Anarchy, sovereignty, and the state of exception: Schmitt's challenge.

• Author: McConkey, Michael
• Position: Carl Schmitt - Critical essay

"Sovereign is he who decides on the exception." So begins an iconic work by Carl Schmitt (2005), one of the twentieth century's most controversial scholars. Schmitt, arguably also one of that century's greatest legal theorists, poses a serious challenge to anarchist theory that, so far as I can determine, has never been explicitly confronted from within the anarchist tradition. It is true that Schmitt had liberalism in mind when he made his challenge, and anarchists would concur with parts of his challenge as they relate to liberalism in particular. Nevertheless, even if he were not addressing himself to anarchists, his core challenge on the question of sovereignty is one that anarchist theory cannot disregard. Schmitt pushes us to confront the hardest case in what many would consider anarchy's soft underbelly. In the face of the direst threat, such as a potential extinction event, would not the coordinating and coercive power of the state, with its capacity to make a universally enforceable decision, be the best means of overcoming the threat? Given the gravity of such a scenario and the Schmittian solution's necessity for central state intervention, it behooves anarchists to meet his challenge. Failure in this regard would leave anarchism exposed as inadequate in the moment of greatest human need. I argue here, however, that statist solutions are subject to a paradox that subverts their apparent advantages. Even in the direst circumstances, voluntary association still trumps coercion.

The revival of Schmittian scholarship in recent times has included an all too common tendency to dismiss his critiques as a function of his practical politics. He was a relentless critic (some might say intellectual saboteur) of the Weimar Republic and apparently an enthusiastic embracer of National Socialism when it came to power. He thereafter seems to have engaged in intellectual dishonesty of Orwellian proportions in his support of the Nazi regime. The final word on his collaboration, though, remains contested. (1) Nevertheless, however distasteful may be the character or motives involved, ad hominem argument remains only ad hominem argument. If Schmitt's claims are not true or their import is not what he alleges, we must demonstrate that they are so on intellectual grounds, not by resort to biographic demonology.

Here I explore Schmitt's development of the nature and relevance of the state of exception--exception to the legal norms and routine law--in order to isolate the core challenge that he poses to anarchist theory. The key concept to grasp is his notion of sovereignty. As we unpack the historical ground of his concept of sovereignty, though, the shortcomings of his purview will become evident. His partial story lends itself to his valorization of sovereignty as the solution to the state of exception, which is ultimately an inevitable political fact. That very partiality, however, misleads him into underappreciating the larger consequences of that same history. Where Schmitt sees only a liberalism defeated by the gruesome realities of the French Revolution, a wider purview reveals not a defeat, but a renewed radicalism of liberty's longer revolution. In liberalism's comeuppance, anarchism was born. Failing to recognize this historical fact or to appreciate its theoretical relevance leaves Schmitt's claim for sovereignty, as the inescapable solution to the state of exception, inadequately defended. It is necessary first to understand this historical lacuna in Schmitt's analysis if his more general blindness to the free-market alternative is to be appreciated.

Faced with the state of exception, the decentralized, spontaneous, emergent, adaptive system of the free-market laboratory of experimental trial and error turns out to be not merely an alternative, but the only viable option that is not susceptible to becoming a cover for advancing special interests--that is, the only option that does not actually derail genuine solution seeking. This system's rewards for successful discovery of widely preferred options alone provide the means for the most committed to pool their effort and resources toward finding the solution that the state of exception requires. And, indeed, this conclusion holds ever more strongly as the threat converges toward a truly existential one. Like Schmitt, those, such as the global-warming lobbyists, who presume that only the sovereign state has the integrity, disinterest, and social benevolence necessary to carry out this mission suffer from inadequate acquaintance with the anarchist theoretical tradition. They therefore must receive the same verdict as he at the hands of reason.

Sovereignty and Schmitt's Challenge

The concept of sovereignty developed along a winding route through the thought of the medieval scholastics, but, building on Machiavelli's innovations, Jean Bodin began to give the concept its peculiarly modern meaning. Schmitt picks up the story at this point. (2) In the hands of Bodin and later Hobbes, in contrast to earlier versions in which something like sovereignty was always subject to natural law and obedience to god, the sovereign comes to be seen as above the law. A logical argument might be made along these lines. After all, how can the sovereign give and enforce the law to everyone else if he is himself a mere equal to his subjects? If he were, then any of his subjects would be thought equally competent and entitled to give and enforce the law.

Only because the sovereign is above the law can he be sovereign. After all, if the law has to be changed, it cannot be changed from within because doing so would be breaking the law. Only someone above the law can change it. This principle of the sovereign's standing above the law was important for Schmitt and his eventual articulation of the state of exception because in his view the sovereign not only had to decide how to respond to a state of emergency but also had to determine when such a state exists or must be invoked. Again, authority superior to the normal law is required.

This superior power of the sovereign arrived through a transition of the Christian concept of the two bodies of Christ into the secular realm, so that one starts to speak of the two bodies of the king: the one that can die as an individual man and the one that lives on eternally, embodied in his heirs and rightful successors to the throne. Along with this notion of the two bodies, the idea of "the mystical body" was smuggled into the language of sovereignty (Kantorowicz 1981)--the notion that the subjects are somehow organically joined into the king's enduring body. (He, of course, is the body's head.) This conceptual leap would become important a little later in the modern development of sovereignty theory. It is prominent in Schmitt's Volk valorization in his "concept of the political" (Schmitt 1996).

Arguably in Bodin, but certainly in Hobbes, an important theme of the legitimization of the sovereign is its role as an umbrella for liberty. Precisely because such sovereign authority creates the conditions for everyone else to live in liberty--decisively for Hobbes, because this authority provides security--it has legitimacy as a proper consequence of the social contract. (3) The other important development for this history of sovereignty theory, combining the social contract for the common good and the glossed-over but always immanent mystical body, was Rousseau's contribution, in which sovereignty comes to be embodied in all and only in all in the form of the General Will. In the guise of transferring sovereignty from the dictatorship of the king to the people, what really evolves is the dictatorship of the collective over the individual: an observation developed by both Jouvenel (1949) and Maritain (1951). Absolutism is not overcome, but transposed, so it makes perfect sense to shift discussion from the divine right of kings to the divine right of majorities. Both Bodin and Hobbes, although preferring kings, acknowledged that sovereignty could still be exercised in aristocracies or democracies. Rousseau merely took them at their word.

Rousseau's twist on sovereignty had its decisive historical moment in the French Revolution. Although Schmitt perhaps failed to analyze Rousseau's contribution adequately, he certainly paid close attention to the French Revolution. Alas, from the anarchist's perspective, he learned the wrong lesson. It is true, of course, as Schmitt observed, that the French Revolution became the cauldron and template for liberalism's state of exception and taught a vivid lesson in liberal democracy's dilemma. He criticized liberalism and liberal democracy for their predisposition to talk rather than to decide. When the rubber hit the road, though, and everything was on the line, only a decision would do: sovereignty was essential and inescapable. In Schmitt's estimation, the liberals and democrats should have learned this lesson from the French Revolution. This landmark cataclysm served to validate Schmitt's decisionism.

In anarchist theorists' estimation, of course, a very different lesson...