Deus in Machina: Heller on Sovereignty and the State of Exception

Abstract

AbstractThis chapter explores three puzzles Hobbes set for modern political and legal theory in his account of the relationship between sovereignty and the exception. First, the so-called paradox of sovereignty: can an all-powerful sovereign commit itself to being bound by any laws, notably, by either domestic constitutional law or public international law? Second, how can rational argument based on individual self-interest sustain the absolute sovereign authority claimed by the modern legal state when that state is no more than a giant machine? Third, in exceptional moments, does the human individual at the apex of the authority structure become the mortal god—the secular substitute for the deity of the era of the divine right of kings? The chapter then explores Hans Kelsen’s, Carl Schmitt’s, and Hermann Heller’s solutions to these puzzles. Hans Kelsen, like Hobbes, banished the exception from legal order. But, unlike Hobbes, he thought that this exile could be achieved only by stripping the sovereign of any godlike qualities, which also required banishing the sovereign. For Kelsen, the sovereign is the machine. Schmitt argued against both Hobbes and Kelsen that the exception cannot be banished from legal order. But that it occurs within legal order shows for him not only that the sovereign has truly godlike qualities, but also that the sovereign stands outside legal order, capable of disrupting it at any time. For Schmitt, the sovereign emerges out of the machine, in the moment of exception. For Heller, the sovereign is neither the machine nor stands outside of it. Rather, the sovereign is in the machine. Like Hobbes, he seeks to show that the sovereign is ensouled in legal order. And with the reinstatement of the sovereign within legal order, so the exception travels back inside legal order. But the exception’s return does not disrupt legal order. Rather, it demonstrates how the normal can deal with the exceptional.KeywordsSovereigntyExceptionRule of lawLegalityLiberalismDemocracyKelsenSchmittHellerHobbes