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.
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.
Over the weekend, the Catalan journalist Enric Juliana interviewed Ramón Tamames, former member of the Spanish Communist Party (PCE) who embodies the living memory of the 1978 transition to democracy. Nowadays he is the main protagonist of the motion of confidence against the government coalition raised by the nationalist right-wing party Vox. There is no surprise (at least for those of us that follow closely the idas y venidas of Spanish politics) that a former member of the Communist Party makes amends with with the neo-sovereignist right. Even the Medieval jurist Bártolo de Sassoferrato centuries ago diagnosed that an epoch void of political authority, leads to a ‘monstrous form’ of arbitrary governance. This is not the place to analyze the cartoonish Vox-Tamames’ alliance. Rather, what generated a chilling effect while reading Juliana’s exchange was the moment when he asked about what he would have said to the communist prisoners in the Burgos correctional facilities in the aftermath of the Spanish Civil War. And, to this Tamames responded: “Están todos muertos”. They are all dead. It is a monstrous phrase voiced by a hyperbolic figure of the Spanish political elite. The answer is bold and lacerant because the message is stated without formal investidures or pathos: the dead are dead, and we own them nothing, since they are nothing. They are less than nothing.
It is no minor feature that historical communist parties during the twentieth century, in spite of the public and rhetorical monumentalization of their ‘heroic pantheon’, had little patience with the dead. This is why a motto in some socialist countries was, indeed, “los hombres mueren pero el Partido es Inmortal” (men died, but the Party is Immortal). So, by organizing immortality and the relation to the dead around the Party, historical communism was able to solve two problems at some: it was able to justify sacrifice in the name of a transcendent cause; and, at the same time, it introduced the dead corpse in Party as a government that kept operating even well beyond people had ceased to believe in it. I mention this because as a historical communist, Ramón Tamames is still embedded in this metaphysical enframing, only that now it takes different garments through a full erase of the dead that a posteriori justifies a concrete political action.
I have underlined a few times already the fact that Tamames is a trained political elite, because his alignment with Vox is rooted in his alleged elite credentials. This is an important feature. I remember a few years ago that Mario Tronti told me, in a Weberian spirit, that a new epochal transformation of Western politics required the elaboration of an elite in possession of vocation and conviction. But this is, paradoxically, what Tamames has always stood for, regardless of his political commitments. The problem is that today the restitution of political elitism is not only insufficient, but it is also visibly catastrophic and opportunist. It is opportunist because it can only self-affirm itself as a supreme value in the world of the living, which necessarily entails killing, once again, the dead. Under this light one should reconsider what Carl Schmitt enigmatically writes in his Glossarium: “elite is that category which no one dares to write a sociology about” [1]. It seems, however, that the contrary is true: sociology is the predominant form of political elite, since its final aim is the reproduction of material social relations at the expense of the dead. As administrators of the public life of the city, the political elite must hide the cemeteries and the world of the dead away from the arcana of its public powers (this is very visible in Washington DC or Madrid). This void demands a relation with the dead as a fictitious memory based on public memory, monumentalization, infinite naming, and cultural commodification in exchange for foreclosing the relation with the dead. This also explains why the epoch of high-secularization is fascinated with the investment of public memory and practices of memorialization which maintain the equilibrium and endurance of the society of the living against the dead.
And isn’t Tamames’ depreciation of the dead just an expression of the attitude present during the high peak of the epidemic across Western metropolises? The corpses amassed in registrator hums outside hospitals in New York was a monstrous spectacle that bore witness to the disconnect between the living and the dead in the triumphant epoch of absolute immanence. What is important here, it seems to me, is that one cannot but expect this from a “political elite”; that is, a denegritation and blockage from a contact with the dead that is neither in the home nor in the city, but in the khora or the extra muros. Whenever this has been achieved, the political consequence has been, precisely, punitive acceleration, social death or expulsion.
In a beautiful text written during the height of the epidemic controls, Monica Ferrando reminded us that the socratic philosophical ethos was not rooted in the space of the city, but rather in relation to the underworld that grants “freedom every time” [2]. In times gone awry, nothing is more urgent than to do away with the gatekeepers that keep society a total space of inmates, while making the whirling presence of the dead a silent echochamber between cemeteries, as a friend likes to put it. In a certain way, we are already dead, and it is only the fiction of political elitism (or the permanence of those that appeal to the “political elite”) that taxes death – and our dead – to the sensible modes that we relate with the mysterious and the unfathomable.
