The Will of the People? - Berghahn Journals

The Will of the People? Carl Schmitt and Jean-Jacques Rousseau on a Key Question in Democratic Theory Samuel Salzborn

Abstract: The question of how to adequately represent the demos in a democracy has always been an issue. Of the many different aspects in the debate between representative and direct democratic approaches, one key point of contention is “the will of the people.” Here, an oft-overlooked question is what takes precedence: “the will” or “the people.” This article addresses the issue by examining Carl Schmitt’s reading (and one-sided slanting) of Rousseau and how it has influenced today’s debate in unacknowledged ways. In scrutinizing Schmitt’s body of work and its particular development of “the will of the people,” I demonstrate that “identitarian” democratic concepts must ultimately remain trapped in a dilemma produced by Schmitt’s reading—one that can only be resolved through representation. Keywords: Carl Schmitt, democracy, dictatorship, identity, Jean-Jacques Rousseau, representation

Thomas Hobbes once wrote of an “Inconstancy from the Number,” thereby hitting upon a central problem of democracy, as well as its perpetual need for legitimizing justification (Schmidt 2010: 52): “In Assemblies, besides that of Nature, there ariseth an Inconstancy from the Number. For the absence of a few, that would have the Resolution once taken, continue firme, (which may happen by security, negligence, or private impediments,) or the diligent appearance of a few of the contrary opinion, undoes to day, all that was concluded yesterday” (Hobbes [1651] 1909: 144–145). While a nondemocratic system tries to guarantee permanence and stability to its subjects while demanding the same from them, but regardless of their will, democracy promises to guarantee their legal rights, and not despite its citizens, but explicitly in accordance with their will, while thereby also assuming the perpetual risk of changes resulting from inconstancy (Salzborn 2012a). This “Inconstancy from the Number,” or, differently phrased, the inconsistent preferences of citizens in a democracy, is an unavoidable © Democratic Theory doi: 10.3167/dt.2017.040102

Volume 4, Issue 1, Summer 2017: 11–34 ISSN 2332-8894 (Print), ISSN 2332-8908 (Online)

challenge for several of today’s more dominant theories of democracy— especially representative democracy. This is because democracy is a political system promising something it cannot guarantee in the long run, and yet must promise in order to ensure its long-term existence (on this see also Böckenförde 1976), namely, the stability of its freedoms-based system, one that exists precisely because of its citizen’s inconsistent preferences. This is a system that can legitimize its continued existence only through its instability, one that (in contrast to all other political systems) guarantees its citizens the option of having divergent opinions, a system that regulates conflicts while constantly producing more. The inconstancy of preferences is a problem frequently discussed by historical thinkers. It is difficult to resolve because the issue is not just a mathematical one, so it cannot be settled by simply adding up the numbers. For example, James Madison wrote extensively on the proper ratio between representatives and the represented (Hamilton et al. [1787] 2003: Federalist Papers Nos. 10 and 55), which was to be neither too small nor too large. However, it is not possible to calculate the most effective and sensible ratio in absolute terms, but only relative ones. The reason for this is that this phenomenon is qualitative and thus a social one, and cannot be resolved by simple mathematics because social and political structures are constantly changing over time. The question of what are “too many” or “too few” parliamentarians in a representative democracy can only be answered for a particular point in time, and also only in retrospect, namely, after a concrete critical situation has demonstrated that there really were too many or too few of them. Therefore, preference inconsistency serves as a constant reminder of democracy’s very foundation: the people, the demos, which is so changeable and unpredictable, a complication that utopians of all stripes (Saage 1997) have repeatedly tried to iron out while striving toward a normative definition of “the will of the people,” will nonetheless keep slipping away in real-world situations, and inevitably must slip away. The attempt to overcome this problem and thus to “conclusively” fathom the will of the people is based on the hope of permanently securing democracy, but paradoxically (and inevitably), achieving this very goal would ultimately destroy it. The people’s will is not only the empirical core of every democracy’s legitimation—it can also become democracy’s death through normativization, if it is ever set in stone. This is a conflict between a posteriori and a priori, in which the will of the people can always be determined after the fact but never before, although an a priori determination would certainly be very attractive as a binding basis for a system’s legitimation. However, every such determination, because of its ontological nature, must eventually become its opposite, thereby negating the 12

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current real-world will of the people, that is, the sum of the wills of all individuals, which are always changeable and varying in practice. The following analysis proposes that there exists an unresolvable contradiction between the claim of direct legitimation through “the will of the people” and the real-world impossibility of achieving this beyond the use of indirect representation; if such a claim of direct legitimation is theoretically argued, it leads to an ontological determination of what is ostensibly the will of the people, a will defined by an alleged consensus or by a person who claims to “understand” the will of the people. As Hobbes alludes to, the dilemma is that a democracy should ideally be based on a covenant in which decision making is shared among those affected by the consequences, but this is not possible in practice, partly because democratic polities are too populous to manage this even in purely technical and administrative terms, and partly because modern capitalist society’s perpetually inscribed conflicts (over resources, ownership, power, etc.) make it impossible for any democracy to fix the people’s will at any one point in time, an act that would try to freeze the dynamics of society and solidarity, with their constantly changing contradictions and constant changes driven by contradiction (Fetscher 1973; Saage 2005). Lying at the heart of such efforts to fix “the will of the people” as an ostensibly homogeneous “identity” in the sense of “identicalness” is the work of Carl Schmitt (Mehring 2009; Voigt 2011). One step on the way toward Schmitt’s complete conceptual radicalization is represented by Jean-Jacques Rousseau’s antiliberal break with the representational government ideas of the Enlightenment and liberalism (Kersting 2003; Wokler 1995); Rousseau clearly recognized the dilemma of representation and the associated theoretical problems it presents in terms of legitimizing democracy, and tried to resolve these structural conflicts through the concept of identity—which then paved the way for Schmitt to cite Rousseau as a respected source for his own argumentation, which was not geared toward constructively resolving this potentially central dilemma in democratic theory, but instead took inconstancy as a reason for disavowing democracy in general as a pluralistic and conflict-prone form of state and governance. Before detailing and critiquing Schmitt’s argument in order to demonstrate the unresolvability of the problem of representing the will of the people, while also showing that this actually represents a strength of democracy so long as it does not veer into support for antidemocratic ideologies (Pickel and Pickel 2006; Salzborn 2009; Schuppert 2008; Westle and Gabriel 2009), the following will begin by first highlighting the theoretical lines of connection running from Rousseau to Schmitt, showing that the ambiguities in Rousseau’s conception of identity are themselves part of the legitimization problem, ultimately Salzborn ❯ The Willl of the People?

