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The Challenge Of The Exception: A Study On Carl Schmitt's Theory Of State Emergency Powers

Posted on:2010-04-11Degree:DoctorType:Dissertation
Country:ChinaCandidate:D M WangFull Text:PDF
GTID:1116360278454307Subject:Political Theory
Abstract/Summary:PDF Full Text Request
The contemporary world has stepped into a globalized risk society in which the emergent events will occur anywhere at any time. In abnormal conditions what power should a state centralize and expand to handle emergent events with the result of furthest protecting citizen's rights and maintaining rule of law while preventing and minimizing the risk of abusing power? It is a challenge. The famous German specialist in public law and political thinker Carl Schmitt, who becomes both celebrated and notorious for his arguments of "the political grouping of friend and enemy" and explanation of Article 48 of the Weimar Constitution, asserts that the liberal democracies are incapable of handling state of exception.The events of September 11 cause fierce debates on the question of state emergency powers. Carl Schmitt and his theory of state emergency powers are topics all the debaters cannot evade in the debates. Whenever both the scholars of the state emergency powers theory of Republicanism and the scholars of the state emergency powers theory of Liberalism discuss it, they mention Carl Schmitt and his theory of state emergency powers. They assert that their theories can solve the predicament of relationship between citizen's rights and state emergency power to handle the challenge of the exception and offer a response to Schmitt's challenge. But nearly all the involved scholars are criticized either for acceptance of the prerequisite hypothesis of Schmitt's theory or for leading to his conclusion. So the dissertation points out reexamining the basic understanding of Schmitt might be a feasible way to escape the predicament. On the basis of Schmitt's texts and arguments of "Sovereignty decides on the exception", the dissertation establishes a framework reflecting sovereignty's decision on the exception on both domestic level and international level and sets Schmitt's theory of state emergency powers in it. The purpose of the dissertation is to seize his basic arguments and achievements of emergency theory, to reveal the essence and problems of his theory, to make contribution to the response to the Schmitt's challenge and to offer some inspirations to the further development of emergency powers theory and practice in post-"9.11 "times on the basis of reexamining and reconstructing Schmitt's theory of state emergency powers.The dissertation is of two basic arguments: the first one is that the exception elaborated by Schmitt is a kind of political state of exception and that his theory of emergency power is the doctrine of reason of state on the basis of reason of state existence and self-defending principle; the second is that the state of exception argued by the scholars of the theory of emergency powers in post-"9.11 "times is non-political state of exception caused by the attack of terrorism. So these state emergency theories are the theory of legal state of exception. Due to this point, we should rethink the way they respond to Schmitt's challenge. Accordingly, the dissertation is doing two jobs no one in the academic field has done.Firstly the dissertation elaborates the basic contents of Schmitt's theory of state emergency powers. The first chapter gives a brief introduction of Schmitt's life and main works together with the evolution of his concepts of state of exception and state emergency powers. The second chapter expounds Schmitt's claims on state emergency powers in the state of exception: it should allow the sovereignty unrestrictive powers to decide on the state of exception. In the state of exception the president must be empowered the unrestrictive emergency power to watch constitution. Both the parliament and ministry of justice cannot defend constitution in the state of exception. With the purpose of defending state and constitution in the state of exception, the president as special legislator must be authorized the powers of legislation which might infringe constitution. The third chapter probes into Schmitt's affirmations of citizen's rights in the state of exception. Based on Article 48 of the Weimar constitution and his division between "constitution" and "constitutional law", he affirms that in order to defend both state and constitution in crisis the range of citizen's rights which Weimar president can suspend and even terminate might be in excess of the 7 kinds stipulated in the Weimar Constitution. For the purpose of justifying Hitler's emergency powers and responding to Strauss' challenge, Schmitt brings forward the thesis by borrowing Hobbes' theory of state: citizen's natural rights and social organizations' rights of constitution and law must be controlled and even denied in order that the state is powerful enough to carry despotism into execution in the state of exception. The fourth chapter sets forth Schmitt's propositions about rule of law in the state of exception: the parliament is incapable of handling crisis and normativism of liberalism along with rule of law in the sense of positivism cease to the exception; there is no rule of law in the sense of normativism and positivism but only "rule of law" in the sense of decisions of sovereign and monarch. The fifth chapter elaborates Schmitt's theory of state emergency powers on the international level: on the grounds of the theories that human-being is dangerous; that the world is in the natural state; that the politic is unavoidable, he claims that war is still today the most extreme possibility; it is of no meaning in compliance with criterion but of the meaning of existence; it has no law; the state can mobilize all its people to attack enemies by way of guerrilla fighting with a view to defending the state. Based on the above-mentioned thesis, the dissertation points out that Schmitt's theory of state emergency powers is like a dagger stabbing into Achillean heel of Liberalism—the state of exception.Secondly, the dissertation sets forth the efforts and responses made by the representative scholars of the main schools of Republicanism and Liberalism in 20th century, especially after the events of September 11. On the basis of the analysis of the theoretical arguments of these schools, it points out that the scholars have got into a predicament and analyzes the reasons. The first and second parts of the sixth chapter elaborate the state emergency power theories of Republicanism and Liberalism respectively. The state emergency power theory of Republicanism affirms that the emergency articles in constitution and emergency laws stipulated in advance can be started up to restrict and control the operation of emergency power. At the same time the supervision of the legislative and the role of the judiciary can be brought into play for the purpose of handling the crisis swiftly and effectively as well as furthest defending the law and citizen's rights. While the emergency power theory of Liberalism asserts that when public officials are convinced that it is necessary for protecting the nation and the public in the state of exception, he can handle and cope with the crisis by adopting extra-legal actions which may exceed the criterion of law or even the constitutional order. But after the crisis "the people"(government, parliament, court, citizen, international community) will decide how to ex-post respond to the actors exercising emergency power (if permitted, awarded and commended; if denied, punished and rebuked). The public officials can be forced to make decisions deliberately by way of ex-post, democratic and social supervision of emergent actions, which may lead to the increase of the cost and the uncertainty of extra-legal actions as a result of eliminating and at least decreasing the risk of abuse of extra-legal actions to achieve the goal of protecting rule of law and regime. From the above, either the emergency power theory of Republicanism or the emergency power theory of Liberalism regards the state of exception after the events of September 11 as a kind of exception of law and advocate handling the state of exception by force of law.But the third part of the sixth chapter points out the prerequisite concepts of the concepts of the state of exception discussed by the arguers after the events of September 11 and the ones talked over by Schmitt are different. Schmitt's state of exception is a political one, but the state of exception discussed by the arguers after the events of September 11 is a legal one. So we should rethink the way they respond to Schmitt's emergency powers theory. Handling the state of exception in the context of "9.11 "is not only a legal problem but also a political, social and cultural one. In conclusion, in wake of the summary of theoretical significance of the dissertation, it points out that it is not appropriate to treat Schmitt's theory of state emergency powers as the theoretical foundation of the theory and practice of emergency powers in the state of exception caused by the terrorism. But his thesis is of significance to the nowadays theory and practice of emergency power and instrumental in finding the questions and shortcomings of the research of emergency powers theory and the practice of handling crisis.
Keywords/Search Tags:Carl Schmitt, State of Exception, State Emergency Powers, the Political, Reason of State
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