Böckenförde. Schmitts Concept of The Political

5
The Concept of the Political:

A Key to Understanding Carl Schmitt's
Constitutional Theory
Ernst-Wolfgang Bockenforde
The focus of this paper is not on the person, but on the work of Carl Schmitt,
in particular the significance of Schmitt's concept of the political for an understand-
ing of his legal and constitutional theory. Let me start with a short personal memory.
When I was a third year law student, I read Carl Schmitt's Constitutional Theory.
I came across the formulations that the state is the political unity of a people1 and
that the rule of law component in a constitution is an unpolitical component.21 was
puzzled by these two remarks. I had learnedfromGeorg Jellinek that the state, from
a sociological perspective, is a purposeful corporative unit and, from a legal per-
spective, represents a territorially based corporation. I had also gathered some
knowledge about "organic" state theories, especially that of Otto von Gierke who
considers the state an organism and a real corporative personality rather than a mere
legal fiction.3 On the basis of these theories, I felt unable to understand Schmitt's
point that the state is the political unity of a people, because in those theories the
political aspect is largely missing. It was only later that, by reading and studying
Carl Schmitt's essay The Concept of the Political, I gradually learned to make sense
of the above remarks. Thus I have discovered that that essay, and the understanding
of the political elaborated in it, contains the key to understanding Carl Schmitt's
constitutional theory in general. I would now like to explain this.
I.
Let us start with the general content and the core message of the concept of the
political.
1. Given the debate triggered by that essay and in the face of its wide repercussions,
one has to rescue Schmitt's core message from an array of misunderstandings. To
discuss and refute these misunderstandings—which partly stemfromthe intellectual
and political situation to which Schmitt addressed his essay and partly reflect a
deliberate refusal of any serious understanding—would require another paper. I
therefore confine myself to mentioning two common and influential misunder-
standings.
This is reprinted from E.-W. Bockenforde, Recht, Staat, und Freiheit: Studien zur Rechtsphilosophie,
Staatstheorie und Verfassungsgeschichte (Frankfurt: Suhrkamp, 1991), by permission of the author
and Suhrkamp. Translated by Heiner Bielefeldt. The original title is "Der Begriff des Politischen als
Schlussel zum staatsrechtlichen Werk Carl Schmitts".
1. Carl Schmitt, Verfassungslehre (1928) at 2, 125, passim.
2. Ibid, at 200.
3.0. Gierke, Das Wesen der menschlichen Verbande. Rektoratsrede (1902) at 8ff.
Canadian Journal of Law and Jurisprudence Vol. X, No.l (January 1997)
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6 Bockenforde
The first misunderstanding relates to the distinction between friend and enemy
which Schmitt develops in that essay. The misunderstanding consists in holding
that this distinction serves to turn the domestic debate within the state into a rela-
tionship between friend and enemy and, where possible, to create a corresponding
reality. This seems to thwart any peaceful (albeit perhaps combative) search for
compromise and agreement as well as for shaping the domestic political and social
order. The second misunderstanding takes Schmitt's essay to constitute a normative
theory of politics and political action in such a way that the friend-and-enemy-dis-
tinction as well as the resulting militant conflict becomes die purpose and substance
of politics. This widespread misunderstanding has largely shaped the debate on
Schmitt's concept of the political. It may be true that Schmitt did not explicitly dis-
tance himself from such an interpretation. Nevertheless, that interpretation can easily
be refuted by reference to Schmitt's text.4
2. The central message as well as the academic significance of Schmitt's concept

of the political can be seen in the fact that it focuses on the phenomenological cri-
terion not of politics but of "me political" or, more precisely, the degrees of intensity
within the political. To know and recognize this criterion is a precondition to any
meaningful political action. The criterion in question, according to Schmitt, is that
the political, considered and determined as a phenomenon, can possibly lead to
an extreme antagonism between friend and enemy, an antagonism which includes
the readiness for conflict, even for armed conflict. It is from this inherent possibility
that the political gets its phenomenological definition. I have elsewhere5 defined
the political as follows: The political does not consist in a determined sphere of
objects, but rather means a public relationship between people, a relationship
marked by a specific degree of association or dissociation which can potentially
lead to the distinction between friend and enemy; the content underlying this rela-
tionship can originate from any sphere or area of human life.
3. It is from this definition that the second core message of the concept of the polit-
ical becomes meaningful—a message formulated mostly implicitly until it was
made explicit in the introduction to the new edition from 1963. This is the assertion
that the state is the political unity of a people.
a) In the light of Schmitt's idea of the political, the state as apolitical unity means
a pacified unity encompassing the political. While fencing itself off against other
external political unities, its domestic distinctions, antagonisms, and conflicts remain
below the level of friend-enemy-groupings. This is to say that all these domestic
4. C. Schmitt, Der Begriffdes Politischen. Text von 1932 mit einem Vorwort und drei Corrolarien
(1963) (hereinafter Der Begriff) at 34-35: "War is by no means the goal or purpose or even content
of politics. Being a real possibility, however, war is an ever existing presupposition which in a
peculiar way determines human action and thought thereby yielding a specifically political
behaviour." This statement, though abbreviated and slightly different, can also be found in the
third edition from 1933 at 17.
5. E. Bockenforde, "Staat—Gesellschaft—Kirche" in Christlicher Glaube in modemer Gesellschaft,
vol. 15 (1982) at 82.
The Concept of the Political 7
relationships are embraced by the relative homogeneity of the people held together
by some sense of solidarity (i.e., friendship). Domestic conflict can thus be inte-
grated into a peaceful order guaranteed by the state's monopoly of coercive power.
This in turn means that, as Carl Schmitt himself pointed out, unlike foreign politics,
politics within the state is "political" only in a secondary degree.6 Domestic politics
in its classical sense aims at good order within the community by trying to keep
conflicts and debates within the framework of peaceful coexistence. Thus it is the
purpose of the state as a political unity to relativize domestic antagonisms, tensions,
and conflicts in such a way as to facilitate peaceful debates as well as solutions
and ultimately decisions in accordance with procedural standards of argumentation
and public discourse.
b) However, against a widespread misunderstanding, I should emphasize that the

