Sovereignty and Extraordinary Politics_Carl Schmitt

II Sovereignty and Extraordinary Politics: Carl Schmitt In recent decades, there has been a remarkable explosion of Carl Schmitt scholarship in Western political theory.1 Several reasons may explain the renewed interest in the work of this controversial thinker. For one, the ever-popular critique of liberalism has attracted scholars to Schmitt, persuaded that the antiliberal dimensions of his thought might be helpful in the efforts to advance our understanding of democracy.2 Others have seen reason to revisit Schmitt’s theory of emergency government. The present-day political situation, they explain, calls for a strong and effective executive power, considered as necessary to effectively deal with the economic and security-related risks of the globalized era. In addition, Schmitt’s infamous friend-enemy distinction has become a popular interpretive catchphrase, employed to describe the nature of contemporary global politics. Finally, the interest in advancing political (and democratic) accounts of liberal constitutionalism has prompted a rediscovery of Schmitt’s more philosophical reflections on modern constitutionalism. Regardless of the interests inspiring it, the continually expanding discussion concerning the importance and implications of Schmitt’s work has brought to the forefront the notion of sovereignty. Yet, despite the key significance that this category had for Schmitt’s legal and political theory, no systematic examination of its role in his overall project has been attempted to date. Paradoxically, sovereignty, as a concept, has remained relatively overlooked in the increasingly many engagements with Schmitt’s work. One of the obvious reasons for this neglect may be the fact that Schmitt, nowhere in his writings, developed or even utilized the notion in any systematic manner, with the exception of his treatise on Political Theology. In it, sovereignty is defined as the unpredictable and unlimitable power to suspend the legal order during the so1 See, for example, Ellen Kennedy, Constitutional Failure: Carl Schmitt in Weimar (Durham: Duke University Press, 2004); Ghopal Balakrishnan, The Enemy: An Intellectual Portrait of Carl Schmitt (London: Verso, 2000); William E. Scheuerman, Carl Schmitt: The End of Law (Lanham: Rowman & Littlefield, 1999); David Dyzenhaus (ed.), Law as Politics: Carl Schmitt’s Critique of Liberalism (Durham: Duke University Press, 1998). Most recently, Schmitt has attracted the attention of also those working in international political theory. See Louiza Odysseos and Fabio Petito, eds., The International Political Thought of Carl Schmitt: Terror, Liberal War and the Crisis of Global Order (Abington: Routledge, 2007), William Hooker, Carl Schmitt's International Thought: Order and Orientation (Cambridge: Cambridge University Press, 2009). 2 Chantal Mouffe is one of the more prominent thinkers to have subjected Schmitt’s position and significance in democratic theory to a systematic examination. See Chantal Mouffe, The Return of the Political (London: Verso, 1993), The Challenge of Carl Schmitt (London: Verso, 1999), The Democratic Paradox (London: Verso, 2000). See also Kalyvas, Democracy and the Politics of the Extraordinary, 79–186. 1 called state of exception, and as the power to similarly create new norms having the force of law. Pushing the distinction between substance and procedure to its limits, Schmitt presents sovereignty as the antithesis of constitutionalism and the rule of law, thereby rendering it only more difficult to bring the idea of sovereignty to bear on any of the contemporary concerns as outlined above. Sovereignty, as the concept emerges from Schmitt’s Political Theology, can at best lend itself to the project of re-establishing the absolute autonomy and immanence of the sphere of the political. This it can do through a specific kind of political action: sovereign decision. Sovereign decision, or the original political act defying all legal norms and normative rules and capable of fully acknowledging deep existential conflicts in society and the world, presents itselfn Schmitt’s argument as the only way to restore the substantive political unity and autonomy of the community. This interpretation may indeed be valid in the context of Schmitt’s radical formulation of the theory of sovereignty in Political Theology. However, circumscribing the notion within a substantive model of politics tends to obscure the centrality of legal philosophy in Schmitt’s general agenda. Schmitt’s theory of sovereignty forms an integral part of his complex body of jurisprudential thought. For him, the notion of the sovereign decision captures a decisive moment in the realization of law in the sphere of concrete facticity. In his mature work, Schmitt attempted to demonstrate that the sovereign popular decision even underlies the constitutional system as a whole. The concept of sovereignty thus represents a crucial and indispensable element in his overall account of legal normativity. What Schmitt wanted to show was that any attempt to suppress the moments of sovereign decision in the sphere of constitutional order, by substituting them with the precepts of the liberal rule of law, leads to empty and inefficient formalism that can only undermine the substantive resources of legitimacy inherent in sovereign decisions. According to Schmitt, the legal method of legitimacy-building must always have a substantive content to it, something that the proponents of the liberal rule of law failed to adequately acknowledge and take into account. My discussion of Schmitt’s theory of sovereignty derives from the view that his concept of sovereignty was construed as a core notion of legal theory, intended to provide an alternative to the key categories of liberal jurisprudence. Consequently, any account of Schmitt’s notion of sovereignty must start with his critique of liberalism and parliamentarism and their allegedly flawed conceptions of law. Rather than taking Schmitt’s Political Theology as a starting point in 2 this analysis, I will therefore focus on his other works central in this respect, such as Die Diktatur and the only very recently translated Constitutional Theory. In these works, Schmitt systematically outlines a framework for an alternative theory aimed at demonstrating and overcoming the flaws of liberal constitutionalism, which then takes shape as a theory of constitutional dictatorship and a new theory of democratic constitutionalism.3 The two texts together provide a key to Schmitt’s theory of sovereignty. They present us with two interrelated yet distinct formulations of the theory of sovereignty: one elaborated in the context of the theory of emergency dictatorship during a crisis, the other linked to the notion of sovereign dictatorship and the process of the constitution- making. In Political Theology, sovereignty is conceptualized as the capacity to address a critical situation by suspending or altering the legal order and acting beyond legal authorization, while Constitutional Theory focuses on the supreme power of selfdetermination and the constitution of a new political order. In this chapter, I will suggest that the approach Schmitt resorted to in the latter work promises to ultimately yield a more nuanced and, for the present purposes, more suitable idea of sovereignty. It links sovereignty to the foundations of constitutional democracy and thus makes it possible to understand sovereignty as a core normative principle of such democracy. As a rare exception among twentieth-century normative political theorists, who, for the most part, went on to propose the elimination of this “intrinsically wrong” concept from political theory, Schmitt’s endorsement of the concept of sovereignty represents a culmination of the Hobbesian line of thought.4 What Schmitt attempted to do was to offer a nuanced answer to the question of the ambiguity of the early modern paradigm of sovereignty. This he did by claiming to have reconciled the two key aspects of modern sovereignty, the legal and the political. What ultimately secures Schmitt’s place of prominence in the genealogy of the concept of sovereignty, however, is the fact that he was the first major thinker to attempt to reconfigure the relationship between sovereignty and constitutionalism. No one before him had explicitly acknowledged the necessity of connecting these two notions within the framework of a single coherent theory. Moreover, Schmitt developed his legal theory in close linkage with the theory of democracy. Here I agree with Scheuerman on the centrality of legal thinking in Schmit‘s overall theory, and on his estimate that its importance has been underestimated by many interpreters. See William E. Scheuerman, “Carl Schmitt’s Critique of Liberal Constitutionalism,” The Review of Politics, 58, no. 2 (1996): 299–322. 4 See, among others, Jacques Maritain, “The Concept of Sovereignty,” The American Political Science Review 44, no. 2 (1950): 343–357. Hannah Arendt refused the notion of sovereignty because she took it to represent an unlimited will of the people exercised outside the political realm. Hannah Arend, On Revolution (New York: The Viking Press, 1963), 152–156. 3 3 Indeed, he emerges as the first modern thinker to connect constitutional theory with a theory of democracy. Finally, Schmitt’s theory of sovereignty represents an explicit attempt to address some of the main practical problems facing democratic politics in the twentiethcentury, such as economic and political crises and emergencies. In what follows, I will argue that Schmitt nevertheless ultimately failed to conceptualize the relationship between sovereignty and constitutionalism in an adequately balanced manner, hence also failing in his project to outline a defensible democratic theory. In examining the reasons for this failure, I will, however, develop my argument mindful of the fact that Schmitt’s theory of sovereignty represents not just an ahistorical answer to the theoretical shortcomings of liberal jurisprudence, but also, and to a significant extent, a corollary to his critique of the Weimar Republic. It thus reflects his more concrete proposals about how to resolve the latter’s political crises. It is especially Schmitt’s theory of sovereignty, conceptualized specifically as a theory of emergency presidential dictatorship, that cannot be separated from his political preference for an authoritarian decisionistic alternative to the democratic constitutional order as represented by the Weimar Republic. Appreciation of Schmitt’s work, as Richard Wolin has rightly cautioned, should thus not be allowed to foster the ahistorical illusion that his theoretical positions can be examined in isolation from their socio-historical context of origin and unproblematically applied to contemporary debates. Schmitt’s theories originated within a dramatic political context which Schmitt himself helped to shape, and any attempt to do justice to his provocative intellectual legacy must incorporate into its analytical perspective an awareness of the fact.5 Richard Wolin, “Carl Schmitt, Political Existentialism, and the Total State,” Theory and Society 19, no. 4 (1990): 389–416. 5 4 2. 1. Sovereignty and the Decisionist Critique of Liberal Normativism 2.1.1. Sovereignty and the Dualism of Norm and Decision: Schmitt’s Early Legal Philosophy While the concept of sovereignty lies at the very heart of Schmitt’s legal and political theory, Schmitt never presented us with a clear definition of what he meant by this notion, except in his famous treatise on Political Theology. In this work, sovereignty is described as something inextricably linked to the state of exception, as a normatively undetermined and unlimitable power to suspend and alter the entire constitutional order. Although this radically reconceived notion of sovereignty plays a significant role in Schmitt’s theory of dictatorship and emergency powers, it in itself does not do justice to the broader concept of sovereignty that supports the edifice of his broader legal-political theory. In most general terms, sovereignty, for Schmitt, is a concept that captures the very essence of a legal and political order significantly different from the one presupposed by liberalism and its guiding principle, the rule of law. Schmitt consistently labels the liberal approach to law as “normativism.” In his view, normativism is the tendency to transform political phenomena into a system of neutral, formal, and procedurally determined legal norms. Liberalism relies on such a normativist conception of law, striving to make the formalist and proceduralist notion of the rule of law the utmost expression of the political existence of the state. According to Schmitt, the rule of law, so conceived, can never fully express the existence of the state and authentically mediate what constitutes the sphere of “the political.” Indeed, any attempt to translate political phenomena completely into legal norms, claims Schmitt, has potentially disastrous consequences—the state’s political existence is destroyed along with its resources for effective protection against enemies. Schmitt’s theory is based on the fundamental conviction that political existence is not “normative.” Normativity here is not meant to be understood in any deontological sense, but in the Kelsenian sense implying the transformation into a self-sustaining and self-referential legal order. Schmitt believed that the nature of politics is existential in the true sense of the word: according to him, politics is concerned with the attainment of an utmost degree of political unity required for survival in potentially warlike conflicts. Political unity thus represents the ultimate 5 value in Schmitt’s thought. As Kalyvas has correctly noted, Schmitt’s theory represented an attempt to grapple with the consequences of the transition from the early modern unitary notion of sovereignty associated with the absolute monarch, to the modern fragmented, dispersed, individualized body of the multitude as found in modern mass democracies of the liberal type. Indeed, Schmitt’s legal and political theory of sovereignty can be seen as a attempt to respond to this challenge, intended as it is to restore the unity of the people and the body politic in the age of the pluralization, fragmentation, and neutralization of politics. 6 Schmitt remained convinced of the inability of liberal normativism to provide a basis for the political community, since it was incapable of giving expression to the most fundamental existential elements of political experience. For him, liberal normativism distorted the intrinsic tendency of the political order towards substantive unity and autonomy. While it was true that, to a certain extent, a political entity could find expression in a constitutional order, the substance of “the political” could never be entirely transformed into a legal system. According to Schmitt, political unity and autonomy are rather reconstituted through radical, contingent, and original acts that harbor their own immanent norms—acts that Schmitt calls sovereign decisions. The sovereign decision expressing a “concrete political will”7 is the only act with the capacity to embody and represent the political substance, and thus unite the people politically, especially in crucial existential moments such as during a crisis or a revolution. Therefore, the sovereign decision must of necessity be contingent, arbitrary, undetermined, and original, always bound to a concrete situation and never derived from any preexisting normative order. To be authentic, it has to contain its own immanent norms. As Schmitt famously put it, “[s]overeign decision is the absolute beginning, and the absolute beginning (also in the sense of άρχή) is nothing else than sovereign decision. It stems from normative nothingness and concrete disorder.”8 Schmitt thus conceptualizes sovereignty—expressed ultimately in the autonomous act of the decision—as something that by definition is in a very tense relationship with the legal norm. Sharply contrasting with the general and procedural character of legal norms, the decision is an 6 Kalyvas, Democracy and the Politics of the Extraordinary, 88. See also Schmitt, Political Theology, 48–49. Carl Schmitt, The Concept of the Political (New Jersey: Rutgers University Press, 1976), 10–24. 8 Carl Schmitt, Über die drei Arten des rechtswissenschaftlichen Denkens (Berlin: Duncker & Humblot, 1993), 23– 24. 7 6 unpredictable, concrete will applied to a particular situation.9 It would be misleading, however, to reduce sovereign decision to the sheer force of the command issued by the sovereign person, and juxtapose it to a legal norm as its complete antithesis. It is not the case, namely, that Schmitt’s sovereign political order can exist entirely without a legal order. Schmitt believed that the concrete political will is always the source of the legal norms, hence creating the basis of the legal order as such. Throughout his entire body of work, Schmitt tried to show that such a concrete political will exists prior to the legal order and can never be entirely subsumed by it once the constitution is in place; rather, the two coexist in a tense relationship, with the political will becoming constantly operationalized through the process of legal application. The concrete political will, or sovereign decision, is thus an irreducible constitutive element of any legal order. What liberal theory does is to ignore this reality of the concrete political will, replacing it with the notion of the rule of law. In the process, it loses any capacity that it might have had to account for the phenomenon of sovereignty. What is therefore needed, according to Schmitt, is another theory of law that can incorporate the idea of the sovereign decision into its account of legal normativity. This was then the main aim of Schmitt’s work: to show that liberal jurisprudence over and over again obscures the presence of the sovereign decision within the law, and that this conceptual failure had far-reaching political consequences. Restoring the position of sovereignty in the accounts of legal normativity thus became Schmitt’s main theoretical objective. The fact that Schmitt chose to conceptualize sovereignty within the framework of legal theory is often overlooked, even though, in actuality, he had tried to tackle with the problem of the sovereign decision within the framework of a theory of legal normativity already since his very first works published in 1910s. In fact, young Schmitt, very much like Hans Kelsen, was mainly preoccupied with an attempt to defend the autonomy of the realm of law as the realm of pure ‘ought’ irreducible to causal power relations and empirical facts which could never serve as the basis of legal norms.10 He recognized that law is by definition separate from reality, and that law and power configure two wholly distinct spheres of phenomena. For Schmitt, however, the relationship between normativity and facticity, between the “ought” and the “is,” proved much The stress on “concrete” and actual or “existential” can be found in all of Schmitt’s work. In his early works, Schmitt was concerned with the concrete as the realization of the ideal. Later, he came to stress the concrete in the sense of the necessity for politics to be rooted in the actual and the particular. 