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    Poitical Theology - By. Carl Scmitt (Hal. 16-35 Dan 53-66)

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    Ezra H. Utomo

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    Stadies in Contemporary German Social Thought Thomas McCarty, Genera Ear Theodor W. Adora, Ast Epre Heat “heed We Ade, Ps avon ape Undo on Expt: Tao Pepa Popa i. Bem etn, Habra en Metraty ‘Bow Bloch, Atv! La nd Han Dt) ans inner he pean of he es Ae Hans Bnet oh Febout Dubie My nd Poi Sta he Dement of tel Try Jan Foren eb, ual Thy a ae Le ans Georg Gada, Pina! rel Hun Geng Can Res te See Jigen Haba, Pp! etl fla . ‘igen Haberman, dor Obert or “The ial ti fe Ae Then Jour 6 Man otory Recaro fe Th Reha Kosch uses a a te ene fel Tne ‘hun Of coedtin of te Wafer Ste ‘Gaur Ofe, Dont pain: Cntr Terma Wek a it Seca natr, Se And Pg ned hy crn Je en me Pi Ea Me Poy Se fe Sch Hliy ond Sra: Bay on igo Mar and ‘Stacia Tro toy (Carl chi, Te uf arent Densrsy ‘Crt SchitePical Peg: Fur Chaps on che Coc gf Smee Michael Theunsen, Tv One Studr hScl Ona Hert ead, Sate, and Bub ——— Political Theology Four Chapters on the Concept of Sovereignty Carl Schmitt translated by George Schwab “The MIT Press, Cambridge, Massachusets, and London, England + PERPUSTAKAAH is “HE TAN" A Seholsb Tinge: Teoeg STERIL Relormed ini Tadones> ‘2a apne nd by Hii Uthgap inte Uc Sate mere afore ii roe meg wd a of ce sate Gowran che vee sy er Concenee | | | | entree | Seri Edt ovo wi ty em i Inet Tes pone i, reneteregrerpnnt grace ten coe oor gti eta re aie , srry mmaepeat ety rset 2? "be Soe : atures maaan 7 SPL ceadinhpetanset ie as er eenntentymmarraeregaicmen, | eoarguadmenitae ein teem thea omg hn a sme | ame rion asi anit Roto of 6 mses | RNa era ete prey nt ee Spat areiercee re nae a i fe an Ta hee he Scan, EPA NT non Ease z ‘The Problem of Sovereignty as the Problem of the Legal Form and of the Decision ‘When theories and concepts of public law change under the impact of political events, the discussion is influenced for atime by the practical perspectives of the day. Traditional notions are modified to serve an immediate purpose. New reales an bring about a new sociological interest and a reaction against the "for: rmalistic” method of weating problems of public law. But iti also possible for an effort to emerge tha separates juss rea ment from changes in political conditions and achieves scientific ‘objectivity precisely by 2 firm formal method of treatment. I is thus possible chat this kin of polticel sivation might produce vacious scientific tendencies an currents. ‘Of all juristc concepts the concept of sovereignty is the one most governed by actual interests. According to convention, che history of this concept begins with Badin, Lut one cannot say ‘that it has developed logically since che sixteenth century. The phases ofits eonceptwal development are characterized by various politcal power struggles, ne by & dialectical heightening inherent Db pe bias of Soerpay inthe characerntcs ofthe concept. Ban's concept of sovereignty was derived in the sixteenth century from che final dissolution oF Esrope into ational states and from the struggle ofthe absolute rlers withthe estates The ee consciowsnes ofthe newly created States was reflected inthe eighteenth century in Vatel’s concept (of sovereignty, which wae formulated within the context ofinter- national law, in the nevly founded German Reich it became necessary afer 1871 to advance a principle for distinguishing the authority of member sates from the federal state. On the ‘basis ofthis principle, the German theory ofthe state distinguishes ‘between the concept of sovereignty and the concept of the state ‘What is gained by ths distincion is tha individual taes may retain thei starus as states without being endowed with sover- cignty. Nevertheless, the old defisiton, in phraseological vari- ations, is always repeated: Sovereignty is the highest, legally lndependent, underived power: ‘Such a definition can be applied tothe mos different polticl- socilogical configurations and can be enlisted to serve the most varied political interests. Iti not the adequate expression of a reality but a formula, a sign, 2 signal. Ii infinitely pliable, and therefore in practice, epending onthe stuaion, ether exiremely seflor completly useless, Ietiizes the supenaive, “ihe highest power,” to characterize 2 true quantity, even though from the standpoint of reality, which i governed by the law of causality, no singe factor can be picked out and accorded such asuperative ‘in politcal reality there i na irresistible highest or greatest power that operates according to the certainty of natural law. Power proves nothing in law for the banal reason that Jean-Jacques Rousseau, in agreement with the spirit of his dime, formulated as follows: Fore isa physical power; the pistol tha the robber im ‘The Foblew of Sverany holds is also a symbol of power.' The connection of actual power ‘with the legally highest power is the fundamental problem of| the concept of sovereignty. All che dificulties reside here. What is necessary isa definition that embraces this basic concept of| jurisprudence, Such a definition cannot consist of general tt tological predicates but racher must specify the essential jusiic clement. “The most detailed treatment of the concept of sovereignty available in the past few years attempts a simple solution, This has been done by advancing « disjunction: socilogy/juripr dence, and with simplistic either/or obtaining something purely sociological and something purely jurinic. Kelsen followed this path inhi Das Probie der Souci nd de Mere des Vtherechts and Der suloguche und der jurutche Stoasbgrsf? To obtain ia ‘unadulterated purgy a system of ascriptions