Kierkegaard and Schmitt on the State of Exception

Abstract

This essay begins with a quotation from Carl Schmitt in which he quotes Søren Kierkegaard on the significance of the exception in political theology. The essay is an extended reflection on this quotation within a quotation. Through a comparison of Kierkegaard and Schmitt, the author presents two readings of the state of exception: the first centers on the figure of the sovereign, while the second centers on the figure of the martyr. The sovereign suspends the law from above, while the martyr suspends it from below. In the political sphere, there are two ways of becoming the exception: the sovereign versus the martyr.

In the exception the power of real life breaks through the crust of a mechanism that has become torpid by repetition. A Protestant theologian who demonstrated the vital intensity possible in theological reflection in the nineteenth century stated: “The exception explains the general and itself. And if one wants to study the general correctly, one only needs to look around for a true exception.”¹

In the epigraph above, Carl Schmitt, a twentieth-century German jurist, quotes Søren Kierkegaard, a nineteenth-century Danish philosopher.² Schmitt does not refer to Kierkegaard by name, instead referring to him as “a Protestant theologian.” Kierkegaard and Schmitt have their respective spheres of influence: existentialism and decisionism.³ Existentialism is often associated with the personal sphere, and decisionism with the political. The two spheres are enmeshed in the quotation within the quotation, which is at once personal and political. The two spheres merge in the state of exception.⁴

There are two diametrically opposed ways of reading Kierkegaard’s quotation within Schmitt’s. The first reading, reading A, is an analogous reading. There is an analogy between Kierkegaard and Schmitt on the idea of the state of the exception. On this analogous reading, Kierkegaard’s idea of the exception finds its political expression in Schmitt’s sovereign. The sovereign holds the analogous position in the polis that God holds in the cosmos. Like God, the sovereign is “he who decides on the exception.”⁵

The second reading, reading B, is the opposite: it is a disanalogous reading. It posits a disanalogy between Kierkegaard and Schmitt on the idea of the state of the exception. On this disanalogous reading, Kierkegaard’s idea of the exception does not find its political expression in Schmitt’s sovereign. On the contrary, it finds its political expression in the figure that opposes the sovereign, that is, the martyr. Reading B is a disanalogous reading because, on this reading, Kierkegaard’s exception is nothing like Schmitt’s exception. Schmitt’s exception glorifies the sovereign, while Kierkegaard’s exception honors the martyr. Someone who adopts this disanalogous reading might even go as far as to say that Schmitt was being disingenuous when he quoted Kierkegaard. It was not simply a misquotation, but a distortion, for Kierkegaard’s own view of this matter is the opposite of Schmitt’s.

I present these two readings as an either–or, which is another of Kierkegaard’s ideas.⁶ Readers can decide for themselves which to adopt. I do not intend to resolve the exegetical dispute. It is interesting and valuable in itself to lay out the two alternative readings and put the two options that are on offer on the table. In comparing the two readings, I hope to cast some light on what is at stake in choosing between them and the impact that the choice might have on one’s view of church-state relations. Reading A centers on the figure of the sovereign, while reading B centers on the figure of the martyr. Taking the perspective of the sovereign, one arrives at Christendom. Taking the perspective of the martyr, one arrives at Christianity. Kierkegaard draws a sharp distinction between Christianity and Christendom.⁷ Christianity and Christendom encode different paradigms of church-state relations. Christendom’s sovereign represents the triumphant church, while Christianity’s martyr represents the militant church. The militant church opposes the state, whereas the triumphant church becomes the state.

Reading A: The Sovereign

Reading A analogizes Kierkegaard with Schmitt through an analogy between God and the sovereign. God can suspend the ethical norm, just as the sovereign can suspend the legal norm. The classic example of the divine suspension of the ethical norm is when God commands Abraham to sacrifice Isaac, which suspends the ethical norm against murder. The suspension of the norm creates the state of exception. Without the moment of a pure decision that is freed from the constraints of a norm, God or the sovereign would become “an invisible vanishing point, an impotent thought.”⁸ God would be subsumed within ethics, and the sovereign would be subsumed within the law. God’s ability to make a decision that suspends ethics is what carves out the religious sphere as a distinct sphere from ethics. The sovereign’s ability to make a decision that suspends the law is what carves out a domain of politics that is distinct from the domain of law. The sovereign decides upon the friend/enemy distinction, which is the most political of decisions that lie beyond the reaches of law.⁹ God and the sovereign are superior to ethics and law insofar as they are able to bring about the exceptional. Although in Political Theology Schmitt has in mind the sovereign as a person, there is no reason to limit the sovereign to a person. The sovereign could be personal or popular; sovereignty might reside in a person (such as a king or dictator) or the people (popular sovereignty). We know who the sovereign is when we know whose decision can, in fact, suspend the law.

