Niklas Luhmann, Carl Schmitt and the Political

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2007 10: 499European Journal of Social TheoryChris Thornhill

Niklas Luhmann, Carl Schmitt and the Modern Form of the Political

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Niklas Luhmann, Carl Schmitt and the

Modern Form of the Political

Chris ThornhillUNIVERSITY OF GLASGOW

Abstract

Niklas Luhmann elaborated his account of the political system in a complex,though often implicit, debate with Carl Schmitt. Underlying his systems-

theoretical model of politics, and of the legitimacy of politics, is the anti-

Schmittian view that modern societys communications about itself are

neither coordinated by, nor embodied in, a political centre, and that politics

is always an unemphatic aspect of these communications. However, this

article proposes an immanent critique of Luhmanns analysis of the political

system, and it argues that his theory uses highly selective and puristic tech-

niques to support its limitation of societys politics. If interpreted critically,

in fact, Luhmanns political sociology illuminates the specific politicality and

political emphasis of certain communications, it underlines the distinction of

politics from other systems of social communication, and it calls for a re-

insistence on the political as a primary category of social analysis.

Key words

Niklas Luhmann political sociology political system political totality

Carl Schmitt sovereignty systems theory

The suspicion that Niklas Luhmanns social theory and political stance wereinfluenced by Carl Schmitt strongly shaped the early reception of his work, andit was an important undertone in the controversies which his ideas provoked inthe 1960s and 1970s. The suggestion that he was associated with Schmitt wasnot solely based on a textual response to his theory, but it also reflected a widerstrategy of discreditation. Luhmann came to prominence and obtained his firstacademic appointment in the late 1960s, a time of deep political radicalizationin the university system of the Federal Republic of Germany (FRG), and also atime where politically nuanced readings of Schmitt were not widespread, except

on the political right. Luhmann, notably, did not immediately declare his positionwith regard to the climate of student ferment around 1968, but there is strongevidence in his publications that he viewed the events and the legacies of 1968in disdainfully ironic and condescending manner (see note 27). As a consequenceof this, the claim that he was a remote apostle of Schmitt was often used to position

European Journal of Social Theory 10(4): 499522

Copyright 2007 Sage Publications: Los Angeles, London, New Delhi and Singapore

www.sagepublications.com DOI: 10.1177/1368431007075966


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him within the political landscape of the 1960s, and to brand him as an exemplarof the persistently reactionary political culture at German universities. Subse-quently, then, during the death throes of political Keynesianism in the late

1970s, Luhmann emerged in the margins of neo-liberal theory as an influentialcritic of social democracy and state-led welfarism. At this time, again, the impu-tation of Schmittian impulses to his theory served to facilitate a convenientlyhistoricized classification of his work, and it permitted its distinctive importanceto be relativized.

The question of how Luhmanns work was related to Schmitt consequentlythrows important light on the theoretical history of the FRG, and some of themore sensitive fault-lines in recent German political culture become visiblethrough an inquiry into this question. Because of this, consideration of this issuealso illuminates the broader discursive preconditions of Luhmanns theoreticalevolution, and it offers a key to understanding how he reflected on his own(notoriously elusive) political attitude, and how he placed himself within the widerpolitical terrain.1 The greatest significance attached to this question, however, islinked to the fact that in his reaction to Schmitt Luhmann sought to counter-act Schmitts extremism by proposing a theory of society which renounced allexceptionalism and all traces of political ontology, and which developed a socio-theoretical methodology capable of interpreting the politics of modern society asentirely unemphatic. In one of his rare direct pronouncements on Schmitt, there-fore, he explained that he was not convinced by Schmitts theory, and he

described a good politics as one whose capacity for realization does not requirethe concentration of society around volatile or deeply experienced politicalcontests.2 In consequence, in addition to its discursive importance, a reconstruc-tion of Luhmanns approach to Schmitt frames an analysis of two counterposedaccounts of the politics of social modernity, and it addresses the question of howand whether modern society still remains specifically political, and of whetherthe advent of modernity in a society means that this society loses its structuralexperiences of politics, power and legitimacy. For this reason, a comparativeanalysis of Luhmann and Schmitt also enables a clarification of the political

components of Luhmanns work, and it places the tenability of his foundingpolitical claims in a stark critical light.

The End of Political Totality

The early identification of Luhmann with Schmitt focused on four salient points.First, Luhmanns argument that a political system constructs itself by differenti-ating itself from the non-political contents of the societal environment which

surrounds it, and by marking a specific self-produced realm of sense as irre-ducibly and autonomously political (1974: 163), was widely seen to replicateSchmitts earlier theory of the autonomy of politics. Specifically, this argumentwas seen to reflect Schmitts claim that the political system is formed as politicalthrough its binary self-differentiation, through its exclusion of all heterogenous

European Journal of Social Theory 10(4)5 0 0


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elements from its structure (1932a: 28), and through the imposition of its will,as autonomous sovereign, across other social spheres (1922: 13).3 It was there-fore suspected that the binary structure of the system/environment relation in

Luhmanns sociology contained a surreptitiously anti-pluralistic model of systemicformation, which transposed Schmitts exceptionalist definition of sovereigntyinto a functionalist account of the modern political order.

Second, it was also inferred, as a consequence of this, that Luhmanns socialtheory veered towards an attitude of political decisionism. His claim that theprimary function of a political system is the production of binding decisions(1970a: 159), or of collectively binding decisions (1984a: 102), and that thedecisions made by a political system serve positively to unify and legitimize thissystem against its unstructured environment, was habitually taken as a sign ofSchmittian affinity.4 Luhmanns early theory of the decision was integrated intoan analysis of the political system which stated that the modern political systemis triadically differentiated into three subsystems politics, administration, and

public. In this system, the symbolic executive functions ofpolitics have a primaryrole in generating legitimacy for the entire political system, and the executivemakes the first decision which sets the parameters for all other decisions insti-tuted as politics (1966a: 114). Taken together, these theoretical elements appeared,first, to revive the Schmittian argument that legitimacy is derived from symbolicacclamation for the executive, not founded in participation or consensus (1927:34), and, second, to concentrate political order around a societally disengaged

group of decision-makers.5Third, Luhmanns sociology was also often seen as a theory which reproduced

Schmitts central claim that law cannot provide constitutive terms for politicallegitimacy, and that laws obtain legitimacy (that is, following Weber, the powerto command obedience) for reasons which rational analysis of laws content canneither comprehend nor prescribe (1923: 56).6 This critique focused in partic-ular on Luhmanns assertion that rationally acceded norms are not an externalprecondition of legitimacy in politics (1981a: 69), and that political systemsdescribe themselves as legitimate in highly varied and deeply paradoxical ways,

which cannot be condensed into normative postulates.7

His theory was thereforeoften construed as one which attacked the central liberal idea of legality as thesafeguard of democracy, which denounced the liberal belief that law and legalnorms can produce societal conditions of pacification and legitimized compli-ance, and which assumed that laws legitimacy relies on the pre-existence of astable political order, in which law itself is a subsidiary variable.

Fourth, early receptions of Luhmanns work also took issue with his hostilityto integrative ideas of welfare or participatory democracy, and they claimed thathis theory of decisions was marked by a technocratic approach to legitimate

governance.8

In this regard, Luhmanns work was placed on a continuum withSchmitts theories of the last years of the Weimar Republic. At this point in histrajectory, Schmitt slightly altered his exceptionalist theory of sovereignty, andhe advocated a restriction of the states regulatory and distributory responsibility(see Cristi, 1998: 20011), and a devolution of political authority to the political

Thornhill The Modern Form of the Political 5 0 1


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administration, albeit under commissarial or presidential control (1932b: 81).This inference of a technocratic symmetry between Luhmann and Schmitt wasin fact widened to incorporate the claim that there existed a larger lineage of

technocratic theorists; this, it was claimed, began with Schmitt and ended withLuhmann, but it also included the conservative functionalist theorists of bureau-cracy whose works set the contours of debate in post-1949 Germany, especiallyHans Freyer, Arnold Gehlen, Ernst Forsthoff and Helmut Schelsky.9 On thesegrounds, a view of Luhmann was allowed to circulate which saw his politicaltheory as a design for government by technologically empowered administratorsand semi-independent prerogative elites, whose competence was decoupled fromactive or participatory social groups and dedicated to narrowly political tasks ofconsensus-manufacture and planning. Jrgen Habermas was especially respon-sible for this technocratic categorization of Luhmann, and he, with other critics,saw Luhmanns systems theory as symptomatic of a rising Schmittian under-current in the political culture of the FRG in the 1970s.10 In this respect,moreover, Luhmann was also identified as a post-Schmittian contributor to thedebates about ungovernability, which resonated through right-wing protestsagainst expansive ideas of democratic distribution in the FRG in the late 1970s.11

