Ed. Note. The following article is a revised translation of Dr. Polzin’s chapter, “Carl Schmitt als Strafrechtler,” in A. Koch et al., Strafrecht zwischen Novemberrevolution und Weimarer Republik (Tübingen: Mohr Siebeck, 2020). The author would like to thank her former assistant Donat Danics for his invaluable help with the translation.
The Beginning of the Search for the Eternal Truth of the State: The Criminal Law Career of Carl Schmitt
The infamous German lawyer Carl Schmitt started his academic career as a criminal lawyer in Strasbourg and Munich. This period of Schmitt’s scholarship is relatively unknown, even though during this period he lays the foundations for the famous sentence in the first chapter of his book “Political Theology“: “Sovereign is who decides on the state of emergency.”[1]
“…Schmitt’s career as a criminal lawyer laid the foundation for his dubious legal methodology…”
Dr. Monika Polzin
The aim of the present article is to shed some light on the early phase of Schmitt’s career and to analyze and describe the three stages of his criminal law career and their influence on his later work and methodology. Therefore, the article also demonstrates that Schmitt’s career as a criminal lawyer laid the foundation for his dubious legal methodology, which can be described as the methodology of imprecise megalomania.
The first part describes the inconspicuous beginning starting 1910 with Schmitt’s doctorate in criminal law at the then Kaiser-Wilhelm-Universität in Strasbourg.[2] The central writings that establish the transformation from a criminal lawyer to a constitutional lawyer of the state of emergency, were written during the First World War. During this time Schmitt worked for the Bavarian military administration, more precisely for the Deputy General Command of the Bavarian Kingdom in Munich, which was responsible for the implementation and application of the state of siege in Bavaria[3]. In 1916 and 1917, he published in the Zeitschrift für die gesamte Strafrechtswissenschaft the essays Die Einwirkungen des Kriegszustandes auf das ordentliche strafprozessuales Verfahren (“The Impact of the State of War on the Ordinary Criminal Procedure”)[4] and Diktatur und Belagerungszustand (“Dictatorship and State of Siege”),[5] which are groundbreaking for his later work. The last stage of Schmitt’s criminal law career is the Third Reich. During this time his adaptability to different political systems becomes visible and his career in criminal law came to a definitive and contradictory end.
The article concludes with an assessment of the criminal lawyer Carl Schmitt and his methodology.
The Inconspicuous Beginning
The work on criminal law begins with the dissertation Über Schuld und Schuldarten (“On Guilt and Types of Guilt”) supervised by Fritz van Calker. The dissertation published in 1910 by the publishing house Schletter’sche Buchhandlung in Breslau and awarded the grade summa cum laude[6] is a conceptual-legal and legal-dogmatic work. In contrast to later works, it is also characterized by a large number of quotations and references as well as a detailed examination of the views represented in academia. A contemporary review states: “The independent work, which thoroughly masters the relevant literature, deals only with the law in force.” [7] The purpose is to determine the relationship of the terms “intent” and “negligence” to the term “guilt” in the sense of criminal law.[8] In the first part, a definition of guilt in the formal sense is presented. Schmitt defines it as “the concrete, not corresponding to the purposes of the law, purpose of a sane person, with whom the consciousness of the breach of duty was possible.”[9] Contrary to the opinion prevailing at the time, he then categorizes negligence and intent as symptoms of guilt and not as types of guilt.[10]
1911 followed a first essay on criminal law entitled Über Tatbestandsmäßigkeit und Rechtswidrigkeit des kunstgerechten operativen Eingriffs (“On the Constituent Elements and Illegality of Operations and Medical Treatments”), which was published in the Zeitschrift für die gesamte Strafrechtswissenschaft. [11] The article is written clearly and concisely. Schmitt adopts again a positivistic approach. He criticizes that the then German law did not expressly regulate the impunity of a physician for medical treatments and operations. Schmitt calls for an explicit regulation in the new German Penal Code – discussed at that time – for reasons of legal certainty.[12]
The Transformation: The Emergence of a Constitutional Lawyer and the Loss of Legal Positivism
A few years after the publication of these works the First World War begins and Carl Schmitt finds the topic of his life – the state of emergency. While working for the Bavarian military administration[13], he publishes his most important essays as a criminal lawyer in the process of becoming a constitutional lawyer.
The Beginning: a Relatively Positivistic View of the State of Emergency
The beginning, initiated in 1916 with the publication of his trial lecture held on February 16 of the same year at the law faculty of the then Kaiser-Wilhelm-Universität in Strasbourg.[14] The lecture is entitled Die Einwirkungen des Kriegszustands auf das ordentliche strafprozessuales Verfahren (“The Impact of the State of War on the Ordinary Criminal Procedure”) and is Schmitt’s most concrete and most legal positivistic work on the state of emergency.
The background to the piece was the state of war declared by Kaiser Wilhelm II on July 31, 1914,[15] in accordance with Art. 68 of the Reichsverfassung of 1871.[16] The legal consequence of the state of war was the application of the Prussian law on the state of siege of June 4, 1851. The relevant provisions were § 4 and 5 of the Prussian law. § 4 stipulated that with the declaration of a state of siege, the executive power is transferred to the military commander.[17] §5 regulated the suspension of certain fundamental rights of the Prussian constitution of 1850,[18] especially the right to personal freedom and the inviolability of the home.[19] The article is dedicated to the significance of these provisions for criminal proceedings.[20] It focuses on two questions:
- What are the consequences for criminal proceedings if constitutional provisions can be suspended?
