1The interest of Carl Schmitt for Montesquieu’s work is not merely historical or theoretical, but polemical. His most important references to Montesquieu – which are to be found in (Die Diktatur) and in his (Verfassungslehre), Schmitt’s other works containing hardly a single mention of Montesquieu worthy of note – are indeed inscribed in the framework of a theoretical struggle against liberalism, or a certain form of liberalism. And what better ally in that struggle than the author of The Spirit of Law, which liberalism claims as one of its founding fathers? What Schmitt wants to do is point out tensions, not to say contradictions, within liberalism itself, so as to show that in the form it took on in the nineteenth century, particularly in England, liberalism strayed not only from its origins, but also from the political, in the Schmittian sense of the word. What Schmitt meant by the political was indeed the will to distinguish between friend and foe, which presupposes a world vision that does not reduce all conflicts to those which can find a solution in the framework of the existing norms, but allows those that make it necessary to suspend those norms temporarily, a state of exception. The enemy is he who threatens the form of existence that those norms are supposed to protect, and it is for the sovereign to decide when a conservative exception to those norms is necessary. When he attests a gift in Montesquieu for insight into state theory (staatstheoretische Klugheit: Constitutional Theory, p. 393), he intends to imply that the Bordeaux magistrate had a sense of the state and its imperatives that would disappear even among those who would appeal to him in putting the legal state into place. Guided by this polemical reading, Schmitt concentrates on a few chosen passages from Montesquieu.
2In Dictatorship, published in 1921, Schmitt retraces the history of the notion of dictatorship, which, he asserts, is a central concept in any theory of the state and the constitution (Die Diktatur, p. xiii). A distinction must be made between a commissarial dictatorship, which serves the preservation of the established order, and sovereign dictatorship, the purpose of which is the installation of a new political order. The French Revolution marks the passage from one to the other; but they have in common the separation of juridical norms from the norms presupposed for the application of those norms: dictatorship suspends the laws in order to (re)create a “normal” situation, in other words one permitting the application of the laws. The notion of dictatorship thus refers to the notion of a state of exception, a state which dictatorial power must do away with. That power is bound only by the realization of the end for which it was established and is thus not bound by legal norms.
3To Schmitt, the only dictatorship found in Montesquieu is the commissarial kind (Die Diktatur, p. 103). Thus when he speaks of laws relative to the nature of aristocracy. Normally, no extraordinary power ought to be conferred on an individual; but Montesquieu mentions an “exception to that rule” and gives as examples Rome and Venice, which provided for “awesome magistracies” which should return “the state to freedom” (EL, II, 3): the function of these is not to install a new order, but the preserve the old order. And so with the second case addressed by Schmitt in The Spirit of Law: when he analyses the English Constitution, Montesquieu envisages the day when the state is placed in peril. Then “the only means consistent with reason” would be for the legislative power to “allow the executive power to arrest citizens who were suspect” (“permettre à la puissance exécutrice de faire arrêter les citoyens suspects”, EL, XI, 6). But such permission should only be allowed “for a short and limited time”, and the suspects arrested should lose their freedom only “for a time” (ibid.). A third example mentioned by Schmitt is that of bills of attainder, those laws that are passed applying to individual cases, whereas the law is conceived of as a general norm (EL, XII, 19). The important thing for Schmitt is not that Montesquieu mentions these examples, but that he approves of them, for that distinguishes him from the liberals Schmitt attacks, and for whom law has become a sort of fetish that must always be respected. In contrast to “doctrinary rationalism” (Die Diktatur, p. 106), Montesquieu considers the legal form as a mere instrument, important to be sure, but one which one can cease to utilize if it fails to fulfill its function. He does not recognize “legal despotism” (Die Diktatur, p. 107, in French [despotisme légal] in the text), as Schmitt diagnoses it in the French rationalism of the eighteenth century. In this context Schmitt identifies the influence of Malebranche’s thought on Montesquieu, as well as on Rousseau later. From Malebranche, Schmitt takes above all the occasionalism that affirms the necessity of occasional, and thus specific, causes, which allow the general laws to deploy. Thus the general law does not act on its own, which prevents a “legal despotism”. Elsewhere Schmitt suggests a parallel between the balance of passions in Malebranche and the balance of powers in Montesquieu (Die Diktatur, p. 105-106, note 23). In Schmitt’s eyes, the state as Montesquieu conceives it is thus not the legislative state (Gesetzgebungsstaat) that is at issue in Legality and Legitimacy, for which the legal form prevails over every other aspect.
