Carl Schmitt: Law as Politics, Ideology and Strategic Myth (Nomikoi: Critical Legal Thinkers)

There continues to be a remarkable revival in academic interest in Carl Schmitt's thought within politics and social theory but this is the first book to address his thought from an explicitly legal theoretical perspective. Transcending the prevailing one-sided and purely historical focus on Schmitt’s significance for debates that took place in the Weimar Republic 1919-1933, this book addresses the actual and potential significance of Schmitt's thought for controversies within contemporary Anglo-American legal theory that have emerged during the past three decades. These include: the critique of liberal forms of legal positivism; the relative ‘indeterminacy’ of legal doctrine and the need for an explicitly interpretative approach to its range of meanings, their scope and policy rationale; the centrality of discretion and judicial law-making within the legal process; the important role played by ideological prejudices and assumptions in legal reasoning; the reinterpretation of law as a form of strategically disguised politics; the legal theoretical critique of universalistic approaches to "human" rights and associated liberal-cosmopolitan 'ideologies of humanity,' including the rhetoric of 'humanitarian intervention'; and the limitations of liberal constitutionalism and liberalism more generally as an approach to law. In Carl Schmitt: Law as Politics, Ideology and Strategic Myth, the author provides an overview and assessment of Schmitt's thought, as well as a consideration of its relevance for contemporary legal thought and debates. Cover 1 Carl Schmitt 4 Copyright 5 Contents 6 Preface 10 Introduction Up against Carl Schmitt 12 Part I: Law as ideology and politics 18 Chapter 1. An afterlife for Carl Schmitt? 20 Contemporary relevance? 29 Chapter 2. On politics, law and ideology 39 The politics of law and the law of politics 40 Law as an ideological practice involving depoliticisation 45 Liberal ideologies of legality 47 Difficulties and contradictions with liberal ideologies 62 An unduly narrow definition of law 62 Exaggerating the determinacy of legal doctrine 67 Devaluing discretion 72 Interpretative naïveté? 73 Misinterpreting the judicial role? 75 The politics of ideological depoliticisation 82 The contradictions of liberal-positivism? 87 Liberal cosmopolitan ideologies 89 Ideologies of humanity 93 Law as authority, interpretation and power 103 Conclusion 130 PART II: Schmitt on the role and analysis of myths and counter-myths 132 Introduction 132 Chapter 3: Mobilising direct political action: Sorel, myths and counter-myths 139 Chapter 4: Myths of parliamentarism 144 Chapter 5: Leviathan: a political myth misfired? 151 Hobbes as a case study of the importance of studying political myth-making 152 Correcting Hobbes: contrasting meanings of leviathan 156 The possibility of myth misfiring 157 Leviathan as counterproductive? 159 The slaying of leviathan 166 A fatal concession to liberal individualism? 168 Liberalism’s illiberal outcomes 175 Leviathan’s instructive failure? 180 Conclusion to Hobbes 182 Chapter 6: Hamlet as an instructive prototype of a political myth? 184 Hamlet as a corrective to leviathan? 184 Studying Hamlet’s implications: themes and questions 185 Myth and other cultural forms 187 Myth as an ethos of ethnicity? 188 Staging Hamlet’s off-stage history? 190 A Hamlet–James couplet? 194 Schism as religion 195 Hamlet signifying sovereignty in crisis? 196 Staging political theatre 197 Deciding against indecision 201 Politicising Hamlet’s depoliticisation? 202 Hamlet’s audience as co-authors? 208 Chapter 7: Political myths underpinning democracy 217 Myths of national identity 236 Dangerous political myths: Marxism, Fascism and Liberalism 247 Taking stock of general lessons: a Schmittian concept of the mythical? 259 Conclusion 275 Bibliography 290 Index 301 Law as Politics, Ideology and Strategic Myth Introduction : Up Against Carl Schmitt -- An Afterlife For Carl Schmitt? -- On Politics, Law And Ideology -- Mobilising Direct Political Action: Sorel, Myths And Counter-myths -- Myths Of Parliamentarism -- Leviathan : A Political Myth Misfired? -- Hamlet As An Instructive Prototype Of A Political Myth? -- Political Myths Underpinning Democracy. Michael G. Salter. Includes Bibliographical References (p. [279]-289) And Index. There has been and continues to be a remarkable revival in academic interest in Carl Schmitt's thought within politics. This book addresses his thought from an explicitly legal theoretical perspective, as it addresses the actual and potential significance of Schmitt's thought for debates within contemporary Anglo-American legal theory.