Carl Schmitt's Political Theory of Representation
Author(s): Duncan Kelly
Source: Journal of the History of Ideas, Vol. 65, No. 1 (Jan., 2004), pp. 113-134
Published by: University of Pennsylvania Press
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Carl
Schmitt's
Political
of
Theory
Representation
Duncan Kelly
I. Political Representation
"Representation means the making present of something that is nevertheless
not literally present."' This definition, provided by Hanna Pitkin in her celebrated
book on the subject, contrasts strongly with most modem discussions of political representation which regularly delimit their focus to technical questions of
election and accountability.2 Even theorists who see in representative government the classical virtues of a necessarily "chastened" (public) authority rely on
impoverished notions of political representation in the sense of the definition
outlined above.3 As Pitkin herself suggested, political representation explores
the way in which "the people (or a constituency) are present in governmental
action, even though they do not literally act for themselves."4 This paper examines Carl Schmitt's "solution" to this quandary of political representation, which
suggests that representation can bring about the political unity of the state, but
only if the state itself is properly "represented" by the figure or person of the
sovereign.5
Hanna Pitkin, The Concept of Representation (Berkeley, 1967), 144.
2
Cf. BernardManin, Adam Przeworski and Susan Stokes (eds.), Democracy, Accountability and Representation(Cambridge,1999); Albert Weale, "Representation,Individualism
and Collectivism,"Ethics, 91 (1981), 457-65; David Plotke, "Representationis Democracy,"
Constellations,4 (1999), 19-34.
3 George Kateb, The Inner Ocean (Ithaca, 1992), 36-56; cf. Nadia Urbinati,
"Representation as Advocacy," Political Theory,28 (2000), 758-86.
4 Pitkin, Concept of Representation,221f; cf. EdmundBurke,
"Speech to the Electors of
Bristol"(1774), OnEmpire,Libertyand Reform,ed. David Bromwich(New Haven, 2000), 54f.
5 Carl
Schmitt, Verfassungslehre(Berlin, [1928] 19938), 90; Carl Schmitt, The Conceptof
the Political [1932 ed.], trans. George Schwab (Chicago, [1927] 1996), 19.
113
Copyright2004 by Journalof the Historyof Ideas,Inc.
114
Duncan Kelly
In assessing and explaining the centrality of representation to Schmitt's
political thought-an area often excluded from discussion6-I focus upon his
attempted reconciliation of a starkly "personalist" and then Hobbesian account
of representation that would justify support for the Reichsprasident under the
Weimar Republic, with insights drawn from the constitutional republicanism of
the Abbe Sieyes that placed the constituent power of the people at the basis of
representative democracy. The argument develops and modifies Bockenfdrde's
hypothesis, that Schmitt's well-known concept of the political-first presented
in a lecture of 1927-provides the "key" to understanding his more substantial
constitutional theory, Verfassungslehre, published the following year.7 Instead,
Schmitt's concept of representation provides the key with which to understand
his densely structured constitutional argumentation.8 Therefore, after outlining
the early theological and personalist roots of Schmitt's account of representation
in order to show his long-standing concern with the issue, the central arguments
of Sieyes and Hobbes concerning representation are next outlined, and their
impact on Schmitt's political and constitutional theory discussed.9 Such a structure places in sharp relief the political implications of his ideological appropriation of the language of modern representative democracy in order to justify support for the presidential leader.
II. Capitalism, Rationality, and Representation:
The Figure of the Representative
In his 1923 essay "Roman Catholicism and Political Form," Schmitt claimed
that the technical-economic rationality of moder capitalism and its dominant
political expression, liberalism, stood at odds with the truly political power of
6 But see Renato
Cristi, Carl Schmitt and AuthoritarianLiberalism (Cardiff, 1998), 81,
10ff, 116-25, 133, 135f; John P. McCormick, Carl Schmitt's Critique of Liberalism (Cambridge, 1997), esp. ch. 4; PasqualePasquino,"PouvoirConstituantbei Sieyes und Schmitt,"in
H. Quaritsch(ed.), ComplexioOppositorum(Berlin, 1985), 371-85; Stefan Breuer,"Nationalstaat und Pouvoir Constituant bei Schmitt und Sieyes," Archiv fur Rechts- und Sozialphilosophie, 70 (1984), 495-517. In the text, Sieyes is spelled without an accent, following the
notes on orthographyoutlined by A. Mathiez, "L'orthographedu nom Sieyes," Annales
historiquesde la RevolutionFrancaise, 2 (1925), 487.
7 Erst-Wolfgang Bockenf6rde,"TheConceptof the Political:A Key to UnderstandingCarl
Schmitt's ConstitutionalTheory" (1986), in D. Dyzenhaus (ed.), Law as Politics (Durham,
1998), 37-55.
8Ibid., 49ff; cf. Ellen Kennedy,"Hostisnot Inimicus:Towardsa Theoryof the Public in the
Workof CarlSchmitt,"CanadianJournal ofLaw and Jurisprudence,10 (1997), 35-47, esp. 4447
9
Quentin Skinner, "Hobbes and the Purely Artificial Person of the State,"Journal of
Political Philosophy, 7 (1999), 1-29; David Runciman, "What Kind of Person is Hobbes's
State? A Reply to Skinner,"Journal of Political Philosophy, 8 (2000), 268-78, are excellent
recent discussions of this difficult aspect of Hobbes's thought.
Carl Schmitt
115
the CatholicChurch.'0Schmittwas concernedto illuminatethe particularly"representative"characterof the Catholic Churchas a complexio oppositorum,in
contradistinctionto its typicalappearanceas the unworldly"other"to an ascetic
andindustriousProtestantism,so as to counterthe "anti-Romantemperthathas
nourishedthe struggleagainstpopery,Jesuitismand clericalismwith a host of
religiousandpoliticalforces,thathas impelledEuropeanhistoryfor centuries.""
Even the "parliamentaryand democraticnineteenthcentury"was an era
where Catholicismwas definedas "nothingmorethana limitlessopportunism."
It was Schmitt'scontention,however,thatthis missed the fundamentalpoint of
such a complex of opposites, which was that the "formalcharacterof Roman
Catholicismis based on the strictrealisationof the principleof representation.
In its particularitythis becomes most clear in its antithesisto the economictechnicalthinkingdominanttoday."12Schmittcontendedthat somethingpeculiar to Catholicrepresentationallowed it to "makepresent"the true essence of
it. Moreover,because"theidea of representationis
somethingby "representing"
so completelygovernedby conceptionsof personalauthoritythatthe representative as well as the personrepresentedmust maintaina personaldignity-it is
not a materialistconcept.To representin an eminentsense can only be done by
a person ... an authoritativeperson or an idea which, if represented,also becomes personified.""3
Thus, althoughthe Catholic Churchhad cordialrelationshipswith a wide
rangeof particularadministrations,andthoughit is even superficiallyattractive
to "irrationalist"
thought,it possesses its own "logic."It "is based on a particular mode of thinking whose method of proof is a specific juridical logic and
whose focus of interestis the normativeguidanceof humansocial life."14The
CatholicChurchhas its own rationality,one at odds not with particularregimes,
but ratherwith the overwhelmingeconomic rationalityof moderncapitalism.'5
Indeed,"in sharpcontrastto this absoluteeconomic materiality,Catholicismis
eminentlypolitical."'6In an argumentthat bore heavily on his wider thinking
about the natureof the law and the limits to contemporarylegal formalism,
Schmitteven suggested thatthe Churchwas the "trueheir of Romanjurispru-
10
Gary L. Ulmen, "Introduction,"Carl Schmitt, Roman Catholicismand Political Form
[rev. 1925 ed.], trans. G. L. Ulmen (Westport, Conn., [1923] 1996), xix; cf. Gary Ulmen,
"Politische theologie und Politische Okonomie,"in Quaritsch(ed.), Complexio Oppositorum,
350-60.
