Crisis, Modernity, Authority, Carl Schmitt On Order and The State - Daniel McLoughlin

CRISIS, MODERNITY, AUTHORITY: CARL
SCHMITT ON ORDER AND THE STATE

Daniel McLoughlin*
The past decade has seen an explosion of interest in the political problem of the emergency, and
legal powers that are appropriate to deal with such situations. This is in no small part due to the
persistent sense of crisis that plagues the politics of our time, from the collapse of the Twin
Towers to that of Lehmann brothers, from the fin-de-siecle threat of Y2K, to the impending
climate catastrophe. This period has also seen a flowering of interest in the work of the jurist Carl
Schmitt, whose Political Theology opens with the now infamous assertion that Sovereign is he who
decides on the exception.1 That is, according to Schmitt, even the most impeccably liberal state
needs to suspend the law to restore political stability when it is faced with an existential crisis.2
This work has provided a focal point for analyses of contemporary crisis politics, with a particular
purchase on the War on Terror, whose political rhetoric of the threat to our way of life,3 and
extra-legal executive practices such as torture, wiretapping, extraordinary rendition, and military
tribunals, have had distinct echoes of Schmitts analysis of the exception.4 An equally important
aspect of Schmitts work is, however, his critique of liberalism as a philosophy of neutralisations
and de-politicisations, that is predicated upon endless discussion and economic and technical
solutions an analysis that has considerable critical purchase on the post-political tenor of our
times, in which ostensibly left wing parties seek to occupy the reforming centre, and the market
rationality of neo-liberalism dominates the political horizon.5
In this paper, I bring together these two elements of Schmitts thought, and these two
aspects of contemporary politics, by highlighting their philosophical underpinnings in a critique
*
1
2
3
PhD Candidate, School of History and Philosophy, University of New South Wales, Sydney 2052. Email:
d_glock@fastmail.fm.
Schmitt Carl Political Theology: Four Chapters on the Concept of Sovereignty Schwab George (trans.) Studies in Contemporary
German Social Thought MIT Press Cambridge Mass 1985 p 15.
As above at 12.
Examples of this rhetoric abound. For an instance from the Australian context, see Howard John Our Proud Record The
Australian 7 March 2008 available at http://www.theaustralian.com.au/news/our-proud-record/story-e6frg73o1111115731350 accessed 18 September 2009.
There has been a proliferation of work around Schmitts account of emergency powers and the War on Terror. For a
small selection, see Paye Jean-Claude Global War on Liberty Telos Press Publishing New York 2007; Scheuerman William
Carl Schmitt and the Road to Abu Ghraib (2006) 13 Constellations 108; Tushnet Mark Meditations on Carl Schmitt,
(20056) 40 Georgia Law Review 877; Levinson Sanford The Deepening Crisis of American Constitutionalism (20056) 40
Georgia Law Review 889; Van Munster Rens The War on Terrorism: When the Exception Becomes the Rule, (2004) 17
International Journal for the Semiotics of Law 141; Arato Andrew The Bush Tribunals and the Specter of Dictatorship, (2002)
9 Constellations 457.
For analysis of post-politics that engages with Schmitt, see the work of Chantal Mouffe, for example, Mouffe Chantal
The Return of the Political Verso London 1993.
135
THE AUSTRALIAN FEMINIST LAW JOURNAL 2009 VOLUME 31
of the relationship between politics and form. Drawing from across Schmitts work, I argue that
his thought is fundamentally structured by an antinomy between the juridical form of politics and
the technical form of instrumental reason. For Schmitt, the juridical form ascribes substantive
value to the world through the decisions of authority while, in its value neutrality, the technical
form is unable to found the political, which requires a decision for an idea and against its
enemies. For Schmitt, liberalism was the dominant form of instrumental reason in the political
sphere of his time, and in the context of a profoundly fractured party politics, he believed that its
value neutrality posed a threat to the survival of the political form of the Weimar Republic.
Against the formalism of technocratic liberalism, Schmitts work on emergency powers then
advocates an authority to decide for the constitution, and against its enemies, thereby restoring
law and order.
Having examined this antinomy in Schmitts work, I conclude by considering how this
might offer us tools for thinking about the contemporary political constellation, by looking at
more recent literature on the exception, liberalism, and the War on Terror. In his State of
Exception, Agamben draws upon Schmitts analysis of state sovereignty to argue that the exception
has, over the course of the twentieth century, become a paradigm of government. In an analysis
that has echoes of Schmitts critique of liberalism and the technical form, Wendy Brown
attributes contemporary security politics to the rise of neo-liberalism, and the instrumentalisation
of law that has occurred with the extension of market rationality to the political sphere. I argue
that these developments undermine the attempt to use the exception to protect the constitution
as political form, instead, leading to a hollowing out of the liberal democratic state. The
contemporary use of the exception is neither the assertion of a political idea nor the production
of order, but rather, a symptom of the disorder and instrumental reasoning of our neo-liberal
times.
1.0 THE POLITICS OF SOVEREIGNTY

