Demystifying Schmitt

Eric Posner
Adrian Vermeule

Carl Schmitt is too important to be left to the Schmitt specialists. Although scholars in law and other disciplines who could profit from Schmitt have begun to do so, they are sometimes repelled by Schmitt’s conceptualistic style and jargon. This chapter attempts to demystify Schmitt by interpreting some of his main insights through the lens of modern social sciences, particularly economics and political science. There is a large literature in political science on the political foundations of democracy, constitutionalism and the rule of law. This literature emphasizes that legal rules, by themselves, cannot create a political equilibrium, which always depends upon the expectation of political actors that other actors will contribute to preserving the constitutional regime rather than subverting it. This insight allows us to interpret Schmitt’s fundamental distinction between legality and legitimacy more concretely than in extant work. There is also a large literature in law and economics on ex ante rules versus ex post standards. Schmitt’s theory of the exception can be understood as an argument that governance through ex post standards, rather than ex ante rules, is inevitable and even desirable where political, economic or military conditions change rapidly and cause exogenous shocks to the constitutional order. Overall, the chapter claims that a pragmatic, social-scientific reading of Schmitt will help to identify his major contributions more clearly and make Schmitt more useful and accessible to scholars interested in law and politics.