Two related themes run through Ted H. Miller’s Friendly Sovereignty. On the one hand, the book draws our attention to what Miller calls “friendly sovereignty.” Discussions of sovereignty, Miller argues, have been unduly focused on hostile acts of sovereignty, extralegal acts by which a sovereign authority inflicts harm on or uses violence against those who are defined, by sovereign authority, as enemies of the state. Miller argues that sovereignty is manifested not merely in hostile but also in friendly acts of sovereignty; that is, in acts that benefit the sovereign person’s friends or supporters by conferring pardons, privileges, and preferments or by granting dispensations from legal duties that would otherwise apply. Miller attributes the lack of attention to friendly sovereignty to the influence of Carl Schmitt, whose work focused on sovereign hostility. The second theme that runs through the book, accordingly, is the attempt to offer a series of critiques of Schmitt’s understanding of sovereignty, which Miller seeks to expose not merely as one-sided but also as historically uninformed.

Miller’s critiques of Schmitt, to start with the second theme, are a little tepid and, to my mind, not entirely compelling. Although the book’s subtitle bills it as a critique of Schmitt, Miller accepts Schmitt’s framing of the question of sovereignty. For Miller, as for Schmitt, sovereignty is manifested in a decision on the exception. What is more, the potted history of the concept of sovereignty that is offered in the first chapter of Friendly Sovereignty struggles to escape the influence of the historical template developed in Schmitt’s writings. Like most of the literature on Schmitt on sovereignty produced by political theorists, Miller uncritically repeats Schmitt’s dismissals of other twentieth-century theorists of sovereignty. The reader is treated to the usual rehearsal of Schmitt’s critique of Kelsen, which, like most other examples of the genre, does not seem to be informed by a reading of Kelsen’s relevant texts. Although he was Austrian, Miller constantly refers to Kelsen as a “German neo-Kantian,” as if his ideas on sovereignty, which were rather more sophisticated than Schmitt’s, were reducible to a neo-Kantian background.

Schmitt’s great mistake, we are told, was to overlook the political importance of friendly as opposed to hostile exceptions. One problem with this thesis, as Miller acknowledges, is that it is difficult to distinguish clearly between friendly and hostile acts of sovereignty. Any sovereign act hostile to one group is likely to benefit another, whereas any friendly act of sovereignty is likely to be detrimental to the interests of those not favored. Miller suggests that the distinction can be drawn in terms of whether the act itself inflicts harm or confers a benefit. This is certainly a plausible suggestion, but it raises another problem for Miller’s critique of Schmitt.

Sovereign acts, for Schmitt, are not simply acts that defy settled expectations: they are acts that are not authorized in any way by the law. If a decision on the exception was nothing more than the exercise of a legal power conferred by constitutional law, it would not amount to a genuine manifestation of sovereignty, and the possibility of a decision on the exception would pose no challenge to liberal constitutionalism. A true decision on the exception, together with the hostile acts that will be performed by sovereign authority in the state of exception, must be legally groundless. Schmitt argues that an unanticipated situation of crisis may call for a legally groundless decision and concludes that a legal order cannot attain stability without the presence of a sovereign authority whose powers transcend positive law. That the power to decide on the exception does not derive from law is what, for Schmitt, makes it the essence of sovereignty.

Most examples of friendly acts of sovereignty that Miller discusses do not qualify as true acts of sovereignty in the Schmittian sense. Consider a presidential pardon, for instance, or a royal grant of a monopoly in trade of a certain good. Such preferments or exemptions are often corrupt, as Miller rightly points out, and tend to breed political discontent. They frequently stand in tension with the demand for equal treatment of all subjects of the law, but they are not legally groundless. The power to pardon, for instance, is conferred on the president by the US Constitution.

