Carl Schmitt between Technological Rationality and Theology

The Position and Meaning of His Legal Thought

Hugo E. Herrera

• Publisher: SUNY Press
• Year: 2020
• Print ISBN: 9781438478784, 9781438478777
• eBook ISBN: 9781438478791
• Topic: Philosophy
• Subtopic: Jurisprudence

Situates Schmitt's legal scholarship in the context of debates regarding whether his thought was more theological or technocratic.

Carl Schmitt, one of the most influential legal and political thinkers of the twentieth century, is known chiefly for his work on international law, sovereignty, and his doctrine of political exception. This book argues that greater prominence should be given to his early work in legal studies. Schmitt himself repeatedly identified as a jurist, and Hugo E. Herrera demonstrates how for Schmitt, law plays a key role as an intermediary between ideal, conceptual theory and the complexity of practical, concrete situations. Law is concerned precisely with balancing the extremes of theory and reality, and in this respect, Schmitt associates it with philosophical thinking broadly as being able to understand and explain the tensions in human experience. Reviewing and analyzing prevailing interpretations of Schmitt by Jacques Derrida, Heinrich Meier, and others, Herrera argues that the importance of Schmitt's legal framework is both significant and overlooked.

Chapter 1

Law and Technology

Jacques Derrida’s Interpretation

In Derrida’s lengthy treatment of Schmitt’s thought, the latter appears bound to a calculating and controlling rationality in which the exceptional and the otherness of the other are neglected. Within this framework, Schmitt’s thought conceives the individual as a spontaneous subject that becomes involved with the other in an inquisitive and determining manner. In the juridical and political spheres, this conception is expressed by the non-problematized affirmation of a sovereign subject who places the other in front of her and decides in a manipulative way.

Derrida says that Schmitt understands the subject classically, that is, as an active spontaneity, identical to itself and—insofar as it is active and identical—as a “calculable permanence.”¹ That spontaneous and permanent “identity” is invulnerable; it is a nonreceptive activity. Such a subject is incompatible with the advent of the “event” and the experience of “the other.”² The “eventness of an event” and the experience of “the other,” if they take place, must overstep the boundaries of the objective or phenomenal order.³ An authentic event is that which is not predictable based on the initial conditions.⁴ And every “other” is an “originary non-presence,” which retracts before the attempt of a phenomenalizing determination.⁵ Opening to the event and the other, to the possibility of their advent, requires exposition, receptivity, passivity, vulnerability—a ceasing of the objectifying activity and control on the part of the individual.⁶ This requirement, according to Derrida, cannot be fulfilled by the Schmittian subject.

The Schmittian subject emerges by establishing a distance regarding the other. This distance has an inquisitive character. The spontaneous subject enters into a relation with the other by putting the latter “into question.”⁷ By means of this inquisitive attitude, the subject places the other before her. The inquisitive attitude proceeds through a determining language that persists in the general identity of concepts and rules. The individual is thus unacknowledged in her depth of alterity and singularity, and brought into “the order of phenomenology” established by the subject.⁸

The ability to fix existence in definitions subjects the other to stable and general rules. Derrida affirms that “the very definition of the definition” supposes “hostility.”⁹ The active “putting in front inquisitively” is an operation that is ultimately violent. This inquisitive violence accompanies philosophy from its very beginning. “The history of the question, starting with the question of being, likewise for the entire history governed by it (philosophía, epistémê, istoría, research, inquest, appeal, inquisition, requisition, and so forth), could not have taken place without polemical violence, without strategy and without arms techniques.”¹⁰ The inquisitive subject’s putting into question is not, then, just theoretical, but also—and fundamentally—practical. Thinking that starts by questioning ends up turning the other into someone subjected to the violent activity of questioning.

Yet even if the other is fixed through language, through inquisitive and generalizing activity, and is thus reduced to the “order of phenomenology,” her alterity is not thereby abolished.¹¹ “The other appears as a being whose appearance appears without appearing, without being submitted to the phenomenological law of the originary and intuitive given that governs all other appearances.”¹² Questioning, then, amounts to reducing by means of hostile treatment, which nevertheless does not eliminate the other’s existential depth. In that depth there subsists an indetermination, a “novelty,”¹³ an irreducible “eventness.”¹⁴

With the questioning of the inquisitive subject, the other, unknown in her alterity, ends up being placed in front as a subject brought for questioning, as an “enemy.”¹⁵ Inquisitiveness and hostility ultimately go hand in hand.¹⁶ The Schmittian subject of “the theory of the exception and of sovereignty” operates on this basis.¹⁷ The sovereign decision in the state of exception is but the last consequence of Schmitt’s conception of the subject. Facing the event, the exception, the sovereign subject takes the initiative by means of the decision that sets the other apart, thus avoiding the experience of her eventness and otherness.¹⁸

The Schmittian subject is thus doubly invulnerable. First, as the questioning subject, she puts before her, in a controlled phenomenal manner, anything confronting her. To this epistemological control, which impedes the subject from being approached by an event and an alterity that surprises her and alters her identity, another control is added, namely, that of the sovereign subject that makes a decision in exceptional situations. By means of the technical-juridical mechanism, she suppresses the other as an enemy. The correlate of the Schmittian subject’s invulnerability is an other that is doubly excluded. First, the other is submitted to “the order of phenomenology.” Thus, her alterity, which resists that order, is neglected. Second, the other is excluded precisely insofar as the subject of the decision tries to subdue the “exceptional situation” and abolish the irruption of what is radically other.¹⁹

For Derrida, the juridical rationality works in an eminently controlling manner not only in the situation of exception, but also in normality. I think it is important to clarify that I use the term “normality” in a relative sense, to allude to the situation generated once the juridical-political exception has been suspended. In truth, total normality never takes place. The singular, the other, are present not just in juridical-political exception, but also during peacetime, bringing into crisis the rules of understanding and law. Derrida shows that the juridical rationality always hosts within itself, even in normal situations, a controlling potential.

