The Decision on the Exception

“Sovereign is he who decides on the exception” (Schmitt, 2005, p. 5). This laconic sentence introduces the key argument of Political Theology: that the decision on what constitutes an exceptional state of affairs is the sort of phenomenological moment when political sovereignty is revealed28. No other instance in the life of the State, Schmitt argues, can express with this utmost clarity just how political authority is actually structured within the latter. Consequently, any attempt at constructing “a philosophy of concrete life must not withdraw from the exception and the extreme case, but must be interested in it to the highest degree” (Schmitt, 2005, p. 15). Regarding our concrete political existence, the exception is actually more significant than the rule, insofar as “the rule proves nothing”, but “the exception proves everything: it confirms not only the rule but also its existence, which derives only from the exception” (Idem).

As is apparent from these brief considerations, the exceptionality of the exception manifests itself in a crucial way as far as legality is concerned: it evades

28 _{The title “Political Theology” is justified by Schmitt with the assertion that “[a]ll significant}

concepts of the modern theory of the state are secularized theological concepts”, not only because they were historically “transferred from theology to the theory of the state” (the “omnipotent god became the omnipotent lawgiver”, for example), but also because they impart a certain “systematic structure” on the latter – which, among other things, makes the “exception in jurisprudence […] analogous to the miracle in theology” (Schmitt, 2005, p. 36). For a more in depth exploration of this matter, and its relation with Schmitt’s thesis on sovereignty in the same book, see Franco de Sá (2003).

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complete codification in legal norm. It is the very definition of “exception” that a “normal” situation has – at least momentarily – ceased to exist. When such a situation arises, therefore, there remains no norm from positive law which can be applied, since such norms are conceived to function within a normal – and normalized – legal framework. In face of abnormality, the sort of decisionism advanced by Schmitt “assumed that order was being produced from disorder by means of a 'decision' that at the same time made the one making it sovereign” (Norris, 2007).

The decision on the exception is thus a true decision and, consequently, the ultimate expression of that which is the fundamental political act: to decide. It is a decision which, as Schmitt puts it, “frees itself from all normative ties and becomes in the true sense absolute” (2005, p. 12). Simultaneously – and crucially – it also reveals who the sovereign is: he who decides not only whether there is an exceptional situation at hand, but also what must be done to restore normality. Sovereignty, then, should not be understood simply as “the monopoly to coerce or to rule”, but – and essentially – “as the monopoly to decide” (Idem, p.13).

Schmitt’s chief criticism of influential jurists of his time, such as Krabbe and Kelsen – whose normativist theory of State features prominently across his work as a decisive cause for his pessimistic view on the politics of the Weimar Republic – arose from their seeming intention to remove the decision from the realm of politics – to “conceive of law (Recht) devoid of the realization of law (Rechtsverwirklichung)”, thus “rendering that law something purely ideal, not only situated outside the plane of existence, but deprived of the power, that is, the decision which, by applying it to a given situation, would grant it effectiveness” (Franco de Sá, 2003, pp. 93-4)29.

The emphasis placed by Schmitt on the crucial importance and almost absolute power of the decision – especially in such stark contrast to the more normative focus of liberal theories – is definitely something which clearly challenges the rationalistic view which we have argued has become predominant in contemporary politics. Indeed, Schmitt’s very use of the “analogy of the miracle to illustrate the state of exception, in which the sovereign decision suspends the norms

29 _{We understand normativism here as a legal theory that holds that law must be considered in “pure}

form” independently of social, economic, and political conditions – such as Kelsen’s “pure theory of law” (1934).

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of statutory liberalism, just as the miracle suspends natural law” (2010, p. 192) feels like a clear declaration of intent, when it was evident that, in the intellectual history of ideas, “Deism and Enlightenment rationalism had prohibited the miracle together with the sovereign exception” (Idem, p. 196).

Schmitt insisted that a rationalist approach to politics fails to deal with the exception, and indeed that the latter is incommensurable with the former. The exception, he claims, “confounds the unity and order of the rational scheme” (2005, p. 14), constituting a sort of impurity which must be purged from the rational ordination of politics, lest it corrodes the formal perfection which the latter seeks to attain. This discomfort seems to be, at least in part, at the root of the antipathy that the scope and nature of Schmittian notion of exception motivated among proponents of legal normativism, who perceived in it an element of dangerous and potentially unbound irrationality. Both Krabbe and Kelsen, Schmitt’s frequent interlocutors in

absentia, sought to “avoid the binding of sovereign power to a subjective and arbitrary will, free from commitments and determination”, thus preventing the legal realm from being “contaminated” by something alien and pernicious (Franco de Sá, 2003, pp. 92-3). The exception, along with the implications of the decision concerning it, represented a real danger in that sense.

