emergency and exception (kennedy)

8/9/2019 Emergency and Exception (Kennedy)

1/17

Emergency and ExceptionEmergency Politics: Paradox, Law, Democracy by Bonnie Honig; States of Emergency inLiberal Democracies by Nomi Claire Lazar; Insurgencies: Constituent Power and the ModernState by Antonio Negri; The End of Reciprocity: Terror, Torture and the Rule of Law byMark OsielReview by: Ellen Kennedy

Political Theory, Vol. 39, No. 4 (August 2011), pp. 535-550Published by: Sage Publications, Inc.Stable URL: http://www.jstor.org/stable/23036101 .

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2/17

Review

Essay

Emergency

and

Exception

Political

Theory

39(4) 535-550

© 201 I

SAGE Publications

Reprints

nd

permission: http://www.

sagepub.com/journalsPermissions.nav

http://ptx.sagepub.com

(DSAGE

Emergency

Politics:

Paradox, Law,

Democracy, by

Bonnie

Honig.

Princeton:

Princeton

University

Press,

2009. 197

pp.

$26.95

(hardcover).

States

of

Emergency

n Liberal

Democracies,

by

Nomi Claire Lazar.

Cambridge:

Cambridge University

Press,

2009. 197

pp.

$80.00

(hardcover).

Insurgencies:

Constituent

Power and the Modern

State,

by

Antonio

Negri.

Minneapolis:

University

of

Minnesota

Press,

1991.367

pp.

$30.00

(paperback).

The End

of

Reciprocity:Terror,Torture

nd

the Rule

of

Law,

by

Mark

Osiel.

Cambridge: Cambridge

University

Press,

2009.667

pp.

$45.00

(paperback).

Ellen

Kennedy,

eviewed

by:

Ellen

Kennedy, University of Pennsylvania.

DOI: 10.1

177/009059171 1406410

The last decade

has seen

a

proliferation

of books

and articles on

emergency

and

exception.

Most reacted

to the terrorist attacks of

9/11,

and to the

Patriot Act of

2001,

legislation

that

broadly enlarged

surveillance

by

the

Federal

government,

created new

powers

intended to

foil

money-laundering

by foreign

terrorists and their

domestic

partners,

revised

immigration

proce

dures,

and

expanded police powers

over

immigrants.1

The bill was hurried

through

Congress

in the emotional and

political

wake of the attacks and

quickly signed

into law

by

President

George

W.

Bush. Academic

legal opin

ion now

commonly regards

those

expanded powers

and

the real

possibility

of other attacks as

having

created a domestic and

international state of emer

gency.2

All save one of the books reviewed here

appeared

after

2001,

and

their authors

in

different

ways

each refer to the circumstances of an abnormal

politics,

or

emergency politics.

Political theorists who

have

taken

up

this

question

have often defined

it

in the

language

of Carl Schmitt's Political

Theology

(1922).

Much has been

made

of

its

theological

dimension,

most of it

erroneously conflating

emer

gency

and

exception.

Absent firsthand

knowledge

of context and associated

arguments in Die Diktatur (1921) and Constitutional Theory (1928), two

concepts,

sovereignty

and

dictatorship,

crucial to

understanding

the normal


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3/17

536

Political

heory 39(4)

and the

exceptional

have been

perniciously

confused. The distinction

between commissarial

and

sovereign dictatorship

as it concerns

liberal

democratic states means

that the constitution

in the actual

sense,

the funda

mental

political

decisions

over a

people's

form

of

existence,

obviously

cannot be set

aside

temporarily,

but

certainly

the

general

constitutional

norms established for their execution

can be

precisely

when it is

in

the

inter

est of the

preservation

of these

political

decisions. 3

Norms

typical

of bour

geois

freedom

(we

would call these civil

rights)

can be

suspended

because

they

do not constitute a

people politically.4

Political Theology is a destructive text. It opens the most radical perspec

tive on the state and its law

through

a

sociology

of

concepts beyond

the

immediate

practical

interests 5

of state law

in

1922.

Legal positivists,

led

by

Gerhard

Anschiitz,

sought

refuge

from the

political consequences

of the

German revolution

by emphasizing

the

duality

of state and law. The

constitution

may

have

changed,

said the most

prominent

authority

on the

Weimar

constitution,

but the law remains.

Taken out of its

postrevolutionary

context,

the

opening

sentence,

Sovereign

is he who decides on the state of

exception,

can mean almost

anything

and has been

read to

mean

many things except

its most

proximate

reference: the

people

to which constitutional

legitimacy

must refer after

1919,

but also the

people

as

sovereign agent

of a

revolutionary

moment—the

exceptional

moment—which Antonio

Negri captures

so

brilliantly

in

Insurgencies

as the constituent distinct from the constituted

power.

In

The

Crisis

of Parliamentary Democracy,

Schmitt

began

to

develop

a

conception

of democratic

power

and the

constitutive act

as

unexhausted

expressive

radicalness. 6

Negri

finds a distant but

strong affinity

between Hannah

Arendt and Schmitt on these matters.

The confusion

of

emergency

and

exception

in

current

political theory

comes

in

good part

from Political

Theology

because

emphasis

on the theo

logical

obscures

revolution

and

democracy

as sources for a critical

legal

theory.

The

original

title,

Sociology

of

the

concept

of

sovereignty

and

political theology,

clearly

defines its

place

within Max

Weber's orbit.7 Two

other texts of the same

period,

Roman Catholicism and Political Form and

The Crisis

of

Parliamentary Democracy,

take

up aspects

of

representation

and

presence,

and

each offers a road into the

sociology

of

the state.8

These,

and later the

Constitutional

Theory,

address the same

problem:

democratic

sovereignty.

