Schmitt’s “sociology of juristic concepts”

[I briefly had a post up asking about this notion of Schmitt’s, but I deleted it as I worked through the chapter and figured some things out for myself.]

One of the two famous sentences from Schmitt’s Political Theology turns out not to be a complete sentence at all. The familiar bit is: “All significant concepts of the modern theory of the state are secularized theological concepts”—and weirdly, you very rarely see the rest of this long sentence quoted: “not only because of their historical development—in which they were transferred from theology to the theory of the state, whereby, for example, the omnipotent God became the omnipotent lawgiver—but also because of their systematic structure, the recognition of which is necessary for a sociological consideration of these concepts” (36).

It seems to me that Schmitt is actually downplaying the “historical transfer” notion, which has tended to be more of a focus in the discipline of “political theology.” Obviously there’s a historical genealogy of sorts that could be done — but I don’t think the “secularization” process he’s talking to is the same as the supposed society-wide secularization that occurred with the dawn of modernity. It’s a synchronous process: the modern theory of the state “secularizes” modernity’s own theological concepts (and so on in finer-grained historical periodizations). The examples he uses are not Aquinas or Scotus. The very first person he quotes as evidence is Leibniz (37), and he also brings forward Descartes, Rousseau, and Hobbes. I’d suggest that he could just as easily have said, “and theological concepts are ‘theologized’ juristic concepts,” but he avoided doing so for rhetorical reasons: that kind of statement lends itself to reductionism, which he’s at pains to avoid and refute, and in any case it’s just not surprising or striking (precisely because of the reductionistic assumptions he’s working against).

Another puzzling element: what is a “sociology of juristic concepts”? Here again he’s determined to avoid reductionism. For instance, he floats the possibility that juristic ideas could be determined by the social standing of legal scholars, etc., but he believes that’s a category error. He wants to say that the theological/metaphysical ideas of modernity (after the first paragraph he’ll use these two terms interchangeably) and the juristic ideas of modernity relate directly, simply as systematic conceptual apparatuses. The reason they can relate directly is that they are at the same level of totality: “It is thus not a sociology of the concept of soveriegnty when, for example, the monarchy of the seventeenth century is characterized as the real that is ‘mirrored’ in the Cartesian concept of God. But it is a sociology of the concept of sovereignty when the historical-political status of the monarchy of that epoch is shown to correspond to the general state of consciousness that was characteristic of western Europeans at that time, and when the juristic construction of the / historical-political reality can find a concept whose structure is in accord with the structure of metaphysical concepts” (45-46). “The presupposition of this kind of sociology of juristic concepts is thus a radical conceptualization, a consistent thinking that is pushed into metaphysics and theology. The metaphysical image that a definite epoch forges of the world has the same structure as what the world immeidately understands to be appropriate as a form of its political organization. The determination of such an identity is the sociology of the concept of sovereignty” (46).

Now obviously Schmitt’s (insane right-wing) agenda is to advocate a kind of forcible “return” to the classic political theology of early modernity as a way of keeping the devil (communism, anarchism, and weirdly capitalism?) at bay while spitting the lukewarm liberals out of his mouth. Hence his complaints about the incoherence of liberalism, the irreducibility of the decision, etc., etc. The historical genealogy isn’t really of interest to him because he’s trying to make a case justifying a dictatorship that will reimpose the “true” political theology. But I think his “sociology of juristic concepts” raises an interesting question: namely, is it only in early modernity that such a procedure is possible, i.e., that the theological/metaphysical ideas and juristic concepts reach the level of totality at the same time? (I’m thinking of early modern projects like that of Descartes, where a particular concept of God is articulated into the same conceptual apparatus as a theory of optics, etc. — knowledge seems to be emphatically one whole thing in a way that we can’t really imagine now.)

Obviously such a synchronization did not occur in the medieval period, where high scholasticism produced an intellectual apparatus of amazing rigor and yet the political conditions were incredibly fragmented. Similarly, global capital seems to provide us with a regime even more “total” than any absolute monarchy, and yet the intellectual field is radically fragmented.

The possibility that this synchronization is a contingent achievement of a particular epoch would leave open the possibility of a more flexible and still non-reductionistic relationship between political and theological/metaphysical concepts. His emphasis on the relative autonomy of conceptual necessity — for instance, his continual references to how Hobbes’s intellectual honesty and rigor led to his choice of personalist decisionism despite the fact that his scientistic and atomistic worldview seemed to militate against it — is also well-taken.

