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. The Province of Jurisprudence Determined. 1832. Ed. Wilfrid E. Rumble. Cambridge:
Cambridge Univ. Press, 1995.
Bentham, Jeremy. Of Laws in General. Ed. H. L. A. Hart. London: Athlone Press, 1970.
Bix, Brian H. “Cautions and Caveats for the Application of Wittgenstein to Legal Theory.”
In Topics in Contemporary Philosophy. Eds. Joseph Keim Campbell, Michael O™Rourke,
and David Shier. Cambridge, MA: MIT Press, 2005, 217“29.
Coleman, Jules L. Risks and Wrongs. Cambridge: Cambridge Univ. Press, 1992.
Dworkin, Ronald. Taking Rights Seriously. Cambridge, MA: Harvard Univ. Press, 1977.
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Fried, Charles. Contract as Promise: A Theory of Contractual Obligation. Cambridge, MA:
Harvard Univ. Press, 1981.
Hart, H. L. A. The Concept of Law, rev. ed. Oxford: Clarendon Press, 1994.
. Essays on Bentham. Oxford: Clarendon Press, 1982.
. Essays on Jurisprudence and Philosophy. Oxford: Clarendon Press, 1983.
. Punishment and Responsibility: Essays in the Philosophy of Law. Oxford: Clarendon
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Hohfeld, Wesley Newcomb. “Some Fundamental Legal Conceptions as Applied in Judicial
Reasoning.” Yale L.J. 23.1 (1913): 16“59.
. “Fundamental Legal Conceptions as Applied in Judicial Reasoning.” Yale L.J. 26.8
(1917): 710“70.
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Paulson and Stanley L. Paulson. Oxford: Oxford Univ. Press, 1992.
Leiter, Brian. “Intellectual Voyeurism in Legal Scholarship.” Yale J.L. & Human. 4.1 (1992):
Llewellyn, K. N. “On Philosophy in American Law.” U. Pa. L. Rev. 82.3 (1934): 205“12.
Posner, Richard A. Economic Analysis of Law, 7th ed. New York: Aspen Publishers, 2007.
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Sebok, Anthony J. Legal Positivism in American Jurisprudence. Cambridge: Cambridge Univ.
Press, 1998.
Shavell, Steven. Foundations of Economic Analysis of Law. Cambridge, MA: Harvard Univ.
Press, 2004.
Wright, Richard W. “Causation in Tort Law.” Cal. L. Rev. 73.6 (1985): 1735“1828.
13 Political Philosophy and Prosecutorial Power
austin sarat and connor clarke

Much recent scholarship has been animated by the desire to understand the limits
of law and how law ¬gures its own limits. It has charted the gaps, ¬ssures, and
incompleteness of legality in a society whose political rhetoric stresses the depth and
strength of our commitment to the rule of law. This work is enlivened and enriched
when it is rooted in, or informed by, the perspectives of political philosophy.
Karl Llewellyn (1934: 205) was correct in identifying ways philosophy shapes
legal action and noting that “[p]hilosophers™ writings and law-men™s doings meet
rarely on the same level of discourse, and part of the game is to ¬nd out where
they do, where they do not, and “ if you can “ the why of either.” However, the
relevance of philosophical perspectives to law was, and is, broader than Llewellyn
acknowledged. His invitation to examine what he variously called “philosophy-in-
action” or “implicit philosophy” so as to identify the “implicit” and “unthought”
premises of legal action pointed to that broader relevance even if he did not himself
pursue it (Llewellyn 1934: 206). In what follows we take up Llewellyn™s invitation,
using political philosophy to cast new light on the work of one kind of “law man” “
prosecutors “ and, in so doing, to chart another domain of what Sarat and Hussain
(2004: 1311) have called “lawful lawlessness.”

