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Niklas Luhmann, Carl Schmitt and the Modern Form of the Political
Chris Thornhill European Journal of Social Theory 2007 10: 499 DOI: 10.1177/1368431007075966 The online version of this article can be found at: http://est.sagepub.com/content/10/4/499

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European Journal of Social Theory 10(4): 499522


Copyright 2007 Sage Publications: Los Angeles, London, New Delhi and Singapore

Niklas Luhmann, Carl Schmitt and the Modern Form of the Political
Chris Thornhill
U N I V E R S I T Y O F G L A S G OW

Abstract Niklas Luhmann elaborated his account of the political system in a complex, though often implicit, debate with Carl Schmitt. Underlying his systemstheoretical model of politics, and of the legitimacy of politics, is the antiSchmittian view that modern societys communications about itself are neither coordinated by, nor embodied in, a political centre, and that politics is always an unemphatic aspect of these communications. However, this article proposes an immanent critique of Luhmanns analysis of the political system, and it argues that his theory uses highly selective and puristic techniques to support its limitation of societys politics. If interpreted critically, in fact, Luhmanns political sociology illuminates the specic politicality and political emphasis of certain communications, it underlines the distinction of politics from other systems of social communication, and it calls for a reinsistence on the political as a primary category of social analysis. Key words Niklas Luhmann political sociology political system political totality Carl Schmitt sovereignty systems theory

The suspicion that Niklas Luhmanns social theory and political stance were inuenced by Carl Schmitt strongly shaped the early reception of his work, and it was an important undertone in the controversies which his ideas provoked in the 1960s and 1970s. The suggestion that he was associated with Schmitt was not solely based on a textual response to his theory, but it also reected a wider strategy of discreditation. Luhmann came to prominence and obtained his rst academic appointment in the late 1960s, a time of deep political radicalization in the university system of the Federal Republic of Germany (FRG), and also a time where politically nuanced readings of Schmitt were not widespread, except on the political right. Luhmann, notably, did not immediately declare his position with regard to the climate of student ferment around 1968, but there is strong evidence in his publications that he viewed the events and the legacies of 1968 in disdainfully ironic and condescending manner (see note 27). As a consequence of this, the claim that he was a remote apostle of Schmitt was often used to position

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DOI: 10.1177/1368431007075966

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him within the political landscape of the 1960s, and to brand him as an exemplar of the persistently reactionary political culture at German universities. Subsequently, then, during the death throes of political Keynesianism in the late 1970s, Luhmann emerged in the margins of neo-liberal theory as an inuential critic of social democracy and state-led welfarism. At this time, again, the imputation of Schmittian impulses to his theory served to facilitate a conveniently historicized classication of his work, and it permitted its distinctive importance to be relativized. The question of how Luhmanns work was related to Schmitt consequently throws important light on the theoretical history of the FRG, and some of the more sensitive fault-lines in recent German political culture become visible through an inquiry into this question. Because of this, consideration of this issue also illuminates the broader discursive preconditions of Luhmanns theoretical evolution, and it offers a key to understanding how he reected on his own (notoriously elusive) political attitude, and how he placed himself within the wider political terrain.1 The greatest signicance attached to this question, however, is linked to the fact that in his reaction to Schmitt Luhmann sought to counteract Schmitts extremism by proposing a theory of society which renounced all exceptionalism and all traces of political ontology, and which developed a sociotheoretical methodology capable of interpreting the politics of modern society as entirely unemphatic. In one of his rare direct pronouncements on Schmitt, therefore, he explained that he was not convinced by Schmitts theory, and he described a good politics as one whose capacity for realization does not require the concentration of society around volatile or deeply experienced political contests.2 In consequence, in addition to its discursive importance, a reconstruction of Luhmanns approach to Schmitt frames an analysis of two counterposed accounts of the politics of social modernity, and it addresses the question of how and whether modern society still remains specically political, and of whether the advent of modernity in a society means that this society loses its structural experiences of politics, power and legitimacy. For this reason, a comparative analysis of Luhmann and Schmitt also enables a clarication of the political components of Luhmanns work, and it places the tenability of his founding political claims in a stark critical light. The End of Political Totality The early identication of Luhmann with Schmitt focused on four salient points. First, Luhmanns argument that a political system constructs itself by differentiating itself from the non-political contents of the societal environment which surrounds it, and by marking a specic self-produced realm of sense as irreducibly and autonomously political (1974: 163), was widely seen to replicate Schmitts earlier theory of the autonomy of politics. Specically, this argument was seen to reect Schmitts claim that the political system is formed as political through its binary self-differentiation, through its exclusion of all heterogenous

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elements from its structure (1932a: 28), and through the imposition of its will, as autonomous sovereign, across other social spheres (1922: 13).3 It was therefore suspected that the binary structure of the system/environment relation in Luhmanns sociology contained a surreptitiously anti-pluralistic model of systemic formation, which transposed Schmitts exceptionalist denition of sovereignty into a functionalist account of the modern political order. Second, it was also inferred, as a consequence of this, that Luhmanns social theory veered towards an attitude of political decisionism. His claim that the primary function of a political system is the production of binding decisions (1970a: 159), or of collectively binding decisions (1984a: 102), and that the decisions made by a political system serve positively to unify and legitimize this system against its unstructured environment, was habitually taken as a sign of Schmittian afnity.4 Luhmanns early theory of the decision was integrated into an analysis of the political system which stated that the modern political system is triadically differentiated into three subsystems politics, administration, and public. In this system, the symbolic executive functions of politics have a primary role in generating legitimacy for the entire political system, and the executive makes the rst decision which sets the parameters for all other decisions instituted as politics (1966a: 114). Taken together, these theoretical elements appeared, rst, to revive the Schmittian argument that legitimacy is derived from symbolic acclamation for the executive, not founded in participation or consensus (1927: 34), and, second, to concentrate political order around a societally disengaged group of decision-makers.5 Third, Luhmanns sociology was also often seen as a theory which reproduced Schmitts central claim that law cannot provide constitutive terms for political legitimacy, and that laws obtain legitimacy (that is, following Weber, the power to command obedience) for reasons which rational analysis of laws content can neither comprehend nor prescribe (1923: 56).6 This critique focused in particular on Luhmanns assertion that rationally acceded norms are not an external precondition of legitimacy in politics (1981a: 69), and that political systems describe themselves as legitimate in highly varied and deeply paradoxical ways, which cannot be condensed into normative postulates.7 His theory was therefore often construed as one which attacked the central liberal idea of legality as the safeguard of democracy, which denounced the liberal belief that law and legal norms can produce societal conditions of pacication and legitimized compliance, and which assumed that laws legitimacy relies on the pre-existence of a stable political order, in which law itself is a subsidiary variable. Fourth, early receptions of Luhmanns work also took issue with his hostility to integrative ideas of welfare or participatory democracy, and they claimed that his theory of decisions was marked by a technocratic approach to legitimate governance.8 In this regard, Luhmanns work was placed on a continuum with Schmitts theories of the last years of the Weimar Republic. At this point in his trajectory, Schmitt slightly altered his exceptionalist theory of sovereignty, and he advocated a restriction of the states regulatory and distributory responsibility (see Cristi, 1998: 20011), and a devolution of political authority to the political

