I would not wish to add anything to Bryan’s lovely tribute to Jean Elshtain below. Just know that in the days since she passed I’ve heard similar sentiments from scores of other folks who knew her.
About five years ago I was asked to review Jean’s Sovereignty book alongside Italian philosopher Giorgio Agamben’s work. Whether due to its deficiencies or an overloaded publishing schedule, it never saw the light of day. Her passing reminded me of the piece, and I do think it gives one an sense of one of her many substantive and insightful works.
Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford University
Jean Elshtain, Sovereignty: God, State, and Self (New York: Basic Books, 2008).
Sovereignty is a perennial concept in political philosophy that continues to attract political theorists and practitioners of all persuasions. It is also a subject, like natural law or justice, which elicits controversy even in the attempt to define it. Nevertheless it is safe to say that sovereignty, and political sovereignty in particular, has to do with the nature of whom or what is in charge and how power is exercised. Controversy ensues as soon as one takes the additional step of inquiring whether a given sovereign should be in charge or insists that there is a normative element as to whether a sovereign’s authority is warranted. The subject of sovereignty also reveals a great deal about the approach taken by those who wrestle with it.
We see this illustrated in two relatively recent books addressing sovereignty and its importance for our politics and our understanding of the human condition. Jean Bethke Elshtain’s Sovereignty: God, State, and Self and Giorgio Agamben’s Homo Sacer: Sovereign Power and Bare Life each purport to find in the notion of sovereignty a key to the history of political philosophy in the West. In many ways the books, and their authors, could not be more different. And yet they each address what appears to be the same political phenomenon.
Jean Bethke Elshtain is a political philosopher with appointments in Georgetown’s Department of Government as well as the University of Chicago’s School of Divinity. Sovereignty: God, State, and Self traces how debates about God’s sovereignty influenced understandings of the sovereignty of nation-states and finally morphed into conceptions of human beings as individual sovereign selves. Elshtain writes self-consciously within what might be called the “central tradition” of the West and acknowledges her debt to the Greeks, Augustine, Thomas Aquinas, Pope John Paul II, Benedict XIV and Albert Camus, among others.
Elshtain describes sovereignty as the “sine qua non of political life” as it is more often than not an unexamined starting point in political science rather than a concept to be investigated (xiii-ix). Those states are sovereign that hold ultimate power within definable boundaries. Elshtain’s project in this book is to peel back that basic assumption and reintroduce a normative quality to the mere fact of governments exercising power (43). In this she aligns herself with both Plato and Aristotle and their followers. To hold that sovereignty is essentially an amoral concept, recognizable only by observing who wields power rather than who wields power appropriately, is to restate the essential definition of justice given by Thrasymachus and challenged by Plato’s Socrates in the Republic. Elshtain’s project is Aristotelian in that her position holds that a proper conception of sovereignty cannot sever the concept of power from the appropriateness of the ends to which that power is directed.
Elshtain’s book is ambitious. Her aim is nothing less than a retelling of the story of Western philosophy by tracing the various debates that have taken place about sovereignty. Her book can be divided into three sections apropos to the title: the first addresses sovereignty and God, the second sovereignty and the state, and the third sovereignty and the individual.
These debates begin with arguments about the nature of God’s power and its relation to God’s goodness. This relation is seen in a paraphrase of Socrates’ question to Euthyphro in the dialogue named after him: is the “good” good because God says so, or does God say so because it is good? One answer emphasizes God’s power and will. God is not bounded by anything, including his previous promises or actions. Sovereignty here is bound up in the ability to transcend limits, even self-imposed limits. The “good” we mortals think we apprehend may very well be mistaken should a sovereign God change his mind.
Elshtain identifies with the other side that emphasizes God’s goodness, reason, and trustworthy character. Following Thomas Aquinas, she argues that God has guaranteed, to some degree, the intelligibility of the world and our access to it. It is not like him, as she puts it, to pull the rug out from under us (30). Yet this understanding is tempered by an Augustinian emphasis on our creaturely nature and the difficulties we have with language (4-6). Elshtain steers a middle course here between an untrammeled ode to human reason and a despairing pessimism. We see through a glass darkly, but we still see.
