Critical Legal Theory’s Turn to Schmitt: Not Waving but Drowning?

摘要

I examine the current enthusiasm among some academics, whom I shall broadly refer to as critical legal theorists (CLT), for the work of Carl Schmitt which has at times been accompanied by disenchantment with Emmanuel Levinas’s ethical insights. I examine the reasons for this turn to Schmitt which I attribute to the sensitivity of CL theorists to the complaint that an over-reliance on Levinas leads to a disengaged and irrelevant discourse. I contrast their antithetical approaches through their conceptions of the Other (which in Schmitt’s case is developed through his friend and enemy distinction) and explain how, together with state of exception theory; it has appeared to some CL theorists to offer a platform for exposing the liberal democratic attempt to export human rights as a violent imperialising mission. I argue that Schmitt’s thinking represents an intellectual cul-de-sac and that Levinas continues to offer a more rewarding model of critique.