 liberalism, represented the effort to legally restrict the power of kings so as to guarantee the domain of bourgeois rights and to insert a space for the people’s participation in parliament―through the election of representatives. His powerful critique, The Crisis of Parliamentary Democracy, outlined the basic principles of parliamentarism, or liberalism: 1) an openness, instituted through freedom of the press, that checked the absolute, arbitrary and secretive power of princes; 2) a division of powers that replaced the absolute unity of the monarchy and created the possibility of an equilibrium achieved through negotiations; and 3) the parliamentary creation of the people’s law through an open, public discussion that was to produce truth and justice and replace the force at the basis of monarchy (Schmitt, 1923a: pp. 36-49).
Democracy, to Schmitt, was a different project entirely. As the formal manifestation of the principle of popular sovereignty, democracy proposed a project of self-determination that equated the people with the state; in understanding the people as the national substance of the state, democracy was based on a principle of equality and homogeneity. Thus the self-determining people were one and equal; and foreigners, colonial subjects, and other “outsiders” were not the equals of this democratically constructed citizenry. Schmitt of course referred to Rousseau’s “social contract” in evaluating democracy, and he faulted Rousseau for pairing the social contract with a homogenous people, as a grounding of the “general will” that was in turn identified as law.5 To the contrary, Schmitt observed, modern democracies in practice were composed of heterogenous peoples whose coherence depended on an identity posited between the governed and the governing, with the result that, far from a people’s social contract producing a general will, democratic states found themselves committed to extending the franchise in order to encourage the people to identify with the state.6 The result was an indistinct “we-hood” more abstract than concrete, and amenable to any political purpose―both bourgeois and Bolshevik versions of “the people” were arguably the personifications of powerful minorities (Schmitt, 1923a: p. 16f). Given the degeneration of parliamentary deliberation into influence-peddling and spoils systems, the principle of democracy only eroded the legitimacy of liberal constitutionalism. As he put it, the problems remain “how the will of a people is formed” and the legitimacy of such a democratic constitution, which cannot be merely the will of a powerful minority ( Schmitt, 1923a: pp. 8-13, 24-29; see also Keane, 1988 ).7 Schmitt astutely noted, as early as 1919, that this erosion of constitutionalism, which rendered serious questions of political equality empty or indifferent, was beginning to divert matters of substantive inequality into the economic sphere―all of which encouraged what he called the American goal of substituting an allegedly unbiased economic management for the biased rule of politics (Schmitt, 1922: p. 65).
It is worthwhile noting Chantal Mouffe’s insightful response to Schmitt’s differentiation of liberalism and democracy, for she provides a useful example of how Schmitt’s desire for order is often received today. Mouffe treats the difference between democratic and liberal logic in terms of an opposition of inclusion and exclusion. Democratic logic assumes an inclusive definition of “the people”―an expandable definition that is necessarily based on exclusion. The people are, for the time being, only those included among the citizenry. Liberal logic, by constrast, sets no external limit, so that exclusion seems contingent―not a real or enduring problem; “inclusion” is the fundamental procedure, as humanity is the ultimate basis of liberal order. To Mouffe, this paradox is perpetually negotiated and renegotiated in liberal democracy. Mouffe, in other words, offers the position that a perpetual critique of exclusion is at the heart of democracy; the play between incommensurate foundations leads to ever-changing dynamics of inclusion and exclusion―what she calls “different hegemonic articulations.” Schmitt sees this paradox as self-destructive, because he wants a stable foundation for political order: political order is grounded in resolution, unity, or an orderly “normal situation”. Because he imagines a loyalty in relation to unity, he wants some commitment to a self-conscious “we” who are the state. By contrast, Mouffe sees no need for a stable basis, and sees that it can be realized in conflict, dynamism, or contestation: political order is based on something mutable (Mouffe, 1999: pp. 42-44).
