
Kritische Theorie?" in Leviathan 2 (1983), pp. 151-156.
46 ELLEN KENNEDY

istics and its substance (what Montesquieu called the "spirit" of die laws, or, in
Schmitt's terminology, die Constitution's principle of legitimacy). In die next
two years he published Der Hiiter der Verfassung (1931) and Legalitat und Legitimitat
(1932). Both built on die arguments of Schmitt's The Concept ofthe Political and the
Verfassungslehre, and on his analysis of specific provisions in die Weimar Consti-
tution, notably diose dealing widi presidential audiority, die dissolution of par-
liament and, most importandy, die character of "basic rights" and dieir rela-
tion to die rest of die Constitution. The work of Neumann and Kirchheimer
during diose years followed Schmitt's focus.
Franz Neumann came to Berlin in 1928 — die year Schmitt left Bonn for a
new post at die Handels-Hochschule — and was active from die very beginning
in a legal practice specializing in labor legislation. His ties to Social-Democratic
trade-union lawyers (among diem Otto Kahn-Freund, Ernst Fraenkel and
Goetz Briefs) were close, and he continued to pursue the academic and practi-
cal-political interests he had developed as Hugo Sinzheimer's assistant in
Frankfurt (1923-27). In Berlin he shared an office widi Fraenkel and lectured at
die Hochschule for Politik, an institution founded after WWI on die model of
die London School of Economics and die Ecole Normale in Paris. Neumann
still found time to take part in Schmitt's seminar, where he gave a paper during
die winter semester 1930 on "Public and Private Law in Labor Law." Neu-
mann's participation in Schmitt's seminar afforded him die opportunity, as
Sollner has remarked, to study "die agony of die Weimer Republic at its critical
point, die conjunction of die labor movement and democracy."25
Neumann's analysis applied Schmitt's concepts to die specific problems of
labor law and, more broadly, to die political crisis of democracy in Germany.
This is particularly dear in two articles he published during 1930-31 — exacdy
during die period when he took part in Schmitt's Berlin seminar — "The Social
Significance of Basic Rights in die Weimar Constitution" and "Concerning die
Presuppositions and die Concept of Law in an Economic Constitution"26 Util-
izing Schmitt's dieory of institutions and legal dogmatics, Neumann studied
economic democracy in his analysis of the place of trade unions in die Weimar
constitutional system: Koalitionsfreiheit und Reichsverfassung: Die Stellungder Gewerk-
schaften im Verfassungssystem, (1932). His basic question was whedier "freedom"
in die liberal-capitalist sense could be joined widi economic democracy.
Neumann held diat trade unions in late Weimar were committed to democ-
ratizing economic institutions (public and private), thus achieving a more equal
distribution of goods and social power, while preserving private property
25. Alfons Sollner, "Franz L. Neumann: Skizzen zu einer intellektuellen und
politischen Biographie," in Franz L. Neumann, Wirtschaft, Staat und Demokratie: Aufsatze
1930-1954, Alfons Sollner, ed. (Suhrkamp Verlag: Frankfurt a.M., 1978), p. 11. Informa-
tion on Neumann's participation in Schmitt's Berlin seminar is taken from an
unpublished letter from Neumann to Schmitt dated November 21,1930 (Carl Schmitt,
Nachlass, Hauptstaatsarchiv, Diisseldorf, RW265-339).
26. Both articles originally appeared in Die Arbeit and are reprinted in Neumann,
Wirtschaft, Staat und Demokratie, op. cit., pp. 57-75 and 76-102.
 SCHMITTAND THE FRANKFURT SCHOOL 47

rights. Relying on Schmitt's definition of the political in terms of "friend-enemy"

groupings, Neumann argued that the fundamental "political" relation in late
Weimar was capital and labor. After reading Schmitt's Legalitat und Legitimitat
(twice!) Neumann wrote to Schmitt in September 1932: "I agree completely
with you in the critical part of your book. I too believe that parliamentary de-
mocracy cannot function any longer according to the principle of an equal
chance.(...) I see it as my task in the coming period to establish the truth of your
opinion economically and sociologically. If one takes die position that the fun-
damental political contradiction in Germany today is the economic contradic-
tion, that the decisive friend-enemy grouping in Germany is that of labor and
property, men it is clear that parliamentary government is no longer possible in
me face of such a political contradition."27
Kirchheimer's ties to Schmitt were old and deep. He had studied with
Schmitt in Bonn, where in 1927-28 he took part in Schmitt's seminar on "The
Concept of the Political." While Neumann, as a Social Democrat, was commit-
ted to a reformist politics, Kirchheimer, as a left radical, was hostile to repre-
sentative institutions. While Neumann was committed to the Republic and
reformist politics, Kirchheimer's work at this time demonstrated a hostility to
Weimar and its liberal institutions foreign to Neumann's work, but similar to
Schmitt's own attitudes. Kirchheimer, far more dian Neumann, was Schmitt's
legitimate heir and die transmitter of his ideas within Critical Theory. He was
the left's most important "Schmittian."
The similarities between Kirchheimer's and Schmitt's analyses have led
Sollner to label Kirchheimer's work "Left-Schmittianism."28 Aldiough wary of
a "totalitarianism" diat equates bodi left and right, Sollner's study points to the
debt Kirchheimer's exceptionally sharp analysis of Weimar's crisis owed to
Marx and Schmitt. Kirchheimer not only employed the mediod "so typical for
Carl Schmitt" diat juridical evidence and changes in die structure of law con-
tain direct political content, he also used "die same metaphors and theorems as
his teacher" in clarifying die Weimar crisis. Like Schmitt, he emphasized die
presence of conflicting principles of legitimation in the Weimar Constitution;
like Schmitt, he identified the ultimate cause of Weimar's collapse as its lack of
decision.
Sollner sees in Kirchheimer's use of Schmitt an "extremely sharp and differ-
entiated instrument," the key to die Republic's complicated constitutional
crisis, ultimately social in origin, but expressed in political terms. Sollner agrees
widi John Herz and Eric Hula diat Kirchheimer's "Schmittianism" is "a cer-
tain version of Marxism" because it focuses on die contradiction between die
idea of die constitutional state and democracy.29 Kirchheimer's development

27. Letter from Neumann to Schmitt (2 September 1932), published in Rainer Erd,
ed.. Reform und Resignation: Gesprache iiber Franz L Neumann (Suhrkamp Verlag: Frankfurt
a.M., 1985), p. 79.
28. Sollner, "Left Students of the Conservative Revolution," op. cit.
29. John Herz and Erich Hula, "Otto Kirchheimer: An Introduction to his Life and
48 ELLEN KENNEDY

