States of Emergency - Centre for Policy Alternatives

Schmitt thought that, “…liberals found unbearable the idea that the
rule of law cannot constrain the political, so that they prefer to
pretend it constrains while recognising that in substance it does
not.” 56 Before discussing Schmitt’s model of emergency power,
however, it is useful to brieLly rehearse his broader ideas about
law, politics, and sovereignty upon which it is grounded.
For Schmitt, the concepts of sovereignty and the exception
(Ausnahmezustand) are closely related, for the “Sovereign is he
who decides on the exception.” 57 The concept of the exception
determines “…the whole question of sovereignty.” 58 The argument
about the nexus between the sovereign and the state of exception,
according to Dyzenhaus, “…is meant to make the point that the
sovereign is he who decides both when there is a state of
emergency / exception and how best to respond to that state. And
that decision for Schmitt is one based on the considerations to do
with who is a friend and who is an enemy of the state.” 59
Schmitt argues that the existence of exceptional situations negates
the forms and basis of liberal legal order, which assumes that preexisting
general norms anticipate all political exigencies, including
emergencies. As Dyzenhaus observes, Schmitt’s claim is that, “The
space beyond law is not so much produced by law as revealed
when the mask of liberal legality is stripped away by the political.
Once that mask is gone, the political sovereign is shown not to be
constituted by law but rather as the actor who has the legitimacy
56
David Dyzenhaus (2006) The
Constitution
of
Law:
Legality
in
a
Time
of
Emergency (Cambridge: Cambridge UP): p.35
57
Schmitt (1985), op cit., p.5
58
Ibid, p.6
59
Dyzenhaus (2006), op cit., p.39
57