10 Carl Schmitt, Der Wert des Staates und die Bedeutung des Einzelnen (Hellerau: Hegner, 1917), 33–38. 9 7 more complex than what the simple claim about the irreducibility of the sphere of law to the sphere of empirical facts would seem to entail. To be sure, Schmitt was opposed to the neo-Kantian tendency to interpret all legal phenomena as mere facts of law separated from the empirical processes of legal application. Any account of the specific nature of legal normativity, Schmitt argued, must in fact begin by recognizing the necessity of applying law to a concrete, factual situation. According to him, mediating between the two realms becomes necessary in the moment of law’s actualization in reality. If norms are to be implemented and made effective, they can never remain in the domain of pure ‘ought’ as an original, abstract norm, as “ideal” law. A legal idea in its pure form can never become reality, if only because it never implies who should apply it. Since the legal idea cannot realize itself, it needs “a particular organization and form before it can be translated into reality.”11 According to Schmitt, this translation takes place all the time, whether in the process in which a general legal norm is transformed into positive law or during the application of a positive general legal norm by the judiciary or the administration. As a result, the norm is transformed from a mere general and abstract legal norm into a concrete norm determined by its concrete purpose and applied in reality to a concrete case. 12 Law is thus inherently marked by an “endogenous dualism” between the idea of a legal norm and the notion of positive law as the concrete instantiation of the ideal law as applied to a concrete case.13 Put simply, for Schmitt all law is “situational law.”14 Schmitt’s repudiation of the purely normativist accounts of law came as an outcome of his examination of actual legal practice as carried out by courts, prompted by his identification of the problem we today call that of legal indeterminacy. Schmitt observed that the relationship between the legal norm and the judicial actor inevitably involved an element of “indifference” vis-à-vis the legal norm, and that this indifference introduced a certain discretionary element to all judicial activity.15 In the moment of indifference brought about by the necessity to determine the content of the norm, Schmitt suggested, the transformation of the “abstract legal idea” occurs through the act of sovereign decision which involves a concrete will. In other words, the decision is not 11 Schmitt, Political Theology, 28. Schmitt, Der Wert des Staates, 52–55. In this work, Schmitt argues that the state represents the instance which realizes law in the realm of factical phenomena. 13 Schmitt, Der Wert des Staates, 76–77. 14 Schmitt, Political Theology, 13. 15 See Schmitt, Der Wert des Staates, 79. See also Carl Schmitt, Gesetz und Urteil. Eine Untersuchung zum Problem der Rechtspraxis (Munich: C.H. Beck, 1968), 48. 12 8 traceable to the original legal norm and remains an independently determining moment. 16 For Schmitt, the element of decision is of particular importance precisely because it is not reducible to any given normative system. Endowed with its own immanent norms, it represents an element of autonomy capable of challenging the empty formalism of the liberal rule of law. These early reflections on legal normativity suggest an alternative path that Schmitt was subsequently to take in presenting his own vision of the realm of law. It was a path that broke radically with what he took to be the core of liberal jurisprudence, namely, its normativistic faith in a closed and formalized legal system and the intimate link between judicial action and corresponding legal norms. According to Schmitt, every judicial act is basically a political act of sovereign decision. The decision is the vital substratum of law, and its interdependence with the norm is an essential aspect of the legal order. Sovereign decision is a pervasive, non-eliminable, and dominant feature of the legal universe, a ubiquitous fact of legal experience. As Schmitt proclaimed, “what matters for the reality of legal life is who decides.”17 Throughout his entire work, Schmitt systematically attempted to undermine the liberal view of the rule of law, proposing an alternative legal theory centered on the notion of the sovereign decision. The initial lesson to be drawn from Schmitt’s early writings is not only that autonomous sovereign decision forms the most fundamental, irreducible element of legal normativity, but also that a functioning legal system allows for the exercise of discretionary forms of political power lacking direct legal authorization. Schmitt stressed the inadequacy of existing legal norms as the basis for judicial decision- making, suggesting that it was instead discretion that formed the unavoidable basis on which all adjudication rested. This emphasis on the autonomous sovereign decision anticipated Schmitt’s later denigration of legal normativism, in terms of both the putative formality of the rules that normativism implied and the assumed normalcy of the situations in which rules are applied.18 In the theory of the state of exception, the discretionary element in the sovereign decision becomes the entirely self-sufficient source of normativity. Schmitt, Der Wert des Staates, 75, 78. Elsewhere, Schmitt argues that “[e]very concrete juristic decision contains a moment of indifference from the perspective of content, because the juristic deduction is not traceable in the last detail to its premises and because the circumstance that requires a decision remains an independently determining moment.” Schmitt, Political Theology, 30. 17 Ibid., 34. 18 See Richard Wolin, “Carl Schmitt: The Conservative Revolutionary Habitus and the Aesthetics of Horror,” Political Theory 20, no. 3 (1992): 431. 16 9 2.1.2. Critique of Liberalism and Parliamentarism and the Aporia of Constitutional Democracy During the first phase of his work, Schmitt focused on debunking the legalist model of judicial action. His main strategy was to highlight the gap that separates the ideal law from its positive version and to show that the realization of a legal norm rests unavoidably on some form of discretionary action which he termed the sovereign decision. As early as in 1917, Schmitt introduced the concept of the sovereign decision as the missing element in modern legal theory. At first, he related sovereignty to the problem of legal indeterminacy which denoted the element of the concrete, autonomous will complementing the norm. This was a will that decided on its own realization in the sphere of concrete facticity—that is, on the application of law in a particular case—and remained undetermined by the very norm it sought to realize. These early reflections on legal normativity Schmitt then put to use in developing his critique of the liberal models of parliamentarism and constitutionalism, the essence of which he took to consist of liberal jurisprudence based on an ill-conceived formalist concept of law blind to the element of autonomous decision making in legal practice.19 Schmitt’s general objections to liberalism were two-fold. His first major criticism had to do with what he considered was liberalism’s hypocritical assumption of the neutrality of the rule of law, and it was directed at the above-discussed “normativism” of liberal law and the in Schmitt’s view naïve belief that neutral and formal procedures can give expression to a concrete political substance of the community and mediate political conflicts. From Schmitt’s perspective, the liberal stress on the neutrality of procedures was inexorably connected to a lack of political commitment and an instrumental approach to politics.20 The second general objection Schmitt put forward was addressed to what he regarded as the illusion of the rule of law. According to Schmitt, the whole idea of the rule of law was based on the understanding that abstract normative principles are preferable to concrete political decisions and substantive political positions, because they can prevent legally legitimate abuse of power. In fact, however, the opposite was true: normative principles as such are Although Schmitt’s antiliberalism may appear as a rich and idiosyncratic mixture of ideas and sources, his identity is clearly legal-theoretical. For an illuminating account of all aspects of Schmitt’s antiliberalism, see Carlo Galli, “Carl Schmitt’s Antiliberalism: Its Theoretical and Historical Sources and its Philosophical and Political Meaning,” Cardozo Law Review 21 (2000): 1597–1617. 20 Schmitt claimed that even though liberals pretended to take a neutral standpoint in religious, ideological, and political conflicts, this was nothing more than hypocrisy behind which liberal bourgeoisie could hide while pursuing its economic interests without openly engaging in political conflicts. Schmitt, Concept of the Political, 68–71. 19 10 inefficient in this respect if they are not interpreted by particular agents and applied to concrete circumstances by these agents. It was this particular perspective built into all sovereign decisions that, for Schmitt, rendered implausible the claim to universal validity that inhered in legal norms. In his later works, Schmitt would then attempt to further show that the entire constitutional order in fact depends on the sovereign political will that establishes it and defends it during a time of crisis.21 Schmitt argued that liberals have always believed themselves to be able to tame the personalistic and discretionary elements of political power, by resorting to a system of norms that subjects every conceivable expression of state authority to some type of rule-based legal regulation. Subordinating political authority to impersonal, codified legal standards had thus become the main political goal of the liberals. According to Schmitt, this was nonetheless based on a misguided view arising from the naïve and dangerous belief that political action can entirely correspond to given legal norms. When laws govern and not men, for Schmitt there is no ruling and no power at all anymore: “Whoever…acts ‘on the basis of law’ or ‘in the name of law’…does nothing other than what a valid norm permits jurisdictionally.”22 That, for Schmitt, amounted to no true politics. Existential politics can only be expressed in discretionary acts of decision; no formalized procedure can mediate these genuine political decisions or ever voice the political will of the people or embody their sovereignty. Not surprisingly, then, the first step in Schmitt’s broader project of the critique of liberalism was to discredit the main source of law in contemporary liberal democracy: its legislative branch. If the futility of the liberal quest for general, neutral, formal, and determinate legal norms were to be proven, the failure of the liberal lawmaker had first to be demonstrated. In consequence, Schmitt directed his critical attention to parliamentarism, the fundamental political institution in the modern conceptions of the rule of law. In developing his critique, Schmitt starts out by describing parliamentarism as the deliberative method of legislation in an assembly. The deliberative principle, born out of the struggle against the secretive politics of absolutist rulers and the accompanying quest for checks and balances, separation of powers, as well as openness and publicity, was intended to guarantee the free competition of ideas. Only from an open and free exchange of ideas could rational truth For a good summary of Schmitt’s antiliberalism, see Heiner Bielefeldt, “Carl Schmitt’s Critique of Liberalism: Systematic Reconstruction and Countercriticism,” Canadian Journal of Law and Jurisprudence 10 (1997): 65–75. 22 Carl Schmitt, Legality and Legitimacy (Durham: Duke University Press, 2004), 3–4. 21 11 arise: this, according to Schmitt, was the ultimate intellectual foundation of parliamentarism. In other words, it was less about the participation of the parliament in the government than about the process of confrontation of differences and opinions from which the rational political will results.23 It was precisely this idea of rationality that made parliamentarism akin to the liberal rule of law. The liberal idea of the rule of law rests on the notion of general, promulgated, and universally binding norms. The universality of these norms is derived from their rationality: law consists of general principles deduced from reason, and hence it is valid universally, without exception and for all times. A universalist conception of law is thus fundamentally distinct from the concept of law as an executive decree issued as a command of the sovereign simply in virtue of his authority and not guided by a reasoned debate.24 To discredit the liberal notion of law, Schmitt therefore focused on demonstrating the decline of discussion as the leading principle of parliamentarism. 25 His critique of parliamentarism relied on a sociological account of the reality of representative assemblies in the 1920s, somewhat akin to the later efforts of the early Frankfurt School theorists and Jürgen Habermas with their theses concerning the decline of the public sphere. What Schmitt offers is an idealized portrayal of nineteenth-century liberal parliamentarism to which a depiction of the dismal reality of contemporary parliamentarism is then juxtaposed. According to Schmitt, the political and social homogeneity that characterized nineteenth-century societies with parliamentary regimes helped to ensure the success of free discussion in them. With the advent of economic liberalism and modern mass democracy, however, political parties ceased to confront one another as equal partners to a discussion taking shape as an exchange of opinions and views; they now more and more started resembling social and economic power groups driven by particular interests and acting based on strategic calculation. Political compromise and the pursuit of self-interest thus increasingly came to form the basis on which economic and political decisions were made, with masses won over through a propaganda apparatus. In the process, any arguments used in justifying one’s position began to take on the character of an empty formality. 23 Carl Schmitt, The Crisis of Parliamentary Democracy (Cambridge, Mass.: MIT Press, 1988), 35. “Legislation is deliberare, executive agere.” Schmitt, The Crisis of Parliamentary Democracy, 45. 25 For Schmitt, the discussion model is fundamentally apolitical because it presupposes a distinction between state and society and envisions the parliamentary state as the reflection of the autonomous self-organization of society. A politically united people, in this model, is turned into fragmented and depoliticized civil society. As the ideal of selforganization materializes in the process of democratization, the parliamen tary principle of integration becomes more and more difficult to attain. The state, deprived of any resources for unity, is threatened with disintegration. For a thorough discussion of Schmitt’s critique of civil society, see Jean L. Cohen & Andrew Arato, Civil Society and Political Theory (Cambridge: MIT Press, 1994), 204–205. 24 12 It was no longer a question of persuading one’s opponent of the truth or justness of an opinion or a position, but rather of winning a majority in order to govern with it. 26 In The Crisis of Parliamentary Democracy, Schmitt, furthermore, went on to postulate the fundamental incompatibility of liberal parliamentarism and democracy. Liberal parliamentarism, according to him, neutralized the vital struggle between politically interested opponents: it transformed this struggle into an insignificant play with political values, as if they were mere aesthetic points of view more suited to an endless, inconsequential, and impotent conversation in which no decisions are ever made.27 Democracy, on the other hand, was capable of sustaining substantive political unity through establishing “the identity of governed and governing.”28 While this substantive political unity could be enhanced by some sort of cultural or ethnic homogeneity, what Schmitt had in mind was primarily the political unity of a community indivisible into the state and society or majority and minority—the very products of parliamentary democracy’s formal procedures. The medium through which this collective substantive political unity is achieved and sustained, however, was not, as already pointed out, the constitutional order, given that liberal law, as Schmitt saw it, remained incapable of embodying a political substance; that unity was, instead, better established by a personal authority acting through the sovereign decision. In fact, the unity could very well also be achieved through dictatorship, enabling dictatorship to be considered as one possible means of achieving true democratic identity. The point with all this, according to Schmitt, was that liberal parliamentarism, with its stress on legislation, could not play any essential role in the establishment of what he considered to be the central feature of democracy: democratic identity. Schmitt points out the contradictory nature of constitutional democracy, in which the liberal component of the rule of law and the political component of democracy show themselves to be incompatible as foundational principles. Traditionally, this contradiction has been couched in terms of an antagonism between popular sovereignty and individual rights, which Schmitt replaced with procedure and substance, or the legal norm and the concrete political decision. This strong antiformalism stressing substance over (the putative neutrality of) procedure pervades the entire corpus of Schmitt’s academic work. Ultimately, however, the irreconcilability of substance and procedure that 26 Schmitt, The Crisis of Parliamentary Democracy, 6–7. See Carl Schmitt, Political Romanticism (Cambridge: MIT Press, 1986). 