“The decision on the exception is a decision in the true sense of the word.”¹⁰ The decision to suspend the norm is made in relation to the norm, but not under it. The norm applies to the normal. “[H]e is sovereign who definitely decides whether this normal situation actually exists.”¹¹ If the sovereign decides that the normal situation does not actually exist, then the “[s]overeign is he who decides on the exception.”¹² The paradigm of a situation which requires a political decision is the emergency. The emergency provision in Article 48 of the Weimar Constitution, which was ratified in 1919, provided the immediate background context and impetus for Schmitt’s argument in Political Theology, which was published in 1922.¹³ Schmitt’s state of exception, as much as Kierkegaard’s religious sphere, has its own basis.¹⁴ Neither decision is arbitrary.¹⁵ The state of exception is not subject to any legal criterion, so it inevitably appears arbitrary from a legal perspective, but it is only so from the legal perspective. The state of exception is founded on the emergency. “The exception, which is not codified in the existing legal order, can at best be characterized as a case of extreme peril, a danger to the existence of the state, or the like. But it cannot be circumscribed factually and made to conform to a preformed law.”¹⁶ One cannot foretell or foreclose the contours of the emergency—otherwise, it would not be an emergency—so one cannot draw up a norm for it. The emergency may be real or imagined, but even then, someone needs to decide whether it is real or imagined. That someone is by definition the sovereign. There is thus an ineliminable need for a sovereign to decide when and whether an emergency exists and what is to be done about it. That decision may turn out to be wrong, but a wrong decision is still a decision.

The sovereign stands both within and without the legal system. “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,”¹⁷ which is the same position that God stands in relation to the ethical system. Law and ethics are objective systems, while the exception is based on a subjective decision.¹⁸ It is a subjective sovereign decision. In the rule-of-law rhetoric that is commonplace today, legality is used to create legitimacy. In the rule-of-law rhetoric, a state is legitimate if it is legal, that is, if it abides by the rule of law. The situation is the reverse for Schmitt, who allows for the possibility that it is not legality, but the suspension of legality that creates legitimacy. Legitimacy might come from the suspension of the prevailing system of legality. Whoever is able to accomplish that feat is the sovereign and has the legitimacy of sovereignty. In Legality and Legitimacy, Schmitt argues that the Weimar Constitution contained three extraordinary sources of legitimacy that challenged the otherwise closed system of legality, for example, when “plebiscitary-democratic legitimacy[ was] set against the parliamentary legislative state’s system of legality.”¹⁹ “The meaning of the plebiscitary expression of will is, however, not norm establishment, but decision through one will.”²⁰

Schmitt contrasts the subjectivity of sovereignty with the objectivity of law. The objectivity of law is achieved by “avoiding everything personalistic and tracing the legal order back to the impersonal validity of an impersonal norm.”²¹ The objectivity of law applies to both positive law and natural law, whose lawfulness can be either natural or normative. Physical natural law (such as the law of gravity) is objectively lawful through the operation of nature. By contrast, moral natural law (such as the law of promise-keeping) and human positive law (such as the law of contract) are objectively lawful through the operation of a norm. We call the system of norms that make up moral natural law ethics, and we work out its content by relying on the capacity of human reason to discover the objective telos of human nature. We call the system of norms that make up human positive law the legal system, and we work out its content by relying on the capacity of human reason to trace the chain of validity within the self-contained network of norms that humans, via the sovereign and the state, have constructed.

Against this objective view of law, Schmitt postulates a taxonomy of norm plus exception, where the objectivity of law meets the subjectivity of sovereignty. Schmitt’s norm-plus-exception corresponds to Kierkegaard’s reason-plus-faith. Schmitt’s sovereign can suspend the normative domain of law, just as Kierkegaard’s God can suspend the normative domain of ethics, through a pure decision. In response to God’s decision to suspend ethics, Kierkegaard’s religious person does not remain within the normative system, but steps outside it and into the state of exception that has been opened by God’s suspension of the normative domain.²² This is the leap of faith. The relationship between the religious person and God cannot be exhausted by the domain of ethical norms. The excess is expressed in the idea of the leap of faith. The religious person must connect to God through a leap of faith, which requires the person to be open to the divine suspension of the ethical.²³ For the person to respond to the divine suspension of the ethical, the person must be prepared to suspend reason and rational judgment, which is what is required of Abraham when God asks him to kill Isaac.²⁴ When God asks Abraham to kill Isaac, God is in effect asking Abraham to disregard the ethical prohibition against murder, which is another way of saying that God in that moment has suspended the moral natural law as it applies to Abraham. Schmitt wants to claim for the sovereign the same power of suspension in relation to human positive law. Just as the God who created moral natural law can suspend the ethical system, so the sovereign who constructed human positive law can suspend the legal system. Outside the system of law and ethics, if one were to obey God or the sovereign at all, the obedience would have to be based, not on reason, but on faith.²⁵

