Legal philosophy

Constitutionalism and sense. Text for “Legal Crisis in Chile” Session, Red May Forum, 2023. by Gerardo Muñoz

It has been said repeatedly – in the best hyperbolic spirit, no doubt – that Chile always stands, regardless of the angle from which we are looking, for what is to come in our epoch. The Chilean laboratory prefigures the coming mutations and solidifies the effective tendencies of public powers. The 2019-2023 political cycle is no different: it began with the experiential revolt at the heart of the metropolitan center, and it culminated with yet another constitutional scene seeking to replace the “constitución tramposa” now at the mercy of those that hold a deep admiration for the post-dictatorship subsidiary state. The newly elected advisors and experts will place the final cap to the momentum of institutional transformation, which welcomes back the official garments of public legality, official languages, and grammars of public security. And even if it is true, as Rodrigo Karmy has argued, that the most recent electoral results confirm the exhaustion of the Chilean post-dictatorship regime, the question posed to us is what capacity can constitutionalism and the constituent scene contribute for any possible transformation. [1]. In other words, can a breakthrough be produced from within the conditions of constitutionalism? As Martin Loughlin has recently demonstrated, our historical epoch is one marked by the irreversible triumph of constitutionalism; a design that differs from the modern constitutional state of representation and legislative legitimacy, envisioning an encompassing “dynamic order of an evolving society rather than an authoritative text, the basic ideals of constitutionalism have been realized” [2]. Constitutionalism emerges in the wake of the end of the liberal presuppositions of modern political theology and everything that it implies for the stability, separation, and judicial control of public powers.

The system of constitutionalism presupposes a total governmental nexus whose legality (discretionary, exceptional, based on the application of general principles / ius) will be treated as “an order of values that evolves as social conditions change” [3]. The passage into an administrative system of legal order presupposes a suture between principles and political necessity, state and civil society, economic rationality and executive planning and oversight. The old paradigm of the modern “dual state”, theorized by Ernst Fraenkel in the 40s have now supplied an internal abdication of positivist jurisprudence and minimalist constitutional framework, paving the way for the total constitutionalization as a flexible art of governance. Although it has been said that the first constitutional drafting of the new Chilean constitution was confusing and overtly ideological (a “magical realist” menu of rights and everything under the sun, one contemporary jurist called it), there is still something to say about the veneer of “social rights” within the epochal system of constitutionalism [4]. It is at times forgotten that the abundance of enumerated social rights implies the infrastructure of constitutionalism to bind legal, political, and social spheres into a regulatory apparatus without fissures. To govern the social means steering over the abstraction of social values. There are good reasons to discharge skepticism against constitutionalism, and they keep coming. Of course, the argument of skepticism, alas, rarely has good press (it fails to provide an insight into totality, Max Horkheimer famously argued), but I do think it is necessary to reclaim skepticism in the wake of the systematization of public constitutional principles [5]. Skepticism demands separation from constitutional absolutism and the legal nexus in which social action interaction finds itself. The skeptical position in the face of constitutionalism at its most minimalist bearing insists in the separation of life from law, of experience from political order, of expression from the order of rhetorical mimesis. The skeptic might not want to negative law as authority; but it wants to refuse the post-authoritarian conflation of life and social rule underpinning political domination.

To be able to see beyond the framework of constitutionalism is the task at hand, especially when the old predicates around the political subject and the social contract make their way back from a position of weakness and desperation (another way of saying that morality returns as nihilism). But one does understand its success: it is a compensatory psychic mechanism for the ongoing existential pain under the abstract orderability of the world. And where there is pain, there is also an accumulation of experience that pokes through the fictive state of things, refusing the objective staging of phenomena. Simply, it refuses to be absorbed by what’s available. At this point it becomes impossible not to recall the October revolt for one particular motive: mainly, that its emergence did not favor social demands nor was it driven by the grammar of a political program. Every experiential uprising has an aesthetic dimension – or even better, pictorial set up, a canvas of everyday life – that we have yet to rediscover. Painting from real life is no easy thing, some painters have told us. And something similar goes for the revolt: an alteration of gestures, inscriptions, graffitis, and corporal tracings, dissonances and masks color the expressive discharge against the pledge of objective realism and the police of languages. Indeed, pictorial skepticism can only emerge when there is an excess to representation; that is, when there is a sensible stubbornness to enter into contact with the unfathomable of the world as such. The world and its others, one should say. This pictorial dislocation of reality dispenses a rhythmic structure of the senses that is neither chaos nor destruction, but an arrangement of a different sort: the communication between souls (from soul to soul, Rimbaud had said) without regulatory mediations through the tokens of recognition and filiation. The rhythmic movements provide a spatial continuation devoid of justifications [6]. This is why pictorial semblance tells us something that language or the science of politics cannot. How can we last together as a community that is not?

