States of War

David William Bates

STATES OF WAR

Enlightenment Origins of the Political

Columbia University Press

Publishers Since 1893

New York Chichester, West Sussex

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Copyright © 2012 Columbia University Press

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E-ISBN: 978-0-281-52866-5

Library of Congress Cataloging-in-Publication Data

Bates, David William.

States of war : Enlightenment origins of the political / David William Bates.

       p. cm. — (Columbia studies in political thought/political history)

Includes bibliographical references and index.

ISBN 978-0-231-15804-6 (cloth : alk. paper) — ISBN 978-0-231-15805-3 (pbk. : alk. paper) — ISBN 978-0-231-52866-5 (e-book)

1. State, The—History—18th century. 2. Sovereignty—History—18th century. 3. Natural law—History—18th century. 4. War (International law)—History—18th century. 5. Enlightenment. I. Title.

JC171.B38 2012

    320.109′033—dc22                                                 2011008695

A Columbia University Press E-book.

CUP would be pleased to hear about your reading experience with this e-book at cup-ebook@columbia.edu.

References to Internet Web sites (URLs) were accurate at the time of writing. Neither the author nor Columbia University Press is responsible for URLs that may have expired or changed since the manuscript was prepared.

To the memory of my father,

      George William Bates

      (1930–2009)

Contents

Foreword by Dick Howard

Preface

INTRODUCTION

Constitutional Violence and Enlightenment Thought

Why Enlightenment? On Law and the Origins of the Political

The Concept of the Political and the Constitutional State

CHAPTER 1

The Autonomous State and the Origin of the Political

States of Law

The Instrumental State

Reason of State and the Origins of Legitimacy

CHAPTER 2

States of Reasoning: Modern Natural-Law Theory

Disembodied Reason and the Nature of Sovereignty in Grotius

Hobbes’s Political Robotics

Pufendorf’s Concept of the Social

CHAPTER 3

Locke’s Natural History of the Political

Why Prerogative?

Sovereign Decision and the State of Law

Nature, War, and the Nature of War

A Natural History of the Political

Law in the Postpolitical Age

A Political-Legal State

A Political Community

CHAPTER 4

Systems of Sovereignty in Montesquieu

Two Montesquieus

The State of War

The Political After War: Systems of Order

States in War

Exceptional States

Technologies of Balance

CHAPTER 5

Rousseau’s Cybernetic Political Body

Rousseau and the Political

The End of Natural Law

Humans In (and Out of) Nature

Political Cybernetics

Political Bodies at War

Rousseau and the Modern State

CONCLUSION

From the Concept of the Political to the Rule of Law

Notes

Index

Foreword

Dick Howard, Series Editor

THE QUESTION that motivates David Bates’s reconsideration of Enlightenment origins of the political is found in actual dilemmas facing contemporary political practice and its theory. His analysis concludes with a brief demonstration of how this historical reconstruction can offer more convincing answers to these questions than those proposed by Carl Schmitt and his heirs, including contemporaries such as Jacques Derrida, Étienne Balibar, Jacques Rancière, or Jean-Luc Nancy. Between these contemporary bookends, Bates proposes a conceptual rereading of some of the landmarks of Enlightenment thought that is grounded in an understanding of how historical context affects theories that seek to explain it. Bates’s title refers not to some mythical historical construct called the Enlightenment; his argument is more perspicacious and nuanced. For this reason, too, it fits well the framework of this series, Political Thought/Political History. Questions posed in our present illuminate the past, which in turn both casts light and demarcates shadows that were not perceived by practical-minded political actors.

