Existential Openness in Law

The purpose of this work is to argue that there are hermeneutical traits in Carl Schmitt’s early legal thought. The fundamental premise on which we will base our hypothesis is that Schmitt recognizes with astounding clarity that legal statutes need a human being for them to emerge on practical reality. More specifically, we will see that Schmitt identifies that in the process of interpreting and applying legal texts something quite marvelous occurs: the positive legal texts emerge with human characteristics. This realization leads him to undertake an ardu¬ous task: to elucidate the nature and characteristics of human under¬standing. That is to say, the consideration of the human being as an active agent who shapes the abstract meaning of normative texts leads him to try to elucidate the particular existential characteristics that this agent (the human being) inevitably projects to written law in this pro¬cess. At the same time, we will see that the recognition of the interven¬tion of human subjectivity in the emergence of legal statutes brings to Schmitt’s awareness the dangers of relativism in the legal phenomena. That is why, from the beginning of his academic production, he focuses his attention on the formulation of a criterion which ensures, within the limits of what is humanly possible, that legal decisions are correct (and not arbitrary).

Throughout this text we conceptualize the “adherence” or “acqui¬sition” of human characteristics by legal statutes as humanization of law². The logic behind the idea of the “humanization of law” is that the entity that interprets and applies law (a concrete human being) brings himself and all of his existential characteristics to said process of “coming to life” of legal statutes. Our argument is that Schmitt’s early legal thought can be considered as hermeneutic because he argues, as do existential hermeneutics, that human understanding is of interpreta¬tive and projective nature. Even though we will deepen into this matter later, we find it prudent to mention at this point that the core ideas behind existential hermeneutics can be summarized as follows: when a human being approaches reality, it does not do it as an “empty ves¬sel” that is ready to receive that which is presented to its senses in an “unpolluted” manner. We already possess a series of concepts and structures that allow us to elucidate what is presented to our intuition so that those same concepts set a horizon (a paradigm) from which understanding operates. As Wrathall explains, “to understand is to be in the world in such way that everything is projected upon, that is, makes sense in terms of particular possibilities”³. Differently put, with the concepts that we already possess in our mind (and that have been acquired and transmitted by humanity throughout history) we interpret the world and its phenomena. Therefore, understanding the world is at the same time receptive (we need something to present itself to our intuition) and productive (we give meaning to the world from a set of concepts that we already possess)⁴. The purpose of the first chapter of this text, which is devoted to Heidegger’s and Gadamer’s thought, is to clarify the “conceptual measuring stick” to be used later to verify whether Schmitt’s legal thought can be considered as existentially her¬meneutical or not.

Why should we consider Schmitt’s legal philosophy as hermeneuti¬cal? Mainly because the recognition of the intervention of human exis¬tential characteristics in the emergence of legal statutes leads Schmitt to demand from legal theory the recognition of a certain openness towards the concrete aspects of existence. This core aspect of Schmitt’s early legal philosophy allows us to include him in the hermeneutical lineage because

the defining trait of hermeneutics is precisely not any kind of relativism, his¬toricism, subjectivism or idealism, but rather an incompleteness theorem. The conditions of possibility of making sense of our experience (in whatever rigor¬ous vocabulary) are simply such that we cannot achieve a total overview. Reality cannot be an object of even the best theoretical articulation of how it appears to us. Rather, different scientific theories provide us with fallible glimpses of their specific domain of objects, which can be transferred into more comprehensive theories without ever leading to a final theory⁵.

As we will thoroughly justify throughout this book, this openness (or incompleteness) is a defining trait of Schmitt’s concept of law.

