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"Carl Schmitt on Liberalism. Complexio Oppositonm. which marks the halcyon days of the Weimar republic. "Der Begriff des Politischen als SchlUssel zum Staatsrechtlichen Werk Carl Schmitts" in Helmut Quaritsch. bidk at 20. Canadian Journal of Law and Jurisprudence Vol. Beyond this. I compare this radical view to the 1. 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. & Jurisprudence 189 1997 . Democracy and Catholicism" (1993) 14 Hist.1 (January 1997) HeinOnline -. 1928) at 23. In another place I have examined this shift 4 Here I would like to extend with respect to the notions of liberalism and democracy. The first section of this essay examines the uninhibited view of sovereignty Schmitt develops in his Politische Theologie.". Die Diktaur ion den Anfdngen des modernen Soureranitiitsgedankens bis zmproletarischenKlassenkampf(Munich & Leipzig: Duancker & Humblot.Carl Schmitt on Sovereignty and Constituent Power Renato Cristi Schmitt's Verfasswgslehre stands as perhaps the most systematic and least circumstantial of his works. of Pol. 2. No. Thought 281 at 282-300.'" The whole system of legality is thus relativized by a power that stands outside and above it. Carl Schmitt. leading at one point to an unbounded and shameless opportunism. Recently. Politische Theologie Vier Kapitel zur Lehre von der Sourerdnitift (Munich & Leipzig: Duncker & Humblot. J. at 83. See Ernst-Wolfgang Bfckenfirde. While his production is marked. the state has "the monopoly of the ultimate decision. L. bid. The decision Schmitt has in mind is an absolute decision. 1988) at 287. but as the monopoly of decision. where he flaunts his allegiance to the Catholic counterrevolution. a decision "created out of nothingness. 4. One of the arguments presented by Bckenfdrde in support of his thesis has Schmitt's definition of sovereignty and the state as its locus." This means that the essence of sovereignty. by an extraordinary sensitivity toward his own concrete situation. 3. ed.10 Can. See Carl Schmitt.is the ability to lift its subject above the legally constituted order. 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 Verfassungslehre. on the whole. X. this particular work seems to rise above the political fray. In the second section. 1922) at 20. reflecting possibly the mood of 1928.. which he defines "not as the monopoly of domination or coercion. See Renato Cristi. Ober CarlSclmitt (Berlin: Duncker & Humblot. Bickenfdrde has connected the Verfassungslehre to the eminently partisan notion of sovereignty put forth by Schmitt in his Poltische Theologie (1922). My concern is that an important shift marks Schmitt's work during these years. my thesis to this aspect of Schmitt's work. a view which identifies it with the monarchical principle. According to Schmitt's PolitischeTheologie. I do not wish to dispute B6ckenfdrde's contention that sovereignty is the key notion of Schmitt's conception of public law.
Finally. does not directly discuss the issue of sovereignty in this context. I In his PolitischeTheologie. This formulation leaves out the crucial issue of its concrete application. Carl Schmitt. be given any recognition in a liberal constitution. A thick veil covers it. Schmitt attempts to define the notion of sovereignty. 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. Schmitt opposes this view from the very start. & Jurisprudence 190 1997 . therefore. the theory that defines the Weimar constitution. the fourth section examines both the subject and the activity of constituent power to confirm its conceptual kinship with sovereignty. Verfassungslehre(Berlin: Duncker & Humblot. Schmitt. namely who decides in cases of extreme conflict. He observes that sovereignty no longer plays a role in the discussion ofjurists and legal philosophers. ought not. 6. L. His views are determined by the struggle for supremacy between the prince and the estates. Should the 5. a veil that he is determined to pierce in order to expose its presence in political and legal affairs and documents. Sovereignty. HeinOnline -. In this section I show how Schmitt surmounts this liberal view by invoking the notion of constituent power orpouvoirconstituant. 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. 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. avoids the issue of politics in general and sovereignty in particular. ' The ideal liberal constitution is defined exclusively in terms of the rule of law. J.Cristi apparently more balanced conception offered in his Verfassungslehre.10 Can. He tries to circumvent it because the constitutional theory of liberalism. at 13.Sovereignty is here redefined by superseding its identification with the monarchical principle. an essentially political notion. power resides in the legal system itself and not in any personal authority representing the state. "It is characteristic of liberal constitutionalism to ignore the sovereign. According to rule of law liberalism. Supra note 1 at 12. Ibid. however. By refusing to develop a political theological interpretation of democracy and adopting a view on representation similar to that of Siey~s. According to Schmitt. both monarchy and democracy can be interpreted as political forms that convey constituent activity. Sovereignty attains visibility only during exceptional situations. 7. As a result. when public order and security (le salutpublic) are in jeopardy. whether this sovereign be the monarch or the people. 1965) at 244. Schmitt intends to take away from the pouvoir constituantof the people the fruits of sovereignty.The third section discusses Schmitt's employment of constituent power as a surrogate for sovereignty.