to norms and a last, uniform basic norm, all sociological elements have bees left out Of the juvstic concept. The old contrast between i and eught, between causal and normative considerations, has been tans- ferred te the contrast of sociology and jurisprudence, with greater ‘emphasis and rigor than had already been done by Georg Jelinek and Kisiskowsk, but with the same unproved certainyy, The application of digjuncions emanating from another cscpline fom epistemology appears tobe the fate of jurisprudence. Using this procedure, else arrived a the unsurprising result cha fom the perspective of jurisprudence the sate must be purely jurist, something normatively valid. It i not just any reality or any ‘imagined entity alongside and outside the legal order. The state 1 Tibingn DEA second pining apened in 1988) SP erik Spd hls itn sr ww ‘The Fobion of eran is nothing else than the legal order itself, which is conceived as 2 unity, ro be sure (That the problem resides precisely in this ‘conception does not appear to create any dilficlies) The stave is thus neither the creator nor the source of the legal order According to Kelsen, all perceptions tothe contrary are person fications and hypostanatons, duplications of che uniform and identical legal order in diferent subjects. The state, meaning the legal order, i a system of ascriptions toa last point of ascipion and to alas basie norm. The hierarchical order that is legally valid in the state rests on the premise that authoritations and competences emanate from the uniform central point to the lowest point. The highest competence cannot be traceable 0 a person oF 1 a sociopsychalogical power complex but only tothe sovereign ovder in the unity ofthe system of norms. For jristic| consideration there are neither real nor fictitious persons, only ‘points of ascription. The state is the terminal point of asription, the point at which the ascriptions, which consnute the essence ‘of justi consideration, “can top." This “point” is smultancously fan “order that cannot be further derived” An uninterrupted system of orders, ating from the original, che ukimate, from the highest toa lower, meaning 2 delegated norm, can be con- ceived in such a fashion. The decisive argument, the one that is repeated and advanced against every intellectual opponent, re- ‘mains the same: The basis forthe validity of a norm can only bbe a norm in jursticcerms the state is therefore identical with its constttion, withthe uniform basic narm. The catchword of this deduction is unity, “The wnity of the viewpoint of cogaition demands peremptorly a monistc view.” “The dualiss ofthe methods of sociology and jurisprudence ends {na monisic metaphysics. But the unity ofthe legal order, mean= 2 The hoten Sma ing the sae, remains ‘purged of everything sociological in the famework ofthe jurist. Is this jure unity of the same Kind 5 the worldwide unity of the entie system? How can it be possible to trace a host of positive attributes to a unity withthe ‘sme point of ascripcion when what is meant i not the unity of| ‘system of natural law or of a general theory of the law bur the unity ofa posiivewalid order? Words such as order, sem, and uni are only circumscriptons ofthe same pestulate, which ‘must demonstrate how it can be fulfilled in its purty. Was to lhe shown how a system can arze on the foundation of a “con- stitution” (which is either a further eautclogical circumscription of the “unity” or a brutal sociopolitical realty) The systematic unity i, according to Kelsen, an “independent act of jursic perception.” Let us for now disregard the interesting mathematical as- sumption that a point must be an order as well a¢a system and must also be identical with a norm; Ie us ask another question: (On what does the intllecsal necesty and objectivity of the various ascripions with the various points of ascription rest if does not rest on @ positive determination, on a command? As if speaking time and again of uninterrupted wnity and order ‘would make them the roost obvious things inthe word; as if a fixed harmony existed between the result offre jursic know! ‘edge and the complex that only in political reality consiates a unig, what ie discussed isa gradation of higher and lower orders supposedly found in everything chat is attached to jurisprudence {in the form of positive regulations. “The normative science to which Kelsen sought to elevate jur ispmudence in al purity cannot be normative in the sense that the jurist by his own fee will makes value assessments; he can n {The Roblen of Seren ‘only draw on the given (positively given values. Objectivity thus appears to be possible, but has no necessary connection with positivity (esiti. Although the values on which the jurist draws fre given to him, he confront them with relative superovy. He can construct a unity from everything in which he is intrested Jjuristiely, provided he remains “pure.” Unity and purity are ‘asly attained when the basi difficuly is emphatically ignored and when, for formal reasons, everything that contradicts the systems exchided as impure. One who does not take any chances and remains resolutely methodological, nor iustatng with even fone concrete example how his jurisprudence differs from that ‘which har been practiced unl now as jurisprudence, finds it cary tobe critical. Methodological conjuring, conceptual sharp- ning, and astute crtctng are only useful as preparatory work they do not come tothe point when arguing shat jurisprudence i something formal, they remain, despite all effort, in the antechamber of jurisprudence. Kelsen solved the problem of the concept of sovereignty by negating i. The resule of hie deduction is that "Whe concept of sovereignay must be radically repressed." This in fcr the old Iberal negation of the state vs-ivvs law and the disegard of ‘he independent problem ofthe realization of aw. This conception hhas received a significant exposition by Hugo Krabbe. His theory of the sovercignty of laws rests on the thesis that it not the state but law that is sovereign.’ Kelsen appears to see in him ‘only a precursor of his own doctrine identifying state and legal ppc iis rr ar Be tt ase gi Pe oe fe err em Wr) Sere Yor doa {The Fabien of Sega order. In fics, Krabbe's theory does share a common Weological oot with Kelsen’s resu, bu precisely where Kelsen was original, inhi me theres no connection between the exposition fof the Dutch legal scholar and the epistemological and meth- odological distinctions of the German neo-Kantian. “However ‘ne wants to approach it, the doctrine of the eovercigoty of law " as Krabbe says, “either a record of what is already real or a postulate that ought to be relied.” The mover ides of the state, according to Krabbe, replaces personal force (ofthe king, ofthe authorities) with spiritual power. "We no longer live under the authority of persons, be they natural or arcificial egal persons, but under the rule of laws, pritualforees. Ths isthe essence of the modem idea of the state.” He continues, "These forces rule in the strictest sense of the word. Precisely because these forces emanate from the spiritual nature of man, they can be obeyed voluntarily.” The basi, the source ofthe legal order, i “tobe found only in men's feling or sense of right." He condhdes, “Nothing can be said further about this foundation: fis the only cone that is real.” Even though Krabbe said he did not deal with sociological investigations into the forms of rule, he did engage in esentally secological explanations about the organizational formation of the modem state, in which the professional civil service, as an independent authority, identifies with the state, and in which the Gvil service status is represented as pertaining specifially to public lain contrast tothe status of ordinary service. The ds tintion berveen public and private law i radially denied, insofar asi ests on difference inthe realty of subjects" The further bhi eine ap {The Roblen of recy evelopment of decentralization and self government in all areas supposedly permis the modem idea ofthe sate to emerge more and moze clealy.Icis noe the state but law that is supposed to hhave power. “The old and oft-repeated view that power isthe aturbute of the state and the definition ofthe state as a mani- {station of powrer can be conceded under the sole condition that this power i acknowledged ae revealing itself in law and can have no effect except in issuing rules of law. What must be pointed out simultaneously is thatthe state reveals itself only in the making of law, be i by way of legislative enactment or by way of rewriting law, The state doesnot manifesiselfin applying laws oF in maintaining any sort of public inerest whatever.” “The only task of the state isto “make law,” that is, 10 establish the legal value of interests." "The concepe of the state must not bbe defined by reference to the care of any specific imeress| ‘whatever but soley by seferenceto the unique an original source ‘of lave from which all these interests and ll other interests derive their legal vale.” " ‘The state is confined exclusively to producing law. But this ‘does not mean that it produces the content of law Itdoes nothing ‘but ascertain the legal value of interests as it springs from the people's feeling or sense of right. Therein resides a double limi- ‘atin: fs, aimiacin on law, in contrast with icerest or welfare, in shor, with what i known in Kantian jrisprudence a "mates" second, @ imitation on he declaratory but by no means can- stitutive act of ascertaining Iwill show that the problem af law a5 a substantial form les precisely in this act of ascertaining. It must be observed that for Krabbe the contrast between lay and ‘The Problem Emery eres snot the same asthe contrast hetween form and matter ‘When he aseerted that all public interests are subject to lass, he ‘meant thatthe legal interest isthe highest inthe modern state, the legal value the highest value. ‘Antagonism toward the centralied authoritarian state brought Krabbe close to the association theory. His fg agninst the au thortarian state is reminiscent of the wellknown writings of | Hugo Preuss. Otto von Gierke, the founder of association theory, formulated his notion of the state as follows: “The will of the state or the sovereign is not the final source of law but is the ‘organ of the people convoked to express egal consciousness as it emerges frora the life ofthe people." The personal will of| the rulers spliced into the state as if into an organic whole. Yet law and sate were for Gierke “equal powers," and he answered the basic question on their mutual zelation by asserting that both 2re independent factors of human communal life, but one cannot bbe conceived of without the other, and neither exists before or ‘through the ther. Inthe instance of revalutionary consttional changes there is a legal breach, a breach in legal continuity that can be ethically required or historically justified; but it remains legal breach. As sucht can be repaired and can subsequently ‘receive a legal justification “through some sort of legal procedure that wil sais the legal eosciousness ofthe people,” forexample, constitutional agreement or a plebiscte or the snctiying power of tradition." There exists a tendency toward the recondition ‘of aw and power through which the atherwise unbearable "state 12.0 Conger Sones cen Src | 1 zat fr ocr Sn 3 0 HU nl te ak Se pa acces Tene sci se) ws. {The Trobiem of Brean ‘of tension” can be eliminated. The equality ofthe state with the law is nevertheless veiled