Pictorial dislocation wants to claim distance and separation the non-totalizable while being there. Let us take a painting like Nicolas Poussin’s The Abduction of the Sabine Women (1633-1634): here we have a complex composition ordered around rhythms and modes of figures and distances; the possibilities of communication between forms and the expressivity of the figures hold everything as if in a state of grace. What is striking in the picture is the subtle mounting of activities and gestures without ever falling into the sublimation of the concept. There are no guidelines, and yet we feel that everything communicates. Or to put it in Poussin’s pictorial terminology: “what follows is unlearnable” [7]. I do not think that the painter tried to posit a negative foundation of knowledge for an even higher learning; rather the unlearnable is a practical activity (a gesture, a word, a contact) that is both unique and indispensable; impossible to let itself be arranged into a set of alienated function for a task. Poussin reminds us of the unknowability of rhythms taking place: an uncompressed experience outside the force of systematization. We need thought to incorporate something like this exercise in rhythm.

It does not come as a surprise that a conservative scholar during the first months of the October revolt hypostatized the event as a “gnostic program” claiming that: “Plato’s philosophy offered a simple solution to the agnostic problem: instead of adapting the world to our desire, the task is to adapt the soul of the world…we now know that public order is the our most urgent occupation” [8]. Needless to say, and as Díaz Letelier noted at the time, this was a political Platonism devoid of chōra as a nonsite of our sensible imagination that allows the renewal of the creative experience with the world [9]. There is no ‘common sense’ as the pragmatists of realism assert with conviction; there is only the sensorial passage allowed by the chōra. This is what constitutionalism needs to pacify and incorporate: the battle over the status of the soul at a moment in which material goods and its economic arrangement (and in the Chilean case, its negative subsidiarity principle) becomes insufficient for the psychic production of a rectilinear subject (a masculine subject, Alejandra Castillo would claim) [10]. The postliberal constitutionalism as it stands (and it is postliberal because it cannot longer said to appeal to an internal principle of positive norm nor to a source of ‘Higher Law’, but to the executive command of the principle); a world legal revolution of governmental administration of anomia, amounts to a systematic offensive that exceeds mere material appropriation or personal liquidation. And this is so, because its ultimate mission is the “soul murder” (seleenmord) that currently stands as the basic unit of the ensemble to govern over socialization [11]. Constitutionalism now appears as the last avatar of Americanism. Perhaps there is no higher and modest task at hand than affirming the medium of the chōra that preexists the submission of life into the polis, and which retains, like the pictorial gesture, the unlearnable and the unadaptive. Only this could slowly render another possible sense in the relationship between liberty and law.

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Notes

* This text was in preparation for the conversation panel on the current legal and political cycle in contemporary Chile with Alejandra Castillo, Rodrigo Karmy, and Philip Wohlstetter that took place in May 31, 2023 at the Red May Seattle Forum. The conversation is now archived here.

1. Rodrigo Karmy. “Ademia portaliana: algunos puntos para el “nulo” debate”, La Voz de los que sobran, May 5, 2023: https://lavozdelosquesobran.cl/opinion/ademia-portaliana-algunos-puntos-para-el-nulo-debate/05052023 

2. Martin Loughlin. Against Constitutionalism (Harvard University Press, 2022), 11-12.

3. Ibid., 161.

4. Pablo de Lora. “Constitucionalismo mágico”, The Objective, May 2022: https://theobjective.com/elsubjetivo/opinion/2022-05-07/constitucionalismo-magico/ 

5. Max Horkheimer. “Montaigne and the Function of Skepticism”, in Between Philosophy and Social Science: Selected Early Writings (MIT Press, 1993), 265-313. 

6. Rodrigo Karmy. “The Anarchy of Beginnings: notes on the rhythmicity of revolt”, Ill Will, May 2020: https://illwill.com/the-anarchy-of-beginnings

7. Avigdor Arikha. “On Nicolas Poussin’s Rape of Sabines and Later Work”, in On Depiction (Eris | Benakis Museum, 2019), 112.

8. Manfred Svensson. “Una revolución gnóstica”, The Clinic, November 2019: https://www.theclinic.cl/2019/11/25/columna-de-manfred-svensson-una-revolucion-gnostica/ 

9. Gonzalo Díaz Letelier. “Un platonismo sin khorâ”, Ficcion de la razón, December 2023: ​​https://ficciondelarazon.org/2019/12/04/gonzalo-diaz-letelier-un-platonismo-sin-khora/ 

10. Carlos Frontaura. “Algunas notas sobre el pensamiento de Jaime Guzmán y la subsidiariedad”, in Subsidiariedad en Chile: Justicia y Libertad (Fundación Jaime Guzmán, 2016), 123.

