The Re-emergence of Nazi Law

According to Schmitt, the ultimate power of government is not to be found in legislation, but in the executive power to abrogate or suspend legislation. What matters is not the rule, but the exception, and "sovereign is he who decides the exception." Schmitt's aphorism describes how Hitler in fact took power, with the unilateral abrogation of civil liberties in Germany. Hitler imposed a "state of exception" on those whom he deemed alien to or a danger to the regime, and those in such a state of exception no longer have the rights of citizens. This state of exception, willed by the German unitary executive power, was the juridical basis for the Nazi death camps. The assertion of notional "unitary executive power" in part results from officials' prior disgust at the inherent weakness of a parliamentary system to forcefully address long-term problems facing society, like a weak fiat currency, economic crisis, or terrorism. A "unitary executive power" appeals to the "Right," to which Schmitt and purportedly the Bush Jr. administration belong, but, one has to note, it also could have appeal for the "Left." Such executive powers no doubt appeal to all who are certain of their own rectitude, certain that they are guided by destiny or by God to act, to be decisive. Thus one characteristic of fascism is said to be "decisionism." "At least we're doing something," a decisionist says - even if what "we're" doing is in fact despotic and destructive. George W. Bush is, he tells us, "the decider."