of this perspective relies on the distinction of "true" or direct democracy and

"formal" or representative democracy, and on the definition of Weimar's Con-
stitution as a bourgeois constitutional state without a political decision.
Kirchheimer took up Schmitt's distinction between true and formal democ-
racy in his 1928 dissertation, Zur Staatslehre des Sozialismus und des Bolschewismus.
Schmitt's definition of true or "direct" democracy as "the identity of the rulers
and the ruled" was classically simple.30 "Formal" or representative democracy
compromises the fundamental claim of a democratic state. In the case of
Weimar, its constitutional claim as a democracy was contradicted by the consti-
tutional reality of many of its provisions.31 For Schmitt, the crucial contradic-
tion between "mass democracy" and "parliamentarism" was between the
claim of equality and the reality of inequality. True democracy requires homo-
geneity; liberal democracy assumes a plurality of interests.32 Kirchheimer
adopted this argument but shifted its emphasis away from Schmitt's idealist to
a materialist definition of homogeneity. Without social and economic homoge-
neity, Kirchheimer argued, democracy would become a source of conflict. Like
Schmitt, he regarded the institutional provisions of liberal democracy as secon-
dary and ineffective. In contrast to true democracy, with its substantial consen-
sus of values, the hallmark of formal democracy is "the absence of values which
could be confronted by counter-values, unless one considers such absence of
values a value in itself." Liberal democracy is a transitory governmental form in
which class struggle takes place.33
The way a shared formal argument can lead to substantially different con-
clusions can be seen in how Schmitt and Kirchheimer approach property rights
in the Weimar Constitution. (Art. 153 safeguarded property in its first section;
Work," in Politics, Law and Social Change: Selected Essays of Otto Kirchheimer (Columbia Uni-
versity Press: New York, 1969), pp. ix-xxxviii, see especially x-xi.
30. Schmitt, Parliamentary Democracy, op. tit., p. 21. See also Schmitt, Verfassungslehre,
op.tit.,p. 223; "Legalitatund Legitimist," Verfassungsrechtliche Aufsdtze,op.tit.,p. 295; and
Volksenscheid und Volksbegehren: Ein Beitrag zurAuslegung der Weimarer Verfassung und zur Lehre
von der unmittelbaren Demokratie (Walter De Gruyter & Co.: Berlin. 1927).
31. See E. R. Huber, "Verfassung und Verfassungswirklichkeitbei Carl Schmitt," in
Huber, Bewahrung und Wandlung: Studien zurdeutschen Staatstheorie und Verfassungsgeschichte
(Duncker & Humblot: Berlin, 1975), pp. 18-36. Huber's essay reviewed Schmitt's Der
Hitter der Verfassung and originally appeared in Bldtternfur Deutsche Philosophie 5 (1931-32),
pp. 302-315. See Wilhelm Hennis, "Verfassung und Verfassungswirklichkeit: Ein
deutsches Problem," in Hennis, Die missverstandene Demokratie (Herder Verlag: Freiburg,
1973), pp. 53-57.
32. The most convincing refutation of Schmitt and most fruitful theoretical basis for
understanding representative democracy is still Hermann Heller, "Politische Demo-
kratie und soziale Homogenitat" (1928), Gesammelte Schriften (A.W. SijthofF: Leiden,
1971), Vol. II, pp. 421-433.
33. Otto Kirchheimer, "Zur Staatslehre des Sozialismus und Bolschewismus" in
Zeitschrift fur Politik 17 (1928), pp. 593-611; reprinted in Kirchheimer, Von der Weimarer
Republik zum Faschismus: Die Auflbsung der demokratischen Rechtsordnung (Suhrkamp Verlag:
Frankfurt a.M., 1976), pp. 32-57; translated into English as "The Socialist and Bolshevik
Theory of the State," in Politics, Law and Social Change, op. tit., pp. 3-21.
 SCHMITTAND THE FRANKFURT SCHOOL 49

bound expropriation to the common good in its second; and declared property
a "duty" in its third section.) For both, Weimar pluralism was a concrete exam-
ple of the Constitution's "indecision," the result of an historical compromise at
the Weimar National Assembly. Although they agreed that property rights
were a crucial constitutional-political problem for the Republic, they differed
on how to interpret the Constitution's intention.34 For Kirchheimer, the legal
institution of private property contradicted the notion of "social constraint";
for Schmitt, Art. 153 left this question open. Neumann tried to reconcile both
claims in his concept of economic democracy. However, all agreed that the
contemporary controversy was over the limits of state intervention. For Schmitt
the definition of property rights "has the practical purpose of determining a
measure of protection against the legislator."35 For Kirchheimer, it was a dis-
pute about the limits of appropriation and the indecision of the Weimar Con-
stitution concerning how far the state would go in creating socialist equality.
Schmitt and Kirchheimer drew similar conclusions regarding the legitimacy
of the core institutions of liberal government. Without a substantial equality of
its citizens, which would in turn make shared values possible, democratic deci-
sions lose their legitimacy. In his dissertation, Kirchheimer asked: "How is gov-
ernment possible at all under such conditions?"; "who decides on the wielders
of power?" The liberal answer — majority rule — failed because majority rule
also requires justification in the absence of commonly shared values.36 In a sys-
tem of liberal pluralism, majority rule means the suppression of socially and po-
litically weaker members of the economy. Commenting on Kirchheimer's
"Weimar — and What Then?," Schmitt argued that the rights and duties
specified in the constitution's second half were the product of a "shallow formal
compromise," of "the constitution's agnosticism." For Kirchheimer, it was "a
constitution without a decision." It did not resolve but postponed the basic
conflict between "Western capitalism and Eastern Communism. The indeci-
sive status quo of the second part of the constitution was preserved by the insti-
tutional structure of the first part."
Schmitt, Neumann and Kirchheimer agreed on the fundamental "indeci-
sion" of the Weimar Constitution with respect to the conflict of capital and la-
bor. Each developed, however, distinctive interpretations of that conflict. While
Schmitt saw its resolution as a precondition for the survival of the Republic,
unlike Neumann and Kirchheimer, he rejected socialist and communist solu-
tions. Schmitt focused on the specifically political and constitutional dimensions
34. Cf. Schmitt, "Freiheitsrechte und institutionelle Garantien" (1931), in Ver-
fassungsrechtliche Aufsdtze, op. tit., pp. 140-173; and Kirchheimer, "Reichsgericht und
Enteignung: Reichsverfassungswidrigkeitdes preusischen Fluchdiniengesetzes" (1930),
in Von der Weimarer Republik, op. tit., pp. 77-90.
35. Schmitt, Ibid, p. 161.
36. Kirchheimer, "Zur Staatslehre des Sozialismus und Bolschewismus," Von der
Weimarer Republik, op. cit., p p . 34-35. Cf. Schmitt, Parliamentary Democracy, op. tit., p p . 13-
14. See also Schmitt's reply to Richard Thoma (in the Foreword to Parliamentary Democra-
cy) in which formal democracy is contrasted with a substantial democratic order.
50 ELLENKENNEDY

of the crisis and developed the legal theory Kirchheimer found so useful.
Kirchheimer's polemical position celebrated the constitution's apparent fail-
ure. As a good Marxist, he saw the crisis of capitalism in terms of a developing rev-
olutionary situation: the collapse of liberal democracy would serve, at the very
least, the interests of the working class. The elimination of liberal institutions
was a precondition for true democracy. Neumann was more skeptical of such
ideologies. As he saw it, the "central task of a socialist state theory [was] to devel-
op the positive social content of the second part of the Weimar Constitution."
Thus Neumann writes "When Kirchheimer's tide asks 'Weimar — And What
Then?,' the answer can only be: First of all Weimar."37
Kirchheimer agreed with Schmitt that liberal democracy and the bourgeois
constitutional state were essentially neutral and pluralist. The dilemma of the
constitutional state resulted from liberalism's inadequate concept of the politi-
cal. Once die bourgeoisie won their rights from the crown and the aristocracy,
die idea of the rule of law had been neutralized. Also implied in this transfor-
mation was a neutralization of die political through law and the "legalization" of
social relations.38 Both Schmitt and Kirchheimer rejected the liberal identification
of legitimacy widi legality. For Kirchheimer, the legality of the constitutional state
did not provide it with a legitimate claim to audiority, because it was still an instru-
ment of class interest. For Schmitt, the liberal state was direatened by its own
pluralism: it could not distinguish between political competitors by its own cri-
terion of legitimacy; dius, it accepted all of them according to the legal "rules of
die game" and was left undefended by its own neutrality. The legitimacy of die
constitution eroded from within, because its decisions were formal.39
Kirchheimer saw two alternatives to Weimar's "legal machinery." The first
was die Social Democrat's course of political reform. Schmitt had argued that
parliamentarism was a system of rational balance which rejected force as "die
37. Neumann, "Die soziale Bedeutung der Grundrechte in der Weimarer Ver-
fassung," in Wirtschaft, Staat und Demokratie, op. tit., p. 75.
38. Kirchheimer writes: "In all fields of endeavor things are turned into law; all factual
decisions involving actual power relations are avoided, whatever the issue: the dictatorial
powers of the Reich President, the settlement of labor disputes, or anything else. Every-
thing is juridically formalized and thereby neutralized. And now begins the epoch of the
bourgeois constitutional state — a state which consists exclusively in its laws" ("Zur
Staatslehre der Sozialismus und Bolschewismus," Von der Weimarer RepubUk, op. cit., p. 36).
Schmitt writes: "The bourgeois constitutional state is in general characterized by its basis in
the rights of the individual and the principle of the division of powers. Thus the freedom of
the individual is conceived as unlimited in principle .... Controls and controlling instances
are built in everywhere and juridically secured." "Der biirgerliche Rechtsstaat," in
Abendland, 7, 1928, pp. 201-203); "A state constitutes a constitutional state only if all its
activities without exception are considered as the sum of precisely-defined competencies"
(ibid. p. 131); "The completed ideal of the bourgeois constitutional state culminates in the
general legalization of the whole life of the state" (ibid. p. 133).
39. In addition to works already cited, see Kirchheimer, "Verfassungswirklichkeit
und politische Zukunftder Arbeiterklasse," in Der Klassenkampf, n. 3 (1929), pp. 455-459,
reprinted in Von der Weimarer Republik, op. tit., p. 69-76; see also Schmitt, "Die konkrete
Verfassungslage der Gegenwart" in Der Hitter der Verfassung, op. tit., pp. 71-131.
 SCHMITTAND THE FRANKFURT SCHOOL 5/

