Carl Schmitt and the Concept of Sovereignty

Carl Schmitt begins his essay on political theology by discussing sovereignty.  As he famously opens, “Sovereign is he who decides on the exception.”  What exactly does this all entail?

Schmitt’s definition that the sovereign is he who decides on the exception is one of the most famous sentences of all modern political philosophy.  In fact, the last almost 100 years of political philosophy and critical political theory (especially in France, Germany, and Italy), have wrestled with Schmitt’s outline of sovereignty.  Some famous names who have taken to heart and criticism Schmitt’s understanding have been: Michel Foucault, Jacques Derrida, Hannah Arendt, Leo Strauss, and Giorgio Agamben to name a few.  What Schmitt means by sovereignty and exception is twofold: (1) exception is a political moment when the sovereign can suspend the juridical order (the “rule of law”) in a “state of emergency” (a term more familiar to English speakers) and; (2) decide who is included and (more importantly) excluded within that juridical order.  Thus, the sovereign is he who has absolute control over the juridical order itself and has the power to decide who is included and who is excluded from this order.  (Kind of like how God gets to decide who to admit into heaven and who to cast into hell in sticking with the theme of political concepts as secularized theological principles.)

Juridical order, to keep things brief and clear, is the political legal norm that societies are constructed on.  In other words: the social contract or whatever basis of law that informs a society.

Additionally, Schmitt believes that deciding on the state of exception is the very foundation of the political – or political life.  That is, all political order is based on how a body should be organized (politeia).  That moment of exception is the foundation of politics rather than the established order of law itself because all law is created ex nihilo in a moment of exception to begin with.  All politics, as Schmitt explains in Concept of the Political, is based on the “friend-enemy” distinction; in other words: who is in the body and who is outside of the body.  (Giorgio Agamben, in his great work Homo Sacer, takes Schmitt’s definition of sovereignty, the paradox of sovereignty, and the friend-enemy distinction and roots in it ancient Greek and Roman political and anthropological thought.)  Those who are within the body are “full members” with “rights” while those outside of the body are “non-members” who “have no rights” to the constitution of that body which they are outside of (Schmitt does not deny, as some charge, that humans do not have any rights at all; he articulates the view that non-citizens have no constitutional rights within a constitutional order that they do not belong to).

Schmitt argues that mechanistic theology, which influenced mechanistic constitutionalism (e.g. liberalism) is antithetical to the political because it considers itself universally valid and therefore avoids the decision of the exception which is how societies first formed (e.g. “everyone” is a member so this avoids the fundamental questions of politics – in essence, we become non-political and, in time, live only for consumeristic ends).  As he says in his fourth essay, liberals wanted a king (or a central president) who was weakened by a parliament.  They wanted an absent ruler just as Deism wanted an absent God; merely a figurehead who had no power over, or within, the juridical order which he is the nominal ruler of.  The point of a community, and politics is about community, is rather simple: Who is included and who is excluded.  And a community (e.g. nation) concerns itself with its members moreover than non-members.  In this manner Schmitt agrees with Hegel that citizenship is the highest concrete manifestation of “ethical life” one can strive for.  The liberal view is something that ultimately shatters the concept of sovereignty altogether.

(Again, we see the “political theology” that Schmitt talks about more visibly in his third essay “Political Theology” where the establishment of the juridical order is like God creating the universe – hence God is sovereign because he decided to establish and so too is the head of the body politic sovereign because he is the one he decided to suspend the juridical order.  Furthermore, sovereign is also akin to the miraculous in theology because the miraculous is that which suspends the laws of nature in order to take place – hence why the political head is sovereign because he can suspend the laws of the norm, etc.)

Schmitt, then, quickly transitions into the paradox of sovereignty.  “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.”  Thus, the sovereign exists within and outside the juridical order itself.  He exists within it because he is the head of the order.  But because he is the head of the order he can suspend it.  By having the power of suspending the order – which is the decision on the exception – the sovereign exists outside of the order too.  (Much like how God is transcendent and therefore exists outside of the universe, but every so often penetrates into the world via the miraculous or the Incarnation per Christianity.)

