Critique of Sovereignty, Book 1: Contemporary Theories of Sovereignty

Book I: Contemporary Theories of Sovereignty Marc Lombardo

CRITIQUE OF SOVEREIGNTY

BOOK I: CONTEMPORARY THEORIES OF SOVEREIGNTY

CRITIQUE OF SOVEREIGNTY

BOOK I: CONTEMPORARY THEORIES OF SOVEREIGNTY

Marc Lombardo punctum books © brooklyn, ny

CRITIQUE OF SOVEREIGNTY / BOOK l: CONTEMPORARY THEORIES OF SOVEREIGNTY © Marc Lombardo, 2015.

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I read in Gouy’s Histoire de France: “The slightest insult to the King meant immediate death.” In the American Constitution: “The people are sovereign.” In Pouget's Pére Peinard: “Kings get fat off their sovereignty, while we are starving on ours.” Courbon’s Secret du Peuple tells me: “The people today means the mass of men to whom all respect is denied.” Here we have, in a few lines, the misadventures of the principle of sovereignty.

Kings designated as ‘subjects’ the objects of their arbitrary will. No doubt this was an attempt to wrap the radical inhumanity of its domination in a humanity of idyllic bonds. The respect due to the king’s person cannot in itself be criticized. It is odious only because it is based on the right to humiliate by subordination. Contempt rotted the thrones of kings. But what about the citizen’s sovereignty: the rights multiplied by bourgeois vanity and jealousy, sovereignty distributed like a dividend to each individual? What about the divine right of kings democratically shared out?

Today, France contains twenty-four million mini-kings, of which the greatest—the bosses—are great only in their ridiculousness. The sense of respect has become degraded to the point where humiliation is all that it demands. Democratized into public functions and roles, the monarchic principle floats with its belly up, like a dead fish: only its most repulsive aspect is visible. Its will to be absolutely and unreservedly superior has disappeared. Instead of basing our lives on our sovereignty, we try to base our sovereignty on other people’s lives. The manners of slaves.

Raoul Vaneigem, The Revolution of Everyday Life

TABLE OF CONTENTS ap

Introduction: Critique of Sovereignty Ili

Overview of Book I: Contemporary Theories of Sovereignty Ily

0: A Preliminary Demarcation of the Concept of Sovereignty //1

I.1: Jacques Maritain: There is no Sovereignty 19

1.2: Foucault and Derrida on the Circular Logic of Sovereignty 1117

I.3: Carl Schmitt: There is no Outside Sovereignty [135

1.4: Giorgio Agamben: Homo Sacer as Sovereignty’s Negative 1145

1.5: Hardt & Negri: Sovereignty without Territory /1 67

References // 89

Introduction To Critique Of Sovereignty

The present study is part of a wave of scholarship over the last two decades—across various disciplines in the humanities and social sciences (political theory, literature, anthropology, history, philosophy, law, etc.)—that has come to reinvestigate the concept of sovereignty. While many of the most influential sources for the current academic fascination with the subject were produced in drastically different eras and amidst drastically different political realities, nevertheless, the concept of sovereignty has proved an irresistible framework for interpreting the present world-historical moment. A host of the most important political events in the early 21 Century have proved surprisingly yet starkly reminiscent of the concept of sovereignty, particularly in the absolutist interpretations it was given by authors like Bodin, Hobbes, and most especially Carl Schmitt. In a sense, the twenty-first century began politically with the decision of Bush v. Gore in which the Supreme Court reminded us—which is also to say, performatively reinscribed as fact—that there is no constitutionally-protected right to vote in the United States. As we know only too well, this event set the stage for a series of political actions occurring over the past several years, too numerous to mention, that have appeared as directly conforming to the absolutist logic of sovereignty. To list only the most obvious examples of this trend consider: the ii | CONTEMPORARY THEORIES OF SOVEREIGNTY

Bush Administration’s dismissal of the constitutional balance of powers in favor of the “theory of the unitary executive,” the indefinite detention of “enemy combatants” at Guantanamo Bay in direct contravention to the centrality of due process throughout the history of the common law, and the seemingly illimitable powers of government surveillance over US citizens ushered in by the Patriot Act. While these events undoubtedly comprise the immediate political and historical context for the present study, we have no intention to offer an explicit interpretation of their significance.