It is widely recognized that prosecutors have substantial discretion, but this
acknowledgment is generally framed in the language of administration and
points to their place in an executive bureaucracy (see, e.g., Davis 2001; Ely 2004;
Loewenstein 2001). Theorists explain that prosecutors are granted very wide lat-
itude to pursue their own strategies of law enforcement out of respect for the
separation of powers, or to facilitate the prosecutor™s ability to do substantive jus-
tice. Critics (see Jackson 1940; Vorenberg 1981) worry, however, that prosecutorial
discretion can be a dangerously tyrannical power that poses a threat to justice,
fairness, and the rule of law.
In our view, the decisions that prosecutors make involve something more than
a straightforward exercise of discretion, something more than a bureaucratic phe-
nomenon. Drawing on political philosophy, we want to alter the frame within
which prosecutors are understood from the administrative to the political. Doing
| 106 |
Political Philosophy and Prosecutorial Power 107

so will help us see that prosecutors participate in, and exemplify, the logic of
sovereignty and its complex relationship to legality. In particular, it is the decision
not to prosecute, in a case where there is probable cause to believe that a crime has
been committed, that most vividly exempli¬es this logic.
In this essay we trace the legal and theoretical connections between decisions
not to prosecute and sovereign power. In particular, we draw on Carl Schmitt™s
(1985: 5) well-known de¬nition of the sovereign as “he who decides on the
exception” and its subsequent rearticulation by Giorgio Agamben (1998, 2005).
Applying the work of Schmitt and Agamben suggests that prosecutors decide on
the exception when they decline to bring charges when there is a legally suf¬-
cient basis for doing so, thus exempting individuals selectively from the reach of
valid law.
Of course, not every refusal to prosecute is exceptional in the way that Schmitt
and Agamben use the term. Some of those decisions result from predictions about
the probability of success at trial based on reasons such as insuf¬cient evidence,
witness problems, and the like “ all reasons that derive from legal norms. However,
other decisions draw on the logic of the exception, resting as they do on criteria of
desirability and appropriateness, as when prosecutors decline prosecution because
they feel that a suspect is not morally culpable or because they believe that adequate
alternatives to charging exist. In addition, prosecutors may decline to prosecute for
policy reasons, as when they feel that their of¬ce is overwhelmed and it would be
impractical to take a case, or when she believes that charging would make for bad
press. More dramatically, they may decline to prosecute for no apparent reason
and need provide no account of their decisions. The point is that none of these
latter decisions is necessarily dictated by legal norms.
The lawless potential of prosecutorial discretion has been described by Mortimer
Kadish and Sanford Kadish (1973: 81), who argue that the prosecutor is one of sev-
eral of¬cial roles in which such departures from mandatory rules are justi¬ed, even
commonplace; the prosecutor™s discretionary power, they write, is “substantially
uncontrolled.” While we agree with their analysis, this way of framing prosecuto-
rial decisions fails to identify the extent to which prosecutorial decisions engage the
lawless logic of sovereignty. Those decisions are more than instances of discretion
to disobey the law. Guided by the political philosophy of Schmitt and Agamben,
we can see that prosecutors act in a sovereign manner by creating exceptions to
the reach of valid law. While prosecutors are not sovereign in any simple sense,
declining to prosecute an individual when there is probable cause exempli¬es
the logic of sovereignty in a constitutional democracy, and thereby exposes law™s

For centuries political philosophers have emphasized the power to decide “ be
it the power to decide life and death or to decide something more banal “ as a
distinguishing feature of sovereign might. Traditionally this power has been linked
with nothing more than expediency. Thus, Montesquieu (1989: 54) could write
108 Austin Sarat and Connor Clarke

