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Immigration: Is Sovereignty or Law – or Freedom – at stake?

Kahn assumes the United States, as a state, to be a ‘norm’ and does not seem to grapple with anything or anyone external to it: his focus is internal. I would like to suggest that immigrants have been constructed as the quintessential exception – an exception made on the basis of nationalism rather than liberal political theory, though – and that this is generating the kinds of restrictive immigration legislation… Would-be-immigrants are dealt with outside the nation (offshore processing) or hidden within it (detention), preventing their access to legal ‘norms’ available to citizens.


This is the first of an eight part series discussing Paul W. Kahn’s recent book Political Theology: Four New Chapters on the Concept of Sovereignty. The series will post on Mondays and Thursdays for the next several weeks.

Political Theology, Paul Kahn’s latest book, does not exactly make for light bedtime reading. A few pages in – having re-read numerous sentences three or four times – I was beginning to wonder if it was all simply going to be too clever for me. The inherently stubborn part of me decided to plod on, however, and I simply put my need for mental-indigestion remedies and numerous misunderstandings down to one of the following: I am not a political philosopher or legal theorist, and I have only lived in the US for two years. I also made a plan. As someone who finds concreteness easier to grapple with than abstract theory, I decided to read the book through the lens of the contemporary immigration situation in the US. Kahn stresses that theoretical contributions do not depend on local circumstances and asserts the importance of considering content over context in political philosophy, but as a theologian committed to context, I couldn’t resist bringing his ideas into conversation with a ‘pressing local concern’ (5-6). So, where did that take me? Was his book useful in thinking about the political milieu and framework within which current battles over immigration are being played out?

Kahn argues that most of us mistakenly think we are living in a secular, liberal ‘world of law’ in which the supposedly archaic and sacred notion of sovereignty no longer has any relevance. We like to believe that we are reasonable, rational human beings who – given the universal application of an intelligent and effective legal system committed to justice – would all get along fine, resolving any disagreements along the way through conversation. We don’t need a body in which ultimate authority to make decisions rests. Reality is very different. ‘Sovereignty remains critical to understanding the American political experience’ (8) and sovereignty is an inherently religious concept rooted in the practice of sacrifice. A willingness to sacrifice oneself – a free and irrational act of self-destruction (154, 157) – for the sovereign power is what creates a nation-state and establishes its ‘essence’ or identity.  Sacrifice lay at the heart of the 1776 Revolution which brought the United States and its Constitution into being, and the US ‘remains a land of religious faith… Faith in one form or another is a deep part of our political culture and of our political psychology’ (17). This resonates with one of my first observations when I moved here in 2009. Despite almost universally-expressed pride in the radical separation of church and state, I soon discovered that religion plays a far greater role in politics here than it does in the UK (cf. 18). There may be an ‘Established Church’ in the UK, but if the Prime Minister was to mention God, he’d be laughed out of office; if the US President doesn’t frequently end speeches with ‘God Bless America’, he’d lose millions of votes. We need to recover political theology, Kahn argues following Schmitt, because secular liberal political theory simply isn’t adequate to understand the dynamics of political life in the US today. I did wonder, though, if Kahn was really into theology. It seemed to me that he was more interested in the religious underpinnings of politics. Political theology has always implied a normative project to me rather than just a descriptive one: it involves the belief that theology does and should make a contribution to public political life – an understanding which seems far from Kahn’s use of the term.

The complex, interdependent relationship between law and sovereignty explored by Kahn seemed to speak directly into the current immigration situation. Law, he points out, only becomes the ‘norm’ that it is through a sovereign having made a decision upon an ‘exception’. Thus, the exception constitutes the norm and sovereignty precedes the law. While justice and reason are vital, there is something prior and deeper at play in political life relating to authenticity and meaning. So, the first question I considered was: are immigrants – particularly those without authorized papers – being excluded on the basis of the popular sovereign (the Constitution, the courts, etc.) making an ‘exception’, or on the basis of a legal ‘norm’? The discourse certainly seems to be rooted in law: people often claim to be anti-‘illegals’ and Christians sometimes quote Romans 13:1-5 stating that earthly authorities enact divine laws (e.g. Edwards, 2007). Immigrants are increasingly being monitored by law-enforcement agencies – through measures such as the 287(g) in Georgia, SB1070 in Arizona and now the HB56 in Alabama – creating the impression that these are rational, reasonable decisions simply made on the basis of legal ‘norms’ and justice for citizens of the US. The sovereign ‘exception’ occurs when a decision is made to grant certain immigrants amnesty or turn a blind eye (bending these rules in a benevolent direction) or when the President exercises the right to discretionary deportation (bending these rules in a more restrictive direction). As Dan Kanstroom, an immigration law professor at Boston College, points out, prosecutorial discretion is currently undermining efforts to reform problematic underlying immigration laws, even though it often benefits individuals in the short-term – exemplifying Kahn’s argument that making an exception serves to constitute the legal norm.[1]

