Legality and Legitimacy
216
Legality and Legitimacy
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Overview
Legality and Legitimacy is sure to provide a compelling reference point in contemporary debates over the challenges facing constitutional democracies today. In addition to Jeffrey Seitzer’s translation of the 1932 text itself, this volume contains his translation of Schmitt’s 1958 commentary on the work, extensive explanatory notes, and an appendix including selected articles of the Weimar constitution. John P. McCormick’s introduction places Legality and Legitimacy in its historical context, clarifies some of the intricacies of the argument, and ultimately contests Schmitt’s claims regarding the inherent weakness of parliamentarism, constitutionalism, and the rule of law.
Product Details
| ISBN-13: | 9780822385769 |
|---|---|
| Publisher: | Duke University Press |
| Publication date: | 02/26/2004 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 216 |
| File size: | 559 KB |
About the Author
Carl Schmitt (1888–1985) was a leading German political and legal theorist. Among his many books are The Idea of Representation, The Crisis of Parliamentary Democracy, Political Romanticism, and The Concept of the Political.
Jeffrey Seitzer is the author of Comparative History and Legal Theory: Carl Schmitt in the First German Democracy. John P. McCormick is Associate Professor of Political Science at the University of Chicago. He is the author of Carl Schmitt’s Critique of Liberalism and editor of Confronting Mass Democracy and Industrial Technology, published by Duke University Press.
Carl Schmitt (1888–1985) was a leading German political and legal theorist. Among his many books are The Idea of Representation, The Crisis of Parliamentary Democracy, Political Romanticism, and The Concept of the Political.
Jeffrey Seitzer is the author of Comparative History and Legal Theory: Carl Schmitt in the First German Democracy. John P. McCormick is Associate Professor of Political Science at the University of Chicago. He is the author of Carl Schmitt’s Critique of Liberalism and editor of Confronting Mass Democracy and Industrial Technology, published by Duke University Press.
Read an Excerpt
Legality and legitimacy
By Carl Schmitt
Duke University Press
ISBN: 0-8223-3174-8
Chapter One
The Legislative State and the Concept of Law
The nineteenth-century constitutional monarchy was a legislative state. It was to a great extent a parliamentary legislative state precisely in the decisive point, specifically, its concept of law. Only a decision receiving the consent of the representative assembly, or legislature, was a valid law in the formal sense. Such formal concepts of constitutional law are essentially political concepts. For this reason, it was the decisive triumph of the legislature that law appeared essentially in the form of statutes and that positive law was in essence statutory law, but that by definition a valid statute required a decision of the legislature. Indeed, one adhered firmly to the view that under statute was understood "every legal norm" and also that customary [1958/275] law was valid as positive law. But, of course, customary law was valid only as simple law and could be eliminated or circumvented by the wave of the lawmaker's hand, and, in this regard, the legislature may act more swiftly than customary law. Moreover, in certain, especially important areas of legal life, such as criminal law, but also in constitutional and in administrative law, the permissibility of customary law is still very controversial. Practically speaking, the recognition of customary law is always a certain restrictive reservation working to the disadvantage of thelawmaker. Consequently, the acceptability of customary law is denied where one fears it could damage the trust in the legislator so central to the legislative state. One must not forget that the German theory of customary law came to fruition in the Historical School of Law before 1848, so its actual polemical-political significance was determined through the opposition against the legislative right of the absolutist Monarchs [1932/21]. Regarding the effects on the organization of the state, the recognition of customary law always means a limitation on the parliamentary lawmaker to the benefit of other organs, especially, of course, the judiciary. The same holds true for all constructions of some "conceptual necessity," that is to say, that which is also substantively compelling for the lawmaker. A good example of this is Fr. Eisele's 1885 essay, to which G. Husserl has thoughtfully brought attention again. Another example is provided by the current opinion of the Reichsgericht on the question of the essential character of the civil servant. According to the decision, the transfer of authoritarian state grants of authority without a formal post should itself justify the properties of the civil servant by virtue of the "inner essence of the matter," because the opposing assumption would be "nonsense" and the lawmaker cannot institute "something that is legally impossible and not executable." In the essay just mentioned (p. 278), Eisele expressed what is at issue here: "It is a question of the boundaries of legislative power." Such boundaries can be derived from logical or reflective necessities just as well as from customary law.
