Pérez Crespo, Carlos Eduardo

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Carl Schmitt, the Arbitrary Character ofConstituent Power, and the Tradition ofEuropean Public LawCarlos Perez Crespo 2020-12-19T11:00:51In this comment, I engage with Chapter 3 of Lucia Rubinelli’s book, which is anessential contribution to the study of constituent power in the Weimar Republicand the reception of this idea in the work of the controversial jurist Carl Schmitt(1888-1985). My thoughts are organized into two sections. In the first, I summarizeRubinelli’s reading of Schmitt’s understanding of constituent power in Weimar. Mymain criticism concerns Rubinelli’s reading of the arbitrary character of constituentpower in Schmitt, which in my view insufficiently reflects Schmitt’s distinctionbetween dictatorship and despotism. In the second part, I turn to the historicaltransition of constituent power that Rubinelli detects between the 19th-centuryFrench lawyers and the Weimar Republic. I point out that there is a missing linkin Rubinelli’s history of Schmitt’s constituent power: the dialogue between thelanguages of German state theory (Staatslehre) and French public law (Droit Public)in the early 20th century.Carl Schmitt and the Arbitrary Character ofConstituent PowerRubinelli begins Chapter 3 by stating that to understand Schmitt’s use of constituentpower, one must be aware of his conception of sovereignty as well as of thechallenges the Weimar Republic placed on the idea. Rubinelli argues that Schmittdevelops constituent power to apply his theory of sovereignty to justify the Reichpresident’s dictatorship, according to Art. 48 of the Weimar constitution in democraticterms. According to Rubinelli, for Schmitt, “the sovereign, standing beyond andabove the legal structure, is […] the political entity that can decide over the creationor the suspension of the constitution” (p. 109). Rubinelli reconstructs Schmitt’sconception of sovereignty, as it is developed in key works, such as PolitischeTheologie (1922), Die Diktatur (1921), Legalität und Legitimität (1932). She explainshow Schmitt’s work emerges as a critique of legal positivism, where his commentsfocused on the works of Thoma and Kelsen, who, according to Schmitt, havesacrificed the essentiality of the constitution (pp. 113–114). For Rubinelli, Schmitt’sinterest in Sieyès derives from the fact that “this allowed him to wage a powerfulcritique of the politics of Weimar as well as to sketch a solution for its multiplecrises” (p. 115).Rubinelli differentiates three characteristics of Schmitt’s reading of constituent powerin Sieyès. First, Rubinelli highlights the arbitrary character that Schmitt ascribes tothe concept of constituent power. She points out that while for Egon Zweig, whose- 1 -seminal Die Lehre vom Pouvoir Constituant was published in 1909, constituentpower was a “testimony of the Enlightenment,” for Carl Schmitt it exemplifiesthe arbitrary nature of political decisions. For Schmitt, “there was no underlyingrationality to be found in the nation’s constituent power, as this could not be deducedfrom any a priori cause” (p. 116). The second characteristic of the constituent powerin Schmitt, according to Rubinelli, is its exceptional character in its omnipotence:“Being fundamentally discretionary, it does not depend on any norm or value and,similarly, cannot be bound by any” (p. 116). Schmitt paraphrases Sieyès andpoints out that constituent power is unlimited and can do anything because it is notsubordinate to the constitution. Furthermore, Schmitt sees in Sieyès a political theoryin which the nation remains as the bearer of constituent power in an unorganizedand unorganizable way. The third characteristic of constituent power, for Rubinelli,is its inalienable character. That means that after the sovereign decision, theconstituent power does not disappear; instead, it remains an irreducible force withinthe constitutional order. For Schmitt, the idea of constituent power in Sieyès perfectlyexpresses the impossibility of constraining sovereignty through legal language. Thedistinction between pouvoir constituant and pouvoir constitué is to ensure that theexercise of delegated powers is limited and constrained by the existing constitution.Rubinelli concludes that the concept of pouvoir constituant played an essentialrole in Schmitt’s writings in Weimar because “it offered him the language throughwhich he could redefine the democratic principle of popular power to make itconsistent with his understanding of sovereignty” (p. 135). Rubinelli argues thatbetween Schmitt and Sieyès, there is a parallelism in understanding the nationsuch that it supports their political agendas: “what for Sieyès was the Revolution,for Schmitt was the Weimar Republic” (p. 137). However, Rubinelli believes thatSchmitt misinterprets Sieyès’ theory of sovereignty, which instead of a legitimationof dictatorship in democratic terms sought to avoid the danger of despotism. ForRubinelli, this difference between the conception of the pouvoir constituant in Schmittand Sieyes went unnoticed in Weimar. Moreover, Rubinelli accepts that Schmitt’stheoretical proposal has been influential in the work of legal scholars such asCostantino Mortati in Italy and Ernst-Wolfgang Böckenförde in Germany. Rubinellipoints out, though, that in contrast to these later receptions, the appeal of Schmitt’sdefinition of constituent power lies in “his critique of liberalism in general and ofliberal parliamentarianism in particular” (p. 139).My impression here is that Rubinelli exaggerates the arbitrary character ofconstituent power in Schmitt’s theory, considering that he makes a distinction,in the introduction to Die Diktatur, between dictatorship and despotism. Thedictatorship of the sovereign constituent power (souveräne Diktatur) is not justany despotism because it proposes that it is legitimized according to its goal, thatis to say, in search of the establishment of a new constitutional order, with a newsubject (Träger) of constituent power, through the suspension and elimination of theexisting norms. In Schmitt’s