Political Theology

Four New Chapters on the Concept of Sovereignty

Paul Kahn

• Publisher: Columbia University Press
• Year: 2011
• ISBN:
  9780231527002
• Topic: Philosophy
• Subtopic: Political Philosophy

In this strikingly original work, Paul W. Kahn rethinks the meaning of political theology. In a text innovative in both form and substance, he describes an American political theology as a secular inquiry into ultimate meanings sustaining our faith in the popular sovereign.

Kahn works out his view through an engagement with Carl Schmitt's 1922 classic, Political Theology: Four Chapters on the Concept of Sovereignty. He forces an engagement with Schmitt's four chapters, offering a new version of each that is responsive to the American political imaginary. The result is a contemporary political theology. As in Schmitt's work, sovereignty remains central, yet Kahn shows how popular sovereignty creates an ethos of sacrifice in the modern state. Turning to law, Kahn demonstrates how the line between exception and judicial decision is not as sharp as Schmitt led us to believe. He reminds readers that American political life begins with the revolutionary willingness to sacrifice and that both sacrifice and law continue to ground the American political imagination. Kahn offers a political theology that has at its center the practice of freedom realized in political decisions, legal judgments, and finally in philosophical inquiry itself.

1

DEFINITION OF SOVEREIGNTY

THE OPENING WORDS OF CHAPTER ONE are some of the most famous in the history of political theory: “Sovereign is he who decides on the exception.” This sentence sets up the structure of the entire inquiry and is thus the point of entry into a political-theological approach. That approach is a kind of mirror image of the political theory of liberalism: not law, but exception; not judge, but sovereign; not reason, but decision. The inversion is so extreme that we might think of political theology as the dialectical negation of liberal political theory.¹

Reading the sentence nearly one hundred years after Schmitt wrote it, we still have to wonder about the success of the modernist project of subordinating all politics to law. We, who just barely survived the last century, may be similarly situated to Schmitt’s generation, which had just barely survived the First World War. Reading Schmitt, one feels that he comes to the political with an awareness of its potential for violence, a sense that law is straining to contain that violence, but also a recognition that something terribly important is at stake in this violence: “The exception… can at best be characterized as a case of extreme peril, a danger to the existence of the state, or the like” (6). This is not the violence of the state of nature, but the violence of state creation and destruction. Surely, the contemporary problem of terrorism looks a good deal like a political situation in which law may fail, violence threatens, and meanings of great significance are at issue.

Three critical terms appear in this opening sentence: sovereign, decision, and exception. Each can be defined only in terms of the others; together, they point to a single political phenomenon. That phenomenon can best be approached by setting the opening sentence in contrast to the parallel proposition of three concepts: “the judge is he who applies the norm.” These two propositions describe competing political imaginaries, that is, ways of understanding the character, source, and meaning of political experience. The second proposition captures the imagination of ordinary life in the modern, liberal state: order is the product of general norms expressed in and through law. These norms bind government actors and protect individuals from each other. Every individual can appeal to a judge to protect his or her legal rights. This model of legality, when linked to the democratic production of norms, is the source of legitimacy in the normal situation. The sovereign is displaced from view, lingering at best as a mere abstraction—popular sovereignty—but not capable of any concrete intervention.

Schmitt’s opening proposition describes an entirely different imaginary, one in which norm and judge have been pushed from view. There is nothing abstract about the Schmittian sovereign: he decides in an act of will. The decision for the exception is distinctly not the application of a norm, which means that it will violate rights and interests recognized in the normal situation. Most dramatically, in the exception the sovereign will take life and property, while under ordinary circumstances legal norms protect life and property. Is this not exactly what happens in a war?

