Carl Schmitts Jews in Jurisprudence

By Tomislav Sunic

What follows is the English translation of the little known closing speech, given by Prof. Dr.

Carl Schmitt at a conference held in Berlin, Germany, on October 3 and 4, 1936. The conference,

sponsored by Reich Minister Dr. Hans Frank, was attended by hundreds of German legal

scholars, law professors and political scientists, most of them affiliated with the National

Socialist regime. The speeches and minutes of the two-day conference were subsequently

published in several separate short volumes under the title Jews in Jurisprudence (Das

Judentum in der Rechtswissenschaft) and are available in the German language on line.

Carl Schmitt (also Karl Schmitt and Carl Schmitt-Dorotic) was a German legal scholar,

philosopher, political scientist and critic of liberal parliamentarianism. His voluminous writings

span the fields of international law, political theory, comparative linguistics, geopolitics,

philosophy of history and comparative literature. After WWII, Schmitt, along with hundreds of

thousands of German and other European professors, teachers and academics, was subject to the

process of denazification and was removed from all academic and teaching positions by the American occupying authorities.

Some contemporary critics consider Schmitt a big time opportunist and Hitlers Crown Jurist. While acknowledging Schmitts influence on modern political thinkers, some of his contemporary (mostly Jewish) critics, like Steven E. Aschheim, from Hebrew University in

Jerusalem, also note how Schmitts anti-Semitism demonstrates in great and nuanced detail how his anti-Jewish attitudes permeated the very structure and grounds of his thought and

categories. The speech reproduced here clearly shows Schmitt as a completely accepting the National Socialist world view.

Over the last 30 years, however, Schmitts works have gained immense popularity, both in the USA and Europe, among leftist, conservative, liberal and rightwing scholars. Recently, most of

his work has been translated into English. Of significant academic interest today are Schmitts theories on just vs. unjust war, on limited vs. total warfare, on the notion of the political in different political systems and on the state of emergency. His theories on the legal status of terrorists, freedom fighters and disarmed enemy combatants, on guerilla and partisan warfare, are debated today by many legal experts, including military establishments and colleges

all over the world. C. Schmitt is a household name for many nationalist intellectuals and nationalist parties in Europe (see my Against Democracy and Equality).

After WWII, many of Schmitts theories exerted considerable influence on numerous American professors and authors, especially in the USA although many of them have never made any explicit reference to, or acknowledgment of Schmitts works. This seems to be the case with prominent US Jewish authors of the so-called Realist School in political science, legal scholars

and opinion makers, such as Henry Kissinger, Hans Kelsen, Michael Walzer, Hans Morgenthau,

Morton Kaplan, Hannah Arendt, etc. authors whose books and theories continue to exert a strong influence in the study of domestic and international law and international affairs, and

whose theories have significantly shaped US foreign policy since WWII.

To my knowledge the following speech by Carl Schmitt has never been translated or reproduced

in English. It is important to note, however, that other than this short anti-Jewish speech,

nowhere else in his earlier or later work does Carl Schmitt discuss Judaism, Jewishness, or

makes the slightest critical or laudatory comment about the Jews.

Notice in particular the theme that Jewish identity influences Jewish legal scholarship, and that

Jewish scholarship is an aspect of ethnic conflicta weapon aimed at us. While certainly not true of all Jewish scholarship, there can be little doubt that there are indeed conflicts of interest

between Jews and non-Jews over the construction of culturethe thesis of The Culture of Critique.

Legal scholarship and advocacy are certainly no exceptions.

