This essay has been peer-reviewed by “Frictionless Sovereignty” special issue editor (Ryan Bishop), and the b2o: An Online Journal editorial board.

When Donald Trump addressed the UN General Assembly in New York on September 25, 2018, something seemingly unprecedented happened: in response to his boasting about the achievements of his presidency, the General Assembly erupted into spontaneous laughter. Never before had the President of the US, the leader of the most powerful state on earth, been openly laughed at like that.

This episode concerning the most powerful sovereign today is useful to present the frictionlessness of sovereignty as an antinomy. On the one hand, there are those for whom sovereignty is never frictionless. Rather, sovereignty is always the response to the exception (Schmitt), an excess (Bataille), a series of ruptures that indicate attempts to discipline or normalize that which is “abnormal” (Foucault), the product of how living is configured in the zone of indistinction (Agamben), or the response to the “rogue” (Derrida).

To this list we could easily add thinkers before the twentieth century, such as Machiavelli (for whom the prince is not subject to any morality and hence he can use any means—which is to say, frictions—to perpetuate his power), or Hobbes (who views the Leviathan as the “king of the proud” who need to be restrained), or even Rousseau (always lamenting the faults of modern civilization that make the sovereign right to capital punishment necessary).

There are significant differences between the various positions in this tradition. But the idea that unites all the thinkers noted above is that the frictionlessness of sovereignty is nothing but a chimera, a delusion whose only utility consists in the effects it produces—effects that manifest the operation of sovereignty’s power.

On the other hand, there is another long tradition that posits the possibility of a frictionless sovereignty. We can find this idea in Plato’s ideal state, in Augustine’s city of God, or in More’s utopia. There are two immediately recognizable characteristics of this ancient and early modern conception of a frictionless sovereignty. First, it is anti-democratic in the sense that the demos (the vulgus or varia multitudo) is seen as the source of friction and all these authors imagine ways to bypass it. Second, frictionless sovereignty is an ideal that cannot be actualized in reality. Thus, for instance, Augustine posits in fact two cities of God, one on earth that functions as the unreachable destination of the “pilgrims,” and one that is the real city of God, which is eschatological.

In the twentieth century this frictionless sovereignty—surprisingly, given its history—leads to different conceptions of democracy, albeit a democracy as not reliant on the people. Thus, we find theories such as Schumpeter’s that associate democracy with the calculation of individual interest which is in turn guaranteed through economic activity. This leads ultimately to the neoliberal conception of the “sweetness of commerce” as the pacifying agent of modernity (Albert Hirschman). Alternatively, there is an increasing proliferation of theories of deliberative democracy. The main representatives here are Rawls and Habermas. Deliberative democracy pursues an ideal according to which rationality can guarantee consensus and hence a harmonious sovereignty.

These more recent versions of a frictionless sovereignty also share two key characteristics. First, they repress the passions so as to arrive at different conceptions of rationality that supposedly purge the political of conflict. Second, the frictional is again unrealizable but in a different way. In the theories that rely on economics, the frictional is the financial horizon of the “death of sovereignty” in the era of neoliberal globalization. In deliberative democratic theories that tend to lean heavily on Kant’s moral theory, the frictional is the transcendental horizon of the coincidence of morality and politics.

Where, in this vast picture, can we situate the laughter that greeted Trump at the UN Assembly? The laughter indicates some friction but nothing of the sort envisaged by any of the former thinkers listed above. But this laughter does register enough friction nonetheless to be incommensurate with the passionless pursuit either of individual interest or rational deliberation.

Does this mean that we can simply ignore this burst of laughter as irrelevant to sovereignty after all? This may appear as a forced conclusion, one that strives to evade the need for an explanation of a reaction to a sovereign’s words. Does it mean, then, that the laughter of the delegates in the US undermines the distinction entailed by frictionless sovereignty, that is, sovereignty as either reliant on friction or as dependent on a horizon that is completely devoid of friction?

Instead of seeing laughter as miraculously overcoming a distinction that, as the above outline suggests, is sedimented in the history of political thought from antiquity to the present, maybe laughter shows that this was not a stable distinction to begin with. This is to treat the distinction at the heart of frictionless sovereignty as an antinomy. An antinomy not in the strictly Kantian sense, whereby a middle term comes to mediate and resolve the distinction by showing that the premises of each side were deficient. Rather, an antinomy in the more original sense of the word, that is, as something that is adjacent to the law in such a way as to challenge and resist it.

Let me be clear: I do not hold that any kind of laughter of necessity is a form of resistance. The laughter of the court jester, for example, can be an attempt to expend the drive to laugh in an innocuous way so as to eschew any challenge to instituted power. Laughter is not ipso facto subversive. Rather, laughter can enact resistance when it is directed against sedimented and hence hegemonic forms. For instance, I have argued elsewhere that Kafka’s laughter is directed primarily against the idea of an individual that has an autonomous free will, whereby Kafka’s laughter also suggests an alternative conception of freedom (Vardoulakis 2016).

The case of the laughter at the UN General Assembly shows how laughter can challenge and resist the framework within which sovereignty is thought. The reason is that laughter points to something that remains obscured in how we think sovereignty today—namely, authority. Further, this is important in how we think of sovereignty today, in an age where authoritarianism and populism threaten to deform the face of politics. Let me explain by starting with authority.

If we reflect on the incident at the UN that I opened with, it is not as unusual as it may at first appear. It repeats an experience that we all have encountered, namely, how laughter marks the reduced authority of someone who occupies a position of power. For instance, the child’s laughter at an instruction of the parent or a teacher indicates the diminution of the authority of the one laughed at. As Hannah Arendt puts it, laughter is the “surest way” to undermine authority (Arendt 1970, 45). The reason that the event in the UN General Assembly seemed so strange is that we have forgotten nowadays the important role authority plays in how we understand power.

Further, this example shows the inverse relation of populist authoritarianism and authority. The increase of authoritarianism through populist politics and by appeal to “post-truth” strategies exhibits a parallel decrease in authority. How are we to understand this phenomenon? First, we need to understand exactly what authority means.

For around two millennia, authority was a pivotal political concept, so much so that people often did not even provide a definition when talking about it, since everyone knew that one has authority when one cannot be argued with (Arendt 1961). Or, as Spinoza puts it, authority is “impervious to argumentation” (Spinoza 2001, 139). The fact that authority was supposed to remain unchallenged was also signified by external markers, a tradition that remains alive today: e.g. the gown of the judge indicates that his verdict cannot be confuted in the courtroom, or the uniform of the army general signifies that lower ranked officers cannot challenge his commands (Kojève 2014).

Authority is not the same as political power. As the example of Trump shows, one can enjoy sovereign power but lack authority. This is already clearly defined by Cicero in antiquity, when he insists that in the Roman Republic power rests with the people’s tribunes whereas authority only with the Senate (Cicero 1928, 492). In fact, the discrepancy between authority and sovereign power is a significant distinction to help us evaluate the health of the polity. For instance, Spinoza argues that Moses was the exemplary figure to combine authority with sovereign power, but this meant that he remained unchallenged, which was a precipitating factor in the destruction of the Jewish state (Spinoza 2001, chapter 17; see also Vardoulakis 2020).

Nor does the assertion of authority necessarily coincide with a diminished capacity of the polity to function democratically. In certain instances, people need to defer to the authority of one who has the expertise to make decisions about complex issues on their behalf, just as in our everyday life we readily defer to the authority of a doctor to treat a medical ailment. Spinoza was one of the few thinkers who was both a democrat and highly invested in examining the phenomenon of authority, which led him to explore the tension between the democratic imperative to disputation and the requirement for authority to be obeyed. Spinoza shows that this tension can be productive for a well-functioning democracy (Vardoulakis 2020).

Trump is a good example of the inverse relation of authoritarianism and authority. One of the oft-repeated promises of his 2016 presidential campaign was that he was going to “drain the swamp” of Washington DC. During his administration, this translated in the shrinking of the civil service and in the appointment of officials without experience to significant posts. In other words, Trump systematically undermined the importance of authority understood as the political and administrative expertise in the running of government. This has been a significant factor in the diminution of his own personal authority and an important reason why world leaders regarded as laughable his boasting about his presidency at the UN.

The inverse relation of authority and authoritarianism is not new. Marx also describes it in the Eighteenth Brumaire of Louis Bonaparte (Marx 1976a; see Vardoulakis 2013). Not unlike Trump, Louis Bonaparte is an authoritarian ruler and a populist—Marx says that he won over the poorer people by giving them champagne and sausages. Further, just like Trump, no one took him particularly seriously and no one thought that he was competent enough to lead France. And yet he prevailed to found the Second French Empire.

We can also glean this inverse relation in the late work of Hannah Arendt (Arendt 1970), where it is presented as the inverse relation of violence—explicitly associated with authoritarianism and totalitarianism—and power—linked with authority.

So, if understanding the function of authority is important in discerning the operation of power and in achieving our democratic ideals, then why is authority hardly discussed in political philosophy and theory today? According to a historical explanation, the power of authority starts waning since the Reformation, which precipitates a progressive change of its meaning, a process that the French revolution further accelerates (Marcuse 1973). This has led scholars to argue that authority is absent from our world today (Arendt 1961). But examples such as the ones offered above indicate that far from being absent from our world, authority still plays a determinative role through its inverse relation to authoritarianism.

A more plausible explanation for the absence of attention to authority today is a series of powerful shifts in academic discourse in the first half of the twentieth century that have also influenced the general discourse about politics. The most important are the following:

1. 1. The shift of the meaning of authority to designate political power. Here, Weber’s work is critical. In German, the term “Herrschaft” comes to signify almost exclusively political authority, while the term “Authorität” denotes almost invariably ecclesiastical authority. Using the term Herrschaft, Weber develops his influential analysis of the charismatic leader who is authoritarian or fascist (Weber 2004), thereby obscuring the importance of a figure of authority in the sense of someone who cannot be argued with.
   2. The gradual confinement of the meaning of authority to the psychological sphere. This is particularly due to the influence of behavioral psychology, and a particular landmark are the Milgram experiments (Milgram 1974). Even though psychoanalytic studies on authority are not be confused with behaviorism, they also tend to evade its political import (see Sennett 1980).
   3. The substitution of authority with authoritarianism as an object of study in political philosophy and theory. Here the Frankfurt School is particularly important (see Adorno 1950), especially because of the influential insight that authoritarianism not only is opposed to democracy, but in fact it uses the population to prop itself.
   4. The intense focus on totalitarianism as a system of governance that transcends the individual, which, as Hannah Arendt demonstrates (1962), was critical for understanding the rise of fascism, totalitarianism, and the Holocaust.

The effect of Weber’s work has been to narrow the use of the word “authority” to refer only to political authority within an established state so as to function as a near synonym of sovereignty. All work in the past quarter century uses the term authority in this way (e.g. the most significant monograph Huemer 2013; work on political theory such as Flathman 1980 or Wendt 2016 or legal studies such as Raz 1979 or Edmundson 2010). The rich, two-millennial tradition that determines authority as a figure that cannot be argued with and which is incommensurate with power has all but disappeared from view.

Further, the circumscription of authority into psychology has shifted our view from authority’s political significance. The only political implication suggested by Milgram’s experiments is that regimes such as the USSR that rely on obedience deprive individuals from their freedom. But such political inferences that go beyond the immediate object of study of behavioral psychology seem more of an expedient expression of a shared opinion in the Zeitgeist of the Cold War.

To compound the above, the Frankfurt School and Arendt have helped focus on political phenomena such as authoritarianism at the expense of authority, while paying scant attention on their inverse relation. This does not mean that the inverse relation of authority and authoritarianism was never noted. But the most perspicacious examples of the presentation of the inverse relation of authority and authoritarianism from around that time remain free from the influence of a political theory and political philosophy that systematically seeks to repress the importance of the traditional concept of authority. I am thinking here of works of art such as Charlie Chaplin’s The Great Dictator (1940) that presents an authoritarian figure whose affectations are so laughable as to be devoid of all authority.

The critical purchase of Weber, critical theory and Arendt is undisputed in shaping the political discussion as well as our understanding of politics today. For instance, since Trump’s election, there is a renewed interest in Arendt’s work on totalitarianism and its contemporary relevance (Berkowitz 2017). Or the rise of populism as a threat to democracy that simultaneously leads to the rise of authoritarianism is customarily interpreted along the framework provided by the critical theory of the Frankfurt School, according to which authoritarianism is possible through the populist manipulation of the people (see Brown et al., 2018).

The few attempts in political theory to rescue the concept of authority are conducted with the provision of overcoming the traditional concept of authority—according to which one has authority when one cannot be argued with (Arendt 1961; Kojève 2014; Ricoeur 2007). Thus Richard Flathman interrogates the relation of authority and “the authoritative” in The Practice of Political Authority but the framing does not allow him to note the inverse relation of authority and authoritarianism. Bonnie Honig (Honig 1993) attempts to rescue a concept of authority through a re-interpretation of Arendt, but her strategy is again to leave behind the “outdated” concept of authority and present authority instead as a form of a performative that, like the Declaration of Independence, can provide a foundation that allows for the new. It allows for what Honig refers to as “(re)founding.”

No matter how perceptive such analyses are, they find it hard to account for phenomena such as the laughter at Trump in the UN Assembly. They also fall short in recognizing the discrepancy between sovereign power and authority, and they forget about the positive role that authority can play in a democratic polity. As a result of forgetting authority, contemporary discourse often lapses into a despair about the fate of democracy when authoritarianism is on the march (Brown et al., 2018). This despair is due to the perception that sovereignty in neoliberalism no longer encounters enough political resistance or friction.

There is a grave danger to democracy when authority is obscured from view while authoritarianism flourishes. The reason is that authority does not disappear. Rather, it is displaced in ways that authorize those in power to promote their interests. For instance, it is beneficial to Trump to lack authority because this allows the religious right in the US to authorize him to act on their behalf. This authorization is supported by having a Vice President who is aligned with the religious right. And it essentially moves Trump to subvert institutions such as the High Court by installing judges likely to regress on a host of issues such as civil and reproductive rights.

This process of authorization often operates on the logic of the least evil (Weizman 2012). The majority of the religious right in the US do not like Trump and they do not really want to vote for him. Rather, they voted for him in 2016 and they continue to support him because he is seen as more likely to serve their interests. The fact that he lacks authority makes it more likely that he will support the base who elected him, and vice versa. Democracy is in grave danger of being overwhelmed with short term interests and populist leadership if the function of authority is not taken into account.

