The main task for revolutionary workers in Germany today is no longer participate in the “domestic disputes” between the various right, center, and left currents within the Communist parties and around the Communist parties, which will inevitably continue with great intensity within the inner circle of those involved for some time to come. Our task is to consign to the graveyard of history that dead “communism” which haunts the present proletarian workers’ movement as a sad and sometimes ridiculous spectre, and to throw ourselves with redoubled energy into the present and real struggles of the working class, which are already beginning with palpable new strength. Here is Rhodes, jump here!

Karl Korsch, »Die zweite Partei«, Kommunistische Politik, 1927

In 1932, the forty-six-year-old legal scholar and socialist theoretician Karl Korsch (1886–1961) published a review of Carl Schmitt’s Der Hüter der Verfassung (The Guardian of the Constitution) in the Zeitschrift für Sozialforschung. In this book, Schmitt presents his arguments for the evolution of what he calls—in a text translated by Hunter Bolin for this dossier—the neutral state into the total state. As Korsch notes in his review, Schmitt’s idea of the neutral state is equivalent to the pouvoir neutre—neutral power—of French democratic legal theory, a power that established, secured, and maintained the balance and harmony of the different powers (legislative, executive, and judicial) of the state apparatus. This is the problem that the texts by Korsch and Schmitt gathered in this dossier address. A few of them are old translations worth returning to—we are not aiming for originality—but several appear here for the first time in English, translated by Bolin. Read together, they shed light on the present period and help us grapple with crucial problems we have explored in earlier texts.

The neutral state is a sovereign state focused on defending the security and property of citizens within a specific territory. This centralization of politics in the hands of the sovereign, and, as we shall see, the depoliticization of society, was, for Schmitt, crucial for establishing public order. His famous definition of politics as the distinction between friend and enemy was not a fetishization of war or conflict. Rather, it was an attempt to show that social, cultural, or what Schmitt—who would become something of a crown jurist of the Third Reich—came to describe as racial differences, could turn into antagonisms leading to civil war. The state, as he insisted in the 1936 article “Politics,” was the mechanism for establishing peace in a world prone to enmity, not a machine for perpetuating war. On the contrary, the point of the state was to monopolize politics in this existential sense and depoliticize the pluralistic modern society that was on the brink of revolution. This need to control society necessitated the brutality of a political movement such as the NSDAP, which Schmitt theorized famously in 1933, but for him, the sovereign was the ultimate and neutral power.

This is why Schmitt has rightly been seen as an authoritarian liberal rather than a reactionary conservative. He criticized liberalism above all for threatening the state—through, for instance, its defense of the right of conscience—not for its defense of the natural right to property. The primary threat that liberalism could not contain, in Schmitt’s view, was the growth of what he in one of the texts in this dossier simply called society: that is, the emergence of an increasingly unregulated social sphere (visible above all in the worker’s movement) that could make radical demands on the state. The growth of society was, according to Schmitt, inevitable, driven by the growth of the capitalist market and the profound political and cultural transformations it produced. For, as Korsch insisted in his book on Marx from 1938, “civil society” was no longer “a homogeneous whole, opposed only to feudalism” for it was increasingly “torn into two opposed ‘parties.’ The assumed ‘civil society’ is in reality ‘bourgeois society,’ namely, a society based on the cleavage of classes, in which the bourgeois class controls other classes economically and therefore politically and culturally.” As we will see, for both Korsch and Schmitt, this development implied the impending eclipse of the state—and perhaps even the end of history.

For a long time, the state could be clearly distinguished from the social sphere. But with the expansion of the capitalist market and the industrial world, the two began to merge, since the state—as the guardian of public order, life, security, and, of course, the economy in a given territory—was forced to address, shape, and govern the demands emerging from society. Workers required public education, some form of welfare, and the world of firms had to be regulated and taxed. The growth of society, Schmitt argued, was in this sense existential for the modern territorial nation-state. The state remained a political mechanism that wielded legislative, political, and sovereign power to rule and enforce order within its borders. But the rise of what the excommunicated Catholic Schmitt—drawing on a classical theological concept in his book on Thomas Hobbes—called indirect powers threatened that sovereignty to such an extent that the state was forced to become total.

In a text from 1931 that we have translated for this dossier, Schmitt announced that this process had already begun with the victories of Fascism in Italy and Communism in Russia. Fascism and Communism, born from the growth of an increasingly differentiated industrial and capitalist society, attempted to mobilize popular social forces into the state. A similar path, Schmitt thought, was necessary for Germany. The state could no longer be a neutral mechanism that governed the land and controlled society from above by force. It had to become a total state that intervened directly in society. Yet the total state still needed a neutral guardian—a kind of constitutional dictator—to protect the sovereignty of the state from a society that threatened to become explosive and tear the nation apart. The totalization of the state, in Schmitt's view, was the only way that the state could rule over society—as opposed to being ruled by it and risk being overthrown in a revolution.

Korsch described this same process in a 1932 article that he published in a review edited by the vitalist and left-communist Franz Jung. He noted that “the new form of union of the economic and political class power of the bourgeoisie in the fascist ‘total state’ demands new forms of combining the economic and political action of the proletariat” and that Italian Fascism could be seen as “an ‘export commodity,’ the expansion of the opposition Italy-France to the opposition Europe-America.” It was, in other words, the international class struggle—visible in the Russian Revolution 1917-1921, the social unrest in Germany 1918-1921, the Irish war of independence 1919-1921, and the Iraqi revolt in 1920 uniting Sunnis and Shi’is against British rule—that was countered by Fascism which, in Korsch’s view, ultimately implied “the restoration of the class-state in the form of the class-state.”

Korsch, who was two years older than Schmitt, was also a lawyer and legal scholar. He studied in Munich, Geneva, and Berlin, became a Juris Doctor in Jena in 1911, studied the common law in Great Britain between 1912 and 1914, and became fascinated by Fabianism. Korsch then, as Paul Mattick wrote in 1962, “became a communist representative in the Thuringian Diet, a Minister of justice in the short-lived Labour Government of the State of Thuringia and, finally, from 1924 to 1928, a member of the German Reichstag. During this period he wrote extensively on the current political and theoretical issues that agitated the radical post-war labour movement. He became the editor of the theoretical organ of the Communist Party, Die Internationale, and soon thereafter edited and wrote for the oppositional paper, Kommunistische Politik.” He was, in other words, pushed to the left by the same economic and social turmoil that drove Schmitt toward reactionary liberalism.

