Anarchy, Sovereignty, And the State of Exception. Schmitt's Challenge_Michael McConkey

8/11/2019 Anarchy, Sovereignty, And the State of Exception. Schmitt's Challenge_Michael McConkey

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416 M ICH AE L MC CON KEY

Th e revival of Schm ittian scholarship in recent times has included an all too common tendency to dismiss his critiques as a flinction of his practical politics. He was relentless critic (some might say intellectual saboteur) of the Weimar Republic an

apparently an enthusiastic embracer of National Socialism when it came to powerHe thereafter seems to have engaged in intellectual dishonesty of Orwellian proportions in his support of the Nazi regime. The final word on his collaboration, thoughremains contested.^ Nevertheless, however distastefiil may be the character or modveinvolved, ad hominem argum ent remains only ad homine m argum ent. If Schm itt claims are not true or their import is not what he alleges, we must demonstrate thathey are so on intellectual grotinds, not by resort to biographic demonology.

H ere I explore Schm itt s dev elopm ent of the nature and relevance of the state o

exceptionexception to the legal norm s and rou dn e lawin order to isolate the corchallenge that he poses to anarchist theory. The key concept to grasp is his nodonof sovereignty. As we unpack the historical ground of his concept of sovereigntythough, the shortcomings of his purview will become evident. His pardal story lendsitself to his valorizadon of sovereignty as the soludon to the state of excepdon, whicis uldmately an inevitable polidcal fact. That very pardality, however, misleads himinto underappreciadng the larger consequences of that same history. Where Schmitsees only a liberalism defeated by the gruesome realides of the French Revolution, wider purv iew reveals no t a defeat, b ut a renewed radicalism of liberty s longerevolud on. In liberalism s com eupp ance , anarchism was born. Failing to recogn izthis historical fact or to ap preciate its theo red ca l relevance leaves Sc hm itt s claim fosovereignty, as the inescapable soludon to the state of excepdon, inadequatelydefend ed. It is necessary first to un de rsta nd this historical lacuna in Schm itt s analysif his more general blindness to the free-market alternadve is to be appreciated.

Faced with the state of excepdon, the decentralized, spontaneous, emergentadapdve system of the free-market laboratory of experimental trial and error turns outo be not merely an alternadve, but the only viable opdon that is not suscepdble t

becoming a cover for advancing special intereststhat is, the only opdon that doeno t actually derail genuin e so lud on seeking. This system s rew ards for successdiscovery of widely preferred opdons alone provide the means for the most committed to pool their effort and resources toward finding the soludon that the state oexcepdon requires. And, indeed, this conclusion holds ever more strongly as the threatconverges toward a truly existential one Like Schmitt, those, such as the global-warming lobbyists, who presume that only the sovereign state has the integritydisin teres t, and social ben evo lence necessa ry to carry o u t this missio n suffer from

inadequate acquaintance with the anarchist theoredcal tradidon. They therefore musreceive the same verdict as he at the hands of reason.


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A N A R C H Y, S O V E R E I G N T Y , AND THE S TAT E OE E X C E P T I O N 4 17

Sovereignty and Schmitt's Challenge

Th e concept of sovereignty developed along a winding route throu gh the tho ug ht ofthe m edieval scholastics, bu t, building on Machiavelli's innovations, Jean Bodin beganto give the concept its peculiarly modern meaning. Schmitt picks up the story at thispoint.^ In th e hand s of Bodin and later H ob be s, in contrast to earlier versions in whichsomething like sovereignty was always subject to natural law and obedience to god,the sovereign comes to be seen as above the law. A logical argument might be madealong these lines. After all, how can the sovereign give and enforce the law to everyoneelse if he is himself a mere equal to his subjects? If he were, then any of his subjectswould be thought equally competent and entitled to give and enforce the law.

