  The sovereign dictator has the power, in taking the decision on the exception, to set aside the positive legal and constitutional order in its entirety and to create a novel positive legal and constitutional order, together with a situation of social normality that fits it. It follows that the sovereign dictator cannot base his claim to be acting in the name of the people on any kind of formal authorization. If the old constitution no longer exists and the new one is not yet in force, there is no formal procedure for generating a public will. And yet, the sovereign dictator claims to exercise the constituent power of the people. What is more, the constitutional order he is to create is to be considered as legitimate since it rests on the people’s right to give itself a constitution (CT 136–9). Schmitt’s view assumes that it is possible to speak of the existence of a people in advance of the creation of any positive constitutional framework. Schmitt therefore has to explain what it means for a people to exist prior to any constitutional framework, and he has to give an account of how the people’s political existence prior to any constitutional framework can ground a sovereign dictatorship.