28 Schmitt, The Crisis of Parliamentary Democracy, 14. 27 13 Schmitt postulates undermines his attempt to categorize the concept of sovereignty within the framework of jurisprudence. In advancing his theory, Schmitt systematically depreciated not just the value of the liberal principle of the rule of law, but also the significance of the normal, ordinary course of political affairs and standard procedures, in whose capacity to channel and mediate political conflicts he showed little trust. Two key elements behind the design of Schmitt’s theory of sovereignty can now be seen becoming evident. First of all, sovereignty, for Schmitt, forms the core concept of a new, nonliberal constitutional theory. Secondly, the utmost expressions of sovereignty are localized in the extraordinary moments outside the normal course of politics, in moments of crisis calling for the suspension of the legal order and in revolutionary breakdowns of the old legal order and the creations of a new one. Despite the initial promise contained in his acknowledgement of the inextricable interconnectedness between the legal and political elements of the concept of sovereignty, Schmitt’s project ultimately failed in its overall aim to make sovereignty relevant in the normal politics of constitutional democracies. Before turning to a discussion of the two quintessential “moments” of sovereignty, a few critical remarks pertinent to my overall argument are in order. Schmitt’s theory as a whole was developed to address what Schmitt saw as the fundamental weakness of the liberal concept of law. Yet, Schmitt failed to show in any convincing manner what the inherent flaws of this concept were, and what was wrong with its normativism. As Scheuerman has noted, while the accusation of normativism may function as an effective rhetorical tool for discrediting the excessive formalism and proceduralism of the liberal rule of law, it does not in itself serve as a solid basis for critiquing it.29 Schmitt only refers to what amounts to little more than a crude version of legal positivism, as represented, in his view, by Kelsen’s pure theory of law, from which he then wants to distinguish his own intellectual perspective. What he presents us with is a simplified reading of liberal normativism, through which lens he then reads the whole tradition of liberalism and the rule of law. As Scheuerman has pointed out, Schmitt’s focus on Kelsen as a case of legal normativism par excellence in part accounts for his own reversal of Kelsen’s juxtaposition of norm and empirical fact, as well as his claim that concrete political will, and not formal procedures, is what provides the basis of legal validity. Ultimately, then, as Scheuerman 29 Scheuerman, “Carl Schmitt’s Critique of Liberal Constitutionalism,” 315. 14 shows, Schmitt thus succeeds in offering little more than an authoritarian complement to Kelsen’s legal positivism.30 To begin with, Schmitt’s critique of the neutrality, formalism, and proceduralism of the liberal rule of law, which he saw as depleting the substantive resources of legitimacy inherent in sovereign decision, is overstated. It distances itself too far from any ethical understanding of law. While no theorist of the rule of law would assume that the element of discretion, and hence rule by persons, can be entirely eliminated from the picture, no critic of the rule of law is likely to deny, either, the definite advantages that rule by formal, general, and proceduralized norms brings—except for Schmitt. Most political theorists adhere to some version of “normativism,” insofar as they wish to subject politics to rules based on an understanding that politics is not supposed to consist in discretionary, arbitrary, and unpredictable exercise of power. By virtue of its form, law per se mitigates arbitrariness, at least to some extent. As Fuller, for instance, has shown, law has an “internal morality” which stems precisely from its being general, applicable equally to all, public, clear, stable, and consistent—and from its being created, applied, and contested in accordance with general, equal, public, clear, and stable legal rules.31 To the degree that there is a rule by laws that satisfies these criteria, then, that rule by law will always generate at least a weak form of the rule of law. Second, while Schmitt’s attack on normativism, as Scheuerman has noted, may give the impression of forming but a starting point in a broader project to discredit the entire tradition of Western political thought, it is hardly the best way to start identifying the specific ills of liberal constitutionalism.32 Moreover, normativism in Schmitt’s understanding does not even capture the essence of liberal constitutionalism. The liberal rule of law is not merely a formal, desubstantialized system of neutral procedures; on the contrary, it has a very clear ethical substance. There are numerous normative interpretations given to the rule of law, most of them 30 According to Schmitt, liberalism has been characterized by normativity since its early days. Early liberals such as Locke, however, promoted the idea of the rule of law while simultaneously acknowledging the need for greater legitimacy for it within a system of natural right. Contemporary liberals, on the other hand, advocate thorough separation between the legal and the moral domains; a paradigmatic example is Kelsen’s pure theory of law, according to which a norm is valid only insofar as it conforms to a higher legal norm. The only thing that today remains from the utopian pathos of the early advocates of liberalism is the agreement that law consists of a structured hierarchy of norms. Schmitt, Constitutional Theory, 63–64. See also Scheuerman, Carl Schmitt, 74–75, 78. 31 Fuller’s criteria in this connection are eight: law is general, applies equally to all, is prospective, public, clear, stable, consistent, feasible, and congruent with official action. Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1969), 39. 32 Scheuerman, “Carl Schmitt’s Critique of Liberal Constitutionalism,” 316. 15 identifying in the rule of law a bulwark of individual freedom. Some accounts show the rule of law to be inherently connected to democracy and human rights. Kantian liberalism, for example, is based on the normative idea of the moral autonomy, dignity, and freedom of action of human beings who are capable of acting rationally and hence freely in a morally responsible manner. The supreme moral rule for human action, or the categorical imperative urging one to “act only according to that maxim by which you can at the same time will that it should become a universal law,”33 enables people to live not only individually in accordance with moral norms, but also together with other people in accordance with universal laws—and hence in a social order that maximizes the simultaneous freedom of all. The categorical imperative and the right to freedom imply the “legislative” creation of moral norms. In the realm of politics, the normative principles of autonomy, dignity, and freedom thus translate into the political principles of equality, participation, collective self-legislation, and the rule of law. An order that can best embody these principles is a republican order in which laws express the united will of all people, and only within this normative framework does the idea of the neutrality and universality of the rule of law make any sense: it secures maximum freedom for all. Schmitt’s critique of normativism may only be viewed as justified when linked to the problem of law’s indeterminacy. Schmitt is right in pointing out that law is rarely clear and that the bearing of a legal norm on a particular situation may require some discretion, if only because the rule of law relies on the rule of the people to uphold it. The prediction that the twentieth century will witness a proliferation of vague legal norms has proved correct. This trend, however, is not a manifestation of a fundamental failure of normativistic liberal thinking. Hence, the solution to it is not a thoroughly antiformalist concept of sovereign decision which displaces the rule of law by the discretionary, situational power decisions whenever the former seems inadequate for grasping particular circumstances of politics. The solution to the purported insufficiency of law to rule by itself is to design a system of political authority that has the capability of creating and applying law in such a way as to enable those to whom the law applies to participate in its creation. In the last section of this chapter I will look at whether Schmitt’s democratic constitutionalism manages to adequately respond to this challenge. 33 Immanuel Kant, Foundation of the Metaphysics of Morals (New York: Macmillan, 1969), 44. 16 2. 2. Sovereignty and Emergency 2.2.1. Liberalism during a Crisis With the outbreak of the political and economic crisis of the Weimar Republic, Schmitt’s view of sovereignty underwent a substantial radicalization. Already in the early 1920s, Schmitt had begun to focus on the role of sovereign decision in the protection of the constitutional order in critical situations. The next conceptual move in Schmitt’s theory consisted in linking sovereignty to dictatorship and emergency powers, and in highlighting a conceptual link between sovereignty and the so-called “state of exception” in which legal order is suspended. Sovereignty, for Schmitt, now became the capacity to suspend and alter the entire legal order. To pursue his new interest, Schmitt first had to expose another blind spot in liberal theory, namely, its inability to address the problem of the emergency. Earlier, Schmitt had accused liberal jurisprudence of failing to recognize the contingency of legal norms and to come to terms with the practical implications of this fact. This weakness became particularly evident, he suggested, in moments of severe crisis in which the features of the rule of law produce political inefficiency and render the constitutional system unable to protect itself. Since liberals overlooked the problem of emergencies and showed disinterest in techniques for dealing with them, banishing them instead altogether from the domain of constitutional theory, they, according to Schmitt, had left the systems they had created vulnerable to breakdowns on the scale of the entire legal and political order. The core of the problem here, again, was, Schmitt claimed, the normativist conception of law that stressed neutral and formal procedures as the main criteria of legal validity. Laws, statutes, and legality in general, to the extent it was reducible to neutral procedures and voting mechanisms indifferent towards the difference between substantive conceptions of justice and injustice, enabled enemies of the constitutional system to gain power legally and then create and apply laws pernicious to it. This is the line of argumentation that Schmitt developed in his Legality and Legitimacy. In this book, Schmitt shows that the “parliamentary legislative state” (der parlamentarische Gesetzgebungsstaat ), established by the Weimar constitution as a typical embodiment of liberal parliamentarism and jurisprudential normativism, gives an unconditional equal chance for all to achieve a majority while providing no substantive standard for judging the aims of different 17 political parties. The main danger of this “functionalistic-formalistic hollowing out of the parliamentary legislative state,” according to Schmitt, was that it was accompanied by no safeguards to prevent the majority from establishing itself as a permanent legal power—that is, there was nothing to prevent the possibility of the tyranny of the majority and the de-legalization of the minority.34 The party with a 51-percent control of the legislature could form the legal government which then had available to itself all the means of state power required for the creation, application, and enforcement of the law. In consequence, the majority was in a position to attain political power extending far beyond what was accorded to it by the legal norms. In consequence, the majority was no longer a party, but “the state itself.”35 According to Schmitt, the mere possession of state power produces an “additional political surplus” apart from the power that is merely normative and legal. This “supralegal premium” is relatively calculable in normal times, but it becomes entirely unpredictable in abnormal times. It can easily turn into factual possession of the state power, with the entire system of legality thrown aside and power becoming constituted on a new basis.36 For Schmitt, political crises thus revealed the liberal illusion of the complete and exception-less rule of law in its full nakedness. When the existence of the state is at stake, he insisted, liberal constitutionalism becomes worthless and ineffective because its procedures become so politicized that they no longer serve as anything but weapons in a violent political struggle. In critical situations the rules can thus no longer claim to embody core principles of the rule of law such as neutrality, generality, or equality before the law. In a moment of crisis, the illusion of the rule of law, and of the separation of powers, evaporates, and the state must transform itself into a real body politic centered in the political sovereign if it is not to be conquered by an enemy. Schmitt correctly envisaged that crisis was not, and would not be, as liberals have always assumed, a sporadic and temporary occurrence in the normal course of affairs. Rather, according to Schmitt, crises would become a permanent fixture of modern politics. Paying attention to the changing economic, social, and political conditions of the early twentieth century, he confronted the problem of political emergencies caused by severe crises head-on. In his view, economic 34 Schmitt, Legality and Legitimacy, 27–29. Ibid., 31. 36 In a crisis situation, the “political premium” translates into three capacities. First, there is a concrete interpretation and application of indeterminate concepts such as “public security,” “emergency,” and “hostility to the state and the constitution.” Second, the legal holder of state power has the presumption of legality on his side in hard cases. Third, the directives of the legal holder of state power are directly executable in the immediate instance, even when opportunities for legal challenges and judicial protections are provided. Ibid., 32. 35 18 collapses and political struggles excluded the possibility of regulation by liberal legal devices, that is, by previously determined general norms. Instead of such norms, claimed Schmitt, the state’s capacity of dealing with a crisis depended on possibilities of intervention which are situation-bound and case-particular. Only immediate decisions that cannot be constrained or guided by any sort of a priori rules or limits can effectively tackle with serious problems.37 Obviously, a theory of emergency government was then what was needed, one that could offer the modern state a means of legitimizing actions that permit the content of the law to be defined in each single case by all the branches of the state, including the judiciary. To outline such a theory, Schmitt needed to first develop three main elements for it: 1) an alternative concept of law, 2) a new methodological principle that would distinguish between “the normal” and “the exceptional” as two antithetical states of affairs and assign higher normative significance to the latter, and 3) a concept of the proper political form adequate to the emergency situation. As concerns the new concept of law, Schmitt proposed a dynamic, deformalized notion of law that effectively enabled the state to rule by means of individual measures legitimated through the state of emergency. In advancing this notion, Schmitt came to modify his previous position on the problem of legal indeterminacy. In his early works, Schmitt had distinguished between two elements of law, ratio and voluntas, that unite in the concrete situation of law’s application. Sovereign decision expressed the voluntaristic element of law, necessary for the concrete realization of law in empirical reality. Now, however, Schmitt drew a sharp distinction between the liberal-constitutional and a “political” concept of law, a distinction which corresponded to the dualism between the legal order and “concrete existing sovereignty.” While the “Rechtsstaat concept of law” is essentially a norm in the form of a general rule, the political concept of law expressed the political existence of the state and its sovereign will making positively valid commands that do not need to correspond to existing legal norms. 38 The political concept of law builds on a fundamental methodological tenet of Schmitt’s, namely his exclusive concern with the structure, institutions, and dynamics of the boundary situations in the existence of legal-political order: revolutions and dictatorships caused by war or economic crisis. In developing his theory, Schmitt prioritizes the relationship and points of imbalance between the legal and the political in the extraordinary moments of political 37 38 Schmitt, The Concept of the Political, 27. Schmitt, Constitutional Theory, 187. 19 experience and legal practice. These moments he perceives as essentially legal phenomena; during them, the normal legal order is suspended either partially or as a whole, or it breaks down entirely and is created anew. Insofar as they address the limit between politics and law, the extraordinary moments thus provide a key methodological tool that characterizes and circumscribes the scope and focus of Schmitt’s theory. In the interpretation of Schmitt’s work, the “state of exception” that lies at the heart of his theory of emergency government is often stressed as the extraordinary moment that provides the standard for the theory of sovereignty. However, I prefer to call Schmitt’s methodological approach the methodology of the extraordinary. For not only was Schmitt concerned with the state of exception, or the moment of the temporary suspension of the legal order during a crisis; he was equally preoccupied by democratic revolutions and the creation of a new, more legitimate legal order.39 Be that as it may, however, through his methodology of the extraordinary Schmitt was able to fill out his political notion of law, insofar as it helped him to conceptualize situations that require from the law an ability to give immediate expression to concretely existing sovereignty, by transforming it into a positively valid command. 