Constitutional Theory [Carl Schmitt, Jeffrey Seitzer] on Carl Schmitt's magnum opus, Constitutional Theory, was originally published in and has been in Get your site here, or download a FREE site Reading App. Download with Facebook or download with email Political theory/Legal studies Carl Schmitt's magnum opus, Constitutional Theory, was originally published. Carl Schmitt's magnum opus, Constitutional Theory, was originally published in and has been in print in German ever since. This volume makes Schmitt's.

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This book analyzes Carl Schmitt's state and constitutional theory and shows how he conceived it in response to the Weimar crisis. Schmitt modeled his theory on. Magnus Homo: Carl Schmitt's State and Constitutional Theory. The Absolute Constitution of 20th Century Liberal Democracy: Carl Schmitt and Militant. Author of Dictatorship, Constitutional Theory, Theory of the Partisan, by Carl Schmitt 2 editions - first published in Download DAISY.

The Spanish Constitution: the Spanish Nation and the Autonomous Communities To understand what is at stake for both the secessionists and the central Spanish government in the current Catalonian constitutional crisis it is important to understand its historical background.

From a mere geographical standpoint, one would assume that because Spain shares the Iberian Peninsula only with Portugal this would be one of the first areas in Europe where a unified state would emerge. This was not the case. Only at the start of the 18th century, with the ascension of the Bourbons to the Spanish throne, endeavours were undertaken to centralise the country.

Spain was centralised after the French model of centralisation. The current Spanish Constitution, on the contrary, revived the old decentralised tradition.

The status of Autonomous Community can be obtained in either a slow or fast way. Because of the anti-decentralisation agenda of the military in the young post-Franco Kingdom of Spain, the 29 December Spanish Constitution, which reinforced decentralisation to suppress the sentiments of parts of the military, was on top of the political agenda. In the period between and , 13 statutes of autonomy were enacted.

The political balance of powers resembles the national, central government, for example; the members of parliaments of the Autonomous Communities elect one of their members as president of the council.

Despite the constitutional arrangements regarding the Autonomous Communities, the topic is still very sensitive. An important stage in the development of the Catalonian constitutional crisis was the verdict of the Spanish Constitutional Court in , which was a complaint brought before the Court by the Partido Popular, the political party of Prime Minister Rajoy. The complaint of the Partido Popular was directed against the Statute of Autonomy of Catalonia, which was passed by the national parliament and by referendum of the Catalonian people.

After a four-year-deliberation on 28 June , the Constitutional Court decided that 14 articles were unconstitutional and another 27 articles were curtailed.

One of the most salient parts of the judgement was that the Catalan language no longer had, as was put down in the Statute of Autonomy of Catalonia, preference over the Spanish language in Catalonia.

Three conceptions of legal unity can be discerned. In the first place, a division can be made between two types of legal unity claims. The first claim of legal unity is the distinction between form and content. The distinction between form and content of the law is at the core of the tradition of legal positivism. Legal unity in this sense can either be viewed as logical coherence or coherence of content.

Logical coherence was boiled down to the question addressed by Dick W. The process of law creation however, always produces unforeseeable conflicts between legal rules, and thus, these conflicts, and the rules to resolve conflicts, are inevitable. The typical set of these conflict rules consists of the rules of lex superior, lex specialis and lex posterior.

In this project, coherence is not assessed as a logical prerequisite of a legal order, rather, it addresses the relationship between law and morality. It has been aptly criticised by Joseph Raz. Legal unity as political unity fits the picture of the territorial demarcated, national state.

The German constitutional law theorist Georg Jellinek developed the classic conceptualisation of the state in his three elements doctrine Drei-Elemente-Lehre. Constitutions have played a key role in providing and expressing the political unity of the legal order.

Especially with the rise of written or formal constitutions at the end of the 18th century, constitutions contained provisions on jurisdiction and regulations of public institutions and the organisation and competences of the judiciary.

These provisions had the goal to create a clearly organised unity within the legal order by defining and regulating state competencies. Besides these organisational provisions, most written constitutions also provide a set of norms expressing political unity.


In the preambles of the American, French and German Constitutions, the will of the people, as the constitution-giving power, is directly expressed. Therefore, legal unity can also address the expression of the people — or a certain group — to be politically united, and can be discerned from a mere legal organisational unity. As will be made clear under parts II. B and II. Constitutional Revision As mentioned in the introduction, the goal of this article is to investigate constitutional change in light of legal unity and, the Catalonian constitutional crisis is taken as a case study of constitutional change in which legal unity is at stake.

The Catalonian constitutional crisis shows that the amendment procedure in Part X of the Spanish Constitution only partly answers the question of constitutional change. The Catalonian government wished to change the Spanish Constitution without using the procedure laid down in the written constitution of the Kingdom of Spain.

