Little room for exceptions: on misunderstanding Carl Schmitt

ABSTRACT

Carl Schmitt is generally considered as the father of exceptionalism – the theory that the heart of politics lies in the sovereign power to issue emergency measures that suspend everyday normality. This is why his name comes up anytime state governments, whether liberal or not, impose limits on constitutional rights and freedoms to cope with emergencies. This article problematises such a received understanding. It argues that Schmitt held an exceptionalist view for a limited period of time and that even in that period his thinking cannot be regarded as unshakably exceptionalist. This interpretation offers a new entry point to Schmitt’s overall theory. While it can hardly be defended from allegations of reactionary conservatism, it remains a juristic theory of the legal order that tries to answer the question of what ensures the stability of social life. The backdrop of this view is an institutional theory of law and politics that is hardly reconcilable with any form of exceptionalism. In this light, the core of Schmitt’s thinking turns out to be the exaltation of legal science as a jurisgenerative practice that shelters a community’s institutional practices and the traditional identity.

KEYWORDS:

• Decisionism
• exceptionalism
• institutionalism
• political theology
• Schmitt

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Bonnie Honig harbours no doubt that ‘Schmitt’s accounts of emergency and sovereignty have captured the imagination of political theory for the moment’ (Bonnie Honig, Emergency Politics: Paradox, Law, Democracy (Princeton: Princeton University Press, 2009), xv). Similarly, Nomi Lazar states that ‘Carl Schmitt in particular dominates the field of emergency powers, and his legacy is the assimilation of emergency to the exception and suspension of rules and norms’ (Nomi C. Lazar, States of Emergency in Liberal Democracies (Cambridge: Cambridge University Press, 2009), 3). While commenting on the revival of emergency politics after the 9/11 terrorist attack and similar attacks in Spain and the U.K., William Scheuerman emphasises that ‘Schmitt’s ideas about states of emergency have come to play a major role in political and legal debate’ (William Scheuerman, ‘States of Emergency’, in The Oxford Handbook of Carl Schmitt, ed. Jens Meierhenrich and Oliver Simons (Oxford: Oxford University Press, 2016), 547–69, 547). In this sense, the prevailing view is that Schmitt is initiator of emergency politics. It is no surprise, then, that Schmitt’s name comes up in articles discussing the recent pandemic crisis in various jurisdictions. A couple of examples will suffice: ‘The South African concept of lockdown highlights the unresolved tension between the Schmittian political exception and the normative order under the Disaster’ (Klaus Kotzé, ‘Responding to COVID-19: Emergency Laws and the Return to Government in South Africa’, Javnost – The Public (2020). DOI:10.1080/13183222.2021.1844503, 11); the constitutionally authorised suspension of the operation of the normative state to face the pandemic in Hungary evidences ‘true arbitrariness worthy of a Schmittian sovereign’ (Csaba Győry and Nyasha Weinberg, ‘Emergency Powers in a Hybrid Regime: The Case of Hungary’, The Theory and Practice of Legislation 8, no. 3 (2020): 329–353, 351). As we will clarify as we go along, the Schmittian literature in the last decades has privileged an interpretation that to a greater or lesser extent supports this use of Schmitt’s political theology. See in particular the following section and fn. 4 of this article.

2 It is unquestionable that Schmitt’s thinking on the exception continues to be of relevance and that scholars who deal with emergency politics take issue with him. For some, the presence itself of Schmitt gives an ominous tinge to the debate. For example, with reference to Bruce Ackerman e Cass Sunstein, among others, David Dyzenhaus takes as ‘a depressing fact that much recent post 9/11 work on emergencies is also supportive of Schmitt’s view’ (David Dyzenhaus, ‘Schmitt V. Dicey: Are States of Emergency Inside or Outside the Legal Order?’, Cardozo Law Review 27, no. 5 (2005): 2006–40, 2016).