These accusations were sensitive and multi-faceted enough for Luhmann torespond to them in deliberate (although normally implicit) manner. On the firstpoint of criticism, even in his earliest writings Luhmann designed his account ofthe binary differentiation of the political system as a repudiation of Schmitts

claim that the political system assumes a status of primacy in modern society, orthat this system is positioned dualistically or exclusively above other socialsystems. He insisted instead that no system of society can assume measurablepriority over any other system, and, consequently, that politics cannot impute toitself responsibility for regulating areas of society which are not internal to itsown relatively narrow communications. Luhmanns account of politics as formedby its difference from what is not political can consequently not be seen as anexclusionary or anti-pluralist construction of the political system. On the contrary,he saw the autonomous differentiation of politics as one element in a wider

multi-systemic dynamic of differentiation, in which a number of social systems(e.g. law, economics, religion, medicine, science, education and the arts) constructthemselves as plurally, non-hierarchically, and inclusively autonomous (1981b:223). For this reason, the Schmittian argument that the state is distinct fromsociety and that, in obtaining sovereignty, it positions itself in a dominatoryduality towards the plural associations which society comprises, is, for Luhmann,a nave and counter-factual claim.12

In this respect, Luhmann implied that Schmitts conception of the politicalsystem as a sovereign fulcrum of society fails to recognize that modern societies

have evolved as polymorphously differentiated and decentred societies, and thateach system of modern society contains a distinct type of rationality (1967: 106).The contents of one systemic rationality cannot be generally transmitted acrossinter-systemic boundaries, and no system can observe or intercept problems inother systems without transforming these, rather unpredictably, in accordance



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with its own rationality. It is, Luhmann therefore claimed, not possible to assumethat one particular system containing one particular rationality can possess acentral or sovereign role in society. It is not possible to centre a functionally differ-

entiated society on politics without destroying it (1981b: 223), and a conditionof political sovereignty would entail a traumatic societal de-differentiation, inwhich the fragile web of differentiated autonomy and pluralized rationalismconstitutive of societys modernity would be thrown back into a state of anti-quated monism.

Luhmann consequently viewed Schmitts category of political sovereignty asa remote and unhelpful concept which falsely imagines that society, in its totality,can be made to converge around one mode of reason or one personal will. Inresponse to such theories, in fact, Luhmann argued that sovereignty is merely anevolutionary semanticof the political system. The idea of sovereignty, he argued,evolved as a paradoxical term or a fiction through which, at the threshold ofsocietal modernity, the political system began, at an early stage in its differenti-ation, to provide a description of itself, which allowed it to articulate and exter-nalize the preconditions of its differentiation and to stabilize itself as a distinct,autonomous and determinatelypolitical set of meanings (1984a: 103). However,as society subsequently progressed into a condition of full modernity and totaldifferentiation, inflated concepts of the sovereign state rapidly outlived theirsemantic utility, and in late modern societies these concepts tend to disableadequate socio-political analysis. Indeed, concepts of sovereignty often create the

harmful appearance that all problems can be uniformly resolved by the functionsof representation or rationalityembodiedby the political system, and this normallyleads to a functional overburdening of the political system.13 Luhmann conse-quently derided Schmitts thought as guided by an unsurpassed sense for theredundant (2000: 333), and he dismissed his post-theological concept of sover-eignty as a more or less wittingly absurd attempt to found the contingent sourcesof modern power in the acts of one creative will (1992: 8).

On the second point, Luhmann acknowledged that his description of politicsas a social system making collectively binding decisionshas a certain proximity to

Schmitts earlier decisionism.14

Indeed, this aspect of his social theory echoesSchmitt both in the claim that a political system is constituted and unified byits decisions, and in the claim that these decisions at once found and endlesslyre-enact the conditions of positive legitimacy in the political system. Like Schmitt,he argued that decisions mark, ex nihilo, acts of positive or contingent self-foundation in the political system, and that these decisions enable the politicalsystem to differentiate itself from other systems and to describe itself to itselfas a positive and integral form of order.15 Both Schmitt and Luhmann thusconstrued the decision as the marking of a distinction which permits politics to

refer to itself as autonomous, and so positively to underwrite its contents, and thelaws covered by its sanction, as legitimate (see Luhmann, 1967: 116). For allthe seeming absurdity of Schmitts attempt to deduce the positive legitimacyof the state from its analogy to Gods sovereign will, therefore, Luhmann surelyidentified a dialectical element of modernity in Schmitts theory, and he accepted



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the view contained in exceptionalist decisionism that in modern societies politi-cal legitimacy and legitimacy in law are fully contingent and auto-causal and thatthe decision is a figure for the moment where legal and political contingency is

stabilized as legitimacy.

16

In this respect, both Luhmann and Schmitt exemplifiedan attitude of extreme legal-political positivism, and both accepted that law andpolitics cannot presuppose moral or value-rational principles for their decisions,but are endlessly charged with the decisive labour of positive self-legitimization.Luhmann concluded, consequently, that the ability to secure recognition ofdecisions is the essence of the concept of legitimacy (1983: 31).

Despite this clear convergence, however, Luhmann was also quite clear aboutthe ways in which his theory of the decision differs from that proposed bySchmitt. He denied, for example, that decisions giving legitimacy to politics arethe exceptional acts of sovereigns, or even of particular persons (Beyme, 1991b:239). He indicated instead that decisions are simply enactments of the code bywhich politics constructs itself as differentiated and autonomous: that is, the codegovernment/opposition. This code is a binary matrix through which the politi-cal system decides which elements in its environment are relevant to politics, andthen communicates with itself about its decisions over these elements. Thesedecisions, however, are not decisions of the will: they are decisions of a code, andit is a matter of relative insignificance for the system which person or which willfactually enacts them.17 The decision of the political system, moreover, is neverthe decision of a sovereign, and certainly not, in a Schmittian sense, of a total

sovereign.18 This decision can never project a total or exceptional vision of whatis right and good for all society, and it can never force all society to centre itselfand its communications on this total or exceptional vision. The decision of thepolitical system, rather, is always partial, differentiated, and revocable. A modernsociety can never confront itself totally in a decision, and it can never be broughtinto an exceptional or total account of itself, for both society and societys politi-cal system make many (very unexceptional) decisions, and these decisions cannotbe generalized into absolutely exclusive options or choices for all spheres ofsociety at the same time.

If Luhmann was a decisionist, in consequence, he was a decisionist who soughtto demystify decisions and who saw the dramatic totalization of decisions as amodern absurdity. Decisions, he implied, merely externalize the self-referentialcontingency of the political system, and they allow the political system legiti-mately to actualize itself as something(and specifically as something political), andso as marked by its difference from nothing (2000: 47). The decision is an actof paradox in which politics spontaneously distinguishes itself from non-politics,and then brings the contingency of this paradox into a condition of legitimacy,where it is accepted as politics throughout society (1992: 11). In his earlier deci-

sionism, therefore, Schmitt expressed anxiety about the neutralization of sover-eignty, legitimacy and the political itself as signs of a deep malaise in Westernsociety, and he saw the decision as a positive act of voluntaristic concentration,causing all society to condense into a total-political experience of itself (1932a:7995). In his later decisionism, by contrast, Luhmann merely mused that politics



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is one mode of societal self-communication among others, and that politicscommunicates about itself decisively precisely because of its irreducible contin-gency.19 However, there is no certainty that anybody need care or even decisively

notice if the political system suffers a shortfall in legitimacy or sovereignty.On the third point, Luhmann again admitted a certain proximity betweenhimself and Schmitts anti-liberalism. Like Schmitt, he argued that governmen-tal or juridical legitimacy depends neither on rationalized evidence of legal validitynor on justifications of legal compliance produced outside the political system.The legitimacy of political decisions, he stated, is to a large extent independentof the consensus of those affected by them (1983: 209), and normative philoso-phical analysis of the conditions under which political domination is legallyacceptable tends to present highly simplified and selective accounts of legitimacy(1970a: 159). He therefore claimed, like Schmitt, that there are no rational lawswhich are formative of political legitimacy, that legitimacy cannot be measurablein law, and that the legitimacy which underwrites laws likely to be met withcompliance is a conclusively positive and historically contingent commodity,supported by a responsible decision, not by a rational norm, in the politicalsystem (1970a: 167).