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administration, albeit under commissarial or presidential control (1932b: 81). This inference of a technocratic symmetry between Luhmann and Schmitt was in fact widened to incorporate the claim that there existed a larger lineage of technocratic theorists; this, it was claimed, began with Schmitt and ended with Luhmann, but it also included the conservative functionalist theorists of bureaucracy whose works set the contours of debate in post-1949 Germany, especially Hans Freyer, Arnold Gehlen, Ernst Forsthoff and Helmut Schelsky.9 On these grounds, a view of Luhmann was allowed to circulate which saw his political theory as a design for government by technologically empowered administrators and semi-independent prerogative elites, whose competence was decoupled from active or participatory social groups and dedicated to narrowly political tasks of consensus-manufacture and planning. Jrgen Habermas was especially responsible for this technocratic categorization of Luhmann, and he, with other critics, saw Luhmanns systems theory as symptomatic of a rising Schmittian undercurrent in the political culture of the FRG in the 1970s.10 In this respect, moreover, Luhmann was also identied as a post-Schmittian contributor to the debates about ungovernability, which resonated through right-wing protests against expansive ideas of democratic distribution in the FRG in the late 1970s.11 These accusations were sensitive and multi-faceted enough for Luhmann to respond to them in deliberate (although normally implicit) manner. On the rst point of criticism, even in his earliest writings Luhmann designed his account of the binary differentiation of the political system as a repudiation of Schmitts claim that the political system assumes a status of primacy in modern society, or that this system is positioned dualistically or exclusively above other social systems. He insisted instead that no system of society can assume measurable priority over any other system, and, consequently, that politics cannot impute to itself responsibility for regulating areas of society which are not internal to its own relatively narrow communications. Luhmanns account of politics as formed by its difference from what is not political can consequently not be seen as an exclusionary or anti-pluralist construction of the political system. On the contrary, he saw the autonomous differentiation of politics as one element in a wider multi-systemic dynamic of differentiation, in which a number of social systems (e.g. law, economics, religion, medicine, science, education and the arts) construct themselves as plurally, non-hierarchically, and inclusively autonomous (1981b: 223). For this reason, the Schmittian argument that the state is distinct from society and that, in obtaining sovereignty, it positions itself in a dominatory duality towards the plural associations which society comprises, is, for Luhmann, a nave and counter-factual claim.12 In this respect, Luhmann implied that Schmitts conception of the political system as a sovereign fulcrum of society fails to recognize that modern societies have evolved as polymorphously differentiated and decentred societies, and that each system of modern society contains a distinct type of rationality (1967: 106). The contents of one systemic rationality cannot be generally transmitted across inter-systemic boundaries, and no system can observe or intercept problems in other systems without transforming these, rather unpredictably, in accordance

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with its own rationality. It is, Luhmann therefore claimed, not possible to assume that one particular system containing one particular rationality can possess a central or sovereign role in society. It is not possible to centre a functionally differentiated society on politics without destroying it (1981b: 223), and a condition of political sovereignty would entail a traumatic societal de-differentiation, in which the fragile web of differentiated autonomy and pluralized rationalism constitutive of societys modernity would be thrown back into a state of antiquated monism. Luhmann consequently viewed Schmitts category of political sovereignty as a remote and unhelpful concept which falsely imagines that society, in its totality, can be made to converge around one mode of reason or one personal will. In response to such theories, in fact, Luhmann argued that sovereignty is merely an evolutionary semantic of the political system. The idea of sovereignty, he argued, evolved as a paradoxical term or a ction through which, at the threshold of societal modernity, the political system began, at an early stage in its differentiation, to provide a description of itself, which allowed it to articulate and externalize the preconditions of its differentiation and to stabilize itself as a distinct, autonomous and determinately political set of meanings (1984a: 103). However, as society subsequently progressed into a condition of full modernity and total differentiation, inated concepts of the sovereign state rapidly outlived their semantic utility, and in late modern societies these concepts tend to disable adequate socio-political analysis. Indeed, concepts of sovereignty often create the harmful appearance that all problems can be uniformly resolved by the functions of representation or rationality embodied by the political system, and this normally leads to a functional overburdening of the political system.13 Luhmann consequently derided Schmitts thought as guided by an unsurpassed sense for the redundant (2000: 333), and he dismissed his post-theological concept of sovereignty as a more or less wittingly absurd attempt to found the contingent sources of modern power in the acts of one creative will (1992: 8). On the second point, Luhmann acknowledged that his description of politics as a social system making collectively binding decisions has a certain proximity to Schmitts earlier decisionism.14 Indeed, this aspect of his social theory echoes Schmitt both in the claim that a political system is constituted and unied by its decisions, and in the claim that these decisions at once found and endlessly re-enact the conditions of positive legitimacy in the political system. Like Schmitt, he argued that decisions mark, ex nihilo, acts of positive or contingent selffoundation in the political system, and that these decisions enable the political system to differentiate itself from other systems and to describe itself to itself as a positive and integral form of order.15 Both Schmitt and Luhmann thus construed the decision as the marking of a distinction which permits politics to refer to itself as autonomous, and so positively to underwrite its contents, and the laws covered by its sanction, as legitimate (see Luhmann, 1967: 116). For all the seeming absurdity of Schmitts attempt to deduce the positive legitimacy of the state from its analogy to Gods sovereign will, therefore, Luhmann surely identied a dialectical element of modernity in Schmitts theory, and he accepted