Rather than tarrying directly with events themselves, instead we seek to offer a more fundamental investigation of the philosophical (i.e. metaphysical) framework implicated by those events. This is to say that the present study is neither explicitly empirical nor explicitly concerned with political reform. This is not to say that if the following ruminations should inspire empirical investigations or acts of political agitation in the future that we would be unhappy. To the contrary! Nevertheless, if the recent wave of scholarship concerning sovereignty has taught us anything, it is that our orientation toward events is itself often driven and motivated by an implicit understanding (in the sense of Heidegger’s Verstehen’) of a particular metaphysical horizon. This realization—that our relationship to events is itself of a decidedly metaphysical character—has been relentlessly demonstrated with respect to the sphere of politics by the thinker most responsible for the recent return to sovereignty in scholarship: Giorgio Agamben. It follows as a consequence of this realization (spurred by the work of Prof. Agamben) that an explicit interpretation of the metaphysical presuppositions which stand implicitly behind events will have all sorts of practical political implications of a nature which cannot be adequately anticipated in advance.

! For Heidegger’s famous reconsideration of Verstehen and hermeneutics generally, see the discussion of these issues in sections 31 and 32 of Martin Heidegger, Being and Time, trans. Joan Stambaugh (Albany: State University of New York Press, 1996).

INTRODUCTION TO CRITIQUE OF SOVEREIGNTY | iii

The present study seeks to contribute to this potentially political project by offering an account of the concept of sovereignty in the form in which it initially appears as being at its greatest distance from politics: reason’s negation of experience. The most immediate goal in this task is to provide a genealogy—i.e., rather than what is conventionally known as a history—of the perennially evolving relationship of sovereignty and thought. This is to say that our analysis will proceed achronologically, that it has no pretense of treating its subject exhaustively and, more fundamentally, that it consciously embraces the fact that the narrative that it projects upon the past is a shadow thrown by the present. As Nietzsche taught us, the analytic practice of genealogy has two fundamentally inseparable poles: the critical/deconstructive, which demonstrates the tendency to suppress the role played by the act of positing an “origin” as original, and the affirmative/reconstructive, which actively posits an origin as its own act of positing. In our critical reading of various conceptualizations of sovereignty given throughout various eras and epochs, the present study tends more toward the first pole. Nevertheless, there can be no denying (and indeed we do not wish to deny) that the manner in which we level our critique of past theoretical edifices will (and indeed should) attest to an edifice of its own.

According to these fundamental assumptions of our inquiry, we shall begin by sketching a number of the comparatively recent theoretical treatments of sovereignty which have had the most influence upon our own conception of the issue. Our most fundamental concern is not that of doing justice to the complexity of the authors’ views (though this is not to say that we intend to be unjust!) but rather to disclose the relationship between those views and the concept of sovereignty as we see it. Following this discussion and the more explicit characterization of sovereignty as a mode of thought which it should allow, we shall proceed to offer an outline of the role played by this mode of thought at particular points in the history of philosophy/metaphysics. This outline—painted in only the broadest of strokes—will tend toward the geistgeschichtlich approach utilized by John Dewey in his seminal works Reconstruction in iv | CONTEMPORARY THEORIES OF SOVEREIGNTY

Philosophy and The Quest for Certainty. This narrative of the role of sovereignty in Western metaphysics outlined in Books I and II will enable us to interrogate two fundamental works of political philosophy (Aristotle’s Politics and Rousseau’s Social Contract) over the course of Books III and IV in order to show both their place within that narrative and the possibilities that they introduce for breaking with that narrative. Book IV concludes with a discussion of some of the existential implications suggested by this conceptualization of the philosophical nature of the problem.

OVERVIEW OF BOOK I

The first volume of the Critique begins with a preliminary investigation of the metaphysics underlying the concept of sovereignty throughout many of its usages in the history of modern thought. There is a curious similarity between the concept of sovereignty as defined by 20th-century political scientists and the definition of sovereignty offered by Jean Bodin already in the 16th century. It is as if, despite 400 years of history, little has changed with respect to sovereignty’s conceptualization. Throughout its modern history, the concept of sovereignty is closely associated with vagueness. It follows: the more thorough the description of any given empirical case, the more sovereignty falls away.

