Emergency and Exception (Kennedy)

Emergency and Exception
Emergency Politics: Paradox, Law, Democracy by Bonnie Honig; States of Emergency in

Liberal Democracies by Nomi Claire Lazar; Insurgencies: Constituent Power and the Modern
State by Antonio Negri; The End of Reciprocity: Terror, Torture and the Rule of Law by
Mark Osiel
Review by: Ellen Kennedy
Political Theory, Vol. 39, No. 4 (August 2011), pp. 535-550
Published by: Sage Publications, Inc.
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Review
Essay
PoliticalTheory
39(4) 535-550
201 I SAGE Publications
Reprintsand permission: http://www.
and
Emergency
Exception
sagepub.com/journalsPermissions.nav
http://ptx.sagepub.com
(DSAGE
Politics: Paradox,
Emergency
by Bonnie
Law, Democracy,
Princeton:
Honig.
Princeton University Press, 2009. 197 pp. $26.95 (hardcover).

States of Emergencyin Liberal Democracies, by Nomi Claire Lazar. Cambridge:
Cambridge University Press, 2009. 197 pp. $80.00 (hardcover).
Insurgencies:
Constituent
Power
and
the Modern
by Antonio
State,
Minneapolis: University of Minnesota Press, 1991.367

(paperback).
Negri.
pp. $30.00
The End of Reciprocity:Terror,Torture

and the Rule of Law, by Mark Osiel.
Cambridge: Cambridge University Press, 2009.667 pp. $45.00 (paperback).
Reviewed
DOI:
by: Ellen Kennedy,
10.1 177/009059171
The
last
decade
has
University of Pennsylvania.
1406410
a proliferation
seen
of books
and
articles
on emergency
and exception. Most reacted to the terrorist attacks of 9/11, and to the
"Patriot Act" of 2001, legislation that broadly enlarged surveillance by the
Federal
government,
terrorists
by foreign
and
dures,
through
expanded
created
and
intended
powers
over
emotional
and
to foil money-laundering
revised
partners,
powers
police
in the
Congress
new
their domestic
immigration
The
immigrants.1
wake
political
bill
was
of the
proce
hurried
attacks
and
quickly signed into law by President George W. Bush. Academic legal opin
ion
now
of other
commonly
attacks
those
regards
as having
created
expanded
a domestic
powers
and
and
the real
international
possibility
state
of emer
gency.2 All save one of the books reviewed here appeared after 2001, and
their authors in differentways each refer to the circumstances of an abnormal
politics, or "emergency politics."
Political theorists who have taken up this question have often defined it
in the language of Carl Schmitt's Political Theology (1922). Much has been
made of its theological dimension, most of it erroneously conflating emer
gency
and
exception.
Absent
firsthand
arguments in Die Diktatur (1921)

concepts,
sovereignty
and
knowledge
of context
and
associated
and Constitutional Theory (1928),
dictatorship,
crucial
to understanding

two
the normal
PoliticalTheory 39(4)
536
and
the
have
exceptional
between
and
commissarial
democratic
states
been
sovereign
that "the
means
cannot
be
aside
set
established
but
distinction
liberal
the funda
sense,
form of existence, obviously

the
certainly
can
execution
The
it concerns
in the actual
constitution
temporarily,
for their
as
dictatorship
over a people's
mental political decisions

norms
confused.
perniciously
constitutional
general
it is in the inter
when
be precisely
est of the preservation of these political decisions."3 Norms typical of bour

geois freedom (we would call these civil rights) can be suspended because
they do not constitute a people politically.4
Political
tive
on
the
Theology
is a destructive
state
its law
and
It opens
text.
the most
a sociology
through
radical
of concepts
perspec
the
beyond
"immediate practical interests"5 of state law in 1922. Legal positivists, led

by Gerhard Anschiitz, sought refuge from the political consequences of the
German revolution by emphasizing the duality of "state" and "law." The
constitution
Weimar
Taken
out
and
of
anything
reference:
has
"the
but also
its
been
on
to which
the people
Insurgencies
as
radicalness."6
Arendt
Negri
and
Schmitt
and
the
finds
on these
things
the
agent
can
the
proximate
must
refer
after
momentthe
constituted
began
as
act
but
except
almost
captures so brilliantly in
Negri
constitutive
mean
its most
legitimacy
from
sentence,
opening
of a revolutionary
Schmitt
distant
the
of exception,"
many
distinct
Democracy,
power
on
authority
prominent
constitutional
Antonio
constituent
of Parliamentary
democratic
state
as sovereign
momentwhich
of
most
context,
the
to mean
read
people"
the
the
remains.
postrevolutionary
decides
exceptional
Crisis
said
changed,
but the law
is he who
"Sovereign
1919,
have
may
constitution,
strong
In
power.
The
to develop
a conception
"unexhausted
expressive
affinity
between
Hannah
matters.
The confusion of emergency and exception in current political theory

comes in good part from Political Theology because emphasis on the theo
logical obscures revolution and democracy as sources for a critical legal
theory. The original title, "Sociology of the concept of sovereignty and

political theology," clearly defines its place within Max Weber's orbit.7 Two
other texts of the same period, Roman Catholicism and Political Form and
The Crisis of Parliamentary Democracy, take up aspects of representation
and
presence,
and
later
sovereignty.
the
and
each
offers
Constitutional
In constituted
a road
Theory,
states,
into
the sociology
address
dictatorship
the
same
of the state.8
problem:
is a means
These,
democratic
of their
preserva
tion, a technique. As an unconstituted moment of political vitality, sover

eignty manifests itself as a decision for unity, as sovereign dictatorship.
Historically
these
dictatorships,
commissarial
and
sovereign,
have
no neces
sary political-legal form, but can and have been republican, princely, and

