Do we face a new rule of lawlessness? On the high seas, in matters of international law and human rights, and even in domestic prosecutorial practices, any grounds to place one’s trust in the lawfulness of order seem increasingly elusive. The New World Order appears to be no order at all; the century of secular universalisms leaves us in the state of a general and all-encompassing nihilism. Still, rather than signaling a dead end rife with global despair, the collapse of everything that went under the name of the New World Order could be a harbinger of ample opportunities for imagining new and competing forms of legitimacy. Such would be the event of legitimacy in the eclipse of legality.
To be sure, there is an inherent connection between the oceans and lawlessness, as Carl Schmitt argued long ago in The Nomos of the Earth; law is by nature telluric, an order that applies to defined territory on dry land.[1] But, in the context of the new rule of lawlessness, has the anarchic politics of the sea extended itself to the ostensibly well-grounded laws of the land? On the sea, piracy continues to put in question the reach of the global mechanisms of legality. The rescue of Captain Richard Phillips, who in turn saved the crew of the Maersk Alabama from Somali pirates, was surely welcome news. Was the operation carried out by the American forces that saved him “unilateral”? How could they act without a Security Council resolution? And what would have been the price of inaction sanctioned by the interminable discussion within the international community that let this piracy fester in the first place? While the distinctive character of piracy as a unique category of crime has been recognized since antiquity, perhaps it is time to consider it as an intensely political phenomenon, as opposed to a mere criminal act. The British admiralty, for example, enjoined the Royal Navy from capturing any pirates (who were thereby confined to the permanent state of exception) for fear that doing so would give them claims on the British legal system. Yet given the perpetual bloviating of internationalists about global order, the salient failure to act against piracy is particularly telling.
Telling as well is the manner in which Arab governments have warmly embraced the Sudanese president, Omar al-Bashir, despite the warrant issued for his arrest by the International Criminal Court. Or does the warrant add to his allure? It is hard to imagine flouting the presumed legal world order in any more obvious way or with a more despicable figure. Those who bewailed the Bush administration’s resistance to the ICC have yet to say much about this disrespect for the court (could their objections have been politically motivated?) or about the Arab leaders’ display of touching solidarity with the man most responsible for Darfur. Instead, we have seen the American president bow down to the Saudi king.
Even in old Europe, the law seems to be in retreat. Last September, a court in The Hague dismissed a suit against the Netherlands brought by Hasan Nuhanovic, a survivor of the Srebrnica massacre, who contended that Dutch forces, acting for the United Nations, had failed to provide the protection to refugees to which Holland was obligated under the European Convention of Human Rights. Stunningly, the court argued that because the Dutch were acting for the UN, they were therefore no longer bound by human rights treaties, to which the UN is not a signatory. Savor that for an instant: a Dutch solider following UN orders is (you are reading this correctly) absolved of human rights obligations. To recall the sorry events: those Dutch forces turned Bosnian refugees, including Nuhanovic’s parents and brother, over to Serb forces, sending them to their death.[2] The international organization founded in the name of human rights is the organization least willing and least able to defend them.
Nor are matters legal much better off in the United States, where prosecutorial abuse and politically motivated trials have become, with sad irony, the law of the land: the Duke lacrosse fiasco, the political witch hunt that targeted Scooter Libby, the toxic combination of careerist ambition and bureaucratic arrogance in the case against Ted Stevens. Anyone can come into the crosshairs of a trigger-happy district attorney, who may be just like you and me except that the district attorney can make use of the state’s monopoly on violence. No one expects the list of arbitrary victims to stop growing. Notably, the recent presidential campaign involved concerns about the politicization of justice; the regime has changed, but the problem may be getting worse. Just as Telos author Jean-Claude Paye argued that the restrictions on civil rights in the name of the war on terror were carried out in Europe and not only in the America of George W. Bush (indeed, more vigorously in Europe), it appears that the accrual of state authority and the politicization of law continues and may even be accelerating in the new administration in Washington.[3] What’s going wrong with legality? This issue of Telos turns to Carl Schmitt’s considerations of the topic.