That is to say, if you subtract out the insane right-wing agenda that is distorting literally everything he says, there’s a lot of amazingly useful stuff in there!

Anyway, just some notes. (I’m rereading Schmitt for my devil project, which is intended to be situated within the discipline of “political theology.” Today was my day to generate some detailed reading notes over Political Theology.)

18 thoughts on “Schmitt’s “sociology of juristic concepts”

  1. Adam, I think you are correct in this analysis. And I’m sure you already know the source. But specifically regarding this phrase “sociology of juristic concepts,” I commend Paul Kahn’s reading of Schmitt to you (from POLITICAL THEOLOGY: FOUR NEW CHAPTERS ON THE CONCEPT OF SOVEREIGNTY), specifically pp. 92-101.

    There’s much that I don’t agree with Kahn about, or at least there are several places where I wish he’d allow his analysis to go further in a certain direction, but I’ve found him extremely helpful in deciphering the idiosyncracies of Schmitt’s language.

  2. Hi Adam: I’m going to be difficult here. But I’m having trouble parsing your claim that “if you subtract out the insane right-wing agenda that is distorting literally everything he says, there’s a lot of amazingly useful stuff in there!” My problems are three. [1] The “insane rightwing stuff” is fascist, proto-Nazi. [2] Can you subtract out the fascist, proto-Nazi stuff or will there always be a remainder? [3] If the fascist, proto-Nazi stuff and its remainder distort “literally everything,” then what’s “useful” here?

  3. zjb, I’m not saying to substract out material, the “Nazi bits,” I’m saying to subtract out the distortion. He’s saying a lot of stuff that’s really interesting and useful, but he puts his own agenda-driven spin on it.

  4. i understood what you meant. my question is whether or not you can subtract out the distortion and agenda from the point, like you might subtract form from content. as a good liberal, it’s always been my sense about CS that you can’t, because the two are always imbricated in any text, including these ones. i’m not seeing how you can have one without the other. this is, no doubt, my problem, this unthinking resistance in the idea that one Nazi in the canon is more than enough.

  5. I don’t want to imply that it’s easy or that it’s without risk. I’m just finding these books fascinating — they “keep giving” as I analyze more and more closely — and I have trouble imagining that it’s due to some kind of unconscious love of Nazism, for example. At the same time, no one’s obligated to study his work. “Because he’s a Nazi” is a pretty good filtering device.

  6. “this is, no doubt, my problem, this unthinking resistance in the idea that one Nazi in the canon is more than enough.”

    Then stop resisting: there should be as many Nazis in the canon as there are Nazis worth reading. You can’t become a Jedi without risking becoming a Sith. Or something like that, preferably with an actually accurate reference.

    Or, if you prefer: everything Rawls said was distorted by his liberal agenda (and arguably his analytic background even above and beyond said agenda), but if you read that out and take his account of justice as purely descriptive, it’s difficult to argue with it.

  7. but there’s the rub. i’m a liberal so i don’t mind the liberal distortions of Rawls. i also think those distortions are corrigible in ways that fascism and nazism are incorrigible. of course, i understand that an anti-liberal might not be as bothered by the anti-liberalism of someone like Schmitt, even if they’d like not to consider the fascist-nazi stuff. “because he’s a Nazi” is not an argument; it’s a red flag. and to ignore it is already being too polite with what might turn out to be very odious stuff. nobody is trying to filter anything, but one always has to justify one’s categories, and why they come to them when they do. maybe, less polemically, i’d more simply ask what you think, in particular, Schmitt keeps giving.

  8. I don’t think this is really the forum to decide that question on a global level. I’m planning on using some of his concepts in my next project, and I imagine periodic blogposts will continue to trickle out. We’ll have to see if it’s worth it or if Schmitt winds up ruining everything.

    In any case, he’s an unavoidable point of reference in the field in which I’ve chosen to situate my devil project (“political theology”) — and I don’t intend to wind up very “Schmittian.” In fact, I want to push back against some ways in which Schmitt’s influence has foreclosed certain questions or artificially narrowed the purview of that field.