Contrary to John Rawls’s claim that a theory of justice can be “political, not metaphysical,”²⁶ the Schmittian counter-claim is that the political is metaphysical. For Schmitt, a continuous thread runs through the metaphysical and the political. The politics of an epoch would mirror its metaphysics.²⁷ Hence, one could draw multiple analogies between the metaphysical and the political. Schmitt illustrates his point through an analysis of the analogy between divinity and sovereignty, and between miracle and exception. Just as God reveals itself through the miracle, so the sovereign reveals itself through the exception. “The exception in jurisprudence is analogous to the miracle in theology.”²⁸ The miracle in theology suspends physical natural law, while the exception in jurisprudence suspends human positive law. Praying for a miracle is to petition God to suspend the normal course of things and act outside the confines of natural law. The miracle is a pure volitional act on the part of God. Miracles show forth “the infinite within the conditions of finitude.”²⁹ Miracles go against the norms of physical natural law, just as God’s command to Abraham to kill Isaac goes against the norms of moral natural law. They are both absurd insofar as they cannot be explained rationally with reference to any general norm. When God intervenes, it is miraculous. When the sovereign intervenes, it is exceptional. Law is general, but the exception is particular. Sometimes, the sovereign intervenes as a deus ex machina to get the state out of a legal impasse; at other times, it does so as “the graceful and merciful lord who proves by pardons and amnesties his supremacy over his own laws.”³⁰ The intervention requires a decision by the sovereign to transcend the law. It is that sovereign decision which makes the intervention exceptional.

There are those who try to eliminate the miraculous in theology and the exceptional in legal theory. In theology, the effort to purge the miraculous is encapsulated in deism. The deistic God is not a deus ex machina, but a deus otiosus, who created the world but does not intervene in the affairs of the world. In the deistic worldview, there can be no miracles and there is no point in praying to such a God for help. In legal theory, the effort to eliminate the exceptional is encapsulated in Kelsen’s Pure Theory of Law. ³¹ Kelsen was Schmitt’s main target in Political Theology, for Kelsen’s pure theory of law is the direct antithesis of Schmitt’s theory of the sovereign exception to the law. In Kelsen’s view, a state action must be tied to a norm, and one norm must be traced to another norm, and ultimately back to the Grundnorm. Without a norm, there is no state action, for the action would not be attributable to the state. In response to Kelsen’s view, Schmitt might well reply: “And yet the state acts.” The state acts through the sovereign. Kelsen’s theory leaves no room for the exception, while Schmitt’s theory is all about the exception. In Schmitt’s view, if there is no miracle, then there is no God; if there is no exception, then there is no sovereign. In the former case, there are only natural laws; in the latter case, there are only positive laws. Thus, Kelsen’s theory has laws, but no sovereign.

Sovereignty, as a theoretical construct, carries with it theological resonances.³² It brings with it an entire religious history. The concept of sovereignty began with the sovereignty of God as the sovereign creator of the universe, who set in train the laws of nature (both physical and moral) and who retains the sovereign prerogative to step outside the laws he created through the performance of miracles. The sovereign monarch picked up this concept of sovereignty, as the concept moved from the domain of the theological to the political. The lord of the realm could suspend positive laws, just as the Lord of the universe could suspend natural laws. The exercise of equity transcended the common law, while the power of pardon transcended criminal law. Both created exceptions to the law, while affirming the general validity of the law. Like what God does in the miracle. The exceptional moment can take place within the legal system, such as in the exercise of equity and the power of pardon, or without the legal system, such as in the state of emergency.

Ordinarily, one relates to God by following the moral laws that God has laid down, but extraordinarily, God can suspend the ethical system. The same goes for the sovereign. Only God or the sovereign, who exists both within and without the norm, can suspend the norm. An individual, who is subject to the norm, cannot suspend the norm for themselves. It is God, not Abraham, who suspends the ethical norm against murder when he commands Abraham to sacrifice Isaac. In committing an immoral act, an individual breaks (not suspends) an ethical norm, which makes the person a wrongdoer. In committing an illegal act, an individual breaks (not suspends) a legal norm, which makes the person a criminal. Legality and illegality are ordinary normative concepts, whereas the state of exception is extraordinary. Ordinarily, one relates to the sovereign by following the positive laws that the sovereign has laid down, but extraordinarily, the sovereign can suspend the legal system. A theory of law needs to distinguish the ordinary from the extraordinary. The ordinary is the “normal, everyday frame of life,” to which general legal norms refer.³³ In ordinary times, the sovereign is invisible, and everyone is simply told to do as the law says. However, in extraordinary times, the invisible sovereign becomes visible in the state of exception, when it decides that the ordinary no longer holds.

