civil society

The wreckage of design. On Alejandra Castillo’s Antropoceno como fin de diseño (2025). by Gerardo Muñoz

Only in rare occasions the operation of thinking finds angular or lateral points of escape. This is the gesture that characterizes Alejandra Castillo’s theoretical writing, and is particularly bright in her most recent book Antropoceno como fin de diseño (La Cebra, 2025). The zigzagging entry is an intuition that is also a guiding thread: the force of real subsumption of capitalist domination depends on the operation of design. Of course, in design one hears not only blueprint and form, but also designation, and thus the specular regime of visibility, orderability, quantification. It is the world of physiocratic forestry. In fact, Castillo’s succinct definition of the metapolitical condition of design is offered to the reader at the entrance: “Design is the figure that thinks always in advance (por adelantado) (Castillo 12). Design calculates and locates. It is through the operation of design that legibility becomes adequated to political representation so that the state can manage and attenuate the deployment of its forms and the circulations of relations of totality (Castillo 13). The design is what is common to the worker, the engineer, and the lawyer. This is why design for Castillo design is an efficacious nexus that connects the separation of objectivity and the life worlds. Understood in this sense, “design” is analogous to the enframing of the world that intensifies in the age of technology and rhetoric. But in the watershed of the end of modernity, the hegemony of design collapses, while it becomes a temporal “self-design” submerged in all spheres of expressive enactments. 

The end of the second vector of the zigzag outlined in the essay is found precisely at this conjuncture: the anthropocene brings the humanist projections and design to a final wreckage. This is means that capitalist form is not formless because it has managed to subsume the time of life as exception to labour; time is a wreckage because design no longer coincides with the world of forms, as it has temporalized experience into total transparency without reminder. For Castillo this means that in the anthropocene there is no longer “struggle for visibility”, as everything has been rendered exposed and hollow; de-substantialized in the very fabric of subjectivity (in the early millennium some called this new hyperbolic figure the Bloom). Implicitly in Castillo’s writing is the assumption that the mediation between politics and design has been severed, and the new securitarian imperium can only immunize itself against the very site that in modern times granted its legitimacy (civil society, constituent power) (Castillo 37). 

The end of design means the absolutization of design, a new carceral imperative for adaptation that makes any claim to subjectivity an endorsement of the prison of the ego. To live in a post-designed unworldly condition means not only to come face to face with the homogenous space of cultural exchange into image; it is also a new imperative that requires that “you must submit, without knowing to what; subject to what is the case anyway, and which, as a reflex to its power and commonsense, everyone believes anyway” [1]. The end of design paves the way for new plastic forms of domination towards an integral planetary unity. 

Bordiga claimed throughout his work that the democratic design was perhaps the best fitting system for the versatility of capitalist accumulation and relentless expansion. This is why in all the political cases that Castillo introduces in a text in a manner of a shadow play do not pretend to offer a new theory of ideology, but rather show how democratic design is a one-piece suit that fits all without any needs for “ideal types” to fix normativity and institutional arrangements. Indeed, there is no longer anything like an “extreme political right” – and this is just a tweak from Castillo’s vocabulary, who does insist on the term throughout the essay – but rightward figures of the political that desperately cling to any form to distract from the abyss of social legitimation. Ultimately, the ruling over this void will be  – in many ways already is – the continuation of war in the social fabric; and stasis will require new stealth development of technologies of containment that Palantir’s Alex Karp has called the new “lethal form”. This means that democratic design is not only expressively a system of sentencing to death; it is in virtue of the exchange of social forms, an inverted negation of human finitude. The point of despair would incite some to look again in the cabinet of forms; a knee-jerk reaction to the irruption of the Anthropocene against the total sum of possible designs. 

Of course, this is also what Alejandra Castillo’s Antropoceno como fin de diseño (2025) avoids at all costs. Towards the last pages of the book, Castillo calls for a transformative turn that departs from the body; a corporeal insurrection that, in refusing the rectilinear and heteronormative political corpus of the modern epoch (no coincidence that Hobbes was both the founder of the autonomy of civil as well as of the physics of the body of matter in space), is capable of responding to the call of the anthropocene in all of its profuse conflictivity. Castillo proposes the necessity to gravitate towards a “maximum distance” against the general design of orderability of public domination (Castillo 77). But this can only be understood as an incommensurable distance that dissolves the ontotheological separation of subject and object of the state of confinement.

