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[Editor's Note: The following essay by Matthew Specter, PhD candidate in modern European intellectual history at Duke University, was delivered as a lecture at the Internationales Forschungszentrum Kulkturwissenschaften in Vienna, 26 April 2004. The title of his dissertation is "Legality and Legitimacy: Jürgen Habermas's Reconstruction of German Political Thought."  I thank Mr. Specter for allowing me to post his lecture here. You may send him comments to the following email address: mgs2@duke.edu. I would also like to take this opportunity to remind visitors that they are welcome to submit articles or essays to be considered for linking or providing space on our site.]

Perpetual War or Perpetual Peace? Schmitt, Habermas and Theories of American Empire
Matthew Specter

The "war on terrorism" pursued by the Bush Administration since 9-11-2001 disguises a resurgence of American imperialism.  It is also a discrete new stage in the history of U.S. hegemony.  I am one of millions of U.S. citizens who believe that the Bush Administration has exploited the events of 9-11 for the purpose of an expansive strategy of remaking the world order.   I see in the politics of the neoconservatives who are running the Administration an expression of the political theory of Carl Schmitt.  Jürgen Habermas's commitment to a global rule of law, by contrast, represents a diametrically opposed vision to that of the Bush Administration.  Thus, my purpose in pairing Schmitt and Habermas today is to stylize the clash between the neoconservative and progressive liberal visions of world order.  Schmitt and Habermas offer us two different paradigms for conceiving today's American empire.

Since they were first translated into English twenty years ago, Schmitt's writings have enjoyed a major and still-expanding scholarly reception.  But only in the last few years has enthusiasm for his ideas expanded to include the anti-imperialist Left.  Let me be clear that I do not think the Left is submitting to any fascist tendency.  However, I do submit that the Left's efforts thus far to learn from Schmitt betray a skepticism about the value and feasibility of liberal ideals that we cannot afford, and should not indulge.  My conclusion is that if we want an international order based on the rule of law, the Left should give up its new fascination with Schmitt, and recognize the subtler strengths of Habermas's liberal vision.

The renaissance of interest in the political thinker Carl Schmitt, and the simultaneous reassertion of the American empire are not coincidental.  Schmitt is the philosopher of conflict par excellence. Carl Schmitt (1888-1985) was one of the most brilliant theorists of politics and constitutional law in the Weimar Republic. He belongs to the generation of "conservative revolutionaries" who saw in liberal democratic structures a camouflaging and weakening of the primordial force of the Volk.  Joining the Nazi Party in 1933, he became the most influential architect of the Third Reich's domestic and international law. He was named Crown Jurist of the Third Reich. Refusing the denazification procedures which allowed many equally compromised jurists to return to the universities after 1945, Schmitt was officially barred from teaching. But through his writings and a large network of disciples, he exercised a major influence on the jurisprudence and politics of the Federal Republic.  His major works include Political Theology (1922), The Crisis of Parliamentary Democracy (1926), The Concept of the Political (1927/32), Constitutional Theory (1928), and on international law, The Law of the Earth (1950). Preaching the politicization of law, and the deconstruction of the hypocrisies and illusions of liberalism, his combination of sober realism and engaged militancy earned him the nickname, "the Lenin of the bourgeoisie."

Formed by the influences of both the US occupation and reeducation on the one hand, and the Marxist traditions of the Frankfurt School, Jürgen Habermas (b.1929) sought to reinvent the promise of Enlightenment reason after Adorno and Horkheimer had pronounced its death in Auschwitz.  Drawing on elements from Anglo-American traditions of pragmatism and philosophy of language, and combining them with his core commitment to the emancipatory tradition that runs from Kant to Hegel and Marx, Habermas develops a "universal pragmatics" of language which describes the rationality of human communication. Habermas uses this model to ground his political ideal of a rationally deliberating public, in which everyone is both author and addressee of the law.  His major works include The Structural Transformation of the Public Sphere (1962), The Theory of Communicative Action (1981), Between Facts and Norms: Contributions to a Discourse theory of Democracy (1992), and The Inclusion of the Other (1999).  The decades of interventions that have made his reputation as postwar Germany's leading liberal public intellectual are well-known.

