The topic of our conference is the “state of exception”. The concept was originated by Carl Schmitt in his book Political Theology (1922) and recently revisited in the important philosophical work by Giorgio Agamben entitled, State of Exception (2005). For Schmitt, the ability to declare a state of emergency and suspend the law is the act that constitutes sovereign power. Schmitt famously declared, “sovereign is he who decides on the exception”.
Schmitt’s ominous formulation might have been an obscure footnote in legal history were it not that he was the principle architect of Article 48 of the constitution of the Weimar Republic of Germany — an article which reads “if public order and security are seriously disturbed or endangered within the Federation, the President” . . . “may suspend for the time being, either wholly or in part, the fundamental rights described in Articles 114, 115, 117, 118, 124, etc.”
On February 27, 1933, the Reichstag fire damaged the house of Parliament in Berlin. Claiming that the fire was the first step in a Communist revolution, the Nazis used the pretext to get President von Hindenburg to sign the Reichstag Fire Decree. Under the decree, issued by von Hindenburg on the basis of Article 48, the government was given the authority to curtail constitutional rights including habeas corpus, free expression, freedom of the press, the right to assemble, and the privacy of postal, telegraph, and telephone communications. Constitutional restrictions on searches and confiscation of property were likewise suspended. Further, the president was given the power to issue “emergency decrees to protect the republic from crises initiated by its opponents”.
The Reichstag Fire decree was never repealed.
Over twelve years, Hitler used article 48 to give his dictatorship a veneer of legal credibility. As Agamben writes, “from a juridical standpoint the entire Third Reich can be considered a state of exception that lasted twelve years”. (Agamben, p. 2) To some extent, it could be argued that it was the “state of exception” that — as Schmitt envisioned — constituted Hitler’s sovereign power. In other words, in some sense, Hitler’s ability to wield power was born out of Schmitt’s notion of “political theology”.
In our own time, Schmitt’s “state of exception” cannot be set at a safe historical distance. As Mark Danner from the New York Review of Books writes regarding the post-911 era in America:
Call it, then, the state of exception: these years during which, in the name of security, some of our accustomed rights and freedoms are circumscribed or set aside, the years during which we live in a different time. This different time of ours has now extended ten years—the longest by far in American history—with little sense of an ending. Indeed, the very endlessness of this state of exception [is evidence of its] increasing normalization . . .
And now, in the wake of the terrorist attack in Paris, events have overtaken the theme of our conference in ways that we could never have envisaged. France’s parliament has recently voted to extend the country’s state of emergency for three months. The emergency powers given to the French police could be extended indefinitely.
Among the “emergency” measures established in the last decade and a half: the establishment of Guantanamo Bay Detention Camp; drone strikes which are used for extrajudicial executions; government sponsored abduction and extrajudicial transfer of people to nations known to practice torture; the warrantless surveillance of private emails, Skype chats, and other online communication; the establishment of sex offender registries and so-called “medical facilities” like Coalinga State Hospital in California, in which sex offenders who have served a lawful sentence are later detained indefinitely until they successfully undergo “conversion therapy”.
The melodramatic emotional appeal to the “state of emergency” has become so routine that it has transferred to mundane aspects of public life — such as the appeal to a self-declared state of “trauma” by students who use this as a basis for denying a platform to ideas with which they disagree and who demand censorship of the literature and history curriculum at major universities. In a society that operates based upon a constant state of emergency, the appeal to individual trauma may be the last desperate gesture of the sovereign citizen — to constitute itself — in Schmitt’s terms — anew in an era of repeated violations to civil liberty.
Schmitt’s concept of “political theology” has had a long and troubled history in Shakespeare Studies. For Carl Schmitt was not only a Nazi jurist, but an eminent Shakespeare scholar, whose legal theories blended in influential ways with his approach to criticism. In Hamlet or Hecuba: The Intrusion of the Time Into the Play (1956), Schmitt’s so-called “decisionist” approach towards legal theory may have given him unique insights into the way that concrete historical traumas intrude into the very language and structure of Shakespeare’s plays. Specifically, Schmitt read Hamlet as allegorizing the Tudor succession crisis and the “world-historical decision between Protestantism and Catholicism.” (p. 83, Victoria Kahn, “Political Theology and Fiction in The King’s Two Bodies”) Schmitt’s paranoid alertness to historical crisis that, for him, is a harbinger of a fascist redeemer, serves to remind us that Shakespeare’s plays were not merely static aesthetic objects, but public events. Recently, critics have employed Schmitt against Schmitt by exploring the progressive possibilities of such intrusions of history into aesthetics. Richard Wilson, for example, in his book Free Will: Art and power on Shakespeare’s stage, has demonstrated how the intrusion of the culture of the public theatre into Shakespeare’s plays reveals the nascent development of Jürgen Habermas’s “public sphere” – which, in turn, prepared the way for the very democratic institutions that Schmitt impatiently derided. (p. 2, Wilson)
But, strangely, it is Schmitt’s legal concept of “political theology” that has had, perhaps, the most lasting impact on Shakespeare Studies through Ernst Kantorowicz’s 1957 classic, The King’s Two Bodies: A Study in Medieval Political Theology. As Victoria Kahn points out, Kantorowicz’s subtitle, “A Study in Medieval Political theology” almost certainly refers to Schmitt’s book of that title. In his highly influential analysis of Richard II, Kantorowicz locates the sovereign’s tragedy in the theological crisis that erupts when he is deposed from power: the “violent separation” (p. 41, Kantorowicz) of his divine body from his natural body. Kantorowicz’s sweeping historical analysis places Richard’s crisis not in the context of Schmitt’s emphasis on the sovereign “decision” through the “state of exception”, but in the context of a larger process by which lawyers, from the medieval period onward, gradually secularized theology in order to consolidate the sovereign’s power. Whereas, for Schmitt, sovereignty must be embodied in a real person whose decisions have the theological significance of “miracles”, Kantorowicz’s study points at the transfer of sovereignty to the individual, which implicitly valorizes constitutionalism and democratic institutions. And yet Kantorowicz, a German-Jewish émigré, whose book was published in the wake of World War II and the holocaust, retains a troubled awareness of the Nazi connotations of political theology. Kantorowicz’s solution is to claim priority for the medieval history he chronicles, which, he implies, has been perverted by the “obsessions”, “weird dogmas”, and “idols of modern political religion” (p. xviii, Kantorowicz): in other words, European fascism, especially Nazism.
