主觀自由之超克：黑格爾與鄂蘭對盧梭與法國革命思想之批判(3/3)

行政院國家科學委員會專題研究計畫 成果報告

主觀自由之超克：黑格爾與鄂蘭對盧梭與法國革命思想之批

判(3/3)

中 華 民 國 95 年 8 月 21 日

Preliminary draft Please do not cite

Power and Authority in Constitutional Theory:

Hidden Dialogue between Hannah Arendt and Carl Schmitt

Carl K. Y. Shaw Research Fellow

Research Center for Humanities and Social Sciences Academia Sinica

Taipei, Taiwan

E-mail: [email protected]

* Prepared for presentation at the annual meeting of the American Political Science Association to be held at the Marriott, Philadelphia, August 31 -- September 3, 2006. The author gratefully acknowledges the support on this research from the National Science Council of Taiwan (NSC 94-2414-H-004-060).

Power and Authority in Constitutional Theory:

Hidden Dialogue between Hannah Arendt and Carl Schmitt

Abstract

This paper provides a new interpretation of Hannah Arendt’s theory on the separation between power and authority. I contend that there is a “hidden dialogue” between Arendt and Carl Schmitt, for Arendt’s perspective that “power rests on the people, while authority resides in the constitution” is a response to Schmitt’s monistic view of the constituent power of the nation. Schmitt defends the Hobbesian tradition which insists that in the modern state the summa potestas and summa auctoritas should coincide in the Sovereign’s decision. By contrast, Arendt’s theory of societal power and constitutional authority provides an alternative genealogy of modern politics based on republican pluralism. Arendt’s “neo-Roman” idea of authority is in fact an attempt to deconstruct Schmitt’s political theology. By demonstrating the

illocutionary intention of Arendt’s theory, we can achieve a more adequate

understanding of her idea of political foundation, which is often claimed to be full of confusions.

Power and Authority in Constitutional Theory:

Hidden Dialogue between Hannah Arendt and Carl Schmitt

The sovereign decision is the absolute beginning, and the beginning (also in the sense of Arche) is nothing but sovereign decision. (Schmitt, 2004:62)

What save the act of beginning from its own arbitrariness is that it carries its own principle within itself, or to be more precise, that beginning and principle, principium and principle, are not only related to each other, but are coeval. (Arendt, 1990: 212)

1. Introduction: Bring Arendt back to the Weimar Context?

Two interrelated trends in the past two decades in history of ideas had immense

impacts on interpreting Hannah Arendt’s famous theories of human action and

republican freedom. One is the political implication of Heidegger’s philosophy; the

other is the “rediscovery” of Carl Schmitt’s political theory in the Anglo-American

world. Indeed, as an émigré from Nazi Germany to France and ultimately to the

United States, Arendt cannot possibly avoid confronting two of the most important

thinkers of the Weimar Republic, who collaborated with the Nazis. This is the fate

not only for Arendt, but also for Marxist theorists of the Frankfurt School.

Martin Jay’s critical but perceptive term “political existentialism” brought forth

these two trends into focus (Jay, 1986: 237-261). Not surprisingly, many Arendtian

categories underwent reevaluation in view of these developments. Due to the

personal relationship between Heidegger and Arendt, the affinities between their

thoughts draw more attention and systematic analysis (Villa, 1996). However, an

the context of Schmitt’s provocative thought.1 In addition to the works by Jay and

Richard Wolin (2001), some new studies began to examine this intellectual affinity in

more detail. Arendt’s analysis of modern revolutions is perceptively compared with

Schmitt’s view (Scheuerman, 1998). Her theory of human action in the sense of the

faculty to begin bears resonance with Schmitt’s theory of “decision” (Kalyvas, 2004).

Last but not the least, her relentless critique of “absolute” may well be a critique of

political theology, which Schmitt cherished most (Kalyvas, 2005).

In a similar orientation, the objective of this paper is to focus on the issue of

authority and power in Arendt’s republicanism and Schmitt’s decisionism. Arendt’s

idea of authority has been addressed by several excellent scholars, though not

garnering as much literature as ideas like action, freedom, and judgment. Canovan

(1994: 218-223) regards the idea of authority as an indispensable element of Arendt’s

“new republicanism”, especially related to the “world-building” or stabilizing effect

for the public realm. Honig (1993: 76-125) pursues a similar line of inquiry, which

is one of the most virtuoso analyses in Arendt literature. As is well known, Arendt’s

political theory is based on the priority of action as performative in the world of

human plurality. Honig points out that performatives must occur in an “authoritative

discursive practice,” yet Arendt “gives no account of the conditions of the practice”

(p.87). Based on Austin and especially Derrida’s interpretation of the Declaration of

Independence, Honig demonstrates how Arendt “constructs a replacement for it (i.e.,

the Roman idea of authority): through fabulous rendering of the American Revolution

and founding, she offers a powerful account of a practice of authority for modernity”

1

As Scheuerman points out, it may seem like sacrilege to explore the intellectual affinity of the thought of a fierce critic of totalitarianism with that of the “crown jurist” of the Nazis. It is certainly not my intention to depreciate Arendt’s thought in this way. The point is rather that, if we do demonstrate the critical way by which Arendt overcome Schmitt’s political decisionism, her thought can be of even more theoretical relevance than its current status.

