{"id":29758,"date":"2026-09-25T16:22:41","date_gmt":"2026-09-25T14:22:41","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=29758"},"modified":"2026-09-25T16:25:42","modified_gmt":"2026-09-25T14:25:42","slug":"59-hans-kelsen-and-carl-schmitt-friend-and-enemy","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/59-hans-kelsen-and-carl-schmitt-friend-and-enemy\/","title":{"rendered":"#59 Hans Kelsen and Carl Schmitt: Friend and Enemy"},"content":{"rendered":"<p><iframe loading=\"lazy\" style=\"border-radius: 12px;\" src=\"https:\/\/open.spotify.com\/embed\/episode\/7MEZ0CBhLJ1gM6qwNePdXv?utm_source=generator&amp;t=0&amp;si=3bed1b852cb84b69\" width=\"100%\" height=\"152\" frameborder=\"0\" allowfullscreen=\"allowfullscreen\" data-testid=\"embed-iframe\"><\/iframe><\/p>\n<p><span lang=\"en-GB\">This is the second episode of the cooperation between the <\/span><span lang=\"en-GB\">V\u00f6lkerrechtspodcast<\/span><span lang=\"en-GB\"> and the <\/span><a href=\"https:\/\/www.malnachdenrechtenschauen.de\/\"><span lang=\"en-GB\">Mal nach den Rechten schauen<\/span><\/a><span lang=\"en-GB\"> podcast, in which we examine the continuities of National Socialism in public international law. This special episode was recorded in English.<\/span><\/p>\n<p><span lang=\"en-GB\">This episode focuses on two of the most influential, yet strikingly different, figures in 20th-century public international law: Carl Schmitt and Hans Kelsen. The two held fundamentally different views on (international) law and, personally, could hardly have been more different. Kelsen and Schmitt are also the protagonists of a chapter in Scott Shapiro and Oona Hathaway\u2019s book <\/span><span lang=\"en-GB\">The Internationalists<\/span><span lang=\"en-GB\">. For this episode, we interviewed Scott Shapiro about Hans Kelsen and Carl Schmitt, their rivalry, and their continuing legacy.<\/span><\/p>\n<p>Please find our first collaboration episode here (in German): <a class=\"e-10811-text-link e-10811-overflow-wrap-anywhere encore-internal-color-text-announcement e-10811-text-link--use-focus sc-eLPDLy kxsQcc\" href=\"https:\/\/voelkerrechtsblog.org\/voelkerrecht-und-nationalsozialismus-teil-i\/\" data-encore-id=\"textLink\" data-slate-node=\"element\" data-slate-inline=\"true\" data-slate-fragment=\"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\"><span data-slate-node=\"text\"><span class=\"sc-jgnaoi LKsIa\" data-slate-leaf=\"true\">Folge 29, V\u00f6lkerrecht und Nationalsozialismus (Teil I)<\/span><\/span><span contenteditable=\"false\">\u2060<\/span><\/a><\/p>\n<p>Interview: <a href=\"https:\/\/law.yale.edu\/scott-j-shapiro\" data-encore-id=\"textLink\" data-slate-node=\"element\" data-slate-inline=\"true\">Prof. Scott J. Shapiro<\/a>, <span lang=\"fr-FR\">Elisa Costadura, Viktoria Moissiadis<br \/>\n<\/span><span lang=\"fr-FR\">Moderation: Elisa Costadura, Manuel Klein, Rouven Diekjobst, Viktoria Moissiadis<br \/>\n<\/span>Cut: Daniela Rau<\/p>\n<p>Further Readings:<\/p>\n<ul>\n<li>Scott J. Shapiro\/Oona A. Hathaway, The Internationalist: How a Radical Plan to Outlaw War Remade the World, 2017.<\/li>\n<li>Hans Kelsen Memorial Lecture by Scott Shapiro at the Institute for International Peace and Security Law at Universit\u00e4t zu K\u00f6ln: <a href=\"https:\/\/www.youtube.com\/watch?v=W-xsFsGDGMs&amp;t=517s\">https:\/\/www.youtube.com\/watch?v=W-xsFsGDGMs&amp;t=517s<\/a><\/li>\n<li>Claus Kre\u00df, \u201eHans Kelsen, Hermann Jahrrei\u00df, Carl Schmitt und die Frage von Krieg und Frieden im V\u00f6lkerrecht\u201c, in: 100 Jahre Rechtswissenschaftliche Fakult\u00e4t der Universit\u00e4t zu K\u00f6ln, Hanns Pr\u00fctting, K\u00f6ln 2021, S. 79-106, welcher auch auf die Persona von Hermann Jahrrei\u00df und dessen Vergangenheit an der Universit\u00e4t zu K\u00f6ln und seine Rolle als Verteidiger Deutschlands vor dem N\u00fcrnberger IMT eingeht. Dazu siehe auch: Annette Weinke, \u201eHermann Jahrrei\u00df (1894-1992) \u2013 Vom Exponenten des v\u00f6lkerrechtlichen Kriegseinsatzes zum Verteidiger der deutschen Eliten in N\u00fcrnberg, in: K\u00f6lner Juristen im 20. Jahrhundert, Steffen Augsberg\/Andreas Funke, S.\u00a0163-195.<\/li>\n<li>Carl Schmitt, Tageb\u00fccher 1930 bis 1934, hrsg. v. Wolfgang Schuller in Zusammenarb. mit Gerd Giesler, Berlin 2010.<\/li>\n<li>Siehe zu Carl Schmitts Tageb\u00fcchern auch die digitale Edition hrsg. v. Philip Manor\/Florian Meinel\/Angela Reinthal: <a href=\"https:\/\/carlschmitt.bio\/\">https:\/\/carlschmitt.bio<\/a>.<\/li>\n<li>Joseph Weiler, Cancelling Carl Schmitt?: <a href=\"https:\/\/www.ejiltalk.org\/cancelling-carl-schmitt\/\">https:\/\/www.ejiltalk.org\/cancelling-carl-schmitt\/<\/a>.<\/li>\n<\/ul>\n<p>&nbsp;<\/p>\n<p><em><strong>We would like to make our podcast accessible to more people, so we are experimenting with automatic transcription (see below). Please note that we cannot guarantee the accuracy of the automatically generated transcript.<\/strong><\/em><\/p>\n<p><em><strong>We would be happy to hear from you at <a href=\"mailto:podcast@voelkerrechtsblog.org\">podcast@voelkerrechtsblog.org<\/a> about which format would make the transcript most useful to you and how it could be presented in the most accessible way &#8211; for example, as text within the blog post, as shown here, or as a linked document. Which file format would you prefer? Thank you!