Divinity within the Law: Schmitt on the Violence of Sovereignty

This chapter examines Carl Schmitt’s claim that sovereignty is not divided between a legal and divine sovereign as maintained by Walter Benjamin; law is defined by a division between its explicit, statute form and the subtending power supporting and generating it. At the latter level, sovereignty is defined by the populace, who, living in a state of chaos, make a spontaneous and normless decision regarding its constitutional norms. At the former, constitutional level, Schmitt claims that there must always be an individual who makes the ultimate political decision regarding how to interpret and/or apply those norms. Famously, this requires that a decision be made regarding who is a friend and who is an enemy. Importantly, the constituting-power always subtends the constitution, making it possible that the populace will always usurp the constitutional sovereign. Schmitt’s point is that sovereignty is divisible, with the consequence that deposing constitutional sovereignty does not rely on divine action; it arises when the constituting-power subtending the constitutional sovereign demands an alternative juridical order.