Not for the squeamish

Paul Kahn has written a remarkable meditation on Carl Schmitt’s Political Theology. A truly adequate response would undoubtedly require a book at least as long as Kahn’s own. Instead, I want to offer some comments playing off of some of Kahn’s own observations. Indeed, as Kahn makes clear, his own book is meant to be, not a genuine exegesis of Schmitt’s (in)famous book, but rather his own reflections that have been stimulated by taking the concept of “political theology” seriously. I find Kahn convincing that the concept draws not only on the notion of “sovereignty,” insofar as it is transferred from God to those who claim “leadership” of the state, particularly when it is faced with existential threats, but also on the important reality of “sacrifice.” As he notes, the liberal tradition going back at least to Hobbes has literally no way of explaining why anyone would give his/her life “for the state,” given that the purpose of the state is to protect the individual’s security. Hobbes notably denied that a criminal sentenced to capital punishment has any obligation to accept his fate without attempting to escape. (The state, to be sure, has no duty to honor such an escape, but that is an assertion of state power rather than an argument that the prisoner is obliged to submit to his fate without challenge.) The Schmittian (and Kahnian) state, therefore, is not for the squeamish.

There are, of course, many ways of reading Schmitt, depending, I suspect, on the reasons that one is led to Schmitt in the first place (and the particular texts from Schmitt’s long and prolific career that one wishes to emphasize). Kahn treats Schmitt primarily as a jurisprude and political philosopher. Although he is well aware of Schmitt’s biography, including, obviously, his fateful alliance with Hitler and the Nazi Party in the 1930s, he focuses on the enduring importance of Schmitt’s ideas for those of us who, almost a century later, are struggling to think about the meaning of “law” and, more particularly, the degree to which law allows for human freedom. That freedom is captured, most expansively, in the idea of “sovereignty,” i.e., the ability to transcend or transgress legal commands when the situation warrants. One will find in Kahn’s book no discussion of the tortured politics of Weimar Germany, nor of Schmitt’s brilliant critique of parliamentary democracy. Anyone whose interest in Schmitt derives at least in part from worries about the “Weimarization” of American politics in the twenty-first century will find little in this book of interest. On the other hand, if one agrees, as I do, that Schmitt is one of the key jurisprudential thinkers of the twentieth century, Kahn’s meditations are catnip (or caviar). One can only hope that the book gets the wide readership—and, more to the point, discussion—that it deserves.

Very near to the beginning of his meditations, Kahn writes that “Rawls and his followers never took seriously the violence of the state.” The fact that for half a century we lived under the threat of “[m]utual assured destruction never appears within liberal political theory. . . . The defense policies of the United States are always seen as somehow exceptional—more transitional arrangements than expressions of national identity,” or, one might say, than an essential feature of the polity. Thus, he writes, “If we are to understand state violence as no less an expression of political identity than law, we must take a perspective upon ourselves other than that offered by liberal political theory. We must take up the perspective of political theology, for political violence has been and remains a form of sacrifice.” Indeed, writes Kahn in the conclusion to his book, “Not reason but decision describes that most characteristic of all political acts: killing and being killed for the state.”

It is no coincidence that Kahn has also written one of the most probing—and troublesome—meditations on torture (Sacred Violence: Torture, Terror, and Sovereignty), nor is it coincidental that one finds in that title the keywords of his new book. But note one important difference between torture and, say, “mutual assured destruction,” or the encouragement of citizens, whether through conscription or through a “volunteerism,” to join the armed forces. Torture is quintessentially directed against the other (and the Other). Indeed, I have elsewhere argued that the essence of torture is ultimately less the infliction of any given technique of torture (e.g., waterboarding, sleep deprivation, etc.) than the creation of a phenomenology akin to that of slavery, in which, as in Chief Justice Taney’s notable claim in Dred Scott, the person tortured “has no rights that those doing the torture must respect.” It is the abject denial of the most basic claim of liberal political theory, that all individuals possess some ineluctable (and inalienable) body of rights that cannot legitimately be transgressed.

