Theoria

In Part I, §3 “The Positive Concept of the Constitution,” discussing the principle that “the constitution in the positive sense originates from an act of the constitution-making power,” Schmitt notes, “Considered juristically, what exists as political power has value because it exists.” The general point Schmitt is making – and this general point concerns the entirety of Part I – is that there is a fundamental distinction between “the constitution” and “constitutional laws.” The constitution rests on the pre-existing political unity of the constitution-making power while constitutional laws rest on the pre-existing constitution. His polemical argument is that – especially in Weimar, but generally in most parliamentary democracies – the distinction between constitution and constitutional law is meaningless: the amendment formula is formally equivalent to any particular constitutional law. He gives the examples of Art. 76 (“The constitution can be amended”) and various other clauses such as Art. 119 (“marriage is the foundation of family life) and Art. 135 (“all inhabitants of the Reich enjoy full freedom of belief and conscience”). The problem here is is that the amending formula found in Art. 76 can just as easily amend Art. 119 as it can amend itself. Thus, Art. 76 makes it possible that Art. 119 be re-written (e.g., sodomy is the foundation of family life) and makes it possible that Art. 76 be re-written (e.g., the constitution cannot be amended).

In order to avoid these problems, it is necessary that we have a distinction between constitution and constitutional laws. Thus, we need to consider, first, the relation between the constitution-making power and the constitution. If we are looking at the constitution-making power/constitution relation, then we come about a new problem: how stable is the constitution-making power itself? Does the constitution-making power have any rights prior to the constitution?

Schmitt’s discussion is quite interesting in this respect. Schmitt has recourse to natural right; i.e., the right to self-preservation. But, significantly, Schmitt does not cite Hobbes on this point, but, rather, he cites Spinoza. Hobbes, of course, writes extensively on natural right and on conatus, but Schmitt does not cite these. Rather, he cites Spinoza’s doctrine of conatus from Part III of the Ethics (and not, interestingly enough, the discussions of natural right in either the PT or the TPT).

Considered juristically, what exists as political power has value because it exists. Consequently, its “right to self-preservation” is the prerequisite of all further discussions; it attempts, above all, to maintain itself in its existence, “in suo esse perseverare” (Spinoza); it protects “its existence, its integrity, its security, and its constitution,” which are all existential values.

See Ethics, Part III, Props. 6-8. Spinoza’s ultimate conclusion is that the thing is conatus.