The Paradox of Sovereignty
1.1. The paradox of sovereignty consists in the fact the sovereign is, at the same time, outside and inside the juridical order. If the sovereign is truly the one to whom the juridical order grants the power of proclaiming a state of exception and, therefore, of suspending the order's own validity, then "the sovereign stands outside the juridical order and, nevertheless, belongs to it, since it is up to him to decide if the constitution is to be suspended in toto" (Schmitt, Politische Theologie, p. 13). The specification that the sovereign is "at the same time outside and inside the juridical order" (emphasis added) is not insignificant: the sovereign, having the legal power to suspend the validity of the law, legally places himself outside the law. This means that the paradox can also be formulated this way: "the law is outside itself," or: "I, the sovereign, who am outside the law, declare that there is nothing outside the law [che non c'e un fuori legge]."
The topology implicit in the paradox is worth reflecting upon, since the degree to which sovereignty marks the limit (in the double sense of end and principle) of the juridical order will become clear only once the structure of the paradox is grasped. Schmitt presents this structure as the structure of the exception (Ausnahme):
The exception is that which cannot be subsumed; it defies general codification, but it simultaneously reveals a specifically juridical formal element: the decision in absolute purity. The exception appears in its absolute form when it is a question of creating a situation in which juridical rules can be valid. Every general rule demands a regular, everyday frame of life to which it can be factually applied and which is submitted to its regulations. The rule requires a homogeneous medium. This factual regularity is not merely an "external presupposition" that the jurist can ignore; it belongs, rather, to the rule's immanent validity. There is no rule that is applicable to chaos. Order must be established for juridical order to make sense. A regular situation must be created, and sovereign is he who definitely decides if this situation is actually effective. All law is "situational law." The sovereign creates and guarantees the situation as a whole in its totality. He has the monopoly over the final decision. Therein consists the essence of State sovereignty, which must therefore be properly juridically defined not as the monopoly to sanction or to rule but as the monopoly to decide, where the word "monopoly" is used in a general sense that is still to be developed. The decision reveals the essence of State authority most clearly. Here the decision must be distinguished from the juridical regulation, and (to formulate it paradoxically) authority proves itself not to need law to create law.... The exception is more interesting than the regular case. The latter proves nothing; the exception proves everything. The exception does not only confirm the rule; the rule as such lives off the exception alone. A Protestant theologian who demonstrated the vital intensity of which theological reflection was still capable in the nineteenth century said: "The exception explains the general and itself. And when one really wants to study the general, one need only look around for a real exception. It brings everything to light more clearly than the general itself. After a while, one becomes disgusted with the endless talk about the general-there are exceptions. If they cannot be explained, then neither can the general be explained. Usually the difficulty is not noticed, since the general is thought about not with passion but only with comfortable superficiality. The exception, on the other hand, thinks the general with intense passion." (Politische Theologie, pp. 19-22)
It is not by chance that in defining the exception Schmitt refers to the work of a theologian (who is none other than Soren Kierkegaard). Giambattista Vico had, to be sure, affirmed the superiority of the exception, which he called "the ultimate configuration of facts," over positive law in a way which was not so dissimilar: "An esteemed jurist is, therefore, not someone who, with the help of a good memory, masters positive law [or the general complex of laws], but rather someone who, with sharp judgment, knows how to look into cases and see the ultimate circumstances of facts that merit equitable consideration and exceptions from general rules" (De antiquissima, chap. 2). Yet nowhere in the realm of the juridical sciences can one find a theory that grants such a high position to the exception. For what is at issue in the sovereign exception is, according to Schmitt, the very condition of possibility of juridical rule and, along with it, the very meaning of State authority. Through the state of exception, the sovereign "creates and guarantees the situation" that the law needs for its own validity. But what is this "situation," what is its structure, such that it consists in nothing other than the suspension of the rule?