way of beasts" (Locke) and affirmed the rule of law. The intellectual foundation
of the bourgeois constitutional state's neutrality was opposed, Schmitt argued,
by the irrational myths of the new anti-liberal movements: Fascism and Bolshe-
vism. Kirchheimer accepted Schmitt's analysis and, like his teacher, believed
that contemporary European politics proved how vulnerable liberalism was
because of its neutrality and indecision. "The political myth has the capacity to
bring about an extremely decisive grouping according to political values."40
Compared to political activism of this sort, Social-Democratic reformism could
only be a reflection of liberal neutrality. For the Social Democrats the Weimar
Constitution remained a book of possibilities among which they were unable to
decide, precisely because awareness of the alternatives made them incapable of
deciding for one of them, namely socialism.41
The second alternative was Bolshevism. Lenin ended "the view of the judici-
ary as an independent third force, as an arbiter above contending parties... In-
stead, Lenin's point of view restores the image of the substantive character of
law which in Europe, since the age of liberalism, has tended to disappear and
become totally dissolved into the legal mechanism of formal democracy. Wher-
ever a state exists, be its form intrinsically democratic or dictatorial, legal judge-
ments are rendered in the name of definite value concepts."42
The Soviet Union emerges in Kirchheimer's study as a state in Schmitt's
terms; his examination of Soviet foreign policy uses Schmitt's analysis of the lib-
eral character of the League of Nations. The appearance of the USSR on the in-
ternational scene is that of a lion among sheep. It acts politically by not recog-
nizing liberal neutrality; it understands the structure of peace after 1918 as a
truce between international material interests. Because the League mirrors lib-
eral neutrality, its dilemmas are the same as those of the liberal state. In the ab-
sence of the homogeneity of interests required for a decision, the USSR was
forced to reject both the majority principle in international practice and any
internationally-recognized court which would claim to render binding deci-
sions.43
Luthardt's observation that Kirchheimer developed Marx's Bonapartism
thesis to explain the Briining government is only partly correct.44 Schmitt had

40. Kirchheimer, "Zur Staatslehre des Sozialismus und Bolschewismus," in Von der
WeimarerRepublik, op.tit.,p. 43; Politics. Law and Social Change, op.tit.,p. 5. Cf. Schmitt, Par-
liamentary Democracy, op. tit., pp. 65 ff.
41. Kirchheimer, "Verfassungswirklichkeit und politische Zukunft der Arbeiter-
klasse," in Von der Weimarer Republik, op. tit., see especially the critique of the SPD in the
"Grosse Koalition" as evidence of the absence of "the will to reality" (p. 76).
42. Kirchheimer, "Zur Staatslehre des Sozialismus und Bolschewismus" in Von der
Weimarer Republik, op. tit., p. 47: Politics, Law and Social Change, op. tit., p. 13.
43. Ibid, Kirchheimer refers directly to Schmitt's Der Kemjrage des Volkerbundes,
(Dummler Verlag: Berlin, 1926) and notes that the clausida rebus sic stantibus "completely
dominates Soviet thinking on international law" (ibid. pp. 18 and 48 respectively).
44. Wolfgang Ludiardt, "Bemerkungen zu Otto Kirchheimers Arbeiten bis 1933,"
in Von der Weimarer Republik, op. at., pp. 7-31; see p. 24.
52 ELLENKENNEDY

built Marx's thesis into his own interpretation of liberalism. Kirchheimer fil-
tered Marx's thesis dirough Schmitt's theory of me state; his analysis of political
events in Germany shared Schmitt's scepticism about the bourgeois constitu-
tional state. Majority rule is "bourgeois dictatorship"; the search for a majority,
merely a crass game played out for 5196 of the votes in an election. Equality
before the law, thefirstprinciple of the constitutional state, is afictionand the
instrument of reaction. With only formal democracy the crisis during
Briining's administration could only deepen. The way out, Kirchheimer argued,
lay in a decision for socialist politics. That decision could not be taken by a neu-
tral third party, but would only result from the political in Schmitt's sense of the
concept. Only after Schmitt defended Papen's seizure of the Prussian govern-
ment on July 20, 1932, which replaced the Social Democratic (SPD) cabinet
with a commissarial executive acting in the name of the Reich, did Kirchheimer
criticize his teacher.45 As late as July 1932, both he and Schmitt were interpreting
Germany's growing crisis as legality vs. legitimacy in the state.46 Each offered,
however, a different political interpretation of the so-called "Preussenschlag."
For Kirchheimer, Papen's government and the months of emergency rule de-
stroyed the constitution's legitimacy by its destruction of governmental legality;
die appeal to presidential authority was invalid. Schmitt saw the persistence of
(defunct) parliamentary mediods, including majority rule and the "equal
chance" for all political competitors, as the main threat to Weimar's legitimate
constitutional order.
Sollner's analysis of Kirchheimer tries to show that a supposed contradiction
between democracy and die constitutional state reveals a fundamental differ-
ence between Schmitt and Kirchheimer. While Schmitt saw the presidential
dictatorship of 1932 as confirming his own "fundamental political assump-
tion," Kirchheimer looked for social and political relations which permitted
such a transformation. Their differences were "the different conceptions of
democracy which inform their respective analyses of the constitution." But
emphasis on Schmitt's and Kirchheimer's substantially different political
preferences confuse Sollner's argument and lead him to underestimate die
45. Kirchheimer, "Bermerkungen zu Carl Schmitts 'Legalita't und Legitimist"' in
Archivfiir Sozialwissenschaft und Sozialpolitik, n.68 (1932-33), pp. 457-487; reprinted in Von
der Weimarer Republik, op. cit., pp. 113-150. Kirchheimer accuses Schmitt of fostering con-
stitutional reaction. But the discussion is an odd mixture. He reads Schmitt as placing
too much emphasis on equality and freedom, and too much weight on the liberal no-
tion of freedom as freedom from the state, which presumably led Schmitt to underesti-
mate the social reality of individual freedom and its role in creating the popular will (p.
116). Kirchheimer also asserts that Schmitt's critique of formal democracy is a rejection
of democracy per se (p. 118). It is a curious turnabout, given Kirchheimer's own views
on democracy and particularly in light of his stress on the direct democratic and
plebiscitary elements in Schmitt's work (cf. Verfassungsreaktion, 1932 in Die Gesellschaft,
n. 9, 1932, pp. 415-427; translated into English as "Constitutional Reaction, 1932," in
Politics, Law and Social Change, op. cit., pp. 75-87.
46. Kirchheimer, "Legalitatund Legitimist," inDie Gesellschaft, n.9 (1932), pp. 8-26;
Schmitt, Legalitat und Legimitdt, op. cit.
 SCHMITT ANDTHE FRANKFURTSCHOOL 5J

importance of the methodological unity of their work.

