Political representation, a consequence of the modern state, is today said to be in crisis, specifically the representation offered by mainstream political parties. Representative state institutions in general are likewise under scrutiny. This ‘crisis’ can be detected inter alia in the low turnout for many elections, the declining membership of political parties, the general distrust in politicians and the declining interest in mainstream politics (Tormey 2015: 15–36). Those who participate in recently formed movements and parties no longer want to be ‘represented’, but rather to directly act themselves (Tormey 2015: 2; Douzinas 2013: 166–7, 194). The calls for an end to representation have been explained with reference to the perception of a by-and-large decadent and self-serving political class, the accompanying resistance to being represented by this class, as well as the effects of neo-liberalism (Tormey 2015: 60–7). The latter has led to gross inequality and concentrations of wealth, and is characterised by a suspiciously close relationship between political representation and capitalist interests (Tormey 2015: 129–30; 2012; Hardt and Negri 2011). Because of ‘globalisation’, structural changes are furthermore taking place in the nature of modern society, specifically a movement away from fixed collective identities towards a more complex mix of (non-)identities as well as towards individualisation (Tormey 2015: 68–82).
Schmitt’s reflections on representation and identity in texts such as Constitutional Theory and Roman Catholicism and Political Form, although written in a different context and with different concerns in mind, can be read as offering at least a partial response, more specifically a conceptual response, which lays claim to a certain universality, to the present ‘crisis’ of political representation. We saw in Chapter 3 above that Schmitt describes the people not only as a political unity and as the subject of constituent power, but also as natura naturans, as formless and as unorganised. ‘The people’ in these latter senses, as noted, radically disrupts any sense of the identity of a people, in line with Derrida’s thinking on identity.1 At stake here, it was contended in view also of the discussion in Chapter 2, Sections A–C above, is a certain alterity within the self, that is, a force of self-destruction, or autoimmunity.2 We will see in the present chapter that the identity of a people is, according to Schmitt, furthermore dependent on representation so that there is no real possibility of escaping from representation. Different from what is sometimes contended, Schmitt fully appreciates the lack of purity and inevitable interrelatedness of these two principles as manifested in every state form. The present chapter will moreover show a reconceptualisation as well as a certain radicalisation by Schmitt of the notion of representation. Representation for Schmitt does not simply reproduce, but enhances, and does not draw its strength in this regard from the represented, but from the un-representable, that is, from the force of self-destruction analysed in Chapters 2 and 3 above. This has certain important implications for constituent power as well as for constituted powers.
We saw in Chapter 3 above that Schmitt at first sight seems to require the presence or existence of a people as a political unity as precondition for the act of constituent power. In Constitutional Theory we for example read the following:
The people must as political unity be present-at-hand, and be presupposed, if it is to be the subject of a constituent power [Das Volk muβ als politische Einheit vorhanden sein und vorausgesetzt werden, wenn es Subjekt einer verfassunggebenden Gewalt sein soll].3
(CT 112/VL 61)
Support for the idea of the people as a presence and as self-identical, also appears on the face of it from the following passage:
The thought/concept/idea [Gedanke] of representation contradicts the democratic principle of the self-identity of the people present as a political unity [Der Gedanke der Repräsentation widerspricht dem demokratischen Prinzip der Identität des anwesenden Volkes mit sich selbst als politischer Einheit].4
(CT 289/VL 262)
