Cam,
Schmitt did link the political(friends/enemies distinction) to sovereignty, and he understood sovereignty in terms of he who decides the exception.

I do not see that this is at odds with Republicanism--it basis sovereignty on citizenship.Moreover, even freestanding republic must declare a state of emergency when faced by an external threat to their existence.

Personally, I think that you are much better off engaging with Schmitt by grappling with Schmitt's criticisms of liberalism (Weimar parliamentary liberalism) in order to see how Republicanism can help to overcome the defects of a liberal democratic regime.

Gary, I am arguing because republicanism is the political science component of liberalism that focuses on minimising (eradicating) tyranny, as opposed to liberalism which seeks to maximise freedom, that a state of exception is incompatible with republicanism. A state of exception is by definition tyranny. So republicanism and emergency cannot exist together: so an emergency becomes an abberation that cannot be politically or constitutionally allowed - ever.

he understood sovereignty in terms of he who decides the exception

Maybe the republican argument is sovereignty is decided by who can deny exception.

Cam,

I understand your concerns in the light of this contemporary example of a state of emergency.

However, your's is a very revisionist account of republicanism; it is an American reading that ignores the history of republicanism, both classical and early modern.

The Roman Republic (not a democratic republic) had such powers of dictatorship on a temporary basis to deal with states of exception emergency. Moreover the state of exception was built into the Constitution. Schmitt starts from this point in the context of threat to the Weimar Republic.

Secondly, your American interpretation collapses republicanism into liberalism, when classical republicanism is more often than not interpreted as an alternative to modern liberalism, due the emphasis on citizenship, virtue, the common good, federalism and corruption. Isn't the suspicion of the state (tyranny) more an expression of classical liberalism than republicanism, which accepts the state but aims to constrain its powers through federalism.

Gary, Emergency government is pretty much going on everywhere these days. Even the local government in DC is governing by emergency.

Modern republicanism starts with the US republic which was the end result of the enlightenment. I don't think Roman Republicanism can inform modern republicanism.

I think it is a failing that constitutions have non-republican clauses put into them. The Canadian charter of freedoms are a good example. They enunciate rights, which are supposedly inalienable. However there is clause such that three of them can be suspended temporarily by parliament. The inalienable becomes alienable - and hence non-republican.

I consider liberalism and republicanism analagous. Liberalism is the philosophy of maximising individual freedom where republicanism is the political science (technologies) or minimising tyranny. They arrive at the similar problem from different angles with republicanism being highly technologically focused (ie technologies like constitutionalism, separation of powers etc).

Cam,
the way you interpret republicanism is fine by me. We differ on that (eg. rights is liberalism virtue is republicanism for me) but that difference is not what is at issue here, as your post was about Schmitt.

The issue is that, given your American interpretation of republicanism you do need to engage with Schmitt's thesis that states of exception are built into the constitution, and are not external to it. (Roman law is the basis of European law is the assumption. Schmitt was a legal scholar. Giorgio Agamben, in his States of Exception text, traces the concept of state of exception used by Carl Schmitt to the Roman legal concepts of justitium and auctoritas.)

In your post you presuppose that, because a temporary dictatorship re a state of emergency represents tyranny, it is alien to liberal constitutionalism. It is outside the constitution and so is tyranny.

Carl Schmitt's definition of sovereignty, as the power to proclaim state emergency, is based on a challenge to that reading. He argued, in relation to the constitution of the Weimar Republic that the suspension of the rule of law was a part of the constitution (Article 48), and consequently it was legal for the conservatives (Hindenburg) to invoke it and suspend the Constitiution.

Isn't this similar to the argument that the defenders of the Bush presidency are making re the extension of presidential powers vi-a-vis Congress? The extension is based on a reading of the Constitution.

So what I'm arguing is that the issue of the legality of the state of exception is not as cut and dried as you make out in your post. It's an issue and the debate is an important one.

Gary, t's an issue and the debate is an important one.

I agree, just this week Chavez got rule by decree from the legislative so Venzuala is in a state of exception now. The governments that are using this form of governance only seem to be increasing rapidly.

It is a weakness in our current technological forms of liberal democracy that this is happening. That is why I think it is important to state clearly that is repugnant to republican principles.

If state of emergency does exist in constitutional language (like it does in Canada) then it is a technological failing. The constitution needs to be refactored, or new political technologies found, so that it becomes impossible.

