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Ivan Vincent A.

Parena

Sons of Holy Mary Immaculate

THE PARADOX OF SOVEREIGNTY

1.0 The paradox of sovereignty consists in the fact that the sovereign is at the same time, outside and
inside the juridical order.
1.0.1 Juridical order grants the sovereign the power of exception and of suspending the orders
own validity (outside juridical order).
1.0.2 The sovereign has the legal power to suspend the validity of the law (inside juridical order).

1.1 Sovereignty marks the limit of the juridical order.


1.1.1 It will become clear only once the structure of exception is understood.
1.1.2 The exception is that which cannot be subsumed; it defies codification; it is decision in
absolute purity.
1.1.3 Through the state of exception, the sovereign “creates and guarantees the situation” that the
law needs for its own validity.
1.1.4 The exception transcends positive law in the form of suspension.

1.2 The exception is a kind of exclusion, but the most proper characteristic of the exception is that what
is excluded in the rule is not absolutely without relation to the rule.
1.2.1 what is excluded in the exception maintains itself in relation to the rule in the form of the
rule’s suspension.
1.2.2 The etymology of exception is ex-capere, taken outside, and not simply exluded.
1.2.3 Agamben calls it the “relation of exception”
1.2.4 The state of exception has the peculiar characteristic that it cannot be defined either as a
situation of fact “is” or as a situation of right “ought”, but instead institutes a paradoxical
threshold of indistiction between the two.
1.2.5 The sovereign exception is the fundamental localization(Ortung), which does not limit itself
to distinguish what is inside from what is outside but traces a threshold between the two.
1.2.6 The state of exception is essentially un-localizable, even if the specific spatiotemporal limits
can be assigned to it from time to time.
1.2.7 The State of exception is becoming more and more the rule.
1.2.7.1 We are putting ever more effort into localizing the exception, the result is the concentration
camp.

1.3 The validity of a rule does not coincide with its application to the individual case; the rule has to
be generally valid.
1.3.1 the rule can refer to the individual case only because it is in force, in the sovereign exception,
as pure potentiality in the suspension of every actual reference.
1.3.2 Every application of a rule can result in a transgression of a rule.

1.4 Exception is situated in a symmetrical position with respect to the example.


1.4.1 Exception is inclusive exclusion (to include what is excluded)
1.4.2 Example is exclusive inclusion (to exclude what is included)
1.4.3 Exception and example are correlative concepts that are ultimately indistinguishable and that
come into play every time that very sense of the belonging and commonality of the individual
is to be defined.

1.5 Set theory distinguishes between membership and inclusion.


1.5.1 For Badiou, membership correspond to presentation and inclusion correspond to
representation.
1.5.2 The exception is what cannot be included in the whole of which it is a member and cannot be
a member of the whole in which it is always already included.

1.6 Sovereignty present itself in the form of a decision on the exception.


1.6.1 The decision represents the inscription within the body of the nomos of the exteriority that
animate it and gives it meaning.
1.6.2 The decision concerns neither a quaestio iuris nor a quaestio facti, but rather the very
relation between law and fact. (Nature of law)
1.6.3 The structure of the law: sovereign force has the form of a state of exception in which fact
and law are indistinguishable yet must, nevertheless decided on.
1.6.4 Law has no existence in itself, but rather has its being in the very life of man

1.7 If the exception is the structure of sovereignty, then sovereignty is not an exclusively political
concept, an exclusively juridical category, a power external to law (Schmitt), or the supreme rule
of the juridical order (Hans Kelsen): sovereignty is the originary structure in which law refers to
life and includes it in itself by suspending it.
1.8 We shall try to understand the structure of the exception which is the structure of the ban, so
that we can eventually call it into question.

‘NOMOS BASILEUS’

2.1 The sovereign is the point of indistinction between violence and law, the threshold on which
violence passes in law and law passes over into violence.
2.1.1 Pindar: Nomos is the power that achieves the paradoxical union of violence and justice.
2.1.2 Solon: “with the force of ‘nomos’I have connected violence and justice.
2.1.3 Hesiod: the nomos is still the power that divides violence from law.

2.2 For Plato, the power of law is defined as being in accordance with nature and essentially non-
violent.

2.3 Sophistic polemic against nomos in favor of nature can be considered the necessary premise
of the opposition between the state of nature and the “commonwealth”.
2.3.1 Sophist: it justifies the rule of the strongest.
2.3.2 Hobbes: it justifies the sovereign.

2.4 The state of nature (sovereign) is the being-in-potentiality of the law, the law’s self-
presupposition as “natural law”.
2.5 State of nature could be understood.as a principle internal to the state, when it is revealed
in the moment in which the state is considered “as if it is were dissolve”.

2.6 The link between localization and ordering constitutive of the nomos of the earth always
implies a zone that is excluded from law and that takes the shape of a “free and juridically
empty space” in which the sovereign power no longer knows the limits fixed by the nomos
as the territorial order.

2.7 The process that Schmitt described and that we are still living became apparent in the First
World war, with the breakdown of European international relations:
2.7.1 Insofar as the nomos is the sovereign, it is connected to both the state of nature and the
state of exception.
2.7.2 The state of exception is not external to the nomos, but internal to it in a fundamental way.
2.7.3 When sovereign dissolves, it does not revert to state of nature but enter a state of exception.
2.7.4 The state of exception is unlocalize in a particular spatiotemporal sphere, but became zone of
indistinction between violence and justice that inhabits every law.