Only because the sovereign is above the law can he be sovereign. After all, if the

law has to be changed, it cannot be changed from within because doing so would bebreaking the law. Only someone above the law can change it. This principle of thesovereign's standin g above th e law was im port ant for Schm itt and his eventual articula-tion of the state of exception because in his view the sovereign not only had to decidehow to respond to a state of emergency but also had to determine when such a stateexists or m ust b e invoked. Again, authority superior t o the norm al law is required.

This superior power of the sovereign arrived thro ug h a transition of the Christianconcep t of the two bodies of Christ into the secular realm, so that o ne starts to speak of

the two bodies of the king: the one that can die as an individual man and the one thatlives on eternally, embodied in his heirs and rightftil successors to the throne. Alongwith this notio n of the two bodies, the idea of the mystical bo dy was smug gled in tothe language of sovereignty (Kantorowicz 1981)the notion that the subjects aresom ehow organically joined in to the king 's endurin g body. (H e, of course, is the bod y'shead.) This conceptual leap would become important a litde later in the moderndevelopment of sovereignty theory. It is prominent in Schmitt's olk valorization in his co ncept of the political (Schmitt 1996).

Arguably in Bodin, but certainly in Hobbes, an important theme of the legitimi-zation of the sovereign is its role as an umbrella for liberty. Precisely because suchsovereign authority creates the conditions for everyone else to live in libertydecisivelyfor Hobbes, because this authority provides securityit has legitimacy as a properconsequence of the social contract.^ The other important development for this history

2 . Som e mig ht argue that choo sing this begin ning gives Sch mitt's political theo logy a particular charac-ter that does not necessarily do justice to the larger picture of his analysis. Indeed, a more historicallyattentive approach might have provided greater benefit for his theoretical project. Exploring this dimensionof the question exceeds the bounds of the current article, though it may well prove to be a valuable part ofthe larger intellectual enterprise of which this article is a preliminary effort. For a taste of what kind ofconsiderations would inform this more historically attentive approach, see Jouvenel 1949 and Gray 2007.


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4 1 8 MIC H A EL MC C O N K EY

of sovereignty theory, combining the social contract for the common good and thglossed-over bu t always imma nent mystical body, was Rou sseau s co ntri bu do nin which sovereignty comes to be embodied in all and only in all in the form of th

General Will. In the guise of transferring sovereignty from the dictatorship ofthe kinto th e peo ple, what really evolves is the dic tatorship of th e collective over the individuaan observation developed by both Jouvenel (1949) and Maritain (1951). Absoludsm inot overcome, but transposed, so it makes perfect sense to shift discussion from thdivine right of kings to the divine right of majorities. Both Bodin and Hobbesalthough preferring kings, acknowledged that sovereignty could still be exercised iaristocracies or democracies. Rousseau merely took the m at their wo rd.

Ro ussea u s twist on sovereign t) had its decisive historical m om en t in the F rencRevolution. A lthoug h Schm itt perhaps failed to analyze R ousseau s con tributioadequately, he certainly paid close attention to the French Revolution. Alas, from thanarch ist s perspective, he learned the w ron g lesson. It is tru e, of course, as Sch miobserved, that the French Revolution became the cauldron and template for liberalism s state of exception and t au gh t a vivid lesson in liberal demo cracy s dilem ma . Hcriticized liberalism and liberal democracy for their predisposition to talk rather thato decide. W hen the rubb er hit the road, th ou gh , and everything was on the line, onla decision w ould do : sovereignty was essential and inescapable. In S chm itt s estimation, the liberals and democrats should have learned this lesson from the Frenc

Re volutio n. This landm ark cataclysm served to validate Schm itt s d ecisionism.In anarchist theorists estimation, of course, a very different lesson rom the