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enabling Schmitt to invoke Rousseau both rightly and wrongly (Hidalgo 2013).

The Agenda of Identity: Rousseau and the Dilemma of Representation Embedded within the rationale of modern democratic theory is a fundamental tension that remains unresolvable, namely, that between economic and political freedom (Salzborn 2012b). Whereas democracy has become a governmental form specifically associated with capitalist society, which itself would have been inconceivable without the history of the Enlightenment, so is embedded at its core the same conflict that shapes modern society. In the Enlightenment’s promise of emancipating the person as a subject, there is inscribed a freedom that could also lead to a self-aggrandizing of the individual; that is, there exists a dialectic between this emancipation and its functional opposite. Similarly, democracy’s promise of political freedom also contains a caveat that this freedom can only be a half freedom, that the promise of political equality is necessarily balanced against the price of economic inequality. This is because complete freedom, as implied by liberalism as the guiding ideology ushering in modernity, means not only freedom from compulsion, but also freedom from guaranteed security: whoever wants to be free must also accept the consequences of freedom (Dahrendorf 2007), and there can be no freedom from compulsion without the constant risks presented by this freedom from guaranteed security, or without what Erich Fromm (1942) called “the fear of freedom.” The emancipation of bourgeois capitalist society was a political and legal one, with the goal of economic emancipation—but unfettered equal rights for all does not actually mean unfettered equal possibilities for all. Just as freedom expanded the horizons of personal happiness for some, it shrank it for others. At the same time, the Enlightenment’s modern subject injected a qualitative difference into the big picture: once the legitimation of governance has been demanded in the real world, as demanded by democracy in the modern age, the corresponding debate can no longer be silenced (Salzborn 2013). However, the anchoring of bourgeois capitalist society in private property created an essential and unresolvable tension with freedom itself, a tension that must always result in conflicts within capitalist society, because the freedom of unequal persons also means the inequality of free persons, and within the law’s postulated equality is also inscribed the economic process in which some enjoy long-term accumulation while others suffer impoverishment, as Marx describes ([1867] 1908: 707). 14


To paraphrase a fundamental concept from Rousseau’s natural law philosophy, humanity’s suffering began with private property; but on the other hand, and in contrast to Rousseau’s criticism, private property also represented the motor that allowed freedom to become a utopian promise in the first place, before it could become a reality. Bourgeois capitalist society’s conception of private property, a conception that Locke and Engels have shown is based not on acquisition but on labor (Brocker 1992), concretizes the theoretical promise of legitimized governance in democracy, which in turn (as both the starting point and the result of power relationships between the rulers and the ruled) is necessarily subject to the “Inconstancy from the Number,” because a discrepancy exists between the ideal of allowing citizens to share in the decision making about their common future and the real-world ability for citizens to emancipate themselves by turning theoretical political maturity into a truly informed political maturity, a discrepancy that is mediated by freedom: in order to effectively partake in everyday plebiscites (Renan [1882] 1997), there must exist the possibility of leisure time, which Marx describes as a “realm of freedom” that can only exist outside of capitalist society (Marx [1894] 1909: 954). In other words, if you want to act with true political maturity and participate in political decision making, you also need the freedom of leisure time in order to gather information and consider interests, thereby acquiring sufficient competence; but this free time, which completely lacks economic function, is structurally missing in capitalist society, because the worker’s time is devoted to satisfying basic everyday needs. To put it succinctly: those who need to work have little time for deliberation. Therefore, because modern mainstream conceptions of democracy are founded upon a social model defined by wage labor relationships, it can never entirely fulfill its promise of freedom. Any attempt to do so would destroy its economic foundation, along with its legal one. This is the hidden source of the concept of democratic representation, which historical thinkers have often described only in terms of pragmatism: for example, while liberal thinkers in particular have pointed out that representation is a useful or suitable idea for capitalist contexts, Socialist thinkers have criticized precisely this seeming dependence on pragmatic concerns—without, however, considering its causal basis beyond the issue of pragmatism. But it is much more than pragmatic; it is actually indispensable for capitalist society as well as any society based on wage employment and the division of labor, because as Max Weber ([1919] 2004) writes, the rationalization of the modern age means that politics itself has become a business. In fact, going beyond Weber’s conception, it must become a business, because the career politician is the only one whose Salzborn ❯ The Willl of the People?

