Sovereign is he who decides on the exception.
Carl Schmitt
Autocracies are political machines, implacable and resistant, that run on the fuel of arbitrariness. However, their makers, supporters and usufructuaries insist —for purposes of propaganda and legitimization, as well as for imperatives of administrative functioning and conflict resolution— on endowing themselves with apparently democratic laws and rhetoric. Certain intellectuals, sympathizers with the tyranny, often help to maintain such a fiction. That is why it is worth it to return to the ideas of Carl Schmitt,[1] one of the thinkers who, in the most unvarnished way, offered theoretical and political support to contemporary despotism.
Schmitt sees the State as a Leviathan dedicated to maintain the peace within the national territory and to defend its integrity against other global contenders. This state-centric conception of the political order has its horizon, as a total state project, in the increase of its material and organizational capacities, as well as in its growing interpenetration with society, both processes occurring in the transition from the 19th to the 20th century.
Accepted with reservations by the Nazi regime —because of his early criticisms and his political opportunism, alien to any ideological loyalty or spiritual affinity— Schmitt provided a brutally clear vision of the dictatorial phenomenon. After differentiating the modern notion of dictatorship from its Latin predecessor, he identified a need for power, capable of consecrating the autocrat’s decision above any consideration based on law, in a scheme that turns this arbitrary power into the source and guarantor of the established order.
In times like the present, in which so many people openly or in a veiled way disbelieve in the efficacy and legitimacy of liberal democracy, the Schmittian promise rings with a threatening and terrible vigor.
By recognizing politics as an antagonistic relationship founded on the friend-enemy logic, the German jurist presents the State as an indivisible political unit, endowed with an unrestricted vocation for power; its mission cannot be constrained by parliamentary deliberations or legal formalisms. The argumentative class, Schmitt said, undermines the political vitality of the nation. Therefore, the dictator must control the State, holding the executive monopoly and the legislative power. Consecrating and achieving the realization and effectiveness of the law under the weight of the decision. In his famous Political Theology, he states: “The exception is more interesting than the rule. The rule proves nothing; the exception proves everything. In the exception, the power of real life breaks the crust of a mechanism that has become torpid by repetition.”
Schmittian thought is devoid of the ethical, juridical and political considerations of the republican logic and the social and democratic rule of law, but in tune with the political tendencies of today’s world. Schmitt questions liberal democracy —in its components of the division of powers, political opposition and parliamentary model— under the same charges used by our contemporary populists and autocrats. He denounces it for supposedly provoking national disunity, favoring the enemies of the State and serving as a vehicle for selfish particularisms. Arguments similar to those put forward today by numerous politicians, intellectuals and citizens in their dissimilar ideological variants and geographical enclaves.
Nevertheless, the arguments behind such authoritarian inclinations are anything but crude. The relationship between constituent power and constituted power, present in Schmitt’s work, problematizes the nature of the collective political subject, holder of modern sovereignty. In this sense, Schmitt reminds us that the notion of constituent power —whose origins are found in the Enlightenment— establishes that all existing powers are subject to the Constitution, whose holder is the people. A condition that cannot be arbitrarily modified by any of the political organs, which are supported, regulated and defined by the former. So far a formally democratic justification of the sources and exercise of power.
However, according to Schmitt, external coercion, general unrest and disorder can affect the free will and the exercise of the constituent power of the people, and it is the duty of the State to eliminate these impediments. A legitimization then appears for the imposition, in constitutional garb, of despotism. In this way, the people —socially diverse and politically plural— is stripped of all autonomous power in relation with the State and is substituted by a homogeneous, massified, unanimist and disempowered version of community and democracy.[2]
If we review the logics of the exercise of domination in the autocratic regimes of Cuba and Venezuela, we will find an (unconsciously) Schmittian perspective of the use and abuse of power. By unconscious I mean the formal non-ascription of these governments to the political thought of the German jurist, accompanied in fact by a materialization of the Schmittian presuppositions on Power and Law.
