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

him within the political landscape of the 1960s, and to brand him as an exemplar
of 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 influential
critic of social democracy and state-led welfarism. At this time, again, the impu-
tation of Schmittian impulses to his theory served to facilitate a conveniently
historicized classification of his work, and it permitted its distinctive importance
to be relativized.

The question of how Luhmann’s work was related to Schmitt consequently

throws important light on the theoretical history of the FRG, and some of the
more sensitive fault-lines in recent German political culture become visible
through an inquiry into this question. Because of this, consideration of this issue
also illuminates the broader discursive preconditions of Luhmann’s theoretical
evolution, and it offers a key to understanding how he reflected on his own
(notoriously elusive) political attitude, and how he placed himself within the wider
political terrain.

The greatest significance attached to this question, however, is

linked to the fact that in his reaction to Schmitt Luhmann sought to counter-
act Schmitt’s extremism by proposing a theory of society which renounced all
exceptionalism and all traces of political ontology, and which developed a socio-
theoretical methodology capable of interpreting the politics of modern society as
entirely unemphatic. In one of his rare direct pronouncements on Schmitt, there-
fore, he explained that he was not convinced by Schmitt’s theory, and he
described a ‘good politics’ as one whose ‘capacity for realization’ does not require
the concentration of society around volatile or deeply experienced political
contests.

In consequence, in addition to its discursive importance, a reconstruc-

tion of Luhmann’s approach to Schmitt frames an analysis of two counterposed
accounts of the politics of social modernity, and it addresses the question of how
and whether modern society still remains specifically political, and of whether
the advent of ‘modernity’ in a society means that this society loses its structural
experiences of politics, power and legitimacy. For this reason, a comparative
analysis of Luhmann and Schmitt also enables a clarification of the political
components of Luhmann’s work, and it places the tenability of his founding
political claims in a stark critical light.

The End of Political Totality

The early identification of Luhmann with Schmitt focused on four salient points.
First, Luhmann’s 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 replicate
Schmitt’s earlier theory of the autonomy of politics. Specifically, this argument
was seen to reflect Schmitt’s claim that the political system is formed as political
through its binary self-differentiation, through its exclusion of all heterogenous

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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).

It was there-

fore suspected that the binary structure of the system/environment relation in
Luhmann’s sociology contained a surreptitiously anti-pluralistic model of systemic
formation, which transposed Schmitt’s exceptionalist definition of sovereignty
into a functionalist account of the modern political order.

Second, it was also inferred, as a consequence of this, that Luhmann’s social

theory veered towards an attitude of political decisionism. His claim that the
primary function of a political system is the ‘production of binding decisions’
(1970a: 159), or of ‘collectively binding decisions’ (1984a: 102), and that the
decisions made by a political system serve positively to unify and legitimize this
system against its unstructured environment, was habitually taken as a sign of
Schmittian affinity.

Luhmann’s early theory of the decision was integrated into

an analysis of the political system which stated that the modern political system
is triadically differentiated into three subsystems – politics, administration, and
public. In this system, the symbolic executive functions of politics have a primary
role in generating legitimacy for the entire political system, and the executive
makes 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 symbolic
acclamation 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.

Third, Luhmann’s sociology was also often seen as a theory which reproduced

Schmitt’s central claim that law cannot provide constitutive terms for political
legitimacy, and that laws obtain legitimacy (that is, following Weber, the power
to command obedience) for reasons which rational analysis of law’s content can
neither comprehend nor prescribe (1923: 56).

This critique focused in partic-

ular on Luhmann’s assertion that rationally acceded norms are not an external
precondition of legitimacy in politics (1981a: 69), and that political systems
describe themselves as legitimate in highly varied and deeply paradoxical ways,
which cannot be condensed into normative postulates.

His theory was therefore

often construed as one which attacked the central liberal idea of legality as the
safeguard of democracy, which denounced the liberal belief that law and legal
norms can produce societal conditions of pacification and legitimized compli-
ance, and which assumed that law’s legitimacy relies on the pre-existence of a
stable political order, in which law itself is a subsidiary variable.

Fourth, early receptions of Luhmann’s work also took issue with his hostility

to integrative ideas of welfare or participatory democracy, and they claimed that
his theory of decisions was marked by a technocratic approach to legitimate
governance.

In this regard, Luhmann’s work was placed on a continuum with

Schmitt’s theories of the last years of the Weimar Republic. At this point in his
trajectory, Schmitt slightly altered his exceptionalist theory of sovereignty, and
he advocated a restriction of the state’s regulatory and distributory responsibility
(see Cristi, 1998: 200–11), and a devolution of political authority to the political

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administration, albeit under commissarial or presidential control (1932b: 81).
This inference of a technocratic symmetry between Luhmann and Schmitt was
in fact widened to incorporate the claim that there existed a larger lineage of
technocratic theorists; this, it was claimed, began with Schmitt and ended with
Luhmann, but it also included the conservative functionalist theorists of bureau-
cracy whose works set the contours of debate in post-1949 Germany, especially
Hans Freyer, Arnold Gehlen, Ernst Forsthoff and Helmut Schelsky.