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time (which is also paid time) can be devoted to gathering information and considering conflicting interests, both personal ones and those of society’s various interest groups. Of course, Rousseau was not able to anticipate this; nonetheless, he understood that this area must represent a perpetual source of conflict for society, and tried to resolve the question of participation and representation as a political one, although it is in fact an economic one, ultimately stemming from private property. Rousseau’s answer to this conflict was a utopia of identity within a republic of virtue (Kersting 2003), in which the social inequality created by private property is to be neutralized on the political level—without seeing that political representation and private property are interdependent because of economic reasons, not political ones. For Rousseau, the basis for creating a political order is solely a common agreement between individuals in the form of a social contract, establishing a body politic based on the voluntary and egalitarian participation of all, as stated in The Social Contract: “Each one of us puts into the community his person and all his powers under the supreme direction of the general will; and as a body, we incorporate every member as an indivisible part of the whole” ([1762] 1968: 61). In Rousseau’s conception, the political republic emerges when the people come together and transfer all their rights to the community as a whole. Since all persons are subsumed into it, no one person owes allegiance to another, meaning that each individual remains as free as before. As a result, the individual bourgeois (who is guided only by private self-interest) is transformed into a citoyen (who embodies the community). The citizen is framed in terms of morality and virtue, with the common good taking priority over private interests. As a collective body, the republic consists of a common self (moi commun) and a general will (volonté générale), both always aiming toward the impartial common good. However, the common good is not necessarily the sum of individual wills, or the will of all (volonté de tous). Since the volonté générale is supposed to be expressed in the laws passed by a full assembly of all citizens, the result is a direct plebiscitary sovereignty of the people, founded upon a social contract (Kersting 2003: 11ff.). For Rousseau, the sovereign will cannot be divided or delegated, meaning that sovereignty remains unlimited and immune to limitation. The idea of “identitarian” democracy, in which the rulers and ruled are completely identical, as the opposite of representative democracy, thus goes back to Rousseau and his view that the will cannot be represented: every subject is also sovereign, and since sovereignty cannot be divided or delegated, it cannot be exercised by a proxy (Bertram 2012; Douglass 2013).1 In Rousseau’s framework, the concept of identity plays a central role in trying to establish (by way of 16


reason) a volonté générale, making the general will of all into the essential prerequisite for governance—that is to say, a direct plebiscitary popular sovereignty based on consensus. Here, Rousseau argues against potential heterogeneity in society: individuals who refused to comply with the general will within an identitarian process would be “forced to be free” ([1762] 1968: 64). Carl Schmitt took up Rousseau’s democratic theory while further extending the political motif of identity (Bergem 2005: 58ff.); however, Schmitt’s critique of parliamentarianism focuses on the nature of debates in representatively elected parliaments, which ostensibly express only self-interests while neglecting “the general will,” so that selfishness becomes the norm and mob rule overrides “the will of the people.” For Schmitt, parliamentarianism is the antithesis of democracy, which for him, as for Rousseau, means absolute homogeneity of the community as well as identity between rulers and the ruled—but Schmitt goes further in concretizing Rousseau’s vague notions, with a conception of democracy that tries to exclude all liberal elements and Enlightenment ideals (such as freedom, subjectivity, privacy, etc.), so that only “the will of the people” finally remains as the core “substance” (Schmitt [1923] 1988; see also Przeworski 2010). But what, then, is the will of the people, if it is not to be constantly rediscovered through parliamentary debates and public discussions? In stark contrast to Rousseau, Schmitt focuses here on a concept of “substance,” which is not to be determined by reason, but is instead to be embodied and expressed by a charismatic personality, along with occasional plebiscites (Schmitt 1927). Identitarian democracy thus becomes— through the erasure of all liberal elements—an acclamation of the dictatorship (Schmitt [1921] 2014), with the dictator now embodying the will of the people and manufacturing its identity, in concrete terms by excluding all that is heterogeneous, alien, and divergent. This also informs the paradox that totalitarian regimes often consider themselves “democratic,” according to the internal logic of theoretical identity: here, one particular subsection of society is declared to be the demos (such as the workers and farmers in East Germany, or the Aryans in the Nazi Reich), whereby their alleged interests are ontologically defined and “the common good” is normatively formulated, in a process that tries to manufacture identity between rulers and the ruled (and their respective interests), which becomes de facto through segregation and separation. Here, Schmitt acted as a pioneering architect of identitarian democratic theory by declaring the ethnos to be the demos. Similarly, identitarian democracy movements often establish their own subjective ideal as the overriding one, that is, as an “ultimate value” or “ultimate Salzborn ❯ The Willl of the People?

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authority”, allowing the deliberate circumvention of majority rule and mediating processes in order to impose a minority view.

The Will as Identity: Schmitt and the Turn toward Dictatorship Schmitt’s conception of a constitutional reality existing beyond legal positivist man-made laws, as expounded in his Constitutional Theory ([1928] 2008), has had a major impact on legal theorists since then. In this book, following up on his works concerning the legitimization of sovereignty and parallel to his work explaining the supremacy of “the political” ([1927] 1996), Schmitt criticizes normativism and positivism while proposing a process-oriented dynamic in the political sphere, one that could not be understood through a purely positivist analysis. In Schmitt’s analysis of political systems, more important than the positivist definition of norms is the central role played by the individual and collective processes of deliberation and debate within a society, particularly in the forming of political will, from which follows that the simple existence and awareness of norms is not the same as the acceptance of norms. While subsequent legal scholars accepted Schmitt’s differentiation between norm and reality (Grimm 1991; Hesse 1959; Loewenstein 1951/52), they challenged his decisionist reshaping and voluntarist refocusing of social reality toward an ethnically homogeneous community ideal, which in Schmitt’s framework resulted in prioritizing extralegal concerns (such as will, “the people,” common good, mores, etc.) in lawmaking (Fraenkel 1941; Neumann 1944; Ridder 1975). For the dimension of will in Schmitt’s identity theory, a key aspect is the implicit question raised by Schmitt’s recognition of the (very real) difference between constitutional norm and constitutional reality, namely, the question of which one has primacy, which Schmitt answers categorically in favor of constitutional reality—one he conceives as homogeneous and identitarian. Schmitt thus states in Constitutional Theory that a constitution is always legitimate “when the power and authority of the constitution-making power, on whose decision it rests, is acknowledged” ([1928] 2008: 136; see also Eleftheriadis 2010; Kay 2011). Therefore, he is not so much concerned with the factuality of the constitution in the sense of actual, positively existing rules; instead, his focus is an extralegal one, in which the “substance of the constitution” is based on the political decision defining its “political existence,” and thus “requires no justification via an ethical or juristic norm,” for “the special type of political existence need not and cannot legitimate itself” ([1928] 2008: 136). A comparable idea was already expressed in his earlier book Dictatorship: “What is seen 18


