The Contemporary Relevance of Carl Schmitt

Law, Politics, Theology

Matilda Arvidsson, Leila Brännström, Panu Minkkinen, Matilda Arvidsson, Leila Brännström, Panu Minkkinen

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317585572
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

What does Carl Schmitt have to offer to ongoing debates about sovereignty, globalization, spatiality, the nature of the political, and political theology? Can Schmitt's positions and concepts offer insights that might help us understand our concrete present-day situation? Works on Schmitt usually limit themselves to historically isolating Schmitt into his Weimar or post-Weimar context, to reading him together with classics of political and legal philosophy, or to focusing exclusively on a particular aspect of Schmitt's writings. Bringing together an international, and interdisciplinary, range of contributors, this book explores the question of Schmitt's relevance for an understanding of the contemporary world. Engaging the background and intellectual context in which Schmitt wrote his major works – often with reference to both primary and secondary literature unavailable in English – this book will be of enormous interest to legal and political theorists.

1 Carl Schmitt's definition of sovereignty as authorized leadership

Leila Brännström

DOI: 10.4324/9781315742243-3

Introduction

Political Theology from 1922 begins with Carl Schmitt’s definition of the sovereign as the one ‘who decides on the [state of] exception’ (Schmitt 1996a: 13/2005: 5). This definition is usually read as an attempt to point out the essential predicate of sovereignty and is made use of for identifying sovereignty’s historical instantiations and discussing its contemporary resurgence, waning or displacement (cf., for example, Butler 2004: 59; Bartelson 2014: 49–57). In such readings, ‘decisionism’ is taken as the ‘signature characteristic of sovereignty’ in the sense of a political act unrestrained by any legal considerations, which owing to its concrete effectiveness ‘renders a political subject into a legitimate sovereign’ (Brown 2010 a: 22–3; Kahn 2004: 263; Kahn 2011: 32; Croce and Salvatore 2013: 5, 17–18; cf. also, for example, Bartelson 2014: 41–49, Gross 2000: 1851; Bates 2006: 415–16).

The tendency to emphasize the a- or extra-legality of Schmitt’s sovereign decision, influential though it is, appears not to sit well with the fact that Schmitt characterizes his definition of sovereignty juristic and opens Political Theology with a criticism of approaches to law which are unable to offer legal answers in the face of ‘decisive’ questions of state and constitution, such as whether a state of emergency is at hand (Schmitt 1996a: 9, 13/2005: 4, 6). Schmitt also insists that the ‘fundamental problem of the concept of sovereignty’ is ‘the connection of actual power with the legally highest power’ and that ‘power proves nothing in law’ (Schmitt 1996a: 26/2005: 17–18). In fact, a key argument in Political Theology is that the decision on the state of exception is a legal decision if made by the authorized subject. Schmitt maintains that it is only from the point of view of ‘constitutional liberalism [rechtsstaatlichen Liberalismus]’, which assumes that ‘a decision in the legal sense’ must be ‘derived entirely from the content of a norm’, that the test of whether an emergency exists appears as a non-juristic one (Schmitt 1996a: 13–14/2005: 5–6).

One of the purposes of this chapter is to bring into view that a major concern in Political Theology is to suggest a conceptualization of law, which is not only capable of encompassing answers concerning extremely exceptional circumstances, but also of accurately describing the way in which the legal order operates. Rather than pitching sovereignty against law, Political Theology advances a particular understanding of law. However, while Schmitt devotes much effort to highlight the shortcomings and inconsistencies of the ‘liberal constitutional’ conception of law, he only gestures towards a different understanding which does not equate law with what can be derived from the body of legal norms and which can account for sovereign decisions. Instead of a fully fleshed-out alternative notion, Schmitt speaks of what is not derived from legal norms but is ‘accessible to jurisprudence [im Rahmen des Juristischen]’ (Schmitt 1996a: 19/2005: 12) or is to be understood ‘in the juristic or the legal sense [im Rechtssinne, im juristischen Sinne, im rechtlichen Sinne]’ (Schmitt 1996a; 14, 18, 38/2005: 6, 12, 32). Despite the lack of conceptual clarity, it is only by distinguishing the different conceptions of law concurrently at work in the text that an apparent paradox in Political Theology can be resolved: a decision can be within and beyond the bounds of law simultaneously because what is a- or extra-legal from a liberal constitutional point of view can be anchored in the legal order from a different understanding of law.

