Telos Fall 2005

Telos, Fall 2005; 2005: 64 – 82 Joseph Bendersky New Evidence, Old Contradictions: Carl Schmitt and the Jewish Question The relationship of Carl Schmitt to Telos is as definite today as it would have been highly improbable decades ago. I was as surprised (and initially as skeptical) as anyone by Paul Piccone’s emerging interest in Schmitt. Yet in his typical manner, he forged ahead undaunted by severe criticism and tension among editors. Ultimately, Telos became not only one of the most persistent promoters of Schmitt studies in the US but a key interpreter of this thinker worldwide. When issue 71 appeared in 1987, linking Schmitt with the Frankfurt School, it struck some as ideologically blasphemous and even morally sacrilegious [sic]. Yet today, Schmitt’s intellectual influence on the left is a given. In his introduction to the Special Issue “Carl Schmitt: Enemy or Foe?” that followed, Piccone posed the question suddenly on the minds of many associated or familiar with the journal: ‘So what is a nice leftist journal like Telos doing in a theoretical dive like this?”[1] His answer opened the way for many fruitful, though usually heated, discussions down to the present. No matter what one thinks of his conservative credentials, Nazi collaboration, or personal prejudices, “Schmitt’s work — ranging all the way from political romanticism to guerrilla warfare — is clearly one of the most important contributions to 20th century political theory and deserves to be seriously confronted.”[2] Telos became a major impetus to the Schmitt renaissance of the late 1980’s. By the 1990’s, Schmitt studies were characterized not only by this renewed international interest in his ideas, and the proliferation of publications, but by questions and reinterpretations generated by the significant new evidence that became available at that time. The most important evidence came from the Schmitt Nachlass, the quite large collection of his private papers in the Hauptstaatsarchiv in Duesseldorf. Although still closed, these papers have, in exceptional circumstances, been made accessible to certain scholars and some of Schmitt’s private notebooks were also published. Besides greatly expanding our general knowledge, this new evidence revived old debates about Schmitt, especially concerning the issue of anti-Semitism. In recent years, Piccone had expressed to me his growing unease that, among all the new interpretations of Schmitt, those reviving the anti-Semitic question were the most successful in impeding efforts to critically understand Schmitt’s intellectual contributions. Indeed, the question of Schmitt’s anti-Semitism has now become pivotal features [sic] in the debate over his political and legal theory. It has taken on such importance that it is virtuallyimpossible to deal with his ideas without confronting this question and th new evidence from which it has arisen. Abo ve all, charges of anti-Semitism are a convenient means of generally discrediting Schmitt and his ideas. For all practical purposes, this approach seeks to shut off the discussion beforfe it starts by basically dismissing Schmitt out of hand. It is reminiscent of the approach utilized by certain scholars in earlier decades that depicted him as essentially the progenitor of Nazism, and then used this association to justify dismissing him as an evil, dangerous, or even unimportant thinker. That position, of course, became untenable once the evidence uncovered in the 1970’s undermined the paradigm of the Third Reich as the realization of Schmitt’s theories. The renaissance in Schmitt studies likewise made it impossible to simply ignore or condemn him. Requiring more serious attention, however, are those interpretations that now directly link Schmitt’s political and legal theory to the Jewish Question. The advocates of such interpretations certainly acknowledge his significance and some even accept particular Schmittian ideas, such as his critique of liberalism. But these, too, occasionally use the charge of anti-Semitism to discredit Schmitt. As one critic wrote, “It would certainly

contribute to the health of Schmitt scholarship if those who seek to extract something valuable from his work would deal frankly and fully with his anti-semitism.”[3] The points of discussion regarding Schmitt and the Jewish Question center around two types of interrelated issues: The first category of issues concerns Schmitt’s character and attitude toward Jews. Was he an anti-Semite? And if so, was he already an anti-Semite during Weimar? Did he only become an opportunistic anti-Semite after 1933? Or did he actually become a true antiSemite during the Nazi regime? The second category of issues involves whether there exists an anti-Semitic dimension to his political and legal theory. Was his thinking intrinsically antiSemitic or perhaps lend itself to anti-Semtiic interpretations or applications? One might also include the question of Schmitt’s relationship to Nazism generally and Nazi racism and antiSemitism in particular. The last question is the easiest to deal with. For the new evidence confirms that Schmitt’s political and legal theory was quite distinct from that of Nazi racial ideology and the political biology supporting Nazi anti-Semitic policies. Whatever anti-Semitism Schmitt might have exhibited was definitely not racial in the Nazi sense of the term. Even some of his harshest critics, such as Dyzenhaus, Gross and Lilla, concede that Schmitt’s anti-Semitism was not racial.[4] To Dyzenhaus, and to a certain extent for Gross as well, however, the distinction between Nazi biological racism and Schmitt’s non-racial anti-Semitism is irrelevant. Here Dyzenhaus completely misunderstands this difference between Nazi biological racism and traditional forms of anti-Semitism held by conservatives. And he underestimates the importance inherent in this distinction for the ultimate fate of the Jews of Europe. But an examination of Dyzenhaus’ argument on that point goes beyond the scope of this article. Suffice it to say that decades of Holocaust scholarship refute this position. In any event, Dyzenhaus focuses not on race but rather on Schmitt’s “Friend-Enemy Theory.” To Dyzenhaus, Schmitt’s political theory leads to the “blind hatred of the other” and had to culminate in the radical exclusion of Jews from German society. Already in the 1920’s, Schmitt had, Dyzenhaus argues, “provided a theory capable of justifying a policy to get rid of Germany’s Jews.”[5] That is certainly a damning interpretation of Schmitt’s political theory. It is also wrong. Dyzenhaus’ argument is not based upon the new evidence but upon a peculiar reading of Schmitt. Moreover, it ignores completely the fact that no one has ever shown that Schmitt intended his theory to be read in this way, nor that it was every actually applied ideologically, politically, or in policy decisions regarding Jews during the Third Reich. Even the documentation I provided 20 years ago clearly established that the Nazis explicitly rejected Schmitt’s friend-enemy theory, precisely because it was a neutral concept and was non-racial in nature. Briefly, the Nazis never accepted any of Schmitt’s theories.[6] Nor did the Nazis need them. Relying heavily upon the work of Heinrich Meier, Lilla, on the other Schmitt historiography of the 1990’s known as the “Theological Twist.” The members of this school of thought depict Schmitt as essentially a conservative political theologian, whose deep Catholic faith in revelation and Christian eschatological history are the keys to his thinking and politics. From this perspective, Schmitt’s anti-Semitism does not emanaate from random personal sentiments, opportunistic compromises with the Nazis, or the brutal character of his friend-enemy thesis as Dyzenhaus contends. Instead, Schmitt’s anti-Semitism is a kind of “demonology” in which the Jew is the cosmic “providential enemy.” The Jew symbolizes everything in the modern world that threatens Schmitt’s theological vision of history and perpetual human struggle between good and evil.[7]

