EUROPEAN IDEAS - MASTER EUROPEAN STUDIES FLENSBURG UNIVERSITY

The Idea of Sovereignty in Carl Schmitt

A Critical Review
Andrea Varriale 539246

Summer Semester 2011

The Idea of Sovereignty in Carl Schmitt: A Critical Review

The Idea of Sovereignty in Carl Schmitt:

A Critical Review

Table of Content 1. Introduction 2. Sovereignty as an underived power 3. Exception as a Test for Sovereignty 4. The Legality of the Exception 5. Decision as the base of legal order 6. Conclusions

1. Introduction In this paper I will discuss some of the most significant aspects of Schmitts conception of sovereignty, as it is presented in his Political Theology of 1922. These aspects include: the idea of state of exception as a revealing moment, the possible influence that the tumultuous Weimar republic might have had on his theory, the narrow applicability of the concept of sovereignty despite its broad definition, the rebuttal of the idea that the sovereign might be restricted by the legal system. When relevant, some examples will be provided in order to support my arguments. As mentioned above, this paper has only a critical aim. The content of Schmitts theory will only be explained when necessary for building criticism.

2. Sovereignty as an underived power The opening of Schmitts Political Theology is a rather memorable one: Sovereign is he who decides on the exception. This statement is then powerfully and rigorously explained in the following lines, where he argues that sovereignty is the highest [and thus underived] power of a State. As a consequence of that, all legal provisions issued by the state ultimately derive their legitimacy precisely from that original sovereignty. To address the first criticism, it will be useful to do a short digression on Schmitts idea 2

The Idea of Sovereignty in Carl Schmitt: A Critical Review of sovereignty. It is possible to look at his argument in two different ways. In the first one, which more faithfully follows Schmitts own formulation, sovereignty precedes the legal order in much the same way God precedes the world he has created. Hence, the limitation, the suspension or the abolition of the legal order is not only possible (in consideration of the sovereigns power), but also legal. (since the sovereign has created the system, he also has the right of suspending it). Ultimately, the focus of this reasoning seems to be the justification of the legal order, which stems from a god-like power of the sovereign. Things change if we follow the same track (sovereignty legitimacy legal order) backwards: The role of a powerful constituent power is justified through a general understanding in the population, the bureaucracy, the lite and so that some kind of legal order must be put in place. This interpretation is inspired by Fromms account of freedom and security in his Escape from Freedom of 1941. Both these perspectives seem to provide some ground for the legitimacy of the power. In other respects, however, they are different or even incompatible. Firstly, in the first perspective a legal-logical reasoning prevails (even if probably influenced by the authors strong religious beliefs and interest), while in the second the focus is on the psychological aspect of the legitimacy of the power. Secondly, the second interpretation unlike the first allows for the possibility that power be legitimised from the bottom. This aspect is in my opinion fundamental. The very idea that popular support, or even a mere tolerance, might add to the powers legitimacy is incompatible with the idea of sovereignty as an underived power. In third place, these two perspectives essentially mirror two opposite political position: authoritarian-conservative the former, and democratic-reformist the latter. Against this background arises the criticism on his conception of sovereignty as something set outside the normal political life. In fact, the relation between the sovereign and the legal system (and to the citizens as well), seems rather unidirectional in Schmitts theory. In other words, while the sovereign is the creator and the ultimate justification of the legal system, the whole set of constitutional laws, normal laws, administrative laws has no feedback effect on the sovereignty. Now this is precisely the point I mean to criticise. Not only is today the respect of the legal procedures (or at least a subset of them) more and more a key determinant of a governments legitimacy, but also the scope of a governments action is seriously limited by the respect of the norms (at least of some of them). The reciprocal influence of sovereignty and rule of law leads to a new question, which will be the object of next paragraph. 3

