The attorney general has offered an accidental insight into the true nature of Starmerite proceduralism
Lord Hermer, the attorney general for the United Kingdom, made a particularly egregious claim recently: that opponents to the European Convention on Human Rights (EHCR) are reminiscent of the Nazis.
Speaking in the annual RUSI lecture (the Royal United Services Industry), Hermer attempted to defend the existence of, and obligations under, international law, by stating that:
The claim that international law is fine as far as it goes, but can be put aside when conditions change, is a claim that was made in the early 1930s by ‘realist’ jurists in Germany most notably Carl Schmitt, whose central thesis was in essence the claim that state power is all that counts, not law.
Attempts to “apologise” for the remark as “clumsy” are, themselves, revealing: Hermer made the comparison between those critical of the ECHR and the “grand jurist of the Third Reich” multiple times, so it was not a passing remark or one that was made flippantly in the to-and-fro of a Q&A or a debate, but a premeditated and considered one. Moreover, given it was a speech made in his official capacity, there is a good chance the Prime Minister would have seen it and had to sign it off; if he did, I doubt it was a clumsy statement; and if Starmer didn’t see it, the clumsiness is the lack of tact, not the statement itself.
But in describing the remark as “clumsy”, Hermer did not concede it was wrong.
Of course, it was. Carl Schmitt, the politico-juridical theorist that Hermer has summoned forth like a bogeyman, has a more complex and detailed theory of power than Hermer’s strawman here presents.
First though, a bit of history. The best book I’ve read about the life of Schmitt is Jan-Warner Muller’s A Dangerous Mind, which looks at Schmitt’s career as a thinker before, and after, the rise of the Nazis and the Second World War. Schmitt as a thinker was heavily involved in a debate in the aftermath of the First World War that, in hindsight, looks simply academic in the face of an onrushing totalitarian world, but at the time had important consequences for the war-ravaged continent as the pre-war world collapsed.
In the volatile Weimar Republic, questions of state legitimacy, government power, and from where authority ought to be derived, had serious impacts for the average citizen as near-civil war wracked the streets, where Sparticists, Communists, Fascists, monarchists and all stripe of political colour clashed.
For Schmitt, his oeuvre was concerned with how modern states can legitimately ground their existence, and how authority exists and can be exercised. Below I will explain how this developed theoretically, but here it is important to confront Schmitt’s controversial and downright dangerous associations. He initially endorsed the National Socialist government in 1933, and had overtly anti-Semitic beliefs (he once claimed that German law should be purged of the “Jewish spirit”). After the war, he resisted denazification efforts, and was subsequently exiled to the fringes of German political life, not allowed to take a public position.
Nevertheless, his political thought fascinated thinkers across the world for the remainder of his long life. Dying in the mid-1980s, at nearly 100 years old, Schmitt had been visited by a wide array of leftist thinkers from Kojeve to Kossoleck, who took seriously his criticisms of liberalism’s inability to draw distinctions between members and non-members of a political people, and the yawning gulf of legitimacy at the heart of “liberal democracies”.
This gulf is the haunting figure of Schmitt’s theory that followed his work throughout his life, and continues to haunt the debate among political theorists on how liberalism can justify its existence as a political philosophy. While Schmitt’s work ranges from engagements with the conceptual history of power (in Die Diktator, 1919 and The Leviathan in the State theory of Thomas Hobbes, 1938) to the real relation between the people and the state (in Constitutional Theory, 1928), the two works for which Schmitt is known are Die Begriff des Politischen (The Concept of the Political, 1932) and the four essays collected as Political Theology (1922).
From these two works come the phrases which, I think, best summarise Schmitt’s political theory: “The political is the distinction between friend and enemy” and “Sovereign is he who decides in the case of the exception”, respectively. The meaning of these two phrases combined can be summarised as follows:
The relation between two groups of people can be described as political when the relationship between them has deteriorated so irretrievably that there is the real possibility of violence and killing, and the person or persons capable of leading each group in acting is the one who has recognised that this decisive split has emerged.
A wealth of thought goes into Schmitt’s theory, which I won’t repeat here, but there are some basic points that must be made: politics and the political are not the same, as the former is administrative power while the latter is constituent power; the political is a point of irretrievable antagonism, and while relations can improve, those two groups can never be reconciled into one again; and so the pluralism that Anglo-liberalism allows for was considered, in Schmitt’s view, to create allegiances that compete with the collective group that is defining of an individual’s political identity. For Schmitt, the historical form this had taken was the state, certainly, but it did not have to be.
In fact, one of the things Schmitt warned against somewhat presciently was the emergence of human rights discourse as a method for grounding political legitimacy. This is because, per Schmitt’s theory, the political is a dimension of ineradicable difference, and if the prism through which that difference emerges is over “human rights”, then the side that claims to be acting on behalf of humanity presents their opposites as inhuman. Ironically, Hermer’s statement of condemning his opponents as beyond the political pale because they are critical of the ECHR is the very thing Schmitt warned against as the natural conclusion of political liberalism.
There is actually nothing in Schmitt’s theory that prevents his thought being applied to the international realm. In fact, Schmitt himself tried to: his argument developed away from a defence of the nation-state and in favour of what he called Grossraum, or “great spaces”. His late work, The Nomos of the Earth, looked at the history of political power as essentially land-based and the development of what we now regularly call “spheres of influence”.
Hermer’s strangest claim seemed to be that Schmitt’s “so-called realism has for eighty years been refuted by the fact that these institutions … have provided the basis until now for Western and other states, wildly varied in nature, to interact with each other under conditions of peace and stability”.
Hermer’s institutionalism is actually not so far from Schmitt’s
Glossing over the long history of pre-20th century European interactions, and the late-20th century collapse of Yugoslavia, the genocide at Srebrenica, and the Kosovo war, Hermer’s institutionalism is actually not so far from Schmitt’s: the central claim being that a sovereign power must reign over groups to ensure their peaceful cooperation by sublimating their own interests to the sovereign’s. Given that Hermer said he would never challenge the ECHR on issues of human rights law, one wonders exactly who Hermer thinks our sovereign is.
Not only this, but Hermer’s odd guilt-by-association tactics are the stuff of adolescent online spats — calling someone a Nazi or a fascist as a final admission of intellectual defeat and refusal to engage with that person’s beliefs. But if guilt by association works one way, then Hermer must be prepared to follow it in the other direction: for one political theorist who has attempted to show the relevance of Schmitt’s critiques of liberalism (specifically Anglo-pluralism) is Chantal Mouffe, the leftist thinker who I’ve heard nicknamed the “philosopher-queen of Momentum” for her support for the Corbynist movement.
A strange misunderstanding of Schmitt lies under Hermer’s “clumsy” attempts to paint voices critical of the ECHR as reminiscent of “1930s Germany”. It is the final admission of the weakness of one’s argument to accuse one’s opponents of Nazism, and this comes perilously close. Besides, it will be a long time before Britain leaving the ECHR comes onto the table, so perhaps Hermer’s time is better spent lecturing those states that have explicitly said they are considering leaving the ECHR — like Denmark, Italy, or Germany.