The political constitution of a corpus appears as the promise of an exit from the temporalization of the post-auratic literalism that, according to Michel Fried, dominated the structure of the object-oriented work of art, as compensatory to the corrosion of political forms and presentist autonomy [2]. Castillo does not seek to revive a last gasp of auratic objectification, which amounts to the sleepwalking condition of the image world of mere survival. In soliciting a maximum distance to what is closest (in fact, a body), Castillo invites us, as both promise and commitment, to think at the end of nondependency – not the “independence” that carries the traces of the fictitious individuality- from the crutches of design to finally conquer another liberty beyond terror and prevention; a life imbricated in the nonbeing of place (ecology) with others.

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Notes 

1. Thedor W. Adorno. “The Cultural Industry: A Resumé”, in Without Model (Seagull Books, 2023), 58.

2. Michael Fried. “Art and Objecthood”, in Art and Objecthood: Essays and Reviews (University of Chicago Press, 1998), 172.

The camp is still with us. by Gerardo Muñoz

Immediately after the end of the Second World War, the historian Emilio Roig de Leuchsenring published a thin book in Havana with the title Weyler en Cuba: un precursor de la barbarie fascista (Páginas, 1947), which made a direct connection between twentieth century political movement fascism and the lurking shadow of the Spanish general Valeriano Weyler, who commanded the intense colonial pacification against pro-independence insurrection at the end of the nineteenth century in Cuba. It is to Roig’s credit how he managed, toward the end of the book, to capture the actuality of what he called “weylerism” of full-fledged totalitarian and imperial wars against populations that did not come to an end in spite of international law and the several peace agreements of the Second War victors. For Roig the structural positionality of politics even in the years 1945-1947 was still maximalist, all encompassing the total conditions of living of populations, and thus a direct instrument of capitalist rent through war making. What he termed “weylerism” or the new fascist barbarism was a new qualitative leap in terms of conducting war, which now realized itself in terms of population control and the veneer of “order”: “Todo lo que Weyler representó y practicó está vigente en la posguerra” [1]. 

The idea of “peace” (the United Nations was settled in the fall of 1945 with the active participation of Cuba, something that Roig would not have ignored) could only signal the continuation of an extreme form of extermination and the dispensation of cruelty. In fact, the Weyler model (weylerism), was very much an administrative form of pacification of population through encampment and survival. In his memoirs, Weyler himself justifies “reconcentraciones” of the population as a martial solution to answer insurrectional arson activity, in the form of an exclusionary space within the territory even if this meant mass starvation [2]. As Roig does not cease repeating in his postwar essay, the actuality of Weylerian command is not an image of the past, but something that is already an essential part of the world of today and surely of tomorrow. 

Today we are living Roig’s historical future, and we can say that his Weyler en Cuba: un precursor de la barbarie fascista (Páginas, 1947) has become as current as ever before. Just a few days ago we heard the Secretary of Homeland Security of the United States claim that Immigration Detenter Center in Florida’s Everglades could become a model for detention centers across the nation thanks to its spatial efficiency near airport runways that facilitate deportation flights and extraditions without due process. As observed by Stephen Bonsal as early as 1897, the Spanish reconcentraciones in the island of Cuba enacted by Weyler’s military command were all deployed near key military strategic sites of the colonial army [3]. 

It comes to no surprise that in the current public discussion about Immigration Detention camps in the United States, the discussion always pivots towards health and sanitary management of the centers, and not in the “dislocating localizations” of these evolving zones d’attentes that now are propping up near airports, shipping ports, and hinterlands of American metropolises [4]. If the camp, or reconcentraciones, is the sharp image of ongoing domestication of human beings, as a great twentieth century writer observed, it might very well be that the current metamorphosis of Weylerinism has become victorious because it has been rendered acceptable by an increasingly indolent and dormant Society.

