Exception and governmentality in the critique of sovereignty

Abstract

This article investigates the relation between exception and governmentality in the critique of sovereignty. It argues that the problem of sovereignty is not only expressed between the accounts of sovereignty that exception and governmentality articulate, but also within each of those accounts. Taking Michel Foucault and Carl Schmitt as the paradigmatic theorists of governmentality and exception, respectively, this article engages in close readings of the texts in which these concepts are most thoroughly elaborated: Security, Territory, Population and Political Theology. These readings demonstrate that the spatiotemporal expression of the problem of sovereignty within exception and governmentality renders these concepts indistinguishable from one another in terms of their relation to the boundaries of political order. Schmitt and Foucault’s accounts of sovereignty should thus not be read as opposites, but as expressions of the limits of modern political authority. Efforts to develop a critique of sovereignty through typologies of exception or governmentality are bound to reinstantiate the spatiotemporal limits expressed by the principle of state sovereignty.

Keywords

Carl Schmitt exception governmentality Michel Foucault 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.

Governmentality and raison d’état

The concepts of raison d’état and coup d’etat – both of which Foucault describes as essential to governmentality – trouble the borders that distinguish sovereignty from governmentality. Raison d’état troubles Foucault’s description of governmentality, while coup d’état troubles his definition of sovereign power. When the changes that these two concepts bring to understandings of sovereignty and governmentality are acknowledged, the line separating one from the other is no longer discernible. Governmentality and raison d’état are intimately associated with one another. According to Foucault (1991: 96), ‘the art of government finds its first form of crystallization, organized round the theme of reason of state [raison d’état]’. The development of governmentality marks a new concern with the government of the state as a whole rather than with the person of the sovereign. It is a mode of reasoning that sets out the aims, ends and principles of operation of the art of government; it is the animating logic of governmentality.

The characteristics of raison d’état that Foucault describes indicate that, far from locating its object outside itself, raison d’état produces itself for itself; its legitimation is circular. First, raison d’état does not ‘[refer] to anything other than the state itself. There is no reference to a natural order … or even a divine order’ (Foucault, 2007: 257). Raison d’état trains its gaze inward. Second, Foucault (2007: 257) describes it as ‘the very essence of the state’ and the knowledge necessary to comply with this essence. To perform its function as a form of reason that will allow the state to sustain itself and preserve its existence and integrity, raison d’état replaces the question of the origin of sovereignty with the question of the self-justification of government. It is, as Foucault (2007: 246) puts it, an attempt ‘to think the form of government rationality for itself’. No longer content to focus on the sovereign himself as a political guide, raison d’état looks to the state for its own principles of operation.

This conclusion casts doubt on Foucault’s description of a governmentality that looks outside itself for its end. It is the move away from a transcendent source of legitimation in the late 16th century that results in the development of raison d’état. The sovereign becomes detached from divinity and from nature and is given a new function: ‘his task is absolutely specific: it consists in governing, and its model is found neither in God nor in nature’ (Foucault, 2007: 236). In the absence of a transcendent model, sovereign authority begins to require its own source of justification and a means of identifying the principles by which it will operate: this is raison d’état. In Foucault’s (2007: 238) words, raison d’état is ‘a type of rationality that will allow the maintenance and preservation of the state once it has been founded, in its daily functioning, in its everyday management’. Thus, to the extent that raison d’état is an essential animating feature of the ‘art of government’, the concept poses a significant challenge to Foucault’s claim that governmentality has an external object. The way he describes it, raison d’état continually refers back to itself; it is the essence of the state and aims at nothing but its perpetuation. In other words, on the model of raison d’état, the end of the art of government is government.

As Hobbes’ paradigmatic account of sovereignty indicates, it is at the moment when sovereignty detaches itself from a natural or divine order that it requires an ‘art of government’ to produce its own legitimation. This is something Foucault recognizes, claiming that the very problematic of governmentality is initiated by Hobbes, who ‘was aiming to discover … the ruling principles of the art of government’ (Foucault, 1991: 98). Given raison d’état, the mode of legitimation of governmentality, while employing different terms of reference, remains circular and self-justifying. The immanent, self-justificatory character of governmentality means that it cannot be limited to within an already constituted political order – governmentality must also produce that order. Like sovereignty, it must produce its own conditions of possibility and thus does not come into being ‘once the state has been founded’, but works beyond the realm of constituted political order. One way it exceeds this realm is shown in Foucault’s description of the coup d’état.