My resolution of the antinomy of sovereignty suggests that the analytic power of the political discourse is stunted when the discourse is too squarely focused on authoritarianism as the expense of authority. Well-analyzed and systematically research phenomena such as authoritarianism and populism may be enriched when the traditional concept of authority is also introduced, since it is the concept of authority as impervious to argumentation that has had such a determinative influence on how key political ideas developed over two millennia—concepts that still determine how political practice and its understanding unfold today.

For this, we need to keep the inverse relation of authority and authoritarianism in sight. It is actually Arendt who in her late work describes the inverse relation of authority. As I note above, her earlier work contributed to the idea that authority is absent from our world today (Arendt 1961, Arendt 1962), replaced by categories such as totalitarianism. However, in On Violence (Arendt 1970) she draws a distinction between power, which is explicitly linked to authority, and violence, associated with authoritarianism and totalitarianism. A key feature of this distinction is their inverse relation. This is presented from both sides. First, “tyranny … [is] the most violent and least powerful of forms of government” (Arendt 1970, 41), and, second, “every decrease in power is an open invitation to violence” (Arendt 1970, 87). The decrease of authoritarianism contributes to the increase of authority and the decrease of authority to the increase of authoritarianism.

Even though Arendt notes the inverse relation and provides a quasi-phenomenological description, especially in the third chapter of On Violence, still nowhere does she note why this inverse relation matter for a democratic politics. This is another way of saying that Arendt does not note the paradox of a sovereignty that is both frictionless and imbued in friction when she considers the relation of power and violence, or of authority and authoritarianism. I hold that an answer to explore this paradox of frictionless sovereignty requires that we note the way in which authority contributes to the well-functioning of a democratic polity.

The traditional definition of authority as being “impervious to argumentation” (Spinoza 2001, 139) may appear at first to be a threat to democracy in the sense that authority appears to stifle the pluralism of ideas that democracy thrives on. This is certainly true, and that’s why a democrat like Spinoza is fiercely critical of figures of authority. Because a leader with too much authority stifles the public disputes that are necessary for democracy, the ancient Athenians had an extraordinary law, according to which when a leader became popular, he was expelled from the city (Nietzsche 2016). We certainly need to remain vigilant when we encounter authority.

But there is also another side to it. It consists in that, by its definition as being beyond dispute, authority raises the possibility of truth. When the judge delivers a verdict in the courtroom, the judge is assumed to be extracting the truth from the given evidence. When a general issues a command, the troops assume that it conforms with a battle strategy and the information the general has at his disposal. A teacher has authority in the classroom when it is assumed that the teacher is communicating true knowledge to the students.

The judge and the general may of course be wrong. They may have made a mistake. And the knowledge the teacher is communicating may have been superseded. It is possible to make judgments about the judge, the general and the teacher because they aspire to a certain truth. By contrast, when a populist authoritarian like Trump proclaims “send them home,” the visible racism of such a statement unburdens Trump of any appeal to veracity. This diminishes his authority but also makes it impossible to critique a populist leader by appeal to truth. Authoritarianism does not need truth. Conversely, to speak with authority, one aspires to be beyond dispute, not because one is simply attracting support, but because one espouses a position that others also can see as tenable—as true.

A figure of authority puts an end to a dispute or conversation by virtue of the fact of being perceived to occupy the truth. But no one has absolute authority. The possibility always remains that one will be able to offer a more compelling account of the true (Lucchese 2009). A figure of authority can never be certain that someone else will not raise their voice in reaction (Vardoulakis 2020). Allowing for the operation of authority is the opposite of a “society of the spectacle” where everyone is encouraged to raise their voice, in unified conformity, so that their voice in fact no longer matters.

Authority is important for democracy because it enables the voice raised to make a point matter. Paying attention to authority in the political discourse is to encourage everyone to take responsibility as an indispensable condition for the optimal operation of democracy. Even though there will never be any guarantee that the right decisions will be taken, and even though mistakes will be made, democracy can only operate when the voice is not lost in a crowd that mindlessly follows an authoritarian figure. Thus authority shows that friction is indispensable for a determination of political power.

But there is another side too. Authority requires the possibility of friction but it also requires the idea of the frictionlessness of sovereignty. The most readily available illustration is in cases of crisis or emergency. During a medical emergency, we defer to the authority of the doctors. During a financial crisis we listen to the economists. In the case of a pandemic, the politicians and the public seek the expert advice of public health authorities.

In political philosophy, the need to submit to authority in certain circumstances is often discussed. In the seventeenth century, this was customarily done with reference to the figure of Moses (Vardoulakis 2019). Leading the Jews through the desert in search for a state, Moses demanded authority. The attainment of the end required that his authority is strong, which was the case since it was both theological and political as he was both a prophet and the political leader of his people (Ricoeur 2007).

This tradition that valorizes the function of obedience to authority does not suggest that the value of political judgment is secondary or diminished. It does not mean that the political decisions we are called upon to make and which create the political friction described earlier disappear. To the contrary, it points to the paradox according to which under certain conditions the prudent or rational thing to do is to suspend one’s judgment and to submit to someone else’s authority. This paradoxical function of authority, suspended between the possibilities of challenging it or submitting to it, can lead to a radical democratic position, as for instance in the political philosophy of Spinoza (Vardoulakis 2020).

So what does the antinomy of the frictionless sovereignty teach us? It shows that interminable resistance and frictionless obedience are the obverse sides of the same coin, namely, authority. Not only is authority not eliminated in our “post-modern” world. Moreover, it shows the precariousness of our political judgment to obey or disobey. And because our political judgments are unstable, never purely rational and hence impossible to lead to an absolute truth, it puts the onus on the political agents—individuals, associations, organizations, parties, states and state alliances—to remain vigilant about the way in which they may fail or succeed.

Let me put this in a different way: If the idea that sovereignty relies on friction often leads to a despair about our contemporary political predicament that lacks resistance, and if an illusion of frictionless sovereignty defers our political fulfilment to some unattainable future—then a politics attuned to authority may have, unexpectedly, the capacity to galvanize our energies and to bring us face to face with the exigency to assess our circumstances so as to decide whether we ought to obey or disobey. In this sense, authority has the capacity to generate a space where contestation, dissensus and disagreement can be allowed to be productive forces that make possible “the space in between” (as Arendt puts it) where the political thrives.

Dimitris Vardoulakis was the inaugural chair of Philosophy at Western Sydney University. He is the author of The Doppelgänger: Literature’s Philosophy (2010), Sovereignty and its Other: Toward the Dejustification of Violence (2013), Freedom from the Free Will: On Kafka’s Laughter (2016), Stasis Before the State: Nine Theses on Agonistic Democracy (2018), and Spinoza, the Epicurean: Authority and Utility in Materialism (2020). He is the director of “Thinking Out Loud: The Sydney Lectures in Philosophy and Society,” and the co-editor of the book series “Incitements” (Edinburgh University Press).

References

Adorno, Theodor W., Daniel J. Levinson, Else Frenkel-Brunswik, and Nevitt Sanford (1950) The Authoritarian Personality. New York: Harper & Row.

Agamben, Giorgio (1998) Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen. Stanford: Stanford University Press.

Arendt, Hannah (1961). “Authority,” Between Past and Future. New York: Viking, pp.91-141.

— (1962) The Origins of Totalitarianism. Cleveland: Meridian.

— (1970) On Violence. New York: Harcourt.

Augustine (1998) The City of God Against the Pagans, ed. and trans. R.W. Dyson. New York: Cambridge University Press.

Bataille, George (1988-1991) The Accursed Share: An Essay On General Economy, volumes 1-3, trans. Robert Hurley. New York: Zone Books.

Berkowitz, Roger (2017) “Why Arendt Matters: Revisiting The Origins of Totalitarianism.” Los Angeles Review of Books, 18.03.2017.

Brown, Wendy, Peter E. Gordon and Max Pensky (2018) Authoritarianism: Three Inquiries in Critical Theory. Chicago: University of Chicago Press.

Cicero (1928) De Legibus, trans. Clinton W. Keyes. Cambridge, Mass.: Harvard University Press.

Derrida, Jacques (2005) Rogues: Two Essays on Reason, trans. Pascale-Anne Brault and Michael Nass. Stanford: Stanford University Press.

Edmundson, William A. (2010) “Political Authority, Moral Powers and the Intrinsic Value of Obedience.” Oxford Journal of Legal Studies 30:1, 179-91.

Foucault, Michel (1983) “The Subject and Power,” in Hubert L. Dreyfus and Paul Rabinow (eds.) Michel Foucault: Beyond Structuralism·and Hermeneutics. Chicago: University of Chicago Press, second ed., p. 208–26.

Habermas, Jürgen (1984) The Theory of Communicative Action, Vol. 1: Reason and the Rationalization of Society, trans. T. McCarthy. Boston: Beacon.

— (1987) The Theory of Communicative Action, Vol. 2: Lifeworld and System, trans. T. McCarthy. Boston: Beacon.

Hobbes, Thomas (1999) Leviathan, ed. Richard Tuck. Cambridge: Cambridge University Press.

Hirschman, Albert O. (1997) The Passions and the Interests: Political Arguments for Capitalism before its Triumph. Princeton: Princeton University Press.

Honig, Bonnie (1993) Political Theory and the Displacement of Politics. Ithaca: Cornell University Press.

Huemer, Michael (2013), The Problem of Political Authority: An Examination of the Right to Coerce and the Duty to Obey. New York: Palgrave.

Kant, Immanuel (1999) Practical Philosophy, ed. and trans. Mary J. Gregor. Cambridge: Cambridge University Press.

Kojève, Alexandre (2014) The Notion of Authority (A Brief Presentation), trans. Hager Weslati. London: Verso.

Lucchese, Filippo del (2009) Conflict, Power, and Multitude in Machiavelli and Spinoza. London: Continuum.

Machiavelli, Niccolò (1988) The Prince, ed. Quentin Skinner and Russell Price. Cambridge: Cambridge University Press.

Marcuse, Herbert (1973) “A Study on Authority”, in Studies in Critical Philosophy, trans. Joris de Bres. Boston: Beacon Press, pp. 49-155.

Marx, Karl (1976) The Eighteenth Brumaire of Louis Bonaparte, trans. Clemens Dutt, in Collected Works, vol. 11. New York: International Publishers, pp. 103-97.

Milgram, Stanley (1974) Obedience to Authority: An Experimental View. London: Tavistock.

More, Thomas (2002) Utopia, eds. George M. Logan and Robert M. Adams. Cambridge: Cambridge University Press.

Nietzsche, Friedrich (2006) “Homer’s Contest,” in On the Genealogy of Morality and Other Writings, ed. Keith Ansell-Pearson, trans. Carol Diethe. Cambridge: Cambridge University Press, 174-81.

Plato (2003) Republic, trans. Paul Shorey. Cambridge MA.: Harvard University Press.

Rawls, John (1999) A Theory of Justice, rev. ed. Cambridge MA.: Belknap Press.

Raz, Joseph (1979) The Authority of Law: Essays on Law and Morality. Oxford: Oxford University Press.

Ricoeur, Paul (2007) “The Paradox of Authority,” in Reflections on the Just, trans. David Pellauer. Chicago: University of Chicago Press, pp. 91-105.

Rousseau, Jean-Jacques (1994) Discourse on Political Economy and The Social Contract, trans. Christopher Betts. Oxford: Oxford University Press.

Schmitt, Carl (1996) The Concept of the Political, trans. George D. Schwab. Chicago: University of Chicago Press.

Schumpeter, Joseph A. (1943) Capitalism, Socialism and Democracy. London: Routledge.

Sennett, Richard (1980). Authority. New York: W.W. Norton.

Spinoza (2001) Theological-Political Treatise, trans. Samuel Shirley. Indianapolis: Hackett.

Weber, Max (2004) The Vocation Lectures, trans. Rodney Livingstone. Indianapolis: Hackett.

Weizman, Eyal (2012) The Least of All Possible Evils: Humanitarian Violence from Arendt to Gaza. London: Verso.

Wendt, Fabian (2016) “Political Authority and the Minimal State.” Social Theory and Practice 42:1, 97-122.

Vardoulakis, Dimitris (2013) Sovereignty and its Other: Toward the Dejustification of Violence. New York: Fordham University Press.

— (2016) Freedom from the Free Will: On Kafka’s Laughter. Albany, NY: SUNY.

— (2019) “The Figure of Moses: The Origins of Authority in Spinoza.” Textual Practice, 33:5, 771–85.

— (2020) Spinoza, the Epicurean: Authority and Utility in Materialism. Edinburgh: Edinburgh University Press.

This essay has been peer-reviewed by “Frictionless Sovereignty” special issue editor (Ryan Bishop), and the b2o: An Online Journal editorial board.

The question of sovereignty is poorly formulated if we confuse it with the autonomous decision of an individual (Bataille 1989: 311)

On 2^nd August 2007, a Russian submersible mission (MIR-1, launched from the Akademik Federov) planted a flag at the estimated North Pole, on the Arctic seabed. Part of the activities of International Polar Year, its purpose was the exploration of the Russian continental shelf, discovering how much sea or seabed Russia could claim as its own.[1] Since then, popular, technical and academic writings have mused on the strange situation of sovereignty in the polar regions. Ownership of territory in either region is heavily contested, as both sea and land ice melts, freeing up the dream of access to colossal mineral reserves. But as I hope to demonstrate below, sovereignty couched in terms of possession, performative power and control will not work in the Antarctic. I will restate the seemingly obvious exceptionality of that continent’s situation, in order to supersede the apparently postcolonial critique posited by Klaus Dodds in particular, wherein there is nothing exceptional in the case of Antarctica. I will argue that our models of sovereignty, as applied to the polar regions, but especially in the Antarctic, fall dramatically short when they do not recognize the exceptional, or should I say, exemplary, nature of sovereignty that pertains there. I turn to Carl Schmitt’s anti-liberal presentation of sovereignty, thereby moving beyond the simplistic attribution of sovereignty to ownership and control, whether under a ‘sovereign’ parliament, people or body of law. Like Derrida, in his later writings on the borders of law, I presume a paradoxically rethought Rousseauian reading of Schmitt that accepts the latter’s proto-deconstruction of sovereignty and its legal basis and function, whilst rejecting the implication that therefore we should have a strong executive leader who embodies the sovereign decision-making capacity. This rejection is not just based on ideological rejection of Schmitt’s views, but also on a refusal of his retention of decisionist faith in subjective priority over a subsidiary object world. Ultimately, I believe that in traversing Schmitt’s thinking about the “nomos”, or legal terrain, of territory, we are brought to a position where we can grasp the strangeness of the Antarctic, without suffering any Romanticist delusions about its inherent hostility to humanity even as it stands as a paragon of the world ecology.