After this preliminary treatment of the concept of sovereignty, the discussion proceeds to examine the varied interpretations of sovereignty given by seven of the most influential Continental political philosophers of the 20th and early 21st centuries: Maritain, Foucault, Derrida, Schmitt, Agamben, Hardt, and Negri.

Maritain argues that there is no such thing as sovereignty here on Earth. However, reasserting the sovereignty of God is the condition that allows Maritain to make this claim. Thus, in attempting to negate sovereignty Maritain actually brings the vi | CONTEMPORARY THEORIES OF SOVEREIGNTY concept of sovereignty back to its modern origins as found in Bodin.

Derrida and Foucault, as different as their scholarly temperaments, methods, and results may be concerning other subjects, both associated sovereignty with circularity (e.g., in logic, with respect to power returning to its source, etc.). The scholarship of Derrida and Foucault makes it possible to see the intimate connections between the circularity of sovereignty as conceived in modern political and legal traditions and the circularity already evident in Aristotle’s conception of logos. In its inherent circularity and vagueness, sovereignty, just like the number 0, knows no negation.

This observation leads to a discussion of sovereignty in the work of Carl Schmitt, who utilized the concept as a blunt instrument in his attempt to annihilate both the tradition of political philosophy and the practice of democratic politics. “Rather than grounding the concept of sovereignty in the exercise of politics instead Schmitt sought to ground the concept of the political in the exercise of sovereignty.” In his attempt to purify the sovereign decision of all traces of deliberation, Schmitt unwittingly paved the way for a philosophy of peace that follows from absolute deliberative doubt (this observation is developed further in the discussion of the epistemological subject found in Book II of the present work).

Next, the argument turns to examine the limits pertaining to the juridical entity that Giorgio Agamben has defined as sovereignty’s negation: homo sacer. Just as in the case of sovereignty, the closer we look, the more we see that the condition of homo sacer (i.e., he who anyone can kill but no one can sacrifice) fits the description of no actual empirical case whatsoever. The question then raised is: where does the concept of homo sacer stand vis-a-vis the scientific method? In the process of this discussion, the meaning of the null-hypothesis is elaborated and refined.

The final chapter of Book I takes up the political philosophy of Michael Hardt and Toni Negri. The work of Hardt and Negri makes it all too clear that the association of sovereignty with a given territory of land is an anachronism. This discus-

OVERVIEW OF BOOK I | vii sion in turn provides the basis for sketching a rough outline of a process of deliberative global governance in which any and all bodies claiming to represent the interests of peoples (e.g., NGOs, labor unions, nation-states, etc.) must continually demonstrate their legitimacy in serving the interests in question. This framework would work only insofar as the question of legitimacy was perpetually contested, perpetually in doubt. Finally, this perpetual process of doubt is given the name Critique.

0: A PRELIMINARY DEMARCATION OF THE CONCEPT OF SOVEREIGNTY ap

Sovereignty is an exceptional concept whose tentacles spread far beyond the doctrines of constitutional and international law to which it most commonly refers. Given the perpetual failure to resolve the fundamental deadlocks of national and international law (e.g., the rights of a territory’s authoritative regime vs. the “human rights” of that territory's population, the authority rendered to a population’s chosen representatives vs. the authority of the population itself, etc.), a skepticism regarding these frameworks seems appropriate. In our efforts to repair the world—especially in the face of the increasing occurrence of “natural” ecological disasters suffered primarily by the least of these amongst us—we cannot reasonably expect to find new answers by asking the same questions in the same way. For its centrality to persistently problematic politicojuridical questions, sovereignty and the metaphysical presuppositions that it entails need to be critically reexamined.

While our concern with sovereignty most certainly stems from the political consequences manifested by that concept, it is not clear that in its most basic sense sovereignty has anything whatsoever to do with politics. Even if we find it to be the case that sovereignty is political all the way down, nevertheless, its political nature may appear to us in an entirely different manner when viewed in relationship to its metaphysics. And so it is that without in some way elaborating the metaphysical presuppositions attendant upon the concept, we will continue to be utterly lost in our attempts to understand the legal, political, and ethical deployments of sovereignty. In other words, it is precisely because our initial concern is with the possibilities and impossibilities of the contemporary political horizon that our analysis must in some sense turn a-way from politics.

