Natural Law, Divine Rights, and the political theology of Carl Schmitt

Antoinette points out that property law is an innovation required by feudalism, insofar as the monarch and his lords required a means to transfer use and possession of the land to the peasantry while maintaining their fundamental sovereignty (understood by the phrase, “Every man’s home is the King’s castle.”) She suggests that the capacity to promise is jurisprudentially and historically prior to property relations. I like this account, if only because it shows the fundamental difference between Roman juridical theory and the Anglo-European legal theory.

While I don’t know much about Roman jurisprudence except what I’ve learned from Giorgio Agamben, I suspect that the Romans would have been primarilty interested in potencies and powers, and thus focused on the contract as the instantiation of the potent and profoundly human ability to speak for the future. The rights-discourse that liberalism favors is only possible under the auspices of the Christian God, who leases out properties like intelligence or goodness, but expects a return on his investment! Check out the parable of the talents, for instance.

The strange interplay in political philosophy between social contract theory and natural law still requires some explication, however. I think the solution has to do with the way that Hobbes and Locke posit natural rights as prior to the contract. Especially for Locke, and arguably for Hobbes, the naturalness or God-given nature of rights serves to delimit the sorts of things that a culture can contract away, and puts some common sense limits on the expected law ‘n’ order required in exchange for allegiance to a sovereign.

This brings up an interesting point from my earlier post, which is that the state’s stabilization of the flux and flow of social life does not account for its unique decisive power. Beyond the mere reflection or correspondance of the state to the general situation, the institutions of the state develop the capacity to intervene, to create a new situation through policy dictates and legislation. Political thinkers like Hegel argue that this power to intervene reflects a corresponding power in one subsection of the people: the rich, acting together, can engage in projects that have similar decisive power. They can hire mercenaries, engage in large scale projects for the public good, keep a staff of firefighters, etc. On this account, the state takes on this role at the behest of the noble rich, basically coordinating their efforts.. Our allegiance to the sovereign or our obedience to the executive is dependent upon his continued respect for the contract we have made to provide these services. Under liberalism, we only make such contracts in order to further preserve and cultivate our property.

But I’ve been reading a lot of Carl Schmitt, lately, so I’m much more attuned to another element of state institutions, one that has again become obvious to us after 9/11. States can take decisions that do not meet with the approval of their constituents. Hegel thought that the monarchical executive was unavoidable, because committees and oligarchies are hamstrung by their plurality. The will is necessarily singular, even when it governs a nation-state. But Hegel thought that the executive would tend to support the rule of law, maintaining basic class divisions while attempting to preserve his own legitimacy by ruling wisely and well. Schmitt says, quite simply, “What if he doesn’t?” What if the King, or the president, or the chancellor, takes up the reins of power and jerks them sharply?

Given the appropriate occasions (a fire in the Reichstag, a group of airplanes used as bombs, a war we are losing) the executive can justifiably say that we need to turn on a dime, do things drastically differently, and that there is no time for discussion and dithering and incessant chatter. “I made a decision. America will not wait to be attacked again. We will confront emerging threats before they fully materialize,” could just as easily become Hitler’s defense of the Night of Long Knives: “If anyone reproaches me and asks why I did not resort to the regular courts of justice, then all I can say is this: In this hour I was responsible for the fate of the German people, and thereby I became the supreme judge of the German people.”

I’m not equating Bush with Hitler (though the parallels are pretty spooky), but I think it is clear that executives become more powerful under states of exception, and only the executive can declare that state of exception. This strange interruptive power will always upset the regular order of governance, and it seems to be built into the basic structure of the decision. So when Heidegger turns to eventuation, you might say that he’s simply pointing to an inadequacy in the metaphysics of Being that seeks to suppress Becoming. You can’t hold back the event, so why get comfortable with the world as it is when it’ll inevitably change? It’s not that we need to amend the executive’s powers, it’s that the decision regarding wartime powers and executive privileges will eventually fall to someone. It’ll eventually be the swing-voter on the Supreme Court, or that one Congressman, or somebody, who actually makes the decision. It may be a moving target, but wherever it lands, that’s the sovereign.

During the month of November, 2000, the sovereignty of the United States of America switched from Florida swing-voters, to Katherine Harris, to Sandra Day O’Connor! They made the decision, and the rest of us watched, and because we couldn’t fathom the loss of the rule of law, and everything the state stands for and against, we went along with the decision. That’s how decisions work, and all because the state isn’t simply a reflection of the people, but rather constitutes the people that it reflects. Like a son who looks like his father, the people see their will reflected in the actions of the State because they have been molded by it. It’s not really sufficient, then, to say that its sovereignty is simply on loan from the people.

I’m not sure I like the direction that line of thought goes.

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