Sovereignty in the Antarctic is a dynamic process that addresses the fundament (and absence thereof) of sovereignty. Beyond banal difference intuited through the apparent a-biotic nature of that continent lies a deeper difference that emerges after reflection on precisely how the Antarctic resembles (or not) other polities. To this end, I consider Jessica O’Reilly’s model of the “technocratic Antarctic”, which identifies the ways in which the Antarctic does function politically, rather than imagining it as a place either so special it cannot be considered in any normative way, or as so normal it cannot be thought of in its specificity. I reintroduce the thought of Georges Bataille on sovereignty as loss, as willed absence, along with Kathryn Yussof on extractivism and excessive anti-geology.

In the end, what is ‘polar’ about polar sovereignty will be seen to be not about physical poles, but about the fluctuating quality of that sovereignty, as an example of the heterogeneous, “characterized by the strong polarization of its elements” (Bataille 2018: 31). Where Bataille intends this idea to apply to the opposition of pure and impure, high and low, I extend the idea to the double exceptionality of the Antarctic. The first of these (pure, high) is the basic legal distinction between it and the rest of the global legal system, the second (impure and low) is the resistance the continent has to that system, as it is a refusal, a renunciation of sovereignty that Bataille will identify as true sovereignty. He intended the method of heterology to extend beyond the realm of sacred objects, actions and situations, imagining a world of oppositional yet non-dialectical ‘outsides’ to the normatively formed world. These trade against one another as well as against the standard ‘inside’ of rationalistically conceived, liberal laws, morals, structure and habits. So in this instance, the norm is a legally sovereign power with whatever rights accrue to it, legitimated by international law norms. The non-norm is the absent sovereignty of the Antarctic, with one ‘pole’ the consensual agreement not to own the continent. The other ‘pole’ is the deconstructed sovereignty that actually persists in the distorted, experimental yet also excessive or “heterogeneous processes” (Bataille 1985: 156) of sovereignty that play out in the Antarctic.

When MIR-1 landed its flag, it was playing out a standard move in the ongoing spatial-legal conception of turning bare space into territory, i.e. bringing it under control. Several existing States claim rights over portions of the undersea Arctic, based on already-inhabited proximate land. All claimants have inhabitants that live inside the Arctic circle, and so this is not a colonialism based on a new conquest over indigenous peoples (leaving aside debates about existing occupation, ownership and indigeneity). It is a form of primordial colonialism, spatial control, but one that post-colonialism finds hard to grasp, not least because we could imagine it to be post-colonial colonialization. Schmitt, alternatively, identifies the drawing of lines, the process of enclosure, as itself an act, a sovereign act of power. This does not exhaust his ideas on the matter, particularly where the law of the sea is concerned, but actually the Arctic is only witnessing one level of sovereignty discussion, the most basic (or wrong, as Rousseau and Schmitt would concur), which is about ownership of already-existing, already-defined spaces. Nothing novel or unusual is playing out in the Arctic: while five states have coastal rights that extend to 200 miles from the end of the continental shelf, the rest is under the jurisdiction of the UN convention on the law of the sea.[2] There is no sovereignty hole, in legal terms, over or under the Arctic.

The Antarctic is very different, firstly because it has no indigenous human population. Any colonization we could refer to must refer us back to the colonization that is all human occupation of territory, as opposed to the age of world-domination, extractionism and slavery propagated by leading European powers between 1492 and whenever (or if) we deem this period to have ended. The continent was unattainable, except to the imagination, to the extent that the first documented sightings were in the late 18^th century, incidental discoveries made by representatives of leading colonial powers such as Britain and France. In the early 19^th century, sightings of and landings on the core continent were made by Russian and American ships, as well as further voyages made by European nations. But the lack of obvious colonial reward meant that there was a long gap until renewed attention in the late 19^th century led to a scramble to establish territorial control through exploration. Once again, a long gap ensued after the 1910s, with some interest in the course of World War Two, and the intervening period notable mostly for Richard E. Byrd’s overflying expeditions. It was only the International Geophysical Year of 1957-58 that sparked nations’ interests in controlling the spaces of the Antarctic. The Soviet Union and the USA were interested in ownership but had no legal claim through either discovery or occupation, so pioneered the method of depositing bases into territory that could be claimed later. Their vested interest was also part of how the Antarctic would end up as a landmass outside of normal banal sovereign claims, a status confirmed in the 1959 Antarctic Treaty.

The Antarctic has never been fully integrated into the global régime of existing power hierarchies and nation-based histories, even if it is fully caught up in a more Foucauldian power network based on intersections between power and knowledge, and power as a system of actions, laws, discourses, technical procedures and protocols. Even today it is sparsely inhabited–there is no indigenous population as such, but a transient population of between 1000 and 4000 mostly scientists, with 25000 or so tourists visiting every year. But in terms of national presence, it is more like a freeport, a department store full of concessions, or a world science fair. Thirty countries have some sort of research base there, 68 in total (see O’Reilly 2017: 67), and not only in their ‘own’ zones.

Territorial claims have been suspended since the creation of the Antarctic Treaty (which came into force in 1961), the founding document for the Antarctic Treaty System. This ‘system’ ties together a group of treaties that have accumulated over time, and allows space for further development. The Antarctic Treaty System (ATS) is the model of governance for the continent, and is trans-, supra- and non-national in nature, with 53 countries signed up to the System.[3] This system suspends all territorial claims, in favor of a neutralized sovereign space (not a space of pooled sovereignty).[4] There are extensions of rules and subsequent protocols, but the Antarctic is designated under the original treaty, and ensuing treaty system, as a neutral, demilitarized non-nuclear zone.[5] Countries with territorial claims have made sure to place bases that are permanent within the relevant zones, as have many others. The discourse on Antarctica is rife with discussion about either land claims or about mineral wealth, particularly offshore (the ATS extends ‘northward’ to 60% south and controls exploitation of wildlife too).[6]

In the far south, there seems to be an almost utopian model of future environment-based governance. Alternatively, some argue, what we see in the Antarctic is only a mock-up of post-sovereign co-existence and instead it is a zone of neocolonial, retrocolonial and postcolonial tactics. Klaus Dodds and Mark Nuttall refer to “polar orientalism” (2016: 145), even if they also question claims that there is a current or new “scramble” for the Antarctic. Furthermore, far from being outside of the rest of the world, the Antarctic does have a legal régime, and cannot be said to be autonomous, separate from the world.[7] All of the research stations are supplied and populated from elsewhere. The culture of the Antarctic is global before the dwellers arrive, while they are there and after (O’Reilly 2017: 174). In addition to the treaty, the dwellers in bases are subject to control of their actions by their ‘own’ government, while the work that is the reason for inhabiting the continent is networked globally. Both polar regions though, are thought of in very standard terms of sovereignty, as opposed to a more Schmittian way of thinking the exception, and sovereignty as the capacity to exert power based on the decision of exemplarity. Wygene Chong, for example, observes that sovereignty is “the ability of a state to exercise its supreme authority over territory” (Chong 2017: 436); Ruth Davis regards national sovereign rights and claims as being protected, if not ratified (Davis 2014: 289).

So while sovereign rights are seen as contested, polar discourse reverts continually to national territorial claims in a way that barely captures the nature of sovereignty in the Antarctic. Schmitt’s idea that sovereignty is the power to decide whether an exceptional situation prevails (such as war, famine, ecological catastrophe, states of emergency in general) underpins every moment that the exception does not prevail, where the negative decision is made that there is no exception, which is how it is a “general concept in the theory of the state, and not merely […] a construct applied to any emergency decree or state of siege” (Schmitt 2005: 5). Giorgio Agamben proposes a more political and military way in which the exception becomes the norm in the form of “the camp” and the biopolitical regime of control in place in contemporary global society (see Agamben, 1998, 2005). Current discussion (with the key exception of Kathryn Yussof) expends considerable effort to bring polar regions into the norms of global culture and legality, and the legal exceptionality identified by Schmitt as the key to sovereignty absents itself. I would argue that instead of incorporating the Antarctic into measurable and discursively safe politics, the strangeness of its model, like Derrida’s rogue state, exemplifies exceptionality as a global model of sovereignty (Derrida 2005). The fact that exceptionality is not exclusively benign is also a means of tempering any over-utopian enthusiasm for the Antarctic as model of future progressive socio-legal structure.

Dodds and Nuttall, as longstanding social critics of Antarctic policy and politics, do not wish to acknowledge the specificity of either polar region:

For those who wrote on polar geopolitics in the past, the Arctic and Antarctic were often positioned as ‘exceptional spaces’, exceptional in their size, location, remoteness and even their connectivity to wider global, political, legal and economic networks and practices. (Dodds and Nuttall 2016: 24)

They insist that the Arctic is “less an isolated frontier region [but] a transnational and neo-liberalized space connected to global flaws, risks and networks” (2016: 28), and that both poles are equally connected and networked, fully integrated into a global polity. That’s probably true, but their inclination to undo the exceptionality of Antarctica raises more questions. At one level, they are perfectly right, there is nothing so special about the polar regions that they can be thought of as exceptional. Sovereignty debates, they say, are about spurious claims to ownership that are complicit with exploitative agendas. As Bataille would say, such a supposedly critical view merely corroborates the modern bourgeois belief in sovereignty as possession, as “the world of accumulation is the world rid of the values of traditional sovereignty, in which things have ‘value’” (Bataille 1989: 423). Yussof extends this critique of the limits of simply calling out exploitation in terms of redistribution when such does not include a deep critique of extractive, slave-based economic development that preceded Western capitalism. Such extractivism aligns mineral discovery and removal with the use and transport of enslaved people:

Both these modes of extracting value–as property and as properties— generate surplus. It is the grammar of geology–the inhuman–that establishes the stability of the object of property for extraction. The process of geologic materialization in the making of matter as value is transferred onto subjects and transmutes those subjects through a material and color economy that is organized as ontologically different from the human (who is accorded agency in the pursuit of rights, freedom and property). (Yusoff 2018: 71)

While Yussof has addressed the Antarctic elsewhere (see for example Yusoff 2009), her critique of extractivism highlights the belief that the governance and power dynamics can be part of global power systems and networks without for all that being ‘just the same’ as every other space or place. Imposing a model of limited sovereignty based on good or bad possession will not assist either understanding or critique.

Jessica O’Reilly completely dismantles the idea that the Antarctic is not exceptional–and her case is not made through the bare natural facts or an idealism about the Antarctic Treaty System, but through an acknowledgement that the Antarctic’s specificity arises through the convergence of science, bureaucracy and nature, meaning that the continent is governed technocratically, and therefore in clearly defined ways that are substantially and almost ontologically different to anywhere else, notwithstanding the Foucauldian perspective she herself raises. Perhaps with Dodds and Nuttall’s worrying statement in mind about what they wish to call “narratives of ecological catastrophe” (Dodds and Nuttall 2016: 56), she writes that “the imagined environment is not just a social construction, it is also nature impacted by human actions and decisions” (O’Reilly 2017: 17). This physical difference only takes on meaning when processed into technocracy, acquiring its status as bedrock after its legal processing. The meshed exceptionality of how the Antarctic is run opens up pockets of Schmittian sovereignty. O’Reilly writes that “if states pay close attention to the procedural, bureaucratic activities involved in the approval process they can almost always do what they wish in the Antarctic with little if any, intervention” (2017: 129). The only possible intervention is that of observers, who can monitor activities if they see fit, and then report to the Committee that oversees the treaty system. If there is international idealism about the model of governance in Antarctica, it is not about a misreading of state vested interests acting under cover of a truce, it is to do with a strong belief in the value of competence, skills, discipline and the power of co-operative technocracy:

While technocratic management elsewhere might feel like a nerdy burden, a leftover of 1950s efficiency politics, in Antarctica, technocracy is part of a utopian environmental future. Among Antarctic people, the broad consensus is that governance informed by scientific knowledge has the potential to improve human and nonhuman lives and homes. (O’Reilly 2017: 171).

Not only is the Antarctic a legal pioneer in terms of the future permanent exceptionality of sovereignty, it is also a precursor of the tech-libertarianism of social media and software services. What could be more ideal for a soft-tech-engineered future than a place with well-meaning skill as surrogate for democracy?

O’Reilly’s model is far from blind to the presence of executive power, nor to its strangeness, but of course it does not near the hyperbolic and almost actor-less execution of power that underlies Schmitt’s Land and Sea (1942) and The Nomos of the Earth (1950). Both of these texts physicalize the constructive power of spaces, borders and the law in a process of total delineation. For Schmitt, power becomes global through the assumption of a global space that is itself divided. Without the line (most specifically of the division of world between Spain and Portugal in 1493), there is no whole. In Land and Sea, Schmitt argues that with that line, through the Atlantic, Spain was given the Western part of the world, Portugal the East, and this “papal line of partition from 1493 stands at the beginning of the battle for the new fundamental order, for the new nomos of the earth” (Schmitt 2015: loc 1432).

Lines construe the spaces between, the space without and space as jurisdiction. One fundamental line is that separating the domain of the line, which is the land, and the non-domain outside of lines, which is the sea. This latter is ostensibly free of lines because it is subject to protocols and transgressions beyond Earth-bound and Earth–binding power: “the firm land consists of its division into state dominions; the high sea is free, i.e., state-free and subject to the authority of no state dominion” (Schmitt 2015: loc 1514). Schmitt’s model of sovereignty means that this is not a simple distinction, but one deeply bound up with English maritime force, particularly through the extra-legal activity of piracy in the 16^th century. What looks like absence of law is actually a domain of prospective sovereign action, properly outside of sovereign territories.