The Spanish Constitution, as such, did not have a provision allowing for the secession of certain territorial unities belonging to the Kingdom of Spain.

To achieve its wish, the Catalonian government needed to claim a constitutional amendment procedure, which was not laid down in the written constitution. Reijer Passchier distinguishes between formal and informal constitutional change. This was a one-sided claim by Catalonia to have authority over the decision of its independence, despite the fact as mentioned, that the Spanish Constitution does not contain a provision allowing secession. Such constitutional amendment procedures outside the written constitution can only be successful if they meet acceptance of other constitutional actors within the Spanish constitutional realm.

A distinction must be made between the rules of existing constitutional law, which contain foreseen ways of amending constitutions, and cases that go beyond the regulation of the existing constitutional law. The amendment procedure is a part of a specific constitution, for example Part X of the Spanish Constitution.

Many constitutions contain provisions that are excluded from amendment. Article of the Spanish Constitution refers to the normal competences of the initiation legislation. According to the first paragraph of article 87, the government, the Congress, or the Senate can initiate revision of the Constitution. The second paragraph states that the Parliaments of the Autonomous Communities can also initiate a constitutional referendum.

Popular initiatives, in the third paragraph of article 87, are excluded from initiating constitutional revision, and are therefore restricted to normal legislation.

The strengthened procedure is laid down in article of the Spanish Constitution. Partial revisions that do not affect these parts of the Constitution fall under the lighter revision procedure of article This light procedure was followed at the constitutional revisions in and in , 49 and demands that in both houses the amendment is approved by a three-fifths majority. After that, the Congress can, according to the second paragraph, pass the amendment by a two-thirds majority of its members.

Within 15 days, according to third paragraph, one tenth of the members of both houses can demand that the proposed amendment is submitted to a binding referendum. Partial revisions that fall under the scope of the Preliminary Title, Chapter Two, Section 1 of Title I, or Title II are subject of the strengthened procedure that requires in both houses a two-thirds majority of their members to agree with proposed amendment.

After passing the first round, the two houses are dissolved and the newly elected houses must vote on both the principle and the text of the proposed amendment by a two-thirds majority. After that, the amendment procedure is subject to a binding referendum. The Indeterminacy of Constitutional Law There are some significant parallels between the Catalonian constitutional crisis and the work of the German constitutional law theorist, Carl Schmitt.

Only in some cases a provision from a statute determines the outcome of the case the judgment. His proposed solution is to introduce, besides statutory law, other determinants for the outcome in legal cases. In Statute and Judgment this other determinant is the legal practice itself; the judge is making the right decision if another judge would make the same decision in a similar case.

In his later works the focus of the indeterminacy problem is shifted from the judge to the public officials, such as the imperial government or the imperial president, under the constitution of the Weimar Republic. The next section demonstrates that Schmitt is wrong on this point. Hart on the determinacy of law. In part III. A this side note is further developed. It was already clear in relation to his early work that Schmitt fundamentally opposes this position.

For him, the law — the set of legal norms — is to a very large extent underdetermined, almost completely indeterminate. It is an unregulated case. Especially on the side of the Catalan government, the unforeseeability of the constitutional situation has been stressed; the Spanish Constitution of does not provide the possibility of regulation of independence of the Autonomous Communities.

Carl Schmitt's State and Constitutional Theory: A Critical Analysis

The Catalan government, for their sake, framed — just as Schmitt describes in the quoted passage — the situation as unforeseen, and therefore unregulated. It is inconceivable that the law has a complete absence of norms and standards. In the Catalonian constitutional crisis this is demonstrated by the position of the central Spanish government.

In Constitutional Theory Schmitt adheres to the view, developed in his previous works, that only with the decision of a certain person or instance, the law is given. As mentioned above, case law does not have foreseeability or predictability; it always comes down to the decision of the judge. According to Schmitt, the real sovereign is not acting on itself, but the representatives of the political unity are in fact acting as a sovereign third.

As Schmitt points out in Constitutional Theory, a new epoch started with the American Declaration of Independence of and the French Revolution of According to Spanish constitutional law, the President is elected by the Parliament of Catalonia and appointed by the King of Spain according to the first paragraph of article of the Spanish Constitution.

In contrast to constitutional revision, if successful, this would lead to a constitutional revolution, setting aside the existing constitution and its revision procedure. The norm requires a homogeneous medium. There exists no norm that is applicable to chaos. The foundation of the order on ground of normality implies that there are certain informal, not legal, standards that provide guidance. According to Schmitt, there are no neutral, i. In aesthetics the distinctive criterion is between beautiful and ugly, in ethics between good and evil, and in politics it is the distinction between friend and enemy.