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the view contained in exceptionalist decisionism that in modern societies political legitimacy and legitimacy in law are fully contingent and auto-causal and that the decision is a gure for the moment where legal and political contingency is stabilized as legitimacy.16 In this respect, both Luhmann and Schmitt exemplied an attitude of extreme legal-political positivism, and both accepted that law and politics cannot presuppose moral or value-rational principles for their decisions, but are endlessly charged with the decisive labour of positive self-legitimization. Luhmann concluded, consequently, that the ability to secure recognition of decisions is the essence of the concept of legitimacy (1983: 31). Despite this clear convergence, however, Luhmann was also quite clear about the ways in which his theory of the decision differs from that proposed by Schmitt. He denied, for example, that decisions giving legitimacy to politics are the exceptional acts of sovereigns, or even of particular persons (Beyme, 1991b: 239). He indicated instead that decisions are simply enactments of the code by which politics constructs itself as differentiated and autonomous: that is, the code government/opposition. This code is a binary matrix through which the political system decides which elements in its environment are relevant to politics, and then communicates with itself about its decisions over these elements. These decisions, however, are not decisions of the will: they are decisions of a code, and it is a matter of relative insignicance for the system which person or which will factually enacts them.17 The decision of the political system, moreover, is never the decision of a sovereign, and certainly not, in a Schmittian sense, of a total sovereign.18 This decision can never project a total or exceptional vision of what is right and good for all society, and it can never force all society to centre itself and its communications on this total or exceptional vision. The decision of the political system, rather, is always partial, differentiated, and revocable. A modern society can never confront itself totally in a decision, and it can never be brought into an exceptional or total account of itself, for both society and societys political system make many (very unexceptional) decisions, and these decisions cannot be generalized into absolutely exclusive options or choices for all spheres of society at the same time. If Luhmann was a decisionist, in consequence, he was a decisionist who sought to demystify decisions and who saw the dramatic totalization of decisions as a modern absurdity. Decisions, he implied, merely externalize the self-referential contingency of the political system, and they allow the political system legitimately to actualize itself as something (and specically as something political ), and so as marked by its difference from nothing (2000: 47). The decision is an act of paradox in which politics spontaneously distinguishes itself from non-politics, and then brings the contingency of this paradox into a condition of legitimacy, where it is accepted as politics throughout society (1992: 11). In his earlier decisionism, therefore, Schmitt expressed anxiety about the neutralization of sovereignty, legitimacy and the political itself as signs of a deep malaise in Western society, and he saw the decision as a positive act of voluntaristic concentration, causing all society to condense into a total-political experience of itself (1932a: 7995). In his later decisionism, by contrast, Luhmann merely mused that politics

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is one mode of societal self-communication among others, and that politics communicates about itself decisively precisely because of its irreducible contingency.19 However, there is no certainty that anybody need care or even decisively notice if the political system suffers a shortfall in legitimacy or sovereignty. On the third point, Luhmann again admitted a certain proximity between himself and Schmitts anti-liberalism. Like Schmitt, he argued that governmental or juridical legitimacy depends neither on rationalized evidence of legal validity nor on justications of legal compliance produced outside the political system. The legitimacy of political decisions, he stated, is to a large extent independent of the consensus of those affected by them (1983: 209), and normative philosophical analysis of the conditions under which political domination is legally acceptable tends to present highly simplied and selective accounts of legitimacy (1970a: 159). He therefore claimed, like Schmitt, that there are no rational laws which are formative of political legitimacy, that legitimacy cannot be measurable in law, and that the legitimacy which underwrites laws likely to be met with compliance is a conclusively positive and historically contingent commodity, supported by a responsible decision, not by a rational norm, in the political system (1970a: 167). At the same time, however, Luhmann was also keen to understate the politically dramatic implications of his anti-normative concept of legitimacy, and, contra Schmitt, he asserted that although legitimacy resists normative-conceptual stabilization, it should not be assumed that the application of power by positively legitimized political systems involves a drastic violation of societally inscribed legal norms. Although not conditioned by law, he explained, a legitimate political system is surely not above the law, and its decisions do not exist independently of law. On the contrary, he argued that in differentiated societies political power can never be transmitted in vertical, prerogative or sovereign form, but must in fact be transposed into an iterable medium (law), which creates multiple opportunities for compliance throughout society and diminishes the probability that obdurate resistances to powers application will occur (1981c: 166; 1995: 425). Modern power, Luhmann thus claimed, requires law as the medium of its societal dissemination; it must be second-coded as law or subordinated to the law; and it cannot be transmitted except in the institutional structure of a legal state [Rechtsstaat] (1997: 357). Power which is not legally formed and which remains concentrated at uniquely personalized points of communication in the political system cannot be effectively utilized in modern social communications. Like more orthodox liberals, therefore, Luhmann argued that societies whose political systems enjoy legitimacy normally promote a high degree of interdependence between law and politics, and that legitimacy will in all probability be the attribute of a political system whose power assumes the form of a legally structured democracy. Schmitts attack on the normative or liberal-Kantian claim that legality is the precondition of legitimacy was quite fundamental. He argued that law only obtains legitimacy if it is underscored by a substantial pre-legal or political foundation, concretized either in a personal executive or in a national association

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of wills (1922: 38), and it is only where the law is supported by beliefs, identities, wills or experiences of unity that it is likely to obtain enduring compliance. Luhmanns anti-normative view of legitimacy, however, was altogether more circumspect and dialectical. Far from replicating Schmitts ideas, he argued that it is just as fallacious to claim that laws validity requires political substances existing outside law (for example, a strong executive personality, a unied national culture, or a basis of racial homogeneity)20 as it is to claim, in liberal-Kantian style, that the legitimacy of politics refers to monadically generated rational norms, transcribed into laws. For Luhmann, both law and politics obtain validity through their own communications, and through the semantics and self-descriptions which they are able to initiate in order to render their applications consistent and plausible. Despite this, however, he also suggested, against Schmitt, that there exists a high societal probability that modern power will be a medium of communication which is interdependent with law. On the fourth point, nally, Luhmann also clearly moved his thought onto terrain normally associated with Schmitt, and his threefold differentiation of the political system into politics, administration and public surely mirrors certain aspects of Schmitts more technocratically inected observations. Luhmans subdivided construct of the political system implies, rst, that the symbolic or decisive resources of legitimacy in politics are generated from above, by the executive. The executive, Luhmann argued, creates decision premises for all administrative functions of the political system, and all functions of the political system rely on these premises for their founding authority and consistency (1966b: 286). Second, however, this theory also ascribes great weight to the second tier of the political system: that is, to the administration (1966b: 294).21 Crucially, Luhmann dened the administration as the legislative component in the political system. He saw the administration as a political subsystem which, working within the constraints set by political decisions, intercepts communications from the public, and reshapes policies, programmes or decision premises, so that these assume an adequately generalized form (the form of law) (1981b: 45, 64). He therefore claimed that legislation, to a large extent, is the result of bureaucratic procedure, evolving at the point of intersection between the public and the political administration, and that common views on legislation as a manifestation of consensus or agreement are highly reductive (1981b: 45). Laws, he explained, might be formed through personal discussion between cabinet members and high-ranking civil servants, through the parliamentary drafting of bills and papers, through exchanges and arrangements between sub-governmental lobbies and members of the state bureaucracy, or even, at a more local level, in councils and regional deputations (1981b: 63). In all instances, however, legislation is the outcome of administrative exchanges, which are originally supported and underwritten by the highest policy decisions of the executive. Clearly, then, it is no coincidence that early interpreters of Luhmann were alarmed by the symmetries between this model of politics and the theoretical features of Schmitts more functionalist works.22 Above all, the works of Luhmann and Schmitt converged however sporadically in their common claim that