French R evolution an d/ or Schmitt was manifest.^ Before 17 89 , the liberty mov em enhad a strong elemen t that s oug ht t o use state sovereignty to achieve liberty. Th rou gthe seventeenth century and most of the eighteenth century, of course, somefoexample, the Levellers, John Locke, the spontaneous order strain of the ScottisEnlightenment, and many involved in the independence movement of the thirteecoloniestook a much more cautious view of such a strategy. Yet a distinct branch o

the cause hoped precisely to harness sovereignty to the liberty revolution. Especiallin France in the decades leading up to th e Revo lution, the Physiocrats were noto rioufor this strateg) ; T ur go t s reform platform as minister of finance un der Louis XVI wathe best prospect for realizing this hope, though it finally came to naught. The liberaBurgundy Circle had earlier aspired to educate the duke of Burgundyeventually tbe next in line to th e th ron e o f Louis XIV in laissez-faire p rinciples, only to have himdie of measles (Rothbard 2006). Indeed, the internal story ofthe French Revolutionrarely told in high school te xtbo oks , tells how tlie project of harnessing sovereignt) t

conclusions about th e civilizing role of trade without PufendorPs aid but bysimply applying praxeological


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A N A R C H Y, S O V E R E I G N T Y, A N D T H E S TAT E O F E X C E P T I O N 419

the liberty revolution morphed into the widespread delusion that capturing sover-eignty' itself co nstitu ted fulfillment of th at revolution.^

The horrors into which the French Revolution descended put this sovereignty-

mastering delusion in an entirely new light. It is no coincidence that in multiple placesin the decades that followed the revolution and Napoleon's defeat the first unambig-uously anarchist thinkers began to advance new conceptual models that no longerrepresented the ancien rgime as the primary object of struggle, but rather thesovereign state itselfthe effective tool of the parasite class, old and new. WilliamGodwin 's Enquiry Conce rning Political Justice and Its Influence on Mo dern Moralsand Manners (1793) is widely considered the first work of explicit anarchist theory.Under the French Restoration, Charles Dunoyer and Charles Comte first articulatedanarchist class theory. So on afterward Belgian m igr to P aris Gustav de M olinari wasthe first to argue explicitly that every fiinction of the stateeven that perenniallast holdout, defense and law enforcementshould be privately performed in thevoluntary m arket. Similar developme nts were evident in Germany in Julius F auche r'scircle, in England in the work of Herbert Spencer and eventually Auberon Herbert,and then in the United States in the Boston circle around Benjamin Tucker andLysander Spooner.

Schmitt was not oblivious to the possibility of anarchy. On the contrary, towardthe end of Political heology are several pages that pertain to what he calls atheistic

anarchy (2005, 55-57, 66). His object of n lysis there, however, is the com mu nalist(what I wo uld no t conside r it unfair to call cry ptos tatist ) ana rchy of BabeufProudhon, Bakunin, and Kropotkin.*^ Because these v^iriters are cryptostatists,though, Schmitt's dismissal of their antistate posturing (wanting the political recti-tude of state power without being willing to accept its decisionist implications) is notentirely unfair. However, he does not consider the libertarian or free-market anar-chism of MoUnari, Spencer, or Spooner. The decisionist critique cannot stick to theirviews as it can to communalist anarchy. This historical lacuna in Schmitt's analysis

suggests the theoretical cul-de-sac that his approach evokes when confronted with thefree-market alternative to sovereignty.

Challenging Anarchy's State of Exception

Without recognizing this dimension of the story, Schmitt's evaluation of the FrenchRevolution's legacy and its implications for sovereignty theory are fatally fiawed in

5. Gary Kates's article Fro m Liberalism to Radicalism: Tom Paine's Rights of iSlan (1989), a fascinatingcase study of these matters , nicely illustrates the conceptual trajectory from libert>'-through -sovereigntyto sovereignty as liberty in Thomas Paine's thought between the writing of the two parts ofThe Rights


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no t only jusdfied, b ut necessary. Only a pow er above the rou dn e law can act rapidly,decisively, thoroughly, and disinterestedly enough to avert such an exdncdon event.Even those fully cogniza nt of Julian Simon s (199 6) pioneering post-Maithusian

insights into the market as the guarantor against nonrenewable resource exhausdonunder normal condidons might harbor serious reservadons about the validity ofidendfying markets as the opdmum instrument of crisis resoludon in the state ofexcepdon. If any situadon requires effacement of self-interest and demands universalself-sacrifice in the interest of the common good, the state of excepdon posed by theexistendal threat of an approaching exdncdon event would seem to be that situadon.

