Engaging Carl Schmitt’s oeuvre is an extremely challenging process. A legal theorist and constitutional lawyer, Schmitt was considered the “crown jurist” of Nazi Germany. After the fall of the Third Reich, Schmitt was held for some time by the Allies, but no charges were ultimately brought against him for his major role in Hitler’s twisted judicial system. During the post-war period, the man was alternatively unapologetic or in denial about his involvement with the 20th century’s most despicable and dangerous ideology.
In Political Theology (henceforth PT), Schmitt provocatively and famously argues that “sovereign is he who decides on the exception [Soverän ist, wer über den Ausnahmezustand entscheidet].” In other words, it is a true emergency or exception to the status quo of a state which really designates the sovereign, and it is the sovereign who decides whether the emergency is a true exception - and, if so, what steps need to be taken to restore order. Moreover, Schmitt asserts that the sovereign—despite having the power to transcend the constitution’s abstract “limits”—is nevertheless an integral part of the legal order precisely because s/he has the power to suspend the law to secure the state.
Based on these premises, Schmitt goes on to put forth a powerful critique of constitutional liberalism. The liberal constitution’s fundamental drive, Schmitt argues, is to unveil a law so complete that it may provide norms for responding to every possible situation. Schmitt believes that despite this effort, contingencies and contradictions always arise that ultimately undermine this drive and that the exception shows that the state precedes the law because it allows the sovereign to roll back constitutional rights to protect the state against existential threats.
In contradistinction, liberal theory asserts that all is law or, alternatively, that the state and its sovereign merely exist to serve as guardians of the legal process, not to decide on legal questions. (Thomas Paine: “In America, the LAW is king!”) Schmitt refutes this position by referring to the concept of legal form. He argues that the legal form is incapable of translating itself into social reality or consensus without the state and its sovereign: “A point of ascription is not achieved with the aid of the norm; it happens the other way around. A point of ascription first determines what a norm is and what normative rightness is.” It is the very person of the sovereign that transforms an abstract law into a norm by making a decision in the true sense of the term. Schmitt’s vision of “decisionism” and his intellectual affinity with Hobbes is based on this fundamental process.
In The Concept of the Political (henceforth CP), Schmitt offers another one of his (in)famous definitions: all politics is based on a simple distinction between friend and enemy, on a peoples affinity for or enmity against another people. Furthermore, Schmitt characterizes the friend-enemy division to be driven by existential threats to a people’s security, that is, by matters that involve the “life or death” of a nation. For Schmitt, every other category or association (religion, economics, culture, etc.) is social in nature. In order for the category of the political to operate, affinity for the friend and hatred for the enemy must be in play.
Underlying Schmitt’s discourse are the influence of two major sources of inspiration: (1) the realist tradition in political philosophy that reaches all the way back to Machiavelli, includes Hegel-Marx-Lenin, but finds its most systematic expression in the work of Hobbes and (2) conservative Catholic philosophers like Donoso Cortes and de Maistre who viewed dictatorship as the only form of government capable of protecting society against the “sinfulness” of human nature. Schmitt’s intellectual influences may initially seem politically contradictory, but they share a common vision of society as a site of permanent conflict between competing human classes and forces. What Schmitt admires in both sources is their willingness to come terms with the problematic cores of human societies.
In fact, Schmitt, whose own personal politics were deeply reactionary, had a profound respect for the revolutionary left. After all, Marxists and other revolutionaries fully acknowledge their enmity towards the ruling class (”the class enemy”). There is clarity in the opposition between revolution and reaction. There is something compelling about Schmitt’s analysis here that has attracted many thinkers from the new left willing to separate the reactionary content of Schmitt’s thought from its formal structure, which they turn to renew their own lost project.
Liberal thinkers, on the other hand, detest Schmitt - and, as you can imagine, Schmitt is far less generous when approaching liberal politics.
