One of the hard parts of Carl Schmitt's writing is determining what he calls the 'political'. Tracy Strong writes in the introduction to The Concept of the Political that to Schmitt it is "the arena of authority rather then general law and requires decisions which are singular, absolute and final". Since that is his definition of the political it is easy to see how Schmitt made the leap to believing that the only determinant of true sovereignty is a governor who operates under a state of exception.

The executive is the only presidential or parliamentary position that has any constitutional allowance for singular or absolute action. Unsurprisingly the executive is a position that republicans distrust the most and seek to place the greatest restrictions on through constitutionalism, bills of rights, separation of powers and check and balances. Not to mention popular elections and term limiting.

When state of exceptions do occur under constitutional system they are usually done so with the legislative and judicial willingly surrendering their authority into the executive so that the president or prime minister becomes the sole governing authority. Under republican doctrine this is tyranny and unacceptable. At this point liberal republican government collapses and is replaced with the arbitrary whim of the executive.

Schmitt believed that the crisis in liberalism was that it had no political. Liberalism and democracy supposedly finds temporal truths through compromise, horse-trading, bartering and all the messiness of a system comprised of free individuals acting in their self-interest. This is repugnant to Schmitt as the temporal nature of democratic truths lack the absolute truth of authority - which must be final (according to Schmitt).

He writes:

The specific political distinction to which political actions and motives can be reduced is that between friend and enemy.

Schmitt's complaint is that liberalism reduces the enemy to a competitor in the economic sphere and a debater in the political sphere - which by Schmitt's definition of the 'political' removes the absolute nature of authority. To Schmitt, this is a crisis of political legitimacy that liberalism suffers.

Schmitt is actually arguing that liberalism denies absolute tyranny - which is what singular authority is, and is what a state of exception is. Tyranny is political violence, even in its insidious form, which we know as arbitrary government.

Schmitt is concerned that liberalisms temporal nature of friend and enemy denies the capability of an absolute political - which is only achieved if there is a permanently morally, ethically and aesthetically repugnant enemy for the 'political' to wield its final authority on.

Like most supporters of tyrants, the enemy target is usually a domestic politically weak minority. Unsurprisingly Schmitt wrote anti-Semitic texts in support of the Nazis. His political philosophy underpins many of the exceptions and emergency political decisions of the Third Reich.

Liberalism extends from the enlightenment and was a response to the absolute rule of monarchs who derived their power to rule through divine right and hereditary lineage. The rationalism from writers such as Locke, Hume, Smith, etc took the irrational out of the political power, enabling the individual to have a political life of religious and economic freedom.

Political institutions that appealed to irrational legitimacy, such as the church and monarchs, could not survive in such a system. With this change in worldview came the elevation of the individual above mysticism such that political rights were subject to reason as well.

It is irrational for an individual to willingly place themselves in a political system that enables them to suffer from tyranny. Schmitt's analysis will always suffer from this, it asks for the irrational elevation of a state of exception so the 'political' can retain absolute authority.

This is in complete opposition to republicanism which reasons political equality as the end result of individuals expressing their political freedom.

Marxism was once the opponent to liberalism but is now being replaced with Schmittian Conservatism . If there is a binary friend-enemy descriptor in republicanism it is liberty-tyranny. Tyranny is repugnant to republicanism - thus the Schmittian 'political' has to be as well.

John C. Halez has a thought provoking article on Gary's site where he writes: "no legal system is autonomously self-subsistent and self-regulating, but rather all legal systems will contain areas of indeterminacy, unpredictable and depending on historical circumstances and conditions, which must be 'supplemented' by political decisions."

One of the hard things about discussing Schmitt and Agamben is the definition of the 'political'. Both arguments hinge around that. Schmitt described the political as the singular and absolute authority, while Agamben describes it as where the nexus between violence and law is broken.

The Killfile has an interesting article on the issues surrounding Senior Sergeant Chris Hurley and the death of Mulrunji Doomadgee. Killfile writes that he suspected there was not enough evidence in the case to overcome reasonable doubt and this may have been why the Queensland DPP did not move to prosecute. So from a legally administrative point of view, and the use of public funding in what was pre-determined to be a case that was unwinnable, the decision was a rational one. However:

There is another factor to take into account in this case, which is that the deceased was an Aboriginal man who died in police custody. Given the history of Aboriginal deaths in custody in Australia, particularly in the North, it is important that justice not only be done in this case, if possible, but be seen to be done.