In The Concept of the Political, Schmitt writes that all political concepts, images, and terms have a
polemical meaning. They are focused on a specific conflict and are bound to a concrete
situation... (and) are incomprehensible if one does not know exactly what is to be affected,
combated refuted or negated by such a term.6 The concept of sovereignty has been central to the
political-theoretical battles of modernity, ceaselessly redeployed and re-articulated to combat and
refute a variety of enemies. According to Schmitt, the notion of the undivided and absolute
power of the sovereign emerged, along with the modern nation-state, from the political conflict
with the European state of the estates of the late medieval period. From the 13th16th centuries,
there was no central constitution that regulated the people within a territory as a whole, but rather
numerous charters, concessions, letters, etc7 that established a multitude of special rights,
6
7
Schmitt Carl The Concept of the Political University of Chicago Press Chicago 2007 p 301.
Schmitt Carl Constitutional Theory Duke University Press Durham and London 2008 p 97.
136
CRISIS, MODERNITY, AUTHORITY: CARL SCHMITT ON ORDER AND THE STATE
interests, and privileges amongst vassals and class based estates, all of which had a high degree of
political autonomy. According to Schmitt, the unity of the modern state developed when the
monarch claimed to have the highest legal power within its territory: this modern state is
sovereign; its state authority is indivisible, its closed quality and its impenetrability
(impermeableness) follow from the essence of political unity.8 This sovereign claim arrogated the
legitimate use of violence to the state, quelled internal disputes amongst interest groups, with the
individuals legal relationship to the state subsuming all other status relationships. It is in this
epoch that the classical theory of sovereignty as an unchecked power of rule emerged: for Bodin,
sovereignty is the highest power of command9 and Hobbes Leviathan is that Mortall God to, to
which wee owe under the Immortal God, our peace and defence.10
The now dominant political tradition of liberal constitutionalism emerged as a negation of
these sovereign claims to absolute power. According to the liberal thinking of Schmitts time, the
law was not the product of the sovereigns command: rather, the state was a product of the law,
brought into being and regulated by the norms laid down in the constitutional document, and its
powers divided amongst different state organs. Central to this subordination of the state to law
was the elimination of discretion and arbitrariness from the legal system: the rule of law would
allow the state to operate like a technically rational machine.11 In the liberal rule of law state (or
Rechsstaat in the German tradition) all power is to be subordinated to pre-existing norms, a state
in which not men and persons rule, but rather where norms are valid.12
According to Schmitt, however, the liberal and rationalist struggle against the monarchy
did not abolish the problem of sovereignty, but, rather, repressed and transformed it. Schmitts
1922 work Political Theology attempts to revive the concept from theoretical abeyance by turning to
the problem of the emergency situation. He argues that norms are designed to govern normal
conditions that is, a political situation of peace and stability. In order to be effective, then, the
rule of law requires a certain minimum of political order, and this effective normal situation is
not a mere superficial presupposition that a jurist can ignore.13 According to Schmitt, law has its
grounds in political domination and, while conditions of peace and order can lead theory to
forget these origins, the emergency situation brings this presupposition to light. When order
breaks down, and there is external or civil war, it may be impossible for the state to apply the
constitutional legal order. The decision on the exception is the decision that the normal situation
in which the legal system can function has come to an end, and that an exception to the rules
should be created. The sovereign then suspends those parts of the law that place limitations on
the state, allowing it to take action that restores order. Sovereignty is thus defined by the
8
9
10
11
12
13
As above at 101.
Bodin Jean On Sovereignty: Four Chapters from the Six Books of the Commonwealth Cambridge University Press Cambridge p 1.
Hobbes Thomas Leviathan Cambridge University Press Cambridge p 120.
For the canonical account of the rationalisation of modern law, see Weber Max Max Weber on Law and Society Harvard
University Press Cambridge 1954 p 22431. On the relationship between formal legal rationality and the liberal virtues of
freedom and equality, see above at 2289 and; Neumann Franz The Change in the Function of Law in Modern Society
in The Democratic and the Authoritarian State: Essays in Political and Legal Theory Free Press Glencoe Illinois 1957 p 22 at 2839.
Schmitt Carl Legality and Legitimacy Duke University Press Durham and London p 4.
Schmitt above note 1 at 13.
137
exception because, in suspending the law in an emergency situation, an absolute power

unregulated by law emerges. Without this decision, the polity would be open to dissolution and
ruin. As such, while liberal theory argues that the state is the product of the law, for Schmitt the
state is, in the last instance, superior to it, for the sovereign decision produces and guarantees the
situation in its totality.14
This theory of sovereignty was not simply a theoretical treatise on the nature of law and its
conditions of possibility, but rather, one work in a series of essays and books that responded to
the concrete political crises of the newly born Weimar Republic. During the first crisis of the
Republic, from 19191923, Schmitts work was haunted by the prospect of a communist
insurrection and he penned not only Political Theology but also Die Diktator (1921). Both of these
works which criticised the attempt to legally limit emergency powers, arguing that in a genuine
crisis, limiting the power of the state to act is potentially suicidal, and that the state always retains
an ability to act outside the legal limitation of its powers on the basis of a right to selfpreservation.15 During the Republics second crisis (192932) Schmitt became an adviser to the
conservative Papen government, providing legal advice that gave legal justification for a system of
presidential rule under Article 48 that lasted for three years until the Nazi seizure of power.16
Throughout his works on emergency powers, Schmitt advocated a broad reading of Article
48 of the Weimar constitution, which allowed for the suspension of constitutional rights by the
President of the Reich, subject to the consent of the Reichstag, if in the German Reich the public
security and order are significantly disturbed.17 Article 48 stated that the President could take the
necessary measures for the restoration of order, and then enunciated a list of basic rights that the
President could suspend, including those of freedom of the person, of expression, and privacy of
correspondence. According to Schmitt however, the Reichspresident was not limited to the
suspension of these particular rights, for the reference to necessity gave him a maximum of
discretion in responding to emergency.18 While Schmitts works on emergency powers was well
received in many jurisprudential circles, it was nonetheless controversial, and his broad
interpretation of Article 48 was a minority interpretation amongst jurists in his time, most of
whom preferred a legislative clarification and limitation of emergency powers.19
Schmitts argument for the sovereign decision was then a crucial stake in Weimars debates
over the use of emergency powers under Article 48. Whatever one makes of Schmitts own
political decisions in the Weimar context, what makes his analysis of sovereignty both compelling
and problematic for legal theory is that it is not solely grounded in authoritarian political
preferences. Rather, the fundamental driver of the argument is an analysis of what he calls the
14
15
16
17
18
19

The most a constitution can do in the face of the extreme situation is to stipulate who has the power to make a decision.
See Schmitt above note 1 at 7.
On Schmitts role as an advisor to the Weimar government during this final crisis, see as above at 1426 and Kennedy
Ellen Introduction in Schmitt Carl Constitutional Theory Duke University Press Durham and London 2008.
The Weimar Constitution, Article 48.
This interpretation was adopted by the Hindenberg government in 1926. See Bendersky Joseph Carl Schmitt: Theorist for the
Reich Princeton University Press Princeton 1983 p 824.
As above at 75.
138
legal form20 and, as such, Schmitts theory of sovereignty has much to say about the nature of
law and of political authority.
2.0 POLITICS, DECISION, AND THE JURIDICAL FORM

