Academic journal article Texas Law Review

"Integrative Jurisprudence" and Other Misdemeanors

Academic journal article Texas Law Review

"Integrative Jurisprudence" and Other Misdemeanors

Article excerpt

POPULAR SOVEREIGNTY AND THE CRISIS OF GERMAN CONSTITUTIONAL LAW: THE THEORY & PRACTICE OF WEIMAR CONSTITUTIONALISM. By Peter C. Caldwell.^ Durham: Duke University Press, 1997. Pp. xiv, 300. $49.95 (cloth); 17.95 (paper).^^

LEGALITY AND LEGITIMACY: CARL SCHMITT, HANS KELSEN AND HERMANN HELLER IN WEIMAR. By David Dyzenhaus.^^ Oxford: Clarendon Press, 1997. Pp. xiv, 283. $75.00.^^^^

In April 1997, on the occasion of the six hundred year anniversary of the founding of the city of Plettenberg, Germany, where Carl Schmitt was born and lived a good part of his life, Ernst-Wolfgang Bockenforde, a Schmitt expert who, not incidentally, retired as a member of the German Supreme Court in 1996 and is now Professor of Public Law at the University of Freiburg, gave a lecture titled "Carl Schmitt in der Diskussion."' Bockenforde began by observing that, unlike in former years, when it was customary to treat Schmitt in a pejorative way, since the early 1990s Schmitt's work has received different treatment: For decades, particularly in Germany, Schmitt and his work were dealt with from the viewpoint of coming to terms with the past. Explicitly or implicitly, the fundamental issue was his collaboration during the Third Reich. From this perspective, the focus was on the continuity of his work: was he an opponent of democracy from the very beginning, or was he a conformist opportunist who often changed his position? . . . Those who deal with Schmitt now are part of the post-1945 generation or, as is more often the case, of the post-1960s generation. . . . What interests them is the subject matter, i. e., what Schmitt has written, what led him to the positions he took, and what these positions were.

As Bockenforde notes, renewed interest in Schmitt has followed the publication of Schmitt's 1947-1951 diaries3 and of a book demonstrating Schmitt's hidden, but possibly far-reaching influence on postwar German intellectuals.4 Many of the themes discussed by Schmitt during the Weimar Republic and after 1945 have become increasingly relevant, not only in Germany, but also in other European countries:

Thus a member of this younger generation claims that insights, concepts, and polemics related to Schmitt's work are interesting not because they are Schmitt's products but rather because they reflect the coming of age of an elite that has witnessed the transition to an industrial mass society. This way of dealing with Schmitt's work confirms that, over a decade after his death, he has become a 'classic'-a classic whose biography recedes behind his scientific and literary work.5

Unfortunately, this sea-change in Schmitt studies has gone largely unnoticed by a group of young North American authors writing on Schmitt and Weimar constitutionalism, most prominent among them William E. Scheuerman, John P. McCormick, and the authors of the two books reviewed here, Peter C. Caldwell and David Dyzenhaus. They write as though the last ten, twenty, and more years of Schmitt scholarship did not exist, as though the fearful and pejorative way of treating Schmitt that obtained widespread approval in the immediate postwar years in Germany, which has been proven false, fruitless, or both by precisely this new scholarship, is still acceptable, even necessary.6 How can we explain this? It seems to be the result, on the one hand, of a kind of existential anxiety about the post-Cold War world and, on the other, of many trying to remain on the "Left" after the collapse of the Soviet Union, in particular, and communism, in general, having recourse only to versions of recycled liberalism or social democracy. Moreover, because the standard defense of the Left during the Cold War was anti-fascism, what we get now is recycled anti-fascism.

McCormick's book' is a good example. As do Caldwell and Dyzenhaus, McCormick starts with the premise that Schmitt was a fascist all his professional life,8 despite the fact that Schmitt did not consider himself to be a fascist during the Weimar Republic9 (or, for that matter, even during the Third Reich),10 that none of Schmitt's Weimar students or colleagues considered him to be a fascist,11 and that there is nothing in his pre-Third Reich writings that purports to promote fascism. …

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