This same structure of reciprocal influence can be seen in the progress from chapter to chapter and even from subsection to subsection. Bates’s historical claim is that the political emerges in a specific historical conjuncture, but it doesn’t emerge full blown, like a racehorse wearing its own theoretical colors, so to speak. This is the burden of his first chapter, which sets the practical and theoretical stage on which an autonomous state first appears and then gropes for the source of its legitimacy by defining the political. The guiding thread of the book can be put in terms familiar to a modern reader: What is the relationship between the sovereignty of the state and the laws that effectively (or in principle) restrain the potential arbitrariness of sovereign power, particularly when the state faces problems that appear to threaten its very existence? This existential dilemma, which emerges precisely when and where the law is no longer effective, leads Carl Schmitt and even his critical followers to define the political as control over the state of exception. David Bates does not shy away from the dilemma or fudge the difficulties that it entails; he proposes to rethink its origins and thus to radicalize its weight.

The fine examples of close textual reading offered by the four chapters that constitute the heart of the book propose a historical-conceptual progression through which the concept of the political (and its relation to law) is enlarged and developed. This brief foreword cannot do justice, for example, to Bates’s lucid account of the differences among the earlier theories of Hugo Grotius, Thomas Hobbes, and Samuel von Pufendorf and the way in which the latter provides the (social) grounds on which John Locke will inscribe his own vision of the parameters of the political (as opposed to the idea that the English Whig was replying to Hobbesian absolutism). A foreword can only call attention, for example, to the way Locke, and then Montesquieu, are read against themselves to provide new understandings of the questions that underlie their own theories. The reader will discover this, and more, soon enough.

A final point should be mentioned concerning the place of this study of enlightenment origins of the political within the framework of the series Political Thought/Political History. Bates denies that the concept of an autonomous political sphere is . . . a transhistorical category. He insists that it emerges at a very specific juncture in European history, which was conceptually established in the wake of [the 1648 Peace of ] Westphalia. It is important to read this claim clearly; the autonomous political sphere to which Bates refers can be seen as one explicitly modern definition of the political. For this reason, Bates’s claim does not contradict the broader theses proposed in my historical study The Primacy of the Political (2010). Indeed, Bates’s interpretation of what he considers to be the fully developed concept of the political, which he finds in Jean-Jacques Rousseau, suggests that a fully autonomous political sphere is compatible with the rule of law. This interpretation is similar to what I call a republican democracy—that is, an institutional structure in which the republican form of the political ensures and secures a framework within which the active web of social relations (similar to Bates’s idea of the rule of law) can acquire a democratic form. In this way, Bates’s Rousseau, as well as my republican democracy, reject the inchoate populist version of democracy whose condemnation by Schmitt serves him, and those whom his apparent rigor has seduced, into a misleading definition of the political.¹

NOTE

1.   With regard to Schmitt, see Paul W. Kahn, Political Theology: Four New Chapters on the Concept of Sovereignty (2010), which appeared in Political Thought/Political History. In the same series, see Claude Lefort, Complications: Communism and the Dilemmas of Democracy (2007).

Preface

I FIRST STARTED reading Carl Schmitt seriously when I was a graduate student at the University of Chicago. My friend Steven Wolfe had urged me to attend a series of evening seminars led by Ellen Kennedy, who was visiting at the time, so I prepared by immersing myself in Schmitt’s Political Theology, The Crisis of Parliamentary Democracy, and Concept of the Political. At the time, I was starting my first serious work on the French Enlightenment and the French Revolution. What struck me as I read Schmitt was just how wrong he was about the eighteenth century. But at the same time, I was overwhelmed by his powerful insights into the nature of political identity. As I read more Schmitt and some of the intellectuals influenced by him, such as Reinhart Koselleck (who was a visiting professor at Chicago while I was there in the late eighties), I began to see more and more clearly how eighteenth-century thinkers in France were concerned with just the problems Schmitt zeroed in on in his Weimar writing—namely, decision, emergency, political unity, enmity, constitutional foundations, and so on, although this was not the way most theoretical figures viewed the Enlightenment. In the end, I used the conceptual resources offered by Schmitt and other twentieth-century thinkers as a way of exploring the Enlightenment intellectual culture they often disdained.

