131214840-Carl-Schmitt

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ernment of the United States of America can be designated with particular emphasis as a
government of laws in contrast to a government of men." 30 The usual definition of
sovereignty today rests on Bodin's recognition that it will always be necessary to make
exceptions to the general rule in concrete circumstances, and that the sovereign is whoever
decides what constitutes an exception. 31 The cornerstone, therefore, of constitutional and
absolutist thought is a concept of law. Not of course the concept that in Germany one has
called law in the formal sense ever since Laband, 32 according to which everything that comes
into existence with the agreement of the popular assembly can be called law, but rather a
principle that accords with certain logical attributes. The crucial distinction always remains
whether the law is a general rational principle or a measure, a concrete decree, an order.
If only those regulations which have come into effect with the cooperation and participation
of the popular assembly are called laws, then it is because the popular assembly, that is, the
parliament, has taken its decisions according to a parliamentary method, considering
arguments and counterarguments. As a consequence its decisions have a logically different
character from that of commands which are only based on authority. This is expressed in the
biting antitheses of Hobbes's definition of law: "Every man seeth, that some lawes are
addressed to all the subjects in generall, some to particular Provinces; some to particular
Vocations; and some to particular Men." To an absolutist it is obvious "that Law is not
Counsell, but Command," 33 essentially authority and not, as in the rationalist conception of
the law in Rechtsstaat theories, truth and justice: Autoritas, non Veritas facit Legem
("Authority, not truth, makes the law"). Bolingbroke, who as a representative of the balance
of powers theory of government thought in terms of the Rechtsstaat, formulated the contrast
as one of "Government by constitution" and "Government by will.'' He distinguished between
constitution and government so that the constitution contained a system of rules that is
always and at all times valid, whereas government was what actually occurred at any time;
the one is unchanging,
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