11. Ernst Jünger. The Forest Passage (Telos Press, 2003), 93.

Planetary subsidiarity: an observation on Luigi Ferrajoli. by Gerardo Muñoz

I recently attended a conversation around Luigi Ferrajoli’s most recent book translated into Spanish, Por una Constitución de la Tierra (Trotta, 2022), where the eminent Italian legal positivist defends the construction of a world constitution. The proposal is meant to be taken at face value; that is, unlike world constitutionalism and constituent revolutions models, Ferrajoli departs from the fact that sovereign states are no longer efficient to deal with international indirect powers. For him, a global constitutionalization of the Earth will bring about much needed juridical protection to natural resources, commercial, and migratory disputes that, unlike the already existing international law decrees, will generate binding guarantees between the different global actors. There is a sharp realism in Ferrajoli’s proposal in at least two levels: on the one hand, the insufficiency of state sovereignty is incapable of stable and long term adjudication; and on the other, the lack of guarantees of international law not only do not prevent serious violations of human rights, but also repeatedly provoke it for special interests. What legal positivism promises to achieve at the national level becomes the mirror of international principles that appeal to the concrete techno-geopolitical equilibrium of a historical conjecture.

Perhaps Farrojoli is not willing to admit it, but the crisis of legality is now best understood as the loosening of the formal mediation between principles and norms, which can only complement each other through the executive force and expansion of police powers. This explains why the figure of “equity” has become predominant in both domestic and international legal systems, since ‘aequitas’ is what allows a broad discretionary rule making and norm elasticity in any given situation. It is not difficult  to identify the crystallization of “equity” as the highest axiom that seeks to hold up the structural positionality of social order. But an unchecked legality – now fully detached from modern judicial review – becomes increasingly removed from the conditions of secularized liberal politics. In fact, police powers and principles of equity are no longer dependent on judicial review; on the contrary, it is judicial review that becomes adapted to the balancing of equity of social principles. Obviously, this can only unleash an unbound legal process that is no longer rooted in  judicial minimalism or countermajoritarian rule. 

I am not sure that Ferrajoli is able to escape this problem; in fact, he seems to aggravate it when claiming that what we needed today was “something like a global principle of subsidiarity”. That a great European legal positivist philosopher fully coincided with anti-positivist jurist Adrian Vermeule’s “common good constitutionalism” based on delegated bureaucratic powers of the executive’s discretion, confirms the deep crisis of contemporary legal thought. But such collision is expected, given that the principle of subsidiarity is at the center of a project like that of a constitutionalization of the Earth: the subsidium is no longer understood here as the secularized meeting point between belief and reason, but rather as a policing reserve required to intervene whenever an perturbance  in equity takes place.

It does seem that application of a principle of global subsidiarity rather than crafting a new principle of authority is the result of a “unity of the world” that has turned the world increasingly smaller given the large scales of technological integration, as Carl Schmitt understood early in “La unidad del mundo” (1951). And technological integration presupposes the capacity for total legibility and total transparency, and thus total extraction – it is not difficult to see here a homologous ambition in the Chinese civilizational principle of Tianxia. In this framework, the subsidium can only become compensatory to the ongoing malignant epoch where all authority fails, and thus, in the words of Joseph Roth, “performs  unworthy imitations…with barbarism and falsehood” [1]. A global constitutionalism can only exist through the ongoing production and consumption of mimetic debris; and this is the anomic make-believe that shouts that the world will be given to us in return. 

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Notes 

1. Joseph Roth. “Our homeland, our epoch”, in On the End of the World (Pushkin Press, 2013), 70. 

On clemency. by Gerardo Muñoz

The last mail that I received from my friend, the philosopher Emilio Ichikawa (1962-2021) before passing away stated the following: “Eres clemente, creo que esa palabra ya ni se usa”. Being clement (or ser clemente) has fallen in disuse, both in English and Spanish. One can only guess the reason as to why being clement or clemency has disappeared from a world governed primarily by force. It is notable that for Seneca in his treatise De Clementia (55 A.D) thought of the scope of this notion as precisely the preservation of the human political bond (vinculum) in moments of social disintegration. Speaking directly to the Roman rulers, Seneca argued that state power is never enough; there was also a standing requisite of clementia needed when dealing with weakest members of the social bond (membris languentibus) [1]. In modern legal discussions, clemency has not only disappeared as a practice, but been fully incorporated into the administrative function of the “pardon powers”; which, as we have seen in the last years in the United States, it has become a mere political token in favor of the powerful and not the weakest members in society.

On the contrary, it seems that the decline of politics and the full emergence of social administration presupposes a necessary forgetting of the principle of clemency. Perhaps a current Supreme Court case will suffice to bring this to light: a 94 years old lady, Geraldine Tyler evaded interest rates and property taxes for some years and ended up being expropriated from her home, which was immediately sold by the State of Minnesota for forty thousand dollars in order to charge her the fifteen thousand dollar fine, while keeping the equity surplus of the sale. The fact that the SCOTUS judges were not fully convinced of Minnesota state action and its lawyer (Neal Katyal), matters little to one fact that no one seems to have noticed: mainly, that the legal process has become main vehicle for injuries. In this framework, clemency has no place in in the statuary structure of public order.