The seen to be done matches John's description of the legal system's indeterminacy. A political decision was made which gazumped the administrative probabilities of a legal outcome.

One of the results of an exception being created is that the politics become unitary. Essentially the politics around the exception or emergency become the executive and executive's alone. The health of liberal democracy is dependent upon political competition, discussion and deliberation. Removed of its liberal component democracy is reduced to the mechanical action of voting.

An establishment of a state of exception requires several a priori: precaution against a plausible catastrophe, the executive taking over judicial expression and a submissive legislative who is willing to legitimize the exception in legislation.

Parliaments are on the backfoot in this area anyway, as the executive dominates the legislative and decides what bills are pushed through or hit the floor. With the recent dominance of the party-machines in Australia and the United States at the federal level we have seen the deliberative process destroyed entirely in the legislative.

In the United States the recent round of legislation which legitimizes exception governance is the Patriot Act. Amongst other things it allows the executive to avoid having Senate confirmation for US Attorney appointments. The recess clause in the US Constitution has often been used for exception appointments, that this got through in the Patriot Act is remarkable.

In Australia the Migration Act is the main source of legislative legitimization for exception governance. This is not new, the clause requiring fluency in multiple European languages from the 1950s is an example of legislation enabling adhoc and arbitrary executive and executive official's decisions.

There is an argument for Ministers and Executive Officials and Bureaucrats to have that power as individuals often use their representatives familiarity with the arcane behaviour of the modern state to navigate the bureaucracy. For instance my green card application was stalled until our local New Jersey Senator got involved. But this is a failure of the modern state's organisation and processes.

When an exception or emergency is established it makes the politics unitary. Unfortunately Carl Schmitt's description of all this is proving to be accurate. With the establishment of the exception the politics become us and them; not the competitive, deliberative and discursive nature of liberalism. Under an exception, the 'them' can be sacrificed to the politics.

As an example, in the United States in 2002 and 2004 during the Congressional and Presidential elections which were fought under the extended exception of the Great War Against Terrorism those that disagreed with politics of the executive were painted as traiters and treasonist.

The only reason this could be claimed was because the politics became unitary, and as a consequence the liberal nature of the system was removed and the politics of the state and election became the executive's.

Obviously civil libertarians and the political opposition can fight against this but they have to do so as a 'them' not as political competitors in a liberal political system.

So the establishment of exception drains the liberal out of liberal democracy.

Fortunately exceptions tend not to be absolute and are usually contained in small areas and for short periods of time, though they often threaten to became permanent emergencies.

It is interesting to note that the electoral season in the Australian federal system has already claimed two exceptions. The first was the Indigenous issues, and now the Haneef issue. Both cases absolutely required a justified level of government involvement; but they did not justify the establishment of exception.

In the Haneef issue, where the government was right to bring him in for questioning over his association with those that committed criminal acts in the UK, once the exception was established with the Migration Act and the gazumping of the judicial, the trial ceased to be in the ordered private space of the court room and instead became a political trial where guilt is still being fought over in the public political space.

The executive, the defendant and lawyer are arguing their cases in the media, not infront of an impartial judge. The executive has made the politics unitary and has taken over the judicial component of it as a political trial. It may be that Haneef should be locked up for association with known and active terrorists, but politics is not the way to determine it, the judicial is, lest it become tyranny of the majority.

In both cases of exception discussed above the political opposition acquiesced to the government. In the case of the national emergency over indigenous issues it was as a war cabinet. In the Haneef investigations the opposition agreed with the executive. Political dissent only came from the Democrats and Greens.

Anyone who thinks this form of exception governance is limited to conservative parties is kidding themselves. While it is a form of conservative governance (ie not liberal) the Labor Party is just as capable of using it to inform governance.

An example of this is the NSW Labor Government after the Cronulla Riots which passed the Law Enforcement Amendment that enables the confiscation of property and the isolation of an area. Effectively with police checkpoints. Again the civil libertarians and the judical become the political 'other'.

However this made the politics unitary as any dissent on the emergency becomes a 'them' or enemy of the emergency. Peter Debnam's only competitive movement without becoming a 'them' was to endorse stronger prohibitions within the emergency:

The Opposition supports rushing the bill through the House, but there are some difficulties about it. Opposition members do not oppose the passage of the bill but we wish to highlight a number of concerns with it. The bill simply is not strong enough in almost all its provisions.

