Paul Kahn’s brilliant and timely text must be welcomed for many reasons; in particular, for the way it re-introduces in the field of constitutional law and legal theory the debate on sovereignty and political theology that has been unfolding over the last decade in the humanities. The attention to the sacred with respect to the question of law is appreciated, as is the emphasis on “state violence,” which for Kahn also necessarily requires a theologico-political perspective.
I come into this debate at the very end, with the benefit of hindsight and having taken stock of what has been already written and discussed by the author and the reviewers. Others have focused on several relevant aspects of Kahn’s re-elaboration of Schmitt’s themes, and their translation, or mistranslation, into the context of contemporary American politics (for instance, the curious association between Schmitt’s work and a philosophy of freedom). I agree with many of the comments on this philological quotation/re-signification of Schmitt, especially with most of Jean-Claude Monod’s contribution, as well as the emphasis on the “geopolitical imperative” (to quote Anders Stephanson’s title) with regard to the debate the book opens.
Kahn’s book represents an attempt to “think with Schmitt” in order to tackle, unambiguously, the fate of the state of exception in recent American domestic and foreign policy. According to Kahn, political theology is needed to counter the limits of the political doctrine of liberalism for comprehending the shape of the contemporary American definition of the “concept of the political,” to use Schmitt’s terminology. Indeed, opposing legal positivism as well as contemporary re-incarnations of natural law theory, Kahn locates, within the frame of the constitution, an ineffable remainder or excess—violence, the sacred—that liberal legal theory cannot subsume.
Kahn’s effort is aimed at focusing the debate on the political on the question of the exception, as opposed to the norm. (“The concept of popular sovereignty links the Constitution—and thus the Rule of Law—to the Revolution, and thus to the exception”). Political theology is thus presented here as the “mirror image,” or inversion of liberalism and any such theories that “ignore the exception.” Political theology, writes Kahn, locates “sacrifice” in the place where liberal theory locates “contract,” that is, at the source of political community. We could add that political theology operates at the level of essence, not appearance. It finds its roots in revolution, as foundation of the law, as well as in revelation as a fundamental register of the political.
Hence, the tenets of liberal positive theory are opposed in Kahn’s book via recourse to questions of state violence, revolution, terror, and sacrifice as the key political categories that are the platform for a post-foundational constitutional theory and juridical doctrine. That is, what is presented here as the underlying objective basis of the political, instead of Kant’s categorical imperative-as-transcendental judgment, is the immanence of popular sovereignty embedded in the Constitution. Or, if we interpret somewhat freely: instead of the fullness of Kelsen’s foundational law or Ground Norm, the absolute void of Ground Zero.
Indeed, Ground Zero, although not explicitly referenced, is a spectral figure in Kahn’s text, as a ghostly evocation, as the perverse core of a foundation-less political ontology, as the dénouement of the law’s tautological nature. If political theology is the “mirror image” of liberal theory (“not law but exception; not judge but sovereign; not reason but decision”), we could consider Ground Zero as the inverted, opposite reflection of Rawls’s “original position,” undisclosed after the proverbial veil of ignorance has been ripped away (and Rawls is one of the main implicit interlocutors of this text, as Kelsen was for Schmitt). Ground Zero, appears thus unconcealed, standing for the empty locus of power, as in Claude Lefort’s conception of democracy, which takes the form of a question in his seminal study on the “permanence of the theologico-political.”
Kahn identifies as the main contemporary political problem the question of the unmediated and unlimited sovereign decision over the space of that void, beyond any norm, even ground norm. “The defining conceptual struggle of our political age is whether the response to terrorism should be thought of a matter of law enforcement or as a matter of war,” asserts Kahn, quoting a recent key article in the Harvard Journal of Law and Public Policy. Thus, the problem of terror, or, more precisely, a war on terror without end, which immanently violates and transforms national and international law as it unfolds, is the background of the discussion explored in this text. There is a genealogy that is implicitly evoked in the book, in its emphasis on the limitations of liberal theory to address the present state of things and its source in the “terrorist threat.” This is the genealogy of modern liberalism, universal rights, and the contemporary source of the political doctrine of terrorism, famously located in the Terror of revolutionary France, as well as in the actions of then-labeled “terrorists” of the original Tea Party, and the American revolutionary war (the historical event often quoted by Kahn as foundation of the power of the American Constitution).
This evocation, which could be read between the lines of Kahn’s arguments, leads to what I would paraphrase as one of the book’s main corollaries, as I see it, which could be summarized as follows: the problem that all justice is, in the end, revolutionary justice. Thus, Kahn’s book is a terrific tool to render open a debate in the current geopolitical moment, in which it seems that certain minor, yet perhaps key steps have been taken in the direction of the dismantling of the state of exception de facto implemented in the last decade. The text references in particular legal and historical documents on the pronounced disdain for internal regulations and global jurisdiction enacted by the U.S. executive, as well as the location of the authority of that Executive above and beyond the control of the law, as stated by the U.S. Department of Justice.
The main framework of the text deserves praise for its emphasis on a revelatory and sacrificial notion of the political. However, one may also note a theoretical sleight of hand in Kahn’s work, whereby critique becomes “neutral” phenomenology, and political theology is transposed onto an extreme version of liberal theory. This slippage is most evident in the passage from exception to exceptionalism, from situated critique to apparent neutral description; in sum from the study of the American state of exception to a view on America as an exceptional state. As other participants in this debate have already pointed out, this slippage occurs in particular around the dubious generalization about “Americans,” which is a key indexical term operating in many of the main arguments in this text. This salvage of a unified national(ist) subject as the locus of popular sovereignty paves the way to the analogous slippage from “we the people” to various instantiations of “we” and “us,” which in my view undermine many of the important assertions that the text offers.