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politics is a formal sphere of planning or programmatic policy-making, which creates the originating sources of legitimacy for all political communications, but which remains relatively independent of the technical processes of legislation and societal regulation.23 For this reason, both claimed, most specic functions of government should be delegated (through plans and strategic decisions) to the state administration. The works of both Schmitt and Luhmann consequently contain an implicit doctrine of executive democracy, which identies the functions of democratic governance as acts within a densely ramied bureaucratic executive, not as constitutively responsive communications between political institutions and civil society.24 Despite this, however, Luhmann was also determined to place clear theoretical water between himself and all emphatically technocratic theory. At one level, he intimated, it is difcult to deny that governmental technocrats are correct when they claim that modern governance necessarily revolves, not around substantial consensus, but around the administration of functionally adequate solutions for technical problems.25 Politics, he argued, cannot be other than a set of technical operations, and it has no primary association with founding human interests, rationalities or dispositions (1969: 315). Modern political legitimacy, therefore, is not obtained by rational-normative selections, but by the political systems evolution of a higher exibility, which allows it to respond effectively to the complex environments of modern society, and by its ability to condense its manifold functions into succinctly plausible descriptions of its purpose and justication (1969: 315). At the same time, however, he also suggested that diagnoses of technocracy (either afrmative or critical) are habitually overblown, and the idea that the political system has suddenly gained access to technological instruments which permit it to subject all areas of social communication to exact regulation is without substance. However expansive its technological resources might be, he argued, a political system does not have the capability to elaborate plans which can be congruently imposed across all society. A political system is surrounded by many rationalities and by many environments, and it cannot evolve cognitive or technical capacities adequate to all facts and all rationalities in its environments. For this reason, he argued, the element of planning or of technocracy is always the weakest or most contingent moment in the political system (1966b: 296), and no political system can guarantee that it can reliably use technology or technical goods to transform particular plans into universally consistent or reliable directives. For Luhmann, therefore, attitudes to technocracy which are either enthusiastic or anxious suffer equally from an inated vision of politics, and they fail to understand the highly contingent and uncertain character of modern societies and the politics of these societies. A comparison of Schmitt and Luhmann, consequently, shows that, in many ways, they elaborate two fundamentally counter-posed accounts of the status of politics in modern society.26 In its entirety, Schmitts work marks a lament on the demise of politics. It is an expression of disquiet about the modern emergence of societal polycracy and the overrunning of political ethics and leadership by the pluralist mass of material, technical and strategic interests held at a

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level of indifference by early modern and high-liberal states (1931: 90). His theory is consequently marked by a resolve to re-inate the political, and where possible, to coerce society into totalized constructions of itself, distilled into dramatized ideas of political sovereignty and authority, centred in the state. In its entirety, in contrast, Luhmanns work effaces the pathos from politics, it happily accepts polycracy or polycentricity as the evolved condition of modern societal pluralism, and it denies that society can ever be politically total, or that one mode of rationality can explain or congure society as totality. For these theoretical motives, Schmitt normally identied himself with political associations which, in his opinion, sought to maximize the political content and emphasis in society and to ensure that as many aspects of social decision-making as possible were determined by centrally concentrated (or total) decisions. In contrast to this, Luhmann tended to identify himself with political positions which diminished the convergence of society around its politics, and which attempted to limit the number of themes deemed susceptible to coupling with politics. As a (broadly dened) liberal theorist, Luhmann expressed contempt for the political colonization of differentiated social systems under totalitarian governments, which he saw as marking a retrogressive development in the differentiation of politics and economy (1981b: 29). In addition, he reviled the expansion of the boundaries of the political promoted by the student movement around 1968 and the New Left thereafter,27 which endeavoured to transform education, science and the family into sites of intensely politicized conict and polemic.28 Moreover, he also opposed the practical and theoretical inclusion of economic provision in the political system promoted by the welfare states in Western Europe in the 1970s,29 and he saw the radical-democratic widening of politics to integrate popular participation as a disaster (1987a: 154). In his own stretch of history, therefore, Luhmann dened himself against Schmitt as a theorist of anti-politics, not of total politicization. As a consequence of its differentiation and its many-featured environmentality, he claimed, modern society is a specically un-politicized or even un-powered society (Clam, 2006: 152). Attempts (of whatever political persuasion) to re-invoke politics as an emphatically experienced centre of societal control or stability fail to identify the modern de-emphasization of power, and, because of this, they simplify the evolved complexity, differentiation and pluralism to which modern societies owe their freedoms. In this restriction of societys politics, then, Luhmann also claimed that theory which emphasizes politics as societys centre suffers from a cognitive or socioepistemological deciency, and it lags behind a state of reexive adequacy to the plurally differentiated nature of modern society. Such theory omits to acknowledge the contingency and multiplicity of the rationalities which steer individual systems in modern society, and it ignores the fact that plurality and distinction, not structure and convergence, are the sources of cognition in a systemically differentiated society. Such theory constructs society as political, and as reliant on central legitimacy, because it selectively and counter-factually imputes a uniform and quasi-ontological substrate of human reason, human character and human interest to all modes and forms of societal communication. This imputation,

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then, paradoxically, allows theory to assume that even under the conditions of extreme societal pluralism one privileged social system (politics) can translate the contents of this human substrate into publicly representative power and, in consequence, legitimately extend its power, as sovereignty, to dominate and to determine all different systems and different social rationalities. At the heart of theory which commits itself as political or politological, in consequence, is a rather facile sequence of theoretical selections and options which enable theory to insinuate an ontologically or anthropologically generalized political rationality into society, and then to deduce societys necessary structure from this insinuation. Only theory which thinks sociologically, however, is fully able to understand the decentred place of power and politics in modern society (1993b: 255), and to prevent the political collapsing or de-differentiation of society into simplistic generalizations of its content. Sociology, thus, is dened by Luhmann as an interpretive methodology which abdicates all reliance on foundational ontology and which, as a result, eradicates all traces of acute political emphasis from societal analysis. A Societal Political System? Despite Luhmanns intended differentiation of the place of politics in society, however, there are certain aporia or critical ruptures which appear in his political sociology. These ruptures at times speak against his restriction of politics and his resolute de-politicization of social communication, and, as a result, they also throw quite distinct light on the question of his relation to Schmitt. First, critical interpreters of Luhmanns work might identify certain internal contradictions in his conception of power, and of its social functions, and these contradictions might be seen to detract from his wider analysis of the political system. Clearly, Luhmann sought, against Schmitt, to promote a fully sociological account of power. To this end, he denied that society in its totality is organized around power; he denied that society, in its diffusely pluralistic shape, can assume a distinctive and convergent density around political contents or decisions; and he denied that legitimacy in a political system can constitute or underpin the legitimacy of other social communications. The legitimacy of power, therefore, is the political systems paradoxical self-description as legitimate, and this legitimacy is neither produced by, nor does it emphatically affect, the communications of other social systems. Nonetheless, this aspect of Luhmanns theory remains one of its more precarious conceptual components, and even a strictly immanent reconstruction suggests certain ambiguities in his restriction of power to the political system. At times, for example, Luhmann expressly acknowledged that other social systems re-route power from politics into their own communications. The legal system, for example, has a distinct and integral coupling with power, and it conserves a store of political power as the basis for its injunctions and permissions (1988a: 94). In fact, all other systems intermittently engage in a parasitic relation to the political system,

