Centralization I – Pragmatism During a State of Exception?

The general theoretical argument that crises are situations that call for a centralization of power and that leave little space for pragmatist fallibilism and deliberation can be best discussed by using the example of Carl Schmitt’s concept of the state of exception.

In Political Theology (1922) Schmitt famously claimed that “Sovereign is he who decides on the exception” (Schmitt 1985, 5).41 _{The meaning of this laconic definition is unclear at first and has to}

be put both in the context of its historical situation and Schmitt's oeuvre.

Schmitt's early works were published during the times of the Weimar Republic (1918-1933) in Germany and implicitly deal with the unstable and fragile setting of its political system. Put in “apologetic” terms (see Scheuerman 1995, 135) Schmitt thought about how the democratic constitution of the Republic could be defended against the challenges by the Communists on the Left and the National Socialists on the Right. This search eventually lead him to the proposal of authoritarian solutions for this problem that made his ideas compatible with National Socialism in the end. This authoritarian program developed in two steps: First, in his study from 1921 on dictatorship Schmitt (1964) differentiates two kinds of dictatorship: commissarial and sovereign. While the sovereign dictator overthrows the old constitution and becomes the source of a new law,

41 _{In the German original the sentence reads as “Souverän ist, wer über den Ausnahmezustand entscheidet”}

(Schmitt 1996, 13). I cannot see why Ausnahmezustand has been translated as simply “exception” and not as the more precise “state of exception”, as it has also been used by Agamben (2005).

a commissarial dictatorship defends the existing constitutions by suspending it (or some of its elements) for a limited time.42 _{Schmitt advocated such a commissarial dictatorship of the German}

president to defend the Weimar republic (see E. Kennedy 1988; Shapiro 2008, 18).

In a second step, in his essay The Crisis of Parliamentary Democracy (published 1923), Schmitt loosens the connection of democracy and parliamentarism: “The belief in parliamentarism, in government by discussion, belongs to the intellectual world of liberalism. It does not belong to democracy” (Schmitt 1988, 8). For Schmitt, not only can a democratic spirit be present in a parliamentarian system but also in a dictatorship since “dictatorship is not antithetical to democracy. Even during a transitional period dominated by the dictator, a democratic identity can still exist and the will of the people can still be the exclusive criterion” (Schmitt 1988, 28). Compared to his first argument Schmitt goes a decisive step further here: (Temporal) commissarial dictatorship becomes not only a way to defend democracy but can have a democratic quality itself.

The relevance of Schmitt for this study becomes clear when one begins to be aware of the importance that crisis played in his thinking. As George Schwab writes:

“Given the threat of conflict and the uncertainty and distress this could engender, Schmitt focused his attention on crises in a state's existence. A crisis, according to him, is 'more interesting than the rule' because 'it confirms not only the rule but also its existence, which derives only from the exception'” (Schwab 1985, xvi).43

What is troubling for a pragmatist approach though is that Schmitt arrives at conclusions that are incompatible with an understanding of pragmatism as it has been advanced so far.44

How Schmitt arrives at such different conclusions becomes most visible in his concept of the state of exception. As Schwab explains in a footnote,

“a state of exception includes any kind of severe economic or political disturbance that requires the application of extraordinary measures. Whereas an exception presupposes a constitutional

42 _{This concept of commissarial dictatorship reflects the practice of temporal dictatorship in the Roman}

Republic (see Sherwin-White and Lintott 2014)

43 _{The quotes are from Schmitt (1985, 15).}

44 _{It should be noted in this context that this position is not undisputed. The conservative pragmatist and}

legal scholar Richard Posner for example has identified Schmitt's thinking as “pragmatic”. Posner's understanding of pragmatism however comes down to a shared emphasis of consequences for Schmitt “grounded his rejection of liberal legal theory in a belief that the real logic of the law was a logic of consequences rather than one of antecedent principles” (Posner 2003, 44). While Posner raises some interesting points in this context I find his conception of pragmatism as mere emphasis of consequences too thin. His claim that pragmatism “has no political valence” (Posner 2003, 44) has been convincingly refuted by Knight and Johnson (1996) who have outlined that pragmatism includes a priority of democracy. Since I share this assumption (see 2.5.5) I see profound differences between Schmitt's position and a pragmatist approach.

order that provides guidelines on how to confront crises in order to reestablish order and stability, a state of emergency need not have an existing order as a reference point because neccessitas non habet legem [necessity has no law – M.B.]” (Schmitt 1985, 5).

In the terms of this study the state of exception is an extreme crisis. But by emphasizing the

exceptional character of a crisis Schmitt develops a distinct theory of sovereignty and authority. According to him the sovereign rises precisely in crises for which the existing (political-legal) system is ill prepared. But the function of the sovereign is not only to manage the crisis. The sovereign also

“decides whether there is an extreme emergency as well as what must be done to eliminate it. Although he stands outside the normally valid legal system, he nevertheless belongs to it, for it is he who must decide whether the constitution needs to be suspended in its entirety” (Schmitt 1985, 7).

It is clear then how Schmitt imagines the sovereign in times of crises to be the commissarial dictator who protects the constitution by suspending it.

