Carl Schmitt and international politics

The state of exception happens when the political community is in danger. What did Carl Schmitt say about this in his work? Here we’re going to see it.

Introduction

Today, I want to speak to you about the state of exception in the work of Carl Schmitt. This author addressed many different issues with serious political implications, and one of them is this. Its importance is greater than we could think because he made the Nazi regime’s establishment possible in legal terms.

The following discussion is going to focus on the concept of the state of exception. Later, I’ll explain how Schmitt devised the legal procedure to make it the new normal in Germany in the 1930s.

The state of exception in Carl Schmitt’s thought

What’s the state of exception? It’s something similar to the state of emergency. Still, in this case, we’re before a concept in the legal theory of Carl Schmitt. In contrast with the state of emergency, the state of exception is the sovereign’s ability to transcend the rule of law in the name of the public good. It responds to the need to face successfully a critical situation in which the political community is in danger. In these cases, the government can take decisive action by resorting to dictatorial procedures.

The state of exception frees the executive from any legal restraints to its power that would usually apply. The term exceptional is of paramount importance here because it refers to the way Schmitt understands sovereignty. I spoke about this in a previous episode. If you want further information check that video. In Schmitt’s view, the exception rests on the capacity to initiate the state of exception. This extraordinary situation suspends right, that is, the legal order that prevails in a normal situation.

The state of exception belongs to the core-concept of sovereignty in Schmitt’s thought. In this regard, he stressed the importance of the supreme authority to make the fundamental political decision, that is, the distinction of the enemy. In the state of the exception, the authority exercises that sovereign power to decide who the enemy is. In this way, it resorts to outright violence without the usual legal limitations. This means that bureaucracy and legal procedures cease to hinder the sovereign’s action, which exercises its power directly. Sovereignty is, therefore, the power to proclaim the exception in which right doesn’t apply. Schmitt himself defined sovereignty as follows: “Sovereign is he who decides on the exception.” By exception, Schmitt means the precise moment for stepping outside the rule of law in the public interest.

The justification of the state of exception is an unprecedented situation that puts the political community in danger and threats its existence. It requires special measures beyond the legal order to ensure the public good, especially the survival of the polity. That leads us to the dictatorship’s role in the constitutional law, something that Schmitt himself studied in depth. However, that will be the topic of a forthcoming episode, so don’t forget to subscribe now, and you won’t miss anything.

Hence, a crisis represents that extraordinary moment in which the government increases its power by suspending, diminishing, or rejecting constitutional rights. In these cases, the state of exception invests one person or a governmental body with the power and voice of authority over others. That power extends well beyond where the law had existed in the past. As a result, the political power acquired through the state of exception places one government, or one branch of the government, as all-powerful by operating outside the laws. In this situation, the authority’s violence works without any real reference and legal restrictions.

In this way, we see how the principle of efficiency is a guideline in a crisis that endangers the existence of the political community. In order to ensure the survival of the polity, the supreme authority, which holds sovereignty, resorts to the state of exception because ordinary legal means are insufficient, and consequently unable to match the challenge the polity has to face. In this situation, the authority resorts to all means available to preserve the community, and that involves the adoption of extraordinary measures by silencing any opposition and dissent. The situation makes the exception possible, and ensuring safety becomes the best reason to establish the state of exception.

The state of exception in Germany: the Nazi experience

It seems the state of exception is like establishing a despotic juggernaut that can do whatever he wants. Indeed, it entails the suspension of the constitutional order and individual rights and liberties. However, what did it work in Germany in the 1930s? It’s said that Schmitt was the architect of the legal transition that made the Nazi regime possible. Let’s see how.

I have to stress that the state of exception is an extraordinary situation that the constitutional order makes it possible. That means the constitution has that provision and facilitates the establishment of this state. That’s the case of the Weimar Republic in the 1930s. Under certain circumstances, article 48 of the Weimar Constitution allowed the President to take emergency measures without the parliament’s prior consent. This power included the promulgation of emergency decrees. Yet, this article didn’t define with precision what kind of emergency would justify its use. Besides, it didn’t expressly specify what power granted to the President. The article enabled the President with legislative power as implied power.

This constitutional provision was the legal base for the legal reasoning of Carl Schmitt. He theorized the state of exception to facilitate the permanent suspension of the constitutional order during the Third Reich. The events that led to the use of Article 48 were the Reichstag fire. This incident was the political pretext to issue a special decree for the protection of people and the State. In this way, the government had the authority to curtail constitutional rights, including habeas corpus, free speech, freedom of the press, and assembly and privacy rights in communications. Furthermore, those constitutional restrictions on searches and confiscation of property were suspended.

Nazis never needed to abolish the Weimar Constitution. Rather than that, they suspended it with the Reichstag Fire Decree and renewed it every four years. That entailed a continual state of exception. That allowed the Nazis to establish their totalitarian regime. As Giorgio Agamben claimed, “The entire Third Reich can be considered a state of exception that lasted twelve years. In this sense, modern totalitarianism can be defined as the establishment, by means of the state of exception, of a legal civil war that allows for the physical elimination not only of political adversaries but of entire categories of citizens who for some reason cannot be integrated into the political system.”

The mentioned decree was one of the first steps the Nazis took to establish their totalitarian system. Thanks to it, the Nazis held key government posts. Moreover, they didn’t have legal restrictions, such as the constitutional protections on civil liberties, because they were suspended. That made it possible the prosecution of their political opposition, and the repression of any dissent. Indeed, the crackdown was legal thanks to the framework of the Weimar Constitution. The result of this dynamic was the pass of the Enabling Act that revoked the Reichstag authority and placed its authority on Cabinet’s hands. The effect was giving Hitler extraordinary powers to implement his dictatorial regime. Thanks to Article 48, this totalitarian system had the stamp of legality. From then on, the government decrees had their base on the Reichstag Fire Decree and Article 48, which allowed Hitler to rule under what amounted to martial law. That was a significant reason why Hitler never formally repealed the Weimar Constitution, although it became a dead letter.

Conclusion

As we’ve seen, the state of exception is the result of an extraordinary situation that justifies in political terms the expansion of the government powers. It’s a constitutional provision that many countries have to preserve the existence of the political community. However, it can be the backdoor for the establishment of a totalitarian regime, as it happened in Germany.

Question of the day

Question of the day! Would you like to watch another video on extraordinary political situations like the state of exception? Post your opinion in the comments section below, and I’ll check it out.

Bibliography used:

Schmitt, Carl, The Concept of the Political

Vagts, Detlev, “Carl Schmitt’s Ultimate Emergency: The Night of the Long Knives” in The Germanic Review: Literature, Culture, Theory 87(2), 2012, pp. 203-209

Agamben, Giorgio, State of Exception

Agamben, Giorgio, Homo Sacer: Sovereign Power and Bare Life

Disclosure: Some of these links are affiliate links where I’ll earn a small commission if you make a purchase at no additional cost to you. As an Amazon Associate I earn from qualifying purchases.