what we lose with 'the partisan'

Schmitt makes a very interesting point around p. 28 of the English translation of "Theory of the Partisan." First there was the irresistible temptation experienced by established European powers to use 'partisans' for their wars of national salvation. He refers to Bismarck's comments about wanting to use "any weapon" made available by new-found national feeling against France and the Hapsburg monarchy. The Prussian Landsturm edict, signed by the Prussian king in 1813, ordered all Prussian citizens to use every means to oppose the French and demanded that citizens refuse to cooperate with any measures, no matter how banal, of the occupiers (29). But at the same time established armies treated 'irregular' troops with great harshness. When armies fought, everyone wore uniforms, carried weapons openly, and you knew who who was. The beneficial aspect of this, Schmitt points out, was that a sharp limit was established concerning who war was directed at. If a soldier from an invading army came upon a civilian in a town -- someone not dressed as a soldier, not carrying a gun or sword -- the soldier didn't have to worry that the 'citizen' might jump up and stab him. The citizen, likewise, did not have to worry that the soldier would regard her as a menace. The result is a barrier against total war. This distinction held up, with exceptions, through World War I.

But by World War II it was clear this attempt at circumscribing combattants had suffered decay. In this environment 'the policeman' had a near-impossible task. Even an invading power is supposed to guarantee security. This is done by charging the police -- perhaps even the police of the conqeured regime -- to do the job. But then there are partisans running around blowing up the installations and personnel of the occupier. Does the policeman arrest them? collaborate with them (18-19)? An impossible job.

It's fascinating, too, to read about the attempts of world powers to 'regularize' the status of irregular fighters through treaties. But "normative regulation [is] judicially impossible" (25).

On p. 30 Schmitt points to one 'normative' consequence of edicts like the Landsturm. That is that the irregular kind of activity characteristic of the partisan -- who hides guns, wears whatever uniform suits his purpose or none at all, and works in secret -- is put into motion in the service of national defense. There's something about a foreign power invading a country -- in the age of nationalism, anyway -- that legitimates the irregular activity of the partisan. And after World War II, there was a lot of debate whether or not irregular activity of this kind was allowable. After World War II, the larger, more established powers, via the Geneva Conventions of 1949 (18), tried to come up with rules that sharply limited the 'rights' of local populations they might invade to resist. Smaller countries, such as Belgium, who feared being invaded, wanted more rights for partisans and more protections for the civilian populations that enabled them. The result of this kind of thinking was that there was at least some kind of legitimacy for the 'partisan' who fights in defense of a nation against an aggressive power.

But there is another kind of partisan who does not fight in defense of a nation, per se; does not fight to defend his 'land' or his 'home.' These are international terrorists, or international 'partisans' if we want a neutral term. They go anywhere. Italian anarchists committed a series of high-profile assassinations throughout Europe in the early 1900s. These people share a lot of similarities with the partisan. They hide their arms, they don't wear uniforms, they pretend to like you, and then they shoot you six times while you're having breakfast. But this activity is utterly separated off from 'defense of the motherland' and so on. There has never been an attempt (reported by Schmitt, anyway) to legitimize the acts of these 'partisans without a home.' And the thought that occurred to me when I read this was that one harmful effect of President Bush's war on terror is that it has wrongly conflated the two kinds of partisan: fighting against a local population in Iraq that is defending itself against invasion is the same as going after Osama bin Laden; likewise, fighting against American occupation troops is just like flying a plane into the World Trade Center: both acts are just as much 'terrorist.' That is the Bush administration's 'theoretical' contribution to the theory of war as far as it deals with 'irregular' fighters.

Comments

[John S. Ransom]

Nate writes:

I don't mean to be difficult here but I just don't see it, beyond "terrorist" and "partisan" indicating only whether or not the speaker supports or agrees with the people in question. [end Nate]

Nate, you're not being difficult, the problem (the issue, the topic we're discussing) is being difficult. Is there no way to distinguish partisan from terrorist? The first problem I have with your approach (which may be the right one!) is that with it there's no objection that can be made to the United States equating the people flying planes into the twin towers and those setting roadside bombs in Iraq, calling both 'terrorists.' First of all we have to note that we -- that is, you and I -- *do* make such a distinction. You said at the beginning of your note that you were opposed to the people who flew the planes into the towers. But you, I, and most people support resistance fighters in the Warsaw ghetto. So we've made the distinction, now we need to do the intellectual work needed to identify what that distinction consists of.

