In his magnum opus: “Constitutional Theory,” Schmitt dedicates a large portion of the book to the Rechtsstaat concept of constitution and law. I believe that the insights he provides here, are not only of historical importance, but also important for us today. At the time Schmitt wrote this work the Rechtsstaat1 was declining and put under pressure internally by democratization, and by both bolshevism and fascism: two ideologies fundamentally hostile to it. This weakness did not last. After the victory of the Allies, it returned in full force within the Western world. It was able to integrate the democratic forces that threatened it before the war, and thus create the mass democratic state and society that we are all familiar with. For a time, Bolshevism was able to compete with the Rechtsstaat. However, that ideology and its law died when the iron curtain fell. Now, only the Rechtsstaat and its concept of law remains.
Schmitt’s thought is rich and subtle, but sadly often distorted and misunderstood. This article gives a brief overview of an aspect of his thought that is little engaged with on the Right, but that can still be of great value for us. I’m convinced that Schmitt gives us certain indispensable keys for the road to a new order. The text below contains both a brief summary of Schmitt’s writings on the Rechtsstaat and its concept of law, followed by an analyses of several aspects of it in today.
The theory of the Rechtsstaat
The existence of commerce and industry depends on regularity. Without a stable framework of law it is nearly impossible for both to flourish to their full potential. In the same vain, the stability and the protection of property is also fundamental for both. It would not be an understatement to say that the defining feature of the modern world is regularity and the predictability of the future that it enables. Taxes might be high, but as long as they are predictable business will, if not thrive, at least grow sufficiently. Instability, on the other hand, is the enemy of business.
During the 18th and 19th centuries political struggle of the Third Estate, — the bourgeoisie, against the Absolute Monarch — its rallying cry was: “we are ruled by law and not by men.” Law symbolized for the bourgeoisie the rule of reason and thus of regularity and justice. Everyone is equal before the law, there are no exceptions to its binding power. Commoner, noble, priest, and even King must submit to it. For them, the rule of law stood in stark contrast with the rule of men, the dictate of the Monarch. The Monarch’s word, by virtue of him being the sole source of sovereignty, was absolute and none could withstand it.2 The monarch could pardon any criminal or condemn any free-man to death by a mere whim. His will was in principle unbounded, and thus arbitrary. This arbitrariness was the Third Estate’s strongest objection against the power of the Monarch. The law had to be founded on “Reason”, and for them: a dictate is never in line with “Reason.”3 The dictate went against their desire for regularity and their sense of justice.
The element of regularity alone is not enough to speak of “the Rechtsstaat.” The concept also includes a whole set of individual rights and freedoms that are in principle inviolable. The liberal truism: “The individual is prior to the State” is the foundational assumption in liberal Rechtsstaat thinking. His rights and especially his right to property must be protected from arbitrary intrusion by other individuals, but especially from intrusion by the State. The Roman Republic was also a society ruled by law, but its citizens did not have liberal rights. Not all were equal before the law. You can only speak of a Rechtsstaat when these freedoms are protected, and if they are to be violated, it can only be done so on the basis of a statute: a law passed by parliament.4
It is also important to note that in the Rechtsstaat, the legislature5 is also bound by the law. It creates laws, but it is not above the law. For this reason, the Rechtsstaat is equally as hostile to absolute democracy as it is to absolute monarchy. Democracy presupposes the supremacy of the will of the People. What the People command, is law. If the People declare private property illegal then that is its inviolable will.6 For the liberal Rechtsstaat, a dictate issued by the one or by the many is still a dictate. It follows then that not everything issued by the legislature is valid for that concept of law. Only law that fulfills certain qualities is valid. Law is a general and reasonable norm, a norm that binds all and is created through a parliamentary procedure.