. Schmitt refers the matter to what he had written earlier on the state of exception. Then he examines article 48 of the Weimar constitution." 14. bid. 15. which bestows on the Reichsprdsidentthe faculty to decide on the exception. 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. Schmitt explicitly associates article 48 with article 14 of the French Charte of June 4. 9. This is what he refers to as "political theology". Erich Kaufmann maintains that the monarchical principle. defined as "rautorit~prexistant du roi. the real question is who adjudicates and who has the power to decide.'" 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. the natural lav theorists of the seventeenth century. the novelty of Bodin's view consists in his ability "to incorporate the decision into the concept of sovereignty. 12. In granting the Reicisprdsidentthis "unlimited absolute power." The question about sovereignty reduces to the question about its subject.supra note 3 at 21-24.supranote 1. J. Studien zur Staatslehredes monarhischen Prinzipes (Leipzig: Oscar Brandstetter. In his PolitischeTheologie. cution des lois et la sfAretJ de l'Jat. supirieuret wtsrieura I'acteconstitutionnelF was first introduced by the Chante of 1814." This is obviously a misprint In DieDiktatur. also understand sovereignty in terms of who decides on the state of exception.Ibid. See Die Diktatur.Ibid. 1906) at 38. about who decides. etfaitles rtglements et ordonnancesnIcessairespourrex6.10 Can. Ibid at 15. Schmitt refers to "the Charte of 1815.Schmitt takes Hobbes and Pufendorf to be supporters of "scientific natural law (wissenscha. supranote Iat 18. 1814." Schmitt also notices that during the sixteenth and seventeenth centuries.filicheNaturrecht)" and opponents of the "natural law of justice (Gerechtigkeitsnaturrecht)" tradition.d6clare la guerre. "Who is competent when there is no clear provision of competence"'" in other words. a theology that embraces the philosophical conception of God as the sole architect of the universe determines the notion of sovereignty. After Bodin."'2 this article addresses the question of sovereignty precisely as Schmitt would define it.il coanmude lesfarces de terreet mer. est urgente..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. L.supra note 3 at 193. at 18. at 14. The modem prince is a transposition of the Cartesian God to the political world. but only that a decision be effectively made. & Jurisprudence 191 1997 . 13. In fact. First he considers the so-called monarchical principle. Sovereignty falls into the hands of the Reichspriisidentfor he is the one who decides on the exception. 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. See Die Diktatur. Supranote 1 at 61. who decides the extreme case? Two related illustrations offered by Schmitt prove most revealing. but that duty expires "si la ndcessitg 8 In such cases everything reverts to the decision of the prince. particularly Hobbes and Pufendorf." According to Schmitt. HeinOnline -. 11." the document that institutes the monarchical principle during the Restoration period and brings the true notion of sovereignty back to life. For them the issue is not the content of a decision. In his DieDiktatur. he correctly identifies it as the Charte of 1814 and transcribes its article 14: "Le Roi est le chefsuprrnede Itat. at 16. Ib 10.supranote 3 at 22-24.
