KALYVAS 1999 ¿Who's Afraid of Carl Schmitt. Review Essay

Philosophy & Social Criticism
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Who's afraid of Carl Schmitt?

Andreas Kalyvas
Philosophy Social Criticism 1999 25: 87
DOI: 10.1177/0191453799025005004
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04 Kalyvas (jl/d) 12/7/99 9:34 am Page 87
Andreas Kalyvas
Review essay
Who’s afraid of Carl Schmitt?
John McCormick, Carl Schmitt’s Critique of Liberalism: Against

Politics as Technology (Cambridge: Cambridge University Press,
1997)
Peter Caldwell, Popular Sovereignty and the Crisis of German
Constitutional Law: The Theory and Practice of Weimar Con-
stitutionalism (Durham, NC and London: Duke University Press,
1997)
David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans
Kelsen, Hermann Heller (Oxford: Clarendon Press, 1997)
Renato Cristi, Carl Schmitt and Liberal Authoritarianism: Strong
State, Free Economy (Cardiff: University of Wales Press, 1998)
Une Constitution suppose avant tout un pouvoir constituant. . . . Le

pouvoir constituant peut tout en ce genre. Il n’est point soumis d’avance à
une constitution donnée. La nation qui exerce alors le plus grand, le plus
important de ses pouvoirs, doit être dans cette fonction, libre de toute
constrainte, et de toute forme, autre que celle qui lui plaît d’adopter.
(Emmanuel Sieyès1)
The power of the sovereign itself contains the three moments of the total-
ity within itself, namely the universality of the constitution and the laws,
consultation as the reference of the particular to the universal, and the
moment of the ultimate decision as the self-determination to which every-
thing else reverts and from which its actuality originates. (G. W. F. Hegel2)
Since his death in 1985, Carl Schmitt’s presence in the English-speaking
world has grown considerably.3 Although for some scholars this unex-
pected return is seen as a delayed but welcome recognition of one of the
PHILOSOPHY & SOCIAL CRITICISM • vol 25 no 5 • pp. 87–125

PSC
Copyright © 1999 SAGE Publications (London, Thousand Oaks, CA and New Delhi)
[0191-4537(199909)25:5;87–125;009384]

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Philosophy & Social Criticism 25 (5)
most prominent constitutional and political thinkers of our century,4
others are more reserved and cautious. In fact, a growing number of
critics are voicing indignation and disquiet over this tardy and unantici-
pated rediscovery of a thinker whose name is directly linked with some
of the most infamous anti-Semitic writings of the 1930s in Germany and
who openly embraced and justified the rise of National Socialism to
power.5 In the last few years, however, a younger generation of scholars
has attempted to reconsider Schmitt’s work from a fresh perspective,
going beyond existing interpretations and polarizations. In proposing
new readings, they have succeeded in elevating Schmitt within the realm
of contemporary political ideas. John McCormick, Peter Caldwell,
David Dyzenhaus and Renato Cristi are all part of this process of
improving our understanding of Schmitt. By paying careful attention to
their work, not only can we gain a more robust view of Schmitt’s think-
ing, we can also access broader debates central to contemporary politi-
cal theory that were at the core of his writings – debates about the
meaning of liberalism, the nature of politics, the role of the state, and
perhaps, most importantly, about the prospects for democratic theory.
Despite their substantial differences, these four scholars share three
considerations that justify a common reading. First, they represent a
break from a previous generation of Schmitt students, the first to pay
attention to his work and to introduce him to the North American audi-
ence. Notwithstanding its merits, this initial treatment of Schmitt offered
an apologetic and uncritical account that could not go unchallenged.6
Secondly, and despite its critical distance from overly sympathetic
presentations of Schmitt’s work, this new generation seems aware of the
danger of falling into the opposite extreme, that of demonizing or alto-
gether dismissing Schmitt’s work.7 Finally, in order to initiate a serious
engagement with his work, these authors endeavor to place Schmitt’s
thought at the center of recent debates in political, social and legal theory
and to test its relevance and potential contributions. Thus, contrary to
the highly historical and contextual character of earlier attempts, these
newer works treat Schmitt more as our contemporary who has some-
thing relevant to propose rather than simply a controversial thinker of
the past.
Below I present a critical analysis of these works in three parts. After
examining their distinctive interpretations and arguments closely, I point
to what I see as their limitations and weaknesses, which render them
incapable of adequately assessing the significance of Schmitt’s political
and legal thought. As I shall argue, while, on the one hand,
McCormick’s, Caldwell’s and Dyzenhaus’ readings, despite their pro-
claimed intentions, remain partial, biased and totally dismissive, on the
other hand, Cristi’s interpretation, although it has the merit of provid-
ing a more balanced and moderate account – an account which does

89
Kalyvas: Review essay
justice to Schmitt’s deep political motivations and thus represents the
best discussion of Schmitt’s political theory in the English-speaking
world to date – it nonetheless fails to grasp the powerful, though under-
developed, intuitions inherent in Schmitt’s central project of rearticulat-
ing within a comprehensive theoretical framework the relationship
between constituent power, sovereign decision and democracy. Ulti-
mately, the four books under consideration by isolating and inflating the
shortcomings of this project, miss the opportunity to engage produc-
tively with Schmitt’s work and point to the need to initiate a third
hermeneutic wave of Schmitt studies, one that is neither apologetic, nor
dismissive, but reconstructive and selective. It is toward such an engage-
ment that I turn my attention in Part IV. There, I briefly suggest some
plausible directions that the study of Schmitt’s political theory could take
in an effort to recover and develop its unexplored potentialities for
radical democratic theory.
I
John McCormick’s Carl Schmitt’s Critique of Liberalism is astonishingly
inclusive and ambitious. On the one hand, he offers a provocative ex-
egesis of Schmitt’s work, based on a wide range of his writings, which
are usually kept apart, and pays particular attention to early texts that
have been overlooked. In fact, McCormick provides one of the most
detailed and in-depth presentations of Schmitt published to date. On the
other hand, drawing upon an interpretative framework borrowed from
the tradition of critical thought, McCormick suggests guidelines for
redefining the content and tasks of critical social theory that could revive
the practice of critical inquiry associated with the by-now declining
Frankfurt school.8
His central thesis is that Schmitt’s critique of liberalism was part of
a response to the more general crisis of European civilization, manifested
in the world-historical trend of secularization, rationalization, disen-
chantment, and the loss of ultimate meaning. Schmitt understood this
crisis to be caused by the rise of technology and science.9 In order to sub-
stantiate this claim, McCormick explores the influence that Friedrich
Nietzsche and Max Weber exercised on Schmitt’s work. Unsatisfied by
what he deemed to be the failure of the latter to overcome the dilemmas
of modernity, McCormick argues, Schmitt inserted Nietzsche’s symbolic
figure of the Antichrist into a radicalized version of Weber’s theory of
rationalization, identifying technology as the utterly demonic. As early
as 1919, he laid down his own alternative research program, hoping to
succeed where Weber had failed, that is, in transcending the antinomies
of modern civilization and in breaking with the iron cage of techno-

90
logical reality. In fact, for McCormick, Schmitt’s central project was to
prevent by political means this seemingly irresistible trend of technicity
that was the prime cause of modern nihilism.10 Whereas Georg Lukács,
who was inspired by the same motivations and who reached similar con-
clusions about Weber’s shortcomings, took a leftist direction, finding in
Hegelian Marxism a solution to the problems of modernity, Schmitt’s
dialectics looked to the opposite direction, that of the right.
The real thrust of McCormick’s reading is most apparent in his rein-
terpretation of Schmitt’s famous critique of liberalism. For McCormick,
Schmitt understood liberalism as the incarnation of technology in the
realm of politics. Thus, his fervent and multifarious assault on liberal-
ism, the rule of law, legality, the division of powers, normativism, plural-
ism and parliamentarism should be viewed from the vantage point of his
hostility to technology. Schmitt’s rejection of liberalism was derived from
his conviction that, as a disguise of empty form, technical, instrumental
rationality and lifeless matter, liberalism had permitted technology to
infiltrate modern politics.11 Ultimately, if liberalism provoked Schmitt’s
loathing it is either because it had contributed to the building of a mean-
ingless, mechanical universe or because it had tragically failed to provide
a viable and effective alternative to its growing power. Likewise, once
Schmitt broke with the normative core of liberal values, he juxtaposed
to the impasses and aporiai of technological modernity an explosive
combination of charismatic leadership, the aesthetization of politics,
irrationalism, sheer will and the cultivation of fear through myth. Thus,
alongside his critique of technology, he added a radical theory of politi-
cal transformation, which ultimately led him to participate actively in
the breakdown of the Weimar republic. Seeking to imbue modern dis-
enchanted societies with new meanings and values, Schmitt abandoned
normal politics, affirmed fascism, and ultimately joined the Nazi Party.
It is therefore this idiosyncratic and extremely negative understanding of
technology as the demonic that exposed Schmitt to the totalitarian spell.
There is undoubtedly much merit to this interpretation of Schmitt.
McCormick succeeds, for example, in enlarging the scope of the dis-
cussion constrained by a strict political reading of Schmitt. He also
establishes the links between Schmitt and the broader intellectual and
cultural climate of the Weimar years, highlighting his affinities with a
larger intellectual milieu, which included among others, Lukács and
Heidegger. Finally, he is attentive to the underlying philosophical
assumptions of Schmitt’s project, bringing to light preoccupations that
are crucial for grasping critical aspects of his political objectives. But, at
the same time, he offers a less than adequate account of Schmitt’s politi-
cal thought. One must ask how persuasive is McCormick’s ‘cultural’
reinterpretation, which identifies technology instead of liberalism as his
main rival? What remains of Schmitt’s profound political motivations?

91
As I see it, McCormick’s central thesis not only de-politicizes the writ-
ings of a thinker who struggled to rescue the political from oblivion, but
it also offers a distorted and misleading account of Schmitt’s overall
theory.12 It is distorted because McCormick fails to demonstrate the
axial role of technology in Schmitt’s work, and is misleading because this
arbitrary insertion of technology at the core of Schmitt’s thought leads
to serious interpretative blunders and false assessments.
The understanding of Schmitt’s project as a reaction to the dangers
unleashed by technology stands exclusively on the alleged debts of
Schmitt to Nietzsche and Weber, and these claims are hard to prove. In
the case of Nietzsche, McCormick categorically affirms that Schmitt’s
appropriation of ‘the Nietzschean image of the Antichrist emerges as
central to Schmitt’s confrontation with, and proposed solution to, tech-
nology’ and that this is but a part of the pervasive ‘Nietzschean elements
of Schmitt’s critique of technology’.13 When it comes to establishing this
Nietzschean connection, however, McCormick openly confesses the near
complete absence of references to Nietzsche in Schmitt’s work and
provocatively ignores those few references that do exist and which are
all negative.14 Here, McCormick shows himself to be woefully deficient,
for in his eagerness to turn Schmitt into a political Nietzschean, he vio-
lates the textual as well as historical evidence and manipulates the con-
clusions that can be drawn from it.15 By introducing Nietzsche as the
chief influence on Schmitt, McCormick dramatically underplays the
presence of Catholic political thought in Schmitt’s early writings, missing
its substantive content, arguments and intentions, and thus fails to
account for Schmitt’s intellectual and political evolution.16
The striking absence of Nietzsche from Schmitt’s writings and con-
cepts does not discourage McCormick, though.17 Instead, he attributes
the influence of Nietzsche ‘to the fact that the intellectual figure who most
influenced Schmitt, Max Weber, is widely acknowledged to be a devotee
of Nietzsche, and that it is assumed that any trace of Nietzsche in
Schmitt’s thought was simply passed on to him from Weber’.18 This is a
highly questionable claim. Not only does McCormick elude the fact that
the alleged link between Weber and Nietzsche is contested today by many
commentators on Weber’s work, thus undermining any case for the indi-
rect influence of Nietzsche on Schmitt,19 but he also fails to give us any
evidence of Weber’s direct influence.20 Relying exclusively on secondary
sources, he unscrupulously labels Schmitt a ‘protégé’ of Weber and
advances the extravagant argument that Schmitt’s shift to political
Catholicism (from where?) was prompted by the influence of Weber!21
Correspondingly, McCormick reproduces a common misinterpretation
of Schmitt’s theory of sovereignty as charismatic.22 According to this
reading, Schmitt’s understanding of sovereignty was shaped by ‘his recep-
tion of Max Weber’s theory of charisma’.23 The only difference is that

