Lessons from Carl Schmitt: Political Theology, Executive Power and the "Impact of Political Events"

There can be little doubt that Carl Schmitt's Political Theology: Four Chapters on the Concept of Sovereignty (1922) has turned out to be one of the most important texts in modern political thought--for better or for worse. In a broad attack on both traditional state law theory and philosophical liberalism, Schmitt seeks to ground the political order of the modern state in what has aptly been called a "metaphysics of existence."[1] Postulating a structural analogy between jurisprudence and theology, Schmitt introduces a concept of sovereignty that is not derived from basic constitutional norms, as in the case of left-liberal legal scholars in Weimar Germany like Hans Kelsen.[2] Instead, Schmitt defines sovereignty almost exclusively from the perspective of the state of emergency--"the exception," as he notes (p. 5). Political order, in other words, cannot be safeguarded by constitutional provisions, but by an extra-legal authority, that is, by that which by definition cannot be part of constitutional arrangements (pp. 7, 11-12).[3]

Given the much-discussed crisis of liberalism in the late twentieth century, which ironically emerged contemporaneously with the end of the cold war, Schmitt's theories continue to fall on much fertile ground, even though most scholars are cautious enough to point out that they do not share the implications of Schmitt's thought.[4] Indeed, Schmitt himself--despite his rhetoric of Eigentlichkeit, his rhetoric of expressive authenticity--was well aware that his own thought was in many ways marked by the political surroundings of the early 1920s. Only a few years after its inauguration, the Weimar Constitution had proved increasingly fragile. While external political and social circumstances made it difficult to realize many of the central constitutional provisions, and while the presumed unity of the new German state after the First World War was threatened by a great variety of interest groups and radical political parties, many scholars of public law in Germany were critical about the validity of the constitutional provisions.[5] In contrast, for instance, to Kelsen, whose neo-Kantian legal positivism led him to assume that constituonal order could be derived from a "basic norm" entirely void of any actual political content, Schmitt opted for a radicalized version of the Hobbesian paradigm: emphasizing that the authority of the state is based on the "exception" and on the sovereign's "monopoly to decide," he concluded, "authority proves that to produce law it need not be based on law"(p. 13) With this step Schmitt distanced himself both from Max Weber and from Kelsen, whose position he attacked in much detail in Political Theology (pp. 18-24).[6]

It is interesting to see, of course, that the first edition of Political Theology was published shortly after the Weimar Constitution showed signs of distress and that the slightly revised second edition, published in 1934, came out after a series of political events that had entirely dissolved the constitutional provisions of the Weimar Republic: the "coup against Prussia" in 1932, the Nazi seizure of power in 1933, and the so-called Röhm Putsch of 1934, which allowed Hitler to eliminate any competition for power within the NSDAP.[7] The disappearance of the Weimar Republic frames Schmitt's theoretical speculations about the origin of political order. As he noted himself: "When theories and concepts of public law change under the impact of political events, the discussion is influenced for a time by the practical perspectives of the day. Traditional notions are modified to serve an immediate purpose. New realities can bring about ... a reaction against the 'formalistic' method of treating problems of public law" (p. 16).

Clearly, the German editions of Political Theology were part of this process, but it is also interesting to realize that the same can be said with regard to its English translations. When George Schwab's first translation was published by MIT Press in 1985, the cold war was at its height and the political realities of a world dominated by Pershing and SS-20 missiles suggested a global version of Schmitt's friend-enemy distinction favored in The Concept of the Political (1932) that flew in the face of political idealism.[8] Schmitt himself died in April 1985. When the second English edition, with an added foreword by Tracy B. Strong, was published last year, these realities had changed once again. Schmitt's thought proved to be enormously adaptable and, after September 11, was repeatedly used to show how central "concepts of public law change under the impact of political events," as he put it in 1922 (p. 16).

