Among German intellectuals Carl Schmitt (1888-1985) is often depicted as a Mephistophelian figure: gravedigger of the Weimar Republic and Kronjurist (‘Crown jurist’) of the Third Reich. Yet, hitherto, his has never been a name to conjure with in the UK. Until, that is, the Attorney General, Lord Hermer, accused unnamed Conservatives of echoing Schmitt’s ‘realist’ jurisprudence, in particular the notion that ‘Britain [should abandon] the constraints of international law in favour of raw power’.

In his Locarno lecture in May at the Royal United Services Institute (RUSI), Hermer mentioned Schmitt four times but made little attempt to characterise his ideas. By implication, he identified Schmitt as the leading apologist for the usurpation of the rule of law, particularly on the international stage.

‘The claim that international law is fine as far as it goes, but can be put aside when conditions change, is a claim that was made in the early 1930s by “realist” jurists in Germany, most notably Carl Schmitt, whose central thesis was in essence the claim that state power is all that counts, not law,’ Hermer declared.

‘Schmitt’s so-called realism has for 80 years been refuted by the fact that these institutions, post-1945 institutions, have provided the basis until now for western and other states, wildly varied in nature, to interact with each other under conditions of peace and stability, all the while pursuing their own strategic interests,’ he continued.

‘Raw, wild power, on its own, in so many different calculi, has rarely been picked as a modus operandi because it was not, is not, a realistic way to advance national interests.’

Hermer was at pains to emphasise the British role in creating this postwar institutional and legal framework, ‘all a rejection of the discredited Schmittian conception of power’. The subliminal message was to pit the British as architects of the rule of international law against its nationalist arch-enemy, Nazi Germany. No doubt he had particularly in mind the British-inspired European Convention on Human Rights and the European Court of Human Rights in Strasbourg, which the Conservatives and Reform have criticised and have promised to leave if either party is elected. The Conservatives protested vehemently. Their leader, Kemi Badenoch, denounced him for ‘calling people who disagree with him Nazis’, and public opinion mainly agreed with her, causing Downing Street to force Hermer to issue an apology through his spokesperson:

‘The Attorney General… rejects the characterisation of his speech by the Conservatives. He acknowledges, though, that his choice of words was clumsy and regrets having used this reference [i.e. to Schmitt].’

Hence this first — and quite possibly last — emergence of Schmitt into British politics ended with a restoration of the consensus that his ideas might be of academic interest, but were still beyond the pale in the public sphere. This incident is more likely to prove ephemeral because the controversy was over before those ideas could be expounded, defended or refuted. Indeed, Hermer gave little indication of having grasped the distinctive nature of Schmitt’s theory of international law, as set out in The Nomos of the Earth in the International Law of the Jus Publicum Europaeum — a book published in 1950 at the height of the Cold War (or global ‘civil war’ in his terminology). One might postulate a connection between contemporary ‘realism’ (as practised by, for example, Henry Kissinger) and Schmitt’s vision of a world in which ideological conflict is restricted to regional or territorial disputes. This may avoid mutual annihilation, but it certainly does not prevent localised, yet potentially genocidal wars, such as we are now witnessing in Ukraine. Vladimir Putin is, wittingly or not, a thoroughgoing Schmittian.

Nor is it obvious how the perennial tension between realism and idealism on the planetary stage is illuminated by Schmitt’s approach, which is predicated on his own highly idiosyncratic definition of ‘the political’ as the distinction between friend and enemy. And on the specific issue that has dominated British politics for the past decade — how far supranational institutions, laws and conventions should override national sovereignty and democracy — Schmitt has nothing of direct relevance to say. His critique of the Versailles Treaty and the League of Nations has hardly any bearing on the present. However, we shall return to Schmitt’s theory of Grossräume (transcontinental spatial regions) and international law below.

I do not propose to discuss the flaws in Hermer’s case, except to note that his defence of liberal democracy places a disproportionate emphasis on a particular version of liberalism and not enough on democracy. Unless the international legal order, including and especially the courts created to interpret it, enjoy democratic legitimacy in the countries that bear primary responsibility for upholding that order, the public perception of these institutions is bound to be negative. Indeed, a court that consistently extends its jurisdiction, defies democratic decisions, and ignores precedent will gradually forfeit its claim to authority. Such a tribunal will no longer be seen as the embodiment of liberal justice, but of illiberal injustice. Such a tribunal, alas, is the European Court of Human Rights.

Politicians like to see themselves as public servants, but they cannot serve two masters. MPs swear an oath of allegiance to ‘His Majesty King Charles, his heirs and successors, according to law’. The Crown in Parliament, the source of British sovereignty, must take precedence over the frequently-invoked ‘rules-based international order’. The realisation that, for years, British governments have reversed this hierarchy by privileging international obligations over the national interest has been extremely damaging to public trust in and hence the legitimacy of its institutions, parties and values. When liberalism and parliamentary democracy are believed to be at odds with patriotism and the rule of law, the ultimate consequence is authoritarianism and dictatorship.