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Notes
1. Carl Schmitt. Glossarium: Anotaciones desde 1947 hasta 1958 (El Paseo Editorial, 2021), 351.
At his rubric at Quodlibet, Giorgio Agamben has recently reflected on the famous Goethe-Napoleon exchange on the destiny of human beings as entirely political. This theme is central to any observer of contemporary geopolitics, which as Carl Schmitt noted towards the end of The Concept of the Political (1932) was realized through the indirect powers of economy and war. During the interwar years Schmitt wanted to preserve the autonomy of the political at all costs, although he will soon conclude in his postwar writings that it was no longer possible given the full extent of a global police management (as he notes in the Italian prologue “Premessa alla edizione” to the 1963 Mulino edition).
What does it mean that politics has become the only destiny of Western Man? One could only imagine Goethe’s surprise at Napoleon given that he was the poet that most passionately reflected on the demonic opening towards destiny. Now, the fact that politics is destiny is a way to emphasize the dislocation of character from destiny as the search for one’s own freedom.
It is no surprise that it was another poet, William Butler Yeats who, in the dark hour of 1939, confronted this issue in his poem “Politics” published in his very last book. The poem in question is a sort of farewell to the eclipse of life of the soul constituting the releasement of destiny. It is also interesting that Yeats does not cite the Napoleon-Goethe scene recorded by Eckermann, and rather uses an epigraph from Thomas Mann to reiterate this preposition. The poem should be considered in its totality:
“Politics” (1939)
‘In our time the destiny of man presents its meanings in political terms.’ – Thomas Mann
How can I, that girl standing there,
My attention fix
On Roman or on Russian
Or on Spanish politics,
Yet here’s a traveled man that knows
What he talks about,
And there’s a politician
That has both read and thought,
And maybe what they say is true
Of war and war’s alarms,
But O that I were young again
And held her in my arms.
No destinial politics, however, can totalize the experience of language and thought. This is the crux of Yeats’ poem, it seems to me. In the opening of an epoch of catastrophic politics (as Unger would register it), it was a poet that resisted the metaphysical valence of political destiny working through the imaginal remembrance through the appearance of a “girl standing there”. The last poetic apostrophe of a caducous time could only be redeemed erotically; forever disentangling the fictive conflation of life and politics.
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.
There is a painting from the early sixteenth century at the galleries of the University of Bologna that depicts the gruesome death of Saint Cassian of Imola at the hands of his own students. The story goes that Cassian was a fleeing Christian in the Roman Empire who found a teaching position in the town of Imola, until he was discovered and exposed. In the saints’ hagiographies, it is emphasized his passion concerning reading and writing for his students. This would confirm the high price of Cassian’s punishment: torture and death at the hands of young students (some allegedly even brought their sharpened styli). The Bologna painting is, in fact, a miniature of about five by seven inches, and it depicts eight young students striking at a naked and tied up Cassian. The anonymous painter has chosen carefully to have all of the figures turn away from the spectator, except for a student in the far right corner of the painting who seems to be holding a sort of bowl in the air. He seems disengaged from the frenzied mob. And yet, there are no wounds or bruises in Cassian’s body, which could be an allegorical statement by the painter about the martyrdom condition, or, more literally, the plain fact that the cruel feast has just begun. Cassian’s face is monotone, and one of disbelief, but not yet of someone consumed by the ecstasy of bodily suffering. He is definitely humiliated amidst such violent and naked act. This is highlighted by the stage-like setting of the assault, which does not seem to be taking place somewhere outside, but rather in a strange room whose only way out is a dark and ominous black counter to the left side of the painting.
This black square immediately recalls martyrdom. And yes, in modernity this means David’s Death of Marat (1793) floating figure who stands as the secularized martyr at the year zero of modern representation. In the early modern bolognese painting we are far from there, but the resources at the painter’s disposal (myth, depth, and figure) speak to a postreligiousity at the threshold of a new historical time. Strangely, the figure of Saint Cassian as represented here by the anonymous bolognese painter throws a shadow to our present, given that the teacher or professor has been sacrificed, not so much the literal violence of his students, but by the an even greater disposition towards a shameless nakedness driven by value and a complicit abandonment of its mission. In the United States at least, the long dispensation of the “closing of the American mind” – driven by competition, ranking, placement, mentorship, cultural wars, and identity politics – entails the uttermost collapse of the teacher into the administrator and facilitator of a rather unknown enterprise.
