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In Leibniz sovereignty becomes a relative concept when applied to the political sphere, and full sovereignty only obtains in the sphere of theology. But there, too, it does not have (to use Schmitt’s expression) a decisionist character; rather, it has a rational one. In other words, it is not based on the will, but on reason. Or God would also operate in accordance with the logic of tyrants (see Chapter 1). For Carl Schmitt, who follows Hobbes, the concept of sovereignty, as used in political philosophy and in juridical theory, is the secularization of a theological concept—but of a decisionist rather than rational theology. Sovereignty is decision and domination. It is not simply a technical concept in state theory (which could be understood according to its internal and external aspects)1 but rather the personal privilege of the ruler: “Sovereign is he who decides on the exception”; this is how Political Theology famously starts (2005: 5). But what is it, precisely, to decide on the exception? In a sense, the answer is contained in the paradoxical figure of the sovereign, in sovereignty as a “borderline concept,” “one pertaining to the outermost sphere” (ibid.). Schmitt says that although the sovereign “stands outside the normally valid legal system, he nevertheless belongs to it” (p. 7). He belongs to it precisely in virtue of his capacity to decide on the exception. As Tracy B. Strong notes in his foreword to Political Theology, for Schmitt “it is the essence of sovereignty both to decide what is an exception and to make the decisions appropriate to that exception” (p. xii). Here one sees the complexity of this apparently simple and straightforward truth. The question is: What enables the Chapter Two Exception and Critique w Sovereignty is NOTHING —Georges Bataille, The Accursed Share EXCEPTION AND CRITIQUE 39 sovereign to decide on the exception and thus be sovereign? The answer is found not in Schmitt, but in Walter Benjamin: violence, and the violence always “implicated in the problematic nature of the law itself” (1978: 287). But let us pursue this more slowly. The question I just posed can also be rephrased as follows: What gives the sovereign that special capacity to see that there is an exception, a state of emergency, and consequently decide on it? Does the sovereign become sovereign because he can decide on the exception , or is it rather the case that he can decide on it because he is already sovereign? Depending on the answer, the hyperbolic truth enunciated by Schmitt acquires a different meaning: In the first case, any person with special powers (or even simply a special sensibility) should be recognized as sovereign. This would be an honorary status conferred on him. The implication here would be that there actually is, objectively speaking, an exception and the sovereign is he who can recognize and handle it. But of course Schmitt does not speak of any sense of recognition, understanding, and judgment , but only of decision—although one would think that a decision can only come after a judgment is made on rational grounds. It is perhaps the concept of “genuine decision,” of which Schmitt speaks in the preface to the second edition of Political Theology (p. 3), which comes close to this first sense of the statement. A genuine decision is not necessarily that which is made by those who have the legal, constitutional power to decide. In fact, they can be, and most of the time are, completely mistaken in their decisions . A genuine decision requires some inherent and special powers. In this case, the decision itself would decide of the sovereign. In making the decision , X would rise to the status of sovereign. In the second case, the sovereign is he who has the power (in the strictly political, institutional sense—a power always grounded in violence) to decide on the exception. This is, for instance, the case of G. W. Bush rebuking the United Nations before attacking Iraq: “We don‘t need permission,” or his decision to open the detention camp at Guantanamo. As I write (June 12, 2008), a divided U.S. Supreme Court has ruled that the Guantanamo “enemy combatants” have the right to challenge their detention. The Associated Press reports that Justice Anthony Kennedy, writing for the court, said, “The laws and constitution are designed to survive, and remain in force, in extraordinary times” (emphasis added). This is a blow to Bush’s sovereignty and a challenge to the Schmittian notion of...

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