schmitt and the concept of the political - joseph belbruno

7/29/2019 SCHMITT and the Concept of the Political - Joseph Belbruno

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Tuesday, 24 July 2012

Freedom and Necessity - Carl Schmitt and the Exception

A theory is an explanation of life and the world that attempts to encompass them in their

totality by con-necting their parts in a systematic manner that is internally consistent

and that, through this consistentnexus rerum, achieves theadaequatio rei et intellectus ofScholastic fame. It follows that a theory must connect the relationship of the parts to one another

in a manner consistent with the systematicity of the whole. Consequently, regardless of the

content of the theory, the con-nections between parts and of the parts in their totality must be

necessary. This necessity removes any freedom that the parts may have had in relation to

the totality in such a manner that the theory admits of no exception that is not re -conducible to

or con-sistent with the totality and its systematicity.

This logical notion of freedom as the opposite of logical necessity has nothing to do with the

politicalnotion of freedom. It is instead the opposite of contingency, and in fact ought not to be

called freedom at all! Freedom is a political notion the opposite of coercion (Arendt inLotM). Once the notion of freedom is reduced to the opposite of logical necessity, then it

becomes mere contingency and is reduced to an onto-logical problem. The fact is that, as we

are demonstrating here, there is no such thing as logical necessity so that all truths are

contingent.But the fact that truth can be understood as logical necessity- that the

necessity of logic is what makes it true - and that freedom can be mistaken for

contingency means that truth or logical necessity can be abused or be used instrumentally

for the purpose of political coercion! By this process, freedom ofthe will can be mistaken for a

telos that, by positing the systematicity of life and the world as a totality becomes a qu est

for freedomfromthe will which is what the negatives Denken claims whilst at the same time,

by denying the existence of freedom in a political sense (because it understands freedom only

ontologically), denies the possibility of political freedom or else reduces it to contingency, tosuperfluity (Sartres de trop, Heideggers de-jection and Dasein as pro-ject). Freedom is

understood then as universal Eris, as total conflict so that freedom is no longer a function of the

will but the will becomes a function of freedom understood as cosmic contingency

(Schelling).

Arendt correctly distinguishes between freedom (political) and contingency (ontological),

pointing to their discrete opposites coercion or necessity, and logical necessity or

irresistibility. But she fails to see that there is nothing irresistible or true about logico-

mathematics and science, that these are contingent, and that therefore these (contingent, arbitrary)

conventions can be utilized for the purposes of coercionby erecting measurable frameworks ofconduct (institutions) that force human conduct and choices into measurable channels or

behavioral straitjackets. The irresistibility of mathesis can ec-sist only as a value, as truth, and

therefore as a will to truth that is internalized to coerce human behaviour. This is the

necessity of mathesis precisely, a restriction or channeling of human freedom understood

not ontologically (as contingency, which is categorically not, and can-not be affected by mathesis)

but ratherpolitically.
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The negatives Denkenunderstands free-dom as thebattleground of conflict between wills. For

Weber, for instance, the individual will acts freely if it acts rationally; and rationality is

defined as the wills choice of adequate means in pursuit of its own ends. This choice the will

makes is therefore con-ditioned by the choices of other wills in conflict with it. In essence, for

Weber, rationality is the game-theoretic strategy that is chosen by independent and conflicting

willsfreely pursuing their irreconcilable ends or wants whose provision is scarce. The freedom

of the will is de-fined not intrinsically as in the Freiheit of German Idealism but rather

instrumentally in terms of the relationship of given means to projected ends. It is free-dom in

the sense of room to manoeuvre (Ellenbongsraum) - to maneuvre against other wills, that is.

Thus, there can be no freedom of the will in the objective genitive. It is the will that is a

function of free-dom, not the other way around which means that the freedom of the will has

no positive universalistic telos or inter esse, but is rather the op-posite, the contrary of this inter

esse. For the negatives Denken there is no freedom in an ab-solute, idealistic sense: freedom exists

only as contingency, as the opposite of necessity, not of co -ercion - onto-logically, not

politically! And insofar as there is freedom, as in Schopenhauer or Heidegger, this ec-sists only as

transcendence, as a leap of faith, as intelligible freedom (even in Kant), as astutetheology (note the etymological link between theory and theo -logy).

The negatives Denken replaces the Idealist Freiheit which, as we have seen, turns by reason of its

systematicity into a quest for freedomfromthe will, from its arbitrariness, with the

conversion of this teleological freedom into an instrumental free-dom, one that is intended

not as a telos, as an aspiration, but rather as its opposite, as contingence, a mere l ack of

conceptual or material necessity; and thus it conceives of the Will as an antagonistic universal

condition, as the obverse of KantsDinge an sich. The de-struction of the telos of freedom

invites and elicits the destruction of any system, of any teleological rule by means of the

exception. For thenegatives Denken the exception is not what con-firmsthe rule, not Hegelsnegation that is meaningfully re-absorbed by the negation of the negation. No such repechage

is possible. Instead, it is the exception that determines the very essenceof the rule, the truth of

the system, by de-fining its limits. Schmitt quotes from Kierkegaard (in PT, p15): The exception

explains the general *the rule, the system+ and itself. Yet if the exception explains the general,

it can do so only if it de-structs the general or rule or system if it negates the system as a

totality, as truth. Any attempt to erect the system to a universal application as the

Sozialismus seeks to do in politics will result only in the suppression of any free-dom that

remains beyond the grasp of the system and within the purview of the exception. Schmitt writes

(p15):

It would be consequent rationalism to say that the exception proves nothing and thatonly the normal can be the object of scientific interest. The exception confounds theunity and order of the rationalist scheme.


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Here the negatives Denkencan conceive of the will only as a destructive force that works or

uses the world only in the sense of consuming it because the opposite, the will and

itsArbeitas the creation of wealth, would entail the possibility of a common-wealth, of

an inter essecommon to all wills, and not merely a subjective greed-dom orappetitus. This de-

struction of truth, of the telos of freedom, entails also the de-struction of Reason and the Ratio

as the summum bonum of humanity, as the Platonic Good. In this perspective, not only can the

Logic not be a science as in Hegel and even in Kant where synthetic a priori judgements are

made possible by Reason, but it becomes a mere instrument of the intellect this last

understood as mere perceptions or sensations (Empfindungen) in accordance with causality and

the principle of sufficient reason. Yet in much of the negatives Denken, from Schopenhauer to

Weber for instance, the attachment to science and rationality (even when conceived as

instrumental) remains steadfast. We have seen that Nietzsche ridicules this Schopenhauerian

atavistic attachment to scientific and logical rationality, although it was his Educator who

first insisted on the purely instrumental, non-theological, ontological status of logic (see G.

Piana, Commenti su Schopenhauer., 2). Schmitt remains attached to this juridical notion of the

exception:

That a neo-Kantian like Kelsen does not know what to do with the exception is obvious.But it should be of interest to the rationalist that the legal system itself can anticipate theexception and can suspend itself.But how the systematic unity and order cansuspend itself in a concrete case is difficult to construe, and yet it remains a juristicproblem as long as the exception is distinguishable from a juristic chaos, from any kindof anarchyFrom where does the law obtain thisforce, and how is it logically

possible [m.e.] that a norm is valid except for one concrete case that it cannot factuallydetermine? (p15)

We saw earlier in our Weberbuch that Bobbio moves the same objection to Weber and Kelsen

against the neo-Kantian determination of the Norm and its sociological implications the fact

that Norm must include also the notion of apparatus or coaction wherewith it can be en-

forced. This calls into question the notion of the State, which Schmitt so far does not expla in. For

the state of exception is one that, like the Hobbesian and Schopenhauerian and Nietzschean, calls

into question the entire socio-ontological foundation of the state and society, and not merely the

concept of a juridical legal order. Schmitt correctly identifies the two moments of the legal

order the norm, what gives legitimacy to the legal order, and the decision, which gives effect

to the legal order when it has legality. But the two moments legitimacy and norm on one

side and legality and decision on the other remain distinct and separate to the point that they

are aporetic and irreconcilable: this is the reality that the exception and the state of exception

expose, regardless of whether the state of exception is an organized stat e or a state of anarchy!By pre-serving the conceptual legitimacy of the state as an entity Schmitt has a -voided the

question that he had posed himself originally: - that is, how can a state exist as the foundation

of a legal order founded on a norm when in fact the exception shows that it has no socio-

ontological foundation?