In

constituted

states,

dictatorship

is a means of their

preserva

tion,

a

technique.

As an unconstituted

moment

of

political

vitality,

sover

eignty manifests itself as a decision for unity, as sovereign dictatorship.

Historically

these

dictatorships,

commissarial

and

sovereign,

have no

neces

sary

political-legal

form,

but can and

have been

republican,

princely,

and




4/17

Kennedy

537

popular.

The

constitutional world announced

by

the

American and French

revolutions,

those of 1848 and of 1917-1918 and all

the

peoples

democracies

since,

cannot

escape

the

epochal challenge

to transform the

people,

however

fleetingly,

as

sovereign.

Max Weber

certainly

understood that as the central

problem

of the new

European

constitutions,

especially

the Weimar constitution that he

helped

draft. Article 48 was the

product

of Weber's hand. Informed

by expectation

that the

party system

would be

fatally

weak,

it

drew on Weber's

typology

of

rational,

traditional,

and charismatic

legitimacy.

The

Reichpresident,

as the

only directlyelected national office,would exercise authoritybased unques

tionably

on the will of the whole

people. 9

Political

Theology

and the other

texts between 1921 and 1923

illustrate

Schmitt's

proximity

to Weber and

[are]

a

recognition

of the

sociological-religious

aspects necessary

to

any

discussion of

sovereignty. 10

The

concept

of

exception

(Ausnahme) belongs

to the circumstances of

a

specific

modern state

(the

Weimar

Republic)

whose

constitutional-legal

cri

sis was

objective (a

defeated

state,

torn

by

civil

war,

economically

unstable

and in

part occupied)

and

subjective (conflicted legitimacy).

Political

Theology

asserts the

unpredictable,

the

exceptional

to break the formulaic:

If [exceptions] cannot be explained, then the universal cannot be explained

either.

This

text

works a mischievous effect on

many,

so

enamored of

exception they

lose

sight

of its

object:

constitution of the

political

into

regu

larity.

Without the

larger

element and substantial

concerns as

developed

in

Schmitt's

work after

1922,

Political

Theology

accents the

immaterial ironi

cally.

It was written

against

such

political

romanticism

and the

project

is

completed by

the

pairing

of

political

and constitutional

in The

Concept

of

the Political

and Constitutional

Theory.

Without

those,

Political

Theology

and the

exceptional

become

incongruously

an

irony,

a seedbed for the

aesthetic,

for the

unreal,

the

unpolitical.

In States

of

Emergency

in Liberal

Democracies,

Nomi Claire

Lazar rec

ognizes

the

practical

consequences

of

collapsing emergency

into

exception

when

she focuses on the

theory

and

practice

of

emergency powers

in modern

rule-of-law states.

She avoids the

polemical

and dramatic

aspects

so

familiar

now

in

writing

about

exceptionality,

a

style

inherited from Schmitt's

own

tendency

to

flirt

with

danger

as Reinhard

Mehring puts

it.11 he

makes less

than she

might

have of a distinction

between the

political

and

legal parts

of

this constitution

elaborated

by

Schmitt

in Constitutional

Theory,

but

then

Lazar is not

writing

about Schmitt.12

She has

not

only

the

emergency

of

9/11

in mind but the wider practices of emergency government. By that simple

perspective,

she averts fallacious

suggestions

that the

American dilemma

is

unique.




5/17

538

Political

heory 39(4)

Lazar also

enlarges

the theoretical

compass

of

emergency

when she iden

tifies

it as

a

concrete

manifestation of the tensions

between order and

jus

tice,

between

enablement and constraint

of

power,

tensions that are

inherent

in

any

constitutional

regime. 13

She

rightly

criticizes the

norm/exception

framework as

simplifying

and static. A

long

list of

theorists

are

schmittian

despite

themselves

because,

while critical of

Schmitt,

they repeat

the

mis

take of

collapsing

emergency

into

exception

and the

suspension

of

rules

and

norms. Her

primary

aim is to

escape

from that

framework

in

its left and

right permutations. 14

Rather than a

norm/exception dichotomy,

Lazar

sees

a

continuum in the

rule

of law

during

an

emergency

and

in a

normally functioning

state,

a

shift

not a

sea

change

as

she

puts

it. The

goal

is to

normalize

emergencies

by

refusing

them the

status of

exceptional

events.

There

are

several advan

tages

to this

approach.

It

demystifies

a

discussion that

(largely

due to

Agamben's

influence15

and the

fashion for Schmitt

among

literary

critics)

has become

excessively

detached from

its

institutional

and

practical

con

cerns

with

prerogative

and

from the

revolutionary potential

of

the

people.

It

also

detaches the state

of

emergency

from its

practice

in a

specific

historical

moment,

the Weimar

Republic.

After

all,

there have

been states of

emer

gency that do not usher in dictatorships and states of emergency that were

successful in

dispersing

their own

causes whether

natural or

political.16

Lazar's

argument

for the essence

of

emergency

as

a

legal

measure,

com

mon

among

theorists

of

commissarial

dictatorship, depends

on a

normative

argument.

Emergencies

are

always

declared because

something

we

value is

threatened,

whether it

is our own

way

of

life,

our cultural

practices,

our

eco

nomic

well-being

or

even,

perhaps

most of all

our mortal

existence. Of

course

what is

valued

might,

hypothetically,

be

evil;

but

in

a

rule-of-law

state,

in a

constitutional liberal

democracy,

what we

value will

necessarily

be

something

for the

common

good.

