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AMERICAN EXCEPTIONALISM.

CARL SCHMITT AND THE NEOCONSERVATIVE JUSTIFICATION FOR THE SOVEREIGNTY OF POLITICS

BY STÅLE R. S. FINKE

Professor of Philosophy, University of Trondheim

Imagining oneself as a member of the society of world citizens, obligated according to the rights 

of state citizens is the highest idea of his destination Man can entertain. The thought cannot 

be entertained without enthusiasm.

Immanuel Kant 

No one in the Bush administration can be accused of being too careful in their presentation of 
and enthusiasm for their own foreign policy. The distance between the American and the 
European view, particularly with regard to their perception of the consequences of globalization 
to relations between states, is not a case of superficial disagreement about how to fight terror, how 
to relate to states like Iraq or how to solve the conflict between Palestinians and Israelis. The 
so-called hawks or neo-Conservative have prepared the ideological ground for 
American exceptionalism and a solitary approach to world politics. What has been labelled Project 
for a New American Century is a rather coherent conservative political vision, containing quite 
detailed accounts of future aims of foreign politics. Along with the political scientist Paul Wolfowitz, 
there are familiar names like Donald Rumsfeld, Bill Kristol, Robert Kagan and Richard Perle. They 
have in common a renewed interest in political thinking of a kind which runs counter to the 
typical European models of justification of deliberative democracy and universal rights in the 
tradition after Immanuel Kant. They focus instead on a particular reception of early modern 
political philosophy in Niccolo Machiavelli and Thomas Hobbes. Robert Kagan states as follows: 

It is time to stop pretending Europeans and Americans have a common world view, or even inhabit the same world… Europe is moving away from the focus on power towards a self-sufficient world of laws, trans-national negotiations and cooperation. They are entering a post-historical paradise of peace and fertility, a realization of Kant’s ‘perpetual peace’. The US, however, remains anchored in history and exercises power in an anarchist, Hobbesian world where international rules and jurisdictions cannot be trusted, and where security and defence of a liberal order still depends on the possession and execution of military force.^[i] 
 

One cannot help noticing Kagan’s irony in his caricature of European idealism. Kantian political
thinking is powerless, as it tries to extinguish all historical and real political circumstances in an illusory international state of peace between people and states, while the Americans are conscious of the historical moment in which one must act. The political field must renew itself through exceptional acts of historical import and significance, not through feeble agreements, institutionalization of rights or obligations mutually recognized which only weaken the political power to act. The state must reserve for itself the right to exceptionality. 

However, the political ideas of American neo-conservatism are not entirely new. They are based on a particular tradition in American philosophy stemming from Leo Strauss. Strauss emigrated from Germany to the US before the Second World War, established himself as a philosopher and gradually gained an almost mythical standing in political circles.^[ii] One of the more well known Straussians, whose work has also been translated into Norwegian, is Allan Bloom. Paul Wolfowitz, who was central in shaping the US’s new security strategy, is a student of Bloom, and the books and articles written by Wolfowitz and others in the neoconservative circle are crowded with acknowledgements and expressions of gratitude both to Bloom and to Strauss. The fact that Leo Strauss himself had close relations to the German philosopher of right Carl Schmitt is perhaps lesser known. The latter was among the most prominent critics of the social democrat aspirations of the Weimar Republic and has been named the crown jurist of the Third Reich. His essays, with their extreme formulations and sharp analyses, are still fascinating to read. 

In what follows, I shall give an account of Schmitt as a background figure to the neoconservative political ideas and rhetoric. Since the political thinking of Carl Schmitt cannot be assumed to be known in today’s political culture, we have to make room for a somewhat thorough presentation of his concerns. Hence in the three first paragraphs, I shall portray Carl Schmitt’s intellectual horizon as a conservative culture critic and political thinker. In the following two paragraphs, I shall elaborate on the relation between a Schmittian understanding of the political and the American neo-conservatism. In a concluding chapter, I shall remind the reader of the alternative understanding of philosophical modernism of our obligations towards cultural and political modernity in the tradition from Kant to Habermas.

Modernity – an exhausted project?

