One of the most illuminating talks at a recent workshop at Kingston University (hosted by the Centre for Modern in Modern European Thought) on institution, legal philosophy, and political thought, was Michele Spanò’s archaeology of the institution of patrimony entitled “Patrimony and the Legal Institution of Subjectivity”. Spanò’s work for some of us has been of extreme importance in thinking about roman law, the historical school of the German legal tradition, as well as the work of Yan Thomas whom he has edited and translated for Quodlibet. Although Spanò’s lecture was based primary on notes and part of a larger project on the ‘invention of subjective rights’, it made a few transitions that thematized the legal infrastructure of property that will be perhaps fundamental to understand, and radically transform, the problem of political economy and the logic of the capital coding that Katharina Pistor has recently explored in our post-sovereign present (I have discussed some aspects of imperial coding of capital here). But it is in the invention of “patrimony” in Roman law, where for Spanò a new epochal conception between things, persons, and reality (-res) was established as a relational matrix that he termined, following the Italian legal philosopher Riccardo Orestano, a conception of law without a subject [1]. This infrastructure of a relation without a central subject of authority – a problem too complex to analyze in this simple side note – revises and displaces the more modernist-style discussion on natural law and positive law, but also intra-conceptual determinations such as the subjects and the impersonal, between rights and obligations, which are part of the long dure Roman-modern matrix of the patrimonial foundation. For me there were at least three important elements that derive from Michele Spanò’s work, which I will leave here for some future elaboration in upcoming writing project on the problem of patrimonial and civil as roman categories of modern juristic-political thought and the American context.
1. The relationality or nexus of the conception of the patrimony (a. every person has a patrimony, b. all patrimony belongs to a person, c. there is a relation between obligation and patrimony) is an early form of exchange value; in fact, it is the equivalent structure that designs the total apparatus of social reproduction and the passage from the polis to the domus (housing / domestication). In this sense, Roman law of patrimony is not about substance or morality, but about the circulation, organization, and exchange of metaphoric value codified. This ensemble appears very similar to what will later be Ernesto Laclau’s theory of hegemony. If this is so, then hegemony is not about political “articulation”, but rather its “politics” is a mere veneer for a spectral patrimony. There is no patrimony without the work of hegemony, and the form of hegemony is a reduction of value that keeps it off from the autonomy of the political. In this light, it makes sense that even a Marxist political economist like former Vice-President of Bolivia, Álvaro García Linera, understood statecraft as the development of and from “patrimonialism”, which entailed necessarily the devastation of the ecological life world [2]. The patrimonial form will ultimately transform the exteriority of the natural world into an object at the service of value.
2. Spanò offered a typology of patrimony in two phases: a. For whom is the patrimony (the personalist type), and b. For what (the functionalist type). In a certain sense, we are now in a term phase of legal adjudication: c. what are the costs and benefits of the management of a patrimony? This entails the logistics of ‘creative destruction’ (Schumpeter) into the very interiority of the legal rationality based on balancing and equity functions. For the paradigm of the cost & benefit equity the problem is no longer posed as a question of function or proprietary, but rather of thorough administration and optimization: to what extent can the risk and security of a patrimony can render X costs in relation to Y benefits of Z of the socialbody? Here the abstraction of the regulation of patrimony coincides fully with the domination of the social space into the juridical logistics. The distinction between private and public law spheres of the European legal traditions (ius commune and Common Law) collapses. As we have suggested in recent investigations, this collapse today is expressed on the rise of administrative law as a restituted Lex Regia.
3. Finally, the collapse implies a chiasmatic movement in the history of the archaeology of Western domination: Roman law and modern positivist law, subject and object, production of rationality and extraction of resources for production of life, the limitations of Roman Law on property and Canon Law on statutes and morality. If medieval canon law of the Church was quenched in the wells of Roman Law, then the question regarding the modern state (its presuppositions, its conditions, crisis, and collapse) amounts to the problem of institution of patrimony as a regulatory of principle of rationality and network of the legislation between spheres (legality, economic, political, rational, instrumental, etc). If there is something to be today against and beyond “hegemony” (no longer an index of politics or culture), then the problem of the patrimonial framework must be understood as a juridical-economic paradigm in which “politics” is incapable of responding to. On the contrary, it could well be that the crisis of politics is an effect of this complex archaeology that, for some of us, Spanò’s work has already started to grasp in light of the return of ‘principles’ for social maintenance.
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Notes
1. Riccardo Orestano. “Diritti soggettivi e diritti senza soggetto”, Jus: Rivista di Scienze Giuridiche, 2, 1960.
2. Alvaro García Linera. Geopolítica de la Amazonía: Poder hacendal-Patrimonial y acumulación capitalista (Vicepresidencia del Estado de Bolivia, 2013).
The collapse of the categorial and formal mediations proper to the foundations of modern politics open up a regime of adaptation as optimized administration. In a concrete sense the well-known Böckenförde formula comes to a closure as it is realized: the liberal secularized state draws its life from preconditions it can no longer guarantee. The fulfillment of secularization entails, paradoxically, a re-theologization of the separation between the species and the experience of the world already leaving behind the temporality of the saeculum. It is no coincidence that three excellent new books recently published and discussed – Conspiracionist Manifiesto (2022), The Politics of Immortality (2022) by Marten Björk, and Adapt! A New Political Imperative (2022) by Barbara Stiegler – share a common thread: the emergence of the regulatory system of adaptation in the wake of the end of political liberalism.
In other words, the marginalization of the logic of representation, the erasure of institutional mediations, and the depolitization of life (which also entails that everything becomes measurable to the value of the political) entails the intensification of a process of abstraction that is deployed on the surround of the human species itself, increasingly optimized given the contingent transformations and irruptions. The Conspiracionist Manifiesto goes as far as to claim that the current articulation of domination should be understood as a full restitution of the nineteenth century project of positivism as the integration of science and life. Comte and his followers, in fact, thought of positivism as a world religion concerning the reproduction of life whose aim was the general crafting of society as an plastic integral organism.
The acceleration of adaptation presupposes the triumph of immanence that was already exerting its force as an indirect power in the nineteenth century drift by romantic subjectivism and expansion of conditions for action in civil society. In the regime of adaptation, the realization of action, devoid of institutional justified reasons, becomes allocated in the processes of production fitted to the incessant demand for adaptation. It is obvious that the acceleration of immanence – first expressed in the subject’s will to power and now folded into the willing slave of adaptation – has intensified in the last years or so, coinciding with the pandemic event and the generic systematization of health understood as a set of coping techniques of behavior.
Already in the 1990s, in an unpublished lecture in Hannover, Ivan Illich described adaptation as an systematization of health: “Adaptation to the misanthropic genetic, climatic, chemical and cultural consequences of growth is now described as health. Neither the Galenic-Hippocratic representations of a humoral balance, nor the Enlightenment utopia of a right to “health and happiness”, nor any Vedic or Chinese concepts of well-being have anything to do with survival in a technical system” [1].