In

fact,

the

common

good

of

a life

together

so

constituted will be

the

most

pressing

and

urgent

reason

for an

emergency.

In

that

state of

emergency,

the rules and

norm do

not

disappear,

although

they may

be

changed

somewhat—suspended,

limited—but this

change

will be

temporary

and for

the

sake of

something containing

all

those

values

from

which

this

way

of life has

come. To

liberals

who

say

that

emer

gencies

are bad

because

they

undermine civil

liberties

and

human

rights,

there is an

obvious

response:

the

purpose

of

emergency

declarations is

not to

undermine

those,

but

to

secure them

more

completely

by

restoring

the

order

in

which

they

are

embedded.

Lazar's

discussion of

derogations

is

excellent

on this aspect of the emergency dilemma. It is a paradox, but one that can be

solved

if

we

accept

that

we have a

second-order

obligation

to

preserve

the

state's

capacity

to

fulfill its

function. 17




6/17

Kennedy

539

The

weakness in her

argument

is

the

apparently

tidy

division

of first and

second order values

mentioned

above,

which becomes a

typology

of

repub

lican and decisionist

exceptionalism.

Hobbes and Schmitt

illustrate the

latter,

Machiavelli and Rousseau the former. The

relatively

harmless

descriptions

of

Realpolitik

in Machiavelli or

Rousseau's

forcing

the citizen to be free

through

the Social Contract conceal the

force within

constituting power,

but

they

are not the real

subject

here. The

purpose

instead is to demonstrate how

quotidian political

ethics

functions within the

political

order whereas exis

tentialist

ethics

invoke

different and

possibly higher

order criteria to

create

or preserve that order. 18

Republican

exceptionalists

differfrom decisionist

exceptionalists

because

men of

great public

virtue found

republics

with a

transformative ethical

force. 19

Resort

to the

economy

of

violence here is to save the

republic,

not

(as

she notes was the case for the Bush

administration)

to obliterate the

existential threat. 20 Decisionists

acknowledge

no Great Good served

by

the state.

Exceptionalism

excludes even

everyday

ethics. It is a

position

of

having

the final

say.

Lazar

explains

this difference between

emergency

and

exception

as

grammatical.

The

state

of

exception

is

the

subject

whereas

the state of

emergency

is the

predicate.

This formal distinction detracts

from her otherwise astute understanding of emergencies. Despite reference

to the German

legal

terms

Not

(emergency)

and Ausnahmezustand

(excep

tion),

she

ignores

the

larger

set of related

concepts

in

continental law.

An

account of

why

Europe

needed so

many

varieties of

emergency

law

might

increase the

sophistication

of American discussions.

This book intends

a defense of liberal democratic states

against contempt

for the

capacity

of

open

societies,

with diffuse

power

structures,

lacking

a

strong

normative

basis to defend their

way

of life when confronted

by

fun

damental enemies. Schmitt saw Weimar

in

1932

thus,

but

many

conserva

tives and radicals

hold that view of liberal

democracy.

When Lazar

distinguishes

between

first-order and

secondary

values,

she reserves

all

first-order values

exclusively

to liberalism. Just

having

a first-order commit

ment,

whatever its

content,

is not

enough.

The values defended

through

emergency

rule

of law must be liberal

values because

only they incorporate

the Great Good for

which state is authorized

to act. The normative

and

conceptual

framework she would

put

in

place

of Schmitt's

norm/exception

dichotomy

succeeds

through

tacit redefinition:

Emergency powers

take on

the moral character

of the end

they

serve. 21

Despite

that,

for those with

a

general

interest

n

the

history

of ideas about

emergency,

dictatorship

and the

debate since 9/11 much in this book repays study.

Lazar

notes in States

of Emergency

in Liberal

Democracies that

rights

make little sense without states

and

that the

scope

of

liberal values is not




7/17

540 Political

heory 39(4)

coextensive with

political

ethics in

general.

The realization of

any

ethical

norms

requires

order. Liberals make

deep

moral claims about the

good

served

by

and

through liberty.

The distinction between

liberty

and license

recognizes

that the latter can be as

great

a threat to

liberty rightly

understood

as a

great tyranny.

Chief

among

the

goods

of liberal

government

is

commit

ment to human

dignity

as articulated in the German Basic Law of 1949

and declared to be

inviolable. Reaction to the

war and

genocides

of 1939

1945

and to totalitarian

dictatorship,

effected

specification

of crimes

against

humanity

in

the law of nations and efforts to constrain war

through

law—

to

put

the evil

genie

back into his box in this

age

of

technological

and

impersonal

warfare—are

directly

related to the substance of

emergency

and

exception.

Mark Osiel's The End

of Reciprocity

is about the

politics

of humanitarian

law,

and

conveys

the moral and intellectual confusion

produced by

America's

policies

in

the Middle

East,

specifically

the tormented

public

debate on tor

ture.

Constitutional

questions

such

as those above are never

explicitly

for

mulated in The End

of

Reciprocity,

but Osiel

nevertheless

provides many

real

references to consider

when we

ponder

the

politics

of

emergency,

expanded

executive

power

and the

post-9/11 security

state. These are not

transient and they have the potential to change our constitutional system.

