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ICON (2013), Vol. 11 No. 3, 585610 doi:10.1093/icon/mot020
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Political constitutionalism versuspolitical constitutional theory:Law, power, and politics
Panu Minkkinen*
This essay juxtaposes political constitutionalism with a political constitutional theory
that is mainly based on the work of Carl Schmitt. It claims that the former understands
politics as consensual government and correspondingly the constitution as a set of prin-
ciples and institutions that allows for the management of arising conflicts. Political
constitutional theory, on the other hand, acknowledges the ever-present potentiality of
conflicts as essential to the political nature of the constitution. The potential conflicts
occasionally actualize as exceptional constitutional violations that, at the same time,
reaffirm the sovereign constituent power that accounts for the radical democratic founda-tion of all constituted political and legal institutions. The position of occasional consti-
tutional violations as expressions of constituent power is further illustrated in relation
to the separation of powers as actualized conflicts between the judiciary and the elected
branches. Exceptional constitutional violations that transgress the constituted limits of
the respective branches of government are an indication of the political nature of the con-
stitution, including the separation of powers, and not as an anomaly that constitutional
theory cannot explain.
1. Introduction
For over a decade now, constitutional debate has persistently revolved around prem-
ises that, in one form or another, focus on the role of law in democracy. Cutting corners
and simplifying the issues, the debate can, perhaps, be best depicted as the challenge
of political constitutionalism to an allegedly more traditional legal constitutionalism.
Although the origins of political constitutionalism can be traced to earlier times,1
* University of Helsinki, Finland. Thanks to all who have commented on the essay in its various stages,
especially Paul OConnell for his camaraderie and support, and Aileen Kavanagh whose book provided
an important forum for revising the ideas. All inconsistencies and mistakes are, of course, of my own
making. Email: [email protected] See, e.g., J.A.G. Griffith, The Political Constitution, 42 MOD. L. REV.1 (1979). Further on Griffith, seeGraham
Gee, The Political Constitutionalism of JAG Griffith, 28 LEGALSTUD.20 (2007).
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586 ICON11 (2013), 585610
Richard Bellamys passionate introduction to his more or less recent book depicts this
latest challenge well:
The legal constitutionalists attempts to constrain democracy undercut the political constitu-
tionalism of democracy itself, jeopardizing the legitimacy and efficacy of law and the courtsalong the way. For a pure legal constitutionalism, that sees itself as superior to and independent
of democracy, rests on questionable normative and empirical assumptionsboth about itself
and the democratic processes it seeks to frame and partially supplant. It overlooks the true basis
of constitutional government in the democratic political constitutionalism it denigrates and
unwittingly undermines.2
But what is so particularly and exclusively political about the political constitu-
tionalism represented by Bellamy and others? The decisive criterion can hardly be the
commitment to democracy because defenders of legal constitutionalism often claim to
endorse the same democratic principles.3
This essay will, in fact, argue that it is specif-ically the more or less universalistic commitment to liberal democracy that prevents
political constitutionalismas well as its legal counterpartfrom becoming political
in any strong sense of the word. The normative universalism that underpins the work
of most political constitutionalists sets a nucleus of democratic principles and institu-
tions beyond the reach of political decision-making. The validity of these principles
and institutions is claimed to be normative in a strong way, and political constitution-
alism further reinforces their normative validity through its own commitment to the
values of liberal democracy. As a consequence, constitutionalismonce again either
political or legalruns the risk of being reduced to the management of political dis-agreement rather than providing the fora through which disagreement is enabled and
put into practice as political action.
This essay will, then, attempt to outline a political constitutional theory with spe-
cific reference to the work of Carl Schmitt in which politics is understood as a norma-
tively unrestrained possibility of disagreement and dissent. Although Schmitt never
explicitly created such a theory, his general position in relation to law, power and poli-
tics clearly points in that direction. But political constitutional theory as it is under-
stood here does not and cannot participate in the Schmitt orthodoxy that has resulted
from the prevalent emphasis on historical perspectives. Schmitt must be uprootedfrom his Weimarian origins and adapted to the contemporary world. Neither does
political constitutional theory cynically deny the value of the democratic principles
and institutions that are possibly enshrined in liberal constitutions as Schmitts critics
may claim. But it does understand their validity as factual and accordingly dependent
on the political self-determination that a nation exercises. In other words, they could
always be otherwise, and the theory must also be able to account for the exceptional
2 RICHARDBELLAMY, POLITICALCONSTITUTIONALISM. A REPUBLICANDEFENCEOFTHECONSTITUTIONALITYOFDEMOCRACY23(2007).
3 For an interesting response to Bellamy along these lines, see Alec Walen, Judicial Review in Review:
A Four-Part Defense of Legal Constitutionalism, 7 INTLJ. CONST. L.329 (2009). For another debate acrosssimilar front lines, seeADAMTOMKINS, OURREPUBLICANCONSTITUTION132 (2005), and Paul Craig, PoliticalConstitutionalism and Judicial Review, in EFFECTIVE JUDICIAL REVIEW. A CORNERSTONE OF GOOD GOVERNANCE 19(Christopher Forsyth et al. eds., 2010).
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Political constitutionalism versus political constitutional theory 587
measures adopted by one institution or another if and when existing constitutional
principles and institutions are threatened.
By way of introduction, Section 2 delineates how Schmitt has been receivedor
not, as the case may bein legal and political theory in general and political con-stitutionalism in particular. Both ideological and epistemological obstacles to recep-
tion are identified and, hopefully, overcome. Section 3 deals with the constituent
element in Schmitts constitutional theory, namely constitution-giving power, which
is responsible for both the constitution as the original sovereign expression of politi-
cal self-determination and the exceptional breaches and violations made to it. Unlike
political constitutionalism, political constitutional theory does not regard occasional
constitutional violations as anomalies but, rather, as exceptional factual responses to
threats that potentially endanger the political existence that the political unity has
constituted through its political and legal institutions. Understanding constitutionalviolations through Schmitts notions of constituent constitution-giving power and
sovereign exceptionality also suggests a particular notion of the political, which is
dealt with in Section 4. Using Schmitts distinction between friend and enemy, Section
4 develops a notion of the constitution as a political charter or, in other terms, of the
political constitution. As the outcome of constitution-giving power and constituent
political self-determination, constituted institutions imply the will and the need for
continuity and stability in the face of potential threats.4Even in times of stability, con-
stituted institutions always imply scenarios that may endanger a chosen political exis-
tence. If political constitutionalism uses the epithet political primarily to designateits normative commitment to liberal democracy and its institutions, then political con-
stitutional theory claims that a constitution is not political because of a commitment
to any particular choice of politics but, rather, because commitment itself implies an
ever-present and necessary tension between what has been constituted (e.g., liberal
democracy) and the enemies (e.g., undemocratic forces) that potentially threaten it.