In the book Der Begriff des Politischen (1932)^[iii]  Schmitt defines «the political» as 
distinguishing between friend and enemy: «The specific political difference – accounting for political 
acts and motives – is the difference between friend and enemy».^[iv] With sentences like this 
one, Schmitt attempts to convey the impression of the precarious nature of the situation political 
beings are faced with. But according to Schmitt, we have no direct access to the political as such:
As Heidegger poses the question of being anew in Sein und Zeit (1927)^[v], Schmitt tries to pose
the question of political being with equal pathos: «Our concern here is not fiction and normativity, but 
the reality of being [Sic!] (die Seinsmäßige Wirklichkeit) and the real possibility of the difference
in question».^[vi] 
But how does one delimit «the political» within a culture of modernity? And how does one justify 
the sovereignty of politics as a kind of exceptionality? His answer to these questions displays 
Schmitt’s position as that of a conservative critic of modernity. I shall sum up Schmitt’s concerns in 
the following way: Starting from (a) a conservative critique of modernity, he prepares the ground for 
(b)a critique of liberalism and a reformulation of the relation between the political and the natural 
condition as described by Hobbes.   This move allows Schmitt to (c) undermine the liberal justification 
of politics as grounded in moral-practical autonomy, and rather present the political as sovereign in 
an existential sense, i.e. as a force beyond the principles of a rights-based democracy.^[vii] As 
we shall see, these three aspects of Schmitt’s political thinking can be recognized in the
ideological platform of the neo-Conservatives. 
(a) Cultural modernity can be described as a progressive process of differentiation where 
scientific institutions, morality, law and art are separated, forming autonomous spheres of 
value.^[viii] However, to Schmitt, the obligations and institutions of the Kantian culture of 
modernity entails a significant impoverishment of the political sphere. The political can only 
gain autonomy at the cost of neutralization: «In an age of economy where the state no longer claims
to know or to lead economic affairs it must declare itself neutral with regard to political questions 
and decisions. Thus it denounces its claim to rulership».^[ix] When political affairs are 
increasingly arranged in accordance with formal rules and procedures within a constitutional 
democracy and bureaucracy, the political sphere looses its substantial meaning – its unity is 
threatened by disintegration, what Weber termed «a god-strife between different values 
and attitudes».^[x] 
In Römischer Katholizismus und Politischer Form (1923)^[xi] Schmitt uses the Weberian analysis
to found a conservative cultural critique which expresses a strong discontent with mass 
culture’s tendencies towards dissolution. On the one hand, the division between state and 
society creates a condition where the political is instrumentalized, becoming subject to 
strategic compromises between various interests and organizations. The technical-economical 
thinking is common to both capital interests and the left in their battle for the state. The social 
democrat policy of intervention is only an addition to a liberal, parliamentary principle, according 
to which the citizens possess certain rights towards the state.  On the other hand, the aesthetication
of experience forced by the culture of the market – what Schmitt terms «aesthetic consumption»^[xii]– a general depoliticization of the state. The state looses its political foundation while the citizens 
are removed from the political in the arbitrary whirligig of the sphere of consumption, where all things 
are equivalent and exchangeable, and where everything can be given an aesthetic and affective
value: «In modern economics highly rational production is matched by completely irrational 
consumption. Any demand is served by a marvellously rational mechanism – always with the 
same gravity and precision, whether it is a demand for silk blouses or for poisonous gasses».^[xiii] 
Thus the Weberian analysis of cultural modernity can be sharpened, and made to take a 
more conservative course: The depolitized liberal state, lacking a fundamentally political shape, is 
left over to the roulette of interests and the meaningless enjoyment of the citizens. The response to 
this situation, to Schmitt, cannot be a radicalization of the political autonomy of the citizens through
a widening and strengthening of democratic rights and liberties, since this autonomy is the root of 
the problem. The levelling of all differences contained in Enlightenment’s idea of the political equality 
of all is precisely the source of the impoverishment of the state’s identity and prepares the ground for
a strategic battle of interest between various organizations and arbitrary political movements.
Cultural and political modernity cannot provide its own foundation, and its historical part is exhausted
in a thorough depolitization of the state to the benefit of arbitrary power. In Schmitt’s 
interpretation, Mozart’s Die Zauberflute is an historical document of how the abstract idea of 
humanity must necessarily express itself through the means of force, secrecy and privileged execution
of power.^[xiv] In the book Die Geistesgeschichtliche Lage des heutigen Parlamentarismus 
(1923), Schmitt concludes that the concept of «democracy» must be set apart from a liberal model:
«A democratic state demonstrates its political power by knowing how to keep back the strange 
and dissimilar which poses a threat to its homogeneity … Similarity is only of interest and of value in 
so far as it is substantial, and therefore entails a risk of dissimilarity».^[xv] 
As against all kinds of instrumentalized politics, Schmitt envisages a different and new form of 
political absolutism – politics must regain its sovereignty vis-à-vis other spheres of cultural value in 
order to provide an answer to the challenges of the modern political condition, i.e. the threat 
of a revolution, and also to give an answer to the general loss of meaning which is a consequence 
of a modern mass society in which social and historical reality has changed into an 
aesthetic consumption devoted to the moment. As we shall see, American neo-Conservatives 
remain bound to an understanding of the political the intellectual roots of which are to be found in
a cultural critique à la Schmitt.

 The myth of «the political»

(b) The concept of «the political» as understood by Schmitt is exclusively concerned with 
political sovereignty. But how can political sovereignty be interpreted as something other 
than sovereignty of the people – as expressive of what Rousseau termed the general will? How can
a sovereignty of a personalist and decisionist kind be understood as political, rather than just 
arbitrary despotism?  In the book Politische Theologie (1922) sovereignty is presented as follows:
«The sovereign is the one who settles a state of emergency (über den 
Ausnahmezustand entscheidet)».^[xvi] The state of emergency or the exceptional thus becomes 
the focus of the concept of the political and is explicitly grounded in political sovereignty.  This 
different or exceptional character of political power lies behind the understanding of the political as
a differentiation between friends and enemies. Within a liberal frame of thought, the state of 
emergency is always a permission made only in special cases in order to preserve the 
constitution. Within a liberal state in which power is divided, this exception does not enable a
one-sided politically sovereign power to decide what constitutes an exception as well as to have 
the mandate to secure the constitution. To Schmitt, on the other hand, the exception in itself implies 
a sovereignty which incapacitates the idea of the liberal constitution: «The exception is of larger 
interest than is the rule … It confirms not only the rule, but also the existence of the rule, which 
is exclusively derived from the exception. In the exception real life breaks through the shell 
of a mechanism stiffened by pure repetition».^[xvii] 
The turn towards a political existentialism is apparent here. And this foundation makes Schmitt’s 
appeal to early modern political philosophy very special. Schmitt’s relation to Hobbes was 
an ambivalent one, in so far as Hobbes revealed the modern concept of the political, while also 
covering up its radical character, and advanced a liberal model. As a founder of liberalism, 
Hobbes defends a concept of positive law, according to which the subjective rights of individuals 
should be secured from the state.^[xviii] But, to Schmitt, this is where the depolitization 
and neutralization of the state is rooted: To Hobbes, the rational obligation towards the 
sovereign involves an establishment of a state of law which also implies the singular individual’s right 
to self-preservation. A weak point in Hobbes’ model is that the citizens do not relate to the 
ever-present possibility of terror and destruction within the civilized liberal state – and hence are 
not prepared to sacrifice their lives for the prevailing political sovereignty: «The state has … 
an enormous permission: the option to go to war and hence rule over human lives openly. Jus 
belli contains such an arrangement – it entails a twofold option: demanding a preparedness to die 
and a preparedness to kill from those belonging to one’s own people, and killing people who belong
to the enemy».^[xix] This conclusion – an obvious break with Hobbes’ liberal 
premises – presumes, however, a change in the concept of the state of nature. As commented by 
Leo Strauss: «The political is a fundamental feature of human life; politics in this sense is destiny
itself; therefore man cannot escape it.^[xx] The political is no longer understood as a negation of 
the state of nature, but rather as penetrated by it. 
Schmitt’s interpretation of Hobbes thus denounces a normative conception of right (rule of law) from 
the start, in favour of a concept of the political articulating the conditions of human existence,
la condition humaine: 