537
Kennedy
The
popular.
constitutional
world
announced
the American
by
and
French
revolutions, those of 1848 and of 1917-1918 and all the peoples democracies
cannot
since,
the epochal
escape
to transform
challenge
the people,
however
fleetingly, as sovereign.
Max
Weber
understood
certainly
that
as the
central
of the new
problem
European constitutions, especially the Weimar constitution that he helped

draft.
Article
48
was
the product
of Weber's
hand.
Informed
by expectation
that the party system would be fatally weak, it drew on Weber's typology of
rational, traditional, and charismatic legitimacy. The Reichpresident, as the
only directly elected national office, would exercise authoritybased "unques

tionably on the will of the whole people."9 Political Theology and the other
texts between 1921 and 1923 illustrate Schmitt's "proximity to Weber and
[are] a recognition of the sociological-religious
discussion
aspects necessary to any
of sovereignty."10
The concept of exception (Ausnahme) belongs to the circumstances of a

specific modern state (the Weimar Republic) whose constitutional-legal cri
sis was objective (a defeated state, torn by civil war, economically unstable
and in part occupied) and subjective (conflicted legitimacy). Political
Theology asserts the unpredictable, the exceptional to break the formulaic:
"If [exceptions] cannot be explained, then the universal cannot be explained
This
either."
works
text
mischievous
effect
on
so
many,
enamored
of
exception they lose sight of its object: constitution of the political into regu
larity. Without the larger element and substantial concerns as developed in
work
Schmitt's
after
1922,
Political
the immaterial
accents
Theology
ironi
cally. It was written against such political romanticism and the project is
completed by the pairing of "political" and "constitutional" in The Concept
of the Political and Constitutional Theory. Without those, Political Theology
and
the
for the unreal,
In States
ognizes
when
become
"exceptional"
aesthetic,
of Emergency
the practical
she
focuses
an
incongruously
irony,
seedbed
for
the
the unpolitical.
in Liberal
consequences
on the theory
Democracies,
of collapsing
and
practice
Nomi
Claire
into
emergency
of emergency
powers
Lazar
rec
exception
in modern
rule-of-law states. She avoids the polemical and dramatic aspects so familiar
now in writing about "exceptionality," a style inherited from Schmitt's own
tendency to "flirtwith danger" as Reinhard Mehring puts it.11She makes less
than she might have of a distinction between the political and legal parts of
this constitution elaborated by Schmitt in Constitutional Theory, but then
Lazar is not writing about Schmitt.12 She has not only the emergency of 9/11
in mind but the wider practices of emergency government. By that simple
perspective,
she
averts
fallacious
suggestions
that the American
unique.

dilemma
is
538
Lazar
also
the theoretical
enlarges
of emergency
compass
when
she
iden
tifies it as "a concrete manifestation of the tensions between order and jus
between
tice,
enablement
and
constraint
of power,
tensions
that are
inherent
in any constitutional regime."13 She rightly criticizes the norm/exception

framework as simplifying and static. A long list of theorists are "schmittian
despite themselves" because, while critical of Schmitt, they repeat the mis
take of collapsing emergency into exception and the suspension of rules and
norms. Her primary aim is to escape from that framework in its "left and
right permutations."14
Rather
than
a norm/exception
Lazar
dichotomy,
a continuum
sees
in the
rule of law during an emergency and in a normally functioning state, "a shift
not
a sea
refusing
as
change"
them
the
she
status
it. The
puts
is to normalize
goal
of "exceptional"
events.
emergencies
are
There
several
by
advan
tages to this approach. It demystifies a discussion that (largely due to

Agamben's influence15 and the fashion for Schmitt among literary critics)
has become excessively detached from its institutional and practical con
cerns with prerogative and from the revolutionary potential of the people. It
also detaches the state of emergency from its practice in a specific historical
moment, the Weimar Republic. After all, there have been states of emer
that
gency
successful
do
Lazar's
mon
usher
theorists
argument.
are
whether
well-being
own
and
causes
it is our
or
own
even,
most
of
all
we
something
our
com
measure,
on a normative
depends
our cultural
that were
or political.16
as a legal
because
of life,
way
perhaps
of emergency
natural
dictatorship,
declared
always
states
whether
of emergency
of commissarial
Emergencies
threatened,
in dictatorships
their
for the essence
argument
among
nomic
not
in dispersing
value
mortal
is
our eco
practices,
existence.
Of
course what is valued might, hypothetically, be evil; but in a rule-of-law

state, in a constitutional liberal democracy, what we value will necessarily
be something for the common good. In fact, the common good of a life
so
together
emergency.
constituted
In that state
will
be
the
most
of emergency,
and
pressing
the rules
and
urgent
norm
do
reason
for an
not disappear,
although they may be changed somewhatsuspended, limitedbut this

change will be temporary and for the sake of something containing all those
values from which this way of life has come. To liberals who say that emer
gencies are bad because they undermine civil liberties and human rights,
there
is an obvious
undermine
those,
the purpose
response:
but to secure
them
more
of emergency
completely
declarations
by restoring
is not to
the order
in which they are embedded. Lazar's discussion of derogations is excellent

on this aspect of the emergency dilemma. It is a paradox, but one that can be
solved
if we
accept
that we
have
"a
second-order
state's capacity to fulfill its function."17
obligation
to preserve

the
539
Kennedy
The weakness in her argument is the apparently tidy division of "first and
second
order"
values
mentioned
which
above,
becomes
a typology
of repub
lican and decisionist exceptionalism. Hobbes and Schmitt illustrate the latter,
Machiavelli and Rousseau the former. The relatively harmless descriptions
of Realpolitik
in Machiavelli
the Social
through
are not the real
they
or Rousseau's
Contract
conceal
here.
subject
The
the citizen
"forcing
the force
within
constituting
instead
purpose
to be
free"
but
power,
is to demonstrate
how
quotidian political ethics functions within the political order whereas exis
tentialist ethics invoke "different and possibly higher order criteria to create
or preserve
that order."18
Republican exceptionalists differfrom decisionist exceptionalists because

