On Political Theology – Paul Kahn

We do not ordinarily associate political theology or Carl Schmitt with freedom. Indeed, we are more likely to think that liberal political theory focuses on freedom, while political theology focuses on the authority of sectarian beliefs.

Neither of these alternatives, however, makes much contact with the distinct American political experience that includes both law and sacrifice–a civil religion that connects law to popular sovereignty, Constitution to Revolution.

While our law models the free act on consent—as in the social contract—our civil religion models the free act on sacrifice. The narrative of sacrifice begins with the Revolution, continues through the Civil War, and includes most recently the attack of 9/11. Lincoln gives voice to this narrative at Gettysburg when he speaks of a nation “dedicated to a proposition.”

The proposition is law, but the measure of dedication is sacrifice. This same imaginative structure of sacrifice and law grounds the exceptional character of the recent American response to terror. Political identity is imagined as a matter of life and death, even as law promises individual well-being. Political theology is, accordingly, a critique of liberal political theory because that theory tends to reduce politics to law; it has no way to understand the violent, sacrificial act.

Schmitt begins his Political Theology with the sovereign’s decision for the exception. In American political theology, this is the decision of the popular sovereign for Revolution. That sacrificial act marks the presence of the transcendent value of the nation as a historical project.

Schmitt expresses the meaning of this act through an analogy to the miracle. There is something miraculous about the possibility of revolution, but we should not be captured by this idea of exceptionality. The freedom that is at stake – freedom as an act in relation to, but not determined by, principle – also operates in legal judgment, discourse, and philosophy.

Exploring these as sites of decision, in my recent book Political Theology: Four New Chapters on the Concept of Sovereignty I attempt to redirect political theorizing toward our imaginative capacities for creation.1 The free act occupies a space between physical causes and rational deduction. This is the space of the imagination.

Freedom and Reason
For Kant, and most of those who followed him, moral reasons for action are those that apply equally to everyone. When we act morally, we do not favor ourselves, but take up an “objective” or “neutral” position, asking what any rational agent should do under the circumstances. A moral principle, accordingly, has the same compelling quality as a logical proposition. Both present themselves to us as necessarily true. Indeed, each carries the indicia of its truth in its formal structure. Thus, Kant’s famous categorical imperative: “ Act only according to that maxim whereby you can at the same time will that it should become a universal law.”

Kant stands here in a long philosophical tradition that thinks freedom is realized in the power of reason to compel assent – whether in thought or practice. This suggests the lingering presence of a theological ideal: we realize the truth of ourselves only when we transcend the finite character of the body. Ideas of the body as a “prison,” and of the senses as offering a merely “perspectival” view of the real, or of the material world as one of illusion are all quite familiar. They illustrate the way in which the idea of freedom brings with it a special kind of fear – the fear of an irresponsible use of that freedom. The response is to identify freedom with truth, and truth with reason. The cost of freedom, on this view, is literally the abandonment of the particularity of the individual.

God is the anchor of this entire idea, for he is perfectly free and perfectly ordered. There is a complete overlap of His will and His reason: “In the beginning was the word.” We are an “image of God” and must, therefore, strive for a similar overlap of reason and will. He wills the regularity of nature into existence; we must will the regularity of the moral order into existence. This theological background continues not just in moral theory, but also in contemporary political theory. When, for example, John Rawls argues that the basic order of a political community must be founded on an imagined contract formed behind a veil of ignorance, he is imagining the overlap of reason and will. Behind the veil, we can rely only on reason, which is the same for everyone.

However, it is strikingly odd to think that we are most free when we are convinced by reason alone. Missing is the experience of decision. The only moment of decision seems to be the turn to reason itself. That, however, looks more like an act of submission than of freedom, for there is only the singular truth of reason to which we must conform our will.

Acknowledging a moral principle, however, is hardly the same as accepting the premises of a deductive proof. Little follows from an argument deploying a moral principle, because it is not self-contained in the same way as a proof. A moral principle is one norm among many that I might maintain simultaneously, any two of which might resolve a situation differently. Just as there is disagreement among norms, there is disagreement on how they apply to any set of facts.

The steps of a moral argument are as contestable as the principles from which we begin. Even if we could agree on starting points and on application, there is still no reason to believe that we will reach agreement on what to do. That reason alone should be the source of action is not an essential truth of human nature. Instead, it is a proposition that we either do or do not find persuasive given everything else we believe about ourselves and our relationships to others under particular circumstances.

Proof and Persuasion
We may have no answer to a moral argument, but still we may be convinced that the right way to act lies in another direction. We may, for example, decide that, under the circumstances, the particularity of love is more important than the universality of a moral rule. We may even acknowledge that what we are doing is morally wrong, but still believe that it is what we should do.

