In this excellent book, Mariano Croce and Andrea Salvatore persuasively place in question the still prevalent assumption that Carl Schmitt’s main contribution to legal thought is the “exceptionalist decisionism” of Political Theology (1922). While it is “pointless” to seek a single consistent theory of law in Schmitt’s oeuvre (p. 1), Croce and Salvatore contend, it is nonetheless guided throughout by the question as to how the state can “secure the stability of the political community” and promote a “fixed set of loyalties and allegiances” (p. 2). Schmitt’s central contribution is “an institutional theory of law and politics that exalts legal science as a jurisgenerative practice that shelters a community’s institutional practices and its institutional identity” (p. 2).
Croce and Salvatore’s argument builds on their earlier scholarship, including The Legal Theory of Carl Schmitt (New York 2013). One impressive feature of the current book is that it combines a rigorous and astute synoptic perspective on Schmitt’s legal thought, inclusive of neglected earlier and later works, with an in-depth grasp of particular texts, their political and historical context, and their complex connections and modifications. Croce and Salvatore flag clearly that they find many of Schmitt’s assumptions and commitments reprehensible (see, e.g., pp. 5, 120). Notwithstanding their ambivalence on Schmitt’s juristic contribution, Croce and Salvatore’s reconstruction leaves the overall impression that it contains insights that are still worthy of close critical engagement.
The structure of the book reflects its overarching argument that the guiding thread of Schmitt’s legal thought is the institutional “concretisation” of normality, rather than exceptionalist decisionism. Chapter 1 proposes a “revisionist” reading of Political Theology as a primarily jurisprudential work concerned with the theme of legal order and unity (p. 9). For all its seductive rhetoric and intriguing deployment of political-theological and metaphysical concepts, Political Theology should ultimately be read as an attempt to explain “what it is that turns a set of norms into a unified legal order” (p. 12). It is this question which animates Schmitt’s critique of Hans Kelsen’s legal positivism, which (according to Schmitt) avoids the central question of jurisprudence, because it neglects to consider the underlying foundations of legal unity and order. It is also this question which ultimately explains Schmitt’s valorisation of the sovereign decision. Schmitt’s core argument in Political Theology, Croce and Salvatore argue, is that “one can cognise and recognise the existing legal order only by looking at what happens if the order needs to be suspended” or a state of exception declared (p. 16). The “structural autonomy,” of the legal system (p. 24), on this view, is best identified by considering its (non-formal) preconditions. Whereas in other (earlier and later) works Schmitt seeks to uncover those preconditions by reference to concrete institutional structures and social practices of belonging and normality, Political Theology problematically tends to detach the sovereign decision from its integration within “the wider conceptual frame shoring up the community life” (p. 25).
Chapter 2 provides an illuminating discussion of Schmitt’s early jurisprudential writings, including Über Schuld und Schuldarten: Eine Terminologische Untersuchung (1910) and Statute and Judgment: An Investigation into the Problem of Legal Practice (1912). The former characterises guilt as “one’s disposition to act in such a way that the legal order can interpret and qualify it as inadmissible based on objective reasons internal to the order” (p. 29). This approach, Croce and Salvatore demonstrate, has affinities with Schmitt’s later attempt to ground the coherence and unity of a legal system in concrete orientations towards communally privileged ends (p. 30). In Statute and Judgement, Schmitt investigates the “conditions under which a judicial decision can be deemed to be correct from a point of view that is internal to judicial practice” (p. 31). According to Croce and Salvatore, Schmitt’s argument asserts the indispensability of “normality and regularity” (p. 33) for judicial practice, a position which is “anti-decisionist” in its implications and anticipates Schmitt’s later institutionalism (as does the position of the underappreciated Roman Catholicism and Political Form (1923)). Chapter 2 concludes with an analysis of Dictatorship (1921) which corrects the tendency of some interpretations to read it one-sidedly through the lens of “exceptionalist decisionism.” Unlike the unmediated sovereign of Political Theology, Croce and Salvatore insist, Schmitt’s dictator is a “delegate” of a higher authority (pp. 39-41): the existing legal order as interpreted by expert jurists (p. 44).
In Chapter 3, Croce and Salvatore critically scrutinise the ambiguities and weaknesses in Schmitt’s famous characterisation of “the political” in terms of the friend-enemy distinction in The Concept of the Political (1927). They largely vindicate well-known existing critiques of Schmitt’s theory of “the political.” Apart from opening the door to “political existentialism and its unfathomable forces” (p. 50), Schmitt’s theory of “the political” saws “off the branch it is sitting on” (p. 57). Its attempt to identify a “universal” or “invariant” condition for politics would seem to lack any justificatory grounds to rely on when it is itself challenged as theoretically “partial.” Croce and Salvatore conclude the chapter with the assessment – which distils the central thesis of the book – that the “sovereign decision” of exceptionalist decisionism is ultimately “an isolated intervention that simply displaces … the much more urgent problem of regulating the interactional patterns of a given social context” (p. 65) and of a stable and durable legal-institutional system. For Croce and Salvatore, Schmitt’s most famous texts – Political Theology and The Concept of the Political – turn out to be his least conceptually sound and jurisprudentially fruitful theoretical contributions (p. 49).
