Author Archives: ltaylor

notes on Timothy Campbell’s introduction to Bios

In this introduction, Campbell seeks to put Esposito’s work and the concept of immunity into intellectual and political context. Specifically, he contextualizes the book by making more explicit the dialogue with certain contemporary authors, elaborating a genealogy of biopolitics, and pointing towards certain unanswered questions regarding biotech and contemporary politics.

First, however, Campbell explains how Esposito has sketched the relationship between community and immunity in two earlier works: Communitas: Origin and Destiny of the Community and Immunitas: the Protection and Negation of Life. In particular, Esposito draws out the meaning of the Latin root munus, “a category of gift that requires, even demands, an exchange in return.” Campbell explains the relationship between community and immunity:
“For Exposito, immunity is coterminous with community.  It does not simply negate communitas by protecting it from what is external, but rather is inscribed in the horizon of the communal munus… Immunity connotes the means by which the individual is defended from the ‘expropriative effects’ of the community, protecting the one who carries it from the risk of contact with those who do not (the risk being precisely the loss of individual identify)… the condition of immunity presupposes community but also negates it… “ (x-xi)

Campbell then delineates Derrida’s contributions to immunity as a paradigm, and highlights where Esposito and Derrida diverge. Both authors emphasize the impact of the immunity paradigm on contemporary politics, particularly after September 11, 2001.  Derrida, however, sees immunity as always negative, as auto-immunity.  “Esposito clearly refuses to collapse the process of immunization into a full-blown autoimmune suicidal tendency at the heart of community.” (xvii) Esposito instead puts forth a proposal for an affirmative biopolitical immunity. Campbell outlines this proposal later in the chapter, suggesting a radical affirmation of life and an openness to community and difference.  The example of pregnancy and birth is highlighted as an example of immunization that fortifies or strengthens difference. “Esposito extends the category of birth to those moments in which the subject, ‘moving past one threshold,’ experiences a new form of individuation.” (xxxii)

Campbell, in some of the more interesting parts of the introduction in my opinion, puts Esposito into conversation with contemporary Italian political thought, particularly Agamben, Hardt and Negri. Starting with Agamben, Campbell glosses homo sacer as “a kind of flattening of the specificity of a modern biopolitics in favor of a metaphysical reading of the originary and infinite state of exception.” (xxii) Campbell criticizes Agamben for being too general or totalizing when foregrounding the state of exception, and not sufficiently historically specific, stating that “The result is a politics that is potentially forever in ruins… or a politics that is always already declined negatively as biopolitical.” (xxiii) Esposito’s emphasis on immunity, on the other hand, emerges particularly in the modern era. In his understanding of Nazi thanatopolitics, Esposito foregrounds biology or biocratic elements: “Esposito refuses to superimpose Nazi thanatopolitics too directly over contemporary biopolitics.  Rather, he attempts to inscribe the most significant elements of Nazi biopolitical apparatus in the larger project on immunizing life through the production of death… By focusing on the ways in which bios becomes a juridicual caterogy and nomos (law) a biologized one, Esposito doesn’t directly challenge Agamben’s reading of the state of exception as an aporia of Western politics… Rather, he privileges the figure of immunization as the ultimate horizon within twhich to understand Nazi political, social, juridical, and medical policies.  In a sense he folds the state of exception in the more global reading of modern immunity dispositifs.”(xxiv-xxv)

Campbell also describes Hardt and Negri’s understanding of a new regime of biopolitical power, and the new subjectivities and collectivities that emerge to contest it in the form of the multitude. According to Campbell, their affirmative vision of collective resistance, of a new commons, does not address the risks implicit in any community, the potentially negative, exclusionary, and violent power immunity highlighted by Esposito.

Campbell’s concluding discussion of biotech and contemporary politics extrapolate Esposito’s analysis to conversations about the war on terror and neoliberal eugenics. Campbell does explicitly address the similarities and differences of Nazi thanatopolitics and contemporary biotech and eugenics, stating:
“If for Nazism man is his boy, and only his body, for liberalism, beginning with Locke, man has a body, which is to say he possesses his body – and therefore can use it, transform it, and sell it much like an internal slave.  In this sense liberalism – naturally I’m speaking of the category that founds it – overturns the Nazi perspective, transferring the property of the body from the state to the individual, but within the same biopolitical lexicon.” Campbell uses this to extrapolate from Esposito a response to Dworkin’s embrace of biotechnology, and challenges in particular the way that the individual subject / citizen becomes the only recognized life, excluding other forms of life.