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A jurisprudence concerned with ordinary day-today

questions has practically no interest in the concept of sovereignty.

Only the recognizable is its normal concern; everything

else is a "disturbance." Such a jurisprudence confronts the extreme

case disconcertedly, for not every extraordinary measure,not every police emergency measure or emergency decree, is

necessarily an exception. What characterizes an exception is principallyunlimited authority, which means the suspension of the

entire existing order. In such a situation it is clear that the state

remains, whereas law recedes. Because the exception is differentfrom anarchy and chaos, order in the juristic sense still prevails even if it is not of the ordinary kind. (PT, p13)

Let us recall that even for general equilibrium theory in economics it is those disturbances or

noise that challenge the validity of the theory. Schmitt does well to challenge normal

jurisprudence (legal positivism in large part). But he is wrong to insist on the legality of the

state of exception and of its political State because the exception challenges both normality aswell as its enforcer, the State, whose entire legitimacy and legality is destroyed by the exception!

The existence of the state is undoubted proof of its superiorityover the validity of the legal norm. The decision frees itself fromall normative ties and becomes in the true sense absolute [a legibus soluta! Freed from laws].

Thestate suspends the law in the exception on the basis of its right

of self-preservation, as one would say. The two elements of theconcept legal orderare then dissolved into independent notionsand thereby testify to their conceptual independence. Unlike the

normal situation, when the autonomous moment of the decisionrecedes to a minimum, the norm is destroyed in the exception. (p13)

In fact, more than just the norm is destroyed by the exception: the legitimacy and legality of the

legal order and of its State is destroyed as well and our task is to find out how this can be so

and why.

The exception remains, nevertheless, accessible to jurisprudence [14]

because both elements, the norm as well as the decision, remainwithin the framework of the juristic.

It would be a distortion of the schematic disjunction between

sociology and jurisprudence if one were to say that the exceptionhas no juristic significance and is therefore "sociology." The

exception is that which cannot be subsumed; it defies general

codification, but it simultaneously reveals a specifically juristicelement - the decision in absolute purity. The exception appears


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in its absolute form when a situation in which legal prescriptions

can be valid must first be brought about. Every general norm

demands a normal, everyday frame of life to which it can befactually applied and which is subjected to its regulations. The

norm requires a homogeneous medium. This effective normal

situation is not a mere "superficial presupposition" that a juristcan ignore; that situation belongs precisely to its immanent validity.There exists no norm that is applicable to chaos. For a

legal order to make sense, a normal situation must exist, and

he is sovereign who definitely decides whether this normal situationactually exists.

All law is "situational law." The sovereign produces and guarantees

the situation in its totality. He has the monopoly over this

last decision. Therein resides the essence of the state's sovereignty,which must be juristically defined correctly, not as the monopoly

to coerce or to rule, but as the monopoly to decide. The exception

reveals most clearly the essence of the state's authority. Thedecision parts here from the legal norm, and (to formulate it

paradoxically) authority proves that to produce law it need not

be based on law. (pp13-4)

The fact that a legal order requires the legitimacy of the norm and the legality of the

decision does not mean that, once the exception obtains, this exceptional decision rem ains

within the framework of the juristic, because that begs the question of why the juristic brought

about a situation in which the existing legal order could be suspended to allow the decision

on the exception on which, Schmitt tells us, sovereignty is founded. Sovereignty, but not

necessarily authority! This is why Schmitt is wrong to affirm as he does above that

[t]he exception reveals most clearly the essence of the state's authority. The

decision parts here from the legal norm, and (to formulate itparadoxically) authority proves that to produce law it need not

be based on law.

On the contrary, we say, the decision on the exception actually puts in question (!) the

Statesauthoritybecause the State could not have come to be a State of exception had itsauthority not been seriously undermined in the society governed by its legal order! The fact

that Schmitt feels impelled to introduce without further explanation the novel notion

of authorityto prove that to produce law *the State+ need not be based on law is further

evidence of his confusion on this point.


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Schmitts analysis of the legal order as characterized by norm and decision - which in turn gives

rise to the division of jurisprudential doctrines into normativist and decisionist is analogous to

our earlier discussion of the notion of arbitrium which, in its moment as arbitration, involves

an element of judgement founded on rational principles, but then in its arbitrary moment is

characterized by the actual decision which is no longer based on rational principles but rather

resides with the actual person (or will) responsible for making that decision. Irrespective of

how this responsible person is appointed or charged with making a decision, the ultimate

arbitrariness of the process cannot be gainsaid. This is the limit of Weberian rationality (discussed

by Schmitt on p27), one whose formal properties, in the absence of any substantive element

of humaninter esse, must ultimately be founded on irrational principles. This salient point is made

quite validly by Lowith in his review of Schmitts jurisprudence because Schmitt, unlike

Nietzsche, never moves beyond the challenge of the rule (the rationalist order or system) and

insists instead on the juristic nature of the decision on the exception. In other words, Schmitt

himself, though challenging normativism and positivism from the wholly other of the

exception or disturbance, simply fails to tackle critically the entire notion of law and of the

legal order. Schmitt understands the political in a Hobbesian sense the state of nature as

a status belliin which the State does not play a neutral role but an interested one that includes

its self-preservation. But the elision of the complex transition from individuals to association to

State orres publica or common-wealth is never outlined or even tackled by Schmitt who simply

hypostatizes the State uncritically as an Idol. This is the basis of Lowiths critique, although he

focuses on the role of the individual in any association that becomes a legal order with a State.

El puro decisionismo, tal como fue defendido de manera clsica

por Hobbes, presupone un "desorden" que slo puede convertirse

en un orden por medio de la decisin; esta decisin aparece, pero ahora

tambin ella misma, como una decisin para una "vida comunitaria"ordenada, cuya expresin jurdica es el pensamiento del orden

y ya no el pensamiento en el sentido de mera decisin.83 (p77 in Heidegger)

In what Schmitt calls the age of neutralization, the terminus ad quem of romanticism is to attain

the realization of the system so as to eliminate conflict from social life and with itto

neutralizethe political. This is the aim of all scientism and rationalism. But by the political,

Schmitt means conflict, its ineluctability even and especially in the state of nature. Hobbes saw

the political as the way out of the state of nature, which he conceived of as pre-political. His

starting point was the in-dividuum, just like the point in Euclid, and its self-interest, which

consisted principally of the a-voidance of death and the pre-servation of life. This is the

foundation of the commonwealand therefrom, mechanically or more geometrico, of the

common-wealth, of the State. Schmitt instead starts with the State as an interested party in what

is the political state of nature, which, contrary to Hobbes, does not begin with individual self-

interest but rather with the division of humanity into friends and foes. For Schmitt therefore

the state of nature is notpre-political, but rather the very essence of the political. (Cf. the famous

review of Schmitt by Leo-Strauss.)


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This is why the State is not and cannot be wholly other or neutral, like the Protestant God or

the State of Law of Political Economy. The State does not stand, as in Hobbes and the liberal

tradition, au dessus de la melee: it is an interest in society; its interest is the preservation of itself as

state, as the legal order. And this preservation depends on a political decision, on

sovereignty that is not assigned by law but that is rather the very content of law.

To be sure, Protestant theology

presents a different, supposedly unpoliticaldoctrine, conceivingof God as the "wholly other," just as in political liberalism the

state and politics are conceived of as the "wholly other." Wehave come to recognize that the political is the total, and as a

result we know that any decision about whether something is

unpoliticalis always apoliticaldecision, irrespective of who decides

and what reasons are advanced. This also holds for the question

whether a particular theology is a political or an unpolitical theology. (p2)

As the defensor pacis (Marsilius), the State is not the pro-duct of the con-vergence or con-vention

of individual self-interests as found in the state of nature (the degree zero of politics). Rather, the

State is a direct product of the conflict, of the di-vergence of these self-interests so that the State

remains conceptually tied to the state of nature it does not transcend it. There is no meeting of

the minds or wills upon which the State can be founded; rather, the State is the sovereign that

can preserve social peace not by mediating or reconciling the conflicting interests of the state

of nature, but rather by ensuring that friends keep the foes in check. The State is not a pro -

duct of law, and thence sub-ordinate to law. Instead, the State as sovereign determines the

content of the law, it does not ascertain it; it does not find it; it creates it. This is contrary

to the legal positivism of Kelsen and Krabbe that Schmitt sternly eschews:

