Sovereign Decisionism

Glen Newey

‘Sovereign is he who decides on the exception,’ Carl Schmitt famously wrote in Political Theology. Article 48 of the Weimar Constitution, which so excited Schmitt, invested the president with emergency powers. After they came to power in 1933, the Nazis duly got president Hindenburg to use article 48 to annul constitutional rights in the wake of the Reichstag fire.

Executive fiat survives intact in today’s democracies. In the UK, Orders in Council persist as executive powers with the force of primary legislation, exercised under the royal prerogative – they were used in 2004, for example, to overturn a court ruling that the forcible exile of Chagos islanders was unlawful.

The 2004 Civil Contingencies Act grants ministers the power to decide what counts as an emergency, ‘in so far as an event or situation involves or causes disruption of a specified supply, system, facility or service’. On this basis, ministers could rule that the country was in the grips of an emergency if milk deliveries got disrupted. The CCA at least incorporates these goalpost-setting powers as part of its rubric. Elsewhere, it seems, appealing over the law to warm popular sentiment gives the executive all the scope that Schmitt could have wanted.

Tax law, for instance, seems to have become a matter of sovereign decisionism. This week the Times has been going after tax avoiders, including the comedian Jimmy Carr. It’s undoubtedly gutting that a man who makes upwards of £3 million a year can whittle his income-tax exposure down to 1 per cent via offshore wheezes like the K2 scheme. And so, after taking a quick glance at his moral compass and the headlines, David Cameron denounced Carr’s tax avoidance from the G20 summit in Mexico as ‘morally wrong’. Now the government is prey to the press’s open season on tax-scamming Tory supporters and donors, not to mention the Cameron family. Challenged on his silence about the tax-dodging Tory supporter Gary Barlow, Cameron went all Schmittian, saying that he’d whacked Carr because the case was a ‘particularly egregious’ one, for which he had ‘made an exception’.

The PM didn’t say exactly what he had made an exception to, but one plausible candidate would be the rule of law. No one’s likely to shed too many tears for Carr’s wallet, but larger issues obtrude: his dodge via the K2 loophole is accepted by all sides as legal. Thomas Hobbes, not often acclaimed as a liberal, said that citizens’ liberties depend on the silence of the law. Nowadays liberty seems to depend on the silence of the tabloids. The trouble with cheering on Cameron as he sticks it to Carr – useful in buffing up the PM’s demotic cred after ditching the 50p tax rate – is that it tends to stifle complaints about executive breaches of the law elsewhere.

Sovereign exceptionalism offers a useful way of overriding democratic norms when the plea of emergency lies to hand. The US has baulked at ratifying the 2002 Rome Statute creating the International Criminal Court, which was set up to implement the principle of universal jurisdiction. The Obama White House upholds, however, a principle of universal extrajudicial execution, via its use of drone attack-bots to bump off suspected badhats across the Middle East with inevitable ‘collateral damage’, i.e. killing civilians (estimates vary between 800 and 4000).

Obama’s administration has come up with a useful method of cutting civilian drone killings – redefining ‘combatants’ to mean all military-age males. This is handy in laundering such incidents as the killing last year of the 16-year-old son of al-Qaeda suspect Anwar Awlaki by a drone in Yemen (Awlaki himself had been killed a couple of weeks earlier). Reason of state waives the rules, be it to vindicate drone attacks, or taxes on drones. Those outside the Beltway, though, should avoid abetting regimes that make free use of what Jeremy Bentham called ‘anarchical fallacies’.


  • 22 June 2012 at 6:06pm
    streetsj says:
    I don't think the K2 scam is legal. It relies on the lie that the money "lent" to the beneficiary will never have to be repaid. if that is the case - and no one would enter the scheme if it did have to be repaid - then it is not a loan and so it is taxable.
    What is strange is why HMRC don't go after them all.

    The Cameron exception was , surely, simply on not normally commenting on private individuals. And clearly he can't be expected to comment on everyone's tax affairs. It is interesting how the knee-jerk anti-Cameroon response is to condemn his response. Why? They should wallow in it. Either it is a crass error throwing himself and the Tory donors wide open to attack or it's a highly commendable stand against unacceptable, antisocial practices by the rich.

    I, hopeless romanticist that I am, believe it is the latter. Neuter Cameron nor Osborne is stupid. This was not a spontaneous response. Osborne had already said the same thing in the budget. They know it will hurt their own donors (as would the charity limit have done) - perhaps they deserve encouragement in this initiative not reflex spite.

  • 23 June 2012 at 10:54am
    outofdate says:
    'Neuter Cameron' is an excellent typo.

    • 23 June 2012 at 2:42pm
      streetsj says: @ outofdate
      It is isn't it. Damn autokerrect.

  • 24 June 2012 at 8:37am
    Mike Killingworth says:
    Back in the 1980s, when my then landlady's boyfriend was explaining why he'd had to abandon his PhD to sort out the finances of his family's timber merchants, he told me: "the Inland Revenue has powers to decide matters of fact".

    I presume it still has. It also now has adequate funding. So why doesn't it go after the evaders? I suspect that much of it is because many of its staff wish they were on the other - considerably better paid - side of the fence.

    There is a clear duty on every Trotskyist in England. Retrain as an accountant. Now.

  • 25 June 2012 at 8:07pm
    Ally says:
    Surely Schmitt's decisionist moment was specifically that when a constitutional arrangement was threatened to a degree where that constitution cannot be saved by normal means?

    The discussions of the K2 scheme don't seem to have been joined with events in Scotland. Up here, it was the exposure of the earlier innovative accounting around "loan"-based EBT scheme payments which has triggered the collapse of one pillar of the Establishment ("the Rangers") with possibly more to come.

    This has led to the fascinating sight of not one but three competing football governing bodies each aspiring to be Schmitt's sovereign and define the exception to their own rules. From the derided old-school Blazers of the SFA and SFL through to the new-school Technocrats of the SPL, they have struggled unsuccessfully to shore up the edifice and put a Clone Rangers back in the traditional place.

    In Schmitt's later Theory of the Partisan he discussed modern partisans defending the integrity of their home territory "linked to an information network with underground transmitters". It is such a network, disparaged as "internet bambots" by professional journalists for whom a day's work is grazing on press releases, that has changed the territory of Scottish football. Over the past few days, the interesting overlay has been the groundswell of revulsion from other clubs' support which has forced club after club in the SPL and now in the SFL to come out in favour of maintaining sporting integrity by rejecting the Clone Rangers.