The sovereign reveals itself in that moment of decision. The sovereign is the one who decides “whether there is an extreme emergency as well as what must be done to eliminate it.”³⁴ The direct appearance of the sovereign, like the direct appearance of God, is always extraordinary. In theology, if we lose sight of the extraordinary, we will lose sight of God, as theism gives way to deism and eventually to atheism. In jurisprudence, if we lose sight of the extraordinary, we will lose sight of the sovereign, which is Schmitt’s problem with Kelsen’s jurisprudence. A jurisprudence like Kelsen’s, which is “concerned with ordinary day-to-day questions has practically no interest in the concept of sovereignty.”³⁵ The consequence of losing sight of the sovereign is that Kelsen’s jurisprudence loses the capacity to deal with the extraordinary, when the genuine emergency and the genuinely out-of-ordinary situation arises. Kelsen’s jurisprudence moves from law to chaos, whereas in Schmitt’s jurisprudence, the sovereign steps in between law and chaos. “In such a situation it is clear that the state remains, whereas law recedes. Because the exception is different from anarchy and chaos, order in the juristic sense still prevails even if it is not of the ordinary kind.”³⁶ The sovereign steps in to preserve order in the absence of law.

In place of Kelsen’s Grundnorm, Schmitt posits the sovereign exception as the outer limit of law.³⁷ Just as God can act supernaturally, that is, outside the confines of natural law (both moral natural law and physical natural law), so the sovereign can act extralegally, that is, outside the confines of positive law. In the latter case, when the sovereign acts extralegally, the sovereign is not switching from positive law to natural law. Rather, the sovereign is stepping from law to no-law. The sovereign exception is not natural law. On the contrary, it is law-less. Schmitt’s view of state law is positivistic: law is posited by the sovereign, and it can therefore be suspended by the sovereign. Suspension is a possibility that Kelsen seeks to deny in his pure theory of law, but which Schmitt makes foundational in his alternative theory of the sovereign exception. It is the direct command of God that first suspends the ethical (that direct command is always extraordinary). In response to God’s command to kill Isaac, Abraham takes the leap of faith (faith in God), and thereby enters the extra-ethical religious sphere that has been opened by God’s command. Similarly, it is the decision of the sovereign that first suspends the law. In response to the sovereign’s decision, the subject takes the leap of faith (faith in the sovereign), and thereby enters the extra-legal state of exception that has been opened by the sovereign’s decision. The leap from the ethical to the extra-ethical and from the legal to the extra-legal is done with “fear and trembling,” for in the former case, one is giving up the security of ethics for the incomprehensibility of the extra-ethical, while in the latter case, one is giving up the security of law for the unpredictability of the extra-legal.

On Kierkegaard’s interpretation of Abraham’s dilemma when he is confronted with God’s command to kill Isaac, there remains an extra-ethical space, into which Abraham is called to enter. Taking this narrative episode as an interpretive starting point, one might then jurisprudentialize Kierkegaard’s theology by analogizing God with the sovereign. The extra-ethical space becomes the extra-legal space. God’s suspension of ethics becomes the sovereign suspension of law. On this reading, Kierkegaard’s existentialism finds its counterpart in Schmitt’s exceptionalism. Just as God retains the ability to act outside of natural law, so the sovereign retains the ability to act outside of positive law in times of emergency. Kelsen’s norm-grounded rationalism leads him to ignore the emergency, which explains why he “does not know what to do with the exception,” for “the exception confounds the unity and order of the rationalist scheme.”³⁸ On Schmitt’s account, law is ultimately founded, not on the Grundnorm, but on the exception, which is a pure decision and not subsumable under a norm,³⁹ just as faith is ultimately founded, not on the ethical norm, but on the suspension of the ethical. In Kierkegaard’s words, which Schmitt cites approvingly, “if one wants to study the general correctly, one only needs to look around for a true exception.”⁴⁰

Reading B: The Martyr

Reading A posits an analogy between Kierkegaard and Schmitt. Interpreting Kierkegaard’s words consistently with the passage in which Schmitt embeds them, reading A locates both thinkers within the same metaphysical paradigm, in which God can suspend natural law just as the sovereign can suspend positive law. Reading B reverses that interpretation. In reading B, instead of the sovereign, the martyr is foregrounded. On this reading, Kierkegaard’s exceptional figure is the martyr, which is at the polar opposite of the sovereign. Reading B posits a disanalogy between Kierkegaard and Schmitt on what constitutes the exception.