This opening sentence, then, poses a critical question to a contemporary theory of political order: Does there remain a place for the decision beyond law, or is our political life wholly ordered by law? Is such completeness precisely what we mean by a constitutional regime and the rule of law? Can we imagine the exception as anything other than a violation? If politics has become a domain wholly ordered by law, there is no need for a political theology. The point is analogous to religious theology: if all that is, or can be, is fully explained on the basis of physical laws, there is no room for theological inquiry. Traditionally, theology begins only with faith in the miraculous: the sovereign decision for creation. The miracle is the exception. It is moreover, an exception that requires a decision. Thus, David Hume defines a miracle as a “transgression of a law of nature by a particular volitional act of the Diety.”² Absent the volitional act—that is, the decision—the exception would appear not as miraculous but as arbitrary and chaotic. There is literally a world of difference between the miracle and the lawless. That difference is the presence of the sovereign decision. Similarly, a sovereign who could no longer decide for the miraculous would have become empty, a mere idol. Of such gods, we have no need, whether in metaphysics or politics. Rejecting the category of the sovereign, science knows no exceptions; it has only the category of the “not yet explained.” A polity that rejects the concept of sovereignty will have only the categories of the legal and the illegal.

SOVEREIGN AND EXCEPTION

A legal order can be viewed abstractly as a system of norms in which every norm is related to all of the others. Those relationships can be hierarchical or horizontal. The former grounds the place of deduction in legal reasoning; the latter grounds the place of analogy. Together, these two kinds of relationships mean that the entire legal order is on view from every point in the whole. Every norm gives us access to the entire legal world. In this sense, law is like a language.³ Standing within such a system, one never gets beyond it. Thus, of every proposed action, we can ask, “Is it legal?” We answer that question through a combination of deductive and analogical reasoning.⁴ If we were bound in all of our political perceptions to see the world through the frame of law, we would never get to the exception.

We are not so bound. Legal norms enter our lived experience tied to other forms of meaning, including other understandings of politics. To say that law is a complete system of order is not to say that it is exclusive. Instead, it is like saying that there is no experience of which we cannot give a scientific account. That proposition hardly rules out aesthetic or moral accounts. Describing the cause of an event will not tell us whether we judge it to be beautiful. Two such positions “outside” of the legal norms are equity and revolution. Equity reveals, on the smallest scale, this possibility of political decisions evoking meanings set against the ordinary legal norm. Revolution—a paradigmatic instance of the Schmittian exception—does so on the largest scale. While they differ dramatically in scale, both constitute exceptions, and both require a decision. They are linked to each other as the miracle of creation is linked to the miraculous answer to a singular prayer.

Equity and revolution are outside of law but not illegal. They mark the point at which judgments of legality lose their hold on the imagination. Even though both equity and revolution make reference to law—both hold forth law as the norm—neither is an application of law. The norm, Schmitt often says, requires ordinary circumstances for its operation; the exception occupies those circumstances that are less—or more—than ordinary. The quality of the exception is always one of self-limitation: the exception cannot become normal.⁵ Nevertheless, the nature of norms is such that the exception is always subject to normalization: law will seek to extend to the exceptional decision.

Schmitt does not say that the sovereign is only present in the decision for the exception, and such a view would not be plausible. Surely sovereignty is at stake in the rule of law as well as in the exception. Historically, we see that the judicial writ of authority formally issued from the king; the judge spoke in the name of the king.⁶ Again, the theological analogy can serve us: from the belief that God has the power of miraculous intervention, it hardly follows that the ordinary workings of nature do not equally reflect His creative act. Indeed, precisely because nature is the product of His free act, it remains open to the possibility of a new demonstration of that freedom.⁷ Sovereignty is not the alternative to law, but the point at which law and exception intersect—at stake in both is the free act. The historical and theological connection is also evident as a matter of logic: there can be no exception without reference to a norm. Without that reference, the exception becomes mere anarchy: not the miraculous intervention, but law’s failure. The miracle must affirm the norm, at the same time that it violates the norm. Accordingly, a conception of the sovereign that begins from the exception cannot help but affirm the norm as well. Only a deliberate act—a conscious choice—can have these simultaneous qualities of affirmation and negation.