- What does it mean for criminal proceedings if the executive power is transferred to the military commander?[21]
In order to answer these questions, Schmitt first explains that the powers of the military commander are also relevant for ordinary criminal proceedings.[22] The military commander had very broad competences within the framework of the state of war, which were limited only by the public interest. Schmitt justifies the broad powers of military commander on the basis of the cotemporary political practice. He writes: “This has become particularly clear in the current war. Numerous matters, not only military and political, but also economic, owe their regulation only to the initiative of commanding generals who intervened with reference to the public interest.”[23] As evidence, he cites measures taken by his then employer – the Bavarian military administration.[24]
These far-reaching powers enabled the military commander to issue arrest warrants in the interest of criminal prosecution and to order searches and seizures. Due to the suspension of fundamental rights regulated in § 5 of the Prussian State of Siege Act, the military commander was not bound by the provisions of the Code of Criminal Procedure (StrPO). Schmitt wrote: “The consequence is then that the provisions of the StrPO on seizure, searching and arrest become meaningless: the suspect loses the guarantees provided by the StrPO to protect the accused in the preliminary proceedings.”[25]
Furthermore, he argues that these powers are not unlimited. Rather, the principle of judicial independence, which was codified in Article 86 of the Prussian constitution[26] and §1 of the Constitution of Courts Act (Gerichtsverfassungsgesetz) of 1877, constitutes the limit for the activity of the military commander.[27] The principle of judicial independence cannot be suspended even in a state of siege.[28] Therefore: “The entire activity assigned to the court in ordinary criminal proceedings, especially the decision to open the main trial, the preparation of the main trial, the entire oral proceedings as the basis for the judicial demonstration of evidence and the independent judicial verdict, remain excluded from the influence of the military commander.”[29]
Next, Schmitt points out that due to the transition of executive power according to §4 of the Law on the Prussian State of Siege, the military commander had the authority of the public prosecution in ordinary criminal proceedings. [30] However, this power, too, is limited by the non-derogable principle of judicial independence.[31] Thus, the military commander himself cannot pronounce criminal sentences; this power rests solely with the criminal judge.[32]
In his first publication on the state of emergency, Carl Schmitt devotes himself to the practical legal question of the significance of the state of siege for criminal proceedings. He answers this question on the basis of the legal norms and state practice at the time. Legal methodology only plays a minor role. This approach enabled Schmitt to reach the conclusion that the military government’s powers in the area of criminal procedure are far-reaching and their only limit is the principle of judicial independence – without any criticism. The American lawyer Scheuermann therefore aptly writes: “Addressing its fellow jurists, Schmitt defends a measure of judicial integrity. Yet crucially, he does so not to challenge the military regime head-on by subjecting it to judicial review or blocking its activities but instead to maintain a role for his colleagues in Germany’s wartime legal system: they should be allowed to continue to punish and sentence criminals.” [33]
The Transition: States of Exceptions and Absolute Truths – The Central “Constitutional Law Study”: Dictatorship and State of Siege
The following essay, Diktatur und Belagerungszustand – Eine staatsrechtliche Studie (“Dictatorship and State of Siege – A Study in Constitutional Law”) from 1917, is again devoted to the state of emergency, this time, however, without references to criminal law.[34] Schmitt was inspired for this central work by a publication of Werner Rosenberg, a Reichsgerichtsrat, on “The Legal Barriers of the Military Dictatorship” (Die rechtliche Schranken der Militärdiktatur).”[35] Werner Rosenberg had examined whether the case law of the then supreme court, the Reichsgericht,[36] according to which § 9b of the Prussian law on the state of siege[37] granted the military commander an independent right of ordinance – not bound by legal restrictions – was legally permissible and convincing. Rosenberg denied such an emergency ordinance right on the basis of a legal positivist and methodical argumentation, which also took into account comparative law and historical facts.[38]
Schmitt himself chose a more general approach in his study, which is characterized by a high level of abstraction. He firstly refrained from any direct reference to the legal situation in Germany at the time. His study was to be an “investigation serving exclusively legal understanding”, which was not to be drawn into the “misunderstandings of a political discussion“.[39] Instead, he wanted to deal with the question “more fundamentally and under further historical aspects“[40] and determine the conceptual difference between the state of siege and dictatorship.[41] To this end, Schmitt examines in detail the French constitutional history, which he considers essential for the development of German legislation on the state of siege.[42] The starting point is that the equation of the terms state of siege and military dictatorship, that has been customary in France since the revolution of 1848, is historically unjustified.[43] The delegates of the French National Assembly of 1848 had wrongly used the term dictatorship for the state of siege, which is characterized by the transfer of executive power to the military commander and the suspension of certain basic rights.[44] Rather, as in 1793, the state of siege should have been distinguished from that of dictatorship.[45] In 1793, a dictatorship existed through the rule of the Welfare Committee (comité du salut).[46] The background was the extraordinary dangerous situation in France. In 1793, the French Republic needed to be defended against almost all European powers. In this exceptional situation, the rule of the Welfare Committee was established, which took over the tasks of the executive and legislative branches. The separation of powers was abolished. Therefore, the rule of the Welfare Committee must be qualified as dictatorship.[47] The situation during the proclamation of the state of siege in 1830 and 1848 must be assessed differently. During these years, the French king had to fight internal uprisings. Through the proclamation of a state of siege, the executive power was transferred to the military commander by a specific royal order or law in order to carry out a specific, precisely defined task. The military commander then had to return the power to the king after the task was completed.[48]
Based on this analysis of the revolutions of 1830 and 1848 and the rule of the Welfare Committee, Schmitt arrives to the central finding of his study: state of siege and dictatorship are two theoretically distinguishable states or forms of government. The first difference is that in a dictatorship the separation of powers is abolished, whereas in a state of siege it remains. The military commander is granted only increased executive powers, but no legislative competences.[49] Thus, his central thesis, which he himself also emphasized visually, reads as follows: “In a state of siege, while maintaining the separation of legislation and execution, concentration of power occurs within the executive branch; in a dictatorship the difference between legislation and execution remains, but the separation is eliminated, since the enactment and execution of laws is concentrated in the hands of the same body – whether the executive branch takes over the legislative branch or the legislative branch takes over the executive branch.” [50]
Another difference is that in a state of siege a lawless space is created, whereas this is not the case with a dictatorship. In a dictatorship, the same central body would perform the two functions of legislation and administration. In such a constellation, no lawless space would arise, because everything could be filled out immediately by legal measures. [51] With regard to the state of siege, however, the following applies: “The legal treatment of the purely factual state of a concrete danger is thus carried out in such a way that the law carves out a lawless sphere, within this sphere the military commander may use any means he deems appropriate.”[52]
Schmitt regards the dictatorship as an escalation in the state of siege. It would arise if the regulations on the state of siege were no longer sufficient to combat a dangerous situation. It could always occur when the threat to a state from external dangers became very critical, such as the threat to France in 1793.[53]
It is firstly notable that the publication seems to contain a quiet criticism of the state of siege prevailing in Germany at the time.[54] Schmitt describes the state of siege generally as a form of government in which a lawless space occurs.[55] Schmitt also expresses critique in his diary. The entry by Schmitt of September 7, 1915 reads as follows: “Afternoon: do the Report on the State of Siege Law. Give reasons for maintaining the state of siege for some years after the war. To what providence has directed me. And I am a coward and give in, although everything is achieved by contradiction.”[56]
Secondly, the study is also a preparatory work for Schmitt’s constitutional law oeuvre during the Weimar period. This applies in particular to the monograph “The Dictatorship”[57], the first edition of which appeared in 1921, and the broad interpretation of the powers of the President of the Reich (Reichspräsident) in Art. 48 para. 2 WRV presented by Schmitt at the conference of the German professors in public law (Staatsrechtslehrervereinigung) in 1924.[58] Art. 48 para. 2 WRV[59] regulated the so-called presidential power to issue emergency decrees (“Notverordnungsrecht”) and stipulated: “The President of the Reich may, if public safety and order in the German Empire is seriously disturbed or endangered, take the necessary measures to restore public safety and order, if necessary with the deployment of armed force. For this purpose, he may temporarily suspend, in whole or in part, the fundamental rights set forth in Articles 114, 115, 117, 118, 123, 124 and 153.”