sphere of domestic politics within a state is by no means completely detached from
the concept of the political; nor is the term "political" used with a completely dif-
ferent meaning in such a case. Rather, the above definition of the political holds
also for domestic politics, if only in a derivative sense. On the one hand, it is only
on a minor scale that the concept of the political applies to domestic politics; on
the other hand, this domestic application is logically derived from the criterion of
the political in general. The reason for this is as follows. Conflicts about how to
shape the order of coexistence also occur within the political unity, even though
this unity is shielded from the intensity of a friend-enemy grouping. In such a case
people publicly form groups with and against each other. Given that the political
does not constitute a closed sphere in itself, this grouping can potentially occur
in various spheres of public life, such as cultural policy, economic policy, or foreign
policy, etc. The decisive point is only that this grouping must not reach the intensity
of a friend-enemy relationship. Nevertheless, this phenomenon of grouping can
be called political in the Schmittian sense because, if reasonable politics and conflict
management fails, it possibly can escalate to the ultimate degree of intensity. The
"Kulturkampf' in Prussia and in the German Reich during the Bismarck era, for
instance, stopped short of the friend-enemy grouping. It even escalated to the point
of an existential conflict between the state and the Roman Catholic part of the pop-
ulation. Bismarck was a shrewd enough politician to see that the very existence
of the Reich was at stake. Hence his search for reconciliation with the Catholics,
however stubborn they might have appeared to him. Something like this can poten-
tially occur in every sphere of life. Escalating political conflict can arise over ques-
tions of university reform, education, or—perhaps in a few years—the disposal
of waste and garbage.
From a logical point of view, it seems appropriate to characterize this as a "sec-
ond order concept of the political," since it is connected with, rather than completely
detached from, the political friend-enemy definition. As Carl Schmitt says, the polit-
ical is neither thoroughly absent within the established political unity of a state;
nor is it confined to the sphere of foreign affairs. Facing the ever lurking potential
6. Der Begriff, supra note 4 at 30f. See also the introduction of 1963, ibid, at lOf.
8 Bockenforde
of an escalating friend-enemy-grouping, it is present also within the state, even

though in a normal situation it does not visibly manifest itself.
c) This is to say that once a political unity has been accomplished it can never be
taken for granted but must continuously preserve and reconfirm itself through the
actual cooperation of the people in question. The political unity can be jeopardized
both from without, that is, by threats and attacks from external enemies, as well
as from within. The integration and domestication of the political sphere into the
encompassing order of the state can come into question; it can become precarious
to the point of concealed or open civil war which itself would finally dissolve the
state's very unity as a political unity. To overcome such a menace, one has to sta-
bilize the domestic order and preempt existing or looming tensions and conflicts.
What is needed above all is to avoid the escalation of conflicts and an intensity
of dissociation that could lead to a break down of the political solidarity (i.e. polit-
ical "friendship") based on the relative homogeneity of the people. A reasonable
policy is thus one that comes about through and is determined by understanding
the peculiar quality of the political.
4. If what I have explained so far is indeed the precise meaning of the definition
of the state as a political unity of a people, some consequences for constitutional
law can be drawn. Constitutional law then appears as the binding normative order
and form determining the existence, maintenance, and capability for action of a
political unity in the above sense. It is and must be the specific telos of constitutional
law to facilitate, preserve, and support the state as a political order and unity. An
interpretation of constitutional law challenging or even undermining such an order
would thus be an oxymoron. In this sense constitutional law is a genuinely political
law: It deals with politics not only indirectly and incidentally, but immediately
addresses the existence, form, and action of the political unity; its object, so to
speak, affects the gravitational field of the political itself.7
II.
In this section, I try to demonstrate how Schmitt's concept of the political and
the corresponding characterization of the state as a political unity facilitates an
understanding of crucial concepts, statements, and theses within Carl Schmitt's
constitutional theory; I also try to show how these concepts, statements, and the-
ses—despite problems of understanding their adequacy and consistency—receive
their inner justification and coherence. I do not want to anticipate the discussion
of whether the purpose Carl Schmitt pursues by these concepts and statements could
also have been achieved, perhaps even better, by different means. I want to show
the systematic coherence of his concepts, a coherence which frequently has been
denied and yet seems to me of crucial importance in his constitutional theory.
7. See E. Bockenforde, "Die Eigenart des Staatsrechts und der Staatsrechtswissenschaft" in Recht
und Staat im sozialen Wandel. Festschrift H. U. Skupin (1983) at 317 and at 330 ff.
Ellen Kennedy has pointed to the fact that Schmitt's Constitutional Theory and
the first version of The Concept of the Political were written around the same time.
Hence it is not surprising that the features of The Concept of the Political are
reflected in Constitutional Theory, even though Schmitt does not mention this
explicitly. The state as political unity of a people, the rule of law component as
an unpolitical part of the constitution—these theses are indeed put forward in
Constitutional Theory without any further explanation. And yet, does this very fact
not point to the underlying assumption, that is, the general intellectual framework?
And is it not possible that this holds not only for Schmitt's Constitutional Theory
but also for his entire work on constitutional questions?
Now I would like to give seven examples in order to illuminate the thesis that
The Concept of the Political entails a key to understanding Carl Schmitt's consti-
tutional theory in general.
/. The concept of sovereignty and its unavoidability in constitutional law
The formula is well known: "Sovereign is he who decides on the state of excep-
tion."8 Political unity constitutes and preserves itself by superseding tensions, antag-
onisms, and conflicting interests; it strives towards unity and community in such
a way as to relativize and integrate these conflicts. For this to happen, however,
the possibility of a final decision, i.e., a decision beyond further appeal, is needed.
Thus sovereignty, which includes this authority of making a final decision, is a nec-
essary authority for the state as a unity of peace.' Sovereignty also facilitates a deci-
sion on whether the state of exception* applies and, if this is the case, how to deal
with it. In the concept of sovereignty this authority is formulated as a legal title;
that is, the sovereign has a constitutional "right" to take such a decision. This pos-
sibility fully manifests itself in the extreme endangering of the political unity, a
situation which can neither be defined in advance nor be limited with reference
to specific cases, because in such an extreme situation the very existence of the
political unity is in jeopardy. In this conference the "right to rescue,"10 which means
the same phenomenon, has already been mentioned. Carl Schmitt holds that
sovereignty can neither be limited by legal means nor be given up, unless the
state itself as a self-preserving political unity ceases to exist." Whether there are
actual limits on power or some political obligations which—as such or in particular
8. C. Schmitt, Politische Theologie, 2d ed. (1934) at 11.

