What place, if any, does retributive justice have in criminal adjudication?
theomnipotent God is an omnipotent lawgiver. Or, it can also be arguedthat for Schmitt, theology itself is political: that theology is thebasis for politics and the two meet at the point of sovereignty. Thisessay will leave aside for the moment the secondary aspect of thisquote, which is that there is also a historical development that makesmodern theories of the state theological concepts: it is enough to notethat in either theory, the democratic notion of the people at thecentre of sovereignty misunderstand the nature of the sovereign. For Schmitt, the sovereign is he who creates law. However, in thiscreation, the sovereign has an interesting ontological characteristic.For (Schmitt: 1963:36) “although he stands outside the normally validlegal system, he nevertheless belongs to it, for it is he who mustdecide whether the constitution needs to be suspended in its entirety.”Thus, for Schmitt the sovereign is included in the legal order only atthe point of its own suspension. This can be understood as theexception. For instance, in a state of exception, the law is suspendedby an act of law itself: in that act, the exceptional nature of thedecision of sovereignty becomes clear, and one can see that law iscreated by an exceptional decision that can be recalled at any time inthe state of exception. This point is the original point that lies atthe foundation of law, and thus, is the foundation for Schmitt conceptof the political. For Schmitt, the political is preceded in a certainsense by the state. As Agamben (1995:26) explains: The exception does not subtract itself from the rule; rather, therule, suspending itself, gives rise to the exception and, maintainingitself in relation to the exception, first constitutes itself as a rule. . . The sovereign decision of the exception is the originaryjuridico-political structure (struttura) on the basis of which what isincluded in the juridical order and what is excluded from it acquiretheir meaning Is this anarchy? For if it was, then Schmitt would be arguing forreplacing the Weimar republic with a state no better than the state ofnature. This is not the case. For Schmitt (1963:12): What characterizes an exception is principally unlimited authority,which means the suspension of the entire existing order… Because theexception is different from anarchy and chaos, order in the juristicsense still prevails, even if it is not of the ordinary kind. Schmitt is keen to maintain a constant relation between the state ofexception and the state of law. It is still the law that suspendsitself through the figure of the sovereign. For Schmitt, it is thisdecision that is at the heart of sovereignty. Rather than sovereigntybeing a matter for popular will, Schmitt understands that underlyingthe founding of any law is a moment where law must be suspended. Thismoment returns in the state of exception. This state of exceptionguarantees the power of the sovereign. It also reveals that sovereigntyis pure immediacy, rather than representation (which is the makingpresent of something which is absent). As Schmitt notes of thesovereign decision (1985b: 31): “the decision becomes instantlyindependent of argumentative substantiation and received autonomousvalue.” This argument, Schmitt claims, understands the true power oflaw in a way rationalist jurisprudence fails to do. We see that Schmitt argument about the decision versus the rule is nota new concept in his thought in the 1920’s. The similarity betweenthese statements and those in Law and Judgement indicate this projecthad been there from the very start. In the Political Theology he givesa good definition of his project: (ibid: 22): “precisely a philosophyof concrete life must not withdraw from the exception and the extremecase, but must be interested in it to the highest degree.” Through thisproject Schmitt attempts to break out of the choice between nihilisticindividualism (the bureaucratic state) and community based politics(communism, as well as regimes based on tradition) by emphasising thesingularity of sovereignty. V Solutions: Sovereign Violence Schmitt now has a critique of the contemporary world, and a desiredworld he would like to go to. He finds his means in violence. Throughviolence Schmitt argues it is possible to break with rule based systemsof sovereignty. As he notes (1985b: 12): “the norm is destroyed by theexceptio>GET ANSWER