More perplexingly to some, Schmitt’s state of exception is basically the right of the State to exist against those forces that threaten its existence.  Schmitt believes that the nation-state is the highest manifestation of political society, or the so-called legal norm: “The existence of the state is undoubted proof of its superiority over the validity of the legal norm.  The decision frees itself from all normative ties and becomes in the true sense absolute.  The state suspends the law in the exception on the basis of its right of self-preservation as some would say.”  The weight of history, Schmitt argues, shows us the legitimacy of the nation-state.

Schmitt is also discussing Hobbes and Locke underneath our noses.  Schmitt, seeing through the liberal veil, is asserting that in our surrendering of sovereignty in the state of nature (which was the sovereignty to decide who we would kill and who we would spare in the war of all against all) to the social contract (the state) means that the right of self-preservation (the only “law of nature” according to Hobbes and Locke) got transferred from humans to the state.  Thus, the “sovereign state” controls who lives and who dies, the “sovereign state” decides who is a member of the commonwealth and who is not, the “sovereign state” decides to follow the law of self-preservation for its preservation and therefore has the right to kill anyone whom is deemed a threat to the existence of the state.  For all the talk of “individual rights” and “individual sovereignty” in liberalism, this is patently untrue.  Perhaps we should just look to Canada or England to see the state’s encroaching totalizing control over individual lives where the State really does decide who lives and who dies and what people can say and not say.

But who is the sovereign you might ask?

For Schmitt’s, the sovereign of the Weimar Republic was the Reichspräsident.  Or the head of the executive body politic (is likeliest to be the sovereign as the executive is the one who will make decisions).  This is also hinted at in Locke where federative power would, over time, condense into the hands of the executive.  The legislature and judicial courts exist, this is true, but they are not sovereign.  The president is the one who has the power invested to him to suspend the legal norms in moments of extreme crisis or emergency.  This, Schmitt believes, has also played out throughout history.

Americans, for example, can think of the Alien & Sedition Act under Adams, or Lincoln’s suspension of habeas corpus during the Civil War, or the executive powers of the USA Patriot Act, and so forth.  The legislature and court system go along with the executive because it is only a temporary suspension.  The norm will be restored after the exception is dealt with.  Thus, “all law is situational law.”  This is because the State, like God, can break into the natural order and suspend the natural order (this is what is called a “miracle”).  In other words, the law is not fixed and unbreakable.  There is always something greater than the law.  In ancient theology this was God.  In modernity this is the State.

Thus, all presidents are really “dictators” in the traditional Roman sense of the word.  They have the right to suspend the juridical order (or be appointed and then suspend the order like in ancient Roman republicanism) in the name of saving the order from outright destruction.  Schmitt’s “dictator” which he explained in his essay “On Dictatorship” is not “dictator” in the wholly negative sense as we have come to immediately think of the term today (as in restricting all freedoms and the presider over a totalitarian system).  Schmitt is arguing that all political sovereigns are dictators by power and definition.  Whether you live in a “democracy” or a “republic” or a one-party state, you really live under a dictatorship if you leave in a sovereign country with a sovereign body politic able to make decisions of exceptions.  In fact, Schmitt goes as far as to imply that a sovereign nation-state cannot exist unless it has the provision of dictatorship in its constitution or implied in its constitution.  (This is his treatment on Article 48 of the Weimar Constitution.)  Thus, in reality, the president who has the power of the dictator is like God.  The people are not sovereign only the president is (like how only God is sovereign and we are his subjects – in that sense the head of the executive is the “god” on earth).

In his fourth essay on political theology Schmitt returns to the concept of sovereignty as the moment of decision.  It is in the dictator, and dictatorship, that Schmitt sees the sovereign and sovereign body politic coming to fruition.  The dictator is able to bypass all the problems of bureaucracy and wishy-washy “discussion” per liberal society (which causes paralysis and ability to decisively act when problems arise) and make the decisions necessary to keep the community intact and sustaining (or perpetuating) itself into the future.  Since sovereignty is Schmitt’s main concern, whoever, or whatever system, best ensures sovereignty is the path one should take.

