Carl Schmitt was a jurist of the concrete situation. He always looked at what the circumstances at any particular moment were. Two news stories that went viral over the weekend reminded me of Carl Schmitt. Without pre-judging what Schmitt may have thought about the cases, we can at least have some idea of how Schmitt would have approached these cases.
1. Chrissie Hynde and AJE
Over the weekend, there were two ‘viral’ news stories that were as unrelated as might be to one another in terms of how they would be categorized in a publication or an online news service. In one story, three Al Jazeera English journalists received jail sentences in Egypt. In another, Chrissie Hynde made headlines by drawing distinctions between women who suffered the ignominy of sexual assault.
So, why have one blog about these news stories and not two different blogs? Well, both cases highlight a stance that Carl Schmitt, the controversial German jurist, clung to tenaciously throughout his career. They highlight the necessity of the ‘concrete situation’ when judging on legal matters. It is this idea that will be discussed.
2. Schmitt and the Concrete Situation
Schmitt never subscribed to the idea that law was an immovable object that could wrap itself around all situations. Lets take both of our test cases. In Egypt there is a state of emergency but during this state of emergency the same rights are supposed to be in force as would be in place were there to be no such circumstance. Therefore, it is held to be unfair that journalists would be prosecuted for merely practising their profession.
With regard to rape, the point that Chrissie Hynde was making was that there are (I am putting it crudely in my own words) ‘real’ rape cases where women are assaulted for no reason and ‘false’ rape cases where the demeanour of the woman in question changes how the physical assault is perceived. For a rape crisis centre or women’s advocacy group, Hynde’s perspective is flawed: a woman has the same right to bodily security regardless of her demeanour.
3. Liberal Perspective
Those who would subscribe to the idea that Al Jazeera journalists should be freed, or not even arrested in the first place, or that Chrissie Hynde is flatly wrong, would be classified as Liberal in outlook and their legal theory would most likely be positivistic. Law exists without reference as to how situations may develop or individuals may behave. A sort of independence is assumed for Law. Once the law is promulgated publicly it no longer what matters what human nature might be or what is ‘going down,’ so to speak.
4. Schmitt’s Jurisprudence
Now Schmitt has been dead for 30 years, so it is impossible to know how he would have judged these particular cases, although he did support limited forms of dictatorship. However, we know how he would have approached the two cases and he certainly would have taken into account the circumstances of the cases as opposed to merey relying on what was written down or what is considered an ideal way to behave.
Why did Schmitt take into account the ‘concrete situation.’ Well, for Schmitt, law had a very particular purpose: it existed to secure order. Therefore, it was a servant of the political authority. Not only that but law, for Schmitt, is a human enterprise. It originates in human endeavour and is directed towards humans who are addressed by the laws. Technically, law can be said to be ‘historicist.’ It exists in a particular context, not in a document or in a court-room. That is in addition to the usual requirements for law to be logical, just in its application, and conforming to some coherent set of standards.
5. Learning from Schmitt
If we are to follow Schmitt’s jurisprudence, then it has to be asked what the cases in question mean in terms of securing order or in terms of the historical or cultural context they exist in. Is journalism really an objective harvesting of ‘facts’ to be trumpeted online or on the TV? Does anyone have a ‘right’ to behave recklessly, or even in a way which renders it impossible for an objective judge to arrive at as objective a verdict as possible?
Schmitt tried to impress upon the German public the need to avoid clinging to written law when the reality refused to obey their carefully crafted documentation. He met much opposition but his views were quietly, and almost embarrassingly, accepted by the broad bulk of the West German political and legal class after WWII. The intuitive speculations of a Chrissie Hynde or the desperate attempts by a government struggling with unrest in the restive Middle East both call to mind the convictions of one of the outstanding intellects of the 20th century.
Colm Gillis has recently written a book on Carl Schmitt, which can be viewed here.