Given the astonishing cynicism with which the Bush Administration has handled, or usually outright rejected, international law, it is no surprise that segments of the intellectual Left have sought to enlist the bracing formulations of Carl Schmitt in the service of an anti-imperialist politics. The Bush Administration has no intention of releasing ultimate political, military and even economic control of Iraq, yet continues to pretend that there will be a full transfer of "sovereignty." These realities seem to confirm Schmitt's point about liberalism's hypocrisy. While contemporary events thus give plausibility to the writings of Weimar political theorist that, "sovereign is he who decides on the exception," and that the reality of world politics is the cleavage into "friend-enemy" antagonisms based on irreducible conflicts of interest, I will seek to convince you otherwise. The new empire is not as strong as it imagines itself.  It is likely to fail. Thus to fall into the vogue for Schmittian "exceptionalism" is to lose sight of the longer picture in which the prospects for successful American domination are poor. I will proceed in four steps.

First, I will argue that the politics of the Bush Administration are Schmittian. Second, I argue that anti-imperialist politics errs in trying to adapt Schmitt to its purposes. I argue that to accept Schmitt's "realism" as a realistic view of the world—which they do--is to let the Bush neoconservatives succeed in discrediting law. Anti-imperialist politics needs to avoid mirroring the views of its opponent, the new imperialist. Third, I describe Habermas's vision of a cosmopolitan society of world citizens, and explain his argument against Schmitt. Fourth, I review some of the most recent works on empire by social scientists which argue that the US empire will not endure. They argue that the U.S. cannot persist in exploiting its economic privileges or succeed in its geopolitical designs without intolerable consequences. Fourth and finally, I argue that the arguments of these social scientists, whom I call "the soft-power liberals," increase the plausibility of Habermas's theory of the relationship of law and legitimacy to political power.  In a phrase, my conclusion is: Law and norms matter.

Part I:  Are neoconservatives Schmittians?

The Bush administration was born under a Schmittian star.  The Supreme Court's judgment in Bush v Gore (2000) delivered the presidency to Bush through one of the most indefensible readings of constitutional law in American history.  So bald was this political instrumentalisation of constitutional law, that it would have made Carl Schmitt blush.  Aside from the circumstances of its birth, three features of Bush Administration policy make the label Schmittian seem a good fit. First, their decision to define the attacks of September 11 as acts of war reflects an understanding of Schmitt´s belief that politics requires an enemy, preferably a state.  Second is their strategy towards international law: formally reject it, or find a way to interpret it in your favor.  Third is their use of what Schmitt called the state of exception, or state of emergency to suspend normal constitutional protections. In this category one can put the attacks on civil liberties represented by the so-called Patriot Act, and the  illegal detention of terrorist suspects in Guantanamo Bay.

Critics of US foreign policy since WWII have long understood the mobilising function of the Communist threat.  With the collapse of the USSR, the global military presence of the US required a new justification. Popular culture and intellectuals alike struggled to fill the void that had been filled by the "evil empire." Political scientist Francis Fukuyama eulogised this condition in his 1989 work, arguing that the apparent triumph of liberal democracy and capitalism marked the "end of history." The next major intellectual effort to orient the U.S. in the post-Cold War world was political scientist Samuel Huntington's The Clash of Civilizations and the Remaking of World Order (1996), which has obtained a renewed audience after 9-11.  Huntington and Fukuyama's works both contain a Schmittian accent: Fukuyama's is in the characterisation of the triumphant liberal bourgeois order as a world without meaningful politics, political causes for which one would be prepared to die.  This pathos of conflict is Schmittian.  The same pathos of conflict can be found in Huntington's vision of an inevitable clash between regional power-blocs aligned on cultural lines.  Before 9-11, the Bush administration had been casting about for an enemy, and seemed to have settled on China.  The advantage of formulating the enemy as "terrorists and the states that support them," was that it gave the administration more discretion to choose whom to attack.

