The Rule of the Norm and the Political Theology in "Real Life"in Carl Schmitt and Giorgio Agamben

Wetters, Kirk.

diacritics, Volume 36, Number 1, Spring 2006, pp. 31-46 (Article)

Published by The Johns Hopkins University PressDOI: 10.1353/dia.2008.0005

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diacritics / spring 2006 31

The Rule of The NoRm aNd The PoliTical Theology of “Real life” iN caRl SchmiTT aNd gioRgio agambeN

KirK Wetters

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“Norm” in the Context of Legality and Legitimacy

Section 1 of giorgio agamben’s Homo sacer, “The Paradox of Sovereignty,” begins with an extended quotation from carl Schmitt’s Political theology, where, in daniel heller-Roazen’s translation, Schmitt’s vocabulary of the norm (die Norm, das Normale, die Nor-malität, der normale Zustand, die rechtsnorm, der Normalfall), is rendered in terms of “the rule” and “the regular.” This practice is extended into agamben’s text, where the same formulations appear as norma generale, una strutturazione normale, la norma, nor-malità, and norma giuridica. The lexicon of the “norm” and the “normal,” which pertains above all to the distinction between the “state of exception” (der Ausnahmezustand) and the “normal situation” (die normale situation), is thereby reconfigured to produce a gen-eral (and implicitly formal-logical) opposition between “exception and rule.” if Schmitt’s use of norm words were unproblematic in itself, then this translation would be easier to justify. “Norm” can indeed mean “rule,” in certain contexts, but Schmitt, the jurist, knows the concept in the sense of a legal norm (rechtsnorm), which is to say a “positive law” (Gesetz). Schmitt insists, for instance, in Legality and Legitimacy (1932), that laws as legal norms should refer exclusively to the products of legislation and should not be confused with written “rules” (regelungen), unwritten social norms, “measures” (Maßnahmen), “orders” (Anordnungen as well as Befehle), or executive de-crees. Schmitt’s Political theology (1922), however, does not consistently conform to this distinction. his norm vocabulary becomes unstable both in the idea of the “normal” (which is never entirely a product of legal norms in Political theology), and in his ef-fort to produce a sweeping general theorization of sovereignty. To put it in the words of Jürgen link’s lengthy study of “normalism” (Normalismus): “it is . . . anything but easy to precisely unfold Schmitt’s concept of ‘normality’” [287].1 link speaks of Schmitt’s “interdiscursive montage” made up of “juridical, theological, philosophical and socio-logical” usages. Taken in the purely juridical sense, however, it is well known that Schmitt is no friend of theories of law that seek to identify law in general (recht) with a system of

1. english translations from the German are my own unless otherwise noted.

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positive laws (Gesetze). in the introduction to Legality and Legitimacy, for example, he describes the “legislative state” (Gesetzgebungstaat) as a state that sees itself as a legis-lative-parliamentary system for the production of legal norms (Normierungen) that cor-respond with the general will of the commonwealth [LuL 9–18]. The legislative state sets up norms that are “meant to last” (“für die Dauer gedachten Normierungen”)—whereas rules, regulations, and emergency measures (and in particular those allowed for in article 48 of the Weimar constitution) would have an entirely different status. by permitting decrees, laws, and executive actions to acquire the “force of law,”2 article 48 undermines the legitimacy of the parliament and opens the way for dictatorship. Schmitt outlines the self-legitimation of parliamentary systems as follows:

the “rule of law” prevails rather than the rule by men, authorities or superiors. And even more precisely: the laws do not rule, but are only valid as norms. Domination and sheer power do not exist at all anymore. Whoever exercises power and domination acts “based on a law” or “in the name of the law.” He does nothing but enforce a valid norm in accordance with his own responsibili-ties. [LuL 8]

if Schmitt sounds a bit skeptical in this passage, the tone is entirely in accord with chap-ters 1 and 2 of Political theology, which aggressively underscore the inadequacy of le-gal-parliamentary systems when it comes to emergencies and exceptional cases in which someone must take responsibility for deciding. legal and constitutional systems can guarantee their ongoing “normal” function only during conditions of normality; in order for the legal order to be restored in a state of exception (or for laws to be applicable in the first place), a “normal situation” must be created; law in this sense can never apply or enforce itself automatically, but can do so only through representative agents invested with the power of decision. These claims of Political theology are compatible with those of Legality and Legitimacy insofar as the earlier text insists that even systems that found their legitimacy on the “rule of law” must occasionally have recourse to extralegal mea-sures in order to preserve the law. but if such measures themselves begin to acquire the status, duration, and the very name of law, then the law’s claim to legitimacy within a parliamentary-legal system is undermined in a way which, for Schmitt, is appallingly at odds with this system’s self-evident interest in its own stability and survival. What is also at stake here—in the most theoretically ambitious argument of Political theology—is that all governmental systems need to have recourse to and represent some kind of transcendent value that serves to legitimate rule. (Schmitt himself never goes so far as to believe in these representations but is primarily interested in the mechanics of authority.) Parliamentary systems legitimate themselves by appealing to the sublime “rule of law,” whereas the medieval sovereigns (and the catholic church) claimed their authority from god by way of tradition. in comparison with the latter models, Schmitt perceives an acute legitimacy-deficit in modern systems’ claim to “rationality.” Rational-ist and positivist legal and political theories are denounced by Schmitt as the (political) “theology” of the existing system of rule, the necessity of which was motivated by a his-torical shift in underlying metaphysical presuppositions. a new “sociology of concepts” has invalidated sovereignty’s traditional modes of legitimation but failed to adequately justify rule according to reason. Thus according to the dynamic claims of the first chapter of Political theology, sovereignty remains factually ineradicable in all modern systems. Schmitt argues that contemporary political and legal theory is neither as purely descrip-tive nor scientific as it would claim, but serves to legitimate an existing rule within a

2. Agamben himself returned to the question of the force of law in “Force-of-Law,” the second essay in State of exception [Se 32–40].

