This	is	the	accepted	version	of	the	following	book	chapter: Jacques,	J.	(2016),	Law,	Decision,	Necessity:	Shifting	the Burden	of	Responsibility,	in	The	Contemporary	Relevance	of Carl	Schmitt:	Law,	Politics,	Theology,	Abingdon,	Oxon: Routledge:	107-119,	which	is	available	at http://www.routledge.com/9781138822931.	This	chapter may	be	used	for	non-commercial	purposes	in	accordance	the publisher's	terms	and	conditions. 2 Law,	Decision,	Necessity:	Shifting	the	Burden	of	Responsibility Johanna	Jacques Abstract:	What	does	it	mean	to	act	politically?	This	paper	contributes	an	answer	to this	question	by	looking	at	the	role	that	necessity	plays	in	the	political	theory	of	Carl Schmitt.	It	argues	that	necessity,	whether	in	the	form	of	existential	danger	or absolute	values,	does	not	affect	the	sovereign	decision,	which	must	be	free	from normative	determinations	if	it	is	to	be	a	decision	in	Schmitt's	sense	at	all.	The	paper then	provides	a	reading	of	Schmitt	in	line	with	Weber's	ethics	of	responsibility, according	to	which	the	political	actor	decides	not	arbitrarily	and	irresponsibly,	but actively	assumes	responsibility	for	the	decisions	he	takes. Keywords:	Schmitt;	decisionism;	necessity;	Weber;	political	action Introduction If	Carl	Schmitt's	concept	of	the	political	is	to	contribute	still	today	to	the	question that	'never	ceases	to	reverberate	in	the	history	of	Western	politics',	namely,	'what does	it	mean	to	act	politically?'	(Agamben	2005:	2),	it	is	essential	to	clarify	the relation	of	the	political	decision	to	necessity.	For	regardless	of	how	one	may	frame the	primacy	of	the	political	in	theoretical	terms,	i.e.,	how	one	explains	why	it	is necessary	to	take	a	political	decision	at	all	(rather	than,	for	example,	follow	a	moral 3 code),	once	practical	necessity	is	thought	to	apply,	the	decision	loses	all	meaning: Action	becomes	re-action,	and	the	sovereign	decision	maker	falls	victim	to necessity's	force. An	example	of	a	reading	that	has	this	practical	effect	is	that	of	Leo	Strauss.	Strauss wonders	how	Schmitt	can	defend	the	primacy	of	the	political	without	recourse	to moral	reasons,	and	concludes	that	Schmitt's	theory	of	the	political	represents	a 'liberalism	with	the	opposite	polarity'	(Strauss	1995:	117).	According	to	this	liberal stance,	Strauss	explains,	all	political	decisions	are	equally	valid	as	long	as	they	are based	on	'"serious"	convictions,'	i.e.,	are	'decisions	oriented	towards	the	real possibility	of	war'	(Strauss	1995:	117).	Having	confirmed	the	freedom	of	the political	decision,	Strauss	thus	immediately	qualifies	this	freedom	by	reference	to war	–	qualifies,	because	war	is	only	too	easily	associated	with	necessity,	and necessity	negates	the	freedom	to	decide.	Harvey	Lomax,	for	example,	finds	that	the serious	situation	or	'Ernstfall'	(Schmitt	1963:	30)	on	which	Schmitt	premises	war	as a	state	of	exception	'refers	to	a	state	of	emergency	in	which	everything	important	is at	stake,	a	matter	of	life	and	death'	(Meier	1995:	132).	Accordingly,	the	term	is rendered	'dire	emergency'	by	Lomax	himself	(Meier	1995:	132),	'exigency'	by	Gary Steiner	(Löwith	1995:	147),	and	'the	extreme	case'	by	George	Schwab	(Schmitt 1996:	30).	Whether	intended	or	not,	the	suggestion	in	each	of	these	cases	is	that there	is	a	situation	that	necessitates	war. 4 Schmitt's	own	choice	of	words	appears	to	confirm	this	finding	of	necessity.	For example,	in	Political	Theology,	Schmitt	links	the	state	of	exception	to	an	existential danger	threatening	the	state:	'The	exception	can	.	.	.	be	characterized	as	a	case	of extreme	peril,	a	danger	to	the	existence	of	the	state,	or	the	like'	(Schmitt	2005:	6). Schmitt	also	refers	to	Jean	Bodin	as	justifying	the	sovereign's	breach	of	duty	to	the people	only	'under	conditions	of	urgent	necessity'	(Schmitt	2005:	8),	calls	the exception	'extremus	necessitatis	casus'	(Schmitt	2005:	10),	and	bases	the	state	of exception	on	the	state's	'right	of	self-preservation'	(Schmitt	2005:	12).	In	The Concept	of	the	Political,	Schmitt	then	defines	the	political	in	such	a	way	as	to seemingly	equate	politics	with	self-defence;	the	political	is	the	recognition	of	the enemy,	and	the	enemy	is	he	who	attacks	(Meier	1995:	18-19). These	references	to	necessity	–	existential	necessity	–	are	surprising	given	that	the latter	is	incompatible	with	the	notion	of	the	decision,	being	neither	based	on	a decision	nor	allowing	for	a	decision	to	be	made.	