Carl Schmitt was the most prominent political thinker of Weimar Germany to have embraced these consequences with enthusiasm. He showed, both in theory and practice, how a liberal democracy can be dismembered, step by step, and how the rule of law can almost seamlessly turn into the rule of a dictator. It is Schmitt’s sinister yet compelling critique of parliamentary democracy, not his theory of international legal spheres of influence, that lends him an uncanny relevance to our present predicament.

In a little-noticed essay for the Catholic journal Hochland, published in 1926, Der Gegensatz von Parliamentarismus und moderner Massendemokratie (‘The Antithesis of Parliamentary Government and Modern Mass Democracy’), Schmitt argues that democracy consists in the identity of the government and the governed. For Schmitt, parliaments are intrinsically disconnected from mass democracy. Parliaments are literally talking shops, the product of 19th-century liberalism. But liberalism and democracy are not only identical: they are, for Schmitt, increasingly antithetical. The civil rights and liberties of the individual, the freedoms of the press and of conscience, are of little concern to the masses. For the majority, what we would call identity politics — class, religion, race, nation — are far more fundamental concerns. The more democratic a society becomes, the more disenchanted it will become with the parliamentary system.

Schmitt distinguishes between the crisis of democracy, the crisis of the state and the crisis of parliamentary government. Mass democracy ‘encounters Parliament as a no longer comprehensible, outdated institution’. Such an institution, based on ‘discussion’, cannot resist the ‘incontrovertible will of the people’.

Schmitt turns then to Bolshevism and Fascism. Both are, ‘like any dictatorship, anti-liberal, but not necessarily anti-democratic’. He is dismissive of the private, individualist ethos embodied in the mechanism of representative democracy, such as the secret ballot. He contrasts this ethos with the public nature of modern mass democracy: ‘The people exists only in the public sphere. The unanimous opinion of a hundred million private individuals is neither the will of the people, nor public opinion. The will of the people can be expressed by public acclaim, acclamatio, by self-evident, incontrovertible existence (Dasein) just as democratically, or even more so than with the statistical apparatus that has been constructed with such care over the past half-century,’ he writes. ‘In the face of, not only in the technical but also in the vital sense, direct democracy, Parliament, which has emerged from liberal ideas, appears as artificial machinery, whereas dictatorial and Caesaristic methods are not only supported by the acclamatio of the people, but can also be direct expressions of democratic strength and substance.’

Schmitt insists that the suppression of authoritarian parties will not end the crisis of parliamentary government. That crisis is caused neither by Bolshevism nor Fascism, but by the clash of ‘liberal individualism with its moral pathos and a democratic state ethos led by essentially political ideals… It is the profoundly insurmountable confrontation of liberal individual consciousness and democratic homogeneity’.

This essay appeared in a journal edited by Karl Muth, a notable Catholic supporter of the Weimar Republic and later an opponent of Hitler. In 1926 Schmitt was not yet a member of the Nazi party and apparently rejected their ideology. Yet Schmitt’s thesis that liberalism and mass democracy are incompatible marks him out as a gravedigger of the Weimar parliamentary system.

Six years later, he would play a key role when the last bastion of that system fell. On 20 July 1932, Chancellor Franz von Papen mounted a coup against the state of Prussia — by far the largest of the federal states (Länder) in the German Reich. A state of emergency was imposed, the Prussian Prime Minister Otto Braun was dismissed and President Hindenburg took charge of the administrative organs and police forces. The Preussenschlag (‘strike against Prussia’) removed the final obstacle to dictatorship but was, indeed, a rehearsal for the Nazi takeover of the whole Reich that would begin when Hindenburg appointed Hitler as Chancellor in January 1933.

Yet in the final weeks of the Weimar Republic, the legitimacy of such a blatant suspension of the constitutional order would be tested in court. At the trial before the Staatsgerichthof in October 1932, as the historian Hagen Schulze put it, ‘democracy and rule of law were pitted against the totalitarian state’. Appearing in court as the leading counsel for the Reich was Carl Schmitt. One eyewitness, an official from Baden who was no friend of the Prussian Social Democrats, reported: ‘What was presented by Professor Schmitt and his comrades in court was nothing less than the proclamation of a totalitarian state (Machtstaat), allowing the federal states “freedom” only if they renounced all autonomy. Nothing is left of the rule of law (Rechtsstaat) if the Reich constitution is interpreted according to the situation. What is left of the constitutional principles if “under certain circumstances” the fact that ministers belong to a particular party is proclaimed as sufficient ground for using force against a federal state?’

The court delivered an ambiguous, Solomonic verdict. It ruled that the Prussian government had not failed in its duties to the Reich, hence its suspension was unlawful, but that the president was entitled to seize control of the Prussian police and administration under Article 48 of the Constitution, which granted him emergency powers. A few months later, when the Nazis took control of all the Länder by force, no court even questioned their right to do so. Hitler’s Machtergreifung (‘seizure of power’) seemed to vindicate Schmitt’s authoritarian doctrine of sovereignty and his ‘concept of the political’ (reducing politics to the opposition between ‘friend and foe’). For a brief period, Schmitt was perhaps the most influential legal and political thinker in Nazi Germany. He fell from favour mainly because his theories were not radical enough for Hitler’s purposes.