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prevailing worldview. This legitimating function becomes ideological, however, as long as the underlying legitimacy-deficit remains3—and it is precisely the inability (or unwill-ingness) to theoretically and practically account for the problem of sovereignty that keeps this deficit alive. The need for systems to supplement their sheer existence with a theoretical (or ideo-logical) justification defines the modern crisis of “legitimacy” and explains the need for compensatory “political theologies.” ideally, however—at least from Schmitt’s perspec-tive—a legitimate system would have no need of this kind of supplementary legitimation: it could function without having to continually justify itself. This myth of an unproblem-atic system may sound appealing, but in practice it seems to produce a kind of administra-tive “black box” (of the kind that has become familiar in the bush administration). and the historical case of sovereignty also fails to illustrate this idea of automatic function, as ernst Kantorowicz realized.4 This is a probable reason why “sovereignty” plays a lesser role in Schmitt’s more systematic texts of the decade following Political theology. instead he espouses a typological model of governmental forms that largely avoids such traditional terms as “monarchy,” “democracy,” and “aristocracy.” This further entails a move away from decisionist sovereignty and toward the administrative state (Verwaltung-staat) in which—“though it may sound like a utopia”—“things take care of themselves” [LuL 10–11]. in contrast with max Weber, who saw bureaucracy and administration as characteristic of all modern states and of parliamentary systems in particular, Schmitt’s “administrative” state is implicitly utopian, revolutionary, reactionary—or fascist-dicta-torial. it is, in a word, a legitimacy state rather than a law state.5 Its “specific expression is determined by a measure (Maßnahme) that is determined only by the material circum-stance, a measure taken in view of a concrete situation, entirely from the perspective of objective-practical necessity” [LuL 9, Schmitt’s emphases]. if administrative authority has a free and sovereign hand to follow the pure necessity dictated by a situation, then everything will take care of itself [LuL 10], and no additional legitimation will be neces-sary. Whether this amounts to an unholy alliance between dictatorship and administrative state (which Schmitt feared as the result of article 48), or whether it might be positively realizable through the administrative-political mobilization of traditional institutions and

3.HugoBallwasoneof thefirst toattemptaretrospectivepresentationofallofSchmitt’swork,andalreadyin1924thisappearsasacomplexundertaking.Ball’sessaybeginsbyclassifyingschmitt as an “ideologue”—a “great ideologue” and in the double sense that he is also a theorist of ideology—and emphasizes the importance of ideology in eras when things are not functioning very well on their own [100]. 4. the reference to “mediaeval political theology” in the subtitle of The King’s Two bodies already signals this fundamental difference with schmitt: the medieval conception of sovereignty was itself supported by a proliferation of “political theologies” that may have possessed a certain self-evidence during that period, but they have become completely alien to us. And, by extension, our ability to relate to the status quo of our own system at the level of self-evidence is equally tenu-ous: “Political mysticism in particular is exposed to the danger of losing its spell or becoming quite meaningless when taken out of its native surroundings, its time and its space” [Kantorowicz 3]. 5.Schmitt’stheoryoflegitimacyisclearlyderivedfromthatofMaxWeber.Thisisvisibleintheatleastroughlyanalogoustripartitestructureofboththeories,butmostofallinbothauthors’definitionoflegitimacyasthefundamentalcategoryofrule.Weber’sthreeformsoflegitimationare, famously, legal, traditional, and charismatic. Weberdefinesalloftheseformsintermsofthechances that orders will be followed obediently; the emphasis on “chance” makes a difference. schmitt, for example, does not speak of the chances that the sovereign will be able to effectuate a decision about the state of exception (even though this is in a sense what must be at stake). Also characteristic of Weber (but less so of schmitt) is the emphasis on the belief in legitimacy (legiti-mitätsglaube): legitimacy is a category of faith or credit, displaced from objective organization and the direct application of power—because any application of power can take place only on the basis of legitimacy [Wug 122–48].

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explicitly “German” identifications (as Schmitt seemed to hope [LuL 90]), is a moot point insofar as these alternatives look the same in historical hindsight. from the perspective of Legality and Legitimacy, Political theology attempts to ana-lyze legal norms according to the possibility of their genesis and in terms of the conditions of their applicability. This is posed as a question of how the “normal situation,” defined as the condition under which legal and other norms can apply, can be created in the first place and maintained when threatened. The one who decides whether the normal situa-tion prevails (rather than the state of exception, der Ausnahmezustand) is the sovereign. Legality and Legitimacy, on the other hand, addresses legal positivism in terms of what it does and does inadequately (produce legitimacy by way of law); but Political theol-ogy describes legal positivism’s inadequacy whenever it comes to effectively instituting and reproducing life-norms (as nonlegal norms that would shape and determine life in all of its immediacy, self-evidence, and “normality”).6 only the sovereign decides about the presence or absence of these quasi-transcendental protonorms (to use Jürgen link’s vocabulary) [link 129–31, 287–89],7 the existence of which is the precondition for every application law and all legitimate institutions. Legality and Legitimacy approaches the problem of Political theology from the side of the norm as a product of legislation and explores its limitations; Political theology approaches the problem of the norm (and not just the legal norm) from the side of the exception as the unforeseeable situation that no norm can master; both texts are primar-ily interested in the conditions for the production of a legitimacy that would not require the ambiguous supplement of legitimation. Schmitt argues not against norms as such, but against the mediacy, historical contingency, and second-order arbitrariness of legal norms in comparison with more fundamental modes of being and instituting. he thus seeks to define the specific conditions under which order can be restored and constitutions defended—but always in view of the general conditions (revolutionary or prophetic) un-der which “the normal situation” itself may be originarily reposited in the foundation or refoundation of a historical community. in short, Schmitt does not oppose the “positiv-ism” of positive law, but thinks that it is not positive enough, insofar as written laws are temporally and linguistically displaced from that which they seek to create. This difficult opposition between the legal-normative (positive law) and its precon-dition, the sovereign-normative (legitimacy), is lost in the english text of Homo sacer. for Schmitt these two aspects define a kind of transcendental continuum (which would ideally have a maximum of legitimacy and a minimum of law). The relation between the two can emerge, however, only if the semantics of the norm (as law) and the normal (as its precondition) are retained as discrete terms. Protolegal normation—whose object is

6. According to the compact formulation of Fritz Loos and Hans-Ludwig schreiber in ge-schichtliche grundbegriffe: “the preeminence of [written] law is called into question [by schmitt] by the invocation of a new kind of unwritten, super-legal form of right. the life-norm of the com-munity of the people, its innate order prior to every legal regulation, is the precondition for the validity of laws” [306]. 7.ForLink,protonormalismisdefinedby“thecompletelyinadmissibleextendedapplicationof the Bios [with its conception of evolutionary biological norms] within the Sozius [the social-historical realm]” [130]. Based on the difference between the state of Normalität (signifying the absence of the state of exception) and Normativität (the legal-normative-prescriptive dimension), LinkcharacterizesSchmitt’s“mentality”as“clearlyprotonormative”[287].Linkfurtherdiagno-ses a protonormative interdependency (engführung) between these two distinct terms, insofar as legal norms are thinkable only under “normal circumstances” and in fact can be said to crystallize and emanate from the normal situation that is ultimately guaranteed by the sovereign [287–88]. Schmitt’spointhere,toparaphraseLink’sargument,istounderminethelegitimacyofprevailinglegal norms in favor of the exception as the moment when no legal norm can possibly obtain and when new norms—situationally rather than legally conceived—are capable of being posited.