<\/strong><\/em><\/p>\n<p>&nbsp;<\/p>\n<p>[0:00] The fact that they end up 18 years later on opposite sides, and, it&#8217;s Kelsen that gets a professorship afterwards at the University of California, Berkeley, and Schmidt loses his job at the University of Berlin and becomes basically an outcast, there&#8217;s a kind of karmic satisfaction for me there.<\/p>\n<p>[0:31] Hello everyone to a very special collaboration episode of the podcast Mal nach den Rechten schauen, the podcast about continuities of national socialism in German law, and the V\u00f6lkerrechtspodcast, the podcast about theory and practice of international law. I&#8217;m Manuel, and I&#8217;m here with Elisa and Viktoria of the MNDRS podcast, as well as Rouven, who is, like me, a member of the V\u00f6lkerrechtspodcast team. As some of you listeners might know, this is part two of a collaboration that, has been aired three years ago for the first time. This first part was about the relationship of National Socialism and International Law and kind of its continuities as well. And not unlike Rome, which wasn&#8217;t built in one day, so wasn&#8217;t this second episode. But we&#8217;re very happy that we can present you this part two today. As you&#8217;ve heard at the beginning, today we&#8217;re going to talk about Hans Kelsen and Carl Schmitt. Viktoria, why did we choose these two protagonists today?<\/p>\n<p>[1:49] Hello, Manuel. We chose them partly for the personal dimension they bring to the story of National Socialist continuities in international law, but also because, of course, both were important figures in international law and played a crucial role in the development throughout the 20th century. For example, debates surrounding the outlawry of war and the prohibition of the use of force. And in their book, The Internationalist, written by Scott Shapiro and Una Hathaway, they explore the opposing views held by Carl Schmitt and Hans Kelsen, showing how their personal rivalry mirrored the deeper theoretical divide between their conceptions of international law. And we are huge fans of the book and asked Scott Shapiro for an interview.<\/p>\n<p>[2:39] And indeed, Kelsen and Schmidt&#8217;s personal relationship reaches its peak around the time Kelsen arrives in Cologne in 1930, doesn&#8217;t it?<\/p>\n<p>[2:49] Yes, that&#8217;s true. And actually, Scott Shapiro, who held the first Hans Kielsen Memorial Lecture organized by Professor Kress at the University of Cologne in 2016, tells a story about that. In 1932, Carl Schmitt applied for a professorship at the University of Cologne, and Hans Kielsen, who at that time was the dean of the law faculty, supported his application, despite all the differences. Only two years later, shortly after the Nazis took power, Karl Schmitt was the only member of the law faculty, who did not sign a petition against the dismissal of Hans Kelsen as Jewish professor, following the orders of the National Socialist Education Ministry.<\/p>\n<p>[3:45] And this dislike between Carl Schmitt and Kelsen that you talked about, there are also diary entries of Carl Schmitt that really support this view that Schmitt held against Kelsen, aren&#8217;t there?<\/p>\n<p>[4:01] Yes, Carl Schmitt kept diaries throughout his entire life, which were later also published. And it&#8217;s truly fascinating to see how often he writes about Hans Kelsen in them, and how strong the aversion was that he felt towards him. There&#8217;s a good example from 1931. On that example, apparently Hans Kelsen published an essay and on that day, Carl Schmitt writes in his diary that he feels a fear of being defeated by Kelsen&#8217;s essay. And the next day, he writes that he still feels disgust over Kelsen&#8217;s essay, and only later he writes that the Kelsen nightmare is completely over. That&#8217;s a good example to show that for Carl Schmitt, Hans Kelsen was truly his enemy. It also shows that he was an anti-Semit and that he had a personal obsession with Hans Kelsen. If you want to check out the diary entries of Carl Schmitt, you can look into, our show notes. We have a link there for you.<\/p>\n<p>[5:10] That&#8217;s really quite fascinating, but for a moment, let&#8217;s take a step back. Who is Hans Kelsen anyway? What is his journey before becoming a professor at the University of Cologne? And Carl Schmitt? He&#8217;ll in turn end up at the University of Cologne as well, won&#8217;t he? What does his journey to Cologne look like? And how do both their biographies, already reflect their different approaches to international law?<\/p>\n<p>[5:41] That&#8217;s right, Manuel. Kelsen grew up mainly in Vienna, where he also studied law and later became a professor, working primarily on constitutional law and legal philosophy. And from the beginning of his academic career, you can see that he was particularly interested in the state. He published works on sociological and legal conceptions of the state, on sovereignty and on unlawful state action, for example. That means that he was also just in the right place at the right time when the constitution of the new Austrian Republic was drafted in 1919 and 1920. There, Kelsen acted as an expert in the drafting process and was one of the major architects of the new constitutional order. In particular, he was instrumental in designing the new Austrian Constitutional Court, which was also empowered to exercise centralized judicial review of legislation, which meant in Kelsen&#8217;s view that the court could act as a so-called negative legislator by repealing statutes that were unconstitutional.