"There is indeed no better illustration or more explicit statement of the manner in which philosophical conceptions about the nature of the social order affect the development of law than the theories of Carl Schmitt who, long before Hitler came to power, directed all his formidable intellectual energies to a fight against liberalism in all its forms; who then became one of Hitler’s chief legal apologists and still enjoys great influence among German legal philosophers and public lawyers; and whose characteristic terminology is as readily employed by German socialists as by conservative philosophers. His central belief, as he finally formulated it, is that from the ‘normative’ thinking of the liberal tradition law has gradually advanced through a ‘decisionist’ phase in which the will of the legislative authorities decided on particular matters, to the conception of a ‘concrete order formation’, a development which involves ‘a re-interpretation of the ideal of the nomos as a total conception of law importing a concrete order and community’. In other words, law is not to consist of abstract rules which make possible the formation of a spontaneous order by the free action of individuals through limiting the range of their actions, but is to be the instrument of arrangement or organization by which the individual is made to serve concrete purposes. This is the inevitable outcome of an intellectual development in which the self-ordering forces of society and the role of law in an ordering mechanism are no longer understood."
January 1, 1970