Insofar as it is concerned with the captive reproduction of life, the regime of adaptation puts to rest any believe in positive biopolitics or the community as exception to the social. Yes, this includes even the “community of friends” that Carlo Michelsteader, in his Il dialogo della salute thought as too much of a rhetorical illusion predicated on the exclusion of suffering and death: “In the friendly communities that emerge in light of common vanity, every one lives thanks to the death of those outside the community” [2]. In short, the regime of adaptation solicits nothing else than the task of coming to terms with the principle of the civil (truly the condition of state’s authority), which in even as far as in Roman law made possible the extraneous movement of the subjectum iuris as total equivalence. The predicament of the regime of adaptation – and its irreversible apparatus of administrative law – obliges us to imagine something other than civility (the principle from the Roman Empire to the modern to put it in Cooper Francis’ terms) but without sidestepping into the barbarism of ergonomic processes that are now at the center of what is understood as life. Barbarism and civility’s straight line now bends towards adaptation.
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Notes
1. Ivan Illich. “Health as one’s own responsibility. No, thank you!”, Speech given in Hannover, Germany, September, 1990.
2. Carlo Michelstaedter. Il dialogo della salute e altri dialoghi (Adelphi, 1988).
Monica Ferrando’s short but dense book L’elezione e la sua ombra: Il cantico tradito (Neri Pozza, 2022) refines our understanding of the secularization debate in the wake of the epochal crisis of modernity and planetary domination. For Ferrando this current domination is rooted in a specific retheologization that must be grasped at face value, no abstractions allowed. The force of theological domination, which has become a proper religious imperialism, expresses itself as a true corruptio optimi pessima, which Ferrando locates in a very precise intersection: the passage from the suppression of dilectio to an instrumental manifestation of electio that will culminate in the unleashed power to dominate not only the relation with the world, but the very existence of the species. If the Ancient covenant of early Judaism was a prophetic covenant with God, the force of predestination will suppress the mysterious relationship of blessed life to render a “selective process” of theological election [1]. It is only with the rise Protestantism, and Luther’s specific hermeneutical efforts to neutralize the messianic message of Paul’s Letters to Romans that election becomes the paradigm of a new government of the soul in this world, which will ultimately find its material legitimacy with the advent of the reproductive logic of capital. Implicitly building on the thesis of economic theology, for Ferrando the advent of the machine of election materializes in the theological reform that translates the universal salvation of the prophecy into a never before seen economy of the dispensing grace through wealth retribution for human labor [2].
The reformation based on dispensation (oikonomia) differed fundamentally from the Church’s idea of change rooted in the ius reformandi. As Gerhart Ladner shows, if the “idea of reform” up until modernity presupposed periods of spiritual reform through monastic experience in relation to wordly profane time, the apparatus of dispensation of election was oriented at securing an integral government rationality combining law, economy and subjective production without reminder [3]. In this light, the operation of the dispensation paradigm is twofold: on the one hand, it promotes an anti-Judaic operation of reducing Jews to a people of this world that will ultimately will be identified with political Zionism; and, on the other, it dismisses the coming of Christ as worthless, and in the best case as merely postponed [4]. For a reformed theologian like Karl Barth – at odds with the economic evangelism that ultimately triumphed in the United States and that now it extends across the global – there was only a ‘great dispensation’ putting end to the abstraction of value and the homogeneity of the time of production [5]. But more importantly for Ferrando, the triumph of the dispensatory paradigm entails a new fundamentalism of judgement based on “election” (in the broadest sense of value equity and competition) will appear as the only immanent force capable of considering every other religion and confession exterior to itself as “merely pagan and idolatrous” [6]. It would amount to the triumph of the self-made ‘gentleman’ over the outward message of Paul.
The dominance of dispensation meant a full convergence between salvation and profane economic life that will bring exteriority into a crisis in the deepest sense. This is why for the reformist mentality, its own modern image initiates the epoch of irreversibility; that is, the pure historical progress guided by the will of election and the work of grace as an exception to universal salvation. If the modern reform has been at times understood as the new regime of social pluralism and system of indirect separations (between Church and State, civil society and religion, the public and the private, etc) for Ferrando it is on the side of the theological presupposition where its most terrifying arcanum must be found: a dispensational theology whose main unity is the recurrent intrusion, training, modification, and discipline of the forum internum, that is, the administration of the consciousness of man. Whereas the felix culpa allowed for the mystery of repentance and universal salvation; the political meditation of election through accumulation and economic benefits will legitimize the new discourse on toleration, “liberty”, and even democracy as the distribution of surplus value. In this sense, Liberalism (with Locke and other thinkers of the English and Scottish Enlightenments) was born, as later understood by Carl Schmitt, with the structural weakness of “individual freedom” and maximized autonomy that will require the expanding checks of police and governmental penalties to cope with the production of effects. Of course, every deviation or movement that could put a halt to the fiction of election will find itself on the side of illegality, or turned into a remnant of a surreptitious past that must be overcome at all costs. This implied, as Ferrando reminds us, nothing less than a novel modification of the anthropogenesis of the human species.
It is one of Ferrando’s most daring and surprising tasks to show how the machine of election does not merely occupy the economic-political sphere, but that it will eventually also imply an aesthetic imperative in Northern European culture; specifically with the rise of German romantic response to the crisis of the Enlightenment and the question of “classicism” of the classical Greece. If according to Gianni Carchia the aesthetic dimension of modernity should be read as a compensatory answer to the futility of the romantic revolution in subjectivity; Ferrando’s complementation to the thesis brilliantly shows how this attempt was meant to fail at its original ground due to the mimetic appropriation and metaphorization of the Greek historical past in the aesthetics program of Winckleman and German Idealism (with the exception of Hölderlin’s fugitive position) [7]. The mimetic “hellenization” of German romanticism and its posterior afterlives (one thinks of the Stefan George Circle, and Max Kommerell’s Der Dichter als Führer) gave birth to a notion of “culture” that hinged upon the separation of the aesthetic and the religious spheres that had to sacrifice the appearance of beauty in order to attest for the dialectics of objective and subjective forms of the “Spirit”, and thus leading to the triumph of the grotesque and the aesthetic imperative of uniformity and museification. For Ferrando the German spirit of genialismus had as a mission the overcoming Latin, Mediterranean and Mesopotamian forms of life where the distinction between beauty and life never understood itself as a “culture” or objective project of enlightened intellectuals and artists on the mission to transform the contingency of poesis into the realization of the Idea [8].
Displacing this aesthetic dimension to the present, for Ferrando the intrinsic disconnect between appearance and substance of art’s truth emerges today in the predominant social morality of today’s global bourgeoisie: hypocrisy. It is in hypocrisy where today one can see the inflationary hegemony of discourse over the true organization of life that is proper to the dominant metropolitan class of the West, and its maddening obsession with identity politics or “race” oriented discourse as a moral inquisitorial abstraction (it is in this process that the notion of election appears in the least expected of places: sky color, language use, demands for inclusivity, and hyperconscious towards an invented past). The work of hypocrisy, in fact, appears as a secularized form of the dispensation paradigm that aims to normalize and domesticate every form of life that challenges its specular regime. This is why according to Ferrando – and I do not think she is incorrect in saying so – the possibility of art (especially that of “painting”), as the undisclosed of truth will disappear from human experience, as it has no place in the moral functionalism of ‘contemporary art’ nor in the discursive struggle over global communication and opinion battles (the so-called ‘cultural wars’) [9]. The aesthetic museification of the world liquidates the possibility of art’s truth. Paradoxically, in this new scenario everyone must declare himself “an artist” of their own emptiness: the nowhere men that stroll in the works of Robert Walser or Franz Kafka – who never declared themselves to be anything – in our present are flipped on their heads becoming informers of the regime of a universal politics of recognition and moral judgement [10]. These ‘bloomesque figures’ confirms in the last epochal dispensation of the Reformist revolution that the premises of subjective freedom, economic gain, and autonomy of value have culminated in a new aesthetic imperialism that is anthropological and rooted in the triumphant religion of immanence and the sacralization of ultimate values. The endgame has been dispensed in the creation of a “new man” through the sacrifice of every exteriority in man, that is, of the invisibility outside the fiction of his personality.