According to Political Theology, while a norm is an abstract and general proposition, all law is
situational law.21 That is, a legal order is only produced in the relationship between juridical
norms, and the socio-political medium of life. There is, however, a gap between the two, which
means that the norm requires a supplement in order to be effective: a decision maker with the
authority to decide. According to Schmitt, the question of who has this authority cannot be
answered by the content of the norm to be decided upon.22 Moreover, it is not the content of the
decision that renders it legal, but rather the competence to decide, because, in the absence of a
pivotal authority, anybody can refer to the correctness of content.23 That is, a legal decision
stands as valid, not because it is normatively correct, but rather, because the decision has been
made by an authority endowed with the competence to decide.
For liberalism, this state authority is a product of the law. For Schmitt, however, a
functioning legal order is only possible in a situation of political peace and stability, which are
guaranteed by a sovereign decision designed to prevent the collapse of state authority and a
descent into civil war. While in the normal operation of the legal system, the two juridical
elements of norm and decision co-exist, in the situation of extreme peril to the state, the two
elements of the concept legal order are then dissolved into independent notions and thereby
testify to their conceptual independence. Unlike the normal situation, in which the autonomous
moment of the decision recedes to a minimum, the norm is destroyed in the exception.24 This
leads Schmitt to a very un-liberal conclusion about the juridical status of the exception. For
liberalism, law is defined solely as the formal norms laid down in the constitution and by
parliament, and without these limitations, the states power is arbitrary and a threat to both
individual liberty and the rule of law. For Schmitt, however, because the decisions of authority are
as much an element of law as the norm, the exception remains a juristic condition and is
accessible to jurisprudence.25
Political Theologys argument for the sovereign exception is thus driven by an analysis of the
juridical form, as a unity of juridical norms and life produced by the decisions of the state, which
makes possible politico-legal order. When this political order is threatened, the role of the
20
21
22
23
24
25

Schmitt writes that every concrete juristic decision contains a moment of indifference from the perspective of content,
because the juristic deduction is not traceable in the last detail to its premises and because the circumstance requiring the
decision remains an independently determining moment Schmitt above note 1 at 30.
139
sovereign decision is to suspend the normative element of the law, in the interests of preserving
the order that is its precondition.26 For Schmitt then, what differentiates the legal form from
other normative forms is the authority of the state, and this is as much a part of the law as the
norm. While the legal norm is a crucial element of the law, there can be no politico-juridical order
without an authority to enforce it, and this authority mediates between the normative abstractions
of the law, and the particularity of life. For Schmitt, the state is the guarantor of order, ascribing
normative meaning to the world through its authority, and without this authority, there can be no
order, only the chaos of competing values.
Schmitts analysis of the juridical form is also crucial to his state-centered account of the
political which, in his 1927 work, The Concept of the Political, he defines through the distinction
between friend and enemy.27 According to Schmitt, the enemy is someone existentially alien and
different, so that in the extreme case conflicts with him are possible,28 and it is the present
possibility of a life and death struggle with the enemy that gives the political entity its decisive
character, insofar as it decides who the enemy is.29 Schmitts account of politics then appears to
be purely formal and negative, a political grouping only being defined over and against an enemy
and the potential for deadly conflict with it. There is also, however, a positive and substantive
dimension to Schmitts definition. The enemy is existentially different because it is hostile to
ones own politics: as he writes in Roman Catholicism to the political belongs the idea, because
there is no politics without authority and no authority without an ethos of belief.30
Constitutional Theory, a critique of liberalisms formal constitutionalism published the same
year as The Concept of the Political, makes clear the substantive dimension of Schmitts political
thought. In Schmitts account, liberal theory views the constitution as a document that contains a
plurality of individual constitutional provisions: what he calls the relative concept of the
constitution.31 For Schmitt, by contrast, a concept of the constitution is only possible when one
distinguishes between constitution and constitutional law,32 and a constitution, as opposed to
constitutional laws, is:
26
27
28
29
30
31
32
In a similar vein, Schmitts Roman Catholicism argues that the Catholic Church is a truly political organisation because it is
an exemplar of authority and its juridical logic. For Schmitt, Catholicism evades the modern dualism of form and
substance, as it is characterised by neither the irrationality of ecstatic religious experience, nor the abstract rationality of
relativistic formalism. Instead, the rationality of the church is that of the legal form, expressed in juridical institutions
whose interest is the normative guidance of human beings, and which morally encompasses the psychological and
sociological nature of man and, unlike industry and technology, is not concerned with the domination and exploitation of
matter Schmitt Carl Roman Catholicism and Political Form Greenwood Publishing Group Westport Connecticut 1996 p 13.
The Catholic Church then gives a substantive meaning to the world through the juridical form, its authority laying down
norms for the guidance of human behaviour and thereby generating political order.
140
the concrete, collective condition of political unity and social order of a particular state ...
The state does not have a constitution, which forms itself and functions according to a state
will. The state is constitution, in other words, an actually present condition, a status of unity
and order. The state would cease to exist if this constitution, more specifically, this unity and
order, ceased to exist. The constitution is its soul, its concrete life, and its individual
existence.33
For Schmitt then, the constitution is the soul of the laws, the type and form of the political
unity,34 a unity of form and substance. A political grouping is only possible on the basis of an
idea, and the juridical form gives a normative meaning to the world by translating the idea into
political reality, the authority of the state mediating between the normative abstractions of the
idea, and the particularity of life. It is this ability to decide for a substantive value and to realize it
within the world that raises individuals up out of the pursuit of their individual interests, and
gives to them their being as a unified political entity. While Schmitt is renowned for his political
analyses of the extreme cases of civil and external war, this analysis is an expression of his belief
that no political system can survive even a generation with only naked techniques of holding
power.35 It is not control over the means of violence, but rather, popular belief in the justification
of the state that ensures its ongoing stability and unity.
3.0 THE STATE AND THE MACHINE

For Schmitt, the heyday of the juridical form and political unity was the absolute state of early
modernity, a time in which it was meaningful to identify the concepts state and political. For
the classical European state had achieved something fantastic: it established an internal peace that
excluded enmity as a legal concept.36 Schmitts work then characterises modernity as a fall away
from this originary condition of political unity, associating this with the rise of formal rationality
and metaphysical immanence. Perhaps the clearest articulation of Schmitts critique of this formal
rationality can be found in Roman Catholicism and Political Form, a work written at the same time as
Political Theology. While the text is an analysis of the unique political authority of the Catholic
Church, it is profoundly structured by a critique of the immanent and machine-like quality of
modern thought, or what Schmitt calls in Roman Catholicism economic-technical rationality. For
Schmitt, modern economy is dominated by a form of reason that is formally rational, and yet
substantively empty, blind to the purposes it serves. As he writes, Modern technology easily
becomes the servant of this or that need. In modern economy, a completely irrational
consumption meets a totally rationalized production. A marvelously rational mechanism serves
one or another demand, always with the same earnestness and precision, be it for a silk blouse or
33
34
35
36

