Constitutional Theory: Schmitt after Derrida

Jacques de Ville

• Publisher: Birkbeck Law Press
• Year: 2017
• ISBN:
  9781351866392
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

This book advances a new reading of the central works of Carl Schmitt and, in so doing, rethinks the primary concepts of constitutional theory. In this book, Jacques de Ville engages in a close analysis of a number of Schmitt's texts, including Dictatorship (1921), The Concept of the Political (1927), Constitutional Theory (1928), Land and Sea (1942), Ex Captivitate Salus (1950), The Nomos of the Earth (1950) and The Theory of the Partisan (1963). This engagement takes place from the perspective of constitutional theory and focuses specifically on concepts or themes such as sovereignty, the state, the political, constituent power, democracy, representation, the constitution and human rights. The book seeks to rethink the structure of these concepts in line with Derrida's analysis of Schmitt's texts on the concept of the political in Politics of Friendship (1993). This happens by way of an analysis of Derrida's engagement with Freud and other psychoanalysts. Although the main focus in the book is on Schmitt's texts, it further examines two texts of Derrida ( Kh?ra (1993) and Fors: The Anglish Words of Nicholas Abraham and Maria Torok (1976)), by reading these alongside Schmitt's own reflections on the positive concept of the constitution.

Chapter 1
Introduction

Schmitt and Derrida

Despite their very pronounced political and theoretical differences, Jacques Derrida (1930–2004) devotes three chapters to the texts of Carl Schmitt (1888–1985) in his Politics of Friendship (1994), in seeking a beyond to the traditional conception of friendship in the metaphysical tradition. Here Derrida, different from other contemporary philosophers,¹ affirms in large part Schmitt’s analysis of the enemy by exploring in detail The Concept of the Political (1927), ‘The Theory of the Partisan’ (1963) and ‘Weisheit der Zelle’ (1947).² Derrida’s analysis of Schmitt’s texts has thus far found little resonance with scholars within constitutional theory and other, related fields. The political-theological reading of Schmitt by Meier (1998), as well as the reading of Schmitt by Agamben (1998; 2005) with its emphasis on sovereignty and the exception, has thus far been much more influential. There is no doubt considerable value in the readings of Meier and Agamben as well as in the readings of their followers, which will be relied on in the analysis that follows, yet the present publication (hereafter ‘SAD’) returns to Derrida’s reading of Schmitt and gives it a certain preferential status. It specifically raises the question as to the implications for constitutional theory should one take seriously Derrida’s deconstruction of Schmitt’s concept of the political in Politics of Friendship. Can such a reading provide a foundation for constitutional discourse? The answer, which will be given in Chapter 8, will be an ambivalent yes and no.

1 See e.g. Agamben (1998: 8): ‘The fundamental categorical pair of Western politics is not that of friend/enemy but that of bare life/political existence, zoē/bios, exclusion/inclusion’.

2 Derrida also refers to Schmitt in a number of other texts, including Rogues, ‘Autoimmunity’ and The Beast & the Sovereign, vols I and II.

Constitutional theory

Why ‘constitutional theory’? The latter is of course the title of the 2008 translation of Schmitt’s highly acclaimed Verfassungslehre (1928). In this text, Schmitt spells out the radical implications of his own analysis in The Concept of the Political, thereby dislocating the foundations of liberal constitutionalism. He argues in this respect that the political component of modern constitutions, which is repressed by liberal thinking through its privileging of the rule of law, separation of powers and freedom, is in fact the most important component of a constitution. In showing the priority of the political component, Schmitt insists on drawing a distinction between the constitution as such and constitutional laws; distinguishes between, yet shows the interdependence between, the two principles of political form, that is, identity and representation; resurrects the concept of sovereignty in the form of constituent power; understands equality as first of all and necessarily implying an inequality in respect of those who are excluded from the political unity; and subjects freedom to the political component of the constitution.

The focus in SAD will be on some of the main concepts and themes explored by Schmitt in Constitutional Theory, which intersect with the thinking of Derrida. These include: sovereignty; the state; the political; constituent power; democracy; representation; the constitution; human rights, specifically freedom and equality; as well as the international and transnational framework within which national constitutions operate.³SAD will closely analyse Schmitt’s Constitutional Theory as well as a number of Schmitt’s other texts, and will more specifically seek to reconceptualise the above-mentioned concepts in line with Derrida’s thinking, whilst remaining faithful to Schmitt’s texts. The forces at the origin of the modern constitution will be central to this analysis. This was also Schmitt’s concern, and remains the concern today of constitutional theorists. A reading of Schmitt through a Derridean lens allows us to rethink such origin and, as we will see in what follows, makes it possible to view a constitution as a gift without return to the self.

