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Carl Schmitt develops a unique approach and explanation of the state of exception, the role and the meaning of sovereignty. His main argument is that the sovereign is: He who decides on the state of exception (Schmitt, p. 5). Schmitt did not say that the sovereign is he who decides in the state of exception. As he clarified things, to adopt this last formulation would be to fall prey to the liberal delusion that the state of exception and the manner of its disposal can be specified in advance.
According to Schmitt, the political like every other order, the legal order rests on a decision and not on a norm (Schmitt, p. 10). It is, therefore, the nature of the decision that has to be comprehended if one is to understand the concepts of law and of order, which are the two different, even antithetical, components of legal order. Once one sees the foundational role of decision, one will also see that, in the state of the exception, while law retreats, the state stays. The state is exhausted in official activity under the authority of positive law, which leads to the liberal claim that the state of exception is a state of lawlessness. Schmitt held that the concept of decision is closely bound up with the concept of personality.
He states that the most guidance the constitution can provide is to indicate who can act in each a case (Schmitt, p. 7). All norms and constitutional statutes owe what validity they might have to the ultimate decision that is the act of constitution-making. That act and the constitution it creates get their value not from norms but from the mere fact of the units existence as a political entity. In this way, the idea of the people transcends any attempt at formalization.
His claim was that since the advance specification is in both respects impossible, the sovereign has also to decide when such a state obtains as well as how to deal with it. At most, a constitution can try to stipulate who should deal with emergencies. Schmitt underlines that all law is situational law. The sovereign produces and guarantees the situation in its totality (Schmitt, p. 13). The one who, as a matter of fact, decides on the state of exception is sovereign, and the sovereign, in virtue of his position as sovereign, is the one who gets to decide on the state of exception.
Schmitt recognizes that the sovereign, because he decides on the state of exception or emergency stands above the normally valid legal order. But he tries to limit the exception by legally defining the jurisdiction of the sovereign, the conditions both for declaring a state of exception and for resolving it. The logical culmination of the liberal tradition is to resolve the ambiguity by eliminating the exception and with it the idea of sovereignty from any independent role in legal order. Carl Schmitt asserts that there is a link between legality and legitimacy such that the legitimate will always assert itself over the legal. His is a highly political conception of law in which law and morality are the products of a battle for political supremacy between hostile groups. Schmitt asserts that all legal orders are based on a decision which is an irreducible and animating political basis of such orders. Following Schmitt:
Every general norm requires a normal establishment of social relationships, on the basis of which each norm ought to be applied in an appropriate manner and to which it subjects its normative ordering. The norm needs a homogeneous medium.
The decision is basic in the sense that it is not a mere judicial decision or a decision by a parliamentary majority to enact a statute but a decision about the nature of a legal order. It is a decision constitutive of the legal order of liberalism.
These facts vividly portray that justice is a borderline concept because the existence of the state is undoubted proof of its superiority over the validity of the legal norm (Schmitt, p. 14). Politics is what takes place in the state of exception in order to make his point that politics is prior to and transcends all order, and this is prior to and transcends the state as well as law.
Levinas, in this work Existence without a World, develops the concept of there is which means impersonal, anonymous, yet inextinguishable consummation of being, which murmurs in the depths of nothingness itself (Levinas, p. 52). There is means a being in general (Levinas 52). Similar to this concept, the state of exception frees the ruler from legal restraints. This concept can be compared with pure or ideal state outside control and influence of the external environment. Similar to the state of exception, there is is seen as a nocturnal space, but it is no longer empty space, the transparency which both separates us from things and gives us access to them, by which they are given (Levinas, p. 53). According to Schmitt, we do know in advance who the sovereign is; only the content of his decision is unknown. Schmitts point is that the state of exception cannot be defined and regulated in conformity to abstract legal principles because these principles, by their very nature, are unable to determine in advance the scope of political power that is needed to deal with a unique and unpredictable crisis. Consequently, in such an ultimate situation of crisis, the government itself has to decide what amount of power seems appropriate to overcome the crisis. Similar to Levinass there is, Schmitt states that in the state of exception, this break between abstract and the particular situation, which under normal circumstances may be concealed, suddenly becomes patent and thus leads to open decision-making. The state o exception, according to Schmitt, reveals the hidden truth that the entire constitutional order ultimately depends on political sovereignty (Prozorov, p. 82).
In contrast to Levinass arguments, the ultimate sovereign, creating decisions of politics count as such because they express and constitute the most fundamental categories of politics. It is on this distinction that his philosophy of law and politics is founded, and he deploys it to bind together the main elements of that philosophy-decision, sovereignty, and situation. For Schmitt, the criteria for homogeneity are determined existentially by a genuine decision as to the existence of such a unit within the parameters of a particular situation. Such a decision creates the authority not only of law but also of morality. It carries the right to demand the unconditional obedience of the members of the political unit. Liberalism is the enemy of enemies because of the cunning and success of its tactics.
In contrast to Schmitts exception, Levinas states that to be conscious is to be torn away from them there is since the existence of a consciousness constitutes a subjectivity, a subject of existence that is, a master of being (Levinas, p. 55). Schmitt seeks to win the political battle by establishing a pluralist state built on avoidance or eternal postponing of decision and the fiction of the end of politics. It brings about the debasement of politics and of the life of the individual. Vitality can be restored only by a decision to establish a state properly based on the life of an utterly homogeneous people. With regard to the state of exception, it becomes obvious that the constitutional order as a whole depends on the political will of sovereign authority to establish, defend, and, whenever it seems necessary, suspend this order.
Works Cited
- Levinas, E. Existence without a World. Chapter IV, pp. 45-60.
- Prozorov, S. X/Xs: Toward a General Theory of the Exception. Alternatives: Global, Local, Political 30 (2005): pp. 81-85.
- Schmitt, C. Definitions of Sovereignty in Studies in Contemporary German social Thought by Th. McCarthy. The MIT Press, pp. 5-15.
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