The link between Schmitt’s legal and political theories has been a topic of scholarly scrutiny for almost two decades. Missing from the discussion of legality and legitimacy in Schmitt, however, is the notion of the event as a way of mediating between these two terms and, more generally, any extensive awareness of the philosophical underpinnings of his approach to law. To be sure, the gist of Schmitt’s critique of legalism is fairly straightforward: one particular mode of legitimacy, legality, identifies itself with this broader term and passes itself off for the “whole” of which it is only a part. In other words, legality, which is only one among several possible forms of legitimacy, claims to be the sole legitimate form of political authority. Thus, this final institution of the rule of law refuses to recognize the authority of any other ruling power, even though, as Schmitt constantly reminds his readers, laws themselves do not rule, since they are unable to interpret themselves, except in the fetishized form they assume in liberal fantasies. The rule of law is also always the rule by men and women with multiple and conflicting political agendas. The usurpation of all legitimacy by legality, a systematic concealing of the political process, is the key to the process of bureaucratization, with its neutralizing, seemingly de-politicizing effects. It is this process that divests political life of its vitality, so that laws no longer express the life of the community they regulate but instead become a function of normative or abstractly derived principles.[4] In this world, a life not sanctioned by the lawgiver is not a life worth living or, rather, is not a life one is permitted to lead.
Nevertheless, there is much more at stake in this analysis than the false opposition between the law with its claim to carry general validity and the personal dictates of particular political actors. A more subtle Schmittian distinction presents us with two versions of the law itself: the bureaucratic-legalistic model associated with the ideal of the rule of law, on the one hand, and something like a legality without legalism, on the other. While the former locates legitimacy in an abstract proceduralism, the latter implies a thicker version of legitimacy replete with multiple and differentiated modes of legitimation. It is the foundational event of political communities and its repeated symbolic reaffirmation that ground such alternative legitimation.
Both the quiet supplanting of all legitimacy by legality and the preservation of a productive tension between the two terms need to be further thought through under the heading of the event. In a nutshell, the event refers not only to the initial institution of legality but also to its subsequent reinstitution and reaffirmation as the legitimate mode of legitimacy. The lawful community remains political, even (or especially) when the appeal to legality seems to hide politics. It is worth noting, however, that with every renewal of allegiance to an abstract legality, the concept of legitimacy gets further debased, growing ever murkier through a Weberian process of routinization: in other words, the exclusive appeal to legality undermines the viability of legitimacy. No community is merely a rational code of statutes. Such, of course, is Jacques Derrida’s take on legality in “The Force of Law,” with its argument that the violent origination of law through extra-legal means is forgotten, or at least shrouded in the veil of myth, but remains effective in spite of, or thanks to, this forgetting.[5] In Schmitt’s terms, the originary event of valorizing legality and elevating it above all other modes of legitimacy is not a singular occurrence, nor even a historical process. The appeal to the law (even to its neutrality) inescapably serves the irrepressible extra-legal and deeply political motivations buried in the origins of legality as a modern dogma. Allegiance to the law and, ultimately, to the state that guarantees it, is repeatedly resurrected in every act that reinstitutes or reaffirms it as the only possible framework of legitimacy. Respect for the law is indelibly political.
It follows then that one should exercise extreme skepticism when anyone enlists legal authority and the rule of law in support of arguments that pretend to be unpolitical. Indeed, much like the appeal to humanity or human rights, these references function as arguments of the last resort, after which the discussion is supposed to stop, with the opponent embarrassingly disarmed. But the victory of abstract legalism should not betoken the absolute neutralization and depoliticization of a formerly antagonistic milieu. Legalistic argument is, rather, a tool to pursue politics by other means, to redefine the terms of engagement in ways advantageous to the liberal proponents of this ideology of law. Schmitt exposes this strategy for what it is: the appeal to neutrality is never neutral. After Schmitt, political actors can be either openly Schmittian or clandestinely Schmittian, with no middle ground to supplement the two. It is disingenuous to claim to pursue law (as defined by the state) without politics (a modicum of violence and force, if only interpretative).