At the same time, however, Luhmann was also keen to understate the politi-cally dramatic implications of his anti-normative concept of legitimacy, and,contraSchmitt, he asserted that although legitimacy resists normative-conceptualstabilization, it should not be assumed that the application of power by posi-

tively legitimized political systems involves a drastic violation of societallyinscribed legal norms. Although not conditioned by law, he explained, a legiti-mate political system is surely not above the law, and its decisions do not existindependently of law. On the contrary, he argued that in differentiated societiespolitical power can never be transmitted in vertical, prerogative or sovereign form,but must in fact be transposed into an iterable medium (law), which createsmultiple opportunities for compliance throughout society and diminishes theprobability that obdurate resistances to powers application will occur (1981c:166; 1995: 425). Modern power, Luhmann thus claimed, requires law as the

medium of its societal dissemination; it must be second-coded as law or sub-ordinated to the law; and it cannot be transmitted except in the institutionalstructure of a legal state [Rechtsstaat] (1997: 357). Power which is not legallyformed and which remains concentrated at uniquely personalized points ofcommunication in the political system cannot be effectively utilized in modernsocial communications. Like more orthodox liberals, therefore, Luhmann arguedthat societies whose political systems enjoy legitimacy normally promote a highdegree of interdependence between law and politics, and that legitimacy will in all probability be the attribute of a political system whose power assumes

the form of a legally structured democracy.Schmitts attack on the normative or liberal-Kantian claim that legality is theprecondition of legitimacy was quite fundamental. He argued that law onlyobtains legitimacy if it is underscored by a substantial pre-legal or politicalfoundation, concretized either in a personal executive or in a national association



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of wills (1922: 38), and it is only where the law is supported by beliefs, identi-ties, wills or experiences of unity that it is likely to obtain enduring compliance.Luhmanns anti-normative view of legitimacy, however, was altogether more

circumspect and dialectical. Far from replicating Schmitts ideas, he argued thatit is just as fallacious to claim that laws validity requires political substancesexisting outside law (for example, a strong executive personality, a unified nationalculture, or a basis of racial homogeneity)20 as it is to claim, in liberal-Kantian style,that the legitimacy of politics refers to monadically generated rational norms, tran-scribed into laws. For Luhmann, both law and politics obtain validity throughtheir own communications, and through the semantics and self-descriptionswhich they are able to initiate in order to render their applications consistentand plausible. Despite this, however, he also suggested, against Schmitt, thatthere exists a high societal probability that modern power will be a medium ofcommunication which is interdependent with law.

On the fourth point, finally, Luhmann also clearly moved his thought ontoterrain normally associated with Schmitt, and his threefold differentiation ofthe political system into politics, administration and public surely mirrors certainaspects of Schmitts more technocratically inflected observations. Luhmans sub-divided construct of the political system implies, first, that the symbolic or decisiveresources of legitimacy in politics are generatedfrom above, by the executive. Theexecutive, Luhmann argued, creates decision premises for all administrative func-tions of the political system, and all functions of the political system rely on these

premises for their founding authority and consistency (1966b: 286). Second,however, this theory also ascribes great weight to the second tier of the politicalsystem: that is, to the administration (1966b: 294).21 Crucially, Luhmann definedthe administration as the legislative component in the political system. He saw theadministration as a political subsystem which, working within the constraints setby political decisions, intercepts communications from the public, and reshapespolicies, programmes or decision premises, so that these assume an adequatelygeneralized form (the form of law) (1981b: 45, 64). He therefore claimed thatlegislation, to a large extent, is the result of bureaucratic procedure, evolving at

the point of intersection between the public and the political administration, andthat common views on legislation as a manifestation of consensus or agreementare highly reductive (1981b: 45). Laws, he explained, might be formed throughpersonal discussion between cabinet members and high-ranking civil servants,through the parliamentary drafting of bills and papers, through exchanges andarrangements between sub-governmental lobbies and members of the statebureaucracy, or even, at a more local level, in councils and regional deputations(1981b: 63). In all instances, however, legislation is the outcome of adminis-trative exchanges, which are originally supported and underwritten by the

highest policy decisions of the executive.Clearly, then, it is no coincidence that early interpreters of Luhmann werealarmed by the symmetries between this model of politics and the theoreticalfeatures of Schmitts more functionalist works.22Above all, the works of Luhmannand Schmitt converged however sporadically in their common claim that



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politics is a formal sphere of planning or programmatic policy-making, whichcreates the originating sources of legitimacy for all political communications, butwhich remains relatively independent of the technical processes of legislation and

societal regulation.

23

For this reason, both claimed, most specific functions ofgovernment should be delegated (through plans and strategic decisions) to thestate administration. The works of both Schmitt and Luhmann consequentlycontain an implicit doctrine of executive democracy, which identifies the functionsof democratic governance as acts within a densely ramified bureaucratic executive,not as constitutively responsive communications between political institutionsand civil society.24

Despite this, however, Luhmann was also determined to place clear theoreti-cal water between himself and all emphatically technocratic theory. At one level,he intimated, it is difficult to deny that governmental technocrats are correctwhen they claim that modern governance necessarily revolves, not around sub-stantial consensus, but around the administration of functionally adequate solu-tions for technical problems.25 Politics, he argued, cannot be other than a set oftechnical operations, and it has no primary association with founding humaninterests, rationalities or dispositions (1969: 315). Modern political legitimacy,therefore, is not obtained by rational-normative selections, but by the politicalsystems evolution of a higher flexibility, which allows it to respond effectivelyto the complex environments of modern society, and by its ability to condenseits manifold functions into succinctly plausible descriptions of its purpose and

justification (1969: 315). At the same time, however, he also suggested that diag-noses of technocracy (either affirmative or critical) are habitually overblown, andthe idea that the political system has suddenly gained access to technologicalinstruments which permit it to subject all areas of social communication to exactregulation is without substance. However expansive its technological resourcesmight be, he argued, a political system does not have the capability to elaborateplans which can be congruently imposed across all society. A political system issurrounded by many rationalities and by many environments, and it cannotevolve cognitive or technical capacities adequate to all facts and all rationalities

in its environments. For this reason, he argued, the element of planning or oftechnocracy is always the weakest or most contingent moment in the politicalsystem (1966b: 296), and no political system can guarantee that it can reliablyuse technology or technical goods to transform particular plans into universallyconsistent or reliable directives. For Luhmann, therefore, attitudes to technocracywhich are either enthusiastic or anxious suffer equally from an inflated vision ofpolitics, and they fail to understand the highly contingent and uncertain char-acter of modern societies and the politics of these societies.

A comparison of Schmitt and Luhmann, consequently, shows that, in many

ways, they elaborate two fundamentally counter-posed accounts of the status ofpolitics in modern society.26 In its entirety, Schmitts work marks a lament onthe demise of politics. It is an expression of disquiet about the modern emer-gence of societal polycracy and the overrunning of political ethics and leader-ship by the pluralist mass of material, technical and strategic interests held at a



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level of indifference by early modern and high-liberal states (1931: 90). Histheory is consequently marked by a resolve to re-inflate the political, and wherepossible, to coerce society into totalized constructions of itself, distilled into

dramatized ideas of political sovereignty and authority, centred in the state. In itsentirety, in contrast, Luhmanns work effaces the pathos from politics, it happilyaccepts polycracy or polycentricity as the evolved condition of modern societalpluralism, and it denies that society can ever be politically total, or that one modeof rationality can explain or configure society as totality. For these theoreticalmotives, Schmitt normally identified himself with political associations which,in his opinion, sought to maximize the political content and emphasis in societyand to ensure that as many aspects of social decision-making as possible weredetermined by centrally concentrated (or total) decisions. In contrast to this,Luhmann tended to identify himself with political positions which diminishedthe convergence of society around its politics, and which attempted to limit thenumber of themes deemed susceptible to coupling with politics. As a (broadlydefined) liberal theorist, Luhmann expressed contempt for the political coloniz-ation of differentiated social systems under totalitarian governments, which hesaw as marking a retrogressive development in the differentiation of politics andeconomy (1981b: 29). In addition, he reviled the expansion of the boundariesof the political promoted by the student movement around 1968 and the NewLeft thereafter,27 which endeavoured to transform education, science and thefamily into sites of intensely politicized conflict and polemic.28 Moreover, he also

opposed the practical and theoretical inclusion of economic provision in thepolitical system promoted by the welfare states in Western Europe in the 1970s,29

and he saw the radical-democratic widening of politics to integrate popularparticipation as a disaster (1987a: 154). In his own stretch of history, therefore,Luhmann defined himself against Schmitt as a theorist of anti-politics, not oftotal politicization. As a consequence of its differentiation and its many-featuredenvironmentality, he claimed, modern society is a specifically un-politicized oreven un-powered society (Clam, 2006: 152). Attempts (of whatever politicalpersuasion) to re-invoke politics as an emphatically experienced centre of societal

control or stability fail to identify the modern de-emphasization of power, and,because of this, they simplify the evolved complexity, differentiation and plural-ism to which modern societies owe their freedoms.