that the great advantage monarchies enjoyed over republics was that because the
former were “conducted by a single person, the executive power is thereby enabled
to act with greater expedition” “ a word that re¬‚ects well the combination of daring
and discretion the sovereign should employ. Linking a single, decisive individual
with the health of the commonwealth, this argument re¬‚ects the most basic defense
of executive discretion.
Even John Locke “ a lover of the rule of law if there ever was one “ treated executive
discretion as something necessary for preserving the health of the political order.
Far from contradicting his support for the rule of law, this power is, for Locke,
simply obvious. Prerogative is “nothing but whatsoever shall be done manifestly for
the good of the people, and establishing the government upon its true foundations
is, and always will be, just prerogative” (Locke 1986: sec. 158).
In the political theories of Locke, Montesquieu, and others, the prosecutor has
been portrayed as a kind of surrogate sovereign. This is certainly the case for
Montesquieu, who, in the Spirit of the Laws, contrasts the Roman system of private
prosecution with that of his own time, in an effort to show the superiority of the
latter. “We have at present,” he said, “an admirable law, namely, that by which the
prince, who is established for the execution of the laws, appoints an of¬cer in each
court of judicature to prosecute all sorts of crimes in his name . . . [who] watches
for the safety of the citizens; he proceeds in his of¬ce while they enjoy their quiet
and ease” (Montesquieu 1949: 54).
Blackstone (1850) brings the connection between prosecution and sovereignty
into even sharper focus. Like Locke, Blackstone defends executive discretion in
broad terms (it is a “necessity in general”) and elaborates its bene¬ts. The king,
says Blackstone, is “the fountain of justice,” by which he means not the “author” or
“origin” of the law, but rather its “distributor” (1850: 239): “He is not the spring,
but the reservoir; from whence right and equity are conducted, by a thousand
channels, to every individual” (1850: 265“6). Blackstone continues: “The original
power of the judicature, by the fundamental principles of society, is lodged in the
society at large; but as it would be impracticable to render complete justice to
every individual by the people in their collective capacity, therefore every nation
has committed that power to certain select magistrates, who, with more ease and
expedition, can hear and determine complaints; and in England this authority has
immemorially been exercised by the king or his substitutes” (1850: 267). This is
important not only because the king has jurisdiction over these affairs, but because
Blackstone regards the prosecutor as one of the king™s “substitutes.”
However, these classical accounts ultimately prove inadequate for dealing with
the complexities that prosecutorial discretion and the decision not to prosecute
raise for the rule of law. Decisions not to prosecute reveal situations in which
law empowers someone to ignore or, in effect, overturn valid law, situations of
lawful lawlessness. Agamben™s recent development of Schmitt™s political philosophy
emphasizes this quality of sovereignty and therefore provides a more useful vehicle
for examining the practice.
Schmitt™s de¬nition of the sovereign as “he who decides on the exception”
springs from his recognition of the inability of norms to cover all exigencies,
especially situations of state emergency. The great theorist of Weimar Germany
Political Philosophy and Prosecutorial Power 109

tried to fully explicate the fraught relationship between law and decision, wherein
the sovereign is he or she who stands both inside and outside the law, operating
within and affecting a legal structure but not necessarily guided by legal norms.
Schmitt insisted that sovereign decisions often depart from or overturn law and
are not guided by it.
Recognition of this phenomenon “ lawful lawlessness “ leads to a consideration
of sovereignty and the state of exception. For Schmitt, the exceptions that de¬ne
sovereignty become most apparent in situations of emergency or extreme peril,
where legal norms fail to prescribe the appropriate action. Because the “precise
details of an emergency cannot be anticipated, nor can one spell out what may take
place in such a case,” situations of peril necessitate a sovereign decision. Indeed,
Schmitt (1985: 6) continues, this is so even in a constitutional democracy, as the
“most guidance the constitution can provide is to indicate who can act” in such a
case. Thus, even the most robust system of legal constraints cannot avoid decisions
on the exception. Even if the sovereign is granted power to act by law, the law
cannot guide the subsequent actions that the sovereign takes.
By focusing on the inside-outside relationship of sovereign and norm, Schmitt
advances well beyond previous accounts of sovereignty. Decisions on the excep-
tion “ decisions concerning both when it exists and how to respond “ are what
he calls borderline concepts, a word that re¬‚ects the fact that decisions on the
exception exist at the very border of the law. While a sovereign “stands outside the
normally valid legal system, he nevertheless belongs to it, for it is he who must
decide whether the constitution needs to be suspended in its entirety” (Schmitt
1985: 7).
Schmitt™s more ambitious claim is that sovereign decisions form the basis of
every legal order because legal norms are not self-realizing. For theory to become
reality, a decision must be made “ a decision that cannot, in turn, spring solely
from a legal norm. That the legal idea cannot translate itself independently is,
moreover, “evident from the fact that it says nothing about who should apply it”
(Schmitt 1985: 7). Thus, Schmitt concludes, “In every transformation” “ from legal
idea to actual law “ “there is present an auctoritatis interposition,” or a “distinctive
determination of which individual person or which concrete body can assume
such an authority [that] cannot to be derived from the more legal quality of the
maxim” (31). “Ascription,” Schmitt contends, “is not achieved with the aid of a
norm; it happens the other way around” “ that is, by a sovereign decision that, in
its very lawlessness, af¬rms the existence of law (33).
Agamben (1998: 3) has extended Schmitt™s thesis by drawing on the biopolitics
of Michel Foucault, arguing that bare life increasingly is included in the “mecha-
nisms and calculations of state power.” Agamben agrees with Foucault that “the
politicization of bare life as such “ constitutes the decisive event of modernity
and signals a radical transformation of the political-philosophical categories of
classical thought” (4). Is there, Agamben wonders, a unitary center around which
biopower takes shape?
Agamben™s answer is yes, and it leads him back to a Schmittian conception of
sovereignty. Indeed, he maintains that the “inclusion of bare life in the politi-
cal realm constitutes the original “ if concealed “ nucleus of sovereign power”
110 Austin Sarat and Connor Clarke

