TELOSscope: The Telos Press Blog

The Exception and the Rule: Fictive, Real, Critical

This text was presented in January at the 2010 Telos Conference, “From Lifeworld to Biopolitics: Empire in the Age of Obama.”

Walter Benjamin’s famous statement, in the eighth of his “Theses on the Philosophy of History” (1940), “the state of exception in which we live is not the exception but the rule,” has become as normalized as its proposition asserts. The phrases turning on the elements “the exception” and “the rule,” have become, in Michael Marder’s terms, matters of “metonymic abuse of modernity.” It plays itself out in the debates in constitutional law and political theory in the 1920s and 1930s.

What interests me here is the longevity of a construction that explicitly recalls and relies on the famous dictum with which Schmitt opens Political Theology (1922), “Sovereign is he who decides on the state of exception,” even as Schmitt’s genealogy of sovereignty and theorizations of totalitarianism would contradict much of its present day elaborations. In the latter-day revisions, sovereignty and state power appear as forces violently separating human life from its potentialities, to the point of exposing it to death. What has been excepted by the force of the exclusive inclusion of sovereignty, has become a matter of rule, and of the rule. For this notion, Benjamin’s eighth thesis is adduced as warrant.

Agamben inflects Schmitt’s (in)famous dictum biopolitically, to posit an integral relationship between sovereignty and bare life. The power to make live and let die relies on two elements closely tied up with the definition of sovereignty: the decision and the exception. Agamben investigates the exception in contemporary spaces of systematic lawlessness. He sees the permanency of the state of exception taking hold in the states of siege and exception ever since World War I, and particularly following in the wake of Article 48(2) of the Weimar Constitution. The provisions for a state of exception, moving from wartime measures to deal with internal disorder to political measures extending into the civil sphere, have become dominant techniques of governance. Yet it turns out that Agamben can arrive at this construction only through a reading in several aspects diametrically opposed to Schmitt’s genealogy of sovereignty. The concept of sovereignty, and the decision on the state of exception are not, for Schmitt, ipso facto complicit with encroaching totalitarianism, but potential barriers against it.

What Schmitt calls “sovereign” clearly refers back to his definition of sovereign dictatorship in Die Diktatur (1921), concerning the case in which the entire constitutional order is in question, rather than simply the arrogation of extralegal powers enacted as specific draconian measures by a commissarial dictator. Without being able to rely on the existing constitution, it entails convening a constitutive body, upon the (revolutionary) suspension of the entire existing constitutional order, in order to found a new one that cannot be derived from, authorized, or legitimated by the previous one in any way. Prime examples of sovereign dictatorships for Schmitt are the self-constitution of the people in the wake of the French Revolution and the democratically elected national constituent assembly that came together in Weimar in 1919. After 1920, the only possible exemplar of a sovereign dictatorship is provided by the Marxist vision of the dictatorship of the proletariat.

In a commissarial dictatorship, on the other hand, powers are delegated to the commissar as situationally specific and spatially/temporally limited measures deemed requisite to realize the law. The commissar is subject to instructions issued to him by his taskmaster. He cannot create a new state of law. Conceptually, these two types of dictatorship are incommensurable, discontinuous, and mutually exclusive. The minute the constituent assembly has completed its task, and the constitution becomes the prevailing framework of law, the terms of reference that a sovereign dictatorship gives itself, cease to operate. While the commissarial dictatorship can become included within the legal order, and the commissar can become a regular civil servant, the reverse is not possible: the legitimacy of constituent power within the framework of a sovereign dictatorship is in principle irreducible to legality.

While referring to Schmitt’s distinction between sovereign and commissarial dictatorship, Agamben disregards it for his further investigations, simply rejecting any theories that posit the state of exception in relation to the system of law. For Agamben, such theories have the dubious claim and aim of justifying the suspension of the law and the creation of domains of anomie, as well as inscribing the state of exception within a legal context. Agamben casts Schmitt’s carefully drawn distinction between sovereign and commissarial dictatorship as two stages along a continuum. This continuity is extended to posit a fluid transition from the Weimar Constitution to the Nazi seizure of power. In the early 1930s, Agamben avers, the Weimar Republic had degenerated into a regime of a state of exception. For then as for now, Agamben perceives the “danger [of] a transformation of a provisional and exceptional measure into a technique of government.”

It thus emerges that Agamben and Schmitt accord different meanings to the state of exception. While Agamben sees in the Nazi seizure of power an intensification of a commissarial dictatorship turned sovereign, Schmitt, in his writings of the early 1930s (up to 1933), pinned his (spectacularly misplaced) hopes on the Reichspräsident‘s (commissarial) declaration of a state of exception to protect the constitution from its own fragility and to prevent the Nazi seizure of power. While Agamben sees Weimar’s peculiar “protected democracy” as a constitutional dictatorship facilitating a sliding transition to a totalitarian regime, Schmitt asserts a qualitative difference between dictatorship and totalitarianism. Moreover, Schmitt draws a dividing line between the Weimar Constitution and the national socialist regime.

Nazi totalitarianism is entirely novel. It is not consonant with the criteria of a commissarial dictatorship, nor with those of a sovereign dictatorship. Commissarial dictatorships tend to become integrated into the system of law—which is not the case under national socialism. The Nazi seizure of power does not fall under the definition of a sovereign dictatorship, as it does not suspend the entire constitutional order in order to found a new one; it does not act as legitimate, sovereign, constituent power.

