Looking at Habermas’ paper in NATO intervention in Kosovo (‘Bestiality and Humanity: A War on the Border between Legality and Morality’, Constellations 6:3 1999: 263-227), I noticed an oddity in his way of dealing with Schmitt
Habermas partly expresses his position through condemning the authoritarian conservative political, and legal, theorist Carl Schmitt for reducing international relations to this constant war, which leaves no room for the just war that enforces international order. This criticism comes up in pages 266-7 of the cited article. What he emphasises in Schmitt is the idea that there is not basis for war in human rights or universal values. What Schmitt is opposing is the tradition in which state actions are prescribed and limited, by a hierarchy of laws, and norms, which is erected on the basis of the most universal ethical norms. Schmitt is largely attacking the Jurist and legal theorist, Hans Kelsen; and Habermas makes reference to a normative cosmopolitan tradition from Immanuel Kant to Kelsen in the fourth paragraph of the paper, favourably, which looks like a challenge to Schmitt, A challenge confirmed by remarks on 266-7, which include a quotation from Schmitt that humans are beasts,
Habermas is does not think this intervention can be fully justified by the international law as it previously existed. The UN charter strongly opposes interference in the internal affairs of member states. Habermas did not write to condemn the Kosovo intervention It is an intervention which refers to morality rather than existing law, it is the intervention based on acting as it there is a global civil society, though it does not yet exist. The intervention was not wrong, it was however a precedent that should not be taken as a precedent. Self-legislating improvement should not be accepted. Habermas talks about being between morality and law, but he is halfway between legalism and the sort of decisionism he criticises in Schmit. Some force took the decision to intervene rather than follow international law, and that itself is a welcome intervention. We might wonder if Habermas really has disposed effectively of the Schmittian arguments: there is an Enemy, so terrible that he must be defeated regardless of previous law. Where does that leave Habermas’ transcendental approach to the universalisation of norms? What Habermas is referring to in the article, is Schmitt’s denunciation of humanitarian wars, and prediction ideas of universal values lead to war, to impose them on those lacking sufficient universality . So he agrees with Schmitt that humanitarianism leads to war, and he agrees that we should sometimes break international law, if only in relation to an emergent cosmopolitan morality.
So is Habermas a Schmittian humanitarian?