On these

grounds, a view of Luhmann was allowed to circulate which saw his political
theory as a design for government by technologically empowered administrators
and semi-independent prerogative elites, whose competence was decoupled from
active or participatory social groups and dedicated to narrowly political tasks of
consensus-manufacture and planning. Jürgen Habermas was especially respon-
sible for this technocratic categorization of Luhmann, and he, with other critics,
saw Luhmann’s systems theory as symptomatic of a rising Schmittian under-
current in the political culture of the FRG in the 1970s.

In this respect,

moreover, Luhmann was also identified as a post-Schmittian contributor to the
debates about ‘ungovernability’, which resonated through right-wing protests
against expansive ideas of democratic distribution in the FRG in the late 1970s.

These accusations were sensitive and multi-faceted enough for Luhmann to

respond to them in deliberate (although normally implicit) manner. On the first
point of criticism, even in his earliest writings Luhmann designed his account of
the binary differentiation of the political system as a repudiation of Schmitt’s
claim that the political system assumes a status of primacy in modern society, or
that this system is positioned dualistically or exclusively above other social
systems. He insisted instead that no system of society can assume measurable
priority over any other system, and, consequently, that politics cannot impute to
itself responsibility for regulating areas of society which are not internal to its
own relatively narrow communications. Luhmann’s account of politics as formed
by its difference from what is not political can consequently not be seen as an
exclusionary 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) construct
themselves as plurally, non-hierarchically, and inclusively autonomous (1981b:
22–3). For this reason, the Schmittian argument that the state is distinct from
society and that, in obtaining sovereignty, it positions itself in a dominatory
duality towards the plural associations which society comprises, is, for Luhmann,
a naïve and counter-factual claim.

In this respect, Luhmann implied that Schmitt’s conception of the political

system as a sovereign fulcrum of society fails to recognize that modern societies
have evolved as polymorphously differentiated and decentred societies, and that
each system of modern society contains a distinct type of rationality (1967: 106).
The contents of one systemic rationality cannot be generally transmitted across
inter-systemic boundaries, and no system can observe or intercept problems in
other systems without transforming these, rather unpredictably, in accordance

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with its own rationality. It is, Luhmann therefore claimed, not possible to assume
that one particular system containing one particular rationality can possess a
central or sovereign role in society. It is not possible to ‘centre a functionally differ-
entiated society on politics without destroying it’ (1981b: 22–3), and a condition
of political sovereignty would entail a traumatic societal de-differentiation, in
which the fragile web of differentiated autonomy and pluralized rationalism
constitutive of society’s modernity would be thrown back into a state of anti-
quated monism.

Luhmann consequently viewed Schmitt’s category of political sovereignty as

a 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. In
response to such theories, in fact, Luhmann argued that sovereignty is merely an
evolutionary semantic of the political system. The idea of sovereignty, he argued,
evolved as a paradoxical term or a fiction through which, at the threshold of
societal 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 determinately political set of meanings (1984a: 103). However,
as society subsequently progressed into a condition of full modernity and total
differentiation, inflated concepts of the sovereign state rapidly outlived their
semantic utility, and in late modern societies these concepts tend to disable
adequate socio-political analysis. Indeed, concepts of sovereignty often create the
harmful appearance that all problems can be uniformly resolved by the functions
of representation or rationality embodied by the political system, and this normally
leads to a functional overburdening of the political system.

Luhmann conse-

quently derided Schmitt’s thought as guided by ‘an unsurpassed sense for the
redundant’ (2000: 333), and he dismissed his post-theological concept of sover-
eignty as a more or less wittingly ‘absurd’ attempt to found the contingent sources
of modern power in the acts of one creative will (1992: 8).

On the second point, Luhmann acknowledged that his description of politics

as a social system making collectively binding decisions has a certain proximity to
Schmitt’s earlier decisionism.

Indeed, this aspect of his social theory echoes

Schmitt both in the claim that a political system is constituted and unified by
its decisions, and in the claim that these decisions at once found and endlessly
re-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 political
system to differentiate itself from other systems and to describe itself to itself
as a positive and integral form of order.

Both Schmitt and Luhmann thus

construed 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 the
laws covered by its sanction, as legitimate (see Luhmann, 1967: 116). For all
the seeming absurdity of Schmitt’s attempt to deduce the positive legitimacy
of the state from its analogy to God’s sovereign will, therefore, Luhmann surely
identified a dialectical element of modernity in Schmitt’s 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 that
the decision is a figure for the moment where legal and political contingency is
stabilized as legitimacy.

In this respect, both Luhmann and Schmitt exemplified

an attitude of extreme legal-political positivism, and both accepted that law and
politics 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 of
decisions’ is the essence of the ‘concept of legitimacy’ (1983: 31).

Despite this clear convergence, however, Luhmann was also quite clear about

the ways in which his theory of the decision differs from that proposed by
Schmitt. He denied, for example, that decisions giving legitimacy to politics are
the exceptional acts of sovereigns, or even of particular persons (Beyme, 1991b:
239). He indicated instead that decisions are simply enactments of the code by
which politics constructs itself as differentiated and autonomous: that is, the code
government/opposition. This code is a binary matrix through which the politi-
cal system decides which elements in its environment are relevant to politics, and
then communicates with itself about its decisions over these elements. These
decisions, however, are not decisions of the will: they are decisions of a code, and
it is a matter of relative insignificance for the system which person or which will
factually enacts them.

The decision of the political system, moreover, is never

the decision of a sovereign, and certainly not, in a Schmittian sense, of a total
sovereign.