Chapter 4 tracks Schmitt’s abandonment of “exceptionalist decisionism,” in part through an interpretation of The Concept of the Political which emphasises (despite the weaknesses identified in Chapter 3) its connections with later concrete-order and institutionalist arguments. Croce and Salvatore characterise “the political” as an epistemic (p. 74) notion, “a gradient of intensity” (p. 72), that is more “polemogenic” than “polemical,” in the sense that it is the “possibility” of mortal conflict that is essential. This suggests a reading of The Concept of the Political firmly grounded in Schmitt’s broader constitutional and legal theory, according to which a constitution is “first and foremost” (p. 75) a concrete social order (here Croce and Salvatore gloss over some of the ambiguities in Schmitt’s analytical distinction between the “positive” and “absolute” conceptions of the constitution – see discussion below). The fundamental problem for modern constitutional orders is the possibility of establishing unity, order, and stability in the face of political and social pluralism. Schmitt’s concept of the political, which the concept of the state presupposes, may be understood as an attempt to uncover the preconditions for the state to maintain a stable monopoly over political power (p. 79).
In Chapter 5, Croce and Salvatore turn directly to the institutionalist dimensions of Schmitt’s work. The theme of “social order and how it should be secured by political and legal institutions” (pp. 85-6) was always central for Schmitt. Schmitt’s concept of an institution refers, moreover, not merely to “an agency or public body … endowed with organisational authority” (p. 86). It rather reflects a focus on the concrete forms of life, associational commitments, and patterns of communal normality, grounding “the legal phenomenon” (p. 90). This includes the constitution as an expression of a collective decision (p. 91), a view which provides crucial background for Schmitt’s justly influential critique of the bourgeois Rechtsstaat, the liberal constitutional order serving the “interests of a mercantile and bourgeois society” where “selfish individuals” seek to “maximise profit” at others’ expense (p. 96). Croce and Salvatore frame On the Three Types of Juristic Thought (1934) – a key text for Schmitt’s mature institutionalist and concrete order jurisprudence – in this context; rejecting positivism and one-sided decisionistic and normativist accounts of legal norms, Schmitt here contends that “norms are to be understood as behavioural standards that emerge out of a dynamic relation to the practices they are meant to regulate” and as the crystallisation of “sedimented social practices” which reflect a determinate historical tradition (p. 101) and its associated political ends.
Chapter 6 characterises Schmitt’s “concrete order thinking” of the 1930s as a “politics of normality” that is in an ambivalent relationship with earlier theories of legal institutionalism developed by Maurice Hauriou and Santi Romano. While Schmitt, like earlier theorists of immanent institutional order, regards the law as rooted in a set of practices, he also privileges the idea of a totalising order (Gesamtordnung) as the foundation for a juristic interpretation of normality (p. 114). This leads to a rather ominous view of legal order as a “complex of institutional models” and “guiding figures” in which a violation of a legal norm can threaten the “whole concrete order” (p. 115). While such a picture of law is perhaps intelligible as a reaction to a formalistic or artificial abstraction of legal norms, in the hands of Schmitt it is marshalled for a “despicable” theory of the role of the Leader (Führer) in defending an ethnic identity that can putatively be safeguarded by juristic expertise (p. 120).
In Chapter 7, Croce and Salvatore offer a thought-provoking account of Schmitt’s later work, with a focus on its striking attribution of a decisive historical, political, legal role to the figure of the jurist. The first part of the chapter engages with Schmitt’s adoption of the classical Greek concept of nomos to describe “the concrete order of a concrete community” (p. 127). While correctly noting the underdeveloped and even “superficial” aspects of Schmitt’s deployment of nomos, Croce and Salvatore also acknowledge that it provides a partial answer to the question of the origin of “institutional” forms in its focus on the concretely and historically situated character of acts of appropriation (p. 132). The chapter closes with a discussion of Schmitt’s 1944 “eulogy” (p. 133) to juristic science: The Plight of European Jurisprudence. Here Schmitt declares that “[j]urisprudence is the true source of law” (p. 134), on the grounds that jurists are responsible for the reception of legal traditions and are the guarantors of “the unity of political space” (whether within or outside territorial borders) (p. 134). Jurisprudence, Schmitt seems to claim, is self-sufficient and independent of any “external orderings” (p. 135). This “juristic institutionalism” has some affinities with Schmitt’s early work in its appeal to the importance of law application for social stability, but seems to go further in its subordination of politics to legal science understood as the proper “guardian” of concrete order.
As suggested above, Croce and Salvatore’s coverage of Schmitt’s legal thought is extensive, and their discussion of lesser known earlier and later texts such as Statute and Judgment and The Plight of European Jurisprudence opens up promising lines of inquiry for future scholarship. One text that is relatively neglected by Croce and Salvatore is Constitutional Theory (1928), which is introduced at important parts of the argument but is not the subject of a sustained analysis. There are elements of Croce and Salvatore’s reconstruction of Schmitt’s institutionalism that would nonetheless seem worthy of closer investigation for future interpretations of Constitutional Theory. As Croce and Salvatore note, in On the Three Types of Juristic Thought Schmitt implies that “a system of norms exists only in a dimension in which particular ‘underlying’ ends and values yield particular patterns of conduct and particular relations of supremacy and subjection” (p. 121). This not only connects Schmitt’s institutionalism with recent debates on the material constitution and common good constitutionalism. It also offers a way of reconstructing Schmitt’s analytical distinction between absolute, relative, positive and ideal senses of the constitution that would shift emphasis from the “efficient” cause of constituent power to the “final cause” of a well-ordered political community.