The first scholar to make the most extensive use of the Schmitt Nachlass in dealing with the Jewish Question was also an exponent of the “Theological Twist.” In 1995, Andreas Koenen published the meticulously researched and documented book entitled Der Fall Carl Schmitts, which devotes a thousand pages just to Schmitt’s brief Nazi career. Koenen takes the story from the end of Weimar and Schmitt’s original collaboration in 1933, through his ultimate rejection by the Nazis in 1936. He argues that Schmitt’s anti-Semitism was cultural and religious, not racial, but that this anti-Semitism always existed in Schmitt in a hidden and reserved manner; it only surfaced after 1933.[8] However, this interpretation contains the same basic flaw as the “Theological Twist” generally. That is, it rests upon the highly dubious assumption of a “secret” Schmitt, who engaged in a “hidden dialogue” with thinkers like Leo Strauss. Unable to establish their case from what Schmitt actually wrote, and from what his personal relations and poltiical activity were before 1933, these scholars have been forced to take such an approach. To them, Schmitt intentionally concealed the real theological suppositions behind his ideas and politics in order not to expose himself to enemies or be forced to discuss matters of faith with nonbelievers. He hid his cosmic anti-Semitism accordingly. But a careful reading of Koenen’s sources reveals that he did not draw his evideence from what Schmitt said, wrote, or did before 1933, generally or regarding the Jewish Question. The documentation for such ideas is actually not from Schmitt at all, but rather mostly from Catholic conservative thinkers trying to recruit Schmitt to their cause or get his approval for their ideas and programs.[9] Nowhere do we find in this abundant documentation that Schmitt agrees with this, or secretly harbors ideas contrary to his public stance and published works. From the countless letters and other document in the Nachlass to which Koenen had access, he does not provide anything concrete to suppor the notion of pre-1933 anti-Semitism in Schmitt’s theories. Nevertheless, Koenen did uncover something else of importance in the Nachlass, which has not received sufficient attention outside his book. He found documents showing Schmitt assisting particular Jewish friends and co9lleagues during the early stages of the Nazi regime. We now know that even before Hitler’s seizure [sic - Hitler was elected], Schmitt “frankly and clearly warned” his Jewish students of the Nazi danger and urged them to take this threat seriously.[10] Thereafter, in the first months of the Third Reich, Schmitt worried about the fate of his Jewish friends and colleagues, especially the Eisler family in Hamburg. Schmitt had dedicated his major study of constitutional law to his very dear friend Fritz Eisler who had died in WWI; and Schmitt remained close to the Eisler family. In anticipation of th eannounced anti-Jewish Boycott by the Nazis in spring 1933, Schmitt’s wife traveled to the Eisler home in Hamburg while Schmitt tried to console them by telephone. This attempt to assist Jews continued into the first phases of Schmitt’s own collaboration with the Third Reich. When the April 1933 Nazi Law for the Restoration of a Professional Civil Service was being used to purge Jews from the civil service and universities, Schmitt supported exemptions for two of his Jewish colleagues, Erwin Jacobi and Albert Hensel. Like his concern for the Eislers, his efforts on behalf of Jacobi and Hensel were not merely the case of personally liking individual Jews while condemning Jews as a group. There was another factor at work besides personal relationship, because Schmitt apparently unanswered. And here I think that Koenen has correctly identified the “primacy of the political” as the determinant for Schmitt.[11] Those who had proven themselves in the struggle for the national cause (and perhaps also in the fight against the Marxism) Schmitt would vouch for as loyal and “dependable” servants of Germany, who should be granted exemptions and allowed to retain their positions. Just as Eisler had given his life for Germany, so too had Jacobi and Hensel belonged on the right political side. Both Hensel and Jacobi shared Schmitt’s position in political and legal theory. From early Weimar, Jacobi had supported Schmitt’s constitutional interpretation of extensive presidential powers, especially the emergency powers under Article 48. Jacobi had also been active in assisting Schmitt and the presidential government of Hindenburg during the 1932 Supreme Court

