Despite their very pronounced political and theoretical differences, Jacques Derrida (1930–2004) devotes three chapters to the texts of Carl Schmitt (1888–1985) in his Politics of Friendship (1994), in seeking a beyond to the traditional conception of friendship in the metaphysical tradition. Here Derrida, different from other contemporary philosophers,1 affirms in large part Schmitt’s analysis of the enemy by exploring in detail The Concept of the Political (1927), ‘The Theory of the Partisan’ (1963) and ‘Weisheit der Zelle’ (1947).2 Derrida’s analysis of Schmitt’s texts has thus far found little resonance with scholars within constitutional theory and other, related fields. The political-theological reading of Schmitt by Meier (1998), as well as the reading of Schmitt by Agamben (1998; 2005) with its emphasis on sovereignty and the exception, has thus far been much more influential. There is no doubt considerable value in the readings of Meier and Agamben as well as in the readings of their followers, which will be relied on in the analysis that follows, yet the present publication (hereafter ‘SAD’) returns to Derrida’s reading of Schmitt and gives it a certain preferential status. It specifically raises the question as to the implications for constitutional theory should one take seriously Derrida’s deconstruction of Schmitt’s concept of the political in Politics of Friendship. Can such a reading provide a foundation for constitutional discourse? The answer, which will be given in Chapter 8, will be an ambivalent yes and no.
Why ‘constitutional theory’? The latter is of course the title of the 2008 translation of Schmitt’s highly acclaimed Verfassungslehre (1928). In this text, Schmitt spells out the radical implications of his own analysis in The Concept of the Political, thereby dislocating the foundations of liberal constitutionalism. He argues in this respect that the political component of modern constitutions, which is repressed by liberal thinking through its privileging of the rule of law, separation of powers and freedom, is in fact the most important component of a constitution. In showing the priority of the political component, Schmitt insists on drawing a distinction between the constitution as such and constitutional laws; distinguishes between, yet shows the interdependence between, the two principles of political form, that is, identity and representation; resurrects the concept of sovereignty in the form of constituent power; understands equality as first of all and necessarily implying an inequality in respect of those who are excluded from the political unity; and subjects freedom to the political component of the constitution.
The focus in SAD will be on some of the main concepts and themes explored by Schmitt in Constitutional Theory, which intersect with the thinking of Derrida. These include: sovereignty; the state; the political; constituent power; democracy; representation; the constitution; human rights, specifically freedom and equality; as well as the international and transnational framework within which national constitutions operate.3SAD will closely analyse Schmitt’s Constitutional Theory as well as a number of Schmitt’s other texts, and will more specifically seek to reconceptualise the above-mentioned concepts in line with Derrida’s thinking, whilst remaining faithful to Schmitt’s texts. The forces at the origin of the modern constitution will be central to this analysis. This was also Schmitt’s concern, and remains the concern today of constitutional theorists. A reading of Schmitt through a Derridean lens allows us to rethink such origin and, as we will see in what follows, makes it possible to view a constitution as a gift without return to the self.
The first possible reading strategy in respect of Schmitt, that is, apart from agreeing with his analyses in all or most respects, would be to critically engage in refutation, and to seek rational and logical alternatives to the conservative and often authoritarian responses he gives to the burning questions of constitutional theory. This strategy will not be adopted here, at least not as a primary strategy, because refutation, as Derrida (2016: 2) points out, still belongs to metaphysics, and takes no step beyond it. A second possible strategy would be to simply ignore or disregard Schmitt because of his Nazi collaboration and anti-Semitism. Writing about him would, in the view of some, even make one complicit in these stances. In support of this reading strategy, and as set out in more detail in later chapters, there can be little doubt that Schmitt’s anti-Semitism was pervasive, that is, not adopted by him simply in order to curry favour with the Nazis from 1933 to 1936. Are all his texts thereby tainted with anti-Semitism,4 or is it possible, as a third possible reading strategy, to distinguish and separate Schmitt’s political commitments from his thinking? A reductive reading of Schmitt as an anti-Semite fails to take account of the Freudian insight into the inevitable tensions and contradictions in a person’s life and thinking. The consequential idea that Schmitt should because of his anti-Semitism be isolated and ignored, or that this can be done in respect of a certain part of his work, likewise fails to take account of Freud’s insights regarding human nature.5 As Malpas points out in respect of Heidegger’s recently published Black Notebooks, 1931–1941:
[t]here is surely nothing of which humans are capable that is not also a possibility to which we are ourselves connected just by virtue of our being human … . This is partly why the Holocaust is so horrific – it is a horror that proceeds, not from something that is other than human, nor from some single person (Hitler) or exclusive group of persons (the Nazis, the Germans, the Europeans) such that they could be set apart, excluded or quarantined from the rest of us, but from a possibility that belongs to human being itself.