This explication can respectively be a certain aesthetical theory or an ethical theory. What constitutes the enemy? The only thing that is clear is that, because of the polarised definition, it must be the opposite of friend.

As mentioned, according to Schmitt, every conflict is potentially political. Unity, therefore, is the foundation of every order. Where is this polarisation between friends and enemies of the new constitution leading? Those not embracing the new constitution are enemies of that new constitution, consistent to the false dilemma expressed by George W. The false dilemma of the friend and enemy distinction is troublesome. The preamble elaborates on the content of, inter alia, liberty and security, well-being, fair social and economic order, rule of law, cultures and traditions, and the languages and institutions of the peoples of Spain.

There is a clear tension within the Spanish Constitution; the Spanish Constitution is given by one Spanish people, in which national sovereignty according to article 1, paragraph 2, of the Spanish Constitution, is vested, but at the same time there is a plurality of Spanish peoples, having their own languages and institutions.

The literal text of the constitution was used as a powerful performative by Rajoy. His constitutional theory has a clear normative goal. Defining politics as the decision between friend and enemy is not a descriptive definition, but a stipulation based on the rejection of liberalism. As argued above, this is understandable from the constitutional tradition, dominant in many European countries. In Spain, notably, Schmitt has been a well-known constitutional theorist.

It is time to come up with an alternative constitutional theory. A completely de-politicized world would offer human beings no higher purpose than to increase their consumption and to enjoy the frolics of modern entertainment. It would reduce politics to a value-neutral technique for the provision of material amenities.

As a result, there would no longer be any project or value that individuals are called upon to serve, whether they want to or not, and that can give their life a meaning that transcends the satisfaction of private desires CP 35, 57—8; RK 21—7; PR — But that a world in which one does not have the opportunity to transcend one's interest in individual contentment in the service of a higher value would be shallow and meaningless does not suffice to establish that a willingness to kill or to die for a political community will confer meaning on a life, much less that it is the only thing that can do so.

When Schmitt claims that the defence of the political is the only goal that could possibly justify the killing of others and the sacrifice of one's own life CP 35; 48—9 he assumes without argument that the life of political community, as he understands it, is uniquely and supremely valuable. Some interpreters have explained Schmitt's hostility towards liberal de-politicization as being grounded in the view that a willingness to distinguish between friend and enemy is a theological duty Mehring ; Meier ; Groh, Schmitt argues in Political Theology that all key concepts of the modern doctrine of the state are secularized theological concepts, which suggests that a political theory that continues to use these concepts needs a theological foundation PT 36— In The Concept of the Political, Schmitt claims that all true political theorists base their views on a negative anthropology which holds that man is by nature evil and licentious, and thus needs to be kept in check by a strong state capable of drawing a friend-enemy distinction if there is to be social order CP 58— This latter thesis, Schmitt admits, can take a secular form, as in Hobbes or Machiavelli, as the purely descriptive claim that man is inherently dangerous to man.

But Schmitt suggests that this secular version of a negative political anthropology is open to be transformed into the view that man, though by nature dangerous, is perfectible or into the view that man's dangerous behavior is a mere contingent consequence of a mistaken form of social organization PT 53—66; L 31—9. In order to establish a permanent need for political authority, negative political anthropology must be given a theological reading that portrays the dangerous nature of man as an irrevocable result of original sin.

Liberal de-politicization, from this perspective, is to be rejected as a sign of human pride that rebels against God, who alone, but only at the end of history, can deliver humanity from political enmity. Schmitt himself admits that the theological grounding of politics is based on an anthropological confession of faith CP And one is tempted to say that Schmitt's theory turns out to be philosophically irrelevant if this is really the last word.

Schmitt would likely have replied that the liberal assumption that man is perfectible, that humanity can overcome political enmity, and that to do so is desirable, is also an article of faith. The theological partisan of the political, in Schmitt's view, is as justified in practicing his creed as the liberal cosmopolitan and to engage in a deliberate cultivation of political enmity CPD 65— As long as the political theologian can make sure that the friend-enemy distinction survives, liberals will be forced to enter the arena of the political and to go to war against the partisans of the political.

And this fight, Schmitt hopes, is going to secure the continuing existence of political enmity and prevent the victory of liberal de-politicization CP Theory of Democracy and Constitutional Theory Schmitt's conception of politics tends to radically dissociate democracy from liberalism and, more controversially, from the constituted, rule-bound practices of popular election and parliamentary legislation that characterize the ordinary workings of modern democracy.

How, then, did Schmitt apply his radical perspective to the sphere of constituted democratic politics in the Weimar Republic? In The Crisis of Parliamentary Democracy, Schmitt understands democracy as the self-rule of the people.

