Carl Schmitt for the Masses: The Problem of Sovereignty

We have this belief in democratic societies that the people are sovereign. Or that we live under the rule of law. Carl Schmitt is here to disabuse you of these naïve ideas.

4. Carl Schmitt for the Masses: The Problem of Sovereignty

“Sovereign is he who decides the exception.”

This opening line of Political Theology sets the topic for this short work. For those few who have heard of Schmitt and know an inkling of his thought, this may be the one singular bit they know. That and the phrase: “the friend-enemy distinction.” It is concise and incisive and opens his work Political Theology. Like most of Schmitt’s thinking, he is sparse in his words. He is not afraid to show off his learning and if you have not read enough to follow his argument, that is on you, the reader. Schmitt does not give us answers. He poked holes in the prevailing intellectual ideologies of the day, telling us what was likely to happen, but not what “must” be done.

The west today is built upon these same ideas that Schmitt saw in play in his day, early 20th century Germany, especially the Weimar period. The critiques he offered then still apply and seem very prescient as we examine our own moment. Schmitt writes very much for his time. The underlying ideology of his day—enlightenment liberalism—is still very much at work today. If you look back at the people enacting New Deal reforms in education and in political governance, namely the introduction of a professional “non-political” bureaucracy, they intentionally borrowed the “Prussian” model Schmitt saw in Germany, and applied it here. In some sense, all of the problems Schmitt saw in his day have grown, metastasized and are more obvious now today.

The Exception

Like much in Schmitt, people I hear talk about him often end up focusing on the wrong things, and so miss the deeper points he is often making. It is easy to begin by discussing the idea of a “sovereign” but it is more profitable to approach this saying from the other end, that of “the exception.” Why is this important? Both liberal constitutional parliamentary democracy and the professional administrative state exist largely to sidestep or eliminate the problem of “the exception.” The exception is any emergency or crisis that cannot be dealt with using the existing rules, laws, and structures of society.

Both the liberal constitutional parliamentary democracy and the professional administrative state run on a similar assumption, that most, if not all circumstances can be accounted and planned for in a system of principles, rights, laws, policies, structures and organizations. We believe we can write a constitution that we will be able to apply to any new situation that comes up. We can develop a system of governance with checks and balances that will be sufficient to handle any new situation which arises. We will put in place governmental organizations which will be able to administer society effectively in all circumstances.

Schmitt asserts that this is a lie. He argues that no matter how genius the system is, there will always arise a circumstance, a crisis, that the system has not accounted for, that it cannot handle. Nobody knows what this emergency will be or what it will entail. It is not, nor can it be, anticipated. This is why there can be no plan for it in the current system of laws and administration. There is nothing that can be done in advance to prevent or eliminate it or prepare for it. It will simply arise and have to be dealt with and none of the existing structures, laws or principles will help in resolving this crisis. It is the big thing for which the planners cannot plan. This crisis is “the exception.” Schmitt argues that in these situations, whomever is able to resolve the present emergency is the “sovereign.”

He is not talking about someone, some body, some entity that can take charge within the existing rules of the system. Even if these are special and extraordinary powers set forth in the existing laws allowing someone to act dictatorially, giving wide ranging powers to address the crisis, this is not truly a “sovereign” action. The sovereign, Schmitt argues, stands apart from the law itself, is able to set aside the law, re-write the law, re-establish the whole system itself, if necessary. The sovereign also is the one who decides that the crisis is over and that “ordinary time” has resumed. This would not mean going back to the old system, but rather going forward into the new system as constituted and put in place by the sovereign. The power to suspend the law, to suspend the system itself is the power of the sovereign.

This is the question that Schmitt poses to the defenders of the liberal order and the defenders of the administrative state. Who is responsible for that which cannot be anticipated? Who has unlimited power? Who has the power to remake the system itself? We look at these questions as people who live within systems of liberal constitutional government and the administrative state and we are repelled by them. Our instincts say that no one should have that kind of power. That is the point of a democratically elected constitutional government. And that is also the point of a professionally administered bureaucracy. No one should have that kind of power. Our current modes of government are designed to sidestep and avoid this question all together. The division of powers is meant to suppress the question. Power should be dispersed.