As Hjalmar Falk’s text in this dossier makes clear, Schmitt, although an authoritarian Nazi apologist, was not a romantic reactionary longing for the past. He was rather a modern thinker who defended the Hobbesian state—that is, the Leviathan born of the secularization of society and in response to the religious wars that had torn nations apart. And it was this state—the modern secular nation-state, built around the capitalist market and centered around the rights to security and property—that Schmitt sought to defend by any means, believing the alternative to be violence and anarchy. Schmitt’s use of political theology was therefore not, as is sometimes assumed, a conservative appeal to a religious past, but rather a means to defend the sovereignty of the modern state and to critique the tradition of natural law that had been so crucial both to religious and modern revolutionary thought, as such different thinkers as Loren Goldner and Ernst Troeltsch have shown.

This was the very tradition that Korsch defended in a text translated for this dossier, “The Law of War and Peace in Labor Law”, a text which was never published but that was the basis for his inaugural lecture at the University of Jena that he held under protest from staff and right-wing activists in 1923. In this lecture Korsch points to “the truly ‘scientific,’ vibrant, creative, and revolutionary spirit of the theorists of natural law.” In an earlier essay, “What Is Socialization”, where he distinguished socialization from nationalization—and thus from mere state control over the means of production—he had quoted the Roman jurist Ulpian, who had argued that there existed a law taught by nature to all animals, and that according to this law, all humans are born free and equal, with an inherent capacity for free association. In this essay Korsch argued that the capitalist attempt to differentiate private and public law had never been complete. He emphasized that the owner’s right to use the means of production as they wished—a right protected by the German constitution—was consistently restricted by public laws: rules and regulations enacted for the common good. Likewise, the material unfreedom of propertyless wage laborers—stemming from their merely formal ‘freedom’ to sell their labor—was mitigated in practice by legally mandated limits on contractual freedom and by various public protections for workers. These laws were an attempt to alleviate the social unfreedom generated by capitalism and demonstrated that public law, even under capitalism, shaped the relationship between labor and capital, but they did not question the right of the employer to direct work activities, establish workplace policies, and manage employees nor the right to private property as such.

Korsch distinguished the tradition of revolutionary natural law from modern positive and liberal law, which Anatole French had characterized as the law that “forbids all, with equal majesty, the rich, as well as the poor, to sleep under the bridge”. By contrast natural law was not grounded on the positivity of the state, but on the social and biological needs of the working class to truly govern their life. Law, in other words, did not need to be a law of the state but could rather point to what Engels infamously described in 1872 as the authority and force needed to transition out of capitalism. Yet, it could also designate the need for what Engels did not address in this text––justice––and hence an an ethical vision of Marxism as what Korsch in 1934 described as a critique “not [of the] existing capitalist society in its affirmative state, but declining capitalist society as revealed in the demonstrably operative tendencies of its breaking-up and decay”. For Korsch, Marxism was in danger of becoming an affirmative Weltanschauung rather than a critique of a mode of production increasingly prone to rule not through mute compulsion but through war and naked violence.

Korsch argued for socialism because he saw that the liberal and political rights of the modern capitalist state needed to become social rights—rights that would reshape the sphere of production itself and thereby move society beyond the class antagonisms and intra-imperialist conflicts that push capitalist states into war. The democratic-republican state granted its citizens political freedoms—such as freedom to trade, free access to education, and the right to vote—but gave those who had to sell their labor to survive no real power to govern work, and thus life itself. This became especially clear during the First World War, when most of the warring states introduced compulsory military service and sent millions of their citizens to the slaughter. It was the catastrophe of war—and the shift to a war economy that merged state and market while still upholding private property as a legal right—that led Korsch to see the nation-state as something other than a guarantor of peace, and to consider natural law as a revolutionary alternative.

At the outset of the Great War, Korsch held the rank of lieutenant but was swiftly demoted to sergeant after expressing his opposition to the German Army’s invasion of neutral Belgium. Despite this disciplinary action, Korsch remained steadfast in his pacifist convictions and refused, according to some stories, even to carry a weapon. This may or may not be accurate, but he clearly did not want to kill and, as we will see, he even began to question whether civil war could be the basis for revolution. After the end of the First World War and during the German revolution, Korsch was driven from his early interest in political Fabianism and reformist socialism toward the more radical positions associated with the inter-war left communists. This shift is most clearly visible in his work with the journal Kommunistische Politik. He was still something of a Leninist when he began working on the journal, but he increasingly found that he could neither accept the chauvinism of German Social Democracy nor the evolution of socialism in the Soviet Union towards what Schmitt had called a “total state”—a state built upon a vast and at times highly effective industrial apparatus through the militarization of the economy and even forced labor. It was for this reason that Korsch broke with his initial form of oppositional Leninism and began collaborating with council communists such as the earlier mentioned Mattick.

What makes Korsch especially relevant today is the way his form of critical Marxism—the Marxism that V. I. Lenin famously denounced as an infantile disorder—remains connected to intellectual currents and social movements that much of the radical left has forgotten. Among these is the tradition of revolutionary natural law, which Schmitt rightly saw as a threat to the Hobbesian conception of the state. Korsch’s use of the tradition of natural law certainly remains fragmented but it is evident in “The Law of War and Peace in Labor Law” The arguments in this text from his Nachlass indicate Korsch’s revolutionary optimism during the 1920s and is interesting since it argues that law is driven by force and power at the same time as it seeks to establish a justice––a justice that even necessitates a critique of law and right as such if it wants to become social and not merely formal and political.

In this essay, Korsch returns to “the great theologian, philosopher, and jurist Hugo Grotius”, who lived during the tumultuous Thirty Years War (1618 to 1648). Grotius helped Korsch rediscover a foundational idea forgotten in the modern era—an idea that can be seen as diametrically opposed to Schmitt’s attempt to defend the state’s monopolization of politics—namely, “that all law, when considered according to its true concept, is the law of war and peace.” Korsch writes:

This insight of Grotius, which was preserved throughout the entire era of natural law in one form or another, means something entirely different from the modern division of so-called international law into two parts: the law of war and the law of peace. According to Grotius, war and peace constitute a social whole.

