Zizek is also quite fond of this Brechtian passage, citing it in Sublime Object of Ideology and other texts, and elaborating its implications in perhaps greatest detail in For They Know Not What They Do, where he argues, with reference to Blaise Pascal, that

“At the beginning” of the law, there is a certain “outlaw,” a certain Real of violence which coincides with the act itself of the establishment of the reign of law: the ultimate truth about the reign of law is that of an usurpation, and all classical politico-philosophical thought rests on the disavowal of this violent act of foundation. The illegitimate violence by which law sustains itself must be concealed at any price, because this concealment is the positive condition of the functioning of law: it functions in so far as its subjects are deceived, in so far as they experience the authority of law as “authentic and eternal” and overlook “the truth about the usurpation.”

“Law,” under this reading, is not only constitutionally predicated on its very antithesis (“illegitimate violence”), but furthermore that same legal order relies on a process of collective repression and disavowal of these origins for its very legitimacy. As Zizek argues (with reference to Kant) later in the same discussion, “The absolute, self-referential crime which assumes the form of its opposite describes the very genesis of Law which is “forgotten” (repressed) the moment the reign of law is established.”

This ethical standoff in Inside Man between the bank chairman with a Nazi past and the possibly progressive bank robber (not to mention the police negotiator who is himself under suspicion of embezzling money, and the mysterious power broker who may or may not be willing to sell her soul to the highest bidder), in turn, brings us to the case of political theorist Carl Schmitt (the subject of a virtual symposium at Long Sunday this week).

Like the Inside Man’s bank chairman Arthur Case, Carl Schmitt has a legacy of Nazi complicity, having joined the Nazi party in 1933 (the same year he became professor at the university of Berlin) and retaining both his professorship and his party membership until the end of the war. Schmitt never formally disavowed his Nazi sympathies, and his Nazi past has continued to provide the lens through which many perceive his work—although, ironically, as Craig more observes in his useful introduction, “Schmitt, in English at least, has largely been a phenomenon of the left.”

What interests me here is the trajectory from Schmitt’s theorization of the notion of a “state of exception” in the early 1920s, to his later elaboration of a concept of the “partisan” in the early 1960s. The early Schmitt describes favorably the concept of a juridical “state of exception,” which is to say the ability of an executive power to suspend indefinitely the existing legal order (as, for instance, in the event of a national emergency). The later Schmitt, meanwhile, was attracted to the notion of the partisan—essentially guerrilla forces fighting an illegitimate occupation of their homeland. Both of these concepts point to a liminal zone between the rule of law, on the one hand, and its deliberate opposition or subversion, on the other.

In the aptly-titled State of Exception, Giorgio Agamben notes that the “theory of a state of exception” made “a first, isolated appearance” in Schmitt’s Dictatorship (1921), and was then elaborated in more detail in his Political Theology from the following year, where Schmitt defines the sovereign as “he who decides on the state of exception.” Schmitt wrote these two texts immediately following World War I which, Agamben notes, “coincided with a permanent state of exception in the majority of the warring countries.” More specifically, Schmitt was writing in the shadow of the recently established (in 1919) Weimar Constitution, which granted the president the ability to declare a “state of exception.” The most (in)famous invocation of this legal clause, of course, came a decade later when Hitler, upon taking power, immediately proceeded to suspend the articles of the Weimar Constitution concerning personal liberties, a suspension which he never lifted. In spite of this rather dubious pedigree, Agamben nevertheless stresses that this codified possibility of a state of exception is not an anarchic antithesis to the legal juridical order, but rather occupies a crucial liminal zone between legality and anarchy:

In truth, the state of exception is neither external nor internal to the juridical order, and the problem of defining it concerns precisely a threshold, or a zone of indifference, where inside and outside do not exclude each other but rather blur with one another. The suspension of the norm does not mean its abolition, and the zone of anomie that is establishes is not (or at least claims not to be) unrelated to the juridical order [translation slightly modified].

Schmitt returns to this question of the relationship between legitimate power and a sort of codified illegitimacy more than forty years later in “The Theory of the Partisan.” In this essay, Schmitt develops the notion of the “partisan,” or guerrilla fighter, for which he specifies four key characteristics: that they be a) “irregular fighters” possessed of b) “increased mobility” in active combat,” combined with c)  “intense political commitment” and d) a “tellurian” attachment to “a patch of earth to which [they have] an autochthonic relation.” Schmitt notes that the existence of these sorts of fighters presents a conundrum for well-meaning international codes such as the Geneva Conventions. International law has different rules for how soldiers and civilians should be treated in combat, but partisans subvert these very distinctions, being “irregular” fighters who carry arms while often disguised as civilians.

Schmitt’s notions of a “state of exception” and of “the partisan” can, therefore, be seen as mirror images of each other, in the sense that they both involve a deliberate suspension of established juridical norms—with the former relating to the super-empowered sovereign, and the latter to the disempowered subaltern. In “Theory of the Partisan,” Schmitt flirts with the possibility of bringing these two concepts into dialogue with each other when he notes that Rolf Schroers, in his Der Partisan (published in 1961, the year before Schmitt’s own “partisan” lectures) “makes the illegal resistance fighter and underground activist the prototype of the partisan.” Schmitt, however, turns out to be critical of this move, noting that Schroers is inspired here by the “particular intra-German situations of the Hitler period,” but is quite critical of this “reinterpretation”:

Irregularity is substituted with illegality, and military battle by resistance. As I see it, this involves a fundamental re-interpretation of the partisan of the national wars of independence, which misunderstands that even the revolutionizing of war does not disrupt the military connection between regular army and irregular fighters.