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the life norm upon whose real existence the sovereign decides—grounds the sphere of law (as recht) and remains temporally and transcendentally prior to the law (as Gesetz). for Schmitt the normal situation and the exception are the real coextensive basis of all law—but completely beyond its letter. The presence of the norm in the normal situation is the condition of the possibility and applicability of positive law. in a concrete sense, this means that norms (as laws) can be applied only on the condition of preexisting “existen-tial” norms (including all natural and human law and social norms). Admittedly, the first chapter of Homo sacer is not primarily focused on this dis-tinction between “norm” and “normal situation,” and Schmitt himself, though he retains a degree of terminological clarity, is less interested in lexical precision than rhetorical impact. The decisive flourish in this regard occurs at the very end of Schmitt’s chapter, in an unattributed Kierkegaard citation. agamben’s reading (and heller-Roazen’s trans-lation) take hold at the point where Schmitt begins to push his thinking toward its most general limit. Schmitt gives Kierkegaard the last word in the chapter, leaving the cita-tion uncommented, allowing it to stand as a reflection on the paradoxical truism that the exception proves the rule.8 agamben reads this emphatic generalization as the formula of the general relation of exception and rule, which is governed by a logic of inclusion and exclusion. in my view, this formalization is a red herring, however, when it comes to understanding the relationship between “state of exception” and “normal situation.” The specific terminological possibilities of Schmitt’s argument thus need to be brought back into play (as i hope to do in the remainder of this essay), not only to clarify his position, but also for the sake of understanding agamben’s Homo sacer.

2

the Problem of Bionormativism: Carl schmitt and Kurt Hildebrandt

Der Name entartung schon setzt voraus die idee der art, an welcher die Abwei-chung bemessen wird. Diese idee heißt Norm. [the term “degeneration” itself presupposes the idea of the genus from which deviations are measured. this idea is called norm.] —Kurt hildebrandt, Norm und entartung des Menschen

before addressing the ongoing role of the discourse of the norm and normativity in agam-ben, it is helpful to indicate some more implications and contexts inherent to the idea of the norm. as mentioned above, there is little disagreement about the biological basis of Schmitt’s concept of the sovereign norm, the life-norm, but Schmitt is never so overt as to explicitly espouse it as a racial-biological or eugenic norm. commentators have, howev-er, noticed his preference for typological distinctions, distinctions according to Art (kind, type, species), which at least open up the semantic field of entartung (degeneration).9 in

8. On this point see Karl Löwith”s 1935 essay, “Der okkasionelle Dezisionismus von Carl Schmitt,”whereSchmitt’suseofKierkegaardisdiscussedindetail.“Thefactthatthe‘extremusnecessitatiscasus’inthejuridicalsensehas,intermsofitscontent,nothingincommonwithKi-erkegaard’sexistential-religiousdecision...isnotofweightinSchmitt’spresentation”[38–39]. 9.Löwithaddresses thisat length[51–59].Anespecially tellingexampleofSchmitt’scon-ception of art is also discussed by Nicolaus sombart in die deutschen männer und ihre feinde, especiallyhisanalysisofSchmitt’s1934textStaatsgefüge und Zusammenbruch des zweiten Reich-es, whichfocusesonadiscussionofSchmitt’spolemicallyinflectedoppositionbetween“citizen”(bürger) and “soldier” (Soldat) [sombart 22–30]. thomas schestag also discusses the “typologi-cal” dimension in Schmitt’s thinking [55–61]. Schestag reads Schmitt’s typological thinking as

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the 1934 introduction to the second edition of Politische theologie, for example, Schmitt summarizes his theory of the “three kinds” (drei Arten) of legal-theoretical thought:

While the pure normativist thinks in terms of impersonal rules and the decision-ist enforces the unimpeachable rights that belong to the correctly recognized political situation in the form of a personal decision, the institutional theoriza-tion of right unfolds itself in super-personal organizations and formations. And while the normativist in his degenerate form (entartung) makes right into the mere functional mode of a state bureaucracy and the decisionist is always in danger of missing the underlying constants of every great political movement through the functionalization of the moment of action, thus an isolatedly insti-tutional thinking leads to the pluralism of a mere organic expansion, feudal and caste-based but without sovereignty. [UDA 8]

Schmitt’s thinking unfolds itself here in terms of broad categorical ideals grasped in elab-orate and daring analogical parallels. each of the “three ways of thinking,” for instance, is said to correspond to individual aspects of the political union: state, movement, and people (staat, Bewegung, Volk). Schmitt also admits the possibility that each of these pure forms of legal thought may fail to live up to the standard set by their categorical ideal. The three basic political types may “degenerate” not only by occurring in bad mix-tures, but by becoming isolated or (metaphorically) inbred:

the so-called positivism and normativism of the German legal code of the Wil-helminian and Weimar period was only a degenerated (degeneriert) and thus self-contradictory . . . form of normativism, mixed with a positivism that was only degenerate decisionism, blind to right (rechtsblind), merely following the “normative power of whatever is factually given” instead of making a genuine decision. [UDA 8]

as this passage shows, the normative-typological aspect of Schmitt’s thought increases after Political theology—but is emphatically not normative in the sense of legal norms. Schmitt operates with teleological normative ideals that represent the ideal of the genus (Art) to which an always degenerate reality must strive to conform.10 There is at least a family resemblance between this particular style of normativism and much more overtly biopolitical considerations. in particular, Kurt hildebrandt, a psy-chiatrist and philosopher associated with the circle surrounding Stefan george, helps give a sense of the meaning of the word “norm” in the context of a massive biopolitical treatise. hildebrandt published two books in 1920 totaling over 500 pages, asserting the impor-tance of state-sponsored genetic hygiene. The titles are striking: Norm und entartung des Menschen (Norm and the Degeneration of Man) and Norm und Verfall des staates (Norm and the Decline of the state). The concept of “norm” here refers to a uniformly positive and ideal norm, the opposite of “degeneration” and “decline.” hildebrandt’s conception is