The End

of

Reciprocity

is not a book of

political theory despite

containing

a

lengthy

discussion of fairness in

terrorist war from the

perspective

of

Rawls and

Kant,

a

twice-removed account

of Waldron on Dworkin on

the

legality

and

morality

of

torture as

reciprocal response,

and

many

other refer

ences to

great

and

merely

well-known texts. The

subject

here is not a

par

ticular

type

of

constitution,

as it is

for Nomi Claire Lazar or

America as a

liberal

democracy,

as it is for Bonnie

Honig.

Osiel

writes about the law of

war in

circumstances of

jihaidist

terror

against

sovereign

states,

and

argues

against

the

capacity

of

legality

and

liberalism

to

comprehend,

much

less

master, the

challenges

facing

the United States

today.

His

judgment (ren

dered

in

600+

pages

of which

nearly

half

are

endnotes)

is that law

as

process

can neither

formulate

responses

nor

conceptualize

the

facts of our circum

stances.

Law as

rules and

procedures

will

be

doubly inadequate.

States

con

stituted in

terms of

rules and

procedures

will

be outfoxed

by

innovative

informal

organizations

committed

to their

destruction,

or at a

minimum their

disruption.

Moreover,

legal

norms fail

to

generate morally

acceptable

responses.

The

grounds

of

good,

or

even

merely right

conduct,

Osiel

argues,

must be

sought

beyond

the confines of

modern

democratic rule-of-law

states

in

older

commitments, crucially the martial honor that effects a sort of

'internal

morality.'

The

military

code

internalizes—through

discipline

and




8/17


9/17

542 Political

heory 39(4)

benefits. When the

enemy

is a

jihadist

terror

organization,

Osiel

argues,

we

cannot afford

reciprocity.

Those

suspected

of

planning

terrorist

attacks,

or

who have

knowledge

of

such

plans,

have

commonly

been the

target

of

intense searches across national

borders,

and

when detained

they

have been

subject

to

torture

in

the

hope

that useful

intelligence

will

prevent

an

attack

on the United States and its

allies. Osiel's

questions

are the obvious ones.

Assuming

that

threats continue to issue from

jihadists

groups,

can

such men

be detained

indefinitely?

Can

they

be tortured or killed at

any

time

regardless

of

proximity

to combat?

The Hague and Geneva Conventions have not succeeded in eliminating

war

and war

crimes,

which

Osiel

acknowledges,

but his discussion of reci

procity

does

clarify

this

aspect

of the current wars.

Although legally

embed

ded,

reciprocity

cannot

support

a

policy

of restraint n

fights

with al

Qaeda

or similar militant

ihadists.

Jihadists do not

act

in

accord with humanitarian

law,

and

a

response

in kind

would be fair and

reciprocal.

Realist theories

of international

relations

pragmatically justify reciprocity

because

only

threats of

retaliation dissuade the

enemy.

Insistence on like

duties when one

party

renounces or

ignores

humanitarian

constraints

will

only

encourage

the

moral hazard

attendant on such

actions.

In

this

paradigm,

there is no substi

tute for reprisal. For Osiel, reciprocity is at an end because

reciprocal

restraint

only

occurs when

fighting

takes

place

between certain

kinds of

states and

military organizations,

adversaries of a sort not

faced

in

the con

flicts with

al

Qaeda

or even with Iran

and North Korea. 25

Modern

concepts

of the law of war

discard the

question

of

ustice

in

wag

ing

war

posed by Aquinas.

Osiel contends

that

humanitarianism is rooted in

ancient

notions of

magnanimity,

in what

Aristotle called

liberality

and

gen

erosity

of

treatment and what

Aquinas,

his

intellectual

heir,

treated as the

virtue of

temperance.

Natural

lawyers

subsumed these

virtues under a

larger

stoic

vision of

world law

and

thought

that

personal

virtue

realized natural

law.

Early

modern texts of international law turn

toward

conceiving

states in

individualistic

terms,

a

necessary step

in

formulating

state

power

in the lan

guage

of

rights

and

duties.26

The

unintended merit

of The End

of

Reciprocity

is to

demonstrate how

anachronistic the

language

of

virtue is

today.

It has been

replaced

by

the mod

ern idiom

of

rights:

In the

contemporary

debate

over

Guantanamo,

for

instance,

the

only person

to

have

explicitly

invoked

this

historically

Western

and

'Christian'

virtue in

defending

the

more

temperate

treatment of

jihadist

detainees,

to

udge

from a

quick

web

search,

is an isolated

Muslim in

India. 27

The question is not so much whether one language or the other (virtue or

rights)

is

morally

superior

or even

more

effective but

whether,

as the

author

notes

throughout

this

book,

the war

against

terror can

ever be a

fair

fight.




10/17

Kennedy

543

The weak

point

in

contemporary

international

jurisprudence

remains the

relative

absence of institutions to

adjudicate

claims of

rights

violation on

behalf of individuals and more

importantly

for us

now, whether,

even

given

such

institutions,

they

can make

equitable

decisions that will

be

effectively

enforced.

That

problem

arose before the

twentieth-century

world wars in

partisan

warfare,

and in

religious

warfare. Combatants

in

the

past century

fought

in wars declared

by

nation-states,

yet

those wars

recognized

no clear

distinction between

peace

and

war,

between combatants and civilians or

between the honorable

enemy

and a common criminal.28 The

slippage

between lawful

resort to force

and

total war became visible

in

the civilian

bombardments of the

twentieth-century

world wars. The dictum of

Aquinas

that there must be some chance of success for a war to be

just began

to lose

meaning

in

1914. After the atomic bombs

of

1945,

victory

could

only

mean

strategic, technological,

not

human,

success.