Indeed, the main trait of the Americanization of ‘force’ is not just limited to physical or electoral stasis; rather, it is the motorization of legality without restraints. For every action that circumvents from public administration there is no possibility of clemency, but only subjection to legal rationalization through abstract principles of “equity” (passive exceptionalism mandated by costs and benefits models). And so, the clementia juris (the sweetness of law) as once imagined by Quintilian has been expelled from law, leaving behind only an obsessive legality that preserves an increasingly inclement schism of social life.

Perhaps “clemencia” as used by Ichikawa had nothing to do with politics; and, in a way, Seneca’s term in his treatise was already inflated by rhetorical functionalism at the service of the axiomatic order of socialization. There is a more originary sense of clemency – as the prefix *klei indicates – which is the clinamen that names the encounter (the Peitho) between the disinterested souls that freely subtract themselves from rhetorical force [2]. I would like to imagine that this is what Ichikawa had in mind when, instead of defining a concept, he appealed to an ethical disposition: being clemente.

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Notes 

1. Seneca. De clementia (Oxford U Press, 2009), 74.

2. Gianni Carchia. “Eros e logos: Retorica antica e peitho arcaica”, in Retorica del sublime (Laterza, 1990).

Hölderlin’s song. Provisional annotations. by Gerardo Muñoz

There is a moment in Hölderlin’s late hymn “Friedensfeier” (1801) where communication is strictly defined as becoming a song. The verses in question are about midway into the poem, and we read read the following: 

“Viel hat von Morgen an, 

Seit ein Gespräch wir sind und hören voneinander, 

Erfahren der Mensch; bald sind wir aber Gesang.”

“Mucho ha, desde la mañana, 

desde que diálogo somos y oímos unos de otros, 

aprendido el ser humano; pronto empero seremos canto”.

This is the Spanish rendition by the Venezuelan poet and translator Verónica Jaffé [1]. These lines stand for Hölderlin’s unique effort during the years 1800-1804 to substantially qualify what he had confessed to his mother as his true task: to live a serene or quiet life. I think this Spanish translation is much closer to the original German. Jaffé hangs on the present perfect with conviction: “Mucho ha…”, as if knowledge remained at a distance in the metric while becoming a temporal duration, a form of experience. This is the poetic “strict mediacy” for Hölderlin that can only be cultivated [2]. And it is only through the duration of experience that one will become a song (“seremos canto”). We are not yet there, hence the apostrophe. In the late period, duration meant dealing directly with Pindar. Thus, the song is something other than language – even if announced through language. But it is a paratactic dispersion that seeks to free the pure voice. In one of the “Pindar fragments”, this is what Hölderlin claims: “then only the difference between species makes a division in nature, so that everything is therefore more song and pure voice than accent of need or on the other hand language”. [3]

I am caught up in the moment of “division in nature”. The subtraction from representational language allows for the true appearance of a more originary separation, where the song can finally emerge in its proper attunement with the world. The becoming song is another form of separation, which institutes the passage from the Empedocles (tragic sacrifice) to the Pindaric relation to the divine. This is the “highest” poetic challenge for Hölderlin – an impossible task after the fleeing of the gods. It is definitely maddening. Nevertheless, the song remains. It puts us in nearness in a postmythical world without recoiling back to the image of the tragic. Indeed, as Hölderlin says in passing in “The Ground of Empedocles”, his time already “did not demand a song” [4]. The passion for natural unity was an Olympic illusion whose retribution could only become romantic debris as the exclusive possession of the dichter. On the contrary, the clearing for the song has emancipated itself from the exclusivity of the modern autonomy of dichtung as mimetically separated from the experience of life. This is what the song wants to pursue before the closure of a significant (and signifying) world. Fundamentally, this means a subtraction from the continuum of language, and thus a form of prophecy as elaborated by Gianni Carchia in a difficult passage from “Dialettica dell’immagine”: 

“Where music and prophecy, in the inexhaustibility of their tension – an endless effort to overcome the Babel dissipation of language by freeing the residual state of the unexpressed – testify to a disposition to meet precisely in what passes, in pure transience, the need for salvation and the idea of fulfillment, beauty as a totalitarian and exclusive appearance is, on the other hand, nothing but the product of an arrest in the dynamics of the spirit which withdraws from the horror of worldly laceration to seek refuge on the scene circular and static of the eternal”. [5]

If the song addresses the prophetic it is because language has fallen to the fictitious needs that arrest the experience of the human being into the exclusivity of rhetorical force and poetic genius. Is not the song a refusal of both? A refusal now aimed at the “highest” task – that is, the serene life? Against the exclusivity of appearance that Carchia points to, what appears discloses a different sense of law. A few verses in the same poem, in fact, we are confronted with the “law of destiny”: when there is serenity (or peace) there are also words. And a few lines after: “the law of love” is equilibrium from “here” to the “sky”. What appears there is the landscape that comes through in a pictorial depiction: “[Sein bild….Und der Himmel word wie eines Mahlers Haus Wenn seine Gemälde sind aufgestellt] / “[su cuadro e imagen….y el cielo se vuelve como de un pintor una casa cuando sus cuadros de exponen]”.

