[HillRat]

The German jurist Carl Schmitt essentially made the same argument: the power of the executive is the power to divide the world into enemies, and to declare a "state of exception" that allows the unfettered pursuit of those enemies. Such enemies need not be foreign, but may be domestic; not only criminal, but political.

The Bush administration said that Abu Zubaydah was al-Qai'da; he was not. They said he helped bin Laden escape Afghanistan; he did not. They said he had intelligence justifying the invasion of Iraq; he had none. Every justification they gave for his imprisonment and torture was either disproved or a simple lie, and yet they continued. In the end, their justification was simply, "He hates us, and we hate him."

This is a troubling basis on which to exercise military power. And once the executive arrogates for himself the power to place persons beyond the pale of domestic and international customary law, it's very hard to keep that demon in the box where you want him. To paraphrase, when all the laws lay flat, what will hide us from unjust power?

[elcapitan]

Without advocating Carl Schmitt, I think you are misrepresenting his views there. His concept of the 'Ausnahmezustand' (state of exception) is broader than just executive orders. He basically meant to describe the powers of a particular executive in a constitutional system by looking at the "not normal" case. This is similar to security in computers - you are not interested in the case where the computer behaves nicely. You want to know what you can do when things go wrong. So he described the power of the state as defined by what it can possibly do if they abuse them as the constitution enables it to do: "Sovereign is he who decides on the exception."

[HillRat]

When I read Schmitt (and it's been many years!), I can't disentangle the concept of the state of exception from his insistence that politics are fundamentally about the friend-enemy distinction, and that, as he says, the qualitative element of that distinction is its ability to flare into violence.

So it's hard for me to see Schmitt's theory as anything other than the normalization of the diktat to resolve political conflicts; if the state demands orthodoxy amongst its "friends," and the executive is empowered to punish deviant "enemies," and the executive's decision to impose an exception is unreviewable (which is a Schmittian prerequisite for executive power), then the state of exception essentially never ends -- as Germany found out with the Reichstag emergency.

What are your thoughts -- am I taking him too far? Can he be read a bit more kindly, perhaps as a more formal and rigid version of the old saw, "the Constitution is not a suicide pact?" Or was he, like Machiavelli, more descriptive than prescriptive in his assessments?

As I said, it's been years since I read Schmitt, but I found him to be, ah, bracing as a thinker, a kind of prebuttal to the concept of a negotiated society that would later preoccupy thinkers like Habermas. I'd just rather live in a Rawlsian or Habermasian world than one in which political disagreements are treated as a flashpoint for war.

[elcapitan]

I think you are right in your perception of his thinking, and I didn't mean to interpret his views in a friendly way - I just wanted to note that there is a more academic dimension to the way how he meant this. I think you are exactly right in your view that he is basically thinking the opposite of a "negotiated society", this is what I got from his "Constitutional Theory" of 1928 as well. It is very instructive though because he is probably the most literate and well-spoken opponent of the liberal constitutional society - that's what I meant when I compared it with software security testing, he's basically looking for all the loopholes and small inconsistencies in liberal societes. I think his notion of these extreme powers of government is an example of that, and history has shown (with the further development of the Weimar Republic) that he was right there. I am not sure if he meant it in a normative way, as addition to the idea of politics as a fight between enemies.

Having said that, this mix of academic, positive right thinking, in the context of the abolishment of a state of law and civil society probably makes this all even more evil.

[HillRat]

That's interesting -- I generally think of Schmitt as constructing a theory of dictatorship, but you're right: he's also black-hat hacking the constitutional order at the same time. That's a fantastic insight, I think, because you're really crystallizing him as a practitioner as well as a theorist.

[elcapitan]

You may be interested in a recent revival of his thinking from the left - [1][2] - the idea there is that he doesn't mean "enemies" in the sense of a mortal fight, but rather "agonists". This is explicitly directed against the Habermas type of discourse that is directed towards achieving a consensus, and advocating not to bury conflicts. Basically in response to a "mainstreaming" of political parties (probably not so much in the US, but in many European countries you will find that the major established parties seem to agree fundamentally with very little differences, with the rise of extreme right and left parties at the same time as a reaction). Not a view I share, but I find it interesting that they are now going back to Schmitt for that.

[1] http://www.amazon.com/Agonistics-Thinking-Politically-Chanta... [2] http://www.amazon.com/Political-Thinking-Action-Chantal-Mouf...

[HillRat]

I think Mouffe's "agonistic democracy" to be provocative and maybe even a more powerful description of politics than, say, Habermas (I retain affection for Rawls) but, like you, I don't think I can buy her efforts to claim Schmitt. Her argument that social media tends to work against agonism by enforcing epistomological closure (to use the trendy term) and thus leading people to a totalistic worldview is, I think, an unconscious rebuke of the extent of Schmitt's own friend/enemy distinction. But I haven't read her major texts, just the collections she's edited and contributed to, so I probably should spend some time on that.