In a democratic polity, the decisions taken by the rulers express the will of the people CPD 25—6. However, the principle of democracy, taken in the abstract, is open to different and competing interpretations. In political practice, the identity of the ruling will with the will of the people is never a simple given. Rather, it is always the result of an act of identification.

When political decisions are taken through majority vote, the will of the majority is identified with the will of the people, and every citizen is expected to obey regardless of whether he voted with the majority CPD 26— But what, Schmitt asks, is the basis of this identification?

If a majority can overrule a minority, and identify its will with the will of the people, why should it not be possible for the will of a minority to express the will of the people?

What if a group of democratic revolutionaries want to establish a democracy in a society where most people are opposed to the principle of democracy? Would they not be justified, from a democratic point of view, to abandon majority rule, to identify their own will with the true will of the people, and to subject their compatriots to a re-educative dictatorship?

Schmitt suggests that such a dictatorship would still have to be considered democratic, since it still appeals to the idea that political rule ought to be based on the will of the people CPD 28— Once one accepts this claim, the conclusion that Schmitt aims to establish in The Crisis of Parliamentary Democracy will follow: The electoral institutions that we usually take to be paradigmatically democratic are not, in truth, any more intimately connected with the principle of democracy than a dictatorship in the name of the people CPD But this conclusion must surely be an overstatement.

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Even democratic dictatorship, however crucial to the establishment of democracy, is exceptional and limited in time. Hence, there must be a characteristically democratic condition of legal normality, and a theory of democracy should tell us what it is. Schmitt's apparent attempt to dissociate the idea of democracy from any particular method of will-formation fails to explain why the democratic tradition has considered institutional provisions like the election of officials or the extension of the franchise to be characteristically democratic.

Schmitt acknowledges this problem in his Constitutional Theory. The idea that legitimate political rule must make appeal to the will of the people, Schmitt now claims, is grounded in the value of political equality CT — Political equality commits us to the denial of natural differences in status among citizens.

Per se, no citizen has more of a right than any other citizen else to hold political power. Every citizen, therefore, should participate on equal terms, as far as practically feasible, in the exercise of political rule. What is more, where it is necessary to appoint public officials with special powers not shared by all citizens, these officials must be appointed through periodical elections. The value of political equality, then, explains why certain forms of will formation are considered to be more intimately associated with the idea of democracy than others CT —5.

However, Schmitt's concession to the value of equality comes with a twist. The political equality that constitutes a political community, Schmitt argues, cannot be based on the non-exclusive equality of all human beings as moral persons.

Every political community is based on a constitutive distinction between insiders and outsiders or friends and enemies.

A democratic political community, as much as any other, must therefore rest on some marker of identity and difference that can ground an exclusive form of political equality which will only apply to insiders CT — Schmitt goes on to define democracy as a political system characterized by the identity of ruler and ruled. Ruler and ruled are identical if and only if the rulers and all the ruled share the substantive identity that the community as a whole, in deciding who its enemies are, has chosen to turn into the basis of its political identity CT —7; See also CPD 8— If all those who live together as legally recognized citizens of a constituted democratic state happen to distinguish between friend and enemy in exactly the same way, the equal participation of all citizens in the political process and the electoral appointment of officials would indeed be a requirement of democratic political justice.

It would be possible, moreover, to identify the outcomes of the political process with the will of the people, and to consider them democratically legitimate, even if some citizens find themselves in a temporary minority. But the reason why it has become possible to identify the outcomes of democratic procedure with the will of the people is not to be sought in inherent virtues of democratic procedure itself.

Rather, the identification is possible only in virtue of the prior identity of all citizens as members of a group constituted by a shared friend-enemy distinction CPD ; LL If, contrary to our initial assumption, those who live together as legally recognized citizens of a constituted democratic state do not share a political identity in Schmitt's sense, the identity of the rulers with all the ruled will no longer obtain, and the constituted democratic state will no longer be truly democratic.

The rule of the majority will degenerate into an illegitimate form of indirect rule of one social faction over another HV 73—91; LL 17—36; L 65— Sovereign dictatorship, then, is still necessary to create the substantive equality that grounds the legitimate operation of constituted, rule-governed democratic politics. The understanding of democracy so far outlined informs Schmitt's interpretation of the Weimar constitution Dyzenhaus , 38—; Caldwell , 85—; Scheuerman , 61—84; Hofmann , —52; Kennedy , — A democratic constitution, Schmitt argues in his Constitutional Theory, is the product of an exercise of constituent power on the part of a politically united people CT 75—77, —30, —6.

If the people did not already exist, Schmitt reasons, it would not be able to give itself a constitution, and a constitution not given by the people itself to itself would not be a democratic constitution. In giving itself a constitution a politically united people determines the concrete form of its political existence, but it does not bring itself into existence.