This decision can never project a total or exceptional vision of what

is right and good for all society, and it can never force all society to centre itself
and its communications on this total or exceptional vision. The decision of the
political system, rather, is always partial, differentiated, and revocable. A modern
society can never confront itself totally in a decision, and it can never be brought
into an exceptional or total account of itself, for both society and society’s politi-
cal system make many (very unexceptional) decisions, and these decisions cannot
be generalized into absolutely exclusive options or choices for all spheres of
society at the same time.

If Luhmann was a decisionist, in consequence, he was a decisionist who sought

to demystify decisions and who saw the dramatic totalization of decisions as a
modern absurdity. Decisions, he implied, merely externalize the self-referential
contingency of the political system, and they allow the political system legiti-
mately to actualize itself as something (and specifically as something political ), and
so as marked by its difference from nothing (2000: 47). The decision is an act
of 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 Western
society, 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:
79–95). 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 politics
communicates about itself decisively precisely because of its irreducible contin-
gency.

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 between

himself and Schmitt’s anti-liberalism. Like Schmitt, he argued that governmen-
tal or juridical legitimacy depends neither on rationalized evidence of legal validity
nor on justifications of legal compliance produced outside the political system.
The legitimacy of political decisions, he stated, is ‘to a large extent independent
of the consensus of those affected by them’ (1983: 209), and normative philoso-
phical analysis of the conditions under which ‘political domination is legally
acceptable’ tends to present highly simplified and selective accounts of legitimacy
(1970a: 159). He therefore claimed, like Schmitt, that there are no rational laws
which are formative of political legitimacy, that legitimacy cannot be measurable
in law, and that the legitimacy which underwrites laws likely to be met with
compliance is a conclusively positive and historically contingent commodity,
supported by a ‘responsible decision’, not by a rational norm, in the political
system (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,
contra Schmitt, he asserted that although legitimacy resists normative-conceptual
stabilization, it should not be assumed that the application of power by posi-
tively legitimized political systems involves a drastic violation of societally
inscribed 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 exist
independently of law. On the contrary, he argued that in differentiated societies
political power can never be transmitted in vertical, prerogative or sovereign form,
but must in fact be transposed into an iterable medium (law), which creates
multiple opportunities for compliance throughout society and diminishes the
probability that obdurate resistances to power’s 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 institutional
structure of a legal state [Rechtsstaat] (1997: 357). Power which is not legally
formed and which remains concentrated at uniquely personalized points of
communication in the political system cannot be effectively utilized in modern
social communications. Like more orthodox liberals, therefore, Luhmann argued
that societies whose political systems enjoy legitimacy normally promote a high
degree 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.

Schmitt’s attack on the normative or liberal-Kantian claim that legality is the

precondition of legitimacy was quite fundamental. He argued that law only
obtains legitimacy if it is underscored by a substantial pre-legal or political
foundation, 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.
Luhmann’s anti-normative view of legitimacy, however, was altogether more
circumspect and dialectical. Far from replicating Schmitt’s ideas, he argued that
it is just as fallacious to claim that law’s validity requires political substances
existing outside law (for example, a strong executive personality, a unified national
culture, or a basis of racial homogeneity)

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 through
their own communications, and through the semantics and self-descriptions
which they are able to initiate in order to render their applications consistent
and plausible. Despite this, however, he also suggested, against Schmitt, that
there exists a high societal probability that modern power will be a medium of
communication which is interdependent with law.

On the fourth point, finally, Luhmann also clearly moved his thought onto

terrain normally associated with Schmitt, and his threefold differentiation of
the political system into politics, administration and public surely mirrors certain
aspects of Schmitt’s more technocratically inflected observations. Luhman’s sub-
divided construct of the political system implies, first, that the symbolic or decisive
resources of legitimacy in politics are generated from above, by the executive. The
executive, 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 political
system: that is, to the administration (1966b: 294).

Crucially, Luhmann defined

the administration as the legislative component in the political system. He saw the
administration as a political subsystem which, working within the constraints set
by political decisions, intercepts communications from the public, and reshapes
policies, programmes or decision premises, so that these assume an adequately
generalized form (the form of law) (1981b: 45, 64). He therefore claimed that
legislation, to a large extent, is the result of bureaucratic procedure, evolving at
the point of intersection between the public and the political administration, and
that common views on legislation as a manifestation of consensus or agreement
are highly reductive (1981b: 45). Laws, he explained, might be formed through
personal discussion between cabinet members and high-ranking civil servants,
through the parliamentary drafting of bills and papers, through exchanges and
arrangements between sub-governmental lobbies and members of the state
bureaucracy, 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 were

alarmed by the symmetries between this model of politics and the theoretical
features of Schmitt’s more functionalist works.

Above all, the works of Luhmann

and Schmitt converged – however sporadically – in their common claim that

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politics is a formal sphere of planning or programmatic policy-making, which
creates the originating sources of legitimacy for all political communications, but
which remains relatively independent of the technical processes of legislation and
societal regulation.

For this reason, both claimed, most specific functions of

government should be delegated (through plans and strategic decisions) to the
state administration. The works of both Schmitt and Luhmann consequently
contain an implicit doctrine of executive democracy, which identifies the functions
of democratic governance as acts within a densely ramified bureaucratic executive,
not as constitutively responsive communications between political institutions
and civil society.