Seen against this background, the new edition of Political Theology is noteworthy more for Stong's new foreword, running over 29 pages, than for the translation itself. As far as I am aware, the translation has not been revised or updated in any way and is identical to the 1985 edition. Schwab follows Schmitt's German with much accuracy and delivers an elegant translation that leaves nothing to be desired. The translation itself is based on the second German edition of Schmitt's text from 1934, which notoriously omits some passages from the 1922 edition, in which Schmitt cited favorably from the work of the German-Jewish legal scholar Erich Kaufmann (p. 1) At the same time, it is important to note that Schmitt does not (not even in his foreword to the 1934 edition) explicitly endorse the National Socialist movement. Schmitt's precise relationship to the National Socialist establishment, together with his antisemitism, is a matter of debate among Schmitt scholars. Possible responses range from an outright denial of Schmitt's antisemitism, as in Gopal Balakrishnan's The Enemy (2000), to a reduction of Schmitt's thought as exclusively antisemitic, as in Raphael Gross's study on this subject.[9]

As is often the case, Schmitt's own position becomes much clearer once we take into account which understanding of public law he criticizes: "liberal normativism and its kind of 'constitutional state'"--largely the position of Kelsen, but also the Weimar Constitution as a whole--are described as "distorted," "deteriorated" and "degenerate" (pp. 1, 3). Although Strong also cites these passages, he does not note the rhetoric of degeneration that marks Schmitt's foreword to the second edition of Political Theology (pp. vii-xxxv, xxiii )--a rhetoric that cannot be found in the first edition of 1922.

The alternative to what Schmitt regards as a degenerate normative liberalism can be found in a passing reference to the "elements of the political unity"--that is, "state, movement, people"--which, needless to say, is a less direct way of simply noting that the ideal political order is a one-party state (p. 3).[10] Ironically, however, Schmitt himself, striving for a strong authoritarian state, does not realize that the identity of state, movement and people actually replaces the very concept of the modern state with a "völkisch" notion of political unity.[11]

But back to Strong's foreword, which--as I have noted earlier--is the most interesting part of this new edition of Political Theology. Much of what Strong has to say is, of course, of an introductory nature and intended to make a wider audience familiar with Schmitt's thought. For students who first encounter Schmitt's ideas this particularly welcome contribution situates Political Theology in the wider debates of modern political thought. Indeed, Strong's new foreword is more concise and balanced than George Schwab's original introduction, which is also included in this edition. Although the bibliographical references in the footnotes were obviously compiled in a hurry and often lack precise page numbers, places of

publication, and so on, this well-written and well-researched introduction reaches far beyond Political Theology. It might be doubted that Schmitt really was the "leading jurist during the Weimar Republic"--at least it seems so from our own point of view at the beginning of the twenty-first century, when Hugo Preuss and Kelsen are rarely read in any detail (p. vii). Schmitt clearly was the most controversial and most public of the Weimar jurists and, as a consequence, Strong is particularly interested in Schmitt's transition from conservative public lawyer in 1922 to outspoken member of the NSDAP between 1933 and 1936.

Schmitt's alliance with the National Socialists is a tricky issue, especially since it tends to polarize much recent scholarship along ideological faultlines not always fruitful with regard to a better understanding of Schmitt's political and legal thought. Strong himself opts for an interpretation that seeks to take into account the ambiguities of Schmitt's own remarks on this matter before, during and after the Second World War. Precisely because it is certain to be controversial, and precisely because it nevertheless seeks to achieve a more neutral ground, I should like to quote his interpretation at length: "The present volume, reissued with a new foreword but otherwise 'unchanged' in a second edition in November 1933, after Schmitt had joined the Nazi party, can ... be read on one hand as a document relevant to Schmitt's decision to see himself as allied with the NSDAP, and what that allegiance meant. To see the choice that Schmitt (or Heidegger, or many other German philosophers, theologians, artists, as well as people from all walks of life--not just in Germany, and not just then) made as blind or ignorant or born from venal ambition, is, I think, to misunderstand their thought and their life. It is also to sweep under the table what appeared as the appeal and apparent necessity of such a movement, and to avoid serious engagement with why it appeared as such.... Schmitt came, as did Heidegger, from a rural, Catholic, petit-bourgeois upbringing" (pp. x-xi; xxix).

At least to some extent, then, Schmitt's background influenced his attraction to a radical expression of power that could be found in the absolutism of Catholic doctrine as well as in a certain understanding of the political that already gained shape in the final years of the Wilhelmine Empire. Indeed, this attraction to power becomes obvious in his recently published diaries from 1912 to 1915.[12] But once he had positioned himself more clearly as a constitutional lawyer critical of the Weimar "Parteienstaat," Schmitt's Catholicism, coupled with a fascination for authority, shaped a body of constitutional thought, the implications of which brought him ever closer to a political order that was diametrically opposed to liberal parliamentarism. Strong thus concludes: "[I]t is the reality of taking power and manifesting sovereignty in the use of power that attracted Schmitt: his understanding of law required that he support Hitler" (p. xxxi).[13] Schmitt's thought between 1922 and 1934 is characterized by a remarkable continuity that remains a central aspect of his writings even after the Second World War. But, Strong, as we shall see, is also interested in why Schmitt remains relevant today.