Let us however look at the latter passage more closely. Schmitt in this section (entitled ‘The political component of the modern constitution’) is enquiring into the political concept of democracy and its implications. He starts off the section by defining democracy as ‘a state form that corresponds to the principle of identity [Prinzip der Identität] (in particular, of the concretely present people with itself as political unity)’ (CT 255/VL 223, emphasis added).5 He ties this understanding of democracy to the notion of the people as the bearer of constituent power which gives itself its own constitution (CT 255; Chapter 3 above). In addition, he notes that democracy can point to a method for the exercise of specific state activities (CT 255), which is how liberal constitutionalism as a rule views democracy. Democracy would then designate a governmental or legislative form, and in the system of separation of powers, one or more of these powers, for example the legislature or executive, would be organised according to democratic principles with the widest possible participation of state citizens.6 After discussing a number of other conceptions of democracy, Schmitt (CT 257/VL 225) bemoans the lack of clarity which has come about insofar as the meaning of democracy is concerned as a result of the ‘boundless extension [(grenzenlose Ausdehnung]’ of this concept into ‘a completely general ideal concept [zu einem ganz allgemeinen Idealbegriff]’. Its ambiguity is now such that it preserves a place for various ideals and ‘for everything that is ideal, beautiful and pleasant [ideal, schön und sympathisch]’.7
A few pages earlier, in Chapter 16, in discussing the rule-of-law component of the modern constitution, Schmitt (CT 235) had pointed to the three state forms traditionally recognised: monarchy, aristocracy and democracy. In the modern liberal constitution, because of its emphasis on freedom and the consequent need to limit state power, these state forms however become mere governmental or legislative forms (CT 235). An absolute monarchy thus becomes a constitutional monarchy and a pure democracy becomes a constitutional democracy (CT 235). The rule-of-law principle consequently prevents the principle of political form from being rigorously implemented, thereby moderating and limiting monarchy and democracy for the sake of liberal freedom. The liberal constitution can be said to be a mixed constitution as it combines and mixes different elements and principles of political form (democracy, aristocracy and monarchy, as well as identity and representation) (CT 236–7). Schmitt (CT 238) points out that because of this mixture of forms, liberal constitutionalism is not able to engage with the issue of political unity and constituent power. These matters are therefore simply ignored or obscured through the invocation of notions such as the sovereignty of the constitution. The question as to the bearer of constituent power is however unavoidable, Schmitt (CT 238–9) argues, because this ultimately determines the state form. It is in this context that Schmitt (CT 239–42) discusses at some length the two principles of state form: identity and representation, which are at stake in the quotation above. The way in which a political unity realises these two opposing principles, he notes, ultimately determines its concrete form (CT 239).
In analysing these two principles, Schmitt (CT 239) first reminds the reader of the relation between the state and the people (Chapter 3 above). The state, he says, is a specific status of a people, and more specifically the status of political unity. The people are furthermore the subject of every conceptual determination of the state. State, he notes, is a condition/state (Zustand), and indeed the condition of a people (CT 239/VL 205). The people can furthermore attain and retain their political unity in one of two ways:
It can already be factually and directly capable of political action by virtue of a strong and conscious similarity, as a result of firm natural boundaries, or due to some other reason. Then it is as omnipresent entity [realgegenwärtige Gröβe] in its immediate identity with itself a political unity. This principle of the identity of the always-present people [des jeweils vorhandenen Volkes] with itself as political unity, is based on the idea that there is no state without people and a people must therefore always actually be present [immer wirklich anwesend] as an existing entity [vorhandene Gröβe]. The opposing principle proceeds from the idea that the political unity of the people can never be present as such in its real identity [niemals in realer Identität anwesend sein kann] and must therefore always be personally represented by people.