The legitimacy of our hypothesis, that Schmitt’s early legal thought can be considered as hermeneutical, is reinforced by the fact that a contemporary hermeneutic philosopher, Hans-Georg Gadamer, argues something quite similar when analyzing the complexities of the appli¬cation of legal statutes. The path that Gadamer clears in the forest of the mysteries of human nature is more or less the following: he argues that human understanding, which is temporally determined, is character¬ized by a constant tension between principles, concepts, and prejudices that are bestowed upon us by tradition (and thus come from what we commonly call “the past”) and a new situation that demands bringing those same principles, concepts, and prejudices to light. The tension is generated because the process of human understanding does not con¬sist in a mere subsumption of the categories inherited by tradition to the new and exceptional cases that everyday life puts before us. It is rather characterized by reciprocal feedback between the new and old. Differ¬ently put, human understanding is somewhat creative. That which in a certain sense is “given” to us by tradition acquires a new meaning and perspective in light of the new and exceptional situations to which it is confronted.

For Gadamer, then, the task of administering justice entrusted to judges does not consist of a mechanical process, one characterized by the uniform application of legal norms and principles to concrete cases. If it were that easy, we could entrust it to computers with artificial intelligence (which, no doubt, are much more efficient and accurate than humans in the task of matching rules to cases). On the contrary, the task of trying to bring justice into practical reality is far more complex. First, the judge is typically confronted with two poles: one normative, which corresponds to written statutes, and the other concrete – the specific cases that demand a legal solution. Also, written laws rarely arise at the same time that the particular cases to which they are to be applied. They are usually preterit texts which, though they find their immediate origin in a process of nor-mative production regulated by the state since modern times, are trace¬able to classical legal institutions (such as those of Roman law). Judges, then, find themselves in the need to mediate two poles: a normative one that comes “loaded” with tradition, and another concrete one that places before the judge a new and exceptional case that requires justice. Law, then, like human understanding, Gadamer tells us, is characterized by a tension between two poles that requires a synthesis for a “solution” to emerge.

In this work we will argue that Schmitt follows a similar path to that of Gadamer. We shall present, following authors such as Herrero, Herrera, Rash, and Ojakangas, a reading of the early legal works of the German jurist (1912–1922) that allows us to identify in his juridical and political thematization of law a portrayal of human understanding as hermeneutic. The particular manner through which we intend to justify this assertion is the following:

1. a. Schmitt begins his academic career criticizing the scientistic “horizon of meaning”⁶ from which law has been interpreted from modernity. That is, he sets out on his journey by ques¬tioning the theoretical and practical basis on which the way of understanding that is usually called “Legal Positivism” is constructed.
2. b. After elucidating the theoretical and practical limitations of the scientistic approach to understanding law, Schmitt under¬takes an even more challenging task: to propose a new per¬spective, a more suitable horizon of meaning, from which to comprehend this phenomenon.
3. c. This titanic task leads Schmitt down a winding and unexpected path: towards the elucidation of human understanding. This is due to the following reasons: Schmitt realizes that legal pos-itivism, in its eagerness for objectivity and purity, eliminates from the equation a fundamental element for law: the human being. Schmitt tells us that this is naive, as legal statutes can¬not be generated, interpreted, or applied without the interven¬tion of a concrete human being. In other words, the presence of an agent of legal praxis (a human being who interprets and applies the law) is a requisite, a condition of possibility, for the existence of law. Such a proposal inevitably prompts Schmitt to question the nature and characteristics of the agent who connects legal statutes with the specific and contingent cases that require a just solution. Put differently, Schmitt introduces the human being into the “juridical equation”. This, rather than simplifying matters, further complicates the issue, as it now becomes crucial to elucidate the manner under which the understanding of what we call “humanity” operates.
4. d. Therefore, almost as a syllogistic conclusion, we can state that the thematization of law leads Schmitt first to elucidate human nature and subsequently to propose a theory of human under-standing with general implications.

