Constituting the Enemy: A Response to Carl Schmitt
in A Sajo, ed., Militant Democracy (The Netherlands: Eleven International Publishing, 2004) 15-45.
32 Pages Posted: 16 Feb 2013
Date Written: 2004
Today many democratic states committed to the rule of law must grapple to delineate the bounds of their authority to combat international terrorism, which necessarily requires a definition of who the terrorist enemy is. When determining who is an enemy of the state, government is confronted by an existential question of politics, a question that many have claimed judges are unsuited to answer. Carl Schmitt's work in legal and political theory argues that the judiciary cannot be the guardian of the constitution because existential decisions are by nature unconstrained by law. This chapter considers the legal limits placed on government in defining not the international enemy, but the enemy within. It focuses on the decision of the Australian High Court in The Communist Party Case and argues that the best interpretation of the Court’s decision is that it relied on resources in the common law constitution to show that legality constrains both parliament and the executive even in the absence of an entrenched bill of rights. The author argues that the Schmittian choice ― either the parliament/executive or the judges — is a false one. There is the middle ground of legality ― the constitutional values of the rule of law ― which requires that when parliament and government make such a determination, they make it in a way that respects the requirements of the legality. Through a discussion of this case, as well as other cases from common law jurisdictions, the author shows how the common law exposes the constitutional resources of the rule of law in an area about which bills of rights rarely speak ― the legal constitution of both legislative and executive authority. Whatever the nature of the emergency or the political question, courts must ask what the legal limits are on the power of parliament and government.
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