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10 Can. I compare this radical view to the 1. Die Diktaur ion den Anfdngen des modernen Soureranitiitsgedankens bis zmproletarischenKlassenkampf(Munich & Leipzig: Duancker & Humblot. I do not wish to dispute B6ckenfdrde's contention that sovereignty is the key notion of Schmitt's conception of public law. ed. a shift that determines a difference between the conception of sovereignty he held in 1922 and the one he held in 1928 when he published the ability to lift its subject above the legally constituted order. The decision Schmitt has in mind is an absolute decision. 2. My concern is that an important shift marks Schmitt's work during these years. bid. No. 1928) at 23. the state has "the monopoly of the ultimate decision. Politische Theologie Vier Kapitel zur Lehre von der Sourerdnitift (Munich & Leipzig: Duncker & Humblot. "Der Begriff des Politischen als SchlUssel zum Staatsrechtlichen Werk Carl Schmitts" in Helmut Quaritsch. While his production is marked. a view which identifies it with the monarchical principle. & Jurisprudence 189 1997 .. by an extraordinary sensitivity toward his own concrete situation. See Renato Cristi. reflecting possibly the mood of 1928. Canadian Journal of Law and Jurisprudence Vol. Democracy and Catholicism" (1993) 14 Hist. One of the arguments presented by Bckenfdrde in support of his thesis has Schmitt's definition of sovereignty and the state as its locus. which marks the halcyon days of the Weimar republic.1 (January 1997) HeinOnline -. "Carl Schmitt on Liberalism. See Carl Schmitt." This means that the essence of sovereignty. Recently. Carl Schmitt. leading at one point to an unbounded and shameless opportunism. of Pol. Ober CarlSclmitt (Berlin: Duncker & Humblot. Emst-Wolfgang Bdckenfirde has tried to shake off the Veifassungslehre from its composed academic bearing by relating its argument to the polemical friend/enemy theory developed by Schmitt in his Der Begriffdes Politischen(1927) and Schmitt's characterization of the state as the political unity of a nation. See Ernst-Wolfgang Bfckenfirde. 1988) at 287.'" The whole system of legality is thus relativized by a power that stands outside and above it. at 83. on the whole. In the second section. but as the monopoly of decision. my thesis to this aspect of Schmitt's work. The first section of this essay examines the uninhibited view of sovereignty Schmitt develops in his Politische Theologie. this particular work seems to rise above the political fray. 4. In another place I have examined this shift 4 Here I would like to extend with respect to the notions of liberalism and democracy. 1922) at 20. Complexio Oppositonm. a decision "created out of nothingness. According to Schmitt's PolitischeTheologie.Carl Schmitt on Sovereignty and Constituent Power Renato Cristi Schmitt's Verfasswgslehre stands as perhaps the most systematic and least circumstantial of his works. X. J.". bidk at 20. Thought 281 at 282-300. where he flaunts his allegiance to the Catholic counterrevolution. Beyond this. L. which he defines "not as the monopoly of domination or coercion. 3. Bickenfdrde has connected the Verfassungslehre to the eminently partisan notion of sovereignty put forth by Schmitt in his Poltische Theologie (1922).

He tries to circumvent it because the constitutional theory of liberalism. L. Should the 5. therefore. J. Verfassungslehre(Berlin: Duncker & Humblot. Schmitt attempts to define the notion of sovereignty. Sovereignty. power resides in the legal system itself and not in any personal authority representing the state. when public order and security (le salutpublic) are in jeopardy. & Jurisprudence 190 1997 . According to Schmitt. 6. however.The third section discusses Schmitt's employment of constituent power as a surrogate for sovereignty. Schmitt. In this section I show how Schmitt surmounts this liberal view by invoking the notion of constituent power orpouvoirconstituant. be given any recognition in a liberal constitution. HeinOnline -. 1965) at 244. avoids the issue of politics in general and sovereignty in particular. the theory that defines the Weimar constitution. does not directly discuss the issue of sovereignty in this context. both monarchy and democracy can be interpreted as political forms that convey constituent activity. at 13. 7.10 Can. This formulation leaves out the crucial issue of its concrete application. Schmitt intends to take away from the pouvoir constituantof the people the fruits of sovereignty. Finally.Cristi apparently more balanced conception offered in his Verfassungslehre. When Schmitt reviews the currently held opinions on sovereignty he observes that its commonly accepted definition--"sovereignty is the highest underived power of domination" 6-is valid but too abstract. He observes that sovereignty no longer plays a role in the discussion ofjurists and legal philosophers. Supra note 1 at 12. ' The ideal liberal constitution is defined exclusively in terms of the rule of law. "It is characteristic of liberal constitutionalism to ignore the sovereign. the destruction of the German imperial constitution in 1918 and the genesis of the Weimar constitution in 1919--events where the pouvoir constituant of the people was determinantexpose the notion of sovereignty. Sovereignty attains visibility only during exceptional situations. an essentially political notion.Sovereignty is here redefined by superseding its identification with the monarchical principle. the fourth section examines both the subject and the activity of constituent power to confirm its conceptual kinship with sovereignty. By refusing to develop a political theological interpretation of democracy and adopting a view on representation similar to that of Siey~s. I In his PolitischeTheologie. whether this sovereign be the monarch or the people. namely who decides in cases of extreme conflict. Schmitt opposes this view from the very start. Ibid. ought not. a veil that he is determined to pierce in order to expose its presence in political and legal affairs and documents. Carl Schmitt. For some interpreters this definition appears to have a certain affinity with Bodin's definition-"la souverainetjest la puissance absolue etperpituelled'une Rdpublique " '7 This view is incorrect for it ignores the context of Bodin's definition. His views are determined by the struggle for supremacy between the prince and the estates. As a result. According to rule of law liberalism. A thick veil covers it.

