Sovereignty produces a will to law rather than a rule of law

Evidence

The capacity for self-constitution was possible only through a conception of autonomy that subordinated all conceptions of “normative” law, including the law of the metropolis, which was often seen by the colonists themselves as oppressive. American settler colonialism, from its beginnings until the Civil War, and Israel’s West Bank settlers are representations of the two extreme ends of a single spectrum in which colonial sovereignty exhibits itself. The former was a story of a successful sovereign action, the latter, thus far, considerably, though partially, successful. The “lawless rabble” are no less lawless just because they declare themselves sovereign. Sovereignty is productive not of a normative law or a rule of law, but rather of the will to law. To confuse the two is to confuse cause with effect. Sovereign will in the colonial project militated against the native’s presence as natural “rocks” to be removed from its path, and the law came to execute this will. It changed as the circumstance required, for if self-constitution meant entitlement, political and otherwise, then the Schmittian existential threat is always integral to colonial consciousness and presence. Upon any perception of such a threat the “exception” ceases to be an exception, even in the metropolis. The colonies, more susceptible to incurring such a perception, exhibited an intense degree of “exception,” one that was routinized as a norm. — Wael Hallaq, Restating Orientalism, 418

Categorization

• XREF: Directly engages Schmitt’s sovereign-exception doctrine; also parallels the complained-of ‘lawless’ settler rhetoric in both US and West Bank cases. — connects to: Restricted rule of law beats rule without law — Herbert Marcuse, One-Dimensional Man: Studies in the…, 233; Unprecedented power cannot be constrained by law made before it exists — Shoshana Zuboff, The Age of Surveillance Capitalism, 1637; Governance displaces the rule of law with business instruments — Wendy Brown, Undoing the Demos: Neoliberalism’s…, 137 (+4 more)
• DEEPTHINKING: The ‘will to law’ versus ‘rule of law’ distinction, plus the routine exception in the colonies, is dense and paradigm-shifting for understanding settler legal orders.