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Carl Schmitt’s Decisionism (Paul Hirst)

Carl Schmitt’s Decisionism

Paul Hirst

Since 1945 Western nations have witnessed a dramatic reduction in the variety of positions in political theory and jurisprudence. Political argument has been virtually reduced to contests within liberal-democratic theory. Even radicals now take representative democracy as their unquestioned point of departure. There are, of course, some benefits following from this restriction of political debate. Fascist, Nazi and Stalinist political ideologies are now beyond the pale. But the hegemony of liberal-democratic political agreement tends to obscure the fact that we are thinking in terms which were already obsolete at the end of the nineteenth century.

Nazism and Stalinism frightened Western politicians into a strict adherence to liberal democracy. Political discussion remains excessively rigid, even though the liberal-democratic view of politics is grossly at odds with our political condition. Conservative theorists like Hayek try to re-create idealized political conditions of the mid nineteenth century. In so doing, they lend themselves to some of the most unsavoury interests of the late twentieth century – those determined to exploit the present undemocratic political condition. Social-democratic theorists also avoid the central question of how to ensure public accountability of big government. Many radicals see liberal democracy as a means to reform, rather than as what needs to be reformed. They attempt to extend governmental action, without devising new means of controlling governmental agencies. New Right thinkers have reinforced the situation by pitting classical liberalism against democracy, individual rights against an interventionist state. There are no challenges to representative democracy, only attempts to restrict its functions. The democratic state continues to be seen as a sovereign public power able to assure public peace.

The terms of debate have not always been so restricted. In the first three decades of this century, liberal-democratic theory and the notion of popular sovereignty through representative government were widely challenged by many groups. Much of this challenge, of course, was demagogic rhetoric presented on behalf of absurd doctrines of social reorganization. The anti-liberal criticism of Sorel, Maurras or Mussolini may be occassionally intriguing, but their alternatives are poisonous and fortunately, no longer have a place in contemporary political discussion. The same can be said of much of the ultra-leftist and communist political theory of this period.

Other arguments are dismissed only at a cost. The one I will consider here – Carl Schmitt’s ‘decisionism’ – challenges the liberal-democratic theory of sovereignty in a way that throws considerable light on contemporary political conditions. His political theory before the Nazi seizure of power shared some assumptions with fascist political doctrine and he did attempt to become the ‘crown jurist’ of the new Nazi state. Nevertheless, Schmitt’s work asks hard questions and points to aspects of political life too uncomfortable to ignore. Because his thinking about concrete political situations is not governed by any dogmatic political alternative, it exhibits a peculiar objectivity.

Schmitt’s situational judgement stems from his view of politics or, more correctly, from his view of the political as ‘friend-enemy’ relations, which explains how he could change suddenly from contempt for Hitler to endorsing Nazism. If it is nihilistic to lack substantial ethical standards beyond politics, then Schmitt is a nihilist. In this, however, he is in the company of many modern political thinkers. What led him to collaborate with the Nazis from March 1933 to December 1936 was not, however, ethical nihilism, but above all concern with order. Along with many German conservatives, Schmitt saw the choice as either Hitler or chaos. As it turned out, he saved his life but lost his reputation. He lived in disrepute in the later years of the Third Reich, and died in ignominy in the Federal Republic. But political thought should not be evaluated on the basis of the authors’ personal political judgements. Thus the value of Schmitt’s work is not diminished by the choices he made.

Schmitt’s main targets are the liberal-constitutional theory of the state and the parliamentarist conception of politics. In the former, the state is subordinated to law; it becomes the executor of purposes determined by a representative legislative assembly. In the latter, politics is dominated by ‘discussion,’ by the free deliberation of representatives in the assembly. Schmitt considers nineteenth-century liberal democracy anti-political and rendered impotent by a rule-bound legalism, a rationalistic concept of political debate, and the desire that individual citizens enjoy a legally guaranteed ‘private’ sphere protected from the state. The political is none of these things. Its essence is struggle.