In contrast with this concept of law, is the political concept of law. The latter flows from the political existence of the State and its political form. It is will and command, and thus an expression of sovereignty. Decision must be made, especially when the State is under existential threat. Not even the Rechtsstaat can avoid this, however much it desires. But what it can do, and any healthy Rechtsstaat does, is to repress the political as much as possible. It does this primarily by turning the State into a calculable entity where all its state activities become competencies. In other words, the responsibilities of each component of the State are carefully lined out and limited by statutes.7 Within its field of responsibility, the State component has all authority, but it cannot cross these boundaries. If it does, the other components are quick to call these actions unlawful and suppress the offending component. These boundaries are only allowed to shift by statutes.8 This is the essential idea of the division of state powers. You regulate and divide the State in such a way that no aspect of it can unambiguously claim total power. Political decision itself is made obscure by the division of powers and therefore the State is no longer absolute. The greatest trick the Rechtsstaat pulls to achieve this is to declare the sovereignty of the law itself. The law is seen as a neutral arbiter that stands above all. The philosophical equivalent of this is the appeal to the law of Reason. However, this is a trick because the law cannot decide. It is not a person capable of action. Someone must always act in its name. Schmitt’s fundamental problem with the Rechtsstaat is founded on this observation.
The political form of a Rechtsstaat can thus be democratic or monarchical. It also does not prescribe to any specific way of implementing its political form. The only requirement is that government is in principle limited, bound by the law, and is committed to the protection of individual rights and the property of its citizens. “The State exists to protect the liberties of its citizens and not for its own glory.” To put this sentiment in an Enlightenment era expression.
The mass democratic Rechtsstaat
The modern Rechttstaat is based on the bourgeois Rechtsstaat of the 19th century. The basic assumptions of both are mostly identical. Assumptions such as: the division of state powers, constitutionalism, focus on the individual and the supremacy of law. But there is one especially important difference, the transformation of bourgeois liberal rights into human rights. The democratic elements that in the early 20th century informed the main opposition to the Rechtsstaat have been successfully integrated into it. We might now speak of “the mass democratic Rechtsstaat” to differentiate it from the “Bourgeois Rechsstaat” of a previous era.
An investigation of how this transformation took place deserves its own proper piece, but we can already make a few remarks. The 19th century Rechtsstaat viewed it as self-evident that only taxpaying burghers could vote. This desire is, however, in opposition to the democratic principle that underlies its political component.9 The liberal state could not hold back these democratic forces and was forced to integrate them into itself. In doing so it has subtly, but significantly changed the Rechtsstaat component of the State. The liberal rights have expanded into human rights. Now it is no longer committed to simply protecting the property of the bourgeois and its freedoms against absolutist intrusions, but also to defending, regulating the prosperity and wellbeing of the people as a whole.
The doctrine of human rights makes the tension between the political component and Rechtsstaat component of the mass democratic state more intense than it was the in the liberal era. On the one hand, it obligates the State to actively interfere within the economy and society on a scale never seen before — this stems from the fact that human rights have both a material and a political rights component obligating the State. In doing so, it starts to obfuscate the distinction between state and society that was a core principle of the Bourgeois Rechtsstaat.1011 On the other hand, it heavily limits the measures the State can take to solve problems, especially domestic ones concerning violence. You can see the results of this tension easily in day to day life. Those who are deemed by the State to threaten the doctrine of human rights, or the human rights of others, are bullied and even jailed by the State. Whereas the human rights of even the most violent criminal always must be taken into account. The State is now at war with itself because the demands that both components make are often in opposition.
An important side effect of the doctrine of human rights is that it further weakens the political component of the state by putting the distinction between citizen and non-citizen under heavy pressure. The Rechtsstaat is still a State and citizenship cannot be eliminated, but what human rights have done is to relativize it. Any substantial and intrinsic limitations on citizenship are inconsistent with the doctrine of human rights. Citizenship has been deprived of any substantial character, and is now nothing more than a piece of paper issued by the state. This weakens the democratic impulse by weakening the cohesion of the people. Now any human, regardless of national status, is protected against state intrusions. The deportation of illegals is perfectly straightforward in a Bourgeois liberal state, but is not in a mass democratic state. The goal of the State is no longer to protect the citizens, but to protect human rights.
The guardians of the Rechtsstaat
The purpose of the division of the state powers is to have each component help constrain the others. The exact way and how the principles of the Rechtsstaat are enforced is different for every country and shifts through time, but in our era there are three guardians of the Rechtsstaat that deserve extra attention.