men of great public virtue found republics with "a transformative ethical
force."19
to "the
Resort
of violence"
economy
here
is to "save
the republic,"
not (as she notes was the case for the Bush administration) "to obliterate the
existential
the
threat."20
state.
the final
having
Decisionists
as
exception
Lazar
say.
even
The
everyday
this
explains
grammatical.
no
acknowledge
excludes
Exceptionalism
Good"
It is a position
difference
between
of exception
state
"Great
ethics.
served
of
and
emergency
is "the
by
whereas
subject"
"the state of emergency" is the predicate. This formal distinction detracts

from her otherwise astute understanding of emergencies. Despite reference
to the German
tion),
she
the
ignores
Not
terms
legal
larger
and
(emergency)
set
of related
Ausnahmezustand
(excep
in continental
concepts
law.
An
account of why Europe needed so many varieties of emergency law might

increase the sophistication of American discussions.
This book intends a defense of liberal democratic states against contempt
for the capacity of open societies, with diffuse power structures, lacking a
strong normative basis to defend their way of life when confronted by "fun
damental
tives
enemies."
and
hold
first-order
values
whatever
rule
emergency
saw
that
content,
of law
of
and
liberal
must
is
be
not
liberal
but many
thus,
values
The
values
because
Lazar
commit
defended
only
all
reserves
a first-order
Just having
enough.
she
values,
conserva
When
democracy.
secondary
to liberalism.
exclusively
its
in 1932
Weimar
view
first-order
between
distinguishes
ment,
Schmitt
radicals
they
through
incorporate
the "Great Good" for which state is authorized to act. The normative and
conceptual framework she would put in place of Schmitt's norm/exception
dichotomy
succeeds
the moral
character
through
of the
tacit
end
redefinition:
they
serve."21
"Emergency
Despite
that,
powers
for those
take
on
with
general interest in the history of ideas about emergency, dictatorship and the
debate since 9/11 much in this book repays study.
Lazar
make
notes
little
sense
in States
without
of Emergency
states"
and
in Liberal
that "the
Democracies
scope
of liberal
that
values

"rights
is not
540
coextensive
norms
with
requires
ethics
political
order.
in general."
Liberals
make
deep
The
realization
moral
claims
of any
about
ethical
the
good
served by and through liberty. The distinction between liberty and license
that the latter
recognizes
can
be as great
a threat
to liberty
understood
rightly
as a great tyranny. Chief among the goods of liberal government is commit

ment
to "human
as
dignity"
articulated
in the
German
Basic
Law
of
1949
and declared to be "inviolable." Reaction to the war and genocides of 1939

1945 and to totalitarian dictatorship, effected specification of "crimes against
in the law
humanity"
of nations
and
efforts
to constrain
war
law
through
to put the evil genie back into his box in this age of technological
warfareare
impersonal
related
directly
to the substance
and
of emergency
and
exception.
Mark Osiel's The End of Reciprocity is about the politics of humanitarian

and
law,
the moral
conveys
and
intellectual
confusion
by America's
produced
policies in the Middle East, specifically the tormented public debate on tor
ture.
Constitutional
such
questions
as
those
above
are
never
for
explicitly
mulated in The End of Reciprocity, but Osiel nevertheless provides many

real
references
transient
The
and
End
a lengthy
Rawls
they
Kant,
have
the potential
of torture
type
liberal
democracy,
merely
as
in circumstances
to change
our
of political
in terrorist
account
as
of "jihaidist"
theory
The
Honig.
and
Claire
containing
of
on
the
other
refer
is not
a par
many
Lazar
not
perspective
Dworkin
or America
writes
sovereign
are
system.
here
subject
Osiel
terror against
the
on
response,
texts.
emergency,
These
despite
from
of Waldron
it is for Nomi
it is for Bonnie
state.
constitutional
war"
as reciprocal
of
politics
security
well-known
of constitution,
the
ponder
post-9/11
is not a book
a twice-removed
and
ticular
we
the
of "fairness
morality
to great
when
and
power
of Reciprocity
and
legality
war
consider
discussion
and
ences
to
executive
expanded
as
about
the
law
of
states,
and
argues
against the capacity of legality and liberalism to comprehend, much less

master, the challenges facing the United States today. His judgment (ren
dered in 600+ pages of which nearly half are endnotes) is that law as process
can
neither
stances.
formulate
Law
as rules
nor
responses
and
procedures
the
conceptualize
will
be doubly
facts
of our
circum
States
inadequate.
con
stituted in terms of rules and procedures will be outfoxed by innovative

informal organizations committed to their destruction, or at a minimum their
disruption.
responses.
must
Moreover,
The
be sought
in older
grounds
beyond
commitments,
legal
norms
of good,
the confines
crucially
fail
or even
to
merely
of modern
the
"martial
generate
morally
right conduct,
democratic
honor"
that
acceptable
Osiel
rule-of-law
effects
"a
argues,
states
sort
of
'internal morality.'" The military code internalizesthrough discipline and