Hence, Schmitt concluded, constitutional democracies were undermined by a profound disunity of personal and group interests masquerading as those of “the people.” The consequences for the constitutional state as a rule of law were devastating. The major problem that occupied Schmitt was what he called a “crisis of state legality” in the course of the nineteenth and twentieth centuries―a fracture between legality and legitimacy brought on by the confluence of several factors. Law, formerly the sovereign’s command, was transformed into state legislation under the authority of the parliament; at the same time, the turn to positive law in the nineteenth century began a simplification and acceleration of law-making that resulted in a mass of new laws. When coupled in turn with the erosion of parliamentary representation of the people, Schmitt argued, the legality of the constitutional state was disengaged from any sense of legitimacy. This crisis of state legality is manifested in a number of ways. The technical approach to positive law, informed by committees of experts, has encouraged a distinction between the law’s objective meaning and the subjective intent of the legislator; but with the fragmentation of parliament into parties and factions, the intent of the collective legislator is a problematic site of obstructions and compromises. Accordingly, we presume the legality of law: it is perhaps the one impersonal and objective force bridging political strife, virtually the “objective reason of political unity.” Or, as Schmitt noted, “the law is always wiser than the legislator” (Schmitt, 1943/44: pp. 47-49). But in asserting the legality of the status quo, we bracket legitimacy. If the historical legitimacy based on the continuity of the state has been replaced by the revolutionary legitimacy of “the people,” constitutional states today, in efforts to maintain a linkage between legality and legitimacy, have turned either to procedures, as with the concept of “due process” in the USA or “institutional guarantee” in Europe, or to the notion of shared values integrating the law and the citizenry (Schmitt, 1943/44: pp. 66-69). Neither of these afforded Schmitt much confidence; his most interesting inclination, to which I turn shortly, was a turn to the scholarly traditions of jurisprudence.
A related problem, especially pertinent in light of the American stress upon individual rights, has been the way in which individualism challenges the constitutional state as a rule of law. Schmitt was, to be sure, deeply suspicious of individualism and asserted on several occasions that man was a communal being; he associated individualism with Protestant inwardness and the political consequences of such an abandonment of the world (Schmitt, 1923b: p. 50f). Schmitt abhorred the pluralist theory of the state, represented by the work of G. D. H. Cole and Harold Laski, which described the state as composed of associations and those in turn composed of individuals; each individual thus lived amidst multiple and overlapping groups and was embedded in various relations, obligations, and norms. To Schmitt, such a characterization threatened the ethical demands of the state, and he strongly disapproved of the willingness to represent such a pluralist state of affairs in terms of individual choice and autonomy. Since normative precedents are typically provided for individuals by their groups, Schmitt argued that the proper issue was not individual choice but social ethics, and the sovereignty of social groups versus the demands of the state. He noted pessimistically that although ethical individualism has its correlate in the concept of humanity―the individual has value as a human being―there was no correlate for the individual as a member of society, or, I would add, as a citizen of a state ( Schmitt, 1930: pp. 196-199, 208; see also Hooker, 2009 ). Schmitt wanted the state to attract loyalty and proposed a duty towards statehood. From the standpoint of law, he reasoned, the individual disappears as an empirical entity. Because the positive law of the constitutional state is the unity of impersonal, supra-empirical rule and the state―itself a supra-individual idea―the relation posited between law and the individual paled before the all-important relation between the state and its law. As he concluded in an early essay, “everything lawful destroys everything individual” ( Schmitt, 1917: p. 50; see also Caldwell, 1997: p. 112f; Meier, 2011: p. 140f ).
In part, then, Schmitt’s critique of parliamentarism is less a question of alternatives than a matter of recognizing the nature and limits of democracy. Even if the American and French revolutions spoke in the name of the people, there never has been such a “pure” parliamentarism per se. Hence an alternative way to view the crisis of sovereign authority in the constitutional state is in terms of its built-in project of reform. Given the structural problems of constitutional democracy, the solution that most such states pursue has been a perpetual program of reform―that rational, if interminable, progress toward a better realization of the governmental form ( Schmitt, 1923a: p. 3, 76; see also Howland, 2005: pp. 138-140 ). A second alternative, popular upris