“Sovereign is he who decides on the exception.”
So opens Carl Schmitt’s Political Theology, a densely illuminating treatise on the nature of political authority. And for Schmitt, that authority is revealed when an extreme emergency arises that is not anticipated by the laws of a nation. In such an instance, “The most guidance the constitution can provide is to indicate who can act in such a case.”
Such a position leads Schmitt to reject the “rule of law” in any meaningful sense.
The law gives authority, said Locke, and he consciously used the word law antithetically to commissio, which means the personal command of the monarch. But he did not recognize that the law does not designate to whom it gives authority. It cannot be just anybody who can execute and realize every desired legal prescription. The legal prescription, as the norm of decision, only designates how decisions should be made, not who should decide. In the absence of a pivotal authority, anybody can refer to the correctness of the content. But the pivotal authority is not derived from the norm of decision. Accordingly, the question is that of competence, a question that cannot be raised by and much less answered from the content of the legal quality of a maxim.
More to the point, he writes, “What matters for the reality of legal life is who decides. Alongside the question of substantive correctness is th question competence.”
Food for thought this political season.