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Notes 

1. Emilio Roig de Leuchsenring. Weyler en Cuba: un precursor de la barbarie fascista (Páginas, 1947), 216.

2. Valeriano Weyler. Memorias de un general (Ediciones Destino, 2004), 257.

3. Stephen Bonsal. The real condition of Cuba today (Harper & Brothers Publishers, 1897), 112.

4. Giorgio Agamben. Homo sacer (Stanford University Press, 1995). 175.

Politics as our passion? by Gerardo Muñoz

Philippe Theophanidis has recently brought to my attention an emphatic statement in Dionys Mascolo’s Lettre polonaise sur la misère intellectuelle en France (1957): “La politique est notre passion. Nous en parlons, ne faisons que cela, et tout l’ennui du monde est dans ces dialogues-disputes, dans cette démarche perpétuellement contentieuse qui donne envie de s’occuper de n’importe quoi d’autre, de plaisanter, de se taire, de s’en aller” [1]. These are intense words not entirely divorced from a deep sense of desperation entangled with a commitment to realism – minimally understood as bringing into thought how things looked at the time. In a recent collaborative introduction to the writing scene of this group (preliminary work towards an upcoming seminar) – which included Mascolo, but also Duras, Vittorini, Blanchot, and other continental friends – we took into consideration how the heterogeneous and internal tensions were brought into bear in the effort to connect the creative act to the existential texture of communication and concrete world events [2]. 

Mascolo’s statement must be read as historically marked and situated, as who today could claim that “politics”, however broadly or loosely understood, is the exclusive “object” of our passion? Mascolo seems to have been aware of the subordination of passion into politics, leading to dialogues and disputes where nothing could facilitate the clearing of a way out. When politics becomes the final object of one’s passion it could only mean that the reign of chatter has liquidated our experience with the world. And it is at this point where the ‘missing word’ that attunes the search for one’s passion can regress as nihilism; that is, as mere force to steer rhetorical valence and representational exchange within the expansive intramural rules of civil society. Restricting one’s passion to the determination of politics merely inverts the order of modern legitimacy (i.e. the repression of passions by the interests), compressing both terms as a higher principle of politics. 

If at the outset of modernity contractualism suppressed the passions in exchange for sovereign security from the fear of violent death; in the attempt to elevate the passion to the grammatical height of politics, what is rendered obsolete is precisely the possibility of securing an existential site of freedom outside and beyond politics, that is, in the the nonplace of the passion itself. Of course, one could also read Mascolo’s apothegm in light of his revolutionary politics, in which the name of “politics” solicited the revolutionary emancipation of the civilizational alienation of the human species towards a transformative sequence beyond the scarcity of needs. But the problem of the category of revolution is that it remains tied to the very development of the legitimacy of the political and its erosion (for Edward Gibbon in Decline and Fall of the Roman Empire the configuration of the state is the crowning revolutionary event against disorderly barbarism), which the members of the Saint-Benoît Group were first hand witnesses in the postwar epoch.

I think this speaks to my suggestion that the assertion ‘politics is our passion’ was historically embedded; a sort of last breath of trying to hold onto the utopia that will soon crumble in every active paradigm of planetary order (postcolonial, Soviet state planning, European communism and social democracy). But at least – and this is what remains of interest, as I see it – the Rue Saint-Benoît friends had the courage to confront it in order to enact a farewell to the very assumption of ‘revolution’, which already in 1968 was clearly moot. In the words of Maurice Blanchot after the events of 1968: “…but from now on I will hold onto an exigency: to become fully conscious, and always anew, that we are at the end of history, so that most of our inherited notions, beginning with the one from the revolutionary tradition, must be revised and, as such, refuted. […]. Let us put everything into question, including our own certainties and verbal hopes. The revolution is behind us: it is already an object of consumption and, occasionally, of enjoyment. But what is before us, and it is terrible, does not have a name” [3]. Thus, to conflate “politics” as the passion could no longer offer solid ground in the intra-epochal interregnum of suspended historical time. Just a few years later, Duras will claim that politics had little to offer, since there is an “absolute equivalence between all political programs, and only right ideology seems to be able to do politics as such. We no longer believe in politics…there is only a burrow of hope. We must submit ourselves to the hard evidence of its total degradation” [4]. To dwell in a delimited burrow means a return to the rooting of place and new geographies beyond the temporal axis.

