Saturday, August 21, 2010

Carl Schmitt, Political Theology: Chapter 1, "Definition of Sovereignty"

Opening sentence, 5: "Sovereign is he who decides on the exception."

Key terms: exception, norm, sovereignty, juristic.

Schmitt insists that extraordinary situations are a better measure of the meaning of sovereignty than ordinary ones, because sovereignty is what he calls a borderline concept.

Schmitt puts the terms exception and norm in opposition. Norm, in his usage, refers to established, written law. He contends that such law cannot be an exhaustive account of legally exercised decision making.

6: "When Robert von Mohl said that the test of whether an emergency exists cannot be a juristic one, he assumed that a decision in the legal sense must be derived entirely from the content of a norm. But this is the question. In the general sense in which Mohl articulated his argument, his notion is only an expression of constitutional liberalism and fails to apprehend the independent meaning of the decision"

Central dispute: are decisions which are made outside the existing rule of law, in order to preserve legal and constitutional order, themselves part of the legal order? Schmitt's argument depends on an affirmative answer.

6-7: "The exception, which is not codified in the existing legal order, can at best be characterized as a case of extreme peril, a danger to the existence of the state, or the like. But it cannot be circumscribed factually and made to conform to a preformed law.
It is precisely the exception that makes relevant the subject of sovereignty, that is the whole question of sovereignty. The precise details of an emergency cannot be anticipated, nor can one spell out what may take place in such a case, especially when it is truly a matter of extreme emergency and of how it is to be eliminated. The precondition as well as the content of jurisdictional competence in such a case must necessarily be unlimited. From the liberal constitutional point of view, there would be no jurisdictional competence at all. The most guidance the constitution can provide is to indicate who can act in such a case. If such action is not subject to controls, if it is not hampered in some way by checks and balances, as is the case in a liberal constitution, then it is clear who the sovereign is. He decides whether there is an extreme emergency as well as what must be done to eliminate it. Although he stands outside the normally valid legal system, he nevertheless belongs to it, for it is he who must decide whether the constitution must be suspended in its entirety."

Schmitt holds that the exception is a fact which recent liberal theorists ("liberal constitutionalists") have tried to wish away. He suggests that only some kind of metaphysical-historical commitment (I'm thinking this means a belief in Whiggish view of progress) would lead one to believe that the exception can be extinguished from governance.

Schmitt claims Bodin as a precursor in this analysis of sovereignty.

8-9: "Bodin asked if the commitments of the prince to the estates or to the people dissolve his sovereignty. He answered by referring to the case in which it becomes necessary to violate such commitments, to change laws or to suspend them entirely according to the requirements of a situation, a time, and a people. If in such cases the prince had to consult a senate or the people before he could act, he wold have to be prepared to let his subjects dispense with him. Bodin considered this an absurdity because, according to him, the estates were not masters over the laws; they in turn would have to permit their prince to dispense with them. Sovereignty would thus become a play between two parties: Sometimes the people and sometimes the prince would rule, and that would be contrary to all reason and law. Because the authority to suspend valid law -- be it in general or in a specific case -- is so much the actual mark of sovereignty, Bodin wanted to derive from this authority all other characteristics (declaring war and making peace, appointing civil servants, right of pardon, civil appeal, and so on)."

Note that Bodin's analysis presupposes that sovereignty is unitary.

Schmitt claims the 17th century natural law theorists in general as precursors, and particularly Samuel von Pufendorf.

The state has certain goals embedded within it, depending on what kind of state it is.

9: "[S]overeignty (and thus the state itself) resides in deciding this controversy, that is, in determining definitively what constitutes public order and security, in determining when they are disturbed, and so on."

Thus the existence of the state presupposes a decision. The decision is prior to the norm.

10: "[E]very legal order is based on a decision, and also the concept of a legal order, which is applied as something self-evident, contains within it the contrast of the two distinct elements of the juristic -- norm and decision. Like every other order, the legal order rests on a decision and not a norm."

I would object that such a decision can exist only in a conceptual and not a historical sense, because no government or state is ever totally formed anew without dependence on existing structures and conventions.

Schmitt contends that the standard used to determine who was sovereign in debates about the old Holy Roman Empire was simply who had the authority to act in cases where no rule had been set down. He points out that Max Seydel's analysis of the sovereignty of the old states within the new German Empire rests on the same assumption: the states were sovereign, according to Seydel, because the Empire was limited by explicit law while the states retained the power to act in extraordinary circumstances.

Schmitt suggests what he means by the exception in two ways. First, the exception is a situation where authority is unlimited. 12: "What characterizes an exception is principally unlimited authority, which means the suspension of the entire existing order. In such a situation it is clear that the state remains, whereas law recedes. Because the exception is different from anarchy and chaos, order in the juristic sense still prevails even if it is not of the ordinary kind."

Schmitt goes on to describe the exception in terms of the decision, which he holds to be in fundamental conflict with the norm. 12-13: "The existence of the state is undoubted proof of its superiority of over the validity of the legal norm. The decision frees itself from all normative ties and becomes in the true sense absolute. The state suspends the law in the exception on the basis of its right of self-preservation, as one would say. The two elements of the concept legal order are then dissolved into independent notions and thereby testify to their conceptual independence. Unlike the normal situation, when the autonomous moment of the decision recedes to a minimum, the norm is destroyed in the exception. The exception remains, nevertheless, accessible to jurisprudence because both elements, the norm as well as the decision, remain within the framework of the juristic." I'm not clear if the its in the first sentence refers to the state itself or to the principle of the decision. I take it that what is at stake in the last sentence is that decisions taken in a state of exception still have legal standing; they are true exercises of sovereignty rather than standing outside of it.

13: "Every general norm demands a normal, everyday frame of life to which it can be factually applied and which is subjected to its regulations. The norm requires a homogeneous medium. This effective normal situation is not a mere 'superficial presupposition' that a jurist can ignore; that situation belongs precisely to its immanent validity. There exists no norm that is applicable to chaos. For a legal order to make sense, a normal situation must exist, and he is sovereign who definitely decides whether this normal situation actually exists."

Conceding the plausibility of this, isn't it also true that no total exception exists? No decision made in a vacuum of institutional legal order could be in any way effective. There is a lot of law below the level of the constitution or even statutory law -- army and police codes and rules about chain of command, quite significantly -- that need to be depended on especially in a state of exception. So the decision itself always requires a residue of the norm to be put into effect. Since, moreover, the cooperation of these institutions is also a matter of decisions made in the chain of command, this also shows that the decision is not unitary. And all this is to say nothing of the place of informal norms about the conduct in politics which do much to determine the actual paths of events in cases where the law is not explicit.

Schmitt continues directly in the next paragraph (still 13): "All law is 'situational law.' The sovereign produces and guarantees the situation in its totality. He has the monopoly over this last decision. Therein resides the essence of the states sovereignty, which must be juristically defined correctly, not as the monopoly to coerce or rule, but as the monopoly to decide. The exception reveals most clearly the essence of the state's authority. The decision parts here from the legal norm, and (to formulate it paradoxically) authority proves that to produce law it need not be based on law."

An interesting question is what authority consists of for Schmitt.

Schmitt insists that the exception actually reveals more and is more interesting than the norm, which just governs the operation of the state in its boring everydayness.

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