in Gierke Because, acording to him, the nates lawgiving s only “the last formal eal” the state starmps (nthe law; it san “imprint ofthe state” that has only “extemal oral val." Tes what Krabbe calls a mere ascertaining of che legal value, which does not belong tothe character of law. This is why, according to Gierke, international law can be law even though it leks state character Ifthe state is pushed inc playing the role ofa mere proclaiming herald, then it can no longer be sovereign. On the basis of Gierke's association theory, Preuss rejected the concept of sovereignty asa residue of the author tarian state and discovered the comunity based on associations and constituted from below, as an organization that did net need ‘4 monopoly on power and could thus also manage without sovercignry. ‘Among the newer representatives of association theory i Kure ‘Wolaendosf, who has ried o use the theory to solve “the problem ‘of anew epoch of state." Among his numerous works, his lat inofthe greatest interest here Its starting point i thatthe state needs law and law needs the sate; but “lav, as the deeper principle, holds the state in check in the final analysis.""The stace |s the original power of rule, but it 9 as the power of order, asthe “form” of national life and nat an arbitrary force applied by just any authority. What is demanded of this power is tae it intervene only when the free individual or associational act proves to be insufficient it should remain inthe background as the ultima ratin, What is subject to order must not be coupled ‘with economic, social or cultural interests; these must be left to 14 Dist Wren Diy 91 i ge Tere ap, 81 (itd ca spe 20 TE SD eS” aoe gomne Satn 31988108-208, ‘The Fobion of Seria self-government. That a certain “manuity” belongs to self {government coald, incidentally, make Woltendors postulates dangerous, because in historical realty such historical pedagogic problems often take an unexpected turn from discusion to dic- {atorship. Woltendorf's pure state confines itself to maintaining ‘order. To this state also belongs the formation of law, because ail aw is simultaneously a problem of the existence ofthe state ‘order. The tate should preserve law; tis guardian, not master,” ‘guardian, not a mere “blind servant,” and “responsible and ul- timate guarantor.” Wolzendor sees in the idea of sovits an expression of this tendency to astociational sel? government, ¢o confining the state tothe “pure” finetion that belongs to i 1 don't believe chat Woltendorff was aware of how dose he came with his “ultimate guarantor” to the authoritarian theory ‘of the state, wich isso completely antithetical tothe associational and democratic conception ofthe state. This is why his Inst work, ‘compared with those of Krabbe and other representatives of the association theory mensoned, is particularly important. focuses the discussion on the decisive concept namely, that ofthe form in ts substantive sense. The authority ofthe order is valved #0 highly, and the function of guarantor is of such independence, ‘thatthe state is no longer only the ascertainer or the "externally {ormat” transformer of the idea of law. The problem that arises Js to what extent, with egal-logical necessity, every ascertainment and decision contains a canstiutive element, an invnsie value of form. Woliendorff speaks of form as a “sociopsychological phenomenon," an active factor in historical-politial if, the sige nificance of which consists in giving opposing politcal forces an opportunity t0 grasp, in the conceptual sucture of a state's 2 “The Frobien of Sven constitution, a frm element of calculation. The sate thus be- comes a form in the sense of a living formation. Wolrendorf* did not distinguish clearly between a form that seresthe purpose of calculable finctioning and a form in the aesthetic sense, a8 the word is used, for example, by Hermann Hefele ‘The confusion spreading in philosophy around the concept of form is repeated with expecially disastrous results in sociology and jurisprudence. Legal form, technical form, aesthetic form, and finally the concept of form in transcendental philosophy denote essentially different things 1s possible to distinguish three concepts of forrn in Max ‘Weber's sociology of law. In one instance, the conceptual speci- fication of the legal content whose legal form, che normative regulation, is as he says, bt only as the “causal component of| consensual acting" Then, when he speaks of diflerentations in the categories of legal thought, he equates the ward femal with the words ratioalize, profesional trained, and, finally, cocwable He thus says that a formally developed law is a complex of conscious maxims of decisions, and sthat belongs to it socio- i service status, and others, Profesional training, which means rational training, becomes necessary with the increased need for specialized knowledge. From this is derived the modem rationalization of law toward the specifically jusstic and the development of “formal qualities." 