Carl Schmitt Ate My Law School

The origins and future of two-tier justice

One day humanity will play with law just as children play with disused objects, not in order to restore them to their canonical use but to free them from it for good.

-Giorgio Agamben

The other day one of my children asked me what I feared most. I thought for a moment and said, ‘HMRC’. But then I reflected a little further and said, ‘the final victory of the legal realists’. It took some time for me to explain these concepts. Her response was that in her case it was the school ghost, a spectral clown who lives down a drain (possibly inspired by somebody’s older sibling having watched the film It). I think my answers were scarier.

The final victory of the legal realists - the meaning of which I will explain shortly - has recently been shown to be closer than it might have once appeared. Most obviously, those of us in the UK have been treated to the spectacle of a public spat between the government and the Sentencing Council, a quango set up in the dog days of Gordon Brown’s government to ‘promote greater transparency and consistency’ by setting guidelines for judges to follow when handing down a sentence in a criminal trial. The Sentencing Council had announced the intention to introduce guidance on so-called Pre-Sentence Reports or PSRs, which allow a judge to have access to information about an offender with respect to his or her ‘dangerousness and risk of harm’, the ‘nature and causes’ of his or her criminal behaviour, and his or her ‘personal circumstances and any factors that may be helpful to the court in considering the offender’s suitability for different sentences or requirements’.

The guidance in question stipulated that PSRs will ‘normally’ be requested and considered if an offender is, among other things, a woman, transgender, from ‘an ethnic minority, cultural minority, and/or faith minority community’, and so on. The implication would appear to be that PSRs, which in the Council’s own words are often ‘pivotal in helping the court decide whether to impose a custodial or community order’ (i.e. whether to send somebody to prison or not) should be used for members of some groups but not others. To put it more bluntly, if you look at the criteria suggested by the Council, PSRs will in effect be provided as standard for any offender except white males over the age of 25 who do not have a disability of some kind. The ‘personal circumstances’ of those villainous people alone, we can infer, do not merit close scrutiny when it comes to what is ‘pivotal’ for other groups in deciding whether to throw somebody into jail.

The Sentencing Council have been told off for this and put on the naughty step by the government, but it is far from the only recent disturbing illustration of the extent to which the judiciary broadly conceived has shown itself to be, let’s say, rather economical with its commitment to neutrality. The other day, for example, Lord Carnwath, a former Justice of the Supreme Court, gave a speech in which he advocated the ‘constitutionalisation of environmental protection’ (I wrote an extended piece on this for the Daily Sceptic), declaring himself to be of the view that it should not be lawful for politicians to make policy that conflicts with ‘scientific reality’ as assessed by, er, judges.

Then there is the bizarre spectacle of what has been going on for some time in the Asylum and Immigration Chamber of the First-Tier Tribunal and the Upper Tribunal, where judges have been waging a low-level guerrilla war against deportations and on immigration restrictions more generally. The most infamous example of this is perhaps the case of IA and Ors v Secretary of State for the Home Department, in which it was held that the absence of a resettlement scheme for Palestinian refugees into the UK did not preclude a group of Palestinian refugees from resettling in the UK using a Ukrainian refugee resettlement scheme, because the case turned ‘on its own merits and in light of its particular facts’. But there is now a cottage industry of journalists reporting on these sorts of cases - often slightly misleadingly described, but clear enough in their import.

(And this is not even to mention the devolution of the Employment Tribunal into a glorified enforcer of the norms of ‘current thing’ bourgeois political correctness, a subject which I will be writing more on in the coming weeks.)

What is going on? Why is it the case that law now seems to be being applied in a nakedly subjective and partial, not to mention politicised, way? The answer is that what we are now seeing is the consequence of around a century of corruption of legal education which began in earnest with the legal realists of the 1920s and 1930s, and accelerated when their intellectual progeny became truly embedded in university law schools from around the 1960s onwards. We have now reached the point at which essentially all judges - who almost by definition will have gone to law school at some point - have, consciously or otherwise, imbibed basically realist ideas during their training. They have marinaded in the idea that law is a fundamentally political phenomenon. And we therefore stand at the cusp of something genuinely frightening - a gradual but inexorable further politicisation of law until the distinction between law and politics itself begins to blur and disappear.

