Throughout the Weimar period, Schmitt was on principle a critic of liberal jurisprudence.

Indeed,
his recourse here to elements of the liberal rule of law is purely strategic. At many junctures in
the 1926 study, it indeed becomes clear that Schmitt merely means to suggest that as long as
the Weimar constitutional system is committed to legal liberalism, it must endorse a traditional
model of the rule of law and, by necessity, conflict with the left's attempt to undertake individual
legal measures against royal property.5 By no means should we read Schmitt's employment of
traditional strands of liberal legalism as an expression of a genuine sympathy for the liberal rule
of law. As was shown in part 1, Schmitt deconstructed that ideal well before publication of his
1926 pamphlet. Schmitt in 1926 merely speaks as a constitutional lawyer intent on informing his
countrymen that if they aspire to take the liberal features of the Weimar Constitution seriously,
they necessarily must oppose left-wing legal acts as inconsistent with the idea of general law ...
Schmitt cleverly transforms the traditional ideals of liberal legalism into a weapon against
Germany's first attempt to secure a stable liberal democracy. In chapter 3, I note that Schmitt
occasionally relies on traditionalist legal liberal ideals in order to subvert legal liberalism. This is
precisely the strategy taken here in his reflections on the rule of law and the welfare state.

Any form of particular or specialised act of social regulation, expropriation or redistribution - the
case galvanising Schmitt's intervention was an effort by socialist and communist legislators to
expropriate the property of the overthrown Kaiser - is, claims Schmitt, in principle a violent and
revolutionary act that is incompatible with legal liberalism. Specifically, the 'generality of the law'
means that its principles must apply equally to all - any act of regulation or redistribution that
targets one class or social group to the benefit of another is contrary to this generality. Suffice to
note that this relies on an obscurantist reading of liberalism, but it gave Schmitt the tools with
which to oppose the democratic welfare state.
As we discused in chapter 4, Schmitt argues that powerful organized interest groups colonize
the Weimar governmental apparatus to such an extent that the German regime is no longer
capable of standing above and beyond antagonistic, organized political and social
constituencies and resolving conflicts among them. In Schmitt's at times downright apocalyptic
account, the emerging welfare state entangles government in a multitude of social and
economic spheres. But this entanglement simply results in a crippling of the state's autonomous
decision-making capacities; the welfare state no longer allows government to serve as an
effective arbitrator among competing interest groups. The "pluralist party state" fails to
"distinguish between friend and foe."10 The emergence of the democratic interventionist state
threatens to plunge contemporary politics into a potentially explosive political crisis in which an
''ethics of civil war" may be needed to guide political action. The integrity and coherence of the
governmental decision-making apparatus are undermined so drastically that constitutionalism in
the modern welfare state increasingly amounts to little but an attempt to reach a fragile "peace
treaty" among hostile agglomerations of social and political power.11

This is a high octane, radical rightist version of the critique of welfarism that 'public choice'
economists would later develop. They essentially maintained that the welfare state entangled
the government in various "special interests", undermining its capacity to act as an independent
arbiter and efficient administrator. The best state was a minimal state, and one organised on the
model of the market.
Although Schmitt repeatedly blames social democrats and their jurist friends for having brought
Germany to the brink of political collapse, his Judicial Independence, Equality Before the Law,
and the Protection of Private Property According to the Weimar Constitution still leaves open
the possibility that the abandonment of liberal general law may be justified amid a serious
political crisis. Even in 1926, Schmitt conceded that a crisis could require an emergency
dictatorship ready to abandon so-called normativistic liberal law in favor of individual measures
and commands.14 In the face of the left's attempt to construct the democratic welfare state as
we have seen, for Schmitt this trend constitutes an implicit revolutionary threat just such an
emergency regime is what Schmitt now proposes. With the emergence of executive-based
quasi-authoritarian regimes (under Heinrich Brning and then Franz von Papen) in Germany in
1930,15 Schmitt outlines a disturbing defense of a plebiscitary dictatorial system guided by
precisely those individual measures and commands whose dangers he had seemed to warn his
German readers about just a few years earlier. By means of an idiosyncratic reworking of the
classical liberal democratic aspiration to distinguish general (parliamentary) laws from individual
(executive) decrees, Schmitt provides a justification for a discretionary emergency dictatorship,
in his view absolutely necessary if the inept, inefficient and politically perilous "pluralist party
state" is to be replaced by a system superior to it. As Peter Gowan has similarly noted, Schmitt
hoped to jettison the democratic Weimar welfare state for an authoritarian alternative, a new
type of interventionist state that would succeed in divesting itself of burdensome "welfare
obligations, [and] commitments to protecting [the] social rights" of subordinate social
constituencies. 16 According to Schmitt, the "quantitative total state" a weak, social-democratic
inspired interventionist state should be replaced by a ''qualitative total state" an alternative
brand of interventionism, but one that guarantees authentic state sovereignty while
simultaneously managing to provide substantial autonomy to owners of private capital.17

Second, one needs to ask whether Hayek's model deserves to be considered compatible with
the basic ideals of modern liberal democracy. Liberal democracy has taken relatively distinct
institutional forms in modern history. This fact should suggest that liberal democratic ideals are
compatible with a rich diversity of institutional mechanisms. Could Hayek's proposals here pass
some hypothetical test or standard that we might come up with for determining whether a
particular set of institutions can still be deemed liberal democratic? To be sure, his model would
result in a vast reduction in existing possibilities for democratic participation, and a sizable
number even of the rather apathetic citizens found in contemporary liberal democracy would
probably see them as constituting a substantial rollback of some of their most basic democratic
rights. If we were to answer this question in the negative, it might further suggest that Hayek's
reliance on Schmitt has proven rather costly. For then we could interpret Hayek's argument as
an implicit concession to Schmitt's view that the "pluralist party state" ultimately can be
transformed effectively only by authoritarian means. As noted above, Schmitt openly endorsed
aspirations to free the interventionist state from social policy-based obligations to subordinate
social groups, and he advocated a new form of interventionist politics, but one allegedly distinct
from its Weimar predecessor in part because of its guarantees of autonomy to the owners of
private capital.

If the neoliberal project is a restorationist one that consolidates the power of capital with respect
to its opponents, it has accomplished this substantially by "hollowing out" the state, by depriving
it of democratic and representative capacity, by treating governmentality as a technocratic
issue, the efficacy of which can best be measured by its resemblance to market transactions in
the private sector. The new rightist radicals, and their assault on the 'special interests' and 'old
elites', amounted to an outright attack on democracy. It is to the success of this project above all
that we must credit our current democratic impasse, the imperviousness of the state to
pressures from below, and the growing disengagement of significant layers of the population
from electoral politics.

Well, anyway, if this sort of stuff interests you, I'd like to talk about it with you at 7pm tonight at
Housmans' bookshop, where I'm launching The Meaning of David Cameron. A combative
discussion of our new Lib-Con masters, their spending cuts and downsizing, their claim to
"progressive" politics, and their attempted simulation of democratic enfranchisement, is urgently
required.