Apart from such limitations, which are very controversial in their concrete application, the images of legal science and legal practice were [1958/276] (and still certainly are) mastered by a series of simple equivalencies. Law = statute; statute = the state regulation that comes about with the participation of the representative assembly. Practically speaking, that is what was meant by law when one demanded the "rule of law" and the "principle of the legality of all state action" as the defining characteristic of the Rechtsstaat. In the final analysis, everything that in the course of the nineteenth century would develop into a still efficacious system and inventory of concepts, formulas, and postulates pertaining to the Rechtsstaat rested on this congruence of law and statute. The state is law in statutory form; law in statutory form is the state. Obedience will be granted only to the statute; only through the law in statutory form is the right to resistance eliminated. There is only legality, not [1932/22] authority or commands from above. Under the heading "The Rule of Law" in a classic chapter of his work on administrative law, Otto Mayer wrote: "The highest type of state will is that which is expressed in the name of the law" (1924, 64). According to Otto Mayer, three features characterize such a legislative state: the statute's power to create law that is objective (in contrast to the internal administrative order and instructions to subordinate organs and officials); the primacy of the statute (namely, primacy over all other conceivable types of state activity); and the legislative reservation clause, more specifically, the monopoly to interfere in constitutionally guaranteed fundamental and liberty rights, which the statutory regulation has in contrast to all other types of state activity. In other words, the lawmaker, and the legislative process under its guidance, is the final guardian of all law, ultimate guarantor of the existing order, conclusive source of all legality, and the last security and protection against injustice. Misuse of the legislative power and of the lawmaking process must remain out of consideration in practical terms, because otherwise a differently constituted state form, an entirely different structure and organization, would become immediately necessary. The preexisting and presumed congruence and harmony of law and statute, justice and legality, substance and process dominated every detail of the legal thinking of the legislative state. Only through the acceptance of these pairings was it possible to subordinate oneself to the rule of law precisely in the name of freedom, remove the right to resistance from the catalogue of liberty rights, and grant to the statute the previously noted unconditional priority. In regard to the priority of the statute, one saw in the subordination of the judge to the statute a guarantee of judicial [1958/277] independence, found in the legality of the administration the most important protection against misuse of state power, and set all of the constitutionally guaranteed fundamental rights undoubtedly at the disposal of the legislature, which can interfere in these rights at its discretion by virtue of the "legislative reservation" clause.
The lawmaker in the legislative state is obviously always only the one, simple legislature. As has already been emphasized, every congruence of [1932/23] different types of lawmakers and of mutually relativizing concepts of law destroys the legislative state itself. In the legislative state with a closed system of legality, there cannot be numerous "sources of the law," as under Roman public law, for example: leges, Plebiszite, Senatusconsulte; constitutiones principum, magistratische Edicte, Consulta prudentium, etc. The lawmaker of a logically consistent legislative state must retain its "monopoly" of legality. However, what should occur when the trust in the lawmaker ceases to be based on the harmony of justice and legislative results was hardly considered in the prewar era, let alone answered. With its complicated restrictions and counterbalances-bicameral legislature, independent, royal government, supported by army and civil service, federal controls and counterweights-the legislative process contains sufficiently strong guarantees of moderation and an adequately secure protection of freedom and property against arbitrariness and misuse of the legal form. In such a state form, a purely formal concept of law, independent of all content, is conceivable and tolerable. Even if one unconditionally, without compromise and presuppositions, views everything that those in responsible positions decide via the legislative process as alone definitive of positive rights, all the typical, fundamental principles and institutions pertaining to the Rechtsstaat, such as, for example, the legal obligation of the independent judge to faithfully enforce statutes, the guarantee against arbitrary punishment contained in the principle "no sentence without statute," or the statutory reservation on fundamental and liberty rights, would still be sensible and tolerable. They would be genuine bonds, effective guarantees, and real reservations, because the unerring, unproblematic, direct confidence in the simple lawmaker and the legislative process does not require any further bonds, guarantees, or reservations. Only because of the unshakable confidence in the [1958/278] legislature and its type of laws can principles remain unexpressed, principles such as "[t]he right of the lawgiver is unlimited; all other rights of state power are limited" (Leuthold 1884), or "[t]he legislature can infringe on property" [1932/24] (Anschutz 1912).