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 correct
when they claim that modern governance necessarily revolves, not around sub-
stantial consensus, but around the administration of functionally adequate solu-
tions for technical problems.

Politics, he argued, cannot be other than a set of

technical operations, and it has no primary association with founding human
interests, rationalities or dispositions (1969: 315). Modern political legitimacy,
therefore, is not obtained by rational-normative selections, but by the political
system’s evolution of a ‘higher flexibility’, which allows it to respond effectively
to the complex environments of modern society, and by its ability to condense
its 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, and
the idea that the political system has suddenly gained access to technological
instruments which permit it to subject all areas of social communication to exact
regulation is without substance. However expansive its technological resources
might be, he argued, a political system does not have the capability to elaborate
plans which can be congruently imposed across all society. A political system is
surrounded by many rationalities and by many environments, and it cannot
evolve cognitive or technical capacities adequate to all facts and all rationalities
in its environments. For this reason, he argued, the element of planning – or of
technocracy – is always the weakest or most contingent moment in the political
system (1966b: 296), and no political system can guarantee that it can reliably
use technology or technical goods to transform particular plans into universally
consistent or reliable directives. For Luhmann, therefore, attitudes to technocracy
which are either enthusiastic or anxious suffer equally from an inflated vision of
politics, 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 of
politics in modern society.

In its entirety, Schmitt’s work marks a lament on

the 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). His
theory is consequently marked by a resolve to re-inflate the political, and where
possible, to coerce society into totalized constructions of itself, distilled into
dramatized ideas of political sovereignty and authority, centred in the state. In its
entirety, in contrast, Luhmann’s work effaces the pathos from politics, it happily
accepts polycracy or polycentricity as the evolved condition of modern societal
pluralism, and it denies that society can ever be politically total, or that one mode
of rationality can explain or configure society as totality. For these theoretical
motives, Schmitt normally identified himself with political associations which,
in his opinion, sought to maximize the political content and emphasis in society
and to ensure that as many aspects of social decision-making as possible were
determined by centrally concentrated (or total) decisions. In contrast to this,
Luhmann tended to identify himself with political positions which diminished
the convergence of society around its politics, and which attempted to limit the
number of themes deemed susceptible to coupling with politics. As a (broadly
defined) liberal theorist, Luhmann expressed contempt for the political coloniz-
ation of differentiated social systems under totalitarian governments, which he
saw as marking a ‘retrogressive development in the differentiation of politics and
economy’ (1981b: 29). In addition, he reviled the expansion of the boundaries
of the political promoted by the student movement around 1968 and the New
Left thereafter,

which endeavoured to transform education, science and the

family into sites of intensely politicized conflict and polemic.

Moreover, he also

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

and he saw the radical-democratic widening of politics to integrate popular
participation as a ‘disaster’ (1987a: 154). In his own stretch of history, therefore,
Luhmann defined himself against Schmitt as a theorist of anti-politics, not of
total politicization. As a consequence of its differentiation and its many-featured
environmentality, he claimed, modern society is a specifically un-politicized or
even un-powered society (Clam, 2006: 152). Attempts (of whatever political
persuasion) 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 society’s politics, then, Luhmann also claimed that theory

which emphasizes politics as society’s centre suffers from a cognitive or socio-
epistemological deficiency, and it lags behind a state of reflexive adequacy to the
plurally differentiated nature of modern society. Such theory omits to acknowl-
edge the contingency and multiplicity of the rationalities which steer individual
systems in modern society, and it ignores the fact that plurality and distinction,
not structure and convergence, are the sources of cognition in a systemically
differentiated society. Such theory constructs society as political, and as reliant on
central legitimacy, because it selectively and counter-factually imputes a uniform
and quasi-ontological substrate of human reason, human character and human
interest 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 of
extreme societal pluralism one privileged social system (politics) can translate the
contents of this human substrate into publicly representative power and, in
consequence, legitimately extend its power, as sovereignty, to dominate and to
determine all different systems and different social rationalities. At the heart of
theory which commits itself as political or politological, in consequence, is a
rather facile sequence of theoretical selections and options which enable theory
to insinuate an ontologically or anthropologically generalized political rationality
into society, and then to deduce society’s necessary structure from this insinua-
tion. Only theory which thinks sociologically, however, is fully able to understand
the decentred place of power and politics in modern society (1993b: 255), and
to prevent the political collapsing or de-differentiation of society into simplistic
generalizations of its content. Sociology, thus, is defined by Luhmann as an
interpretive methodology which abdicates all reliance on foundational ontology
and which, as a result, eradicates all traces of acute political emphasis from
societal analysis.

A Societal Political System?

Despite Luhmann’s 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 and
his resolute de-politicization of social communication, and, as a result, they also
throw quite distinct light on the question of his relation to Schmitt.

First, critical interpreters of Luhmann’s work might identify certain internal

contradictions in his conception of power, and of its social functions, and these
contradictions might be seen to detract from his wider analysis of the political
system. Clearly, Luhmann sought, against Schmitt, to promote a fully sociological
account of power. To this end, he denied that society in its totality is organized
around power; he denied that society, in its diffusely pluralistic shape, can assume
a distinctive and convergent density around political contents or decisions; and
he denied that legitimacy in a political system can constitute or underpin the
legitimacy of other social communications. The legitimacy of power, therefore,
is the political system’s paradoxical self-description as legitimate, and this legiti-
macy is neither produced by, nor does it emphatically affect, the communications
of other social systems.