23 Schmitt agrees with Maistre and Donoso Cort6s that absolute monarchs are the proper subjects of sovereignty. Die Diktatur. Schmitt sees no possible compromise with liberalism. which ties sovereignty to the exception. In 1922. 23. at 65-66. His political views are still tied to a decisionist and personalist view of politics. Both in Die Diktatur and in Politische Theologie he dismisses the people as a legitimate and fitting subject of sovereignty. Caught within a rationalist outlook. He does not fully perceive that democracy and the notion that sustains it. There is no royalism any more. at 62."' 6 Schmitt's conceptual and historical analyses. at 63. '20 Political theology has become unthinkable within a democratic context. the slayer of sovereignty. J.facit legem. The Leviathan is the "colossal person" postulated as the "ultimate concrete deciding instance." But Hobbes does not go this far.10 Can. Schmitt evokes the counterrevolutionary thought of Juan Donoso Cortes. created out of nothingness. lead conclusively to one result-only an absolute monarch can be the proper subject of sovereignty. because there are no more kings.Schmitt writes: "the decision on which a law is based is. Donoso advocates dictatorship. In Die Diktatur. Inspired by their counterrevolutionary conservatism. Hobbes arrives at a similar result. 18. They are based on a decision concerning the interest of the state and the state's foremost interest is that a decision be made. Ibid. despite his nominalism and his attachment to science and a mechanistic view of nature. 21. Schmitt 16. In a democratic setting "the theistic and the deistic idea of God is unintelligible"' 9 Democracy in America. The "political metaphysics" of democracy cannot claim political theological status. 20."I' In view of this exhaustion and extinction of legitimacy. as Tocqueville saw it. from similar decisionist premises-auctoritas. at 23. reveals the same politico-theological conception. Ibid. According to Schmitt. his memory still fresh with the revolutionary events in Germany. 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. Hobbes understands the power of the sovereign to rest on a more or less tacit agreement of the people. L. Ibid. Ibid. diverge substantially from liberalism. still maintained that the voice of the people is the voice of God. & Jurisprudence 192 1997 . Donoso realizes in 1848 that "the epoch of royalism is over. With Rousseau things change substantially. at 61 17. Like his Catholic counterrevolutionary mentors. bringing out its decisionist and personalist elements. Ibid. 19.Cristi Hobbes. non veritas. the unity displayed by the people loses "this decisionist character. namely popular sovereignty. Today a political philosopher like Kelsen can only "conceive of democracy as the expression of a relativist and impersonal scientism. Only de Maistre is able to shake off that rationalist residue and radically negate the sovereignty of the people. HeinOnline -. at 62-63." 8 and no democratic arrangement will be able to claim genuine sovereignty. normatively speaking. supra note 3 at 23. Ibid. Ibid. Laws are essentially commands. 22.
i.A sovereign dictator appeals to a power that even if not constituted ought to be seen as the "foundation" of a constitution. J.. The constitutional theory of liberalism. therefore. not to the one that actually exists" (DieDikfawr. what lies above and beyond a constitutional system is not purely a Machfrage. which is essentially related to sovereignty. While their function was the preservation of the constitutional order. 1995) at 112.e. according to Schmitt. rol. Sovereignty. the principle of the rule of law. at 137) which allows one to transpose the limits of a legal system without crossing over the limits of the juridical. As Schmitt admits. dated December 1927. This abrogation of the existing order translates into the adoption of a revolutionary stance whereby sovereign dictators place themselves above the constitution. HeinOnline -.as an appropriate use of functional rationality:' it seems to me that Schmitt here promotes the notion of sovereign dictatorship by upholding its juridical value. This was the absolute decision on which stood a now relativized positive constitution. The ideal liberal constitution is defined exclusively in terms of the rule of law. In it he distinguishes between the political element of a constitution and its properly liberal element. The idea of absolute monarchy. McCormick. Despite the overtly liberal framework of the Weimar constitution. The genesis of a constitution is the locus where sovereignty is manifested with greater clarity. completely "devoid ofjuridical value" (ibid. the whole endeavour of a liberal constitution aims at marking off a sanctuary for individual freedom and disavowing the political disposition of the state. In 1919. Weimar liberalism was not self-sufficient and self-generated. one thought to be the true constitution. an essentially political notion. "This is the meaning ofthepouvoirconstituant"(ibid. L. as the sole subject of 24.at 137). its aim is strictly to confine the political prerogatives claimed by the state. Contrary to McCormick. See John P. a sovereign people had decided to confirm its national unity and define the mode of its political existence by means of a constitution. The reason why Schmitt needs to circumvent its discussion is brought forth in the preface to that work.Carl Schmitt on Sovereignty and Constituent Power contemplates but one alternative in 1922-a sovereign dictatorship as an effective surrogate for the monarchical principle. & Jurisprudence 193 1997 . supra note 3 at 137). but presupposed a political decision in its favour. "The Dilemmas of Dictatorship: Carl Schmitt and Constitutional Emergency Powers" in Proceedingsof the 17th IVR orld Congress. The constitution did not descend from heaven ready-made. even though its thoroughly systematic argument presupposes it. But.Schmitt develops the notion of sovereign dictatorship based on the traditional role played by Roman commissarial dictators.-" II Schmitt's Verfassungslehre does not directly discuss the notion of sovereignty. the aim of a sovereign dictator is the elimination of"the whole existing order" and the generation of a new constitution. "An apptal is thus made to the constitution that will be enacted. the theory that determines the spirit of the Weimar constitution and absorbs Schmitt's attention in this work. Schmitt's political sensors have no difficulty in finding the traces of sovereignty in its make-up. Schmitt's sovereign dictator borrows from the juridical status that attaches to commissarial dictators. It would appear that this is a purely political move. VI (Bologna: Cooperativa Libraria Universitaria Editrici. ought not be given any recognition in a liberal constitution..10 Can. In his Die Dilktatur. Sovereignty could not be ascribed to a legal system itself. Schmitt saw here an opening to reintroduce the theme of sovereignty. who claims that the aim of Die Diktaturis to present "temporary dictatorship. but owed its existence to a decision of the German people. tries to skirt the political element as such.