The central notion in Schmitt's critique of the Weimar Constitution is, as
Sollner indicates, "that democracy is not exhausted in the procedures of the
bourgeois constitutional state, but must be the expression of a homogeneous
popular will."47 Kirchheimer certainly differed with Schmittfrom Fall 1932 on-
wards as to the concept of democracy. But when Kirchheimer broke with Schmitt
on this issue, it was a break with his own earlier position. He abandoned his prin-
cipled objections to parliamentary democracy under the impact of Papen's
authoritarianism. Instead of his earlier emphasis on "social homogeneity,"
Kirchheimer now acknowledged that parliamentary democracy ("modern de-
mocracy") "is, after all, the sole form of government which constitutionally
make possible the cooperation or the alternation of different groups at a time of
increasing social or national heterogeneity. By its system of universal, equal,
and secret suffrage, and by its guarantee of political freedom, it alone permits
changes in the social structure to be reflected at the political level."48

liberalism and Fascism: Marcuse and Horkheimer

The resonance of Schmitt's political theory within the Frankfurt School be-
fore 1933 was not limited to Neumann and Kirchheimer. In the Zeitschrift fur
Sozialforschung (1932), Karl Korsch enthusiastically reviewed Schmitt's DerHiiter
der Verfassung, emphasizing precisely the "leftist" themes in Schmitt's work.
Korsch commented on Schmitt's "impressive analysis" of the constitutional sit-
uation and on the accuracy of his description of tendencies within German pol-
itics and society that had led to the decay of parliamentary institutions and the
liberal state. He further agreed with Schmitt's description of parliament as "the
showplace of a pluralistic system": "The strength of [Schmitt's]... theory lies in
its critical analysis of the bourgeois-liberal conception of the state that has pre-
vailed until now, which presumed it possible to superimpose on the existing
pluralism of economic and social interests a neutral state that does not inter-
vene in economic and social matters. Schmitt convincingly describes the
dialectical development in which this liberal state and its parliament has turned
from the showplace of a free and unifying deliberation of free popular repre-
sentatives, from the transformer of party interests into a collective will, into a
showplace of the pluralistic division of organized social powers, into a 'stock ex-

47. Sollner, "Leftist Students of the Conservative Revolution," op. at.

48. Kirchheimer, "Verfassungsreaktion, 1932," Von der Weimarer Republik, op. cit., p.
419; "Constitutional Reaction, 1932," Politics, Law and Social Change, op. cit., p. 80. Accord-
ing to E.R. Huber, Schmitt and Kirchheimer remained on friendly terms throughout
1932, even spending election day, November 6, 1932, together. Huber, at that time
Schmitt's Assistent, remembers walking with the two men through Berlin on the evening
of the poll, both speculating, in an atmosphere of tension caused by the joint call of Na-
zis and Communists for a general strike against the election, on the possibility of revolu-
tion or a Putsch. E.R. Huber, "Carl Schmitt in der Reichskrise der Weimar Endzeit," in
H. Quartisch, ed., Carl Schmitt in den Rechts- und Geisteswissenschaften der 20. Jahrhundert
(Berlin: Dunker & Humblot, forthcoming).
 54 ELLENKENNEDY

change' in which various shares of social powers are traded." 49

Yet, Korsch remained critical of Schmitt's failure to take into account class
and class conflict (in the Marxist sense). In light of the fate of Schmitt's work
after 1933, it is even more significant that Korsch found in Schmitt's analysis of
fascism exacdy the same uncritical attitude so characteristic of the liberal bour-
geoisie widi respect to its constitutional state. In the same issue of the Zeitschrift
in which Korsch's article appeared, Hans Speier favorably reviewed Schmitt's
Concept ofthe Political. "Although Schmitt does not take into account the possibility
of sociological dunking," wrote Speier, "his polemic against liberalism — which,
powerless widi respect to the consideration of totality, has economically and
ediically dissolved political concepts, that is, struggle, into competition and dis-
cussion — belongs to die best sociological heritage: Saint Simon, Comte, Marx
and odiers have certainly given account of those concrete forces which the
friend-enemy grouping actually produce. 50 After 1933 mis demonstratively
positive attitude toward Schmitt changed. Marcuse's article, "The Struggle
Against Liberalism in the Totalitarian View of die State," was a programmatic
declaration against Schmitt's anti-liberalism.51 Hider was already Chancellor
and the Third Reich a constitutional reality. The Institute was shut down and
Marcuse and odier members were in exile. The prospects for a radical leftist cri-
tique in Germany were nil.
Fascism quickly became a central focus of die Institute's research, and for
Kirchheimer, Neumann, Marcuse and Horkheimer, die most fascinating aspect
of Germany's descent into dictatorship was die relation between fascism and
liberalism. In dieir dunking die crux of die dilemma remained die facilitation
of anti-democratic forces dirough liberal values and institutions, above all die
constitutional state. But dieir new analysis developed die opposition of liberalism
and dictatorship, and fascism emerged as a synthesis of liberalism and dictator-
ship. Marcuse's article aimed at revealing diis relation. In so doing, he applied
to fascist dictatorship die same critique of liberalism mat Schmitt and
Kirchheimer had developed widi respect to die Weimar Republic. He not only
argued that internal contradictions forced totalitarianism to assert die existence
of an "existential state of affairs" exempt from rational justification;52 he
identified die source of his argument as Schmitt's friend-enemy category and

49. Karl Korsch, "Carl Schmitt, Der Hiiter der Verfassung," in Zeitschrift fiir
Sonalforschung, Vol. 1 (1932), pp. 204-205.
50. Hans Speier, "Carl Schmitt, Der Begriff des Politischen," Zeitschrift fur Sozial-
forschung, vol. 1 (1932), pp. 203-204. Both Speier's and Korsch's reviews appear under
the heading "Special Sociology," emphasizing the contemporary reading of Schmitt's
works as fundamental to the foundation of social research and a critical theory of state
and society.
51. Herbert Marcuse, "The Struggle Against Liberalism in the Totalitarian View of
the State," in Negations: Essays in Critical Theory, (Beacon Press: Boston, 1968). see also
Jtirgen Habermas. "Die Frankfurter Schule in New York," in Philosophisch-politische Profile,
(Suhrkamp Verlag, Frankfurt a.M., 1984).
52. Jay, The Dialectical Imagination, op. tit., pp. 121-122.
 SCHMITTAND THE FRANKFURT SCHOOL 55

his assertion in The Concept of the Political that war is the ultimate political situa-
tion. As Marcuse read Schmitt: "Predominantly political conditions and rela-
tions are sanctioned here as existential, and within die political dimension it is
die relation to die enemy, or war, diat counts as die simply and absolutely exis-
tential relationship ('die folk and folk membership' have been added as a sec-
ond, equally existential relationship)." Totalitarian regimes put Schmitt's ideas
into practice.
In light of Schmitt's influence on Kirchheimer (and on Benjamin), Marcuse's
analysis was paradoxical. Precisely those aspects of Schmitt's work diat had
already entered into die Frankfurt School — die political analysis of law and die
bourgeois constitutional state, criticism of die 'positivistic' elements of liberal
democracy, the connection between direct democracy and social homogeneity,
and, above all, die criticism of parliamentarism — were now characterized as
"die best description of liberalism from die standpoint of totalitarian state dieo-
ry." In effect, Marcuse's article removed Schmitt as a positive source in die Frank-
furt School during die 1930s and 1940s. Schmitt's collaboration widi die Nazis
consolidated die effect of Marcuse's argument. From 1933 onward, Schmitt's
work stood under a virtual ban for German intellectuals on the left. But the
original paradox remained and is underscored by the Frankfurt School's devel-
opment of a critique of liberalism in diis period. In 1934 Marcuse had asserted
"die inner relationship between liberalist social dieory and die (apparendy so
antiliberal) totalitarian dieory of the state" is revealed in a "liberalist rationalism
mat ends in irrationalism."53 Horkheimer took up diemes from die critique of
liberalism in Weimar and expanded diem into a new perspective on rationalism
and irrationalism in bourgeois society; in so doing he discovered die common
origins of liberalism and totalitarianism.
Schmitt and Kirchheimer argued diat liberal neutralization and formal de-
mocracy did not eliminate political conflict but ultimately intensified it.
Horkheimer extended diis critique of liberalism in a collection of aphorisms he
wrote during die Weimar Republic and published pseudonymously during die
Third Reich: "The true bourgeois has die capacity to look at all diings objectively,
and in postwar Germany mat even extends to revolution. Once he begins to re-
flect objectively about it or, radier, its political preparation, it seems like any
other activity widiin die context of social reality and is judged accordingly."54
Horkheimer extended his critique of liberalism into a critique of its linguistic
foundations in a meditation on reason and self-preservation published private-
ly in 1942 in a book dedicated to die memory of Benjamin. Not only did he re-
ject die pluralism of liberal democracies as ideological, he began to set out die
critique of rationalism in technological society diat became one of die most im-
portant elements in radical diought in die late 1960s. Moreover, he finally ex-
53. Marcuse, "The Struggle Against Liberalism," op. at.
54. Max Horkheimer, Ddmmerung, originally published in 1934 under the pseudo-
nym Heinrich Regius. The edition used here is a photomechanical reproduction pub-
lished in 1968. Cf. the section tided "Nachdenken iiber die Revolution." p. 71.
56 ELLENKENNEDY

plained the Frankfurt School's preoccupation after 1933 with the connection
between liberalism and totalitarianism. The transformation of bourgeois socie-
ty into open dictatorship took place through "technological reason" — "in the
transformation of bourgeois rule the bourgeois continues, despite the fact that
the new order represents a leap into direct domination." 55

