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About the Author
Adam Sitze is Associate Professor of Law, Jurisprudence, and Social Thought at Amherst College and the coeditor of Biopolitics: A Reader, also published by Duke University Press.
Amanda Minervini is Visiting Assistant Professor of Italian at Colorado College and translator of Nymphs by Giorgio Agamben.
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Essays On Carl Schmitt
By Carlo Galli, Adam Sitze, Amanda Minervini
Duke University PressCopyright © 2015 Duke University Press
All rights reserved.
SCHMITT AND THE STATE
Schmitt's confrontation with the problems of the State lasted his entire intellectual life. In this chapter, we'll discuss Schmitt's main attitudes toward the State in chronological sequence. We'll also discuss the different solutions he suggested to solve the crisis, starting from the assumption that although Schmitt's intellectual performance is indeed an extreme reading, it's not external to the dynamics of modern statuality.
In the first place, it's important to clarify that when Schmitt talks about the State, his point of departure is the concrete experience of the German State, which he lived with political passion and participated in intellectually. Beginning with the historical weakness of the German State and its via crucis [way of the cross] in the first half of the twentieth century, Schmitt analyzed the overall event of the modern European State, which he could not think except from a theoretico-epochal viewpoint, seeing it as the main aspect of political modernity. The specifically Schmittian analysis of the State is made up of the systematic interweaving of these levels — the politicological, the historical, and the theoretical.
Despite the importance of the State in all of Schmitt's political reflections, he never sees it as the "beginning" of politics, even if at times he does consider the State to be the center of politics. In general, Schmitt's fundamental disposition toward the State is ambivalence, as demonstrated by his tormented relationship with Hobbes, whom he sees as the emblem of modern statuality. On the one hand, the significance of Schmitt's complex intellectual performance consists in his understanding that in the twentieth century the State-form is no longer either the center of politics or synonymous with political order. Schmitt thought politics beyond the State, or before the State, in many different ways — ranging from the concrete experience of the destruction of the State through revolution to the crisis of parliamentarianism, from the central roles of the parties to the mingling of State and society, from the elaboration of the categories of exception, decision, and dictatorship to the concept of the "political," from his substitution of the constitution and constituent power for the State as key concepts of the political order to his deplorable Nazi adventure and his late concept of nomos. In each of these instances, Schmitt distanced himself from a reality and a conceptuality that were literally epochal. Schmitt's critique of the State als ein konreter, an eine geschichtliche Epoche gebundener Begriff [as a concrete concept that is bound to a historical epoch] is perhaps the most salient and constant of his critiques of modernity (one that he presents with special pathos in the late foreword to the 1963 edition of The Concept of the Political).
On the other hand, Schmitt's juridical background left him incapable of doing away with modern statuality altogether, and unable to go radically beyond the critique of the crisis of the State in the twentieth century. Because the conceptuality of the Modern — which is also the conceptuality of the State — remained the horizon for Schmitt's nonetheless radical deconstruction, he never conceived of a politics completely detached from the State. The permanence within Schmitt's thought of two grand thematics — political unity and constituent subjectivity — together with his renunciation of the complete juridification, institutionalization, and rationalization of politics, thus position Schmitt's political reflections internal to the twentieth-century crisis of the State. In fact, the true outcome of Schmitt's thought is a paradoxical renewal of the political efficacy of the State that he obtained through the full acceptance of its instability — an "arationalistic" constructivism, if you will. Schmitt is thus a critic of the rule of law and of the liberal State, and, at the same time, a critic of the juridical positivism of the Allgemeine Staatslehre [general political science], which is to say, of the syntheses — between individualism and universalism, between juridical order [diritto], power, reason — that the State-person claimed to realize. Schmitt attempted to revitalize the State by turning its liberal form — which was, by then, already deformed — into a political and juridical form that now would derive its efficacy precisely by being aware of the powers that deform it. He conceived of a political order, that is to say, that would be able to recognize the disconnection in principle between form and reality — an efficacious order that would be mobile and not static, open and not closed, tragic and not pacified, transitional and not definitive. Even though this order would be foreign to the ideologies of legitimation elaborated by modernity (such as rationalism, liberalism, and progressivism), it nevertheless would remain modern — and, indeed, would be able to "restrain" the destructive dynamics of a modernity left to its own devices. For Schmitt, in other words, even though the State deserves to be mobilized and destructured, it also provided the efficacious political form that he acknowledges as having performed the task that would allow it to be defined as a katechon — a "force that restrains." The function of "restraining," which was always difficult, became even more complicated in the twentieth century, so much so that the State could only continue to perform this function at the cost of a radical transfiguration of the State's own liberal form. In the wake of World War II, in fact, "restraining" became a function of order that Schmitt would view with nostalgia. It became a modality of the State no less important to Schmitt than those other modalities — such as deformation, relativization (which is to say genealogical historicization), and deconstruction — with reference to which Schmitt would both analyze and criticize the State over the years.