One can read both Duras and Blanchot’s elucidations of the collapse of modern politics and its negation (the ius revolutionis) as a corrective posture to move past Mascolo’s hope to make the unfathomable texture of one’s passion coincide with the object of a political project, even if understood as an archipolitics. But it is precisely in the abyss opened by a terrible and nameless epoch that a new light is casted on the free-standing and ungraspable nature of the passion; the irreducible law that establishes a contact between the ethical life and the world beyond objectivation as both excess and deficit of the tribulations of political order. Perhaps a modification to Mascolo’s thesis is now necessary: passion is what escapes every possible fall into the objective world, and for this very reason it is a ‘refusal’ of what the compensatory bond of politics can offer under the sermo humilis of stagnant artificial utopias. There is no political passion just like there is no political friend, since both friendship and one’s passion remains always objectless, only mediated by the overcoming of the preconditions of fear and of delegated life. In Manuale di sopravvivenza (1974), Giorgio Cesarano will claim that passion was the name of the coming historical program of a sensible presence resisting the “annihilating force of social objectivation” of the world [5]. And the Italian poet will define the passion as the sacred taking possession of the return to appearance. A transformation of politics could only emerge after one’s passion could finally prevail experientially against the terrible and nameless (and unnamed) world organized towards planned obsolescence and generalized humiliation. And it goes without saying that we are still very much our predicament. The caesura between passion and politics has now become spectacularly absolute and irreversible.

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Notes 

1.  Dionys Mascolo. Lettre polonaise sur la misère intellectuelle en France (Éditions de minuit, 1957).

2. Gerardo Muñoz & Philippe Theophanidis. “¿Por qué volver a la Rue Saint-Benoît? Conversación sobre un seminario, Ficción de la razón, February 2024: https://ficciondelarazon.org/2024/02/26/gerardo-munoz-y-philippe-theophanidis-por-que-volver-a-la-rue-saint-benoit-conversacion-sobre-un-seminario/ 

3. Maurice Blanchot. “On the Movement” (1968), in Political Writings 1953-1993 (Fordham University Press, 2010), 109. 

4. Marguerite Duras. “Entrevista en A Fondo” (1979): https://www.youtube.com/watch?v=XmnVBenAoyw

5. Giorgio Cesarano. Manual de supervivencia (Kaxilda, La Cebra, 2023), 75. 

Emergency and the abdicating liberal executive. by Gerardo Muñoz


Over at the newspaper Perfil, the constitutional scholars Andrés Rosler and Guillermo Rosler have an excellent critical analysis of the omnibus emergency decree (“Decreto de Necesidad y Urgencia”) proposed by the newly minted Argentine President Javier Milei, which has the alberdinian ringtone in its title “Proyecto de Ley de Bases y Puntos de Partida para la Libertad de los Argentinos”. As members of his cabinet have described without vacillation, the aspiration of the legislative package has the high aspiration of enacting a true political revolution in the name of unmediated “civilization freedom” against the institutions and mediations of the state. Rosler & Jensen make a good case that Milei is far from being the ‘founding father’ of the instrumentalization of executive emergency; and in fact, at least since the the transition to democracy of the 1980s, Argentine executive power has increasingly become a normalized standard of broad executive decrees against the letter and spirit of Article 99 of the Argentinian Constitution. As a matter of habit and precedent, the exceptional character of the emergency decree over time has sort of become the supra-institutional norm of governance, thus blurring the state of emergency from the normal course of institutional mediations and consequential remedies. Paradoxically, Milei’s revolutionary force expresses more of a continuity with the collapse of the liberal modern state than a counter-revolutionary seeking a strong formal stabilization between the economic interests and state functions. 

As an addenda to Rosler & Jensen’s illuminating piece, I wanted to register the symptomatic and perhaps unique paradox of the revolutionary executive command; mainly, that at the same time that it discharges an ambitious and total encompassing legislative omnibus bill for the emergency, its purpose differs from the classical conception of political decision that seeks to harmonize a strong state and a sound economy, as Carl Schmitt famously argued in the 1930s. Indeed, Schmitt argues in “Strong State and Sound Economy” (1932) that authority emerges from success and achievement between the spheres. Now this success presupposes not only the effective deployment of state institutions (“the constitutional legalization of new institutions”), but also that the autonomy of the political system guarantees the separation between the unity of the state and the plurality of civil society [1]. This means that even if Milei’s libertarian ideal of a strong financial state is taken at face-value, the betrayal on the autonomy of the political reveals the feeble dimension of his executive force; a self-defeating overreach that, similar to the ways of the Trump presidency (2016-2020) in the United States, ends up revealing the executive weakness with respect to the conservation of the autonomy of the political [2].

