1. Aesthetic and Political Exceptionalism

WHAT IS AESTHETIC EXCEPTIONALISM? The phrase sounds ugly and difficult, like a piece of theory jargon that ought to be assigned to the trash heap of contemporary thought. However, many are no doubt familiar with the beliefs I would associate with this notion. I am thinking for example of Alain Badiou, who in his book The Century understands the effect of art as “forcing a thinking to declare, in its area of concern, the state of exception”[1]—and he values this effect positively. When Steven Corcoran characterizes the connection between aesthetics and politics in Jacques Rancière’s thought, he suggests (but I will have to nuance this suggestion later) that in Rancière “art and politics can be understood, such that their specificity is seen to reside in their contingent suspension of the rules governing normal experience.”[2] Art and politics find each other in the fact that both depend on “an innovative leap from the logic that ordinarily governs human situations.”[3] Art and politics find each other, it seems, in their shared exceptionality.

Where have we heard this before? In an early response to Badiou’s book Being and Event, Jean-François Lyotard suggests that Badiou’s theory of the subject strangely “mirrors” the twentieth-century German constitutional scholar Carl Schmitt’s theory of the sovereign as he who decides on the state of exception.[4] In the first chapter of his book Political Theology: Four Chapters on the Concept of Sovereignty,[5] Schmitt declares that “sovereign is he who decides on the exception”[6] (in the German original, “Souverän ist, wer über den Ausnahmezustand entscheidet”[7]). The stand-alone opening sentence reads like a sovereign decision itself. In it, Schmitt decides, as a sovereign author, who is sovereign. In English, the sentence is suspended between the words “sovereign” and “exception,” which are the most relevant terms here. In German, the language is more precise (exception is “state of exception” in the original German) and the sentence is now suspended between “sovereign” and “decision,” which foregrounds the decision rather than the state of exception.

The project of Schmitt’s chapter is, evidently, to define sovereignty. Some would, no doubt, tend to look at the normal situation to do so: who guarantees the rule of law? Surely, that is the sovereign. But Schmitt’s answer is different. If one wants to find out in any given situation who is sovereign, one must find out who decides on the state of exception. This is why sovereignty is, in his view, a borderline concept: it can only be understood from the extreme limit (“extremus necessitatis casus,” an extreme case of necessity[8]). For Schmitt, the exception comes first (“the rule . . . derives only from the exception”); it “proves everything.” Understood in this way, the exception has something “vital” [15] to it: “In the exception,” Schmitt writes with echoes of Nietzsche, “the power of real life breaks through the crust of a mechanism that has become torpid by repetition” (15)[9] In order to understand what that mechanism is, one has to understand what happens in the state of exception.

The situation that the phrase “state of exception” refers to is very particular: in it, the law temporarily suspends itself in order to enable sovereign power to maintain order (and protect the law). This is not a situation of “anarchy and chaos” (12) as Schmitt is careful to point out. It is not a situation in which the law is destroyed.[10] Rather, we are talking about a constitutionally guaranteed temporary suspension of the constitution (“According to article 48 of the German constitution of 1919 . . .” [15]), a situation in which the law recedes but order is maintained. One could call this “extraordinary order” and distinguish it from what Schmitt suggests to be “ordinary” order. The state of exception enables him to point to the phrase “legal order” to explain that in a state of exception, the two terms that make up that phrase get forced apart, are “dissolved into independent notions” (12) with the law receding to a minimum while order (absolute order, in this case) is maintained. It is in such situations, Schmitt argues, that sovereign power is revealed. Schmitt does not tell us on what criteria the sovereign decides on the state of exception. He does not have the audacity to lay this out. This can only be decided by the sovereign, based on the sovereign’s “competency.” What is certain, however, is that the state of exception is declared in name of “public safety and order, le salut public [public well-being]” (6)

Schmitt argues that the decision on the state of exception has always been at the core of sovereignty. He finds it in Bodin, for example, in the sixteenth century, and while “the vivid awareness of the meaning of the exception” (14) is maintained in the seventeenth century, Schmitt notes that by the eighteenth it has gone missing: “the exception was something incommensurable to John Locke’s doctrine of the constitutional state and the rationalist 18th century” (13–14); “emergency law was no law at all for Kant” (14). But, Schmitt argues, “it should be of interest to the rationalist that the legal system itself can anticipate the exception and can ‘suspend itself’”: “from where does the law obtain this force, and how is it logically possible that a norm is valid except for one concrete case that it cannot factually determine in any definitive manner?” (14).