2.2.2. Dictatorship Schmitt began sketching his theory of emergency government in the late 1910s, mentioning it for the first time in his early essay “Dictatorship and the State of Siege.” In this essay, Schmitt distinguishes between dictatorship and state of siege (Belagerungzustand), pointing out that the crucial difference between the two is that during the state of siege, a concept Schmitt derived from French revolutionary theory and ideas presented by Montesquieu, Locke, and Rousseau, the principle of the separation of powers remains in force whereas in a dictatorship it does not. The state of siege, he goes on to argue, is doomed to fail, with a military dictatorship becoming necessary during which legislative and executive powers are merged.40 Scmitt’s first systematic engagement with the problem of the emergency comes, however, only with his study 39 I agree with Kalyvas that the conflation of the extraordinary and the exceptional, that is, of a foundation and an emergency, obscures important ramifications of Schmitt’s thought on sovereignty (Kalyvas, Democracy and the Politics of the Extraordinary, 3). Kalyvas suggests that this confusion is probably due to the linkage between the classical model of revolution and the specter of dictatorship and totalitarianism. 40 Carl Schmitt, “Diktatur und Belagerungszustand: Eine Staatsrechtliche Studie,” Zeitschrift für die gesamte Strafrechtswissenschaft 38 (1917): 139. 20 Die Diktatur. Published in 1921 during a period that witnessed an extensive use of emergency powers by the first president of the Weimar Republic, the result of these reflections was a genuinely modern legal theory of dictatorship. In Die Diktatur, Schmitt goes back to the Roman theory of emergency government, defining dictatorship as a political regime exceptional in its relation to norms. Its specific nature lies in its ability to disregard legal norms. Yet, the suspension of the legal order, Schmitt argues, takes place in a dictatorship only so as to enable the realization of those very norms.41 What dictatorship is is thus a legally defined temporary authority applicable in exceptional contexts, consisting in the suspension of the most fundamental features or parts of a legal order, such as the separation of powers or basic rights, and the subordination of law to the will of the dictator. The prerogative of the dictator is exceptional and is justified by the purpose of eliminating a concrete enemy. A dictatorship is necessary, Schmitt stresses, for the sake of the existing legal order. Unlike traditional forms of authoritarian rule such as tyranny or despotism, dictatorship thus relies on two distinct resources for its justification: it derives its justification from the legal order that it is supposed to “realize” (protect or potentially create anew in a constitution making process) and its legitimation from the appeal to the state of emergency or necessity.42 By resorting to legality and emergency as the justification for dictatorship, Schmitt thus remained within the confines of the classical theory that understood dictatorship as a temporary and exceptional regime with the sole aim of preserving a constitutional order in a time of dire crisis. In Die Diktatur, however, he also examines the transformation of the classical model into the power to perpetually suspend the legal order and establish a new one. 43 To better capture this shift, Schmitt reflects on an important trend peculiar to modern politics, namely the extension of “Jede Diktatur enthält die Ausnahme von einer Norm,” as Schmitt puts it in the original German version. Carl Schmitt, Die Diktatur. Von den Anfängen des Modernen Souveränitätsgedankens bis zum Proletarischen Klassenkampf (München und Leipzig: Duncker & Humblot, 1921), viii–ix. 42 As Arato has stressed, Schmitt’s legalist approach to dictatorship makes it possible to overcome traditional forms of authoritarian rule inadequate for modern European states because of their lack of legal rationalization. Tyranny was a suitable form of authoritarian rule for small city states where rulers could stay in power through violence, while despotism developed as a form of absolutist rule in the ancient forms of statehood based on traditional legitimacy. Andrew Arato, Conceptual History of Dictatorship and Its Rivals (unpublished manuscript, The New School University, 2005), 1–10. 43 In Die Diktatur Schmitt points out that this transformation was taken seriously only by the Communists in their famous doctrine of the “dictatorship of the proletariat.” Communists went beyond the classical concept insofar as they envisioned the unrestrained power to perpetually suspend and change a political order in a permanent dictatorship. For a more detailed discussion of this point, see John P. McCormick, “The Dilemmas of Dictatorship: Carl Schmitt and Constitutional Emergency Powers,” Canadian Journal of Law and Jurisprudence 10 (1997): 163– 187. 41 21 dictatorship from a protective government to a revolutionary power of creating a new, more authentic order.44 This more recent shift in emphasis from protection to alteration and even the creation of a novel legal order is reflected in the seminal distinction Schmitt made between a “commissarial” dictatorship and the “sovereign” dictatorship of modern revolutionary times. The commissarial dictatorship, directly derived from the Roman model, corresponds to emergency rule under modern constitutions, in which the legal order is suspended and restored according to the rules laid down in the legal order itself. Sovereign dictatorship, on the other hand, is oriented towards revolutionary constitution- making or the creation of a new constitution. This model of dictatorship was derived from the theory and practice of the French Revolution, which Schmitt links to the idea of popular sovereignty. The sovereign dictator is commissioned not by the existing legal order, but by the constitution- making power (pouvoir constituant) of the people as the ultimate source of all legal authority. As Arato has stressed, it is in their terms of justification that the key conceptual distinction between commissarial and sovereign dictatorship lies: while commissarial dictatorship relies on legality, sovereign dictatorship appeals to the substantive notion of legitimacy based solely on the constitution-making power of the people.45 There are, however, also other key dimensions in which commissarial and sovereign dictatorship differ from each other. These include the nature and the scope of the task of the dictator, the nature of his commission, the form of power, its relation to the already existing legal order and hence the nature of the legitimacy of the dictatorial power, and, finally, the outcome and effects produced on the preceding order. Yet, the main distinction between the two models of dictatorship in Schmitt’s theory seems to be anchored in their relationship to the concept of sovereignty. As regards his model of commissarial dictatorship, Schmitt operates with a clear distinction between sovereignty and dictatorship. The commissarial dictator has the prerogative to do whatever is necessary to address a crisis, given the inability of codified law to anticipate the exceptional situation. At the same time, the commissarial dictator is only authorized to act in accordance to the norms of the existing legal order, with limited powers and the specific aim of reestablishing that order. Therefore, he is not the sovereign. In Schmitt’s second model of 44 Only in the modern age of democratic revolutions, as Bobbio has noted, could the concept of dictatorship be extended to the revolutionary power which unravels the old order with the aim of establishing a new one. See Norberto Bobbio, Democracy and Dictatorship (Minneapolis: University of Minnesota Press, 1989), 162–163. 45 Schmitt, Die Diktatur, 136–140. See also Andrew Arato, “Good-bye to Dictatorships?” Social Research 67, no. 4 (2000), 927–929. 22 dictatorship, the task of the dictator is fundamentally different. He is to create a wholly new constitution without being authorized to do so by the previous legal order or bound in his task by the future order. Neither the previous, nor the future legal order has any legal applicability during the sovereign dictatorship, and neither can determine its form and its scope. The sovereign dictator is “commissioned” by the extralegal constitution-making power of the people; its nature and sources are not legal but substantive. In the model of sovereign dictatorship, the sovereign is someone who has the ultimate power to create a new constitution. Sovereignty in this model thus amounts to a “creative” legislative agency derived from the constitution- making power of the people, and it may be characterized, to borrow Kalyvas’s term, as a “founding power.”46 The main outcome from the exercise of this power is a (new) legal order, even when it is itself not defined, limited, or proceduralized in legal terms. Even as a norm-founding power, it operates outside the law and remains external to the established legal order. Compared to the commissarial model of dictatorship, the link between dictatorial power and legality remains much looser. Yet, despite the dualism between legality and legitimacy in the model of sovereign dictatorship, some of the positive features of the classic commissarial model are preserved in this model: it is meant to be provisional and temporary, imposed in exceptional circumstances only, and have the aim of preventing chaos, anarchy, and war. Both models, as Bobbio has pointed out, thus spring from perceived necessity, being intended as temporary exercises of exceptional power essentially aimed at restoring or creating a normal constitutional order.47 2.2.3. The Norm and the Exception: The Threshold Model of Sovereignty Based on Die Diktatur, it remains somewhat unclear whether Schmitt actually took the commissarial or the sovereign dictatorship as the guideline for the modern emergency regime.48 46 Kalyvas, Democracy and the Politics of the Extraordinary, 90. Bobbio, Democracy and Dictatorship, 165. 48 In the interpretation of John P. McCormick and Oren Gross, Schmitt in Die Diktatur revives the institution of commissarial dictatorship in order to endorse it as an institution for the preservation of the republican political order. It is for this reason, then, that Schmitt insisted on the temporally bound character of the authoritarian dictatorship with its sole purpose of restoring the previously standing legal order. At the same time, Schmitt, in this interpretation, was alarmed by the transformation of the classical Roman model of dictatorship toward what he calls sovereign dictatorship—a framework for unrestrained political action that derived its justification from the future 47 23 What is evident, however, is that in this book Schmitt follows the approach adopted by most legal and political thinkers, namely that the dictatorial emergency regime is always exceptional, temporary, and aimed at restoring normalcy. The notion of ‘emergency’ is closely related to the notion of ‘normalcy,’ insofar as the emergency is considered sporadic, temporary, and short, and is regarded as inferior to the normal state of affairs. The same is true about the model of sovereign dictatorship as well. Even though this model fuses dictatorship and sovereignty, the revolutionary constitution- making governments nonetheless aim at reestablishing normality, by putting a new constitution into force. As Gross has put it, the governing paradigm of Schmitt’s theory of dictatorship is that of the “normalcy-rule, emergency-exception.”49 This paradigm and the distinction between sovereignty and dictatorship in the model of protective emergency government in Die Diktatur was abandoned only one year later, with the publication of Schmitt’s famous treatise on Political Theology. In this work, Schmitt radicalizes his view of dictatorship and sovereignty and their relationship in the moment of emergency, now quite suggestively termed “the state of exception” (Ausnahmezustand). Suddenly, the constitutional order that the commissarial dictator was supposed to restore seems no longer worth preserving; it can only be saved by sovereign action in the state of exception. Commissarial dictatorship has now lost its significance insofar as Schmitt has given up on his insistence on the vitality of its crucial characteristics, especially its being commissioned by another institution which decides whether there is an emergency and its being entrusted with the main task of restoring the original legal order. In Political Theology, Schmitt deliberately endorses dictatorship with no limits prescribed on the duration or the scope of the sovereign’s action.50 Dictatorship is now linked to the state of exception, and it is characterized by the authority of the absolute and unlimited sovereign decision. The theory of the state of exception as outlined in state of affairs. See McCormick, “The Dilemmas of Dictatorship,” 163–187; Oren Gross, “Exception and Emergency Powers: The Normless and Exceptionless Exception: Carl Schmitt’s Theory of Emergency Powers and the ‘NormException’ Dichotomy,” Cardozo Law Review 21 (May 2000): 1825–1868. 49 Gross, “Exception and Emergency Powers,” 1830–1835. 50 McCormick has suggested that the key to Schmitt’s change of position in this respect may be in his reception of Weber’s theory of charisma and its potential to offer an alternative to bureaucratic politics. The second possible explanation may be offered by the overall narrative thrust of Die Diktatur itself. In it, Schmitt voiced his deep distrust towards the general historical trend to merge the concepts of popular sovereignty and emergency action, seeking to offer a radical alternative in the form of a counter-theory of sovereign dictatorship. See McCormick, “The Dilemmas of Dictatorship,” 170–171. 24 Political Theology completely overshadows the original modern take on the problem of dictatorship that Schmitt had presented in Die Diktatur.51 In Political Theology, it is the concept of sovereignty in particular that undergoes major transformation. As already noted, Schmitt’s early thoughts on legal practice resulted in an understanding that the law needed to be realized through sovereign decision making. Sovereignty, so to speak, filled a fictitious lacuna between a norm and the reality, making the application of law in normal situations possible. What Schmitt now tried to show is that this gap was inherent in the concept of law itself, resulting in a major shift of emphasis in his work. In extreme situations (states of exception), Schmitt claimed, the original law needs to be suspended and even annulled, to create a situation in which the application of new, situational, and autonomous legal norms becomes possible. The link between the sovereign decision and the existing norm becomes thereby severed. As a concept, sovereign decision no longer addresses the problem of legal indeterminacy in adjudication, but rather the problem of the concrete exception within legal theory. This radicalization of the concept of sovereign decision consists in the transmutation of the emphasis in the distinction between the norm and the exception. It represents both a methodological and a normative innovation. The new method involves a fundamental normative distinction between the normal and the exceptional. Norms, according to Schmitt, are “valid only for normal situations, and the presupposed normalcy of the situation is a positive- legal component of its “validity”.”52 The rule, however, “proves nothing,” unlike the exception which “proves everything”: it proves both the rule itself and the fact that its existence derives from the exception.53 Moreover, exceptional situations possess some kind of higher existential significance. As Wolin has stressed, for Schmitt they seem to represent unique borderline moments of existential peril that become a proving ground for political authenticity—for real political Existenz. In contrast to conditions of political normalcy, which represent the unexalted reign of the average, the mediocre, and the everyday routine, the state of exception, according to 51 The concept of the state of exception represents a substantial radicalization of the theory of dictatorship. Ingeborg Maus has argued that Political Theology should not be treated as a standard of Schmitt’s legal theory (or the theory of sovereignty, for that matter): taking it at face value would obscure key continuities in Schmitt’s legal theory. See Ingeborg Maus, “The 1933 ‘Break’ in Carl Schmitt’s Theory,” Canadian Journal of Law and Jurisprudence 10 (1997): 125. 52 Schmitt, Legality and Legitimacy, 69. 53 Schmitt, Political Theology, 15. 