Sovereignty, exception, and norm

Journal of Law and Society

Volumn 34, Issue 1, 2007, Pages 31-45

  Norris, Andrew ^a  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

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EID: 33847405644     PISSN: 0263323X     EISSN: 14676478     Source Type: Journal    
DOI: 10.1111/j.1467-6478.2007.00380.x     Document Type: Review

References (72)

1. C. Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (1985) tr. G. Schwab, 36; I silently modify the translation throughout when accuracy demands. German references are from Politische Theologie (1996, 7th edn.).
2. C. Schmitt, Über die drei Arten des rechtswissenschaftlichen Denkens, 2. Auflage (1993) 23-4.
3. Schmitt, op. cit., n. 1, p. 5.
4. J. Dewey, Logic: The Theory of Inquiry (1938) 35.
5. id.
6. J. Dewey, Reconstruction in Philosophy (1920) 161, 163. As Alan Ryan emphasizes, Dewey's stance here makes it difficult to see how he could claim, as he did, that it was absolutely crucial to align science and aesthetics if humankind were to be more than 'a race of economic monsters, restlessly driving hard bargains with nature and one another.' As Ryan puts it: If there is no logical contradiction, there is some rhetorical tension between the largeness of the claims about what is at stake in the well-being of an entire civilization and the methodological injunction to look at each case in its own right. What one misses is what Dewey's hero Francis Bacon called axiomata media, middle-range principles that connect the large concern and the particular case.
7. (A. Ryan, John Dewey ond the High Tide of American Liberalism (1995) 232.)
8. Dewey, id., pp. 188-9.
9. Compare Dewey's critique of the focus on 'the State' in his response to Walter Lippmann's at times almost Schmittian manifesto, The Phantom Public (1925),
10. in J. Dewey, The Public ond its Problems (1927) 8-9.
11. G.K. Chesterton, The Man Who Was Thursday (1986) 45.
12. id., pp. 11, 10, 12.
13. id., p. 61.
14. I note that this is a reading of Kant that has recently been challenged; on the alternative account, though Kant might have been somewhat confused both in his exposition and his own understanding of the matter, in the end things in themselves are not objects of reference to which we intelligibly refer. For a helpful summary, see S. Gardner, Kant and the Critique of Pure Reason (1999) 284 ff.
15. Chesterton brings out the political implications this vision has for him elsewhere, where he emphasizes that if society is to function in any but a destructive way, people must be allowed to live 'normal' lives, where normality is the precondition of law, not its product. Though lines need to be drawn in order to give our lives the order they need, such lines cannot be drawn just anywhere. G.K. Chesterton, The Outline of Sanity (2001) 182, 52, and 156-7.
16. Genesis 1:18. The fourth day thus repeats and continues the work of the first (or last).
17. Schmitt, op. cit., n. 1, p. 5. Schmitt describes sovereignty, not the exception, as a borderline concept. But he does so because of its essential association with the 'borderline case'. And since the exception is not a particular case or Fall, it should itself be understood as a concept that covers various cases - as Schmitt here indicates ('the exception is to be understood to refer to a general concept [Begriff] in the theory of the state').
18. id.: 'hier unter Ausnahmezustand em allgemei.ner Begriff der Staatslehre zu verstehen ist, nicht irgendeine Notverordnung oder jeder Belagerungszustand.'
19. id., p. 6.
20. id., p. 12.
21. C. Schmitt, Verfassungslehre (1989) 23.
22. Schmitt, op. cit., n. 1, p. 13.
23. G. Agamben, Homo Sacer: Sovereign Power and Bare Life (1998) tr. D. Heller-Roazen, 18, 19.
24. See T. Hobbes, Leviathan, ed. C.B. Macpherson (1968) 120.
25. Schmitt, op. cit., n. 1, p. 45.
26. id., p. 46.
27. id., p. 44.
28. Contrast Weber's deftnition of sociology as 'a science concerning itself with the interpretive understanding of social action' in M. Weber, Economy ond Society, Vol. I, eds. G. Roth and C. Wittich (1978) 4 f.
29. Schmitt, op. cit., n. 1, p. 14.