9. Hence Schmitt writes (ibid, at 20) that sovereignty, defined legally, does not mean a monopoly
of coercion or power but a monopoly of decision. See also H. Heller, Die Souveranitat (1927)
in Gesammelte Schriften vol. 2 (1971) at 120ff and 185ff).
* Translator's note: in German, state of exception—Ausnahmezustand—means state of emergency.
10. See the paper by E. R. Huber in H. Quaritisch, ed., Complexio Oppositorum. Uber Carl Schmitt
(1988)at33ff.
11. Der Begriff, supra note 4 at 39; see also H. Heller, supra note 9 at 185ff. This is the starting point
of Schmitt's theory of confederation which rests on the assumption that, due to the homogeneity
within the confederation, an existential conflict between the federal and the state level does not
occur; hence the question of sovereignty can be left undecided. See Verfassungslehre, supra note
1 at 370ff.
10 Bockenforde
situations—hinder the full elaboration of sovereignty is a different question. Limits

of such a kind always exist and depend on the development of political conflict
as well as on changes in power relations. Such factual limitations, however, do not
put into question sovereignty as understood from a legal perspective. And even if
sovereignty is legally abolished, given up, or integrated in such a way that its author-
ity of final decision gets lost, this would not be the end of sovereignty as such;
rather, it would mean the transition of sovereignty to another, more encompassing
political unity which itself would then claim and, if the need arises, invoke this
right of sovereignty.'2 A previously independent political unity would thus become
a dependent unity the political authority of which would be limited to deciding
merely internal conflicts under the umbrella of another political unity.'3
2. The relationship between state and constitution
It is a premise of Carl Schmitt's political thought that it is not the constitution

