In his Concept of the Political, C Schmitt wants us to draw a line between individuals or groups who are political merely by convention or law and those individuals or groups who are political because they are able to successfully create the friend-enemy distinction. Setting aside consideration of whether or not this definition is adequate, we can still look at C Schmitt’s review of the 18th and 19th centuries, when, according to Schmitt, the political became increasingly confused with and submerged under the social and the economic. Rather than defining or creating the friend-enemy distinction, the political found itself in a seemingly endless series of compromises, with individuals and groups who were, in effect, competing with the sovereign. Under the best of conditions, such competition is inconsequential, since the state is sufficiently strong and independent to withstand this low-level “civil war” without, in fact, jeopardizing its sovereignty. Yet, even under these best of conditions, Schmitt points out, the state survives because it is dependent not on political decisions, but on impersonal processes (economic, legal, even political) governed by their own internal logics.
It is then only under extreme circumstances—economic, political, social upheaval—that these impersonal processes display their political impotence. Under such circumstances, only the political can provide the definition and direction necessary to restore sovereignty/agency to the state and so avoid a complete collapse of the political. Moreover, under such circumstances, all pleas on behalf of due process actually serve to delay the restoration of state sovereignty and so further undermine the political.
Under these circumstances, the political is de facto the agent who steps in and restores sovereignty by identifying the enemies who are preventing or delaying this restoration.
What I would like students to notice in C Schmitt’s presentation is the long list of enemies that he accumulates along the way—political opponents—whose opposition is constituted by their opposition to “the political.” This includes, for example, those who mistake republican ideals or democratic process for “the political,” or those who wish to cover over the friend-enemy distinction by appealing to Jesus’ command to love your enemies, or those who wish to submerge the friend-enemy distinction in socio-economic, class distinctions. His opponents even include the pacifist who refuses to harm the enemy, but instead insists on turning the other cheek. Eventually, this pacifist will either be killed and removed from the political stage, or they will fight on behalf of their principle (and so deny it).
We might call this way of defining the political pragmatic, since it is based almost solely on practice: the individual or group able, practically, to define the friend-enemy distinction—that individual or group is the sovereign.
To this, let us call it the “Roman” legal foundation of sovereignty, we can contrast the ideal or principled legal foundation of sovereignty, grounded, however distantly, on the Lockean notion of popular sovereignty, which, substantively, is (or so Schmitt feels) vacuous, since it is based on process and not on de facto, pragmatic, successful seizure and maintenance of power.
One can well appreciate, I think, why such a pragmatic conception of the political might obtain when—as was arguably the case in Germany in 1932—a society is in a state of civil war.
Which brings me to my rather leading question. Since the 1970s in the US, and increasingly so since then, this “Roman” model of sovereignty has gained increasing currency within law schools and jurisdictions across the US. Cases are decided less and less on principle and process and more and more by reference to their individual, discrete pragmata.
Here there are a number of critical test cases that come to mind. In Gore v. the US, a Court that previously had sided almost exclusively on behalf of states rights, in this case decided that, for the welfare of the nation, it would not permit Florida’s recount to proceed, even in the face of substantial evidence that the count would fall in Plaintiff’s favor.
More ominously, when John Yoo famously advised President Bush that he was well within the law to permit the torture of prisoners, his advice was based on the legal principle that, absent a successful legal contest, which could be mounted solely through an independent counsel and ultimately impeachment, presidential acts were by definition legal, irrespective of their content. In other words, if the President can successfully establish the friend-enemy distinction, then his very success constitutes the legal precedent necessary to justify his action.
Does the fact that the rule of principle and precedent have given way to the political—does this fact provide sufficient grounds to argue that we are at civil war?