Sovereignty and the Constitutional State: On the Systemic Self-Referencing and Differentiation in the Kelsen-Schmitt Debate

Chapter 3
Sovereignty and the Constitutional State: On the Systemic Self-Referencing and Differentiation in the Kelsen-Schmitt Debate

Many books and articles have been published recently about the Kelsen-Schmitt debate and other scholars’ work and ideas related to these close-to-a-century-old controversies regarding the methodology of legal science and its relationship to other social sciences and disciplines of philosophy.1 Why do current legal theorists concern themselves with this archaeology of jurisprudential knowledge and engage in various reinterpretations of scholars such as Kelsen, Schmitt, Ehrlich, Heller and others and the application of their theoretical concepts to our systems of globalized law and politics?

Adherents of international and global legal normativism recall Kelsen’s pure theory of law and apply its monism to the juridification of international, supranational and global politics.2 Critics of this juridification often employ Schmitt’s decisionist theory to preserve the agonistic, open and deliberative character of politics. Surprisingly, Schmitt has thus inspired many radical critics of political and legal globalization and the emergence of a global liberalism of human rights.3 In this time of profound structural changes and crises in Europeanized and globalized law and politics, legal and political theorists continue to look for their conceptual framework and inspiration in grand theoretical concepts and disputes that inform theoretical debates reflecting on the evolution of modern legality and both national and international politics.

Introduction: a Systems Theory Interpretation of the Kelsen-Schmitt Debate

The aim of this chapter is to reinterpret the classic Kelsen-Schmitt debate in the context of current social systems theory and retrospectively rethink its major concepts and arguments as early reflections on modern legal and political self-reference and functional differentiation. The early functional differentiation of politics and religion, which had been already captured by the concept of sovereignty in Hobbes’s philosophy, was reformulated in modern political and legal theory as the differentiation of law and politics, and the famous theoretical and methodological controversy between Kelsen and Schmitt is one of its finest examples.

Kelsen and Schmitt’s theories obviously were constrained by modern semantics of the constitutional state, sovereignty and international law and cannot be treated as early examples of theory of self-referential and functionally differentiated autopoietic social systems. Nevertheless, specific forms and conceptualizations of legal and political self-reference of the state and the functional differentiation of law and politics elaborated by both scholars are applicable to the current autopoietic systems of globalized law and politics unlimited by the state’s organization.

In Kelsen’s case, it is the exclusion of sovereignty from juridical logic that opens a way to the self-reference of positive law as a normatively closed and socially autonomous subsystem operating at national, European and global level. Similarly, Schmitt’s contribution to current political and constitutional theory consists of addressing the problem of the social differentiation of politics and economy, law, administration and religion and identifying the friend/enemy distinction as the binary code of politics. Schmitt constructed his concept of the political as a self-referential system of political operations protected from the social environment by the medium of power. Unlike many other constitutional and international law scholars looking for sovereignty’s territory and political location, he identified sovereignty with a system of general power operations. This system, therefore, is not limited by the nation state’s framework and can be adopted by current theories of supranational and transnational law and politics.

Drawing on these reflections and retrospective interpretations of Kelsen and Schmitt’s theories as specific examples of legal and political self-reference, functional differentiation and the self-limitation of law and politics, I critically argue that the process of legal and political Europeanization and globalization effectively rules out the possibility of formulating substantive theories of the sovereign state associating this particular social organization with metaphysical values and an ultimately self-validating collective identity and pre-political existence. Despite elements of political existentialism in Schmitt’s theory of constituent power, Kelsen and Schmitt both continue to be influential and inspirational figures of current non-metaphysical theories of globalized law and politics. However, the constitutional state and sovereignty need to be reformulated as a meeting point of functionally differentiated and globalized legal and political communications and not as their ultimate end or substance.

Yet Another Lesson from the Kelsen-Schmitt Debate?