As a starting point, consider the following passage from Kierkegaard’s Papers and Journals: “The first form of rulers in the world were ‘the tyrants,’ the last will be ‘the martyrs’ … The tyrant, himself with a craving for power, compels by force; the martyr, in himself unconditionally obedient to God, compels through his own sufferings. So the tyrant dies and his rule is over; the martyr dies and his rule begins.”⁴¹

Kierkegaard celebrates the martyr and condemns the tyrant. If one understands the tyrant as someone who imposes their will on others, by force, if necessary, then Schmitt’s sovereign is closer to the tyrant than the martyr. One might substitute the term tyrant with sovereign and say “The sovereign dies and his rule is over; the martyr dies and his rule begins.” Kierkegaard cannot be enlisted to serve Schmitt’s theoretical agenda because Kierkegaard’s own position is, in fact, anti-Schmittian. Where Schmitt wants to use the idea of the exception to elevate the state and the sovereign, Kierkegaard uses it to celebrate the martyr in opposition to the state and the sovereign.

If we label Schmitt a theorist of the state, then we might label Kierkegaard a theorist of the anti-state. The state demands obedience from all who live under it. In extremis, Schmitt’s theory of the state may lead, as it did for Schmitt himself, to a Nazi state. That happens when, as Giorgio Agamben argues, a zone of indistinction is created between norm and exception: “this confusion between the exception and the rule was precisely what the Third Reich had concretely brought about.”⁴² When the exception becomes bound and blurred with the rule, with obedience being demanded for both, “the juridico-political system transforms itself into a killing machine.”⁴³ A theory of the state is concerned with obedience, while a theory of the anti-state is concerned with disobedience.⁴⁴ One of the earliest anti-statist figures in Western political thought is the martyr. The word martyr is derived from the Greek word for witness (mártur), specifically a witness to the truth. In bearing witness to a higher order of truth, the martyr challenges and relativizes the temporal order of the state. The rule of the Roman state counts for naught in the face of the rule of God. In the kingdom of this world, the martyr bears witness to a kingdom that is not of this world.

Christianity started off as a religion or, as some would say, a cult of martyrs in opposition to the Roman state.⁴⁵ Christ himself died on the cross to bear witness to the truth of his message, and his apostles would soon follow suit. In its early days, the Christians left behind, not sacred texts, but bloody bodies. The early Christians had no arms or army. All that the faithful had was their faith. They were enthusiastic—en-theos—filled, as it were, with the spirit. Imagine the awesome (and awful) picture of the lone Christian surrounded by hungry lions and angry Romans. Kierkegaard would call this the “militant Church.”⁴⁶ After the conversion of Constantine, Christianity made peace with the Roman state, which meant that its followers had to be more peaceable, but the memory of martyrdom remained deeply etched in their collective cultural consciousness. The Christians in peacetime were reminded of their bloody past through the martyrologies that were written to celebrate the lives of the martyrs and the feast days that were set aside to commemorate their deaths. The death anniversaries of the martyrs were considered feast days for the celebration of their sacrificial death, which was larger than life. They who were reviled in life are revered in death.

What makes the martyr exceptional is their willingness to suffer. As Kierkegaard writes in the Purity of Heart, a person should only will one thing—the good—and “if a man shall will the Good in truth, then he must be willing to do all for the Good or be willing to suffer all for the Good.”⁴⁷ In willing the good, one must also be willing to suffer. Willing to suffer is different from just suffering. Most of us suffer unwillingly. The martyr, by contrast, wills to suffer. They could do so either proactively by seeking out opportunities for martyrdom, or reactively by embracing martyrdom when it is thrust upon them. In either case, a degree of conscious and considered choice is required. They are more than simply helpless and hapless victims of state violence. They take ownership of their suffering by willing it to be so. There is a crucial difference between terrorists and martyrs. Terrorists are willing to kill and be killed. Unlike terrorists, martyrs do not kill, but allow themselves to be killed. Martyrs only subscribe to the second prong of the terrorist’s two-pronged method. What the terrorist does is reprehensible, but comprehensible. The willingness to kill and be killed is the standard method of warfare. In contrast to the terrorist, the martyr’s willingness solely to be killed, without killing, is bewildering. It is divine madness. It is as mad as God choosing to die on the cross.⁴⁸

Martyrs choose to suffer, just as God chose to become human to suffer death on the cross. “Nothing in the world has ever been so completely lost as was Christianity at the time that Christ was crucified … and yet in this same instant, eternally understood, He had accomplished all.”⁴⁹ Suffering for the good is all. In the imitation of Christ, the martyr worries not about what is to come out of their suffering. Their suffering suffices; nothing more is needed. The world judges them by making them suffer; they judge the world by suffering. “His suffering is an act of judging, because the surrounding world becomes manifest by the manner in which it lets him suffer.”⁵⁰ Confronting suffering in this way is like confronting one’s own death: it has to be done alone. Martyrs suffer unto death. Suffering, like death, is a solitary experience. Only the self who is conscious of himself or herself as a solitary self can “will the good” and “will to suffer for the good,” which for Kierkegaard is really one and the same thing. The solitary self does not hide amid the crowd. The solitary self stands alone and is unafraid, “for why indeed does a man rush into a crowd except because he is afraid.”⁵¹