Even in 1983 Carl Schmitt could identify the martyrdom of Saint Cassian as an emblem of the professor betrayed by his former students: “I have also been stabbed by my students”, he will confess to Lanchester [1]. So, just four decades ago the teacher could still stand as an object of fidelity and betrayal. It would be hard to make the case for this hypothesis today, since the pain of the teacher is no longer of betrayal, but of indifference insofar as he can be disposed of. In this sense, only something that possesses a certain aura can be said to be betrayed; while something that can be discarded altogether is something that has seen better days and no longer has value. And if universities and schools today have become larger centers of monotony and alienation of the most basic activities (such as discussion, reading and writing), this is because both students and professors have been, for the most part, replaced by “mentors” and consumers” under the holy contract of hypocrisy, the true and last ethics of the enlightened metropolitan class.
Anyone that has ever had the good fortune to encounter a good teacher or professor will know that his example springs not from what he knows or professes to know, but rather from what he can transpire unto others: to search of a form of one’s own path. The ethos of a teacher has little do with specialization or success, and everything to the incarnation of a gestalt that is not accidental or transient, but perpetually springing from its myth, as Carchia suggested for the work of art [2]. And myth is the sensorial mediation that resista to be instrumentalized into the endless amassing of value by the powerful administrative subjects. This amounts to saying that the teacher finds self-legitimization in its capacity to inspire the shared sense of wonder of the inaccessible.
Or, at least, this has been the teacher at its most groundbreaking moments. The eradication of teaching – which like mostly every other area foreclosed by the crisis of the human experience was unveiled during the years of the pandemic – and its complete abdication to models of “leadership” and “training” (under the fictitious rubric of the syllabus as an economic contract) is the bleakest of the futures that Cassiano could have taken. A nihilist future that, it goes without saying, will be void of martyrs and myths.
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Notes
1. Carl Schmitt. “Un jurista frente a sí mismo: entrevista de Fulco Lanchester a Carl Schmitt”, CSS, 1, 2017, 220.
2. Gianni Carchia. Il mito in pittura: la tradizione come critica (Celuc Libri, 1987), 155.
Erich Unger’s Politics and Metaphysics (1921), published just a year before Political Theology (1922), fully captures the spirit of the epoch: it is the moment when politics becomes catastrophic; a vehicle for war conflagration, an instrument for the acceleration of technology, and the spatial fragmentation of civil society and state. The overcoming of man through technology meant a new ‘reality principle’ in which the species were forced to adapt to an abstract process of catastrophic metabolic regulation. Unger’s essay, thoroughly ignored at the time of its publication, was a product of what in Political Theology (1922) was labeled as the force of indirect immanent powers. And from his side, Walter Benjamin, in his preparatory notes for his essay on violence, made the obscure remark that Unger’s Politics and Metaphysics (1921) ultimately favored the ‘overcoming of capitalism’ through errancy (at times translated as “migration”, which has been recently corrected by Fenves & Ng’s critical edition of the “Critique of Violence”) [1]. Indeed, in his short tract, Unger called for a “non-catastrophic politics”, which he understood as coming to terms with the problem of metaphysical structuration and positionality, and for politics to have a chance a principle of exodus was needed. This goes to show why Schmitt reacted against this spirit of the epoch, going as far as to say that his “concept of the political ” was the unified response to a sentiment of a whole generation, as well as the detector of enemies of the political demarcation [2]. In contrast, for Unger modern political autonomy had collapsed, and catastrophe now expressed itself as a civilizational problem of living forms, and so it demanded a confrontation with the problem of unity and separation of politics and metaphysics.
Politics is not metaphysics, but it had to be confronted with it if a non-catastrophic politics is to be imagined. This meant a new conception of the problem of “life”, which in Unger’s speculative philosophy received its historicity from immanence through the temporality of the tragic. The psychic separation between metaphysics and politics (a politics of the subject and subjection) meant fundamentally a catastrophic politics, which Unger read against the backdrop of the Oskar Goldberg’s Hebrew speculative reversal as a new re-constitution of the people (Volk) outside the fixation of the state. All of this is connected to his previous work on the stateless dimension of the Hebrew people in a short tract entitled Die staatslose Bildung eines jüdischen Volkes (1922). For Unger, the Hebrew prophetic rulers were not just a form of government, but rather also of healers, practitioners of a “techné alupias” of psychic intensification in the business of instituting an autoregulation between the metaphysical and the political.