The close-on-a-century-old polemic between the Pure Theory of Hans Kelsen and the decisionist legal theory of Carl Schmitt has become the centre of gravity of many discussions of sovereignty, constitutionalism and the popular will, including recent debates on European constitutionalism and Euro crisis. In one of the most important studies of the concept of sovereignty to appear in the last century, Carl Schmitt remarked: ‘A jurisprudence concerned with ordinary day-to-day questions has practically no interest in the concept of sovereignty’.4 According to this view, the routinization of jurisprudential issues obfuscates the true nature of politics as the realm where a sovereign decides. Schmitt’s notorious and much-quoted definition of a sovereign as ‘he who decides on the exception’5 provides a picture of sovereignty as the indivisible and unlimited authority to suspend the entire existing order of positive law. In this state of exception, the rule of law and legal mechanisms based on repetition and predictability give way to the power of real life, and the decision in its absolute purity becomes the supreme juristic element governing the immanent validity of legal norms.

Schmitt’s concept of sovereignty is complex and inspirational for radical thinkers of both the political Left and Right. However, political science and philosophical interpretations often neglect its normative jurisprudential aspect. Schmitt’s study was a critical response to the legal normativist thinking of Hans Kelsen who claimed that ‘the concept of sovereignty must be radically repressed’6 and transferred the problems of both state sovereignty (constituted power) and popular sovereignty (constituent power) to the sovereignty of laws.

Kelsen’s Pure Theory of law disposes of the state and its sovereignty as a theoretical problem. Identifying the state with legal order, it represented the liberal positivist and normative project, a primary target of Schmitt’s critique. Kelsen, indeed, did not deny the existence of political power and accepted the truism that the law cannot exist without power. However, he insisted that any legal state required all acts of political power to be expressed exclusively through the medium of law. Political acts are legally mediated and, therefore, must observe the criteria of legal validity. The essence of the modern state is the rule and authority of laws. The fact that a legal order is sovereign is merely a logical consequence of the system having its basic norm. The state’s only function is to make law and thus to establish the legal priority and importance of different political interests. If a political act violates the basic norm, society faces the problem of revolution which, if successful, results in the constitution of a new legal system with its own basic norm.7

For Kelsen, the state is the agency that exercises political power in conformity with the laws. It is an acting subject represented by the acts of its legally qualified officials, which are authorized by a higher-level norm. Legal authorization is thus regressive and the final normative authorization can be traced back to a ‘first constitution’ enacted by a self-empowered agency, either an individual lawgiver, or a collective legislative assembly. Kelsen’s basic norm is consequently nothing but a self-referential act of original legislation that is not empowered by the system of positive law.8 However, the self-creation of a legislative body and its self-authorization are contradictory terms because each act by a state official requires legal authorization. The historical first lawgiver, therefore, is authorized retrospectively by the pure basic norm. The possibility of the sovereign exercise by the people of their constituent power becomes nothing more than a self-empowered act of self-constituted power of an assembly or an individual lawgiver.9

The juristic perception of the systemic unity of law, labelled a ‘monistic view’ by Kelsen,10 ignores the connection between actual power and supreme legal authority. For Kelsen, ‘the people’ is a juristic fiction.11 The unity of the people and its representative leaders as the first presupposition of democracy may only be established in a purely normative sense and at the level of the unity of the state’s legal order which governs the behaviour of all its inhabitants.12

Schmitt was fundamentally critical of the concept of law as a dynamic self-regulatory and self-creating system reducing political sovereignty to the problems of legal authorization and validity. According to him, constitutional developments within the modern liberal state seek to eliminate sovereign power. However, the valid system of positive law, although informing the operation of the constitution, does not have the power to decide whether the constitution in its entirety can be suspended.

According to Schmitt, ‘whether the extreme exception can be banished from the world is not a juristic question’13 and Kelsen’s Pure Theory is ‘the ideology of the lawyer-bureaucrat practising in changing political circumstances, who, under the most diverse forms of authority and with a relativistic superiority over the momentary political authority, seeks to order systematically the positive decrees and regulations that are handed down to him’.14 Schmitt’s critique of Kelsen’s neo-Kantianism, therefore, was a critique of the legal form based on the notion of the self-referential basic norm governing the formation of a system of positive law as well as the application of a positive legal norm by the judiciary or administration.

However, these preliminary descriptions and comparisons need to be substantially expanded and further qualified and contextualized to critically assess and appreciate the importance of both theories to the current debates regarding the supranational and transnational European and global legal and political systems and the persistence of the semantics of sovereignty in these profoundly post-sovereign settings.

