Giorgio Agamben and Carl Schmitt on The Problem of Soveriegnty

The question of sovereignty is a hotly debated and studied one in political philosophy.  Sovereignty, traditionally, means the right to decide to kill; or, more benignly, the right to exercise control over mortality – the right to “decide on the exception.”  This is the universal definition of sovereignty and therefore sovereignty does not equate to “autonomy” or the freedom of human choice in a consumer sense.

Giorgio Agamben, one of the most important political philosophers of the second half of the twentieth century (and still living today), has reminded us of the dichotomy of life from the Greeks: bios (the political or societal life) and zoe (the animal life).  In short, zoe (or animal life) is the bare life of humans: we are animals, we propagate, we have complete control over our bodies but we don’t have complete control over our bodies – someone else may very well attempt to kill me for self-preservation or other means; bios is the societal life in which humans come together under law, contract, or some form of polity, and represents political life – whereby one has certain political rights granted to those who are member of the polity.  Agamben built from, but also challenged, Carl Schmitt in exploring and explaining the problems of sovereignty.

In his series of essays on political theology, Carl Schmitt spent time detailing the crisis of sovereignty in political thought as primarily a contest between legal positivism and decisionism in legal theory.  Beneath the surface this is still a theological question for Schmitt: A God that establishes and withdraws (Deism = Legal Positivism) or a God that creates from scratch and brings forth creation and reality on account of his own willing and decision-making (traditional theism = Decisionism).  This manifests itself in political philosophy between a battle between the law being sovereign (and the state being subject to the law) or the state being sovereign (and the law being subject to the state).  In other words as it relates to his theme of political theology: Can God create a system of laws that he himself is subject to, or is God still above the system of laws that he has established?

The question of sovereignty is really twofold: power and decision-making.  Who has power?  And with that power who uses it to make decisions?  As Schmitt states, “The connection of actual power with the legally highest power is the fundamental problem of the concept of sovereignty.  All the difficulties reside here.”  What is the baseline of sovereignty?  Power?  Or legal norm?  If power where does power actually reside?  (The state or the law?)  If the legal norm what actually establishes the legal norm?  (The state or the law establishing itself?)  As it specifically relates to the crisis of sovereignty, the contest between legal positivism and decisionism is one of deciding – and deciding is central to the question and nature of sovereignty as already established.  If one cannot choose can one be sovereign in other words?

According to Schmitt humans are sovereign insofar that they have the power to make decisions.  Decisions will primarily be based on the “state of exception” or decisions on who to admit into a community and who to exclude.  Schmitt also contends that the positivist view is deeply flawed because of its attempt to eliminate the “hard decisions” of political life.  (The Law has already decided for us.)

Schmitt acknowledges that we live in a world of flux and constant change which always necessitates tough decisions.  Thus, we live in a world where sovereignty is the highest expression (or mode) of existence (or being) because reality demands sovereignty in order to survive.  The problem with legal positivism is that it assumes a mechanistic (Deistic and Newtonian) view of the world where everything works like clockwork in which our decisions have already been pre-determined for us – we are now unfolding to that pre-determined end like a clock’s operation.  Thus, law will reflect the ascription.  That is to say that law will become synonymous to the ascription (cause).  But since we live in a world that is not mechanistic and that runs like clockwork, but one that is always in a state of flux which demands decisions, the act of deciding is life itself.

Schmitt assume the reader to have a knowledge of many thinkers before him: Jean Bodin, Thomas Hobbes, John Locke, Hans Kelsen, Hugo Krabbe, and Otto von Gierke.  I do not have the time to explain all of these philosophers and jurists whom Schmitt studied and dialogued with in his own works for if I did that this would be a whole different post.  Instead I will simply address why these figures are important.  Bodin wrote in the sixteenth century during the height of the French Religious Wars.  His most famous work is the Six Books of the Commonwealth.  Bodin is one of Schmitt’s allies insofar that Bodin saw the state as sovereign and the guarantor of order and stability in which society could flourish free of conflict.  Hobbes and Locke, but especially Hobbes, are conflicted enemies and allies at the same time.  For Schmitt understands Hobbes and Locke as holding to contradictory views concerning the state and law, especially when you factor in Locke’s tabula rasa and Hobbes’s anthropology.  He mostly uses them as foils to explain the faults of positivism.  Kelsen, Krabbe, and Gierke are all jurist working in the realm of political jurisprudence, which is Schmitt’s proper field of work.  Which is why he has an exhaustive knowledge of an Austrian (Kelsen), Dutch (Krabbe) and German (Gierke) legal theorist.  They are all opponents of Schmitt in their own ways (Kelsen being a leading positivist, Krabbe being a leading law as sovereign proponent, and Gierke for being way too Hegelian).

So if sovereignty is to be understood as having the power to make decisions, the question becomes who is sovereign?  Schmitt answers this by explaining that the state and the state alone is sovereign since the state is the real organ of power that makes decisions.  Furthermore, since sovereignty was defined as “He who decides on the exception” in his first essay (which I explained here), and since the state stands outside of the juridical order, it is the state and not the law that decides on the exception.  This is why we have the “state of exception” or “state of emergency.”  It is not the “law of exception” or the “law of emergency” because this runs counter to mechanistic and deistic theology which influenced legal positivism.  No god (the state) can break his own laws.

Schmitt highlights why this is just false on so many occasions.  While he uses technical philosophical and juridical language that is foreign to most people, what he amounts to saying in his long conversation on form and matter and the juridical philosophies of Kelsen, Krabbe, and Gierke is that they are all essentially detached from reality.  Their philosophies will also lead to death since it strips decision-making away and “the law decides for us.”

