Schmitts Argument for the Sovereign Exception - Essay Example

Running header: Legal Theory Major Essay Question Student’s name: Name of institution: Instructor’s name: Course code: Date of submission: Critically discuss Schmitt’s argument for the sovereign exception, paying particular attention to his use of the distinction between norm and decision. Introduction Carl Schmitt was a renowned conservative German jurist, legal, political theorist, constitutionalist, philosopher and professor of law who lived between 1888 and 1985. He published numerous essays that have been very influential. Most of his essays were on mentalities and ideas surrounding the wielding of power, especially political power. Much of his works have always been influential and controversial and continue to be so today, mainly because of the intellectual support he has for active involvement in National Socialism. Schmitt wrote one of his most influential works that presented his sovereignty theory, which appeared in 19221. His previous works such as the crisis of parliamentary democracy in 1923 and the concept of the political in 1928 were also very influential yet very controversial. In the former, Schmitt attacked the legitimacy of parliamentary governments and in the former, he defended the view that all true politics was based on clear distinctions between friends and enemies. This paper will critically discuss Schmitt’s argument for the sovereign exception, paying particular attention to his use of the distinction between norm and decision2. According to Carl Schmitt, sovereign is a person who decides on the exception. Schmitt noted that modern liberal constitutions would hardly acknowledge the bearer of sovereign authority in a jurisdiction. He further argues that attempts to disregard and get rid of sovereignty can never bare fruits. His arguments later supported by other scholars such as Giorgio Agamben and Hans Kelsen who are of the opinion that it is futile to try and stifle sovereignty3. In the view of Schmitt, without a sovereign authority, there can never be a functioning legal order. This is also supported by Stephen Holmes. Liberal constitutionalists have typically held that all the legitimate acts of a state must make use of general legal norms so that the people are subject to only the predictable and determinate demands of the law, and not to the arbitrary authority of individual persons. Schmitt however argues that these general legal norms fail on many occasions to provide determinate guidance without interstitial legislation and considerable interpretation. There needs to be a sovereign authority that applies general legal rules to all the concrete cases so that the law can be effective. The sovereign authority will also be responsible for dealing with all problems of under-determination or contested interpretation. However, the contents of law do not determine the people to interpret the law and apply it. A sovereign authority is therefore necessary in the law so as to decide on how general legal norms may be applied to particular cases4. This argument propagated by Schmitt seems to assume that all legal norms are the material norms that provide substantive evidence for legal decisions but in modern legal systems, there are additional norms of competence to the material norms. Schmitt suggests that all political authority that is legitimate depends on authorization that is legal. It is the law that determines which institution or person has the legal competence to apply and interpret the law. This leaves subjects of the law in a situation whereby they may be forced to accept the decisions of the law as legally binding and final even if they do not deem them to be correct. Schmitt supports the Hobbes dictum that it is authority that indeed makes the law, not the truth. A legal system simply uses its norms of competence to provide for the authoritative interpretation of the law. A modern legal system therefore hardly requires that the state must contain a sovereign authority. According to Schmitt, the applicability of legal norms presupposes social normality. That is why legal norms can never be applied to chaos. Legal norms must operate within a homogenous medium. Schmitt argues that no legal norm can govern extreme cases of emergency or absolute states of exception. Application of the law in abnormal situations through normal judiciary and administrative channels can lead unpredictable and haphazard results. This can prevent effective action directed towards bringing the end of the emergency5. When applying material legal norms lead to a condition of normality, Schmitt proposes that a polity is entitled to decide whether or not to suspend how the law is applied on situations that are considered abnormal. This is how Schmitt came up with his famous definition of sovereignty which states that sovereignty is ‘he who decides on the state of exception’6. In any given polity, people or institutions may be capable of suspending the law and using extra-legal force to normalize situations. In such a case, the person or institution is considered the sovereign authority in that polity. That is why Schmitt concludes that any legal order is not based on legal norms but on sovereign decisions. Carl Schmitt notes that sovereignty does not entail the ability to impose norms. It lies in the potential to make decisions freely from any form of normative obligation. A true sovereign is one who has the ability to decide that a given situation is very extraordinary. Schmitt