In normality there is imposition inasmuch as the singularity and concreteness of the situations are, in principle, heterogeneous from the generality of the rules.²⁰ Derrida states it thus: “How are we to reconcile the act of justice that must always concern singularity, individuals, irreplaceable groups and lives, the other or myself as other, in a unique situation, with rule, norm, value or the imperative of justice which necessarily have a general form … ?”²¹ The law as rule is always in tension with the singularity both of the situation and of the other.²² The problem of manipulation, therefore, is not only a menace to Schmitt’s doctrine of the state of exception, where the individual is placed under a violent and hostile decision. The problem also arises regarding the law in the normal situation, for the individual is in a way reified and manipulated by being understood on the basis of rules that reduce her singularity.

In the case of the law of normality, the agent who must reach a juridical decision occupies an ambivalent position, according to Derrida. The normal and continual functioning of the law may lead to a mechanical application of it—a law that is general and allows for calculation regarding the other. In this case, the subject protects herself under the law, merely enforcing it, treading on the other’s singularity.²³ The one making the decision acts as a “calculating machine.”²⁴ This way of operating is a form of nonexposition of the subject, similar to that of the sovereign decision or of the active inquiring. In all these cases the subject shields herself with some machinery.²⁵ But in juridical normality a second possibility opens itself, namely, taking responsibility for the decision and for the search for justice, altering the literal sense of the law if necessary. “For a decision to be just and responsible, it must, in its proper moment if there is one, be both regulated and without regulation; it must conserve the law and also destroy it or suspend it enough to have to reinvent it in each case, re-justify it, at least reinvent it in the reaffirmation and the new and free confirmation of its principle.”²⁶ This way of acting enables an openness to the alterity of the other, because it rests on a noninquisitive attitude, an attitude of exposition and receptivity. To a certain extent, the one making the decision makes it passively, letting herself be approached by the alterity of the advening other.²⁷

Derrida submits the conception—which he thinks operates in Schmitt’s works—of an autonomous and inquisitive subjectivity to a severe critique. This critique opens the path for a way of understanding, within a juridical context, that makes it possible to grasp the other without reducing her (or at least without reducing her as much). According to Derrida, the inquisitive subject is not ultimately original. He also tries to show that, although the generalizing violence of every concept and of human understanding cannot be completely subdued, it can in fact be relativized.

Human beings come into existence and become conscious through speaking, which refers each of them to an other. Speaking with an other presupposes vulnerability, receptivity—an openness to a previous alterity. The “putting into question” is preceded by an “acquiescence [Zusage]” in speaking.²⁸ That “acquiescence” is “more originary than the question.”²⁹ The acquiescence in speaking entails an openness and a relation to the other, a common participation in language. Derrida calls this relation “friendship prior to friendships.”³⁰ This relation is what makes questioning possible.³¹ Before questioning, human beings must already find themselves in language, and such finding-oneself-in-language always entails being found next to an other in language, that is, it entails the experience of an initial heteronomy. “The very possibility of the question, in the form of ‘what is … ?,’ thus seems, from the beginning, to suppose this friendship prior to friendships, this anterior affirmation of being-together in allocution.”³² In this sense, it could be said that the other is prior to the self: “The other is the condition of my immanence.”³³ The acquiescence regarding the other in language is a requirement for the constitution of one’s own immanence. In the beginning, there is no identity, but difference: the remission of autonomy to a heteronomy.

The openness to the other, the acquiescence in language, the friendship prior to friendships, are preceded by a “perhaps”—by an indeterminacy.³⁴ The latter announces what Derrida considers to be a basis in the structure of language.

The language with which one thinks and questions is not some set of self-identical meanings in the hands of an already constituted subject. Language is, according to Derrida’s interpretation of Ferdinand de Saussure’s thesis,³⁵ a “play of differences.”³⁶ “Every concept”—says Derrida—“is necessarily and essentially inscribed in a chain or a system, within which it refers to another and to other concepts.”³⁷ Saussure illustrates this dependency with the following example: “Within the same language, all words used to express related ideas limit each other reciprocally; synonyms like French redouter ‘dread,’ craindre ‘fear,’ and avoir peur ‘be afraid’ have value only through contact with others.”³⁸ If one of those words disappeared, the meaning of the others would change.

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Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgments
• Foreword
• Introduction
• Chapter 1 Law and Technology
• Chapter 2 Law and Theology
• Chapter 3 Juridical Thought
• Notes
• Works Cited
• Index
• Back Cover