David Dyzenhaus explains how Carl Schmitt’s anti-liberal critiques underpin today’s “Common Good Constitutionalism,” linking Schmitt and Voegelin to modern far-right thinkers. He warns that such theories both legitimize and encourage authoritarianism by undermining liberal democracy’s rule-of-law foundations.
Authoritarianism is not lawless. Nearly a century ago, during the interwar period as fascism was on the rise in Germany, a group of legal academics and philosophers criticized liberal democracy for paralyzing the state and argued that it should become more authoritarian. Carl Schmitt—probably the most well-known among them—became the “crown lawyer” of the National Socialists once they rose to power. In his 1934 piece Der Führer schützt das Recht (The Leader Protects the Law), Schmitt defended the executions ordered by Adolf Hitler in what is now known as the Night of the Long Knives. In doing so, he armed the Führer with the ultimate power to enforce the law, to create law, and even to act as the “people’s supreme judge.” Although Hitler thus assumed the powers of all three branches of government, Schmitt argued that he did not act as a dictator, since his actions themselves represented the “highest justice.”
Today, right-wing politicians with authoritarian ambitions are on the rise in many places, and it has been claimed that they are once again supported by a class of high-ranking lawyers and philosophers who seek to legitimize such developments and advocate for a “post-liberal” order. In the U.S., Professor Adrian Vermeule promotes a form of constitutional interpretation oriented toward the “common good,” which aims to ensure that “the ruler has the power needed to rule well.” Vermeule argues that “constraints on power are good only derivatively, insofar as they contribute to the common good.” Accordingly, the ruler may exercise authority for the benefit of the subjects—“if necessary, even against the subjects’ perception of what is best for them.”
On the other side of the Atlantic, in the U.K., Professor Richard Ekins has—with a similar preference for unconstrained executive power—advocated for the possibility of a governmental veto against legislation, exercised through Britain’s Monarch. This claim has been argued by some to clearly violate one of the country’s oldest and simplest constitutional principles. Professor Ekins is the head of the “Judicial Power Project” at the think tank Policy Exchange, which was highly influential in the adoption of the “Safety for Rwanda Act.” The statute declares that Rwanda must be treated as a safe third country for the removal of individuals arriving in the U.K., despite the fact that the country’s Supreme Court had ruled that Rwanda does not meet the necessary requirements. In policy reports, Ekins argued that the legislation should “prevent a court from ordering the Home Secretary to return claimants to the UK” and that it needs “to anticipate the likely grounds of litigation and (…) disarm them.” As a result, some have suggested that a more fitting name for the project would be the “Executive Power Project,” describing it as authoritarian in disposition and reminiscent of the work of Carl Schmitt.
David Dyzenhaus is a professor of Law and Philosophy at the University of Toronto, a Fellow of the Royal Society of Canada and a Corresponding Fellow of the British Academy. He is currently working on a book project entitled The War Against Law: An Essay on Common Good Constitutionalism.
Fascist Roots
Konstantin Kipp: In a recent lecture, you argued that “Common Good Constitutionalism” is rooted in the legal philosophy of Carl Schmitt, who is widely recognized for legalizing the transition from liberal democracy to authoritarian rule by normalizing the use of extraordinary powers. It has been argued that Schmitt was less opposed to the rule of law itself and more critical of the fact that it was conceived in a liberal manner; he sought to establish a National Socialist conception of the rule of law. While recognizing the difficulty of doing this in a limited format, could you give an introduction to Schmitt’s critique of liberal democracy—although stating that Schmitt’s understanding of politics was deeply flawed, you and others have argued that there is something to this critique—and explain how he justified the rise of authoritarian rule?
David Dyzenhaus: It is not that easy to give an answer to this question since Schmitt switched between two different critiques of liberalism. On the one hand, he expressed contempt for liberalism as a weak political doctrine with the weakness arising from its commitment to neutrality. That commitment disabled it from being able to make the fundamental distinction of ‘the political’—between friend and enemy.
As a result, the liberal state offers to its enemies the opportunity to destroy it from within. Schmitt was not alone in offering this critique. Most famously, Josef Goebbels said: ‘This will always remain one of the best jokes of democracy—that it gave its deadly enemies the means by which it was destroyed’.
