HEROD’S STATE OF EXCEPTION
The Massacre of the Innocents, by Giotto. Public domain.
The story of our world is the story of violence inflicted on those whose suffering is deemed necessary to maintain “peace” or “order.” There are different variants, but the basic shape of this story is universal. The history of power is characterized by its abuse, and that abuse has always justified itself with the claim of its necessity.
The history of salvation is likewise marked by programs of death and destruction perpetrated in the name of preserving an order threatened by the kingdom of God. Matthew 2:1–4 describes a sovereign confronted with the illegitimacy of his rule:
Now after Jesus was born in Bethlehem of Judea in the days of Herod the king, behold, wise men from the east came to Jerusalem, saying, “Where is he who has been born king of the Jews? For we saw his star when it rose and have come to worship him.” When Herod the king heard this, he was troubled, and all Jerusalem with him; and assembling all the chief priests and scribes of the people, he inquired of them where the Christ was to be born. (ESV)
Verse 16 brings the account to its horrific conclusion - a blatant violation of jurisprudence, the type of violation rulers often think inevitable when the order they sit atop seems threatened:
Then Herod, when he saw that he had been tricked by the wise men, became furious, and he sent and killed all the male children in Bethlehem and in all that region who were two years old or under, according to the time that he had ascertained from the wise men.
Bethlehem was not a sizable town, and so the number of boys killed could not have been great; contemporary commentators estimate no more than twenty to thirty lives could have been taken. But does this minimize the wickedness of Herod’s act? Does it lose its qualification as a massacre if the number of child corpses falls below a certain threshold? Herod’s murderous plot is evil regardless of the final body count.
Herod was troubled (verse 3) because he feared being deposed: the juxtaposition of the one who is acclaimed king to the one who styles himself king quietly disappoints Herod’s pretensions. “All Jerusalem” was troubled for two reasons: first, because the ruling class would find the status quo threatened by another king, and second, the common folk feared Herod’s retribution should a rival claimant arise. Josephus remarks that Herod “never left off avenging and punishing every day those that had chosen to be of the party of his enemies.” (1)
Herod assuages his fear by initiating a state of exception - the suspension of legal order for the ostensible purpose of upholding or reestablishing the law and the norms that law is meant to epitomize. The state of exception is invoked by the sovereign so as to authorize the law’s violation during a crisis which threatens the state. Carl Schmitt, a political theorist of the early twentieth century and one of the chief legal architects of the Third Reich, went so far as to assert that sovereignty just is the right to determine the state of exception. By this logic, the sovereign can decide that the law does not apply or carry force in certain situations which only he can determine. Furthermore, the law itself is most defined by the action of the sovereign and not by its own content. The sovereign, on Schmitt’s view, embodies the content of the law beneath or behind the formal legal order within which the state exists. So, whatever the sovereign does is legal, simply because the sovereign is the true law. The competition over sovereignty, then, is a struggle for the right to violate the law in the name of the law.
It is just such a struggle which motivated Herod and his advisers. For the murderous irony at the heart of Herod’s assembling of the priests and scribes to consult the Scriptures is that though they correctly identify where the Messiah is to be born, none of them recognize the child born there as the Messiah. Their proficiency with the Scriptures does not impel them to acclaim the child as king, only to target him as a threat to their regime. The supposed authority they locate in the sacred texts dissolves at just the point they are required to subordinate their interests and power to God’s appointed ruler. As is so often the case, the Christ is an obstacle in the way of our sovereignty and the barbarism we misleadingly characterize as order.
But even as we recoil from Herod’s massacre of innocent lives, we must look again at the mirror of the text so as to recognize our own atrocities. Which expedients do we rationalize so as to justify atrocity? What “greater evil” do we fear cannot be averted apart from our shedding innocent blood? George Weigel recently defended the decision to bomb Hiroshima and Nagasaki in First Things, drawing on misguided what-ifs and trolley problem reasoning which ignores pertinent historical evidence. On Weigel’s reading of the options available to President Truman in 1945, from invasion to strategic bombing to cutting off supplies to the use of the atomic bomb, all involved the deaths of “millions to tens of millions” of American and Japanese lives. The annihilation of two cities then seems a regrettable but more merciful course of action to take. But Weigel leaves out important data which would undermine his defense of Truman’s decision to use atomic weapons. For if the upper echelons of Japanese imperial leadership were on the verge of surrender, then there was no need to opt for the least bloody of three blood-soaked routes. What would have saved the most lives? Surely not committing a war crime which erased over a hundred thousand image bearers from the face of the earth. We may condemn Herod with the benefit of historical distance even as we carry out our own “necessary” massacre of innocents.