After outlining a Schmittian political constitutional theory, Section 5 will apply
the created framework to contextualize two interrelated constitutional phenomena,
both relating to the separation of powers, that have been prevalent in recent debates:
the tensions between the judiciary and the elected branches, and the strong positionof the executive branch in relation to the legislature. As illustrative examples, both
the increased political influence of the courts and the demise of parliamentary power
in favor of a strong executive branch can, I would claim, be theoretically explained
through political constitutional theory. And the merits of the theory should be mea-
sured on its explanatory potential rather than the political antipathies that Schmitts
person undoubtedly creates.
4 This political dimension is already present in Cicero who is often credited as the first to use the word
constitution. Cicero acknowledged the Roman public institutions as second to none, but even they were
under the constant threat of decay from both internal and external danger. And so Cicero sought to con-
stitute (constituere) the relations between the public institutions in such a way that it would both ensure a
domain free from the corrupt use of power and provide continuity and stability to the polity that was thus
established. See, e.g., CICERO, THEREPUBLICANDTHELAWS3032 (Niall Rudd trans., 1998).
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588 ICON11 (2013), 585610
2. Schmitt revisited
Talking about Schmitt nearly three decades after his death is still regarded by many
as controversial. More often than not, critical views are informed by Schmitts politi-
cal escapades as the Crown Jurist of the Third Reich5 as in, for example, David
Dyzenhauss influential writings,6 and a demonization has been further fueled in
the public imagination by Schmitts later intellectual affiliations with Soviet spy
Alexandre Kojve,7the neoconservative intellectual figurehead Leo Strauss,8and oth-
ers.9At the other end of the political spectrum, there has been a revived interest in
Schmitts work inspired by leftist continental political philosophers such as Giorgio
Agamben,10Massimo Cacciari,11 and Chantal Mouffe,12 often depicted by Schmitts
critics as apologists. And in between these entrenched camps, political philosophers
such as George D. Schwab and a number of other scholars working around the small
publishing house Telos Press and its affiliated journal13have been engaged in what
5 This weary epithet is usually accredited to the Catholic and anti-communist political theorist Waldemar
Gurian.6 See, e.g., DAVIDDYZENHAUS, LEGALITYANDLEGITIMACY. CARLSCHMITT, HANSKELSENANDHERMANNHELLERINWEIMAR
(1997). An acute a reader of Schmitt as Dyzenhaus may be, he also betrays his resentment for Schmitts
personal politics by trying to set him up against the social democrat Hermann Heller who Dyzenhaus is
barely short of idolizing. For a critique of the factual merits of Dyzenhauss advocacy of Heller, seeJoseph
W. Bendersky, Carl Schmitt and Hermann Heller, 113 TELOS157 (1998).7 See Alexandre Kojve & Carl Schmitt, Alexandre KojveCarl Schmitt Correspondence and Alexandre
Kojve, Colonialism from a European Perspective, 29 INTERPRETATION91 (2001). Kojves own Hegelianphilosophy of law shares many affinities with Schmitt. SeeALEXANDREKOJVE, OUTLINEOFAPHENOMENOLOGYOFRIGHT(Bryan-Paul Frost & Robert Howse trans., 2000). The affinities between Schmitt and KojvesHegelian master are also noted in the introduction of ALEXANDRE KOJVE, LA NOTION DE LAUTORIT[TheConcept of Authority] (2004). See also Alexandre Kojve, Tyranny and Wisdom, inLEOSTRAUSS&ALEXANDREKOJVE, ONTYRANNY135(Victor Gourevitch & Michael S. Roth eds, 2000). Kojves KGB affi li-ations were reported in an article in Le Mondein 1999 (seePascal Ceaux, La DST avait identifi plusieurs
agents du KGB parmi lesquels le philosophe Alexandre Kojve[The Directorate of Territorial Surveillance
identifies several KGB agents, philosopher Alexandre Kojve among them], LEMONDE, Sept. 16, 1999,at 14).
8 SeeHEINRICHMEIER,CARLSCHMITT& LEOSTRAUSS. THEHIDDENDIALOGUE(J. Harvey Lomax trans., 1995). Theinfluence of Strauss, Schmitt, Kojve, and others on the development of the neoconservative agenda is
discussed in, e.g., SHADIAB. DRURY, THEPOLITICALIDEASOFLEOSTRAUSS(2005).9 Schmitts personal politics are certainly easy prey for sensationalist accounts of extremist intellectual
positions. See, e.g., MARK LILLA, THE RECKLESS MIND. INTELLECTUALS IN POLITICS4776 (2001). On Schmittsmore hidden influence on twentieth-century political thinking, seeWILLIAME. SCHEUERMAN, CARLSCHMITT.THEENDOFLAW(1999).
10 See, e.g., GIORGIO AGAMBEN, HOMO SACER. SOVEREIGN POWER AND BARE LIFE (Daniel Heller-Roazen trans.,1998) and GIORGIOAGAMBEN, STATEOFEXCEPTION(Kevin Attell trans., 2005).
11 See, e.g., Massimo Cacciari, Law and Justice: On the Theological and Mystical Dimensions of the Modern
Political, inTHEUNPOLITICAL. ONTHERADICALCRITIQUEOFPOLITICALREASON173 (Massimo Verdicchio trans.,2009) and especially MASSIMOCACCIARI, ICONEDELLALEGGE(1985).
12 See, e.g., CHANTALMOUFFE, THEDEMOCRATICPARADOX3659 (2000) and CHANTALMOUFFE, ONTHEPOLITICAL834(2005).
13 See, e.g., GEORGE SCHWAB, THE CHALLENGE OF THE EXCEPTION. AN INTRODUCTION TO THE POLITICAL IDEAS OF CARLSCHMITTBETWEEN1921 AND1936 (1989), and JOSEPHW. BENDERSKY, CARLSCHMITT, THEORIST FOR THEREICH(1983).
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Political constitutionalism versus political constitutional theory 589
one might call Schmitt scholarship proper. What, however, unites the different posi-
tions is that they are all centered on a theoretical debate on political liberalism.14
Entrenched positions have, however, also made it difficult to engage with Schmitts
work in a way that would allow for more dispassionate analyses of what his work mighthave to offer legal and political theory in general and constitutional theory in particu-
lar. This essay will attempt to situate arguments from some of Schmitts better known
but shorter texts (primarily Political Theology15and The Concept of the Political16) within
the overall framework of his Constitutional Theory,17and to assess the significance of
the emerging political constitutional theory for the contemporary British debate on
political constitutionalism.18 Due to the fairly recent publication of translations of
what could with good reason be regarded as Schmitts major monograph worksthe
English translation of Constitutional Theorywas only published in 2008 and The Nomos
of the Earth19
a few years earlierAnglophone analyses, notwithstanding the work ofpolyglot scholars such as Dyzenhaus, Schwab, or Mouffe, have all too often focused
on the shorter pamphlets translated earlier without situating the arguments into the
larger framework of Schmitts constitutional theory.20What is gained in creative depar-
tures from more or less isolated arguments is, perhaps, lost in the possibility of a more
coherent theory against which competing ones could be contrasted.
