Books Burn Badly - Manuel Rivas [190]
Who was this German jurist Spain paid tribute to in 1962? He was something more than a jurist. He was once considered the Kronjurist, the Third Reich’s ‘official jurist’. The architect of Nazi legality. The proponent of ‘a state of emergency’, for whom, after Hobbes, ‘auctoritas non veritas facit legem’. Authority, not truth, makes law. The deviser of Decisionism, by which the ‘providential’ nature of absolute power was brought up to date, so that the monarch was now the Caudillo or the Führer. In practice, a futuristic formulation of tyranny for the masses. Unlike other periods, when the mark of a tyrant was his obscene contempt for the law, Schmitt’s great conjuring trick was to transform the tyrant into Supreme Judge, the maker of law, the one who imprints the law with his footsteps.
After the fall of the Third Reich in 1945, Carl Schmitt spent a brief period in the internment camp of Berlin Lichterfelde-Süd and in Nuremberg as a defendant and witness, proceedings he managed to slip away from with customary ease. Regarding this experience, he wrote Ex Captivitate Salus, which contains a single show of repentance in the use of Macrobius’ Latin phrase ‘Non possum scribere in eum qui potest proscribere’. I cannot write against one who has the power to proscribe. An equivocal statement in a master of oblique expression. A surprising device in someone who read Melville and knew the scrivener Bartleby’s response when asked to do something that went against his conscience, ‘I would prefer not to.’ Some were brave enough to say no. In the legal field, the courageous Hans Kelsen, for example, who had an argument with Schmitt about parliamentary democracy and, having been proscribed, branded ‘an enemy’, carried on defending freedom while in exile. Some at least resisted the crushing totalitarian machine in silence. Schmitt did not. On the contrary, his contribution to the rise of Nazism was enthusiastic and systematic during the crucial period 1933–1936. Before that, he had helped to undermine the Weimar Republic by proposing an abuse of presidential power that foreshadowed modern forms of dictatorship.
He had Donoso Cortés, the gleam of the sabre, in mind.
He was helped to join the Nazi party in 1933 by the philosopher Martin Heidegger, later Rector of Freiburg University, who also wanted to descend to Plato’s cave and requisition the projector of ideas. ‘Whoever loves storm and danger should listen to Heidegger!’ he exclaimed on 30 November in Tübingen. Such rhetoric excited Schmitt, who also declared, ‘When Heidegger speaks, the mist disappears from in front of our eyes.’ This may not have been so important. For many, part of Schmitt’s charm resided in his ability to use disguises. With a following wind, however, he would abandon his cryptic style and his prose would advance with perilous determination. On 1 August 1934, the then professor in Berlin wrote in the German jurists’ newspaper, Deutsche Juristen-Zeitung, the most daring legal formulation of tyranny in modern times: ‘Only the Führer is called to distinguish between friends and enemies. The Führer heeds the warnings of German history, which gives him the right and the necessary force to bring about a new State and a new order. It is the Führer who defends law against abuse when, at a moment of danger, through the powers invested in him as Supreme Judge, he directly creates Law.’ This was not just an instrumental gift for Hitler’s future. The text served to justify, a posteriori, the executions ordered by the Führer on 30 June that year, during the so-called Night of the Long Knives. Among those eliminated was an old friend of Schmitt’s, the chancellor Schleicher. Later his contributions, which continued to be forthright, were aimed at legitimising the Third Reich’s aggressive expansion. There is an idea that pervades his work, that of war as midwife.
‘And Cain killed Abel. This is how the history of mankind begins.’ Schmitt’s lapidary statement. During a lecture at Cologne