further notes that a true sovereign state does not locate its sovereignty in the monopoly to dominate violence but in the monopoly to make decisions. Schmitt also says that the decision taken by a state to declare a state of emergency always occurs within a legal framework. Such a state of emergency is not considered to be one of chaos. Many states claim to abolish the law with the overall aim of safeguarding it. This therefore leads to the conclusion that the decision to declare a state of emergency is one in which is concerned with the circumstances that the norm can be applied. Normal situations first need to be postulated before a sovereign authority can decide whether the situation is normal or not. Emergency regulations are usually embedded within juridical orders. However, such an order is devoid of the concrete fundamental rights7. Schmitt’s arguments for sovereign exceptions are continuously becoming more and more relevant in the current context of the ongoing fights against terrorism worldwide8. His dispositions are also known to generate new juridical orders which have very extraordinary procedures and exception is the order of the order of the day. The fight against terrorism is known to lead to new juridical orders and to a suspension of rights of people. The fight against terrorism also produces new enemies in a material and formal sense. Such a juridical order aims at combating something that is very inherent to it. Giorgio Agamben was able to distinguish between a state of emergency and dictatorship9. Carl Schmitt acknowledges that all law is situational law. A situation is produced and guaranteed in totality by a sovereign. The sovereign usually has the monopoly on making the last decision. In this fact resides the sovereignty of a state which needs to be defined correctly and juristically. The sovereign according to Schmitt should consist of the monopoly to decide and not the monopoly to rulem or coerce. The essence of a state’s authority is most clearly revealed by the exception. Carl Schmitt notes that a state can choose to suspend the law in the interest of self preservation. In his book, Political Theology, Schmitt bases this argument on the fact that there is a distinction between decision and norm10. He describes these as two different legal elements and further argues that the decision taken to suspend the law can never be regulated by a legal norm. This can therefore be taken to mean that suspending legal rights can be taken to be part of the law. This leads Schmitt to argue that any attempt to legalize an exceptional situation is doomed to fail. It is not possible to know the future of any emergency or to know in advance what might be done to deal with such emergencies in future11. Because of the above reason, the positive law has been said to have the ability to best choose who has the power to decide whether there is an emergency that requires the law to be suspended or not. However, an existing material law cannot guide a sovereign decision. Schmitt is of the view that it is not really necessary for the law to make the decision on who can take decisions on the exception. A sovereign authority can exist even when it is not recognized by the constitutional law. This sovereign authority can exist in a jurisprudentially relevant sense. What is important is whether or not there exists an institution or a person who has the ability to take decision on the exception. If at all a sovereign exists, the authority of that sovereign to suspend the law should never stand in the way of positive legal recognition12. This is because the applicability of the law is dependent on a situation of normality that is provided by the sovereign. In a case where the decision of the sovereign on the exception is not constrained by material legal factors, the power to make the decision on a state of exception is similar to the power of deciding what should be taken as a state of exception. When a sovereign makes a decision on such an issue, it is expected that the decision will respond to the attitudes of the society. If this was not the case, a sovereign could not have the right to suspend the law or to take any successful action against the possible emergency. In any society that is torn by social or ideological conflict of serious magnitude, the need for sovereign authority is usually the greatest. On the other hand, the sovereign authority in a state will have to make a decision which sides with the conception of normality taken by one group if there is no unanimity among the social groups as to what situation is considered normal or exceptional13. When the sovereign creates a condition of normality, this constitutes the political identity of a community. The sovereign is likely to do so by forcibly suppressing those who have a different conception of normality from the sovereign. The analysis of Carl Schmitt of the state of exception in his book Political Theology is taken as a very important step in overcoming all the hurdles that identify the theories of exception14. According to the analysis by Schmitt, sovereignty and supreme judicial powers come from the powers that are meant to set aside the normal rule of the law and declare that a circumstance is exceptional. Schmitt perceives the state of exception as a suspension of the juridical order. The state of exception is an indication of the sovereign’s authority. This authority grounds the political order and also destabilizes the political order. It does this by locating the authority when