Part of the reason why Schmitts work is not easily integrated into the British debate
on constitutionalism is the difficulty of transplanting his continental tradition into the
local theoretical paradigms. On the face of it, one could, perhaps, assume that his con-
stitutional theory is political in a similar way as the work of contemporary politicalconstitutionalists in Britain and elsewhere but that it only promotes non-republican
and anti-liberal principles. Schmitt is, however, not a constitutionalist, if by con-
stitutionalism we understand the commitment to regulate potentially arbitrary state
14 For a recent analysis on the ebb and flow of the Schmitt controversy, seeBenno Teschke, Decisions and
Indecisions: Political and Intellectual Receptions of Carl Schmitt, 67 NEW LEFT REV.61 (2011). For a gen-eral presentation of Schmitts critique of liberal constitutionalism (especially the rule of law), see Iain
Hampsher-Monk & Keith Zimmerman, Liberal Constitutionalism and Schmitts Critique, 28 HISTORYPOLIT.THOUGHT678 (2007).
15 CARLSCHMITT, POLITICALTHEOLOGY. FOURCHAPTERSONTHECONCEPTOFSOVEREIGNTY(George Schwab trans., 2005).16 CARLSCHMITT, THECONCEPTOFTHEPOLITICAL(George Schwab trans., 2007).17 CARLSCHMITT, CONSTITUTIONALTHEORY(Jeffrey Seitzer trans., 2008).18 Schmitt does not specifically talk about a political constitutional theory but notes that his constitu-
tional theory is based on a political concept of law that results from the political form of existence of
the state and out of the concrete manner of the formation of the organization of rule. Id., at 187. The
introduction of an edited collection referring to the relationship between law and politics asks: Why Carl
Schmitt? If the subsequent chapters are anything to go by, interest in Schmitts work is mostly condi-
tioned by an historical context of the Weimar period rather than the possibility of a more general political
concept of law. SeeLAWASPOLITICS. CARLSCHMITTSCRITIQUEOFLIBERALISM(David Dyzenhaus ed., 1998).19 CARLSCHMITT, THENOMOSOFTHEEARTH INTHEINTERNATIONALLAWOFTHEJUSPUBLICUMEUROPAEUM(G. L. Ulmen
trans., 2003).20 An exemplary and interesting departure of this kind is WILLIAMRASCH, SOVEREIGNTYANDITSDISCONTENTS. ON
THEPRIMACYOFCONFLICTANDTHESTRUCTUREOFTHEPOLITICAL(2004). As a Germanist, Rasch would not be lim-ited by linguistic constraints, but his reading of Schmitt is largely based on the shorter texts rather than
the major monographs.
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590 ICON11 (2013), 585610
powers through principles such as the rule of law. The equivalent of constitutional-
ism understood in this way would for Schmitt be the Rechtsstaatprinciple, that is, the
sovereign state the powers of which are limited by a self-imposed positive constitution,
something that Austin referred to as a flat contradiction in terms.21
Schmitt would have no theoretical grounds to object to the rule of law principle
in itself if such a principle was, indeed, constituted through the political self-deter-
mination of a nation. Schmitt may well be a critic of parliamentarism, but he is also
a radical democrat.22What Schmitt is opposed to is the universalizing tendency of
political liberalism, both right and left, to remove principles such as the rule of law
from the reach of sovereign power and political self-determination.23 For Schmitt,
the nation is the ultimate factual source of a constituent power that cannot logically
be constrained by what it may have constituted. A nation is, then, not the elector-
ate confined by the constitution to its role in representative democracy or a politicalcommunity constrained by the terms of its covenant. But neither is it a constitution-
ally unframed source of crude popular power. A nation is a democratic institution
that requires nothing more than a political awareness and the will to exercise fac-
tual power in accordance with that awareness in order to reconstitute itself otherwise
should it so desire.24Disregarding his own personal politics, it is this strain of radical
democracy that aligns Schmitt theoretically with both the political left and the politi-
cal right but makes him difficult to integrate into the tradition of center-left liberalism
that political constitutionalism represents.
A second problem arises if political constitutionalism is viewed as a response or analternative to legal constitutionalism. To put it crudely for the sake of argument and
disregarding all the nuances of the debate, both political and legal constitutionalists
broadly agree on a nexus of core principles. What they disagree about is how these
principles can be best put into effect with political constitutionalists often arguing that
legal mechanisms such as judicial review are at best insufficient.25But when Schmitt
21 JOHNAUSTIN, THEPROVINCE OF JURISPRUDENCE DETERMINED212 (Wilfrid E. Rumble ed., 1995). In continentalconstitutional theory, the contradiction of a self-delimiting sovereign state can be traced at least as far
back as Jherings notion of the bilateral coerciveness of law as self-subordination on the part of the State
authority to the laws issued by it. RUDOLFVONJHERING, LAWASAMEANSTOANEND267 (Isaac Husik trans.,1913).
22 SeeCARLSCHMITT, THECRISISOFPARLIAMENTARYDEMOCRACY2232 (Ellen Kennedy trans., 1988). For a theo-retical analysis of Schmitts notion of democracy, seeANDREASKALYVAS, DEMOCRACYANDTHEPOLITICSOFTHEEXTRAORDINARY. MAXWEBER, CARLSCHMITT, ANDHANNAHARENDT79186 (2008).
23 This universalizing tendency is one of the key theoretical premises that critical constitutional theorists
such as Costas Douzinas argue against. See, e.g., COSTASDOUZINAS, HUMANRIGHTSANDEMPIRE. THEPOLITICALPHILOSOPHYOFCOSMOPOLITANISM101110 (2007).
24 If we bracket out its undeniably nationalistic and racist Herderian overtones, the German word Volkcap-
tures well the conflation of the national and the popular: constituted by both law and culture, and yet
radically free to determine its destiny. On the populistic strain in Paines predominantly legal constitu-
tionalism, seeRobin West, Tom Paines Constitution, 89 VA. L. REV.1413 (2003).25 The debate between political and legal constitutionalists is often unfortunately entrenched leading the
former, for example, to underestimate the role of courts in securing the functioning of the very same
political institutions that political constitutionalists swear by, and the latter to overestimate the indepen-
dence of the courts as a disinterested third party.
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Political constitutionalism versus political constitutional theory 591
juxtaposes his political constitutional theory against what he calls normativist theo-
ries, he is not talking about whether the constitution aims at holding political actors
to account through either political processes or legal institutions.26His main concern
is the consistency of the theory itself in explaining the constitution. Schmitts nem-esis, in perhaps more ways than one, is Kelsen who, at least in his earlier neo-Kantian
work, can be considered as the archetypal normativist.27For Kelsen, the constitution
in its material and positive sense is a collection of norms that regulates the creation of
general legal norms. The constitution can be written and hence formal, but it can also
consist either fully or partially of unwritten norms based on custom. In its function
of regulating the creation of legal norms, the constitution is the highest level of the
hierarchy of positive legal norms in the Stufenbau.28Schmitt will have no argument
with this. The constitution can both regulate formal processes through which norms
are created and include the political principles that norms must comply with in orderto be considered valid.