1s, “gute Foren fr pte Wen ny des fata ass 24 Sie Reh, gt Max Wr aw ya Sea Ma acy Cie, Ne be a on ly oma Re gt ag Sache oft ah arg ony Ps The hobiem of Sey Form can thas mean, fis, the transcendental “condition” of {urate cognition; second, a regularity, an evenness derived frorn| "Tepested practice and professional reasoning. Reeate ofits even ness and calelabilty, regularity passes over to the third form, the “rationalise” thats, echnical refinement, which, emerging from cither the needs of specialized knowledge or the interests of a jursically educated bureaucracy, is oriented toward cal= calablcy and governed by the ideal of Fetionles funcsioning ‘Weneed not he detained here by the neo-Kantian conception of form. With regard to technical form, it means a specification governed by utility. Although it ean be applied tothe organized Sate apparatus, it does not touch the “judicial form.” For example, ‘the miltary command in its specification isin ine withthe ech nical ideal, not che legal one. That it can be aesthetically valued, perhaps even be made to lend itself to ceremonies, does not alter its technicity (Tebweuti. The age-old Aristorelan opposites ‘of deliberation and action begin with wo distinc forms; whereas deliberation is approachable through legal form, action is p= ‘proachable only by a technical formation. The legal form is gov- temed by the legal idea and by the necessity of applying a legal ‘thought toa factual sivation, which means that it i governed by the selfevalving law in the widest sense. Because the legal idea cannot realize itself, it needs a particular organization and {orm before it can be translated into reality. That holds tue for the formation of a general egal normn into postive law as well as for the application of @ positive general legal norm by the Judiciary oF administration. A discussion of the peculariy ofthe legal form must begin with this ‘What sigaiicance can be given co the fact that inthe contera- porary theory of the state, neo-Kantian formalise has been » he Roblan of Sega thrown aside while at the same time, a form is postulated from an entirely diferent direction? Ie that another expression of hose eternal mic-ups that are responsible for making the history of philosophy so monotonous? One thing is certain to be recognized inthis modem theory ofthe state: The form should be transferred rom the subjective tothe objective. The concept of frm in Emil Lask’s theory of categories stil subjective, 2s ic must necessarily be in every epistemologiclly critical approach. Kelsen contia- dicted himself when, on the one hand, he took such a crcally derived subjecvst concept of form a¢ the searing point and also conceived the unity of the legal order as an independent {act of jorstic percepsion, bu then, on the other hand, when he professed his world view, demanded objectivity, and accused even Hegelian colecivism of a subjectvism of the state. The ‘objectivity that he claimed for himself amounted to no more than avoiding everything personals and tracing the legal order back to the impersonal validity of an impersonal norm. ‘The multifarious theories ofthe concept of sovereignty —thore of Krabbe, Preuss, Kelsen—demand such an objectivity. They agree that all personal elements must be eliminated from the concept of the state, For them, the personal and the command clements belong together. According to Kelses, the conception ‘of the personal right 10 command is the inviasc error in the theory of state sovereignty; because the theory is premised on the subjectivism of eommand rather than on the objectively val norm, he characterized the cheory ofthe primacy ofthe sate’ legal arder as “subjectvistie” and asa negation ofthe legal idea In Krabbe the contrast between personal and impersonal was linked with the contrast between concrete and abstacy, individual and general, which ean be extended to the contrast between Teen Toney suthorty and legal prescription, authority and quality, and in ts {general philosophical frrmulation to the contrast between person And idea. Confronting in this fashion personal command with the impersonal validity of an abstract norm accords with the [eral constitutional radcon of the nineteenth centary, which ‘was lucidly and interestingly explained by Alrens. For Preuss and Krabbe all conceptions of personaly were aftereffects of| absoluce monarchy. ‘All these objections fail to recognize thatthe conception of personality and ite cannecion with formal authority arose from 4 specific jursic interest, namely, an especially clear awareness of what the essence af the legal decision entails. Such a decision in che broadest sense belongs to every legal perception. Every legal thought brings a legal ia, which ia its purty ean never Ihecome reality, ita another aggregate condiion and adds an clement that cannot be derived ether from the content of the legal idea or from the content of a general posive legal nor that is to be applied. Every concrete jursic decision contains a moment of iniference from the perspective of content, because the juriic deduction is not taceable in the last detail . its premises and because the circumstance that requires a decision remains an independendy determining moment. Tis has nothing todo with the causal and psychological origins of sucha decision, eventhough the abstrace decision as such is aso of significance, ‘but with the determination of the legal value. The certainty of| the decision is, from the perspective of sociology, of particular meres in an age of intense commercial activity because in nu ‘merous cases commerce is ess concemed witha particular content ‘han with a calculable certainy. (So that I can accommodate myself accordingly, 1am ofien less interested in how a timetable a The bien of Seay determines times of departure and arsval in a particular case than in its functioning reliably) Legal commimication offers an example of such a cancer in the so-called formal striciness of the exchange law. The egal incerest in the decision a such should pot be mixed up with chs kind of caleulabiity. 