The paradigm that Ferrando is describing vis-a-vis the operative force of “election” is also one of profound irony, since the mechanism of predestination and election, by betraying prophetic dilectio (love), the “free election” of the moderns entails that everything can be elected at the expense of losing dilectio: the only path towards the mystery of life. This is what the epoch of irreversibility and the arrogance of historical progress has foreclosed and it is incapable of considering. But for Ferrando life remains an ethics, which she links to Eros, whose appeal to the law of the heart is neither religious nor political, but rather an instance to the disclosure of truth. As she beautifully writes towards the end of L’ elezione e la sua ombra (2022): “Occorre osservare che qui si tocca una sorta di grado zero teologico, che scivola nel mero «biologico» solo a patto di esautorare la sapienza della madre o, detto altrimenti, la sapienza come madre, custode di una legge non scritta, di un nomos del cuore, che non necessita di alcun mandato esterno per esercitare la conoscenza che gli è propria. Si apre insomma quello spazio, costantemente e variamente negato, ma imperturbabile, di cui solo la madre, in virtú di una sapienza propria della natura umana, può custodire la legge.” [11].
The foreclosure of the acoustic relation to prophecy documents the recurrent political interest in the subordination of music to the moral captivity of the reproduction of humanity [12]. On its reverse, the law of eros, prior to the moral domain of natural law and the authoritative domain of positive law, is the protection of the indestructible region of the human soul where no political, moral, or economic dispensation can exert its force. This is confirmed today by the monstrous techno-scientific interventions and dysphoric alterations in the life of children as the last utopia in the long dispensation of the anthropomorphism of capital legitimized by rhetorical force of an unending sermo homilis [13]. In this sense, what Ferrando accomplishes in this wonderful essay is to remind us that the event of theology remains outside the dominion of priests and bureaucrats and situated in the prophetic dimension of Eros (love) that guards the inclination towards beauty and the disposition to attune oneself to the prophecy of the world’s fulfillment [14]. Hence, it is not in the community or in an integralist Christian traditional family order where the sacred dimension of humanity can be retrieved; rather, for Ferrando it is in the non-knowledge reserved by the eros of the mother who never decides nor choses before law, whose nonverbal “tacit authenticity” (“tacita autenticità del legame materno”) unconceals a true experiential depth away from the the delirious cacophony of our world.
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Notes
1. Monica Ferrando’s L’ elezione e la sua ombra: Il cantico tradito (Neri Pozza, 2022), 8-9.
2. Ibid., 22.
3. Gerhart B. Ladner. The Idea of Reform: Its Impact on Christian Thought and Action in the Age of the Fathers (Harvard University Press, 1959).
4. Monica Ferrando. L’ elezione e la sua ombra: Il cantico tradito (2022), 24.
5. Karl Barth. “The Great Dispensation”, Interpretation, V.14, July 1960, 311.
6. Monica Ferrando L’ elezione e la sua ombra: Il cantico tradito (2022), 30.
7. Gianni Carchia. “Modernità anti-romantica”, in Il mito trasfigurato (Ernani Stamptore, 1984).
8. Monica Ferrando. L’ elezione e la sua ombra: Il cantico tradito (2022), 60.
9. Ibid., 91-92.
10. Ibid., 94.
11. Ibid., 106.
12. On the controversy of music as a tool to tame human’s passions, see John Finnis’ “Truth and Complexity: Notes on Music and Liberalism”, American Journal of Jurisprudence, Vol. 62, 2017, 119-124.
13. Gianni Carchia. “Eros y Logos: Peitho arcaica y retórica antigua”, in Retórica de lo sublime (Tecnos, 1990), 29.
14. Gianni Carchia. “Dialettica dell’immagine: note sull’estetica biblica e cristiana”, in Legittimazione dell’arte (Guida Editores, 1982), 21.
A couple of years ago I wrote the prologue to accompany the new edition of the almost forgotten novel Vendaval en los cañaverales (La Habana, 1937), by the reactionary writer Alberto Lamar Schweyer. I entitled the text “Avestruces en Niza”, since half of the novel, or almost all of it, takes place in the French riviera, where a bunch of decadent upper middle-class bourgeois couples live off the revenue of a transnational sugar-cane production and exports company based in the eastern part of Cuba. Written at the height of the convoluted years of the 1930s – as political turmoil intensified and the economy plummeted, putting an end to the recurrent developmentalist dream – it was not too difficult to read the ethos of this important work in light of the famous lecture “Cubano, avestruz del Trópico” (“The Cuban, an ostrich of the Tropics”, 1938) by eminent intellectual Enrique Gay Calbó, who deployed the figure of the bird to diagnose the obliviousness to economic reality and the short-term disposition (“cortoplacista”) of the national anthropological subject. The essay has been read, at times, under the framework of a pessimistic outlook towards the aspiration of amending a truly republic after independence, but at the same time, and all things considered, it should be also read as a metaphorical attempt to denote the ethos towards abstraction of the ruling criollo elite that would accelerate its compensations through direct coercion and acerbic pro patria mori rhetoric. Lamar, who belonged to this intellectual class, was able to provide a narrative form to these elements of the national interregnum, without introducing allegorically, the figure of the ostrich. And it is impossible for him to have known of Enrique Gay Calbó’s metaphoric resource, given that the lecture was delivered in April of 1938.
However, the ostrich was not accidental, and some of these details were unknown to me while writing the prologue to the edition (hence this sui generis addendum). Indeed, the ostrich was no exotic animal in the new minted Republic of Cuba, since as early as 1906 there were active ostrich farms in Marianao, Havana, financed by an American company from Arizona [1]. To my surprise, the mini report from The Cuban Review and Bulletin stated that half of the ostriches came from Nice, France. It would make sense, then, why Jean Vigo’s silent beach documentary À propos de Nice (1930) in truly natural fashion, featured a montaje of a fur-dressed lady with that of a strolling ostrich across the Promenade des Anglais, the same boardwalk used by the characters of Lamar’s novel. But what could Vigo’s momentaneous, and almost dream-like ostrich tries to tell us? Unlike Gay Calbó’s bird, the Promenade ostrich is no longer burying her head on the ground, but rather looking perplexed at modern bourgeois world, quite disoriented and visibly alienated among the frenzied crowd of strange and oblivious tourists. This is no world for an ostrich, and the moment she appears on the screen she is gone. Or at least this was Vigo’s playful cinematic gesture: the “new world” of the 1930s was soon going to be transformed into something radically different underneath the gaming, the sporting, and the consumerism.