Schmitt Carl Die Deutsche Geisteswelt fur Liste 1 62 Volkischer Beobacher in Kennedy Ellen Constitutional Failure: Carl
Schmitt in Weimar Duke University Press Durham and London 2004 p 34.
141
poison gas or anything whatsoever.37 In modern technical thought, formal precision meets a
formless, irrational matter, and the objective world is deprived of all value aside from its ability to
contribute to the productive process. While this mode of thought is exceedingly successful in
efficient growth, it is blind to moral questions, and in capitalism, a mechanism of production
serving the satisfaction of arbitrary material needs is called rational without bringing in to
question what is most important the rationality of the purpose of this supremely rational
mechanism.38
This critique of instrumental reason is something that Schmitt shares with a number of
thinkers of his time, from both left and right, from Max Weber to Martin Heidegger. However, as
a jurist and political theorist, Schmitts analysis is particularly useful in its focus on the impact of
formal rationality on the juridico-political sphere, and his intimate deconstruction of the
theoretical edifice of liberalism as the dominant political expression of instrumental reason.39
For Schmitt, the philosophy and institutions of liberalism are fundamentally shaped by the
neutrality and objectivity of formal reason. For liberalism, freedom is conceived of as negative
liberty, the freedom from interference by the state, which is thereby confined to securing the
conditions for liberty and eliminating infringements on freedom.40 This is undergirded by the
anti-political fantasy of a utopia in which things manage themselves, the ideal of the marketplace
as an objective and impersonal mechanism, in which the pursuit of private interest will, guided by
the free hand, add up to the public good, rendering politics and the state unnecessary.41 Further,
the liberal state is conceived as being a purely neutral mechanism for the arbitration of social
conflicts through the formal mechanism of parliamentary democracy. As Schmitt puts it then, in
the Rechsstaat, law, statute and legality are neutral procedural mechanisms and voting
procedures that are indifferent to content of any sort and accessible to any substantive claim.42
Liberalism is then, for Schmitt, a theory not of the state and politics, but rather a theory of how
to limit and negate the state as having a substantive reality of its own, instead conceiving it as a
merely technical apparatus for facilitating free competition and the self-organisation of society.
While Schmitts critiques of liberalism are many and varied, the fundamental problem with
the application of formal rationality to the political is that it undermines the foundations of the
political, for it is hostile to the very essence of politics the idea. Instead, it grounds itself in the
immanence of the economic, which has its own reason and veracity in that it is absolutely
material, concerned only with things. The political is considered immaterial, because it must be
concerned with other than economic values.43 Technical reason does not know any substantive
value, and as such, is unable to ascribe normative meaning to the world and to found a politics,
and is, in fact, hostile to the political:
37
38
39
40
41
42
43

As Gulli points out, Schmitts anti-liberalism does not consist of opposing something to liberalism, but of deconstructing
liberalism from a peculiar, genealogical point of view. Gulli above note 6 at 1604.
142
Today nothing is more modern than the onslaught against the political. American financiers,
industrial technicians, Marxist socialists, and anarchic-syndicalist revolutionaries unite in
demanding that the biased rule of politics over unbiased economic management be done
away with. There must no longer be political problems, only organizational-technical and
economic-sociological tasks. The kind of economic-technical thinking that prevails today is
no longer capable of perceiving a political idea.44
Claiming it has no enemies, only economic competitors and debating adversaries,45 liberalism
negates the state and the constitution as a locus of value, and reduces public political concerns to
private moral or economic ones:46 liberal thought evades or ignores state and politics and moves
instead in a typical always recurring polarity of two heterogeneous spheres, namely ethics and
economics, intellect and trade, education and property.47 Schmitts concern with this, was that
while the Weimar constitution was an expression of nineteenth century liberalism, the forces of
modern rationalism and technology had, in the meantime, profoundly transformed the social and
political fabric of European society.48 According to Schmitt, the development of industrialization
and mass society, the expansion of the franchise and the rise of class based party politics, had
changed the nature of European parliamentary democracy seeing the emergence of what he calls
the pluralist party state. The Weimar parliament was not the gentlemans club of the liberal ideal,
in which compromise was reached through rational debate and reciprocal persuasion. It was,
rather, profoundly fractured amongst stable party organisations, a power politics of business
calculations and negotiations based on strength of numbers, in which individual parliamentarians
simply conformed to party discipline. Moreover, according to Schmitt, these political parties
acted, not in the interests of Germany as a whole, but rather, on behalf of the particular interests
they represented,49 using the state as an instrument in the pursuit of power, a tactical means in
the struggle carried on by one party against another and by all of them, against the state and the
government.50 This pluralist party politics of the Weimar state was so fractured, that parties who
were hostile to the existence of the state had substantial political support, with the Communists
posing the major threat during the Republics first crisis, along with the Nazis during its second.
For Schmitt then, the possibility of political order was in his time, being threatened by the
development of the technical: indeed, Schmitt asserts, citing Marx, that technology is the true
revolutionary principle, beside which all revolutions based on natural law are antiquated forms of
recreation.51 It was in this context that he argued that the value neutral functionalism of the
political and legal thought of his time had become a threat to the survival of the polity. For
44
45
46
47
48
49
50
51

