Thursday, 30 November 2000

From "Political Theology"

By Carl Schmitt.

The connection of actual power with the legally highest power is the fundamental problem of the concept of sovereignty. All the difficulties reside here.

[...]

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 a disjunction: sociology/jurisprudence, and with a simplistic either/or obtaining something purely sociological and something purely juristic.

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Using this procedure [...] the state must be purely juristic, something normatively valid. It is not just any reality or any imagined entity alongside and outside the legal order. The state is nothing else than the legal order itself, which is conceived as a unity, to be sure [...] The state is thus neither the creator nor the source of the legal order [...] all perceptions to the contrary are personifications and hypostasizations, duplications of the uniform and identical legal order in different subjects. The state, meaning the legal order, is a system of ascriptions to a last point of ascription and to a last basic norm. The hierarchical order that is legally valid in the state rests on the premise that authorizations and competences emanate from the uniform central point to the lowest point [...] The state is the terminal point of ascription, the point at which the ascriptions, which constitute the essence of juristic consideration, "can stop." This "point" is simultaneously an "order that cannot be further derived." [...] The basis for the validity of a norm can only be a norm;

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The dualism of the methods of sociology and jurisprudence ends in a monistic metaphysics. But the unity of the legal order, meaning the state, remains "purged" of everything sociological in the framework of the juristic. Is this juristic unity of the same kind as the worldwide unity of the whole system? How can it be possible to trace a host of positive attributes to a unity with the same point of ascription when what is meant is not the unity of a system of natural law or of a general theory of the law but the unity of a positive-valid order?

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On what does the intellectual necessity and objectivity of the various ascriptions with the various points of ascription rest if it does not rest on a positive determination, on a command? As if speaking time and again of uninterrupted unity and order would make them the most obvious things in the world; as if a fixed harmony existed between the result of free juristic knowledge and the complex that only in political reality constitutes a unity, what is discussed is a gradation of higher and lower orders supposedly found in everything that is attached to jurisprudence in the form of positive regulations.

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