Two comments on Pedro Caminos’ essay on Vermeule normative framework. by Gerardo Muñoz

In a forthcoming dossier on “common good constitutionalism” at the journal of the Universidad del Salvador (Buenos Aires), edited by the good offices of Guillermo Jensen, there is a featuring essay, “El concepto de marco normative en la obra de Adrian Vermeule”, by Pedro A. Caminos that makes an original attempt to read Vermeule’s legal theory from strong jurisprudential position, and it does so by suggesting that the ‘marginalization’ of the judiciary and the transformation of the administrative state (the Chevron paradigm) implies a normative framework, analogous to Martin Loughlin’s superlegality or Fernando Atria’s common norms (I would be tempted to also add to this list Scott Shapiro’s conception of law as planning). Although I agree with the normative framework in both scope and design of the constitutional theory, there are two underlying elements that I would slightly challenge for further discussion. The first element concerns the notion of tyranny, and the second one to the allocation of “politics” in administrative framework

First, towards the end of the essay, Caminos cites Robert Alexy’s rendition of the Radbruch formula in which no positive law can be tyrannical (or unjust) or it ceases to be legitimate law from an external perspective. For Alexy the conditions of intelligibility must answer not only to internal rules of recognition as positivism would have it, but, more fundamentally, to the challenge of the participant perspective, which is external to the rule of recognition. The problem with the Alexian antipositivist stance in Vermeule’s normative framework is that it would seem to come to a halt if the institutional design is constructed as “second best” safeguards for administrative decision-making. Indeed, the second-best optimizing rule is the same thesis defended in The Exeuctive Unbound (2010), which suggested that ultimate concerns for tyranny (trypanophobia) could ultimately serve the master that it seeks to prevent. To some extent the administrative state – if read from the internal point of view of executive power – is best understood as the optimizing and taming of presidential power through the normative framework. Now, it is true that in “common good constitutionalism” the emphasis against tyranny is counterposed by an objective morality proper to the ragion di stato, which explains why the “second best” optimizing rule is silently replaced by the determinatio that defines the construction zone of the praetorian decision making. The nuances here are important: whereas second-best optimizing rule has no moral purposiveness; the determinatio is by nature a moral discriminatory principle (ius). Whereas the Bartolist jurisprudence aims to tame the privately infused tyrannical forces for good government; the unbounded executive does not fear tyranny as long as it controls the immanent force of administration [1].

Secondly, Caminos derives from the normative framework the construction of a common legal space in which disagreements could flourish. And Caminos sees this as consistent with Schmitt’s concept of the political as the distinction between friend and enemy. But so far as the notion of enmity in The Concept of the Political moves through different determinations, it is an open question as to which determination are allocated or relevant to the normative framework. However, if what defines the “reasonable arbitrariness” of administrative adjudication is predominantly informed by cost & benefit analysis, it would seem that it is value rather than the political distinction the distinctive feature of its logic. This makes sense given the jurisdictional supremacy of the administrative state, which subsumed the legislation into the normative framework. As Carl Schmitt predicted it in his Tyranny of Values, in this context function of the legislator becomes that of a tailor of suturing and producing new mediations for value stratification [2]. But could one conceive the concept of the political within the values of administrative rationality? At the end of his essay, Caminos himself seems to think otherwise, and suggests that normative framework allows for a new conception of political friendship. Of course, in the regime of value administration friendship is defined first and foremost by those are “valued” or “devalued”. Ultimately, this would be strange conception of “friendship”, since, as De Maistre showed, the friend is always outside the margin of utility, and thus constituted outside value [3]. Hence the difficulty for an alleged new politics of friendship: either the concrete friendship is diluted into a “fellow man” (blurring the specificity of friendship) or embracing as friends only those that share common values that can be imposed to non-friends, but who are not recognized as formal “enemies”. This second variant is most definitely the common good ideal type. In either case, friendship and politics become two poles in the procedural organization of values: a hellish reality notwithstanding appearing as a ‘friendly’ paradise of values.

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Notes

1. Adrian Vermeule. Common Good Constitutionalism (Polity, 2022), 27-28.

2.Carl Schmitt. La tiranía de los valores (Hydra Editorial, 2012), 147.

3. Joseph De Maistre writes: “¿Qué es un amigo? Lo más inútil del mundo para la fortuna. Para empezar, nunca se tiene más de uno y siempre es el mismo; lo mismo valdría para un matrimonio. No hay nada que sea verdaderamente más útil que los conocidos, porque se pueden tener muchos y, cuantos más se tengan, más se multiplican las posibilidades en cuanto a su utilidad.”, in El mayor enemigo de Europa y otros textos escogidos (El Paseo, 2020), 212.

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