In the broadest sense of the term, questions about the law are predominantly about its justifications, and more specifically about where to locate the act of justifying. That one of the most important elaborations of exclusive positive authority was dependent on a theory of justification to transfer norms of authority (a theory labeled the “normal justification theory”) goes to show that the traditional opposition between positive law as pertaining to the sphere of rights and guarantees and natural law to that of justification comes short in the understanding of the internal development of judicial reasoning in the second half of the twentieth century that unsurprisingly coincides with the crisis of the secular liberal state [1]. The reliance on a “justification theory” will imply not only a new conception of legitimation, but also the outsourcing of the self-referential determination of “Nature” through which Roman Law constructed its principle of the rule of law and the validity of adjudication. As we know, Roman Law did not speak of “justification” but rather of necessity emanating from Nature, which could not oblige to performance or act through by what by nature is impossible or wrong [Ius plurimis modis dicitur: uno modo, cum id quod semper aequum et bonum est ius dicitur, ut est lus naturale]. The natural source of law, as famously defined by Ulpian in the Digest, is in this way permanently tilting between the good and the equitable (ius est ars boni et aequi). This is a matter of first principles of the law (ius), which did not solicit “argumentation” or second order reasoning to uphold its internal legal validity.
The passage from natural necessity in the “hands of the priest”, in Ulpian’s conception, to the modern autonomy of justification takes place when principles are no longer the exclusive framework parameters for operative claims, but the very activity that defines the elasticity of an actual norm and its argumentation within a concrete positive order. This is one way in which one should define the specificity of the American practical legal order (not just its legal philosophies, which tends to run counter to this, cloaked under the vestigates of positivism vis-à-vis the letter and spirit of the Constitution) through juridical administration, whose structural polarity of command and justification defines the administrative process. Early in the twentieth century, Guglielmo Ferrero noted that one of defining characteristics of the American political model rested on a magistrate judicial power that fundamentally differed from European Common Law or positivist tradition in its practice [2]. Contrasting the independence of a limited bureaucracy to the predominance of an all encompassing “juridical administration”, Ferrero noted (although lacking the legal vocabulary to articulate it positively) that the administrative nexus will infinitely expand over social practical reasoning due to the unrestricted force of justification. And the need for justification is what outsources the ancient principles of natural law (ius) to the executive authority that renders operative every sphere of social action and interaction even if they are not explicitly declared prima facie by those principles. The efficacy of justification is the linguistic deployment – a rhetorical craft through rational argumentation – that will generate specific verisimilitude to the otherwise arbitrary and uncontested enactment of its principles. Justification could be said to appear as the work of language that provides internal cohesion of an array of coordinated conditions for secondary social actions.
Since the inception of modern secularization, the nature of justification is the realization of the works without end, which inverts the notion of “justification” in the theological sphere that we owe to Paul. For the Apostle the idea of justification or dikaiōsis implies the making of righteousness through the soteriological narrative of Christianity that subsumes humanity’s fall (sin) for a redeeming liquidation of law. This means that man’s just act in faith generates “justification” (dikaiōsis) of life for all people (Roman 5:18). And as we read from Galatians 2:6: “Know that a person is not justified by the works of the law, but by faith in Jesus Christ. So we, too, have put our faith in Christ Jesus that we may be justified by faith”. The force of justification (dikaiōsis) trumps the production of the works of law that divides human beings in the immanence of this world between the saved and the condemned, the free and the imprisoned, the friend and the enemy. Whereas justification in the theological sense can only imply the ‘end of law’ for righteousness (Roman 10:4), in its late secularized rendition it implies exactly its distorted mirror image: to justify is transformed into the binding force over the void of authority that renders effective the hollow machinery of its own self-validation.
It is telling that in an essay that was first published in German in 1938 under the title “Justification and Justice” (“Rechtfertigung Und Recht”), the German theologian Karl Barth takes note on the transformation of the State becoming “demonic” not due to its utter demise, but as a profanation of the theological justification of “unwarrantable assumption of autonomy as by the loss of its legitimate, relative independence, as by a renunciation of its true substance, dignity, function, and purpose…a renunciation which out in Caesar worship, the myth of the state and the like” [3]. The emergence of the “demonic nature” of the State was internal of its own making , since it conflated faith and people at the same level of social immanence, while preparing the actual realization of an authoritarian world without escape. Following Heinrich Schlier’s work on the figure of the State in the New Testament, Barth will suggest that this political totalization secularized the limit posited by the suum cuique of justification into an instrument of endless domination that characterized the emerging political reality. In fact, in his essay “The State according to the New Testament”, Schlier will define the phase of the demonic State as one colored by the inception of the sphragis, that is, “the sign of the state party as it were the secularized seal of baptism which levels all differences between men and only distinguishes between friend and energies of the ruling system. Those who refuse the new metaphysical slave are deprived of their economic foundations. Even economic life is directed by the spirit of the beast” [4].
Only in such context does the true light of the force of justification comes in full display: the sphragis can only labour to justify the vicarious social existence of the mystery of iniquity infinitely redressing itself as legal argumentation and juridical principles, administrative determinations and executive commands. And Schlier could not let the question pass: “What will Christians do in this situation? They will no longer want to have any part in this caricare of a state, they will “go out…they will simply be outlawed and persecuted” [5]. More than ever today, we are in desperate need of elaborating the elementary aspects of a political theory of demonology that defines a certain point where there is no turning back. To outlive persecution and tear the bond of justification shatters the civilizational course that has sublimated the end of time as an instrument of daemonic absorption into endless legal statues.
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Notes
1. Joseph Raz defines “normal justification thesis” of legal authority in this way: “I shall call it the normal justification thesis. It claims that the normal and primary way to establish that a person should be acknowledged to have authority over another person involves showing that the alleged subject is likely better to comply with reasons which apply to him (other than the alleged authoritative directives) if he accepts the directives of the alleged authority as authoritatively binding and tries to follow them, rather than by trying to follow the reasons which apply to him directly”, in “Authority and Justification”, Authority (NYU Press, 1990), 129.
2. Guglielmo Ferrero. “American characteristics” (1910), The Atlantic. 226.
3. Karl Barth. Community, State, and Church (Peter Smith, 1968), 118.
4. Heinrich Schlier. “The State according to the New Testament”, in The relevance of the New Testament (Herder and Herder, 1968), 236.
5. Ibid., 237.
Infrapolitical Reflections 