The critique of normativism

The critical thrust of Schmitt's writings on state and law is oriented to rescuing the priority of the former over the latter, thereby reversing the normativist strategy of subordinating the state to law. This reversal is also key, in his view, to recovering collective freedom as a primordially political category. Kelsen's legal theory represents, in Schmitt's view, the most radical attempt to empty the concepts of state and freedom of their properly political content, to the extent that Kelsen identifies law and state. I will be content to offer a nutshell account of Kelsen's monism and of its implication for the concept of collective freedom before turning to Schmitt's critique thereof.

According to Kelsen, ‘the theory of public law assumes that the state, as a collective unity that is originally the subject of will and of action, exists independently of, and even prior to, the law.’Footnote ² This dualistic view of state and law reifies the state by making of it a ‘macro-anthropos’ which would be anterior to the legal order that it allegedly creates. Yet, notes Kelsen, there is no such collective subject: all state acts are nothing other than acts by individual human beings which are or can be imputed to the state as its acts. To impute an act to the state, to view it as ‘its’ act, is simply to assert that an act is authorized by a norm. Accordingly, there is no subject ‘behind’ a legal order, no collective ownership of legal acts: ‘[t]he state … is a legal order.’Footnote ³ The state is simply the personification of a certain kind of legal order, one which enjoys a certain measure of centralization with respect to the creation and application of legal norms. Conversely, only those acts which are legal acts, that is, which are authorized by a legal order, can be viewed as state acts. In this sense, every state is a Rechtsstaat, since ‘[t]here can be no state that does not have or does not yet have, a legal order, since every state is only a legal order’.Footnote ⁴

What, then, is a legal order? The unity of a plurality of legal norms, answers Kelsen. Indeed, a manifold of legal norms form a unity ‘if the validity of the norms can be traced back to a single norm as the ultimate basis of validity. This basic norm qua common source constitutes the unity of the plurality of all norms forming an order.’Footnote ⁵ This account of a legal order implies a regressive strategy which leads from the act of creating a norm to the applied norm and thereon back to the basic norm, which must be presupposed, rather than posited, to make sense of the first constitution as a constitution and of certain social orders as states.

A progressive approach is also possible, which reveals a legal order as an ordering – a dynamic – process whereby a higher-level norm is applied in the act of creating or positing a lower-level norm. This progressive approach to law and state yields the key to the notion of collective freedom available to normativism in its Kelsenian version. Strictly speaking, Kelsen does not outline a theory of collective freedom because he explicitly rejects the notion of political unity as flying in the face of the ‘national, religious and economic’ heterogeneity which characterizes society.Footnote ⁶ Self-rule, as the core of the concept of freedom, is individual freedom, an aspiration that democracy both facilitates and strongly tempers. In the same way that the state is but the personification of a legal order, so also, for Kelsen, collective freedom, as collective self-rule, has no independent meaning of its own; at most, it simply means that ‘the law governs its own creation. In particular, it is a legal norm that governs the process whereby another legal norm is created and also governs – to a different degree – the content of the norm to be created.’Footnote ⁷ Once the identity of law and state has been postulated, the enactment of a constitution can no longer be seen as an act of collective self-rule, for there is no longer a community – a political unity – to which the act of constitution making can be attributed as its owner; collective self-determination becomes ‘the constantly regenerating process of [the law's] self-creation’.Footnote ⁸ The ‘self’ of legal self-creation no longer speaks to the identity between a legal order and a political unity, such that a community is free to the extent that the legal order corresponds to, or articulates, what joins together the collective's members as a political unity; it becomes a purely legal form of identity in which the legal order remains the same over time to the extent that each new act of norm-creation can be viewed as part of a single, on-going process of legal ordering.

So much for the relation between state, law and freedom in its normativist interpretation. We can now turn to Schmitt's attack on normativism, which develops along at least three fronts, or so I will argue. I have elsewhere staunchly defended Kelsen's account of the emergence of legal orders against Schmitt's critique of the pure theory of law.Footnote ⁹ Thus, while I think that Kelsen's pure theory of law can be defended, at least partially, from Schmitt's objections, I will undertake no such defence in reflecting about the relation between law, state and freedom. Only at a later stage of the argument will I briefly revisit the significance of Kelsen's account of the genesis of legal order for a critique of Schmitt's interpretation of this three-way relation.

Schmitt's first objection turns on the internal contradiction at the heart of what might be dubbed (if one follows Schmitt) Kelsen's ‘positivistic normativism’. Schmitt notes that a properly normative account of the validity of legal norms, hence of the unity of a manifold of norms, cannot but embrace natural law if it is to be consistent, such that the individual norms composing a legal order are valid if they are correct, and they are correct if their content has certain substantive qualities, that is, if they are derived from certain substantive principles deemed to be valid unconditionally. But Kelsen will have no truck with natural law, instead defending a normativist approach to positive law. This will not do, Schmitt claims. A theory of positive law must acknowledge that law is posited law and hence that there is a collective subject in the form of a political unity that enacts the law. Accordingly, and this is key to Schmitt's move to sever the normativist identification of state with law, ‘the concept of legal order contains two entirely different elements: the normative element of law and the existential element of concrete order. The unity and order lies in the political existence of the state, not in statutes, rules and whatever other normativities.’Footnote ¹⁰ By uncoupling order and law, Schmitt seeks to reclaim the dualism Kelsen had sought to supress. The state is anterior to the law as the concrete order – the political unity – which enacts or posits a constitution in the legal sense of the term: a constitutional law (Verfassungsgesetz). Prior to this legal sense of a constitution there is a political sense of the constitution which is synonymous to the state. A state does not merely ‘have’ a constitution; it is a constitution (Verfassung), ‘a particular type and form of state existence’.Footnote ¹¹ Legal order as the unity of a manifold of legal norms is unintelligible unless it leads back to and is the expression of political unity – a concrete order.Footnote ¹² Schmitt effectively argues that the identity of state and constitution is necessarily presupposed and called into question during constitutional crises, about which I will say more later.

