Is Carl Schmitt’s “Exception” Feasible?

Keeping in mind the way in which world history has developed over the years, State sovereignty is an element which each State holds dearly. In the past, countries have defended acts of proclaiming war on others, and, invading territories, by stating that such acts were necessary for the protection of their sovereignty. Thus, in the international community of nations, it becomes important to see whether sovereignty stands vested in a single individual, for instance, a dictator such as Hitler, or is it held by a collective which is guided by the rule of law. The latter instance is one which is commonly found in present day democratic constitutions. Once that question is answered one must subsequently question the manner in which sovereignty is used to tackle an emergent situation. It is the argument of this paper that such exceptional situations can be dealt with by the sovereign within the established norms of particular Constitutions.

It has become commonplace that most of the Constitutions of the post-war period contain a set of provisions which restrict the scope of arbitrariness in the manner in which the executive functions. While such provisions exist, the key question that scholars like Carl Schmitt raise is whether these provisions, which generally bind the State in its ordinary working, are sufficient to guide the State in an emergent situation as well — are these statutory safeguards that are commonplace in a large number of Constitutions, sufficient to enable the State to promptly defend the rights of individuals at times of crises. Carl Schmitt, believes to the contrary he argues that it is impossible for a sovereign to only follow statutes to provide for every emergency. Hence, Schmitt believes that owing to the very nature of the situation, in the absence of any guidance, the State would have to resort to actions it deems fit to combat emergencies and such actions may not be in the best interest of the citizens of the State.

Carl Schmitt is of the opinion that it is the sovereign who alone “decides on the exception”.[1] Schmitt argues that an exception always exists and simply because there is a legitimate statute, it cannot be taken on face value that such a statute would suffice as a source of direction to combat the emergent situation. Schmitt further strengthens his argument by stating that in the aftermath of an exception, the legal order of the State is suspended and thus, it is only the State that remains in the complete absence of legal norms. Hence, it is his argument that such a situation proves that the State remains superior to legal norms. However, this supposition is based on the fact that the State stands superior to the law it enforces in almost all circumstances. By extension, this argument points to the fact that the head of the State himself is the sole authority in the State, that is, the sovereign and any application of law is purely for his convenience. This cannot be accepted. I am of the firm opinion that for the State to exist and its administration to be run, law has to exist, that is, the State must be administered on the basis of rule of law and not rule of an individual. It is thus pertinent to answer the question as to whether it is better to be ruled by the best man or the best laws.[2] The only way a State can exist without conflict is by the application of law and further, it can never be superior to law since the Government gets its legitimacy from the law itself. Compliance with the constitutional safeguards should always be of utmost importance.[3]

Moreover, Thomas Hobbes, refers to the social contract theory and states that owing to the state of nature, the reasonable man would enter into a contract with a particular individual who in turn would work to create a sustainable society in which all could live.[4] To this, I would further add that authority should not vest in an individual, rather, a group of individuals who would discuss and deliberate and hence would create law for the continuation of the contract. Hence, from this instance, it becomes clear that law is superior to the State, hence, it cannot be argued that the State exists without any law since that would mean complete violation of the social contract.

Schmitt further provides that the ultimate guidance a statute can provide is only that of stating who can exercise emergency powers. Based on the statutory guidance, the sovereign must search the best manner in which the threat can be eliminated. This argument put forward by Schmitt can be agreeable to the extent that the sovereign’s aim should be to minimise the threat of an emergent situation on the existence of the State. However, the manner in which he proposes to do so cannot be acceptable, particularly in the post-war world. Surprisingly, it is seen that both Hobbes as well as Carl Schmitt argue on similar lines, that is, removal of constraints, however, while Hobbes argues that all authority should be exercised by a single individual[5], the Schmittian argument states that all constraints particularly affecting the ability of the sovereign to respond to aggression must be relaxed.