92
while Weber introduced charisma against the ‘iron cage’ of rationaliz-
ation, Schmitt, by radicalizing it, turned it against the ‘iron cage’ of tech-
nology. Again, not only is there no textual evidence in Schmitt’s writings
about charisma or charismatic legitimacy, but McCormick also fails to
mention the cases in which Schmitt scorned the concept of charisma as
being too irrational.24 Nowhere in Schmitt’s writings does the sovereign
– as an individual or collective entity – gain its legitimacy through its
inner, extraordinary, charismatic abilities, but rather because of its ability
to represent higher immaterial values and ideas, that is, to act as a rep-
resentative of the ‘invisible’.25 Alone among Weber scholars in the United
States, George Schwab has rightly observed that ‘although Schmitt spoke
of the president being the leader of the German people, he did not imply
that the president had to possess charismatic qualities’.26 Finally, this
conflation of Weber and Schmitt obscures the crucial distinction between
Weber’s procedural definition of democracy as a mechanism of leader
selection and Schmitt’s own substantive re-conceptualization as the iden-
tity between rulers and ruled.27 For similar reasons, McCormick misses
the crucial difference between Weber’s definition of the political and
Schmitt’s own alternative understanding that he probably developed as
a critique of and in response to Weber’s political theory. These two omis-
sions prevent McCormick from making an interesting comparison with
today’s inflamed debates on the vexing relationship between procedural
and substantive democracy and from exploring Schmitt’s potential
contribution to these debates. Ultimately, by reducing Schmitt’s critique
of proceduralism to a mere existential rejection of instrumental reason,
McCormick not only misses the original and insightful qualities of
Schmitt’s political critique of legalism and ‘pure procedural justice’28 but
also represses the elements of democratic legitimacy inherent in Schmitt’s
theory of the constituent power of the people, a point to which I will
return below.
The problem, however, is not only that McCormick’s contention
about the Nietzschean and Weberian influence on Schmitt cannot be
supported and that his interpretation of technology as being the pivotal
category of Schmitt’s entire theoretical edifice breaks down as soon as
one starts taking the texts seriously. This claim also leads to a distorted
presentation of Schmitt’s views on other issues as well. McCormick
takes, for example, Schmitt’s critique of the separation of powers to be
a simple translation of his broader refutation of technology. Thus, he
argues that Schmitt’s uneasiness with the separation of powers was
derived from its being ‘an overly mechanical construction’, ‘a phenom-
enon of political subsystem differentiation’, which, because of its tech-
nical, mathematical, and scientific nature, undermined the autonomous
basis of substantive meanings and promoted a disenchanted world.29
Instead of understanding Schmitt’s critique as an expression of anxiety

93
in the face of ungovermenability, disunity and the suppression of sov-
ereignty, McCormick postulates a non-existent existential fear of the
loss of meaning and the erosion of values. Although it is possible to
find evidence of certain mechanistic metaphors and allegories in
Schmitt’s work, he was clearly using them figuratively the better to
illustrate his point. In fact, Schmitt was reproducing a classical politi-
cal argument, which following the line of absolutist thought and the
critiques of the mixed constitution and the separation of powers, aimed
at the defense of the indivisibility and unity of state power. If liberal-
ism emerged as an attempt to limit the arbitrary potentialities of sov-
ereignty, monarchical or popular, and to protect the pre-political rights
of isolated individuals by turning power against power, how, Schmitt
asked, could the state be able to govern effectively and to assert its
primacy in the face of growing religious, social and economic conflicts?
How can a democratic regime impose order and stability over a con-
flictual and power-ridden modern civil society once its power is
divided, dispersed and reduced to mere administration? In that sense,
can it not be said that liberalism subverted the strength of democracy?
Indeed, for Schmitt, liberalism was born out of a fear of the constituent
power of a sovereign people. These purely political considerations,
which shed light over the origins of Schmitt’s political thought, are lost
within McCormick’s labyrinthine arguments on technology, meaning-
lessness and nihilism.
Likewise, in the case of an emergency, according to Schmitt, the
liberal constitutional state is absolutely unfit to make the appropriate
decisions and to take the proper measures to assure its own survival.
Liberalism’s unwillingness to break with the normative constraints
imposed by an abstract and formal rule of law affects its capacities to
react and to affirm itself in cases of unpredictable disorder and danger.
Although McCormick concedes that Schmitt’s critique is persuasive, he
fails to account for it properly because he views it as an existential fear
of technology and nihilism. Likewise, he misses the opportunity to
closely examine and critically discuss Schmitt’s controversial but power-
ful statement that the exception is the precondition of any legal order,
the condition of its possibility, and that all norms are based on an act of
will and are derived from a political decision.30 Indeed, the one who
makes this decision becomes the sovereign.
Allow me here a small but crucial regression. It is one mistake to
think that Schmitt equated his critique of liberalism with a critique of
technology and another to claim that he demonized technology as such.
McCormick makes both. In fact, in those cases where Schmitt dealt
directly with technology it was in order not only to dispel the naive, opti-
mistic beliefs in its inherent progressive and liberating aspects, but also
to undermine its demonization by certain German intellectuals. Indeed,

94
Schmitt’s approach to technology was more complex and nuanced than
McCormick’s arguments suggest. Schmitt deliberately sought to escape
both extremes. He embraced neither the faith in ‘magical technicity’ and
the ‘religion of technical progress which promised all other problems
would be solved by technological progress’ nor the fear of ‘the irresistible
power of technology . . . as the domination of spiritlessness over
spirit’.31 Against this mood ‘of cultural decline’, of which Weber was a
primary exponent, Schmitt acutely observed that the so-called ‘spirit of
technicity . . . is . . . not one which can be dismissed as mechanistic and
attributed to technology. It is perhaps something gruesome, but not itself
technical or mechanical.’32 This spirit reflects, on the contrary, a deeper
cultural and philosophical attitude that has saturated modern civiliz-
ation, namely the will to master and to dominate. As such it has nothing
specifically technological about it, and the technological has done
nothing evil.33
Against the mystifications of his time, Schmitt deployed an
extremely insightful theory of the dialectics between neutralization and
re-politicization.34 All principles that become elevated to the central,
neutral regulative sphere of a historical epoch lose their alleged neu-
trality and change into objects of contestation and struggle. As he
argued, ‘always the newly won neutral sphere has become immediately
another arena of struggle’.35 The same fate befalls technology. As soon
as it emerges as a neutral and impartial sphere, it is transformed into a
contested and controversial area where different political forces
struggle in order to use it to advance their own partial interests. Against
different versions of ‘technological fetishism’ Schmitt’s intervention
appears surprisingly moderate and detached. Not only, therefore, did
Schmitt not demonize technology, but in those cases in which he did
denounce it, it was in order to uncover its hidden political and ideo-
logical (mis)uses. He understood very well and quite before his time that
technology can be used as a political weapon to hide specific power rela-
tions and interests under the veil of neutrality and objectivity. In that
sense, Schmitt anticipated what later was commonly described as a cri-
tique of technocracy. But to deduce from this criticism of the political
uses and misuses of technology and science a philosophical opposition
to the ‘spirit’ of technology is to read too deeply between the lines and
to totally miss Schmitt’s political point. According to Schmitt, tech-
nology restricted within its proper limits does not pose a threat. Once
elevated, however, to the central sphere of society and culture, it auto-
matically becomes politicized and turns into a powerful instrument for
oppression and manipulation.36 Here, the emphasis is on the neutral-
ization and depoliticization of technology rather than on its supposedly
demonic powers.
The shortcomings of McCormick’s Nietzschean reading also affect

95
his discussion of myth, fear and the aesthetization of politics.37 Schmitt’s
recourse to the mythical, the argument goes, was a logical consequence
of his deep dissatisfaction with the disenchanted, technical and rational-
ized modern world. McCormick attempts to trace the links between the
construction of myths, the enemy/friend distinction (the concept of the
political), and the dissemination of fear. According to this approach,
Schmitt understood the political as a struggle against a mythical enemy
whose symbolic interpellation cultivates the necessary terror that makes
its annihilation possible.38 The problem with this interpretation is not
only that McCormick fails to distinguish between a descriptive and a
prescriptive approach, imputing to Schmitt a normative theory of the
political,39 but, more importantly, he misses the constitutive and fluid
character of political identity-formation implicitly contained in Schmitt’s
discussion of the intersection of myth and the political. This is not the
occasion to pursue this line of investigation,40 but it must be noted that
Schmitt’s friend/enemy distinction points to a relational and anti-essen-
tialist dimension of political identities. For Schmitt, political conflicts
constitute the central mechanism of identity-formation through which a
group’s substantive sense of ‘us’ is constructed by a confrontation in
which each term of the relation simultaneously consolidates and
enforces the identity of the other. This theory starkly contrasts with
essentialist and foundationalist explanations of group identity that fix
once and for all the perimeters and content of group particularity
according to an objective position within a given system of structural
determinations. Political identities cannot be closed, self-referential
essences because the friend/enemy criterion is ‘not . . . an exhaustive
definition or one indicative of substantial content’.41 They are relational
and interactively constructed, dependent on a ‘constitutive outside’
designed symbolically as the ‘negated other’.42 Without the postulation
of a radical other, located in the threatening presence of an exterior
space, it is not possible to define one’s identity and particularity.
These omissions and distortions that permeate McCormick’s ren-
dition of Schmitt’s thought can be traced back to a single source: whereas
in the beginning McCormick asserts that ‘to appreciate fully Schmitt’s
enterprise, one needs to see more clearly – in total, and beyond mere
apology and polemic’, in the concluding passage he reveals his real inten-
tion: ‘to exorcise the still-haunting ghost of Carl Schmitt’.43 Indeed, by
insisting on this old-fashioned ‘witch-hunting’ methodology in order to
demonize one’s opponents, it is no surprise that McCormick fails in his
undertaking to capture the core of Schmitt’s political thinking and to
appreciate its significance for contemporary political and constitutional
theory. In that sense, McCormick, in spite of his explicit attempt to avoid
the excesses of many recent attacks on Schmitt, ultimately reproduces
the same flaws.

96
II
Precisely because of McCormick’s failure to capture the political dimen-
sion and the originality of Schmitt’s constitutional theory, Caldwell’s and
Dyzenhaus’ discussions can be read as important correctives to this over-
sight. Although Schmitt is not their sole focus he nonetheless emerges at
the center of their arguments as the most controversial and engaging
figure. Their work is a refreshing exception to the total absence in the
English-speaking world of a serious study of Schmitt’s constitutional and
legal thought. They persuasively show Schmitt to be a seminal thinker
actively involved in the constitutional debates of the Weimar republic.
But Caldwell and Dyzenhaus accomplish more than that. First, by
placing Schmitt within the broader framework of the German tradition
of constitutional theory and by tracing the complex and intriguing rela-
tions between Schmitt and other eminent figures such as Paul Laband,
Hans Kelsen, Rudolf Smend and Hermann Heller, they sensitize us to
the deeper legal questions that vexed Schmitt. Thus, they succeed in
recovering his central place in modern constitutional theory. Further-
more, they attempt to read Schmitt’s engaged political writings from the
perspective of his most academic, serene and scholarly texts, which
remain relatively ignored in the English-speaking world. Finally, they
approach Schmitt’s political thought from the point of view of demo-
cracy’s most fundamental challenge: how to establish a permanent link
between the people or the constituent power and constitutional law or
the constituted powers. Hence, instead of adopting the usual assump-
tion that Schmitt attempted to replace the norm with the exception, cre-
ating a permanent state of emergency, these two authors touch upon
Schmitt’s unsuccessful effort to reconcile the extraordinary with the ordi-
nary within a comprehensive legal framework.
In Popular Sovereignty and the Crisis of German Constitutional Law,
Caldwell correctly identifies Schmitt’s fundamental, reconstructive
project, which became the guiding thread of his entire oeuvre, as the
elucidation of the obscure and paradoxical foundations of a democratic
order.44 Caldwell situates Schmitt’s critique of positivism and liberalism
against the limitations and dilemmas of Kelsen’s pure theory of law with
respect to the meta-legal grounds of the modern, secular, political and
constitutional order. Provoked by Kelsen’s failure to provide an adequate
solution to the problematic relationship between will and norm, the insti-
tuting and the instituted, society and state, Schmitt brought back into the
discussion that enigmatic, original and founding ‘moment “before” the
constitution’.45 As it became a common tenet that the constitution did
not descend from heaven ready-made, but was a collective human cre-
ation, Schmitt directed his attention to the subject/carrier of this consti-
tution-making act that lay behind the founding moment. To the question