25 Schmitt, proves capable of reincorporating the dimension of heroism and greatness that is lacking in routinized, formalized, and neutral liberal regimes.54 The norm and the exception appear as two antithetical orders with no possibility of connection between them. Since a norm can never encompass a total exception, the real exception, according to Schmitt, cannot be derived from a norm.55 While in Die Diktatur norms of the rule of law were treated as something worth restoring, and the exception was defended merely as a situation to be dealt with in accordance with given norms, in Political Theology the normal legal order is devalued as formal, abstract, lifeless, and in a need of redemption by the sovereign dictator who releases it from its own constitutional procedures. Norms thus become irrelevant; only immanent norms constituted by acts of concrete decision in the state of exception are relevant. In short, the norm is destroyed in the exception, in which, as Schmitt himself put it, “the decision parts from the legal norm, and…authority proves that to produce law it need not be based on law.”56 Law thus recedes, with the state remaining in the form of the decision in absolute purity. In Political Theology, then, all attempts to incorporate the concept of sovereignty into the framework of the rule of law have been abandoned. For Schmitt, the exception becomes a general concept in the theory of the state, and not merely a construct applied to situations of emergency. This is precisely because the state of exception reveals the specific juristic element of the decision in its absolute purity, even though the decision in the state of exception cannot be subsumed under any norm. Therefore, the exception remains a juristic category, despite the fact that it brings about the annihilation of the entire existing juridical order.57 As Agamben has noted, Schmitt makes the state of exception appear as a true and proper state of law because he wants to make effective and situational regulation of reality possible. The principle according to which necessity defines a unique situation in which law loses its vis obligandi is therefore reversed, becoming the principle according to which necessity constitutes the ultimate ground and very source of law. 58 Now Schmitt can finally proclaim that “the legal order rests on a decision and not on a norm.”59 Wolin, “The Conservative Revolutionary Habitus,” 432. As Schmitt himself puts it: “In the exception the power of real life breaks through the crust of a mechanism that has become torpid by repetition.” Schmitt, Political Theology, 15. 55 Ibid., 6. 56 Ibid., 13. 57 “Order in the juristic sense still prevails even if it is not of the ordinary kind.” Ibid., 13. 58 Giorgio Agamben, The State of Exception (Chicago: University of Chicago Press, 2005), 26. 59 Schmitt, Political Theology, 10. 54 26 What is then Schmitt’s model of sovereignty in the context of Political Theology? According to the book’s famous opening sentence, the sovereign is “he who decides on the exception.”60 Sovereignty is thus defined as the authority to suspend valid law in the state of exception. This authority concerns not only the decision whether there is an extreme emergency or not, but entails also the ability to suspend the constitution in its entirety and, consequently, to decide on what is to be done to eliminate the crisis. To suspend law or annul the entire legal order is thus the decisive mark of sovereignty. The authority to do so, moreover, cannot be predefined by law, since the details of an emergency cannot be anticipated. “The necessity of judging a concrete fact concretely” calls for sovereignty in the form of an authority to act in an absolutely autonomous fashion, based only on norms immanent to sovereign decision.61 Obviously, authority of this type cannot then be made to conform to any kind of rules. The sovereign authority, in other words, is principally an unlimited authority to act without restraints in a state whose link to the original legal order has drastically loosened. The source of this authority is the sovereign decision itself, and the normativity of its actions stems from norms immanent to the sovereign decision in the very act of its performance. At the same time, however, Schmitt maintains that sovereignty, just as the concept of the state of exception, remains a legal notion. Although standing outside the normally valid legal system, the sovereign dictator invoking the exception, he insists, nevertheless belongs to it.62 As Agamben has aptly put it, Schmitt’s sovereign is trying to be inside and outside law at the same time. The concept of sovereignty thus defines, so to speak, law’s threshold. The crucial problem connected to this conception is, to again borrow Agamben’s words, that sovereignty operates in an “ambiguous zone of indifference” positioned at the limit between politics and law. 63 The acts committed during the state of exception have the force of law even though they are removed from any juridical determination. They are neither transgressive, executive, nor legislative; they seem to be situated in an absolute non-place with respect to law. Sovereign acts, in a word, are mere facts. The most fundamental feature of the state of exception is therefore not the confusion of powers, but the separation of “force of law” from the law. Sovereignty defines a “state of the law” in which the norm is in force but not applied, and in which acts that do not have the value of law 60 Ibid., 5. Ibid., 31. 62 Ibid., 7. 63 Agamben, The State of Exception, 2–4; 23; 32–35. 61 27 acquire the force of law. In extreme situations, “‘force of law’ floats as an indeterminate element that can be claimed both by the state authority and…by a revolutionary organization.”64 Sovereignty thus emerges from Political Theology as a concept that denies the possibility for any kind of external normativity as a standard for judging sovereign decisions. The only source of legal normativity is the autonomous sovereign decision itself, undetermined by virtually anything.65 Schmitt denies that any kind of normativity could compromise the immanent principles contained in sovereign decisions. Sovereignty no longer entails the fragile balance between the legal and the political that Schmitt endorsed in his earlier work, becoming an agency whose only purpose seems to be its own performance. In Political Theology, the only goal of sovereignty appears to be the institution and sustenance of the autonomy and authenticity of the political. As Scheuerman has pointedly noted, if this was meant to be Schmitt’s response to the failure of liberal normativism, falsely identified with Kelsen’s version of legal normativism, it amounts to nothing more than the reversal of the emphasis on the will- less norm, producing an alternative theory that stresses the norm-less will. Even more so than Kelsen’s peculiar version of legal normativism, then, Schmitt’s radical juxtaposition of the norm and the will distorts the nature of legal and political experience. Ultimately, Schmitt thus offers not much more than an authoritarian complement to Kelsen’s legal positivism, one that is left devoid of the latter’s many virtues.66 2.2.4. Emergency and Plebiscitary Presidency in Weimar Should Political Theology be taken to represent the standard formulation of Schmitt’s theory of sovereignty? What is the relation between the conception of sovereignty as outlined in Die Diktatur and the one we can derive from Political Theology? Should Schmitt’s “threshold” model of sovereignty be taken at its face value? The best way of answering these questions is to look at how Schmitt applied his theory of dictatorship and sovereignty to the model of presidential emergency dictatorship, which he proposed as a solution to the crises of the Weimar Republic and promoted from the early 1930s onward. In his practical-political treatises written 64 Ibid., 38–39; 51. “Looked at normatively, the decision emanates from nothingness.”Schmitt, Political Theology, 32. 66 Scheuerman, Carl Schmitt, 74. 65 28 after Political Theology, Schmitt suggests how the state of exception may actually look like in practice.67 An opportunity to test the theory of dictatorship came during the economic crisis of 1929– 1933. Schmitt revived his earlier theses concerning the decay of parliamentarism and attacked the Weimar parliament for having become an arena for strong antagonisms that prevented parties from forming any viable majorities to effectively marginalize their enemies. The parliament, according to Schmitt, was no longer in the position to safeguard political unity, and had hence become a de facto threat to the constitution. Another force was thus needed, such that would be capable of counteracting these centrifugal tendencies, for example through a capacity to represent the German people as a whole. What Schmitt consequently proposed was that the popularly elected president act as the defender of the constitution. 68 Echoing his claim in Political Theology that law cannot be protected by another law, Schmitt insisted that preserving the constitution was a political problem, not a legal one. 69 The effective defender of the constitution must be capable of distinguishing a friend from an enemy and dispose of the political authority to proclaim the state of exception. Schmitt, probably influenced by Weber’s linking of charismatic legitimacy and plebiscitary presidency as a solution to the problem of democratic legitimacy, proposed that the Reichspresident act as the defender of the constitution. In Hüter der Verfassung, he argued that the president represents a pouvoir neuter, the neutral third who stands next to other constitutional institutions. Directly elected by the German people for seven years at a time, the president’s authority was based on a democratic mandate, which made him independent of unstable party coalitions. Through his authority to dissolve the Reichstag, call new elections, and invoke referenda, the president can act as a counterweight to the parliament by appealing directly to the people as a whole. In addition, Article 48 of the constitution, along with the president’s control over the military, granted him both the legal authority and the political power to effectively defend the constitution.70 See Schmitt, “The Dictatorship of the Reichspräsident According to Article 48 of the Weimar Constitution,” annexed to the 1924 edition of Die Diktatur; Der Hüter der Verfassung; and Legality and Legitimacy. 68 Here I rely on Bendersky’s historical account: Joseph W. Bendersky, Carl Schmitt: Theorist of the Reich (Princeton: Princeton University Press, 1983), 108–110. 69 For this reason, Schmitt devalued the role of the Supreme Court in preserving the c onstitution. Carl Schmitt, “Das Reichsgericht als Hüter der Verfassung,” in Verfassungsrechtliche Aufsätze aus den Jahren 1924-1954 (Berlin: Duncker & Humblot, 1973), 70. 70 Carl Schmitt, Der Hüter der Verfassung (Berlin: Duncker & Humblot, 1996), 16, 32–33, 40, 158–159. For the discussion of this topic see Bendersky, Carl Schmitt, 112. 67 29 Following his discussion of the role of the president and the presidential powers in a crisis, Schmitt abandoned the distinction he had earlier maintained between commissarial and sovereign dictatorship. Instead, he now combined the features of the two into a new model of presidential emergency dictatorship justified by the appeal to popular sovereignty. While in his article “The Dictatorship of the Reichspräsident According to Article 48 of the Weimar Constitution” from 1924, Schmitt still interprets the emergency powers of the president as derived from the Article 48 as commissarial dictatorship, the overall thrust of the text is clear: there should be no limits on the emergency powers of the president. Moreover, the prerogatives of the president during the state of exception resembled the powers of sovereign dictatorship of the national assembly, being hence incompatible with the existing constitution.71 When discussing the limits on presidential power in the state of exception, Schmitt criticizes Article 48 of the constitution as obstructing the task of carrying out the dictatorship effectively, stating that the emergency powers of the president cannot be limited to the suspension of the rights enumerated in the article and that it must be extended to comprehend the whole administration of the state. In Schmitt’s argument, efficient emergency government becomes impossible in the presence of constitutional provisions that place limits on the power of the president, and the necessary concentration of power will not be possible without amending the constitution. The president is to have the overall prerogative to take any measures necessary, including the suspension of the entire constitution.72 This tendency to merge the emergency powers of the president with the concept of sovereign dictatorship also makes itself felt in Der Hüter der Verfassung and Legality and Legitimacy. In the first text, Schmitt discredits the judiciary and its role in guarding the constitution. Since the guardian of the constitution may need to act beyond the existing norms, especially in times of dire crisis such as the one Germany witnessed in the 1920s, the judiciary, with its dependency on the letter of the law, proves itself unfit to protect the constitutional order. In Legality and Legitimacy, Schmitt shows that, despite the legal definition of presidential emergency powers in terms of commissarial dictatorship, the common practice sanctioned by courts and legal experts in a situation of crisis was to grant the president wide-ranging legislative powers and the prerogative to issue decrees with the force of law. In addition to his power to 71 72 Carl Schmitt, “Die Diktatur des Reichspräsidenten nach Artikel 48 der Weimarer Verfassung,” 218–219, 238, 241. Ibid., 216, 225, 227, 229, 232–233. 30 suspend fundamental rights, the president was then free to intervene in the entire system of existing statutory norms and use it for his own purposes. According to Schmitt, in the abnormal situation the president is in a position of clear superiority over the ordinary legislature, as concerns both the scope and content of its recognized legislative power. The president is able to confer on every individual measure he issues the character of a statute having priority over the existing norms of the parliamentary legislative state; “in this way, he renders practically meaningless the entire system of legal protections that was built up with great artistry to counter the orders of the executive.”73 The president, according to Schmitt, thus establishes a normative system different from the constitution’s system of legality. When arguing for the superiority of presidential decrees over parliamentary statutes, Schmitt relies on the normative distinction between plebiscitary legitimacy and statutory legality. In Legality and Legitimacy, he shows this distinction to be implicitly inscribed in the Weimar constitution, in which it created a tension between a neutral, yet dangerous and self-contradictory “functional system of legality” on the one hand and permanent and efficient “substantive constitutional guarantees” on the other hand—in other words, between legality and legitimacy, representing two entirely different modes of justification of political power. At this point, Schmitt’s argument shows a new twist, as he links the notion of emergency regime to popular sovereignty. The justification for the emergency powers of the president in the situation of emergency is now derived, not from the constitution, but from the appeal to popular sovereignty conceived of as a pre-constitutional will of the people. According to Schmitt, the democratically elected president embodies the original pouvoir constituant, or the preconstitutional will of the people and the legitimate foundation of all legality. Accordingly, in Legality and Legitimacy the president becomes identified as the third “extraordinary lawmaker” who has the right to issue decrees with the force of law.74 This right is derived from the idea of the normative primacy of the democratic will of the people. Precisely because of this connection with the pre-constitutional will of the people—but also because of the 73 Schmitt, Legality and Legitimacy, 70–71. As McCormick has noted, it is alarming that while Schmitt criticized the constitution for allowing majorities to tyrannize minorities, he at the same time discredited any specific or formally legal way of guarding against such an outcome. The only acceptable limitation on the parliament in his view was the prudence of the executive, itself formally unlimited and practically unrestrained. John P. McCormick, introduction to Legality and Legitimacy, xxxi. 74 The other two extraordinary lawmakers being the constitutional legislature, which exercises control over substantive constitutional norms , and the people, who decide directly. Schmitt, Legality and Legitimacy, 39–85. 31 increasing bureaucratization of politics and the decline of the doctrine of the rule of law— presidential decrees can have not only a temporary force of law, but also a more permanent, stable, and enduring quality than parliamentary statutes. In a condition of extraordinary circumstances, the decrees actually acquire normative superiority over ordinary statutes. Law, in other words, now means a measure and not a statute. 75 What is left in all this from the distinction Schmitt drew between commissarial and sovereign dictatorship in Die Diktatur, or from his conception of sovereignty in the state of exception as outlined in Political Theology? In Legality and Legitimacy, Schmitt elaborates a model of popularly-legitimated, quasi-sovereign presidential dictatorship. This model merges two previously distinct elements: the protective commissarial dictatorship and the appeal to the preconstitutional, substantive will of the people, which originally supplied the justification for the sovereign model of dictatorship. The result, as Kalyvas has observed, is that Schmitt now endows the president with not only the task of defending the constitution, but also the role of representing a slumbering, invisible constituent sovereign. The combination of these two, or the task of suspending the constitution joined with the task of creating a new constitution, then translates into an extremely strong executive, something which Schmitt apparently embraced.76 By justifying presidential dictatorship through a substantive notion of popular will, Schmitt is able to cast aside any normativist and proceduralist restrictions on dictatorial emergency power. However, in the absence of procedures designed to prevent abuse of dictatorial power, dictatorships can but remain susceptible to becoming unlimited and permanent authoritarian regimes or transforming themselves into dual states in which a quasi-legal normalcy may develop under the primacy of the prerogative state. The appeal to substantive democratic legitimacy thus readily lends itself to being used to justify the creation of an entirely new political regime. As Arato has noted in this connection, without procedures, popular sovereignty can be used as a mere fictional justification by dictatorships. Dictators, whether commissioned or sovereign, who become all-powerful without any limits on their actions acquire sovereign powers and thus establish a new sovereignty in both the legal and the political sense of the term: their own.77 75 Ibid., 67, 70, 73. Kalyvas, Democracy and the Politics of Extraordinary, 159. 77 Arato, “Good-bye to Dictatorships?” 936, 942. 