Schmitt attributes a deep, ontological effect to newly discovered or revealed zones of the planet, “new lands and seas” change the human spatial experience, “not only the outermost human horizon, but even the structure of the concept of space itself is altered” (2015: loc 1249):

There is more to a spatial revolution than landing in a heretofore unknown place. A spatial revolution involves a change in the concepts of space encompassing all the levels and domains of human existence. (2015: loc 1355)

Although Schmitt is not referring to the Antarctic, this notion of a spatio-legally avant-garde location remains, in what is a still-new space, a non-territory, the governance of which continues to subvert international law. The key to these changes that Schmitt sees in discovery is not the opening of a horizon but the closing of zones inside lines, the enclosure itself the expression of an almost autonomous sovereignty, such that “world history is a history of land-appropriations” (2015: loc 1398). Land is in fact appropriation, the only way it can become the ground for being understood as the location upon which it occurs. Land-appropriation precedes all other legal orders as the land contains essential value, that is brought out through human labor, and then further framed by enclosure:

The earth is bound by law in three ways. She contains law within herself, as a reward of labor; she manifests law above herself, as fixed boundaries; and she sustains law above herself, as a public sign of order. Law is bound to the earth and related to the earth. (Schmitt 2003: 42)

It is as if law is the first and primary growth, once humans are near (are there humans before they begin to frame the earth with their labor?). Appropriation seems to become the originary condition for both human and earth to exist, with one the appropriator, the other the unwilling/unwitting supplier. The legal order of social existence comes into being before all other forms, an ur-form that has always already extracted itself from deep within the earth. The law is the order of nomos, as “nomos is the measure by which the land in a particular order is divided and situated” (Schmitt 2003: 70). This excessive and doubtless unwitting re-statement of Rousseau’s Discourse on Inequality establishes power as always precedent to power, an authority that allows authority to act. It is possible that the only sovereignty is the act of dividing that brings the potential for sovereignty into being, outside of any legitimacy, founding an order which can reflect on itself as having granted authority for itself to have come into being. This, at least, is what Derrida sees as the para-legitimacy of the moment of law’s inception (Derrida 1992: 14 and passim) and as that which underpins claims made by dominant global powers about curtailing the activities of rogue states, thereby acting as rogues themselves (Derrida 2005: 96).

While the sea is outside sovereignty, piracy and imperialism act in fully sovereign disdain for all that lies within demarcated lands. Land is also outside of sovereignty, until European powers discover it. Only Europe possesses lines and line-making capacity (the world is under a “Eurocentric model of international law” observes Schmitt [2003: 39]), and everywhere is as legally empty as Antarctica was: it doesn’t matter if anyone else is already there, the capacity to acquire land or power is “properly” European, in variants of Anthony VI’s world-splitting and shaping decree of 1493—“the non-European soil of the rest of the earth in this global, but not yet completely Eurocentric spatial order was free, i.e. free to be occupied by European states” (2003: 142).  It is upon this act (as well as Spanish king Philip III’s 1605 order to religiously convert all of the southernmost continent) that Chile and Argentina base their Antarctic claims, as inheritors of Spanish territorial rights. In other words, they summon a colonial right (not neo-, but proto-), through a sovereign act of global violence made by a papal institution that no longer has that power, to an empire that no longer exists, via countries no longer subject to it, to what was then a properly undiscovered land, as opposed to a place that Christians were just waiting to discover through mass murder of any local populations. The lines between Spanish and Portuguese colonizations were just that, between themselves, “internal divisions between two land-appropriating Christian princes within the framework of one and the same spatial order” (Schmitt 2003: 92). The sea was the freedom of manoeuver between brethren colonizers, and non-European lands were effectively part of the sea until one or more European powers took a direct interest.

In fact the sea’s non-jurisdiction is like the exceptionality of the line-drawing, power-framing that is the shaping of land as territory (and like that of Fred Moten’s cut that establishes what is beyond the break, outside and radical, thereby enclosing that which it is not [Moten 2003: 6]). The sea is very much a location, or perhaps, vector, of sovereignty, albeit of sovereignty that exceeds land-based jurisdictional power. Polar regions are not only not outside of this discussion, but exemplify it–their exceptionality still not regularized into State-form, and yet hosts to sovereignty in multiple interlocked strata. Much that is in Schmitt’s texts seems prophetic, such as when he states that current uncertainty over ownership and access is not a type of vacuum: “that which is coming is not therefore only measurelessness or a nothingness hostile to nomos’” (Schmitt 2015: loc 1729). If there is a vacuum, a spread of the law of the sea, in some ways, then this is a constitutive vacuum, which once seen in light of Schmitt’s spatialization of sovereignty, is both odder and more exemplary than ever. The polar regions, the Antarctic in particular, are where land and sea literally and geosocially, as Yusoff has it (Yusoff 2017: 108), deconstruct the concept of sovereignty even as they assure its functionality (through pragmatic technocracy and sovereignty as constant, unclosed and speculative line-making). Yusoff agues that

stratification is a confrontation with the spatial arrangements of the social divisions of materiality and the claims to power that are enlarged by harnessing the geopower of the substratum, an arrangement of power that is both exceeded by and complicated by geologic elements. (2017: 105)

The strata are in play even as potential–perhaps particularly in our era, as potential, as resources require a deepening of extractionist economics. The polar regions are almost entirely subsumable as strata beneath the rest of world and national jurisdiction, and therefore, far from being out of play, are that which awaits incorporation into purportedly sovereign resource control. Despite the global and local scalings of stratification of sovereignty and sovereign process in and around the Antarctic, it is the mesh of those layers in a system of lines and, it could be said, contours, that politically define the stratification specific to the Antarctic. This also includes the absence, or the absenting of lines in willful de-sovereign-ing process.

As sea and land infiltrate one another in a legal and/or representational way, we should recall O’Reilly’s clear-sighted integration of the materiality of the Antarctic into sovereignty. The Antarctic, just as much as the Arctic, is actually (at least in human experiential terms), a combination of land and sea. The 2 km of ice “has been constituted by particular physical and temporal engagements” (Antonello 2017: 79) and will at some stage become sea with colossal impact for the rest of the world, and as it begins to do that, the law of the mercenary sea begins to hold–a holding that is precisely allowed in the withholding of ‘proper’ sovereignty claimed by a small group of States. The Antarctic has not been allowed to become land, despite the presence of lines as arbitrarily drawn as those that marked European divisions of Africa or the post-imperial middle East. This non- or extra-legitimate space is subject to further non-legitimate incursion because there is only the presence, not the force, of sovereign power in the Antarctic. Sovereignty deadens the continent even as it constructs it. This sovereignty is that of the line-drawing, not of the would-be occupying powers or even that of the techno-elite, and this is a sovereignty that is always already beyond borders, a sovereignty generated from within lines (i.e. by existing powers) but that exceeds. In fact, this can always be traced back to the moment that Rousseau defines as the consent to enclosure: “the first man who, having enclosed a piece of land, thought of saying ‘This is mine’ and found people simple enough to believe him, was the true founder of civil society” (Rousseau 1984: 109). This, then, is sovereignty that exceeds political control, as it is that which defines, permits and delineates this power. Whilst we are never outside of sovereignty, sovereignty is an outside that generates the ‘norm’, or normative functioning of law, power and politics, and the Antarctic in this instance is not exceptional but exemplary. In other words, the exception to the exceptionality of sovereignty that helps exemplify the exceptionality that is sovereignty.

This sovereign non-power is part of what Schmitt describes as sovereignty–for all the decisionist power that his model offers (in Political Theology), it also includes the “power” to capitulate and abdicate (Schmitt 2005: 10). For Paul W. Kahn, this power is itself exemplary (Kahn 2012: 59). All sovereign power is outside of legitimized, legalistic and formal law (Derrida 1992)–and so when there is no legitimized power, we could imagine that we are in a state of perfect if slightly unexpected Schmittian sovereignty. The geophysical politics of the Antarctic continent have set up capitulation that is loss without a loser or victor, a renunciation, as rogue sovereigntist Georges Bataille would put it when referring to Stalin’s Soviet Union (1989: 291-302, 313). Far from there being no sovereignty in the Antarctic, or there being a new model, the novelty lies in the way it expresses as its norm the excessive capacity that is sovereignty. For Bataille, sovereignty is precisely the residue or surplus of order, that which drops away from norms, and the Antarctic has become an extravagant site of sovereignty as experimental excess.

For Bataille, sovereignty is about loss–about seeking to attain traditional types of sovereignty where individual power and state power meet in one person (or the doubled bodies of the king), and then failing. Sovereignty is the reaching of a pinnacle in excessive behavior such that the individual is lost within that excess–and sovereignty “dissolves into NOTHING” (1989: 204). The relation of sovereign to non-sovereign, and to the rule, are consistent between Bataille and Schmitt, if not exactly the same. Where Schmitt has sovereignty as the thing that exceeds the rule, for Bataille, the rule brings value to what he calls “irregularity” (1989: 408). Similarly, where Schmitt has executive power as the power of the outside that defines the system, Bataille defines sovereignty (when writing in the 1930s) as heterogeneity.

Heterogeneity is that which lies outside homogeneous, normal, normative society. Beyond rules, it is a mode of action and process that is barely human, mostly not even human. It is not just what is outside, but what troubles the solidity of inside by being its ejected other: “The heterogeneous world includes everything resulting from unproductive expenditure” (Bataille 1985: 142), and so “compared to everyday life, heterogeneous existence can be represented as something other, as incommensurate” (Bataille 1985: 143). Heterogeneity can be both high and low, a parallel polarity (Bataille 1985: 144)–Schmitt’s dictatorial control exerted through the inward-moving force of sovereignty is high, the black mass, the festival, drunkenness, non-reproductive erotic activity are low. Circling us slowly back over the Antarctic, like the overflying Admiral Richard E. Byrd, dreaming of the hole into a hollow earth, Bataille’s heterogeneous sovereignty pinpoints a sovereignty that can cross between human actors and the spaces they bring into geosocial being (see Yusoff 2017: 109).[8] The presence of humans brings an exceptionality that is not about emptiness, but about the very refusal of detail (on the surface at least) that humans can pick out as meaning–a space populated instead by regulatory detail. The very system of rules in position in the Antarctic is part of a meshed sovereignty, that in turn allows a Schmittian sovereignty within it (free movement and site-establishing of actors within all zones), whilst holding distantly at bay the restricted form of sovereignty that is taken to exist in the form of spatial control, mastery over a passive object and against the acts or desires of other autonomous self-identical actors.

But the Antarctic is not just the surface, it is also hidden lakes, sediments, and ultimately a continent of actual land: the nomos is immured within and beneath the treatyspace, and at the same time, the sea lies ready not just as ice, but deep within it. And within that, lies a new biota ready to emerge. All, or at least some, of this will rise as the accursed [geo] share, and is being explored and hypothesized all the time, almost as if it were fictional.[9] This potential explosion, or currently, repressed excess, that lies beneath (or in the abjection of the most barren zone on the exposed planet, the Dry Valleys), signals Bataille’s interest in the cosmic principle of explosive destruction that powers everything else, that allows anything else to be. He writes that “if excess cannot be completely absorbed in its growth, it must necessarily be lost without profit, it must be spent, willing or not, gloriously or catastrophically” (Bataille 1988: 21). Within the comforting whole of the ice sheets lies a dirtier, unknown part that is one of the lures for restricted sovereignty in the form of resource ownership or access. As it is, it remains a Bataillean excess, excluded from the world of utility. Its “base matter is external and foreign to ideal human aspirations, and it refuses to allow itself to be reduced to the great ontological machines resulting from those aspirations” (“Base Materialism and Gnosticism”, Bataille 1985: 51). It maps onto the low heterogeneity of excessive human behavior, only more so–fully apathetic, a world that is actually beneath the current surface, it is a mockery of regulation of the world above, whether constitutional-military, or treaty-based. Unlike Bataille’s sovereign self-losing individual or society, or Schmitt’s system-overcoming Leader, the Antarctic does not permit any type of sovereignty other than that which exceeds the human without the human trying. This is not from a Romantic or legalist perspective on the difficulty of terrain or temperature, but has always already arisen as the result of human interaction with the geologistic [hidden] excess of the solid Antarctic through its thickly membraneous liquid surface. As Schmitt is aware in both Land and Sea and The Nomos of the Earth, the distinction between land and sea laws is a classic nested opposition where the difference between them connects the two opposites such that they undermine and inform each other (Balkin 1990: 3). But with Bataille, we can see that the existing actual law of the sea, and the technocracy of the Antarctic (acting as a limp prosthesis of state sovereignty), actually diminish each other as they merge. Each sovereign domain deflates, drops, but never far enough. Never low enough. Finally, we cannot actually grasp the sovereignty that has come into being even though it lies within a domain that is almost ultra-rationalistic and crypto-legal. And the sovereignty that works there, that has become the nothingness Schmitt said it could not be, is precisely what then informs the shape and practice of sovereignty everywhere else, the excess from which the restricted order emerges.

“The brain is the parody of the equator” (“Solar Anus”, Bataille 1985: 5).

Paul Hegarty is professor of French and Francophone Studies at the University of Nottingham, and co-lead of their Creative and Digital research cluster. He has published widely on cultural theory, with an emphasis on sound and music. He is currently working on the soundscapes of distributed French cultures and his latest book on music, Annihilating Noise, is forthcoming with Bloomsbury.

References

Agamben, Giorgio (1998) Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen. Stanford: Stanford University Press.

— (2005 [2003]) State of Exception, trans. Kevin Atell. Chicago: University of Chicago Press.

Antonello, Alessandro (2017) “Engaging and Narrating the Antarctic Ice Sheet.” Environmental History 22:1, 77-100.

Balkin, J. M. (1990) “Nested Oppositions.” Yale Law Journal 99:7, 1669-1705.

Bataille, Georges (1985) Visions of Excess: Selected Writings 1927-1939, ed. Allan Stoekl. Minneapolis: University of Minnesota Press.

— (1988 [1949) The Accursed Share, trans. Robert Hurley. New York: Zone.

— (1989) The Accursed Share vols II and III, trans. Robert Hurley. New York: Zone.

— (2018) “Definition of Heterology.” Theory, Culture and Society, special issue: Bataille and Heterology, eds. Marina Galletti and Roy Boyne. 35: 4-5, 29-40.

Chong, Wygene (2017) “Thawing the Ice: A Solution to Contemporary Antarctic Sovereignty.” Polar Record. 53:4, 436-47.

Davis, Ruth (2014) “The Durability of the “Antarctic model” and Southern Ocean Governance,” in Tim Stephens and David L. VanderZwaag (eds.)  Polar Oceans Governance in an Era of Environmental Change. Cheltenham: Edward Elgar, pp. 287-307.

Derrida, Jacques (1992) “The Force of Law: The ‘Mystical Foundation of Authority’,” in Drucilla Cornell, Michel Rosenfeld and David Gray Carlson (eds.) Deconstruction and the Possibility of Justice. New York and London: Routledge, pp. 3-67.

