Exception and governmentality in the critique of sovereignty

Introduction

This article investigates the relation between exception and governmentality in the critique of sovereignty. It aims to contribute to a growing body of literature that considers these concepts together and problematizes the boundaries between them. Through readings of Carl Schmitt and Michel Foucault, I engage the relation between exception and governmentality in terms of their spatiotemporal dimensions, that is, in terms of their relation to the boundaries of political order. This is particularly relevant in the context of the critique of sovereignty, the principle that determines the location of those boundaries in contemporary political life. This approach demonstrates that both exception and governmentality immanently express the spatiotemporal dimensions of the problem of sovereignty and thus affirm an account of political order with the same limits, limits determined by reference to an unsustainable distinction between inside and outside, exceptional moment and routine norm. This suggests that exception and governmentality work less as critiques of modern political sovereignty than as affirmations of its spatiotemporal conditions of (im)possibility.

As many of its theorists have noted, sovereignty is a ‘notoriously elusive concept’ (Suganami, 2007: 511); it has a way of confounding attempts to put it under the microscope. This difficulty is produced by what is frequently referred to as the problem of sovereignty, or the problem of founding – a problem centred around the origins of sovereign authority. As Walker (2010: 196) writes,

Sovereignty can be understood to be a problem, or rather a massive complexity of problems concerning the authorization of authority. Political theorists know this primarily as the problem of founding, the authorization of a discrimination between before and after that works as the ground on which to authorize all other discriminations.

This problem has been expressed in numerous ways by a great range of political thinkers: as the distinction between constituent and constituted power in constitutional polities (Arendt, 1963; Derrida, 1986); between everyday ‘politics’ and their organizing principle ‘the political’ (Lefort, 1988); between norms expressed in rule and law and exceptions to them (Schmitt, 1985); between law-producing violence and law-preserving violence (Benjamin, 1978); between the founding of political order and its perpetuation (Derrida, 2002); and between the disciplines of political theory and international relations (Walker, 1993). The problem of sovereignty reveals sovereignty’s dual character – ‘both generated and generative’ (Brown, 2010: 52).

In contemporary international relations, this problem is frequently expressed through the figures of Carl Schmitt and Michel Foucault and their respective concepts of exception and governmentality (Prozorov, 2005: 82). Exception has become the preferred conceptual language for the critique of liberal governments’ use of extra-legal state power, especially in the realms of insecurity, borders and counterterrorism (Huysmans, 2008: 165). This ‘minor cottage industry based on the work of Carl Schmitt’, as Mark Neocleous (2006: 192) calls it, has participated in what Andrew Neal (2012: 260) describes as an ‘intense debate on the question of exceptionalism’ that emerged in the years following 9/11. Despite the currency the concept has gained in critical discourses on sovereignty, a number of scholars have expressed scepticism about its usefulness. They argue that exception is a somewhat clumsy analytical tool that tends to obscure the subtleties and historically specific character of sovereign power (Huysmans, 2004, 2008; Hjorth, 2014). For Rabinow and Rose, for example, biopolitics understood ‘as a biopolitics of the state modelled on the figure of the sovereign … suits the absolutisms of the Nazis and Stalin’ and thus requires ‘a more nuanced account of power, and of sovereign power, to analyze contemporary rationalities and technologies of biopolitics’ (Rabinow and Rose, 2006: 202; see also Rose and Miller, 2010). Some scholars thus eschew the concept of exception altogether in favour of analyses that privilege governmentality as a theoretical framework (Bigo, 2002; Aradau and Van Munster, 2007, 2008).