Toward a New Liberalism and a New Democracy?: Habermas

What Marcuse's critique began, Schmitt's own collaboration during the
Third Reich completed. It took a new generation of the Frankfurt School,
Jiirgen Habermas, to again find in Schmitt's political theory a source of concepts
for the analysis of the state in industrial society. Habermas is more critical than his
predecessors, but his use of Schmitt is also more paradoxical. Schmitt and
Kirchheimer regarded liberal thought as irretrievably out-dated; Habermas
takes it seriously. In fact, he has attempted to make liberal principles the foun-
dation of a critical moral and political philosophy. The issue is not whether
Habermas and Schmitt share a vision of political good (they clearly do not) but
the formal argument common to both.
H a b e r m a s ' early writings (Student und Politik, 1961; Struklurwandel der Offen-
tlichkeit, 1962) employed a Schmittian critique of liberal thought and institu-
tions: definition of democracy as a substantive identity; criticism of liberal de-
mocracy and its institutions (parties, the state administration, public opinion)
as essentially undemocratic; emphasis on plebiscitary legitimacy as opposed to
legality; and, finally, the construction of a tension between principles and reali-
ty in the liberal constitution. Furthermore, these critical elements were used in
a characteristic fashion — an ideal-typical model of past liberal institutions was
said to generate principles by which present reality can be measured. Since
much of this argument comes from Schmitt's students in the post-1945 period,
as careful attention to Habermas' early texts evidences, it is more submerged
than was the Schmitt-reception in the first generation of the Frankfurt School.
In Habermas' later writings explicit references to Schmitt and his students dis-
appear altogether.
A search for Schmitt's name in Habermas' works available in English will
find only negative references which emphasize the difference between a rational
and discursive agreement on universal moral and political principles, and
Schmitt's authoritarian, irrational emphasis on decision and authority in poli-
tics.56 As long as Schmitt is read as simply reducing questions ofjustice and ethics
55. Horkheimer, "Vernunft und Selbsterhaltung," in Walter Benjamin turn Ge-
ddchtnis, privately published (1942), p. 34.
56. Habermas refers to "the decisionistic legal theory founded by Carl Schmitt"
and identifies Schmitt with a "nihilistic" tradition of philosophy founded by Nietzsche
in Legitimation Crisis, (Beacon Press: Boston, 1975), pp. 98 and 122 respectively. In his in-
troduction to Observations on "The Spiritual Situation of the Age" he refers to "our crit-
ical debates with Carl Schmitt" and to "the specifically German outlook of the young
conservatives — [Ernst] Jiinger, [Gottfried] Benn, [Martin] Heidegger, Carl Schmitt"
and (tantalizingly) suggests that "one must also feel a twinge of regret that the intellectual
 SCHMITTAND THE FRANKFURT SCHOOL 57

to "Who decides?," Habermas' search for universal moral principles in an

"ideal speech situation" must appear completely incompatible with Schmitt's
views. This is how Habermas' later work presents the relation between them.
The characterization depends on denying the metaphysical origins and inten-
tion of Schmitt's political theory. But the discovery of a transcendental truth is
die aim of bodi, and both hold out truth as the criterion of political life.57 It fol-
lows from mis idealistic premise mat the notion of politics as a pragmatic search
for consensus and a sense of die necessity of compromise in democracy will
seem a corruption.
Habermas' analysis of liberal democracy, like Kirchheimer's, depends on
Schmitt's distinction of true and formal democracy. The test cases for his analysis
of democratic participation as a means to achieve a substantial goal of self-reali-
zation, rather than as "a value in itself or a "political fetish," are Weimar and
Bonn. He recognizes, like all the participants in the earlier debate, that democ-
racy is an historical process as well as a theoretical question. The decisive point
for him, as for his predecessors in the Weimar debate, is what is to count as
"democratic"? The argument can be summarized without too much injustice
to the participants as having revolved around substantialist vs. positivistic con-
ceptions. The Weimar substantialists, including Schmitt, argued that empiri-
cism was mistaken to equate democracy with "democratic procedures" and
emphasized freedom and equality as real and necessary aspects of democracy.
The positivists — Habermas righdy singles out Richard Thoma as represent-
ative of this position — stressed the formal and institutional aspects of demo-
cratic constitutions. For Thoma, states widi universal and equal suffrage, in
which institutional provisions conform to the model of western democratic
constitutions, are by definition democratic. He rejected as impractical the
"Rousseauist" theory of democracy as "a self-governing community of all
mature citizens." 58 In modern states, the press and public opinion are
indispensible agents in the formation of die democratic will. As a political pro-
cess, democracy has nodiing to do with ideological principles (i.e., die
Rousseauist conception), despite its ultimate definition as self-government in
line of this generation, one not only bewitched but instructed by Nietzsche, has been
broken" (MIT Press: Cambridge, MA: 1984), pp. 13 and 24 respectively. He also com-
ments that Giinther Maschke, in the 1960s a radical student activist and now the fore-
most "young conservative" of that generation in Germany (and editor of a series of new
publications of Schmitt's works), is only repeating "what students of Schmitt and
[Arnold] Gehlen were already whispering to each other in the early '50s" (p-24).
57. Volker Neumann, "Carl Schmitt: Jurist between Law and Politics" (forthcom-
ing). See also, Neumann, "Kompromiss oder Entscheidung?: Zur Rezeption der
Theorie Carl Schmitts in den Weimarer Arbeiten Franz L. Neumann," in J. Perels, ed.,
Recht, Demokratie und Kapitalismus: Aktualitdt und Probleme der Theorie Franz L Neumanns
(Nomos Verlag: Baden-Baden, 1983), pp. 65-78.
58. Habermas refers to Thoma in the introduction to Student und Politik, oft. at., p.9.
See Richard Thoma, "Der Begriffder modernen Demokratie in seinem Verhaltnis zum
Staatsbergriff,"inM. Paly\,ed.,HauptproblemederSoziologie: Erinnerungsgabefur Max Weber,
(Duncker & Humblot: Munich and Leipzig, 1923), p. 46.
58 ELLENKENNEDY

the substantialist sense. Schmitt pointed out the weaknesses of Thoma's theory
— it could neither expound the structure of democracy as an idea, nor explain
the sociological consequences of modern democratic systems.59 Such was pos-
sible, Schmitt argued, only if Rousseau's assertion that democracy is the identity
of the rulers and the ruled was used as an analytical and normative principle.
Habermas shares this objection to modern definitions of democracy. In
terms of die Weimar debate between substantialists and positivists, he opts for die
former. Against Thoma's interpretation, he argues widi Schmitt diat democracy
demands an identity of die rulers and die ruled.60 This conception of democracy
is not, of course, peculiar to Schmitt; but he did develop its mediodological
importance. Whereas "classical" liberalism enjoyed a genuinely democratic
element, as a constitutional form it was sociologically limited to a period of
bourgeois dominance. In die age of universal suffrage, institutions based on a
specific historical homogeneity of interests must slide into a series of increasingly
intense contradictions, die most important being diat between democratic le-
gitimacy and representative institutions in die liberal constitution. Habermas'
early work used diis insight to criticize "formal" democracy.
In Student und Politik Habermas draws on Ernst Forsdioff s analysis of die de-
velopment of die liberal state into an agent of collective welfare (the satisfaction
of immediate needs); he incorporates Schmitt's argument diat die attendant
structural changes imply a decay of die principles of political organization
which Montesquieu identified as essential features of die constitutional state: 1)
die generality of norms; 2) individual rights; 3) die division of powers to protect
bodi. Forsdioff argued that die welfare state's social and economic functions in-
trude on Montesquieu's (and liberalism's) fundamental assumption diat state
and society are independent spheres. In a direct comment on Forsdioffs argu-
ment, which accepts its definition of liberalism's contemporary dilemma,
Habermas agrees diat, to die extent die state intervenes in society "caring, ad-
ministering, distributing" die first principle of die constitutional state cannot
be maintained.61 Laws aimed at concrete social groups (typical of social welfare
legislation) cannot be general; and even when diese are explicidy conceived as
59. Carl Schmitt, "Der Begriffder modernen Demokratie in seinem Verhaltnis zum
Staatsbegriff," in Archivfiir Sozialwissenschaft und Sozialpolitik (1924), no. 51, pp. 817-823.
60. Habermas, Student und Politik, op. tit., p. 31. Habermas refers here to the "ficti-
tious identification" of a current parliamentary majority with the popular will. His argu-
ment questions the legitimacy of parliamentary representation of the people's will and,
although negatively expressed, his view must logically assume a democratic identity that
is not 'fictitious' but 'true.' "The plebiscitary-democratic identity of a given parliamenta-
ry majority in government and in parliament is in truth a fictitious identification with the
popular will; it is essentially dependent on who controls the force and educational
means to create the popular will by manipulation or demonstration. The parties are the
instruments of will-formation, which is not in the hands of the people but in those who
control the party apparatus."
61. Habermas, Student und Politik, op,tit.,p. 35. Habermas' discussion ("Zur Alterna-
tive der autoritaren oder sozialen Demokratie") is based on Forsthoffs analysis in
Lehrbuchdes Venualtungsrechts (C.H. BeckVerlag: (Munich, 1955).
 SCHMITT AND THE FRANKFURT SCHOOL 59