In other words, by disdainfully acting through an unbounded economic ideal to disarm the state, the executive also abdicates his energetic capacity to reorganize the chaos from partisan, ideological, and economic interests in the long run. In his proposal to the business class to consolidate the authority of the state, Schmitt advised about the necessity of a robust and independent neutral bureaucracy for legislative deference and operative allocation of reasonable decision-making regulations. This allows us to differentiate another structural disparity between the Argentine and the North-American forms of executive power: whereas the first tends to maximize the power of its office through a vicarious political charisma that leads to its own abdication; the hamiltonian energetic executive (Federalist 70) has drifted towards a process of abdication or self-evolving expansion and containment within the principal tracks of a gigantic administrative apparatus. The picture in question is, of course, one of paradox: this means that the presidentialist model of the Latin Americanist design, at least broadly speaking, differs substantially from the energetic American model, precisely because every attempt to enact hegemonic force ultimately shrinks the overall reach of the administrative execution. Hence when Rosler & Jensen write about the executive that “…nuestra Constitución no adoptó un modelo de ejecutivo fuerte de impronta alberdiana, con amplias facultades, sino que se inspiró en el modelo norteamericano en donde este tipo de decretos no existe”, they only partially give capture the full picture. In other words, the contrast is not merely at the level of executive forms of potestas (executive order without Congress authorization and “Decreto de Necesidad y Urgencia”), but also, and more importantly, at the very capacities for abdication and abnegation of delegated power within the two institutional arrangements where the administrative institutional building from within plays a fundamental role in the functioning of formal liberal political designs. 

In fact, if we are to follow Rosler & Jensen’s astute intuition that Milei is nothing new under the sun, we could say that his executive habits, now cloaked under extreme commercial faith of the “invisible hand” of the market, follows to the letter the political tradition of the liberal criollo political class that the republican theorist Juan Bautita Alberdi criticized in the nineteenth century. As he wrote in his posthumous writings: “Argentine liberals are platonic lovers of a deity they have neither seen nor known. Being free for them does not consist in governing themselves, but in governing others. The position of the government: that’s all about freedom. The government’s monopoly: that’s all about liberalism…Liberalism, as we have to respect the discontent of other officials against us, is something that does not fit into the head of an Argentine liberal. The dissident is an enemy; the dissent of opinion is war, hostility, which authorizes repression and death” [3]. In this strong cautionary denunciation, Alberdi’s well-crafted portrait of Liberalism has at least two conjoined features that adds sharp historical relief: the deficiency of Liberalism was always the aspiration of unconstrained freedom (of interest) suppressing the autonomy of the political and dissent (the enemy), while increasing the frontiers of government over the space of civil society. In effect, the sovereign exception (broadly applies to Latin America) can be said to have been an exception to neutralize the very condition of exceptionality constitutive of sovereignty’s exclusionary political theology.

This will remind us, at least axiomatically, that Saint-Just’s maxim that a government ruled by hegemonic underpinning tends to produce only monsters and absolute enemies meets the truth of a historical pathology. In a wider panorama of Latin American political thought, the ideals of Liberalism have only fomented the administration of political stasis or civil war over the spiritual unity of constituent power in which the state and its institutions have been too fragile to overcome throughout its different renditions (the criollo oligarchic state, the national popular, the socialist welfare state, and the openly revolutionary socialist states) [4]. In contrast to the constitutional ‘royalism’ of the original North American republican organization of public powers and its abnegating executive office (a war of independence waged against the British Parliament), taking a look at contemporary presidential power allows us to derive the different compensatory strategies in confronting the collapse of the legitimacy of the modern legislative state [5]. The so-called “revolution of freedom” (with the consumer citizen at the center stage of the always unfinished and ongoing coercive consent required by the passive revolution) mandated by the executive against the institutional fabric is ultimately a renewed attempt at conserving the root and branch of the hegemonic logistics at the heart of the region’s post-independence apparent state and its rocky historical development.

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Notes 

1. Carl Schmitt. “Strong State and Sound Economy: An Address to Business Leaders” (1932), appendix in Renato Cristi’s Carl Schmitt and Authoritarian Liberalism (University of Wales Press, 1998), 221.