As Ivers (1995, 2; To Build a Wall) notes, Jewish civil rights organizations have had an historic role in the postwar development of American church-state law and policy. [This effort] involved keen legal expertise both in the actual litigation but also in

influencing legal opinion via articles in law journals and other forums of intellectual

debate, including the popular media. It also involved a highly charismatic and effective

leadership, particularly Leo Pfeffer of the AJCongress:

No other lawyer exercised such complete intellectual dominance over a chosen

area of law for so extensive a periodas an author, scholar, public citizen, and

above all, legal advocate who harnessed his multiple and formidable talents into a

single force capable of satisfying all that an institution needs for a successful

constitutional reform movement. . . . That Pfeffer, through an enviable

combination of skill, determination, and persistence, was able in such a short

period of time to make church-state reform the foremost cause with which rival

organizations associated the AJCongress illustrates well the impact that individual

lawyers endowed with exceptional skills can have on the character and life of the

organizations for which they work. . . . As if to confirm the extent to which

Pfeffer is associated with post-Everson [i.e., post-1946] constitutional

development, even the major critics of the Courts church-state jurisprudence during this period and the modern doctrine of separationism rarely fail to make

reference to Pfeffer as the central force responsible for what they lament as the

lost meaning of the establishment clause. (Ivers 1995, 222224)

Similarly, Jews in nineteenth-century France and Germany attempted to remove

education from control by the Catholic and Lutheran churches respectively, while for

many [non-Jews] Christianity was an important part of national identity (Lindemann

1997, 214; Esaus Tears). Because of such activities, anti-Semites commonly viewed Jews as destroyers of the social fabric. (From Chapter 7 of The Culture of Critique, pp.

254-255)

Given this conflict, Schmitt emphasizes that the identity of Jewish writers should be made

known and that German legal scholarship should develop in its own direction, excluding Jewish

influence.

Schmitts speech is a good example of the National Socialist effort to expunge Jewish cultural influences from Germany. Notice particularly Schmitts comment that on the one hand we keep

pointing to the necessary fight against the Jewish spirit, yet on the other hand, at the end of 1936,

a seminar library in legal studies looks as if the greater part of the legal literature is being

produced by Jews. Quite clearly, Jews, constituting less than 1% of German citizens, remained an elite well into the National Socialist period.

* * *

Carl Schmitts speech:

As all presentations have demonstrated, Jewish law appears to be redemption from chaos. The

polarity of Jewish chaos and Jewish legalism, of anarchic nihilism and positivistic normativism,

of coarse sensualist materialism and abstract moralism, appears so clearly and so vividly before

our eye, that we can use this fact similar to the studies of racial psychology as a scientific finding in our meetings for our future work. Therefore, in the capacity of German guardians of

law and professors of law, for the first time we have made a contribution to the significant

research already carried out in the realm of race studies. In this teamwork of ours, over the last

two days, we have arrived at the initial conclusion which preserves the honor of our science in

conjunction with other accomplishments, and which, as was rightly pointed out by Dr. Falk

Ruttke, are accomplishments that can serve us as models.

1. The necessary task regarding the bibliography is very difficult. What is needed is to

determine, as accurately as possible, who is Jewish and who is not. The smallest errors in this

respect may be blown out of proportion, lead to confusion, and help the enemies of National

Socialism score cheap triumphs. Also, these errors could have a damaging effect in view of the

fact that young students can be distracted from the main ideas by small inaccuracies, whereas on

the basis of the false sense of justice so common to our German way they may readily be inclined to ponder over an isolated case of inaccuracy, instead of focusing on the big and just

issue for which we are fighting.

2. Only when we have an accurate register can we continue working in the direction of library

cataloguing and, by cleaning up the libraries, protect our students from the confusions that lie in

these facts; on the one hand we keep pointing to the necessary fight against the Jewish spirit, yet

on the other hand, at the end of 1936, a seminar library in legal studies looks as if the greater part

of the legal literature is being produced by Jews. Only by cleansing the libraries will this

monstrous suggestion disappear, a suggestion grounded in the fact that the works by Jews are

still featured in legal seminars, virtually inviting students to carry on with the absorption of

Jewish thought. All legal writings by Jewish authors belong, as Reich Minister Dr. Frank aptly

remarked, without distinction to the library catalogue of the department Judaica.

