The Legal Theory of Carl Schmitt

Mariano Croce, Andrea Salvatore

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136220661
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

The Legal Theory of Carl Schmitt provides a detailed analysis of Schmitt's institutional theory of law, mainly developed in the books published between the end of the 1920s and the beginning of the 1930s. By reading Schmitt's overall work through the lens of his institutional turn, the authors offer a strikingly different interpretation of Schmitt's theory of politics, law and the relation between these two domains. The book argues that Schmitt's adhesion to legal institutionalism was a key theoretical achievement, based on serious reconsideration of the main flaws of his own decisionist paradigm, in the light of the French and Italian institutional theories of law. In so doing, the authors elucidate how Schmitt was able to unravel many of the impasses that affected his previous conceptual framework. The authors also make comparisons between Schmitt and other leading legal theorists (H. Kelsen, M. Hauriou, S. Romano and C. Mortati) and explain why the current legal debate should take into serious account his legacy.

Part I

Concepts: decision, institutions and concrete order

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Chapter 1

The bumpy road to institutionalism: Schmitt's way-out of decisionism

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1.1. Preliminary

According to one of the most widespread interpretations we can find in the critical literature about Schmitt, his first post-war work can be divided (at least) into two main threads. As Hasso Hofmann (2002) has influentially pointed out, after the enquiry into the troublesome ‘problem of legitimacy from an existential point of view’ (1923–33), Schmitt comes to the ‘racial legitimacy’ that characterizes the period 1934–36. This second period culminates in his The Three Types, published in 1934, but already sketched in 1933 and conceptually pre-announced in the preface to the new edition of Political Theology, written in the same year. Without denying the blatant racial degeneration that taints Schmitt's works in the 1930s, we will bring into question such a prevalent reading.

As we will argue, these periods, which interpreters usually oppose to one another, do not represent two different phases of Schmitt's thinking. Let alone are they inscribed in different fields from which he mulls over different issues (i.e. the political sovereignty and the problem of a cohesive unity vs. the juridical legitimacy and the problem of a uniform ethos). Rather, they represent different faces of the same enquiry, whose main concern is with the definition of law as an autonomous and self-standing field. In this reading, the awareness of the problem of the foundation of law and the first attempt at facing this question (1922–28) are followed by Schmitt's awareness that his first attempt fell short and by his pursuit of a new solution (1928–34). According to our interpretation, throughout the bumpy road leading to his final systematization, Schmitt puts forward two different alternatives to solve the conceptual conundrums he runs into, namely, a decisionist and an institutionalist approach, which we will portray as two different solutions to the same basic question.

In the present chapter, we will focus on the way in which Schmitt gradually moves from a decisionist to an institutionalist solution. In doing so, we will elucidate how he becomes aware of the problem of determining the nature of law and why he is subsequently forced to abandon decisionism so as to devote his attention – at first glance unexpectedly – to the issue of social practices and to an institutional conception of law. In 1.2 we will tackle the emergence of the question at issue by showing how Schmitt's theory of exception should be considered first of all as an attempt to make law intelligible. In 1.3 we will explore the reasons why Schmitt considers normativism, especially in its positivist version, as unable to cope with the problem of defining law. In 1.4 we will address the decisionist solution initially advanced by Schmitt and will explain the reasons why some years later he himself ends up refusing it (at least in its more extreme nihilist form). Finally, in 1.5 we will reconstruct the way in which Schmitt gradually comes to endorse an institutionalist perspective, by turning aside from the concept of a popular constitution-making power (as outlined in Constitutional Theory) to the doctrine of the institutional guarantees developed in the early 1930s.

1.2. The borderline concept of exception as a boundary marker of the concept of law

Although the opening sentence of Political Theology is definitely the most famous (‘Sovereign is he who decides on the state of exception’¹), it is the following one that is of paramount importance for our purposes: ‘This definition can do justice only insofar as it is conceived as a borderline concept’.² Schmitt immediately clarifies that a borderline concept is not a vague concept, but ‘one pertaining to the outermost sphere’: ‘This definition of sovereignty must therefore be associated with a borderline case and not with normality’ (Schmitt 1922/2005: 5). Schmitt clearly insists on the structural relationship between the concept of exception and the definition of law: ‘The assertion that the exception is truly appropriate for the juristic definition of sovereignty has a systematic, legal-logical foundation’ (ibid.: 5–6, emphasis added).

Leaving aside for a moment what ‘state of exception’ stands for, what emerges here is the relevance of the very same concept of exception for the definition of law as a distinct, specific and autonomous field. It is our claim that Schmitt conceives of the borderline concept of exception as a concrete boundary marker of the concept of law. Exception is in point of fact fundamental insofar it is a foundational concept, in that it provides the self-sufficient criterion that allows to identify and mark the borders of the legal field, beyond, and regardless of, every existing legal system. This means neither that the state of exception has no factual importance (and substance), nor that its logical relevance acts in some way behind the backs of its political relevance. Rather, factual importance and logical relevance coexist side by side and we should be aware of the dual semantic level of the concept as long as we want to understand properly the centrality of exception in Schmitt's theory of law, which is primarily (in a logical as well as in a chronological order) a theory about the nature of law and its specificity.

