Political Theology

This will be the reading for Saturday, January 16.  We will meet at 4:30 here, and a printable copy is here.

Political Theology was published in 1922, just before the Weimar Republic began its decade-long descent into madness.  The book consists of four related essays, though we will focus on the first three.  The first chapter, “Definition of Sovereignty”, argues that sovereignty, the highest power in a political system, is defined as the ability to decide on an exception; that is, to decide when the rules no longer apply.  The second, “The Problem of Sovereignty”, is a criticism of (mostly Neo-Kantian) attempts to describe a state founded entirely on rule-based procedures.  Finally, “Political Theology” argues that political concepts are secularized theological concepts, and that a given time’s or culture’s theory of the state tracks with its theology.

  1. Definition of Sovereignty

The book opens with this striking line: “Sovereign is he who decides on the exception.”  With this line, Schmitt is trying to identify exactly what the highest power in a political system is; it turns out that the highest power is deciding when the rules do not apply in a given situation.  Because it deals with exceptions, sovereignty is primarily concerned with borderline cases, not the routine workings of government.  Just as much, however, the idea of the exception needs to be worked into a general theory of the state; it cannot be reserved for talking about emergencies or states of siege.

The decision on the exception is a real decision; norms cannot govern it because it is by definition a situation that exceeds legal norms. Some legal theorists argued that while the test of whether or not an emergency exists is not a “juristic” one, they still wanted to argue that any decisions about exceptions had to be derived from norms.  Schmitt thinks this is question-begging.  The exception cannot be circumscribed by a law.  The precise details of an emergency cannot be anticipated, and rules cannot spell out how to deal with one.  From a liberal constitutional perspective, no person has the competence to decide on an exception.  The constitution can only say who can guide.

The sovereign has a strange relation to the legal system:

“Although he stands outside the normally valid legal system, he nevertheless belongs to it, for it is he who must decide whether the constitution must be suspended in its entirety.  All tendencies of modern constitutional development point toward eliminating the sovereign in this sense. . . . But whether the extreme exception can be banished from the world is not a juristic question.  Whether one has confidence and hope that it can be eliminated depends on philosophical, especially on philosophical-historical or metaphysical, convictions.”

Candidates for sovereignty include God (or his Earthly representatives), the Emperor, the Prince, or the people and/or those who identify with the people.  The question is always tied to a concrete situation:”Who is responsible for that which competence has not been anticipated?”  Or, who has unlimited power?

There are many historical accounts that deal with the idea of sovereignty, but nothing very clear or useful.  For example, Jean Bodin said that the Prince’s commitments to the law and the estates was founded on natural law, but those commitments dissolved in situations of “urgent necessity”.  Bodin thought that if the Prince had to check with the estates before acting in an emergency, then the Prince should be prepared to be overthrown, which he thought was absurd; it would make sovereignty a battle between two parties, a conflict rather than a decision.

When antagonism appears, everyone wants the public good.  Sovereignty lies in deciding that controversy; what constitutes public security, and when is it disturbed?  These questions are decided differently by governments beholden to military, commercial or radical concerns.  Every legal order is based on a decision, and every legal order contrasts norms and decisions.

If the measures taken during an exception could be circumscribed by mutual control, say by imposing a time limit, or by listing extraordinary powers, the question of sovereignty would be less important but not eliminated.  A jurisprudence concerned with everyday life has no interest in the concept of sovereignty; “Only the recognizable is its normal concern; everything else is a ‘disturbance.’” (12) Not every emergency is an exception.  What characterizes an exception is unlimited power—the suspension of the existing order.  The law recedes; the state remains. The exception is not anarchy; order in the juristic sense still prevails.

The two elements of the legal order are conceptually independent.  In a normal situation, the difference is minimal; in a state of exception, the normal situation is destroyed, but remains in a juristic frame, so it can still be considered by juristic theory.

It is a “distortion of the schematic disjunction” between sociology and jurisprudence if we say the exception is just sociology.  The exception cannot be subsumed.  Every norm requires an everyday frame of life to which it can be applied; “There exists no norm that is applicable to chaos.  For a legal order to make sense, a normal situation must exist, and he is sovereign who definitely decides whether this normal situation actually exists.” (13)  The exception cannot fit with Locke’s idea of the constitutional state. Liberal constitutionalism tries to regulate the exception; where does the law get that force?  How can a law spell out its own exception?