This	incompatibility	could	be resolved	by	claiming,	as	Agamben	does,	that	an	objective	state	of	necessity	is	a 'naive	conception',	and	that	'obviously	the	only	circumstances	that	are	necessary and	objective	are	those	that	are	declared	to	be	so'	(Agamben	2005:	30).	However, this	view	can	only	lead	to	two	possible	conclusions,	and	neither	is	helpful	in	drawing out	a	constructive	meaning	of	political	action.	If	one	were	to	adopt	Agamben's stance,	the	whole	problematic	of	the	state	of	exception	would	either	reveal	itself	as	a legal	phenomenon	in	the	first	place,	i.e.,	law's	attempt	to	establish	a	fictitious	state	of 5 nature	as	its	own	presupposition	(Agamben	2005:	33),	leaving	no	independent	role for	the	sovereign	to	play.	Or,	if	the	sovereign	were	recognised	as	independent	of	the legal	order	and	free	to	decide	on	its	suspension,	an	Agamben-inspired	critique would	merely	focus	on	the	sovereign's	false	claim	of	existential	necessity,	leaving the	underlying	assumption	of	the	sovereign's	absolute	freedom	to	decide	intact. Between	these	two	poles	of	system	and	absolute	freedom,	a	constructive	role	for	the sovereign	actor	could	hardly	be	made	out. In	contrast,	this	essay	takes	the	possibility	of	objective	necessity	seriously,	even	if only	to	show	that	it	has	no	place	in	Schmitt's	theory	of	the	political.	This	raises	the question	of	what	Schmitt	means	by	the	term	'existential'	if	not	existential	necessity. The	ensuing	analysis	discovers	the	creative	role	of	the	sovereign	in	giving	meaning to	the	state's	existence,	a	role	in	which	the	sovereign	stands	not	only	'outside'	the legal	system,	but	also	'belongs'	to	it	(Schmitt	2005:	7).	This	belonging,	it	is	argued,	is comprised	of	two	active	aspects:	the	sovereign's	orientation	towards	the	legal	order, and	his	responsibility	in	taking	the	decision	–	responsibility	not	as	a	response	(to law,	to	God,	to	the	Other,	to	necessity)	and	thus	as	subsumption	and	potential accountability	(see	e.g.	Kahn	2011:	89),	but	as	a	unilateral	assumption	of	the	work the	decision	sets	itself. Necessity	and	the	decision	on	the	exception 6 Necessity,	conceived	as	a	force	that	determines	action	(rather	than	as	a	particularly compelling	reason	for	an	action	aimed	at	a	certain	outcome),	is	incompatible	with the	notion	of	the	decision.	When	something	is	necessary	in	the	absolute	sense,	it	is more	than	merely	possible	or	persuasive	or	the	only	option	for	achieving	a	certain aim.	It	simply	must	be	done.	As	such,	necessity	leaves	no	scope	for	deliberation	and decision	on	the	part	of	the	subject.	It	is	for	this	reason	that	necessity	is	said	to	'have no	law'	(necessitas	legem	non	habet),	i.e.,	that	no	legal	responsibility	is	said	to	attach to	necessary	action.	Law's	self-distinction	from	force	is	premised	on	the	subject's capacity	to	decide,	i.e.,	to	choose	between	lawful	and	unlawful	action.	Law	takes	into consideration	'the	contrary	will	of	the	legal	subject	[den	entgegensteheneden	Willen eines	Rechtssubjekts]',	as	Schmitt	would	say	(Schmitt	1978:	XVII1).	As	soon	as	this 1	This	phrase	is	cited	from	the	German	edition	because	it	has	not	been	captured	by the	English	translation.	The	following	is	the	German	original:	'Grade	aus	dem,	was	sie rechtfertigen	soll,	wird	die	Diktatur	zu	einer	Aufhebung	des	Rechtszustandes überhaupt,	denn	sie	bedeutet	die	Herrschaft	eines	auschlieβlich	an	der	Bewirkung eines	konkreten	Erfolgs	interessierten	Verfahrens,	die	Beseitigung	der	dem	Recht wesentlichen	Rücksicht	auf	den	entgegenstehenden	Willen	eines	Rechtssubjekts,	wenn dieser	Wille	dem	Erfolg	hinderlich	im	Wege	steht;	demnach	die	Entfesselung	des Zweckes	vom	Recht'	(Schmitt	1978:	XVI-XVII).	Compare	this	to	the	English translation:	'Paradoxically,	dictatorship	becomes	an	exception	to	the	state	of	law	by doing	what	it	needs	to	justify;	because	dictatorship	means	a	form	of	government that	is	genuinely	designed	to	resolve	a	very	particular	problem.	That	problem	is	the 7 capacity	is	removed	by	the	force	of	necessity,	law	can	no	longer	hold	the	actor responsible	without	losing	its	claim	to	right.	