"'2 this article addresses the question of sovereignty precisely as Schmitt would define it. supirieuret wtsrieura I'acteconstitutionnelF was first introduced by the Chante of 1814. particularly Hobbes and Pufendorf. & Jurisprudence 191 1997 ." Schmitt also notices that during the sixteenth and seventeenth centuries. HeinOnline -." the document that institutes the monarchical principle during the Restoration period and brings the true notion of sovereignty back to life. est urgente. Schmitt refers the matter to what he had written earlier on the state of exception. 13. who decides the extreme case? Two related illustrations offered by Schmitt prove most revealing. After Bodin.supranote 1.Carl Schmitt on Sovereignty and Constituent Power prince's promises to the estates or the people abrogate his sovereignty? There is a natural obligation to fulfil one's promises. 9. 1814. Schmitt explicitly associates article 48 with article 14 of the French Charte of June 4. about who decides. This is what he refers to as "political theology"." According to Schmitt. J. In fact. See Die Diktatur.supra note 3 at 193. the real question is who adjudicates and who has the power to decide. defined as "rautorit~prexistant du roi. "Who is competent when there is no clear provision of competence"'" in other words. at 14." This is obviously a misprint In DieDiktatur. bid.'" And that decision can only be left in the hands of the one person who can effectively ensure the unity of the state-the monarch. See Erich Kaufinan. 15. In granting the Reicisprdsidentthis "unlimited absolute power. In his DieDiktatur. First he considers the so-called monarchical coanmude lesfarces de terreet mer. Supranote 1 at 61.Schmitt takes Hobbes and Pufendorf to be supporters of "scientific natural law (wissenscha.10 Can. cution des lois et la sfAretJ de l'Jat. 12.Ibid. Ib 10. For them the issue is not the content of a decision. Ibid at 15. The context that leads to its original formulation in 1814 has to do with the question of who is competent to decide in cases when the juridical order does not settle the matter of competence." The question about sovereignty reduces to the question about its subject. Schmitt refers to "the Charte of 1815. a theology that embraces the philosophical conception of God as the sole architect of the universe determines the notion of sovereignty. but only that a decision be effectively made. the novelty of Bodin's view consists in his ability "to incorporate the decision into the concept of sovereignty. Studien zur Staatslehredes monarhischen Prinzipes (Leipzig: Oscar Brandstetter. In his PolitischeTheologie. Schmitt quotes from one of Descartes' letters to Mersenne: "c'est Dieu qui a itabli ces lois en natureainsi qu'un roidtablitles lois en son royaumne"'1 8.. at 16. supranote Iat 18. L. the natural lav theorists of the seventeenth century. which bestows on the Reichsprdsidentthe faculty to decide on the exception. Then he examines article 48 of the Weimar constitution. but that duty expires "si la ndcessitg 8 In such cases everything reverts to the decision of the prince. Erich Kaufmann maintains that the monarchical principle.supranote 3 at 22-24. he correctly identifies it as the Charte of 1814 and transcribes its article 14: "Le Roi est le chefsuprrnede Itat. The modem prince is a transposition of the Cartesian God to the political world. etfaitles rtglements et ordonnancesnIcessairespourrex6.. 1906) at 38.d6clare la guerre. 11. Sovereignty falls into the hands of the Reichspriisidentfor he is the one who decides on the exception. See Die Diktatur." 14. also understand sovereignty in terms of who decides on the state of exception.filicheNaturrecht)" and opponents of the "natural law of justice (Gerechtigkeitsnaturrecht)" tradition.Ibid. at 18.supra note 3 at 21-24.