which forms the state but, rather, the state which facilitates setting up a constitution.
This premise necessarily follows from the concept of the state as a political unity.
As a political unity—i.e., a unity of power and peace, vested with a monopoly of
coercive power in domestic affairs—the state is something factually given; it is
given first as a concentration of power. In addition to this—and this seems especially
important to me—the relative homogeneity of the people is also factually given
rather than a normative postulate or something produced by compliance with the
constitution; this relative homogeneity constitutes the basis and precondition of
the unity of peace as well as the application of monopolized state power which
itself, first of all, must be accepted by the citizens. The legal constitution—as well
as the obedience to, and application of, its normative understanding—does not con-
stitute the state; it is much more the case that the state—as a political unity—is
the presupposition of constitutional validity. This is not to deny that the state by
means of its legal constitution receives a fixed form, a more precisely determined
regulation of governmental activities, and hence a higher degree of stability. The
very existence and substance of the state, however, does not derive from its con-
stitution.14
12. Der Begriff, supra note 4 at 51-54. Loss of sovereignty would be synonymous to loss of final
political decision. In regard to such a case, Schmitt writes: "If a people lacks the force or will
to maintain itself within the sphere of the political, the political does not thereby disappear. What
disappears is merely a weak people" [scil.: as a political unity]. Ibid, at 54.
13. The classical legal concept for such a case is protectorate; the political concept is hegemony.
14. The relationship between state and constitution is already implied in the concept of constitution
in that this concept means the decision about the way and form of the political unity whose very
existence is thus presupposed. See Verfassungslehre, supra note 1 at § 3 I at 21f. This does not
preclude the possibility that in a particular historic and political situation the act of constitution-
giving coincides with setting up the political unity of the state. An example is the situation of
state secession. However, this is not necessarily the case, and it was not the case with the estab-
lishment of the great paradigmatic constitutions, such as the French constitution of 1791 or that
of the United States in 1787.
3. The constitution and its elements
a) The constitution is not a contract, but a decision, more precisely, a decision about
the type and form of the political unity.15 As Carl Schmitt explains in Constitutional
Theory, a constitutional contract is possible only between existing political unities
which thereby establish a confederation or federation of states.16 The main example
of this is a federal contract of the kind concluded by the German Confederation,
the North German Confederation, the Swiss Confederation, or by the Act of
Confederation between the states of New England. Within the state, however, the
basic form and order cannot rest on a contract, because in such a case the principle
and guarantee of unity—and hence the state as a political unity—would cease to
exist. If one is to maintain the political and legal meaning, constitution by contract
would be possible only as a contract between independent and autonomous political
forces within the state. If this were the case, however, the principle and guarantee
of state unity would be highly problematic. The question is how, under these cir-
cumstances, constitutional amendments, constitutional changes, and decisions on
constitutional debates are conceivable—unless one assumes the relative tranquillity
of a "juste milieu" or of the "halcyonic days," a situation which would facilate per-
manent and harmless compromises.'7
b) Given the concept of the state as a political unity, Schmitt's distinction between
political and unpolitical elements of the constitution, a distinction frequently crit-
icized and not easily understandable, can make sense and receive its intrinsic ratio-
nale. This holds also for the characterization of the rule of law as an unpolitical
component of the constitution. To be sure, prima facie the critical question arises
whether the rule of law component does not represent a part of the political order
of the commonwealth. Yet the political in the Schmittian sense is what underlies,
facilitates, and shapes the political unity as unity: a degree of intensity of that asso-
ciation which supersedes conflicts and antagonisms in such a way as to provide
both form and organisation and furnish and maintain a working political order. This
includes the legitimation of state activities, a legitimation which in a democracy
originates from the people. Those elements of a constitution, however, which affect
the state unity in a hindering, balancing, liberating, and perhaps pluralizing
way—i.e., basic rights, separation of powers, and the accommodation of an
autonomous realm of economic and commercial activities—cannot be called polit-
ical in the Schmittian sense, because they relativize and limit the political unity
15. Ibid, at §3, 20 and 21-23.

