Syntax as Terminology in Schmitt (4)

Another notable instance of creative liberty on the translator’s part can be spotted just a few lines down from the previous example, but this time the logical inconsistency of the translation is immediately obvious. In this passage, Schmitt illustrates the malleability of the standard concept of sovereignty with a prominent case in the evolution of the German theory of the state. His point is to demonstrate how the empty notion of the highest power does not by itself provide sufficient resources for constructing a full-blooded theory. Rather than unfolding according to its own inner logic, the development of this concept has always been at the mercy of historical contingency and subject to abuse by those in power. It is crucial to quote the entire passage:

«Im neu gegründeten Deutschen Reich ergibt sich nach 1871 die Notwendigkeit, für die Abgrenzung der Hoheitssphäre der Gliedstaaten gegenüber dem Bundesstaate ein Prinzip aufzustellen, und aus diesem Interesse findet die deutsche Staatslehre eine Distinktion zwischen Souveränitäts- und Staatsbegriff, mit deren Hilfe sie den Einzelstaaten den Charakter der Staatlichkeit retten kann, ohne ihnen Souveränität zusprechen zu müssen».

The newly arisen political situation (namely, the unification of German states in a single empire) presented the theorists of state with a fresh challenge to justify the status of the member-states without actually attributing sovereignty to them, which could only be brought about by separating the concepts of sovereignty and the state. Fortunately, the vague notion of the highest power they had at their disposal could perfectly accommodate such an arbitrary (and problematic) conceptual division. Schmitt considers this particular political interest to be the single motive and basis for the modification, as it follows from no previously known juridical principle. Namely, it does not logically follow from the standard definition of sovereignty that it is (or is not) inherently bound to the idea of the state, so interpreting it either way is a matter of pol tics rather than pure theory. The separation of the two concepts was itself meant to be the juridic l principle that retroactively justified the unification of separate states into a single federal entity. This is why it comes as a great surprise when the English translation miraculously turns this immediate political interest to rationalize the federal form of government into yet another principle:

«In the newly founded German Reich it became necessary after 1871 to advance a principle for distinguishing the authority of member states from the federal state. On the basis of this principle, the German theory of the state distinguishes between the concept of sovereignty and the concept of the state».

In this example, the translation basically introduces a reversed order of justification. In the original, the principle of distinguishing the two kinds of authority is based on the separation of the notions of sovereignty and the state, which is itself immediately motivated (which is to say, caused) by the relevant political situation. However, the translation makes it seem as if the principle that recognizes the authority of the member states was there to ground the specific concept of sovereignty in question beforehand rationally. However, it is clear that the consistency of the argument depends on the fact that no such mediation was needed, and the principle was cooked up on the spot. Therefore, it also strengthens Schmitt’s overall thesis that legal theory does not precede practice and the totality of the positive legal order cannot and does not logically follow from a set of basic principles but is grounded by the bare force of political decision.

Victor Chorny