The Way to the Total State

6,293 words

Translated by Simona Draghici

Editor’s Note:

The following translation of a 1931 essay from Carl Schmitt appears online for the first time in commemoration of Schmitt’s birth on July 11, 1888. The translation originally appeared in Carl Schmitt, Four Essays, 1931–1938, ed. and trans. Simona Draghici (Washington, D.C.: Plutarch Press, 1999). I have broken up long paragraphs to make the text more readable.

The present-day constitutional situation is characterized first of all by the fact that numerous institutions and regulations of the 19th century have continued unchanged, while the current state of things appears to have changed entirely, when compared to those earlier circumstances. The German constitutions of the 19th century belong to an era, the basis of which had been formulated clearly and for all practical purposes by the outstanding German theoreticians of the state in those days, namely, the distinction between state and society.

Another, closely related question about the ranking of state and society, whether one was given precedence over the other, whether one was dependent on the other, and if so how, and so on and so forth, does not concern us here. The distinction, though, remains.

Moreover, one must take into consideration the fact that “society” was essentially a polemical notion, used as an objection to the concrete, monarchical militaro-bureaucratic state in existence at the time: it referred to what was regarded as not belonging to that state, and was called society for that very reason. The state was strong enough to hold out on its own against the other social forces surrounding it, and as a result, to determine the segregation in a way that the numerous differences inside the “state-free” society—denominational, cultural, economic—relativized themselves by necessity, in virtue of the collective separation from it, while the state, on its part, did not hinder their concentration into “society.” On the other hand, it maintained a far-reaching neutrality and non-intervention regarding religion and economy, and to a large extent, observed their autonomy and that of their practical spheres of activity. Thus that state was not absolute in any sense, or so strong as to render meaningless all that was not it.

In that way, too, both a dualism and an equilibrium were possible: in particular, one could believe in the possibility of a state free of religious and ideological ideas, even fully agnostic, and of the development of a state-free economy alongside of an economy-free state. The state however remained the decisive point of contact as long as its stark reality was not lost from sight. Even nowadays, to the extent it interests us here, the ambiguous word “society” should above all stand for what is not state, and occasionally for what is not church, either.[1]

As premise, that distinction lay at the basis of every important institution and regulation of public law as it evolved in Germany in the 19th century, and still represents a large part of our present-day public law. The fact that by and large the state of the German constitutional monarchy, with its pairs of opposites, prince and people, crown and chamber, government and popular representation, has been built “dualistically” is only an expression of the overall, fundamental dualism of state and society. The popular representation, the parliament, the legislative body, had been conceived as the stage on which society would come and face the state.  It was there that it had been meant to integrate into the state (or the state into it).[2]

The dualistic basis makes itself evident in all the important conceptual constructions. The constitution was considered a contract between prince and people. It would be discovered therein that by its essential contents, a state law “encroaches on the citizen’s freedom and property. A legal ruling, formerly a kind of administrative order concerning only the public bodies and the civil servants, was changed to address all the citizens of the state. The Budget law was based on the premise of a budget reconciliation that took place regularly between two partners, and even in the latest edition of the Meyer-Anschutz textbook (the 1919 edition, pp. 890, 897), the Budget law is still called “Budget reconciliation.” When a so-called formal law is demanded for such an administrative act as the state budget estimates, this formalization only betrays the politicization of the concept. The political power of the parliament is big enough to push through the notion that a regulation is enforceable as law only if the parliament has played a part in it, and also enough to deduce a formal legal concept from the related proceedings. This formalization comes to convey the very political success of the popular representation over the government, of society over the state of the monarchical civil service. Even the auto-administration, with its procedures, presupposed the distinction between state and society. The auto-administration was that part of society which confronted the state and its civil service. It was on this presupposition that it developed and formulated its conceptions and procedures in the 19th century.

