Carl Schmitt On Federation

One of the most thorough and interesting discussions of the relationship

between federalism, constitutionalism and democracy is presented by Carl

Schmitt in Constitutional Theory. A federation of states, or just a

federation, is according to Schmitt a curious and structurally contradictory

interstate relation, which has to be distinguished from, on the one hand, a

confederation (an alliance of sovereign states) and, on the other hand, a

federal state (one sovereign state).

A federation is a permanent association of two or more states which rests on

a free agreement of all member-states with the common goal of

self-preservation; an agreement that however changes the political or

constitutional status of the member-states. It is immediately clear that the

federation lies in between—or is a curios synthesis of—the confederation and

the federal state.

On the one hand, in contrast to the federal state, which rests on a public

law constitution, but similar to the confederation, the federation rests on an

international contract. On the other hand, in contrast to the confederation but

similar to the federal state, the establishment of a federation leads to a

political change of the member-states’ constitutions.

The constitutional change of the member-states does not necessarily entail a

change of constitutional law in the member-states; the constitutional change

regards something far more important, namely, “the concrete content of the

fundamental political decisions on the entire manner of the existence of the

state.”

It is here important to note that Schmitt operates with a fundamental

distinction between a constitution and constitutional laws. The constitution is

not the sum of the constitutional laws. The constitution consists in the

fundamental political decision on the political form of the state. In this way,

the fundamental decision on democracy is encapsulated in the preamble to the

Weimar Constitution: “the German people provided itself with a constitution”

and “State authority derives from the people” and “The German Reich is a

republic.”

The constitutional change of the member-states of a federation consists in

the establishment of a permanent order that includes the member-states in their

total existence as a political unity into a common political existence. This

common political existence does however not eliminate the existence of the

individual member-states; the federation and the states exist politically

alongside one another.

The federal constitution is an interstate contract the content of which

simultaneously is a component of each of the member-states constitutions. The

federal contract is the only genuine form of contractual constitutionalism,

because it presupposes two or more politically existing states, each of which

containing within them one subject of the constituent power.

Within a state, a constitution will according to Schmitt always be a

one-sided decision by the sovereign people as the sole carrier of the

constituent power. The federal constitution is in this way a contract between

two or more national subjects of the constituent power.

The aim of the federation is self-preservation. This entails that all

federations unconditionally guarantee the political existence of each of the

members of the federation, even if this is not stated explicitly. Internally,

self-preservation signifies a necessary pacification. Internal peace is

essential within the federation; a war between two member-states would signal

the end of the federation.

Furthermore, in the name of the common interest in self-preservation and

security, the federation has the right of supervision and, if necessary,

intervention with regard to maintenance, preservation and security.

Externally, the federation protects all the member-states against foreign

invasion: “Every federation can wage war as such and has a jus belli. There

is no federation without the possibility of a federation war.” However,

this does not mean that the individual members of the federation are totally

deprived of their jus belli; “it follows from the nature of the

political existence of the individual members that a right to self-help and to

war is only being given up insofar as it is conditioned by membership in the

federation.”

The federation as a political form is, according to Schmitt, characterized

by three legal and political antinomies. Firstly, there is a contradictory

relationship between, on the one hand, the federation’s aim of

self-preservation hereunder the maintenance of the independence of all

member-states, and on the other hand, the lessening of this independence of

every member-state with regard to their jus belli.

In this way the federation leads to a contradictory status with regard to

the self-preservation of the member-states. Secondly, there is an antinomy

between, on the one hand, the fact that the federation members seek to preserve

their self-determination and their political independence through the federation,

and on the other hand, that the federation in the name of common security and

self-preservation has the right to intervene since it cannot ignore the

domestic affairs of the federation members. Thirdly, and most fundamentally,

there is an antinomy between the political existence of the federation and the

political existence of the member-states which have to coexist under a federal

constitution.

The federation is conditioned on this coexistence: neither the member-states

nor the federation are to be subordinated to the other part: “the federation

exists only in this existential connection and in this balance.” The essence of

the federation resides in this “dualism of political existence.” If the

existential balance of this dualism is not kept intact the federation will

dissolve either into individual sovereign states or into one federal sovereign

state.

The problem of this dual existence is practically best illustrated by the

problem of secession. On the one hand, the federation is founded as a permanent

order which entails a continual renunciation of the right to secession. On the

other hand, the federation is a contract of independent politically existing

states which must have the continual right to decide upon the status of this

contract themselves, also with respect to the annullability of this contract,

i.e., the right to secession. In this way, the federation is existentially

conditioned both on the member-states’ continual right to secession and

renunciation of this right.

In this way, the fundamental problem of the federation can be stated as

follows: if an existential conflict arises between the federation and the

member-states, who decides? The problem is, that the federation is predicated

on the existential balance between the two parties’ equal right, and if a

decision is made, the federation will dissolve because either national

or federal sovereignty is declared supreme.