16. Ibid, at § 7 n, 62ff.
17. Hence Schmitt's constant criticism of the constitutional dualism as it is typical of the constitutional
monarchy. This criticism can already be found in Verfassungslehre, supra note 1 at § 6II5,53ff.
It is much harsher in his Staatsgefiige und Zusammenbruch des Zweiten Reiches (1934) where
Schmitt takes the constitutional conflict of Prussia as an example to demonstrate that a consti-
tutional monarchy is a permanent compromise between opposite principles of political legitimacy.
For a different opinion see E. R. Huber, Deutsche Verfassungsgeschichte seit 1789 vol. Ill
(Stuttgart: W. Kohlhammer, 1963) at 1-20. Important in this connection is Rainer Wahl's argument
that a constitutional review and constitutional monarchy could notfittogether. See R. Wahl, "Der
Vorrang der Verfassung" (1981) 20 Der Staat at 485ff.
12 Bockenforde
of the state on behalf of unpolitical and liberty-serving goals of the individual.
c) From this perspective, it is no leap but just a logical step to asserting the priority
of the political element within the constitution over the principle of the rule of law.
Those regulations which establish the state's organs, shape the state's activities,
and set up the procedures necessary for facilitating and preserving the political
unity's activity, preservation, and defence, prevail over those elements which limit
state activities on behalf of private and societal freedom. For such private and soci-
etal freedom does not constitute anything politically; it does not create the political
association. Instead, liberalization and individualization, originating from the
respective elements of the constitution, amount to a weakening of the political unity
and its underlying homogeneity rather than to a necessary and integrating part of
the political unity.18 Differently put, the constitutional guarantee of the rule of law
must be added to an existing political unity and form. It cannot exist independently
of such a political unity; nor can it achieve efficacy by claiming a general priority
over the political unity. Thus it is only the existing and working political unity which
makes it possible to guarantee individual rights and liberties; it is the political unity
which protects and maintains them in the face of human endangerment and vio-
lation."
4. Constitutional jurisprudence and the "Guardian of the Constitution"
a) From the perspective of the concept of the political, we can make sense of Carl
Schmitt's general thesis that a genuine constitutional jurisdiction is a political juris-
diction.20 Recall that constitutional law, with respect to its content, is political law.
It is political law not only in the sense that law always has to deal with politics by
regulating and shaping coexistence within a political unity; rather, it is political
in the sense of defining the conditions, procedures, authorizations, and limits of
18. This is not in contradiction to Schmitt's thesis in Legalitat und Legitimitdt (1932) at 87f that,
in the face of the crisis of the Weimar Republic, the second main part of the Weimar constitution
should be preserved and purged of the contradictions and fictions of a merely technical and func-
tional system of legality to which thefirstpart had developed. Given that the second part of the
constitution contained not only liberal basic rights (in the sense of private and societal rights)
but also "orders of community life," that part of the constitution could become effective only
within the framework of a working "political" order whose restoration Schmitt therefore demands.
19. It is the common conviction of political philosophers as different as Thomas Hobbes and
Immanuel Kant that the state and the concentration of sovereign power established by the state
are necessary to protect the individual against the dangers and threats by their fellow people.
See T. Hobbes, Elementa philosophica de cive (Oxford: Clarendon Press, 1983) at chs. 5 and
6-7; T. Hobbes, Leviathan (New York: Cambridge University Press, 1991) at ch. 17; I. Kant,
Metaphysik der Sitten (New York: Cambridge University Press, 1991) at Part I, § 44; I. Kant,
Ideen zu einer allgemeinen Geschichte in weltbiirgerlicher Absicht vol. 9, ed. by Weischedel,
at 40f.
20. C. Schmitt, Das Reichsgericht als Hiiter der Verfassung (1929) (in Verfassungsrechtliche Aufsatze
(1958) at 73ff and 97ff) (hereinafter Reichsgericht)-, C. Schmitt, Der Hiiter der Verfassung (1931)
at 26-34.(hereinafter Hiiter) By constitutional jurisdiction Schmitt means juridical decisions of
constitutional conflicts in the original sense, that is, conflicts which concern the gravitational
field of the political, such as the struggle for, as well as the maintenance, stabilization, and ques-
tioning of, political power and its execution.
state activities as well as the options and authorizations for maintaining and pro-
tecting the political unity of the state.21 Accordingly, constitutional law, in its very
content and telos, refers to the political from which in turn it receives its own def-
inition. It is with regard to this political definition that constitutional law must be
interpreted and applied; moreover, this interpretation and application itself is part
of specifically political conduct.
Consequently, constitutional jurisdiction cannot be a pacified realm detached
from political dissociation and the corresponding dangers, an idea suggested by
the concept of a jurisprudence obedient to determinate laws which themselves are
enacted in the course of political debate. Such an unpolitical jurisprudence deals
with laws only after they have undergone the process of political will-formation
and decision. Given the result of that decision, these laws are generally detached
from (potentially) political dissociation and are to be interpreted and applied with
regard to their determinate content. Being obedient only to the law and, beside that,
fully independent, the judge himself does not become a political actor."
Constitutional jurisdiction, by contrast, has to decide over the content and inter-
pretation of constitution law, i.e., that law which determines and procedurally reg-
ulates the political unity and its capability of action. It therefore necessarily falls
into the gravitational field of the political, in which associations and dissociations
are potentially present which can ignite into conflict. If constitutional jurisdiction
takes on its task in an appropriately teleological way, it is inevitably "political"
jurisdiction, which—to avoid a misunderstanding—does not mean that it is bare
party politics.
b) For Carl Schmitt, a court operating in accordance with the standards of ordinary
jurisdiction cannot serve as the guardian of the constitution.23 Why not? Again The
Concept of the Political gives a hint. A court, as it has developed in the history of
European constitutionalism, is—in its task, function, and the self-understanding
of its actors—detached from the gravitational field of politics. It works only on
request (no judge without plaintiff); it is bound by the claims brought forward (ne
ultra petita); and it operates in obedience to norms which are not to be created by
the judge but are, as a rule, given in legally defined statutes. The court has to apply
law without being required or permitted to pursue more general political goals or
purposes. The guardian of the constitution, by contrast, must act as a political
organ.24 Given that the constitution shapes the legal form of the political unity, the
guardian of the constitution is at the same time the guardian of the political unity
21. E.-W. Bockenforde, supra note 7 at 320f.

22. Within the framework of the political system, the judge is called upon to interpret and apply laws
independently of a possible former political struggle over their content. Rather than "making
politics with different means," he has simply to refer to the context of the existing legal order.
Exactly this is the "political" Character of his task and role. See Niklas Luhmann, "Funktionen
der Rechtsprechung im politischen System" in Dritte Gewalt heute? Schriften der Evangelischen
Akademie Hessen Nassau vol. 4 (1969) at 9f; E.-W. Bockenforde, Verfassungsfragen der
Richterwahl (1974) at 89ff.
23. C. Schmitt, Guardian, supra note 20 at 48ff; Carl Schmitt, Reichsgericht, supra note 20 at 97ff
including the postscript at 108.
24. Hiiter, supra note 20 at 132ff.
14 Bockenforde
itself. This derives also from Carl Schmitt's understanding of the relationship
between state and constitution.25
Incidentally, the question may arise to what degree during the Weimar Republic
Carl Schmitt and Rudolf Smend might have agreed on this point. If one carefully
reads Smend's Constitution and Constitutional Law, one will notice that consti-
tutional jurisdiction is never mentioned in that book. The constitution does not
appear as a part of the legal system upheld by jurisprudence and jurisdiction; it
rather regulates the process of integration in which the state receives life and reality.
The legal function and the legal system, including jurisdiction, are consciously sep-
arated from the system of state power, because they pursue an idea of value that
differs from the political integration brought about by the state.26 Also what Smend
writes about the peculiar goals of constitutional interpretation, that is, maximization
of integration and flexible adjustment of the constitution itself,27 does not refer to
a court. That process of integration which is undertaken by the state and whose
order also forms a part of the constitution is not to be guaranteed by a court.
5. Independence and relative separation of the political sphere from private

