Wednesday, May 26, 2010

Schmitt and Hayek

One of the themes I briefly touch on in The Meaning of David Cameron is the influence of undemocratic radical right-wing political theory on neoliberalism. I wish, then, that I'd had a copy of William Scheuerman's Carl Schmitt: the end of law handy when I was writing. Here are some extracts from the essay 'The Unholy Alliance of Carl Schmitt and Friedrich A Hayek'. Having established that Schmitt used Weimar Germany's liberal legal principles to help defeat the left's agenda of redistribution and melioration, Scheuerman stress that Schmitt's intervention on behalf of liberalism was entirely strategic:

Throughout the Weimar period, Schmitt was on principle a critic of liberal jurisprudence. Indeed, his recourse here to elements of the liberal rule of law is purely strategic. At many junctures in the 1926 study, it indeed becomes clear that Schmitt merely means to suggest that as long as the Weimar constitutional system is committed to legal liberalism, it must endorse a traditional model of the rule of law and, by necessity, conflict with the left's attempt to undertake individual legal measures against royal property.5 By no means should we read Schmitt's employment of traditional strands of liberal legalism as an expression of a genuine sympathy for the liberal rule of law. As was shown in part 1, Schmitt deconstructed that ideal well before publication of his 1926 pamphlet. Schmitt in 1926 merely speaks as a constitutional lawyer intent on informing his countrymen that if they aspire to take the liberal features of the Weimar Constitution seriously, they necessarily must oppose left-wing legal acts as inconsistent with the idea of general law ... Schmitt cleverly transforms the traditional ideals of liberal legalism into a weapon against Germany's first attempt to secure a stable liberal democracy. In chapter 3, I note that Schmitt occasionally relies on traditionalist legal liberal ideals in order to subvert legal liberalism. This is precisely the strategy taken here in his reflections on the rule of law and the welfare state.

Any form of particular or specialised act of social regulation, expropriation or redistribution - the case galvanising Schmitt's intervention was an effort by socialist and communist legislators to expropriate the property of the overthrown Kaiser - is, claims Schmitt, in principle a violent and revolutionary act that is incompatible with legal liberalism. Specifically, the 'generality of the law' means that its principles must apply equally to all - any act of regulation or redistribution that targets one class or social group to the benefit of another is contrary to this generality. Suffice to note that this relies on an obscurantist reading of liberalism, but it gave Schmitt the tools with which to oppose the democratic welfare state.

As we discused in chapter 4, Schmitt argues that powerful organized interest groups colonize the Weimar governmental apparatus to such an extent that the German regime is no longer capable of standing above and beyond antagonistic, organized political and social constituencies and resolving conflicts among them. In Schmitt's at times downright apocalyptic account, the emerging welfare state entangles government in a multitude of social and economic spheres. But this entanglement simply results in a crippling of the state's autonomous decision-making capacities; the welfare state no longer allows government to serve as an effective arbitrator among competing interest groups. The "pluralist party state" fails to "distinguish between friend and foe."10 The emergence of the democratic interventionist state threatens to plunge contemporary politics into a potentially explosive political crisis in which an ''ethics of civil war" may be needed to guide political action. The integrity and coherence of the governmental decision-making apparatus are undermined so drastically that constitutionalism in the modern welfare state increasingly amounts to little but an attempt to reach a fragile "peace treaty" among hostile agglomerations of social and political power.11

This is a high octane, radical rightist version of the critique of welfarism that 'public choice' economists would later develop. They essentially maintained that the welfare state entangled the government in various "special interests", undermining its capacity to act as an independent arbiter and efficient administrator. The best state was a minimal state, and one organised on the model of the market.

Although Schmitt repeatedly blames social democrats and their jurist friends for having brought Germany to the brink of political collapse, his Judicial Independence, Equality Before the Law, and the Protection of Private Property According to the Weimar Constitution still leaves open the possibility that the abandonment of liberal general law may be justified amid a serious political crisis. Even in 1926, Schmitt conceded that a crisis could require an emergency dictatorship ready to abandon so-called normativistic liberal law in favor of individual measures and commands.14 In the face of the left's attempt to construct the democratic welfare state as we have seen, for Schmitt this trend constitutes an implicit revolutionary threat just such an emergency regime is what Schmitt now proposes. With the emergence of executive-based quasi-authoritarian regimes (under Heinrich BrĂ¼ning and then Franz von Papen) in Germany in 1930,15 Schmitt outlines a disturbing defense of a plebiscitary dictatorial system guided by precisely those individual measures and commands whose dangers he had seemed to warn his German readers about just a few years earlier. By means of an idiosyncratic reworking of the classical liberal democratic aspiration to distinguish general (parliamentary) laws from individual (executive) decrees, Schmitt provides a justification for a discretionary emergency dictatorship, in his view absolutely necessary if the inept, inefficient and politically perilous "pluralist party state" is to be replaced by a system superior to it. As Peter Gowan has similarly noted, Schmitt hoped to jettison the democratic Weimar welfare state for an authoritarian alternative, a new type of interventionist state that would succeed in divesting itself of burdensome "welfare obligations, [and] commitments to protecting [the] social rights" of subordinate social constituencies. 16 According to Schmitt, the "quantitative total state" a weak, social-democratic inspired interventionist state should be replaced by a ''qualitative total state" an alternative brand of interventionism, but one that guarantees authentic state sovereignty while simultaneously managing to provide substantial autonomy to owners of private capital.17