Schmitt understands this norm in such a way that the President had dictatorial powers.[60] He argued in his book “The Dictatorship”: “The Weimar Constitution could not ignore the difficult question, the practice of ‘state of war’ (according to the Prussian law on state of siege of 1851 and the Bavarian law on state of war of 1912) was in 1919 still a fresh memory; at the same time, the situation of Germany at that time was so precarious that it was reasonable to grant far-reaching exceptional powers in order to deal with the situation. In Article 48, the President of the Reich was given dictatorial powers…”[61]
Schmitt determined the extent of the dictatorial powers primarily on the basis of his distinction between a sovereign and a commissarial dictatorship,[62] and not on the basis of the norms of the WRV itself. According to Schmitt, a sovereign dictatorship[63] was a National Assembly established after a revolution. Such a National Assembly had unlimited legal power and united all state powers in its hands until the fulfilling of its function. The National Assembly could exercise its unrestricted power at its discretion, since the constituent power of the people has not yet limited itself to be bound by a constitution.[64] Schmitt uses the term sovereign dictatorship, since an entity has full legal power, but, as a dictator is only mandated, in this concrete case, by the pouvoir constituant of the people.[65] Therefore, the National Assembly is only a sovereign dictatorship and not a sovereign, like the “monarch in an absolute monarchy or in a monarchy based on the monarchical principle”.[66] This sovereign dictatorship is distinguished from the commissarial dictatorship, which developed due to the rule of law containment of the state of emergency.[67] The characteristic of the commissarial dictatorship is the description and enumeration of the content and scope of dictatorial powers.[68]
Schmitt analyses Art. 48 para. 2 WRV in the context of these forms of dictatorship. He sees Art. 48 para. 2 s. 1 WRV as a provision that should have actually established a commissarial dictatorship. This, however, was not successful, since no law, that precisely regulates and limits the powers of the President of the Reich was enacted on the basis of Art. 48 para. 5 WRV.[69] Therefore, the limitation of powers required for a commissarial dictatorship had not taken place and a sovereign dictatorship de facto had occurred. He explained: “The peculiarity of the authority from Art. 48 para. 2 sentence 1, which has come into force in the meantime, lies in the fact that, on the one hand, the sovereign dictatorship of the constituent assembly ceases to exist with the constitution coming into force, and on the other hand, a delimitation of the commissarial dictatorship, corresponding to the typical development of the rule of law, has not yet taken place, because in view of the abnormal situation of the German Reich, it was intended to secure further leeway.”[70] In the matter, therefore, there is a “residual of a sovereign dictatorship of the National Assembly”.[71]
Using this distinction Schmitt understands Art. 48 para. 2 s. 1 of the WRV as regulating an unlimited presidential power (“plein pouvoir”) to impose measures.[72] The President may take all necessary temporary measures, i.e. individual measures or general orders, as long as they serve the purpose of eliminating the respective precarious situation.[73] To this end, the President of the Reich was, in individual cases, allowed to override and disregard fundamental rights and further constitutional provisions. The only limits were the inviolable organizational minimum regulated in Article 48 WRV (such as the requirement of countersignature)[74] and the “constitution as a prerequisite for public safety and order”.[75] The latter limit meant that constitutional institutions as such and the constitution itself cannot constitute a threat to public safety.[76] Contrary to the prevailing doctrine at the time, Schmitt did not regard Art. 48 para. 2 sentence 2 WRV as a limit to the presidential powers. The prevailing doctrine interpreted Art. 48 para. 2 s. 2 WRV in such a way that the President, within the scope of his powers according to Art. 48 para. 2 s. 1 WRV, was only entitled to deviate from the seven fundamental right articles mentioned in para. 2, but not from other constitutional norms. [77] Schmitt, on the other hand, considers Art. 48 para. 2 s. 2 WRV as an additional special power to override the fundamental rights listed there, i.e. not only to ignore them in individual cases but in general to repeal them.[78] For Schmitt, this follows in particular from the fact that in the context of Art. 48 para. 2 s. 1 WRV, the President, due to the general system of the state of emergency,[79] can only issue measures, i.e. time-limited actual binding acts, that are not formal legal acts.[80] This means, for example, that the President can, e.g. suspend or remove civil servants from office. The legal status of a civil servant dismissed by the President by means of a measure does not correspond to that of a civil servant dismissed by means of a normal legal procedure. Rather, the civil servant dismissed by a presidential measure remains, according to the relevant state law, a civil servant.[81] Since these actual acts merely disregard the fundamental rights, but cannot generally override them, a special norm of authority, such as Article 48.2 s. 2 WRV, is necessary.
Furthermore, in his first constitutional law study on the state of emergency, Schmitt lays the foundation for his own methodology in public law which consists of developing his notions of constitutional theory as general and absolute truths. Schmitt starts the search of the eternal truths of the state and its actions as Schmitt sees the political existence of the state as the reason for unity and order. He writes in his book „Verfassungslehre“: “The notion legal order consists of two totally different elements: the normative element of the law and the existential and real („seinsmäßige“) element of the concrete order. Unity and order are located in the political existence of the state and not in laws, rules and some norm based activities.”[82] Hereby, he follows an approach that mixes normative elements with facts and imagination.
In his article from 1917, Schmitt defines the legal terms dictatorship and state of siege not on the basis of the constitutional norms in force but generally on the basis of the French constitutional history in order to find the eternal meaning resp. truth of these two notions.
This methodology is further refined in Schmitt´s later work during the Weimar Republic. Pertinent examples are Schmitt’s understanding of a constitution, and his most famous and unique interpretations of the Weimar Constitution, i.e. the interpretation of Art. 48 WRV and the interpretation of Art. 76 WRV. Schmitt justifies his unique interpretations with his own methodology which is based outside the Constitution and consists of two steps. First, he develops absolute definitions of certain notions of constitutional theory based upon a mixture of real historical events in the most diverse forms of governments, selected philosophical writings combined with creativity and imagination. Those absolute notions are then used in order to determine the meaning of the Weimar Constitution.
The Methodology behind the Interpretation of Art. 48 WRV
As we see in the just described interpretation of art. 48 WRV in his famous contribution “Die Diktatur des Reichspräsidenten” at the annual meeting of the German Professors for Public Law in 1924, Schmitt determined the powers of the Reichspräsident in Art. 48 WRV with arguments based outside the constitution itself. He interpreted them on the basis of an abstract notion of dictatorship that he in turn had developed in his book “Dictatorship” based on a mixture of philosophical writings, historical events outside the Weimar Constitution and his own imagination. Hans Nawiasky therefore rightly wrote about the interpretation of Art. 48 WRV: “It will now have become clear why the critical consideration of the consequences of the new theory was anticipated. These are so monstrous that it must be said from the outset that the interpretation of a provision of the new Reichsverfassung which leads to such results cannot be in the sense of this constitution, it is not developed from it, flesh from its flesh, it is artificially brought to it, a foreign stake which must be dug out.”[83]
In 1927 Schmitt defended in the preface of the second edition of his monograph “Die Diktatur” his particular approach and wrote: “My discussion of the dictatorship of the Reichspräsident in accordance with Art. 48 of the Weimar Constitution is based entirely on the historical and theoretical examinations of the present book. I have doubt whether it is scientifically correct or even admissible, to treat the particular difficult and comprehensive problem of the correct interpretation of Art. 48 without the historical connext of a democratic constitutional theory (demokratische Verfassungslehre).”[84] He further argues that the decisive yardstick for the interpretation of Art. 48 WRV is not the constitution and its provisions but the ultimate purpose of a dictatorship to protect and defend the constitution as a whole. Otherwise, each provision of a constitution would be more important than the constitution itself.[85] The deeper reason for this approach seems Schmitt’s assumption that dictatorship is a problem of concrete reality[86] and that therefore the content of Art. 48 WRV has to be adapted accordingly. Schmitt wrote: “Without deeper examinations of constitutional history and theory, it is impossible to discuss academically the interpretation [of Art. 48 WRV] or the general problem of the dictatorship. It occurs in nearly all European countries as the same strange phenomenon: as an open dictatorship, as the praxis of enabling laws, in apparent legal forms, i.e. within the relevant procedural requirements of constitutional amendments, (…). It is absolutely not ‚positive‘ to ignore these developments.”[87]
In his monograph Schmitt defined dictatorship as a certain form of acting in order to attain certain conditions.[88] The legal particularity is that legal limits that would constitute an improper (“sachwidrig”) barrier for the attainment of the conditions to be reached by the dictatorship are actually inapplicable.[89] He then distinguishes between a commissarial dictatorship and a sovereign dictatorship. The purpose of a commissarial dictatorship is to protect an existing constitutional order, i.e. a constitution is suspended in order to preserve it.[90] In contrast, the purpose of a sovereign dictatorship is to eliminate an existing order and to establish a state that enables it to establish a new constitution, which is regarded as the true constitution.[91] According to Schmitt, a sovereign dictatorship is legally relevant and not a question of power due to the idea of the constituent power. The latter is regarded by Schmitt as a power that establishes a constitution but that can never be constitutionally regulated. Therefore the holder of power is dependent on the constituent power, but the constituent power can never become sovereign, as it is unable to be constituted.[92] Schmitt comes to this definition rather abruptly in the middle of his book without clear references and derivations.[93] In the pages before he had described different forms of delegated or commissionary governmental power (such as the practice of the agents appointed by the pope in the 14th century[94] or the emperor in the 17th century[95]) and related forms of dictatorships (such as dictatorship of Wallenstein[96]). Interwoven with the analysis of the selected historical events he also describes incoherently the use and understanding of dictatorship and other important notions of constitutional theory such as in particular sovereignty and constituent power in different political and philosophical texts (such as Machiavelli,[97] Hobbes,[98] Bodin,[99] Grotius,[100] Locke,[101] Montesquieu[102] or Rousseau[103]). The particularity of Schmitt’s presentation is that he provides no explanation or structure for his selection of historical events and authors referred to. Neumann therefore aptly wrote that the book partly reads as if Schmitt has emptied its slip box.[104] The Schmittan approach of notion forming, which consists of mixing real events, philosophical writings and his imagination to a perceived absolute truth becomes visible.