For the most detailed treatment of the relationship between Schmitts political thought and his critique of modern
technology, see McCormick John Identifying or Exploiting the Paradoxes of Constitutional Democracy? An Introduction
to Carl Schmitts Legality or Legitimacy in Schmitt above note 13.
143
Schmitt, the neutrality of the liberal state does not take plurality seriously enough, for, in
attempting to act as a neutral mediator of social conflict, it fails to see the particularity of its own
form, and that this may stand in existential political conflict with others.
While the existence of the state as such is the focus of much of his work on emergency
powers, in his 1932 work, Legality and Legitimacy, he also emphasizes the importance of its
particular form to this existence, and the danger posed to it by a value neutral functionalism,
manifest in two particular problems. If the Rechsstaat is completely neutral towards the laws that
are passed by parliament, and anything is legal, without presuppositions or conditions52, then,
under conditions of extreme antagonism within the polity, there is the possibility that a party
could use the political and legal premium that attaches to office in order to outlaw opposition
parties, thereby abolishing the doctrine of the equal chance. Second, Article 76 of the
Constitution allowed for constitutional amendment on the basis of a two-thirds majority.
According to Schmitt, the prevailing formalist interpretation of this section was that the
constitution was neutral with regard to the content of the amendments that, as such, could be
used to fundamentally alter the state form.53 Combined with the explosive divisions of Weimar
politics, then, the formalist approach to the constitution offered up the means for a legalised coup
detat, in which the fundamental presuppositions of the constitution were abolished from within
by perfectly legal means.54
Schmitt argued, however, that while the liberal state can be neutral with regard to many
things, it may not be neutral toward itself and its own presuppositions.55 The Weimar
constitution is not simply a set of neutral rules for Schmitt, but rather, the form of the particular
type of state, a bourgeois Rechsstaat. This state form has certain basic features which are essential
to its continued existence as that particular type of state, including the idea that all parties should
have an equal chance to obtain power, and the idea of a statute as a general norm with definite
content, as opposed to a particular decree. Moreover, for Schmitt, the bourgeois Rechsstaat is
structured by certain basic principles, in particular, the general liberty rights such as freedom of
speech and private property, which define the social structure of an individualistic order.56 For
Schmitt, these undergird the statutory and constitutional laws that define and regulate the state,
and as such, contain a supra-legal dignity, which raises them above every regulation of an
organisational and constitutional type facilitating their preservation as well as over any individual
regulations of a substantive law variety.57
According to Schmitt, the dominant interpretation of the constitution in his time was one
in which value neutrality is taken to the extreme of absolute neutrality towards itself and offers
the legal means for the elimination of legality per se. Hence, value neutrality here is pushed to the
52
53
54
55
56
57

This concern proved rather prescient, given the Nazi ascension to power in 1933.
144
point of system suicide.58 While liberalism is philosophically grounded in the neutrality and
objectivity of formal reason, he regarded this as pushing the idea to absurd extremes. For
Schmitt, while liberalism is hostile to the state, it nonetheless maintains a repressed alliance with
the political idea,59 insofar as the bourgeoisie relied upon the state and a minimum of law,
particularly in the form of property and contract, to maintain their class dominance.60 For
Schmitt, then, constitutional matters should be read in light of the existence of the state, and as
such, when a constitution envisions the possibility of constitutional revisions, the constitution
does not intend to provide, for example, a legal method for the elimination of its own legality.61
Likewise, in his work on sovereignty and emergency powers, Schmitt illuminates the dependence
of the rule of law upon state authority, arguing that while liberalism aspires to universal
normativity, it cannot ever achieve this goal if the state is to survive, as it is necessarily grounded
in an authority that it must defend against its enemies.62 In both of these contexts, Schmitts
constitutionalism attempts to revive the seed of political transcendence and state authority that is
the presupposition of liberalism and bourgeois class dominance, yet which is effaced by the
formalism of its thought.
4.0 MODERNITY, AUTHORITY AND CRISIS

Driven by the antinomy he establishes between the substantively empty rationality of the
technical form, and the juridical form as a unity of form and substance, idea and authority,
Schmitt casts the early modern sovereign state as a unified political entity capable of decision, and
modernity as a fall away from this originary unity into the valueless immanence and political
divisions of bourgeois liberalism and mass democracy. According to Schmitt, liberalism is the
dominant expression of the technical in the sphere of politics, with its institutions and conceptual
apparatuses being shaped by the values of neutrality, objectivity and universality. Schmitt
believed, however, that while liberalism attempts to tame state authority through the rule of law,
it remains a form of authority, dependent upon the state to maintain its order. He argued that the
58
59
60
61
62
Schmitt makes this comment apropos the work of Gerhard Anschutz. See Schmitt above note 13 at 48.
Indeed, while Schmitt advocated for emergency presidential powers, he also argued against constitutional revision, arguing
that this would undermine the stability of the Republic by producing further antagonism and division. See Bendersky
above note 19 at 174, 1812.
It is only the work of the revolutionary left that seeks the overthrow of the state at the realization of the classless society,
that sees the definitive radicalization of technological immanence, and the abolition of state authority. For Schmitt,
however, it is the state that provides order, and as such, a stateless condition would be the worst of all disorders: a society
built exclusively on progressive technology would thus be nothing but revolutionary; but it would soon destroy itself and
its technology. Schmitt above note 26 at 27.
While the equal chance can only be extended by those in power to those parties that would, likewise, extend it to them,
Schmitt was at the same time aware of the dangers posed by declaring parties enemies, insofar as it denied the neutrality of
the liberal state. This is, for Schmitt, a fundamental tension at the heart of the neutrality of the liberal state, and had the
potential to create fundamental political instability. See Schmitt above note 13 at 3336.
145
neutrality of jurisprudence had been pushed to absurd extremes, to the point that the Weimar
constitution was considered to be indifferent to its own survival. For Schmitt, by contrast, even a
liberal constitution is grounded in particular decisions about its form, and must defend this form
against its enemies: and as such, liberalism depends upon the suspension of the law as its obscene
underside, to maintain its hegemony when the normative order can no longer guarantee this end.
Elements of this critique of liberalism and the economic-technical, such as Schmitts praise
of the political dimension of the Catholic Church, and his narrative of the political fall from
modern absolutism, appear to exhibit a conservative mourning for the passing of traditional
authority. Despite this, Schmitts work is resolutely modern, accepting the fundamentally
democratic co-ordinates of modernity, and the radically contingent grounds of any modern
political order. This means that for Schmitt, the problem of the crisis of authority lies at the heart
of political modernity, for there is no longer a transcendent, substantive ground that can
legitimate the state. Instead, any state is made possible by a necessarily ungrounded decision for a
particular political form, which thereby produces a particular normative universe. Schmitts
critique of liberalism is that it does not accept the fundamental trauma of modernity, its neutrality
and universalism effacing the presupposition of legal order in an ungrounded decision for a
particular form. Nonetheless, even the rechstaat contains fundamental decisions about its form,
and must be prepared to identify its enemies if it is to survive. Against liberal formalism, Schmitts
thought then attempts to find sources of stability for the state within the horizon of democratic
modernity.
Many of his responses to the political dilemmas faced by the liberal state are profoundly
authoritarian and problematic for any left politics. In light of his concern with the possibility of
state order, Schmitt does not define politics or democracy in terms of contestation between
parties within the state, or reasoned and rational discussion in a public sphere, but as the unity of
the political order and the will of the people as a whole. Moreover, with a pessimistic view of
human nature that he identifies as typical of thinkers of the political,63 for Schmitt it is always the
state that provides political order, holding back the forces of division and civil war that flow from
the normative anarchy of individual interest. For Schmitt, the state, the political-theological katechon or strength that restrains,64 holding back the civil war threatened by the revolutionary
forces of a technical and individualist modernity. As Ellen Kennedy has written of Schmitts
account of democratic legitimacy in Constitutional Theory, Schmitts assertion that the cohesive will
of all society must be represented in the state obviously identifies him, most immediately, as a
theorist of the strong executive, as an antipluralist, and so, clearly, as an authoritarian statist.65
Nonetheless, while Schmitts statist emphasis on unity is authoritarian, it does not demand
of politics a radical homogeneity, and is certainly not the biological racism that he would later
endorse along with the Nazi party. In Constitutional Theory, Schmitt makes it clear that political
unity is something different or additional to ethnic unity, the result of either a historical
63
64
65