97
of who should be the bearer of the constituting power, Schmitt answered
by postulating a homogeneous macro-subject – the people – as the ulti-
mate holder of the ‘constitution-granting power’ prior to and above any
political institution or legal norm. More precisely, Schmitt was able to
carry out this investigation because of his innovative dialogue with
Sieyès’s concept of the pouvoir constituant, which threw him into a
thrilling venture in the origins of the instituting ground-power of
society.46 Similarly, he wrestled with the political and legal consequences
of the displacement of the sovereign power from the Monarch to the
People.47 Instead of avoiding or suppressing this event, as most of the
literature in democratic theory has done, Schmitt explored the political
implications of the rise of popular sovereignty, and particularly the con-
sequences resulting from the fact that ‘the decisionistic and personalistic
element in the concept of sovereignty was lost . . . [because] the unity that
a people represents does not possess this decisionistic character’.48 In
other words, Schmitt directly addressed the problem of collective action
in the case of a sovereign who is transformed into a faceless, anonymous
multitude and who has lost its specific, personal properties.
Caldwell immediately points out the shortcomings of Schmitt’s
metaphysics of presence. Trapped in the tradition of the philosophy of
the subject, Schmitt seems to have resuscitated a transcendental, demi-
urgic collective entity, already existing, unadulterated and natural,
homogeneous and organic, emanating original, global decisions, creating
constitutions, and embodying the creative power of society’s ability to
institute and to alter itself. In addition to the metaphysical evocation of
the people as the substantive, originating foundation, Schmitt located the
generating power of the constituent will ‘outside’ and ‘above’ the consti-
tution, in an extra-legal exterior, making sure that this instituting activ-
ity could not be prescribed, limited, or contained constitutionally. Hence,
he broke with the normative and institutional ties constraining con-
stituent power. As the creator cannot be consumed by its creations, so
the constituted object – the constitution – cannot absorb the constituent
subject – the people. Thus, exactly because in Schmitt’s political theo-
logy, ‘constituent power is the secularized version of the divine power’,
as Ulrich Preuss has pointed out, it seems ‘to create an order without
being subject to it’.49 It is not difficult to see here the dangerous poten-
tial of collective voluntarism, limitless arbitrariness and legal nihilism.
The postulation of a primordial, groundless value-giving power of the
multitude, the unformed (formlos) form of all forms,50 located outside
any norm and deliberative activity, in a natura naturans and a normless
foundation, reminiscent of the pre-political Hobbesian state of nature,
bears the distinct danger of legal nihilism and the factual brutality of con-
tingent power blocs.
But Caldwell’s critical conclusion that this formulation had to end ‘in

98
the affirmation of the president’s immediate and legitimating connection
to the sovereign . . . [that] merely opened the gate for the eventual Nazi
takeover’ is misplaced and unconvincing.51 It unscrupulously takes for
granted that Schmitt’s theory of constituent power could not but conclude
in a plebiscitarian form as if this were an internal necessity. Caldwell does
not provide any sound and credible reason why this had to be so. Apart
from some vague suggestions, he fails to establish an intrinsic and logical
relationship between Schmitt’s constitutional theory and Nazism. More
interesting in Caldwell’s discussion are two other controversial issues that
stand in need of further elaboration. First, although Caldwell rightly ques-
tions Schmitt’s postulation of a homogeneous sovereign identity he
nonetheless neglects to take into account some other parts of Schmitt’s
argument thus providing a reductionist and one-dimensional reading. The
answer to the question of whether Schmitt espoused the idea of a natu-
rally given and already constituted political subject, is more complicated
and nuanced than Caldwell suggests and has to be qualified considerably.
Not only did Schmitt, in one of those rare cases of self-criticism, reject his
earlier understanding of the constituent power as a transcendental and
metaphysical category, but also, in many different instances, he ap-
proached the people not as a firm and organized entity, endowed with a
permanent identity and imbued with substantive and transhistorical inter-
ests, but rather as forming its political identity through politics. Indeed,
the primary objective of a democratic project is the construction of a
collective agency. By bringing together on common grounds a multitude
of subject-positions, the project of a democratic society presumes the
struggle for the formation of a collective subjectivity, capable of demo-
cratically conceiving and positing common ends as regards to the central
social significations of society. This political subject does not need to be
substantially taken for granted. Its different elements must simply com-
prise a ‘shared ground’, organized around the symbolic representations
and meanings of a democratic project. Hence the constitutive role of the
friend/enemy distinction as well as that of myth: both refer to this politi-
cal ‘interpellation’ and construction of the people qua sovereign subject.
In fact, Schmitt sometimes alluded to a different definition of poli-
tics as the attempt ‘to create homogeneity and to shape the will of the
people with methods uncommon in the liberal tradition of the past
century’.52 Although he soon recognized that these methods had been
predominantly elitist he understood the importance of antecedent
struggles in civil society for the formation of a democratic will. In stark
opposition to the liberal postulation of isolated individuals as the pri-
mordial ground, Schmitt, in accordance with democratic theory, con-
fronted the vexing issue of collective will-formation. He suggestively
asserted that ‘everything depends on how the will of the people is
formed’53 to note the importance of ‘who has control over the means

99
with which the will of the people is to be constructed: military and politi-
cal force, propaganda, control of public opinion, through the press,
party organizations, assemblies, popular education, and schools. In par-
ticular, only political power, which should come from the people’s will,
can form the people’s will in the first place.’54 One cannot avoid think-
ing about the significant affinities between this aspect of Schmitt’s
thought and Gramsci’s concept of the ‘modern prince’ and his theory of
a ‘war of position’ launched in civil society, aiming at the construction
of a hegemonic-historical democratic bloc.55 It is not the moment to
pursue this line of comparison further, which requires a study of its own.
Suffice it to say that Schmitt, alluded to a different, broader and con-
structivist definition of the sovereign as one who creates the particular
identity of the people.56
This brings me to Caldwell’s second point. I would like to stress,
without altogether disagreeing with Caldwell, that Schmitt’s work
reminds us not to reduce democracy to pluralism. The liberal endorse-
ment of the normative worth of pluralism has in the past played the role
of limiting, fragmenting and thus weakening democracy. It is one thing
to want to distinguish democracy from collective arbitrariness and
totalitarianism and another to disregard completely the fact that plural-
ism, a model directly taken from the market, can also entail the exist-
ence of pervasive asymmetrical power relations among competing
collective entities. In such cases, the need to challenge these relations
requires more than plural acts and decentered agents. The liberal and
postmodern glorification of pluralism with its constant reference to
balances, compromises, negotiations and prudential agreements often
conceals and, in any case, fails adequately to address the unequal distri-
bution of power in society and its prevailing structures of domination
and hierarchy.57 In fact, pluralism and its ensuing principle of Divide et
impera has been used in the past to fragment and weaken the will of the
people by all the various types of tyranny.58
In my view, Caldwell, by poignantly attacking Schmitt, overlooks
this significant aspect of the latter’s work, namely that by replacing the
concept of sovereignty with pluralism one is dispensing with the possi-
bility of conscious collective action. The prospect of an autonomous
society is inherently related to the society’s capacity to act collectively.
Only through a collective action can society see itself as what it is, self-
determined, knowing and affirming its power as a producing subjectiv-
ity.59 Democracy is precisely that regime that endows an expansive
collectivity with increasing political and even constituent power and that
presupposes the people as an existing and effective political power. One
does not need to be an apologist of Schmitt to see that democracy, sov-
ereignty, and collective will need to find a point of encounter. Recently,
Bernard Manin has recognized that any constitution ‘presupposes a

100
certain conception of the unity of the people. To be considered capable
of agency, a people must be seen as unified in one way or another. Iden-
tity and representation are the two extreme conceptions of what make
a people a unified agent. . . . When a group of individuals has a strong
sense of being similar in a way that is particularly important, the group
thereby becomes a community capable of political action.’60
While Caldwell focuses predominantly on the problematic relation-
ship between the constituting and the constituted, Dyzenhaus’ Legality
and Legitimacy focuses on the tension between procedural and sub-
stantive democracy. In doing so, he injects Schmitt’s theory into recent
political and legal debates, bringing him face to face with the theories of
such figures as John Rawls, Jürgen Habermas and Ronald Dworkin.
Indeed, Dyzenhaus takes very seriously Schmitt’s pervasive critique of
liberalism and legal positivism and sees it as a challenge that has yet to
be answered. Thus, his treatment of Schmitt aims at revealing the pre-
scient nature of his thought.
Dyzenhaus pays particular attention to Schmitt’s search for a new
constitutional theory that would subordinate the liberal elements to a
substantive, democratic principle of identity. In other words, Dyzenhaus
touches on the controversial question of whether Schmitt sought to
destroy constitutionalism by establishing a permanent state of exception,
irrationality and discretion, or if he rather attempted to formulate an
alternative constitutional model that would transcend the contradictions
and inner tensions of liberal constitutionalism, while at the same time
providing a solid, legal form for the stable interaction among state,
people and sovereignty. For Schmitt, the constitution, in its ‘absolute’
form, was not a formal text or a set of neutral procedures but a positive
document that embodies the fundamental values and founding decision
of a political community. He understood the constitution to be less a
compromise among different power positions and more a ‘way of being’.
He seemed willing to argue that a procedural democracy based exclu-
sively on legality is at best a fraud and at worst self-defeating, unless one
intervenes deeply in the substantive organization of social life.61 Thus,
Schmitt’s critique of legality was not prompted by an existential fear of
the rise of meaninglessness and the nihilism of a modern, rationalized
and technological world, but by his anxiety over the capacity of a politi-
cal and legal order to protect, affirm and reproduce itself in the face of
pervasive and corrosive social conflicts.62
Dyzenhaus’ emphasis on Schmitt’s critique of liberal legality has a
number of intriguing aspects. First, it illuminates Schmitt’s anticipation
of contemporary discussions of such fundamental tensions in liberalism
as between substantive values and neutrality, partisan engagement and
avoidance of conflict through the strategy of privatization and tolera-
tion. Second, it uncovers Schmitt’s quest for normalcy, security and

101
order. While it has become commonplace to make the extraordinary and
the exceptionable the central interpretative categories of Schmitt’s
thought, Dyzenhaus suggests that Schmitt was equally concerned with
how to contain and curb the creative form-giving, constituent power of
the sovereign will.63 He correctly notes that
while the vitality of the exception looms large as the theme of Political
Theology, it is important to keep in mind that Schmitt was not arguing for
the total negation of normality. Indeed, in other works of this period, he
seemed to argue for the desirability of legally established normality. For he
did not reject the idea of a society comprehensively governed by legal
norms, on condition that the political decision that underpins that legal
order is made explicit.64
Finally, this reading exposes Schmitt’s influence on Hermann Heller, the

real protagonist of Dyzenhaus’ narrative. This influence had important
ramifications. Heller, a social-democratic political thinker and jurist,
accepted Schmitt’s definition of sovereignty as the power to decide, but
attributed this power directly to the people as such and not to a plebisci-
tarian president or to any other intermediate, representative organ.65 He
also shared Schmitt’s substantive redefinition of democracy, which
became the basis of his own understanding of socialism as a natural com-
munity based on a sense of duty and mutual respect among national
comrades.66 This comparison between Schmitt and Heller certifies the
influence of Schmitt’s thought on thinkers of the left, which cannot but
be attributed to a deeper theoretical proximity between Schmitt and
democratic thought.67
Dyzenhaus, however, subjects Schmitt to a penetrating critical
examination. He correctly points to a deep and central tension between
a conflictual model of the political based on the confrontation between
friend and enemy and his perennial Hobbesian search for security,
domestic pacification and order. Paradoxically enough, although
Schmitt sought to distinguish the state from the political, he ultimately
returned to a fusion of the two, so characteristic of liberalism.68 I would
like here to take Dyzenhaus’ point a little bit further. This tension in
Schmitt’s thought reflects a deeper ambiguity with respect to the cat-
egory of neutrality. On different occasions, Schmitt argued both against
and for neutrality. His attack on liberalism for being neutral and anti-
political has become famous. His own quest, however, for a pouvoir
neutre that would neutralize and de-politicize certain spheres of life has
been largely overlooked.69 It is not possible in this context to go into
the details of this tension or to suggest how it can be resolved from
within Schmitt’s dialectics of neutralization and repoliticization. It is,
however, an important issue, which should not remain overlooked for
much longer.

