Carl Schmitt’s Political Romanticism and the Foundations of Law

Abstract

Carl Schmitt’s critique of political romanticism is neglected in comparison with his other interventions from the early Weimar period, yet its analysis of the metaphysical foundations of liberalism has important implications for his legal thought. This paper examines the significance of Schmitt’s account of political romanticism from a jurisprudential perspective. It sets out from the question whether – as is often asserted or intimated – Schmitt’s own thought in the Weimar period represents a decisionistic variant of political romanticism. I contend that, while partly justified, this allegation does not take one to the centre of either political romanticism or the motivations for Schmitt’s anti-liberal jurisprudence. In order to do justice to both themes, it is necessary to reflect on the reasons for Schmitt’s inability to find a heteronomous, divine or otherwise, source of legitimation for law. Section 1 outlines the central strands of Schmitt’s polemic against political romanticism. Section 2 applies this analysis to the concept of constituent power with a view to untangling the strands of political romanticism in Schmitt’s conceptualisation of sovereignty. Section 3 then considers the extent to which Schmitt’s later appeal to ‘concrete order thinking’ (konkrete Ordnungsdenken) is capable of providing a more adequate normative foundation for legitimate legal order.