As I became more interested in understanding the ideas Schmitt was working with, I began to research more systematically legal and political theory in the early twentieth century. In particular, I was interested in the theological structure of legal concepts of the state in interwar Europe. I originally planned to see how eighteenth-century constitutional concepts might have been used by legal scholars between the wars. But, eventually, I worked more on the nature of political unity and its relationship with existential crisis. Here I saw just how historically specific Schmitt’s influential concept of the political was. And I also discovered how unexceptional Schmitt’s theories were when they were contextualized in this moment—legal theorists in France, Germany, and elsewhere were all struggling with just the same difficulty. How could one defend political unity and decisive authority when all metaphysical and sociological foundations of national identity were being radically questioned? The answer was this: the political was in essence the defense of unity itself, beyond any actual content or substantial identity. The justification of political decision beyond the law was based on a radically existential concept of security. Schmitt’s definition of the political as the decision on friend and enemy was consistent with the general effort at this time to defend some notion of political identity as essential to the survival of secure communities in an age of fracture, civil war, and transnational revolutionary movements.

I was right in the middle of this research when September 11 intervened and the landscape of political discourse and political theory was dramatically changed. If interest in Schmitt had been in the ascendancy since the nineties, his books and ideas were quickly propelled to the forefront of political theory in the academy after September 11, when there was a sudden resurgence of debates around executive power, war, and emergency law that were prominent in interwar Europe. Of course, those more familiar with Schmitt’s long and varied career turned at this point not to the already famous Weimar-era works on sovereignty and emergency power (however relevant those works still were to the increasingly anxious discussions about executive power) but instead to his later, postwar work on international law. This was the crucial book Nomos of the Earth (1950) and its short follow-up work, Theory of the Partisan. In these texts, the history of the state (as a legal and constitutional form) was reintegrated into a larger narrative of European war and expansion. The state and the question of sovereignty was now understood by Schmitt to be just a part of the global story of how autonomous European states were born within a broader system of interstate relations, on the Continent primarily, but also in the larger arena that was the sphere of colonial competition.

The juxtaposition after September 11 of two absolutely vital discourses (one concerning the nature of state authority and the law, the other the relationship of states within globalized networks of organization) was an uneasy one, and it was not at all obvious how to think about classical political theory questions in light of disruptive new historical forces and unprecedented global configurations. This was the origin of my own project to return to Enlightenment political ideas. It seemed to me that the question of law and the question of political power were somewhat confused in the complex context of a new global form of warfare. How were we to think about traditional political concepts, such as constitutionality, executive authority, emergency powers, and so on, now that we recognized the intimate relationship between the formation of these state structures and what Schmitt would call the large-space political units in a globalized world? Schmitt himself hardly had the answer for us—his own work was limited, inevitably, given its crucial historical orientation, to the analysis of Cold War formations and their implications for the conduct of war.

After 1989, of course, the traditional nation-state form became much more important, or at least became more visible, as these Cold War units disappeared or were transformed. Given the new importance of foundational questions concerning political-state organization in this environment, my goal was to reexamine the long intellectual history of the legal state by returning to the Enlightenment, its acknowledged birthplace—but not simply to revisit the classic principles of the legal state, which have been articulated so thoroughly by generations of scholars and thinkers. Rather, I wanted to see how the problem of war and foundational violence was connected to this ideal of the legal state at a deeper level. In other words, I wanted to interpret Enlightenment concepts of legality and legitimacy through the lens of war. The point was not to fall into the trap of historicism and not to resurrect a lost intellectual world as though it could resolve the challenges we now face as we attempt to grasp, conceptually, the contemporary political order. My main goal was to defamiliarize the Enlightenment, the origin of so many of our constitutional ideas, so as to point the way to a new understanding of the legal state in its global context. I wanted to show that any attempt to imagine the rights of citizens and the constitutional structure of the legal state is impossible without a parallel investigation of the nature of foundational violence and the practice of interstate warfare. Enlightenment intellectuals (despite their reputation) were very much aware of this. I hope that a close analysis of their own struggle to understand political order and legal norms will encourage us to do the same—and I think that eighteenth-century thinkers were pointing out some promising paths.