<\/p>\n<p>[6:53] That should be particularly interesting for our listeners from Germany, who will surely have noted the similarity between Kelsen&#8217;s constitutional court and the German federal constitutional court that we have now. Subsequently, Kelsen himself also served as one of the first judges on the Austrian constitutional court. That means that when Kelsen was appointed as a professor at the University of Cologne in 1930, he came primarily as an expert in constitutional law, although it was around this time that he also began to publish more extensively, on public international law. The early 1930s and his time in Cologne in general would prove to be really highly consequential years for Kelsen. It was there that he further developed ideas that would culminate into one of his most well-known works, The Pure Theory of Law, a decidedly positivist theory of law, which we&#8217;ll also hear more about later. And it was also there in Cologne that he met Carl Schmitt, who would play a role in Kelsen&#8217;s forced departure from the university in 1933, shortly after the National Socialist Party had come to power in Germany.<\/p>\n<p>[8:10] Schmitt, who had also joined the National Socialist Party in 1933, had been appointed as a professor of constitutional law in Cologne only months earlier, with Kelsen himself involved in the appointment, as we heard. By then, Schmidt was already a well-known constitutional law scholar, and he really was in many respects positioned on the opposite side from Kelsen on almost every major question of constitutional law, particularly on the question whether judges could be entrusted with the task of safeguarding the constitution, but also on legal positivism and increasingly also on international law.<\/p>\n<p>[8:52] At that time, a particularly debated question in international law was the emerging prohibition on the use of force. The Kellogg-Briand Pact, the first general international treaty for the renunciation of war, had been signed in 1928, so only a couple of years earlier, and was at that time quickly gaining traction. While Schmidt rejected the idea of transforming international law into a system that would prohibit states from resorting to war, Kelsen really embraced the emerging prohibition on the use of wars and, in general, the idea of subjecting relations between states to a genuine legal order. This position would also become really central to his later work on international law and the United Nations in particular.<\/p>\n<p>[9:47] Already two super interesting biographies, and now let&#8217;s hear from Scott how he sees the relationship between Kelsen and Schmidt.<\/p>\n<p>[9:57] Good, so let&#8217;s start. I&#8217;m really excited. Okay, so I have listened to your speech at the inaugural Hans Kelsen Memorial Lecture that Professor Kress started at the University of Cologne in honor of the former scholar of this university in 2016. And in this memorial lecture, you called Hans Kielsen not only a great legal philosopher and international lawyer, but also a great man. And even more, you called him one of your heroes. So what do you admire most about him?<\/p>\n<p>[10:35] Well, I mean, he was a man. First of all, of course, he was brilliant. And he was prolific. And he was a man of great moral seriousness. But he also lived according to his ideals and was punished severely for that. And ultimately, there are Hans Kelsen Memorial Lectures, not Carl Schmitt Memorial Lectures, And so it&#8217;s at least gratifying to see at least the world recognizing his integrity and greatness.<\/p>\n<p>[11:28] A hero often has to face its antagonist. In the case of Hans Kelsen, that would be Carl Schmid. They are also the protagonist of a chapter in your book, The Internationalist, and the chapter is called Friend and Enemy. Could you explain to us why you chose this title?<\/p>\n<p>[11:45] There&#8217;s a sense in which both Carl Schmitt and Hans Kelsen were truly enemies, or I should say the following thing is that, Carl Schmitt took Hans Kelsen to be his enemy, somebody who he would, I don&#8217;t know, would say would kill, but, for whom he would, impose really costly measures upon. Whereas Hans Kelsen did not recognize that.<\/p>\n<p>[12:20] One of the stories that I tell in that chapter is that Kelsen is the dean of the University of Cologne and Schmidt applies to be a law professor and Kelsen makes the argument for him, even though he has been warned that Carl Schmidt is, a difficult character And of course, they&#8217;re on completely different sides of the philosophical and political divide. And yet, he invites Schmitt onto the faculty, he negotiates salary with him, he writes him a congratulation letter, and then when the Nazis come to power, Schmitt turns around and gets Kelsen fired. And there&#8217;s a way in which, and we could talk about this, this kind of goes in some sense to the fundamental critique that Carl Schmitt has of liberalism, which is that liberals just don&#8217;t understand, they don&#8217;t get it, that ultimately there&#8217;s going to be the distinction, the need to distinguish between friend and enemy, and because they don&#8217;t do it, they end up in tragic situations where.