Since a democratic constitution is a unilateral determination, on the part of an already existing people, of the concrete form of its political existence, the people's constituent power must be inalienable.

As long as a people exists it can always decide to give itself a new constitution CT —1. Schmitt's theory of constituent power has recently received a lot of attention from authors who believe it might help to reinvigorate constituted democracy Kalyvas , 79—; Colon-Rios Schmitt recognizes that it would be implausible to assume that a written constitution represents a conscious choice of the popular sovereign down to its last detail.

Carl Schmitt

The revolution of the German people in that led to the creation of the Weimar constitution, for example, expressed the German people's conscious decision for a democratic, republican, and federal state, committed to the principles of the rule of law, and endowed with a parliamentary system of legislation and government CT 77—8.

But in addition to these general principles of political and social order, the Weimar constitution came to contain a large number of specific provisions that do not reflect conscious decisions of the popular sovereign CT 82—8. Schmitt argues that it would be wrong to treat such particular constitutional norms as possessing the same normative force as the people's decision for a concrete form of political existence, which is expressed in the basic principles implicit in the constitution.

It is wrong, therefore, to regard a constitution as nothing more than the set of all particular constitutional norms, and to assume that all these norms are equally subject to constitutional amendment.

Even where, as in Weimar, the positive constitution provides a procedure that seems to allow for the amendment of any particular constitutional norm, it is to be understood, Schmitt argues, that the core constitutional principles chosen by the constituent power are not open to formal abrogation. To claim that they are is to advocate a usurpation of the constituent power of the people by a mere party or faction CT 77—82, — Schmitt thinks that this argument will hold even where an initiative to amend the constitution requires a supermajority.

Political decision-taking on the basis of the simple majority rule is legitimate only if citizens share a political identity, in which case they will also agree on a set of constitutional fundamentals. Where they don't, the identity of ruler and all ruled no longer obtains, and majority rule will consequently become a mere license for the oppression of those who happen to be in the minority.

Such oppression, Schmitt argues, does not become any more legitimate where a super-majoritarian requirement is raised and met. That a numerical majority is relatively large and a numerical minority is relatively small does not entail, once there is no longer a shared political identity, that we are any closer to an identity between the ruler and all the ruled than in the case of a simple majority LL 39— Schmitt concludes that it would be absurd to take the view that the formal procedures of amendment provided by a democratic constitution can legitimately be used to overturn its constitutional fundamentals LL 85— Before , Schmitt employed this argument to oppose a Nazi seizure of power Machtergreifung in legal form Bendersky , — It should also be noted that his claim that there must be limits to constitutional amendment in a democratic constitution based on the principle of popular sovereignty, and that these limits legitimate the notion of a 'militant democracy' that is willing to curb individual rights to defend itself, has been very influential in postwar constitutional thought, in Germany and elsewhere see Ehmke , 33—53; Fox and Nolte , 18—20; Conrad ; Colon-Rios , — However, Schmitt's constitutional theory did not amount to an unqualified defence of liberal democracy.

While Schmitt denies the possibility of changing the fundamental nature of an established constitution from within, and decries the dangers of the tyranny of a mere numerical majority, he nevertheless affirms the possibility of fundamental constitutional change through sovereign dictatorship, and he makes it clear that the German people, in a renewed exercise of their constituent power, might legitimately choose a non-liberal and non-parliamentarian form of democracy CT The exclusionary nature of the friend-enemy distinction that is to be enforced through extra-legal sovereign dictatorship, to provide a basis for the normal functioning of the constitutional order, throws further doubt on the democratic nature of Schmitt's constitutional theory see Kraft—Fuchs ; Vinx a.

Schmitt's ambiguous position towards the Weimar system was equally on display in his interpretation of the dictatorial powers of the president of the Weimar Republic under art.

By partially assimilating the president to a sovereign dictator, Schmitt defended an unusually extensive interpretation of the president's authority that in effect subjected all constitutional rights to the discretionary interference of the executive headed by the president See DP.

Liberal rights were to be respected, as the German people had chosen to create a liberal constitution, but only on the condition that public order and security had been secured. For Schmitt, individual freedoms, even where constitutionally guaranteed, are to be regarded as concessions of the state to the individual since they are subject, in the last instance, to suspension through a sovereign decision on the exception CT 80—1, —8, — Schmitt, moreover, vehemently fought against the idea that the protection of the constitution ought to be assigned to a constitutional court.