A law for injustice
Autocracies insist on endowing themselves with certain bodies of law. Ginsburg and Moustafa identify five main functions of the law in autocratic states: a) to establish social control and marginalize opponents; b) to reinforce the claim of “legal” legitimacy; c) to strengthen administrative compliance within the bureaucratic machinery itself, solving problems of coordination between factions; d) to facilitate trade and investment; and e) to implement policies that grant a certain political distance from the central cores of the regime.[3] Within this landscape of autocratic legalism is included the most sovereign of all rules: a Constitution. People born and educated in minimally democratic nations will see this as an anomaly. The Law of Laws, we are told, orders the life of a Republic so that its citizens have rights and duties. Then, what sense will it make, for a despotic regime, to pass a custom-made Constitution?
It is known that Stalin had a personal role in forging the Soviet Constitution of 1936,[4] which has been described as decorative because of the distance between the generous democratic principles proclaimed and the terrible reality. Brezhnev left his mark on the Constitution of actually existing socialism of 1977, which outlawed any reference to political opposition. Other socialist autocrats —Mao Tse Tung (1954), Kim Il Sung (1972), Fidel Castro (1976)— imposed their personal stamp on the constitutions of their respective nations. Nicolás Maduro and, in a secondary manner, Diosdado Cabello, have indicated the themes, rhythms and contents of a National Constituent Assembly designed with the objective of redesigning the democratic architecture of the original Chavism.
The dictatorship —commissarial first, sovereign later— becomes for Schmitt the locus of power.[5] The masses, undivided and acclaiming, become its legitimizer. And the dictator becomes the conductor and guarantor. The decision, in the hands of the autocrat, becomes for Schmitt proof of the validity of the norm. In relation to such an autocratic reading (and use) of law, he said: “The authentic leader is always also a judge. Judgeship flows from Leadership. Whoever separates the two, or set one against the other, turns the judge into a counter-leader or into the tool of a counter-leader and seeks to overturn the state with the help of judiciary.” It is clear that the concentration, in the hands of the autocrats of Havana and Caracas, of the real executive, legislative and judicial prerogatives of their respective States expresses a fusion of political and juridical roles akin to the Schmittian perspective.
To speak of an autocratic constitutionalism, with a totalitarian vocation, implies going beyond what is written on paper, recognizing a series of guiding principles of social and political life; among them, the proclamation of supreme values —such as the construction of communism— that transcend individual autonomous values and preferences and subordinate to them any loyalty to a person, idea or organization. Such constitutionalism suppresses all separation of powers, the highest leadership being an exclusive source of approval and arbitrary reinterpretation of the law.[6] And it establishes severe sanctions —in the penal code and in other norms that sometimes remain unwritten— for any transgression of the law.[7] Anyone can confirm this by reviewing the ideas embodied in the Cuban legal system —including its “new” Constitution— as well as in the fragmented legislative production emanating from the Venezuelan Constituent Assembly.
Paradoxically, it is Schmitt, a thinker attached to the other historical expression of totalitarianism (Nazism), who gives a better account of the way of conceiving, structuring and exercising the relationship between law and power, between law and politics, under Leninist-oriented regimes. By recognizing politics as an antagonistic relationship based on the friend-enemy logic, by understanding the State as a sovereign political unit —not divided between counterbalanced powers nor trapped by parliamentary deliberations—, by privileging the fulfillment and effectiveness of the law —defining the act of deciding as proof of the validity of the norm— and by conferring on the dictator the monopoly of decision and supreme legislative power, Carl Schmitt describes —better than in the texts of his peers in the radical left— those organizational elements and modes of action that characterize the exercise of totalitarian power in a communist society.[8]
The totalitarian imprint
For the Marxists the state is not dead or at the point of dying. The state is rather a means for bringing about classes and necessary to make the classless and then the stateless society. But in the meantime this state is still real, and precisely with the aid of Marxist doctrine it has received new energies and new life in the Soviet Union.
