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 Stable URL: http://www.jstor.org/stable/3654285 . Accessed: 25/06/2013 19:30
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Carl

Schmitt's of

Political

Theory Representation
Duncan Kelly

I. Political Representation meansthe makingpresentof somethingthatis nevertheless "Representation not literallypresent."' This definition,providedby HannaPitkinin hercelebrated book on the subject,contrastsstronglywith most modem discussions of political representation which regularlydelimit their focus to technicalquestionsof election and accountability.2 Even theoristswho see in representative governmentthe classical virtuesof a necessarily"chastened" (public)authority rely on of notions in the sense of the definition impoverished political representation outlined above.3As Pitkin herself suggested, political representation explores the way in which "thepeople (or a constituency)are present in governmental This paperexamaction, even thoughthey do not literallyact for themselves."4 ines CarlSchmitt's"solution" to this quandary of politicalrepresentation, which that can the of about the suggests representation bring state, but political unity 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. Cf. BernardManin, Adam Przeworski and Susan Stokes (eds.), Democracy, AccounIndividualism tability and Representation(Cambridge,1999); Albert Weale, "Representation, and Collectivism,"Ethics, 91 (1981), 457-65; David Plotke, "Representation is 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,221 f; cf. EdmundBurke, "Speech to the Electors of Bristol"(1774), OnEmpire,Libertyand Reform,ed. David Bromwich(New Haven, 2000), 54f. I Carl Schmitt, Verfassungslehre (Berlin, [1928] 19938), 90; Carl Schmitt, The Conceptof the Political [1932 ed.], trans. George Schwab (Chicago, [1927] 1996), 19.
2

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2004byJournal of theHistory of Ideas, Inc. Copyright

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to Schmitt's In assessing and explaining the centralityof representation often excluded from discussion6-I focus upon his political thought-an area a reconciliation of andthen Hobbesianaccount starkly"personalist" attempted that would justify supportfor the Reichspraisident of representation underthe of WeimarRepublic,with insightsdrawnfromthe constitutional republicanism the Abbe Sieyes thatplaced the constituentpower of the people at the basis of representative democracy.The argument develops andmodifies Bockenfdrde's hypothesis,thatSchmitt'swell-known concept of the political-first presented in a lectureof 1927-provides the "key"to understanding his more substantial constitutionaltheory, Verfassungslehre, publishedthe following year.'Instead, Schmitt'sconcept of representation providesthe key with which to understand his densely structured constitutionalargumentation.8 Therefore,afteroutlining the earlytheologicalandpersonalistrootsof Schmitt'saccountof representation in orderto show his long-standingconcernwith the issue, the centralarguments of Sieyes and Hobbes concerning representationare next outlined, and their impacton Schmitt'spolitical andconstitutional theorydiscussed.9Such a structureplaces in sharprelief the political implicationsof his ideological appropriation of the languageof modem representative democracyin orderto justify supthe for leader. port presidential II. Capitalism,Rationality,and Representation: The Figureof the Representative In his 1923 essay "Roman CatholicismandPoliticalForm,"Schmittclaimed that the technical-economicrationalityof modem capitalismand its dominant political expression, liberalism,stood at odds with the trulypolitical power of
But see Renato Cristi, Carl Schmitt and AuthoritarianLiberalism (Cardiff, 1998), 81, 101ff, 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 fir 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 RevolutionFranqaise, 2 (1925), 487. Carl 7 Emst-WolfgangBrckenf6rde,"TheConceptof the Political:A Key to Understanding Schmitt's ConstitutionalTheory" (1986), in D. Dyzenhaus (ed.), Law as Politics (Durham, 1998), 37-55. SIbid.,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.
6

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the CatholicChurch.10 Schmittwas concernedto illuminatethe particularly "representative"characterof the Catholic Churchas a complexio oppositorum,in contradistinction to its typicalappearance as the unworldly"other" to an ascetic and industrious so as to counterthe "anti-Roman Protestantism, temperthathas nourishedthe struggleagainstpopery,Jesuitismand clericalismwith a host of religiousandpoliticalforces,thathas impelledEuropean historyfor centuries.""' Even the "parliamentary and democraticnineteenthcentury"was an era where Catholicismwas definedas "nothing morethana limitlessopportunism." It was Schmitt'scontention,however,thatthis missed the fundamental point of such a complex of opposites, which was that the "formalcharacterof Roman Catholicismis based on the strictrealisationof the principleof representation. In its particularity this becomes most clear in its antithesisto the economictechnicalthinkingdominanttoday."12Schmittcontendedthat somethingpeculiar to Catholicrepresentation allowed it to "makepresent"the true essence of it. is somethingby "representing" Moreover,because"theidea of representation so completelygovernedby conceptionsof personalauthority thatthe representative as well as the personrepresented must maintaina personaldignity-it is not a materialistconcept.To representin an eminentsense can only be done by a person ... an authoritative person or an idea which, if represented,also becomes personified.""3 Thus, althoughthe Catholic Churchhad cordial relationshipswith a wide andthoughit is even superficiallyattractive rangeof particular administrations, to "irrationalist" it thought, 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 particular regimes, but ratherwith the overwhelmingeconomic rationalityof moderncapitalism." Catholicismis Indeed,"in sharpcontrastto this absoluteeconomic materiality, In an eminentlypolitical."16 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-

Carl Schmitt, Roman Catholicismand Political Form Gary L. Ulmen, "Introduction," [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. 1 Schmitt,Roman Catholicism,3.
12 13 14

10

Ibid., 4, 8. Ibid., 21, 17.

