Constitutional Theory: Schmitt after Derrida This book advances a new reading of the central works of Carl Schmitt and, in so doing, rethinks the primary concepts of constitutional theory. In this book, Jacques de Ville engages in a close analysis of a number of Schmitt’s texts, including Dictatorship (1921), The Concept of the Political (1927), Constitutional Theory (1928), Land and Sea (1942), Ex Captivitate Salus (1950), The Nomos of the Earth (1950) and The Theory of the Partisan (1963). This engagement takes place from the perspective of constitutional theory and focuses specifically on concepts or themes such as sovereignty, the state, the political, constituent power, democracy, representation, the constitution and human rights. The book seeks to rethink the structure of these concepts in line with Derrida’s analysis of Schmitt’s texts on the concept of the political in Politics of Friendship (1993). This happens by way of an analysis of Derrida’s engagement with Freud and other psychoanalysts. Although the main focus in the book is on Schmitt’s texts, it further examines two texts of Derrida (Khōra (1993) and Fors: The Anglish Words of Nicholas Abraham and Maria Torok (1976)), by reading these alongside Schmitt’s own reflections on the positive concept of the constitution. Jacques de Ville is Professor of Law at the University of the Western Cape, South Africa. Constitutional Theory: Schmitt after Derrida Jacques de Ville First published 2017 by Birkbeck Law Press 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Birkbeck Law Press 711 Third Avenue, New York, NY 10017 Birkbeck Law Press is an imprint of the Taylor & Francis Group, an informa business © 2017 Jacques de Ville The right of Jacques de Ville to be identifed as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. The Open Access version of this book, available at www.taylorfrancis.com, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Names: De Ville, Jacques, author. Title: Constitutional theory : Schmitt after Derrida / Jacques de Ville. Description: Abingdon, Oxon [UK]; New York : Routledge, 2017. | Includes bibliographical references and index. Identifiers: LCCN 2016044265| ISBN 9781138293786 (hardback) | ISBN 9781351866408 (adobe reader) | ISBN 9781351866392 (epub3) | ISBN 9781351866385 (mobipocket) Subjects: LCSH: State, The. | Constitutional law—Philosophy. | Constituent power. | Constitution (Philosophy) | Human rights. | Derrida, Jacques. Politiques de l’amitié. English. | Schmitt, Carl, 1888–1985. Classification: LCC K3165. D425 2017 | DDC 342.001—dc23 LC record available at https://lccn.loc.gov/2016044265 ISBN: 978-1-138-29378-6 (hbk) ISBN: 978-0-367-02414-7 (pbk) ISBN: 978-1-315-23188-4 (ebk) Typeset in Times New Roman by Keystroke, Neville Lodge, Tettenhall, Wolverhampton For Zanél, Chloé and Kelsey Contents Acknowledgements xi Note on translations and references xiii List of abbreviations xv 1 Introduction 1 Schmitt and Derrida 1 Constitutional theory 1 Reading Schmitt 2 Sequence and overview of chapters 6 2 The concept of the political 9 A. Polémios 11 Introduction 11 Plato 13 Schmitt 15 Freud 22 Heidegger 25 The structure of the political 31 B. Partisan 32 Introduction 32 Criteria 34 The question of technology 36 Philosophy and the Acheron 38 The brother as double 43 Woman as the absolute partisan 49 Today’s terror and the structure of the political 50 C. Self 53 Introduction 53 Defining man: nakedness 54 viii Contents Stirner and his ego 55 Modern technology 58 Being-placed-in-question 60 Self-deception 62 Descartes and the self as enemy 65 Hegel and the enemy 67 Echo 70 The concept of the political 72 3 Constituent power 74 Introduction 74 Political unity 75 Political theology 78 Fear and the Leviathan 82 Demos without sovereignty 85 Conclusion 89 4 Identity and representation 90 Introduction 90 The formation of identity 91 Representation reconceived 95 Conclusion 101 5 The concept of the constitution 102 A. Khōra 104 Introduction 104 Derrida’s reading of the Timaeus 105 Khōra and the political 111 Constitutions as giving place 116 B. Crypt 121 Introduction 121 The Wolf Man 123 The Wolf Man’s crypt 128 Constitution, memory and trauma 137 6 Human rights 139 Introduction 139 Freedom 140 Equality 154 Living together 160 Contents ix 7 State, Groβraum, nomos 163 Introduction 163 Nomos 164 Man, space, nomos 177 Conclusion 179 8 Conclusion 182 Schmitt ‘before’ Derrida 182 Derrida reading Schmitt 183 Schmitt ‘after’ Derrida 185 Bibliography 187 Index 205 Acknowledgements A few people deserve special mention here for their sharing of insights and providing support and assistance to me over the years leading to the present publication. These include Jaco Barnard-Naudé, Henk Botha, Cosmin