2. I argued for this position in several publications a few years ago, see for example Gerardo Muñoz, “¿Se avecina un momento Weimar en los Estados Unidos?”, La voz de los que sobran (Chile), November 2020: https://lavozdelosquesobran.cl/opinion/se-avecina-un-momento-weimar-en-los-estados-unidos/07112020 

3. Juan Bautista Alberdi. Escritos Póstumos: Del Gobierno en Sudamérica (1896), Vol.IV, 188.

4. The continuity of stasis at the foundation in the region is something that can be derived from Rafael Rojas’ historiographical contribution Los derechos del alma: ensayos sobre la querella liberal-conservadora en Hispanoamérica 1830-1870 (Taurus, 2014)

5. Eric Nelson. The Royalist Revolution: Monarchy and the American Founding (Harvard University Press, 2014). 

Name and Liberty. by Gerardo Muñoz

Back in the fall of 2020, we discussed a book entitled Intifada: una topología de la imaginación popular (2020), written by Rodrigo Karmy, which considered the implications between the forms of contemporary revolts for the common imagination. It has been said with good reasons that the health-administrative controls deployed during the COVID-19 brought to a halt the high tides of revolts against the experiential discontent in the social fabric. The wearing out and domestication of experience has proved, at least for now, its stealth efficacy and unilateral success. However, what some of us did not see at the time was that this energy over protracted containment was also being waged at the very substance of language. This has now come forth in the wake of recent events at university campuses where administrative authorities, opinion writers, and legal analysts have suggested that a particular word, “intifada”, should be proscribed and effaced from campus life. One should not waste time considering the etymology, semantic reach, and political deployment of this term – for this there is already Karmy’s elegant and dense articulation of the term.

What has completely gone unnoticed in the current chatter about “intifada” is the fact that the full realization of a “rhetorical society” entails, necessarily, an ongoing preventive civil war over what is perceived as “sayable”. This means that containment does not only reach to the moment the realization of action (and its reason or justification of an act); but rather that it fully extends about what might be said potentially. The various calls – on the left and right, from the legal analysts to the pundits and some of the academic administrations – against “intifada” is not merely substantive (or at least it does not stop at this specific threshold); it is a preventive reaction against the very possibility of the name and naming. The act of naming is intimately related to the exterior events in the world; therefore, the proscription of naming is one more step in the domestication process in which the human specie is tore not only from establishing a contact with the world, but also incapable of accessing it through the specific density of naming.  

The paradoxical situation of this interregnum is that, on one hand, the collapse of modern political authority that founds the Liberal State (non veritas facit legem) as an overcoming of language and truths, has led straight into the rhetoric inflation where naming is sacrificed and language codified into a second order normativity that imposes arbitrary obligations on what is licit and illicit. This is why the First Amendment of the United States Constitution – and total constitutionalism writ large – becomes the construction zone that allows the contingent justification of “time, place, and manner” under the civil right of “freedom of speech”, which turns naming into an ominous and terrible shadow; an unwarranted apostrophe. The almost anecdotal proscription over “intifada” reveals the heteronomic dominion over interiority; that is, over the possibility of saying.

I can recall how Quentin Skinner told some of us at Princeton years ago that a fundamental characteristic of unfreedom, broadly considered, begins when you think twice about whether it is convenient or prudent to say what you think. Of course, I do not think he favored a position of imprudence and generalized cacophony. I take it that he meant that the end of liberty begins when the possibility of naming disappears: “Between the motion and the act falls the shadow”. Fixation and transparency is the evolving grammar of the day. Can language subsist in such an impoverished minimum overseen by the general governmental logistics? As a preamble, one can say that in the current moment any conception of liberty begins with the opaque exercise of naming.

The nursery social state. On Pablo de Lora’s Los derechos en broma (2023). by Gerardo Muñoz

The crisis of the liberal legislative state is almost as old as the very project of the modern liberal state itself. And if we are to believe Carl Schmitt, the rise of the supreme values of the French revolution and ‘human rights’ (with its corollary of universal recognition within its normative system) also meant walking the fine line from the political theology of generative reform to the nihilism of ius revolutionis commanded by new discharges of individual will, political and technical movements, and immanent forces bringing the collapse of the separation between state and civil society. We are still living under its protracted shadow, albeit with a different intensity and intent. In his new book Los derechos en broma: la moralización de la política en las democracias liberales (Deusto, 2023), Pablo De Lora co-shares this point of departure, while daring to suggest a new sequence after the collapse of modern political form and legal order: we are currently living under a particular epochal transformation that is anti-legalist (sic) in nature – precisely because of its surplus of legal motorization – that erects a “nursery state” for the totality of the political community’s reasons and justification for action (De Lora 23). 