A constitutional court, Schmitt argued, would either have to limit itself to uncontroversial cases in which constitutional law provides determinate guidance or take upon itself the responsibility to determine the political identity of the people. But for a court to assume that responsibility would, in Schmitt's view, have amounted to an illegitimate usurpation of the constituent power of the people, as much as an attempt to bring about fundamental constitutional change through formal constitutional amendment HV 12— Schmitt apparently hoped, throughout the Weimar Republic's years of relative stability, that presidential dictatorship in defence of the existing constitution might be sufficient to create a condition of normality that would allow the Weimar Republic to function.

But this hope was disappointed in the final crisis of the Weimar Republic. Schmitt's writings during that crisis started to toy with the view that the president should attempt to assume a role much closer to full sovereign dictatorship than even Schmitt's own interpretation of art.

This project failed when the Nazis managed to take power through the kind of abuse of constitutional procedure that Schmitt had warned against Kennedy , — After a very brief period of hesitation Schmitt nevertheless offered his services as a legal advisor to the Nazis.

He was careful to emphasize that the Machtergreifung amounted to a true revolution, despite its seemingly legal form, to maintain consistency with his view that a constitution cannot undergo fundamental change through formal amendment SBV 5—9 , but he was quick to translate his identitarian theory of democracy into the racialist idiom preferred by the Nazis SBV 32—46 and started to advocate an institutionalist theory of law that was supposed to take its bearings from the authentic form of life of the German people TJT 47—57, 89— Schmitt himself presented this shift as a fundamental reorientation of his legal-theoretical approach from a 'decisionist' perspective to 'concrete order thought'.

It is doubtful, however, whether the term 'concrete order' designates more than the situation of normality that Schmitt had always taken to be the basis of determinate legality.

His claim or hope was simply that the Nazis has successfully restored normality but see Croce and Salvatore , 11— The national socialist movement, in Schmitt's view, had managed to orchestrate an exercise of constituent power and to create a new constitution; one that was willing to draw uncompromising distinctions between the German people and its internal and external enemies.

Given this description of the Machtergreifung, Schmitt's political and constitutional theory seems to imply that Hitler's rule was perfectly legitimate. It therefore seems unnecessary to postulate a radical discontinuity between Schmitt's views before and after Dyzenhaus , 82—; Mauss ; Scheuerman , —39; Hofmann , — Liberal Cosmopolitanism and the Foundations of International Order Schmitt's conception of the political grounds a distinctive interpretation of democracy and constitutionalism in the domestic sphere.

It led Schmitt to an equally distinctive account of the foundations of international legality that has received increasing scholarly attention in recent years Scheuerman , —73; Scheuerman ; Odysseos and Petito ; Axtmann ; Hooker ; Slomp ; Legg ; Benhabib Schmitt is a staunch defender of sovereignty, but he does not embrace a flat rejection of international legality.

Rather, Schmitt appears concerned to outline the conditions under which sovereign political communities, with differing political identities, can co-exist in a shared international legal order. Two important consequences for international theory of Schmitt's conception of politics are immediately obvious. First, it implies that every true political community must claim a legally unrestricted ius ad bellum.

If the distinction between friend and enemy that constitutes a group's political existence is not drawn by the group itself but by someone else, or if the decision whether to go to war in a concrete situation is no longer taken by the group but by some third party — be it a hegemonic state, an international organization, or an international court — the group no longer exists as an independent political community CP 45— The second key consequence of Schmitt's conception of politics for international theory follows from the claim that the political existence of a group must be based on a particular identity that serves as the substance of a friend-enemy distinction.

Such an identity, of course, must differ from the identity of any other political community for the group in question to achieve a political identity of its own. It would be impossible for there to be a plurality of political communities — and hence, since political community is only possible where a group has enemies, for there to be any political community — if there were only one legitimate form of social organization or communal life CP 53—8.

These two consequences of Schmitt's conception of politics imply two conditions of the legitimacy of international order, at least if one makes the assumption, with Schmitt, that political communities have an unconditional right to preserve their existence CP 48—9; CT 75—7. Given this assumption, a legitimate international order must be able to accommodate a plurality of political communities with different, self-determined political identities.

What is more, it must recognize as legitimate the ius ad bellum claimed by all groups that have successfully constituted themselves as political communities. A conception of international order that violates any of these two conditions would be incompatible with political existence and therefore illegitimate. These demands on legitimate international order seem to be a recipe for anarchy.

Would it not have been better for Schmitt to admit that his view implies a denial of international legal order? Schmitt's reply to this objection is twofold. On the one hand, he argues that there is at least one historical instance of a functioning international order that lived up to his criteria of legitimacy. On the other hand, Schmitt claims that the attempt to subject the use of force on the part of political communities to external legal constraint and control, apart from constituting an assault on the possibility of political existence, will only lead to greater disorder and violence than we can expect to experience in a system that recognizes the political.