1 6 rooted in the character ofthe normative and is derived frorn the necessyy of judging a concrete fact concretely even though what is given as a standard for the judgment is only a legal principle in its general universality. Thus a transformation takes place every time. That the legal idea canno: translate itself independently is ‘evident from the fac that t says nothing about who should apply| {Ta every transformation there i present an aucorat nea, A distincsve determination of which indvidval person or which concrece body can assume such an authority cannot be derived from the mere legal quality of a maxim. This isthe difculty that Krabbe ignored. ‘That its the instance of competence that renders a decision makes the decision relative, and in certain circumstances absolute and independent of te correcness of ts content. This terminates any farther discussion about whether there may stil be some doubt. The decision becomes instantly independent of argue _mentative substantiation and receives an autonornoxs value. The entire theoretical and practical meaning ofthis s revealed in the theory of the faulty act of state. A legal validity is asibured to a wrong and faulty decision. The wrong decision contains a con= scitutive element precisely because of its flseness. But what is inherent in the idea of che decision is that there can never be absolutely declaratory decisions. That constitutive, specific le- ‘ment of a decision is, from the perspective ofthe content of the underlying norm, new and alien. Locked at normatively, the a ‘The Problem of Sven decison emanates from nothingness. The legal force ofa decision 's differen from the result of subscantation. Ascription is not achieved withthe aid ofa norm; ichappens the other way around. ‘A point of ascription first determines wht a norm is and what normative rightness i. A point of asciption cannot be derived from a norm, only a quality of a content, The formal in the specifically legal sense contrasts with thie quality af content, not vvth the quantitative content of a causal connection. It should be understood that this last contrast is of no consequence to Jurisprudence ‘The peculiarity of the legal form must be recognined in its pure juristic nature. One should not speculate here about the philosophical meaning ofthe legal validly of a decision or about the motionlessness oF the “etemity” of la, of aw untouched by time and space, as did Adolf MerkL When Mert said that “a development ofthe legal form sempossble because it dissolves the identity," he disclosed that he basically adheres toa roughly {qaantizative conception of form. But from this kindof form i is inexplicable how a personalistic element can appear in the doc- twine of law and the state. This notion accords with the old constitutional tradition and its starting poine tha only a general legal prescription can be authoritative. The law gives authority, sid Locke, and he consciously used the word fw antthetially ‘co conmase, which means the personal command of the monarch, But he didnot recognize thatthe law does not designate to whom. it gives authoriy. Ie cannot be jus anybody who can execute and reali every desired legal prescription. The legal prescription, as the norm of decision, only designates how decisions should 13d iin eT. ve en be ey Sa ton ‘elchn Sen” don gp ch 7 CA, ep. 0 ha Fctlan a Hovey be made, not who should decide, Inthe absence of a pivotal authority, anybody ean refer to the correctness of the content Bu the pivotal authority not derived from the norm of decision, ‘Accordingly, the question is that of competence, « question that ‘annot be raived by and much less answered from the content of the legal quality of a maxim. To answer questions of com erence by referring to the material is to assume that one’s audience is fool ‘We can perhaps dlstingush two types of juistic stentifc thought according t0 whether an awareness of the normative character ofthe legal decison iso is not present, The lasical representative of the decsionist type (FT may be permitted 10 coin ths word) is Thomas Hobbes. The peculiar nanure ofthis type explains why it, and not the other type, discovered the lassi formulation of the antithesis: aula, no vers faci eg. ‘The contrast of aortas and wens is more radical and precise than is Friedrich ulus Stah's contrast: authority, noe majoring Hobbes also advanced a decisive argument that connected this type of decisionism with personalism and rejected all axempts to substitute sn abstrasy valid order for a concrete sovereignty ‘of che state, He discussed the demand that state power be sub- ‘ordinate to spinal power because the later ¢ ofa higher order. ‘To this reasoning he replied that if one “power” (pitted were to be subordinate to another, the meaning would be nothing ‘more than that the one who possesses power is subordinate to the other who possesses power: “He which hath the one Power {is subjec to him that hath the other." To speak of superior and inferior and attempt to remain simultaneously abstract ito him incomprehensible ("we cannot understand”) “For Subjection, 19th cap 2, 4 ‘Tae Foblow of Svergoy Command, Right and Power are acidens no of Powers bt of Pesors™* He date hs with one ofthese comparisons that inthe unmbtaableserness of his heal common ns, be sw how 1 apply so slkngy Power of ere ea be sul ordinate to anther jut asthe are ofthe nde is sabordiate {that of the er, but the important thing hat deste his thecaa ladder of ores, uo tne Ginks of scbordinating the Heda ender to every gle sider and. bling bm to obey. TEs king that one of he most consent represenaies of thie abaraxt sete rentaion of che seveterthceniry became so permonalnic This is becae a uri tinker he wanted to grep the realty of sot ie jut as much a he, 2a plonpber and natural acentst, ward to rap the realy ‘of mau He dd ot cover tha there i jor realy and Tie hat need oc be elt inthe see othe nana ecient Matheratal retin and nominal also operate cont emi. Often he seemed tbe able construc the ny of he Sat from any acblrary give pin. But rise hgh othe {ays had no yeebecoe overpowered by the ata senes that he, in Oe itely of his soi apron tod suspeingly have ovedooked the speci ely of legal if in event in the legal form. The