If war

must

be

just

for its conduct to be

virtuous,

has

weapons

technology

(nuclear

and

biochemical)

made all wars

unjust by

definition

and therefore

all conduct of war

depraved?

That

is

the first-order moral

problem

of war

today.

It

is

not the

question

of

just

war that

produces

Osiel's

problem

of

reciprocity,

but the modern law of war that relies on

legal procedure

and

the logic of concepts, not virtue and justice. The aspect of partisan wars,

especially jihadist

war,

only appears

new

against

the

background

of

eighteenth-century

cabinet wars and

twentieth-century

state-centric

war.

The

problem

can be bounded

constructively.

If Jus belli

belongs

to

states,

then

authority

in a

specific

case to

determine the

enemy

and to

fight

him

follows from that.29

Two

limiting

criteria also follow from the

concept

of the

modern state:

the

people

must be

politically

unified,

and it must be commit

ted to

fight

for

its existence or

independence.

Determination of an existential

threat and

the desire for

liberty

is

a

sovereign

decision. Others cannot

dictate

the cause. Existence

as a

political entity,

the existence of mortal

beings

within a territorialstate that is

part

of the criterion of the

political

as a friend/

enemy

distinction,30

is to

jus

belli

what

self-preservation

is to

natural law

in

Hobbes: a

right

that cannot be

abrogated,

renounced,

or transferred.

With

this,

we

arrive at the set of

problems

raised

in

Bonnie

Honig's

Emergency

Politics:

Paradox, Law,

Democracy, essays

all

previously pub

lished

elsewhere.31

Such collections

are easier to

put together

than to

pull

together,

and that is

the case

in

this instance.

All are more or less

concerned

with

paradox :

something

the Greeks

understood as a

thing

contrary

o

expec

tation,

and which we

use

colloquially

to mean

apparent

self-contradiction.

For

Honig paradox should have great, even supreme, importance in determining

what

matters in

political

theory.

She seems

wary

of

entrapment by

the famil

iar and

the book

opens saying,

If we ask what

rules,

procedures,

norms,

or




11/17

544

Political

Theory

39(4)

considerations

ought

to

guide

or

constrain the decision to invoke

emergency,

we

may

think

that

we

constrain

or

limit

sovereignty—and

we

may

indeed do

so,

when our

arguments

find favor

with

judges

or

administrators—but

we

also

adopt

a kind of

sovereign perspective

and

enter into the decision. 32

Entering

into the

decision is what I

always thought

democratic

politics

is all

about,

but

apparently

not. There is

a

difference,

so

Honig

maintains,

between

top-down

sovereignty

and

something

she

calls,

citing

William

Connolly,

accidental

sovereignty.

This is

democracy

as

sovereign,

not

deliberative

but

aesthetic:

I

seek out

agonistic

contention as a

generative

resource of

politics

but

at

the

same time,

she

wants to emerge from the agony with

truth.

The

influence of

Agamben

is

apparent,

and

not for the better

here. In the

language

of

performance,

something

crucial about

agony, especially

when

experienced

by

a

whole

people,

has

been lost or

forgotten.

Perhaps

it

cannot

be

taken into

consideration

in

such

an

account,

so

focused

as this

one

on the

subjective,

but we are

all much the

worse for that.

Honig

wants

to write

radically,

she wants to

upset

the

settled,

and she ends

(paradoxically)

beatify

ing

the

somber

elements of the

political,

those that

make us

pay

attention to

it. Marx

and

Weber—neither one an

aesthete—saw the

seriousness

of the

political clearly and wrote passionately about it. Weber understood that to

take

up

politics

is a

calling fraught

with

danger

should we

fail,

and

Marx

knew

intimately

the

suffering

of the

ordinary

workman's

day.

Variously

in

Emergency

Politics a

leveling

takes

place

that

is

out

of

place.

In

chapter

2,

for

example,

considerable

attention is

given

to the

Slow Food

movement,

an

innovative trend

not reliant on

rights-based

arguments

that

dominate lib

eral

political

theory.

Such

phenomena

are

grassroots

democracy;

slow food

ies are

not

just epicureans,

they

assert

their

preferences

as

political

resistance.

Think

global.

Eat

local.

Any

one of

the

myriad

social

movements

today,

including

Slow

Food,

might acquire

and

exercise

political

power—that

is the

meaning, ultimately,

of Schmitt's

concept

of the

political.

Once

separated

from

the state

the

political

could

have

any

content.

As the

Dadaists under

stood,

it could

actually

have no

content

whatsoever.

Like

Lazar,

Honig

is

critical

of

Schmitt and

of the

exception,

but Lazar

focuses

realistically

on

questions

that

Honig

makes ever

more

impenetrable.

Each

of the books

discussed thus

far have

emergency

and

exception

as

their

subject.

Lazar

examines the

rule

of law

in

emergencies;

Osiel

considers

the

fate

of

humanitarian

rule of law

in

irregular

war;

Honig

constructs and

reconsiders the

paradoxical

shape

of

law and

emergency.

All

consider

emer

gency and exception in relation to notions of what law is and how, exactly,

it

rules.

Their

reception

of

Schmitt,

combined with

the

large

(and

growing)




12/17

Kennedy

545

number of

publications

concerned

with him and his

ideas,

the

profusion

of

English

translations of Schmitt now

available and

the visible

influence of

European applications

of Schmitt

(notably

by Agamben)

seems for now to

be

shifting

discourse

away

from

paradigms

such as contractualism and delib

erative

democracy,

which

long

defined the core of

political theory.