In his own way, therefore, Schmitt would touch on several of the main topics of twentieth-century juridical and political reflection on the State. Even if his thought is bound to a horizon that, in part, is no longer with us today, and even if his writings aimed at political objectives that surely diverge from ours, his reflections nevertheless remain an important testimony to the decline of the jus publicum europæum.
2. The State in Schmitt's Political Theory
I first will address the "theoretical" side of Schmitt's analysis, and then follow up by considering the "historical" and "politological" ones. This is a choice I make only for the sake of clarity: in fact, Schmitt's theoretical reflections are born from the exigencies of practice, and his philosophical reflection is born from a critique of the present.
2.1 During the first phase of Schmitt's thought, his Catholic viewpoint, which stood polemically against modern secularization, allows him to distance himself completely from the State. In his 1923 Roman Catholicism and Political Form, Schmitt interpreted the State as the political form suitable for an epoch, modernity, that negates the traditional nexus between transcendence and politics (or, in the concrete, that criticizes the papal auctoritas and its mediation). In this sense, the State attempts to construct political order as a self-sufficient rational mediation, a contract producing a legal order, a technical artifice, an instrument of defense and domination that is at the disposal of the individual subject, with its rights and needs. According to Schmitt, however, the ratio of the modern State, which is independent from its auctoritas (from papal mediation, from relation with transcendence), is incapable of repraesentatio, which is to say, of the ability to form a public-political order that is open to the Idea (and that is hence too meaningful, complex, and concrete). Modern politics, of which the State is the proper form, does not then have a true public dimension. It is instead an ensemble of private subjectivities that believe themselves to be guaranteed by that State and that, together with every other modern ideology, are destined to anguish — to be annihilated by the triumph of technics. For Schmitt, this triumph is the true cipher and true horizon of modernity and of the State (whose origin he ascribes, in this phase of his thought, to Machiavelli). In his view, therefore, the Catholic Church is the custodian of politics, of unitary concrete form, of publicity, and of representation. The modern liberal State, by contrast, is unstable, nihilistic, incapable of any unity other than in abstract, and unable to produce a public sphere except other than at the level of the individual.
Even so, Schmitt does not plan to entrust politics to the Church: he is neither clerical nor a fundamentalist. Indeed, from the midtwenties, he will be critical of the ecclesiastical pretense — as of any other, whether of moral, economical, or of technical origin — to exercise a potestas indirecta [indirect power]. For Schmitt, politics pivots not so much around the Church and its triumphalism, but around the State — provided, of course, that it be understood outside of its own self-interpretation.
2.2 In his 1914 book Der Wert des Staates und die Bedeutung des Einzelnen (The value of the State and the meaning of the individual),Schmitt entrusted to the State the task of collapsing the transcendental Juridical Idea (which is, in itself, empty) into the contingency of concrete political praxis, which is to say, into the mediation between juridical order and power (which, in turn, is always in reality a "leap" or "decision"). But even though Schmitt thus assigns to the State a most crucial role, the State of which Schmitt speaks completely lacks any pretense to self-sufficiency, any presumption that it is the origin of order and politics. In Schmitt's view, in fact, the State has value only if it recognizes that it is not originary, only if it is aware that its mediation is imperfect, neither fully pacified nor completely immanent. The State has value, in other words, only if in the course of its own essential function — sovereignty — it recognizes the discontinuity between Juridical Idea and reality, between Juridical Order and Law, and only if it remains aware that Macht [Power], does not create Recht [Juridical Idea] but simply renders it effective by applying it to the concrete case. For the young Schmitt, the State with its power does not then create juridical order; to the contrary, State power realizes a Juridical Idea that precedes it. The State is thus instrumental, but without also becoming a State-machine. It works to realize juridical order (although never fully), but not to create it; and it operates the Rechtsverwirklichung [actualization of the Juridical Idea] on the basis of a modern "compulsion for form" that it never calls into question. The State takes charge of the necessity of political order; but at the same time, it assumes the impossibility of reaching a perfectly pacified and self-sufficient organization. As such, the State also takes on the necessity according to which political form, in order to subsist effectively, must recognize its originary and insuperable deformity.