That is how we get ludicrous speed legislation like the Law Enforcement Amendment and the Migration Act which never fall off the books and enable future exceptions.

Exception governance, apart from being repugnant to republicanism and trashing the liberal in liberal democracy, is actually becoming the norm at all levels of government as more and more executives see the value in exception becoming "a new rule of permanence, a new long-lasting condition of suspension of the rule of law, whereby politics could become the product of a succession of ad hoc decisions made by government officials and bureaucrats"

The binary differentiator in politics is now liberalism and conservatism. Exception governance manages to remove the liberal. In an election season it limits the scope of politics that can be liberally competed over as the areas of emergency effectively rope off the politics of the emergency from competition or deliberation. Unfortunately we are seeing exceptions increasingly being used as an electoral advantage.

Update - Ken Parish commented on troppo's missing link that this post did not mention Giorgio Agamben. State of Exception gets discussed often enough on South Sea Republic that I don't always explicitly mention that connection every time. Agamben mainly explored the legal nature of a state of exception where this post tries to explore the political aspects of it and the impact on electoralism and democracy.

Carl Schmitt argued that without a friend-enemy distinction there was no 'political'. Increasingly that division is rotating around the distinction between reason and irrationalism. Reason is often construed as a political outlet for liberalism.

Conservapedia recently challenged scientific data for a bacterial experiment. From the article:

Of course, that lack of understanding [scientific illiteracy] might be expected from someone who seems to believe that there are distinct conservative and liberal forms of science.

Still, you can sense the beginnings of a response to the fact that the situation may be spiraling out of Conservapedia's control.

When a contributor suggested the exchange was making the site look bad, the response indicated that the any problems could be dismissed as a case of biased perception: "What sort of Liberal defeatism are you bound up in, and why do you assume, without examining the facts of the matter, that this has not gone well?"

The division is not really scientific, it is political with the friend-enemy distinction being enunciated clearly. Barry Ritholtz has a similar issue with how the economy is portrayed through media:

We have heard longstanding charges of liberal media bias, going all the way back to Spiro Agnew's Nattering Nabobs Negativism (September 11, 1970). Whatever validity that Trojan horse might have ever had has now jumped the shark. ...

Indeed, the bias is precisely the other way -- between reality and ideological absurdity

It is too easy for those immersed in irrationalism to discard reason, data or rational methods and explain away an inconvenient world-view. Under liberalism and the dominance of the individual as a political entity the debate, too-and-fro of politics is supposed to establish a principle of the least dissatisfaction within constitutionalism.

Liberalism is intended to diminish the foe within, or the enemy of the state, by elevating the individual above the state. The friend-enemy distinction allows for the justification and establishment of the state of exception where the state can act in a manner that is repugnant to the doctrine of inalienable political rights. Effectively placing an individual outside of the judicial order.

Arguably the danger in the friend-enemy distinction is that it aids an environment where the executive can claim emergency and operate under a state of exception.

Like the United States, Australian conservatism is dealing with multiple factions such as nativists, economic rationalists and social conservatives. However, like US conservatism the basis is Schmittian;

The charge against liberalism is that liberalism promotes a civicly divisive pluralism and that the public sphere is little more than the chattering classes indulging their narcissism to unending discussion or ever lasting conversation. Decisive decisions on tough issues are what is needed--not endless chatter.

This leads to the existential unavoidability of exceptional emergency situations (the state of emergency) and the necessity of an unaccountable sovereign defending/guarding the Australian people from external threat in unusual and threatening times.

This is deeply embedded in western culture form Roman times. Cincinnattus was a Roman farmer who was plucked from his fields to defend Rome from the Gauls. To do so he took the temporary constitutional position of dictator and after defeating the Gauls, retired back to his fields.

Caesar used this path as well - just without the retiring bit. He claimed himself as dictator for life. Augustus' innovation was to use the constitutional position of Tribune to ensure permanent imperium and freedom from political persecution by the Senate via the Tribune's ability to veto.

The problem with a Schmittian reading of the failure of Liberalism is that its solution breaks constitutional liberalism and ultimately the capability for good governance. As such it is a temporal solution. The chaos that the US Republican Party finds itself in currently is a result of this.