Cercel, Julia Chryssostalis, Wessel le Roux, Susanna Lindroos-Hovinheimo, Panu Minkkinen, Stewart Motha, Kessler Perumalsamy, Nico Steytler and Philippe van Haute. Lynn Thomas and Hazel Jeftha are thanked for providing administrative support, as well as the personnel at the University of the Western Cape library, specifically Messrs Fortune and Tarkey and Mmes Moon, Mpandle and Primo. Costas Douzinas, Fiona Macmillan and the rest of the editorial board of Birkbeck Law Press, as well as Colin Perrin, are thanked for their support of this project. I would also like to express my thanks to the two anonymous reviewers for their comments. Earlier versions of most of the chapters included in the present publication have been presented at conferences and some have appeared in print before. Each of these papers, articles and chapters were thoroughly reworked for the present publication: Chapter 2, Section A was presented at the International Symposium for Phenomenology, 8–13 July 2013, held in Perugia, Italy, and was published in 2015 as ‘The foreign body within the body politic: Derrida, Schmitt and the concept of the political’, Law and Critique, 26(1): 45–63. Chapter 2, Section B was presented at a Swedish-Finnish workshop ‘Friend or Foe? The Contemporary Relevance of Carl Schmitt’, 17–18 June 2013 at the Faculty of Law, University of Helsinki, Finland and was published in 2016 as ‘Rethinking the concept of the political: Derrida’s reading of Schmitt’s “The Theory of the Partisan”’, pp. 134– 46, in M. Arvidsson, L. Brännstrm and P. Minkkinen (eds), The Contemporary Relevance of Carl Schmitt: Law, Politics, Theology, Abingdon and New York: Routledge. Chapter 2, Section C was presented at the Critical Legal Conference, 5–7 September 2013, held at the Queen’s University Belfast, Northern Ireland and was published in 2016 as ‘Schmitt’s Weisheit der Zelle: rethinking the concept of the political’, pp. 215–31, in S. Motha and H. van Rijswijk (eds), Law, Violence, Memory: Uncovering the Counter-Archive, Abingdon and New York: Routledge. xii Acknowledgements Chapter 3 was presented at the Derrida Today Conference, 8–11 June 2016, held at Goldsmiths, University of London. Chapter 4 was presented at the Critical Legal Conference, 1–3 September 2016, held at the University of Kent, UK. Chapter 5(a) was presented at the International Summer School on Religion, Law and Justice, 24–26 February 2015, University of the Western Cape, South Africa, and at the conference Law in Crisis: New Developments, 25 September 2015, Potchefstroom, North-West University, South Africa. Chapter 5, Section B was presented at the International Symposium for Phenomenology, 6–11 July 2015, held in Perugia, Italy. Chapter 7 was presented at the Critical Legal Conference, 3–5 September 2015, held at the University of Wrocław, Poland. Chapter 2, Section C, Chapter 5, Section A and Chapter 6 were (also) presented at Faculty and Departmental Seminars of the University of the Western Cape. I would like to express my thanks to all the participants in these seminars, workshops, conferences and symposia for their useful comments, as well as to the publishers for permission to include the material previously published, in the present publication. Note on translations and references In the chapters that follow, reference will as a rule be made only to the English version where a translation of a specific text of Schmitt and Derrida is available. If a quotation is at stake or where the wording of the original French (in the case of Derrida) or German (in the case of Schmitt) is a central issue, reference will be made to both the translation and the original, where the latter was available to me. The same applies to the translated texts of other authors. Reference to the original text is essential for purposes of the close reading of Schmitt, and to some extent of Derrida, undertaken here. Where no reference is made to a specific English translation of a text in the original French and German by Derrida, Schmitt or another author, the translation is my own. English translations have in many cases been modified. This will not be specifically indicated in respect of each translation so modified. List of abbreviations For ease of reference, the following abbreviations are used for the most frequently cited texts of Derrida and of Schmitt. Full references are given in the Bibliography. Adieu Adieu: to Emmanuel Levinas (Derrida 1999b) AR Acts of Religion (Derrida 2002a) ‘Auto’ ‘Autoimmunity: real and symbolic suicides – a dialogue with Jacques Derrida’, in Philosophy in a Time of Terror: Dialogues with Jrgen Habermas and Jacques Derrida (Derrida 2003a) BdP Der Begriff des Politischen (Schmitt 2002a) B&S I The Beast & the Sovereign, vol.