Beneath this discourse, however, it seems to me that there is a different kind of ‘exception’ at play – the ‘exception’ which exists because it is beyond the nation-state. Kahn assumes the United States, as a state, to be a ‘norm’ and does not seem to grapple with anything or anyone external to it: his focus is internal. I would like to suggest that immigrants have been constructed as the quintessential exception – an exception made on the basis of nationalism rather than liberal political theory, though – and that this is generating the kinds of restrictive immigration legislation I have outlined above. Would-be-immigrants are dealt with outside the nation (offshore processing) or hidden within it (detention), preventing their access to legal ‘norms’ available to citizens. Why is this? Essentially, immigrants are believed to be threatening, and as Kahn aptly notes,

Schmitt believed that a world in which potential enemies are feared is not one that can be fully ordered by law… The exceptional turn to violence will always be understood as the defense of sovereign existence… The Schmittian exception appears whenever the existence of the state as an organized, historical presence is threatened. It is the crisis triggered by the threatened collapse of those institutions that sustain the borders. Those borders are both literal, as when the state suffers an invasion, and metaphorical, as when the threat to the ordinary order arises from within (11, 44. My italics).

Immigrants are believed to transgress both types of border. They are seen as ‘floods’ or ‘hoards’ flowing over or deviously creeping under literal nation-state boundaries and have become associated with the violence of terrorism, particularly since 9/11. The 19 attackers on the four planes were all on temporary visas and a presidential directive in 2001 directly linked these in the public consciousness: ‘Combating Terrorism Through Immigration Policies.’ They are also seen as a real and metaphorical threat within, with people fearing that immigrants will provide competition for jobs or healthcare or housing, or trample down virtually sacredly-held ‘borders’ around culture or language. Fears of immigrants run deep. They go far beyond the rational, tapping into existential questions of being and meaning (Snyder, forthcoming). As immigrants are dehumanized and pushed out, so national identity is bolstered. What is interesting, though, is that it is the ‘other’ or ‘denizen’ being sacrificed rather than the citizen – family relationships, culture, fair wages and safe working conditions, freedom, and sometimes even the lives of migrants are sacrificed (Groody, 2009). Hundreds of men, women and children die in the desert between Mexico and the US each year trying to cross the border. Is it the sacrifices of Mexican or Guatemalan or Nigerian or Bhutanese lives that equate to ‘creative act(s) of destruction’ for the United States? Are these sacrifices bolstering both the countries of origin and receiving country, or just one or the other? How, I would like to ask Kahn, do sacrifices by people internal or external to states (citizens and non-citizens) differ in their efficacy in establishing authenticity and meaning in a particular nation? The sacrifice of ‘outsiders’ seems different from the self-sacrifice that Kahn suggests constitutes sovereignty and the state, and I think most nations are probably better at the former than the latter.

The ways in which undocumented immigrants and refugees are constituted as the ‘exception’ go beyond the individual nation-state though. They are an exception with regards to the entire nation-state system, inhabiting liminal spaces between nation-states and thus having no access to the rights – attached to the legal ‘norm’ – which citizenship (usually) proffers. Full humanness is linked to belonging to a nation (international human rights are usually accessed through a state government, for example) and while refugees therefore represent the failure of the nation-state system, they also perpetuate or reinforce it as a social construction: they are its ‘inevitable if unintended consequence’ (Haddad, 2008: 1). Giorgio Agamben argues that refugees are reduced to ‘bare life’ (zoē in Greek) – meaning nature or animal life without the political freedom and identity understood to constitute a full human being (bios) – and are included only through being excluded and when their state of exception is recognized and made concrete. Refugees break ‘the identity between the human and the citizen and that between nativity and nationality,’ thereby bringing ‘the originary fiction of sovereignty to crisis’ (Agamben in Owens, 2011: 137; Agamben, 1998; 2005). At a different level, then, the exception (refugees) again seems to construct the norm (citizens of nation-states). While Kahn touches on Agamben’s work, I would be interested to understand more about how he relates these ideas about the ‘exception’ to his own.

By the time I had done all of this thinking, my brain was beginning to boggle again and I was wondering whether Agamben, never mind immigration, had anything to do with Kahn’s ideas after all. So, I decided to return to the realm of concrete action and was delighted (and, I confess, a little surprised) to discover that Kahn has something to offer on this front. In the face of what is a desperate situation on the ground for migrants and seemingly intractable political conflict over comprehensive immigration reform, Kahn helped me to reflect on how we can actually bring about change – even though this is not his goal. First, he points to the intrinsic tension between the system (law) and the individual (sovereign/will) and argues that the latter – individuals making decisions – have an essential role to play. Freedom is rooted in the decision. Principles can only be applied through a decision (89). While liberation theologians have rightly pointed to the importance of structural oppression and the ways in which human freedom is restricted by the contexts in which the marginalized find themselves (it is still, for example, much easier for a white, middle-class US citizen to access high-paying jobs than a black, working-class immigrant), his emphasis on human agency is refreshing. Sometimes, it feels as if the system or the ‘powers that be’ are so complex and overwhelming that we, as individuals, can’t make a difference. I think Kahn suggests that we can. He points out that ‘the state [is] the product of popular sovereignty and the self [is] a participant in the sovereign’ (131). Could we all then, through voting or some other way, take responsibility for shaping the institutions exercising sovereignty and making ‘exceptions’ surrounding immigration? (15) The idea that ‘the state itself [is] a product of our own acts’ (131) mitigated the slight depression which set in when Kahn suggested that conversation wouldn’t really get us very far (135, 154) – something I have always put a lot of stock in. ‘Freedom,’ he says, ‘is a practice we do together’ (103). He challenged some of my preconceptions and reminded me of a phrase of Rumi: ‘Why, when the world is so big, did you fall asleep in a prison of all places?’