541
Kennedy
I might
training,
"the
ambitious
for doing
not
add,
desire
so."22
The
intellectual
primarily
to live
up to one's
and
to be publicly
of the American
response
professional
or discussion
persuasion
code
recognized
to the
military
scandal of Abu Ghraib, Osiel notes, rightly and effectively constrains the use
of tortureto obtain intelligence when the reciprocity rule would indicate like
for like. It is odd that the author seems oblivious to the political sociology of
military institutions, and to the fact that America's tradition of military sub
ordination to civil power is the exception rather than the rule. Osiel's opti
mism about the role of high-ranking officers after Abu Ghraib, the ongoing
discussion within the service academies regarding treatmentof prisoners, the
revision of the field manual, and the wary attitude of field commanders may
be vindicated by events. His emphasis on individual character as the last,
best
defense
of civilized
in wartime,
norms
able
to remedy
vacuous
rules
and
procedures with living courage and decency, is a welcome addition to the

variables of war studies.
Two
other
attention.
deserve
aspects
that
agreements
humanitarian
codify
First:
covenants
international
in wartime
precepts
are
and
to
intended
minimize suffering in war, and specifically to protect as far as possible civil

ians
on
who
might
terror"
and
Second:
be
swept
up
the means
law
humanitarian
in war.
The
acts
"rests
on
that provoked
fall
of its prosecution
certain
outside
legal
not
assumptions
"war
America's
those
bounds.
immediately
applicable to America's conflict with al Qaeda and kindred groups."23 Osiel

writes as if irregular war were something new and as if jihadist terror is
unique. Partisans formed the Spanish resistance to Napoleon (1808).
Partisans bedeviled the French when they invaded Austria and Prussia
(1809) and were active at the same time in the Tyrol (1809). The early
sider
that war
warfare
might
are closely
"outside
essence.24
of irregular
experience
nineteenth-century
be
"politics
linked
to civil
war
means."
The
war
colonial
wars.
and
to con
Clausewitz
inspired
by other
of partisan
methods
The
partisan
stands
the boundary" and his existence beyond every bound is his

Is it so difficult
to see
this opponent
in reaction
to American
inva
sion of Iraq? Is the pattern of such combat not evident in the locally specific
but globally described violence post-9/11? Osiel misses this dimension
entirely.
He
also
seems
to ignore
the consequences
of combat
between
par
tisans and state armies for the paradigm of international law.

Much attention is given to what rational choice and international relations
have to say about the titular subject of this book, "reciprocity." Surprisingly,
this concept leads to another, quite different corpus of thought about war,
also concerned with reciprocity. Reciprocity can mean "the Golden Rule," it
can
mean
equally
applied
rules
and
it can
mean
the
balance

of costs
and
542
benefits.
cannot
When
the enemy
afford
who
have
intense
is a jihadist
Those
reciprocity.
of
knowledge
searches
across
terror
suspected
such
have
plans,
national
Osiel
organization,
of planning
commonly
and
borders,
been
when
detained
we
argues,
terrorist
or
attacks,
the
they
of
target
have
been
subject to torture in the hope that useful intelligence will prevent an attack
on the United States and its allies. Osiel's questions are the obvious ones.
that threats
Assuming
continue
to issue
from jihadists
can
groups,
such
men
be detained indefinitely? Can they be tortured or killed at any time regardless

of proximity to combat?
The
and
Hague
Geneva
Conventions
have
not
succeeded
in eliminating
war and war crimes, which Osiel acknowledges, but his discussion of reci
procity does clarify this aspect of the current wars. Although legally embed
ded, "reciprocity cannot support a policy of restraint in fights with al Qaeda
or similar militantjihadists." Jihadists do not act in accord with humanitarian
law, and a response in kind would be "fair" and reciprocal. Realist theories
of international relations pragmatically justify reciprocity because only
threats
of retaliation
renounces
party
moral
tute
hazard
for
dissuade
or ignores
attendant
occurs
only
on such
For
reprisal.
restraint
states
and
military
flicts
with
al Qaeda
the enemy.
Insistence
humanitarian
Osiel,
when
or even
is
reciprocity
at
takes
with
Iran
and
an
end
when
one
the
encourage
there
is no substi
because
"reciprocal
certain
of a sort not
North
duties
only
between
place
adversaries
organizations,
will
In this paradigm,
actions.
fighting
on like
constraints
faced
kinds
of
in the con
Korea."25
Modern concepts of the law of war discard the question of justice in wag
ing war posed by Aquinas. Osiel contends that humanitarianism is rooted in
ancient notions of magnanimity, in what Aristotle called liberality and gen
of treatment
erosity
virtue
of temperance.
and
what
Natural
his
Aquinas,
lawyers
intellectual
subsumed
these
heir,
virtues
treated
under
as
the
a larger
stoic vision of world law and thought that personal virtue realized natural
law. Early modern texts of international law turn toward conceiving states in
individualistic terms, a necessary step in formulating state power in the lan

guage of rights and duties.26
The unintended merit of The End of Reciprocity is to demonstrate how
anachronistic the language of virtue is today. It has been replaced by the mod
ern idiom of rights: "In the contemporary debate over Guantanamo, for
instance,
the only
person
to have
explicitly
invoked
this historically
Western
and 'Christian' virtue in defending the more temperate treatment of jihadist

detainees, to judge from a quick web search, is an isolated Muslim in India."27
The question is not so much whether one language or the other (virtue or
rights) is morally superior or even more effective but whether, as the author
notes
throughout
this book,
the war
against
terror
can
ever
be
a "fair"

fight.
543
Kennedy
The
weak
in contemporary
point
international
remains
jurisprudence
the
relative absence of institutions to adjudicate claims of rights violation on

behalf of individuals and more importantly for us now, whether, even given
such institutions, they can make equitable decisions that will be effectively
That
problem
arose
warfare,
and
in religious
enforced.
partisan
in wars
fought
declared
before
the
in the
Combatants
yet those
by nation-states,
world
twentieth-century
warfare.
wars
wars
past
in
century
no clear
recognized
distinction between peace and war, between combatants and civilians or

between
the
between
lawful
honorable
and
enemy
resort
to force
and
bombardments
of the twentieth-century
that there
be
must
some
chance
common
total
criminal.28
war
became
world
wars.
of success
The
The
for a war
slippage
in the civilian
visible
dictum
to be just
of Aquinas
began
to lose
meaning in 1914. After the atomic bombs of 1945, victory could only mean
strategic, technological, not human, success.
If war
be just
must
for its conduct
to be virtuous,
has
technology
weapons
(nuclear and biochemical) made all wars "unjust" by definition and therefore
all
conduct
of war
That
depraved?
is the
first-order
moral
of war
problem
today. It is not the question of just war that produces Osiel's problem of
reciprocity, but the modern law of war that relies on legal procedure and
the
not
of concepts,
logic
and
virtue
cabinet
eighteenth-century
wars
and
The
justice.
of partisan
aspect
wars,
new against the background of
"jihadist" war, only appears
especially
war.
state-centric
twentieth-century
The problem can be bounded constructively. If Jus belli belongs to states,