This radical yet simple idea, Korsch believed, had asserted itself as a political and even legal truth after the First World War, which showed that war had become omnipresent and revealed the foundation of the capitalist state as the war machine it ultimately is:

This omnipresent war, when viewed in the broader context of modern bourgeois society, by no means disrupts or hinders the commercial transactions of the citizens of this society, but rather must be regarded as its indispensable precondition, as the most powerful lever and promoter of all truly profitable enterprises within this society.

With the outbreak of heightened social conflicts and revolutions that continued into the Weimar period, politics revealed itself as a process that could culminate in civil war. Schmitt did not deny this—on the contrary, he emphasized it as a threat that the sovereign must suppress. It was precisely this recognition that led him to return to Hobbes––as the texts in this dossier make clear––and to develop a critique of the tradition of revolutionary natural law that Korsch defended. By contrast, Korsch insisted against Schmitt that jurists and legal scholars––and especially socialist militants––should return to Grotius’s idea that all law is the law of war and peace. Nowhere, according to Korsch, was this more evident than in the domain of labor law, which sought to regulate the conflicts between capitalists and workers—since the workplace, he argued, is itself a kind of battleground:

Labor law is the law of war and peace for the two great classes that confront each other in contemporary bourgeois society: the ruling bourgeoisie and the proletariat that rises up against its rule. Anyone who tries to overlook, evade, or deny this insight is entirely incapable of explaining why it is necessary precisely here to break so illogically with the usual and long-established system of jurisprudence, tearing the most diverse provisions of bourgeois private law and bourgeois public law—commercial, industrial, administrative law, substantive and procedural law—out of their “natural” systematic context in order to combine them into a special bloc called “labor law.” The lengthy and contrived justifications with which bourgeois jurists have tried, and still try, to resolve this problem—posed by the very concept and designation “labor law”—cannot conceal the fact that no legal scholar would ever have thought to claim conceptual autonomy for labor law were it not for the reality of proletarian class struggles, above all the major economic struggles (Korsch, “The Law of War and Peace in Labour Law”)

This point is essential. Korsch believed that the radical wings of the workers’ movement could use the modern vehicle of labor law to reshape the state in relation to the expanding sphere of what Schmitt had called “society.” This could, of course, only be done through social and political struggles—in the streets and in the workplaces—and hence through direct action. He stressed that progressive labor laws often amounted to little more than the legal recognition of changes already brought about by the struggles themselves. Law, on its own, means little—and this is why Korsch criticized what he described as ‘the legal mind’ for fetishizing the state’s legal structure while ignoring the social and economic realities faced by those who are granted, or for that matter often denied, legal rights. And yet, in a dialectical manner, the fact that the state is compelled to legislate the relation between labor and capital testifies to the actual or potential power of the working class, even in periods of social and political defeat for both the reformist and revolutionary left. Korsch argued that modern

[l]abor law stands opposed to the old, positive, ossified law of the disintegrating bourgeois society and the crumbling bourgeois state—even within this very society and state itself—as the new proletarian law of the working class, just as once in classical natural law from Grotius to Hegel the new bourgeois law of the third estate stood opposed to the rigid positive law of the decaying feudal society. (ibid.)

This, it is essential to understand, did not imply a simple form of reformism. It rested on the idea that the dialectic between society and the state—and thus between labor and capital—had become so explosive that the workers could reshape the political apparatus and establish a new kind of society through a process of socialization. This focus on law, and particularly on revolutionary natural law, formed the basis for Korsch’s conception of socialization, which he discussed in many texts, such as his Arbeitsrecht für Betriebsräte where he argued that “a conflict between the bourgeois-legal and the social-legal conception of the employment relationship has already broken out” The latter, social-legal conception of labor relations, was oriented around a “constitution of labor” that broke with bourgeois law and its defense of the free contract between equals, which concealed a deeper inequality stemming from the workers’ lack of control over the means of production and hence over their lives. A “constitution of labor” can be seen as the quintessence of so-called programmatism––the framework where the proletariat’s struggle for liberation is built upon an affirmation of labor as the basis of its programme. However, the point of Korsch’s social conception of labor law was not to perpetuate the rights of the proletariat but to establish a human community built on the free association of every individual. This “liberal” understanding of socialism helps us explain why he so easily became a critic of the worker’s movement and the socialist states and hence the totalisation of the state.

Already in “The Law of War and Peace in Labor Law,” which rightly has been criticised for defending a romantic notion of revolution as a “holy war”, Korsch hinted at the need for a critique of law as such, since even revolutionary law is born of a force that can easily become tyrannical—as it quickly did in the Soviet Union. He emphasized that the political legitimacy of the working class lay in the universality of its demands, noting that it should “not seek to perpetuate the natural right of its own class, for the realization of which it wages its present struggles, after its victory; rather, it aims to sublate the right [Recht] of the working class itself—together with all classes and class antagonisms.” Korsch’s understanding of law as ultimately grounded in violence—and therefore antagonism and war—resurfaced in his critique of Evgeny Pashukanis, who Trotsky identified as an orthodox Stalinist. This critique revealed Korsch’s ethical commitment to preserving the dignity of every human individual as an individual — something that both state socialism and private capitalism, in his view, failed to do. This is why Korsch’s theories of socialization are related to the discussion of what, since the 1970s, has been called communization, an attempt to rethink the transition out of capitalism that so evidently failed during the twentieth century. Korsch's strategy for socialization was based neither on the affirmation nor the extension of social forms that currently exist. Instead, he sought to show how class struggles point to the need for a communal and associative form of governance over the productive apparatus—a constitution of labor––that ultimately aimed to free individuals as individuals rather than merely as workers or consumers.

From Schmitt’s perspective, this affinity between political utopianism and revolutionary natural law was the true danger posed by the German revolutionary attempts of 1918—1921: they sought to remold the state—and with it, the apparatus of law itself—in the image of society. These and similar revolutionary events at the end of the First World War gave rise to the perceived need for a total state capable of defending the so-called neutral power of law—that is, a, form of law which, in contrast to natural law, refused to regard the world of work as governed by the dialectics of war and peace. Instead, work was seen as a commodity that should be regulated in accordance with the classical liberal right to property and security, and everything that threatened this right to buy and sell labor was a threat to the public order of the state. Rather than seeing struggles over the working day as calling for a new form of law that might sever the relation between human survival and wage labor, Schmitt saw the extension of social and political rights to the unemployed as a threat to the sanctity of the labor contract. Thus Schmitt’s work, especially after the Second World War, can be seen as part of the broader conservative counteroffensive against the rights of individuals and groups to demand remuneration for their existence as members of the state. The welfare state, like liberalism before 1933, was for Schmitt just another step that leads to something far worse: a failed state incapable of defending itself against the hordes of barbarians waiting to take over.