(p.96, original emphasis). Honig’s skillful deployment of “strategy of intervention”2

on Arendt’s anti-foundationalism paves the way to relate Arendtian worldview with

postmodern theories of “the political”.3

Despite these re-evaluations of Arendt’s idea of authority, there are still doubts

about its relevance for contemporary democracy. Most relevant is the critical

perspective of Scheuerman (1998). After comparing Arendt’s theory of revolution as

a reaction to Schmitt’s theory of constituent power, Scheuerman arrives at an

unflattering conclusion:

[H]er famous account of the founding of the American Republic suffers in part because the model of the French Revolution counterposed to it, like Schmitt’s account, is too one-sided. Although Arendt suggests how we might begin to provide an answer to Schmitt’s authoritarian constitutional theory, her own response to Schmitt ultimately remains incomplete. (Scheuerman, 1998: 253) Scheuerman’s critiques of Arendt’s “incomplete response” boil down to two vital

issues: Arendt’s anti-majoritarian eulogy of the American Supreme Court as the

defender of the Constitution, and her appeal to the old-fashioned idea of authority for

justification. Scheuerman complaints are that,

Unfortunately, this view of the American Supreme Court raises as many questions as it purports to answer. It seems to conflict with Arendt’s earlier conception of authority, as formulated in the crucial “What is Authority?” Whereas On Revolution implies that the ongoing “constitutional conversation” of the Supreme Court represents an augmentation of the “mutual deliberation” basic to the act of founding itself, the earlier essay bluntly asserts that “[a]uthority … is incompatible with persuasion …” It is difficult to imagine what status such a conception of authority can rightfully possess in a modern, disenchanted

democratic polity: particularly in a democracy, only argumentation and discursive “persuasion” can legitimately justify the exercise of state power. (Scheuerman, 1998: 269)

Consequently, there are two interpretations diametrically opposed to each other

on the relevance of Arendt’s idea of authority. The objective of this paper is to

provide a historical account and theoretical reconstruction of Arendt’s theory of

2

See Honig 1993:109 for her own exposition of this term. 3

Further analyses of Arendt’s idea of authority can be found in Curtis 1999:105-114 and Pirro, 2001: 51-73.

modern authority. I argue that the illocutionary intention of Arendt’s idea of

authority is exactly the issue that Scheuerman is dealing with – Arendt’s challenge of

Schmitt. Yet Scheuerman does not probe into the issue enough, and thus misjudges

the effectiveness of Arendt’s theory.

This paper is organized as follows. The second section provides a diachronic

overview of Arendt’s neo-Roman idea of authority from Origins of Totalitarianism

up to the essay “What is authority?” The third section discusses the textual

evidence for the possibility of Arendt’s hidden dialogue with Schmitt. The fourth

section moves to review Schmitt’s monistic theory of power and authority and his

view about two great revolutions. Based on this comparative analysis, I re-examine

three themes of Arendt’s theoretical insights in On Revolution: (1) Framing the

constitution may not be an absolute and arbitrary beginning. (2) The beginning

needs not resort to an absolute above the laws, be it sovereignty as legibus solutes or

pouvoir constituant. (3) The constitution of the United States transforms the

Romans maxim “potestas in populo, auctoritas in senatu” into the constitutional

premises that political power rests in We the People while political authority resides

in the constitution. These three elements are Arendt’s rejoinders to Schmitt’s

decisionism.

2. Development of Arendt’s View on Authority

Jan-Werner Müller (2003: 2) suggests, “Schmitt was present as an implied

interlocutor in Hannah Arendt’s work on revolutions.” Although he does not

develop this line of inquiry in his excellent study on Schmitt’s influence on the

post-war European thought, this is the clue for the following inquiry.

power, violence, authority, and related terms. According to her,

Power corresponds to the human ability not just to act but to act in concert.