Having already clarified the central theme of this manuscript (our hypothesis), as well as the specification of the conditions under which it can be considered plausible, it is appropriate to present the road map that we will follow to go from where we are, the mere enunciation of a proposition in an assertive manner, to our destination, which is none other than the speculative legitimization of said assertion. In the remainder of this brief introduction, we will explain the raison d’être of each of the chapters that make up the body of this work. This is not only because it is something that is usually done in academic presenta¬tions endowed with a certain seriousness but also because the treatment of such diverse and complex topics and authors (Heidegger, Gadamer and Schmitt) makes a previous explanation essential to clarify that this work is not a haphazard compilation akin to a dish made from assorted leftovers found in a refrigerator at month’s end (something that, unfor¬tunately, is not uncommon in academic literature), but rather an exotic and varied, but consciously articulated, menu.

§ 1. From human understanding to law: Heidegger and Gadamer

The objective of the first chapter is to elucidate the interpretative frame¬work (horizon of meaning) underpinning our reading of Schmitt’s work. Throughout this study you will encounter a range of concepts not originally present in Carl Schmitt’s thought. Therefore, it is both natural and legitimate to question their origin and meaning. This initial aims to preemptively address such inquiries, providing answers before the questions are explicitly raised.

However, the reader should be aware that the authorial biases pre¬sented and explained in the first part of this manuscript are not without justification. As illustrated by the works of Ojakangas and Herrera, there appears to be a thematic link connecting the ideas of Heidegger, Gadamer, and Schmitt. These thinkers collectively seem to explore a ‘magic formula’ that reconciles the abstract nature of concepts with the tangible aspects of reality, and the unique attributes of the subject tasked with resolving this dichotomy: the human being. In this context, as argued in another work dedicated exclusively to this topic⁷, interpret¬ing these authors through a lens mutually enriched by their ideas does not obscure their philosophies. Instead, it sheds light on them, reveal¬ing illuminating insights.

In short, the path from human understanding to law, as explored in the first section of this work, serves a twofold purpose: to demonstrate that a thorough examination of the nature and characteristics of human understanding can lead to acknowledge that legal understanding is paradigmatic with respect to the manner in which practical reason operates (1), as well as to explicitly outline the interpretive framework (horizon of meaning) from which we propose a hermeneutic reading of Schmitt’s early legal texts (2).

§ 2. From law to human understanding: Carl Schmitt’s approach

The second chapter forms the epicenter of this work, delving into Carl Schmitt’s legal thought as expressed in his early works (1912–1922). As previously mentioned, our reading of these texts posits that Schmitt’s focus on the juridical phenomenon drives his exploration into the nature and characteristics of human understanding. Specifically, we argue that Schmitt undertakes two primary tasks: first, he identifies the shortcom¬ings of the prevailing understanding of law at the turn of the twenti¬eth century, namely, legal positivism. Following this, he exposes the theoretical and practical limitations of this perspective. Subsequently, Schmitt endeavors to establish a more suitable approach to law. This effort leads him, as we will detail, to reintegrate a previously over¬looked element in the “juridical puzzle”: the human being.

Schmitt’s task can be understood as twofold, involving both a destructive and a constructive aspect. In the second and third chap¬ters, we will address both of these dimensions accordingly. Firstly, we will present how Schmitt, from the onset of his academic career, is committed to exposing the theoretical and practical weaknesses underpinning legal positivism. While references to other works by the Plettenberg jurist will be made, this chapter primarily focuses on a thorough analysis of Schmitt’s first two legal writings: Statute and Judgment and The Value of the State and the Significance of the Indi¬vidual. This focus is justified by the fact that in these works, Schmitt primarily “attacks” legal positivism in strictly juridical terms. Unlike his later works like Political Theology and Dictatorship, which address the shortcomings of a mechanistic law understanding from a broader philosophical perspective, his 1912 and 1914 works are more confined to the legal domain. In Statute and Judgment, Schmitt discusses the inability of legal positivism to provide a criterion ensuring correct legal decisions. Meanwhile, in The Value of the State and the Significance of the Individual, he critiques the lack of solid theoretical justification for the modern state and law, analyzing the weaknesses of legal positivism from a political law perspective. Additionally, considering the limited secondary literature on these early works, we find it pertinent to con¬duct a detailed analysis of them, contributing to the ever-expanding corpus of literature on the German philosopher and jurist.