[For Krabbe, t]he state is confined exclusively to producing law. But thisdoes not mean that itproduces the content of law. It does nothingbut ascertain the legal value of interests as it springs from the

people's feeling or sense of right. Therein resides a double limitation:

first, a limitation on law, in contrast with interest or welfare,in short, with what is known in Kantian jurisprudence as "matter";second, a limitation on the declaratory but by no means constitutive

act of ascertaining. I will show that the problem of lawas a substantial form lies precisely in this act of ascertaining. (PT, p23)

The genius of Hobbes was to posit the alienation of personal freedom (the freedom ofthe will) for

the sake of the preservation of life: this last is what supplies the con-ventum, the agreement on


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which the State as common wealth can be erected consistently the systemor order or

freedomfromthe will. This is the truth, the rationalistinter esseof Hobbess political theory

that is exalted in all the liberalist interpretations of his theory (starting with Leo Strauss). But

for Schmitt, no such inter esse exists or can exist because the State is not super partes; it is a

partisan that de-fines the political boundary between friend and foe, a boundary that is

absolutely inescapable not merely in foro externo, with regard to other, foreign States, but also and

above all with regard to the conflicts internal to the state, in foro interno. And herein lies the

paramount importance of the exception. The State, or the sovereign, is he who decides on the

exception. This de-cision is as I now style it an incision in time: it is a pivotal point that

arbitrarily, not rationally or systematically or formally, founds thebattleground of politics

and thusprotects and preserves the social peace. Protection that must be traded for obedience:

not (!) in a con-sensual manner; only in an authoritarian fashion.

Among the newer representatives of association theory is KurtWolzendorff, who has tried to use the theory to solve "the problem

of a new epoch of state. Among his numerous works,'^ his lastis of the greatest interest here. Its starting point is that the stateneeds law and law needs the state; but "law, as the deeper

principle, holds the state in check in the final analysis." The state

is the original power of rule, but it is so as the power of order,as the "form" of national life and not an arbitrary force appliedby just any authority. What is demanded of this power is thatit intervene only when the free individual or associational act

proves to be insufficient; it should remain in the background asthe ultima ratio. What is subject to order must not be coupledwith economic, social, or cultural interests; these must be left to

self-government. That a certain "maturity" belongs to self-government

could, incidentally, make Wolzendorffs postulatesdangerous, because in historical reality such historical-pedagogicproblems often take an unexpected turn from discussion to dictatorship.WolzendorfF's pure state confines itself to maintaining

order. To this state also belongs the formation of law, becauseall law is simultaneously a problem of the existence of the state

order. The state should preserve law; it is "guardian, not master,"guardian, not a mere "blind servant," and "responsible and ultimate

guarantor." Wolzendorff sees in the idea of soviets anexpression of this tendency to associational self-government, to

confining the state to the "pure" function that belongs to it.

I don't believe that Wolzendorff was aware of how close hecame with his "ultimate guarantor" to the authoritarian theory

of the state, which is so completely antithetical to the associational

and democratic conception of the state. This is why his last work,

compared with those of Krabbe and other representatives of the

association theory mentioned, is particularly important. It focuses

the discussion on the decisive concept, namely, that of the formin its substantive sense. The authority of the order is valued sohighly, and the function of guarantor is of such independence,


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that the state is no longer only the ascertainer or the "externally

formal" transformer of the idea of law.The problem that arises

is to what extent, with legal-logical necessity, every ascertainmentand decision contains a constitutive element, an intrinsic valueof form. (PT, pp25-6)

It is the maturity of the association (theGemeinschaft of Tonnies, Gierke) that Schmitt

disputes. Only the State, by protecting its friends, can ensure that its foes do not subvert

the legal order. The formal or normative (neo-Kantian) approach to the legal order can be

counterproductive or even self-destructive when its formal guarantees (Constant) are exploited

by the foes of the State so as to undermine the authority of the ultimate guarantor, the State.

It is at that precise stage that the State must declare a state of exception, suspend the existing

legal order, and take all necessary actions to protect its friends and re -establish a fresh legal

order or restore the old one. There is no neutrality in the State: the State must decide when a state

of exception exists. This exception and the decision that enacts it challenge the normative

approach to law and the legal order by ex-posing the political or substantive rather thanjurisprudential or formal foundations of all legal orders.

The objections that those most erudite liberal critics of Schmitt, from Leo Strauss to Lowith, move

to his theory of politics allpresume the existence of a Ratio-Ordo that legally-logically

necessarily requires the State to be subordinate to the law, whose content is then

supposed to emerge or spring from the community. Yet, if thiscomunitas actually existed,

if its truth were real, then there would be no need of a State in the first place! Contra Schmitt,

however, it can be said that he fails to explain how a State can come into being at all! Yes, indeed:

a decision may be auf Nichts gestellt be taken out of nothing, that is, be the product of

pure arbitrium -, but not a State, because a State is composed of in-dividuals whose self-interests must somehow converge so as to form a friend-ship, a group of friends opposed to

their foes: and this con-vergence or conventum, must have a con-ventional basis that as such

can be recognized by all parties to it. Schmitt makes the fundamental error of thinking that there

can be an intrinsic value of form (see above), that form and substance can meet in the

decision because the decision is exceptional with respect to what is the normal legal order,

and seeks to preserve it. But if this were correct, then it would be the normal that explains the

exception, and not the other way around as Schmitt had argued earlier! His notion of

decision is simply too formal, it lacks sub-stance, and therefore cannot provide a proper

account of the State even one that challenges the ratio or telos of its classical theories.

Friday, 17 August 2012

Freedom and Necessity in the Negatives Denken

Freedom and Necessity - Schmitt and the Exception

A. The Exception and the Rule
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A theory is an explanation of life and the world that attempts to encompass them in their

totality by con-necting their parts in a systematic manner that is internally consistent

and that, through this consistentnexus rerum, achieves theadaequatio rei et intellectus of

Scholastic fame. It follows that a theory must connect the relationship of the parts to one another

in a manner consistent with the systematicity of the whole. Consequently, regardless of the

content of the theory, the con-nections between parts and of the parts in their totality must be

necessary. This necessity removes any freedom that the parts may have had in relation to

the totality in such a manner that the theory admits of no exception that is not re -conducible to

or con-sistent with the totality and its systematicity.

This logicalnotion of freedom as the opposite of logical necessity has nothing to do with

thepolitical notion of freedom. Indeed, political freedom is not analogous to contingency or

chance, it is instead their opposite and in fact ought not to be called freedom at all! Freedom

is a political notion the opposite of coercion (Arendt in LotM). Oncethe notion of freedom

is reduced to the opposite of logical necessity, then it becomes mere contingency and is

reduced to an onto-logical problem. The fact is that, as we are demonstrating here, there is no

such thing as logical necessity so that all truths are contingent. But the fact that truth canbe understood as logical or scientific necessity- that the necessity of logic or science is what

makes it true - and that freedom can be mistaken for contingency or chance means that

truth or logico-mathematical necessity can be abused or be used instrumentally for the purpose

of political coercion! By this process, freedomofthe will can be mistaken for a telos that, by

positing the systematicity of life and the world as a totality becomes a quest for

freedomfromthe will which is what the negatives Denken claims whilst at the same time, by

denying the existence of freedom in a political sense (because it understands freedom only

ontologically), it denies the possibility of political freedom or else reduces it to contingency, to

superfluity (Sartres de trop, Heideggers de-jection and Dasein as pro-ject). Freedom is

understood then as universal Eris, as total conflict so that freedom is no longer a function of the

will but the will becomes a function of freedom understood as cosmic contingency(Schelling).

It is this reduction of political freedom to contingency or chance to free-dom - that is clearly

unacceptable in the negatives Denken. Yet the valuable and valid aspect of the remarkably novel

and revealing approach to freedom taken by the negatives Denken is that it re-introduces the

notion of decision (in Schmitt, resolve *Gewiss+ in Nietzsche, and resoluteness or dis -

closure *Entschlossenheit+ in Heidegger), and therefore of the effect of one will coming into

conflict with another, which is the essence of the Political.

Arendt correctly distinguishes between freedom (political) and contingency (ontological),

pointing to their discrete opposites coercion or necessity, and logical necessity or

irresistibility. But she fails to see that there is nothing irresistible or true about logico-mathematics and science, that these also are contingent and conventional, and that therefore

these (contingent, arbitrary) conventions can be utilized for the purposes of coercion by erecting

measurable frameworks of conduct (institutions) that force human conduct and choices into

measurable channels or behavioral straitjackets. The irresistibility of mathesis can ec-sist only

as a value, as truth, and therefore as a will to truth that is internalized to coerce human

behaviour. This is the necessity of mathesis precisely, a restriction or channeling of human


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freedom understood not ontologically (as contingency, which is categorically not, and can-not be

affected by mathesis) but ratherpolitically.