Power is never a property of an individual; it belongs to a group and remains in existence only so long as the group keeps together. When we say of someone that he is “in power” we actually refer to his being empowered by a certain number of people to act in their name. The moment the group, from which the power originated to begin with (potestas in populo, without a people or group there is no power), disappears, “his power” also vanishes. (CR, 143)

Authority… can be vested in persons… or it can be vested in offices, as, for instance, in the Roman senate (auctoritas in senatu) or in the hierarchical offices of the church…. Its hallmark is unquestioning recognition by those who are ask to obey; neither coercion nor persuasion is needed…. To remain in authority requires respect for the person or the office… (CR, 144)

Unlike three other concepts explained in this context (strength, force, and violence),

power and authority are explicated by its Roman origin – potestas in populo,

auctoritas in senatu – a theme crucial for Arendt’s political theory. These brief

formulations crystallize her effort toward conceptual redefinition for more than a

decade. What, then, is the origin of this intellectual enterprise?

In The Origins of Totalitarianism, the issue of authority is targeted against the

interpretation of Nazism advanced by T. W. Adorno:

[I]n spite of the numerous misunderstandings concerning the so-called

“authoritarian personality,” the principle of authority is in all important respects diametrically opposed to that of totalitarian domination. Quite apart from its origin in Roman history, authority, no matter in what form, always is meant to restrict or limit freedom, but never to abolish it. Totalitarian domination, however, aims at abolishing freedom, even at eliminating human spontaneity in general. (OT, 404- 405)

Underlying the analysis of Nazism, the genuine issue concerns the then urgent need to

define the nature of Stalinism and its relationship with the Marxist tradition. As

Lincoln (1994: 120ff) has shown, Arendt’s persistence in the usage of

“totalitarianism” concurred with the perspective of then dominant Sovietologists and

gained upper hand over the “authoritarian personality” interpretation of Nazism.

structure in western society constituted the underlying causes for the rise of

totalitarianism. In addition to the issue of totalitarian organization (OT, 364), Arendt

began to reflect the theoretical relevance of her dispute with Adorno regarding the

practice of authority. Two lines developed from her reflections after finishing OT.

In “Ideology and Terror” (1953, incorporated into later editions of OT as a

conclusion), Arendt constructs a binary conceptualization about authority: in the

rapidly changing actions of humans, positive laws are relatively permanent, though

still changeable according to circumstances. This permanence must be derived

“from the eternal presence of their source of authority” (OT, 463). Action as

performative and authority as stabilizing factor are presented in embryo. However,

the attribute of “transcendence” of authority, which she would later severely criticize,

is actually a positive attribute in the earliest formulation.

Another line can be found in “Authority in the Twentieth Century” (1956).

Intentionally overlooking the Marxists, Arendt argues her case against liberals and

neo-conservatives:

[L]iberalism, we saw, measures a process of receding freedom, and conservatism measures a process of receding authority; both call the expected end-result totalitarianism and see totalitarian trends wherever either one or the other is present. (Arendt, 1956: 414)

Arendt, by contrast, contends that “the truth is equally distributed between them and

that we are in fact confronted with a simultaneous recession of both freedom and

authority in the modern world” (ibid, my emphasis). This signifies a subtle but

important change on Arendt’s part regarding the relationship between authority and

freedom: In OT, Arendt states that authoritarian principle restricts but does not

eliminate freedom; in the present context, her claim of a simultaneous decline of

authority and freedom implies that authority may be indispensable for political

In Arendt’s usual style, these two lines of theoretical thought have to be

grounded on the history of ideas. Arendt began this enterprise in preparing a

Harvard lecture entitled “Authority” (Arendt, 1953a). She makes a stronger claim

that coercion and terror, not authority as legitimate power, are opposed to freedom

(p.1). Moreover, human freedom needs the “space” provided by authority:

The outward reality of freedom, as distinguished from the human capacity itself, indicates the space in which we move freely and which must be limited and protected by boundaries like all space fit to be inhabited by men. Freedom is this space between men which binds them together and at the same time separate them from one another. A body politic is free to the extent that it guarantees this space in-between and compared to this special reality the question of how many liberties a given body politic permits is secondary, changing with circumstance. (p.5)

Consequently, “authority will come into being automatically wherever men…have

established a common world and organized a body politic. It then is the body politic

itself, with its laws and institutions, which confronts each of them in his individuality

as the authority” (p.7).

Regarding the different concepts of authority in the Western tradition of political

thought, Arendt analyzes three. The first is the biblical concept: the word of God as

commandment, which is the genuinely transcendent and otherworldly source of

authority (p.14). The second is the Platonic “ideas” as “absolute units of

measurement” of the human world (pp.14-16). The last and the most important

concept is the Roman triad, religion-authority-tradition (pp.16-17). These terms are

inseparable for Romans because they “expressing the sacred binding force of an

authoritarian beginning to which one could remain bound only through tradition”

(p.16).