How about this: a terrorist is someone employing the 'irregular' means we are familiar with from Schmitt with no or very few organic ties to the community in which she acts. Zarqawi would, then, be a terrorist; the individuals who flew the planes into the towers also. I may have to put the Italian anarchists in here as well. And I may not like that, but maybe it's worth it to get some clarity on the term. People putting bombs on the roadside in opposition to U.S. (or German or French or whoever) occupation cannot be called terrorists because their activity is in organic contact with the communities they live in. They are acting with some kind of community consensus behind them, even if not unanimous or even majoritarian.

In my view the mere presence of ambiguity -- which I certainly don't deny exists with my distinction -- does not eliminate it from consideration. (Too much ambiguity, though, would kill it.) No attempt to distinguish such emotion-laden terms as terrorist and partisan is going to be definitive.

So. I'm glad I solved that problem. Now we can move on to something else. I feel like some ping pong and a beer.

[John S. Ransom]

s0metim3s writes:

Legitimations of violence on the grounds that it's against occupation are slippery, at best. How does one define and claim indigeneity? How does one distinguish nativist legitimation from that which legitimates the violence of, say, pogroms? [end excerpt]

It doesn't seem so slippery to me! I don't think it felt slippery to the French, Polish, or Vietnamese resistance. We have to distinguish between what is difficult to clear up conceptually and what things are like 'in the world' where often decisions about how something like this works seem very clear. We all know that the Bush administration is having some trouble keeping up the label 'terrorist' for homegrown resistance to occupation. The Iraqis are thinking of giving amnesty to 'native' fighters against the U.S. (as distinguished from foreigners who do the same acts). Well, why? "What's the difference?" But there is a difference and I think it's a mistake to dismiss it.

[John S. Ransom]

On the topic of citizenship, Gabbriel Sanchez writes:

It's a legal category which, in the post-WWII era, carries with it certain legal rights and obligations. It is not a natural category, nor is it a philosophical one. (At least, not anymore.) [end excerpt]

But isn't that the positivist position, against which there are ranged both naturalist and philosophic perspectives? Isn't this a very old debate in legal thought? Anyone who is interested in a brief overview can put "philosophy of law" into Wikpedia (or even just into google probably) and you'll get a brief overview of these perspectives. It's here:

http://en.wikipedia.org/wiki/Philosophy_of_law

There's a famous case from post-war Germany. The accused is a German citizen, who was the wife of a German officer. The German state passed a law in 1943 or so requiring citizens to inform the appropriate authorities if someone -- including family members -- made anti-regime remarks or worse. She actually wanted to get rid of her husband so she could hook up with a lover. Apparenty the husband did say something anti-regimeish, and the wife eagerly pounced. She reported her husband for making anti-regime comments. He was sent to the Russian front, where he promptly and conveniently (for her) died. She is brought before post World War II courts. Her defense is, "look, I was obeying the law. So what if my motive was less than pure? Lots of people obey laws eagerly only when doing so coincides with their own interests. Are you going to accuse them of hypocrisy too?" The question before the post World War II court was: can we go back and say that what someone did in obedience to a lawfully enacted law was not only unjust or unsavory or unethical but *against the law*? And, if you're a positivist on law, I would imagine that the answer is a resounding no. But Antigone would have no problem at all saying the wife was in violation of timeless laws written long before that horrific scourge Adolf Hitler was born.

So but anyway I don't agree with Sanchez's characterization of the citizen as a legal category. As always, I am open to having misunderstood.

[Nate]

hi John,
Thanks for clarifying. The problem for me is to do with what constitutes a community. For Schmitt it's a people - an organic collectivity that exists prior the political and is the ground of the political. The friend/enemy distinction is based on them being a group who threatens our way of life, us being a nation of some sort. None of that really appeals to me. At a theoretical level I want to say that that organic collectivity is just artificial (product of a decision) as any other. Community then for me expands almost to a vanishing point, and is largely subjective/perspectival. One political problem then that arises is that of membership: are Basques Spanish or Basque? Northern Irish are Irish, English, something else? That is to say, there can be communities that aren't mutually recognized as communities. Invasion by a foreign power strikes me as at least in part a nonrecognition of the integrity of the community being defended.

My objections to the plane flyers are ethical and based not least on a gut level revulsion, remembering those events. I'm not sure how to systematize any of that, though. What if there was an American neighborhood in Baghdad (sp?) where planes were flown into buildings, as part of an effort to defend the community, the same act by differenta actors? Is that terrorism, or partisanship? And is their a distinction that each side would agree upon in a way that there's any difference in the term (ie, that each term doesn't just function as a name for "hated enemy")?

