Dictatorship

Carl Schmitt

• Publisher: Polity
• Year: 2015
• ISBN:
  9780745697147
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Political Ideologies
• Index: Politics & International Relations

Now available in English for the first time, Dictatorship is Carl Schmitt's most scholarly book and arguably a paradigm for his entire work. Written shortly after the Russian Revolution and the First World War, Schmitt analyses the problem of the state of emergency and the power of the Reichspräsident in declaring it. Dictatorship, Schmitt argues, is a necessary legal institution in constitutional law and has been wrongly portrayed as just the arbitrary rule of a so-called dictator. Dictatorship is an essential book for understanding the work of Carl Schmitt and a major contribution to the modern theory of a democratic, constitutional state. And despite being written in the early part of the twentieth century, it speaks with remarkable prescience to our contemporary political concerns.

1

Commissary Dictatorship and State Theory

State Theory Based on Technical Aspects [staatstechnische] and Constitutional State Theory [rechtstaatliche]

For the humanists of the Renaissance, the concept of dictatorship was something they encountered in the study of Roman history and in their classical authors. The great philologists who were so familiar with Roman antiquity made their compilations from Cicero, Livy, Tacitus, Plutarch, Dionysius of Halicarnassus, Suetonius, and so on. In their various statements they were only interested in this form of government as a topic in the study of classics; they made no attempt to explore its meaning in terms of a theory of constitutional law.¹ They began a tradition of interpretation that, broadly speaking, remained unchanged until the nineteenth century: according to it, dictatorship was a wise invention of the Roman Republic and the dictator was an extraordinary Roman magistrate, introduced after the expulsion of the kings, so that a strong imperium [military power] may still be possible in times of insecurity. This imperium was not impaired, like the official power of the consuls, by their collegiality, by the right of the people’s tribunes to veto, or by the right of appeal to the people [provocatio ad populum, i.e. a citizen’s right, in the archaic period, to appeal to the popular assembly against certain civil sentences]. The dictator, who was appointed by the consul at the Senate’s request, had the task of dissolving the dangerous situation by reason of which he had been nominated either by waging war (dictatura rei gerendae) or by squashing an uproar from within (dictatura seditionis sedandae). In later times he could also be installed for some specific purpose: organising a people’s assembly (comitiorum habendorum); driving in a nail which, for religious reasons, had to be carried out by the praetor maximus (clavi figendi); chairing an investigation; determining the public feasts – and the like. The dictator was nominated for six months, but, whenever he had accomplished his mission, he stepped down before his official time of resignation – at least according to a commendable custom in early republican times. He was not bound by the law; he was a kind of king with absolute power over life and death. There are divergent answers to the question whether or not the official power of the remaining magistrates came to an end through the appointment of the dictator. Usually dictatorship was seen as a political instrument by which the patrician aristocracy sought to save its dominion against democratic claims made by the plebeians. An historical critique of the surviving sources is not available.² The later dictatorships of Sulla and Caesar, although politically different from all previous dictatorships (in effectu tyrannis, as Besold says), were understood as identical in terms of a theory of the state.

In particular, the obvious difference between the older republican dictatorships and the later ones of Sulla and Caesar might have suggested a much closer examination of the concept of dictatorship. The contradiction between commissary and sovereign dictatorship, which will be developed in what follows as the fundamental deciding criterion, is here already indicated by the political development itself, and it resides in the nature of the matter. But, because historical judgement is always dependent on the experience of its contemporary context,³ the sixteenth and seventeenth centuries were less interested in the development that led from democracy to Caesarism: the absolute monarchy that emerged at that time did not find its legitimation in any consensus of the people; it saw itself as legitimised through God’s grace [Gottesgnadentum], and it placed itself against the estates – which means, in this context, against the people. The linguistic importance of the word ‘dictatorship’ – which led to its extension to all those cases in which one could say that an order is ‘dictated’ (dictator est qui dictat, ‘dictator is the one who dictates’)⁴ and to a use of language that undoubtedly contributed to the dissemination of the concept – was not evident then.⁵ Whenever, in Germany, the Roman juridical institution is compared to the national and political circumstances of the sixteenth-century state, this is not – in contrast to the examination that compares the legal status of the German king with that of the Roman Caesar, or in contrast to any arguments in canon law⁶ – an exploitation of the concept of Roman institution for the judicial development of concepts; rather it is, in the first instance, just a reinterpretation that, in its naïvety, reminds us of the biblical and mythological images in which events of the past reappear in a contemporary costume. Nevertheless, their historical interpretation bears some fundamental significance. Accordingly, in the Strasbourg translation of Livy of 1507, the consuls are called ‘mayors’, the Senate is called sometimes ‘Council’, and the dictator, if the word is translated at all, is called a ‘superior official’ [obristen gewaltigen], one who ‘is the chief commander in war’.⁷ In his Chronicle, Sebastian Franck [1499–1542] emphasises, as a main characteristic of the dictator, that he was nominated in times of greatest peril; that he had ‘supreme authority’ over life and death, without anyone being able to appeal against his judgement; and that he was ‘the superior of the Roman regiment’, someone whose ‘force and power was above the will of the council of senators’ [Widrigkeit des Rattsherrlichen Pfleg].⁸ But in the scholars of political and constitutional theory of this century we already have some parallels between the Roman understanding of dictatorship and its subsequent institutionalisation in other states, which attempt, with different degrees of awareness, to develop dictatorship as a concept of the general theory of the state. First of all this is true of Machiavelli, who has to be mentioned here, although it can be said quite rightly that he never developed a theory of the state.⁹

