Carl Schmitt’s theory of emergency powers has garnered substantial attention in the aftermath of terrorist attacks on the US, UK, and Spain. Against those who underscore apparent discontinuities in Schmitt’s view of emergency government, or see him as advocating law-based and/or a constitutional model of emergency government, this chapter revisits three key historical and intellectual contexts—the First World War, the Weimar debate about Article 48, and the disintegration of Weimar democracy after 1930— to offer an alternative interpretation. The radical anti-legal (...) character of Schmitt’s position, along with its underlying continuities, is emphasized. Three recent post 9/11 employments of Schmitt’s ideas about emergency power are then examined. Each is found inadequate, in part because each accepts too much of the underlying logic of Schmitt’s theory and thus becomes vulnerable to its normative and political frailties. (shrink)

This chapter demystifies Carl Schmitt by interpreting his main insights through the lens of modern social sciences,. There is a large literature in political science on the political foundations of democracy, constitutionalism, and the rule of law. This literature emphasizes that legal rules, by themselves, cannot create a political equilibrium, which always depends on the expectation of political actors that other actors will contribute to preserving the constitutional regime rather than subverting it. This insight allows us to interpret Schmitt’s distinction (...) between legality and legitimacy more concretely than in extant work. There is also a large literature in law and economics on ex ante rules versus ex post standards. Schmitt’s theory of the exception can be understood as an argument that governance through ex post standards, rather than ex ante rules, is inevitable and even desirable where political, economic, or military conditions change rapidly. (shrink)