Schmitt's first reply is based on an interpretation of the nature of European political order in the period from the establishment of the modern sovereign state to the beginning of WWI.

In Schmitt's account, this period was not a period of mere anarchy. Rather, it was characterized by the existence of a public law governing the relations between European states, the ius publicum Europaeum NE — The main pillar of the ius publicum Europaeum, according to Schmitt, was a strict separation between the ius ad bellum and the ius in bello. On the level of ius ad bellum, all independent states were recognized to possess the right to go to war on the basis of their own judgment of justice and necessity.

The legal order of ius publicum Europaeum, in effect, did not distinguish between just and unjust war. Rather, both sides in a conflict between sovereign states were by default recognized as legitimate belligerents NE — Moreover, since both states in any conflict were held to be legitimate belligerents, states not directly involved in a conflict were taken to possess the right to choose to back either side or to remain neutral DCW 53— This framework, Schmitt argues, allowed European states to bring about a highly effective containment of the negative consequences of war, and thus of the dangers of political existence.

The abstraction from the justice of war allowed states to make peace without being hampered by the need to apportion moral blame. The freedom to side with either party in a conflict, or else to remain neutral, allowed states to contain conflicts by balancing or simply by staying out of the fight.

Most importantly, however, the mutual recognition of legitimate belligerency allowed for the effective enforcement of stringent constraints on the permissible means of warfare on the level of ius in bello. Inter-statal warfare during the period of the jus publicum Europaeum, according to Schmitt, distinguished carefully between combatants and civilians and abstained from using methods of warfare that might endanger the lives or the property of civilians NE —43, —8.

This containment of war, Schmitt claims, was premised on the willingness to bracket the question of justice on the level of ius ad bellum. Once one takes the view that a war can be legitimate on one side, while being illegitimate on the other, one is forced to conclude, Schmitt argues, that it is morally wrong to grant the status of legitimate belligerency to those who are judged to fight without a just cause, and equally wrong to assume that they ought to enjoy the same in bello-rights as those who fight justly NE ; CP 54—7.

Moreover, once one separates between legitimate and illegitimate belligerency, it will no longer be possible to argue that other states have the right to side with either belligerent or to remain neutral. Rather, third parties will be seen to have a duty to side with those who fight justly DK 26— The abandonment of the idea that all participants in a war among states are equally legitimate belligerents, Schmitt concludes, inevitably undercuts the containment of war achieved in ius publicum Europaeum PB — He regarded such developments as little more than attempts on the part of the victorious western allies to brand any violent German effort to revise the outcomes of WWI as illegal and thus as unjust, and to give themselves license for the application of means of coercion and for the use of methods of warfare that would have been considered as illegitimate in the context of mutually legitimate belligerency PB —; NE — Schmitt argued that international legalization on the model of just war theory would not prevent coming wars.

It would merely make them more total, as it would encourage opponents to regard each other as absolute enemies worthy of elimination NE —22; Brown ; Slomp , 95— However, Schmitt acknowledged that the era of ius publicum Europaeum had come to an end after WWI, together with the global hegemony of the classical European concert of sovereign states GO — Schmitt therefore aimed to assess the chances for the emergence of a new global order analogous in structure to ius publicum Europaeum and he made an attempt, in The Nomos of the Earth, to explicate the presuppositions of the kind of international order exemplified by ius publicum Europaeum.

For it to be possible for groups that are related by enmity nevertheless to co-exist in a shared framework which limits the consequences of war mutual enmity must be prevented from reaching the level of absolute enmity. Enmity, even while it may require one to defend one's own political existence against the enemy, must not require the complete destruction of the enemy's political and perhaps of his physical existence.

Ius publicum Europaeum, in Schmitt's view, had been capable of preventing absolute enmity through an alignment of friend-enemy distinctions with territorial boundaries Zarmanian If the forms of life of two opposed political communities are each tied to and expressed in a particular territory, then the two groups will be able, Schmitt argues, to spatialize the friend-enemy distinction between them NE 42—9.

From the point of view of any one of the two groups, the protection of its political existence will require it to repel any attempt on the part of the other group to dispossess it of its territory. But it will not require the one group to interfere with or to destroy the political existence of the other group if to do so is unnecessary for the protection of its own territory.

All political conflicts, under such circumstances, can be reduced to territorial conflicts, and this entails that all conflicts can in principle be contained as long as it is possible to divide territory in a way that will allow both groups to maintain their form of life NE —8.

For political conflicts to be reducible to territorial conflicts, opposing political communities must of course accept the principle of non-intervention in the internal affairs of other political communities. The reduction of political conflict to territorial conflict would be impossible if political allegiances were spread out across borders.

