What we must reckon with, in regard to building the Cordoba House in lower Manhattan, is not simply the particular prejudice (anti-muslim) of a particular constituency (the far right). The argument against the community center is that while it is not unlawful for it to be built near the former site of the World Trade Center, that it is culturally insensitive, or rather “uncivil” to do so. The distinction between civility and legality has become rather important recently, as President Obama’s defense of the right of the community center to build on the site has been carefully parsed from a defense of its tact.
As I expressed previously, I think that the whole debate is an exercise by the right of inventing the enemy. Whereas Al-Qaeda has been identified since 2001 as the responsible party for the World Trade Center attack, outright suspicion of Islam has been boiling below the surface. Now, it seems, some are testing to see if the religion as a whole can be effectively painted as “the enemy.” So, although I am about to seriously examine the premises of those who would protest the building of Cordoba House, I must insist that this argument is outrageously misdirected, tactical, and reckless. Nonetheless, it is not unheard of for an argument to fail in its inception, but to succeed in planting its form, the skeleton of the argument, complete with its premises and assumptions, into the public discourse.
Those who would protest the building of an Islamic community center near the former World Trade Center argue that it is disrespectful to do so, that it is uncivil. If it seems strange to a political theorist that a debate might rage over good manners, it shouldn’t. Slavoj Zizek recently argued that western laws and liberties seem to rest on an unspoken exception, much as he has argued that universal, ethical systems also have some internalized “gap” that they must ignore. A legal system based on reason or universal rights, Zizek suggests, preserves itself by withholding in certain circumstances the exercise of those rights. To exercise a right in such a way that makes it imperative to limit that right damages its credibility. The only way to preserve this right, then, is civility – i.e. the capacity to know when a right is best left un-exercised.
This is an interesting take on Carl Schmitt’s other well known theoretical formulation, that the law must be violated in order to be sustained if under grave threat. This violation is the state of emergency, and it can exist because law based on the operation of a norm. Legality/illegality is thus replaced by the norm and its exception. This is the logic that allows the declaration of emergency powers and suspension of law to save law. Schmitt believed that the law could not be self-sufficient, and never account for its own suspension – emergency powers could not be codified, and the belief that sovereignty lay in the law was foolish. Ultimately, it is not the law but a person who will decide if a situation of emergency exists – this person is thus sovereign, and it is their voice which has, in Giorgio Agamben’s idiom, the force of law without law.
What makes Schmitt so relevant to other conservative thinkers is that, as far back as Edmund Burke, they have been incredibly mistrustful of legal codes which are based on ideas of universal justice or reason, and prefer instead the traditional structures (and hierarchies) in society. Perry Anderson writes about this line of thought in his essay on “The intransigent right,” demonstrating how conservatives, Leo Strauss and Friedrich von Hayek in particular, formulated their attack on the state as a kind of enterprise for achieving human potential, preferring instead “organic” institutions which operated without centralized goals and largely dominated by elites. While it may narrow Schmitt’s meaning of “norm” and stretch Zizek’s “civility,” there is a basic similarity to the ideas: that law is not self-sustaining, and hidden within law is an idea of normative behavior which is not legislated, but is necessary to the continuance of law.
The conservative argument, then, that an Islamic community center ought not to be built near “Ground Zero” is, rather than a pragmatic argument, actually a completely ideological one. It seems to suggest that the legal right to freedom of religious practice must be superseded by a majoritarian orthodoxy. While certainly being opportunistic, the right is also making an attempt to place strict socio-cultural norms above the operation of the law (a tactic they are rather familiar with, for example by harassing abortion clinic workers in communities with a pro-life majority). The sponsors of the Cordoba House thus stand accused, essentially, of incivility – they had the audacity to exercise their rights when they ought to have forfeited them.
The right, however, has confounded Zizek’s point; for the Cordoba House to act in a “civil” manner, it must give up freely its right to build on the spot. With the amount of pressure that is being put on the community center to leave, civility is no longer an option, only capitulation or defiance. As it is now, it is impossible for them to retreat from the plan without simultaneously damaging the legal right would have been protected had they declined to build there in the first place. Thus the only way to protect the right to religious freedom, association, and speech, is to stand in defiance of the anti-Muslim forces.
And finally, the right has confounded even itself. Truly the test case for such “civility” is not the so-called “Ground Zero Mosque” but the burning of the Quran that a preacher in Gainesville, Florida is planning for September 11. The same people who might claim that the community center in Lower Manhattan is disrespectful should look with much greater alarm at what promises to be a speech-act that will inflame anti-American sentiments worldwide. How to understand these two flipsides of the same coin, recto et verso. The ACLU might assert the right of each organization to do as it pleases; conservatives might condemn both as abuses of rights and liberties; and many others will defend one or the other for this or that reason. I mean to simply point out that the question goes well beyond tests of “imminent danger” and “shouting ‘fire’ in a theater” which tend to populate free speech debates. It is no longer a secret that such rights are under attack – it is now openly opined that the era of civil rights is in twilight. The question is now the foundation of the law, and whether the law (and politics) can accommodate everything within itself, or must it accept that a majority of public conduct remains outside it, and should be forfeited to mechanisms like the market, religion, or tradition to regulate.