War, that is fighting people’s preparedness to die … has no normative, but only an 
existential meaning, admittedly in a situation of real fight against a real enemy, not in 
relation to some ideal … There is no rational purpose, no right norm or exemplary program, 
no beautiful social ideal, no legitimacy or legality to justify the fact that people kill one 
another for its sake.^[xxi] 

The foundational character of the political lies not in the power of persuasion Hobbes ascribed to 
the state of nature through a practical-pragmatic argument. The mutual obligation of the sovereign 
and the citizen in the social agreement is replaced by a concept of the political which is contained in 
the idea of the human. In Politische Theologie any political philosophy is played out against
a fundamental stance towards the presumably evil nature of man.^[xxii] Supported by 
the contra-revolutionary Catholic figure Donoso Cortés, the dogma of original sin is given an 
original political significance as the real possibility of human evil can only be countered by a 
sovereign opposing force which establishes order ex nihilo: 

«Man’s blind reason, weakness of will and incredibly forceful desire of the flesh was to him 
[i.e. Cortés] blameworthy to such a degree that no words in the human language could 
express the total vileness of this creature … [A]ccording to his philosophy of history, the 
victory of evil is an unavoidable and self-evident fact, one which can only be prevented 
by a miracle of God.»^[xxiii] 

To Schmitt, the political can be understood as an authentic embracing of evil and chaos as a way 
of existing, through a decision to maintain oneself as a human and dangerous being. Thus it 
becomes discernible how the exceptional – and establishing a relation between friends and 
enemies – becomes the kernel of a concept of political sovereignty transcending any 
justification through social institutions or contracts: The sovereignty is tied to the unpredictability 
and spontaneity of every exceptional case – any judgment and employment of rules is evidence for
an original act which cannot itself be deduced from a rule. Rather, it is the other way around: A 
unique facticity and contingency must always be presupposed, an act which not only tests the norm, 
but invalidates it: «In the independent meaning of the decision, the subject itself has an impact on 
its meaning, regardless of the question of content. What matters to the reality of legal life is 
who decides».^[xxiv] This existentialist justification of the exceptionality of the sovereign has 
been embraced by Robert Kagan and other neo-Conservatives. The exaltation of the singular 
case contains the key to understanding the political as an existential mythos. 