This, argues Schmitt, makes the liberal state vulnerable to crisis. It makes it likely that the state will freeze up in endless discussion and debate, arguments over whose responsibility it is or what structures are best able to handle the crisis. The liberal state works as long as there is no true crisis, no emergency so bad that it forces the question of who has the power to take charge and deal with the problem. As long as no situation, no threat arises that forces the question of sovereignty, everything will keep humming along. Who has the power to suspend the rule of law itself and then return the state to normal functioning? The answer is that no one has that power, and this is by design. It makes the very idea of a liberal state vulnerable to despotism or worse. Perhaps this “worse” is total collapse. No one is able to step in and deal with the crisis.

The Rule of Law

One of the challenges we face in dealing with this question properly is the idea of “the rule of law.” In the modern era, we have this idea that everyone, including the state itself, are all subject to the same set of rules equally, the same set of laws equally. The law rules us. Power is not rooted in persons or institutions, it is not rooted in systems or structures; rather the ruling power is the law itself.

There is a two-fold problem with this concept. Where does the law come from? And secondly, who interprets and applies the law to the different and varied situations? The law does not write itself and it does not apply itself. This is supposed to be the role of the state and its various bodies: legislative, executive, legal and administrative. They are tasked with determining the content of the law. In a democratic system, this content, at least in theory, is supposed to emerge out of the will of the people. The problem is, though, how do you determine the will of the people? What if there are competing “wills” because the society is not culturally unified? Because the law cannot write itself, knowing which authority is generating the law is vitally important.

The other challenge to the idea of the “rule of law” is the question of who is interpreting the law? This is the problem of application and hermeneutics. Who should apply the law to different situations? Who has the power to give the authoritative interpretation of the law in the moment? Because this body, these persons or this person is deciding on the content of the law, their authority cannot be derived from the law itself. Why not? Because they are the ones who decide on its content and its meaning. Their authority stands apart from the law. Who decides on what the content of the law means in any given situation? Who decides whether this application is a good or bad application, whether the application is according to the content and spirit of the law or runs counter to it? This is the problem of a “supreme court.” As arbiters of the meaning of the law, they stand outside the law itself. This is why, especially in the American system, the battle of Supreme Court justices are so weighty. The justices stand outside the law as the arbiters of its meaning. In a similar way, those who write the laws, the executive orders and the minutiae of regulations in fact stand outside the law as well as the generators of it content.

Schmitt places before us the question of the law itself. The idea of “the rule of law” is a polite fiction that we tell ourselves so that we don’t have to face the reality that our system is not quite what we say it is. We are in fact ruled by those who write the law, who interpret the law and the mechanisms by which the law is enacted. From where do those people draw their authority? If there is a crisis that requires setting aside the law, who will be responsible in that time? Will it be “the people”? Will it be the legislature? Will it be the judges? Will it be the bureaucracy? Will it be a particular bureaucrat or body of bureaucrats? It always comes down to persons for Schmitt. The law, as an abstract concept, or even as a document, is not capable on its own to rule. We must direct our attention to understanding who or whom is deciding on the content of the law.

The Miracle of the Law and the Sovereign

Schmitt argues that the modern liberal constitutional state was developed as Christian belief was diminishing in western society. He argues that the whole system of constitutions and the idea of the rule of law are meant to replace the idea of the sovereignty of God. As the idea of deism took hold in society, especially among intellectuals, people began to work with the notion that God is there, but he is distant. God does not really involve himself directly in the affairs of mankind. There are no miracles. God is the one who upholds the system of creation and then leaves us be to live within the system he has created for us. Our current conception of the state, argues Schmitt, is based on this deist understanding of God. God is not longer there to directly intervene outside of the laws he has set up. The idea of a constitution and our western legal system functions in much the same way.

This conception of God went hand in hand with a rejection of the idea of a king. The king was a representative of the divine presence in society. The king stood above the law, answerable only to God. The king was, in some sense, the living presence of the divine miracle in society. If we understand the miracle as a divine act that suspends the normal working of the laws of nature, so to the king’s presence in society as sovereign is the reification of the miracle in terms of the valid legal order. The king could intervene to change, write, suspend, or strike out aspects of the law. He could suspend the law altogether and just act. It was also within his power to generate a new valid legal order.

