Sunday, August 22, 2010

Carl Schmitt, Political Theology: Chapter 2, The Problem of Sovereignty

Conventional definition, according to Schmitt, 17: "Sovereignty is the highest, legally independent, underived power."

Schmitt notes a problem with such a definition: in reality, no agent acts with unrestricted, unshared power.

Schmitt's statement of the problem: 18: "The connection of actual power with the legally highest power is the fundamental problem of the concept of sovereignty."

One solution: restrict the analysis of sovereignty to jurisprudence, relegating all issues concerning the actual exercise of power to "sociology." This is the approach of Kelsen and the neo-Kantians. The state is envisioned only as a system of norms, and these norms can only be derived from more basic norms, not from any personal authority. Schmitt concedes that a consistent system of law can be constructed in this fashion, but at the expense of divorcing it from actual laws and norms; this kind of analysis of irrelevant to an analysis of the workings of law and the state. (18-21)

Hugo Krabbe's system makes law rather than the state sovereign. Law is based on men's sense of right. Krabbe uses the term "spiritual" to describe the status of law, which seems to refer to it's basis in ideals rather than particular human authorities. The task of the state is to determine what interests exist and "ascertain" how those interests can be interpreted into law. (21-24)

Association theory, represented by Hugo Preuss, Otto von Gierke, and Kurt Wolzendorff, sees the common life of the people as the primary value. Law is an expression of this common life, and the task of the state is to act as an agent of the people to formalize the law. (24-27)

Schmitt discerns three concepts of form in Weber's sociology of law: as a transcendental presupposition specifying the domain of inquiry, as regularity derived from repeated practice, and as rationalization by professionals aimed at calculability. (27-28)

The theories of Kelsen, Preuss, and Krabbe all require sovereignty to be objective, stripped of any personal authority of command. (29-30) Schmitt argues that personal authority is ineradicable from law. Law can only be realized in a concrete situation, and some authority must decide what the law means in that situation. (30-33) Schmitt claims Hobbes as a precursor in arguing for legal personalism. (33-34)

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