The main regular guardian of the Rechtsstaat in our era is the judiciary.12 Examples of judiciary obstruction based on Rechtsstaat principles can be found in most if not all Western nations. Be it Italian judges fining the Italian State for the pushback of migrant vessels, or American judges blocking the Trump administrations deportation orders. The central argument for these obstructions are based on supposed violations of human rights. This phenomenon has been called “the reign of activist judges,” but this explanation misses the point on two accounts. Firstly, human rights are enshrined in the legal framework of all Western nations. Through binding treaties, laws, legal precedents, and sometimes even codified within the constitution. To be enforcer of the law is to be an enforcer of human rights.13 Secondly, to call these judges “activist judges” is to paradoxically give credence to the primacy of the law and obfuscating the decisionist aspect of law — further entrenching the dominance of the Rechtsstaat’s concept of an “objective” law that stands above all.
The judiciary is not alone in its guardianship of the Rechtsstaat. Its handmaiden is the NGO sphere that makes up what is called “civil society.” Their function in the preservation of the Rechtsstaat is of the utmost importance, but its role is often ignored. The NGOs function as watchdogs. Each one is entrusted with its own field(s) of responsibility. Their purpose within those is threefold. Primarily, they function as advisory organs for both government agencies, and private institutions. They write reports about their field. On the basis of these reports new government policy is set, and new laws made. A good example of this is the Southern Poverty Law Center. At the height of its relevance, the lists it made of “extremist” organizations or “extremist” symbols were used by social media platforms to ban users and restrict speech. The second purpose is to enforce specific regulations. For example, an NGO can be entrusted with the job of checking if businesses are engaging in discriminatory practices, and if that is found to be the case they inform the government about it. Lastly, they can also sue private individuals, businesses or even the government (components) when they believe that certain rights have been infringed. Whenever there is a possible threat to the Rechtsstaat it is often these NGOs that collect the evidence, write the reports, and go to the judiciary with a case.
These NGOs turn civil society into a very powerful check upon the political component of the state by making sure that every portion of the state is beholden to the doctrine of human rights. Furthermore, it integrates the state into society. They organize the masses into active agents of human rights, and expand its influence over the whole of society. No corner is immune to its pernicious power. Lastly, it creates an extra layer of obfuscation around the Rechtsstaat, making it more difficult to take over in a single thrust. This is made even more difficult by the international character of many NGOs.
This international character is turned explosive by the third guardian of the mass democratic Rechtsstaat: Other Rechtsstaten. Other states have a vested interest in keeping other countries in the fold. To break with human rights is to move against “the rules based order.” You become an international pariah. This above all, makes it difficult, at least in the short term, to found a new order.
The Rechtsstaat and democracy
One of the reasons why it is important to gain a better understanding of the Rechtsstaat, is that having this understanding guards oneself against many possible mistakes one can make in the quest to achieve political power, and the aim to change the structure of the state.
The favorite critique of populists against our current governments is that they are not truly democratic, and that thus they obstruct the will of the People. They implicitly assume that the rule by the People is the goal of the modern state. This critique is a fundamental misunderstanding of the situation. The goal of the Rechtsstaat is to guard human rights against absolutism, be it of a democratic or a monarchical form. As long as the Rechtsstaat and its concept of law exists, actions that populists advocate — like mass deportation — will always be strongly opposed. Especially when it concerns migrants who arrived by strictly legal means. That mass deportations are popular, is irrelevant. The Rechtsstaat is not an absolute democracy and violations against its principles are punished severely.
When you hear a liberal or leftist say: “we must protect democracy” they are actually saying: “we must protect the Rechtsstaat.” When they raise a “cordon sanitaire” or even ban a political party in democracy’s name, it is implied that the “offending” party in question is perceived to be hostile to certain fundamental assumptions of the Rechtsstaat. Most of the time, this means a perceived hostility against human rights.
The democratic assumptions of Populism make it blind to the fact that the Rechtsstaat is not one entity with one center of power that, if taken over, would grant you control over the State. You don’t overthrow the Rechtsstaat by electoral politics. In countries with a strong executive, like France and the United States, an electoral strategy is more feasible. Especially in France, where the president can legally claim extensive powers based on Article 16 of the constitution of the Fifth Republic, and use it to aid in a political and legal transformation. But even in this case, an electoral strategy is not enough. The Rechtsstaat is specifically set up in such a way to make it difficult to take over the state in a single thrust.
Even if you are able to take over the individual components of the state. You have not solve the fundamental problem. The Rechtsstaat and its doctrine of human rights will still exist. You have only seemingly replaced the people in command of it. To have victory, you have to replace the legal foundation and assumptions of the Rechtsstaat itself.