All of these reflections are important because the exception is more interesting than the rule.  The rule proves nothing; the exception proves everything. Schmitt quotes Kierkegaard’s Repetition at the end of the first chapter:

“In the exception the power of life breaks through the crust of a mechanism that has become torpid by repetition. . . . The exception explains the general and itself.  And if one wants to study the general correctly, one only needs to look about for a true exception.  It reveals everything more clearly than does the general.  Endless talk about the general becomes boring; there are exceptions.  If they cannot be explained, then the general also cannot be explained.  The difficulty is usually not noticed because the general is not thought about with passion but with a comfortable superficiality.  The exception, on the other hand, thinks the general with an intense passion.” (15)

  1. The Problem of Sovereignty

This chapter is a criticism of (basically Neo-Kantian) attempts to develop a formal jurisprudence, a normative concept of law that can eliminate the exception.

The concept of sovereignty is heavily tied to actual interests; its development was by political power struggles, “not by a dialectical heightening inherent in the characteristics of the concept.”  As Germany developed through 1871, the states were distinguished from the federal power by distinguishing between “state” and “sovereignty.”  They kept saying “Sovereignty is the highest, legally independent, underived power.”  This is not an expression of a reality but a formula.  It was pliable; depending on the situation, very useful or totally useless.  The highest power sounds like a quantity, but there is nothing in politics that works like a natural law.  Rousseau was right; force is a physical power—the robber’s gun is a symbol of power, which is clearly not the same thing as law.  The connection of actual power to legally highest power is the basic problem of the concept of sovereignty.  Any definition of sovereignty needs to include that.

The Neo-Kantian Hans Kelson attempted to make a clear distinction between sociological factors and pure legal logic; it was his version of the is/ought distinction.  The state is not alongside the legal order; the state is the legal order, conceived as a unity.  The unity is an “independent act of jurisprudential perception.”  Schmitt’s response is to ask, on what does the intellectual necessity or objectivity rest if not on a positive determination, i.e. a command?  Just talking about unity does not make it so.  There is no fixed unity between jurisprudence and empirical political reality.

Theories that attempt to create a purely formal idea of the law all agree that “personal elements must be eliminated from the concept of the state.  For them, the personal and the command elements belong together.” (29)  They all fail to recognize the necessity of a concrete, personal decision, which “contains a moment of indifference from the perspective of content,” because a decision cannot be fully traced to premises.  There is always something about a decision which is independent of argument; “This has nothing to do with the causal and psychological origins of such a decision, even though the abstract decision as such is also of significance, but with the determination of the legal value.” (30) Hence, the decision is independent of argumentative substantiation.  From the perspective of norms, “the decision emanates from nothingness. (31)  Locke said the law gives authority, but he did not say to whom it gives authority.  This is a serious omission, because “What matters for the reality of legal life is who decides.” (34)

  1. Political Theology

The third chapter begins with another striking formulation:

“All significant concepts of the modern theory of the state are secularized theological concepts not only because of their historical development—in which they were transferred from theology to the theory of the state, whereby, for example, the omnipotent God became the omnipotent lawgiver—but also because of their systematic structure, the recognition of which is necessary for a sociological consideration of these concepts.  The exception in jurisprudence is analogous to the miracle in theology.” (36)

Only this analogy helps us understand the development of political philosophy. The idea of the modern constitutional state won out at the same time as deism, the theology/metaphysics which got rid of miracles. It not only rejected miracles as violations of nature, but also the king’s direct intervention in a valid legal order.   The rationalism of the Enlightenment rejected the exception in every form.  Conservative authors, at the time, tried to support the sovereignty of the monarch with the aid of analogies from theology.

In both Schmitt’s time and our own, it is easy to slander someone with the charge of engaging in theology.  But if the charge is something more than an insult, we have to ask what the source of this tendency towards theology and metaphysics is.  Can they be explained historically? As an aftereffect of monarchical law, which identified God and King?  Or are they underpinned by systematic necessity?