Such a “dualistic” state is an equilibration of two different kinds of state: it is a governing state and a legislative state at one and the same time. It grew into a legislative state as the parliament increasingly developed into the legislative body of the government, in other words, the more the former society showed itself superior to the state as it was at the time. States may all be classified in keeping with the sphere of their state activity in order to uncover the essence of their operation. Accordingly, there are justice, or better still, jurisdictional states; next, states that are essentially executive and governing, and finally, legislative states.[3]

In the medieval state, as the Anglo-Saxon theory of the state still largely assumes, the core of the state power lay in the judicial authority. State power and judicial authority stood on a par, and are still presented as such in the Codex Juris Canonici (canons 196 and 218, for instance). Relatedly, indeed, one may notice that the authority of the Roman-Catholic church and of her highest offices is not conveyed through the image of a judge but rather of a shepherd tending his flock.

From the 16th century on, the form of an absolute state, which it assumed, derived directly from the collapse and disintegration of the medieval, pluralistic, judicial state, with its feudal hierarchy and its jurisdiction, and leaned upon the military and the civil service. From then on, it was essentially a state of the executive and of government. Its rationale, the ratio status, the often misinterpreted reason of state, did not lie in the existence of norms loaded with content, but rather in the efficient handling of situations in which norms could be made to carry weight, generally for the first time, while the state put a stop to the cause of all disorder and civil war, namely the strife for normative correctness. That state “established public order and safety.”

As soon as that was achieved, the legislative state, with its civil legalistic constitution, was able to force its way in. The essence of that particular state came to light in the so-called state of exception. In those circumstances, the jurisdictional state made use of martial law (more exactly, the authority of the court martial), that is to say, summary justice; thus the sate appears above all as the stopgap of the executive power for what is necessarily associated with the suspension of the fundamental rights. In other words, the legislative state of emergency decrees and exception orders is but the state of summary legislative proceedings.[4]

Whenever working with such classifications and typologies of the various kinds of state, one must remember that in real life there are no pure types, that a legislative state as such is hardly possible, or for that matter, a genuinely jurisdictional state, or a state reduced to government and public administration.  In this respect, every state is a combination of these types, a status mixtus. With this qualification, a taxonomy of states in keeping with the main state activity may still prove useful.

Thereupon, it is correct, and particularly appropriate concerning the guardian of the constitution, to regard the bourgeois legal and constitutional state in the way it developed in the 19th century as a legislative state. As Richard Thoma has aptly remarked, “it is characteristic of the modern state with its propensities for definition that one may always quarrel about the soundness and fairness of the decision, and leave it to the legislator to make and to the judge to take.”[5] A jurisdictional state is possible as long as certain norms and their contents remain uncontested and are acknowledged as such even in the absence of a known and written set of norms issued by an organized central power.

In a legislative state, on the other hand, no constitutional justice or state judicial authority may be taken for the true guardian of the constitution. That is, in the last instance, the reason why in such a state, the judiciary do not decide controversial constitutional and legislative matters on their own. In this respect, it would be useful to quote to some length Bluntschli’s opinion which by virtue of its objective clarity and the wisdom of its practical knowledge may be considered a classical position within the 19th-century state theory.

Bluntschli admits that the constitution unquestionably applies to the legislation and the latter in no way has the right to do what it is expressedly forbidden to do. He has a correct appreciation of the principles and the advantages of the American practice of the judiciary examination of the laws. Then he goes on:

If one takes into consideration, though, that the legislator is content with the principle of the mediation of the law by the constitution and will remain so, yet builds his opinions on slightly different foundations so that his statement becomes object of dispute, the court may have a different opinion than the legislator on the matter; when one comes to think of it, the higher authority of the legislator admittedly would be reduced not in principle but by the outcome of the lower-placed court, and so in the conflict with a separate organ of the state body, the representative of the whole nation must take second place to the latter. If one thinks about and recalls the conflict and the disruption which are brought to bear on the homogeneous life-course, and the fact that in its current condition the court refers mostly to and is slanted in favor of the recognition of the norms of private law and of legal circumstances, and stresses the formal-logical factors, whereas quite often it deals with important constitutional interests and the general welfare, which are the job of the legislator to know and support, then, considering all this, one may feel inclined to give preference to the European system, although the latter itself is not protected from all the evils either, and has its own share of human imperfection. It is in its own formation, though, that the legislative body carries its weightiest guarantee against the exercise of its powers in an anti-constitutional spirit.[6]

This last sentence is crucial. There, he shows that in the conception of the 19th century, the parliament itself was the guarantee of the constitution, by virtue of its very existence. That was part of the belief in parliament and its premise, namely, that the legislative body of state executive, the state itself, was a legislative state.

