CONSTITUTIONAL THEORY

By Carl Schmitt
Duke University Press
Copyright 2008 Duke University Press All right reserved. ISBN: 978-0-8223-4070-6

Chapter One
1. Absolute Concept of the Constitution (The Constitution as Unified Whole) The term "constitution" has various senses. In a general meaning of the word, everything, each man and thing, every business and association, is somehow included in a "constitution," and everything conceivable can have a "constitution." A distinctive concept does not derive from this. A proper understanding requires that the meaning of the term "constitution" be limited to the constitution of the state, that is to say, the political unity of the people. In this limited meaning, "constitution" can describe the state itself, and, indeed, an individual, concrete state as political unity or as a particular, concrete type and form of state existence. In this instance, it means the complete condition of political unity and order. Yet "constitution" can also mean a closed system of norms and, then, in the same way, can designate a unity, however, not a concrete existing unity, but instead a reflective, ideal one. In both cases, the concept of the constitution is absolute because it expresses a (real or reflective) whole. Moreover, a form of expression is dominant today, which calls any series of specially constituted statutes a constitution. In the process, constitution and constitutional law are treated as identical. Every individual constitutional law can appear as a constitution, so the concept becomes relative. It no longer concerns an entirety, an order and a unity. It involves, rather, a few, several, or many individual statutory provisions constituted in a particular way. The usual textbook definition is a constitution = fundamental norm or basic law. What "fundamental" means here remains mostly unclear. It often means something especially politically important or inviolable, just as one also speaks ambiguously of "fundamental" rights, "anchorage," and so forth. The constitutional theoretical meaning of such turns of phrase result from the following conceptual investigation; compare the overview of the various meanings of "lex fundamentalis," "fundamental norm" or "fundamental law" below 5, p. 42. I. Constitution in the Absolute Sense can mean, to begin with, the concrete manner of existence that is a given with every political unity. 1. The first meaning is constitution = the concrete, collective condition of political unity and social order of a particular state. Political unity and social order is part of every state. It is, in other words, some principle of unity and order, some decision-making authority that is definitive in critical cases of conflicts of interest and power. One can term this collective condition of political unity and social order a constitution. The word, then, designates not a system or a series of legal principles and norms, according to which the formation of the state will and the exercise of state activity regulates itself, and in the following of which the order is evident. Rather, it actually only designates the concrete, individual state, such as German Reich, France, or England, in its concrete political existence. The state does not have a constitution, which forms itself and

functions "according to" a state will. The state is constitution, in other words, an actually present condition, a status of unity and order. The state would cease to exist if this constitution, more specifically, this unity and order, ceased to exist. The constitution is its "soul," its concrete life, and its individual existence. The word "constitution" often has this sense in Greek philosophy. According to Aristotle, the state ([TEXT NOT REPRODUCIBLE IN ASCII]) is an order ([TEXT NOT REPRODUCIBLE IN ASCII]) of the naturally occurring association of human beings of a city ([TEXT NOT REPRODUCIBLE IN ASCII]) or area. The order involves governance in the state and how it is organized. By the virtue of this order, there is a ruler ([TEXT NOT REPRODUCIBLE IN ASCII]). However, a component of this order is its living goal ([TEXT NOT REPRODUCIBLE IN ASCII]), which is contained in the actually existing property of the concrete political formation (Politics, bk. IV, chap. I, 5). If this constitution is eliminated, the state is as well; if a new constitution is founded, a new state arises. Isocrates (Areopag. 14) calls the constitution the soul of the city ([TEXT NOT REPRODUCIBLE IN ASCII]). It is perhaps best to clarify this idea of the constitution through a comparison. The song or musical piece of a choir remains the same if the people singing or performing change or if the place where they perform changes. The unity and order resides in the song and in the score, just as the unity and order of the state resides in its constitution. When George Jellinek (Allgemeine Staatslehre, p. 491) describes the constitution as "an order that forms itself according to the state will," he confuses an actually existing order with a norm, which functions according to something lawlike and proper. All the ideas coming into consideration here, such as unity, order, aim ([TEXT NOT REPRODUCIBLE IN ASCII]), life, soul, should denote something existing, not something merely normative, properly commanded. 2. The second meaning is constitution = a special type of political and social order. In this instance, constitution means the concrete type of supremacy and subordination because there is in social reality no order without supremacy and subordination. The constitution is a special form of rule, which is part of every state and not detachable from its political existence, for example, monarchy, aristocracy, or democracy, or however one intends to divide up state forms. Constitution is the equivalent of state form. In this regard, the word "form" also denotes something already existing, a status, not something of the nature of a legal principle, rule, or normative command. Even in this sense of the term, every state obviously has a constitution, for the state always corresponds to one of the forms in which states exist. Even in this regard, it would be more exact to say that the state is a constitution. It is a monarchy, aristocracy, democracy, council republic, and does not have merely a monarchical or other type of constitution. The constitution is a "form of forms," forma formarum. In this sense, the word "status" (alongside other meanings of the ambiguous term, for example, condition in general, rank, etc.) is especially used in the medieval period and in the seventeenth century. Relying on Aristotle, Thomas Aquinas in his Summa theologica (I, II, 19, 10c) distinguished among state forms: 1. aristocratic state (status optimatum), in which a minority that is somehow distinguished and exceptional rules (in quo pauci virtuosi principantur); 2. oligarchy (status paucorum), in other words, the rule of a minority without regard to an especially distinguished quality; 3. democracy (the status popularis), in which the multitude of farmers, craftsmen, and workers rule. In terms of state forms, Bodin (Les six livres de la Rpublique, 1st edition 1577, especially in book VI) distinguishes the popular state (tat populaire), monarchical state (tat royal), and aristocratic state. In Grotius (De iure belli ac pacis 1625), status is, so far as the expression is of interest in this regard, the "forma civitatis," and, as such, also a constitution. In a similar way, Hobbes (for example, De cive 1642, chap. 10) speaks of status monarchicus, status democraticus, status mixtus etc. A successful revolution directly establishes a new status and eo ipso a new constitution. Thus, in Germany

