The Critique of Technology

[Kai Frederik Lorentzen]

There is absolutely nothing 'fascist' about all this. Unless categorial
objectifications (including, first and foremost, the legal order) are
grounded in some pre-conceptual dimension, the system of which they
are part tends to self-destruct. This is a predicament that, in some way
or other, was confronted by some of the best minds of Schmitt's generation
as they sought to solve related problems. This is the context defining,
among others, Theodor W. Adorno's articulation of identity logic, Edmund
Husserl's critique of naturalism, John Dewey's account of the natural
fallacy, Ludwig Wittgenstein's vindication of the primacy of forms of
life, or Alfred North Whitehead's warnings about misplaced concreteness.
As in the case of the unabridgeable gap optaining between legal structures
and all the concrete cases they must cover, being and thought do not and
cannot correspond. Being always exceeds thought, and the elimination of
the resulting residue by Enlightenment ideology leads to thought redefinition
being done exclusively in terms of its abstract concepts (identity logic).
The result is an ungrounded rationalism articulated through instrumental
reason that can accommodate any political agenda, and can turn into the
mad rationality typical of Nazi ideology. The only solution is to ground
this rationalism in the pre-rational and pre-conceptual dimension that has
become occluded or forgotten; through mimesis for Adorno; in the lifeworld
for Husserl; in experience for Dewey; in 'concrete orders' for Schmitt, by
returning to Being for Heidegger, in "forms of life" for Wittgenstein, etc.

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"The substance of equality can in different democracies and different ages
be DIFFERENT" -- CS: Verfassungslehre [1928], § 17, own translation.
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.. The critique of legal positivism or of 'the rule of law' proceeds along
these lines. Predicated on a set of abstract norms, the managerial-liberal
'rule of law' is subject to a variety of interpretations, some of which can
end up legitimating practically anything, including Nazi racial politics. The
dialectic of enlightenment unfolds precisely by such a diabolical reversal
of abstract rationality into myths much worse than those supposedly left
behind, and with much more disastrous consequences. Grounded in nothing but
its pretenses to embody universally valid and apodictic truths or the arbitrary
whims of legislators representing particularistic interests, the managerial-liberal
rule of law can readily legitimate the most racist of policies by hypostatizing
the inferiority or even intrinsic evil of particular groups, instead of preferring
the similarly abstract assumption of the equality of humankind. Adorno's mimesis
as a means to access an uncontaminated dimension able to resolve indeterminacy
and arbitrariness is not all that different from Schmitt's recourse to concrete
orders as the horizon allowing for a resolution of the problem of legal indeterminacy.
And Schmitt also drew conclusions similar to Adorno concerning the logic that
facilitated the advent of Nazism. According to Schmitt, it was precisely the
inability to deal with the indeterminacy of managerial-liberal law that brought
Hitler to power. A post-liberal alternative to legal positivism was not an option,
but a necessity. It was the only way to salvage what he could from the ruins of
Weimar.

Schmitt understood law to be more than a mere aggregation of abstract rules. Already
in 1934, in re-examining the history of law, he argued that the meaning of the Greek
concept of nomos is not law, rule, or norm, but above all order, by which he meant that
any domestic legal order must be based on something more than rules. Given the unstable
constitutional predicament of the Weimar Republic and European public life after WW I,
Schmitt sought a concrete foundation for law, able to withstand unstable social and
economic conditions and the vagaries of politics --- even more so after the Nazi's rise
to power, when the regime's arbitrariness may have been contained by reference to more
solid grounds than racial myths. He had no intention of politicizing the law, but rather
sought to ground it in the lifeworld of a particular people. As he often reiterated, all
laws make sense only at a particular time and in a particular place. Clearly, if concrete
orders such as tradition, family, community, and faith are regarded as the building blocks
of fascism, then most societies have been 'fascist' since time immemorial. No legitimate
legal order can be abstracted from these 'concrete orders' without law deteriorating into
the abstract and instrumental tool of any party, as it did with the Nazi Party in Germany
and with the Communist Party in the Soviet Union",

--- as Paul Piccone and Gary Ulmen write in "Uses and abuses of Carl Schmitt" of which I
posted the weblink yesterday, leaving away today all footnotes for reasons of readibility.


KFL


The three main reasons why Schmitt got expelled from the NSDAP in 1936 (and had then, just
like Heidegger to whom he is in many regards comparable, SS-snitches sitting in his lectures):

a) too etatist, no sympathy for the Nazi Movement (Schmitt became party-member in the days after
the Ermächtigungsgesetz, because he thought this to be his duty as a German state-jurist).

b) too catholic (always kept his Virgin Mary altar in the house).

c) private contact with Jewish people plus a Serbian wife.

If he hadn't been appointed "Preußischer Hofrat" (Prussian Court-Councelor) by coke-head
Hermann Göring earlier on, the SS would probably have hunted him down. Pretty close it was.

Which, of course, does in no way excuse Schmitt's anti-Semitic professional work between '33 and
'36, especially his comments on the Nürnberger Rassengesetze and, sigh, his suggestion to mark all 
law-books in German libraries that were written by Jewish people with a "J". Right, others wanted 
to burn or ban the books, but this does not really make it better. 
 
[If anybody out there is interested in communicating more about Carl Schmitt,
offlist is OK with me, too]