15 Ibid., 24;
16

Schmitt, Roman Catholicism, 12. cf. Schmitt, Concept of the Political, 41-42, n. 17. Schmitt,Roman Catholicism, 16.

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thansimplythemaintenance of legalconcerned witha higher dence," purpose

ity.17

Thehistorical of liberalism, showedanunSchmitt, development thought awareness of the personalist Schmitt's character of politicalrepresentation.'" of that therefore the earlyconception representation suggested specificrationalon the absolute as a complexio "rests Church, ity of the Catholic oppositorum, a this of authority" to or form realisation buttressed assume by "power anyother thispowerof onlybecauseit hasthepowerof representation."'9 Additionally, finds its locus in a form an auof representation particular authority, personal thatimpliesconnotations of dignity andvalue.Hisaccount thority clearlylinks of representation backto earlier theories bodies" of thesovereign,20 andthe"two that"allsignificant whichunderpinned his argument conceptsof the modem of state are the secularized theory theological concepts."21 or"eminent" Schmitt thatsuchsubstantive Correlatively, suggested repre"can in the of sentation the the where locus onlyproceed publicsphere," sphere lies.22 The suggestion also builton his beliefthatthe current sovereignty preof technical-economic dominance was capitalistthinking premisedupon a of individual action. Thefirstinstance of thisprivatization con"privatization" cemedindividual For of belief. the liberalism Schmitt, interdependence religious andthemodemstate-born outof theReformation anddisputes overreligious with rise of the the theoryof toleration-corresponds something approaching individualism" later madefamous Schmitt coun"possessive by MacPherson.23 teredthat"the of in foundation the Catholic Church the juridical publicsphere, contrasted withliberalism's foundation on the private Furthermore, sphere."24 this was elaborated on in his suggestion it that was Protestantism and early variants of Calvinist resistance in fact which had about such theory, brought character: developments, politicsof itsproperly robbing representative
17 Schmitt, Roman Catholicism, 18. See also Carl Schmitt, Legalitdt und Legitimitdit (1932), repr.in his Verfassungsrechtliche Aufsdtzeaus den Jahren 1924-1954 (Berlin, 19583), 263-350. '8Ibid. See also Carl Schmitt,"TheAge of Neutralizationsand Depoloticizations"[1929], trans.J. P. McCormickand M. Konzett, Telos, 96 (1993), 131: "The anti-religionof technicity 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. 20 ErnstKantorowicz,The King'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 JamesTully, "Afterthe MacPhersonthesis," in his Approachesto Political Philosophy: Locke in Contexts(Cambridge,1993), 71-95. 24 Schmitt, Roman Catholicism,29.

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Carl Schmitt The Churchcommandsrecognitionas the Brideof Christ[thepope was Its claim it represents Christreigning,rulingandconquering. its Vicar25]; to prestigeandhonorrests on the eminentidea of representation.26

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the Schmittian "foreshadows As such, McCormickobserves,Weber'sargument has to the presentday looked upon Calvinismas its thesis,"where"Catholicism real opponent.'"27 But the connectionis perhapseven closer. For althoughboth Weberand Schmittcould be said to agree thatthe rise of a particular "type"of in Protestant was the of the so-called result, part, "ethic,"both Berufsmensch diagnosed the largely negative "unintendedconsequences"of its promotion. Schmitt,however, actuallytracedthe contemporary depoliticizedperiodto the Whenappliedto the "distortions" of contemporary influenceof Protestantism.28 he that: government, suggested representative is thatthe memThe simple meaningof the principleof representation of thewhole people andthushave bersof Parliament arerepresentatives 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 means that the personificationof the people and the unity of Parliamentas their at least implies the ideaof a complexio oppositorum, that representative in the of the of It is conceived interests and is, unity plurality parties. ratherthaneconomic terms.29 representative based on delegaterepresentation Contemporary parliamentarism, by partycanon illustrated-at least Schmitt's movementawayfrom didates, presentation30--a It did so by negatingits necessarilypersonalor properlypoliticalrepresentation. eminent character, and Schmittclaimed that the transformation of the modem stateinto a "Leviathan" meantthatit hadactuallycome to symbolize a body that from the world of representations." This is because the theatrical "disappears 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'sCritiqueofLiberalism, 93, note 31; Max Weber, The Protestant Ethic and the "Spirit"of Capitalism [1904-5] trans. T. Parsons (London, 1994), 87. Carl Schmitt's 28 Schmitt, "Age of Neutralizations,"135; Ellen Kennedy, "Introduction: Parlamentarismusin Its Historical Context,"in Schmitt, ParliamentaryDemocracy, xxxix. 29 Schmitt,Roman Catholicism,26. 30 Cf. BernardManin, The Principles of RepresentativeGovernment (Cambridge, 1997).
25
26