Schmitt's treatise on The Concept of the Political was a deep and unsparing critique of liberalism.  Schmitt believed that liberalism was not a political theory because it had no "positive" theory of the state.  In constitutionalism, he saw only "negative" mechanisms for controlling or separating power.  As he writes, liberalism "in a very systematic fashion negates or evades the political…there exists no liberal politics, only a liberal critique of politics." (CP, 70)  According to Schmitt, all states have internal and external enemies.  Being political means being able to recognise threats to the existence of the state.  Since in the extreme case, the defense of the state involves physical killing, Schmitt makes of this extremity the defining criterion of "the" political.  As he has famously written: "The specific…distinction to which political actions and motives can be reduced is that between friend and enemy… The friend, enemy and combat concepts receive their real meaning precisely because they refer to the real possibility of physical killing." (CP, 33)   The problem with liberalism, argues Schmitt, is that liberalism denies the existence of true, mortal enemies. "Liberalism…has attempted to transform the enemy into a competitor from the viewpoint of economics into a competitor and from the intellectual point of view into a debating adversary." (CP, 28)  Schmitt emphasizes the concreteness of political judgment, repudiating the idea that neutral or disinterested parties can or should make political decisions. "Only the actual participants can correctly recognize, understand and judge…whether the adversary intends to negate his opponent’s way of life and therefore must be repulsed or fought in order to preserve one’s own form of existence." (CP, 27)  In formulating its propaganda selling the wars on Iraq and Afghanistan, the Administration picked up on the essentially Schmittian insight that an enemy is not someone you negotiate with; an enemy must be totally annihilated.  Al Qaeda was said to want to "destroy our whole way of life".  Saddam Hussein's alleged weapons of mass destruction were represented as a "grave and gathering threat."  In his book An End to Evil: How to Win the War on Terror (2003), Richard Perle, one of the neoconservatives making policy in the White House, alleges that the US faces "intolerable threats" from the states who "sponsor" terrorism, and/or are seeking nuclear weapons: Iran, North Korea, Syria, Libya, and Saudi Arabia.  The Bush Administration's most notorious tag-lines also have a Schmittian flavor: the "axis of evil," and the "you're either with us or against us" speeches.

Schmitt's critique of international law follows from his critique of a depoliticising liberalism, its "view from nowhere." Richard Perle's views of international law are representative of the neocons in the Administration. On the day after the war on Iraq started, Perle drew out its significance: "The chatterbox on the Hudson will continue to bleat. What will die is the fantasy of the UN as the foundation of a new world order. As we sift the debris, it will be important to preserve, the better to understand, the intellectual wreckage of the conceit of safety through international law administered by institutions." Condoleezza Rice echoed Schmitt's contrast between the abstract and concrete in political judgment in her Bush 2000 campaign trail statement contrasting  the "firm ground of the national interest" with the "illusory interest of an international community." Compare former Clinton administration advisor Joseph Nye's argument that the national interest is "just what citizens, after proper deliberation, say it is." Where Nye admits global values and interests into a redefinition of the national interest,  the Schmittians, (Nye calls them "sovereigntists") rejects the cosmopolitan notion that a nations' enlightened self-interest might very well include  the collective interests of humanity--or to use Habermas' way of describing human communication--"no taking up the perspective of the other."

The connection between German political science and US foreign policy may seem far-fetched but it is both theoretically and historically well-grounded.  Consider the fact that the leading thinker of postwar realism in the U.S. was a German-Jewish refugee intellectual named Hans Morgenthau (1904-80).  Harvard political scientist Stanley Hoffmann has called Morgenthau, bluntly, "the founder of the discipline" of international relations. Like Schmitt, Morgenthau came out of the Weimar context in which the republic seemed powerless to repel its enemies.  Morgenthau extrapolated an analogous image of international law as the image of weakness, and emphasized many of the same points that Schmitt did. Both men saw the international realm as a realm of permanent struggle. Both believed that political order requires a powerful guardian who normally stands outside that order, but who is ready to intervene in case of emergency. Both were led logically into a so-called "decisionism" where it is either the Fuhrer or the prudent statesman who judges what is in the national interest. In contrast to Habermas or Nye's models, the public cannot be trusted with the defense of the national interest.  The writings of Henry Kissinger also display recognizable debts to Schmitt.