30. J.L. Austin, 'A Plea for Excuses' in Philosophical Papers, eds. J.O. Urmson and G.J. Warnock (1961) 138. Austin presents no argument for this. I recently had a student insist that Austin is wrong in his claims here, and that it would be perfectly in order for him (the student) to say, for example, to his roommate after arriving home from school on his bicycle, 'I rode home normally'. But when pressed to say how his roommate might respond to such an utterance, he admitted that this would hardly be accepted at face value, and the roommate would probably respond, 'What do you mean? Do you mean you rode home in the normal way, that is, up Walnut and then down 44th Street?' And he likewise acknowledged that his only option here would be just to say, 'No, I just rode my bike in the normal way, in that I didn't stand on my head when I rode, or anything crazy like that.' How the roommate might respond to such 'information' was not thought important.
31. See S. Cavell, 'Must We Mean What We Say?' in Must We Mean What We Say? (1969)
32. and S. Cavell, The Claim of Reason: Wittgenstein, Skepticism, Morality, and Tragedy (1979).
33. For further discussion of this argument, see the introduction to A. Norris (ed), The Claim to Community: Essays on Stanley Cavell and Political Philosophy (2006). Some will object that Austin and Cavell are not the best places to look for an instance of ordinary language philosophy engaging with the question of the exception, but that we would do better to look to Wittgenstein, whose account of language use as an ongoing engagement with the aporias of rule following appears to place the exception at the heart of the ordinary. I argue against Chantal Mouffe and Simon Critchley that this reading of Wittgenstein is deeply mistaken
34. in A. Norris, 'Cynicism, Skepticism, and the Politics of Truth' (2006) 9(4) Theory & Event.
35. I was thus quite wrong to argue that the decision as Schmitt characterizes it is unavoidable, as I did in A. Norris, 'Carl Schmitt's Political Metaphysics: On the Secularization of the Outermost Sphere' (2000) 4(1) Theory & Event. What I took to be an investigation of metaphysics was itself an instance of metaphysics.
36. Indeed, as Gopal Balakrishnan emphasizes, Schmitt in Political Theology treats questions of political theology in such different ways than he does in the almost exactly cotemporaneous Roman Catholicism and Political Form that 'it is hard to believe that the author had written one book inunediately after the other.'
37. G. Balakrishnan, The Enemy: An Intellectual Portrait of Carl Schmitt (2000) 51.
38. Where the first draws upon the theological roots of sovereignty so as to emphasize the 'unlimited' character of the decision that defines it, the second presents the Church as a potentially universal institution capable of genuinely political mediation and representation. For a helpful discussion of the reappearance of earlier themes in Schmitt's 1933 Staat, Bewegung, Volk,
39. see the first cha1pter of B. Scheuerman, Carl Schmitt: The End of Law (1999).
40. Schmitt, op. cit., n. 2, p. 24.
41. id., p. 11.
42. C. Schmitt, The Concept of the Political (1996) tr. G. Schwab, 46. Schmitt's quotation marks - which I initially took to be scare quotes - are silently omitted in the translation.
43. Compare C. Schmitt, Der Begriff des Politischen (1932) 34.
44. Schmitt, op. cit., n. 18, p. 176, emphasis mine.
45. id., p. 8; compare Schmitt's discussion of the sovereign decision on p. 49.
46. id., p. 37.
47. id., pp. 24, 25.
48. Andreas Kalyvas argues incorrectly that Schmitt is concerned with only this sort of decision, and not the 'dictatorial' ability 'to violate and transgress an established legal order' - though Kalyvas grants that this 'is not always clear,' and describes Political Theology as Schmitt's 'most obscure and ambivalent text'.
49. A. Kalyvas, 'Carl Schmitt and the Three Moments of Democracy' (2000) 21 Cardozo Law Rev. 1534.
50. I would argue that the language of an absolute decision is misleading here as well, as it is almost incoherent to say, as Schmitt does, that a constituent power in founding a new state makes a decision 'born out nothingness'. Neither the revolutionaries who founded the United States nor those who founded the French Republic nor those who created any of the more contemporary states that might be cited as being instances of the emergence of this constituent power occupied a vacuum. What they wanted was not simply to produce a future, but to protect established accomplishments: families, property, relationships, and conceptions of themselves as individuals who would in the future have to negotiate with the state they set out to found.