Although De Lora case studies shown are almost entirely derived from the Spanish and Latin American contemporary social contexts, I do think that his sharp diagnosis could be extended to the epoch itself without blurring the important nuances. This is an epoch of a reigning “emphatic constitutionalism” (Laporta) or the total Constitution (Loughlin), at the same time that it no longer takes too much effort to imagine a political community devoid of a legislative body, as one eminent constitutional scholar has said repeatedly [1]. We are already here. In other words, whether by excess or deficit, the overall purpose of moral driven legislation announces the internal transformation of modern politics as we know it, extending itself to a civilizational regression from the ideals and norms of the Enlightenment rooted in the fiction of the citizen, the binding of the social contract, and the invention of the principle of sovereign authority.

De Lora does not quite says it in this way, but I think I am not diverting too much of his cartography when extracting some of the central consequences of these internal moral substitutions that are palpable everywhere across the West: ecological legislation that increases social conductivity and expansion of natural destruction; ‘feminist’ anti-sexual aggression that leads to lowering of sentences for convicted sexual predators; the inflationary instrumental use of “Human Rights” for persons and things, but only defined narrowly by those that, under the thick haze of institutional hegemony, can deprive their political adversaries and enemies of the most basic legal guarantees of due process transforming them into non-persons. These ‘moral substitutions’ is part of the “ironic” and “futile” consequence of the sacralization of morality whose end is the management of the “social model” at all costs. According to Pablo De Lora, within the limits of confronting a social dilemma such as disability, the specificity of the “case” is turned on its head; what matters is the overall structural design of the social order and its infinite adaptive changes (De Lora 71-72).

This mutation generates all sorts of unintended consequences when the rhetoric of “social benefit” takes the lead. As De Lora writes: “No hay apoyo anticipado a la discapacidad mental sin reconocimiento de que el discapacitado mental no puede ejercer su autonomía en el futuro. Dicho de otro modo, la institución de las voluntades anticipada de la lógica desideratum de modelo “médico” de la discapacidad mental que se rehuye en beneficio del modelo social” (De Lora 85). And in spite of normative incoherence within an institutional system, the deflection to the “social model” requires ever-expanding commands, rules, principles, and hyper-amendments to guide the adverse proliferation of reasons for action within the social state (in the United States this is soften by the police powers of inter-agency statutes of the administrative state through cost&benefit balancing of discretionary principles under the supervision of the executive branch). This transformation entails the collapse of the internal mediation between the validity of norms and its foundation in social facts as in the classical construction. Thus, the expansion of value-driven legislation that also requires of specific adjudicative constitutional theories, such as legal interpretation and the theory of balancing of principles advocated by Robert Alexy, the sponsors of social neo-constitutionalism, but also the embedded dialogic ideological positions of constitutional scholars such as Roberto Gargarella (or in the United States context, the work of Mark Tushnet and the so-called anti-originalist ‘living constitutionalists’).

All things considered, the fundamental problem for De Lora is that this specific transformation enacts what he calls a “Estado parvulario” or ‘nursery state’ that he defines as: “El que denominado “Estado parvulario” da pábulo a que el poder público, en sus diversos instancias y encarnaciones, escamotee las realidades y consecuencias que conllevan algunas discapacidad per oa que lo haga de manera internamente inconsistente: tratando a los menores como adultos, pero sólo simbólicamente, y, en cambio, de manera efectiva, a todos los ciudada como menores, congénitamente desvalidos, incapaces de encarar la realidad” (De Lora 87). In the framework of the nursery state within its specific moral legislative apparatus, children become adults and the mature civil society regresses to an infantile stage. And like in a nursery setting, the democratic virtues pave the way for new dramatic effects where the function of rhetorical annunciation – so central for the any credentials of moral hegemony – forecloses the void between morality and politics in the wake of the unification that the social model requires to begin with (De Lora 89). 