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by liberalism and capitalisminto a simple machine.31 As he suggested in the Verfassungslehre: Torepresent meansto makevisible andpresentaninvisibleentitythrough an entitywhich is publicly present... This is not possible with any arbikind of being [Sein] is assumed.32 traryentity,since a particular Liberalismsought "to eliminatethis remnant[the idea of parliamentary representationas a complexiooppositorum]of an age devoid of economic thinking." Instead,parliamentarism simply "emphasisesthatparliamentary delegates are " and emissaries the of the is 'whole' Here, only agents." people 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-intellectual plight of Schmitt's that this There, parliamentarism.34 argumentsuggested downgrading of the centralrole of popularwill stood at odds with the generalprinciplesof hadradipopularsovereignty,andthattechnical-economiccapitalistrationality the properfocus of representative cally distorted government.Indeed,he argued thatcontemporary would to be representation have representation actually against Parliament.35 how such a positioncould be theoretically Tounderstand justified, though,in orderto supporta sovereignrepresentative figure,an accountof how the people couldbe properlyrepresented undera modem democraticstatebased on popular will was required. And Schmittdevelopedsuchajustification through an interpretation of the writingsof the Abbe Sieyes.36 III. Representation, pouvoir constituantand the Positive Constitution: The Abb6 Sieyes At the beginning of his extraordinary work on the subject of constituent power (pouvoirconstituant,Verfassunggebende Gewalt)andthe FrenchRevothat the debate over the origins of the concept lution, Egon Zweig suggested
31 Christopher Pye, "The Sovereign, the Theater,and the Kingdomeof 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, und pluralistischer 209; Carl Schmitt,"Staatsethik Staat," Kant-Studien,35 (1930), 28-42. 32 Schmitt, Verfassungslehre, 209. 33 Schmitt, Roman Catholicism,26-27, emphasis added. Carl Schmitt, The Crisis of ParliamentaryDemocracy [1926 Ed.], trans.Ellen Kennedy 34 (Cambridge,Mass., [1923] 1985). 314f. 35Schmitt, Verfassungslehre, 36 See JohnP. McCormick,"Fear, Technology and the State:CarlSchmitt,Leo Straussand the Revival of Hobbes in WeimarandNational Socialist Germany," Political Theory,22 (1994), 626, 644-45.

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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).37 This 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 to his analysis,andZweig was especially interestedin the impactof importance a conceptionof "reason" principlesin general,and wroughtfromEnlightenment the FrenchRevolutionin particular, on modemdiscussionsof constituent power. CarlSchmitt,too, was considerably exercizedby the impactof the FrenchRevoon lution, but it is this formulationof a split between a positive "constitution" the one hand,andconstitutionallaw on the other,thatbest represents the fundamental basis of his constitutionalthought.It is a distinctionthathas considerable implicationsfor his accountof representation because: ... 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 distinctionsuggestedheremirrors almostexactlythe discussionof the Abbe is not the workof the constituted Sieyes, who wrotethatthe "constitution power, butof the constituent which for was the power," Sieyes Sieyes's formunation.39 lations of the interrelationship between the nation and constituentpower had a profoundimpact on Schmitt'sdiscussion in his Verfassungslehre, providinga detailedtheoreticalancestryto those practicalarguments aboutthe 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 ofMan, to note threeexemplaryconstitutionalmoments.40 For Schmitt,the dichotomywas more fundamental thanthis.41
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. bei Carl Schmitt,"in his 41 Ernst-Rudolf Huber,"Verfassungund Verfassungswirklichkeit Bewahrung und Wandlung(Berlin, 1972), 19.
38

37 Egon Zweig, Die

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The "positive"constitutionis pure constituentpower, and Schmittdefined "constituentpower" simply as "politicalwill." In practice, he continued, the power or authorityto take the "concreteand complete decision [Gesamtentscheidung]"concerningthe "typeand 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 "existential" on which the validityof any constitutionnecesessentially ground sarily 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 "national democracy."43 Accordingto Schmitt,the modern 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. wrote Schmitt,is By the conceptof the "nation," an "individual understood characterised its people by specificpoliticalconsciousness."" The modernnationgives formto the people, andhence theirconstituent areotherwiseunderstoodin democratictheoryas an unorgapower,for the Volk nized "mass" or Hobbesian multitude, capable of making only "yes or no" politicaldecisions.45 Directlyrelatedto the earlierdiscussionof the acclamatory of the Schmitt necessity publicspherefor an adequateaccountof representation, that claimed "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, wrote constitution, Schmitt, every (Jede) necessarilypresupposes the unity andindivisibilityof the constituentpower thatformsit, andafter 1789 this unityhas typicallybeen presentedas stemmingfroma people unifiedwithin a nation-state.47The equationcontinuesto formthe basis of most contemporary assumptionsaboutpopularsovereignty,nationalism,andthe constituentpower of the people.48 Schmitt'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.

emphasis added. Ibid., 277, 251. 46 Schmitt, 243; cf. Kennedy, "Hostis not Inimicus,"46. Verfassungslehre, 47 Schmitt, 49ff. Verfassungslehre, 48 See Bernard Yack, "PopularSovereigntyandNationalism,"Political Theory,29 (2001),
44 Ibid.,
45

524.