If some of those who share the identity that we have made into the basis of our political life live in a territory controlled by another political community we will have to concern ourselves with their fate.

If we perceive them to be oppressed by that other community, we may feel compelled to go to war for them, even if the other community has not aggressed against our own territory.

To territorialize the friend-enemy distinction, hence, one must ensure that all and only the people who share the same political identity live in the same territory GO 86—8, 96— Some political identities, however, do not lend themselves to a spatialization of the political. A community whose political identity is premised on the promotion of liberal-humanitarian values which it takes to be universal, for instance, must concern itself with the question whether other political communities respect those values and be willing to interfere if they don't.

It cannot accept a reduction of political conflict to territorial conflict, as its political identity purports to be non-exclusive.

A global order on the model of ius publicum Europaeum will therefore remain unattainable, and a global civil war characterized by absolute enmity will be unavoidable, Schmitt concludes, as long as the world's foremost powers are committed to universalist ideologies that imply a rejection of the spatialization of political conflict GO 90—5; VA — As Schmitt would later point out in Theory of the Partisan, the distinction between absolute and contained enmity gives rise to a distinction between absolute, real, and conventional enemies TP 85—95; see also CP 36—7; Slomp , — A conventional enemy is an enemy within an established system of containment, whereas a real enemy is an enemy that can be made, though perhaps only after conflict, to settle for a territorial division.

Absolute enmity, by contrast, exists wherever there is a conflict that is not amenable to territorial settlement. In Schmitt's view, it is the powers who, for ideological reasons, refuse to accept a spatialization of conflict that are to blame for absolute enmity and the unbridled violence it entails.

Those who are real enemies, but who need not be each other's absolute enemies, then, have to find a way to recognize each other, to divide the world among themselves, and to hold down political forces that must reject the territorialization of political conflict. Schmitt's The Nomos of the Earth, accordingly, portrayed the mutually recognized appropriation of the globe by mutually non-intervening, territorially-based political communities as the true foundation of all legitimate international legal order NE 42—9, 67—83; GO 77—9.

During the Nazi-period, Schmitt applied this view to a justification of Nazi-aggression, by portraying Nazi-Germany as a local hegemon willing to support a global territorial division based on a principle of non-intervention. In this vein, Schmitt interpreted the Monroe-doctrine as the first act of hegemonic appropriation of a sphere of interest that might come to form part of a new global order, if only America were willing let Germany impose its own Monroe-doctrine on continental Europe GO 83— Schmitt, though, did not question his claim that international order ought to be based on territorial division.

It should be obvious that Schmitt's theory of the presuppositions of international order is closely related to his account of the conditions of well-functioning domestic legality Vinx b. The spatialization of conflict requires political communities strong enough to enforce internal political homogeneity. But political communities are unlikely to be able to enforce internal homogeneity if they have to live in an international environment that lacks a clear spatial order because it is controlled by powers that are ideologically hostile to the spatialization of conflict.

Legitimate domestic order and legitimate international order, for Schmitt, are thus two sides of the same coin.

Both require a defense of the political, as Schmitt understands it. Axtmann Schmitt's suggestion, however, that the preservation of the political as he understands it is a necessary condition of legitimate domestic and international legality seems rather hard to swallow in light of the catastrophic experiences of the 20th century.

Schmitt was an acute observer and analyst of the weaknesses of liberal constitutionalism and liberal cosmopolitanism. But there can be little doubt that his preferred cure turned out to be infinitely worse than the disease. In the list of Schmitt's works, a date in parentheses after the title refers to the year of first publication in German or in case of posthumously published material to the year in which the text in question was written.

Works by Carl Schmitt Gesetz und Urteil. Beck, Hoelzl and G.A people, thus, will have an existence prior to all legal form as long as there is a sense of shared identity strong enough to motivate its members to fight and die for the preservation of the group.

In contrast to Acts of Parliament, many formal, written constitutions therefore contain an amendment or revision procedure. The point of this remark is that a state can only be legitimate if its legal boundaries embody a clear friend-enemy distinction. By constituting a set of values, principles, and institutions as the foundation of its political existence within a state, a nation exercises its political self-determination through the constituent decision that the act of constituting involves.

In this project, coherence is not assessed as a logical prerequisite of a legal order, rather, it addresses the relationship between law and morality. Sabine and professor of political science George J. The political constitution Therefore, for Schmitt, sovereign constituent power expresses itself in two ways. Schmitt was an acute observer and analyst of the weaknesses of liberal constitutionalism and liberal cosmopolitanism.

A democratic constitution, Schmitt argues in his Constitutional Theory, is the product of an exercise of constituent power on the part of a politically united people CT 75—77, —30, —6. Hoelzl and G.

ASHLIE from Harlingen
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