The influence of

radical,

nonliberal

approaches

to

emergency

and

excep

tion

and,

more

profoundly,

the crisis of

democracy

there entailed can be seen

in Antonio

Negri's Insurgences:

Constituent

Power & the Modem State.33

This

brilliant

study appeared

in Italian a decade

before the onset of America's

war on terror. Nothing published since, including the other books reviewed

here,

approaches

Negri's

fundamental

understanding

of the

causes,

intellec

tual

sources,

and

perennial

character of

power,

law,

and the

people.

This is

a

great

book of

political theory,

n no small

part

because

it under

stands our

present

misfortune

so

profoundly.

It is at once a book of

political

philosophy

and a

history

of

thinking

about its

perennial

core:

the

ustification

of

governments.

Negri efficiently

clarifies the

question

because he is

not

content to

declare

emergency

a

paradox

and leave

theory

at

that,

but

pushes

us

to

acknowledge

the

contradiction as

real.

Thorough

discussion of

Negri's

argument

would

require

more

than a

review,

so

I

shall confine

these

comments to aspects of it that are most relevant to emergency and exception

as these have been

and are now

being

discussed

among political

theorists

and

jurists.

One must

begin

with the

concept

of

sovereignty

as a

legal

idea.

It

belongs

to a

specific

discourse.

As

such,

we should

recognize

the

necessary gap

that

opens

between

sovereignty

and

its

referent,

between

res

factae

and res

fictae.

In the law

of the

state,

as

in criminal or civil

law,

a fiction

synchronizes

the

act and

its name in law.

Early

modern

law

accepted

the

Roman

trinity

of

persons,

things

and actions

(from

the

Institutes and the

Digest)

as

the mat

ter of

law and these

informed social

and

political thought

in the west for

centuries.34 So

long

as the

sovereign

of state

theory

remained an

identifiable

person—this

is

the

point

of

Bodin's

empiricism—this

theory

retained

its

coherence.

The

revolutionary

moments

of

eighteenth-century

America

and

France define the

terms of

the crisis

in state

theory

as a crisis of

sovereignty.

Negri

rightly

defines its source

in the constituent

power

of

the

people

and

brilliantly

unravels

the

incapacity

of

legal

theory

to master this

new

reality

in its own

terms.

Many

of the

jurists

Negri

discussed

struggled

with the

impossible

contradiction

of

popular

sovereignty,

and a

great

deal of

non

sense was

written

in

glorification

of the

state

during

the

period

of liberal

nationalism in Europe.35 Elements of what seem to Honig, Lazar, and Osiel

paradoxical

are not

apparent,

but real

contradictions,

of the essence

because




13/17

546 Political

heory 39(4)

constituent

power

is not identical to constituted

power. Negri's

discussion of

how

legal theory

tried to

incorporate

constituent

power

into the

juridical

apparatus

is

important

because the terms set

by

Jellinek

(transcendent),

Kelsen and Rawls

(immanent),

and

Lassalle, Heller,

and Smend

(integrative)

continue to influence how

we

think

about these matters.

When

Negri

asks if constitutional

history

can

be

a

natural

history,

it

changes

the terms of debate.36 What or who is the natural

subject

of such

a

history?

Or in

Negri's

terms,

What does constituent

power

mean if

its

essence

cannot be reduced to constituted

power

but

must, rather,

be

grasped

in its originary productivity? It means what it meant for Aristotle in the

substance of our

being,

in

potency

as the

primary

site of

power

that can be

or not be. 37 Constituent

power

is

an

essential

aspect

of man's

being

and

Negri

considers its

appearance

in several

(for

him)

definitive cases. In this

account constituted

power

is

empty,

constituent

power

is constant

activity

of resistance and

organization,

rebellion and

political

innovation that

arises

with and

against

the constituted

order. 38 It will come as

no

surprise

to those

who know

Negri's

earlier

work,

that this

is

revolutionary power,

and

no

surprise

that it

appears

most

clearly

in the

Marxist formulation:

political

liberation

and economic

emancipation

are

one for man as

species being,

they

are the all-expansive creativity of living labor. 39 But it may surprise some

to

see,

when he

refers to the

necessary

metaphysics

of

Marxism,

how

close

Negri

comes to a

Bergsonian

philosophy

of the natural

history

of constitu

tions. In

Bergson's

Creative

Evolution,

the vital force

(elan

vital)

ultimately

appears

as

spirit,

but not after a

long

march

through

the

biological

and man's

existence

in

the world

as one of

labor.

Negri

explicitly rejects

the

affinity,

but

bergsonisme

was

the

metaphysics

of constituent

power

as life in

time and

clear

to see in the vital

movements,

political

and

aesthetic,

of

Europe

before

the Great

War,

in

syndicalism

and

fascism.

What

does

political

vitality

tell us

about

emergency

and

exception,

state

and

sovereignty today?

First,

the

legal

distinction

between them

slips

in

real

ity.

Emergency,

depending

on its

intensity,

an be

the

precursor

of

exception.

What

begins

as

exercise of

legal powers

can

end in the

chaos of a

world

without

rules, norms,

and

procedures.

Secondly,

it

tells us that

sovereignty

is

more than

executive

power

and

certainly

more than a

designated

dictator.

The

sovereign

of

Schmitt's

(and

the

Roman

concept of)

dictatorship

refers

to a

potential

that

may appear

as

constituent

power.

