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Carl Schmitt’s “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 “Hitler’s Crown Jurist.”
While acknowledging Schmitt’s influence on modern political thinkers, some of his
contemporary (mostly Jewish) critics, like Steven E. Aschheim, from Hebrew University in
Jerusalem, also note how “Schmitt’s 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, Schmitt’s 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 Schmitt’s
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 Schmitt’s 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 Schmitt’s 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 conflict—”a 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 culture—the 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 period¾as 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 Court’s 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, 222–224)
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; Esau’s 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.
Schmitt’s speech is a good example of the National Socialist effort to expunge Jewish cultural
influences from Germany. Notice particularly Schmitt’s 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 Schmitt’s 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 Stahl’s Jewish background. Stahl-Jolson was a
conservative Jewish German legal scholar and philosopher (1802–1861) 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. I’d 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. I’ll 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 moment’s 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” [unbekümmerte logische
Schärfe] — 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-à-vis
Germans as “parasitic, tactical and mercantile.” Jews are attracted to substantial works by
Germans but use them in an adversarial manner against Germans—”We 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 contexts—comments 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 Hitler’s
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 interests—a proposal with a great deal of
contemporary applicability.
* * *
Part 2 of Carl Schmitt’s “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, 1900–1977] 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 — Bismarck’s 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
Stahl–Jolson, 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 dämonischer Hintergründigkeit] 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
Hitler’s 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 Führer.
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 Führer 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 Führer, “I fight for the work of the Lord.”