102
Additionally, Dyzenhaus notices the ever-recurring problem of arbi-
trariness and the lack of limitations in Schmitt’s constitutional theory.
Much like Caldwell, however, he is eager to disregard Schmitt’s attempt
to come to grips with the consequences of the democratization of
constituent power, stressing instead the transition from the concept of
constituent power to a personified extra-legal force operating in a consti-
tutional emptiness and devoid of any normative content. In so doing,
like Caldwell, he falsely reduces the search for a substantive theory of
democracy and an ‘absolute constitution’ to communitarianism or
plebiscitarianism and misses the opportunity to develop the rich insights
of Schmitt’s important distinction between the constitution (Verfassung)
and constitutional laws (Verfassungsgesetz).70 Schmitt deployed this dis-
tinction in his critique of the power of amendment rules and consti-
tutional revision against the general tendency of legal positivism and
proceduralism to relativize and instrumentalize the constitution. Given
the still prevalent inclination to reduce the norm-giving power of the
multitude to a set of amendment rules, Schmitt’s arguments are remark-
ably relevant today, and should be seen as an attempt to consolidate
rather than to undermine constitutionalism.71 Ultimately, Schmitt’s
rejection of legality comes down to the fundamental question concern-
ing the role, meaning and function of a constitution and the distance that
should separate it from normal politics.72 Given Dyzenhaus’ neglect of
Schmitt’s distinction, a brief remark is necessary. By taking into account
this particular aspect of Schmitt’s thought and examining the impact of
his intervention in the debate concerning the scope and character of the
power of revision, one can better reconsider Dyzenhaus’ question of
whether Schmitt aimed at the destruction of the constitution as such or
at the rejection of liberal constitutionalism in favor of a more democratic
legal order. His claim that there are some essential, supra-constitutional
principles that cannot be abdicated through a simple legislative process
of everyday politics points to the need for securing the normative foun-
dations of a political regime from simple majorities. For Schmitt, the
constitution should not be modified by constitutional laws but only by
the direct manifestation of the constituent power of the people.73 Indeed,
as Claude Klein has demonstrated, Schmitt came very close to a position
held by Kelsen with respect to the protection of a constitutional order
from acts of self-destruction,74 anticipating today’s discussions about
‘constitutional patriotism’.75 Intriguing as this aspect of Schmitt’s consti-
tutional theory might be, it nonetheless completely disappears from
Dyzenhaus’ presentation.
Likewise, Dyzenhaus does not provide an objective assessment of
Schmitt’s references to the constituent power as a political force located
outside the instituted society. Schmitt’s attempt to protect against ‘the
people [who] sink from the political condition back into the unpolitical,

103
[and] lead a merely cultural or merely economic or merely vegetative life,
and serve another politically active people’76 has to be taken more seri-
ously. This preoccupation represents one of the most engaging topics in
modern democratic politics. The basic problem is how to clearly differ-
entiate constituting power from constituted powers and how to preserve
the former. Such attempts are certainly not lacking in our age, and they
became familiar through Trotsky’s notion of ‘permanent revolution’,
through Mao’s concept of ‘uninterrupted revolution’ and, more recently,
through Hannah Arendt and Cornelius Castoriadis who have offered the
most incisive critiques of totalitarianism. Arendt developed a theory of
public spheres that would keep alive the revolutionary, constituting
spirit, while Castoriadis distinguished between the implicit ground-
power of the Anonymous Collective and the reflective and explicit radical
instituting power of an autonomous society.77 Once more, the problem
of democratic agency re-emerges at the center of Schmitt’s political
thought in the form of an anxiety concerning the subterranean survival
of the ‘apocryphal’ acts of sovereignty78 in moments of ordinary politics.
Today, in the context of regulating everything by means of rules, pro-
cedures and instituted mechanisms, few are willing to claim that consti-
tuting power is originary and irreducible, that it cannot be conditioned
and constrained by an existing legal system, and that it necessarily main-
tains itself outside the framework of instituted powers.79 In fact, the
popular power from which the constitution is born is increasingly dis-
missed as a prejudice, a myth, or a merely factual datum, and constituted
powers are more and more frequently elevated to the center of political
theory. Schmitt’s investigations can be a starting-point for rethinking
problems bearing on the survival of constituent power within constituted
powers.
Dyzenhaus’ reluctance to address these issues is due to his aim to
vindicate Heller. Dyzenhaus provides an extremely negative account of
Schmitt for the purpose of presenting a comparison that benefits
Heller.80 As a result, he, too, falls into the usual trap of depicting
Schmitt’s work as a ‘fascist legal theory’ with no potential contributions
except his ‘powerful’ critique of liberalism.81 By reducing him ultimately
either to an exclusively negative and critical thinker or to a fervent pro-
ponent of fascism who ‘glorified death in political battle’ and whose ‘cat-
egories lead inexorably to a politics that rests either on a blind hatred of
the other or, perhaps even worse to a cynical instrumentalization and
manipulation of the fear of the other’, Dyzenhaus aims to dismiss as
irrelevant and dangerous any attempt to selectively resuscitate Schmitt’s
thought and particularly his contributions to constitutional theory.82
Ultimately, notwithstanding the merits of their analyses, both Cald-
well and Dyzenhaus lose the opportunity not only to introduce Schmitt’s
legal theory to the English-speaking world by presenting a more balanced

104
and less partisan and partial interpretation, but also to expose and exploit
the many qualities of Schmitt’s constitutional theory for democratic poli-
tics.
III
By adopting a clear leftist position Renato Cristi’s Carl Schmitt and
Authoritarian Liberalism treats Schmitt differently from the previous
accounts considered here. The readings that I have presented have been
more or less explicitly liberal in their orientation. Cristi, by contrast,
starts from a solid Marxist position.83 According to Cristi, Schmitt
should be viewed neither as a Nietzschean cultural critic who advocated
the irrational, flirted dangerously with the aesthetization of politics, and
glorified pure will and power as autonomous values, nor as a reaction-
ary conservative constitutional theorist frightened by the demise of tra-
ditional order and established hierarchies brought about by the victory
of a skeptical, secular and individualistic liberal world-view. Instead,
Cristi argues, Schmitt was a prominent representative of a newly emer-
ging brand of liberalism: authoritarian liberalism, which adopted an
anti-democratic and dictatorial mantle once confronted with the threat
of popular movements, the rise of socialist parties, and the advance of
democracy. For Cristi, Schmitt’s central target was not liberalism and the
rule of law, as is conventionally thought, but democracy.84 Although
Schmitt is considered today to be one of the most fervent rivals of liberal-
ism, his real aim, according to Cristi, was to protect capitalism, a sphere
of free economy, civil society and bourgeois social order, from modern
mass democracy. With this aim he evoked a strong, independent, quali-
tative total state to replace the interventionist, quantitative welfare state.
Behind Schmitt’s attacks on parliamentarism, the rule of law, legal-
ity and the separation of powers, Cristi discerns a deeper uneasiness with
liberalism’s historical and political failure to halt the gradual advance of
democratic politics and to provide a viable alternative to the collapse of
monarchical sovereignty, a failure for which Schmitt held responsible not
the substantive values of liberal theory but mass democracy. Cristi boldly
asserts that Schmitt’s famous distinction between liberalism and demo-
cracy was part of his broader political project of ridding liberalism from
democratic elements and of reforming parliamentarism. To substantiate
this provocative reading, Cristi seeks to reconstruct Schmitt’s ambiva-
lent position toward both liberalism and democracy. While in his youth
Schmitt had been a revolutionary conservative who enthusiastically
adopted the political doctrines of Joseph de Maistre and Donoso Cortes,
sharing their extreme hostility to liberalism, he gradually softened his
dismissive stance, progressively coming closer to a liberal position. This

105
substantive shift was prompted partly by the left’s integration into
normal politics and partly by the espousal of a more sophisticated under-
standing of the political reality of his time. Behind both developments,
however, lay Schmitt’s growing hostility to the continuous progress of
democracy. He came to realize that while the neutral and minimal state
of the 19th century, along with its parliamentary institutions, had
remained functional for a considerable period of time, it was now facing
a deep crisis caused by external and sociological developments stemming
from the democratization of traditional political structures. As soon as
the popular masses, which were kept out of politics during previous
decades, actively entered the political arena, the liberal representative
state became dysfunctional, unable to make sovereign decisions, and
thus failed to uphold its historical role.85
The politicization of the economy, the emergence of mass parties
with strong values, the instrumentalization of parliament, its reduction
to the interests of party-politics, pluralism, and the fusion of society and
state, were problems brought about by democratic politics and needed
a stronger and more effective solution than the one classical liberalism
could provide. Although this transformation of modern politics dis-
credited classical liberalism, it did not lead Schmitt to reject it altogether.
It called only for its reformation, which Schmitt thought possible
through a strict separation between liberalism and democracy and an
alliance of the former with conservatism. This alliance produced
authoritarian liberalism, a synthesis reminiscent of Hegel’s politics: a
strong, anti-democratic state protecting the autonomy and the unfet-
tered function of civil society. Therefore, Schmitt’s ultimate concrete
enemy was democracy, not liberalism. It was not therefore a principled
and theoretical disagreement that prompted Schmitt to criticize liberal-
ism. ‘This development need not have occurred,’ Cristi asserts, ‘if the
parliamentary regime had been truly successful in preserving a status
mixtus, i.e. an inner balance among its constituent elements, particularly
between its executive and legislative functions, and not allowed the exor-
bitant development of the latter. Because the Weimar regime failed to do
this, Schmitt proposed the formula of an executive state as the only solu-
tion to the crisis faced by the Weimar republic’;86 a crisis, in other words,
caused by modern mass democracy. In the face of the democratic origins
of this crisis, Schmitt proposed the solution of a voluntaristic, dis-
cretionary sovereign dictatorship capable of restoring the order and
security that were so necessary for private investment and capitalist
profit.87
A major conclusion of Cristi’s reading is that Schmitt cannot be con-
sidered a totalitarian thinker because ‘at no point of his intellectual
development did [he] espouse such a totalitarian view’.88 On the con-
trary, he strongly advocated a strict separation of the public from the

106
private, a self-regulated market system, and an autonomous civil society.
His adherence to Nazism must be seen as representative of a broader
trend. Schmitt’s case is an integral part of a particular strand of con-
servative liberalism, which, with the arrival of the organized labor move-
ment, universal suffrage and radical left parties, has seen the rights of
property and the political heritage of the bourgeoisie threatened by an
overly active popular involvement in the political process. Mass demo-
cracy seriously encroached upon the independence of economic and
political elites. Schmitt’s shifts from revolutionary conservatism to the
more moderate authoritarian liberalism and then to Nazism were
entirely consonant with this tradition and directly dependent upon the
de-radicalization of the left: the more the left was de-radicalized, the
closer Schmitt came to a conservative version of liberalism; and vice
versa. Consequently, rather than being an enemy of the liberal order
Schmitt was an integral part of its disintegration and transformation.
His theoretical shifts and political changes express a recurrent demand
for a strong decisionist element and a unity of the state in the face of
competing sectional interests, the plurality of world-views, and funda-
mental disagreements over the distribution of power.
By choosing to discuss Schmitt, Cristi seeks to alert us to the dangers
inherent in liberalism, especially when it finds itself in a situation of
panic. Attending to Schmitt, therefore, one can gain a clearer view of the
‘weakness of liberal theory at the end of century’ and of the urgent need
‘to look beyond liberalism to forms of social solidarity which are not
wholly dependent on exclusive private property and economic growth,
and are more open to participatory forms of democracy’.89 Thus, Cristi
seeks to undermine liberalism’s claim to represent the most viable nor-
mative and political force against fascism and authoritarianism. His cau-
tious and detailed illustration of the liberal aspects of Schmitt’s political
and constitutional thought points to the overlooked proximity and dis-
turbing affinity between liberalism and a thinker who embraced
Nazism.90 Indeed, the strength of Cristi’s argumentative strategy is that
it reveals the complexities and ambiguities characteristic of Schmitt’s
ideas. And here lies one of the most important contributions of Cristi’s
book.
Contrary to the prevalent tendency to impute a substantive and
unbroken continuity in Schmitt’s work, always anti-liberal, reactionary
and anti-democrat,91 Cristi brilliantly illuminates its development,
changes and shifting allegiances revealing its consistent animating ten-
sions. Although Schmitt’s thought remained faithful to the strategic goal
of discovering an institutional surrogate for monarchical authority in
modern, democratic times, he addressed this challenge variously, advanc-
ing divergent designs at different moments of his theoretical development.
Pursuing the objective of salvaging the concept of sovereignty Cristi

107
rightly argues that Schmitt explored different solutions.92 As his thought
matured, he moved from a primarily reactionary conservatism, pure deci-
sionism and constitutional foundationalism, to a versatile reconciliation
with liberalism combined with a soft version of decisionism, which cul-
minated in his endorsement of Nazism and finally in the formulation of
the idea of institutional thinking.93 Indeed, much like Dyzenhaus, Cristi
rightly emphasizes Schmitt’s attempt to establish some limits in his
previous radical decisionism. This turn brought Schmitt closer to the tra-
dition of right Hegelianism and facilitated his rapprochement with
liberalism, and, as Cristi convincingly stresses, it ‘ought to be taken seri-
ously’.94 In addition to showing the actual effects of Schmitt’s shift,
Cristi’s discussion discredits the impoverishing and simplified view of a
perennial anti-rational, fascist Schmitt, who naively advocated sheer will
and extra-legal politics. Cristi directly addresses Schmitt’s project to
reconceptualize questions of stability, reproduction and institutionaliz-
ation. Instead of simply glorifying the exceptional, Schmitt was honestly
preoccupied with different articulations between extraordinary and ordi-
nary politics. It should be recognized, therefore, that alongside his orig-
inal retrieval of the constituting power of a political community, there is
also a less successful but equally important theory of the constituted
powers.
Notwithstanding these important contributions that undoubtedly will
improve our understanding of Schmitt’s oeuvre, Cristi’s interpretation
is not totally convincing. To begin with, Cristi remains ambivalent and
indecisive with respect to Schmitt’s relationship to liberalism. There are
two different versions of this relationship that equally qualify but are not
clearly distinguished. On the one hand, Cristi claims that Schmitt, after
his renunciation of revolutionary conservatism and his distancing from
political Catholicism, decided to settle his account with the Weimar
republic, to reform parliamentarism, and to achieve a viable reconcilia-
tion with the liberal tradition. This version emphasizes the pragmatic and
strategic alliance, an ‘accommodation’, a ‘manoeuvre’, or an ‘entente’, in
Cristi’s words, between conservatism and liberalism.95 This is why in
some instances Cristi is able to argue that Schmitt ultimately remained a
conservative thinker. Exactly because his reconciliation with liberalism
was just a matter of pragmatic ‘accommodation’, this ‘does not imply that
he ever intended to give up his early revolutionary stance’, which
‘remained essentially unchanged’.96 But by stressing the instrumental and
utilitarian dimension of this move and the technical character of an
alliance between two heterogeneous and external political doctrines,
Cristi considerably undermines his meta-narrative of an intrinsic proxim-
ity between liberalism, authoritarianism and Nazism. In this case, the
more ambitious theoretical claim about the authoritarian nature of
liberalism breaks down.97

