Dictatorship by Carl Schmitt

Author:Carl Schmitt
Language: eng
Format: epub, azw3, pdf
Publisher: Wiley
Published: 2014-10-15T16:00:00+00:00

6

Dictatorship in Contemporary Law and Order

The State of Siege

While the commissars of the National Convention were designed to eliminate the current organisation of the state, a number of institutions were established at the same time with the purpose of protecting the current order against a coup d’état. In the first instance, as a legal means to maintain or reestablish the legal order and security, what was practised in the beginning in pre-revolutionary Europe was the provost’s jurisdiction [Prevotalgerichtsbarkeit], which was active throughout the impressive rebellions related to the harvest in the eighteenth century.1 It was ultimately executed by the militaryinspired gendarmerie – the prévôts des maréchaux [marshal’s provosts] – in its districts, in so-called cas prévôtaux [provost’s cases]: robbery, looting, uproar and other kinds of disruption to public safety. The fact that the fight against domestic unrest was initially under the jurisdiction and commissarial mandate of an extraordinary juridical activity – one that was bound up with reduction to a summary procedure – ties in with the development outlined so far, and also with the idea that exercising state supremacy is tantamount with exercising jurisdiction. This is most evident for the strictly constitutional view of the state – that is, the English view, in which the state is limited to its judicial functions. But, because the provost’s jurisdiction rested on a specific commissarial empowerment coming from the king, in England, where a royal commission could not justify an intrusion in the liberty of the individual, such a statement for the extremely summary process against the rebels is impossible to find. Under Charles I, the royal commissars received full powers to have both soldiers and civilians sentenced to death, outside of ordinary jurisdiction. Even the Long Parliament employed the practice of extraordinary commissions. The Bill of Rights put an end to this. In a riot, the army could intervene at the request of civil administration. The exordium to the Mutiny Acts, under Queen Anne and King George I, was phrased in such a way that the prerogative to declare martial law remained with the Crown and its usual authorities, but only in times of war and outside of Great Britain, for example in Ireland. Since James II, the articles of war allowed the destruction of rebels’ private property and gave the commander an unlimited power to pass verdicts of life and death [Leib und Leben] in foreign countries; but this power was limited in the homeland.2 But the true legal problem was to justify, in the eyes of the law, the direct violation of life and death and property that was inevitable when an army intervened, regardless of whether that army belonged to the rebels themselves or to a neutral third party. The justification given during the uproars in London in 1780, and frequently repeated, was that civil persons who were found armed were treated as if they had subjected themselves to martial law (but not to the military court). Of course this kind of justice is, ‘in reality, just a battle order [Gefechtsbefehl]’.

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