In practice, the degree to which an one particular king could act on this idea was largely irrelevant to the concept of the sovereign as embodied in the role, the office of the king. The state found its unity in the person of the king. The king had a rightful monopoly on power that was in some way “mystically produced.” The role and office of the king answered the questions of where the law comes from—it comes from God through the person of the king—and who interprets it—the king is able to decide how law applies in new situations. The presence of the king made visible the “miracle” of the production of law. Because laws cannot generated themselves, the idea of the king as the presence of divine sovereignty gave the law legitimacy as the valid order given by God and grounded in God. Even if in practice this was not how the law was generated, the king was a symbol upon which the system of law rested. Even within a web of tradition and precedent and competing powers that restrained the king, his role was symbolic of a theological concept. Hence the title of Schmitt’s work: Political Theology.

What Schmitt argued was that with the rise of deism—God still there but receding into the background—the direct presence of God in the role of the king was no longer seen as necessary. If God the architect remains outside and uninvolved in the day-to-day working of the natural order, so too in the political order, God could recede into the background as well. In this sense, the idea of God is still there, but you do not see his presence in the generation and interpretation of the law. Once the machine of the legal system is put in place, it will largely run itself. This is the basic idea of constitutional governance. The constitution becomes the presence of God, just as the laws of nature are the presence of God. God himself is not there, but the laws remain.

The active presence of God was not gone altogether. It was supposed to express itself now through the will of the people. This is the idea of popular sovereignty. The system would largely run itself, that is, just like nature is governed by laws, so too society would be governed by the rule of law. Every now and again there would be small tweaks and adjustments needed, some fine tuning of the system and this would come through the will of the people as expressed in and through the political system. But by and large it was seen as a sufficient, self-contained and complete system.

In practice, argues Schmitt, this is fine as long as the normal order prevails. It has no answer, though, for a crisis significant enough to force an exception that the existing order could not predict or account for in the existing framework of law. In some ways, modern, liberal constitutional democracy sets aside the question of sovereignty, much in the way that deism set aside the question of God. It relies on the idea of a God-given order but without God actually being present. Modern constitutional systems of government are built on this deist idea of sovereignty. It is a hold over from the era of kings and the “miracle” of the divine law giver, but without the need for God and king.

The Never Ending Debate

This shift in philosophy was consistent with the attitudes and desires of the rising bourgeoisie. They wanted a God out there to provide order and structure for the universe, but they did not want an active God to whom they would feel any obligation. In the same way, they wanted a monarch, but only as a symbol of order. He had to be powerless. They wanted to build a new society on the power of reason alone. Much as they were building a new world of science, learning, industry and commerce, so too could a new society would be built using nothing but the ingenuity of man. God is there is the background, but only as a symbol, not as a real presence.

In the same way, they were building a new political reality for themselves. They wanted freedom, equality and political status similar to that of the old aristocracy but without any of the metaphysical baggage that came with it. They wanted to throw off the old spiritual obligations that grounded the old system. God and tradition were on the way out; reason and science were on the way in.

This new freedom, at the time, was not extended to the masses. It was something for the propertied classes only. The bourgeoisie would become equal with those who used to be above them in status. But the passions of the general population were not trustworthy and easily manipulated by emotional appeal. The vote would be limited to those like themselves. The rising bourgeoisie wanted neither a king nor populism. In that sense, little has changed. The franchise may have expanded to give everyone a vote, but those in leadership are still distrustful, even disdainful of populism.

The rationalist idea which inspired the new constitutional parliamentary style of government championed ideas like freedom of speech and freedom of the press. Every idea would be discussed and all ideas would be on the table. The marketplace of ideas would allow the best ideas to emerge through rational discourse. Schmitt argues that this commitment to open ended debate and the marketplace of ideas essentially permits the idea of “the decision” to be evaded. Nobody decides anything. The balance of powers was meant to keep the system stable through the endless push and pull of competing interests, through endless debate of all questions.