Sovereignty and the coup d’état

The discourses Foucault examines contain a particular definition of the coup d’etat that differs from its contemporary usage. Rather than the seizure of the state from one group of people by another, the coup d’état is an act carried out by the state that consists of ‘a suspension of, a temporary departure from, law and legality. The coup d’état goes beyond ordinary law … [it is] an action retaining no order or form of justice’ (Foucault, 2007: 261). Such acts are undertaken by the sovereign in emergency situations when the very existence of the state is at stake. In Foucault’s (2007: 262) words, ‘the coup d’état is the state acting of itself on itself, swiftly, immediately, without rule, with urgency and necessity, and dramatically … it is the self-manifestation of the state itself’. Despite the essential link between law and sovereignty that Foucault emphasizes, his account also reveals a sovereignty that does indeed go beyond the law. This is in line with his description of a sovereign power whose legitimation is circular, as this circularity requires a going beyond the law and introduces a phenomenon not unlike exception.

While Roberto Nigro (2014: 133) argues that ‘the peculiarity of Foucault’s interpretation of the coup d’état resides precisely in the fact that he does not give an account of it in terms of the decisional power of the sovereign’, in my view Foucault does precisely this. In Foucault’s account, exception and coup d’état share identical characteristics: they are executed by the sovereign out of necessity, they involve going beyond the law, and they are instances in which the state acts upon itself. Just as the coup d’état is enacted out of ‘necessity, urgency, the need to save the state itself’ (Foucault, 2007: 262), the exception, Schmitt (1985: 6) writes, is ‘characterized as a case of extreme peril, a danger to the existence of the state’. Just as the coup d’état consists of a ‘suspension’ of the law, ‘what characterizes the exception is principally unlimited authority, which means the suspension of the entire existing order’ (Schmitt, 1985: 12). And just as the coup d’état represents the state ‘acting of itself on itself’ (Foucault, 2007: 262) – that is, producing its own conditions of possibility – so the exception ‘appears in its abstract form when a situation in which legal prescriptions can be valid must first be brought about’ (Schmitt, 1985: 13). The exception sets the bounds of the political order in which sovereignty can be enacted. In Jens Bartelson’s (1997: 326) terms,

a coup is a way to conquer the locus of sovereignty or to extend its scope with reference to exceptional circumstances … a coup constitutes an empirical instance of the decisionist definition of sovereignty that equates it with the power to decide when an exception is beforehand and thus with an authority to suspend the law.

The coup d’état, as Foucault describes it, is thus a manifestation of sovereignty constituted by the ability to decide on the exception.

Thus, in the midst of Foucault’s most detailed elaboration of governmentality appears a phenomenon identical to that of exception. Moreover, this phenomenon is not discontinuous with governmentality, but is, according to Foucault, integral to its operation. Like exception and governmentality themselves, the coup d’état maintains an ambiguous relationship to political order and acts both as the source and the product of sovereign power. Coup d’état is exceptional because it breaks with legal order, but maintains a link with that order because it is carried out by an already constituted sovereignty. Nigro’s (2014: 134) claim that ‘the classical coup d’état seems more like a practice of government, which tends to constitute its object – the state – instead of presupposing its existence as a fact’ is thus exemplary of the tendency of analyses of the relation between exception and governmentality to privilege one term of the duality over the other. If the distinction between exception and governmentality depends on keeping them on either side of the borderline between political order and its outside, then a clear distinction between them cannot be made.

While it could be claimed that while raison d’état and coup d’état undermine Foucault’s initial definitions of sovereignty and governmentality, they only affirm the distinction between them, as raison d’état remains proper to governmentality, while coup d’état takes place under the rubric of sovereignty. Foucault (2007: 262) insists that the act of coup d’état is essential to the raison d’état that animates governmentality:

The coup d’état does not break with raison d’état. It is an element, an event, a way of doing things that, as something that breaches the laws, or at any rate does not submit to the laws, falls entirely within the general horizon, the general form of raison d’état.