But that position of the legislative body was possible only in a certain situation. To be precise, whenever it was assumed that the parliament, the legislative assembly, as representative of the people or of society—people and society could be considered one and the same, as long as they both stood in opposition to the government and the state—was on its guard against a strong monarchical state of civil servants, independent of it, and which was its partner in the constitutional pact. As long as it was representative of the people, the parliament was supposed to be there as true guardian and guarantor of the constitution, because the other party to the contract, the government, had concluded the pact only reluctantly. The government gained from it only suspicions; it spent money and exacted taxes; it was thought to spend freely while the representatives of the people were held to be frugal and reluctant to spend, what wholly and factually became its downfall.

Then the trend of the liberal 19th century came along to shrink the state to the minimum, to hinder it as much as possible from intruding and intervening in the economy in any way, to neutralize it most of all with regard to society and its opposite interests so that society and economy should win the necessary decisions for their sphere, according to their immanent principles: political parties came into existence in the free play of opinions, on the basis of free campaigning, while public opinion emerged from their discussions and battles of ideas, and the contents of the will of the state were determined by its means.

The freedom of contract and trade prevailed in the free play of the social and economic forces, and as a result, the greatest economic prosperity seemed assured, as long as the automatic mechanism of free trade and of the free market steered and regulated itself according to the economic laws (through the supply and demand, the competitive exchange, the capital accumulation of political economy). The fundamental civil rights and freedoms, in particular personal liberty, the freedom of expression, the freedom of contract, economic freedom and the freedom of trade and private ownership, in other words, the real points of reference in the top issues handled by the Supreme Court of the United States, assume the existence of a neutral state that would not intervene, and most of all would not mess with the cause of restoring the disrupted stipulations of free competition.

This state, which in the liberal non-interventionist sense, was basically neutral towards society and economy, remained as a premise of the constitution even when allowances were made for social and cultural political exceptions. Nevertheless, it changed itself from top to bottom, and admittedly in equal measure, it lost the strain it had shown as dualistic structure of state and society, government, and people: the legislative state was complete. As a consequence, the state would become the “auto-organization of society.” The distinction between state and society, government and people, that had previously been taken for granted, was cancelled in the process, while concepts and institutions built on that premise (law, budget, auto-administration) turned into new problems.

Simultaneously, though, something more profound and far-reaching set in. Society organized itself in the image of the state; were state and society to be fundamentally identical, the social and economic problems would automatically become state problems, and one would no longer be able to distinguish between the state-political and the societal-unpolitical spheres. All the outstanding confrontations that had been customary in the conditions of the neutral state, came to an end. They had become manifest in the wake of the distinction between state and society, and were misapplications and redrafts of that separation. Such antithetical distinctions between politics and economy, politics and education, politics and religion, state” and law, politics and law, which were meaningful when they corresponded to an objective separation into distinct parts or areas, became groundless and lost their meaning.

Changed into state, society becomes an economic state, a cultural state, a welfare state, a social security state, a provider state. It is a state which is the result of the auto-organization of society, and so in fact no longer separated from it, that seizes all the social, that is to say, everything that has to do with the common life of human beings. There is no sector in it any longer which would observe the unqualified neutrality towards the state, in the sense of nonintervention. The parties in which various societal interests and trends organize themselves are the very society turned into a multi-party state. Because they are economically, denominationally, culturally determined parties, the state can no longer remain neutral towards the economic, confessional, and cultural spheres. In the state that has developed through the auto-organization of society, there is simply nothing left that is not at least potentially state-related and political. All the sectors are included in this new state.