Ind ee d, in many peo ple s m inds this situad on may weU be the lim idn g case fordeontological anarchism: the one in which anarchism definidvely fails the litmus test.If the choice truly is one between sacrificing liberty and exdncdon, how can insisdngon liberty be the morally superior choice? Surely some liberty has to be sacrificed sothat not all liberty is lost. One hears this argument often enough, admittedly moreamong minarchists (not to mendon disingenuous enemies of liberty), but pointedlydirected at anarchists. If this case is not the defitiing one for the argument in favorof Schmitdan sovereignty, what case possibly can be If nothing else, this situadonwell represen ts Sch m itt s state of excepd on for anarchy. Ho we ver, th e sovereignexcepdonalists must counter two major anarchist counterpunches before the anar-chists can be expected to grant any berth on this claim.

Sovereignty s N irvan a Fallacy

The two counterpunches are the cddques of the statethe modern embodiment ofsovereigntyas both too incompetent and too corrupt to rise to the challenge. If theoffering of sovereignty as the soludon to the excepdon rests only on the Nirvanafallacythe condemnadon of anything that falls short of fantasdcally perfected con-didon unencumbered by realityit hardly consdtutes the soludon it purports to be.

Even among the general public with no educadon in anarchist theory, stories of statebureaucracy s inerda and sm othe ring red tape are legendary; one can hardly pick up anynewspaper (assuming a remo tely fi-ee press) in the w orld on any given day w itho utfinding at least a couple o f rdeles do cu m en dn g such self-inflicted incom peten ce.

However, the ftaming of btireaucradc inefficiency often takes for granted bothcapacity and intendons that are unwarranted assumpdons. Ludwig von Mises (1935)and Frieddch Hayek (1945) described in seminal works the calculadon and knowledge

7. Although in this article I am using the longer and more conventional tradition of reading Schmitt s viewof sovereignty as a justification for a stron g central state, some S chmittians (ne o-Schm ittians?) have


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problem s tha t make even the best-intend ed central-state planning impossible as rationaundertakings. This situation is gloriously evident in the domain of state central plan-ning th at is supposed to be the m ost rational and scientific: regulation (W inston 2 00 6)

Some iconic examples of regulatory failure, stretching over decades, that illustrate thcalamity of such central planning include Hurricane Katrina, both preparation andresponse (Anderson 20 05 ); the incre se in coal-generated air pollution as a direct resultof scrubber technology mandates (Ackerman and Hassler 1981); increased electrocutionrates as a result of streng then ed electrician licensing standards (Carroll and G aston 19 81)and the unnecessary deaths of tens of millions of people, mosdy in Afiica, from thedecades-old DDT ban (Seavey 2002).

As these examples illustrate, regulatory failure is not merely a lack of success inachieving the central planners' stated aims; it also comprises perverse outcomes indiametrical opposition to stated aims: a phenomenon so common that it has talcenon the nam e of the economist who theorized the effect, the Peltzm an Effect(Peltzman 1975). This outcome is hardly surprising when one considers the widespread prevalence of the Baptist-and-boodegger effect, in which the benefiting speciainterests in any regulatory initiative are already embedded in the process, howeveinvisible they may be to general public scrutiny owing to the distractions provided bythe virtuou s B aptis ts (Yandle 198 3). N o discussion of the stand ard calamity ofregulatory failure wou ld be com plete with out acknowledging the degree to which

sovereign regulation by the state does not and never was intended to serve theostensible public good but ratlier has been part of the collaborative pilfering bythe rulers' capitalist cronies (Kolko 1963). Indeed, in a real sense, what is calledregulation is in fact antiregulation because it interferes with the actual processes oregulation built into the market (McConkey 2011).

