Carl Schmitt, Mao Zedong and the Politics of Transition

Qi Zheng

• Publisher: Palgrave Macmillan
• Year: 2015
• ISBN:
  9781137466594
• Topic: Politics & International Relations
• Subtopic: Political History & Theory
• Index: Politics & International Relations

This book develops a new way of reading and benefiting from Schmitt's legal and political theories. It explores Schmitt's theories from the perspective of what I refer to as the politics of transition. It also contributes to identifying the real theoretical relationship between Schmitt and Mao.

1

Carl Schmitt in China

The interest in Carl Schmitt’s political theory among Chinese scholars can be demonstrated by the publication of Schmitt’s many works in Chinese¹ and of much secondary literature about him since the beginning of the twenty-first century. The introduction of Schmitt’s political theory in China has provoked a huge controversy about the significance of his theory to China. Indeed, no other political philosopher’s theory that has been introduced in China has caused as much.²

This chapter explores the justification for studying Schmitt’s theory in China. It reveals the reasons why political philosophers who are interested in philosophical contributions to practical life should consider Schmitt’s theory relevant for China. The first section develops a general idea of the nature of the politics of transition and discusses how Schmitt’s theory can enrich the understanding of the politics of transition. The discussion in the first section constitutes the theoretical basis for my argument in later sections of the chapter. The second and third sections separately explore the two different schools of the critique of Schmitt in China. One school criticizes Schmitt as either a fascist theorist or a political philosopher whose theory is uncomfortably similar to the theory of Mao’s that directly produced the Great Cultural Revolution. During the revolution, it is estimated that more than one million people were killed.³ Both charges, therefore, make it morally wrong to rely on Schmitt’s theory in contemporary China. I see this school as advancing a strong critique of Schmitt. The other advances a weak critique. The weak critics aim to demonstrate a complicated relationship between Schmitt’s theory, liberalism and Chinese liberalism. On the one hand, they usually acknowledge the significance of Schmitt’s theory for showing the importance of the role of a strong state, a role that is greatly ignored by Chinese liberalism.⁴ On the other hand, they criticize Schmitt for underestimating the ability of liberalism to build a strong state.

In contrast to these two schools of Chinese criticism of Schmitt, in the final two sections of this chapter I provide a justification for studying Schmitt’s political theory in the current Chinese context by analyzing the inability of Chinese liberalism to provide the theoretical resources to deal with real political problems faced by China today. The greatest problem that China currently faces is how to realize its democratic transition.⁵ ‘Democratic transition’ in the current Chinese context means a political transformation from an authoritarian to a democratic state. After decades of economic reform that aims to establish a market economy, China has been transformed from a totalitarian state to an authoritarian state.⁶ A totalitarian state penetrates every sphere of society. However, with the economic reform in China, the state has significantly withdrawn from society. China’s system has been transformed into an authoritarian system that ‘mixes statism with entrepreneurship, political monopoly with individual liberty, personalist power with legal procedure, repression with responsiveness, policy uniformity with decentralized flexibility, and message control with a media circus.’⁷ In order to further strengthen the protection of individual freedom, it is urgent to push the transition from an authoritarian system to a democratic state in China. Although the adoption of a new political form to shape the state probably cannot solve all the problems that China faces today, the radical transformation of the political form so as to make the state respect individual freedom is still desirable. It is in this sense that I define the democratic transition as one of the greatest problems that China currently faces. However, Chinese liberalism cannot provide sufficient theoretical resources to understand the nature of politics in this special Chinese context.

Section 1.4 argues that Chinese liberalism fails to capture the whole picture of political life, especially the content of politics in the founding and protecting moments of the politics of transition. In contrast, Schmitt’s political theory can provide some helpful elements for this issue. In the final section I analyze another problem with Chinese liberalism from the perspective of its understanding of a constitutional state and the relationship between law and politics. I also show how Schmitt’s theory can be beneficial to Chinese liberalism and to the political problem that China faces.

1.1 The politics of transition and Schmitt’s theory

What is the nature of political life when it is in a period of political transition? What can Schmitt’s theory tell us about the politics of transition? The exploration of these two questions makes the discussion of the justification of studying Schmitt’s theory in China possible in this chapter’s final two sections. And the exploration of the second question also provides some basic theoretical foundation for the analysis of Chinese criticism of Schmitt in Sections 1.2 and 1.3, since the soundness of any criticism of Schmitt should be based on a correct understanding of his theory.

The politics of transition centers on the political activity necessary for the transformation of political forms within a state. The founding moment of the politics of transition refers to the political moment that establishes a new political form. After the establishment of the new political form, it is possible that this new political order will be challenged by an enemy who has a different political agenda. Although in practice there might be no enemy challenging the newly established order and no need for the protecting moment, the protecting moment as a possibility cannot be totally eliminated. Therefore, the politics of transition should also include the protecting moment. These two moments constitute extraordinary political situations that are not totally regulated by the formal rules of the existing constitutional order.⁸

The two extraordinary political moments contain the possibility of conflict within the state. For the founding moment when an old political form is negated and a new form is established, it is reasonable to assume it is the resolution of a conflict between those who support the old form and those who commit to the new one. And the protecting moment indicates another extraordinary moment: when the state protects its political form following a challenge from an enemy with a different agenda and political form. Both moments are caused by the antagonism between two or even political forces with different political agendas within one political unity.⁹ To some extent, these two moments can be called civil war. As Schmitt defines it, ‘civil war is the war between brothers, because it happens within the same political unity and legal system with the conflicting parties simultaneously and firmly protecting and rejecting this political unity.’¹⁰

Besides these two moments, ordinary politics should also be included in the discussion of the model of the politics of transition in the following sense. Ordinary politics is the purpose of the founding moment. The founding moment aims to establish an ordinary politics that is under the guidance of constitutional laws. The goal of the protecting moment is also to resume the ordinary political and legal order. By being the purpose of the founding and protecting moments of the politics of transition, ordinary politics actually becomes a complementary part of that politics. Take the protecting moment of the politics of transition as an example. That moment presupposes the existence of the ordinary political order. If ordinary politics does not exist in the first place, to talk about protecting something that is not existent is meaningless. Therefore, all three moments are indispensable for the whole picture of the politics of transition.

