Unconditional laws and ungovernable sovereigns

Chapter 3

Unconditional Laws and Ungovernable Sovereigns

George Pavlich


The dangers associated with ungovernable sovereignty haunts much western social and political thought, grounding liberal calls for a ‘separation of powers’, the ‘rule of law’, and so on. Attached to influential, and no doubt excessively absolutist, readings of Bodin or Hobbes, a worry over wayward Leviathans who can do anything to anyone at any time remains (cf. Fitzpatrick 2009). In retrospect, Hobbes’ reassurances will appear injudicious to those who have suffered the violence of an unfettered sovereign:

And though of so unlimited a Power, men may fancy many evill consequences, yet the consequences of the want of it, which is perpetuall warre of every man against his neighbour, are much worse. The condition of man in this life shall never be without Inconveniences; but there happeneth in no Common-wealth any great Inconvenience . . .

(Hobbes 1651/1985: 260, ch. 21)

For them, as for Agamben (1998), there is little consequential difference between Hobbes’ imagined ‘state of nature’ and the reign of a sovereign. Indeed, far from quelling, or peaceably resolving, the ‘war of all against all’ – as Hobbes’ commonwealth is supposed to do – Agamben will insist that the logic of sovereignty creates, realizes, and perpetuates this state of nature. The matter may be complicated further in current contexts where sovereign political logics have undergone consequential changes, the effects of which unfold as national sovereignties are exceeded by more encompassing (global, international) sovereignties and laws, and where vast agglomerations of ‘life’ are managed through governmental techniques – all of which magnify questions pertaining to whether sovereignty is intrinsically ungovernable.

Conventionally, debates around how to check a sovereign with illimitable power, who is radically ungovernable, are framed around ‘absolutism’ versus ‘constitutionalism’. However, the following pursues the matter by questioning whether a sovereign is always ungovernable, beyond law, beyond a law of sovereignty. Ultimately, at stake here is whether or not modern sovereignty politics ought only to be engaged – as Agamben (1998, 2001) might allege – by overcoming its basic forms. Or are there ways to reinvigorate engagements with sovereignty politics opening continuously to horizons in excess of existing forms thereof, relentlessly pursuing ways to place any sovereign before, say, an illimitable justice, or democracy (Pavlich 2010)? If that finite calculation is to be made through deconstructible laws of sovereignty, one need not be addressing constitutional law, but a law of constitutions. To be sure, any capacity to order an unconditional, yet historically gathered, sovereign being is a momentous, if always contingent, political accomplishment. As Foucault (2007) aptly depicts, a significant achievement of modernity is to have associated an unconditional sovereign with a defined territory, and to posit a supreme authority that expresses the will of a society, the people, a commonwealth, and so on.

But what if the restless grounds that shape medieval images of an ungovernable sovereign shift? Limiting this question, the following discussion pursues an expressly theoretical inquiry: can the political logic (theology?) of an ungovernable sovereign be understood as an historical event? And have new ‘governmentalized’ forms of sovereignty transformed this logic? If so, what might the laws of such governmental sovereignty be?

This chapter explores such questions through three modulations. First, it outlines an enduring western logic that posits the sovereign as an unconditional, ungovernable entity. Thereafter, it turns to residues of that logic through a confrontation between Agamben and Foucault/Butler on the question of an ‘ungovernable sovereign’, taking account of Foucault’s argument that medieval forms of sovereignty were gradually, in the fifteenth and sixteenth centuries, ‘governmentalized’ alongside an emerging modern ‘administrative state’ (2007: 109). Here, one finds two different ways to understand the ‘ungovernable’ sovereign: Agamben’s view that a liberal sovereign is inherently ungovernable (and so should be overthrown) versus Foucault’s more nuanced idea that modernity’s ‘ungovernable sovereign’ is made possible by discipline and (biopolitical) governance. The point is sharpened by Butler’s (2004) sense that new forms of sovereignty are generated by governmental political horizons. Third, I turn to Fitzpatrick’s (2005: 8) formulation of ‘the law of the law’ to consider the logic of sovereignty not as something that is fundamentally ungovernable, but as an emerging governmental calculation of a radically ungovernable terrain. The illimitable indeterminacy of the latter is the stuff of history; the need to ‘cut’ determinate aspects is part of current forms of life. And the law of the sovereign’s law ‘ties’ the two together in what Fitzpatrick would call a ‘determined responsiveness’, or perhaps a ‘responsive determinism’. Reversing command theories of law, one might explore the law of sovereignty (in both meanings) as both ‘determining’ and ‘responsive’ to what is always ungovernable, illimitable, and incalculable. In this sense, a ‘democracy to come’ persistently haunts attempts to posit democratic, governed sovereigns (Derrida 2005).

Logic, Sovereign Commands, and The Law of The Excluded Middle

We have already alluded to an influential interpretation of Bodin and Hobbes as protagonists of an absolute sovereignty: the unconditional sovereign who declares a law must thereby except itself from that law which gives it force (see Fitzpatrick 2007). Schmitt’s overused ‘sovereign is he who declares the exception’ line abounds in recent analyses of contemporary states (e.g. Agamben 2005). And the exception involves a paradox whereby the sovereign emerges as one who initiates the law and is thereby excluded from it.

Bertrand Russell’s references to a hypothetical Sicilian barber who shaves only and all the men in his village who do not shave themselves indicates the claim at hand (see Rasch 2004: 90). What of the barber – does he shave himself? If he does, then he contradicts the only requirement of the above statement. If he does not shave himself, then he cannot be considered to shave all men of the village. In other words, the ambivalent position of the barber is consequential for how we grasp the proposition. Indeed, for it to be meaningful the barber must be placed outside of the enunciation, must be exempted from its decrees. In the matter of shaving he is paradoxically both a member of the village and simultaneously above it; he literally ‘rules’ in matters of shaving.