While the exception must include a reference to the norm, does the norm necessarily include a reference to the exception? Can we imagine a world without exception—that is, one that is fully “normalized”? Of course we can. That is the worldview of the natural sciences, on the one hand, and of bureaucratic rationality, on the other. What we cannot easily imagine is the possibility of freedom in a world that is fully normalized. This was exactly the problem with which Kant struggled: how, in a law-governed world, to preserve a place for freedom that is not arbitrary. His answer too looked toward sovereign creation: a free act must be one in which the subject gives the law to himself. A free order, Schmitt responds, is one in which the exception is possible. The exception represents the possibility of free choice, and choice requires a subject—the sovereign—who decides. In the Schmittian exception, for just this reason, the norm itself is the object of choice—not, however, as in Kant’s giving a rule to oneself. Rather, it is that for the sake of which a decision is made. The inversion here is critical: the norm does not determine the decision; rather the decision is for the norm. The sovereign must affirm the norm in a world in which he can will the exception. If the political order is to be understood as the product of freedom, then rule and exception must each imply the other.

SOVEREIGN POWER TO DECIDE: EQUITY

Schmitt introduces the exception “as a case of extreme peril”—he is thinking of an existential threat to the state. But we do better to start on a smaller scale. The contrast of law and exception, of judge and sovereign, restates at a higher level the traditional contrast of law and equity. Equity embodied the idea that there must be the possibility of exceptions to a legal rule. Without such a possibility, justice—the assumed goal of all legal norms—would fail. The point is as at least as old as Aristotle.⁸ The puzzle is how to do justice while violating just norms. Were the norm itself unjust, the right response would be to reform the law. Equity creates the exception while affirming the norm.

The English system of equity also linked the exception to the sovereign. The common-law courts applied the norm; speaking in his name, they were the mediated voice of the king. The immediate presence of the king, however, was located in the Chancery and the Star Chamber—the civil and criminal sites of equity. These panels were frequently described as “keeping the king’s conscience.” His presence was an aspect of their physical structure even if he did not always actually participate.⁹ Exercising the power to decide on exceptions to norms was not just a matter of administration. Rather, the panel relied directly on the king’s sacral character, which in this regard had a double aspect: in part, it was a matter of fulfilling his Christian obligation to do good; in part, it was a matter of displaying his own will as the site of ultimate meaning in the state.¹⁰ Absent the sacral presence, the exception could look like nothing more than a failure of law, that is, as an instance of injustice. While justice under law is a function of reason, the exception is a matter of presence.

We only capture part of the problem here if we ground it in the complexity of human circumstances, noting that no rule can capture all of that diversity. This might be true, but it models the equitable decision as a further—now ad hoc—application of the rule, which must be refined to deal with particular circumstances: a better rule or rules would pick up more of this complexity. God’s love, however, responds to particulars not because his reason is inadequate, but because justice without love is inadequate. God’s goodness is always both universal and particular—or why else would there be prayer? His justice is never separate from His love. If it were to become so, vengeance would be both terrible and endless. If the king’s end was to achieve God’s ends on earth, then political institutions had to achieve some kind of synthesis of the universal and the particular, of justice and love, of rule and exception. A sacral monarch was as much a loving parent as an instrument of justice. Thus, King James described the role of Chancery as “mixing Mercy with Justice, where other Courts proceed only according to strict rules of law.”¹¹

It is much more difficult for us today to understand the character of the legal exception as something other than a violation of the norm. It has the air of partiality about it: not love, but interest. Norms specify behavior that has been abstracted from the person who is doing the acting. Justice, we say, treats like cases alike. By “like,” we refer to similarly situated individuals, not to their character. The exception, understood as an opening for love and mercy, is directed at the person as a unique subject. We need justice and love because we are always both one of many and uniquely a self. We hear still an echo of this idea in the often repeated phrase in periods of democratic transition that we must “forgive the person, not the crime.”

Who, however, is to exercise love over justice once we have detached sovereignty from personhood? To temper justice with love is a virtue of character; it is, accordingly, a difficult virtue to attach to an institution.¹² Only with some difficulty can we ask for love from an institution. Were courts responsive in this direction, for example, we would more likely speak of a failure of law—and of justice—then of justice tempered by mercy. The perception of partiality in the exception was not such a problem in the premodern era, for the sacral monarch embodied the double character of universal and particular. Exactly this double character made him Christlike.