frm that he sought es in the enerete deca ove ht emanates para iy. Ine independem meaning ofthe deco the xj ofthe decison hs an independent meaning part fom the quetion ‘content. What mates fo the realy ofall s wo decides Alongéde the quetion of subsanve corecness sande the ‘quton of competence, in the conrat between te avec and he, hp “The Proen FSoeeiy the content ofa decision and in the proper meaning ofthe subject lies the problem ofthe jursic farm. It does not have the a port ‘emptiness of the transcendental form because t arses precisely from the jurstically concrete. The jursic form is also not the form of technical precision because the later has a goal-oriented interest that i essentially material and impersonal. Finally, i is also not the form of aesthetic production, because the later Inows no decision, For him there was thus only one solution: dictatorship. It isthe solution that Hobbes also reached by the same kind of decisionist, thinking, chough mixed swith mathematical relatvirn, Audorts, no rita fc lege. ‘A detailed presentation ofthis kind of decsioniam and a thor- ‘ough appreciation of Donoso Cortés are nat yet available. Here it can only be pointed out thatthe theological made of thought ofthe Spaniard was in complete accord with the thoughe ofthe Middle Ages, whose construction was juritc, ll his perceptions, all is arguments, down co the last atom, were jars, his lack of understanding ofthe mathemasicil natural-sGentif thinking of he nineteenth century mirrored the owook of macaral-ecienific thinking toward decsionism and the speci logic ofthe jursic thinking that culminates in a personal decision. | | | 4 On the Counterrevolutionary Philosophy of the State (de Maistre, Bonald, Donoso Cortes) [German romantics portess an odd tral everlasting conversation Novalis and Adam Mille feel at home with it; them it con tutes the true realization of cheie spits. Catholic politcal phi- losophers such as de Maisie, Bonald, and Donoso Cortés—who are called romanties in Germany because they were conservative or reactionary and idealized the conditions of the Middle Ages ‘would have considered everlasting conversation a product of a igruesomely comic fantasy, for what characerized their coun {erevoluionary politcal philosophy was the recognition that dheir times needed a decision. And with an energy that rose to an ‘exteane between the fo revolutions of 1789 and 1848, chey thrust che notion of the decision to the center oftheir thinking. ‘Wherever Catholic philosophy of the nineteenth century was engaged) it expressed the idea in ane form or another tha there ‘was now a great altemative that no longer allowed of synthesis. [No medium exists, stid Cardinal Newman, bervcen catholic and atheism, Everyone formulated 2 big either/or che rigor of | Pn ‘Gn he Coser eeaonary Penh a the Sate which sounded more like dictatorship than everlasting ‘The Restoration fought the activist spirit ofthe French Rev ‘lution with ideas such as tration and custom and with the belief tat history progresses slowiy. Ideas ofthat sore cou have led to a complete negation of natural reason and to.an absolute ‘moralistic passivity that would have considered becoming active altogether evi Traditionalism had been theologically rested by |J-Lopusand P. Chase, by the lazer, incidentally, with references {o the setimentalisme allemand that was supposed tobe the source of such errors. In the final analysis, extreme caditionalism actualy ‘meant an iational rejection of every intellecwaly conscious Aecision, eventhough Bonald, dhe founder of traditionalism, was far removed from the idea of an everlasting evolution spurred in and of itself. But his intellect had an altogether different sruc- ture fiom that of de Maistre or even that of Donoso Cortés. ‘Bonald often showed himself to be surprisingly German. But his Delie in tradition never tured into something like Schelling’s philosophy of narure, Adam Millers mixture of opposes, oF Hegel's belief in history. For Bonald tradition offered the sle possibilty of gaining che content that man was capable of ac- cepting metaphysicaly, because the intellect of the individual was considered too weak and wretched to be able to recognize truth by itself What a contrast there to each of those three Germans in the horrifying picure that depics the course of humanity in history: a herd of blind men led by a bind man, ‘who gropes his way forward with a cane! The antideses and dliscinctions that Bonald was o fond of and that exmmed himn the name of a Scholastic contain in truth moral disjnetions—and not polarities in the sense of Schellng’s philosophy of nature, ra ‘Gn he Coumarevahainary Phanphy of We Sine ‘which reveal “indifference points,” or mere dialectical negations of the hiscorcal process, “I find myself constanly between two bysses, I walk always between being and nothingness.” Such moral disunctions represent contrasts between good and evil, God and the dev between them an either/or exis inthe sense ‘of life-and-death struggle that does not recognize a synthesis and a “higher third.” De Maistre spake with particular fondness of sovereignty, which essentially meant decison. To him the relevance of the state rested on the fac that it provided a decision, che relevance of the Church on its rendering of the last decision that could not be appealed. Infallbity was for him the essence of the decision ‘that cannot be appealed, andthe infaliblty ofthe spiritual oder ‘was of the same nature as the sovereignty of the stae order. ‘The two words talibilty and soereipury were “perfec syn- ‘onymous.” To him, every sovereignty acted asifit were infalibe, ‘every government was absolule—a sentence that an anarchist ‘could pronounce verbatim, even if his intention was an entirely tfferent one. In