Furthermore, the ostrich as a symbolic creature occupies a sort of threshold between transitional epochs. In a beautiful book dedicated to the arcanum of this animal in Raphael’s fresco at Sala di Costantino at the Vatican, Una Roman D’Elia reminds us that the idea of the ostrich as the cartoonist semblance of a bird sticking the head in the sand marked the new Renaissance mental structure that separated art and science in a new world now dependent on the self-assertion of anthropocentric conception [2]. However, what was enigmatic and attractive (and it continues to be) in Raphael’s ostrich is precisely an intermingling of the ostrich as arcana that converged mesopotamian, Egyptian, Hebrew and Roman bestiaries, and Christian religious history in a thick living creature that was both a myth and an animal of this world. A true symbol of imagination that brings to an end the modern conception of figurative expression and animal taxonomy. This is why even Saint Augustine could allude to the ostrich along with sirens – “Sirens daughters of ostriches, why should they bless me?” – who were called filae passerum by Plautus because they were imported from Africa, that is, from overseas [3]. The ostrich was the animal of passage between land and sea. In a clear parodic unfolding of symbolic meaning, what at some point cultivated imagination, myth, and the distance with the world was transformed into a large bird for farming, and converted into a metaphor of the deleterious effects if the constitution of reality is ignored.
In this forking of paths, it is true that Raphael’s ostrich is no longer a clear symbol to transmit a myth; on the contrary, it becomes a metaphor open to meaning (a meaning which will soon become extraction: feathers, egg production, zoology, and finally anthropological metaphor). For Roman D’Elia, the ostrich claimed a “higher mystery” in its own evasive force that resulted in the tensions between naturalism and meaning, symbol and representation, justice (iustitia) and the creations of the world. Was the ostrich a pagan incarnation of “Justice”, or perhaps the mannerist morphology of the all-encompassing judge’s majestum, that is both tender and imposing? Or is perhaps is the ostrich iustitia the last form of justice, at the eclipse of this world, that is, an messianic figuration towards the end of days and the banquet of the mythic primeval monsters (Leviathan, Behemoth, and Ziz)?
As Lois Drewer draws in her interpretation of the three mythic creations from the Talmud: “Once the egg of a Bar Yokani [an alternate name for Ziz] fell and its contents swamped sixteen cities and destroyed three hundred cedar trees. But does it actually throw the egg? Is it not written: ‘The wing of the ostrich beateth joyously’ [Job 39. 13]. The egg [which it smashed] was rotten” [4]. Could the ostrich be understood as the mythical Ziz, who unlike the monsters of the nomos of the Earth (Leviathan and Behemoth), refuses to engage in the depredatory game in order to save itself for the celestial messianic banquet of eternal life? And if this is so, then the ostrich, instead of a creature of this world, is the last animal of the world who takes under its wing the absolute accomplishment of Justice that coincides neither with the principle of the aequitas of nature nor with the constitution of reality, but rather with what is vanquished in the modern spirit: mainly, the erotic mystery of the separation of life and the world. The ostrich was not in itself mysterious, but perhaps more fundamentally a keeper of the eschatological mysterium.
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Notes
1. “Ostrich Farm in Marianao”, The Cuba Review and Bulletin, Vol.5, 1906, 23.
2. Una Roman D’Elia. Raphael’s Ostrich (Penn State University Press, 2015).
3. St. Augustine. The Works of Saint Augustine: Sermons on the Old Testament (New City Press, 2011), 410.
4. Lois Drewer. “Leviathan, Behemoth and Ziz: A Christian Adaptation”, Journal of the Warburg Institutes, 1981, V.44, 1981, 152.
In his chapter on the radical theology of abundance and ethics of Karl Barth, Mårten Björk discloses a central concept to the reformist theologian: the suum cuique, a term that prima facie could be rendered in natural law definition of legal justice, inherited from Roman lawyer Ulpian, as “may all get their due”. In the thomist tradition the legal notion of epikeia promptly became equity as the moral supervision of law’s principle (ius) understood as the application of the fair and the objective good. The justification of the balancing of aequum became a regulatory mediation on the grounds of a fictive principle of nature as moral reasoning, which has been well documented by Stephen Humphreys [1]. What makes Barth’s drawing on the notion of suum cuique in his interwar pamphlet Church and State (originally entitled Justification and Law, 1938), on the contrary, is precisely that it is not reducible to equity, but rather as Björk explains it: “the limit to our life, a limit brought forth by death itself, is in the end the vast chams that posits the creature as create of God…and this has ethical and political consequences” [2]. This is telling, and my aim here is to supplement the discussion in “Abundance and Scarcity” by showing its radical asymmetry with the reasonableness of the natural law. Barth’s anti-activist Church (although not neutral in the wake of the total state of the 30s) and apathy towards morality, stands as a sui generis bearing.
First, in the moral natural law tradition of equity (epikeia) “giving each one their due” becomes a strict legal-authoritative command principle on the reasonableness of nature centered on the ontology of the person. It is quite the opposite for Barth who does not favor a constant moral adjudication, since the separation between Church and State presupposes a previous divine justification that belongs exclusively to the Church, but not to the state. In fact, law practiced on the condition of natural principles will undermine the authority of the liberal positivist state, which Barth defends vehemently, making the case for its coherence with the teachings of the New Testament: “The democratic conception of the state is justifiable expansion of the of the New Testament…Christians must not only endure the earthly state but they must will it as a just state, not as a “Pilate” state” [3]. It is not surprising, then, that Barth wrote this tract openly defending the authority of the modern positivist state, contrasting it to the anti-statist unjust pretarian judgement of the trial of Jesus. This makes sense given that the pretorian ius honorarium could be understood, at least in part, as belonging to the tradition of the moral balancing of equity between morality and norms (just as the two irreducible kingdoms) [4]. Barth’s defense of the positivist state is even contrasted to natural law, which for Barth is incommensurable with the word of God: “We cannot measure what law is [in the State] by any idea of natural law…” [5].
Accepting the primacy of the equity of a substantive bonum will not only serve to override the authority of the state, but also, and more importantly, to flatten out theology’s monopoly over divine justification. At this point Barth is quite explicitly in saying that this is what took place – and I think he is correct, specially if we take into account that the degenerate legality in Nazi Germany and Stalinist Russia was not an abuse of positivism, but a consequence of the open-ended common and natural law principles to the point of distortion – in the wake of fascism and Bolshevism in the interwar years of Europe. Barth writes with this in mind against artificial heavens on earth, as part of a hyperbolic “politicizing from above”:
“Fascism and Bolshevism alike will be dethroned and the true order of human affairs will arise. Not as heaven (not even a miniature heaven) on earth! No, this “true order” will be able to arise only upon this earth and within the present age, but this will take the place really and truly, already upon this earth, and this present age, in this world of sin and sinners…this is what the Church has to offer to the state…” [6].
