Law & Society Blog

How did I miss Scott Horton’s excellent post on the connection between John Yoo’s torture memorandum and the political philosophy of Carl Schmitt, over at Balkinization? Horton makes a very important point about the kinship between Schmitt’s Begriff des Politischen, current U.S. political thought, and the rise of friend/foe rhetoric. It is important to remember that Schmitt, in his political philosophy, does not simply regard the friend/foe dichotomy as important; rather the dichotomy is central and it defines politics: Not approaching politics from the perspective of separating friend from foe is weakness to Schmitt.

As Scott Horton points out in an interesting response to some comments, Schmitt is a particularly puzzling figure because of his strong belief in law:

I do not mean to suggest here that I believe that Carl Schmitt would adopt the positions taken by John Yoo. Schmitt was far too serious a legal scholar for that. His positions on international humanitarian law are far too nuanced, and, as one commentator notes, he wrote very persuasively about the role of partisans and the legal regime under which they were to be treated.

That brings up the question of the role of international law. Can international law matter, where the weak are facing the strong? Should the strong allow themselves to be hamstrung by law? Hanno Kaiser argues that observing the rule of law is conditio sine qua non for the legitimate exercise of power (in his discussion of a recent Blackburn lecture) . Add Schmitt’s friend/foe dichotomy to the mix, and the issue is thrown into sharp relief: Is the rule of law, is treating your foe as you would treat your friend, weakness?

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