The Methodology behind the Interpretation of Art. 76 WRV
Another example of this particular methodology is Schmitt’s interpretation of Art. 76 WRV. Art. 76 WRV regulated the amendment process of the Weimar Constitution. According to Art. 76 WRV the right to amend the Constitution generally belonged to the legislative branch and this power was not limited by an express material limitation. Art. 76 stated that: “The Constitution can be amended by legislation. However, a decision of the Reichstag [the then German parliament] regarding the amendment of the Constitution only takes effect when two-thirds of those present consent. Decisions of the Reichsrat [the then organ representing the governments of the German Länder] regarding amendment of the Constitution also require a two-thirds majority of the votes cast. If a constitutional amendment is concluded by initiative in response to a referendum, then the consent of the majority of enfranchised voters is required. If the Reichstag passes a constitutional change against the objection of the Reichsrat, the President is not permitted to promulgate this statute if the Reichsrat demands a referendum within two weeks.”[105]
Schmitt argued in his famous book “Verfassungslehre” that Art. 76 WRV contains implied limits on constitutional amendments. He came to this conclusion mainly[106] by creating an absolute notion of constituent power derived from a re-interpretation of the works of French philosopher Sieyès combined with a material understanding of the constitution.[107] This eternal notion is then used in order to determine the content of Art. 76b WRV.
Schmitt established an absolute figure of the pouvoir constiuant, which was seen as a legal entity that always existed above and alongside a constitution.[108] He developed this figure by isolating Abbé Emmanuel Joseph Sieyès’ idea[109] from the French revolution[110] (that the pouvoir constitué was to be separated from the constituent power) from its historical context and applying it within an existing democratic constitution. In doing so, Schmitt absolutized and falsified the work of Sieyès.[111] Where Schmitt differed was that this entity only existed within the framework of an already-existing democratic constitution and not within a monarchy. Within a monarchy, the constituent power lay with the monarch.[112] This is an important difference from Sieyès’ work. Sieyès regarded the constituent power of the people as existing natural law that included the right of a nation to give itself a constitution within the framework of an existing monarchic order. In addition, Schmitt generalized and absolutized Sieyès´idea that only the will of a nation was necessary to frame and enforce a constitution[113] (which originally had the purpose of excluding the king from the constitution-making process). Schmitt argued that the constituent power of the people remained the right to decide on all basic political matters, even within an existing democratic constitution. Schmitt disqualified Sieyès idea, that a special constituent assembly should have the authority to elaborate and amend a constitution,[114] as anti-democratic.[115] He replaced this idea with his own idea of a mythical will of the people not subject to control.
Schmitt then used this idea of constituent power in order to interpret Art. 76 WRV. He argued that the will of this almighty constituent power (which could either be the people or the monarch[116]) was the true reason for the existence and validity of a constitution.[117] Only the constituent power itself was able to decide on fundamental questions relating to the “manner and form of its own political existence” (“Art und Form der eigenen politischen Existenz”).[118] These fundamental decisions (such as the form of government, the introduction of fundamental rights, the separation of powers, etc.) formed the “constitution in its positive sense” (“Verfassung im positiven Sinn”), which had to be distinguished from the written constitution.[119] According to this distinction, the WRV consisted of norms that incorporated fundamental decisions, and therefore made up the real constitution, and further, less important norms that were not part of the real constitution, and that could be described as being only “constitutional laws” (“Verfassungsgesetze”).[120]
Schmitt then tied this view to the idea of a constituent power that existed outside and alongside a constitution. He argued that, under the amendment provision (Article 76)[121] of the Weimar Constitution, only such provisions as constituted constitutional laws could be amended by the amending power as a constituted power (“pouvoir constitué”).[122] The amending power was not permitted to change those norms that made up the constitution in the material sense. Those provisions could only be amended or altered by the constituent power. In relation to the Weimar Constitution, this constituent power was the people.[123] Schmitt wrote: “The limits for constitutional amendment follow from the rightly-understood notion of constitutional change. A competence given only by a constitutional law to amend the constitution means that one or several constitutional laws can be changed, but only on the condition that the identity and continuity of the constitution as a whole are preserved.” [124] At the same time, he argued expressly against precisely specifying and enumerating the unamendable parts of the Weimar Constitution.[125] Schmitt also did not specify how the people could act as the constituent power. The use of the constituent power was not and could not be subject to a legal process.[126] Neither a real constitution nor a constitutional law could regulate the use of the people’s constituent power as the basis for all powers.[127] The people could instead use this constituent power “through any recognizable or visible expression of direct will that is directed towards deciding on the manner and form of existence of a political union.”[128]
To conclude, Schmitt justifies his interpretation of Art. 76 WRV and the existence of implied limits for constitutional amendments with the absolute theoretical notion “constituent power”. The latter one was again created outside the constitution with a mixture of imagination and the works of Sieyès.