Does not this also speak to the insufficiency of language, which justifies the step into a folded painting? There is a painting and a vanishing image, but also the painter marveled at gleaming finished masterpieces. Is painting the original placeholder for the song as originary attunement of life? Perhaps. But in its enactment it also means that the song is impossible to disclose except through pictorial invocation. It is a painting of a life in the world, and nothing less. The transfiguration of the law places men no longer into undisputed submission, whether in its positive or natural determinations, but rather of a “strict mediacy” that is ethical in nature. A third way of the law that does not renounce the problem of separation.

Monica Ferrando has insisted upon the enormous importance of this conception: the fact that Pindar’s nomoi, in fact, relates to the nomos mousikos, which is fundamentally dependent on gathering substance of the song [6]. The strict mediacy finds itself between the mortal and the immortal. It is definitely not a “return to the state of nature”, and I do not see how it could be reduced to “genius”, except as an ethics whereby appearing is no longer at the service of objectivity [7]. Adorno was of course right: it is a ruthless effort to deal with disentanglement of nature – and the nature of reason – but only insofar as it is a return to the song. Or, at least, to have a path toward the song: a lyricism of the indestructible against the closure of a finite time dispensed and enclosed.

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Notes

1.  Friedrich Hölderlin. “Fiesta de Paz”, in Cantos hespéricos (La Laguna de Campona, 2016), Traducción y Versiones Libres de Veronica Jaffé, 93. I thank Philippe Theophanidis the exchange initial exchanges on these verses.

2. Friedrich Hölderlin. “Pindar fragments”, in Essays and Letters (Penguin Classics, 2009), 566. Kindle Version. 

3.Ibid., 565.

4. Friedrich Hölderlin. “The Ground of the Empedocles”, in Essays and Letters (Penguin Classics, 2009), 465. Kindle Version. 

5. Gianni Carchia. “Dialettica dell’immagine: note sull’estetica biblica e cristiana”, in Legittimazione dell’arte (Guida Editori, 1982), 21.

6. Lucia Dell’Aia. “Il Regno d’Arcadia: intervista a Monica Ferrando”, in Il mito dell’Arcadia (Ledizioni, 2023), 121. 

7. T.W. Adorno. “Parataxis: On Hölderlin’s Late Poetry”, in Notes to Literature (Columbia University Press, 1992), 148-149.

The metapolitical collapse. by Gerardo Muñoz

We had a very rich and productive conversation this week with Josep Rafanell i Orra around the new and updated edition of his book En finir avec le capitalisme thérapeutique (éditions météores, 2022). But here I just want to entertain an early moment in the book that has some importance for some ongoing discussions. In the introduction that he writes for the new edition, Rafanell engages in a rare and honest exercise in self-critique. This is what he writes:

“Dans mon livre, je défendais une politique du soin. Onze ans après, je me livrerai bien volontiers à une autocritique rétrospective : la politique me semble destinée, irrémédiablement, à devenir une métapolitique, si nous entendons par là l’inévitable ré-institution d’identités qu’il faut représenter. Retour éternel de la police avec la violence de ses abstractions. Je pense que la politique, le politique (que vaut-t-elle encore aujourd’hui cette distinction?) nous condamne à nous absenter des mondes pluriels de la communauté et à neutraliser les effectuations de la différence” [1]. 

A lot could change in a matter of a decade. Indeed, a lot has changed for some of us, and it seems that for Orra it is no different. He is willing to admit it. He is no longer interested in defending a “politics of care” (or a hyperbolic politics), and not because it has become a recursive cliché in the empty chatter of governing metropolitan progressivism (I think of NYC or Colau’s Barcelona), but more fundamentally because the full affirmation of politics today can only contribute to the ever expansive calculative scheme of representational politics; a representational enframing that has become defunct and emptied out with the rise of administrative rationality evolving from the internal premises of political liberalism. It is true that the liberal democratic project from its inception was too weak to deal with indirect powers, and its long-lasting solution has been to engage in practices of optimization and value dispensation. But no amount of social representation can minimize effective domination. No one could defend this except in bad faith. The destiny of politics now transformed into metapolitical saturation can only muster social existence into predatory lines.

But there is another sense in which the metapolitical collapse could be understood. At least this is where I would like to displace Rafanell’s lucid intuition: the metapolitical destiny of politics emerges in the wake of the fault line between the metapolitical conditions of politics and political representation and mediation as such. Obviously, this is the problem that, already in the 1960s, the German jurist Ernst Böckenförde had to confront in his now famous theorem: the liberal state lives through conditions that it can no longer guarantee or promote.