Schmitt has neither directly explored the nature of ‘the politics of transition’ nor used the concept of the ‘founding moment’ or the concept of the ‘protecting moment.’ Nevertheless, his theory of constitution-making power, the state of exception, the concept of the political and other theories have given us some helpful insights to understand the details of the politics of transition that I have just briefly sketched.

The concept of constitution-making power in Schmitt’s theory relates directly to a political order’s founding moment. Schmitt writes that ‘the constitution-making power is the political will, whose power or authority is capable of making the concrete, comprehensive decision over the type and form of its own political existence.’¹¹ In order to be consistent with the principle of people’s self-determination, the subject of the constitution-making power in a democratic state should be the people. This power, therefore, is the capacity of the people to decide the most fundamental political forms of the state. The people in Schmitt’s theory refers to a political collectivity that has a common political consciousness of its political existence. The decision made by people through exercising constitution-making power is defined by Schmitt as the constitution. This decision is prior to the establishment of constitutional law. In contrast to the constitution as a fundamental political decision by the people, constitutional law refers to the formalist set of constitutional norms.¹² Take the Weimar constitution, for example. Schmitt argues that the decision for democracy, for the parliamentary-representative form of legislative authority and government and for a bourgeois Rechtsstaat is made by the German people ‘by virtue of its conscious political existence as a people.’¹³ These political decisions are the substance of the constitution and become the ‘prerequisite for all subsequent norms.’¹⁴

Along with the relevance of the constitution-making power for the founding moment, the state of exception is another important concept from Schmitt’s theory that is very helpful for understanding political life in the protecting moment of the politics of transition. One of Schmitt’s most famous slogans is that the ‘sovereign is he who decides on the exception.’¹⁵ The state of exception is an extreme situation when the sovereign decides whether the normal situation exists or not and what measures are to be taken so as to save the constitutional order.¹⁶ The sovereign rather than the sovereign people is the one who directly protects the constitutional order. In contrast to the sovereign people, who are a constituting force at the founding moment, the sovereign is a constituted entity; that is, the sovereign does not have the same enormous power as the sovereign people do. The sovereign people have the power and political will to change the fundamental political decision they have made in the founding moment; but although the sovereign as a constituted entity has enormous power to deal with a crisis moment, he cannot change the fundamental political decision in the constitutional law.

So far, we have explained the theoretical definition of the state of exception. The sort of situation that actually can be counted an emergency and requires the intervention of the sovereign will vary in political practice. However, the protecting moment in the politics of transition can naturally be classified as one of the most extreme types of the state of exception since it involves the radicalization of political tension and even the immediate possibility of disorder and political violence.

Both the concept of constitution-making power and the theory of the state of exception provide an understanding of a more dynamic relationship between political power and constitutional law. Law is not purely understood as a technical mechanism that aims to supervise political power. That is, law is not just a set of formal procedures that constitutes legitimacy for the operation of political power. Jurisprudence resists this technical thinking of law.¹⁷ The jurist, Schmitt believes, stands in opposition to economic-technical thinking.¹⁸ Schmitt’s concept of constitution-making power demonstrates the existence of political power as the foundation of constitutional law. The political decision by the people constitutes the legitimacy for the sovereign to protect the constitutional order in the protecting moment. When the sovereign intervenes in the legal order, the act of the sovereign is legitimate because it aims to protect the political decision made by the people at the founding moment. Schmitt’s theories, therefore, give us a more complicated picture of the relationship between law and political power in the extraordinary political situations of the politics of transition.

For the nature of politics in these two moments of the politics of transition, Schmitt’s concept of the political is significant. I have argued that the conflict between different forces that have commitments to different political forms in the founding and protecting moments is a strong possibility. Schmitt’s concept of the political captures the nature of extraordinary political activities in the politics of transition. Schmitt does not directly give us a definition of politics. Instead, he tries to define the nature of politics by understanding what the political means. To Schmitt, there are various independent spheres of human action. Each sphere has its own fundamental criteria to make it distinctive from others. Like the distinction between good and evil in morality, beautiful and ugly in aesthetics and profitable and unprofitable in economics, Schmitt proposes that ‘the specific political distinction to which political actions and motives can be reduced is that between friend and enemy.’¹⁹ To Schmitt, the action of a collective entity distinguishing between friend and enemy is the political. This distinction contains ‘the utmost degree of intensity of a union or separation, of an association or dissociation.’²⁰ So the political contains the possibility of leading to the conflict between the friend and the enemy. Schmitt’s definition of the political, therefore, fits neatly with the nature of the political activities in the founding and protecting moments of the politics of transition.

There are many other theoretical resources that Schmitt can provide to further develop the details of the politics of transition. Due...