These three concepts of authority were the precursors of Arendt’s later analysis

in “What is Authority?” However, one subtle difference must be noted. In an

three concepts of authority:

The three sources of authority which we enumerated … have in common that they are not directly derived from the realm of political affairs themselves, but are transcendent, transcend the sphere of strictly human affairs which go on between men. The origin of authority, of the legitimacy of political power is non-political in the double sense that it actually lies beyond politics and that politics is essentially seen from a non-political point of view. When we say today that authority has broken down in the modern world, we actually mean to say that we have lost this political-transcending standpoint and with it the capacity to establish and preserve the body politic from without. This is

sometimes called modern immanentism and totalitarian domination in something considered to be the result of it in the sense that neither Nazi nor Bolshevik dictatorship recognized any transcendent authority but pretended to be able to act politically by following inherent laws of nature of history which are given and which can be discovered. (p.18)

This appraisal of the transcendent nature of authority is in line with her arguments in

“Ideology and Terror” regarding the need to distinguish a lawful government from a

lawless one (OT, 426-427). This can be further confirmed by Arendt’s emphasis on

the authority of the law, which distinguishes a republic from other forms of

government (Arendt, 1953a: 6).

3. What is Authority?

In 1956, a conference organized by the American Society of Political and Legal

Philosophy on the theme of “Authority” provided the occasion for Arendt to weave

these lines of thought into a grand synthesis.4 Originally entitled “What was

Authority?”, this conference paper later incorporated selected paragraphs from

“Authority in the Twentieth Century” and “Religion and Politics” into the now famous

article “What is Authority?” collected in Between Past and Future.5

4

See Lincoln, 1994:120-125, 210-214 for an illuminating analysis in the mode of sociology of

knowledge, especially his reconstruction of the intention and underlying network in organizing the this conference, the proceedings of which initiated the famous Nomo Series. The theme, together with a previous conference on “Totalitarianism,” signals the most urgent task for Americans to understand the nature of the Soviet regime, America’s emerging arch-enemy in the Cold War.

5

As there have already been many excellent studies, we shall focus on the

differences between it and the formulations in previous manuscripts. By now,

Arendt has delivered the Walgreen Foundation Lecture in April 1956, which

constitutes the basis of Human Condition; that is to say, she has fully developed

another triad, the famous distinction between labor, work, and action. This

Hellenistic triad makes revising the Roman triad necessary. The reason is obvious:

by now through dialogues with Marx, Arendt had re-discovered the Greek politics of

arête. Action becomes an end-in-itself. However, the crucial issue is how to

explain the formation of a public realm in which actions take place. The Greek

regarded legislation as something pre-political;6 the Roman foundation-tradition could

ground its idea of auctoritas; in other words, for Greeks and Romans, the public realm

was somehow “given” – by physis or tradition. The situation of modernity is entirely

different. After the breakdown of authority and tradition, we moderns have to be

self-reliant in establishing the public realm as the space of our own action. The

question is what is the mode of vita activa that forms this public realm topologically?

Obviously, its formation cannot occur by the mode of labor or work/fabrication,

because this transgression would result in bringing violence into politics (HC, 228).

Modern political agencies are thus faced with twofold tasks: to establish public realm

via action only, and acting in that realm.

This is the “apparent paradox” in Arendt’s theory highlighted by Honig:

[I]f promising is to be a source of reassuring and stability, the operation of the practice and the meaning of particular promises must be relatively unproblematic. If this is the case, then action as promising cannot occur ex nihilo and will not be as risky, as contingent and unpredictable, as Arendt says it is. On the other hand, if action is that contingent, then promising will not by itself be able provide the satiability Arendt expects it to: the source of satiability is coming

Marxism,” the Roman spirit leads to her three lines of inquiries: authority (the manuscripts quoted above), tradition (Tradition and the Modern Age), and religion (Religion and Politics).

6

It is the “Socratic school, particularly Plato, who was skeptical about the frailty of action and turns to fabrication of the craftsmen to establish the idea of political rule (HC, 230).

from somewhere else, possibly from something external to action’s purely performative speech act. (Honig, 1993: 88)

From this perspective, one can appraise Arendt’s changing attitude in “What is

Authority?” The three concepts of authority are still regarded as the paradigmatic

cases, but Arendt now has a new concern: Is there any adequate mode of forming

authority in the modern world wherein authority was supposed to have been lost?

