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    Carl Schmitt, Political Theology - Four Chapters on the Concept of Sovereignty + The Concept of the Political

    Johnathan R. Razorback

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    Date d'inscription : 12/08/2013
    Localisation : France

    Carl Schmitt, Political Theology - Four Chapters on the Concept of Sovereignty + The Concept of the Political

    Message par Johnathan R. Razorback le Ven 6 Nov - 20:10


    "Carl Schmitt is undoubtedly the most controversial German legal and political thinker of the twentieth century. If his fiends and foes agree on nothing else, they both acknowledge his brilliance. Even his detractors concede that he is one of the outstanding intellects of our time. Why, then, is he so little known in the English-speaking world? Who is Carl Schmitt ?"

    "Though his family expected him to prepare for the priesthood, he opted for law instead, beginning his university studies in Berlin in 1907 and receiving his doctorate in jurisprudence from the University of Strasbourg in 1910."

    "Whereas the omnipotent lawgiver was still associated with personal element of rule in the seventeenth and eighteenth centuries, the personal factor had been dissipated by the nineteenth and twentieth centuries. In reaction to monarchical legitimaty, efforts were made to divide political power, to spilt it upt, to set it against itself. This fragmentation occurred under the impact of such ideas as democratic legitimacy ; the division of power ; the notion that power must be checked by power, which is a central tenet of constitutional liberalism ; and the idea that the sovereignty of law should replace the sovereignty of men. Although Schmitt was prepared to accept modern constitutional developments, he was determined to reinstate the personal element in sovereignty and make it indivisible once more.
    To him this was essential, not because he harbored a romantic yearning for the past or because he valued contrariness for its own sake, but because he considered the restoration of the personal element vital for the preservation of the modern constitutional state. Convinced that the state is governed by the ever-present possibility of conflit, he held that resolute action was necessary to combat threats, for the state's raison d'être was to maintien its integrity in order to ensure order and stability.
    Given the threat of conflit and the uncertainty and distress this could engender, Schmitt focused his attention on crises in state's existence. A crisis, according to him, is "more interesting than the rule" because "it confirms not only the rule but also its existence, which derives only from the exception". He was quick to add, nevertheless, that because the exception is "distinguishable from a juristic chaos", it must be construed as a juristic problem and as such made subject to juristic considérations. It was on this critical issue that he differed from neo-Kantians such as Hans Kelsen who, in endeavoring to construct a legal system that was scientifically airtight, banished the exception

    "Schmitt rejected the prevailling view that it was not in the spirit of liberalism to deny any party the right to compete for power. He feared that existing electoral methods could and would be exploited by revolutionaries of the left and right in their quest for power ; such a concrete challenge demanded a realistic response. Building on his criterion of sovereignty as the ability to decide on the exception, including the decision to designate the domestic enemy, and on his latitudinarian interpretation of article 48, Schmitt formulated in the critical year 1932 his notion of the "equal chance", which aimed at banishing extreme political movements from the political arena.
    Arguing in Legalität and Legitimität that every constitution embodies principles that are sacrosanct, principles that mat include liberalisme, private property, and religious toleration, Schmitt opposed the view of those who interpreted the constitution in a "value-free" and "legalistic" fashion. [...] A value-neutral and legalistic interpretation of the constitution facilitated its subversion. Having once gained power, a militant party would not hesitate to exercice sovereignty in order to transform itself into the state. By insisting that a constitution by definition does not aim at its self-destruction, Schmitt concluded that an equal chance should be accorded only to those parties committed to the preservation of the existing constitutional order

    "In his endeavor to defuse political tensions in society, he rejected the idea of permitting negative political parties to utilize bourgeois electoral methods to capture the state and also opted for a separation of Church and state."

    "The Relationship between protection and obedience is central to Schmitt's thinking: so long as the sovereign is in the position to protect the subject, the latter is bound to obey. In this regard, too, Schmitt deserves to be called the Hobbes of the twentieth century."

    "I received assistance from a number of people in preparing this translation, including Carl Schmitt."
    -George Schwab, Introduction à Carl Schmitt, Théologie politique - Quatre chapitres sur le concept de souveraineté, 1922. D'après la traduction anglaise de George Schwab, The MIT Press, Cambridge, Massachusetts, and London, England, 1985, 70 pages.

    "Sovereign is he who decides on the exception.