Nonetheless, this aspect of Luhmann’s theory remains one of its more precarious

conceptual components, and even a strictly immanent reconstruction suggests
certain ambiguities in his restriction of power to the political system. At times,
for example, Luhmann expressly acknowledged that other social systems re-route
power 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, all
other 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 they
evolve political systems which, because they are differentiated and self-stabilizing,
are able to ‘open up, develop and cultivate’ a ‘plurality of distinct foundations of
power’. In such pacified societies, in consequence, it is perfectly conceivable that
power might attach itself to the ‘free labour contract’, through which qualified
social 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 beyond
the limits of the political system, and it allows a generalized increment of power
‘in society as a whole’ (1970a: 160). In addition to this, moreover, Luhmann also
periodically 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 in
the political system is counterbalanced (1987b: 122). On these grounds alone,
it might be suggested that Luhmann’s interpretive apparatus struggles to limit
power to the political system, and it implicitly accepts that power (perhaps
uniquely among the different social systems) is a universally relevant medium.

If viewed from a more external perspective, however, Luhmann’s work contains

even 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 the
modes of comportment favoured by these rituals, are not steered by, and in turn
help to consolidate, political power. Likewise, it might also be asked why the
orientation of society around certain economic practices is not seen as deter-
mined by acts of coercion which cannot be de-coupled from political power, and
thus 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 solely
determined 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 the
most polycentric societies power is distinct from other media of communication:
that it is applied and reinforced across systemic boundaries, and it gives rise to
what might be called structural knots, or cases of concentrated over-layering, at
the interface between different systems. It is also arguable, therefore, that the
relative neutrality of power in Luhmann’s sociology is sustained by a rather
puristic definition of what power is, and this could be productively counteracted
by a more micro-analytical approach to the contents of communications other
than politics. If this critical objection is accepted, it might be argued that politics
cannot evolve to the level of differentiation which characterizes other systems,
and that modern society cannot be accounted for without sporadic moments of
eminently political convergence and inter-systemic density. Indeed, it might also

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be argued that in these moments of concentrated overlayering between politics
and 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 be
doubted whether the political system’s communication about itself as legitimate
can 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 Luhmann

was not fully able to demonstrate why power in the political system should not
be 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 it
makes collectively binding decisions. If these decisions are collectively binding, it
must surely be presumed that they articulate communications across systemic
boundaries, and they construct and provide central regulation or resolution in
those instances where society as a whole needs power. Luhmann was notoriously
oblique in defining the conditions under which society has a requirement for
generalized power, but it might be surmised that he saw the application of gener-
alized power as necessary in those situations where communications occurring at
the 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 and
communicate about one issue in irreconcilably divisive manner, and if this issue
cannot be resolved, without an external construction, in a manner satisfactory
for both systems. An example of this might be a case of dispute between religious
and educational institutions over the content of pedagogic material, in which a
political decision might be required to clarify points of policy and to re-mark the
line of differentiation between religion and pedagogics. Similarly, a need for
general power might occur if a problematic communication in one system means
that this system forms a dense coupling with a different system, such that this
coupling impedes the communications of one or both of these systems, meaning
that the relation between these systems can only be normalized by means of a
third system’s intervention. An obvious example of such a situation might be a
case of widespread judicial corruption, introducing monetary values into the
law and causing legal communications to become unreliable and to resonate in
alarming or destabilizing manner for communications in the political system and
other systems. In such a case, a political decision might be needed to regulate or
remove the corruption, and to restabilize legal communications around their own
proper coding. It might even be possible to imagine a case of mass impoverish-
ment induced by specific practices or strategies in the economy, causing economic
communications to become unsettling for the law, for medicine, or even for
education, and so demanding palliative political intervention in the economy.

It might be presumed, therefore, that the enforcement of a collectively binding

decision 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 beyond
the boundaries of this system, and in which all society, or at least a number of
society’s systems, enter a state of real or possible de-differentiation. Society needs
general political power, in other words, where different social systems coalesce
around problematic couplings, where these couplings render unstable the obser-
vational capacities through which these different systems construct their own
differentiated environments, and where they risk undermining the plurality and
differentiation of society in its totality. This, intriguingly, raises the question of
whether, on Luhmann’s account, there are moments in society’s communications
about itself where a widespread and endemic disruption (or exception?) can occur,
and where only a generalized political decision is able to reconstitute conditions
of normalcy. This raises the further question, then, of whether the problems
evolving in systems other than politics, and finally needing general political reso-
lution, are not in themselves intrinsically political. These problems dramatically
politicize the systems in which they originate, they generate political problems
for all society, and they ultimately become constitutive objects of determinately
political irritation, communication and decision. This, moreover, raises the addi-
tional question of whether a political system is not finally required to legitimize
itself by deciding on political problems emerging in other areas of society, and
of whether its legitimacy is not factually defined by its ability to mark itself as a
centre of higher (or highest) rationality in society. The supreme function of
Luhmann’s 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 its
own political rationality. To do this, following Luhmann’s own cognitive scheme,
the political system must have the ability to construct for itself ways in which
the rationality of one system might perceive communications in the rationality
of a different system, and it must be able to manufacture solutions to social
problems which are simultaneously commensurate with the rationalities of a
number of society’s 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 by
referring to this image.

