Who is Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law
By Mattias Kumm*
A. From the Total State to the Total Constitution?
In 1931 Carl Schmitt published an article titled “the turn to the total state.”1 The total state that Schmitt describes is not yet a totalitarian state. Germany is still a liberal democracy and the Weimar Constitution is still the supreme law of the land. But the total state Schmitt describes is a state in which the traditional lines between the sphere in which the private law society governs itself and the sphere of state intervention, or the public domain, have been undermined. According to Schmitt, the pluralistic forces of civil society have captured the state and made it an instrument to serve their purposes. Everything is up for grabs politically. It is a state of political mobilization and deep ideological conflict, reflected in the plurality of deeply divided political parties in parliament. It is possible to distinguish between three features, which together illustrate the total prevalence of politics over law underlying “the turn to the total state.”
First, the idea of an autonomous domain of private law as an integral part of an apolitical state-free sphere had collapsed. The belief in a civil society that organizes itself by means of private law, the content of which is defined by apolitical legal experts, no longer resonated. Private law, too, had become the object of self- conscious, broad-based political struggle. Private law was wrested from the legal priesthood and became a mundane object of regulatory intervention. The 19th century ideas of scholarly mandarins, who conceived of private law in natural law, historicist, or conceptual terms or thought of the code as the authoritative embodiment of legal rationality, were replaced by ideas that private law, too, was subject to political choice. Correspondingly, the regulatory state, featuring a
Professor of Law, New York University School of Law. Director of the LL.M./SJD Program. Email:
CARL SCHMITT, Die Wendung zum Totalen Staat, in POSITIONEN UND BEGRIFFE IM KAMPF MIT WEIMAR, GENF, VERSAILLES 1923-1939, at 166-78 (3d ed. 1994). 1