Discussing the concept of dictatorship in general was imminent after the publication of [Machiavelli’s] Discorsi sopra la prima deca di Titto Livio (which appeared five years after Machiavelli’s death in 1532), because Livy’ history, which was summarised in the Discorsi, mentioned numerous cases of dictatorship from the first centuries of the Republic. It has often been denied that there is any originality in Machiavelli, and his writings have been described as an imitation of antique models, a compilation of the ‘best bits’ taken from Aristotle and Polybius, or even ‘humanist dissertations’.¹⁰ Nevertheless, his remarks on dictatorship display a profound and genuine interest in politics and a remarkable capacity for discernment. It is an old saying, reiterated many times, that extraordinary conditions require extraordinary measures. But in Machiavelli’s work, beside these common wisdoms – for example his examination of the virtues, popular right up to the nineteenth century, of Republican Romans who stepped down from dictatorship before the end of their mandate (The Prince, I, chs 30, 34) – we also find remarks about the business of the ordinary office, whose complexity and dual mode of consulting could become dangerous in urgent cases and could make a quick decision impossible. This is especially true for the Republic: dictatorship had to be a matter of survival, because the dictator was not a tyrant and dictatorship was not a form of absolute government but rather an instrument to guarantee freedom, which was in the spirit of the Republican constitution. Consequently, in the Venetian Republic, which Machiavelli calls the best modern republic, we can find a similar institution (ch. 34). Everything depends upon how dictatorship was embedded in constitutional guarantees. The dictator was defined as a man who, being independent of the influence of any other institution, was able to issue orders and to execute them immediately, that is, without having to obey other legal remedies (‘un huomo che senza alcuna consulta potesse deliberare et senza alcuna appelaggione eseguire le sue deliberazioni’, ‘a man who could deliberate without consultation and who could act on his deliberations without appeal’, ch. 33). Machiavelli employs the distinction, which goes back to Aristotle, between coming to a decision and its execution, deliberatio and executio, to define dictatorship: the dictator can ‘deliberare per se stesso’ [‘deliberate on his own’], he can take all measures without having to consult any advisory or executive body (‘fare ogni cosa senza consulta’ [‘do anything without consultation’]), and he can immediately implement legal sanctions [rechtskräftige Strafen]. But all these powers have to be distinguished from the legislative activity of government. The dictator cannot change the laws; neither can he suspend the constitution or the organisation of office; and he cannot ‘make new laws’ (‘fare nuove leggi’). In a dictatorship, according to Machiavelli, the official administration subsists as a kind of control (guardia). Therefore dictatorship was a constitutional instrument for the Republic. The Decemviri, on the other hand, endangered the Republic through their unlimited legislative powers (ch. 35).