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and they utilize its power for the enforcement of specic decisions or vetoes (2000: 69). It is specically characteristic of relatively pacied societies that they evolve political systems which, because they are differentiated and self-stabilizing, are able to open up, develop and cultivate a plurality of distinct foundations of power. In such pacied societies, in consequence, it is perfectly conceivable that power might attach itself to the free labour contract, through which qualied social agents exercise power in monetary negotiations relevant to their employment or their careers, or to key positions in societal associations. In this respect, therefore, modern society usually permits an ination of societal power beyond the limits of the political system, and it allows a generalized increment of power in society as a whole (1970a: 160). In addition to this, moreover, Luhmann also periodically altered his narrowly political concept of power by dening organizations (including professional bodies, groups with select membership, institutions, etc.) as mechanisms which serve the differentiation and the distribution of power. As it is mediated by organizations, then, power becomes relevant for all society, and its focal concentration around the competences of sanction and decision in the political system is counterbalanced (1987b: 122). On these grounds alone, it might be suggested that Luhmanns interpretive apparatus struggles to limit power to the political system, and it implicitly accepts that power (perhaps uniquely among the different social systems) is a universally relevant medium. If viewed from a more external perspective, however, Luhmanns work contains even more unsatisfactory moments in its account of modern power. From an external position, for instance, it might be asked why education, and the preferences articulated in education, are not construed as sites for the societal transfusion of political power. It might also be asked why religious rituals, and the modes of comportment favoured by these rituals, are not steered by, and in turn help to consolidate, political power. Likewise, it might also be asked why the orientation of society around certain economic practices is not seen as determined by acts of coercion which cannot be de-coupled from political power, and thus as enacting and supporting prerogatives which can only be properly understood as political. In each of these instances, Luhmann would be constrained to argue that communication in education, religion and the economy is solely determined by the codes of these systems, and that these are neither formed by, nor formative of, political power. It is at least arguable, however, that even in the most polycentric societies power is distinct from other media of communication: that it is applied and reinforced across systemic boundaries, and it gives rise to what might be called structural knots, or cases of concentrated over-layering, at the interface between different systems. It is also arguable, therefore, that the relative neutrality of power in Luhmanns sociology is sustained by a rather puristic denition of what power is, and this could be productively counteracted by a more micro-analytical approach to the contents of communications other than politics. If this critical objection is accepted, it might be argued that politics cannot evolve to the level of differentiation which characterizes other systems, and that modern society cannot be accounted for without sporadic moments of eminently political convergence and inter-systemic density. Indeed, it might also

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be argued that in these moments of concentrated overlayering between politics and other systems the political system sustains its legitimacy, in its own distinctive form, through the transmission of power into other systems and through the consolidation of its power by other systems. If this is the case, it can surely be doubted whether the political systems communication about itself as legitimate can be reduced to the internal semantics or self-descriptions of a fully differentiated system. Even in the terms of his own theory, in fact, it might be claimed that Luhmann was not fully able to demonstrate why power in the political system should not be viewed as a supreme or even sovereign power, which nally regulates, decides over, and is sustained by other, inferior forms of power. As discussed, although opposed to hierarchical or dualistic views of the political system, Luhmann insisted that the primary function of the political system is that it makes collectively binding decisions. If these decisions are collectively binding, it must surely be presumed that they articulate communications across systemic boundaries, and they construct and provide central regulation or resolution in those instances where society as a whole needs power. Luhmann was notoriously oblique in dening the conditions under which society has a requirement for generalized power, but it might be surmised that he saw the application of generalized power as necessary in those situations where communications occurring at the intersection between one or more social systems become diffusively problematic and generate disabling perturbations for communications in all society. This need for general power might occur, for example, if two systems confront and communicate about one issue in irreconcilably divisive manner, and if this issue cannot be resolved, without an external construction, in a manner satisfactory for both systems. An example of this might be a case of dispute between religious and educational institutions over the content of pedagogic material, in which a political decision might be required to clarify points of policy and to re-mark the line of differentiation between religion and pedagogics. Similarly, a need for general power might occur if a problematic communication in one system means that this system forms a dense coupling with a different system, such that this coupling impedes the communications of one or both of these systems, meaning that the relation between these systems can only be normalized by means of a third systems intervention. An obvious example of such a situation might be a case of widespread judicial corruption, introducing monetary values into the law and causing legal communications to become unreliable and to resonate in alarming or destabilizing manner for communications in the political system and other systems. In such a case, a political decision might be needed to regulate or remove the corruption, and to restabilize legal communications around their own proper coding. It might even be possible to imagine a case of mass impoverishment induced by specic practices or strategies in the economy, causing economic communications to become unsettling for the law, for medicine, or even for education, and so demanding palliative political intervention in the economy. It might be presumed, therefore, that the enforcement of a collectively binding decision is most likely to be required in circumstances in which society in general

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is adversely affected by problems evolving in one system and extending beyond the boundaries of this system, and in which all society, or at least a number of societys systems, enter a state of real or possible de-differentiation. Society needs general political power, in other words, where different social systems coalesce around problematic couplings, where these couplings render unstable the observational capacities through which these different systems construct their own differentiated environments, and where they risk undermining the plurality and differentiation of society in its totality. This, intriguingly, raises the question of whether, on Luhmanns account, there are moments in societys communications about itself where a widespread and endemic disruption (or exception?) can occur, and where only a generalized political decision is able to reconstitute conditions of normalcy. This raises the further question, then, of whether the problems evolving in systems other than politics, and nally needing general political resolution, are not in themselves intrinsically political. These problems dramatically politicize the systems in which they originate, they generate political problems for all society, and they ultimately become constitutive objects of determinately political irritation, communication and decision. This, moreover, raises the additional question of whether a political system is not nally required to legitimize itself by deciding on political problems emerging in other areas of society, and of whether its legitimacy is not factually dened by its ability to mark itself as a centre of higher (or highest) rationality in society. The supreme function of Luhmanns political system, in any case, is that it can re-differentiate (or perhaps de-politicize) other systems of society, and that it can counterbalance the unnerving politicization of other systems by applying to them the resources of its own political rationality. To do this, following Luhmanns own cognitive scheme, the political system must have the ability to construct for itself ways in which the rationality of one system might perceive communications in the rationality of a different system, and it must be able to manufacture solutions to social problems which are simultaneously commensurate with the rationalities of a number of societys distinct systems. Politics, thus, must under certain circumstances project an approximately total image of society and its rationalities, and it must be able to explain and legitimize its trans-systemic interventions by referring to this image.30 This leaves the paradox for Luhmann that in order to maintain societys differentiation politics must sporadically de-differentiate its own relation to other systems of society, and it must deploy cognitive resources which are adequate to the internal communications of a plurality of different social systems. For this reason, Luhmanns account of society as un-powered is not always sustainable, and his work cannot suppress the claim, rst, that politics has an occasional primacy among social systems; second, that it possesses rational resources which cannot be restricted to one set of systemic functions; third, that there are moments in which society as a whole communicates politically about itself and, nally, obtains heightened stability or renewed normalcy because of the political system. In such moments, most crucially, the ability of the political system to demonstrate competence in de-differentiation is a condition of its legitimacy: this legitimacy is generally constitutive of the stability of all society,