108
Therefore, in order to present a convincing case for the substantive
and self-sufficient nature of authoritarian liberalism, Cristi needs to
advance an argument reminiscent of Leo Strauss, namely that Schmitt
always remained within the liberal horizon.98 For Cristi, not only do the
origins of Schmitt’s concept of the total state belong to ‘the liberal ances-
try’, but also, despite his conservatism, Schmitt ‘remained tied to liberal
assumptions’ that he never abandoned, not even when he embraced
Nazism. Quite the contrary: it is precisely because of these assumptions
that he decided to support the ascendancy of National Socialists to
power and to justify it in legal terms.99 Therefore, the choices Schmitt
made and the propositions he advanced are not excluded from the liberal
framework. In fact, they take place in the terms allowed by that frame-
work and point to its authoritarian core, which comes to the surface
each time the liberal order is faced with a challenge from the left. Much
like F. A. Hayek and Ludwig von Mises, Schmitt reveals the dangerous
anti-democratic and authoritarian possibilities of liberalism. Cristi’s
critical refutation of Schmitt should therefore be seen as an implicit cri-
tique of liberalism.
But Cristi cannot have it both ways.100 Indeed, it appears that Schmitt
held two entirely antagonistic views of liberalism. In the first place, he
criticized liberalism only when it adopted a substantive, political position.
Once he realized that the political dimension of liberalism was due to
external democratic influence, he could endorse a de-politicized, neutral
and rather harmless version of liberalism, appropriate for the justification
of a free market economy that would leave room for an autonomous,
authoritarian executive state to monopolize the field of politics.101 In
other words, Schmitt rejected political liberalism but felt quite comfort-
able with economic liberalism. At the same time, however, Cristi sur-
prisingly attributes to Schmitt a completely opposing critique. Schmitt,
driven by a nostalgia for an old polemical liberalism that he considered
‘open to the political’, inaugurated an attack against the a-political,
neutral and procedural liberalism of his days, which he deemed ‘incapable
of accommodating the political’.102 Cristi goes even further, asserting that
Schmitt actually upheld a ‘substantive Rechsstaat’ against the ‘formal
Rechsstaat’ and contended that ‘a well-ordered liberal society was one
founded on substantive values’.103 In this second account, Schmitt’s
project aimed at the re-politicization of liberalism and the revitalization
of its substantive core principles. Thus, Schmitt simultaneously sub-
scribed to two fully opposing views – that ‘liberalism was objectionable
only when it assumed a political stance’ but also that ‘deprived of a
Weltanschauung, liberalism lost its capacity to make political decisions
and succumbed to relativism and agnosticism’ – and sought to realize two
incompatible political objectives: to keep liberalism ‘at a clear distance
from any political form’ and to develop a ‘substantive conception of the

109
[liberal] Rechsstaat’ that would not negate the state but instead would
intransigently protect its substantive values of private property and ‘nega-
tive’ freedoms.104
Cristi’s oscillations mirror his underlying motivation to impute to
Schmitt a stark and uncompromised anti-democratic stance. Although
there is no doubt that Schmitt rejected a participatory version of demo-
cracy and in many instances tried to contain and to restrict the impact
of democratic politics, it cannot be denied, as Cristi acknowledges, that
Schmitt formulated powerful conceptual tools with respect to his
concept of the constituting power of the community that other jurists of
his time were not willing to accept. In fact, as Klein confirms, ‘we have
to concede that Schmitt amply contributed in refocusing the debate not
only on the constitution, but also on the constituent power’ during a
time that German mainstream jurisprudence had completely ignored
it.105 With a few exceptions, it is Schmitt who truly recovered the
concept of constituent power from oblivion and if one accepts Ernst-
Wolfgang Bockenforde’s argument that ‘the concept of the constituent
power is, because of its origin as well as of its content, a democratic
and revolutionary concept, that belongs solely to the context of a demo-
cratic constitutional theory’,106 then Schmitt’s political theory can be
approached from a perspective different from the one proposed by
Cristi. In fact, by relocating the sources of the constituting power from
the dethroned King to the People, Schmitt advanced one of the most
radical accounts of popular sovereignty and democratic legitimacy in
contemporary political theory that can hardly be found even in explicit
democrat thinkers. As Andrew Arato has correctly pointed out, Schmitt’s
reconstruction of Sieyès’s concept of le pouvoir constituant hinges on
left-wing radicalism and a radical revolutionary position despite its
explicit plebiscitarian form.107
Cristi is correct in pointing out that Schmitt struggled to weaken the
creative form-giving power of the collectivity and to contain the power
of a politically conscious people that he had previously inserted in the
organizational matrix of his constitutional theory. He is rather mistaken,
however, when he deliberately avoids addressing Schmitt’s reconstruc-
tion of the notion of a constituent total political decision as the surro-
gate for the self-institution of the social. Not only does he misconstrue
Schmitt’s distinction between legality and legitimacy as one between
democracy and liberalism, where the rule of law is attributed to the first
and the promulgation of substantive values to the second,108 but he also
misses the potential consequences of Schmitt’s notion of constituent
power for democratic theory.109 Without adhering to his plebiscitarian,
presidential solution, one can extract the concept of a sovereign, insti-
tuting popular decision and elucidate its relationship with participatory
and deliberative forms of radical democracy as well as its undeveloped

110
potential for a reconceptualization of the form and content of a demo-
cratic constitution.110 Two central questions emerge from this reading:
first, how to expand the notion of the sovereign subject so as to encom-
pass various political positions related by common democratic aspir-
ations while avoiding a regression to the mythical invocation of a
macro-subject, and second, how to create those social institutional
instances that will give a concrete deliberative aspect to the manifes-
tation of constituent power and will imbue popular decisions with a nor-
mative content.111 An engagement with these two questions could
suggest ways of extirpating constitutionalism from its liberal origins and
take it in a democratic direction.
IV
‘I do not know’, Thibaudeau ironically exclaimed in the midst of the
constitutional experiments of 1795 from the Parisian newspaper Le
Moniteur, ‘what these everyday discussions about a democratic consti-
tution mean. Do they mean by that a government in which the people
exercises all its rights by itself?’112 It has been the central assumption of
this paper that a new, original reading of Schmitt’s work could suggest
ways to begin to answer this question that has tormented modern demo-
cratic theory since its inception. With this general suggestion, I conclude
my critical presentation of the most recent attempts to provide a fresh
and more comprehensive interpretation of Schmitt’s political and consti-
tutional theory free from the mere apology and sheer polemics of the
past. My purpose has been to point to their strengths as well as their
limitations, limitations that I tried to locate partly in an underlying
adversarial logic of pure refutation and condemnation and partly in an
unwillingness to take Schmitt’s engagement with democratic theory
seriously. Against McCormick’s, Caldwell’s and Dyzenhaus’ sterile ap-
proaches that insist on holding onto the image of Schmitt as an enemy
of liberalism and constitutionalism, I have sought to argue that Schmitt’s
attempt to recover and reconstruct the concept of the constituting power
of the sovereign will as the source of a self-instituted political community
can have major ramifications for contemporary democratic theory.113
Although Cristi’s work proposes a more serious and intelligent interpre-
tation of Schmitt, which avoids the trap of demonization and succeeds
in illuminating his deeply political motivations, it nonetheless reduces
Schmitt to an intransigent anti-democrat, missing thus important con-
ceptual innovations ingrained in his constitutional and political theory.
Much like Cristi, I have tried to suggest that Schmitt conceptualized and
appreciated more incisively than any other thinker of his time the politi-
cal importance of the ‘apocryphal acts of sovereignty’; unlike Cristi,

111
however, I believe that with this emphasis on the indeterminate surging
forth of new forms, institutions, norms and laws from the creative will
of the people’s decision, Schmitt has made some timely, though under-
developed and thus overlooked, contributions to contemporary norma-
tive political thought and to a theory of democratic legitimacy.114 It is
not possible to address them here. The limits of the present discussion
do not afford me more than a series of broadly sketched propositions,
which need careful elaboration elsewhere.
To begin with, Schmitt’s rescue of the category of constituent power
from oblivion provides us with the necessary theoretical resources for a
fresh reconstruction of the emancipatory content of radical democracy.
Following Antonio Negri’s assertion that ‘to talk about the constituent
power is to talk about democracy’,115 I approach Schmitt’s work from
the vantage point of his understanding of the sovereign as the one that
carries the constituent power of a society. Given this definition, Schmitt’s
theory represents today one of the most promising efforts to reinscribe
political autonomy within contemporary democratic discourses, given
its neutralization at the hands of individualistic, formal and abstract
liberal doctrines and its deconstruction by postmodernism. What can
Schmitt’s theoretical framework tell us about the possibility of a demo-
cratic constitution?116 How can his work generate those conceptual
resources for the redefinition of a substantive idea of political freedom?
I think that there are many unexplored possibilities to be revealed by
properly answering these questions, which are totally neglected in the
most recent discussions of Schmitt.117 Redefined as the lucid and explicit
self-institution of society and enriched with recent investigations on
deliberation, his concept of the constituent, sovereign total decision118
can be reconceptualized in terms of radical politics as the reflective
struggle of organized entities to appropriate greater amounts of the insti-
tuting power with a view toward transforming the instituted, capitalist
relations of domination and inequality.119 Likewise, the concept of the
constitution could shift from its more standard and usual conceptualiz-
ation as a complex institutional mechanism designed to limit democratic
power and to protect minorities from majoritarian excesses to an insti-
tutional embodiment of the collective will and a concretization of sub-
stantive democratic values.
Second, given the lack of a democratic theory of law, Schmitt’s explo-
rations could be proven particularly useful in this respect. In fact, if one
attributes the historical failure of radical models of democracy to, among
other things, the absence of a systematic reflection on institutions, rules
and norms,120 an absence that permitted liberalism to monopolize the
field of modern legal and constitutional theory, then Schmitt’s work can
form the starting-point for rethinking issues bearing on the relationship
between law and democracy. With the early emblematic exception of

112
Rousseau, democratic theory has never seriously considered the conse-
quences resulting from the displacement of the source of sovereignty from
the King to the People and has thus overlooked the crucial significance
of the institutional and juridical parameters of a stable democratic
order.121 This deficit has created the impression that while democratic
theory is exclusively related to the question of how to generate legitimate
political power, it has totally ignored the equally critical question of how
to stabilize and contain this power, a question confronted predominantly
by liberal thinkers. A selective engagement with Schmitt could rectify this
deficiency.122
Third, from this particular reconstruction of democracy, one can chal-
lenge the one-sided proceduralist approaches adopted by the main cur-
rents of contemporary political thought. Schmitt proposed a substantive
model of democracy, which, properly reformulated, could become more
open to participatory forms of popular intervention. His defense of a sub-
stantive version of democratic sovereignty helps expose the difficulties
prompted first by recent efforts to empty, weaken and neutralize demo-
cracy by reducing it to the ‘fact of plurality’, thereby separating it from
its egalitarian and participatory content, and second by the attempt of
communitarians to monopolize any project aiming at a substantive rede-
finition of democracy. Rejecting the formalism and abstractness of mere
legality, Schmitt argued for a political and polemical form of democracy.
There is a particular substance, he claimed, distinctive of any democratic
society, namely political equality. Thus, to see procedures as neutral is to
fall victim to liberal illusions. Procedures are inherently related to the aims
and projects of a political community. They are segments of its central
social significations, instituted not as mere ‘means’ but as a moment in
the embodiment and facilitation of the processes that brought that regime
into being. Institutions do not exist in a vacuum. They are political cre-
ations, always already immersed in pre-given values and determinations,
embodying the predominant, hegemonic goals of their society, and are
dependent on prior political decisions.
These rather hasty remarks on the most recent literature on Schmitt’s
work far from exhaust the possible ways in which Schmitt’s prolific work
can be productively appropriated. I sought to demonstrate the signifi-
cance of Schmitt’s search for a viable point of articulation between a
genuine form-giving activity of the multitude, the sovereign decision,
and a democratic theory of power. At least one sure conclusion may be
advanced at this time, namely that this articulation which points at the
core of democratic politics has permitted Schmitt to retrieve from
modern theories of constitutionalism those ‘apocryphal acts of sover-
eignty’ that, appropriately reconstructed, could reinvigorate the eman-
cipatory content of modernity.123 As Cristi has persuasively established,
Schmitt brought these apocryphal manifestations from the margins of

