131214840-Carl-Schmitt

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in a brilliant formulation, 38 as an imperative always contains an individual nontransferable
moment; this idea of law has always been conceived as something intellectual, unlike the
executive, which is essentially active. Legislation is deliberare, executive agere. This
contrast too has a history, one that begins with Aristotle. The rationalism of the French
Enlightenment emphasized the legislative at the expense of the executive, and it found a
potent formula for the executive in the constitution of 5 Fructidor III (Title IX, 275): "No
armed force can deliberate." 39 The least doctrinaire explanation of this principle is to be
found in The Federalist (1788): The executive must be in the hand of a single man because
its energy and activity depend upon that; it is a general principle recognized by the best
politicians and statesmen that legislation is deliberation and therefore must be made by a
larger assembly, while decision making and protection of state secrets belong to the
executive, things which "decline in the same measure as the numbers increase." A few
historical examples are given for this, and the argument of The Federalist then goes on: Let
us set aside the uncertainty and confusion of historical reflection and affirm what reason and
sound judgment tell us; the guarantee of civic freedom can only be logically implemented in
the legislative, not in the executive; in the legislative the opposition of opinions and parties
may hinder many useful and correct decisions, but the arguments of the minority do contain
or reduce the excesses of the majority in this way. Different opinions are useful and
necessary in the legislative; but not in the executive, where especially in times of war and
disturbance action must be energetic; to this belongs a unity of decision. 40
This moderate argument in The Federalist shows most clearly how little consideration was
given in the balance theory to extending the rationalism that is authoritative in the legislative
branch and parliament to the executive as well and thus dissolving it, too, into discussion.
The rationalism of this theory even maintains a balance between the rational and the
irrational (if this is what one calls things that are not accessible through rational discussion),
and even here there is nego-
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