(CT 239/VL 205)
At stake here are clearly the principles of identity and representation in their ideal sense.8 They cannot however find application in this pure sense in any state, as we will again see in what follows. Schmitt (CT 239) then proceeds to point out that all possible state forms, that is, monarchy, aristocracy and democracy, can be traced back to these two opposing principles. The question of the bearer of constituent power, Schmitt (CT 239) points out, is likewise dependent on such bearer’s position in respect of these two opposing principles. Where the people are the bearer of constituent power, the political form of the state is determined by the principle of identity. The nation, Schmitt (CT 239/VL 205) says, invoking Rousseau, ‘is there [ist da]; it does not require representation and also cannot be represented’.9 Absolute monarchy, on the other hand, is based solely on the principle of representation. Political unity in terms of this state form is only brought about through representation (CT 239).10 At the same time, Schmitt (CT 239–40) points out that in no state is it possible to do away with all elements of these two principles. The latter are in other words opposing points of orientation [entgegengesetzte Orientierungspunkte] for the concrete design of a political unity (CT 240/VL 206). There is thus no state without representation (CT 240). Schmitt (CT 240/VL 206) notes that not even in a direct democracy where all active citizens assemble in one place can one speak of an immediate presence and identity [umittelbaren Anwesenheit und Identität] of the people. Even in the extreme case, it will only be all the adult members assembled in this way, and also only for the time-period that they participate in such assembly.11 Furthermore, the active citizens assembled together do not as such constitute the political unity as a sum total of individuals, but only represent such unity. This unity transcends an assembly in a determined time and space (CT 240). The individual state citizen is furthermore present (anwesend) not in his individual capacity, but as state citizen, and thus in a representative capacity (CT 240/VL 206). Schmitt concludes the paragraph as follows:
A complete, absolute self-identity of the then-present people as political unity is at no place and in no moment present [vorhanden]. Every attempt to realise a pure or direct democracy must respect this limit of democratic identity. Otherwise direct democracy would mean nothing but the dissolution of the political unity.12
(CT 241/VL 207)
It should thus be clear that Schmitt does not espouse the idea of a people being immediately present to itself when exercising constituent power. No anti-representation bias is moreover to be found in Schmitt.13 There is, as Schmitt clearly spells out, no state without both the principles of identity and of representation. Representation is required because the state form that one finds in every state essentially means the representation of the political unity (CT 241). Without representation it would not be possible to bring about and maintain political unity. The principle of representation can likewise not be realised completely by ignoring the people who is always present in some or other way [immer irgendwie vorhandenen und anwesenden Volkes] (CT 241/VL 208). But there is much more to Schmitt’s conception of representation and its relation to presence, as we will see in the discussion that follows.
Although there are signs of the traditional conception of representation in Schmitt, that is, of representation being understood as a reproductive re-presentation, a weakened double of the thing itself,14 he can as noted in the introduction above also be said to radically rethink the classical concept of representation.15 He more specifically seeks to think its being not starting from ontology, that is, from an originary presence, but from what can, with reference to Derrida (WM 147), be called a certain ‘force’. In his analysis of the concept of representation in Constitutional Theory, Schmitt relies on his earlier exposition of this concept in Roman Catholicism and Political Form (1923) (RC 18–33) and in The Crisis of Parliamentary Democracy (1923) (CPD 97–8 n5). Schmitt (RC 7) praises the complexio oppositorum to be found in the Catholic Church, noting that there appears to be no antithesis which it does not embrace. He further notes that the formal peculiarity (formale Eigenart) of Roman Catholicism ‘is based on a strict realization of the principle of representation’ (RC 8/RK 14). The pope is not a prophet, but instead the representative (Stellvertreter) of Christ (RC 14/RK 23–4). ‘Such a ceremonial function’, Schmitt (RC 14/RK 24) notes, in a passage to which we will return, ‘precludes all the fanatical excesses [fanatische Wildheid] of an unbridled [zügellosen] prophetism’. The office of the priest, who likewise represents Christ (Schneider 1957: 75) is similarly independent of charisma and his position is thus separate from his concrete personality. Yet compared to the modern official, the position of the priest ‘is not impersonal, because his office is part of an unbroken chain linked with the personal assignment and concrete person of Christ’ (RC 14/RK 24). Schmitt (RC 14/RK 24) regards what can be referred to as the ‘structure of mourning (of Christ)’ at stake here, as ‘truly the most astounding complexio oppositorum’. In such distinctions, he comments, ‘lie the rational creativity and humanity of Catholicism. The church thus remains within and gives direction to the human spirit, without exhibiting the dark irrationalism [das irrationale Dunkel] of the human soul’ (RC 14/RK 24). One should keep this exposition in mind when reading Schmitt’s definition of representation which follows only a few pages later:
To represent in an eminent sense can only be done by a person, that is, not simply by a ‘deputy’ but an authoritative person or an idea which, if represented, also become personified. God or ‘the people’ in democratic ideology, or abstract ideas like freedom and equality can all conceivably constitute a representation … . Representation invests the representative person with a special dignity, because the representative of a noble value cannot be without value.