peculiarly overextended in a way that causes it to display “the ruination [Ruin] of the will to make strict distinctions, the ruination of the idea of species itself” [59]. 10.ThissenseofanidealasakindofnormiscompatiblewithKant’susageofnormtermi-nology. in the third critique, for instance [§17, “Vom ideale der schönheit” (“On the ideal of Beauty”)], Kant distinguishes between the ideal of beauty and what he calls the “normative idea” (Normalidee) of beauty, which represents a kind of relative average within a given species. He in-sists, however, that this Normalidee “is by no means the entire archetype of beauty in this species, but only the form which comprises the indispensable condition of all beauty, that is the correctness in the depiction of the species itself. . . . this depiction is merely correct in the academic sense.”

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culturally pessimistic and transparently racist, and he tries to develop a transgenerational biopolitical plan, which includes much material pertaining to demographics, population management, and public health. hildebrandt is more concerned, however, with the health and welfare of the gene pool than of the living population. his theory does not espouse a strict racial hierarchy or a plan for the creation of a “master race,” but he does believe that governments need to try to make policies that encourage the breeding of “genetic elites” (from various races) while discouraging reproduction among genetically inferior individ-uals.11 An obvious difficulty, which Hildebrandt acknowledges, is that of distinguishing between social and genetic elites, and of determining the possible causalities between the two. This does not stop him, however, from envisioning a total reconception of society itself (and particularly of education) in the interest of genetic selection. his ultimate goal is to push the idea of “progress” beyond the dead end of technologically rationalized life—the meaningless activity of “ant-men” (Ameisenmenschen [NV 229])—in order to produce a higher form of life whose transcendental norm is derived from the lives and works of heroes and geniuses. This normative typology receives its definition from “the heroic works of the mind and of military glory, achilles [on the one hand] and goethe [on the other]” [Ne 139]. When it comes to hildebrandt’s actual theorization of the norm, his approach is emphatically not empirical and statistical, but is determined in view of the exception: “Precisely the defect in a formation [der Defekt eines Gebildes] often awakens the image of the norm [das Bild der Norm] most intensely” [Ne 66]. The norm thus tends toward imaginary and idealized projections. in this context, hildebrandt broaches the question of the norm’s general teleology and comes to the conclusion that it is impossible to conceive of norms without some kind of a priori determination as to the purpose or goal in light of which the normative ideal can be determined. at the greatest levels of generality, hildeb-randt thinks that norms should be based on “general life-goals [allgemeine Lebenziele]” [Ne 70]. Thus the highest human power in hildebrandt’s view is the (individual) ability to posit and represent new general norms for the community: “The ultimate achievement [in life] is not conformity [to an existing norm] but the independence from external condi-tions” [Ne 72]. hildebrandt’s “normativism” is not a mechanical conformism (any more than is Schmitt’s theory of the norm in the context of sovereignty), but instead amounts to an individualistic cult of “creative power [schöpferische Kraft]” that must create and become new norms: “only the creative man, the hero [der Heros], can be norm incarnate [leibhafte Norm]” [Ne 79]. The parallel passage in Political theology also puts emphasis on creation: “a normal situation must be created [geschaffen], and he who is sovereign definitively decides whether this normal condition actually prevails. . . . The sovereign creates [schafft] and guarantees the situation as a whole in its entirety” [Pt 19]. The sovereign creates: Der souverän schafft.12 Schmitt’s sovereign is also creative power,

11. A central difference between Hildebrandt and a more well-known racial theorist like Hous-ton stewart Chamberlain is the reception of Darwin. Chamberlain is more critical of Darwin and science, while Hildebrandt broadly appropriates the Darwinian idea of “selection.” He sees mod-ern societies as overall “counterselective” (i.e. favoring genetically inferior individuals) and pro-poses social reforms that would effect a kind of “social Darwinism” (which, contrary to the usual sense of the term, would not mean a Darwinian model projected onto the selective function of social systems,butratherthatsocialsystemsshouldberedesignedinviewofgeneticselection).Goethe’smorphological theories are a more probable common link between Hildebrandt and Chamberlain, however, insofar as a “norm” or “type” is presumed as both the real formal base and the telos ofallvariation.SeeinparticularthesecondpartofChamberlain’sNatur und leben, the section entitled “Zur naturwissenschaftlichen Orientierung: schutzgeist Goethe.” 12.The importanceof thisaspect inSchmitt’s thinkingishighlightedbyNicolausSombart[139], who takes schmitt as the ultimate example of the male mentality of his era: the idea of a male creator in the image of God is read as a compensatory misogynistic pathology of total pa-

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the power to produce and posit new norms. both the sovereign and the hero create and represent; they must further seek to become images themselves, examples and represen-tations of a new norm. The sovereign, in deciding about the presence or absence of the (exemplary) norm and the (exemplary) normal situation, must stage new examples, must make examples of others, must set himself up as an example. This may appear, on the one hand, as a kind of political theatrics, but it is also a matter of the translation of ideas, ideals, and ideologies into concrete reality. but in contrast with hildebrandt, genetic entartung as such would never be really decisive for Schmitt. he would never imagine that new norms and forms of life could simply emerge from the gene pool without passing through—and being defined by—the political. Schmitt, more cynically than hildebrandt, would see “racial degeneration” as a mere pretext or opportunity of politicization. The claim to genetic superiority can emerge only as a political self-legitimation, as one of many possible ways creating distinctions between legitimate and illegitimate life. This characteristically Schmittian gesture of re-duction to the lowest terms of political ontology may itself appear as a merely “political” gesture, however, an empty “rhetorical” decision for “the political” (as whatever works politically): if the word entartung provides the means to a new and more solidly ground-ed political community, then Schmitt would give it his blessing, but without necessarily believing in the reality of “degeneration” as such. Schmitt’s sovereign does not just follow the “normative power of what is factually given,” but exercises protonormative power opportunistically in the moment when the state of exception—as a state of mind—13 invalidates all norms. Politically ambiguous, Schmitt’s theory of sovereignty, like hildebrandt’s ideal of the regenerative hero, hovers between anarchist individualism and reactionary traditionalism. at cognitive and onto-logical levels, however (as agamben will read him), Schmitt distinguishes himself from hildebrandt insofar as his theory of the exception represents a formal schema for the historical emergence of new forms and norms.