The negatives Denkenunderstands free-dom as thebattleground of conflict between wills. For

Weber, for instance, the individual will acts freely if it acts rationally; and rationality is

defined as the wills choice of adequate means in pursuit of its own ends. This choice the will

makes is therefore con-ditioned by the choices of other wills in conflict with it. In essence, for

Weber, rationality is the game-theoretic strategy that is chosen by independent and conflicting

willsfreelypursuing their irreconcilable ends or wants whose provision is scarce. The

freedom of the will is de-fined not intrinsically as in the Freiheit of German Ide alism but

rather instrumentally in terms of the relationship of given means to projected ends. It is free-

dom in the sense of room to manoeuvre (Ellenbongsraum) to manoeuvre against other wills,

that is. Thus, there can be no freedom of the will in the objective genitive. It is the will that is a

function of free-dom, not the other way around which means that the freedom of the will has

no positive universalistic telos or inter esse, but is rather the op-posite, the contrary of this inter

esse.

This crucial kernel of WebersWissenschaftslehre is clearly perceived by the great jusnaturalistphilosopher Leo Strauss in a passage that is worth quoting for its impressive perspicacity:

Let us assumethat we had genuine knowledge of right and wrong, orof the Ought, or of the true value system. That knowledge,while not derived from empirical science, would legitimately direct all empirical social science; it would be the foundationof a l l empirical social science. For social science is meant to be of practical value. It tries to find means for given ends. For thispurpose it has to understand the ends. Regardless of whetherthe ends are " g i v e n " in a different manner from the means, the

end and the means belong together; therefore, "the end belongsto the same science as the means."9 If there were genuineknowledge of the ends, that knowledge would naturally guideall search for means. There would be no reason to delegateknowledge of the ends to social philosophy and the search forthe means to an independent social science. Based on genuineknowledge of the true ends, social science would search for theproper means to those ends; it would lead up to objective andspecific value judgments regarding policies. Social sciencewould be a truly policy-making, not to say architectonic, sciencerather than a mere supplier of data for the teal policymakers. The true reason why Weber insisted on the ethically

neutral character of social science as well as of social philosophy was, then, not his belief in the fundamental opposition ofthe Is and the Ought but his belief that there cannot be any genuine knowledge of the Ought. He denied to man any science, empirical or rational, any knowledge, scientific or philosophic,of the true value system: the true value system doesnot exist; there is a variety of values which are of the same42 NATURAL RIGHT AND HISTORYrank, whose demands conflict with one another, and whose


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conflict cannot be solved by human reason. Social science orsocial philosophy can do no more than clarify that conflict andall i t s implications; the solution has to be left to the free, nonrationaldecision of each individual.I contend that Weber's thesis necessarily leads to nihilism orto the view that every preference, however evil, base, or insane,

has to be judged before the tribunal of reason to be as legitimate as any other preference. (L. Strauss in Natural Right and History)

For the negatives Denkenthere is no freedom in an ab-solute, idealistic sense: freedom exists

only as contingency, as the opposite of necessity, not of co -ercion - onto-logically, not

politically! And insofar as there is freedom, as in Schopenhauer or Heidegger, this ec-sists only as

transcendence, as a leap of faith, as intelligible freedom, as th e ab-strusion of the Will from

the world either as self-awareness (even in Kants astute theology *note the etymological link

between theory and theo-logy+) or as the possibility of nothing-ness, as pro-ject (as in

HeideggersDa-sein).

The negatives Denken replaces the Idealist Freiheit which, as we have seen, turns by reason of its

systematicity into a quest for freedomfromthe will, from its arbitrariness, with the

conversion of this teleological freedom into an instrumental free-dom, one that is intended

not as a telos, as an aspiration, but rather as its opposite, as decision, and therefore as

contingence, a mere lack of conceptual or material necessity; and thus it conceives of the Will

as an antagonistic universal condition, as the obverse of KantsDinge an sich. The de-struction

of the telos of freedom and its reduction to conflictual and contingent free -dom invites and

elicits the destruction of any system, of any teleological rule by means of the exception.

The only real decision possible isultimatelya decision on the exception. For the negatives

Denken the exception and the decision it entails necessarily is not what con-firms the rule, not

Hegels negation that is meaningfully anddialectically re-absorbed within the rational System or

Science of Logic by the negation of the negation. No such repechage is possible for

the negatives Denken. Instead, it is the exception that determines the very essence of the rule, thetruth of the system, by de-fining its limits. Schmitt quotes from Kierkegaard (in PT, p15): The

exception explains the general *the rule, the system+ and itself. Yet if the exception explains the

general, it can do so only if it de -structs the general or rule or system if it negates the

system as a totality, as truth. Any attempt to erect the system to a universal application

as the Sozialismus seeks to do in politics with the harmonious State-less society and in politics

with the just remuneration of labour value will result only in the suppression of any free-

dom that remains beyond the grasp of the system and within the purview of the exception.

Schmitt writes (p15):

It would be consequent rationalism to say that the exception proves nothing and thatonly the normal can be the object of scientific interest. The exception confounds theunity and order of the rationalist scheme.

Here the negatives Denken can conceive of the will only negatively as a destructive force that

works or uses the world only in the sense of consuming it because the opposite, the will

and itsArbeitas the creation of wealth, would entail the possibility of a common-wealth, of

an inter essecommon to all wills, and not merely a subjective greed-dom orappetitus. This de-

struction of truth, of the telos of freedom, entails also the de-struction of Reason and the Ratio


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as the summum bonumof humanity, as the Platonic Good. (Lukacss indictment of this tragic

denouement into what he calls nihilism inDer Zerstorung der Vernunft and his late-Romantic

championing of Reason ispathetic in the extreme and serves only to highlight the Wille zur

Ohnmacht of theLinkskommunismus at the time of the Weimar Republic.) In this perspective, not

only can the Logic not be a science as in Hegel and even in Kant where synthetic a

priorijudgements are made possible by Reason, but it becomes a mere instrument of the

intellect this last understood as mere perceptions or sensations (Empfindungen) in accordance

with causality and the principle of sufficient reason. Yet in much of the negatives Denken, from

Schopenhauer to Weber for instance, the attachment to science and rationality (even when

conceived as instrumental) remains steadfast. We have seen that Nietzsche ridicules this

Schopenhauerian atavistic attachment to scientific and logical rationality, although it was his

Educator who first insisted on the purely instrumental, non-theological, ontological status of

logic (see G. Piana, Commenti su Schopenhauer., 2).

Schmitt remains attached to this juridical notion of the exception:

That a neo-Kantian like Kelsen does not know what to do with the exception is obvious.

But it should be of interest to the rationalist that the legal system itself can anticipate theexception and can suspend itself.But how the systematic unity and order cansuspend itself in a concrete case is difficult to construe, and yet it remains a

juristic problem as long as the exception is distinguishable from a juristic chaos,from any kind of anarchyFrom where does the law obtain thisforce, and how isitlogically possible [m.e.] that a norm is valid except for one concrete case that it cannotfactually determine? (p15)

We saw earlier in our Weberbuch that Bobbio moves the same objection to Weber and Kelsen

against the neo-Kantian determination of the Norm and its sociological implications the fact

that Norm must include also the notion of apparatus or coaction wherewith it can be en-

forced. This calls into question the notion of the State, which Schmitt so far does not explain. For

the state of exception is one that, like the Hobbesian and Schopenhauerian and Nietzschean, callsinto question the entire socio-ontological foundation of the state and society, and not merely the

concept of a juridical legal order. Schmitt correctly identifies the two moments of the legal

order the norm, what gives legitimacy to the legal order, and the decision, which gives effect

to the legal order when it has legality. But the two moments legitimacy and norm on one

side and legality and decision on the other remain distinct and separate to the point that they

are aporetic and irreconcilable: this is the reality that the exception and the state of exception

expose, regardless of whether the state of exception is an organized state or a state of anarchy!

By pre-serving the conceptual legitimacy of the state as an entity Schmitt has a -voided the

question that he had posed himself originally: - that is, how can a state exist as the founda tion

of a legal order founded on a norm when in fact the exception shows that it has no socio -

ontological foundation?