3. Also crucial is the issue of the quotations. As a follow-up to this meeting it is no longer

possible to quote a Jewish writer just as any other writer. It would be downright irresponsible to

quote a Jewish author as an expert witness, or even as some sort of authority in the field. A

Jewish writer is for us no source of authority not even as a purely scientific authority. This finding is a starting point when considering the issue of the quotations. For us, a Jewish writer,

even when he is quoted at all, remains a Jewish author. The adding of the word and the

designation Jewish is not an external characteristic, but something essential, given that we cannot prevent a Jewish author from using the German language. Failing this, the purification of

our legal literature will not be possible. Whoever writes today, Stahl Jolson will achieve much

more in a clear scientific manner than by writing long exegeses against the Jews, which, in

general, move around in abstract expressions and which in concreto do not affect a single Jew.

[The person referred to by Schmitt as Stahl-Jolson is usually known as Friedrich Julius Stahl;

by using Stahl-Jolson Schmitt emphasizes Stahls Jewish background. Stahl-Jolson was a conservative Jewish German legal scholar and philosopher (18021861) who had converted to Christianity]

Thus, only when we solve the issue of the quotations, we will be able to remove the

Jewish-infected literature [von Juden infiziertes], and attain, instead, German legal literature. The

problem of the quotations is not only of a practical nature; it is a fundamental problem. One can

recognize an individual writer by the way he uses quotations. Id like to point to the brazen matter-of-factness of the Vienna School of the Jew [Hans] Kelsen, where everybody quotes each

other, with other opinions being neglected to us Germans an incomprehensible cruelty and insolence. The issue of the citations is not a trivial matter. There are today, as far as the Jewish

question is concerned, no more trivial matters. Everything is very closely connected and intimate

as soon as the real battle of worldviews starts.

The issue of the quotations will lead to necessary clarification regarding many other individual

issues, such as the issue of quoting half-Jews and those closely-related to Jews. Ill warn right at the beginning against putting in the center of attention fringe issues and interposed issues. This is

a standard way of avoiding clear cut decisions. There are hundreds of cases where it is beyond

doubt that they are full Jews [Volljuden]. It is a typical Jewish trick to divert the attention from

the heart of the matter to the doubt- related issues, to the fringe issues and to the interposed

issues. Authors, with who there is no doubt that they are full Jews (Volljuden), will be in the

future in our German legal literature, referred to as Jews. When, for an objective reason it

becomes necessary to quote Jewish authors, this will be done only with the addition of the word

Jewish. By the mere mentioning of the word Jewish a healing exorcism will start.

4. The last practical goal is related to the issue of scientific research, particularly regarding

dissertations. A lot of good material for doctoral dissertations has emerged from the

presentations of these two days. I do not think it is necessary that still 70 to 80 percent of

hundreds of doctoral dissertations, which see the light today in Germany, continue to be written

in the same old style of civil code and penal code dissertations. Again, this is a serious matter,

considering how much talent and intellectual potential exists among German youth and what it

means when German law professors in charge of the education and the scientific training of these

young Germans, steer these young people to distracting topics and away from the daily life of the

German people. Here we have a professional task of first-rate importance. If one keeps in mind

what has been concluded in this conference on the dissertation themes alone, concerning the

legal historical and constitutional historical approaches as well as the research into the Jewish mind and its influence on German intellectual life in its intersection with the German mind, as was very clearly remarked by one of the speakers it does not seem to be difficult to draw the attention of a young student to the influence of Lasker, Friedberg, and Johann Jacoby

[19th-century German-Jewish liberal legal thinkers and politicians] on German legal

developments, or better yet encourage a student to study the rise of the civil procedure code and

penal procedure code, as well as other laws in relationship to Jewish influence, or have the

student focus his attention on the issue of Jews and the concept of the rule-of-law-state. There is no lack of dissertation themes and it would be the most stupid negligence if these new themes

were not addressed.