Gotta run, need to watch the World Cup (speaking of community...) with my wife.

take care,
Nate

[John S. Ransom]

Nate,

I know you say you've got to run, but I think your comments get to the heart of the issues. One possibility is that writing "on the fly" is actually more productive than other methods.

You write: The friend/enemy distinction is based on them being a group who threatens our way of life, us being a nation of some sort. None of that really appeals to me. [end excerpt]

What you've said above resonates with me. I know everyone makes fun of the 'resonates with me' line, because it's supposed to be like a cat purring. But when you say, to paraphrase, "frankly, the whole idea of thinking of myself or some community as being defined relative to some other or the threat of some other, I tune out," I find myself in frank disagreement. Take a lesbian mother of two sperm-donated children. She has a partner, but the partner has nothing to do with the children genetically, though she does parentally. I know people like this and I love them! I respect them! I shouldn't say I love them because I don't think they'd like that. But boy oh boy do I think it is just this side of fantastic that lesbians are having children and raising them and going to PTA meetings; same thing for homosexual couples that adopt or raise children. Do you want to talk about Gramsci? Do you want to talk about civil society? DO YOU WANT TO TALK ABOUT A WAR OF MANEUVER? But darn it comrades this fruitful perspective on life and maternity/paternity and family RELIES on and cannot exist without an 'us' and a 'them'.

Sometimes people think: "the heart of leftism is opposition to every congelation of life form." But that's such a mistake!

let's see what happens if you apply Schmitt's language to the political system of the global village, which may mean that "regionally limited state of exception" and "regionally limited war" denote the same situation.

the term "citizen" is only meaningful in the context of constitutional rule. therefore, a citizen can only be identified before the armed conflict that leads to state of exception has started and after it has been ended.

during conflict a person has only rights in so far as the fragmented context in which he tries to survive does in fact support these rights: the rights of a civilian under military rule, the "rules" of the partisan group, the military law of the army unit he serves in etc.

during the armed conflict, i.e. during the state of exception as in Iraq today, the different groups fight for supremacy and eventually sovereignty - the power to end the state of exception on their terms.

(reminder: "Souverän ist, wer über den Ausnahmezustand entscheidet.")

from a western perspective, the procedures used to manage and shape the transition from state of exception to constitutional rule as well as the political reality of the regime itself are used as yardsticks to measure the degree of "lawfulness" and "humaneness" of the newly established regime.

in trying to learn the lessons from ww II several UN members lead by the US and the UK today act (or at least threaten to do so) to exert force on those regimes that do not live up to (primarily western-defined) UN or int'l standards of "lawfulness" or "humaneness".

in a case such as Iraq, this amounts to a one-sided declaration and subsequent enforcement of state of exception from the outside (aka threatened or enacted invasion).

by claiming that the regime of Saddam was unlawful and inhumane in the first place the invaders argue that the state of exception imposed by them is in fact progress in the direction toward constitutional (western-UN-style) rule. this claim is swiftly accompanied by the promise of free elections, economic improvement and lawful government.

in contrast, 9/11 can be viewed as an outside attempt (by a terrorist organization) to impose state of exception on the US and most of the UN system.

in effect, the result is a peculiar mixture of constitutional rule and "limited state of exception" in many regions of the world, in the US and its closer allies maybe a bit more so than it other parts of the developed world.

however, this "limited state of exception" is not applied to the whole of the nation state but only to certain "extra-constitutional" regions (sometimes just a single building on a remote military base) and to certain groups of people who are treated by "extra-constitutional" measures.

so from both sides of the conflict, the other side is seen to be acting "outside the law". each side sees the other side to be using "irregular" forces and means to achieve control over the global but at the same time "limited state of exception".

and both sides have declared their particular flavor of "state of exception" which is merged into one to the extent that the two (in fact there are certainly more) parties interact with each other.

questions remaining:
who is going to end the state of exception and how?
how can a transition to constitutional law be managed that meets the standards developed after ww II?
what type of constitutional law should stand at the end of this novel conflict - fragmented and yet global at the same time - in order to replace the shattered UN system?

and of course in many western nations today the way the secret police / service is collecting data about citizens is justified with reference to the "state of exception" aka "war on terror".