Gulli Carlo Carl Schmitts Anti-Liberalism: Its Theoretical and Historical Sources and Its Philosophical and Political
Meaning (2000) 21 Cardozo Law Review 1607.
Kennedy above note 17 at 45.
146
consciousness of unity, or a social contract.66 Moreover, he also asserts that, as long as there is a
genuine underlying unity in the form of a capacity for decision, a government can get along with
a minimum of homogeneity of the people and could form a political unity out of national,
confessional or diverse class-based human groups.67 For Schmitt, the politico-juridical is
characterised by a political idea, and the juridical form as the union of an idea and a decision
produced by the state. Political unity is then evidenced in the decision for a constitutional form,
and against the enemies of that form, and so long as the state and a people remain capable of
defending their constitution against its enemies, they remain a unified political entity. The
minimum demand of the juridical form is that of a capacity for decision, in the making present of a
unity that is, for the most part, absent.
While Schmitts analysis of the exception draws upon the nature of authority and the
juridical form, his advocacy for emergency powers was very much tied to the concrete situation
of the Weimar Republic. According to Schmitt, the need for emergency powers in Weimar
Germany was the product of a deep political and philosophical malaise, a crisis of legitimacy for
the 19th Century liberal conception of the state and a hollowing out of the institutions of liberal
democracy. For Schmitt, the profound political changes wrought by modernity and technology,
including the return of enmity within the nation-state and the rise of mass democracy and party
politics, meant that the legal categories of liberalism, born of 19th century bourgeois hegemony,
no longer corresponded to the material reality of German politics and society. The concrete
situation of Weimar Germany was, for Schmitt, one in which the value neutrality of the rule of
law had become a threat to the political unity and order of the German nation, given the
fractured parliament and street violence between parties opposed to the existence of the
Republic. As such, Schmitt believed that this necessitated the assertion of temporary dictatorial
powers by the Reichspresident, and the concomitant suspension of the Reichstag and the normative
juridical order.
5.0 THE DECISION TODAY?