(RC 21/RK 36)
In Roman Catholicism and Political Form Schmitt (RC 19/RK 32) furthermore bemoans the contemporary disappearance of the representative capacity in society in general, which he then attempts to reinvigorate with reference to the Church. In Constitutional Theory, Schmitt (CT 243–5/VL 209–11) likewise insists that representation belongs to the political sphere and that it is something existential (etwas Existentielles). Representation is moreover essentially to be understood as rendering a being that is invisible (ein unsichtbares Sein), visible and present or brought to mind/envisioned (vergegenwärtigen) by way of a publicly present being (ein öffentlich anwesendes Sein) (CT 243/VL 209). As we saw in Roman Catholicism and Political Form above, this dialectic of the concept of representation – in terms of which the invisible is presumed as absent (als abwesend vorausgesetzt) and yet at the same time is rendered present (anwesend) – cannot be applied to simply any being (CT 243/VL 209–10). An elevated sense of being is required, which is capable of elevation into public being (das öffentliche Sein), that is, into an existence (einer Existenz) (CT 243/VL 210). In a similar way in which the Church represents the person of Christ (RC 19, 30), a people finds representation in the state:
In representation … a higher type of being (höhere Art des Seins) comes into concrete appearance [zur konkreten Erscheinung]. The idea of representation rests on a people existing as a political unity, having a higher, further enhanced, and more intense type of being [Art Sein] as compared to the natural existence [natürlichen Dasein] of some human group living together. If the significance of this distinctiveness of political existence erodes and people give priority to other forms of their existence [Daseins], the appreciation for a concept like representation also falls away.
(CT 243/VL 210)
Contrariwise, according to Schmitt,
[s]omething dead, something inferior or valueless, something lowly cannot be represented. It lacks the enhanced type of being that is capable of an existence, of rising into public being.16
(CT 243/VL 210)
Representation, Schmitt (CT 245) further points out, concerns the political unity or the people as a whole. Not simply any organ can therefore fulfil this function; only someone who rules can represent. Only the government (die Regierung) (as opposed to the administration or a commercial agency (Geschäftsbesorgung)) is thus capable of representing and realising the spiritual (geistige) principle of political existence (CT 245/VL 212). By means of this spiritual existence (geistiger Existenz) the government distinguishes itself from both a commissioned employee and a violent oppressor. The difference between a real government and a pirate thus does not lie in ideas such as justice or social utility, but in the fact that every real government (echte Regierung) represents the political unity of a people, not the people in its natural presence or existence (Vorhandensein) (CT 245/VL 212).