—. (2005 [2003]) Rogues: Two Essays on Reason, trans. Pascale Anne Brault and Michael Naas. Stanford: Stanford University Press.

Dodds, Klaus and Mark Nuttall (2016) The Scramble for the Poles. Cambridge and Malden, MA: Polity.

Kahn, Paul W. (2012) Political Theology: Four New Chapters on The Concept of Sovereignty. New York: Columbia University Press.

Moten, Fred (2003) In The Break: The Aesthetics of the Black Radical Tradition. Minneapolis: University of Minnesota Press.

O’Reilly, Jessica (2017) The Technocratic Antarctic: An Ethnography of Scientific Expertise and Environmental Governance. New York: Cornell University Press.

Rousseau, Jean-Jacques (1984 [1755]) A Discourse on Inequality, trans. Maurice Cranston. London: Penguin.

Schmitt, Carl (2005 [1922]) Political Theology: Four Chapters on The Concept of Sovereignty, trans. George Schwab. Chicago: University of Chicago Press.

— (2003 [1950]). The Nomos of the Earth, trans. G. L. Ulmen. New York: Telos.

— (2015 [1942]) Land and Sea: A World-Historical Meditation, trans. Samuel Garrett Zeitlin. New York: Telos. Kindle edition.

Yusoff, Kathryn (2009) “Excess, Catastrophe, and Climate Change.” Environment and Planning D: Society and Space. 27, 1010-29.

— (2017) “Geosocial Strata”. Theory Culture Society, special edition, Geosocial Formations and the Anthropocene. 34:2-3, 105-27.

— (2018) Nine Billion Black Anthropocenes or None. Minneapolis: University of Minnesota Press.

[1] This maritime territorial zone is known as the Exclusive Economic Zone, which is the area of sea adjacent to a recognized coastline, as defined by the United Nations Convention on the Law of the Sea (UNCLOS).

[2] These are Russia, Denmark (via Greenland), Canada, USA and Norway.

[3] For more on the current and historical parameters and practice of the ATS, see the website of the Scientific Committee for Antarctic Research (SCAR), at https://www.scar.org/policy/antarctic-treaty-system/. Accessed 29 January 2020.

[4] The original claimants to Antarctic territory are, Norway, Britain, New Zealand, Australia, France, Argentine, Chile. Debates about ‘postcolonial’ or decolonizing readings of the ‘poles’ are hampered by the presence of ‘postcolonial’ régimes’ assertions of land rights. New forms of territorial claim have been developed – India grounds its claims on the transcontinental connection in place in Gondwanaland (550 million years BCE to 180 million years BCE) in a geopolitical scaling of time and land (see O’Reilly 2017: 122-24, detailing India’s contribution to the 2006 Antarctic Treaty Consultative Meeting). Despite a push to open up mineral extraction against the hegemonic ATS, India’s official position reflects full compliance with the Treaty, as evidenced in this 2020 bill: http://www.ncaor.gov.in/files/Indian%20Antarctic%20Bill%20/Indian%20Antarctic%20Bill%2015Jan2020.pdf. Accessed 2 February 2020.

[5] In fact, it specifies that no nuclear explosions are allowed to take place there. A 1998 Protocol on Environmental Protection clarifies that no mineral extraction is allowed (see the protocol here, on the ATS site, https://www.ats.aq/e/protocol.html. Accessed 29 January 2020. In the meantime, extensive mineral research, in parallel with extractive research, is in practice underway, based on the ‘neutral’ scientific model of exploring under the ice. The protocol is up for review in 2048.

[6] Technically, the manoeuvering by the countries that have some sort of base in the Antarctic is irrelevant, as the ATS explicitly rules out the acquisition of territorial rights in the period of its existence.

[7] The inhabitation of the continent is in fact generated as global flow as opposed to being the result of a steady-state population.

[8] Byrd was a pioneering aviation explorer of the Antarctic from 1928 onward. In later life, he seems to have come to believe that, in the course of his circumpolar navigations, he saw the way into what was revealed to be a hollow earth.

[9] Bataille writes that “knowledge is never sovereign” (1989: 202). Also see Yussof, 2009. Yussof correctly points out the value of using Bataille’s ideas of unknowing, which is a part of his model of sovereignty, to grasp the potential extent of change from climate crisis and deviation from a technoscientific imaginary of control.

This essay has been peer-reviewed by “Frictionless Sovereignty” special issue editor (Ryan Bishop), and the b2o: An Online Journal editorial board.

“… the West has never been further from being able to live a true humanism – a humanism made to the measure of the world.” (Césaire 1955: 73)

This article is the abstracted result of my having witnessed the racialized infrastructures of European bordering practices in an apparent frictionless sovereign territory: the Schengen area. Embodying whiteness and holding European Union passport privilege in this context and situation, I was allowed to witness these events without any real danger to my person. I am hoping to remain cautious, however, of how my privileged position might be doubled in writing. An academic reflection could become a parasitical tool and an appropriative parsing of a traumatic experience that does not belong to me. I will therefore not engage in detailing the experience or what it has produced for those involved. I will, however, briefly recount some of the acts of policing I witnessed and how they constituted borders for some bodies where no borders exist for others.[1]

In the middle of the night in May 2019, Austrian police took a woman and her two children off a train, leaving them in the train station of Villach, 20 kilometers before the border with Italy. The Austrian train inspectors and the police officers took this action on valid ticket holders and refused them re-entry into Italy on the basis of them not having European passports. The family was, however, holding valid travel documents issued by Italy, which should have granted them access across the Schengen space of Austria (under the 1951 Refugee Convention) and moreover a return to the issuing country. Instead, after being taken off the train, they were “advised” to seek the local Austrian asylum seekers’ centre, risking refusal and possibly detention. An attempt to board the next train to Italy many hours later was met with direct obstruction by two Italian Carabinieri (dispatched to this site in Austria) and two local Austrian police officers, alongside train employees. As holders of valid travel documents, the family was able to eventually return to Italy by bus (however, not on the main Austrian lines but an adjacent low-cost one).

My aim in this article, starting from the events I have just recounted, is to reflect on the current Schengen area at the peak of anti-immigration law-making, and on the racial infrastructure underpinning Schengen territories and their governance. I argue that the existence and application of Schengen Border Codes articulates states of exception in the already racialized assemblages of European regulating and policing, making visible the friction in the promises of frictionless sovereignty of the Schengen Area and turning (some) bodies into borders. I do this work with the support of brilliant black scholars who have taken up similar questions, worked extensively on them and have produced critical responses to excessively cited white European scholarship in this area. Specifically, I will approach these issues through Alexander Weheliye’s deployment of habeas viscus—having flesh–and his emphasis on black feminist theory’s contribution to the revision of conceptions of the human that stem from “the world of Man” (via Sylvia Wynter) and liberal modern humanism. By Man, Weheliye means the configuration of the heteromasculine, white, propertied, liberal subject produced from a type of surplus of the human, through exploitation which renders anyone outside of this formation as “exploitable nonhumans, literal legal no-bodies” (2014a: 135). I aim to show how Europe is bound to Man’s legal apparatus and how Man’s juridical machine articulates itself in embodied bordering practices, even in non-border sites and in areas where movement should be frictionless, given the Schengen Agreement.

These instances of border policing have often been approached in academic reflections via the work of Michel Foucault and Giorgio Agamben. About these writers, who are all too frequently cited in work about biopolitics and population control, as well as about bare life, law and power respectively, Weheliye states that their disavowal from engagement with black studies and the black struggles of their times is what makes their concepts “transportable to a variety of spatio-temporal contexts” (2014a: 6). Their lack of consideration of an explicitly racialized viewpoint, available and expressed by various authors like Frantz Fanon, Nahum Chandler, or Sylvia Wynter, gives Foucault and Agamben’s concepts a “veneer of universalism”. In the case of Foucault in particular, Weheliye brings to our attention that he chose not to engage with the knowledge on race and power produced by the Black Panther Party through its struggle in the prison abolition movement, and did not seriously respond to the work of U.S. black feminist activists like Angela Davis. This cannot be anything but a stubborn omission, given Foucault’s involvement with the prison abolition movement in France and in Algiers (Weheliye, 2014a: 62-63). Other authors have read this and other Foucauldian omissions as non-engagement with efforts towards dismantling the white, male epistemic subject (Rodríguez). In the case of Agamben, Weheliye engages in a thorough critique, detailing how the former’s constant universalizing of the state of exception and seeing “bare life and the state of exception as exclusively legal categories” (Weheliye: 83) undermines the possibility of a situated, embodied conception of the flesh. The point regarding both these authors remains plainly that “their major theoretical formulations were developed often in distinction or without recourse to the long histories of globalised racial power” as Dhanveer Singh Brar sharply notes in a review of Weheliye’s book (Brar 2014: 145).

In contrast, for Weheliye, habeas viscus posits “one modality of imagining the relational ontological totality of the human” (Weheliye: 4) in a given spatiotemporal context, a situated configuration that manifests in a determinate present, not a messianic tomorrow. I follow this Weheliyan route rather than the abundant Agambenian and Foucauldian interpretations produced in studies on anti-immigration law-making in Europe, as it produces a much more grounded position on what having flesh and having a body means as perpetual exception in the always already racialized assemblages of legal frameworks and policing powers, applied in this case to spaces of transit within the Schengen territories.

Furthermore, I will centre the discussion on how these racialized assemblages open up, once more, questions of being human. Weheliye critiques the notion of the human which emerged with white colonial thought, extends to the continued omissions and universalising which happens in French theory, and continues to white feminist critical thought, such as the influential work of Judith Butler in gender studies, violence, and law. He points out that these theories, like most of post-1960s critical thought do not engage seriously and attentively with the work of contemporaneous black authors, such as Aimé Césaire, who cautioned about the double danger of including black subjects in the universalising category of Man or their relegation to the particulars of ethnography, something that writers like Hortense Spillers, Sylvia Wynter and Saidiya Hartman expand upon and continue to explore in readings of documents and histories of black lived experience. Weheliye also calls forth some of the theoretical propositions of new materialism and certain posthumanist incarnations for comparatively summoning chattel slavery and black experience of that historical period to set up legal structures for animal rights. In the cases where the engagement is not simply superficial or tokenistic, Weheliye states, the question of racialization in relation to the notion of the human is another form in which “black subjects […] must bear the burden of representing the final frontier of speciesism” (2014a: 11).

On the specifics of how crossing lines and making frontiers and comparative processes meet, he continues:

Comparativity frequently serves as a shibboleth that allows minoritized groups to gain recognition (and privileges, rights etc.) from hegemonic powers (through the law, for instance) who, as a general rule, only grant a certain number of exceptions access to the spheres of full humanity, sentience, citizenship, and so on. (Weheliye 2014a: 13)

Thus, following this call against a larger “grammar of comparison”, which brings with it a jargon of tabulation, measuring and calculability of black suffering, I will focus on the ways in which current European Union immigration law and its promises of frictionless sovereignty in fact open up the racialized foundations of European law-making and the frictions made visible by the passing of bodies over borders. The roots of anti-black racism in legal structures and the ways in which academic knowledge has made anti-blackness into a universal thought currency is what allows for the questions Weheliye raises to be asked of the European context. The bodies are the borders, seeking not exceptional recognition as human, but always already holding full expression and power to show the law as a racialized assemblage and the Schengen area in which this takes place as a prime instantiation of racialized infrastructure at work.

The Rule of Exception: A Question of the Human

“The universalization of exception disables thinking humanity creatively.” (Weheliye 2014a: 11)

European states ruled by right majority governments, with leaders like Italy’s former Deputy Prime Minister and Minister of the Interior Matteo Salvini, have set the precedent of threatening to cease the implementation of the Schengen Agreement, aiming to stop free movement across intra-Schengen borders (the so-called Salvini Decree abolished the issuing of residence permits on humanitarian reasons). Such suspension can only be done in exceptional cases, the conditions for which had not been met at the point of this request as far as the European Trade Union Confederation was concerned. Thus, the friction at the border between Schengen member states has been enacted through legally vague states of exception, not declared as such but in fact existing through the instantiation of added codes and emergency provisions, on the bodies of those crossing. Sites where bodies as borders are made visible in current racialized assemblages are often infrastructural nodes, like train stations and bus depots, as has been my first hand experience in the border town of Villach in Austria. Fully embedded in capitalist infrastructure, in circuits and flows, these spaces have become more and more spaces of incarceration and deportation, alongside other forms of violence and abuse. This is not a new situation across Europe of the last five years. As a temporary prison or camp, like in the case of Budapest’s Keleti, the train station has also acted as centre-piece for legitimizing an illusion of alignment for Hungary’s Prime Minister Viktor Orbán’s rule with his political agenda. Additionally, Brussels’s Central Station has been portrayed as the fear-mongering site at the “heart of Europe,” which right-wing media often uses as its visual trope for a refugee “take-over”.

Major European train stations are not the focus of this article but instead I will attend to a particular intra-Schengen border policing that currently happens between Austria and Italy, as witnessed in a rail station in the small town of Villach, one of the last Austrian stops before crossing into Northern Italy. Small nodes like this, under-observed by non—governmental organisations and activists due to reduced capacity are sites that can offer some understanding about how EU Law and its exceptions are made visible as racialized assemblages. Yet more importantly, what was made apparent in this case was not how the rule of exception functions on site but the “hieroglyphs of flesh” (Weheliye) onto which historical and current scales of colonialism and border crossing meet, as racialized assemblages and infrastructures. I expand upon these issues in section two.

In what follows, I will take up Alexander Weheliye’s critique of Agamben’s “state of exception” (1998) as temporally bound, to argue for the former’s proposition that “exception” is yet another instantiation of what he identifies as racialized populations “suspended in a perpetual state of emergency” (Weheliye: 2014a). Mirroring that thought, I claim in this article that my observation from witnessing policing of borders outside of border points themselves can be seen as an insight into how the entirety of the legal framework of the EU project can come under scrutiny. Such a route resists thinking this one instance as a state of exception, as the legal framework of Schengen law-making sets it up to be.