From the viewpoint of governance and geopolitics, we can observe many continuities between recent administrations of seemingly opposite political orientations. The alleged religious undertones audible in the “deep pragmatism” of the ghost-writers of current governance, their underwriting of a spectral global sovereignty might not be all that different from a previous political theology of mythic war and suspension of national and international law. Indeed, some of the personnel in charge of the Treasury, or war and defense operations, have, pragmatically, remained the same.
A similar structure of sovereignty, of revelation-as-revolution, might still be in place. And yet, these continuities do not grant the certitude endowed in this text to the all-encompassing figure of the “Americans,” or the generalizations about “American ” legal theory or political doctrine. Even at that level of the juridico-political there exist certain ruptures which reflect aspects of sheer historical difference (historical, cultural, political, ideological, or ethnic) present in the spectrum of this apparently unified national “popular sovereign.” It remains unclear how these differences can be put to the side—unless “America,” as a central political category of our times, is considered as yet another theological category that has become secularized, as Schmitt claimed of most all-encompassing modern concepts relating to “the doctrine of the state.” In Kahn’s book, we might find the liberal, secularized version of the conservative credo on a national manifest destiny.
And yet, the slippage from exception to exceptionalism produces assumptions that are quickly taken for granted, undermining some of the book’s own premises. It is not readily apparent that a “global sovereign” would dismiss international law and global jurisdiction only on the basis that those are allegedly “not founded on popular sovereignty.” Similarly, a global sovereign conducting over the long term a Schmittian politics pivoting on the absolute distinction between friend and enemy through “state violence”—directly or by proxy—will constantly encounter opposing threats from actors that are more than “imagined potential enemies.”
Such an outcome appears more likely when one considers the logic of sacrifice. Kahn offers an impressive reflection on this topic, and its centrality for political theory and international relations. Yet this perspective is oddly one-sided. Sacrifice most commonly refers to “an act of slaughtering an animal or person or surrendering a possession as an offering to a deity.” Kahn, however, focuses on self-sacrifice, the risking of one’s own life in the pursuit of political transformation by revolutionary means. It is an angle that leaves little said regarding those acts of “mythic violence” that would found the law through the sacrifice of the other. After all, it is Abraham, not Isaac, the focus of the reflection at the end of the book, who performs the sacrifice upon hearing the “command of the sovereign God.”
Finally, I will elaborate on a broader point. In his pursuit of popular sovereignty as the locus of the legitimacy of the Constitution, Kahn displaces sovereignty to the realm of the ordinary, in the everyday practice of ruling by decision within courts of law, and in the authentic “existential choices” that individual citizens make as members of a larger popular sovereign. Beyond the theoretical discussion on where popular sovereignty actually resides within a liberal democracy (from Rawls to Derrida’s Rogues), this approach recalls a different, if related, perspective on law and violence than that of Schmitt. Walter Benjamin’s conception of sovereignty and exception emerged from an implicit conversation with Schmitt’s work on political theology and elicited explicit responses from the latter. The Möbius strip of correspondences between Schmitt and Benjamin (different commentators argue about who was responding to whom in that intellectual debate), even if opaque, fits well with the perspective on sovereignty presented by Schmitt.
Kahn, seemingly falling back into the main principles of liberal constitutional theory, conflates two levels, or two scales, of legal decisionism. But here the blindness of justice produces a blind spot. Something exceeds the implicit analogy between sovereign decision—which is always already theologico-political—and the minor scale of sovereignty in terms of jurisdiction, as exercised by courts. Benjamin’s proverbial dialectical distinction between the violence that founds the law and the violence which preserves the law illuminates the remainder at play in that fast operation that runs through Kahn’s book. The text has the virtue of locating in the original historical context of revolution the moment of emergence of a violence that founds the law. Yet courts of law, enacting the power of jurisdiction, solely embody, through localized judgment, a mythic violence that conserves the law.
Moreover, a theoretical hypothesis which haunts the text through various scattered references, that of the possibility of the sovereign destruction of the whole world—of a force founding sovereignty on a global scale—articulates perfectly with the other type of force defined by Benjamin: divine violence. Benjamin’s divine violence refers to an absolute anomic violence, residing beyond any juridical order, as the tain of the law’s mirror, as a violence of pure means without end, which opposes the law and legally mandated violence. Benjamin ascribes to it an enigmatic “bloodless” character, which would accommodate the question of nuclear power invoked often by Kahn.
The book’s emphasis on sacrifice and death gives it a mournful tone, which seems to reflect a contemporary landscape in which legal theory and historiography, in the context a of war without end, of violence as pure means, becomes a “play of mourning.” This is not unlike the historical backdrop of Benjamin’s study of political sovereignty in the German baroque drama, where he paraphrased Schmitt, crucially displacing his notion of exception. Schmitt’s political theology was a perspective on the alleged inaction and the dead-end “crisis of parliamentary democracy” as well as on a profound crisis of consciousness of the concept of the People in a specific nation-state, at a precise historical moment. Kahn’s invocation of this doctrine in an altogether different space and time highlights interesting potential parallels. Kahn’s analysis of the competing juridico-political terrain of the American “response to the threat of terrorism,” ends with a description of liberal democracy as a system that cannot localize the place of the power to decide. There is more than a tacit invocation of Schmitt in that passage.
In this contemporary moment of history as a politics of mourning, the figure of the sovereign might correspond to the one studied in Benjamin’s treatise on the Baroque. This mannerist sovereign “excludes exception,” endlessly deferring the moment of decision, incapable of achieving judgment in a political world managed by courtiers and intrigants. Our present might belong to the figure of the Bataillean sovereign, destined to be sacrificed by the logic of sovereignty itself.