Schmitt is telling his readers that the key activity of sovereign power is to decide on the temporary suspension of the law in the state of exception. To do so, sovereignty takes up a peculiar position inside/outside of the law (“although [the sovereign] stands outside . . . he nevertheless belongs” [7]). What makes sovereignty? The state of exception. What makes the state of exception? The law, which includes the sovereign possibility of its own suspension—a kind of “violence” (9)—in cases that the law could not possibly anticipate (future situations, as Schmitt makes clear: “the precise details of an emergency cannot be anticipated” [6]). In Schmitt’s typically circular reasoning, the exception makes the sovereign, the sovereign the exception.

Taking their cue from Lyotard, Peter Hallward, Nina Power, and Colin Wright have all considered the similarities and differences between Schmitt and Badiou. Indeed, the connection between Schmitt and Rancière has received some discussion as well. Hallward follows Lyotard in noting the resonances between Badiou and Schmitt but very quickly discards the issue.[11] That a more careful elaboration is needed becomes quite clear in Nina Power’s consideration of these same resonances, which she is more willing to acknowledge even though she clearly (and rightly) distinguishes between Badiou and Schmitt’s “political aims.”[12] It is Colin Wright who has gone the furthest on this count, arguing—or rather, as he puts it, “believing”—that “the most promising theoretical tool available today for thinking beyond and against the logic of the exception [which Wright associates with Schmitt] . . . is Alain Badiou’s philosophy of the event.”[13] The problem is that Wright is rather too good at drawing out the “proximities” between Schmitt and Badiou, which amount to four pages of his article—the same length as his discussion of their “differences.” Whereas he discusses five similarities between Schmitt and Badiou, the differences really only amount to one. Finally, it is Panu Minkkinen who has argued that Rancière is all too quick to dismiss the connections of his work to Schmitt.[14]

Given the echoes of Schmitt in those thinkers’ aesthetic theories, it is worth noting legal scholar Paul Kahn’s observation in a book about political theology that Schmitt’s definition of sovereignty links sovereignty both to God and to the artist.[15] The tie to God is probably fairly straightforward: Schmitt’s theory of sovereignty famously states that “all significant concepts of the modern theory of the state are secularized theological concepts.”[16] Thus, Schmitt argues that the exception—a situation in which the normal rule of law is suspended—is a secularized version of the theological notion of the miracle (walking on water, turning water into wine, and so on). The sovereign, in this configuration, is a secularized version of God, or at least of God incarnated into his son Jesus.

What about the connection of the sovereign to the artist? This is maybe less obvious, unless one considers the simple fact that the sovereign creates to be enough evidence already for this connection—and there definitely is something sovereign and theological to the creating artist. But one finds echoes of precisely this in Badiou, for whom art does something that is quite similar to what the sovereign does, i.e. it declares a state of exception (in Badiou’s words) whereas the sovereign decides the state of exception (in Schmitt’s words). When Corcoran characterizes the connection between aesthetics and politics in Rancière by focusing on art’s “contingent suspension of the rules governing normal experience,” that language could just as well have been taken from Schmitt’s theory of sovereignty. Particularly striking is Corcoran’s use of the verb “suspend”: that’s the key activity of sovereignty, as Schmitt sees it—suspending the law.[17]

There are differences, of course, for example when it comes to the goals: in Schmitt, the suspension of the law happens in an attempt to preserve it. In Rancière, the suspension happens to accomplish the law’s transformation—which is obviously different from what one finds in Schmitt. Given that Schmitt became a Nazi and that Rancière critically defends democracy, one might want to distinguish (I understate my claim) between a fascist and a democratic politics of exception, and in the case of Badiou perhaps also a communist politics of the exception.

