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.