" Schmitt,Roman Catholicism,3.
12
Ibid., 4, 8.
Ibid., 21, 17.
14 Schmitt, Roman
Catholicism, 12.
13
15Ibid., 24; cf. Schmitt, Concept of the Political, 41-42, n. 17.
16
Schmitt,Roman Catholicism, 16.
116
Duncan Kelly
dence,"concernedwith a higherpurposethansimply the maintenanceof legality.17
The historicaldevelopmentof liberalism,thoughtSchmitt,showed an unawareness of the personalistcharacterof political representation.18
Schmitt's
of
that
therefore
the
earlyconception representation
suggested
specific rationality of the CatholicChurch,as a complexiooppositorum,"restson the absolute
realisationof authority"buttressedby a "powerto assumethis or any otherform
only because it has the power of representation."'9
Additionally,this power of
finds
its
locus
in
a
form
of
representation
particular
personalauthority,an authoritythatimplies connotationsof dignity andvalue. His accountclearly links
backto earliertheoriesof representationandthe "twobodies"of the sovereign,20
which underpinnedhis argumentthat "all significant concepts of the modern
theoryof the stateare secularizedtheological concepts."21
Correlatively,Schmittsuggestedthat such substantiveor "eminent"representation"canonly proceedin the public sphere,"the spherewherethe locus of
sovereignty lies.22The suggestion also built on his belief that the currentpredominance of technical-economic capitalist thinking was premised upon a
"privatization"of individualaction.The first instanceof this privatizationconcernedindividualreligiousbelief. ForSchmitt,the interdependenceof liberalism
andthe moder state-born out of the Reformationand disputesover religious
toleration-corresponds with the rise of somethingapproachingthe theory of
Schmittcoun"possessiveindividualism"latermade famousby MacPherson.23
teredthat"thejuridicalfoundationof the CatholicChurchin the public sphere,
contrastedwith liberalism'sfoundationon the privatesphere."24
Furthermore,
this was elaboratedon in his suggestion that it was Protestantismand early
variantsof Calvinist resistance theory, which had in fact broughtabout such
developments,robbingpolitics of its properlyrepresentativecharacter:
17 Schmitt, Roman
Catholicism, 18. See also Carl Schmitt, Legalitdt und Legitimitit
(1932), repr.in his VerfassungsrechtlicheAufsdtzeaus den Jahren 1924-1954 (Berlin, 19583),
263-350.
18Ibid. See also Carl Schmitt,"TheAge of Neutralizationsand Depoloticizations"[1929],
trans.J. P. McCormickand M. Konzett, Telos, 96 (1993), 131: "The anti-religionoftechnicity
has been put into practice on Russian soil." See also 131-35, for a precis of his general theory
of history.
19See Schmitt,Roman Catholicism, 18-19; Verfassungslehre,208-12. See also Kennedy,
"Hostis not Inimicus,"passim.
20ErnstKantorowicz,TheKing's Two Bodies (Princeton[1957], 1997), 192f, 207-32; cf.
Francis Oakley, "NaturalLaw, the CorpusMysticum,and Consent in ConciliarThought from
John of Paris to MatthiasUgonis," Speculum(1981), 786-810.
21 Carl Schmitt,Political
Theology(1932 ed.), trans.George Schwab (Cambridge,Mass.,
[1922] 1985), 37. Emphasis added.
22
Schmitt, Verfassungslehre,208.
23 See James
Tully, "Afterthe MacPhersonthesis," in his Approachesto Political Philosophy: Locke in Contexts(Cambridge,1993), 71-95.
24
Schmitt, Roman Catholicism,29.
CarlSchmitt
117
The Churchcommandsrecognitionas the Brideof Christ[thepope was
it representsChristreigning,rulingandconquering.Its claim
its Vicar25];
to prestigeandhonorrests on the eminentidea of representation.26
As such, McCormickobserves,Weber'sargument"foreshadowsthe Schmittian
thesis,"where"Catholicismhas to the presentday lookedupon Calvinismas its
real opponent."27But the connectionis perhapseven closer. For althoughboth
Weberand Schmittcould be said to agree thatthe rise of a particular"type"of
Berufsmenschwas the result, in part, of the so-called Protestant"ethic,"both
diagnosed the largely negative "unintendedconsequences"of its promotion.
Schmitt,however, actuallytracedthe contemporarydepoliticizedperiodto the
Whenappliedto the "distortions"of contemporary
influenceof Protestantism.28
he
representativegovernment, suggestedthat:
The simple meaningof the principleof representationis thatthe membersof Parliamentarerepresentativesof the whole people andthushave
an independentauthorityvis-a-vis the voters. Insteadof derivingtheir
authorityfrom the individualvoter,they continueto derive it from the
people. "The memberof Parliamentis not bound by instructionsand
commandsand is answerableto his conscience alone".This meansthat
the personificationof the people and the unity of Parliamentas their
representativeat least implies the idea of a complexiooppositorum,that
is, the unity of the pluralityof interestsand parties.It is conceived in
representativeratherthaneconomic terms.29
Contemporaryparliamentarism,based on delegaterepresentationby partycandidates,illustrated-at leaston Schmitt'spresentation30-amovementawayfrom
properlypoliticalrepresentation.It did so by negatingits necessarilypersonalor
eminent character,and Schmittclaimed that the transformationof the modem
stateinto a "Leviathan"meantthatit hadactuallycome to symbolizea body that
"disappearsfrom the world of representations."This is because the theatrical
HobbesianLeviathan,which held the populationin awe, had been transformed
Schmitt, Roman Catholicism, 14.
Schmitt, Roman Catholicism,31, 32.
27
See Schmitt,Roman Catholicism, 10; McCormick,Schmitt'sCritiqueof Liberalism,93,
note 31; Max Weber, The Protestant Ethic and the "Spirit"of Capitalism [1904-5] trans. T.
Parsons (London, 1994), 87.
28 Schmitt, "Age of Neutralizations,"135; Ellen
Kennedy, "Introduction:Carl Schmitt's
Parlamentarismusin Its Historical Context,"in Schmitt, ParliamentaryDemocracy, xxxix.
29
Schmitt, Roman Catholicism,26.
30Cf. Bernard
Manin, The Principles of RepresentativeGovernment(Cambridge,1997).
25
26
118
Duncan Kelly
by liberalism and capitalisminto a simple machine.31 As he suggested in the
Verfassungslehre:
Torepresentmeansto makevisible andpresentaninvisibleentitythrough
an entitywhich is publiclypresent... This is not possible with any arbitraryentity,since a particularkind of being [Sein] is assumed.32
Liberalismsought "to eliminatethis remnant[the idea of parliamentaryrepresentationas a complexiooppositorum]of an age devoid of economic thinking."