76 32 2.2.5. Does Emergency Reveal the Essence of Sovereignty? In conclusion to this section, we may finally address the question of whether there indeed is a conceptual link between emergency and sovereignty. Are emergency situations actually moments that reveal the nature and scope of sovereignty? Schmitt championed the idea that the essence of sovereignty is exposed in its purity during the exceptional moments of crisis. Schmitt’s Political Theology, taken by many interpreters as the standard work laying out his theory of sovereignty, popularized the threshold model of sovereignty according to which sovereignty is the undeterminable and unlimited authority to suspend and alter the legal order in the critical state of exception. The tendency to identify sovereignty with emergency powers has indeed been common among political scientists. The reasons for this are several. First of all, there is a widely accepted interpretation of the early modern paradigm of sovereignty, still influential in the scholarly community today, that associates sovereignty with the supreme, absolute, and unlimited power of the sovereign person who can make law by his command free of any external legal constraints. The tendency to conflate sovereignty with emergency powers may then be one natural outcome of this perspective. Second, the emergency model of sovereignty has, paradoxically, been promoted in the liberal view holding the rule of law and constitutionalism unique in providing the most effective means through which to exclude arbitrary sovereign power from politics, thanks to their capability of dissolving it into several distinct branches of government. Since sovereignty has been understood almost exclusively in terms of singular, indivisible, and unlimited power, constitutionalism has, accordingly, understood itself as a critique of sovereignty. According to some liberal strands of thought such as that represented by Locke’s theory of the prerogative, there is a necessary distinction between ordinary and emergency powers, between, on the one hand, the normal constitutional order based on the separation of powers and respect for rights and liberties, and, on the other hand, crisis government requiring a strong discretionary executive.78 There tends to be an assumption in this view that emergency reactivates the ultimate sovereign Locke elaborated his doctrine of prerogative to address unforeseen “necessities” during which the legislative was either too numerous or too slow for the requisite executive action. In such cases, Locke argued, the laws should give way to the executive power whose prerogative is to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it. The emergency is thus what permits the disregard of the law. John Locke, Two Treatises of Government (Cambridge: Cambridge University Press, 1988), 392–393. 78 33 power suppressed under the normal legal order. Finally, one may discern in the tendency to conflate sovereignty and emergency powers the not so insignificant influence of the new ideology and also the reality of the “politics of the permanent state of emergency.” The notion was introduced relatively recently as a result of multiple diagnoses carried out concerning the crises and risks faced by modern societies (especially in connection with the “war on terror”). It derives from constitutional sources such as the executive power clause, commander-in-chief clause, and the executive’s power over foreign affairs, linking these to the concept of sovereignty. As a result of all these trends and tendencies, Schmitt’s suggestion that sovereignty is truly recognizable only in times of emergency when the normal legal order is put on hold, has become broadly accepted today. The very notion itself, however, is erroneous. As McCormick has persuasively shown, the moment of emergency has no privileged link, whether direct or exclusive, with the sovereign political will. The idea that it is precisely the state of exception that makes the subject of sovereignty relevant can thus only issue from a misunderstanding and/or, indeed, a politically dangerous position.79 Politics is essentially about our daily business of creating a just order under changing circumstances, and not some extraordinary activity addressing existential situations through exceptional means. The so-called state of exception does not reveal anything and has no existentially profound truths to offer about the nature of politics; and even less does it offer a suitable tool for identifying the normative principles of political action. To claim that sovereignty is revealed in the situation of emergency is to misconceive the nature of sovereignty as a feature of the legal-political order as a whole. Sovereignty is not the highest power in a purely political sense, something that lies dormant somewhere in a dark abyss beneath the legal order only to emerge in moments of necessity, delivering the legal order from its own constitutional procedures. Sovereignty comes into being simultaneously with the legal order. Since law and political power are co-original and therefore inseparable, sovereignty can only express the idea of the unity, exclusivity, and singularity of the legal-political order, not the ultimate, purely political authority of the sovereign person and his capacity to issue measures with the force of law. A conception of sovereignty that presents it as a distinguishing feature of the legal-political order is perfectly compatible with the framework of normal politics, in which it can become recognizable in the course of normal, repeated, institutionalized, and proceduralized 79 McCormick, “The Dilemmas of Dictatorship,” 180. 34 political practice, instead of only in exceptional, unpredictable, and uncontrollable acts occasioned by moments of necessity. The idea that it is only in critical moments that the substantively existential quality of the sovereign is allowed to shine in its fullness misconstrues the inextricable connection between constitutionalism and the institution of supreme political authority. As regards the problem of emergency government, the approach of the Romans may still suffice in providing the basic framework for dealing with the issue. Even in the conditions of our own time, in which the use of executive emergency provisions has been on the rise under the perceived threat of worldwide terror and other global risks, emergency regimes ought not pose a serious challenge to constitutional government. The tension between law and “necessity” can be resolved without undermining liberal constitutional restraints on executive emergency power. The solution to the problem of emergencies can equally be provided by a classical constitutional dictatorship with the following core features: 1) it is clearly defined in the constitution; 2) it is exceptional and temporally limited, aimed at the restoration of the constitutional order; 3) there is a clear distinction between who declares emergency and who acts in the name of emergency; 4) the dictatorship operates in a legal mode of legitimacy. This model preserves the dichotomy between the norm and the exception by upholding the distinction between normal constitutional politics and crisis government that is only resorted to in the gravest emergency. The technical features of this form of dictatorship assure that the political will remains proceduralized and hence not susceptible to abuses. Schmitt’s claim that liberalism ignores the problem of emergency is thus simply not correct, deriving as it does from a misguided view of liberalism’s “normativism.” The ethical and political substance of the liberal idea of justice is strong enough to enable the liberal state to survive exceptional situations without abandoning its constitution. A severe crisis does not imply the end of accountable political practice and its implicit normative rationality. A politically responsible decision in the state of exception cannot take the shape of an act of bare decisionism in which the only rules are the immanent situation-bound norms that the decision arbitrarily sets, destroying the rule of law. On the contrary, the “sovereign decision,” if applied at all, must be bound, at least implicitly, by reasonable principles, even though these principles may not be formally enshrined in legal statutes. As Bielefeldt correctly insists, even the state of utmost exception, that is, one that cannot be dealt with through recourse to positive legal norms with a 35 decision becoming necessary as a result, should be approached in an attitude, as it were, of setting up a new precedent to which one should be able to refer in every comparable situation. Unlike bare decision, setting up a precedent entails an element of reasonability and accountability by means of which its enactment goes beyond mere arbitrariness. Given that the precedent points to an implicit rule, it can, at least indirectly, be connected with the constitutional principle of the rule of law.80 80 Bielefeldt, “Carl Schmitt’s Critique of Liberalism,” 65–75. 36 2. 3. Popular Sovereignty and Democratic Constitution-Making 2.3.1. Schmitt’s Constitutional Theory During the early phase of his work in the early 1920s, Carl Schmitt focused mainly on moments of crisis and threats to constitutional order as caused by economic and political emergencies. He criticized liberal constitutional systems for their incapability to effectively respond to such emergencies without compromising their own fundamental political principles, offering his own proposal centered on the idea of a presidential dictatorship as a remedy. The justification of this idea, in Schmitt’s thesis, was derived from the close linkage the notion had to popular sovereignty, which Schmitt saw as the type of government best suited for resolving crisis situations. In his subsequent legal-philosophical work, Schmitt concentrated on demonstrating that the popular power that justified the prerogative of the president in emergency situations in fact formed the very foundation of all constitutional systems. This original power that escapes legal translation Schmitt had previously shown to periodically resurface in the constitutional system through the rifts caused by crises; now, however, it became the starting point for his entire project of developing an alternative theory to liberal constitutionalism. In keeping with his particular method of political analysis, which focused on periods when the normal legal order becomes suspended or altered, Schmitt fully devoted his attention to the moments of dynamic emergence when a legal-political order comes into existence, with the aim of proving that the preconstitutional will of the people formed the very basis of the legal order as a whole—and hence also the legitimate foundation of all legality. This analysis was systematically developed in Constitutional Theory, Schmitt’s magnum opus from 1928. In both its tone and emphasis, Constitutional Theory differs significantly from Schmitt’s earlier works, which had primarily addressed the inability of liberal constitutions to provide clear guidelines and mechanisms for dealing with tense critical moments particular to modern societies, portraying liberal theory as outdated, hypocritical, and illusionary. Constitutional Theory addresses liberal constitutionalism in a much more conciliatory tone. In it, Schmitt does not seek to discredit liberal constitutionalism in its entirety. Rather, as Seitzer has noted, he tries to transform it from the inside out. This he does by shifting the categorical 37 epicenter of the liberal constitutional tradition, from the idea of the protection of individual liberty to the idea that the legitimacy of the constitution depends on the sovereign decision of the people.81 Schmitt’s critics often argue that what he sought to do was to replace constitutionalism as a formalized and proceduralized legal system with boundless sovereign decision.82 While this may appear to be the case in the context of Schmitt’s discussion about dictatorship, Constitutional Theory clearly shows it to overall not be a correct interpretation. Schmitt does not reject constitutionalism wholesale. Instead, he tries to show that constitutionalism cannot be defined solely as government defined and limited by the rule of law. He systematically reconstructs the entire constitutional tradition in a way that enables him to show that the constitution does not precede the state, but, rather, embodies a preexisting political will of the people, which cannot be reduced to formal legal principles. Schmitt’s underlying argument is that a constitution not informed by the particular political will of the people in fact undermines the legitimacy of their political order. Reviving his own early observation that a concrete political will must precede law if law is to be efficacious, Schmitt now argues that a constitutional order is a mere formal condition that must be given meaning and legitimacy by the concrete political will of the people existing prior to it. The will of the people must be presupposed as the origin of the constitution, and it must be recognized as something coexisting next to the constitution, waiting to reassert itself anytime when it no longer identifies with the constitutional order. Schmitt advances this argument by focusing on the origination of the constitution in the process of constitution making. The process of constitution making is described in terms of the exercise of constitution- making power. This notion, taken from eighteenth-century French constitutional theory, enables Schmitt to identify the substantive core of the constitution and distinguish it clearly from its normativist “Rechtsstaat” component consisting mainly in the separation of powers and basic rights. This liberal component, Schmitt claims, cannot be identified with the constitution per se. The constitution is not, as is commonly assumed, a special type of political order expressed in legal terms, or the fundamental basic law at the top of a closed and unified hierarchy of legal norms; such notions only establish an abstract unity through a system of statutory norms. Instead, the constitution is “the concrete, collective condition of 81 Jeffrey Seitzer, introduction to Constitutional Theory, 34. See Scheuerman, Carl Schmitt, 73, 81. See also John P. McCormick, Carl Schmitt’s Critique of Liberalism: Against Politics as Technology (Cambridge: Cambridge University Press, 1999), 137, 140. 82 38 political unity and social order of a particular state.”83 It rests upon the sovereign power of the people to give itself a constitution, regardless of its particular form. Consequently, the constitution needs to be understood in a “positive” or “absolute” sense as the embodiment of the substantive political unity of the people, expressed in the singular act of its political will. The constitutional theory proposed by Schmitt focuses on the moment of the origin of the constitutional system. The methodology of the extraordinary helps Schmitt to disentangle constitutionalism from liberalism and to present what some commentators have called a theory of “democratic constitutionalism.” Contrasting with the liberal version of constitutionalism, which aims at the elimination of popular sovereignty from its framework, this new theory, as Kalyvas has suggested, can be looked upon as an attempt to conceptualize the constitution as something that embodieds and preserves the original popular founding power, instead of merely limiting or negating the popular constituent will. Accordingly, the constitution, for Schmitt, is to be defined as the legal codification of the constituent will, that is, as something offering the only possibility for democratic sovereignty to attain a concrete and secure institutional form. 84 At least in this respect, Schmitt’s Constitutional Theory can be said to represent an ambitious and intriguing attempt to reconcile popular sovereignty with constitutionalism, one that is worth taking a closer look. 2.3.2. Constitution-making Power and Dictatorship The idea of constitution making, understood as an act expressing the sovereign popular will, occupies a central place in Schmitt’s constitutional theory. As already noted, Schmitt’s work in this regard draws from eighteenth-century French constitutional theory, which Schmitt reconstructed focusing in particular on the work of Emmanuel Sieyès, one of the main originators of the popular sovereignty discourse during the French Revolution and a driving force behind the creation of the French National Assembly. Sieyès had proposed a thorough reconstitution of the social and political order of the ancien régime through an act of resolute assertion of the sovereign political will of the entire 83 84 Schmitt, Constitutional Theory, 59. See Kalyvas, Democracy and the Politics of the Extraordinary, 130–136. 39 nation. Only when the people are united as a nation, claimed Sieyès, are they capable of exercising a common political will.85 Sieyès envisioned this act as a clear political decision made by a representative body in which every deputy stood for the nation as a whole, and not by a body made up of several orders where delegates represented the particular wills of their electors. Only through the exercise of the inalienable common political will of a unified nation could its citizens break entirely with the past, repudiate the constitution of the old regime which promoted the traditional feudal system of representation, and reconstitute its true political identity. 86 Sieyès argued that because of its capacity to articulate its common political will, the nation was the ultimate origin of everything else in a political system. It was the holder of sovereignty, which it exercised through the pouvoir constituant, or the absolute, indivisible, unifying, and unified power that it according to Sieyès had, making it the source of all other, already constituted (executive, legislative, judiciary) powers, or the pouvoir constitué. In Schmitt’s interpretation, Sieyès’s conception of the nation as the subject of the constitutionmaking power represented the first modern constitutional theory in that it grounded the origin of the constitutional order in an autonomous decision of the people about the concrete form of their political order. This idea of the pouvoir constituant as the only legitimate source of the constitution was then adopted by Schmitt, who called it verfassunggebende Gewalt and defined it as the political will capable of making a concrete, comprehensive decision over the type and the form of the political existence of a community.87 Following Sieyès, Schmitt describes the constitution- making power as an indivisible power which is not an additional authority alongside other powers, but the ultimate foundation of all other powers and constitutional laws.88 Unlike Sieyès, who thought it possible to invest the sovereign will of the nation in a representative body that itself constituted the nation as a whole, Schmitt claims that the constitution- making power cannot be represented; any attempt to do so would contradict the very essence of this power. The only entity that can legitimately exercise the constitution-making power is the people itself, possessing the consciousness of its own political Emmanuel Sieyès, “Qu’est-ce que le Tiers Etat?” in Political Writings (Indianapolis: Hackett Publishing Company, 2003). 