and societal spheres
If I understand Carl Schmitt's theory of the state correctly, a bright line running- „
through his work is the thesis that, for preserving the political unity, the political
sphere must be concentrated with the state and its organs; hence the state must hold
the monopoly of the political. This becomes manifest in three aspects:
a) Basic liberties constituting an autonomous realm not regulated by the state belong
only to the private, unpolitical sphere. Their spilling over into the political sphere
must be rejected in order to avoid the decomposition of the political sphere, a
decomposition by which state organs would become instruments of private and
societal self-manifestation.
The place basic liberties occupy within the general structure of Constitutional
Theory confirm this theory.28 Basic liberties in the sense of prepolitical and trans-
political human rights are confined to the individualistic rights of freedom in the
strict understanding, i.e., the rights of the isolated individual which define and pro-
tect his private sphere. Among these rights are the rights of faith and conscience,
personalfreedom,inviolabiUty of the private home, secrecy of the post, and private
property. The next group of rights which combine the rights of one individual with
those of another—freedom of opinion, expression, and the press,freedomof assem-
bly and association—harbour a certain ambivalence in that their social character
marks the transition to the political sphere. According to Carl Schmitt, these rights
must be considered as genuine basic rights "insofar the individual does not leave
25. Ibid, at 2.
26. R. Smend, Verfassung und Verfassungsrecht (1928) at 98 and 152f.
27. Ibid. at78ffandl37ff.
28. See Verfassungslehre, supra note 1 at 163-70, esp. the schematic overview at 170.
the merely societal realm and free competition and free debate between individuals
are to be acknowledged."29 However, these rights can easily lose their "unpolitical
character"(!) and then cease to be individual rights of freedom guaranteed as pre-
political freedom in accordance with the principles of constitutional distribution
of rights.30
Clearly separated from these rights are the rights of political participation. They
do not belong to the individual as a prepolitical subject of private interests, but
address him as a member of the political people, that is, as a citoyen.31 Hence
Schmitt's clear critique of the secret ballot which destroys the public character of
political legitimacy in a democracy because it summons the individual as a private
person (homme) rather than as a member and part of the political people (citoyen);
it thereby harbours—and this is the half-explicit crucial point in the critique—the
danger of decomposition of the political unity which itself thus remains unprotected
against its being overwhelmed by private and societal interests.32
b) The state cannot be prevented from intervening in those spheres of basic liberties
which may become politically relevant by immediately affecting fundamental pre-
conditions of the political unity, such as a relative homogeneity of the people. From
my first reading of Constitutional Theory I still remember the following remark:
The political problem of cinema movies influencing the masses is so important that
no state can leave that powerful psycho-technical machine without control. The state
must neutralize it politically. Given that the political is inevitable, neutrality means
that the state must employ cinema movies to serve the political order, even if the state
may lack the courage needed to openly use them as a means of integration on behalf
of a socio-psychological homogeneity.33
The concrete context of this remark is the justification of a caveat on behalf of pos-
sible censorship of cinemas movies, a caveat enshrined in die Weimar Constitution
(Article 118, Sec. 2) and actually implemented in a law of 1920. In Schmitt's essays
from 1932 and 1933, the years of the Weimar Republic's final crisis, his statements
are even more outspoken. The background might be the practical experience of
mass manipulation by the new media. Schmitt now writes that, however liberal a
state might be, it can never afford leaving those new means of mass manipulation
and of building a public collective opinion to another institution.34 Schmitt implicitly
(though not explicitly) holds that otherwise the state would surrender itself and
29. Ibid, at 165.

