The sovereign, the time and the law: a reading of Carl Schmitt – thinking about constitution-making post bellum in Iraq 2003

Abstract

This abstract is an outline for a talk on the Sovereign in times of war, occupation and post war legal (re)construction. The example to be investigated is the U.S.-led invasion and subsequent occupation of Iraq in 2003 and the following years, and the process of creating a constitution for Iraq during this time period.

The issue of sovereignty in the process of constitution making during war and occupation becomes interesting as the creation of a constitution is often thought of as a process founded on a previous constitution, and/or as the product of the national legislative branch of government. In cases where the sovereign changes or is replaced, for example after civil war or revolutions, regime change I connection to the fall of ideologies (ex. apartheid, communism), etc, it is not uncommon that the new sovereign creates a new constitution which expresses a new ideology.

International laws governing war and occupation state that the domestic laws of occupied lands shall be respected (and thus not subject to change), and it is only unless the occupant is absolutely prevented to do so, that the laws might be subject to any form of change. The occupant is thus the governor appointed and restricted by international law, where as the Sovereign is restricted by nothing but his own rule. In the case of Iraq, it is obvious that one of the reasons of intervention and subsequent occupation was regime change, and the work of (re)constructing the Iraqi legal order, and most importantly the work of constructing a constitution, started almost immediately after the U.S.-led Coalition Power Authority was established.

This far about war and occupation – but how does this relate to the Sovereign and the State of Exception? War can in much be said to be the ultimate battle over sovereignty. Occupation – a state that is supposed to be a temporary stage – is in many ways comparable to the state of exception: It is a time between times. It is not war, and yet it is not regular governance.

Agamben has defined the state of exception as the “suspension of legal order by legal order”. This is as close as we get to legal suicide, the death of law by law, and the pure rule of power on bare human life itself. In war and during occupation the legal order is suspended by legal order. It is indeed the ultimate exceptional state of orders. Sovereignty is reduced to the force of arms upon human life, and during times of war and occupation Sovereignty is by necessity diffused by the military command and delegation of power. Thus, we come close to something that is very much like the State of Exception, though it may be difficult to single out one specific Sovereign. Not one figure stands out as the one who decides on the exception. It could, of course, be tempting to say that the US President is the ultimate Sovereign in the case of the US led invasion and subsequent occupation of Iraq. Such an analysis would however not be correct. In factual reality, i.e. within the territories of war occupation, the Sovereign can most easily be recognized in Petty Sovereigns. An illustrative example, with which we are all familiar, is the Petty Sovereign use of power on human life in the Abu Ghraib prison, as was reviled in 2004. This is of course a depressing example of Petty Sovereigns, but it serves as an example to show how the power to decide the rule, and the exception of the rule – and its exercise on human life – is in the hands of he who has the ability to take and control power.

In this state of exceptions, when the rule is not by law, but by sheer power on human life, what is ultimately left as the order of things is Time. Every state of exception is governed by time. It has a beginning and an end. This might not sound as a statement of any interest, but as one looks closer at the conditions of the Sovereign, and the State of Exception, Time becomes a central theme. Carl Schmitt formulates the state of exception as the halting of time, as if normal time was interrupted by another time, a temporary time, a time of a different quality. If we look at international law, we see that it is divided in different sets of laws (jus ad bellum, jus in bello and jus post bellum) according to periods of Time. In this latter example the laws governing the different time periods are distinctly separated from each other according to time. Time becomes the only law which (at least in some respect) the Sovereign has to obey. With time comes inevitably and ultimately the death (physical or ideological) of every sovereign.

Let us return to the point of departure for this paper: the creation of Law in Time and by the Sovereign. Several questions remain unanswered as to the process of creating a constitution for Iraq during the occupation. Who is the sovereign who decide on the creation of the constitution? Is the constitution a law created under diffuse sovereignty, in a time of exception, for a time that had not yet come? Did the constitution or the very creation of it in any respect create or facilitate that other time to happen?

These are all questions which will be further elaborated on during the talk under the theme of creation of Law during exceptional Times and ambiguous Sovereignty; the Sovereign, the Time, and the Law.

• author: Arvidsson, Matilda
• organization: Department of Law
• publishing date: 2007
• type: Contribution to conference
• publication status: unpublished
• subject: Law
• keywords: Carl Schmitt, state of exception, eschatology, sovereignty, law, Giorgio Agamben, rättsvetenskap
• conference name: Den internationella konferensen "Establishing Law, Power and Order"
• conference location: Copenhagen, Denmark
• conference dates: 2007-03-09 - 2007-03-11
• language: English
• LU publication?: yes
• id: fd49ee0e-2255-4c58-9234-5cd924252306 (old id 931070)
• date added to LUP: 2016-04-04 13:25:06
• date last changed: 2018-11-21 21:13:50