Countries like Italy and Austria, both holding their respective fascist pasts, currently right-wing party ruled[2] and sharing a border, have been making their own provisions, emergencies, exceptions and threats based on a particular set of codes added to the Schengen Agreement and EU Law and entitled the Schengen Border Codes.[3]

As the “Asylum Information Database”[1] (2018) built by the European Council on Refugees and Exiles (ECRE) states:

Notwithstanding that the issue of refugees’ access to the territory has traditionally been associated with the external borders of the EU (and therefore a handful of countries), the reintroduction of internal border controls in the Schengen area in the last three years has resulted in border control becoming a regular activity throughout the continent. The intra-Schengen dimension of the debate, and practice in countries such as France, Austria, Sweden or Germany, remain highly pertinent in the light of successive prolongations of border controls. (Mouzourakis, 2018: 6, emphasis added)

The reintroduction of internal borders was possible because of the Schengen Border Codes, an addendum to the Schengen Agreement and EU Law. The premise for creating the Border Codes is unsurprisingly in line with what the ECRE has observed about EU policy discourse and how it “places particular emphasis on combatting irregular migration” yet without defining exactly what irregular means. Nevertheless, “irregularity” is what is being monitored and controlled not only at the “level of access to the territory” (Schengen Area entry points, a handful of states as mentioned above) but also on an intra-territorial dimension. The frictionless promise and premise of the Schengen area can be suspended on the basis of the above-mentioned irregularity, but also on a similarly ill-defined “context of foreseeable events”. The latter often includes “terrorist threats”, as well as the equally poorly defined term of “ secondary movements”, or simply having a “land border” with a state that is a Schengen Area entry point (e.g. Austria justifies its current period of reintroduction of Border Codes based on “secondary movements, risk related terrorist and organized crime, situation at the external borders; land borders with Hungary and Slovenia”.[4]

The exceptionality of irregularity and the future threat cast as foreseeable event are the two bases onto which countries part of Schengen Agreement can introduce these internal borders:

At the moment, temporarily reintroduced internal border controls are maintained by France on all of its borders, Austria on the Hungarian and Slovenian land borders, Germany on its Austrian land border, Denmark on its German border, Sweden on nearly all of its borders, and Norway on all of its borders. With the exception of France, which motivates the reintroduction of border controls on the basis of terrorist threats, these countries maintain internal border controls on the ground of ‘security threats’ arising from ‘continuous secondary movements’ of migrants in Europe. Where internal border controls are reintroduced, the relevant provisions of the Schengen Border Codes relating to controls at the external borders apply mutatis mutandis to such border crossings, implying that persons not complying with entry conditions and not belonging to one of the groups listed in Article 6(5) must be issued a refusal of entry. (Mouzourakis, 2018: 8, emphasis added)

As seen from these documents and the wide application of Border Codes under various ambiguous and unspecific terms, what happens at intra-Schengen borders in the EU is a state of generalised exception. Giorgio Agamben takes the camps as prime sites of exception and argues that it “has become an important, if not constitutive, metaphor of modernity, an ideal space of governance, order, categorization and discipline that in multiple forms functions as the necessary but uncomfortable and sometimes disavowed support of the reproduction of ‘normal’ citizenship and community life” (Agamben 1998: 166–80). What Weheliye, against Agamben, proposes is that the exception is perpetual for racialized bodies and therefore the exception does not provide any valuable interest or lens for understanding the law or how it works. The camp or asylum only leave one with “bare life” and the law. Moreover, having a body before the law (habeas corpus) only makes one more trapped in the inconsistencies, exceptions and, as seen in the Schengen Border Codes, vaguely defined territory of its conditions. In the case of “bare life” the predominant lexicon becomes that of resistance and in that of habeas corpus, subjection only takes place through legal agency. According to Weheliye, both rely on a conception and assumption of “full, self-present and coherent subjects” (2014a: 1). Thus, the crux of the matter is not having a body or being before the law but a much larger question of how the law defines the category of the human. In other words, for Weheliye this is a question of habeas viscus (having flesh) versus habeas corpus (having body before the law) or Agamben’s “bare life”. One exists other than before the law, as fleshly body, as embodied. The mode of being before the law assumes either subsumption or resistance as two major lenses and lexicons to see and speak the human through. These have a “prerequisite comparative tabulation of suffering” (Weheliye 2014a: 1) meaning that bodies are either granted status of human or gain it. This happens most often on the basis of the law, biology and economy and the result is a parsing out of fully human, not-quite-human, non-human.

This over-reliance on the law and having a body before it (habeas corpus) is one side of the coin to the Agambean “bare life”, of barely having a constituting position that does not amount to much because it is confined to the space of the camp. What Weheliye points out is how this reasoning, which Agamben undertakes, produces a trap for the conceptual potential of “bare life” as it “falls victim to a legal dogmatism that equates humanity and personhood with a status bequeathed or revoked by juridical sovereignty in much the same way as human rights discourse and habeas corpus do” (2014a: 131). But most importantly, for the context and situation discussed in the case of states like Italy and Austria and the current rise in right-wing immigration agendas seen in continuity with their respective fascist pasts, the promise of revolution in historical-materialist terms as expressed by Marx, W.E.B. Du Bois or Benjamin is excised in Agamben and what is left is a “defanged legal messianism far removed from the traditions of the oppressed” (2014a: 132). Weheliye critiques Agamben for his omission and disregard of the Benjaminian postulates which come from historical materialism and the role of the oppressed in instating a “real state of exception”, that is an excavation into the past and a revolutionary mission carrying with it the pedagogies of the oppressed. Instead, Agamben asks for rupture through redemption and fulfilment of a past inheritance or task. In turn, Weheliye argues for habeas viscus as he rests on the multitude of work done by black feminist authors such as Hortense Spillers and Saidiya Hartman in the histories of chattel slavery and the Middle Passage, and the varied pedagogies of the vagrant and fugitive flesh, which have amounted from these authors’ insights. What their lessons build towards, for Weheliye, against the overly cited white philosophers heralding the logic of measurement, calculation and law is that “habeas viscus diverges from the discourses and institutions that yoke the flesh to political violence in the modus of deviance” (2014a: 130). The critique to the subsumption and resistance binary, which Weheliye underscores his project on maintains the revolutionary as a constant in the experiences, histories and pedagogies emerging from black suffering. He is nevertheless mindful not to turn deviance into the spectacular and instead aims towards fugitivity as ground for thinking the human.

EU Law as Racialized Assemblage

“The dream of governance in general, is to go beyond representation as a form of sovereignty.” (Harney and Moten 2013: 56)

How does racialized infrastructure work in the Schengen Area and in the generalized case of application of Border Codes for intra-Schengen movement? Recently, Brexit as the sovereign fiction of the U.K. has become a reality and it will introduce even further friction at border points such as Calais. Concomitantly, it has triggered other European Union nation states, like Italy, to ask for “exits”. Italy considering leaving the European Union is arguably part of a larger “desperate times require desperate measures” type of discourse, which started with threats of leaving the Schengen agreement (Schengen Visa Info, 2019). What Matteo Salvini was hoping to achieve with this threat was precisely to make sure that asylum seekers are not able to cross in-between borders inside of the Schengen area. His argument had been constructed around EU states not respecting entry laws, as an issue of intra-European state friction: “We are forced to do so, as the Italian law is not being respected by the Dutch government, in compliance with the European Union.” What he then suggested was that a direct consequence of this would be that refugees and asylum seekers can travel between Schengen states freely, which was already not true, because Italy and Austria had imposed irregular checks since Border Codes were introduced. The exceptionalism of the law was already there and it already ruled at the moment it was demanded, based on even further exceptionalism.

The suspension of the Schengen Agreement can only happen in exceptional circumstances. The General Secretary of the European Trade Union, Luca Visentini made note of one founding premise of law-making, that every rule has an exception but claimed that there is no exception in this case; therefore, Italy’s demands to exit the Agreement were denied. Visentini even went on to state that suspension is not a solution because “asylum seekers […] are already being checked by the border police.” The argument is de facto the following: the Schengen agreement is in place and respected, there is no exceptional situation, therefore Italy’s claim is unfounded and there are no grounds for leaving the agreement. At the same time the border checks (not a norm but not yet considered an exception either) are also in place, so there cannot be free movement of asylum seekers in between Schengen states. Firstly, it comes as a consequence that some legal body or authority had already been decided this at some point in the past but not made public; it is already a form of exception since the free movement and no border checks of EU-registered population was supposed to be guaranteed by the Schengen agreement itself. Furthermore, once asylum seekers are registered in EU databases, they should also be able to move freely inside of EU. However, the Secretary’s statement suggests that a “more is more” approach is taken as the border controls are “going out of [their] way to check ‘free’ movement at the border, asylum seekers are identified and denied entrance in certain countries.” Secondly, this already existing exception that is perpetual is projected and amplified into the future: “border police, […] are currently doing a great job and are, if anything, short on personnel and resources, as the Police trade unions have rightly pointed out.” The increase in police powers and in the collaborative practices of police across Schengen states has already been enabled by the Prüm convention and treaty of 2005, when Schengen state police authorities were given capabilities for “cross-border observations and chases have been made possible as well as the exchange of data (fingerprints, DNA, vehicles)” (Van der Woude 2020: 125).

The over-arching consequence of increased policing powers and the experience in Austria show that once out of Italy, where they have been registered, migrants travelling across Schengen borders are going to be treated as un-registered “uncontrolled migrants” once more, as if they had just entered Fortress Europe. Austrian border police collaborates with Italian border police and also with non-border police forces in both states to enforce this logic of risk to national security–they are behaving as if Salvini’s threat has already taken into action, as if the “fore-seeable event” has been indeed foreseen and thus is being acted upon.

With the Border Codes being in place at different times and for various reasons, it is unlikely that the wider population would have knowledge of which and what exception stands, which intra-Schengen border checks apply and when they are deemed legal or not. However, the abuses around intra-border checks have already been documented by ECRE since 2017, for each country. Here are the notes for Italy:

Beyond well-reported barriers to disembarkation in Italian ports in the course of 2018, access to the territory by land is equally problematic. Since the end of February 2017, readmission measures have been initiated against people arriving in Italy from Austria via train. Controls have reportedly been based on racial profiling, intercepting mostly Afghan and Pakistani nationals. Italian authorities apply more stringent controls on regional trains arriving from Austria. If people do not hold valid documentation to enter Italy, they are immediately directed back to the same train by which they arrived, to travel towards Innsbruck, Wörgl and Kufstein [detention centers]. People are not provided with written notifications or explanations of the reasons for their readmission. They are not allowed to seek asylum or to benefit from linguistic assistance and their individual circumstances are not examined.  (Mouzourakis 2018: 12, emphasis added)

The collaboration of these two states started before the exceptional provisions of the Border Codes applied and some of the observations from the reports now extend to those holding valid documents. It makes it not only confusing to those being checked but also a logical conundrum, as was the case in the policing instance I witnessed: holders of valid documents, having been issued asylum seeker papers in Italy, have exited the state to travel in a Schengen space of the neighboring Austrian territory. They are denied re-entry into Italy because they do not hold EU passports, and directed to re-start the asylum seeking process in Austria. Notwithstanding the complications and possible risk of detention camps or direct deportation, had they received asylum seeker papers from Austria, they would still be unable to return to Italy on the same grounds, namely that they do not hold EU passports but only travel permits, which again do grant them the right to pass by the 1951 Refugee Convention. It simply does not make sense and it also applies in reverse; the ECRE general report mentions for Austria:

A similar practice is applied vis-à-vis trains following the opposite direction along the Italian border. According to the testimonies of migrants returned to Italy, when police intercepts people coming from Italy, it orders them to return to Italy without starting of (sic) any formal procedure or without providing them with a written decision. Migrants have reported not being able to communicate with the Austrian police and to express their intention to seek asylum or–in some cases–to declare their minor age, namely due to the absence of linguistic mediators.  (Mouzourakis 2018: 13, emphasis added)

Although these practices have been documented prior to the introduction of Border Codes, the “threat” had always already been there at least as far as these two countries were concerned and they were already acting on it, transforming the small nodes such as the Villach train station in Austria into detention-like spaces, extending the exception spatially into the racialized infrastructures of the Schengen space. The end goal and the undisclosed “threat” being fought against has been reducing the number of registered asylum seekers in the EU databases. As an excerpt from AIDA Austria country report (Knapp, 2018) goes to show, the quotas for asylum seeking applications granted are reduced every year: 37.500 (2016) to 30.000 (2017, 2018) to 25.000 (2019)–including family reunification cases. Further to the Schengen Border Codes, Austria released the Austrian Asylum Act in 2016, including the provision of quotas and an emergency regime, which will allow, when the quotas are reached, the Austrian authorities “to reject people who make an asylum application at the border before providing them with the opportunity to formally lodge their application” (Mouzourakis 2018: 10), as the general report mentions. The specific Austrian report goes on to explain that: “in 2016, ‘special provisions to maintain public order during border checks’ were added to the Asylum Act. When the provision (discussed publicly as ‘emergency provision’) enters into force through a decree of the federal government, asylum seekers no longer have access to the asylum procedure in Austria” (Knapp 2018: 18). Thus, not only is Austria using all the provisions that the Schengen Border Codes allow in terms of intra-state border controls, but it makes sure to stretch the realm of what a national-level legislator can do under a supranational legal framework like that of the EU. Van der Wounde’s (2020) study on multi-scalar border and criminal law aspects involved in the application of Schengen Border Codes supports what I have outlined so far in this article. Van der Wounde mentions article 23 of the Schengen Border Codes, which allows countries to exercise police powers and to carry out identity checks.[5] A set of issues are involved in this multi-scalar framework. Firstly, the performance of jurisdiction becomes negotiated on the ground inside and between different policing forces, depending on the capacities and structures of each nation state (with Italy and Portugal for instance reporting the involvement of armed forces, alongside immigration authorities, customs and border guard agencies). Secondly, as per provisions of article 23, these checks cannot be performed at the border, so they are done within a short range of the border (one small train station before the border, as in the case of Villach in Austria). Thirdly, the legal mandate on which these checks operate is “a mixture of administrative and criminal law” and thus “equipping enforcement agencies with both crime and immigration powers and responsibilities” (Van der Woude 2020: 119). The reason for this mixture is the initial basis onto which the Border Codes and the exception of free intra-Schengen mobility argument have been constructed–as a threat to national security.