Necessity,	on	the	other	hand,	is	not premised	on	the	possible	acquiescence	of	the	subject.	On	the	contrary,	as	force, necessity	acts	directly	on	the	subject,	leaving	it	no	choice	how	to	act. However,	the	absence	of	choice	on	the	part	of	the	subject	is	not	the	only	way	in which	necessity	excludes	the	decision.	This	absence	of	choice	also	applies	to necessity	itself,	which	is	not	made,	but	simply	arises.	As	a	source	of	right,	necessity thus	has	no	alternatives,	no	outside.	Not	only	does	it	not	allow	for	a	decision,	it	is	not based	on	one.	Schmitt	explicitly	contrasts	law	to	such	a	natural	theory	of	right	by claiming	that	'every	legal	order	is	based	on	a	decision'	(Schmitt	2005:	10).	His	main point	here	is	not	to	show	that	sometimes	law	needs	to	create	an	exception	to	its	own processes	of	apportioning	responsibility	because	necessity	has	removed	the subject's	capacity	to	decide	(in	which	case	law	would	end	where	necessity	begins, with	no	role	for	the	decision	to	play),	but	that	there	is	a	point	of	view	outside	and independent	of	law	from	which	law's	borders	are	established	by	a	decision.	This decision	must	evade	all	normative	determination,	whether	by	law,	morality,	or necessity,	if	it	is	to	be	an	origin	rather	than	a	subject	of	right.	To	claim	that	necessity governs	such	a	decision	therefore	makes	no	sense. successful	defence	of	a	case	to	which	the	opponent's	will	is	diametrically	opposed. Thus	there	is	an	unfettering	of	the	means	from	the	law	itself'	(Schmitt	2014:	xlii). 8 And	indeed,	Schmitt	leaves	no	doubt	that	it	is	a	decision	that	establishes	when	the legal	order	'needs'	to	be	suspended:	'By	his	own	discretion,	the	extraordinary lawmaker	determines	the	presupposition	of	his	extraordinary	powers	(danger	for public	security	and	order)	and	the	content	of	the	"necessary"	measures'	(Schmitt 2004:	69).	Here,	the	need	for	a	decision	should	be	distinguished	from	the	need	to make	a	certain	decision.	While	circumstances	may	be	such	as	to	create	a	perceived need	for	a	decision,	it	does	not	follow	that	the	content	of	the	decision	itself	is therefore	governed	by	necessity.	'Necessity,	Bernard	Williams	(1981:	126)	writes,	'is not	the	same	as	decisiveness'.	War,	on	this	view,	is	not	something	that	is	triggered, something	into	which	one	is	forced,	but	is	decided	upon:	'What	always	matters	is	the possibility	of	the	extreme	case	taking	place,	the	real	war,	and	the	decision	whether this	situation	has	or	has	not	arrived'	(Schmitt	1996:	35). Political	existence If	this	is	the	case,	then	why	does	Schmitt	nevertheless	write	about	the	political decision	in	terms	that	appear	to	imply	existential	necessity?	For	example,	in	The Concept	of	the	Political,	Schmitt	explains	that	the	political	sphere	is	set	apart	from other	spheres	by	its	distinction	between	friend	and	enemy	(Schmitt	1996:	26).	He then	stipulates	two	criteria	for	the	enemy,	namely	that	'he	is,	in	a	specially	intense way,	existentially	something	different	and	alien',	and	that	this	existential	difference is	such	'that	in	the	extreme	case	conflicts	with	him	are	possible'	(Schmitt	1996:	27, 9 emphasis	added).	Such	conflicts,	to	the	extent	that	they	entail	the	right	of	the sovereign	to	suspend	the	normal	legal	order	and	demand	the	'sacrifice	of	life'	from citizens	(Schmitt	1996:	35),	are	furthermore	justified	only	by	existential	threats: There	exists	no	rational	purpose,	no	norm	no	matter	how	true	...	which	could justify	men	in	killing	each	other	for	this	reason.	If	such	physical	destruction	of human	life	is	not	motivated	by	an	existential	threat	to	one's	own	way	of	life, then	it	cannot	be	justified.	(Schmitt	1996:	48-49) One	might	want	to	conclude	from	this	that	war,	and	its	associated	state	of	exception, is	a	matter	of	existential	necessity,	of	'encounter[ing]	an	objective,	external	force	.	.	. that	makes	a	life-and-death	claim'	(Meier	1995:	15).	However,	as	Schmitt	himself warns	in	The	Age	of	Neutralizations	and	Depoliticizations,	care	must	be	taken	when interpreting	concepts	whose	meaning	will	depend	on	their	specific	use	at	the	time: 'All	essential	concepts	are	not	normative	but	existential.	