86 As Baker has pointed out, Sieyès’ stress on the nation and its unitary will was meant to promote the idea of a political body of associates living under a common law and a notion of citizenship as a relation of equality and universality, both contrasting sharply with the systems of exclusion, hierarchy, and priv ilege of the ancien régime. Keith M. Baker, “Sieyès,” in A Critical Dictionary of the French Revolution, edited by François Furet and Mona Ozouf and Arthur Goldhammer (Cambridge: Harvard University Press, 1989), 318–319. 87 Schmitt, Constitutional Theory, 125. 88 Ibid., 125–126. 85 40 distinctiveness and a concrete will to political existence. The exercise of this constitution- making power takes the form of an absolute, unifying, and indivisible sovereign decision that cannot be represented, delegated, mediated, or limited by any set of preexisting norms, lest the autonomy of the founding decision be compromised. In fact, Schmitt criticized the French Revolution for its shortage of democratic legitimacy, caused by the fact that the revolutionary constitution was designed by the sovereign dictatorship of the Constituent Assembly, instead of being created by the sovereign constituent popular power alone.89 In Constitutional Theory, Schmitt reconceptualizes the exercise of the constitutionmaking power in a radically democratic fashion. Faced with the conditions of modern democracy, however, he is compelled to admit that the people can delegate their constitution- making power to a special commissioner entrusted with the task of executing and formulating the constituent decision. A constitution-making national assembly elected in accordance with the basic principles of the general and equal right to vote represents, for Schmitt, a valid method for carrying the task of constitution making. Such an assembly is specially commissioned for the purpose of formulating and legislating constitutional provisions, drafting the text of constitutional laws, and submitting this text to the popular vote or other explicit confirmation by the people. 90 Insofar as the people identify with the assembly, as might be the case for example in the aftermath of a revolutionary insurrection or based on the results of a referendum, it embodies the popular will. Only by responding to the publicly assembled and unified people in which the constitutionmaking national assembly has its legitimating origin and justification, does the assembly maintain its democratic legitimacy.91 For Schmitt, the direct and unmediated expression of the popular will is thus crucial. The most natural form of the direct expression of the people’s will is the assembled multitude’s declaration of their consent or their disapproval vis-à-vis the issues formulated by the 89 Moreover, the assembly did not consider it essential to have its constitutional product ratified in popular referendum. Ibid., 128, 130, 140. See also Andrew Arato, Civil Society, Constitution, and Legitimacy (Lanham: Rowman & Littlefield Publishers, 2000), 238. 90 Schmitt, Constitutional Theory, 132. 91 According to Arato, the model of constitution making by a sovereign constitutional assembly which Schmitt considers fully democratic thus involves five elements: 1) the dissolution of all previously constituted powers; 2) a popularly elected or acclaimed assembly with a plenitude of powers; 3) a provisional government rooted entirely in this assembly; 4) a constitution offered for a national, popular referendum; and 5) the dissolution o f the constituent assembly upon the ratification. See Andrew Arato, “Forms of Constitution Making and Theories of Democracy,” Cardozo Law Review 17 (1995): 204. 41 constitution-making national assembly—the popular public acclamation.92 The people, according to Schmitt, cannot appear as an organized organ, if they are to retain their nature as a substantive political unity superior to every normative framework. Nevertheless, the people are capable of answering the fundamental questions of their political existence, precisely by virtue of being the bearer of the inalienable constitution-making power. Only when given a direct and public expression can the political will of the people avoid becoming deformed by the representative functions of the parliament and be communicated directly to the sovereign dictator, who then in turn can refer back to the people’s will as the justification for his power. The model of constitution making emerging from Schmitt’s Constitutional Theory resembles the notion of sovereign dictatorship as elaborated in Die Diktatur, where the term referred to an exceptional regime authorized directly by the constitution- making power of the people and designed for the establishment of a new legal order. However, Schmitt’s model of constitution making in his mature constitutional theory seems to hover somewhere between the legalist model of dictatorship legitimated through reference to popular sovereignty and the idea of the state of exception. On the one hand, the relation of the sovereign decision to normativity is not as ambiguous as in the Political Theology; the constitution and the legal order that the constitution creates now represent a unique outcome of the extralegal constitution-making power. On the other hand, Schmitt does not seem to be capable of avoiding the arbitrary and discretionary exception-like attributes of the sovereign creation of a new constitution. He insists that the act of constitution making cannot be regulated by any procedure binding the expression of the constitution- making power. This applies no less to the content of the political decision. The sovereign popular will cannot be limited, controlled, or restricted by any preexisting system of legal norms, because any element of preexisting normativity would make it impossible to view the constitution- making power as the ultimate origin of a constitutional regime. The people, as Schmitt puts it, must be “always in the state of nature” when acting in the constitution- making capacity.93 The people’s will is direct, originary, and groundless, standing prior to and above any legal constitutional procedures. As Schmitt had put it already in his earlier work, the constituent decision of the sovereign demos must be an absolute beginning stemming from normative nothingness and concrete disorder.94 92 Schmitt, Constitutional Theory, 131. Ibid., 128. 94 Schmitt, Über die drei Arten des rechtswissenschaftlichen Denkens, 23–24. 93 42 The claim that any genuine creation of a new constitutional order through a popular founding decision can only take place during an extraordinary moment of a juridical vacuum in some sort of natural state, has subsequently been subjected to extensive critique. Most of the commentators have focused on the link between the groundless, extralegal, and nonprocedural state of nature as the milieu in which the constituent power is exercised, and the unlimited arbitrary dictatorship as the only instance that ultimately is capable of carrying out the task of constitution making. For Schmitt, a revolutionary transition from one legal order to another always involves a normative breach in which the only source of legitimate authority is the people and its unmediated public decisions. Consequently, Schmitt rejected the possibility for any kind of procedures for testing the democratic legitimacy of the acts of the sovereign dictator that could protect the people against the misuse of its sovereignty. The limits of this conception are obvious. Since there is no procedure that delegates constituent power and sets limits on the sovereign dictator, popular sovereignty can easily become a mere fiction as the all-powerful dictatorship establishes its own permanent sovereignty. As Arato has shown, Schmitt’s theory of sovereign dictatorship during constitution making can thus provide justification for revolutionary dictatorships whose nature and limits are not clearly determined. 95 2.3.3. The Model of the Foundation and Its Critics While Schmitt’s model of sovereign dictatorship during constitution making may thus have its limits, it nonetheless succeeds in directly confronting one of the most puzzling and neglected problems of democratic theory: that of the foundation of democracy and the democratic legitimacy of a constitution.96 By emphasizing the fact that constitutions are acts of the people, and that only this is what makes them legitimate, and by insisting that the constitution- making Arato, “Good Bye to Dictatorships?” 929–930, 942. There is a paradox pertaining to the institution of democracy as a constitutional regime. The requirement regarding the democratic legitimacy of a constitution implies that the constituent process itself must be democratic. However, since modern democracy is only conceivable as something based on rules and procedures, there must be rules for constitution making as well. Yet, if there are such rules, the constitution cannot, in the true sense of the notion, be the ultimate source of authority; it will only come about as an act of an already established authority, hence lacking any genuine legitimation. An element of non-democracy in the moment of constitution making seems thus unavoidable. For a discussion of this topic, see Arato, “Forms of Constitution Making and Theories of Democracy,” 191–231; Arato, “Dilemmas Arising from the Power to Create Constitutions in Eastern Europe,” in Constitutionalism, Difference, Identity, and Legitimacy, edited by Michel Rosenfeld (Durham: Duke University Press, 1994), 165–194. 95 96 43 process itself must be democratic in nature, Schmitt wants to provide a purely democratic answer to the question of the beginning of democracy. I so doing, he supplies us with conceptual tools with which to distinguish between democratically legitimate and non-legitimate constitutions. From the point of view of a normative theory of democratic constitution- making, the issues stemming from the absolute normative independence and immanence of the constituent process (its arbitrariness and the absence of limits) are the price to be paid for the possibility of reactivating a genuine constitution- making power of the people and generating true democratic legitimacy for the new political system. As Kalyvas has argued, the moment of legal and normative vacuum that Schmitt envisions as the proper milieu for legitimate constitution-making is the necessary condition for sovereignty’s emergence, not its essence. It secures the openness and contingency that provides the available space for the reactivation of the constitution-making power, which up to then remains as it were hidden in a subterranean form. Recourse to dictatorship should, accordingly, not be viewed as a glorification of violence and illegality, but as the condition of possibility of extraordinary popular intervention. 97 The problem, however, remains that Schmitt conceptualizes constitution making as a beginning in an absolute sense, without allowing for any kind of normative criteria or ethical values in the act of constitution- making. The claim that legal normativity arises from some normative nothingness and that a constitutional order stems from an empty space is, in closer inspection, untenable. It even contradicts the aims of Schmitt’s own overall project, at least as concerns its early formulation. As already noted above, Schmitt maintained that social practices and human action are what brings law into action; for this reason, any account of legal normativity must include this relationship in its framework. Human action, however, is always guided by some normative principles, and hence it cannot be conceived as a pure decision relying on its own immanent norms alone, especially when considered as the source of a legal order. Insisting on a radically decisionistic account of extraordinary moments, Schmitt therefore deprives himself of any ability to provide us with an account of the conditions behind the possibility of a legal system that truly relies on human activity. 98 In her famous treatise On Revolution, Hannah Arendt followed up on the topic of the foundation of constitutionalism, engaging in a sophisticated dialogue with Schmitt’s theses. 97 Kalyvas, Democracy and the Politics of the Extraordinary, 118–119. On this point and for a discussion of Schmitt’s idea of normativity, see Sylvie Delacroix, “ Schmitt’s Critique of Kelsenian Nomativism,” Ratio Juris 18:1 (2005): 30–45. 98 44 Arendt shared with Schmitt a general concern with the moment of a genuine new beginning, a zero point at which new autonomous norms for the future legal and political regime are established. Like Schmitt, she was convinced about the truly extraordinary nature of constitution making, and that constitutions should be acts of the people constituting the government. Unlike Schmitt, however, for whom freedom belonged to the despised world of liberalism, she argued that the ultimate goal of revolutionary constitution- making is the constitution of freedom and the foundation of the republic.99 Arendt praised the American Revolution for the insight that power and freedom belong together and that the only way to secure freedom is to write down a constitution that will then become the source of law. The French Revolution, in Arendt’s account, led to a very different outcome. It surrendered to the fateful moment of constituting and turned into a dictatorship. The core problem here is precisely the distinction between the constitution-making power and the constituted power, which was supposed to address what Arendt calls “the problem of the absolute,” or the problem of what should be the ultimate source of law and what should be the origin of power. Both Sieyès and Schmitt, whom Arendt never explicitly mentions but clearly refers to, had proposed the notion of the constitution-making power as a solution to the problem of the absolute beginning. By conceptualizing it in a substantive, decisionistic fashion, and by locating it in a state devoid of law, they both believed to have found an external source of authority that transcends the legislative act itself while still bestowing legality upon law.100 Such an extralegal notion of the constitution-making power, however, only seemingly solves the problem of the legality of new laws and the legitimacy of the new power. Part of the problem, in Arendt’s view, is that both power and law are anchored in the will of the people, which itself remains exercised outside the political realm—that is to say, outside of any kind of normative framework. To insist on the state of nature as the matrix in which alone the sovereign popular will can be expressed does nothing to prevent the possibility of the degeneration of popular sovereignty into tyranny.101 But the people cannot be the source of both power and the origin of law. According to Arendt, law and power do not come from the same source. They have different origins, different sources of legitimacy, and different spheres of application. Power 99 Arendt, On Revolution, 139–141. Ibid., 160–161, 184. 101 Arendt argued that “perhaps the greatest American innovation in politics as such was the consistent abolition of sovereignty within the body politic of the republic, the insight that in the realm of human affairs sovereignty and tyranny are the same.” Ibid., 152. 100 45 comes into being as a result of people acting together as equals, and it is kept in existence through a nexus of mutual promises and reciprocity in a community. If the people are neither an organized nor a constituted body, power becomes sheer natural force, nothing but the violence of a multitude outside of all bonds and all political organization. Law, on the other hand, finds its source in the constitution that confers validity on all laws.102 Arendt argued that as long as law is not understood as a mere command to which men owe obedience, being instead taken as a set of norms that protect our freedom, there is no need to look for an absolute, transcendent source of authority to bestow validity upon laws. One only needs to identify the principles that guide the process of laying down the fundamental law, the constitution, as the source of validity for all laws, and protect it against the risks of arbitrariness and discretion in its employment, by channeling the constitution- making power. Arendt located these normative principles in the act of foundation itself. They are immanent principles of political action present in the very moment of that action, and work as a form of self-limitation. Inspired by the American Revolution, Arendt in this connection referred to practices of “common deliberation” and “mutual promises.” 103 Schmitt’s and Arendt’s theories represent unique attempts at providing a normative democratic account of the origin of constitutionalism. Both of them have contributed significantly to our understanding of constitutions in nonlegalistic terms. The constitution is not only a supreme legal norm or a system of legal procedures that creates limited government, but a profound expression of the political self-definition of the people. Accordingly, both Schmitt and Arendt held, the constitution must be created by the people themselves, and democratically so in a relatively strong sense. Based on historical examples, they each suggested a normative model of constitution making. In Schmitt’s case, this model inevitably led to a conception of radically democratic constitutional politics. It is undoubtedly an achievement of Schmitt’s theory to have opened up a topic within the theory of democracy that addresses itself to the question of what it takes for democracy to be established democratically. In recent decades, this issue of democratic origins has increasingly attracted the attention of political scientists, with the rapid spread of new democratic regimes 102 Ibid., 183–190. The experience of the French Revolution shows that power can easily be confused with violenc e. The men of the American Revolution, on the contrary, understood by power the very opposite —togetherness bound through covenants and mutual pledges. Ibid., 166–170. 