Schmitt's second censure of normativism follows from the first, even though it features less prominently than the former. Its gist is that the concept of legal order outlined by Kelsen is incapable of making sense of states as individual states. What renders a legal order a particular legal order becomes part and parcel of the content of the basic norm which must be presupposed when making sense of a manifold of legal norms as a unity. While there can be no basic norm absent the presupposition of a normative content, the latter functions as a given for normativistic legal theory rather than as an object of enquiry. In other words, the individuality of states is not part of an enquiry into the statehood of states nor of the orderliness of orders. Schmitt protests: in its fundamental sense, the constitution ‘only designates the concrete, individual state, such as German Reich, France, or England, in its concrete political existence’.Footnote ¹³ Concrete-order thinking (konkrete Ordnungsdenken) is a type of juristic thought for which the individuality of a political community is the key to understanding the nature of the relation between state and law and, by implication, between state, law and freedom. Schmitt avers that a correct characterization of collective freedom cannot but begin from the recognition that it is, first and foremost, our freedom which is at stake in law making and law enforcement, that is, the ‘possibility of choosing, by virtue of [our] own decision, the kind and form of [our] own existence’.Footnote ¹⁴ And this individual community's decision, in the twofold sense of a decision by a individual community and a decision about its individuality, has two faces: a self-identification and a differentiation with respect to what is alien or strange to it. Hence, collective self-rule is, at bottom, a decision about what defines us as a concrete order – as an individualized and individualizable community.

There is yet a third line of attack which Schmitt opens up in a later work explicitly oriented to introducing concrete-order thinking. To the extent that normativists pay any attention to the social reality external to the legal order, it is to ask whether that reality corresponds to the legal order. ‘For [normativists] … an order exists essentially in that a concrete situation corresponds to general norms against which it is measured.’Footnote ¹⁵ A murder is not a manifestation of social disorder but rather a ‘fact’ (Tatbestand) to which the legal norm assigns certain consequences. Whereas a manifold of legal norms are in order as long as the norms are valid, the disorder that befalls a community when an illegal act has been perpetrated is banned from the domain of legal theory, registering only as the sociological problem of the efficacy (or lack thereof) of legal norms. While normativism is prepared to accept that efficacy is a condition for legal validity, it denies that efficacy is an ingredient of the concept of validity, circumscribing the latter to a specific relation between norms. As a result,

Schmitt vigorously pushes back against this reduction of concrete order to legal order, of state to law, and of legal theory to a sociology of law, arguing that

By defending the priority of normality over normativity, Schmitt effectively fleshes out more fully the strong thesis that a state is a constitution, to the extent that the validity of constitutional laws is only comprehensible to the extent that such laws are the juridical expression of a constitution in the sense of a normal way of being that defines a collective as a political unity. I will return to this point later, when discussing constitutional crises.

Notice, for the moment, that this view involves a remarkable turnabout in Schmitt's appreciation of normality, as compared to his appreciation thereof in Political Theology. In this earlier work, Schmitt was concerned to defend the ex nihilo character of the decision, for which normality has no value of its own. To the contrary, whereas normal situations cover over a decision qua political decision, the exception brings it out into the open. As Schmitt trenchantly puts it in Political Theology, for a ‘philosophy of concrete life’, ‘the exception is more interesting than the normal case. The normal proves nothing; the exception proves everything: it confirms not only the rule but also its existence, which derives only from the exception.’Footnote ¹⁸ In Three Types of Juristic Thought, Schmitt still aims to expose the derivative status of legal norms and rules. But, by contrast with the earlier work, in this later text legal norms are derived from normality, rather than from a decision. More precisely, Schmitt grounds the validity of normativity in normality. This grounding is, at least at first glance, consistent with his insistence on the need to rescue the individuality of states as a constitutive feature of states as such. Indeed, normal behaviour can be construed as the ‘manner of existence’ – the Daseinsweise – of a collective, which allows its members to identify themselves as a group, while distinguishing themselves from other groups.Footnote ¹⁹ To assert that norms follow normality, hence that law is subordinate to the state, means, in Schmitt's view, that legal orders regulate the state in a twofold sense of the term ‘regulate’: legal norms are valid to the extent that they articulate and preserve normality.

Authoritative collective action

As should be clear by now, concrete order is of capital importance to Schmitt's thinking about the relation between state, law and freedom. But what is concrete order? More precisely, what determines concrete order as an order? And what determines concrete order as concrete? Remarkably, Schmitt nowhere addresses these questions directly and in a systematic fashion.Footnote ²⁰ A parallel lacuna concerns the concept of political unity, which is omnipresent in Schmitt's thinking about the state. Despite Schmitt's insistence that the unity of a political order precedes and is the condition of possibility of the unity of a manifold of legal norms, the reader remains at a loss as to the sense in which a community is a political unity. As Schmitt puts it, the act of constituent power ‘constitutes the form and type of the political unity, the existence of which is presupposed’.Footnote ²¹ This omission is a source of considerable embarrassment for Schmitt, in light of his critique of Kelsen. For if, as he objects to Kelsen, the unity of a manifold of legal norms rests on a presupposition that is itself beyond the pale of theoretical enquiry, does not Schmitt himself fall prey to this very objection insomuch as he rests satisfied with ‘presupposing’ political unity? What, then, differentiates Schmitt's defence of the priority of political unity over the unity of a manifold of legal norms from Kelsenian normativism?