Kantorowicz’s anxious relationship with Schmitt’s political theology raises an important question for any consideration of our topic – which Kantorowicz partially evades by avoiding Schmitt’s decisionism and “the state of exception”. That is: not only does the discussion of Schmitt have a disturbing provenance, the rhetoric itself cannot entirely be liberated from its historical origins in fascism – as it has a tendency melodramatically to declare its own “state of emergency”, thereby reconstituting the critic as a sovereign. This can have the regressive consequence of contributing to the very affective contagion that feeds absolutism. Wilson has addressed this concern by employing Judith Haberstam’s The Queer Art of Failure (2011) to theorize the quintessentially sovereign playwright, Shakespeare’s, own abjection – thus countering the triumphalist affective structure of rhetoric associated with power’s “ode to itself” (p. 11, Wilson).
Another problem – which Julia Reinhard Lupton has addressed in her 2005 book Citizen Saints: Shakespeare and Political Theology – is that the discussion of “the state of exception” is loaded towards the drama of the sovereign. While this is appropriate, given the importance of the monarch as the foundation of state power in Shakespeare, Lupton self-consciously moves from that focus to valorize other personages: Shylock, Othello, Caliban, and Isabella. Other critics such as Victoria Kahn, Christopher Pye, Ken Jackson, and Timothy A. Turner have re-conceived and re-envisioned the concept of political theology and the sovereign “state of exception” in a rich variety of progressive readings.
And it is no wonder there has been such a varied and vibrant discussion of “the state of exception” in recent years. Shakespeare’s plays seem obsessively to revisit moments of what Jacques Derrida calls “non-law” (“this moment of suspense” . . . “this founding or revolutionary moment of law is, in law, an instance of non-law”, Derrida, “Force of Law”, 1992) in which what is at issue is the founding violence that establishes the right of the sovereign to govern. In King John, for example, when the King prompts his loyal supporter Hubert to kill Arthur because of the young boy’s claim to the throne, Cardinal Pandulph, the Pope’s legate succinctly describes the situation from John’s perspective: “That John may stand, then Arthur needs must fall. / So be it, for it cannot be but so.” Though Hubert loses the courage to kill Arthur, who dies jumping from a castle wall, Ken Jackson observes that Shakespeare comes dangerously close here to dramatizing sovereign power’s origin in illicit violence. (pp. 85-6, Ken Jackson, 2006, “Is It God or the Sovereign Exception?”)
Or consider the implications of Bolingbroke’s “pluck”[ing] (1H4 III. ii. 52) of the crown from Richard II – or prince Hal — very much his father’s son — associating with Falstaff’s “thieves of the day’s beauty” (1H4 I. ii. 25) — as he prepares to assume the throne. Shakespeare clearly thought through sovereign power’s strange ability to constitute itself through illegal acts.
Consider also the Duke in Measure for Measure’s perverse strategy for the imposition of a state of emergency through his appointment of a deputy, Angelo who sadistically and mercilessly enforces “strict statutes and most biting laws” (MM I. iii. 19) “laws” previously obsolete. Here, the law itself is used demonstrate the sovereign’s ability to undermine law – and to re-consolidate the power of the sovereign “decree” which has become “dead to infliction”. (MM I. iii. 28)
Or consider the trial scene in The Merchant of Venice in which the Duke and Portia perversely use the model of the “state of exception” imposed by Christ on the biblical law of the Old Testament as a moral justification for their anti-Semitism (demonstrating “the difference of our spirit” [MV IV. i. 365]) and, ultimately, as a way to turn the seizure of Shylock’s lands and his forced conversion into a perverse act of Christian forgiveness.
All of this is not to mention the more obvious example of Macbeth who discovers that sovereign power cannot be legitimized except through an unending series of murders — which recall the lawless “olden time” . . . “ere humane statute purged the gentle weal”. (Mac III. iv. 74-5)
The scope of Shakespeare’s treatment of “the state exception” — and its examination of the origin of sovereign power — is varied, rich, and unexpected. His thinking is also profoundly relevant as we struggle to understand and resist sovereignty’s attempts, in our own time, to reconstitute itself through the destruction of our civil rights.
Today, we have a real opportunity — with this feast of papers on the topic of “Shakespeare and the state of exception” — to think through this important issue using Shakespeare’s political, aesthetic, and dramatic insights.
It is my pleasure to welcome you — and I know that this will truly be an important, thought-provoking conference. My hope is that these papers will provide us not only with new insights into Shakespeare’s work, but with the occasion for a running thread of challenging commentary and discussion that will illuminate the truly “exceptional” events of our own times.