For this reason, the existence of the federation is conditioned on a

perpetual openness of the question of sovereignty, that is, the existence of

the federation is predicated on an existential exclusion of internal conflict

in the federation. It is important to note here that existential balance

between two political entities, according to Schmitt, does not entail a

“division of sovereignty”: the question of who decides is merely left open.

The only possible resolution to these antinomies, according to Schmitt, lies

in an existential and substantial homogeneity among all members of the

federation, which will ensure (a) that the first antinomy regarding the

member-states’ self-preservation is resolved by ensuring internal pacification

and external compatibility of enmity (in this way the jus belli of the

member-states will coincide with the jus belli of the federation), (b)

that the second antinomy regarding the self-determination of the member-states

is resolved by ensuring that the interference of the federation in the internal

affairs of the member-state will not appear as foreign in existential terms (in

this way the interference by the federation will not be against the will of the

member-states) and (c) that the third antinomy regarding sovereignty is

resolved by ensuring that internal conflict is existentially excluded (in this

way, the closure of the question of sovereignty is precluded).

Two questions have to be raised in relation hereto: Firstly, how is the

homogeneity established? Secondly, what are the consequences of this homogeneity

for a federation of democratic member-states? Regarding the first question,

Schmitt argues, substantial homogeneity can primarily be derived from national

similarity of the member-states’ populations. However, political form

(democracy, aristocracy, or monarchy) and principles such as religion, culture,

or class can add to the principle of national homogeneity. Homogeneity is in

this way primarily something which is existentially given.

In order to answer the second question, a short discussion of Schmitt’s

conception of democracy is necessary. According to Schmitt, democracy is in

general treated as an ideal concept not properly distinguished from liberalism

and the Rechtsstaat (hereunder socialism, justice, peace and

international understanding); an ideology and a political form which democracy,

according to Schmitt, is not merely distinct from but directly opposed to.

In contrast to the general discourse of the Rechtsstaat presenting

freedom and equality as the dual principles of democracy, Schmitt argues that

not merely is freedom not a democratic principle, freedom and equality are

often opposed to one another.

The democratic principle is according to Schmitt equality; not the general

human equality of all persons discussed by liberalism which precludes political

distinction and exclusion, but the concrete equality of a people within a

nation-state: “Even the French Declaration of the Rights of Man,” Schmitt

writes “states that all persons are by nature free and equal. As soon

as it involves political rights and those of the state, however, it no longer

speaks of persons (homme), but instead of state citizens (citoyen).”

In a national democracy, like the French, the presupposition of democracy is

a substantial equality of a people, meaning a national homogeneity: “democratic

equality is essentially similarity, in particular similarity among the

people. The central concept of democracy is people and not humanity”

(p. 261-3).

Democracy is by Schmitt defined—both as a state form, a governmental form

and a legislative form—as the identity of ruler and ruled. Identity as the key

term of democracy has at least three meanings for Schmitt: (a) the identity of

a homogenous people (national identity), (b) the identity of politically

unified people (political identity) (c) the self-identity of a physically

present people as in contrast to representation (presence identity).

Democracy rests in this identity because if the identity is strong enough

there will be no difference between the opinion of one and the opinion of

another: there will be one sovereign will of the people. It is this will that

has the power or authority to constitute a state as a democracy: the homogenous

sovereign will of the national people is the subject of the constituent power.

Regarding the second question: since both democracy and federations rest on

substantial homogeneity, it is necessary that the national homogeneity

converges with the federal homogeneity.

For this reason, Schmitt argues “it is part of the natural development of

democracy that the homogenous unity of the people extends beyond the political

boundaries of member states and eliminates the transitional condition of the

coexistence of the federation and the politically independent member states,

and replaces it with a complete unity.”

In this way, the principle of homogeneity that led to the resolution of the

antinomies of the federation—the antinomies which again, if not resolved, would

lead to the dissolution of the federation because of the closure of the question

of sovereignty—has in the case of democratically constituted states a path

dependency which stirs the federation directly toward its dissolution into a

federal state.

On the other hand, if the homogeneity is not strong enough, the antinomies of the federation will lead to a collapse of the federation into sovereign states. For this reason, the legitimacy of a federation, in Weberian terms (the sociological criteria which will lead the population to accept the political system), will lead (a) to the dissolution of the federation into a federal state if they are fulfilled and (b) to the dissolution of the federation into nation-states if they are not fulfilled. The non-statist form of the federation is therefore, according to Schmitt’s theory, merely a transition from one form of statehood to another form of statehood.

Courtesy: Critical Legal Thinking.

The photo shows, "Spring in the Trenches," By Paul Nash, painted in 1918.