The Idea of Sovereignty in Carl Schmitt: A Critical Review 3. Exception as a Test for Sovereignty Schmitt provides considerable arguments that, if we want to know who the sovereign really is, all we must do is to see who has the power of deciding on the exception. It should be clear that the author gives exception a rather radical meaning, and namely that of suspending the entire existing [legal] order. But even if we accept such a definition, we may still wonder why the sovereign wants to decide on the exception, at all. Is there a point in suspending the legal order, given the sovereigns unlimited authority? Would it not be the same just to reach a de facto abolition of the rule of law? Obviously not. It is not so for the very reason that deciding on the exception not only has a revealing power (e.g. not only reveals who the sovereign is), but also and substantially increases the power of the sovereign. Why would dictators continuously create a climate of emergency otherwise? Obviously, because they can enjoy a considerably bigger amount of sovereignty if they have peoples consent. From the point of view of formal logic, the authority of a state cannot be considered unlimited or underived if it can actually be increased after the exception has been established. In my opinion, the reason why Schmitt ends up having such a stiff conception of sovereignty is his starting point of sovereignty as a god-like authority and his commitment to coherence. With such a premise on the sovereignty, it would have been impossible, given his coherence, to argue, for example, that sovereignty is shared between a number of actors (say, the people, the bureaucracy, the government, and some interest groups). This would unavoidably clash with the conception of sovereignty as unlimited authority. Indeed about this very constellation he writes: Sometimes the people and sometimes the prince would rule, and that would be contrary to all reason and all law. The idea that both could rule together (banally, the old liberal idea of check and balances) is coherently ruled out as incompatible with his idea of sovereignty. 4. The Legality of the Exception One of the most striking aspects of Schmitts theory is his understanding of the exception as the power to suspend the legal order. He not only argues that it is possible, or appropriate, for the sovereign to do so. He also states that such an action should be considered as legal. Commenting on the role of the exception, the author writes: although [the sovereign] 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 4

The Idea of Sovereignty in Carl Schmitt: A Critical Review entirety. In my opinion, here is a weak point of his reasoning. How can the decision of suspending the constitution be legal? Is the concept of legality still available once the legal system has been suspended? If legal is the adjective used to describe the actions taking place within a certain legal order, does it make sense to apply it to the very act of suspending it? In my opinion, the controversy stems from Schmitts will to defend the autonomy of the sovereign without therefore removing legality from his discourse. In order to support his view, he is bound to stretch the concept of legality so far as to include such an extreme notion as that of decision on the exception. To be sure, I indeed think that Schmitt is convincing when he writes that at the origin of a legal system is a decision, or power. What I cannot agree with, however, is his attempt to pass off the exception as something entirely consistent with the legal order. But why does he actually need to do so? Why does he need to potentially justify a coup by shoving it in the category of legal order? Would it not be sufficient just to say that sovereigns are (or have been) more powerful than the state proper? Or could he not just argue that those in power have some kind of moral justification to remove constitutional guarantees? My answer is that he chose to invoke the legality of the exception precisely for what he so strongly denies in his work: that compliance to law may actually increase and not only limit (or make impossible) the sovereignty of an actor. Once the exception has been represented as legal, the idea of sovereignty is made more acceptable. Ironically, he seems to unconsciously follow the notion that, when given the label of legal, even such a controversial concept as that of exception may become more convincing for his readers. When it comes to sovereignty and law, however, he is absolutely unwilling to accept the possibility that the label of legal might anyhow influence the power enjoyed by the sovereign. 5. Decision as the base of legal order I have mentioned before that, despite the disagreement on his argumentation, I believe that Schmitt is right when he writes that at the origin of a legal system lies a decision, and not some unidentified or imagined superior norm. How else would it be possible to justify the legitimacy of a constitution? While such a position may disturbingly suggest some kind of sympathy for authoritarianism and for arbitrary decisions, I believe that it is not impossible to reconcile it with the main point of legal positivism. Of course, doing this requires some modifications. The condition to satisfy, in order to reconcile 5