To make these distinctions, one would have to ask in what way, to what extent, the politics of art, and specifically the exceptionalist “suspension” that art often prides itself on, is any different from the exceptionalist politics of Schmittian sovereignty. Put a bit more subversively: in what way might the unreflexive attachment to an exceptionalist politics-of-art-that-suspends, often risk being a secret promotional campaign—in what we like to imagine as the critical and progressive sphere of the arts—for the Schmittian politics of the state of exception that many who are active in the arts would, politically, claim to be against? And if art’s exceptionalism is not that, how might it differ from the exceptionalism we find in Schmitt? If art’s politics of exceptionalism is a democratic politics, how is that the case?

I should add that I focus here on Schmitt as a theorist of the law’s suspension, which is the reading that he has most commonly received. But there are others—I am thinking of Andreas Kalyvas in particular—who have sought to draw out the normative dimension of his work, namely his concomitant interest in the making of law rather than the law’s suspension, and indeed his contributions as a democratic theorist.[18] In a democracy, Schmitt would likely have argued, it is the people who are sovereign and hold the political power to suspend the law. Schmitt would then be considered to insist on the political power of the people in the democratic liberal constitutional regime whose depoliticization he drew into question. This is part of the reason his work has found resonance with scholars like Chantal Mouffe, to whom I will turn in the next chapter. However, it is difficult to maintain such a reading of Schmitt as a democratic theorist without letting it be eclipsed by the rise of National Socialism and the normalization of the state of exception that it brought.

Before I move on, let me also note the complexity of the relation of the political to the aesthetic in Schmitt’s work, and the reception it has received. Neil Levi lays this out brilliantly in an article titled “Carl Schmitt and the Question of the Aesthetic.”[19] If I am suggesting that the aesthetic exceptionalisms one finds for example in Badiou and in Rancière take their echo from Schmitt, it is worth taking into consideration for example Richard Wolin’s criticism of Schmitt, his charge that Schmitt precisely “aestheticizes” politics (which, via Walter Benjamin’s famous analysis, can lead to the charge of “fascism”). Schmitt does so, Wolin claims, because he focuses on “rupture, discontinuity, and shock, which Wolin claims as ‘aesthetic values.’”[20] The exception is aesthetic; when Schmitt proposes a concept of the political that revolves around the exception, he aestheticizes politics. It is not so much that contemporary theories of the aesthetic take after Schmitt. Rather, there was already an aesthetics at work in Schmitt. And indeed, before Wolin, Peter Bürger had argued that “Schmitt’s ‘exception’ is the political equivalent of the Kantian aesthetic, which resists the categories of the understanding, and that the sovereign who freely decides is the political equivalent of the Kantian genius who gives rules to himself.”[21]

As Levi points out,[22] not all scholars agree with this: Andrew Norris and the already-mentioned Andreas Kalyvas have challenged this reading, pointing out that Schmitt himself wanted to keep the political and the aesthetic separate, and taking him at his word for this.

One other curious element that Levi notes—and this can be tied to Bürger’s point about the Kantian aesthetic—is Schmitt’s association of the aesthetic, and in particular aesthetic autonomy (which he also glosses as the idea that “artistic genius is sovereign”), with liberalism.[23] It is not so much the association of the aesthetic with liberalism that surprises, but the association of autonomy—tied here to sovereignty[24]—with liberalism. As Levi observes, “the diction practically invites us to consider structural similarities between the autonomous [sovereign] realms of the aesthetic and the political.”[25] Schmitt will have none of it, and neither will many of Schmitt’s readers. It is Levi, however, who insightfully draws out such similarities as well as differences, thus providing historical context and analytical depth to the relations between Schmitt’s political exceptionalism and what I call aesthetic exceptionalism.