Carl Schmitt and Ossip Flechtheim at Nuremberg: A Crossroads for International Justice and Intellectual History

Abstract

Abstract Should theoretical discourse supporting state crimes be protected as free speech or prosecuted as atrocity speech? The relationship between Neo-Hobbesian Nazi collaborator Carl Schmitt and progressive Futurology founder Ossip Flechtheim provides a fascinating framework for exploring that question. In 1933, Schmitt rejected Flechtheim as a PhD student, on antisemitic grounds. Meanwhile, becoming Nazism’s “Crown Jurist,” he helped force Jewish lawyers, including Flechtheim, into exile. Post-war, Flechtheim, now on the US Nuremberg prosecution staff, arrested Schmitt. Through Flechtheim’s experience, this article explores how Schmitt’s prosecution, within a contemplated “Propaganda and Education Case” (PEC), might have determined how to treat atrocity-complicit academic propagandists. It chronicles how the PEC/Schmitt case collapsed when Flechtheim’s investigation was curtailed due to resource constraints, equivocal precedent, and prosecutor Robert Kempner’s botched interrogations. Nonetheless, Flechtheim contributed to the Ministries Trial conviction of propagandist Otto Dietrich. The article concludes by juxtaposing that case with Schmitt’s near-prosecution to contemplate norms for charging theorists laying needed groundwork for atrocity, via sufficiently proximate speech, even absent direct incitement. Such an international justice future would mirror immediate post-Cold War intellectual developments, which vindicated Flechtheim’s vision, not Schmitt’s. Exploring this topic is timely, as Russian academic discourse has enabled/fueled Ukraine’s invasion and related atrocities.