In this restriction of societys politics, then, Luhmann also claimed that theorywhich emphasizes politics as societys centre suffers from a cognitive or socio-epistemological deficiency, and it lags behind a state of reflexive adequacy to theplurally differentiated nature of modern society. Such theory omits to acknowl-edge the contingency and multiplicity of the rationalities which steer individualsystems in modern society, and it ignores the fact that plurality and distinction,

not structure and convergence, are the sources of cognition in a systemicallydifferentiated society. Such theory constructs society as political, and as reliant oncentral legitimacy, because it selectively and counter-factually imputes a uniformand quasi-ontological substrate of human reason, human character and humaninterest to all modes and forms of societal communication. This imputation,



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then, paradoxically, allows theory to assume that even under the conditions ofextreme societal pluralism one privileged social system (politics) can translate thecontents of this human substrate into publicly representative power and, in

consequence, legitimately extend its power, as sovereignty, to dominate and todetermine all different systems and different social rationalities. At the heart oftheory which commits itself as political or politological, in consequence, is arather facile sequence of theoretical selections and options which enable theoryto insinuate an ontologically or anthropologically generalized political rationalityinto society, and then to deduce societys necessary structure from this insinua-tion. Only theory which thinks sociologically, however, is fully able to understandthe decentred place of power and politics in modern society (1993b: 255), andto prevent the political collapsing or de-differentiation of society into simplisticgeneralizations of its content. Sociology, thus, is defined by Luhmann as aninterpretive methodology which abdicates all reliance on foundational ontologyand which, as a result, eradicates all traces of acute political emphasis fromsocietal analysis.

A Societal Political System?

Despite Luhmanns intended differentiation of the place of politics in society,however, there are certain aporia or critical ruptures which appear in his politi-

cal sociology. These ruptures at times speak against his restriction of politics andhis resolute de-politicization of social communication, and, as a result, they alsothrow quite distinct light on the question of his relation to Schmitt.

First, critical interpreters of Luhmanns work might identify certain internalcontradictions in his conception of power, and of its social functions, and thesecontradictions might be seen to detract from his wider analysis of the politicalsystem. Clearly, Luhmann sought, against Schmitt, to promote a fully sociologicalaccount of power. To this end, he denied that society in its totality is organizedaround power; he denied that society, in its diffusely pluralistic shape, can assume

a distinctive and convergent density around political contents or decisions; andhe denied that legitimacy in a political system can constitute or underpin thelegitimacy of other social communications. The legitimacy of power, therefore,is the political systems paradoxical self-description as legitimate, and this legiti-macy is neither produced by, nor does it emphatically affect, the communicationsof other social systems.

Nonetheless, this aspect of Luhmanns theory remains one of its more precariousconceptual components, and even a strictly immanent reconstruction suggestscertain ambiguities in his restriction of power to the political system. At times,

for example, Luhmann expressly acknowledged that other social systems re-routepower from politics into their own communications. The legal system, for example,has a distinct and integral coupling with power, and it conserves a store of politi-cal power as the basis for its injunctions and permissions (1988a: 94). In fact, allother systems intermittently engage in a parasitic relation to the political system,



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and they utilize its power for the enforcement of specific decisions or vetoes(2000: 69). It is specifically characteristic of relatively pacified societies that theyevolve political systems which, because they are differentiated and self-stabilizing,

are able to open up, develop and cultivate a plurality of distinct foundations ofpower. In such pacified societies, in consequence, it is perfectly conceivable thatpower might attach itself to the free labour contract, through which qualifiedsocial agents exercise power in monetary negotiations relevant to their employ-ment or their careers, or to key positions in societal associations. In this respect,therefore, modern society usually permits an inflation of societal power beyondthe limits of the political system, and it allows a generalized increment of powerin society as a whole (1970a: 160). In addition to this, moreover, Luhmann alsoperiodically altered his narrowly political concept of power by defining organiz-ations (including professional bodies, groups with select membership, institutions,etc.) as mechanisms which serve the differentiation and the distribution of power.

As it is mediated by organizations, then, power becomes relevant for all society,and its focal concentration around the competences of sanction and decision inthe political system is counterbalanced (1987b: 122). On these grounds alone,it might be suggested that Luhmanns interpretive apparatus struggles to limitpower to the political system, and it implicitly accepts that power (perhapsuniquely among the different social systems) is a universally relevant medium.

If viewed from a more external perspective, however, Luhmanns work containseven more unsatisfactory moments in its account of modern power. From an

external position, for instance, it might be asked why education, and the prefer-ences articulated in education, are not construed as sites for the societal trans-fusion of political power. It might also be asked why religious rituals, and themodes of comportment favoured by these rituals, are not steered by, and in turnhelp to consolidate, political power. Likewise, it might also be asked why theorientation of society around certain economic practices is not seen as deter-mined by acts of coercion which cannot be de-coupled from political power, andthus as enacting and supporting prerogatives which can only be properly under-stood as political. In each of these instances, Luhmann would be constrained

to argue that communication in education, religion and the economy is solelydetermined by the codes of these systems, and that these are neither formed by,nor formative of, political power. It is at least arguable, however, that even in themost polycentric societies power is distinct from other media of communication:that it is applied and reinforced across systemic boundaries, and it gives rise towhat might be called structural knots, or cases of concentrated over-layering, atthe interface between different systems. It is also arguable, therefore, that therelative neutrality of power in Luhmanns sociology is sustained by a ratherpuristic definition of what power is, and this could be productively counteracted

by a more micro-analytical approach to the contents of communications otherthan politics. If this critical objection is accepted, it might be argued that politicscannot evolve to the level of differentiation which characterizes other systems,and that modern society cannot be accounted for without sporadic moments ofeminently political convergence and inter-systemic density. Indeed, it might also



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be argued that in these moments of concentrated overlayering between politicsand other systems the political system sustains its legitimacy, in its own distinc-tive form, through the transmission of power into other systems and through the

consolidation of its power by other systems. If this is the case, it can surely bedoubted whether the political systems communication about itself as legitimatecan be reduced to the internal semantics or self-descriptions of a fully differen-tiated system.

Even in the terms of his own theory, in fact, it might be claimed that Luhmannwas not fully able to demonstrate why power in the political system should notbe viewed as a supreme or even sovereign power, which finally regulates,decides over, and is sustained by other, inferior forms of power. As discussed,although opposed to hierarchical or dualistic views of the political system,Luhmann insisted that the primary function of the political system is that itmakes collectively binding decisions. If these decisions are collectively binding, itmust surely be presumed that they articulate communications across systemicboundaries, and they construct and provide central regulation or resolution inthose instances where society as a whole needs power. Luhmann was notoriouslyoblique in defining the conditions under which society has a requirement forgeneralized power, but it might be surmised that he saw the application of gener-alized power as necessary in those situations where communications occurring atthe intersection between one or more social systems become diffusively problem-atic and generate disabling perturbations for communications in all society. This

need for general power might occur, for example, if two systems confront andcommunicate about one issue in irreconcilably divisive manner, and if this issuecannot be resolved, without an external construction, in a manner satisfactoryfor both systems. An example of this might be a case of dispute between religiousand educational institutions over the content of pedagogic material, in which apolitical decision might be required to clarify points of policy and to re-mark theline of differentiation between religion and pedagogics. Similarly, a need forgeneral power might occur if a problematic communication in one system meansthat this system forms a dense coupling with a different system, such that this

coupling impedes the communications of one or both of these systems, meaningthat the relation between these systems can only be normalized by means of athird systems intervention. An obvious example of such a situation might be acase of widespread judicial corruption, introducing monetary values into thelaw and causing legal communications to become unreliable and to resonate inalarming or destabilizing manner for communications in the political system andother systems. In such a case, a political decision might be needed to regulate orremove the corruption, and to restabilize legal communications around their ownproper coding. It might even be possible to imagine a case of mass impoverish-

ment induced by specific practices or strategies in the economy, causing economiccommunications to become unsettling for the law, for medicine, or even foreducation, and so demanding palliative political intervention in the economy.