If	the	center	of	intellectual life	has	shifted	in	the	last	four	centuries,	so	have	all	concepts	and	words'	(Schmitt, 1996b:	85). For	the	meaning	of	'existential'	itself,	it	is	significant	that	in	this	context	Schmitt opposes	norms	to	existence,	given	his	opposition	of	norms	to	decisions	elsewhere	in his	work.	Indeed,	in	Constitutional	Theory	Schmitt	not	only	links	political	existence 10 to	a	decision	('political	will'),	but	finds	this	will	itself	to	have	an	'existential character': The	constitution-making	power	is	the	political	will,	whose	power	or authority	is	capable	of	making	the	concrete,	comprehensive	decision	over	the type	and	form	of	its	own	political	existence.	The	decision,	therefore,	defines the	existence	of	the	political	unity	in	toto.	...	In	contrast	to	any	dependence	on a	normative	or	abstract	justice,	the	word	'will'	denotes	the	essentially existential	character	of	this	ground	of	validity.	(Schmitt	2008:	125,	footnote and	emphasis	omitted) Accordingly,	what	justifies	war	is	not	a	threat	to	bare	existence,	but	to	the	type	and form	of	existence,	i.e.	one's	political	organisation.	'Each	participant	is	in	a	position	to judge	whether	the	adversary	intends	to	negate	his	opponent's	way	of	life	and therefore	must	be	repulsed	or	fought	in	order	to	preserve	one's	own	form	of existence'	(Schmitt	1996:	27,	emphasis	added). Such	a	threat	may	still	lead	to	a	situation	of	necessity,	albeit	now	artificially construed	in	terms	of	the	'life	or	death'	of	the	political	form.	However,	even	this necessity	does	not	adequately	capture	Schmitt's	understanding	of	the	decision	on the	exception.	After	all,	it	is	not	the	case	that	a	decision	about	the	form	of	political 11 existence	is	taken	and	then	defended	in	war,	but	that	the	decision	that	determines the	form	of	political	existence	is	itself	the	decision	to	go	to	war. Perhaps	one	therefore	ought	to	begin	one's	inquiry	elsewhere,	and	ask	what	role	the claim	of	necessity	plays	in	relation	to	the	decision	on	the	exception.	In	this	respect, Williams'	observations	on	necessity	are	again	helpful: To	arrive	at	the	conclusion	that	one	must	do	a	certain	thing	is,	typically,	to make	a	discovery	–	a	discovery	which	is,	always	minimally	and	sometimes substantially,	a	discovery	about	oneself	...	The	incapacities	[that	limit	the field	of	options	for	actions]	are	ones	that	help	to	constitute	character,	and	if one	acknowledges	responsibility	for	anything,	one	must	acknowledge responsibility	for	decisions	and	action	which	are	expressions	of	character	– to	be	an	expression	of	character	is	perhaps	the	most	substantial	way	in	which an	action	can	be	one's	own.	(Williams	1981:	130) Thus,	the	declaration	of	enmity	is	part	of	the	ongoing	struggle	to	define	one's	own character,	a	struggle	that,	because	it	involves	claims	of	necessity,	is	thereby	not defensive	but	productive	of	meaning.	This	struggle	is	an	active	process	for	which	one cannot	but	assume	responsibility.	Therefore,	when	Schmitt	writes	that	the	exception 'confirms	not	only	the	rule	but	also	its	existence'	(Schmitt	2005:	15),	'existence'	here should	be	understood	as	the	meaning	conveyed	by	having	been	chosen	amongst	a 12 number	of	possibilities	–	in	this	case,	by	having	been	chosen	as	the	rule	that	one	is ready	to	defend	with	one's	life	–	and	not	just	as	the	bare	fact	of	existence.	In	war, one	struggles	against	an	enemy	identified	as	representing	the	antithesis	to	what	one aspires	to	be.	This	makes	the	enemy	valuable	for	the	process	of	self-constitution.	'Do not	speak	lightly	of	the	enemy',	Schmitt	(Schmitt	1950:	90)	warns:	'One	classifies oneself	through	one's	enemy.	One	rates	oneself	through	that	which	one	recognises as	enmity.' Paradoxically,	therefore,	the	'defence	of	one's	existence'	through	war	is	what	makes life	into	something	'serious',	something	more	than	mere	existence.	In	risking	one's life	in	war,	one	takes	control,	works	on	one's	identity,	and	therefore	lives	in	an enriched	sense.	As	Karl	Löwith	writes,	in	Schmitt	'a	real	state	of	mutual	enmity	gets portrayed	not	as	a	naturally	given	reality	but	rather	as	an	essential	possibility	of political	existence,	as	a	capacity-for-Being	rather	than	as	a	naturally	determined Being-thus'	(Löwith	1995:	148). From	this	perspective,	it	is	unsurprising	that	Schmitt	finds	that	it	is	with	real	wars	of existence	that	this	possibility	of	political	existence	ends.	