Insecure Times, Tough Decisions: The Nomos of Neoliberalism

A comparative reading of Michel Foucault's seminars of the late 1970s and the political philosophy of Carl Schmitt reveal some provocative points of intersection and discord. In retrospect it might appear as if, hovering around the same questions, but to remarkably different effect, Foucault and Schmitt were engaged in violent argument with each other. Schmitt's work is remarkable for its unrelenting assertion of the primacy of sovereign power in the modern nation-state. Aligning himself with the theoretical legacy of Thomas Hobbes, Schmitt locates the crux of power in the act of sovereign decision, with its right to determine when and if the protection of the law should be maintained or suspended. Both Schmitt and Foucault seem to be in agreement that the true scope of sovereign power can be defined only in negative terms, as a power to suspend itself and thus to expose the life of its subjects to the absolute violence of the "state of nature." According to a famous formulation of Foucault's, the sovereign exercises a power to let live and to make die. 1 For Schmitt, the sovereign reveals its power when it declares a "state of exception" - a state of lawful lawlessness in which the act of taking another's life is divested of any sense of juridical fault or responsibility.2 What Schmitt proposes is not only a historical account of the sovereign nation-state but also a deeply polemical plea in favor of a constitutional model that he considered to be the crowning achievement of the Western political tradition. His later work is haunted by a profound sense of regret for a model of power that, by his own admission, was already in decline.3 Foucault's seminars of the late 1970s are concerned with the period following the 1649 Treaty of Westphalia, in which the