<\/p>\n<p>[13:33] But Friend and Enemy is not only the title of the chapter about the two of them, but also one of the most essential theoretical foundations of Carl Schmitt. Could you also say something about that?<\/p>\n<p>[13:47] Yeah, so one of the core ideas, probably the core idea behind Carl Schmitt&#8217;s entire body of work, which, I hate the fact that I think that Carl Schmitt is brilliant too. And it&#8217;s one of the sad, it&#8217;s one of the aspects of the world and intellectual life that you often learn from people who are terribly flawed, morally speaking. But I have learned an enormous amount from Carl Schmitt. But his idea is this idea of friend and enemy. So very, very, very quickly, the idea is that politics is defined not by its subject matter, but by the intensity of the disputes that take place. And that ultimately the most intense dispute is between those who want to kill each other, and it is the role of the state to determine who is the friend and who is the enemy who are the people that will defend each other and who are the people who are the people that are potentially killable.<\/p>\n<p>[15:07] The idea of the state is that, it determines this group, the friends, protect each other, but are required to kill another group known as the enemy. And why that&#8217;s the case will depend on different societies, what they think is worth killing over, whether it be identity, whether it be moral principles, whether it be some kind of impacted historical grievances. But ultimately, the state is there to make that choice between friend and enemy.<\/p>\n<p>[15:55] Okay, so besides the personal rivalry between the two, they both also had opposing view on international law. Could you maybe explain us their opposing views on the prohibition of the use of force?<\/p>\n<p>[16:10] Yeah, so, I often think of Kelsen and Schmidt, as being like the reciprocal of each other or the mirror image of each other. There&#8217;s like in some sense, there&#8217;s a kind of philosophical distinction between the two that like is even at a higher level than international law. And I would just basically say, I think for Kelson, he thought that, you know, it was norms all the way down or all the way up, depending on how you want it to imagine the direction. I guess it&#8217;s all the way down because he talks about the Grund norm. But the idea is that for Kelsen, we can only make sense of things like law if we understand it through the lens of norms. And that&#8217;s why he posits necessarily at the foundation of every legal system this Grund norm, this kind of foundational norm, which validates everything that goes, so to speak, above it.<\/p>\n<p>[17:24] Briefly on the Grundnorm. The Grundnorm is one of the foundational concepts in the work of Hans Kelsen. In his Pure Theory of Law, Kelsen develops a theory of law according to which law can be understood as a hierarchical system of norms. In this system, any given rule of law is valid, not because it is in accordance with morality or any other outside influence, but because its validity is derived from a higher legal norm. In this sense, this theory is pure. It&#8217;s completely detached from outside legal influences.<\/p>\n<p>[18:06] According to this theory, then ordinary statutes are valid, for example, because they are enacted in accordance with the constitution. So with a legal norm that is on a higher hierarchical level. This hierarchy of norms can thus explain the validity of lower-level norms by reference to higher-level norms, but it eventually runs into a problem when we reach the highest level. Why is the constitution itself valid? Kelsen sought to solve this problem of Letzbegr\u00fcndung or ultimate grounding, through the concept of the so-called Grundnorm, the basic norm. This Grundnorm is the ultimate presupposition on which the validity of the legal system itself rests. Rather than being a positive legal rule that we can find somewhere in the legal system, it is a norm that has to be imagined, presupposed, in order to explain the validity of the constitution and thus ultimately of the legal order as a whole. So in a sense, this Grundnorm is ultimately an assumption, that&#8217;s not to say a theoretical trick that allows Kelsen&#8217;s hierarchy of norms to work.<\/p>\n<p>[19:25] Whereas for Schmidt, it&#8217;s really the opposite. It&#8217;s that there&#8217;s no way in which norms can, it can&#8217;t be norms all the way down because every norm has kind of an implicit, or in some cases explicit exception for exceptions. That is for exceptional cases where ultimately you want to say the norm doesn&#8217;t really cover this very unusual case. And even if you had a norm that covered that unusual case, there would be an exception to that norm. And so that&#8217;s why he&#8217;s often known, I mean, he called it decisionism, that is ultimately law is based on the fact that somebody, and he called them the sovereign, decides on the exception. Now, making reference to international law and the role that war plays.