The role of emergency powers in the passage from Weimars liberal liberal democracy, to the
totalitarian state of Nazism is one of the most controversial aspects of Schmitts career for, as
Giorgio Agamben writes, Hitler probably could not have taken power had the country not been
under a system of presidential dictatorship for nearly three years and had parliament been
functioning.68 While this is no doubt true, what Agamben leaves open here, is whether the
presidential system was an executive seizure of power that undermined the ability of parliament
to rule, or whether it was a response to the fractured political situation within the Reichstag. The
presidential system was heavily criticized at the time as being an attempt to subvert the
66
67
68
On the relationship between political unity and social contract, see Schmitt above note 8 at 112. On the historical
production of political unity, see Schmitt above note 8 at 99.
Agamben Giorgio State of Exception University of Chicago Press 2005 p 15.
147
constitution by stealth,69 and Schmitts work during the Papen government is today often cast in
similar terms: as John McCormick writes of Schmitts 1932 Legality and Legitimacy: In Schmitts
attempt to pass off a constitutionally abrogating emergency dictatorship as a constitutionally
preserving one, we witness the transformation of dictatorship from a temporary and task-specific
constitutional practice to the modern political phenomenon best represented by the example of a
military junta.70 On the other hand, Bendersky highlights the dysfunction of the Reichstag, and
argues that it was the fact that the Weimar state remained neutral towards the Nazi party that
allowed it to come to power.71 In this interpretation, it was not an excess of decision, but rather,
the failure of the liberal state to correctly identify its enemy, that led to its downfall. Indeed,
according to Schmitt in 1933, it was only the emergency measures of the President that had held
back the total disintegration of the Republic in the face of the serious divisions of in the
Reichstag: were it not for one of the last pillars of the Weimar constitutional order, the President
of the Reich, with his authority from before the pluralist time, it is quite probable that chaos
would have been here in all its obtrusiveness and outward manifestation, and any pretense of
order would have disappeared.72
I want to conclude, not by considering the role of emergency powers in the hollowing out
of the Weimar state, but rather, by considering how the structuring opposition of Schmitts
thought, that between the transcendence of state authority and the anti-political immanence of
liberal thought, can provide theoretical tools for understanding the contemporary political
constellation. There are crucial differences between the political situation of Weimar, and that of
Western liberal democracies today. Unlike Weimar, in which the liberal state was newly minted,
liberalism has been, for some time, the seemingly unchallengeable political horizon of the West.
Nonetheless, Schmitts analysis has much to say to this situation for, just as the emergency
powers of Weimar were a symptom of a deeper crisis of legitimacy for the liberal conception of
the state, as a range of contemporary thinkers have argued that the use of the exception today is
symptomatic of a broader crisis of liberal democracy.73
In State of Exception, Giorgio Agamben places Schmitts account of the exception in the
context of a modern history of the use of emergency powers by democratic governments, an
analysis that encompasses not only the executive suspension of the law, but the laws that transfer
emergency powers from the legislature to the executive. Arguing that the concept of necessity
69
70
71
72
73
On Weimar criticism of the presidential system and Schmitts role in it see Bendersky above note 19 at 169.
McCormick John Identifying or Exploiting the Paradoxes of Constitutional Democracy? An Introduction to Carl
Schmitts Legality or Legitimacy in Schmitt above note 13 at xiii.
Bendersky above note 19 at 185. Ellen Kennedy similarly argues that in the early 1930s, the Republic was in a state of
political paralysis. However, she is more circumspect about the role of the political elites than Schmitt or Bendersky,
writing that it is clear that the Republics elites did not serve it well at key points. The governments under President von
Hindenburg in the final crisis of the Republic (those of Bruning and Schleicher) were at best not committed to exploring
options for governing with parliament, if they existed. At worst, these governments were intent on undermining the
Republic and replacing it with their preferred alternative (Papen). Kennedy above note 17 at 25.
Schmitt Carl Four Articles: 19311938 Plutarch Press Washington DC p 27.
See, for example, Agamben Giorgio Homo Sacer: Sovereign Power and Bare Life Stanford University Press Stanford 1998;
Agamben above note 69; Brown Wendy Neo-Liberalism and the End of Liberal Democracy (2003) 7 Theory and Event;
Zizek Slavoj Berlusconi in Tehran (2009) 31 London Review of Books 3.
148
that justifies emergency powers is a profoundly indeterminate one, Agamben notes that over the
twentieth century, the situations in which it has been considered necessary to use emergency
powers has been liberated from the military context in which it originally emerged, to become a
routine practice in western democracies used to deal with a range of problems from internal
dissent and strikes to economic crises. This problem of the migration of the exception is
evidenced in the contemporary Australian context in the extension of emergency powers from
being a response to the pseudo-military paradigm of the War on Terror, to the normal criminal
law.74 For Agamben then, the exception now constitutes a paradigm of government, in which
legality is increasingly perforated by zones of executive discretion justified by reference to
security, hollowing out the rule of law, and its fundamental doctrines of the separation of powers
and rule according to pre-existing norms.75 As Agamben puts it then, at the very moment when it
would like to give lessons in democracy to different traditions and cultures, the political culture of
the West does not realize that it has entirely lost its canon.76
Drawing on and simultaneously broadening Schmitts analysis of the exception, Agambens
work provides us with a diagnosis of the hollowing out of the liberal democratic state over the
twentieth century, in which the politics of the War on Terror are a part of a much longer
historical process. What is missing, however, from Agambens analysis, and which is crucial to
Schmitts thought, is the analysis of economic thinking and its role in political crisis. The
relationship between liberalism and emergency powers is, however, central to the work of the
political theorist Wendy Brown who, like Agamben, analyses the politics of security in terms of a
crisis of liberal democracy. However, where Agamben focuses on the hollowing out of the rule of
law over the twentieth century, Brown positions contemporary security politics as one part of a
broader political crisis produced by the corrosion of liberal democratic values. For Brown, this is
attributable to the rise, since the 1970s, of neo-liberalism as a distinctive new governmental logic,
a specific form of normative political reason organizing the political sphere, governance
practices, and citizenship77 that extends market values to all institutions and social action.78
74
75
76
77
78
To cite but two recent examples from NSW, the Law Enforcement (Covert Search Warrants) Act 2009 (NSW), has extended
the regime of secret searches under the Terrorism Act to other areas of general policing. Similarly, the Crimes (Criminal
Organisations Control) Act 2009 (NSW), has seen the extension of the control order regime first introduced in response to
the terrorist threat to our way of life, to the ostensible threat posed by bikie gangs. For commentary on the latter, see
Loughlin Arlie The Legislation We Had to Have? Crimes (Criminal Organisations Control) Act 2009 (NSW) (2009) 20
Current Issues in Criminal Justice 457.
Agamben above note 69.
Agamben above note 69 at 18.
Brown Wendy American Nightmare: Neoliberalism, Neoconservatism and De-Democratization (2006) 34 Political Theory
690 at 693.
Brown above note 74 at 7. While Agamben provides a crucial genealogy of the state of exception in the first half of the
twentieth century, it must be said that his analysis stops just after World War Two, characterising the post-war period as
one in which the exception has become the rule. While there can be little doubt that the politics of this period has been
framed by the paradigm of war, from the Cold War through the War on Drugs, even if this period is one in which the
exception has become the rule as Agamben argues, his account is rather vague, and fails to account for political
transformations within this historical period. While the use of exceptions has, by no means, simply occurred as a
response to terrorist attacks since September 11 2001, there can be little doubt that the War on Terror has seen an
149
The left has long been critical of liberal democracy as being a mask for the inequalities of
the capitalist economic system. However, Brown asserts that the distinction between the public
political morality of liberal democracy, grounded in principles such as equality and freedom, and
the rational calculation associated with economic values, has historically provided a modest
ethical gap between the two spheres, with the political morality of democracy acting as a certain