French jurists and soldiers conceived the notion of the potential armor of the state, which covers not only the military, in the narrow technical sense, but everything else, the industrial and the economic preparation of war, even the intellectual and moral development, as well as the education of the citizens of the state.

Ernst Jünger has come up with a very pregnant formula to describe this astonishing process: total mobilization. With the necessary qualifications regarding contents and accuracy, the formulas of potential armor and total mobilization are individually befitting. One must pay attention to the important insight gained from them and make good use of it. They impart a sense of sweeping range while conveying the idea of a great and profound transformation: as it has organized itself into state, society is in the process of changing from a neutral state of the liberal 19th century into a potentially total state. The tremendous turning may be construed as the one side of a dialectical evolution which passes through three stages: from the absolute state of the 17th and the 18th centuries, over the neutral state of the liberal 19th century, to the total state of the identity between state and society.

The change stands out most conspicuously in the economic sphere. Thus, it is made evident by a generally recognized and uncontested fact, namely that when compared both with their earlier, pre-war state and with the present free and private, that is to say, non-public, economy, the public finances have assumed such proportions that cannot be considered merely a quantitative increase, but rather a qualitative transformation, a “structural change” which will affect all the sectors of public life, and not just financial and economic matters. Whatever the figures by which change is attested, whether, for instance, the often quoted estimate, calculated for the year 1928, that 53% of the German national revenue will be controlled by the public purse[7] is correct statistically need not be answered here, because the overall phenomenon is uncontestable and uncontested.

In a summing-up speech about the financial balance sheet,[8] State Secretary Professor Johann Popitz, an expert of the highest authority, assumes that in the action to allocate the larger percentage of the German national revenue, the self-regulatory mechanism of the free economy and of the free-market is switched off and its place is taken by “the decisive influence of a will in itself essentially extra-economic, namely, the will of the state.” Another specialist of the highest rank, the Reich Commissioner for the Economy, State Minister Saemisch has said that it is the present-day political situation in Germany that exerts a decisive influence upon the economy of public finances.[9]

From an economic perspective, there is an extremely apt formulation of the contrast which distinguishes the yesterday’s system from that of today, or so it seems to me: from a system of proportions (according to which the state is entitled only to a share of the national revenue, a sort of dividend from the net profit) to a control system through which the state has a say in the national economy as a participant in and new distributor of the national revenue, as producer, consumer, and employer, as a result of the close connection between financial economy and national economy, and as a result of the strong increase both in the needs of the state and in state revenue.

This formula must be used here for what it is worth, without embarking on a critique of the national economy. It has been spelled out by Fritz Karl Mann in an interesting and significant book, Die Staatswirtschaft unserer Zeit (The State Economy of Our Times), published at Jena in 1930. In this context, it is very important for the theoretical studies on state and constitution to consider the relation between state and economy nowadays as the real issue of the problems of home policy, while the traditional formulae of the earlier state, built upon the separation of state from society, are suited only to mislead as far as the facts are concerned.

In every modern state, the distinction between state and economy emerges as the real issue of the current, direct questions of internal policy. They can no longer be answered by means of the old liberal principle of unqualified non-interference and unrestricted non-intervention. Apart from a few exceptions, this will be recognized fully and generally. In the present-day state, the economic questions constitute the core of the difficulties of the internal policy, and all the more so, the more modern and industrialized the state is. Internal and foreign policies are economic policy to a considerable extent, and admittedly not just as customs and trade policy or as social policy. If a state law “against the misuse of positions of power in economy” is passed (such as the Ruling of November 2, 1923, with regard to German cartels), so too, as a result and by this very formulation, the idea and the existence of an “economic power” are recognized by state and law. The present day state has a comprehensive labor legislation, including basic pay rates and state arbitration of wage disputes, through which it exerts a decisive influence on wages; it grants subventions to the various sectors of industry, it is a welfare state and a social security state, and simultaneously as a result, a tax and duty state on a vast scale. Moreover, in Germany, it is also a reparations state which must raise billions as tribute to foreign states. In such a situation, the demand for non-intervention would amount to utopia, to a contradiction in terms. Because non-intervention would mean that in the social and economic conflicts and contradictions, which cannot be overcome nowadays with purely economic means, the way is left open for various power groups. Under such circumstances, non-intervention is but intervention in favor both of concealment and recklessness, and once more the simple truth of Talleyrand’s seemingly paradoxical words about foreign politics becomes obvious: non-intervention is a difficult notion, roughly, it means the same thing as intervention.