Carl Schmitt
Uninterested in the humanist rhetoric —of Marxist inspiration— that underlay the Stalinist discourse, the German jurist presents the power of modern dictatorships naked of ethical, juridical and political considerations akin to the criteria of democracy, republican logic and the rule of law. In this sense, by analyzing (and defending) an autocratic path for the setting-up and exercise of power in totalitarian regimes, Schmitt’s work becomes a more reliable map to understand their reality, unlike the official narrative of the Nazi or Soviet type of State. This explanatory suitability refers to the illiberal contents —both on the right and the left— persistent in the political thought of the Cold War. This persistence even reaches some sophisticated intellectuals of post-Marxism, post-structuralism and the most current schools of the so-called Critical Legal Studies.[9]
In relation to the above, we must remember that Schmitt recognized the capacity of a certain Marxism —the so-called Marxism-Leninism, assumed as doctrine and political strategy— to propose expeditious routes in terms of the conquest and maintenance of state power,[10] including in this process how to treat the enemy. In the first place, he understood that from that doctrine a new type of dictatorship was being born, decisively different from the temporary or permanent rule of a traditional autocrat. In this regard, he recognized that “another change in the meaning of dictatorship occurs when not only the contested political order, but also the intended government is called a dictatorship, as happens in the communist literature. This genuine state is called dictatorship in its entirety, because it is a tool in the transformation into a real state, and its justification is based on a norm that is no longer purely political or grounded in simple legal positivism; rather this state is founded in the philosophy of history.”[11]
Secondly, Schmitt noticed in the founders of the Soviet State the will to imprint a stamp of radical and existential antagonism —their friend-enemy logic, essential part of this policy— on their cause. In this regard he noted: “He who fight against an absolute enemy —be it a class enemy or a race enemy or a timeless and eternal enemy— would not have any interest for our effort regarding the criterion of ‘the political;’ on the contrary, he will see in it a threat to his direct strength for combat, a weakening provoked by reflection, a Hamlet-like state of mind and a suspicious relativization, just as Lenin rejects Struve’s ‘objectivism’.”[12]
Regarding Schmitt’s perspective on law, he argues that the act and the moment of decision —in the hands of the leader— give it meaning and validity, and that in the face of such an exercise it is not possible to invoke liberal formalities or tolerate what he calls “criminal demands.” Such logic, transferred to the coherently Soviet regimes, such as Cuba’s, and the aspirational totalitarian regimes, such as Venezuela’s, translates into the dehumanization of the dissident —portrayed as a common criminal and not a prisoner of conscience—, the manipulation of justice —with the creation of false evidence, victims and witnesses— to incriminate him, as well as the denial of the most elementary rights for his defense: timely legal advice, full access to the file by the defense lawyer, privacy in the dialogue with the defendant.
In relation to such an autocratic reading (and use) of the law, in “The Führer Protects the Law”, Schmitt expressed: “The authentic leader is always also a judge. Judgeship flows from Leadership. Whoever separates the two, or set one against the other, turns the judge into a counter-leader or into the tool of a counter-leader and seeks to overturn the state with the help of judiciary. This is an often proven method not only for the destruction of the state, but also for the destruction of the law.”[13] Any hint of checks and balances —institutional, legal or social— disappears behind such an invocation of personalistic decisionism.
If we consider that the legislative initiative in Cuba has been in the hands of the country’s leadership —particularly Fidel Castro in his half century of mandate—; that this leadership and its actions have been discursively assimilated into the notion of “the Revolution” —recognized as a “source of law” by official constitutionalists— and that the approval of decree laws by the Council of State has predominated over the laws passed by the National Assembly, it is not difficult to recognize that Schmitt’s legal logic enjoys good health in the Cuban order. A similar logic has encouraged Nicolás Maduro, under the spurious authorization of the National Constituent Assembly, to approve —in an unconstitutional manner— several economic policies, extensions of presidential prerogatives and restrictions to the powers of the opposition-led parliament.
