After Exception: Carl Schmitt's Legal Institutionalism and the Repudiation of Exceptionalism

• Published date: 01 September 2016
• Author: Mariano Croce,Andrea Salvatore
• Date: 01 September 2016
• DOI: http://doi.org/10.1111/raju.12119

After Exception: Carl Schmitt’s Legal

Institutionalism and the Repudiation

of Exceptionalism

MARIANO CROCE and ANDREA SALVATORE

In the most classical and abstract sense, the exception is the “miraculous” moment

of the sovereign decision where the borders between the inside and the outside are

fixed through the identification of the enemy. This is a Schmittian legacy that a

growing number of theoretical paradigms today look at in order to either build on

it or to debunk it. For some interpreters, exceptionalism is a perceptive analysis of

the way political power takes hold of society; for others, it is a misleading and mys-

tifying hypothesis that may even end up justifying the increasing overuse of emer-

gency powers all over the world.

Whether or not exceptionalism has something sensible to say about today’s poli-

tics, in this article we will argue that Carl Schmitt himself, the recognized father of

this paradigm, came to the conclusion that it is not ultimately tenable. Between the

end of the 1920s and the beginning of the 1930s, Schmitt extensively revised his

view of law and politics in light of legal institutionalism, a theory that considered

law in general to be connected to the phenomenon of social organization and the

legal order to be rooted in the laborious and enduring activity of social actors.

The present article pursues three chief aims. First, we will provide grounds for

holding that Schmitt’s theory as a whole cannot be read through the lens of excep-

tionalism and decisionism. Secondly, we will explain the reasons why he decided

to reconsider his approach. Thirdly, and more importantly, not only will our analy-

sis aim to provide a better understanding of Schmitt’s thinking, but it will also, and

perhaps primarily, aim to shed some light on the limits of exceptionalism by trac-

ing the tormented path followed by its inventor.

In order to achieve these aims, we will first illustrate why the exceptionalist read-

ing of Schmitt does not hold (Section 1). Then we will discuss the impact of institu-

tionalism on Schmitt’s overall theory (Section 2). We will go on to explore Schmitt’s

particular version of institutionalism, as it reveals the chasm between a paradigm

based on the exception and one that recognizes the foundational and vital role

of social practices (Section 3). Finally, we will make the claim that Schmitt did

away with exceptionalism precisely because of its abstract and paradoxical nature

(Section 4).

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Ratio Juris. Vol. 29 No. 3 September 2016 (410–426)

1. Schmitt and Decisionism: A Lasting (and Equivocal) Relationship

The recent, remarkable revival in academic interest in Schmitt’s thought appears

very different from the first wave, which occurred in the 1980s, at least in a crucial

respect: Scholars as well as political observers have focused their attention on differ-

ent writings and with different aims. Whereas the first reappraisal was mainly con-

fined to Schmitt’s critique of the liberal conception of politics and, more specifically,

of parliamentary democracy, this second and ongoing renaissance mainly deals with

Schmitt’s international thought and the underlying rejection of any form of imperial

order, on the one extreme, and a pervasive state of anarchy, on the other.

1

Corre-

spondingly, whereas the first revival was led by the intent to unmask what many

considered as the essential flaws and the unkept promises of the liberal-democratic

model that was definitely defeating the Communist alternative, the second tackles

the problem of the post-9/11 world order and the quest for a new nomos.

However, despite their diversity, these two revivals share a key feature: In both

cases, Schmitt is read and interpreted through the lens of the concepts of decision

and exception. Whether it is meant to justify (or at least to account for) an irrecon-

cilable opposition between two (or more) conflicting social groups (mainly for the

first revival) or to comment on the ongoing rise of states of emergency (mainly for

the second), in either case the decisionism-exceptionalism dyad represents the her-

meneutical background against which scholars provide their interpretation of

Schmitt’s thought as a whole. To put it otherwise, regardless of any other critical

consideration and theoretical development, Schmitt’s legal and political theory is

substantially reduced to what is largely recognized as its foundational and thus

ever-present decisionist core. Accordingly, the immediate identification of

Schmitt’s theory with decisionism is widely regarded as a platitude, if not a truism.

This reading has induced most interpreters to look at each of Schmitt’s positions

through the lens of his decisionist approach and thus to regard his own later rejec-

tion of decisionism as nothing but a contingent and self-interested move. As an

epitome of this widespread tendency, a prominent scholar stated that “Schmitt’s

own theory is justly described as ‘decisionism.’ He scorned bargaining and the rule

of law, while apotheosizing ‘hard’ political decisions—the choice of an enemy, for

example, or the decision to suspend the constitution and rule by means of the

Reichswehr” (Holmes 1996, 47). On the same wavelength, another commentator

argued that “Schmitt’s voluminous pre-war (WWII) writings on politics and juris-

prudence, on which his current fame rests, can all be read as applications of the

principles of political enmity and sovereign decisionism formulated in The Concept

of the Political” (Lilla 2001, 59).

2

We believe these readings to be mistaken precisely because, in keeping with a

longstanding and still widespread tradition, they put decisionism at the heart of

Schmitt’s overall theory of law and politics. We claim that decisionism, far from

1

Two telling examples of books which aim to introduce Schmitt’s international thought to

Global Studiesand International Relationsare Hooker 2010 and Odysseosand Petito 2009.

2

This interpretive framework was originally adopted in Krockow 1958 and Schwab 1970, that

is, the two pioneering presentations of Schmitt’s thought. It is no coincidence that both of these

books respectively mention the terms decision and exception in their title. For a more recent

endorsementof this interpretation, see Agamben2005.

After Exception: Carl Schmitt's Legal Institutionalism 411

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