I will shortly return to the nature of the presupposition of political unity at work in the relation between state and law. But first I would like to prepare the ground for examining the notion of concrete order. Schmitt himself provides the cue as to how to go about this when acknowledging the proximity of his work to the institutionalist theories of law developed by Maurice Hauriou, in France, and Santi Romano, in Italy.Footnote ²² In particular, Schmitt draws inspiration from Hauriou, who argues that a legal order can best be understood as an institution. According to Hauriou, an institution is

Hauriou parses this definition into three elements. The first and most important is the idée directrice, which gathers together a manifold of individuals into a social group the action of which is oriented to realizing that idea. The second is governmental power at the service of and organized with a view to realizing the idée directrice. The third is those events in which the members of the social group, as well as its governmental organs, manifest their allegiance to the group as a whole and its guiding idea, such as the spontaneous coming together of individuals at the foundation of new social and political institutions, shareholders’ meetings, elections and so on.

I cannot examine here in any detail Hauriou's theory of institution, nor Schmitt's reception thereof.Footnote ²⁴ While it contributes to clearing the ground for addressing the questions indicated at the outset of this section, it also has a decisive disadvantage. In effect, it takes for granted, without clarifying, the concept of collective action germane to institutions, hence the perspective whence concrete order can appear as such: the first-person plural perspective of a community. It is telling, in this respect, that Schmitt goes no further than referring to concrete orders as ‘suprapersonal’ (überpersönlich), an expression in which the particle ‘supra’ names a problem instead of addressing it.Footnote ²⁵

An initial and decisive step is taken if we introduce the concept of collective action into a theory of law as concrete order. Assuredly, whereas Schmitt's notion of concrete order has an unmistakably anti-liberal purport, contemporary philosophers usually conjoin a theory of collective action to a theory of liberal democracy.Footnote ²⁶ My interest in this chapter is somewhat different, namely, to explore how collective action could illuminate the concept of concrete order. My purpose therewith is not merely to present Schmitt in his strongest light but also to offer a critique of his understanding of the relation between state, freedom and law in a way that need not take for granted the assumptions of a liberal theory of democracy.

In any case, Margaret Gilbert's adroit distinction between two uses of the pronoun ‘we’ – we each and we together – offers a good point of departure for an enquiry into the first-person plural perspective proper to joint or collective action.Footnote ²⁷ The first use of ‘we’ bespeaks an aggregative, the second an integrative, use of this pronoun. Take the example of a manifold of individuals milling around on a platform, waiting to catch a train. An aggregative use of the expression corresponds to a situation in which each of those individuals will take the train to carry on with her or his activities: we each. But suppose that the individuals are getting ready to leave on a joint vacation. Then they are a manifold of individuals who act jointly: we together. While joint action involves the acts of a plurality of individuals, theirs are participatory acts to the extent that their acts contribute to realizing the point of joint action, that is, what joint action is about – its idée directrice, as Hauriou would put it. The two uses of the pronoun ‘we’ point to two entirely different interpersonal situations. If, in the second case, one of the vacationers risks being left behind because she hasn't noticed that the train is on the verge of leaving, then she would be entitled to expect and demand of the other members of the group that they alert her to the train's departure so that she can step on board before it pulls out of the station. Doing something together entails mutual obligations and rights, as well as the standing to rebuke members of the group who do not fulfil the obligations derived from joint or collective action.Footnote ²⁸ No such mutual obligations and rights ensue when a manifold of individuals are taking the train to continue with their daily chores and activities. If a distracted commuter misses the train, then that is tough luck, but the problem is hers and hers alone; after all, each of us is taking the train on his or her own.

Collective action, thus described, is the genus of the concept of order apposite to politics and law. A further feature must be introduced, however, if we are to distinguish the form of collective agency appropriate to politics and law from, say, walking or playing music together.Footnote ²⁹ This is where structures of authority come into the picture. In contrast to forms of joint action, such as walking or playing music together, collective agency in the strong sense demanded by politics and law involves a structure of authority whereby certain individuals, acting on behalf of the group, monitor joint action as concerns its point and consistency over time and take steps to uphold joint action when its point is breached or when the consistency of joint action over time is otherwise undermined or imperilled. Accordingly, collective agency appropriate to politics and law turns on how questions about joint action are dealt with. In effect, questions about its point – about the rights, obligations, entitlements and responsibilities that arise in the light of that point; about the consistency of participatory agency with regard to the point of joint action; and finally, about the consequences that follow from inconsistency therewith – are not left over to the collective's members to decide separately for themselves. These and related questions, especially if they are the source of conflict, are settled by authorities who act on behalf of the group as a whole, such that dissenters are bound by that decision and can, in principle, be forced to comply with it. It is in this way that, to borrow Hauriou's expression, ‘power organs’ are constitutive features of institutions. The relation between politics and law concerns authoritative collective action, as I will call it.

Concrete order

This is, admittedly, a crude and highly abridged formulation of the concept of collective action and of its institutionalized forms, certainly when compared to the extremely refined analyses of these phenomena in the contemporary debate about collective action. But it suffices for our present purposes. The immediate question is how this account of authoritative collective action sheds light on legal order as an order and as concrete.

Schmitt chides Kelsen for reducing legal order to the unity of a manifold of legal norms. ‘An order, including a legal order, is, for concrete-order thinking, not in the first instance a rule or a summation of rules but, inversely, a rule is only an element and a means to order.’Footnote ³⁰ Yet Schmitt eludes answering the crucial question: what determines concrete order as an order? If, most generally, an order is the unity of a manifold of elements, in what sense is a concrete order the unity of a manifold, albeit not merely a manifold of legal norms, as Kelsen would have it?

