Tuesday, May 31, 2005

[Excerpts] Schmitt, Political Theology

Excerpts from Schmitt, Carl (1985) Political Theology, MIT Press. The translation is of the second edition of Political Theology from 1934. The first edition was published in 1922.

I now [1934] distinguish not two but three types of legal thinking; in addition to the normativist and the decisionist types there is the institutional one.
p. 2

Whereas the pure normativists thinks in terms of impersonal rules, and the decisionist implements the good law of the correctly recognized political situation by means of a personal decision, institutional legal thinking unfolds in institutions and organizations that transcend the personal sphere. And whereas the normativist in his distortion makes of law a mere mode of operation of a state bureaucracy, and the decisionist, focusing at the moment, always rund the risk of missing the stable content in every great political movement, an isolated institutional thinking leads to the pluralism characteristic of a feudal-corporate growth that is devoid of sovereignty.
p. 3

Sovereign is he who decides on the exception.
p. 5

The assertion that the exception is truly appropriate for the juristic definition of sovereignty has a systematic, legal-logical foundation. The decision on the exceprion is a decision in the true sense of the word. Because a genaral norm, as represented by an ordinary prescription, can never encompass a total exception, the decision that a real exception exists cannot therefore be entirely derived from this norm.
p. 5-6

The exceprion, which is not codified in the existing legal order, can at best be characterized as a case of extre peril, a danger to the existance of the state, or the like. But it cannot be cirumscribe factually and made to conform to a preformed law.
p. 6

The most guidence the constitution can provide is to indicate who can act in such a case. If such action is not subject to controls, if it is not hampered in some way by checks and balances, as is the case in a liberal constitution, the it is clear who the sovereign is. He decides whether there is an extreme emergency as well as what must be done to eliminate it. Although he stands outside the normally valid legal system, he nevertheless belongs to it, for it is he who must decide whether the constitution needs to be suspended in its entirety.
p. 7

After all, every legal order is based on a decision, and also the concept of the legal order, which is applied as something selfevident, contains whitin it the contrast of the two distinct elements of the juristic – norm and decision. Like every other order, the legal order rests on a decision and not on a norm.
p. 10

What charaterizes an exception is principally unlimited authority, which means the suspensin of the entire existing order. In such a situation it is clear that the stat remains, wheras law recedes. Because the exception is different from anarchy and chaos, order in the juristic sense still prevails even if it is not of the ordinary kind.

The existence of the state is undoubted proof of its superiority over the validity of the legal norm. The decision frees itself from all normative ties anf becomes in the true sense absolute. The state suspends the law in the exception on the basis of its right of self-preservation, as one would say.
p. 12

The exception is that which cannot be subsumed; it defies general codification, but it simultaneously reveals a specifically juristic element – the decision in absolut purity.
p. 13

There exists no norm that is applicable to chaos. For a legal order to make sense, a normal situation must exist, and he is sovereign who definitly decides whether this normal situation actually exists.
p. 13

The exception can be more important to it than the rule, not because of a romantic irony for the paradox, but because the seriousness of an insight goes deeper than the clear generalizations unferred from what ordinarily repeats itself. The exceptions is more important than the rule. The rule proves nothing; the exception proves everything: It confirms not only the rule but also its existance, which derives only from the exception. In the exception the power of real life breaks through the crus of a mechanism that has become torpid by repetition.
p. 15

Sovreignty is the highest, legally independent, underived power.
p. 17

The basis for the validity of a norm can only be a norm; in juristic terms the state is therefore identical with its constitution, with the uniform basic norm.
p. 19

The age-old Aristotelian opposites of deliberation and action begin with two distinct forms; wheras deliberation is approchable through legal form, action is approchable only by a technical formation.
p. 28

All significant concepts of the modern theory of the state are secularized theological concepts not only because of their historical development – in which they were transferred from theology to the theory of the state, whereby, for example, the omnipotent God became the omnipotent lawgiver – but also because of thier systematic structure, the recognition of which is necessary for a sociological consideration of these concepts. The exception in jurisprudence i analogous to the miracle in theology. Only by being aware of this analogy can we appreciate the manner in which the philosophical ideas of the state developed in the las centuries.

The idea of the modern constitutional state triumphed together with deism, a theology and metaphysics that banished the miracle from the world. This theology anf metaphysics rejected not only the transgression of the laws of nature through an exception brought about by direct intervention, as found in the idea of a miracle, but also in the sovereign’s direct intervention in a valid legal order. The rationalism of the enlightenment rejected the exception in every form.
p. 36-37

After the writers of the Restoration developed a political theology, the radicals who opposed all existing order directed, with heightened awareness, their ideological efforts against the belief in God altogether, fighting that belief as if it were the most fundamental expression of the belief in any authority and unity.
p. 50

Every political idea in one way or another takes a position on the “nature” of man and presupposes that he is either “by nature good” or “by nature evil.” This issue can only be clouded by pedagogic or economic explanations, but not evaded.
p. 56

According to Donoso Cortés, it was characteristic if bourgeois liberalism not to decide in this battle but to begin a discussion. He straightforwardly defined the bourgeoisie as a “discussing class,” una clasa discutidora. It has thus been sentenced. This definition contains the class characteristic if wanting to evade the decision. A class that shifts all political activity onto the plane of conversation in the press and in parliament is no match for social conflict
p. 59

Although the liberal bourgeoisie wanted a god, its god could not not become active; it wanted a monarch, but he had to be powerless; it demanded freedom and equality but limited voting rights to the propertied classes in order to ensure the influence of education and property on legislation, as if education and property entitled that class to repress the poor and uneducated; it abolished the aristocracy of blood and family but permitted the impudent rule of the moneyed aristocracy, the most ignorant and most ordinary form of an aristocracy; it wanted neither the sovreignty of a king nor that of the people. What did it actually want?

The curious contradictions of this liberalism struck not only reactionaries such as Donoso Cortés and F. J. Stahl but also revolutionaries such as Marx and Engels.
p. 59-60

Just as liberalism discusses and negotiates every political detail, so it also wants to dissolve metaphysical truth in a discussion. The essence of liberalism is negotiation, a cautious half measure, in the hope that the definitive dispute, the decisive bloody battle, can be transformed into a parliamentary debate and permit the decision to be suspended forever in an everlasting discussion.
p. 63

[D]ecisionism is essentially dictatorship, not legitimacy. [...] [I]n the face of radical evil the only solution is dictatorship, and the legitimist principle of succession becomes at such a moment empty dogamtism. Authority and anarchy could thus confront each other in absolute decisiveness and form a clear antithesis: De Maistre said that every government is necessarily absolute, and the anarchist says the same; but with the aid of his axiom of the good man and corrupt government, the latter draws the exact opposite political conclusion, manelym that all governments must be opposed for the reason that every government is a dictatorship. Every claim of a decision must be evil for the anarchist, because the right emerges by itself if the immanence of life is not disturbed by such claims. This radical antithesis forces him of course to decide against the decision; and this results in the odd paradox whereby Bakunin, the greatest anarchist of the nineteenth century, had to become in theory the theologian of the antitheological and in practice the dictatir of an antidictatorship.
p. 66

1 comment:

Jow Lindsay said...

THANX!! Although Schmitt's being sarcastic when he says "sovereignty is the legally highest underived power."