The political domination of the total state amounted to a conflation between the lapsarian condition of man and the theology of eternal life. The passage or mediation between the two dimensions, which he also described as a “tailor made garment” was the suum cuique, understood as a limit to life and death beyond morality and biological reductions. Barth insisted on the principle of separation in face of every temptation of technico-rational closures. Thus, by externalizing divine justification to the sphere of theological eternity, Barth’s conception of “giving one’s due” was radically disambiguated from the Nazi motto “Jedem das Seine” (to each his own) in the concentration camp of Buchenwald in 1937, made possible by the opened force of common law adjudication against the state positivist authority (understood by Nazi legal scholars as “too Jewish”). This was the barbaric dereliction of duty of the state becoming what Barth called a “clerical state” [7]. Barth’s ethical limit on finite and eternal life, so well reconstructed in Björk’s brilliant monograph, can only be a witness to a ‘world passeth away’ to which no priestly jurists have the last word unless catastrophic consequences are expected. The ethical response to the lapsarian condition was a radical drift from the dangers of natural absolute rationalism that was directly implicated in the arousal of immanent powers and the reduction of the population as mere administration of doctrine of last things through consciousness and not grace. The suum cuique introduced a radical exteriority in which all men became “strangers” (to the Church, national identity, the community, to the social) whose proper involvement pertained to the eternal mystery of life and death.
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Notes
1. Stephen Humphreys. “Equity before ‘Equity’”, Modern Law Review, 2022, 1-37.
2. Mårten Björk. The politics of immortality in Rosenzweig, Barth, and Goldberg: Theology and Resistance Between 1914-1945 (Bloomsbury, 2022), 115.
3. Karl Barth. “Church and State”, in Community, State, and Church (Anchor Books, 1960), 146.
The central contribution of American republican political thought is arguably the way it found a solution to the problem of factions, a legendary difficulty that not only has not disappeared but rather intensified in our present. For the enlightened republicans of the eighteenth century, well versed in the classical tradition and the histories of Florentine medieval strife, factionalism was the cardinal difficulty of social order; how to best deal with conflicting loyalties and the perpetuation of violence for virtuous and at times times even springing from “idleness and courage of the youth”, as told by Carol Lansing’s scholarship [1]. The existence of differences and cleavages in the society ultimately meant the brewing of an ephemeral coalitions and private masters, which, in turn, often resulted in the thorough expulsion of the enemies from the polis. These unregulated clashes of authorities and private actors was called by the fourteenth century jurist Bartolus of Saxoferrato a seventh form of government mixture: a “monstrous government”. The problem of faction will emerge for the moderns as the condition that prompts the articulation of a governmental rationality capable of constructing the homogeneity of social living. In other words, the modern classical homogeneity of the civil society is the creation of the domestication of factions as social grouping units to be obtained and arranged as an indirect power from within to transform ‘barbarism’ to civilization. David Hume’s political writings – and in particular his “Idea of a Perfect Commonwealth” (1752), which was highly influential to the Federalists, understood that the threat is of “factions” required a new framework: politics had to be reduced to a science [2]. What could politics as science entail? We are not yet in the administrative rationality and professional political vocation of Max Weber’s sociology. The scientific reduction meant a paradigmatic transformation of classical politics properly understood (virtuous, moral, and just) into an economic determination in which interests took the center stage over the combustion of the passions. The new science of politics implied a retooling of the problem of factions by decompressing the clustered interests of unaccounted and disloyal factional expansion under governmental action. For Hume the passage from passions to interests entailed a descaling of factionalism on one hand, while an expansion of a robust form of government over a large territory on the other.
However, if for Hume factions are still an impolitical unit of association that must be minimized, it is James Madison in “Federalist 10” who achieves the complete “scientific” aspiration of political construction over factions as inseparable from the Social ahead of the industrial modern economic division of labor. In fact, as Douglass Adair reminds us, this particular essay of the Federalist Papers only became important towards the end of the nineteenth century in the wake of industrialization and economic power groups; that is, at a moment when indirect economic powers began to exert their influence into the institutional and regulatory composition of the state [3]. One could say that it is only at the outset of the triumph of economic “Americanism” that the Madisonian framework on factions is situated in its proper tripartite structure: factions are conditioned by positive liberty and make up the totality of the economic interests that make up civil society. Indeed, for Madison factions as expressions of the nature of man, and their existence detail degrees of activities in civil society [4]. In a way there is no civil society without factions, and there are only factions because there is civic Liberty.
Madison even constructs a naturalist analogy: what unrestrained Liberty is to faction, air is to a propagating fire. The activity and energy of factionalism is exclusively understood as one of economic interests which, insofar as it is conditioned by positive, differentiated, and unregulated liberty that expresses the unequal distribution of property that characterizes the essence of the social. The new science of government in this framework becomes clear: the end of government is neither properly about political enmity in relation to the state nor about suppressing and limiting factions, but rather about the optimization of the effects of factions. Madison writes in the groundbreaking moment of “Federalist 10”: “The interference to which we are brought is that the causes of faction cannot be removed from that relief is only to be sought in the means of controlling its effects” [5]. The optimized logistics of factionalism displaces the modern hobbesian picture of the sovereign state to a minimalist and compensatory nature to attenuate public order against “local and particular state legislatures” [6]. The optimization of factions now appears as the dominant aspect of a fundamental cybernetics that seeks to isolate, fragment, and juxtapose the conflagration of factions without losing the barring of state energetic durability. The faction difficulty lays bare the arcanum at the center of the res publica politics: the administration and reproduction of civil conflict.
The consolidation of the cybernetic solution to the faction difficulty emerges as an upgraded version of state auctoritas whose aim is to establish a balance between public opinion as distrust over “dispute”: “communication is always checked by distrust in proportion to the number whose concurrence is necessary” [7]. If communication becomes a strict science of regulating the means of expression (itself a medium), political authority is superseded over a constant war over words and force of exchange. This means that rather than putting an end to the stasiological tension through a political mediation of the state, the problem of faction reveals that stasis becomes an instrument to manage effects, produce legislative, and translate interests in the struggle of social differences. It goes without saying that perhaps the modernist differentiation between state and civil society in light of the problem of faction loses its predominance, as an entirely new framework emerges: a monstrous socialization that takes the form of a productive stasiology given that if “men were angels no government would be necessary” [8]. The irony is that the auxiliary precautions of factions is a secularized form (or at least one could trace it to) of the ministry of the angels. This reality demands a new ethic of the passions against both the vigorous indirect struggle of factionalism (and its modern rendition in the party form) and the axiological arrangement of interests that made the foundation of the social community possible.
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Notes
1. Carol Lansing. “Violence and Faction”, in The Florentine Magnates: Lineage and Faction in a Medieval Commune (Princeton U Press, 2014), 181.
2. David Hume. “Idea of a Perfect Commonwealth”, in Political Writings (Hackett Publishing, 1994), 240-252.
3. Douglass Adair. “The Tenth Federalist Revisited”, The William and Mary Quarterly, Vol. 8, No. 1, 1951, 48-67.
4. Alexander Hamilton, James Madison, & John Jay. “Federalist 10”, in The Federalist Papers (Mentor, 1961). 79.
5. Ibid., 80.
6. Ibid., 83.
7. Ibid., 83.
8. “Federalist 51”, in The Federalist Papers (Mentor, 1961), 322.
