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Carl Schmitt — 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. In , Schmitt published the first version of his most famous work, The Concept of the Political , defending the view that all true politics is based on the distinction between friend and enemy.

During the political and constitutional crisis of the later Weimar Republic Schmitt published Legality and Legitimacy , a clear-sighted analysis of the breakdown of parliamentary government in Germany, as well as The Guardian of the Constitution , which argued that the president as the head of the executive, and not a constitutional court, ought to be recognized as the guardian of the constitution.

Though Schmitt had not been a supporter of National Socialism before Hitler came to power, he sided with the Nazis after But Schmitt was ousted from his position of power within legal academia in , after infighting with academic competitors who viewed Schmitt as a turncoat who had converted to Nazism only to advance his career. The immediate motivation for this turn seems to have been the aim to justify Nazi-expansionism. But Schmitt was interested in the wider question of the foundations of international law, and he was convinced that the turn towards liberal cosmopolitanism in 20th century international law would undermine the conditions of stable and legitimate international legal order.

Due to his support for and involvement with the Nazi dictatorship, Schmitt was briefly detained and interrogated at the end of the war as a potential defendant in the Nuremberg trials ECS; AN , the legitimacy of which he impugned in a legal brief prepared for the defense of the German industrialist Friedrich Flick IC. The obstinately unrepentant Schmitt was not allowed to return to an academic job after Mehring , — However, engagement with Schmitt is nevertheless considered to be important.

Modern liberal constitutions do not acknowledge a bearer of sovereign authority, and modern legal and constitutional theory has often tried to dispense with the concept. But Schmitt argues, in Political Theology , that such attempts to get rid of sovereignty cannot be successful. According to Schmitt, liberal constitutionalists typically hold that all legitimate particular acts of state must apply general legal norms, so that people are subject only to the determinate and predictable demands of the law, not to the potentially arbitrary authority of persons PT 18—26; see also CT —96, CPD 33— This view overlooks, Schmitt argues, that general legal norms often fail to provide determinate guidance without considerable interpretation and interstitial legislation PT 29—35; GU 21— In order for the law to become effective, there needs to be an authority that decides how to apply general legal rules to concrete cases and how to deal with problems of contested interpretation or under-determination.

However, the material content of the law does not itself determine who is to interpret and to apply it. Hence, a sovereign authority prior to the law is needed to decide how to apply general legal norms to particular cases PT 29— This argument appears to assume that all legal norms are material norms providing substantive grounds of legal decision. But modern legal systems typically contain norms of competence in addition to material norms. Hence, it seems that the view that all legitimate political authority depends on legal authorization is not as indefensible as Schmitt suggests Kaufmann , — The law can determine, for any material legal norm, which person or institution has the competence to interpret and apply it.

Subjects of the law may admittedly have to accept that a final decision might turn out to be binding even though wrong. PT 33—4 But that a legal system, through its norms of competence, provides for the authoritative interpretation of its material legal norms hardly entails that it must contain a sovereign in the traditional understanding of that term.

Legal norms, Schmitt argues, cannot be applied to a chaos. In a completely abnormal situation, the continued application of the law through the normal administrative and judiciary channels is going to lead to haphazard and unpredictable results, while preventing effective action to end the emergency PT 13; GU 44—; Scheuerman ; Hofmann , 17— If the applicability of material legal norms presupposes a condition of normality, Schmitt assumes, a polity must be entitled to decide whether to suspend the application of its law on the ground that the situation is abnormal.

Any legal order, Schmitt bluntly concludes, is based on a sovereign decision and not on a legal norm PT 10, 12—3. One might reply to this line of thought that it is perfectly possible to establish legal conditions for the declaration of a state of emergency as well as legal constraints on the permissible means of dealing with an emergency.

Schmitt argues, though, that attempts to legalize the exceptional situation are doomed to failure. It is impossible to anticipate the nature of future emergencies and to determine in advance what means might be necessary to deal with them. As a result, the positive law can at best determine who is to decide whether there is an emergency that requires a wholesale suspension of the law. But the sovereign decision cannot be guided by existing material law PT 11—2.

There can be a sovereign authority, in a jurisprudentially relevant sense, even where such an authority is not recognized by positive constitutional law. All that matters is whether there is a person or institution that possesses the ability, as a matter of fact, to take a decision on the exception.

