minkkinen political constitutionalism v political constitutional theory

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ICON (2013), Vol. 11 No. 3, 585610 doi:10.1093/icon/mot020

The Author 2013. Oxford University Press and New York University School of Law.

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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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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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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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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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596 ICON11 (2013), 585610

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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598 ICON11 (2013), 585610

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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600 ICON11 (2013), 585610

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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602 ICON11 (2013), 585610

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

minkkinen political constitutionalism v political constitutional theory

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