Carl Schmitt as a Subject and Object of International Criminal Law: Ethical Judgment in Extremis

Abstract

Since the Nuremberg trials in the ‘Justice case’ (United States v. Josef Alstötter, et al.) lawyers utilising the emptied forms of legal process to commit international crimes have been legally punishable. This self-reflexive approach to law by law distinguishes legal and illegal – ‘real’ law and ‘simulated’ law. Why then was the ‘Nazi crown jurist’ Carl Schmitt not prosecuted? Aspects of his work expressed avowedly anti-Semitic sentiments while some of his intellectual concepts could be deployed to support National Socialist territorial expansion or Lebensraum. This illustrates the difficulties of judging ethical behaviour in extreme situations where definitions of the legal/illegal are themselves disputed. Schmitt’s life and work (the two are inseparable as his lifework) cross both legal and prescriptive ethics and are consequently more of a meta-ethical dilemma. The law resolves this meta-ethical dilemma through introducing a split in the legal subject between the office they hold and their person.