3 The literature on this issue is voluminous. See e.g. Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton: Princeton University Press, 1948); David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge: Cambridge University Press, 2006); Honig, Emergency Politics; Lazar, States of Emergency in Liberal Democracies; Victor V. Ramraj, ed., Emergencies and the Limits of Legality (Cambridge: Cambridge University Press, 2008).

4 We advanced this claim in Mariano Croce and Andrea Salvatore, The Legal Theory of Carl Schmitt (Abingdon: Routledge: 2013); Mariano Croce, 'The Enemy as The Unthinkable: A Concretist Reading of Carl Schmitt’s Conception of the Political', History of European Ideas, 43, no. 8 (2017): 1016–28. Two books that address Schmitt’s political theology as the quintessence of his thinking are C. Galli, Genealogia della politica. Carl Schmitt e la crisi del pensiero politico moderno (Bologna: il Mulino, 2010, second edition) and M. Nicoletti, Trascendenza e potere. La teologia politica di Carl Schmitt (Brescia: Morcelliana, 1990). In particular, Galli argues that Schmitt’s 1922 text is intended to show how and why modern politics cannot count on any ultimate solution to chaos and is doomed to rest on recurring extreme measures that are as necessary as they are affected by unredeemable contingency. On this view, political theology, along with its allusion to the extra-human dimension of the miracle, indicates the impossibility for modern sovereignty to hinge on a stable foundation. Unfortunately, in this article we cannot provide a detailed scrutiny of such an influential reading, which has long oriented the interpretation of Schmitt’s political theology. However, ours can also be read as an alternative to it. It also deserves mention that at present the literature which reduces the relevance of exceptionalism in Schmitt’s oeuvre is growing. Instructive examples are David Bates, ‘Political Theology and the Nazi State: Carl Schmitt’s Concept of the Institution’, Modern Intellectual History 3, no. 3 (2006): 415–42, and Jens Meierhenrich, ‘Fearing the Disorder of Things: The Development of Carl Schmitt’s Institutional Theory, 1919–1942’, in The Oxford Handbook of Carl Schmitt, ed. Jens Meierhenrich and Oliver Simons (Oxford: Oxford University Press, 2016), 171–216. This article differs from these works insofar as it does not downplay Political Theology but offers a new contextualisation for a new interpretation of it, and also explains how it relates to previous and successive Schmitt’s texts.

5 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (1922) (Chicago, IL: University of Chicago Press, 2005), 5.

6 Dyzenhaus, The Constitution of Law, 39. Giorgio Agamben’s influential reading particularly insists on the exception not being a simple dictatorship ‘but a space devoid of law, a zone of anomie in which all legal determinations – and above all the very distinction between public and private – are deactivated’ (Giorgio Agamben, State of Exception (Chicago: The University of Chicago Press), 50).

7 On the twofold function (that is, both political and theological) of the metaphor of the ‘miracle’ aspect, see Honig, Emergency Politics, 87–111.

8 An excellent work to make one’s way into the enduring polemic between Schmitt and Kelsen is Lars Vinx, The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law (Cambridge: Cambridge University Press, 2015). The specific controversy that the book translates, and that is pithily introduced by Lars Vinx, is successive to Schmitt Political Theology, as it takes place at the beginning of the 1930s.

9 This explicit marginalisation of all empirical elements is visible in Kelsen’s major works of the 1910s and the 1920s, from the Hauptprobleme der Staatsrechtslehre, entwickelt aus der Lehre vom Rechtssatz (1911) to the Allgemeine Staatslehre (1925). It is thoroughly thematised in texts such as Der soziologische und der juristische Staatsbegriff (1922) and the later Reine Rechtslehre (1934), which systematises Kelsen’s so-called ‘Pure Theory’.

10 Nadia Urbinati, and Carlo Invernizzi Accetti, ‘Editors’ Introduction’, in The Essence and Value of Democracy, ed. Hans Kelsen (Lanham: Rowman & Littlefield, 2013), 1–24, 12.