This leaves the paradox for Luhmann that in order to

maintain society’s differentiation politics must sporadically de-differentiate its
own relation to other systems of society, and it must deploy cognitive resources
which are adequate to the internal communications of a plurality of different
social systems. For this reason, Luhmann’s account of society as un-powered is
not always sustainable, and his work cannot suppress the claim, first, that politics
has an occasional primacy among social systems; second, that it possesses rational
resources which cannot be restricted to one set of systemic functions; third, that
there are moments in which society as a whole communicates politically about
itself and, finally, obtains heightened stability or renewed normalcy because of
the political system. In such moments, most crucially, the ability of the political
system to demonstrate competence in de-differentiation is a condition of its
legitimacy: 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 a
number of social systems at the same time.

The Re-entry of Politics

The debate about the relation between Luhmann and Schmitt might thus, on these
three counts, be substantially recast. Earlier analyses of this question suggested that
Luhmann tried, but failed, to suppress a Schmittian affiliation. In fact, it is closer
to the truth to assert that Luhmann attempted to eliminate all Schmittian, or
indeed all emphatically political, elements from his sociology – but that society,
even in the condition of differentiated modernity which Luhmann imputed to
it, evaded description in such radically anti-Schmittian categories and persisted in
its dominant political structures. For all his ambition to conceive society merely
as society, without any necessary ontological or political substructure, the suspi-
cion presents itself through Luhmann’s work that society cannot be stripped of
its eminent politicality, and that it cannot be rendered so pluralistically diffuse
that it relinquishes all universally relevant (political) conflicts and all universally
relevant (political) appeals to rationality. The story of the relation between
Luhmann and Schmitt, therefore, is not the story of a furtive debt or of a
covert alliance. It is the story of a recurrent interruption of Luhmann’s thought
by immanent contradictions, many of which are caused by his attempt, contra
Schmitt, to depreciate society’s politics. Underlying the political aspects of
Luhmann’s sociology is the submerged sense that society is never just society,
and, where its differentiated systemic normalcy is threatened, it is always capable
of momentarily configuring itself around its politicality and its general demands
for legitimacy.

In these respects, it is arguable that Luhmann’s work might have benefited

from a less elusive confrontation with Schmitt, and even that Schmitt’s theory
might 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, against
purely normative theories, that they comprehend the ways in which power is
contested throughout society and they demonstrate that no aspect of social
communication can be viewed as neutral or irrelevant for power.

Although

Luhmann saw his own theory as consummately sociological, therefore, Schmitt
might well have objected that his idea of sociological method was excessively
obligated 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.

Despite his self-definition as the theorist who liberates sociology from

political metaphysics, Luhman’s work might have been described by Schmitt as
a reinstantiation of liberal metaphysics, which defines neutrality, pacification and
legal order as quasi-natural features of modern society.

As an ironic adjunct to

this 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, Luhmann
in 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 even
total ) implications for socio-political administration. Clearly, in any case, Schmitt
would have argued that Luhmann’s theory bears witness to the impossibility of
non-politics, and he might have challenged it to permit its underlying motiva-
tions to be interrogated as part of its theoretical content.

In addition to this, Schmitt might also have made the more powerful point

that Luhmann’s work provides unintentional proof that societies, even if they are
construed in acentric perspective, are occasionally forced into systemically over-
arching descriptions of themselves. That is to say that all societies periodically
produce volatile communications which cross and connect some of the many
rationalities of a pluralistic society and require convergent responses within all,
or at least some, of this society’s different systems. Communications of this type
evolve where the customary neutrality or self-regulating normality of societal
exchanges become overladen, or where one system begins to be annexed to the
directives of a different system. These communications then trigger resonances
or resistances across all society, they create momentary knots of communication
between normally differentiated spheres of practice, and they concentrate around
the resources of the political system, which – ultimately – defines and legitimizes
itself 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 forced
by Luhmann to acknowledge that his dream of a reinflation of power into an
integrally sovereign and fully exclusive account of society’s necessary shape is
badly outdated, and was actually already absurd in the 1920s. He might be made
to see that his claim that the presence of one will or one fusion of many wills is
an underlying precondition of a legitimately sovereign political order is derived
from a redundant set of concepts. Most importantly, he might be obliged to
appreciate that modern political systems are embedded in extremely complex and
increasingly international societies, they maintain interfaces with innumerable
modes of highly pluralized and contingent societal communication, and their
legitimacy is not always sharply transparent to simple plans, choices, wills or
mandates. Schmitt’s suggestion that the terms of legitimacy are so strict that a
society can only integrate one exclusive vision of its necessary order, and that the
stability of all areas of societal exchange depends on their constant reference to
this one vision,

is thus of little value in examining modern political experience.