"orders," such interventions cause the boundaries between "laws" and "or-
ders" established in the dieory of the constitutional state to disappear. As state
and society become intertwined in this way, obligation to the rule of law is
weakened. Individual rights, negatively conceived in liberal theory as limita-
tions on political authority, are transformed into positive claims on the state.
The development erodes the guarantees for individual rights within the con-
stitutional state that Montesquieu assumed would follow from the division of
executive, legislative and judicial powers.
Habermas maintains that this change reveals the contradiction that has always
existed between democracy and the liberal state.62 While the bourgeois constitu-
tional state proclaims the idea of democracy and even institutionalizes it to
some extent, liberal democracy is in reality "a minority democracy on the ba-
sis of a social hierarchy."63 Only when it works as the self-determination of hu-
manity is democracy true democracy; as the product or technical means of a
governmental system, participation is not genuinely democratic. If democracy
and democratic government are taken seriously, the empirical-pragmatic con-
ception reveals itself empty. To understand democracy as the politics of rules
and institutions, rather than as a substantial value, merely repeats the unique
defect of liberalism's historical consciousness.
Habermas' "Schmittianism" here is transparent. As more social initiative
and responsibility accrues to the state, parliament ceases to be the representative
organ conceived in liberal theory and becomes instead an instrument in the new
constitutional system. The people and parliament have lost their purpose.64 The
agents of the new constitutional reality are political parties and organized interest
groups. These act via a new manipulative organization of public opinion to fur-
ther private goals at the cost of, or even by means of publicly declared goals.
Despite die constitutional principle of dieir division, die parties achieve a "real
unification of powers" and diis concert of powerful interests is concealed from
die forum of public discussion in parliament.65 Habermas implies diat such
combinations, even if legal, pose such a powerful contradiction to liberal princi-
ples and democratic substance that diey are illegitimate. Parliamentary politics

62. Habermas writes: "The bourgeois constitutional state assumes the identity of
bourgeois existence and the people. The contradiction: to proclaim the idea of democ-
racy, in a sense to institutionalize it, but in reality to operate a minority democracy on
the basis of a social hierarchy. This is unique to the bourgeois constitutional state (Stu-
dent und Politik, op.tit.,p. 18). This contradiction presumably characterizes participation
in such systems and is typical in parliamentary governments. Habermas takes his histor-
ical description of parliamentary representation and its political meaning from
Schmitt's Verfassungslehre [Student und Politik, op. tit., p. 16, n. 13).
63. Habermas, Student und Politik, op. tit., p. 18.
64. Ibid., p. 51. This assertion comes at the end of Habermas' discussion of the
changed reality of parliamentary democracy; the principles of the bourgeois constitu-
tional state are contradicted by their reality.
65. Habermas, Student und Politik, op. tit., p. 39: "In the party-state, parties establish
an actual unity of powers behind closed doors — a unity which is problematic in relation
to the constitutional principle."
60 ELLENKENNEDY

attempt to neutralize die contradiction between democratic dieory and liberal

reality, but (following Schmitt's argument in the Verfassungslehre) he concludes
with Werner Weber that under contemporary political circumstances parties
formalize social contradictions.66 Ultimately, this formalization leads to the end
of genuine political opposition and to "depoliticization." Despite the develop-
ment of mass political parties, contemporary parliamentary life emphasizes
"the game-like character of parliamentary argument." Structural changes in
political democracy, such as universal suffrage and modern political parties, act
to drive die ideal of democracy even further from die reality of die liberal state:
"This all seems to realize die political principles of die liberal constitutional
state on a mass basis and, on die basis of a competition of organizations, to
guarantee die functioning of parliamentary democracy in its present style; it
seems to have left behind die social convulsions of the bourgeois constitution
dirough class antagonism as a transitory phenomenon now historically overcome
. . . . All this contributes to die objective appearance diat still disguises die old
contradiction which has existed since die early phase of liberalism — between
die constitutionally-institutionalized idea of democracy, on the one hand, and
[democracy] as it is actually practiced, on the other." 67
Habermas agrees widi Schmitt's description of parliament as a place where
decisions already taken are merely registered. Under conditions of modern
democracy, die people and parliament have surrendered dieir functions to a
bureaucracy that is "opaque," "audioritarian and abstract."68 Public opinion
should function in die liberal system as a check on governmental power and
private interest, but it too has declined from its original purpose. This change is
discussed briefly by Habermas in Student und Politik, where he draws on Riidiger
Altmann's analysis to prove that the public sphere (Offentlichkeit) no longer
"exists"; it is created.69 This is the dieme of Strukturwandelder Offentlichkeit (1962),
which takes up the implications of changes in social structures and political
consciousness suggested by Schmitt's The Crisis ofParliamentary Democracy. As in
Schmitt's text, these changes are discussed in terms of dieir deviation from a
classical "structure and function of bourgeois publicity."70 The primary problem
of liberal culture in a mass-democratic age is die increasing sphere and decreasing
autonomy of publicity: "die deliberating parliament as die middle but still also
part of die public, should secure it as such, and for a time actually did so, but

66. Habermas, Student und Politik, op. cit., pp. 26 ff. Commenting on Gerhard
Leibholz's theory of modern democracy, Habermas concludes: "In this way parliament
becomes a place where previously instructed party delegates meet in order to register
decisions already taken. Carl Schmitt had already noticed something of this sort in the
Weimar Republic." (in Parliamentary Democracy, op. cit.).
67. Habermas, Student und Politik, op. cit., p. S3.
68. Ibid., pp. 28 and 51.
69. Ibid., p. 31.
70. Jurgen Habermas, Struhturwandel der Offentlichkeit: Untersuchung zu einer Kategorie
der burgerlichen Gesellschaft, (Luchterhand Verlag: Darmstadt and Neuwied, 1962), p. 8.
 SCHMITTAND THE FRANKFURT SCHOOL 61