trial over the imposition of martial law in the state of Prussia.[12] In contrast, Schmitt would remain silent in the cases of Hans Kelsen and Arnold Brecht. Kelsen was the chief advocate of the liberal ideology and normative-positivist legal theory of which Schmitt was so critical. And Brecht had not only strongly opposed Schmitt’s legal theory, but stood against Schmitt and the Presidential system he supported during the aforementioned trial.[13] What Koenen’s work indicates overall is that the documents examined so far in the Schmitt Nachlass tend, in essence, to confirm the interpretation of Schmitt as a traditional conservative thinker who, for various reasons, collaborated with the Third Reich. Unfortunately, there are also limitations to this new research. For Koenen’s study stops with the Nazi purge of Schmitt in 1936-37. The years thereafter are an important period for understanding Schmitt’s anti-Semitism, because it was his 1938 book on Thomas Hobbes that contained some of his most reprehensible expressions about Jews and their historical role in undermining the German state.[14] Beyond Schmitt’s already known published works, the only references we have regarding his attitude towards Jews for the crucial decade between 1936 and 1947, are in Nicolaus Sombart’s autobiographical piece Jugend in Berlin and Schmitt’s recently published correspondence with Ernst Juenger. Nicolaus Sombart was the son of Werner Sombart, the famous German sociologist and close friend of Schmitt. The younger Sombart recalls various anti-Semitic expressions from Schmitt. But Sombart’s credibility is questionable due to the bizarre psychosexual interpretation of Schmitt and Germany that he subsequently published.[15] But even if we were to accept his recollections as accurate, they basically involve remarks similar to the ones already found in Schmitt’s work on Hobbes. They tell us nothing about Schmitt’s pre-1933 position on Jews, nor do they add anything to our understanding of any possible relationship between Schmitt’s theory and Jews. At best, such private expressions would suggest that during this period there was more to Schmitt’s anti-Semitism than mere opportunistic lip service to the Nazis. One gets a similar sense from Schmitt’s letters to Juenger, particularly where Schmitt identifies with Bruno Bauer’s perspective on the Jewish Question that, as noted below, Gross would find so essential to his own interpretation.[16] Although neither the Sombart nor Juenger documents indictate an anti-Semitic substance to Schmitt’s 1933 theories, examination of them is a necessary and fruitful avenue for further research. When combined with Schmitt’s private post-World War II notes, sombart’s recollections, like the exchanges with Juenger, are suggestive of a more general type of antiSemitism in Schmitt during this phase of his life. These private notes were published in 1991 under the title Glossarium.[17] The statements about Jews in Glossarium surprised even Schmitt’s strongest defenders. Meanwhile, his critics have repeatedly used this powerful new ammunition to discredit him.[18] Yet, despite such widespread reliance on Schmitt’s Glossarium, no one has systematically examined these notes in situational or historical context. Instead, they have been used selectively to support one thesis or another. These private notes were written between 1947 and 1951, the most depressing period in Schmitt’s life. He had just spent almost two years in an American internment camp, followed by months in a cell in Nuremberg as a potential war criminal. His country had been destroyed and its future remained completely uncertain. His university career was lost, as were his possessions, including his cherished library. Most of the references to the Jewish question scattered throughout his notes over these four or five years, in fact, relate to these circumstances and especially to the returning Jewish Emigres. The statements in Glossarium that appear most shocking are reflections of his hostility toward these returning Emigres, whom he sees as the new persecutors of Germany and himself. To him, they represent the revenge of the victors: the bombing of German cities, the Morgenthau Plan for the continued destruction of Germany, the Nuremberg Trials that extend beyond Nazi war criminals, an enormous reparations and compensation. Although this was supposed to be an American victory and the “American Century,” he complained, he had never in five years of

dealing with the Occupation Government spoken to an American. And this might very well be true, since all of his interrogators had, in fact, been Jewish Emigres.[19] The same could generally be said as well as about those who continued to call for sanctions against him or possible prosecution. One gets the distinct impression taht Schmitt sees himself as the victim. He depicts himself as caught in the middle of the struggle between Nazis and Jews. In his mind, he has not declared Jews as his enemy, but rather they have now identified him as their enemy becaues he had not declared the Nazis as the enemy. Likewise, the Nazis had earlier condemned him for not being anti-Semitic and accepting their depiction of the Jews as the enemy of Germany.[20] Given the unprecedented human destruction caused by Germany and the compromises Schmitt himself had earlier made with the regime responsible for this, it is hard to sympathize with him at all. One might very well argue that his depiction of the role of Jewish Emigres itself reveals a certain kind of anti-Semitism. However, context still cannot be ignored when trying to explain Schmitt’s statements. It must also be noted that none of the characteristics of traditional antiSemitic ideology are found in Glossarium. We find nothing on Jews as economic parasites dominating the economy through capitalism, no contention of the Jews behind Socialism and Communism, or even as the corrupters of culture through the introduction of a decadent modernism. Moreover, intermixed with such criticisms of Jews are fond recollections of his friend Fritz Eisler and respect for various Jewish scholars and intellectuals. He criticizes Marx and Freud but finds much value in Franz Kafka and Ernst Cassirer.[21] The extensive volume of correspondence between Schmitt and his close conservative confidant Armin Mohler in the years 1949 to 1980 tends to reinforce this interpretation of Glossarium.[22] Although published in 1995, this volume has received very little attention, even though it, too, has scattered throughout it almost as many references to Jews as does Glossarium. In these letters, the bitterness of his initial postwar comments on Emigres gradually disappears over time, and as Germany recovers. And once again, we find here the same combination of criticism and great admiration for Jews on an individual basis. In one place, there is a sarcastic remark about the role of Jewish intellectuals like Friedrich Julius Stahl in the development of political conservatism in Protestant countries. In another, Schmitt declares his great respect for the Jewish Theologian Jacob Taubes, whom he calls intellectually a “gift from God.” In relationship to Hobbes’ [sic] Leviathan, Schmitt also writes of the “three important authors” for him: “Leo Strauss, Walter Benjamin, and Hermann Cohen.”[23] The Mohler-Schmitt correspondence also documents a more generally konwn fact relevant to our discussion. It shows that beginning in the 1950’s Schmitt renewed his personal and intellectual relationship wtih Jewish intellectuals or those of Jewish heritage. In many respects, this was reminiscent of his life and thought during the Weimar years. Here one could cite his long and fruitful personal and intellectual postwar relationship with Jacob Taubes, Julien Freund, George Schwab, and Alexander Kojeve.[24] Some of this could be explained by Schmitt’s enduring desire for stimulating intellectual discourse. In these cases, there also seems to be the same sense of the “primacy of the political” that determined his Weimar relationships and his willingness to help particular friends in the early phase of the Third Reich. For his new Jewish intellectual discussants and friends tended to share his conservative thinking or otherwise appreciate his critique of liberalism. Thus, in general, the new evidence provides us with a picture of an often contradictory and certainly complex relationship with Jews both personally and intellectually. It is a multifaceted relationship that extends over a period of more than 70 years. But what have we really learned aobut Schmitt’s political and legal theory from sections in these new documents related to the Jewish Question? His Glossarium, Sombart’s autobiography, the Juenger- and Mohler-Schmitt