In fact. occasionally and with tacit tolerance.'" The exercise of apocryphal acts of sovereignty described by Schmitt takes place at the margins of normal constitutional life. he had envisaged absolute monarchy as the only possible embodiment of sovereignty." not to constitutional theory. He sees now the need to adopt an entente with liberalism. had perished in 1918. But sovereignty. In his Verfassungslehre. 28. a reading that does not reject sovereignty offhand. It is this rearticulation of liberal and political elements that determines the argumentative structure of the Verfassungslehre. at xii. This meant a shift in his conception of sovereignty and a weakening of its personalist and hard decisionist aspects. he came to realize that democracy was a political form of government that could also serve as a vehicle for sovereignty. 26. supported by the sovereign pouvoir constituantof the people. 27. In 1923. Second. The Weimar constitution was a case in point. Schmitt shifts from an intransigent adherence to the conservative revolutionary themes he shared with de Maistre and Donoso Cort6s to a more flexible posture. but absolute democracy.Schmitt appears to have modified his initial views on liberalism and democracy. had replaced it. This implies a shift towards acceptance of a conservative reading of liberalism. wanted to prove that Weimar liberalism was in fact an instance of such a compromise. Influenced by the views of the Catholic counterrevolution. 1 discuss this issue in "Carl Schmitt on Liberalism.26 These two considerations ease the way for a political reading of the Weimar constitution. it was easy to expose the view held by liberals that politics and sovereignty had been decisively expelled from human affairs. whether it be expressed monarchically or democratically.10 Can. Schmitt. J. which are characteristically performed by non-sovereign state officials or bodies who. In his Verfassungslehre. In practice. make sovereign decisions. with the publication of his Parlamentarismus.' The notion of democracy did not include liberal relativism and the liberal distaste for the political. Alongside its liberal elements Schmitt now incorporates a political dimension. Schmitt's constant preference for a strong State was not challenged by this acceptance of monarchy and democracy as legitimate forms of government. Democracy and Catholicism:' supra note 4. HeinOnline -. L. Ibid. Supra note 5 at xii. 25. An expanded view of sovereignty permits the concurrent adoption of the liberal rule of law. a discussion of sovereignty belongs formally to the "theory of sovereignty" (Lehre von derSouverdnitdt) or a "general theory of the state. "What has suffered the most under this fiction and this method of avoidance is the concept of sovereignty. in his Verfassungslehre. he recognizes that democracy may be stronger and more decisive than monarchy. supra note 5 at 236. As he himself acknowledges. The mistake of rule of law liberalism lies in its outright denial of sovereignty. It manifests the marginal presence assigned to the notion of sovereignty in the Verfassungslehre. always finds channels for its manifestation. a compromise had been struck between the ideals sponsored by liberals and the political decisions needed to make those ideals effective. apocryphal acts of sovereignty are exercised. never fully repressed. First. & Jurisprudence 194 1997 . Schmitt saw the need to modify the personalist and hard decisionist conception of sovereignty he held earlier in his Politische Theologie.Cristi sovereignty.