For Schmitt, representation in the political domain can thus only be personal. A decision, when it is really required, would otherwise be impossible. Representation conceived as such applies in Schmitt’s view primarily to the (head of the) executive, who exercises a commissarial dictatorship in a state of exception,17 but also to a constituent assembly, which as we saw (Chapter 3 above), has unlimited powers or, as Schmitt (D 124–5/DD 140–1) puts it, ‘any arbitrary power or force [jede beliebige Vollmacht]’ in adopting a constitution, that is, a so-called sovereign dictatorship. Yet, depending on ‘the strict realisation of the principle of representation [der strengen Durchführung des Prinzips der Repräsentation]’ (RC 8/RK 14), Schmitt (RC 25–6, 30–1/RK 43, 51–2) leaves open the possibility that a legislature18 and even a court19 with sufficient independence, a kind of super-state (Über-Staat) and super-sovereign (Über-Souverän), which directly and personally represents a certain idea of justice (which Schmitt in turn distinguishes from justice in the political sense, that is, retaining the status quo), can fulfil this function.20
It needs to be noted here that Schmitt’s objections elsewhere to a court acting as the guardian of the constitution21 are inter alia tied to the technological motivation behind granting such constitutional jurisdiction to the courts in liberal constitutionalism, that is, to neutralise and de-politicise, by legalising or juridifying politics.22 Echoing the argument in The Concept of the Political, Schmitt (HdV 111) however points out that the political cannot be bypassed, as every sphere of human activity becomes political when it comes into contact with deciding conflicts and questions. The political, he continues, can connect itself to any (subject) matter (Materie), and simply gives it a new turn (eine ‘neue Wendung’) (HdV 111). Schmitt ends the section by implicitly alluding to his own earlier argument in The Concept of the Political about depoliticisation, which in view of the analysis in Chapter 2, Section A above, we can read as pointing to a certain beyond of the political, which would inevitably ‘return’ in the event of a sovereign decision being taken:
Everything that is somehow in the public interest is somehow political, and nothing which substantially concerns the state, can in earnest be de-politicised. The flight from politics is [at the same time] a flight from the state. Where this flight ends, and the one who flees will end up, no one can foresee; it is in any event certain that the consequence will be either political demise or a different kind of politics.23
(HdV 111)
It thus appears that all three of the branches that traditionally belong to the trias politica can potentially be ‘sovereign’ or take ‘sovereign decisions’, in accordance with the analysis in Chapter 3 above of these concepts.24 What then are the implications of the concept of representation thus conceived for constituted powers were they to be true to the concept? We need to return here to Schmitt’s analysis of representation in Constitutional Theory and in Roman Catholicism and Political Form. We saw above that Schmitt (CT 245/VL 212) expresses the view that only the government is capable of representing and realising the spiritual (geistige) principle of political existence. Schmitt (RC 14/RK 24), as we saw, draws a distinction between representation in this ‘spiritual’ sense, and prophetism, which he associates with fanatical wildness or savagery (fanatische Wildheid). Schmitt (RC 14/RK 24), as further noted, expresses his amazement in relation to this ‘most astounding [erstaunlichste] complexio oppositorum’. As we likewise saw above, the representation at stake here illustrates for Schmitt (RC 14/RK 24) ‘the rational creative power as well as humanity of Catholicism’. In this way, Schmitt (RC 14/RK 24) continues, the Church ‘remains within the human-spiritual [Menschlich-Geistigen]; without dragging into the light the irrational obscurity/darkness [das irrationale Dunkel] of the human soul, it gives it direction’.