113
normal everyday politics to the center of his constitutional theory.124
Thus, his work constitutes a promising starting point for the revitaliza-
tion of a democratic theory with a radical content. Schmitt’s consti-
tutional and political writings, based on the seminal concept of the
constituting power of the sovereign popular subject and on the creative
capacity of society to institute itself, ought to be taken more seriously.
Columbia University, Department of Political Science, New York, NY,

USA
PSC
Notes
I would like to thank Andrew Arato, Jean Cohen, Anne Kornhauser, and Steven
Bourke for their helpful comments and suggestions.
1 Emmanuel Sieyès, ‘Reconnaisance et exposition raisonée des droits de

l’homme et du citoyen’, in François Furet et Ran Halevi (eds) Orateurs de
la révolution française, Vol. I, Les constituants (Paris: Gallimard, 1989),
p. 1013.
2 G. W. F. Hegel, Elements of the Philosophy of Right, ed. Allen W. Wood,
trans. H. B. Nisbet (Cambridge: Cambridge University Press, 1991), #
275, p. 313.
3 Many recent monographs have attempted to account for this phenomenon
and to explore the particular political and historical causes of Schmitt’s
unexpected return. Paul Piccone and Garry L. Ulmen, ‘Introduction to
Carl Schmitt’, Telos 72 (Fall 1987); Ulrich K. Preuss, ‘Political Order and
Democracy. Carl Schmitt and his Influence’, in Leszek Nowak and Martin
Paprzycki, Social System, Rationality, and Revolution (Amsterdam and
Atlanta, GA: Rodopi, 1993); Bernhard Schlink, ‘Why Carl Schmitt?’,
Constellations 2(3) (1996); Ernst-Wolfgang Bockenforde, ‘Schmitt
Revised’, Telos 109 (Fall 1996).
4 This welcome recognition is best exemplified by Telos. See Telos 72
(Summer 1987), 102 (Winter 1995) and 109 (Fall 1996).
5 Jürgen Habermas, ‘Sovereignty and the Führerdemokatie’, Times Literary
Supplement (26 September 1986); ‘The Horrors of Autonomy: Carl
Schmitt in English’, in The New Conservatism. Cultural Criticism and the
Historians’s Debate (Cambridge, MA: MIT Press, 1992); ‘Carl Schmitt in
the Political Intellectual History of the Federal Republic’, in A Berlin
Republic: Writings on Germany (Lincoln: University of Nebraska Press,
1997); Stephen Holmes, ‘Carl Schmitt: Theorist of the Reich’, American
Political Science Review 77(4) (1983); Mark Lilla, ‘The Enemy of Liberal-
ism’, New York Review of Books XLIV(8) (15 May 1997).
6 George Schwab, The Challenge of the Exception: An Introduction to the
Political Ideas of Carl Schmitt between 1921 and 1936 (New York:

114
Greenwood Press, 1970); Joseph W. Bendersky, Carl Schmitt: Theorist of
the Reich (Princeton, NJ: Princeton University Press, 1983); Paul
Gottfried, Carl Schmitt: Politics and Theory (New York: Greenwood
University Press), 1990.
7 This is a mistake that besets many secondary works on Schmitt published
in the last decade. See, for example, Stephen Holmes, ‘Schmitt: The
Debility of Liberalism’, in The Anatomy of Antiliberalism (Cambridge,
MA: Harvard University Press, 1993); Charles Larmore, ‘Carl Schmitt’s
Critique of Liberal Democracy’, in The Morals of Modernity (Cambridge:
Cambridge University Press, 1996); William Scheuerman, ‘The Rule of
Law under Siege: Carl Schmitt and the Death of the Weimar Republic’,
History of Political Thought XVI(2) (Summer 1993); Between the Norm
and the Exception: The Frankfurt School and the Rule of Law
(Cambridge, MA: MIT Press, 1994); and the ‘Introduction’, in The Rule
of Law under Siege: Selected Essays of Franz L. Neumann and Otto Kirch-
heimer (Berkeley: University of California Press, 1996); ‘Legal Indetermi-
nacy and the Origins of Nazi Legal Thought: The Case of Carl Schmitt’,
History of Political Thought XVII(4) (1996).
8 McCormick, Carl Schmitt’s Critique of Liberalism, pp. 80–1.
9 ibid., pp. 4–6, 25, 203, 207.
10 ibid., p. 58.
11 Although McCormick is reluctant to call Schmitt a critical theorist of
modern culture like Adorno and Horkheimer, his reading, nonetheless,
implicitly moves in this direction. Indeed, Schmitt’s work appears as a
right-wing version of critical thought that needs to be fully rejected. ibid.,
p. 17.
12 McCormick’s arguments rely heavily on and in some cases even reproduce
the claims of Jeffrey Herf, Richard Wolin and Ellen Kennedy. Herf has
labeled Schmitt a radical, ‘right-wing Weberian’ and although his substan-
tive argument is opposed to McCormick’s there are some striking simi-
larities. Wolin was one of the first to advocate a Nietzschean interpretation
of Schmitt in the English-speaking world and to disseminate the view of
Schmitt as an existential, irrational and Nazi thinker, a position that
McCormick has uncritically adopted as his starting-point. The affinities
between Schmitt and the Frankfurt school were merely investigated by
Kennedy, who considers Schmitt’s critique of liberalism to be ‘fundamen-
tally metaphysical and cultural’. Her approach initiated a heated debate
in the pages of Telos. Ellen Kennedy, ‘Carl Schmitt and the Frankfurt
School’, p. 39; Martin Jay, ‘Reconciling the Irreconcilable? Rejoinder to
Kennedy’; A. Sollner, ‘Beyond Carl Schmitt: Political Theory in the
Frankfurt School’; and Ulrich Preuss, ‘The Critique of German Liberalism:
Reply to Kennedy’: Telos, 71 (1987). See also Jeffrey Herf, Reactionary
Modernism: Technology, Culture, and Politics in Weimar and the Third
Reich (Cambridge: Cambridge University Press, 1984), p. 118; Richard
Wolin, ‘Carl Schmitt, Political Existentialism and the Total State’, Theory
and Society 19(2) (1990) and ‘Carl Schmitt, the Conservative Revol-
utionary Habitus and the Aesthetics of Horror’, Political Theory 20(3)
(1992).

115
13 McCormick, Carl Schmitt’s Critique of Liberalism, p. 83. McCormick also
draws extensively on Habermas who spoke about ‘the Nietzsche reception
of the twenties, down to Gottfried Benn, Carl Schmitt, Ernst Junger’, a
generation that Habermas imprudently characterizes as ‘one not only
bewitched but instructed by Nietzsche’. See Jürgen Habermas, Legitima-
tion Crisis (Boston, MA: Beacon Press, 1973), p. 122 and ‘Introduction’,
Observations on the ‘Spiritual Situation of the Age’ (Cambridge, MA:
MIT Press, 1985), p. 24.
14 On one occasion Schmitt characterizes Nietzsche as one of the three
‘priests of despair’ who ‘frenetically plunges into the abyss of instinct and
life’, the three whose ‘deformed visages penetrate the colorful romantic
veil . . . the three high priests, and at the same time, the three sacrificial
victims, of this private priesthood’. The other two are Byron and Baude-
laire. In another context Schmitt proudly asserts against Nietzsche and
Weber that Roman rationalism ‘knowingly and magnificently succeeded
in overcoming Dionysian cults’. For the first see Political Romanticism
(Cambridge, MA: MIT Press, 1986), p. 20 and for the second Roman
Catholicism and Political Form (Westport, CT: Greenwood Press, 1996),
p. 14.
15 Take, for example, McCormick’s assertion that Schmitt appropriated the
allegory of the Antichrist from Nietzsche. This is a highly questionable
claim. First, for Nietzsche the image of the Antichrist had a positive conno-
tation that he applied either to himself or to Dionysus as part of his attack
on Western Christianity. For Schmitt it was a pejorative symbol that he
most probably took from the rich tradition of Catholic hostility to science
and technology. Second, for Nietzsche, Christianity was the main cause of
European nihilism, while for the young Schmitt it was exactly the opposite:
secularization and the retreat of the divine Other from the earthly world
of the humans was the main driving force responsible for the decay of
European Christian civilization. Third, McCormick does not pay sufficient
attention to the Catholic aspects of Schmitt’s work. It is worth asking how
a thinker who was formed by Catholicism could have been at the same
time a Nietzschean. McCormick falls into the paradoxical situation of
simultaneously labeling Schmitt as both a Thomist and a Nietzschean! In
order to underplay this crucial difference, McCormick proposes some very
unconvincing arguments, as, for example, that for Nietzsche, the positive
image of the Antichrist appears only in the last days of Nietzsche’s healthy
life. As he puts it: ‘in his last days, as whatever was left of his sanity and
his life slipped away, he randomly identifies himself in his letters with
Christ or the Antichrist.’ A careful reading shows that this allegory
emerges in Nietzsche’s mature writings. McCormick, Carl Schmitt’s
Critique of Liberalism, p. 112.
16 Needless to say, in those cases in which Schmitt denounces the mechanical
and technical as demonic he simply reproduces traditional Catholic
arguments against materialism and excessive rationalism that led to a
faithless world. There is no need to search for traces of Nietzsche. Well
before him, Catholics were famous for their hostility to science, which they
constantly attacked. Does one need to be a Nietzschean to ‘excommunicate’

116
science’s practitioners? For an investigation of the role of Catholicism in
Schmitt’s thought, see Paul Noack, Carl Schmitt: Eine Biographie (Berlin:
Propylaen, 1993); Heinrich Meier, Carl Schmitt and Leo Strauss: The
Hidden Dialogue (Chicago, IL and London: University of Chicago Press,
1995); and The Lesson of Carl Schmitt: Four Chapters on the Distinction
between Political Theology and Political Philosophy (Chicago, IL: Chicago
University Press, 1998).
17 Strangely enough, in another context, McCormick argues that Schmitt’s
early work was characterized by ‘neo-Kantian attempts to keep his
authoritarian tendencies within a rule of law framework’. See McCormick,
‘The Dilemmas of Dictatorship: Carl Schmitt and Constitutional
Emergency Powers’, Canadian Journal of Law and Jurisprudence X(1)
(January 1997): 174.
18 McCormick, Carl Schmitt’s Critique of Liberalism, p. 84.
19 Recently, for example, Wolfgang Schluchter has argued that there is much
textual evidence to ‘demonstrate his [Weber’s] extremely critical stance
toward Nietzsche’ and said that ‘the fact that he [Weber] does not agree
with Nietzsche on crucial points concerning methodology, the reconstruc-
tion of the genealogy of Occidental rationalism, the estimation of the
cultural significance of the modern science of reality, and value theory, is
precisely what keeps Weber relevant today’. Instead of ‘searching for clues
as in the case of Nietzsche’, Schluchter proposes that we should concen-
trate on ‘Kant [who] pervades Weber’s entire work’. See Wolfgang
Schluchter, Paradoxes of Modernity. Culture and Conduct in the Theory
of Max Weber (Stanford, CA: Stanford University Press, 1996), pp. 282,
289. Jürgen Habermas made the same point a decade earlier claiming that
‘Weber himself stands in the tradition of Southwest German Neo-Kantian-
ism’. See Jürgen Habermas, The Theory of Communicative Action:
Reason and the Rationalization of Society, Vol. I (Boston, MA: Beacon
Press, 1984), p. 154.
20 Gary Ulmen has more cautiously qualified Schmitt’s relationship to Weber
as ‘ambiguous’. See Gary Ulmen, ‘The Sociology of the State: Carl Schmitt
and Max Weber’, State, Culture, and Society 1 (1985): 14.
21 Of course McCormick faithfully and uncritically reproduces Habermas’
infamous characterization of Schmitt as ‘a “legitimate pupil” of Weber’s’.
See McCormick, Carl Schmitt’s Critique of Liberalism, pp. 76, 58 and
Habermas in Otto Stammer (ed.) Max Weber and Sociology Today
(Oxford: Basil Blackwell, 1971), p. 66.
22 For a classical statement of this thesis, see Wolfgang Mommsen, Max
Weber and German Politics, 1890–1920 (Chicago, IL and London:
University of Chicago Press, 1984), pp. 381–9 and The Political and Social
Theory of Max Weber (Chicago, IL: University of Chicago Press, 1992),
p. 171. Rune Slagstad has also reproduced this misinterpretation. See
‘Liberal Constitutionalism and its Critics’, in John Elster and Rune
Slagstad (eds) Constitutionalism and Democracy (Cambridge: Cambridge
University Press, 1993), p. 126.
23 McCormick, Carl Schmitt’s Critique of Liberalism, p. 135.
24 In fact, Schmitt referred to charisma with a subtle, apathetic irony in