Instead,parliamentarismsimply "emphasisesthatparliamentarydelegates are
only emissaries and agents."Here, the " 'whole' of the people is only an idea;
the whole of the economic process, a materialreality."33
For Schmitt,this was
of
the
at
and
claims
these
were furtherexentirely wrong way looking things,
plored in his vastly more famous work on the historical-intellectualplight of
There, Schmitt'sargumentsuggestedthatthis downgrading
parliamentarism.34
of the centralrole of popularwill stood at odds with the generalprinciplesof
popularsovereignty,andthattechnical-economiccapitalistrationalityhadradically distortedthe properfocus of representativegovernment.Indeed,he argued
thatcontemporary
wouldactuallyhaveto be representation
representation
against
To understandhow such a positioncould be theoreticallyjustified,
Parliament.35
though,in orderto supporta sovereignrepresentativefigure,an accountof how
the people couldbe properlyrepresentedundera modem democraticstatebased
on popularwill was required.And Schmittdevelopedsuchajustificationthrough
an interpretationof the writingsof the Abbe Sieyes.36
III. Representation,pouvoir constituantand the Positive Constitution:
The Abbe Sieyes
At the beginning of his extraordinarywork on the subject of constituent
power (pouvoirconstituant,VerfassunggebendeGewalt)andthe FrenchRevolution, Egon Zweig suggested that the debate over the origins of the concept
31 ChristopherPye, "The Sovereign, the Theater,and the Kingdome of Darknesse:Hobbes
and the Spectacle of Power," Representations, 8 (1984), 91, explicitly discusses Hobbes's
"theatrical"notion of representation.This relates to Schmitt's critiqueof political pluralismas
well. See Schmitt, Verfassungslehre,209; Carl Schmitt,"Staatsethikund pluralistischerStaat,"
Kant-Studien,35 (1930), 28-42.
32
Schmitt, Verfassungslehre,209.
33 Schmitt, Roman Catholicism,26-27, emphasis added.
34 Carl Schmitt, The Crisis
of ParliamentaryDemocracy [1926 Ed.], trans.Ellen Kennedy
(Cambridge,Mass., [1923] 1985).
35Schmitt, Verfassungslehre,314f.
36 See JohnP. McCormick,"Fear,
Technology andthe State:CarlSchmitt,Leo Straussand
the Revival of Hobbes in WeimarandNational Socialist Germany,"Political Theory,22 (1994),
626, 644-45.
Carl Schmitt
119
need not be confined to the age of the American and FrenchRevolutions. Its
beginningscould be tracedback to the works of Plato andAristotleand for one
very specific reason;pouvoir constituantpresupposesa distinctionbetween an
originaland foundationalconceptionof"law" (Grundgesetz),and everydaylegal ordinancesand rules (Gesetz).37This foundationalconception of law or a
legal orderis to be understoodas a constitution(Verfassung).Clearly,the particular body or subject that possesses "constituentpower" is of considerable
importanceto his analysis,andZweig was especially interestedin the impactof
a conceptionof"reason"wroughtfromEnlightenmentprinciplesin general,and
the FrenchRevolutionin particular,on modem discussionsof constituentpower.
CarlSchmitt,too, was considerablyexercizedby the impactof the FrenchRevolution, but it is this formulationof a split between a positive "constitution"on
the one hand,andconstitutionallaw on the other,thatbest representsthe fundamental basis of his constitutionalthought.It is a distinctionthat has considerable implicationsfor his accountof representationbecause:
... the distinctionbetween the "writtenandunwrittenconstitution"is in
truththe opposition of the constitution(in its positive sense) and the
constitutionallaw which is based on it.38
The distinctionsuggestedheremirrorsalmostexactlythe discussionof the Abbe
Sieyes, who wrotethatthe "constitutionis not the workof the constitutedpower,
but of the constituentpower,"which for Sieyes was the nation.39Sieyes's formulations of the interrelationshipbetween the nation and constituentpower had a
profoundimpact on Schmitt'sdiscussion in his Verfassungslehre,providing a
detailedtheoreticalancestryto those practicalargumentsaboutthe natureof the
Weimarstate.However,most historicalandpolitical discussions of constituent
power have tendedto examine the split between putativenotions of an "ancestral"or "ancient"constitutionon the one hand,anda "real"or writtendocument
on the other.Relevant examples of such thinkingcan be found in the political
thoughtof the post-SolonianGreeks,duringthe greatupheavalsin seventeenthcenturyEngland,and in the acerbicand quasi-Sieyesiancommentsof Thomas
Paine in TheRights of Man, to note three exemplaryconstitutionalmoments.40
For Schmitt,the dichotomywas more fundamentalthanthis.41
37 Egon Zweig, Die
Lehre vom Pouvoir Constituant(Tiibingen, 1904), 9.
Schmitt, Verfassungslehre,386.
39EmmanuelSieyes, Qu'est-ce que le TiersEjtat?ed. R. Zapperi(Geneva, [1789] 1971),
180f.
40 Cf. Ernest Barker, Greek Political Theory (London, 1918), 51ff; J. G. A. Pocock, The
Ancient Constitutionand the Feudal Law (Cambridge, 1987); Janelle Greenberg,The Radical
Face of the Ancient Constitution(Cambridge,2000); Thomas Paine, TheRights of Man, in M.
Foot and I. Kramnick(eds.), The ThomasPaine Reader (London, 1987), 285-307.
41 Erst-Rudolf Huber,"Verfassungund
Verfassungswirklichkeitbei Carl Schmitt,"in his
Bewahrung und Wandlung(Berlin, 1972), 19.
38
120
Duncan Kelly
The "positive"constitutionis pureconstituentpower, and Schmittdefined
"constituentpower" simply as "politicalwill." In practice, he continued, the
power or authorityto take the "concreteand complete decision [Gesamtentscheidung]"concerningthe "type and form [ArtundForm]"of political existence is an expression of such "politicalwill." "Politicalwill" thereforedetermines the natureandformof the constitutionunderstoodin its "positive"sense.
Moreover,"politicalwill" or constituentpower cannotbe justified by recourse
to abstractor normativearguments.Rather,properlyunderstoodit signifies the
essentially"existential"groundon which the validityof any constitutionnecessarily rests.42
Schmitt'scompresseddiscussions of the FrenchRevolution focused on its
impacton bothpositive-lawthinkingaboutthe constitution,andon the idea of a
convergence-in fact of a congruence-between the people andthe nation,the
resultof which was a "nationaldemocracy."43
Accordingto Schmitt,the moder
mixed constitution,with its liberaland democraticelements was bornwith the
French Revolution. So too was the idea that the people are the "bearers"of
constituentpower,who can "act"with a self-conscious political unity through
the mediumof the nation-state.By the conceptof the "nation,"wrote Schmitt,is
understoodan "individualpeoplecharacterisedby its specificpoliticalconsciousness."44The moder nationgives formto the people, andhence theirconstituent
power,for the Volkareotherwiseunderstoodin democratictheoryas an unorganized "mass" or Hobbesian multitude, capable of making only "yes or no"
acclamatorypoliticaldecisions.45Directlyrelatedto the earlierdiscussionof the
necessity of the publicspherefor an adequateaccountof representation,Schmitt
claimed that "thepeople is a concept that only exists in the public sphere."In
fact, "the people appearsonly in a public, indeed, it first producesthe public.
The people anda public areestablishedtogether."46
And developingthese ideas
even further,every (Jede) constitution,wrote Schmitt,necessarilypresupposes
the unity andindivisibilityof the constituentpower thatformsit, andafter 1789
this unityhas typicallybeen presentedas stemmingfroma people unifiedwithin
a nation-state.7The equationcontinuesto formthe basis of most contemporary
assumptionsaboutpopularsovereignty,nationalism,andthe constituentpower
of the people.48Schmitt'sassessmentwas thatundera modem democraticconstitutionor state,therewere threepossible ways of conceiving the relationship
between the people and the constitution.First,the people could exist "priorto"
42
Schmitt, Verfassungslehre,75f.
43 Ibid., 231.
Ibid., emphasis added.
Ibid., 277, 251.
46 Schmitt,
Verfassungslehre,243; cf. Kennedy, "Hostis not Inimicus,"46.
47 Schmitt,
Verfassungslehre,49ff.
48 See BernardYack, "PopularSovereigntyand Nationalism,"Political
Theory,29 (2001),
44
45
524.