this sentence there lies the clearest anthesis in the entie history of political ideas. All the anarchist theories from Babeuf to Bakunin, Kropotkin, and Oto Gross revolve around the one axiom: "The people are good, but the magistrate is corrupible." De Maistre asserted the exact opposite, namely, that authority as such is good once it exists: “Any government is good once iti established," the reason being that a decision is inherent in the mere existence of a governmental authority, and the decison as such isin turn valuable precisely because, asfar asthe mosc essential issues are concerned, making a decision 1b Pi te wt on in 28 6 Cr mp de toe i Tyee tl eae ap s (On ie Courerevsnary Pilar oF he Se {is more important than how a decison is made. “Ie is definitely rot in our interest that a question be decided in one way oF another but thatthe decided without delay and without appeal.” In practice, not to be subject to error and not to be accused of ‘error were for him the same. The important point was that no higher authority could review the decison (Jost as revoltionary radicalism was far more profound and consequential in the proletarian revolution of 1848 than in the 1789 revolution ofthe third estate, the intensity ofthe decision ‘was also heightened in the political philosophy of the counter- revolution. Only by recognizing that tend can’we undersand the development from de Maistre to Donoso Cortés—fom le- gitimacy to dictatorship, That radial heightening manifested self inthe increasing sigificanee of the axiomatic theses on che nasare of man. Every political dea in one way or another takes a position fon the “nature” of man and presupposes that he is either “by ‘ature good” or “by nature evil" This issue can only be clouded by pedagogic or economic explanations, bur not evaded. For the rationalism of the Enlightenment, man was by nature ignorant and rough, but educable. It was chus on pedagogic grounds that the ideal of a “legal despotism” was jstfied: Unediucated hu- ‘munity is educated by a legislator (who, according to Rousseau's SovalContrct, was able “to change the nature of man" or unruly nature could be conquered by Fichte's “tyrant,” and the state became, as Fichte said with nave brutality, an “educational fac: tory.” Marxist sodalism considers the quetion of che nature of | ‘man incidental and superfluows because it believes tha changes ‘n economic snd socal conditions change man. To the committed atheistic anarchists, man is decisively good, and all evil i the result of theological though and its derivatives, including ll ideas | o (nthe Gomiensvoinony Piisopy Fe ae concerning authority, state, and government In the Saal Contract, with whose constructions in terms of the theory of the state de Maisre and Ronald were primarily concerned, man was by no means conceived to be by nature good! as Emest Seiliére has so splendidly demonstrated, only Roasteau’s later novels ‘unfolded the celebrated Rousseauian thesis of the good man. ‘Donoso Cortés, in contrast, opposed Proudhon, whose antitheo- logical anarchism would have to be derived consistently from the axiom of the good man, whereas the starting poin forthe ‘Catholic Spaniard was the dogma of Original Sin. But Donoso Cortés radicalized thie polemicily foo a doctrine ofthe absolute sinfulness and depravity of human nature. The dogrna of Original Sin promulgated by the Council of Trent is not radical in any simple way. In contrast othe Lutheran understanding, the dogma assert not absolute worthlessness but only distortion, opacity, ‘or injury and leaves open the possibilty of the natural good, Abbé Gaduel, who criticized Donoso Cortés from the standpoint (of dogma, was therefore right when he wiced misgivings about his exaggeration of the natural evil and unworthiness of man. ‘Yer it was certainly not right to have overlooked the fact that for Donoso Cortés this was a religious and politcal decision of colossal actualiey, and not just the elaboration of dogma. When he spoke ofthe natural evi of man, he polericzed agenst atheist ‘anarchisn and its axiom of the good mans he meant yawns and not devas. Even though it appears that he agreed here with Lutheran dogma, his postion was diferent from the Lu- ‘heran, which mandated obedience so every authority he thus retained the selEconfident grandeur of a sptiwal descendant of| the Grand Inquisiors ss (nthe Coantensvlatanary Pop ote ar “What Donoso Cortés had to say about the natural depravity land vileness of man war indeed more homible than anything Uhat had ever been alleged by an abscitis philosophy of the sta in justifying stuthoritarian rule. De Maistre too was capable of being shocked by the wickedness of man. His uterancee the nature of man gained force fom his lack of dsions about morals and rom solitary prychologicl experiences. Bonald was no less clear about the Randamentaly evi natin of man and recognized the indestructible “wil to power," as do moder. psychologists. But his conception of aman nature pales in com- parison othe outbursts of Donoso Cortés, whose conte for ‘man knew no lis: Man's bind reason, is weak will ad the ‘diols vialiy of his carnal longings appeared to him so pitable that all words in every human language do na sufice to express the complete lowness ofthis ereaare. Had God not become ran, the reptile that my fooe amples would have been less ‘omtemptuous than a human being: "El repel que piso con mis is, seria & mis ojor mence desprecable que el hombre.” The stupidity of the masse was jst 38 apparent to im as wae the silly vanity oftheir leaders. His marenes of sin wa univeres, hhe was even more horrified thn a Puritan, No Rusia anarchist, in asserting that “man is good" expressed a greater degree of

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