State of emergency and sovereignty
Note kindly translated by Anne-Marie de Gazia.
The French version is available at: http://russeurope.hypotheses.org/4469
Attacks that plunged Paris into mourning on Friday November 13 stir in us both horror and revolt. No, it is not the first time that blood is being spilled in Paris. Memories of the tragedy which unfolded at the editorial board of Charlie-Hebdo and at the Hyper-Casher store last January are still fresh in our minds. We still are mourning victims. But the multiple carnage of this November 13 has brought a qualitative leap in horror and abjection. The time of mourning and reverence due to the victims and to their loved ones is in order. The time of action will come later. But it is important that it be enlightened by a time of reflection. And, as part of this reflection, there arise the problems represented by the proclamation, by François Hollande, of the state of emergency.
This proclamation has consequences going way beyond its practical implications. In deciding to call a state of emergency, such as it is defined by law since 1955, François Hollande is making a move of which he probably hasn’t measured the whole dimension and the whole reach. For he has just now ruled in favor of all those who are defending the principle of sovereignty.
A sovereignty return
We must therefore point out the fact that in deciding to decree the state of emergency, the President of the Republic has made a sovereign act. He has done so in the name of all of us, in the name of the French people. But, in so doing, in deciding both the state of exception and what must be done WITHIN the state of exception, he has brought back to the forefront of the political stage the question of sovereignty, in contradiction with the very discourse being held by the leaders of the European Union  and by their theoreticians. He has, moreover, implemented this re-staging at a time when the European Union finds itself in a critical state. The Schengen accords are, for all purposes, dead, and we can see a convergence of crises, be it in Greece, in Portugal, and also in Great Britain (with the referendum on a possible exit from the EU) as well as in Spain, where the problem of Catalonia is on all minds. Such is the very particular context of his decision.
It is not certain that he was conscious of the deep meaning of his action and it is probable that he believes that he is still only responding to a mere emergency. But his decision has implications going way beyond it. It marks the forceful return of the notion of sovereignty.
We know, indeed, that for Carl Schmitt « the sovereign is he who decides of a situation of exception ». This definition is important. Yet, it is important to examine these words closely. Emmanuel Tuchscherer justly remarks that they « designate indeed the link between the monopoly of decision, becoming the essential mark of political sovereignty, and a bunching of situations being summarized by the term Ausnahmezustand, which, beyond the genericity of the « situation of exception, » qualifies those borderline cases which C. Schmitt enumerates in the same section without really distinguishing between them: « case of necessity » (Notfall), « state of emergency » (Notstand), « exceptional circumstances » (Ausnahmefall), in short, the typical situation of the extremus necessitatis casus which classically commands the temporary suspension of the ordinary legal order ». It is important to understand that this suspension of the «ordinary legal order » does not imply the suspension of all legal order. Quite in the contrary. The Law does not stop with the situation of exception, but it transforms itself. The act of the legitimate authority becomes, within the facts of a situation of exception, a legal act. And one then understands the importance of a clear definition of sovereignty.
Schmitt explains the matter in a succession of ways, returning time and again to his initial formula : is therefore sovereign « he who decides in the case of a conflict what is the public interest and what is the interest of the State, security and public order, and public safety ». In reality, this is more than a clarification. We notice that this new definition carries in fact the imprint of sovereignty from being an organic criterium (the question then being « who decides? » or, in the legal vocabulary, quis judicabit?) to a much more concrete one, specifying the circumstances in which (in a conflict situation) and the objects for which (the public interest and the interest of the state) it becomes necessary to rule by decree. We’ll notice, too, that the interest of the state is made distinct from the public interest. But, if the interest of the state is being defined (security and public safety, public order), the public interest remains undefined. We must try to grasp the reason for this.
How is public interest defined?
Public interest cannot be defined upfront, for such an approach would, in fact, imply limiting the power of the political community. However, this is precisely the point where Schmitt asserts the primacy of sovereignty. The political community alone, which we call the people, is in a position to define the common interest and nobody can pretend to orient or to limit its capacity to do so. From this point of view, Schmitt rules in favor of popular sovereignty. But the people does this at a given moment, and it is important here to understand the meaning of these terms.
The definition of the common interest can only, indeed, be made within a context, unless we pretend that the people, or its representatives, would be endowed with omniscience and would be able to define in advance the totality of the scenarios which this common interest could take on. Yet it is indeed the brutal emergence of a new and threatening context which induces the « situation of exception. » This is absolutely essential. The existence of a situation of exception, of what jurists call the case of « extremus necessitates, » is by the way cited by Bodin as relieving the sovereign from the regular observance of the law . Bodin makes of this the emblematic case of the legal exception , with an interruption of the normal law, without the principle of the Law itself being interrupted. The nature of sovereignty itself is profoundly linked with the state of exception through which it is revealing itself. 
