Beruflich Dokumente
Kultur Dokumente
Constitutionalism?
Hauke Brunkhorst
Constellations Volume 11, No 4, 2004. Blackwell Publishing Ltd., 9600 Garsington Road, Oxford OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA.
The Right to War: Hauke Brunkhorst 513
this gap between what is forbidden by morality (and natural law) and what is
allowed by public law, Kant developed his own theory under the heading of a per-
missive law of practical reason.22 The permissive law (lex permissiva) can, in
particular cases having to do with maintaining a lawful condition or overcoming
the state of nature, legally allow what is not morally universalizable under the
categorical imperative:23
(1) The establishment of property through the usurpation of parts of the earths
surface, which originally belonged to everyone (provisional right in the state
of nature).24
(2) The force that overcomes the state of nature in the case of a violation of
provisional right.25
(3) The establishment of law by a ruling class in its own interest so long as it
avoids a fall into the pre-legal state of nature even when it lacks the cover
of popular legitimacy (provisional right in a state of civil disorder).26
(4) Revolutionary force so long as it leads to a new lawful condition and over-
comes the anarchy of revolution (provisional right to revolution).27
(5) Defensive war or war as the negation of an injustice, or as defense against an
attack on members of the federation of peoples (provisional international
law).28
(6) Intervention in the case of failed states.29
Of course, Schmitt would not have agreed with all the points on this (incomplete)
list, and his idealized right to war,30 which allows wars of aggression and duel
wars,31 would have met with Kants total disapproval, since for Kant the duel
was the consumate symbol of the continuing state of nature and its merely provi-
sional legality.32 But the common starting point is initially more important, and
now extremely topical in the deeply divided West.33 For Kant as for Schmitt, only
legal war is just.34
What is current and still valid in Schmitt is first of all to be found in this
commonality, for on the real difference that divides them, Kant proves to be by
far the more contemporary author, while Schmitt has at best stale goods to offer
(Luhmann).35
as well as the international state of nature. Not peace, but freedom through law is
Kants message, which corresponds to the whole of the western constitutional
tradition and was as present in German Idealism as in early liberalism, though it
was long forgotten and suppressed in Imperial Germany in favor of repressive
concept of law, with after-effects that carried over into the Federal Republic.
What is decisive for Kants argument about international constitutional law
which is to be distinguished from the constitution of a world state65 is the pers-
pective of the democratic constitution of civil society, be it a society of citizens or
a society of republican states and citizens of the world. Like ancient political
theory and unlike Hegel, Jellinek, Arendt, or Schmitt, Kant still identifies the
state with civil society. But unlike in antiquity, Kants state (=civil society) is
nothing other than the positive legal condition: A state (civitas) is the union of a
aggregate of men under rightful laws.66 Thus, for Kant not only does the
state=civitas, but, just as later for Kelsen, the state=law. In Kant, the state
understood in republican terms is just another name for the people or civil
society in distinction from an ethnic community.67 Every subject of the law
has a claim to civil rights by reason of the fundamental constitutional principle of
public autonomy.68 Even if in Kants day, unlike today, to be subject to the law
was still largely identical with submission to the law of the state, in Kant there is
nevertheless no principled argument against a constitution without a state.
Applying Kants complex argument about the constitutionalization of inter-
national law to the present international legal order leads to two important
conclusions.
Not limited war, and not a new Groraum order of hegemonial powers, but
democratic constitutionalism is the only alternative to the unilaterally proclaimed
just wars of state and non-state terrorism.
Despite his fixation on a pre-legal concept of the state, Schmitt was astonish-
ingly sensitive to developments pointing beyond statist legal positivism (Laband,
Jellinek). This was tied to his ability, developed early on, to perceive the political
as an independent, dynamic variable, outside the state and beyond the law.
Schmitt did not first work out a theory of hegemonial political domination after
1933 in connection with the imperial machinations of the Third Reich, but very
early perceived constitutional developments beyond the state as a genuinely
modern phenomenon.92 He systematically developed a theory of supranational
and suprastate constitutions in the last part of his 1928 Verfassungslehre [Theory
of the Constitution].93 Using the examples of the American (177888), Swiss
(181548), and German (181566) confederations, he showed that federations of
this kind represent a type of non-state constitution developing alongside and
above the state constitution and to use an expression from the German Constitu-
tional Courts famous and notorious Maastricht decision explode the federation
of states/federal state scheme.94
Federal or confederal constitutions penetrate the member-states with their
legal order and intervene in their sphere of sovereignty, so that they lose their
character as impermeable legal persons.95 The basis of their political independ-
ence and durability96 is a homogeneity that can have its roots in substantial-
historical categories like nationality, religion, or class membership as well as in
formal-legal categories like aristocracy, liberalism, human rights, or (non-ethnic)
democracy.97 And of course Schmitt then resubstantialized these categories by
the priority of the external-political grounding of the federation against a world of
enemies.98 Despite this, the theory of the federal constitution is an enormous
departure from the basic theses of the state-oriented Theory of the Constitution,
above all in terms of the concept, fundamental for Schmitt, of sovereignty. Sover-
eignty is by no means divided, which would contradict its concept, but remains
durably suspended between the federation and the member-states. It is not
decided but rather remains open as long as the federation exists.99 Who is the last
instance for binding decisions can be regulated according to constitutional law
and decided according to procedures.100
As Christoph Schnberger has shown, the paradigmatic traits of federal consti-
tutions are to be found in current variants of postnational and post-state
constitutional regimes like the EU.101 Schmitt himself did not return to them in
his Groraum theory of the 1930s, however, since the basis of the latter is a con-
crete order of imperial domination; the formal character of voluntary federations
as well as the durably open sovereignty between a federation and its members
was no longer compatible with the lawless imperial spaces of the Nazi Reich.
Nevertheless, it is by no means certain that Schmitt really took the federal theory
seriously as a possible alternative to the state or imperial constitution, since he
NOTES
1. Thomas Powers, Tomorrow the World, New York Review of Books 51, no. 4 (March 11,
2004), review of David Frum and Richard Perle, An End to Evil: How to Win the War on Terror.
2. Jed Rubenfeld, Unilateralism and Constitutionalism, in Nolte, ed., American and
European Constitutionalism (appearing 2004), pt. IV.
3. See ibid.; Paul W. Kahn, On Pinochet. A dictators extradition case raises difficult
questions about international law, Boston Review (Feb./March 1999). As a theoretical starting
point, see Thomas Franck, The Emerging Right to Democratic Governance, American Journal of
International Law 86 (1992): 4691.