Moral reasons are not the only reasons; particular relationships may be more important than universal norms. I may have no proof to offer, but proof is not the only sort of reason to which we respond. If to act for a reason is to be persuaded, we must keep in mind the whole range of arguments, examples, intuitions, beliefs and relationships that can be deployed in order to persuade someone. My reasons for acting refer to more than reason alone.

No principle will tell me whether I should act on care or justice when they point in different directions. That hardly means that I am the passive observer of the diverse causes of my own behavior. I must decide what to do. The possibility of decision in a causal world may be mysterious, but that does not mean that the experience of decision is mysterious. Just the opposite: we are entirely familiar with our own freedom and thus with the process of deciding.

When asked to explain a decision, I don’t respond that it is simply a mystery. I will speak of what I found persuasive and what I did not. Principles will be mixed with analogies; examples with proofs; personal relationships with universal norms. The more dense the reasons, the more I feel that a whole world is at stake in the decision. It always is, even if we are using short-hand expressions, heuristics, and rules of thumb.

I cannot explain myself without entering into a free space of discourse. Offering an explanation of a decision, I implicitly open myself up to a reconsideration of those reasons. I may be persuaded otherwise. I may worry that I have acted for the wrong reasons, but I answer that worry by examining my reasons: I either affirm them or I change my mind. In either case, I take responsibility for the reasons that persuade me.

I decide when I have been persuaded, and I am properly persuaded when I have considered arguments for and against a decision, and come to see the world a certain way. At that point, the way forward seems clear enough to me. I have constructed a web of meaning by seeing the world one way rather than another. Because the construction of this web is a matter of persuasion, people always exist in a state of pluralism. We simply don’t agree about what we should do or how we should live. We don’t see the world the same way.

Freedom first appears to us as a political idea because we discover it not in an inward turning from body to soul, but in the discursive engagement with others. It is something that we do with others, not something we find in ourselves. We ask a question or respond to another person’s proposition. We try to find out what it is that we should think about a problem by actually thinking it.

The Athenian agora was not coincidentally the original space of both democratic politics and philosophy – free action and free thought. They differ from each other not so much in the role of persuasion and critique, but in the circumstances of decision. A political decision, including a legal decision, may be required before the conversation is over. We must decide now, even under conditions of uncertainty. We call the vote; we poll the jury. Philosophy is without such external constraints. There is no vote to be called, only an openness to renew the debate.

Precisely because persuasion is not logic, it is difficult to persuade and to be persuaded. We talk until we are persuaded or until we have persuaded our interlocutor. At that point, I know what to do. I might still fail to act, but that does not create a new kind of problem. All I can do is again take up the question of what I am doing by examining my reasons, that is, by opening myself up to persuasion. If my beliefs are really not capable of determining my action, then I am not free. It may well be that we all lack freedom in some respects: no matter what we say to ourselves, we cannot get ourselves to change our patterns of behavior.

Narrative and What Might Have Been
When we carry on a conversation, we listen and we respond. The conversation shapes a world in which we are both participants and observers. My next sentence is not something I plan in advance. It is not the realization of an abstract possibility. It is rather my contribution to and acknowledgment of this world. Before I got to this point, I could not predict what I would say because it is the actual conversation that creates the possibility. When we critically examine our reasons for speaking as we do, we bring into awareness a world of meaning. We do so by offering a narrative.

Of the natural world, there is no category of “what might have been.” A natural history is actually not a history at all: it is a description of causes and effects. We cannot look back to the time before man and speak intelligibly of the possible: there is only what happened. When we say, “what if the meteorite had not hit the earth and the dinosaurs had continued,” we are placing a human perspective inside a natural history. We are close to science fiction.

On the other hand, in a person’s life – as in a political community – the most important tense is that of what might have been. We cannot write a human history without invoking the possible, because that history is an account of decisions. Decisions rest on reasons and reasons imagine the world one way rather than another. We cannot understand what has happened without imagining what might have been. We construct the possible, in other words, when we describe the actual.

In a causal world, whatever will be is already determined by what is. A world of reason alone similarly has no dimension of possibility. A mathematical proposition is true or false; it is not one possibility among others. Because we know ourselves as free, however, we never appear to ourselves without possibilities. I understand my present situation by placing it in relationship to what might have been. Only so can I understand my present as the product of my own decisions. Without this thought, I could not believe myself free. A condition in which we cannot give such an account is one that we characterize as slavery – whether real or metaphorical. Slavery is the null point of the human condition, and just for that reason it is never an absolute condition. Even the slave engages in conversation, explains himself to others, imagines the possible, and makes choices – across some range.