The fact that most states are forced to implement at least some form of welfare system—weakening the dialectic between work and survival—was, for both Korsch and Schmitt, an indication that the expansion of the social sphere implied the need for state regulation. The growth of civil society could, in itself, legitimize the possibility of a world beyond wage labor through a process of socialization, since even liberal and bourgeois society was shaped by—and in turn transformed through—the associative labor relations brought about by modern industrial capitalism. It was often the workers’ and women’s movements, as well as movements of national minorities, that mobilized to secure legal and political rights for all. At the same time, however, the inability of the post war welfare state to resolve the social question reveals the inherent contradiction at the heart of attempts to mitigate the consequences of class society. Korsch insisted that capitalism was forced to reproduce the necessary labor of the working class and in doing so could easily domesticate and recuperate even revolutionary instruments such as the commune, the council, and the communist party, transforming them into forces that merely push capitalism to evolve. Schmitt’s insistence on the need of the total state can likewise be understood as an attempt to mobilize the power of the working class into a vehicle to stabilize the domestic economy. Without the revolutionary confrontations at the end of WW1, there may have been no need for a counter-revolution or what Schmitt— in one of the texts translated in this dossier—referred to as “total mobilization.” If Schmitt argued that class war legitimized a form of fascism as a means of safeguarding the right to security and property, Korsch, by contrast, insisted that it was the modern state’s inability to resolve the social conflicts generated by capitalism that transformed it into a totalitarian force prone to war and violence. It was the leviathan that threatened to turn the social sphere into a domain of open warfare and the fact that Russian and German workers had ended the First World War through strikes and mutiny made him hope that the proletariat could be organised as a force for peace and social rights.

Korsch therefore rightly emphasized in his review of Der Hüter der Verfassung that “[i]t is no coincidence that the real history of the legal problem of the ‘guardian of the constitution’ begins with those Lacedaemonian ephors whose task,” according to the account by Busolt-Swoboda quoted by Schmitt, consisted “above all in securing the existing order against a rebellion of the oppressed Helots.” Ephor— Greek for “overseer”—was the term for the magistrates in ancient Sparta that ruled even over the Spartan kings, acting as overseers of the state, laws, and ultimately the slaves and the plebs that threatened to revolt. In 1933, Schmitt wagered that the Führer, Adolf Hitler, could serve as such a demonic ephor who could reestablish the state as a mechanism for defending against the tumultuous radicalization of the social forces that capitalism had unleashed. This, it seemed, was the only way for the German state to survive the onslaught from both reformist and revolutionary socialism and rebuild itself after the defeat of 1918. The socialist tendencies that had marked the Weimar State— born from the council movements’ failure to overcome capitalist democracy—could, Schmitt believed, be extinguished by the total state through which a draconian work regime increasingly built on compulsory labor and the fixation on a healthy national body would take hold.

Korsch made his own position clear in a 1929 article in Die Aktion, where he argued that neither the Paris Commune of 1871 nor the Russian Revolution in 1917 had solved the fundamental social problems that Schmitt had hoped the total state could contain by mobilizing, shaping, and suppressing the different social movements that had emerged. Korsch wrote that the “essential final goal of proletarian class struggle is not any one state, however ‘democratic,’ ‘communal,’ or even ‘council-like,’ but is rather the classless and stateless Communist society whose comprehensive form is not any longer some kind of political power but is ‘that association in which the free development of every person is the condition for the free development of all.’.” Korsch saw the growth of society not so much as a threat to the state but as a potential basis for an association grounded in the free development of each individual––as a physical, natural and singular organism––against the abstractions of the state, council, and even the commune. He sought something like the law of the free development of every singular human being. In this sense one could argue that Korsch defended the right of the individual to be free from the capitalist market into which the socialist state had been absorbed—and which both the council and the commune had failed to overcome. The solution, he argued, couldn’t lie in the state––no matter how democratic, communal, or even councilist––but had to emerge from the associative tendencies that, in his view, already permeated the social sphere.

Thus the Hobbesian mechanism—the leviathan—which Schmitt regarded as essential for maintaining peace and public order, was seen by Korsch as the very instrument that needed to be overcome—and that could be overcome—precisely by the social forces that Schmitt believed threatened the sovereignty of the state itself. This is a crucial point, consistent with Korsch’s earlier defense of natural law—a theme that runs through his writings on socialization and communism. Korsch comes close to insisting that the goal of the working class was precisely to advance the growth of society, understood as the sphere of singular beings who could freely join—and just as freely leave—various movements and associations, until the state itself was no longer necessary. But how was this to be achieved? Let us postpone that question. What matters here is that Korsch and Schmitt both recognized that they were entering an era that could be described as the eclipse of the state through the expansion of the social sphere. On the one hand, because of the fluctuations of the global market—exemplified, for instance, by the growth of multinational firms—which increasingly determined national policies and undermined the sovereignty of the nation-state. On the other, because of the proliferation of social movements, and even more fundamentally, the intensification of affections which structured the state from below. Schmitt regarded these powers as dangerous, a source of anarchy. Korsch, by contrast, believed—as we have seen—that this heterogeneous sphere could serve as the basis for a new world beyond the state, one grounded in what Karl Marx and Friedrich Engels had called “the association in which the free development of every person is the condition for the free development of all.” This was the revolutionary individualism that led Korsch to argue that only by moving beyond capitalism could the world be saved from the increasing totalization of the state—a development that he, like Schmitt, believed was radically reshaping the liberal and democratic West.

Korsch’s vision of the classless society as an association of individuals was therefore not a defense of homogeneity—on the contrary, it was a defense of pluralism. Korsch argues that the concept of law need not be identified with the state, and certainly not with the nation-state. The idea of law can emerge from the need for regulation and association within the social sphere—against the state and its police. At a minimum, a state is a territory governed through the use of police power. A nation-state is such a territory populated by a people that shares a national culture and often a language, and it was this cultural and social homogeneity—what Schmitt in several of his texts called a race—that the total state sought to mobilize against the forces of differentiation, including those that would transform the state into an association grounded in the free development and flourishing of the individual. Such homogenization is best exemplified in Hitler’s vision of Gleichschaltung, which imposed ideological and institutional uniformity across society by eliminating independent organizations, dissent, and pluralism in favor of total alignment with Nazi doctrine.