(Agamben 1998: 6). As with Schmitt, the state of exception, a state that both con-
stitutes and threatens the political order, is the work of a sovereign who “is, at
the same time, outside and inside the juridical order.” His power exists within a
legal order, yet is not legally controlled and as a result he marks “the limit . . . of
the juridical order” (Agamben 1998: 15). Sovereign decisions reside at the zone
of irreducible indistinction mentioned previously, a place where law bleeds into
lawless fact, and vice versa. “The state of exception,” Agamben (2005: 4) writes, “is
not a special kind of law (like the law of war); rather, insofar as it is a suspension
of the juridical order itself, it de¬nes law™s threshold or limit.”
Agamben suggests that the essence of sovereign prerogative is its embodiment
of the power to decide on an exception and remove a subject from the purview
of regular law. Prosecutorial power, of course, does not generally deal in terms of
imminent peril or collapse. And yet the two are not entirely dissimilar, as neither can
be fully subsumed by the rule of law. As Schmitt repeatedly emphasizes, situations
of danger can never be exhaustively anticipated or codi¬ed in advance, and thus
the suspension of law that it requires has to be the result of a conscious decision.
Here, Schmitt (1985: 13) says, “resides the essence of the state™s sovereignty, which
must be juridically de¬ned correctly, not as the monopoly to coerce or to rule,
but as the monopoly to decide.” Sovereignty cannot, of course, live without the
concept of norm that it subtends and is parasitical upon, but that only highlights
its agonistic relation to the rule of law.
The exception is, as Agamben (1998: 17“18) puts it, “a kind of exclusion,” and he
says that “What is excluded from the general rule is an individual case. . . . [W]hat is
excluded . . . is not, on account of being excluded, absolutely without relation to the
rule. On the contrary, what is excluded in the exception maintains itself in relation
to the rule in the form of the rule™s suspension. The rule applies to the exception in no
longer applying, in withdrawing from it.” Acts of sovereignty, like a prosecutor who
refuses to indict even when there is probable cause, create exceptions, exclusions,
but as Agamben (1998: 18) notes, the exception does not “subtract itself from the
rule; rather the rule, suspending itself, gives rise to the exception and, maintaining
itself in relation to the exception, ¬rst constitutes itself as a rule.” Decisions of
prosecutors are quintessentially sovereign acts in that they are authorized by law
as moments when of¬cials can decide who shall be removed from the purview of
the law, but they are not themselves subject to legal review or remedy. They mark
the boundaries of the rule of law even as they do work that law requires.
Our contention is that Schmitt and Agamben help us see that decisions not to
prosecute constitute decisions on the exception and move us from the domain of
administration to politics. Even Justice Scalia (Davis v. United States 1994: 452)
acknowledges that the “[e]xecutive has the power (whether or not it has the right)
effectively to nullify some provisions of the law by the failure to prosecute “ the
exercise of so-called prosecutorial discretion.” It is this ability to make excep-
tions “ in effect to nullify the law “ that partakes of sovereign prerogative. The
courts recognize and accept this power in their consistent refusal to second-guess
prosecutorial decision making, thereby legally authorizing this decision making
that operates without formal legal restraint.
Political Philosophy and Prosecutorial Power 111