Carl Schmitt
121
and"above"the constitutionas pureconstituentpower.Second,they could exist
"within"the constitutionas membersof an electorate,or third,the people could
occupy a space "beside"the constitutionas bearersof constituentpower acting
momentsof spontaneousformsof popularmobilization"within
out"intermediary
the normalpolitical order.49
These interrelationshipscorrespondwith and furtherdevelop Schmitt'sargumentthattherearein fact only two "principles"of politicalform-identity, or
representation-andthatdifferentstateformsbroadlycorrespondto one or other
of them.50Thus,identitypresupposesthe "unmediated"unity of a people. Representation,on the otherhand,assumes that althoughevery state form presupposes a structural"identity"betweenrulersandruled,such identitycan neverbe
fully realizedin practice.Similarly,because therecould never be a "pure"system of representation,the state can only be understoodas a political unity because it "originated[beruhen]fromthe interrelationshipof these two opposing
formalprinciples."51
Elaboratingon this thesis, Schmittwrote that:
The state rests, as a political unity, on the combinationof [these] two
opposed transformativeprinciples [Gestaltungsprinzipien]-the principle of identity(namelythe presenceof a people conscious of itself as
a political unity, [a people] thathas the ability,because of the power of
its own politicalconsciousnessandnationalwill, to distinguishbetween
friendandfoe)-and the principleof representation,the powerof which
is constitutedas political unity by the government.52
Representationcan "bringaboutpolitical unity as a whole," because the power
of representationapplies here only to the body which governs (wer regiert).53
This relationshipbetween governingauthorityandthe power of representation
was based on Schmitt's prior assumptionthat representation"belongs to the
Thus,througha
sphereof the political and is thereforesomethingexistential."54
secularizationof the principleof representation,Schmittlinkedthe necessarily
substantivecriteriaof meaningfulrepresentationoutlinedin the previoussection
to the modem state and the sphere of the political. Correspondingly,he also
suggestedthatthereare, in fact, two principal"subjects"of constituentpower;
either a monarch(whose power stemmed,originally,from God) or the people
49 Schmitt, Verfassungslehre,238-52. Cf. AndreasKalyvas, "CarlSchmitt and The Three
Moments of Democracy,"CardozoLaw Review, 21 (2000), 1530f, Wilfried, Nippel, "Ancient
and modem republicanism:'mixed constitution'and 'ephors',"in B. Fontana(ed.), TheInvention of the Modern Republic (Cambridge,1994), 24-25.
50 Schmitt, Verfassungslehre,204-8.
51
Ibid., 214.
Ibid., parenthesesmine.
53Ibid., 205; cf. 212.
54Ibid., 211.
52
Duncan Kelly
122
(unifiedthroughthe nation).This relatesto two mainprinciplesof constitutional
Thus,when a monarchis the subject
legitimacy,eitherdynasticor democratic.55
of constituentpower,the "constitution"emanatesfromhis "fullnessof power,"
in the languageof medievalpoliticaltheologywhich Schmittlikedto employ.By
contrast,if the people arethe subjectof constituentpower,the decision over the
natureandformof political existence is determinedsolely by their(free) political will. The centralconsequence of the FrenchRevolution, therefore,was to
enshrinedemocracyas the guidingpoliticalprincipleof the modem erawithina
system of nation states-national sovereignty.Thus, "it belongs to the essence
of democracythat every and all decisions which are taken are only valid for
thosewho themselvesdecide.Thatthe outvotedminoritymustbe ignoredin this
only causes theoreticaland superficialdifficulties."56
Schmittcited Rousseauto supporthis interpretationof the bindingcharacterof the volontegenerale, andit is crucialto his argumentationthatdemocracy
ultimatelydependsuponthe "identity"of rulersandruled,although"thishomogeneity need not necessarilybe racialor ethnicin origin.In fact, the "substance
of [democratic]equality[Gleichheit]can in differentdemocracies,andat different times, itself be different."57
Nevertheless,understandingthe nationas a poconscious
and
unified
litically
people certainlyprovidesthe main"substance"of
democratichomogeneityto be found in Schmitt'swritings.This more abstract
concept of the nation in Schmitt's thought built upon the work of the Abbe
Sieyes.
Discussing Sieyes's particularunderstandingof the relationshipbetween
the nationand constituentpower, PasqualePasquinoquotes from a fascinating
archivetext of a draftreview,by Sieyes, of his own famouspamphlet,Qu'est-ce
que le tiers etat?, that he planned to send anonymouslyto the press. This is
Sieyes's summaryof his position:
... what we must call a constitutionis by no means an attributeof the
nation,butbelongsto its governmentalone.It is the government,not the
nation which is constituted... I see too that the constitutedpower and
the constituentpowercannotbe confused.Consequentlythe body of the
ordinaryrepresentativesof the people, that is to say those who are entrustedwith ordinarylegislation, cannotwithout contradictionand absurdityinterferewith the constitution.5
55 Schmitt, Verfassungslehre,77ff,
87-90, cf. 81ff.
Schmitt, ParliamentaryDemocracy, 25.
57 Schmitt, Verfassungslehre,228; cf. McCormick,Schmitt's Critiqueof Liberalism, 187,
n. 35; Peter Caldwell, Popular Sovereignty and the Crisis of German ConstitutionalLaw
(Durham,N.C., 1997), 102.
58 EmmanuelSieyes, "Compterendude Qu 'est-ce que le Tiers Etat? (1789)," in Pasquale
Pasquino,Sieyes et l'invention de la constitutionen France (Paris, 1998), 167-70.
56
Carl Schmitt
123
Basedprincipallyon his studiesin politicaleconomy,Sieyes sharplydistinguished
modem, commercialsociety from the society of the ancients.59Such a distinctionprovidedthejustificationfor his "politico-constitutional"
assessmentof representation.Sieyes stressedthe elementaryincomparabilityand historicaldiscontinuitybetween the ancientsand the modems, outliningthe vastly different
"elements"(contenu)of modernity,suchas the growthof commerce,agriculture
and the rise of Europeanstates. He suggested that moder concerns with productionandconsumption,underpinnedby the divisionof labor,were fundamentally at odds with the ancients'conception of the "good life."60Yet, as Sewell
asserts,therewas a correspondencebetween Sieyes's accountof the division of
labor in the spheres of both "civil society" and the state. In the former,the
"establishmentof representativelabor"is the basis of "the naturalincrease of
liberty in society." In the strictly political sphere Sieyes pointed out that "for
those who consult reason ratherthan books ... there can only be one form of
legitimategovernment.It can manifestitself in two differentforms,"and these
differenttypes stronglyresemblewhat Schmittcalled the twin principlesof political form.61The people can eithergovernthemselves in a state approachinga
democratiebrute,or,based on the commonadvantagesprovidedby the division
of labor,they can submit to a representativeconstitution,to professionalized
andautonomousgovernment.Moreover,given the naturalprogression(andbenefits) of the division of labor, Sieyes thoughtthat "even in the smallest state"
pure democracyis "farless appropriateto the needs of society, far less conducive to the objects of political union."62
Sieyes presagedmoder argumentsabouta "politicalclass,"whilstbuilding
on Hobbes's desire to constructa new and "rational"account of political science, able to explain the "artifice"of political rule.63His idea of representative
governmentas a mediatingelementbetweenmass-democracyandpoliticalrule
conservedthe distancebetween governorsand governedin a moderncommercial society, whilst the avowed goal of the "social state"or etat social was to
promoteindividuallibertythrougha political division of labor.64However, although he was clearly interestedin the representationof the people, Sieyes's
59See Marcel Dorigny, "La Formationde la Pensee lconomique de Sieyes d'apres ses
Manuscrits(1770-1789)," Annales historiques de la RevolutionFrancaise, 60 (1988), 29-31.