correspondence, and, to date, Schmitt’s Nachlass indicate very little, if any, directly relationship to his theory. This has not, however, prevented certain scholars from using his more recently disclosed statements on the Jewish Question to reinterpret his Weimar theory and thereby discover an antiSemitic dimension to his earlier works. They not only use the post-WWII documents to explain Schmitt’s ideas and activities in Nazi Germany. They also employ them to discover the antiSemitic components or implications of the thinking of the “hidden” Schmitt that supposedly existed long before 1933. Gross, for example, proposes a grandiose theory about Schmitt and the Jewish question, which, owing to his access to the Schmitt Nachlass and the new documentation he presented, has elicited widespread attention and won adherents to his position. It had been the popularity of Gross’s contentions, in particular, that Piccone had seen as such a challenge to future Schmitt studies. Consequently, Gross’s sources, arguments, and assumptions require careful scrutiny. Gross argues that continuity exists in Schmitt from Weimar through the Nazi era. Schmitt always sought a specifically German type of legal theory, the core of which was primarily antiSemitic.[25] Although not favoring a Nazi victory, Schmitt, thereafter, saw it as a chance to pursue his own political goals. Thus, the Third Reich became the highpoint of his theoretical efforts. His anti-Semitic manifestations after 1933 were not the result of opportunistic attempts at self-preservation through collaboration. Nor was he acting as a conservative force trying to restrain the more radical tendencies of the regime, as Koenen contends. Schmitt was actively promoting, accelerating, and sharpening Nazi Jewish policies, using Nazism to fulfill his own longstanding political and theoretical goals regarding Jews. From his pre-1914 works onward, Schmitt sought to counteract the “Jewish enemy” threatening the western world.[26] Schmitt’s political and theoretical attacks on positivism, liberalism, Marxism, and normative legal theory were really directed at Jews and Jewish intellectual influences. The Jews represented, and accelerated, trends toward universal concepts and principles such as human rights, equality, and emancipation. These concepts and forces served Jewish goals that endangered the nature and interests of Germans. Schmitt’s anti-Semitism was not religious, theological, or racial, but emanated from this ideological image of the nature of Jews an dtheir role in history.[27] Gross even argues that Schmitt believed in secret Jewish forces and conspiracies.[28] Gross had to concede, however, that in actuality Schmitt said and wrote very little, and infrequently, about Jews.[29] Moreover, much of Gross is speculation, or reading between the lines, rather than conclusions emanating from evidence in the Nachlass. And his contentions are unconvincing. What Gross cites from the Nachlass, does not reveal a pre-1933 political or theoretical anti-Semitism. And this presents several problems. The most basic of which is that there is no hint of anti-Semitism in any of his pubished works between 1910 and 1933. Working backward from the few places in his writings during the Nazi era where Schmitt identified Jews with legal positivism and political liberalism, Gross’ [sic] “structural” analysis supposedly discloses that, when developing his Weimar constitutional, legal, and political concepts, the “deceitful” Schmitt was really aiming his criticism at Jews and Jewish influences, even though Schmitt never mentions, or even implies, anything about Jews.[30] Indeed, Gross addresses a very minimal amount of Schmitt’s prolific Weimar scholarship. Most of Schmitt’s works in political and legal theory are not really analyzed at all. When Gross does take up one of these works, he neglects most of what the work deals with. Instead, Gross focuses on those aspects of a work he claims demonstrate the “structural” similarities with Schmitt’s overall anti-Semitism and “Feindbild” of Jews that would later be manifested in his Nazi works. To claim that antiSemitism is the very core of such works without fully examining them makes an unconvincing and highly questionable case.

Indeed, it is very difficult to imagine a hidden anti-Semitic dimension to Schmitt’s Weimar works. Where in his prolific classic studies of dictatorship, political romanticism, political theology, liberalism, the crisis of parliamentary government, Weimar constitutional theory, and presidential powers do we find anti-Semitic elements? How do we account for the fact that certain Jewish intellectuals praised these works or shared his ideas?[31] From early Weimar into the Third Reich, the Jewish jurist Erwin Jacobi argued the same kind of political and legal theory.[32] Meanwhile, Franz Neumann and Otto Kirchheimer adapted Schmitt’s ideas to leftist theories and political causes.[33] The one Weimar work that appears most vulnerable to such retrospective interpretation is Schmitt’s Concept of the Political, where he introduced his disturbing friend-enemy thesis.[34] As already mentioned, certain scholars contend that his theory of dividing groups into friends and enemies based upon certain existential differences justified the identification of Jews as the enemy and helped pave the way for their removal from German society. By interjecting Schmitt’s Glossarium entries about Jews and enemies, such interpreters attempt to circumvent the crucial fact that this thesis he had originally introduced in the 1920’s had nothing explicitly, or implicitly, to say about Jews. Supposedly, these post-WWII comments reveal the actual meaning of his friend-enemy thesis as it pertains to Jews. Thus, this dangerous theory must be exposed for what it really is and utterly rejected. Nonetheless, if we read what Schmitt actually stated in Glossarium, instead of just reacting to the crude terminology, tone, and bitterness, we find that Schmitt views the situation exactly the opposite way. He had not identified Jews as the enemy of Germany whose removal his friendenemy theory had prescribed. That would vindicate thosewho condemned and rejected his theory. His theory had never been a prescription for identifying and eliminating enemies. He often referred to his theory as a “prudent” observation of what one actuallysees, again and again, in hiostry and contemporary political life.[35] What he had always argued, adn still maintained in Glossarium, is that groups internally and states internationally continued to divide themselves into antagonistic associations according to the criterion of friend and enemy. And under extreme circumstances, these distinctions lead to conflict and war. One might deny that this is the nature of political life and be appalled by the terminology or implications of such a theory. But, to Schmitt, human history, including his own tumultuous lifetime of barbaric revolutions, wars, dictatorship, and mass destruction confirmed this remained the perpetual reality nevertheless. The Nazi experience had once again proven him right and his critics wrong. He saw the reciprocal identification of Jews and Nazis as enemies of each other as a clear example that th efriend-enemy criterion had not been eradicated and never could be. His theory had not identified the Jews as the enemy. But rather it had presented a theoretical frameworok that essentially predicted that the kinds of friend-enemy distinctions that emerged between Nazis and Jews continually occur.[36] It should also be mentioned that Schmitt’s friend-enemy thesis, like his other concepts, contained ideas similar to those of certain Jewish scholars. For example, the ideas on states, friends and enemies, and war one finds in the works of Sigmund Freud closely parallel those of Schmitt. In the 1920’s and 1930’s, their views of such friend-enemy associations throughout history, as well as their pessimistic outlooks on the future, were remarkably similar.[37] When we move from Schmitt’s Weimar works into what he wrote during the Nazi era, the questions about his theory do become more complex and difficult to answer. His true motives and intentions, like the meaning of certain statements, also are harder to clarify or explain. Here we find anti-Semitic expressions totally uncharacteristic of his earlier work and relationships. Yet, even in these years, we do not find an immediate emergence of anti-Semitism or even an extensive, pervasive or constant manifestation of it. Instead, it emerges only gradually and always remains limited. Given the kinds of compromises he was already making, he would have

