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10 Can. J. L. & Jurisprudence 189 (1997)
Carl Schmitt on Sovereignty and Constituent Power

handle is hein.journals/caljp10 and id is 191 raw text is: Carl Schmitt on Sovereignty and Constituent Power Renato Cristi Schmitt's Verfasswgslehre stands as perhaps the most systematic and least cir- cumstantial of his works. While his production is marked, on the whole, by an extraordinary sensitivity toward his own concrete situation, leading at one point to an unbounded and shameless opportunism, this particular work seems to rise above the political fray, reflecting possibly the mood of 1928, which marks the hal- cyon days of the Weimar republic. Recently, Emst-Wolfgang Bdckenfirde has tried to shake off the Veifassungslehre from its composed academic bearing by relating its argument to the polemical friend/enemy theory developed by Schmitt in his Der Begriffdes Politischen (1927) and Schmitt's characterization of the state as the polit- ical unity of a nation. Beyond this, Bickenfdrde has connected the Verfassungslehre to the eminently partisan notion of sovereignty put forth by Schmitt in his Poltische Theologie (1922), where he flaunts his allegiance to the Catholic counterrevolution. One of the arguments presented by Bckenfdrde in support of his thesis has Schmitt's definition of sovereignty and the state as its locus. According to Schmitt's Politische Theologie, the state has the monopoly of the ultimate decision. This means that the essence of sovereignty, which he defines not as the monopoly of domination or coercion, but as the monopoly of decision,- is the ability to lift its subject above the legally constituted order. The decision Schmitt has in mind is an absolute decision, a decision created out of nothingness.' The whole system of legality is thus relativized by a power that stands outside and above it. I do not wish to dispute B6ckenfdrde's contention that sovereignty is the key notion of Schmitt's conception of public law. My concern is that an important shift marks Schmitt's work during these years, a shift that determines a difference between the conception of sovereignty he held in 1922 and the one he held in 1928 when he published Verfassungslehre. In another place I have examined this shift with respect to the notions of liberalism and democracy.4 Here I would like to extend my thesis to this aspect of Schmitt's work. The first section of this essay examines the uninhibited view of sovereignty Schmitt develops in his Politische Theologie, a view which identifies it with the monarchical principle. In the second section, I compare this radical view to the 1. Carl Schmitt, Politische Theologie Vier Kapitel zur Lehre von der Sourerdnitift (Munich & Leipzig: Duncker & Humblot, 1922) at 20. 2. bidk at 20. See Ernst-Wolfgang Bfckenfirde, Der Begriff des Politischen als SchlUssel zum Staatsrechtlichen Werk Carl Schmitts in Helmut Quaritsch. ed., Complexio Oppositonm. Ober Carl Sclmitt (Berlin: Duncker & Humblot, 1988) at 287. 3. bid. at 83. See Carl Schmitt, Die Diktaur ion den Anfdngen des modernen Soureranitiits- gedankens bis zmproletarischen Klassenkampf (Munich & Leipzig: Duancker & Humblot. 1928) at 23. 4. See Renato Cristi, Carl Schmitt on Liberalism. Democracy and Catholicism (1993) 14 Hist. of Pol. Thought 281 at 282-300. Canadian Journal of Law and Jurisprudence Vol. X, No.1 (January 1997)

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