This solitary suffering self is Kierkegaard’s exceptional individual. His paradigm of the exceptional individual is the suffering martyr, not the almighty sovereign. The sovereign embodies the body politic, whereas the martyr is the single individual who puts their lone body on the line to oppose the body politic.⁵² Where Schmitt is statist, Kierkegaard is anti-statist. Schmitt’s sovereign is willing to kill to defend the state, whereas Kierkegaard’s martyr is willing to be killed to oppose the state. The martyr is afflicted by the suffering that the sovereign inflicts. Given the value that Kierkegaard places on the willingness to suffer, it is no surprise that Kierkegaard would stand on the side of the suffering martyr against the sovereign. Suffering is kenotic: in emptying the self of its attachments to the things of this world, it empties the sovereign of its worldly power. The moment when the martyr dies to the world is the moment when the finite reaches its limit and the infinite breaks in.⁵³ The martyr suspends “the order of nomos, the order of worldly sovereignties, and replace[s] it by the mystery of suffering.”⁵⁴ The model is, again, Christ on the cross, who “humbled himself and became obedient unto death, even death on a cross.”⁵⁵ On the cross, Christ empties himself, and in emptying himself, empties the sovereign powers of the world of their claim to power. “Christ’s crucifixion is love’s judgement upon the nomos of the world.”⁵⁶ Following Christ, the martyr’s death, too, is a judgment upon the nomos of the world. What is exceptional here is “not the self-assertion of a sovereign figure; rather, it is the decision of faith, taken at the absolute moment of exception, by renouncing all sovereign powers and the force of its law.”⁵⁷ Schmitt’s attempt to inject power into the sovereign figure is counteracted by Kierkegaard’s attempt to eject power from the sovereign figure through the figure of the suffering martyr, which makes Schmitt’s quotation of Kierkegaard in support of his argument particularly jarring. Kierkegaard is trying to do the opposite of what Schmitt is doing.

Martyrdom is an act of political defiance that is marked by a refusal to submit to the authority of the state. Martyrs are religious figures who enter the political arena to die a politically symbolic death. Death is the martyr’s political speech. The theology of martyrdom winds its way into the ideology of civil disobedience. Civil disobedience, like sovereignty, is a theoretical construct with theological resonance. The civilly disobedient subject breaks the law and bears the cost. The cost could range from a fine to a jail term to the firing squad. To be willing to bear the cost, one must be committed to the cause. The higher the cost, the deeper the commitment that is required. The highest cost that one can pay is one’s life. For that reason, the paradigmatic precedent of the civilly disobedient subject is the martyr. The martyr breaks the law, and bears the cost of the cross. The martyr must actually die in order to qualify as a martyr, but the same requirement of death does not apply to the civilly disobedient subject. What is required, however, is the insistence “in the face of overwhelming force that if there is to be continuing life, it will not be on the terms of the tyrant’s law.”⁵⁸ Although the civilly disobedient subject need not actually die, death at the hands of the state remains in the background of all anti-state resistance. “The possibility of martyrdom, of a certain death, lies at the root of any genuine testimony.”⁵⁹

Reading A versus Reading B: Sovereign versus Martyr

Schmitt’s quotation of Kierkegaard opens up two ways of thinking about the state of exception: the sovereign versus the martyr. The sovereign suspends the law from above, while the martyr suspends it from below. Both the sovereign and the martyr create states of exception from the law. They are both ready to act independently of the law. Reading A illustrates the sovereign state of exception, while Reading B provides a martyrological account of the state of exception. The sovereign takes exceptional measures to defend the state, while the martyr takes exceptional measures to challenge the state, which makes the former statist and the latter anti-statist. The sovereign creates the state of exception by suspending the law in relation to the body politic through their willingness to use force independently of the law. The martyr creates the state of exception by suspending the law in relation to themselves through their willingness to suffer the use of force. They are willing to endure the suffering inflicted on their bodies by the body politic. Their sacrifice marks the passage into the sacred. Sacrifice is not only conceptually but also etymologically linked to the sacred: to sacrifice, sacrum facere, is to make sacred. Both the sovereign and the martyr are sacral figures. The sovereign enters the sacred zone by sacrificing the lives of others. Martyrs enter the sacred zone by sacrificing their own lives.