What is legal realism? The best way to understand the phenomenon is through two thinkers from either side of the Atlantic, Jerome Frank and Carl Schmitt. These men both stood at the apex of older movements in legal philosophy that had reacted against what was often referred to as ‘formalism’ or ‘mechanical jurisprudence’. During the latter half of the nineteenth century in both America and Germany dissatisfaction had grown with the idea that law is a mere framework of neutral rules which can be, as it were, ‘mechanically’ applied to resolve a dispute as though by a ‘slot machine’ (to use Roscoe Pound’s term). In Germany Rudolf von Jhering and Julius von Kirchmann, and in America Oliver Wendell Holmes Jr. and John Chipman Gray, began to promulgate the idea that law was in fact purposive. It was supposed to achieve social outcomes, rather than just being a set of rules. It was not neutral, but oriented towards ends.

This position gradually evolved into what became known as ‘rule-scepticism’: the idea that law does not really consist of rules at all, but the decisions of judges (and, in the wider sense, legal professionals advising clients). Rules may exist on paper, but when the chips are down it is a particular human being who decides what they mean. This is because no rule can possibly be clear or comprehensive enough to cover all scenarios which arise. Rules therefore require interpretation. And the process of interpretation is willed - it is not mechanical, but intentional. What matters then is not the rules as such, but the intentions of the people who interpret them.

Since this is so, the realist argument went, it is a fantasy to imagine that there could be such a thing as neutral, objective, purposive, abstract, general rules. Rules have to be interpreted and human beings will be interpreting them, and since human beings themselves are not neutral or objective - they have their biases, values and interests - law itself cannot be neutral or objective, either. And since it is not neutral or objective, the argument naturally followed, it was useless to pretend that it was. It was more sensible and indeed mature to adopt the position that, since law is not neutral but is supposed to achieve social outcomes, the process of interpretation and enforcement should be more openly and unashamedly policy-oriented and indeed therefore political.

Jerome Frank and Carl Schmitt were the most extreme and (at least in Schmitt’s case, intellectually formidable) interlocutors for this idea in, respectively, the USA and Germany. Frank, a New Dealer, labelled the commitment to neutrality amongst lawyers a shameful relic of a bygone age - mumbo-jumbo or ‘legal magic’ which just served to fool judges into imagining that what they were doing was a-political. He layered on top of this a cod-Freudianism, claiming that the desire to resolve disputes through appeal to rules was akin to the desperate pleas a child makes to a father to resolve an argument with a sibling. Better, he suggested, to be a grown-up about things and embrace the political nature of law. Since all that matters is the judicial decision and judicial decisions are inevitably intentional and purposive, why shouldn’t judges just openly embrace social policy? Why should they try to be neutral when it’s not possible to be neutral to begin with?

Schmitt, a far more serious thinker, put the point more portentously and philosophically. His claim was that what mattered ontologically in the application of the law was the act of judging, not rule-making. The law does not exist in the form of rules - the rules can say whatever they want - but in the form of their interpretation and enforcement. And these are acts of will, not the mechanical or rote application of principle. The heart of a legal system, in other words, is not rules, but authority: the power, as it were, to determine how rules are to be interpreted and enforced - and ultimately whether they are to apply at all. Hence, to cite his famous aphorism, ‘Sovereign is he who decides on the exception’ - the sovereign being the authority who determines when the law has effect and when it doesn’t, and, by implication, how it applies and to what ends.

For Schmitt, then, the ideal of the liberal rule of law - impersonal, general, objective, neutral, abstract - was a delusion. But, even worse, it meant that liberalism was completely unequipped to deal with genuine crises or, for that matter, determined enemies who understood how to wield authority and will to achieve political, and hence legal, victory. It was this contempt for the idea of liberal law - mirrored perfectly in the Nazis’ contempt for liberal democracy as such - that allowed Schmitt to provide the intellectual justification for the effective destruction of the Weimar constitution, achieved essentially through the infamous Enabling Act of 1933.