Schmitt notes that some legal theorists introduce the state as a shortcut because they are dumb, just like some metaphysicians just drop God into an argument because they have no other way of explaining a problem.  But there is something more than this going on.  Hans Kelson, to his credit, has stressed the methodical relationship of theology and jurisprudence.  At the basis of his identification of the state and the normative legal order is a metaphysics that identifies the lawfulness of nature and normative lawfulness; “This pattern of thinking is characteristic of the natural sciences.  It is based on the rejection of all ‘arbitrariness,’ and attempts to banish from the realm of the human mind every exception.” (41)  Kelson uses an idea of causality that is natural-scientific; he thinks that Hume and Kant’s critique of substance can be transferred to the state.

However, he fails to see that the Scholastic idea of substance they were criticizing is entirely different from mathematical, natural-scientific thinking.  The distinction between legal theory and legal practice “cannot be grasped with concepts rooted in the natural sciences and yet is an essential element of legal argumentation.” (95/42)  When Kelson argues for democracy, he reveals his scientific character: “Democracy is the expression of a political relativism and a scientific orientation that are liberated from miracles and dogma and based on human understand and critical doubt.” (42)

To understand the sociology of sovereignty, we need to understand the sociology of legal concepts, but it is not a “spiritual” philosophy of history, as opposed to a materialist one.  The two kinds of philosophies of history – spiritual and material – do not refute each other.  Both spiritual and materialist explanations look for causal relations.  First they set up a contrast between two spheres, then reduce one to the other.  This has to result in a caricature.  Just like Engels saw the Calvinist idea of predestination as a reflection of capitalist competition, one could reduce the theory of relativity to currency relations in today’s world market.  This is not the sort of analysis Schmitt wants to do.

He also wants to distinguish his concerns from the sociological method, which tries to outline the typical group of people who arrive at particular ideological results.  In this sense, there is a sociology of juristic concepts.  For example, Max Weber points out how lawyers, civil servants, etc. are all attracted to particular sorts of ideas. To trace a conceptual result back to a sociological carrier is psychology; it is about determining the motives of a particular action.  it is a sociological problem, “but not a problem of the sociology of a concept.”  If we apply it to intellectual accomplishments, we end up doing things like attributing the details of Hegel’s absolute knowledge to his status as a university professor.

Schmitt prefers what he calls “the sociology of concepts”, which “aims to discover the basic, radically systematic structure and to compare this conceptual structure with the conceptually represented social structure of a certain epoch.” (45)  It is not about claiming that ideas are a reflection of social reality; rather, it tries to show identities between “two spiritual but at the same time substantial entities.” (45)  So for example, he is not trying to show that 17th century monarchs are “mirrors” of the Cartesian concept of God, but instead something like showing that the status of those monarchs corresponds “to the general state of consciousness that was characteristic of western Europeans at that time, and when the juristic construction of the historical-political reality can find a concept whose structure is in accord with the structure of metaphysical concepts.  Monarchy thus becomes as self-evidence in the consciousness of that period as democracy does in a later epoch. (46)

This kind of sociology of law concepts is a consistent thinking that moves into metaphysics and theology.  “The metaphysical image that a definite epoch forges of the world has the same structure as what the world immediately understands to be appropriate as a form of its political organization.  The determination of such an identity is the sociology of the concept of sovereignty.  It proves that in fact. . . metaphysics is the most intensive and the clearest expression of an epoch.” (46)

18th Century rationalism thought the obvious maxim was “Imitate the immutable decrees of the divinity.”  (Quoting Rousseau’s Political Economy).  The politicization of theological concepts, especially sovereignty, has been obvious to many.  Emile Boutmy said “Rousseau applies to the sovereign the idea that the philosophers hold of God: He may do anything that he wills but he may not will evil.”  In 17th century theories of state, the state holds a position analogous to God in Cartesian metaphysics.  Quoting Atger from 1906, “The prince develops all the inherent characteristics of the state by a sort of continual creation.  The prince is the Cartesian god transposed to the political world.”

There is both a psychological and phenomenological identity.  There is a continuous thread through the metaphysical, political, and sociological ideas that make the sovereign a personal creator.  Take Descartes’ Discourse on Method: he discovers that work created by several masters is not as good as work created by one; a sole God governs the world.  Quoting Descartes, “It is God who established these laws in nature just as a king establishes laws in his kingdom.”