A similar profession of adherence to the Scriptures has been seen in representatives of the Trump administration who have touted decontextualized New Testament passages to rationalize the separation of families at the border and the use of brutal crowd control tactics against demonstrators. Jeff Sessions, for instance, defended the Trump administration’s enforcement of immigration policy by saying, “Persons who violate the law of our nation are subject to prosecution. I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained them for the purpose of order.” This is a pure formalism of order: a law exists, the state enforces it, and God ordains the latter to carry out the former. It is of little concern to the proponents of such a view whether or not that law actually creates order; once it exists, it is incumbent upon all to honor it so as to honor God. It is shockingly easy to be beholden to Schmitt’s political theology without having ever read it.
An order which must be maintained through violence and the fear of violence is a perversion of the Word. Likewise, whatever status quo Herod sought to preserve relied for its existence on the unchallenged infliction of violence - violence that he unscrupulously visited upon all his enemies. The slaughter of the innocents is the shameful unmasking of the disorder, degradation, and subjection at the heart of Herod’s despotism which rules its pathetic client kingdom under the auspices of a much more powerful empire. Herod’s reign is rotten to the core, and we would be foolish to think such regimes exist only in the pages of histories and not in the present.
Lest there be any idealistic presumption that these evils have been reversed and amended with the arrival of a Biden presidency, reality does not bear this out. Biden has maintained the previous administration’s emergency policy of expelling all undocumented migrants and took the further measure of deporting four thousand Haitian migrants. In the midst of this, migrants detained at the Stewart Detention Center, a privately operated prison utilized by Immigration and Customs Enforcement, have been subjected to terrible conditions in which COVID-19 has proliferated. It is a pretense to claim that immoral exceptions are only carried out by one’s opponents.
No political order is immune from the temptation to coercive violence of the type perpetrated by Herod. No ratio of representation, no commitment to rationality or rights can categorically remove the possibility of defaulting to the state of exception. Whatever rights are constitutionally guaranteed, whatever checks and balances are set in place, the situation will arise in which these restraints will hinder our execution of what our modern-day Herods say “must” be done, however horrifying it is, and the law will be appealed to so as to break it.
Herod is the potential within all of us and within our conceptions of order to eradicate opposition to our ambitions. Whether those ambitions are predominantly vain or predominantly in the interests of the “common good” is irrelevant. Either way these ambitions are only realized in our lifeworld in the corpses left in the wake of quashing turmoil.
The one who was born at Christmas comes into that disorder “to frustrate the designs of evil tyrants,” as the Book of Common Prayer phrases it, (2) by establishing an altogether different rule, one in which no state of exception is possible given his consecration to vicarious suffering. He will root out all disorder and evil, but not by instituting pogroms: he will bear their judgment and execution in himself, for the evildoers who will acknowledge the gravity of their crimes and disown their necessity. But whoever will not do so will succumb to the chaos and death they foolishly set in motion and unleashed upon their victims. Disorder consumes itself.
But, thank God, it does not always consume the innocent. The rival Herod sought to eliminate not only survived, but gathers all the massacred innocents of all evil regimes to bear witness against the monstrosity made manifest in the will to power. His lordship is not a clenched fist but open hands held out to obstinate people who walk in the wrong path (Isaiah 65:2), hands ready to embrace, guide, and heal.
Flavius Josephus, Antiquities of the Jews, 15.2 (trans. William Whiston).
The Book of Common Prayer, and Administration of the Sacraments and Other Rites and Ceremonies of the Church, According to the Use of the Episcopal Church, p. 238.