Jean Franco, pioneer of Latin American Cultural Studies and witness to its Cold War gigantomachy, passed away a couple of weeks in December at age 98. She remained lively and curious even at the very end of her scholarly life, and for some of us that saw her in action she embodied the memory of the century. The photograph above is of Jean’s visit to Arcadio Díaz Quiñones graduate seminar in the fall of 2015 where she discussed some of the main arguments of her last book Cruel Modernity (Duke U Press, 2014), a cartography showing the definite closure of the Latin American insomnia for political modernity in light of its most oblique mutations: narcoviolence, the emergence of a dualist state structure, and new global economic forces that putted an end to the vigil of the revolutionary enterprise. I write “definite” purposely, since Jean’s own The Decline and Fall of the Lettered City (Harvard U Press, 2002) already hinted at a certain exhaustion (to borrow the strategic term of Alberto Moreiras also writing during these years), most definitely a thorough disillusion, in the sense deployed by Claudio Magris, of cultural substitution for the belated state-making modernization. The function of “culture” (and its hegemonic state apparatus) was always insufficient, dragging behind, or simply put, unintentionally laboring for the cunning of a project forever postponed in the sweatshop of the newest ideologue, or for the hidden interests of the “local” marketplace of moral academicism. All of this has come crashing down rather quickly even if the demand for culturalist janitorial or housekeeping services are still in demand to sustain the illusion sans reve et sans merci.
What always impressed me about Franco’s scholarship was her intellectual honesty to record, even if through an adjacent detours and academic finesse, the destitution of all the main categories of the Latin American modern wardrobe: developmentalism, state-civil society relations, the intellectual, cultural hegemony, revolutionary violence, the “rights revolution”, and the intra-national spatiality (rural/metropolitan divide). From now on it is hard to say that there is a “task of the critic”, if we are to understand the critic in the Kantian aspiration of sponsoring modern values and perceptiveness to an enthusiastic disposition (definitely optimistic towards action) to transforming the present. As a witness to the twilight of the Latin American modern epoch, Franco univocally resisted the inflationary, value-driven, demand for politicity and ‘more politics’. This is why her attitude remained at the threshold of any given effective political panaceas or half-baked illusions.
Does her biographical experience say anything to this particular inclination? It is difficult to say, although as a witness of the century Jean had lived through the coup in Guatemala in 1954, visited the Cuban Revolution during its most “intense years” of the sugar cane milestone (La Zafra de los Diez Millones), and followed with attentiveness the rise and transformation of the Southern Cone dictatorships in the 1980s coupled with the irreversible social transformation of neoliberalism in the 1990s signaling the effective end to regional integration in the face of planetary unity. All of this to say that I find it hard – at least leaving aside the many nuances – to see in Jean’s scholarly witness an enthusiasm for the Latin American Pink Tide, the communal state, or abstract regional historicizing that could finally bring about the moral universe of the national-popular state (as if said moral realization would be anything worthwhile, which we some of us seriously doubt). If Jon Beasley-Murray once said that John Beverley was the “Latin American unconscious”, I guess it is fair to claim that Jean Franco was an authentic Latin americanist realist; that is, someone that was up to task to see in the face of the tragic, the cruel, and the heinous as the proper elements of the interregnum. Or to better qualify this: she was a worldly realist, leaving aside utopias and its abstractions. At the end end of the day, Leninists are also realists, or at least claim to be so. What places Jean’s earthly realism apart from the Leninist realism is the subtraction from the seduction of Idealization, which even in the name of the “idea” (“the idea of communism”, say) or “immanent higher causes” must bear and render effective the logic of sacrifice at whatever cost, even the real sense of freedom if demanded by the party, the leader, or the community. This is why at the closure of Latin American modernizing enterprise communitarian arrangements, posthistorical subjects / identities, or grand-spaces that mimic the constitution of Earth are foul dishes for a final banquet. It is always convenient to refuse them.
Going back to my conversations with Franco at Princeton, and some exchanges a few months later in a cafe near Columbia University, for her there was remaining only the anomic geography of Santa Teresa in Bolaño’s 2666, a novel that charts the current ongoing planetary civil war in the wake of the crisis of modern principles of political authority. I can recall one remark from Jean during these exchanges: “¿Y quién pudiera mirar hacia otra parte?” This is the general contour of her witnessing: how not to look somewhere else? In other words, how not to look here and now, into the abyss that is no longer regional or national, Latin American or cultural specific, but rather proper to our own civilization? A civilization is, after all, nothing but the organization of a civis, which has now abdicated to both the metropolitan dominium, as well as the campo santo of sacrificed life at the hand of techno-administrative operators (the new praetorian guard) of a well lighted and fully integrated Earth.
There is no alternative modernity, decolonial state, or hegemonic culture that will not serve to the compensatory and sadistic interests of the cruel policing of death and value, as the only masters in town. We are in Santa Teresa as a species of energy extraction. Can reflection be courageous enough to look through and against them? This is the lasting and eternal question that Franco left for those who are willing to see. It does not take much, although it amounts to everything: mirar / to gaze – in an opening where human form is lacking and categories are wretched – is the the most contemplative of all human actions. Whatever we make of it, this practice now becomes the daring task of the coming scholar.
The posthumous volume Lo cóncavo y lo convexo: escritos filosóficos-político (Guillermo Escolar, 2022) of essays by the late political theorist Jorge E. Dotti is a very much needed contribution that opens up a conversation about a theoretical corpus that witnessed the collapse of the modern state and the crisis of its political categories in times of postliberal forms of global domination. Although an astute observer of the key moments in modern Argentine political history (from Peronism to the dictatorship, from the return to democracy to the failure of the democratic socialist party experiment), Dotti’s intellectual stamina remained on the margins of political adventurism, while openly rejecting the organic intellectual political advisor to heads of state. As editor Damian Rosanovich writes in his introduction, Dotti refused to subordinate his political thinking to immedaite ideological projects; a rather unique position to undertake in a national context like the Argentine, historically inclined towards philosophia militants of the national popular type[1]. Complementary to this inclination, Dotti’s political thinking also had little to say (at least in a direct manner) to the Latin-Americanist disputes about state modernization, regionalism as supranational identity, or cultural formation hegemonies that dominated twentieth century discussions in the region.
Dotti’s theoretical ambitions had a more prudential wager: a confrontation against all kinds of abstract universalities, as well as its partner in crime, locational exceptionalism always ready to infuse doctrinal flavor unto nominal situations and practical problems. A modernist political thinker at heart, Dotti was also a keen observer of the the modern state genealogical crisis, which he read in a tripartite scheme that included the classics of modern political thought (Hobbes, Rousseau, Hegel, Kant), modern philosophy of positive law (infomed by his research years in the Italian context), and finally the work of Carl Schmitt on sovereignty, divisionism, the exception, and the difficulty of “revolution” as the esoteric form of political crises. As an heir to this modern tradition, for Dotti modernity is best defined not as predicated on contingency or anthropological reserves, but rather about a certain ethos, historical in nature and spatially grounded (in this way his vision was close to that of JGA Pocock and the Cambridge School, although less emphatic to the centrality of concepts), which claimed that the political thinking of the classics had to their disadvantage the idealization of every practical situational problems encountered in concrete determinations [2]. In this way, Modernity was best defined as a struggle against abstraction and the taming of indirect powers over the configuration of social stability and endurance.