<\/p>\n<p>[20:30] What I find fascinating about Schmidt, is that he writes the concept of the political where he lays out the friend-enemy distinction right after, he&#8217;s sitting in a lecture given by James Shotwell, who is advocating for, a general treaty for the renunciation of war and gives a lecture about this and Schmitz in the audience and Schmitz really upset, goes home and basically writes up the concept of the political in response to hearing that.<\/p>\n<p>[21:11] Now the United States is trying to convince France and Germany and the rest of Europe and the rest of the world to outlaw war.<\/p>\n<p>[21:23] War is where you determine who&#8217;s your friends and who are your enemies. And if you think politics is all about determining who the friend and enemy is, and that&#8217;s what the state does is to determine who is the friend and who is the enemy, who you&#8217;re going to go to war with and against, then the idea that you could outlaw war is absurd. It&#8217;s a contradiction in terms. If a state were to sign on to it, it would be essentially committing political suicide. Because it would be giving up its core function, he recognized the power that this treaty would have in terms of upsetting the political international order. So it&#8217;s not that Schmidt was a skeptic. In fact, he appreciated the power that something like the outlawry of war could have in terms of changing people&#8217;s ideas. And he was worried that what would happen was that we would move away from wars in the kind of overt sense of tanks and bombs and planes dropping bombs.<\/p>\n<p>[22:41] To economic sanctions and America using its economic might against.<\/p>\n<p>[22:50] Germany, and then also using the criminal law to criminalize people who go to war and who ultimately lose. And the irony, of course, is that Schmidt, 18 years later, becomes one of the targets for prosecution for the crime of aggressive war. And Hans Kelsen, who was very much in favor of the outlawry of war, would be on the other side helping the Americans shore up the international legal basis for the International Military Tribunal at Nuremberg. The fact that they end up 18 years later on opposite sides, and, it&#8217;s Kelsen that gets a professorship afterwards at the University of California, Berkeley, and Schmidt loses his job at the University of Berlin and becomes basically an outcast, there&#8217;s a kind of, karmic satisfaction for me there.<\/p>\n<p>[23:59] Now we wanted to talk about the incident in Cologne or like more about Hans Kesen&#8217;s career after he had to leave the University of Cologne. How did his career as a scholar of international law, but also a legal philosophy continue?<\/p>\n<p>[24:18] So Schmidt orchestrates his dismissal in 1933 from the University of Cologne. I mean, you know, paying him back for the kindness and for the generosity of taking Schmidt at his word. But again, like not recognizing again, the liberal not realizing that there&#8217;s this friend enemy distinction. And then he leaves and first he goes to Prague, I believe it&#8217;s, to Czechoslovakia to lecture. And that turns out to be like a fiasco.<\/p>\n<p>[24:56] Because the fascists there are not willing to let him lecture at the university about international law and the role of norms and regulating conflict. And then he goes to Geneva and he then has to leave there and he goes to the United States and he can&#8217;t find a job. He gets a temporary job. At Harvard Law School as the Oliver Wendell Holmes lecturer. Roscoe Pound, who&#8217;s a very significant legal thinker, but also the dean of Harvard Law School, gives him this job for two years, but he then leaves and he&#8217;s really facing penury. I mean, he doesn&#8217;t have a job. He can&#8217;t get a job. No American university wants to give him a job because he&#8217;s like some German law professor.<\/p>\n<p>[25:56] Why do they need a German law professor? And they want to give, there&#8217;s big cutbacks at universities because the students leave to go to the army and so they lose funds and anyone who gets hired, there&#8217;s going to be a preference, for Americans. And then he goes to California, University of California, Berkeley, and they have a military school. And he then works for the military school, teaching courses on Nazi Germany and the Austrian Constitution. He then he writes these letters to roscoe pound you know these abject letters saying like you know please do you have anything i&#8217;ll be a librarian i&#8217;ll i&#8217;ll be i&#8217;ll be whatever i just need a job, in the in the meantime i believe it&#8217;s is in 1944 1945 he publishes general theory of law and state, which is one of his really great works maybe his greatest work alongside the pure theory of law.<\/p>\n<p>[27:01] Briefly on the general theory. Kelsen&#8217;s general theory of law and state is, a development and synthesis of, themes from his earlier works, most notably from the general theory of the state of 1925 and the pure theory of law that we already covered before. In this new general theory of law and state, Kelsen presents these ideas in a form that is tailored to a new international audience. Whereas his previous works were mainly filled with examples from Germany and Austria, this new general theory also draws heavily on US constitutional law and also devotes more attention to international law.