after the transformation of November 1918, the Council of People's Deputies could speak of the "constitution established through the revolution" in its announcement of 9 December 1918 (W. Jellinek, "Revolution and Reichsverfassung," Jahrbuch des ffentlichen Rechts IX, 1920, p. 22). 3. The third meaning is constitution = the principle of the dynamic emergence of political unity, of the process of constantly renewed formation and emergence of this unity from a fundamental or ultimately effective power and energy. The state is understood not as something existing, resting statically, but as something emerging, as something always arising anew. Political unity must form itself daily out of various opposing interests, opinions, and aspirations. According to the expression of Rudolf Smend, it must "integrate" itself. This concept of constitution stands in opposition to previous ones, which speak of a status (in the sense of a static unity). Nevertheless, Aristotle's idea is there is also the dynamic element. The sharp separation of static and dynamic has something artificial and violent about it. In any case, this "dynamic" concept of constitution remains in the sphere of (emerging) being and of the existing. The constitution, therefore, does not yet become (as is the case with the constitutional concept to be handled below in section II a mere rule or norm, under which one subsumes something. The constitution is the active principle of a dynamic process of effective energies, an element of the becoming, though not actually a regulated procedure of "command" prescriptions and attributions. Lorenz von Stein considered this constitutional concept in a large, systematic framework. He speaks, however, only of the French constitutions since 1789. Yet at the same time, he touches on a general dualistic principle of constitutional theory, which is recognized especially clearly in Thomas Aquinas (Summa Theologica, I, II, 105, art. 1), while two things are emphasized (duo sunt attendenda): first, the participation of all citizens in the formation of the state will (ut omnes aliquam partem habeant in principatu), and, second, the type of government and rule (species regriminis vel ordinationis principatum). It is the old opposition between freedom and order, which is related to the opposition of the principles of political form (identity and representation) developed below ( 16, II). For Stein, the first constitutions of the revolution of 1789 (specifically, the constitutions of 1791, 1793, 1795) are state constitutions in the actual sense in contrast to the state orders), which begin with Napoleon (1799). The distinction is that the state constitution is that type of order which produces the agreement of the individual will with the collective state will and incorporates individuals into the living body of the state organism. All constitutional institutions and processes have the sense that the state "recognizes itself as the personal unity of the will of all free personalities that is determined through self-mastery." By contrast, the state order considers the individual and the authorities already as parts of the state and demands obedience from them. In the state constitution, state life rises from below to above; in the state order, it proceeds from above to below. The state constitution is the free formation of the state will; the state order is the organic execution of the will so formed (Geschichte der sozialen Bewegung in Frankreich, vol. I, Der Begriff der Gesellschaft , G. Salomon ed., Munich 1921, pp. 408/9; additionally, Verwaltungslehre, I., p. 25). The thought that the constitution is the effective fundamental principle of political unity found clear expression in the famous lecture of F. Lassalle, ber Verfassungswesen, 1862: "If, therefore, the constitution forms the basic law of a Land, then it would be an effective power." Lassalle locates this effective power and the essence of the constitution in actual power relations. Lorenz von Stein is the foundation for the nineteenth-century German thinking on constitutional theory (and, simultaneously, the conduit through which Hegel's philosophy of the state remains vital). Stein's thought is recognizable everywhere, in Robert Mohl, in the Rechtsstaat theory of Rudolf Gneist, in Albert Haenel. That stopped as soon as thought on constitutional theory ended. This means, specifically, it ceased with the ascendancy of Laband's method, which limits itself to exercising the art of literal interpretation of the text of constitutional provisions. That was called "positivism."

Rudolf Smend first set the problem of constitutional theory again in its full scope in his essay "Die politische Gewalt im Verfassungsstaat und das Problem der Staats-form" (Festgabe fr W. Kahl, Tbingen 1923). In the following, I will often revisit the ideas of this essay. Thus, the theory of "integration" of state unity, as it has until now-unfortunately only in the form of a sketch-been presented, seems to me to be a continuation of the theories of Lorenz von Stein. II. A constitution in the absolute sense can mean a fundamental legal regulation. In other words, it can signify a unified, closed system of higher and ultimate norms (constitution equals norm of norms). 1. In this regard, constitution is not an actual existing condition, also not a dynamic becoming. It is, rather, something normative, a mere "command." Yet it is not a matter of individual laws or norms, perhaps even if they are very important or distinguished by external features. It involves the entire normative framework of state life in general, the basic law in the sense of a closed unity, and of the "law of laws." All other laws and norms must be traced back to this one norm. In one such meaning of the word, the state becomes a legal order that rests on the constitution as basic norm, in other words, on a unity of legal norms. In this instance, the word "constitution" denotes a unity and totality. Consequently, it is also possible to identify state and constitution, not, however, as in the previous meaning of the term, in the manner of state = constitution, but the other way around. The constitution is the state, because the state is treated as something genuinely imperative that corresponds to norms, and one sees in the state only a system of norms, a "legal" order, which does not actually exist, though it is valid in normative terms. The legal order, nonetheless, establishes an absolute concept of the constitution because a closed, systematic unity of norms is implemented and rendered equivalent to the state. Therefore, it is also possible to designate the constitution as "sovereign" in this sense, although that is in itself an unclear form of expression. For only something existing in concrete terms can properly be sovereign. A merely valid norm cannot be sovereign. (Continues...)

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