What about cases, though, where sovereignty is not just unrecognized in positive law but where there is no one, as a matter of fact, who could successfully take a decision to suspend the law altogether? This condition seems to apply in many contemporary western democracies. Perhaps such polities are ill-prepared to deal with radical emergencies. But it would be implausible to conclude that they do not possess a legal order. Schmitt must be arguing that wherever the situation of normality or homogeneity that makes the results of the application of law determinate and predictable is no longer guaranteed by a sovereign, the positive legal system, consisting of material norms and of positive norms of competence, can no longer be legitimate Mauss , 81—; Scheuerman , 15—37; Hofmann If it were not, a sovereign could hardly possess the factual capability to suspend the law and to act successfully against the perceived emergency.

To do so, his decision will need to be supported by a sufficiently large and powerful constituency. Nevertheless, the need for sovereign decision will be greatest in a society torn by serious ideological or social conflict. The question of the legitimacy of law thus turns on the question of the legitimacy of an identity-constituting sovereign exercise of foundational violence. Schmitt admits that the principle of democracy is the only principle of legitimacy that is available as an ideological basis for a contemporary constitution PT 50—2; CPD 22— But it is difficult to see how this could be possible.

The only candidate for sovereignty in a democratic polity is the popular sovereign, composed of politically equal citizens. A popular sovereign, it seems, cannot be a Schmittian sovereign, as it will only be able to decide under existing constitutional rules that determine how the people as a collective are to form a unified will.

Schmitt prepared the groundwork for a solution to this problem in Dictatorship , his historical study of the development of the institution of dictatorship McCormick , —56; Cristi —25; Kalyvas , 88—; Kelly Dictatorial power in its original, Roman form is a formally delegated and time-limited power to defend an already existing republican constitution through the use of extra-legal force D xlii—xliv, 1— In the course of modern constitutional history, however, the institution of dictatorship, Schmitt claims, fused with sovereignty, and this fusion related sovereignty to democracy.

The absolutist sovereign did possess the sovereign power to decide on the exception, and was thus capable of authorizing commissars to use dictatorial methods in his name.

But the notions of dictatorship and sovereignty were not yet fused. The commissarial dictators of the absolutist sovereign were mere agents of the sovereign and did not themselves possess the power to decide on the exception. But the relation between sovereignty and dictatorship changed in the French revolution. The revolutionary governments relied heavily on dictatorial action to create a new situation of normality that would allow a new constitution to come into force.

The revolutionary governments, like the absolutist sovereign, claimed the power to decide on the exception, but they did not claim to be sovereign. Rather, they claimed to exercise the authority to decide on the exception in the name of the French people, even while they were ruling the French people by the use of dictatorial methods D — Sovereignty and dictatorship had become fused in the novel institution of sovereign dictatorship: A sovereign dictator is a dictator who does not defend an already existing constitution but attempts to create a new one and who does so not by his own authority but in the name of the people D — It can exist only where it has become possible to take a sovereign decision on the exception in the name of the people.

Sovereignty, Schmitt concludes, is not just compatible with democracy but central to it, as it is exercised whenever and wherever a democratic constitution is founded CT —10, —6; CPD The fact that a democratic constitution cannot endow a particular person with permanent sovereign authority does not entail that the possibility of a genuine sovereign decision on the exception has disappeared.

The sovereign dictator has the power, in taking the decision on the exception, to set aside the positive legal and constitutional order in its entirety and to create a novel positive legal and constitutional order, together with a situation of social normality that fits it.

It follows that the sovereign dictator cannot base his claim to be acting in the name of the people on any kind of formal authorization. If the old constitution no longer exists and the new one is not yet in force, there is no formal procedure for generating a public will.

And yet, the sovereign dictator claims to exercise the constituent power of the people. Individuals may have personal enemies, but personal enmity is not a political phenomenon.

Politics involves groups that face off as mutual enemies CP 28—9. Two groups will find themselves in a situation of mutual enmity if and only if there is a possibility of war and mutual killing between them. Schmitt believes that political enmity can have many different origins. The political differs from other spheres of value in that it is not based on a substantive distinction of its own.

The ethical, for example, is based on a distinction between the morally good and the morally bad, the aesthetic on a distinction between the beautiful and the ugly, and the economical on a distinction between the profitable and the unprofitable. The political distinction between friend and enemy is not reducible to these other distinctions or, for that matter, to any particular distinction — be it linguistic, ethnic, cultural, religious, etc. It is possible, for instance, to be enemies with members of a hostile group whom one judges to be morally good.

And it is equally possible not to be engaged in a relationship of mutual enmity with a group whose individual members one judges to be bad.