Schmitt’s account, forged in the context of Weimar conditions, casts, perhaps not surprisingly, a stark light on current developments. Barack Obama’s call for a “politics of hope, not of fear” seems to outline a utopian third option, neither bluntly belligerent nor insidiously manipulative, at least on the surface. This messianic hope, despite considerable uncertainty about its specific goals, involves pursuing a politics in a different key, even an apolitical politics, the philosophical standing of which is best associated with the creative, value-generating powerlessness that Nietzsche identifies with the reactive attitude of the weak: walk softly and carry no stick. The avowed utopian aspiration of this ideology is to distance itself from all politics, or rather, to relegate politics to a corrupt and benighted past, now presumably surpassed in a new age of regained innocence and superior intelligence. Hence the assumption that the pursuit of legality can be undertaken, fully separated from the violent event of its institution: at stake therefore is law, not national interest, as if the two could be neatly sundered. This implies as well the repression of any reinstitution of the law as governed by a founding violence and, therefore, the need to articulate the possibility of a qualitatively new and markedly innocent beginning. The law to be pursued lies beyond any special interests and therefore beyond politics (or at least any so-called politics as usual, as if there were any other politics).
A significant piece of this program is the strong insistence on legality at its purest, no longer leaving any conceptual space for an independent notion of legitimacy. Law and right are assumed to collapse into one: there is no law that is not fully just, and there is no justice outside of the law. Yet like all utopian projects that pretend to erase the contradictions of human existence, this agenda too quickly begins to display a repressive character. An early casualty of this hypertrophic legality is the very concept of an unjust law, so important, for example, in Martin Luther King’s Letter from a Birmingham Jail. If all justice is fully within the law, then ethical acts outside the law are not only criminal but, even more cruelly, must themselves be declared unjust. Any action directed against the established order that transgresses against legal procedures is therefore criminal and wrong. So much for civil disobedience. More germane is the systemic skepticism that the new legalism necessarily fuels against any autonomous social dimensions not generated by legislation: traditions, religion, communities, the whole informal life-world. Whatever does not issue from the law cannot be right: hence the unmistakable predisposition toward expansive regulation, for only via regulation can life become legal. Meanwhile this programmatically fetishized legality turns out to be a daydream with a nightmarish quality, as it pursues political agendas masked as a pursuit of law. Indeed one can say that despite the extreme liberalism of its expressed ideology, this legalism turns into a clandestine and disingenuous Schmittianism, constantly pursuing politics while simultaneously stripping it of all political tact.[6] The third way, the utopia beyond mere politics, just turns out to be an extension of old politics under an ideological cover.
There are numerous indications that, instead of breaking with the event of the extra-legal institution of the law, the politics of hope is becoming exquisitely adept at sublimating, masking, and disavowing this event, the foundational political moment and its extension, the genuine politics beneath the fog and abstractions of parliamentary debate. The classical structure of disavowal—one of the psychic defense mechanisms in Freud—paradoxically combines both an acknowledgement and a repudiation of a slice of disagreeable reality. It is this defense mechanism that the current administration is trying to perfect with reference to the extra-legal domain that it intends to bring under government control, while simultaneously endeavoring to appear unpolitical. A certain ambiguity ensues, to say the least. While the event, loaded with politics, elicits an affirmative response, similar to what Alain Badiou terms “fidelity,”[7] the ideological promise of a post-political new beginning necessitates a split reaction of acceptance and rejection, encapsulated in the notion of disavowal. It seems that the lawyer Obama’s distaste for extra-legality is so strong that he deploys two divergent rhetorical strategies to combat its terrifying specter: on the one hand, the insistence on the sacredness of the rule of law and, on the other, a quasi-ecstatic discourse of love wrapped in a hybrid theology, mixing a Jewish messianic aspiration to “heal the world” (“tikkun ‘olam”) with a Christian redemption through humility. Hence the frequent religious overtones, which were subject to considerable parody during the campaign. What this excess of rhetorical strategies hides however is a failed attempt to reconcile the cold and dispassionate discourse of the rule of law with that ecstatic-messianic rhetoric of love, or to produce a “mature” mix of realism and idealism, which is after all the leitmotif of The Audacity of Hope.[8] It is surprising that the all-too-obvious contradiction between these two dimensions of the politics of hope did not raise any eyebrows, much less elicit questions as to which of the two commitments, law or love, would define Obama’s political decision-making. That, however, would have required a thoughtfully critical press.