The 17th and 18th centuries held up the sole sovereign, and that’s why Hobbes remained personalist about it.  “This he did despite his nominalism and natural-scientific approach and his reduction of the individual to the atom.  For him this was no anthropomorphism—from which he was truly free—but a methodical and systematic postulate of his juristic thinking.” (47)

More and more, scientific thinking has entered political ideas.  The validity of a law has become identified with the lawfulness of nature, which applies without exception.  The machine now runs by itself; the sovereign is like the absent deistic god. “The decisionist and personalistic element in the concept of sovereignty was thus lost.” (48) The will of the people becomes the good.  But the goodness of the people is not the same as the rightness of the commands of the personal sovereign.

In the conflict of interests and coalitions, the sovereign made the decision and created the unity of the state.  A people does not have this decisionist character; it is an organic unity.  “The theistic as well as the deistic concepts of God become thus intelligible for political metaphysics.” (102)  It is true, of course, that the aftereffects of the idea of God remained visible; in America, this appears as the idea that the voice of the people is the voice of God: “Tocqueville in his account of American democracy observed that in democratic thought the people hover above the entire political life of the state, just as God does above the world, as the cause and the end of all things, as the point from which everything emanates and to which everything returns.” (49)

In the 17th and 18th centuries, God was transcendent to the world, and the sovereign was transcendent with regard to the state.  Immanence was the watchword of the 19th century, such as the democratic thesis of the identity of the ruler and the ruled and the organic theory of the state as sovereignty and the legal order being identical.

Radicals have attacked the belief in God “as if it were the most fundamental expression of the belief in any authority and unity.” (50)  Schmitt offers a prediction: “The main line of development will undoubtedly unfold as follows: Conceptions of transcendence will no longer be credible to most educated people, who will settle for either a more or less clear immanence-pantheism or a positivist indifference toward any metaphysics.” (50) To the extent that it keeps God, it will be a sort of Hegelian God drawn into the world.

The 19th century history of the theory of the state has two characteristics: the elimination of theistic and transcendental ideas and a new version of legitimacy.  Neither patrimony or reverent attachment could survive.  The democratic replaced the monarchical.  Donoso Cortes, a Catholic philosopher of the state, said in 1848 that the epoch of royalism was over; no more kings. He thought there was only one possible solution: dictatorship.

His Nazism

He was controversial among Nazis, but protected by Hermann Goering.  He distanced himself from the Party in the late 30s, and was never charged with crimes by the Allies.  From 1938 and after the war, he referenced the Herman Melville novel Benito Cereno with regard to his choices in 1933.  The title character is the captain of slave ship taken over by slaves.  Most of the crew is killed, but Benito is forced to play the role of captain to not raise suspicion from other ships.  There is a prolonged encounter with an American ship; the American captain cannot imagine that slaves took over a ship, so he just thinks Benito is incompetent.  Eventually the slaves are discovered and killed.  In a 1938 letter to a friend, Schmitt signed himself as “Benito Cereno”.  An exchange from the novel ends with the American Captain saying:

“I think I understand you; you generalize, Don Benito; and mournfully enough. But the past is passed; why moralize upon it? Forget it. See, yon bright sun has forgotten it all, and the blue sea, and the blue sky; these have turned over new leaves.”

The American captain wants to know how Benito was taken in by the evil brewing under his nose.  Cereno says that if he had been more acute, he might have been killed.  Since “malign machinations and deceptions impose” themselves on everyone, he had no choice but to play an imposed role.  Political Theology’s preface by Tracy Strong says, “Benito Cereno is about, among other things, what being a sovereign or captain is, how to recognize one, and the mistakes that can be made when one doesn’t.” (x)

Walter Benjamin, Theses on the Philosophy of History

The tradition of the oppressed teaches us that the ‘state of emergency’ in which we live is not the exception but the rule. We must attain to a conception of history that is in keeping with this insight. Then we shall clearly realize that it is our task to bring about a real state of emergency, and this will improve our position in the struggle against Fascism. One reason why Fascism has a chance is that in the name of progress its opponents treat it as a historical norm. The current amazement that the things we are experiencing are ‘still’ possible in the twentieth century is not philosophical. This amazement is not the beginning of knowledge—unless it is the knowledge that the view of history which gives rise to it is untenable. (Thesis 8)

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