then authority "in a specific case to determine the enemy and to fight him"
follows from that.29Two limiting criteria also follow from the concept of the
modern state: the people must be politically unified, and it must be commit
ted to fight for its existence
threat
the
and
the desire
cause.
as
Existence
Determination
or independence.
is a sovereign
for liberty
a political
entity,
decision.
the
of an existential
Others
existence
of
cannot
dictate
mortal
beings
within a territorialstate that is part of the criterion of the political as a friend/

distinction,30
enemy
is to jus
a right that cannot
Hobbes:
belli
be
what
is to natural
self-preservation
renounced,
abrogated,
in
law
or transferred.
With this, we arrive at the set of problems raised in Bonnie Honig's

Politics:
Emergency
elsewhere.31
lished
together,
and
Paradox,
Such
Law,
Democracy,
are
collections
that is the case
in this instance.
all
essays
easier
All
to put
previously
than
together
are more
or less
pub
to pull
concerned
with "paradox": something the Greeks understood as a thing contraryto expec

tation, and which we use colloquially to mean apparent self-contradiction. For
Honig paradox should have great, even supreme, importance in determining
what
matters
iar and
in political
the book
opens
theory.
saying,
She
seems
"If we
ask
wary
what
of entrapment
rules,
procedures,

by the famil
norms,
or
544
considerations
we
may
to guide
ought
that we
think
or constrain
or limit
constrain
the decision
to invoke
emergency,
we
indeed
sovereigntyand
may
do
so, when our arguments find favor with judges or administratorsbut we

also
a kind
adopt
of sovereign
and
perspective
enter
into
the
decision."32
Entering into the decision is what I always thought democratic politics is all
about, but apparently not. There is a difference, so Honig maintains, between
"top-down" sovereignty and something she calls, citing William Connolly,
"accidental sovereignty." This is democracy as sovereign, not deliberative
but
"I
aesthetic:
politics"
seek
at the
but
out
same
contention
agonistic
she
time,
wants
as
a generative
to emerge
from
resource
the
of
with
agony
"truth."
The influence of Agamben is apparent, and not for the better here. In the
of performance,
language
be taken
into
we
are
has
people,
been
in such
consideration
but
subjective,
crucial
something
by a whole
experienced
all
much
about
lost
an account,
the
worse
agony,
it cannot
Perhaps
so focused
for that.
when
especially
or forgotten.
as this one
wants
Honig
on the
to write
radically, she wants to upset the settled, and she ends (paradoxically) beatify
ing the somber elements of the political, those that make us pay attention to
it. Marx
and
political
clearly
take
knew
up
Weberneither
politics
and
wrote
one
is a calling
the
intimately
an
aesthetesaw
about
passionately
with
fraught
suffering
of the
danger
ordinary
the
it. Weber
should
workman's
of the
seriousness
understood
we
to
Marx
and
fail,
day.
that
in
Variously
Emergency Politics a leveling takes place that is out of place. In chapter 2,

for example,
an innovative
eral
political
ies are not just
considerable
trend
theory.
attention
not reliant
Such
epicureans,
is given
on rights-based
to the "Slow
arguments
are grassroots
phenomena
they assert
their preferences
Food"
movement,
that dominate
democracy;
as political
slow
lib
food
resistance.
"Think global. Eat local." Any one of the myriad social movements today,
including Slow Food, might acquire and exercise political powerthat is the
meaning, ultimately, of Schmitt's concept of the political. Once separated
from
the state
"the
political"
could
have
any
content.
As
the Dadaists
under
stood, it could actually have no content whatsoever. Like Lazar, Honig is

critical of Schmitt and of "the exception," but Lazar focuses
realistically on
questions that Honig makes ever more impenetrable.
Each of the books discussed thus far have emergency and exception as
their
subject.
Lazar
examines
the rule
of law
in emergencies;
Osiel
considers
the fate of humanitarian rule of law in irregular war; Honig constructs and
reconsiders the paradoxical shape of law and emergency. All consider emer
gency and exception in relation to notions of what law is and how, exactly,
it rules. Their reception of Schmitt, combined with the large (and
growing)

545
Kennedy
number
of publications
with
concerned
him
and
his
the profusion
ideas,
of
English translations of Schmitt now available and the visible influence of

European applications of Schmitt (notably by Agamben) seems for now to
be shifting discourse away from paradigms such as contractualism and delib
erative democracy, which long defined the core of political theory.
The
tion
influence
more
and,
in Antonio
of radical,
nonliberal
profoundly,
Negri's
there
of democracy
Power
Constituent
Insurgences:
and
to emergency
approaches
the crisis
entailed
&
excep
can
be seen
the Modem
State.33
This brilliant study appeared in Italian a decade before the onset of America's
"war on terror."Nothing published since, including the other books reviewed
here,
tual
and
sources,
fundamental
Negri's
approaches
character
perennial
of power,
intellec
of the causes,
understanding
and
law,
the people.
This is a great book of political theory, in no small part because it under