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schmitt and Canguilhem: the importance of Planning

Schmitt’s conception of the extralegal norm, “the normal situation” for which the sov-ereign is responsible, is a norm that is and establishes a “way of life,” a certain form of life that, at the extreme, may also be represented as a biological norm prior to all legal and social norms. it is thus not surprising that in hildebrandt the idea of the norm exists in near proximity with medical-hygienic discourse. in the latter sense, “norm” would be a translation of physis, the natural state, the state of health; its opposite, however, would not be degeneracy (entartung) but pathology. anything that poses an immediate threat to the norm (of health) is life-threatening and “pathological.” This is valid for the life of the organism as much as for the life of the state, assuming the underlying analogy between body and state is permitted to stand. The conceptual pair of norm and state of exception is thus concretely (though metaphorically) connected to the concept of life and to the valu-ation of specific forms of life. one author who has prominently addressed this underlying metaphorical problem of the norm specifically is Georges Canguilhem. His the Normal and the Pathological, a

triarchy, a kind of “womb envy” which tries to lay claim to the matriarchal principles of creation, production and reproduction. 13.InAgamben’smostrecentworkonthestateofexception,inEnglishunderthetitleofState of exception, he has underscored the importance of conceiving the “state” of exception subjec-tively rather than as “an objective situation” [Se 30–31].

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large-scale metaphorological reading of the history of medical science,14 argues, in “from the Social to the Vital” (1966), that a biopathological coloration exists in the general con-cept of the norm. canguilhem differentiates between human laws and biometaphorical norms, thereby reproducing Schmitt’s critique of the legal normativism—but he would reject Schmitt’s theory of the exception insofar it violates this distinction. in canguilhem, the central reason why positive law should be stripped of organicist metaphors is the fac-tual difference between the laws of nature and manmade laws:

rules have to be represented, learned, remembered, applied, while in a living organism the rules for adjusting the parts among themselves are immanent, pre-sented without being represented, acting without deliberation nor calculation. Here there is no divergence, no distance, no delay between rule and regulation. Thesocialorderisasetofruleswithwhichtheservantsorbeneficiaries,inanycase, the leaders, must be concerned. the order of life is made of a set of rules lived without problems. [250]

The production of “immanent” rules, Schmitt’s ideal of sheer unproblematic legitimacy would make political life unproblematic in the same way as biological life. canguilhem wants to maintain the social and the vital as distinct orders, whereas Schmitt wants to make politics immediate (functionally more organic) by politicizing life (under the threat of an existential crisis portrayed in terms of pathology). Canguilhem’s second main point, implied already in the first one, is that social regu-lations and laws are necessarily formulated in language:

social regulation tends toward organic regulation and mimics it without ceasing for all that to be composed mechanically. in order to identify the social composi-tion with the social organism in the strict sense of the term, we should be able to speakofasociety’sneedsandnormsasonespeaksofanorganism’svitalneedsand norms, that is, unambiguously. [255–56]

Within the realm of politics, law, and society, canguilhem says, we cannot speak unam-biguously of norms. The law and the sovereign are thus constrained within the sphere of the problematically political, the sphere of language, which Schmitt hopes to abolish in favor of the decisively political, which would transform society into a sphere of natural being. from canguilhem’s perspective, Schmitt’s theory looks like a politically motivated overestimation of the possible extent of the sovereign’s authority. Schmitt says, for ex-ample, with characteristic redundancy: “The sovereign creates and guarantees the situ-ation as a whole in its totality [die situation als Ganzes in ihrer totalität]” [Pt 19]. canguilhem would agree: “Socially speaking, to regulate is to cause the spirit of the whole to prevail” [251–52], but Schmitt would dismiss his understanding for its implicit faith in positive regulations and his reduction of law to a merely bureaucratic rule or measure. even in canguilhem, however, this kind of regulation (not decision) still re-quires a sovereign figure, a “distinct organ,” a “priest.” But a priest is not a sovereign, and Canguilhem qualifies the priest’s power as “temporal,” less than absolute, “merely a subordinate means” [251]. Rather than being the primary actor in an absolute-existential drama—a “state of exception” that requires that the sovereign recreate the order of life

14. While admitting that there is no direct correspondence between the history of medicine or science and the “history of ideas” [46], Canguilhem seeks to “contribute to the renewal of certain methodological concepts by adjusting their comprehension through contact with medical informa-tion”[34];“themodificationsit[ascientificthesis]undergoesinitsculturalmilieucanrevealitsessential meaning” [46].

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in its totality—canguilhem argues that norms operate only on preexisting norms, thus placing the “sovereign” decisively inside the system upon which he acts: “The regulator is subsequent to what it regulates” [252]. canguilhem supports this claim with a citation from auguste comte: “in effect only preexisting powers can be regulated, except [in] instances of metaphysical illusion where we believe we create them to the extent that we define them” [252]. Without actually naming Schmitt, Canguilhem implicitly rejects his theory of sovereignty as a “metaphysical illusion.” and canguilhem’s reformist model further reveals Schmitt, in contradiction to his apparent and avowed conservativism, as an inheritor of revolutionary political thought. canguilhem subordinates the sovereign to the social-governmental apparatus: the sovereign is a “regulator,” a functionary who may be able to change preexisting norms but who is essentially subject to preexisting powers of institution, administration, bureau-cracy, and society. Sovereignty persists in canguilhem, however, in a state of dispersion, in the figure of the norm itself, which rules by restricting the power to impose, set, and determine new norms. The sovereign decision, then, according to canguilhem, belongs to anyone who manages to make a norm become “normal”—even in the sense of developing or breaking a habit or setting a new trend. Normation thus represents something far less than an absolute or irrevocable transformation: “the norm is what determines the normal starting from a normative decision” [245]. but in both theories, the sovereign decision is the normative decision, the life decisions both of individuals and of regulatory instances interested in collectively valid normation. in either case, the emphasis on decision as the sovereign decision about the norm requires that the state of exception always be virtually in effect, internalized in the per-son of the sovereign: in deciding if the norm does or does not exist, the sovereign con-stantly decides about the exception. So, as in canguilhem, in Schmitt the decision may also verge on a kind of dispersion or vacillation, and political power may manifest itself equally—and in a sense more so—in the absence of a declared state of exception. This implication has also been read (following benjamin’s Origins of the German Mourning Play [Gs 1.1.245–46]) as an ongoing aversion of the sovereign to the critical decision. The sovereign tends to avoid decisions about the state of exception, but the decision about the producibility and reproducibility of norms continues incessantly in a passive and rela-tive way, at the level of what benjamin, in his essay on goethe’s ElectiveAffinities,calls “choice” (Wahl) and not “decision” (entscheidung) [Gs 1.1.189]. in canguilhem this choice-based model goes under the name of “planning”: “every preference for a possible order is accompanied, most often implicitly, by the aversion for the opposite possible order” [240]. Rather than seeing decision as a category of unique ontological dignity, for canguilhem the relation of norm and exception—of former norm and new norm—is presented as relative, ongoing, and without the possibility of truly decisive finality.