According to Schmitt. Hobbes arrives at a similar result. at 65-66. The "political metaphysics" of democracy cannot claim political theological status. They are based on a decision concerning the interest of the state and the state's foremost interest is that a decision be made. Schmitt sees no possible compromise with liberalism. His political views are still tied to a decisionist and personalist view of politics. Donoso advocates dictatorship.23 Schmitt agrees with Maistre and Donoso Cort6s that absolute monarchs are the proper subjects of sovereignty. The Leviathan is the "colossal person" postulated as the "ultimate concrete deciding instance. 20. In 1922. normatively speaking. at 62. created out of nothingness. L. still maintained that the voice of the people is the voice of God. the slayer of sovereignty. 19." But Hobbes does not go this far. from similar decisionist premises-auctoritas. Ibid. Donoso realizes in 1848 that "the epoch of royalism is over. Laws are essentially commands. HeinOnline -. Ibid. Inspired by their counterrevolutionary conservatism. Schmitt 16. which ties sovereignty to the exception. because there are no more kings. despite his nominalism and his attachment to science and a mechanistic view of nature. reveals the same politico-theological conception. diverge substantially from liberalism. Ibid. Hobbes understands the power of the sovereign to rest on a more or less tacit agreement of the people. 22. Like his Catholic counterrevolutionary mentors. Ibid. namely popular sovereignty." 8 and no democratic arrangement will be able to claim genuine sovereignty. 23. There is no royalism any more. '20 Political theology has become unthinkable within a democratic context. his identification of the will of the sovereign with the general will means that "the decisionist and personalist element in the hitherto existing concept of sovereignty is lost:" 7 Henceforth. Both in Die Diktatur and in Politische Theologie he dismisses the people as a legitimate and fitting subject of sovereignty. at 61 17. at 62-63. the unity displayed by the people loses "this decisionist character. at 23. Only de Maistre is able to shake off that rationalist residue and radically negate the sovereignty of the people.Cristi Hobbes. He does not fully perceive that democracy and the notion that sustains it. as Tocqueville saw it. & Jurisprudence 192 1997 ."' 6 Schmitt's conceptual and historical analyses. lead conclusively to one result-only an absolute monarch can be the proper subject of sovereignty. his memory still fresh with the revolutionary events in Germany. Ibid. In a democratic setting "the theistic and the deistic idea of God is unintelligible"' 9 Democracy in America. In Die Diktatur."I' In view of this exhaustion and extinction of legitimacy. J.Schmitt writes: "the decision on which a law is based is. bringing out its decisionist and personalist elements. Die Diktatur.facit legem. at 63. 18. Caught within a rationalist outlook. Ibid. Ibid. supra note 3 at 23. 21.10 Can. With Rousseau things change substantially. Schmitt evokes the counterrevolutionary thought of Juan Donoso Cortes. Today a political philosopher like Kelsen can only "conceive of democracy as the expression of a relativist and impersonal scientism. non veritas.

the aim of a sovereign dictator is the elimination of"the whole existing order" and the generation of a new constitution. The idea of absolute monarchy.Schmitt develops the notion of sovereign dictatorship based on the traditional role played by Roman commissarial dictators. the whole endeavour of a liberal constitution aims at marking off a sanctuary for individual freedom and disavowing the political disposition of the state. tries to skirt the political element as such. an appropriate use of functional rationality:' it seems to me that Schmitt here promotes the notion of sovereign dictatorship by upholding its juridical value. one thought to be the true constitution. as the sole subject of 24. Sovereignty could not be ascribed to a legal system itself. completely "devoid ofjuridical value" (ibid. rol. the principle of the rule of law. In it he distinguishes between the political element of a constitution and its properly liberal element.10 Can. what lies above and beyond a constitutional system is not purely a Machfrage. "This is the meaning ofthepouvoirconstituant"(ibid. This abrogation of the existing order translates into the adoption of a revolutionary stance whereby sovereign dictators place themselves above the constitution. This was the absolute decision on which stood a now relativized positive constitution. Weimar liberalism was not self-sufficient and self-generated. The constitution did not descend from heaven ready-made. dated December 1927. It would appear that this is a purely political move. not to the one that actually exists" (DieDikfawr. McCormick. which is essentially related to sovereignty. "The Dilemmas of Dictatorship: Carl Schmitt and Constitutional Emergency Powers" in Proceedingsof the 17th IVR orld Congress. at 137) which allows one to transpose the limits of a legal system without crossing over the limits of the juridical. The ideal liberal constitution is defined exclusively in terms of the rule of law. an essentially political notion. i. according to Schmitt. the theory that determines the spirit of the Weimar constitution and absorbs Schmitt's attention in this work. supra note 3 at 137). The genesis of a constitution is the locus where sovereignty is manifested with greater clarity. Schmitt saw here an opening to reintroduce the theme of sovereignty. In his Die 137). Schmitt's sovereign dictator borrows from the juridical status that attaches to commissarial dictators. Despite the overtly liberal framework of the Weimar constitution. but owed its existence to a decision of the German people. Schmitt's political sensors have no difficulty in finding the traces of sovereignty in its make-up. HeinOnline -. & Jurisprudence 193 1997 . 1995) at 112. L. therefore. even though its thoroughly systematic argument presupposes it. Contrary to McCormick. As Schmitt admits. J. While their function was the preservation of the constitutional order. See John P. but presupposed a political decision in its favour. its aim is strictly to confine the political prerogatives claimed by the state. The reason why Schmitt needs to circumvent its discussion is brought forth in the preface to that work.. The constitutional theory of liberalism. VI (Bologna: Cooperativa Libraria Universitaria Editrici. In 1919.. who claims that the aim of Die Diktaturis to present "temporary dictatorship. ought not be given any recognition in a liberal constitution.-" II Schmitt's Verfassungslehre does not directly discuss the notion of sovereignty.Carl Schmitt on Sovereignty and Constituent Power contemplates but one alternative in 1922-a sovereign dictatorship as an effective surrogate for the monarchical principle.e. But. a sovereign people had decided to confirm its national unity and define the mode of its political existence by means of a constitution.A sovereign dictator appeals to a power that even if not constituted ought to be seen as the "foundation" of a constitution. "An apptal is thus made to the constitution that will be enacted.