For both Schmitt and Korsch, the sphere of society was therefore not a domain of unanimity or uniformity. It was a sphere of differentiation, and thereby of heterogeneous and tumultuous individuality governed by the anarchic demands, needs, and visions of concrete persons. These demands often clashed with the imperatives of the capitalist market, which the state sought to defend by protecting the rights to security and property. This is why, for Schmitt, the attempt to ground the state on the free development of the individual could only lead to anarchy and chaos—and why he ultimately acknowledged that the total state was a political failure. From the nationalist perspective—whether left or right—the social sphere is seen as a domain of atomized individuals who must be molded into a unified people. This requires the domestication of any group that threatens the cohesion of the nation. Schmitt believed, in 1931, that this was the shared task of every modern state shaped by the capitalist market, since each such state needed to administer what Korsch described as the monopolization and oligopolization characteristic of modern state capitalism. The total state was therefore the political form of state capitalism—one that was becoming increasingly paranoid about social plurality, and thus anti-liberal and totalitarian.

Ernst Fraenkel, in his classic 1941 study of Nazi law, The Dual State: A Contribution to the Theory of Dictatorship, noted that the Reichstag Fire Decree of 28 February 1933, was used against any group that was perceived as a threat to public order and could therefore be deemed “anti-social.” Fraenkel description is worth quoting, since it not only illuminates the logic of the total state, but also exposes the totalitarian paranoia that continues to shape our world:

To justify its application to churches, sects, anti-vaccinationists, and Boy Scouts, the Prussian Supreme Court (Kammergericht) developed the theory of the ‘indirect Communist danger.’ On December 8, 1935, the criminal division of the Prussian Supreme Court overturned a previous ruling by the Municipal Court of Hagen (Westfalen) and acquitted several defendants who were members of a Catholic youth organization. These individuals had participated in hiking trips and athletic contests. The complaint against them alleged that such activities violated an ordinance issued by the District President (Regierungspräsident), which was itself based on the Decree of February 28, 1933.

Fraenkel’s opposition to this was a matter of principle. He was a Jewish liberal socialist—not an anti-vaccinationist, Christian church member, or Boy Scout—but he understood, like Korsch, that it was in the interest of the working class to minimize the sovereign power of the state and reshape it in the image of the forces that made up society. This was especially important in times of social crises, political stagnation, and revolt—conditions under which mass movements could easily be pushed in reactionary directions.

This defense of what might be called revolutionary liberalism or pluralism was the antithesis to the strategy of the total state—whether Fascist in Italy, Communist in Russia, or later, Nazi in Germany. The total state sought to mobilize the people as a uniform, integrated part of the national whole. According to Fraenkel, the primary problem with the 1933 decree was that it was extended into a law targeting any form of so-called anti-social behaviour, and eventually anything that could be construed as a threat to the “racial demography” of the nation. Schmitt, by contrast, fully endorsed the expansion of the Reichstag decree to encompass every social force that threatened the unity and sovereignty of the nation. Fraenkel noted crucially in The Dual State:

It is not surprising that the theory of the indirect war on Communism has been used as the basis for a prohibition of the anti-vaccinationists, as was expressly recognized by a decision of the Reichsgericht of August 6, 1936. Here again, there is a historical parallel mentioned by Carl Schmitt in his discussion of Wallenstein’s legal position: ‘The right of expropriation is allowed only against rebels and enemies. But in every revolution it has been the rule to brand political opponents as enemies of the fatherland and so to justify completely depriving them of legal protection and property.’ The courts have since adopted this theory with little hesitation.

Schmitt’s reference here is essential. For if Korsch returned to Hugo Grotius to argue that the workers’ movement was grounded in what we might describe as a relativization of the difference between peace and war, Schmitt returned to another figure shaped by the Thirty Years’ War: Albrecht von Wallenstein. Wallenstein, one of the most significant military leaders of the Holy Roman Empire, “realized,” Fraenkel writes, in 1633—three hundred years before the 1933 decree— “that martial law was a particularly useful instrument for the suspension and also for the abolition of the existing legal order. Carl Schmitt, not without approbation, quotes the following passage of a letter of Wallenstein: ‘hope with all my heart that the gentry will be difficult, since this would cause them the loss of all their privileges.’ As early as 1921 Carl Schmitt pointed out the parallel between the privileges of the gentry and the Bill of Rights enjoyed by citizens living under the civil Rule of Law.”

We must remember that the mechanism of public order Schmitt defended, and which Korsch sought to move beyond, was the secular modern nation-state that had emerged alongside the capitalist market at the end of the religious wars that shaped Grotius and Wallenstein. Schmitt used Wallenstein to argue that the state, as guarantor of public order, could accept no social force that threatened the peace of the nation, whereas Korsch, drawing on Grotius, argued that the worker’s movement could ground the legitimacy of its demands in the tradition of natural law, and thus an ethics that affirmed the right of the oppressed and exploited to disobey and rebel against the state. This was related to Korsch’s insistence on what he called geistige Aktion––spiritual action––in his book Marxism and philosophy from 1923: the need for all who are forced to sell their work in order to survive to become conscious of how their lack of associate power over their lives entails a critique of the totalisation of the state which according to Schmitt shaped both Western capitalism and Soviet communism.

Today, just as in the period after the First World War, we know that not only are workers resisting unjust conditions, but many of those who fail to comply with the increasingly narrow consensus— especially regarding Israel, military rearmament and war—are increasingly seen as a threat to the so-called West. This is not to imply that every social force in motion is progressive or points to free association. Yet Fraenkel understood that the growth of the total state was grounded in a deep paranoia and fear of the masses. He called it the dual state [Doppelstaat], that is, a state which on the hand functions as a normative state [Normenstaat] governed by objectivity and legal certainty for those not deemed a threat to national unity, and on the other hand as a prerogative state [Maßnahmestaat] marked by arbitrariness and unchecked force for everyone else. Fraenkel defended what conservatives and others would label anti-social and non-conformist behavior, and it is telling that both he and Korsch thought a new form of natural law could legitimize the right to rebel against the total state. Schmitt, by contrast, was categorically opposed to the idea of a revolutionary natural law, since he understood it to be a product of the evolution of radical liberalism and socialism after the French and Haitian revolutions, which had shattered the unity of the state. For him, no natural right exists that cannot be relativized by the power of the sovereign in a state of exception. Even the right to security and property can be abolished by the sovereign in the name of public order.