The thread which begins in her theological section and continues throughout the work is an ongoing contest between a monistic depiction of power and a pluralistic conception. The monistic picture of God is a deity who is remote, unbound, and arbitrary. Elshtain defends the pluralistic conception of God in part by exegeting Augustine’s treatise on the Trinity and endorsing his emphasis on God’s relational nature. Moving to the political realm, the monistic picture of sovereignty in the state is one of ultimate and unbridled power. We think of Louis XIV’s remarkable claim, “I am the state.” In contrast, the pluralistic picture follows the model of Jesus’ statement that there are things of Caesar and things of God; neither church nor state should see itself as the ultimate earthly authority. One of the most valuable contributions of Elshtain’s book is her debunking of the Enlightenment stereotype that described the medieval political model as one of unchecked power guaranteed by God’s decree. On the contrary, as Elshtain demonstrates, the West did not know true absolutism until modernity identified sovereignty, and justice, with the mere command of the sovereign (107).
Elshtain concludes her book with a discussion of how the notion of sovereignty has migrated not only from God to political states but from politics to individuals. This section features Elshtain at her most prescriptive and critical. Her previous ruminations on how several seminal thinkers have treated sovereignty in both God and state are invaluable, yet naturally historical and as such somewhat distant. The same cannot be said for Elshtain’s concerns about how sovereignty as autonomous self-empowerment has manifested itself in contemporary culture. Here her critiques hit closer to home. What does it mean to understand myself as an autonomous will unbound by anything outside of my own desires and decisions? What happens when we reject a recognition of and respect for human finitude and instead experiment with improving our very natures through bioeugenics? What do the practices of abortion and euthanasia tell us about how our society draws the circle of who merits concern and protection and who does not? With characteristic skill, Elshtain weaves these themes together with reflective mediations on original sin, hubris, and the fundamental dangers that accompany humanity’s flirtation with redefining what it means to be human.
Giorgio Agamben is an Italian philosopher whose academic interests include public law, ancient grammarians, political and postmodern philosophy, and philosophy of language. His 1995 book, Homo Sacer: Sovereign Power and Bare Life, appeared in English in 1998. It was followed by an indispensable short sequel, State of Exception, published in English in 2005. Homo Sacer is, to put it mildly, a difficult and intimidating book. Unlike Elshtain, Agamben assumes his audience’s familiarity with his dialogue partners, namely Michel Foucault, Carl Schmitt, Walter Benjamin, Hannah Arendt, Heidegger, and Nietzsche. The writing can fairly be described as dense and indeed at some points almost incomprehensible. It is not a book to be taken up lightly and one would do well to have alongside Homo Sacer the works of Foucault and Schmitt. Perhaps most indispensable is Agamben’s sequel, State of Exception, as it seems to be written with a larger audience in mind. Despite the steep learning curve with Agamben, he has become a cause célèbre in postmodern circles and among elements of the political Left which are particularly critical of the Bush administration. Why is this the case?
Just as Elshtain’s book is a retelling of the history of Western philosophy, so is Agamben’s book an ambitious project. Agamben claims to have found the key to understanding politics. Much of Homo Sacer and State of Exception is an extended interaction with Nazi philosopher of law Carl Schmitt. Schmitt defined the sovereign as that entity which could declare a state of exception. The state of exception’s closest English rendering is the imposition of martial law; in theory it is the notion that a sovereign government can set aside the constitutional order for the sake of saving that same constitutional order. The same idea is seen in the phrase oft heard by defenders of extraordinary measures purportedly needed for national security, “The Constitution is not a suicide pact.”
This rough idea is that the letter of the law can be disregarded for a greater necessity and we find this notion throughout antiquity. Agamben devotes a chapter of State of Exception to the Roman Iustitium whereby law could be suspended to deal with a catastrophic emergency. We can also see a glimpse of this principle in Mark 2 where the Pharisees complain to Jesus about his disciples breaking the Sabbath. Jesus’ reply, that King David himself broke temple law to eat bread when he was hungry, illustrates his larger point that the law (Sabbath) was made for man and not man for the law.