I must admit I do not quite grasp the distinction which Schmitt is drawing here, and cannot help but wonder whether Schmitt’s abrupt critique of the “illegality” of Schroers’ anti-Nazi resistance fighter (after all, isn’t the concept of the partisan itself explicitly grounded on a blurring or suspension of operative legal frameworks), and his resulting reluctance to grant them the status of true “partisans,” is not perhaps a symptom of Schmitt’s own residual Nazi sympathies?

A more immediate example of the interconnections between a sovereign “state of exception” and a subaltern “partisan” can be seen in the “military order” issued by Bush on November 13, 2001, authorizing the “indefinite detention” of noncitizens suspected of being involved in terrorist activities. This order is significant because it granted the executive branch essentially unlimited powers to detain suspected terrorists while accoording them none of the rights which would otherwise have had had they been either citizens, foreign nationals, enemy soldiers, etc. They are granted no official legal remedy, no chance to challenge the accusations against them, and, in many cases, they have yet to be charged with a crime.

Schmitt, of course, might argue that these “enemy combatants” are not true partisans in his specific use of the term, (among other reasons, because they are not “tellurian” in their goals), the significance of this distinction nevertheless blurs when we consider the case, for instance, of the 22 Chinese Uygurs who were swept up in Afghanistan following 9/11 and have been held without formal charges in Guantánamo Bay ever since. Part of the difficulty is that the US, apparently, cleared them for release some time ago, but is neither willing to allow them to settle in the US, nor is willing to return them to China--on the grounds that there they would be viewed as partisans (in the precise Schmittian sense) of the Uygur’s long-standing struggle for independence, and possibly “tortured or executed.” Viewed as “enemy combatants” by the US government, the Uygurs continue to be held without charges under a post-9/11 “state of exception” prerogative precisely because the US fears that the will be persecuted as actual “partisans” should they be returned to China.

Schmitt’s “Theory of the Partisan” was first presented in two lectures in Spain in 1962, which were then published by the University of Saragossa at the end of 1962, and in Germany in 1963 (coinciding with the republication of his Concept of the Political from 1932). The second edition of “Theory of the Partisan” (and the basis of the Telos translation), meanwhile, came out in 1975, and coincided with two events which cast an interesting light on the trajectory from Schmitt’s theoretization  of a “state of exception,” to his later interest in a “theory of the partisan.”

First, in Spain (where Schmitt delivered the original “partisan” lectures) Francisco Franco passed away in November of 1975, after having led Spain in a dictatorial “state of exception” lasting nearly half a century. Meanwhile, in China, Chairman Mao Zedong (who would pass away in September of 1976, less than 10 months after Franco) was simultaneously initiating a national movement to “criticize” the Ming dynasty novel The Water Margin 水浒传.This novel, together with the circumstances of the 1975 campaign, in turn, are quite relevant to this question of the relationship between dictatorial power, on the one hand, and partisan resistance, on the other.

The Water Margin is a tale of 108 bandits at the end of the Northern Song (13th century), most of whom have been exiled from their communities on account of their crimes or alleged crimes, and  who congregate together into an informal bandit community in the Liangshan marsh region. Originally located on the margins of society, and bound by no law other than loyalty to each other, they eventually, (in one of the versions of the novel) figuratively redeem themselves by allying with the emperor and helping to quash an invasion from the North.

It is well-known that the early Mao was quite fond of The Water Margin, presumably both on account of its narrative appeal, but also because it provided an useful model for communist Red Army during the first couple of decades following its founding in 1927--during time it was essentially an illegal, underground organization reliant on guerrilla tactics. By the late-1960s, however, Mao’s Cultural Revolution (1966-76) had already spiraled out of control, with the youthful Red Guards (deputized by Mao to “destroy the four olds,” seek out Rightists, and generally carry on the revolution) becoming increasingly unmanageable. By 1969 the bulk of the unrest had been quelled, with many of the Red Guards being sent to down to the country-side. The Cultural Revolution, nevertheless, officially continued for another seven years (until 1976), and one of Mao's concerns in 1975 was how the legacy of the Red Guards would be perceived--whether they would be regarded (not entirely unreasonably) as insurrectionists against the Maoist government itself, rather than as simply its loyal deputies. The irony here, of course, is that Mao initially came to power riding on a archetypal partisan insurrection (Schmitt states that we “find the name of Mao Zedong” at the beginning of “an essentially new stage of partisanship”), proceeded to assume essentially dictatorial power through a de facto “state of exception,” mobilized the Red Guards in the mid 1960s in an attempt to reassert his own hold on power, and then was forced to reevaluate his own earlier model of partisan insurrection found in The Water Margin when the Red guards proved to be too insurrectionary.

I will conclude these remarks by returning to the trope of bank robbery with which I began. Jodi, in response to a comment from Nate on issues of self-interest in Schmitt’s notion of the partisan, remarks  that “defending the homeland, say, is not the same as robbing a bank.” “However,” Jodi continues, “one might imagine robbing the bank as a way to get the funds to defend the homeland or as a way to undercut the occupation, but here again the bank robbery is not motivated by narrow self interest.” That may be the case, but what if the motivation for the robbery (as is possibly the case in Inside Man) is precisely to foreground and problematize the dynamics of self-interest at work under the original founding of the bank? What if, that is to say, the robbery is miming an act of self-interest, while in fact attempting to accomplish its precise opposite?