Most importantly, Schmitt might have to accept Luhmann’s view that politics is
always the politics of a plural society, and it can no longer be distilled into an
apparatus 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 the
argument 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 renounces
all structural need for legitimacy, or that it loses its susceptibility to political crisis.
Indeed, Schmitt might even use Luhmann’s own vocabulary to persuade him that
a condition of societal differentiation and pluralization does not produce or require
a less emphatic politics – it in fact requires a more emphatic politics (1932a: 37).
Modern politics, he might argue, obtains its intensity in those exceptional
instances where the intricately and plurally differentiated fabrics connecting
society’s systems begin to simplify themselves, and, specifically, where one system
begins to produce communications which are not reconcilable with the plural-
istic format of society as a whole and reduce the freedoms constitutive of society’s
modern form. Under such circumstances, a society might be pressed, if not to
project a sovereign definition of its emphases and dispositions, then at least, across
its different systemic fissures, to articulate and defend itself as political, and to
provide politically enforceable accounts of how the inter-environmental relations
of society should be structured. Indeed, on this basis Schmitt’s assertion that the
demand for legitimacy attaches to many themes, that legitimacy is a space of
universally relevant contest, and that highest legitimacy attaches to a construction
of the political which is able positively to offset rival visions of politics, appears
as a crucial corrective to (and even as a paradoxically intuitive re-description of )
Luhmann’s view of legitimacy as a marginal paradox in society’s politics.

As he devoted so much time to showing why he was not like Schmitt, Luhmann

might 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 merely
theory’s communication, and it does not require an answer, except for its own
auto-communicative perpetuation. However, if Luhmann’s theory can commu-
nicate (in a rather old-fashioned, discursive sense of the word) it might be forced
to accept the view that societal pluralism depends – finally – not on the end or
de-emphasis of politics, but on its persistence. It might also be forced to concede
that under conditions of differentiation legitimacy is not an entirely diffuse or
fading resource, and that, at least intermittently, differentiated societies – perhaps
most 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 to

define the features of his thought in their relation to Schmittian ideas. In a recent
important historical work, it has been observed that Luhmann ‘hardly ever mentioned
Schmitt 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 to
his work, was articulated as a process of theoretical refinement and implicit self-
positioning, not in a polemic or discursive attitude (Müller, 2003: 198).

2 This view was expressed in an interview in Italy in 1980. It is quoted here from Wirtz

(1999: 175–6). 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 a
cultural-analytical interpretation of Luhmann’s thought and tends to interpret his
writings as literary texts, not as constructive political models. It therefore moves in
a theoretical terrain which is distinct from that to which my argument refers.

3 For a comparison of Luhmann’s binary construction of the political system with

Schmitt, see Beyme (1991b: 238).

4 Schmitt’s 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 of
legitimacy, arguing that the personal figure of the sovereign is responsible for making
the 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 a
constitution could also embody a concrete collective decision and so underwrite the
legitimacy of the state (1928: 238). However, the element of decisionism in his work
remained relatively constant until 1933. Close to Schmitt, in his earlier works
Luhmann argued that executive decisions in the political system serve to stabilize
and 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 system’s positive foundations,
and they confer unity on the system only as a ‘systemically internal construct’ of the
system, not as expressions of a determinate will (1993a: 310). Against Schmitt, he
particularly decried the idea that decisions result from ‘subjective arbitrariness’ or
‘authority of position’ (1993a: 295).

5 For an early formulation of this view, see Narr (1969: 179–80). See also Narr’s use

of Karl Löwith’s 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 Münstermann

(1969). Münstermann even saw ‘a recourse to Carl Schmitt’s concrete-order thinking’
in Luhmann’s positivist/neutral account of legitimacy (1969: 330). Johannes Weisz
also asserted a similarity between Schmitt and Luhmann. But he was careful to
distinguish clearly between Schmitt’s anti-parliamentary attitude and Luhmann’s
procedural or fictionalist account of legitimacy (1977: 82).

7 In his earlier work, Luhmann opted for a proceduralist model of legitimacy which

construed 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 to
accepting decisions as legitimate (1983: 247). In his later works, then, he argued
that legitimacy in the political system is simply the self-reference or the plausible
self-description of the political system, and that the changing institutional forms of
governments claiming legitimacy reflect the evolving displacement of the paradoxi-
cal contingency of power’s exercise into plausible semantics or self-descriptions (2000:
319–71).

8 On this, see the integration of Luhmann’s functionalism, and the simultaneous

critique of its apparent decisionistic or elite-democratic elements, in the neo-Marxist
theories of legitimacy set out by Habermas and Claus Offe. In his earlier works,
Habermas implicitly saw Luhmann’s theory as a technique for decoupling ‘the
administrative system’ from the ‘legitimatory system’, and for concentrating the
political system on the ‘objectives of ideological planning’ (1973: 98–9). In his
classically controversial essay on Luhmann’s 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 an
‘extremely reduced concept of democracy’, which restricts the functions of democracy
to the ‘execution of prescribed purposes and routinous programmes’, and as a result
of which ‘membership participation is limited to the periodic election of leadership
groups’ (1968: 505). For a wider analysis of the relation between technocracy and
neo-conservatism, which implicitly places Luhmann in the peripheries of conserva-
tive theory, see Saage (1983: 235).

9 On early accounts of the relation between Luhmann’s sociology and Gehlen’s func-

tionalist theory of complexity reduction as institutional ‘alleviation’ (Entlastung), see
Maciejewski (1972: 153) and Schmid (1970: 208). For later important commentary
on this, see Beyme (1991a: 17–18). For Schmitt’s general impact on technocratic
thought, see Müller (2003: 80–2).

10 Habermas also clearly associated Luhmann with Schmitt. For this point, see the

rather 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’ were
merely dramatized elements of the political system’s 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 understanding
of politics’ would be more appropriate to the state’s capacities, were surely not far
removed 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 Luhmann’s
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 economic
groups’ (1931: 159).