In other words, the metapolitical conditions required for secularization have evolved (now fully realized through the West with different intensities and semblances) into the collapse of society-state mediations, turning to police powers to maintain the ‘one piece garment’ of social life. Theoretically, the dissociation between politics and its metapolitical conditions has led to attempts at generating sedative hegemonies that are always furiously defended – even at the expense of their failures – through rhetorical bravado. So, the decline of metapolitical condition entails the passage from the conditions of social contact to the endgame of the flexible and coercive management of indirect powers.

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Notes 

1. Josep Rafanell i Orra. En finir avec le capitalisme thérapeutique (éditions météores, 2022), 21.

The ascent of the administrator. by Gerardo Muñoz

Today the political surface only seems to obfuscate the analyses of the real forces that move at different pace underneath the crust. When recently Emmanuel Macron referred to the popular unrest protest as “la foule…pas de légitimité face au peuple qui s’exprime souverain a traversé ses élus”, he was not only speaking as the sovereign, but as something more specific; that is, as an administrator. If the old sovereign stood metonymically for the totality of the whole constituent body, Macron’s political rhetoric cleverly distinguishes between the “groups” or “masses” (this is also the same term that Sigmund Freud deployed in his contestation to Le Bon’s theory of the multitudes in 1921), and the institutional mediation of the “People”. What is interesting, in any case, is the cleavage between the two figures becoming well delimited: one being on the side of political legitimacy, the other on its inverse pole of apolitical illegitimacy. The logistics of administration (or what I have called in recent research the administrative nexus) serves to conjoint this specific separation. By the same token, we should not let pass the occasion to recall that if Macron is a hyperbolic political commander of the West, it is precisely because he stands as the executive force at the helm of the administrative legitimacy (as a political elite, he was shaped at the École nationale d’administration).

What do we mean by administrator in this specific historical conjuncture? It goes without saying that modern French public law has a long and important history of droit administratif, which in France is structured around a dual jurisdictional system enshrined by an extensive legal case law and its juridical principles. The French system of droit administratif, however, is not to be understood as an amalgamation a posteriori of classical separation of powers, but rather a concrete institutional design within public powers. This was an institutionalist design that profoundly impacted Schmitt’s thought on the concrete order in the first decades of the twentieth century. The bureaucratic institutionalization was an integral organizational mechanism of legislative congressional practice. The rise of the administrative state differs from droit administratif insofar as it represents liquidation, as well as a thorough transformation of the modern system from within. In this sense, the rise of the administrative state is an excedent to bureaucratic legitimation – and Schmitt was right to characterize as the ‘motorization of law’, a force that he saw unleashing already in the overall tendency of European public law of the 1930s, although only taken to its fulfillment in the United States (something that Schmitt did not foresee) [1]. And if we were to sketch out a minimal phenomenological reduction of administrative law today we could state that it consists of the overflow of executive power through the exercise of the principle of delegation and the extension of intra-agency policy-police enforcement. What early on administrative law professors termed the revolution of an ‘administrative process’ has now come to full extension by subsuming the tripartite structure of the separation of powers to the administrative oversight of the space of social reproduction.

That Macron can only frame his political analysis in terms of “la foule” entails that he is already occupying (at least tendentially; and I can not speak myself for the concrete institutional transformation of the executive office in the French political system) and envisioning role of executive branch as a presidential administration. In an academic legal article that will exert an enduring influence in American public law, “Presidential Administration” (Harvard Law Review, 2001), Judge Elena Kagan stated that the era of executive administration had arrived; which rather than the supremacy of an institutional branch over others, it aspired to defend the orderly equilibrium to the total functioning administration of the whole system [2]. It is important to note that today’s ascent of the administrative state across the Western Anglo-Saxon public law is not rooted in maximization of bureaucratic rationalization nor in the authority of the charismatic office of a Reichspräsident as in the Weimar Republic (I have previously shown its difference), but rather in the production of delegation and deference of political authority that flows from executive power, while remaining bounded within a logistics of balancing and equity (in fact, the notion of equity has become the administrative unity of enforcing a positive production of exceptionality, but this is a discussion for another occasion). In other words – and as paradoxically as this may sound – the Macronite experiment with executive action based on Article 49 of the French Constitution, bypassing Congress, is a thoroughly habitual and normalized practice in the American legal system, which have led some jurists to claim a last farewell to the legislative body of the State – the same branch that Woodrow Wilson would describe as the ‘body of the nation’ in his seminal Congressional Government (1885).

All things considered, whenever Macron’s technocratic politics are described there is an amnesia to the concrete fact that Americanism is not just economic planning or the drive towards indexes of productivity and financial credit standards; it is also a specific governmental stylization. And this stylization is the administrative government, whose stronghold on public law should not be taken for granted. This means at face value that the empire of judges and congressmen (the “elected representatives” upheld by the Macron internal doctrine) is ultimately marginalized in the new center stage government occupied by an elite cadre of administrators and regulators in charge of grand policydesigns in virtues of expertise, rationality, adjudication, and compartmentalized decision-making process – that Kagan recommended should orient “a coherent policy with distance from politics and public opinion” [3].

