Carl Schmitt has been classified in many different ways, but certainly never as a libertarian. To the contrary, Schmitt strongly supported a strong state and for a few years was a leading light among Nazi jurists, though he fell out of favor with the Nazi Party after 1936. In his great work Constitutional Theory (1928), he writes critically of the bourgeois state based on the rule of law (Rechtsstaat), and the great classical liberal Benjamin Constant is a principal target. In his case against this type of state, Schmitt raises an argument that closely resembles one that Murray Rothbard raised, though with very different ends in mind; and it is this argument I’d like to discuss in this week’s column.
Schmitt says this:
The basic rights in the actual sense are essentially rights of the free individual person. They are rights, in other words, that the individual person has against the state…. Part of this concept of rights, however, is the understanding that the individual by virtue of his own “natural” right, comes into opposition to the state and may not eliminate entirely the idea of individual rights that are prior to and above the state, so long as one can speak at all of basic rights…. Basic human rights in the actual sense are only the liberal human rights of the individual person…. Among these rights are freedom of conscience, personal freedom (in particular freedom from arbitrary arrest), inviolability of living quarters, privacy of the mail, and private property. (Constitutional Theory [Durham, NC: Duke University press, 2008], p. 203, emphasis in original)
Schmitt proceeds to argue in this way. So long as a state exists, rights cannot be fully absolute. If they were, there would be no way of dealing with emergencies. Suppose the whole community is threatened by outside invasion. If we insist on absolute preservation of property rights and individual liberty, there is no way of coping with emergencies. And even in the absence of an emergency, the state still taxes people to provide for defense and justice. Even a limited state still limits rights.
Rothbard agrees with Schmitt that the state is inconsistent with absolute individual rights. In The Ethics of Liberty, he says:
But, above all, the crucial monopoly is the State’s control of the use of violence: of the police and armed services, and of the courts—the locus of ultimate decision-making power in disputes over crimes and contracts. Control of the police and the army is particularly important in enforcing and assuring all of the State’s other powers, including the all-important power to extract its revenue by coercion. For there is one crucially important power inherent in the nature of the State apparatus. All other persons and groups in society (except for acknowledged and sporadic criminals such as thieves and bank robbers) obtain their income voluntarily: either by selling goods and services to the consuming public, or by voluntary gift (e.g., membership in a club or association, bequest, or inheritance). Only the State obtains its revenue by coercion, by threatening dire penalties should the income not be forthcoming. That coercion is known as “taxation” although in less regularized epochs it was often known as “tribute.” Taxation is theft, purely and simply, even though it is theft on a grand and colossal scale which no acknowledged criminals could hope to match. It is a compulsory seizure of the property of the State’s inhabitants, or subjects.
But what of Schmitt’s point that in an emergency, survival may require that rights be violated and, if so, they cannot be absolute? Rothbard’s response is that this does not affect the structure of rights. If someone violates a right to ensure his survival, this leaves the right in place:
It may well be objected to our theory as follows: that a theory of property rights or even of self-ownership is derivable from the conditions by which man survives and flourishes in this world, and that therefore in this kind of extreme situation, where a man is faced with the choice of either saving himself or violating the property rights of the lifeboat owner (or, in the above example, of the “homesteader” in the boat), it is then ridiculous to expect him to surrender his life on behalf of the abstract principle of property rights. Because of this kind of consideration, many libertarians who otherwise believe in property rights gravely weaken them on behalf of the “contextualist” contention that, given a choice between his life and aggressing against someone else’s property or even life, it is moral for him to commit the aggression and that therefore in such a situation, these property rights cease to exist. The error here on the part of the “contextualist” libertarians is to confuse the question of the moral course of action for the person in such a tragic situation with the totally separate question of whether or not his seizing of lifeboat or plank space by force constitutes an invasion of someone else’s property right. For we are not, in constructing a theory of liberty and property, i.e., a “political” ethic, concerned with all personal moral principles. We are not herewith concerned whether it is moral or immoral for someone to lie, to be a good person, to develop his faculties, or be kind or mean to his neighbors. We are concerned, in this sort of discussion, solely with such “political ethical” questions as the proper role of violence, the sphere of rights, or the definitions of criminality and aggression. Whether or not it is moral or immoral for “Smith”—the fellow excluded by the owner from the plank or the lifeboat—to force someone else out of the lifeboat, or whether he should die heroically instead, is not our concern, and not the proper concern of a theory of political ethic.
Schmitt would agree. Like Rothbard, he doesn’t regard an emergency suspension of a right as the elimination of that right. What, then, is the point of difference between him and Rothbard? It is that for Schmitt, there must be a state with a leader, expressing the will of a united homogeneous people, who decides whether such an emergency exists. Rothbard didn’t think so. I shall leave it to readers to judge the question for themselves; but it’s worth bearing in mind that the notion that society needs a “leader” (fűhrer) did not work out very well for Schmitt’s country or for him personally.