Written in April 2005, Strong's foreword presents us with a detailed account of both current Schmitt scholarship and the main trends of the current reception of Schmitt's thought by both left-wing and right-wing interpreters. This foreword is written with verve and clarity, looking back at Schmitt's definition of sovereignty from the perspective of a post-9/11 world, in which a number of liberal democratic states have introduced a new set of emergency powers, often bypassing constitutional arrangements and directly strengthening executive power. Defining state sovereignty from the point of view of a decision that needs to cover the exceptional case not anticipated by existing constitutional provisions, Schmitt famously noted: "Sovereign is he who decides on the exception.... The assertion that the exception is truly appropriate for the juristic definition of sovereignty has a systematic, legal-logical

foundation. The decision of the exception is a decision in the true sense of the word. Because a general norm, as represented by an ordinary legal prescription, can never encompass a total exception, the decision that a real exception exists cannot therefore be entirely derived from this norm.... It is precisely the exception that makes relevant the subject of sovereignty, that is, the whole question of sovereignty. The precise details of an emergency cannot be anticipated, nor can one spell out what may take place in such a case, especially when it is truly a matter of extreme emergency and how it is to be eliminated. The precondition as well as the content of jurisdictional competence in such a case must necessarily be unlimited.... The most guidance the constitution can provide is to indicate who can act in such a case" (pp. 5-7).

Given the debates surrounding the validity of the Weimar Constitution and the status of the Reichspräsident's power to issue emergency decrees, the direction of Schmitt's argument, which both describes and contributes to a political crisis par excellence, is obvious: the auhority of the state, crystallized in the person of the (Reichs-)president, can only be derived from the latter's ability to decide first what constitutes a state of emergency and, at the same time, how to address this emergency. The double meaning of Schmitt's German phrase ("Souverän ist, wer über den Ausnahmezustand entscheidet") is a vexing problem for any translation into English or French, which Strong makes clear in an admirably insightful discussion (pp. xi-xiv).[14] At the same time, and following an observation made by Schmitt's French translator Jean-Louis Schlegel, Strong rightly notes that Schmitt's definition of what actually constitutes an Ausnahmezustand is notoriously vague (p. xiii).[15] In fact, Schmitt himself often equates a number of terms--Ausnahmenzustand, Ausnahmefall, Notstand, Notfall, and so on--without paying much attention to the fact that their meaning in state law theory is slightly different in each case (p. xiii).[16] But while Strong merely asserts the ambiguity of Schmitt's expression, it would be wothwhile to ask whether Schmitt (who must have been aware of these historically and theoretically different meanings) opts for a rhetorical strategy that ultimately makes political order as a whole dependent on something that lies outside this order--even though Schmitt superficially suggests that "[f]or a legal order to make sense, a normal situation must exist" (p. 13). By programmatically emphasizing that the "exception in jurisprudence is analogous to the miracle in theology," and by rejecting Kelsen's theory of a basic norm as inviting political relativism, Schmitt renders it obvious that he has little interest in the normal situation (pp. 36; 18-23; 41-42).

Leaving aside the historical and philosophical details of Schmitt's account of the structural analogy between theology and law, it is noteworthy that one of the examples for the way in which this structural analogy has survived in modernity is the United States. Even though Schmitt, quite in contrast to Weber, repeatedly attacks the "economic-technical thinking" that marks the world of "American financiers" and "industrial technicians" as an "onslaught against the political," he nevertheless points to the continued presence of a quasi-theological foundation for American democracy, which in contrast to European liberalism supposedly highlights the deficiencies of secularization (p. 65):[17] "It is true, nevertheless, that for some time the aftereffects of the idea of God remained recognizable. In America this manifested itself in the reasonable and pragmatic belief that the voice of the people is the voice of God"(p. 49). The idea of God allows for a broad resistance against the secularization of the political, Schmitt claims, since the latter remains "the cause and end of all things, as the point from which everything emanates and to which everything returns."[18] Schmitt's counter-revolutionary Catholicism, which becomes particularly manifest in the fourth and final chapter of Political Theology, is structurally analogous to his idea of an executive power in

the state that derives its authority not from constitutional provisions and that, therefore, can safely disregard such provisions.

