If the sovereign state`s decision on the exception is not subject to any substantial legal constraints, the power to decide on a state of emergency is equivalent to the power to decide what should be considered a state of emergency (PT 13; Norris, 2007). However, a sovereign`s opinion on this issue must respond to prevailing social attitudes. Otherwise, a sovereign could hardly have the de facto ability to override the law and successfully deal with the perceived state of emergency. To do this, his decision must be supported by a sufficiently large and powerful electorate. Nevertheless, the need for sovereign decisions will be greater in a society torn apart by serious ideological or social conflicts. And if there is no agreement among social groups on the situation that should be considered normal or exceptional, the sovereign decision will inevitably have to side with the conception of normality of one group against that of another. In other words, the sovereign creation of a state of normality constitutes the political identity of a community, and it is likely to do so through the violent oppression of those whose conception of normality differs from that of the sovereign (D 132-47). The question of the legitimacy of the law therefore revolves around that of the legitimacy of a sovereign exercise of a fundamental power in its identity. Schmitt concludes partisan theory with the following statement: “The theory of the partisan leads to the question of the concept of politics, to the question of the real enemy and to a new nomos of the earth. [57] Schmitt`s work on partisans has since inspired comparisons to the “terrorist” after 9/11 in recent research. [58] Schmitt believes that this argument will be valid even if an initiative to amend the constitution requires a qualified majority. Political decisions based on simple majority voting are legitimate only if citizens share a political identity, in which case they will also agree on a set of constitutional foundations.
Where they do not, the identity of the ruler and all the governed is no longer preserved, and majority rule therefore becomes a mere license for the oppression of those who happen to be in the minority. Such abolition, Schmitt argues, does not become more legitimate when a qualified majority requirement is raised and fulfilled. The fact that a numerical majority is relatively large and a numerical minority relatively small does not mean that, when there is no longer a common political identity, we are closer to an identity between the ruler and all the governed than in the case of a simple majority (LL 39-58). Schmitt concludes that it would be absurd to believe that the formal amending procedures provided for by a democratic constitution can legitimately be used to overturn its constitutional foundations (LL 85-94). Before 1933, Schmitt used this argument to oppose a legal seizure of power by the National Socialists (Bendersky 1983, 107-91). It should also be noted that his assertion that there must be limits to constitutional changes in a democratic constitution based on the principle of popular sovereignty, and that these limits legitimize the notion of “militant democracy” willing to restrict individual rights to self-defence, had a great influence on post-war constitutional thinking. in Germany and elsewhere (cf. Ehmke 1953, 33-53; Fox and Nolte, 1995, pp.
18-20; Conrad, 1999; Colon-Rios 2012, 126-51). Schmitt`s constitutional theory, however, was not an unconditional defense of liberal democracy. While Schmitt denies the possibility of changing the fundamental character of an internally established constitution, and denounces the dangers of the tyranny of a mere numerical majority, he nevertheless affirms the possibility of a fundamental constitutional amendment by sovereign dictatorship and makes clear that the German people, in a renewed exercise of their constituent power, legitimately adopt a form of illiberal and non-parliamentary democracy. (CT 75-7). The exclusive character of the friend-foe distinction, which must be imposed by an extra-legal sovereign dictatorship in order to create a basis for the normal functioning of the constitutional order, raises further doubts about the democratic character of Schmitt`s constitutional theory (cf. Kraft-Fuchs 1930; Vinx, 2013a). Carl Schmitt is the most influential but also the most controversial German political theorist of the twentieth century. Its influence extends far beyond national borders and jurisprudence. The literature on his work is endless. Meanwhile, the political implications up to political theology as well as the historical and biographical context are increasingly highlighted.
Thus, this book is a healthy provocation, since the authors understand Schmitt primarily as a legal theorist. The heart of his theory lies – contrary to the usual reduction to “decisionism” – in his institutionalism and his conception of the concrete order. The attempt to see Schmitt`s entire oeuvre “through the prism of his institutional theory” is a novelty. The authors move it – this is an unconventional view – close to H.L.A. Hart`s concept of legal norms. In this context, it is important to examine both the legal component of Schmitte`s logic and the position of his fellow lawyers who have exposed Schmitt`s argument as pseudo-legal and exposed legal terminology with the aim of blowing up the free democratic constitutional order. The best window is a 1932 trial decided at a time when Hitler`s rise to power seemed not only avoidable, but unlikely. Hamlet or Hecuba: The Intrusion of the Time into the Play was published in 1956 and was Schmitt`s most comprehensive literary critique.
Schmitt turns his attention to Shakespeare`s Hamlet, arguing that the meaning of the work depends on its ability to integrate the story in the form of the taboo of the queen and the distortion of the figure of the avenger. From this interpretation, Schmitt develops a theory of myth and politics that serves as the cultural basis for his concept of political representation.