Political theology of existence

(c) Schmitt’s founding of the political in the relation between man’s existential state of nature and 
the absoluteness of the sovereign seems very strained to a liberal, since Hobbes’ state of nature is
a pre-political state, or, alternatively, a pragmatic fiction representing the opposite of political life 
as seen from the inside of political life itself. But the theme is apparent: the economic-liberal culture 
of modernity implies a forgetfulness or repression of the political in its cultivation of the ideals of 
liberal freedom, subjective rights and liberties securing the independence, freedom of action 
and political autonomy of the private individuals. Schmitt’s main point is that the political cannot be 
seen as the complete opposite of the state of nature – as in the liberal tradition after Hobbes – 
it is rather a permanent possibility of chaos that can only be countered by a preservation 
and consolidation of power. From the point of view of the citizens this means that there is only 
one exclusive standard to political decisions – an authentic or an inauthentic way of being. As a 
political being one is faced with an «either-or» situation where only an embracing of the 
human possibility of political being as historically and actually received, in anticipation of man’s 
utmost possibility, death or destruction in the state of nature. 
The decisionist and personalist concept of sovereignty is thus to be understood as being 
existentially justified and delimited. But does it make sense in this context to call the sovereignty
a political one? Some affinities between Schmitt’s basic idea and that of Heidegger allows us to 
see this part of Schmitt’s approach more clearly. Heidegger, as we know, rejected the legitimacy
of modern philosophy of the subject from Descartes to Kant with reference to its repression of 
the existential question of being which should be worked out again in Sein und Zeit 
(1927).^[xxv] Schmitt, for his part, aimed to disclose the existential foundation of politics – 
as a possibility which transcends the modern idea of subjectivity and freedom. Particularly 
Heidegger’s analysis of human subjectivity’s (Dasein) original ecstasy in relation to its own 
being – the anticipation of death as a possibility – refers the subject to its real being, its given 
possibility in being-there, or Geworfenheit. 
As against this background, the existential motive in Schmitt’s political philosophy can be seen 
even more clearly: Political sovereignty is a historically concrete and monumental possibility of 
being, that of the possibility of human order and togetherness in general. The political question of 
being is directed towards an original transcendence in the political state – towards the establishment 
of a sovereignty of a personalist kind, withdrawing any kind of internal public sovereignty. In 
Politische Theologie this figure is treated explicitly in analogy to the theological conception of 
God’s simultaneous transcendence and immanent intervention in the world. The existentialist 
reference to the exceptional, the breaking of rules as a political category, thereby substantially 
depends on a theological figure, God’s intervention from the outside through a miracle: «The 
exception in law is analogous with a miracle in theology».^[xxvi] 
As with Heidegger, the world – and any kind of human order – springs from an original incident which
is historically concrete, but also transcendent. Schmitt expresses this point by ascribing to sovereignty
in such an event a political character which gains its significance from a theologically based 
position. The state- and contract theory of the Enlightenment, having taken part in what Weber 
termed the process of de-mystification of the Western world (Entzauberung der Welt), has 
only contributed to taming «the exception», in excluding it from immanent constitutional thinking:
«The rationalism of the Enlightenment rejected the exception in any form».^[xxvii] Like
the rationalization of nature into an ordered unity constituted by mathematically articulated 
regularities makes God’s intervention superfluous, personal sovereignty is made superfluous 
and replaced by legally arranged constitutional machinery: «The sovereign, who according to a 
deistic world view … would have been the engineer behind the great machine, has gradually 
been pushed aside to a radical degree. The machine is now self-driven».^[xxviii]
Only through mythologizing the political is Schmitt able to replace the founding in politics in the 
autonomy of the citizens by its existential sovereignty. To political theology, politics and law is no 
longer one sphere of validity among others. The political is a foundational event of disclosure, one 
that allows for the differentiation of culture in general: «The political unity is essentially the unity 
which decides (maßgebende) … It either exists or does not exist. When existing, it is the highest 
unity, i.e. the decisive unity of the decisive case».^[xxix] Schmitt’s political thinking thus anticipates 
an overcoming of cultural modernity in the Kantian and Weberian sense. The establishment of 
the political as a «decisive unity» renews an archaic and mythical impulse by radicalizing the dogma 
of original sin and the political decision which transcends a differentiated concept of cultural modernity.
But is Schmitt’s caricature of the liberal justification for the autonomy of politics a pertinent
one? And does his reference to the existential sovereignty of politics enable him to solve 
the dilemmas he thinks liberal constitutional thinking contains? Schmitt’s concept of the 
political is esoteric from the start and fails to take account of the liberal tradition’s development 
of the concept of positive law within the framework of a contract theory, nor the 
commonsensical justification for the moral legitimacy of political law.^[xxx] Instead, 
the contingency and facticity it emphasised as a kind of otherness or difference, one that
to Schmitt establishes an antinomy within the liberal justification of the state ruled by 
justice: Since any establishment of law must necessarily depart from a moment of facticity, i.e. 
an actual power capable of sanctioning laws as something more than a merely moral 
discourse, the normative aspects of the law and the state will be suspended in favour of
the decisionist privilege of the sovereign. As we have seen, this antinomy, to Schmitt, can only
be solved by an affirmation of political sovereignty as an existential condition, thereby
renouncing the idea of a political constitution which is normatively founded. 
The neo-Conservatives in the US transpose Schmitt’s solution to the same antinomy to
an international level, in regarding the political as a derivate of military force, rather than
as justified through the institutionalization and implementation of global rights.
 

Neoconservatism: From Weimar to Washington

What does it mean to be neoconservative? And what is neoconservatism in an American 
political context? It may seem difficult to treat the various motives of neo-Conservatives together, 
but a feature most of them have in common is a definition of their position as a political anti-liberal 
one and an emphasis on restoring religious and national virtues.^[xxxi] According to Kristol:
«The three pillars of modern conservatism are religion, nationalism and economic growth».^[xxxii] 
On the one hand, one endorses the modernity of capitalist free trade, while on the other, being 
critical towards the liberating aspirations of modernism when it comes to art, interpersonal 
relations, politics and morality. I shall refrain from describing the neoconservative diagnosis of 
culture and society in great detail, but merely give some brief comments on the context of their 
political views.^[xxxiii] In the absence of an analysis of the consequences of capitalism to 
the impoverishment of work communities, interpersonal life and symbolically 
structured self-interpretations (increasingly pressured by demands for efficiency, flexibility and 
on-going change and adaptation as a consequence of free-floating capital, work restructuring, 
new technology and an increased pressure for rationalization), the neo-Conservatives blame 
the intervention policy of the welfare state and a nebulous «modernism» for the dissolution of 
values, divorce rates, problems related to integration, bad performances in schools, a 
polymorphous sexuality, the dissolution of a canon in the universities etc.^[xxxiv] As 
Himmelfarb states: «The welfare state is responsible for a separation of morality and 
welfare politics».^[xxxv] To the neo-Conservatives, the liberal policies of rights and welfare is
what constitutes the problem (and the «class» of liberals and left intellectuals who overload the 
state’s legitimate ability to social-political compensation with their critical voices) – not the effects 
of transcending market dynamics.^[xxxvi] It is a fact that neoconservative cultural critique 
sometimes allows us to see some worrying aspects of the dialectics of cultural modernity: To the 
extent that the demand for self-realization and democratization of intimate relations have costs 
with regard to obligations towards concrete, moral others; to the extent that expressive, 
aesthetic freedom appears in the shape of narcissistic varieties of naivism and hedonism as 
cynical strategies of withdrawal, conservative cultural critique points to an inner logic in the 
cultural ideals of modernism that threatens to undermine its own resources of meaning, i.e. the 
symbolic and narrative resources at the root of the character formation of the self.^[xxxvii] But
the main problem is that the neo-Conservatives confuse the symptoms of an anomic culture with 
cultural modernity as such.^[xxxviii] 
Thus, parts of the neoconservative movement voice a traditional conservative cultural critique à
la Schmitt – an attack on liberalism and social democracy as a mistaken policy which only contributes
to the dissolution of central patterns of value, and a neutralization of the state, leaving the floor open for
a battle between sectional interests. While the individuals loose their dignity, inclination to work 
and self-respect by becoming clients to bureaucratic welfare institutions, the state looses its 
sovereignty and its ability to act to secure its self-maintenance. Although the last point may be seen 
as a departure from the general market liberalist thinking which is critical towards policies of 
social intervention, it is still central to the general neoconservative critique of 
liberalism. «Neoconservatism», according to Kristol, «accepts the primacy of politics to economy 
without regrets».^[xxxix] This privileging of the political is intended to situate state intervention 
in a context where maintenance and preservation of the opposition between the state and civil 
society is the focus of concern, as opposed to welfare state intervention, which tends towards letting 
civil society dominate the state in a policy of democratic outbidding.^[xl]

