Yesterday I read an article by William Scheuerman – ‘After Legal Indeterminacy: Carl Schmitt and the National Socialist Legal Order’. Schmitt is an odd character for me and at some point I do intend to make more of an engagement with him, when I get the time. I first came to Schmitt through Neumann and Kirchheimer, and was therefore pretty critical of him. All I really knew about Schmitt was that he was a Nazi and so was pretty shocked when I found out just how popular he was with the new left.
Now I still maintain a pretty critical distance from him, however, in order to understand a whole lot of modern people writing about the law (Agamben, Hardt and Negri, Zizek etc.) and the particular conjuncture we’re living through (permanent state of emergency). This being said I’m not really whether Schmitt can’t be ‘replaced’ with a bunch of other critical legal theorists (e.g. the Crits, the Realists and of course the Marxists).
Scheuerman’s account is pretty interesting. I already knew a lot of what he says as regards indeterminacy. However, I have a few issues with the way in which he addresses it. My biggest problem with what Scheuerman rights is that he seems to confuse indeterminacy with unpredictability. Take for instance his account of how Schmitt wanted to distance himself from radical indeterminacy. Essentially for Schmitt much of the indeterminacy present in the law owed to the fact that different ethnic ‘spirits’ attempt to use the law for their own, radically different ends. Therefore Schmitt proposed a way to render the law more predictable. If the judiciary was purged of all non-German elements and rendered ethnically homogenous, then they would all reach the same conclusion on the ‘meaning’ of a particular norm.
The thing is that this wouldn’t render the law determinate. Brian Leiter distinguishes between two different types of indeterminacy, causal and rational indeterminacy:
‘The Realists famously argued that the law was “indeterminate”. By this, they meant two things: first that the law was rationally determinate, in the sense that the available class of legal reasons did not justify a unique decision … but second, that the law was also causally or explanatorily indeterminate, in the sense that legal reasons did not suffice to explain why judges decided as they did.’
What this means – of course – is that a predictable legal system is perfectly capable of being indeterminate. It will not be predictable upon the basis of the law but provided one knows what to look at the law could be predictable. Thus even if ‘[l]egal categories are simply “empty vessels” filled by acts of power that force meaning into them’ provided one can make an analysis of ‘power’ one can predict the law in some way.
Of course, as Leiter notes this entails a certain positivistic view as to what constitutes a ‘legal’ source. Thus someone arguing that Schmitt was able to introduce some kind of determinacy into his legal theory might say that the ‘ethnic spirit’ constitutes a legitimate legal source, and therefore the law is not causally indeterminate, furthermore, one might then say that by introducing a racially homogenous judiciary the law is no longer rationally indeterminate, insofar as these ‘legal’ reasons can now justify a unique result.
However, one should briefly note the words of Martii Koskenniemi as regards indeterminacy:
[T]his [the indeterminacy thesis] is not a semantic thesis about the linguistic vagueness of norms. Some rules are clearer than other rules. The indeterminacy thesis deals with relationships between rules and exceptions, counter-rules and the reasons for rules, and shows that even a valid, clear rule may be inapplicable due to the need to apply a narrow exception or standard so as to realize the purpose of the rule. Because rules are no more important than then purposes for which they are enacted, and because there is disagreement about those purposes (as rules always come about through legislative compromise over ‘conflicting considerations’). It is always possible to set aside a rule. Thus, all law (and not just semantically unclear law) is infected by indeterminacy. There is, in this sense, no middle-of-the-road solution at all: even one that initially seems such, is an occasionalist reliance on a momentarily hegemonic solution.
What is important to note here is the notion of a ‘momentarily hegemonic solution’, Schmitt’s theoretical analysis proposes a solution that is clearly based on a momentary hegemonic solution. Determinacy and meaning are ‘imposed’ from the ‘outside’. Scheuerman himself notes that Schmitt’s solution was ultimately ineffective and in fact ‘consistency was guaranteed, first and foremost, by institutional and political mechanisms’. What seems puzzling about this is that Scheuerman is contrasting the purging of the judiciary with ‘political mechanisms’. Yet surely the purging of a judicial caste is the quintessential political act. What I think Scheuerman is trying to say is that the hegemony of meaning is guaranteed through a continual imposition of political mechanisms. Yet this is not unique to Nazi Germany, all societies have some way in which ‘politics’ are able to determine legal results.
The difference is in that most societies these politics are contestable and different classes are able to, in some way have an effect on the legal process. Nazi Germany is a particular case, and it’s something I want to look into more – namely the relationship between monopoly capitalism, Nazism and class struggle. One day I intend to write more on this, as this is the point at which law, fades into pure politics and administration. So one day y’all are going to hear an invocation of Adorno, Freud, Palme-Dutt and Gramsci on fascism and I will attempt to relate it back to the legal form.
At the end of his piece Scheuerman tells us that ‘challenge’ that Schmitt lays down for radical indeterminacy:
At the very least, it seems incumbent on some contemporary radical jurists to do a better job explaining why their embrace of the radical indeterminacy thesis need not succumb to the ills so evident in Schmitt’s National Socialist writings. The case of Schmitt clearly contradicts the dogmatic assumption shared by some jurists today “that liberating those who wield legal power from the ‘mistaken’ belief that legal doctrine constrains their actions will have a progressive effect.”
Scheuerman, quotes Larry Solum here, and I think they’re a both a bit off base. Firstly, I think it’s a very small minority of jurists who believe that a belief in legal indeterminacy will have a necessarily positive effect. In many respects I’d say the opposite is true, knowledge that ‘legal doctrine’ is merely a vessel can be disastrous. One merely has to observe some of the decisions of class conscious members of the English judiciary to see that once politics is explicitly let in it can be a bad thing. This being said surely what the indeterminacy thesis posits is that knowledge of the law not being determinate will have very little effect on legal decisions. For even if one acknowledges that the a unique result is not capable of being achieved through the available legal reasons one nonetheless needs a legal ‘ladder’ with which to reach a particular result. Thus even if one was aware of the lack of binding legal reasons one couldn’t ignore the law altogether. Furthermore, even if one does recognise law is politics (in a certain sense) it does not follow that its progressive, that depends on one’s view of politics (and I’m pretty sure most ‘critical’ legal theorists do not see politics as automatically progressive).
One ought also to recognise that post-liberalism can take many different forms. I personally would vastly prefer liberal-legalism to Nazism. But post-liberalism need not necessarily be Fascistic, and post-liberal social regulation need not be legal in form.