4

Autonormation: schmitt and Agamben

The claims derived from canguilhem are also central in agamben, who underscores the potentiality of the sovereign decision. “Potentiality” means that the sovereign is always deciding about the state of exception, even when he decides that the state of exception is not in effect. This point, however, when carried in canguilhem’s direction, will tend to dissolve the sovereign decision entirely and will moreover disperse the sovereign as decider and actor, as sovereign subject. agamben’s reading seeks to resist this kind of total liquidation of the concept of sovereignty: for him sovereignty and the sovereign decision are spread all over the map, but they nevertheless remain invested in figures and examples, specific localizations, inclusions and exclusions.

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in agamben’s version: no matter what the sovereign decides, he decides, and thus exception and norm are thought as a unity, a formal unity named “the sovereign decision.” Norm and exception are not temporally prior to law or order but are the condition of pos-sibility of both, existing simultaneously within the law and beyond it, made “continually operative” [Hse 109] by the relation of potentiality and in the sovereign’s potential to decide whether the norm is in fact the rule. This can be seen in a passage where agamben interprets hobbes’s state of nature according to the logic of the exception as an included exclusion. He further specifies that this exception belongs to no real epoch or time, but is instead a principle internal to the state and the nomos itself:

the state of nature [i.e. the state of exception] is therefore not truly external to nomos but instead contains it in a state of virtuality. the state of nature . . . is l’essere-in-potenza of the law, the law’sself-presuppositionas“natural law.”Hobbes, after all, was perfectly aware, as strauss has underscored, that the state of nature did not necessarily have to be conceived as a real epoch, but rather could be understood as a principle internal to the state, revealed in the moment in which it is considered “as if it were dissolved.” [Hse 35–36, transla-tion altered]

does this extreme emphasis on potentiality and on the “as if” within the exception create a problem in agamben’s argumentation? if the being in potenza of the state of exception suspends the categories of actual time and space by creating a wherever-whenever of pos-sibility, this would seem to change the register of Schmitt’s argument (who thinks histori-cal time in terms of the here and now of the personal decision) and make it much more general, unlocalizable, ahistorical, impersonal. Potentiality tends, as it were, to work by itself. Potentiality is also not exactly the same thing as interiority-exteriority, inclusion-exclusion, exception-rule. Potentiality, continually operative in its suspension of time and decision in favor of what might have been, results as history that does and does not happen, the transcendental possibility of history itself, but in these terms it would be im-possible to mark a specific historical moment at which “the state of exception became the rule”: potentiality, as that which allows this transformation, was always already there. The dawning indistinguishability of exception and rule, which plays such a key role in agamben’s analysis, might, however, still be readable as the historicization of the end of history—which, in terms of potentiality, would mean that potentiality no longer ex-ists. Such a diagnosis would not be far from the mark: for agamben the norm-exception distinction takes on a general epistemo-ontological function. The norm and the exception comprise the precondition of possibility for every distinction and differentiation, for the whole possibility of experience and knowledge. and thus the potentiality of the sovereign decision about the state of exception is the condition under which distinctions themselves do and do not come into being. based on this cognitive structure of potentiality, the rela-tion of exception to norm is not, as it was in Schmitt, one of sheer revelation, realization, representation, or manifestation. Instead the state of exception is a deficient revelation, a revelation of “the norm” in its deficiency, the revelation of the norm as a norm, the revela-tion of the norm in its own limited exceptionality. What is thus revealed, represented, or realized in the state of exception? Nothing other than the norm itself in its own absence. in the state of exception the norm represents itself in its own absence: the prior norm, along with every other possible norm, is revealed at once as a “metaphysical illusion.” The norm finds representation only when it is no longer there; whenever it is taken as given and self-evident, it is unrepresentable. The revelation of the norm in the state of exception is temporally retrospective—and prospective, in view of the reestablishment of some kind of norm—but this revelation could never be a revelation in a strong sense: no apocalypse, only the revelation of the absence of that which is revealed, bound by the strict mediacy of temporal sequence.