The sovereign exception challenges the foundation of the modern state by undermining the liberal commitment to the rule of law. In contrast, the martyrological exception challenges the foundation of the modern state by undermining the central premise and promise of self-preservation, as articulated by political theorists in the Hobbesian school of thought. In so doing, the martyr puts the state in its place. Putting the state in its place means subjecting the temporal order of the state to the scrutiny of a higher order of truth. The martyr reconfigures the relationship between the self and the state. The infinite claim that the higher order of truth makes on the self goes far beyond the narrow aim of self-preservation that Thomas Hobbes assumes for the self. Hobbes’s state is created to advance the rational goal of self-preservation, which is the presupposed aim of every human in the state of nature. The state is created to secure the self-preservation that could not otherwise be secured in the state of nature. The sovereign—also known as the Leviathan in Hobbes’s theory—is needed for survival.⁶⁰ Martyrs challenge that central premise through their willingness to cast self-preservation aside and embrace death. The martyr’s willingness to suffer and die is so unusual as to be exceptional—not only normatively but also naturally—for it goes against the natural human instinct, as Hobbes saw it, of self-preservation. There is thus a kind of mysteriousness to martyrdom.

Although Schmitt’s theoretical project is not exactly identical to that of Hobbes, it is very much inspired by Hobbes. To Schmitt, “Hobbes remains an incomparable political teacher.”⁶¹ Schmitt ends his book on Hobbes with the following melodramatic exhortation: “Across the centuries we reach out to him: Non jam frustra doces, Thomas Hobbes! [Thomas Hobbes, now you do not teach in vain!]”⁶² The state that emerges in Hobbes’s theory is a monstrosity that combines god and man, animal and machine, which Hobbes christened the Leviathan. The antagonist to the Leviathan is the Behemoth. The Leviathan is a sea animal, whereas the Behemoth is a land animal. Hobbes intimates that “‘Behemoth against Leviathan’ would be the proper title for an endeavor to refute the leviathan,” with the Behemoth acting as “a symbol of the anarchy brought about by the religious fanaticism.”⁶³ If the Levithan represents the sovereign, then the Behemoth represents the religious fanatic, who (for Hobbes) is personified in the martyr. Leviathan against the Behemoth is really the Sovereign against the Martyr. One may place Schmitt and Hobbes on the side of the sovereign, and Kierkegaard on the side of the martyr.

Although Hobbes assumes the desire to survive to be universal, he concedes that “there exists a category of man who does not desire the preservation of his own life at all costs: a religious martyr.”⁶⁴ That concession to the martyr, in the face of his assumption of the universality of the desire for survival, causes a serious dent in his theory. Hobbes fixes the dent in his theory by concentrating all powers in the figure of the sovereign and endowing the sovereign with the supreme ability to compel obedience. Notwithstanding the concentration of power in the sovereign, there is really nothing that the state, or the theorist of the state like Hobbes, can do to eliminate the possibility of martyrdom. The martyr will still disobey and pay the price of death. The martyr confronts the sovereign with death. The fact that martyrs are willing to do that, and that they are able to transcend the human instinct for self-preservation, makes them exceptional individuals, who will always be an exception to the state. There is nothing that a state can do to someone who does not fear death. As the martyr is willing to suffer, the more suffering that the state inflicts on the martyrs, the more martyrs will embrace that too. Martyrs are, always and everywhere, a threat to the state. The wielding of the sovereign right to kill is only effective against those who do not want to die. The sovereign right to kill is blunted by the martyr’s willingness to be killed. The existence of martyrs and the possibility of martyrdom is the aporetic moment in Hobbes’s theory of the state, which threatens to tear his state apart. This tear in the theory puts a halt to the otherwise seamless move from the state of nature to his idea of an absolute state.

Western political theology is centered on the messianic event: the Messiah has come and will come again. When the messianic vision is transposed from the religious to the political sphere, the result is often subversive of the powers that be. Under the glare of the messianic event, the emperor is shown to have no clothes, and all worldly authority is shown to be hollow. The latent and potent force of this kind of political theology of the anti-state is what worries state theorists the most. What really troubled Hobbes (the preeminent theorist of the state) was not the institutional church, but the messianic martyr who is willing to suffer unto death to bear witness to the truth. Hobbes’s Leviathan was meant to banish this kind of anti-statist political theology, but that did not work. “The mystical and messianic impulses cultivated by the biblical tradition survived,” and “with strange regularity they have burst forth in countless forms throughout the West” over the centuries—from the religious past to the supposedly secular present.⁶⁵ This kind of apocalyptic anti-state activism stands in a long tradition of Western political thought that stretches all the way back to the martyrs.