In The Concept of the Political Schmitt argues that the differentia specifica of the political, which separates it from other spheres of life, such as religion or economics, is friend-enemy relations. The political comes into being when groups are placed in a relation of emnity, where each comes to perceive the other as an irreconcilable adversary to be fought and, if possible, defeated. Such relations exhibit an existential logic which overrides the motives which may have brought groups to this point. Each group now faces an opponent, and must take account of that fact: ‘Every religious, moral, economic, ethical, or other antithesis transforms itself into a political one if it is sufficiently strong to group human beings effectively according to friends and enemy.’ The political consists not in war or armed conflict as such, but precisely in the relation of emnity: not competition but confrontation. It is bound by no law: it is prior to no law.

For Schmitt: ‘The concept of the state presupposes the concept of the political.’ States arise as a means of continuing, organizing and channeling political struggle. It is political struggle which gives rise to political order. Any entity involved in friend-enemy relations is by definition political, whatever its origin or the origin of the differences leading to emnity: ‘A religious community which wages wars against members of others religious communities or engages in other wars is already more than a religious community; it is a political entity.’ The political condition arises from the struggle of groups; internal order is imposed to pursue external conflict. To view the state as the settled and orderly administration of a territory, concerned with the organization of its affairs according to law, is to see only the stabilized results of conflict. It is also to ignore the fact that the state stands in a relation of emnity to other states, that it holds its territory by means of armed force and that, on this basis of a monopoly of force, it can make claims to be the lawful government of that territory. The peaceful, legalistic, liberal bourgeoisie is sitting on a volcano and ignoring the fact. Their world depends on a relative stabilization of conflict within the state, and on the state’s ability to keep at bay other potentially hostile states.

For Hobbes, the political state arises from a contract to submit to a sovereign who will put an end to the war of all against all which must otherwise prevail in a state of nature – an exchange of obediance for protection. Schmitt starts where Hobbes leaves off – with the natural condition between organized and competing groups or states. No amount of discussion, compromise or exhortation can settle issues between enemies. There can be no genuine agreement, because in the end there is nothing to agree about. Dominated as it is by the friend-enemy alternative, the political requires not discussion but decision. No amount of reflection can change an issue which is so existentially primitive that it precludes it. Speeches and motions in assemblies should not be contraposed to blood and iron but with the moral force of the decision, because vacillating parliamentarians can also cause considerable bloodshed.

In Schmitt’s view, parliamentarism and liberalism existed in a particular historical epoch between the ‘absolute’ state of the seventeenth century and the ‘total state’ of the twentieth century. Parliamentary discussion and a liberal ‘private sphere’ presupposed the depoliticization of a large area of social, economic and cultural life. The state provided a legally codified order within which social customs, economic competition, religious beliefs, and so on, could be pursued without becoming ‘political.’ ‘Politics’ as such ceases to be exclusively the atter of the state when ‘state and society penetrate each other.’ The modern ‘total state’ breaks down the depoliticization on which such a narrow view of politics could rest:

 

Heretofore ostensibly neutral domains – religion, culture, education, the economy – then cease to be neutral. . . Against such neutralizations and depoliticizations of important domains appears the total state, which potentially embraces every domain. This results in the identity of the state and society. In such a state. . . everything is at least potentially political, and in referring to the state it is no longer possible to assert for it a specifically political characteristic.

 

Democracy and liberalism are fundamentally antagonistic. Democracy does away with the depoliticizations characteristic of rule by a narrow bourgeois stratum insulated from popular demands. Mass politics means a broadening of the agenda to include the affairs of all society – everything is potentially political. Mass politics also threatens existing forms of legal order. The politicization of all domains increases pressure on the state by multiplying the competing interests demanding action; at the same time, the function of the liberal legal framework – the regulating of the ‘private sphere’ – become inadequate. Once all social affairs become political, the existing constitutional framework threatens the social order: politics becomes a contest of organized parties seeking to prevail rather than to acheive reconciliation. The result is a state bound by law to allow every party an ‘equal chance’ for power: a weak state threatened with dissolution.