The most striking change in the conceptions about the state, prevalent in the 19th century, occurs in the transition to the economic state. The transformation may be seen in other spheres as well, although at present they will be felt mostly as less obtrusive, because of the crushing burdens of the economic problems and hardships. It is not surprising that the resistance to such an expansion of the state appears next as a resistance to the legislative state. Therefore, safeguards against the legislator will be called for next. So too, I suppose, the first gropings for remedies need to be elucidated as they are clamped on the judiciary in order to win a counterweight against the ever more powerful and grabbing legislator. They would end in empty formalities unless they are built on accurate knowledge of the overall situation of the constitutional law, and are not merely a reflex reaction. The actual error lies in the fact that to the power of the modern legislator one could oppose only a judiciary that either is bound to this legislator by specific norms and their contents, or is able to hold out against him only by means of vague and controversial principles that will not succeed in justifying their authority over the legislator.

The transition to the economic and the welfare state admittedly represents a critical moment for the surrendering legislative state, and for that reason, it need not, nor could it after all, provide the courts with renewed strength and political energy any more. In such changed circumstances, and given the broad scope of state problems and responsibilities, perhaps the government may take remedial action, but certainly not the judiciary. Nowadays, most countries of continental Europe have allowed the judiciary to be deprived of all substantial norms on the pretext that it was capable of mastering the completely new situation on its own.

At the very moment when the victory seemed to be fully its own, parliament, the legislative body, the vehicle and keystone of the legislative state, turned into a contradiction-ridden structure, disowning its own qualifications and the premises of its victory. Its previous position and superiority, its expansionist drive at the expense of the government, its representation in the name of the people, all that presupposed the distinction between state and society did not survive the parliament’s victory, at least not in that form. Its unity, actually its identity with itself, had been defined until then against the opponent in domestic affairs, the old monarchical, military and bureaucratic state. When it fell, the parliament in turn came apart, so to speak.

Now the state is, as the saying goes, the auto-organization of society, but the question is: how does the auto-organized society achieve its unity, and provided the unity sets in, is it truly the result of auto-organization? The difference between a state of parliamentary parties, with loose, that is to say, not firmly organized parties, on the one hand, and a multi-party state with tightly organized structures which are vehicles in the shaping of the will of the state, on the other, may be greater than that between monarchy and republic or any other state form. The exponents of the pluralistic state reproduce a naked likeness of the pluralistic division of the state itself, outside parliament where their representatives assume the form of factions.

Wherefrom is the unity to come in this state of affairs? From the abolition and the amalgamation of strong party and interest connections? There is no more room for discussion. Well, my mere hint to this ideal principle of parliamentarianism has induced Richard Thoma to dismiss it as an “entirely moldy” foundation. Certain, so-called “direct connections” that go through political parties (agricultural interests, labor interests, civil servants, in some cases, women, too) can produce a majority, in distinct areas; in the conditions of pluralism, they are no longer the exclusive concern of parliamentary parties and factions. Moreover, such direct connections themselves may be factors of pluralistic grouping, so admittedly, they complicate the state of affairs even more, and instead of doing away with it, they are more likely to entrench its very conditions.

Understandably, the famous “solidarité parlementaire,” the common, selfish, private interests of parliamentary deputies, and particularly of the true professional politicians, that run across party lines and may be an effective motive and a useful factor of unity, is no longer sufficient in such a difficult situation as that of present-day Germany, in the conditions of an intensive hardening of the organizations. Parliament changes itself from a stage for a unifying free debate among free representatives of the people, from a transformer of narrow party interests into a supraparty will, into a stage for the pluralistic division of the organized, societal powers.