had much to gain by exploiting this issue. But early on he never does. Initially, his few antiSemitic references appear only as minor lip service to Nazism and gradually escalate as he is under attack for not being a true believer. His anti-Semitism reaches its peak in 1936, when he is under assault by the SS. After this watershed showdown with the Nazi state, he actually has very little to say on the Jewish Question at all.[38] This pattern is also evident in perhaps his three major works during the Nazi years: The Three Types of Juridic Thought, his work on Hobbes’ [sic] Leviathan, and his Grossraum theory. Nowhere in these works is what he has to say, or even imply, about Jews a necessary element in his theory. One could eliminate these references or insinuations without in any way affecting the theory. His 1934 work on the three kinds of juristic thought contains his most elaborate and incisive critique of normativism and positivist legal theory. Yet, it contains only a single insinuation about Jews without identifying them precisely. Jews are likewise an irrelevant component to his Grossraum theory from the late 1930’s. Schmitt’s work on Hobbes would also remain unaffected by the removal of his remarks about Jews.[39] Still, Schmitt’s Nazi works do raise some serious issues regarding anti-Semitism. How do we, for instance, explain the vehement tone and language employed by Schmitt in his Hobbes work? This is especially the case in his characterization of Friedrich Julius Stahl as the insidious underminer of the state.[40] Was a fearful Schmitt still trying to protect himself against a continued attack by the SS by exploiting the alleged role of Jews in the course of German history? Was Schmitt still outraged by the Emigres who had exposed his past close relationships with Jews and lack of anti-Semitism? These still remain quite plausible and may be the correct interpretations. But there could also be much more to Schmitt’s reactions — personally and in the evolution of his thought. If Schmitt’s Nazi-era comments on the role of Jews in the history of German law and the state were merely opportunistic insertions to please the Nazis, how do we explain what Sombart claims Schmitt said in private? How do we account for certain occasional private post-war references in Glossarium? For example, where he suggests that Jews have a greater affinity than Germans for really understanding and governing according to normativism and positivist legality.[41] Should we interpret this as continuity with what he wrote under Nazism, or is ther some other explanation? Gross was correct in emphasizing that other scholars had paid insufficient attention to Schmitt’s anti-Semitism during the Nazi period. And Gross showed that there was more documentation on this subject than previously thought. His sources demonstrate Schmitt’s growing interest in the Jewish question through the late 1930s and 1940s. Gross revealed, for instance, the important evidence of Schmitt’s attraction to Bruno Bauer’s work on the Jewish Question.[42] Yet, none of this supports Gross’s contention that Schmitt attempted to develop a German legal theory against the universalistic forces of the Jews, or that he was obsessed with Jews. Moreover, the Nazi era documents do not establish a longstanding, or intrinsic, theoretical anti-Semitism. And, in most cases, Gross fails to sufficiently consider the historical and situational context of the sources he invokes. Thus, while bringing the subject of Schmitt and Jews to the foreground, Gross has not really provided an adequate explanation of this historical question.[43] So far in Schmitt scholarship, there is not a fully developed picture of his relationship with Jews, or of his position on Jews in German history and law. Neither is there a satisfactory explanation for the origins, nature, and contradictions in what we do know about the manifestations of anti-Semitism that have surfaced. I recently examined those portions of the Schmitt Nachlass related to the Jewish Question. Although I have not yet completed my analysis of the extensive evidence gathered, I do have some preliminary impressions. Foremost among these perhaps is that Schmitt was not seriously engaged with the Jewish Question before the Nazi period. Although he was generally influenced by the cultural/religious anti-Semitism of his time and early Catholic milieu, Jews become an

important political issue only in 1933, one that, thereafter, he had to address on several levels. Anti-Semitism was a fundamental Nazi principle and soon law. As a newly recruited legal theorist for the Nazi state, he had to make his ideas compatible with Nazi anti-Semitism and racism. But he does so only gradually and in a limited fashion. Despite his harsh anti-Semitic attacks in 1936, calling for the purge of the Jewish spirit from German law, he never develops a racial or anti-Semitic legal theory. However, he does see a “friend-enemy” relationship developing between the Nazified German state and Jews. Here, there is strong ambivalence. Schmitt never displays sufficient appreciation for the fact that it is the Nazis who are turning Jews into critics of Germany. He will, however, attempt to help Jewish friends, but not those he considers personal or political opponents. By 1934 the Jewish question has serious personal ramifications for Schmitt. Jewish emigres, many of whom were his former students and friends, are exposing his past relationships with Jews and the contradictions between his theories and Nazi ideology. His Nazi opponents use this against him, leading to his ultimate purge from party offices. There is a reciprocal sense of betrayal and bitterness between Schmitt and emigres. By the late 1930s, Schmitt has developed a definite interest in the Jewish Question and, in April 1939, he did write to Juenger that “By far, the most significant thing said about Judaism came from Bruno Bauer’s ‘The Jewish Question’ (1843), and then in a few chapters of his ‘Critique of Evangelism’ (1852) . . . and in the essay ‘Judaism Abroad’ (1863) . . . Everything important had been said before 1848.”[44] Althought Schmitt never explained or elaborated on his own dramatic statement, Bauer’s position on the role of Jews in history and society is categorically clear. It was Bauer’s atheism, philosophical idealism, and panic over mass society that determined his passionate attitude toward Jews, as well as his strenuous opposition to their emancipation, because he identified Jews with religious belief, materialism, and as one of the destabilizing forces of modernism.[45] Yet, thereafter, Schmitt actually had very little to say on Bauer and the next brief reference to Bauer and Jews does not appear until the final stages of WWII (February 1945).[46] What Bauer’s critique of Jews meant to Schmitt remained vague and undeveloped; and it stood on the periphery of his thinking. The Nachlass actually suggests that Schmitt’s real interest was not in Bauer’s interpretation of Jews in German history but in the Young Hegelian’s views on early Christianity, the renewal of civilization i nthe face of a catastrophic tragedies of modern mass society, and the question of a Katechon as a savior or bulwark against these destructive barbarous forces. His postwar diary entries up to 1951 reflecte a similar interest in Jews and his bitterness towards emigres, which is reinforced by his encounter with emigre officials working for the US army, military government, and prosecution teams during his two-year internment. After the early 1950s, this kind of anti-Semitic sentiment wanes and he gradually reestablishes relationships with certain Jewish intellectuals and scholars. Finally, the Nachlass does show the development of a major interest in Jews, Judaism, and Israel through the 1970s. The most recent published documentation from Schmitt’s Nachlass (unavailable when Koenen and Gross formulated their interpretations) has made studies of him and the Jewish Question even more complex. The letters of the young Schmitt (in his mid-twenties) to his sister and his copious private diaries from 1912-1915 provide some of the most revealing (and long awaited) evidence ever to come to light about his private attitudes, life and inner-most thoughts.[47] Yet, these illuminating documents ultimately leave us with the same sense of ambivalence and contradiction reflected in the earlier evidence. On the one hand, a highly significant interpretive contention is settled. It can no longer be argued, as I among others have previously done, that there exists no evidence or indication of anti-Semitism in Schmitt’s attitudes and personal relations before 1933. His diaries do contain a few social and cultural anti-Semitic remarks. Nevertheless, at the same time, Schmitt’s close intimate relationship personally with (as well as his intellectual attractiveness to) Jews is firmly established. Equally significant, contraray to

