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By William E. Scheuerman

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To provide a balanced picture of Schmitt's views, it is necessary to make an analysis of his ideas about law the focal point of that picture. 2 Furthermore, Schmitt's political and legal theory generates troublesome questions for those of us committed to defending liberalism's most basic protection against arbitrary power, the rule of law. If we are to preserve and strengthen the rule of law, we are intellectually and politically obliged to provide an answer to Schmitt's attack on it. We caricature or ignore Schmitt's ideas at our own risk.

Every application and enforcement of the law is willful in the sense that legal materials allow for virtually any conceivable answer to the question at hand. All cases are hard. The rule of law is a myth insofar as it obscures the fact that legal materials are "empty vessels" into which judges and Page 8 administrators engage in freewheeling forms of political and social judgment unconstrained by the law. Posner and Dworkin simply do not go far enough. The problem is not just that rules are notably incomplete and thus must be supplemented by background methods or principles (in Posner's case, free-market economics; in Dworkin's, liberal political morality).

To provide a balanced picture of Schmitt's views, it is necessary to make an analysis of his ideas about law the focal point of that picture. 2 Furthermore, Schmitt's political and legal theory generates troublesome questions for those of us committed to defending liberalism's most basic protection against arbitrary power, the rule of law. If we are to preserve and strengthen the rule of law, we are intellectually and politically obliged to provide an answer to Schmitt's attack on it. We caricature or ignore Schmitt's ideas at our own risk.

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