I am indebted to the many interlocutors who have helped me sharpen my arguments over the past few years. First, I thank the audiences at McGill University Faculty of Law in Montreal, the Political Theory Colloquium at the University of Minnesota, the French Culture Workshop at Stanford University, the Bloomington Eighteenth-Century Studies Workshop at Indiana University, the University of California Berkeley Early Modern Sodality Group, and various conference panels for their comments on early versions of these ideas. Interactions with scholars of twentieth-century thought were extremely useful for framing the argument; in particular, I am grateful to Stefan Ludwig-Hoffmann, Sam Moyn, Wim Weymans, Stewart Motha, Knox Peden, Bill Rasch, Bill Scheuerman, John McCormick, and Michael Geyer. I was also lucky to cross paths with many early-modern scholars who had great intellectual breadth. I’ve learned a great deal from reading and conversing with David Armitage, J. B. Shank, Céline Spector, David Bell, Dorothea von Mücke, Joanna Stalnaker, Dror Wahrman, Harvey Mitchell, Sophie Rosenfeld, Peter Stacey, and Annelien De Dijn, among many others. I also very much appreciated the enthusiasm and patience of graduate students in my various seminars on political thought.

For making Stanford seem like a second home, I am grateful to the Enlightenment circle of Keith Baker, Jessica Riskin, John Bender, and Dan Edelstein, all of whom have generously responded to my work and shared their own. In the crucial late stages of writing, James Martel selflessly read with great care several draft chapters and gave me a new perspective on the whole project. I owe a special debt to all those at Berkeley who have helped create a vital intellectual life. My thanks to Michael Mascuch, Hans Sluga, Alan Tansman, Ken Goldberg, Martin Jay, Carla Hesse, Samera Esmeir, and Nima Bassiri for making me think in new ways. And a special acknowledgment to my early-modern colleagues Kinch Hoekstra, Ethan Shagan, and Jonathan Sheehan, whose formidable intelligence and expertise always inspires me. Finally, Vicky Kahn made the book a reality, with her relentless encouragement, incisive criticism, and intellectual generosity.

Finding the time to write this book was not easy. I relied (too much, I am sure) on my family and friends for support. Without my mother and late father, my sisters and their families, and my in-laws, life would have been significantly more difficult and infinitely less enjoyable. My greatest debts are to my children, Heather and Graeme, for making life so rewarding (and so much more interesting), and to Ann, who has offered me so much for so long that it is really impossible to thank her properly.

Finally, I dedicate this book to the memory of my father, who, it seems fair to say, first taught me how to think.

States of War

INTRODUCTION

Constitutional Violence and Enlightenment Thought

THE CRISES of the early twenty-first century have revealed once again a perennial conflict at the heart of the modern constitutional state. The demands of war, in particular, but also terror, civil conflict, and even economic catastrophe all have put a great deal of pressure on the theory and practice of constitutional states because they throw into relief the inherent tension between legal concepts of state power and more existential visions of political authority. This is not merely a question of constitutional theory. Given that the normative conceptions underlying constitutional ideas of legitimate authority also ground our deep commitments to civic and human rights, the radical autonomy that marks any existentially derived political power cannot help but be seen as a potential threat to our legal protections. At the same time, there must always be some recognition that legal norms cannot enforce themselves. Behind every constitutional order lie powerful assumptions about the sovereign authority that constitutes that order in the first place.

