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If the state of emergency is a litmus test for the rule of law, it is because it pits judicial authority against another institutional force: That of the sovereign. Thus any analysis of the state of emergency must also include a discussion of the concept of sovereignty, its nature and its limits. The reverse, moreover, is also the case: If we wish to understand the concept of the sovereign in the modern state, we must focus first of all on its role during crises.
Most discussions of this subject refer to the arguments of the controversial German theorist Carl Schmitt, the “crown jurist” of the Third Reich.38 Schmitt’s Political Theology (1922) attempts to redefine the concept of sovereignty in view of its gradual displacement from political and legal discourse by the liberal theory of the state. The classic definition of sovereignty as “the highest power that is not derived from anything” is too abstract, explains Schmitt; if we want to assign it any real meaning, we must focus on its concrete application, namely the question of “Who decides in a situation of conflict what constitutes the public interest or interest of the state.”39 On these grounds, Schmitt argues at the beginning of the book that “the sovereign is he who decides on the exception.”40 He later elucidates:
It is precisely the exception that makes relevant the subject of sovereignty, that is, the whole question of sovereignty. The precise details of an emergency cannot be anticipated, nor can one spell out what may take place in such a case, especially when it is truly a matter of extreme emergency and how it is to be eliminated. The precondition as well as the content of jurisdictional competence in such a case must necessarily be unlimited. From the liberal constitutional point of view, there would be no jurisdictional competence at all. The most guidance the constitution can provide is to indicate who can act in such a case. If such action is not subject to controls, if it is not hampered in some way by checks and balances, as is the case in a liberal constitution, then it is clear who the sovereign is. He decides whether there is an extreme emergency as well as what must be done to eliminate it. Although he stands outside the normally valid legal system, he nevertheless belongs to it, for it is he who must decide whether the constitution needs to be suspended in its entirety.41
Schmitt shifts the sovereign authority’s center of gravity from the legal to the extra-legal domain, or, more precisely, to the point where the two meet. To him, the sovereign is not the legislator, but rather the one who decides on the suspension of the law and acts in the normative vacuum created as a result. In this respect, the sovereign embodies the naked presence of the state, stripped of the rule of law: “The existence of the state thus demonstrates unshakable supremacy over the rule of the legal norm,” emphasizes Schmitt. “The decision is released from any normative constraint and is made absolute in the fullest sense of the word.”42
Yet, as Schmitt himself points out, in regimes built on the separation of powers and a system of checks and balances, the identity of the sovereign is far from clear. Indeed, in such cases, Schmitt’s criterion may no longer be valid, since the authority to decide “what constitutes the public interest or interest of the state” is rarely concentrated in a single body or individual. In the Israeli case, for example, this authority is granted to both the legislature and the executive branch: The Knesset, or parliament, is authorized to declare a state of emergency; if it cannot assemble quickly enough, however, the government is allowed to make this decision on its own. On the other hand, the legislature may cancel a state of emergency at any time, or decide against extending it beyond the date of its automatic expiry, contrary even to the recommendation and opinion of the executive branch.43 A similar arrangement exists in other Western countries: In most European democracies, for instance, the law allows the government to declare a state of emergency independently, but, after a predetermined period of time, it must obtain parliament’s approval.44
The constitutional basis of liberal democracies makes it difficult, therefore, to identify the sovereign on the basis of the authority to suspend the normative legal order. Furthermore, in view of our earlier discussion of the rule of law, Schmitt’s attempt to attribute “unlimited” authority to the sovereign subject is, in the case of liberal democracy, more of a theoretical abstraction than a practical possibility. In such countries, the government’s decision-making process almost always involves deliberation and negotiation, even in times of crisis. The reason for this can be found, among other things, in the dynamic framework of power relations in a democracy, and in the obscure place that the sovereign occupies within that framework.
The unique configuration of the democratic system has been brilliantly analyzed by the French theorist Claude Lefort. Lefort sees democracy not only as a form of government, but as a way of life that stands in dramatic contrast to the “old order” embodied in medieval monarchies. Following the historian Ernst Kantarowicz, Lefort notes that the political theology of Christian Europe relied on the belief that the sovereign comprised two bodies: One natural and mortal, the other spiritual and eternal.45 This duality was also evident in the identification of the ruler with his kingdom—that is, the conception of the monarch as the incarnation of the collective “body politic.” The king was thus conceived as a link between heaven and earth, his presence imparting a divine legitimacy to the human community at whose head he stands.
All this changed with the advent of modern democracy. The head of the “body politic” was cut off, both figuratively and literally. In the new order, legitimacy was no longer conferred from above, but now from below, from the sovereign people. But the concrete identification of “the people” as such is highly elusive. Democracy, therefore, cannot hope to fill the void created by the abolition of the monarchy. As Lefort explains, in a democracy,
Power appears as an empty place and those who exercise it as mere mortals who occupy it only temporarily or who could install themselves in it only by force or cunning. There is no law that can be fixed, whose articles cannot be contested, whose foundations are not susceptible of being called into question. Lastly, there is no representation of a center and of the contours of society: Unity cannot now efface social divisions. Democracy inaugurates the experience of an ungraspable, uncontrollable society in which the people will be said to be sovereign, of course, but whose identity will constantly be open to question, whose identity will remain latent.46
The “empty place” of power in a democracy makes it into a locus of interminable conflict as parties, politicians, individual citizens, corporations, interest groups, and governmental authorities jockey for influence, resources, and political advantage. Such interactions are supposed to take place in accordance with established rules, even if at times they assume a violent, destructive character. Yet this disorderly dynamic is in no way considered problematic; it is, rather, a necessary, even desirable, part of the democratic system. Whenever any individual, party, or other group in power purports to embody popular sovereignty in a perfect and tangible way, it paves the way for totalitarianism; a society preserves its democratic character only to the extent that it adheres to that same paradoxical formula according to which power belongs to “the people”—and thus, precisely, to no one.
Lefort rejects the very possibility of recognizing a sovereign subject in democracy, at least the way that concept was articulated by philosophers such as Jean Bodin, Thomas Hobbes, or Schmitt. But even if we accept Lefort’s claim, it can still be argued that the lack of an identifiable sovereign does not rule out the possibility of a sovereign decision concerning the exception. The Israeli philosopher Adi Ophir maintains, for example, that “In no way should we use the unified characterization of the term ‘sovereignty’ to describe the workings of the government itself… the exception is never a miraculous event as Schmitt imagined it, radiating from the place occupied by the sovereign, but rather a governmental decision enmeshed in a tangle of different power centers.”47 The picture Ophir draws is more complex than the one proposed by Schmitt: The decision to enact a state of emergency, in his view, is not a clear and decisive order issued by the sovereign, but rather the result of interaction among different players in a dynamic, complex system. It needs no soloist; it can be produced, in most cases, by a choir.