Authoritative collective action bespeaks the unity of a manifold in that it is not simply a summation of acts, such as in ‘we each’, but rather the integration of a plurality of participant acts into a single act. That is to say, a manifold of acts are unified into joint action. In turn, that a plurality of acts can be viewed as an interlocking web of participant acts turns on the fact that each of these acts, even if carried out by different individuals, is oriented to realizing the point of joint action. Accordingly, collective action is the unity of a manifold of agents and of their acts. A point, an idée directrice, allows selecting the who and the what of joint action, both differentiating and relating kinds of agents and kinds of acts. That concrete order is an order means that joint action selects and interconnects different kinds of agency and different kinds of acts which are relevant to realizing the point of joint action.

This preliminary insight can be pushed a step further. In The Three Types of Juristic Thought, Schmitt introduced the notion of nomos to denote a ‘comprehensive concept of law which also includes a concrete order and community’.Footnote ³¹ But he does not further develop this notion in a way that casts new light on the orderliness of concrete order. By contrast, Schmitt's later text, Nomos of the Earth, re-appropriates nomos in a way that stresses the spatial dimension of concrete order: ‘law as the unity of order and emplacement’.Footnote ³² Emplacement means here an act of land-taking in the form of a spatial enclosure that draws a boundary separating inside and outside. Emplacement is, quite literally, an act of inclusion and exclusion, which makes room, internally, for the partition of space into different kinds of places which are interconnected as part of a single space, namely, the space a collective calls its own territory, over and against an outside. Thus, radicalizing Schmitt's insight, it is not merely the who and the what of behaviour which joint action orders. Nomos suggests that concrete order is also always a spatial order, hence an order that identifies and apportions a where – a proper place – to specific kinds of participant acts by specific kinds of participating agents. We can take yet a further step, albeit one that Schmitt himself does not take, by noting that collective action also involves an ordering of the time of participant action, not in the sense of calendar time but rather the appropriate time to engage in a certain act with a view to realizing the point of joint action: the when of participant acts.

In short, a concrete order – a nomos in a sense of the term which both builds on and radicalizes Schmitt's interpretation thereof – is the unity of a fourfold manifold that, qua unity, (1) selects the kinds of places, agents, times and acts which are relevant to realizing the point of joint action and (2) differentiates and interconnects the who, what, where and when of joint action into the dimensions of a single order. It is in this sense, I submit, that the notion of collective action sheds light on concrete order as an order.Footnote ³³

The foregoing considerations on the orderliness of concrete order also help us to understand the ways in which law is always a concrete order. To begin with, legal orders are concrete in that they appear to those whose behaviour they regulate in the form of a fourfold unity: the unity of the time, space, agents and content of participant acts. Secondly, legal orders are concrete in that the integration of these four dimensions of order takes place from the practically oriented, first-person perspective of those whose behaviour is regulated. Law appears as a four-dimensional order in which, for example, one finds oneself in a shop (place), as a prospective client (subject), in the course of (time) buying something (content). Only derivatively can a legal order be ‘objectified’, that is, severed from this first-person perspective, with a view to either isolating the ‘meaning’ of legal norms as the object of doctrinal analysis and ‘interpretation’ or establishing from a theoretical perspective under what conditions a manifold of norms can be viewed as a legal unity. Third, a legal order is concrete in that it assigns the appropriate places and times for the appropriate subjects to do the appropriate things. Law is concrete because it provides normative markers for what to do, when and where to do it and by whom, such that we can orient ourselves in each of these dimensions and all of them together. The fourth aspect of concreteness concerns the distinction between legality and illegality. In effect, this distinction is not neutral: the distinction sets up a preferential differentiation whereby legality is preferred to illegality, hence whereby legal order is preferred to legal disorder.

There is yet a further and fundamental feature which determines the concreteness of law as a concrete order, for illegal behaviour does not exhaust the disruption of normative orientation by the participants in authoritative collective action. There is a form of the disruption of legal order whereby behaviour not only appears as legal or illegal but also as calling into question how the collective has drawn the very distinction between legality and illegality. Drawing on Schmitt's vocabulary, we can call this a strong form of abnormality. It betokens an alien or a strange order, that is, another first-person plural perspective of collective action the realization of which interferes with the realization of collective action from the first-person plural perspective of a given group. In other words, strong abnormality marks the irruption of what is alien or strange into what a collective calls its own order, that is, what is deemed to be its own way of organizing the who, what, where and when of authoritative collective action. If the legal is preferred to the illegal, and legal order to disorder, the emergence of the alien reveals a second-level preferential distinction that is constitutive for the first-person plural perspective of authoritative collective action: the own is preferred to the alien, where ‘own’ includes both the legal and the illegal. Whereas the qualification of behaviour as legal or illegal involves the (re)affirmation of a collective as a ‘we,’ abnormality, in its strong manifestation as what is alien or strange, challenges what we are as collective and, more or less radically, that we are a collective.

An example of this strong form of the alien or strange is the events leading up to the Canadian Supreme Court's famous Quebec Secession Reference, and which ended up in a constitutional deadlock between, on the one hand, the Canadian rebuke that the Quebecer secessionists had fallen prey to a performative contradiction by demanding a unilateral right to secession and, on the other, the Quebecer objection that Canadians begged the question when they demanded that Quebec present its claim as a constitutional claim to a right to secession. If, for the Canadians, at stake was the constitutionality or unconstitutionality of a unilateral right to secession (and in that broad sense the legality or illegality of this demand), the Quebecer secessionists rejected altogether the applicability of both terms of this distinction, contesting that they ought to be part of the Canadian collective, not merely what a Canadian collective that included Quebec ought to be about.Footnote ³⁴

I will revisit the distinction between the own and the strange in the closing section of the chapter. It may suffice to note, for the moment, that all the aforementioned goes into the claim that a state is a concrete order and that a legal order reveals itself as such from the first-person plural perspective of a ‘we’ in which authorities mediate and uphold who ought to do what, where and when with a view to realizing the point of collective action. Admittedly, I am going considerably beyond what Schmitt himself has to say about concrete order in my reconstruction thereof. But this reconstruction has the advantage of clearly exposing the key strengths and flaws of his thinking about politics and law.