Of course, from the start—during the French Revolution, for example—constitutional regimes have provided legally defined spaces for the exercise of emergency power, an attempt to fold the most extreme forms of political action back into the constitutional order as a whole.¹ However, throughout the history of modern constitutional regimes, new challenges and obstacles, and especially new forms of warfare, have overwhelmed the available instruments of emergency rule and forced the creation of new crisis institutions that displace and even oppose foundational rights and constitutional provisions. In extreme conditions, and especially when the very existence of the constitutional state is threatened, decisive acts that preserve the existence of communities are acknowledged to be purely political, in that they exceed any formal, legal frames of limitation. Legitimation of these acts looks not so much to law but to foundational concepts of political unity, concepts that are often troubling because they invoke nationalist or even theological notions of identity. So whether we celebrate the primacy of the political, as Carl Schmitt did in his influential book on this question,² or melodramatically lament the gradual ebbing of law in a permanent state of exception,³ or even claim that the very realization of law is always impossible because of the necessity of employing some anomic force,⁴ there is no question that both philosophically and practically speaking, the relationship between law and the political remains profoundly difficult to understand. The intersection of pure political power and constitutional forms of legal limitation needs to be continually reexamined because the clash between legal and political visions of the state has never been fully resolved.⁵ We have experienced this recently in acute form, in debates over the use of torture, for example, and in the struggle to delineate the proper relationship between a state’s existential interests and the obligations of international law. Not surprisingly, there has since September 11 been an immense flow of scholarship concerned with the theoretical and institutional difficulty of managing what Justice David Souter has called the constant tension between security and liberty.⁶

While much of this work on emergency and war powers draws on the history of political and constitutional theory, for the most part, the theorization of the relation between political and legal authority continually repeats the structural distinction between the two spheres.⁷ My claim is that this conflict between law and the political has a specific historical origin and therefore needs to be examined in that context before we can begin to understand the risks and possibilities inherent in our contemporary moment of crisis. I argue that because this deep conflict has its origin in the Enlightenment—when the modern constitutional state was first conceived in an era of absolutist, centralizing sovereign rule—a return to the Enlightenment has the potential to clarify our own thinking about the problematic relationships that link security regimes with the foundational rule of law. I do not claim that the substantial ideas from this period are somehow still relevant in our own. We must historicize the concepts and values to understand them properly. However, what is significant about Enlightenment thought is its recognition of just this problem of historicity when thinking about law and especially natural rights. My goal is to show how that deep reflection on the historical specificity of human communities and cultures led to a new theory of right that was grounded not so much in the substantial forms of human existence but instead in the very contingency of that existence. These were not merely formal or logical claims in a sense abstracted from the concrete: the understanding of natural right flowed from the fact of human historicity itself.⁸

So there is no question that returning to the eighteenth century just to reaffirm a simplistic commitment to the rights of the individual in society and to call for legal limitations on the power of the security state would be rather naive in our present condition of crisis. However, it would be equally naive to assume that our own current political condition has no connection whatsoever to the historical origins of the constitutional principles that animate our own state institutions, however much they may have evolved and transformed over the past centuries. While constitutional principles of the legal state today are recognized to be derived from Enlightenment notions of the individual and his or her foundational rights, it is too often forgotten that an existential logic of the political was articulated as the territorial state evolved into a military-bureaucratic security regime in exactly this same period.

I am not reexamining this supposedly primal conflict lurking within these twin genealogies of the modern constitutional state, as though one could simply answer the question of which originary principle is the most significant for us today. Instead, I hope to understand the deep connection between these two visions of political community as a way of reimagining civic and human rights in the twenty-first century. Much contemporary theorization of the subject of rights—both within the state and within the larger networks of globalized international law—has dealt with the problem of negotiating the relationship between what are taken to be radically disjunctive spheres: on the one hand, an imagined democratic, egalitarian community governed by idealized norms and, on the other, historically specific, bounded political communities predicated on a systematic (and inherently violent) logic of inclusion and exclusion.⁹ This is the conflict between what Jürgen Habermas has called facts and norms.¹⁰ Contrary to the usual assumption, Enlightenment thought was not always so concerned with ideal, normative concepts. And it was not primarily concerned with the institution of some rational public sphere that would serve to coordinate the reality of politics and the ideal world of norms.¹¹ The Enlightenment was, I believe, concerned with this challenging problem: understanding how a historically specific political regime might generate from within its own existential logic a systematic set of norms grounding the legal protection of the citizen.