In general, I found the introduction to be helpful and enjoyable, particularly the connections and conversations with contemporary Italian authors, the political context of biotechnology, and the war on terror.  I was doubtful of the quick glosses of certain authors, but don’t feel confident or well read enough in the different authors to assert another interpretation.  Though, generally speaking, it seemed that Campbell’s embrace of the paradigm of immunity, and the affirmative potential within biopolitics, led him to dismiss certain interpretations because they did not offer a similar potential of positive or life-affirming power within a biopolitical paradigm.  I’m quite doubtful of this internal potential, and consequently less inclined to write off authors who see the possibilities for resistance from outside rather than within.

“From market to market: Bio-prospecting’s Idioms of Inclusion” by Cori Hayden – notes and response

<apologies for the delay! here are notes from last week…>

This article is an anthropological examination of bio-prospecting, or “pharmaceutical companies’ use of ‘traditional knowledge’ as leads for developing new drugs.” (359) In this piece, Hayden takes a closer look at a particular bio-prospecting project in Mexico to reveal some of the paradoxical ways that communities are constructed as necessary contractual partners and recipients in bio-prospecting arrangements. I found this piece to be interesting, though strange because Hayden seems to do an anthropology of a bio-prospecting project without stepping back and asking some larger questions about power and property relations, and in particular the neo-colonial context in which bio-prospecting seems to operate. While some of questions of power and institutional relationships are explored in the piece, the biggest questions to me are addressed as side notes, or to provide historical context.

The main question Hayden attempts to answer relates to the impact of a new ethics of bio-prospecting, particular the idea of benefit-sharing. Recognized in 1992 at the UN Convention on Biological Diversity, this new ethic was a mandate for “drug and biotechnology companies [to] share economic benefits with source nations and communities if they desire continued access to Southern resources.” (359) In this article, Hayden looks at a particular research method in Mexico to examine the paradoxical effects and new relationships and publics that are created from this injunction.  Hayden points out the ways in which “community” is abstracted and idealized, and constructed as both outside of the market and as an essential partner in contractual agreements for bio-prospecting.  Such idioms or grammars recognize certain contributors and communities while excluding others.

This emerging language is connected to larger constructions of green capitalism and sustainable development:
“The ICBG, then, like the CBD itself, belongs to the well-populated annals of “market-mediated” conservation and development initiatives that took root in the late 1980s and early 1990s. Here, biodiversity-derived drugs promise not only corporate wealth, but, if harnessed and redirected through the proper redistribution mechanisms, they might well generate more biodiversity and economic prosperity in the South to boot (Eisner and Beiring 1994; World Resources Institute et al. 1993; World Resources Institute et al. 1992; see also Orlove and Brush 1996).” (361)
Here Hayden points out the neoliberal logic underlying bio-prospecting, where the market is trusted to mediate questions of ethics, of power, and of distribution of benefits.

More specifically, Hayden points out how this new ethics of benefit sharing creates and recognizes certain kinds of communities, including them in contracts; and does not recognize or compensate other forms of community and knowledge. “The NIH, in its attempts to wed drug discovery to the social goods promised by sustainable development, stands as the guardian of a somewhat romanticized local that cannot tolerate the presence of market transactions. The Mexican scientists, the very people in charge of identifying and enrolling these local participants, counter with a few powerful idealized models of their own—nationalized mixtures and obligation-free, pure market transactions.” (366-367) This benefit-sharing structure, and in particular the contracts that formalize this exchange, require the mutually exclusive, binary categories of market and community. These categories, imposed through the contract, structure relationships and identities in order to allow for the flow of material resources. Or, they exclude certain identities and relationships from being eligible for material benefits.  In particular, indigenous and communal identities are recognized to the extent that they remain pure, or uncontaminated by the market.