stands
our present
It is at once
so profoundly.
misfortune
a book
of political
philosophy and a history of thinking about its perennial core: the justification
of governments. Negri efficiently clarifies the question because he is not
content
pushes
declare
to
Negri's
as these
and
been
require
are now
relevant
but
discussion
so I shall
confine
to emergency
among
at that,
theory
Thorough
a review,
discussed
being
leave
as real.
than
more
of it that are most
to aspects
have
and
"paradox"
the contradiction
would
argument
comments
emergency
us to acknowledge
and
of
these
exception
theorists
political
and
jurists.
One must begin with the concept of sovereignty as a legal idea. It belongs
to a specific discourse. As such, we should recognize the necessary gap that
opens between sovereignty and its referent,between res factae and res fictae.
In the law of the state, as in criminal or civil law, a fiction synchronizes the
act
and
its name
"persons,
things
ter of law
and
centuries.34
So
in law.
and
these
long
Early
actions"
informed
modern
(from
and
social
as the sovereign
of state
personthis is the point of Bodin's

coherence.
The
revolutionary
law
accepted
the Institutes
moments
and
political
theory
the
Roman
thought
remained
of
trinity
as the mat
the Digest)
in the
west
for
an identifiable
empiricismthis theory retained its

of eighteenth-century
America
and
France define the terms of the crisis in state theory as a crisis of sovereignty.
Negri rightly defines its source in the constituent power of the people and
brilliantly unravels the incapacity of legal theory to master this new reality
in its own terms. Many of the jurists Negri discussed struggled with the
impossible contradiction of "popular sovereignty," and a great deal of non
sense was written in glorification of the state during the period of liberal
nationalism in Europe.35 Elements of what seem to Honig, Lazar, and Osiel
paradoxical
are
not apparent,
but real
contradictions,
of the essence

because
546
constituent
is not identical
power
to constituted
power.
discussion
Negri's
of
how legal theory tried to incorporate constituent power into the juridical
is
apparatus
because
important
the
terms
set
Jellinek
by
(transcendent),
Kelsen and Rawls (immanent), and Lassalle, Heller, and Smend (integrative)
continue
to influence
how
think
we
about
these
matters.
When Negri asks if constitutional history can be a natural history, it

the terms
changes
of debate.36
What
or who
is the natural
of such
subject
history? Or in Negri's terms, "What does constituent power mean if its

essence
cannot
be reduced
to constituted
but must,
power
be grasped
rather,
in its originary productivity?" It means what it meant for Aristotle in the

substance
or not
of our being,
be."37
in potency
Constituent
as the primary
is an
power
site of "power
essential
that can
of man's
aspect
be
and
being
Negri considers its appearance in several (for him) definitive cases. In this
account
constituted
of resistance
with
and
who
know
is empty,
power
and
the constituted
against
earlier
Negri's
constituent
rebellion
organization,
and
order."38
that
work,
It will
this
is "constant
power
come
is
activity
innovation
political
that arises
as no surprise
revolutionary
to those
power,
and
no
surprise that it appears most clearly in the Marxist formulation: political

liberation
are
"the
to see,
and
economic
all-expansive
when
he refers
are one
emancipation
of living
creativity
to the necessary
for man
labor."39
as species
But
it may
being,
of Marxism,
metaphysics
they
some
surprise
how
close
Negri comes to a Bergsonian philosophy of the natural history of constitu

tions. In Bergson's Creative Evolution, the vital force (elan vital) ultimately
as spirit,
appears
existence
bergsonisme
clear
but not after a long
in the world
to see
was
the
in the vital
as one
march
of labor.
Negri
explicitly
of constituent
metaphysics
movements,
political
the biological
through
and
rejects
power
as
and
life
in time
of Europe
aesthetic,
man's
the affinity,
but
and
before
the Great War, in syndicalism and fascism.

What does political vitality tell us about emergency and exception, state
and sovereignty today? First, the legal distinction between them slips in real
ity. Emergency, depending on its intensity,can be the precursor of exception.

What begins as exercise of legal powers can end in the chaos of a world
without rules, norms, and procedures. Secondly, it tells us that sovereignty is
more than "executive power" and certainly more than a designated dictator.
The "sovereign" of Schmitt's (and the Roman concept of) dictatorship refers
to a potential
that
may
appear
as
constituent
power.
To
conflate
Caesarism
with sovereignty per se is a distortion.40 State and sovereignty, emergency

and exception are concepts that begin with the normal and constituted. If it
is true that the exception
that exception
depends
is more
upon
interesting
norms.
There
than
is no
the norm,
it is no less
true
exception
from
It is

itself.
547
Kennedy
also
as the books
true,
reviewed
here
that the norm
illustrate,
ana
depends
logically on the exception. If the constituted shapes the mortal life, making
it what it is in time and place, then it does so within the ever-present dynamic
of man's potential for destruction and creation, the possibility of enmity and
friendship from which life itself ultimately takes meaning.
We live, as the Chinese say, "in interesting times." The sudden events of
9/11 in fantastic revolt against the principal symbols of American might are
surreal in their ordinary technique of airline schedules and a handyman's
tool. In that emergency, rights were derogated, the schedules upset, life sud
denly abnormal. The pattern is not unfamiliar. Mobilization for war in the
twentieth
century
suspended
many
individual
liberal
these
or
events
to them
response
governments
with
us
presents
an
in
exception
terms.
Schmitt's
The
attack,
in the
rights,
but not normally. Nothing in
dictated rationing and conscriptionlegally
arena
but
of
American
engagement
method
of response.
its
not
abroad
Is
was
else?
constituted
Human
and
law
and
the
power.
In
the
rights
constituent
rule
state
of
and othera sign of
of law
first,
the
by
international
emergency? Or are the vital movementsjihadist

something
determined
an
there
seek
to tame
state
sovereign
both
power,
Antonio Negri sees the violent capacity of instrumental rationality as only

the
modern
state
can
wield.
The
second
remains
as
amorphous
as
today
ever. To both the state (constituted power) and the other (constitutive
power) this applies: "there are two ways of contending: one by using laws,
the other, with force."41 And because, Machiavelli continues, law is often
ineffective, constituted and constituent powers will resort to the other. Of
the recourses
to law,
in matters
ernance
it is always
of war,
weakest
it is most
truly
beyond
said
state
boundaries.
that justice
is denied
Of gov
because
it will always be delayed.