In this form of political order, the people —socially diverse and politically plural— is stripped of all autonomous power vis-à-vis the State and replaced by a disempowered version. It is not hard to find the similarities between this vision and the narratives of the Cuban and Venezuelan leaderships, which continue to uphold the idea of a national sovereignty administered by the State —in the fields of politics and culture, emigration and the economy— as a limit to the exercise of the rights of their compatriots.
In the Cuban or Venezuelan cases, the people invoked by the official narrative —inserted in their respective constitutions— and clearly embodied in the framing instances, mobilization and state participation (electoral constituencies, popular or communal councils, municipal, provincial and national assemblies) of the so-called People’s Power is not the community of active and autonomous citizens of the republican model. The official people is that acclaiming and unitary entity which, at specific moments and in the absence of adequate institutional mediations and effective mechanisms of deliberation and accountability, legitimizes ex post the decisions of the leader.
This implies the idea of a plebiscitary or referendary pseudo-democracy —not authentically participatory, representative or deliberative— in which the will of the politically homogeneous people, which excludes diversity and annuls internal enemies, is reflected in the leader’s decision, with whom it supposedly shares objectives and values, and which takes the form of a false popular democracy, in opposition to the bourgeois liberal one, which appears in the texts and interventions of constitutionalists and officials of the island —notably José Luis Toledo— and, more recently, of his peers —such as Hermann Escarrá— in the South American country.
A sham democracy that has materialized in Cuba in several moments (First [1960] and Second [1962] Havana Declarations; constitutional reform [2002] for the irrevocability of socialism) in which the people were summoned, to the squares or in the communities, to endorse en masse the decisions of the revolutionary leadership. And that assumes, in Venezuela, the form of illegal calls —given the republican, democratic and liberal framework still formally in force of the Constitution of the Bolivarian Republic of Venezuela— to parliamentary and presidential elections, when they are not trying to put together false deliberative and re-foundational instances, from the National Constituent Assembly to the structures of the Patriotic Pole and the Communal Power.
The Schmittian inspiration, which unconsciously animates the models of autocratic governance in Cuba and Venezuela, reveals an overlapping and mixture between two non-democratic ways of conceiving the nexus between law and power, between State and Legality. On the one hand, the Government by Law (or Rule by Law) is expressed in certain laws, more or less established, that seek to regulate social, economic and administrative relations under the control and the gaze of the State. The primacy of authoritarian elements accompanied by mechanisms to residually vindicate citizens’ rights, cultivate the Rule by Law.
On the other hand, the Rule Despite Law is expressed in the flagrant trampling, by the authority itself, of the legality it has created. Closed autocracies, by seeking to proscribe all forms of civic autonomy, mistreat their own and others, enunciating despotism at its maximum and unappealable expression, under the millenary logic of brute force and State injustice. The acts of repudiation in the streets of Cuba, the incursions of the Space Action Forces (FAES) in the neighborhoods of Venezuela, as well as the torture and imprisonment of dissidents in both countries, are clear expressions of the Rule Despite Law.
A permanent threat
Schmitt questions liberal democracy —in the form of basic attributes such as the division of powers and, especially, parliamentarism— in the name of dictatorship under the charge of provoking national disunity, favoring the enemies of the State and serving as a vehicle for particular and selfish interests. These arguments are similar to those put forward by the Cuban and Venezuelan pro-government leadership and academics to question the multiparty system, to outlaw and persecute dissidence and to dismiss the possibility of campaigns and debates within the organs and elections of the Popular and Communal Power.
In that sense, Schmitt’s approach —of concentrated and decisionist power— is crudely honest with respect to the faked participatory democracy of the official Cuban or Venezuelan discourse; although in practice it coincides with the exercise of autocratic power in both nations. Likewise, his vision of a sovereignty concentrated in the figure of political leadership subordinates the law to become an instrument of state power, whether through the mechanisms of Rule by Law or the practices of Rule Despite Law.
