ABSTRACT
In the aftermath of the Second World War, Carl Schmitt wrote an extremely short albeit provocative piece advocating the use of amnesties in the context of Germany’s post-war criminal prosecutions: “Amnesty or the Power of Forgetting” (Schmitt 1995). This apology for amnesties should come as no surprise given his early sympathies with the Nazi regime. The main goal of this chapter is to argue that Schmitt’s defense of amnesties is objectionable and even inconsistent with some strands of his political theory. The chapter moves on two methodological levels. The central one articulates a criticism of Schmittian amnesties, based among other things on what recent literature on transitional justice has to say about coming to terms with the past in post-conflict scenarios. Admittedly, it is an exercise in Schmitt bashing, a quite common and well-established practice in contemporary scholarship (Holmes 1993; Lilla 2001; Manin 2003, among many others), but one that nevertheless has a very strong counterpart in a large number of Anglo-American scholars whose goal is to “recover” and revitalize Schmitt’s political theory (for instance Mouffe 1999). The second level presents a critique, rather than a criticism, of Schmitt’s defense of amnesties. This means that instead of trying to challenge Schmitt based on a set of previously and independently defined values and categories, one is to proceed immanently to Schmitt’s theory, from within his own terms and categories in order to show how they relate to one another, and whether they are mutually consistent (McCormick 1997: 6-7).