    Only this definition can do justice to a borderline concept. Contrary to the imprecise terminology that is found in popular literature, a borderline concept is not a vague concept, but one pertaining to the outermost sphere. This definition of sovereignty must therefore be associated with a borderline case and not with routine. It will soon become clear that the exception is to be understood to refer to a general concept in the theory of the state, and not merely to a construct applied to any emergency decree or state of siege
    ." (p.5)

    "The decision on the exception is a decision in the true sense of the word. Because a general norm, as represented by an ordinary legal prescription, can never encompass a total exception, the decision that a real exception exists cannot therefore be entirely derived from this norm. When Robert von Moh
    said that the test of whether an emergency exists cannot be a juristic one, he assumed that a decision in the legal sense must be derived entirely from the content of a norm. But thls is the question. In the general sense in which Mohl articulated his argument, his notion is only an expression of constitutional liberalism and fails to apprehend the independent meaning of the decision.
    From a practical or a theoretical perspective, it really does not matter whether an abstract scheme advanced to define sovereignty (namely, that sovereignty is the highest power, not a derived power) is acceptable. About an abstract concept there will in general be no argument, least of all in the history of sovereignty. What is argued about is the concrete application, and that means who decides in a situation of conflict what constitutes the public
    interest or interest of the state, public safety and order, le
    salut public, and so on. The exception, which is not codified in the existing legal order, can at best be characterized as a case of extreme peril, a danger to the existence of the state, or the like. But it cannot be circumscribed factually and made to conform to a preformed law.
    It is precisely the exception that makes relevant the subject of sovereignty, that is, the whole question of sovereignty. The precise details of an emergency cannot be anticipated, nor can one spell out what may take place in such a case, especially when it is truly a matter of an extreme emergency and of how it is to be eliminated. The precondition as well as the content of jurisdictional competence in such a case must necessarily be unlimited. From the liberal constitutional point of view, there would be no jurisdictional competence at all. The most guidance the constitution can provide is to indicate who can act in such a case. If such action is not subject to controls, if it is not hampered in some way by checks and balances, as is the case in a liberal
    constitution, then it is clear who the sovereign is. He decides whether there is an extreme emergency as well as what must
    be done to eliminate it. Although he stands outside the normally valid legal system, he nevertheless belongs to it, for it is he who
    must decide whether the constitution needs to be suspended in its entirety.' All tendencies of modem constitutional development
    point toward eliminating the sovereign in this sense. The ideas of Hugo Krabbe and Hans Kelsen, which will be treated in the
    following chapter, are in line with this development. But whether the extreme exception can be banished from the world is not a
    juristic question. Whether one has confidence and hope that it can be eliminated depends on philosophical, especially on philosophical-
    historical or metaphysical, convictions
    ." (p.6-7)

    "That this concept [Sovereignty] relates to the critical case, the exception, was long ago recopzed by Jean Bodin. He stands at the beginning of the modem theory of the state because of his work "Of the True Marks of Sovereignty" (chapter 10 of the first book of the Republic) rather than because of his often-cited definition ("sovereignty is the absolute and perpetual power of a republic"). He discussed his concept in the context of many practical examples, and he always returned to the question: To what extent is the sovereign bound to laws, and to what extent is he responsible to the estates? To this last, all-important question he replied that commitments are binding because they rest on natural law; but in emergencies the tie to general natural principles ceases. In general, according to him, the prince is duty bound toward the estates or the people only to the extent of fulfilling his promise in the interest of the people ; he is not so bound under conditions of urgent necessity. These are by no means new theses. The decisive point about Bodin's concept is that by referring to the emergency, he reduced his analysis of the relationships between prince and estates to a simple either/or.
    This is what is truly impressive in his definition of sovereignty ; by considering sovereignty to be indivisible, he finally settled the question of power in the state. His scholarly accomplishment and the basis for his success thus reside in his having incorporated the decision into the concept of sovereignty. Today there is hardly any mention of the concept of sovereignty that does not contain the usual quotation from Bodin. But nowhere does one find cited the core quote from that chapter of
    the Republic. Bodin asked if the commitments of the prince to the estates or the people dissolve his sovereignty. He answered by referring to the case in which it becomes necessary to violate such commitments, to change laws or to suspend them entirely according to the requirements of a situation, a time, and a people. If in such cases the prince had to consult a senate or the people before he could act, he would have to be prepared to let his subjects dispense with him. Bodin considered this an absurdity because, according to him, the estates were not masters over the laws; they in turn would have to permit their prince to dispense with them. Sovereignty would thus become a play between two parties: Sometimes the people and sometimes the prince would rule, and that would be contrary to all reason and all law. Because the authority to suspend valid law-be it in general or in a specific case-is so much the actual mark of sovereignty, Bodin wanted to derive from this authority all other characteristics (declaring war and malung peace, appointing civil servants, right of pardon, final appeal, and so on)." (p.8-9)