13 Representation, as is well documented, is a key concept in Schmitt’s theory. Repre-

sentation, he argued, consolidates government around enduring political ethics, and
it allows all society to project and be unified around certain positive principles, stabi-
lized in the state. States founding themselves in representative principles obtain
legitimacy through the metaphysical representation of ‘something existential’ or of
‘an invisible Being’, which is higher than the state itself, and which is reflected in the
institutional 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 complexity
there ‘no longer exists a representation of society in society’ (1984b: 42).

14 Luhmann eventually responded to accusations that his legal positivization was a

covert brand of decisionism by implying that the decisions in law and politics form
a reservoir or memory which invariably conditions further decisions, so that no
decisions 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 spontaneously
‘produce and reproduce’ the decisions ‘of which it consists’, and that its legitimacy
depends 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 Schmitt’s conception of totality. In the early

1920s he argued that the political is always ‘total’ and that the decision about what
is political is always also total (1922: 7). Later, he was careful to differentiate the
total state, as a fully representative and decisive executive, from the total state as a
socially interventionist party state, exemplified by the NSDAP. At one point, for
instance, he denounced the ‘total parties’ or the ‘activist parties’ seeking to ‘dominate
the state’ in late-Weimar politics, but he defended the other total state: that is, the
state capable of representing a total and pervasive ethic of state, above the particu-
lar elements of civil society (1958: 362–3).

19 On the decision as the structural paradigm of contingent modernity, see Greven

(1999: 14).

20 Schmitt’s view on the substantial foundation of legitimacy changed markedly over

the different phases of his career. For his claim that national unity is a precondition
of 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 of
politics (1973: 8).

22 Schmitt’s functionalist tendency is usually seen to be a product of his occasional

theoretical closeness to Hans Freyer. Freyer argued that modern political systems are
inevitably structured around bureaucratic decisions or plans, and the legitimacy of
these decisions is not founded in any anthropological facts of human reason, character
or interest (1933: 22).

23 Hence Luhmann’s 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 ‘individual
problems’ of political regulation must be transported from ‘the legislature into the
executive’, so that the administrative functions of the executive can acquire autonomy
and latitude in processing these problems (1966b: 294).

25 For the classic formulation of this claim, see Schelsky (1965). Schelsky argued here

that democracy as government by consensus and common ‘normative will-formation’
has been supplanted by government as technocratic reaction to objective exigency
(1965: 455–6).

26 Recently, both in Germany and elsewhere, Luhmann’s social theory has experienced

what might be termed a second generation of interpretive reception. The major works
in this reception have, though far less critically than the first generation, once more
compared his sociology with Schmitt’s work. This line of interpretation, exemplified
by William Rasch, has assessed Luhmann’s work, surely accurately, as a pluralistic
doctrine of societal de-centration, which dismisses the Schmittian claim that there
exists a sovereign politics in society, able to generate rational insights or decisions for
all spheres of societal exchange (2004: 44). However, rather than seeing Luhmann
as diametrically opposed to Schmitt, Rasch argues that they overlapped, first, in the
fact that both ascribed a distinctive autonomy to politics among other communi-
cations, and, second, in the fact that both insisted that politics must preserve a
‘structure of difference’ (either between politics and other social systems, or between
one sovereign polity and another) in order for it to produce its legitimacy. In this
second wave of reception, therefore, Luhmann and Schmitt are interpreted as

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convergent theorists of radical difference, contingency and conflict, both of whom
recognize that human history and society are not driven by a unitary dynamic of
progress or reconciliation, but are irreducibly pluralistic and shaped by ‘multiple
battles for autonomy’ (2004: 45–6). 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 saw
the autonomy of the political system as founded in its primacy over all over social
exchange, whereas Luhman viewed the autonomy of the political as founded in its
equality with other systems. For a generally excellent alternative recent account of
Luhmann’s political theory, and for discriminating reflections on its relation to
Schmitt’s decisionism, see Lange (2003: 146). For further recent comparisons of
Luhmann and Schmitt, see Nassehi (2002: 45) and Stäheli (2002: 255).

27 Luhmann saw the ‘traces of 1968’ as primarily evident in an annoying increase in the

‘stubbornness 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 Luhmann’s work

from the beginning to the end of his theoretical life. Even his posthumous works
fulminate 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 Kelsen’s 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 law’s inalienable precondition. These
accounts are not appropriate to analyzing state forms under the conditions of social
plurality and intense material antagonism which define modern societies (1923: 45).

33 One key aspect of Schmitt’s theory is the belief that liberal governments assume that

neutrality and pacification are the natural condition of human coexistence. On
Schmitt’s 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 Schmitt’s

technique of concept-formation is Seitzer (2001: 26). A recent helpful view on this
is also provided by Stirk (2005: 9).

35 Hence his assertion that only ‘plebiscitary legitimacy’ is able to hold all disparate

sectors of a modern democracy together (1932b: 87).

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■

Chris Thornhill

is Professor of European Political Thought at the University of

Glasgow. He is the author of a number of books and articles on political theory
and political sociology, socio-legal theory, and the history of political thought.
His most recent book is German Political Philosophy. The Metaphysics of Law
(Routledge, 2006). Address: Department of Politics, Adam Smith Building, 40 Bute
Gardens, University of Glasgow, Glasgow, G12 8RT, UK. [email: c.thornhill@socsci.
gla.ac.uk]

■

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