The critique was taken by some of Schmitt’s contemporaries as a serious diagnosis both of the problems of Weimar democracy and of liberal democracy more generally. Most prominently, the political scientist Karl Lowenstein coined the term ‘militant democracy’ for a theory about how liberal states can and should take defensive measures to protect themselves against their enemies. As Lowenstein saw, if a state is committed to free and fair elections and to complete freedom of political expression, authoritarians can win power using the tools liberal democracies guarantee to all. And once in power, as we can see in Trump’s USA, they can set about either capturing institutions, as is the case with the judiciary, or dismantling them, as is the case with much of the federal government, or bullying them into abject submission—the universities, the media, big law firms. So the critique can add that even if liberalism adopts defensive measures—for example, banning extremist political movements and parties, criminalizing hate speech, and so on—it cannot cure its inherent weakness.
On the other hand, Schmitt also sometimes portrayed liberalism as the arch enemy because of its success in forcing rival political doctrines to privatize their most fundamental commitments. For example, in liberal states, someone who believes that all abortions are murder and that homosexuality is a sin is forced to accept that the state should not be in the business of enforcing these values so that the values may govern only the lives of those who choose to live by them.
This kind of liberal tolerance is alleged to be a kind of intolerance because, if it succeeds in establishing itself across society, rival illiberal political doctrines find their strength sapped to the point where they become pale shadows of what they once were. Individuals become the sole arbiters of what is good for themselves.
On this critique, and to evoke the title of a book by the far-right Polish philosopher Ryszard Legutko, much admired by Vermeule, liberalism is ‘the demon within’, a more successfully totalitarian ideology than either National Socialism or communism. It is this second critique that is supposed to supply the justification for authoritarian rule. Such rule is necessary to exorcise the demon within.
The two critiques are in severe tension if one tries to articulate them in a coherent political theory. But they are very effective in combination as a political ideology which does not need to be bothered by coherence. For this ideology, liberalism as the arch all-powerful enemy—the ‘deep state’—provides the rationale for using the resources to destroy it that the inherently weak liberal states offer to their enemies. One finds this ideology dressed up as political theory, in the writings of the ‘organic intellectuals’ (to use Gramsci’s term) of the far-right, for example, Patrick Deneen, Vermeule and Yarom Hazony.
You report a claim, citing a book review, that Schmitt ‘sought to establish a National Socialist conception of the rule of law’ because he thought that the concept of the rule of law had been captured by liberals. It is true that Schmitt during his flirtation with the Nazis participated in what the distinguished legal historian Michael Stolleis called “the quarrel over the Rechtsstaat” and it is worth noting that the reviewer refers at this point to Schmitt’s writings from the period in which he was seeking to maintain his place among Nazi jurists. That quarrel arose because the jurists in the Nazi Party were required to do the impossible, to find a theory of the rule of law that could justify the widespread and regular resort to illegality. In 1932 in the Introduction to his Legality and Legitimacy, Schmitt said he would not be using the term ‘Rechtsstaat’ because it “can mean as many different things as ‘law’ itself’”; and of “law” he said, quoting Goethe,“Law should above all be what I and my friends value”. But after 1933, that is, after Hitler had seized power, Schmitt did not have the luxury of an academic able to observe that the rule of law can mean many different things. He had to argue that a particular conception is correct—the conception that could make sense of the fact that the Nazi state often resorted to illegality. This issue is interesting in the context of this interview because the jurists who are involved in the current push towards authoritarianism are also required to find a theory of the rule of law that justifies resort to illegality. For them, it is crucial to argue that the correct conception of the rule of law is the one that legitimizes executive rule.
It may be important to add a cautionary note at this point. I and others have been accused of “smearing” the far-right lawyers whom I criticize by associating them with Schmitt, a “Nazi” jurist. But as I have always taken the trouble to emphasize, Schmitt was not a “Nazi” jurist. He was a fascist. That he chose to ingratiate himself with the Nazis after 1933, after he had praised Hitler in his 1934 piece Der Führer schützt das Recht (The Leader Protects the Law) for murdering among others General Kurt von Schleicher to whom he had been allied, testifies in part to the craven ambition of this academic.
But it also testifies, as I have argued, to the fact that anyone who adopts as his political stance one of “anything-but-liberalism” has no principled objection available to him when a ruler seizes power whose anti-liberalism differs from his own. Put differently, one reason Schmitt could, for at least a time, ingratiate himself with the Nazis was that as a fascist anti-liberal he had no principled basis for objecting to Nazi anti-liberalism.
This issue is also relevant to the interview because while Vermeule, Deneen and Hazony may disagree on many things, what unites them is their fervent anti-liberalism, a stance which disables them from distinguishing themselves on principled grounds from figures even further to the right. See for example Ezra Klein’s podcast in which Hazony is unable to answer this kind of criticism.