Much contemporary political theory recoils from the concept of sovereignty and all that it implies: unitary decisions, political unification and cohesion, ruptures of law.¹² Sovereignty is linked with some metaphysical or, better, theological conception of absolute identity and therefore rejected as incompatible with modern (and postmodern) notions of plurality and essential fragmentation. Following Jacques Derrida, sovereignty can only be understood as a kind of fantastic delusion, an impossible figure of self-enclosed indivisibility.¹³ But is sovereignty inevitably a form of political theology? That is, must sovereign power always be modeled on the self-identity of some law-giving divine power? As Schmitt himself argued, there will always be a congruence between theological and political concepts in any era. However, he identified the dominant theology of the Enlightenment as deism.¹⁴ This is a rather impoverished picture of the Enlightenment worldview. We must, for example, take seriously the presence of a theological Enlightenment metaphysics that is not merely mechanical in the Newtonian sense. Eighteenth-century thinkers were, as we now know, interested in how emergent systematic orders were generated from natural, material forms of existence. The question of the organismic unity of life and its reproduction was one of the central concerns of Enlightenment natural history.¹⁵ The unity of a democratic sovereign in the Enlightenment was therefore not necessarily a perversion of some older theocratic notion of the absolutist ruler (pace Claude Lefort), and it was not inevitably linked with imminent or pantheistic concepts of democracy that rely on the idea of the people as some genuine metaphysical reality. What is important about the Enlightenment conception of political sovereignty is its nonfoundational character. The unity of sovereignty that underwrites both political community and the legal rights of political citizens emerges as a logical construct from the reality of disorder and is not at all informed by theological understandings of some higher authority that legitimated itself and stands above institutional forms of order.

Therefore, before trying to understand the nature of rights and law in abstraction, the political as an existential category has to be articulated. And indeed, as I show, Enlightenment figures were not the first to tame the political with modern constitutional ideas, as we sometimes assume; they were the first to discover the very autonomy of the political, extricated from any substantial historical or metaphysical understanding. It was only then that they were able to deduce the legal implications of the logic governing this political sphere, thereby inventing a novel way of thinking about the political subject as a legal subject yet without ever sacrificing the existential legitimations of sovereign power inherent in the concept. Once we have traced this intellectual trajectory in Enlightenment thought, from the existential category of the political to the constitution of a legal state, we can ask whether these relationships between rights and sovereign authority are limited to the particular kind of state form as it emerged in the early-modern period—a centralized, administrative sovereign entity with strong roots in military organization. As I suggest, Enlightenment thought has a deeper legacy. It is possible, that is, to see how a much broader understanding of the political can be generated from these ideas—and with it a rather new perspective on the nature of rights and the rule of law beyond the traditional nation-state form.

WHY ENLIGHTENMENT? ON LAW AND THE ORIGINS OF THE POLITICAL

The Enlightenment is a powerful conceptual resource for our attempts to manage the volatile, fraught relationship between law and the political; this is not, as we might expect, because Enlightenment intellectuals were vocal critics of absolutism and ardent defenders of civic rights. Enlightenment thought is a useful space to rethink our own political tensions because it was during this moment that intellectuals were forced to frame the very question of law, and especially foundational constitutional law, in light of the emergence of the modern unitary state form. The Enlightenment reveals rather clearly this peculiarly modern difficulty of defending both communities and individuals within a legal frame. So my goal is not at all to mine the intellectual history of the Enlightenment for concepts that would underwrite either a political or legal vision of authority. That would simply repeat the critical impasse facing political and legal theorists today as we repeatedly oscillate between these two categories. Instead, I want to work through our contemporary challenge—dealing with the uncomfortable presence of an autonomous political logic that haunts the structures of the legal state and now the sphere of human rights—by returning to the eighteenth century only because that was when the problem of the interrelation of autonomous political power and foundational legal norms first appeared.