So if Schmittianism is a form of what the U.S. foreign policy community calls "Realism," why did the most prominent US Realists--Carter Administration advisor Brzezinski, Bush I advisor Brent Scowcroft, scholar John Mearsheimer, for example--argue passionately against the Iraq war?  The answer is that there at least two strands in realism, a more pacific and a more belligerent strand. One scholar has proposed that the two correspond roughly to their origins in the thought of 17th century Englishman Thomas Hobbes and Schmitt, respectively. On this reading, the Hobbesian is the "realism of peace", the Schmittian the "realism of war." The neocons are the realists of war.

Section 2. Attack of the left-Schmittians

Three Schmittian ideas have been most successful on the Left. The first is the notion of the radical indeterminacy of legal texts. The second is the critique of false universalism. The third is his notion of the contradiction between liberalism and democracy and the need to reconceive sovereignty. I will only have time today to speak of the first two. According to the mainstream of modern liberal theory, the rule of law requires that legal norms be general in character, and relatively clear in meaning. Clarity means that those who apply or enforce the law can be held to relatively coherent standards, and thus controlled. In domestic law, however, judges and administrators have had much room to interpret the law in a discretionary way. More than any other area of the law, international law is vulnerable to the charge of radical indeterminacy because of  its open-ended and vague norms. Worse still, it has limited means of enforcement and appears to function only at the pleasure or discretion of great powers. In crucial moments, every great power knows that is must remain the sovereign judge of its own political interests. Thus scholars coming out of Critical Legal Studies movement have begun to emphasise the radical indeterminacy of international law.

"He who invokes the word 'humanity' wants to cheat." Schmitt wrote famously in The Concept of the Political. The context was his discussion of the 1928 Kellogg Pact, which promised a legal ban on war. Schmitt´s reading of the Pact shows that it in fact only banned traditional wars of conquest, while sanctioning military action under the auspices of the League of Nations, acting in the alleged interests of "universal humanity." Schmitt believed that we should beware universalistic abstractions like "humanity" because of their false neutrality, their depoliticising character. The notion that wars might be fought "for the sake of humanity" has earned the scorn of a skeptical Left.  "It goes without saying," Arundhati Roy explained at the World Social Forum in January of this year, "that every war that Empire wages becomes a just war." Gopal Balakrishnan, the author of a solid study of Carl Schmitt, and a rising star at the New Left Review, exemplifies the left-Schmittian critique. In 2000, he called Schmitt's ideas "timely antidotes to the inebriating consensus on the big issues of war and peace in a new world order." Mirroring the pessimistic realism of the right, he makes the astounding claim that the international arena is a "state of nature."  As he writes, "Schmitt's relevance to commentary on international relations should be even more readily apparent (than it is to the hollowing out of contemporary liberal democracy). Here we leave behind the rule of law and enter the state of nature--a zone where the fictions of legality can be particularly pernicious." (265)

Left-Schmittians believe that the fictions of legality were deployed heavily in the NATO war on Yugoslavia in 1999. Danilo Zolo's recent critique of NATO's war in Yugoslavia borrows its title, Invoking Humanity, from Schmitt. The decision of the Clinton administration to use NATO to circumvent Russia's expected veto in the UN security council, and bomb Yugoslavia to stop Serbs from killing Kosovars, has been attacked by Noam Chomsky, Danilo Zilo and other left-wing critics of US imperialism, who mock the new "military humanism."