[Nate]

hi John,
Still on the run, sorry. I'll revisit at a slower pace. Your friends sound great and I'd rather hear about them than Gramsci or civil society. Among what I'm not convinced of is the national community (the homeland, the people, the nation) as most important or as particularly legitimate. Hence my not being clear on what the mistake is that Bush and co are making in your view. To me it seems like they're just dissing who they take to be an enemy in order to try and better constitute the friend/enemy grouping they're after. Gotta run. More soon-ish.
take care,
Nate

[john c. halasz]

Perhaps some dose of "realism" is in order here, based on the realization that "The Theory of the Partisan" is at the limit of Schmitt's framework of thinking, and can not simply be pressed into service to limn the contemporary situation. (Schmitt could perhaps no more deal with Al Quaeda than with the WTO). And further that the distant, spectator's (or speculator's) point of view, which is, after all, that of the juridical, is less relevant than that of the participants, or how participants are "roped into" the situation of conflict. If lines of force are necessary to the establishment of "legitimacy", then so is the containment of force. (And a glance back at Gramsci's notion of hegemony might be in order: the "state of emergency" is precisely the condition of a faltering hegemony, which must have recourse to naked force to shore itself up.) The political is an amoral realm, whose prime criterion is efficacy,- (if "sovereignty" is "the organized monopoly on legitimate violence", then perhaps the key word there is "organized"),- which is why the distinction between friend and enemy, as much analytical as polemical, "defines" it. If, for Schmitt, the permanent potential of lethal violence necessarily underlies such a distinction, then that is not just because such maintains the essential tension, exulted station, or "seriousness" of the political, but because it is the relation of respect between enemies, upon which they stake their lives or ways of life, that constitutes the "morality" of the political and contains its violence. (If, pace Schmitt, moral or ethical considerations must enter into the political, in the guise of "legitimation", then it is in a mixed, "impure" or "contaminated" form: any morally tolerable politics, qua public, must be protected from the purely moral,- and vice versa,- lest the intrangigence of "ends-in-themselves" obstruct any efficacy. If, e contrario, a purely moral issue, such as, e.g., abortion, is politicized, then it is precisely as a divisive device to mobilize social anxieties and resentments to the political "cause", rather than as an effort to resolve the issue in terms of social policies.) The upshot of this schema is that politics is not a matter of war as an end-in-itself, of permanent war, any more than it can be a matter of permanent revolution, (which would deprive the word of any political meaning, unless, of course, the term is being deployed as a political ruse), but rather concerns the balance of power, "internally", as well as, "externally". Or else, in any case, you're dealing with something terrifyingly "post-political".

That is why Schmitt discusses the Cold War in terms of "absolute emnity", since the sheer excrescence of annihilatory force contained in nuclear weapons had overridden any conventional balance of power, while the nuclear stalemate had rendered exceedingly problematic any conversion of overwhelming force into political power. That is why the two sides faced off in terms of the bogus ideologization of "universal morality" on behalf of global "humanity", to disguise their annihilatory logic and its impotence, while diverting the conflict onto hinterlands, in the light of the global political problem of decolonization and the competition of "resources", (Heidegger's "Bestand"). Which is where the marginal, intersticial figure of the partisan emerges into the foreground. It is not a matter of deciding on the legitimacy of partisan violence, (let alone romanticizing it), but rather of understanding its means and ends in terms of a response to the overwhelming explosive and logistic force of modern, highly technologized military domination and its subversion. (It's "legitimacy" is determined by its efficacy and the conversion of that into the overturning/reorganization/reoccupation of the imposed social "order"). In the two most prominent cases of the FLN and the VC, both resorted in some measure to terrorist tactics and strategies, with a clear nationalistic basis, but not necessarily any unambiguous majoritarian consensus, "trading" the cost of 10% of the whole population for 10% of the enemy military. (And, in any case, post hoc, "victory" devolved eventually into a dirty civil war in Algeria and a market-reforming, FDI seeking development state in Vietnam). But what Schmitt seems to be concerned with is not ruling on the "legitimacy" of such means, but with understanding their efficacy as "determined" by subverting the means and "nature" of their enemy, and in emphasizing the intrinsically(?) self-limiting "nature" of their aims in resisting the annihilatory universalism of global "humanity". But at that point, we are at the limit of Schmitt's "classical" conception of politics in terms of sovereignty, unitary, inalienable and entire, as the sole source of power, rooted in the political ultima ratio of death.

