Carl Schmitt by William E. Scheuerman

By William E. Scheuerman

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When pursued consistently, realist views of law deny the integrity of legal discourse by interpreting legal argumentation as a mere epiphenomenon of a more fundamental struggle among competing political and social consti- Page 25 uencies. Thus, power realist views of law ultimately reduce law to nothing but facticity: they can only speak coherently about the social and political "facts" of empirical power, but hardly of "norms" and the problems of legal justification. Schmitt then relies on this otherwise persuasive criticism of power realist conceptions of law in order to justify a conclusion that by no means automatically follows from it.

But if legal determinacy is no longer to be located in the nexus between the legal norm and the judge, where might we look to conceive of its possibility? Schmitt offers a novel answer to this question: legal determinacy still legitimately constitutes the guiding principle of the legal system. Yet the problem of legal determinacy must be conceptualized anew so as to focus on the relationship between the individual judge and his peers. In other words: the "normativistic" liberal focus on the relationship between the norm and the judge needs to be jettisoned for an emphasis on the relationship between legal decision makers.

No matter that ''ethnic cleansing" necessitates terror: in Schmitt's view, the struggle to develop an intrinsically German form of postliberal legal determinacy demands nothing less. Legal reform requires a reform of legal decision makers. Legal determinacy can never be adequately achieved by means of a particular set of legal statutes or doctrines. Yet a deeper and more dependable degree of legal determinacy allegedly might be realized by establishing an ethnically homogeneous judiciary, free of alien [artfremde] ethnic and racial tendencies.

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