30. Ibid.
31. Ibid, at 168ff.
32. This criticism first appears in Die geistesgeschichtliche Lage des heutigen Parlamentarismus
(2d ed., 1926) at 22f. (hereinafter Geistesgeschichtlich Lage). In a succinct and straightforward
way it is repeated in the article "Der burgerliche Rechtsstaat", Abendland (1928) at 202, as well
as in Constitutional Theory, supra note 1 at 245f. The critique voiced in "Geistesgeschichtliche
Lage" has explicitly been approved by R. Smend, supra note 26 at 37 footnote 4.
33. Verfassungslehre, supra note 1 at 168.
34. C. Schmitt, Weiterentwicklung des totalen Staates in Deutschland (1932/33), republished in his
Verfassungsrechtliche Aufsdtze (1958) at 360; see also Machtposition des modernen Staates (1933)
at 368f.
16 Bockenforde
cease to exist as a political unity. One could be tempted to apply this insight to con-
temporary media like the TV; but this would be another article.35
A second remark can be found in a contribution to the Handbook of State Law.
(Carl Schmitt was always proud of that remark and of the fact that Rudolf Smend
had immediately noticed and appreciated it.) In his article Schmitt categorizes
Article 135 of the Weimar Constitution as freedom of religion and—in opposition
to Anschutz—not as freedom of an anti-religious conviction.36 The state, concerned
with the relative homogeneity of the people as the precondition of its own existence,
cannot remain completely neutral—in the sense of agnosticism—with regard to
religion or non-religion.
c) Economic and social interest groups must be confined to their specific realm
and prevented from taking control over political functions of the state which itself
must be shielded against political pluralism. For Carl Schmitt, political represen-
tation of organized interest groups is impossible. Political influence of interest
groups leads to a weakening or questioning of the state as a political unity—unless
and until these groups take direct political responsibility as bearers of political deci-
sions.37 A stato corporativo would have been conceivable for Schmitt. Such a state
rests on the constitutional recognition of guilds, unions, or other organized groups
as bearers of political decision and political responsibility. What Schmitt had to
criticize and actually did criticize was the occupation of the political by indirect
powers, be it socio-economic or religious and denominational powers, which for
instrumental purposes extend their grip to political functions of the state without
being held accountable for political decisions.38 Hence his principled opposition
to every kind of potestas indirecta, including that of the church.39
6. The necessity of a "pouvoir neutre" within the state
For the political unity of the state to be preserved and realized, an encompassing
point of reference is needed which itself must be willing and able to achieve agree-
ment and integration of conflicting and antagonistic interests. This is the task and
35. See the impressively sober and well balanced analysis by K. Eichenberger, "Beziehungen zwis-
chen Massenmedien und Demokratie", Festschrift Leo Schiirmann (Freiburg/Switzerland: 1978)
at 405ff.
36. C. Schmitt, "Inhalt und Bedeutung des zweiten Hauptteils der Reichsverfassung", Handbuch
des Staatsrechts vol. 2 (1932) at 584; G. Anschutz, Die Verfassung des deutschen Reiches vom
11. August 1919, 14th ed. (1933) remark 4 with note 2 referring to art. 135.
37. See Der Begriff, supra note 4 at 40-45; also C. Schmitt, Staatsethik und pluralistischer Staat
(1930); C. Schmitt, Positionen und Begriffe (1940) at 133ff and esp. at 136-42.
38. C. Schmitt, Huter, supra note 20 at 71: "Pluralism, however, means a majority of organized social
power, running across different areas of the state as well as across the boundaries of countries
or municipalities. This social power, although lacking the quality of a state, nevertheless manip-
ulates the will-formation of the state."
39. C. Schmitt, Der Leviathan in der Staatslehre des Thomas Hobbes (1938) at 117: "It is essential
for an indirect power that it blurs the relationship between command and political danger, power
and responsibility, protection and obedience. Being unaccountable in its indirect and yet effective
exercise of power, it takes all the advantages of political power and avoids all its dangers."
role of a pouvoir neutre.40 It is needed in order to avoid the escalation of conflicting

interests and other potential antagonisms to a friend-enemy-grouping and hence
a threat to the political unity itself. Li establishing the state order as a unity of power
and peace, one does not abandon once and for all the possibility of political dis-
sociation; depending on various circumstances, its poisonous potential can always
reemerge. To prevent this, one needs a policy of order and agreement on an encom-
passing scale. Such a policy, however, can not be conducted by political forces that
are tied to particular (though legally permissible) antagonistic interests.
In his book Guardian of the Constitution Carl Schmitt looks for such a pouvoir
neutre which he finally finds (within the Weimar state) in the public service and
in the Reich's President.41 Whether this assessment still holds for the final phase
of the Weimar Republic is a quaestio facti [question of fact]. What I am interested
in here is the quaestio iuris [question of law], namely, the inevitability of such a
pouvoir neutre—whatever its actual constitutional location—for the maintenance
and capability of action of any state order.
7. Carl Schmitt's concept of representation
Although Carl Schmitt's concept of representation is difficult to understand and

would require another paper, I shall not skip the problem here. In Carl Schmitt's
work, representation always relates to the political unity of the people, i.e., the state;
it does not mean representation of the society vis-a-vis the state or representation
of interests within the society. Moreover, the subject of representation is not the
people in the state but, rather, the politically united and organized people which
is the state itself.42 Obviously, this derives from the idea that only the state as such,
that is, the political unity, is capable of representation and that any other represen-
tation than that of the state would necessarily dissolve the political unity.
It is possible that the concept of representation—which, as far as I can see, Carl
Schmitt for the last time mentioned in Constitutional Theory—did not find a defini-
tive theoretical formulation. One can follow various stages within the development
of this concept, with different nuances and different formulations. The concept
occurs first in Roman Catholicism and Political Form, later in a lengthy footnote
in The Crisis of Parliamentary Democracy, finally and in detail in Constitutional
Theory (here also within a debate with Rudolf Smend).43 (Leibholz's habilitation
thesis on representation appeared only in 1929 and thus was not yet available when
Schmitt wrote his Constitutional Theory.)
One has to take into account that representation of societal interests and groups
40. Huter, supra note 20 at 114f, 132ff.