11 It is impossible to summarise the impressive amount of works that have been devoted to Kelsen’s legal theory. So, we will limit ourselves to mentioning three books that are particularly useful for understanding his theory of the Grundnorm and the role it plays in Kelsen’s overall system. See Stanley Paulson and Bonnie Litschewski Paulson, eds., Normativity and Norms: Critical Perspectives on Kelsenian Themes (Oxford: Oxford University Press, 1998); Luis Duarte D’Almeida, John Gardner, and Leslie Green, eds., Kelsen Revisited: New Essays on the Pure Theory of Law (Oxford: Hart Publishing, 2014); Lars Vinx, Hans Kelsen’s Pure Theory of Law: Legality and Legitimacy (Oxford: Oxford University Press, 2007).

12 Hans Kelsen, Introduction to the Problems of Legal Theory: A Translation of the First Edition of the Reine Rechtslehre or Pure Theory of Law (Oxford: Oxford University Press, 1992), 57.

13 It seems to us that Political Theology II proves beyond all doubt – of course with the limitations of any retrospective interpretation, mostly when provided by the author – that Schmitt’s main interest is very far from any theological speculations on politics. A few quotes will suffice to illustrate this point: ‘The book [Political Theology] does not deal with theological dogma, but with problems in epistemology and in the history of ideas: the structural identity of theological and juridical concepts, modes of argumentation and insights' (Carl Schmitt, Political Theology II: The Myth of the Closure of any Political Theology (1970) (Malden, MA: Polity Press, 2008), 42). In a similar vein: ‘(42) [the analysis developed in Political Theology] belongs to the research area of the history of law and sociology' (148). Even more clearly, Schmitt defines Political Theology – that is now interpreted in a perspective that takes for granted the institutional turns leading to a concrete-order approach to politics – as a ‘ that juridic book' (49). Finally, and more generally, the entire Chapter 3 makes the point that the mundane counterpart of theology is not – or at least, no longer – politics, but jurisprudence (misleadingly translated as ‘(49). of law' (108)).

14 Jan-Werner Müller, ‘Critical Theorist or Katechon? New Literature on Carl Schmitt’, History of European Ideas 24, no. 2 (1998): 161–8, 164.

15 Stefan Korioth, ‘The Shattering of Methods in Late Wilhelmine Germany. Introduction’, in Weimar: A Jurisprudence of Crisis, ed. A. J. Jacobson and B. Schlink (Berkeley: University of California Press, 2000), 48.

16 There are exceptions to this, such as Weber, Targets of Opportunity, which brings out the shift from Political Theology. Other instructive works on this 1923 book are John P. McCormick, ‘From Roman Catholicism to Mechanized Oppression: On Political-Theological Disjunctures in Schmitt’s Weimar Thought’, Critical Review of International Social and Political Philosophy 13, no. 2–3 (2010): 391–8, which stresses its theological significance; and Gavin Rae, ‘The Theology of Carl Schmitt's Political Theology’, Political Theology 17, no. 6 (2016): 555–72, which instead questions the sincerity of Schmitt’s allegiance to Catholic theology.

17 Carl Schmitt, Roman Catholicism and Political Form (1923) (Westport, CT: Greenwood Press, 1996), 8.

18 Ibid., 30.

19 Ibid., 8.

20 Ibid., 32.

21 Ibid., 53.

22 Ibid., 7.

23 One further line of inquiry should be the various frictions between Dictatorship (1921) and Political Theology. These two writings are considered as deeply intertwined, to the point that, according to Giorgio Agamben’s State of Exception, the concept of sovereignty that Schmitt deploys in Political Theology would not be understandable without the theory of sovereign dictatorship that we find in the 1921 text. The main reason why this reading can be questioned is the role of the jurists in the declaration of the state of exception (absolutely decisive in Dictatorship, less than ancillary in Political Theology). However, we will have to leave this discussion for another article, as this would require too much space in the present one.