occasionally and with tacit tolerance. Ibid. 26. Influenced by the views of the Catholic counterrevolution. The Weimar constitution was a case in point. with the publication of his Parlamentarismus. 28. In his Verfassungslehre. Schmitt. L. Schmitt saw the need to modify the personalist and hard decisionist conception of sovereignty he held earlier in his Politische Theologie.'" The exercise of apocryphal acts of sovereignty described by Schmitt takes place at the margins of normal constitutional life. In fact. never fully repressed. It manifests the marginal presence assigned to the notion of sovereignty in the Verfassungslehre. a discussion of sovereignty belongs formally to the "theory of sovereignty" (Lehre von derSouverdnitdt) or a "general theory of the state. he had envisaged absolute monarchy as the only possible embodiment of sovereignty. First. Second. which are characteristically performed by non-sovereign state officials or bodies who." not to constitutional theory. apocryphal acts of sovereignty are exercised. in his Verfassungslehre. Schmitt's constant preference for a strong State was not challenged by this acceptance of monarchy and democracy as legitimate forms of government. but absolute democracy. In 1923. Supra note 5 at xii. An expanded view of sovereignty permits the concurrent adoption of the liberal rule of law.Schmitt appears to have modified his initial views on liberalism and democracy.10 Can. a reading that does not reject sovereignty offhand. make sovereign decisions. 25. wanted to prove that Weimar liberalism was in fact an instance of such a compromise. In practice. This meant a shift in his conception of sovereignty and a weakening of its personalist and hard decisionist aspects. at xii.Cristi sovereignty. whether it be expressed monarchically or democratically. The mistake of rule of law liberalism lies in its outright denial of sovereignty. & Jurisprudence 194 1997 . he recognizes that democracy may be stronger and more decisive than monarchy. As he himself acknowledges. had perished in 1918. J. Democracy and Catholicism:' supra note 4. it was easy to expose the view held by liberals that politics and sovereignty had been decisively expelled from human affairs. had replaced it. "What has suffered the most under this fiction and this method of avoidance is the concept of sovereignty. always finds channels for its manifestation.' The notion of democracy did not include liberal relativism and the liberal distaste for the political. 1 discuss this issue in "Carl Schmitt on Liberalism. He sees now the need to adopt an entente with liberalism.26 These two considerations ease the way for a political reading of the Weimar constitution. It is this rearticulation of liberal and political elements that determines the argumentative structure of the Verfassungslehre. supported by the sovereign pouvoir constituantof the people. But sovereignty. This implies a shift towards acceptance of a conservative reading of liberalism. 27. a compromise had been struck between the ideals sponsored by liberals and the political decisions needed to make those ideals effective. Schmitt shifts from an intransigent adherence to the conservative revolutionary themes he shared with de Maistre and Donoso Cort6s to a more flexible posture. Alongside its liberal elements Schmitt now incorporates a political dimension. In his Verfassungslehre. supra note 5 at 236. he came to realize that democracy was a political form of government that could also serve as a vehicle for sovereignty. HeinOnline -.