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and it presupposes that the political system can explain its acts as legitimate to a number of social systems at the same time. The Re-entry of Politics The debate about the relation between Luhmann and Schmitt might thus, on these three counts, be substantially recast. Earlier analyses of this question suggested that Luhmann tried, but failed, to suppress a Schmittian afliation. In fact, it is closer to the truth to assert that Luhmann attempted to eliminate all Schmittian, or indeed all emphatically political, elements from his sociology but that society, even in the condition of differentiated modernity which Luhmann imputed to it, evaded description in such radically anti-Schmittian categories and persisted in its dominant political structures. For all his ambition to conceive society merely as society, without any necessary ontological or political substructure, the suspicion presents itself through Luhmanns work that society cannot be stripped of its eminent politicality, and that it cannot be rendered so pluralistically diffuse that it relinquishes all universally relevant (political) conicts and all universally relevant (political) appeals to rationality. The story of the relation between Luhmann and Schmitt, therefore, is not the story of a furtive debt or of a covert alliance. It is the story of a recurrent interruption of Luhmanns thought by immanent contradictions, many of which are caused by his attempt, contra Schmitt, to depreciate societys politics. Underlying the political aspects of Luhmanns sociology is the submerged sense that society is never just society, and, where its differentiated systemic normalcy is threatened, it is always capable of momentarily conguring itself around its politicality and its general demands for legitimacy. In these respects, it is arguable that Luhmanns work might have beneted from a less elusive confrontation with Schmitt, and even that Schmitts theory might propose persuasive alternatives to some of his more unstable conceptions. For instance, Schmitt would evidently have been in a position to explain to Luhmann that sociological analyses of power have the specic merit, against purely normative theories, that they comprehend the ways in which power is contested throughout society and they demonstrate that no aspect of social communication can be viewed as neutral or irrelevant for power.31 Although Luhmann saw his own theory as consummately sociological, therefore, Schmitt might well have objected that his idea of sociological method was excessively obligated to positivistic constructions of society, and it was refracted, in neoKelsenian style, through a lens of neutrality and benign political indifference, and so it remained a particularly self-deluding outgrowth of liberal theoretical ideals.32 Despite his self-denition as the theorist who liberates sociology from political metaphysics, Luhmans work might have been described by Schmitt as a reinstantiation of liberal metaphysics, which denes neutrality, pacication and legal order as quasi-natural features of modern society.33 As an ironic adjunct to this objection, Schmitt might even have pressed Luhmann to confess his own

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political sympathies, and he might have asserted that, as a neo-liberal, Luhmann in fact deployed the banner of neutrality to introduce concepts, such as differentiation, depoliticization, polycentricity, which factually describe a preferred political and economic condition, and which thus possess far-reaching (or even total ) implications for socio-political administration. Clearly, in any case, Schmitt would have argued that Luhmanns theory bears witness to the impossibility of non-politics, and he might have challenged it to permit its underlying motivations to be interrogated as part of its theoretical content.34 In addition to this, Schmitt might also have made the more powerful point that Luhmanns work provides unintentional proof that societies, even if they are construed in acentric perspective, are occasionally forced into systemically overarching descriptions of themselves. That is to say that all societies periodically produce volatile communications which cross and connect some of the many rationalities of a pluralistic society and require convergent responses within all, or at least some, of this societys different systems. Communications of this type evolve where the customary neutrality or self-regulating normality of societal exchanges become overladen, or where one system begins to be annexed to the directives of a different system. These communications then trigger resonances or resistances across all society, they create momentary knots of communication between normally differentiated spheres of practice, and they concentrate around the resources of the political system, which ultimately denes and legitimizes itself by its ability to resolve them. The attempt to eradicate political primacy from society is therefore not plausible. None of this is meant to imply that, in a projected dialogue, Schmitt would have nothing to learn from Luhmann. On the contrary, Schmitt might be forced by Luhmann to acknowledge that his dream of a reination of power into an integrally sovereign and fully exclusive account of societys necessary shape is badly outdated, and was actually already absurd in the 1920s. He might be made to see that his claim that the presence of one will or one fusion of many wills is an underlying precondition of a legitimately sovereign political order is derived from a redundant set of concepts. Most importantly, he might be obliged to appreciate that modern political systems are embedded in extremely complex and increasingly international societies, they maintain interfaces with innumerable modes of highly pluralized and contingent societal communication, and their legitimacy is not always sharply transparent to simple plans, choices, wills or mandates. Schmitts suggestion that the terms of legitimacy are so strict that a society can only integrate one exclusive vision of its necessary order, and that the stability of all areas of societal exchange depends on their constant reference to this one vision,35 is thus of little value in examining modern political experience. Most importantly, Schmitt might have to accept Luhmanns view that politics is always the politics of a plural society, and it can no longer be distilled into an apparatus of dualistically distinguished institutional control. Nonetheless, Schmitt, though perhaps conceding the absurd character of his monadic xation of politics on the intensity of the will, might still carry the argument by explaining to Luhmann that no society can evolve to such a degree

