This introduction will focus on Schmitt's definition of sovereignty and on how he applied this concept in his efforts to save the Weimar state. As already mentioned, World War I was decisive in forming Schmitt's conception of the state and, hence, of sovereignty. Concerned about the conditions that obtained in the wake of Germany's defeat and the centrifugal forces that pulled at the new republic, Schmitt sought a theoretical construct with which to analyze and combat these challenges. He adopted the view that "all significant concepts of the modern theory of the state are secularized theological concepts.'"2 But he went on to

11. Politische Theologie: Vier Kapitel zur Lehre von der Souveränität first appeared in 1922 (Munich and Leipzig); a second edition, with a new foreword, appeared in 1934. The present translation is based on the 1934 edition. A third-printing based on the second edition appeared in Berlin in 1979. The first three chapters of this work also appeared under the tide "Soziologie des Souveränitätsbegriffes und politische Theologie," in Erinnerungsgabe fiir Max Weber, vol. 2, ed. Melchior Palyi (Munich and Leipzig, 1923), pp. 3-35.

12. For recent discussions of this formulation and some of its implications, see Emst-Wolfgang Böckenforde, "Politische Theorie und politische Theologie," in Der Fürst dieser Welt: Carl Schmitt und die Folgen, Religionstheorie und politische Theologie, vol. 1, ed. Jacob Taubes (Munich and Zurich, 1983), pp. 16-25; and José Maria Beneyto, Politische Theolope als politische Theorie (Berlin, 1983), especially pp. 62-89.

show that even though a concept such as the omnipotent lawgiver could be traced back to that of the omnipotent God, the meaning of the concept had changed profoundly over the centuries.

Whereas the omnipotent lawgiver was still associated with the personal element of rule in the seventeenth and eighteenth centuries, the personal factor had been dissipated by the nineteenth and twentieth centuries. In reaction to monarchical legitimacy, efforts were made to divide political power, to split it up, to set it against itself. This fragmentation occurred under the impact of such ideas as democratic legitimacy; the division of power; the notion that power must be checked by power, which is a central tenet of constitutional liberalism; and the idea that the sovereignty of law should replace the sovereignty of men. Although Schmitt was prepared to accept modem constitutional developments, he was determined to reinstate the personal element in sovereignty and make it indivisible once more.

To him this was essential, not because he harbored a romantic yearning for the past or because he valued contrariness for its own sake, but because he considered the restoration of the personal element vital for the preservation of the modem constitutional state. Convinced that the state is governed by the ever-present possibility of conflict, he held that resolute action was necessary to combat threats, for the state's raison d'etre was to maintain its integrity in order to ensure order and stability.

Given the threat of conflict and the uncertainty and distress this could engender, Schmitt focused his attention on crises in a state's existence. A crisis, according to him, is "more interesting than the rule" because "it confirms not only the rule but also its existence, which derives only from the exception." He was quick to add, nevertheless, that because the exception is "dis-

Introduction tinguishable from a juristic chaos,'' it must be construed as a juristic problem and as such made subject to juristic considerations. It was on this critical issue that he differed from neo-Kantians such as Hans Kelsen who, in endeavoring to construct a legal system that was scientifically airtight, banished the exception. Because Schmitt viewed such endeavors as exercises in futility, he raised a number of questions in order to subject the exception to juristic consideration: Which authority in the state is competent 1 to decide that an exception is at hand? Which is competent to determine the measures to be undertaken in case of an exception to safeguard the political unity? Finally, which authority in the state is competent to conclude that order and stability have been restored?

In answering these questions, Schmitt attempted to challenge those jurists who equated the state with the legal order—who considered the state to be a "system of ascriptions to a last point of ascription and to a last basic norm." How, he asked, can legal ideas be expected to realize themselves? How can an exception be subsumed in such a legal configuration when in reality the details of the exception "cannot be anticipated, nor can one spell out what may take place in such a case." In short, "the exception," said Schmitt, "is that which cannot be subsumed." On the basis of this conclusion Schmitt dismissed liberal constitutional endeavors to regulate the exception as precisely as possible.

In order to make the concept of sovereign power relevant to the modem state, Schmitt felt compelled to liberate the concept not only from the so-called scientific system of norms but also from obfuscations and repressions brought about by liberal constitutional thought and parlance. For Schmitt the sovereign authority not only was bound to the normally valid legal order but

George Schwab also transcended it. As I put it elsewhere, his sovereign slumbers in normal times but suddenly awakens when a normal situation threatens to become an exception.13 The core of this authority is its exclusive possession of the right of, or its monopoly of, political decision making. Thus Schmitt's definition: "Sovereign is he who decides on the exception." In this critical moment sovereign power reveals itself in its purest form.14 Subsumed under Schmitt's definition are, of course, the sovereign's ability to decide "what must be done to eliminate" the exception and the ability to decide whether order and stability have been restored and normality regained—attributes of sovereignty that were explicit in the works of such thinkers as Bodin, Hobbes, and Donoso Cortes, according to Schmitt. The restoration of order and stability was the precondition for the reinstatement of norms. According to Schmitt, "for a legal system to make sense, a normal situation must exist, and he is sovereign who definitely decides whether this normal situation actually exists."

Arguing that the essence of sovereign power precludes it from being subject to law all the time, even in exceptional times, Schmitt maintained that the endeavors of the sovereign can only be understood in the overall context of the legal order within which this authority operates. He accepted the new German order and desired to strengthen it against the centrifugal forces that had developed in the republic; he considered the emergency provision of the Weimar constitution adequate for meeting crises; and as a close examination of his writings of the Weimar period

13. Schwab, The Challenge of the Exception, p. 50.

14. See also Franz Neumann, "Approaches to the Study of Political Power" (1950), in The Democratic and the Authoritarian State: Essays in Political and Legal Theory, 2d printing (Glencoe, IL, 1964), p. 17. There is no question, in Neumann's view, that "the study of... emergency situations will yield valuable hints as to where political power actually resides in 'normal' periods."

will show, he acknowledged the interdependence of the state and the constitution. According to his view, interpreting the provisions of the constitution in a manner that strengthened the state's raison d'être, assuring citizens of order and stability, would enable the constitutional order of the state to function normally.

Was this article helpful?

0 0

Post a comment