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and"above"the constitutionas pureconstituent power.Second,they could exist the constitutionas membersof an electorate,or third,the people could "within" a occupy space "beside"the constitutionas bearersof constituentpower acting mobilization" within momentsof spontaneous formsof popular out"intermediary the normalpolitical order.49 These interrelationships correspondwith and further develop Schmitt'sarthere are in fact two of that only "principles" politicalform-identity, or gument to one or other representation-andthatdifferentstateformsbroadlycorrespond a of of them.50Thus,identitypresupposesthe "unmediated" unity people. Representation,on the other hand,assumes thatalthoughevery state formpresupbetweenrulersandruled,suchidentitycan neverbe "identity" poses a structural sysfully realizedin practice.Similarly,because therecould never be a "pure" tem of representation, the state can only be understoodas a political unity beof these two opposing cause it "originated[beruhen]fromthe interrelationship this that: formalprinciples."''51 on Schmitt wrote thesis, Elaborating The state rests, as a political unity, on the combinationof [these] two opposed transformative principles [Gestaltungsprinzipien]-the prinof ciple 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 thepower of which friendandfoe)-and the principleof representation, is constitutedas political unity by the government.52 can "bringaboutpolitical unity as a whole," because the power Representation of representation applies 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 of the and is therefore Thus,througha sphere political somethingexistential."54 secularizationof the principleof representation, Schmittlinkedthe necessarily criteria of substantive outlinedin the previoussection meaningfulrepresentation to the modem state and the sphere of the political. Correspondingly, he also that in there two of constituentpower; are, fact, suggested principal"subjects" 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. 204-8. 50 Schmitt, Verfassungslehre, 51 Ibid., 214. 52 Ibid., parenthesesmine. 53Ibid., 205; cf. 212. 54 Ibid., 211.

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(unifiedthroughthe nation).This relatesto two mainprinciplesof constitutional legitimacy,eitherdynasticor democratic."Thus,when a monarchis the subject 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 natureand formof 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 those who themselvesdecide. Thatthe outvotedminoritymustbe ignoredin this only causes theoreticaland superficialdifficulties."56 of the bindingcharacSchmittcited Rousseauto supporthis interpretation thatdemocracy terof the volont6generale, andit is crucialto his argumentation of the rulers and ruled,although"thishomoultimatelydependsupon "identity" geneity need not necessarilybe racialor ethnicin origin.In fact, the "substance of[democratic]equality[Gleichheit]can in differentdemocracies,andat different times, itself be different.""57 the nationas a poNevertheless,understanding main conscious and unified the of "substance" litically people certainlyprovides 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. of the relationshipbetween Discussing Sieyes's particularunderstanding 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 alone.It is the government, not the nation,butbelongsto its government nation which is constituted... I see too that the constitutedpower and the constituent the body of the powercannotbe confused.Consequently the of that is to those who are enordinaryrepresentatives people, say trustedwith ordinarylegislation, cannotwithout contradiction and abwith interfere the constitution." surdity
87-90, cf. 81ff. Schmitt, ParliamentaryDemocracy, 25. 228; cf. McCormick,Schmitt's Critiqueof Liberalism, 187, 57 Schmitt, Verfassungslehre, n. 35; Peter Caldwell, Popular Sovereignty and the Crisis of German ConstitutionalLaw (Durham,N.C., 1997), 102. 58 EmmanuelSieyes, "Compterendu de Qu 'est-ce que le TiersEtat? (1789)," in Pasquale Pasquino,Sieyes et l'invention de la constitutionen France (Paris, 1998), 167-70. 77ff, 55 Schmitt, Verfassungslehre,
56

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Basedprincipally on his studiesin politicaleconomy,Sieyes sharply distinguished Such a distincmodem, commercialsociety from the society of the ancients.59 tionprovidedthejustificationforhis "politico-constitutional" assessmentof repand historicaldisresentation.Sieyes stressedthe elementaryincomparability the and the between ancients the modems, outlining vastly different continuity suchas the growthof commerce,agriculture "elements" (contenu)of modernity, and the rise of Europeanstates. He suggested that modem concernswith productionandconsumption, underpinned by the divisionof labor,were fundamenat with the odds ancients' tally conception of the "good life."60Yet, as Sewell between Sieyes's accountof the division of asserts,therewas a correspondence labor in the spheres of both "civil society" and the state. In the former,the "establishment of representativelabor"is the basis of "the naturalincrease of in liberty 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 manifest itself in two differentforms,"andthese differenttypes stronglyresemblewhat Schmittcalled the twin principlesof political form.61The people can eithergovernthemselves in a state approaching a brute,or,basedon the commonadvantages providedby the division dbmocratie of labor,they can submit to a representativeconstitution,to professionalized andautonomous Moreover,given the natural (andbenprogression government. of of the division that "even in the smallest state" labor, Sieyes thought efits) to the needs of society, far less condupure democracyis "farless appropriate cive to the objects of political union."62 abouta "politicalclass,"whilstbuilding Sieyes presagedmodem arguments on Hobbes's desire to constructa new and "rational" account of political sciof political rule.63His idea of representative ence, able to explain the "artifice" as a andpoliticalrule government mediatingelementbetweenmass-democracy conservedthe distancebetween governorsand governedin a moderncommercial society, whilst the avowed goal of the "social state"or etat social was to However, alpromoteindividuallibertythrougha political division of labor.64 he was of the people, Sieyes's though clearly interestedin the representation
59 See Marcel Dorigny, "La Formationde la Pensee lconomique de Sieyes d'apres ses Manuscrits(1770-1789)," Annales historiques de la RevolutionFrangaise, 60 (1988), 29-31. 60 Pasquale Pasquino, "EmmanuelSieyes, Benjamin Constantet le <<gouvemement des a l'histoire du concept de representation modernes>>.Contribution politique,"Revuefrangaise de science politique, 37 (1987), 219-20, 222-23; MurrayForsyth,Reason and Revolution: The Political Thoughtof the Abbo Sieyes (New York, 1987), 138. 61 Emmanuel Sieyes, quoted by William H. Sewell, A Rhetoric of Bourgeois Revolution: TheAbbe Sieyes and Whatis the ThirdEstate? (Durham,N.C., 1994), 90f. 62 Ibid. 63 Forsyth,Reason and Revolution,66f; also Antony Black, "TheJuristic Originsof 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.