Despite their status as the paradigmatic thinkers of exception and governmentality, respectively, neither Schmitt nor Foucault can be readily accused of being unaware of the difficulties their own accounts of sovereignty present. While they seem like very different figures – their political convictions are divergent, their methodologies dissimilar, their conclusions (seemingly) oppositional – reading their accounts of modern political life together reveals that the effects of power that they measure are strikingly similar (Ojakangas, 2001; Dean, 2012). The two are thus ideal figures for working through the aporetic relation between accounts of sovereignty expressed by exception and by governmentality. It is not unexpected, then, that there is a growing literature in which Schmitt and Foucault are read as thinkers whose work is closely related. Prozorov (2005: 82), for example, claims that the pair ‘are permanently at work in mutual deconstruction, the positively valorized concepts in one approach (sovereignty and governmentality, respectively) functioning as disavowed blind spots in the other’, while Mitchell Dean (2008: 25–26) argues that any elision of the state or sovereign power constitutes a reductionism equally as harmful as the one Rabinow and Rose identify. In order to ensure ‘that our political thought does not again become reductive, this time to techniques and rationalities of governing’, Dean suggests that ‘we should not be so quick to replace one with the other’ and instead be mindful of the relation between the two (Dean, 2008: 27; see also Dean, 2013). This has been done through analysis of the relation between exception and raison d’etat (Nigro, 2014), as well as through historical accounts of a shift in the character of state juridical apparatuses so that ‘the specificity of acts of regulation in the administrative state conjoins the problematic of government with that of the state of exception’ (McLoughlin, 2012: 700).

The widespread sense that neither term is sufficient for ontological accounts of sovereign power or methodological approaches to its study is demonstrated by the wealth of scholarship in international relations and security studies that considers in detail the relation between sovereign exceptionalism and governmental management. Moving beyond the well-known assertions that the exception has in some way become the norm (Benjamin, 1968: 257; Agamben, 1995: 168–169; Hardt and Negri, 2001), scholars increasingly recognize the need to study how governmentality and exception exist in configurations in which they intersect or reinforce one another as mutually constitutive forms of power. This is particularly the case in studies of security practices at border zones (Salter, 2008; Bigo, 2008b) and the intersection of state sovereignty and neoliberal capital (Ong, 2006; Best, 2007). Recent interventions in global governmentality have also called for approaches that recognize the coexistence of, and relation between, governmental practices and more authoritarian forms of violence (see Hindess, 2004; Dean, 2004). Calls have also been made within security studies for a reformulation of the exception/governmentality relation itself (Aradau and Van Munster, 2009: 695; c.a.s.e. collective, 2006: 469). This is a project Judith Butler has taken up, arguing that the US practice of indefinite detention signals a new configuration of power in which ‘sovereignty emerges within the field of governmentality’ (Butler, 2004: 53).

Others have taken up this task by demonstrating how exception works through law rather than beyond it. Mark Neocleous, for example, shows how exceptional state practices do not take place in an extra-legal realm, but are rather written into legal statutes themselves. He claims that ‘no constitution exists that does not contain provisions for emergency rule’, and thus ‘it is through the law that violent actions conducted in “emergency conditions” have been legitimated’ (Neocleous, 2006: 206). Echoing Neocleous’s claim, Andrew Neal (2012: 273) draws on an analysis of counter-terrorist lawmaking in the United Kingdom to argue that sovereign exceptionalism ‘does not make exceptions to the law, but rather enacts new laws in an exceptional way through a discourse of emergency’. Over time, exceptional powers become normalized within legal discourse and practice, so that ‘the problem is no longer the binary distinction between normal times and exceptional times, but the political and legal processes entailed by exceptional and emergency powers over time, which have blurred that distinction’ (Neal, 2012: 267). If normal is understood as legal and exceptional as the suspension of law, given the way emergency powers are enacted through law, the norm/exception binary appears inadequate to the task of apprehending the operation of sovereignty.

Fleur Johns (2005: 614), meanwhile, challenges the common explanation of Guantánamo as a space of exception, claiming instead that ‘the plight of Guantanamo Bay detainees is less an outcome of law’s suspension or evisceration than of elaborate regulatory efforts by a range of legal authorities’. This leads her to break the association between extra-legality and exception, as she advocates for ‘a renewed sense of the exception and the decision that “emanates from nothingness” within law’ (Johns, 2005: 634). In her view, the concept of exception is not necessarily antithetical to nor does it exclude the kind of normalizing practices at work in Guantánamo Bay. Roxanne Lynn Doty (2007) marks a similar phenomenon, arguing that vigilante patrols along the Mexico–USA border enact exceptions in ways that undermine Schmitt’s account of a unified sovereign who decides on the exception ‘from above’.