Agamben focuses on an obscure figure in Roman law, the homo sacer, a man who has been designated as a criminal but who cannot be sacrificed by the state. At the same time, the protection of the law is lifted from the homo sacer, and he may be killed with impunity. While Agamben delves into much detail as to how this figure was understood by the ancient Romans, for his purposes the most salient point is that the homo sacer cannot be sacrificed but can be killed. For the homo sacer to be sacrificed his humanity would have to be recognized. He represents the danger that accompanies a sovereign that takes upon itself the power to declare some of those residing within its sphere as expendable.
But how does the fate of one unfortunate figure in ancient Rome relate to Agamben’s concerns with the modern state? Simply put, Agamben believes that the state of exception rationale now defines the entirety of Western governments rather than being an occasional resort to extraordinary measures. The paradigmatic example of this is found in Auschwitz. The National Socialist regime based its claims to extraordinary powers on an unending series of national emergencies. The Nazis’ coinciding defining of Jews and other groups as inhuman took the principle of homo sacer and expanded it to include millions of people no longer related to the legal realm except insofar as that very same legal realm had designated them as such. While this raises several conceptual puzzles, the important point is the sovereign stepped out of the legal bounds that supposedly gave it its shape and subsequently engineered an unimaginable genocide.
This explanation, however, does not stop with the Third Reich. What made Homo Sacer a controversial book is that Agamben claims that this paradigm of the “camps” is descriptive of Western governments as such. What made Homo Sacer prophetic, in the eyes of some, is the convergence of Agamben’s theories with the Bush administration’s treatment of non-combatants following the events of September 11th. Agamben, and other academics like Judith Butler, see in the Bush administration’s designation of Guantanamo Bay prisoners as only the most obvious example of how modern democracies manifest the homo sacer logic of the concentration camps by designating some people as existing in a legal limbo and thus ultimately expendable.
Yet it is important to emphasize that Guantanamo is not an oddity but the exemplar of modern democratic society. Agamben goes so far as to claim a link between the totalitarian regimes of the 20th century and modern-day democracies (10) and spends the last third of Homo Sacer trying to reconcile this claim with the accomplishments and human rights declarations of the same democracies that opposed Nazism, Fascism, and Communism in the last century. It is only a matter of time before the decadence of consumerist democracies bent only on the bare necessities of life degenerate into the totalitarian regimes they had once rivaled. More than this, according to Agamben, it has already happened (174). Any time the state declares a class of people capable of being killed—outside the protection of the law—it displays the logic of the camps as the essence of modern politics.
It is difficult to know how to respond to such a claim. One might expect Agamben to provide some sort of tangible evidence beyond the extreme examples. Agamben rejects this expectation. In the introduction to Homo Sacer he asserts the existence of a secret link between democracy and totalitarianism, but does not claim this in any “historiographical” way. Rather, Agamben works on a “historic-philosophical level, since it will allow us to orient ourselves in relation to the new realities and unforeseen convergences of the end of the millennium.” (10). In a 2004 interview with the German Law Journal the interviewer queries Agamben about how he can so easily link the United States with Nazi Germany. Agamben’s response is telling:
But I am not an historian. I work with paradigms. A paradigm is something like an example, an exemplar, a historically singular phenomenon.. . . I use this paradigm to construct a large group of phenomena and in order to understand an historical structure . . .. But this kind of analysis should not be confused with a sociological investigation.
In other words, he’s more or less making it up. Or so it seems to this reviewer who has been trained in political theory within the larger discipline of political science, a discipline that places at least some value on connecting political ideas with observable, concrete political reality. To equate the everyday politics of contemporary Western democracies with the unspeakable evil of Nazi Germany’s concentration camps grossly mischaracterizes current governments while at the same time universalizes the very particular horror found in Dachau and Auschwitz. It is an error of empirical description exceeded only by a risible moral equivalence implied by the comparison. There is a reason the very words “Dachau” and “Auschwitz” elicit from us a quite different reaction than do “Washington”, “Paris”, and “London”.