With this new concern, Arendt revised her depiction of Roman authority. The triad

structure is still intact. However, Arendt focuses on the dimension of “augmenting”

the foundation. Most importantly, Roman authority is no longer characterized as

“transcendent” but evolved from political practice. Relation of authority still

signifies inequality and hierarchy; however, “to visualize this hierarchy in the familiar

image of the pyramid, it is as though the peak of the pyramid did not reach into the

height of a sky above (or, as in Christianity, beyond) the earth, but into the depth of an

earthly past” (BPF, 124, italic is mine).

Platonic precursory meditation on the rule of philosopher-king did “reach into

the height of a sky above,” the world of ideas. Arendt, deploying Heidegger’s

critique of Plato’s doctrine of truth as abandoning aletheia, points out that Plato

transformed the idea from “true essence to be contemplated” to “measures to be

applied.” Arendt credits Plato with utopian violence (111), as the “transcendent”

nature of Plato’s “tyranny of reason” would need to coerce the multitude into

obedience (p.107-108). Christianity followed suit in this transcendent enterprise,

transforming Platonic fabulous myths into religious sanction of hell for the law as

commandment (128-135).

Beside Platonic, Roman, and Christian concepts of authority, Arendt now

was absent in previous accounts.7 Arendt acknowledges Machiavelli’s originality:

The greatness of his rediscovery lies in that he could not simply revive or resort to an articulate conceptual tradition, but had himself to articulate those

experiences which the Romans had not conceptualized but rather expressed in terms of Greek philosophy vulgarized for this purpose. (BPF, 138)

This “rediscovery” turns out to be deceiving and inadequate, as Machiavelli actually

attempted to “introduce new orders” under the modern predicament of loss of

authority. Machiavelli’s novel solutions, be it founding by “uno solo” with

extraordinary virtù (Discourse, I:10) or “drawing back toward beginning”(Discourse,

III:1), signifies the emergence of the modern idea of revolution. Machiavelli’s

solution, paradoxically, is a Platonic derogation of the Roman foundation.

In one of Arendt’s manuscripts, she writes, “ROBESPIERRE: The perfect

Machiavellian.”8 She cites the dictatorship of the Committee of Public Safety as the

paradigmatic case of the priority of political necessity over every other ethical

consideration, and thus relates Machiavellism to what she regard as a failed path of

revolution, the French Revolution. For Arendt,

Like the Romans, Machiavelli and Robespierre felt founding was the central political action, the one great deed that established the public-political realm and made politics possible; but unlike the Romans, to whom this was an event of the past, they felt that for this supreme “end” all “means,” and chiefly the means of violence, were justified. They understood the act of founding entirely in the

image of making; the question to them was literally how to “make” a unified

Italy or a French republic, and their justification of violence was guided by and received its inherent plausibility from the underlying argument: you cannot make a table without killing trees, you cannot make an omelet without breaking eggs, you cannot make a republic without killing people. In this respect, which was to become so fateful for the history of revolutions, Machiavelli and Robespierre

7

In HC (228-229), when Arendt analyzes how modern deployment of “fabrication” in politics resulted in violence and a series of revolutions, Arendt does not criticize Machiavelli in this context. Canovan (1992:163-169, esp. p.166) has already noticed this very change. She attributes Arendt’s change of formulation to the fact that, unlike Nazism, which is the result of erosion of authority, the root of Stalinism – Marxism – is rather the culmination of the tradition. Thus, Arendt’s later critique of the transcendent nature of the Western concept of authority still relates to the totalitarian project. I shall argue that Arendt’s changing attitude signifies a changing concern for a broad theme: constructing a political theory of beginning that can overcome the pitfalls of the modern ideas of sovereignty and revolution. Totalitarianism thus recedes to the background and she focuses on the political theories of the nation state.

8

were not Romans, and the authority to which they could have appealed would

have been rather Plato, who also recommended tyranny as the government

where “change is likely to be easiest and most rapid”. (BPF:139, my emphases) After the demise of authority, modern political thinkers developed reified theories of

revolution, which claimed to solve the predicament of beginning, but were themselves

entangled in the political impasse of arbitrary beginning in reality.

Are there any viable solutions? As an avid proponent of the view that human

natality signifies the possibility of new beginning, Arendt has no right to be

pessimistic. Fortunately, the American Revolution – at least via the right kind of

hermeneutic reconstruction – embodies a new way to practice authority under the

modern condition. At the end of “What is Authority?” Arendt announces the

imperative to analyze the American “act of foundation,” (pp.140-141) which she is to

explore in detail in On Revolution.