Gross’s contention, Schmitt’s private notations show that his early writings did not contain some implied or “hidden” anti-Semitic perspective or theoretical objective. Moreover, Schmitt’s own mental state during these youthful years adds a perplexing complexity to the entire issue. These pages project cosmic Angst, personal Weltschmerz, relentless sexual/romantic passion and longing, almost daily economic and professional insecurity, and a profound alienation from contemporary society. The anti-Semitic remarks scattered throughout these early diaries, though few in number, do reflect the cultural milieu of the small town Catholic Kleinbuergertum from which he emerged.[48] Their brevity and provincialism, however, do not make them any less crude and disturbing. Nonetheless, they are distinct from those of the racial and political anti-Semites of this period who attribute so many of th eproblems of modern society to Jews. Schmitt’s prejudicces are, in fact, rather broad, eclectic and, in some instances, surprising. Far more prevalent are caustic remarks and severe fundamental criticism, unrelated to Jews, of the German people, the pursuit of money, and especially the civil servants in the legal system with which he was affiliated. In the midst of the anti-Slavic war fever of 1914, he expressed sympathy for the Russians and his preference for the barbarism of the naive Slavs to the cultural barbarism of the Prussians and Mittelstand, noting “Besser, dieser Krieg wird verloren als gewonnen.“[49] At the same time, these diary entries establish beyond any doubt his deep affection for his dear Jewish friend and intellectual collaborator Fritz Eisler. This was not, as some have charged, the case of an anti-Semite having his “favorite Jew.”[50] The Catholic Schmitt was generally drawn toward intellectual interaction wtih Jews (what he called his “juedische Komplex”).[51] After Fritz died on the battlefield, Schmitt developed a similar intimate relationship with his brother Georg Eisler and the Eisler family. As Schmitt phrased it, “Ich fang an, die Juden zu respektieren.”[52] In 1934, Schmitt assisted the Eisler family in emigrating from Nazi Germany. Quite significant, these diaries also do not supprot claims that even Schmitt’s pre-WWI writings were, at their core, a surreptitious attempt to develop a political and legal theory aimed at counteracting Jewish influences. We now have definitive confirmation that Eisler did co-author with Schmitt Schattenrisse, a devastating parody of the German intellectuals and gebildeten bourgeoisie.[54] In an effort to portray this work as evidence of Schmitt’s allegedly hidden antiSemitic thinking, some have denied Eisler’s collaboration and tried to ignore or cast into insignificance Schmitt’s dedication of one of his most important books (Verfassungslehre) to his fallen friend.[55] And his notations to legal thought indicate that his ideas, including those manifested in his two major publications from this period, are what they always appeared to be on the surface — a neo-Kantian engagemetn with normativism and positivism without any resonance of a Jewish Feindbild.[56] All of this new documentation requires careful and thorough analysis. Various adjustments to existing perspectives on Schmitt will no doubt be the end result of this scholarly undertaking. Yet, even at this preliminary stage, it seems that Schmitt’s Nachlass, including the published diaries, offers no indication that his pre-1933 works were anti-Semitic. Neither does it suggest that after 1933, he tried to develop a specific German legal theory aimed at the defending the West against a Jewish enemy. His political and legal theories, together with his other intellectual contributions, still deserve to be considered on their merits.[57] The hallmark of Paul Piccone’s Telos was to confront, usually thrust to the forefront, difficult and controversial subjects. The journal should not shy away from this one no matter where the documentation and debate lead.