State and law

This reconstruction of the concept of concrete order offers a good vantage point from which to appraise Schmitt's account of the relation between state and law. To begin with, it shows why Schmitt is right to eschew the move to conceptualize the state in terms of its canonical definition as a political organization characterized by the exercise of a monopoly of power over a population within a given territory. Notice that the point is not so much that this canonical definition is incorrect, as far as it goes; the point Schmitt makes is that this definition presupposes, without clarifying, the basic structure which allows one to explain each of the elements into which that canonical definition can be parsed. Indeed, the notions of territoriality, population and monopoly of power are abstractions which presuppose – without clarifying why a state is a concrete order – a nomos. No less importantly, and this is what I will now turn to consider, this first-person plural characterization of concrete order helps us to understand to what extent the three objections Schmitt addresses to Kelsen's normativism might be justified.

Schmitt's first line of attack hinges on his refusal to follow Kelsen in viewing a legal order as the unity of a manifold of legal norms. We can now see in what sense his complaint is justified. Kelsen's approach abstracts from the first-person perspective, both singular and plural, whence a legal order can at all appear as a unity. If an order is the unity of a manifold, then the problem of legal order cannot be only, or even in the first instance, the problem about the unity of a manifold of norms, as Kelsen and many others take for granted. It is also, and most fundamentally, the practical question about how a legal order manifests itself as a unity with respect to each of the dimensions of behaviour ordered by the law. The conceptualization of legal order as a manifold of legal norms is a theoretical achievement that abstracts from – and hence continues to depend on – the primordially practical interest concerning who ought to do what, where and when with respect to authoritative collective action.Footnote ³⁵ Indeed, the disruption of legal order is not normally greeted with indifference by those whose behaviour it regulates. The disruption of legal order provokes a wide range of emotions, ranging from fear, irritation and anger to joy and relief, depending on the stance taken by interested parties in joint action. Perhaps the fundamental reason for this is that, to a lesser or greater extent, the disruption of order concerns our capacity to orient ourselves in the world, thereby exposing our constitutive vulnerability as beings which are not simply ‘in’ an order but need to take up a relation to an order. In short, legal order and its vicissitudes have an existential significance which is not merely ancillary to law but is rather constitutive for it. Schmitt's appeal to the notion of a concrete order can be seen as reclaiming this existential significance of legal order for a theory of the relation between state and law, an existential significance from which ‘the legal point of view’, as Raz calls it, has abstracted, yet which remains its indispensable presupposition.Footnote ³⁶

Kelsen's reticence about conceptualizing legal order as a concrete order is driven by his rejection of the notion of collective subjects. To revisit an earlier citation, ‘every state is only a legal order’ (emphasis added). There is no political unity that needs to be presupposed as antecedent to the unity of a legal order, or so he avers. The foregoing account of authoritative collective action suggests in what way Schmitt's critique of this position is compelling. In effect, Kelsen's methodological individualism blinds him to the fact that collective action is irreducible to an aggregation or summation of individual acts, even though no collective can exist independently of, nor act other than through, the participant acts of its members. There is a meaningful sense in which acts can be viewed as our acts and a collective as owning an act. Kelsen's identification of law and state is premised on the assumption that all talk of collectives and collective acts amounts to a hypostasis or reification. This assumption is unfounded, even though a reifying reading of collectivity in general, and of states in particular, is of course possible.

In consonance with his defence of collective subjectivity, Schmitt also defends, as we have seen, a dualistic reading of the relation between state and law. Authoritative collective action, as sketched out earlier, reveals in what sense Schmitt is right to postulate a dualistic reading of law and state. In effect, a legal order is a default setting of authoritative collective action. By this I mean that a legal order is a provisional determination of who ought to do what, where and when in light of the point of joint action, such that no state is ever exhausted by any of its legal default settings. Indeed, if the emergence of a collective demands the identification of a point of joint action, which includes some kinds of behaviour as relevant and excludes others as irrelevant, it is also the case that a legal order, qua default setting of authoritative collective action, operates yet a further inclusion and exclusion: it includes a certain reading of the point of joint action while excluding other possibilities that remain within the compass of the collective's own possibilities. A dualistic reading of the relation between state and law simply points, on one level, to the duality between actuality and possibility, that is, to the fact that more is possible for a collective than what it has actualized as its legal order.

Schmitt's dualistic interpretation of the relation between state and law can be taken a step further: to argue that an extant legal order is a default setting of authoritative collective action is to assert that this legal order is deemed to be a representation of a political order or, if you wish, that the unity of a legal order is held to articulate political unity. This means that the validity a legal order demands for itself turns on the claim that law, as posited, gives form (Gestaltung) to – that is, expresses – what is deemed to already bind together a manifold of individuals as participants in the common enterprise of realizing an idée directrice. It is in this sense that we should interpret Schmitt's claim that the unity of a manifold of norms would be unintelligible absent the presupposition of political unity. But it is also only in this sense that Schmitt's claim about the representational character of legal order should be accepted, for it is one thing to claim that political unity must be presupposed and another altogether to claim that a political unity exists independently of the legal order which represents it. Whereas the first claim is part and parcel of a radical interpretation of representation, the second collapses representation into a form of originalism. To argue that political unity must be presupposed is to aver that political unity is perforce a represented unity, that is, a unity to which there is no direct accesss. By implication, political unity is never a given but rather always nothing more than a putative political unity.Footnote ³⁷