It might be presumed, therefore, that the enforcement of a collectively bindingdecision is most likely to be required in circumstances in which society in general



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is adversely affected by problems evolving in one system and extending beyondthe boundaries of this system, and in which all society, or at least a number ofsocietys systems, enter a state of real or possible de-differentiation. Society needs

general political power, in other words, where different social systems coalescearound problematic couplings, where these couplings render unstable the obser-vational capacities through which these different systems construct their owndifferentiated environments, and where they risk undermining the plurality anddifferentiation of society in its totality. This, intriguingly, raises the question ofwhether, on Luhmanns account, there are moments in societys communicationsabout itself where a widespread and endemic disruption (or exception?) can occur,and where only a generalized political decision is able to reconstitute conditionsof normalcy. This raises the further question, then, of whether the problemsevolving in systems other than politics, and finally needing general political reso-lution, are not in themselves intrinsically political. These problems dramaticallypoliticize the systems in which they originate, they generate political problemsfor all society, and they ultimately become constitutive objects of determinatelypolitical irritation, communication and decision. This, moreover, raises the addi-tional question of whether a political system is not finally required to legitimizeitself by deciding on political problems emerging in other areas of society, andof whether its legitimacy is not factually defined by its ability to mark itself as acentre of higher (or highest) rationality in society. The supreme function ofLuhmanns political system, in any case, is that it can re-differentiate(or perhaps

de-politicize) other systems of society, and that it can counterbalance the un-nerving politicization of other systems by applying to them the resources of itsown political rationality. To do this, following Luhmanns own cognitive scheme,the political system must have the ability to construct for itself ways in whichthe rationality of one system might perceive communications in the rationalityof a different system, and it must be able to manufacture solutions to socialproblems which are simultaneously commensurate with the rationalities of anumber of societys distinct systems. Politics, thus, must under certain circum-stances project an approximately total image of society and its rationalities, and

it must be able to explain and legitimize its trans-systemic interventions byreferring to this image.30 This leaves the paradox for Luhmann that in order tomaintain societys differentiation politics must sporadically de-differentiate itsown relation to other systems of society, and it must deploy cognitive resourceswhich are adequate to the internal communications of a plurality of differentsocial systems. For this reason, Luhmanns account of society as un-powered isnot always sustainable, and his work cannot suppress the claim, first, that politicshas an occasional primacy among social systems; second, that it possesses rationalresources which cannot be restricted to one set of systemic functions; third, that

there are moments in which society as a whole communicates politically aboutitself and, finally, obtains heightened stability or renewed normalcy because ofthe political system. In such moments, most crucially, the ability of the politicalsystem to demonstrate competence in de-differentiation is a condition of itslegitimacy: this legitimacy is generally constitutive of the stability of all society,



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and it presupposes that the political system can explain its acts as legitimate to anumber of social systems at the same time.

The Re-entry of Politics

The debate about the relation between Luhmann and Schmitt might thus, on thesethree counts, be substantially recast. Earlier analyses of this question suggested thatLuhmann tried, but failed, to suppress a Schmittian affiliation. In fact, it is closerto the truth to assert that Luhmann attempted to eliminate all Schmittian, orindeed all emphatically political, elements from his sociology but that society,even in the condition of differentiated modernity which Luhmann imputed toit, evaded description in such radically anti-Schmittian categories and persisted inits dominant political structures. For all his ambition to conceive society merelyas society, without any necessary ontological or political substructure, the suspi-cion presents itself through Luhmanns work that society cannot be stripped ofits eminent politicality, and that it cannot be rendered so pluralistically diffusethat it relinquishes all universally relevant (political) conflicts and all universallyrelevant (political) appeals to rationality. The story of the relation betweenLuhmann and Schmitt, therefore, is not the story of a furtive debt or of acovert alliance. It is the story of a recurrent interruption of Luhmanns thoughtby immanent contradictions, many of which are caused by his attempt, contra

Schmitt, to depreciate societys politics. Underlying the political aspects ofLuhmanns sociology is the submerged sense that society is never just society,and, where its differentiated systemic normalcy is threatened, it is always capableof momentarily configuring itself around its politicality and its general demandsfor legitimacy.

In these respects, it is arguable that Luhmanns work might have benefitedfrom a less elusive confrontation with Schmitt, and even that Schmitts theorymight propose persuasive alternatives to some of his more unstable conceptions.For instance, Schmitt would evidently have been in a position to explain to

Luhmann that sociological analyses of power have the specific merit, againstpurely normative theories, that they comprehend the ways in which power iscontested throughout society and they demonstrate that no aspect of socialcommunication can be viewed as neutral or irrelevant for power.31 AlthoughLuhmann saw his own theory as consummately sociological, therefore, Schmittmight well have objected that his idea of sociological method was excessivelyobligated to positivistic constructions of society, and it was refracted, in neo-Kelsenian style, through a lens of neutrality and benign political indifference,and so it remained a particularly self-deluding outgrowth of liberal theoretical

ideals.32

Despite his self-definition as the theorist who liberates sociology frompolitical metaphysics, Luhmans work might have been described by Schmitt asa reinstantiation of liberal metaphysics, which defines neutrality, pacification andlegal order as quasi-natural features of modern society.33As an ironic adjunct tothis objection, Schmitt might even have pressed Luhmann to confess his own



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political sympathies, and he might have asserted that, as a neo-liberal, Luhmannin fact deployed the banner of neutrality to introduce concepts, such as differ-entiation, depoliticization, polycentricity, which factually describe a preferred

political and economic condition, and which thus possess far-reaching (or eventotal) implications for socio-political administration. Clearly, in any case, Schmittwould have argued that Luhmanns theory bears witness to the impossibility ofnon-politics, and he might have challenged it to permit its underlying motiva-tions to be interrogated as part of its theoretical content.34

In addition to this, Schmitt might also have made the more powerful pointthat Luhmanns work provides unintentional proof that societies, even if they areconstrued in acentric perspective, are occasionally forced into systemically over-arching descriptions of themselves. That is to say that all societies periodicallyproduce volatile communications which cross and connect some of the manyrationalities of a pluralistic society and require convergent responses within all,or at least some, of this societys different systems. Communications of this typeevolve where the customary neutrality or self-regulating normality of societalexchanges become overladen, or where one system begins to be annexed to thedirectives of a different system. These communications then trigger resonancesor resistances across all society, they create momentary knots of communicationbetween normally differentiated spheres of practice, and they concentrate aroundthe resources of the political system, which ultimately defines and legitimizesitself by its ability to resolve them. The attempt to eradicate political primacy

from society is therefore not plausible.None of this is meant to imply that, in a projected dialogue, Schmitt would

have nothing to learn from Luhmann. On the contrary, Schmitt might be forcedby Luhmann to acknowledge that his dream of a reinflation of power into anintegrally sovereign and fully exclusive account of societys necessary shape isbadly outdated, and was actually already absurd in the 1920s. He might be madeto see that his claim that the presence of one will or one fusion of many wills isan underlying precondition of a legitimately sovereign political order is derivedfrom a redundant set of concepts. Most importantly, he might be obliged to

appreciate that modern political systems are embedded in extremely complex andincreasingly international societies, they maintain interfaces with innumerablemodes of highly pluralized and contingent societal communication, and theirlegitimacy is not always sharply transparent to simple plans, choices, wills ormandates. Schmitts suggestion that the terms of legitimacy are so strict that asociety can only integrate one exclusive vision of its necessary order, and that thestability of all areas of societal exchange depends on their constant reference tothis one vision,35 is thus of little value in examining modern political experience.Most importantly, Schmitt might have to accept Luhmanns view that politics is

always the politics of a plural society, and it can no longer be distilled into anapparatus of dualistically distinguished institutional control.Nonetheless, Schmitt, though perhaps conceding the absurd character of his

monadic fixation of politics on the intensity of the will, might still carry theargument by explaining to Luhmann that no society can evolve to such a degree