60
Pasquale Pasquino, "EmmanuelSieyes, Benjamin Constantet le <<gouvemement des
modemes>>. Contributiona l'histoire du concept de representationpolitique,"Revuefrancaise
de science politique, 37 (1987), 219-20, 222-23; MurrayForsyth,Reason and Revolution:The
PoliticalThoughtof theAbbeSieyes(New York,1987),138.
61
EmmanuelSieyes, quoted by William H. Sewell, A Rhetoric of Bourgeois Revolution:
TheAbbeSieyesand Whatis the ThirdEstate?(Durham,N.C., 1994),90f.
62
Ibid.
Forsyth,Reason and Revolution,66f; also Antony Black, "TheJuristicOriginsof Social
ContractTheory,"History of Political Thought,14 (1993), 57-76.
64Emmanuel Sieyes, "Bases de l'Ordre Social" (1794/95), repr. in Pasquino, Sieyes et
l'invention, esp. 185; Forsyth,Reason and Revolution,60-63, 142f.
63
124
Duncan Kelly
argumentsdeveloped-in specific contrastto Rousseau'sdiscussionof the "generalwill"-a focus on commoninterest.65
Dependentupon a specific conception
of the nation and the "natural"effects of the division of labor, Sieyes's argumentscan be locatedwithinthe contextof a long-runningdebateaboutnoblesse
commerqanteandthe relationshipbetween"civic virtue"andthe nobilitybegun
in pre-RevolutionaryFrance.66
These debatescontinuedafterthe Revolutionwith a transformationin the
popularimageryof the ThirdEstatethat illustratedits restorativemission and
its oppositionto a weak King and parasiticnobility.67From its miserableposition underthe ancien regime, Sieyes sought to reconstitutea fragmentedbody
politic throughthe constituentpower of the nation.Utilizing both religious and
technicalimagerySieyes effected a theoreticaltransferralof"the miracleof the
body of the King,"to "the elective permanenceof the body of the represented
nation."68This was underpinnedby his foundational discussion of pouvoir
constituant.
Sieyes distinguishedbetweenpouvoirconstituant,pouvoir commettant,and
pouvoir constitue,the latterreferringto the regularactivitiesundertakenby the
ordinaryrepresentativesof the people based on law. The function of pouvoir
constitue,in particularits legislativeandexecutiveelements,involves the preparation(confection)of law. Pouvoir commettantandpouvoir constituant"putin
place the ensembleof rules(the Constitution)which governthe politicalfoundations [ 'etablissement]of the nation (its government,in the pre-Rousseauean
sense of the term), and ... guarantee,by a mechanism of authorisation,"the
legitimationof, andobligationsto, the constitutedpower.69Pouvoir constituant
concernsthe foundationandlegitimacyof the law andconstitution,whilepouvoir
commettantis the power possessed solely by the "people,"as an active citizen
body,over theirrepresentativesat the level of the government.It is the authorizing power of the whole citizen body to select theirrepresentatives.Of the three
forms of power, constitue and commettanttypically refer to the ordinary,nor-
65
Colette Clavreul,"Sieyes et la genese de la representationmodeme," Droits, 6 (1986),
47.
66
Pasquino,Sieyes et l'inventionde la constitution,45; Jay M. Smith, "Social Categories,
the Languageof Patriotismand the Originsof the FrenchRevolution:The Debate over noblesse
commercante,"Journal of ModernHistory, 72 (2000), 339-74, esp. 357ff; RichardWhatmore,
Republicanismand the French Revolution(Oxford, 2000).
67 On the imagery, Antoine de Baecque, The Body Politic: CorporealMetaphor in RevolutionaryFrance, 1770-1800, trans. CharlotteMandell (Stanford[1993], 1997) is superb. See
also ChristopherHodson," 'In Praise of the ThirdEstate':Religious and Social Imageryin the
EarlyFrenchRevolution,"Eighteenth-CenturyStudies,34 (2001), 337-62; Antoine de Baecque,
"TheCitizen in Caricature:Past andPresent,"in R. Waldinger,P. Dawson, andI. Woloch (eds.),
The French Revolutionand the Meaning of Citizenship(Westport,Conn., 1993), esp. 66.
68de Baecque, The Body Politic, 101.
69
Pasquino, "Sieyes, Constant,"225.
Carl Schmitt
125
mal legal order. Pouvoir constituant, however, only appears in the exceptional
or extraordinary situation, either in the formation of the nation, or in the selection of "extraordinary" representatives to represent the nation in the Third Estate.
Through the (electoral) authorization of pouvoir commettant, the people
limit their own power (se borner) by selecting those delegates who will execute
real laws. This is the basis of legislative representation, the only form of legitimate representation according to Sieyes. The exceptional act of founding the
nation, in terms of its position as "the underlying compacted unity of free individuals that established or constituted a public order" is, therefore, pouvoir
constituant itself in its purest form. Furthermore, this formation of the nation is
a result of "natural law," in terms of its basis in the division of labor and freedom of (political) association that Sieyes perceived to be at the root of political
life.70Hence, the nation could not be subject to a "positive constitution," for the
nation is, in essence, the constitution itself, incapable of acting against itself
because it would be logically contradictory to act against its own will.71 Private,
individual liberty is the result of representative government because the "social
state does not establish an unjust inequality of rights by the side of a natural
inequality of means."72 In fact, "on the contrary, it protects the equality of rights
against the natural but harmful inequality of means."73Alongside the distinction
between active and passive citizenship, such reasoning differentiated Sieyes's
focus on the nation from that of the Jacobins, and underscored his concern with
"re-presentation" of the "re-publique," as opposed to the "re-totale," the retotalization of society by any one particular regime.74 In common fashion, his
republicanism feared the imposition of an "ancient" republican model onto a
modem, post-revolutionary France, a position justified through his own science
sociale.75
Schmitt took these ideas up almost verbatim in terms of his discussion of the
foundation of the Weimar Republic. The people, he wrote, had abrogated the
70 See
71
Forsyth,Reason and Revolution,esp. 74-77.
Ibid.
72 Emmanuel
Sieyes, "FragmentsPolitiques," Des Manuscrits de Sieyes, ed. Christian
Faure (Paris, 1999), 471.
73 See Jeremy Jennings, "The Declaration des Droits de l'Homme et du Citoyen and its
Critics in France:Reaction and Ideologie," Historical Journal, 35 (1992), 842.
74 Istvan Hont, "ThePermanentCrisis of a Divided Mankind:'ContemporaryCrisis of the
Nation State' in Historical Perspective,"in J. Dunn (ed.), ContemporaryCrisis of the Nation
State? (Oxford, 1994), 166-231, esp. 203-6; EmmanuelSieyes, "Contrela Re-totale,"in Pasquino, Sieyes et l'invention, 175-76; RobertWokler,"ContextualizingHegel's Phenomenology
of the French Revolution,"Political Theory,26 (1998), 42f.
75 Whatmore,
Republicanismand the French Revolution, esp. 23-31; Hont, "'ContemporaryCrisis of the Nation State',"204ff; Forsyth,Reason and Revolution,177ff; KeithMichael
Baker, "Transformationsof Classical Republicanismin Eighteenth-CenturyFrance,"Journal
of Modern History, 73 (2001), 32-53.