Thus, even to assume state actors' good intentions one has to willfully ignore along history of rent seeking, regulatory capture, discretionary bailouts , and generacronyism that is endemic to any rent-generating opportunity and that was wel

displayed in the creation of and response to the 2008 housing-finance crisis; thepharmaceutical industry's support for the U.S. health-care reforms under both Bushand Obama; and the ongoing travesty of the military-industrial complex that distortthe domestic economy and foreign relations in scores of countries, obviously including the U nited States of Am erica.

Perhaps a benevolent, efficient, incorruptible, and omniscient dictatorshipwould coerce everyone into contributing to an extinction-avoidance program. However, history and logic undermine confidence that any real-life dictatorship actuallypossesses any one of these qualities, much less all four Moreover, another level of riskalso besets the unleashing of the sovereign to ward off impending extinction: becauseas Schmitt makes clear the sovereign decides not only the solution strategy but also


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dictatorial powers to a constitutionally elected party. The past few generations ofAmericans have becom e accustomed to this tendency in the president s creepingexercise of executive privilege on matters such as congressionally unapproved war;

and Canadians had a taste of Schm itt s solution to th e exception in 197 0 withTru dea u s precipitate overreaction to a pair of kidnappings by imposition of the WarMeasures Act and its attendant suspension of civil and natural rights. When those whotake supreme power in the state of exception also determine whether such an excep-tion exists, the lures of corruption are simply too tempting to resist.^

Hence, lapsing into the Nirvana fallacy in regard to the state s utility and moral-ity at the last minute before human extinction would hardly seem to be a rational orefficacious strategy. Desperate times may call for desperate measures, but surely theydo not call for absurd disregard of reality and experience. The anarchists rejection ofSch m itt s solutio n is hardly surprising, yet such principled co nsistency doe s no t actu-ally answer his challenge. If reliance on Schmittian sovereignty is not the properresponse to such a critical exception, can we really expect that the anarchistsendearing faith in the market will provide a solution.

Anarchy s SolutionThe travails of market failure, the tragedy ofthe commons, and the scrounge of freeriders are rehearsed often enough that, given the extinction crisis event hypothesizedhere, we should expect market responses powered by narrow, short-term self-interestsimply to pile one negative externality atop an oth er as we fade into extin ction. N o oneis either charged or uniquely empowered to take the problem in hand and focus onfinding a solution. Is this oft-repeated truism a realistic or probable outcome in themarket. Let us assume a minority in th e know. We may even assume it is a smallminorit) . But , whatever its size, we are no w discussing th ose w ho firmly believe t hatthe existing conditions are carrying us toward an extinction event. Recall, too, that,

we have agreed for the sake of argument that these people are objectively correct intheir assessment. Consider the options available to this dispersed group, who areconvinced that certain common human practices are carrying us toward extinction.Three obvious approaches present themselves for this minority: coercion, education,and solution.

Coe rcion w ould be the approa ch of sovereignty, which we have already ruled ou ton grounds of disutility arising from corruption via rent seeking. On a smaller scale,no doubt, some people may resort to various actions, from civil disobedience tosabotage and even terrorism. However, the minority that carries out such actions willbe resisted and suppressed by the majority, which is both understandable and inseveral instances the correct stance on the part of the majority insofar as the free use


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of its Uberty and property is denied by the c oncerned mino rity s actions. H en ce, thisapproach is both impractical and ethically suspect from the start.

