Legal indeterminacy and authoritarianism: Notes on William Scheuerman’s The End of Law

Abstract

Scheuerman’s book is one of the handful of significant attempts to rethink Schmitt’s work systematically over the past four decades. In so doing, he raises three key questions for me. First, is Schmitt’s work a sincere contribution to legal and political theory, or an attempt to argue for setting the rule of law aside for authoritarianism, that is, an instrumental critique of indeterminacy? Second, to what extent is Schmitt – critical of the ‘bourgeois’ rule of law, critical of globalization – really a thinker defending capitalism? Can he really be associated with the Ordoliberals (even if they adopted his arguments from 1931 to 1932 in their own writing of the time)? Third, to what extent were Schmitt’s early contributions to National Socialist law aimed at responding to legal indeterminacy, and to what extent did they in fact point towards a radicalism of German law within the Nazi system, especially insofar as they endorsed making decisions based on the principles of justice of the Nazi state – and potentially against the express language of statutes?