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of differentiation that it evades unied experiences of politics, that it renounces all structural need for legitimacy, or that it loses its susceptibility to political crisis. Indeed, Schmitt might even use Luhmanns own vocabulary to persuade him that a condition of societal differentiation and pluralization does not produce or require a less emphatic politics it in fact requires a more emphatic politics (1932a: 37). Modern politics, he might argue, obtains its intensity in those exceptional instances where the intricately and plurally differentiated fabrics connecting societys systems begin to simplify themselves, and, specically, where one system begins to produce communications which are not reconcilable with the pluralistic format of society as a whole and reduce the freedoms constitutive of societys modern form. Under such circumstances, a society might be pressed, if not to project a sovereign denition of its emphases and dispositions, then at least, across its different systemic ssures, to articulate and defend itself as political, and to provide politically enforceable accounts of how the inter-environmental relations of society should be structured. Indeed, on this basis Schmitts assertion that the demand for legitimacy attaches to many themes, that legitimacy is a space of universally relevant contest, and that highest legitimacy attaches to a construction of the political which is able positively to offset rival visions of politics, appears as a crucial corrective to (and even as a paradoxically intuitive re-description of ) Luhmanns view of legitimacy as a marginal paradox in societys politics. As he devoted so much time to showing why he was not like Schmitt, Luhmann might have been at a loss to nd a response to a Schmittian critique of his work. Of course, he might have observed that this critique, like all critique, is merely theorys communication, and it does not require an answer, except for its own auto-communicative perpetuation. However, if Luhmanns theory can communicate (in a rather old-fashioned, discursive sense of the word) it might be forced to accept the view that societal pluralism depends nally not on the end or de-emphasis of politics, but on its persistence. It might also be forced to concede that under conditions of differentiation legitimacy is not an entirely diffuse or fading resource, and that, at least intermittently, differentiated societies perhaps most emphatically require inter-systemically convergent (or political) accounts of their legitimacy. Notes
1 Luhmann was generally immune to political invective, but he was very careful to dene the features of his thought in their relation to Schmittian ideas. In a recent important historical work, it has been observed that Luhmann hardly ever mentioned Schmitt in his vast oeuvre. This view is surely sustainable, although a little overstated. However, this description neglects to mention that Luhmann conducted a debate with Schmitt, which, although incorporating important direct references to his work, was articulated as a process of theoretical renement and implicit selfpositioning, not in a polemic or discursive attitude (Mller, 2003: 198). 2 This view was expressed in an interview in Italy in 1980. It is quoted here from Wirtz (1999: 1756). This essay is the most extensive alternative treatment of the theme

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of this article. Although it contains many useful insights, it is committed to a cultural-analytical interpretation of Luhmanns thought and tends to interpret his writings as literary texts, not as constructive political models. It therefore moves in a theoretical terrain which is distinct from that to which my argument refers. For a comparison of Luhmanns binary construction of the political system with Schmitt, see Beyme (1991b: 238). Schmitts view of decisions and their role in generating legitimacy changed throughout his career. In his works of the early 1920s, he set out an exceptionalist theory of legitimacy, arguing that the personal gure of the sovereign is responsible for making the decisions which unite all political resources in the state, and so secure its legitimacy. In his works of the later 1920s, he altered this claim, and argued that a constitution could also embody a concrete collective decision and so underwrite the legitimacy of the state (1928: 238). However, the element of decisionism in his work remained relatively constant until 1933. Close to Schmitt, in his earlier works Luhmann argued that executive decisions in the political system serve to stabilize and unify the system, and to remove disruptions from its communication (1966a: 114). However, he also stressed, particularly in later works, that decisions are articulations of the contingency and paradoxicality of the systems positive foundations, and they confer unity on the system only as a systemically internal construct of the system, not as expressions of a determinate will (1993a: 310). Against Schmitt, he particularly decried the idea that decisions result from subjective arbitrariness or authority of position (1993a: 295). For an early formulation of this view, see Narr (1969: 17980). See also Narrs use of Karl Lwiths term, initially employed to characterize Schmitt, to describe Luhmann as an occasional decisionist (1974: 63). For an association of Luhmann with Schmitt in this respect, see Mnstermann (1969). Mnstermann even saw a recourse to Carl Schmitts concrete-order thinking in Luhmanns positivist/neutral account of legitimacy (1969: 330). Johannes Weisz also asserted a similarity between Schmitt and Luhmann. But he was careful to distinguish clearly between Schmitts anti-parliamentary attitude and Luhmanns procedural or ctionalist account of legitimacy (1977: 82). In his earlier work, Luhmann opted for a proceduralist model of legitimacy which construed the legitimacy of political decisions as determined by the institutionalization of procedures which confer unquestionable security on decisions by creating role-playing and integrating environments in which people become accustomed to accepting decisions as legitimate (1983: 247). In his later works, then, he argued that legitimacy in the political system is simply the self-reference or the plausible self-description of the political system, and that the changing institutional forms of governments claiming legitimacy reect the evolving displacement of the paradoxical contingency of powers exercise into plausible semantics or self-descriptions (2000: 31971). On this, see the integration of Luhmanns functionalism, and the simultaneous critique of its apparent decisionistic or elite-democratic elements, in the neo-Marxist theories of legitimacy set out by Habermas and Claus Offe. In his earlier works, Habermas implicitly saw Luhmanns theory as a technique for decoupling the administrative system from the legitimatory system, and for concentrating the political system on the objectives of ideological planning (1973: 989). In his classically controversial essay on Luhmanns alleged sympathy for technocracy, Frieder Naschold also accused Luhmann of fusing technocratic and elite-democratic

3 4

5 6

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10 11

12 13

14

15

principles to support his model of legitimacy. He argued that Luhmann deployed an extremely reduced concept of democracy, which restricts the functions of democracy to the execution of prescribed purposes and routinous programmes, and as a result of which membership participation is limited to the periodic election of leadership groups (1968: 505). For a wider analysis of the relation between technocracy and neo-conservatism, which implicitly places Luhmann in the peripheries of conservative theory, see Saage (1983: 235). On early accounts of the relation between Luhmanns sociology and Gehlens functionalist theory of complexity reduction as institutional alleviation (Entlastung ), see Maciejewski (1972: 153) and Schmid (1970: 208). For later important commentary on this, see Beyme (1991a: 1718). For Schmitts general impact on technocratic thought, see Mller (2003: 802). Habermas also clearly associated Luhmann with Schmitt. For this point, see the rather self-serving and rhetorical essay (Habermas, 1975: 242). On this, in turn, see: Willms (1975: 55). For later reections on this, see Habermas (1986: 181). Luhmann was keen to distance himself from this brand of neo-conservatism, and he argued that anxieties about ungovernability, crisis of state and failure of state were merely dramatized elements of the political systems own communication (1981b: 145). Despite this, however, his critique of the policy of self-overburdening incorporated in the welfare state, and his insistence that a more restrictive understanding of politics would be more appropriate to the states capacities, were surely not far removed from more standard views in the ungovernability debates (1981b: 155). For a more conventional perspective on the theme of ungovernability, see Hennis (1977). For what is, in my view, the most incisive earlier commentary on Luhmanns political stance, see Nahamowitz (1988). For background, see Altvater et al. (1979) and Spieker (1986: 101). The sovereignty vested in the President of the Weimar Republic, Schmitt argued, forms the state as a counterweight to the pluralism of powerful social and economic groups (1931: 159). Representation, as is well documented, is a key concept in Schmitts theory. Representation, he argued, consolidates government around enduring political ethics, and it allows all society to project and be unied around certain positive principles, stabilized in the state. States founding themselves in representative principles obtain legitimacy through the metaphysical representation of something existential or of an invisible Being, which is higher than the state itself, and which is reected in the institutional hierarchy or authority of the state (1928: 209). See on this point: Bielefeldt (1994: 58) and Mehring (1989: 55, 61). Against this concept, however, Luhmann observed in lapidary style that under conditions of social complexity there no longer exists a representation of society in society (1984b: 42). Luhmann eventually responded to accusations that his legal positivization was a covert brand of decisionism by implying that the decisions in law and politics form a reservoir or memory which invariably conditions further decisions, so that no decisions can ever be fully arbitrary or dependent on individual power of assertion (1995: 39). The decision, Schmitt argued, if viewed in normative terms is born from nothing, and it as this spontaneous other-than-nothing that it generates legitimacy (1922: 38). Similarly, Luhmann explained that the political system must itself spontaneously produce and reproduce the decisions of which it consists, and that its legitimacy depends on this primary decisiveness (1981b: 33).