4For the guarantee of civil liberty, the intermediary powers are more important than the law (Die Diktatur, p. 106). These are the powers, and not an abstract law, that are the true guardians of the constitution. To change the balance of these powers is to open the door to change at the level of government type. Situations of exception constitute privileged moments for making the pendulum sway in the direction of the executive. Schmitt credits Montesquieu with having perceived “the general significance of extraordinary commissioners for the evolution of the republic towards Caesarism” (Die Diktatur, p. 104). He goes on: “It can perhaps be understood from a socio-historical standpoint, but not on the basis of the content of his statements, how one could have found an affinity with the spirit of the Social Contract in a man who had such an historical understanding of the genesis of the modern state.” The modern state did not arise from a contract among equal individuals, but was instigated in reaction to states of exception. An executive power that at first pretended merely to restore the old order took advantage of the extraordinary powers conferred on it to establish a new order or simply to maintain itself.
5 Constitutional Theory, published in 1928, makes a distinction between two conceptions of constitution and retraces the development of the modern conception. According to this notion, the end of a constitution is not in the first instance the state’s power or glory, following the division made by Montesquieu, but freedom (liberté), the protection of the citizen against the abuse of the powers of the state (Constitutional Theory, p. 90). Here Schmitt opposes a statist conception to an individualist conception of the constitution, the former seeing in it the expression of a public ethos placing the state in the center and aiming to subordinate individual inclinations that come to light in civil society, the latter considering it as an instrument that makes it possible to control state power and attempts to guarantee to all individuals a sphere beyond the reach of the interventions of the political power. Schmitt finds this division or opposition between two constitutional ends in Book XI, chapters 5 and 7, of The Spirit of Law. Referring to Montesquieu – but knowingly foreshortening the sentence – Schmitt writes: “A few constitutions have the glory of the state for their direct object and purpose, others the political freedom of the state citizen (Constitutional Theory, p. 90). In The Spirit of Law, the English nation alone is presented as making of political freedom the direct object of its constitution, the glory (of the state and the prince) being presented as the end of monarchical constitutions (EL, XI, 5). If Montesquieu opposes the “monarchies with which we are familiar” (“monarchies que nous connaissons”, XI, 7) to the English monarchy (XI, 6) – but is England truly a monarchy? – by affirming that their direct object is not freedom but “the glory of the citizens, the state, and the prince” (“la gloire des citoyens, de l’État, et du prince”), he pursues by affirming that “from this glory there results a spirit of freedom (“de cette gloire, il résulte un esprit de liberté”), the effects of which for happiness are comparable to those produced by a constitution directly designed for freedom. Even if these states do not recognize the distribution of powers proper to England, they nevertheless have a particular distribution that brings them close to political freedom. This Schmitt does not mention, notably when he asserts that Montesquieu, differing in this from the liberal thinkers of the following centuries, still seems to accord the same value to glory and to freedom as ends of the state (Constitutional Theory, p. 90). Reading Montesquieu carefully, nevertheless, one quickly notices that the pursuit of glory has no value for him unless it leads to political freedom. Montesquieu does not hesitate between two ends, but at most between two paths, direct and indirect, for attaining the sole end of political freedom. By presenting a foreshortened reading of Montesquieu, Schmitt hopes to show that within the liberal camp itself, even within a single liberal author, there exist anti-individualist tendencies, in other words tendencies that do not make of the security of the individual the sole or supreme value.
6In his Constitutional Theory, Schmitt accords an important role to the notion of homogeneity, and he cites Montesquieu’s statements concerning that of states constituted as a federation (Constitutional Theory, p. 393). In Montesquieu, this homogeneity relates to the form of government: a durable federative republic is possible only among republics; but Schmitt seeks a homogeneity more fundamental than that of governments. Despite this difference, it is important to Schmitt to show that Montesquieu the great liberal thinker ascribed great importance to a value which the individualist liberalism of the nineteenth and twentieth centuries rejected.
7It is thus important to Schmitt to show that Montesquieu is still, in certain respects, a thinker of the sovereign state and of the political, and that it is consequently false to make of him a representative of a normativist and individualist liberalism.
Carl Schmitt, Die Diktatur: von den Anfängen des modernen Souveränitätsgedankens bis zum proletarischen Klassenkampf , Berlin: Duncker and Humblot, 1994 (6th ed.).
Carl Schmitt, Verfassungslehre , Berlin: Duncker and Humblot, 1993 (8th ed.). English edition and translation by Jeffrey Seitzer: Constitutional Theory, Durham: Duke University Press, 2008.
Carl Schmitt, Legalität und Legitimität , Berlin: Duncker and Humblot, 1998 (6th edition). English translation by Jeffrey Seitzer: Legality and Legitimacy, Durham: Duke University Press, 2004.