The Contradictory End
The end of Schmitt’s career as a criminal lawyer is marked by two very different practice-oriented works. On 15 September 1936, at the beginning of the Third Reich, Schmitt wrote[129] the statement of the academic department of the then professional organization of lawyers, the NS-Rechtswahrerbund, for a draft of a criminal procedure code.[130] Schmitt was a member of the working committee of the Leadership of the NS-Rechtswahrerbund, which was to comment on the development of a new National Socialist criminal procedure law.[131] With his statement, Schmitt, in the words of Mehring, positioned himself as a “nationalist agitator (Scharfmacher)” vis-à-vis his colleagues in the Rechtswahrerbund. [132] Schmitt suggested a complete restructuring of the criminal procedure in the spirit of the National Socialist system[133], as criminal procedural law is also “a piece of constitutional law”. [134] Therefore, the criminal procedure must also be designed in accordance with the Führergrundsatz (“Führerprinciple”). Schmitt explains: “The uniform basis of criminal procedure can be derived solely from the overall constitution of our ethno-nationalist (“völkisch”) life. Since this overall constitution is primarily determined by the Führergrundsatz, any reorganization of the criminal procedure must take a stand on this principle.”[135] It goes on to say: “The Führergrundsatz, if it is carried out logically, must embrace and reorganize the proceedings as a whole.”[136] In conclusion, he writes: “All of the essential institutions of the criminal procedure, such as judge, investigating authority, prosecutor, injured and accused, must be in accordance with the institutions and concepts which have already developed and continue to develop in the overall constitution of National Socialist Germany in terms of party, state and status. Only so can the legislative work be given a firm direction.“[137]
The end of his criminal law career is the legal opinion “The international crime of war of aggression and the principle of nullum crimen, nulla poena sine lege.”[138] of 25 August 1945. The legal opinion was commissioned by the attorney (Dr. Walther Schmidt) of Friedrich Flick.[139] As one of the leading German industrialists, Friedrich Flick feared in summer of 1945 that he would also be charged for the crime of aggression.[140] Schmitt’s task was to prepare a legal opinion on the responsibility of civilians for the crime aggression.[141] In order to write this legal opinion Schmitt returns to the arguments of the liberal constitutional state and bases his findings, among other things, on existing international treaties and the legal situation and practice in continental Europe, England and the United States of America. Nevertheless, Schmitt makes very little uses of the methodology of international law. Rather his approach to establish absolute “truths” shines through. Thus, he concludes the legal opinion with the statement that the principle “nullum crimen, nulla poene sine lege” is not only a sentence of positive law, “but also a natural law and moral maxim to which the citizen not involved in the atrocities can necessarily refer”.[142]
In terms of content, Schmitt argues that the principle “nullum crimen, nulla poene sine lege” also applies to the international crime of aggression.[143] He demonstrates that in 1939 there existed no international criminal liability for the crime of aggression,[144] and even if there had been, only the Hitler regime could have been a suitable perpetrator.[145] By contrast, the individual citizen, and thus the ordinary business man, could be neither a perpetrator nor a participant. He refutes the thesis, which had been partially advocated in literature, that the individual citizen can be held criminally responsible because he is obliged under international law to refuse military service and obedience to the government that is waging an unjust war. [146] His main argument is that the individual citizen has no legal possibility of enforcing his judgment on the injustice of war against his own government.[147] Rather, in the event of war, the duty of loyalty and obedience applies to him. If a duty to refuse obedience is imposed, this would lead to indefensible results, especially in illiberal states.[148] Here a duty to refuse obedience would either mean a legal duty to make a hopeless attempt at civil war or a legal duty to individual martyrdom.[149] Therefore, there was no international criminal liability for citizens and ordinary businessman for the crime of aggression in the summer of 1939.[150]
To Schmitt’s regret, his clients refused to consent to publish the legal opinion during the war crimes trails in Nuremberg.[151] Schmitt himself is said to have written in this regard: “I would have gladly died if” if his legal opinion on the crime of aggression could have been published in August 1945 or during the war crime trials.[152]
His last two works on criminal law are exemplary for Schmitt’s adaptability to different political systems. His amoeba-like nature becomes particularly clear in his legal opinion on the crime of aggression. Here, he vehemently defends the constitutional principle of “Nullum Crimen, nulla poene sine lege“. However, in 1934 he had clearly and unequivocally rejected the same principle in his article “Nationalism and Rule of Law.”[153] In 1934 Schmitt wrote: “To those who think justly in the matter, it is important that no crime remains without punishment. Against this rule of law phrase “nulla poena sine lege” I place the sentence of justice “nullum crimen sine poena”. The discrepancy between the rule of law and a just state becomes immediately visible.”[154]
Closing Remarks
The analysis of the short academic career as criminal lawyer shows that already very early Schmitt laid the foundation for its particular understanding of (public) law and notions. Schmitt’s fascination with the state of exception[155] on the one hand and terms and definitions on the other hand is already visible.
Both his dissertation on criminal law and his most important essay on the dictatorship and the state of siege were conceptual legal works. Already as a criminal lawyer, he lays the foundations for his later works on notions[156] and his “Begriffsmagie”.[157] Schmitt describes his own approach as “Sociology of Notions (“Soziologie von Begriffen”)[158] and writes: „All concise notions of the modern theory of the state are secularized theological notions “[159]
This notion-related approach is problematic as it is not an intellectual end of itself but the foundation for his works on constitutional law and his dubious legal methodology. He begins to search for the eternal “truth” of constitutional theory and the state by developing absolute notions which he uses in turn for determining the content of the WRV. This particular legal methodology can be described as imprecise megalomania.
The methodology is imprecise[160] as Schmitt’s approach is unconnected from the constitution itself. He does not (or only too a limited extent)[161] work with existing constitutional norms, instead he uses different elements from outside the constitution and its context, such as historical events from different countries and political systems, philosophical writings and its own imagination and creativity. The elements used are not explained and are never coherent. He follows no apparent structure when pursuing its notion determination, there is no system or explanations which historical events and/or philosophical writings are used[162] and why and to which extent he refers to his imagination. Rather, Schmitt uses powerful and complicated formulations and descriptions and then suddenly without further explanation his own imagination. This becomes particular clear when he defines the two possible forms of dictatorship. In addition, Schmitt mixes law and facts.[163] He deduces legal principles from facts. This is particularly pertinent in its understanding of a constitution, which is regarded as an expression of the will of the German people and not as a normative order.
In his book Verfassungslehre he elaborates on the “true” reasons for the validity of a Constitution. He argues that a constitution exists because it emanates from the constituent power and is made by its will.[164] He then mixes facts and normativity, i.e. the banality that the existence of a constitution emanates from the will of those who drafted and made (f.ex. a constituent assembly) it and that in order to be effective it has be accepted by the people and wrote: “The Unity of the German Reich is not based of the 181 articles [of the Weimar Constitution] and their validity, but on the political existence of the German people. The will of the German people, i.e. something existentially, establishes, across all systematic contradictions, in coherences and indeterminacy of the separate constitutional laws, the political and legal union. The Weimar Constitution is valid because the German people has given himself the Constitution.“ [165] Here he prioritize the facts that any constitution making requires the will of those who enact it and the acceptance of the citizens in order to be existent over the normative content. Moreover, he deduces from the fact that the enactment of a constitution requires willful actions legal consequences and mixes it in addition with creativity. This will is the reason for the validity of the constitution and only the holder of this will, which is Schmitt’s mythical constituent power, can decide over the form and existence of a political unity. Therefore, the amendment power cannot amend core provisions of a constitution.
In addition, Schmitt mixes different constitutional regimes as he wants to find the ultimate truth of the state. This is particular clear in his understanding of constituent power, which can either be the people, the monarch or an organized minority.[166]
Secondly, this methodology is megalomaniacal. Schmitt intends to find the ultimate truth for constitutional notions and the state, but these “truths” are also based on its own imagination. A particular pertinent example of a flamboyant creative interpretation is Schmitt’s determination of constituent power, which he images as a mythical and almighty power outside the Constitution. Furthermore his approach consists of banalities beautifully described. The latter is the case of the formulation ““Sovereign is who decides on the state of emergency”[167] which means nothing more or less than that the power lies indeed with the person who can make decisions in emergency situation.