He observes how the destruction of the German constitution of 1871 is attended by the abrogation of the pouvoirconstituantthat sustained it. bidbat 53. & Jurisprudence 195 1997 . According to Schmitt. 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.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 notion of constituent power represents sovereignty as a concrete manifestation of the will. Most importantly. 1919. Without explicit acknowledgment. The genesis of the German constitution of August 11. But this is precisely what he does in his Verfasswgslehre. In these circumstances. at the same time. is the political and existential key to Schmitt's constitutional theory. the condition for Schmitt's employment of the notion of constituent power as a surrogate for sovereignty. it is subservient to the contingent political decisions which bring it to life. but it adequately supplants the notion of sovereignty.10 Can. HeinOnline -. Sovereignty qua constituent power comes into view most clearly at the moment when a constitution is generated. According to Schmitt. It does not immediately bring the political to mind. J. Bonald and Donoso Cortes and. that is. As Schmitt's exposition unfolds. sovereignty becomes visible only during exceptional circumstances. A central portion of his Verfassungslehre. sovereignty shows up under the guise of constituent power. My aim is to demonstrate that the acceptance of this notion certifies the presence of sovereignty in this treatise. the constituent power of the monarch. Its aim is to leave the notion of sovereignty exposed. A constitution does not just fall from heaven ready-made. It is the best way to bring both monarchy and democracy under one generic notion. he employs the notion of constituent power (pouvoir constituant or verfassungsgebende Gewalt) as its surrogate. Its visibility rises to prominence. which marks his shift away from hard decisionism and personalism. Its existence is dependent on concrete historical circumstances. therefore. Constituent power functions as a legal notion and falls within the range of interest of public law. Hard decisionism and personalism meant that only monarchs could be genuine subjects of sovereignty. now animated by the constituent power of the German people. L. favour the sovereignty to the people. this coincides with the revolutionary genesis of the new constitution. Schmitt 29. the Weimar constitution. as was indicated above. It is inconceivable to think that Schmitt would grant his allegiance to the views of de Maistre. explores the genesis of the Weimar constitution. it becomes clear that constituent power is indeed a political notion. is a shift in his conception of the latter. Schmitt finds a way to reintroduce it at the very core of the Verfassungslehre. when a constitution is destroyed and another is born. towards a new conception of sovereignty. Im[ I will now train my attention on what Schmitt has to say about the notion of constituent power in his Verfasswgslehre. But.
The will of the state dissolves into parliamentary chatter. 30. "the constitutional monarch still retained real power. the monarchical principle is the pivotal concept of Fridrich Julius Stahl's political philosophy. This action by the German people implied the destruction of the German constitution of 1871 and the abrogation of the pouvoir constituantof the monarch. According to Kaufmann. the exercise of constituent power. Schmitt notes how the monarchical principle has been watered down by constitutionalist thinking. at 289. See Studien zur Staatslehre des monarchischen Prinzipes. 31. the German people assumed." During the revolutionary events of 1918.10 Can. Jellinek and Kelsen. 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. aspects. at 54. "it was possible to observe. I will then analyze certain aspects of the notion of constituent power that show its kinship with sovereignty. But in monarchical Germany. 33. Schmitt writes. Ibid. and during situations of similar conflictive and critical nature. Ibid. Schmitt differs from jurists like Laband. During the German Revolution of 1918. 1918. 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. supra note 14 at 80. and here Schmitt follows Friedrich Julius Stahl's interpretation. They denied the possibility of identifying and designating a subject of state sovereignty. according to Schmitt. According to Schmitt. who was the subject of state power and the representative of political unity able to decide: the monarch " '33 According to Schmitt. the German constitutional monarchy that survived until 1918 left the constituent power in the hands of the monarch. Monarchs are not perceived as subjects of their own will. this question resurfaces. J. 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. forcibly surpassing the dilatory compromises that had veiled it. in cases of conflict. 32. This was manifested by the democratic election of a National Assembly commissioned to write a new constitution. & Jurisprudence 196 1997 . in this case monarchical. L. who emphasized the constitutional aspects of Germany's constitutional monarchy. Supra note 5 at 56.Cristi brings to light and identifies this truly unique political subject. and relativized its political. In what follows I will examine Schmitt's account of the genesis of the Weimar constitution. they considered that sovereignty rested abstractly on the constitution itself. 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. HeinOnline -. But in practice. 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. This does not solve the issue but only postpones what Schmitt foresees as an unavoidable decision. Ibid. In accord with normativism.