The attempt to fuse the divergent parts of society into a unified whole was, as we have seen, the essence of the total state—and the question remains whether the total state truly disappeared after 1945, or whether it mutated to become the basis for the evolution of what Korsch described as “state capitalism.” In his 1940 text “The Fascist Counter-revolution,” he wrote that in “the present war the victory of either party will result in a further gigantic step toward the fascization of Europe, if not of the whole European, American, Asiatic world of tomorrow.” He even began to develop a critique of society and wrote in a tragic mood that:

There is no essential difference between the way the New York Times and the Nazi press publish daily ‘all the news that’s fit to print’ – under existing conditions of privilege and coercion and hypocrisy. There is no difference in principle between the eighty-odd voices of capitalist mammoth corporations – which, over the American radio, recommend to legions of silent listeners the use of Ex-Lax, Camels, and neighbourhood groceries, along with music, war, baseball and domestic news, and dramatic sketches – and one suave voice of Mr. Goebbels who recommends armaments, race-purity, and worship of the Fuehrer. He too is quite willing to let them have music along with it – plenty of music, sporting news, and all the unpolitical stuff they can take.

This cultural transformation of the civil sphere, once populated by strong worker’s movements and not only atomized workers, makes it important to ask whether Korsch was right in arguing that the mobilization of the working class into the state would inevitably entail the mobilization of class struggle. As he wrote in 1940, “[t]otal mobilization of the productive forces presupposes total mobilization of that greatest productive force which is the revolutionary working class itself.” This was the hope of the revolutionary Korsch—something the conservative Schmitt could never believe in, but which he nevertheless feared. For it was the potential for new revolts that led Schmitt to claim that National Socialism could save the state from inner and outer disintegration. Yet even Schmitt ultimately admitted that National Socialism failed to preserve the state in the form he valued—the Hobbesian mechanism of peace and sovereignty. The suicidal path of the German Nazi state—driven, in no small part, by its fear of another 1918 and thus, paradoxically, by the latent power of the working class—and, even more so, the expansion of the welfare state after World War II, revealed that the Hobbesian neutral state no longer existed. The state had to respond to the demands of the populace, and was reshaped by the pressures of the social sphere—so much so that we may now be living through a process of potential association of labor, where the state is no longer ruled by a sovereign but by society itself—and thus, possibly, by the free development of the individual. But the actuality of this abstract possibility depends entirely on whether the capitalist state and the market economy are factually not only potentially overcome by what Schmitt and Korsch called revolution, a process which for the latter increasingly entailed a critique not only of class but of “music, sporting news, and all the unpolitical stuff” of modern capitalist society. Schmitt, on the other hand, could be said to hope that such panem et circenses helped to perpetuate the declining state. Yet he lamented the expansion of the welfare state after 1945 and seemingly implied that the demands of the modern consumer society would rip his cherished state apart.

When Korsch, late in life after the Second World War, wrote in his enigmatic “Ten Theses on Marx,” that “all attempts to re-establish the Marxist doctrine as a whole in its original function as a theory of the working class’s social revolution are reactionary utopias,” he was not rejecting Marx and Engels’s method of interpreting history through the contradictions of class. Rather, he was offering a critical account of how Marxism had shifted—from a tool for working-class emancipation (and thus for the individual as a free being, rather than a mere part of the social whole) to an ideology of the total state—or, in today’s world, an academic relic that masks its fear of political dissent behind the language of the old worker’s movement. This is why, in the same text, he insisted:

Marx is today only one among the numerous precursors, founders and developers of the socialist movement of the working class. No less important are the so-called Utopian Socialists from Thomas More to the present. No less important are the great rivals of Marx, such as Blanqui, and his sworn enemies, such as Proudhon and Bakunin. No less important, in the final result, are the more recent developments such as German revisionism, French syndicalism, and Russian Bolshevism.

These figures were the ones to which Schmitt often returned in his work. From his perspective, they were the ideological agents of the polarization of the social sphere into a domain of competing political visions that threatened to fragment the modern nation-state.

Much of today’s left—even its most radical forms, is in a state of panic over this fragmentation, which might not be irrational considering that we live in a dangerous world prone to war. But it is important that progressives do not let themselves be driven by the sad passions and fears that shaped Schmitt’s thought. Korsch, who allegedly refused to bear arms even in the middle of the Great War, seemingly harbored no such fear and argued as we saw that even “[t]otal mobilization of the productive forces presupposes total mobilization of that greatest productive force which is the revolutionary working class itself.” For the world of “music, sporting news, and all the unpolitical stuff” is still governed by the contradictions between labor and capital that point beyond capitalism. Korsch insisted in 1934 that “the non-economic spheres of political superstructure and general ideology of modern society” are full of “rifts and assures, the strained splitting points which reveal to the revolutionary proletariat those crucial places in the social structure where its own practical activity can be most effectively applied. In our day everything appears to be pregnant with its opposite.” If we follow this argument, it is only through the social and economic differentiation that Schmitt so feared––a differentiation that, according to Korsch, would also dissolve the worker’s movement and hence the ultra-left––that new political forces might emerge: forces rooted in the free development of individuality.

It is striking that Korsch’s thesis that socialization could lay the basis not for a state but for what he called a communist society––a free association aimed at the free development of individuals––can in a sense be said to converge with Schmitt’s position on the expansion of the social sphere. For even though Schmitt believed the state must dominate society, he also came to believe that the pluralism of modern society would ultimately destroy the state. This is why the total state failed—and why it turned nihilistic and suicidal and became a subject in what both he and Korsch described as a planetary civil war.

As Korsch wrote, “[t]here is no longer a need for the revolutionary workers of 1941 to bring about by their own consistent effort that ‘transformation of the capitalist war into a civil war’ that was described as the ultimate aim of the working class by the most daring revolutionary slogan of 1914. The present war from its very outset (or even from its preparatory phases, the phase of the protests against Japanese aggression in Manchuria, the sanctions against the Italian conquest of Ethiopia, the ‘non-intervention’ in Spain) has been a veritable civil war on both a European and a world-wide scale.” In a world of civil war, the state loses its political and civil task of protecting its citizens.