Finally, consistent with this dubious methodology that contains no structure and opens the gates for arbitrary determinations, Schmitt was opposed to judicial oversight and ascribed the role of the “guardian of the Constitution” in the Weimar Constitution to the executive branch, namely the President of the Reich.[168] Beside the point that here again Schmitt justifies this understanding and the rejection of the establishment of constitutional courts with an absolute notion of constitutional theory, namely its understanding of a “pouvoir neutre”[169] its approach is also connected with his understanding of the constitution as the will of the people. In accordance with this idea he can ascribe the Reichspräsident the role to connect with the political will of the German people as a whole in order to act as a guardian of the constitutional unity and wholeness of the German people.[170] He finally concludes, that the success of this attempt will be decisive for the continued existence of the German state of Weimar.[171] So the Schmittian arbitrary understanding of the constitutional system is perfect, the constitution is the will of the people, the will continues to exist outside the constitution and cannot be regulated within a constitution, therefore it can only be protected by a Reichspräsident who is able to connect himself with this will. Constitutional norms are in principle legally irrelevant. Normativity is disturbing. This approach is also inherent in his antisemitic remark on legal positivism. In a letter to his editor Ludwig Feuchtwanger Schmitt wrote in 1929: “Kelsen’s normativism and identification of the state with the law is in fact only possible if one lives not in the state but ‘within the law’. The law can or could be the Torah, but certainly hardly the German Civil Code.” [172]
Schmitt made the first steps to this particular understanding of constitutional law and theory in his early career as a criminal lawyer.
[1] Carl Schmitt, Politische Theologie: Vier Kapitel zur Lehre von der Souveränität (München, Leipzig: Duncker & Humblot, 1922), 11.
[2] Reinhard Mehring, Carl Schmitt – Aufstieg und Fall (München: C.H. Beck, 2009), 36.
[3] Ibid., 78 et seq.
[4] Carl Schmitt, “Die Einwirkungen des Kriegszustandes auf das ordentliche strafprozessuale Verfahren,“ Zeitschrift für die gesamte Strafrechtswissenschaft [ZStW] 38 (1916): 783. See in detail below: Part II (1).
[5] Carl Schmitt, “Diktatur und Belagerungszustand,“ Zeitschrift für die gesamte Strafrechtswissenschaft [ZStW] 38 (1917): 138. See in detail below: Part B. (2.).
[6] See Mehring, Carl Schmitt, 36.
[7] Walther Köhler, “Ueber Schuld und Schuldarten“, Deutsche Juristenzeitung [DJZ] 14 (1911): 940.
[8] Carl Schmitt, Über Schuld und Schuldarten (Breslau: Verlag der Schletter’schen Buchhandlung, 1910), 1.
[9] Ibid., 92.
[10] Ibid., 153.
[11] Carl Schmitt, “Über Tatbestandsmäßigkeit und Rechtswidrigkeit des kunstgerechten operativen Eingriffs,“ Zeitschrift für die gesamte Strafrechtswissenschaft [ZStW] 31 (1911): 467-78.
[12] In particular, ibid., 478.
[13] See Mehring, Carl Schmitt, 78 et seq.
[14] See Schmitt, “Die Einwirkungen des Kriegszustandes auf das ordentliche strafprozessuale Verfahren,“ 783 et seq.
[15] Verordnung, betreffend die Erklärung des Kriegszustands, Jul. 31, 1914 RGBL. I at 263.
[16] Gesetz, betreffend die Verfassung des Deutschen Reiches, Apr. 16, 1871 RGBL. I at 63 – 85, reprinted in: Heinrich Triepel, Quellensammlung zum Deutschen Reichsstaatsrecht Vol. 1 (Leipzig: C. L. Hirschfeld, 1901). Die Verfassung des Deutschen Reichs von 1871 [Bismarksche Reichsverfassung] art. 68 reads: “The emperor may, if public security in the federal territory is threatened, declare for any part of it a state of war. Until the enactment of an Imperial Law regulating the conditions, the form of proclamation, and the effects of such a declaration, the provisions of the Prussian Law of June 4, 1851, shall apply (Gesetz.Samml. of 1851 p. 451 ff.)“.
[17]Preußisches Gesetz über den Belagerungszustand vom 4. Juni 1851 [Prussian Law on the State of Siege of June 4, 1851] § 4 reads: “With the announcement of the declaration of the state of siege, the executive power is transferred to the military commanders. The civil administration and municipal authorities must follow the orders and instructions of the military commanders. The military commanders concerned are personally responsible for their orders.“
[18] Since the Prussian law of 4 June, 1851 applied to the entire territory of the Reich (except Bavaria) on the basis of Article 68 Reichsverfassung the other states could also suspend corresponding provisions in their state constitutions. See Schmitt, “Die Einwirkungen des Kriegszustandes auf das ordentliche strafprozessuales Verfahren,“ 783, 785.
[19] Preußisches Gesetz über den Belagerungszustand vom 4. Juni 1851 [Prussian Law on the State of Siege of June 4, 1851] § 5 reads: “If, at the time of the declaration of a state of siege, it is deemed necessary to suspend Articles 5, 6, 7; 27, 28, 29, 30 and 36 of the Constitutional Charter, or some of them, temporarily and district by district, the provisions relating thereto shall be expressly included in the notice of the declaration of a state of siege or shall be promulgated in a special decree to be published in the same form (§ 3).
The suspension of the aforementioned articles or of one of them shall be permitted only for the district declared under siege and only for the duration of the state of siege.“
[20] Schmitt, “Die Einwirkungen des Kriegszustandes auf das ordentliche strafprozessuales Verfahren,“ 785.
[21] Ibid.
[22] Ibid., 786 et seq.
[23] Ibid., 787.
[24] Ibid., 787, Fn. 6: “Thus the Deputy General Command of the First Bavarian (…) preceded this by regulating the supply of dairy products to Bavaria, securing the army’s requirements for beer and hay, and taking numerous other economic measures based on Art. 4 No. 2 KZG [Bavarian Law on the State of War], thus invoking not only the public interest but also the interest of public safety. The compilation of the war orders of the Deputy General Commander I, Bavarian. (…)” by Captain Roth (Munich 1917) is in this respect a treasure trove of important and interesting material for any consideration of the law on the law of war.“)
[25] Schmitt, “Die Einwirkungen des Kriegszustandes auf das ordentliche strafprozessuales Verfahren,“788.
[26] Die Preußische Verfassung von 1850 [The Prussian Constitution of 1850], Preußische Gesetz-Sammlung 1850, at 17 et seq., Art. 86 reads: “Judicial power is exercised in the name of the King by independent courts, subject to no other authority than that of the law. The judgments shall be executed and enforced in the name of the King.“
[27] Schmitt, “Die Einwirkungen des Kriegszustandes auf das ordentliche strafprozessuales Verfahren,“ 788.
[28] Ibid., 788 et seq.
[29] Ibid., 789.
[30] Ibid., 791 et seq.
[31] Ibid., 796.
[32] Ibid.