To clarify our interpretative line of thought, we need to define from the beginning the intertwined concepts of exception and decision, which will be considered in more detail below.³ The state of exception is a situation in which a new configuration of social relationships has grown exponentially and increasingly so far as that it prevents the law from being obeyed by changing and corrupting the normal status quo. The impossibility of obeying law is related to the genealogical relationship between norm and normality: ‘Every general norm demands a normal, everyday frame of life to which it can be factually applied and which is subjected to its regulations. The norm requires a homogeneous medium’ (ibid.: 13). The consequent deadlock requires an ultimate decision to be made by the sovereign. By deciding, the sovereign cuts out – that renders the German ent-scheidet, which derives from the Latin de-caedit and then de-cidit – the social configuration, element or group which appears to alter the general homogeneity of the widespread social practices and is thus regarded as responsible for the partial or total impossibility of reaffirming the effectiveness of law (namely, for the un-normal situation).

In order to elucidate further our thesis about the conceptual relevance of the state of exception, it is necessary to redirect our attention to something that is generally dismissed. While scholars usually take heed of the problem as to who is actually the sovereign (be it the Reich President, the Führer or even the Parliament), they tend to underrate the question: Who are the addressees of the actual political outcomes and legal prescriptions decided by the sovereign's intervention? There are two possible answers: on the one hand, private citizens; on the other hand, jurists and, only derivatively, courts and legislative powers. It is evident that the focus of conceptual analysis changes depending on whom Schmitt regards as the proper addressee of the exception process. The first solution refers to what we will denote with the term ‘primary rules’, that is, rules that allow the legal system to affect social reality and are related to its enforcement. The second solution refers to what we will denote with ‘secondary rules’, that is, the rules that institute the legal system and are related to its validity.

In Political Theology, as well as in each of Schmitt's works published in the 1920s, secondary rules are undoubtedly the main concern of Schmitt's investigation into the state of exception and its being crucial to a definition of law. However, in the 1930s works, even though the issue of secondary rules does not disappear, primary rules gradually emerge as the other side of legal theory. As a result, in Political Theology Schmitt regards the concept of exception as both a concrete and a practical solution to the question of sovereignty and a hermeneutic tool for defining the field of law. Both the insights are based on the argument that the foundation of law – as an actual instrument that affects social reality, on the one side, and as a juristic science, on the other side – precedes, under both a practical and a conceptual point of view, the legal system as a whole. In this perspective, legal theory primarily refers to the issue of the foundation of law itself, as far as legal analysis should be able to account for its ground, that is, to demonstrate its autonomy as a criterion for defining its own sphere of intervention.

In short, in the interpretation we propose the foundation of law is nothing but the dark side of the exception. Schmitt's theory of exception should be considered above all as an attempt to make law intelligible, without (or at least before) any reference to an existing legal system. In other words, Schmitt's aim of defining and tracing the boundaries of exception is at one and the same time a practical and a theoretical task. Unfortunately, most of the literature about Schmitt has generally underestimated (when not neglected) the conceptual relevance of his account of this question, so far as that his seminal arguments on the role of exception in defining law have been sacrificed for the apparent centrality of the role of the sovereign, which in turn is sustained by a reductionist decisionism.

Of course, Schmitt's theory, as sketched in Political Theology, does little to clarify the ‘double meaning’ of the concept of exception. Yet, if we turn again to the text with this caution in mind, such a double level – political-practical and legal-conceptual – appears more evident. Let us examine what the author points out in a famous passage: ‘The exception is more interesting than the rule. The rule proves nothing, the exception proves everything: It confirms not only the rule but also its existence, which derives only from the exception’ (ibid.: 15). Such an assertive statement, which may merely appear to be a redundant consideration as to the dialectical relation between rule and exception (‘a romantic irony for the paradox’, as Schmitt himself puts it), is more radical than it might seem at first sight. Here ‘exception’ refers to something that literally exceeds and overruns the rule, not simply in the sense that an enacted rule can hardly encompass a total exception to what it mandates. For, much more saliently, Schmitt's statement implies that there must be a criterion that may allow to establish whether or not the law is in force, that is, in a more Schmittian terminology, whether or not there is an effective order.