Indeed, Schmitt's vision of the Reichspräsident as safeguarding the constitution through extra-constitutional authority ties in almost perfectly with current proposals by some public lawyers, at least in the United States, for what is often termed a "unitary executive." Strong makes this connection clear in his foreword, thus underlining the continued relevance of Schmitt's thought as a warning against hollowing out constitutional provisions: "One can only note in this day and age ... that the United States today has on its books a sufficient number of emergency powers, established sine die, to allow the executive free hand at the rule of all aspects of this country. The present US administration has ruled that certain prisoners in the 'war against terrorism' have in effect no status at all, not even that of a person charged with a crime" (p. xxxiii).

In April 2005 it was, of course, far from obvious that the U.S. Supreme Court would successfully intervene in the interpretation of such emergency powers with regard to so-called enemy combatants by ruling that "the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction," that is, the United States.[19] It is, as Schmitt himself noted, "the impact of political events" that changes our understanding of public law. But constitutional norms can also resist such changes--although it remains to be seen whether the U.S. Supreme Court's decision in Hamdan v. Rumsfeld will have any consequences.

Against this background, the new edition of Schmitt's Political Theology is timely in an uncanny way. Most important of all, though, scholars of law and political theory and historians of the Weimar Republic once again have easy access to one of Schmitt's most important texts, which was out of print for a number of years and could only be purchased second-hand for a rather handsome amount. Better still, Strong's new foreword provides much-needed clarification of some of the most tricky issues in Schmitt's text.

Notes over Chapter 1 of “Political Theology”Posted on January 24, 2011 by hufarrel | Leave a comment

Brief notes on Chapter 1 of Schmitt’s “Political Theology.”

P. 2  Article 48 of the Weimar Constitution allowed the President ofthe Republic legislative powers under emergency conditions.  It wasthe legal framework under which von Hindenburg turned over power toHitler in 1933.

P. 9.  Jean Bodin “The Republic”“The sovereign Prince is only accountable to God.”

The liberal state, on the other hand,  invokes popular constitutionand a separation of powers to conceal the “question of sovereignty.”(p. 11)

P. 12,  “The existence of the state is undoubted proof of itssuperiority of over the validity of the legal norm. The decision freesitself from all normative ties and becomes in the true sense absolute.The state suspends the law in the exception on the basis of its rightof self-preservation, as one would say. “

P. 13, “The exception is that which cannot be subsumed; it defiesgeneral codification, but it simultaneously reveals a specificallyjuridical formal element: the decision in absolute purity.”

Generally, Schmitt emphasizes the importance of the very principle ofexception.  The quote from Kierkegaard that ends the first chapterseems to serve this purpose.  There is a fundamental division betweenthose who privilege the norm or the exception.  Schmittprioritizes theoretically the exceptions that push to “the outermost sphere.”

The exception is that element which undermines the rationalist claimsof the liberal constitutional state.  State-builders in this veinwrite various provisions into the constitution attempting to foreseecrisis and simultaneously enable and prescribe the mode of exception,but the emergency situation cannot be foreseen and exceeds allrational prediction (P. 6-7).

P. 13, Schmitt later focuses on decisionism as a school of juridicalthought. To quote him later, in an extreme definition of decisionism:“Der Führer has made the law, der Führer protects the law”.The passage here at the bottom P. 13 seems to summarize and introducethe principle.

Despite their extreme political disparities, Schmitt and Walter Benjamin corresponded with and respected each other.  Here is Benjamin on the state of exception, written shortly before his death in occupied France in 1940:

“The tradition of the oppressed teaches us that the “state ofexception” in which we live is the rule. We must arrive at a conceptof history which corresponds to this. Then it will become clear thatthe task before us is the introduction of a real state of exception;and our position in the struggle against Fascism will thereby improve.”Walter Benjamin, On the Concept of History

Notes on Carl Schmitt’s Political Theology, Ch. 2 and 3Posted on January 24, 2011 by ltaylor | Leave a comment

Political Theology (1922), Carl Schmitt

From the Stanford Encyclopedia of Philosophy:

“Carl Schmitt (1888–1985) was a conservative German legal, constitutional, and political theorist. Schmitt is often considered to be one of the most important critics of liberalism, parliamentary democracy, and liberal cosmopolitanism. But the value and significance of Schmitt’s work is subject to controversy, mainly due to his intellectual support for and active involvement with National Socialism.”