If measures undertaken in an exception could be circumscribedby mutual control, by imposing a time limit, or finally, as in the liberal constitutional procedure governing a state of siege, byenumerating extraordinary powers, the question of sovereigntywould then be considered less significant but would certainly not be eliminated. Ajurisprudence concerned with ordinary day-to-dayquestions has practically no interest in the concept of sovereignty.


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Only the recognizable is its normal concern; everythingelse is a "disturbance." Such a jurisprudence confronts the extremecase disconcertedly, for not every extraordinary measure,not every police emergency measure or emergency decree, is necessarily an exception. What characterizes an exception is principallyunlimited authority, which means the suspension of the

entire existing order. In such a situation it is clear that the state remains, whereas law recedes. Because the exception is differentfrom anarchy and chaos, order in the juristic sense still prevails even if it is not of the ordinary kind. (PT, pp13-13)

Let us recall that even for general equilibrium theory in economics it is those disturbances or

noise that challenge the validity of the theory. Schmitt does well to challenge normal

jurisprudence (legal positivism in large part). But he is wrong to insist on the legality of the

state of exception and of its political State because the exception challenges both normality as

well as its enforcer, the State, whose entire legitimacy and legality is destroyed by the exception!

The existence of the state is undoubted proof of its superiority

over the validity of the legal norm. The decision frees itself from all normative ties and becomes in the true sense absolute. Thestate suspends the law in the exception on the basis of its rightof self-preservation, as one would say. The two elements of theconcept legal orderare then dissolved into independent notionsand thereby testify to their conceptual independence. Unlike thenormal situation, when the autonomous moment of the decisionrecedes to a minimum, the norm is destroyed in the exception. (p13)

In fact, more than just the norm is destroyed by the exception: the legitimacy and legality of the

legal order and of its State is destroyed as well and our task is to find out how this can be so

and why. It is therefore incongruous and inconsistent with his realist-decisionist approach to

political theory for Schmitt to insist that *in+ the normal situation,


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factually applied and which is subjected to its regulations. Thenorm requires a homogeneous medium. This effective normalsituation is not a mere "superficial presupposition" that a juristcan ignore; that situation belongs precisely to its immanent validity.There exists no norm that is applicable to chaos. For alegal order to make sense, a normal situation must exist, andhe is sovereign who definitely decides whether this normal situationactually exists. (p13)

But the exception assumes paramount importance in Schmitts unquestionably provocative

reformulation of the theory of the state and of legal order not for the occurrence of the sovereign

deciding that a normal situation actually exists, but rather for deciding the opposite that a

normal situation does notexist and that a state of exception is declared!The extent of

Schmitts confusion is amply demonstrated by the suite to this paragraph:

All law is "situational law." The sovereign produces and guaranteesthe situation in its totality. He has the monopoly over this

last decision. Therein resides the essence of the state's sovereignty,which must be juristically defined correctly, not as the monopolyto coerce or to rule, but as the monopoly to decide. The exceptionreveals most clearly the essence of the state's authority. Thedecision parts here from the legal norm, and (to formulate itparadoxically) authority proves that to produce law it need notbe based on law. (pp13-4)

The fact that a legal order requires the legitimacy of the norm and the legality of the

decision does not mean that, once the exception obtains, this exceptional decision remains

within the framework of the juristic, because that begs the question of why the juristic brought

about a situation in which the existing legal order could be suspended to allow the decision

on the exception on which, Schmitt tells us, sovereignty is founded. Sovereignty, but notnecessarily authority! Yes, indeed, *t+he decision parts here from the legal norm, and (to

formulate it paradoxically) authority proves that to produce law it need not be based on law.

But in parting from the legal norm the decision actually radically questions, challenges and

finallynegates the legal-logical foundations of both the legal norm and of the States authority as

well! The decision on the exceptionactually negates (!) the Statesauthority except in its meaning as

coercion and coaction because the State could not have come to be a State of exception had

its authority not been seriously undermined in the society governed by its legal order! The fact

that Schmitt feels impelled to introduce without further explanation the novel notion

of authorityto prove that to produce law *the State+ need not be based on law is further evidence

of his confusion on this point.

B. The Decision and the Will

Schmitt perceives the difficulty, which explains why he seeks to compromise his formulation of

the pivotal relation of exception and decision:


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The assertion that the exception is truly appropriate for thejuristic definition of sovereignty has a systematic, legal-logical foundation.The decision on the exception is a decision in thetrue sense of the word. Because a general norm, as representedby an ordinary legal prescription, can never encompass a total exception, the decision that a real exception exists cannot therefore

be entirely derived from this norm. (PT, pp5-6)

Yet, if thedecision that a real exception exists cannot therefore be entirely derived from this

*general+ norm, then no decision on the exception can ever be a decision in the true sense of the

word because its decisiveness, its quiddity or facticity is then violated or vitiated by the

fact that it ispartially derived from the general norm that re-conduces it to the sphere of the

juristic. Schmitt has here resurrected the neo-Kantian conception of law and the State. That

explains why he is then impelled to resort to the notion of sovereignty as a systematic, legal-

logical foundation quite an exceptional (!) claim for the theoretician of the exception as the

subversion of rational systems! Again, in the attempt to recuperate this systematic-rational

concept of sovereignty which must bejuristically defined correctly! - for the State within the

homology of the neo-Kantian legal form, Schmitt is even prepared to call into play (in the

tradition of Jaspers and Lukacs) the notion of totality. - All of which is antinomic to the notion

of exception that Schmitt champions in this work!

Schmitts analysis of the legal order as characterized by norm and decision - which in turn gives

rise to the division of jurisprudential doctrines into normativist and decisionist is analogous to

our earlier discussion of the notion (in The Philosophy of the Flesh) of arbitrium which, in its

moment as arbitration, involves an element of judgement founded on rational principles

(understood even in a Weberian fashion), but then in its arbitrary moment is characterized by

the actual decision which is no longer based on rational legal-logical or formal principles but

rather resides with the actual person (or will) responsible for making that decision. Irrespective

of how this responsible person is appointed or charged with making a decision, the ultimatearbitrariness of the process as well as of the content of the decision cannot be gainsaid.

Schmitt incisively proves this argument by pointing out that even a wrong or false decision

remains a valid decision from this perspective!

That the legal idea cannot translate itself independently can be is evident from thefact that it says nothing about who should apply it.That it is the instance ofcompetence that renders a decision, makes the decision relative, and in certaincircumstances absolute and independent of the correctness of its content.A legalvalidity is attributed to a wrong and faulty decision. The wrong decision assumes aconstitutive element precisely because of its falseness. (PT, p31)

It is thefact the substantive content of a decision, its effectuality that even a false or

wrong decision is still a valid decision that shows conclusively how dependent the legal idea

or norm is on the authority of the person who decides which the legal idea as such

cannotindicate. Schmitts devastatingly blunt argument here is entirely identical with Nietzsches

apocalyptic remark in Wille zur Macht that seen from the moral viewpoint, the world is

false!What is false, of course, is the moral viewpoint and not the world, be cause it is the world

thatenables and constitutes the moral viewpoint. Similarly with the legal norm, it is the norm and


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not the decision, not the personality of the decision, the Sovereign, that can be false not the

other way around!

Kelsen solved the problem of the concept of sovereignty bynegating it. The result of his deduction is that "the concept ofsovereignty must be radically repressed." This is in fact the old

liberal negation of the state vis-i-vis law and the disregard ofthe independent problem of the realization of law. This conceptionhas received a significant exposition by Hugo Krabbe. His theoryof the sovereignty of laws rests on the thesis that it is not thestate but law that is sovereign. (PT, p21)

This is the limit of Weberian rationality (discussed by Schmitt on p27), one whose formal

properties, in the absence of any substantive element of humaninter esse, must ultimately be

founded on what are in its own terms irrational principles. This salient point is made quite

validly by Lowith in his review of Schmitts jurisprudence because Schmitt, unlike Nietzsche,

never moves beyond the challenge of the rule (the rationalist order or system) and insists

instead on the juristic nature of the decision on the exception. In oth er words, Schmitt himself,though challenging normativism and positivism from the wholly other of the exception or

disturbance, simply fails to tackle critically the entire notion of law and of the legal order.

Schmitt understands the political in a Hobbesian sense the state of nature as a status belli in

which the State does not play a neutral role but an interested one that includes its self -

preservation. But the elision of the complex transition from individuals to association to State

orres publica or common-wealth is never outlined or even tackled by Schmitt who simply

hypostatizes the State uncritically as an Idol.