It is noteworthy that the drawing of the distinction between representation and prophetism is preceded in the same paragraph by a discussion of the peculiar rationalism of the Catholic Church which ‘morally seizes [erfaβt] the psychological and sociological nature of human beings’ (RC 13/RK 23). Schmitt (RC 13–14/RK 23) refers here to the Catholic Church’s association with reason and common sense, its opposition to sectarian fanaticism, its suppression of superstition and sorcery during the Middle Ages and also to Max Weber’s remark that the Church had ‘knowingly and magnificently succeeded in overcoming Dionysian cults’, as well as ‘ecstasy and destruction in contemplation [Ekstase und Untergehn in der Kontemplation]’. This rationalism of the Church, Schmitt (RC 14/RK 23) continues, lies in its institutional nature and is in essence juridical. Its great achievement lies in the specific way in which it makes the priesthood into an office, as discussed above. In psychoanalytical terms, Schmitt’s exposition of the complexio oppositorum speaks of introjection, a successful work of mourning, which as we will see in more detail in Chapter 5, Section B below, cannot however completely succeed, that is, it cannot evade incorporation.25At stake in the complexio oppositorum, as appears from Schmitt’s use of words in this paragraph such as ‘grasp’ (erfaβt), ‘victory’ (victoire), ‘battles’ (Kampfe), ‘repressed’ (unterdrückte), overcome (überwinden), and ‘kept at a distance’ (fern gehalten) in relation to human nature (RC 13–14/RK 23–4), is therefore nothing less than the ‘origin’ of the Church which finds itself incorporated, subjected, disciplined and enslaved in being surpassed (Chapter 5, Section B below).26 This ‘origin’, similar to the beyond of the political referred to above, necessarily makes a haunting return in the event of every sovereign decision. The purity of the concept of representation within the Church, which as we saw Schmitt expresses his admiration for and wishes to extend to the state as well, therefore is not attained without a certain pólemos. ‘Fanatical’ and ‘unrestrained’ prophetism, which Schmitt (RC 14/RK 24) associates with the ‘irrational obscurity of the human soul’, has to be battled against, incorporated and overcome for ‘pure’ representation to arise. Representation understood thus does not involve only a reversal of the traditional relationship between presence and representation, but a certain beyond to this opposition.27 Returning to Derrida (1976a: 163), we can speak here of the abyssal structure of representation in its relation without relation to prophetism. The latter can, in view of Schmitt’s analysis, also be referred to as the unrepresentable (Derrid2007: 128),28 as absolute hospitality, or the gift without return to the self (Chapter 5, Section B below).29 The un-representable, even though it inevitably needs to be limited or constrained (Derrid1976: 179–92), also calls for affirmation.
The analysis above has sought to show the inextricable relationship between identity and representation in Schmitt’s thinking. We saw that according to Schmitt these principles cannot find application in their pure sense in any state, due to their interlinking nature. Insofar as the structure of representation is concerned, we saw that it establishes itself by overcoming what Schmitt refers to as ‘fanatical’ and ‘unrestrained’ prophetism, and which he associates with an ‘irrational obscurity or darkness of the human soul’. It was contended above that this ‘overcoming’ should be understood in a quasi-psychoanalytical sense as also involving an ‘incorporation’, the ‘object’ of which returns in every sovereign act of self-preservation. This structure of representation has important implications for both constituent and constituted powers if they are to be ‘true’ to the ‘democracy to come’ (Chapter 3) as well as to a certain unconditional equality and freedom (Chapter 6). Insofar as the sovereign dictatorship of a constituent assembly is concerned, it should no longer be thought of primarily in terms of sovereignty, that is, as the strongest force, but, to paraphrase Schmitt (CT 243), in terms of something inferior or valueless, something lowly that cannot be represented, that is, the weakest force. Insofar as constituted powers are concerned, this structure of representation has important implications for the principle of separation of powers, which according to the liberal model is to be understood primarily with reference to unlimited individual freedom, and thus as requiring limitation. All constituted powers falling within the trias politica, that is, the legislature, executive and judiciary, as well as the powers of the future that will replace them, whether or not representative in the traditional sense, must represent this weakest ‘force’ in their role as guardians of the constitution.30
1 See e.g. TOH 11; Derrida (1997b: 14) where he speaks of the ‘impossibility of being one with oneself’.
2 See e.g. ‘F&K’ 51/F&S 79: ‘no community [is possible] that would not cultivate its own auto-immunity, a principle of sacrificial self-destruction ruining the principle of self-protection’, and ‘F&K’ 64/F&S 98: ‘A certain interruptive unravelling is the condition of the “social bond”, the very respiration of all “community” ’.
3 See also CT 271/VL 242: ‘Alongside/next to all normativisations, the people remain present-at-hand as a directly present, real entity [Neben allen … Normierungen bleibt das Volk als unmittelbar anwesende … wirkliche Gröβe vorhanden]’.