(Malpas 2016: 10–11)
The above passage is cited here because of the centrality of human nature and of psychoanalysis for the reading strategy or analysis that follows. This ‘analysis’ will not involve a psychoanalysis of Schmitt himself, though his texts will indeed be subjected to what can be called here a ‘quasi-psychoanalysis’, the nature of which will be clarified in what follows. Malpas in the above passage and in the rest of his chapter on Heidegger makes out a strong argument that there is indeed an obligation to seek to understand thinkers like Heidegger and Schmitt, specifically the relation between their anti-Semitism and their philosophical thinking. This is an obligation which Derrida took very seriously, especially in the case of Heidegger.6 In the case of Schmitt, this obligation should arguably also involve an attempt to understand the seemingly important role of a certain political theology in his thinking,7 though without ignoring the tensions and contradictions in his texts.
Derrida’s reading of Schmitt in Politics of Friendship does not consist of a simple affirmation of Schmitt’s contentions, a critique or an attempt to separate the ‘good’ from the ‘bad’. This follows from what could in some sense be called Derrida’s general ‘project’, that is, the deconstruction of the metaphysics of presence.8 In brief, Derrida seeks to show that metaphysics has a (problematic) desire for presence as its founding principle, and he seeks a passage beyond this. This general project is ‘executed’ in a singular manner in respect of each text which Derrida reads, so that no ‘method’, which is applied in the same manner to all texts, can be said to be at stake here. Another text, another event in a sense announces itself through each reading, which cannot simply be traced back to the author and his work (Derrida 1988b: 91). In Limited Inc, where Derrida engages with the thinking of J. L. Austin and John Searle in their analyses of speech act theory, Derrida is very explicit about the ‘strategy’ that he follows, specifically in exposing the structural impossibility as well as illegitimate logic at stake in metaphysical thinking. It also gives us a foretaste of how Derrida will engage with Schmitt’s texts in Politics of Friendship, and thus assists us in understanding Schmitt’s own strategy as a metaphysical thinker in the construction of concepts. Schmitt was no doubt acutely aware of what was at stake in such construction, as appears for example from the essay ‘Reich – Staat – Bund’:
In the political battle, concepts and conceptualised words are anything but empty sound. They are the expression of sharp and precisely elaborated oppositions and friend-enemy constellations. Understood thus, the content of world history which is accessible to our consciousness has at all times been a battle for words and concepts. These are of course not empty, but energy-laden words and concepts, and often very sharp weapons.
(PB 218)
In view of Derrida’s analysis in Limited Inc,9 Schmitt’s style of analysis can briefly be summarised as follows: Schmitt, in order to arrive at a pure concept, for example of the political, the partisan, constituent power, representation, the constitution, equality and freedom, as well as of nomos, engages in each instance in an idealisation, in the face of what he sometimes refers to as a certain ‘conceptual dissolution’ (for example in respect of the partisan), ‘collapse’ (for example in respect of the state) or boundless extension of a concept (for example of democracy and equality) which has taken place in the twentieth century. The conceptual extension, collapse or dissolution which Schmitt seeks to overcome is moreover regarded by him as something extrinsic, contingent, accidental or reducible, and the ideal is posited in a hierarchical opposition in relation thereto. The first term of the hierarchical opposition, for example the political/depoliticisation, the telluric partisan/the world revolutionary partisan, serves in each instance as a foundation or as a form of ‘presence’ (tied to the concrete, the earth and the home) and the second term in each instance represents a ‘fall’ from such presence or a ‘corruption’ of an essential purity (associated with the abstract, the normative, rootlessness and the sea).
Derrida’s own stance in respect of this typical style of argument appears clearly from the following passage in Limited Inc where he points out in relation to Austin and Searle that the ‘corruption’ or ‘fall’ as referred to above
cannot be a mere extrinsic accident supervening on a structure that is original and pure, one that can be purged of what thus happens to it. The purportedly ‘ideal’ structure must necessarily be such that this corruption will be ‘always possible.’ This possibility constitutes part of the necessary traits of the purportedly ideal structure. The (‘ideal’) description of this structure should thus include, and not exclude, this possibility.
(Ltd 77)
The purity of the inside, as Derrida (Ltd 103) further points out, is constructed in metaphysics ‘by accusing exteriority of being a supplement, something inessential and yet detrimental to that essence, an excess that should not have been added to the unadulterated plenitude of the within’. Derrida’s contention in the passage quoted above is however that the ‘impure’ and the ‘parasite’ (Ltd 90),10 in opposition to the essence or purity of the ideal, is ‘by definition never simply external, never simply something that can be excluded from or kept outside of the body “proper,” shut out from the “familial” table or house.’ Instead, it functions as ‘its internal and positive condition of possibility…, the very force and law of its emergence’ (Ltd 17).