but qua dictatorship it conducts its business only by mandate. ]bid. L. This is. they formed a provisional government. He also notes how prewar liberal constitutionalism. It was in such situations that the notion of constituent power would expose the fundamental political dilemma: democratic or monarchical sovereignty. at 60. 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. Ibid. While it exercised its commission.10 Can. exercised by a Council of the People's Commissars. elected democratically on February 6. formulated the content of the political decision of the German people by means of constitutional proposals which would define its exercise. This Council summoned an Assembly of Representatives. J. "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. Those councils constituted only a provisional government. Ibid. the social democrats proclaimed the Republic and on November 10. observes Schmitt. 1919. It was not. "seen as a method of formalist evasion of the constituent power of the monarch' 3 was incapable of registering this fact. "Die Lehre yom 'pouvoir constituant' bei Emmanuel SieyLs und Carl Schmitt" in Helmut Quaritsch. at 57. It is not the sovereign itself. 36. "but it always acts in its name and commissioned by the people. the mark of a dictatorship. Schmitt knew that cases of conflict and constitutional emergencies would force the recognition of the real subject of state power. ended the sovereign dictatorship of the German Constituent Assembly. representing the councils of workers and soldiers. Duncker & Humblot. See Pasquale Pasquino. The National Constituent Assembly. Compexo OppositonmL OberCarl Sclunitt (Bedim 37. 1919. 35. Such an Assembly is a sovereign dictatorship. it had no legal or constitutional limitations. As Schmitt notes.at 58. 1919. This assembly decided to convoke a Constituent National Assembly. at 59.. 1988) at 379. HeinOnline -.:'" No other limitations can determine it other than those that it imposes on itself. This is the historical context of Schmitt's decision to bring up and employ the notion of constituent power. according to Schmitt. "in every revolution a [provisional] government is formed until a new decision concerning the subject of constituent power is reached. It does not have competencies or a limited range of attributions. Schmitt defines it as "the political will whose power 34. which first met in Weimar on February 6. 1918. the real representative of political unity. 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. Germany adopted then for the first time. the councils of workers and soldiers transferred their power to this Constituent Assembly which assumed the exercise of constituent power. '' Subsequently.Carl Schmitt on Sovereignty and Constituent Power After defeat in World War I and the Kaiser's abdication. according to Schmitt.bid. ed. the democratic doctrine of the constituent power of the people. and therefore cannot be interpreted as a commissarial dictatorship limited by pre-existing legislation. the subject of constituent power but merely its agent. & Jurisprudence 197 1997 .
such as the soviets in the Soviet Union or the fiasco in Italy. the people or a strong group within the state 9. or a corporate order. Schmitt is not thinking of a quantitative or electoral minority. Only when the decision of a sovereign people has been expressed may one regulate its formulation and execution.approximates it to sovereignty. Schmitt conceives of a third possible subject of constituent power. on the part of Schmitt. the activity of constituent power. Siey~s had lifted that notion above and beyond positive juridical forms. an exploration of the putschist possibilities of revolutionary conservatism. 38. Schmitt visualizes a circle of powerful families. See Renato Cristi. constituent power stands "outside and above" the constitution. In cases like this. Whether its subject be the monarch. He does not allude to a nation's armed forces. different from the monarch and the people. which at one point Schmitt describes as a generating source. Again. and a State where this happens "has an aristocratic or oligarchic form of government" (supra note 5 at 81). The grounds of a constitution are existential." An ambiguity encumbers the notion of a minority or an aristocratic group qua subject of constituent power. 40. at 81) may be in the position of generating a constitution by means of its constituent power. A constitution can only rest on a concrete sovereign will and not on an abstract norm. A unified and indivisible existential dimension grounds the other powers of the state and it cannot be assimilated by or coordinated with them.10 Can. "there is no definitive renunciation to invoking the will of the people. Schmitt underscores the foundational nature of constituent activity. a naturanaturans. It is after all the decision of the people that gave birth to the Weimar constitution. Schmitt admits that the theoretical construction that attributes constituent power to a minority "is not yet clear. L. A minority may also be a subject of constituent power. taken to formalist extremes by neo-Kantians like Kelsen. Germany had come to terms with the French Revolution and Sieybs' conception of the people as the subject of constituent power. Shifting away from what he had maintained in his PolitischeTheologie. J. Constituent power qua sovereign transcends the constitution. Such a minority. continues to exist outside and above the constitution. but surely they fit this scheme of things. 39. In 1919. At the same time. cannot be subject of constituent power. at 82). at 75. Supra note 5 at 242. Only a "firm organization" (ibid. IV The discussion in the Verfassungslehreon the subject of pouvoir constituant and its activity confirms its close conceptual kinship with sovereignty.' This is a feature it shares with sovereignty. as was the case in the Middle Ages. for whose true and unfalsified expression one ought first to create the preconditions" (ibid. or political party or faction. in his Verfassungslehre. The sovereign constituent will. & Jurisprudence 198 1997 . the manner of its activity cannot be prescribed constitutionally. In agreement with this view. configured juridically as constituent power. In no way is the constituent will exhausted within the positive constitution itself. "La noci6n de Poder constituyente en Carl Schmitt y ]a gdnesis de ]a Constituci6n chilena de 1980" (1993) 24 Revista Chilena de Derecho 229. One should also say that to contemplate the possibility of this third kind of constituent power implies. Ibid.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. HeinOnline -. Schmitt. designates the people as a legitimate subject of constituent power and rejects the monarchical conception that legitimized the German constitution of 1871.