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of differentiation that it evades unified experiences of politics, that it renouncesall structural need for legitimacy, or that it loses its susceptibility to political crisis.Indeed, Schmitt might even use Luhmanns own vocabulary to persuade him that

a condition of societal differentiation and pluralization does not produce or requirea less emphatic politics it in fact requires a more emphatic politics (1932a: 37).Modern politics, he might argue, obtains its intensity in those exceptionalinstances where the intricately and plurally differentiated fabrics connectingsocietys systems begin to simplify themselves, and, specifically, where one systembegins to produce communications which are not reconcilable with the plural-istic format of society as a whole and reduce the freedoms constitutive of societysmodern form. Under such circumstances, a society might be pressed, if not toproject a sovereign definition of its emphases and dispositions, then at least, acrossits different systemic fissures, to articulate and defend itself as political, and toprovide politically enforceable accounts of how the inter-environmental relationsof society should be structured. Indeed, on this basis Schmitts assertion that thedemand for legitimacy attaches to many themes, that legitimacy is a space ofuniversally relevant contest, and that highest legitimacy attaches to a constructionof the political which is able positively to offset rival visions of politics, appearsas a crucial corrective to (and even as a paradoxically intuitive re-description of)Luhmanns view of legitimacy as a marginal paradox in societys politics.

As he devoted so much time to showing why he was not like Schmitt, Luhmannmight have been at a loss to find a response to a Schmittian critique of his work.

Of course, he might have observed that this critique, like all critique, is merelytheorys communication, and it does not require an answer, except for its ownauto-communicative perpetuation. However, if Luhmanns theory can commu-nicate (in a rather old-fashioned, discursive sense of the word) it might be forcedto accept the view that societal pluralism depends finally not on the end orde-emphasis of politics, but on its persistence. It might also be forced to concedethat under conditions of differentiation legitimacy is not an entirely diffuse orfading resource, and that, at least intermittently, differentiated societies perhapsmost emphatically require inter-systemically convergent (or political) accounts

of their legitimacy.

Notes

1 Luhmann was generally immune to political invective, but he was very careful todefine the features of his thought in their relation to Schmittian ideas. In a recentimportant historical work, it has been observed that Luhmann hardly ever mentionedSchmitt in his vast oeuvre. This view is surely sustainable, although a little over-stated. However, this description neglects to mention that Luhmann conducted a

debate with Schmitt, which, although incorporating important direct references tohis work, was articulated as a process of theoretical refinement and implicit self-positioning, not in a polemic or discursive attitude (Mller, 2003: 198).

2 This view was expressed in an interview in Italy in 1980. It is quoted here from Wirtz(1999: 1756). This essay is the most extensive alternative treatment of the theme



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of this article. Although it contains many useful insights, it is committed to acultural-analytical interpretation of Luhmanns thought and tends to interpret hiswritings as literary texts, not as constructive political models. It therefore moves ina theoretical terrain which is distinct from that to which my argument refers.

3 For a comparison of Luhmanns binary construction of the political system withSchmitt, see Beyme (1991b: 238).

4 Schmitts view of decisions and their role in generating legitimacy changed through-out his career. In his works of the early 1920s, he set out an exceptionalist theory oflegitimacy, arguing that the personal figure of the sovereign is responsible for makingthe decisions which unite all political resources in the state, and so secure its legiti-macy. In his works of the later 1920s, he altered this claim, and argued that aconstitution could also embody a concrete collective decision and so underwrite thelegitimacy of the state (1928: 238). However, the element of decisionism in his workremained relatively constant until 1933. Close to Schmitt, in his earlier works

Luhmann argued that executive decisions in the political system serve to stabilizeand unify the system, and to remove disruptions from its communication (1966a:114). However, he also stressed, particularly in later works, that decisions are artic-ulations of the contingency and paradoxicality of the systems positive foundations,and they confer unity on the system only as a systemically internal construct of thesystem, not as expressions of a determinate will (1993a: 310). Against Schmitt, heparticularly decried the idea that decisions result from subjective arbitrariness orauthority of position (1993a: 295).

5 For an early formulation of this view, see Narr (1969: 17980). See also Narrs useof Karl Lwiths term, initially employed to characterize Schmitt, to describe Luhmann

as an occasional decisionist (1974: 63).6 For an association of Luhmann with Schmitt in this respect, see Mnstermann

(1969). Mnstermann even saw a recourse to Carl Schmitts concrete-order thinkingin Luhmanns positivist/neutral account of legitimacy (1969: 330). Johannes Weiszalso asserted a similarity between Schmitt and Luhmann. But he was careful todistinguish clearly between Schmitts anti-parliamentary attitude and Luhmannsprocedural or fictionalist account of legitimacy (1977: 82).

7 In his earlier work, Luhmann opted for a proceduralist model of legitimacy whichconstrued the legitimacy of political decisions as determined by the institutionaliza-tion of procedures which confer unquestionable security on decisions by creating

role-playing and integrating environments in which people become accustomed toaccepting decisions as legitimate (1983: 247). In his later works, then, he arguedthat legitimacy in the political system is simply the self-reference or the plausibleself-description of the political system, and that the changing institutional forms ofgovernments claiming legitimacy reflect the evolving displacement of the paradoxi-cal contingency of powers exercise into plausible semantics or self-descriptions (2000:31971).

8 On this, see the integration of Luhmanns functionalism, and the simultaneouscritique of its apparent decisionistic or elite-democratic elements, in the neo-Marxisttheories of legitimacy set out by Habermas and Claus Offe. In his earlier works,

Habermas implicitly saw Luhmanns theory as a technique for decoupling theadministrative system from the legitimatory system, and for concentrating thepolitical system on the objectives of ideological planning (1973: 989). In hisclassically controversial essay on Luhmanns alleged sympathy for technocracy,Frieder Naschold also accused Luhmann of fusing technocratic and elite-democratic



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principles to support his model of legitimacy. He argued that Luhmann deployed anextremely reduced concept of democracy, which restricts the functions of democracyto the execution of prescribed purposes and routinous programmes, and as a resultof which membership participation is limited to the periodic election of leadership

groups (1968: 505). For a wider analysis of the relation between technocracy andneo-conservatism, which implicitly places Luhmann in the peripheries of conserva-tive theory, see Saage (1983: 235).

9 On early accounts of the relation between Luhmanns sociology and Gehlens func-tionalist theory of complexity reduction as institutional alleviation (Entlastung), seeMaciejewski (1972: 153) and Schmid (1970: 208). For later important commentaryon this, see Beyme (1991a: 1718). For Schmitts general impact on technocraticthought, see Mller (2003: 802).

10 Habermas also clearly associated Luhmann with Schmitt. For this point, see therather self-serving and rhetorical essay (Habermas, 1975: 242). On this, in turn, see:

Willms (1975: 55). For later reflections on this, see Habermas (1986: 181).11 Luhmann was keen to distance himself from this brand of neo-conservatism, and he

argued that anxieties about ungovernability, crisis of state and failure of state weremerely dramatized elements of the political systems own communication (1981b:145). Despite this, however, his critique of the policy of self-overburdening incor-porated in the welfare state, and his insistence that a more restrictive understandingof politics would be more appropriate to the states capacities, were surely not farremoved from more standard views in the ungovernability debates (1981b: 155).For a more conventional perspective on the theme of ungovernability, see Hennis(1977). For what is, in my view, the most incisive earlier commentary on Luhmanns

political stance, see Nahamowitz (1988). For background, see Altvater et al. (1979)and Spieker (1986: 101).

12 The sovereignty vested in the President of the Weimar Republic, Schmitt argued,forms the state as a counterweight to the pluralism of powerful social and economicgroups (1931: 159).