    "Sovereignty (and thus the state itself) resides in deciding this controversy, that is, in determining definitively what constitutes public order and security, in determining when they are disturbed, and so on. Public order and security manifest themselves very differently in reality, depending on whether a militaristic bureaucracy, a self-governing body controlled by the spirit of commercialism, or a radical party organization decides when there is order and security and when it is threatened or disturbed. After all, every legal order is based on a decision, and also the concept of the legal order, which is applied as someting self-evident, contains within it the contrast of the two distinct elements of the juristic -norm and decision. Like every other order, the legal order rest on a decision and not on a norm.
    Whether God alone is sovereign, that is, the one who acts as his acknowledged representative on earth, or the emperor, or prince, or the people, meaning those who identify themselves directly of sovereignty, at the application of the concept to a concrete situation
    ." (p.10)

    "Article 48 grants unlimited power. If applied without check, it would grant exceptional powers in the same way as article 14 of the [French] Charter of 1815, which made the monarch sovereign." (p.11)

    "There exists no norm that is applicable to chaos. For a legal order to make sense, a normal situation must exist, and he is sovereign who definitely decides whether this normal situation actually exists." (p.13)

    "The sovereign produces and guarantees the situation in its totality. He has the monopoly over this last decision. Therein resides the essence of the state's sovereignty, which must be juristically defined correctly, not as the monopoly to coerce or to rule, but as the monopoly to decide. The exception reveals most dearly the essence of the state's authority. The decision parts here from the legal norm, and (to formulate it paradoxically) authority proves that to produce law it need not be based on law." (p.13)

    "The exception was something incommensurable to John Locke's doctrine of the constitutional state and the rationalist eighteenth century. The vivid awareness of the meaning of the exception was reflected in the doctrine of natural law of the seventeenth century was soon lost in the eighteenth century, when a relatively lasting order was established. Emercency law as no law at all for Kant. The contemporary theory of the state reveals the interesting spectacle of the two tendencies facing one another, the rationalist tendancy, which ignores the emergency, and the natural law tendency, which ignores the emercy and emanates from an essentially different set of ideas. That a neo-Kantian like Kelsen does not know what to do with the exception is obvious. But it should be of interest to the rationalist that the legal system itself can anticipate the exception and can "suspend itself". That a norm of an order or a point of reference 'establishes itself" appears plausible to the exponents of this kind of juristic rationalism. But how the systematic unity and order can suspend itself in a concrete case is difficult to construe, and yet it remains a juristic problem as long as the exception is distinguishable from a juristic chaos, from any kind of anarchy. The tendacy of liberal constitutionalism to regulate the exception as precisely as possible means, after all, the attempt to spell out in detail the case in which law suspend itself. From where does the law obtain this force, and how is it logically possible that a norm is valid except for one concrete case that it cannot factually determine in any definitive manner ?" (p.14)

    "A philosophy of concrete life must not withdraw from the exception and the extreme case, but must be interested in it to the highest degree. The exception can be more important to it than the rule, not because of a romantic irony for the paradox, but because the seriousness of an insight goes deeper than the clear generalizations inferred from what ordinarily repeats itself. The exception is more interesting than the rule. The rule proves nothing ; the exception proves everything: it confirms not only the rule but also its existence, which derives only from the exception. In the exception the power of real life breaks through the crust of a mechanism that has become torpid by repetition." (p.15)

    "Kelsen solved the problem of the concept of sovereignty by negating it. The result of his deduction is that "the concept of sovereignty must be radically repressed." This is in fact the old liberal negation of the state vis-à-vis law and the disregard of the independent problem of the realization of law." (p.21)

    "All significant concepts of the modem theory of the state are secularized theological concepts not only because of their historical development-in which they were transferred from theology to the theory of the state, whereby, for example, the omnipotent God became the omnipotent lawgiver-but also because of their systematic structure, the recognition of which is necessary for a sociological consideration of these concepts. The exception in jurisprudence is analogous to the miracle in theology. Only by being aware of this analogy can we appreciate the manner in which the philosophical ideas of the state developed in the last centuries." (p.36)

    "The idea of the modem constitutional state triumphed together with deism, a theology and metaphysics that banished the miracle from the world. This theology and metaphysics rejected not only the transgression of the laws of nature through an exception brought about by direct intervention, as is found in the idea of a miracle, but also the sovereign's direct intervention in a valid legal order. The rationalism of the Enlightenment rejected the
    exception in every form
    ." (p.37)

    "The politicization of theological concepts, especially with respect to the concept of sovereignty, is so striking that it has not escaped any true expert on [Rousseau] writings. Said Emile Boutmy, "Rousseau applies to the sovereign the idea that the philosophes hold of God: He may do anything that he wills but he may not will evil."." (p.46)