Such an act would inevitably challenge international peace. The provisions of a statute cannot simply be relaxed on the grounds of administrative convenience since that would lead to blatant abuse of power. It appears that Schmitt preferred a dictatorship as against a liberal constitutional set-up. His support for Nazi Germany seems apparent from this argument. Interestingly, Schmitt questioned Article 48 of the Weimar Constitution[6] as to whether the provision was a valid one. One can agree with Schmitt that Article 48 indeed granted excessive rights to the President of the Reich to proclaim an emergency and insofar as sovereignty was concerned the reading of the article would lead to the conclusion that the Weimar Constitution recognised the President as the sovereign. What must be emphasised upon is the fact that the only check on the powers of the President, that is, the Reichstag, had to simply be informed of such a proclamation[7].

The wording of Article 48 led to it being grossly misused. One such instance of its misuse could be the manner in which Hitler became Chancellor. The provision invariably allowed the President of the Reich to rule as a dictator from time to time. It was this lacuna in the Constitution that allowed the President of the Reich to appoint Hitler as Chancellor at a time when the Reichstag could not appoint a Chancellor by consensus.[8] Thus, such a provision of the Weimar Constitution became one of the factors that led to the collapse of the Weimar Republic. A similar provision exists in the Indian Constitution. Article 352 of the Indian Constitution[9], provides for the procedure to be followed in the instance wherein the President is convinced that an emergency must be proclaimed. Checks were placed on the power of the President, as Article 352(3) specifically provided that the President can only proclaim an emergency based solely on the decision of the Union Cabinet. Further, a proclamation so issued is required to be mandatorily laid before Parliament which has the power to act as a check on the powers of the executive — Parliament has the right to approve the proclamation so passed.[10]

Comparing both the provisions, it can be said that there exists a strict check on the powers of the Indian executive insofar as a proclamation is concerned. Such a check was virtually absent in the corresponding provision in the Weimar Constitution. Hence this is a clear instance wherein a dilution of the provision led to blatant misuse. Thus, Schmitt’s insistence that all limitations on the authority of the sovereign to deal with emergencies be removed cannot be accepted.

The Schmittian challenge thus remains as to whether the sovereign, whoever it may be, can take adequate measures to suppress an emergency and at the same time remain faithful to the requirement of legality. To counter the challenge posed, most point towards the situation created in the aftermath of the terror attacks in America, particularly, 9/11. The attack even with a Schmittian understanding, can be considered an exception. Knowing the incidents that occurred, one can argue that the State was able to maintain relative calm in the time period immediately after the incident.

Some scholars such as Oren Gross while wholly disagreeing with Schmitt, do admit that there may be certain instances wherein public officials such as bureaucrats would have to look for solutions outside the law for a more efficient response. However, while admitting this fact, scholars who believe in the virtues of extra legal measures also state that the creation of ex-post political and legal checks would certainly deter officials from relying on those measures since in most cases, such extra-legal measures would be brought into statutes as amendments.[11]

Also, while answering the Schmittian challenge, it must also be emphasised that the judiciary also acts as a check on the powers of the sovereign. David Dyzenhaus emphasised on the role of the courts in preserving legality during an emergency. This intervention by the courts in purely administrative actions would seriously threaten the principle of separation of powers — nevertheless, suitable modifications can be made insofar as the creation of checks and balances is concerned. Further, in contemporary times, specialised courts such as Administrative Tribunals have been set up primarily to ensure that the executive does not act arbitrarily.[12]

In this regard, the Supreme Court of India has also ensured that actions of the executive such as a proclamation of emergency do not go unchecked. Hence, the Court stated that while it cannot question the adequacy of facts that led the executive to proclaim emergency, nevertheless, if the satisfaction of the President is deemed to have been on irrelevant grounds, then the Court has complete jurisdiction to examine the proclamation.[13] Likewise, the same set of guidelines have also been laid down by the Supreme Court of India for proclamations of emergency under Article 356 of the Constitution of India.[14]