The contrast with Carl Schmitt’s position is, once again, illuminating to say the least: whereas the figure central to Schmitt’s juridical thinking is that of the Pauline Katechon, the restrainer against the apocalyptic catastrophe; for Unger, no stranger to theological myth, appealed to a Parakletos of a universal People (Volk), coming to one as a single consciousness against unreality. The theological drama that informed the positions of both Schmitt and Unger, recasted the problem of separation the central concern of a particular thinking in a time of constituent power (and its infrastructure in the principle of civil society). But whereas Schmitt’s Katechon depends on an institutional mediation conditioned by revelation and authority; Unger’s non-catastrophic politics evokes a ‘people’ emptied of patrimony as reservoir of new energies for the unification of reality against psychic imbalance. Against the “relentless forms of domination”, Unger did not appeal to institutional mediation of the moderns, but instead to the interiority of the species that, in turn, required a “political principle of exodus”:
“The principle of the exodus can end the civil war and represent the presupposition for the emergence of real political units, thus putting an end to those centrifugal tendencies which are lethal for any real synthesis. This principle of separation of communities operates an external delimitation of the Material to give rise to a possible real unity. It now considers establishing the basic regulatory principles of its internal structure.” [3]
The principle of exodus of politics meant, all things considered, the opening the metaphysical order of the possible against what was understood as domination of the species within the paradigm of civil war. It is telling that for Unger, like for Carl Schmitt, the true force to be confronted is that of the stasiological force, or nihilism, as the condition for the catastrophic politics in the perpetuity of separation during time of finality (Endgultigkeit) in historical transformation. For Unger this was no easy task, nor fully passive and open to gnostic reversal. On the contrary, it is connected to “a kind of intellectual orientation required of anything who might wish to understand this reflection” [4]. This is ultimately tied to Unger’s most enduring idea in Politics and Metaphysics (1922) – at least for some of us that look with suspicion anything that the contemporary has to offer today, or that has ever offered – which is the metapolitical universities, not mere supplementary communities against the politics of catastrophe, but rather practical forms of encounter, languages, and exercises in thought that return the dignity to the shipwrecked fragments in the field of immanence.
Unger knew very well that there was no absolute “exteriority”, and so the defense of a metapolitical university was offered not as a “new political unit” of intellectuals leading the masses, but something quite different: the encounter of a finality that is not knowledge but “the effective treatment of the concrete” elevating itself from mundane understanding of social knowledge [5]. This is no collective practice either, since the discriminatory point assumes the internal perspective of the instance of “intensification” [6]. And intensification is not executed from the coordinates immanence of the social but rather as a ‘possibility of an elevation (Steigerbarkeit) capable of returning to reality against a non-catastrophic politics. For Unger the notion of elevation – necessarily to destroy the compulsory mimesis and automatic recursiveness of subjection – is predicated as a path of innerness, “that is, in the inclusion of originally alien psychical factors within a single consciousness” [7]. The metapolitical universities were, hypothetically, hubs for the concrete practice of elevation vacant of any universal pretensions of unreality. Here Unger, like Schmitt, does not propose an exodus from politics, but rather an elevation to a coming politics whose mediation is neither annihilation nor exchange, but rather the imagination and concrete practice of organization. The question, of course, is whether the politics of exodus today has not also collapsed to the catastrophic (no longer an exception to it but immanent to the logic of equivalence), which means implies a relocation: the practice of the metapolitical university, mutatis mutandi, now presupposes an exodus from politics.
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Notes
1. Peter Fenves & Julia Ng (eds.). Walter Benjamin: Toward The Critique of Violence: A Critical Edition (Stanford University Press, 2022), 92.
2. Carl Schmitt. Glossarium: Anotaciones desde 1947 hasta 1958 (El Paseo, 2019), 240.
3. Erich Unger. Politica e metafisica (Edizioni Cronopio, 2009), 87.
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.