51. Schmitt, op. cit., n. 1, p. 13. History is thus set aside, by the sovereign, and by Schmitt.
52. Q. Skiimer, The Foundations of Modern Political Thought, 11 (1978) 287.
53. J. Bodin, On Sovereignty: Four Chapters from The Six Books of the Commonwealth, tr. and ed. J. Franklin (1992) 1.
54. id., p. 11; compare p. 51.
55. Skinner, op. cit., n. 39, p. 289.
56. D. Engster, 'Jean Bodin, Scepticism and Absolute Sovereignty' (1996) XVII History of Political Thought 489 ff.
57. As Bush put it in a defence of his embattled Secretary of Defense, 'I'm the decider, and I decide what's best'.
58. J. VandeHei, 'Bush Names New Budget Chief;
59. More Changes Coming But Rumsfeld Will Stay In Job, President Says' Washington Post, 19 April 2006.
60. On these limits, see Skinner's discussion at op. cit., n. 39, pp. 293 ff.
61. and J.H.M. Salmon, 'The Legacy of Jean Bodin: Absolutism, Populism or Constitutionalism?' (1996) XVII History of Political Thought 503 ff.
62. See Julian Franklin's helpful discussion of this 'incoherent' claim in the Introduction to Bodin, On Sovereignty.
63. See Jeremy Elkins's helpful review of these developments in Tudor England in J. Elkins, 'Declarations of Rights' (1996) 3 University of Chicago Roundtable 261-81.
64. As Elkins there notes, the analogy between sovereign and God that lies at the heart of Schmitt's political theology is found in fourteenth-century discussions of the Pope's ability to perform the legal equivalent of 'miracles,' but explicitly repudiated in James I's 1610 'Speech to the Lords and Commons of the Parliament at White-Hall.'
65. Schmitt, op. cit., n. 1, p. 8.
66. Richard Tuck nicely relates this dispute to the role of scepticism in modern political thought in general and Hobbes in particular in his short Hobbes,
67. reprinted in R. Tuck, Great Political Thinkers (1992) 137 ff.
68. The extreme and disturbing writings of John Yoo complicate this judgment somewhat. In a less irresponsible if still Schmittian vein, Richard Posner argues that presidential acts undertaken in response to what Posner very loosely describes as a state of national emergency should be understood as belonging to 'a class of criminal acts that are not excused but nevertheless permitted.' Posner would defend such exceptions as being analogous to civil disobedience, which he thus severs from its connection with public debate on the proper meaning of shared political values. Posner argues that his view provides a 'partial defense' of such acts and he in effect argues that the courts should honour this defence, though he acknowledges that they need not. R. Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency (2006) 153, 155. As Posner's own analysis indicates, if his reading is correct and the Administration's wrong, we are confronted with a series of criminal acts, ones that we or the judiciary might choose to forgive, but that are not, for all that, themselves exceptions to the law unless we choose to make them so. Posner does not so much demonstrate the inevitability of the exception as advise us to make it real, and a real part of the legal system.
69. Ackerman attacks Schmitt's Political Theology as 'melodramatic' and takes care to give criteria of what is and is not an 'existential threat' to the nation.
70. B. Ackerman, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism (2006) 56, 21, 171, and throughout.
71. Agamben goes so far as to argue that all examples are exceptional (instances of the exception) in that they are, as examples, taken outside of the class they allegedly exemplify. I discuss the disastrous implications of this position in 'The Exemplary Exception: Philosophical and Political Decisions in Giorgio Agamben's Homo Sacer' in Politics, Metaphysics, and Death: Essays on Giorgia Agam hen 's Homo Sacer, ed. A. Norris (2005).
72. I am extremely grateful to Jeremy Elkins for his comments on an early draft of this essay.