41. Ibid. atl49ffandl56ff.
42. Verfassungslehre, supra note 1 at 212 and 210.
43. Romischer Katholizismus undpolitische Form (2d ed., 1925) at 25ff (referring to personal dignity
and representation of a spiritual principle); Geistesgeschichtliche Lage, supra note 32 at footnote
3 to 43 (applying representation to the political realm); Verfassungslehre, supra note 1 at 204-
16 (development of representation as a constitutional concept).
18 Bockenforde
constitutes a problem for the concept of representation, as it is elaborated in

Constitutional Theory; representation of interest groups is not even considered.
Another problem is democratic representation by which the citizens are represented
in terms of what they have in common in order to achieve political unity.44
Representation is conceived of in a rather static way; it means representation of
something invisible and yet real, which thereby is made visible.45 Representation
thus appears like a picture of something already present rather than a process of
actively bringing about unity and a conscience of commonality.46
On the other hand, in a chapter of Constitutional Theory one also finds the
insight that the political unity of the people is not naturally given but rather is the
object of political efforts: "Every political unity must in some sense be integrated,
as it is not given by nature but rests on human decision."47 This statement comes
close to Rudolf Smend's doctrine of integration from which it differs, however,
in that integration in the Schmittian sense always derives from decision. Schmitt
further writes: "Representation brings about unity, yet what it brings about is always
the unity of a people in its political state."48 Here the stress very much lies on active
conduct, which means that representation, properly speaking, is reserved for gov-
ernment agents since only they can be active. To put it more precisely, it is gov-
ernment in the strict sense, not administration, because representation is reserved
for those who epitomize and concretize the spiritual principle of political existence.49
In this context, Carl Schmitt cites Lorenz von Stein. But he also mentions the 19th
century dualism of two representations, a representation of the people vis-a-vis
the monarch who himself was to represent the state as a whole, especially in foreign
affairs and international diplomacy.50 Does this mean that the former was no rep-
resentation at all, not even an element of representation? Another question is how
to conceive of democratic representation. This question occurs because represen-
tation, as a constitutional concept, always refers to the state unity as an entirety.
If this is the case, however, one has to wonder how representation of the people
within the state or within parliament is conceivable. It seems to me that in this regard
many questions remain open and await an answer which I cannot provide here.
III.
Conclusion: The purpose of this essay was to display Carl Schmitt's Constitu-
tional Theory, not to argue critically about it. I have tried to analyze this work
44. See E.-W. Bockenforde, Demokratie und Reprdsentation (1983) at 21-26.

45. Verfassungslehre, supra note 1 at 209: "Representation means to render something invisible pub-
licly visible and hence present." See also ibid, at 207.
46. On the process of representation, see M. Draht, "Die Entwicklung der Volksreprasentation"
(1954), H. V. Rausch, ed., Zur Theorie und Geschichte der Reprdsentation und der
Reprdsentatiwerfassung (1995) at 260ff (esp. at 275ff and 292ff).
47. Verfassungslehre, supra note 1 at 207.
48. Ibid, at 214.
49. Ibid, at 212.
50. Ibid, at 21 Of.
and—against the common charge of occasionalism**—to demonstrate its logical

consistency from a systematic point, a point that seems indeed fundamental to me.
The question of whether the basic concepts, distinctions, and assertions of Schmitt's
theory are appropriate for an understanding of the reality of state, state life, state
existence, and state order so far has only been raised and not yet answered. It seems
to me that this question should be debated on the basis of a systematic analysis
of Schmitt's work. Let me conclude by hinting at two aspects which I consider cru-
cial for such a debate. The first aspect concerns the question of whether Schmitt's
criterion of the political and his concept of the state as a political unity are right.
The second aspect concerns the importance of liberty—individual as well as polit-
ical liberty—for the unity and order of the state. Is Schmitt's definition appropriate
or is it not—especially in view of the establishment and development of a relative
homogeneity and soUdarity of a people as the basis of the state's unity and capability
of action?
** Translator's note: Bockenforde here alludes to an article by Karl Lowith who accuses Schmitt
of propagating a radical political decisionism (= occasionalism) by which the very continuity
of time and experience is dissolved. See Karl Lowith, "Der okkasionelle Dezisionismus von C.
Schmitt" in Gesammelte Abhandlungen. Zur Kritik der geschichtlichen Existent (Stuttgart:
Kohlhammer, 1960) at 93-126.

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5

The Concept of the Political:

Canadian Journal of Law and Jurisprudence Vol. X, No.l (January 1997)

2. The central message as well as the academic significance of Schmitt's concept

b) However, against a widespread misunderstanding, I should emphasize that the

of an escalating friend-enemy-grouping, it is present also within the state, even

/. The concept of sovereignty and its unavoidability in constitutional law

8. C. Schmitt, Politische Theologie, 2d ed. (1934) at 11.

situations—hinder the full elaboration of sovereignty is a different question. Limits

2. The relationship between state and constitution

It is a premise of Carl Schmitt's political thought that it is not the constitution

3. The constitution and its elements

15. Ibid, at §3, 20 and 21-23.

of the state on behalf of unpolitical and liberty-serving goals of the individual.

4. Constitutional jurisprudence and the "Guardian of the Constitution"

21. E.-W. Bockenforde, supra note 7 at 320f.

5. Independence and relative separation of the political sphere from private

29. Ibid, at 165.

6. The necessity of a "pouvoir neutre" within the state

role of a pouvoir neutre.40 It is needed in order to avoid the escalation of conflicting

7. Carl Schmitt's concept of representation

Although Carl Schmitt's concept of representation is difficult to understand and

40. Huter, supra note 20 at 114f, 132ff.

constitutes a problem for the concept of representation, as it is elaborated in

44. See E.-W. Bockenforde, Demokratie und Reprdsentation (1983) at 21-26.

and—against the common charge of occasionalism**—to demonstrate its logical

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