The key to fully understand the true nature of the conflict between Schmittian decisionism and legal normativism lies indeed, I would argue, in the fundamentally non-rational nature of the decision Schmitt is referring to. The usage of “non- rational” in this case, however, should not be taken as a synonym of “irrational”, but rather as symbolizing something which does not conform to the reductionist notion of rationality that we have been criticising, and which was often employed by jurists and constitutionalists such as Krabbe and Kelsen (who was a professed Kantian). The seemingly absolute faith of the latter group in the possibility of achieving a “pure theory of law”, from which any semblance of subjectivity or particularity would be utterly removed – thus making it “universally valid for all times and all situations” (Strong, 2005, p. xvii) – struck Schmitt as not only amounting to a blatant misunderstanding of the reality of law and the act of legislating, but of human nature itself.

As Franco de Sá puts it, Schmittian decisionism – “the thesis that sovereignty resides not in the law, but in the decision that realizes that very law” – finds “its basis

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not on an irrationalism, but on what we might call an alternative rationality to normative rationality” (2003, p. 100). This alternative rationality lies, in a first instance – and the one that explicitly concerns Franco de Sá – in “the right of the State to its self-preservation” (Idem, p. 101), which justifies and legitimizes the decision on the exception as a means to safeguard the very legal constitution which is suspended in a state of emergency. Read in light of Schmitt’s assertion that all political concepts are essentially “secularized theological concepts” (Schmitt, 2005, p.36), this means that the Schmittian defence of sovereign power ultimately consists “in avoiding the consequences of fanaticism, consequences that necessarily result from the destruction of the political mediation of the theological” (Franco de Sá, 2003, p. 109).

In a second instance, however – the one which concerns our purpose here more specifically – the alternative rationality implied by Schmitt’s theory also represents an enlarged and enriched version of the purportedly pure, instrumental rationality which often seemed to inform legal normativists’ conception of human reason. The rationalism of liberal theorists – going as far back as Locke – struck Schmitt as promoting “technological, formal, or instrumental reason”, a “kind of ‘aesthetic’ rationality, which is concerned with the production of artifacts, above all with the state as an artifact” (Kahn, 2014, p. 71). In contrast, Schmitt’s conception implicitly denies the assumption that it is possible to fundamentally reduce our political existence to a pre-established system of norms and regulations, which would in turn entail that human beings are either rationally determined automatons or that they should at least behave as such for the most part.

It is then perhaps understandable that Schmittian decisionism is frequently regarded with suspicion or repulsion by liberals, whose view is conceptually and historically much closer to a normativist conception of State, and consequently often embraces a conception of rationality in line with the latter’s. Despite some more recent reinterpretations of Schmitt as an ally rather than an opponent of liberalism, motivated by the aforementioned revival of his ideas and the attempt to read them under a new light, the prevailing view of most liberal thinkers on Schmitt tends to be one of uneasy coexistence, coupled with vigorous disagreement.

Indeed, read as a whole, Schmitt’s ideas seem to stand diametrically opposed to at least two of the most often cited tenets of liberalism: that a polity must be

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completely ordained by a rationally determined set of rules and legislations, and that any political decision must not be reached through a spontaneous and absolute act of sovereignty as such, but mediated by rational consideration and discussion. Schmitt himself was not oblivious to this conflict. In fact, he embraced it, setting his own theory against the prevailing – and, as he saw it, deeply flawed – liberal tendencies of some of his contemporaries. In advancing his own perspective on the political, Benhabib comments, Schmitt attempted to pursue “the rationalistic fallacies of liberalism until its ‘limit concepts’ – die Grenzbegriffe – were uncovered”, concepts which “constituted the secret and unthought foundations on which the structure of the modern state rested. Sovereignty is one such limit concept; government by discussion, and the assumption that all opinions will eventually converge through deliberation upon a rational outcome, are among the other unquestioned presuppositions of liberalism” (Benhabib, 2012, p. 689).

A consideration of the arguments he employs in this attempt to deconstruct liberal thought and expose its frailty as a potential foundation for a political system should now also prove helpful towards understanding the limitations of liberalism’s rationalistic assumptions.