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Taking Exception: Paul Kahn Rocks the Liberal Boat

In the October 13 issue of the New York Review of Books, Mark Danner published a critique of the Bush administration’s policy on torture, under the title “Our State of Exception”. He didn’t give Carl Schmitt (or Paul Kahn) credit, but he could have. When the intellectual history of the past generation is written, one of the stranger items will be the unexpected resurrection of a sinister figure who might have seemed buried and forgotten, except for his admirers on the far right wing of respectable discourse.

This is the third in an eight part series discussing Paul W. Kahn’s recent book Political Theology: Four New Chapters on the Concept of Sovereignty. The series will posts on Mondays and Thursdays.

In the October 13 issue of the New York Review of Books, Mark Danner published a critique of the Bush administration’s policy on torture, under the title “Our State of Exception”. He didn’t give Carl Schmitt (or Paul Kahn) credit, but he could have. When the intellectual history of the past generation is written, one of the stranger items will be the unexpected resurrection of a sinister figure who might have seemed buried and forgotten, except for his admirers on the far right wing of respectable discourse. Then the putative End of History sent secular leftists scurrying for new cover after liberal democracy’s triumph in 1989. That they found it in Carl Schmitt is surprising, even if it was the radical left that was now (in a phrase made famous by romantic conservatives sixty years ago) standing in front of History shouting “Stop!”  Not a happy posture for a party/mentality that vaunted itself as being on the right side of history. But even more surprising because the religious roots of Schmitt’s bleak outlook should have made him anathema to anyone who regarded religion of any kind, Christianity included, as mere epiphenomenon (I take as convincing Heinrich Meier’s thesis about the theological basis of Schmitt’s oeuvre).

Now Paul Kahn, author of several books on American politics and jurisprudence, has presented us with a fascinating new book on the Schmittian topic of “political theology”. The category, or the term, has an interesting history. Leaving aside its deep roots in antiquity (Stoicism seems to have been the originator), it was Schmitt’s little treatise of 1922 that restored it to modern usage, though the idea itself, if not the phrase, is certainly found in Rousseau and in Tocqueville. Schmitt anticipated other conservative German Christians, who took it up a decade later when the National Socialists stormed onto the scene and threatened to leave church people standing forlornly at the railroad station as History, in the form of the Nazi express, steamed off into the future, taking the rest of Germany with them. Erik Peterson’s 1935 treatise on “Monotheism as a Political Problem” launched a theological critique that, along with the quick discrediting of its Nazified Christian advocates, put the phrase into mothballs. There it lay until it was retrieved by leftwing Christians in the heady days of the late sixties and early seventies. They argued that Peterson’s rejection of any such thing as a Christian political theology applied only to the wrong kind of political theology, namely, a theology of legitimation, but not to a truly critical theology. Christian theologians since then have presumed that “political theology” necessarily means some kind of critical stance on existing political, social, or economic systems.

If this background is well known to all of you, I ask your pardon. I lay it out because I want to explain why the approach in Kahn’s book rather caught me by surprise (despite the attention already paid to it, I have avoided reading any reviews). There is first of all his clever device of using each chapter in Schmitt’s book as a point of departure for his own, very different project. I realize fully that he does not intend his book as an interpretation or even a real critique of the original Political Theology, but as a conversation with that book, a conversation inspired by the politics of our own time, a politics in which liberal democracy still seems the only game in town, though no one today is talking about the end of history.

Second, there is the particular sense in which Kahn understands political “theology”. Kahn insists his project is utterly descriptive and not a normative endeavor at all. (That is in keeping with at least one facet of Schmitt’s project, though not with all of it.) So what’s theological about it? Nothing at all in any traditional sense of theology.  Prof. Kahn teaches law at a secular law school and would not be caught dead appealing to theological standards derived from scripture or tradition. As he says, “history” (that word again) makes such appeals beside the point. This would seem to put him in the camp of the many current analysts of liberal democracy and its discontents who rule out the importation of religious arguments and warrants in discussions of policy, law, and theory. In short, he’s a secular liberal too, apparently like everyone else with whom he’s in conversation. From a Catholic perspective, it’s disconcerting to see how casually the natural law tradition is apparently dismissed (John Finnis, say what you will about his position on birth control, deserves more respect than he gets in a condescending footnote), and with it any attempt to present faith and reason as in (asymptotic) harmony. In the conceptual language in which I was educated, Prof. Kahn is a nominalist and a voluntarist, and proud of it. I grew a little weary at all the muscular invocation of “will” over against impotent reason and understanding. (In this sense too he stands in Schmitt’s train — Schmitt’s Catholic critics back in the 1920s were apoplectic at his deviance from what I will call the harmonial aspect of the Catholic tradition.)