This confidence remains the prerequisite of each and every constitution that organizes the Rechtsstaat in the form of a legislative state. Otherwise, the legislative state would be a rather complicated absolutism; the unconditional claim to obedience would be an open, coercive act of domination; and the honorable renunciation of the right to resistance would be an irresponsible act of stupidity. When the concept of law is deprived of every substantive relation to reason and justice, while simultaneously the legislative state is retained with its specific concept of legality concentrating all the majesty and dignity of the state on the statute, then any type of administrative directive, each command and measure, every order to any officer or soldier, and all detailed instructions to a judge, by virtue of the "rule of law," can be made legal and given the form of law through a decision of parliament or by the other organs participating in the legislative process. The "purely formal" reduces itself then to an empty term and to the slogan "statute," giving up the connection with the Rechtsstaat. All the dignity and majesty of the statute depends exclusively and directly, more specifically with directly positive-legal meaning and effect, on this trust in the justice and reason of the legislature itself and in all the organs participating in the legislative process. All legal guarantees and insurance, every protection against mis-use, are placed in the person of the all-powerful lawmaker or in the distinctiveness of the lawmaking process. If that is not to be completely senseless and pure arbitrariness, it must be dominated entirely by the presupposition of the already noted trust, which first leads to the congruence of justice and formal law. By no means is this system of legality without presuppositions. An unconditional equivalence of law with the results of any particular formal process, therefore, would only be blind subordination to the pure decision of the offices entrusted with lawmaking, in other words, a decision detached from every substantive relation to law and justice, and, consequently, an unconditional renunciation of any resistance. It would be sic volo sic jubeo in its most naive form and only conceivable [1958/279] psychologically on the basis [1932/25] of the remnant of some superstition or as residues of an earlier, substantively richer, religious-like belief in the statutory form. One can term that "positivism," just as one can designate uncritically every type of decisionism as positivism. Only this term no longer deceives one that the former, unconditional formalism is a purely politically motivated claim to subordination, with an equally politically motivated denial of every right to resistance.
Prewar German state theory always recognized a substantive concept of law alongside a formal one. "One cannot get by in theory and practice without the substantive concept of law," according to Anschutz (1901, 33), "and the Prussian Constitution cannot be understood or explained without it." On this basis, the objectively determined characteristics of law are also acknowledged. Law in the substantive sense is a legal norm or legal principle, a determination of what should be right for everyone. One retained the view that a formal statute normally contains a substantive legal principle and is distinguishable from any command. Also, the dominant understanding of the need for a sanction to make a command into a legal rule in the form of a statute shows that the distinction of norm and command, of statute and measure, was still current. "Every statute is comprised of two different parts, the one containing the rule itself, the other the legal command, or the order of obedience" (Laband). But one did not conclusively render this connection between legal norm and statute into a public law definition of the statute that clearly distinguishes, for example, the statute as a general, lasting rule from a sheer command or mere measure. Alongside this concept enters a second, entirely different concept of the statute, which, however, was also termed "law in the substantive sense" (specifically, therefore, because the concept was not "formal"): namely, the statute as an "interference in the freedom and property of the citizen." This circumstance is only explicable in reference to the situation of the nineteenth century and rests on the opposition of state and society, government and representative assembly, bureaucrats (subordinated to a "specified power [1932/26] relationship") and the free state citizen, finally on the general distinction pertaining to the bourgeois Rechtsstaat between the free (in principle unlimited) private sphere and the preexisting, statutory [1958/280] (hence, in principle limited and definable) grant of state power. A further distinction stemming from this is that between the statute or, more precisely, a decree with the force of law as an "interference with the freedom and property of the state citizen" and the administrative decree as an act that does not intrude on this sphere of freedom, but rather only applies "inside the organs of administrative authority" (Anschutz).