Reading A appropriates the messianic exception and ties it to the sovereign exception by positioning the sovereign as the messiah. In contrast, Reading B opposes the messianic exception to the sovereign exception. The martyr partakes in the messianic exception, not the sovereign exception. The messiah, in the Christian tradition, is Christ crucified. The messianic exception is initiated by suffering. The messiah inaugurates a new age, not through domination, but through suffering. The martyr, who follows in the footsteps of the messiah, must be prepared to do likewise. Writing in the Jewish tradition, Walter Benjamin makes a similar point when he states that suffering must reside in the “immediate messianic intensity of the heart.”⁶⁶ Jacob Taubes, who draws on Benjamin’s notion of the messianic exception, writes that “Schmitt thinks apocalyptically, but from above, from the powers that be; I think from the bottom up,” with the consequence that “Schmitt’s conception of the ‘state of exception’ is dictatorial, dictated from above; in Benjamin it becomes a doctrine in the tradition of the oppressed.”⁶⁷ Martyrdom, as the final act of defiance, is the last resort of the oppressed. The sovereign acts from a position of immense political power. In contrast to the sovereign, the martyr appears to act from a position of powerlessness. The radical disempowerment of the martyr leads the martyr to take the most radical action and make the absolute sacrifice, that of the martyr’s own life.

Although politically powerless, the martyr might come to acquire and amass great moral power through their death, which explains Kierkegaard’s maxim that “the tyrant dies and his rule is over; the martyr dies and his rule begins.”⁶⁸ The martyr will not rule directly (for the martyr is dead by definition), but the martyr will rule indirectly through the principles that their death signifies. Some principles are worth their weight in blood. Tertullian famously said that “the blood of Christians is seed” of the church.⁶⁹ The sovereign dominates the legal order by suspending it, while the martyr challenges the legal order by defying it. Martyrdom is a political act, and for that reason, it cannot be reduced simply to the category of the criminal. Unlike criminals, martyrs are not simply breaking the law; rather, they are challenging it, by claiming for themselves the moral right to live outside the law. The power of the sovereign comes from its ability to kill, while the power of the martyr comes from its willingness to be killed. The sovereign has the constituent power to create a legal system, but the martyr possesses the destituent power to drain a legal system of its legitimacy through disobedience.⁷⁰ The sovereign seeks to institute the state of exception, where the law is suspended, while the martyr seeks an exception from the state, where the authority of the state itself is nullified. The martyr’s exception from the state is a form of resistance against the sovereign state of exception.

Martyrdom is messianic. The messianic exception, which the martyr partakes in, is an exception that is built on a fundamental break between the temporal order of this world, which is passing away, and the higher order of truth, which is eternal and everlasting. In contrast to the sovereign’s constituent power, the martyr’s destituent power does not seek to recreate a new temporal order. The contrast between sovereignty and martyrdom, and between the sovereign exception and the messianic exception, lines up with a pivotal distinction that Kierkegaard draws between Christendom and Christianity. The ideology of sovereignty belongs to Christendom, while the spirit of martyrdom belongs to Christianity. Christendom draws on the sovereign’s constituent power to create a state here on earth, whereas Christianity looks forward to the end of time when all earthly powers will be destroyed.

When Schmitt says that “all significant concepts of the modern theory of the state are secularized theological concepts,”⁷¹ he is really talking about the political theology of Christendom, when the church became allied with and tied to the powers of this world. Schmitt’s Christendom does not bring forth the final kingdom of God, but holds it back. Christendom and the state become the katechon, the restrainer, who holds back the eschaton. ⁷² In contrast to Christendom, Christianity is otherworldly: as Christ said, “My kingdom is not of this world.”⁷³ The otherworldliness of the martyr involves literally dying to the world. Where the sovereign concentrates power in the world, the martyr takes leave of it, leaving behind the world and its pomp. Christianity’s “dangerous tendency to introduce rebellion into the political realm” through martyrdom is tamed by the katechon of Christendom which ties religion to sovereign power.⁷⁴

The early church was not triumphant, but militant. In the militant church, “a Christian was recognizable by the opposition one suffered,” but in the triumphant church, a Christian “was recognizable by the honor and esteem one enjoyed.”⁷⁵ Kierkegaard charges the triumphant church for forgetting its militant origins: “once the objection against Christianity … was that it was unpatriotic, a danger to the state, revolutionary—and now Christianity has become patriotism and a state church.”⁷⁶ The militant church opposes the state, whereas the triumphant church becomes the state. The former is Christianity, while the latter is Christendom. In Christendom, the messianic message “was domesticated and came to an arrangement with the world and its powers.”⁷⁷ The messianic exception, if it is to survive at all, must survive, ironically, in death—in the death of the martyr. It is the martyr in the militant church that embodies the oppositional spirit of early Christianity. “The Church militant strives to be a community of individuals who exist ‘without authority,’”⁷⁸ in opposition to the power and glory of the sovereign who sits atop the institutional and hierarchical structure of the state. We are thus, once again, confronted with the choice: either sovereign or martyr.