Strictly speaking, Kelsen has very little to say about what the constitution is
because his focus is epistemological. The aim of Kelsens pure theory is to secure the
scientific status of legal knowledge, so instead of telling us what the constitution is, he
has to work the other way around: How should we conceptualize the constitution so
that the pure theory describing it can be regarded as scientific? Kelsen then replies that
the theory can only be scientific if the constitution is conceptualized as positive legal
norms, and this is why the pure theory is a normative science. The theory requires
that even the substantive political principles that the constitution may include mustbe treated as positive legal norms, and once they have been embedded into the consti-
tution through either enactment or established custom, there is no reason why this
could not be done. Kelsens normativism is descriptive rather than prescriptive. Within
the theory itself, the political principles that have now been reconceptualized as posi-
tive constitutional norms can have no prescriptive value. Kelsens Kant is the Kant
of the first Critique, not of the second Critique, and his neo-Kantian undercurrent
means that the pure theory accounts for the constitution with reference to theoretical
reason, not to practical reason.29
26 So when Schmitt talks about normativist theories, he is not referring to the type of normative constitu-
tional theory as represented in the work of, for example, Trevor Allan. SeeT.R.S. ALLAN, CONSTITUTIONALJUSTICE. A LIBERALTHEORYOFTHERULEOFLAW(2001).
27 On the normativity of legal positivism and decisionism, seeCARLSCHMITT, ONTHETHREETYPESOFJURISTICTHOUGHT6371 (Joseph W. Bendersky trans., 2004). On Kelsens neo-Kantian affiliations, seeStanleyL. Paulson, The Neo-Kantian Dimension of Kelsens Pure Theory of Law, 12 OXFORD J. LEGAL STUD. 311(1992). For a more detailed discussion on Schmitt and Kelsens normativity, see Sylvie Delacroix,
Schmitts Critique of Kelsenian Normativism, 18 RATIOJURIS30 (2005). See alsoCesare Pinelli, The Kelsen/Schmitt Controversy and the Evolving Relations between Constitutional and International Law, 23 RATIOJURIS493 (2010).
28 HANSKELSEN, PURETHEORYOFLAW221224 (Max Knight trans., 1967).29 I have elsewhere argued in more detail for such an interpretation of Kelsens epistemological emphasis.
SeePANUMINKKINEN, THINKINGWITHOUTDESIRE. A FIRSTPHILOSOPHYOFLAW3538 (1999), and PANUMINKKINEN,SOVEREIGNTY, KNOWLEDGE, LAW1326 (2009).
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Schmitts central disagreement with constitutional normativists like Kelsen and
Paul Laband30comes up at the next level of reasoning. In order to remain consistent
with his descriptive normativism, Kelsen must ground the constitution in the tran-
scendental-logical basic norm that the neo-Kantians, following Bentham, Vaihinger,and others, would have regarded as a fiction.31The fictive basic norm is transcendental
because it is external in relation to the constitution understood as positive law, and it
is logical because it is a necessary precondition for the normativity of the constitution
that the pure theory itself epistemologically requires. But Schmitt is just as critical
about epistemological fictions as Bentham is about legal fictions. He calls the fictions
that normativist constitutional theories must construct in order to remain epistemo-
logically consistent apocryphal32because their aim is to exclude factual phenomena
that cannot be accounted for with a normativist explanation. The fictive foundation of
the constitution is postulated only so that the normativist theory itself would remainintact. For Schmitt, the only foundation that can theoretically explain the existence
of the constitution is the factual expression of a political will, that is, a decision. The
constitution is a political charter that can well include legal norms and be analyzed
accordingly. But in order to explain the foundation of the constitution or, indeed, as we
will see, any violations to it, the gap between the normative and the factual has to be
bridged. It is at this level that Schmitts political constitutional theory departs from the
normativist tradition even though, as a constitutional lawyer, his commentaries on
constitutional norms themselves often resemble those of his normativist and positivist
counterparts.In other words, Schmitts political constitutional theory does not lend itself easily
to a discussion of what the Anglophone tradition understands as political constitu-
tionalism. The theory itself cannot claim to promote any substantive political prin-
ciples, be they republican or anti-liberal, even if Schmitts personal politics suggest
otherwise. It can only explain the existence of the constitution as a political charter by
breaking away from the closed normativist lattice of positivism and the universalizing
tendencies of political liberalism by grounding the constitution in a factual decision.
And so it is unlikely that a Schmittian perspective would be able to contribute much to
a debate on political constitutionalism if that debate is conducted on the latters terms.
30 Apparently there are no English translations available from this central figure in German public law and
constitutional theory. On Kelsen, Laband, and Schmitt, seePETERC. CALDWELL, POPULARSOVEREIGNTYANDTHECRISISOFGERMANCONSTITUTIONALLAW. THETHEORYANDPRACTICEOFWEIMARCONSTITUTIONALISM40119 (1997).On Schmitt and his Weimarian contemporaries more generally, see CHRIS THORNHILL, GERMAN POLITICALPHILOSOPHY. THEMETAPHYSICSOFLAW261289 (2007).
31 For the neo-Kantians, a fiction is the as ifpostulate with which Kant explained practical reason: there can,
for example, be no knowledge about the immortality of the soul, but even in the absence of knowledge
one must assume as ifthe soul was immortal for otherwise morality would be meaningless. SeeIMMANUELKANT, CRITIQUEOFPRACTICALREASON167168 (Werner S. Pluhar trans., Hackett 2002). Kelsens fiction is,then, epistemological: we must assume as ifthe basic norm existed, for otherwise the pure theory would
be impossible. On law and neo-Kantian fictions, see JEROME FRANK, LAW AND THE MODERN MIND338350(2009). On law and fictions more generally, seeLONL. FULLER, LEGALFICTIONS(1967).
32 See, e.g., SCHMITT, supranote 17, at 154155.
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3. Constitution-giving power
Schmitts main contribution to constitutional theory, his Verfassungslehre, was first
published in 1928 six years after Political Theology which is much better known in
the English-speaking world mainly because of its notorious opening sentence identify-
ing sovereignty with a decision on the state of exception.33In the introduction to the
former, Schmitt criticizes the fictive constructions of the Rechtsstaatin traditional
constitutional theory and notes that trying to account for sovereignty through apoc-
ryphal acts distorts the way in which state authorities are understood to be sover-
eign.34 In a way, then, Schmitts constitutional theory stands or falls depending on
how convincing or persuasive his account of sovereignty is.
In Political Theology, Schmitt clarifies that his definition of exception has to be
understood as a borderline concept that only applies to the outermost sphere
excluding what one would regard as normal cases. So the state of exception is not to
be understood in the conventional way as, for example, emergency powers that are
regulated under the Civil Contingencies Act 2004. Schmitts notion of exception is
seemingly something more radically out of the ordinary, that is, something that can-
not be defined within the definitions of emergency provided in, for example, 1 and
19 of the Act or the corresponding emergency powers. But he insists that the state
of exception understood in this radical way is, nevertheless, a systematic and logical
element in the legal definition of sovereignty because it relates to a decision. A norm
cannot establish an absolute exception or provide the grounding for the decision thata true exception requires.35
So, while the exception so understood may evade general legal frameworks, it does
include a specific formal and legal element, namely the decision in its purity. 36In its
absolute form, the exception can only arise in relation to an orderly normality that is
both presupposed and regulated by norms. Normality is the norms homogeneous
medium and a central requirement of its validity. But only a sovereign decision
can effectively determine whether the normality and orderly state of affairs that is
33 SCHMITT, supra note 15, at 5. For a detailed account of Schmitts work during his early constitutionalperiod, seeSchwab, supranote 13.