III. But most importantly, what turned out in these past days to be the definitive conclusion, is

that Jewish opinions, with their intellectual content, cannot be put on the same level with the

opinions of German or other non-Jewish authors. We all became aware with the greatest clarity

as to this supposed difficulty, such as when there are Jews expressing national and patriotic

views, as was the case with the famed Stahl-Jolson. Over and over again in our conference we

have come to realize that the Jew is sterile and unproductive for the German type of spirit. He

has nothing to say to us, however shrewdly he may keep deducing [kombinieren], or even

eagerly wishing to assimilate himself. Of course, he may play around with his enormous

mediation and mercantile skills but as far as the substance is concerned he creates nothing. It is a sign of the lack of training in the study of race and hence in the National Socialist thought to

overlook this and to assume that there is a more substantial problem behind this, such as some

Jews speaking and writing in nationalist terms, some in internationalist terms that they can advocate at a moments notice conservative, liberal, subjective, or objective theories. Even the much vaunted skills of criticism of the Jew are the product of his mismatch to everything

essential and genuine. It is a completely different concept of criticism from the one used by

German law professors acting in a genuine teamwork, criticizing each other or promoting each

other. Nor is it correct to depict the Jew as a very logical, very conceptual, constructive, or

rational person. It is not so much his care-free logical sharpness [unbekmmerte logische Schrfe] what we ourselves mean by logic, but a weapon aimed at us; it stems from the disproportion concerning the topic and the matter.

Introduction to Part 2:

Part 2 of Jews in Jurisprudence continues the glimpse into the mind of an important intellectual during the National Socialist period. One has to remember that this is a speech to a

gathering sponsored by a high government official in a nation with a very well-defined official

ideology. It is not a treatise with elaborate and well-supported arguments tempered by

qualifications sensitive to differences among Jews. Rather than an attempt to persuade by the

weight of logic and argumentation, it reflects a shared understanding in a highly politicized

context. Within these limitations, the essay is an important insight into perceptions of Jews

among elite German academics during the National Socialist period.

The general framework of Part 2 is that Germans and Jews are in conflict. Schmitt delineates

what he sees as Jewish tactics in this conflict, describing the general Jewish stance vis--vis

Germans as parasitic, tactical and mercantile. Jews are attracted to substantial works by Germans but use them in an adversarial manner against GermansWe must not give credit for this [i.e., for being attracted to substantial works by Germans] only to warn us to switch on our inhibitions. He portrays Jews as not interested in truth but only in using words to persuade, wearing masks of deception and quickly adapting their masks to new contextscomments that fit well with the emphasis of contemporary social scientists on deception and self-deception as

central components of human behavior. Schmitt advises his audience to attend to Hitlers comments in Mein Kampf on Jewish dialectics, presumably including the following:

..I found it extremely difficult myself to be a match for the dialectical perfidy of that race.

How futile it was to try to win over such people with argument, seeing that their very

mouths distorted the truth, disowning the very words they had just used and adopting

them again a few moments afterwards to serve their own ends in the argument!

I realized that the Jew uses language for the purpose of dissimulating his thought or at

least veiling it, so that his real aim cannot be discovered by what he says but rather by

reading between the lines. This knowledge was the occasion of the greatest inner

revolution that I had yet experienced. From being a soft-hearted cosmopolitan I became

an out-and-out anti-Semite. (taken from the English translation of Mein Kampf by

James Murphy)

Schmitt also asks why so many Germans were persuaded by Jews to adopt malicious ideologies

such as Marxism. How was it possible that thousands of decent and honest national comrades [Volksgenossen] could over decades succumb in such a way to the Jewish mind? Schmitt does not really answer this question, but he emphasizes that Germans who succumb to Jewish ideas

are essentially being used to serve Jewish interestsa proposal with a great deal of contemporary applicability.

* * *

Part 2 of Carl Schmitts Jews in Jurisprudence; translated from the German by Tom Sunic

The relationship of Jewish thinking to the German spirit is of the following kind: the Jew has a

parasitic, tactical and mercantile relationship toward our own intellectual work. Through his

mercantile skills he has often a keen sense of the authentic; with great ingenuity and quick flair

he knows how to target the authentic. This is the instinct of a parasite and of a genuine

tradesman. As little as this skill has been demonstrated by the Jews in the art of painting, Jewish

art dealers can, nevertheless, faster tell a genuine Rembrandt than German art historians.