That logic is echoed in the foundations of western philosophical logic. Logic’s ‘law of the excluded middle’ states that ‘All propositions are either true or false.’ But what is the status of this proposition? Is it true or false? Can the laws of logic be subjected to their own laws? Does that law include itself in its own decree, or does it except itself from that law? To make any sense in this context, the laws of logic cannot apply to themselves; they are of a different dimension. The law of the excluded middle is thus neither true nor false; it incarnates a sort of excluded middle – it is the excluded spacing that opens up the possibility of a law in which statements are to be considered true or false. It proclaims absolutely without subjecting itself to the demands of its own laws of truth and falsity. Is there a law that governs this ‘excluded middle’ or is it radically ungovernable?

In still another version of the paradox, Derrida evokes La Fontaine’s fable of the wolf and the lamb. It begins with the line ‘The strong are always best at proving they’re right’ before telling the story of a lamb drinking from a serene brook who unfortunately is spotted by a hungry wolf. The wolf tells the lamb he (or she) will pay for the gall of mucking up his ‘beverage’. The lamb protests by way of reason that there is no way he could have done so, since the brook is vast and he is still nursing from his dam. The wolf retorts that someone in the lamb’s clan has done so and forthwith proceeds to eat his ‘midday snack’: ‘So trial and judgment stood’ (Derrida 2005: x). The sovereign wolf declares, judges, and executes his law, and in so doing carves out the space for the existence of a particular kind of law. The story indicates this paradoxical feature that is intrinsic to the logic of sovereignty: the sovereign declares that her or his law is universal (i.e. applies to all), which means that a form of sovereignty arises which cannot be subject to that law without renouncing a sovereign prerogative. That is, the logic of sovereignty excepts the sovereign from the laws that she or he declares as applicable to all. Moments of successful declaration and enforcement, decision, yield particular versions of the sovereign. And here one senses traces of an ungovernable sovereign, an unrulable ruler, the definer of law who is beyond the law, etc. La Fontaine solicits a sovereign beyond, nay above, the reach of laws that are to subject all others.

All three cases – the barber, the law of the excluded middle, and La Fontaine’s wolf – intimate a political logic, which generates a sovereign out of an exception. At the heart of that logic is an impossible, if mystical, leap through which a sovereign event declares a law and excepts her- or himself from it. There is no rational justification for the violent initiation of a regime’s law, or the creation of a domain that enables the enunciation of what is normal and what is not; of what is true and what is not; of who is friend and who is enemy, etc. The rationales for the regime are always ex post facto and occur within the laws of language, logic, politics, etc., initiated by founding events. One is here reminded of the theological auspices – God the unconditional sovereign – of sovereignty. But as we move further from modernity’s founding myths, including the denial of myth (Fitzpatrick 2001b, 2007), so another question arises: is this medieval logic of sovereignty on the move? One could explore the impossibility that contours these sovereignty rationales. For instance, what if the distinction between generation and effect were blurred to the point of enabling a law of the excluded middle, a law of ungovernable sovereignty? Is there another law in play here – not one that ‘includes law by excluding it’, but one that relentlessly ‘cuts’ a finite law from what is infinitely beyond? Let us defer this question to a later discussion of Fitzpatrick’s sense of ‘the law of the law’. For now, we might attend to another burning question: can liberal sovereignty ever be restrained by the power relations out of which it is constituted?

Agamben, especially in works like Homo Sacer (1998) and State of Excep-tion (2005), says no. Modern ‘biopolitical sovereignty’ generates a critique of the West’s liberal politics centred on the idea of a radically ungovernable sovereign with the power to except itself from the laws that it generates. The ground of sovereign power is ultimately, and by logical definition, ‘the sovereign’s preservation of his natural right to do anything to anyone’ (1998: 106). His analysis is quite different from that of Foucault, who posits that the sovereign has become ‘governmentalized’ and so is arguably subject to governmental powers. More precisely, the deployment of governmental techniques to vast areas of modern being has enabled diluted forms of medieval sovereignty to persist in modern political arrangements (2007: 59). For Foucault (and developed by Butler), in its modern incarnation the sovereign is more and more constituted by practices of governance (biopolitics) and discipline. In this sense the modern sovereign is enabled by governance, and is not therefore absolutely ungovernable. Without rehearsing the nuances of the debate between Agamben and Foucault, which has attracted much attention elsewhere (see French 2007; Genel 2006; Gratton 2006; Norris 2005; Fitzpatrick 2001a), I shall here focus exclusively on questions of governance and sovereignty.

Ungovernable Sovereigns and The ‘State of Nature’

Referring to the ‘exceptional’ political logic of modern sovereignty, Agamben (as noted) argues that the opening moment of western political thinking is not the contract between Hobbesian subjects who – through a social pact – form a society to escape an imaginary and brutish ‘state of nature’. Rather, he reinterprets Nancy’s (1993) discussion of the ban as the founding moment of western politics: the ‘originary juridico-political relation is the ban’ (1998: 111). The sovereign contains a biopolitics that transforms its illimitable power ‘into a power to decide the point at which life ceases to be politically relevant . . . In modern biopolitics, sovereignty is he who decides on the value or non-value of life as such’ (1998: 142). That ‘decisive act’ enables a sort of sovereignty where

the realm of bare life – which was originally situated at the margins of the political order – gradually begins to coincide with the political realm, and exclusion and inclusion, outside and inside, bios and zoe, right and fact, enter into a zone of irreducible indistinction.