Even this modest sample of the literature on sovereignty, exception and governmentality demonstrates the tremendous diversity it contains. Yet, for all its diversity, this literature taken as a whole expresses a striking duality, one that mirrors the duality of sovereignty as it is expressed through the concepts of exception and governmentality. This duality takes the form of, on the one hand, work that shows how governmental practices produce forms of exceptionalism and, on the other, work demonstrating how exceptional practices produce governmental forms of normalization. This deftly undermines the spatiotemporal foundations on which the distinction between exceptional and governmental rests, but still assumes a capacity to distinguish between the exceptional and the governmental, which leads to a reinscription of the distinction itself. In short, it is argued either that the concept of normalization can be expanded to subsume exceptions or that the concept of exception can be expanded to subsume normalization. These approaches are both valid and convincing, but, to the extent that they are, taken together they represent the distinction their accounts are designed to problematize: How does one differentiate between a normalization that exceptionalizes and an exceptionalism that normalizes? While these claims to either exceptionalism or normalization may be indicative of different methodological approaches, what is notable is the way these varied approaches result in corresponding accounts of the spatiotemporal boundaries of political order. My reading of the literature in this way is thus oriented toward multiplying the diversity of approaches to the critique of sovereignty, approaches that can avoid a reinscription of the spatiotemporal categories set out by modern state sovereignty. Despite the numerous attempts to think of exception and governmentality in relation to one another and problematize their conventional usage, the original distinction between them re-emerges within the literature.

This suggests something about the concepts of exception and governmentality themselves that makes avoiding a binary opposition between the two particularly difficult. Mitchell Dean theorizes something of this dynamic in his claim that the tendency for analyses of power to result in an antimony that can then be unified and made one term in a further antimony is indicative of the ability of power to continually escape the bounds of the conceptual frameworks through which it is apprehended. In his view, ‘there is an “excess” in the concept of power beyond what it might signify, which marks it and forces this movement towards oppositions, their unification and further opposition’ (Dean, 2012: 107). For Dean, then, neither Foucault nor Schmitt is able to capture the ‘excess’ of power through either of their concepts.

What my readings of Schmitt and Foucault demonstrate, however, is that this phenomenon is not the result of a characteristic of the concept of power itself, but rather of the way exception and governmentality both express the problem of sovereignty in their relation to political order. This relation – which consists of a spatial distinction between the inside and outside of political order and a temporal distinction between the singular moment and routinized repetition – informs accounts of the limits and possibilities of contemporary political life and is an expression of the principle of the sovereignty of the modern state (Ashley, 1988; Walker, 1993: 6). What a close reading of Schmitt and Foucault’s accounts of exception and governmentality reveals is that these dimensions are expressed not only between exception and governmentality, but also within them. Both concepts give an account of the limits of modern political order that is based on the (unsustainable) distinction between inside and outside, exceptional moment and routine norm. The immanent expression of the spatiotemporal conditions of modern state sovereignty within exception and governmentality renders them indistinguishable from one another in terms of those conditions. Exception and governmentality are therefore not opposing accounts of the operation of sovereign power, but rather affirmations of a vision of political order with the same limits. They therefore serve less as a critique of sovereignty than as an affirmation of the spatiotemporal conditions on which modern state sovereignty rests.

This analysis thus has the potential to reinvigorate critical approaches to sovereignty, particularly those in the realm of security studies, where exception and governmentality are frequently employed as analytic tools and explanatory frames, by calling attention to some of the methodological problems inherent in critiques of sovereignty based on typologies of exception and governmentality. My readings of these two figures will focus mainly on two texts: Security, Territory, Population (Foucault, 2007) and Political Theology (Schmitt, 1985). These texts contain the most sustained, explicit accounts of the concepts of exception and governmentality and their relation to sovereignty. While the capacity to decide the exception is, for Schmitt, the definition of sovereignty itself, the Security, Territory, Population lectures are one of the relatively rare instances in which Foucault engages with sovereignty directly, specifically in order to mark its differentiation from governmentality. These texts are thus exemplary for thinking through the relation between exception and governmentality and their usefulness for critiques of sovereignty.