Let us now turn to Schmitt's second objection to Kelsenian normativism, namely, its incapacity to view the individuality of a state as a constitutive feature of legal order. The abstractive move whereby a legal order becomes the unity of a manifold of norms goes hand in hand with an objectifying move that brackets the first-person plural perspective whence a legal order can appear as individualized. As Schmitt puts it, normativistic thinking strives, by its very nature, to be ‘impersonal’ and ‘objective’.Footnote ³⁸ Importantly, the critical thrust of Schmitt's objection reaches far beyond Kelsen. In fact, it reveals the blind spot of a wide range of theories which partition the domain of legal theory into the question of ‘identity’ and the question of ‘individuation’.Footnote ³⁹ The former, which is taken to be the core problem of legal theory, concerns the features which identify law as such over and against other kinds of normative order. Their acrimonious debates notwithstanding, the defenders and detractors of the so-called separability thesis share the conviction that the identity question is the central question of legal theory. As a result, the question about individuation is forced to play second fiddle to the question about identity, as individuation is deemed to concern a merely factual and contingent feature of legal orders. Schmitt's objection amounts to a defence of the central significance of individuality and individuation for a theory of state and law: ‘the state is constitution … the constitution is [the state's] concrete life, and its individual existence.’Footnote ⁴⁰

A theory of authoritative collective action offers qualified support to Schmitt's objection against the normativistic move to reduce individuation to a derivative problem, both theoretically and practically. Indeed, to the extent that legal order is primordially a form of collective action, explaining the orderliness of legal order demands accounting for the first-person plural perspective of a ‘we’ in joint action. In turn, this perspective can only emerge by dint of a point of joint action which allows the participants of the collective to identify themselves as a group and to differentiate themselves from other groups. In other words, there is a deeper layer of the question about identity and identification which appears as soon as one relinquishes the abstract and theoretical perspective of the scholar to take up the concrete and practical perspective of the member of a group who seeks orientation as to the who, what, where and when of joint action. At this deeper level, the identity question is the individuation question. First and foremost, identification is the self-identification, individuation the self-individuation, of a group. Indeed, who is the ‘we’ which can be identified as a collective act's agent? Well, the group of individuals who refer to themselves as the group committed to acting in certain ways in certain kinds of places and times with a view to realizing the point of their joint action and who, by identifying themselves, can differentiate themselves from other groups.

A theory of authoritative collective action also supports the corollary which attaches to Schmitt's defence of the central theoretical and practical significance of individuation, namely, the meaning of a constitutional crisis. Indeed, what is at stake in such a crisis is the continuation of authoritative collective action. This means, concretely, that what is threatened is its structure as such and in its entirety: collective action and authority. On the one hand, a constitutional crisis imperils the capacity of a manifold of individuals to individuate themselves as a collective, in the sense both that they are a collective and what they are as a collective. On the other hand, a constitutional crisis announces itself when the ultimate authority to establish which acts count as the collective's own acts is called into question. These two aspects of a constitutional crisis are but the two faces of legal ordering as the on-going political process of collective self-individuation or self-identification.

These considerations on identification and individuation usher in Schmitt's third and decisive censure of normativism, namely, the latter's attempt to relegate the problem of normality to the domain of the factual proper to legal sociology while conceptualizing validity in a way that grounds a legal order in a norm – the basic norm. Schmitt counters that norms follow normality: ‘each order, also a legal order, is bound to normal concepts that aren't derived from general norms but rather which bring out these norms from their own order and bring these forth for the sake of their own order.’Footnote ⁴¹ Normal forms of institutional interaction ground legal orders, which means that a legal order is valid if it articulates and secures an institution in its normal state, or so he avers. Building on an earlier insight, a constitutional crisis, in Schmitt's view, amounts to a form of abnormality which challenges the capacity of a collective to continue identifying itself as the self-same collective and to distinguish itself from other groups.

In what way might the concept of concrete order enjoined by a theory of authoritative collective action support Schmitt's strong claim about the foundational role of normality vis-à-vis normativity? The crux of the matter is a distinction that needs to be drawn between pre-reflexive and reflexive forms of authoritative collective action. Indeed, in the ordinary course of joint action, legal order as such remains unobtrusive to participant agents. When buying victuals in a shop, I simply select the products I need, walk to the check-out point and so on without interpreting what I am doing as participating in a contract of sale. The hold of law qua normative order is at its strongest when it remains unnoticed as an order that opens up and closes down normative possibilities by differentiating and interconnecting four dimensions of behaviour. More pointedly, while the participants understand what it is they ought to do, they do not immediately describe it in specifically legal terms, even if, ex post, their behaviour can be shown to be legal (or illegal) and they (and authorities) can qualify it as such. This is important because it suggests that legal orders draw on and come to stand out against the background of a more or less anonymous social order, an order in which ‘is’ and ‘ought’ run over into each other. This is the pre-reflexive order of normal and habitual behaviour in which one acts more or less blindly and as a matter of course: everything is at it should be, and everything should be as it is. This domain of the normal and habitual is pre-reflexive because it does not require participant agents to take a stance with respect to whether they are a collective and what identifies them as a collective, that is, with respect to who ought to do what, where and when with a view to realizing the point of joint action. The distinction between the normal and the normative only manifests when the ordinary course of joint action is disrupted, thereby engendering a reflexive attitude towards joint action: what ought our joint action to be about? Only when social order is disrupted do ‘is’ and ‘ought’ fall apart and do a legal order and its claim to validity appear as standing in contrast to the factual. Importantly, the emergent separation between ‘is’ and ‘ought’ engenders a reflexive attitude towards joint action and to which law setting is a response: what ought our joint action to be about? The reflexive structure of this attitude, and of the possible responses to which it gives rise, brings into play what Paul Ricœur calls ipse identity, which is irreducible to the idem identity presupposed in what Kelsen calls the ‘self-creation’ of a legal order.Footnote ⁴²

Thus, Schmitt's critique of normativism can be taken to mean that this pre-reflexive domain of joint action is not merely a sociological precondition of a state but rather an integral part of a state qua state. In short, the pre-reflexive domain of joint action, as summarized in the notion of normality, lends a certain credence to Schmitt's strong thesis that a state is a constitution and only derivatively has a legal constitution.