This is because governmentality, while employing laws as a set of tactics, does not limit itself to them. As Foucault (2007: 262) puts it, raison d’état ‘yields to [laws] and respects them insofar as … it posits them as an element in its own game … however, there will be times when raison d’état can no longer make use of these laws and … must of necessity free itself from them’. In short, ‘raison d’état is always exceptional in relation to public, particular, and fundamental laws’ (Foucault, 2007: 262, emphasis added). So, at the heart of raison d’état lies a self-referential sovereign that acts beyond the law. Governmentality and sovereignty, as Foucault describes them, thus have an analogous relation to legal order. Both forms of power make use of the law, but also work outside it and can free themselves of its constraints when necessary. Not only that, the dramatic, extra-legal act of the sovereign state, the coup d’état, is not an expression of the sovereign form of power, but rather of the raison d’état that is the organizing logic of governmentality.

‘The continuous act of the creation of the republic’: Temporality and governmentality

In Security, Territory, Population, governmentality is described both in terms of a temporality of preservation, of routine and repetition, and in terms of a temporality of founding, of creation and production, in a way that exemplifies the tension between exception and governmentality. According to Foucault, raison d’etat has a particular temporal orientation; it is ‘conservative’ or ‘protective’: ‘what is involved is essentially identifying what is necessary and sufficient for the state to exist and maintain itself’ (Foucault, 2007: 258). Raison d’état is therefore an agent of preservation; it conserves the political order that has already been founded. Yet, as Foucault tells it, this governmentality grounded on raison d’état is not only conservative. In fact, raison d’état reflects ‘an indefinite temporality, the temporality of a government that is both never-ending and conservative’ (Foucault, 2007: 259). As such, it posits no specific point of origin and no specific telos. Rather, it consists of ‘the continuous act of the creation of the republic’ (Foucault, 2007: 259). The preservation carried out by raison d’état, in this sense, is done through continual refounding, the regular re-creation of the conditions of possibility of the sovereign state. It thus aligns with the descriptions of the temporality of sovereignty that Foucault describes elsewhere in his work. As modern political sovereignty was consolidated in the 19th century, a new temporal orientation emerged, one that centred on the present. There is, Foucault (2003: 227) writes, an ‘inversion of the value of the present in historical and political discourse’, which means that ‘the fundamental moment is no longer the origin … it is, on the contrary, the present’. This suggests the type of temporality associated with raison d’état, a temporality whose valorization of the present cannot distinguish an initial historical moment of founding from a later moment of preservation. A temporality of the present expresses the indistinction between founding and preservation in the temporality of governmentality: a non-teleological, continuous (re)production of itself.

Foucault, at times, recognizes this dual character of governmentality. ‘Governmentality’, he writes, ‘is at once internal and external to the state, since it is the tactics of government which makes possible the continual definition and redefinition of what is within the competence of the state and what is not’ (Foucault, 1991: 103). Like sovereignty, governmentality sets the bounds of its own sphere of operation. This acknowledgement of the ‘doubled’ character of governmentality casts doubt on Foucault’s (2007: 238) claim during the lectures that governmentality only comes into force ‘once [the state] has been founded’. On this later account, governmental practices not only work within a given political order, but also work to determine the limits of that order. If governmentality does not only function ‘once the state has been founded’, but also works to found it, it cannot be kept on either side of the line dividing political order from its outside. Like the sovereign form of power Foucault is so concerned to distance himself from, and like exception, governmentality produces the particular order within which it operates.

Given this reading of Foucault’s articulation of sovereignty and governmentality, the distinction between the two forms of power is difficult to sustain. While originally it appeared that, on the one hand, there was a self-justifying sovereignty coextensive with the law and, on the other, an extra-legal governmentality with an external source of legitimation, it now seems possible to uncover in Foucault’s lectures a self-justifying sovereignty that exists beyond (and within) the law and a self-justifying governmentality that exists beyond (and within) the law. What Security, Territory, Population reveals is the profound ambiguity that exists in the distinction between governmental practices that exist beyond juridical sovereignty and a still-present sovereign that exists beyond the law.

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.