The same holds, Schmitt thinks, for all other substantive distinctions that may become markers of identity and difference. Any distinction that can serve as a marker of collective identity and difference will acquire political quality if it has the power, in a concrete situation, to sort people into two opposing groups that are willing, if necessary, to fight against each other CP 37—8.

Whether a particular distinction will come to play this role is not determined by its own intrinsic significance but by whether a group of people relies on it to define its own collective identity and comes to think of that identity, as based on that distinction, as something that might have to be defended against other groups by going to war. Political identification is likely to latch on to another distinction that will inherit the lethal intensity of political conflict See ND.

But wherever a distinction has political quality, it will be the decisive distinction and the community constituted by it will be the decisive social unit. Schmitt claims that one cannot judge, from an external perspective, that a group is morally unjustified in defining its own identity in a certain way and to introduce political enmity, with the attendant possibility of killing, to preserve that identity.

Only members of a group are in a position to decide, from the perspective of an existentially affected participant, whether the otherness of another group amounts to a threat to their own form of life and thus potentially requires to be fought CP 27; See also CT 76—7, A group that perceives its own existence to be threatened by some other group, Schmitt argues, finds itself in an analogous position.

The possibility of third-party mediation is therefore ruled out in a truly political conflict CP 45— A political community exists, then, wherever a group of people are willing to engage in political life by distinguishing themselves from outsiders through the drawing of a friend-enemy distinction CP 38, 43—4. A people, thus, will have an existence prior to all legal form as long as there is a sense of shared identity strong enough to motivate its members to fight and die for the preservation of the group.

And as long as a people exists in this way it is capable, through its support, to sustain a sovereign dictatorship exercised in its name CT — A political community does not enjoy simple biological existence.

It might die though all of its individual members continue to live. The drawing of a friend-enemy distinction, therefore, is never a mere reaction to a threat to a form of existence that is already given but see Mouffe , 49— Rather, it actively constitutes the political identity or existence of the people and determines who belongs to the people.

Schmitt realizes, of course, that it is possible for people who are not willing to identify in this way to be legally recognized as citizens, and to live law-abidingly, under the norms authorized by some positive constitution. In a liberal state, Schmitt fears, the political nation will slowly whither and die as a result of spreading de-politicization, it will succumb to internal strife, or it will be overwhelmed by external enemies who are more politically united CP 69—79; L 31— To avert these dangers, Schmitt suggests, it is necessary to make sure that the boundaries of the political nation and the boundaries of citizenship coincide.

The point of this remark is that a state can only be legitimate if its legal boundaries embody a clear friend-enemy distinction.

In order to achieve this aim, Schmitt clearly implies, a sovereign dictator, acting in the interstices between two periods of positive constitutional order, must homogenize the community by appeal to a clear friend-enemy distinction, as well as through the suppression, elimination, or expulsion of internal enemies who do not endorse that distinction CP 46—8.

Schmitt observes that his concept of the political is not belligerent. It does not glorify war, but merely claims that a community that is interested in living politically needs to be willing to go to war if it perceives its political existence to be threatened CP 32—5.

On a descriptive level, Schmitt claims that liberalism has a tendency to deny the need for genuine political decision, to suggest that it is neither necessary nor desirable for individuals to form groups that are constituted by the drawing of friend-enemy distinctions.


What Is The New “Nomos of the Earth”? Reflections on the Later Schmitt (Carl Raschke)

In other words, both legislative and juridical categories can be resolved into the elements of political economy in the classic sense of the term. Chapter one makes the case that in the ancient world as late as Roman imperial times there was actually no such thing as a nomos of the earth. The ordering of space was laid out with respect to the territorial and administrative contours of empire. The diffusion of empire were entirely conceived for the most part in terms of the military expansion of mystically sovereign and superior political entities. Schmitt ascribes the genesis of the respublica Christiana to a transformation of the imperial imaginary that took place from the fourth century onward after the conversion of Constantine. Schmitt argues:. The Christian empire was not eternal.


The Nomos of the Earth: In the International Law of the Jus Publicum Europaeum

Schmitt wrote extensively about the effective wielding of political power. He is noted as a critic of parliamentary democracy, liberalism, and cosmopolitanism, [3] and his work has been a major influence on subsequent political theory, legal theory, continental philosophy, and political theology , but the value and significance of his work is subject to controversy, mainly due to his intellectual support for and active involvement with Nazism. Schmitt was born in Plettenberg , Westphalia , German Empire. His father was a minor businessman. He studied law at Berlin , Munich and Strasbourg and took his graduation and state examinations in then-German Strasbourg during


Carl Schmitt


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