However — and this is the third and the most important reason why I was taken by the book — I want to recognize that Kahn makes powerful points about serious contradictions in liberalism and liberal democracy’s professedly limited government. When your state’s security is predicated on a willingness to end planetary life as we know it, you are well past “limits” of any kind. And since September 11, to return to the Danner article mentioned above, we have pursued our so-called “war on terror” with tactics that ex professo sit outside accepted international and even national norms. Indeed, the administration’s defense of its policies on torture and “rendition” says explicitly that the president is beyond the law. One could hardly find a neater statement of the Schmittian sovereign and his power to decide. In my arguments with someone like my friend Bill Cavanaugh, I have not taken seriously enough his criticisms of the measure of violence that our form of liberal democracy, since the end of World War II anyway, has come to rely on. And now we’re taking out (nice euphemism) real or suspected al-Qaeda operatives with mechanical drones wherever and whenever we find them.

This brings me to a theoretical issue I have with the book. Kahn argues that secularization has been a one-way street: yes, church and religion have been secularized and reduced to the private sphere; but the state has not. The modern state’s secularity is only apparent but not real. A good portion of Kahn’s book is dedicated to stripping away the mask. The state has in actuality appropriated for itself the sacrality that once accrued to the church. The state claims the right to make you put your life on the line and to kill or be killed, if the state is faced with an existential threat (one more time, Carl Schmitt). Modern (= liberal) theory says the state was founded on the social contract. But the modern state was actually created via violent revolution. Its foundation is therefore in bloody sacrifice. And whenever the state is compelled to respond to an enemy, it continues to demand that its citizens sacrifice. Sovereignty itself is de facto a religious reality (Schmitt’s celebrated thesis), even though the liberal state would prefer to disavow sovereignty as much as possible — until the moment of existential threat arrives. Kahn runs his thesis through other aspects of the liberal state as well, such as our reliance on the Supreme Court as the unimpeachable decider of otherwise unresolvable conflicts, like abortion.

All of that said, I’m not sure what’s gained by putting religious concepts (theology, revelation, sacrifice, faith, etc.) to work in exposing liberalism’s internal contradictions. Every one of those terms is used in an analogous sense only. Kahn, as he admits, has no interest in trying to smuggle religion back into the public square. To me it looks as though the theological categories are being made to do rhetorical work that serves purposes that have nothing to do with the tradition that actually created the categories. I am not suggesting this is, so to speak, a case of intellectual property theft. But it does seem to involve a kind of utilitarian misappropriation. Perhaps what is at issue here is a disagreement about the nature or the definition of religion. This of course is a long-standing topic of debate among scholars of religion. I tend to side with the view that says “religion” necessarily involves deities of some kind or other. But secularization has emptied the world of gods. Weber was right — it is a disenchanted world. Popular sovereignty is not a deity, even though we like to say Vox populi, vox Dei (it’s engraved on the wall of the Ramsey County Court House in St. Paul). The generation that fought the Revolution and framed the Constitution admired paintings of Washington’s apotheosis and may even have half-believed it was real. But we don’t, at least most of the educated among us don’t, including, I imagine, Paul Kahn’s colleagues at Yale.

To argue further would entail a discussion of the nature and implications of secularization and the character of the actually-existing measure of pluralism we still live with. I am going to have to stop at this point, however.  Let me conclude by saying that it was an intellectual treat to read this book, which will certainly leave its mark in how I think in the future about our ostensibly limited government.


Michael Hollerich is professor of theology at the University of St. Thomas, in St. Paul, Minn., where he has taught since 1993. Previously he taught at Santa Clara University and Luther College. His academic training is in the history of Christianity, with a primary specialization in the ancient period and a secondary interest in modern German church history and theology. His most recent publication is his translation of selected papers of Erik Peterson, including Peterson’s Monotheismus als politisches Problem.

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