Yet this promised messianic love does not operate as a genuine supplement to the heartlessness of law. Far from a gift that surpasses the formula of the law, the invocation of love acts only as a rhetorical distraction from the genuine extension of legality as state-imposed regulation. It is a compensatory mechanism that serves to sweeten the pill of the new administration’s own brand of deeply political legalism. This pill is especially hard to swallow given the intense efforts to create an appearance of direct democratic and civic participation at the grassroots level during the presidential campaign. Indeed, the campaign offered even more: a mass embrace, the promise of redemption, a program to “move on” and to leave the bad world of politics behind. What has become apparent in the meantime is a new legalism without redemption. Instead of arising from a community that would govern itself through the law, it turns out to be as abstract as any bureaucratic law, as it overlays and stifles community life. The masses, clamoring for love were mobilized for electoral purposes; no longer needed, they become superfluous. If the left continues to hammer at the administration for what it regards as disappointments, it may face the same repressive wrath reserved so far for the right and business leaders in Detroit and on Wall Street. Indeed, some premonitions of such a pushback have already begun to play out, as the Democratic Party leadership tries to clamp down on the left constituencies advocating for their own agenda. It may just be a matter of time before they face less informal resistance. If the government can prosecute to the right, it can prosecute to the left as well.
For we have already seen how the renewed emphasis on the rule of law has been serving as a ruse for clearly partisan political interests. One disingenuously Schmittian usage of law as politics has been evidenced in Attorney General Eric Holder’s overruling of the Office of Legal Counsel opinion concerning the unconstitutionality of the District of Columbia’s representation in the Congress.[9] Perhaps we should just forget the Constitution, which Franklin Roosevelt once notoriously ascribed to the “horse and buggy” era. An even more obvious instance of disrespect for the rule of law is the executive decision of the Obama administration to continue the practice of renditions as a legitimate tool in fighting terrorism.[10] Similarly the Obama administration has not budged one iota on its predecessor’s reliance on the “state secrets” position in order to avoid being compelled to turn over sensitive evidence in prosecutions of suspected terrorists. If one argues nevertheless that a politicization of law is inevitable, then at the very least the fiction of legal neutrality becomes untenable.
Although the contours of the politics of hope at the initial stage of its implementation are still fuzzy, a general trend that emerges is an increase in sovereignty—in the classical Schmittian sense of making a decision on the exception—that proceeds in the name of the law. The increase in state authority is justified empirically by the outcome of the elections, interpreted as conferring a mandate, but, more importantly, it is also substantiated metaphysically, with reference to a slightly modified version of Rousseau’s general will. The implicit metaphysical assumption operative here is that the electoral majority is a reflection of an absolute unanimity, which, throughout The Audacity of Hope, Obama claims to access by piercing through the “superficial” differences between the Republicans and the Democrats and which overrides the actual disagreements and confrontations between political adversaries. In philosophical terms, conflictual politics as a whole is thereby degraded and relegated to the ebb and flow of accidents that overlay the unchangeable and non-political common substance of the American nation, prophetically formulated by the founding fathers and inherited directly by the new president. Needless to say, the political character of the event as such is irretrievably lost in this resurrected dogmatic distinction, redolent of Scholasticism, for substance is a non-event underpinning all permutations and vicissitudes of politics and lived history. The putative insubstantiality of politics is but the flip side of the religious-metaphysical projection of History as an inexorable destiny of progress.