Second, his affirmation of imagination as the way to freedom is something that I think we desperately need to hear. We need, Kahn argues, not just the freedom brought through the decision to make an exception and the decision to apply a norm, but also the freedom to think: there is a role for the philosopher, as well as the sovereign and the judge (125). This is where theology comes in. Whereas liberal political theory only offers principles and deduction (125), theology can offer new vision when it both roots itself in the past (a response) and looks to a future as yet unknown (a surprise). Imagination and radical re-enchantment are crucial to freedom (128-129) in a world which, as Walter Brueggemann recognizes, has become numb (2001). So, how might we be able to constitute meaning – and through that, our freedom – without scapegoating and ejecting, without a sovereign decision which results in violence against immigrants or “others”? Could we find meaning and identity in our sacrifice for the “other” (rather than our sacrifice for ourselves or their sacrifice for us) and re-envision a freedom dependent upon mutually beneficial encounters with newcomers? If sacrifice always ‘occurs for the particular community – the sovereign presence’ – and this is always more deeply compelling than ‘a universal idea of justice’ (155), is it possible to imagine a community which includes immigrants (unauthorized as well as authorized)?  At a broader level, could we envision a new immigration regime and/or a global society not structured around the old ‘norm’ of nation-states? Julia Preston, an immigration journalist with the New York Times, pointed out recently that there is currently a ‘systemic dysfunction of law’ in that the laws fail to frame social reality, and as Kahn asserts, ‘Were the norm itself unjust, the right response would be to reform the law’ (35).[2]

I have a few other questions. I wondered whether all of us are ‘constantly framing our own lives, to ourselves and to others, as the subjects of a narrative… our lives always appear to ourselves as the product of a free act’ or whether that is more true for those of us who live with relative privilege in certain parts of the Global North (108)? Does everybody really feel as if his or her life is ‘the product of a free act’? I also wondered whether the current situation in which Jose Antonio Vargas finds himself – a Pulitzer Prize-winning journalist who announced his undocumented status in June and remains in the US – represents what could be called a sovereign exception by default? No proactive decision to deport him, as immigration law would demand, has been taken as yet.

Political Theology is not a hands-on book likely to appeal to activists but it does, I believe, offer a useful (if abstract and obscure at times) ‘reality-check’ concerning powerful underlying national dynamics in the US and beyond. It describes ‘the social imaginary of the political’ (26), helping readers to understand what constitutes meaning. As a result, it has the potential to provoke deeper and more long-lasting transformation than, say, the endless suggestion of ‘band-aid’ quick fixes. Only after understanding what is going on can normative ethics – ideas about what we “should” be doing to construct the road to freedom for all – begin. To end where Kahn himself does: ‘At stake in our political life has been not our capacity to be reasonable, but our capacity to realize in and through our own lives an ultimate meaning. Where we find that meaning, we will find freedom’ (158).


Susanna Snyder is Assistant Professor in Contemporary Society and Christian Ethics at Episcopal Divinity School, Cambridge, MA. Originally from the UK, where she worked as an Anglican priest in northeast London, she s pent a year as a post-doctoral fellow at Emory University before moving to Cambridge in 2010. Her interests include immigration, globalization and the links between social justice, aesthetics and mysticism, and her publications include “Un/settling Angels: Faith-Based Organisations and Asylum-Seeking in the UK,” Journal of Refugee Studies 24 (3) (September 2011), “Encountering Asylum Seekers: An Ethic of Fear or Faith?” Studies in Christian Ethics 24 (3) (August 2011) and Asylum-Seeking, Migration and Church (Farham: Ashgate, forthcoming).


Brueggemann, W. 2001. The Prophetic Imagination. Second edition. Minneapolis, MN: Augsburg Fortress.

Edwards, J. 2007. ‘A Biblical Perspective on Immigration Policy’. In C. Swain, (ed.), Debating Immigration: 46-62. Cambridge: Cambridge University Press.

Groody, D. 2009. ‘Jesus and the Undocumented Immigrant: A Spiritual Geography of a Crucified People’. Theological Studies 70(2): 298-316.

Snyder, S. forthcoming. Asylum-Seeking, Migration and Church. Farnham: Ashgate.


[1] Comment made at “The Futures of Immigration: Scholars and Journalists in Dialogue” Conference, Walter Lippmann House, Cambridge, MA on September 30, 2011. Thanks to Dave True for a helpful conversation on this and following points.

[2] Comment made at “The Futures of Immigration: Scholars and Journalists in Dialogue” Conference, Walter Lippmann House, Cambridge, MA on September 30, 2011.

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