as the norm can positively be defined either by an existing constitution or by a political ideal” ([1921] 2014: xli). An “essential presupposition” for Schmitt’s antiliberal definition of democracy is a “substantial equality” or sameness, meaning an “identity of the ruler and ruled, governing and governed, commander and follower” ([1921] 2014: 264), which connects directly to the friend-enemy dichotomy in his Concept of the Political ([1927] 1996) and the therein formulated ideal of homogeneity (Salzborn 2011). For Schmitt, democracy is a “rule of the people” characterized not by individuals ruling themselves, but by the collective taking control—the people as ethnos and not demos. This is an argumentatively interesting point, as the German term for “people” is Volk, which actually permits both interpretations: it means both “people” and “nation” in today’s German, but in the German-language debates of the 1920s it referred to an ethnically defined people, as the direct antithesis of a citizenship-based nation (see Boehm 1932 for a major proponent; see Prehn 2013 and Salzborn 2005, 2008 for critical analysis). In Schmitt’s conception of democratic governance, whoever “rules or governs … may not deviate from the general identity and homogeneity of the people,” but must instead “agree substantively” with the people “in terms of democratic equality and homogeneity” ([1928] 2008: 264): In a “pure democracy, there is only the self-identity of the genuinely present people,” and thus no representation. The word “identity” signifies “the existential quality of the political unity of the people” and not “any normative, schematic, or fictional types of equality.” Democracy thus “presupposes a people whose members are similar to one another,” who share “the will to political existence.” When Rousseau states that what the people will is always good, this is “correct because a people’s existence is based on its homogeneity” (264–265). Schmitt himself admits the necessity of a government as an administrative institution, which also requires a formal differentiation between “those governed and those governing” (265), but this should not be allowed to establish “a qualitative distinction and to distance governing persons from those governed,” because this would endanger “democratic homogeneity and identity.” As Schmitt (266) goes on to say: “In a democracy, whoever governs does so not because he possesses the properties of a qualitatively better upper class opposed to an inferior lower class.” Nonetheless, practicalities could “reasonably prompt the people to entrust comrades [Volksgenossen, an ethnonationalist term for Volk comrades] who are efficient with the administration and leadership duties”; however, “the formation of a special class” is to be avoided, because this would endanger “the qualitative and substantive equality of all, which is the supreme prerequisite of every democracy.” What at first glance Salzborn ❯ The Willl of the People?

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appears to be a fervent plea for equality actually reveals itself to be a fervent plea for inequality, because the ideas of homogeneity and identity are ultimately irreconcilable with the basic democratic ideals of contradiction and conflict; here, Schmitt is postulating an internal homogeneity and identity that can only be mediated through an ethnonationalist conception of Volk, one that assumes not only an immutable outside, but also an ostensibly existential other (Salzborn 2010a). Schmitt thereby puts forward the absolute supremacy of a particular conception of unity, order, and community, a conception homogenized through rigid, ethnicized friend versus enemy ideas, and in which decisions about belonging (and not belonging) are made no longer by the individual, but by the collective. But in deciding who is the political enemy, only “the actual participants can correctly recognize, understand, and judge the concrete situation”: But he is, nevertheless, the other, the stranger; and it is sufficient for his nature that he is, in a specially intense way, existentially something different and alien, so that in the extreme case conflicts with him are possible. These can neither be decided by a previously determined general norm nor by the judgment of a disinterested and therefore neutral third party. (Schmitt [1927] 1996: 27)

The imputed identity of state and society is further used to argue that this identity can make everything political (at least in principle), which in turn would also override the state and its more specific definition of the political. Here, the general application of legal norms is suspended and the legal foundations of liberal democratic thought are overruled, along with liberalism’s Enlightenment promises of freedom, subjectivity, and privacy. In The Concept of the Political, Schmitt’s antidemocratic proposition culminates in defining the Volk (in ethnonationalist terms) as a conscious antithesis to the nation (in potentially republican terms), with the Volk as the basic unit for differentiating between friend and enemy (for further analysis of Schmitt’s concept, see Baume 2009; Benhabib 2012; Kahn 2009; Keedus 2011; Stanton 2011). When a Volk no longer enforces this friend versus enemy differentiation (lacking either will or ability), it ceases to exist politically, because the enemy is ultimately necessary: “The justification of war does not reside in its being fought for ideals or norms of justice, but in its being fought against a real enemy” (Schmitt [1927] 1996: 49). Here, war becomes an end in itself, and the friend versus enemy differentiation becomes a self-fulfilling prophecy. In this situation, society’s drive to achieve ideals of homogeneity, unity, and communality through clear friend versus enemy delineations also “implies a double possibility: the right to demand from its own members the readiness to die and unhesitatingly to kill enemies” (46). 20


