Schmitt at Nuremberg

Speaker: Professor Scott Shapiro (Yale Law School) and Professor Oona Hathaway (Yale Law School)
Admission: Free

The Yale-UCL Workshop in Legal Philosophy is an annual seminar series alternating between UCL and Yale. It features work in progress presented by UCL and Yale Faculty, as well as speakers from other universities. It is co-convened by Professor Scott Shapiro (Yale Law School) and Professor George Letsas (University College London).

About the lecture

In September 1945, Carl Schmitt, the brilliant political theorist and so-called “Crown Jurist of the Third Reich,” was arrested by the United States Military Government as a war criminal and, in March 1947, sent to Nuremberg’s Palace of Justice for interrogation and possible prosecution.  This paper details how Schmitt’s ideas and complicity with the Nazis led to his arrest and confinement at Nuremberg. 

The story begins twenty years earlier, in 1927, when Schmitt attended a lecture by James T. Shotwell, a professor of history at Columbia University, in which he proposed that states outlaw war.  A month later, Shotwell proposed the same idea to the French Foreign Minister, Aristide Briand, and drafted a version of the treaty, known as the Kellogg-Briand Pact, that was signed a year later in Paris. In the Pact, sixty three nations would “condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.”

The paper goes on to show how an alarmed Schmitt responded to Shotwell’s outlawry proposal in one of the most famous lectures of the 20th Century—“The Concept of the Political.” Schmitt warned that outlawry was a trap and that Germany would sorely regret its decision to join the Pact. He went on to predict that the Kellogg-Briand Pact would change the basic rules that states took for granted—the right of conquest, the duty of neutrality—and that the criminalization of war would follow shortly thereafter.

Schmitt was right: the Pact led directly to Nuremberg.  For Nuremberg was a watershed moment, the point at which war went from being merely illegal to criminal as well.  As Robert Jackson observed in his opening speech of the International Military Tribunal, this was “the first trial in history for crimes against the peace of the world.”

The famous Nuremberg trial, we show, was not primarily about the Holocaust.  Its chief goal was to make good on the Pact’s promise to outlaw war. In fact, the Nazis could be prosecuted for the Holocaust only because the prosecution linked the genocide with the waging of aggressive war. 

Not only was the Nuremberg trial primarily about the Kellogg-Briand Pact, but the paper shows that Schmitt himself secretly authored the celebrated German defense presented during the proceedings.  Schmitt would turn out to have a very personal stake in the argument: for he would himself be interrogated at Nuremberg, accused of violating the very Pact about which he had issued so many warnings.

About the speakers

Professor Scott Shapiro is the Charles F. Southmayd Professor of Law and Professor of Philosophy at Yale Law School. He joined the Yale Law faculty in July 2008 as a professor of law and philosophy. He previously taught law and philosophy at the University of Michigan and before that, was a professor of law at the Benjamin N. Cardozo School of Law. His areas of interest include jurisprudence, international law, constitutional law and theory, criminal law, family law, philosophy of action, and the theory of authority. He is the author of Legality (2011) and editor (with Jules Coleman) of The Oxford Handbook of Jurisprudence and Philosophy of Law (2002). He earned B.A. and Ph.D. degrees in philosophy from Columbia University and a J.D. from Yale Law School, where he was senior editor of The Yale Law Journal.  He and Oona Hathaway are currently working on THE WORST CRIME OF ALL, a history of international law as it has evolved from the 17th century through the present.

Professor Oona Hathaway is the Gerard C. and Bernice Latrobe Smith Professor of International Law at the Yale Law School; a Professor (by courtesy) of the Yale University Department of Political Science, Professor of International Law and Area Studies at the Yale University MacMillan Center and Director  of the Center for Global Legal Challenges at Yale Law School.  She earned her B.A. summa cum laude at Harvard University in 1994 and her J.D. at Yale Law School, where she was Editor-in-Chief of the Yale Law Journal, in 1997. She served as a law clerk for Justice Sandra Day O’Connor and for D.C. Circuit Judge Patricia Wald, held fellowships at Harvard University’s Carr Center for Human Rights Policy and Center for the Ethics and the Professions, served as Associate Professor at Boston University School of Law, as Associate Professor at Yale Law School, and as Professor of Law at U.C. Berkeley. Her current research focuses on the intersection of U.S. constitutional law and international law, the enforcement of domestic and international law, national security law, and the law of war. Her recent articles include “Outcasting: The Enforcement of Domestic and International Law” (Yale Law Journal, with Scott Shapiro); “The Law of Cyber-Attack” (California Law Review, with several co-authors); “Limited War and the Constitution” (Michigan Law Review, with Bruce Ackerman); “Presidential Power over International Law: Restoring the Balance” (Yale Law Journal), and “Treaties’ End: The Past, Present and Future of International Lawmaking in the United States” (Yale Law Journal). Professor Hathaway received the Carnegie Scholars Award in 2004, is a member of the Strategic Planning Committee of the American Society of International Law, the Executive Committee of the MacMillan Center at Yale University, and the Advisory Committee on International Law for the Legal Adviser at the United States Department of State. In 2014-15, she took leave from Yale Law School to serve as Special Counsel to the General Counsel for National Security Law at the U.S. Department of Defense, where she was awarded the Office of the Secretary of Defense Award for Excellence.