<\/p>\n<p>[27:48] In keeping with his systematic understanding of the law, Kelsen, of course, regarded international and domestic law not as two separate legal orders, but as part of one single legal system. So he was a strong monist in this sense. This also meant for Kelsen that international law was not merely a set of unbinding political commitments between states, but that it was genuine law forming part of one legal order also with domestic law. This understanding of international law would also provide the theoretical basis for his later work, especially in the early post-war years where Kelsen published extensively on the post-World War international legal order, for example on the law of the United Nations but also on individual criminal responsibility and international human rights law.<\/p>\n<p>[28:55] And one of the things that you see, I hadn&#8217;t noticed this, you know, when I had read, of course, general theory a bunch of times before, but I hadn&#8217;t realized if you look at the preface to general theory of law and state, he talks about.<\/p>\n<p>[29:14] You know, it may seem ridiculous to talk about law in 1944, 45, when the world is coming to an end. And it seems that law is not nobody cares.<\/p>\n<p>[29:28] And to talk about the importance of norms and reason and especially when there are people out there who are talking about the only thing that matters of power, and making decisions during the in the exception is of course talking exactly about carl schmidt as we would say nowadays he&#8217;s subtweeting carl schmidt and he said but you know what we have to do is we have to lay out, what law is what the state is what reason is because, the world isn&#8217;t always going to be like this um and you know he&#8217;s right and, the allies win the war and then he gets a job not at the law school but and the political science department at the university of california berkeley i believe he lives to 91, or 93 i mean he lives a very long life and he&#8217;s celebrated, as the great man and great thinker that he that he was um he gets a stamp from austria as the father of the constitution, and in the meantime carl schmidt ends up as an outcast though also, a bit of a cult figure in Plettenberg isolated, there&#8217;s no stamp, for Carl Schmitt.<\/p>\n<p>[30:56] And then I got to come and tell the story, as we would say now, bear witness at the inaugural Hans Kelsen Lecture at the University of Cologne through the kind and gracious invitation of Professor Kress and to speak, to the faculty of the University of Cologne about this historical injustice. But ultimately, you know, there&#8217;s a Hans Kelsen memorial lecture, not a Carl Schmitt memorial lecture.<\/p>\n<p>[31:33] There is a quote about Carl Schmitt that we find interesting, which is that, he was called one of those rare scholars who combined learning with imagination, but who can use book knowledge with a realistic sense of what is possible in politics. But looking at the Kellogg-Briand treaty, which was eventually ratified and, still builds the world we live in, even though they&#8217;re breaches, obviously, couldn&#8217;t one rather say that Carl Schmitt lacked a positive vision of what was possible and what was needed?<\/p>\n<p>[32:16] Yeah, I guess the question is, like, it depends on where you stand on the matter. I hate to say it. I mean, he was right about, like, in a way, the core claim, which was that the outlawry of war would, be used as a way of hiding military operations behind hygienic.<\/p>\n<p>[32:47] And humanitarian language. We call interventions we like in other countries, humanitarian intervention. We don&#8217;t call it economic war. We call it economic sanctions. We don&#8217;t call it conquest. We call it police action. So that there&#8217;s a way in which he&#8217;s actually quite astute about what is possible. It&#8217;s just that he&#8217;s against what is possible in this case. He wants to keep what we call the old world order. He wants to keep the system where states go to war, there&#8217;s the right of conquest, there&#8217;s no right of economic sanctions, of neutrals on belligerent, where we do not hold leaders criminally responsible for the wars that they engage in, because ultimately, he believes that this is going to lead to not just a more honest behavior on states, but, less vicious kinds of war. Because he thinks that when war is outlawed, what you do to the aggressor.<\/p>\n<p>[34:12] What you do to the one who goes to war is to treat them as a criminal, to treat them as a monster. And what you are willing to do to a monster is.<\/p>\n<p>[34:27] Very different than what you would be willing to do to an adversary on the battlefield in the pre-Kellogg-Briand era. Ultimately, the fact that he is not prosecuted, the idea that he is not summarily executed, the idea that he&#8217;s not tortured to death, that he can peacefully retire to his cottage in Plettenberg, I think shows that he was wrong about this aspect. So he was right to say that, you know, military action would still go on, but it would go on under different terminology. But I think he was wrong about ultimately what the consequences of that would be, and that it wouldn&#8217;t turn into the barbarism that he so predicted.<\/p>\n<p>[35:22] Yeah, and on the other hand, I mean, the numerous massacres of, Nazi Germany within the system that had not changed yet fully. It doesn&#8217;t really matter if the opponent is seen as a monster or as an opponent because the massacres show that in the field.