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to Rousseau'sdiscussionof the "genarguments developed-in specific contrast eralwill"-a focus on commoninterest.65Dependentupon a specific conception of the nation and the "natural" effects of the division of labor, Sieyes's arguments can be locatedwithinthe contextof a long-running debateaboutnoblesse and the "civic and between virtue" the nobilitybegun relationship commergante in pre-Revolutionary France.66 These debatescontinuedafterthe Revolution with a transformation in the popularimageryof the ThirdEstatethat illustratedits restorativemission and its oppositionto a weak King and parasiticnobility.67 From its miserableposition underthe ancien regime, Sieyes sought to reconstitutea fragmentedbody politic throughthe constituentpower of the nation.Utilizing both religious and technicalimagerySieyes effected a theoreticaltransferral of "themiracleof the of the to "the elective the of body King," body of the represented permanence This was underpinnedby his foundationaldiscussion of pouvoir nation."68 constituant. and Sieyes distinguished betweenpouvoirconstituant, pouvoir commettant, the latter to activities the undertaken pouvoir constitue, referring regular by the ordinaryrepresentativesof the people based on law. The function of pouvoir its legislativeandexecutiveelements,involves the prepaconstitue,in particular ration(confection)of law. Pouvoir commettant andpouvoir constituant"putin the of ensemble rules which place (the Constitution) governthe politicalfoundations [1'tablissement] 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 foundation andlegitimacyof the law andconstitution, whilepouvoir commettantis the power possessed solely by the "people,"as an active citizen at the level of the government. It is the authorizbody,over theirrepresentatives Of the three ing power of the whole citizen body to select theirrepresentatives. forms of power, constitue and commettanttypically refer to the ordinary,nor-

65

Colette Clavreul,"Sieyes et la genese de la representation moderne,"Droits, 6 (1986),

47. Pasquino,Sieyes et l'inventionde la constitution,45; Jay M. Smith, "Social Categories, the Languageof Patriotismand the Originsof the FrenchRevolution:The Debate over noblesse Journal of ModernHistory, 72 (2000), 339-74, esp. 357ff; RichardWhatmore, commerCante," 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 Christopher Hodson, " 'In Praise of the ThirdEstate':Religious and Social Imageryin the French Revolution,"Eighteenth-Century Studies,34 (2001), 337-62; Antoine de Baecque, Early "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.
66

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mal legal order.Pouvoir constituant,however, only appearsin the exceptional or extraordinary situation,eitherin the formationof the nation,or in the selection of "extraordinary" to representthe nation in the ThirdEsrepresentatives tate. Throughthe (electoral) authorizationof pouvoir commettant,the people limit theirown power (se borner)by selectingthose delegateswho will execute real laws. This is the basis of legislative representation, the only form of legitimate representation accordingto Sieyes. The exceptional act of founding the nation, in termsof its position as "theunderlyingcompactedunity of free individuals that established or constituted a public order"is, therefore,pouvoir constituantitself in its purestform. Furthermore, this formationof the nationis a result of "natural law,"in terms of its basis in the division of laborand freedom of (political) associationthat Sieyes perceivedto be at the root of political life.70Hence, the nationcould not be subjectto a "positiveconstitution," for the nation is, in essence, the constitutionitself, incapableof acting against itself because it would be logically contradictory to act againstits own will.71 Private, individuallibertyis the resultof representative because "social the government state does not establish an unjust inequality of rights by the side of a natural it protectsthe equalityof rights inequalityof means."72 In fact, "onthe contrary, butharmfulinequalityof means."73 againstthe natural Alongsidethe distinction between active and passive citizenship, such reasoningdifferentiatedSieyes's focus on the nationfromthatof the Jacobins,andunderscored his concernwith of the the as to "re-totale,"the re"re-presentation" "re-publique," opposed totalizationof society by any one particular In common fashion, his regime.74 feared the of an "ancient" republicanism imposition republicanmodel onto a France,a positionjustified throughhis own science modem, post-revolutionary sociale.75 Schmitttook these ideasup almostverbatimin termsof his discussionof the foundationof the WeimarRepublic. The people, he wrote, had abrogatedthe
70

71
72

Ibid.