Relocation: The structure of decision

Whereas initially Schmitt describes sovereignty as a product of the exceptional decision that suspends the entire legal order, his analysis of the structure of legal decision shows that the exceptional power of sovereignty is not limited to the singular moment. For the problem of sovereignty and its constitutive structure is not simply a matter of the spectacular declaration of exception, but in fact resides in the relation between law and its enforcement, and thus in the structure of decision itself. In other words, the relation between exception and decision is not simply that a state of exception is instituted by a decision, but rather that the structure of decision and that of exception are identical. Schmitt says as much in the title of Chapter Two, ‘The Problem of Sovereignty as the Problem of the Legal Form of the Decision’. For Schmitt, the decisive question is the relation between law and what he calls ‘actual power’, the force that animates law but is not reducible to it. This problem, writes Schmitt (1985: 23), ‘lies precisely in … [the] act of ascertaining’, that is, in the act of decision, decision that necessarily interprets and renders judgement. This is the function of exception – to decide on law. In this sense, the exceptional and the normal decision cannot be distinguished from one another in form, that is, in terms of their relation to legal order, but only in terms of degree or scale.

While the exceptional decision is notable because it is not derived from law – it ‘emanates from nothingness’, as Schmitt (1985: 32) puts it – in his analysis of the juridical decision, Schmitt reveals this to be the case for every sovereign decision, no matter how banal. He claims that ‘every concrete juristic decision contains a moment of indifference from the perspective of content, because the juristic deduction is not traceable in the last detail to its premises and because the circumstance that requires a decision remains an independently determining moment’ (Schmitt, 1985: 32, emphasis added). As Walter Benjamin (1978: 287) points out regarding the police, the enforcement of law requires decision because no two ‘legal situations’ are alike. Decision is always necessary because ‘no norm … interprets and applies, protects or guards itself; nothing that is normatively valid enforces itself’ (Schmitt, 2004: 54). This is what William Scheuerman terms Schmitt’s theory of ‘legal indeterminacy’, the idea that ‘law includes a moment of normatively unregulated facticity, of pure power or willfulness’ (Scheuerman, 1999: 26, emphasis in original). Put simply, the question ‘Who decides?’ does not pose itself only in regard to emergency or existential threat, but at every instance of decision. While the difference between the decision on the exception and juridical decision may lie in whether it is a particular law rather than the entire legal order that is suspended, in both cases the sovereign responds to a particular ‘situation’ for which the simple application of a norm is impossible.

Though Scheuerman focuses on the connections between legal indeterminacy and Schmitt’s fascism, Schmitt’s analysis does not lend itself to the claim of a generalized extra-legality in which sovereign actors make decisions completely independently of law, rule and norm. Rather, Political Theology is characterized by an oscillation between an exception that appears wholly extra-legal and a hesitance to locate sovereignty wholly outside of political order. For example, Schmitt (1985: 7) asserts that ‘although [the sovereign] stands outside the normally valid legal system, he nevertheless belongs to it, for it is he who must decide whether the constitution must be suspended in its entirety’. The exceptional decision, like juridical decision, never completely detaches itself from law, because it must refer itself to law, even if that reference is in the form of a suspension. While exception ‘is that which cannot be subsumed; it defies general codification’, it also ‘simultaneously reveals a juristic element – the decision in absolute purity’ (Schmitt, 1985: 13). Thus, although exception appears as ‘new and alien’ (Schmitt, 1985: 31) in relation to the norm, it never attains complete autonomy from law, rule or norm, but rather retains a relation to the legal order it has the capacity to institute and suspend. 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. When decision can neither ‘emanate from nothingness’ nor simply adhere to a calculable programme, the grounds upon which exceptional and normal decisions are distinguished from one another disappear.