The practice of modern authority necessarily involves an analysis of revolution

and constitution making:

Machiavelli’s insistence on violence… was the direct consequence of the twofold perplexity in which he found himself theoretically, and which later became the very perplexity besetting the men of revolution. The perplexity consists in the

task of foundation, the setting of a new beginning, which as such seemed to

demand violence and violation, the repetition, as it were, of the old legendary crime (Romulus slew Remus, Cain slew Abel) at the beginning of history. This task of foundation, moreover, was coupled with the task of lawgiving, of devising and imposing upon men a new authority, which, however, had to be designed in such a way that it would fit and step into the shoes of the old absolute that derives from a God-given authority, thus superseding an earthly order whose ultimate sanction had been the commands of an omnipotent God and whose final source of legitimacy had been the notion of an incarnation of God on earth. (OR, 38-39)

This Machiavellian “perplexity” later has various embodiments in modern

constitutional theory. One of the most important cases is Sieyès’s famous distinction

of the constituent power (pouvoir constituant) and constituted power (pouvoir

decisionism by Schmitt in his Verfassungslehre to counter normative thinking in

jurisprudence. The beginning of a constitutional order is conditioned neither by any

norms nor by any procedures, but is constituted by a willful self-determination of a

nation.

Arendt is certainly familiar with this tradition, as she states that “The word

‘constitution’ obviously is equivocal in that it means the act of constituting as well as

the law or rules of government that are ‘constituted’, to be embodied in written

documents or, as in the case of the British constitution, implied in institutions,

customs, and precedents.” (OR, 145) Her important critiques of Sieyès (OR,

161-164) demonstrate that the ideas of pouvoir constituant and sovereignty are the

archenemies in her republican narrative of the modern revolution. Our problem is as

follows: Is it possible that Arendt, in criticizing Sieyès’s idea of pouvoir constituant, is

in reality esoterically criticizing Carl Schmitt, the “crown jurist” of the Nazi regime,

and even conducting a “hidden dialogue” with this eminent enemy of liberalism and

parliamentary democracy?

4. A Hidden Dialogue?

Arendt is certainly aware of the basic line of Schmitt’s thought. In Origins of

Totalitarianism, she writes that Schmitt’s “very ingenious theories about the end of

democracy and legal government still make arresting reading” (OT, 339). On the

memorial piece on Waldemar Gurian, a former student of Schmitt, she describes

Schmitt as “the famous professor of constitutional and international law who later

became a Nazi” (MDT, 252).9

One central clue, I believe, can be found in comparing Arendt’s analysis of the

9

Scheuerman (1998: 272) speculates about the possibility of Arendt discussing Schmitt’s legal theory with Gurian.

conceptual distinction between authority and power in Roman and Christian thought

(BPF, 121-128) with Schmitt’s famous discussion on pouvoir constituant (V, 75-76).

Schmitt defines pouvoir constituant as “a political will, by its power or authority,

[which] determines the type and form of its political existence through a concrete total

decision” (V: 75, italics is mine). For this important definition, Schmitt adds a long

footnote with regard to the different meanings “power” and “authority”:

To the further discourse of this constitutional theory, it is not necessary to distinguish power (Macht) and authority (Autorität). Nevertheless, due to the importance this distinction bears to the theory of the state, we may roughly make the following remarks: power relates to always-realistic sovereignty and majesty; on the contrary, authority relates to reputation which is essentially based on continuity involving tradition and duration. In every state, these two – power

and authority – always combine to be effectual. (V:75; italics is mine).

Schmitt went on to discuss the distinction between auctoritas and potestas/imperium

in the Roman tradition and its continuation in medieval political thought, that Pope

owns auctoritas while the Roman Emperor has potestas.

If we compare this paragraph with Arendt’s exposition of Roman idea of

authority (BPF, 122-125), the resonances suddenly come to light. First, both Schmitt

and Arendt emphasize continuity of tradition as the indispensable condition of

authority. Both refer to the discussions by Theodor Mommsen in the third volume of

Römische Staatsrecht. The only difference is the pagination referred to, as Schmitt

refers to p.1033, while Arendt cites 1034 and 1038-1039 together with vol. 1, pp.73,

87. Authority and power were separated in the Roman tradition: auctoritas belongs

to the Senate while potestas and imperium come from the people. Secondly, both

highlight the fact that the medieval church upheld this dualism: the Pope in a sense

can claim to have auctoritas, while the Roman emperor has potestas. Both Schmitt

and Arendt refer to the famous line of Pope Gelasius I “There are two by which this

power” from Migne’s Patrologia Latina, vol.59, p.42a, though with slight difference

in quoting Latin. Third, in his footnote Schmitt goes on to discuss the auctoritas of

the League of Nations and International Court at Hague. Rejecting the notion that

these two international organizations have potestas and reducing their judicial

auctoritas to “non-political” roles, Schmitt quotes Montesquieu’s depiction of the

judiciary “power” as “en quelque façon nul” (“nil in a sense”). However, for Arendt,

Montesquieu is the only modern thinker who is genuinely Roman and not tainted by

the sovereignty thinking, and who develops a new theory of “power”.