This focus on the eclipse of the state is why the two legal scholars—one revolutionary, the other counter-revolutionary—remain strangely contemporary. It may seem as though only Schmitt left a lasting impact, having shaped the intellectual evolution of German and European political thought, whereas Korsch appears to have been forgotten—read today only in small circles on the left and even jealously guarded by the few who think they represent his true legacy. In the end Korsch accepted that all his attempts to change society had failed, but he never abandoned the conviction that it was both right and, in a sense, natural to live a life devoted to lost causes—for such a life was a dignified one. And human dignity––as Ernst Bloch would insist in his own 1961 defense of natural law—always retains the potential to explode.

Korsch left Germany in 1933 shortly after the Reichstag fire, eventually ending up in the United States, where he wrote to his friend Berthold Brecht in 1947:

A world-wide hegemony of the Yankees would be not only the worst thing I could imagine for this world, but, beyond that, merely a reactionary utopia. ‘Imperialism’ has to be learned, and for a long time, the Americans, in contrast to the Britons, would only bumble around with this task, and the rest of the world would have to suffer, not only from American imperialism, but also from the deficient development of this imperialism.

Today, when Donald Trump is waging a battle against the courts, signing executive orders that seek to give him the right to revoke citizenship rights for nearly anyone born on US territory, and where—at least up until the present moment—he appears compelled to continue supporting the wars in Palestine and armament of Ukraine as meticulously as Biden, we seem still to be living in this deficient form imperialism.

According to Korsch, the end of the Second World War did not mark the beginning of a period of progress, but rather the onset of stagnation—something increasingly evident to many contemporary commentators. Again he wrote to Brecht:

it has become quite clear to me that on the world-wide scale we are in an era of regression. The retrogression in intellectual and cultural matters can be traced almost from day to day. It is also useless to point to the continuing ‘progress’ of technology. On the contrary, the intellectual decline will reach an extent in the foreseeable future which will bring even the progress of technology to a halt––and even now the already threadbare foundations for nearly equating the progress with that of material production are disappearing more and more.

Korsch even told Brecht that we have entered the end of history—an idea that he discussed in an essay from 1942, where he insisted that “just as we can imagine a future structure of society in which not only the theory of the state, but even the state itself will have dropped out of existence without having been replaced by another state, we can imagine a time when there will be no history.” According to Korsch, something similar might have occurred among the Egyptians and other Eastern civilizations when they transitioned from an era of dynamism and growth into one of stagnation. He noted that in this later phase, the ruling classes of these civilizations sought—often with limited success—to shield their societies from collapse by constructing universal states, and this, in a sense, is what was attempted during the era of total states.

Drawing critically on the theories of Oswald Spengler and Arnold J. Toynbee, Korsch argued that this kind of transformation was not limited to the ancient world. In fact, he came close to claiming that it represents an inevitable stage in the life of every civilization. According to him, the U.S. victory in 1945 signaled the beginning of just such a historical phase—one defined by “music, sporting news, and all the unpolitical stuff,” but devoid of real historical movement. Are we perhaps living in the nihilistic world of stagnation that Korsch foresaw—where the Schmittian demand for social homogeneity and public order is no longer exclusive to the political right, but increasingly viewed, even by parts of the political left, as the only way forward? This was the sense many felt during the pandemic, and the demand for social conformity has grown even more aggressive in the current era of war. In this context, the lessons of the Thirty Years’ War took on a different guise. For at the end of his life Korsch seemingly came close to arguing that civil war could no longer generate revolution. He never abandoned the idea of the natural right of the individual to association and self-development, and in this sense, he never gave up on the right of the rebellious to disobey the state—even at the risk of unleashing what Schmitt saw as the gravest danger: civil war. And yet, Korsch noted in a crucial essay from 1941 that even if it appears we have returned to the conditions of the Thirty Years’ War (and thus that we might do well to study Grotius and Wallenstein),

closer investigation reveals this apparent revival of the intimate relationship between war and revolution to be a matter of appearance rather than of real historical significance. What has actually happened is much better described by the paradoxical formula that in the present epoch not only war, but even ‘civil war,’ has lost its former revolutionary character. Civil War and Revolution are no longer synonymous terms.

Just as Korsch had concluded that the commune, the council, and the party could no longer—at least on their own—serve as mechanisms of revolution, he now argued that even civil war had become a trap. These former vehicles of working-class power may still function as mechanisms of defense and as elements within the disintegration and decay that can give rise to revolution, but they are no longer sufficient in themselves to bring about revolutionary change. For the proletariat, according to the late Korsch, no longer possesses the capacity to act as the communist element within the social totality—as the revolutionary party, that, in the civil war, could claim to represent that totality. This revolutionary task, he insisted in his “Ten Theses on Marx Today,” is now a human task, no longer merely a proletarian one:

The determination of the workers over the production of their own lives will not emerge from their stepping into the positions vacated on the international markets and the world market by the self-abolishing so-called free competition of the monopolistic owners of the means of production. It can only emerge from the planned intervention of all those classes currently excluded from it into a form of production that is already, in all respects, tending toward monopolistic and planned regulation. (Korsch, “Ten Theses on Marx Today,” translation modified)

The disaggregation of the social whole—that is, of the state and market—remains the only exit from capitalism, not only for those who place their hopes in revolution, but also for those like Korsch, who understood that the rights to security and property, in the capitalist and liberal sense, have become anarchic forces pushing society towards war, even civil war. Yet revolution no longer emerges from civil war. Rather, revolution is the capacity to stop war in the midst of a social crisis, to interrupt the escalating cycle of violence, and thereby dismantle the system of increasingly anarchic and warring nation-states that, according to both Schmitt and Korsch, have entered their historical eclipse precisely because it has become increasingly difficult to distinguish between peace and war. It is not what Korsch called holy war in the 1920s but the peace and justice that Grotius sought which is the rational kernel of his philosophy of law. For, Korsch argued in the midst of the Second World War in one of his most important texts, “[w]hatever the outcome of the present ‘total’ war will mean for the rival factions of the international ruling class, it is clear that for the workers the assumedly "revolutionary" war is only another and further-enhanced form of their normal condition of oppression and exploitation.” For “the struggle for the new order of society does not take place on the battlefields of the capitalist war. The decisive action of the workers begins where the capitalist war ends.” Thus just as Schmitt argued in 1936 that the goal of politics was peace, and thereby to end war, Korsch also insisted that the real problem for those who are critical of capitalism was not to escalate antagonism, but to move beyond a world characterized by class contradictions that easily turn to nationalist frenzy and open war. The proletariat is not the executioner of capitalism, this world that destroys itself, it is the grave digger: the majority of people forced to sell their labour who want to survive its seemingly never ending decline.