Ch. 2 Problem of Sovereignty as the Problem of the Legal Form of the Decision

In this chapter, Schmitt continues to explore the meaning of sovereignty and its relationship to the state and to law. He summarizes and deconstructs the several liberal theories of sovereignty, and concludes with an embrace of Hobbes and a “decisionist” model of law and the state.

He responds to several different political philosophers, contemporaries of his, including Kelson, Hugo Krabbe, Otto von Gierke, and Kurt Wolzendorff. In general, the first two emphasize the rule of law as the defining feature of the state. Von Gierke goes a different direction, stating that the state expresses the will of the people. Schmitt points out a variety of problems in his contemporaries’ theories, from a false sense of unity in Kelson to a risk of authoritarianism in Wolzendorff.  He ends with a critique of objectivity as a characteristic of the state and law:

“The multifarious theories of the concept of sovereignty – those of Krabbe, Preuss, Keslen – demand such an objectivity.  They agree that all personal elements must be eliminated from the concept of the state. For them, the personal and the command elements belong together.” (29)

“All these objections fail to recognize that the conception of personality and its connection with formal authority arose from a specific juristic interest, namely, an especially clear

awareness of what the essence of the legal decision entails.” (30) Schmitt then points out that the aforementioned theorists do not address who has the authority to execute the law.

He finishes the chapter by coining a new term, decisionist, to refer to Hobbes: “The form that he sought lies in the concrete decision, one that emanates from a particular authority.  In the independent meaning of the decision, the subject of the decision has an independent meaning, apart from the question of content.  What matters for the reality of legal life is who decides.”

Chapter 3 – Political Theology

Schmitt starts this chapter by explaining that the modern theory of the state is continuous with and has replaced theology: “The omnipotent God became the omnipotent lawgiver.”(36) With this shift, he also makes the analogy between the miracle in theology and the state of exception.

He goes on to explain how Enlightenment rationality “rejected the exception in every form.”(37) He later explains, “the sovereign, who in the deistic view of the world, even if conceived as residing outside the world, had remained the engineer of the great machine, has been radically pushed aside.  The machine now runs by itself.” (48)

Despite the rejection of the state of exception, the state is omnipresent:

“… whoever takes the trouble of examining the public law literature of positive jurisprudence of its basic concepts and arguments will see that the state intervenes everywhere.  At times it does so as a deux ex machina, to decide according to positive statute a controversy that the independent act of juristic perception failed to bring to a generally plausible solution; at other times it does so as the graceful and merciful lord who proves by pardons and amnesties his supremacy over his own laws.  There always exists the same inexplicable identity: lawgiver, executive power, police, pardoner, welfare institution.” (38)

“If viewed from this perspective of the history of ideas, the development of the nineteenth century theory of the state displays two characteristic moments: the elimination of all theistic and transcendental conceptions and the formulation of a new concept of legitimacy. The traditional principle of legitimacy obviously lost all validity… Since 1848 the theory of public law has become ‘positive,’ and behind this word is usually hidden its dilemma; or the theory has propounded in different paraphrases the idea that all power resides in the pouvoir constituant [constituent power] of the people, which means that the democratic notion of legitimacy has replaced the monarchical.” (51)

Schmitt concludes with a return to Hobbes and Cortes, pointing out that for Cortes, “there was thus only one solution: dictatorship.” And, finally, Schmitt repeats the Latin quote from Hobbes, “Autoritas, non veritas facit legem,” or Authority, not virtue makes the law.

Schmitt defines the essence of sovereignty as the decision over what is an exception and decide the measures taken to eliminate such an exception. The state of exception is both the monopolistic domain of the sovereign and reveals the sovereign itself. But sovereignty, too, then, is also he who defines what’s “the normal.” As Schmitt writes, “for a legal system to make sense, a normal situation must exist, and he is sovereign who definitely decides whether this normal situation actually exists” (13). The preservation of the normal is precisely the rationale for which the exception is instituted. As such, sovereignty is an inherent theory of the state: “The state suspends the law in the exception on the basis of its right of self-preservation, as one would say” (12). Our coupling of law and order (“Law and Order” soundtrack: bom pom pom pom puuuum) are completely unbundled by Schmitt (12).