Empty abstractions remain rampant, proliferating Hegelianisms on the right and on the left: just as, from the standpoint of the Bush administration, the enemy stood for obstacles in the world-historical march of freedom and, by implication, for the enemy of “humanity,” so the new figure of the enemy haunting Obama’s attempt at a metaphysical de-politicization refers to unenlightened obstacles in the path of social “perfectability,” to use Rousseau’s concept, whether it is understood in terms of the promise of progress in interracial relations, in finding alternative energy solutions, or in resolving international and transnational conflicts. The new enemy is out of touch with the common substance and therefore lacks the fundamental sense of collective belonging that could override the barrage of petty differences and oppositions afflicting political life. The enemy is, in effect, any proponent of partisan politics, that is to say, of the only politics worthy of the name. (Thus, Obama’s initial bipartisan efforts in the formation of his cabinet, ambitiously intended as a team of rivals, yielded little success.) Yet, in the face of the voluble appeal to unanimity, we ought to remember that commonality is never defined on common grounds but is polemically constructed out of the partial perspective of those who invoke it. Any so-called universality turns out, on examination, to be nothing more than the imperious expansion of an arbitrary particularity.
A rethinking of the relation between the universal and the particular in Schmitt provides the backdrop for Alexandre Franco de Sá’s argument in “The Event of Order in Carl Schmitt and the Weight of the Circumstances.” Against the prevalent view of Schmitt as an opportunist who changed his ideological positions depending on the shifting political circumstances, de Sá demonstrates how Schmitt’s overriding concern with the fragility of social order prompted him to support those forces most likely to forge “the event of order” at any given time. This follows from a hyper-modern axiom that order, the arrangement of particulars, is not given once and for all but must always be reconstituted anew. It is this perpetual reconstitution that de Sá calls “the event,” in which the law may function as a pure means for bringing about the desired outcome only under the circumstances that favor the legal way of creating order. In other words, de Sá conceives of the event as a radically context-dependent mediation between the source of all legitimacy (the demand for order) and the variegated mechanisms of accomplishing it (including, but not limited to, the appeal to the law).
Unlike de Sá, Mika Ojakangas subscribes to what Louis Althusser would have called “an epistemological break” in Schmitt’s corpus, expressed in the turn from the decisionism of his early thought to the institutionalism of his “mature” writings. But Ojakangas, too, is interested in the notion of the event as it relates to the law and its “sacred origins,” traceable back to the telluric relation to the earth. Whereas the first legal order arises directly from land appropriation, which evokes the Heideggerian take on the “event of appropriation,” the reinstitution of the law hinges on the forgetting of its sacred origins, as it does in Derrida’s “Force of Law.” Removed from its roots in sacred space, or the appropriated segment of the earth, law is not only deterritorialized, but it is uprooted from the concreteness of life and transformed into a set of normative rules. For Ojakangas, the event denotes the creation of sacred space and, thus, of the existentially concrete figure of law. Yet the question is whether the history of its subsequent reinstitution, unfolding under the sign of the forgetting of origins, is itself an integral part of the event, since the process of appropriation is unable definitively to set itself apart from expropriation and desacralization.
This question is at the core of Michael Marder’s article, which considers the promise of Schmitt’s political philosophy to lie in the idea that the event of politics harbors the principle of expropriation. If the critical rise in the quantum and energy of antagonisms can politicize any domain of human thought and action, then Schmitt’s notion of the political may be interpreted as an existential possibility that cuts through various “non-political” spheres and lacks a proper field of its own. In this sense, politics is diametrically opposed to economics, where appropriation remains paramount, even though, given the rise in class antagonisms, the economic domain may also become political. Appropriation, including the mythical appropriation of the earth and the birth of concrete nomos, is part and parcel of the economic—not the political—logic, while politics depends less on a demarcation of sacred spaces than on the passage of time required for antagonisms to reach a boiling point of politicization. Nevertheless, the relation between the economic and the political retains a certain ambiguity, given that Schmitt wishes to come up with the concept of the political, which, read through a Hegelian lens, entails its reappropriation, a reestablishment of its identity with itself.