The problems with electoral and democratic strategies have given some people the delusion that an armed coup d’état or even a revolution is a viable path forward. This is idiocy. Coup d’états (especially those of the military variety) are inherently unstable because they do not replace the legal order. In the end, the only thing they are capable of is turning a functional state into a failed state by virtue of their illegality — look for example at the South American military dictatorships. When it comes to armed revolutions, there have been only two in our modern era that can be called successful: the French and the Communist revolutions. Both revolutions were able to enforce a new legal order on the whole of the State and of society. The French revolution was able to forcefully dismantle the feudal/monarchical essence of all the institutions and replace them with republican principles by the use of commissionary dictators. Schmitt goes in detail about this process in his work “Dictatorship.”
Others look at the interbellum for practical guidance. However, the historical situation that allowed the Italian Fascists and NSDAP to claim ownership of the state is essentially different to ours. Both parties used the fundamental tension between the Rechtsstaat and Democracy to their advantage to end the Rechtsstaat in their nations. It was not yet particularly strong in both Italy and Germany, and the democratic forces unleashed by the end of the First World War were not yet properly integrated by it. This allowed the parties to make use of both force to suppress their enemies on the streets, and made possible state response to their use of violence difficult. This was further facilitated by having sympathetic voices to their cause in both the army, the administration, and the judiciary.
This is not at all the case in our modern situation. The Rechtsstaat is still strong and ready to assault any who challenge it. However, there is one lesson that we can and must draw from those nationalist movements: the NSDAP and Italian Fascists used violence in their path to power, but they did not seize power by violence. Both parties were able to claim “the throne” of their respective nations legally, even if somewhat irregularly.14 And once in power, they were able to carry out a “legal revolution”.15
Legality is an important fiction to maintain during the struggle for power. By maintaining it, you paralyze the conservative elements of society and government who might otherwise oppose you, and after victory it becomes much easier to integrate these elements into the new order. Equally as important: by holding to legality you keep the state structure intact, and ready to be utilized. This makes rebellion by loyalists of the old regime, and foreign intervention, much more difficult and unlikely to succeed. By the means of legality you guard the future of the State.
The relevance of the Rechtsstaat
There is a tendency in Right-wing analyses of power and of the “managerial state” to dismiss the influence of ideology all together, and reduce everything to a game of pure power and power structures. I think this is a critical mistake and this is the main reason why I want to bring attention to the concept of the Rechtsstaat. The ideological “color” that infuses the State in both its structure — and in those who control it —, is relevant. The doctrine of human rights, currently at the center of the mass democratic Rechtsstaat, influences how the people in control of it make decisions, and it influences the structure of our states. It is this ideology that informs its two component structure.
By always holding the Rechtsstaat’s dual nature in mind we gain a clearer understanding of how ideology and State interact, therefore enabling us to understand the self-destructive actions our states like to engage in. Some of it is indeed “elites” working to increase their own power, but a large part of it is the Rechtsstaat component of the state subjecting the political component to its own internal logic, the logic of human rights.16 Our problem is both structural and ideological, and these things cannot be separated from each other.
Conclusion
“Constitutional Theory”17 is an important, but dry work that is an indispensable read for any serious student of Schmitt. I am convinced that the Rechtsstaat, as explained by Schmitt, is an important concept that helps to deepen the understanding of our modern states, and also gives us the seeds to think of a new order. As stated in the introduction: Schmitt is a very misunderstood thinker. To clarify his thought, and to bring attention to some of his more “obscure” works, additional articles will when time permits, be published in this series. Until next time.
“Wees bereid.”
—Vulpes
The European concept of ‘Rechtsstaat’ is often mistranslated in English as: “the rule of law.” The Rechtsstaat adheres to the ‘rule of law,’ but also contains a moral commitment to a specific principles and rights.
It is important to underline here that the Monarch is in principle unbound, but that does not mean that tradition and custom lost all its influence on the Monarch’s actions in concrete historical cases.
For the 18th and 19th bourgeois thinking it did not matter much if the dictates of the Monarch did good. The mere fact that they were dictates by an absolutist made them unjust.