Decision is the key conceptual/practical hinge for his political theory. Since “the political” for Schmitt is exercised on the basis of a friend/enemy distinction (both between and within states), sovereign power has to be monopolized by a single actor that is simultaneously “outside” the legal system, but still part of it (7). The Forward cites Schmitt other book on political theology: “today one can no longer define politics in terms of the State,” as I would argue Weber did, “on the contrary what we can still call the State today must inversely be defined and understood from the political” (xv). Otherwise, the friend/enemy “political” is mired as a Hobbesian war of all against all. “But sovereignty (and thus the state itself) resides in deciding this controversy, tat is, in determining definitively what constitutes public order and security, in determining when they are disturbed, and so on” (9). The exception is almost an escape hatch to reset the conditions in which the political can proceed without putting the state itself under threat.

In distinction from the liberal view, Schmitt explicitly argues against the state’s role being the eliminator of conflict and the political, but rather the means through which order and security are not the cost of these antagonistic relations. He writes: “Today nothing is more modern than the onslaught against the political,” finding socialists, anarchists, and liberals all guilty on this point. Sarcastically parroting them, he continues, “There must no longer be political problems, only organizational-technical and economic-sociological ones” (65). Another reason Schmitt argues against the liberal view is that he says liberal normativism (namely constitutions) cannot foresee the contingent events that necessitate the suspension of the law in the interest of preserving the state itself. The most a constitution can provide is a delineation of who decides (7).

However, an important point to note is that Schmitt claims at the end of the book that the exception is not dictatorial because it still has some legitimate basis. He gives legitimacy a democratic spin (51). He credits Donoso Cortés with basically saying that people are so vile that they cannot be expected, much less collectively as in the liberal frame, to be afforded such democratic privileges. Bourgeois liberalism, Donoso Cortés said, was simply a bunch of people talking their ears off, never coming to the critical moment of decision. Schmitt cuts the book off at a point in which he would logically provide an alternative, but doesn’t.

And it is the legitimacy question that seems to be what his later book the Nomos of the Earth is trying to answer: What makes a sovereign legitimate? He answers the question by pointing to the bracketing of war by states and the related centrality of land-appropriation in creating a secure spatial order, a nomos. A stable (though not conflict-less) nomos is seen by Schmitt as both an internal (to Europe, to states) and an external order (between states and continents). Quoting from Schmitt’s Concept of the Political, the translator notes, “Every norm presupposes a normal situation, and no norm can be valid in an entirely abnormal situation.

As long as a state is a political entity, this requirement for internal peace compels it in critical situations to decide also upon the domestic enemy (p. 46).”

Schmitt credits the emergence of statehood as what accomplished the singular achievements of both the securalization of theological concepts into political ones (Political Theology) as well as the bracketing of war (Nomos of the Earth) and the distinction between (just) enemies and criminals or rebellion. Without the constitution of just enemies, war would remain a military relation of annihilation.

The full title of Schmitt’s crucial work – Politische Theologie. Vier Kapitel zur Lehre von der Souveränität – puts forward a thesis on the relation between the concept of sovereignty and political theology, which was also clearly emphasized in his earlier essays. Analogies between theology and jurisprudence are already present in the short essay on the relation between state, law and individual ( Der Wert des Staates und die Bedeutung des Einzelnen ), written in 1914. Three first parts of Politische Theologie were published in a Festschrift for Max Weber under the title Soziologie des Souveränitätsbegriffes und politische Theologie (Schmitt, “Soziologie des Souveränitätsbegriffes“). The core of Schmitt’s program was sketched in the third part of the essay. Interestingly the very phrase “political theology” occurs rarely and never describes his own theory, but the theories of the so-called “doctors of counterrevolution” from the period of the Restoration, i.e. Ambroise de Bonald, Joseph de Maistre and J uan Donoso Cortés, and the changes in jurisprudence which resulted in the normativism of Hans Kelsen.

The core part can be summarized as a set of the following hypotheses:

1. “All significant concepts of the modern theory of the state are secularized theological concepts” (Political Theology 36).