Schmitt is only able to offer a clear alternative to the liberal constitutional conception in his On the Three Types of Juristic Thought (hereinafter Three Types, Schmitt 2004) published more than a decade later, in 1934. In Three Types, Schmitt advances a ‘concrete-order approach [konkretes Ordnungsdenken]’ to law, which places its ultimate foundation and legitimacy in a given form of life in a community, in ‘a set of standards and models that are produced by social institutions in everyday life’ (Croce and Salvatore 2013: 158).

Although the understanding of law, politics and sovereignty that we find in Three Types is often seen as a turn away from the decisionism expressed in Political Theology (cf., for example, Croce and Salvatore 2013: 1, 13–29; Bates 2006: 415; Ungureanu 2008: 295), this chapter suggests that it is rather a clarification and development of it and that Schmitt’s notion of sovereignty in Political Theology is already inflected by concrete-order thinking.¹ This mode of thinking is implicit in the text and the structure of the argument and it is only by taking this approach into account that an ambiguity in Political Theology can be clarified. For Schmitt, it is only when the authorized subject of sovereignty makes an effective decision on the state of exception that ‘actual power’ and ‘the legally highest power’ come together. This, however, presupposes that the authorized subject can be identified prior to the decision. Even if Schmitt suggests that the question about the proper subject of sovereignty is ‘the whole question of sovereignty’, he does not clarify how this subject is to be localized (Schmitt 1996a: 14/2005: 6–7). The concrete-order approach gives us the key to this puzzle.

Website: Croce and Salvatore (2013) have convincingly demonstrated that Schmitt’s concrete-order perspective retains strong elements of decisionism. This chapter, in reverse, is drawing attention to the way in which concrete-order thinking infuses Schmitt’s deci-sionism in Political Theology. Despite our different readings of Political Theology, I completely agree with Croce and Salvatore’s proposition that Schmitt’s work on politics, law and the relation between these two spheres should in general be read through the lens of Three Types. Croce and Salvatore themselves pointed out the presence of concrete-order thinking in Constitutional Theory (Schmitt 2008; Croce and Salvatore 2013: 25–9) and David Bates (2006) has done that in relation to Roman Catholicism and Political Form (Schmitt 1996b).

The aim of this chapter is, however, not only to highlight that Schmitt’s sovereign decision is underpinned by concrete-order thinking and is not an, a-legal, extra-legal or illegal, law-and-order-creating decision ex nihilo. The purpose is also to read Schmitt’s definition as an intervention in a dispute about the future of the political rather than as an attempt to identify the essential attribute of sovereignty.³ Looked at from this angle, Schmitt is offering us the conceptual resources for a particular way of arranging political life and community, which, if influential enough, would constitute sovereignty in the way defined. Two questions that are addressed in this chapter are therefore the following: which way of approaching and ordering the political world is Schmitt promoting when offering his definition of sovereignty? What might be useful or appealing in Schmitt’s offering from a contemporary point of view?

In addition, the preface to the second edition of Political Theology indicates that concrete-order thinking should be taken into account when reading the book (cf. Schmitt 1996a: 8–9/2005: 2–4). Such a reading also seems in line with Schmitt’s claim in The Concept of the Political that political concepts such as sovereignty ‘have a political meaning’ (Schmitt 1963: 31/2007: 30–1; on Schmitt’s definitions more generally, see Croce and Salvatore 2013: 64).

This chapter proceeds with a short exposition of Schmitt’s notion of concrete-order thinking, after which Political Theology is read in light of this viewpoint, to clarify how Schmitt can present the sovereign as simultaneously standing inside and outside the legal order. Following this, Schmitt’s account of the decision on the state of exception is analyzed to shed light on how, and in what sense, sovereign decisions are claimed to be legal. Next, the chapter moves on to explore the particular way of ordering the political community, which Schmitt’s notion of sovereignty advances. And finally, Schmitt’s agenda is critically examined and its contemporary relevance is briefly discussed. It is suggested that the truly problematic feature of Schmitt’s notion of sovereignty, is not its purported a-, extra- or illegality, but the hierarchical structure of authority presupposed by it, the function of which is to control who can speak in the name of the people and negotiate the character of the socio-legal order.