This is an important addendum and is the cause of many misunderstandings — in particular with libertarians in Europe. Yes, freedom of speech is a fundamental liberal right, and the state can not arbitrarily infringe on that right. Liberal rights cannot be arbitrarily denied or granted. It is not because you are a friend of the president that he can grant you an exception. This however, doesn’t mean that freedom of speech cannot be limited under Rechtsstaat logic. They can, but only on the basis of a law. Legality is the name of the game.
Not only the legislator, but every component of the state is bound by the law. This is a core characteristic of the Rechtsstaat. Everything that is done must be done by legal means.
Even though basic liberal rights can be limited on the basis of statutes (e.g. laws forcing the sale of property against compensation in certain defined cases) and even temporarily suspended (e.g. during martial law): they cannot be permanently abolished. If that is the case, you no longer have a Rechtsstaat. A democracy is not constrained by this and expropriation is perfectly legal under its own logic.
The careful definition of what a state component and institution can and cannot do, does not mean that it loses power within that limited sphere. On the contrary, often the defining of power and calculability that it grants, intensifies the power of the state component within its sphere.
This does not mean that there is no conflict about the limits of jurisdiction between the different components of the Rechtsstaat, far from it. The statutes that determine the spheres of responsibility are often vague by necessity. This creates a gap in decision and thus makes different readings of where exactly the limit must be placed possible. Power abhors vacuums, and if possible someone will try to fill it. The decision must be made. The phenomenon of “judicial overreach” is a clear example of this. A change of material conditions, for example, by technology can also create gaps in decision.
The logic of democracy demands an ever increasing expansion of citizenship until all those who could be seen as part of the people are included. In other words, on the basis of a strictly democratic logic, it is almost impossible to refuse non-taxpayers, women, and even young adults the vote.
This is what Schmitt calls “the total State.” A State where the important Bourgeois principle of the division between State and society is being extinguished. On the basis of this, you can make a legitimate case that the Rechtsstaat does not exist anymore. I partly agree with this and this is why I speak of the “mass democratic Rechtsstaat” to differentiate the two. However, I believe that the core structure of the Bourgeois Rechtsstaat remains present in our modern states and so makes “Rechtsstaat” still a relevant concept for us. A large part of this article implicitly states why. To directly answer this question, I would say that the two spheres still exist, but are interpenetrated. The State still exists in function of society, but because of the wide reach of human rights it is obligated to interfere much more heavily within society.
It is important to note that the tendency for the State to get involved in all aspects of society was already happening before the second world war. Mainly because of the tension between democracy, parliamentarianism, and legal positivism. Schmitt goes into detail about this in both “Constitutional Theory” and in “The crisis of Parliamentary Democracy.”
Judicial overreach is an interesting and complicated topic. The popular explanation for this overreach is usually “the activist judges theory”: Appointed radical leftwing judges interpret laws in the favor of the left. There is some truth to this. People like Soros have indeed funded campaigns to get left-wing judges elected, and it is also a fact that the Obama and Biden administrations have appointed as many judges as possible who share their ideological convictions. This however, misses the point. Judicial overreach can only exist when there is a gap in decision. A cause for this is the entrenchment of constitutional statutes by supermajorities. This creates a higher law, and so weakens the power of the normal legislature over the law. Normal law can now conflict with constitutional law, and thus there is now the need for someone outside of (a normal) parliament to decide these cases. This problem is inherent within a state with a written constitution that is strongly entrenched. Someone always has to decide. Because of the — purposefully made — weakness of the executive branch in most Rechtsstaten and because of the self-castration of parliament: the judiciary is often the only state component that can fill this gap.
“Conservative” judges are still men of the law. They will enforce the law even though they might have personal objections about some details of it. This is one of the more serious problems with the populist project.
It is important to keep in mind that after the allied victory, steps were taken to prevent Fascist style legal takeovers of Rechtsstaat. A clear example of this are the eternity clauses (art. 1-20) of the Bundesrepublik’s constitution.
On this topic see Schmitt’s essay on “Legal revolutions” translated and posted on this substack.
The Rechtsstaat component of the state seems to have a strong tendency to win out when it comes to internal matters, but in the case of foreign matters, the political component has a higher likelihood of offering strong resistance.
This book contains much more than just his views of the Rechtsstaat. It is first and foremost, a work on constitutions. Furthermore, because of its historical context, it contains many interesting insights on the problems and history of the Weimar constitution. It is in many ways the “antagonist” in this work.