Another academic from the same time period whom you mention as even more important for the current political right than Schmitt is Eric Voegelin. Similar to Schmitt, Voegelin has been said to adhere to a nationalism that led him to an authoritarian conception of the state. During the interwar crisis of liberal democracy, this caused him to embrace solutions put forward by “far-right strongmen.” In his 1936 book The Authoritarian State, Voegelin embraced Austria’s turn toward authoritarianism as “necessary in order to save the state.” However, in 1938, after the Anschluss of Austria to Germany, Voegelin was threatened by Nazi forces and migrated to the U.S. He then became known for his work on “political religions”—political movements that adopt symbolic religious tools—a term he applied to communism, fascism, as well as National Socialism. Why is Voegelin an important thinker for the far right in the U.S. today? What differentiates his theories from those of Schmitt? Did Voegelin abandon his affinity for authoritarian politics and nationalism after the Second World War, or did he merely find new ways to express them?
Voegelin is exceptionally important to an understanding of far-right ideology. Long before Schmitt had any influence in the US, he was hugely influential, the major intellectual force behind William F Buckley’s National Review. In addition, he is the major twentieth century influence on John Finnis, who provides the intellectual inspiration for the far-right legal academics in the UK who make up the Judicial Power Project.
I can begin to answer your question by quoting from Aurel Kolnai’s 1938 The War Against the West, perhaps the first comprehensive study of Nazi and fascist ideology. Kolnai said of Voegelin that he ‘always stays at a certain refined distance from passionate partisanship’ and that ‘if this condemns Voegelin in Hitler’s eyes, it does not by any means acquit him in ours. … In so far as he is on bad terms with official Naziism, he is not the only man to incur such misfortune through stating Nazi Weltanschauung too intelligently’.
In other words, Voegelin was adept at stating views that appear too extreme when articulated by the Laura Loomers, Steve Bannons, Tommy Robinsons of our world in a refined (though very obscure) academic language. He was, one could say, an adept scholarly dog whistler. Two more features of Voegelin are also important. First, like other enthusiasts for Austrian fascism, he was deeply opposed to the Nazis. That was enough to put him in disfavor after the Anschluss and he left Austria for the USA. Somehow his disciples have created the myth that he was about to be arrested and was on some kind of ‘hit list’. But there is no evidence of this. Indeed, Voegelin himself does not support this myth in his memoir. Since this short book is a revolting parade of self-regard, it is revealing that he did not give any support in it to the myth. What the book does reveal is that far from dropping his racist and fascist views of the 1930s, he remained proud of them. Second, and this is the difference with Schmitt, Voegelin liked to talk in mystical quasi-religious terms of ‘transcendence’. While he was not Catholic, indeed, it is unclear what his religious commitments were, it is this mystical transcendental talk that attracts Christian nationalists like Vermeule and Finnis to him.
Common Good Constitutionalism
The theory of today that you focus on in your upcoming book is “Common Good Constitutionalism”, a term coined by the Harvard Professor Adrian Vermeule. In the book named after the theory, Vermeule draws on the work of Ronald Dworkin who argued that in cases that are not clear-cut, judges’ interpretation must be directed toward what is morally good. However, Vermeule only borrows Dworkin’s methodology and rejects the liberal ends toward which Dworkin’s proposals for judicial interpretation pointed. Instead, Vermeule proposes an interpretation directed toward the “common good.” This notion seems to conflict with a pluralistic democratic society, as it is based on the idea that there is one common good shared by all members of society, rather than many different conceptions of life that must compromise with each other through democratic processes. As mentioned earlier, for Vermeule this “common good” can be exercised even against the subjects’ own perceptions of what is best for them, and later they “will come to thank the ruler.” In your speech, you mention that common good constitutionalism might be inconsistent with the rule of law. Could you explain how common good constitutionalism draws on the work of Voegelin and Schmitt? Is it inconsistent with the rule of law, and if so, does it intend to legitimize the rise of authoritarianism?
You begin by mischaracterizing Dworkin’s position, but the mischaracterization is very helpful in explaining why Vermeule does not use the Dworkinian methodology he purports to deploy. Dworkin’s interpretive methodology does not say that judges’ interpretation must be directed towards what is morally good. Rather, interpretation must be directed at showing the law in its best moral light based on the principles both explicit and implicit in the legal materials relevant to answering the legal question posed by the case. It is Vermeule who argues that judges’ interpretation must be directed towards achieving the common good.
Now the common good, according to Vermeule, is a reactionary and highly controversial version of Catholicism. And while he covers this up in his book with a lot of talk of “the classical tradition”, his conception of law is entirely instrumental. Law is what the ruler promulgates for the common good. For Schmitt, the rule of law is just a liberal sham. Law is merely an instrument of power.