To

conflate

Caesarism

with

sovereignty per

se is a

distortion.40

State and

sovereignty,

emergency

and

exception

are

concepts

that

begin

with

the

normal and

constituted. If it

is true that the exception is more interesting than the norm, it is no less true

that

exception depends

upon

norms. There

is no

exception

from

itself. It is




14/17

Kennedy

547

also

true,

as the books reviewed here

illustrate,

that the norm

depends

ana

logically

on the

exception.

If the constituted

shapes

the mortal

life,

making

it what it

is

in

time and

place,

then

it

does so within the

ever-present dynamic

of

man's

potential

for

destruction

and

creation,

the

possibility

of

enmity

and

friendship

from which life itself

ultimately

takes

meaning.

We

live,

as

the

Chinese

say,

in

interesting

times. The sudden events of

9/11 in fantastic revolt

against

the

principal symbols

of American

might

are

surreal

in their

ordinary technique

of airline schedules and a

handyman's

tool. In that

emergency, rights

were

derogated,

the schedules

upset,

life sud

denly

abnormal.

The

pattern

is not unfamiliar. Mobilization for war

in

the

twentieth

century suspended many

liberal

individual

rights, governments

dictated

rationing

and

conscription—legally

but not

normally. Nothing

in

these events

or in the

response

to them

presents

us

with an

exception

in

Schmitt's

terms.

The arena of American

engagement

abroad was determined

by

the

attack,

but not

its method of

response.

Is there

an international state of

emergency?

Or are the vital

movements—jihadist

and other—a

sign

of

something

else? Human

rights

law and the rule of law seek to

tame both

constituted and constituent

power.

In the

first,

sovereign

state

power,

Antonio Negri sees the violent capacity of instrumental rationality as only

the modern state can wield.

The second remains as

amorphous today

as

ever. To both

the state

(constituted power)

and the other

(constitutive

power)

this

applies:

there are

two

ways

of

contending:

one

by using

laws,

the

other,

with

force. 41

And

because,

Machiavelli

continues,

law is often

ineffective,

constituted and constituent

powers

will resort

to the other. Of

the recourses to

law,

it

is

always

weakest

beyond

state boundaries. Of

gov

ernance

in matters of

war,

it is most

truly

said that

justice

is denied

because

it will

always

be

delayed.

Describing

America's

foreign

wars and its

security/surveillance

state

as

an international state

of

emergency

mistakes their

defining

aspects.

The

conflict

now is between

a

power

constituted and

an

insurgent

con

stituent

power,

locally specific

but

globally

perceptible.

The

exception

is

not

only

a dictatorial

possibility;

it is also a

revolutionary

moment.

The

movements

of our times

are in revolt

against

the modern

state

in

every

aspect—political,

technical, economic,

and moral. Their

vitality

has

pro

voked

a domestic state

of

emergency

that

might

in future be

described as

constitutional

dictatorship.

But

the

vitality

of resistance

to

the west and

the liberal-democratic

constitutional

state

may

also

provoke

here

what

we see in our enemies abroad, the destructive and creative possibility of

constituent

power.




15/17

548

Political

heory

39(4)

Notes

1.

Uniting

and

Strengthening

America

by Providing Appropriate

Tools

Required

to

Intercept

and

Obstruct

Terrorism Act of 2001.

2. Bruce

Ackerman,

The

Emergency

Constitution,

Yale Law Journal 113

(2004):

1029-91;

Kim Lane

Scheppele,

Law in a Time of

Emergency:

States of

Excep

tion and the

Temptations

of

9/11,

University of Pennsylvania

Journal

of

Consti

tutional Law 65

(2004):

1001-83.

3. Carl

Schmitt,

Constitutional

Theory,

trans. Seitzer

(Durham:

Duke

University

Press, 2008),

156.

4. In

American or

English

articulation,

such

rights

concern

property

and

the indi

vidual

(or

individuality

such as we find in

Mill,

On

Liberty).

Continental

tra

ditions based on Roman law are much

wider,

and German constitutions contain

rights

and duties

pertaining

to associations. Polities

may

and do discriminate

among

various claims to

rights,

accepting

and

rejecting

them,

but these

rights

do

not

constitute

the

political entity

as

such

even when

they may

have first-order

preference.

Rights

are instead the

object

of

political organization

and

action,

something

to be

recognized

or enforced

in

one state while

enjoying

no

legal

recognition

in another.

5. Carl Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty,

transl.

George

Schwab,

(Cambridge:

MIT,

1985),,

45.

6. Antonio

Negri,

Insurgencies:

Constituent Power and the Modern

State,

trans.

Maurizia

Boscagli

(Minneapolis: University

of Minnesota

Press,

1991),

20;

Antonio

Negri,

II

potere

constituente:

saggio

sulle alternative del moderno

(Milan:

SugarCo,

1992).

7. Carl

Schmitt,

Soziologie

des

souveranitatsbegriff

und

politische

Theologie,

Errinerungsgabe fur

Max

Weber,

ed. M.

Palyi

(Munich:

Duncker &

Humblot,

1923).

It

contained

only

the first three

chapters

of the

later book and was the

first of several

articles

in

the

section,

Structural

problems

of the

modern state.

Other

contributors were

Thoma, Brinkman, Lowenstein,

and Landauer.

8. Carl

Schmitt,

Roman

Catholicism and Political Form

(1923);

Carl

Schmitt,

The Crisis of

Parliamentary

Democracy,

in Bonner

Festschrift fur

Ernst Zitel

mann

(1923),

and

later

in

book form

(1926).

9. Max

Weber,

The

President of the

Reich,

Political

Writings (Cambridge:

Cam

bridge

University

Press,

1994),

304-8.