Schmitt’s conception of democracy as presented in The Concept of the Political finds its precursor in the form of democracy he discussed in The Crisis of Parliamentary Democracy ([1923] 1988). This was where he developed his ontological concept of democracy in terms of form, which was then further developed in terms of content in The Concept of the Political. In Parliamentary Democracy, he begins by conceptualizing a contradiction between democracy and parliamentarianism, which effectively boils down to a contradiction between identity and representation, but expressed in terms of democracy versus parliamentarianism for populist appeal. For Schmitt, the concept of parliamentarianism stems from liberalism and not from genuine democracy, whose intellectual and historical roots he emphatically traces back to Rousseau. In describing democracy’s form, Schmitt writes that every “actual democracy rests on the principle that not only are equals equal but unequals will not be treated equally” ([1923] 1988: 9), with “actual” representing an argumentative device that can empty any historical intellectual concept and recode it with an “actual” meaning, thereby ontologizing it and denying its contested nature (Göhler et al. 2004). He goes on to say that democracy “requires, therefore, first homogeneity and second—if the need arises—elimination or eradication of heterogeneity” (Schmitt [1923] 1988: 9). As a result, democracies “can exclude one part of those governed without ceasing to be a democracy,” and have historically incorporated “people who in some way were completely or partially without rights,” giving them a status similar to slaves, although they may be called “barbarians, uncivilized, atheists, aristocrats, counterrevolutionaries” (9–10). Incidentally, this provided a wide-reaching argumentative platform for the future Nazi regime’s anti-Semitic extermination policies (for a deeper analysis of Schmitt’s anti-Semitism, see Gross [2000] 2007), as mentioned by Ernst Fraenkel: “The elimination of the ostensibly heterogeneous subgroup, meaning their political disempowerment and if necessary their physical annihilation, is meant to ensure the creation of a unified common will whose substrate is the racially homogeneous Volk and whose representative is the leader [Führer] of a hierarchically structured movement” ([1964] 1979: 211; my translation). On the other hand, Schmitt rejects a universalist equality, which he calls “absolute human equality,” as one that is “conceptually and practically meaningless, an indifferent equality.” He goes on to say: “Where a state wants to establish general human equality in the political sphere without concern for national or some other sort of homogeneity, then it cannot escape the consequence that political equality will be devalued to the extent that it approximates absolute human equality” ([1923] 1988: 12). In this analysis, the idea of equality for all humans is not a component Salzborn ❯ The Willl of the People?

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of democracy but of liberal ideology: Schmitt further asserts that “a true state, according to Rousseau, only exists where the people are so homogeneous that there is essentially unanimity” (13). In most of his writings during the Weimar era, Schmitt was fairly meticulous in avoiding explicit statements on what concretely defines the Volk; correspondingly, his conception of democracy in Parliamentary Democracy concentrates primarily on form, although he almost addresses content with passing references like “national or some other sort of homogeneity” (12); however, the ethnicizing (or more precisely, völkisch, an adjective derived from Volk in the ethnonationalist sense) core of Schmitt’s proposition is not made explicit until The Concept of the Political in 1927, while the specifically anti-Semitic aspect, which is only hinted at by the formal framework of Parliamentary Democracy, does not explicitly come out in concrete form until his writings during the Nazi era (see, particularly, Schmitt 1934, [1938] 1996, 1939, 1942; see also Derman 2011; Gaynor 2012; Salter 2013; Tralau 2011; Vagts 1990). Schmitt also writes in Parliamentary Democracy that “unanimity” may in fact be “naturally present” ([1923] 1988: 14), thus explicitly pointing to the essentialist core of his conception. In essentializing this naturally present unanimity, Schmitt also succeeds in reducing to absurdity the contract idea, which is the part of Rousseau he disdains. According to Schmitt, the contract is meaningless if unanimity naturally exists, and if society lacks this naturalness, then the contract will fail, making it equally meaningless (14). Schmitt then goes on to eliminate the (minor) liberal aspect of Rousseau’s theory (see Salzborn 2010b: 67ff.): “The general will as Rousseau constructs it is in truth homogeneity. That is a really consequential democracy. According to the Contrat social, the state therefore rests not on a contract but essentially on homogeneity, in spite of its title and in spite of the dominant contract theory. The democratic identity of governed and governing arises from that” (Schmitt [1923] 1988: 14). The “will of people” can be better expressed “through acclamation, through something taken for granted, an obvious and unchallenged presence” than through the processes of representative democracy (16). Schmitt’s mention of the “unchallenged presence” is so casually formulated that one could easily miss its meaning: in Schmitt’s conception of democracy, the people no longer need subjective agency. Following this line of logic, Schmitt goes on to argue that the “minority might express the true will of the people” (27), a will that can be made explicit through “the familiar program of ‘people’s education.’ … The people can be brought to recognize and express their own will correctly through the right education” (28). Where Rousseau cites reason as the best path to understanding, Schmitt proposes an educational dictatorship that imposes the “right” 22