Cosmopolitan despotism

The affinity between American neoconservatism and Schmitt’s totalitarian state theory and 
practically apocalyptic political vision may seem like an odd thing. But, as we have become 
more accustomed to lately, apocalyptic motives and demonizing distortions of political affairs 
have become more commonplace in the rhetoric of the American administration – as seen in 
President Bush’s speech of January the 28^th 2003: «[During] the new century the ideology of power
and dominance has risen again, trying to take hold of ultimate weapons of terror. And our country and 
all our friends is once again the only thing separating a world of peace from a world of chaos 
and constant fear».^[xli] 
This statement can be read as being nothing but a statement of certain historical facts that 
have changed since the cold war. But it is difficult to overlook the implications of a 
Schmittian understanding of the sovereignty of politics as force and power relation between friends 
and enemies. The picture of the enemy gives the impression that one is subject to an 
ever-present threat, and the centre of a sovereign power as a factor of integration is located in a 
world of friends – in the power to act and to intervene on behalf of the self-maintenance of the state. 
The liberal justification of a sovereignty as a democratic and constitutional product is toned down.
The tone of urgency in the declarations of the Bush administration is a Schmittian one: A threat
of existential chaos at once becomes a premise to the articulation of the political as a 
friend/enemy relation. This rhetorical turn is no arbitrary reminder of Schmitt’s one-sided focus on 
the political as a sovereign decision in the face of a surrounding contingent chaos, the concentration
of politics as military force – rather it is expressive of an intimate connection between some of 
Schmitt’s original ideas and influential Straussians in the American administration. Of course, the 
affinity between Schmitt’s ideas and neoconservatism in relation to foreign policy cannot be said
to challenge the constitutional traditions and ideas on which American democracy rests. Neither 
is neoconservatism «typically American» – exceptionalism is an idea associated with people like
Kristol and Wolfowitz, which is contradicted by age old American traditions of multilateral 
obligations. Hence it is important to be aware of the circumstances behind the apparent success of
the neo-Conservatives in setting constitutional and liberal principles aside. September 11^th is
the moment of radical contingency, giving the neo-Conservatives a horizon that makes their 
decisions and justifications attractive as well as topical. As Ulrich Beck comments: «All of a sudden 
the anti-thesis of neo-liberalism, the principle of the necessity of the state present everywhere, and in
its oldest, Hobbesian variety – as a guarantee of security.»^[xlii] The act of terror on September 
11^th reminded the Americans of a permanent possibility of an implosion of an existential state of 
nature as intended by Schmitt and Strauss. It bears a frightening resemblance to Strauss’ 
existential concept of war: «The prospect of war is constitutive not only of the political as such … but 
also of the prevailing moment to man.»^[xliii] Such a high-strung rhetoric enjoys a 
particularly favourable climate for the time being, which may damage the legitimacy of 
constitutional affairs as well as undermine US’ obligations to guarantee the principles of 
international law and human rights.^[xliv] 
What are the practical consequences of this state of affairs?  The contingent condition for the 
credibility and resonance of the neo-Conservatives enables the definition of political sovereignty 
through a simple opposition: Security can only be gained through a sovereign definition of the threat
of terror as an inner and outer enemy simultaneously. The state regenerates itself as 
politically sovereign through the establishment of an image of the enemy – something which cannot 
be left to international courts of law or an international community of states. It is the task of the state
to act and to protect the prevailing political order, and this act is a politically founding one, hence
it entails the possibility, or necessity of overruling democratic rights and liberties, such as to 
monitor telephones, e-mails and electronic bank-services, to allow for the use of torture in 
interrogations, doubtful annulments of the status and claim for protection of war criminals, 
judgments without proceeding trials, precautionary shootings of civilians, etc. In an 
authentic endorsement of political «being-until-death» (terror) everyone is suspect from the start 
and must abandon their rights as the price paid for security. In a neoconservative, resigned mood, 
Irving Kristol spoke to the same effect 20 years ago: «To demand ‘justice’ as a condition for political 
or social stability, means to make demands this world has never been able to fulfil».^[xlv] This is 
the logic inherited by the Bush administration from Carl Schmitt and Leo Strauss, although its 
condition is no longer that of a clearly defined enemy and hence not in a war between states, but in 
an ever-present, singular threat of terror, the suicide bomber who extinguishes himself in the 
act itself.^[xlvi] 
Robert Kagan has the most topical neoconservative interpretation of this historical situation. 
His analyses make use of a simplified Nietzschesian psychology where the political is explained
in terms of relations of strength and weakness: Only the weak advocate the validity of 
positive international law, the strong have no need for insurances of such a kind and need not appeal
to moral or juridical ideas to retain their hegemony. Right is nothing but a means for the organization
of an economy of commodities and for the regulation of a civil society. It possesses no 
unique dimension of moral and practical validity; rather it is a «strategy of weakness».^[xlvii] Hence 
an analysis of international relations should be based uniquely on the ability to dominate by means
of military force, the ability to intervene to retain one’s own position in a given inter-state constellation. 
To Kagan: 