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The problematic representability and exemplarity of the norm plagues every emphat-ic conceptualization of it (for example, hildebrandt’s above). agamben focuses on this problem in his theorization of the example relative to exception and rule, thereby claim-ing that the norm is never representable as such. The norm can find representation only as an example, but then it is no longer a norm but rather a form of the exception: “The example is thus excluded from the normal case not because it does not belong to it but, on the contrary, because it exhibits its own belonging to it. . . . in every case . . . exception and example are correlative concepts that are ultimately indistinguishable” [Hse 22]. if the state of exception is not a revelation—of itself or of the norm—then it transpires in the factual nonexistence and nonpresence of the norm (understood as a prior norm), which is revealed as a contingent norm and a represented norm and thus as no norm at all (insofar as it no longer appears as necessary and immediate). the norm itself, therefore, if there is any such thing, can exist only as the unrepresentable space of potentiality, subtend-ing every factual norm or exception, in which every state is a potential norm. Thus the relation of norm and exception may achieve a certain cognitive transparence only in the exception in which the norm can only represent itself indirectly, during a moment when it is not present and in effect. agamben’s own use of examples in Homo sacer are subordinated to this philosophi-cal schema, wherein the example does not necessarily prove the rule or sustain the argu-ment so much as it serves to further its deterioration, to mis- or nonrepresent them. The underlying schema deteriorates in its own figuration, in its exemplification in figure. This may have the unfortunate effect that the larger argument of Homo sacer cannot be taken entirely literally. What if this “history” can only be understood as figure, fiction, cipher, manifestation, metaphor? What if the camp, for example—to vary one of agamben’s most infamous formulations—is only the metaphor of “the nomos of the modern”?15 This reading introduces a crucial instability: if there is no nomos except in figuration, then the camp cannot simply be the nomos of the modern. To further develop this point, i turn to a passage from the Schmitt citation that opens Homo sacer: “The exception is more interesting than the normal case. The normal proves nothing, the exception proves everything; the exception not only confirms the rule, the rule only lives at all from the exception” [Pt 21]. These two sentences mark Schmitt’s shift from the language of “the norm” to that of “the rule.” another shift happens at the same time: a new sphere comes into play as soon as “life,” the biological sphere, is in-troduced in its verb form, “to live,” which implicitly shifts the discussion away from the life-and-death sphere of pathology and toward the sphere of ethics, toward the how of the activity of living. This problem of ethics is invoked repeatedly at the end of Political theology’s first chapter, in the idea of “life,” a “philosophy of concrete life,” and in the idea that the rule, the norm—itself life—lives only through its exception (which thus can-not be directly understood as “death” or “pathology”). The synonymous connection of the norm to “life” is here explicitly authorized by Schmitt, but in a way it inverts the relation of the normal and pathological: the norm is not threatened by this exception; it is not threatened by the pathological, by what is life-threatening, but rather first comes to life through this threat. Schmitt’s general yearning for the production of an unconditionally valid life-norm is thus extended (comparable to what happens in hildebrandt above) into

15. For a more extended discussion of this problem of the status of the paradigm and the ex-ampleinAgamben’sargument,seeAndrewNorris’sessay“TheExemplaryException:Philosophi-calandPoliticalDecisions inGiorgioAgamben’shomo Sacer”:“Agamben’spositionnotonlyrelies upon a metaphor of boundaries that is at the very least debatable; in doing so it undermines itself.TheclearimplicationofAgamben’sownexplanationofwhatmakessomethingexemplaryorparadigmatic is that in claiming a paradigmatic status for the camps he is and can only be mak-inganunregulateddecisionthatcannotbejustifiedtohisreadersinanonauthoritarianmanner”[275].

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an intensely antinormative outburst against the merely mechanical conformism required by social systems. agamben composes his text in a way that draws attention to the latter aspect of Schmitt’s emphasis on the exception in the light of his hatred for the norms of the status quo. in particular, the opening Schmitt citation in Homo sacer omits a key sentence (and the English translation omits the ellipsis) from the concluding paragraph of the first chapter of Political theology. The elided sentence reads: “in der ausnahme durchbricht die Kraft des wirklichen lebens die Kruste einer in Wiederholung erstarrten mechanik [in the exception, the force of real life breaks through the crust of a mechanism frozen in repetition].” agamben, though he omits the sentence from the long citation, does not ignore it: he saves it for a crucial moment, some sixty-five pages later [Hse 76], at the end of the first of the three sections entitled “Soglia” (“Threshold”), where he juxtaposes “wirkliches leben [vita effetiva]” and benjamin’s “bloßes leben [nuda vita, bare life].” but what does Schmitt’s sentence say? it establishes another meaning of the excep-tion: the exception is “real life” and “concrete life,” which is opposed to the repetitive and “mechanical rule” of everyday life.16 The exception is life and has a vivifying effect upon life. The rule is not literally “death” but is comprised of the mechanical routines and rigidified norms of the everyday (of the “ant-men,” as Hildebrandt would say). The repetitive mechanics of everyday life produce a life that really lives only in its own ex-ception, only when the norm-producing machine of “life” momentarily stops producing. This seizure—it is strictly a caesura—is the interval when the “plan” (in canguilhem’s sense) is faced with the advent of the unforeseen, before the rule can clamp down by giv-ing language and representation to the exception. in this actual and real state of exception that precedes the sovereign decision about it, prior to all reflection, “real life” appears as the interruption of the program: as bare life, a life without example, anonymous, anomos, without representation. from this perspective it is possible to take up the sovereign decision once again, to reconnect it with this “zone of indifference,” as agamben calls it, between exception and rule, exception and norm. The clarification of this point is indispensable for the reading of Homo sacer: if the inversion and inseparability of the exception and rule is already present in every understanding of their relation, then what can be meant by a “zone of indifference” between them? if the exception is inherently capable of becoming the rule, and if there is in fact nothing more normal than the exception, then what is the shift that occurs when the exception and rule start to become indistinguishable? The zone of indifference, as agamben remarks in passing, but decisively, “takes the form of an irre-vocable decision” [Hse 153]. at stake is a decision, that—like all decisions in the strict sense—entirely revokes its own ability to decide, its own sovereignty as potentiality. i would like to call this structure of irrevocability autonormation: “The camp is thus the structure in which the state of exception—the possibility of deciding which founds sov-ereign power—is realized normally” [Hse 170]; “il campo è, cioè, la struttura in cui lo stato di eccezione, sulla cui possibile decisione si fonda il potere sovrano, viene realizzato normalmente” [Hsi 190, Agamben’s emphasis]. This is elsewhere specified:

16.ThomasSchestagurgeswithgoodjustificationthatSchmitt’ssentiment in this sentence not be taken too seriously: “As convincingly as these lines suggest the irreversibility of the preemi-nence of the exception above the rule—and who would not, confronted with the decision of choos-ingbetween‘reallife’and‘frozenmechanism,’unhesitatinglysidewithlife?—theyjustasequallypreserve the appearance of the strict divisibility of exception and rule, of deviation and repetition, as well as the illusion that the exception is merely one possible theme among others, equally able to be treated, addressed and discussed” [67]. schestag will not grant the sentence its apparent validity; the cognitive structure at stake in schmitt and Agamben is based on the possibility of a distinction that was never possible anyway. Agamben, however, does take the sentence seriously, and his reading is the point of departure for the present considerations.