Foucault, governmentality, sovereignty

In Security, Territory, Population, Foucault is concerned with elaborating the difference between two forms of power, one that is called sovereign, the other governmental. This is not a function of an abandonment of the problem of sovereignty on Foucault’s part, but rather a desire to understand what he believes is a changing relation between sovereign authority and the operation of government. Foucault wants to move away from a model of sovereign power that imagines a unified sovereign that operates through prohibition in direct relation to its subjects, in favour of a sovereignty imagined as a diffuse agglomeration of social and political effects produced through regularized procedures of government. He oscillates between an acknowledgement of the continued relevance of a sovereign authority to contemporary politics and an apparent desire to banish that form of sovereignty from the vocabulary of political theory in favour of governmentality. While one cannot expect the kind of coherence and systematicity from a set of lectures – lectures marked by ‘hesitations’ and ‘crisis’ at that (Bigo, 2008a: 93–94) – that one might from a monograph, the ambiguities and inconsistencies I address in this text stem more from the concepts themselves than from any failures on the part of Foucault, and are in any case productive ones. Nevertheless, Foucault’s elaboration of the distinction between sovereignty and governmentality reveals the way the concepts maintain an analogous relation to the spatiotemporal co-ordinates of modern political order and thus become difficult to distinguish from one another.

Foucault (1980: 121) famously claimed that political theory must ‘cut off the King’s head’ if it is to accurately map the workings of contemporary political power, an injunction that has been invoked in support of his supposed belief in the irrelevance of sovereignty to the political problems produced by modern politics. While this view has not been completely displaced, readings of Foucault that highlight his engagement with sovereignty are now common enough that Andrew Neal could claim in 2004 that ‘Foucault’s concern with the problem of sovereignty has been known to his Anglo-American readership for some time’ (Neal, 2004: 373). This line of thought suggests that Foucault does not forsake the problem of sovereignty altogether and recognizes its persistence in modern political formations. Foucault’s explicit attention to the problem of sovereignty in Society Must Be Defended (2003) certainly bolsters this view, as does his assertion in the first lecture of the Birth of Biopolitics series – referring to his previous set of lectures, Security, Territory, Population – that he ‘only considered, and again this year will only consider the government of men insofar as it appears as the exercise of political sovereignty’ (Foucault, 2008: 2). Indeed, Foucault’s appeal to methodological regicide can just as easily be read as evidence of a serious concern with the status of sovereignty and its relation to politics than as advice to forget them.

In the first half of the lectures, Foucault emphasizes the importance of distinguishing between sovereign power and governmentality. He notes that ‘the more I have spoken about population, the more I have stopped saying “sovereign”’ (Foucault, 2007: 76). Further on, he explains that ‘government is basically much more than sovereignty, much more than reigning or ruling’ and that ‘government is very clearly distinguished from sovereignty’ (Foucault, 2007: 76). Governmentality constitutes a completely unique, completely distinct form of power that has become dominant to such an extent that it seems as though sovereignty is no longer a relevant or useful concept. Just as quickly as sovereignty disappears, however, it reappears. Despite the rigorous distinction Foucault is so invested in maintaining between them, he cautions that the gradual transformation of sovereign power into governmental power does not take place in a strict temporal succession in which one form of power abruptly ends and the next begins. He advises that ‘we should not see things as the replacement of a society of sovereignty by a society of discipline, and then of a society of disciplines by a society, say, of government’ (Foucault, 2007: 107). Sovereignty remains even as governmentality extends its reach. Yet, to the extent it remains, it remains distinct.

Contemporary commentaries on governmentality tend to focus on the distinction between sovereignty and governmentality as they appear in Foucault’s work in terms of their style of governance (Rose, 1993; Rose and Valverde, 1998; Rose et al., 2006), the objects upon which they exercise power (Burchell, 1991; Procacci, 1991; Rose and Miller, 2010; Dean, 2008), and the type of subjects that power produces (Rose, 2001; Rabinow and Rose, 2006). The expression of the problem of sovereignty within governmentality itself, however, is best seen through two further distinctions Foucault articulates that go to the essence of what sovereignty and governmentality are, in his view, and how they differ. The first of these has to do with the relation to law that each form of power maintains, and the second has to do with the mode of legitimation that each employs.

