Opinio Juris is one of my favorite blogs, and just last week I submitted a comment piece for the Russian online journal Gazeta.ru dealing with the exact same subject as this post about Carl Schmitt:
My reason for moving away from Schmitt as a means of explaining or understanding political or legal theory in America is that the connection is simply historically too contingent. Schmitt’s clarity as to things like emergencies can be found in many forms of philosophical discourse, and I think it is more useful to locate them in sources that have a greater historical connection to the intellectual roots of the debates in America, if the purpose is to understand those debates in an American context – Thucydides, or even Machiavelli. Put another way, I don’t really think that Schmitt is comprehensible outside the context of Weimar. Nothing is weirder or more intellectually misplaced to me, these days, than to read somewhere about the “Schmittian” approach to emergency in the Bush administration, for example. No one in the Bush administration had ever read Schmitt, ever heard of Schmitt, and to describe the approach as Schmittian adds, in my view, very little intellectually to understanding what it thought it was doing, or what it was doing. This is not to suggest that it did not have a strongly held view of the role of executive power, particularly in an emergency, nor is it to deny that Schmitt had interesting things to say about emergencies and parliamentary democracy. But the one does not really connect with the other, at least not in the way that makes it useful for American legal theory. We are not Weimar. If this means that I think there are limits on ahistorical application of ahistorical political theory, well, at least in the context of a philosopher who cannot help but be located in everyone’s brain as forever about Nazis and Weimar, yes.