This is the basis of Lowiths critique, although he focuses on the role of the individual in any

association that becomes a legal order with a State.

El puro decisionismo, tal como fue defendido de manera clsica por Hobbes, presupone un "desorden" que slo puede convertirseen un orden por medio de la decisin; esta decisin aparece, pero ahoratambin ella misma, como una decisin para una "vida comunitaria"ordenada, cuya expresin jurdica es el pensamiento del ordeny ya no el pensamiento en el sentido de mera decisin.83 (p77 in Heidegger)

This is the ambivalence in Schmitt: on one hand, the decision is a qualified decision, that is, a

judgement that presupposes a criterion of whether or not an order or normality exists. On

the other hand, the decision, in its arbitrariness, is not subject to any pre-existing criteria

whatsoever it is sheer naked violence. That is why Lowith is both right to criticize Schmittsdecision for being auf Nichts gestellt but at the same time he is wrong because it is this

nothing that founds the violence of the meredecision, its facticity life as exploitation

(Nietzsche). The objections that those most erudite liberal critics of Schmitt, from Leo Strauss to

Lowith, move to his theory of politics allpresume the existence of a Ratio-Ordo that legally-

logically necessarily requires the State to be subordinate to the law, whose content is

then supposed to emerge or spring from the community. Yet, if thiscomunitas actually

existed, if its truth were real, then there would be no need of a State in the first


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place! Contra Schmitt, however, it can be said that he fails to explain how a State can come into

being at all! Yes, indeed: a decision may be auf Nichts gestellt be taken out of nothing, that

is, be the product of purearbitrium -, but not a State, because a State is composed of in-

dividuals whose self-interests must somehow converge so as to form a friend-ship, a group of

friends opposed to their foes: and this con-vergence or conventum, must have a con-

ventional basis that as such can be recognized by all parties to it. Schmitt mak es the

fundamental error of thinking that there can be an intrinsic value of form (see above), that form

and substance can meet in the decision because the decision is exceptional with respect to

what is the normal legal order, and seeks to preserv e it. But if this were correct, then once again

it would be the normal that explains the exception, and not the other way around as Schmitt

had argued earlier! His notion of decision is simply too formal, it lacks sub-stance, and

therefore cannot provide a proper account of the State even one that challenges

the ratio or telos of its classical theories.

And therein lies the paramount importance of the exception. The State, or the sovereign, is he

who decides on the exception. This de-cision is as I now style it an incision in time: it is a

pivotal point that arbitrarily, not rationally or systematically or formally, foundsthebattleground of politics and thus protects and preserves the social peace. Protection that must

be traded for obedience: not (!) in a con-sensual manner, but only in an authoritarian

fashion.

Sovereign is he who decides on the exception.'Only this definition can do justice to a borderline concept.Contrary to the imprecise terminology that is found in popularliterature, a borderline concept is not a vague concept, but onepertaining to the outermost sphere. This definition of sovereigntymust therefore be associated with a borderline case and not withroutine. It will soon become clear that the exception is to be

understood to refer to a general concept in the theory of thestate, and not merely to a construct applied to any emergencydecree or state of siege.

There are two sides to the decision, then two sides of the border-line. One side belongs to the

establishment of the legal norm so that normal decisions can be made as routine. The other

side of the decision, however, is its real foundation, its facticity that simply cannot be com-

prehended as part of the norm, of a rule or order or sy stem or unity or totality, or indeed of

truth. It is this materiality or substantiality of the decision that makes Schmitt invoke Hobbes

approvingly: Auctoritas, non veritas facit legem. The exception, therefore, is the truth of

normality, as Schmitt claims. But as this obverse, as this wholly other of the legal norm, thedecision itself as e-voked by the exception is not and cannot be com-prehended by the norm,

because it lies wholly outsidethe norm! (Recall our discussion of Arendts constituent power

and constituted power in Part Four of the Weberbuch.)The decision on the exception, which is

the mark and seal of sovereignty, is an either -or, an aut-aut thatfounds the legal norm. This

legal norm, in turn, grants legality tothe sovereign but it does not itself have legitimacy. The

legitimacy of the legal norm is its legality but legality cannot legitimate the legal norm. Only

if the law possessed an implicit truth could it found itself, legitimate itself. But it does not: the


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truth of the law is authority, the fact of the decision, its power to coerce, its command,

which cannot be founded on legality but on legitimacy or competence.

The legal prescription, as the norm of decision, only designates how decisions should be made, not who should decide. In the absence of a pivotal authority, anybody can refer to the correctness of the content.

But the pivotal authority is not derived from the norm of decision. Accordingly, the question is that of competence, a question thatcannot be raised by and much less answered from the contentof the legal quality of a maxim. (PT, pp32-3)

*A similar argument, though from rationalist positions, is made by Rafael Agapito in his lengthy and

appreciable introduction to the Spanish translation ofEl Concepto de la Politica. With unusual perspicacity,

Agapito explains how Schmittso keen to supplant the juridic form with the political substance of the

decision succumbs to his own brand of formalism, in that the decision, as an ultimate instance or ultima

ratio, becomes simply an onto-logical category, that of facticity or quidditas (Dass-Sein), and not what

Schmitt intended it to be originally, a historical-substantive andpolitical, as well as part-juridical one. The

merit of Agapitos review and critique of Schmitt is to have seen that the political is not and cannot be

irreconcilable or eristic, as Schmitt and the entirenegatives Denken(its negativity consists largely inthis) presume because at the very least, as in Hobbess version of it as the fear of death (not its

inevitability, as in Heidegger, but its fear), the Political must involve an element of inter-subjectivity, the

foundation, the co-hesion of the polity and the disputandum that it occasions. Yet the vice of his

critique is to posit the requisite inter-subjectivity still in terms of what liesbetween subjects that remain

irreducibly in-dividual, a-tomic and atomized. Consequently, Agapito elevates and even glorifies the

liberal-bourgeois Constitution without looking closely at the effective correspondence of this

Constitution to the will of the people: he approaches the liberal legal order in terms of its own self-

understanding and not in terms of material Constitution which is essentially the critique that Marx

moved against Hegels theory of the State. Agapito pretends to substituteidealistically if not

ideologicallythe arbitrary, conjunctural will of thenegatives Denkenwith the social unity, as against

mere homogeneity of the people that Schmitt refutes, supposedly supplied by a mythical

intersubjective criterion that Agapito recklessly attributes to liberal bourgeois constitutions!

La razn ltima de este dilema ha de buscarse menos en el concepto

mismo de soberana que en cmo se concibe el sujeto de sta:

ste se entiende comnmente como pura voluntad en abstracto,

como voluntad subjetiva_y emprica de los individuos a los que concierne

ese principio democrtico. Se trata en consecuencia de una voluntad

de carcter arbitrario, coyuntural, que no puede fundar ninguna

unidad social. De ah derivan las aporas a que conduce este dilema.

La voluntad poltica (ya sea constituyente o ya sea ordinaria) se define

como poder, porque esa realidad meramente emprica de voluntades

subjetivas y discretas no incluye ningn criterio intersubjetivo,

y en consecuencia no puede dar lugar ms que a la lucha y a laimposicin de posiciones unilateralmente definidas. (Agapito, Intro to El COncepto, p31.)]

For Schmitt, politics means conflict, even to the extent that the sovereignty or authority of the

State is disputed. For Hobbes, political theory entails the end of politics. Auctoritas, non veritas

facit legem: Hobbes admits that his subjects cannot engage in a contractum unionis unless this

becomes im-mediately a contractum subjectionis. But how can this be? What value does life or the

fear of death have in Hobbess theory that can lead out of the bellum civium? There is a glaring


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contradiction here between the truth or Ratio of the preservation of life this inter esse and

the authority that is needed to found the Law of the social contract, and the State with it. This is

quite apart from the inability of Hobbesian theory to explain the distribution of power in a

society, except in a mechanical manner which cannot account for historical transformations. If

a historical state of nature exists, in which life is nasty brutish and short how can the self-

same individuals who populate the state of nature, mere a-toms who do not share anything

except their con-flicting free-doms, agree to exit it?