It must be noted, however, that the abovementioned facts and possibilities can only work as long as these institutions are matured and have been functioning efficiently over a period of time. Victor Ramraj points to the fact that there is a clear difference in the ways in which developed nations act in exceptional circumstances as against newly formed States — Ramraj points to the fact that such emergent situations are experienced differently by different nations and further, there exists a clear difference between preserving legality and establishing legality.[15] Stating instances of the constitutional development of countries such as Malaysia and Thailand, he states that the Schmittian challenge must be further seen based on the constitutional development of nations. While in Thailand, the exception, that is the emergency, has outlived the norm, that is, the Constitution, Malaysia has developed under a perpetual state of emergency — the Malaysian example is a rather interesting instance wherein, even though the proclamation of emergency has not been lifted, there appears to exist an unwillingness to change the current scenario, since even under a proclamation of emergency, there continues to exist a rule of law state. Hence, one may only imagine Schmitt’s response to such a situation wherein the State itself was created in a state of emergency and further, that it has normalised such a situation —  preserving the legality.

In conclusion, while Schmitt’s theory of the exception and the handling of this exception by the sovereign would appear valid in the World War II scenario wherein sovereign nations were only just developing constitutional theories; his theories would be taken rather differently in contemporary times wherein a majority of the nations have entrenched legal provisions which guide the executive in dealing with any emergent situation. In the present day context, uncontrollable powers are not given to any individual, whether it be a head of State. All constitutional provisions necessarily provide for consultations insofar as decisions of national security are concerned — hence, the Schmittian argument in favour of dilution of controlling provisions would run contrary to the rule of law argument. Moreover, several scholars have contrasted Schmitt’s theory with modern day examples, such as those of 9/11. The exception so discussed by Schmitt could be possible in the wake of a non-existent judiciary and a shut legislature. However, in the present day scenario of a well-defined separation of powers with a functional system of checks and balances, legality can be preserved. Thus, while all arguments stand contradicted, the only argument that tends to support his arguments is the reaction of nascent constitutional orders to emergent situations surely, they would look beyond their constitutional systems to manage the crisis, however, as long as they are assisted by mature democracies, such regimes would not turn into dictatorships.


†  Fourth-Year student, 5-year BA LLB programme,  Jindal Global Law School, e-mail: 15jgls-aganguly@jgu.edu.in.

[1]  Carl Schmitt, Political Theology: Four chapters on the Concept of Sovereignty, edited by Thomas McCarthy, published by MIT press, p. 5.

[2] Aristotle, Politics, translated by Benjamin Jowett (1999), Book III, p. 75, available at (https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/aristotle/Politics.pdf).

[3]  Jeremy Waldron, Rule of Law, The Stanford Encyclopedia of Philosophy (Fall 2016 edition), Edward N. Zalta (ed.), last viewed on 19-1-2019 (https://plato.stanford.edu/cgi-bin/encyclopedia/archinfo.cgi?entry=rule-of-law).

[4]  Thomas Hobbes, Leviathan, or the Matter, Form, and Power of a Common-Wealth Ecclesiastical and Civil, published by the University of Adelaide, Ch. VI, last seen on 19-1-2019.

[5]  Thomas Hobbes, Leviathan, or the Matter, Form, and Power of a Common-Wealth Ecclesiastical and Civil, published by the University of Adelaide, last seen on 19-1-2019.

[6]  Weimar Constitution, 1919-1933.

[7]  Art. 48, Weimar Constitution, (1919-1933).

[8] Art. 48, United States Holocaust Memorial Museum, last seen on 19-1-2019, available at (https://www.ushmm.org/collections/ask-a-research-question/how-to-cite-museum-materials).

[9]  Art. 352, Constitution of India.

[10]  Art. 352(4), Constitution of India.

[11]  Victor V. Ramraj, Emergency Powers in Asia: Exploring the Limits of Legality, 2010, published by Cambridge University Press, pp. 25-26.

[12]  Id., p. 26.

[13]  Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, para 99.

[14]  S.R. Bommai v. Union of India, (1994) 3 SCC 1.

[15] Victor V. Ramraj, Emergency Powers in Asia: Exploring the Limits of Legality, 2010, published by Cambridge University Press, pp. 54-55.

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