10. Duncan

Kelly,

The State

of

the

Political

(New

York: Oxford

University

Press,

2003),

183.

Schmitt was a member of

Weber's seminar in Munich

during

1919

1920 while

posted

to the

judicial

staff

there,

specifically assigned

to the

legal

problems arising directly from civil regulation during the war.




16/17

Kennedy

549

11.

Mehring,

Pathetisches

Denken:

Carl Schmitts

Denkweg

am

Leitfaden Hegels:

Katholisches

Grundstellung

und

antimarxistische

Hegelstrategie

(Berlin:

Duncker &

Humbolt,

1988).

12. Carl

Schmitt,

Constitutional

Theory,

where the rule of law

(Rechtsstaat)

and

political

elements of

the

modern

constitution are

distinguished.

13.

Nomi Claire

Lazar,

States

of Emergency

in

Liberal

Democracies

(Cambridge:

Cambridge

University

Press,

2009),

2.

14.

Lazar,

States

of Emergency,

4.

15.

Giorgio Agamben,

State

of Exception (Chicago: University

of

Chicago

Press,

2005).

16.

See,

e.g.,

Clinton

Rossiter,

Constitutional

Dictatorship (Princeton:

Princeton

University

Press,

1948),

in

which

the United

States,

France,

and Great Britain

all

have

been

dictatorships

for

periods

of time. The set could be

much

enlarged

were someone to undertake a similar

study today.

17.

Lazar,

States

of Emergency,

81.

18.

Lazar,

States

of Emergency,

23.

19.

Lazar,

States

of Emergency,

34.

20.

Quoting

Scheppele,

Law in a Time

of Emergency

(Lazar,

States

of Emergency,

35

[note 44]).

21. Lazar, States of Emergency, 136.

22.

Mark

Osiel,

The End

of

Reciprocity:

Terror, Torture,

and

the Law

of

War

(Cam

bridge: Cambridge University

Press,

2009)

331

(quoting

Fuller,

The

Morality of

Law

[1964]

and Sharon

Krause,

Liberalism

With Honor

[2002]).

23.

Osiel,

The End

of Reciprocity,

1.

24. Carl

Schmitt,

Theorie des Partisanen:

Zwischenbemerkung

zu

Begriff

des

Poli

tischen

(Berlin:

Duncker &

Humblot, 1973),

18-19.

25.

Osiel,

The End

of Reciprocity,

8-9.

26. See Richard

Tuck,

The

Rights

of

War and

Peace

(Oxford:

Oxford

University

Press,

1999),

on

Hugo

Grotius.

27.

Osiel,

The End

of Reciprocity,

316,

and endnote

119,

612.

28. Carl

Schmitt,

Theorie des

Partisanen:

Zwischenbemerkung

zum

Begriff

des

Politischen,

2nd ed.

(Berlin:

Duncker

&

Humblot,

1975),

16-17.

29. Carl

Schmitt,

Der

Begriff

des Politischen

(Berlin:

Duncker

&

Humblot,

1963),

45.

30.

Schmitt,

Der

Begriff

des

Politischen,

27.

31.

Bonnie

Honig,

Emergency

Politics:

Paradox,

Law,

Democracy

(Princeton:

Princeton

University

Press,

2009).

The articles

were

published

between 2005

and 2008.

32. Honig, Emergency Politics, 1.




17/17

550

Political

heory 39(4)

33. Antonio

Negri,

Insurgencies.

Constituent

Power

and the Modern State

(Min

neapolis: University

of Minnesota

Press,

1991).

34. D. R.

Kelley,

Law,

in The

Cambridge History of

Political

Thought

1450-1700,

ed. J.

H. Burns & M Goldie

(Cambridge:

Cambridge University

Press,

1991),

66-94.

3 5. Constituent

power

is

an

imperative

act of

nation,

rising

from nowhere

and

orga

nizing

the

hierarchy

of

powers.

Emile

Boutmy,

Studies in Constitutional

Law:

France,

England,

the United

States

(1891),

250;

quoted

Negri, Insurgencies,

2-3.

36. This was Max Weber's question in the writings on Russia and on Germany

before

1919;

it

was

also Carl Schmitt's

question

in Political

Theology

in which

the contradiction between constituent

and constituted

power

manifests itself

in

an

unsuccessful

attempt

to

bring

constituent

power

back into the

constituted,

to

bring,

that

is,

the Aushnahme

into Staat. This

project occupied

him

throughout

the 1920s in

conceptual

stages: democracy

vs.

liberalism

(The

Crisis

of

Parlia

mentary Democracy)',

friend vs.

enemy

(The

Concept of

the

Political)',

the mod

ern constitution

(Constitutional Theory)',

and a series of

publications addressing

aspects

of constitutional contradiction

(The

Defender of

the

Constitution,

Legal

ity

&

Legitimacy

and

others).

37.

Negri,

Insurgencies, 23. The reference is to Aristotle's Metaphysics.

38. Michael

Hardt,

Foreword: Three

Keys

to

Understanding

Constituent

Power,

Insurgencies,

viii.

39.

Negri, Insurgences,

326.

40. John

Yoo,

The Powers

of

War & Peace: The Constitution and

Foreign Affairs

after

9/11

(Chicago: University

of

Chicago

Press,

2005).

41.

Machiavelli,

The Prince

(Cambridge: Cambridge

University

Press,

1988),

61.

About

the Author

Ellen Kennedy is a professor of political science at The University of Pennsylvania.

emergency and exception (kennedy)

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