13 Representation, as is well documented, is a key concept in Schmitts theory. Repre-sentation, he argued, consolidates government around enduring political ethics, andit allows all society to project and be unified around certain positive principles, stabi-lized in the state. States founding themselves in representative principles obtainlegitimacy through the metaphysical representation of something existential or of

an invisible Being, which is higher than the state itself, and which is reflected in theinstitutional hierarchy or authority of the state (1928: 209). See on this point:Bielefeldt (1994: 58) and Mehring (1989: 55, 61). Against this concept, however,Luhmann observed in lapidary style that under conditions of social complexitythere no longer exists a representation of society in society (1984b: 42).

14 Luhmann eventually responded to accusations that his legal positivization was acovert brand of decisionism by implying that the decisions in law and politics forma reservoir or memory which invariably conditions further decisions, so that nodecisions can ever be fully arbitrary or dependent on individual power of assertion(1995: 39).

15 The decision, Schmitt argued, if viewed in normative terms is born from nothing,and it as this spontaneous other-than-nothing that it generates legitimacy (1922: 38).Similarly, Luhmann explained that the political system must itself spontaneouslyproduce and reproduce the decisions of which it consists, and that its legitimacydepends on this primary decisiveness (1981b: 33).



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16 Luhmann therefore argued that law is validated by the strength of a decision(1970b: 180). On this point, see also Wirtz (1999: 180).

17 Related to this point is the argument in Heidorn (1982: 87).18 There were nuances and vacillations in Schmitts conception of totality. In the early

1920s he argued that the political is always total and that the decision about whatis political is always also total (1922: 7). Later, he was careful to differentiate thetotal state, as a fully representative and decisive executive, from the total state as asocially interventionist party state, exemplified by the NSDAP. At one point, forinstance, he denounced the total parties or the activist parties seeking to dominatethe state in late-Weimar politics, but he defended the other total state: that is, thestate capable of representing a total and pervasive ethic of state, above the particu-lar elements of civil society (1958: 3623).

19 On the decision as the structural paradigm of contingent modernity, see Greven(1999: 14).

20 Schmitts view on the substantial foundation of legitimacy changed markedly overthe different phases of his career. For his claim that national unity is a preconditionof legitimacy, however, see Schmitt (1928: 234).

21 In his earlier work he identified the administration as a social system in its own right.It is only in his later works that he defined it unambiguously as one subsystem ofpolitics (1973: 8).

22 Schmitts functionalist tendency is usually seen to be a product of his occasionaltheoretical closeness to Hans Freyer. Freyer argued that modern political systems areinevitably structured around bureaucratic decisions or plans, and the legitimacy ofthese decisions is not founded in any anthropological facts of human reason, character

or interest (1933: 22).23 Hence Luhmanns occasional proximity to neo-corporate ideas of democratic order

(1987a: 160).24 This is a contentious view on Luhmann, which he would surely see as gravely simpli-

fying his perspectives. However, Luhmann clearly argued that most individualproblems of political regulation must be transported from the legislature into theexecutive, so that the administrative functions of the executive can acquire autonomyand latitude in processing these problems (1966b: 294).

25 For the classic formulation of this claim, see Schelsky (1965). Schelsky argued herethat democracy as government by consensus and common normative will-formation

has been supplanted by government as technocratic reaction to objective exigency(1965: 4556).

26 Recently, both in Germany and elsewhere, Luhmanns social theory has experiencedwhat might be termed a second generation of interpretive reception. The major worksin this reception have, though far less critically than the first generation, once morecompared his sociology with Schmitts work. This line of interpretation, exemplifiedby William Rasch, has assessed Luhmanns work, surely accurately, as a pluralisticdoctrine of societal de-centration, which dismisses the Schmittian claim that thereexists a sovereign politics in society, able to generate rational insights or decisions forall spheres of societal exchange (2004: 44). However, rather than seeing Luhmann

as diametrically opposed to Schmitt, Rasch argues that they overlapped, first, in thefact that both ascribed a distinctive autonomy to politics among other communi-cations, and, second, in the fact that both insisted that politics must preserve astructure of difference (either between politics and other social systems, or betweenone sovereign polity and another) in order for it to produce its legitimacy. In thissecond wave of reception, therefore, Luhmann and Schmitt are interpreted as



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convergent theorists of radical difference, contingency and conflict, both of whomrecognize that human history and society are not driven by a unitary dynamic ofprogress or reconciliation, but are irreducibly pluralistic and shaped by multiplebattles for autonomy (2004: 456). Despite this imputed symmetry, however, this

reading of Schmitt and Luhmann is only able to maintain a rather tenuous associ-ation between them, and it fails adequately to foreground the fact that Schmitt sawthe autonomy of the political system as founded in its primacy over all over socialexchange, whereas Luhman viewed the autonomy of the political as founded in itsequality with other systems. For a generally excellent alternative recent account ofLuhmanns political theory, and for discriminating reflections on its relation toSchmitts decisionism, see Lange (2003: 146). For further recent comparisons ofLuhmann and Schmitt, see Nassehi (2002: 45) and Stheli (2002: 255).

27 Luhmann saw the traces of 1968 as primarily evident in an annoying increase in thestubbornness of individuals, who now feel entitled to interpret private grievances as

political themes (1987a: 152).28 Rightly or wrongly, this expansive politicization is still celebrated as a decisive achieve-

ment of the generation of 1968. See, for example, Eley (2002: 11).29 The hostility to welfare democracy remained a fixed component of Luhmanns work

from the beginning to the end of his theoretical life. Even his posthumous worksfulminate against the extension of the concept of democracy to include perform-ances of provision (2000: 364).

30 At one point he stated clearly that most systems remain ultimately reliant on politi-cally centred power (1988b: 304).

31 All society is political, Schmitt argued, and every exchange in society is the political

instrument of people engaged in concrete conflict (1932a: 67).32 Schmitt famously reviled Kelsens positivist theory of pure law as a view which entirely

misunderstands the relation between law and power, and between law and legitimacy.For Schmitt, neutral accounts of law reflect a metaphysical system of liberalism,imputing natural harmony and neutrality as laws inalienable precondition. Theseaccounts are not appropriate to analyzing state forms under the conditions of socialplurality and intense material antagonism which define modern societies (1923: 45).

33 One key aspect of Schmitts theory is the belief that liberal governments assume thatneutrality and pacification are the natural condition of human coexistence. OnSchmitts view, however, the opposite is factually the case, and the liberal belief in

neutrality and probable social harmony is in fact an element of liberal metaphysics(1923: 45).

34 Excellent on the insistence on empirically grounded political commitment in Schmittstechnique of concept-formation is Seitzer (2001: 26). A recent helpful view on thisis also provided by Stirk (2005: 9).

35 Hence his assertion that only plebiscitary legitimacy is able to hold all disparatesectors of a modern democracy together (1932b: 87).

References

Altvater, Elmar et al. (1979) Vom Wirtschaftswunder zur Wirtschaftskrise. konomie undPolitik in der Bundesrepublik. Berlin: Olle & Wolter.

Beyme, Klaus von (1991a) Ein Paradigmenwechsel aus dem Geist der Naturwissen-schaften: Die Theorien der Selbststeuerung von Systemen (Autopoiesis),Journal frSozialforschung31(1): 324.



23/25

(1991b) Theorie der Politik im 20. Jahrhundert: Von der Moderne zur Postmoderne.Frankfurt am Main: Suhrkamp.

Bielefeldt, Heiner (1994) Kampf und Entscheidung. Politischer Existentialismus bei CarlSchmitt, Helmuth Plessner und Karl Jaspers. Wrzburg: Knigshausen und Neumann.

Clam, Jean (2006) What Is Modern Power?, in M. King and C. Thornhill (eds) Luhmannon Law and Politics: Critical Appraisals and Applications. Oxford: Hart Publishing.

Cristi, Renato (1998) Carl Schmitt and Authoritarian Liberalism. Cardiff: University ofWales Press.

Eley, Geoff (2002) Forging Democracy. The History of the Left in Europe, 18502000.Oxford: Oxford University Press.

Freyer, Hans (1933) Herrschaft und Planung. Zwei Grundbegriffe der politischen Ethik.Hamburg: Hanseatische Verlagsanstalt.

Greven, Michael Th. (1999) Die Politische Gesellschaft. Kontingenz und Dezision alsProbleme des Regierens und der Demokratie. Opladen: Leske + Budrich.

Habermas, Jrgen (1973) Legitimationsprobleme im Sptkapitalismus. Frankfurt am Main:Suhrkamp.