The classics of political thought, while claiming the intrinsic political nature of man and the primacy of organic totality over every principle of differentiation, imposed a nomalist metaphysics that turned its back to discrete and discontinuous situations. For Dotti at the heart of modern politics – very much in line with Hobbes’s critique of Aristotelian critique of the virtuous politics – is rooted in a practice that is attentive to practical reasons for action and the normative foundation of a social order. Hence, the modern ethos was able to favor the primacy of authority (auctoritas non veritas facit legem) as a minimalist non-substantive framework of public law. In other words, prior to doctrinal and categorical arrangement of modern political theories (social contract, constituent power, or individual conscience), authority helped dissolve the anarchy over words and actions proper to the European civil wars. Needless to say, legal positivism had to walk along modern subjectivity (“Quiero, luego existo…”) inadvertently promoting, while neutralizing, the latency of civil war from its inception. As Dotti claims in an essay on Melville too long to be included in this volume: “Quien contrata se concede el derecho de desencadenar la guerra civil” [3]. The concrete situation of the modern ethos, in this sense, is never enough for containment; and its positive arrangements, being insufficient, will ultimately depend on direct police powers. The story of political modernity is that of legality trumpeting legitimacy for optimal reasons of political control. The insufficiency of the modern political order entails that politics and nihilism walked every step of the way too near each other.
This outlook towards political modernity renounces all nostalgia as it is a genealogical critique. This position speaks to Dotti’s systematic dialogue with Carl Schmitt’s juristic thinking regarding the polemic over secularization of the state and its political categories. Like very few political thinkers of modernity, Dotti accepts Schmitt’s lessons without prejudices and against the political black legends (Schmitt as the poisonous enemy of legal positivism, political liberalism, archaic Catholic, or ally of Nazism) that have been incapable to comprehend the German jurist lessons. If according to Raymond Aaron Schmitt was far from thinking like a Nazi, Dotti take this promises to more refined elaborations: the combination of decisionism and institutional rule of law coagulate an compossitum whose main aim is to regulate the internal functions of validity of the every political order [4]. The force of political theology, then, is neither doctrinal nor axiological, but rather attentive to situational stress of instances as to deter the indirect powers and the logistics of immanence [5]. Dotti understands Schmitt’s political theology as a decision that is only possible within a normative system in order to guarantee the authority of the state. The minimalist conception of political-theology stands as the antithesis of immanent factional ends, which, ultimately, reality will venge in the worst possible ways [6]. Adjacent to the modernist ethos against indirect powers, Dotti’s stages the copernican discovery’ of Schmittian thought: the autonomy of the political as the only category capable of defending the sovereignty of the state in an energetic manner without stepping into either a hyperpolitical or an apolitical vectors common to messianic and subjectivist positions. If for Schmitt there were few things more modern than the battle against the political, for Dotti the consecration of global postmodern time opened a crisis of the political and the expansion of the field of immanence which freely drives “por la autopista preferential de la corriente antipolítica” in which all politics is exception and all exceptions are treated as antagonism for the political [7]. The epochal dispensation of total immanence of power means a liquidation of the regulatory conception of the political as well as the formal recognition of enmity within the modern state now vested into the global fabric of Empire.
Dotti’s scene of writing is that of the closure of the eon of the liberal secular state from its very conditions that made possible the development of its genesis. It is in this specific sense that Dotti’s prognosis is similar to that of Ernst W. Böckenförde’s famous theorem: the liberal secular state survives by conditions that it can no longer guarantee [8]. For both Böckenförde and Dotti the epigonal process of secularization meant the end of state authority and the exhaustion of the separation of state legitimacy and the internal legal rules for social action. Dotti, however, introduces a minimal although fundamental nuance to Böckenförde’s theorem: the liberal state collapses not at the apex of the compilation of secularization, but rather at its very origins in the notion of revolution. This is a lesson extracted from Political Theology II: the ius reformandi of the ecclastical powers soon became an unlimited ius revolutionis of subjective domination during the nineteenth century. [9]. It is to this transformation that political theology effectively looks to respond to. In fact Dotti suggests that the category of revolution is the strongest force to be secularized, which entails that what paved the way for the modern liberal state becomes an open ended indirect force against all mediations of legitimate rule. As Dotti writes in his late essay “Incursus teológico político”: “Estado y revolución son inseparables en su complementación y en su simultánea oposición inconciliable. Esta relación es el cogollo mismo de la legitimación de todo orden político moderno: está en el origen y la muerte de la era de la estatalidad.” [10] The immanent force of revolution has no single figure: it is the movement against state sovereignty, the emergence of the total state in the twentieth century, as well the legal interpretation of statutes as idealistic forms (as in the jurisprudence of Robert Alexy) that intensifies a permanent state of exception whose real end is now a power for “definition, differentiation, regulation” as the tripartite form of political struggle. In this framework, the revolutionary spirit against formal mediation and authority can only take the form of an uninterrupted holy war against its enemies without end [11].
To the extent that revolution does not disappear but becomes unmatched immanent power, it becomes possible to understand Dotti’s central theorem in its proper light: “the problem with the revolution is not how to make it, but rather how to bring it to a close” [12]. There are at least two things we can say regarding the theorem: first, political modernity was fundamentally understood as the making of the revolution without any attention to formal mediation and the autonomy of the political; secondly, even the exponents of political liberalism during the second half of the twentieth century did not think of a revolution as closure, but rather they continued to foment an aperture based on a necessary retheologizaiton. It is in this way that John Rawls’ social state depends on a specific conception of original sin for equity; while Ronald Dworkin’s defense of principles and moral interpretative constitutionalism reintroduces a secularized form of the old iusnaturalist model. The socialization of the modern state at the historical instance of its eclipse had to pay the price of abandoning its commitments to both Pelagianism and positive law on behalf of a permanent exceptionality now dressed as the balancing of social equity. It is an irony that the two strongest attempts at the secularization of the concept of the revolution provided, in turn, a restitution of theological hidden subtleties that are ultimately optimal for the transformation of the rule of law into an instrument of world legal revolution. And, it is no coincidence that the closure of the eon of the state meant the end of exclusive legal positivism, while socializing the state police powers as compensatory for the collapse of the modern transcendental authority. The alleged neo-liberal state now subsists as an all encompassing administrative rule that mimics the practice of the confessional state. This could explain why today some jurists continue to understand the practical function of the administrative state as the concrete instance to constitute an uninterrupted iustitium. Dotti’s comprehensive and panoramic view of the modern tradition and its conceptual fulmination leaves open a task for future political thought: how would the closure of revolution might look like? This is no optimist question, as the only honest answer must depart from the farewell of the modern state, while also rejecting the substantive, doctrinal, and militant reallocations of power that steer, but never bring to an end, the violence of a planetary unity devoid of separation or enmity.
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Notes
1. Jorge Dotti. Lo cóncavo y lo convexo: los escritos filosoficos-polilicos (Guillermo Escolar, 2022)
2. Ibid., 133.
3. Ibid., 28.
4. Ibid., 174.
5. Ibid., 176.
6. Ibid., 26.
7. Ibid., 79.
8. Ernst W. Böckenförde. “The Rise of the State as a Process of Secularization”, en Religion, Law, and Democracy: Selected Writings (Oxford U Press, 2022). 167.