When	war	is	conducted	as self-defence,	one	is	no	longer	struggling	for	meaning,	but	merely	defending	one's	life against	forces	beyond	one's	control:	'A	life	which	has	only	death	as	its	antithesis	is no	longer	life	but	powerlessness	and	helplessness'	(Schmitt	1996b:	95).	Similarly, when	war	is	conducted	in	the	name	of	universal	values,	i.e.,	values	thought	to	be 13 necessary,	it	requires	the	eradication	of	the	enemy	(Rasch	2004:12),	and	thus destroys	any	future	possibility	of	struggle. Necessity	as	a	force	that	determines	action	therefore	has	no	place	in	Schmitt's theory	of	the	political,	not	only	because	it	would	negate	the	notion	of	the	decision, but	also	because	it	would	spell	an	end	to	political	existence.	What	is	necessary	is neither	war	nor	values,	both	of	which	are	chosen	and	thus	subject	to	a	decision,	but the	ongoing	possibility	of	contestation,	of	struggle	for	meaning.	This	possibility	is represented	by	a	plural	order	in	which	differences	co-exist,	as	only	such	an	order can	contain	the	ongoing	possibility	for	enemies	to	be	made,	meaning	to	be	worked out,	and	for	life	to	be	something	more	than	mere	existence:	'[L]ife	struggles	not	with death,	spirit	not	with	spiritlessness;	spirit	struggles	with	spirit,	life	with	life,	and	out of	the	power	of	an	integral	understanding	of	this	arises	the	order	of	human	things' (Schmitt	1996b:	96).	Political	existence	therefore	cannot	be	governed	by	necessity. On	the	contrary,	in	such	an	order	it	is	necessary	that	nothing	becomes	necessary. Orientation Once	the	'facade	of	necessity'	(Rasch	1999-2000:	1682)	has	been	removed	from	the political	decision,	the	question	once	again	returns	to	its	freedom.	Is	it	true,	as	Slavoj Žižek	writes,	that	the	decision	is	a	merely	arbitrary	instance	of	the	sovereign's	will?: 14 The	concrete	content	of	the	imposed	order	is	arbitrary,	dependent	on	the Sovereign's	will,	left	to	historical	contingency	...	modern	conservatism,	even more	than	liberalism,	assumes	the	lesson	of	the	dissolution	of	the	traditional set	of	values	and	/	or	authorities	–	there	is	no	longer	any	positive	content which	could	be	presupposed	as	the	universally	accepted	frame	of	reference. (Žižek	1999:	18-19;	see	however	Brännström	2015) Žižek	may	be	right	in	saying	that	Schmitt's	theory	of	the	political	is	no	longer dependent	on	a	universally	accepted	frame	of	reference,	but	it	does	not	follow	that the	decision	is	therefore	arbitrary.	Just	because	it	is	free	in	the	sense	that	it	is	not predetermined	by	norms	–	'[e]very	concrete	juristic	decision	contains	a	moment	of indifference	from	the	perspective	of	content'	(Schmitt	2005:	30,	emphasis	added)	–	it does	not	mean	that	the	decision	is	also	indifferent	to	its	content.	After	all,	Schmitt characterises	the	decision	not	only	as	the	'pure	decision	not	based	on	reason	and discussion	and	not	justifying	itself,	...	an	absolute	decision	created	out	of nothingness'	(Schmitt	2005:	66),	but	also	as	'the	exacting	moral	decision'	(Schmitt 2005:	65).	Arbitrariness	suggests	whim	or	the	throwing	of	dice,	a	lack	of	interest	on the	part	of	the	decision	maker.	The	sovereign,	however,	seeks	to	establish	meaning; he	seeks	to	do	the	'right'	thing,	whatever	that	may	be.	This	becomes	clear	when	one considers	that	already	in	1919,	Schmitt	criticises	political	romanticism	for	its	lack	of political	commitment	(Schmitt	1986).	In	The	Concept	of	the	Political,	he	then contrasts	the	'meaningful	antithesis'	of	the	friend-enemy	distinction	with	merely 15 'interesting	antitheses	and	contrasts,	competitions	and	intrigues	of	every	kind' (Schmitt	1996:	35).	The	political,	in	other	words,	requires	a	commitment	from	the decision	maker	that	the	expression	of	a	merely	private	preference	does	not. In	her	foreword	to	Political	Theology,	Tracy	Strong	remarks	that	the	concept	of sovereignty	'looks	in	two	directions,	marking	the	line	between	that	which	is	subject to	law	...	and	that	which	is	not'	(Strong	2005:	xxi).	To	situate	the	sovereign	as oriented	in	a	certain	way	is	helpful,	as	orientation	entails	neither	the	passivity	of subordination	(to	law,	to	God,	to	the	Other,	to	necessity)	nor	a	potentially	arbitrary freedom.	