34 SCHMITT, supranote 17, at 55. From a Schmittian point of view, Sedleys constitutional paradigm of bi-polar sovereignty would be such an apocryphal act. SeeStephen Sedley, Human Rights: A Twenty-First
Century Agenda, PUBLICL.386 (1995). Political constitutional theory would not deny the factual changesthat are taking place, but it would regard explaining them with the contradictory paradigm as a fictive
attempt to salvage the doctrine of Crown sovereignty. See alsoC.J.S. Knight, Bi-Polar Sovereignty Restated,
68CAMBRIDGEL.J.361 (2009).35 SCHMITT, supra note 15, at 56. For an excellent overview of different constitutional arrangements to
cater for emergencies, seeJohn Ferejohn & Pasquale Pasquino, The Law of the Exception: A Typology of
Emergency Powers, 2 INTLJ. CONST. L.210 (2004). On the constitutional ramifications of the ambiguity ofdefinitions of emergency in the Civil Contingencies Act 2004, seeCLIVEWALKER& JAMESBRODERICK, THECIVILCONTINGENCIESACT2004. RISK, RESILIENCE, ANDTHELAWINTHEUNITEDKINGDOM7779 (2006).
36 On Schmitts decisionism, see, e.g., Paul Hirst, Carl SchmittDecisionism and Politics, 17 ECON. & SOCY272(1988). From the mid-1930s onwards, Schmitts decisionist formalism gradually morphs into the third
type of legal thought: concrete order. But even his post-war texts on Ordnungsdenkenretain a radical
decisionist element, namely land-appropriation (Landnahme). SeeSCHMITT, supranote 19, at 8083.
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594 ICON11 (2013), 585610
regulated by norms factually exists. Sovereign power both creates and guarantees the
situation in its totality and exercises a monopoly over the final decision. In other words,
sovereign power not only decides on the exception but also on the non-exceptional
normality by deciding to refrain from the emergency powers that are at its disposal. Inthis way, the decision over the state of exception reveals the authority of the state in
the clearest possible way. The decision distinguishes itself from the legal norm, and the
factual authority invested in the decision demonstrates that it does not require a right
or a constitutional competence in order to create a legal state of affairs.37
But if the state of exception is, as Schmitt claims, a borderline concept, how can
we situate the sovereign power that it allegedly entails within constitutional theory?
Just as much as the constitutional framework informs Schmitts notion of sovereignty,
sovereignty also informs his understanding of the constitution. What is the relation-
ship between the two?Schmitts sources of inspiration are quite different to his German contemporaries,
and one of them is the French revolutionary theorist Emmanuel-Joseph Sieys. In his
celebrated 1789 pamphlet on the Third Estate, Sieys makes the well-known distinc-
tion between constituted and constituent power. Sieys argues that the constitutional
laws of a state all share a common source. They are regarded as fundamental because
the political and legal institutions that exist and act through them are unable to alter
these laws themselves. For Sieys, no type of delegated power can modify the con-
ditions of its own delegation.38In other words, even the constitutional competence
of the legislature is delegated power. But constitutions are not static, and the compe-tences of the various institutions may change over time. So Sieys must presuppose the
existence of a constituent power that, unlike the political and legal institutions that
can neither constitute themselves nor autonomously alter their own constitutional
designs, is not bound by laws, rules and forms. Constituent power is not conditioned
by any foregoing normative framework and is, therefore, capable of anything. And it
is the nation that should exercise this most important of powers, Sieys concludes.
Constituent power is, then, a radical expression of popular sovereignty.
Constituent power is the political presupposition behind the constitutional laws of a
state, and as such it is also the sovereign foundation of the state as a constituted politi-cal unity. Constituent power is omnipotent in so far as it cannot be subjected to formal
restrictions or regulations, and the nation that is the holder of this power is always
free to make alterations and exceptions to what it has constituted. Being in no way
constituted prior to the act of constitution, the nation is the ultimate source of power.
37 SCHMITT, supranote 15, at 13.38 Emmanuel-Joseph Sieys, What is the Third Estate?, inPOLITICALWRITINGS. INCLUDINGTHEDEBATEBETWEENSIEYS
ANDTOMPAINEIN1791, at 92, 136 (Michael Sonenscher trans., 2003). This is an inverted version of thebasic principle of sovereignty that was already put forward by Bodin who argued that sovereignty given
to a prince subject to obligations and conditions is properly not sovereignty or absolute power.JEANBODIN,ONSOVEREIGNTY8 (Julian H. Franklin trans., 1992). See alsoCARLSCHMITT, DIEDIKTATUR. VONDENANFNGENDESMODERNENSOUVERNITTSGEDANKES BISZUMPROLETARISCHENKLASSENKAMPF137140 (1994). A translation of thisessential book will be shortly available as CARLSCHMITT, DICTATORSHIP. FROMTHEORIGINOFTHEMODERNCONCEPTOFSOVEREIGNTYTOPROLETARIANCLASSSTRUGGLE(Michael Hoelzl trans., forthcoming Aug. 2013).
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The will of the nation is free and independent of all civil forms and only requires the
factual characteristics typical of a will as if it were in a state of nature: Every form is
good, and its will is always the supreme law.39
Schmitts constitutional theory is built around a concept of constitution-makingpower that is clearly akin to Sieyss constituent power. Schmitt understands consti-
tution-making power as the political will that has the power or the authority to make
a general decision that defines the manner and form of its own political existence.
In other words, constitution-making power determines the existence of the political
unity as a whole. Like Sieys, Schmitt further argues that the constitution understood
as the outcome of a sovereign act of constitution-making power cannot be subject
to normative constraints that could define or rule over its validity or legitimacy. The
validity of the constitution is not based on a higher norm or principle but merely on
a decision through which a nation defines the type and the norm of its own politicalexistence. The only criterion of constitutional validity can, for Schmitt, be the factual
will to exist in a particular way.40
So the validity of the constitution is not measured against a normative standard
such as a superior ethical norm or political principle. The decision of political exis-
tence or, perhaps more accurately, the decision to exist politically that determines the
type and the form of the constitution is valid if and only if the subject of constitu-
tion-making power, that is, the nation in constitutional democracies, has the factual
ability to make the required decision. The specific ways of existing politically that the
constitution establishes and institutes need not and cannot be justified in any otherway. Correspondingly, the constitution as a decision to exist politically can never be
dependent on preceding constituted restrictions.41
Individual constitutional norms cannot exhaust, absorb, or subsume the constitu-
tion-making power to which they owe their existence. Because it is constituent, consti-
tution-making power does not eliminate itself after it has once constituted a particular
institutional design. The constitution is the outcome of a political decision that cannot
operate retroactively and dissolve itself into what it may have constituted. So every
constitutional crisis or conflict that threatens the principles of the general political
decision, and all arising uncertainties and amendments, are decided through the sameconstitution-making power. Constitution-making power is uniform and indivisible. It
39 Sieys, supra note 38, at 138. On constituent power and democracy, see Andreas Kalyvas, Popular
Sovereignty, Democracy, and the Constituent Power, 12 CONSTELLATIONS. INTL J. CRITICAL & DEMOCRATICTHEORY223 (2005). On constituent power and politics, seeEmilios Christodoulidis, Against Substitution:The Constitutional Thinking of Dissensus, in THE PARADOX OF CONSTITUTIONALISM. CONSTITUENT POWER ANDCONSTITUTIONALFORM189(Martin Loughlin & Neil Walker eds., 2007).
