The Dualities of Law and Political Sovereignty in Hayek and Schmitt

Continuing a discussion from the post before last

Political sovereignty has the duality of the continuity of sovereign power, and the singularity of sovereign power, which can be understood from the discussion of law and legislation in Schmitt and Hayek. Their preference for law, and a tendency to think of sovereignty as arbitrary where it is not constrained by law, limits their exploration of political institutions and forms even though they have a great deal to say about such topics. What is said is oriented by a tendency to think of politics as pulled between two non-political or pre-political poles: ideal law and the violence of sovereignty. This is not just a complete gap for either Hayek or Schmitt, but there is a notable constraint. The constraint still allows the reader to use their analyses to consider political institutions, as formed by the tensions between law and legislation; regular sovereignty and absolute sovereignty.

The law-legislation distinction and the regular sovereignty- absolute sovereignty distinctions suggest that political and legal institutions cannot be derived from, or reduced to, pure principles of law and sovereignty. Exercises in ideal theory, engaged with projects of reduction and deduction will continue, but examination of the dualities of law and sovereignty should lead us to see that such exercises, however valuable, are limited by their formalism. The aspects of legislation and arbitrary sovereignty should not just be exiled from political theory as history, sociology of power, or empirical  politics. The ideal aspects of sovereignty law only exist as concepts in history, in political and social contexts, which condition how they are understood and which change over time. The work of the Cambridge School has deepened the understanding of the historical context of political theory over the last few decades; and overlaps to some degree with the work of Reinhart Koselleck, itself influenced by Schmitt. The importance of such work is not just in a strictly delimited field of history of political theory, or ideas, but in drawing attention to the tensions within the status of political thought as concerned with abstract concepts, and historical context, the ideal and the empirical.

We cannot hope to fully understand the theories of the political thinkers of the past, without reference to historical  context, and recognition of this interpretative reality has been increasing. We cannot isolate the political theorists of the present, or the recent past, from such consideration, at least not to form the fullest possible judgement of their work. Schmitt and Hayek provide important indications of how to bring context to political theory, particularly with regard to recognition of inner tensions around the attempted exclusion of the non-ideal and non-normative.

The way that the link between Hayek and Schmitt around the law-legislation distinction has been largely ignored by those with a sympathetic interest in Hayek’s ideas, and treated as proof of lurking authoritarianism in Hayek, and associated thinkers, by commentators of an anti-capitalist inclination, is itself part of the ambiguities. Recognising the influence, at least in one area, that Schmitt had on Hayek is discomforting on the Hayekian side, because of a strong anti-political streak which has origins in Hayek himself, though that is never his complete position, and which makes Schmitt’s emphasis in some of his most famous passages on the arbitrariness of sovereignty, deeply threatening. The anti-capitalists who ‘expose’ the Schmittian wolf in Hayek, the liberal sheep, themselves have an anti-political streak around the belief that the political sphere is an instrument of class interests, and that politics is tainted by economic domination. We cannot get beyond these exclusions and moralising condemnations, without a full appreciation of the law-legislation distinction in Hayek and Schmitt, and its impact on the understanding of political forms.

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