[33] Willam E- Scheuerman, “States Of Emergency,” in The Oxford Handbook of Carl Schmitt, ed. Jens Meierhenrich & Oliver Simons (New York: Oxford University Press, 2016), 547, 550.
[34] Carl Schmitt, “Diktatur und Belagerungszustand,“ Zeitschrift für die gesamte Strafrechtswissenschaft [ZStW] 38 (1917): 138.
[35] Werner Rosenberg, “Die rechtlichen Schranken der Militärdiktatur,“ Zeitschrift für die gesamte Strafrechtswissenschaft [ZStW] 37 (1916): 808-825. See, Schmitt, “Diktatur und Belagerungszustand,“ 138 n1.
[36] Rosenberg, “Die rechtlichen Schranken der Militärdiktatur,“ 808 n1.
[37]Preußisches Gesetz über den Belagerungszustand vom 4. Juni 1851 [Prussian Law on the State of Siege of June 4, 1851] § 9 b) stipulated: “Whoever, in a place or district declared to be under siege (…) b) violates a prohibition issued by the military commander in the interest of public security upon declaration of the state of siege or during the state of siege, or encourages or incites such violation, (…) shall be punished with imprisonment for up to one year, unless the existing laws provide for a higher prison sentence.“
[38] Rosenberg, “Die rechtlichen Schranken der Militärdiktatur,“ 809 et seq.
[39] Schmitt,“Diktatur und Belagerungszustand,“ 161 n52.
[40] Ibid., 138 n1.
[41] Ibid.
[42] Ibid., 138.
[43] Ibid., 139.
[44] Ibid.
[45] Ibid.
[46] Ibid., 140.
[47] Ibid., 140-44, 161.
[48] Ibid., 140-44.
[49] Ibid., 156.
[50] Ibid.
[51] Ibid., 160.
[52] Ibid., 159.
[53] Ibid., 160.
[54] Compare to Mehring, Carl Schmitt, 92.
[55] See note 52.
[56] Ernst Hüsmert & Gerd Giesler, ed., Tagebücher Carl Schmitt – Die Militärzeit 1915-1919 (Berlin: De Gruyter Akademie Forschung, 2005), 125 et seq.
[57] Carl Schmitt, Die Diktatur (Leipzig, München: Duncker & Humblot, 1921).
[58] Carl Schmitt, „Die Diktatur des Reichspräsidenten,“ Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer [VVDStRL] 1 (1924): 63, 63- 101.
[59] Die Verfassung des Deutschen Reichs [Weimarer Reichsverfassung] [WRC – Weimar Republic Constitution] RGBL. 1919 at 1383.
[60] The characterization of the competences of the President of the Reich in Article 48 WRV as dictatorial also corresponded to the usual use of words in Weimar constitutional law theory. See for example: Anschütz’ commentary on Art. 48 WRV: Gerhard Anschütz, Die Verfassung des Deutschen Reichs vom 11. August 1919, ein Kommentar für Wissenschaft und Praxis (Berlin: Verlag von Georg Stilke. 1933); (See in detail Christoph Gusy, “Die zweifache ‚Diktatur‘ des Reichspräsidenten,“ Der Staat 58 (2019): 507.
[61] Carl Schmitt, Die Diktatur – ANHANG: Die Diktatur des Rechtspräsidenten nach Artikel 48 der Weimarer Verfassung, 2th ed. (München, Leipzig: Duncker und Humblot, 1928), 254 et. Seq.
[62] See on this issue also Duncan Kelly, “Carl Schmitt´s Political Theory of Dictatorship,” in The Oxford Handbook of Carl Schmitt, ed. Jens Meierhenrich & Oliver Simons (New York: Oxford University Press, 2016), 217.
[63] In detail: ibid., 130 et seq.
[64] Schmitt, „Die Diktatur des Reichspräsidenten,“ 86.
[65] Ibid.
[66] Ibid.
[67] Ibid., 87.
[68] Ibid.
[69] Die Verfassung des Deutschen Reichs [Weimarer Reichsverfassung] [WRC – Weimar Republic Constitution] RGBL. 1919, Art. 48 para. 5 reads: “The details are regulated by a Reichsgesetz.”
[70] Schmitt, “Die Diktatur des Reichspräsidenten,“89.
[71] Ibid.
[72] Ibid., 74 et seq.
[73] See too Schmitt, Die Diktatur – Anhang, 201.
[74] Ibid., 93 et seq.
[75] Ibid., 91.
[76] Ibid., 91 et seq.
[77] To this see e.g.: Anschütz, Die Verfassung des Deutschen Reichs vom 11. August 1919, 289 (with further references).
[78] Especially clear in: Schmitt, „Die Diktatur des Reichspräsidenten,“ 77.
[79] Ibid., 101.
[80] In detail: Ibid., 95 et seq. See too: SCHMITT, Die Diktatur – Anhang, 201.
[81] Ibid.
[82] Carl Schmitt, Verfassungslehre (Leipzig, München: Duncker & Humblot, 1928), 10.
[83] Hans Nawiasky, „Die Auslegung des Art. 48 der Reichsverfassung,“ Archiv des öffentlichen Rechts [AöR] 48 (1925): 1, 11.
[84] Carl Schmitt, Die Diktatur, 3rd ed. (Berlin: Duncker & Humblot, 1964), 8. Translation by the author.
[85] Ibid., 9.
[86] Ibid., 137.
[87] Ibid., IX. Translation by the author.
[88] Ibid., 135.
[89] Ibid. Translation by the author.
[90] Ibid., 136.
[91] Ibid., 137.
[92] Ibid., 138, 146.
[93] Ibid., 135 – 146.
[94] Ibid., 43 et seq.
[95] Ibid., 60 et seq.
[96] Ibid., 79 et seq.
[97] Ibid., 6 et seq.
[98] Ibid.,e.g. at 22 et seq. and 30 et seq.
[99] Ibid., e.g. at 25 et seq. and 33 et seq.
[100] Ibid., e.g at 28 et seq.
[101] Ibid., e.g. at 40 et seq.
[102] Ibid., e.g. at 101 et seq.
[103] Ibid., e.g. at 114 et seq.
[104] Volker Neumann, Carl Schmitt als Jurist (Tübingen: Mohr Siebeck, 2015), 31.
[105] An English translation of the Weimar Constitution can be found in: Carl Schmitt, Constitutional Theory, trans. Jeffrey Seitzer, (Durham, London: Duke University Press, 2008), 421.
[106] The auxiliary argument was that to amend did not mean the annihilation (“Vernichtung”) or abolition (“Beiseitigung”) of a constitution, Schmitt, Verfassungslehre, 104.
[107] See also Monika Polzin, “The basic-structure doctrine and its German and French origins: a tale of migration, integration, invention and forgetting,” Indian Law Review 1 (2021): 2-7. Monika Polzin, Verfassungsidentität: Ein normatives Konzept des Grundgesetzes (Tübingen: Mohr Siebeck, 2018), 23 et seq.
[108] Particularly clear: Schmitt, Verfassungslehre, 91.
[109] Emmanuel Joseph Sieyès, Qu’est-ce que le Tier état? (1789; reprint., Paris: Éditions du Boucher, 2002).
[110] The famous passage reads as follows: “Dans chaque partie la constitution n’est pas l’ouvragedu pouvoir constitué, mais du pouvoir constituant.“ See Sieyès, Qu’est-ce que le Tier état? 53.