2. In order to understand the changes in politics and law we need a new, sociological approach (sociology of concepts = political theology).

3. The social structure of society is analogous to its metaphysical vision of the world (Political Theology 42-43, 45).

As Schmitt states, “all significant concepts of the modern theory of the state are secularized theological concepts”. This analogy has a sinchronic and diachronic character – on the one hand, it means the historical evolution of concepts (history of concepts); on the other, the similarity of the structure of concepts in both fields (Mehring 146). An example of this kind of analogy is the “exception”, which was transferred to law from 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 last centuries”, especially the concept of sovereignty (Schmitt, Political Theology 36).

Schmitt begins the description of his approach with two critital steps, rejecting earlier attempts. This polemical attitude is very characteristic to Schmitt’s way of thinking and writing, when his views often are expressed in confrontation with another standpoint. The polemical character of the concept is of interest also for the sociology of concepts, as “all political concepts, ideas and descriptions have a polemical meaning. They concern the concrete situation of conflict”. Schmitt begins then with decribing what sociology of concepts is different from.

Firstly, it differs from materialism and spiritualism, both of which make the same mistake of assuming that two spheres, the spiritual and the material, in the end reduce to one another. In Schmitt’s view it would be equally impossible to reduce all phenomena to the material, what is done by Marxists, or to the spiritual, what was tried by German idealism.

Secondly, Schmitt’s sociology of concepts is not like Max Weber’s theory presented in Rechtssoziologie. Weber’s sociology aims at indicating “the typical group of people who arrive at certain ideological results from the peculiarity of their sociological situations” (Political Theology 44). Schmitt thinks of this as psychology. While ascribing a concept to a specific social group is a sociological problem, “this is still not a sociology of a legal

concept” (44) because it is based on human motivations rather than on the concepts themselves.

The third step is positive. The aim of sociology of concepts is to find the basic radically systematic structure of legal concepts, which could be compared to the social structure of an epoch and its conceptual changes (45). Although Schmitt spent almost the whole of his life fighting against the conception of law represented primarily by Hans Kelsen, he also appreciated his observations showing the “methodological affinity” between theology and jurisprudence (Schmitt, Political Theology 40, Kelsen 208). Schmitt seems to leave aside the question of whether concepts are the reflection of reality or reality is created by concepts. He states “only” that both spheres are analogous or – strictly speaking – that “the metaphysical image that a definite epoch forges of the world has the same structure as what the world immediately understands to be appropriate as a form of its political organization” (Schmitt, Political Theology 46). A sociological approach to the concept is to define this identity.

For example, a good sociology of concepts would never state that “the monarchy of the seventeenth century is characterized as the real that is ‘mirrored’ in the Carthesian concept of God” (45), but that “the historico-political status of the monarchy correspond[s] to the general state of consciousness that was characteristic of western Europeans at that time” (45) . In the first case the direction of the relation is clearly indicated, whereas in the second it is not. The practical dimension of Schmitt’s approach is to “compare the lexicons and always ask: what does this term mean in this moment, where and for whom?” (Koselleck 187).

In Politische Theologie Schmitt sketches the main transformations in understanding God, state and law since the 17 th century, which were reflected in changes within the system of concepts. In the theory of state of 17 th century sovereigns, “the state has a position exactly analogous to that attributed to God in the Cartesian system of the world” (Political Theology 46). This idea was modified when the place of a theistic approach was taken over by the deistic, which resulted in the image of ruler who sets the machine of laws and then does not interfere. Even during the Enlightenment, the vision of a sovereign dominated, although it gradually had been losing its influence. While for Hobbes the personal and decisionistic aspect of the sovereign was crucial (Leviathan), for Rousseau only the people could be sovereign. This meant the destruction of the theological justification of political power, as power was thought to come from below and not from above (i.e. from God). Since the 19 th century, we have been witnessing, as Schmitt says, the process of immanentisation, which comes out in two characteristic elements: the removal of all theist and transcendent ideas from politics and the introduction of a new understanding of legitimacy. When all transcendent references are excluded, then legitimacy based on the will of God, where God is the ultimate source of political power, has to be modified and transformed into an immanent version.