For Machiavelli and the age that followed his own, dictatorship seemed to be an institution congenial to the free Roman Republic, so that people did not distinguish between two different types of dictatorship, the commissary and the sovereign. Therefore they never regarded the absolutist prince as a dictator. Later writers have sometimes labelled the prince portrayed by Machiavelli ‘dictator’, and the method of government illustrated in The Prince ‘dictatorship’. This, however, runs entirely against Machiavelli’s conception. The dictator is always – admittedly, by extraordinary appointment, yet constitutionally – a republican organ of the state; he is a ‘capitano’, like the consul and other ‘chefs’ (Discorsi, II, ch. 33). On the contrary, the prince is always sovereign, and Machiavelli’s book of the same title tells us, basically by presenting us with political recipes decorated with erudite historical insights, how one can effectively remain in power as a prince. The tremendous success of the book rests on the fact that it corresponds to the concept of state predominant in the sixteenth and seventeenth centuries – that is, the emerging modern state – and, more precisely, to a particular interest arising out of it, which leads directly to the question of the nature of dictatorship. The many discussions about ‘the riddle of the prince’ are partly based on contradictions in Machiavelli – who in the Discorsi appears to be a liberal-minded republican, but in The Prince appears to be an advisor for the absolutist monarch – and partly on the immoralities of the book. Neither the contradictions nor the immoralities can be explained away by identifying them as a hidden attack against tyranny¹¹ or by understanding them as the suggestions of a desperate nationalist.¹² Nor can they be explained through discourses about the interest of power and pragmatic utility, which puts egoism above morality.¹³ Moreover, these accusations are completely void because a purely technical interest was dominant – which was, by the way, characteristic of the Renaissance, and consequently a number of Renaissance artists pursued the technical rather than the aesthetic problems of their business. Even Machiavelli loved to preoccupy himself with technical problems such as military and strategic ones.¹⁴ This is evident in the passages where he discusses diplomatic and political issues: for example how one can be successful, or how one ‘does’ certain things. The most telling passages in The Prince are those where Machiavelli shows his true colours – that is, his hatred and dismissal of the dilettante, that inept character in political life who does things half-heartedly, with half-baked cruelty and half-baked virtue (ch. 8). The consequence of absolute ‘technicity’¹⁵ is an indifference that stands opposed to the further political purpose in the same way in which a technical engineer can have a purely technical interest in producing a thing without having any interest in its use; the thing produced does not need to be of any interest for him. Any political result – be it the absolute government of one single person or a democratic republic, the political power of a prince or the political freedom of the people – is just a task. The political organisation of power and the technique for its maintenance and expansion differ according to the actual form of government. But the former always implies something that can be managed technically, just as the artist produces a piece of art according to his rational understanding. Depending on the concrete circumstances – geography, the character of the people, religious worldview, social power relations and traditions – the method differs and a different construction emerges. In the republican Discorsi Machiavelli praises the good instincts of the people. In the Prince he reiterates that human beings are by nature evil: beasts, a mob. This attitude has been classified as anthropological pessimism,¹⁶ but theoretically it has a completely different meaning. In every discussion that seeks to justify political or statal absolutism, the natural human inclination towards evil is postulated as an axiom, in order to justify the authority of the state. And, however different the theoretical interests of Luther, Hobbes, Bossuet, de Maistre and Stahl may have been, this argument appears significantly in all of them. Nevertheless, in The Prince, neither the moral nor the juridical justification is examined, but rather the rational technique of political absolutism. Following a certain principle of construction, this view assumed that a human being had particular moral deficiencies, which subjected him to this form of governance, on the grounds that people who are endowed, in their make-up, with a republican principle aiming for the common good and who possess virtù could not bear a monarchy. The kind of political energy expressed in virtù cannot be reconciled with forms of absolute government, but only with a republic. The human material that the technical procedure must reckon with must differ according to whether an absolutist government or a republic has to be established. It must differ, or else the intended outcome could not be achieved.

Such a technical understanding was of immediate significance, both for the origins of the modern state and for the problem of dictatorship. The rationality of this technology implied, first of all, that the constructing artists of the state viewed the mass of people that needed to be organised into a state as an object that had to be shaped, like a material, by their will. According to humanist belief, in people – the uneducated masses, the variegated animals, the θηρίον ποικίλον καί πολυκέφαλον (‘many-coloured beast with many heads’), as Plato calls it (Republic IX, 588c, Sophist 226a) – there was something irrational that needed to be governed and led by reason. But, if people are irrational, then one cannot negotiate with them or forge contracts; rather they must be mastered through cunning or violence. In this case reason cannot make itself evident, it does not argue; it dictates. The irrational is only the instrument of the rational, because only the rational can really lead and act. This is in accordance not only with Aristotelian scholasticism,¹⁷ but also with Renaissance Platonism, with the Stoic classical tradition, as well as with all moral understandings that dominated until the end of the eighteenth century and whose ideal was the homo liber et sapiens (‘the free and wise man’). This was a man like Cato or Seneca: the wise, who is in charge of his drives and instincts through his rationality and thus masters his affections – a sophisticated concept, directly opposed to three representatives of the mastery of affections: the great mass, women and children. Rationality dictates. From scholasticism on, the phrase dictamen rationis (‘dictate/judgement of reason’) has been integrated with natural law, and this has also impacted on punishment and on any other statute with legal consequences.¹⁸ If the idea of a dictate was successful on the grounds of its rational superiority, at the same time it was, independently, the consequence of a purely technical interest. In the analysis that follows, it will always be apparent that the content of the actions [Tätigkeit] of a dictator consists in this: achieving a certain goal, ‘accomplishing’ [‘ins Werk zu richten’]: the enemies should be defeated, the political opponent nullified or destroyed. This always depends on ‘specific circumstances’ [der ‘Lage der Sache’ gemäß]. Because a concrete goal should be accomplished, the dictator has to intervene in the course of action through concrete means – and has to do it directly. He acts: he is, to anticipate the definition, the commissar of action; he is the executive, in contrast to a merely decision-making process or judicial verdict – in contrast to deliberare and consultare. Hence, in an extreme case, he has the capacity not to obey general norms. But, if the concrete means of achieving a concrete goal can, under normal circumstances, be predicted with regularity – for instance when the police is entitled to maintain public security – in cases of emergency we can only say this much: the dictator is entitled to do everything that is appropriate in the actual circumstances [nach Lage der Sache]. Here we can no longer ask about legal considerations, only about the appropriate means that would lead to a concrete result in a concrete case. Of course, the decision and the proceedings may be right or wrong, but the way to judge these matters is only related to the question whether the means, in a very technic...