Crisis, Modernity, Authority: Carl Schmitt on Order and the State

By Mcloughlin, Daniel | The Australian Feminist Law Journal, December 2009 | Go to article overview

Crisis, Modernity, Authority: Carl Schmitt on Order and the State


Mcloughlin, Daniel, The Australian Feminist Law Journal


The past decade has seen an explosion of interest in the political problem of the emergency, and legal powers that are appropriate to deal with such situations. This is in no small part due to the persistent sense of crisis that plagues the politics of our time, from the collapse of the Twin Towers to that of Lehmann brothers, from the fin-de-siecle threat of Y2K, to the impending climate catastrophe. This period has also seen a flowering of interest in the work of the jurist Carl Schmitt, whose Political Theology opens with the now infamous assertion that 'Sovereign is he who decides on the exception'. That is, according to Schmitt, even the most impeccably liberal state needs to suspend the law to restore political stability when it is faced with an existential crisis. This work has provided a focal point for analyses of contemporary crisis politics, with a particular purchase on the War on Terror, whose political rhetoric of the threat to our 'way of life', and extra-legal executive practices such as torture, wiretapping, extraordinary rendition, and military tribunals, have had distinct echoes of Schmitt's analysis of the exception. An equally important aspect of Schmitt's work is, however, his critique of liberalism as a philosophy of 'neutralisations and de-politicisations', that is predicated upon endless discussion and economic and technical solutions - an analysis that has considerable critical purchase on the 'post-political' tenor of our times, in which ostensibly left wing parties seek to occupy the 'reforming centre', and the market rationality of neo -liberalism dominates the political horizon.

In this paper, I bring together these two elements of Schmitt's thought, and these two aspects of contemporary politics, by highlighting their philosophical underpinnings in a critique of the relationship between poUtics and form. Drawing from across Schmitt's work, I argue that his thought is fundamentaUy structured by an antinomy between the juridical form of poUtics and the technical form of instrumental reason. For Schmitt, the juridical form ascribes substantive value to the world through the decisions of authority while, in its value neutraUty, the technical form is unable to found the poUtical, which requires a decision for an idea and against its enemies. For Schmitt, UberaUsm was the dominant form of instrumental reason in the poUtical sphere of his time, and in the context of a profoundly fractured party poUtics, he beUeved that its value neutraUty posed a threat to the survival of the poUtical form of the Weimar RepubUc. Against the formaUsm of technocratic UberaUsm, Schmitt's work on emergency powers then advocates an authority to decide for the constitution, and against its enemies, thereby restoring law and order.

Having examined this antinomy in Schmitt's work, I conclude by considering how this might offer us tools for thinking about the contemporary poUtical consteUation, by looking at more recent Uterature on the exception, UberaUsm, and the War on Terror. In his State of Exception, Agamben draws upon Schmitt's analysis of state sovereignty to argue that the exception has, over the course of the twentieth century, become a 'paradigm of government'. In an analysis that has echoes of Schmitt's critique of UberaUsm and the technical form, Wendy Brown attributes contemporary security poUtics to the rise of neo-Uberalism, and the instrumentaUsation of law that has occurred with the extension of market rationaUty to the poUtical sphere. I argue that these developments undermine the attempt to use the exception to protect the constitution as political form, instead, leading to a hoUowing out of the Uberai democratic state. The contemporary use of the exception is neither the assertion of a poUtical idea nor the production of order, but rather, a symptom of the disorder and instrumental reasoning of our neo-Uberal times.

1.0 THE POLITICS OF SOVEREIGNTY

In The Concept of the Political, Schmitt writes that 'aU poUtical concepts, images, and terms have a polemical meaning. …

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