To say that our world always exists in relationship to the possible is to recognize the deep relationship between the human world and the imagination. What might have been and what might be exist only for the imagination. Plato’s account of Socrates’ trial, for example, portrays him saying that the outcome might have been different had he, Socrates, been a bit more persuasive. The point is no different in our practice of recording judicial dissents. The dissent represents what might have been. It tells us that law is not a matter of causes but of reasons. It might have been different. Indeed, it might still become different. To understand the decision as a decision, we must imagine the possible. Imagining the possible is the construction of narrative.

When we produce a narrative of our own reasons, we understand our world as the product of our own freedom. Those reasons are the beliefs and practices of which we have been persuaded. I hold to this account, not some other possible account. Asked to explain myself, this is what I say and this is what I will defend – forcefully if necessary. When we no longer can identify our world with our freedom, we suffer from anomie, depression and ultimately a sense of meaninglessness. We seem to have no possibilities apart from what is; we are subject to causes.

The loss of freedom that comes from penal incarceration is less about a bounded space – the jail cell – than about the failure of the world any longer to be the product of our freedom. Without possibilities, I am no longer an agent. The free subject, on the other hand, is always writing the narrative of his or her own life. Doing so, he is creating his own possibilities retrospectively and prospectively.

Freedom and Contingency
The forms of persuasion change across fields and across time. Once, it was enough to say that one had been persuaded by the presence of Christ; more recently, one might say that one was persuaded by a course of psychoanalytic therapy. The character of a persuasive argument is not the same in politics as in the family. A political truth is not a scientific truth, and neither is a religious truth. When one applies the same standard of truth to different kinds of questions, one ends up with the creationist in place of the scientist or the ideologue in place of the democrat.

In political life, the forms of persuasion are rhetorical. For example, the meaning of the American Constitution is not something apart from the set of arguments that persuade us at any particular moment. That meaning is not something to be discovered; it is not timeless. It is not a matter of political science, and not a matter of recovering a past intention. It is the set of beliefs in circulation and to which we – or more importantly the courts – appeal in explaining what the law is. Arguments about the Constitution are right, when they persuade. We know that they have persuaded when individual citizens and government institutions organize their activities to align with these representations. At that point, we see the Constitution as the product of our freedom.

There is no escaping this. If I ask what the Constitution means, I cannot simply assert that we are bound to the plain meaning of the text, or to the intent of the framers, or to the latest precedents of the Court. That is, I cannot say this without offering an argument as to why this is the correct approach. I must persuade my interlocutor that I am correct.

If I claim that I have reached my own understanding of the meaning of the Constitution, regardless of what anyone else thinks, that no longer counts as a political argument. No one has any reason to pay attention to my claim of truth, until and unless I try to persuade them. I can only persuade by entering into a dialogue, which means to offer reasons that make sense in light of our common world of beliefs and practices. I cannot short-circuit this conversation by claiming a privileged point of truth, for the truth of the Constitution is exactly what is at issue. A political theory does not carry its own warrant; it must persuade.

Persuasion is contingent, but it is not arbitrary, for it is embedded in an entire world of meaning. I am persuaded when I see my way forward. That is neither an interior nor an exterior experience. Deciding, I bring myself and my world into a sort of alignment. That alignment can be, but is not necessarily, the application of a general rule to the particular. The relationship can just as easily run in the other direction: through the particular, I come to understand the general in a new way.

We make arguments in both directions all of the time. I might, for example, decide what is just under particular circumstances by applying a general rule of non-discrimination. On the other hand, I might learn what non-discrimination entails by deciding that affirmative action on behalf of a particular claimant is unjust to others. Indeed, we may not know in a particular case which way the argument ran. This is why judges will always accuse each other of “result oriented” jurisprudence.

Persuasion is always bound to context, but that hardly means that we are not capable of taking up a critical attitude toward our beliefs and practices. It does mean that we go wrong if we think that we can subject the whole of our beliefs and practices to a single, simultaneous critique. Then, we are back at the traditional Cartesian project of trying to find an Archimedean point from which we can reason with certainty. There is no such point from which we can build our entire world anew.

What we can do, however, is pause with respect to any particular belief or practice and ask whether it survives a critical examination. We ask ourselves whether we remain persuaded. We must answer the question honestly. If we fail to say what we actually think, then we will not see ourselves in the discourse. We will not be persuaded, because we are not there. To be there is to make of philosophy a practice of freedom.

Paul Kahn is Robert W. Winner Professor of Law and the Humanities, and Director of the Orville H. Schell, Jr. Center for International Human Rights at Yale Law School. He is author of many books, including The Cultural Study of Law: Reconstructing Legal Scholarship and, most recently, Political Theology: Four New Chapters on the Concept of Sovereignty.

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  1. Readers will see the continuing influence on my thought not just of Schmitt, but of Hannah Arendt on the nature of thinking and the role of persuasion in politics, of Charles Taylor on social imaginaries, as well as of contemporary theorists of rhetoric such as Eugene Garver and Bryan Garsten.