In a forthcoming dossier on “common good constitutionalism” at the journal of the Universidad del Salvador (Buenos Aires), edited by the good offices of Guillermo Jensen, there is a featuring essay, “El concepto de marco normative en la obra de Adrian Vermeule”, by Pedro A. Caminos that makes an original attempt to read Vermeule’s legal theory from strong jurisprudential position, and it does so by suggesting that the ‘marginalization’ of the judiciary and the transformation of the administrative state (the Chevron paradigm) implies a normative framework, analogous to Martin Loughlin’s superlegality or Fernando Atria’s common norms (I would be tempted to also add to this list Scott Shapiro’s conception of law as planning). Although I agree with the normative framework in both scope and design of the constitutional theory, there are two underlying elements that I would slightly challenge for further discussion. The first element concerns the notion of tyranny, and the second one to the allocation of “politics” in administrative framework
First, towards the end of the essay, Caminos cites Robert Alexy’s rendition of the Radbruch formula in which no positive law can be tyrannical (or unjust) or it ceases to be legitimate law from an external perspective. For Alexy the conditions of intelligibility must answer not only to internal rules of recognition as positivism would have it, but, more fundamentally, to the challenge of the participant perspective, which is external to the rule of recognition. The problem with the Alexian antipositivist stance in Vermeule’s normative framework is that it would seem to come to a halt if the institutional design is constructed as “second best” safeguards for administrative decision-making. Indeed, the second-best optimizing rule is the same thesis defended in The Exeuctive Unbound (2010), which suggested that ultimate concerns for tyranny (trypanophobia) could ultimately serve the master that it seeks to prevent. To some extent the administrative state – if read from the internal point of view of executive power – is best understood as the optimizing and taming of presidential power through the normative framework. Now, it is true that in “common good constitutionalism” the emphasis against tyranny is counterposed by an objective morality proper to the ragion di stato, which explains why the “second best” optimizing rule is silently replaced by the determinatio that defines the construction zone of the praetorian decision making. The nuances here are important: whereas second-best optimizing rule has no moral purposiveness; the determinatio is by nature a moral discriminatory principle (ius). Whereas the Bartolist jurisprudence aims to tame the privately infused tyrannical forces for good government; the unbounded executive does not fear tyranny as long as it controls the immanent force of administration [1].
Secondly, Caminos derives from the normative framework the construction of a common legal space in which disagreements could flourish. And Caminos sees this as consistent with Schmitt’s concept of the political as the distinction between friend and enemy. But so far as the notion of enmity in The Concept of the Political moves through different determinations, it is an open question as to which determination are allocated or relevant to the normative framework. However, if what defines the “reasonable arbitrariness” of administrative adjudication is predominantly informed by cost & benefit analysis, it would seem that it is value rather than the political distinction the distinctive feature of its logic. This makes sense given the jurisdictional supremacy of the administrative state, which subsumed the legislation into the normative framework. As Carl Schmitt predicted it in his Tyranny of Values, in this context function of the legislator becomes that of a tailor of suturing and producing new mediations for value stratification [2]. But could one conceive the concept of the political within the values of administrative rationality? At the end of his essay, Caminos himself seems to think otherwise, and suggests that normative framework allows for a new conception of political friendship. Of course, in the regime of value administration friendship is defined first and foremost by those are “valued” or “devalued”. Ultimately, this would be strange conception of “friendship”, since, as De Maistre showed, the friend is always outside the margin of utility, and thus constituted outside value [3]. Hence the difficulty for an alleged new politics of friendship: either the concrete friendship is diluted into a “fellow man” (blurring the specificity of friendship) or embracing as friends only those that share common values that can be imposed to non-friends, but who are not recognized as formal “enemies”. This second variant is most definitely the common good ideal type. In either case, friendship and politics become two poles in the procedural organization of values: a hellish reality notwithstanding appearing as a ‘friendly’ paradise of values.
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Notes
1. Adrian Vermeule. Common Good Constitutionalism (Polity, 2022), 27-28.
2.Carl Schmitt. La tiranía de los valores (Hydra Editorial, 2012), 147.
3. Joseph De Maistre writes: “¿Qué es un amigo? Lo más inútil del mundo para la fortuna. Para empezar, nunca se tiene más de uno y siempre es el mismo; lo mismo valdría para un matrimonio. No hay nada que sea verdaderamente más útil que los conocidos, porque se pueden tener muchos y, cuantos más se tengan, más se multiplican las posibilidades en cuanto a su utilidad.”, in El mayor enemigo de Europa y otros textos escogidos (El Paseo, 2020), 212.
Infrapolitical Reflections 