It is worth returning to Schmitt to analyze the shortcomings, successes and limitations of his ideas; but, above all, to understand —through his prose— the true face of the new forms of despotism that today are exercised, paradoxically, in the name of the people. And if, in the face of these autocratic regimes, the Schmittian reading means an intellectual verification, it can operate as a warning sign in those corners of the world where the liberal republics of the masses have not yet succumbed. After all, in our contemporary political bestiary, the professed Schmittians and the closet Schmittians are reproducing themselves in a rapid and (not so) veiled manner. It is convenient to spot them —and fight them— in time.
[1] In Dictatorship, as well as in shorter texts such as The Concept of the Political, “The Führer Protects the Law” and “The Turn to the Totalitarian State”, Carl Schmitt expounds some of the core ideas of his philo-tyrannical thought. For more recent evaluations of his work I recommend William E. Scheuerman: The End of Law. Carl Schmitt in the Twenty-First Century, Rowman & Littlefield International, London/New York, 2020 and William Rasch: Carl Schmitt State and Society, Rowman & Littlefield International, London, 2019.
[2] Carl Schmitt: Sobre el parlamentarismo, Editorial Tecnos, Madrid, 1990.
[3] Tom Ginsburg y Tamir Moustafa (ed.): Rule by Law: The Politics of Courts in Authoritarian Regimes, Cambridge University Press, 2008.
[4] Tom Ginsburg y Alberto Simpser: Constitution in Authoritarian regimes, Cambridge University Press, 2013.
[5] According to Schmitt “while the commissary dictatorship is authorised by a constituted organ and has an identity in the existing constitution, sovereign dictatorship exists only quoad exercitium [in relation to what it does], and it derives directly from the amorphous pouvoir constituent. […] The commissary dictator is the unconditional commissar of action of a pouvoir constitué, and sovereign dictatorship is the unconditional commission of action of a pouvoir constituant.” (“La dictadura”, Revista de Occidente, Madrid, 1968, p. 193). Dictatorship, Polity Press, Cambridge, 2014
[6] Mark Tushnet: “Authoritarian constitucionalism”, Cornell Law Review, vol. 100, issue 2, 2015.
[7] Peter Bernholz: “The Constitution of Totalitarianism”, Journal of Institutional and Theoretical Economics, no. 47, 1991.
[8] For an approach to the work, life and context of Carl Schmitt I recommend in Spanish: Carl Schmitt: La dictadura, Alianza Editorial, Madrid, 2013; Héctor O. Aguilar (comp.): Carl Schmitt. Teólogo de la política, Fondo de Cultura Económica, México D. F., 2001; Leticia Vita: La legitimidad del Derecho y del Estado en el pensamiento jurídico de Weimar: Hans Kelsen, Carl Schmitt y Herman Heller, Eudeba, Buenos Aires, 2014 y Lorenzo Córdova: Derecho y Poder: Kelsen y Schmitt frente a frente, Instituto de Investigaciones Jurídicas/Fondo de Cultura Económica, México, 2009.
[9] Cfr. William E. Scheuerman: The End of Law. Carl Schmitt in the Twenty-First Century, Rowman & Littlefield International, London/New York, 2020 y Jan Werner-Muller: A Dangerous Mind: Carl Schmitt in Post-War European Thought, Yale University Press, 2020.
[10] For the German intellectual: “in Marxism, where the agent of all real political activity is not an individual but a whole class, it is not difficult to define the proletariat as a collective entity —that is, the genuine agent— and therefore to see it as the subject of a dictatorship.” (Carl Schmitt: “La dictadura”, Revista de Occidente, Madrid, 1968, pp. 22-23.)
[11] Cfr. “La dictadura”, Revista de Occidente, Madrid, 1968, p. 25.
[12] Cfr. Héctor O. Aguilar (comp.): El concepto de lo político en Carl Schmitt. Teólogo de la política, Fondo de Cultura Económica, Buenos Aires, 2001, p. 178. In another moment of this work, the German jurist praised the notion of class enemy in the Bolshevik discourse and praxis (pp. 208-209).
[13] Carl Schmitt: “El Führer defiende el derecho”, Teología política, FCE, México D. F, 2001, pp. 114-118.