See Forsyth,Reason and Revolution,esp. 74-77.

Emmanuel Sieyes, "FragmentsPolitiques," Des Manuscrits de Sieyes, ed. Christian (Paris, 1999), 471. Faur6 73 See Jeremy Jennings, "The Declaration des Droits de l'Homme et du Citoyen and its Critics in France:Reaction and Idiologie," Historical Journal, 35 (1992), 842. 74 Istvan Crisis of the Hont, "ThePermanentCrisis of a Divided Mankind:'Contemporary 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,"Contextualizing Hegel'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 of Classical Republicanismin Eighteenth-Century Baker, "Transformations France,"Journal Modern 73 of History, (2001), 32-53.

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monarchicalprinciple (whose classical illustrationwas the 1814 Preambleto the Restoration BourbonConstitution) regnantpriorto the GermanRevolution, so that the subject of pouvoir constituanthad consequentlychanged.At root, the German"type"of constitutionalmonarchy-whether understoodas organism or as a "juristic" person-stated that the power of the monarchwithin the state clearly stood opposed to the democraticprinciple.76 Indeed,Bdckenfdrde writes that "atbottom the monarchicalprinciplewas simply a historicalfact," albeit one which, after 1918 no longer "stoodup as a political formalprinciple its own legitimacywithinit."77 Thetransformation carrying ofpouvoirconstituant after the GermanRevolution for Schmitt, therefore,was to be understoodin of the Third much the same way as Sieyes had theorized the transformation Estatefrom"nothing," to its new positionas "everything." The ThirdEstateand its membersin the constituentNational Assembly exemplified what has (in a of feudality" "abolition to as the attempted context)beenreferred slightlydifferent in revolutionary France.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 the constituentpowerof the people. He did not delegateshe saw as representing 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.8s With"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 that the 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-WolfgangB6ckenfdrde, "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 andP. Wachsmann(eds.), La sciencejuridiquefrangaise et la sciencejuridique allemande 1870-1914 (Strasbourg,1997), 65-78; ChristophSch6nberger,Das Parlament im Anstaltstaat(Frankfurt am Main, 1997), 70-82. 77 B6ckenfdrde,"German Type of ConstitutionalMonarchy,"89, 93, 95, 103, 111. of Englandand its 78 Forsyth,Reason and Revolution, 89; JeremyJennings, "Conceptions Constitutionin Nineteenth-Century French Political Thought,"Historical Journal, 29 (1986), 65-85, esp. 79f; Pasquino, Sieyes et l'invention, 88. 79 Schmitt, Verfassungslehre, 57; cf. RobertoZapperi,"Sieyes et I'abolitionde feodalit6," Annales historiquesde la RevolutionFrangaise, 44 (1972), 321-51. 21, though cf. 93, emphasis added. 80 Schmitt, Verfassungslehre, 81 Carl Schmitt,Die Diktatur (Berlin [1921, rev. 1928], 19784), 205.

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emanatedfromthem.82 However,only the figure of the sovereignwould be caof the pable representing state as the "politicalunity of a people,"and accountto the was to necessitateSchmitt'sreturn ing for the natureof thatrepresentative writingsof Hobbes. IV. Hobbes and the Personof the State MurrayForsythhas arguedthatHobbes's accountof the modem statewas, like Sieyes's, basedon the "constituent powerof the people"andunderpinned by If Sieyes built on Hobbes, though, Schmittdetera concept of representation.83 mined to combinethe two writers,andto fully understand Schmitt'saccountof the modernstate,Hobbes'saccountof representation mustbe clearlyoutlined.It is a particularlyHobbesian argumentthat Schmitt employs underWeimarto as the bearerof statesovereignty,but supportthe powers of the Reichspraisident 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 "restsuponits 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.85 Hence: "the not in is inimicus the broader sense."'86 enemy hostis, Schmitt's concept of the political built on his discussions of romanticism and sovereignty.87 For 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 execuAs Schmitt'sformulationin Political Theologymade clear, "sovereign tion."88
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."

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is he who decidesupon the 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 remarkably similarto the way Hobbes's sovereign is often discussed as being synonymouswith the state.Furthermore, althoughSchmittattachedgreat to the fact that the is the state importance 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 exists. his And patently given suggestion that all modem concepts of the state aresecularizedtheologicalconcepts,it shouldcome as no surprise thathe turned to Hobbes's discussion of "thatMortallGod"to which we owe ourearthlyallegiance for guidance.89 For Hobbes, properlyaccountingfor the actions of the representative sovof the statebe ascertained. The centralquestionhere ereignallows the character 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.90 And 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 by Fiction."Moreover,"whenthey are consideredas his owne, thenis he called a NaturallPerson: And when they areconsideredas representing the words and actions of an other,then is he a Feigned orArtificiallperson."91Some "Persons Hobbesnoted,"havetheirwordsandactionsOwnedby those whom Artificiall," 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."92 In 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
Schmitt, Political Theology, 37. Noel Malcolm, "The Titlepage of Leviathan, Seen in a Curious Perspective," The SeventeenthCentury, 13 (1998), 124-59, esp. 148. 91 Thomas Hobbes, Leviathan,ed. RichardTuck (Cambridge[1651], 1996), 111. 92 Ibid. 93Ibid., 112.
90
89