understanding upon “the will of the people.” He ends here by noting “the consequence of this educational theory is a dictatorship that suspends democracy in the name of a true democracy that is still to be created” (28). Dictatorship thus becomes the tool for closing the gap between völkisch ideology’s normative claim and democracy’s normative implementation: for if “dictatorship designates the exception to a norm,” it does not mean “any arbitrary negation of a random norm.” What is “negated is the norm, whose authority should be guaranteed by dictatorship throughout its historical-political existence. There might be a difference between the rule of law in its making and the method of its exercise” (Schmitt [1921] 2014: xlii). Schmitt’s support of dictatorship is a political one in which dictatorship is not seen as an antagonistic opposite of democracy, but as a necessary option for it; however, this is a “democracy” cleansed of all liberal, Socialist, and Enlightenment elements, founded upon a demos that is understood as an ethnic and homogeneous collective, one that unconditionally submits to an authoritarian leading figure because the collective believes that this figure corresponds to its essential nature. For Schmitt, the formal characteristic of a dictatorship is “the empowerment of a supreme authority, legally capable of suspending the law and of authorizing a dictatorship” ([1921] 2014: xliii). Schmitt’s “democracy” is thus one in which the essence of democracy is completely destroyed, and any hope of broad participation and shared decision making is eclipsed; this is how Schmitt interprets “the will of the people,” which no longer needs the people for its interpretation and justification, but only its leadership. The path to the racially homogeneous Volksstaat (the “Volk state,” as described in Aly [2005] 2007) was paved by Schmitt’s identity theory, which he rationalizes not simply through political arguments but also through legal theory. He uses democracy’s problems with legitimation to destroy the connection between it and the rule of law. Schmitt does so in Der Hüter der Verfassung ([1931] 1996) by developing his legal theory along two strategic lines of argument: on the one hand, his argument deploys the concepts of identity, homogeneity, and decision(ism), which are key to informing his support for the strengthening of the personal over the structural, thereby anticipating the charismatic principle, while also building up the textual skeleton from which he develops his critique of the Weimar Republic’s parliamentary system; on the other hand, and rather remarkably in terms of his legal theory, Schmitt also borrows somewhat from the positivist discussion of Weimar constitutional law (Friedrich 1977; Geis 1989; Sontheimer [1962] 1994; Stolleis 2001) when his argument aligns with maintaining the constitution instead of amending its substance, so that when he tactically argues for centralizing power Salzborn ❯ The Willl of the People?

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by strengthening the personal over the structural, thereby elevating the Reich president to “Guardian of the Constitution,” he supports a constitutional order that he otherwise rejects. Here, it seems that Schmitt, after intellectually weighing the advantages, has decided to give tactical support to maintaining the constitution while also arguing for the strengthening of a structurally antidemocratic aspect, namely, the positioning of the Reich president beside and above the constitution, because this would ultimately torpedo democracy. He thus remains faithful to his decisionist objective, while employing a rhetorical detour to support it. Schmitt scorns the Weimar constitutional order and its elements of “pluralism, polycracy, and federalism” ([1931] 1996: 71; my translation)— especially pluralism, which he considers the core of the legal theory position opposite his own (Vinx 2015). In Schmitt’s analysis: This parliamentary, democratic, party state is, in short, an unstable coalition party state. The deficiencies and shortcomings of such a situation have been portrayed and criticized often enough: incalculable majorities; governments that are incapable of governing and that fail to assume political responsibility, since they are bound by compromises of all sorts; incessant compromises between parties and parliamentary groups that come about at the cost of the interests of a third party or of the state as a whole, and that require a pay-off to every party involved in exchange for its participation; the distribution of positions and sinecures in the state as well as in communal or other public institutions among the followers of parties, in accordance with some formula derived from the strength of parliamentary parties or from the tactical situation. Even those parties that, with an honest public spirit, want to put the interest of the whole above the goals of the party are forced, in part by the necessity of giving consideration to their clientele and voters, but even more by the immanent pluralism of such a system, either to take part in the continuous trading of compromises or to stand aside as irrelevant. At the end, they find themselves in the position of the dog, known from La Fontaine’s fable, that guards the roast of his master with the best of intentions, but that, when he sees the other dogs devour it, eventually decides to participate in the feast.” (Schmitt [1931] 1996: 88–89; translation from Vinx 2015: 143)

Schmitt criticizes social and political pluralism by polemically exaggerating it as a raw clientelism that ultimately endangers the unity of the state and the political order. Here, it is historically true that pluralism theory of the 1920s had indeed not yet reflected upon state-stabilizing forces and the need for common guiding principles, as later described by Ernst Fraenkel ([1964] 1979). From this lack, however, Schmitt then construed a “pluralism of concepts of legality” (Schmitt [1931] 1996: 90; translation from Vinx 2015: 145), which ostensibly leads to destabilization and the endangerment of state unity, particularly through a domestic political 24


conflict between antagonistic groups—a completely intolerable situation in Schmitt’s friend versus enemy conception, potentially escalating into each side framing the other as an “‘internal’ enemy,” even when dealing with a state of siege (Schmitt [1921] 2014: 161), so that the “constitution itself is pulverized between these two reciprocal negations that function almost automatically” (Schmitt [1931] 1996: 91; translation from Vinx 2015: 145–146). Schmitt writes that the “pluralist disintegration of a parliamentary legislative state” ([1931] 1996: 94; my translation) can be prevented only by a pouvoir neutre, a “neutral power” (Schmitt [1931] 1996: 132; translation from Vinx 2015: 150). Here, Schmitt seems to be contradicting himself, having always emphasized unity and homogeneity in his identity theory—but this is not a genuine contradiction, as he does not actually discard the identity concept in Der Hüter der Verfassung, he simply sets it aside for argument’s sake. His goal is to create a power that would be practically capable of combatting pluralism, under the theoretical guise of protecting the constitution. But in reality, the pluralism described by Schmitt had not historically threatened the constitution at all; in fact, the vigorous Weimar debates about social democracy (see Kirchheimer 1930; Neumann 1932; for later analysis, see also Blau 1980; Fisahn 1993) show that the legal theory debate, particularly on the constitutional level, would have had much more room for maneuver had social conflict structures been organized in a more constructive way, and not homogenized in an identitarian way. However, Schmitt’s true interest lay in advancing the identity of the Volk, which is ultimately why, in Der Hüter der Verfassung, he focuses on something that is objectively unimportant to him: the Weimar Republic’s constitution. He needs it to give his identity concept a sense of urgency and to therefore justify his introduction of a “neutral power.” Of course, a close reading shows that this power is anything but “neutral”: what makes it important as a structuring force for Schmitt is simply its ability to systematically suspend the constitutional order, thereby advancing his antidemocratic identity theory by opening a crucial path toward dictatorial development: Differences of opinion and conflicts … are either resolved, from above, by a stronger political force, that is by a higher third that stands above the differing opinions—such a power, however, would not be a guardian of the constitution, but rather a sovereign ruler of the state—or they are arbitrated or settled by an authority that is not superior to but that stands alongside the conflicting parties, and hence by a neutral third. That is the purpose of a neutral power, of a pouvoir neutre et intermédiaire, which is placed at the side and not above the other constitutional powers, but which is endowed with peculiar competences and opportunities of influence.” (Schmitt [1931] 1996: 132; translation from Vinx 2015: 150–151) Salzborn ❯ The Willl of the People?