117
order to validate his theory of the secularization of political concepts.
First, for McCormick the only link between charisma and the sovereign
is Schmitt’s description of the exception as a miracle. But he shuts his eyes
to Schmitt’s interpretation of the theological origins of this concept,
which has nothing to do with the legitimation of the sovereign decision.
In a much later text, Schmitt coldly asserted that charismatic legitimacy
‘is nothing else than a derivation of a secularized Protestant theology, a
deformation of an original theological image. In fact, in the New
Testament, the charismatic legitimacy of the Apostle Paul remains the
theological origins of whatever Max Weber did say as a sociologist about
the theme of charisma.’ Carl Schmitt, Politische Theologie II. Die
Legende von der Erledigung jeder Politischen Theologie (Berlin: Duncker
& Humblot, 1970), pp. 41–2. Here, lies a crucial difference. Whereas
Weber lacked a theory of democratic legitimacy that he subordinated
either to legal legitimacy or to charismatic legitimacy, Schmitt openly
advocated and promoted a democratic principle of legitimation. The
belief that Schmitt’s notion of the sovereign is another version of charis-
matic rule misses this fundamental distinction. Second, in Roman
Catholicism, Schmitt explicitly criticizes Weber by insisting that ‘the Pope
is not the Prophet but the Vicar of Christ. Such a ceremonial function
precludes all the fanatical excesses of an unbridled prophetism. The fact
that the office [i.e. of the Pope] is made independent of charisma signifies
that the priest upholds a position that appears to be completely apart
from his concrete personality.’ Schmitt, Roman Catholicism and Political
Form, p. 14.
25 Schmitt, Roman Catholicism and Political Form, p. 52.
26 Schwab, The Challenge of the Exception, pp. 71, 51 f.
27 Carl Schmitt, The Crisis of Parliamentary Democracy (Cambridge, MA:
MIT Press, 1992), p. 4.
28 John Rawls, A Theory of Justice (Cambridge, MA: Harvard University
Press, 1972) p. 86.
29 McCormick, Carl Schmitt’s Critique of Liberalism, pp. 136, 183, 184.
30 As early as 1925, Richard Thoma understood the nature of Schmitt’s
intentions, suggesting that behind his critique of liberalism ‘stands the
unexpressed personal conviction of the author that an alliance between a
nationalistic dictator and the Catholic Church could be the real solution
and achieve a definitive restoration of order, discipline, and hierarchy’. See,
Thoma, ‘On the Ideology of Parliamentarism’, in Schmitt, The Crisis of
Parliamentary Democracy, p. 82. Curiously enough, McCormick cites this
quotation without realizing that it undermines his own interpretation
about the relationship between liberalism and technology.
31 Schmitt, ‘The Age of Neutralizations and Depoliticizations’, Telos, 96
(1993): 134, 140.
32 ibid., p. 141.
33 Garry Ulmen has correctly distinguished between Schmitt’s concept of
neutralization and Weber’s notion of rationalization, a crucial distinction
that is suppressed in McCormick’s reading. Ulmen, ‘The Sociology of the
State: Carl Schmitt and Max Weber’, p. 28.

118
34 Ulmen, ‘The Sociology of the State: Carl Schmitt and Max Weber’, pp.
33–4.
35 Schmitt, ‘The Age of Neutralizations and Depoliticizations’, p. 138.
36 ibid., pp. 139–40, 141, and Schmitt, The Concept of the Political, trans.
George Schwab (New Brunswick, NJ: Rutgers University Press, 1976), p.
76.
37 Note that here McCormick borrows extensively from Habermas’ repudi-
ation of Schmitt, according to which ‘it is the aesthetics of violence that
fascinates him [i.e. Schmitt]. Interpreted on the model of creation ex nihilo,
sovereignty acquires a halo of surrealistic meanings through its relation-
ship to the violent destruction of the normative as such.’ Needless to say,
Habermas’ interpretation of Schmitt shares this same surrealistic note.
Habermas, ‘The Horrors of Autonomy: Carl Schmitt in English’, p. 137.
38 McCormick, Schmitt’s Critique of Liberalism, p. 285.
39 ‘The concern here is neither with abstraction nor with normative ideas,
but with the inherent reality and the real possibility of such a distinction
[i.e. the friend/enemy distinction].’ Schmitt, The Concept of the Political,
p. 28.
40 Ernesto Laclau and Chantal Mouffe have best followed this line. See E.
Laclau and C. Mouffe, Hegemony and Socialist Strategy: Towards a
Radical Democratic Politics (London and New York: Verso, 1992). As
Laclau has forcefully argued, ‘the crucial point is that antagonism is the
limit of all objectivity. This should be understood in its most literal sense:
as the assertion that antagonism does not have an objective meaning, but
is that which prevents the constitution of objectivity itself. . . . With
antagonism, denial does not originate from the “inside” of identity itself
but, in its most radical sense, from outside; it is thus pure facticity which
cannot be referred back to any underlying rationality. . . . With antagon-
ism . . . it is not my identity which is expressed, but the impossibility of
its construction. The antagonizing force denies my identity in the strictest
sense of the term. The “outside” is thus a radical outside, without a
common measure with the “inside”.’ Ernesto Laclau, New Reflections on
the Revolution of Our Time (London and New York: Verso, 1990),
pp. 17, 18. Tracy Strong too has recognized this dimension of the
friend/enemy distinction. As he rightly notes, ‘the concrete recognition of
the other as an enemy and the consequent establishment of one’s own
identity sounds something like Hegel’s Master and Slave, especially if
read through a Kojevian lens’. Tracy Strong, ‘Foreword: Dimensions of
the Debate around Carl Schmitt’, in his The Concept of the Political
(Chicago. IL: University of Chicago Press, 1996), p. xx (all references from
The Concept of the Political are taken from the first edition of 1976).
See also Gunter Figal, For a Philosophy of Freedom and Strife: Politics,
Aesthetics, Metaphysics (New York: State University of New York Press,
1998).
41 Schmitt, The Concept of the Political, p. 26 (emphasis added).
42 ibid., p. 63. The notion of the ‘constitutive outside’ was introduced by
Henry Staten in Wittgenstein and Derrida (Lincoln and London:
University of Nebraska Press, 1984), pp. 16–19. This is due to the fact

119
that Derrida himself attributes a constructive and positing role to the
exclusion as a ‘supplement’ of the unity and identity of an object.
43 McCormick, Carl Schmitt’s Critique of Liberalism, pp. 5, 314. Here I
would like to note that although this interpretation explicitly aims at the
foundations of Schmitt’s political ideas, it does not exhaust McCormick’s
intentions. Indeed, his underlying target goes well beyond Schmitt.
McCormick’s goal is to expose, through his critique of Schmitt, the
‘drawbacks of Weberian social science’ and to call attention to the urgent
need for any ‘critical social and political theory today’ to break away from
this tradition, of which Schmitt is only one of ‘its most radical discontented
practitioners’. Thus, paradoxically enough, McCormick’s book ends with
an unexpected refutation of Weber as a necessary step for the revitaliza-
tion of the tradition of critical theory! ibid., p. 313.
44 Caldwell, Popular Sovereignty and the Crisis of German Constitutional
Law, pp. 96–7.
45 ibid., p. 100.
46 Pasquale Pasquino, ‘Die Lehre vom “Pouvoir Constituant” bei Emmanuel
Sieyes und Carl Schmitt’, in Helmut Quaritsch (ed.) Complexio Opposi-
torum: Uber Carl Schmitt (Berlin: Duncker & Humblot, 1988).
47 Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty
(Cambridge, MA: MIT Press, 1988), p. 51.
48 ibid., pp. 48, 49.
49 Ulrich Preuss, ‘Constitutional Powermaking for the New Polity: Some
Deliberations on the Relations between Constituent Power and the Consti-
tution’, Cardozo Law Review 14 (3–4) (1993): 14.
50 Schmitt, Die Dickatur (Berlin: Duncker & Humblot, 1994), p.142.
51 Caldwell, Popular Sovereignty, pp. 117, 119.
52 Schmitt, The Crisis of Parliamentary Democracy, p. 16.
53 ibid., p. 27.
54 ibid., p. 29.
55 Antonio Gramsci, Selections from the Prison Notebooks, ed. Quintin
Hoare and Geoffrey Nowell Smith (New York: International Publishers,
1971), pp. 235–9.
56 This accounts also for the differences between Schmitt and traditional
nationalists. While the latter venerated the nation as an unquestionable,
given value, the former recognized that the nation is just one possible
manifestation of the different forms that this unity can take, alongside
class, race and religion.
57 By refusing to problematize the existence of hierarchical and heteronomous
relationships among different groups and to consider how these relation-
ships affect political outcomes, one is proposing another version of a modus
vivendi. Democratic politics becomes reduced to the procedural outcome
of unequal power relations. Compromises are situational, the result of
power differences among the actors. What emerges as the result of political
conflicts amounts to what the stronger group or alliance of groups has
succeeded in imposing.
58 Daniel Lazare, ‘America the Undemocratic’, New Left Review 232
(November/December 1998): 27.

120
59 Carl Schmitt, Verfassungslehre (Berlin: Duncker & Humblot, 1989), pp.
49–50.
60 B. Manin, The Principles of Representative Government (Cambridge:
Cambridge University Press, 1997), pp. 150–1.
61 Dyzenhaus, Legality and Legitimacy, pp. 51–2.
62 ibid., pp. 65, 69.
63 ibid., pp. 66, 94.
64 ibid., p. 46.
65 ibid., p. 164.
66 Hermann Heller, in Caldwell, Popular Sovereignty, p. 235.
67 This claim has been made by Kennedy, ‘Carl Schmitt and the Frankfurt
School’.
68 Dyzenhaus, Legality and Legitimacy, pp. 96–7.
69 Carl Schmitt, Der Huter der Verfassung (Berlin: Duncker & Humblot,
1996), pp. 132–49. The intriguing relationship between Schmitt and
Benjamin Constant, one of the most eminent liberal thinkers of the 19th
century, has not yet been discussed.
70 Schmitt, Verfassungslehre, pp. 20–1.
71 Claude Klein has made an explicit effort to abate, and thus to banalize,
the radical and originating dimension of constituent power by equating it
with the legislative capacity of constitutional revision. See C. Klein,
Théorie et pratique du pouvoir constituant (Paris: PUF, 1996), p. 188.
72 Schmitt’s arguments also are unusually close to Rawls’ own attempt to
keep the two principles of justice as fairness away from everyday politics.
For Rawls’ project, see his discussion of the principle of finality in A
Theory of Justice, pp. 153, 175–8, 569 and his argument regarding the
‘constitutional essentials’ in Political Liberalism (New York: Columbia
University Press, 1993), pp. 227–30.
73 Schmitt, Verfassungslehre, pp. 25–6.
74 Klein, Théorie et pratique du pouvoir constituant, p. 149. There is also an
important similarity between Schmitt’s distinction between the consti-
tution and constitutional laws and Kelsen’s differentiation between formal
and material law. See Hans Kelsen, Pure Theory of Law (Berkeley:
University of California Press, 1967), pp. 230–2.
75 Jürgen Habermas, ‘Struggles for Recognition in the Democratic Consti-
tutional State’, in The Inclusion of the Other: Studies in Political Theory,
ed. Ciaran Cronin and Pablo De Greiff (Cambridge, MA: MIT Press,
1998), pp. 224–5.
76 Schmitt, Verfassungslehre, p. 215.
77 Hannah Arendt, On Revolution (Harmondsworth, Mx: Penguin Books,
1963) and Cornelius Castoriadis, Philosophy, Politics, Autonomy, ed.
David Ames Curtis (New York: Oxford University Press, 1991).
78 Schmitt, Verfassungslehre, p. xii.
79 Bruce Ackerman’s theory of dual politics represents a brilliant exception
to this general tendency. See, Ackerman, We the People: Foundations
(Cambridge, MA: Belknap Press of Harvard University Press, 1991), pp.
230–325.
80 In fact, Heller walked an explicit nationalist path and went much further