<\/p>\n<p>[35:51] Yeah, I really agree with you on that. It&#8217;s not like, you know, as I say, that the predicted wars of extermination that he made did come to pass, but they weren&#8217;t what the Allies engaged in. It was, you know, what the Nazis perpetrated, which was avowedly a war of annihilation. So, you know, he was right, he was wrong. What&#8217;s so interesting about him is that, he&#8217;s a complex and complicated figure.<\/p>\n<p>[36:26] And also Hans Kielsen, because he really comes across as a person a bit ahead of his time, but at the same time, very much within the moment where certain steps and developments could have taken place, because there was the will and the possibility to do so, like to just go through the door. And on the other side, there&#8217;s just, yeah, a new legal order and international law. And so, yeah, you call the internationalists, these international lawyers that, fought for this world transformative figures because they were willing and able to use their ideas to change the world and I feel like Hans Kersen really had a realistic sense of what was needed at that moment in time for a world to change.<\/p>\n<p>[37:34] What a fascinating interview. Thank you so much, Elisa and Viktoria, to you as well for making this possible. Reuven, how did this interview leave you feeling?<\/p>\n<p>[37:47] I&#8217;m also completely fascinated, Manuel, but I must say I&#8217;m also a really big fan of The Internationalists and of Scott Shapiro in general. I always recommend the book, The Internationalists, and also his social media accounts because they are very entertaining.<\/p>\n<p>[38:06] I found the interview particularly interesting because it really showed how the biographies of Kelsen and Schmidt are, influenced on the one hand, by National Socialism, but on the other hand, how they themselves then go on, to influence international law. Also, I found it very satisfying to hear that ultimately karmic justice prevailed, and that Kelsen remained a venerated scholar after the war. And as Scott Shapiro pointed out, that there are ultimately now Hans Kelsen memorial lectures, Whereas Carl Schmitt struggled.<\/p>\n<p>[38:51] To put it mildly, after the Second World War, though it may be a bit too strong, I would say, to call him an outcast, as Scott does in the interview. While he never held any official position after the war, he did remain highly influential, and in particular continued to influence the legal discourse in Germany, but also internationally. And while he lived in the so-called Plattenberg exile so he had no formal ties to university, there were still scholars visiting him regularly so he could be seen to, still have some disciples even after the war and these were indeed quite influential figures themselves of German constitutional law like B\u00f6ckenf\u00f6rde or Isensee.<\/p>\n<p>[39:49] So outcasts strictly in a geographical sense back then, but what about today? How are Carl Schmitt&#8217;s theories received and studied today?<\/p>\n<p>[40:01] I would say today it&#8217;s safe to say that Carl Schmitt is by no means treated as an outcast. Some articles even speak of a renaissance of his thoughts. His theoretical foundations, particularly his concept of the Gro\u00dfraum, also called greater spaces, are being taken up both by the so-called new right, neue rechte, and within the North American foreign policy. Donald Trump&#8217;s new so-called Donroe Doctrine, a play on the Monroe Doctrine, is in the eyes of some commentators deeply rooted in the ideas of Carl Schmitt, who himself oriented his own theory around the Monroe Doctrine. Kyle Schmidt&#8217;s international law theory of the greater space has in fact often been invoked in connection with the legality of Trump&#8217;s military operation against Venezuela and his repeated threats to annex Greenland under international law.<\/p>\n<p>[40:59] Kind of frightening to see how Carl Schmitt&#8217;s theories are still important today. What can we ultimately learn from Kelsen&#8217;s and Schmitt&#8217;s intellectual and even personal rivalry?<\/p>\n<p>[41:14] They&#8217;re for sure many things to learn here and I&#8217;m very interested to hear your thoughts on this. What comes first to my mind is that what is so interesting about the differences of Hans Kelsen and Carl Schmitt, is that their legal theories kind of also reflect their personalities.<\/p>\n<p>[41:39] So while Carl Schmitt has, Scott calls him a prophet of doom or a Cassandra, a very negative view on the world, he to me seems like a person who has many fears. We&#8217;ve heard this in the diaries and believes in the necessity of a ruler. There is Hans Kielsen, on the other hand, who&#8217;s a legal positivist, who also seems to be a very positive person. As God says, he was not only a great scholar, but also a great, brilliant scholar, but also a great man. And when one looks at Hans Kielsen&#8217;s biography, he has throughout his life and career, been a visionary and been able to read the sign of times and make positive decisions and set positive incentives for a better future and a better world. And this actually touches me a lot. So what are your thoughts on this Viktoria, Manuel and Ruben.