One can certainly speak of torture as a mode of sacrifice, but only as one comparable to the sacrifice of animals, rather than that which Kahn has in mind. (And, of course, one is free to evoke the Akedah—the submission by Abraham to God’s sovereign command to slay Isaac, which is prevented only by God’s arbitrary decision to substitute a helpless ram for the equally helpless son.) The sacrifice suggested by “mutual assured destruction” or by service in the armed forces, however, is the willingness, contra Hobbes, to give up one’s own life on behalf of the sacred cause. I am old enough to remember when it was accepted as a self-evident truth that one would rather be “dead than red,” which meant nothing less than that one accepted the legitimacy of the threat to obliterate the entire world rather than accept surrender to the Communist menace. It is that willingness that Kahn is at pains to explain through his explication of political theology. “For Americans,” Kahn writes, “the rule of law is not that which eliminates the need for the violent defense of the nation, but that for the sake of which violence is deployed.” He also refers to “our easy recourse to violence, and our willingness to sacrifice,” which includes, crucially, not only the lives of the victims of American violence, but also some number of those who inflict the violence in the first place.

These are fundamental questions, well worth the emphasis that Kahn places on them. I want to suggest, however, that one important facet of “American exceptionalism” is its denial that violence is the unique prerogative of the state. Here, we must confront the specter of Max Weber. The great German sociologist, who died just as Weimar was coming into being, for better or worse, appears in Kahn’s book, but only as the theorist of an ultimately freedom-killing notion of bureaucracy (notably described by Weber as an “iron cage”) that, if operating according to at least ideal-typical norms, would successfully suppress any notion of creativity and personal discretion in favor of rigid adherence to the norms of law. It should be clear that Kahn finds such a vision dystopian in the extreme, and there are many eloquent paragraphs celebrating the priority of existential self-creation over submission to generalized norms.

But Weber is also famous for defining the state as possessing a monopoly over the legitimate use of violence (which could, presumably, range from ordinary policing to torture to sending ICBMs across the skies to Moscow—or, perhaps, Tehran). It should be clear, however, that this is a highly controversial assertion, whether one treats it empirically or normatively. Quite obviously, as an empirical matter, any revolutionary (or “insurgent”) political movement rejects the state’s exclusive prerogative to decide when recourse to violence is legitimate; at the same time, such movements make normative arguments as to why their rejection of the state’s putative monopoly is itself legitimate. The United States itself owes its foundation to a violent revolution in which “patriots” defined themselves as “insurgents.” Moreover, the constitutional order established in 1787 professes to rest on the bedrock of popular sovereignty (“we the people”), a shared interest of Schmitt and Kahn alike inasmuch as it suggests the ability of “the people,” even if viewed normally as a sleeping giant, to awaken and exercise its sovereign capacity to transform the existing order. After all, many American state constitutions included explicit recognition of the right of the people to “alter or abolish” existing government whenever they thought it desirable to do so.

One might hope that alteration or abolition would be peaceful, but that is contingent, among other things, on the willingness of those in power to accept (and submit to) the “winds of change” instantiated in popular movements or uprisings. If they resist, and invoke the state’s purported “monopoly of violence,” they may discover that many of “the people” have something else in mind, including recourse to their own means of violence, however obtained.

The American approach to the means of violence is especially interesting, though, inasmuch as the Second Amendment to the Constitution, however one interprets it, appears to deny the Weberian monopoly at the very least to the national government and, if one has a latitudinarian interpretation, even to state governments as well. The Supreme Court, in its recent decisions ostensibly concerning the Second Amendment, has made a complete hash of the Amendment’s actual history, inasmuch as the majority, including Justice Scalia, is clearly “embarrassed” by its civic-republican origins and its potential legitimization of an insurrectionary populace resisting what they believe to be political tyranny. Instead, the majority turns the Second Amendment into a protection of an individual right to protect oneself in one’s household against criminal depredations. I cannot help but wonder, then, whether Kahn agrees, not only that this is a colossal failure of intellectual nerve, but also that it represents a willful evasion of the violence and potential sacrifice—either of others or, ultimately, even of one’s self—that is suggested by any serious grappling with the notion of popular sovereignty and the “theology” underlying it.