Sovereignty, Foucault explains, is a form of power that is juridical in nature; it operates through legal institutions and apparatuses; its tools are laws. ‘To achieve its aim of obedience to the laws’, sovereignty has only one set of instruments at its disposal: ‘law itself; law and sovereignty [are] absolutely united’ (Foucault, 2007: 99). Governmentality, on the other hand, exceeds the law; it uses extra-legal instruments to achieve its ends. While it does not forsake law altogether, laws are just one set of tactics among many. When it comes to governmentality, ‘law recedes … or rather law is certainly not the major instrument in the perspective of what government should be’ (Foucault, 2007: 99). While the transformation from sovereignty to governmentality also involves a qualitative shift from law in the form of the command–obedience relation to law as an administrative practice of population management (Rose and Valverde, 1998), sovereignty is the form of power whose central instrument and source of power is the law.

The second central difference between the two forms of power has to do with the way each produces its legitimacy. Foucault explores this difference by looking at the ends that each form of power pursues. The end of sovereignty, according to Foucault, is itself. The form of legitimation of sovereign power is circular and self-justifying; it continually reproduces its own power and legitimacy. This means that ‘the end of sovereignty is internal to itself and gets its instruments from itself in the form of law’ (Foucault, 2007: 99). Rather than referring to some external source of authority for its legitimacy, ‘the end of sovereignty is circular; it refers back to the exercise of sovereignty’ (Foucault, 2007: 98). Governmentality, meanwhile, aims to achieve an external end, and thus does not share sovereign power’s circular form of legitimation. According to Foucault (2007: 105), ‘population will appear above all as the final end of government. What can the end of government be? Certainly not just to govern, but to improve the condition of the population, to increase its wealth, its longevity, and its health … population … appears as the end and instrument of government’. Unlike sovereignty, governmentality does not aim at self-reproduction or self-justification, but the welfare of the population, particularly at the level of biological health.

Thus, while the sovereign form of power is not necessarily eliminated with the advent of governmentality, Foucault insists on a distinction between the unilateral exercise of authority that characterizes sovereign power and the subtle management of effects that governmentality employs. In short, Foucault describes two forms of power, each with a unique mode of legitimation and a unique relation to law. Sovereign power is circular and self-justifying – its object is itself – and at the same time it is co-extensive with the law. Governmentality goes beyond the law and has an external object – the well-being of the population.

Sovereignty at the edge: Schmitt and the decision

It is less in ignorance of the ambiguities of the concept of exception than in acute sensitivity to them that Schmitt elaborates his theory of sovereignty in the way that he does. This sensitivity manifests itself in his hesitance to locate sovereignty, or the decision on the exception, wholly outside of political order. Given that a state of exception is a complete suspension of the law, it would be easy for Schmitt to insist that the sovereign acts utterly beyond the bounds of political order. Yet, while the exceptional decision contains an extra-legal element, it never becomes entirely extra-legal; exception remains a dual phenomenon, one that operates both within and outside of normal political order. This is demonstrated in the link Schmitt makes between the exception decision and the juridical decision in the first and second chapters of Political Theology. Schmitt defines sovereignty as a power that works outside the law through its suspension – but also demonstrates the impossibility of an exceptional decision that is wholly extra-legal. He defines sovereignty as a power that works in the anomalous moment – but also demonstrates the impossibility of conceiving of a decision, even the most banal, that is not in some sense exceptional.

In the first chapter, Schmitt outlines his conception of what sovereignty is by working to locate it at a particular place in space and time. The space: the borderline or edge of political order; the time: the singular moment, the exceptional event. The sovereign thus works at the boundary of political order, capable of determining those bounds from outside of them. Exception exists as an anomalous temporal moment because at the instant of decision a rupture with the normal situation is declared and ‘the power of real life breaks through the crust of a mechanism that has become torpid by repetition’ (Schmitt, 1985: 15). This means that exception opposes itself to the normal operation of politics and law and ‘frees itself from all normative ties’ (Schmitt, 1985: 12). The regularized mechanisms of law and state administration that sustain political order are halted, and repetition is declared inadequate for the situation at hand. For Schmitt, the sovereign has the capacity to determine the existence and extent of the boundaries of political order. ‘The exception appears in its absolute form’, Schmitt (1985: 12) explains, ‘when a situation in which legal prescriptions can be valid must first be brought about’. The sovereign who decides on the exception is thus not bound by law or limited by the boundaries of political order; he produces those boundaries from without.