It seems that this idea of reciprocity, providing communities with benefits, emerges out of a history of struggle and contestation, in particular against Intellectual Property Rights (IPR) as a form of colonization and enclosure. Hayden cites how Mexico in particular sought to nationalize and thus protect traditional knowledge and biological resources in the global south.

This article also pointed towards questions of language, as did other articles this week. For example, why accept the title of bio-prospecting when what is being sought is not minerals or hidden natural resources? It seems that this name justifies the appropriation of traditional knowledge and intellectual resources of the global south by naming them as ‘natural.’ Being natural resources allows the researchers to appropriate for themselves the patents or intellectual property rights.  Others have used language such as enclosure, bio-piracy, colonization, etc.

This piece, and the conversation about green capitalism and multicultural development, connects closely with things like climate talks, free trade agreements and policy, indigenous rights and the construction of indigeneity.  In terms of bio-politics, the piece points out the ways in which our understandings of the biological, and of the connections between plant life and human life, are framed in woefully inadequate ways in contemporary capitalism.

Notes on Cooper’s “The Unborn, Born Again,” Ch. 6

In this chapter, Cooper proposes new ways to understand the relationship between the new Christian right’s agenda of a “culture of life,” the neoconservative position on biotech, and the current form of US imperialism.  Far from being marginal or irrelevant, Cooper argues that the philosophy and theology of the Christian right is tightly bound with US economic and imperial philosophies.

Cooper begins the chapter with George W. Bush’s seemingly paradoxical stance on stem-cell research, announced in August of 2001: proclaiming the sanctity of life, particularly that of the unborn while simultaneously allowing for “the most liberal of interpretations of patent law, allowing the patenting of unmodified embryonic stem cell lines.” (153)  Through the provision of universal healthcare to the unborn, fetuses are legally given rights in the US at the same time as embryonic stem cells are becoming property, becoming patented and commodified in unprecedented ways.

P 159 – Modern capitalism, in other words, is a social form in which the law no longer figures as a source of creation, but rather as an institution charged with the power of sustaining the faith a posteriori, through the threat of violence. In stark contrast to the economic theology of the medieval church, capitalism is a mode of abstraction that generalizes the logic of usury and constantly revolutionizes all institutional limits to its self-reproduction.

p 160-161 – Moreover, the uniquely American evangelical experience was reflected in an enthusiasm for wealth creation far surpassing its counterparts in the European tradition. Here, suggests Noll (ibid., 174), the anti-authoritarianism of the American evangelicals expresses itself as an aversion to all foundational value, a belief in the powers of money that separates promise from all institutional guarantee and regulating authority, figuring the market itself as a process of radical self-organization and alchemy. In this way the doctrine of the new birth merges imperceptibly with a theology of the free market, one that situates the locus of wealth creation in the pure debt form-the regeneration of money from money and life from life, without final redemption. This is a culture of life-as-surplus that is wholly alien to the Catholic doctrine of the Gift and its attendant political theologies of sovereign power. Pushed to its extreme conclusions, evangelicalism seems to suggest that the instantaneous conversion of the self-which is held to render an ecstatic surplus of emotion-is the emotive equivalent of a financial transmutation of values, the delirious process through which capital seeks to recreate itself as surplus.

P 161-162 – I argue that U.S. imperialism today is founded on the precarious basis of a perpetually renewed debt-and thus seems to take the evangelical doctrine of wealth creation to its extreme conclusions.

P 164 – As a nation, the United States no longer rests on any minimal reserve or substance but, in synergy with the turnover of debt, exists in a time warp where the future morphs into the past and the past into the future without ever touching down in the present. In economic terms, then, the very idea of the American nation has become purely promissory or fiduciary-it demands faith and promises redemption but refuses to be held to final account. Its growing debt is already renewed just as it comes close to redemption, already born again before it can come to term. America is the unborn born again.

P 165 – U.S. imperialism, in other words, needs to be understood as the extreme, “cultish” form of capital, one that not only sustains itself in a precarious state of perpetually renewed and rolled-over nationhood, but that also, of necessity, seeks to engulf the whole world in its cycle of debt creation. The economic doctrine corresponding to U.S. debt imperialism can be found in several varieties of neoliberalism, in particular the supply-side theories of the Reagan era. Its theological expression can be found in neo-evangelicalism, the various revived and militant forms of Christian evangelical faith that sprang up in the early 1970s.