It is not so much that common good constitutionalism intends to legitimize the rise of authoritarianism, as that it is the constitutional theory of authoritarianism. It is, as HLA Hart described Austin’s legal theory, law seen as the commands of an uncommanded commander. Voegelin, I should note, did not write much about law after his book in praise of Austrian fascism, in which he for the most part adopted Schmitt’s legal theory. He wrote a short monograph on law during his time in the USA, but it is composed of vague musings and offers no account of the rule of law.
One aspect you mention that appears key to understanding the differences between the theories from the interwar period and the modern thinking of figures like Adrian Vermeule and Richard Ekins is the change in authoritarian strategy in the 21st century. Through modern autocratization processes—such as in Hungary under Viktor Orbán or Poland under the rule of the PiS party—contemporary authoritarians have understood that on paper, adherence to democratic procedures, values, and institutions grants legitimacy and is therefore beneficial to their aims. The modern “authoritarian playbook” focuses on capturing democratic institutions and undermining the rule of law through formally legal mechanisms. This change of strategy has been observed, for example, in work on “abusive constitutionalism” as well as the “misappropriation of human rights.” Does this modern authoritarian strategy of attacking democracy and the rule of law while maintaining a façade of adherence reflect in the work of the “common good lawyers” and if so, how?
It is reflected. But one must take into account that how their ideology will play out is heavily context dependent. Vermeule offers a theory of constitutional interpretation because he knows that the majority of the Supreme Court will decide in favor of the Trump administration on the most important issues, ruling against him only to the extent necessary to preserve a façade of independence. Ekins is operating in a very different legal system, one in which there is parliamentary supremacy and the Prime Minister can’t make the claim that he can rule legitimately by executive order. So instead Ekins and his fellow common good lawyers claim that the UK constitutional tradition is one in which the conception of the rule of law is ‘thin’ and that the thin conception of the rule of law is satisfied when Parliament delegates authority to executive officials and strips judges of their review authority. That’s how one achieves rule by executive order in the UK.
Common Good Constitutionalism in Concrete Cases
Your analysis of the consistency of common good constitutionalism with the rule of law does not remain abstract but also extends to concrete cases—most notably, the UK’s “Safety for Rwanda Act.” This Act appears to have been influenced by the “Judicial Power Project,” led by University of Oxford legal philosopher Richard Ekins and shaped by the thought of his mentor John Finnis—scholars you also classify as common good constitutionalists. Translating their theories into think tank policy work, you argue that these scholars are waging a war against the law in general, and particularly against the international human rights regime, represented in the UK by the European Convention on Human Rights. Most clearly, they seek to deprive migrants removed from Britain to third countries of any legal remedies, in order to ensure the unconstrained exercise of executive power. How exactly does common good constitutionalism justify practices that are questionable from a rule of law perspective in this case, and how is it thus used to wage war against the “law”? Do Ekins and Finnis seek the same “common good” as Vermeule, or are they united only in their antagonism toward certain values—a phenomenon you once described as a “negatively prescriptive theory”?
Ekins and his fellow common good lawyers did provide the legal arguments in support of the Rwanda Act. But what’s interesting is that they thought that the Act did not go far enough in stripping judges of their review authority. The Conservative government retained some slivers of judicial review authority so that it could claim that the Act was consistent with the rule of law in order to appease some of their parliamentary party who were deeply concerned about this issue. Ekins and his fellow common good lawyers were as deeply concerned that clever human rights lawyers would exploit these slivers to slow down implementation of the Act. So, while the Bill was going through Parliament, they advocated getting rid of even these slivers, which altogether astonishingly they claimed could be done consistently with the rule of law. Their conception of the rule of law is not much thin as empty. What the ruler does is legal.
Finnis and Vermeule are both ‘integralists’: their aim is to rid society of pluralism and to establish an ideologically homogenous society based on a Catholic doctrine of the virtues.
Vermeule is an open admirer of Schmitt and differs from him only in that Schmitt, who had been excommunicated, did not insist that Catholicism be the basis of homogeneity. For Schmitt, anything anti-liberal would do. Finnis, as far as I know, has only once referred to Schmitt. But in that one reference, while he expresses distaste for Schmitt’s version of homogeneity, he says that one must not “recoil” from it. And he mentions with approval the example of the Australian Catholic Bishops who in 1957 “spoke with undisguised appreciation of national homogeneity (as something to be valued and retained, not, of course, to be imposed), and of the need for ‘cultural pluralism’ to give way, after a generation or so, to “complete cultural integration”’. Ekins does not express his political views much. He tends to bury them under his legal arguments. But my guess is that in this, as in other things, he pretty much adopts Finnis’s position. My claim here is not that Finnis and Vermeule have exactly the same view. In this regard, one should take into account that there seems to be distinction between “hard” and “soft” integralists. On this distinction, Vermeule is a hard integralist because he seems to welcome highly coercive state enforcement of his moral ideology while Finnis is soft because he is concerned about state overreach, a concern that leads other integralists to criticize him for being too liberal. However, as the two scholars who make this distinction argue, it disintegrates both in theory and practice. (Xavier Foccroulle Ménard and Anna Su, ‘Liberalism, Catholic Integralism, and the Question of Religious Freedom’ (2022) 47 Brigham Young Law Review 1171.)