Notes: 1. Paul Piccone and G. L. Ulmen, “Introduction to Carl Schmitt,” Telos 72 (Summer 1987), p. 3. 2. Ibid. 3. David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar (Oxford: Clarendon Press, 1997), p. 101. See also David Dyzenhaus, ed., Law as Politics: Carl Schmitt’s Critique of Liberalism (Durham: Duke University Press, 1998); William E. Scheuerman, Carl Schmitt: The End of Law (Lanham, MD [sic]: Rowman & Littlefield, 1999); Raphael Gross, Carl Schmitt und die Juden (Frankfurt am Main: Suhrkamp Verlag, 2000); Mark Lilla, The Reckless Mind: Intellectuals in Politics (New York: New York Review Books, 2001). 4. Dyzenhaus, Legality and Legitimacy, op. cit., pp. 98-101; Gross, Carl Schmitt und die Juden, op. cit., pp. 56-59, Lilla, Reckless Mind, op. cit., pp. 71-75. 5. Dyzenhaus, Legality and Legitimacy, op. cit., p. 100. 6. See Akademie fuer Deutsches Recht, Reichskanzlei (1933-1945), R-43-11, 1509, Bundesarchiv, Koblenz; Sicherheitsdienst des RFSS SD Hauptamt (1936), PA 651C, Schmitt, Karl, Prof. AKZ 4062/68, Fa 5403, Nos. 1-2, Wiener Library, Tel Aviv. Gross unconvincingly attempts to dismiss the importance of this substantive and crucial evidence by arguing that these documents do not demonstrate a Nazi rejection of Schmitt and his ideas as contrary to their ideology, but rather merely reflect a fight among various political and academic factions wtihin the polycratic Nazi state. See “Politisches Polykratie 1936: Die legendenumwobene SD-Akte Carl Schmitt,” Tel Aviver Jahrbuch fuer deutsche Geschichte, XXXIII (1994), pp. 115-143. 7. Lilla, Reckless Mind, op. cit., pp. 68-76; Heinrich Meier, Carl Schmitt and Leo Strauss: The Hidden Dialogue, tr. by J. Harvey Lomax (Chicago: University of Chicago Press, 1995). 8. Andreas Koenen, Der Fall Carl Schmitt: Sein Aufstieg zum “Kronjuristen des Dritten Reiches” (Darmstadt: Wissenschaftliche Buchgesellschaft, 1995), pp. 313-328, 728. 9. Ibid., pp. 316-317, 322-327, 367-380. 10. Ibid., p. 328. 11. Ibid., pp. 332, 381-384. 12. Carl Schmitt and Erwin Jacobi, “Die Diktatur des Reichspräsidenten nach Art. 48 der Reichsverfassung,” Veroeffentlichungen der Vereinigung der deutschen Staatsrechtslehrer, Heft 1 (Berlin, 1924). Joseph W. Bendersky, Carl Schmitt: Theorist for the Reich (Princeton: Princeton University Press, 1983), pp. 75-77, 156, 160, 176. 13. Bendersky, Carl Schmitt, op. cit., pp. 36-39, 133, 160-164, 207, 189-191, 202.

14. Carl Schmitt, The Leviathan in the State Theory of Thomas Hobbes: Meaning and Failure of a Political Symbol, tr. by George Schwab and Erna Hilfstein (Westport, Conn.: Greenwood Press, 1996), pp. 8-15, 56-64, 69-77. 15. Nicolaus Sombart, Jugend in Berlin, 1933-1943: Ein Bericht (Munich: C. Hanser, 1984); and Die deutschen Männer und ihre Feinde. Carl Schmitt — ein deutsches Schicksal zwischen Männerbund und Matiarchatsmythos (Munich: C. Hanser, 1991). 16. Helmuth Kiesel, ed., Ernst Juenger-Carl Schmitt Briefe, 1930-1983 (Stuttgart: Klett-Cotta, 1999), pp. 83-84. 17. Carl Schmitt, Glossarium Aufzeichnungen der Jahre 1947-1951, ed. by Eberhard Freiherr von Medem (Berlin: Duncker & Humblot, 1991). 18. Dyzenhaus, Legality and Legitimacy, op. cit., p. 93; Scheuerman, Carl Schmitt, op. cit., pp. 177-179; Gross, Carl Schmitt und die Juden, op. cit., pp. 366-381; Lilla, Reckless Mind, op. cit., pp. 53-54. 19. Schmitt, Glossarium, pp. 115, 232, 255, 264, 290, 306-307. 20. Ibid., pp. 81, 176-177, 239. 21. Ibid., pp. 18, 33, 36, 55, 61-62, 122, 160-161, 241, 310, 313. 22. Armin Mohler, ed., Carl Schmitt-Briefwechsel mit einem seiner Schüler (Berlin: Akademie Verlag, 1995). 23. Ibid., pp. 95, 256-257, 341, 354-356, 407, 421-422. 24. Ibid., pp. 119-122, 171, 234-235, 248-249, 251-253. 25. Gross, Carl Schmitt und die Juden, op. cit., pp. 28, 382. 26. Ibid., pp. 26-366. 27. Ibid., pp. 26-28. 28. Ibid., pp. 25, 176-178, 265. 29. Ibid., p. 114. 30. Ibid., pp. 137-154, 179, 266, 310-325. 31. Gross’ [sic] argument that Schmitt’s theory was developed as a bulwark (Katechon) against these insidious Jewish forces raises serious questions about the most recent trend in Schmitt historiography in the English-speaking world. In turn, their assertions create problems for Gross. In major publications, several scholars have charged that Schmitt is the “bridge between… interwar German fascism and post-World War II North American conservatism.” As the “intellectual godfather” of American conservatism, Schmitt’s ideas supposedly exercised a “profound” influence over those emigres who played major intellectuals roles in the development of American intellectual life, especially regarding conservative social and political theory, from WWII to the present. The “ghost” of Schmitt can be detected in the democratic elite

