Notes on Carl Schmitt’s Political Theology, Ch. 2 and 3

Political Theology (1922), Carl Schmitt

From the Stanford Encyclopedia of Philosophy:

“Carl Schmitt (1888–1985) was a conservative German legal, constitutional, and political theorist. Schmitt is often considered to be one of the most important critics of liberalism, parliamentary democracy, and liberal cosmopolitanism. But the value and significance of Schmitt’s work is subject to controversy, mainly due to his intellectual support for and active involvement with National Socialism.”

Ch. 2 Problem of Sovereignty as the Problem of the Legal Form of the Decision

In this chapter, Schmitt continues to explore the meaning of sovereignty and its relationship to the state and to law. He summarizes and deconstructs the several liberal theories of sovereignty, and concludes with an embrace of Hobbes and a “decisionist” model of law and the state.

He responds to several different political philosophers, contemporaries of his, including Kelson, Hugo Krabbe, Otto von Gierke, and Kurt Wolzendorff. In general, the first two emphasize the rule of law as the defining feature of the state. Von Gierke goes a different direction, stating that the state expresses the will of the people. Schmitt points out a variety of problems in his contemporaries’ theories, from a false sense of unity in Kelson to a risk of authoritarianism in Wolzendorff.  He ends with a critique of objectivity as a characteristic of the state and law:

“The multifarious theories of the concept of sovereignty – those of Krabbe, Preuss, Keslen – demand such an objectivity.  They agree that all personal elements must be eliminated from the concept of the state. For them, the personal and the command elements belong together.” (29)

“All these objections fail to recognize that the conception of personality and its connection with formal authority arose from a specific juristic interest, namely, an especially clear awareness of what the essence of the legal decision entails.” (30) Schmitt then points out that the aforementioned theorists do not address who has the authority to execute the law.

He finishes the chapter by coining a new term, decisionist, to refer to Hobbes: “The form that he sought lies in the concrete decision, one that emanates from a particular authority.  In the independent meaning of the decision, the subject of the decision has an independent meaning, apart from the question of content.  What matters for the reality of legal life is who decides.”

Chapter 3 – Political Theology

Schmitt starts this chapter by explaining that the modern theory of the state is continuous with and has replaced theology: “The omnipotent God became the omnipotent lawgiver.”(36) With this shift, he also makes the analogy between the miracle in theology and the state of exception.

He goes on to explain how Enlightenment rationality “rejected the exception in every form.”(37) He later explains, “the sovereign, who in the deistic view of the world, even if conceived as residing outside the world, had remained the engineer of the great machine, has been radically pushed aside.  The machine now runs by itself.” (48)

Despite the rejection of the state of exception, the state is omnipresent:

“… whoever takes the trouble of examining the public law literature of positive jurisprudence of its basic concepts and arguments will see that the state intervenes everywhere.  At times it does so as a deux ex machina, to decide according to positive statute a controversy that the independent act of juristic perception failed to bring to a generally plausible solution; at other times it does so as the graceful and merciful lord who proves by pardons and amnesties his supremacy over his own laws.  There always exists the same inexplicable identity: lawgiver, executive power, police, pardoner, welfare institution.” (38)

“If viewed from this perspective of the history of ideas, the development of the nineteenth century theory of the state displays two characteristic moments: the elimination of all theistic and transcendental conceptions and the formulation of a new concept of legitimacy. The traditional principle of legitimacy obviously lost all validity… Since 1848 the theory of public law has become ‘positive,’ and behind this word is usually hidden its dilemma; or the theory has propounded in different paraphrases the idea that all power resides in the pouvoir constituant [constituent power] of the people, which means that the democratic notion of legitimacy has replaced the monarchical.” (51)

Schmitt concludes with a return to Hobbes and Cortes, pointing out that for Cortes, “there was thus only one solution: dictatorship.” And, finally, Schmitt repeats the Latin quote from Hobbes, “Autoritas, non veritas facit legem,” or Authority, not virtue makes the law.

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