  9. Or to put it differently: I draw some stuff from Schmitt in this post. I think it’s usable. Presumably I’ll find other stuff usable as I continue my research. This is a concrete test case — am I just deluded for thinking I can use these insights without being tainted with Nazi sympathies? It seems kind of crazy to me to think that these particular musings about the relationships between philosophical-theological systems and political systems is somehow proto-fascist, but maybe that’s just me.

  10. i understand and like very much your argument from the devil, and, yes, from the vantage point of poltical theology there’s nothing to be done about it except to dive into Schmitt, even if Karl Lowith made the same point basic point about the transfer of categories across the political-theological “divide.” the concepts that bother me most in Schmitt are both theological and poltical. they are “omnipotence,” “states of exception,” “the friend/enemy distinction,” and “decisionism.” and maybe that’s just me. thanks so much for your forebearance.

  11. This is helpful… I remember reading Jan Assmann’s critique (I’m forgetting where, but I’m assuming in The Price of Monotheism) of Schmitt on the basis of an original theologization of Egyptian political thought in Hebrew conceptions of justice, and thinking, “Well, maybe, but you’ve got to read Schmitt awfully rigidly (and, you know, ignore Schmitt’s focus on *modern* *state* theory) to think that this one example of theologization really carries much weight as a broader critique of political theology”. At the time I was only thinking in terms of the historical aspect of Schmitt’s thesis. The systematic/conceptual aspect of political theology expands the conversation considerably, though, and is really much more to the point.

  12. Dear Mr.Kotsko,
    thank you for your article. Indeed: Schmitt’s political theology is in not a contribution to the history or genealogy of concepts. It is the attempt to understand the connection between the political settings at any given point in time and the corresponding metaphysical frame in the same historical periode.
    For my part, I have stopped to take the historical argument of political theology (i.e. political theology as a contribution to conceptual history) seriously.
    Yours sincerely
    Burkhard Conrad

  13. Rats. I was working out an answer to the first post re the sociology ref, but then my day intervened. I think you’re right tho Adam re yr point about historical genealogy. When Schmitt says “This is a sociological problem, but not a problem of the sociology of a concept” (PT. 44), what he’s indicating is the distinction between a concept’s systematic structure, whose mode of recognition and designation should be separated from history. If you put the accent on the ‘but’ in the citation: “not only because of their historical development.. BUT also because of their systematic structure, the recognition of which”, you can see how this separation is the main point, and how it works as a sort of mirror for the attempt to isolate a properly political sphere, which is his real obsession and fear – losing the political – and his real problem with liberalism. Derrida shows very clearly how paramount this is for Schmitt in his critique in the Pols of Friendship. One thing Derrida points out is that this separation belongs to an older European heritage that it reiterates. Despite this, I’d don’t agree with the claim you make that Schmitt wants to “advocate a kind of forcible “return” to the classic political theology of early modernity” however much he seems to admire the counter-revolutionary ‘legitimists’ like Donoso Cortes. I don’t buy Heinrich Meier’s arguments about the ‘theological’ nature of Schmitt’s project – I’d follow Nancy when he says that, contrary to received wisdom, Schmitt sought rather a more rigorous ‘secularization’, or at least, a purer concept of the political he tries to build on existential rather than metaphysical ground. Really, it amounts to a pure formalism, especially if you read Political Theology together with Concept of the Political. Of course, as Derrida shows, such a project falls to the ground, and in ways that reveal its insane right-wing logic. There’s no doubt that Schmitt would try do anything to preserve the state and the juridical order, but this doesn’t include a return to an earlier era or the old political theology.

  14. Also, I don’t see the point of the posts that say, more or less, don’t read Schmitt cos he’s a Nazi. It’s like when Adorno sits on the letter between Benjamin and Schmitt because it’s such a scandal. Taubes yells about this in his inimitable way, and he’s right. What’s fascinating is precisely locating Schmitt’s thought in this period, and realizing that Benjamin and Arendt were also exercised by very similar questions and critiques (though with radically different results) but to the point in Benjamin’s case of reading and responding to it, as well as expressing his admiration. It’s an absolutely damning critique of liberalism, and you can’t just write it off altogether.

  15. Ruth, You’re right that “going back” is a mischaracterization. In the part on Cortes, he’s clear that the old principles of legitimacy are defunct and can’t be restored — so all we can hope for is a (new form of) dictatorship to stave off chaos. Does that sound more right?

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