P 168-169 – What distinguished this movement from both mainline Protestantism and earlier evangelical revivals was its intense focus on the arena of sexual politics and family values. Faced with a rising tide of new left political demands, from feminism to gay rights, the evangelical movement of the I970s gave voice to a newfound nostalgia-one that obsessed over the perceived decline of the heterosexual, male-headed, reproductive white family.

P 171 – Herein lies the novelty of (neo-)fundamentalism, of fundamentalism for the neoliberal era: in the face of a politics that operates in the speculative mode, fundamentalism becomes the struggle to reimpose the property form in and over the uncertain future. This property form, as the right to- life movement makes clear, is inextricably economic and sexual. Productive and reproductive. It is ultimately a claim over the bodies of women. Except here the name of the dead father is replaced by the image of the unborn child as sign and guarantor of women’s essential indebtedness.


Questions –

What exactly is the relationship between the neo-evangelical Christian right and US economic policy and imperialism?

What do people think of the proposed importance of the philosophy of the new Christian right?

Does the idea of debt imperialism make sense to other people?  Can anyone explain this particular economic idea, and its relationship to supply side economics?

What is the idea of time and temporality that is part of the philosophy and theology of the new Christian right?  How does this relate to debt and financial and economic policy?

How does this match up to people’s own experiences / encounters with the Christian right?

D’Emilio – “Capitalism and Gay Identity”

John D’Emilio, “Capitalism and Gay Identity”1983

(summary at the beginning, comments and questions at the end)

D’Emilio opens the piece discussing gay liberation in the 70s and the backlash in the 80s, pointing out the need for new strategies to “preserve our gains and move forward.”  He asserts the importance of “a new, more accurate theory of gay history” as part of this project, in particular overcoming the invented mythology of “silence, invisibility, and isolation” and the consequent “overreliance on a strategy of coming out.” (101)

Thesis: “I want to argue that gay men and lesbians have not always existed.  Instead, they are a product of history and have come into existence in a specific historical era.  Their emergence is associated with the relations of capitalism; it has been the historical development of capitalism – more specifically, its free labor system – that has allowed large numbers of men and women in the late twentieth century to call themselves gay, to see themselves as part of a community of similar men and women, and to organize politically on the basis of that identity.”  (102)

The historical trajectory D’Emilio traces begins with the colonial family as a self-sufficient and mutually dependent unit.  With the rise of wage labor, he traces the decline of the self-sufficiency of the family, and highlights the new ideological significance of the family as “the means through which men and women formed satisfying, mutually enhancing relationships… The family became the setting for a ‘personal life,’ sharply distinguished and disconnected from the public world of work and production.” (103) With the rise of wage labor, the birthrate also declined dramatically, and sexuality could then be released “from the ‘imperative’ to procreate.” This separation “created conditions that allow some men and women to organize a personal life around their erotic/emotional attraction to their own sex.” The ideological meaning of heterosexuality also shifted from marriage and children to intimacy, happiness, and pleasure.

D’Emilio cites WWII as a time of drastic changes, particularly movement across the country and the re-organization of large groups of people into same-sex living and working conditions. “The war freed millions of men and women from the settings where heterosexuality was normally imposed.” (106-7) Gay and lesbian communities were created following WWII and into the 50s and 60s.  “Gay community was a pre-condition for a mass movement, the oppression of lesbians and gay men was the force that propelled the movement into existence.” (107-108)

D’Emilio explains the persistence of homophobia and heterosexism with “the contradictory relationship of capitalism to the family. On the one hand, as I argued earlier, capitalism has gradually undermined the material basis of the nuclear family by taking away the economic functions that cemented the ties between family members… On the other hand, the ideology of capitalist society has enshrined the family as the source of love, affection, and emotional security, the place where our need for stable, intimate human relationships is satisfied.” (108) “Thus, while capitalism has knocked the material foundation away from family life, lesbians, gay men, and heterosexual feminists have become the scapegoats for the social instability of the system.” (109)

D’Emilio then lists a number of implications for struggle.