The metaphysical strategy as described above is, as Derrida further notes, not motivated by logic, but by something non-or a-logical (Ltd 92). This strategy can more particularly be explained by the relationship of metaphysics to death, which as Derrida suggests in Limited Inc., but spells out in more detail elsewhere, is both feared and desired.11 The latter ‘desire’ is however radically repressed, or rather, ‘forgotten’. It nonetheless still determines the strategy of metaphysics. It namely appears intolerable for metaphysics that the auto-destruction or self-implosion of the pure concept, manifesting itself as dissolution, boundless extension, corruption, etc., can be lodged within the concept itself. An attempt is therefore made to expel the particular manifestation of death from the essence of the concept. In the case of ethical concepts the metaphysical strategy is furthermore to construct such concepts in terms of a circular return to the self. Only if this force of self-destruction is affirmed rather than cast out can metaphysics do the impossible and break with the circular return to the self. In reading Schmitt, Derrida seeks specifically to locate this disruptive force in his texts on the political, and SAD will seek to do something similar in respect of Schmitt’s texts on constitutional theory. The concern in what follows will consequently not only be with Schmitt’s conscious intention, but also with that which lies behind his intention in the construction and analysis of concepts.12
As indicated above, the main focus of the analysis in the chapters that follow will be on the origin of the modern constitution, not in a historical, but in a philosophical sense. This is also the main concern of Schmitt’s Constitutional Theory, as appears specifically from his analysis of the political component of the constitution, constituent power, the concept of the constitution and of fundamental rights. Yet as indicated above, an attempt will also be made to look beyond Schmitt’s conception of the origin.
Chapter 2, Sections A–C will engage in detail with Derrida’s reading in Politics of Friendship of Schmitt’s main texts on the concept of the political, that is, The Concept of the Political, ‘The Theory of the Partisan’, and ‘Weisheit der Zelle’ in Ex Captivitate Salus (1950). At stake in Derrida’s engagement with Schmitt is, as noted earlier, not a critique, but a reading through which Derrida is seeking traces in Schmitt’s texts of an uneconomic friendship, or what he refers to as ‘lovence’, beyond the political. In The Concept of the Political Schmitt laments the demise in the twentieth century of the concept of the political and seeks to reinvigorate this concept by way of a rigorous definition thereof.13 In ‘The Theory of the Partisan’ Schmitt identifies the different forms of hostility (real and absolute), associated with the telluric and world-revolutionary partisan, as compared to the conventional hostility established by the jus publicum Europaeum, central to The Concept of the Political. In ‘Weisheit der Zelle’ Schmitt again returns to the enemy, and here concludes that the enemy is the one who can put me in question, and the only one who can do so is the self, or the brother. A different structure of the political vis-à-vis what would appear from a traditional reading of Schmitt comes to the fore in Derrida’s reading of these texts, with the force of self-destruction – alluded to by Schmitt in identifying the self, or the brother as enemy – playing an important role: the age of neutralisation and depoliticisation with its paradoxical intensification of hostility, as explored by Schmitt in The Concept of the Political and elsewhere, as well as the absolute hostility of the revolutionary partisan at stake in ‘Theory of the Partisan’, in Derrida’s reading, does not (in line with the reading strategy elaborated on above) involve an accidental ruination or perversion of the political, but instead reveals its peculiar ‘structure’. Schmitt’s friend-enemy distinction, with war as the extreme possibility, can be said to be preceded by a ‘pre-originary’ form of friendship characterised by dissymmetry and the perfect gift.
Chapter 3 looks into the concept of constituent power as elaborated on by Schmitt in Dictatorship (1921) and Constitutional Theory. The main focus of this chapter will be the notion of the ‘political unity of the people’ or the state that appears from Schmitt’s texts, and the link between the people and sovereignty. A close reading of Schmitt’s texts shows that the demos appears in the first place as a formless and groundless force. At stake here is not a presence, a substance, an identity or ontology, but rather a certain ‘hauntology’ on the model of a dualist conception of God. The God at stake here consists of both a loving God of salvation and a just, creator-God, in a state of permanent war with each other. Chapter 4 enquires into the relation posited by Schmitt between identity and representation in Constitutional Theory, as well as in Roman Catholicism and Political Form (1923). This relation is important for constituent power (Chapter 3), but also for constituted powers. It will be shown that for Schmitt the two principles cannot operate in isolation of each other in the modern state and furthermore that the representation of the demos, whether under a state of exception or a state of normality, cannot be conceived as a weakened doubling of the thing itself. Representation instead bears the burden of the un-representable.