Value Integration Replaced by the Sovereign’s Self-Reference

In his study Politische Demokratie und soziale Homogenität (Political Democracy and Social Homogeneity), Schmitt’s intellectual and political opponent Hermann Heller defined sovereignty in terms of territoriality, exclusive nature, power hierarchy (the highest power on the state’s territory), independence and irresistibility.15 Though Heller famously criticized Schmitt’s pre-political existential concept of constituent power, he held the view that shared political values were a precondition of democracy’s success and resilience. He argued that a minimum level of social homogeneity was necessary for democratic unity.

In opposition to Schmitt, Heller claimed that:

… the intellectual basis of parliamentarism is not the belief in public discussion as such, but belief in the existence of a common ground for discussion and in fair play for the opponent, with whom one wants to reach agreement under conditions that exclude naked force.16

Heller’s treatment of the social plurality of modernity was thus based on a conventional view of parliamentarism and the public sphere as the foundations of civilized discussion and deliberation resulting in reasonable political compromise and the elimination of violence. However, it is the social fact of shared values guaranteeing social homogeneity and cultural value integration that is the precondition of such discussion. Factual social homogeneity is indispensable for normative constitutional and political legitimacy. The recognition of social values precedes the validity of legal norms and the acceptance of political decisions.17

Indeed, Schmitt’s political and legal philosophy has often been interpreted as a kind of return to political metaphysics and a critique of modern legal and social scientific positivism which takes the social and existential unity of the sovereign people as substance and the normative unity of law as its form. This misreading is based on a common mistake, seeing the constitutional state as just a form of the substantive constitution of society.

However, Schmitt actually denied the possibility of substantive unity in modern political society and emphasized the impossibility of identifying the constitution of the state with the constitution of society. He recognized social plurality full of political and moral ruptures, normative and value conflicts and differences impossible to reconcile by some form of political negotiations and rational consensus or morality. In this sense, Schmitt’s theory is a lot more radical than Heller’s democratic search for common ground and political integration through shared values.

Schmitt’s notion of the social unity and homogeneity of the constituent power of the people, therefore, is not to be taken as the substantive precondition for democratic or any other politics and the constitutional state. His ontological premise that a concrete, living order of a sovereign people precedes the normative order of law does not mean that the political order could restore a substantive natural order to society and its politics.18 His constitutional theory is based on the supremacy of the existing constituent power over constituted power and, therefore, the supremacy of the political sphere and its sovereign decisions over the legal sphere and its hierarchy of authorized legal norms or the moral sphere of generally shared values.19

Schmitt insisted that the political self-constitution of the actually existing people precedes any legal normative interpretation and conceptualization of the constitution and constitutionalism.20 According to him, the state does not have a constitution because ‘the state is constitution’ and ‘an actually present condition, a status of unity and order’.21 It is self-legitimized by its existential status and not recursively validated by a set of constitutional norms or moral values. Unlike Hobbes, who could not ask the question of constituent power as political agency in his times,22 Schmitt constantly questioned the existential process of transforming the social multitude into political unity and considered it the self-reference and self-legitimation of the sovereign’s decision.23

Social Totality and the Functional Differentiation of Politics

As regards the functional differentiation of modern society, especially economy, politics and law, Schmitt’s political theory obviously cannot be treated as intrinsic part of the functionalist social science paradigm. Nevertheless, Schmitt was aware of the process of functional differentiation of modern society. Schmitt’s theory is deeply ambivalent about this differentiation and both represents its radical critique and adopts it as a necessary precondition of the concept of the political and sovereignty.24 Schmitt’s view that the state is ‘defined and understood from the political’25 and ultimately converts the political pluriverse to its universe is an example of the functional differentiation of politics.