One might question our analogy between the state of exception and decisions
not to prosecute, asking if states of exception must involve (or have the potential
to involve) the entire legal order. While Schmitt (1985: 12) makes reference to the
“unlimited authority” of the sovereign, which means “the suspension of the entire
existing order,” both Schmitt and Agamben also suggest that states of exception
can be either “total or partial” (Agamben 2005: 3) or can occur “in general or in a
speci¬c case” (Schmitt 1985: 12). Because decisions not to prosecute always occur
in speci¬c, individual cases, we believe that it is best to call them a fragment of
Although those decisions are not made with the sense of emergency or imminent
danger that Schmitt and Agamben often invoke when discussing decisions on the
exception, the effect “ a decision within the legal framework that is unbound
by legal rules “ is the same. Despite vast differences in scale, decisions not to
prosecute implicate foundational questions about the relationship between norms
and exceptions, and the limits of the law.
We say this despite what may seem like another obvious difference between
decisions not to prosecute and other legal exceptions. In the former case (one might
argue) no exception to a legal rule is actually being decided, because it has not yet
been determined (e.g., as it would by a trial) whether or not a legal norm actually
applies. However, the key issue is not whether some other of¬cial or institution
would subsequently determine whether the norm applies in a particular case “
that is, whether the person being excepted from prosecution would ultimately
be found innocent or guilty. Courts do not consider the strength or weakness
of the prosecutor™s potential case in upholding his or her exercise of discretion.
Furthermore, because the prosecutor is under no obligation to even provide a
reason for his decision not to prosecute, it makes no difference to judges whether
the decision is made for reasons of evidence or equity or for no reason at all.
And yet decisions not to prosecute are notable for how routine, even banal, they
are. It is hard to overstate the frequency, consistency, and familiarity with which
such decisions occur. Indeed, there must be thousands, if not tens of thousands,
of such decisions each year “ truly decisions on the exception that have become a
norm. This stands in sharp contrast to the descriptions of the state of exception by
Schmitt and Agamben. From the very opening pages of Political Theology, sovereign
decisions on the exception are almost by de¬nition atypical. “The de¬nition of
sovereignty,” Schmitt (1985: 5) says, must “be associated with a borderline case
and not with routine.” Later Schmitt™s dismissal of all things routine is even more
pronounced: “A jurisprudence concerned with ordering day-to-day questions,” he
says, “has practically no interest in the concept of sovereignty” (12). In Homo Sacer,
the normalcy of the exception is discussed in relation to the internment camp,
which, for Agamben (1998: 43), is the “biopolitical paradigm of the modern.”
In State of Exception, the focus is both more local and modern: Guant´ namo. a
Indeed, from Agamben™s perspective, the state of exception appears as a threshold
of indeterminacy between democracy and absolutism. The more exceptional we
become, the more we slide away from democracy and toward authoritarian modes
of governance.
112 Austin Sarat and Connor Clarke

This formulation is, by our lights, overly schematic. Here we follow Connolly
(2006: 143) in noting that “the very formalism” of Agamben™s analysis damages
his attempt to negotiate the paradox of sovereignty. This formalism extends to the
consequences of emergency decisions. Do all decisions on the exception really lead
inevitably to the concentration camp? We suggest that the decision not to prosecute
is one of many examples in which this is not the case, involving an exercise of a
fragment of sovereignty.
While we acknowledge that the decision not to prosecute does not ¬t precisely
into the framework of sovereignty that Agamben and Schmitt discuss, it is more at
home there than it is when thought of as nothing more than discretion within an
administrative bureaucracy. Their philosophical work highlights that prosecutorial
power involves something more than a perquisite designed to do no more than
shore up the rule of law and something less than the rare and sweeping grandeur of
emergency powers “ a sovereignty that can suspend the entire legal order when the
situation beckons. The power is legally approved but unchecked, legally exceptional
and yet almost totally commonplace. It has the ¬‚avor of two worlds but resides
completely in neither.

