JUSTICE - No. 66

54 No. 66 JUSTICE immanent in every social situation”but which only finds a“limited expression” in any written law. The most consequential right wing legal thinker of the Weimar Republic and the German state’s subsequent transition to Nazism was the jurist and political theorist Carl Schmitt (1888-1985). Schmitt preached the idea of “Decisionism.” As he explained it, a judge’s decision was “legally derived neither from a norm, nor from a concrete order itself, nor within the frame of a concrete order, because, on the contrary, for the decider the decision itself is the basis both for the norm and for the order. The sovereign decision is the absolute beginning.” As Drucker’s Nazi politician might have put it, what matters is who decides on the bread prices, and that they are deciding on the bread prices, not what the bread prices are. Schmitt contributed decisively to the erosion of Weimar democracy in the years after 1929. He had worked out a theory that the Weimar Constitution could be reduced to the Articles giving crucial powers to the president of the Reich, whom Schmitt deemed the“guardian of the constitution.” Article 48 gave the president sweeping emergency powers, a provision which Schmitt built into an entirely separate edifice of government. It is, he said, the person who decides on the exception who is truly sovereign, and he devised a whole theory of rule based on the power to make exceptional decisions in an emergency. Schmitt devised these ideas while serving as counsel to the two administrations before Hitler came to power. These were right-wing and anti-democratic governments, but not Nazis. But Schmitt enthusiastically applied his doctrines to Hitler’s government as well, and the Nazis enthusiastically adopted them. On June 30, 1934, there occurred the notorious “night of the long knives”– several days of murder of political opponents, which Hitler had ordered with no pretense of judicial process. In an essay published a few weeks after this event titled “The Führer Protects the Law,” Schmitt praised Hitler for his adherence to a“substantive law that is not cut off from morality and justice,” as opposed to the“empty fidelity to statute”and“untruthful neutrality”of the Weimar system. When Hitler ordered the killings of June 30, said Schmitt, Hitler was protecting the law: “From [Hitler’s’] Führership flows his judgeship.” One might think that a judge who ordered murders without going through the elaborate pre-trial and trial process specified in the German Code of Criminal Procedure, was committing a “bending of the law,” if ever anyone had. But the offense of “bending the law” innocently assumes that correct legal answers are self- evidently to be read from statutory enactments. Schmitt, and the Nazis, had nothing but scorn for such a view. Schmitt was much more sophisticated than the Nazi politician referred to at the beginning of this article. But the basic point is the same: tribalism beats rationality, and becomes the source of political legitimacy. Schmitt himself wrote that both Hitler’s Führer power and his judicial power were anchored in the people’s right to exist, and this made them law. We have recently seen rioters in the U.S. Capitol yelling “this is OUR house!”– some wearing t-shirts emblazoned with the words “Camp Auschwitz” or “Six Million Was Not Enough.”Schmitt’s words should give us some very sobering food for thought. n Benjamin Carter Hett is Professor at Hunter College and the Graduate Center, CUNY; author of “The Death of Democracy: Hitler’s Rise to Power and the Downfall of the Weimar Republic” (London: WilliamHeinemann, 2018).