Schmitt, too, felt estranged from the post-1945 world—marked by the Pax Americana and the Cold War. He described it as the age of the airport in which the US and the Soviet Union divided the globe in two, each claiming to embody the forces of civilization that had rescued humanity from the menace of National Socialism. Korsch did not argue, like Amadeo Bordiga, that the Soviet Union would prove a weaker adversary for the revolution than the United States, but he did imply in the letter to Brecht that the defeat of the Yankees was the more desirable outcome for the world as such.

Today we continue to live in an Americanized world—one in which the United States is increasingly weakened by economic stagnation and the rise of China, which itself will likely enter its own phase of decline. These two powers, together with states such as Russia, are now clashing in new hybrid wars, generating a world of total mobilization in which the line between peace and war is once again blurred. The militarization of public health during the pandemic––with its widespread suspicion of all non-compliant individuals––and the subsequent militarization of European economies are two examples of this tendency. The hatred directed at anyone who challenges the political consensus on these and related matters reflects a conformism that Schmitt would likely have endorsed.

Korsch’s theory of the relative distinction between peace and war is therefore not only essential for the rethinking of labor law—it is also crucial to understand the drift toward a new global war and to defend the right to dissent for all who no longer wish to be part of what he saw as a dying and decaying order. Even if the Second World War made Korsch understand that civil war no longer could be a mechanism for a “constitution of labor” based on social rather than only political rights, he still argued that war was “omnipresent” as he had written in “The Law of War and Peace in Labor Law”. Thus, it is not implausible to interpret Korsch as suggesting that the end of history—and the eclipse of the state—still demands the revival of revolutionary natural law: the right of every human being to flee the inferno of war and abandon the capitalist work-machine that is destroying the planet. The real movement, however weak it might be since it clearly has not been able to stop the unfolding of the present wars that plague the planet, must be found here—and not in “domestic disputes between the various right, center, and left currents” which Korsch already warned against in 1927.

Four years later, in 1931, Korsch had come to the conclusion that “Marxism as an historical phenomenon is a thing of the past. It grew out of the revolutionary class struggles of the first half of the nineteenth century, only to be maintained and re-shaped in the second half of the nineteenth century as the revolutionary ideology of a working class which had not yet regained its revolutionary force.” It became an ideology of the state “analogous to the transformation of revolutionary, anti-statist Christianity into the official religion of the Roman state during the early Middle Ages.” However, Schmitt’s (fearful) account of the growth of the social sphere was still the basis for Korsch’s politics since it revealed why “in a more fundamental historical sense, the theory of proletarian revolution, which will develop anew in the next period of history, will be an historical continuation of Marxism”. For the validity of Marx and Engels for Korsch was their theory of capitalism as a system ripped apart by class contradictions.

A break with capitalism will never arise from moral purity or theoretical consistency but from the conflicts around labor that also rule the world of music and sports. Korsch believed that change will come from ordinary people set in motion by their interests and needs—flawed, impure, but unwilling to accept the world as it is. And such people will inevitably be seen by the Schmitt’s of this world as threats not only to public order, but to the very future of the nation.

Korsch’s focus on the real movement, as it manifests at the eclipse of the state and in the aftermath of the end of history, also raises the question of how a new world might be built—one no longer centered on the increasingly anarchic rights to security and property. His suggestion that this world should instead be grounded in the “association in which the free development of every person is the condition for the free development of all” remains rational—as a rule of life and, more precisely, as a legal principle that stands against the state and its police and that must govern the transition out of capitalism and the system of nation-states built around it.

Korsch argued that the forces that push for such transition must be regulated and structured around the universal right for free association and the dignity of every individual. This ethical and legal principle is also rational as a personal ethos, because it arises from the primal— and ultimately biological—need of every person forced to work for survival: the need to control and govern one’s own life. It is this common and simultaneously individual need that according to Schmitt still has the power to produce what Korsch described as a revolution. And even if that need has failed—and may continue to fail—to manifest itself as a political force capable of governing society as a whole, it nonetheless endures as a concrete force of dissent, increasingly visible beyond the ruins of the workers’ movement.

This is the social force that, even before the seemingly impossible revolution, can begin to create a better world by reshaping the economic, legal, and political apparatuses in line with the desires, needs, and demands of the “barbaric populace” that Schmitt feared. This attempt to build associations between free individuals––and thereby to render the means of production common––can arguably be called communization, if it is governed by the legal principle for association that must and can be directed against the state. Such a process of association of free individuals will inevitably be marked by error and failure, like all attempts to overcome or even weaken the structures of capitalist law and logic. This is why Korsch’s engagement with the question of authority and law remains central to any discussion of the transition out of capitalism. For law is an attempt to correct error.

Yet law is not only of interest for the discussion of the transition out of capitalism; it is also essential in the present—as a force of what Korsch called geistige Aktion: the need for those without reserves to become conscious of their right to rule over their existence. There are many things to criticize in Korsch’s work––his overevaluation of the concept of history, his fetishization of a Marx unburdened by Marxism, and his rejection of any non-normative perspective beyond activism––but he understood that all law, including revolutionary law, both mobilizes and terrifies (and that is why law itself must be criticized). Reforms and revolutions alike are driven by the feeling among the oppressed that they have the right to rebel—and by the fear among the ruling classes that they may lose what they possess—and out of this ever present contradiction arises the alternative between free association on the one hand, and the totalisation of the state on the other.

In this sense, it is obviously Korsch—not Schmitt—who can be said to have lived a righteous and even victorious life, even if Schmitt’s vision of total mobilization appears once again on the rise. Today many in the ruling classes still live, like Schmitt, pathetic lives, in perpetual fear of the moment when the social whole will explode. And while a life shaped by fear—especially fear of losing one’s wealth and privilege—may be livable, it is rarely rational, and even less often dignified. But it is a form of life that all too easily can push the world deeper into militarism, totalitarianism, and war, and will never give us the peace that Schmitt hoped could come from the leviathan.