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At first glance, it might seem unfair to claim that Schmitt is paving the way for dictatorship with his concept of the pouvoir neutre, when he does in fact distance himself quite explicitly from the idea of a “higher” power—but if one looks more closely at his proposition, it is clear that his “neutral” power is actually endowed with everything it needs to stand not only beside the constitution but actually above it, as a “neutral, arbitrating, regulating, and preserving power,” constructed upon—and this is a key point—“a further development of the doctrine,” namely, one making the pouvoir neutre “independent of legislative authorities” (Schmitt [1931] 1996: 137; translation from Vinx 2015: 157). Schmitt’s identitarian conception of “the will of the people” ultimately reaches its conceptual climax in Legality and Legitimacy ([1932] 2004). By undertaking an empirical analysis of the Weimar Republic’s constitution and what he calls its three extraordinary lawgivers, Schmitt presents a theoretical outline of the legislative state, which he contrasts with the jurisdiction state, governmental state, and administrative state. He writes that the “typical expression of the jurisdiction state is the decision in the concrete case, in which the correct law, justice and reason reveal themselves directly without having to be mediated by preestablished, general norms”—thus suggesting a state based on judicial fiat— while “the governmental state … finds its characteristic expression in the exalted personal will and authoritative command of a ruling head of state”—thus suggesting a state based on political fiat ([1932] 2004: 4–5). Finally, there is the administrative state, “whose specific expression is the administrative decree that is determined only in accordance with circumstances, in reference to the concrete situation, and motivated entirely by considerations of factual-practical purposefulness” (5). Schmitt writes that the legislative state is characterized by a “closed system of legality” that is itself a “normative fiction” (6), one that has “developed a thoroughly distinctive system of justification” (9). He criticizes the legislative state above all because it rejects extralegal forces as a source of lawmaking, assigning them to the sphere of the political: “The claim to legality renders every rebellion and counter-measure an injustice and a legal violation or ‘illegality.’ If legality and illegality can be arbitrarily at the disposal of the majority, then the majority can, above all, declare their domestic competitors illegal, that is, hors-la-loi, thereby excluding them from the democratic homogeneity of the people” (30; see also Dyzenhaus 1999; Kay 2011). This argument is all the more remarkable because Schmitt is projecting his own homogeneous identity fantasy onto the pluralist constitutional state, so that he can then criticize it for arbitrarily declaring domestic competitors “illegal”—which is precisely the same intention held by the school of legal theory built on identity 26


and decisionism. But in the constitutional state, the ultimate authority to declare something legal or illegal lies not within the subjective authority of political actors, but is in fact tied to the law, meaning that the process of determining what is legal or illegal can be done objectively without any consideration of the subjective positions of those involved—and the question of whether this determination of legality is then seen as politically right or wrong is left outside the legal framework. But here, Schmitt accuses the “legislative state” of doing precisely what he himself wants to do: frame political competitors (and not just domestic ones) as “the enemy,” thereby denying the legitimacy of their actions by instrumentalizing the legality question and thus excluding them from the “homogeneity of the people” (which does not and should not exist in a constitutional state), an identitarian homogeneity (the only thing legitimizing “legality” in Schmitt’s view) arising exclusively from Schmitt’s friend versus enemy concept and the policy of identitarian decisionism. Here, Schmitt borrows an argumentative trick from the völkisch movement (see Salzborn 2005), one not necessarily conceived as a conscious and deliberate stratagem, but instead formulated as a genuinely held ideology and therefore argued with an unselfconscious belief in its objective correctness: if legality and legitimacy are to merge together in the völkisch framework, meaning that every legal settlement and decided measure is to be guided by a völkisch homogeneity ideal that forms its legitimizing premise while also generating legality, then Schmitt is here accusing the democratic constitutional state of a policy that it not only does not pursue, but cannot pursue, if it wants to remain a democratic state and a constitutional one. Schmitt also points out the site in the legal system that offers a gateway for identitarian legal ideas and for the elimination of legality through völkisch legitimation: “the concrete interpretation and use of undetermined and evaluative concepts, such as ‘public security and order,’ ‘danger,’ ‘emergency,’ … etc.” ([1932] 2004: 32), which are purely matters of interpretation and which are used as standardized norms, even though they do not have the form of general and equal terms, because one has to interpret them against the norm. Schmitt attempts to keep these aforementioned indeterminate concepts open in sociopolitical terms. Here, he rejects what would actually be the more sensible path in legal theory, namely, to erase such indeterminate concepts in general from the legal system. He does so because indeterminate concepts are, as later demonstrated by the National Socialism movement, crucial for circumventing the legal system in favor of rule by decree (Fraenkel 1941; Neumann [1937] 1967, 1944). Therefore, Schmitt chooses a rhetorical detour: the minority holding the means of state power and the opposing party striving for it should each be given Salzborn ❯ The Willl of the People?

