‘The Law Was Made for Man’ … Carl Schmitt’s Jurisprudence

Carl Schmitt was known for refusing to situate law within a pre-determined set of norms. Instead, he believed the community needed to react to new situations. A modification of a biblical maxim elucidates his thinking in this blog post. 

“The Sabbath was made for man, not man for the Sabbath” This aphorism from the book of Mark conveys the idea that men are first created and then subject to strictures that complete what is deficient in them. In particular, the saying attributed to the Messiah was aimed as a polemic against those who would make laws without taking into account the ability of men to perform their legal duties.

The saying further adumbrates the battle-lines between the idealist and the realist. The idealist will formulate a legal structure. The realist will ask about man’s capacity for the legal structure. At an even deeper level, the differences between man’s potentiality and man’s being are crystallized in the apothegm.

Early in his career, Carl Schmitt tended towards making law for man, but during WWI and for the remainder of his career he exhibited realist tendencies. Schmitt was arguably the foremost realist of his generation. His position can be encapsulated as ‘the law was made for man, not man for the law.’ But since Schmitt opposed individualism, this statement can be further refined as ‘the law was made for communities, not communities for the law.’

Where Schmitt especially showed himself to be a realist was in his espousal of dictatorship. Schmitt promoted dictatorship as a necessary appendix to democracy. When democracy was unable to confront an existential threat, it resorted to dictatorial means. While he could not directly call for the institution of a dictatorship Schmitt attempted to clothe the German President in quasi-imperial clothing.

Schmitt’s logic ran along the following lines: Law is merely custom. All law is custom because all law is precedent. If there is, for example, an emergency this is an unprecedented situation. Therefore the laws, the sets of customary precedents, may be unable to satisfy the requirements of the political community.

At all times, Schmitt had in mind the fact that not only was law made for communities, but it was made by communities. This set him at odds with Liberals who either searched for that perfect law which would transcend particularities of place and time or who would take shelter in individualism.

Schmitt’s realism can be further evidenced by his admiration for Donoso Cortes, the 19th century conservative. In a famous speech on dictatorship delivered in 1849, Cortes criticized a fellow deputy in the following terms before advocating his own jurisprudence:

What principle inspires Senor Cortina ? This principle, if I have analysed his speech correctly. In home affairs, the form of the law; everything by the law, everything for the law, always the form of the law; the form of the law in every circumstance, the form of the law on every occasion. But I, who believe that laws are made for societies and not societies for the laws, I say: Society, everything through society for society; society always, society in every circumstance and on every occasion. [1]

Schmitt couldn’t have said it better.

Currently, I am researching a book on Carl Schmitt. My motto is: ‘the book is made for the reader, not the reader for the book.’ I have already authored one book Mysteries of State in the Renaissance. My Amazon page is here.

[1] Bela Menzcer: Catholic Political Thought

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