When	one	is	oriented,	one	assumes	an	active,	directed	stance. The	active	aspect	of	orientation	also	manages	to	avoid	that	other	passivity	Schmitt has	sometimes	been	accused	of,	namely	occasionalism.	Löwith,	for	example,	sees	the sovereign	decision	as	merely	caused	by	a	particular	set	of	factual	circumstances	(the concrete	order),	and	concludes	that	this	causation	removes	the	need	for	a	separate concept	of	the	decision	altogether:	'For	it	is	simply	a	consequence	of	decision,	which in	itself	is	empty,	if	from	what	occurs	de	facto	politically,	decision	happens	to	derive the	sort	of	content	which	deprives	decisionism	as	such	of	an	object'	(Löwith	1995: 158).	To	counter	this	argument,	one	needs	to	show	that	the	'genuine'	(Schmitt	2005: 3)	decision	serves	neither	merely	as	an	order's	means	to	establish	itself,	nor	as	the means	for	the	realisation	of	an	independent	and	arbitrary	will. 16 In	this	respect,	one	could	enlist	the	help	of	Schmitt's	1912	work	Gesetz	und	Urteil,	in which	he	first	attempts	to	situate	judicial	decisions	between	the	immanence	of	legal order	and	an	arbitrary	transcendence.	Looking	back	over	his	work	in	1968,	Schmitt explains	in	the	preface	to	the	second	edition	of	Gesetz	und	Urteil	how	his	'thought	of the	independence	of	the	decision	...	lead	to	a	definition	of	state	sovereignty	as political	decision'	(Schmitt	1969).	He	then	expresses	his	hopes	that	the	new	edition of	Gesetz	und	Urteil	may	help	clear	the	misunderstanding	of	the	decision	[Dezision] as	'a	fantastic	act	of	arbitrariness'	and	of	decisionism	[Dezisionismus]	as	a 'dangerous	world	view'	(Schmitt	1969). In	Gesetz	und	Urteil,	Schmitt	claims	that	the	rightness	of	a	decision	arises	not	from the	subsumption	of	an	individual	case	under	a	general	rule,	but	from	the	production of	this	rule	through	the	individual,	exceptional	case.	In	this	production,	the	judge orients	himself	towards	a	prevailing	conception	of	normality.	This	normality, however,	is	not	normality	as	it	arises	from	a	common	practice	of	judging	(which would	once	more	entail	a	subsumption	of	the	judge	to	this	practice),	but	as	the common	expectation	inherent	in	such	a	practice.	Schmitt	thus	writes:	'A	judicial decision	is	correct	today	when	it	can	be	assumed	that	another	judge	would	have decided	the	same'	(Schmitt	1969:	71).	The	judge's	decision	is	therefore	neither	a norm-governed	nor	a	potentially	arbitrary	decision.	It	is	normatively	constitutive, but	makes	a	claim	to	contribute	to	an	existing	project	that	it	could	not	make	had	it been	arrived	at	by	a	throw	of	dice: 17 [T]he	system	reproduces	itself	by	way	of	the	decisions	of	its	judges.	Judges are	forced	to	make	particular	and	singular	judgments,	yet	they	do	not	judge willfully	or	arbitrarily.	They	are	not	viewed	as	psychologically	distinct,	free agents,	but	as	members	of	a	community	(sensus	communis)	of	agents	who claim	a	regulative	universality	for	their	particular	judgments.	In	this	way,	the legal	system	'bootstraps'	its	way	into	existence,	much	as	the	aesthetic	sphere does,	by	virtue	of	exemplary	decisions.	(Rasch	2004b:	102) Returning	to	the	decision	on	the	exception,	one	could	argue	that	here,	too,	the decision	contains	an	active	impulse	towards	correctness	that	can	only	be understood	as	motivated	by	an	existing	context.	This	context	does	not	govern	or regulate	the	decision's	content,	but	determines	the	sovereign's	orientation,	i.e.,	the decision's	direction	towards	an	existing	order	whose	meaning	or	'sense'	(Schmitt 2005:	13)	it	(re-)establishes.	The	serious	situation	or	Ernstfall	arises	when	the contestation	of	meaning	requires	that	one	take	a	position,	that	one	commit	oneself to	a	'definite'	(Schmitt	2005:	9)	point	of	view.	This	view	is	never	arbitrary,	but	a view	on	the	possibilities	that	arise	as	part	of	an	existing	legal	order. Responsibility 18 Even	if	the	sovereign's	decision	cannot	be	regarded	as	arbitrary,	the	absence	of	a normative	framework	to	which	it	can	be	held	up	means	that	its	ultimate	correctness must	remain	uncertain.	It	is	this	uncertainty	that	impacts	the	sovereign's	ability	to disburden	himself	of	responsibility	for	the	decision's	consequences: We	do	decide	that	this	war	was	fought	for	the	right	reasons,	that	one	for	the wrong	ones,	and	that	this	ideal	is	worth	fighting	and	dying	for,	while	that	one	is not	.	.	