What came emanates from what?  Is it the law that creates the state?  Or is it the state that creates the law?  This is where Schmitt highlights the contradictions in Hobbes and Locke: Both admit that the state creates laws.  But both want to say that law comes first (in the form of the social contract).  Thus, the Hobbesian-Lockean legal and political tradition is in contradictory tension with itself.  What is sovereign: The State or the Law?  Hobbes openly acknowledges that it is the state.  Locke is more pernicious in that he attempts to hide the state behind the law but we all really know that it is the state which is sovereign and not the law.

But because the positivist tradition promotes law as sovereign over the state, this means that there will come a time in the internal logic of positivism where a single, global, and universal juridical (legal) order subsumes national states and makes everything subject to it.  But in a moment of crisis – a moment of radical flux or change – that universal juridical order will have boxed itself in to where it cannot act in that moment of decision.  It will be destroyed as a result.

What Schmitt is saying is that since the state is the highest expression of sovereignty states that submit themselves to law lose their sovereignty.  And since states are the evolved outgrowth of the legitimacy and will of the people, when a state ceases to be sovereign its people cease to be sovereign as well.  This is bad according to Schmitt because it denies the fundamental principles of what it means to be political: Sovereign, and sovereign concerning the questions of decision and who to include and exclude from the body (political community).  A state can only be sovereign when it controls law.  (And therefore also has the power to suspend law for the safeguarding of its own sovereignty.)  A state that is subject to law is no longer sovereign.  (And therefore is now subjected to the dictates of law and possesses no say over any matter – it cannot make decisions for itself.)

Schmitt thinks that we are always in a state of making decisions.  Thus, to deny the ability to make decisions, to control how one is to act, is the abdication of sovereignty.  Legal positivism seeks to erode all notions of sovereignty by becoming the unitary and universal legal norm that everything else is subject to.

This returns us to Giorgio Agamben in his work Homo Sacer.  Bare life (zoe) is to be stripped of social recognition.  It is to become powerless.  Which is to say to be without sovereignty.  You are completely at the discretion and decision-making of others.  Often with terrible ramifications for you.  Political life (bios) retains power to make decisions.  Which is to say only political life retains sovereignty.  With that sovereign power it controls all decision-making, and can decide who is a member of the bios and who is not (essentially casting such people in the zone of zoe).  Of course, Agamben takes this in a starker direction that Schmitt never did.  For Schmitt, those who belong to a political community remain sovereign as long as the state is sovereign.  The legitimacy of the state rests in the will of the people (to remain sovereign) in Schmitt’s thinking.  That is, the state will remain the legitimate sovereign only as long as the people allow it to be.  While the people are not sovereign per se, their state is sovereign which makes them sovereign.  Agamben suggests that this is not actually the case.  Even if you are a member of a political community that is purely conventional.  Your status of being a member of the bios is completely discretionary and up to the decision of the state to decide whether you are still considered a member of the community or not.  Which means since only the state is what is truly sovereign all people, whether a member of the community or not, are actually zoe.  For if you become a threat to the state’s sovereignty it will kill you – you will become an enemy of the state.

Nevertheless the core of Schmitt’s second essay in Political Theology deals with the problem of sovereignty.  Schmitt is eternal and stands the test of time insofar that he was the first major theorist and writer to explore the tensions and problems of sovereignty.  And what he concluded is as such:

• Sovereignty is he who decides on the exception.
• Sovereignty, as he who decides on the exception, possess power.
• Sovereignty is about the power to decide (or act).
• There is a contest of sovereignty between the state and law.
• The state is what is actually sovereign. (And the highest expression of sovereignty is bound up in states.)
• When states subject themselves to the dictates of law they are no longer sovereign.
• Decisionism, not legal positivism, is where sovereignty is found. (This is so because we’re always in a state of making-decisions.)
• Making decisions is what it means to be political. Decisions as how a community is to act in its interests.  Who is to be included as a member of the community and who is to be excluded.
• Legal Positivism has no basis in reality, and if followed, will lead to the demise of peoples and states.

Schmitt, following Hegel, argues that the sovereignty of the people is now bound to the sovereignty of states.  Since human sovereignty rests in sovereign citizenry a state that has subjected itself to any outside force (whether it be positive law or some other type of rules system from other countries or blocs or unions) is no longer sovereign ergo the people are no longer sovereign.  The state is enslaved therefore its people are also enslaved.  This is because in Schmitt’s political theology, just as people are “free in Christ” (a concept found in Christianity, e.g. fulfilled in Christ), citizens are free in their sovereign community (e.g. fulfilled in the national community).  When the body dies people are no longer free and fulfilled but enslaved and at the mercy of others – they have lost their sovereignty, they have lost their freedom; Schmitt is articulating the view that positive law, whether established domestically or from an outside nation or union, eliminates sovereignty.  Thus we reach the problem of sovereignty: Is sovereignty found in systems of laws or is it found by remaining outside of the law?  What are the consequential ramifications of sovereignty if sovereignty is about remaining outside the law?

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Hesiod, Paul Krause in real life, is the editor-in-chief of VoegelinView. He is writer, classicist, and historian. He has written on the arts, culture, classics, literature, philosophy, religion, and history for numerous journals, magazines, and newspapers. He is the author of The Odyssey of Love and the Politics of Plato, and a contributor to the College Lecture Today and the forthcoming book Making Sense of Diseases and Disasters. He holds master’s degrees in philosophy and religious studies (biblical studies & theology) from the University of Buckingham and Yale, and a bachelor’s degree in economics, history, and philosophy from Baldwin Wallace University.

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