24 Mariano Croce and Andrea Salvatore, The Legal Theory of Carl Schmitt; Mariano Croce and Andrea Salvatore, 'After Exception. Carl Schmitt’s Legal Institutionalism and the Repudiation of Exceptionalism', Ratio Juris, 29, no. 3 (2016): 410–26.

25 See Ingeborg Maus, ‘The 1933 “Break” in Carl Schmitt’s Theory’, Canadian Journal of Law and Jurisprudence 10, no. 1 (1997): 125–40.

26 See Ville Suuronen, ‘Carl Schmitt as a Theorist of the 1933 Nazi Revolution: “The Difficult Task of Rethinking and Recultivating Traditional Concepts”’, Contemporary Political Theory (2020). DOI:10.1057/s41296-020-00417-1.

27 Schmitt, Political Theology, 2–3.

28 Although their significance is unquestioned, there are only few works on Hauriou and Romano in the Anglophone scholarship. For Hauriou, see Albert Broderick, ed., The French Institutionalists: Maurice Hauriou, Georges Renard, Joseph T. Delos (Cambridge, MA: Harvard University Press, 1970); and Christopher B. Gray, The Methodology of Maurice Hauriou: Legal, Sociological, Philosophical (Amsterdam: Rodopi, 2010). Instead, Romano has been at the centre of a recent revival. See among others Marc De Wilde, ‘The Dark Side of Institutionalism: Carl Schmitt Reading Santi Romano’, Ethics & Global Politics 11, no. 2 (2018): 12–24; Lars Vinx, ‘Santi Romano Against the State?’, Ethics and Global Politics 11, no. 2 (2018): 25–36. For a recent reappraisal of the legacy of classic institutionalism, see Martin Loughlin, Political Jurisprudence (Oxford: Oxford University Press, 2017).

29 We embarked on a detailed analysis in Mariano Croce and Andrea Salvatore, The Legal Theory of Carl Schmitt; Mariano Croce and Marco Goldoni, The Legacy of Pluralism: The Continental Jurisprudence of Santi Romano, Carl Schmitt, and Costantino Mortati (Stanford: Stanford University Press, 2020).

30 Schmitt, Political Theology, 3.

31 A key difference separating Schmitt from both Hauriou and Romano is that the latter two scholars, contrary to Schmitt, do not restrict the domain of institutions to the consolidated institutions of a national tradition. Although the differences between these two authors cannot be underrated, both Hauriou and Romano think of institutions as normative contexts possessing an internal order comprising rules and principles of their own. So, they do consider all associations and organisations as normative contexts, whether or not they are internal to a traditional culture.

32 We offered such an analysis in Mariano Croce and Andrea Salvatore, The Legal Theory of Carl Schmitt, 30–76.

33 Schmitt often makes reference to such figures as the good father of family, the brave solider, the loyal bureaucrat as models that serve as examples for all those who occupy those very roles.

34 Carl Schmitt, ‘Aufgabe und Notwendigkeit des deutschen Rechtsstandes’, Deutsches Recht 6, no. 9–10 (1936): 181–5, 183.

35 A first version of this important conference, prepared for a series of public speeches (which Schmitt delivered in almost all cases in occupied countries) traces back to the last months of 1943. Yet, the text finally published in 1950 was subject to various changes and several amendments regarding the very structure of the essay as well as some crucial points. Despite the relevance of what can be thus considered as a novel text more than a revised one, we cannot expand on this aspect here (see Richard Mehring, ‘Carl Schmitts Schrift Die Lage der europäischen Rechtswissenschaft’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 77, no. 4 (2017): 853–75).

36 Carl Schmitt, ‘The Plight of European Jurisprudence’ (1950), Telos 83 (1990): 35–70, 57.

37 Schmitt, Political Theology, 13.

38 Armin von Bogdandy, ‘The Current Situation of European Jurisprudence in the Light of Carl Schmitt’s Homonymous Text’, MPIL Research Paper 8 (2020): 1–35, 6.