In some of his earlier work, especially in Dictatorship, Schmitt was keen to emphasize the claim that state action in a state of exception, which is not a condition of illegality but of a-legality, is purely factual. It uses violence to restore a situation of normality, which is a precondition for the legitimate applicability of legal norms. So understood, exceptional acts are sharply distinct from exercises of legal power on the part of constituted authorities. They do not confer legal rights or privileges or dispense from legal duties. Ideally, they leave no trace in the law once a situation of normality has been restored. The same cannot be true of acts of friendly sovereignty, as Miller describes them, because those acts are typically intended to produce legal effects and therefore cannot be legally groundless. Schmitt, in other words, had sound systematic reasons not to discuss acts of friendly sovereignty. Of course, one might argue that this only goes to show that Schmitt’s understanding of sovereign authority as the power to decide on the exception is much too narrow. But if one chooses that way out, one ought to reject Schmitt’s framing of the question of sovereignty and not try to adapt it.

Although Friendly Sovereignty is not entirely successful as a critique of Schmitt’s concept of sovereignty, the book shines whenever it focuses on analysis of the uses and abuses of the friendly employment of supreme political authority. Miller is right to argue that a focus on Schmitt will lead a theorist of politics to overlook this undertheorized phenomenon. To draw our attention to friendly abuses of political authority, Miller discusses three authors in the history of political thought—Jules Michelet, Thomas Hobbes, and Seneca—who were concerned, though in slightly different ways, with the use and abuse of friendly political authority.

The nineteenth-century French republican historian Michelet considered the use of friendly authority to be a corruption of the general will that was characteristic of the ancien régime. Popular sovereignty must express itself in laws, stringently applied, that express a common interest of all citizens. A popular sovereign, accordingly, must avoid arbitrary preferments as much as arbitrary violence. Miller rightly draws attention to the fact that Michelet’s republican understanding of sovereignty, inspired by Rousseau, has no place in Schmitt’s exceptionalist framework. Schmitt’s claim that nineteenth-century liberals were invariably forgetful of sovereignty, Miller concludes, is historically misleading. Michelet simply operated with a different understanding of sovereignty, one that was arguably better adapted to a democratic constitutional context.

Miller’s discussion of Hobbes makes a compelling case that Schmitt’s reading of him as a decisionist is anachronistic. In Schmitt’s decisionism, a sovereign decision creates value from nothingness, thereby providing spiritual substance to a state that would otherwise be an ideologically neutral mechanism that would be equally serviceable to good ends and bad. Hobbes’s sovereign, by contrast, was meant to deal with a surfeit of ideological tension that was to be countered by the implementation of a secular natural law. Hobbes’s argument for sovereignty, Miller argues, is best understood as a secular theodicy that reconciles us to unwelcome restrictions of liberty by appealing to the individual interest in personal security. Hobbes’s engagement with the problem of friendly sovereignty arises from the worry that acts of friendly sovereignty, in particular acts of friendly sovereignty favorable to powerful agents or groups, may come to undermine sovereign authority and thus compromise the interest in security. Although Hobbes recognized that a sovereign may have good reason to perform acts of friendly sovereignty—for instance, to pardon unsuccessful rebels in return for a willingness to return to obedience—he was staunchly opposed to the alienation of powers that the sovereign might need to maintain order. He was equally worried that acts of friendly sovereignty might encourage a disposition on the part of the favored to hold themselves exempt from the law that apply to others.

The two chapters on Seneca, which focus on De clementia, are perhaps the most interesting. De clementia, Miller points out, is often given credit for its open acknowledgment of the autocratic character of the principate. Miller argues that Seneca’s reflections on clemency, addressed to Nero, do more than give frank recognition to political realities: they exchange the fiction of the continued existence of the republic for the fiction that the emperor is a person of superior virtue. Given the political realities of the principate, an appeal to the emperor’s compassion and mercy had to be couched in a language of unqualified praise that pretended that the emperor already possesses the qualities of character Seneca aims to encourage. Miller suggests that an increased prominence, in public debate and in political theory, of a discourse of friendly sovereignty may indicate the demise of an egalitarian political culture and an acceptance, however grudging, of the fact that an appeal to the good will of the powerful has come to be the most promising way to avoid harm at their hands.

Miller’s historical discussion is consistently attentive to context and is rich in intriguing ideas. It contains valuable exegetical insights and offers timely reflections on what contemporary demands for sovereign mercy and compassion might tell us about our own political condition. When read as a diagnosis of a form of political corruption that is still very much with us, Friendly Sovereignty is a rewarding and important book.