This particular spatiotemporal configuration of sovereignty is for Schmitt self-evident. ‘This definition of sovereignty’, he writes, ‘must be associated with a borderline case and not with routine’ (Schmitt, 1985: 5). This statement contains a confounding comparison. Schmitt contrasts the borderline with the routine. Only borderline is a spatial category; it refers to topology, to divisions between discrete objects in space; borderlines are drawn on maps, between geographic zones, between here and there. While routine is a temporal category, it refers to acts or events regularly repeated in time; routine is common, reiterated, occurs and reoccurs. Schmitt can make such an incongruous comparison without elaboration because of the certainty with which he associates borderline and exception, inside the borderline and norm. For Schmitt, sovereignty – the exception – cannot occur anywhere but at the borderline or the limit that produces political order by way of the decision that takes place in a singular moment, just as the norm cannot occur anywhere but inside that borderline, enacted not in a declaratory instant but as a regularized constellation of practices.

Concluding remarks: (Dis)locating sovereignty

The ambiguities that characterize the work of Schmitt and Foucault preclude stable accounts of political order that take the form of two competing claims: that sovereignty is manifested in an exceptional decision that takes place in a singular moment beyond the boundaries of political order; and that sovereignty is the effect of governmental practices that work within political order through everyday procedures of normalization. As particular accounts of the limits of the political, these claims appear strikingly opposed. Yet what they are in relation to sovereignty is the expression of the spatiotemporal conditions on which the principle of state sovereignty is founded. Exception and governmentality both express the ‘doubled’ character of modern political sovereignty – they operate both within and beyond the spatiotemporal boundaries of political order. Exception and governmentality thus both affirm the limits of a political order determined by reference to a distinction between the routinized normality of the inside and the singular exception on the outside. If modern state sovereignty is founded on a distinction between the spatiotemporal conditions conventionally attributed to exception and governmentality – a distinction that is expressed immanently by these concepts and that a large body of scholarship shows is unsustainable – critical accounts of that sovereignty cannot begin – or end – by affirming those distinctions. To employ governmentality and exception without attention to the way they themselves express the problem of sovereignty is to do just that. Unless exception and governmentality are used in ways that simultaneously problematize their analogous relation to the boundaries of political order, efforts to develop a critique of modern political authority through typologies of exception or of governmentality are bound to reinstantiate the spatiotemporal limits expressed by the principle of state sovereignty.

Such problematizations could follow a number of trajectories, and the following are only meant to be suggestive. First, greater attention could be paid not only to the way sovereign authority denies the aporias it embodies through the drawing of sharp lines of discrimination, but also to the way the indistinction that characterizes its boundaries is used as a strategic resource. The aporetic relation between exception and governmentality should thus not be understood as a methodological problem to be solved, but rather a relation that works, that produces differential effects. Second, this analysis reveals the way spatiotemporal assumptions are deeply engrained in contemporary accounts of sovereignty and thus suggests that critiques of sovereignty should examine the very quick associations that tend to be made between, for example, the ‘outside’ of political order and the singular moment or the ‘inside’ and routinized repetition. Finally, if Schmitt and Foucault make short work of the unity represented by the term ‘legal order’, the relation between their accounts of sovereignty indicates that any similar scission of the term ‘political order’ will not be nearly as simple. Engagement with the way exception and governmentality share an identical relation to the spatiotemporal boundaries of modern sovereignty and thus express the limits of a very particular form of political order – the sovereign state – could thus entail an exploration of the relation among sovereignty, order and politics, as well as possibilities for their de-unification. Whether critical engagement of this kind happens by way of empirical study or theoretical elaboration, exception and governmentality ought to be understood as manifestations of the problem of sovereignty, rather than as tools for its apprehension. Neither Schmitt’s nor Foucault’s account of the legitimation of sovereign authority can provide a way around the limits that such authority places on possibilities for political life. Engagement with the concepts of exception and governmentality that recognize this problem are no doubt necessary to discern modes of critical thought that neither depend on nor legitimate those limits.