Chapter 5, Sections A and B deal with the essence or concept of the modern constitution. There is a slight change in cue here with the focus moving away from Schmitt towards two of Derrida’s texts. Each of the sections takes as their point of departure Schmitt’s positive concept of the constitution. Two alternative yet closely related conceptions of the constitution are then posited. Section A proceeds by way of an analysis of Derrida’s Khōra, which engages in a detailed reading of Plato’s Timaeus. Khōra, usually translated as space, place, country, field, land or region, is shown by Derrida to not simply involve a conception of place or space; it is instead the placeless place, which gives place, that is, ‘spacing’. The question is then raised whether the function of a constitution is not ultimately also to give place, similar to khōra. The suggestion in other words is that a constitution has its ‘origin’ or pre-origin in khōra. From here issues a call for justice as gift without exchange, as absolute hospitality, that is, a justice irreducible to law. Section B explores the concept of the constitution via the notions of trauma and memory. The chapter proceeds by way of an analysis of the notion of the crypt as employed by Abraham and Torok in their reading of Freud’s case study of the Wolf Man, and the reading of their text by Derrida. The chapter shows that in both the instance of a constitution and in the case of the Wolf Man, a singular trauma can be said to be at stake, which finds expression in the text produced by its authors. The chapter explores the ways in which this trauma is to be understood as well as the timing of its occurrence.
In Chapter 6 the foundation of human rights is reconsidered via Schmitt’s analyses of freedom and equality in Constitutional Theory. Schmitt here couples freedom to the rule-of-law component of the constitution, whereas equality is regarded as part of the political component. It is shown that Schmitt finds it difficult to keep these components completely separate in his analysis of the fundamental rights and the distinction ultimately collapses under the weight of the political component. Yet in this collapse a force beyond the political component appears, which can in a way be said to lie at the ‘foundation’ of these rights. A certain ‘radicalisation’ of freedom and equality in other words appears from Schmitt’s analysis, which no longer opposes equality and freedom in traditional fashion. They are both conceptualised as beyond subjectivity, mastery, autonomy and consciousness and as incorporating a certain unconditionality. Both concepts ultimately call for a welcome beyond the constraints of conditional hospitality.
Chapter 7 moves beyond Schmitt’s Constitutional Theory and explores his later thinking in respect of the notion of nomos, specifically with reference to Land and Sea and The Nomos of the Earth. In these texts Schmitt sketches in broad terms the developments in international law through the millennia, that is, the movement from a first to a second and ultimately a new nomos of the earth in the twentieth century. According to Schmitt the word nomos is to be understood in its originary sense, that is, as an appropriation of land, along with its division and subsequent production. Nomos is thus to be understood as the foundational order, yet not only of a specific domestic legal order, but of the earth as a whole. A close analysis of Schmitt’s texts nevertheless shows that nomos is already a reaction to a certain uncanniness, a pre-originary ‘not-at-home-ness’, a strangeness, which structures man and all living beings in general. Chapter 8 will conclude SAD by contrasting a reading of Schmitt ‘before’ and ‘after’ Derrida.
1 See e.g. Agamben (1998: 8): ‘The fundamental categorical pair of Western politics is not that of friend/enemy but that of bare life/political existence, zoē/bios, exclusion/inclusion’.
2 Derrida also refers to Schmitt in a number of other texts, including Rogues, ‘Autoimmunity’ and The Beast & the Sovereign, vols I and II.
3 Although Derrida explores all of these ‘themes’ in his texts, he does not necessarily do so with reference to Schmitt.
4 See e.g. Gross (2015).
5 See e.g. Freud (2001, XIV: 281) on the impossibility of eradicating ‘evil’.
6 See e.g. Derrida (1988b).
7 See in this respect, Meier (1998).
8 See in general De Ville (2011a: 1–42).
9 See especially Ltd 67–8, 70, 77–8, 85–6, 89–96, 115–19.
10 A term incidentally used by Schmitt to refer to ‘the Jew’, see further Chapter 6 below.
11 See e.g. PC.
12 The focus here will also not be on any linear developments in Schmitt’s thinking, e.g. regarding decisionism and concrete order thinking, but rather with the tensions and contradictions within Schmitt’s text as a whole.
13 One is inevitably reminded here of the claim by the Critical Legal Studies (CLS) movement in the United States that law is politics, though the exploration of the concept of the political by CLS scholars arguably remained somewhat on the surface, and the political in the thinking of CLS scholars appears to remain trapped within a circular economy.