Normalization and collective freedom

In the foregoing, I have sought to provide as charitable a reading as I can of Schmitt, a reading which defends his proposal to view law as concrete order, all the while addressing the crucial questions he leaves unanswered. But the time is now ripe to expose the serious – arguably devastating – consequences of this reading for Schmitt's interpretation of the relation between law, state and freedom, for, as we shall now see, a first-person plural reconstruction and defence of the relation between normality and normativity comes at a heavy price for Schmitt.

To begin with, it becomes clear that Schmitt's move to invert the relation of dependency between ‘is’ and ‘ought’ such that the latter is derived from the former is no less problematic than the opposite relation of dependency, which he views as characteristic of normativism. In effect, what is characteristic of the pre-reflexive domain of the normal is their intertwinement, such that everything is at it should be, and everything should be as it is. Inverting the relation of dependency between ‘is’ and ‘ought’, as Schmitt does, is to hold on to their disjunction as original or primordial. In contrast to both normativism and Schmitt's interpretation of concrete-order thinking, the pre-reflexive domain of authoritative collective action reveals this disjunction as derivative, in a specific sense of the expression: the disjunction appears in the event of a disruption of concrete order. In other words, the disjunction between ‘is’ and ‘ought’ is abstractive rather than concrete. Authoritative collective action bespeaks, in its pre-reflexive mode, the indifferentiation of ‘is’ and ‘ought’.Footnote ⁴³

This objection seems to leave intact the main thrust of Schmitt's critique of normativism, namely, the thesis that validity ultimately is grounded in efficacy and that the norm simply follows normality. But the model of authoritative collective action also challenges this thesis in a decisive way. Notice that Schmitt's thesis effectively amounts to an inversion of the correspondence relation he attributes to normativism, for which order exists to the extent that ‘a concrete situation corresponds to general norms, in relation to which it is measured’.Footnote ⁴⁴ It is the other way around, or so argues Schmitt: legal norms are valid to the extent that they correspond to the inner measure of an institution. Thus, although Schmitt describes normativism as ‘objectivist’, concrete-order thinking is no less objectivist in its purport: the sole difference consists in an inversion of the measure of objectivity. As concerns the state, this means that constitutional laws are valid insofar as they articulate and secure a constitution in its fundamental sense, that is, ‘the concrete manner of existence that is given of itself with every existing political unity’.Footnote ⁴⁵ That norms follow normality means that legal order is ultimately about the ‘restoration (Wiederherstellung) … of order’,Footnote ⁴⁶ an order that has been disturbed by ‘abnormal’ behaviour. This impinges directly on the notion of a constitutional crisis: to the extent that such a crisis marks the irruption of abnormality into the domain of (constitutional) normality, the task of the guardian of the constitution is to restore normality by way of exceptional measures, where ‘restore’ means to return to the original condition of normality – the Daseinsweise of the collective – as the ground of the validity of the legal constitution.

This line of reasoning amounts to what I earlier dubbed an originalist reading of representation, that is, the reifying assumption that a legal order should merely replicate a pre-given political unity which is independent of its legal representation. Yet to acknowledge that political unity is always a represented unity is to recognize that there is no social order that is simply given prior to and independent of its legal regulation and which provides the latter with an internal measure to which the legal order can correspond (or not) and hence be valid (or invalid). In other words, there is no pristine domain of the normal, unmediated by law, and which the norm simply follows. Normality, including constitutional normality, is always to a greater or lesser extent the outcome of a process of (constitutional) normalization. This means, from the perspective of authoritative collective action, that the social domain of normal and habitual behaviour is never only pre-reflexive, such that norms would merely ‘follow’ normality. It is also always post-reflexive, in the sense of a normality that has come about and become consolidated as a result of the reiterated qualification and enforcement of legal behaviour. Normality is always already ‘contaminated’ by a normativity that has been imposed on it. This is most acutely visible in the case of a constitutional crisis, in which the measures taken by the ‘guardian of the constitution’ bring about a state of normality in the very act of claiming that these measures merely restore normality. In short, it is thoroughly reductive to state, as Schmitt does, that normativity simply follows normality; it is also the case that normality follows normativity.Footnote ⁴⁷ There is no original normality which lends an independent measure to normativity, no pure ‘social type’ which could provide the inner measure to which legal norms must correspond if they are to be valid.Footnote ⁴⁸

Therefore, when one fully works out Schmitt's proposal to view law as concrete order, it turns out that this proposal endorses a key – perhaps the key – idea of normativism. In effect, the general thesis defended by Gustav Radbruch and Hans Kelsen ultimately carries the day against Schmitt: law is not valid because it is effective but rather when it is effective.Footnote ⁴⁹ In my reading of law as concrete order, normativity is irreducible to normality because the practical question confronting legal orders – what ought our joint action to be about? – becomes urgent because there is no ‘inner measure’ in the order of things that could establish whether we are a collective and what we are as a collective.

