Abstract
In the “Preface to the Second Edition” of Political Theology, probably his most notorious work, and certainly the one that has received the most attention in recent years, Carl Schmitt references what appears to be an abrupt shift in his thinking - a shift that has been conspicuously overlooked by many of his contemporary readers. Revising the broad outline of legal theory he provided in the 1922 edition of the text, Schmitt’s “Preface” dated “November 1933” claims to “distinguish not two but three types of legal thinking.” To ‘the normativist and the decisionist types’ explored initially, Schmitt now adds a third: what he calls “the institutional one”. Whereas he had formerly proposed that all legal theories seek to root law in either impersonal norms or personal decisions, and had clearly indicated his preference for the latter, Schmitt now acknowledged the existence of a “institutional legal thinking” that “unfolds in institutions and organizations that transcend the personal sphere” and that “leads to the pluralism characteristic of a feudal-corporate growth that is devoid of sovereignty.” More accurately, if Schmitt had previously suggested that all norms rely on decisions that they must conceal, and that even the most objective legal order is ultimately founded on an exception that it can neither contain nor eliminate, he now admitted the possibility of an institutional “order” that was at least coextensive with decisions, or that decisions would have in some sense to negotiate. In the first edition of Political Theology, Schmitt had insisted that the sovereign decision has the qualities of a miracle, and that “[t]he exception [Ausnahmezustand] in jurisprudence is analogous to the miracle [Wunder] in theology,” meaning that it has no rational derivation, but seems to emanate from the void, utterly bereft of prior conditions. Now he proposed that decisions are structured by “institutions and organizations” that can exist independently, or even “devoid of sovereignty.” Schmitt elaborated upon this new schematization of legal thinking in a work that was published the same year as the second edition of Political Theology , namely On the Three Types of Juristic Thought . “Every jurist who consciously or unconsciously bases his work on the concept of Recht ,” Schmitt begins there, “conceives of this Recht either as a rule [i.e. norm] or as a decision, or as a concrete order and formation [Gestaltung]” (Schmitt 2004 [1934]:43). He goes on to argue that, while these three types of juristic thought - rule/norm, decision, and order - invariably commingle in any actual legal system, every system nonetheless seeks to elevate one of them to a dominant position. And since, on Schmitt’s account, it is clear that rules or norms cannot ground themselves - that “every norm presupposes a normal situation” and is “bound to concrete concepts of what is normal” which themselves “are not derived from general norms” (Schmitt 2004 [1934]:56) - the most significant question for legal theory is the exact relationship between decisions and institutions, or decisions and the “concrete order.” This small textual detail has, I would like to suggest, significant implications for the manner in which Schmitt is read today, and for the recent revival of interest in Schmitt’s work. It also has important ramifications for contemporary theories of the relationship between the state, security, and subjectivity.
Original language | English |
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Title of host publication | State, Security, and Subject Formation |
Editors | Anna Yeatman, Magdalena Zolkos |
Place of Publication | U.S. |
Publisher | Continuum |
Pages | 50-60 |
Number of pages | 11 |
ISBN (Electronic) | 9781441102249 |
ISBN (Print) | 9780826442840 |
Publication status | Published - 2010 |