.	,	but	we	do	not	really	know	whether	we	are	correct	or	not.	Barring revelation,	which	remains	incommunicable,	we	have	no	ultimate	or transcendental	assurance	that	our	decisions	are	valid	for	all	times	and	all	places. We	make	them	without	the	assurance	that	their	structure,	that	their	'form	of validity,'	absolves	us	from	all	responsibility	of	their	having	been	made.	(Rasch 1999-2000:	1682) In	the	political	context,	such	responsibility	is	thematised	by	Max	Weber,	whose lecture	Politics	as	a	Vocation	(Weber	2004)	Schmitt	attended	in	1919,	having already	on	number	of	occasions	referred	to	Weber's	writings	in	his	own	(Ulmen 1985:	5).	Like	Schmitt	would	do	later,	Weber	situates	the	politician	outside	of immanent	order,	in	this	case	the	bureaucratic	hierarchy	in	which	each	action	may	be reviewed	on	the	basis	of	rules,	the	compliance	with	which	disburdens	the	actor	from responsibility	for	the	action's	consequences.	In	this	respect,	Weber	contrasts	the role	of	the	politician	with	that	of	an	official	amongst	the	ranks	of	civil	servants: 19 When	an	official	receives	an	order,	his	honor	lies	in	his	ability	to	carry	it	out, on	his	superior's	responsibility,	conscientiously	and	exactly	as	if	it corresponded	to	his	own	convictions.	This	remains	the	case	even	if	the	order seems	wrong	to	him	and	if,	despite	his	protests,	his	superior	insists	on	his compliance.	...	In	contrast,	the	point	of	honor	of	the	political	leader,	that	is,	the leading	statesman,	is	that	he	acts	exclusively	on	his	own	responsibility,	a responsibility	that	he	may	not	and	cannot	refuse	or	shuffle	off	onto	someone else.	(Weber	2004:	54) At	the	same	time,	Weber	distinguishes	what	he	calls	an	'ethics	of	responsibility'	from an	'ethics	of	conviction'	(Weber	2004:	83).	The	latter	refers	to	a	belief	in	truth	as	the guiding	principle	for	action	whereby	the	actor,	as	if	under	orders,	acts	not	on	his own,	but	on	another's	responsibility.	Weber	explains	that	when	a	Christian	acts	in accordance	with	his	belief	regardless	of	the	concrete	circumstances,	he	is	able	to	do so	without	burdening	his	conscience,	because	he	can	refer	the	outcome	of	his actions	either	to	the	grace	of	God	or	the	wickedness	of	the	people.	In	either	case,	he does	not	need	to	assume	responsibility	himself.	Not	so	for	the	politician,	who	must be	aware	that	he	himself	'holds	in	his	hands	a	strand	of	some	important	historical process'	(Weber	2004:	76),	and	that	no	one	can	answer	in	his	place	for	the consequences	of	his	actions.	The	politician,	in	other	words,	must	adopt	an	ethics	of responsibility. 20 For	Weber,	this	responsibility	arises	in	the	absence	of	any	guarantee	of	the decision's	correctness.	It	is	the	assumption	of	one's	own	position	in	relation	to	a specific	problem.	The	actor	feels	himself	burdened,	he	'takes	on'	or	'carries'	this burden	of	the	decision:	'What	matters	is	the	trained	ability	to	scrutinize	the	realities of	life	ruthlessly,	to	withstand	them	and	to	measure	up	to	them	inwardly'	(Weber 2004:	91).	In	contrast,	those	acting	under	an	ethics	of	conviction	lack	this	'inner gravity'.	They	are	'windbags	who	do	not	genuinely	feel	what	they	are	taking	on themselves	but	who	are	making	themselves	drunk	on	romantic	sensations'	(Weber 2004:	92). Schmitt	describes	a	similar	distinction	in	relation	to	the	state,	where	religious	and social	associations	pursue	their	own	particular	objectives	without	regard	to	the wider	effects	of	their	actions.	In	contrast,	the	sovereign	has	in	mind	the	stability	of the	legal	order	as	a	whole,	for	which	he	takes	responsibility	(Schmitt	1938:	116117 ).	Both	Weber	and	Schmitt	also	juxtapose	political	action	in	this	sense	(which may	include	the	entering	into	war)	with	religious	or	just	wars.	For	Weber,	actors	in religious	wars	justify	what	they	do	by	the	absolute	value	of	the	ends	they	intend	to achieve	in	principle,	and	are	therefore	able	to	exhibit	a	disregard	for	the	concrete circumstances	and	likely	consequences	of	their	actions	in	the	present.	In	phrases that	Schmitt	repeats	almost	identically	(Schmitt	1996:	36),	Weber	writes:	'It	is 21 always	the	very	last	use	of	force	that	will	then	bring	about	a	situation	in	which	all violence	will	have	been	destroyed	...'	