[??] The Vichian opposition between positive law (ius theticum) and exception well expresses the particular status of the exception. The exception is an element in law that transcends positive law in the form of its suspension. The exception is to positive law what negative theology is to positive theology. While the latter affirms and predicates determinate qualities of God, negative (or mystical) theology, with its "neither ... nor ...," negates and suspends the attribution to God of any predicate whatsoever. Yet negative theology is not outside theology and can actually be shown to function as the principle grounding the possibility in general of anything like a theology. Only because it has been negatively presupposed as what subsists outside any possible predicate can divinity become the subject of a predication. Analogously, only because its validity is suspended in the state of exception can positive law define the normal case as the realm of its own validity.
1.2. The exception is a kind of exclusion. What is excluded from the general rule is an individual case. But the most proper characteristic of the exception is that what is excluded in it is not, on account of being excluded, absolutely without relation to the rule. On the contrary, what is excluded in the exception maintains itself in relation to the rule in the form of the rule's suspension. The rule applies to the exception in no longer applying, in withdrawing from it. The state of exception is thus not the chaos that precedes order but rather the situation that results from its suspension. In this sense, the exception is truly, according to its etymological root, taken outside (ex-capere), and not simply excluded.
It has often been observed that the juridico-political order has the structure of an inclusion of what is simultaneously pushed outside. Gilles Deleuze and Felix Guattari were thus able to write, "Sovereignty only rules over what it is capable of interiorizing" (Deleuze and Guattari, Mille plateaux, p. 445); and, concerning the "great confinement" described by Foucault in his Madness and Civilization, Maurice Blanchot spoke of society's attempt to "confine the outside" (enfermer le dehors), that is, to constitute it in an "interiority of expectation or of exception." Confronted with an excess, the system interiorizes what exceeds it through an interdiction and in this way "designates itself as exterior to itself" (L'entretien infini, p. 292). The exception that defines the structure of sovereignty is, however, even more complex. Here what is outside is included not simply by means of an interdiction or an internment, but rather by means of the suspension of the juridical order's validity-by letting the juridical order, that is, withdraw from the exception and abandon it. The exception does not subtract itself from the rule; rather, the rule, suspending itself, gives rise to the exception and, maintaining itself in relation to the exception, first constitutes itself as a rule. The particular "force" of law consists in this capacity of law to maintain itself in relation to an exteriority. We shall give the name relation of exception to the extreme form of relation by which something is included solely through its exclusion.
The situation created in the exception has the peculiar characteristic that it cannot be defined either as a situation of fact or as a situation of right, but instead institutes a paradoxical threshold of indistinction between the two. It is not a fact, since it is only created through the suspension of the rule. But for the same reason, it is not even a juridical case in point, even if it opens the possibility of the force of law. This is the ultimate meaning of the paradox that Schmitt formulates when he writes that the sovereign decision "proves itself not to need law to create law." What is at issue in the sovereign exception is not so much the control or neutralization of an excess as the creation and definition of the very space in which the juridico-political order can have validity. In this sense, the sovereign exception is the fundamental localization (Ortung), which does not limit itself to distinguishing what is inside from what is outside but instead traces a threshold (the state of exception) between the two, on the basis of which outside and inside, the normal situation and chaos, enter into those complex topological relations that make the validity of the juridical order possible.
The "ordering of space" that is, according to Schmitt, constitutive of the sovereign nomos is therefore not only a "taking of land" (Landesnahme)-the determination of a juridical and a territorial ordering (of an Ordnung and an Ortung)-but above all a "taking of the outside," an exception (Ausnahme).
[??] Since "there is no rule that is applicable to chaos," chaos must first be included in the juridical order through the creation of a zone of indistinction between outside and inside, chaos and the normal situation-the state of exception. To refer to something, a rule must both presuppose and yet still establish a relation with what is outside relation (the nonrelational). The relation of exception thus simply expresses the originary formal structure of the juridical relation. In this sense, the sovereign decision on the exception is the originary juridico-political structure on the basis of which what is included in the juridical order and what is excluded from it acquire their meaning. In its archetypal form, the state of exception is therefore the principle of every juridical localization, since only the state of exception opens the space in which the determination of a certain juridical order and a particular territory first becomes possible. As such, the state of exception itself is thus essentially unlocalizable (even if definite spatiotemporal limits can be assigned to it from time to time).