9. Carl Schmitt. Political Theology II (Polity, 2008 ), 101.
A rebuttal against the notion of enemy frequently hinges on conflating the enemy with total enmity. It usually takes the form of a hypothetical: once an enemy is declared as such, is there anything that can deter the escalation into total enmity? The historical record provides analytical reassurance to the hypothetical, but it does not eliminate its generality, since its ultimate probe is conditioned by an ideal of conceptual purity. Not every hypothetical is idealistic, but every hypothetical exerted from purity is. This concerns any understanding of politics, given that the notion of the enemy presupposes an impure origin of conflict, threats, disorder, or unjustified propensity towards evil. If the enemy is best understood as an operative principle between repression and totalization of enmity, it also entails a rejection of purity as sacralization of the political.
The argument from purity has been deployed with equal force by both Liberalism and Marxism, although they are not the only two contenders. Whereas the first suppresses the enemy from civility and economic utility; for the second, there are no necessary enemies given that politics is a process that will culminate in moral emancipation. For both Liberalism and Marxism, the problem of separation is fixed in two opposite poles: for Liberalism the separation is originary and consubstantial to the genesis of modernity as the separation of Church and State; for Marxism, the separation comes to end in the future collapse of the alienation of ideal and manual labor, and state and civil society. The argument from purity liquidates the enemy as the operative function because it doesn’t consider conflict intra muros on its merits. It is always surpassed or to come.
From the argument of impurity, the notion of the enemy demands that the political be understood as here and now (more than temporal it is topological: externality). Let us consider Shakespeare’s Hamlet. It is a tragedy that stages the friction between the suppression of the political enemy in medieval society and the not-yet autonomy of the political of the moderns. In an old essay Leo Lowenstein noted that Hamlet is an existential limbo as to whether to judge and execute his father’s murderer, or to desist in his decision of revenge and become paranoid crossing the line into madness [1]. The world of Hamlet’s indecision is no longer that of imperium theologiae where the enemy is an entity to be deposed of; but rather it vacillates because it knows the fracture between wrongdoing and action, legality and legitimacy. The malaise of Hamlet condition is the impossibility of enemy mediation: “Shakespeare’s theatre, in general, and his Hamlet, in particular, are no longer ecclesiastical, in the medieval sense. On the other hand, they are not yet a political state theatre, in the concrete sense state and politics acquired on the Continent as a result of the development of state sovereignty.” [2]. The intrusion of historical time reminds us that original separation will not be enough in the face of a concrete conflict.
The tragic dimension in Hamlet is given negatively: the paralysis of not being able to establish the proper mediation to deal with political enmity. This paralysis – or the inconceivable regicide of naturalist theologians – can only amount to madness. Indeed, one becomes one’s enemy, because the enemy (the usurper King) lacks the mediation with its exteriority: “Hamlet is of the faction that is wronged / His madness is poor Hamlet’s enemy…That I have shot my arrow o’er the house / And hurt my brother” [3]. What does it mean to be one’s own enemy, and who could decide here? The incapability of generating an external hostis will prompt bad consciousness and perpetual resentment.
From the side of impurity, the enemy as “one’s own form” means a depersonalization of the political and the neutralization of the stasiological force that places reasons, justifications, and actions as primary ends. But a civil war waged on internal reasons do not imply mediation. From the argument of purity the dismissal of the enemy is no longer Hamlet’s negativity; it turns itself into subjectivism and unfettered self-autonomy that will require not the judge but the priest, and not political form but the police.
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Notes
1. Leo Lowenstein. “Terror’s Atomization of Man”, Commentary, 1946, 7.
2. Carl Schmitt. Hamlet or Hecuba: The Intrusion of the Time into the Play (Telos Press, 2009), 51.
3. William Shakespeare. The Tragedy of Hamlet (Signet Classics, 1987), 168.
This Wednesday the Supreme Court of the United States will consider arguments in Moore v. Harper, coming out of the North Carolina State Legislature, which revolves around a specific doctrine: the Independent State Legislature. When the legislature of North Carolina tried to pass a new redrawing district boundaries for electoral purposes, the state supreme court decided against it, concluding that the map violated provisions of the constitution affecting free elections and the equal protection clause of the federal constitution. On other hand, the sponsors of the Independent State doctrine claim that state legislatures enjoy unsubordinated independence from the state supreme court, acting freely from the structure of state constitutions. The defenders of ISL doctrine “interpret” the term legislature as free-floating affirmation of constituent power when it comes to matters of voting under Election Clause of Article I in which legislatures decide on “the times, places, and manner of holding elections for senators and representatives”. Hence, ISL doctrine is fundamentally about political-theological question of ‘who decides?’ (quis judicabit) in the structure of federalism. But insofar as it is the question of ‘who decides’ it is also about what orients application today: ‘who interprets?’
When legal practice becomes open to interpretation each word immediately becomes a door. Each term becomes contested meaning as a free-floating signifier where balancing will ultimately serve particular political purposes. It is no coincide this ISL doctrine has come to the surface at this precise moment – after the 2020 election results – when, in fact, for most of the history it has been rarely used [1]. What does a floating and independent legislature power entail for electoral ends? What is of interest here is precisely how, in the name of a direct justification of constituent power (‘The People’), ISL represents a truly indirect power within the structure of federalism and state-constitutions. By name and function, indirect powers are understood as external interreference within a structure of stable organized powers. Now, the novelty of the ISL doctrine is that this indirect power emerges from within as it were, capable of upending judicial review and constitutional authority. The stability of ‘who will decide’ becomes an indirect power that, potentially, could even override state elections wherever political asymmetries exist between the legislature, governorship, and judges at the courts.
We know from the history of political thought that indirect powers (the undecidability of who will decide) leads to a stasiazon or internal civil war between the constituted powers. In other words, it is with the ISL doctrine that we can now see the true nature of what I called in the beginning of 2021 a legal civil war in Trump’s efforts to overturn the election results. A legal civil war is far more intense than the political partisan struggle of the movement – even if, at times, they can both cooperate as joint partners – since indirect force tries to ambush the constitutional organization of powers. The legal civil war of direct democracy comes full circle: unmitigated legislative force will constitute itself as the unstrained guardian of the question ‘who will decide’. For the champions of ISL doctrine legislature has no penumbra: it is always “We”. And it is no coincide that, as it has been shown by one of the great scholars of American federalism, a legislative supremacy once defended by Madison could allow for the “raising of every conflict to a constitutional crisis and civil war” [2].
In other words, what at first sight appears as total independence at state level actually facilitates its oppositum: the production of “standing” for higher courts litigation. Contrary to common opinion, the function of constitutional interpretation is full of cracks due to its brittle fabric: it allows for the indirect powers to be justified vis-à-vis the naturalism of the People as ‘original electors’ without mediations [3]. The historical irony cannot escape us at this point, since the American Revolution was waged against a legislature (the British Parliament) and legitimized through broad voting. This was the great innovation of Atlantic republican political theory. The question is whether a constitutional ‘interpretation’ could wage a battle against indirect powers facilitated by the revolutionary penumbra of ‘who will decide?’.
Infrapolitical Reflections 