(To be continued…)
3 Comments
April 23, 2008 at 1:05 pm
This was very interesting… a couple of my thoughts:
If law is meaningless (or rather, powerless) in the absence of the State, how should we think about constitutionally empowered sovereigns? Is it paradoxical that they “empower” the same laws that “empower” them? This concept has very confusing implications concerning the nature and extent of sovereign power.
If the sovereign strictly adheres to the limitations proscribed by constitutional law, then her power would not seem to supersede it in the manner Schmitt suggests. If the sovereign were wholly arbitrary in her adherence to the law, this would be evidence of Schmitt’s thesis. But political reality seems to suggest a balance somewhere in between. Schmitt might suggest that this is merely a reflection of the legitimating dynamic between the State and the people; that the law is merely the apparatus by which sovereign voluntarily and judiciously limits herself component to an unrelated political relationship.
I would suggest that the sense in which sovereign power can transcend constitutional limitations could be better explained by what I’ll call “administrative externalities” (made up term). Sovereign exceptionalism is an administrative response to the high transaction costs (especially in terms of time) involved in making decisions within the framework of democratic governments. If this pseudo-exceptionalism is implied by the power-diffuse framework of the constitutional system, I don’t think it necessarily defeats the normative purpose of the law. The idea that emergency powers are better seen as a shortcut than an exception is evidenced by the fact that sovereigns can be retroactively punished for violating constitutional law.
Regardless of this point, I can’t say that Schmitt’s critique of constitutionalism strikes me as particularly compelling… it seems to presuppose that government must manifest a wholly coherent, uncontradicted theory of empowerment in order to be legitimate. The practical complexity of modern states doesn’t lend itself to that kind of philosophical purism.
April 23, 2008 at 3:08 pm
Schmitt’s response to your first challenge would almost form a tautology, which is encapsulated in his formula (”sovereign is he who decides [on the] exception.” ) He would argue that a constitutional state has power precisely to the extent that there is the potential for a sovereign to alter or altogether suspend the law in the case of a true emergency, and that this true emergency - when it occurs - names who the sovereign is.
The sovereign is the person who embodies all of the power - and potential capability for violence - of a state. Thus the the liberal principle that views the constitution/law itself as reigning sovereign over a democracy is hogwash because the law qua symbolic code could not operate were it not for the sovereign whose very person stands for (1) the state’s potential for deciding in the case of an emergency that threatens its very being and (2) its ultimate power to provide disincentives for major social challenges to legal norms in peacetime (e.g. suppressing certain political parties because they advocate for violently overthrowing the state).
I would largely agree with your positive characterization of the “balance” at play in most states at most times. But to clarify Schmitt’s case, I would again highlight that his main interest is the exception, i.e. when social contradictions are so heightened that they overtake the constitution. “In the exception,” he says, “the power of real life breaks through the crust of a mechanism that has become torpid by repetition.”
And this brings me to your last point, the idea that emergency powers are really in place to reduce the cost associate with complex juridico-political decision-making in challenging situations, i.e. they are shortcuts rather than true exceptions. It seems to me however, that the administrative process you describe still bears the mark of the sovereign’s ultimate responsibility to make a decision (”all law is situational law”), albeit mitigated by the fact s/he may be held accountable when the constitution is finally restored. In which case, Schmitt may go along with you and say, “go ahead, punish the Prime Minister (or whatever), she has played her part: at the decisional moment, she emerged as the sovereign in order to protect the state and its laws…”
Some of Schmitt’s contemporary proponents go so far as to argue that as a lawyer in the Weimar Republic concerned with the threat posed to the state by both communist revolt and fascist reaction, he wanted to strengthen article 48 of Weimar constitution which governed emergency powers so as to provide the Republic with the power to act when necessary to avoid both communist and fascism. Of course, he eventually joined the Nazi Party anyway - a choice that speaks volumes about the dangers of his “philosophical purism,” as you put it.
April 24, 2008 at 12:12 am
I appreciate your enlightening response..
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