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an equal chance at defining what is “legal” and what is “illegal.” For this, Schmitt proposes an “impartial third party. … For in contrast to the parties to the dispute, this third party would be a supraparliamentary, indeed suprademocratic, higher third” ([1932] 2004: 34). Schmitt’s goal is a turn toward identity in the sense of an essentialist assumption of homogeneity, aimed at imposing a “substantive order” (94). For him, it all boils down to a single fundamental choice: “recognition of the substantive characteristics and capacities of the German people or retention and extension of functionalist value neutrality, with the fiction of an indiscriminate equal chance for all contents, goals and drives” (93–94). Schmitt wants to use a mixture of deliberative and dictatorial elements (89, 94) to counter the “neutral majority functionalism that is pitted against value and truth” (94). Schmitt’s focus on “value and truth” also highlights the moralistic aspect of identitarian political ideology, while pointing to a conception of “the people’s will” that may come from various sources, but not from the actual people. It is epistemologically impossible to argue against “value and truth” because these are always subjective (despite being persistently framed as objective) and ultimately mix morality into the argument. And whoever argues on a moral level, as Schmitt does, is in fact covertly arguing the most basic of interests, namely, one’s own interest, here camouflaged as “truth” or “the will of the people.” Schmitt’s argument is ultimately an antidemocratic one, because he wants anyone with a divergent opinion or interest to be ruthlessly subjected to what he claims is “the will of the people,” which in fact is the decisionist will of the dictator.

The Will of the People: But Which Takes Precedence, the Will or the People? In thinking about “the will of the people,” the crucial question is whether the emphasis is on the will or the people, meaning on subjective emancipation or collective identity. Here lies the main difference between Rousseau and Schmitt, which Schmitt tries to smooth over and ultimately resolve in his selective reinterpretation of social contract theory. Rousseau’s identity theory puts its hope in reason, which certainly has the potential for subjective emancipation and is utopian only because it actually believes in this hope: Rousseau wants to create in practice “the will of the people” through identity, but puts the emphasis here on the will. Schmitt disdains this faith in reason. He is a proponent of not only decisionism, but also homogeneity. For Rousseau, identity must be at the service of reason, but for Schmitt, it is subservient to nothing, repre28


senting instead the ontological polestar of his homogenizing framework. Schmitt puts his emphasis on “the people,” which for him is nothing more than the ontologically defined “substance” of an ethnonationally defined homogeneous Volk, an ideal that tolerates no opposition and represses difference to the point of extermination. Under Rousseau, people are “forced to be free,” but under Schmitt, they are forced to be homogeneous, and the individualist outlet allowed by Rousseau (whoever refuses to be “free” can simply leave) no longer exists under Schmitt, so that the empirical will is unconditionally subjugated to the Volk, which has been ontologically defined by the dictator. For both Rousseau and Schmitt, the difficulty with “the will of the people” is that its inconstancy makes it ultimately uncontainable, thus challenging each scholar to reconcile this problem—Rousseau of necessity, Schmitt with intent. In attempting to preserve the heart of democracy and its essential goal of constantly reflecting “the will of the people” despite its structural inconstancy, Rousseau and Schmitt diverge onto two different paths: one subsuming it hypothetically into a republic of virtue, the other in practice destroying it entirely under a völkisch dictatorship. This division between Rousseau and Schmitt has significance for both the theory and practice of democracy. This is because the numerous movements on the right-wing fringe that are once again setting themselves up as “the voice of the people” connect directly to the writing of Carl Schmitt. In both Europe and the Americas, loud calls are going up that the government will not implement the “will of the people”—which is now practically a mantra of populist parties or movements that themselves push ethnonationalist and racist objectives that divide society and wish to tear down democracy (as can be seen most clearly in Donald Trump’s recent presidential campaign in the United States). Even if right-wing extremist parties are nowadays (or once again, in the case of Europe) finding success at the ballot box, they are at their core not about the real will of the people, but the subordinate (and bogus) popular will—not what is empirically verifiable and truly extant, but that which political extremists declare to be the popular will: their own nationalist worldview. Many of these actors even invoke Carl Schmitt directly: from the French Nouvelle Droite to the German Neue Rechte. Schmitt’s ethnonationalism, despite the violence it commits against the spirit of democracy, has found itself a new, and unfortunately rather large, audience. The antiparliamentary effect of the populist extreme right concerns itself with what Schmitt, as one of the central pioneers of National Socialism, demanded: a directed democracy on the basis of a perceived (i.e., right-wing dictated) “will of the people” that is based on ethnic homogeSalzborn ❯ The Willl of the People?

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neity and a categorical and militaristic “friend versus enemy” mode of thought. That this way of thinking leads to barbarism is today historically demonstrable—and can be reconstructed in the history of ideas. Samuel Salzborn is a Professor of Political Science at the Justus-LiebigUniversität Giessen. Among his latest books is The War of Ideas: The History of Political Theory in Context (Nomos, 2. ed. 2017).

NOTE 1. Theoretical approaches leaning toward “identitarian” democracy are often found in New Right debates (Benoist 2009) and elite theory (Martinelli 2009; Salvatore 2015). But in terms of discussing Rousseau, it is also typical that identitarian ideas and variations thereof are similarly found in the politically opposite spectrum, namely, in certain streams of feminist (Young 2000) and postcolonial (Spivak 1988) theory.

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