From the Distinction between Friend and Enemy to the Manifestation of Concrete Will: Schmitt's Sovereignty in the Dialectic of the Political and the Legal

Abstract

Ignoring the political aspect of sovereignty forms a significant part of the legal and political discourse. But, Schmitt teaches us that the ruler's ability to set aside legal norms when an exception occurs, rather than using authority through these norms, constitutes the essence of sovereignty. We should understand this Schmittian doctrine in the context of his understanding of the Constituent power. The power's concrete will and the ruler's representation decide the constitutional law and written constitution. The meaning of constitutionalism lies in its concrete reality, not in norms above this will. Constitutional norms have no authority other than this will. To understand the ruler's decision-making in exceptional circumstances, we must view it through Schmitt's idea of sovereignty. The center of sovereignty is based on a representative of the constituent power. The ruler acts as a representative of this power using sovereign authority. To achieve a correct understanding of the system of constitutional law, one must consider sovereignty and emphasize its political aspect; this article analyzes sovereignty from Schmitt's perspective and emphasizes that claiming to limit sovereignty through written norms leads to misunderstandings of sovereignty and constitutional law. This article shows that analyzing sovereignty through Schmitt's concept is important. It helps us understand political and legal thought better and avoid confusion.

Keywords

• modern state
• constituent power
• constitution
• constitutional law
• political will