If, at the time of Carl Schmitt’s death in 1985, one had by some unknown premonition declared that the enfant terrible of twentieth-century German Staatsrechtslehre would soon become a major source of inspiration for twenty-first-century Chinese neo-conservatives’ theorisation of China’s party-state…well, then most people would have dismissed this prediction out of hand as a plainly ludicrous thought. Yet, strangely (and perhaps disconcertingly), this is precisely the role that was assigned to the erstwhile “crown jurist” of the Reich in the past two decades. That the “wisdom of this dead Nazi”, as Martti Koskenniemi put it unforgivingly, now serves as a conceptual (and, for some, quasi-metaphysical) guidance in the interpretation of China’s constitutional order is no longer a secret, as attested by a growing body of research.
Lucas Brang’s new paper (free draft here) taps into this ongoing debate about Schmitt’s unexpected reemergence to global intellectual prominence. Shifting between intellectual history, conceptual analysis, and constitutional theory, Brang traces Schmitt’s influence on Chinese liberal, left-leaning, and neo-conservative legal theorists. Rather than postulating a straightforward bearing on Chinese theoretical debates, however, his article finds that Schmitt’s persona functions as a kind of Jungian shadow projection – intellectual nemesis for concerned liberals, spiritus rector for neo-authoritarians – and hence leads to a variety of ideological performances of mutual suspicion. Likewise, Schmitt’s oeuvre, rather than being studied or adopted in its entirety, serves as a conceptual toolbox that lends itself to different normative projects.
Focusing in particular on Schmitt’s impact of the school of “political constitutionalism”, Brang shows how different authors employ different “strategies of reception” to make sense of Schmitt’s anti-liberal “challenge” and use of his terminological arsenal. For instance, Chen Duanhong draws on Schmitt’s constitutional theory for a “decisionist” and “existentialist” reading of the preamble of the Chinese constitution, thus providing a theoretically sophisticated view of party-leadership as China’s “fundamental law” and core constitutional value. Jiang Shigong, on the other hand, seems to adopt the Schmittian approach of “thinking in concrete orders” in his sociological account of China’s “unwritten constitution”. Gao Quanxi, finally, in a throwback to Ernst-Wolfgang Böckenförde’s post-war inquiry into the political preconditions of a liberal polity, attempts what Brang describes as a “conceptual inversion” of the Schmittian paradigm of the exception.
On the whole, the paper suggests that the history of Chinese political constitutionalism and the Chinese reception of Carl Schmitt is essentially one of an intellectual co-evolution – which serves as a stark reminder of the often-unexpected paths of contemporary legal globalisation.