Contrary to Macron’s republicanist rhetorics, the true and concrete ethos of the administrator is no longer at the level of classical modern political representation (elections, legislative body, judicial restraintment), but rather on the production of statute rulemaking balancing (equity) that unifies the aggregation of private preferences and calculations to the specific determinations of broad and discretionary public interests. At the level of the analytics of ideal types, this transformation sediments the passage from the political elite to the executive administrator of new normative indirect powers. The ‘americanization’ of Macron’s policymaking universe is centered on the exclusion of political governance or judgement in favor of abstract administrative principles (the so-called ecological transition tied to metropolitan or specific territorial energy hubs, to cite one example) and optimal regulatory determinations. What emerges at the threshold of modern republican politics is, then, the rise of a fragmented ‘la foule’ and the activation of police-powers (legality) through the procedures of statute enactment oriented at the unruly state of contemporary civil society.

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Notes 

1. Carl Schmitt. “The Plight of European Jurisprudence”, Telos, March, 1990, 35-70.

2. Elegan Kagan. “Presidential Administration”, Harvard Law Review, 114:2245, 2001, 2385.

3. Ibid., 2262.

Reformation and administration. by Gerardo Muñoz

The dispute concerning the legitimacy of modernity also implies the question of the reformation, which transferred the power away from the hands of priests into a new priesthood of everyman’s consciousness. This was the Lutheran self-affirmation of economic theology (it has been laid out by Monica Ferrando’s recent work). The new priesthood implied a consolidation of the power over interpretation, since the biblical sources were now opened to battle over meaning itself. The interests over the Hebrew sources were not new, as a contemporary scholar has shown, but it was of central interest to the hermeneutics of sola scriptura over the scrutiny of the canons [1]. If this is the case, how come Thomas Hobbes account of the religious sources point to a different dimension of revelation? As we know, Hobbes was not alien to the ancient Hebrew sources, but his treatment and conclusions were entirely misplaced. Here I want to briefly account for this divergence.

In reality, it was Carl Schmitt who best confronted this problem in a late essay form 1964, published in “Der Staat, “Die Vollendete Reformation” by asserting that Hobbes’ place in the constellation of the modern political theology of the reform was rooted in the invention of the autonomy of the political. Schmitt works his way through Hobbes’ second bibliography in a subtle way, reminding us that the theorem “Jesus is the Christ” meant the artificial creation of a political technique over the battle over “meaning and truth” that fueled the European wars of religion. Hobbes, contrary to the theologians, became the founder of a counter-power: the confrontation between Leviathan and Behemoth. Indeed, for Hobbes the “reformed theologian” stands as the Behemoth, but it has yet to come to terms with the question posed by Leviathan as who will decide. This is for Schmitt the kerygmatic theme of the New Testament, which will only be decided at the end of times, but meanwhile the decision through authority is the only way in which the problem of “civil war could be neutralized. As a commentator of his time, Schmitt was directing a direct arrow to Rudolf Sohm’s idea of reform, which ultimately coincided with an economic theology bypassing the fact that the era of concrete political theology had its ultimate principle in authority of the sovereign’s decision [2]. 

Although never registered directly, the lesson of Hobbes for Schmitt resided in circumventing the rationality of the scientist and the technocrat, going as far as to mention Simone Weil’s critique of the codependency of the total state with the essence of technology [3]. The question of decision was Hobbes’ metaphysical solution to an “intra-evangelical war”, which introduced the immanentization of indirect powers unto the flatten space of civil society. In other words, for Schmitt, the true father of the “spirit and letter” of the Reformation was neither Luther nor Calvinism, but Hobbes’ Leviathan insofar as it was able to offer a third option against the secularization of a universal priesthood of the autonomous economic theology. But this is only the beginning of the problems, since we know that Hobbes’ political philosophy was dependent on “civil society” preparing the conditions for the liquidation of anti-normative decisionism. Schmitt himself was aware of this towards the end of his monograph on Hobbes as a farewell to state form. Hence, the epoch of political theology was brought to an end not through reformation, but through the ever-expansion of the operative sphere of the concept of the civil. The triumphant economic theology that has only intensified well into our days adequates to the fullest extent to the infrastructure of Hobbes’s project. 

If this is the case, the differentiation that Schmitt establishes in Political Theology II between ius reformandi and ius revolutionis collapses, given that the solicitation of the autonomy of the social requires an ever-expanding outsourcing of administrative apparatus that will turn legality into the bin of administrative application (Verwaltungsrechts einzufügen unwissenschaftlich) [4]. And in the face of administration political theology loses its grip, and economic theology silently takes hold. The subsequent internal triumph of the verwaltungsrechts einzufügen will bring to an end the epoch of political theology. The ideal of the Reform took this challenge and brought it to the very anthropological core of humanity.

