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)

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.

Sunday, August 15, 2010

Hans Blumenberg, Shipwreck with Spectator: Chapter 6, "Shipbuilding out of the Shipwreck"

This quirky chapter combines investigation of shipwreck metaphors in the rhetoric of science with a favorite Blumenbergian topos, the question of what can be expected from reason. Blumenberg finds a characteristically hopeful but modest answer from the 19th century physiologist Emil du Bois-Reymond, in reference to Darwin's theory of natural selection: it is a plank that keeps us afloat. Here, Blumenberg notes, the actual shipwreck event has been removed from the frame of vision altogether -- it is something that has already happened. In fact, the entire background to the metaphor, the reference to voyages and destinations, has also been so removed. What remains is just survival, though du Bois-Reymond acknowledges that some would take away even that by saying that the plank is but a straw. (73-75).

73-74: "Shipwreck has lost its story setting. What has to be said is that science does not achieve what our wishes and claims had expected of it, but what it does achieve is essentially unsurpassable and suffices to meet the demands of maintaining life."

75: "In the reception histories of metaphors, the more sharply defined and differentiated the imaginitive stock becomes, the sooner the point is reached where there seems to be an extreme inducement to veer around, with the existing model, tn the most decisive way and to try out the unsurpassable procedure of reversing it.
The shipwreck metaphorics seem to have escaped such a reversal, even if the image does seem to be wound backward by considering the shipwrecked man and his efforts to salvage, from what was almost the end of his sea voyage, a Robinson Crusoe-like new beginning of self-preservation."

Paul Lorenzen, in his dispute with the logical positivist Otto Neurath about the difficulties of providing a sound linguistic foundation for thought, resorts to just such a metaphor of shipbuilding from a shipwreck. Neurath had illustrated his position that about the limits of our ability to create language anew by comparing language to a ship on which we are already embarked on an endless voyage, and which can only be repaired as it sails. Lorenzen retorts that the ship had once been built at sea, by our ancestors, from material they found afloat around them. The implication is that it would be possible to jump off the ship and start building anew. Blumenberg remarks that the metaphor actually pulls us a way from such a resolve, however, because of the central position it gives to the security of the already existing ship. (75-78)

78-79: "The demiurgical, Robinson Crusoe longing of the modern age is also present in the handiwork of the constructivist who leaves home and heritage behind in order to found his life on the naked nothingness of the leap overboard. His artificially produced distress at sea does not come about through the frailty of the ship, which is already the end result of a lengthy process of building and rebuilding. But the sea evidently contains material other that what has already been used. Where can it come from, in order to give courage to the ones who are beginning anew? Perhaps from earlier shipwrecks?"

Saturday, August 14, 2010

Hans Blumenberg, Shipwreck with Spectator: Chapter 5, "The Spectator Loses his Position"

Now we take up with the shipwreck-with-spectator metaphor in Schopenhauer. Schopenhauer makes the distancing of reason from the turmoil of life the key to his (all-too-Hegelian, according to Blumenberg) philosophy. The human being is both an agent of will, entangled with the pursuit of life, and a subject capable of detachment from this struggle. Appropriately, as Schopenahuer uses the metaphor in his exposition, the distinction between sufferer and spectator is extinguished; man is both at the same time. (59-61)

The distance of the spectator in Schopenhauer's reception of the metaphor is paradigmatically the distance of memory. Because he thinks that we experience pain directly, while happiness is a product of reflection on the absence of suffering, memory is essential to his conception of happiness. (61-63)

Schopenhauer's subject-spectator is also able to look towards the future and recognize that his demise is inevitable, although it is not quite clear whether this too counts in favor of happiness as a withdrawal into contemplation. (63)

Schopenhauer also describes his dual theory of man with another spectator metaphor, this time drawn from theater -- man as one who is both an actor in a drama and a spectator. Schopenhauer depicts the calm distance of the spectator as ultimately an asset to the man of action -- his ideal man is the Stoic. Of course, if the the role of actor is given up entirely, then there is no more life. Blumenberg notes this conclusion had already been drawn by the Enlightenment, which saw calm reason stripped of the passions not as a preparation for action but as its extinction. (64-66)

Heine's story about Boerne is notable for the justification he gives for remaining an unhelpful spectator while his friend ca,me to political grief -- in preserving himself, he was preserving a cultural heritage acquired from Boerne for the future. "This is the frightful formula of all those who refuse the little humanity of the present in order to fulfill the allegedly greater humanity of the future. So the expression used by the poet who sails past the shipwrecked man is of the most singular and frigid precision: ' I was carrying on board my ship the gods of the future.'" (66-67)

Blumenberg sees the reception of the shipwreck metaphor becoming increasingly detached from its original reference to the relationship between man and nature. During the 19th century, the metaphor becomes almost exclusively used to explore the great dilemma of historical knowledge, the tension between objective detachment and human engagement. Burckhardt, in his lecture "On Good and Bad Fortune in World History," holds that the historian must avoid a focus on fortune or misfortune, personal hope or despair, because these have a merely particular, subjective relationship to events. Nevertheless, he sees history as having the unity of a single dramatic narrative for an ideal spectator unattached to any particular interest - though this ideal of pure narrative knowledge can never actually be realized by the historian. (Here, once again, Blumenberg discovers a thinker in danger of becoming the Hegel he is struggling against.) (67-69)

Burckhardt paradoxical seafaring metaphor for historical knowledge -- the historian is a sailor who would like to see the wave his ship is riding, but he himself is the wave. (69-73)