Cam,
fair enough.

As I understand the boundaries of liberal democratic regimes is a constitutional one. They must work within the constitution, with the High Court( Australia) or Supreme Court (US) as the interpretor and protector of the Constitution. So if the state of exception is built into the constitution (as in the US), and you are concerned to protect individual freedom, then an engagement with Schmitt is essential.

Giorgio Agamben can help.In his text, State of Exception (2005) he takes issues with Schmitt. Like you he acknowledges that the state of exception is a dangerous and violent place of operation. This is because:

the political power over others acquired through the state of exception, places one government-or one form or branch of government-as all powerful, operating outside of the laws. During such times of extension of power, certain forms of knowledge shall be privileged and accepted as true and certain voices shall be heard as valued, while of course, many others are not.

He is concerned with the phenomenon that the suspension of laws within a state of emergency or crisis, can become a prolonged state of being.

It is a concern because sovereign law makes it possible to create entire areas in which the application of the law itself is held suspended---which is what Bush is doing. So detainment camps (such as Guantanamo Bay) or immigration detention centers (such as Bari, Italy where asylum seekers have been imprisoned in football stadiums) are kinds of camps that are entire zones of exception.

I cannot recall how Agamben suggested we respond to this in terms of a 'countermovement'. I know how he made his case against Schmitt who legitimised violence against citizens. I know that it wasn't in terms of an appeal to the High or Supreme Court to strike the camps or the state of exception down. Nor was it to reaffirm the power of Parliament or Congress against that of the executive or President. (Liberal or Republican responses?)

I think that Agamben argued that it was a mistake to confuse the state of exception (limited powers) with dictatorship (a fullness of powers), and that this was the flaw of Schmitt's analysis. But I cannot be sure. I do recall that Agamben argued against Schmitt in terms of reading the debate on the state of emergency that pitted Carl Schmitt against Walter Benjamin from 1928 to 1940 and that it was the issue of revolutionary violence.

Gary, Agamben argued that distatorship was a fullness of powers, while exception was an emptiness of law.

... it was easier to justify [for Schmitt, Rossiter and Friedreich] the state of exception juridically by inscribing it in the prestigious tradition of Roman dictatorship that by restoring it to its authentic, but more obscure, genealogical paradigm in Roman law: the iustitium. From this perspective, the state of exception is not defined as a fullness of powers, a pleromatic state of law, as in the dictatorial model, but as a kenomatic state, an emptiness and standstill of the law.

Which describes the camps as they are areas where contitutionalism, and even political rights, cannot reach. I remember thinking when I read homo sacer that the iustitium was a good historical analogy but not really very relevant to modern legalities - mainly because modern law is secular.

I think however the state of exception goes back to republicanism because republicanism is technologically driven. Constitutions are a human created political technology. Humans do exploit flaws in systems, they always have, and always will, technologically the current system will need to be patched, or a new technology of limiting governance come up with to remove the state of exception as a form of governance.

Cam,
yes that sounds right re dictatorship. So Bush's state of exception in the 'war on terrorism' is not a dictatorial one--as it involves the suspension of law in the camps. So we have constitutional liberalism and an empty space; empty in that it is a space that is devoid of law.

Brett Neilson in this review of Agamben's state of exception says that:

For one reason or another, the existence of such spaces devoid of law seems so essential to the legal order that the latter must make every possible effort to assure a relation to the former, as if the law in order to guarantee its functioning must necessarily entertain a relation to anomy.

Is this inside/outside the case? I am persuaded that it is. hence the connection to the Romans. Modernity was not the fundamental break with the classical world as it proclaimed itself to be.

Gary, Modernity was not the fundamental break with the classical world as it proclaimed itself to be.

It is enough that it is alien. For instance the Roman sacro est was built around taboo, sacrifice and divinity which Roman law moved to accommodate.

I am reminded of the Eoran legal system when I read Keneally's book. Ritual spearing for fraternal disputes doesn't fit with modern morality, and blood-debts that can be taken within an extended family do not fit modern rationality either. Same with law surrounding the dreamtime. Modern legal systems are secular with is a change in rationality.

There may be analogies with modern legal practice and Roman times, but I don't think they are informative due to the superstitious nature (arbitrary or arational) of pre-secular legal systems or the changing morality and rationality.

It may not be a clean break, but the changes are enough that it would make the pre-modern system appear alien.