The essence of the liberal idea is that no question is ever supposed to be settled and decided. This is the scientific spirit at work in government: the open ended quest for knowledge. The politics of ongoing discussion. Only the narrow and close-minded would want to suspend debate. Liberalism’s essence is the cautious half-measure, the negotiation, the hope that with more discussion the bloody battle can be avoided. All of the passions and turmoil that fuel politics are transformed into parliamentary debate. The decision, says Schmitt, is suspended in favor of everlasting debate.

The whole system kind of floats in its own abstract space. It is formed in reason and is thus abstract in nature. It biases discussion over decisive action. It biases the open-ended quest for knowledge over firm declarations of the truth. This works as long as you limit the aims of the parliamentary system. If you do not broach the deeper, thornier questions of metaphysics, truth, and morality, focusing instead on mere management, you are fine. As long as the system is not stressed with a great crisis, then it works.

Because the intent of the rational system of constitutional law was meant to be a self-contained system that could address any and all situations, you were expected to set aside the question of how it was produced or on what it was grounded. It conformed to reason. The connection to God and tradition was shorn. They felt that they did not need any arbiter who would decide such questions. Reason and debate would enable them to work through any new situations which would arise, and do so from within the self-contained system of law. The questions of the authoritative origin of law and the authoritative interpretation of law were set aside and replaced with an ongoing and continuous rational debate. As long as we keep talking, everything will work itself out. Politics became another facet of the quest for rational learning and the scientific process.

The Managerial State

As we emerged into the 20th century, Schmitt was identifying a trend present then that we see now in full flower, that of the professional managerial state. Much of our North American ideas about the non-political professional bureaucracy were in fact borrowed from the Germans: the “Prussian Way” they called it. The idea of a professional bureaucracy, the managerial state as we now know it, takes the spirit of constitutional parliamentarianism and extends it to its logical conclusions. The parliamentary approach tried to set aside the question of “the decision” in favor of ongoing and perpetual debate. The managerial state attempts to eliminate the question of sovereignty all together. The “system” decides.

Managerial bureaucracy is similar in spirit to liberal constitutionalism, in that just as the constitution attempts to account for all things through a rational legal structure that can then direct the affairs of all equally under the same standard of law, so too the managerial state attempts to develop rational policies that then can direct the affairs of the citizenry through the mechanism of the bureaucracy. The managerial state eliminates the political. There are only problems of management. All problems are technical and managerial. There are no political problems. We are managed, not ruled.

What happens in practice is that all potentially divisive political questions are passed off to technicians and experts who then assess the situations at hand and develop a policy and build processes and governmental structures around those policies. In the managerial state, there is no one person, no one body who decides. There is no sovereign. Teams of experts do research and they discuss the problems, they plan and implement. They direct, build and manage the system but there is no single person responsible for the decision.

We are ruled, says Schmitt, by a priesthood of experts. The “laws” (governmental policy) seem to just generate themselves. They mystically arrive and the experts enact them. There is a kind of infallibility, akin to the old role that God used to play. It is now the experts themselves and their expertise that “grounds” the law. As we saw above, this is the “miracle” of the decision. Infallibility and sovereignty go hand in hand. What Schmitt argues is that there is a claim working in the background of the managerial system. The system itself is perceived to be sovereign and infallible with a priesthood of experts who divine the will of the system and then interpret and apply that will to new situations. We have shifted from the “rule of law” to the “rule of the administrative system.” At the same time, though, because there are no real political questions, only technical ones, the whole question of sovereignty is set aside. The entirety of the system is in charge and yet at the same time no one is in charge. As long as there is no crisis large enough to significantly stress the system towards collapse, every small crisis that the system faces in fact strengthens it and extends its reach. The question of the decision is set aside indefinitely.

The Dictator

Schmitt looked at constitutional parliamentarianism and bureaucratic managerialism and saw in them a flaw. Because they are not grounded on any metaphysical reality they are inherently vulnerable in times of real crisis. They cut ties with the idea of God and the divine legitimacy of the king to step in and right the system. It also cut ties with any metaphysical order outside of its self-contained set of rules that might help diagnose and right the system again. There is no avenue for society to repent and return to God. Because the system of law and government floats in its own self-contained bubble, all that is left is the so-called “will to power.” He will discuss this more in later books, but in this small volume, Schmitt argued that the only avenue that society has left when things break down, and they will eventually break down, is for a dictator to step in and set aside the current order and remake it after his own image.