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16 Luhmann therefore argued that law is validated by the strength of a decision (1970b: 180). On this point, see also Wirtz (1999: 180). 17 Related to this point is the argument in Heidorn (1982: 87). 18 There were nuances and vacillations in Schmitts conception of totality. In the early 1920s he argued that the political is always total and that the decision about what is political is always also total (1922: 7). Later, he was careful to differentiate the total state, as a fully representative and decisive executive, from the total state as a socially interventionist party state, exemplied by the NSDAP. At one point, for instance, he denounced the total parties or the activist parties seeking to dominate the state in late-Weimar politics, but he defended the other total state: that is, the state capable of representing a total and pervasive ethic of state, above the particular elements of civil society (1958: 3623). 19 On the decision as the structural paradigm of contingent modernity, see Greven (1999: 14). 20 Schmitts view on the substantial foundation of legitimacy changed markedly over the different phases of his career. For his claim that national unity is a precondition of legitimacy, however, see Schmitt (1928: 234). 21 In his earlier work he identied the administration as a social system in its own right. It is only in his later works that he dened it unambiguously as one subsystem of politics (1973: 8). 22 Schmitts functionalist tendency is usually seen to be a product of his occasional theoretical closeness to Hans Freyer. Freyer argued that modern political systems are inevitably structured around bureaucratic decisions or plans, and the legitimacy of these decisions is not founded in any anthropological facts of human reason, character or interest (1933: 22). 23 Hence Luhmanns occasional proximity to neo-corporate ideas of democratic order (1987a: 160). 24 This is a contentious view on Luhmann, which he would surely see as gravely simplifying his perspectives. However, Luhmann clearly argued that most individual problems of political regulation must be transported from the legislature into the executive, so that the administrative functions of the executive can acquire autonomy and latitude in processing these problems (1966b: 294). 25 For the classic formulation of this claim, see Schelsky (1965). Schelsky argued here that democracy as government by consensus and common normative will-formation has been supplanted by government as technocratic reaction to objective exigency (1965: 4556). 26 Recently, both in Germany and elsewhere, Luhmanns social theory has experienced what might be termed a second generation of interpretive reception. The major works in this reception have, though far less critically than the rst generation, once more compared his sociology with Schmitts work. This line of interpretation, exemplied by William Rasch, has assessed Luhmanns work, surely accurately, as a pluralistic doctrine of societal de-centration, which dismisses the Schmittian claim that there exists a sovereign politics in society, able to generate rational insights or decisions for all spheres of societal exchange (2004: 44). However, rather than seeing Luhmann as diametrically opposed to Schmitt, Rasch argues that they overlapped, rst, in the fact that both ascribed a distinctive autonomy to politics among other communications, and, second, in the fact that both insisted that politics must preserve a structure of difference (either between politics and other social systems, or between one sovereign polity and another) in order for it to produce its legitimacy. In this second wave of reception, therefore, Luhmann and Schmitt are interpreted as

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27 28 29

30 31 32

33

34 35

convergent theorists of radical difference, contingency and conict, both of whom recognize that human history and society are not driven by a unitary dynamic of progress or reconciliation, but are irreducibly pluralistic and shaped by multiple battles for autonomy (2004: 456). Despite this imputed symmetry, however, this reading of Schmitt and Luhmann is only able to maintain a rather tenuous association between them, and it fails adequately to foreground the fact that Schmitt saw the autonomy of the political system as founded in its primacy over all over social exchange, whereas Luhman viewed the autonomy of the political as founded in its equality with other systems. For a generally excellent alternative recent account of Luhmanns political theory, and for discriminating reections on its relation to Schmitts decisionism, see Lange (2003: 146). For further recent comparisons of Luhmann and Schmitt, see Nassehi (2002: 45) and Stheli (2002: 255). Luhmann saw the traces of 1968 as primarily evident in an annoying increase in the stubbornness of individuals, who now feel entitled to interpret private grievances as political themes (1987a: 152). Rightly or wrongly, this expansive politicization is still celebrated as a decisive achievement of the generation of 1968. See, for example, Eley (2002: 11). The hostility to welfare democracy remained a xed component of Luhmanns work from the beginning to the end of his theoretical life. Even his posthumous works fulminate against the extension of the concept of democracy to include performances of provision (2000: 364). At one point he stated clearly that most systems remain ultimately reliant on politically centred power (1988b: 304). All society is political, Schmitt argued, and every exchange in society is the political instrument of people engaged in concrete conict (1932a: 67). Schmitt famously reviled Kelsens positivist theory of pure law as a view which entirely misunderstands the relation between law and power, and between law and legitimacy. For Schmitt, neutral accounts of law reect a metaphysical system of liberalism, imputing natural harmony and neutrality as laws inalienable precondition. These accounts are not appropriate to analyzing state forms under the conditions of social plurality and intense material antagonism which dene modern societies (1923: 45). One key aspect of Schmitts theory is the belief that liberal governments assume that neutrality and pacication are the natural condition of human coexistence. On Schmitts view, however, the opposite is factually the case, and the liberal belief in neutrality and probable social harmony is in fact an element of liberal metaphysics (1923: 45). Excellent on the insistence on empirically grounded political commitment in Schmitts technique of concept-formation is Seitzer (2001: 26). A recent helpful view on this is also provided by Stirk (2005: 9). Hence his assertion that only plebiscitary legitimacy is able to hold all disparate sectors of a modern democracy together (1932b: 87).

References
Altvater, Elmar et al. (1979) Vom Wirtschaftswunder zur Wirtschaftskrise. konomie und Politik in der Bundesrepublik. Berlin: Olle & Wolter. Beyme, Klaus von (1991a) Ein Paradigmenwechsel aus dem Geist der Naturwissenschaften: Die Theorien der Selbststeuerung von Systemen (Autopoiesis), Journal fr Sozialforschung 31(1): 324.

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Chris Thornhill

is Professor of European Political Thought at the University of Glasgow. He is the author of a number of books and articles on political theory and political sociology, socio-legal theory, and the history of political thought. His most recent book is German Political Philosophy. The Metaphysics of Law (Routledge, 2006). Address: Department of Politics, Adam Smith Building, 40 Bute Gardens, University of Glasgow, Glasgow, G12 8RT, UK. [email: c.thornhill@socsci. gla.ac.uk]