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the authorityof the actor If one makes a covenantwith an actoror representer, 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 This is becauseall covenantsbetweenmen, justice establishedby the civil law.94 as natural andbindingin termsof"CivilleLawes" constructs, personsareartificial a "coercive when "and such power thereis none before the exists, only power" erectionof a Common-wealth."95 Althoughcivil laws entrencha generaldesire forpeacefulandcommodiousliving, only a sovereignpowercanoblige (through of theirown actionsin establishinga commonwealth)men to obey the authority them.96Thus, the libertythatmen "denythemselves"upon authorizingthe actions of the personof the Commonwealth-a resultof theircovenantto escape the stateof nature-is therebytransformed into an obligationto obey the sovereign power, for men themselves have authorizedits actions. Even "covenants enteredinto by fear,in the conditionof meerNature,are obligatory."97 The principalconclusion of Hobbes's discussion of attributed action is that a such actionas is performed as the action counts of the author by representative even if the authordoes not physically undertake a particular action. Indeed,the an is that author is "under to take responsibilityfor its occurpoint obligation rence,"because they "own the consequences of the action as if they had performedit themselves."98 Here,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 artificialpersons are "incapableof acting as authors in the distinctive manner of natural persons, and hence of authorisingtheir own representatives." They cannot covenant. Second, there"it for them is and fore, [to speak possible act] ... only if theirwords and actions can validlybe attributed to themon the basis of theirperformance by some other in or licensed to act theirname."99 person collectivity it is clear that Hobbes's accountis so broadthatalmost any entity Although can be a person, his accountof what constitutesa "natural" person is actually limited. in his discussions artificial of Therefore, quite persons-in DavidCopp's those who terms, persons perform"secondaryactions"00-the distinctionbe94Hobbes, Leviathan, 112.
95

96 Ibid.,

Ibid., 100f. 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. 99 Ibid., 14. 100David Copp, "Hobbeson Artificial Persons and Collective Actions," ThePhilosophical Review, 89 (1980), 579-906, esp. 583.

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tween the two main types of attributed action, "whethertruly or by fiction,"is crucial.The theatricalallusions within Hobbes's accountof attribution by fiction have often been discussed.101 However, as Skinnerargues, it is of paramountimportanceto Hobbes's argumentthatthe actions of the state, however, to it. OnHobbes'saccount,artificialpersons-such as bridges be trulyattributed and hospitals--can be trulyrepresented"by a Rector,Masteror Overseer"(or to act in the case of the state,a sovereign),commissionedandgiven the authority This is a voluntary transferof right, and "once you have on their behalf.102 who is now in possession covenanted,you must leave it to your representative, 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 to it on the basis of acts of otheragents. Collectives that has actions attributed act are artificialpersons."'04The state on this readingis a personthatperforms secondary actions. Yet there remains the problem of how such authorization and takes place given the inanimatestatusof the artificialperson in particular, 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 authorization requiredfor actions to be truly (and artificial to attributed not fictionally) personsrequiresthat"suchacts of authorizationmust standin some appropriate relationshipof dominionor ownership And of all the illustraartificial the to with respect personconcerned."'10 purely 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 paramount imporin the tance. For the essence of the commonwealthis embodied figure of the
sovereign.106

This is surely also what Schmitt meant when he suggested that through politicalunitycould be achieved,becausewithoutsuchrepresenrepresentation tationalunity the naturalexistence of diverse human groups cannot have the specificallypoliticalqualityof sovereignty,andwithoutsuchunitythe sphereof of the As Hobbeshadargued,in the formation the politicalitself is threatened.107 state:

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,"ArtificialPerson,"9. "ArtificialPersons and Collective Actions," 583, 595. Copp, 'o4 105 Skinner,"ArtificialPerson," 17f, emphasis added. 106 In general, see Horst Bredekamp,ThomasHobbes VisuelleStrategien (Berlin, 1999), esp. 18-26. 107 Schmitt,Verfassungslehre,210.

101

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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 theirPeace and CommonDefence. And he that carryeththis Person, is called SOVERAIGNE,and said to have SoveraignePower; andeveryone besides,his SUBJECT.I'8 However, as Skinnerpoints out, there is still a difficultpoint at issue here. For of the multitudeinto the "nameof the personengenderedby the transformation is not the soverone personthroughtheiragreementto appointa representative an but the and the state is artificial state," person. Therefore,Hobbes areign gued that the commonwealthis an artificialperson, and "he that carryeththis The Person, is called SOVERAIGNE,and said to have SoveraignePower."'09 sovereign in effect personates or representsthe artificial person of the state. a representative must Because the statecannotauthorizeits own representative, be authorizedby those who stand in an appropriate relationshipof dominion, and who (as naturalpersons) possess the right to undertakethe actions they authorize,to covenant.And it is clear thatin the Hobbesiancommonwealthby of the state) institution,only if the public acts of sovereigns (as representatives have been authorized by the mutualcovenantsof the multitudeto formthe comcan the of the sovereignbe trulyascribedto the people. As actions monwealth, Runcimannotes, the case of stateformationin Leviathanallows "ownership[of in this case the state.Therefore, action]to reside in the thingto be represented," the mutualcovenantsof the multitudemakes "possiblethe fiction thatthey can act as a unit, and commit themselves to the real actions that can maintainthat to fiction.""1How though could the actions of the state to be truly attributable 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 are not authors.Thatis, some may have to them on the basis of actions of persons even though the actions attributed the latter.""' This capturesprecisely the position of formerhave not authorized the stateor commonwealthin Hobbes's schema.It relatesdirectlyto a common that althoughthe actions of the state are trulyattributable sense understanding 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,