The link between localization (Ortung) and ordering (Ordnung) constitutive of the "nomos of the earth" (Schmitt, Das Nomos, p. 48) is therefore even more complex than Schmitt maintains and, at its center, contains a fundamental ambiguity, an unlocalizable zone of indistinction or exception that, in the last analysis, necessarily acts against it as a principle of its infinite dislocation. One of the theses of the present inquiry is that in our age, the state of exception comes more and more to the foreground as the fundamental political structure and ultimately begins to become the rule. When our age tried to grant the unlocalizable a permanent and visible localization, the result was the concentration camp. The camp-and not the prison-is the space that corresponds to this originary structure of the nomos. This is shown, among other things, by the fact that while prison law only constitutes a particular sphere of penal law and is not outside the normal order, the juridical constellation that guides the camp is (as we shall see) martial law and the state of siege. This is why it is not possible to inscribe the analysis of the camp in the trail opened by the works of Foucault, from Madness and Civilization to Discipline and Punish. As the absolute space of exception, the camp is topologically different from a simple space of confinement. And it is this space of exception, in which the link between localization and ordering is definitively broken, that has determined the crisis of the old "nomos of the earth."
1.3. The validity of a juridical rule does not coincide with its application to the individual case in, for example, a trial or an executive act. On the contrary, the rule must, precisely insofar as it is general, be valid independent of the individual case. Here the sphere of law shows its essential proximity to that of language. Just as in an occurrence of actual speech, a word acquires its ability to denote a segment of reality only insofar as it is also meaningful in its own not-denoting (that is, as langue as opposed to parole, as a term in its mere lexical consistency, independent of its concrete use in discourse), so the rule can refer to the individual case only because it is in force, in the sovereign exception, as pure potentiality in the suspension of every actual reference. And just as language presupposes the nonlinguistic as that with which it must maintain itself in a virtual relation (in the form of a langue or, more precisely, a grammatical game, that is, in the form of a discourse whose actual denotation is maintained in infinite suspension) so that it may later denote it in actual speech, so the law presupposes the nonjuridical (for example, mere violence in the form of the state of nature) as that with which it maintains itself in a potential relation in the state of exception. The sovereign exception (as zone of indistinction between nature and right) is the presupposition of the juridical reference in the form of its suspension. Inscribed as a presupposed exception in every rule that orders or forbids something (for example, in the rule that forbids homicide) is the pure and unsanctionable figure of the offense that, in the normal case, brings about the rule's own transgression (in the same example, the killing of a man not as natural violence but as sovereign violence in the state of exception).
[??] Hegel was the first to truly understand the presuppositional structure thanks to which language is at once outside and inside itself and the immediate (the nonlinguistic) reveals itself to be nothing but a presupposition of language. "Language," he wrote in the Phenomenology of Spirit, "is the perfect element in which interiority is as external as exteriority is internal" (see Phanomenologie des Geistes, pp. 527-29). We have seen that only the sovereign decision on the state of exception opens the space in which it is possible to trace borders between inside and outside and in which determinate rules can be assigned to determinate territories. In exactly the same way, only language as the pure potentiality to signify, withdrawing itself from every concrete instance of speech, divides the linguistic from the nonlinguistic and allows for the opening of areas of meaningful speech in which certain terms correspond to certain denotations. Language is the sovereign who, in a permanent state of exception, declares that there is nothing outside language and that language is always beyond itself. The particular structure of law has its foundation in this presuppositional structure of human language. It expresses the bond of inclusive exclusion to which a thing is subject because of the fact of being in language, of being named. To speak [dire] is, in this sense, always to "speak the law," ius dicere.