This differentiation needs to be analysed in the context of Schmitt’s belief that the political sphere is to be protected from various social contaminations such as ethics, economy, religion, administration and so on. Schmitt refused to consider the state as a socially totalizing organization because the absorption and total state control of society leads to the destruction of politics. He criticized the concept of the total state politically controlling and administering the totality of social life but equally dismissed all theories contrasting state and society, and the liberal notion of the neutral state operating side by side with the depoliticized spheres of economy and law.26

Schmitt considered the total state and the Western liberal concept of the state as just two different forms of the same general modern view of the state as a functioning machine based on the notion of social administration and the technical neutralization of politics.27 According to him, modern society tends to establish total states penetrating all social spheres. The total state is, by its nature, the administrative state, drawing on instrumental legality and the technical powers of bureaucracy. As early as 1931, Schmitt analysed two alternative forms of this tendency – the weak ‘quantitative’ welfare state and the strong ‘qualitative’ total state, such as Mussolini’s fascist state.28

Schmitt thus considered functional differentiation as an intrinsic part of his political theory of sovereignty. The highest risk for politics is its colonization by other codes of social communication, such as profit, the moral good and worthiness, efficiency and so on. In The Concept of the Political, Schmitt states:

The equation state = politics becomes erroneous and deceptive at exactly the moment when state and society penetrate each other … Heretofore ostensibly neutral domains – religion, culture, education, the economy – then cease to be neutral in the sense that they do not pertain to state and to politics. As a polemical concept against such neutralizations and depoliticalizations of important domains appears the total state, which potentially embraces every domain. This results in the identity of state and society. In such a state, therefore, everything is at least potentially political, and in referring to the state it is no longer possible to assert for it a specifically political characteristic.29

These statements indicate Schmitt’s awareness of the self-constitution of different codes of communication and the functional rationality of specific social systems which is further emphasized by the following conclusions:

Let us assume that in the realm of morality the final distinctions are between good and evil, in aesthetics beautiful and ugly, in economics profitable and unprofitable. The question then is whether there is also a special distinction which can serve as a simple criterion of the political and of what it consists. The nature of such a political distinction is surely different from that of those others. It is independent of them and as such can speak clearly for itself.

The specific political distinction to which political actions and motives can be reduced is that between friend and enemy … Insofar as it is not derived from other criteria, the antithesis of friend and enemy corresponds to the relatively independent criteria of other antitheses: good and evil in the moral sphere, beautiful and ugly in the aesthetic sphere, and so on. In any event it is independent, not in the sense of a distinct new domain, but in that it can neither be based on any one antithesis or any combination of other antitheses, not can it be traced to these.30

Schmitt thus aims at dissociating the political from the moral, aesthetic and other social spheres. The political does not have moral, economic or any other social foundations. It is reproduced through the irreducible distinction of ‘friend’ and ‘enemy’.

The Suppression of Sovereignty by Legal Self-Reference: on Kelsen’s Pure Legal Normativity

Despite many principal theoretical and political differences, Schmitt’s critique of political integration by social values is surprisingly close to Kelsen’s view of the social multitude and plurality which also goes beyond conventional views of the political morality and value integration of modern representative democracy.

Kelsen uses the sociological argument to claim that a democratic polity is typical of social (national, economic, religious and so on) conflicts and frictions.31 He is highly critical of Schmitt’s political theory and claims that democratic sovereignty as collective self-rule does not derive from the pre-existent unity of a political collectivity and its self-constitution in the existential sense. The alleged unity of a democratic collective subject is impossible to formulate through the pre-political and pre-constitutional self-reference of this constituent power of a democratic community.32

Kelsen admits that constitutional principles can be interpreted sociologically and that, for instance, majority rule appears to be informed by the sheer power of social integration. The application of these constitutional principles may be limited by natural social barriers, such as culture and language.33 Nevertheless, cultural divisions need to be left to the constitutional principle of political autonomy to avoid the abuses of majority rule and state centralization.

