The Dictatorship of the Reich according to Article 48 of the Weimar Constitution
The Appendix is a text of 1924, in which Schmitt addresses the issue of the special powers that the President of the he first German republic could invoke and gets into more general questions of the nature of dictatorship and modern sovereignty. The relevant background presumably, is the troubled birth of that first republic, the Weimar Republic or Weimar Germany, out of defeat in the First World War, followed by attempts at Bolshevik style revolution and repressive actions by far right militias, in co-operation with the elected social democratic government, but involving its own attempt at a far right seizure of power.
The President at the time Schmitt presented this text was Friedrich Ebert, the social democratic leader. At this time the German Social Democratic Party was in principle Marxist, and continued to be until the 1950s, but of course had split with supporters of the Bolshevik Revolution during the World War One, and even before that increasingly looked like a party that was Marxist revolutionary in principle, but reforming of capitalism in practice. Anyway, it is interesting to think that Schmitt wrote a text on the powers that might be used by socialist leaning president.
The text may also look prophetic, with regard to German history and Schmitt’s own life since he was a lawyer for the German Chancellor Franz von Papen, under Ebert’s successor, the considerably more conservative Paul von Hindenburg on the issue of interpreting article 48. As a lawyer arguing on behalf of the von Papen, Schmitt defended martial law measures in the state of Prussia which had a radical effect on the rights of the Social Democratic state government, the National Socialist opposition and others.
This reflects Schmitt’s attitude to the National Socialists who regarded as dangerous and extreme, that is his attitude before they came into government, at which point he was happy to join the party and become head of the National Socialist jurists’ association from 1933 until 1936, when interested people in the SS denounced Schmitt as an opportunist, not a Nazi by conviction, who had not developed a racially based theory of law. Schmitt stepped down from his ‘Crown Jurist’ role but continued an academic career and wrote texts, which are at least accepting of the National Socialist regime. Since the Schmitt relationship with the Hitler regime lies some years ahead of the texts I am discussing, I won’t have anything further to say about it, but of course for Schmitt’s thought and career as a whole it adds something very important with regard to sovereignty and dictatorship in all forms.
The text on Article 48 mixes rather specific comments on German law of that time with more general comments on the use of special powers. I won’t attempt to reconstruct the argument with regard to the interpretation of the German constitution and will confine myself to discussing the more general aspects. Schmitt appears to regard the president of a republic as necessarily lacking the sovereignty of a king (presumably of the type preceding notions of the sovereignty of representative assemblies, though elsewhere, Nomos of the Earth from the 1950s I believe, Schmitt does suggest that in Medieval/Early modern thought laws passed by an assembly have more weight than those that are edicts of the king).
Anyway, here Schmitt assumes that the king in strongest sense has a kind of sovereignty which covers the creation of law. A properly formulated republican constitution will have provisions for an emergency situation where parts of the constitution are suspended, but will not allow the destruction of the constitution. Schmitt’s classic case for the latter outcome is the seizure of power by Louis Napoleon Bonaparte, who became President of France under the 1848 constitution, and succeeded in abolishing the republic so that he became Emperor Napoleon III.
In general Schmitt seems to be a great believer in preservation, even if his ideas about preserving the Weimar Republic allow a big movement towards commissary dictatorship. The sovereign individual is a feature of the traditional monarchical system (not sure how well this fits with Schmitt’s emphasis on respect for law and custom within a monarchy, if the monarch can easily command it out of existence). Otherwise the idea of a sovereign individual is a monstrosity.
The head of state in a republic, or the head of government acting in the name of the head of state, can and should preserve the republican regime, through exceptional measures. The moment of implementing exceptional measures is a revealing moment, because it reveals where sovereignty lies, similar to the suggestion in Political Theology that the sovereign is the one who decides on the state of exception. In the context of a (presumably democratic) republic, that appears to mean the head of state in association with anyone else who may have some major say in the highest matters of state, the president alone, the president with prime minister and cabinet minister, or the president with cabinet.
Making a regime work in a way consistent with the basic principles of its constitution appears to be a very high political good, maybe the highest. However, the exceptional measures are just that, ‘measures’ rather than ‘laws’. Measures are tied in Schmitt’s argument to government commands tied to a factual situation, while laws are universal in application and not just introduced for special circumstances. The idea of measures becoming law is a negative one in other texts in Schmitt, and for him it is part of the problem of liberalism, which is not careful with the distinction and creates an administrative state that undermines liberty, something that in Schmitt’s thinking is very tied to deep customary principles and historically embedded orders with society that develop independently of political will.
Next and last post in this series will be general comments on Schmitt
(The above refers to:
From the origin of the modern concept of sovereignty to proletarian class struggle
Translated by Michael Holzel and Graham Ward
Cambridge: Polity Press, 2014)