(Weber	2004:	85). This	leaves	one	to	consider	as	a	final	point	whether	the	responsibility	Schmitt	has	in mind	may	perhaps,	as	Heinrich	Meier	thinks,	be	the	responsibility	of	the	religious believer	to	do	the	right	thing	in	the	expectation	of	a	final	judgement.	According	to Meier,	in	the	absence	of	knowledge	what	such	a	decision	would	entail,	'probity	has	to carry	the	whole	burden'	of	making	the	right	decision	(Meier	1995:	80-81),	while	at the	same	time	'the	certainty	that	the	course	of	fate	is	always	in	order	already	and that	salvation	is	the	meaning	of	all	world	history'	offers	'relief'	(Meier	1995:	81). Although	Meier's	reading	highlights	the	unilateral	assumption	of	responsibility,	the closure	of	meaning	that	the	notion	a	final	judgement	entails	does	not	accord	with Schmitt's	own	emphasis	on	ongoing	struggle	that	may	never	find	an	endpoint. Schmitt	is	not	a	thinker	of	the	'always-already'	but	of	the	'not-yet'.	For	him,	the	task is	not	to	respond	and	conform,	but	to	struggle	and	create.	Within	this	creative process,	the	decision's	correctness	cannot	be	known	nor	anticipated.	Therefore,	the sovereign	cannot	but	assume	himself	the	burden	of	responsibility	for	its consequences. Conclusion 22 In	Politics	of	Friendship,	Derrida	writes	that	'[w]ithout	the	possibility	of	radical	evil, of	perjury,	and	of	absolute	crime,	there	is	no	responsibility,	no	freedom,	no	decision. And	this	possibility,	as	such,	if	there	is	one,	must	be	neither	living	nor	dead'	(Derrida 1997:	218-19;	on	Derrida	and	Schmitt,	see	de	Ville	2015).	Schmitt's	theory	of	the political,	with	its	notion	of	the	free	decision	not	subordinated	to	norms,	cannot	rule out	this	possibility	of	radical	evil.	However,	because	of	this	possibility,	the	decision can	be	a	decision	and	can	be	responsible. This	essay	has	argued	that	the	'juristic'	space	between	legal	order	and	the	state	of nature	(Schmitt	2005:	13)	in	which	the	decision	is	taken	can	be	construed	as	a	space between	law,	necessity,	and	arbitrary	freedom	(on	the	'in-between',	see	however Falk	2015).	It	began	by	explaining	why	necessity,	whether	in	its	guise	as	a	situation of	self-defence	or	as	action	determined	by	absolute	values,	is	incompatible	with	the notion	of	the	decision.	The	political,	according	to	Schmitt,	takes	precedence	over	the moral	because	it	represents	the	ongoing	and	open	struggle	for	meaning	that	makes life	worth	living.	Necessity	would	negate	the	agency	needed	for	this	struggle,	and would	end	its	process. This	essay	has	then	shown	that	the	sovereign,	rather	than	deciding	arbitrarily,	ought to	be	imagined	as	oriented	towards	the	legal	order	on	which	he	decides.	However, the	decision	nonetheless	remains	uncertain,	and	the	sovereign	therefore	cannot avail	himself	of	the	burden	of	responsibility	for	its	consequences.	On	the	contrary, 23 his	is	a	responsibility	for	the	order	as	a	whole,	and	he	actively	assumes	this	burden in	the	struggle	for	a	life	more	than	mere	existence. This	reading	has	been	proposed	to	counteract	the	critical	association	of	Schmitt	with a	practical	tendency	to	present	all	political	decisions	in	the	light	of	existential necessity,	enabling	those	in	charge	both	to	act	outside	of	law	and	claim	that	their decisions	were	forced	upon	them	by	necessity	(as	if	it	went	without	saying	that outside	law,	there	existed	only	the	state	of	nature).	It	has	endeavoured	to	show	that Schmitt	ought	not	to	be	associated	with	this	tendency,	as	necessity	plays	no	part	in his	theory	of	the	political.	Furthermore,	by	restoring	to	Schmitt's	decision	its	aspects of	freedom	and	independence,	one	is	able	to	highlight	not	only	the	implications	of choice,	but	also	establish	a	positive	role	for	the	political	decision	maker	beyond	the role	of	law-abiding	subject,	arbitrary	dictator,	or	the	helpless	victim	of	higher	forces. Bibliography Brännström,	L.	(2015)	'Sovereign	Order?	Taking	Stock	of	Carl	Schmitt's	Definition	of Sovereignty	in	Light	of	Concrete	Order	Thinking',	p.	xx-xx,	in	M.	Arvidsson,	L. Brännström	and	P.	Minkkinen	(eds),	The	Contemporary	Relevance	of	Carl	Schmitt. Law,	Politics,	Religion.	Abingdon:	Routledge. 24 Derrida,	J.	(1997)	Politics	of	Friendship	[1994].	Trans.	G.	Collins.	London	and	New York:	Verso. De	Ville,	J.	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