126
Duncan Kelly
monarchicalprinciple (whose classical illustrationwas the 1814 Preambleto
the RestorationBourbonConstitution)regnantpriorto the GermanRevolution,
so that the subject ofpouvoir constituanthad consequentlychanged. At root,
the German"type"of constitutionalmonarchy-whether understoodas organism or as a "juristic"person statedthat the power of the monarchwithin the
state clearly stood opposed to the democraticprinciple.76Indeed,B6ckenforde
writes that "atbottom the monarchicalprinciplewas simply a historicalfact,"
albeit one which, after 1918 no longer "stoodup as a political formalprinciple
carryingits own legitimacywithinit."77Thetransformation
ofpouvoirconstituant
after the GermanRevolution for Schmitt, therefore,was to be understoodin
much the same way as Sieyes had theorized the transformationof the Third
Estatefrom"nothing,"to its new positionas "everything."The ThirdEstateand
its membersin the constituentNational Assembly exemplified what has (in a
slightlydifferentcontext)beenreferredto as the attempted"abolitionof feudality"
in revolutionaryFrance.Feudalityin this contextreferredto the political domination of king and nobility, whose hereditarypower could never truly "represent"the will of the people.78
Herewas a clearprecedentfor Schmitt"sdiscussionof the foundationof the
WeimarRepublic in the NationalAssembly elections of January1919, whose
delegateshe saw as representingthe constituentpowerof the people. He did not
fail to discuss the theoreticalimplications in his Verfassungslehre.79
Schmitt
wrote-again echoing Sieyes-that "theconstitutionin its positive sense originates throughan act of constituentpower,"and it was such constituentpower
thatlay behindthe choice for a democratic,as opposedto monarchical,constitution madeby the Germanpeople.80With"threeor perhapsfourconstitutions"in
the period 9 November 1918 until August 1919, the confusions of the situation
recalledthe positionof Francein 1793 andGermanyin 1848.81The specific idea
thatthe positive constitutionreflected the democraticprinciplewas illustrated
for Schmittin the Preambleto the WeimarConstitution,which statedthat the
Germanpeople had "given itself" the constitution,and that all state authority
76
Ernst-WolfgangBockenforde, "The German Type of ConstitutionalMonarchy in the
Nineteenth- Century,"State, Society and Liberty, trans. J. A. Underwood (Leamington Spa,
1991), 87-114; Phillipe Lauvaux,"Le principemonarchiqueen Allemagne,"in O. Beaud and P.
Wachsmann(eds.), La sciencejuridiquefranfaise et la sciencejuridique allemande 1870-1914
(Strasbourg,1997), 65-78; ChristophSch6nberger,Das Parlament im Anstaltstaat(Frankfurt
am Main, 1997), 70-82.
77
B6ckenfdrde,"GermanType of ConstitutionalMonarchy,"89, 93, 95, 103, 111.
78
Forsyth,Reason and Revolution,89; JeremyJennings,"Conceptionsof Englandand its
Constitutionin Nineteenth-CenturyFrench Political Thought,"Historical Journal, 29 (1986),
65-85, esp. 79f; Pasquino, Sieyes et I'invention,88.
79
Schmitt, Verfassungslehre,57; cf RobertoZapperi,"Sieyes et l'abolition de feodalite,"
Annales historiquesde la RevolutionFranfaise, 44 (1972), 321-51.
80
Schmitt, Verfassungslehre,21, though cf. 93, emphasis added.
81 Carl Schmitt,Die Diktatur
(Berlin [1921, rev. 1928], 19784),205.
127
Carl Schmitt
emanatedfromthem.82However, only the figure of the sovereignwould be capable of representingthe state as the "politicalunity of a people,"and accounting for the natureof thatrepresentativewas to necessitateSchmitt'sreturnto the
writingsof Hobbes.
IV. Hobbes and the Personof the State
MurrayForsythhas arguedthatHobbes's accountof the modem statewas,
like Sieyes's, basedon the "constituentpowerof the people"andunderpinnedby
If Sieyes built on Hobbes, though, Schmittdetera concept of representation.83
minedto combinethe two writers,andto fully understandSchmitt'saccountof
the moder state,Hobbes'saccountof representationmustbe clearlyoutlined.It
is a particularlyHobbesian argumentthat Schmitt employs underWeimarto
supportthe powers of the Reichsprasidentas the bearerof state sovereignty,but
one which appearsto place constituentpowerwith the body of the people. Here,
his accountof the sovereignis boundup with his conflationof the conceptof the
state with that of the political, illustratedin the tautology suggesting that "the
stateis an entity,andin fact the decisive entity,"because it "restsupon its political character."84
As the state is premisedon an accountof the political, properly
understoodthe two are coterminous,as the sphere of the political is where is
delineatedthe precise authoritythatis able to take decisions aboutwho or what
constitutes a threatto the state, the political and public sphere.85Hence: "the
enemy is hostis, not inimicusin the broadersense."86
Schmitt's concept of the political built on his discussions of romanticism
and sovereignty.87For it is to the moment of decision that his writings are attuned, and his argumentis positioned at the intersectionof constituentpower
andthenormallegal order,because"onlywhenthe decisionof a sovereignpeople
ha[s] been expressed could one strive to regulate its formulationand execution."88As Schmitt'sformulationin Political Theologymade clear,"sovereign
82
Schmitt, Verfassungslehre,58; see Elmar M. Hucko (ed.), The Democratic Tradition:
Four German Constitutions(LeamingtonSpa, 1987), 149-90.
83 MurrayForsyth, "ThomasHobbes and the ConstituentPower of the
People," Political
Studies, 29 (1981), 191-203, esp. 193; Skinner,"ArtificialPerson,"4, n. 12. David Runciman,
Pluralism and the Personality of the State (Cambridge, 1997), 12-13, n. 13, and Skinner,
"ArtificialPerson,"21, criticize his ascriptionof a "latent"group personalityto the state.
84
Schmitt, Concept of the Political, 44.
85
Schmitt, Concept of the Political, 33; Meier, Schmittand Strauss, 23f.
86 Schmitt, Concept of the Political, 28f. and n. 9; cf. Simon Critchley, "The Other's
Decision in Me (WhatAre the Politics of Friendship?),"Ethics, Politics, Subjectivity(London,
1999), 254-86; Kennedy, "Hostis not Inimicus,"esp. 44-47.
87 Carl Schmitt,Political Romanticism,trans.G. Oakes (Cambridge,Mass., [1919] 1991).
88 Cristi, AuthoritarianLiberalism, 121; Caldwell, Popular
Sovereignty, 227 n. 109:
"[Schmitt]could only imagine the alternativesof bourgeois Rechtsstaat and communist revolution."
128
Duncan Kelly
is he who decidesuponthe stateof exception,"endowingthe figureof the sovereign with the capacity of making the public decision between friends and enmoment.Yet,thereis clearlyan
emies, of decidinguponthe extra-constitutional
elision here,betweenthe conceptof the stateandthe personof the sovereignthat
seems remarkablysimilarto the way Hobbes's sovereign is often discussed as
being synonymouswith the state.Furthermore,althoughSchmittattachedgreat
importanceto the fact thatthe state is the highest form of political association,
and although he thought that the unity of the contemporarystate was under
threat,it is clearthatthe entityknown as "thestate"cannot"act"in any obvious
sense. It is an artifice,an abstraction.Nevertheless, somethingcalled the state
patentlyexists. And given his suggestion that all modem concepts of the state
aresecularizedtheologicalconcepts,it shouldcome as no surprisethathe turned
to Hobbes's discussion of"that MortallGod"to which we owe ourearthlyallegiance for guidance.89
For Hobbes, properlyaccountingfor the actions of the representativesovereignallows the characterof the statebe ascertained.The centralquestionhere
is how the state-as mere artifice-can be authorizedto act in the name of the
people, a question raised in fact in the frontispiece to Leviathan.90And on
Hobbes'smost famous account,"APERSON,is he, whose wordsor actions are
considered, either as his own, or as representingthe works or actions of an
other man, or of any other thing to whom they are attributed,whetherTrulyor
byFiction."Moreover,"whenthey are consideredas his owne, then is he called
a NaturallPerson: And when they areconsideredas representingthe words and
actions of an other,then is he a Feigned orArtificiallperson."91Some "Persons
Artificiall,"Hobbesnoted,"havetheirwordsandactionsOwnedby those whom
they represent.And then the Person is the Actor; and he thatowneth his words
and actions, is the AUTHOR:In which case the Actor actethby AuthorityFor
that which in speakingof goods and possessions, is called an Owner."Therefore, if an actor"owns"the actionsperformed,he has "authority,"by which "is
alwayes understooda Right of doing any act, so thatif an Actor maketha Covenantby authority,he bindeththerebytheAuthor,no lesse thanif he hadmade it
himself."92In otherwords, a person:
... is the same that an Actor is, both on the Stage and in common Conversation; and to Personate, is to Act, or Representhimselfe, or an
other;andhe thatactethanother,is saidto bearehis Person,or act in his
name.93
89
Schmitt, Political Theology, 37.