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Notes 

1. Eric Nelson. The Hebrew Republic (Harvard University Press, 2010), 8.

2. Carl Schmitt. “Die vollendete Reformation: Bemerkungen und Hinweise zu neuen Leviathan-Interpretationen”, Der Staat, Vol.4, 1965, 51-69.

3. Ibid., 66. 

4. Ibid., 67.

Von Balthasar and the eclipse of humor. by Gerardo Muñoz


Some will surely remember the figure of the painter Tirtorelli in Kafka’s The Trial who executes portraits of monotone and serious judges and magistrates on demand. The aura of these portraits is of absolute austereness and seriousness, as if Kafka wanted to capture the lackluster liturgy of the empire of judges and their repetitive exercise of legal adjudication. This seriousness, however, must be contrasted to the comic dimension of bureaucracy, that is known to anyone who might have glimpsed at the administrative processes that control even the tiniest details of daily life (the literary and cultural objects are too many to even reference them). The comic and the serious are also visual tones in the exhibition of modern public powers. If the empire of judges is gray and inexpressive, the bureaucratic agencies have been rendered as playful even if they repeatedly yield tragic effects on anyone entrapped in the legal construction of the “case”.

I recall this, because if today we are in the rise of an administrative state, this fundamentally entails a collapse of the bureaucratic comedy and the judge’s seriousness. The joining of the two spheres implies not only a transformation of the legal culture in the Anglo-Saxon tradition, but also a confusion regarding both the comic and serious that now form an integral techno-political unit. As humor eclipses, comedy becomes controlled, assessed, and weighted against what must be free-standing seriousness each and every time. This integralist institutional imagination, at first sight, could be taken as a return of theology of sorts; but, according to Hans Urs Von Balthasar, it is quite the contrary: the integralist suture is so alien to Catholic theology and the mystery that it only deserves to be taken as a distance from the divine. As Von Balthasar writes in Il Complesso antiromano (1974):

“For humor is a mysterious but unmistakable charism inseparable from Catholic faith, and neither the “progressives” nor the “integralists” seem to possess it—the latter even less than the former. Both of these tend to be faultfinders, malicious satirists, grumblers, carping critics, full of bitter scorn, know-it-alls who think they have the monopoly of infallible judgment; they are self-legitimizing prophets—in short, fanatics.” [1] 

And Von Balthsar reminds us that fanatic is a word that comes from fanum – “holy place” – which alludes to the site that the guardian must guard to keep the divinity at bay. In the same way today, the fanatic is the nexus that organizes the administrative process that covers all spheres of human activity and purpose. If this is the case, then one could say that our current society is “fanatical” not because of the new religious factions or outnumbering of social cults, but rather because new legal administrators exert their control in the guise of priests that speak the rhetoric of a social intelligible common good. This is, indeed, the ultimate comic aspiration of a very seriousness legal process (it impacts literally every living species) in which the precondition to safeguards the “good” must be exerted as to keep everyone away from the irreducibility of what is good, beautiful, and just.

The seriousness of the administrative agents is transformed into a perpetual laughter that secures a social bond where no transgression and sensation is possible. Against this backdrop, we see how Gianni Carchia was correct when suggesting that the passage from comedy to enjoyment (divertimento) renders impossible the laughter of redemption in a life that ceases to be eventful [2]. In this way, comedy mutates into a mere socialization of laughter. And the impossibility of entering in contact with the comic initiates the commencement of the social parody.

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Notes 

1. Hars Von Balthasar. Il Complesso antiromano. Come integrare il papato nella chiesa universale (Queriniana, 1974), 304.

2. Gianni Carchia. “Lo cómico absoluto y lo sublime invertido”, en Retórica de lo sublime (Tecnos, 1990), 153.

Karl Barth’s suum cuique. by Gerardo Muñoz

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.

4. Gerardo Muñoz. “El pretor romano y el ius honorarium”, Infrapolitical Reflections, 2022: https://infrapoliticalreflections.org/2022/04/24/el-pretor-romano-y-el-ius-honorarium-por-gerardo-munoz/ 

5. Ibid., 147.

6. Ibid., 148.

7. Ibid., 132.

The Independent State Legislature Doctrine as indirect power. by Gerardo Muñoz

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?’.

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Notes 

1. “Brief of Amici Curiae Professors Akhil Amar, Vikram Amar, and Steven Calabresi in Support of Respondents”, October 24, 2022: https://www.supremecourt.gov/DocketPDF/21/21-1271/243761/20221024133404048_21-1271%20Amicus%20Brief.pdf  

2. Alison LaCroix. “What If Madison Had Won? Imagining a Constitutional World of Legislative Supremacy,” Indiana Law Review 45 (2012):

3. Carl Schmitt. The Value of the State and the Significance of the Individual, Vinx & Zeitlin eds, (Cambridge U Press, 2021), 231.