Recently Giorgio Agamben has presented a systematic examination of Schmitt's theory and has applied it to the current situation of world affairs. Building on Walter Benjamin's eight thesis on the concept of history45 _{Agamben argues that the state of exception “tends increasingly to appear as the}

dominant paradigm of government in contemporary politics” (Agamben 2005, 2).46 _{But by drawing}

on Benjamin, Agamben has also been able to highlight an aspect of Schmitt's concept of the state of exception that enables us to link it back to Dewey's theory of impulse and (pragmatist) intelligence. With Benjamin Agamben rejects Schmitt attempt to define the commissarial suspension of the constitution as an act of law:

“The attempt of state power to annex anomie through the state of exception is unmasked by Benjamin for what it is: a fictio iuris par excellence, which claims to maintain the law in its very suspension as force-of-law. What now takes its place are civil war and revolutionary violence, that is, a human action that has shed every relation to law” (Agamben 2005, 59).47

As Agamben (2005, 60) reads Benjamin, violence, or more precisely pure violence, is not simply brutal force or aggression but “human action that neither makes nor preserves law”. I would suggest

45 _{“The tradition of the oppressed teaches us that the 'state of emergency' in which we live is not the}

exception but the rule. We must attain to a conception of history that accords with this insight. Then we will clearly see that it is our task to bring about a real state of emergency, and this will improve our position in the struggle against fascism” (W. Benjamin 2003a, 392).

46 _{Here and in the following paragraphs I will concentrate on Agamben's interpretation of Benjamin}

without exploring the question if this interpretation is “correct”. Given the immense complexity and depth of Benjamin's writings this is an endeavor this study cannot pursue.

47 _{Agamben crosses out law in force-of-law intentionally to indicated that the state of exception “is an}

to read Agamben's idea of the state of exception (as a state of pure violence in Benjamin's sense) in connection with Dewey's concept of impulse.

In setting out to develop his understanding of violence, Benjamin made it clear that he is not interested in the question of which ends are pursued through violence. Instead he looks for a criterion that allows to “discriminate within the sphere of means themselves, without regard for the ends they serve” (W. Benjamin 2007, 277). As Agamben puts it: “[P]ure violence is that which does not stand in a relation of means toward an end, but holds itself in relation to its own mentality” (Agamben 2005, 62).

This understanding of pure violence closely resonates with Dewey's concept of impulse as he developed it in Human Nature and Social Conduct. For Dewey impulses are a kind of “chaotic, tumultuous and confused” (Dewey 1922, 177) instincts that are released when habits are frustrated or disrupted. As Elizabeth Anderson highlights, impulses are also characterized by being without an end:

“Impulsive activity is not purposive. It involves no idea of an end to be achieved by the activity. When a newborn infant sucks on its mother's nipple, it obtains food and thereby satisfies its hunger. But the newborn has no idea that this will be a consequence of its sucking, and does not suck with the end in view of obtaining food” (E. Anderson 2014).

If we continue this juxtaposition of Agamben's and Benjamin's concept of pure violence and Dewey's concept of impulse and put it in the context of the state of exception further similarities arise. Following Agamben the state of exception is a “space devoid of law, a zone of anomie in which all legal determinations […] are deactivated” (Agamben 2005, 50). What takes place in this state is pure violence, i.e. human practice that has no relationship with law whatsoever. It is violence that does not govern or execute but “purely acts and manifests” (Agamben 2005, 62). While I am not sure where this would lead if we follow Agamben and Benjamin48 _{Dewey offers a}

clear escape from this situation. Just as pure violence arises in states of exceptions for Dewey impulses appear when old habits are disrupted and challenged. But Dewey believes that intelligence

48 _{At the end of his book Agamben (2005, 87f) offers some remarks concerning this question of how to}

proceed after his analysis. For the sake of completeness I will briefly summarize them here.

Given the fact that the state of exception “has today reached its maximum worldwide employment” it is clear for Agamben that we cannot simply “return to the state of law”. Instead Agamben insists on the difference between life/violence and law/norm that has been shown in his analysis. The strategy that has to be followed then is to “open a space between them for human action, which once claimed for itself the name of 'politics'”. This space would open the possibility for a new usage of law: “We will then have before us a 'pure' law, in the sense in which Benjamin speaks of a 'pure' language and a 'pure' violence. To a word that does not bind, that neither commands nor prohibits anything, but says only itself, would correspond an action as pure means, which shows only itself, without any relation to an end”.

(through experimentalism, deliberation, fallibilism, etc.) is able to reflect on these disruptions and can try to give them meaning in the form of adapted or new habits.

In other words: while Schmitt has tried to grasp extreme crises (states of exception) as situations where law has to be maintained and defended by (temporal) dictatorship, Agamben, Benjamin and Dewey have forcefully rejected this view. They do so using different languages but their mode of reasoning is similar: extreme crises challenge, suspend and disrupt existing habits (i.e. law) via pure violence (Benjamin) and undirected impulses (Dewey). These are disruptions that cannot be simply forced back under the umbrella of existing laws and habits as Schmitt imagines. Rather – and this is Dewey's innovative contribution to this debate – they can be processed by pragmatist intelligence. Pragmatism thus provides an answer to the theoretical challenge posed by Schmitt’s theory of the state of exception and its tendency towards authoritarianism. On the theoretical level we thus cannot find any absolute constraint that excludes the possibility of pragmatism in times of crisis. In the next section we will see how this debate has continued on an empirical level.