That the dominant notion of sovereignty as it stands in today’s juridical and political discussions is inherently metaphysical in nature may be gleaned by the surprisingly close resemblance between contemporary iterations of that concept and its historical deployment within the edifice of political philosophy. Most contemporary treatments of sovereignty have not changed significantly from the essential characterization of the concept articulated by the first modern political philosopher to deal with it explicitly, Jean Bodin. Sovereignty is today conventionally rendered most simply as “the supreme authority within a territory.”! Already in 1576, Bodin offered the following

! This definition was offered in Daniel Philpott, Revolutions in Sovereignty: How Ideas Shaped Modern International Relations (Princeton: Princeton University Press, 2001), 16. Most other contemporary definitions of sovereignty differ with Philpott’s more in terms of verbosity than effect. For example: “A sovereign state is a territorial jurisdiction: i.e., the territorial limits within which state authority may be exercised on an exclusive basis. Sovereignty, strictly speaking, is a legal institution that authenticates a political order based on independent states whose governments are the principal authorities both domestically and internationally.” Robert Jackson, “Sovereignty in World Politics: A Glance at the Conceptual and Historical Landscape,” in Sovereignty at the Millenium, ed. Robert Jackson (New York: Blackwell, 2000), 10 [9-34]. I do not mean to suggest that such usages exhaust the contemporary debate concerning the meaning of sovereignty, but only that the traditional definition is alive and well within that debate. For a somewhat alternate view, see for instance that of Wallerstein, who writes: “Sovereignty is more than anything else a matter of legitimacy. And in the modern world-system, the legitimacy of sovereignty requires reciprocal recognition. Sovereignty is a hypothetical trade, in

0: A PRELIMINARY DEMARCATION | 3 surprisingly similar definition: “Sovereignty is the absolute and perpetual power of a commonwealth, which the Latins call maiestas; the Greeks akra exousia, kurion arche, and kurion politeuma; and the Italians segnioria, a word they use for private persons as well as for those who have full control of the state, while the Hebrews call it tomech shévet—that is, the highest power of command.” In its substitution of the word “territory” for “commonwealth,” the contemporary definition can perhaps be regarded as being more general in scope concerning the nature of the sovereign body but the difference that this would have with respect to the description of actual regimes is unclear. Bodin was already using the word “commonwealth” (in the original, république) in a highly generic sense to refer to regimes of all different sorts.’ The only other possible discrepwhich two potentially (or really) conflicting sides, respecting de facto realities of power, exchange such recognitions as their least costly strategy.” Immanuel Maurice Wallerstein, World-Systems Analysis: An Introduction (Durham: Duke University Press, 2004).

> Interestingly, in revising the text for the Latin edition which was published 12 years after the original, Bodin substantially altered the first sentence of this passage to read: “sovereignty is supreme and absolute power over citizens and subjects [Maiestas est summa in cives ac subditas legibusque solute potestas].” Jean Bodin, On Sovereignty: Four Chapters from the Six Books of the Commonwealth, ed. Julian H. Franklin, trans. Julian H. Franklin, Cambridge Texts in the History of Political Thought (Cambridge: Cambridge University Press, 1992), 1. >In fact, the normative tendency of Bodin’s notion of a république was diametrically opposed to the classical deployment of that concept (which referred to a regime of popular sovereignty) in that the sovereign power in a commonwealth was for Bodin most appropriately held only by a single individual. Though this is not the way that the narrative of modern political philosophy is customarily treated, in fact, Bodin’s move towards an understanding of sovereignty as consolidated in the person of the King can be regarded as the first strike of modernity against the classical tradition of political thought. Though often times we think of the supremacy of the King’s power as characteristic of the politics of the Middle Ages, this was certainly not how political power was regarded during those times. “So universally prevalent was the idea of original popular sovereignty that ‘from the end of the 13th century it was an axiom of political theory that the ancy between the contemporary notion of sovereignty (as given voice by Philpott) and Bodin’s treatment of the concept is that the former speaks of a “supreme authority” whereas the latter speaks of an “absolute power.” These phrases certainly do have different connotations and therefore different practical implications as well. Nevertheless, what the phrases share is likely of greater importance: namely, whether one speaks of a “supreme authority” or an “absolute power,” in either case, the concept is of a nature decidedly more metaphysical than real as neither can possibly be taken as a valid description of any actual entity whatsoever.