<\/p>\n<p>[42:58] I also find it very touching, and I find Kelsen&#8217;s life story deeply inspiring also. Throughout this interview and throughout this episode, we&#8217;ve so often talked about friend and foe, about the perception, especially by Carl Schmitt, that these two were enemies. And even though there was apparent personal dislike at least from one side and even though they had an intellectual rivalry, it appears to me that Hans Kelsen would never have considered them to be enemies but rather that they were cooperating in a way. They were both pushing science forward. So he was very idealistic in that sense, maybe not for his own best, but that I find deeply inspiring. On a more abstract level, this reminded me also of.<\/p>\n<p>[44:06] Political discussions we&#8217;re having at the moment, how not one should personally treat enemies, but how should democracies treat their enemies. And there, I would suggest the lesson should maybe be to be less noble than, Kelsen, but at least realize who the enemies are and take it seriously when someone presents themselves to be an enemy of democracy and, to confront that person or movement.<\/p>\n<p>[44:47] That&#8217;s an interesting thought. But I think also here Hans Kielsen had an idea because he, for the sake of democracy, created the constitutional court as a negative legislator. So this is a way, you know, to treat your enemy less noble, but in a democratic and legal way. But one has to use it. And i think that the constitutional court or the idea of a constitutional court is not the only thing that lasts from hans kesen even though some might say that a lot of karl schmidt&#8217;s vision still dominate the after world war time and also our world or the right now, there is also a lot of or a lot of, theories of hans kesen that dominate our world or the right now such as his ideas on the individual criminal responsibility, the artillery of war, or the prohibition of the use of force.<\/p>\n<p>[45:50] So, to sum it up, and I think I speak for all of us, that we, even in darker times, might it be in the last century or might it be today, there&#8217;s a need for visions. And no one could say that better than Scott Shapiro himself.<\/p>\n<p>[46:10] Let me bring up a point which I think speaks to the current moment and speaks to all of our preoccupations, which is that we live in a moment where international law is not looking great. Um you know there&#8217;s just there are conflicts raging around the world and it&#8217;s easy to, be pessimistic and despair um one of the things that we need to do especially as academics is keep on writing, proposing, discussing ideas that matter because when the time comes.<\/p>\n<p>[46:56] Where there is political will to change things for the better, when the world gets sick of what is happening, we need to have answers for them. We need to be able to say, like Kelson said at the preface to the general theory of law and state it&#8217;s not always going to be this way and when it isn&#8217;t this way we need to know what to do to rebuild if we give up if we give in to pessimism, then when things change because they always do um we won&#8217;t have an answer um, we won&#8217;t have a plan And one of the things that the internationalists did was they presented plans for a better world. And when things had hit rock bottom, and states decided there&#8217;s got to be a better way, they had something, to offer.<\/p>\n<p class=\"e-10811-text encore-text-body-medium\" data-encore-id=\"text\" data-slate-node=\"element\"><span data-slate-node=\"text\"><span class=\"sc-jgnaoi LKsIa\" data-slate-leaf=\"true\">\u00a0\u00a0<\/span><\/span><\/p>\n","protected":false},"excerpt":{"rendered":"<p>This is the second episode of the cooperation between the V\u00f6lkerrechtspodcast and the Mal nach den Rechten schauen podcast, in which we examine the continuities of National Socialism in public international law. This special episode was recorded in English. This episode focuses on two of the most influential, yet strikingly different, figures in 20th-century public [&hellip;]<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[3660,3603],"authors":[8107,7998,6666,8106,7276],"article-categories":[5371,6670],"doi":[],"class_list":["post-29758","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-history-of-il","tag-legal-philosophy","authors-elisa-costadura","authors-juan-manuel-klein","authors-rouven-diekjobst","authors-scott-j-shapiro","authors-viktoria-moissiadis","article-categories-media","article-categories-podcast"],"acf":{"subline":"Continuities of National Socialism in Public International Law (Part II)"},"meta_box":{"doi":""},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/29758","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=29758"}],"version-history":[{"count":5,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/29758\/revisions"}],"predecessor-version":[{"id":29780,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/29758\/revisions\/29780"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=29758"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=29758"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=29758"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=29758"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=29758"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=29758"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}