How does this insight pan out in terms of the concept of collective freedom? As noted at the outset, Schmitt defends the notion of collective freedom as collective self-rule, where what is at stake therein is the capacity to determine what is ‘our [own] kind and form of existence’. Constitution making, as the expression of collective freedom, amounts, in his reading of the relation between law and state, to an act whereby constitutional laws are enacted which are the expression of what we already are as a collective. This is the constitutional implication of the tenet that normativity must follow normality and hence that ‘ought’ follows ‘is’. At issue here, as noted, is an inversion of the relation of objectivity which Schmitt imputes to normativism: if the latter would have facts correspond to norms, he would have norms correspond to facts. Now, insomuch as a legal order represents a pre-given political unity (the state as a constitution), the enactment of a constitutional law is the manifestation of collective freedom; the act is our own act, and the enacted law is our own constitutional law. In this reading of collective freedom, the ‘self’ of collective self-rule speaks to identity in terms of what Ricœur calls idem identity: the people as ruled (through law) are the same as (corresponds or identical to) the people as the ruler. The implication of this account is that, in the face of a constitutional crisis, collective freedom resides in the capacity to preserve what is originally our own Daseinsweise over and against the alien or strange and hence the normal and familiar over and against the abnormal. It is in this way, then, that Schmitt clinches his theory about the internal relation between state, law and freedom.

What are we to make of this account of collective freedom and its relation to state and law? With Schmitt, I would defend the thesis that, politically speaking, collective self-rule entails the first-person plural perspective of a collective subject, that is, of a manifold of individuals who view themselves as the group which legislates in its own interest. With Schmitt, I would defend the thesis that collective self-rule entails that the collective has a mode of existence that is not simply the aggregation of the individuals that compose it. With Schmitt, I would defend the view that collective self-determination amounts to self-individuation, that is, to acts which identify what is to count as ‘our own’ mode of existence and what is to be excluded therefrom as alien or strange. All of this is entailed, I think, by the interpretation of law as a concrete order.

But the implications of this interpretation for the concept of collective freedom do not stop here. If one acknowledges that normality is the outcome of a process of normalization, then the assumptions undergirding Schmitt's concept of collective freedom turn out to be untenable on at least two decisive counts. Against Schmitt, I argue that political unity is perforce a represented unity. This means that representation is never merely the reproduction of an original unity but also always the production of unity. Against Schmitt, I would argue that there is no pre-given and directly accessible political unity that could provide the ‘inner measure’ for the validity of law, no pre-given and directly accessible boundaries that separate an original mode of existence which is our own from what is strange or alien to it.

It is under these conditions that collective freedom can appear as a response to the practical problem confronting authoritative collective action: what ought our joint action to be about? In other words, who ought to do what, where and when? Freedom is a response to a practical problem because, contra Schmitt, there is no inner measure, no original unity that could provide guidance on how to authoritatively draw the boundaries between the own and the strange.

Here is where liberal theories of democracy come into the picture. When there is no prior ground for the validity of law, when normativity does not simply follow normality, when political unity is not given in advance of legal order, then the only way to hold onto an objective grounding for the binding character of a legal order is to locate that objective grounding in the consent of the ruled. Legislation can be viewed as an act of collective freedom, on a liberal reading of authoritative collective action, if and only if all those who are participant agents can grant their consent to the rules that establish what our joint action ought to be about. Only then can participant agents understand themselves as being not only the object of rule but also part of a collective subject that rules over itself. Only then is an act properly attributable to a collective subject as our own act; only then can a constitution manifest as our constitution; only then has collective freedom become a reality and not merely an aspiration. Collective self-rule, in a liberal reading, becomes the telos of an historical process oriented to realizing, at least on principle, an every greater inclusiveness, such that what had been initially excluded as abnormal or alien is progressively integrated into the collective subject. Democratic ‘solidarity with the other as one of us refers to the flexible “we” of a community that resists all substantial determinations and extends its permeable boundaries ever further.’Footnote ⁵⁰

Accordingly, the bitter feud between Schmitt and liberal theories of democracy takes place on the ground of a more fundamental alliance between the two positions: both interpret the relation between state, law and freedom in terms of a politics of law making in which difference, in the strong sense of the strange or alien, is subordinated to identity. If, for Schmitt, collective self-rule amounts to ensuring that legislation preserves what is originally our own against the alien or strange, for liberal theories of democracy, the alien is only provisionally alien insofar as the task of collective self-rule is ‘to make the strange our own’.Footnote ⁵¹ In both cases, democracy is the celebration of the unity of the self as the ground of the normativity of legal order; in both cases, collective self-rule speaks to the identity between those who are ruled and those who rule.

All of this shows that it is possible to offer a liberal defence of the thesis that concrete order provides the key to the relation between state, law and freedom. I could have concluded this chapter by embracing this defence, but I will not. To recognize that normality is the outcome of a process of normalization of the abnormal is to acknowledge that collective self-rule never only integrates the strange into a legal order at a higher level of generality. In the process of responding to the strange, collective self-rule also always neutralizes the strange, levelling down the extraordinary to a variation of the ordinary. Every collective confronts, in one way or another, normative claims that it cannot integrate in their own terms into its legal order because those normative claims are in contradiction with that collective's normative point. Political difference is never only what-is-not-yet-our-own. It is for this reason that I have eschewed linking a theory of authoritative collective action, and of law as concrete order, to liberal theories of democracy. My aim is instead to preserve the ambiguity of collective self-rule as integration/neutralization, an ambiguity which is neatly captured by the claim that collective self-rule normalizes the abnormal. If such is the case, then collective freedom cannot only mean collective self-rule as the progressive integration of the strange into our own collective but also always as a form of self-restraint in the face of normative challenges which definitively elude the practical question to which collective self-rule is a response: what ought our joint action to be about?