Paul W. Kahn’s “reiteration” of political theology avoids many misunderstandings of the term as conceived by Carl Schmitt. Kahn sees, for instance, that political theology is not a fundamentalist politics directly inspired by God or the Holy Spirit; nor is it the subordination of secular politics to a peculiar religion. Rather, political theology follows the insight that politics deals not only with reason, law and norms, but also with will, decision, and exceptions. It theorizes the sovereign will as that which decides on the exception.
Kahn wants to show the relevance of this view to American politics, which requires making room for dimensions of politics slighted by liberal theory and theories of justice. Domestic or international, politics in the “state of nature”—that is, still awaiting rational regulation—is not, or not simply, defective, since politics, as Schmitt points out, is never purely a matter of following norms. It’s also a matter of will and of “existence.” This existential dimension will always privilege exception over norm, as long as the existence of the people or the nation is at stake. Or perceived to be at stake.
On the level of the “facts,” this diagnosis is hard to dispute. A very good illustration can be found in recent American foreign policy. Like Kahn, I’ve defended (in a paper called “Vers un droit international d’exception?” and in my book Penser l’ennemi, affronter l’exception) the idea that the USA could be seen as a de facto sovereign in the current international situation, at least in Bodin’s sense: they “have nobody above them.” As the Bushian “War on Terror” shows, every international norm, including the norms of the Geneva Conventions, can be suspended as long as this “sovereign“ decides that it faces a state of exception that gives it “emergency powers.” This practice and view have been supported by Bush administration lawyers such as John Yoo, who has deployed arguments very close to those used by Carl Schmitt during the Weimar and Nazi periods in order to defend the presidential prerogatives or the extensive rights of the Führer, the “source of every law.” But even disregarding analogies to Schmitt’s support of the Nazi regime, the question is: what value should we grant to this, to the “fact” that a “sovereign” can indeed see himself as “above” every norm as long as he states that national security is at stake? Should we accept this view of sovereignty and concede that it is legitimate or inevitable that “sovereigns” can suspend the norms of the Geneva Conventions, treat their prisoners as “alien enemies” and deprive them of most of the basic rights which have been granted to war prisoners during the twentieth century, because, following 9/11, we are all in a “exceptional situation?” Should we admit, as the Bush administration suggested in one memorandum, that torture itself should be accepted as a legitimate means “in exceptional circumstances?” Or should we struggle against this logic, not, of course, in the name of any “political theology” or Schmittian concept of non-liberal democracy, but in the name of our view of what a democracy should be, even in times of “exception?”
I’ve always defended the latter view, and I was happy to see that the Obama administration reintroduced a more “democratic” view of international relations, a respect for the Geneva Conventions, a moral condemnation of torture and of the conditions of “indefinite detention” in Guantanamo, and a criticism of a certain view of American “exceptionalism.” Of course, even in this supposedly more democratic framework, the question of exception and sovereignty does not disappear, so we can say that we still have to deal with Schmittian questions—I would entirely agree with Kahn on this point. But my worry is that the philosophical approbation for political theology risks participating in a justification of an attitude that sees no alternative to conceding “sovereign rights” in exceptional circumstances.
I agree with Kahn (and with Schmitt) about the fact that political theory should leave room for decision and exception. But to me, the main question is: to what extent? Are there no principles that admit no exception? When I read Kahn, as when I read Schmitt, I don’t seem to encounter any such principles—anything like what Habermas thematized in Law and Morality as “indisponibility,” that is, rights that are not at the disposal of the sovereign. Can the sovereign decide that torture is a legitimate practice? The answer, to me, should be no without exception. Kahn would perhaps respond that even if it is an illegitimate practice, it can be made legal by virtue of a political decision. “Torture is the exception outside of law, but the state may be legally justified in defending itself,” he writes at one point in a comment on a decision of the Israeli Supreme Court, apparently persuaded by its logic. It has always been the same (and, according to me, awful) argument, used by some French military officers during the Algerian War, or by the dictators of the Near East who are today falling one after the other, in part as a result of their disregard for human rights and the norms of habeas corpus.
The famous argument of the ticking time bomb, evoked without criticism by Kahn, proves to be a failure of juridical imagination. First, by such an extreme hypothetical case, it is possible to legitimate any practice by contrasting the prohibition you want to challenge to the possibility of state, national, or—why not?—human annihilation. (It’s significant that Kahn feels the need to reinforce this pseudo-argument by saying that this bomb might be nuclear, and that, in a situation that is not specified, the use of torture could here save the state from annihilation: “Implicit in the hypothetical [of the ticking time bomb] is the idea that the bomb might be nuclear. Without an exception to torture prohibition, we face the possibility of the nuclear detonation, that is, we imagine the death of the state.”) Second, the fact is that this argument for the “vital necessity of torture” on the logic of self-preservation has been recently used to legitimate de facto torture in cases where, of course, no such threat could be alleged. Is it this kind of exception that Kahn’s political theology intends to defend? The book’s conclusion suggests that “we” are all, as western citizens, soldiers in the “war on terror”:
The contemporary war on terror represents the point at which conscription becomes truly universal. . . . Conscription can now occur to anyone at any moment: It is just a matter of finding oneself on the wrong airplane at the wrong time. At that moment, there will be no discussion, there is only the act.
In this political ontology, the war on terror is constituted as a permanent condition. But this was precisely what was so false and dangerous in the Bushian conception of the struggle against terror, which was presented as a real war—not against a state (indeed with not definite enemy) and not having a beginning or an end—but a war indefinitely “open,” in which the U.S. would be free to launch as many preventive wars as the would judge necessary. Here Schmitt, the author of The Nomos of the Earth, could be useful in deconstructing this confusion of traditional categories of international law, a confusion that transforms the category of war, which applied to the relationship of one state toward another (two sovereigns!), into a permanent condition, with no precise enemy, no possibility of a negotiated peace. Further, we could add, echoing Agamben more than Schmitt, that the domestic consequence of this confusion is the limitation of liberties in the name of this indefinite state of exception.
Here is the last point of my perplexity: how can Kahn claim that freedom is the center of Schmitt’s thought? I put aside Schmitt’s 1938 book on Hobbes’s Leviathan, where he claims that Hobbes’s distinction of an inner faith and a external confession opened a space for freedom of consciousness, which, with “the first liberal Jew, Spinoza” and his followers Heine and Marx (!), was to become a principle fatal to the organic State. Already in Political Theology, Schmitt is radically opposed to all the theorists who put freedom at the center of their political conceptions and demands. How can one claim that a thinker who approves Joseph de Maistre’s motto, “tout gouvernement est bon lorsqu’il est établi” [any government is good as soon as it is established], puts freedom at the center of his thought? The last chapter of Political Theology is devoted precisely to defending all those Catholic antimodern thinkers (De Maistre, Donoso Cortès, Bonald) who refused to consider freedom as the key to political organization. They wished to put obedience in its place, mainly through the theological argument of original sin (coupled with historical arguments evoking the disorders of revolution). Kahn’s strange interpretation of Schmitt as a thinker of freedom can be explained when we finally grasp Kahn’s own conception of freedom, namely the freedom to sacrifice for a “sacred” authority—God or the nation-State. So Kahn calls freedom what is generally called “obedience,” self-sacrifice, or “duty.” In the conclusion of the book, Abraham’s acceptance of God’s will becomes the paradigm of freedom. But is the will to ultimate sacrifice in obedience to an absolute will a good example of political freedom?
I let the reader “decide.”