The sacral monarch expressed the miraculous as the presence of the infinite in the finite in at least three respects: first, in the king’s two bodies; second, in the practice of curing the sick through a laying on of hands; and third, through the exercise of equity.¹³ These were all interrelated. A king who could cure the body outside the laws of nature could also cure social pathology outside of the laws of the realm. We see in the relationship of the macrostructure to the microdecision the ground of Schmitt’s claim: “The existence of the state is undoubted proof of its superiority over the validity of the legal norm” (12). Before there could be any law at all, there had to be the king’s body as the mystical corpus of the state. That was the sacred source, which could invest in and withdraw from particular finite formations. Existence before justice.

The exception might be exercised by man, but it rested on the sacred acting through man. Accordingly, the king placed on the bench of the equity chambers religious figures of authority.¹⁴ Shakespeare speaks to this same tradition when he writes that “[mercy] is enthroned in the hearts of kings / It is an attribute of God himself; / An earthly power doth then show likest God’s / When mercy seasons justice.”¹⁵ The exception that is beyond justice but not unjust is not human at all; it overflows with the presence of the sacred. The democratic version of this is Lincoln’s plea for “charity for all” in response to the suffering brought on by a God whose “judgments… are true and righteous altogether.”¹⁶ There is a familial side to this phenomenon as well: for love of family, I will make exceptions to a norm that I fully acknowledge to be just.

At issue in the crown’s equity powers, then, was the being of the sacral monarch—one who opened a space for the sacred in and through his very presence. Standing in the place of Christ, the sovereign had to be able to will the exception, which is the miraculous presence that can stand outside of law without appearing partial or arbitrary. To be exempt from law was to be marked—the idea goes all the way back to Cain.¹⁷ The moral value of he who bears the exception is always ambiguous: unjust and loved, polluted and sacred.¹⁸

In our secular age, an echo of the sacral presence of the king is still found in the pardon power. This is a remnant of the sovereign power to decide on the exception to the law. It always verges on lawlessness as we try to find a ground for mercy that does not appear to be mere partiality. That ground can only be care, which is always personal and unbound by rules. We may feel that we need a pardon power; yet, if we cannot speak of care, love, or the sacred, we are at a loss to offer a justification that is consistent with our other beliefs about the rule of law. Our ordinary inclination, then, is to displace pardon by a system of “earned probation,” administered by a bureaucratic board. We seek to normalize the exception.

When we assign the pardon power to the chief executive, we worry that we are putting him above the law: where is justice outside of law? Yet when Grant Gilmore writes, “In Hell, there will be nothing but law,” we understand his point.¹⁹ The pardon power still has something of the character of the laying on of hands, of the mark of the sacred, indeed of the blessing. It is not quite the same as an act of forgiveness, for there is no need for the beneficiary even to admit guilt. The pardon is always undeserved. It literally takes the bearer outside of law. It is a gift that comes as if from nowhere. Indeed, if we can give an account of its exercise in a particular case—that is, if we can offer a causal explanation of how the pardon came to be granted—we are more likely to judge it corrupt.²⁰

SOVEREIGN POWER TO DECIDE: THE BORDERLINE

Equity and pardon point to a need to act freely beyond law. Both had their origins in the free act of the sacral-monarch. With the disappearance of that concept, both have become problematic. Pardon has just barely survived; equity jurisdiction has long since been fused with the ordinary jurisdiction of courts of law.²¹ Ours is an age in which deviation from the norm is suspect: no one creates a power to decide for the exception behind the Rawlsian veil of ignorance. The whole point of that veil is to subordinate will to reason, the particular to the universal.

Reflection on equity, nevertheless, points us in the right direction for thinking about the political limits of a l...

Table of contents

• Cover 
• Half title
• Series Page
• Title
• Copyright
• Contents 
• Foreword
• Acknowledgments
• Introduction: Why Political Theology Again
• 1: Definition of Sovereignty
• 2: The Problem of Sovereignty as The Problem of The Legal Form and of The Decision
• 3: Political Theology
• 4: On The Counter Revolutionary Philosophy of The State
• Conclusion: Political Theology and The End of Discourse
• Notes
• Index