Section 3: Habermas's cosmopolitanism: constitutionalism internationalised

Like the majority of social Democrats and Greens in Germany, Habermas supported the NATO bombing. Habermas understood that having no UN mandate, the war was illegal. The UN charter prohibits interference in the sovereign affairs of other states. But he reasoned that under the premises of a new human rights politics, this intervention had the "tacit authorisation of the international community." It "could signify" a step in the right direction--namely, away from the classical international law of states to a "cosmopolitan law of a society of world citizens". For this logic he has been heavily criticised. Balakrishnan, for example, writes, "Habermas seems to conflate the idea of an international legal community with the immeasurably harsher realities of the American-headquartered New World Order…He doesn't seriously consider that this humanitarian rhetoric might be the expression of a violent, sanctimonious hubris in the face of rogue states." Habermas acknowledged that the NATO countries were "interested parties" who were acting "paternalistically" and that "NATO's self-authorisation cannot become…routine." But Habermas supported the intervention as an "unavoidable temporary paternalism" which would have to bridge the gap between the present and the future cosmopolitan condition.  How could the war appear legitimate to the philosopher who insists on the importance of legality?  His answer is consistent with the underlying premise of his political theory, which is that without democratic legitimation, legality remains illegitimate. With it, legality can be universally binding and valid. But the UN is an undemocratic organisation. Thus if we are to attain a global rule of law, we will also need to find a way to have global democracy. Until then, we are bridging the gap with admittedly incoherent measures. To this end, Habermas proposes major structural reforms of the United Nations. The cosmopolitan ideal envisions a world parliament, world judiciary and a security council reformed to include regional powers like the EU.

For fifty years, Habermas has been sparring with Schmitt. He takes him seriously, and so should we. As in the essay on the NATO war, so too in the 1995 essay on Kant's idea of perpetual peace, Habermas feels it necessary to provide a lengthy rebuttal of Schmitt's arguments. Schmitt had argued that the type of crusading liberalism exhibited in Yugoslavia subsumes what are really political distinctions between friend and foe under moral categories of good and evil.  Habermas calls this the "moralisation of politics." But he argues that Schmitt's charge that a human rights politics "moralises" politics is false because human rights are more legal than moral:  By this he means to emphasise that the legal form of human rights is more important than their moral content.  "The concept of human rights does not (originate) in morality…(They) are juridical by their very nature." (The Inclusion of the Other, 191) Thus it is erroneous to conflate human rights with moral rights.  Habermas believes that this distinction can defang Schmitt's argument that the global implementation of human rights obeys a falsely universal moral logic. If human rights are eventually institutionalised in a global legal order--what Habermas calls cosmopolitan law--then "violations of human rights (would) no longer be judged…from the moral point of view, but rather (would be) prosecuted like criminal actions within the framework" of an international legal order.

In response to the left-Schmittians arguments about false universalisms, Habermas has redeployed the argument of performative contradiction which he had used against Derrida and Foucault in the mid 80s: "…Any deconstructive unmasking of the (ideological abuses) of universalistic discourses…actually presupposes the critical viewpoints advanced by these same discourses.“ To Balakrishnan's charge that Habermas is a water-carrier for American empire, one can point to Habermas's April, 2003 article, "Interpreting the Fall of a Monument," written in the wake of the US capture of Baghdad.  In it, he clearly distinguishes the moralizing and morally inspired hegemonic universalism of current US policy from the pluralistic universalism of cosmopolitan, international law.  But there is at least one other objection to Habermas's vision which we should consider: the prospect that international law will never be.

Section 4: Why the theory of soft power makes Habermas's description of the international realm more plausible than the Schmittian or left-Schmittian

The notion that globalization produces interests that are genuinely multinational or collective cuts against the Schmittian argument that there are only particular, national interests.  This is what separates neo-liberals like Clinton from neo-conservatives like Bush.  Kant's vision of perpetual peace derived from an optimism about the integrating functions of economics and the shaming force of publicity.  Kant believed that nations, integrated through international trade, would join a federation of nations out of their own enlightened self-interest. Writing in 1995, Habermas's optimism is more qualified than that of his liberal forbears. "Globalisation splits the world in two, (but at the same time) forces it to act cooperatively as a community of shared risks." But the idea that globalization creates common interests is only one of the arguments of the "soft power" liberals. The more surprising argument is that norms matter. We neglect the facticity, or real effects, of norms at our peril.  When I began reading the current crop of books on empire, I did not expect to find this message.