1)   “we are not a fixed social minority composed for all time of a certain percentage of the population… Capitalism has created the material conditions for homosexual desire to express itself as a central component of some individuals’ lives; now, our political movements are changing consciousness, creating the ideological conditions that make it easier for people to make that choice.” (109)

2)   “Our movement may have begun as the struggle of a minority, but what we should now be trying to ‘liberate’ is an aspect of the personal lives of all people – sexual expression.” (110)

3)   “The elevation of the family to ideological preeminence guarantees that capitalist society will reproduce not just children, but heterosexism and homophobia.  In the most profound sense, capitalism is the problem.” (110) Specific things to support, as a result, are: “issues that broaden the opportunities for living outside traditional heterosexual family units,” “rights of young people,” and “structures and programs that will help to dissolve the boundaries that isolate the family, particularly those that privatize childrearing.” (111)

D’Emilio concludes by calling for the prefiguring of relationships and society in “the building of an ‘affectional community.’”  Specifically, to build “networks of support that do not depend on the bonds of blood or the license of the state, but that are freely chosen and nurtured.” (111)


I found the D’Emilio piece compelling, accessible, and refreshing to read. While I don’t know much about American sexual history or queer histories, the historical account grounded in an analysis of economic changes seemed convincing, if a bit totalizing. Does anyone know if this analysis of the history of gay and lesbian communities in the US is accurate?

The historical argument does lead neatly into the strategy of creating not only ideological but material conditions that allow for more people to exist outside of the heterosexual family. I appreciated the consequent focus on material needs and building affective communities. This seems to contrast sharply with the focus of contemporary mainstream GLBT struggles for recognition and representation.  I’m curious what other people thought of D’Emilio’s proposal to build affective communities and advocate for material resources and support as a direction of queer / gay struggle. Does this seem compelling? Obvious? Misguided?

Rhetorically, I agreed with D’Emilio that it’s a tactical error to argue against homophobia by saying homosexuality is ahistorical or eternal, biological, etc.  As he points out, this sets up a situation where being gay is assumed to be a poor second, acceptable only if it’s not a choice. This reminds me of a broader strategic point that David Halperin makes in Saint Foucault about refusing to engage homophobic discourse, refusing to enter into debates about truth claims, but instead examining the power relations that allow the question to be framed as such.

That also makes me want to know more about the formation of the heterosexual family. While D’Emilio explores this some in this piece, it seems like he doesn’t go far back enough. He takes as his starting point the colonial New England family. But what is the relationship between colonization and the creation of the family and heterosexuality? And, particularly given D’Emilio’s statement that “gay men and women of the 1940s were pioneers,” what is the relationship of waves of gay migration to frontiers, borders, and to gentrification?

Stoler, Carnal Knowledge and Imperial Power, Ch. 3

Ann Laura Stoler – Carnal Knowledge and imperial power: race and the intimate in colonial rule (2002)

Ann Laura Stoler is a professor of anthropology and historical studies at The New School for Social Research in New York. Stoler’s research interests include: “Politics of knowledge; colonial pasts/postcolonial presents; critical race theory; histories of sentiment & sexuality; historical ethnography.”

Ch. 3 – Toward a genealogy of racisms: The 1976 Lectures at the College de France

In this chapter, Stoler does a close reading of Foucault’s The College de France lectures, placing them alongside the last chapter in the History of Sexuality. In particular, Stoler follows and digs into Foucault’s understanding of race and biopower. “I examine what the lectures say about the discursive production of unsuitable participants in the body politic, and how the maintenance of such internal exclusions were codified as necessary and noble pursuits to ensure the well-being and very survival of the social body by a protective state.” (62) Placing these ideas into a broader academic and historical context, she highlights significant contributions of Foucault while pointing out silences and omissions. Stoler finishes by pointing out directions for further inquiry, particularly the central place of imperialism in the construction of race, and the place of gender.