Certainly, nation-state interest is directed to a racially-informed control of the population and the actions of measuring, calculation and tabulation are important for the exercising of this control, yet I argue that it is valuable to start from the propositions Weheliye makes about the everydayness and everynightness of having flesh/having a body in an always already racialized assemblage. This assemblage contains and is in relationship with law-making operations and policy, and the racist infrastructure part of racial capitalism, which became globally “hyper-apparent in the ‘War on Terror’, where the link between the two and how the terror-industrial complex feeds into (infra)structural violence of the everyday” (Rana 2016: 124). Infrastructural racism and biopolitical calculations form articulations “of the flesh as a racializing assemblage in the world of Man [which] cannot be apprehended by legal recognition and inclusion” (Weheliye 73). What is needed, according to Weheliye is the “disarticulation of the flesh from the law” as a disarticulation of flesh and property or more conceptually, a disarticulation and decoupling from both “bare life and from Habeas Corpus.” This sits in tension with Agamben and his conception of “state of exception” and “bare life” as “exclusively legal categories” and rests on a longer tradition of critical thinking on oppression coming from black writers such as Frantz Fanon and Sylvia Wynter, on whom Weheliye relies to argue that the major problem with “bare life” is that “Agamben fails to introduce any sort of invention into existence […] and for him invention can occur only after the abolition of present life” (Weheliye 2014a: 83). What modalities of existence does, in turn, the Weheliyan habeas viscus conjure up? The project at stake here is “imagining the relational ontological totality of the human” (2014a: 4) in the context of racial capitalism and racial infrastructures.

The railway station in the small town of Villach, Austria acted as the setting for witnessing acts of border policing that not only should not have happened at the border itself, given the right to movement of people across Schengen states (including, in this case, asylum seekers with registration papers from a Schengen country–issued by the Italian authorities), but should definitely not have happened in a town approximately 20 km away from the Austrian border with the North of Italy. This article so far has paid close attention to a single, small node and a moment of policing not as an exceptional case, but as a way of engaging with the multi-scalar issues of racialized infrastructure and bordering practices. It has shown how Italian and Austrian officers engaged in collaborative border policing of this town as if this was indeed the border, and not a simple node in the frictionless travel promises of the Schengen area, including for those already registered as asylum seekers in one Schengen state. Their actions, as Van der Wounde’s study clearly expresses, is a mixture of criminal law and immigration law being enforced at the intersection of Italian and Austrian jurisdictions. This not being in fact a border and those policing it not being in fact immigration officers but having been given legal jurisdiction over bodies, they drew the border with these bodies. Clearly not a question of being sans papiers, since documentation was held and shown, it remained unclear and unexplained by either Austrian police or Italian Carabinieri why passports were required in this case. As the reports cited in the previous section have shown, the push from Austria and Italy to introduce internal border controls in the Schengen area has been coupled with racial profiling and increased checks on trains. But if the studies cited mostly referred to those seeking asylum and aiming to get to Italy to do so, then the experience witnessed in this small train station shows how similar profiling, checks and refusal of entry applies to those who have already been documented and are seeking to return to the issuing country.

So far, I have argued that this experience shows how the added Border Codes to the Schengen Agreement and additional law-making that the Austrian and Italian governments have compiled in their creation of legal states of exception only contribute to an erosion of the human, producing “the universalizing of exception [which] disables thinking humanity creatively” (Weheliye 2014a: 11). It shows how modern racializing assemblages reinstate what Fred Moten and Stefano Harney have called “the dream of governance”, which they argue is “to go beyond representation as a form of sovereignty, to auto-generating representation, in the double sense. Those who can represent themselves will also be those who re-present themselves as interests in one and the same move, collapsing the distinction” (2013: 56, emphasis added). This node underlines the promise of the Schengen area towards state sovereignty and its ambition of going beyond representation, yet remaining inside the realms of governanance, of legal representation, of habeas corpus presenting itself before the law. What this instance shows is that the dream of sovereignty and that of biopolitical calculation, tabulation, measure and control need the state of exception to co-function in this particular space that is the Schengen Area.

Schengen as Promise of Frictionless Sovereignty

“Relationality is frictional.” (Tsing 2006, cited in Kaiser and Thiele: 4)

The European Schengen Area is arguably a specific type of imagined space for frictionless sovereignty. The promise of the Schengen area is free movement of goods and people, the promise of a friction-less territory, and also a promise of state sovereignty maintained. This double promise, as shown so far, has historically, even from its constituting moments, been hard to keep. The law is the point where the double bind in the promise becomes a tension, particularly in the hinging of frictionless sovereignty. The existence and application of Schengen Border Codes, when read in their relation to the racial infrastructures of Fortress Europe and the state of exception making bodies into borders, also bring into relation the areas that “rub the wrong way” in both the promise of free movement and the fiction that is sovereignty. This section will build on previously mentioned Weheliyan critiques of the messianic in Agamben’s conception, and juxtapose these to the notion of friction as situated, relational, and embodied. I interpret these frictions as opening up what Fred Moten calls the “the illusory coherence in/and spatio-temporal constitution of sovereignty” (2017, emphasis added). This maintained illusion of coherence is part of a larger condition of the sovereign, what Moten reading Frantz Fanon highlights as a neurosis, “the habitual attempt to regulate the general, generative disorder” (2013: 137). For the neurosis driven by the sovereign condition there is no space for expression, for affirmation given to flesh unless it is considered bare life, even if that space comes into being through the friction of nation states in various states of exception, legal or not. The questions of sovereignty and bodies, sovereignty and death in the sense of calculation, power, and control is something that Achille Mbembe takes up via Giorgio Agamben through a discussion of bare or mere life and necropolitics. Recognising Mbembe’s contribution, this is nevertheless a line of argument this article is aiming to critique, particularly insofar as in it, a passage happens from human “into the categories of meat and of flesh, of being reduced to mere and simple life” (Mbembe 2005: 161). Yet flesh, when not abstracted in this way, moves, shakes and makes visible the illusory coherence of sovereignty, as Weheliye argues. Flesh makes this illusion crumble in more than one way. The aspect of sovereignty that refers to exerting power on bare life as calculation and control is what comes into question when having flesh becomes central to understanding the infra-structural and legal constitutions of sovereignty as racialized assemblages. This stands in opposition to a view of sovereignty as “a mark of something originary, of a will that is self-born and unaccountable,” something apparent in Carl Schmitt’s work on political theology (Hansen and Stepputat 2005: 15).

As one of Agamben’s prominent influences, Carl Schmitt’s work has been picked up in critical theory with some consideration given to his central role in the German Nazi party but surprisingly, with a good degree of academic redemption. “In Schmitt’s view, sovereignty does not have the form of law; it lies behind, and makes possible the authority of the law” (Hansen and Stepputat 2005: 16). Weheliye states that Agamben “infuses [his work] with Carl Schmitt’s thoughts on sovereignty” (2014a: 33). Agamben takes from Schmitt the premise that the sovereign decides on the state of exception and that this is part and parcel of the law. Furthermore, Agamben engages with sovereign power over bodies and populations through bare life, making possible the reduction of life to an abstracted form of flesh, only visible when it appears in calculation. As Weheliye shows, Agamben insists on the bond with and abandonment to the law of every living being but does not address the fact that the “the state of exception does not apply equally to all, since the exclusion of and violence perpetrated against some groups is anchored in the law” (Weheliye 2014a: 87). For Schmitt, where Agamben takes his influence, “the Earth is bound to Law” (Schmitt 1950: 42) and “nomos is the measure by which land in a particular order is divided an situated” (Schmitt, 1950, 71) therefore tabulation, calculation and measurement are inherently bound to law. The nomos is of and in the Earth, and the law is in there too, bound up with the Earth. Thus, any exception to this relation between law and Earth belongs to the powers of the sovereign and it is a legal decision. In other words, the decisions of the sovereign are also bound up with law and Earth (soil and blood) and they are legal decisions. In Schmitt’s later work, The Nomos of The Earth (1950) there seems to be a shift from the sovereign decision central to his earlier work to nomos because this term “emphasizes much more the idea of ‘concrete order’” (Antaki 2004: 323). In the next section, I will focus on how Schmitt’s arguments about the nomos have been criticized for holding the illusory coherence of sovereignty, if not through decisionism, perhaps even more worryingly, though an argument of bounded-ness, of friction-less relation between law, soil, of divvying up and parcelling out that extends from colonial thought and disregards whole sections of populations as belonging to the category of the human.

Map and Territory: Also a Question of the Human

“The existence of black life disenchants Western humanism.”  (Weheliye 2014b: 5)

To return to the main points raised in the first section of this article and the central argument in Weheliye’s project: the concept under critical revision is that of the human, as an assemblage accounting for gender, racialization, coloniality, slavery, political violence, especially shaped and sharpened in the work of Sylvia Wynter and Hortense Spillers. The challenge of this revision rests in centring black feminist epistemology “without mapping these questions [of the human] onto a mutually exclusive struggle between either the free-flowing terra nullius of the universally applicable or the terra cognitus of the ethnographically detained” (Weheliye 2014a: 24, my emphasis).

Terra nullius as principle in International Law has been set in place to justify claims that territory may be acquired by a state’s occupation of it. It implies, of course, that before occupation, this was the territory of feral beasts, human or non-human. Terra nullius is also, not surprisingly, the legal term connected to the Berlin Conference (1884-5) and the colonial occupation in the African continent. What conception of the human can then arise from the idea of “the free-flowing terra nullius of the universally applicable”? Whiteness, imperialism, the world of Man and that of colonialist occupation function as ontological and epistemological grounds.

On the other hand, terra cognitus designates the known, the acquainted with but also the tried and proved, the knowledge stemming corporeally, from the body and from lived experience. This, however is the knowledge of Man, hence the play on gender in the formulation Weheliye chooses in Latin; this is undoubtedly the terra cognitus of the world of Man. What conception of the human arises from “the terra cognitus of the ethnographically detained”? Weheliye argues that what arises is the particular epistemology, the exception and the particular land claim that are often relegated to identitarian claims and stuck in the space associated with the group identity, or of territory associated with that identity. He continues by stating that in the Western epistemological system of value, black studies has been relegated to the disciplinary particular of ethnic studies, ethnographically detained, and that this relegation has been doubled by a disregard for black life which “has represented a negative ontological ground for the Western order of things at least for the last five hundred years” (Weheliye 2014b: 5). He goes on to argue that the underlining ground for this epistemological parsing has at its core a dichotomy between black life and other types of life, whereas black studies understands the human “not [as] an ontological fait accompli” (Weheliye 2014a: 7). If the human is not a given, completed and bound up in legal structures dictated by the sovereign by decision, the human should also not be defined and bound up by the world of Man, particularly through nomos. Quite the opposite, as Anna Jurkevics underlines, following Hannah Arendt, “the nomos should stay open to contestation in the future. The world and the nomos are rooted and concrete, but not static, in the Arendtian conception” (Jurkevics 2017: 358).

If the nomos stays open to contestation then the question of the human can move between the universal and the particular, between identity and rootedness into a space or territory with the situated knowledge that arises from that position, conceptualizing and making sense of human experience as a whole. What we could define as human thus interfaces between these positions and spaces, mapping and parsing out through the entangled dimensions these open up, rather than belonging to one or the other.

For Schmitt, the word nomos (law) is primordially and primarily tied to land and opens up questions of excess and exception. In what follows, I will consider Jurkevics’s article, which engages with Hannah Arendt’s indirect critiques of Schmitt and particularly with his view of nomos as intrinsically imperial and racist, which will bring us back to Weheliye’s argument on the racialized assemblage of legal and institutional infrastructures and the question of the human, once more.

This critique of Schmitt is put together by Anna Jurkevics in her research resting on evidence from marginalia written by Hannah Arendt in her copy of Nomos of the Earth, pointing to what she calls “an incisive critique of Schmitt’s geopolitics and International Law” (2017: 346). Jurkevics argues that the relevance of this find is not purely identifying a never published historical conversation but that its implications are mostly contemporary. According to her article, in the U.S. context and academic debate Arendt’s notes on the book open up new and important questions on the use of Schmitt’s concept of nomos in scholarly work as “a tool against American empire in the post 9/11 era” (Jurkevics 2017: 1). One could say that by extension, this critique could have effect on how Schmitt’s work has been deployed in critical conversations around risk, terror threats and attacks. In the case of Europe, the EU and Schengen area, the intrinsically imperialist nomos that Fortress Europe is enforcing as violent geopolitics could expose the use of Schmitt’s concept into critical questioning as well. Jurkevics argues that a scholarly deployment of Schmitt “will have to grapple a contradiction, exposed by Arendt, that lies at the core of Schmitt’s geopolitics, namely that he both embraces conquest and repudiates imperialism” (2017: 346).

Europe is bound to law, exception is also law and to be human means to have a body before that law. This opens up implications for the Jus Publicum Europaeum–the principle of equality of states in International Law, as it was codified in Europe in 1814. If we follow Arendt’s critique of nomos, as a philosophical as well as historical concept, it is apparent that for Schmitt this concept is “based on the idea of land-appropriation, and is thus imperialist” (Jurkevics 2017: 352) and that this appropriation happens primarily through conquest. Such is the history of European Law defined through conquest of territories outside of it. This imperialist set of legal prescriptions in tied into the history of European law-making through colonialism and it has structural implications on how any current legal configurations, like the Schengen Agreement and the Schengen Border Codes can be considered as lawful, especially towards those bodies whom could be considered worthy of standing before these laws of Man:

Arendt’s concern about justice comes out most vehemently in her comments about Schmitt’s history of colonialism. In this account, some land-appropriations established a new nomos while others did not. Schmitt is interested in understanding the land-appropriations that constituted a new nomos; he is not interested in the wrongs that resulted from them. Arendt responds firmly: ‘‘that jurists do not know what justice is does not give Schmitt the right to equate injustice and law-making.’’ (marginalia: 50). Arendt wants him to admit that these land-appropriations are unjust, are the original sin of a new order, instead of equating them with law. (Jurkevics 2017: 351)

Essentially, the central questions that Arendt raises are around what the source of law is, according to Schmitt and also, where is it situated? Jurkevics clarifies that most likely Schmitt’s answer would be “that law springs from the soil in the moment that it is captured, cultivated, and bounded” (Jurkevics 2017: 349). Citing Arendt’s further marginalia in her own copy of The Nomos of The Earth, Jurkevics provides an answer to a later issue stemming from the same problem of nomos, as Arendt had seen it: the fact that “Schmitt misunderstood that Nazi ideology was, in the first place, racist, not geopolitical (marginalia: 211)” (cited in Jurkevics 2017: 349). As plurality does not feature for Schmitt in the same way that it plays a role in understanding the relationship between law and politics for Arendt, “she complains repeatedly that people, human beings, are cut out of his account” (Jurkevics 2017: 349) and the focus is on earth as soil and battleground. These sites of conquest are for Schmitt central to law-making and thus, as central sites of conquest and abuse, as the linguistic source of the word nomos itself indicates (from nemein, as nehmen/to take and as teilen/to divide).