Likewise, in the field of jurisprudence, this cannot be a proof that with his skills the Jew can very

rapidly recognize good authors and good theories. The Jews quickly spot German substance and

it is to this that they are attracted. We must not give them credit for this only to warn us to switch on our inhibitions. It is simply due to the overall situation of the Jew, in his parasitic,

tactical and mercantile relationship toward the German intellectual heritage. Even such a

horrible, sinister mask swapping, which underlines the whole life of Stahl-Jolson should no

longer distract us. Whenever it is ceaselessly emphasized that this person is subjectively honest, as true as this may be yet, I must add that we cannot glimpse into the soul of the Jews and that we have no access into the inner character of the Jews. We only know the

discrepancy between our kinds. Whoever has grasped this truth also knows what race is all about.

Furthermore, it is necessary to realize how differently the Jews have behaved at different stages

of history. Heinrich Lange [NS German legal scholar, 19001977] has explicitly pointed to that in his excellent essays. The most significant turning points in Jewish behavior during the last

century were the years 1815, 1830, 1848, 1871, 1890 Bismarcks dismissal, the beginning of the Wilhelminian era 1918, 1933. It is, therefore, unacceptable to put on the same level a case of Jewish appearance on the scene in 1830 with that in 1930. Here again we have the Jew

StahlJolson, who still exerts influence on the denominational and ecclesiastical opposition against the National-Socialist state. It is completely false to portray him as an exemplary,

conservative Jew in contrast to other belated Jews that could have unfortunately never become

that. In this fact lies a dangerous failure to recognize the essential insight, i.e., that with every

change in the overall situation, with each new period in history, and so quickly that we can only

grasp it with utmost attention, a change occurs in the overall Jewish behavior, a mask swapping

of demonic subtlety [von dmonischer Hintergrndigkeit] where, by contrast, the issue regarding

individually involved Jews, is fully irrelevant. Indeed, the great adaptability of the Jews has been

carried to extremes over several thousand years of their history by specific racial characteristics

whereby the virtuosity of mimicry has been even more fostered by long practice. We can see it,

but we cannot comprehend it. However, we must not lose sight of the fact that there is Jewish

virtuosity.

I repeat again and again the urgent plea to read every sentence on the Jewish question in Adolf

Hitlers Mein Kampf, and especially his comments on Jewish dialectics. What has been put forward at our meeting by experts in many scientific papers and in outstanding speeches is told

in simple language to every national comrade [Volksgenosse] in a fully comprehensive manner.

Do refer our law students always to those sentences by the Fhrer.

But beyond the Jewish problem let us not forget the German side of this question. For example,

in a direct application of what Dr. Falk Ruttke said, we could mention the case of Karl Marx

and the impact he had, as represented by the case of Friedrich Engels, or Bruno Bauer, or

Ludwig Feuerbach, or perhaps even Hegel. Here lies a tragic problem. How was it possible that a

German from Wuppertal, such as Engels, fell prey to the Jew Marx so completely? How was it

possible that thousands of decent and honest national comrades [Volksgenossen] could over

decades succumb in such a way to the Jewish mind? From where comes this non-resistance of

many German men and from where comes weakness and the darkening of the German style at

such a historical moment? The examination of this issue belongs to our scientific self-awareness

as well as to the armor for the new struggle.

We have recognized all this in this workshop with greatest scientific clarity. Compared to the

blindness and ignorance of earlier times, these are revolutionary insights. If equipped with it we

can enter into the struggle whose new phase has begun. Let us not deceive ourselves about the

seriousness of this struggle. The speeches at the Nuremberg Party Congress left no doubt about

it. Judaism is, as the Fhrer notes in Mein Kampf, not only hostile to everything that is hostile to

Jews; it is a mortal enemy of any real productivity of any other people. Its world power does not

tolerate national productivity because otherwise its own kind of existence would be refuted.

Jewish interest in the real productivity of other nations, the speed with which the Jewish artist or

the intellectual merchant collide with the German artist, poet or scholar and by means of giving him a pension or tenure [Rente] harness [einspannen] him for themselves are not virtues and they are not qualities that should distract us from the essential. We are dealing with

the Jews not for their own sake. What we are looking for and what we are fighting for is our own

authentic nature and the unspoiled purity of our German people. While resisting the Jew, says our Fhrer, I fight for the work of the Lord.