Describing
as
The
an
America's
international
conflict
now
state
foreign
of
is between
wars
and
its
emergency
mistakes
a power
constituted
state
security/surveillance
their
and
defining
an
aspects.
insurgent
con
stituent power, locally specific but globally perceptible. The exception is

not only a dictatorial possibility; it is also a revolutionary moment. The
movements
of our
times
are
in revolt
against
the
modern
state
in every
aspectpolitical, technical, economic, and moral. Their vitality has pro

voked a domestic state of emergency that might in future be described as
constitutional dictatorship. But the vitality of resistance to the west and
the liberal-democratic constitutional state may also provoke here what
we see in our enemies abroad, the destructive and creative possibility of
constituent
power.

548
Notes
1.
and Strengthening
Uniting
and Obstruct
Intercept
2.
Bruce
"The
Ackerman,
Kim
1029-91;
Lane
America
Terrorism
3.
Carl
or English
ditions
based
various
claims
Antonio
Negri,
(Milan:
SugarCo,
Schmitt,
II potere
Schmitt,
"The
Crisis
Max
10.
1920
them, but these rights do
state while
first-order
and
organization
action,
no legal
enjoying
while
45.
Power
and
sulle
saggio
of Sovereignty,
the Modern
of Minnesota
trans.
State,
Press,
alternative
ed. M.
in the section,
(Munich:
Palyi
20;
1991),
del
moderno
President
Press,
The State
was
problems
Theologie,"
Duncker
& Humblot,
Form
in Bonner
and was
of the modern
the
state."
and Landauer.
Lowenstein,
Political
Democracy,"
Carl
(1923);
Festschrift
Schmitt,
fur Ernst Zitel
form (1926).
of the Reich,"
1994),
Political
Writings (Cambridge:
Cam
304-8.
of the Political
a member
to the judicial
directly
and
politische
of the later book
"Structural
Brinkman,
Catholicism
and later in book
posted
und
souveranitatsbegriff
were Thoma,
"The
arising
on the Concept
1985),,
University
Weber,
of Parliamentary
Kelly,
problems
contain
do discriminate
they may have
when
only the first three chapters
articles
183. Schmitt
2003),
and
Chapters
Constituent
des
fur Max
University
Duncan
constitutions
in one
tra
Continental
1992).
Roman
(1923),
Weber,
bridge
and the indi
property
may
of political
MIT,
constituente:
"Soziologie
Other contributors
Carl
Four
(Cambridge:
(Minneapolis:
It contained
mann
University
and German
even
or enforced
Insurgencies:
Boscagli
first of several
9.
Duke
On Liberty).
and rejecting
the object
Theology.
Schwab,
Errinerungsgabe
8.
of Consti
Polities
wider,
to associations.
are instead
Political
Negri,
1923).
of Excep
Journal
in another.
Maurizia
Carl
113 (2004):
States
(Durham:
rights concern
entity as such
to be recognized
transl. George
7.
such
to rights, accepting
the political
Schmitt,
Antonio
Seitzer
as we find in Mill,
law are much
pertaining
Rights
recognition
6.
Journal
of Emergency:
of Pennsylvania
trans.
Theory,
such
on Roman
duties
preference.
Carl
University
articulation,
(or "individuality"
something
Yale Law
in a Time
1001-83.
vidual
not constitute
5.
of 9/11,"
Constitutional
In American
among
to
Required
156.
2008),
rights and
"Law
Scheppele,
65 (2004):
Schmitt,
Press,
4.
Law
Tools
Appropriate
Constitution,"
Emergency
tion and the Temptations

tutional
by Providing
Act of 2001.
(New
of Weber's
York:
Oxford
seminar
staff there, specifically
from civil regulation
University
in Munich
assigned
during the war.

during
Press,
1919
to the legal
549
Kennedy
11.
Pathetisches
Mehring,
Katholisches
Duncker
12.
Carl
Nomi
Claire
Cambridge
14.
15.
Giorgio
(Berlin:
State
and
(Rechtsstaat)
are distinguished.
in Liberal
Democracies
(Cambridge:
2.
2009),
4.
of Emergency,
Agamben,
Hegels:
Hegelstrategie
the rule of law
constitution
of Emergency
Press,
University
States
Lazar,
States
Lazar,
where
Theory,
of the modern
elements
am Leitfaden
Denkweg
antimarxistische
1988).
Constitutional
Schmitt,
Schmitts
und
Grundstellung
& Humbolt,
political
13.
Carl
Denken:
of Exception
(Chicago:
of Chicago
University
Press,
2005).
16.
See,
Clinton
e.g.,
Press,
University
all have
were
been
in which
1948),
to undertake
Lazar,
States
of Emergency,
81.
18.
Lazar,
States
of Emergency,
23.
19.
Lazar,
States
of Emergency,
34.
20.
Quoting
Law
Scheppele,
Princeton
(Princeton:
and Great
France,
States,
of time. The
a similar
17.
Dictatorship
the United
for periods
dictatorships
someone
Constitutional
Rossiter,
be much
set could
Britain
enlarged
study today.
in a Time of Emergency
States
(Lazar,
35
of Emergency,
[note 44]).
21.
Lazar,
22.
Mark
States
bridge:
Law
23.
Osiel,
24.
Carl
Cambridge
The End
Osiel,
26.
See
The End
Richard
Press,
27.
Osiel,
28.
Carl
(Berlin:
29.
Carl
Theorie
Der
Schmitt,
zu Begriff des Poli
18-19.
of War and
Peace
(Oxford:
Oxford
University
Grotius.
des
2nd ed. (Berlin:
Politischen,
1973),
8-9.
The Rights
The End of Reciprocity,