Indeed, the view that an emergency dictatorship may be necessary to conserve the kernel of liberal social relations against democratic intervention is shared by many neoliberals and their intellectual antecedents, from Mises' apologia for fascism and alliance with the Dollfuss dictatorship, to Hayek's sympathy for Pinochet.

Hayek was sympathetic to Schmitt's paradoxical stance - supporting an illiberal, interventionist state as a means to restore liberal non-interventionism. He noted that Schmitt was highly sympathetic to the early era of undemocratic liberalism, but did not believe that it would be possible in the modern era to replicate it. There would have to be interventionism, but not of a kind that would threaten or abridge the rule of capital. Hayek himself had viewed such abridgments in 'New Deal' America and social democratic Europe with horror. In his best-selling polemic, The Road to Serfdom, he appropriated some of Schmitt's arguments:

Addressed "to the socialists of all parties," Hayek's The Road to Serfdom dramatically argues that the emerging democratic welfare state is destined to undermine the rule of law and the legal predictability and certainty guaranteed by it.21 For those familiar with Weimar-era legal debates, much of Hayek's account is surprisingly unoriginal. His own intellectual socialization, as he seems to concede on several occasions, took place in the shadow of the Weimar debates.

Inadequately sensitive to the fundamentally instrumental character of Schmitt's occasional recourse to legal liberalism, Hayek seems to parallel Schmitt's analysis in a number of respects. 22 First, Hayek relies on a dramatic contrast between general law and individual commands or measures, and his definition of general law is exceedingly open-ended: reminiscent of Schmitt, Hayek states that the rule of law requires that statutes not refer to the "wants and needs of particular people."23 Although Hayek claims to derive this view from classical liberal political thought, he provides little real textual support for this view in The Road to Serfdom; as a matter of fact, classical concepts of general law are more complicated than Hayek suggests.24 Second, Hayek argues that the growth of state intervention in the economy culminates in a "total state." Of course, Schmitt had introduced this term into German political thought in 1930 when describing the same phenomenon, in which the classical liberal state/society distinction allegedly loses any real significance, and Hayek expressly cites Schmitt's statement in The Guardian of the Constitution that the "neutral state of the liberal nineteenth century [is being transformed into] the total state in which state and society are identical."25 Most importantly, Hayek seems to endorse Schmitt's central thesis. For Hayek, as for Schmitt, the emerging welfare state necessitates arbitrary forms of situation-oriented legal action, and it inevitably cripples parliamentary authority. The mere fusion of state and society, manifested most unambiguously in the contemporary democratic welfare state, unavoidably generates arbitrary government. Hayek shares Schmitt's view that the logic of the interventionist state corresponds most closely to a plebiscitary dictatorship, in "which the head of government is from time to time confirmed in his position by popular vote, but where he has all the powers at his command to make certain that the vote will go in the direction he desires."26 In Schmitt's categories, the interventionist state is decisionist to the core, and a mass-based plebiscitary dictatorship is best suited to the imperatives of a legal universe destined to take on increasingly decisionist characteristics.

Hayek was a classical liberal, not a fascist. He pitched his case in terms of a desire to avoid any fascist emergency, and in general he preferred liberal democracy - not in principle but as a means toward the education of the public and the containment of pressures for socialist measures. But his paleoliberal case for neoliberalism, if you like, mirrors Schmitt's fascist strategies in important ways:

Thus, Hayek opts for a radical curtailing of the welfare state and a return to the "neutral state of the liberal nineteenth century." Allegedly, we can avoid the "road to serfdom," by taking the road back to that historical period when the purported fusion of state and society had yet to occur.

