Carl Schmitt on the Ethics of Legal Process

2 posts

Throughout Schmitt's work one can find references to an internal ethic of modern legality that bears a striking resemblance to the ethic of internal process articulated by Lon Fuller. For instance, in Schmitt's 1943 speech on "The Plight of European Jurisprudence" we find:

[Jurists] fulfill a task which no other human can fulfill. We cannot choose the changing rulers and regimes according to our own tastes, but in the changing situations we preserve the basis of a rational human existence that cannot do without legal principles such as: a recognition of the individual based on mutual respect even in a conflict situation; a sense for the logic and consistency of concepts and institutions; a sense for reciprocity and the minimum of an orderly procedure, due process, without which there can be no law. That we defend this indestructible core of all law against all destructive enactments means that we maintain a dignity which today in Europe is more critical than at any other time and in any other part of the world.​

This ethic only emerges in the wake of the credal civil wars in Europe and the subsequent Peace of Westphalia:

European jurisprudence is the first-born child of the modern European spirit, of the "occidental rationalism" of the modern age. The modern natural sciences followed later.​


My response :

At least in Bacon's England, it is more proper to say that Natural Science itself evolved from legal process. This is the essence of Bacon's insight in the Post Nati case: That there is a rhetoric of Science, which involves first Discovery or Invention (the first canon of Rhetoric), then an arrangement and selection of argumentation -- induction -- and finally its Memory and Presentation before the scientific tribunal.

Law does not gain a rational basis, in Bacon (or his student Hobbes, nor I suppose Hobbes' commentator Schmitt...) . Rather, Science acquires a legal title, through suitable process -- named, and that not innocently, 'The Scientific Method'. Method is, of course, a loaded term of Ramism, in the Ramists Descartes, Milton, or Newton.

See also my essay: .