4 See in this respect Lindahl (2008a: 13) who contends that according to Schmitt ‘whereas constituted powers represent the people, the latter, when exercising constituent power, is immediately present to itself’. Lindahl (2003; 2008a: 13; 2008b: 337; 2015) has, in opposition to Schmitt’s thinking in this regard, advocated the idea of the paradox of constituent power. In terms of the latter approach, constituent power not only entails the institution of a new legal order by a collective self, but also the constitution of the collective self by such legal order.
5 See CPD 26/GLP 35 on the other forms of identity that are of importance in a democracy: of governing and governed, ruler and ruled, of the subject and object of state authority, identity of the people with its parliamentary representatives, identity of the state and the current voting population, identity of state and law, identity of the quantitative (the numerical majority or unanimity) with the qualitative (correctness (Richtigkeit) of laws). Schmitt emphasises that at stake here is not some actual or palpable identity, but the recognition thereof.
6 See further Schmitt (2002c: 296/SGN 45–6) where he points out that democracy for liberalism is not about the form of state, but that it (democracy) instead determines the organisation of the legislature and the executive. In this way all the consequences of democracy in the political sense are avoided.
7 See also CPD 24–5; GLP 32–4. An echo of this (perverted) sense of democracy as beautiful is to be found in Rog 26 where Derrida analyses Plato’s description of the multi-coloured beauty and attraction of democracy, linking this to a certain seduction and provocation; see also the discussion in Chapter 3 above on the lack of essence of democracy; and see Chapter 1 above on the metaphysical strategy employed here by Schmitt.
8 See also CT 248.
9 See also CT 272.
10 See also CT 308.
11 See also Tormey (2012: 134) on the inescapability of representation, even in respect of today’s so-called post-representative movements.
12 See further CT 248/VL 214–15 where Schmitt notes that the rigorous realisation of the principle of identity would mean minimal government with the consequence that ‘a people regresses from the condition of political existence into one that is subpolitical, thereby leading a merely cultural, economic, or vegetative form of existence and serving a foreign, politically active people’; see further Neumann (2015: 153).
13 Such a bias against representation in favour of presence (i.e. the living present) is incidentally associated by Derrida with the prejudice against writing, which ultimately involves a repression of the relation to death; see De Ville (2011a: 58–60).
14 See e.g. Böckenförde (1997: 18) who points to a certain tension in this respect in Constitutional Theory, i.e. between the representation of something real, and the representation of something which is only thereby brought into existence. In respect of the first-mentioned, Böckenförde says that representation here ‘appears like a picture of something already present’.
15 The analysis that follows proceeds along similar lines as Derrida’s analysis of Marin’s work on representation and the image in WM 142–64.
16 ‘Etwas Totes, etwas Minderwertiges oder Wertloses, etwas Niedriges kann nicht repräsentiert werden. Ihm fehlt die gesteigerte Art Sein, die einer Heraushebung in das öffentliche Sein, einer Existenz, fähig ist.’
17 The invocation by Agamben (1998: 9; 2005: 1–31, 57–9) of Walter Benjamin to the effect that the exception has become the rule in Western democracies finds support in Derrida’s thinking, yet it takes on an a-phenomenological ‘meaning’: it does not simply mean that there is a coincidence between the rule and the exception; the exception is understood as the event (Ereignis) that gives Being and which necessarily returns in the enforcement or conservation of the rule; see Chapter 2, Section A above and see further below. Agamben’s analysis in Potentialities (at 160–74) of the ‘real state of exception’, again with reference to Benjamin, however seems closer to that of Derrida. See somewhat similarly Žižek (2000: 114) who reads Schmitt’s notion of the exception in Lacanian terms: ‘it stands simultaneously for the intrusion of the Real (of the pure contingency that perturbs the universe of symbolic automaton) and for the gesture of the Sovereign who (violently, without foundation in the symbolic norm) imposes a symbolic normative order: in Lacanese, it stands for objet petit a as well as for S1, the Master-Signifier.’