does nothing of the sort today."71 For both Schmitt and Habermas, the classical
model of publicity originated in the eighteenth-century notion of an "enlight-
ened" public; its mature formulation can be found in Guizot's Historie des
origines du gouvemement representatif en France (1851). "Rule of public opinion"
(Habermas) or "principles of parliamentarism" (Schmitt) were, according to
Guizot, public discussion, publicity, and a free press. These assured that laws
passed were in accord with truth and the general good; they alone legitimated
die power of parliament.
According to Habermas, these actually worked until a certain point in the
nineteendi century. But with the emergence of "liberalism," bourgeois publicity
as trudi-producing gave way to "common-sense meliorism."72 This decline
was accompanied by economic changes which die constitutional state permitted
and stabilized. Student und Politik treats parliament as one of die contradictions of
die liberal state; Strukturwandel der Offentlichkeit describes how socio-economic
changes worked against die old publicity: culture and discussion were commer-
cialized and die free press became a capital investment. Widi universal suffrage,
diese changes produced a mass public of "cultural consumers" diat displaced
die cultural reason of a reading public. Ultimately, the principles of representative
government were hollowed out: publicity became public managment; die press,
part of a single manipulative system; die public itself, "passive customers."73
If Habermas' debt to Schmitt and his students is explicit in such early works
as Student und Politik and Strukturwandel der Offentlichkeit, it remains implicit in
Legitimation Crisis (1973) and his recent essays on politics in West Germany.
Schmitt's arguments supply die dieoretical elements of Habermas' analysis of
die state in late capitalism. Legitimation problems result from die dilemma of
mass democracy presented in die earlier works: a structural change in publicity,
die key to democratic dieory in Habermas' system, now prevents public partici-
pation in die political system; it has transformed die citizen from die subject
71. Ibid., pp. 244-245. Habermas' description of parliament on these pages draws
on Schmitt's Parliamentary Democracy (cf. Habermas, Strukturwandel der Offentlichkeit, op. tit.,
p. 351, note 69). He repeats the comment (from Student und Politik, op. at., p. 14) that par-
liament has become a place where decisions already taken are merely registered. It is
clear here that Habermas' objection to this change in the function of parliamentary rep-
resentation is connected to his critique of the change in the public sphere as a whole:
"The new status of the representative is no longer characterized by general participation
in a reasoning public" (p. 242). The opposition between an earlier classic period (in
which the representative did play such a role) and present political reality is the crucial
aspect of Habermas' reception ofSchmitt (Strukturwandel der Offentlichkeit, op.tit.,pp. 113
ff., p. 322, n. 43, and p. 125. He quotes the same passage from Guizot that Schmitt uses
to define the function of publicity in parliamentarism, and the note on p. 322 indicates
that Habermas took this aspect of his argument from Schmitt (see Parliamentary Democra-
cy, note 5 on pp. 97 f.). Habermas' description of parliamentary reality (as opposed to its
principles) on p. 244 paraphrases Schmitt (cf. Parliamentary Democracy, op. tit., pp. 51 f.)
and refers to Ernst Friesenhahn, "Parlament und Regierung im modernen Staat,"
Veroffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer (1958), no. 16.
72. Habermas, Strukturwandel der Offentlichkeit, op. tit., p. 160.
73. Ibid., pp. 202, 220 ff. and 233.
62 ELLEN KENNEDY

into an object of public opinion; the purported sovereign, the people, is actual-
ly powerless.74 The legitimation crisis arises from a contradiction between con-
stitutional principles and political reality, from the disintegration of traditional
bases of legitimacy at the moment when new legitimation demands arise. In the
liberal state, the fundamental cause of die legitimation crisis is metapolitical.
Habermas begins and ends his book on legitimation problems of late capi-
talism widi a question about "world-sustaining interpretative systems" based
on dieJudeo-Christian God. If diese now belong "irretrievably to die past," he
asks, "what fulfills the moral-practical task of constituting ego and group-iden-
tity?"75 As it was for Schmitt, diis question concerns the fundamental philo-
sophical problem of the post-Enlightenment and die ultimate intellectual basis
of die system of political audiority in die state and law. If die state and public
power cease to be understood as part of a meaningful order, as diey apparendy
have in die modem period, dien the demands and commands of die state must
appeal to an increasingly fragile basis of respect and consent. Habermas argues
that die modern legitimation crisis is a "motivation-deficit" or a gap between
what die state (and the economic and education systems) requires and what die
sociocultural system can provide.76 like Schmitt, he is doubtful whedier die in-
tellectual foundations of diis system are still credible sources of motivation.
There is nodiing exceptional in die notion diat democratic states require credi-
bility in die eyes of dieir citizens to maintain dieir claim to legitimacy. There is
nodiing new in die perception diat die decline of religious and metaphysical
justifications for die state's audiority poses a political problem. But Habermas,
like Schmitt, projects die criterion of legitimacy from a "classical" model into
contemporary political practice. The intellectual-historical foundations of legit-
imacy in die past have disappeared as real factors in pluralist society; die bour-
geois ideology of legitimacy through the citizen's obligation has become a mere
facade.77
At die beginning of die Weimar Republic, Schmitt's critique of parlia-
mentarism divided institutions and procedures from substance, while his ana-
lysis of die Weimar constitution similarly divided its formal from its substantial
aspects — legality and legitimacy were not identical but separate and even con-
tradictory principles. In the context of parliamentary paralysis after September
1930, he developed a dieory of sovereignty detached from die liberal ideology
of parliamentarism and located Weimar's "democratic sovereignty" in die of-
74. Ibid., pp. 276 and 358, n. 129. While the text relies implicitly on Schmitt's defini-
tion of classical parliamentarism, the note rejects Schmitt's "model of an administrative
state, whose technical conditions of functioning contradict the possibility of democrati-
zation" and criticizes Helmut Schelsky's development of this model in post-war Ger-
man sociology.
75. Habermas, Legitimation Crisis, translated by Thomas McCarthy, (Heinemann,
London: 1976), p. 120.
76. Ibid. Cf. Schmitt, Political Theology and "Das Zeitalter der Neutralisierungen und
Entpolitisierungen" in Der Begriffdes Politischen (1963), op. at., pp. 79-95.
77. Habermas, Legitimation Crisis, op. tit., pp. 79 and 89 ff.
 SCHMITTANDTHE FRANKFURTSCHOOL 63

fice of the popularly-elected Reichsprasident. By contrast with this constitutional

interpretation, Habermas offers a philosophical analysis mixed with references
to the concrete problems of liberal-democratic states. But he too develops a
conception of sovereignty independent of liberal, legal institutions, and anal-
yzes the dilemma of the liberal state as a product of pluralism and polyarchy in
which powerful vested interests in the private sphere confront the public
sphere. Although derived in different ways and conceived in substantially dif-
ferent terms, Habermas also supposes that a hypothetical general will or public
interest is suppressed by private power. For Schmitt, this dilemma might be
characterized as a weak state vs. powerful private interests; in Habermas' work,
it is the dilemma of a weak citizen vs. powerful private interests which intrude
into the sphere of public authority.
These distinctions follow from different conceptions of the public good and
political values. But in some of Habermas' most recent work he justifies a
plebiscitary conception of democracy in terms of a conflict between legality and
legitimacy. In an article on civil disobedience as a test case for the democratic
constitutional state, he tries to recover from its "pale, intimidated counte-
nance" the perspective of the "presumptive sovereign" as an active participant in
the public sphere. These are actions, Habermas contends, which are "illegal in
their form, although they are carried out with appeal to the recognized grounds
of legitimacy in our democratic-constitutional order,78 i.e., in West Germany.
Schmitt is mentioned only as a source for the "authoritarian legalism"
Habermas rejects. But the structure of his argument — its concepts for the ana-
lysis of sovereignty — repeats Schmitt's own. Warning of the "nonsense" that
has been pursued with the concepts "legality" and "legitimacy," Habermas'
discussion of civil disobedience still insists that these are the terms of the de-
bate. By titling the following section "The Guardian of Legitimacy", he con-
nects (however subtly) his argument to the Weimar debate in general and
Schmitt's "Guardian of the Constitution" in particular.79 Schmitt's definitions
are applied in terms of plebiscitary democracy; but Habermas avoids an insti-
tutional specification of "the sovereign." The principled issue of civil disobe-
dience focuses on those cases in which illegal acts are justified by a moral per-
spective. In Habermas' view, their context is not the extreme case of systematic
injustice but the "normal" case of the bourgeois constitutional state, "if the
representative constitution fails." Schmitt's touchstone for sovereignty — the
"exception" — is Habermas' as well; as for Schmitt, the exception reveals the
character of the normal order. In the exception the sovereign has access to an or-
der beyond the purely legal, to the substance of legitimacy. Habermas places the
decision about the exception in liberal democracy explicitly in the hands of the
"national sovereign," whereas Schmitt locates the exercise of sovereignty in an in-
stitution that acts for the democratic sovereign (and thus reintroduces an element

78. Habermas. DieNeue Unubersichilkhkeit, (Suhrkamp Verlag: Frankfurt a.M., 1958),

p. 79.
79. Habermas, "Ziviler Ungehorsam," in Die Neue Unubersichtlichkeit, op. cit., p. 86.
64 ELLEN KENNEDY

of indirect or representative democracy into the political system) or leaves the

sovereign unspecified. Habermas writes: "The democratic constitutional state is
not realized in its legal order. For the exceptional case (Ausnahmefall) in which the
representative constitution foils, it places its legality at the disposal of those who
can protect its legitimacy. In such a case it cannot, logically, be made dependent
on the determinations of constitutional organs (...). The democratic state is cer-
tainly neutral with respect to the beliefs of its citizens protected by fundamental
rights; but it is in no sense neutral with respect to those intersubjectively recog-
nized moral bases of legality and legal obligation. The conscience of the citizen
extends also to those diings that concern everyone. For this reason, there can be
no instance that could suspend the dispute about compliance widi, or the reali-
zation of the legitimating constitutional principles. This is even more true the
more deeply a state must intervene in the vital foundations of society."80