the condition for Schmitt's employment of the notion of constituent power as a surrogate for sovereignty. Schmitt finds a way to reintroduce it at the very core of the Verfassungslehre. A central portion of his Verfassungslehre. it becomes clear that constituent power is indeed a political notion. Schmitt's account of this constitutional genesis is guided by a basic principle: "within each political unity there can be only one subject of constituent power"9 In his historical study of Germany's constitutional development. L. The genesis of the German constitution of August 11. 1919. & Jurisprudence 195 1997 . now animated by the constituent power of the German people. favour the sovereignty to the people.10 Can. sovereignty becomes visible only during exceptional circumstances. at the same time. is a shift in his conception of the latter. In these circumstances. He observes how the destruction of the German constitution of 1871 is attended by the abrogation of the pouvoirconstituantthat sustained it. It is the best way to bring both monarchy and democracy under one generic notion. HeinOnline -. Constituent power functions as a legal notion and falls within the range of interest of public law. Its aim is to leave the notion of sovereignty exposed. But this is precisely what he does in his Verfasswgslehre. this coincides with the revolutionary genesis of the new constitution. My aim is to demonstrate that the acceptance of this notion certifies the presence of sovereignty in this treatise. he employs the notion of constituent power (pouvoir constituant or verfassungsgebende Gewalt) as its surrogate. but it adequately supplants the notion of sovereignty. Sovereignty qua constituent power comes into view most clearly at the moment when a constitution is generated. bidbat 53. J. Schmitt 29. Without explicit acknowledgment. According to Schmitt. Hard decisionism and personalism meant that only monarchs could be genuine subjects of sovereignty. Its visibility rises to prominence. Im[ I will now train my attention on what Schmitt has to say about the notion of constituent power in his Verfasswgslehre. The notion of constituent power represents sovereignty as a concrete manifestation of the will. According to Schmitt.Carl Schmitt on Sovereignty and Constituent Power In spite of this methodological demarcation of fields that excludes a consideration of sovereignty from constitutional theory. the Weimar constitution. when a constitution is destroyed and another is born. Bonald and Donoso Cortes and. the constituent power of the monarch. It does not immediately bring the political to mind. As Schmitt's exposition unfolds. sovereignty shows up under the guise of constituent power. Its existence is dependent on concrete historical circumstances. Most importantly. towards a new conception of sovereignty. is the political and existential key to Schmitt's constitutional theory. A constitution does not just fall from heaven ready-made. But. it is subservient to the contingent political decisions which bring it to life. It is inconceivable to think that Schmitt would grant his allegiance to the views of de Maistre. explores the genesis of the Weimar constitution. that is. as was indicated above. which marks his shift away from hard decisionism and personalism. therefore.

they considered that sovereignty rested abstractly on the constitution itself." During the revolutionary events of 1918. the monarchical principle is the pivotal concept of Fridrich Julius Stahl's political philosophy. Supra note 5 at 56. Monarchs are not perceived as subjects of their own will. But in monarchical Germany. This action by the German people implied the destruction of the German constitution of 1871 and the abrogation of the pouvoir constituantof the monarch. In what follows I will examine Schmitt's account of the genesis of the Weimar constitution. HeinOnline -. at 54. Jellinek and Kelsen. The genesis of the Weimar constitution has to be understood in the context of Germany's constitutional monarchy and the Revolution that abrogates it in November. During the German Revolution of 1918. who emphasized the constitutional aspects of Germany's constitutional monarchy. this question resurfaces. J. 33. Schmitt notes how the monarchical principle has been watered down by constitutionalist thinking. the German people assumed. They denied the possibility of identifying and designating a subject of state sovereignty. & Jurisprudence 196 1997 . according to Schmitt. Ibid. See Studien zur Staatslehre des monarchischen Prinzipes. The will of the state dissolves into parliamentary chatter. 30. 31. and during situations of similar conflictive and critical nature. his personal will was still meaningful and could not be traced back to Parliament " '32 Under the influence of functionalist liberalism it was possible theoretically to avoid the issue of sovereignty and constituent power. the German constitutional monarchy that survived until 1918 left the constituent power in the hands of the monarch. supra note 14 at 80. He thus distances himself from liberal constitutionalism which relegates the question concerning the subject of constituent power to the sidelines together with the question of sovereignty. forcibly surpassing the dilatory compromises that had veiled it. 1918. According to Kaufmann. in cases of conflict. and here Schmitt follows Friedrich Julius Stahl's interpretation. Ibid. and relativized its political. "it was possible to observe.Cristi brings to light and identifies this truly unique political subject. L. a constitution "is based either on the monarchical or on the democratic principle"" Any attempt to avoid this political alternative by means of normativist fictions-the "sovereignty of the constitution:' for instance-will miss "the fundamental political 31 question concerning constituent power. I will then analyze certain aspects of the notion of constituent power that show its kinship with sovereignty. "the constitutional monarch still retained real power. who was the subject of state power and the representative of political unity able to decide: the monarch " '33 According to Schmitt. Schmitt differs from jurists like Laband. According to Schmitt. Schmitt writes. Ibid. in this case monarchical. aspects. In accord with normativism. But in practice. This does not solve the issue but only postpones what Schmitt foresees as an unavoidable decision. at 289. the exercise of constituent power.10 Can. It is this transition from monarchical to democratic legitimacy and the reconstruction of this fundamental event that feeds and determines in large measure the historical matrix of Schmitt's political and juridical thought. This was manifested by the democratic election of a National Assembly commissioned to write a new constitution. 32.