18 In CT 250–1 Schmitt leaves open this possibility for parliament, however not as conceived under liberalism, that is, where members of parliament represent party interests. Instead, parliament should act as representative of the people, conceived as a unity; see also CT 242; RC 25–6; and CPD 5, 97–8 n5.
19 See Schmitt’s remarks concerning an International Court of Justice in RC 30–31; and see Voigt (2015a: 231). See further CT 82 where Schmitt comments on the fact that a constitution sometimes contains a number of compromises so that no decision is actually taken regarding certain matters. It is then left to the legislature, and to precedent to take the required decision.
20 Schmitt (RC 29/RK 49) further remarks that secular jurisprudence or legal science (weltliche Jurisprudenz) shows a similar kind of complexio of opposing principles and tendencies: ‘As in Catholicism, within it lies a peculiar mixture of the faculty of traditional conservatism and revolutionary resistance in a natural law sense.’
21 See e.g. HdV 19, 32–3 where Schmitt notes that a judiciary presupposes norms whereas a guardian of the constitution needs to act beyond norms; a court furthermore acts post eventum and is thus always politically too late; for a critical discussion of Schmitt’s position, see Neumann (2015: 220–36), and specifically on this point, 229–30.
22 Schneider (1957: 191) in his analysis of Schmitt on this point puts it as follows: ‘The attempts to save the state through neutralisation in the sense of “depoliticisation” by experts, by neutral judges and officials … arise from a belief, which is at least connected to the belief in technology, a belief that it will someday be possible to construct a self-regulating, perfectly functioning state machinery, which makes all human decision-making superfluous.’
23 ‘Alles, was irgendwie von öffentlichem Interesse ist, ist irgendwie politisch, und nichts, was wesentlich den Staat angeht, kann im Ernst entpolitisiert werden. Die Flucht aus der Politik ist die Flucht aus dem Staat. Wo diese Flucht endet, und wo der Flüchtende landet, kann niemand voraussehen; jedenfalls ist sicher, daβ das Ergebnis entweder der politische Untergang oder aber eine andere Art von Politik sein wird.’
24 In terms of the dominant constitutional model in the world today, it is Constitutional Courts or their equivalents that are most likely to be regarded as such, despite Schmitt’s objections.
25 See also WM 159–61.
26 Note in this respect the apt remark of Patočka (1996: 101): ‘[S]exuality illustrates how inevitably the orgiastic realm is brought into a relation to the sphere of responsibility. This bringing into relation to responsibility, that is, to the domain of human authenticity and truth, is probably the kernel of the history of all religions. Religion is not the sacred, nor does it arise directly from the experience of sacral orgies and rites; rather, it is where the sacred qua demonic is being explicitly overcome. Sacral experiences pass over [into] religious as soon as there is an attempt to introduce responsibility into the sacred or to regulate the sacred thereby.’ For commentary, see Derrida (2008a: 3–35).
27 See also Chapter 2, Section B above on the double, and Chapter 6 below on representation in cinema.
28 This would also be applicable if representation is understood in a linguistic sense, i.e. of language as a system of representation; see De Ville (2011a: 57–60). The Constitution here would in a sense ‘represent’ the people, as Lindahl (2008a), for example, explores by way of speech act theory.
29 See also Lindahl (2013: 253–60) who argues that because of the lack of foundation of a legal order, a certain ‘responsability’ arises in the event of claims that fall within the category of the ‘a-legal’, i.e. to respond by acknowledging such lack of foundation. This ‘responsability’ can be said to seek to avoid a simple return of the collective to itself, and to entail at least a form of conditional hospitality.
30 See further Derrida and Roudinesco (2004: 83) on a different understanding of revolution; and the essay ‘Force of Law: The “Mystical Foundation of Authority” ’ in AR 230–98 on the role of specifically the judiciary in this regard.