Education avoids such ethical quandaries but is not necessarily any more practi-

cal. We have already posited th e approa ching extinction event as sufficiently im m ine ntto warrant dramatic action by the m inority in the know. H owev er, the mino rity seducation of majority is a long, slow process, unlikely to bring results soon enoughto avert the imminent extinction. Moreover, there is no guarantee and only a modestexpectation of ever mak ing any progress in chang ing th e majority s consciousn ess. Soalthough education may be superior to coercion, it too is not a promising approachin our posited scenario.

The third approach is to find a solution, a practical alternative to the specifichuman actions that are creating the encroaching event. If the majority cannot beeffectively forced or persuaded to change their practices, they can be induced to doso by the creation of alternative practices that serve their self-interest. One thinks ohow the hunting of whales to extinction and the relentless deforestation of much ofthe world were dramatically slowed and, in the short term, even arrested, not bysanctimonious appeals to cut back on energy consumption, but by the innovation ofa different fiael source. The discovery that oil, formerly a nuisance that damaged thequality and value of farmland, could be ma de into kerosene and prov ide a fiael sourcethat was less expensive, ended excessive whaling and deforestation not through force

or persuasion, but by serving the self-interest of those whose preferences were drivingthe activity and its ecological impacts.

With this example as a guide, it is evident that anyone who believes in theimm inence of the ex tinction event wo uld be fially mo tivated to invest entirely in th esearch for a solu tion. After all, the situation is no t one in which ina deq uate inves tme nin seeking a solution leads simply and solely to distressing financial outcomes; ratherit leads to extinction. Moreover, successfial solution seeking leads to widespreadadoption of the solution in the free market. For the minority in the know, the option

is either not to find the solution and go extinct or to find it and get rich. As AdamSmith noted in a famous passage about the virtues of the Invisible Hand, altruism isno t supe rior t o self-interest as a motive for t he pu rsuit o f such a solution. It is entirelyirrelevant whether one is motivated to invest in such a solution for humanitarianpurposes or in selfish hopes of the payoff that will come if humanity survives as aresult: if the solution is found, everyone wins, and every investment increases theresources with which to find the solution.

Free riding among the minority in the know would be masochistic and have to beexplained by self-destructive psychological impulseswhich would be equally sabotaging and counterproductive under Schmittian sovereignty. Aside ftom self-destructive


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masochism, fi-ee riding provides no advantage. Aspiring free riders am ong the mino rityin the kno w wou ld n ot benefit from no t investing in the search for a solution, regardlessof the outcome. If solution were found and the world survived, they would not cash

in on that solution (other than by continuing to live), and if it were not found, thespecies would go extinct, and they would not enjoy fiee-rider benefits from others'investment because they would be dead. So, however small the number of truebelievers, they would be maximally motivated. Moreover, the direr the event threat,the more highly motivated the believers would be to go all-out to find the solution.After all, they can't take it with them.

Juxtaposed to this market-based solution, the sovereignty option is revealed asadditionally counterproductive. As long as some of the minority in the know believethey have practical resort to coercion, they will be tempted to forgo investment insolution seeking. Only the anarchist option of forbidding all exercise of state sover-eignty closes off the coercive option and directs all the efforts and resources of all truebelievers into the creative and productive option of investing in the search for solutions.

There might be merit here in anticipating a couple of potential objections fromthe reader, which in fact one of the reviewers for this article did raise. The reviewerpu t the objection this way: T he au tho r [wa nts] to deal with the m ost difficult case?If the world were held hostage by a mad bomber or under control of the governmentof the Un ited States, it seems the a uth or w ould simply say, 'We just need a solutio n to

create benefits for those at risk.' . . . But is it that easy? If it were, why haven't thesolutions already emerged? The author gives no in-depth argument about why some-one would be able to quickly find a solution to [the] most difficult problems.