But this is the message of the recent works on American empire by Joseph Nye, Charles Kupchan, Michael Mann and Chalmers Johnson. Nye and Kupchan are Establishment figures who remain committed to American hegemony, often called "leadership." But even in their work we find an acknowledgment of the limits of Realist doctrine.  There is a common finding in their work--that "soft-power"--that is to say, a sense of its legitimacy--matters. What Nye calls "soft power", Kupchan calls "strategic restraint." Both speak of "the paradox of power." Power-politics is not all there is to it. Power and law cannot be conceived with Schmitt or Morgenthau as antinomies, but as complementary.  This is what Habermas means by the "normative presuppositions of existing legal practices."

Examples from Joseph Nye, Soft Power: Why the World's Only Superpower Can't Go It Alone (2002):

"If the US wants to remain strong, it Americans need also to pay attention to our soft power. Military power and economic power are both examples of hard command power than can be used to induce others to change their position. Hard power can rest on inducements or threats. But there is also an indirect way to exert power…Soft power is…more than persuasion or the ability to move people by argument. It is the ability to entice or attract. And often attraction leads to acquiescence or imitation…Soft power arises in large part from our values."

"The impact of American preponderance is softened when it is embodied in a web of multilateral institutions that allow others to participate in decisions and (by acting as a sort of world constitution) limit the capriciousness of American power…Whether other powers will unite to balance American power will depend on how the US behaves as well as the power resources of potential challengers."

Examples from Michael Mann, Incoherent Empire, (2003)

"...The new imperialists overestimate American power by focusing only on military power. They forget that US economic power is somewhat fragile, they neglect political power altogether, and their actions completely contradict the sources of American ideological power."

"Hegemony involves multilateral commitment to the rules of the game and such commitment brought major advantages to the US…Americans must decide whether they wish to resume hegemony and then stick by its rules."

Examples from Charles Kupchan, The End of the American Era: U.S. Foreign Policy and the Geopolitics of the 21st Century (2003):

"Strategic restraint involves the withholding of power, thereby making room for newcomers and indicating benign intent."

"…to exercise strategic restraint is to give ground in order to gain ground, to expend less power, but paradoxically to realise more influence in doing so."

The constitutional analogy

"Institutions do for international politics what constitutions do for domestic politics--they tame the system and mute competition by binding actors to each other, and bounding their behavior through adherence to a common set of rules and norms."

Conclusion

The message of the soft-liberals is that hegemony is more sustainable when you play by the rules. When you break the rules with impunity, you get burned. You can't behave as the Schmittian sovereign who decides on the exceptional case. Chalmers Johnson uses the term "Blowback" to describe the unintended consequences of imperial hubris.  This was an old CIA term. Osama bin Laden’s Al Qaeda is the quintessential example of blowback, since as we all know, the US supported bin Laden against the Soviets.  The Habermasian affirmation of international law, human rights, and constitutional democracy may seem to resemble the prescriptions of the soft-power liberals, but it is not reducible to it. While some of those figures are trying to figure out how to smooth the path of the American hegemon, Habermas is not.  Habermas aims to dissolve American hegemony into a cosmopolitan order of equal citizenship under the law. As he has made clear in a number of essays, one most recently co-authored with Jacques Derrida in May, 2003, Habermas wants the EU to step out of the shadow of the U.S.  Moreover, Habermas follows other theorists of global, cosmopolitan democracy in advocating major structural reform of the United Nations.

In summation, Habermas' vision of a global rule of law is more realistic than Schmitt's more pessimistic vision of a world fragmented into competing imperial realms. The theorists of soft power lend plausibility to Habermas's idealism about law. US foreign policy Realism is not realistic. The colorful term "Blowback" signifies the inevitable return of the repressed. Ignore the legitimacy of legality, and it might blow back at you.