limited brake upon the amorality of economic calculation.79 However, according to Brown, the
neo-liberal colonisation of all spheres of life by the rationality of the market has reconfigured
political action and morality as the rational calculation of market actors. This has broken down
the distinction between public and political on the one hand, and the private and the economic
on the other. By applying the logic of the market to politics, neo-liberalism divests politics of the
principles that undergird the rule of law and democracy, and we witness a radical
instrumentalisation of the state, which now gains its legitimacy primarily from the cost benefit
analysis of policies as tested through the marketplace.80 Under such conditions, law comes to be
understood not as a principled institution, but as a mere instrument of governance, to be
deployed according to criteria of market rationality.81 It is this instrumentalisation of the law that
explains the proliferation of states of exception for, while states of exception may violate the
principles of liberty and equality that undergird liberal democracy, they can, nonetheless, be
perfectly consonant with the demands of the marketplace.82 As Brown puts it Civil liberties are
perfectly expendable within this conception of our way of life; unlike property rights, they are
largely irrelevant to homo oeconomicus. Their attenuation or elimination does not falsify the project
of protecting democracy in its neo-liberal mode.83
While Browns analysis draws upon Foucault rather than Schmitt, and emphasizes the
break that neo-liberalism represents with previous liberal-democratic formations, there is much in
her critique that resonates with Schmitts analysis of the politics of liberalism and its relation to
the technical form.84 Schmitt warned that the value neutral functionalist approach to the
constitution, the application of the purely formal rationality of the market to the state, would
hollow out the Rechsstaat, by undermining the substantive decisions that informed the Weimar
79
80
81
82
83
84
intensification of the use of exceptional states. Browns argument provides a compelling account of the shifts in political
rationality that account for this.
Brown above note 74 at 22.
Brown above note 74 at 24; Brown above note 78 at 695.
See also Zizek above note 74.
Brown notes the similarity between her diagnosis and the Weberian critique of instrumental rationality, upon which
Schmitt draws. At the same time, however, she is careful to distinguish her Foucauldian reading of neo-liberalism from
both Marx and Weber, or more precisely, from the teleology that inheres in their thought. For both these thinkers, and
also, to a certain extent, for Schmitt, there is a process of an automatic historical unfolding that occurs in the
development of capitalism and rationalisation. As Brown writes, however Neo-liberalism is not an inevitable historical
development of capital and instrumental rationality suggested by a Marxist or Weberian analysis, but represents instead a
new and contingent organisation and operation of both Brown above note 74 at 21. While Brown makes an important
anti-teleological point apropos the development of neo-liberalism, Schmitts critique of the relationship between the
technical and juridical form nonetheless still has purchase.
150
constitution. Brown similarly diagnoses the collapse of liberal democracy as a political idea, or set
of substantive values, through which the political is colonised by the purely instrumental logic of
the marketplace.
Of course, there are also crucial differences between the two analyses. Schmitts statist
concern with the development of technology and the extension of technical thinking to the
political sphere, was that the fragmentation of the state by the party politics of mass democracy,
combined with a vacillating liberalism that was incapable of recognizing the authority, would
bring about the collapse of law and state authority, thereby leading to civil war. From the
perspective of the left, by contrast, the concern with the extension of the logic of the market to
the state is not the issue of order, but rather, the possibility of political struggles for justice.
Despite the leftist critique of the gap between the ideals of liberal democracy and the reality of
capitalist inequality, this gap nonetheless provided a crucial means for the excluded to stake a
claim for political transformation by pointing to the gap between a political system that promised
equality, and an economic system that entrenched inequality.85 By erasing the modest ethical gap
between economy and politics, the neo-liberal marketisation of politics closes down the
possibility for this form of struggle by politically legitimating the inequalities of the capitalist
economic system.
Schmitts work is profoundly structured by the antinomy between the juridical form, as a
unity between a political idea and life that produces a particular constitutional form, and the pure
formalism of technical reason. Schmitt was deeply worried by the threat to political order posed
by the development of the economic technical, and the alleged weakness of liberal formalism,
which was incapable of accepting the fundamental trauma of political modernity, the radically
ungrounded nature of the state, and instead, elided the political in favour of the economic and the
ethical. Against this, Schmitt advocated a sovereign decisionism that would preserve the order
and unity of the state by deciding for the existing political order, and against its enemies. In our
own neo-liberal epoch, however, the politics of the relationship between law, authority, and the
economic-technical form is somewhat different. The extension of value neutral functionalism to
the state through neo-liberal governmentality has seen neither the fracturing of the state through
party pluralism, nor a vacillating state incapable of decisions. Instead, we are witness to the
closure of political imagination around a technocratic neo-liberal orthodoxy, accompanied by the
emergence of an increasingly authoritarian state that uses the law in a purely instrumental fashion.
While we have seen an increasing political authoritarianism and a decreasing space for
claims for justice grounded in political principle, these developments do also pose problems from
the Schmittian perspective of law and order. The aim of the sovereign decision was the
production of order in the face of exceptional circumstances, and by suspending the law, the
sovereign decision would re-assert order, authority and the political idea, against the anomic
forces of technicism being brought to bear upon the state, assuring the dialectic between the
normal and the exceptional situations, and between norm and anomie. However, as Agamben
asserts, when the exception becomes the rule, the machine can no longer function... Sovereign
85
Brown note 74 at 32. For a detailed analysis of the importance of this gap for political struggle, see Jacques Ranciere Who
Is the Subject of the Rights of Man (2004) 104 South Atlantic Quarterly 297.
151
decision is no longer capable of performing the task that Political Theology assigned it: the rule,
which now coincides with what it lives by, devours itself.86 When the exception becomes normal,
it can no longer perform its crucial task, that of the unity and order of the constitution and state
by deciding against its enemies and for the political idea that undergirds it.
While the political discourses surrounding contemporary security politics, those of an
existential threat to our way of life as justifying emergency measures that abrogate fundamental
rights, has distinct echoes of Schmitts call for decisions that will defend the constitution, as
Brown points out, our way of life has now been reconfigured in a neo-liberal rather than
classically liberal democratic idiom, that is, as the ability of the entrepreneurial subject and state to
secure the conditions, at home and abroad, for a market rationality and subjectivity by removing
impediments to them.87 While the rhetoric of security politics claims to be preserving the liberal
democratic order against its enemies, it neither protects liberal democratic principles, nor
produces order. The exception is deployed today based on the contingent demands of the
marketplace, rather than a decision against an enemy and for a political or constitutional idea.
Rather than a sovereignty that produces law and order by distinguishing between normal and
exceptional, authoritarian neo-liberalism is, instead, a politics of the administration of the
absence of order.88 z
86
87
88
Agamben above note 69 at 58.

Brown above notes 72 at 25.
Agamben Giorgio Interview with Giorgio Agamben Life, A Work of Art Without an Author: The State of Exception,
the Administration of Disorder and Private Life (2004) 5 German Law Journal 610 at 611.
152
Copyright of Australian Feminist Law Journal is the property of Socio-Legal Research Center, Griffith Law
School and its content may not be copied or emailed to multiple sites or posted to a listserv without the
copyright holder's express written permission. However, users may print, download, or email articles for
individual use.

Crisis, Modernity, Authority, Carl Schmitt On Order and The State - Daniel McLoughlin

Transféré par

Informations du document

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Crisis, Modernity, Authority, Carl Schmitt On Order and The State - Daniel McLoughlin

Transféré par

Droits d'auteur :

Formats disponibles

CRISIS, MODERNITY, AUTHORITY: CARL

SCHMITT ON ORDER AND THE STATE

THE AUSTRALIAN FEMINIST LAW JOURNAL 2009 VOLUME 31

1.0 THE POLITICS OF SOVEREIGNTY