So it's doubtful that Schmitt could provide the terms for considering the current situation with Al Quaeda, the GWOT, and the war in Iraq. These are operating, with their dubious interlinkages, in a still more ghostly domain of a "politics" beyond the rule of death, "unitary, inalienable, and entire". In the case of the Iraq War, we have a case of a complete disintegration of a sovereignty already fractured under the "rule" of international law, since the unprovoked, unilateral,"preventative" invasion by the U.S., (which, of course, was not determined by any actual threat, but by the display of raw power, in defiance of any constraints of "international law", indeed, with the scuttling of the international non-proliferation regime as one of its tacit objectives), meant that the U.S. had assumed "sovereignty" under that same "international law" without any domestic basis for its legitimation,- (once again the word "organized" comes to the fore),- resulting in a low-grade civil war, which could yet implode into worse, in which there is as yet little public identification of enemies, little centralization of commands or fronts, and little clarity of aims, only a confusion and traumatization of publics. (Any idea that the Busheviks would have been drawing any inspiration from Schmitt can be quickly dismissed, in the light of entirely predictable consequences, as silly). The dealings of death over there establish no apparent recognitions, while seeming to observe no limits in terms of hegemonic or counter-hegemonic aims.

In the case of Al Quaeda, we're dealing with a reactionary/nihilistic cult of terrorism for its own sake, with "political" aims that are sheerly imaginary, (though they might have been responding to the failure of more violent forms of political Islamicism and reconsiderations on the part of Islamicists, in which case the Busheviks could not have been more obliging). At any rate, the histrionic cult of suicide-bombing, for all that it performatively negates the claims of sovereign power as grounded in death, and for all that it utilizes advanced technical means to organize the subversion of technological civilization, has no delimitable strategic aim beyond mirroring the annihilatory universalism of its imaginary enemy.

Finally, the Bushevik mobilization of the 9/11/01 atrocity into the GWOT, drawing on a hodge-podge of pre-existing sectoral agendas, linking an already excrescent legacy industrial-military machine to the securement of a globalized corporate hegemony with its privileged access to "resources" and "markets", in its delirious ideological incoherence, its appalling operational incompetence, and its glaring lack of any reasoned strategic calibration of ends to means, for all that it arrogantly gloats in a brutal display of "power", while leveraging the concern with "security" into a hold on domestic power and its unrelated agendas through the stigmatization of reasoned opposition, ironically undermines its own capacity for "sovereign" decision-making, through disrupting international alliances and frameworks, in which it held a dominant position, and through short-sighted evasions of domestic law and institutional governance, hollowing out its own actual capacity to "decide the exception" and confront a publically specified enemy, (which means organizing an effective, identifiable alliance against it), by virtue of its ludicrous overgeneralization of "the enemy" in the image of its usurpatory idea of its own limitless power. The very absolutization of "security" only multiplies its phantom enemies in the impossibility of its quest, since terrorism, as the aggression of the "weak" against sovereign power at its weakest point, its claim to provide "universal" security, to protect its citizens/subjects, is, in fact, cheap and easy to do, provided one overcomes any inhibitions, the only real difficulty being in securing any desired symbolic/spectacular effect. The only real security that is possible lies in the mutual recognition of insecurities, that is, in the limitation of sovereign power through its need for recognition as legitimate and through the mutual recognition of sovereignties, wherein the inhibitions against violence are re-enforced. The failure to acknowledge insecurities and cross-dependencies, as to calibrate risks and complexities, can only diminish effective power in the long-run, as the derealized phantasmagoria of its "omnipotence" clouds the ability to assess the potentials and options of both friends and enemies, and fractures the generalization of public interest. But then we are no longer in the realm of unilateral decision, grounded in the power of death, but have entered into the dance of coordinated decisions, into the contractual powers between states that constitutes "international law" and into the claims of publics against their governments: into the realm of the multi-lateral and "polyarchic", whatever the power-differentials may be. This is the all-but-inevitable horizon and terrain of irreversible differentiation in late modernity in its "globalized" form. But is it the death of the political, as Schmitt understood it, as a power over and above life, and a lapse into the permanent diminishment of a "post-political" age, preoccupied with the mere securement of human survival and its material interests? Or is it a post-"classical", no-longer-Euro-centric transmutation of the political, rooted in a perspective "beyond death", beyond the unilateral power and decision over death, which would be participation in the always ambivalent world of potential others?

[John S. Ransom]

john c. halasz writes: So it's doubtful that Schmitt could provide the terms for considering the current situation with Al Quaeda, the GWOT, and the war in Iraq. [end excerpt]

I don't follow your thinking here. As you comment, Schmitt speaks of absolute emnity. The specific context in which he raises this idea is the worldwide Cold War that ran from the Berlin Wall and airlift to he collapse of the Soviet world in 1989. But I don't get how the difference between our situation now and the one when Schmitt was giving his lecture limits the thinking we can do with Schmitt. This is a methodological question, no? As in, "What lessons can we expect from studying the reflections of others?" Or, "What are appropriate and inappropriate ways of handling an author?"