Concrete-order thought

Despite the centrality of the concept, ‘concrete order’ remains underdeveloped and under-theorized in Three Types. What can be gathered is that it is an institution that is not constituted by legal fiat, but is established through repetitions of standardized conduct that the members of a social group de facto, maintain or are, at least, expected to maintain (see further Croce and Salvatore 2013: 30–45; Böckenförde 1984). Marriage, family, office, state bureaucracy, and the army, are some of the concrete orders mentioned in Three Types.

The most important feature of a concrete order is the sustaining of a ‘normal situation’. Concrete orders maintain stable normal situations by providing sedimented norms of conduct, which are usually complied with (cf. Schmitt 1934: 10–11, 19–24, 56/2004: 45–6, 53–7, 88). If a public servant, for instance, wants to be a normal and good public servant, she needs to do what is customary for her role (for the ‘normal figure’), which means that she has to act in accordance with established praxis in various ‘normal situations’ (cf., for example, Schmitt 1934 42–3/2004: 75–76). Normality, according to Schmitt, makes up the ‘legal substance [rechtliche Substanz]’ of the concrete order and offers an answer to the legal question of what should be considered fair, reasonable or required in various contexts (Schmitt 1934: 20, 50/2004: 54, 81). The function of the legal order is to crystallize, stabilize and protect the legal substance of concrete orders. Thus, the concrete-order perspective takes the norms of conduct in concrete orders as legally normative guidelines for legislative and judicial decision making.

The legal substance of concrete orders cannot be anything but under-determined, however. Such legal content can no more establish its own practical meaning in concrete historical situations than can a legal norm. To avoid or solve conflicts about the meaning of socio-legal normative content, a leadership principle (Führergedanken, Führergrundsatz) must be in place. Every concrete order has, or is tied to, a hierarchy of authority that ascends to a personal leader to whom the members of the order are meant to show loyalty and obedience (cf. Schmitt 1934: 50–2, 63–4/2004: 81–3, 94–5). In a concrete order, there is no strict separation between norm-based jurisdiction and actual leadership (cf. Schmitt 1934: 50–2/2004: 81–3). The role of the leader is to maintain and develop the legal substance of the concrete order. The decision making of the authority figure is legitimized and guided, although never completely, by the legal substance, at the same time as the concrete orders and their normality are renewed through the decisions. The decision rests on the order at the same time as the decision (re)creates the order: order and decision are thus the two intertwined poles within the concrete-order framework (cf. Schmitt 1934: 15–16/2004: 50–1).

The state is, in Schmitt’s words, ‘the institution of institutions’ and ‘the concrete order of orders’ (Schmitt 1934: 45–8, 57/2004: 78–9, 88). The state is an overarching institution, standing above and incorporating the civil society of concrete orders, under the auspices of which other institutions can be given protection and uphold their own order (cf. Schmitt 1934 45–8, 57/2004: 76–80, 88). The state is neither engendered through a sovereign decision nor constructed by legal norms. Like other institutions, the state is a concrete social and historical formation. And the authority to decide in the name of the state, in the form of law, cannot simply be derived from legal norms but must stem from concrete, personal nominations (Schmitt 1934: 15–17/2004: 50–1). We will come back to the role cut out in this scheme for the leader heading the concrete order of the state, the sovereign.

Law in Political Theology

The primary target of Political Theology, as well as that of Three Types, is the conception of law that Schmitt labelled ‘liberal constitutionalism’ in the first book and ‘19th century juristic positivism’ in the second, and which nowadays often travels under the rubric of ‘statutory positivism’ (cf., for example, Vinx 2016, Chapter 2 in this volume; Caldwell 1994). Schmitt’s criticism of this conception centres on the idea that law is a system of positively given norms, which can be interpreted and applied to concrete cases without taking the real o...