suspending the law. He further asserts that the norm is usually destroyed by the exception. The decision taken on the exception is known to eliminate the law that it seeks the exception from. Schmitt argues for the decision of the norm by drawing to the metaphysics that is brought about by the exception. Schmitt reaches this conclusion by referring to the exception as a specific situation that questions an existing order. This forces the exception to reaffirm itself. In a democratic polity, the popular sovereign is the only candidate for sovereignty. Dictatorial power is usually formally delegated and has limited amount of time to be in power15. This is in regard to defending a republican constitution that already exists by using extra legal force. In the modern history of constitutions, dictatorship as an institution is said to have combined with sovereignty and this led to the fusion of sovereignty to democracy. The use of dictatorship can be said to be the first step towards this fusion. At such a time, the absolute sovereign did not have the power to make decisions on the exception. The sovereign could therefore give authority to the use of dictatorial methods. Even though the absolute sovereign had the authority to decide on the exception, he was not considered a dictator. This was because the sovereign did not make decisions under the authority of someone else and also because he was required to depend on legal governance to make decisions during his operations. Schmitt views sovereign dictatorship as a new democratic institution. Such dictatorship can only exist where it is allowed to make sovereign decisions on the exception on behalf of the people. Schmitt and other later philosophers such as Agamben, Holmes and Bodin all seem to agree that sovereignty is very compatible to democracy and also very significant to it16. This is so because sovereignty is exercised wherever and whenever there is a democratic constitution that is founded. No democratic constitution is said to have the ability to give any person the permanent sovereign authority. This however does not mean that the sovereign cannot make decision on the exception. It simply means that any decision on the exception in any democratic state must take into consideration the constituent powers of the people of that particular state. In every conceivable case, legal rules have been seen to have the ability to lead to determinate and predictable decisions. According to the liberals, all legal decisions taken are very easy cases. Every single act of judicial subsumption is also seen to have the ability to lead to the right and unambiguous answer17. Schmitt openly criticizes the free law movement by highlighting its inability to decide when a decision is a correct one or not. The free law movement is known for its support of judicial discretion. According to Schmitt, the legal decision making is tends to be characterized by moments of indifference in regard to the contents of the law. In conclusion, a sovereign dictator is said to posses the power to make decisions on the exception by setting aside positive constitutional and legal order. A sovereign dictator can therefore not base his actions in the name of the people under his authority. In regard to the distinction between a norm and a decision, a legal norm has no ability to bind the act by which the norm is applied. Room for discretion must always be created so that legal norms can only take the character that is supposed to be filled by this particular act. While interpreting a norm or a statute, one can arrive to several decisions that are very distinct. The interpretation can hardly lead to a variety of decisions. Judicial decision making processes would posses some significant amount of value if laws were perfectly transparent and clear. Schmitt’s legal decision making theory is based on the assumption that traditional law which used to be valid has already been totally discredited18. He also believes that judgment and the law should not be concerned with the reconstruction of liberal concepts of judicial decision making. The legal decision making reflections that have been made by Schmitt have often been ignored by the continuous renaissance against the philosopher. This is especially true in English speaking countries. Despite this ignorance, the analyses made by Carl Schmitt on this issue of legal indeterminacy have been very important in understanding sovereignty and distinguishing between norm and decision. References Agamben, G, Homo sacer: sovereign power and bare life (Stanford University Press, 1998). Hayter, T, Open borders: the case against immigration controls (Pluto, 2000). Hoelzl, M & Ward, G, Editors' introduction to Political Theology II (London, 2008). Hyndman, J, Managing displacement: refugees and the politics of humanitarianism (University of Minnesota Press, 2000). Neil, L, ‘Carl Schmitt and the question of the aesthetic’ (2000) 34(2) New German Critique Summer 43. Nyers, P, ‘Abject cosmopolitanism: the politics of protection in the anti-deportation movement’ (2003) 24(6) Third World Quarterly 1093. Ranciere, J, Disagreement: politics and philosophy (University of Minnesota Press, 1999). Schmitt, C, The concept of the political (University of Chicago Press, 1996). Schmitt, C, Theory of the partisan: intermediate commentary on the concept of the political (1963) (University of Chicago Press, 2004). Terry, F, Condemned to repeat?: the paradox of humanitarian action (Cornell University Press, 2002). Read More