theological-political approach, this higher instance is notorganized. Moreover, it cannot be reduced to an organization (an organ of the state),so its commission becomes at the same time its competence. To my mind, this is themain idea behind a passage that Rubinelli later quotes from Die Diktatur: “From theinfinite, incomprehensible abyss of the force of the pouvoir constituant, new forms- 2 -emerge incessantly, which it can destroy at any time and in which its power is neverlimited for good. It can will arbitrarily” (p. 116). Schmitt here does not propose a fullyvoluntaristic – in the sense of despotic – character of the constituent power. Rather,Schmitt offers an “anti-positivist argument” in which constituent power appeals to anunorganized authority.A Missing Link in Rubinelli’s History of ConstituentPower: Carl Schmitt and the European Public LawMy other comment concerns the continuity between Chapters 2 and 3, in whichRubinelli establishes a dialogue between French and German constitutionalism.In Chapter 2, she explains that the language of constituent power, after Sieyès,disappears from French constitutional politics. The French constitutions of the 18th-century integrated the conception of the nation’s sovereignty, which is attenuatedin the constitution of 1795. What Rubinelli does not mention, however, is thatthe French constitution of 1848 includes a constituent assembly to reform theconstitution in whole or in part. Here, constituent power reappears, although withoutthe language of sovereignty. In other words, in the 19th-century, constituent powerchanged into a constitutional organ of the French Republic. Rubinelli’s book,however, does not consider if constituent power could also be exercised througha non-sovereign constituent assembly. If we accept this possibility, we can definetwo historical manifestations of constituent power in France: a sovereign constituentassembly (1789) and a non-sovereign constituent assembly (1848). When it comesto the intellectual history transition from the 19th to 20th centuries, Rubinelli seemsto invite us to think that there is a history of a misinterpretation of constituent powerbetween the 19th-century French lawyers (such as Laboulaye and Berriat-Saint-Prix) and Schmitt’s reading in Weimar. As I see it, this is not the most plausibleinterpretation of the history of constituent power.In particular, I think Rubinelli’s book overlooks how Schmitt’s language of constituentpower is influenced by a dialogue between German state theory (Staatslehre) andFrench public law (Droit Public). Rubinelli recounts how before the Weimar Republic,jurists such as Robert Redslob and Egon Zweig (who are almost forgotten in thecurrent literature) analyzed the history of constituent power in their significant works.The author names this section “France in Germany” (p. 104) and explains that thework of Theodor Mommsen on the history of the Roman Republic played a key rolein the study of the idea of constituent power at the time. Moreover, Rubinelli arguesthat the method of Jellinek’s Allgemeine Staatslehre was fundamental becauseZweig’s book draws on this approach to explain the history of constituent power. Inturn, “Die Lehre vom Pouvoir Constituant became the reference point for thinkersinterested in using the idea of constituent power to make sense of popular powerin the Weimar state, including Carl Schmitt” (p. 106). I am not convinced by thishistory of constituent power as a connection “Zweig-Schmitt.” In my reading, Schmittdevelops his notion of constituent power in Die Diktatur and Verfassungslehre basedon a language derived from the theory of state organs and their functions. Thisperspective comes not from Mommsen and Zweig but the 19th-century Germanstate theory (Gerber, Laband, and Jellinek) and the public law of the Third French- 3 -Republic (Esmein, Duguit, and Hauriou). In other words, Rubinelli’s history ofconstituent power does not reflect that the European public law established alanguage of constituent power through the theory of state organs in France andGermany in the early 20th-century.Early 20th-century European public law understood constituent power as theconstitution-making function of a state organ in the French constitutions of 1848 andthe constitutional laws of 1875. That at least was the theoretical approach preferredby French followers of Jellinek like Carré de Malberg. The cases of Redslob andZweig that Rubinelli describes are not different from this perspective. In contrast,Rubinelli takes the discussion about Schmitt in Weimar to the realm of the fusion ofthe concepts of sovereignty and constituent power, so Schmitt ends up disconnectedfrom his European context of constitutional law. In the transition from the 19th to 20thcenturies, constituent power in European public law was not considered sovereignbut a particular function of constitution-making for the organization of state powers.Thus, we should not assume that Schmitt recovers the language of the sovereigntyof constituent power through the language of popular sovereignty of 18th-centuryFrance. Rather, in Schmitt, there is a sui generis confluence of two movementsthat are merged in his understanding of constituent power: French public law (DroitPublic) and German state theory (Staatslehre). Specifically, the Staatslehre idea ofthe sovereign state was adopted by Schmitt into the theory of the constituent powerof the Third French Republic. Against this background, I disagree with Rubinelli’sreading that Schmitt’s idea of a “sovereign constituent power” comes from thelanguage of 18th-century political theory. The history of constituent power fromEuropean public law perspective becomes complex because it involves developinga language in Schmitt that goes beyond Sieyès and the French lawyers of the 19th-century.- 4 -

Carl Schmitt, the Arbitrary Character of Constituent Power, and the Tradition of European Public Law

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Carl Schmitt, the Arbitrary Character of Constituent Power, and the Tradition of European Public Law

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