If a reader's primary "intention" is to understand the organic unity or 'primary overall message' of a thinker, she's may be be wary of someone who comes along and bounces off an author without any concern for this primary message. She's going to say "But 'x' author would never say anything like that; 'x' can't be used that way."

Her reaction is determined, however, by her 'primary intention' in the first place. Change the intention -- and there's lots of other reasons to read someone besides understanding that person's perspective -- and the use reasonably changes as well.

Don't you think the 'absolute emnity' idea (and the thinking that surrounds it) has useful application to the War on Terror? Above you described Al Qaeda perfectly, in my view: "In the case of Al Quaeda, we're dealing with a reactionary/nihilistic cult of terrorism for its own sake, with 'political' aims that are sheerly imaginary..." Doesn't the absolute emnity idea fit this 'reactionary/nihilist cult' pretty well?

[Gabriel Sanchez]

John S. Ransom,

I think you've misunderstood that case and the great debate that ended up arising out of it (I believe it was carried on in the Harvard Law Review during the 1950's). On its face, it looks like the classic positivist v. natural law showdown (the same showdown that took place in debates leading up to Nuremberg and the Japanese war crimes trials). The situation was more nuanced than that insofar as the court found itself being swayed by political concerns. At the time in Germany when that case was decided, there was a lot of pressure to deal with informants during the Nazi-era. There was also a real fear that the transition to a stable legal order would be undermined if vigilante violence broke up to deal with informants and other perceived criminals of the Nazi-era. The court in that case made a decision animated by those concerns, for better or worse.

Those same concerns are at the heart of what I mentioned previously--transitional justice. When states are moving out of situations of terror, they are faced with a multitude of challenges concerning the efficacy of their legal systems in relation to those who perpetuated that terror. Classic notions of sovereign and head-of-state immunity clash with obvious outcries from victims; the need to move on meets the need to punish; and the concerns of bringing perpetrators to justice must meet with the reality that to do so is pragmatically impossible. You can have symbolic trials and maybe punish the baddest of the bad apples, but the cases are overhwhelmingly difficult to prove and as the years slip by, the balance shifts much more easily towards "forgive and forget".

To characterize any of this as the P v. NL quarrel is to groosly underestimate what is at stake in these sorts of affairs. It is also to take an unneccessarily dualistic approach to law. NL, for all practical purposes, is dead on the world legal stage. What has replaced it is concerns with far more nebulous categories of law like "universal jurisdiction", "jus cogens", "customary law", and other such "transcendent" principles that are really finely tuned variants of positivism. When one factors in the socio-political and dogmatic concerns for blind liberalism, one finds--in my estimation--a very dismal situation.

Citizenship is a legal category in that only in the juridical realm does citizenship matter. I certainly do not advocate that forecloses a fundamental rethinking of citizenship in the legal context, but perhaps you could enlighten me on what citizenship means apart from law. Does it carry some rhetorical force? Sure. Does it have moral weight? Maybe. But all of that seems to me to be wholly secondary to what citizenship entails legally. It is only there that one's citizenship can grant them something and only there that one's citizenship can obligate them to something. Everything else is either hopeful thinking, a fiction, or both.

you _earn_ citizenship by acting as one within the community you happen to live in.

this is also true for every single new immigrant granted US citizenship. here citizenship is granted by the US in exchange for the _promise_ (or pledge) to behave as citizen in future.

citizens create law by mutual understanding and collaborative action (the declaration of the constitution, the subsequent passing of a law by the legislature, every single sentence issued by a court) not the other way round.

the transition from state of exception to constitutional law means the parallel rebuilding of the community _and_ the law from the ruins of the former social order(which is either based in natural law or maybe in some sort of religious law in non-western countries).

this is complicated but not more so than the creation of "constitutional" rule was in the first instance (england, US, france, the first califate,...)

transition from state of exception to rule of law is very similar to "taming the beast of the revolution". Now with state of exception on a global scale how is it possible to manage the transition to global rule of law?

quote:
NL, for all practical purposes, is dead on the world legal stage.

this is true. it reflects the fact that the UN system is dead as well. in consequence, the declaration of human rights is also irrelevant now. and the conflicting parties give ample evidence that they are not (or only very little) concerned with human rights.

this observation on NL is a good indicator that "state of exception" in fact is a good description of the global situation right now. then the terms "partisan" as well as "terrorist" are not of legal but only of rhetorical value.