While Galli (2010), whose work is part of a growing literature that reconsiders Schmitt’s theory of sovereignty in relation to space and geography (see Aradau, 2007; Legg, 2011), suggests that Schmitt is inapplicable to a world no longer bound by the political categories of modernity, several scholars have reworked Schmitt’s theory of sovereignty by noting that exception need not exclude a sovereignty that is more diffuse than the statist decisionism he advocates. This claim is borne out by investigations of the relation between the minor practices of citizens and bureaucrats and the production of sovereign exceptionalism. Johns, for example, attributes the excess of rule and regulation at the Guantánamo Bay military prison to an effort to ‘domesticate’ the exception, as regulation meant to eliminate the element of incalculability and unpredictability inherent in exception. In this sense, she explains, ‘one could identify the absence of precodification characteristic of the exception with immersion in the contingencies of the social and the ubiquity of power’ (Johns, 2005: 632). This allows the concept of exception access to the everyday practices most often understood as constituting the norm. She concludes that ‘it is almost impossible not to conceive – as both political and exceptional – a much broader range of decisions, approached by a much broader range of agents … than those which Schmitt entertained as such’ (Johns, 2005: 632). Roxanne Lynn Doty’s analysis suggests that civilian border patrols are an example of such agents, and should thus be understood using a more diffuse conception of Schmittian decisionism. The practices of border vigilantes in the USA reveal that decisions on what counts as normal politics and on who is the enemy are not only taken ‘from above’ by a unified sovereign, but ‘can arise in the remotest of places and by the seemingly most insignificant agents, at a lonely desert border crossing, at a city street corner where day labourers gather in the hope of finding work’ (Doty, 2007: 129). On this view, the concept of exception lends itself to an analysis of the ‘infinitesimal mechanisms’, as Foucault calls them, of social and political life that constantly escape the ambit of established law.

Schmitt himself employs his definition of sovereignty in a manner that acknowledges the potential for its diffusion in his later writings on the Weimar constitution. In Legality and Legitimacy, Schmitt’s description of the extra-legal capacity of the sovereign is not limited to the exceptional declaration. He makes reference to the ‘additional political surplus apart from the power that is merely normative and legal’ that a government enjoys (Schmitt, 2004: 32). The neutrality of the legal apparatus of the state is corrupted by the advantage that the party in power has to make decisions not just through the law, but about the law. This ‘supralegal premium’, Schmitt (2004: 32) explains, evoking his definition of sovereignty, ‘is relatively calculable in peaceful and normal times, but in abnormal times it is entirely incalculable and unpredictable’. While the use of the premium may differ in intensity and predictability depending on the situation, the relation between authority and law that produces the premium remains the same: decisionmakers in government have a power beyond that allotted to them by law, a power that cannot be reduced to calculable rule. While Schmitt claims that this ‘premium’ is ‘bound directly to the momentary situation’, and is often used in times of emergency, he also attributes to it the advantage of ‘the presumption of legality’ and of ‘directly executable’ commands (Schmitt, 2004: 32), which suggests that the extra-legal decisionist power of the dominant party works with the frequency of routine decision as well as the rarity of the exceptional case.

The problem of decision, then, cannot be limited solely to the legal sphere, to the interpretation of the judge, but extends out to the furthest reaches of bureaucratic procedure, administrative process and social life. While technical-administrative decisions may differ in degree from the type of extraordinary decisions made by the sovereign in a state of emergency, they do not differ in form from these decisions. As Scheuerman points out, what gives Schmitt’s critique of liberalism and legal positivism such force is thus not his observation that in times of emergency the sovereign is capable of breaking with the law, but rather his insight that at every instance of law enforcement or juridical decision the law is in some sense broken with. Once this is acknowledged, Schmitt’s extra-legal sovereign is not only the grand declarer of emergency or the spectacle of fearsome might, but rather a diffuse and subtle power that is dispersed among the intricate, mobile spaces of the labyrinthine juridical-administrative systems of modern polities, a power that resides in the diffuse and variegated processes of interpretation and judgement that take place continually across the landscapes of legal and political order. A sovereignty that works in this way becomes far more difficult to differentiate from the assemblage of practices that make up governmental regimes than a sovereignty manifested in the exceptional decision enacted in a singular moment. Schmitt claims that sovereignty is associated with the borderline and not with routine. A more apt formulation might be that routine is located at the borderlines, and the drawing of borderlines routine.

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.

Footnotes

Acknowledgements

I would like to thank the Cultural, Social & Political Thought Program at the University of Victoria, Vancouver Island for the opportunity to present early versions of parts of this work, as well as Guillaume Filion, three anonymous reviewers and the editors of Security Dialogue for helpful comments on earlier drafts.

Funding

This research was supported by the Social Sciences and Humanities Research Council of Canada.

Regan Burles is a PhD student in the Department of Political Science at the University of Victoria on Vancouver Island. Email: rburles@uvic.ca.

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