Because the societal ties to God and the metaphysical order that accompanies that active belief were shorn, there is nothing for the dictator in which to “ground” his rule other than in the force of his own will. This was the basis for Schmitt’s notion of “decisionism.” We cannot go back to the old metaphysical order that grounded the system. We can only go forward. When the system breaks down, when it faces the crisis that cannot be managed through the existing order, only a dictator can fill that gap through the force of his will. We will need someone who can decide the exception. Hence “decisionism” as his nascent political philosophy.

It is never said explicitly in Political Theology, but one can sense the disdain that Schmitt has for the endless talking of parliamentary democracy. He is equally suspicious of the managerial impulse of the professional bureaucracies that were growing up. You sense that he saw in the growing turmoil of the day that what was needed was for someone to step in and take charge. In his time, history proved him correct with disastrous results. Hitler emerged out of the chaos of Weimar period liberalism to grab hold of sovereign power in Germany.

Personal Agency

What lesson or lessons can we learn from this book today, other than gaining a better understanding of the idea of “sovereignty” as argued by Schmitt? It is useful as we face present crisis and emergency measures are introduced to begin asking the question, who is in charge? Is it our politicians? Is it us the people? Is it the bureaucrats? In some ways, the more ominous answer is that there there is on one person in charge, no single entity. It seems we are governed by a web, a network of people and systems where it seems like decisions are being made, but yet no one claims responsibility for them. They just happen. The policies dictate. The experts tell us. The science is clear. No one takes responsibility and no one is ever punished for failure. The same people circulate endlessly within the system regardless of whether they succeed or fail. The system provides cover and allows the evasion of responsibility. There are processes, but no one seems concerned with results.

It was not always this way. Read older texts. Every official had real agency and they were expected to get a job done. When you failed you paid a price. You lost your life. You were ruined. Your family suffered disgrace. There was a real system of right and wrong that could be leaned on to call into question the actions of officials and magistrates. They were expected not just to do their job, but also to be representatives of the metaphysical order. They were God’s representatives in society.

Better systems of governance, better processes, better administration within the existing order do nothing to solve the fundamental religious and metaphysical problems of our society. If you are working to reform the system, you are still working for the liberal system with all of its assumptions in place. We in the west are a people who are grounded in nothing more than our own reason and our own power. We have built a system without metaphysical or religious foundations. Making elected officials and government bureaucrats personally responsible for the results of their policies, doesn’t help because we have no means, no standards by which to judge their success or failure beyond the policies of the system itself. If you do everything by the book and it fails, who is at fault? You? But you followed the rules? The system? The policies? How do you hold systems and policies responsible? Do we hold those who wrote them and built the structures? It is often teams of experts who are long gone by the time anyone realizes that these policies or structures don’t work. The whole rational exercise of scientific management is itself an ongoing rational discussion, so even the claim that the systems and policies are grounded in science fails because the results of science are always shifting. In many ways, we have no way to diagnose the system because we have no tools outside the system itself by which we can evaluate it. I suppose a deep religious revival that would awaken anew a metaphysical framework strong enough to reign in, reform and re-ground our political system is possible, but such a thing would have to be something that would blossom among our society’s elite. A populist religious revival will do nothing to change the system.

So where does that leave us? Our system likely has a lot of ability to keep on keeping on without fear of general collapse. But, because of the religious and metaphysical impoverishment of our society, we should expect that our western society will be ruled by a dictator at some point in the future. You can see signs of this impulse already among current politicians and bureaucrats. There is a crisis coming that will demand it. I would not be surprised if we see a breakup of the west into smaller, more manageable political entities. We may see multiple, even competing dictators rise at once. The essential insight of Schmitt remains sound in my mind, that our society, shorn of its religious and metaphysical foundations has no mechanism to face a true crisis other than the personal will of a dictator who arises to step in and attempt to reshape the system by the sheer force of that same will. What comes after that? We will have to see.

“Sovereign is he who decides the exception.”