Far from being temporally, spatially, and situationally circumscribed, and far from tending to be integrated with legal provisions of a state of law, a flurry of special ordinances remain characteristic of the totalitarian regime that exercises its powers through being continuously in flux, with the state becoming “state-bearing party” under a “state-and people-bearing leadership” becoming “state- and-people-bearing movement” in that “dreigliedrige politische Einheit” of Schmitt’s Staat Bewegung Volk (1933)—that treatise that marks his turn to Nazi power and ideology, a text as troublingly programmatic as it is sharply diagnostic. After the war, Schmitt extends his earlier diagnosis: the Nazi power structures defied any description of an ordered and predictable division of competencies, while adhering to bureaucratic procedures. The semblance of legality had been stretched thinly to cover a host of special ordinances and singular decrees distinct from exceptional measures of a commissarial dictatorship.

The problem of totalitarianism, for Schmitt, lies neither in sovereignty nor in the decision on the state of exception per se. The history leading up to it is one of the becoming-immanent of sovereignty, of the state, of Recht (as system of law), of considerations of justice, and of sources of authority and legitimacy. In this case, Schmitt talks of “the social complex” being rendered total. In tandem with this “becoming-immanent of sovereignty and of the state” goes a thoroughgoing depoliticization.

Considering these entirely different and contrasting understandings and invocations of the state of exception, we should be able to discern entirely different meanings of variations of the same phrase—”the state of exception has become the rule”—being bounced around variously by and between Carl Schmitt, Walter Benjamin, and Giorgio Agamben.

Benjamin’s eighth thesis closely follows Schmitt’s reflections on the relationship between different definitions of dictatorship as state of exception. The state of exception becomes a philosophical problem only with the uncoupling of state and law from the system of law, in cases where the system of law cannot safeguard society. In that instance, “law flows into politics and history,” opening a path toward a transition from the contested political order to a “real state,” whose legitimation cannot be found in an existing political or constitutional norm, but can only be envisaged in and through a philosophy of history.

While concurring on the same phrase, “the state of exception has become the rule,” the effects of Schmitt’s and Agamben’s analyses, are vastly different. While Agamben sees sovereignty proliferating in every arena of social, it has receded for Schmitt. In precisely the figures in which it appears in exemplary form for Agamben, it is conspicuously absent for Schmitt. Yet, in a peculiar way, these opposing positions have inverse theoretical effects, not only in relation to each other, but in the relationship between their own terms and tenets. While Agamben’s analysis purports to expose the biopolitical nucleus and nexus of sovereignty, and to demonstrate the proliferation of petty sovereigns in every area of social life, and thereby appears to place political power center stage, it produces the reverse effect: his assertions register and in their own statement confirm a thorough depoliticization. For Agamben, modern governmentality draws biological life fully within its realm, without critical remainder or excess. Agamben’s own analysis contributes to this depoliticization by choosing to ignore the issue of constituent power in reducing the “sovereign dictatorship” of Schmitt’s definition to the continuation of the special measures within a repressive state of exception.

Schmitt, too, has to concede the historical transformations of the state that have effectively drawn the state into society and that would necessitate a change in the conceptualization of the political. Yet Schmitt comes up with a more nuanced account of re-politicizations in the wake of sweeping processes of depoliticization upon the disappearance of historical anchors of sovereignty. Instead of relying on a transhistorically projected and retrojected monolithic idea of sovereignty, he investigates re-politicizations in the process of the drawing of the state into society, and expanding social power, through the phenomena of what he calls “apocryphal acts of sovereignty,” and through the concept of polycracy coined by Johannes Popitz. “Apocryphal acts of sovereignty” are defined as social power complexes arrogating to themselves the powers of sovereignty in making themselves the agents of political will formation and its enforcement; and “polycracy” designates a multiplicity of legally autonomous agencies in the economy and finance sectors installing themselves at local level, whose operations, often propagated under the motto of “self-government,” extend independently of and beyond policy and legislation, splitting and destroying the frameworks provided by the state.

While such developments dissolve the link between norm and validity, and limit the question of sovereignty to moments of political crisis, Schmitt is not prepared to sacrifice the concept of the political to an immanentist account of the state. He retains the definition of sovereign dictatorship as reference point and horizon for a genealogy of the state and a legal order, and at the same time as a normative condition for the possibilities of constitution (as constituent power) and critique.

The attribute “sovereign” remains central to constituent power, beyond historically located sovereignty, and beyond sovereignty tied to the state. The challenge of thinking a concept of history in keeping with the insight that the state of exception has become the rule is met by Schmitt with the reinstatement of sovereignty in a particular sense—and that is where Schmitt and Benjamin envision the “real” state of exception. The new envisaged political order that cannot be derived from or legitimated by the existing one, can find its legitimation only in a norm posited by analogy with a future order whose vision is drawn from the philosophy of history (that Schmitt calls “real”). In this “miraculating” idea of constituent power lies the crux of Schmitt’s early definition of sovereign dictatorship and the state of exception that it precipitates. And this is clearly the “real” state of exception toward which Benjamin’s eighth thesis gestures.

To return to the contrasting analyses of the state and of sovereignty between Schmitt and Agamben, then, we could say that on Agamben’s analysis, petty sovereigns are proliferating everywhere in the world today, whereas for Schmitt, sovereignty is receding in society, while the need to call it to thought—and with it, to the reconstitution of the political—is becoming ever more urgent.

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