Personal enemies, conceptual friends. Karl Loewenstein and Carl Schmitt on self-destructive legalism

Abstract

ABSTRACT The paper aims to discuss the rarely acknowledged conceptual affinities between legal-political thinking of Carl Schmitt and Karl Loewenstein. It may sound surprising given their different political leanings, as well as the concept of democracy inherent in the legal and political thought of the two thinkers, especially in their constitutional theories. For Schmitt democracy signifies identity between the rulers and the ruled, while for Loewenstein it is the very will of the people that has to be checked and tamed through the institution of representation. But when it comes to the defence of the existing political regime against the assault of its enemies and the understanding of the reasons of Weimar Republic’s failure, they strongly agree. Schmitt identified and elaborated on the possibility of the Weimar Republic’s enemies entering through the gate of legality and shutting its doors behind them. Loewenstein clearly sides with Schmitt that defending the constitution means defending its core or substance. The concept of militant democracy bears striking similarities with the conceptual world of Carl Schmitt: critique of the legalistic blindness, rejection of neutrality in public life, friend-enemy distinctions, legitimacy versus legality and the state of emergency.