40 SCHMITT, supranote 17, at 125. With an unfortunately familiar gesture, the absence of a normative frame-work conditioning the constituent sovereign decision gives Gross and Aolin reason to call Schmitts
theory nihilistic. SeeORENGROSS& FIONNUALANAOLIN, LAWINTIMESOFCRISIS. EMERGENCYPOWERSINTHEORYANDPRACTICE167 (2006). Such a gesture inevitably misses the point. If the legitimacy of the sovereigndecision were subject to an even superior normative framework, then the whole vocabulary of sover-
eignty would be pointless, except, perhaps, in terms of the framework itself.41 SCHMITT, supranote 17, at 136139.
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is not a supplementary power that coordinates between other separated powers, but
the comprehensive principle behind all other powers and their possible separations.42
For Schmitt, the continuity of the political unity that is established through the
constitution is not endangered by occasional constitutional violations as long as thecomprehensive principle of constitution-making power is not compromised. The only
exception that Schmitt recognizes is a revolution where the subject of constitution-
making power changes from, for example, monarch to nation or vice versa. Such a
change would, in Schmitts terms, completely annihilate the existing constitution.43
On the face of it, this would first seem like little more than a parallel formulation of
Kelsens discontinuity thesis.44But quite unlike Kelsen, Schmitt is not concerned with
the epistemic requirement of explaining everything with a pure normativist theory.
A normativist theory of the constitution will have to set the revolutionary phenom-
enon aside because it cannot be explained as positive norms. For Schmitt, by way ofcontrast, the revolutionary annihilation of the constitution merely reaffirms the supe-
riority of the factual over the normative, and so it validates his political constitutional
theory in general.
But an occasional constitutional violation would only be an individual exception
leaving the general validity of the constitution intact. As an example of an occasional
constitutional violation, Schmitt mentions the decision of a head-of-state to dismiss
a politically divided and ineffectual parliament and to call for new elections even if
the constitution does not recognize such powers or the circumstances in which these
powers have been used.45Occasional constitutional violations are not legal norms inthe general sense of the word and cannot subsequently be regarded as constitutional
norms, either. They come about in the interests of the existence of the political unity,
and for Schmitt they are, once again, an indication of the superiority of the factual over
the normative. A constitutional violation so understood is a factual political decision
and an exception, and it is always an indication of sovereignty. Traditional theories
of the Rechtsstaatare unable to account for the factuality of the sovereign exception
because it falls outside of the constitutional competences of state institutions. And
yet, it is a logically and legally necessary element of any constitutional theory.46
For Schmitt, then, factual constitutional violations as exceptions are not symp-toms of an anomaly. They are an indication of the superiority of the factual over the
normative and the guarantee of the vitality of political existence. In discussing the
42 Id.at 125126.43 Id.at 141143.44 See, e.g., KELSEN, supranote 28, at 208211. See alsoJohn Finnis, Revolutions and Continuity of Law, in
OXFORDESSAYSINJURISPRUDENCE. SECONDSERIES44 (A.W.B. Simpson ed.,1973).45 SCHMITT, supranote 17, at 148. Different constitutional cultures and theoretical frameworks have differ-
ent names for such violations. The American tradition often refers to them as constitutional events
perhaps wishing to emphasize how the violation was later absorbed into accepted constitutional practice,
while the European tradition is more prone to see a constitutional crisis in every violation. Levinson
and Balkin argue that [i]f a central purpose of constitutions is to make politics possible, constitutional
crises mark moments when constitutions threaten to fail at this task. Sanford Levinson & Jack M. Balkin,
Constitutional Crises, 157 U. PA. L. REV.707, 714 (2009).46 SCHMITT, supranote 17, at 154155.
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superiority of the factual, Schmitt often uses the adjective existential (existenziell).
But Schmitt is not an existentialist, or at least not in the Sartrean or Jaspersian sense
of the term.47With the adjective, Schmitt may wish to emphasize the ontic character
of his theory, that it is a theory of factual political life within a constitution.48
4. The political constitution
Therefore, for Schmitt, sovereign constituent power expresses itself in two ways. On
the one hand, it is the decision with which the nation constitutes the foundations of
its political existence. Through the constituent power that it factually exercises, the
nation determines the ways in which it will establish itself as a political unity through
its chosen political and legal institutions. This sovereign constituent power is, then,
constitution-making power:
The constitution in the positive sense originates from an act of constitution-making power.
The act of establishing a constitution as such involves not separate sets of norms. Instead, it
determines the entirety of the political unity in regard to its peculiar form of existence through
a single instance of decision. The act constitutes the form and type of the political unity, the
existence of which is presupposed.49
But sovereign constituent power also expresses itself as the superiority of the fac-
tual over the normative, as the factual ability to violate the normative framework,
which has been constituted as political and legal institutions, and to make exceptions
to it when political existence is threatened, without annihilating the constitution
through a revolutionary act. Schmitts claim concerning sovereignty and the state
of exception refers more generally to this second expression of sovereign constituent
power. A constitutional violation that, as an exception, still maintains the integrity
and the continuity of the political existence that is enshrined in the constitution is
a radical expression of factual political self-determination. Just as Sieyss constitu-
ent power, it must logically remain uninhibited by the constituted political and legal
institutions that have been set up. If the constitutional theory of the Rechtsstaatcan be
seen as a logical contradiction in the sense that the state can only exercise its sovereignpowers within the normative framework of its own constitution and competences,
for Schmitt, the constituent nature of constitution-making power is responsible both
for the constitution as the initial expression of political self-determination and for
the exceptions required when the existence of the political and legal institutions thus
constituted are threatened. Sovereign constituent power can, therefore, be seen as an
47 Ellen Kennedy does, however, attribute both Schmitts decisionism and his notion of the exception to
Kierkegaard. SeeELLENKENNEDY, CONSTITUTIONALFAILURE. CARLSCHMITTINWEIMAR4748 (2004).48 Only a year before the publication of Schmitts Constitutional Theory, Martin Heidegger had made the
distinction between existenziell, the common German spelling for existential, and existenzialcomment-
ing on the formers ontic (as opposed to the latters ontological) character as an expression of Daseins
possibilities to be itself, that is, to exist. These possibilities can be chosen, stumbled upon, or grown into,
but by either seizing upon such possibilities or neglecting them, Dasein decides its existence. MARTINHEIDEGGER, BEINGANDTIME33 (John Macquarrie & Edward Robinson trans., Harper & Row 1962).