The task embraced by Schmitt was to bring to light the political element that hid behind the thick normativist veil spread over the Weimar constitution by liberalism. It was not. 1918.:'" No other limitations can determine it other than those that it imposes on itself. elected democratically on February 6. See Pasquale Pasquino. ]bid. according to Schmitt. '' Subsequently. 1988) at 379. Duncker & Humblot. "The special circumstances of a Constituent Assembly which meets after the previous constitutional laws have been abolished may be more properly designated as a sovereign dictatorship. The National Constituent Assembly. the subject of constituent power but merely its agent. representing the councils of workers and soldiers. 58. at 59. "in every revolution a [provisional] government is formed until a new decision concerning the subject of constituent power is reached. the councils of workers and soldiers transferred their power to this Constituent Assembly which assumed the exercise of constituent power. It does not have competencies or a limited range of attributions. ended the sovereign dictatorship of the German Constituent Assembly. Schmitt defines it as "the political will whose power 34. Ibid. Compexo OppositonmL OberCarl Sclunitt (Bedim 37. This Council summoned an Assembly of Representatives. As Schmitt notes. He also notes how prewar liberal constitutionalism. Such an Assembly is a sovereign dictatorship. 1919. the real representative of political unity. the mark of a dictatorship. This is the historical context of Schmitt's decision to bring up and employ the notion of constituent power. ed. which at any moment may cancel the authority of its commissars by means of a political act: ' ' The promulgation of the Weimar constitution on August 19. according to Schmitt. & Jurisprudence 197 1997 . Germany adopted then for the first time. 35. HeinOnline -. "but it always acts in its name and commissioned by the people. This assembly decided to convoke a Constituent National Assembly. While it exercised its commission. at 60. J.Carl Schmitt on Sovereignty and Constituent Power After defeat in World War I and the Kaiser's abdication. they formed a provisional government. observes Schmitt. but qua dictatorship it conducts its business only by mandate. It was in such situations that the notion of constituent power would expose the fundamental political dilemma: democratic or monarchical sovereignty. which first met in Weimar on February 6. This is..10 Can. Ibid. It is not the sovereign L. exercised by a Council of the People's Commissars. 1919. "Die Lehre yom 'pouvoir constituant' bei Emmanuel SieyLs und Carl Schmitt" in Helmut Quaritsch. at 57. it had no legal or constitutional limitations. 1919. the democratic doctrine of the constituent power of the people. formulated the content of the political decision of the German people by means of constitutional proposals which would define its exercise. the social democrats proclaimed the Republic and on November 10. Schmitt knew that cases of conflict and constitutional emergencies would force the recognition of the real subject of state power. Those councils constituted only a provisional government. "seen as a method of formalist evasion of the constituent power of the monarch' 3 was incapable of registering this fact. and therefore cannot be interpreted as a commissarial dictatorship limited by pre-existing legislation.

at 75. Whether its subject be the monarch. at 82). continues to exist outside and above the constitution. Siey~s had lifted that notion above and beyond positive juridical forms. Shifting away from what he had maintained in his PolitischeTheologie. Schmitt. Constituent power qua sovereign transcends the constitution.' This is a feature it shares with sovereignty. A constitution can only rest on a concrete sovereign will and not on an abstract norm. the people or a strong group within the state 9. an exploration of the putschist possibilities of revolutionary conservatism. different from the monarch and the people. on the part of Schmitt. Only a "firm organization" (ibid. Only when the decision of a sovereign people has been expressed may one regulate its formulation and execution. 40. as was the case in the Middle Ages. & Jurisprudence 198 1997 .198 Cristl or authority is capable of adopting the concrete global decision on the mode and form of political existence " '3 This definition reveals Schmitt's rejection of juridical nonnativism. cannot be subject of constituent power. "there is no definitive renunciation to invoking the will of the people. The sovereign constituent will. In 1919. for whose true and unfalsified expression one ought first to create the preconditions" (ibid. a naturanaturans. IV The discussion in the Verfassungslehreon the subject of pouvoir constituant and its activity confirms its close conceptual kinship with sovereignty. Schmitt is not thinking of a quantitative or electoral minority. in his Verfassungslehre. Ibid. At the same time. In no way is the constituent will exhausted within the positive constitution itself. Germany had come to terms with the French Revolution and Sieybs' conception of the people as the subject of constituent power. but surely they fit this scheme of things. See Renato Cristi. designates the people as a legitimate subject of constituent power and rejects the monarchical conception that legitimized the German constitution of 1871. Schmitt visualizes a circle of powerful families. It is after all the decision of the people that gave birth to the Weimar constitution. the manner of its activity cannot be prescribed constitutionally. A minority may also be a subject of constituent power. the activity of constituent power. 