Roy Ben-Shai further corroborates the argument against appropriation in his formulation of “the unsovereign event” through a reading of Schmitt’s account of Shakespeare’s Hamlet. Ben-Shai is interested in Schmitt’s fascination with Hamlet, who, in his indecision, seems to be anathema to the model of the sovereign as the one who decides on the exception. Interpreting the event as a “counter-concept,” he focuses on the eruption of the real into play, both with regard to the actual historical events coded in Hamlet and, more abstractly, as a limit to human activity and invention. Effectively, however, this reading of the real in Schmitt is heavily influenced by its Lacanian and post-Lacanian association with trauma, which is a piece of experience we can neither integrate into our identity nor appropriate. Therefore the unsovereign event must assume the guise of a tragedy that bespeaks our unavoidable passivity and, at the same time, curtails the claims of the political heroism of a decision.
In “Notes for a History of the Political: Capital Events and Bodies Politic in the French Revolution,” S. D. Chrostowska teases out what she calls “the evental history of the political” in Schmitt, analyzing the French Revolution as the paradigmatic event, both exemplary and exceptional. Like Marder, she dwells on political events as the loci of possibility, not as actual historical occurrences. Modernity is represented by the mechanization of the law, which now assumes a normative dimension described by Ojakangas in his discussion of the deracination of nomos and the forgetting of its sacred origins. A sign that the processes of desacralization and equalization have reached a peak, in Chrostowska’s view, is the adoption of the guillotine—a machine that literally reconstitutes the French body politic and puts an end to the mystique of monarchical legitimacy. Taking Heidegger’s point concerning the uniqueness of one’s death to heart, Chrostowska argues that the mechanical production of death by the guillotine paradoxically allowed the new regime to repeat the unrepeatable, paving a way for the modern ideal of indifferent and universally applicable legality as the sole paradigm of legitimacy. Equality before the neutral law began at the guillotine.
In a similar vein, articulating history and politics, Artemy Magun interprets the event as a compass that can provide us with an “orientation”—a term Magun borrows from Kant—in history after the erasure of the traditional lines of demarcation between the political left and right, that is, between a radical openness to the novelty of the future and a conservative turn toward the past. When these overly simplified spatio-temporal distinctions collapse, the paradox of recognizing the new (of inserting it into an old conceptual framework and, thereby, running the risk of losing its novelty) arises alongside the question of the subject who would have the wherewithal to orient itself in the complex historico-ideological milieu. For Magun, Schmitt contributes to the formulation of political subjectivity by elaborating on the subject’s affective constitution: a risky openness to others from whom it draws its identity and a capacity to decide on the nature of the relation to them, be it as friend or as enemy. The subjective paradox of simultaneous openness and closure thus reveals the supplementary, not the mutually exclusive, character of retrospective and prospective orientations that come together in the figure of event, such as a revolution with its retrieval of the past and radical innovation.
In relation to Magun’s argument, Gabriella Slomp’s essay on the event of conscription in Hobbes and Schmitt occupies a position on the opposite end of the spectrum of competing interpretations of Schmitt’s work. Slomp leaves no space for subjective openness in Schmittian political philosophy, where all emergencies are public, not private, and where individuals have little or no recourse to challenge the state’s unconditional demand that, in dire situations of war, its members be ready to die for it. Unlike Hobbes, Schmitt does not allow for the individual’s private deliberation on whether or not, given a threat to the polity, he or she would want to withdraw her obedience to the state. What is provocative in Slomp’s paper is the constellation of an existential emergency, the event, and a purely public reaction to it, demonstrating the overwhelming primacy of the political, the exigencies of which will trump all private concerns of the citizens.
The issue concludes with a brief text by Schmitt, “Three Possibilities for a Christian Conception of History,” available here for the first time in English translation, as well as Joseph W. Bendersky’s extended review of Schmitt’s recently published diaries and his correspondence with his student Ernst Forsthoff. Schmitt’s essay, a review of Karl Löwith’s book Meaning in History, gives the reader a glimpse into the theological dimension of the event in his thought. Construing Christianity as a singular and “non-appropriable” event that transcends the history in which it arises, permits Schmitt to launch an attack against the leveling of history to a chain of meaningless occurrences, from which meaning may be constructed only a posteriori. Bendersky meanwhile draws our attention to the contrast between Schmitt’s private desire to “re
