This view is the culmination of Schmitt’s efforts to conceptualize a monistic power structure of the sovereign state through decisionism.
The beginning of Schmitt’s concern on authority seems to be Political Theology, where he contrasts “decisionism” with neo-Kantian normative jurisprudence.
Tracing the line of debate to John Locke, Schmitt insists that Locke’s attempt to deploy “law” as opposed to commissio or the personal command of the monarch is futile, for “he did not recognize that the law does not designate to whom it gives authority… The legal prescription, as the norm of decision, only designates how decisions should be made, not who should decide” (Schmitt, 1985: 32). The pivotal issue of authority thus cannot be determined via legal norm of competence. It is in this context that Schmitt designate Hobbes as the representative of the opposite thinking – decisionism:
The classical representative of the decisionist type… is Thomas Hobbes. The peculiar nature of this type explains why it, and not the other type, discovered the classic formulation of the antithesis: auctoritas, non veritas facit legum….
Hobbes also advanced a decisive argument that connects this type of decisionism with personalism and rejected all attempts to substitute an abstractly valid order for a concrete sovereignty of the state. (Schmitt, 1985: 33)
Since Hobbes’s conceptualization, the sovereign of the modern state has combined the hitherto separated power and authority into a monistic structure.
George Schwab (1989: 45-47) brought out implications of Schmitt’s deployment of Hobbes most clearly:
Authority is here combined with potestas directa and not indirect power. Those in possession of potestas directa demand the obedience of individuals in
exchange for protection…. [T]he starting point is the individual. He obeys only those who can protect him. This is always potestas directa. The source which possesses potestas directa also possesses authority… By possessing both –
potestas and auctoritas – this source is in the position to interpret… anything
else is, in concrete, “veritas”. (Schwab 1989: 46-47)Thus, power combined with authority in the sovereign decision is the core of
Schmitt’s political theory. Even though his position may have undergone some change from the idea of sovereignty in Political Theology to the pouvoir constituant in Verfassungslehre;12 the underlying thinking remains the same. Hence, in his definition of constituent power, the terms “power” and “authority” are deemed interrelated and combined.13
The constituent power as the political will of a nation that initiates the
beginning of a constitutional order is purely an “existence” unbounded by any norm, yet gives validity and legitimacy to all constitutional norms. For Schmitt, the French Revolution and Sieyès’s doctrine of pouvoir constituant are the greatest achievements of modern politics. They crystallized into a vision of “national democracy” with the primacy of will of political determination of the nation (V: 49-51; 231-234). The French nation became a self-conscious subject of the constituent power; it
“constructed itself” by giving itself a constitution to become a concrete, historical agency. This political dimension of the French Revolution, Schmitt emphasizes, inherits the “absoluteness” from the monarchy, and even leads to a more rigid unity and indivisibility of the state. Thus, all constituent assemblies, even if their task is to create liberal or democratic constitutional order, are still in the mode of “sovereign dictatorship” as they are not limited by any norms or procedures, and for the end to create a constitutional order, what they need is to create a unitary national will.
12 See Cristi, 1998 for a detailed discussion on Schmitt’s change.
13 There is one significant aberration in Schmitt’s Der Hütter der Verfassung (1931). According to the Weimar constitution, the Reich President has no “power” other than the emergent power contained in Article 48. Under this specific situation, when Schmitt attempts to bestow more power to the President, Schmitt resorts to the classical separation between auctoritas and potestas, which he has rejected and replaced with the monistic “combined” version. In this context, he argues that as the President has the plebiscitarian support from the whole nation, he should have “authority” to coordinate other constitutional powers. Benjamin Constant’s pouvoir neutral is also resorted to by Schmitt (pp.135-140). The conclusion Schmitt attempts to draw is that the Reich President, not the Legislature nor the Judiciary, should be the “defender of the Constitution.” In this case, we can clearly see the underlying opportunistic tendency in Schmitt’s overtly meticulous deployment of constitutional terms. For this particular purpose, he is willing to sacrifice the “combined vision of authority and power”.
Schmitt quotes a famous phrase of Sieyès: “It is enough that a nation wills” (V: 79), because a unitary will would create political unity, especially if this will is related to a decision of enemy.
Contrary to his eulogy of the French Revolution, Schmitt slights the contributions of the American Revolution: “At that time, people have not
distinguished the “covenant”, which establishes the foundations of community and society, from another act of constituting a new political entity and based on this act the free determination of particular form of existence” (V:78-79). In other words, for Schmitt, the American Revolution is not a genuine political “beginning,” as the
constituent power of the nation did not operate during the framing of the constitution.
The Federalists were merely concerned with “practical, organizational questions” (V:
78).
Schmitt’s repudiation of the American contribution is not limited to these
quibbles. The underlying reason is that, based on Montesquieu’s political theory, the United States established the first written constitution based on separation of powers and federalism. Separation of powers, for Schmitt, embodies the idea of Rechtsstaat or rule of law, which advocates the formal concept of the law (V: 143). This ideal is opposed to Schmitt’s idea of the “political concept of the law” in the tradition of decisionism (V: 143-146). Their opposition is very stark:
From the perspective of Rechtsstaat, the essence of the law is norm, and norm with determinate qualities: it is a right rule of general character. The law for political concept of the law is concrete will and command and an act of
sovereignty. (V.:116; original emphasis)
Not incidentally, page 116 of Verfassungslehre is exactly Arendt’s reference mentioned above (BPF, p.292, n21). Thus, my suggestion that Arendt may have conducted hidden dialogue with Schmitt on the issues of constituent power and sovereignty may no longer seem to be unfounded at first glance.
6. Arendt’s Analysis of the American Revolution in a New Light
Opposed to Schmitt’s verdict, Arendt insists that, among the numerous modern revolutions only the American Revolution escapes the Machiavellian curse of the dialectical escalation of violence. The American Founding Fathers established an enduring constitutio libertatis without appeal to violence (Arendt 1977, 140; 1990, 165-178). In Arendt’s interpretation, the Founding Fathers carried out this Roman spirit (the idea of authority as augmentation of a foundation) under the condition of modernity.
Scheuerman has meticulously demonstrated that Arendt’s account of two
revolutions is almost an “inversion” of Schmitt’s depiction. Our task is to elaborate the theoretical implications of this hidden dialogue. The original contributions of Arendt’s interpretation consist of three arguments.