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Thesis Schmitt’s uncomfortable point survives: no constitution can fully govern its own emergencies

Sana Mir Fellow
· 6 replies · 246 views
Power & the stateAfrican & AfricanaContinentalIndianCarl SchmittLudwig Wittgenstein#constitutionalism#emergency-powers#sovereignty#state-of-exception
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Where it stands

Carl Schmitt's Political Theology (1922) opens with a sentence that every journalist covering courts eventually meets: sovereign is he who decides on the exception.

The argument goes like this. Constitutions specify normal procedures. Emergencies arise that those procedures did not anticipate. Someone must decide that there is an emergency and what to do about it. That decision cannot itself be fully rule-governed, or it would not be an exception. So whoever makes it is the real sovereign, and constitutional limits are always provisional.

I know where Schmitt went: he joined the Nazi party in 1933, and his account of Weimar's emergency article (Article 48) is not a neutral description. I accept the standard objections too: modern constitutions specify triggers, time limits and judicial review for emergencies; and his argument jumps from some discretion to unlimited discretion without justification.

But I want to defend the residue. No set of rules can specify its own application in every case. Somebody, somewhere, decides whether the conditions for an emergency are met, and in the first hours of a crisis, before any court can sit, that decision is effectively unreviewable. I've watched courts arrive weeks later to review decisions whose effects were already irreversible.

So my thesis: Schmitt's conclusion is wrong and dangerous, but his premise is true, and constitutionalism has to admit it rather than pretend that good drafting can abolish the problem.

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6 replies

For the thesis 2

  1. Hamza Qureshi

    For Fellow

    For. Our own legal history is a long commentary on this. Courts in several countries, faced with extra-constitutional seizures of power, have invented doctrines of necessity to validate after the fact what they could not prevent before it. That is Schmitt's exception arriving in judicial robes. You're right that drafting can't abolish the problem; the most a court can do is decide how much it will later endorse.

  2. Tomasz Wójcik

    For Fellow

    For, from logic. Wittgenstein's point about rule-following is relevant: a rule cannot contain the rules for its own application, or you get a regress. Somewhere a judgment is made that isn't itself rule-governed. That isn't Schmitt's sovereignty, it's just what applying rules involves. But it means Sana's residue is not a political accident; it's structural, and every system has it.

Against the thesis 3

  1. Thandeka Mokoena

    Against Fellow

    Against, at least against your conclusion. South Africa's Constitution, section 37, shows how far drafting can go. A state of emergency can be declared only on stated grounds, lasts a limited time unless Parliament extends it, can be reviewed by any competent court, and comes with a table of rights that cannot be suspended at all. Is there discretion in the first hours? Yes. Is it unlimited or unreviewable? No. That's the gap between "some discretion" and "sovereign".

    Helpful · 1
  2. Johanna Reinhardt

    Against Fellow

    Against. Schmitt's opponent in the early 1930s was Hans Kelsen, who argued that the guardian of the constitution should be a constitutional court, not the president. History seemed to settle that debate in Schmitt's favour for a decade and in Kelsen's for the rest of the century: the postwar constitutional courts are Kelsen's answer. Your "residue" is real, but it's an argument for fast and independent review, not for Schmitt's conclusion.

    Helpful · 2
  3. Deepa Nair

    Against Fellow

    Against. India's Emergency of 1975 to 1977 is a case where the system learned to bind the trigger. The 44th Amendment in 1978 replaced "internal disturbance" with "armed rebellion" as a ground for declaring an emergency and required the cabinet's written advice, among other changes. Discretion remains, but its scope was narrowed by people who had seen what it could do. Constitutionalism isn't the denial of the residue; it's the slow work of shrinking it.

    Helpful · 1

Other replies

  1. Sana Mir

    Fellow

    Thandeka, Johanna, I accept that the slide from some to unlimited discretion is what makes Schmitt dangerous, and that section 37 is a serious answer. What remains, for me, is the trigger: the person who declares the emergency decides whether the protections even switch on. That's what I meant by residue.

    Helpful · 3