90 Noel Malcolm, "The Titlepage of Leviathan, Seen in a Curious Perspective," The
SeventeenthCentury, 13 (1998), 124-59, esp. 148.
91Thomas
Hobbes, Leviathan,ed. RichardTuck (Cambridge[1651], 1996), 111.
92
Ibid.
93Ibid., 112.
Carl Schmitt
129
If one makes a covenantwith an actoror representer,the authorityof the actor
binds one as an authorof the action,so thatone can only be boundby a covenant
when one is an author.Such authorization,which is necessarilyrepresentation,
entails an obligationto fulfil the termsof the covenantin termsof the criteriaof
justice establishedby the civil law.94This is becauseall covenantsbetweenmen,
as naturalpersonsareartificialconstructs,andbindingin termsof"CivilleLawes"
only when a "coercivepower"exists, "andsuch power thereis none before the
erectionof a Common-wealth."95
Althoughcivil laws entrencha generaldesire
forpeacefulandcommodiousliving, only a sovereignpowercan oblige (through
the authorityof theirown actionsin establishinga commonwealth)men to obey
them.96Thus, the libertythatmen "denythemselves"upon authorizingthe actions of the personof the Commonwealth-a resultof theircovenantto escape
the stateof nature-is therebytransformedinto an obligationto obey the sovereign power, for men themselves have authorizedits actions. Even "covenants
enteredinto by fear,in the conditionof meer Nature,are obligatory."97
The principalconclusion of Hobbes's discussion of attributedaction is that
such actionas is performedby a representativecountsas the actionof the author
even if the authordoes not physically undertakea particularaction. Indeed,the
point is that an authoris "underobligation to take responsibilityfor its occurrence,"because they "own the consequences of the action as if they had performedit themselves."98Here,therearetwo majorareasof interest.First,when
discussing artificialpersons(of which the state is one), one of Hobbes's principal tasks was to show how such persons are capableof being represented.For,
althoughable to "speakand act,"these artificialpersonsare "incapableof acting as authors in the distinctive manner of natural persons, and hence of
authorisingtheir own representatives."They cannot covenant. Second, therefore, "it is possible for them [to speakandact] ... only if theirwords and actions
can validlybe attributedto themon the basis of theirperformanceby some other
personor collectivity licensed to act in theirname."99
Althoughit is clearthatHobbes's accountis so broadthatalmost any entity
can be a person, his account of what constitutesa "natural"person is actually
quitelimited.Therefore,in his discussionsof artificialpersons-in DavidCopp's
terms, those persons who perform"secondaryactions"100-thedistinctionbeHobbes, Leviathan, 112.
100f.
96Ibid., 185.
97
Ibid., 150. Cf. A. J. Simmons, Moral Principles and Political Obligations (Princeton,
1979). On Hobbes's theory of volition, see Patrick Riley, Will and Political Legitimacy
(Cambridge,Mass., 1982), 23-60, esp. 58.
98 Hobbes, Leviathan, 10.
9 Ibid., 14.
100David Copp, "Hobbeson Artificial Persons and Collective Actions," ThePhilosophical
Review, 89 (1980), 579-906, esp. 583.
94
95 Ibid.,
Duncan Kelly
130
tween the two main types of attributedaction, "whethertruly or by fiction,"is
crucial.The theatricalallusions within Hobbes's accountof attributionby fiction have often been discussed.101However, as Skinnerargues, it is of paramountimportanceto Hobbes's argumentthatthe actions of the state, however,
be trulyattributedto it. OnHobbes'saccount,artificialpersons-such as bridges
and hospitals-can be trulyrepresented"by a Rector,Masteror Overseer"(or
in the case of the state,a sovereign),commissionedandgiven the authorityto act
on their behalf.102This is a voluntary transferof right, and "once you have
covenanted,you must leave it to your representative,who is now in possession
of yourrightof action,to exercise it at his discretionwhen actingyourname."103
To use Copp's helpful phrasing,this type of artificialperson "is an agent that
has actions attributedto it on the basis of acts of otheragents. Collectives that
The state on this readingis a personthatperforms
act are artificialpersons."104
secondary actions. Yet there remains the problem of how such authorization
takes place given the inanimatestatusof the artificialperson in particular,and
the fact thatthe state-rather unlike a bridge-does not even exist priorto the
mutual covenants of the multitude.For Skinner,Hobbes's proposed solution
was the suggestion that the authorizationrequiredfor actions to be truly (and
not fictionally) attributedto artificialpersonsrequiresthat"suchacts of authorizationmust standin some appropriaterelationshipof dominionor ownership
And of all the illustrawith respectto the purelyartificialpersonconcerned."105
tions Hobbes came up with in this regard-of "ownership"as possession of
property,as the relationshipof a governorto his charge,as maternaldominion
over children,or as the dominionof the state-the latteris of paramountimportance. For the essence of the commonwealthis embodied in the figure of the
sovereign.106
This is surely also what Schmitt meant when he suggested that through
representationpoliticalunitycould be achieved,becausewithoutsuchrepresentationalunity the naturalexistence of diverse human groups cannot have the
specificallypoliticalqualityof sovereignty,andwithoutsuchunitythe sphereof
the politicalitself is threatened.107As Hobbeshadargued,in the formationof the
state:
101
Skinner, "Artificial Person," 15f; cf. Runciman, "What Kind of Person is Hobbes's
State?"268-78, esp. 275f; Pye, "Sovereign, Theater,"passim.
102
Copp, "ArtificialPersons and Collective Actions," esp. 589-93.
103
Skinner, "Artificial Person," 9.
104Copp, "ArtificialPersons and Collective Actions," 583,
595.
105Skinner,"ArtificialPerson," 17f, emphasis added.
106
In general, see Horst Bredekamp,ThomasHobbes Visuelle Strategien (Berlin, 1999),
esp. 18-26.
107
Schmitt, Verfassungslehre,210.
Carl Schmitt
131
One Person, of whose Acts a great Multitude,by mutuall Covenants
one with another,have made themselvesevery one the Author,to the
end he may use the strengthand means of them all, as he shall think
expedient,for their Peace and CommonDefence.
And he that carryeththis Person, is called SOVERAIGNE,and
saidto have SoveraignePower; andevery one besides,his SUBJECT.108
However, as Skinnerpoints out, there is still a difficultpoint at issue here. For
the "nameof the personengenderedby the transformationof the multitudeinto
one personthroughtheiragreementto appointa representativeis not the sovereign but the state,"and the state is an artificialperson. Therefore,Hobbes argued that the commonwealthis an artificialperson, and "he that carryeththis
Person, is called SOVERAIGNE,and said to have SoveraignePower."'09The
sovereign in effect personates or representsthe artificialperson of the state.
