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Drawing the state of exception

Introduction

 

Carl Schmitt was a Weimar political and legal thinker who became one of the leading jurists of the Third Reich. Schmitt is best known for his theory of sovereignty, most clearly articulated in his book Political Theology (1922). His famous formulation, ‘sovereign is he who decides on the exception’, has several key components.[1] For Schmitt, the sovereign—the absolute, legitimate ruler of a state—reveals himself in two ways: firstly, through the ability to make a genuine or pure decision; and secondly, by deciding what constitutes an exceptional moment, an exceptional case. The extraordinary measure appears during emergency, siege, or crisis, at a time that requires suspension of the existing order so as to maintain order.

The sovereign decision is a formal construct, a product of Schmitt’s aesthetic cravings for political and legal security. His scholarly attempts to elaborate on this idea of decision employ the aesthetic language of shape, shapeliness, definition, discernment, identification, pattern, boundary, contrast, dualism, polarity, fit, surface. The use of a formal, artistic lexicon to articulate his theory of sovereignty speaks to aesthetic sensibilities within the concept itself. Schmitt cannot create a political concept without turning to the language of art, rendering, and line drawing. For him, sovereignty is ‘a borderline concept… one pertaining to the outermost sphere’ [my emphasis].[2] Because his concepts are theoretically complicated, Schmitt employs artistic language. This is why his aesthetic sensibilities are interesting to think about: his work on sovereignty persists today and has influenced some major humanities theorists, including Jacques Derrida and Giorgio Agamben. Yet his political rhetoric is premised on a polemical strategy of insistence and disavowal that subordinates the aesthetic sphere to the political sphere.[3] That Schmitt is at once dismissive and troubled by the aesthetic sphere invokes an involuntary irony, because he conceives his concepts through the aesthetic mode, through the language of literature and art.

 

 

Context

 

Schmitt’s reverence for decisiveness within the political sphere is born out of a particular historical moment in Germany. Schmitt privileges decision over indecision, exposing an essential desire for form over content, which brings his work into conversation with literary modernist and avant garde figures. There were twenty separate coalitions during the Weimar period, the longest period of government lasting two years. His anxiety about open-ended deliberation speaks to this political landscape. Schmitt deems the contemporary theory of law as both a ‘deteriorated normativism and a degenerate decisionism… a formless mixture, unsuitable for any structure’.[4] He wants to bring form to something formless. He claims that the state should modify so-described liberal texts such as the Versailles Treaty and the Weimar Constitution to allow for decisive political action. According to Schmitt, degenerate compromise must be sacrificed for pure decision, one that cuts through established legal form and composition while rendering new demarcation and delineation.

            Immediately after the Reichstag Fire in 1933, President Hindenburg invoked Article 48 of the Constitution, allowing Hitler to use emergency decrees to bypass parliament. Hitler ordered the extrajudicial killings of internal enemies the following year so as to consolidate power. Schmitt legally justifies Hitler’s actions in an article entitled “The Führer Protects the Law” (1934), advocating this extraordinary measure in this exceptional moment. ‘The Night of the Long Knives’ embodies the most potent, reprehensible illustration of Schmitt’s desire: that the sovereign decides on what counts as the exception. To understand the legal rationale for such political events, we should consider the aesthetic sensibilities of their conceptual origins. Drawings are useful for showing the aesthetic motivations of political decision. One method is to render Schmitt’s theory of sovereignty in pictorial form, to sketch the cyclical and unanticipated process that reveals the sovereign. Using Schmitt’s language as a starting point, here is a triptych of images.

 

 

 

Norms

 

 

 

 

 

Schmitt describes sovereignty as the ‘limiting’ or ‘border’ concept that exists at the ‘outermost sphere’.[5] Imagine that this border—the straight-line depicting sovereignty—is situated at the furthest reaches, at the limit of human understanding, power relations, and authority. The border—sovereignty—is depicted as beneath a general mass of rules and norms, which are by nature vast and repetitious. This constitutes everyday human life in which norms work in a sort of harmony: they differ from one another but function together, allowing the state and its subjects to happily cohabit a demarcated space, that is, the nation.

The border—sovereignty—is depicted as above the state of exception, which is small and incipient. The sovereign reveals himself when he acts on this exception. For Schmitt, ‘the exception is more interesting than the rule’ because it proves the rule.[6] When the exception breaks the rule, it suggests that there exists a set of norms that can be broken. The exception is potentially ecstatic, primed for its intervention in the rules-based order. The norms that comprise the rules-based order are otherwise dull and passionless. Norms can never anticipate the moment of exception; they cannot see beyond the border. Uniquely, the border—sovereignty—sees in both directions.

 

 

 

 

 

Torpor

 

 

 

The mass deteriorates. Repeated rules and norms feed the malaise. At unpredictable times, according to Schmitt, ‘the power of real life breaks through the crust of mechanism that has become torpid by repetition’.[7] The exception is now rendered larger, more discernable; its ecstasy develops. For Schmitt, ‘the exception in jurisprudence is analogous to the miracle in theology’.[8] It is unruly and unruled. The border remains the same at this point, because the mass—the dense mixture of rules and norms—cannot see, predict or anticipate the moment of exception. Given that, for Schmitt, the moment of exception cannot be anticipated, the mass of rules and norms cannot conceive of their own density and torpor. The lines increase in thickness, overlap one another, generating confusion and obstinacy. The sovereign must decide on what counts as the exception to restore his visibility and produce order in the mass.

 

 

 

 

 

Exception

 

 

 

The sovereign decides on what counts as the exception. In the moment, the border—sovereignty—shakes and oscillates across both sides, violating the existing demarcation while simultaneously rendering one anew. In this movement the creature of the sovereign is revealed. It is the creature of the limit and of the border. This decision is rendered through two perspectives. First, the mass cannot distinguish between chaos and decision; it sees a blur of itself and the sovereign creature. The dense mass expands, finding space. Second, the sovereign creature does not see itself but only the chaotic mass, of which it is now entwined. The decision—revealed in the sovereign creature—retains superior perception and understanding over the mass. Decision is rendered out of nothingness; it is groundless. The sovereign does not explain himself; he merely and absolutely decides. Afterwards the state returns to normality, to the rules-based order.

 

 

 

 

Illustrations conceived and drawn by Joseph Owen. Rendered graphically by Sam Hodgson.

 

 

 

[1] Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. by Georges Schwab (Chicago, IL: University of Chicago Press, 2005), p. 5.

 

[2] Ibid.

 

[3] Schmitt is referenced extensively in Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford University Press, 1998); Giorgio Agamben, State of Exception (University of Chicago Press, 2008); Jacques Derrida, Politics of Friendship (London: Verso, 2005); Jacques Derrida, The Beast and the Sovereign, Volume I (University of Chicago Press, 2009); Jacques Derrida, The Beast and the Sovereign, Volume II (University of Chicago Press, 2011).

 

[4] Schmitt, Political Theology, p. 3.

 

[5] Tracy Strong, ‘Introduction’, Political Theology, p. xxi.

 

[6] Schmitt, Political Theology, p. 15.

 

[7] Ibid.

 

[8] Ibid., p. 36.

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