Schmitt may be an authoritarian conservative. But his diagnosis of the defects of parliamentarism and liberalism is an objective analysis rather than a mere restatement of value preferences. His concept of ‘sovereignty’ is challenging because it forces us to think very carefully about the conjuring trick which is ‘law.’ Liberalism tries to make the state subject to law. Laws are lawful if properly enacted according to set procedures; hence the ‘rule of law.’ In much liberal-democratic constitutional doctrine the legislature is held to be ‘sovereign’: it derives its law-making power from the will of the people expressed through their ‘representatives.’ Liberalism relies on a constituting political moment in order that the ‘sovereignty’ implied in democratic legislatures be unable to modify at will not only specific laws but also law-making processes. It is therefore threatened by a condition of politics which converts the ‘rule of law’ into a merely formal doctrine. If this ‘rule of law’ is simply the people’s will expressed through their representatives, then it has no determinate content and the state is no longer substantially bound by law in its actions.

Classical liberalism implies a highly conservative version of the rule of law and a sovereignty limited by a constitutive political act beyond the reach of normal politics. Democracy threatens the parliamentary-constitutional regime with a boundless sovereign power claimed in the name of the ‘people.’ This reveals that all legal orders have an ‘outside’; they rest on a political condition which is prior to and not bound by the law. A constitution can survive only if the constituting political act is upheld by some political power. The ‘people’ exist only in the claims of that tiny minority (their ‘representatives’) which functions as a ‘majority’ in the legislative assembly. ‘Sovereignty’ is thus not a matter of formal constitutional doctrine or essentially hypocritical references to the ‘people’; it is a matter of determining which particular agency has the capacity – outside of law – to impose an order which, because it is political, can become legal.

Schmitt’s analysis cuts through three hundred years of political theory and public law doctrine to define sovereignty in a way that renders irrelevant the endless debates about principles of political organization or the formal constitutional powers of different bodies.

 

From a practical or 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 be no argument. . . 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.

 

Brutally put: ‘ Sovereign is he who decides on the exception.’ The sovereign is a definite agency capable of making a decision, not a legitimating category (the ‘people’) or a purely formal definition (plentitude of power, etc.). Sovereignty is outside the law, since the actions of the sovereign in the state of exception cannot be bound by laws since laws presuppose a normal situation. To claim that this is anti-legal is to ignore the fact that all laws have an outside, that they exist because of a substantiated claim on the part of some agency to be the dominant source of binding rules within a territory. The sovereign determines the possibility of the ‘rule of law’ by deciding on the exception: ‘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.’

Schmitt’s concept of the exception is neither nihilistic nor anarchistic, it is concerned with the preservation of the state and the defence of legitimately constituted government and the stable institutions of society. He argues that ‘ the exception is different from anarchy and chaos.’ It is an attempt to restore order in a political sense. While the state of exception can know no norms, the actions of the sovereign within the state must be governed by what is prudent to restore order. Barbaric excess and pure arbitrary power are not Schmitt’s objecty. power is limited by a prudent concern for the social order; in the exception, ‘order in the juristic sense still prevails, even if it is not of the ordinary kind.’ Schmitt may be a relativist with regard to ultimate values in politics. But he is certainly a conservative concerned with defending a political framework in which the ‘concrete orders’ of society can be preserved, which distinguishes his thinking from both fascism and Nazism in their subordination of all social institutions to such idealized entities as the Leader and the People. For Schmitt, the exception is never the rule, as it is with fascism and Nazism. If he persists in demonstrating how law depends on politics, the norm on the exception, stability on struggle, he points up the contrary illusions of fascism and Nazism. In fact, Schmitt’s work can be used as a critique of both. The ruthless logic in his analsysis of the political, the nature of soveriegnty, and the exception demonstrates the irrationality of fascism and Nazism. The exception cannot be made the rule in the ‘total state’ without reducing society to such a disorder through the political actions of the mass party that the very survival of the state is threatened. The Nazi state sought war as the highest goal in politics, but conducted its affairs in such a chaotic way that its war-making capacity was undermined and its war aims became fatally overextended. Schmitt’s friend-enemy thesis is concerned with avoiding the danger that the logic of the political will reach its conclusion in unlimited war.

