Highlights
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2024-12-08 17:28 Written versions of all Worthy House writings are available at Our main site, TheWorthyHouse.com Today we are discussing political four chapters on the Concept of Sovereignty by Carl Schmitt Sovereign is he who decides the exception among serious students of political philosophy, at least on the right, these may be the most famous words of the 20th century.
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2024-12-09 16:27 In the Post World War II decades, such questions seemed very remote and theoretical, part of the turmoil of a benighted age we had left behind. But we were wrong about all of it, and Schmitt was right that this topic is universal and timeless. Thus, from Schmidt we can learn much that we can be sure will be directly applicable to the 2000s. Political theology, published in 1922, is generally regarded as background and backdrop for Schmidt’s 1927 the concept of the Political, in which Schmidt more precisely lays out his own mature political positions, including the friend, enemy, distinction, and the need of a legitimate state to bring stability and order. Yet this book should not be underrated. In particular, Political Theology contains the essence of Schmitt’s core political theory, decisionism, which rejects that any system can contain within itself all tools necessary for governance, and thus ultimately one super legal authority must decide questions not covered by existing law. The decisionist implements the good law of the correctly recognized political situation by means of a personal decision. In his 1921 work Dictatorship, Schmitt had explored states of emergency, states of siege, and states of exception, which for him are not identical, though they are similar primarily through a historical lens. These are the crucial recognized political situations on which he focuses in political theology. Thus this book underpins and reinforces Schmidt’s analysis in his earlier book, even as it departs from it.
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2024-12-08 17:31 The Weimar Constitution famously did, but an ambiguous one creating no end of interpretive headaches. And in any case, for Schmidt, an exception is always possible, if not inevitable, and it ruptures any formal legal structure.
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2024-12-08 17:36 The sovereign making the decision is making law and will necessarily reestablish an order, a set of norms.
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2024-12-09 16:28 He also attacks Kelson as neo Kantian meaning, endorsing Kant’s view that emergency law was no law at all. But on the contrary, says Schmitt, emergency law is the most lawlike of all law because it embodies the raw essence of the decision, which is the beating heart of sovereignty. Kelsen naturally did not believe in, or did not want to believe in the exception. He thought a system of positive law could be constructed such that all questions could be answered within the system. Schmitt thought not only that this was impossible, but that an individual, a person, must ultimately be the solution to problems that superseded the system. For Schmitt, one cannot leave out or ignore the personal element in law. Such ignoring is what the liberal constitutional tradition attempted. It does not work. Rather, Schmidt endorses the famous phrase of Thomas Hobbes, of whom he was a great admirer, auctoritas non veritas, facit legem. It is authority, not truth, that makes the law. Hobbes is thus, in Schmidt’s frame, a decisionist.
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2024-12-09 16:27 Nonetheless, this chapter also opens with a famous all significant concepts of the modern theory of the state are secularized theological concepts. Schmidt means this in a dual sense. More obviously, that the historical development of the theory of the state flows from theological concepts such as God as the omnipotent lawgiver, something explicit in Hobbes, and less obviously, that the systematic structure of modern theories is theological in nature. So, most notably, the exception in jurisprudence is analogous to the miracle in theology. Deism rejected miracles in the same way constitutional liberalism rejected the sovereign’s direct intervention in a valid legal order.
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2024-12-09 16:28 The rationalism of the Enlightenment rejected the exception in every form. Schmidt notes that it is primarily by examining the thinking of the Enlightenment’s critics that we can see this, notably Joseph de Maistre and Juan Dinoso Cortez. Schmidt makes an explicit link between Kelsen type conceptions of the state as natural scientific, which ignores that the difference between the substance and the practice of law cannot be grasped with concepts rooted in the natural sciences and democracy, which is the expression of a political relativism and a scientific orientation that are liberated from miracles and dogmas and based on human understanding and critical doubt
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2024-12-09 16:27 We can hope that the decision will be just, but that is not immediately Schmidt’s concern. This seems to fly in the face of what we tend naturally to believe, especially in the Anglosphere, inheritors of the common law and the limited monarchy. What nice person can oppose the rule of law? However, let’s think about it. Not within Schmidt’s framework, which is clear enough, but within The America of 2021, soon 2022, we have no rule of law. We are governed by narco tyranny, most notably that of the federal government, but also present on many lower levels of government, down to the municipal. Nothing better exemplifies this than the regime’s approach to the Wuhan plague. One might wonder if this is an example of Schmidt’s philosophy and practice. The rule of law has been suspended by our sovereigns as a response to a relatively minor disease. Whether competently or justly is irrelevant.