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Ukraine and the Location of Effective Sovereign Power

 

The protests and regime change in Ukraine have clearly captured the global imagination. Although the protests themselves had continued for quite some time, the brutal failed crackdown and sudden fall of President Yanukovich have thrust Ukraine into the spotlight. This post is intended to give a political theorist’s account of what the events can tell us about the nature of politics.

Indeed, the Ukrainian crisis deserves an interpretation through the perspective of the German legal and political theorist Carl Schmitt. Admittedly, one should be careful in employing Schmitt, who had aligned himself with the Nazis, in an analysis of the Ukrainian protests, given the fact that the protesters themselves have been accused of fascism by their opponents. However, the choice of Schmitt is purely methodological and not an inference of anybody’s ideological position.

Crucially, for Schmitt the sovereign is whoever decides on the exception, and it is the exception that constitutes the very relevance of sovereignty because it is a point in which reality breaks through the crust of repetition. The exception suspends the pre-existing order in a moment of tension, from which the political situation can develop in either way: the old order can be restored or a new order can be created. The crucial question is, then, who has decided on the exception in a particular case: the protesters, any other societal group, or the state apparatus. In essence, illegality, when it becomes sustained and extreme, can convert itself into a new standard of legality, but if it fails to establish itself, it may only remain outside of the law. Unavoidably, at the end there is a decision that ‘normalises’ the situation, once again subsuming it under the legal and symbolic order, which shapes the everyday life in a political community. Violence thus becomes law-making in either case: positively, by being able to decide on and mould the new legal and symbolic order or negatively, by being included as a new negation – something which only serves to legitimise the prevailing status quo as an illustration of the dangerous and anarchic.

From what has already been described, it follows that sovereign power, rather than being an objective given, can only be attributed retrospectively: whoever succeeds in effectively deciding on the exception, is sovereign (for a more detailed discussion in a different context, see the author’s contribution to this article). In fact, the person or body that is successful has always already been sovereign: the ability to decide effectively only serves as a proof of a pre-existing quality (or at least has to be presented as such). This is why Schmitt writes that exception in politics is what a miracle is in theology: they both work as an extraordinary proof of ultimate power over the normal order (political or natural). Despite the lip service to ‘sovereignty of the people’, prevalent in many modern constitutions, the actual location of sovereignty is only determinable in such moments of crisis as in Ukraine.

Ukraine clearly illustrates the point. Had the crackdown against the protesters succeeded and the previous order been restored, resistance to President Yanukovich and his policies would have been outlawed. Protesters would have become terrorists, fascists, and political opportunists – more generally, criminals against whom the full force of the state’s criminal justice apparatus must be unleashed. The President and his government would have become protectors of stability, law, and order, i.e. the sovereign power. They would have always been sovereign because they would have protected the order and their power from an unlawful challenge. If the compromise deal brokered by three European foreign ministers had been implemented, both sides would have preserved their legitimacy and factual sovereignty would have been dispersed between the conflicting powers. However, the actual turn of events represents a complete break with the past and a complete change in the acknowledged location of sovereign power. Now the opposition and, especially, the protest movement are the holders of supreme power, while the former government officials have become (and, as is now seen, have always already been) mere usurpers and criminals. It is now upon them and not upon the protesters that the sword of justice has to be wielded. Furthermore, the opposition and the protesters have always already been sovereign because they have merely recaptured their power from a corrupt government, which had neglected the supreme will of the people and has thus delegitimized itself. Therefore, it is more than evident that, in a truly Schmittian fashion, whoever wins the political struggle, by doing so wins legitimacy and confirms their sovereign quality. Any talk of necessary preconditions or first principles is superfluous to say the least.

And still, there is one further point to be taken from Schmitt. A recent piece from the BBC has linked the need for the new Ukrainian government to be approved by protesters to the ancient Roman practice of acclamation. While this might be correct, Schmitt’s own writings constitute a more recent employment of this concept. Schmitt sees a clear contradiction between the collective vote – acclamation – of a democratic public and the secret ballot of the liberal practice, the latter being individual and private rather than political. Of course, secret ballot, as a procedure, must be defended from Schmitt’s critique. However, a kernel of acclamation – what one could call ‘trust’ or ‘public opinion’ – always is a necessary element of politics, and acclamation in Ukraine is only a radicalisation of that. It is not true that Schmitt reduces the role of the people by ascribing acclamation as the most immediate expression of the will of the people and that he envisages a state of consumers, as opposed to citizens. Rather, acclamation – an acceptance or rejection – supported by the potential for exception is a necessary attribute of a claim to sovereignty. Indeed, in acclamation the people is manifest as the constituent power and, ultimately, as the highest sovereign authority. Acclamation is, then, an attribute of active citizenship (either directly or, for example, by partaking in ‘civil society’), even if it is not necessarily regularly exercised – the situation in Ukraine only illustrates the potential, which can take centre stage in extreme situations. As Aristotle would say, just as a musician retains the potentiality to play even when not playing or an architect retains a potentiality to build even when not building, potentiality remains even when it is not turned into actuality. In the same way, the power of the political community to take decisive action – its potentiality to make an existential (sovereign) decision – remains even when it supposedly lurks in the background, i.e. in ‘normal’ political situations. As always, the crucial question is ‘who decides’ and acclamation is a way of decision making, characteristic to a political community, which has just successfully upheld its claim to sovereignty.

Of course, the situation in Ukraine is yet to be fully resolved. This applies both to the determination of the country’s political landscape and threats to its territorial integrity. However, there are important lessons that not only practitioners but also theorists can learn from the country’s political crisis.

 

Ignas Kalpokas

 

Published inConflict & SecurityUncategorized

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