103 Ibid., 205, 212, 214–215. 46 around the world. Yet, the recent history of democratic transformations has not exactly proved the tenets of the normative model of democratic constitution- making. A new, “postsovereign” method of democratic constitution- making has consequently been introduced as a more viable method of carrying out the projects of democratization.104 The wave of constitution making in the Central European countries in the late 1980s and the early 1990s brought to the forefront a model of constitution making devoid of any reference to the sovereign people as the subject of constitution making, resulting in constitutions lacking any genuine form of revolutionary legitimacy. Constitution making in these cases was tied to the processes of a negotiated transition from communism to democracy and market capitalism, carried out in strict adherence to legal continuity.105 From the point of view of the normative theories of Schmitt and Arendt, derived from the historical models of the French and American Revolutions, constitutions emerging from postsovereign constitutional politics lack democratic legitimacy in any strong sense; instead, they are characterized by legal continuity, lack of clear embodiment of the constitution- making power in a single organ, and the absence of an inclusive, extraordinary popular movement. The significant degree of legal and institutional continuity with the previous regime, involving no clear break with the past, can be said to have compromised the status of the emerging constitutional norms.106 Nevertheless, in the Central European cases of the early 1990s, this process managed to bring into existence stable democracies. The experience from regime changes, constitution makings, and transitions to democracy then does not seem to confirm any necessary connection between the way the foundation of democracy is laid and the durability and quality of that democracy. For a discussion of the “postsovereign constitution making,” model see Andrew Arato, Constitution Making Under Occupation: The Politics of Imposed Revolution in Iraq (New York: Columbia University Press, 2009), 59– 99. 105 Constitution making in the Czech Republic, for example, took place via normal parliamentary procedures. The constitution was drafted by the executive and approved by the legislature, with no popular ratification nor any extended public discussion involved. The model of constitution making no longer based on the appeal to the sovereign people has been applied in other countries as well, such as South Africa and Nepal. In all cases, legal continuity, amending the old constitution, roundtable negotiations , and the decline of constituent assemblies were the dominant features. Ulrich K. Preuss, Constitutional Revolution: The Link Between Constitutionalism and Progress (Atlantic Highlands, NJ: Humanities Press International, 1995). 106 Ackerman has argued that in Eastern Europe, the window of opportunity to establish democratic constitutional politics “has slammed shut.” Bruce Ackerman, The Future of Liberal Revolution (New Haven and London: Yale University Press, 1992), 55. 104 47 The link between the democratic origin and the democratic outcome of democracy is thus vague at best, at least on empirical grounds. Yet, Schmitt’s model deserves to be credited for stressing the relevance and the possibility of the moment of a thorough political and legal reinvention. Schmitt’s theory of the democratic origin of constitutional democracy represents an intriguing attempt to conceptualize the possibility of a radical, autonomous political reconstruction of society. The process of constitution making offers a unique opportunity in the life of a political community for the members of that community to define a common political identity in a collective deliberative process of political reconstitution, to symbolically break with the past and construct a new normative order for itself. Schmitt’s “democratic constitutionalism” can at the very least be appreciated as an approach that enables one to assess the autonomy and political legitimacy of a particular constitutional system, based on the extent to which the people can consider their constitution the outcome of a political process in which they themselves have participated. Schmitt invites us to consider sovereignty in a new light, along with the possibility that the redefined notion of sovereignty might form an indispensable and permanent feature of constitutional democracy. 2.3.4. Constitutional Democracy and the Reconstitution Model of Sovereignty By stressing the moment of the foundation of constitutionalism, Schmitt gives a new and original meaning to the concept of sovereignty. In his earlier discussion about the emergency government, sovereignty denoted the power to suspend the existing legal order. By the time he published his Constitutional Theory, sovereignty, for Schmitt, had come to mean the capacity to create the legal order anew. As Kalyvas has observed, Schmitt thus redefined the concept of sovereignty in quite a dramatic manner. He shifted the emphasis from the supreme power of command, which was the traditional understanding of the term, to the creativity of the founding act of the people and its constitution- making power. The sovereign was now the original author of a new constitutional order, with the sovereignty consisting in the creative, instituting power to set a new system of fundamental laws that institute a political order. This agency, for Schmitt, was norm-founding and productive; it was exercised in the extraordinary moments of the 48 concrete manifestation of collective autonomy and aimed at bringing about a thorough change in the institutions of society.107 Linking sovereignty to the notion of the reconstitution of collective autonomy represented a highly innovative approach to sovereignty. It disentangled sovereignty from the commonly accepted and largely negative notion of sovereign political authority, understood as either authoritarian (being supreme) or dominating (having monopoly on the use of force) by definition. In his constitutional theory, Schmitt implicitly proposes that we look at sovereignty as an inherent feature of the political order and its capacity to reinvent itself, or to be autonomous. This was, then, a unique attempt to categorize sovereignty as the expression of the essence of the political that stemmed from the power of the people to create a political order, no longer linking it to the oppressive power of a state alienated from its constituency. Sovereignty, as it emerges from Schmitt’s constitutional theory, is the genuine expression of the collective autonomy of the people, transposed into a constitutional order that a body politic gives to itself. Such a reconceptualization of sovereignty has potentially far-reaching consequences for our understanding of constitutionalism, especially as regards its relationship to sovereignty. By way of conclusion to this chapter on Schmitt, we might then consider the question of whether Schmitt’s insistence on the sovereign origin of the constitution indeed refines our understanding of constitutionalism and, by extension, the theory of constitutional democracy, which has for long struggled to include popular sovereignty as one of its key normative principles. The inclusion of the decision of the popular sovereign as the very foundation of the constitutional order and the main source of its legitimacy takes us beyond the dominant view of constitutionalism which, for the most part, has couched its subject matter in excessively legalistic terms. Constitutionalism is usually defined as government legally limited in its powers by a body of fundamental law. Central to constitutionalism is the idea of constitutional rights, their entrenchment in a document, and their interpretation by a supreme or constitutional court. Accordingly, a constitution is defined as a written document embodying the fundamental law superior to ordinary legislation and entrenched against legislative change. Defined as legally constituted and limited government, constitutionalism has been seen as an effective displacement of sovereignty and hence a bulwark against abuse of state power. This antagonism of constitutional government and sovereignty ultimately derives from an interpretation of Hobbes’s 107 Kalyvas, Democracy and the Politics of the Extraordinary, 90–100. 49 theory in terms of a constitutionally indivisible and unlimited power. Sovereignty, according to this dominant understanding, amounts to the absolute power in formulating and implementing the law, one that cannot be legally defined or limited by definition. The idea of legal limitations on sovereign authority would only raise the further problem of another sovereignty as the source of this law. One of Schmitt’s most valuable contributions is his attempt to undo the antagonism between sovereignty and constitutionalism, by making sovereign power the foundation of constitutional order. Most legal and political theories have been unable to account for the origin of constitutionalism or integrate the category of sovereignty into the framework of the theory of limited government. Indeed, the only attempt in this direction is that by Hans Kelsen. Kelsen, through his employment of the rather elusive concept of the basic norm, nonetheless suggested not to give constitutionalism any distinct political meaning. Instead, he attempted to prove that a legal norm always originates in another legal norm, eliminating all political elements from the sources of legal normativity. With the qualified exception of Kelsen, no accounts of the origin of constitutional laws—an issue of great relevance in the modern age of democratic revolutions— have been attempted in legal and political theory to date. In the field dominated by a legalist approach to constitutionalism, Schmitt stands out as the only one to argue that the creation of a constitution does not mean the elimination of sovereignty, but instead its genuine legal expression. A key task in linking sovereignty to constitutionalism is to reassert the neglected political aspect of the constitution and focus on the notion of political constitutionalism. Recently, as Richard Bellamy has noted, the possibilities for such a political conception of constitutionalism have been undermined anew by a concentration on the bill of rights and the view that it is the substantive part of the constitution that rights make up that truly encapsulates the essence of democracy and constitutionalism—as if the rules defining the form of the government had no constitutional value as constraints upon arbitrary rule. 108 Constitutions, however, have in the first place political relevance. They express above all the political existence of a community and give it a concrete political-institutional form. They consist of a set of procedures that establish a form of government; they set up a political system rather than a legal one, by defining procedures for how political power is to be divided and organized. In democratic constitutions, these represent 108 Richard Bellamy, Political Constitutionalism (Cambridge: Cambridge University Press, 2007), 6. 50 the procedures for resolving disagreements in a democratic fashion and for defining the terms of citizens’ participation in democratic politics. The democratic process itself is the constitution. 109 Schmitt represents one of the few thinkers to stress that constitutional law is not “the lawyers’ law, but the people’s law,”110 and that what makes it the people’s law has to do rather with the “thick” constitutional process of democratic law-making than with the “thin” constitution of rights as determined by judicial review.111 Schmitt strove to disclose the political aspect of the constitution by focusing on the moment of constitutional politics, claiming that the latter must be democratic in a robust fashion. Yet, the way Schmitt understood popular sovereignty in the foundational process causes his theory to fall short of its ambition to outline a feasible political theory of constitutionalism—and to provide a solid foundation for constitutional democracy. In order to sustain the idea of the absolute beginning, Schmitt had to insist on a purely substantive notion of the sovereign instituting power. Since the sovereign expressly decides to create an entirely new juridical form for the political community, the founding act had to represent a total legal break separating it from the previous system of norms. Thus, to be able to constitute the ultimate origin of a normative order, it must escape all normative determination. Therefore, Schmitt concluded, constitution- making power exists and is exercised in a legal vacuum, strictly defined as a normative void. For this reason, neither the threshold model nor the much more promising reconstitution model are able to avoid the problematic connotation with the state of exception. In fact, in the reconstitution model, the state of exception appears as an immanent possibility internally related to democratic will formation. In both models, sovereignty in the end takes shape as an unlimited dictatorial authority that can be neither predefined by law nor made to conform to the law; it can only be defined as the authority to make an autonomous decision undetermined by anything prior to it. Ultimately, Schmitt’s theory of democratic constitution- making thus makes a rather controversial contribution to the theory of constitutional democracy. Based on it, there seems to be little difference between democracy and the state of exception, at least not during the founding process. This was the result ot Schmitt’s strictly substantive notion of the constitution- making 109 Bellamy argues that participation in democratic politics, and not judicial process, is the most legitimate and effective way of resolving disagreement while at the same time impartially weighing the views and accord ing them equal concern and respect. Thinking otherwise necessarily implies a condescending view of democratic politics. Ibid., 1–4. 110 See Joseph Raz, “On the Authority and Interpretation of Constitutions,” in Constitutionalism: Philosophical Foundations, edited by Larry Alexander (Cambridge: Cambridge University Press, 1998), 154. 111 Bellamy, Political Constitutionalism, 6. 51 power and his refusal to procedurally determine the instance that carries out the task of constitution making. The difference between democracy and the state of exception is, however, difficult to sustain on the level of normal democratic politics as well. If democracy is defined as the identity of the governed and governing, and not just in a figurative sense but in the sense of a real unity created by the sovereign, all the formal procedures of a normal parliamentary regime will always be trumped by the decisions of the sovereign’s personal authority in concrete circumstances, since it is these that can reconstitute the highest degree of democratic identity. In the end, the exception is the only moment in which true democracy can be sustained. Furthermore, while Schmitt’s conception of democratic constitutional politics does much to advance our ability to answer the question of what endows the constitution with democratic legitimacy, it throws little light on the issue of how to establish constitutional democracy as a normal political regime. Schmitt never meant to suggest that democratic constitution- making should produce constitutional democracy in which the constitution defines the legal and institutional framework for democratic political process. For him, a constitution is, first and foremost, the embodiment of the substantive constitution- making power of the people, and hence a concrete, total state of the political unity of a particular state, rather than a set of procedures defining the political process. Schmitt’s democratic constitutionalism thus leads not in the direction of what Ackerman has called a “two-track theory of democracy,” which combines the deliberative constitutional politics of “higher” lawmaking producing constitutional norms through mass mobilization and participation with a “lower” track of normal lawmaking and day-to-day pluralist bargaining in a representative assembly. 112 For Schmitt, normal parliamentary politics does not institutionalize but kills the popular sovereign and hence represents the antithesis of democracy. Ultimately, what is left of popular sovereignty in Schmitt’s theory is then the moment of unmediated mass public acclamation of the people in a revolutionary upheaval. If the people themselves are to be the final arbiters of the constitution, then it is ordinary legislation within the legislature that is the sphere of constitutional politics. Anyone who places constitutional politics outside the normal political realm can but fail to see how it is precisely the day-to-day participation in the political process that gives normal politics its genuinely constitutional color.113 The idea that the people themselves decide the form of the political 112 113 Bruce Ackerman, We the People (Cambridge: Belknap Press, 2000). On this point, see Bellamy, Political Constitutionalism, 139. 52 existence of the community is of major significance, since they are the ones with a privileged discursive access to the political memory and narratives of the society. To stress constitution making as the only true democratic process, however, is to fail to acknowledge that it is only after the people start the normal, everyday business of politics that they can see themselves as the sovereign retained by the constitution as its ultimate reference point. Schmitt’s promise to resolve the issue of the coexistence of sovereignty and constitutionalism thus remains unfulfilled, with the main challenge in this task, that of establishing a continuous, normal, and institutionalized relationship between popular sovereignty and constitutional government, being largely left unmet. 53