Land-capture or occupation or conquest is obviously the sine qua non of land-division. But questions of right first arise with division, which accords each his own- …questions of right come about during the divvying up of the New World only once it comes to division…before the acquisition comes the division and not conquest! (marginalia: 108) (Jukevics 2017: 352)

This key point in Arendt’s critique rests on the fact that for Schmitt, appropriation comes before division, which is essentially an imperialist view. Parsing out land and making territory is preceded by conquest and Arendt raises questions of right around divvying up processes, like those involved in colonial conquest and their role in justifying and legitimating a historically fascist European rule. If Arendt’s marginalia notes have served here to compose a grounded critique of Schmitt, then that is their limit and the reason is mainly Arendt’s own anti-Black racism as pointed out in growing contemporary scholarship on Arendt’s The Origins of Totalitarianism (1962), On Violence (1970) and most strikingly, Reflections on Little Rock (1959).  For example, in a reading of On Violence, Chad Kautzer makes the case that mobilizing Arendt’s ideas about the instrumentality of violence as a resource in producing critical reading of contemporary violence could risk giving way to spaces where her thinking is “complicit with the violent logic of a different order” (Kautzer 2019: 2). That order, Kautzer goes on to argue, is that of legal and state violence, especially when considered as a racialized assemblage, meaning a constellation which enforces the role of the white vigilante and “charges those who resist it with breaching the peace” (2019: 1). The reason for the former is that Arendt did not directly address state violence which emerges through social issues and particularly structural racism and white privilege, even when writing at the time of International decolonial struggles and the height of the Black Power movement in the United States. She consistently ignored the issue of structural state racism and actively deemed black liberation movements that involved forms of violence as “irrational, provocative and […] clearly unjustified” (Kautzer 2019: 11), going as far as arguing that there is an inherent “lawlessness” to Black communities, which makes them responsible for further “white backlash” (Arendt, 1968 cited in Kautzer 2019: 10). These readings are echoed in Patricia Owens’ analysis of the ideas put forth in On Violence. Apart from “her consistent refusal to analyse the colonial and imperial origins of racial conflict in the United States” (Owens 2017: 403), Arendt also openly disagrees with Sartre and Fanon, refuses to recognize the Third World as a transnational site in decolonial struggles, and considers it a mere inversion of imperialist ideas of territory, concocted by the European New Left. She thus excises any agency from the proponents of these struggles in these sites in the world and re-centers European knowledge production as a site of power. Furthermore, if in The Origins of Totalitarianism Arendt makes “dubious attempts to sever the historical and political link between racism in America and the forms of imperial racism” (Owens 2017: 414) then in The Human Condition she states in no unclear terms: “universal experience is not a substitute for particularity and plurality” (Owens 2017: 416).

In short, translating to the issues raised in this article so far, Arendt, who has been extensively cited in contemporary scholarship on European migration deals with imperialism and colonialism in the same terms, drawing up divisions between nature and culture and between terra nullius and terra cognitus, tensions between the universal of the terra nullius and the particular of identitarian land claims. She replicates exactly the same division, which further down the argumentative line leads her to the question of the human. Most explicitly in works like The Human Condition, Arendt draws divisions between those “more or less ‘cultured’, more or less free, and thus more or less fully human” (Owens 2017: 412). She might not rely on evolutionism but reaches the same anti-Black conclusion, which makes her deem African tribal communities as never fully human (Owens 2017: 412). The Euro-centrism and anti-primitivism that Arendt upholds throughout her work thus falls into the same world of Man, as the white colonial rule over land and people, where law incorporates everything. Overall, this amounts to an argument that stands together with a third critic of Arendt’s most obvious anti-Black racist piece, Reflections on Little Rock, Michael D. Burroughs (2015: 52), who writes that it is “white ignorance [which] constitutes a fundamental epistemic error” for Arendt’s line of argumentation.

Divvying, even when division precedes conquest as Arendt’s correction of Schmitt shows, is an ontological and epistemological form of violence, when the human is conceived through the world of Man. It excludes the possibility of being for anything outside of the figure of Man as the secular, modern and Western version of the human. Weheliye’s propositions insist on disarticulating the flesh from the law, and call for imagining a modality of existence that is tied up neither with the sovereign nor the nomos. For Weheliye, miniscule moments, shards of hope, scraps of food “swarm the ether of Man’s legal apparatus, which does not mean that these formations annul the brutal validity of bare life, biopolitics, necropolitics, social death, or racializing assemblages but that Man’s juridical machine can never exhaust the plentitude of our world” (Weheliye 2014a: 131). In this process of disarticulation, which follows black thought and lived experience foremost, we could start to hopefully think and be with “enfleshed modalities of humanity” (ibid: 13).

Conclusion

This article has emerged from an experience of witnessing how European Law is enacted on racialized bodies during current anti-immigration efforts of nation-states that are part of the European Schengen territories, like Italy and Austria. It has offered an abstracted reflection on how the human body, in its enfleshed being, becomes the border, even when the promise of no borders marks the foundations of such a project of friction-less sovereignty. Europe is bound to law and an essential source of European Law’s mutation over centuries of application into its current wide-reaching iteration is imperial and colonial violence based in conquest of soil, bodies, and blood. Academic thought upon which we often rest our critiques of these laws replicate anti-black and other forms of racism stemming from the liberal humanities of the world of Man. Black scholars and black studies have consistently offered knowledge and experience, which should be considered sources and not alternatives to the current challenge of thinking the human and beyond. The aim has been to centre this knowledge in the interpretation of current bordering practices, which try to make bodies appear before the law through enforcement and articulation. What became apparent in setting an event against the legal framework of Schengen Border Codes, regulatory regimes, and jurisdictions is that the border becomes visible in the “hieroglyphs of flesh” Weheliye mentions, producing friction in the dream and promise of frictionless sovereignty.

Mihaela Brebenel is a screen and visual studies researcher. They are interested in feminist and queer practices, as well as the aesthetics and politics of screen (and other) technologies. They work as Lecturer in Digital Cultures at Winchester School of Art, University of Southampton and are part of Archaeologies of Media and Technology Research group.

References

Agamben, Giorgio (1998) Sovereign Power and Bare Life, trans. Daniel Heller-Roazen. Stanford, Calif.: Stanford University Press.

Antaki, Mark (2004) “Carl Schmitt’s Nomos of the Earth.” Osgoode Hall Law Journal. 42:2, 317–34.

Arendt, Hannah (1959) “Reflections on Little Rock.” Dissent, 6:1, 45-56.

— (1962) The Origins of Totalitarianism. Cleveland: Meridian Books.

— (1970) On Violence. New York: Harcourt, Brace, Jovanovich.

Bove, Caterina (2018) “Country Report – Italy | Asylum Information Database.” European Council for Refugees and Exiles (ECRE). https://www.asylumineurope.org/reports/country/italy. Accessed: 25 September 2019.

Brar, Dhanveer Singh (2014) “Hieroglyphs of the Flesh.” new formations: a journal of culture/theory/politics 83(1), 144-146.

Burroughs, Michael (2015) “Hannah Arendt, ‘Reflections on Little Rock,’ and White Ignorance.” Critical Philosophy of Race 3:1, 52–78.

Césaire, Aimé (1955) Discourse on Colonialism, trans. Joan Pinkham. Reprint, New York: Monthly Review Press, 1972.

Schengen Visa Info (2019) “ETUC: Italy Leaving Schengen, Means Isolating Itself From Europe”. Published: 8 July 2019, https://www.schengenvisainfo.com/news/etuc-italy-leaving-schengen-means-isolating-itself-from-europe/ Accessed: October 2019.

Hansen, Thomas Blom and Finn Stepputat (eds.) (2005) Sovereign Bodies: Citizens, Migrants, and States in the Postcolonial World. Princeton: Princeton University Press.

Harney, Stefano and Fred Moten (2013) The Undercommons: Fugitive Planning and Black Study. Wivenhoe: Minor Compositions.

Hartman, Saidiya V. (2010) Scenes of Subjection: Terror, Slavery, and Self-Making in Nineteenth-Century America. New York; Oxford: Oxford University Press.

— (2019) Wayward Lives, Beautiful Experiments: Intimate Histories of Social Upheaval. New York: W. W. Norton & Company.

Jurkevics, Anna (2017) “Hannah Arendt Reads Carl Schmitt’s The Nomos of the Earth: A Dialogue on Law and Geopolitics from the Margins.” European Journal of Political Theory European Journal of Political Theory 16:3, 345–66.

Kaiser, Birgit, M. and Katrin Thiele (2018) “Returning (to) the Question of the Human. An Introduction.” PhiloSOPHIA 8:1, 1–17.

Kautzer, Chad (2019) “Political Violence and Race: A Critique of Hannah Arendt.” CLCWeb: Comparative Literature and Culture 21:3.

Knapp, Anny (2018) “Country Report – Austria | Asylum Information Database.” European Council for Refugees and Exiles (ECRE). https://www.asylumineurope.org/reports/country/austria. Accessed: 25 September 2019.

Lewis R. Gordon (ed.) A Companion to African-American Studies, Oxford, UK: Blackwell Publishing, pp. 107–18.

Mbembe, Achille (2009) “Sovereignty as a Form of Expenditure” in Hansen, Stepputat (eds) Sovereign Bodies: Citizens, Migrants, and States in the Postcolonial World. Princeton: Princeton University Press, pp. 148–69.

— (2017) Critique of Black Reason, trans. Laurent Dubois. Durham and London: Duke University Press.

McKittrick, Katherine (ed.) (2015) Sylvia Wynter: On Being Human as Praxis. Durham and London: Duke University Press.

Moten, Fred (2017) Black and Blur. Consent Not to Be a Single Being. Durham and London: Duke University Press.

Mouzourakis, Minos (2018) “Access to Protection in Europe. Borders and Entry into the Territory.” Asylum Information Database: European Council for Refugees and Exiles (ECRE). https://www.asylumineurope.org/2018-iii.

Opratko, Benjamin (2020) “Austria’s Green Party Will Pay a High Price for Its

Dangerous Alliance with the Right.” The Guardian, 9 January 2020, https://www.theguardian.com/commentisfree/2020/jan/09/austria-greens-right-peoples-party-anti-immigration.

Owens, Patricia (2017) “Racism in the Theory Canon: Hannah Arendt and ‘the One Great Crime in Which America Was Never Involved’.” Millennium 45:3, 403–24.

Rana, Junaid (2016) “The Racial Infrastructure of the Terror-Industrial Complex.” Social Text 34:4, 111–38.

Rodríguez, Dylan (2016) “Los Angeles’ Coalition Against Police Abuse (CAPA) and the Obsolescence of White Academic Raciality” in Zurn and Dilts (eds.) Active Intolerance. Michel Foucault, The Prison Information Group, and the Future of Abolition. Basingstoke and New York: Palgrave Macmillan, pp.145-169.

Schengen Visa Info. 2019. “ETUC: Italy Leaving Schengen, Means Isolating Itself from Europe.” Accessed 15 May 2020. https://www.schengenvisainfo.com/news/etuc-italy-leaving-schengen-means-isolating-itself-from-europe.

Schmitt, Carl (1950) The Nomos of the Earth in the International Law of the Jus Publicum Europaeum. New York: Telos Press Publishing.

“Travel Documents – Italy | Asylum Information Database.” https://www.asylumineurope.org/reports/country/italy/content-international-protection/movement-and-mobility/travel-documents, accessed 24 September 2019.

Tsing, Anna Lowenhaupt (2015) Friction: An Ethnography of Global Connection. Princeton and Oxford: Princeton University Press.

Van der Woude M. (2019) “A Patchwork of Intra-Schengen Policing: Border Games over National Identity and National Sovereignty. ” Theoretical Criminology 24:1, 110–31.

Weheliye, Alexander G. (2014a) Habeas Viscus: Racializing Assemblages, Biopolitics, and Black Feminist Theories of the Human. Durham and London: Duke University Press.

Weheliye, Alexander G. (2014b) “Introduction.” The Black Scholar 44:2, 5–10. https://doi.org/10.1080/00064246.2014.11413682.

Wynter, Sylvia (2006) “On How We Mistook the Map for the Territory, and Reimprisoned Ourselves in Our Unbearable Wrongness of Being, Of Désêtre” in Lewis R. Gordon (ed.) A Companion to African-American Studies, Oxford, UK: Blackwell Publishing, pp. 107–18.

[1] “The Asylum Information Database is a database managed by ECRE, containing information on asylum procedures, reception conditions, detention and content of international protection across 23 European countries. This includes 20 European Union (EU) Member States (Austria, Belgium, Bulgaria, Cyprus, Germany, Spain, France, Greece, Croatia, Hungary, Ireland, Italy, Malta, Netherlands, Poland, Portugal, Romania, Sweden, Slovenia, and United Kingdom) and 3 non-EU countries (Switzerland, Serbia, Turkey).”n.p.

[1] I would like to thank Ryan Bishop for his editorial guidance and patient support in the development of this article and beyond. Scott Wark, Grace Tillyard, Peter Rees and Charlotte Terrell have made this time of academic writing in quarantine feel nurturing by offering great support on versions of this article. Thank you also to peers Ilona Jurkonytė and Nikolaus Perneczky for your careful notes and attention to the script. And in the most heartfelt way to Ariya, for her ways of holding space and being present.

[2] In Austria’s case, the more recent and insidious collaboration of the Green Party with known conservative parties in supporting anti-immigration policies is particularly notable. See Oprakto (2020).

[3] The rush to close borders in between Schengen states has never been more clear than in the current pandemic, where with the outbreak of COVID 19, there has been a return to hard borders between all EU member states, again leaving refugees and asylum seekers outside of the structures of care they are legally and humanly entitled to.

[4] https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/schengen/reintroduction-border-control_en

[5] Article 23 states that these discretionary policing activities can take place as long as “(1) the exercise of these powers cannot be considered equivalent to the exercise of border checks, (2) the police measures do not have border control as an objective, (3) are based on general police information and experience regarding possible threats to public security and aim, in particular, to combat cross-border crime and, lastly, (4) as long as the measures are devised and executed in a manner clearly distinct from systematic checks on persons at the external borders and are carried out on the basis of spot-checks” (Van der Woude 2020, 118).