Understanding the psychology of weakness is simple enough. A man equipped with a knife 
only might judge a bear lurking around in the woods as a danger he has to tolerate – since 
attacking the bear with a knife is considerably more dangerous than lying low and hoping the bear 
will never attack. However, the same man equipped with a rifle would judge differently as to what is
to count as an intolerable risk.^[xlviii] 
What is typical to Kagan is the fact that the political and moral actor figuring in this metaphor 
never recognizes his opponent as a dialogue partner, neither as a person nor as a concrete other, 
but only as a potential enemy, a dangerous bear. Hence the question of one’s relations in terms
of political and moral dialogue with one’s co-citizens and with other states and their leaders is one 
that cannot even be posed: There are no mutual obligations establishing normative bonds between
the parties – only the weaker party would use appeals to normativity as a rhetorical strategy.
A consistent feature in Kagan’s analyses is the lack of differentiation between conviction 
and persuasion – and the best kind of persuasion is one that employs force: «In confronting real 
or potential opponents, the Americans prefer force to persuasion, emphasis on sanctions rather
than encouragements towards better behaviour».^[xlix] Thus it becomes easy to discern 
how diplomacy can be rendered superfluous, and how politics – rather than employing 
feeble persuasion strategies – should be endorsed as a sovereign and exceptional power reality. 
This neoconservative exceptionalism was given a geo-political breakthrough in Iraq.
Which are the problems associated with this analysis? To the extent that the claim that 
the «cosmopolitan despotism»^[l] of the US is intended to bomb so-called evil regimes into
a liberal-democratic modernity is a reliable one, the legitimacy of a war of aggression as in Iraq must 
be established post hoc.  As Habermas points out, the question of legitimacy in this matter seems to 
be decided the moment the statue of Saddam Hussein falls off its pedestal. But despotic 
humanism denies the normative dimension of this case: No admission into a 
liberal-democratic modernity can take place without a preceding recognition of (1) the other’s 
equality as a dialogue partner in a community of democratic states ruled by justice (or at least 
an anticipation of such equality) – which implies (2) consensus between free, democratic states on 
how such a process of democratization should take place. The first point involves an obligation 
towards the otherness of other cultures and traditions, which implies the possibility of 
alternative interpretations of the premises of a democracy of rights; in short an admission of 
the possibility of what Ulrich Beck has termed «other modernities».^[li] The second point 
implies obligations towards international law and the demand for authorization through the 
UN Security Council. We need not discuss in detail all the fair alternatives to the 
US’ unilateral intervention – see for instance Michael Walzer’s discussion^[lii] – it suffices to 
assert that none of the existing attempts to justify the war have been sufficient. Neither the appeals
to previous resolutions, nor the attempts to avoid the problem by indicating that Iraq was an 
immediate threat, some of which referred to a potential threat of terror, are very convincing.^[liii] 
The reference to Iraq’s connections with terrorist groups, furthermore, undermines the legitimacy
of attacking a state power, since the threat of terror is singular and trans-national (hence it must
be fought by other means than traditional war between states). The neo-Conservatives, however, 
are content with their assurance to themselves and the rest of the world of the exceptionality of
the moment – the ability to act and to allow for the aesthetic self-justification of the success of the 
victor. But, as Habermas concludes: «Let’s not entertain any illusions: America’s normative authority 
lies in ruins».^[liv] 

