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Wednesday, March 23, 2016

Lost in the Aegean ...

It may seem it was very long ago but ...

In July 1934, the German jurist and political theorist Carl Schmitt, considered to have been the chief political theorist of national socialism, published in the Deutsche Juristen-Zeitung (the journal of national socialist lawyers which he was editor in chief of) an article that relates to his Political Theology and his theory of sovereignty [1] entitled "Der Führer schützt das Recht" (The Führer protects the Law), effectively justifying in it the murderous Night of the Long Knives by recognizing in Führer's sovereign authority the "highest form of administrative justice" (höchste Form administrativer Justiz). 

I was reminded of this as I was thinking how international treaties and legislation regarding refugee protection have been flouted by EU member states to the point that they are not worth the paper they have been printed on, or how our right of free movement is being curtailed by regimes of 'temporary' suspensions or exemptions, or even how our right to criticism of particular policies (Israel, wistleblowing restrictions, espionage etc) is becoming at best subject to conditionality. If one adds to the equation the current debate on stripping certain people of their citizenship it is clear that the logic of a state of exception is with us. 

A policeman pushes refugees behind a barrier at
Greece's Macedonian border, near the village of Idomeni

I would argue that we live at a moment when the Sovereign exercises their sovereignty by stepping outside of the time and space of law and imposing a state of exception taking the form of extrainstitutional -Schmitt calls it euphemistically administrative- 'justice'. There has rarely in the modern era been a time when the Rechtsstaat has been so undervalued from all sides of the political spectrum, so divested of its capacity to regulate interactions on the basis of the general applicability of a legal framework. This is a treacherous terrain that is hard to navigate, a dangerous and violent space where human rights are devoured by the black hole of political expediency, where refugees, but also citizens and residents live in a state of legal and, ultimately, existential uncertainty. It is a domain where the brutality of a biopolitics coupled with the securitization of the lifeworld renders citizens pray for those who can benefit from the state of exception. This is the type of ground where fascism and its perpetual emergency dystopia took roots in the interwar period when fatigue with the 'niceties' of the Rechtsstaat led to its eventual suspension and the descent to decades of darkness. 

And as I can see the dark clouds in the horizon I cannot but shudder ...

(1) According to Schmitt's definition, sovereign is he [sic] who decides on the state of exception: a person or institution capable of bringing about a total suspension of the law and then to use extra-legal force to normalize the situation (PT 5). Any legal order, Schmitt bluntly concludes, is based on a sovereign decision and not on a legal norm (PT 10, 12–3).

Carl Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty (1922), trans. by G. Schwab, Chicago: University of Chicago Press, 2005.


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