As a result, either it becomes incapable of majority rule and action, because of its immanent pluralism, or the majority in office exhausts the legal means as tools and safeguards of its power-holders, makes the most of its stint of state power in all directions, but above all seeks to narrow as much as possible the chance of the strongest and most dangerous opponent to do the same.

Perhaps it would be rather naive to interpret it as human wickedness or a particular kind of baseness, possible only nowadays. The history of the German state and constitution has registered similar occurrences in a disturbing number and with the same disturbing regularity in the past centuries. What the emperor and the princes did to safeguard the power of their houses during the disintegration of the old Roman Empire of the Germanic nation repeats itself in numerous parallels.

The transformation from the 19th century is fundamental even in this respect. In this case, too, it would cover itself with the veil of words and phrases, kept unchanged, with old ways of speaking and thinking and a formalism that served those residues. But one must not be under the illusion that the effect both on the character of the state and constitution and directly on the state and constitution is great beyond any measure. It consists mainly in the fact that to the same extent in which the state has changed itself into a pluralistic structure, the loyalty to the social organization, the structure generated by state pluralism, replaces the loyalty to the state and its constitution, especially as the social complex often shows a tendency to become total, that is to say, to bind the helpless citizen entirely to itself economically, in accordance with its ideology.

So, ultimately, a pluralism of moral ties and obligations of loyalty, a “plurality of loyalties,”[10] also comes into being, through which the pluralistic dispersion is increasingly reinforced and the prospect of building up a state unity becomes ever more remote. Taken to its logical conclusion, it turns a civil service with obligations to the state into an impossibility, because this sort of officialdom too is supposed to be one of the organized social complexes of the disaggregated state.

Moreover, a conceptual pluralism of legality comes to the fore, destroying the respect for the constitution and turning its foundations into an uncertain terrain contested from several sides, whereas according to every constitution, a political separation exists beyond any doubt, and which together with the constitution, is the given basis of state unity. With the clearest conscience, each group or coalition in power call legality the exploitation of all the legal means and the safeguarding of each of their positions of power, the utilization of all state and constitutional power in legislation, administration, personnel policy, disciplinary law and auto-administration. As a consequence, every serious criticism or even the mere exposure of their situation seems to them an illegality, a coup, and a violation of the spirit of the constitution.

On the other hand, every organization in opposition, affected by such methods of government, refers to it, pleading that the infringement of the principle of the equal opportunity provided for by the constitution is the worst violation of the spirit and of the fundamental principles of a democratic constitution. In this way, and likewise with the clearest conscience, it can return the accusation of illegality and abuse of the constitution. The constitution itself will be smashed into smithereens between these two, in the conditions of a state pluralism in which mutual negations function almost automatically.

This examination of the concrete constitutional conditions should make one aware of a truth the sight of which many would rather avoid for many various reasons and on all kinds of pretexts. Nonetheless, it is indispensable for the study of constitutional law, which concerns itself with such problems as the protection and the safeguarding of the present constitution of the Reich. It will not do to speak in general terms of a “crisis” or to dismiss this presentation as another specimen of the “crisis literature.”

Whether the present-day state is to be a legislative state, whether in addition and considering the expansion of the sectors of state life and activity, one may already talk of a transition to the total state, whether in that case, the legislative body, already the stage and focus of a pluralistic dispersion of state unity, would become a majority of tightly organized social complexes, whatever the questions, one thing is certain, namely that the formulas and counter-formulas, coined to describe the conditions of the constitutional monarchy of the 19th century, will not be of much help: the most difficult question of today’s constitutional law cannot be answered by talking about the “sovereignty of the parliament.”

Originally published in the April 1931 issue of the Europaïsche Revue. Reproduced in Positionen und Begriffe im Kampf mit Weimar–Gent–Versailles, 1923–1939 (Hamburg, 1940), pp. 146–57.