Carl Schmitt

Whoever can declare an emergency, and suspend the normal rules during it, is the one actually in charge, whatever the constitution says about where power sits.

Sovereign is he who decides on the exception.

The state of exception is the real emergency the law did not foresee: the case the rules do not cover, the threat to the survival of the order itself. Schmitt’s move is to say that sovereignty does not live at the centre of the system, in the question of who makes ordinary law. It lives at the border, in the question of who can suspend all of it when it counts.

In ordinary times the machinery hums and the sovereign is invisible. The emergency pulls the curtain back and shows who actually decides.

Trace the mechanism

Step 1 of 5

Test yourself

01

A rule cannot cover the case nobody foresaw

Law is general and written in advance. That is what makes it law rather than an order: it says now what will be done later, in cases described in advance. A genuine emergency is the case it did not anticipate and could not have.

BackNext step

The whole sequence

1. 01A rule cannot cover the case nobody foresawLaw is general and written in advance. That is what makes it law rather than an order: it says now what will be done later, in cases described in advance. A genuine emergency is the case it did not anticipate and could not have.
2. 02Someone has to decide that this is that caseNo rule can declare its own exception. A person or a body has to judge that the situation in front of them falls outside the normal run of things. Nothing in the rules governs that judgment, because the judgment is about whether the rules still apply.
3. 03The same someone decides what to do, including setting the law asideTo save the order the law exists to protect, normal law can be suspended. Whoever can do that, and be obeyed while doing it, is the sovereign. Not the person the constitution names. The person who is actually obeyed.
4. 04So legality rests on a decision, not on a ruleRules only work inside a situation calm and ordered enough for rules to work, and producing that situation is an act of will rather than an application of law. Schmitt calls this decisionism. Underneath the deepest rule there is not a deeper rule. There is somebody who decided.
5. 05A state that denies it has a sovereign has only hidden where he sitsThis is the payload, and the reason Schmitt is worth reading against himself. He argued that a constitutional order which insists nobody holds this power has not abolished the power. It has lost track of it, and will either be paralyzed in a real crisis or captured by whoever is willing to decide.

The room he was writing in

By the late 1920s the German republic had stopped working the way its constitution described. Parliament could not assemble majorities. Paramilitary formations fought in the streets. So the president governed by emergency decree under Article 48 of the constitution, and by 1932 that was not an interruption of normal government. It was the government.

Schmitt watched a legal order run for years on the clause meant to cover the emergency, and turned what he saw into a general claim about all legal orders. Keep that origin in view. It explains the sharpness of the theory and it explains its limits.

What he was arguing against

The target was legal positivism, and specifically Hans Kelsen, the most serious legal theorist of the period and the principal drafter of the Austrian constitution of 1920. Kelsen held that a legal system is a hierarchy of norms: this rule is valid because that higher rule authorizes it, up to a basic norm at the top. Rules all the way down.

Schmitt says that at the bottom sits not a norm but a decision. A concrete act of will by a concrete authority, which founds the order and can suspend it. The foundation of all legality is therefore pre-legal. He calls this position decisionism. Read both men. Kelsen has the better account of how a functioning legal system works day to day, and Schmitt has the better question about what happens when one stops functioning.

Political theology

All significant concepts of the modern theory of the state, Schmitt argued, are religious concepts in secular dress. He calls the argument political theology. The sovereign suspending the law in an emergency is the political version of the miracle, God suspending the natural laws he wrote himself. The liberal constitutional state corresponds to the god of the deists, who built the machine, set it running and never intervenes again.

Schmitt thought that second picture was a self-flattering fiction. Whether it is or not, the comparison is a good instrument for spotting a political argument that is quietly doing theology.

Friend and enemy

In The Concept of the Political (1932) he defines politics by its own distinction, the way morality has good and evil and aesthetics has beautiful and ugly. The political distinction is friend and enemy. Every genuinely political relation reduces, in the last instance, to the possibility of sorting people into those who belong and those against whom the group may have to fight.

Read as a description of how political mobilization works, this is uncomfortably accurate and worth having. Read as an instruction, it is the argument that carried him where it carried him.

The diagnostic to take

Whenever an institution presents itself as pure neutral procedure, a government of laws and not of men, ask two questions. Who decides when the rules get suspended, and who decided the rules into being? The questions work on constitutions, on platform moderation policy, on university disciplinary codes, and on any organization that presents its procedures as simply what fairness looks like.

Note the gap between using that diagnostic and accepting Schmitt’s conclusion. The diagnostic says a decision sits at the bottom of every legal order, which is an observation. His conclusion is that the decision should be made by an unconstrained authority, which is a preference, and it is his.

Psychological underpinning

Max Weber’s account of legitimacy is the pairing here: authority holds because people believe it holds, not because it rests on anything firmer. Alongside that, the ordinary tendency to treat the legal frame you were born into as natural and permanent, rather than as something instituted, recently, by people with interests.

Primary works

• Political Theology (1922). Four short chapters. The sovereignty argument is in the first.
• The Concept of the Political (1932). Friend and enemy.
• The Crisis of Parliamentary Democracy (1923). The attack on government by discussion.

Serious objections

• The framework can justify anything a strongman does, and historically it did. That is not an accident of reception. Schmitt applied it that way himself, in print, for the regime.
• His account of liberalism is a caricature built to be knocked over. Constitutional orders handle emergencies through legal means far more often than his theory allows, and legal scholars have documented how.
• The construction has its motive on its face. It makes authoritarian decision the truth of politics and parliamentary argument a sham, which is the conclusion he wanted before he started.
• Kelsen’s answer is that Schmitt confuses who holds power in fact with what is legally valid, and that a theory of law unable to tell those apart is not a theory of law.

Where to go next

• Hans Kelsen, Pure Theory of Law. The position under attack, in its own words.
• Agamben, who takes the exception and argues it has become permanent, and whose page is also where this framework is most visibly overapplied.
• Jan-Werner Müller, A Dangerous Mind, on Schmitt’s postwar influence, which runs across the political spectrum and includes people who would be startled to find themselves in the lineage.
• Walter Benjamin, Critique of Violence (1921), on the violence that founds a legal order as distinct from the violence that maintains it. Benjamin and Schmitt read each other.