Literal Nazi

The Very Model of a Modern Attorney-General

All law is ‘situational law’. The sovereign produces and guarantees the situation in its totality. He has the monopoly over this last decision.

Carl Schmitt, Political Theology

Those who govern us are characterised above all by their intellectual thinness. This is surprising when one considers that they tend to justify their own authority on the basis of their simply knowing better than the hoi polloi. You might think that people who by and large derive their claims on authority from their purported educational and intellectual gifts would be at pains to hone their minds to their sharpest. Not a bit of it, though: we are increasingly governed by people who do not seem to consider it important to think very hard at all.

This was all neatly demonstrated by a minor kerfuffle - not even enough, really, to qualify as a brouhaha - which broke out late last week when the Attorney-General for England & Wales, Lord Hermer, gave a speech to ‘reinforce the government’s commitment to international law’ at a think-tank, RUSI. In this speech, it was widely reported, he ‘compared the Tories and Reform to Nazis’ for wanting to withdraw from the European Convention on Human Rights (ECHR); umbrage was duly taken, with both Kemi Badenoch and Richard Tice calling for Hermer to be sacked for the remarks.

In Hermer’s partial defence, he really didn't compare the Tories and Reform to Nazis, except in the most tendentious of readings of what he actually said, and the outrage about him having done so was confected. But while we can let him off the hook with respect of Godwin’s Law, we cannot let him off with what is in its way a more serious charge: a failure to actually think about the words coming out of his mouth. This is, really, rather extraordinary in a man who is supposed to be chief legal advisor to the government - although, sadly, it makes him emblematic of the shallow pseudointellectualism that has become so prevalent in the upper echelon’s of Britain’s establishment.

The speech was at its heart about ‘progressive realism’, a daft idea that Labour’s head honchos have got into their heads by way of something they call ‘foreign policy’. The essence of the concept is, more or less, cakeism. It involves aligning a hard-nosed focus on the national interest with progressive goals, the idea being that Britain can somehow (try not to laugh) lead the world to a better future by demonstrating that all of the ‘current things’ Establishment figures believe in (Net Zero, open borders, AI running the show, etc.) are not just achievable outcomes but are actually better than any other alternative. The UK will become a progressive utopia and will demonstrate to other countries how wonderful life could be if they became progressive utopias too. And this will achieve the UK’s interests, because we are interested in sunshine, rainbows and lollipops, and a world in which every country is a progressive utopia will be one of sunshine, rainbows and lollipops in abundance.

I have written about this ludicrous idea before, here - suffice to say, it is the product of a political class in the grip of an almost clownish lack of seriousness. (And it is absolutely characteristic of them that even its terminology is wrong: there is a word in international relations for the alignment of the national interest with particular morals or values - it is called idealism. ‘Progressive realism’ is oxymoronic, with the emphasis firmly on the ‘moronic’.) But in any case the Cabinet seems to have committed themselves to it, and Lord Hermer’s speech was about the legal aspects of the concept. In short:

British leadership to strengthen and reform the international rules-based system is both the right thing to do and the only truly realistic choice.

Progressive realism, you see: Britain will become the best-in-class at abiding by the strictures of international law. And in so doing it will ‘lead’ other countries into doing the same thing, and thereby make the world a better and safer place. Aligning progressive ideals with the national interest, you see - sounds great, doesn’t it? Get Vladimir Putin on the blower.

The snag is that there are some annoying people getting in the way of the realisation of this ambition - knuckle-dragging recalcitrants who don’t believe in the ‘international rules-based system’ - and this is what leads us to Hermer’s purported ‘Nazi’ smear. The relevant section of his lecture is worth reprinting:

[O]ur approach is a rejection of the siren song, that can sadly, now be heard in the Palace of Westminster, and in some spectrums of the media, that Britain abandons the constraints of international law in favour of raw power.

This is not a new song.

The claim that international law is fine as far as it goes, but can be put aside when conditions change, is a claim that was made in the early 1930s by ‘realist’ jurists in Germany, most notably Carl Schmitt, whose central thesis was in essence the claim that state power is all that counts, not law.

It is, I suppose, easy to see how one gets from here to ‘Lord Hermer compared the Tories and Reform to Nazis’ for wanting to withdraw from the ECHR, but it is important to be fair to the man - he was doing something ever-so-slightly less crass than that. Rather, he can more fairly be described as insinuating that those who would withdraw from the ECHR (read: ‘abandon the constraints of international law in favour of raw power’) simply do not realise that their position has an intellectual similarity with that taken by Schmitt. It is not that they are themselves Nazis. It is that their ideas are disturbingly, albeit unwittingly, Nazi-adjacent. He was not so much labelling them ‘Nazis’, then, as he was implying that they are something more like useful idiots who would regret the consequences of their actions down the line.

There are many problems with Hermer’s characterisation of the situation - the most important of which, perhaps, being that there is nothing unlawful about denouncing (i.e. withdrawing from) a treaty. Article 58 of the ECHR indeed permits a High Contracting Party to do this with six months’ notice; denouncing the Convention is therefore perfectly in consonance with ‘international law’ if performed in the stipulated way. Hermer appears to confuse respect for international law, that is, with the taking on in perpetuity of specific international legal responsibilities; any lawyer with a few brain cells to rub together would know that those are two very different things. His argument is akin to saying that if one were to call one’s internet provider to cancel one’s contract with them, one would be ‘abandoning the constraints of the law of contract’. No: one would be precisely giving effect to the law of contract in exercising one’s contractual right to terminate.

And Hermer’s characterisation of historical events is in any case cobblers, of course. International law did not stop the actual honest-to-goodness Nazis first time around; American industry and Soviet manpower did that. The idea that if only we had had the ECHR in 1933 all of the unpleasantness of World War Two and the Holocaust could have been avoided is, to put it politely, absurd. One doesn’t constrain a belligerent regime through an ‘international rules-based system’; one does it through force, or the threat of it.

But what I would really like to focus on is the more, as it were, fraught matter of whether or not those in favour of denouncing the ECHR are behaving like Carl Schmitt. Because it is here that the pseudointellectualism really comes into its own, and here that Hermer reveals himself to be a true lightweight - incapable of self-reflection, and ill-equipped to properly understand what he has heard about on the internet and read about in the Grauniad.

I am going to go out on a limb, then: I doubt that Lord Hermer has read a word of Carl Schmitt’s. But in any event, if he has, he did not understand it. The reason why I say this is for the simple reason that Hermer’s speech was, entirely unknowingly, pure Schmitt from start to finish - it was not only far more Schmittian than the position adopted by those who seek to withdraw from the ECHR; it was even stated in terms that Schmitt would have recognised and indeed avowed.