Are these resonances mere contingent or there is indeed a hidden dialogue?

One clue is Arendt’s acknowledgement: “Professor Carl J. Friedrich drew my

attention to the important discussion of authority in Mommsen’s Römische

Staatsrecht.” (BPF, 292, n.33) Compared with Friedrich’s own discussion of

authority, Mommsen’s work is indeed the source on Roman usage (Friedrich, 1972:

47-48), though Friedrich quotes the same page number as Schmitt (vol.3, pp.1033 ff)

and refers to R. Heinze’s article. This is an article used by Schmitt but not

mentioned by Arendt. Thus, it might be Friedrich’s reminder that made Arendt

consult Mommsen’s work. However, Friedrich (1972: 93) did not pay attention to

the medieval development of the Roman dualism as did Schmitt and Arendt. Thus,

Arendt’s reference to Gelasius might be from Schmitt.

My tentative suggestion is that both Friedrich and Arendt were using Schmitt’s

discussion on the relationship between power and authority in Verfassungslehre

without mentioning their source. This argument may be repudiated as relying

merely on an endnote, and thus not being solid enough. However, Arendt’s own

justification of her reliance on a footnote of the Social Contract to interpret the pivotal

quote:

This sentence contains the key to Rousseau’s concept of the general will.10 The fact that it appears merely in a footnote (Social Contract II, 3) shows only that

the concrete experience from which Rousseau derived his theory had become so natural to him that he hardly thought it worth mentioning. (OR, 291, n.24;

italic is mine)

Thus, important remarks in a footnote might well unveil the presumptions of an

author.

However, more direct textual evidences would be necessary for the stronger

claim that Arendt has Schmitt’s constitutional theory in mind in On Revolution.

According to Scheuerman (1998: 253), Arendt seems to have familiarity with the

basic outlines of Schmitt’s political and legal thought. However, Scheuerman

continues, “[a]lthough I have found no specific reference to the 1928 Verfassungslehre,

where Schmitt offers the most lucid account of his constitutional theory, she may well

have been aware of its core claims.” (1998: 272, n.2)

Textually, there is indeed one crucial direct reference to Verfassungslehre in an

endnote of Between Past and Future, which Scheuerman fails to notice:

See the first four chapters of the second book of The Social Contract. Among modern political theorists, Carl Schmitt is the most able defender of the notion of sovereignty. He recognizes clearly that the root of sovereignty is the will: Sovereign is he who wills and commands. See especially his Verfassungslehre, München, 1928, pp.7ff, 146. (BPF, 296, n.21).

The context of this endnote is Arendt insistence that the idea of political freedom is

incompatible with any theories of sovereignty and will. Rousseau is singled out as

“the most consistent representative of the theory of sovereignty” in this endnote, with

further discussions on Schmitt’s notion of sovereignty.

It would be interesting to check out the contents of two particular references in

Arendt’s endnote. On Page 7 of Verfassungslehre, Schmitt discusses that only

10

The Rousseau text that Arendt refers to is about Marqis d’Argenson’s remarks about the

manipulation of opposition between particular interests to engender common interest. In this context, Arendt discusses particular interest as “enemy” -- an issue central to Schmitt’s concept of the political.

“concrete existence” (not any norms) can have sovereignty. Immediately after this

paragraph, beginning from Page 9, one encounters Schmitt’s very first discussion on

verfassungsgebende Gewalt (constituent power) in Verfassungslehre. Similar to his

formal definition quoted above, in this context Schmitt remarks that, “In truth, the

validity of a constitution is from a kind of constituent power (that is, power or

authority), and legislated through its will. Contrary to mere norm, the word ‘will’

relates to something existential as the origin of ought.”

Another reference by Arendt, Page 146 of Verfassungslehre, discusses “the

political concept of law” (as opposed to the concept of law in the Rechtsstaat

tradition). In this context, Schmitt claims, “from the perspective of the political

concept of law, a law is a concrete will and command” (emphases original).

Consequently, textual evidence demonstrates that Arendt has Schmitt’s theory of

sovereignty in mind, as sovereign decision as the absolute beginning of political order

and law as command are two theoretical objectives that Arendt attempts to refute in

On Revolution. To elaborate the theoretical implication of this “hidden dialogue”,

our next task is understand Schmitt’s view on the relation between power and

authority.