[John S. Ransom]

Gabriel Sanchez writes:

NL, for all practical purposes, is dead on the world legal stage. What has replaced it is concerns with far more nebulous categories of law like "universal jurisdiction", "jus cogens", "customary law", and other such "transcendent" principles that are really finely tuned variants of positivism. [end excerpt]

No doubt 'natural law' has always been off the *formal* legal stage. That's not new. Creon, too, thought Antigone's natural law argument was nonsense. And I can understand that. From the point of view of *law* this thing called "natural law" makes no sense, because for 'law' to work we need some authorized agent somewhere actually writing down laws, with written decisions on their basis that can be looked to for precedents of this or that kind -- all the machinery of positive law is at odds with natural law. But nevertheless, natural law in my view lives on. That's because there's always going to be this ambiguity concerning the relationship of the word 'law' with the word 'justice.' It is very hard (and probably not desirable) to drain away the normative 'penumbra' of law due to its link with 'justice.' If someone breaks a law, is caught and punished, we say that justice has been done. But sometimes when someone breaks a law, is caught and punished, we don't say that justice is done, but that an injustice has been done. (This is what happens when a runaway slave in the North is caught and sent back to its owner in the South in accordance with the law.) That's what happens to the unfortunate Creon: a community-wide consensus emerged that his *law* was *unjust*. But isn't that just confused thinking by the Greek chorus? Aren't words being used 'the wrong way' when someone says, 'a law is unjust'? On what ground can this judgment -- that a law is unjust; and that an unjust law is no law at all -- be made? If law were truly hermetically separated off from all non-law-like influences, we could say with Hobbes that "he that in his actions observeth the laws of his country, make but one name, equivalent to this one word, just" (*Leviathan*, Part 1, Chapter 4). But it's common, in fact, for laws to be challenged and criticized, and this is done precisely because 'written law' and 'justice' are always going to be associated but also pulled apart by the ideal normativity of the latter.

Gabriel writes a bit later:

"Does [the word 'citizenship'] have moral weight? Maybe. But all of that seems to me to be wholly secondary to what citizenship entails legally. It is only there that one's citizenship can grant them something and only there that one's citizenship can obligate them to something. Everything else is either hopeful thinking, a fiction, or both." [end excerpt]

Don't underestimate the power of hopeful thinking or fictions. It is a mistake to believe that 'hopeful thinking' is a weightless human pass time, and that if we want to learn about the real world and how it works, we better aim our realistic and illusionless sights elsewhere. No, hopeful thinking is an active force in the world, not in some unitarian summer camp way (or my unfair mental stereotype of a unitarian summer camp) but in a very real-world effects kind of way. That means if we want to be realistic we have to take such things into account -- they are part of the 'real world' we insist on being exclusively interested in. Such hopes are just as 'real' as laws or anything else more formally established, which were themselves at one time 'mere' hopes; fictions with no apparent relation to the real world.

'Citizenship' has a profoundly moral basis and the laws we or our representatives make are designed to implement, to institutionalize, that moral understanding. And if those laws tend to degrade our status as citizens, then we throw the "unjust law no law" book at them. Sooner or later. Even Hobbes says that the *purpose* of the Leviathan is to provide for the security and prosperity of its citizens: "For by art is created that great LEVIATHAN called a COMMONWEALTH, or STATE, (in Latin CIVITAS) which is but an artificial man; though of greater stature and strength than the natural, for whose protection and defence it was intended..." (*Leviathan,* Introduction). The laws provided by the sovereign are designed to implement this purpose, and if he fails to do that -- Hobbes doesn't want to say there will be a rebellion, for obvious reasons, but he doesn't have to.

I don't think, by the way, that I have misunderstood the case of the German woman in question, and I don't see how the points you make about it point to that conclusion.

[s0metim3s]

thanx for making clear that you do not welcome outsiders to speak here to your clique.

deconrockz, seems to me that the only thing that is obvious here is that there's nothing like "a clique" at all. And I don't see why you think you're the only one who should be able to express robust disagreement and subsequently make accusations of 'unwelcomeness' if someone similarly takes issue with what you have to say.