To be sure, Agamben’s particular examples are real historical phenomena, and Agamben has found an interesting puzzle for philosophers of law in his description of the state of emergency. How does the law legally allow for its own suspension? Moreover, his real examples—the Nazi death camps, the shameful internment of Japanese Americans, even Guantanamo, for the sake of argument—all illustrate the extremes to which government can go in putting aside constitutional constraints because of an overriding emergency. We would do well to heed his warning regardless of whether we find his explanatory rubric persuasive.
But notice that the political lesson we draw from this valuable reminder is, in an intellectual sense, rather trivial. Democracies can do bad things. Even the most just political societies degenerate. Plato’s Republic covered this theme rather well. One wonders what comparative standard Agamben has in mind or what historical era witnessed governments that did not commit atrocities or designate classes of people as expendable.
But there is a more fundamental question that must be put to Agamben. What resources does his approach to philosophy offer such that we can appropriately describe the injustice we might find in Guantanamo, or the depth of depravity we did find in the concentration camps? We ought not forget that Agamben operates in the disenchanted world this side of Nietzsche’s shadow. Once one has jettisoned the existence of a good to be discovered and not merely created, does not one also lose the capacity to speak convincingly about evil? Perhaps this is why he describes Nazi atrocities as “disturbing” and “disquieting”, but never evil or diabolical. Perhaps this is why he can equate modern governments with the Holocaust, but cannot appreciate the modest but tangible benefits such societies have provided to actual citizens living real lives in them. We might wonder if the problem of evil cuts both ways. Undoubtedly those who have found Agamben compelling would claim that this reviewer has failed to understand him, and it is certainly true that his book contains more than can be justly considered in this review. The reader may have to determine for herself where the fault lies and in what measure.
Reading Elshtain and Agamben on sovereignty provides the reader with an education not only in the concept of sovereignty but in what political theory and philosophical inquiry should be. Elshtain assumes that essentially Aristotelian and Christian framework which holds that there is a discoverable human nature and purpose, and there are genuine moral goods and virtues that constitute a morally worthwhile life. While always mindful of the limitations incumbent on fallible creatures, Elshtain’s teachings on sovereignty call us back to the possibility that there are truths to be found and even revealed truths to be accepted.
In contrast, Agamben follows in Nietzsche’s wake. He is one of many philosophers, existentialists, genealogists, and aestheticians who have continued Nietzsche’s work of unmasking a disenchanted world, attempting to create their own values and sifting through—or deconstructing—the scattered fragments of thought from those who do not yet know that God is dead. While Agamben cites Foucault, Benjamin, and Schmitt most frequently, it is the towering figure of Nietzsche who stands behind them. This is the real reason why Agamben works in paradigms that do not lend themselves well to critical evaluation.
The attempt to craft a framework within which these two approaches to political ideas and phenomena can be adjudicated is a quixotic enterprise. To evoke Alasdair MacIntyre, we are confronted with rival and entirely incommensurable traditions of thought. As evidenced in this review, neutrality is not an option, even granting the genuine insights one can glean from the “other side”. With that in mind, we would do well to heed the warning Agamben offers about the dangers of governments abusing their sovereignty even as we might prefer Elshtain’s tradition to explain why such abuse deserves our condemnation.
Center for Politics & Religion
 In this regard Agamben offers a welcome respite from most postmodern theory in that he has the boldness to claim he’s found something true across time and culture. There is a whiff of metanarrative that permeates his work.
 Ulrich Raulff, “An Interview with Giorgio Agamben,” German Law Journal, Vol. 5, No. 5, 2004, 609-614. Omitted in the ellipses are references to Foucault.
 Agamben introduces the puzzle in Homo Sacer but explains it more thoroughly in State of Exception. Basically when a government claims a state of exception it creates a conceptual space that is both apart from the legal realm and yet created by it. As Agamben puts it, the state of exception is an exclusion that is included in that the legal realm creates it. At the same time this “it”, this state of exception, is by definition independent of the law which authorized its creation. This aporia is what defines the modern essence of sovereignty.