May 10, 2011

A decisionist's dilemma: 'Is the sovereign’s decision right because he commands it, or does he command it because it is right?' [Socrates, Plato's Republic]?

I command you to obey my decision [puhuiko Platon joskus oppilailleen tällä tavoin Akademeiassa; entä komensiko Jeesus kaupustelijoita temppelissä juuri näillä sanoilla?]

If you obey my commands, you will remain in my love, just as I have obeyed my Father's commands and remain in his love [John 15:10].
The essence of ultimate decision remains impenetrable to the observer - often, indeed, to the decider himself [John F. Kennedy].

Decisionist Philosophy of Law

Decisionists contend that certain problems (religious, moral, political, or legal) must be settled by virtue of an agent’s capacity to render a decision during exceptional circumstances. The exception occurs when no objectively valid norms exist to guide action. At this point, therefore, they assume that only the capacity and willingness of the agent to act justifies the decision. Consequently, since the agent’s decision is self-justified, it occurs in a normative vacuum. Decisionism is mainly associated with Carl Schmitt (1888–1985), who coined the term to describe his theory of sovereignty. Other decisionists are, for example, Jean Bodin (1530–1596), Thomas Hobbes (1588–1679), Juan Donoso Cortés (1809–1853), and Friedrich Nietzsche (1844–1900).


Because decisionism attempts to establish the validity of religious, moral, political, or legal norms upon an agent’s decision, it is frequently characterized as a species of nihilism. However, if nihilism is defined as the rejection of all transcendent values, decisionism need not be nihilistic in this sense. For example, the “divine command” theory holds that the justification of moral rules depends on whether they conform to the will of God: the rightness or wrongness of an action is determined by God’s decision. Accordingly, God’s commands are universally valid for all people. On the contrary, by rejecting the validity of any transcendent value, someone such as Nietzsche embraces radical nihilism. For him, all values are perspectival: they are the result of people’s will to power. Someone such as Thomas Hobbes, however, is not a nihilist in Friedrich Nietzsche’s sense. He grounds the validity of moral, legal, and even religious values on the sovereign’s power to enforce commands (decisions) on subjects. Thus Hobbes’ decisionism avoids radical nihilism by postulating an all-powerful sovereign as the last court of appeal to settle value disputes among conflicting parties in society.

Law and Decision

While virtually absent from Anglo-American legal and political theories, the term “decisionism” is well known in the European continent. It is in continental jurisprudence and politics that decisionist theories have flourished. Decisionists maintain that a legal or political deci-sion need not always be justified according to norms of adjudication within a given constitutional system. They contend that not all juridical and political problems can be effectively solved by appealing to legal or political principles or to free public discussion. For them, there are crucial moments in the life of a legal and political community when its representative(s) must act (contrary to the law if necessary) to salvage it. This is the so-called rule of exception or state of emergency. For example, when there is a real threat of either civil unrest (civil war) or foreign aggression, the sovereign may decide to suspend the constitution to restore order. From which it follows, according to Carl Schmitt, that “a sovereign is he who decides on the exception.” During exceptional (abnormal) circumstances, a sovereign cannot appeal to valid norms to render a decision. This is because the validity of norms depends upon normal circumstances. For Schmitt, therefore, a sovereign’s decision to declare a state of emergency is beyond normative justification. Consequently, his decision appears to be justified ex nihilo based just on the sovereign’s power to impose his will on others.

Historical Background

The exception can be traced back to Jean Bodin, who recognized that one of the necessary conditions of sovereignty is the prerogative to decide in the last instance. The decisionist component is also present in the Hobbes’ sovereign who has not only a monopoly to coerce, but, more important, a monopoly to decide the content of the law—including the content of canon law. In Donoso Cortés one finds an example of political decisionism: the sovereign decides to act against the anarchical forces of evil (those fomenting civil unrest) to preserve the stability and harmony of a given political community. For him, the choice is not between liberty and dictatorship, but rather between anarchy and order. He chooses dictatorship as the only way to contain civil unrest and therefore preserve order. For Schmitt, however, the role of the exception in law and politics is like the role of a miracle in traditional Catholic theology. A miracle is God’s decision to suspend the laws of nature to intervene in world affairs and thereby reestablish Divine order. Likewise, when faced with civil unrest or foreign aggression, a sovereign decides to suspend the constitution and thereby re-establish public order.


Decisionists face a serious dilemma: Either they D maintain that any decision is as good as any other (radical nihilism), or they postulate the existence of a sovereign who, by virtue of having a monopoly of power, imposes his decisions on others (authoritarianism). If one decides to accept the first horn of this dilemma, then one’s decision is arbitrary. Why accept the first horn rather than the second one? On the other hand, if the second horn is accepted, then, according to Plato, the old Socratic question emerges: Is the sovereign’s decision right because he commands it, or does he command it because it is right? Since some decisionists (for example, Hobbes and Schmitt) maintain that a sovereign’s decision may be self-justified, they have no choice but to accept that a decision is right because it is commanded by one who has the power to enforce it. If this is so, they embrace the old dictum that might makes right (Republic, 338c). Others (for example, Bodin and Donoso Cortés) maintain that a decision is justified based on reason of state. That is, the sovereign’s decision is justified as necessary to preserve a political community. Who, however, is to determine that a given political community should be preserved? The sovereign is to do so.

Therefore, decisionists escape radical nihilism by embracing authoritarianism.

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