39.10 Can. Schmitt admits that the theoretical construction that attributes constituent power to a minority "is not yet clear. Such a minority. A unified and indivisible existential dimension grounds the other powers of the state and it cannot be assimilated by or coordinated with them. at 81) may be in the position of generating a constitution by means of its constituent power. One should also say that to contemplate the possibility of this third kind of constituent power implies. Schmitt underscores the foundational nature of constituent activity. constituent power stands "outside and above" the constitution. Schmitt conceives of a third possible subject of constituent power. such as the soviets in the Soviet Union or the fiasco in Italy. The grounds of a constitution are existential. Again. and a State where this happens "has an aristocratic or oligarchic form of government" (supra note 5 at 81). configured juridically as constituent power. taken to formalist extremes by neo-Kantians like Kelsen. J. or political party or faction. "La noci6n de Poder constituyente en Carl Schmitt y ]a gdnesis de ]a Constituci6n chilena de 1980" (1993) 24 Revista Chilena de Derecho 229. He does not allude to a nation's armed forces.approximates it to sovereignty. 38. which at one point Schmitt describes as a generating source. In cases like this. or a corporate order. HeinOnline -. In agreement with this view. L. Supra note 5 at 242." An ambiguity encumbers the notion of a minority or an aristocratic group qua subject of constituent power.

may the substance of power. and not endowed primafaciewith permanent authority. at 94. not only the constitution and the organs of constitutional legislation. may be born. In the case of sovereign monarchs. But this did not imply a renunciation of their sovereignty. Its activity escapes constitutional bounds. Even if its power and plastic energy cannot be extinguished and may embody an infinite variety of forms.Carl Schmitt on Sovereignty and Constituent Power At a certain point. & Jurisprudence 199 1997 . be destroyed. belongs to political theology. the people exercises its constituent power by means of any manifestation which conveys its express will. but alongside and above it the pouvoir constituant continues to exist. Constituent power cannot be destroyed. Schmitt. In no case. 42. I see here an attempt on the part of Schmitt to distance himself from his earlier view which subsumed constitutional discussions under politicotheological considerations. What happened in Germany. the unformed (formIos) form of all forms. In a case like this. HeinOnline -. J. which was in effect destroyed by the 1918 Revolution. precedes and rises legibus solutus above all positive constitutional normativity. however. not even in the most extreme political situation. disengages this metaphysical interpretation from constitutional theory proper. L. Schmitt analyzes its activity. In democratic polities. Two radical situations envisaged by Schmitt confirm the tie between constituent power and sovereignty. just as any measure transcends what is measured by it. the people is not an organized subject of decision.constituent power was to remain in a state of nature. This is the reason for its weakness and may explain why its actual will may be falsified. their activity could include the unilateral granting of constitutional charters. From this matrix ever new forms were bound to arise. It is not exhausted by its exercise and "retains the ability to persevere in its existence. constituent power itself. it is possible that a constitution may be destroyed (Verfasswgsvenzichtung).e. like sovereign power. Accordingly. at 92. At times. i. Constituent power. During revolutionary situations. constituent power was the ultimate ungenerated source of all forms. but also the species of constituent power may be destroyed. According to Schmitt. suffer alterations and eventually die. In the first place. That interpretation. After considering the issue of the subject of constituent power. prudence dictated that monarchs reach agreements with the representatives of special interests. it perseveres as the extra-constitutional ground of constitutions and constitutional laws. the destruction affects the constitution and the specific form attained by the constituent power that sustains it. changed or altered in any way. As natura naturans. Siey~s had tried to bestow on constituent power a metaphysical character. he admits. ibid. Constituent activity persists autonomously and independently from any positive constitutional legislation. as an accident supported by constituent power.-2 Schmitt considers the case of the German constitution of 1871.10 Can." The positive constitution. This is an indication of sovereignty. One should stress that it is not the constituent power itself that perishes. was that one subject of constituent power was replaced by 41. the people as such is not a firm and organized entity. ibid.