Schmitt,
of
[2002]).
Zwischenbemerkung
& Humblot,
of Reciprocity,
on Hugo
1999),
With Honor
of War (Cam
The Morality
Fuller,
(quoting
1.
des Partisanen:
Duncker
331
2009)
Liberalism
Krause,
of Reciprocity,
Tuck,
Terror, Torture, and the Law
Press,
University
Theorie
Schmitt,
136.
of Reciprocity:
and Sharon
[1964]
tischen
25.
of Emergency,
The End
Osiel,
Begriff
and endnote
316,
Partisanen:
Duncker
des
119, 612.
zum
Zwischenbemerkung
& Humblot,
Politischen
1975),
(Berlin:
Begriff
des
16-17.
&
Duncker
Humblot,
1963), 45.
30.
Schmitt,
31.
Bonnie
Der
Begriff des Politischen,
Honig,
Princeton
Emergency
University
Press,
Politics:
2009).
27.
Paradox,
The
articles
Law,
were
(Princeton:
Democracy
published
between
and 2008.
32.
Honig,
Emergency
Politics,
1.

2005
PoliticalTheory39(4)
550
33.
Antonio
Negri,
neapolis:
34.
University
D. R. Kelley,
of Minnesota
in The Cambridge
"Law,"
ed. J. H. Burns
&
Press,
M Goldie
and
Power
Constituent
Insurgencies.
the Modern
State
(Min
1991).
of Political
History
Cambridge
(Cambridge:
1450-1700,
Thought
Press,
University
1991),
66-94.
3 5.
"Constituent
power
nizing
the hierarchy
France,
England,
of powers."
the United
and orga
act of nation, rising from nowhere
is an imperative
Emile
States
Boutmy,
Studies
250;
(1891),
Law:
in Constitutional
Negri,
quoted
Insurgencies,
2-3.
36.
was
This
before
Max
1919;
Weber's
it was
the contradiction
an unsuccessful
Carl
between
Schmitt's
attempt to bring constituent

into Staat.
the 1920s
mentary
in conceptual
ern constitution
aspects
(Constitutional
of constitutional
ity & Legitimacy

37.
Negri,
38.
Michael
Hardt,
39.
Negri,
40.
John Yoo,
Ellen
the
Kennedy
Concept
and a series
(The Defender
to
him throughout
Crisis
(The
of Parlia
the mod
of the Political)',
of publications
addressing
of the Constitution,
Legal
23. The reference

Three
is to Aristotle's
Keys
Metaphysics.
to Understanding
Constituent
Power,"
viii.
326.
The Powers
after 9/11 (Chicago:
About
Theory)',
contradiction
"Foreword:
Insurgences,
Machiavelli,
(The
itself in
into the constituted,
occupied
vs. liberalism
democracy
in which
manifests
and others).
Insurgencies,
Insurgencies,
41.
stages:
friend vs. enemy
Democracy)',
project
on Germany
Theology
power
back
power
This
and
in Political
question
and constituted
constituent
bring, that is, the Aushnahme
on Russia
in the writings
question
also
of War & Peace:
University
The Prince
of Chicago
(Cambridge:
The Constitution
Press,
Cambridge
and
Foreign
Affairs
2005).
University
Press,
1988),
61.
Author
is a professor
of political
science
at The University
of Pennsylvania.


Emergency and Exception (Kennedy)

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Emergency and Exception

Emergency Politics: Paradox, Law, Democracy by Bonnie Honig; States of Emergency in

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Princeton University Press, 2009. 197 pp. $26.95 (hardcover).

Minneapolis: University of Minnesota Press, 1991.367

The End of Reciprocity:Terror,Torture

by: Ellen Kennedy,

arguments in Die Diktatur (1921)

and Constitutional Theory (1928),

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form of existence, obviously

mental political decisions

est of the preservation of these political decisions."3 Norms typical of bour

"immediate practical interests"5 of state law in 1922. Legal positivists, led

The confusion of emergency and exception in current political theory

theory. The original title, "Sociology of the concept of sovereignty and

tion, a technique. As an unconstituted moment of political vitality, sover

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European constitutions, especially the Weimar constitution that he helped

only directly elected national office, would exercise authoritybased "unques

aspects necessary to any

The concept of exception (Ausnahme) belongs to the circumstances of a

for the unreal,

that the American

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in any constitutional regime."13 She rightly criticizes the norm/exception

tages to this approach. It demystifies a discussion that (largely due to

for the essence

course what is valued might, hypothetically, be evil; but in a rule-of-law

although they may be changed somewhatsuspended, limitedbut this

in which they are embedded. Lazar's discussion of derogations is excellent

state's capacity to fulfill its function."17

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are not the real

Republican exceptionalists differfrom decisionist exceptionalists because

"the state of emergency" is the predicate. This formal distinction detracts

account of why Europe needed so many varieties of emergency law might

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as a great tyranny. Chief among the goods of liberal government is commit

and declared to be "inviolable." Reaction to the war and genocides of 1939

Mark Osiel's The End of Reciprocity is about the politics of humanitarian

mulated in The End of Reciprocity, but Osiel nevertheless provides many

against the capacity of legality and liberalism to comprehend, much less

stituted in terms of rules and procedures will be outfoxed by innovative

'internal morality.'" The military code internalizesthrough discipline and

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procedures with living courage and decency, is a welcome addition to the

minimize suffering in war, and specifically to protect as far as possible civil

applicable to America's conflict with al Qaeda and kindred groups."23 Osiel

the boundary" and his existence beyond every bound is his

tisans and state armies for the paradigm of international law.

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be detained indefinitely? Can they be tortured or killed at any time regardless

individualistic terms, a necessary step in formulating state power in the lan

and 'Christian' virtue in defending the more temperate treatment of jihadist

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relative absence of institutions to adjudicate claims of rights violation on

distinction between peace and war, between combatants and civilians or

for its conduct

new against the background of

"jihadist" war, only appears

The problem can be bounded constructively. If Jus belli belongs to states,

within a territorialstate that is part of the criterion of the political as a friend/

a right that cannot