First, contrary to the extreme claims of some global-warming alarmists, it is notclear that we do face or have faced such an extinction threat, so the case has hardlybeen te sted, b ut even if we were facing it (to the de gree th at global warm ing m ight beperceived as being such a threat), the who le poin t of the arg um ent here is that as longas the state provides the attractive (if inhere ntiy ineffectual) coercion op tio n, solutio n

finding is all too likely to be distorted by the temptation of a Schmittian state ofexception as the more direct path to a resolution. So, for example, if all the resourcesand creativity put into lobb ying, protesting, ren t seeking, and dinner-table argum entson behalf of the solar-power energy industry had in fact been put into actual solar-power research and innovation, who knows how much closer that option would betoday to providing a market-viable alternative to fossil fiaels?

As for the mad bomber scenario: it is not a harder case, but rather an easier onebecause, by definition, holding the world hostage entails the world's already knowingabout the threat. Therefore, neither a knowledge problem nor a collective-actionproblem exists. My scenario here has been the much more challenging one in whichonly a small minority knows and understands the actual situation of an existential


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426 MICHAEL MCCONKEY

It merely claims that in light of the alternadvesthe self-defeadng coercion of sover-eignty and the overly dm e-constrained educado nal opd on marsh aling the resotirces ofthe convinced minority in the know through market-coordinated seeking of soludon

offers the best prospect of success were we to face an imminent existendal threat.

Conclusion

A consistent free-market anarchisdc posidon, far from falling prey to the Schmittiancridque of liberalism under the state of excepdon, proves to be not merely the besthope, but actually the only hope for finding a soludon to an existendal threat such asan exdncdon event. Decisions may be necessary, but the probability of self-serving

capture hardly recommends a single, centralized decision over many decentralizedones. The direr the circumstances in terms of imminence of the threat and the lack ofpopular awareness and commitment, the more efficacious is the market in providingthe mechanism for the true believers in the know to go all-in to find a soludon.No one has any structural reason ro interfere with their investment choices, and theyhave every reason to spare no effort or expense because they face an all-or-nothingprospect: either they succeed and prosper or they fail and die.

In stark contra st, in the same dire scenario, with only a small min ority be ing truebelievers, not only would the best-intended sovereign state be less effecdve than thema rket, b ut the likelihood of die state s failure w ould rise with t he direness of th escenario. The logic of Schmitdan sovereignty is that the direr the threat, the greaterthe excepdo n t o rou dn e law that is jusdfied. H owe ver, the mo re extralegal powers thestate wields, the greater the opportunides for rent seeking because rent seeking isprecisely the taking advantage of ftee-market constraining opportunides. Yet becausein this scenario the vast majority of the poptiladon is either not cognizant or notconvinced of the threat, they have no incendves to refrain from exploitadon of theincreased rent-seeking opportunides created by the state of excepdon. Here, then, is

a paradox in sovereignt) s state of excepdon (McConkey 2012a).Th e m ore existendal the t hre at, the less efficacious is Sch mitd an sovereignty as a

so lud on because the state s fatal fiaw grows with th e expansion of re nt-seekin gopportunides: the very qualides that recommend against the sovereign state as anexcepdon-resolving strategy are accentuated by that exact use. Th e m ore the state focus and disinterestedness are need ed, th e m ore likely it will be derailed in bot h thesregards by self-serving rent seekers. Liberty, expressed through the experimentaltrial-and-error, profit-and-loss mechanisms of the free market, actually strengthensthe coUaboradve investment power that alone can focus effort and resources in theface of the d irest existendal th reat.

S i f i h f h di ki d f i d l h h f


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imminent crisis, such as the global-warming lobbyists, not only reveals their inade-

quate familiarity with state critiques from anarchist and public-choice theory but

perhaps even more disturbingly illustrates how impoverished is their understanding

of the intellectual roots of their own statist default assumptions. Unbeknownst tothem, Schmitt haunts the antimodernist, anticapitalist agendas and rhetoric of the

mainstream oppositional movements.

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Acknow ledgm ents: I thank Robert Higgs and the two anonymous reviewers for their encouragement an

critical contributions to the improvement of this article.


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