49 SCHMITT, supranote 17, at 75.
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essential precondition of political constitutional theory rather than the dark anti-lib-
eral ethos of the Crown Jurist.
Elsewhere, Schmitt calls this constituent element dictatorial, and the choice of
terminology will, of course, further fuel controversies about Schmitts personal poli-tics.50Nevertheless, it is consistent with his general theory. Commissarial dictatorship
involves an exception to the constitution when it is threatened, and the use of dictato-
rial powers in such a situation involves a temporary suspension of the constitution
itself. The validity of legal norms implies a state of normality. In exceptional circum-
stances, when this normality is threatened, legal norms also run the risk of losing
their validity. Dictatorial action addresses the exceptional circumstances that threaten
that validity with the aim of creating a state in which law can become reality. This
allows Schmitt to conclude that, although commissarial dictatorship is, once again, a
factual rather than a normative phenomenon, it is still legally relevant: The consti-tution can be suspended without it becoming invalid only if the suspension is under-
stood as a concrete exception.51
In other words, commissarial dictatorship and the factual suspension of the con-
stitution do not invalidate the constitution. This applies just as much to the historical
circumstances of the Weimar Republic that Schmitt is specifically referring to as to a
more contemporary situation in which political and legal institutions exercise uncon-
stituted powers and authority. Commissarial dictatorship acts on the constituted
framework without being embedded in it itself and cannot, accordingly, be negated
by that constitution. This is what Schmitt specifically understands by constituentpower.52
But what makes Schmitts constitutional theory political in a way that politi-
cal constitutionalism allegedly is not? What is the political form of existence of the
state53that informs his constitutional theory? In short, what is political about polit-
ical constitutional theory?
In another context, Schmitt named the distinction between friend and enemy as
the criterion of a positive concept of the political.54Martin Loughlin, the only real
exception among political constitutionalists to specifically draw on Schmitt, takes the
distinction as one of his starting points. Loughlin notes that the distinction does notdepict the practice of politics or, as Loughlin will later call it, the second order of the
50 In 1931, three years before Hitler merged the offices of the Reichsprsident and the Chancellor, Schmitt
identified the former as the locus of a neutral power relatively independent of parliamentary control
but immediately drawing on a popular mandate. As the guardian of the constitution, the powers of the
neutral third were continuous but activated in times of need. SeeCARLSCHMITT, DERHTERDERVERFASSUNG[TheGuardian of the Constitution]132140 (1969). Schmitts reference to need places the office ofthe Reichsprsident within the dictatorial paradigm.
51 SCHMITT, DIE DIKTATUR, supra note 38, at 133134. See also Carl Schmitt, The Dictatorship of the ReichPresident according to Art 48 of the Reich Constitution, 18 CONSTELLATIONS. INTLJ. CRITICAL& DEMOCRATICTHEORY299 (2011), and the other articles in this special issue.
52 SCHMITT, DIEDIKTATUR, supranote 38, at 134.53 SCHMITT, supranote 17, at 187.54 See SCHMITT, supranote 16, at 2537. On the distinction, see alsoCARL SCHMITT, THEORY OF THE PARTISAN.
INTERMEDIATECOMMENTARYONTHECONCEPTOFTHEPOLITICAL(Gary L. Ulmen trans., 2007).
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political, but provides a theoretical criterion for the concept of the political itself. As
the first order of the political, the ever-present possibility of conflict and antagonism
that the distinction implies is an inescapable aspect of the human condition, and
Loughlin continues that Schmitt had the unsound tendency to raise the inevitabilityof conflict into a foundational principle.55
Although Loughlin himself seems to understand conflict more as actual strife,56
he is well aware that Schmitts bellicose conceptualization does not refer to actuality.
Schmitt emphasizes that:
War is neither the aim nor the purpose of nor even the very content of politics. But as an
ever present possibilityit is the leading presupposition which determines in a characteristic way
human action and thinking and thereby creates a specifically political behavior.57
Loughlins emphases on constitutional self-regulation and practical reason in gov-
erning conflicts situate his vision of public law in general and constitutional theory
in particular well within the parameters of political liberalism and a liberal account
of law. From the perspective adopted here, the resulting constitutional theory is politi-
cal in only a limited way.58This need not, however, be the case, and the potentiality
of conflict need not be the unsound starting point that Loughlin claims it is. If the
ever-present potentiality of conflict is recognized as an essential characteristic of the
political nature of the constitution, then everyday government is also political even
in the interim periods when conflicts do not actualize. This is analogous to the way in
which the sovereign decision affirms a normal state of affairs by refraining from the
exception. This was, of course, one of Schmitts central arguments. Who decides on
the exception also decides on the situation in its totality by defining where a normal
state of affairs ends and exception begins. Sovereign constituent power may well only
reveal itself when factual exceptions are made, but it is no less constituent or sovereign
in the dormant state of potentiality that allows for legally regulated government to
go about its usual business. In other words, even government is political if the ever-
present potentiality of conflict is embedded into the core of constitutional theory.
The constitution is political in the sense that the political unity establishes itself in
the act of constituting, and simultaneously announces the enmities that character-ize it both internally and externally. By constituting a set of values, principles, and
55 MARTINLOUGHLIN, THEIDEAOFPUBLICLAW3337 (2003).56 See id.at 4042.57 SCHMITT, supranote 16, at 34 (my emphasis). In his notes after the war, Schmitt talks about enmity poten-
tial [Feindschaftpotential ]. CARL SCHMITT, GLOSSARIUM. AUFZEICHNUNGEN DER JAHRE19471951 [Glossarium.Notes from the Years 19471951] at 213 (1991).
58 A similar point is, perhaps surprisingly, made in David Dyzenhaus, The Left and the Question of Law, 17
CAN. J. L. & JURISPRUDENCE 7, 24 (2004). Loughlins companion volume is considerably more continentalin its influences, but its argumentation proceeds along similar lines. He begins with the radical potential
of concepts such as constituent power, but then continues to redefine that potential into an instrument
of government as, for example, a necessary dialectics between the nation as both the factual subject of
constituent power and a normatively constituted institution. SeeMARTINLOUGHLIN, FOUNDATIONSOFPUBLICLAW221228 (2010). For a non-dialectical and theoretically provoking account of the demos that indemocracy both constitutes and is constituted, seeJACQUES DERRIDA, ROGUES. TWO ESSAYS ON REASON618(Pascale-Anne Brault & Michael Naas trans., 2005).