    "De Maisue spoke with particular fondness of sovereignty, which essentially meant decision. To him the relevance of the state rested on the fact that it provided a decision, the relevance of the Church on its rendering of the last decision that could not be appealed. Infallibility was for him the essence of the decision that cannot be appealed, and the infallibility of the spiritual order was of the same nature as the sovereignty of the state order. The two words infallibility and sovereignty were "perfectly synonymous."' To him, every sovereignty acted as if it were infallible, every government was absolute-a sentence that an anarchist could pronounce verbatim, even if his intention was an entirely different one. In this sentence there lies the clearest antithesis
    in the entire history of political ideas. All the anarchist theories from Babeuf to Bakunin, Kropotkin, and Otto Gross revolve around the one axiom: "The people are good, but the magistrate is corruptible." De Maistre asserted the exact opposite, namely, that authority as such is good once it exists:
    "Any government is good once it is established," the reason being that a decision is inherent in the mere existence of a governmental authority, and the decision as such is in turn valuable precisely because, as far as the most essential issues are concerned, making a decision is more important than how a decision is made." (p.55-56)

    "Every political idea in one way or another takes a position on the "nature" of man and presupposes that he is either "by nature good" or "by nature evil." This issue can only be clouded by pedagogic or economic explanations, but not evaded. For the rationalism of the Enlightenment, man was by nature ignorant and rough, but educable. It was thus on pedagogic grounds that the ideal of a "legal despotism" was justified: Uneducated humanity is educated by a legislator (who, according to Rousseau's Social Contract, was able "to change the nature of man"); or unruly nature could be conquered by Fichte's "tyrant," and the state became, as Fichte said with naive brutalty, an "educational factory". Marxist socialism considers the question of the nature of man incidental and superfluous because it believes that changes in economic and social conditions change man. To the committed atheistic anarchists, man is decisively good, and all evil is the result of theological thought and its derivatives, including all ideas On the Counterrevolutionary Philosophy of the State concerning authority, state, and government. In the Social Contract, with whose constructions in terms of the theory of the state de Maistre and Bonald were primarily concerned, man was by no means conceived to be by nature good; as Ernest Seilliire has so splendidly demonstrated, only Rousseau's later novels unfolded the celebrated Rousseauian thesis of the good man. Donoso Cortés, in contrast, opposed Proudhon, whose antitheological
    anarchism would have to be derived consistently from the axiom of the good man, whereas the starting point for the Catholic Spaniard was the dogma of Original Sin. But Donoso Cortés radicalized this polemically into a doctrine of the absolute sinfulness and depravity of human nature. The dogma of Original
    Sin promulgated by the Council of Trent is not radical in any simple way. In contrast to the Lutheran understanding, the dogma asserts not absolute worthlessness but only distortion, opacity, or injury and leaves open the possibility of the natural good. Abbi Gaduel, who criticized Donoso Cortis from the standpoint of dogma, was therefore right when he voiced misgivings about his exaggeration of the natural evil and unworthiness of man. Yet it was certainly not right to have overlooked the fact that for Donoso Cortis this was a religious and political decision of
    colossal actuality, and not just the elaboration of dogma
    ." (p.56-57)

    "According to Donoso Cortès, it was characteristic of bourgeois liberalism not to decide in this battle [between Catholicism and atheist socialism] but instead to begin a discussion. He straightforwardly defined the bourgeoisie as a "discussing class", une clasa discutidora. It has thus been sentenced. This definition contains the class characteristic of wanting to evade the decision." (p.59)

    "The essence of liberalism is negociation, a cautious half measure, in the hope that the definitive dispute, the decisive bloddy battle, can be transformed into a parliamentary debate and permit the decision to be suspended forever in an everlasting discussion." (p.63)

    "Today nothing is more modem than the onslaught against the political. American financiers, industrial technicians, Marxist socialists, and anarchic-syndicalist revolutionaries unite in demanding that the biased rule of politics over unbiased economic management be done away with. There must no longer be political problems, only organizational-technical and economic-sociological tasks. The kind of economic-technical thinking that prevails today is no longer capable of perceiving a political idea. The modem state seems to have actually become what Max Weber envisioned: a huge industrial plant. Political ideas are generally recognized only when groups can be identified that have a plausible economic interest in turning them to their advantage. Whereas, on the one hand, the political vanishes into the economic or technical-organizational, on the other hand the political dissolves into the everlasting discussion of cultural and philosophical-historical commonplaces, which, by aesthetic characterization, identify and accept an epoch as classical, romantic, or baroque. The core of the political idea, the exacting moral decision, is evaded in both." (p.65)
    -Carl Schmitt, Théologie politique - Quatre chapitres sur le concept de souveraineté, 1922. D'après la traduction anglaise de George Schwab, The MIT Press, Cambridge, Massachusetts, and London, England, 1985, 70 pages.


    «You'll have to think harder than you've ever done before, because you will be on your own -relying on your own judgment and the logic of the arguments you hear or consider, rejecting all authorities and all bromides, and taking nothing on faith. »  
    -Ayn Rand.

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