- Willing and DecidingHegel on Irony, Evil, and the Sovereign Exception
If political decisionism is the claim that the most important political decisions cannot be regulated by rational norms and instead require a confrontation with the exception, Carl Schmitt remains its most notorious advocate. While Schmitt distanced himself from decisionism when he joined the Nazi party in the 1930s, his critics insist that his role in the events leading to Hitler’s assumption of power and his own membership in the party were only attempts “to put . . . into practice” his earlier theoretical attack on legal positivism and what he vaguely termed “liberalism.”1 Even for those who reject such sweeping claims, the teaching laid out in his 1922 Political Theology remains deeply disturbing. On Schmitt’s account, “Sovereign is he who decides on the exception” [Political Theology 5]. This decision is not a matter of recognizing an exception that already exists; rather it has a performative quality whereby the sovereign decision that names a given event to be an exception is the necessary precondition for the existence of the exception as such—as well as, by extension, the legal system from which it is excepted or removed. The exception is, as it were, called into being by the sovereign, whose decision on it is unregulated by the standards of law or, indeed, of normal life itself.
The exception is that which cannot be subsumed; it defies general codification, but it simultaneously reveals a specifically juristic element—the decision in its absolute purity. The exception appears in its absolute form when a situation in which legal prescriptions can be valid must first be brought about. Every general norm demands a normal, everyday frame of life to which it can be factually applied and which is subjected to its regulations. The norm requires a homogenous medium. . . . For a legal order to make sense, a normal situation must exist, and he is sovereign who definitively decides whether this normal situation actually exists.[Political Theology 13]2 [End Page 135]
As the ability to decide on the exception (and hence the norm and the normal) in this sense is what defines the sovereign, sovereignty only appears in its “absolute purity” in the act of naming the exception. Schmitt’s sovereign is a creature of the border: “although he stands outside the normally valid legal system, he nevertheless belongs to it, for it is he who decides when the constitution needs to be suspended in its entirety” [Political Theology 7].3 But while the sovereign’s decision on the exception seems to range back and forth over the borders of the legal order, this movement is in fact the oscillation of the borders themselves—an oscillation that bears the two names sovereignty and exception. Though it makes sense in one way to speak of the sovereign overstepping the limits he lays down, in a deeper sense he, as the moment of decision, is himself the limit. On this account, George W. Bush was more accurate than he could have known in his recent halting suggestion that he is not just the nation’s “decider,” but also himself “a decision.” Or, as he more regularly if quietly maintains, an exception.4
While Schmitt’s celebratory analysis of the exception is the best-known today, he is hardly the inventor of this problematic: as he himself emphasizes in Political Romanticism (1919), the question of the decision lies at the heart of nineteenth-century Continental Romanticism, which celebrated an “occasionalism” derived from Malebranche in which the self and its whims take precedence over any substantive commitments that self might take up.5 Karl Löwith has demonstrated that Schmitt’s 1920s decisionism is, rather ironically, open in many aspects to his earlier attack upon this Romantic occasionalism [see Löwith]. Löwith was perhaps as attuned to this as he was on account of being a keen student of Hegel, as well as of Heidegger. Indeed, many features of Schmitt’s own attack upon the Romantics are anticipated in Hegel’s fierce critique of this movement and, in particular, his attack upon Friedrich Schlegel’s role in it. But if Hegel’s critique of Schlegel casts...