Bonnie Honig's Emergency Politics is a critique of two prominent approaches to political and legal theory. The first approach is that of deliberative democratic theory elaborated by Jürgen Habermas and amplified by Seyla Benhabib, which argues that democratic politics must conform to certain moral principles to be legitimate, such as legal procedures and universal norms. The second approach is that of Giorgio Agamben's influential formalization of sovereignty that draws from the work of the Nazi jurist Carl Schmitt to highlight the dangers of sovereign decisionism (Reference Hussain and PtacekHussain & Ptacek 2000).
Emergency Politics uses paradoxes posed by Jean-Jacques Rousseau as its conceptual apparatus. Rousseau distinguishes the general will, which is always right, from the will of all, which can err. What does it mean for democracy that the people might fail to see the general will? Additionally, to found a new republic, the effect would have to be the cause since “men would have to have already become before the advent of law that which they become as a result of law” (Reference RousseauRousseau 1968: 87). Likewise, what if Rousseau's lawgiver is a charlatan? How do we decide? For Honig, these Rousseauean paradoxes are not limited to democracy's origins. Rather, she reads Rousseau diagnostically to conceive these dilemmas as ineluctable. There is no solution that transcends politics and guarantees the rightness or democratic orientation to the practices of democracy. There is “no getting away from the need in a democracy for the people to decide” (p. 23). Honig refers to this pervasive challenge as the “paradox of politics” (p. xvi).
Honig finds that Habermas fails to solve this paradox by either referring to particular revolutionary events like the assemblies of Philadelphia and Paris (violating the norm of universality through the embedded particularities of these political events) or by relying on a retrospective judgment of constitutional practices (such that the act of judgment remains within the frame produced by that which is judged: pp. 34–38). Benhabib resorts to a moral standpoint or the rule of law as a way to judge and regulate the decisions of the people. This proposed “solution,” however, presumes that law and people are independent of each other. Much law and society scholarship has demonstrated the mutually constitutive relation between “law” and “society.” Law is constitutive of interests, property, and social identities (Reference PassavantPassavant 2002). Socioeconomic forces determine law's forms (Reference HorwitzHorwitz 1977). In an argument that is homologous to this scholarship, though not drawing from it, Honig finds Benhabib's proposed solution fails since law and the people are products of each other—there is no independent standpoint from which to judge the people (or the law).
Honig critiques the concept of an all-powerful sovereign in Schmitt and Agamben by drawing from the Jewish theologian Franz Rosenzweig. Schmitt likens the sovereign's decision to a “miracle,” and presumes such an intervention to be unambiguous. Rosenzweig, however, emphasizes that the people must be prepared to receive the miracle—they must be so oriented that they are receptive to it already. In this way, “sovereignty,” in fact, does not so much determine the fate of peoples as the people determine sovereignty. There is no escaping the need for the people to decide (chapter 4). Here I wish Honig had gone further. If the people must be prepared to receive the decision, if the “decision” is already happening in anticipation of its announcement, then is “emergency” conceptually useful for parsing contemporary law and politics?
Law is often, incorrectly, opposed to sovereign or administrative decisions (Reference ButlerButler 2004). Honig returns to U.S. Assistant Secretary of Labor Louis Post's interpretations of legal procedures that blunted many of young J. Edgar Hoover's efforts to deport peremptorily immigrants for anarchist political beliefs during the first Red Scare. In so doing, she troubles the alleged dichotomy between law and administration by demonstrating Post's scrupulous attention to legal interpretation. Post decided to interpret legal procedures the way that he did. Often, the role of decision in legal practices is occluded with rhetorical flourishes stating that a legal decision anticipated legal developments as if law was “discovered” rather than created. At the moment of decision, nothing could be known of a future that has yet to occur, and the political battles that need to be won in order to secure the future from which the decision could be rendered as “legal” (chapter 3). Law and administration, law and politics, are mutually intertwined.
Those familiar with law and society scholarship will be interested in Honig's arguments. They will not, though, be as surprised as some political theorists may be at the observation that law and administration are not strangers, and that the rule of law ultimately rests on the rule of man. In sum, law and politics are inescapably imbricated within each other. Nevertheless, scholars of law and society will benefit from Emergency Politics because Honig presents the normative implications of the paradox of politics—the mutually constitutive relation between law and society and law and politics—for democratic theory and practice.