such cases confirm constitutional validity. J. particular constitutional norms are violated in order to safeguard the substance of a constitution.Cristi another subject: the constituent power of the people substituted that of the monarch. and not only monarchy. faced with a democratic revolution that was willing to appeal to the constituent power of the people.10 Can. Of themselves. Destruction and abrogation of a constitution. the purpose of the liberal ideal is to subject the power of the state to the rule of law and expel sovereignty from its domain. An absolute form of government." These sovereign actions set in motion the activity of constituent power in the daily ordeal of constitutional business. which rises from an act of pouvoir constituantderives from it and does not itself bear within it "the continuity of the political unity" '43 The latter task falls on the pouvoirconstituant. Ibid. Ibid. A constitution. 44. On the contrary. The liberal rule of law component ought to neutralize the political democratic component and vice versa. as an expression of political absolutism.the ultimate foundation of a constitution. such violations do not imply the destruction or suppression of the constitution as a whole. should not be regarded as proof of his democratic conversion. L. But "these acts of inevitable sovereignty"' are better justified when they 43. Ibid. the legal order as a whole. By contrast. Schmitt refers to the abrogation of a constitution (Verfassungsbeseitigung). and thus relativize. What these sit' uations demonstrate is the "superiority of the existential over mere nonnativity. without misgivings. the two most drastic manifestations of constituent power. Acts of sovereignty will inevitably occur. 46. 4 They force the recognition of sovereignty. Schmitt attempts to disarm it by acknowledging and revitalizing an old adversary-the liberal ideal of the rule of law. The political and the state cannot be simply erased by legal fabrications and methods of avoidance. namely democracy. Second. In this case a constitution is rescinded but there is no destruction of the pouvoir constituant that sustained it. On the contrary. when particular constitutional norms are violated. HeinOnline -. & Jurisprudence 200 1997 . According to Schmitt. the sovereign is whoever has the faculty to violate. this ideal of absolute normativity constitutes a tenuous fiction. confirm its conceptual kinship with the notion of sovereignty. In his Verfassungslehre. He now feels that he too can point out. Schmitt's Verfassungslehreis a careful balancing act. Ibid. however. Those violations are only "measures!' and not constitutional norms. above the law. This. what he calls "apocryphal acts of sovereignty. at 93. For Schmitt. Schmitt is willing to concede what he earlier rejected in his PolitischeTheologie. monarchical or democratic. They are justified by particular exceptional and abnormal transitory situations. The recognition of the democratic political form and its constituent power has a price which Schmitt is eager to exact-the reintroduction of the theme of sovereignty as a legitimate theme for constitutional discussion. According to Schmitt. for instance. Sovereignty manifests itself when the legal order is violated. implies a sovereign prince or a sovereign people who stand legibus solutus. at 108. at 107. 45. one which tries to offset opposed principles. They take place.

On the contrary. 1992) at 306.he comes to accept and recognizes the pouvoir constituantof the people only because he has found a way to disarm it. HeinOnline -. Schmitt denies these weapons to democracy. Supra note 5 at 80. but with a difference. 48. Rejection of an imperative mandate allowed the assembled representatives to assume. Le politiqueentre spocu.und Sozialphilosophie 510. See Stefan Breuer. like Siey~s. in his Verfassungslehre. "Nationalstaat und pouvoir constituant bei Siey s und Carl Schmitt" (1984) 70 Archly ffir Rechts. This was supported by his metaphysical conception of thepouvoir constituantas an inexhaustible naturanaturans. 7 Thus. For comments and suggestions Iowe thanks to Heiner Bielefeldt. weapons that a political theological conception of sovereignty can place at one's disposal. 50. 49. he tied the doctrine of the pouvoir constituant of the people to the antidemocratic principle of representation. See Jean-Frangois Kervdgan. who in turn were not to act as popular commissars or agents. "' According to Siey~s. with autonomy and independence. lation etpositivit6 (Paris: Presses Universitaires de France. Die Diktatur. In his Verfassungslehre.distinguishes the "positive doctrine" from the "metaphysics" of poti'oir constituant. This paper was read at a session of the 17th IVR World Congress held in Bologna in 1995.10 Can. Siey~s fused sovereignty and representation together. The delegation of sovereignty was only temporary and could legitimately be reclaimed at any time.Carl Schmitt on Sovereignty and Constituent Power are seen as grounded on the constituent power of the people. J. never leaves the state of nature. he intends to make sure that once in power democracy can be more easily restrained than enhanced. what Sieybs considered to be the ultimate expression of sovereignty-the exercise of constituent power. Schmitt. 51."" which ascertains a "completely systematic and methodical analogy" with Spinoza's view on the relation between . John McCormick and William Scheuerman. I am particularly indebted to David Dyzenhaus for his commentaries and editorial help. acknowledged Siey~s. the sovereignty of the people was to be delegated to their elected representatives. In Hobbesian fashion. & Jurisprudence 201 1997 . One should note that Schmitt's aversion to democracy is not superseded by his recognition of democratic sovereignty in the Verfassungslehre. The people.5' 47. CarlSldit.supra note 3 at 142.The latter belongs to the "doctrine of political theology.By contrast.Conscious of the radical naturanaturansand naturanaturata. L. This was facilitated by a travel grant from Vilfrid Laurier University. Hegel. Supra note 5 at 80.

10 Can. J. & Jurisprudence 202 1997 . L.HeinOnline -.