Although The Road to Serfdom refers to Schmitt on a number of occasions, Hayek's comments there are misleading. He criticizes Schmitt's Nazi-era polemics, while conveniently ignoring the extent to which his own account of legal decay in the administrative state parallels the idiosyncrasies of Schmitt's argumentation. In subsequent years, however, Hayek is far less reticent about acknowledging his debts to Schmitt. In The Constitution of Liberty (1960), which builds on the basic argument of The Road to Serfdom, Hayek introduces his definition of general law which Hayek, like Schmitt, considers the centerpiece not only of the rule of law-ideal, but also of liberalism itself 28 by citing Schmitt's major Weimar-era studies and commenting that "the conduct of Carl Schmitt under the Hitler regime does not alter the fact that, of the modern German writings on the subject, his are still among the most learned and perceptive."29 Though Hayek refers to a number of additional sources for his definition of law, he seems to attribute a special place to Schmitt, whom he considers the most impressive opponent of Weimar legal positivism and its disastrous quest (for Hayek, as for Schmitt) to blur the distinction between general law and individual commands and measures. Indeed, Hayek's 1960 study can be interpreted as an attempt to struggle with the limits of Schmitt's problematic definition of the generality of law. At many junctures, Hayek seems to follow Schmitt in suggesting that legal generality is incompatible with any form of legal differentiation or specification whatsoever.30 But in The Constitution of Liberty he appears to recognize the limits of the extreme character of this view. Now he admits that general law is consistent with legal specialization, as long as no individual person or object is explicitly named, and a particular legal category is acceptable both to those who fall under it and those who fall outside it.31 Soon Hayek appears to throw his hands into the air in desperation: he admits that "no entirely satisfactory criterion has been found that would always tell us what kind of classification" is compatible with the ideal of general law.32 This concession is truly astonishing, given the centrality of the concept of general law to his entire project. Even scholars sympathetic to Hayek's political agenda have emphasized the ambiguity of his definition of general law, and some have even gone so far as to deem it incoherent.33 But such commentators ignore the manner in which Hayek's open-ended definition of general law allows him, in a man ner once again similar to the twists and turns of Schmitt's analysis of legal decay in the welfare state, to rely on what initially seems to be a constant in his theory (the centrality of general law) so as to accord with the immediate imperatives of the political struggle against defenders of the welfare state. Hayek undoubtedly remains hostile to the interventionist welfare state throughout his intellectual career; this is inevitable given his view of the decisionist character of legal action when state and society have fused and the welfare state begins to emerge. But the intensity of this hostility clearly shifts. In his 1976 Preface to The Road to Serfdom, Hayek himself admits that he had not freed himself adequately in 1944 from "interventionist superstitions," 34 and his final study, the three-volume Law, Legislation, and Liberty (written in the 1970s, amidst immense dissatisfaction with the welfare state and growing neoconservative political strength) is far more belligerent in its antiwelfare state polemics than The Road to Serfdom, which was written at a moment of broad sympathy for traditional left-wing economic policies. Because some versions of Hayek's definition of general law suggest that virtually any form of state intervention is incompatible with general law, whereas others provide at least some room for welfare state-type activities, this ambiguity is probably inevitable. Hayek's reliance on Schmitt generates a number of strikingly "decisionistic" elements within the core of his own project.

Moreover, in the later stages of Hayek's career, when his doctrines were taken up by an aggressive New Right that was overseeing the blood-spattered laboratory experiment in Chile, Hayek began to more explicitly align himself with Schmitt's attack on the "plurality party state":

[H]e is quite honest about this: because the tendency toward legal decay in the interventionist state "has been most explicitly seen" by Schmitt, Hayek writes in Studies in Philosophy, Politics, and Economics, he believes that he can use Schmitt's detailed analysis of the democratic welfare state in order to criticize it.36 Although Schmitt "regularly came down on what to me appears both morally and intellectually the wrong side," Hayek notes subsequently in Law, Legislation, and Liberty, the flawed character of the contemporary democratic welfare state "was very clearly seen by the extraordinary German student of politics, Carl Schmitt, who in the 1920s probably understood the character of the developing form of [interventionist] government better than most people." 37 Hayek's 1970s restatement of Schmitt's critique of the Weimar welfare state culminates in a series of institutional proposals having rather disturbing and even authoritarian implications.

...He argues that the disintegration of general law generates a situation in which governmental authority is handed over to competing organized interests. When general law is abandoned, traditional liberal democratic institutions undergo a dramatic functional transformation. Open debate and political exchange within parliament are replaced by bargaining among bureaucratic parties more concerned with having their narrow interests represented than with engaging in liberal dialogue with their political opponents. Parties become amalgams of special interests aiming to have their (particularistic) desires achieved by particular or individual laws. Legislatures are so busy providing special favors to interest groups, and their activity is no longer distinct enough from that of administrators, that they no longer have time even for meaningful political deliberation.38