Sovereignty is also tied to questions of human nature.  Are men good or evil?  As Schmitt examines the history of thought, those who find human nature evil (or corrupted or easily corruptible) they argue that man, in his depraved nature, needs governance.  Thus, governance is good because it helps direct man to his better nature.  If man is good then all structures of government are evil because they corrupt man’s natural goodness.  The question of the goodness or evilness of man leads to radical consequences: man as autonomous sovereign or the nation with its political and juridical structures and systems as sovereign wherein man, within said system, is “sovereign” only insofar as his country is sovereign.   Put it this way.  Are we (as individuals) really sovereign if our nation we live in is immobilized and has no control over its ability to make that decision of exception, or are we sovereign in civil society as long as our country has that power to decide on the exception?

Furthermore, I need to stress that Schmitt was not anti-Weimar per se, especially when writing in the 1920s.  He saw Weimar as the legitimate state of the German nation.  Thus, he wanted to ensure Weimar’s self-preservation against enemies of the German state – whether they were foreign  liberals (British and Americans), foreign communists (Russians), or even internal far-leftists and far-rightists.  The issue of Schmitt joining the Nazi Party is too complicated to get into here but logically stems from his belief of the importance of sovereignty and decision-making (the sovereign is he who makes the decisions on exceptions).  Nevertheless, for Schmitt, the whole point of sovereignty is the state’s right to self-preservation.  Furthermore, Schmitt believed the “nation” (the people) and the state have moved to a singularity where nation and state have become infused together (and this is true for all peoples and their states).

In the end Schmitt also is claiming that a nation-state cannot be sovereign unless it has the power to decide on the exception.  This returns us to the second point of Schmitt’s definition of sovereignty within the confines of the political.  A nation-state that does not have the power to decide who to include, but more importantly, who to exclude, from its body is a nation-state that is no longer sovereign.  Schmitt is a sovereignist theorist.  He believes sovereignty to be the only medium to avoid extinction.  (And the State exists to confront chaos and the forces that would annihilate us.)  This power is vested in the state which is, ideally, supposed to act in the interest of its citizens who have transferred their sovereignty (e.g. their right to self-preservation) to the state.  This is important to remember about Schmitt as well: The body is sovereign (body of citizens) so long as the state is sovereign; while the State is the ultimate arbiter of sovereignty we, as citizens, share in that sovereignty as long as the State is sovereign (though we also know the State has the power to deem us an enemy).

Thus, we can learn four primary things from Schmitt’s analysis of sovereignty (and all four essays in Political Theology are essays on the nature of sovereignty).  First: the sovereign exists within and outside the juridical order.  Second: sovereignty is the power to decide on the exception (of the juridical order itself).  Third: any state that cannot decide on the exception (principally related to the power to decide who to exclude from the body) is not sovereign.  Fourth, and finally: citizens are not sovereign; only the state is sovereign – that said the state is entrusted to act in the interest of its citizens.  Thus, the state should only ever act in the citizen’s interest and never the “other’s” interest.

I will end by stating that Schmitt was also a pluralist.  He opposed universalism and universal homogeneity writ large.  Thus, he was also an opponent of “international” or “universal” political order.  That would mean the end of the sovereignty of nation-states and the particular communities that constitute nation-states.  And since we know that something is greater than law, despite liberal pretensions to claim otherwise, this would mean that nations that sign onto a universal political order are really becoming slaves to a certain state.  (Schmitt, in his time, believed the “god” of the international order was the state of Britain, then it became the United States of America, so all nations subscribing to the liberal international order were becoming slaves to America.)  We should question whether this is true or not, and we should also question whether there is something true in what Schmitt is saying here about surrendering sovereignty to others and which “other” is now the Sovereign over us.

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