Syntax as Terminology in Schmitt (3)

As I have previously shown (in Parts 1 and 2), translators of non-fiction have no artistic license to take liberties with the text, no matter how innocent these might seem. In this post, I hope to demonstrate how even the subtlest alterations of grammar can lead to unfortunate distortions.

In the second chapter of Political Theology, “Sovereignty as the Problem of Legal Form and Decision,” Schmitt mainly deals with the general problem of how legal order is brought about and how every general legal norm is implemented and applied to a particular case. The central topic of discussion is the relation between the normative and the factual in the realm of law and the distinctive nature of the legal form. The primary target of Schmitt’s criticism is revealed to be the attempt of liberal theories of state to derive a positive legal order from a purely formal hierarchy of rules and downplay the roles of political power and decision (and their irreducible subjectivity) in producing and enforcing any actual order. He writes:

«Es ist aber auch möglich, daß sich das Bestreben zeigt, die juristische Behandlung von dem Wechsel der politischen Verhältnisse unabhängig zu machen und gerade in einer konsequent formalen Behandlungsweise die wissenschaftliche Objektivität zu gewinnen».

This basically descriptive statement sets the stage for the argument, as Schmitt observes a tendency in the jurisprudence of his time to abstract from the realm of politics in vain hopes to achieve scientific objectivity, not unlike the one enjoyed by natural sciences. Such a theory believes its subject to be a closed, logically consistent system of regulations with each and every norm conclusively derived from the single first principle. Thereby, a radical division between the pure normative jurisprudence of “ought” and the empirical sociology of “is” is specifically established to avoid the most crucial questions of 1) how legal order is brought about and 2) who has the authority to implement these regulations. According to Schmitt, the kind of formal jurisprudence which fails to address the concrete matter of the factual is, at the end of the day, mere sophistry and can never account for the normative character of positive law. It just attempts to achieve scientific objectivity but never amounts to it due to constantly losing its very subject from view. The English translator, however, seems to disagree:

«But it is also possible for an effort to emerge that separates juristic treatment from changes in political conditions and achieves scientific objectivity precisely by a firm formal method of treatment.»

According to this rendering of the passage, the striving towards empty formal objectivity (namely, the alleged independence of law from the contingencies of history and the human factor) is not only undeniably present but apparently successful. By substituting Present Simple for the infinitive locution of the original, the translator comes in direct contradiction with Schmitt’s own concept of legal form (which gives rise to the objective validity of both the legal order and the science which attempts to investigate it). According to the author, the theories in question imagine objectivity to entail the rejection of the subjective aspect of law-giving and treat the residue of the subject in the dominant theories of sovereignty as redundant. On the other hand, he believes that the kind of objectivity and normativity enjoyed by the legal system can only be accounted for from a subjective point of view: they are ultimately based on a decision, which is never entirely defined and determined by the content of the rule. Therefore, if jurisprudence is to be taken seriously as an objective science (Wissenschaft), it must keep this in mind and give up on its formalist methodology and the picture of the positive legal order as a system of abstract rules.

Victor Chorny