Crediting God: Sovereignty and Religion in the Age of Global Capitalism

10. Natural Right and State of Exception in Leo Strauss

c h a p t e r 1 0 Natural Right and State of Exception in Leo Strauss Miguel Vatter In his work on the state of exception, Giorgio Agamben relies extensively on the study of emergency powers made by an American political scientist, Clinton Rossiter, in a 1948 book entitled Constitutional Dictatorship. Rossiter shows that when constitutional democratic governments have faced severe political or economical crises, they have not hesitated to employ dictatorial means in ‘‘an unconscious but nonetheless real imitation of the autocratic methods of their enemies.’’1 He goes on to claim that modern democracies differ from totalitarian regimes on this count because in democracies the state of exception is itself used only exceptionally. Agamben ’s thesis, on the contrary, is that in modern democracies, ‘‘the state of exception has become the rule.’’2 For Rossiter, a constitutional exception to the constitution makes sense only against the background assumption that the constitution remains valid independently of the situations that it has to face. That is why the state of exception cannot really be a lasting ‘‘state’’ but is merely ‘‘temporary,’’ having its ‘‘self-destruction’’ already prescribed to it in advance by the very fact that it is constitutionally sanctioned . For Agamben, such reasoning betrays an ignorance of the logic of exception. Following Carl Schmitt, he argues that whether a law can be applied in any given case requires a prior legal decision as to whether the case is normal or exceptional. But the only way in which law can take into 190 191 Natural Right and States of Exception in Leo Strauss account what is an exception to law is by suspending its own validity. It follows that there exists applicable law, that the rule of law is in force, only because law is always already in a suspended state. Here the normal case makes no sense apart from its relationship to the exception. In this way, the exception to valid law becomes a permanent state and ceases to be ‘‘temporary’’ and ‘‘self-destructive.’’ In this essay, I shall not try to resolve the thorny question of whether the exception confirms the rule, as Rossiter argues, or whether the rule confirms the exception, as Agamben does. For sure, after ‘‘September 11’’ and the implementation of an indefinite ‘‘War on Terror,’’ this problem is not simply of academic consequence. Here I would like to approach the question somewhat indirectly. By a peculiar coincidence, the same year in which Rossiter’s book appeared, Leo Strauss also published his first American work, an interpretation of Xenophon’s Socratic dialogue Hiero, under the title On Tyranny. The coincidence is remarkable because both Rossiter and Strauss thematize the shortcomings of the rule of law and provide justifications for its suspension. Both do so by working (explicitly in Rossiter ’s case, implicitly in Strauss’s case) under the shadow of Carl Schmitt’s theorization of the state of exception. In what follows, I give a brief reading of Strauss’s texts on classical natural right of the late 1940s in order to explain his doctrine of the state of exception, and then attempt to put this doctrine in what I take to be the general politico-theological context of his thinking. Strauss on Tyranny and Classical Natural Right On Tyranny is mainly concerned with establishing the difference between ‘‘Socratic political science and Machiavellian political science.’’3 This difference has often been understood as follows: for Strauss the just life is essentially the philosophical life. Socrates proved that philosophy is threatening both to political rulers and to the ignorant masses, who, when they join forces, tend to favor tyrannical governments. Philosophers therefore have the duty to become advisors to the rulers in order to prevent the persecution of philosophy. On this reading, On Tyranny could be read as a ‘‘liberal’’ text that seeks to defend the freedom of thought against the potentially totalitarian deviations of mass democracy, whose foundations were laid down by Machiavellian political science, and later taken up by Hobbes and the entire tradition of modern natural right.4 192 Miguel Vatter I would like to suggest that the central concern of On Tyranny is not the problem of freedom of thought in relation to power, but rather what Strauss calls the ‘‘problem of justice’’ or ‘‘the problem of law and legitimacy .’’ For Strauss, all ideas correspond to problems. Platonic political philosophy gives rise to the...