A Critical Review of Carl Schmitt's Concept and Conception of Statehood in his Work Constitutional Theory

Throughout a lifetime, Carl Schmitt never took his mind off the ius publicum Europaeum and its fundamental unit, the state. This is because he merely changed his expressions while being conscious of the changes in his situation and environment, but carried through his conception of statehood through voluminous works. As Schmitt's work continues to be rediscovered across various academic fields rather than dying with him, there remains a need to examine the characteristics of statehood which was the Schmitt's impulse of a lifetime from the perspective of constitutional law. Considering it, this article critically reviews Schmitt's description of the concept and conception of statehood with particular attention to Constitutional Theory (hereafter Verfassungslehre) which was published in 1928. It is almost the only “systematic” synthesis of Schmitt's arguments at a time when he sufficiently showed aspects that could be classified as an étatiste, and of course, Schmitt did not abandon its intent even after the war. The description of Schmitt's Verfassungslehre, which can be read as a defense of statehood with the constitution, has the following characteristics: i) The structure of epistemology in German idealism, with “absolute identity” as its mark, is also found in Verfassungslehre. Similar to the epistemology in German idealism which presupposes “the Absolute” as the essence and then attempts to “reflect” the representations of identity from this onto the object of recognition, in Verfassungslehre, the statehood as an existing political unity is first declared without any other description, and then its explanation is given in a circular argument towards the phenomenon. The concept of the constitution is also established in the context of this absolute identity (Absolute Concept of the Constitution); ii) Schmitt had already founded the order of the Roman Catholic Church as a “complex of opposites (complexio oppositorum)” by means of Roman Catholicism and Political Form, highlighting that a concrete personality (“Person” in German) represents (“darstellen” in German) political unity in this order, and an ability to make decisions is concentrated in this personality. Referring to this in Verfassungslehre, he (re)constructs his conception of representation and at the same time reconstructs the democratic principles to conform to his viewpoint regardless of their historical and philosophical achievements to date; iii) In Verfassungslehre, each constitutional provision that can be revised and repealed by law for constitutional amendments is specified as a negative concept so-called individual constitutional laws (Relative Concept of the Constitution), and the legislative act of the parliament related to the constitutional amendment is treated critically as apocryphal acts of sovereignty; iv) In contrast to the relative concept of the constitution, the possibility of the sovereign act — of course, subjectivity — is given to the absolute concept of the constitution which is highlighted through the descriptions related above i) and to the statehood which is equal to this concept. In Verfassungslehre, Schmitt eventually made a breakthrough to bring “prerevolutionary” conditions/modes to the status quo that was changed democratically, defining the meaning of “the people” by his intent, even if he accepted the tendency of establishing a constitution to put the name of the people first which appeared as a practice after the revolution. In other words, Schmitt systematized the logic through Verfassungslehre to enable him to carry a conservative conception of statehood, without being greatly affected by changes in the constitution itself and its reality. This kind of logic allows the arguer to carry through own intent about the statehood that has been set as a model by himself/herself, regardless of any changes in reality, the constitution itself, or the interpretation of the constitution.