Normative freedom and historical contingency

As we have seen, Schmitt wanted to disclose a theological-existential concept of political 
sovereignty through a presentation of the normative aporia of liberal constitutional thinking. The 
relation between an established order of law and its historical possibility, to Schmitt, is based on 
the paradox due to the fact that the political must already be presupposed as a sovereign ground
of being to the state and civil society. Kagan employs a similar logic in raising the element 
of contingency and historical facticity to the raison d’être of politics. To Kagan, the old Europeans
are unable to solve the normative paradox presented by the antinomy between the Kantian ideal of
a peaceful, cosmopolitan and rights-based consensus and the guarantee of law (a potentially
despotic state). The US, however, solved this problem presented to the Kantian continent: 
«Europe’s new Kantian order was able to flourish under the protection of an American power 
performed in a Hobbesian world. American power enabled Europeans to believe that power was
no longer necessary.»^[lv] Thus, Europeans are unaware of the radicalism of contingency – and
with their normative aspirations, they are at least unable to tame it. 
But is this antinomy as fateful to a concept of normative rights and freedom as Schmitt and Kagan 
would want us to think? One should also ask whether their alternatives really solve the 
normative paradox, or whether they rather serve to strengthen it. Firstly, the thought that 
political sovereignty escapes the arbitrariness assigned by Schmitt and the neo-Conservatives to 
the various interests and diverse conceptions of the good in civil society is hardly convincing.
Secondly,  the concept of the existential contingency of the political state of nature, rather than being 
as «natural» or «original» as Schmitt and Strauss suggests – is a postulated otherness or 
difference vis-à-vis the liberal order of law, retold as strategically constructed political myths. Thirdly, 
the neoconservative caricature of the liberal-juridical justification of the normative dimension of
politics is not particularly apt – in Kant and in Ficthe, as well as later in Cassirer and Habermas, 
the moment of facticity and contingency is regarded as a dimension of the concept of the political and
a premise to its practical and moral validity from the very beginning. Let us conclude by a 
brief discussion of the three points (a)-(c). 
(a) As to Schmitt, the sovereign’s re-politicization of a neutralized political condition of modernity was
to overcome what Weber had described as the «strife of belief-power», i.e. the arbitrary weakening
of state power due to the battle between sector interests and organizations. But, as has been 
pointed out by several commentators, the normative antinomy is still a feature of Schmitt’s 
own endorsement of the political – for who is to define the relations between friends and enemies, 
and who represents the state, and based on which judgments and interests? The arbitrariness in
the establishment of a political sovereignty and an elite transcending and conditioning the views of 
the good of the civil society – the aesthetic consumerism, according to Schmitt – is also at the root 
of the political event. Schmitt is struck by his own critiques of the aesthetic withdrawal and 
private arbitrariness of the romantics.^[lvi] 
(b) The myth of the state can only be retained and confirmed through similar mythical images of 
the enemy – which to Schmitt means the technical-instrumental modern rationality as Anti-Christ, 
as illustrated by the Soviet Union as an antithesis to the West; a re-theologizing of the foreign 
political agenda in terms of good and evil states, in the demonizing of other nations as enemies of 
the historical mission of the good. The political myths are intended to depict the exception and
the contingency – and the exceptional character of political power – in the universal and 
existential shape of the myth: The force of myths is a motivation and an ever-present reminder of 
the fragility of the political state and its existential abyss. The problem with Hobbes’ myth of the state
in the shape of the biblical monster Leviathan was, to Schmitt, that the choice of a mythical figure was
a failure – as Leviathan was defeated by the Jews and the Christians, the state was neutralized 
and «conquered» by particularist interests. Hence the political myth formation must be stronger than 
the citizens’ struggle for self-assertion and the tendency of the civil society to disengage from 
the political.^[lvii] 
The problem connected with political myths – whether it is re-theologizing of the political through 
the doctrine of original sin, apocalyptic historical tales or national myths about privileged or 
selected peoples or demonizing images of the enemy – is that they are all ideologically 
administered myths with a strategic purpose. To Schmitt, the aim of the political myths was to 
overcome the tendency to aestheticism, to subjectification of the political, by means of the original
force of the mythical images and power to disclose the human in the convergence of 
political sovereignty and revelation. But as pointed out by Ernst Cassirer in his analyses of the return
of the mythical in the politics of the 20^th century, the force of myths no longer consists in their power
of fate, i.e. in the involvement of mythical imagination in a ritual practice or mythical «form of life», 
but rather in a manipulated effect. Thus, the sovereignty of the political as a mythical force is 
necessarily paradoxical in its rejection of modernity, as it must presuppose what it tries to transcend: 

Our modern political myths are not in any way the products of a dark, mysterious power. They do not arise, more or less consciously, from a «national spirit». Rather, they are intentionally invented for specific purposes … What we have is a completely rationalized myth.^[lviii] 
The antinomy of contingency – the exception, the extreme case, the exceptional act etc. which 
is regarded as constitutive of a constitutionally regulated normative freedom – is itself a 
contingency administered by political elites. 
(c) The element of contingency within the liberal-juridical tradition does not lend itself to
a re-mythologizing of state power.^[lix] What characterizes the idealist tradition since Kant is 
precisely the attempts to expound a concept of law and politics that allows for a concept of 
normative freedom, while also viewing this freedom as existing from the start in a partially 
contingent and real social and historical reality. In Kant this aim is already expressed in the 
justification for the principle of law (Recht): In the light of the inability of the capacity for moral 
judgment to be transposed to a real current normative order, we must presuppose an 
external law-giving instance that implements a law-regulated relation between individuals who 
pursue their own subjective aims and purposes separately.^[lx] We cannot go into the details of 
Kant’s justification of the principle of law, but it is important to see that the principle implies a change
of purpose rather than an attempt to derive the political from the moral.^[lxi] The political, to 
Kant, cannot be derived from internal moral resources – like the distinction between morality 
and legality, perfect and imperfect duties etc. – it must rather be understood on its own terms, 
starting from a concept of «external law-giving». The legal principle (and the political as 
external regulation of freedom) is, however, justified through the self-limitation of practical reason: 
Within a political order of law the power to execute right actions is transferred from the individuals 
and their moral discourse to a sanctioning authority, which thus replaces the moral-practical 
discourse and practical judgment in an external (i.e. social) sense. The contingent conditions of
this practicing of morality are contained by a principle of law that guarantees an actual performance 
or completion of normatively regulated relations (concerning the actors’ mutual dependence as free 
and equal – i.e. to the extent that their external freedom is a social reality). Hence a political order of 
law is primarily a moral concern and acts as a filter to morally relevant acts. The practical-moral 
validity of the principle of law is reflected in its universality and political equality of 
justification.^[lxii] Thus there is an inner relation of legitimacy between the exercise of the principle
of law within a liberal constitution and its moral aim: The subjective rights and liberties of the
singular individual cannot be imagined without equally fundamental rights to political participation 
(the principle of publicity etc.), continuously justifying the law-giving and political authority. 
State sovereignty stands in a legal relation which is based on the moral autonomy 
and self-interpretation of the citizens – and this relation cannot be thought of as mutual 
without dissolution of law.^[lxiii] 
However, a problem with Kant is that the relation between morality and politics must be seen as a 
kind of reflection of the idea of pure practical reason in a political sovereignty. Since Kant cannot 
allow for any concrete or institutional mediation of moral and legal-political discourses, other 
than through the principle of publicity, there is always a risk of practical reason that the 
political sovereignty is detached from the moral self-understanding of the citizens. The way in which 
the contingency of the state ruled by justice is related to morality is only through a subjective 
historical teleology: we must presuppose that the «invisible hand» of history gradually 
arranges apparently contingent events in relation to a moral whole, a kingdom of freedom. 
This situation, however, is changed with Fichte and with the young Hegel. In the works of these two 
the republican idea of freedom is developed in such a way as to mediate the tension between 
morality and law from the start. In Fichte’s Grundlage des Naturrechts (1796)^[lxiv] subjective 
rights (private law) are seen as gained through inter-subjective forms of recognition, assigning
external guarantees of the individual’s autonomy and freedom: 