(1975) Theorie der Gesellschaft oder Sozialtechnologie? Eine Auseinandersetzungmit Niklas Luhmann, in J. Habermas and N. Luhmann Theorie der Gesellschaft oderSozialtechnologie Was leistet die Systemforschung? Frankfurt am Main: Suhrkamp.

(1986) Die neue Unbersichtlichkeit. Frankfurt am Main: Suhrkamp.Heidorn, Joachim (1982) Legitimitt und Regierbarkeit. Studien zu den Legitimittstheorien

von Max Weber, Niklas Luhmann und der Unregierbarkeitsforschung. Berlin: Dunckerund Humblot.

Hennis, Wilhelm (1977) Parteienstruktur und Regierbarkeit, in W. Hennis et al. (eds)

Regierbarkeit. Studien zu ihrer Prolematisierung, 2 vols. Stuttgart: Klett, vol. I.Lange, Stefan (2003) Niklas Luhmanns Theorie der Politik. Eine Abklrung der Staatsge-

sellschaft. Wiesbaden: Westdeutscher Verlag.Luhmann, Niklas (1966a) Theorie der Verwaltungswissenschaft. Cologne: Grote. (1966b) Politische Planung,Jahrbuch fr Soozialwissenschaft17(3): 271296. (1967) Soziologische Aufklrung, Soziale Welt18(23): 99123. (1969) Komplexitt und Demokratie, Politische Vierteljahresschrift10: 31425. (1970a) Soziologie des politischen Systems, in N. Luhmann Soziologische Auf-

klrung, vol. I:Aufstze zur Theorie sozialer Systeme. Cologne: Westdeutscher Verlag. (1970b) Positives Recht und Ideologie, in N. Luhmann Soziologische Aufklrung,

vol. I:Aufstze zur Theorie sozialer Systeme. Cologne: Westdeutscher Verlag. (1973) Politische Verfassungen im Kontext des Gesellschaftssystems, I, Der Staat

12(1): 122. (1974) Der politische Code. Konservativ und progressiv in systemtheoretischer

Sicht,Zeitschrift fr Politik21: 25471. (1981a) Selbstlegitimation des Staates, Archiv fr Rechts- und Sozialphilosophie.

Beiheft 15: Legitimation des modernen Staates, pp. 6583. (1981b) Politische Theorie im Wohlfahrtsstaat. Munich: Olzog. (1981c) Machtkreislauf und Recht in Demokratien,Zeitschrift fr Rechtssoziologie

2(2): 15867.

(1983) Legitimation durch Verfahren. Frankfurt am Main: Suhrkamp. (1984a) Staat und Politik. Zur Semantik der Selbstbeschreibung politischer

Systeme, Politische Vierteljahresschrift, Sonderheft 15: Politische Theoriengeschichte.Probleme einer Teildisziplin der Politischen Wissenschaft, pp. 99125.

(1984b) Widerstandsrecht und politische Gewalt, Zeitschrift fr Rechtssoziologie5(1): 3645.



24/25

(1987a) Partizipation und Legitimation. Die Ideen und die Erfahrungen, inN. Luhmann, Soziologische Aufklrung, vol. 4: Beitrge zur funktionalen Differen-zierung der Gesellschaft, 2nd edn. Opladen: Westdeutscher Verlag.

(1987b) Gesellschaftliche Grundlagen der Macht. Steigerung und Verteilung, in

N. Luhmann, Soziologische Aufklrung, vol. 4: Beitrge zur funktionalen Differenzierungder Gesellschaft, 2nd edn. Opladen: Westdeutscher Verlag.

(1988a)Macht, 2nd edn. Stuttgart: Enke. (1988b) Die Wirtschaft der Gesellschaft. Frankfurt am Main: Suhrkamp. (1992) Die Unbeliebtheit der Parteien, Die politische Meinung(37): 511. (1993a) Die Paradoxie des Entscheidens, Verwaltungsarchiv84(3): 287310. (1993b) Was ist der Fall, was steckt dahinter? Die zwei Soziologien und die

Gesellschaftstheorie,Zeitschrift fr Soziologie22(4): 24360. (1995) Das Recht der Gesellschaft. Frankfurt am Main: Suhrkamp. (1997) Die Gesellschaft der Gesellschaft. Frankfurt am Main: Suhrkamp.

(2000) Die Politik der Gesellschaft. Frankfurt am Main: Suhrkamp.Maciejewski, Franz (1972) Sinn, Reflexion und System, Zeitschrift fr Soziologie1(2):

13955.Mehring, Reinhard (1989) Pathetisches Denken. Carl Schmitts Denkweg am Leitfaden

Hegels. Katholische Grundstellung und anti-marxistische Hegelstrategie. Berlin: Dunckerund Humblot.

Mller, Jan-Werner (2003)A Dangerous Mind: Carl Schmitt in Post-war European Thought.New Haven, CT: Yale University Press.

Mnstermann, Jrg (1969) Zur Rechtstheorie Niklas Luhmanns, Kritische Justiz4: 32538.Nahamowitz, Peter (1988) Autopoiesis oder konomischer Staatsinterventionismus?,

Zeitschrift fr Rechtsphilosophie9(1): 3673.Narr, Wolf-Dieter (1969) Einfhrung in die Moderne Politische Theorie, in 2 vols: I: Theo-

riebegriffe und Systemtheorie. Stuttgart: Kohlhammer.Narr, Wolf-Dieter and Runze, Wolfgang (1974) Zur Kritik der politischen Soziologie,

in F. Maciejewski (ed.) Theorie der Gesellschaft oder Sozialtechnologie. Neue Beitrgezur Habermas-Luhmann-Diskussion, Theorie-Diskussion, Supplement 2. Frankfurt amMain: Suhrkamp.

Naschold, Frieder (1968) Demokratie und Komplexitt, Thesen und Illustrationen inder Politikwissenschaft, Politische Vierteljahresschrift9(4): 494518.

Nassehi, Armin (2002) Politik des Staates oder Politik der Gesellschaft? Kollektivitt als

Problemformel des Politischen, in K.-U. Hellmann and R. Schmalz-Bruns (eds) Theorieder Politik. Niklas Luhmanns politische Soziologie. Frankfurt am Main: Suhrkamp.

Rasch, William (2004) Sovereignty and its Discontents: On the Primacy of Conflict and theStructure of the Political. London: Birkbeck Law Press.

Saage, Richard (1983) Rckkehr zum starken Staat? Studien ber Konservatismus, Faschis-mus und Demokratie. Frankfurt am Main: Suhrkamp.

Schelsky, Helmut (1965) Der Mensch in der wissenschaftlichen Zivilisation, in H. Schelsky,Auf der Suche nach Wirklichkeit. Gesammelte Aufstze. Dsseldorf: Diederich.

Schmid, Gnther (1970) Niklas Luhmanns funktional-strukturelle Systemtheorie. Einewissenschaftliche Revolution?, Politische Vierteljahresschrift11: 186218.

Schmitt, Carl (1922) Politische Theologie. Berlin: Duncker und Humblot. (1923) Die geistesgeschichtliche Lage des heutigen Parlamentarismus. Berlin: Duncker

und Humblot. (1927) Volksentscheid und Volksbegehren. Ein Beitrag zur Auslegung der Weimarer

Verfassung und zur Lehre von der unmittelbaren Demokratie. Berlin and Leipzig: Dunckerund Humblot.



25/25

(1928) Verfassungslehre. Berlin: Duncker und Humblot. (1931) Der Hter der Verfassung. Berlin: Duncker und Humblot. (1932a) Der Begriff des Politischen. Berlin: Duncker und Humblot. (1932b) Legalitt und Legititimitt. Berlin: Duncker und Humblot.

(1958) Weiterentwicklung des totalen Staats in Deutschland, in C. Schmitt, Verfas-sungsrechtliche Aufstzeaus den Jahren 19241954. Materialien zu einer Verfassungslehre.Berlin: Duncker und Humblot.

Seitzer, Jeffrey (2001) Comparative History and Legal Theory: Carl Schmitt and the FirstGerman Democracy. Westport, CT: Greenwood Press.

Spieker, Manfred (1986) Legitimittsprobleme des Sozialstaats. Konkurrierende Sozialstaats-konzeptionen in der Bundesrepublik Deutschland. Bern/Stuttgart: Haupt.

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