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institutions as the foundation of its political existence within a state, a nation exer-
cises its political self-determination through the constituent decision that the act of
constituting involves.59The constitution both establishes the institutions and declares
them as worthy of protection. By doing so, the constitution also defines its existen-tial other, that is, the external threats that may potentially endanger the political
existence that it is meant to protect. The threats may be extremist positions perceived
to be undemocratic, an individualistic philosophy hampering the development of a
planned economy, a religious worldview jeopardizing a fundamentally laic notion of
the public sphere, or even a past the traumas of which a nation is determined not to
relive.60Internally, the constitution also announces the undesired scenarios in which,
for example, the excessive use of factual powers by one branch of government or
another may jeopardize the ideal equilibrium that the constituted political and legal
institutions and their relationships represent calling for constituent countermeasuresby another branch that often actualize as exceptional constitutional violations.61
Political life is existence under constant threat.62The initial decision to constitute
political existence is always motivated by the threats that are perceived to potentially
endanger it and that are announced by a publicized enmity. But it can never eradicate
those threats completely. In other words, constituent constitution-making power does
59 James Boyd White notes how constitutions literally constitute political communities as a rhetorical
effect but leaves the political aspects of the constituent element underdeveloped. SeeJAMESBOYDWHITE,WHENWORDSLOSETHEIRMEANING. CONSTITUTIONSANDRECONSTITUTIONSOFLANGUAGE, CHARACTER, ANDCOMMUNITY231274 (1984). On Schmittian constitutional thinking and rhetorics, see alsoDAVIDW. BATES, STATESOFWAR. ENLIGHTENMENTORIGINSOFTHEPOLITICAL(2011).
60 Hegel makes the same claim in his Philosophy of Right: the constitution individualizes the state and must
by necessity also distinguish it from other individualities. Even an alliance of nations as an individuality
must generate opposition and create an enemy. GEORGWILHELMFRIEDRICHHEGEL, ELEMENTSOFTHEPHILOSOPHYOFRIGHT362 (Hugh Barr Nisbet trans., 1991). Schmitt addresses the same threat of enmity in his latergeopolitical work. The order of nomosmarks a territorial space that, once so marked, establishes a ten-
sion between, on the one hand, the orderly and firm dimension of the land and, on the other, the free
sea that represents both the potential of new conquests and the external threat posed to an established
state territory. SeeSCHMITT, supranote 19, at 172184 and CARLSCHMITT, LANDANDSEA(Simona Draghicitrans., 1997). See alsoMartti Koskenniemi, International Law as Political Theology: How to Read Nomos
der Erde?, 11 CONSTELLATIONS. INTL J. CRITICAL & DEMOCRATICTHEORY 492 (2004), and Mark Antaki, CarlSchmitts Nomos of the Earth, 42 OSGOODEHALLL.J.317 (2004). On the various dimensions of this phasein Schmitts work, seeWILLIAMHOOKER, CARLSCHMITTSINTERNATIONALTHOUGHT. ORDERANDORIENTATION(2009),and LOUIZAODYSSEOS& FABIOPETITO(eds.), THEINTERNATIONALPOLITICALTHOUGHTOFCARLSCHMITT. TERROR, LIBERALWARANDTHECRISISOFGLOBALORDER(2007). For a well-researched albeit hypercritical assessment from theperspective of political geography, seeStuart Elden, Reading Schmitt Geopolitically: Nomos, Territory and
Groraum, 161 RADICALPHILOSOPHY18 (2010).61 Gee and Webber understand a political constitution (and its legal counterpart) as a model, a necessar-
ily incomplete explanatory framework that contributes towards constitutional self-understanding even
in situations where there is fundamental disagreement about the constitution as a whole. Graham Gee
& Grgoire C. N. Webber, What Is a Political Constitution?, 30 OXFORDJ. LEGALSTUD.273 (2010). From theperspective adopted here, a political constitution is not a heuristic and cognitive framework for coping
with actual disagreement, but the mechanism through which potential disagreement is both publicly
announced and instituted.62 On politics, threat and risk, seeMICHAELMARDER, GROUNDLESSEXISTENCE. THEPOLITICALONTOLOGYOFCARLSCHMITT
3859 (2010).
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not exhaust itself through the political and legal institutions that it has established.
It reaffirms and reinvigorates itself in the constitutional violations that an actualized
existential threat may necessitate. The interplay of factual and exceptional violations
by one branch of government or another that occasionally actualize, accounts forwhat is continuously political about the constitution preventing it from collapsing
into a mere instrument of government. In its commitment to democracy and political
self-determination, political constitutional theory can no more adopt a wholesale nor-
mative position on the acceptability of factual violations as it can on the decision of a
nation to constitute its political existence in a particular way, be it through the strong
executive of a Bolivarian constitution, the theocratic elements of an Islamic constitu-
tion, or the representative legislature of Westminster democracy. It can only assess
the individual violations in relation to a political existence that is both constituted and
open to the exceptions of constituent power at the same time.63
5. Shared and separated powers
So what does political constitutional theory so understood imply for constitutional-
ist debates? What possible new insights could it give to contemporary issues? What
follows is an attempt to illustrate how the theory enables a reframing of factually
relatively uncontroversial and interrelated constitutional developments in the United
Kingdom, that is, the possible changes in the constitutional independence of the judi-
ciary especially after the Constitutional Reform Act 2005 and the Human Rights Act1998, and the more general strengthening of executive-led political government in
liberal democracies. The illustration aims to show how seemingly exceptional devel-
opments can be understood as normal phenomena belonging to the political nature
of constitutional practice.
The constitutional framework of a given state is often presented as a scheme of
power-sharing between branches of government or as a theoretical account of the
separation of powers.64The tripartite notion of the separation of powers does not fit
comfortably with the British Constitution and the two-party political system that blurs
the dividing line between the legislature and the executive branch. The role of thePrime Minister is not literally to execute or to implement the decisions of Parliament
but, rather, as the chief executive of the political party in power, to lead and coordi-
nate strategically the majority partys political agenda while in power.65This fusing
63 The openness of this position is reminiscent of Webers charismatic politics that I have discussed else-
where. SeeMax Weber, Politics as a Vocation, inFROMMAXWEBER: ESSAYS INSOCIOLOGY77 (Hans HeinrichGerth & C. Wright Mills trans., 1991), and Panu Minkkinen, The Legal Academic of Max Webers Tragic
Modernity, 19 SOCIAL& LEGALSTUD.165 (2010).64 Much of the current debate about the separation of powers has been about its incompatibility with what
political scientists have called the administrative state where executive powers are increasingly shared
with a salaried civil service. For a classic study, seeDWIGHTWALDO, THEADMINISTRATIVESTATE. A STUDYOFTHEPOLITICALTHEORYOFAMERICANPUBLICADMINISTRATION104129 (2007). For a more recent contribution, seeEOINCAROLAN, THENEWSEPARATIONOFPOWERS. A THEORYFORTHEMODERNSTATE(2009).
65 On the political advantages of executive dominance, see, e.g., Danny Nicol, Law and Politics after the Human
Rights Act, PUBLICL.722 (2006).
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of legislative and executive powers that Bagehot famously described as the effectual
secret of the English Constitution66 is not uniquethe German Constitution, for
example, gives the Chancellor similar strong executive powersbut the case of the
United Kingdom is, perhaps, peculiar. If the con