Kelsen thus firmly insists that the only deparadoxification of the substantive concept of the political community empowered by the legal force of a legal constitution is by converting the social multitude into the self-reference, self-constitution and pure self-grounding of the positive system of legal norms. Political concepts of democratic self-empowerment and constitutional representation become part of legal semantics regulated by the fictions of the basic norm and the first lawgiver. Democratic collective agency can be approached only regressively as the end point of legal attribution. The problem of the social multitude, which may be turned into constituent power and act politically, is eliminated, and discussions of the political will and acts of constituent power are replaced by the normative problem of the legal authorization of constituted power.34

Kelsen was absolutely clear about the links between the social multitude, the political unity of the people, and its legal representation in the democratic state when he stated:

[I]t seems to be a basic condition of democracy that a multitude of human beings becomes a unity in it. For democracy, the “people” as a unity is even more essential, as it is not only, or not so much the object as the ruling subject – or should be, according to the idea … Split by national, religious, and economic conflicts, that unity is – according to sociological findings – more a bundle of groups than a coherent mass of one and the same aggregate state. Only in a normative sense can one speak of a unity. For the unity of the people as a concord of thought, feeling, and desire, as a solidarity of interests, is an ethical political postulate declared to be real by the national or state ideology by means of a fiction that is generally used and therefore no longer thought about.35

According to Kelsen, the legal system can accommodate the political agency of constituent power only in terms of power exercised in conformity with the law, that is, as constitutionally self-referential constituted power. The general will of the political community and its political formation as the state’s will are just conceptualizations of the normative order of the community. The state’s will is an anthropomorphic expression of the community’s order that normatively predetermines the behaviour of a multitude of individuals belonging to it.36 The law can think of power and authority only as legal power and authorization and not some form of sovereign decision preceding and founding the law’s normativity.37

Kelsen was always prominent among critics of the concept of sovereignty, and his call for its radical suppression in the name of pure theory of law is still considered one of the most complex and methodologically persuasive theoretical criticisms of sovereignty.38 According to his theory, normative logic was expected to spare legal and political scholars the voluntarist extravagancies associated with political sovereignty. The political reality of conflicts, clashes and particular interests was to be eliminated from the realm of pure legal normativity and science.39

Kelsen’s doctrine of the basic norm reformulated the self-referential paradoxes of constituted and constituent power – as the juridical self-reference of legal normativity. This conceptualization of sovereignty as a process of legal self-reference permanently communicated through the medium of legality was possible only by theoretically excluding all social and political facts and translating them into legal norms and exclusive legal concepts. Sovereignty was reduced to ‘a quality of a normative order’40 devoid of any political meaning, especially the meaning of popular sovereignty as politically constituent power preceding all legally normative qualification of the democratic state.

The constitutive function of the basic norm, therefore, consists of a retrospective normative interpretation of the empowering sovereign act of constituent power as an empowered act.41 This reinterpretation of the exercise of constituent power as an already legally constituted exercise is the only way to bring legal order to its existence.42 Kelsen argued that, from the perspective of legal logic, the political concept of self-empowerment was a contradiction in terms and that:

[F]undamentally, only a legal element can be conceived more or less precisely as the unity of the people: the unity of the state’s legal order, which rules the behaviour of the human beings subject to its norms. In this unity and through the content of its norms, the unity of the variety of human action is constituted, which the ‘people’ as an element of the state, as a specific social order, represents.43

In Kelsen’s pure theory of law, the paradox of the normativity of the factual thus takes the form of the recursive self-reference of the legal system and gets reformulated as the facticity of the normative authorization of constituent power. The state is identified with the system of positive laws. Exclusivity, supremacy, independence and other aspects of sovereignty become operations of the legal system.

Self-Limiting Sovereignty and International Legal Monism

The concept of sovereignty as self-limitation of the state’s power can already be found in Georg Jellinek’s theory of public law and the state in which he proclaimed that sovereignty was ‘the quality of a state in virtue of which it alone can be linked legally with its own will’.44 Unlike the concept of sovereignty as exclusivity and political externality, Jellinek’s notion of sovereignty drew on the self-obligation and limitation of power of the modern state emerging through the medium of constitutional law.

According to this view, exclusive sovereign power coincides with power to constitute legal obligations on exercising this power. However, Kelsen stretched Jellinek’s concept of sovereignty as legal self-limitation further when he replaced it by the concept of legal authorization and defined in terms of international law.45 Emphasizing legal normativity and connecting it to the universality and objectivity of the international legal domain, Kelsen sought to eliminate the nation state’s institutional and territorial constraints dictated by sovereignty and make it part of a general theory of international legal monism.46

Following his earlier refutation of the concept of sovereignty, and in an effort to rebuild international law and politics after the Second World War, Kelsen, as early as in 1944, proposed that:

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