However, in the eyes of his former pupil, the political and legal thinker Otto Kirchheimer, long before the demise of the Weimar Republic Schmitt had already become what he later called a ‘man of darkness’. Looking back after the war, Kirchheimer conceded that Schmitt had been ‘the most brilliant political thinker since Max Weber’, but he was appalled by the ‘evil’ Schmitt had perpetrated with his theories and his contribution to the fall of the Weimar Republic. Even worse, Kirchheimer was certain that Schmitt remained unrepentant and that his influence on the postwar world was therefore at best a dead end, at worst positively malign.

Although Schmitt never taught at a university again after 1945, his former pupils and posthumous disciples have played a significant role in political thought, especially in Germany and the United States. In America, rival schools of ‘Left Schmittians’ and ‘Right Schmittians’ have emerged. My own encounter with Schmitt’s ideas came via Jacob Taubes, a philosophy professor at the Free University, West Berlin, while I was on a graduate scholarship there in 1979-80. Taubes was a man of the radical Left, but at his seminar he gloated over a brief correspondence between Walter Benjamin and Schmitt, which had been deliberately omitted from an edition of Benjamin’s letters by Theodor Adorno. The point, for Taubes, was that Left and Right in Weimar Germany had not yet been so polarised that there was no common ground. He never revealed that he was in fact corresponding with Schmitt, who lived until 1985, in a strange re-enactment of the Weimar confrontation that had taken place more than half a century before.

The reason why this arcane chapter of intellectual history still matters is that the Trump administration and its acolytes in Europe are now following in Schmitt’s footsteps. Checks and balances, constitutional guardrails, separations of powers: all are being swept aside in the name of national greatness. At the root of Schmitt’s conception of politics is the definition of sovereignty in his Political Romanticism (1922): ‘The sovereign is he who decides on the exception.’

For Trump, too, the power to suspend the legal order, to impose a state of emergency, is the true test of presidential authority. We have seen, for example, how the White House has repeatedly overridden municipal or state administrations, using federal agencies and even the National Guard to enforce its policies. The barely disguised admiration for Putin’s authoritarian politics among Trump’s Republicans and the European nationalist parties is another sign of Schmitt’s influence. Putin’s chief ideologue, Alexander Dugin, is an avowed admirer of the German thinker. Indeed, Dugin’s ultranationalist New Eurasianism draws heavily on Schmitt’s geopolitical arsenal.

In his native Germany, too, the acolytes are multiplying. ‘Nothing is possible without Schmitt,’ writes Maximilian Krah, one of the leading figures in the Alternative für Deutschland (AfD). The party’s co-leader, Alice Weidel, also makes no apology for praising Schmitt. His treatise on Völkerrechtliche Grossraumordnung (‘International Law and World Order’), first published in 1941 at the zenith of Nazi power, is the ideological inspiration for the party’s foreign policy. In place of the liberal world order created by Anglophone powers after 1918, Schmitt proposed a theory of Grossräume (transcontinental spatial regions, or spheres of influence). As the dominant European power, Germany should be given a free hand on the Continent, just like the United States in the western hemisphere and Russia (then the Soviet Union) in Asia. External powers would be breaking international law if they intervened in other spheres of influence. Hence the British and French had no right to offer guarantees to Poland in 1939, thereby precipitating the Second World War when the Germans invaded, closely followed by the Soviets. Schmitt claimed that his theory would reduce, or even eliminate, the likelihood of global conflict. But his conception of a new world order, or Grossraumordnung, was merely the Molotov-Ribbentrop Pact writ large.

Adapted to the present world, Schmitt’s theory could be used to justify the Russian invasion of Ukraine, as a legitimate exercise of hegemonic power in one of the Grossräume now dominated respectively by the US, the EU, Russia, China and India. Weidel and her party rely on Schmittian ideas to promote German leadership in Europe; their ultimate goal is the dismantling of Nato and Atlanticism.

It is clear that Schmitt has cast a long shadow over domestic and foreign policy debates on the American, Russian and European illiberal Right. In these circles he is taken as seriously as his influence is sinister. Among intellectuals close to Reform UK, Schmitt has yet to emerge as a key reference. As for Conservatives: they still have a visceral aversion to thinkers so deeply imbued with Nazi affinities. Lord Hermer’s attempt to link Schmitt to an entirely separate Conservative critique of international legal institutions has failed to gain traction. Indeed, since the rise of Shabana Mahmood as the UK’s Home Secretary, Labour has become wary of the kind of uncritical faith in international law and human rights represented by Hermer. It is possible that British politics will carry on regardless of the explosive legacy of Carl Schmitt. Unfortunately, even an island nation cannot entirely ignore the surrounding climate of ideas — even if those ideas are actually ideological viruses that once escaped from the infernal laboratory of the Third Reich.