121
than Schmitt in his effort to develop a social democratic politics of
nationalism. From the idea of substantive equality and homogeneity he
derived the substantive idea of the nation as the real, collective foundation
of socialism. Heller defined the national community according to some
natural and given national characteristics common to the entire people,
like ‘soil’ and ‘blood’. These biological connotations are disturbingly
visible especially in his belief in the solidification of the blood. Needless to
say, Dyzenhaus in his effort to turn Schmitt into a principled fascist and
Heller into a committed social democrat underplays the significance of
these elements. See Heller in Caldwell, Popular Sovereignty, p. 236.
81 Dyzenhaus, Legality and Legitimacy, p. 5. Dyzenhaus has repeated these
unfounded characterizations in his introduction to the volume of collected
essays he edited on Schmitt. See David Dyzenhaus, ‘Introduction: Why
Carl Schmitt?’ in David Dyzenhaus (ed.) Law as Politics: Carl Schmitt’s
Critique of Liberalism, with a foreword by Ronald Beiner (Durham, NC
and London: Duke University Press, 1998), pp. 11–17.
82 It is no surprise, therefore, that at the end in his own attempt to overcome
the impasses that Habermas’ proceduralism has bequeathed to democratic
theory he reproduces Heller’s inability to find a proper balance between
legality and legitimacy. An inability ‘fraught with ambiguity’, it is far from
solving the tension between procedure and substance, form and content,
law and ethics, is and ought. Dyzenhaus, Legality and Legitimacy, pp. 95,
101, 211, 213–17.
83 McComick too takes a leftist position, but aside from a few isolated and
quite rhetorical fragmentary references to the relationship between fascism
and liberalism he remains silent about the nature of their intersection. Is
it one of logical necessity or of accidental encounter? See McCormick, Carl
Schmitt’s Critique of Liberalism, pp. 10, 14. Only Cristi directly addresses
this question.
84 Cristi, Carl Schmitt and Authoritarian Liberalism, p. 20.
85 ibid., pp. 149–50, 204.
86 ibid., p. 192.
87 ibid., pp. 207, 210.
88 ibid., p. 5.
89 ibid., p. 211. Cristi’s reading relies heavily on Karl Marx’s perceptive
analysis of the Bonapartist state and on Nikos Poulantzas’ theory of the
relative autonomy of the capitalist state, which by keeping a distance
from the material interests of the dominant class, is better able to protect
and reproduce the existing relations of domination and exploitation of a
bourgeois society. Cristi’s central thesis is also close to Herbert
Marcuse’s, Franz Neumann’s and Otto Kirchheimer’s early studies on the
origins and nature of National Socialism. Much like Cristi, they located
the source of Nazism in the transition to monopolistic capitalism and in
the need for a strong, discretionary state charged with the destruction of
the democratic institutions of advanced liberal societies that were used
by organized labor in their struggle against capital. Like Cristi and
contrary to contemporary detractors of Schmitt, Marcuse, Neumann and
Kirchheimer were predisposed to see Schmitt more as an indicative case

122
of the transformations of German liberalism and less as an irrational
‘cultural’ thinker. See Karl Marx, ‘The Eighteenth Brumaire of Louis
Bonaparte’, in The Marx-Engels Reader, ed. Robert Tucker (London and
New York: W. W. Norton, 1978); Nikos Poulantzas, Political Power and
Social Classes (London: Verso, 1978); The Rule of Law under Siege:
Selected Essays of Franz L. Neumann and Otto Kirchheimer, ed. William
E. Scheuerman (Berkeley: University of California Press, 1996); and
Herbert Marcuse, ‘The Struggle against Liberalism in the Totalitarian
View of the State’, in Negations: Essays in Critical Theory (Boston, MA:
Beacon Press, 1969). Cristi’s discussion is also clearly informed by
Schmitt’s notorious influence on the constitutional history of some of
Latin America’s states. See Cristi, Carl Schmitt and Authoritarian
Liberalism, pp. 168, 195.
90 It is within this context that Cristi puts forward an original and persua-
sive comparison between Schmitt and Hayek as two distinct versions of
authoritarian liberalism. Recently, William Scheuerman has attempted a
parallel critical comparison between Schmitt and Hayek that shares many
affinities with Cristi’s own treatment. The results, however, are unsatis-
factory. While Scheuerman’s aim is to establish a structural link between
Schmitt and Hayek that would disclose the former’s goal to discredit and
weaken the left, in order to show the dangers and distortions involved in
the efforts of some left-inspired scholars to creatively and selectively
appropriate elements from Schmitt’s thought, he concludes with a flavor-
less restatement of the value of liberalism. See William Scheuerman, ‘The
Unholy Alliance of Carl Schmitt and Friedrich A. Hayek’, Constellations
4(2) (October 1997): 172–88.
91 William Scheuerman, ‘Legal Indeterminacy and the Origins of Nazis’ Legal
Thought: The Case of Carl Schmitt’, History of Political Thought 17
(1996): 1; McCormick, Carl Schmitt’s Critique of Liberalism, pp. 20–1;
Dyzenhaus, Legitimacy and Legality, pp. 39, 83.
92 Cristi, Carl Schmitt and Authoritarian Liberalism, p. 19.
93 ibid., pp. 161–4, 73–4, 19 f.
94 ibid., p. 165. See also Schwab, The Challenge of the Exception, p. 87.
95 ibid., pp. 23, 68.
96 ibid., pp. 89, 86.
97 ibid., p. 22.
98 Leo Strauss, ‘Notes on Carl Schmitt’s “The Concept of the Political” ’, Carl
Schmitt, The Concept of the Political.
99 Cristi, Carl Schmitt and Authoritarian Liberalism, pp. 31, 23, 139.
100 ibid., p. 90.
101 ibid., pp. 17, 81–2, 138, 204.
102 ibid., pp. 207, 174, 155.
103 ibid., pp. 156, 208.
104 ibid., pp. 17, 149, 17, 157, 175.
105 Klein, Théorie et pratique du pouvoir constituant, p. 100.
106 Ernst-Wolfgang Bockenforde, Die Verfassungsggebende Gewalt des Volkes
– Ein Grenzbegriff des Verfassungsrechts (Frankfurt am Main: A. Metzner,
1986), pp. 11–12.

123
107 Andrew Arato, ‘Forms of Constitution Making and Theories of
Democracy’, Cardozo Law Review 17(2) (December 1995): 202–4.
108 Cristi, Carl Schmitt and Authoritarian Liberalism, pp. 178–99.
109 ibid., p. 193.
110 Chantal Mouffe has undertaken such an effort. Apart from the soundness
of her attempt to reconcile liberalism with a plural theory of democracy,
her engagement with the democratic aspects of Schmitt’s political theory
is worth noticing. Chantal Mouffe, ‘Penser la democratie moderne avec,
et contre, Carl Schmitt’, Revue française de science politique 42(1)
(February 1992); ‘Pluralism and Modern Democracy’, in The Return of
the Political (London: Verso, 1993); ‘Carl Schmitt and the Paradox of
Liberal Democracy’, Canadian Journal of Law and Jurisprudence 10(1)
(January 1997).
111 This I take to be Arendt’s project in her volume On Revolution, where
she set out to disperse and thus democratize the concept of constituent
power. As Arato, correctly in my view, points out, ‘Hannah Arendt
subjected the revolutionary democratic position to a withering critique –
the intensity of which was undoubtedly linked to the fact that Carl
Schmitt became the leading exponent of this position. Implicitly
following Schmitt’s textual link, but reversing his evaluation, Arendt
focuses on the famous lines of Sieyes, according to which the constituent
power finds itself “in a state of nature.” She variously rejects both the
interpretation that the constituent can rest only on atomized individuals,
and the interpretation that it cannot be bound by legal restrictions of any
type.’ Arato, ‘Forms of Constitution Making and Theories of Demo-
cracy’, p. 205.
112 Thibaudeau, Le Moniteur, XXIV, in Marcel Gauchet, La révolution des
pouvoirs: la souveraineté, le peuple et la représentation, 1789–1799 (Paris:
Gallimard, 1995), p. 32.
113 Here I follow the path opened up by the prescient studies on Schmitt put
forward during the early 1980s by Italian thinkers such as Mario Tronti,
Toni Negri, Massimo Cacciari, Giacommo Marramao, Umberto Cerroni,
to be followed more recently by Paulo Virno and Augusto Illuminati. See,
for example, La Politica oltre lo Stato. Carl Schmitt (Venice: Arsenale
Cooperativa, 1981), which gathers essays presented in the proceedings of
the Schmitt conference in Padua, organized by the section of the Gramsci
Institute in Venice. For a discussion of the Italian reception of Schmitt see
Roberto Maggiori, Liberation (17 November 1988); Gennaro Malgieri,
‘La recezione di Carl Schmitt in Italia’, Revue européenne des sciences
sociales – Cahiers Vilfredo Pareto XVI (1978); Paolo Virno and Michael
Hardt (eds) Radical Thought in Italy: A Potential Politics (Minneapolis:
University of Minnesota Press, 1996).
114 There are many Schmitt scholars who will be surprised by this statement.
Is it not after all Schmitt the one who fervently attacked the normative
assumptions of liberalism and, more generally, of any discourse on justice?
My aim is not to deny this fact. I do think, however, that it would be a
mistake to reduce Schmitt’s political theory to this particular aspect of his
thought. Indeed, in his constitutional theory Schmitt developed a strong

124
argument for the democratic legitimacy of modern constitutions: a demo-
cratic constitution must be based on the constituent power of the people to
be valid. Only the political decision of the people endows the constitution
with legitimacy. Now, compare this approach with Kelsen’s own under-
standing of the origins of the basic norm. For Kelsen, the basic norm, which
is the source of the validity of any legal and constitutional order, is ulti-
mately derived from the effectivity of a political entity to impose a new basic
norm, independently of the particular social carrier or the conditions under
which this new norm has been imposed. Kelsen does not and cannot distin-
guish between a democratic revolution and a reactionary coup d’état
because he lacks a theory of democratic legitimacy. Both qualify equally as
a legitimate constitution. Ultimately, Kelsen is left with only two factual
criteria that by themselves fail to generate the appropriate normative
resources for a democratic political theory with a critical intent: first, the
efficacy of a group to impose a new basic norm; and second, the simple fact
of people’s compliance to that norm. Such compliance can be derived from
a multiplicity of reasons as, for example, force, fear, habit, or agreement –
reasons that are not distinguished by Kelsen. Thus, as he acknowledges, ‘it
is in this context irrelevant whether or not this replacement [i.e. of a basic
norm by another] is effected through a violent uprising against those indi-
viduals who so far have been the “legitimate” organs competent to create
and amend the legal order. It is equally irrelevant whether the replacement
is affected through a movement emanating from the mass of the people, or
through action from those in government positions. From a juristic point
of view, the decisive criterion of a revolution is that the order in force is
overthrown and replaced by a new order in a way that the former had not
itself anticipated. . . . It is just the phenomenon of revolution which clearly
shows the significance of the basic norm. Suppose that a group of indi-
viduals attempt to seize power by force in order to remove the legitimate
government in a hitherto monarchic state, and to introduce a republican
form of government. If they succeed, if the old order ceases, and the new
order begins to be efficacious, because the individuals whose behavior the
new order regulates actually behave, by and large, in conformity with the
new order, then this order is considered a valid order.’ Paradoxically
enough, although Kelsen is considered to be one of the main exponents of
a pure, normative theory, he ultimately deprives himself of the conceptual
and normative resources that were necessary for this reconstructive
normative project. In that respect Schmitt not only is closer than Weber and
Kelsen ever were to a theory of democratic legitimacy, he also provides
powerful conceptual tools for a normative political theory. Needless to say,
both Caldwell and Dyzenhaus suppress this important dimension of
Schmitt’s thought. See Kelsen, General Theory of Law and State
(Cambridge, MA: Harvard University Press, 1945), pp. 117, 118, and also
pp. 119–22; Schmitt, Verfassungslehre, pp. 58–60, 75–99.
115 Antonio Negri, Le pouvoir constituant. Essai sur les alternatives de la
modernité (Paris: PUF, 1992), p. 1.
116 Preuss, ‘Constitutional Powermaking for the New Polity: Some Delibera-
tions on the Relations between Constituent Power and the Constitution’.

125
117 See especially the third part of Verfassungslehre and particularly from
Chapters 17 to 21.
119 Negri takes this direction of inquiry in his Le pouvoir constituant, pp.
399–440.
120 This is Marcel Gauchet’s thesis in La révolution des pouvoirs.
121 In addition to Rousseau, there have been some unsuccessful efforts to
develop a democratic theory of law by Neumann, Kirchheimer and, more
recently, Habermas. See Scheuerman, Between the Norm and the
Exception: The Frankfurt School and the Rule of Law and The Rule of
Law under Siege: Selected Essays of Franz L. Neumann and Otto Kirch-
heimer; Jürgen Habermas, Between Facts and Norms: Contributions to a
Discourse Theory of Law and Democracy (Cambridge, MA: MIT Press,
1996); and Habermas on Law and Democracy: Critical Exchanges, ed.
Michel Rosenfeld and Andrew Arato (Berkeley: University of California
Press, 1998).
123 ibid., pp. 107–8.
124 Cristi, Carl Schmitt and Authoritarian Liberalism, pp. 124–5.

KALYVAS 1999 ¿Who's Afraid of Carl Schmitt. Review Essay

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Philosophy & Social Criticism

Who's afraid of Carl Schmitt?

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John McCormick, Carl Schmitt’s Critique of Liberalism: Against

Une Constitution suppose avant tout un pouvoir constituant. . . . Le

PHILOSOPHY & SOCIAL CRITICISM • vol 25 no 5 • pp. 87–125

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Finally, this reading exposes Schmitt’s influence on Hermann Heller, the

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Columbia University, Department of Political Science, New York, NY,

1 Emmanuel Sieyès, ‘Reconnaisance et exposition raisonée des droits de

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