constituent power was the ultimate ungenerated source of all forms. ibid. at 94. constituent power itself. which was in effect destroyed by the 1918 Revolution. it perseveres as the extra-constitutional ground of constitutions and constitutional laws. In the case of sovereign monarchs. In the first place. According to Schmitt. not even in the most extreme political situation. precedes and rises legibus solutus above all positive constitutional normativity. the people exercises its constituent power by means of any manifestation which conveys its express will. however. i.e. Constituent activity persists autonomously and independently from any positive constitutional legislation. Even if its power and plastic energy cannot be extinguished and may embody an infinite variety of forms. but alongside and above it the pouvoir constituant continues to exist. belongs to political theology. changed or altered in any way. Constituent power. But this did not imply a renunciation of their sovereignty. the people as such is not a firm and organized entity.constituent power was to remain in a state of nature. and not endowed primafaciewith permanent authority. After considering the issue of the subject of constituent power. be destroyed. At times. This is an indication of sovereignty. but also the species of constituent power may be destroyed. One should stress that it is not the constituent power itself that perishes. prudence dictated that monarchs reach agreements with the representatives of special interests. J. may be born. the destruction affects the constitution and the specific form attained by the constituent power that sustains it. HeinOnline -. Siey~s had tried to bestow on constituent power a metaphysical character. was that one subject of constituent power was replaced by 41. the people is not an organized subject of decision. like sovereign power. Accordingly. That interpretation. at 92. it is possible that a constitution may be destroyed (Verfasswgsvenzichtung). may the substance of power. Schmitt.Carl Schmitt on Sovereignty and Constituent Power At a certain point. As natura naturans. What happened in Germany. I see here an attempt on the part of Schmitt to distance himself from his earlier view which subsumed constitutional discussions under politicotheological considerations. suffer alterations and eventually die. Constituent power cannot be destroyed. In democratic polities. In no case. the unformed (formIos) form of all forms. he admits. disengages this metaphysical interpretation from constitutional theory proper. & Jurisprudence 199 1997 . From this matrix ever new forms were bound to arise. Its activity escapes constitutional bounds. It is not exhausted by its exercise and "retains the ability to persevere in its existence. During revolutionary situations. their activity could include the unilateral granting of constitutional charters. L. This is the reason for its weakness and may explain why its actual will may be falsified. as an accident supported by constituent power. not only the constitution and the organs of constitutional legislation. Two radical situations envisaged by Schmitt confirm the tie between constituent power and sovereignty. ibid. Schmitt analyzes its activity." The positive constitution. In a case like this.-2 Schmitt considers the case of the German constitution of 1871.10 Can. just as any measure transcends what is measured by it. 42.