This might seem counterintuitive. Usually, we take eighteenth-century thought as primarily the intellectual source of the principle of individual rights in society and of the constitutional theory of the division (and therefore limitation) of governmental powers. That is, eighteenth-century political theory has been interpreted as an effort to legitimate and thereby domesticate the state by seeing it as a product of human convention and thus completely subject to normative restrictions derived from theories of community formation. According to this view, once the state was freed from its complex historical dependencies in the seventeenth century, it was subsequently integrated into the sphere of society to manage and guarantee new social and economic relations.¹⁶ As Michel Foucault would suggest, a whole new form of biopolitics emerged in the late eighteenth century as a result of this turn, displacing classical, singular sovereigns who had the decision over life and death with a whole complex technology of power aimed at managing large populations.¹⁷ The vital importance of political economy in the period only highlights this turn as theorists attempted to define and control the flow of resources, within populations and in larger global trade networks, to protect the integrity of the social body.¹⁸

This perspective is not incompatible with the more realist theory of political autonomy, exemplified by figures such as Schmitt, who see in Enlightenment thought only a naive and dangerous attempt to rid the state of its primary principle of operation—namely, sovereignty—by reducing it to a mere function of the democratic institutions that serve the will of society. For Schmitt, the political in its pure form does not concern itself with the normal internal management of a society but instead decides the existential question of that society’s own preservation. The only logic governing the political is therefore the decision on the friend and enemy. The political is never limited by any social, economic, or moral norm—but at no time is it motivated by those norms, and this is what insulated the political from conflicts generated in those fields, strengthening its neutralizing power to decide potentially destructive conflicts. The political figure only decides the question of a community’s continued existence. This is why Schmitt criticized the Enlightenment effort to integrate the state into a social order that harbored plural values and norms: the political institutions would then become a mere articulation of that complex order and not an independent force capable of identifying the threats that put into question the society’s future stability. Such a dismantling of the political only makes sense if one believes that society has its own internal, automatic principle of self-regulation. According to Schmitt, at least, Enlightenment thinkers, informed by a deist theology underwritten by Newtonian mechanics, believed exactly that.¹⁹ Such a naive faith would only lead to disaster, as the French Revolution confirmed. The supposed failure of Enlightenment thought, then, is the failure to separate properly a political form of power from civil society and the institutions constituted for its governance.

This interpretation of Enlightenment political theory is demonstrably incorrect and therefore occludes some of the most interesting and powerful reflections on precisely the question a theorist of political autonomy like Schmitt is grappling with, in particular, the perennial difficulty of how to think through the legal basis of institutions alongside the necessity of maintaining civil order in complex economic societies while protecting the community from internal and external attack.

Now, to be sure, eighteenth-century intellectuals did relentlessly criticize the figure of absolutist authority, and they did develop an inherently legal conception of civil society based on foundational principles of rights. However, we must remind ourselves that these Enlightenment theoretical efforts were, in their original context, first and foremost critical interventions, theoretical positions aimed at elucidating the limits of the current monarchical form of power, at least with respect to its increasing involvement and interference in civil society. That is, we can admit that the Enlightenment was in part an intellectual effort to establish the principle of the autonomy of society with respect to the interventionist powers of the modern, centralizing monarchical state. Yet this interest in the limits of state intervention in social orders did not at all mean that Enlightenment thinkers were not interested in theorizing this kind of state power more broadly, in all its manifestations: just the opposite, in fact.

With the question of the political in mind, we see that Enlightenment thought struggled to integrate existential legitimations of the sovereign state with the demands for civic rights of individuals based on a commitment to natural-law principles. My main goal is to show that these civic rights were not just conceived in opposition to absolutist rule or wedded to eighteenth-century concepts of individual identity. As we discover, especially with Charles-Louis de Secondat, baron de La Brède et de Montesquieu and Jean-Jacques Rousseau, Enlightenment critique was aimed primarily at conceptually separating political rights from the sometimes overwhelming practice inherent in the disciplining of complex modern societies. In an