Because the statecannotauthorizeits own representative,a representativemust
be authorizedby those who stand in an appropriaterelationshipof dominion,
and who (as naturalpersons) possess the right to undertakethe actions they
authorize,to covenant.And it is clear thatin the Hobbesiancommonwealthby
institution,only if the public acts of sovereigns (as representativesof the state)
have been authorizedby the mutualcovenantsof the multitudeto formthe commonwealth,can the actions of the sovereignbe trulyascribedto the people. As
Runcimannotes, the case of stateformationin Leviathanallows "ownership[of
action]to reside in the thingto be represented,"in this case the state.Therefore,
the mutualcovenantsof the multitudemakes "possiblethe fiction thatthey can
act as a unit, and commit themselves to the real actions that can maintainthat
fiction.""0How though could the actions of the state to be truly attributableto
the people who effectively own these actions, if the state is a personby fiction?
Copp's analysismakes clearthis difficultpoint, suggestingthat"someartificial
personsperformactions of which they arenot authors.Thatis, some may have
actions attributedto them on the basis of actions of persons even though the
formerhave not authorizedthe latter.""'This capturesprecisely the position of
the stateor commonwealthin Hobbes's schema.It relatesdirectlyto a common
sense understandingthat althoughthe actions of the state are truly attributable
to those who authorizeits actions,the state is not the type of person,at least not
accordingto Hobbes, that can authorizeits own actions. Withouta sovereign,
108Hobbes, Leviathan, 121, 120.
109Skinner, "Artificial
Person," 20, 19; Runciman, "What Kind of Person is Hobbes's
State?"272; Hobbes, Leviathan, 120-21.
110
Ibid., 273.
1" Copp, "ArtificialPersons and Collective Actions," 593.
132
Duncan Kelly
the state is incapable of acting, indeed it cannot "doe anything"because the
sovereignis the "sole legislator."'12
Schmitthad suggested that if Parliament"personifies"the nationbefore a
"higher"representative,such as a monarch,then it would be substantivelyor
politically representational.However, if parliamentaryrepresentationmerely
referredto the division of seats in a chamberon the basis of votes cast, if it is
simply a competitionbetween elites for numericalsuperiority,then such a type
of representationis nothing"distinctive"-and distinctivenessis a definingfeature of legitimaterepresentation.113
Once again, the circularityof his argument
is noticeable.Sovereigntystemsfromthe personalauthorityembodiedin a ruler;
sovereigntyis tied to the political;the sovereignrepresentsthe politicalunity of
a people; personalistrepresentationthereforebrings aboutpolitical unity.This
type of argument,which conjoineda critiqueof the influence of technical-economic thinking on parliamentarismwith a deep-seatedbelief in the natureof
representationas a substantialand personalform of authority,enabled Schmitt
to justify his supportfor the figure of a strongReichsprasidenton the basis of
Article 48 of the WeimarConstitution.114
He justified these argumentstheoretically, by adaptingthe writings of Hobbes and Sieyes to suggest that only the
figure of the sovereign could properlyrepresentthe political unity of a people.
Such unity was broughtaboutthroughthe idea of an interrelationshipbetween
the constituentpower of the people and political representationproperlyconceived-a tense relationshipwhose implicationsare still much debatedin contemporarypolitical theory.15
V. Carl Schmitt'sPolitical Theoryof Representation
Theoretically,SchmittsuggestedthatSieyes offereda "democratic"theory
of the constituentpowerof the people, stemmingfromhis oppositionto absolute
monarchy,whichwas simultaneouslycombinedwith an "anti-democratic"
theory
of representationand indirectsovereignty.The nub of what Schmitttook from
Sieyes's theoryof representationwas thereforequite general.I have suggested
those pointsof referencethatwere particularlyimportantfor Schmitt'sinterpretation and constitutionaltheory.And althoughSieyes's thoughtis not best understoodin isolation from the debatesin which it was conducted,Schmittcertainly abstractedfrom these debates to pull out the centralpoints at issue for
12
Hobbes, Leviathan, 184.
Schmitt, Roman Catholicism,25.
114 See Duncan
Kelly, TheState of the Political: ConceptionsofPolitics and the State in the
Thoughtof Max Weber,Carl Schmittand Franz Neumann(Oxford,2003), ch. 4; David Dyzenhaus, "Legal Theory in the Collapse of Weimar:ContemporaryLessons?"AmericanPolitical
Science Review, 91 (1997), 121-34.
115Anne Phillips, The Politics of Presence (Oxford, 1995).
113
Carl Schmitt
133
him.116This involved a focus the representativecharacterof a constitutionor
statebased on the constituentpower of the people quanation.Equally,although
Schmitt was certainlynot an advocate of the direct popularrule, neitherwas
Sieyes. As Sonenscherhas argued,Sieyes pushedfor a "seizureof powerby the
representativesof the ThirdEstate in the name of the sovereign union,"a case
(neatlylinkedto discussionsof the Frenchfiscal deficit) of puttingthe stateback
in credit.l7
Moreover,when Sieyes himself developedHobbes'saccountof representation, he presenteda powerfulcombinationof argumentsthatcontinueto underpin many assumptionsaboutthe characterof the modem nation-state.According to Wokler,Hobbes's accountof "theunity of the representer"in Leviathan
paved the way for the understandingof the modem state outlined by Sieyes
duringthe FrenchRevolution,which "requiresthatthe represented-that is, the
people as a whole-be a moralpersonas well.""' More concretely,Sonenscher
calls Sieyes's concept of the nation a "synonym for Hobbes's 'state' and
Rousseau's 'general will,' that is to say, that the nation was "an abstraction
representedby a body.""19But Sieyes adamantlyopposed Rousseaueancriticisms of representation,and "it was of the essence of his plan thatthe nationin
assembly spoke for all the people and must never be silenced by the people
themselves."120
Sieyes's concepts of the state and the nation underpinnedby
constituent
popular
powerinformedSchmitt'saccountof the modem stateas the
"politicalunity of a people." For this reasonthe notion of representationplays
an incrediblyimportantpartin Schmitt'saccountof the state, and thereforein
his wider political theory.Schmitt'spolitical argumentwas precisely that contemporary"liberalismis not the best realisation"of the principleof representation. "Onthe contrary,it is the very violationof it."'21His subsequentdefense of
116See Michael
Sonenscher,"TheNation's Debt andthe Birthof the Modem Republic:The
French Fiscal Deficit and the Politics of the Revolution of 1789. Part II," History of Political
Thought, 18 (1997), 289.
17
Michael Sonenscher,"The Nation's Debt and the Birth of the Modem Republic: The
French Fiscal Deficit and the Politics of the Revolution of 1789. Part I," History of Political
Thought, 18 (1997), 70. Emphasis added. See also Sonenscher,"The Nation"s Debt, Part II,"
305-8.
118Robert
Wokler, "The EnlightenmentProject,the Nation State and the PrimalPatricide
of Modernity,"in R. Wokler and N. Geras (eds.), The Enlightenmentand Modernity(London,
2000), 178.
"l9Sonenscher,"The Nation's Debt, Part II," 313, 314; cf. Tracy Strong, "How to Write
Scripture:Words,Authority,and Politics in Thomas Hobbes,"CriticalInquiry,20 (1993), esp.
156ff.
120 Wokler, "Enlightenment,Nation-State,"178; cf.
GregoryDart,Rousseau, Robespierre
and English Romanticism(Cambridge, 1999), 25-29.
121 McCormick,Schmitt's
Critique, 187; cf. Volker Neumann,Der Staat im Biirgerkrieg
(Frankfurtam Main, 1980), 25.
134
Duncan Kelly
the representativefigureof the political leader(the Reichsprisident)who could
unify the body of the stateagainsta weak andliberal"totalstate"was derivedin
largepartfromthe work of Hobbes.He could only develop this argument,however, afterhe had cementedhis ideas aboutpolitical representationin the language of modem constitutionalismthroughhis engagementwith Sieyes.
The Universityof Sheffield.