By bringing political philosophy to bear on the seemingly mundane features of
legal practice, we open new ways of seeing those practices and provide more com-
plete accounts of what legal actors do, even when those actors would not see or
describe their work in philosophical terms. Political philosophy helps give meaning
to everyday legal action and to make sense of that action in ways that connect it
to broad and signi¬cant questions about the nature and limits of law itself. Thus,
it has an important role to play in legal scholarship even when it has not “been
established in the habits and attitudes of any person,” even when it does not “affect
or de¬‚ect the current of . . . [the] times” (Llewellyn 1934: 206).
Political philosophy helps us understand ways that sovereignty troubles the rule
of law by being at once prior to it and yet a product of it. Fragments of sovereignty
in a constitutional democracy, like the power of prosecutors, exist in a legal bor-
derland, where ideas of principled predictability and meaningful constraints on
of¬cials meet their limits. This suggests that the boundaries of legality are less
stable and secure, less clear, certain, and chartable, than we are willing to admit in
our everyday practices.
Redescribing prosecutorial power through the lens of philosophical accounts of
sovereignty shows that the rule of law is replete with gaps, ¬ssures, and failures,
places where law runs up against sovereign prerogative. Doing so reminds us that
in many places (e.g., jury decisions not to impose the death penalty, gubernatorial
clemency decisions) law runs out, law gives way, law authorizes the exercise of
a power that it cannot regulate. Political philosophy thus may contribute greatly
in helping us live in a more enlightened and critical relationship to law. While
Llewellyn was right to examine the way philosophy becomes law, the agenda of
philosophy and its relevance to legal thinking was, and remains, much broader
than the role he described in his essay.
Political Philosophy and Prosecutorial Power 113


Agamben, Giorgio. Homo Sacer: Sovereign Power and Bare Life. Stanford, CA: Stanford Univ.
Press, 1998.
. State of Exception. Chicago: Univ. of Chicago Press, 2005.
Blackstone, William. Commentaries on the Laws of England. New York: Harper, 1850.
Connolly, William. “The Ethos of Sovereignty.” In Law and the Sacred. Eds. Austin Sarat,
Lawrence Douglas, and Martha Umphrey. Palo Alto, CA: Stanford Univ. Press, 2006.
Davis, Angela J. “The American Prosecutor: Independence, Power, and the Threat of
Tyranny.” Iowa L. Rev. 86.2 (2001): 393“465.
Davis v. United States, 512 U.S. 452 (1994).
Ely, Amie N. “Prosecutorial Discretion as an Ethical Necessity: The Ashcroft Memorandum™s
Curtailment of the Prosecutor™s Duty to ˜Seek Justice.™” Cornell L. Rev. 90.1 (2004): 237“
Jackson, Robert H. “The Federal Prosecutor.” J. Am. Judicature Soc™y 24 (June, 1940): 18“20.
Kadish, Mortimer, and Sanford Kadish. Discretion to Disobey. Palo Alto, CA: Stanford Univ.
Press, 1973.
Llewellyn, Karl. “On Philosophy in American Law,” U. Pa. L. Rev. 82.3 (1934): 205“12.
Locke, John. The Second Treatise on Civil Government. Amherst, NY: Prometheus Books,
Loewenstein, Andrew B. “Judicial Review and the Limits of Prosecutorial Discretion.” Am.
Crim. L. Rev. 38.2 (2001): 351“72.
Montesquieu, Baron de. The Spirit of the Laws. New York: Hafner Publishing, 1949.
Sarat, Austin, and Nasser Hussain. “On Lawful Lawlessness: George Ryan and the Rhetoric
of Sparing Life.” Stan. L. Rev. 56.5 (2004): 1307“44.
Schmitt, Carl. Political Theology. Chicago: Univ. of Chicago Press, 1985.
Vorenberg, James “Decent Restraint of Prosecutorial Power.” Harv. L. Rev. 94.7 (1981):
14 On (Moral) Philosophy and American
Legal Scholarship
matthew d. adler

Why isn™t contemporary moral philosophy more in¬‚uential in contemporary U.S.
legal scholarship? I am a legal scholar who tries to stay current with the academic
literature on moral philosophy and to bring its insights to bear on legal issues. I
have, for some time, been puzzled by the paucity of fellow travelers. A thought
piece for a book on philosophy and American law seems to be an appropriate
forum for me to ventilate a bit on the question. My focus here will be U.S. legal
scholarship (and I™ll henceforth generally drop the adjective U.S., which will be

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