Conclusion
In every reception of Schmitt's ideas discussed here, there is a gap between
the political values and goals espoused and the formal argument advanced on
their behalf. In none, however, is the gap so wide as in Habermas' work. None
of the others can be considered so "liberal," nor did they devote so much intel-
lectual effort to the construction of a system of rational and discursive social re-
lations. Thus, the parallels between Habermas' argument and Schmitt's own
are all the more paradoxical. Given Habermas' structural and textual reliance
on Schmitt, and the serious differences between them on political values, does
the use of Schmitt's formal argument against liberalism affect the normative
choices available in Habermas' system of thought?
If we take only two precursors to Habermas in the tradition of Critical Theo-
ry discussed here — Benjamin and Kirchheimer — it is relatively easy to show
that the formal elements of anti-liberalism and, in Kirchheimer's case, a sophis-
ticated political and legal theory, steered them away from liberal democracy
and tended to blind both to the Weimar Republic's developmental possibilities
in the direction of a more socially just society. By identifying the core institu-
tions of liberal government in Germany with a closed system of bourgeois in-
terests and dius as contradictions of democracy, Kirchheimer underestimated
their potential. The concepts he adopted from Schmitt strengthened his case
against the Republic. But his classical Marxist perspectives led him to reject the
Republic's imperfect democracy in favor of an ideally homogeneous society
and direct democracy.
Eschewing Kirchheimer's emphasis on the material identity of class, Haber-
mas proposes something quite different — agreement on principles of ethical
conduct arrived at through rational and peaceful discussion. He also intends a
different political outcome than Schmitt: the realization of democracy as an
educative process in which citizens participate as free, equal, self-determining
and sovereign entities; a democratic discourse that "recovers" those rational
80. Ibid., p. 90.
 SCHMITTAND THE FRANKFURT SCHOOL 65

principles on which democracy rests. But Habermas also denies legitimacy to

representative institutions, and majority rule in certain circumstances. Like
Kirchheimer, Habermas is led by the structure of his argument to underesti-
mate liberal institutions and even posits them against democratic and ethical
ideals. Richard Lowenthal understands Habermas' argument as a rejection of
existing democracy based on universal suffrage — an argument that neither
understands what has made reform possible nor takes seriously the power of
the ballot box in Western societies. Habermas' dismissal of "merely formal de-
mocracy" places him within a German tradition of direct democratic thought
and reveals an attitude typical of mat tradition — the reluctance to accept social
heterogeneity and value pluralism. His ideal is not just a democracy without
parties, it is also, as Lowenthal states, "a democracy which has never existed in
complex societies and for which there has never been a concrete design."81
Just how Utopian is Habermas' model of die communicative ethic in politics
(he says it would be like the discussion in an ideal seminar82) becomes obvious
when applied to any political dispute, be it lead-free automobiles in die Euro-
pean Community or the national claims of Jews and Arabs on the West Bank.
The model is misleading, not because there is a power-political distortion on
the other side (Habermas' polar opposite of Enlightenment) but because there
really are value differences in modern society, there really are historically-legiti-
mate claims in competition with each other. Authentic political reason cannot
simply ignore these differences and claims in favor of die "ideal speech situa-
tion." Habermas' democracy could only be realized in a homogeneous com-
munity. His conception of practical questions widi die "capacity for trudi" as-

81. Richard Lowenthal, "Gesellschaftliche Transformation und demokratische

Legitimitat" in Wolfgang Schulenberg, ed., Reform in der Demokratie, (Hoffmann und
Campe Verlag: Hamburg, 1976), pp. 25-45. See expecially pp. 26-27 and 33 ff.
82. Ibid., p. 37. Cf. Habermas, ProtestbewegungundHochschulreform (Suhrkamp Verlag:
Frankfurt a.M, 1968), pp. 244-248. Steven Lukes criticizes Habermas on similar
grounds. In his essay, "Of Gods and Demons," Lukes notes that Critical Theory claims
nothing less than to pose the central questions in political philosophy — Which laws are
just? What are the limits of legitimate authority? — but that Habermas fails to provide
"action-guiding principles" (Thompson and Held, eds., Habermas: Critical Debates, op. at.,
p. 142). Lukes considers the three levels on which the principle of universalization re-
ferred to in Habermas' model of discourse might be cast and concludes that Habermas
assumes the highest stage of universalization: "But the problem with the third stage of
universalization is that the test is so severe that it is not clear that any norms or rules will
pass, and it is certainly very far from guaranteed that unconstrained discourse between
the parties will yield action-guiding principles of this sort." Lukes considers the alterna-
tive solutions to this dilemma — Rawl's theoretical description of "the circumstances of
justice" and Mackie's search for principles "which represent an acceptable compromise
between die different actual points of view" — but concludes that "Habermas appears
to reject a basic assumption shared by both these approaches, namely that morality is a
means of solving the problem posed by the conflicts generated by limited resources and
limited sympathies, with a view to securing mutually-beneficial co-operation" (Ibid., p.
143). Lukes righdy points out mat Habermas' model of communicative ethics rejects
value pluralism.
66 ELLEN KENNEDY

sumes that value pluralism is inherently undesirable.83 The result is a refusal to

consider die actual alternatives and to work out a conception of democracy that
would do justice to their complexity.
A second normative consequence of the argument against liberalism has
been alluded to above, namely, reality is posited against die ideal; legality
against legitimacy. This is die key to Schmitt's radicalism, as many of his
contemporaries and later commentators recognized. Habermas' works em-
ployed diis strategy in exploring die gap between die fact of existing institutions
and their "intellectual-historical" foundations: compared widi die classical
model of publicity, die reality of parliamentary debate and politics must appear
"not only as an empirical distortion, but as a pure state of corruption." 84 From
this starting point, the procedures of liberal democracy must lose dieir binding
power, widi die logical result diat the citizen is pushed to question his political
obligation. Under historically specific conditions, diis, in turn, becomes a ques-
tion of resistance or revolt. This question is left open in Legitimation Crisis but by
the early 1980s Habermas had taken a clearer position on political obligation in
liberal democracy: "The value of majority rule must be measured according to
die idea of how far die decision has departed from die ideal results of a discur-
sively-aimed agreement or a presumably just compromise." Rules are played
out against ideals, legality against legitimacy, and formal political decisions tak-
en by representative institutions based on majority rule neidier reflect die dem-
ocratic identity of die bourgeois constitutional state nor exhaust its substance.
Democratic potential remains a direct, unmediated substance in political life.85
The rejection of parliamentary and representative democracy in favor of va-
rious models of direct democracy has been a characteristic position on both die
political right and left in modern Germany. As sharp as the logical clarity of die
form of political argument described here has been, this definition of democra-
cy leads to crucially false estimates of the possibilities and difficulties of modern
government. The renewal of diis argument shows how important die Weimar
period was and is as a storehouse of German political diought.86 It also proves
how important Schmitt's work has been in shaping German ideas of democra-
cy. In keeping diis tradition of German political thought alive, no small part has
been played by the dieorists of the Frankfurt School.

83. Lukes, "Of Gods and Demons," in Habermas: Critical Debates, op. cit. This point is
also made by Agnes Heller from a different perspective ("Habermas and Marxism," in
Habermas: Critical Debates, op. cit., p p . 21-41).
84. Jiirgen Fijalkowski, Die Wendung zum Filhrerstaat: Ideologische Komponenten in der
politischen Philosophie Carl Schmitts, (Westdeutscher Verlag: Cologne, 1958), p. 4.
85. Ibid. Also in "Ziviler U n g e h o r s a m " in Die Neue Uniibersichtlichkeit, op. cit., where
reference is made to the appeal by "the lawyers of authoritarian legalism" to Schmitt's
theory.
86. See Claus Offe and Bernd Guggenberger, eds., An den Grenzen der Mehr-
heitsdemokratie: Politik und Soziologie der Mehrheitsregel (Westdeutscher Verlag: Opladen,
1984).