Stoler first specifies the way in which Foucault approached questions of race and racism. Foucault’s main topic of interest is not primarily race or racism, but instead “on the modern state and the emergence of state racism as a part of it. It is not racist practice that he tracks, but rather a new form of historical analysis, emerging in the seventeenth century that comes to conceive of social relations in binary terms.” (56) While tracing this genealogy that Foucault proposes, Stoler also highlights certain methodological contributions and insights: “we are privy to Foucault’s grappling with what I take to be one of the hallmark features of his work: not only a search for the discontinuities of history as so many commentators have claimed, but a more challenging analytic concern with the tension between rupture and reinscription, between break and recuperation in discursive formations… What concerns him is not modern racism’s break with earlier forms, but rather the discursive bricolage whereby an older discourse of race is “recovered,” modified, “encased,” and “encrusted” in new forms.” (61)

Sovereignty – 64

Emergence of the discourse of the war of races – 65-6

Transcription of this 17th century idea into biological / nationalist formation, and into class struggle

What’s new about Foucault’s understanding of race: 68-69
– “not based on successive meanings of race”
– 19th century racism “is not consolidated in biological science, but more directly in the biologizing power of the normalizing state”
– Polyvalent mobility of race: “Race has not always been what we might assume, a discourse forged by those in power, but on the contrary, a counter-narrative, embraced by those contesting sovereign notions of power and right, by those umasking the fiction of natural and legitimate rule.” and “racial discourses are not only righteous because the profess the common good; they are permeated with resurrected subjugated knowledges, disqualified accounts by those contesting unitary power and by those partisan voices that speak for the defense of society.’
– Not a scapegoat theory of race. “For Foucault, racism is more than an ad hoc response to crisis; it is a manifestation of preserved possibilities, the expression of an underlying discourse of permanent social war, nurtured by the biopolitical technologies of ‘incessant purification.’ Racism dos not merely arise in moments of crisis, in sporadic cleansings. It is internal to the biopolitical state, woven into the weft of the social body, threaded through its fabric.”

War of races as a counter history: “the discourses of class and revolution are not opposed to the discourse of social war but constituted by it… they are neither independently derived ideologies nor alternate ‘persuasive views’; their etymology is one and the same.” (72-73)

Foucault’s mention of colonialism – 74-75

Emergence of the nation and nationalism – 76

Biopower, very clear, helpful reading from and glossing Foucault – 80-84

“Foucault ends his final lecture here on a prescient and ominous note. While the deadly play between a power based on the sovereign right to kill and the biopolitcial management of life are exemplified in the Nazi state, it is not housed there alone. His argument is broader still, namely that this play between the two appears in all modern states, be they fascist, capitalist or socialist… Invoking nineteenth century popular mobilizations revered by the French left, the Communards, and the Anarchists, Foucault contended that their notions of society and the state (or whatever authoritarian institutions might substitute for it) were predicated on the strongly racist principle that a collective body should manage life, take life in charge, and compensate for its aleatory events. In doing so, such forms of socialism exercised the right to kill and to disqualify its own members.” (86-87)
– Question from Stoler – “should this rightly be labeled a ‘racist principle or be understood as a particular effect of biopolitical technologies more generally?”

“To my mind, one of the seminar’s most striking contribution is the tension that underwrites Foucault’s historical analysis: namely, that between rupture and reinscription in the discourse of history and the implications it carries for the practices predicated on it.” (88-89)

Question from Stoler – what are the dynamics of the transformation to state racism and biopower? What are “the discursive and non-discursive mechanisms that account for the selective recuperations of some elements and not others”? (89)

What’s missing
“Despite some for the clarifications that the lectures provide, a number of critical lapses and ellipses remain: the most obvious being the connection between the normalizing bourgeois project in which racisms have developed and the imperial context of them. There is no place made in Foucault’s account for the fact that the discourse that surrounded the fear of ‘internal enemies’ was one that was played out over and over again in nineteenth-century imperial contexts in specific ways… For the discourse of the nation, as much recent work has shown, did not obliterate the binary conception of society, but rather replaced it with a finer set of gradated exclusions in which cultural cometpetencies continued to distinguish those who were echte Dutch, pure-blood French, and truly English… Racism has not only derived from an ‘excess’ of biopower as Foucault claimed, but, as Balibar argues, from an ‘excess’ of nationalism.” (92-93)

“Finally, the most glaring omission from Foucault’ s analysis is its non-gendered quality. Just as feminists have long questioned how Foucault could write a history of sexuality without gender or for that matter women, we could query a genealogy of racism and a history of normalizing biopolitical states that fail to account for the formative work that gender divisions have played in them. State racism has never been gender-neutral in the management of sexuality; gender prescriptions for motherhood and manliness, as well as gendered assessments of perversion and subversion are part of the scaffolding on which the intimate technologies of racist policies rest.” (93)