For Schmitt, it is the context of the conflict, or of the situation of emergency if one is to extend one’s reasoning, which serves to define this common interest. Schmitt then designates the limits inherent to the legal discourse and more precisely, the limits of a discourse which would be essentially founded upon the notion of legality.
This discourse, against which he is rising, can be considered as an example of legal positivism. This is because it is pretending to rule by law, in other words, legally, that which can only be ruled by relevance, which is to say by legitimacy, that the narrowly legal discourse reveals itself incapable to apprehend the deep meaning of the state of exception and, today, of the state of emergency. This legal discourse cannot logically qualify such a purely factual situation which by definition busts the banks of usual legal categories.
But it is just as evident that this common interest, which serves as a basis and justification for the state of exception and for the state of emergency, can be over-run, and even perverted by the actions of the government. And this brings up the question of the respect of the Law, when the law itself may be temporarily suspended.
The notion of the « legal » in the context of the state of emergency
The need then arises to find out by what means the constitutional State can bridle public authorities in critical situations where these tend precisely to cut themselves loose from habitual limitations, while responding to the specific constraints of a situation of exception . If the decision to have recourse to some form of state of exception, such as the state of emergency, is deploying itself on the margins of the legal order normally prevailing, it does not completely escape the law, as there is no situation of exception unless it is expressly qualified as such. The situation of exception suspends in whole or in part the ordinary legal order, such as it functions in normal circumstances. But the situation of exception does not exonerate itself of all legal order. By no means does it indicate a void, or pure anomie. The situation of exception displays in the contrary the vitality of another variant of said order. One can consider it to be the political or sovereign order habitually hidden behind the purely formal and procedural framework of the normative order of common law: « In this situation, one thing is clear: the State endures, whereas the law recedes. The situation of exception still always remains something else than anarchy and chaos, and this is why, in the legal sense, an order is still subsisting, albeit an order which is not the one of the law. The existence of the State retains here an indisputable superiority over the validity of the legal norm. ».
Schmitt revisited the notion of sovereignty in a latter work on The Concept of the Political . He brings to the fore the central opposition “friend-enemy,” as justly noted by Tuchscherer. But he also places at the center of the game: « social unity […] to which belongs the decision in the case of a conflict and which determines the decisive regrouping between friends and enemies ». One possible interpretation is that this « social unity » is nothing else, or should be nothing else, than the people in action, the « people itself. » In fact, it is the opposition “friend-enemy” which defines the political, but this opposition can only be mobilized by « social unity. » And to the latter pertains the burden to define what are called concrete antagonisms, concrete conflicts, and finally, crisis situations. We understand much better today the meaning of these concepts. And it is to this extend that François Hollande has just ruled in favor of sovereignists, by taking duly cognizance of the meaning of sovereignty.
It is probably ironic that it should be such an indecisive President, subjected to the various European diktats, who is taking upon himself the decision to impose a state of emergency, thus having recourse to the very mechanisms he professes to detest. He had to do it, because events imposed it upon him. The common interest raises its head in a crisis, in a particular context. But his decision is adding a stone, and it is no small one, to the reconstruction of national sovereignty at a moment when the EU is collapsing. It is probable that, following his habit of wanting to conciliate the extremes, our President, seized with astonishment at his own audacity, will make an attempt to call on Europe. Never mind the words he might then use. What is done is done and cannot easily be undone. François Hollande, against himself, has just given new life and its rightful place to sovereignty and sovereignism.
 The state of emergency is a regime of exception organized by the law no 55-385, of 3 April 1995. Source : http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000695350&dateTexte=vig
 Barroso J-M., Speech by President Barroso: “Global Europe, from the Atlantic to the Pacific”, Speech 14/352, delivered at Stanford University, 1 May, 2014.
 Jakab A., « La neutralisation de la question de la souveraineté. Stratégies de compromis dans l’argumentation constitutionnelle sur le concept de souveraineté pour l’intégration européenne », in Jus Politicum, n°1, p.4, URL : http://www.juspoliticum.com/La-neutralisation-de-la-question/28.html
 Schmitt C., Théologie Politique, traduction française de J.-L. Schlegel, Paris, Gallimard, 1988; édition originelle en allemand 1922, p.16.
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 Schmitt C., Théologie politique I, op.cit. p.23.
 Bodin J., Les Six Livres de la République, (1575), Librairie générale française, Paris, Le livre de poche, LP17, n° 4619. Classiques de la philosophie, 1993.
 Schmitt C., Political Theology, Théologie politique, op.cit., pp. 8-10.
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 Schmitt C., La notion de politique, (The Concept of the Political) trad. M.-L. Steinhauser, Paris, Champs Flammarion, 1994, (1937).
 Tuchscherer E., « Le décisionnisme de Carl Schmitt : théorie et rhétorique de la guerre » op.cit..
 Schmitt C., La notion de politique, (The Concept of the Political) op.cit., p. 81.