The inherent referential nullity of the concept of sovereignty in its full and proper sense was recognized already by Bodin, though somewhat reluctantly. In his treatment of the matter, sovereignty is sketched as the negation of a series of nine conditions of subjectivation, each more difficult to transcend than the last. Cumulatively, this has the effect of making it appear that the conditions necessary for sovereignty are never quite satisfied; that somehow more work always need be done. As opposed to all subjects and even all citizens—nota bene: unlike Aristotle, Bodin does not extend the right of political participation to the latter—the sovereign Prince is said to be “held accountable to God alone”* and need only “pledge allegiance to God alone.” As we can see, after having gone to such great lengths to insist that sovereignty refers only to a truly absolute power that knows no limits, Bodin immediately steps back from this position. The exception presented in the claim that justification of all government lay in the voluntary submission of the community ruled.’ Government based on the consent of the governed was the ruling theory in the Middle Ages”: C.E. Merriam Jr., History of the Theory of Sovereignty since Rousseau (New York: Columbia University Press, 1900), 12. Merriam is citing the original German edition of Otto Friedrich von Gierke, Natural Law and the Theory of Society: 1500 to 1800, trans. Ernest Barker (Boston: Beacon Press, 1960).

* Jean Bodin, Les Six Livres De La République (Paris: I. du Puys, 1583), 125. All citations from this edition are my translation.

0: A PRELIMINARY DEMARCATION | 5 the sovereign Prince need obey no authority save that of God was offered quite literally and positively by Bodin: i.e., the earthly Prince unquestionably must obey God. “If we were to say that those who possess absolute power are subject to no law, then nowhere may a Prince be found in the sovereign world, seeing that all the Princes of the Earth are subject to the laws of God and of nature and to the numerous humane laws common to all peoples.” To this the further clarification is added: “And by the absolute power of sovereign Princes and magistrates, in no way does this intend [to include] the laws of God and nature.”’

Thus, when we say that sovereignty is rendered referentially null by being defined as an “absolute power” or a “supreme authority,” we mean to suggest precisely the contradictory movement implicated by Bodin here. On the one hand, the most essential purpose of sovereignty as a concept is its use in distinguishing a given entity (more conjectural than real) from all other entities which are subject to specific limitations concerning their functional abilities. On the other hand, however, the concept of sovereignty can only be used to describe entities observable in the real, physical world by including descriptions of the specific limitations concerning the functional abilities of such entities. The most generally apt definition of sovereignty is that it is a function of the essential antagonism between these two loci: the greater detail with which a “sovereign” entity is described, the less sovereign it becomes. Correspondingly, the degree to which a given entity appears sovereign is the degree to which it is vague. It follows from this definition that only that which can never be clearly described is truly sovereign. God perhaps.

While this interpretation of sovereignty as a function of the concrete limitations of observation may seem somewhat novel, it shares much with Bodin’s interpretation of the concept and many of those which have come later. As was illustrated above, despite his own attempts to delimit the concept such that it could be used to refer to the appearance of a worldly Prince, the force of Bodin’s own analysis simultaneously discloses sovereignty as (at least for mortals) a fundamentally unreachable point—a limit. Perhaps more than anything else, it was Bodin’s prescient application of the calculus to the sphere of politics that most definitively marked the enduring significance of his notion of sovereignty for the modern epoch. In fact, the limit concept is utilized in one manner or another by all of the influential contemporary interpretations of sovereignty that we will discuss below, those of: Maritain, Schmitt, Agamben, Hardt and Negri, and Foucault and Derrida. If only for his role in disclosing this analytic framework for characterizing sovereignty, Bodin continues to be of enduring significance. Another lesson that we can still learn from Bodin is that the simple recognition of sovereignty’s dependence upon the limit concept does not by itself do away with its being pursued as a principle of political practice. Bodin knew very well that to call a given Prince sovereign was always a statement of approximation. Nevertheless, he argued quite confidently that politics should be both understood and practiced exclusively by the means of such approximations. In fact, in a perverse way, regarding sovereignty as a point that may never actually be reached actually encourages its being pursued with the greatest of vigor.’ Thus, merely pointing out that it will never be | reached by itself does little or nothing to de-animate the drive towards sovereignty. A much more fundamental critique would instead demonstrate that there’s no there there—that when properly understood, sovereignty can legitimately offer neither a trajectory of political pursuit nor a point of orientation for the understanding. When we claim that sovereignty is referentially null, we mean this to indicate not simply that it may be approached but never reached but more fundamentally that no such trajectories whatsoever obtain for experience.