Notwithstanding the widespread opinion that he can be at most defined as a legal thinker but not at all as a theorist of law, in the previous passage Schmitt clearly recognizes that there must be a distinctive criterion able to define law's sphere of activity. In this perspective, law seems to be a practice so exceptional that without a rule of recognition derived from its conceptualization one could not even conceive such thing as social order. The perception of the necessity of an ultimate foundation for law explains why Schmitt wonders at the normativists' eschewing the issue:

That a norm or an order or a point of reference ‘establishes itself’ appears plausible to the exponents of this kind of juristic rationalism. But how the systematic unity and order can suspend itself in a concrete case is difficult to construe, and yet it remains a juristic problem as long as the exception is distinguishable from a juristic chaos, from any kind of anarchy (ibid.: 14, emphasis added).

For present purposes, what is relevant in the first chapter of Political Theology is that Schmitt still supports the basic distinction between the exception as a factual necessity and the exception as a legal concept, without combining them with one another. Despite any worry about actual effectiveness which repeatedly seems to induce Schmitt to consider it as a factual problem, throughout the text he emphasizes again and again the legal relevance of the exception as a logical concept:

The exception remains, nevertheless, accessible to jurisprudence because both elements, the norm as well as the decision, remain within the framework of the juristic. It would be a distortion of the schematic disjunction between sociology and jurisprudence if one were to say that the exception has no juristic significance and is therefore ‘sociology’ (ibid.: 12–13, emphasis added).

Then, according to Schmitt, without the concept of exception one could not obtain a sound definition of law, since every legal rule implies exception. But what about the criterion for recognizing the state of exception? Of course, it would be pointless to reverse the dialectical relationship between rule and exception so as to argue that it is the ineffectiveness of the legal rule that can attest to and then automatically enact the state of exception. Unfortunately, determining a state of exception, far from being a clear-cut judgment, involves a high degree of discretion. Intuitively, to recall a Schmittian issue, we should ask: How can it be peremptorily stated when gross misconducts and widespread disorderliness turn from political instability (scarce compliance with the law) into civil war (impossible compliance with the law)? Consequently: When does killing, which is normally considered as a crime (murder), become a legitimate action (self-defence)?

Without hiding or minimizing such a problem of indeterminacy, Schmitt turns it into a fundamental condition for his decisionist solution:

The precise details of an emergency cannot be anticipated, nor can one spell out what may take place in such a case, especially when it is truly a matter of an extreme emergency and of how it is to be eliminated. The precondition as well as the content of jurisdictional competence in such a case must necessarily be unlimited (ibid.: 6–7).

In order to eradicate once and for all this weakness, Schmitt's solution relies on every decision that proves to be able to regulate social reality, regardless of any other procedural criterion: the sovereign ‘decides whether there is an extreme emergency as well as what must be done to eliminate it’ (ibid.: 7). On the basis of these criteria, it is not the sovereign's previous legitimacy that renders her solution into an effective decision. Quite the reverse, it is the concrete effectiveness of the decision that renders a political subject into a legitimate sovereign.

In other words, Schmitt tries to solve the indeterminacy problem by radicalizing it. The sole quality that a potential decision must possess is the capacity to be effective, that is, to restore the political order concretely. Regardless of the source, procedure, substance, and any other possible criterion, if a practical solution is able to obtain obedience and thus general compliance, this is a sufficient condition for the decision to be recognized as valid. But the argument advanced by Schmitt is even more radical, since he extends the lack of any criterion of selection to the very process of decision-making. As a consequence, he leaves completely unexplained the criteria through which the sovereign can actually select a decision, as well as the reasons that induce people, whether consciously or not, to comply with it. It simply happens, like a sort of miracle. Such a creation of order ex nihilo (that is, from an increasing disorder) pays its debt to the theological-political point of view that gives the title to the essay we are discussing here, where Schmitt himself openly claims: ‘The exception in jurisprudence is analogous to the miracle in theology’ (ibid.: 36).

Let us make explicit two conclusions of the present section. Firstly, Schmitt's argument about sovereignty sheds light on the double meaning of exception. On the one hand, it has a practical relevance as to the decisional process that is meant to overcome political disorder. On the other hand, and at the same time, it has a conceptual relevance as to the attempt to define as precisely as possible the science of law as a distinct discipline. Secondly, the conceptual question is the real problem that will haunt Schmitt for a long time and that in Political Theology he tries to solve by adhering to what is generally known as ‘juridical nihilism’. Though this concept is slightly misleading (and is often overemphasized and misapplied), as we have shown above, it can be defined as the lack of any criterion of judgment. Later on⁴ we will try to clarify further the concept at issue in the wider context of Schmittian decisionism, in order to elucidate the reduc-tionism of any nihilist solution to the question concerning the definition of law. Before doing it, however, we have to deal with another possible solution to the challenge of defining law, based on the notion of rule.

1.3. Grounding law: the evident inadequacy of the normativist approach

It is well known that most often Schmitt chooses his polemical targets in accordance with the specific and occasional aims he pursues in a given text. He does not engage in reconstructing accurately the arguments and the context of the author he is criticizi...