" These sovereign actions set in motion the activity of constituent power in the daily ordeal of constitutional business. They take place. and thus relativize. Second. By contrast. What these sit' uations demonstrate is the "superiority of the existential over mere nonnativity. and not only monarchy. According to Schmitt. faced with a democratic revolution that was willing to appeal to the constituent power of the people. A constitution. such cases confirm constitutional validity. L. one which tries to offset opposed principles. Schmitt refers to the abrogation of a constitution (Verfassungsbeseitigung). This. 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. monarchical or democratic. what he calls "apocryphal acts of sovereignty. 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. without misgivings. According to Schmitt. when particular constitutional norms are violated. For Schmitt. Those violations are only "measures!' and not constitutional norms. this ideal of absolute normativity constitutes a tenuous fiction. In this case a constitution is rescinded but there is no destruction of the pouvoir constituant that sustained it. however. On the contrary.10 Can. The liberal rule of law component ought to neutralize the political democratic component and vice versa. at 108. J. Sovereignty manifests itself when the legal order is violated. Ibid. as an expression of political absolutism. at 93. for instance. He now feels that he too can point out. confirm its conceptual kinship with the notion of sovereignty. 44. The political and the state cannot be simply erased by legal fabrications and methods of avoidance. But "these acts of inevitable sovereignty"' are better justified when they 43. particular constitutional norms are violated in order to safeguard the substance of a constitution. Ibid. 4 They force the recognition of sovereignty. Schmitt's Verfassungslehreis a careful balancing act. namely democracy. & Jurisprudence 200 1997 . HeinOnline -. Destruction and abrogation of a constitution. Schmitt attempts to disarm it by acknowledging and revitalizing an old adversary-the liberal ideal of the rule of law. implies a sovereign prince or a sovereign people who stand legibus solutus. should not be regarded as proof of his democratic conversion. above the law. Schmitt is willing to concede what he earlier rejected in his PolitischeTheologie. Ibid. 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. Of themselves.the ultimate foundation of a constitution. Ibid. the legal order as a whole. the sovereign is whoever has the faculty to violate. An absolute form of government. Acts of sovereignty will inevitably occur. such violations do not imply the destruction or suppression of the constitution as a whole. 46. In his Verfassungslehre. On the contrary. 45. They are justified by particular exceptional and abnormal transitory situations. the two most drastic manifestations of constituent power.Cristi another subject: the constituent power of the people substituted that of the monarch. at 107.
50."" which ascertains a "completely systematic and methodical analogy" with Spinoza's view on the relation between . who in turn were not to act as popular commissars or agents. 49. Supra note 5 at 80. the sovereignty of the people was to be delegated to their elected representatives. John McCormick and William Scheuerman. Schmitt. This was facilitated by a travel grant from Vilfrid Laurier University. 51. 1992) at 306.distinguishes the "positive doctrine" from the "metaphysics" of poti'oir constituant. L. 48. In Hobbesian fashion. & Jurisprudence 201 1997 . The people. Die Diktatur. but with a difference. See Jean-Frangois Kervdgan. Rejection of an imperative mandate allowed the assembled representatives to assume. In his Verfassungslehre. weapons that a political theological conception of sovereignty can place at one's disposal. This was supported by his metaphysical conception of thepouvoir constituantas an inexhaustible naturanaturans. CarlSldit. See Stefan Breuer. with autonomy and independence.The latter belongs to the "doctrine of political theology. like Siey~s. lation etpositivit6 (Paris: Presses Universitaires de France. "Nationalstaat und pouvoir constituant bei Siey s und Carl Schmitt" (1984) 70 Archly ffir Rechts.Carl Schmitt on Sovereignty and Constituent Power are seen as grounded on the constituent power of the people. For comments and suggestions Iowe thanks to Heiner Bielefeldt. acknowledged Siey~s. never leaves the state of nature. J. he intends to make sure that once in power democracy can be more easily restrained than enhanced.Conscious of the radical naturanaturansand naturanaturata.By contrast.und Sozialphilosophie 510. what Sieybs considered to be the ultimate expression of sovereignty-the exercise of constituent power. On the contrary.10 Can.he comes to accept and recognizes the pouvoir constituantof the people only because he has found a way to disarm it. This paper was read at a session of the 17th IVR World Congress held in Bologna in 1995. Le politiqueentre spocu. Hegel. HeinOnline -. 7 Thus. in his Verfassungslehre.5' 47. Siey~s fused sovereignty and representation together. "' According to Siey~s. Supra note 5 at 80. Schmitt denies these weapons to democracy. I am particularly indebted to David Dyzenhaus for his commentaries and editorial help. he tied the doctrine of the pouvoir constituant of the people to the antidemocratic principle of representation. The delegation of sovereignty was only temporary and could legitimately be reclaimed at any time.supra note 3 at 142. One should note that Schmitt's aversion to democracy is not superseded by his recognition of democratic sovereignty in the Verfassungslehre.
10 Can. J. & Jurisprudence 202 1997 .HeinOnline -. L.
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