[john c. halasz]

John S. Ransom:

I don't want to get bogged down in too many words again, and you were right that I was trying to "delimit" Schmitt and bring in other , perhaps opposed considerations, (dimly from Arendt and Levinas). But I understand Schmitt to be not just a virulent, rancorous, blood-chilling thinker, (though he's that), but an intelligent one with real elements of rationality in his thinking. But his thinking arises from a "classical" European political conception (of "Christendom", which already implies a shared set of conventions and understandings), of "sovereignty", as "unitary, inalienable and entire", attaching to a body-politic, in which it has the monopoly over legitimate violence, that is, the power over death, and in which it is related to other sovereignties in a "state of nature" through war (and thus again death) as deciding the issue between their respective claims. But the whole point here is that this arrangement effectively contains the lethal potential of political violence, externally through balance of power alliances and internally through constitutional limitations. Call this a restricted economy of violence. (This is where the friend/enemy distinction becomes "definitive": one chooses one's friends, i.e. allies, by deciding clearly on one's enemy, not vice versa). And this more-or-less "worked", from a Euro-centric point-of-view, from the end of Napoleon to the outbreak of WWI, when its very "success" resulted in catastrophe, (which is when Schmitt enters onto the scene, picking up the pieces). I see Weimar-Schmitt, from his rightist point-of-view, as attempting to maintain or restore this restricted economy, which contains the lethal potential of enmity through "legitimate" authority, over against "disintegrative" tendencies stemming from both the increased differentiation of social sectors and interests and the internationalization of sovereignties and economics. But note that he still works from the conception of sovereignty as unitary and its power of decision measured as its limit by death.

But after WWII, with the advent of nuclear weapons, the sheer excrescence of destructive military means had overridden any order of sovereignties, even as that same excrescence had rendered military violence useless as a means of ultimate decision,- (henceforth, there are only "small", deliberately restricted wars, no matter how bloody). Hence the notion of absolute emnity, as an unrestricted economy of violence, at once absolute, because excrescent in its means and no longer localized, and impotent, as no longer effective in organizing political means and arrangements through the containment of violence. And that is where the figure of the partisan emerges into Schmitt's thinking, when he no longer has any part in things, as the ironical figure of Schmitt's own concerns, as I put it before, as the place-holder of a missing and impossible natural law.

But, in the meantime, the very tendencies of differentiation/disintegration that so disturbed Schmitt have continued apace, both in the "internal" constitution of modern societies, not just in terms of economic sectors and classes, but in terms of institutional orders and their quasi-autonomous "logics", which the state must co-ordinate without having a capacity for a singular power of decision over them in accordance with its own unitary "logic", and, "externally", in terms of the globalization of economies and the politicization of international relations with the growing cross-dependencies of "sovereign" states. And that is where Schmitt's political decisionism becomes defunct. I understand the latter as congruent with Heidegger's notion of authentic resolution through being-toward-death, wherein the self gathers itself through a retrieval of its heritage into a unitary commitment, which, while rising above mere self-interestedness, nonetheless gathers its forces in terms of the survival/preservation of its bios qua unique way of life, as measured by the limit of death. But what if death no longer gathers into and transmits a unity? What if death-dealing violence or the assumption of the risk of violence and death can no longer decide or bring about a unitary result, but only the transposition of one plural condition into another plural condition, since the coordination of plural decisions, no matter how conflictual, is henceforth the condition of the political? Doesn't the inevitable component of violence and coercion in political/legal affairs now longer conduce to the interest and force of unitary survival, but rather suggest a prospect of the "beyond death", the genuine disinterestedness public goals or prospects, because any recourse to violence is limited in its efficacy by consideration of the plurality that it promotes? To be sure, the unlimited potential for violence remains, but its decisiveness is blunted by its own bluntness, by its inability to gather alliegances, the component forces of decisions. Could there be, not in terms of utopian or idealistic aspirations, but in terms of the force of real constraints, a new "principle" of limitation in the "beyond death"?

As to your other comments here on "natural law", it would be best not to confuse the issue with considerations of "substantive" justice. That there would be a pre-political basis in natural order for the normative "force" of law simply begs the question of what that "natural" order would be and why the normative should be derived from its givenness. (Libertarians would claim, for instance, that private property is a natural reality, rather than a social institution). But natural law is now regarded as a non-starter,- (Strauss would be the apparent exception),- not only because the secularization of politics has deprived it of its theological basis, (it being much more a Thomist than an Aristotelian notion), but because the technological transformation of modern society has exceeded any prior basis in "nature" or "human nature". If your interest rather is in the basis and transformation of normative conceptions of justice, I might suggest that you look to the work of Levinas, one of the prime motivations of which, very much against Heidegger, was to delimit and set limits to the political and power relations, in terms of its before and beyond.