[111] See also Joel Colón-Ríos, “‘Five Conceptions of Constituent Power’,” Law Quaterly Review [L.Q.R.] 130 (2014): 306, 329: “No constitutional theorist has taken Sieyès further than Carl Schmitt.”
[112] Schmitt, Verfassungslehre, 103-4.
[113] Sieyès, Qu´est-ce que le tier-etat? 54 et seq.
[114] Ibid., 60.
[115] Schmitt, Verfassungslehre, 80.
[116] Ibid., 23, 75 seq.
[117] Ibid., e.g. 9, 75-6.
[118] Ibid., 76.
[119] Ibid., 21.
[120] Ibid., 20 et seq., 76 and 104.
[121] See Schmitt, Constitutional Theory.
[122] Schmitt, Verfassungslehre, 101-2.
[123] Ibid., 27, 105 and 177-78.
[124] Ibid., 103. Translation by the author.
[125] Carl Schmitt,“Zehn Jahre Reichsverfassung“, Juristische Wochenschrift 58 (1929): 2313, reprinted in: Carl Schmitt, Verfassungsrechtliche Aufsätze aus den Jahren 1924-1954 (Berlin: Duncker & Humblot, 1957) 40.
[126] Schmitt, Verfassungslehre, 82 and 84.
[127] Ibid., 79.
[128] Ibid., 82. Translation by the author.
[129] Mehring, Carl Schmitt, 674. Compare also reorganization of criminal procedural law, memorandum of the NS-Rechtswahrerbund on the draft of a criminal procedural code, a code of judges of peace and arbitrators and a court constitution law of the official criminal procedural commission of the Reich Ministry of Justice, Berlin 1937, Preliminary note, 5 “unter der Leitung des Staatsrats Prof. Dr. Carl Schmitt“.
[130] Statement of the Scientific Department of the NS-Rechtswahrerbund on the draft of a Code of Criminal Procedure, excerpt – (completed on Sept. 15, 1936), reprinted in: Neuordnung des Strafverfahrensrechts, Denkschrift des NS-Rechtswahrerbundes zum Entwurf einer Strafverfahrensordnung, einer Friedensrichter- und Schiedsmannsordnung und eines Gerichtsverfassungsgesetzes der amtlichen Strafprozesskommission des Reichsjustizministeriums (Berlin: Deutscher Rechts-Verlag, 1937), 81 et seq. [hereinafter Statement of the Scientific Department of the NS-Rechtswahrerbund].
[131] Ibid., 5 et seq. In addition to Schmitt, members were: Attorney and notary Dr. Rilk, senior public prosecutor Brederek, ministerial director Senate president Jäger, chief public prosecutor Dr. Lauk, judicial inspector Liese, attorney Dr. Seydel and retired district court director Dr. Töwe. All members had been appointed by the then Reichsrechtsführer Dr. Frank.
[132] Mehring, Carl Schmitt, 371.
[133] Particularly clear: Statement of the Scientific Department of the NS-Rechtswahrerbund, 111 et seq.
[134] Ibid., 81.
[135] Ibid., 85.
[136] Ibid., 93.
[137] Ibid., 111 et seq.
[138] Carl Schmitt, Das internationalrechtliche Verbrechen des Angriffskrieges und der Grundsatz „nullum crimen, nulla poene sine lege, ed. Helmut Quaritsch (Berlin: Duncker & Humblot, 1994).
[139] To here in detail: Ibid., 125 et seq.
[140] Ibid.
[141] Ibid.
[142] Ibid., 80.
[143] Ibid., 17 et seq.
[144] Ibid., 32 et seq.
[145] Ibid., 58 et seq.
[146] Ibid., 70 et seq.
[147] Ibid., 78.
[148] Ibid.
[149] Ibid.
[150] Ibid., 79.
[151] In detail see: Ibid., 137 et seq.
[152] Cited from Ibid., 137.
[153] Carl Schmitt, “Nationalismus und Rechtsstaat,“ Juristische Wochenschrift [JW] 12-13 (1934): 713, 713 et seq.
[154] Ibid., 714.
[155] See his famous phrase: “The exception is more interesting than the normal case. The normal proves nothing, the exception proves everything; it not only confirms the rule, the rule lives at all from the exception. In the exception the force of real life breaks through the crust of a mechanics solidified in repetition.” Carl Schmitt, Politische Theologie, 2nd ed. (Leipzig, München: Duncker & Humblot, 1934), 22.
[156] See on the reception of his work from the standpoint of the Ideen- oder Begriffsgeschichte: David Egner, “Begriffsgeschichte und Begriffssoziologie zur Methodik und Historik Carl Schmitts und Reinhard Kosselecks,“ in Ansätze und Methoden zur Erforschung politischen Denkens, ed Andreas Busen and Alexander Weiß (Baden-Baden: Nomos, 2013), 81-102. See also on the Weimar approach of Schmitt in his notion forming work: Jannis Lennartz, Juristische Granatsplitter (Tübingen: Mohr Siebeck, 2018).
[157] Jan-Werner Müller, A Dangerous Mind: Carl Schmitt in Post-War European Thought (New Haven & London: Yale University Press, 2013), 8.
[158] Carl Schmitt, Politische Theologie: Vier Kapitel zur Lehre von der Souveränität, 6th ed. (Berlin: Duncker & Humblot, 1993), 50. See also Reinhard Mehring, “Begriffssoziologie, Begriffsgeschichte, Begriffspolitik. Zur Form der Ideengeschichtsschreibung nach Carl Schmitt und Reinhart Koselleck,“ in Politische Ideengeschichte im 20. Jahrhundert, ed. Harald Bluhm and Jürgen Gebhardt (Baden-Baden: Nomos, 2006) 31.
[159] Schmitt, Politische Theologie (1993), 43.
[160] Cf. regarding the approach of Schmitt in his notion forming works: Lennartz, Juristische Granatsplitter, 14 arguing that precision and completeness might hinder successful notion forming.
[161] See e.g. the argumentation in his essay on the Guardian of the Constitution, in which he also works albeit only to a limited extent with the norms of the Weimar constitution. See Carl Schmitt, Der Hüter der Verfassung (Tübingen: Mohr Paul Siebeck Verlag, 1931), 149-150, 156 and 158.
[162] See in relation to his book dictatorship: Gusy, “Die zweifache ‚Diktatur‘ des Reichspräsidenten,“ 520.
[163] This corresponds with his own description of his sociology of notions: see Schmitt, Politische Theologie (1993), 50.
[164] See Schmitt, Verfassungslehre, 9.
[165] Ibid., 10.
[166] Schmitt, Verfassungslehre, § 8.
[167] SeeSchmitt, Politische Theologie: Vier Kapitel zur Lehre von der Souveränität (1922), 11.
[168] Schmitt, Der Hüter der Verfassung, in particular 70, 156, 158-9.
[169] Ibid., 141.
[170] Ibid., 159.
[171] Ibid., 159.
[172] Carl Schmitt and Ludwig Feuchtwanger, Carl Schmitt Briefwechsel 1918-1935, ed. Rolf Reiß, (Berlin: Duncker & Humblot, 2007), 313; Translation in Raphael Gross, “The ‚true enemy‘ Antisemitism in Carl Schmitt’s Life and Work,” in The Oxford Handbook of Carl Schmitt, ed Jens Meierhenrich and Oliver Simons (New York: Oxford University Press, 2016), 96, 109.