While the “Safety for Rwanda Bill” will seemingly be rolled back and thus never come into effect, it appears that, on the other side of the Atlantic, the chances of common good constitutionalism succeeding in establishing a “post-liberal” order are greater. The United States is now led by a president with an undeniably authoritarian mindset. The “unitary executive” theory—elements of which most U.S. presidents since George W. Bush have embraced, though none have adopted wholesale—might grant a “ruler” who pushes it to its limits the power Adrian Vermeule deems necessary to decide for the common good. Recently, it has been argued that common good constitutionalism is gaining traction in the U.S. judiciary, with the book increasingly being cited in court decisions. Do you believe that common good constitutionalism could become a widely applied theory in the U.S. during a second Trump term and beyond?
In Vermeule’s book, he argues against the dominant ‘originalist’ method of interpretation adopted by the rightwing majority on the Supreme Court. It may well remain dominant. But it will be deployed in the service of something like Vermeule’s common good constitutionalism.
I am not as confident as you in the judgement that the chances of common good constitutionalism succeeding in establishing a “post-liberal” order are greater in the US than in the UK. Nigel Farage’s Reform Party is ahead in the polls and the Conservatives and even Labour keep moving to the right in order to try to outflank him. Within Labour, the influential ‘Blue Labour’ group embraces a common good ideology which is hardly different from Vermeule’s or Finnis’s.
Finally—and perhaps most importantly—I wanted to ask for your view on the extent to which such theories are relevant and impactful. Do you think these legal theories merely serve to legitimize developments already underway, and therefore play only a secondary role? Or are they actually capable of encouraging authoritarian practices by persuading people that the current liberal democratic system is incapable of addressing today’s challenges?
I think one should reject the choice you stipulate between merely legitimizing and encouraging. Clearly, these legal theories do both. The extent to which they do either depends on the context. Vermeule used to be a conservative libertarian in a standard Chicago law school way and then converted to his version of Schmittian authoritarianism a few years ago. It’s not that I doubt the sincerity with which he holds his current views. But I also don’t think one should underestimate the craving for power and fame that drives a certain kind of scholar. My sense is that he more inserted himself into authoritarian trends than encouraged them. His ability to do more will depend, I think, on the extent to which JD Vance holds sway within the Republican Party. In contrast, Finnis has been quietly and steadily building the intellectual movement of which he is the leader since the 1960s. (The best account of his trajectory is Coel Kirkby, ‘Abysmal Jurisprudence: On the Genesis of John Finnis’s Practical Guide to Statesmen’ (2024) 74 University of Toronto Law Journal 119.) He is, in my view, the most influential legal scholar of the postwar period in terms of his actual impact on politics. But with both Vermeule and Finnis, one should take seriously the term I borrowed earlier from Gramsci of the ‘organic intellectual’.
When I was a student in Oxford in the 1980s, and supervised part of the time by Finnis, an excellent supervisor I should mention, we students knew about his views on abortion, homosexuality, and so on. But we used to think that we could ignore these views as entirely tangential to his work in legal theory. It was only when these views started to resonate with populist trends that it became clear how one could not understand his legal theory without seeing these views as central to it.
The pivotal moment in the UK is in 2015 when the ‘The Judicial Power Project’ was founded, headed by Ekins. He had been approached by Dean Godson, the director of Policy Exchange, an influential figure in UK Conservative politics. Policy Exchange is a leading rightwing thinktank, secretly and very well funded. The Judicial Power Project opened in 2015 with an introductory speech by Michael Gove, the Conservative politician who played a central role in the UK’s lurch to the right with Brexit. Gove, at that time Minister of Justice, said that he considered the project ‘one of the most important pieces of work by any think tank and academic institution in Britain today’. In retrospect, it seems clear that Gove expressed this view because his government, Godson, Ekins and Finnis, who gave the keynote address at this event, saw the Project as providing both the inspiration and the legal arguments for the campaign against the rule of law to come, of course helped by the luster imparted by the fact of Oxford professors driving the project.