When government is permitted to issue measures and commands, it makes sense for legislators to appeal to privileged, particularistic interest blocs; allegedly, this danger is reduced when legislators are allowed only to issue general rules and, thus, commit themselves solely to policies embodying the common good. Because contemporary liberal democracy has betrayed the traditional concept of general law, a "para-government has grown up, consisting of trade associations, trade unions and professional associations, designed primarily to divert as much as possible of the stream of governmental favour to their members."39 Since the legislature is no longer limited by the requirements of legal generality, it is nominally omnipotent. But in fact it "becomes as a result of unlimited powers exceedingly weak, the playball of all the separate interests it has to satisfy." 40 The overall account of the contemporary welfare state here is very much like Schmitt's: supporters of the welfare state and their legal positivist allies ignore the virtues of legal generality, thus paving the way for the fusion of state and society and a "quantitative total state" that intervenes in a multitude of social spheres and seems all-powerful, but in fact is robbed of any real decision-making authority.

If the liberal state had become a vehicle for struggle between the classes ('interest groups'), Hayek's response was to limit the ability of the classes to influence fundamental state decisions by delegating legislation to a new upper house that would be elected only every fifteen years, "so that they would not be concerned about being re-elected". Moreover, the electorate should be comprised of people of a particular (older) age, who would vote only once in their lives, thus encouraging maturity among the electorate and innoculating them from a tendency to vote on the basis of special interests. This upper house would determine the legislative framework within which the government would act, and the government's activities would be restricted to specific applications of the law, the allocation of resources to particular purposes, etc. Government would be a technocratic, not democratic, matter:

Two features of Hayek's curious institutional proposal are of special significance for us here. First, a real conceptual tension manifests itself in Hayek's political model, and it probably stems from his implicit dependence on Schmitt. Repeatedly, Hayek in Law, Legislation, and Liberty argues that "governmental" activities are unavoidably discretionary. This point is consistent with his endorsement of Schmitt's thesis that state intervention in social and economic affairs tends to require a decisionistic legal form. 44 But how then would it be possible to subordinate or regulate these activities in accordance with general legislative norms? If they are truly decisionistic and thus a profound threat to freedom it would seem that Hayek would probably have to exclude this possibility. By definition, decisionist state activity cannot be regulated in accordance with classical liberal legal norms. Hayek's dilemma looks something like this: either interventionist activities are genuinely decisionist and thus cannot be effectively subjected to "normativistic" general rules, or they may not be all that decisionist after all, and thus need not imply that the welfare state has already taken significant strides down the "road to serfdom." Unfortunately, Hayek sometimes wants to have it both ways. He wants to warn people of the inevitable perils of growing state activity and to claim, at least implicitly, that state activity may not be all that worrisome since it potentially could be regulated in accordance with general law.45

Second, one needs to ask whether Hayek's model deserves to be considered compatible with the basic ideals of modern liberal democracy. Liberal democracy has taken relatively distinct institutional forms in modern history. This fact should suggest that liberal democratic ideals are compatible with a rich diversity of institutional mechanisms. Could Hayek's proposals here pass some hypothetical test or standard that we might come up with for determining whether a particular set of institutions can still be deemed liberal democratic? To be sure, his model would result in a vast reduction in existing possibilities for democratic participation, and a sizable number even of the rather apathetic citizens found in contemporary liberal democracy would probably see them as constituting a substantial rollback of some of their most basic democratic rights. If we were to answer this question in the negative, it might further suggest that Hayek's reliance on Schmitt has proven rather costly. For then we could interpret Hayek's argument as an implicit concession to Schmitt's view that the "pluralist party state" ultimately can be transformed effectively only by authoritarian means. As noted above, Schmitt openly endorsed aspirations to free the interventionist state from social policy-based obligations to subordinate social groups, and he advocated a new form of interventionist politics, but one allegedly distinct from its Weimar predecessor in part because of its guarantees of autonomy to the owners of private capital.

If the neoliberal project is a restorationist one that consolidates the power of capital with respect to its opponents, it has accomplished this substantially by "hollowing out" the state, by depriving it of democratic and representative capacity, by treating governmentality as a technocratic issue, the efficacy of which can best be measured by its resemblance to market transactions in the private sector. The new rightist radicals, and their assault on the 'special interests' and 'old elites', amounted to an outright attack on democracy. It is to the success of this project above all that we must credit our current democratic impasse, the imperviousness of the state to pressures from below, and the growing disengagement of significant layers of the population from electoral politics.

Well, anyway, if this sort of stuff interests you, I'd like to talk about it with you at 7pm tonight at Housmans' bookshop, where I'm launching The Meaning of David Cameron. A combative discussion of our new Lib-Con masters, their spending cuts and downsizing, their claim to "progressive" politics, and their attempted simulation of democratic enfranchisement, is urgently required.