Of course, defining statutes as involving "interference with freedom and property" had only a political meaning in a polemical sense directed against the authoritarian state executive, more specifically, against the royal government and its army and bureaucracy. That one compared the two entirely disparate criteria of a statute (substantive right and interference!), both "substantive," with a "formal" criterion was not elegant in abstract-logical terms, but it was readily understandable given the concrete domestic political situation of the nineteenth century. By contrast, it had to confuse the concepts of a legislative state that current thinking, despite both its "substantive" concepts of law, ascribed to the formal lawmaking process the capacity to take advantage of the form of the statute for any intended purpose, though the resulting statute was no longer a law in the substantive sense and, therefore, had nothing more to do with one or the other substantive, conceptual definitions. In this way, the entire dignity of the Rechtsstaat, which was derived from the first substantive concept of law, law = legal norm, and which radiated out to include the formal legislative procedure, was cut off from its origin and from its source, particularly from its objective connection with the law. At the same time, the idea of protection and security residing in the second concept of the statute (interference with freedom and property) was surrendered to the lawmaker, specifically in favor of a formal, purely political concept of statute detached from every relation to law and justice. The statute no longer needs to be, according to its purpose, a general (in the sense of like handled as like), lasting regulation with a [1932/27] definable and certain content. The lawmaker creates what he wants in the lawmaking process; that process is always "law," and it always creates "right." Through this change, the way was open to an absolutely "neutral," value- and quality-free, formal-functional concept of legality without content. While in administrative law, one still strictly retained the general character of the decree (in contrast to the administrative directive) and considered the generality requirement in this context conceivable and even [1958/281] necessary; and though also in this context otherwise definite characteristics of the norm were acknowledged, such as determinable content, proportionality, equality, one dealt with everything in regard to the statute in public law, where it had far greater practical significance, as a pointless theoretical game lacking firm boundaries.
(Continues...)
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Table of Contents
Translator’s Preface / Jeffrey Seitzer ixIdentifying or Exploiting the Paradoxes of Constitutional Democracy? An Introduction to Carl Schmitt’s Legality and Legitimacy JOHN P. McCORMICK xiii
Legality and Legitimacy
Introduction: The Legislative State System of Legality Compared to Other State Types (Jurisdiction, Governmnetal, and Administrative States) / John P. McCormick 3
I: The System of the Legality of the Parliaamentary Legislative State
1. The Legislative State and the Concept of Law 17
2. Legality and the Equal Chance for Achieving Political Power 27
II: The Three Extraordinary Lawgivers of the Weimar Constitution
3. The Extraordinary Lawgiver Ratione Materiae: The Second Principal Part of the Weimar Constitution and a Second Constitution 39
4. The Extraordinary Lawgiver Ratione Supremitatis: Actual Meaning - Plebiscitary Legitimacy instead of Lgislative State Legality 59
5. The Extraordinary Lawgiver Ratione Necessitatis: Actual Meaning - The Administrative State Measure Displaces the Parliamentary Legislative State Statute 67
Conclusion 85
Afterword (1958) 95
Appendix: Selected Articles of the Weimar Constitution 103
Notes 109
Works Cited by Carl Schmitt in Legality and Legitimacy 161
Index 165