The fact that FDR’s warm and cuddly sidekick, Jerome Frank, and Hitler’s stern, vindictive jurisprude-in-chief, Carl Schmitt, were grasping towards the same basic idea no longer tends to trouble legal scholars. (Nor has the fact that some other American legal realists - Roscoe Pound, for instance - were open admirers of Nazism.) Schmitt’s work has undergone a renaissance since the 1990s and he is now very widely cited and discussed, but this is no accident at all when one considers that his ideas foreshadowed much of what would come to be taught in university law schools across the developed world, particularly after the 1960s and 70s as critical legal theory - the intellectual descendant of legal realism - began to gain ground.

All that critical legal theory does is take the basic idea of legal realism - that law does not exist as rules but as application - and run with it in a Marxian direction. Law, if you recall, is never within the realist framing neutral or objective. It always protects some interest or other, and realises some end or purpose. It’s just a question of how honest we are about that. For the ‘crits’, the rule of law unconsciously or unwittingly always protects property, capital, social hierarchies, heteronormativity, and so on and so forth. And, knowing this and critiquing it, we can expose it for what it is and decide for ourselves whether we want rather for it to do something else - to more openly and purposively realise other goals (i.e., for the ‘crits’, redistribution, reverse discrimination, the ‘queering’ of norms, etc.).

It is by no means the case that all legal academics would these days call themselves critical legal scholars or, for that matter, legal realists, but the revolution which the realists set in motion was profound. While their caricature of what had gone before was always a myth - there have never been serious legal theorists who have ever been of the view that law just consists of the rote ‘formalist’ application of rules - they did usher in a fundamental break in thinking about the nature of law. Whereas before them law was understood to be a relatively fixed framework of rules that reflected some conception of natural right, morality or truth, after them it became understood to be a means through which policy is given binding effect. It became, as it were, a system of command, designed to bring about social change.

This is now simply the overwhelming view of legal scholars, and the dominant mode of thinking in legal academia, and has been for decades. And what we are seeing in our current moment, with the gradual but inexorable politicisation and subjectivisation of the judiciary and the legal profession more broadly, can be understood as the natural consequence of this transformation. We are now beginning to witness (and it really is just the beginning of the process) the results of the idea taking hold in university law schools that it is not rules that matter, but their application. Law is not about the rules, in other words, but outcomes. Law is political - it is another branch of politics, so to speak - and its entire raison d’être is to achieve political goals.

It is pure hyperbole to leap from where we are now, with an increasingly nakedly partial judiciary, particularly in the lower echelons at Tribunal level, yet with something that still quacks and waddles like a proper legal system, to the Khmer Rouge. But in closing it is worth considering where this process ends. Communist theory provided for the ‘withering away’ of law as communism itself ushered in a state of pure abundance, the idea being that in a society where resources are not scarce there would simply be no reason for law to exist at all. In practice most communist regimes, not having yet achieved communism as such, saw the necessity for law to continue to exist in the form of a judiciary, a constitution, legislation, and so on, although in all those societies it was very selectively and partially enforced - and used pretty openly for political purposes and to punish political and/or class enemies.

It was only under the Khmer Rouge that a serious attempt was made to abolish law altogether. Although Democratic Kampuchea had a constitution, it dismantled all of the trappings of the pre-existing Cambodian legal system - courts, judges, trials, legislation, and so on - and never replaced them. Instead, it created a police state in the purest sense: there were merely security centres where anybody who was identified as being an enemy of the state (there were a very large number of such people) was detained, interrogated, and usually then executed. Its constitution in other words was almost entirely a political one - it was unbounded by rules and designed purely to realise the purposes identified by the Standing Committee of the Communist Party of Kampuchea.

That such a situation should arise in the UK is not of course an immediate or even credible threat. But the fate of Cambodia under the Khmer Rouge should serve as a warning for what lies at the end of the long road that one starts walking when one adopts the view that rules do not matter and that law is a tool of politics. It takes a long time to travel down that road to Democratic Kampuchea, but it is a direct route - and somewhere along the way there is a way-station, a mid-way point at which law becomes so politicised that it starts to become impossible to untangle it from politics as such. We have by no means reached that point - the point of the legal realist ideal - yet we are edging slowly but surely in its direction. And it is what I fear when I study closely the behaviour of the judiciary from day to day in 2025.