theory of Joseph Schumpeter, the free-market critique of the welfare state of Friedrich Hayek, the cultural conservatism of Leo Strauss, and the realist theory of international relations of Hans Morgenthau. Since several of the major intellectuals who relied upon Schmitt’s theories (which, for Gross, supposedly have this anti-Semitic core), are of Jewish heritage, the problem is selfevident. See Scheuerman, Carl Schmitt, op. cit., pp. 181-255; and John P. McCormick, Carl Schmitt’s Critique of Liberalism: Against Politics as Technology (New York: Cambridge University Press, 1997), pp. 302-305. 32. See Schmitt and Jacobi, “Die Diktatur des Reichspraesidenten nach Art. 48 der Reichsverfassung.” See also Carl Schmitt, Verfassungsrechtliche Aufsätze aus den Jahren 1924-1954: Materialien zu einer Verfassungslehre (Berlin, 1958), pp. 242, 313-315, 458. 33. See for example Otto Kirchheimer, “The Socialist and Bolshevik Theory of the State,” and “Weimar-And What Then?” in Frederic S. Burin and Kurt L. Shell, eds., Politics, Law, and Social Change: Selected Essays of Otto Kirchheimer (New York: Columbia University Press, 1969), pp. 3-21, 33-74. See also Ellen Kennedy, “Carl Schmitt and the Frankfurt School”; Martin Jay, “Reconciling the Irreconcilable? A Rejoinder to Kennedy”; Alfons Söllner, “Beyond Carl Schmitt: Political Theory in the Frankfurt School”; and Ulrich K. Preuss, “The Critique of German Liberalism: A Reply to Kennedy,” Telos 71 (Spring 1987), pp. 37-109. 34. Carl Schmitt, The Concept of the Political, tr. by George Schwab (New Brunswick, N.J.: Rutgers University Press, 1976). 35. Schmitt to Hermann Heller, December 18, 1928, as cited in Bendersky, Carl Schmitt, op. cit., p. 93. 36. Schmitt, Glossarium, op. cit., pp. 4-5, 17-18, 81, 240, 239. 37. Joseph W. Bendersky, “Schmitt and Freud: Anthropology, Enemies, and the State,” in Dietrich Murswick, Ulrich Storost, and Heinrich A. Wolff, eds., Staat-Soveraenit-Verfassung: Festschrift fuer Helmut Quartisch zum 70. Geburtstag (Berlin: Duncker & Humblot, 2000), pp. 623-635. 38. See Bendersky, Carl Schmitt, op. cit., “The Purge of an Ideological Deviant.” 39. Schmitt, Leviathan, op. cit.; On the Three Types of Juristic Thought, tr. by Joseph W. Bendersky (Westport, Conn.: Praeger, 2004); and Voelkerrechtliche Grossaumordnung mit Interventionsverbot fuer raumfremde Maechte: Ein Beitrag zum Reichsbegriff in Vülkerrecht (Berlin, 1939). 40. Schmitt, Leviathan, op. cit., pp. 69-70, 75. 41. Schmitt, Glossarium, op. cit., p. 154. 42. Gross, Carl Schmitt und die Juden, op. cit., pp. 196-224. 43. Also quite significant is Gross’ [sic] notion about the broader moral and historical implications of Schmitt’s case, and the extent to which Schmitt is a represenative symbol of a tradition among German conservative elites who did not come to terms with their relationship to the Nazi past. Carl Schmitt und die Juden, op. cit., pp. 16-17, 384-385. Dirk van Laak, Gespraech in der Sicherheit des Schweigens: Carl Schmitt in der politischen Geistesgeschichte der fruehen Bundesrepublik (Berlin, 1993), though a very fine overview of Schmitt and this

immediate postwar period, does not sufficiently cover these specific issues. Over 20 years ago, I noted Schmitt’s failure to comes [sic] to honest terms with his Nazi past: (1) During his Nuremberg interrogations: “In light of the massive destruction and unparallel [sic] human suffering caused by a regime he had supported, Schmitt’s concluding statement was shocking. In additiona, the way he depictd his intellectual activity during the Third Reich was misleading. One could easily get the impression from these disquisions that his works were abstract analyses of political and legal subjects intended primarily for intellectual discuissions among scholars. He conveniently forgot that before his rebuke in 1936 he had hoped that his works would influence poltiical and legal developments, and that despite the distortion of his ideas he thrived on the public attention he received as a rsult of his publications and activities within Nazi instiutions.” (2) Regarding his edited postwar publication of earlier works: “Schmitt’s critics were not the only ones involved in manipulation of th epast. Concerned with his reputation and the judgment of history, Schmitt made a conscious effort to ignore his writings from the National Socialist era…conspicuous by their absence were the works he had written in the service of the Nazi state.” Bendersky, Carl Schmitt, op. cit., pp. 272, 278. 44. Kiesel, Juenger-Schmitt Briefe, op. cit., pp. 83-85. 45. Harold Mah, The End of Philosophy, the Origin of “Ideology”: Karl Marx and the Crisis of the Young Hegelians (Berkeley: University of California Press, 1987), pp. 78-79; William Brazill, The Young Hegelians (New Haven: Yale University Press, 1970), pp. 200-201, 203; Bruno Bauer, “The Jewish problem,” in The Young Hegelians: An Anthology, ed. by Lawrence S. Stepelvich (Cambridge: Cambridge University Press, 1983), pp. 187-197. 46. Among the numerous references to Jews during these years, specific mention of Bauer appears only on pp. 83-85, 169, 190, 214, 267 in Kiesel, Jünger-Schmitt Briefe, op. cit. 47. Carl Schmitt, Jugendbriefe - Briefschaften an seine Schwester Auguste 1905-1913, ed. by Ernst Huesmert (Berlin: Akademie Verlag, 2000); and Carl Schmitt Tagebuecher: Oktober 1912 bis Februar 1915, ed. by Ernst Huesmert (Berlin: Akademie Verlag, 2003). 48. Schmitt, Tagebuecher 1912-1915, pp. 140, 197, 245. 49. Ibid., pp. 64, 175-176. 50. Dyzenhaus makes this claim in Legality and Legitimacy, op. cit., p. 100. 51. Schmitt, Tagebuecher 1912-1915, op. cit. p. 226. 52. Ibid., p. 282. 53. Ibid., p. 402-403. 54. Carl Schmitt and Fritz Eisler, Schattenrisse, [under pseudonym Johannes Negelinus Mox Doctor] (Leipzig: Skiamacheten Verlag, 1913). 55. See Gross, Carl Schmitt und die Juden, op. cit., pp. 9, 39-40. 56. Schmitt, Tagebuecher 1912-1915, pp. 67-90. See also Carl Schmitt, Gesetz und Urteil: Eine Untersuchung zum Problem der Rechtspraxis (Berlin: Otto Liebmann, 1912); and Der Wert des Staates und die Bedeutung des Einzelnen (Tuebingen: J.C.B. Mohr, 1914).

57. The latest work on Schmitt by Ellen Kennedy, a political scientist well versed in Schmitt writings, as well as in the conflicting schools of thought on his ideas and influence, is a very positive sign. While she treats quite fairly the theological/providential interpretations of Meier and others associated with the “theological twist,” Kennedy handles Schmitt political and legal thought without reference to Gross’ [sic] contentions about the primacy of Schmitt’s image of Jews. See Constitutional Failure: Carl Schmitt in Weimar (Durham: Duke University Press, 2004).