® Telling the obsessive that he will never attain the object of his obsession is the most inadequate of balms. The obsessive knows very well that he’s never going to get the object—why else would he be pursuing it?

0: A PRELIMINARY DEMARCATION

However, it has to be pointed out that saying that sovereignty refers to nothing is not strictly the same thing as saying that it is meaningless.’ In fact, it is to say that statements made about sovereign entities cannot be empirically verified— anymore than an empirical investigation can correct the notion that unicorns have three legs. As this example points out, referentially null concepts may still be useful (particularly as possible limit cases) even if they cannot be observed. Nevertheless, the usefulness of referentially null statements depends first upon accurately and adequately recognizing their limitations. In other words, by properly understanding the meaning of sovereignty we know that it will never be found among the things of the Earth. Similarly, we also know that if and when we do encounter a case that appears to satisfy the conditions for sovereignty, such a finding means simply that we haven't been looking closely enough and that the case requires greater

° In Fregean terms, we may very simply say that sovereignty has “sense” (Sinn) but not “reference” (Bedeutung). See Gottlob Frege, “On Sinn and Bedeutung,” in The Frege Reader, ed. Michael Beaney (Oxford: Blackwell Publishers, 1997), 151-171.

10 This is an inexact metaphor as even though both sovereign entities and unicorns are existentially null sets, nevertheless, there is a profound difference between their respective concepts. A unicorn is a clear concept—at least to the extent that any concept may be clear—in that it can be described with reference to elements of other entities which may be directly observed. This relative clarity is apparent in the fact that even though a unicorn has never been found, if an entity that otherwise resembled a horse which also possessed a horn was discovered (or engineered) there would be universal agreement that such an entity was indeed a unicorn. By contrast, as a concept, sovereignty is vague and necessarily so in the sense that the quality of “supreme authority” or “absolute power” may not be directly observed with reference to any other existing entities. Perhaps a more rigorous investigation would disclose this distinction as being one of degree rather than kind. In that case, the distinction would rest in the fact that the number of distinct existing entities whose properties must be cobbled together in order to clarify “sovereignty” is indefinably large, whereas unicorn can be clarified by borrowing properties from two such entities (e.g., a horse and a rhinoceros).

investigation. In its inherent impossibility and unrealizability, sovereignty is a useful concept for the description of political reality insofar as it is taken as an index of how little we understand of the phenomenon in question. Properly considered, to say that something is sovereign is not to say that it is subject to no conditions other than its own will; rather, it is to say that we know far too little concerning the actual conditions that made the will possible and the actual limitations upon its exercise. Sovereign is that which escapes observation.

1: JACQUES MARITAIN THERE IS NO SOVEREIGNTY ae

The first view that we would like to introduce among the theories of sovereignty of contemporary relevance is that of Jacques Maritain. Like other thinkers of influence upon our thinking about sovereignty today, Maritain himself was something of a relic from a bygone era. Despite or precisely because of his being out of step with his own time, Maritain’s perspective upon the question of sovereignty continues to be of enduring significance.

Whether we like it or not, the word “sovereignty” remains animated by meanings which are in no facile way reducible to its most common political definition as the supreme authority within a territory. For this reason, many political scientists of the post-war era have questioned the concept’s utility.' Jacques

' The inherent ambiguity of sovereignty present in even technical discussions was drawn attention to by Stanley Benn in the 1950s. See S.I. Benn, “The Uses of Sovereignty,” Political Studies 3.2 (1955): 109- 122. Over the course of the 20th century, these concerns regarding sovereignty’s ambiguity became coupled with the perception of its increasing irrelevance in the face of challenges posed to the nation-state by international political institutions and the globalizing trends of capital. A host of writers of this persuasion came to speak of sovereignty’s “end,” “erosion,” or “extinction.” See Joseph A. Camilleri and