Notes on Carl Schmitt’s Political Theology, Ch. 2 and 3

Political Theology (1922), Carl Schmitt

From the Stanford Encyclopedia of Philosophy:

“Carl Schmitt (1888–1985) was a conservative German legal, constitutional, and political theorist. Schmitt is often considered to be one of the most important critics of liberalism, parliamentary democracy, and liberal cosmopolitanism. But the value and significance of Schmitt’s work is subject to controversy, mainly due to his intellectual support for and active involvement with National Socialism.”

Ch. 2 Problem of Sovereignty as the Problem of the Legal Form of the Decision

In this chapter, Schmitt continues to explore the meaning of sovereignty and its relationship to the state and to law. He summarizes and deconstructs the several liberal theories of sovereignty, and concludes with an embrace of Hobbes and a “decisionist” model of law and the state.

He responds to several different political philosophers, contemporaries of his, including Kelson, Hugo Krabbe, Otto von Gierke, and Kurt Wolzendorff. In general, the first two emphasize the rule of law as the defining feature of the state. Von Gierke goes a different direction, stating that the state expresses the will of the people. Schmitt points out a variety of problems in his contemporaries’ theories, from a false sense of unity in Kelson to a risk of authoritarianism in Wolzendorff.  He ends with a critique of objectivity as a characteristic of the state and law:

“The multifarious theories of the concept of sovereignty – those of Krabbe, Preuss, Keslen – demand such an objectivity.  They agree that all personal elements must be eliminated from the concept of the state. For them, the personal and the command elements belong together.” (29)

“All these objections fail to recognize that the conception of personality and its connection with formal authority arose from a specific juristic interest, namely, an especially clear awareness of what the essence of the legal decision entails.” (30) Schmitt then points out that the aforementioned theorists do not address who has the authority to execute the law.

He finishes the chapter by coining a new term, decisionist, to refer to Hobbes: “The form that he sought lies in the concrete decision, one that emanates from a particular authority.  In the independent meaning of the decision, the subject of the decision has an independent meaning, apart from the question of content.  What matters for the reality of legal life is who decides.”

Chapter 3 – Political Theology

Schmitt starts this chapter by explaining that the modern theory of the state is continuous with and has replaced theology: “The omnipotent God became the omnipotent lawgiver.”(36) With this shift, he also makes the analogy between the miracle in theology and the state of exception.

He goes on to explain how Enlightenment rationality “rejected the exception in every form.”(37) He later explains, “the sovereign, who in the deistic view of the world, even if conceived as residing outside the world, had remained the engineer of the great machine, has been radically pushed aside.  The machine now runs by itself.” (48)

Despite the rejection of the state of exception, the state is omnipresent:

“… whoever takes the trouble of examining the public law literature of positive jurisprudence of its basic concepts and arguments will see that the state intervenes everywhere.  At times it does so as a deux ex machina, to decide according to positive statute a controversy that the independent act of juristic perception failed to bring to a generally plausible solution; at other times it does so as the graceful and merciful lord who proves by pardons and amnesties his supremacy over his own laws.  There always exists the same inexplicable identity: lawgiver, executive power, police, pardoner, welfare institution.” (38)

“If viewed from this perspective of the history of ideas, the development of the nineteenth century theory of the state displays two characteristic moments: the elimination of all theistic and transcendental conceptions and the formulation of a new concept of legitimacy. The traditional principle of legitimacy obviously lost all validity… Since 1848 the theory of public law has become ‘positive,’ and behind this word is usually hidden its dilemma; or the theory has propounded in different paraphrases the idea that all power resides in the pouvoir constituant [constituent power] of the people, which means that the democratic notion of legitimacy has replaced the monarchical.” (51)

Schmitt concludes with a return to Hobbes and Cortes, pointing out that for Cortes, “there was thus only one solution: dictatorship.” And, finally, Schmitt repeats the Latin quote from Hobbes, “Autoritas, non veritas facit legem,” or Authority, not virtue makes the law.