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Just as the word of the führer is not a factual situation that is then transformed successively into a norm, but is the norm itself to the extent that it is living voice, is living norm, so that the biopolitical body . . . is not an inert biological presup-position to which the norm refers, but is at once norm and criterion of its own application, a norm that decides the fact that decides on its application. . . . in it [the word of the führer] . . . normation and execution, production of the law and its application are no longer in any way distinguishable moments. [Hse 172–73, translation altered]

Come la parola del führer non è una situazione fattizia che si trasforma succes-sivamente in norma, ma è essa stessa, in quanto viva voce, norma, cosí il corpo biopolitico . . . non è un inerte presupposto biologico cui la norma rimanda, ma è nello stesso tempo norma e criterio della sua applicazione, norma che decide il fatto che decide della sua applicazione. . . . in essa . . . normazione ed es-ecuzione, produzione del diritto e sua applicazione non sono piú in alcun modo momenti distinguibili. [Hsi 193–94]

Agamben’s coordination of the self-reflexive norm—sovereignless—and the “living voice” is of the greatest significance: it is as if, in the living voice, the sovereign were able to overcome the distance that separates human law from biological functions (in can-guilhem’s sense), as well as the difference between legislative and executive, between the decree and its implementation. The autonormative system thus becomes organic or rather pseudoorganic: it may not be truly organic, but it is represented as having become organic. Simply saying or legislating immediacy may not immediately make it so. Thus, unfortunately for the Führer, he is still dependent on an administrative apparatus respon-sible for implementation—and the abolition of regulative distance must itself be legislat-ed, or at least implemented de facto, which is to say: normated. The final implementation of this structure, however—and precisely counter to its intent—necessarily represents a complete rupture between the sovereign and the entire realm of implementation and ex-ecution. The sovereign’s words autoimplement, but the entire sphere of implementation increasingly recedes from the reach of the sovereign. in deciding in advance about the status of his own decision, the decision is made irrevocable and the state of the sovereign’s “metaphysical illusion” is realized as norm; this state coincides, as agamben suggests in the same passage, with benjamin’s under-standing of the baroque monarch who is constitutively unable to make a decision. To be the subject of an irrevocable decision, and to actually make such a decision, is to revoke one’s own status as the one who decides, to effectively revoke one’s self. This is in fact the defining characteristic of the sovereign: the sovereign is the one who irrevocably decides and who is thereby rendered ontologically incapable of further decision. The sovereign’s “autonormation” of his own decision produces a zone of the simultaneity and contiguity of exception and norm, which, though inherent to the logic of the exception itself, is the realization of a suicidal structure: the sovereign’s decision tends toward its own (ir)revocation. The solution to these dilemmas, if solution is the right word,17 may thus lie at the limit of the process, in what agamben has elsewhere called the “revocation of every

17.OnthispointseeEvaGeulen’sgiorgio agamben zur einführung. Geulen, who speaks of the“ambivalence”ofAgamben’sconceptionofbiopoliticalpower,concludesthatAgambendoesnot in any conventional sense offer an “alternative” to biopolitics and the sovereign ban: “Only . . . at the point of total hopelessness [ausweglosigkeit] . . . does the reversal occur” [121]. thus Agamben’scritiqueofbiopoliticalpowerdoesnotespouseitsundoingorovercoming;heratherpositions his theory within a kind of futurism, in the hope that new life-forms—life-norms—will emerge from within the biopolitical horizon.

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vocation,” in the elimination of the normative status of all norms.18 The autonormation of the sovereign decision, on the other hand, represents the irrevocable concretion and subsequent neutralization of “decision” within the center of “life,” so that a certain excep-tion becomes the inalterable medium of the norm, of life’s facticity. This autonormation of the sovereign decision expresses the sovereign’s lack of sovereignty relative to his decision; it is the sovereign’s subjection to the irrevocability of decision. The conse-quence for Homo Sacer as a whole, therefore, at its most basic and pathetic register, is the diagnosis of an ongoing global-institutional suicide in the omnipresent exhaustion of the sovereign decision in automatic administrative function. Agamben in this sense opts for and intensifies certain implications (and extravagances) of Political Theology against the institutional-administrative logic that becomes characteristic of the period of Legality and Legitimacy. (Already in Roman Catholicism and Political Form, however, written in close proximity to Political Theology, Schmitt places a much greater emphasis on what Weber would call “traditional legitimacy”). It is ultimately a question of whether the antinormative stance of Agamben’s Homo Sacer represents an overtheorized and politically ambiguous rejection of bureau- and technocratic modernity—comparable to Schmitt’s “frozen machine,” Hildebrandt’s “ant-men” or, perhaps most classically, Weber’s “iron cage [stahlhartes Gehäuse]” [PE 203]—or whether his development of the concept of “autonormation” may provide a unique insight into how this kind of normative-historical dead end may be realizing it-self. Schmitt’s argument, however, at least in the “frozen machine” sentence, would lead to a different conclusion: that the temporal-ontological ineradicability of the exception will force a continuance of history—for better or worse, for as long as humanity itself survives. This would not exclude (but rather decisively includes) the possibility of future cataclysm and of the most extreme kinds of horror, but it also would not assert the idea of a dawning history as irrevocability. Homo Sacer, however, observes a proliferation of the structure of the end and the suicide of decision, which seems to lead down a one-way street toward the total dominance of administered life in a state where things “take care of themselves” (with capitalism lending a hand)19 and based on a “concretely situational or-dering and shaping” (i.e. administrative planning) within a sphere of right and decree that is becoming progressively more removed from the sphere of law in its “old-fashioned” parliamentary-legislative model. In closing, it is important to underscore that the transformations in question are not primarily a matter of blurring the boundary between “life and death.” The political stakes are exemplified not only in atrocities and genocides, but also in “everyday” and so-called normal life everywhere: dramatic visions of global catastrophe may ultimately distract from Agamben’s real question, a question of the status of lived life—as consciousness, freedom, decision—within planned modern systems.

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Roazen. Stanford, CA: Stanford UP, 1998. [HSE] Trans. of Homo Sacer: Il potere sovrano e la nuda vita. Torino: Giulio Einaudi, 1995. [HSI]

18. See Agamben’s Il tempo che resta: Un commento alla Lettera ai Romani. In the passage in question here [TCR 29–32], Agamben’s reading of Paulinian messianism focuses on the hos me, “come non”—“as if not”—of 1 Corinthians 7: 29–32. The crucial sentence of the passage, emphasized, formulates the status of the messianic “vocation,” of messianic “life”: La vocazione messianica è la revocazione di ogni vocazione [TCR 29]. 19. On this point, regarding capitalism as a mode of automatic legitimation, see in particular Walter Benjamin’s reading of Weber’s Protestant Ethic, “Capitalism as Religion,” as well as Wer-ner Hamacher’s essay on Benjamin’s fragment.

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