Lukács tells an amusing anecdote in the “Reification” essay about a legendary critic in India who sets about investigating the myth he has heard about the world resting on the back of an elephant. “If this is so,” the thinker proposes, “then we must ask about that which the elephant stands upon!” When he is told that the elephant is balanced with dramatic precariousness on the back of a tortoise, the thinker is satisfied and his inquiry ends. If he is not, of course, he can always continue his search and inquire after that which the tortoise stands upon. He can search for a third miraculous animal.

The point being that the line of inquiry itself is rotten.

The uncritical critic inquiring after the foundational myths is not the only example of poorly directed thought; there are myriad wrongheaded ways to think: Is it estrogen that prevents women from performing well in math, and if so can hormone therapy boost their test scores? How do we get the state out of the market in order to ensure the prosperity of all? Is it justifiable for the United States to use force to dispossess Iraq of its WMDs? The list is endless. What unifies each is an incorrect orientation toward the world, an orientation that accepts certain explanatory schemata, certain organizing formalizations, that are not only inadequate but in fact preclude the critic from approaching a more accurate understanding.

These distortions, stemming from cultural or linguistic patterns, are part blindness–they conceal certain aspects of the world–and part insight–they provide explanation. Unfortunately the insight they provide is no consolation, as it is false, even when it is not the expression of a inherent contradiction in the formation of the pattern itself. Lukács’ provides an example of this with antinomy between is/ought, necessity/freedom, etc, that arises out of the framework of classical German philosophy. Pressed with the need to explain how one might exercise freedom, might find a point of entrance into a world that is completely determined by necessity, Kant and those following him are caught in an impossible position; they cannot even explain in principle how this is supposed to be possible. The reified concepts–such as necessity, causality, etc–that they must assume to order the world they do not understand as historical achievements, but as mere givens. Hence there is a hard divide between the world so ordered and our action on it. This line of thought reduces one to the so-called contemplative stance.

It is this stance, or something akin to it, that underlies Schmitt’s explanation of the operation of laws. Concerned as Schmitt is with the status of the exception–the point at which the law no longer maintains–he is confronting the hard opposition of matter and norm, content and form: the break between the law considered as an ideal silhouette and its application in the roughhewn factual world that never will fit into it. Schmitt believes that disjuncture is what every legal theory must keep in mind, as the

awareness of what the essence of what legal decision entails. Such a decision in the broadest sense belongs to every legal perception. Every legal thought brings a legal idea, which in its purity can never become reality, into another aggregate condition and adds an element that cannot be derived either from the content of the legal idea or from the content of a general positive legal norm that is to be applied. 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… [Legal decision] is rooted in the character of the normative and is derived from the necessity of judging a concrete fact concretely even though what is given as a standard for the judgment is only a legal principle in its general universality. Thus a transformation takes place every time.1

The problem under examination here is none other than the one Lukács takes up in his essay. But unlike the facile liberals on whom Schmitt piles so much spleen, he will not remain in the contemplative stance; he will rejoin the divided order of is and ought through a positing of a godlike ability to decide normalcy–for this is, really what his theory of sovereignty comes down to: the decision of when to apply formal laws to matters at hand. Yes, unlike Kant and those following who labored hard to preserve and then lay prostrate before necessity, Schmitt will recognize that the law is the creation of an authoritative subject. However, he does not see the nature of this subject itself, and his sovereign remains beyond critique. One can almost see the play of uncritical criticism flashing across Schmitt’s mind: What is legality? The judgment of a concrete situation according to a legal norms, under normal conditions. What are normal conditions? Those that were foreseen, those that are not exceptional. What determines whether they are exceptional? The sovereign.

The history of law in this view is strangely one-sided: it is a chronicle of judgments by a subject with the capacity to decide on things. There is no way of overstating, it should be said, that it is grossly amenable to an autocratic ideology of the state. Besides this, however, it is incapable of providing a satisfactory account of the constitution of sovereign power itself: it just is seen as such (and, relatedly, is tied to an unimpeachable authority–otherwise there is no law). And so, Schmitt’s attempt to save the reified image of law as a formal norm by appeal to a sovereign decision falls victim to its own contradictions: we are bound by the law because it has been decided that it is binding on us, but why are we bound to the decision? Schmitt can provide no answer for why this ought to be; he must maintain that it merely is. But this is an impossible position, and there is no way Schmitt can make his case; for it seems we need not listen–or, at least, treat as anything other than the power-flexing of an autocrat–to the decision, unless we make it, and in that case the notion of sovereign agency is meaningless. Which raises certain problems for the understanding of law’s traction as a result of a decision about normalcy.

1. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, University of Chicago Press Ed. (University Of Chicago Press, 2006): 30-1.

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