Schmitt modernizes the absolutist doctrines of Bodin and Hobbes. His jurisprudence restores – in the exception rather than the norm – the sovereign as uncommanded commander. For Hobbes, lawas are orders given by those with authority – authoritas non veritas facit legem. Confronted with complex systems of procedural limitation in public law and with the formalization of law into a system, laws become far more complex than orders. Modern legal positivism could point to a normal liberal-parliamentary legal order which did and still does appear to contradict Hobbes. Even in the somewhat modernized form of John Austin, the Hobbesian view of sovereignty is rejected on all sides. Schmitt shared neither the simplistic view of Hobbes that this implies, nor the indifference of modern legal positivism to the political foundation of law. He founded his jurisprudence neither on the normal workings of the legal order nor on the formal niceties of constitutional doctrine, but on a condition quite alien to them. ‘Normalcy’ rests not on legal or constitutional conditions but on a certain balance of political forces, a certain capacity of the state to impose order by force should the need arise. This is especially true of liberal-parliamentary regimes, whose public law requires stablization of political conflicts and considerable police and war powers even to begin to have the slightest chance of functioning at all. Law cannot itself form a completely rational and lawful system; the analysis of the state must make reference to those agencies which have the capacity to decide on the state of exception and not merely a formal plentitude of power.

In Political Theology Schmitt claims that the concepts of the modern theory of the state are secularized theological concepts. This is obvious in the case of the concept of sovereignty, wherein the omnipotent lawgiver is a mundane version of an all-powerful God. He argues that liberalism and parliamentarism correspond to deist views of God’s action through constant and general natural laws. His own view is a form of fundamentalism in which the exception plays the same role in relation to the state as the miracles of Jesus do in confirming the Gospel. The exception reveals the legally unlimited capacity of whoever is sovereign within the state. In conventional, liberal-democratic doctrine the people are sovereign; their will is expressed through representatives. Schmitt argues that modern democracy is a form of populism in that the people are mobilized by propaganda and organized interests. Such a democracy bases legitimacy on the people’s will. Thus parliament exists on the sufferance of political parties, propaganda agencies and organized interest which compete for popular ‘consent.’ When parliamentary forms and the rule of ‘law’ become inadequate to the political situation, they will be dispensed with in the name of the people: ‘No other constitutional institution can withstand the sole criterion of the people’s will, however it is expressed.’

Schmitt thus accepts the logic of Weber’s view of plebiscitarian democracy and the rise of bureaucratic mass parties, which utterly destroy the old parliamentary notables. He uses the nineteenth-century conservatives Juan Donoso Cortes to set the essential dilemma in Political Theology: either a boundless democracy of plebiscitarian populism which will carry us wherever it will (i.e. to Marxist or fascist domination) or a dictatorship. Schmitt advocates a very specific form of dictatorship in a state of exception – a “commissarial’ dictatorship, which acts to restore social stability, to preserve the concrete orders of society and restore the constitution. The dictator has a constitutional office. He acts in the name of the constitution, but takes such measures as are necessary to preserve order. these measures are not bound by law; they are extralegal.

Schmitt’s doctrine thus involves a paradox. For all its stress on friend-enemy relations, on decisive political action, its core, its aim, is the maintenance of stability and order. It is founded on a political non-law, but not in the interest of lawlessness. Schmitt insists that the constitution must be capable of meeting the challenge of the exception, and of allowing those measures necessary to preserve order. He is anti-liberal because he claims that liberalism cannot cope with the reality of the political; it can only insist on a legal formalism which is useless in the exceptional case. He argues that only those parties which are bound to uphold the constitution should be allowed an ‘equal chance’ to struggle for power. Parties which threaten the existing order and use constitutional means to challenge the constitution should be subject to rigorous control.

Schmitt’s relentless attack on ‘discussion’ makes most democrats and radicals extremely hostile to his views. He is a determined critic of the Enlightenment. Habermas’s ‘ideal speech situation’, in which we communicate without distortion to discover a common ’emancipatory interest’, would appear to Schmitt as a trivial philosophical restatement of Guizot’s view that in representative government, ‘ through discussion the powers-that-be are obliged to seek truth in common.” Schmitt is probably right. Enemies have nothing to discuss and we can never attain a situation in which the friend-enemy distinction is abolished. Liberalism does tend to ignore the exception and the more resolute forms of political struggle.

 

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