The Idea of Sovereignty in Carl Schmitt: A Critical Review these two opposed views in a credible way, is to get rid of the expectation that political and legal reality should perfectly fit categories such as sovereignty or compliance to law and that of allowing for some degree of approximation and arbitrariness. To put it clearly, I believe that such a thing as unrestricted authority simply does not exist, and that using this concept in political science is some kind of idealistic stretch. To be sure, I also do not believe that theories are always the best instrument to understand reality. I prefer idealtypical concepts, to be seen as merely analytical tools, approximated and conventional. In my point of view, Schmitt is more concentrated on the aspect of the creation of the legal system, and then derives all the rest in compliance to this original power. Similarly, Kelsen starts from the normal situation of a legal system and its internal rules, and then tries to extend the same reasoning onto the moment when the whole system has been established. I believe that, if they have something in common, this is the failure to understand the inadequacy of their categories outside of their original field of application. Does it make sense to speak of legality of a coup, or how convincing is the statement that, in the lack of a more stringent legal argument, we should just presuppose the validity of a constitution? Why can procedural legitimacy and sovereignty not coexist? Going back to the possibility of a synthesis, I think that these two different views are reconcilable exactly in virtue of the fact that they address different aspects of the legal system, its activation and its normal working. I banally believe that, when it comes to explaining how a whole system is put into place, Schmitts perspective (Autoritas, non veritas facit legem) is much more relevant than Kelsens supposed basic norm loophole. In a mirror-like way, Kelsens idea (that legal actions may only be judged as legitimate in the light of their compliance to their superior laws) seems to me more relevant for a normal legal order than Schmitts statement that all law is situational law can be. A hypothetical synthesis of these two positions would then require to smoothen the edges of both: the concept of sovereignty as absolute power and the concept that legitimacy of a law may only lie in its compliance to superior laws. In such a synthesis, sovereignty and compliance to law would contaminate each other: showing to have followed the rules may increase the authority of the sovereign, while at the same time it would be recognized that official organs may derogate from law without consequence, if their action seem legitimate to its witnesses. Another common situation in which these two principles are contaminated are the so-called emergency situations, in which those in power 6

The Idea of Sovereignty in Carl Schmitt: A Critical Review instrumentally claim that an emergency is going on, in order to increase their own power. 6. Conclusions Schmitt has an undeniable merit, that of making it clear that the question of power cannot be ignored in legal philosophy. He powerfully argues that at the origin of a legal system lies a decision, not a law. If one thinks of how states were made, or constitutions enacted, it is difficult not to think of some form of conflict (be it ethnic or class conflict, or an anti-colonial movement, e.g.) or of a bargain, in the best case. One way of thinking of this is the creation of new states. Let us take the most recent examples, Kosovo and South Sudan. Both of them were created after years of armed conflict, at the end of which a certain part has prevailed. In both cases their president used to be the a military leader. The recent scandal involving the current president of Kosovo, Hashim Thaci, on his criminal activities in the 1990s only show if we want to stick to a value-free analysis that power can indeed be vested with institutional legitimacy, but also that it can very well be build outside or even against the legal system of a state. Another argument in defence of Schmitt is the one about the difference of failed and successful revolutions. Those who fail are legally punished by the state, while the successful revolutionaries can enact their own laws against those who defended the state in the first place. These are clear cases where power creates its own legitimacy. Of course, it is natural to wonder how much of this theory is applicable to the liberal democracies of today. Cases of violent takeovers are extremely rare, and mostly take place in countries whose actual status of liberal democracy is dubious. I think it would not be fair to criticise Schmitt just by lazily arguing that his theory does not apply anymore to most of the democracies. He developed his ideas during World War I and in the troublesome times of the Republic of Weimar. Surely it made much more sense ninety years ago than today. But, as he himself wrote about the relationship between history and theory: New realities can bring about a new sociological interest and a reaction against the "formalistic" method of treating problems of public law. With all his biases and his troublesome political beliefs, Schmitt had enough insight to predict that a theory cannot be relevant forever.