Hobbes says that power as a Euclidean (geometric) and Galileian-Newtonian (mechanical)

hypothesis can be hypostatized in the State, by rational convention: thus scientific rationality is

comforted by rational free choice: freedom and necessity are reconciled. In Schmitts words, for

Hobbes the machine runs itself! Schmitt and Heidegger reject this possibility as the idealistic

mirage of the era of bourgeois Enlightenment. For Hobbes, infinitely small points can form a line;

for Schmitt instead, more consistently, the line remains a point. For Hobbes, the facticity of

authority does turn into the truth of law and the State through the rational free choice of self-

interested individuals in the state of nature. In Schmitt, instead, the facticity of authority rules

over the law and the State which is why the authority of law and the State (the force of law)must return to the subject of the decision, the command and the in-divisible will of the sovereign

in-dividual.

Words such as order, system, and unityare only circumscriptions ofthe same postulate, which must demonstrate how it can be fulfilled inits purity. It has to be shown how a system can arise on the foundationof a "constitution" (which is either a further tautological circumscriptionof the "unity" or a brutal sociopolitical reality). The systematicunity is, according to Kelsen, an "independent act of juristicperception. "Let us for now disregard the interesting mathematical assumption

that a point must be an order as well as a system andmust also be identical with a norm; let us ask another question:On what does the intellectual necessity and objectivity of thevarious ascriptions with the various points of ascription rest if itdoes not rest on a positive determination, on a command? (p20)

For Schmitt the Euclidean line retains the essential properties of the point, the point cannot

merge into a line except through a meta-physicalprojectio per hiatus irrationalem. The

Sovereign or the State remains an individual, an indivisible will. The Sover-reign may reign but

not rule only in situations or legal orders, from constitutional monarchies to liberal

parliamentary democracies, in which the ultima ratio, the ultimate foundation of authority or

competence is carefully hidden from view. But in the naked brutal reality of the Political theindivisibility of decision and sovereignty cannot be avoided.

The decisive point about Bodin'sconcept is that by referring to the emergency, he reduced hisanalysis of the relationships between prince and estates to asimple either/or.This is what is truly impressive in his definition of sovereignty;by considering sovereignty to be indivisible, he finally settled the


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question of power in the state. His scholarly accomplishment and the basis for his success thus reside in his having incorporated

the decision into the concept of sovereignty.(p8)

This is why the State is not and cannot be wholly other or neutral, like the Protestant God or

the State of Law of Political Economy. The State does not stand, as in Hobbes and the liberal

tradition, au dessus de la melee: it is an interest in society; its interest is the preservation of itself as

state, as the legal order. And this preservation depends on a political decision, on

sovereignty that is not assigned by law but that is rather the very content of law. As the defensor

pacis(Marsilius), the State is for Schmitt not the pro-duct of the con-vergence or con-vention of

individual self-interests as found in the state of nature (the degree zero of politics), even as the

Hobbesian ultima ratio of avoiding death. Rather, the State is a direct product of the conflict, of the

di-vergence of these self-interests so that the State remains conceptually tied to the state of

nature it does not transcend it. There is no meeting of the minds or wills upon which the State

can be founded; rather, the State is the sovereign that can preserve social peace not by

mediating or reconciling the conflicting interests of the state of nature, but rather by ensuring

that friends keep the foes in check. The State is not a pro -duct of law, and thence sub-ordinate to law. Instead, the State as sovereign dete rmines the content of the law, it does not

ascertain the law; it does not find it; it creates it.

In what Schmitt calls the age of neutralization, the terminus ad quem of romanticism is to attain

the realization of the system so as to eliminate conflict from social life and with it to

neutralizethe political. This is the aim of all scientism and rationalism. But by the political,

Schmitt means conflict, its ineluctability even and especially in the state of nature. Hobbes saw

the political as the way out of the state of nature, which he conceived of as pre-political. His

starting point was the in-dividuum, just like the point in Euclid, and its self-interest, which

consisted principally of the a-voidance of death and the pre-servation of life. This is the

foundation of the commonwealand therefrom, mechanically or more geometrico, of the

common-wealth, of the State. As in Euclid, Hobbess point or individuum merges

miraculously into the line of the common weal, of the social contract.Schmitt instead starts

with the State as an interested party in what is the political state of nature, which, contrary to

Hobbes, does not begin with individual self-interest but rather with the division of humanity into

friends and foes. For Schmitt therefore the state of nature is notpre-political, as it is in Hobbes,

but rather the very essence of the political because its bellum civium its conflict between

friend and foe, rather than between atomized self -interested in-dividuals is one in which

even the Sovereign takes part. The Sovereign rules at all times he never simply reigns. (Cf.

the famous review of Schmitt by Leo-Strauss.)

To be sure, Protestant theology

presents a different, supposedly unpoliticaldoctrine, conceivingof God as the "wholly other," just as in political liberalism the state and politics are conceived of as the "wholly other." Wehave come to recognize that the political is the total, and as aresult we know that any decision about whether something isunpoliticalis always apoliticaldecision, irrespective of who decidesand what reasons are advanced. This also holds for the questionwhether a particular theology is a political or an unpolitical theology. (p2)


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Hobbess Leviathan is adeus mortalis because, like a god, it is the incarnation of the Ratio of the

will and therefore it cannot be merely mortal, like any individual, because its mechanistic

scientifichypothesisis sustained by the immortal or divine Ratio of the free will that allows the

reaching of a social contract, of the con-vention. On the other hand, however, Hobbess Sovereign

is a deus mortalisbecause, like that of all sovereigns, its decision is mortal, it is based not on

truth but on authority, that is, on the power possessed by a particular authority or will

and is objectified in a concrete decision or command. Hence, the machinery of the State stands

with the scientific hypothesis and the authority of the will of the Sovereign, whereas theratio of

the convention of free wills stands with the truth (veritas) of the State as the emanation of the

legal order, of the Norm. Here is the fatidic dualism of Soul and Form, Spirit and Machine,

Freedom (contingency) and Necessity (logico-scientific). Schmitt intuits this antinomic dualism

implicit in Hobbesian political and legal theory and genially makes it explicit, as the following

extract reveals:

It is striking that one of the most consequential representatives of this abstract scientific orientation of the seventeenth century [Hobbes]

became so personalistic. This is because as a juristic thinker hewanted to grasp the reality of societal life just as much as he,as a philosopher and natural scientist, wanted to grasp the realityof nature. He did not discover that there is a juristic reality andlife that need not be reality in the sense of the natural sciences.Mathematical relativism and nominalism also operate concurrently.Often he seemed to be able to construct the unity of the state from any arbitrary given point. But juristic thought in thosedays had not yet become so overpowered by the natural sciencesthat he, in the intensity of his scientific approach, should unsuspectinglyhave overlooked the specific reality of legal life inherent in the legal form. The form that he sought lies in the

concrete decision, one that emanates from a particular authority.In the independent meaning of the decision, the subject of thedecision has an independent meaning, apart from the questionof content. What matters for the reality of legal life is who decides. (PT, p34)

Hobbes never completely resiles from the scientific truth of his axioms, because he identifies

truth with the very facticity of authority, so that for him there is no antinomy or apory

between the two. For Hobbes, the truth is not to be found in the theo -logical emanation of laws

but rather in their mechanistic facticity. As Schmitt puts it, the machinery of State the

mortality of the deus mortalis is not determined by the divine, and yet Hobbes knew that the

divinity of thedeus mortalis, the underlying scientific Ratio of the machine, had to be founded

ultimately on the mortal decision! An entirely mechanical State would relegate the mechanical

laws under which it operates from the realm of logico-scientific necessity to that of completecontingency. The Ratio of the State had therefore to be located not in its mechanical make -up

but rather in a free decision whose rationality, however, ends up being no less contingent

than the mechanical laws and rationality of the State!

By contrast, and much more consistently, Schmitt ascribes to the auctoritas of the State a real

substantive ascendancy over the veritas not only of the legal form and norm but of any

scientific reality whatsoever. The Schmittian sovereign remains an in-dividuum, because the


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decision is in-divisible and must rest ultimately on one will: it is this Individualitat of the decision

on the exception what Schmitt calls the personality of the Sovereign - that precludes it from

being absorbed into any logico-scientific schema. As we have learned from Nietzsche, this

applies both to the legal-moral order and to the logico-mathematical and scientific one!

That constitutive, specific element of a decision is, from the perspective

of the content of the underlying norm, new and alien. Looked at normatively,the [32] decision emanates from nothingness. The legal force of a decisionis different from the result of substantiation. Ascription is not achieved with the aid of a norm; it happens the other way around.