5. Schmitt’s Monistic View on Power and Authority in the Modern State

The crucial issue is in Schmitt’s remark in his footnote to the definition of

pouvoir constituant: “In every state, these two – power and authority – always

combine to be effectual.” This clause shows that, for Schmitt, even though he

accepts the distinction and separation of auctoritas from potestas in Roman and

medieval constitutional theory, he insists that in the modern state these two are

they must be combined to provide the required political-existential momentum for the

constituent power of a nation. It is this “monism of authority and power” in

Schmitt’s theory of constituent power that Arendt attempts to overcome in On

Revolution; and it is in this context one can decipher the illocutionary intention of

Arendt’s persistence in upholding the Roman tradition.

As is now well known, the theoretical core of Arendt’s constitutional politics is

the separation of authority from power: “the framers of the American constitutions,

although they knew they had to establish a new source of law and to devise a new

system of power, were never even tempted to derive law and power from the same

origin. The seat of power to them was the people, but the source of law was to be

the Constitution.” (OR, 157) This American innovation in constitutionalism is

contrasted with the French model:

The great and fateful misfortune of the French Revolution was that none of the constituent assemblies could command enough authority to lay down the law of the land; the reproach rightly leveled against them was always the same: they lacked the power to constitute by definition; they themselves were

unconstitutional. Theoretically, the fateful blunder of the men of the French Revolution consisted in their almost automatic, uncritical belief that power and law spring from the selfsame source. (OR, 165)

In contrast, Schmitt upholds opposite values expounded by Arendt in On Revolution.

More adequately, On Revolution is an “inversion” of Verfassungslehre.

We shall begin by the issue of authority. Schmitt is extremely concerned with

this issue, and fond of quoting the Latin version of Hobbes’s idea of the law:

Auctoritas, non veritas facit legum (Not truth but authority makes the law).11 The

clearest exposition can be found in The Leviathan in the State Theory of Thomas

Hobbes (1938):

What significant in the statement is Hobbes’ conclusion that it is no longer valid to distinguish between auctoritas and potestas, making summa potestas into

11

See, for example, Schmitt 1983:140; 1985:33; 2004: 61, 105. Except in Verfassungslehre, where he refers to chapter 19 of Leviathan, all other references are to chapter 26 of Leviathan.

summa auctoritas. (p.45)

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)

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

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.

First, the American Revolution was able to overcome the pitfalls of the French

Revolution because it did not strive for an absolute new beginning. Colonial

experience in self-government had paved the “foundation” for republican self-rule.

What the revolution and constitution making achieved were exactly “augmentation”

in the Roman tradition, which Arendt believes to be the essence of political authority.

Put in the language of social contract, the Founding Fathers did not attempt to create a

new political order out of a “state of nature”, but assembled the societal covenants

into the political form of a free constitution (Arendt 1990, 165-171), or constituted a

new power center in a confederate republic (p.154). The arbitrariness of beginning

could be overcome because the Americans did not conceive of their revolutionary

actions as beginning.

Second, the Founding Fathers did not resort to a potestas legibus soluta, an

for the laws. The problem of the absolute, the obsession in the French tradition, had

never been a major concern for the Founders. The French obsession would result in

an endless pursuit of “ever-present transcendental source of authority,” be it absolute

sovereignty of the monarch or general will of the people (p.185).

Third, Arendt (1991, 182) suggests that American constitutionalism best

embodies the Roman uncoupling of power (origin of power) and authority (source of

law). Americans transformed the Romans maxim “potestas in populo, auctoritas in

senatu” into the constitutional premises that political power rests in We the People

while political authority resides in the constitution. Moreover, the innovation of

judiciary power to embody the constitutional authority is the quintessence of

American constitutionalism:

Institutionally, it is lack of power, combined with permanence of office, which signals that the true seat of authority in the American Republic is the Supreme Court. And this authority is exerted in a kind of continuous

constitution-making, for the Supreme Court is indeed, in Woodrow Wilson’s phrase, ‘a kind of constitutional Assembly in continuous session’. (Arendt 1990, 200)

This crucial paragraph shows that, for Arendt, the pouvoir constituant consists in the

Supreme Court, which is a particular institution within a constitution, thus

transforming the Supreme Court from the function of pouvoir constitué to that of

pouvoir constituant. All these three issues bear important relations with Schmitt’s

constitutional theory. (To be completed.)

7. Arendt’s Constitutional Politics

Based on the above analysis, this paper would further argue that the relevance of

Arendt’s theory of constitution is better capitulated in her dialogue with Schmitt than

which Scheuerman (1998: 272) regarded as a more adequate version of democratic

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