I must recognize the free essence of the other as something else than myself as such, that is, I 
must limit my own freedom through the possibility of the freedom of the other … the fact that ach
limits his freedom through the possibility of the other’s freedom … is in itself the legal 
relation (Rechtsverhältnis).^[lxv] 
Hence the autonomy of the modern individual depends fundamentally on the intersubjective forms
of recognition of the state ruled by justice, in which a post-traditional concept of freedom 
and individuality gains concrete institutionalized and differentiated forms of expression. At the 
same time the relation between subjective liberties and rights to participation is the reverse of that of
a Hobbesian individualism of property owners: Legal affairs and a political order are conceived of, 
from the beginning, as intersubjective guarantees of the self-reliance and normative autonomy of 
the individuals. The constitutional principles of the state ruled by justice are external manifestations 
of the claim to autonomy and self-realization, admitting the vulnerability of this autonomy and the 
need for external, i.e. real social and institutional criteria for its performance. Thus the political rights 
and rights to participation are fundamental to the performance and ascription of autonomy to 
the individuals and imply an active regeneration of political legitimacy on the part of the civil 
society: «Anyone who enters the state must be capable of being convinced that he cannot be 
treated unjustly or unlawfully. This impossibility, however, cannot exist unless the one who administer
the law can be made accountable himself. A constitution in which the ones who administers 
public power bear no such responsibility is despotic.^[lxvi] The power held by the political and 
legal state ruled by justice towards singular individuals is only legitimate as an arrangement securing 
the practical applicability of the ideal of autonomy, so that the actual and contingent 
circumstances surrounding the acting individuals can be seen to be ordered in relation to the aim
of freedom.^[lxvii] 
Thus political sovereignty and positive law cannot be conceived independently of the principle 
of continuous creation of legitimacy of the political sovereignty through the endorsement of the 
citizens. This implies constitutionally guaranteed political rights of participation, enabling the citizens
to influence the process of law-giving and decision through democratic procedures. But the state 
ruled by justice cannot be assimilated to a concept of democratic self-rule, as the liberal constitution 
and positive law is principally different from and primary in relation to a purely moral-practical 
discourse. The idea of a state ruled by justice and a democratic constitution can be thought of as
a prolongation of the principle of law as a normative principle of recognition, balancing the relation
of law and morality. The contingency and facticity of political sovereignty is continually shaped 
through the participation and active lawgiving of the citizens – it is not, as in Kant, allotted to a 
practical postulate to the view of history, rather it is subject to a striving (Fichte) expressed through 
the civil society’s testing and creation of political legitimacy. The constitutional and procedural rules
of democratic decision and justification in the state ruled by justice bring forth a mediation of law 
and morality which reconciles the tension between facticity, contingency and normative 
validity. Habermas elaborates the idea of a state ruled by justice in an intimate relation to the concept
of a civil society which is to provide the institutional basis for a living democracy – while securing 
the expression of the self-understanding of the citizens as discursively autonomous beings in a 
political reality: 

The legal order is only autonomous in so far as … it guarantees an institutionalized procedure
for impartial opinion- and will formation, thereby securing the access of a moral form of rationality to
law and to politics. No law can be said to be autonomous without a realized democracy.^[lxviii]
 
This normative mediation of the facticity and contingency of the political – the tradition from Kant 
to Habermas – is what Schmitt and the neo-Conservatives fail to recognize. Their hypostasis of 
the political into an almighty sovereignty – administered by political elites and retained through 
mythical images – rather allows contingency to be decisive to an understanding of political power. 
The fear of radical contingency can only be mastered by embracing something even more 
frightening, an all-encompassing political sovereignty. The exception disenables the normative force
of the ideal of autonomy and is countered by the political sovereign act which establishes order
by confirmation of the exception, or by relying on the exception for its own existence. But, as 
Cassirer emphasized, the alternative (i.e. a liberal constitution where political sovereignty and 
normative freedom are equally foundational) is no exhausted historical figure, but rather a 
normative political idea which «must still pass its most difficult and deepest historical test».^[lxix] 
The idea of a procedural and just democracy – where contingency and political sovereignty 
are subordinate to the autonomy of the citizens – can only be realized in a cosmopolitan community
of states regulated by law. Although the realization of this idea is always preliminary, it is 
nevertheless one which is guiding in practice.

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