3 Although Derrida explores all of these ‘themes’ in his texts, he does not necessarily do so with reference to Schmitt.

Reading Schmitt

The first possible reading strategy in respect of Schmitt, that is, apart from agreeing with his analyses in all or most respects, would be to critically engage in refutation, and to seek rational and logical alternatives to the conservative and often authoritarian responses he gives to the burning questions of constitutional theory. This strategy will not be adopted here, at least not as a primary strategy, because refutation, as Derrida (2016: 2) points out, still belongs to metaphysics, and takes no step beyond it. A second possible strategy would be to simply ignore or disregard Schmitt because of his Nazi collaboration and anti-Semitism. Writing about him would, in the view of some, even make one complicit in these stances. In support of this reading strategy, and as set out in more detail in later chapters, there can be little doubt that Schmitt’s anti-Semitism was pervasive, that is, not adopted by him simply in order to curry favour with the Nazis from 1933 to 1936. Are all his texts thereby tainted with anti-Semitism,⁴ or is it possible, as a third possible reading strategy, to distinguish and separate Schmitt’s political commitments from his thinking? A reductive reading of Schmitt as an anti-Semite fails to take account of the Freudian insight into the inevitable tensions and contradictions in a person’s life and thinking. The consequential idea that Schmitt should because of his anti-Semitism be isolated and ignored, or that this can be done in respect of a certain part of his work, likewise fails to take account of Freud’s insights regarding human nature.⁵ As Malpas points out in respect of Heidegger’s recently published Black Notebooks, 1931–1941:

[t]here is surely nothing of which humans are capable that is not also a possibility to which we are ourselves connected just by virtue of our being human … . This is partly why the Holocaust is so horrific – it is a horror that proceeds, not from something that is other than human, nor from some single person (Hitler) or exclusive group of persons (the Nazis, the Germans, the Europeans) such that they could be set apart, excluded or quarantined from the rest of us, but from a possibility that belongs to human being itself.

(Malpas 2016: 10–11)

4 See e.g. Gross (2015).

5 See e.g. Freud (2001, XIV: 281) on the impossibility of eradicating ‘evil’.

The above passage is cited here because of the centrality of human nature and of psychoanalysis for the reading strategy or analysis that follows. This ‘analysis’ will not involve a psychoanalysis of Schmitt himself, though his texts will indeed be subjected to what can be called here a ‘quasi-psychoanalysis’, the nature of which will be clarified in what follows. Malpas in the above passage and in the rest of his chapter on Heidegger makes out a strong argument that there is indeed an obligation to seek to understand thinkers like Heidegger and Schmitt, specifically the relation between their anti-Semitism and their philosophical thinking. This is an obligation which Derrida took very seriously, especially in the case of Heidegger.⁶ In the case of Schmitt, this obligation should arguably also involve an attempt to understand the seemingly important role of a certain political theology in his thinking,⁷ though without ignoring the tensions and contradictions in his texts.

6 See e.g. Derrida (1988b).

7 See in this respect, Meier (1998).

Derrida’s reading of Schmitt in Politics of Friendship does not consist of a simple affirmation of Schmitt’s contentions, a critique or an attempt to separate the ‘good’ from the ‘bad’. This follows from what could in some sense be called Derrida’s general ‘project’, that is, the deconstruction of the metaphysics of presence.⁸ In brief, Derrida seeks to show that metaphysics has a (problematic) desire for presence as its founding principle, and he seeks a passage beyond this. This general project is ‘executed’ in a singular manner in respect of each text which Derrida reads, so that no ‘method’, which is applied in the same manner to all texts, can be said to be at stake here. Another text, another event in a sense announces itself through each reading, which cannot simply be traced back to the author and his work (Derrida 1988b: 91). In Limited Inc, where Derrida engages with the thinking of J. L. Austin and John Searle in their analyses of speech act theory, Derrida is very explicit about the ‘strategy’ that he follows, specifically in exposing the structural impossibility as well as illegitimate logic at stake in metaphysical thinking. It also gives us a foretaste of how Derrida will engage with Schmitt’s texts in Politics of Friendship, and thus assists us in understanding Schmitt’s own strategy as a metaphysical thinker in the construction of concepts. Schmitt was no doubt acutely aware of what was at stake in such construction, as appears for example from the essay ‘Reich – Staat – Bund’:

In the political battle, concepts and conceptualised words are anything but empty sound. They are the expression of sharp and precisely elaborated oppositions and friend-enemy constellations. Understood thus, the content of world history which is accessible to our consciousness has at all times been a battle for words and concepts. These are of course not empty, but energy-laden words and concepts, and often very sharp weapons.

(PB 218)

8 See in general De Ville (2011a: 1–42).

In view of Derrida’s analysis in Limited Inc,⁹ Schmitt’s style of analysis can briefly be summarised as follows: Schmitt, in order to arrive at a pure concept, for example of the political, the partisan, constituent power, representation, the constitution, equality and freedom, as well as of nomos, engages in each instance in an idealisation, in the face of what he sometimes refers to as a certain ‘conceptual dissolution’ (for example in respect of the partisan), ‘collapse’ (for example in respect of the state) or boundless extension of a concept (for example of democracy and equality) which has taken place in the twentieth century. The conceptual extension, collapse or dissolution which Schmitt seeks to overcome is moreover regarded by him as something extrinsic, contingent, accidental or reducible, and the ideal is posited in a hierarchical opposition in relation thereto. The first term of the hierarchical opposition, for example the political/depoliticisation, the telluric partisan/the world revolutionary partisan, serves in each instance as a foundation or as a form of ‘presence’ (tied to the concrete, the earth and the home) and the second term in each instance represents a ‘fall’ from such presence or a ‘corruption’ of an essential purity (associated with the abstract, the normative, rootlessness and the sea).

9 See especially Ltd 67–8, 70, 77–8, 85–6, 89–96, 115–19.

Derrida’s own stance in respect of this typical style of argument appears clearly from the following passage in Limited Inc where he points out in relation to Austin and Searle that the ‘corruption’ or ‘fall’ as referred to above

cannot be a mere extrinsic accident supervening on a structure that is original and pure, one that ...