A point of ascription first determines what a norm is and whatnormative rightness is. (PT, pp31-2)

Recall once more Nietzsche: Looked at from a moral point of view, the world is false! But

because the world is ausser-moralisch, it is morality that is false, that contains no truth, but

can contain only authority. It is not morality (the Hobbesian lex qua veritas) that a-scribes the

world (lex qua auctoritas), but rather the world that ascribes morality (auctoritas qua lex). And just

as the world is contingent emanating from nothingness so is also the decision (which, as westyled it earlier, is an in-cision in time, an act that is substantive and a-scriptive by its very

nature an act of will is a pleonasm!).

The law gives authority,said Locke, and he consciously used the word law antitheticallyto commissio which means the personal command of the monarch.But he did not recognize that the law does not designate to whomit gives authority. It cannot be just anybody who can executeand realize every desired legal prescription. The legal prescription,as the norm of decision, only designates how decisions should [33]be made, not who should decide. In the absence of a pivotal

authority, anybody can refer to the correctness of the content.But the pivotal authority is not derived from the norm of decision.

Accordingly, the question is that of competence, a question thatcannot be raised by and much less answered from the contentof the legal quality of a maxim. (PT, pp32-3)

C. The Decision and the Political

The point of the facticity of the conception of the Political in the negatives Denken is illustrated

most tellingly by Lowith in a fascinating homologation of the political philosophy of Schmitt with

the existential (though not necessarily existentialist!) onto-theo-logy of Heidegger.

Elpathos de la decisin en favor de la pura decisividad supo encontraruna aprobacin generalizada en la poca de entreguerras. Preparel camino para la decisin en favor de la decisividad de Hitlere hizo posible el viraje poltico como"revolucin del nihilismo". Pero este pathos no estaba de ningn modo confinado al decisionismopoltico, sino que caracterizaba no menos la teologa dialctica y la filosofa de la existencia decidida. Esta conexin interna entre el decisionismopoltico, filosfico y teolgico85 ser desarrollada en el siguiente


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complemento al anterior tratado de 1935 sobre Carl Schmitt, en relacin con Martin Heidegger86 y Friedrich Gogarten. El ser y el78 HEIDEGGER, PENSADOR DE UN TIEMPO INDIGENTEtiempo -un libro en apariencia completamente apoltico, que no hace ms que plantear la pregunta por el ser, aunque en el horizontedel tiempo- apareci en el mismo ao que El concepto de lo poltico

de Schmitt, y la teologa dialctica alcanzaba su mayor poder de seduccin en ese mismo momento.Para comprender el trasfondo contemporneo de los impulsos radicalesde Heidegger resulta til ponerlos en relacin con una expresin de Rilke. El mundo burgus, escribe Rilke en una carta del8 de noviembre de 1915, ha olvidado por medio de su fe en el progreso y en la humanidad las "ltimas instancias" de la vida humana;ha olvidado que este mundo burgus "estaba superado de antemano por Dios y la muerte". El mismo significado tambin tiene lamuerte en El ser y el tiempo ( 63): como la insuperable "instanciasuperior de apelacin" de nuestro ser y poder. En El ser y el tiempo,por supuesto, de Dios no se habla; Heidegger haba sido por mucho

tiempo telogo cristiano, como para poder contar, como Rilke,las "historias del buen Dios". Lo nico que es necesario para l esla pregunta por el ser en cuanto tal y en su totalidad; una pregunta para la cual la nada y la muerte resultan especialmente reveladoras. La muerte es la nada ante la cual se manifiesta la radical finitud denuestra existencia temporal o, como se encuentra formulado en laslecciones de Friburgo en torno al ao 1920, la "facticidad histrica" cuyo pathos es la resolucin de asumir el ser-ah [Da-sein] ms propio.La "libertad para la muerte" con subrayado doble en El ser y eltiempo ( 53), por medio de la cual el Dasein en cada caso propio y aislado en s mismo alcanza su "poder-ser-total" [Ganz-sein-konnen],se corresponde en el decisionismo poltico con el sacrificio de

la vida por el Estado total en el caso de emergencia de la guerra. El principio es en ambos casos el mismo: el regreso radical a algo ltimo, al nudo que-es [Da-sein] de la facticidad, es decir, a lo quequeda de la vida cuando se ha barrido con todos los contenidos vitalestradicionales, con la quididad.

In the quotation above, Lowith homologates the decision in Schmitts political theory with the

freedom before death (reminiscent of the sickness unto death of Kierkegaardian memory)

that Heidegger underlines doubly in his magnum opus, Sein und Zeit. This is what Heidegger

achieves for Schmitt: - the de-struction of form, of system, order and unity, of totality as the

truth or necessity of all human concepts - whichbegins with the only freedom possible for

Heidegger, that of freedom as contingency, as the possibility of nothingness: and hence of thedecision auf Nichts gestellt. It is this pro-jectuality that allows truth to be seen as dis-

closedness, being asbecoming, and therefore freedom as resolve (Ent-schlossenheit), as

resoluteness - as Decision.

Interesting is the contrast with Hobbes who sees death in a political dimension, rather than an

ontological one (like Nietzsche, not the fact that we die but how we die is important for him)


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by selecting the fear of violent death, and the related clinging to life, as the motive for the

exit from the state of nature into the political one of the common wealth. In effect, the only

free-dom possible for Hobbes is in the state of nature where the human will has free rein. It is

the irrationality of this state of nature, itsbellum civium, that induces the free will to exercise its

rational decision to opt for the status civilis, for the social contract establishing the common-

wealth and the State to protect it.

Schmitt objects here that Hobbess polity in effect marks the transition or exit from a mythological

state of nature that is un-politicalby definition (the war of all against all, anarchy and chaos)

into an equally un-political state in which the adherents to the social pact renounce politics

by alienating their free-dom to a wholly mechanical State in exchange for its protection. Politics

as conflict now exists in foro externo between States but not within them, in foro interno. If the

State is to be truly super partes, then ultimately no politics is possible within its territory. Freedom

therefore means for Hobbes the free-dom to decide autonomously over ones conduct in the

state of nature and inevitably clashing with the free-dom of others. Unlike Heideggers existential

notion of freedom, Hobbess is mechanical at one end and rationalistic at the other. As Lowith

correctly notes above, Hobbess freedom contains the Ratio that leads to the inter esse of the

common wealth.

This is not the freedom that Heidegger intends. For Heidegger freedom means contingency,

the possibility of annihilation, the opposite of logical necessity or teleological destiny. For Hobbes

freedom is a relation to other individuals so that his state of nature contains a political notion

of freedom, but one that annuls itself because this free-dom does not take an institutional form

but remains rather one tied to the anarchy and chaos of the bellum civium, the civil war of the

state of nature. In Heidegger the will becomes the very foundation of all reality, whereas in

Hobbes it is the escape from the will freedomfrom the will, from the destructiveness of this will

that is the aim of political theory for the sake of the rational preservation of life and the avoidance

of death: only to see this will clash aporetically with its axiomatic mechanical self-interest.

Heideggers will is reconcilable with life and politics because it is essentia lly ontological;Hobbess is not because it is an acquisitive will that is entirely atomic and a-political. Hobbess

will is so unilateral, so one-sided, that it is not free to decide in favour of the preservation of

life or of the common weal it can only at best opt for self-preservation, to a-void death. This

is the ultimate fallacy of possessive individualism from Hobbes to Smith and neoclassical

theory.

In both Hobbes and Heidegger the will is an ontological entity, not a political one; but it

necessarily becomes political at the point of decision, when it becomes organized conflict, coaction

and co-ercion. And this is why Schmitt combines the decision with the pre-existence of friend

and foe, the imprescindible moment of the Political that is not acquired historically from

the state of nature or instituted contractually, but is rather a given of the universal Eris,

a quidditasor qualitas occulta, a world from which even the aporetic Hobbesian Ratio of thedecision (however ultimate) to exit the state of nature and to enter the Ordo of the contractum

unionis et subjectionis is removed. Heidegger emphasizes resolve (Entschlossenheit) as the

moment of decision rather than as the Ratio of politics. But he does not escape the politi cal

romanticism decried by Schmitt because his ontology is part of that neutralization of politics

that Schmitt combats. In this regard, Lowiths homologation of Schmitt and Heidegger misses the

mark. But not entirely; not with regard to the facticity of authority, or power in the

Hobbesian sense, or sovereignty in the Schmittian sense. This facticity is the quidditas,


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the qualitas

schmitt and the concept of the political - joseph belbruno

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