Those general remarks were applied to the analysis of the changes in the concept of “dictatorship”, which Schmitt had realized in a book-length work, Dicatatorship. In this book, he examined dictatorship from antiquity until the turn of 18 th and 19 th centuries, with special attention to the period between the 14th and the 19th century. The history of dictatorship began in ancient Rome when, during times of danger and riots that could threaten the state, the Senatus Romanus appointed a dictator, who was an institution within the republican system designed for its defence. He was appointed for a defined period of time (up to six months), but usually the person resigned earlier, in order to remove the threat. His position was based on the existing law; he could neither revoke the laws, nor enact his own. It

was therefore clearly an instrument designed to protect the political order of the Roman republic. This understanding, which prevailed until the Renaissance, was not applied to the political orders of early modern states, but existed within the history of ancient civilizations. Scholars and glossators saw dictatorship rather as a historical institution than a problem in the field of law. Nonetheless, Machiavelli observed the crucial aspect of dictatorship in his commentary on the History of Rome by Titus Livius, although he still declared dictatorship an institution typical of the Roman republic.

Schmitt’s suggestion that dictatorship is strongly connected with the concept of sovereignty had been taken from Bodin’s description of the duties and nature of the office of “commissar”. Schmitt takes over this observation, but goes further. The first commissars were sent in the 13 th century by the pope. All acts of the commissars were regarded as acts of the pope himself and were based on a special task (commisio), unlike the acts of ordinary church officials, which were based on law (lex). During the 14 th century the idea of “commissar” was taken over by the late medieaval states, and already from the 15 th century on, dictatorship was understood as a kind of commisio given by the ruler or king. In those cases commisio was about the highest war command during campaigns (e.g. Wallenstein, who fought for the German emperor during Thirty Years’ War) . It was commonly accepted that God is the source of all power, constantly intervening in the world, so the king in the state had the same position and his commissars were only the instruments of intervention.

With the coming of the Enlightenment, the vision of God has been steadily changing towards the deistic view (Descartes, Malebranche): God created the world, set its laws, and since then the world has been functioning independently as a great and complicated machine. With this rationalism in the metaphysics, the vision of the state and dictatorship also changed. As a consequence, the idea of despotisme rational came into existence. If the enlighted knew the truth, they should bring real (!) freedom to those who would never achieve it by themselves, with the help of violence when needed. In this regard the division between the legislative and executive (the balance of powers) made no sense, since it put an obstacle before reasonable actions. At the turn of the 17 th and 18 th centuries in France the classical understanding of dictatorship had moved from the commissar type to the sovereign type. According to Mably, a commissar is not bound by the laws, and during his activity “laws are silent”. Rousseau claimed that volonté générale (general will) had a moral, not a real nature and that the people are the real sovereign. It can of course happen that the will of most of them is not in conformity with the “general will”. During the French Revolution, the difference between the commissar dictatorship, which was based on the existing laws and constitution, and the sovereign dictatorship became clearly visible. Sovereign dictatorship denies the value of the existing political and social order and aims atintroducing the new, true and right one, which would make possible the existence of a real constitution. The real constitution exists therefore only in the future, but at the same time is the basis for the actions of a dictator. The shift from this kind of dictatorship to a dictatorship of the proletariat postulated by Marxist theory was possible because of Rousseau, who in the place of one dictator put the people as a whole. The people are the real sovereign, who can always in every given moment change the political order; they are pouvoir constituant, not pouvoir constitué (this idea is cleary the secular copy of natura naturans and natura naturata). The image of God from the 19 th century was – in contrast to the earlier, rational version – more “objectively unexplained” and the same fell to pouvoir constituant of the people. Although during the French Revolution the word “dictatorship” was not used (since it belonged to the old terminology), the National Assembly is a typical example of sovereign dictatorship, seeing its task in introducing a new political order.

In the end, the growing influence of the liberal view of the state led to the restriction of dictatorship by means of a law describing both the conditions of a state of exception (which replaced the concept of dictatorship) and all means that might be used when it is proclaimed. This vision is far from the earlier version that assumed the impossibility of specific regulations because it is impossible to predict all the situations that could pose a threat to the state and political order.

This short description of Schmitt’s line of thought gives us the opportunity to see the core idea of the sociology of concepts. He traces the changes in meanings of words and puts them in the context of shifts in the metaphysical view of the world. This approach inspired Reinhart Koselleck, now considered the most important representative of Begriffsgeschichte (differences between Begriffsgeschichte and Ideengeschichte are extremely interesting on the methodological level, but will not be discussed here).