120. Skinner, "Artificial Person," 20, 19; Runciman, "What Kind of Person is Hobbes's State?"272; Hobbes, Leviathan, 120-21. 110 Ibid., 273. "' Copp, "ArtificialPersons and Collective Actions," 593.
108Hobbes, Leviathan, 121,

109

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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 However, if parliamentary merely politically representational. representation referredto the division of seats in a chamberon the basis of votes cast, if it is then such a type simply a competitionbetween elites for numericalsuperiority, of representation is nothing"distinctive"-and distinctivenessis a definingfeature of legitimaterepresentation.113 Once again, the circularityof his argument is noticeable.Sovereigntystemsfromthe personalauthority embodiedin a ruler; is tied to the the the political; sovereignrepresents politicalunity of sovereignty a people; personalistrepresentation thereforebrings aboutpolitical unity.This a of which conjoined critiqueof the influence of technical-ecotype argument, nomic thinking on parliamentarism with a deep-seatedbelief in the natureof a as substantial and enabledSchmitt representation personalform of authority, to justify his supportfor the figure of a strongReichspraisident on the basis of Article 48 of the WeimarConstitution.114He justified these arguments theoretically, 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 interrelationship between the constituentpower of the people and political representation properlyconceived-a tense relationshipwhose implicationsare still much debatedin contemporary political theory."15 V. CarlSchmitt'sPoliticalTheory of Representation Theoretically,SchmittsuggestedthatSieyes offereda "democratic" theory of the constituent powerof the people, stemmingfromhis oppositionto absolute whichwas simultaneously combinedwith an "anti-democratic" monarchy, theory of representation and indirectsovereignty.The nub of what Schmitttook from was thereforequite general.I have suggested Sieyes's theoryof representation those pointsof referencethatwere particularly for Schmitt'sinterpreimportant tation and constitutionaltheory.And althoughSieyes's thoughtis not best understoodin isolation from the debates in which it was conducted,Schmittcertainly abstractedfrom these debates to pull out the centralpoints at issue for
112

184. Hobbes, Leviathan,

"3 Schmitt,Roman Catholicism,25. 114See DuncanKelly, TheState of the Political: ConceptionsofPolitics and the State in the ThoughtofMax Weber,Carl Schmittand Franz Neumann(Oxford,2003), ch. 4; David DyzenLessons?"AmericanPolitical haus, "Legal Theory in the Collapse of Weimar:Contemporary Science Review, 91 (1997), 121-34. Anne Phillips, The Politics of Presence (Oxford, 1995). "115

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him.116 This involved a

133

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 of the ThirdEstate in the name of the sovereign union,"a case representatives linked to discussionsof the Frenchfiscal deficit) of puttingthe stateback (neatly in credit."'7 Moreover,when Sieyes himself developedHobbes'saccountof representathatcontinueto undertion, he presenteda powerfulcombinationof arguments of the modem nation-state.Accordpin many assumptionsaboutthe character to Hobbes's account of "the in Leviathan Wokler, ing unity of the representer" paved the way for the understandingof the modem state outlined by Sieyes thatthe represented-that is, the duringthe FrenchRevolution,which "requires 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 But Sieyes adamantlyopposed Rousseaueancritirepresentedby a body.""119 cisms of representation, and "it was of the essence of his plan thatthe nation in for all the assembly spoke people and must never be silenced by the people Sieyes's concepts of the state and the nation underpinnedby themselves."'20 constituent popular powerinformedSchmitt'saccountof the modem stateas the "politicalunity of a people." For this reasonthe notion of representation plays an incrediblyimportant partin Schmitt'saccountof the state, and thereforein his wider political theory.Schmitt'spolitical argumentwas precisely that con"liberalismis not the best realisation" of the principleof representatemporary tion. "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. 117 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. 118 RobertWokler, "The Enlightenment Project,the Nation State and the PrimalPatricide of Modernity,"in R. Wokler and N. Geras (eds.), The Enlightenmentand Modernity(London, 2000), 178. 119 Sonenscher,"The Nation's Debt, Part II," 313, 314; cf. Tracy Strong, "How to Write Words,Authority,and Politics in ThomasHobbes,"CriticalInquiry,20 (1993), esp. Scripture: 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 am Main, 1980), 25. (Frankfurt

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Duncan Kelly

who could the representative figureof the political leader(the Reichspriisident) unify the body of the stateagainsta weak andliberal"totalstate"was derivedin howlargepartfromthe work of Hobbes.He could only develop this argument, in the lanever, afterhe had cementedhis ideas aboutpolitical representation his with of modem constitutionalism through engagement guage Sieyes. The Universityof Sheffield.

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