Insofar as the task of the State is sovereignty, Schmitt argues, its task is clear: it must deal with an aporia — the noncoincidence of politics and juridical order — which is at one and the same time also the point of departure for a radical critique of the Modern (given that the Modern aims at a politics that is fully self-justified, and theorizes the full connection between politics and juridical order). This disconnect is the nonrational immediacy at the origin of the State's rational mediation. Schmitt is thus critical not only of liberalism (which thinks the State as rational mediation whose center and origin is the individual) but also of juridical positivism (which dissolves juridical order into the State). When, in Der Wert des Staates, Schmitt affirms the notion that every State is based on the "rule of law" [Stato di diritto], his formulation may then seem Kelsenian, but it is in fact directed against Kelsen. With this formulation, Schmitt means not so much that the State must coincide with juridical order, but only that the State presupposes the Juridical Idea, and that, because of the disconnection of that Idea from reality, it uses decision and political praxis to realize that Idea into positive juridical order. This is what differentiates Schmitt's dynamic concept of decision from Kelsen's statual concept of norm: in the former, the juridical order's lack of foundation is posed as a problem, whereas in the latter the question of the origin of juridical order is consciously renounced.
2.3 Schmitt's polemic against Kelsen is also clear in his 1922 Political Theology, the text that reveals the true significance of the disconnect between Juridical Order and Politics, and of the role of the State in dealing with it. In this study, Schmitt identifies the State not with sovereignty that orders but with sovereignty that decides. What produces order here is not rational and institutional mediation but the "sovereign decision," and the origin of this order is not law but disorder — the disconnect between Law and Politics — which here takes the name of the "exceptional case," the originary "remnant," the shadowy zone of modern political conceptuality in which mediation cannot be distinguished from immediacy. Schmitt's critique of the State in this book is also openly deconstructive: a political order cannot be founded on stability (or staticity) but only on openness to disorder. It is necessary, but never possible, to exit the state of nature. The State is functional only if it is capable of creating and negating its own system of norms; it is a crystal marked by a constitutive crack, the exception and the decision, which destabilize it while also making it functional. Politico-juridical order is wirklich [actual] only if it "remembers" its own origin in crisis, only if it opens itself to crisis instead of closing itself off. This is a principle of political incompleteness and indeterminacy; it contains both the originary compulsion for form, and the co-implication and the disconnection between order and disorder. Politico-juridical order, necessarily, obtains legitimacy not because of its formal completeness, but only thanks to its imperfection, and this is visible precisely in the decision, which is a wound, an opening on the Void of disorder.
Schmitt's position does not imply the triumph of Macht over Recht. The order Schmitt discusses always remains juridical, as in Der Wert des Staates und die Bedeutung des Einzelnen. The difference is that in Political Theology the Juridical Idea, which preexists the State, is even more clearly deprived of content and reduced to a "compulsion for form" that orients the State around the task of producing a unitary and juridified political form. Against Kelsen's thesis of the self-sufficiency of the norm, Schmitt perfects his thesis of decisionism and exceptionalism: with the decision on the state of exception, the State (understood as sovereignty) creates juridical order (understood as positive law) without needing juridical order (a fundamental norm) or natural law, but only on the basis of the compulsion for order that manifests itself in the State and is characteristic of the modern age. For Schmitt, as for Kelsen, juridical order is unfounded. For Kelsen, however, its lack of foundations makes it "pure" and objectively analyzable, whereas for Schmitt, that same lack "stains" juridical order with politics, makes it impure, and positions it against an enemy. Despite their opposition, which has become paradigmatic in the history of juridical thought, Schmitt nevertheless shares with Kelsen a certain intellectual radicalism, as well as a commitment to scientific procedure based on strong theoretical hypostatization, which is lacking from the authors to whom Schmitt is usually compared (such as Rudolf Smend and Hermann Heller, who, like Schmitt, pursue juridical order in its concreteness but who, unlike him, ignore its tragicity).
Excerpted from Janus's Gaze by Carlo Galli, Adam Sitze, Amanda Minervini. Copyright © 2015 Duke University Press. Excerpted by permission of Duke University Press.
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Table of ContentsAcknowledgments ix
Editor's Introduction. Carl Schmitt: An Improper Name / Adam Sitze xi
1. Schmitt and the State 1
2. Schmitt's Political Theologies 33
3. Schmitt and Machiavelli 58
4. Schmitt, Strauss, and Spinoza 78
5. Schmitt and the Global Era 97
What People are Saying About This
"Carlo Galli is certainly the most important scholar of Carl Schmitt in Italy and, to my knowledge, in the world. Among Galli's virtues is how well he situates Schmitt's concepts both in the context of Schmitt's entire opus and in the context of twentieth-century German politics and political theory. Galli's essays provide brilliant explications and explorations of Schmitt's central concepts, and Adam Sitze's introduction and Amanda Minervini's translation are exemplary."
"Carlo Galli is the greatest interpreter of Carl Schmitt today. In his book, Galli reconstructs with incredible expertise the categories of 'decision,' 'sovereignty,' 'conflict,' and 'political theology' as they relate to major modern political thinkers. What ensues is a penetrating look, not solely into Schmitt's own conceptualizations, but into our contemporary moment."