This slippery slope can only lead straight to a sacralization of the political system that runs co-extensively with the infinite expansion of social rights; which, in turn, leads to an ever increasing conflict over the assumptions regarding its social facts (De Lora 151). In this narrow form, De Lora is audacious when citing Martin Loughlin’s recent indictment from his Against Constitutionalism (2022): “En la era de la Constitución total, el gobierno bajo el imperio de la ley ya no significa el gobierno sujeto a reglas formales independientemente pulgadas. Significa gobierno de acuerdo con principios abstractos de legalidad que adquieren significado sólo cuando son insuflados con valores…” (De Lora 188). And we know perhaps too well that values cannot be reasoned, but only weighted; values are commanded and taxed on the permanent devalorization of other values. This is why the rise of the value fabric of constitutionalism coincides with the ‘weighting’ proportionality of principles of law’s ideal social efficacy, to paraphrase Robert Alexy’s influential position as claim for “anti positivist legal justice” [2]. The nursery social state cannot be corrected merely from the position of the legislator; it can also be tracked as a triumph of moral jurisprudential theories of law that seek to overcome (and provide answers) to the overall crisis of institutional authority that characterized the so-called ordered liberty of the moderns. 

Is there anything to be done beyond a description? It is quite clear that Pablo De Lora’s ambition is not so much the proposition of a new political or legal philosophy as much as the sketch of the current epochal predicament in its current practice. This is already enough to welcome a robust analytical discussion of our predicament in Los derechos en broma (2023). However, there is a cobweb of affinities in De Lora’s own position towards the end of the book that, even if not fully developed, must be registered as a mode of conclusion. First, there is an affinity with John Hart Ely’s deferential conception of judicial power that aims at overseeing the procedural mechanism for the democratic deliberation and legislation over a hot-button issues. In this vein, De Lora shares Akhil Amar’s position regarding the overturning of Roe in the Dobbs’ decision; a conception that fully embodies judicial deference to diverse legislative majorities [3]. Secondly, De Lora favors a judicial minimalism associated with the doctrinal theory sponsored by James Bradley Thayer over the practice of judicial review of the Court (De Lora 233). And last, but not least, De Lora sees transformative potential in John Rawls’ assertion in his late Political Liberalism (1993) that the use of public reason is a comprehensive doctrine to deal with our fundamental disagreements and contentions over shared political values (De Lora 241).

I am not sure how deep or for how long does De Lora wants to go with Rawls; however, it is important to remember – and specially given the treatment of the ‘social model’ in the morality presented in Los derechos en broma (2023) – that insofar as social paternalism is concerned, Rawls’ late liberal political philosophy at the heart of the crisis of the secular liberal state amounts to a political conception that, as Eric Nelson has brilliantly shown, abandons the commitment of individual non-cooperation or refusal to cooperate with unjust moral legislative burdens, and thus making everyone stuck in the same ship [4]. This ship is the management and balancing of the totalization of the values being trafficked in the Social as ‘egalitarian’, although they are fully endowed as a seterological scheme of “election” (and who is elected) balanced by secondary compensations.

On a larger canvas, if the current political structure is defined as a nursery state of social rights, then this means that appealing to ideal positions of justified reasons, “diaphanous” deliberation, and well crafted citizen arguments belong to the age of maturity of the Enlightenment, but not to the stage of social infantile disorder. And demanding political qualifications to the contemporary citizen today is not only naif, but at odds with what what institutional thinking requires. In other words, the concrete transformation of the post-liberal state is one of permanent optimization of conflict, which is why John Gray has lucidly defined the (contemporary) ‘new Leviathans’ are “engineers of the soul” with broad and sweeping capacities to govern over every inch of the social space [5]. In the wake of these institutional mutations, the call endorse a “moral critique” might be taken as a post-enlightened lullaby that among the blasting and striding cries of infants of the nursery will most likely just pass unheard.

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Notas 

1. Adrian Vermuele. “Imagine there is no Congress”, Washington Post, 2016: https://www.washingtonpost.com/news/in-theory/wp/2016/01/11/imagine-theres-no-congress/ 

2. Robert Alexy. “The Rationality of Balancing”, in Law’s Ideal Dimension (Oxford U Press, 2021), 122.

3. Akhil Reed Amar. “The end of Roe v. Wade”, The Wall Street Journal, 2022: https://www.wsj.com/articles/the-end-of-roe-v-wade-11652453609 

4. Eric Nelson. The Theology of Liberalism: Political Philosophy and the Justice of God (Harvard U Press, 2019), 164.

5. John Gray. The New Leviathans: Thoughts After Liberalism (Farrar, Straus, and Giroux, 2023), 5. 

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 gnostic 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.

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).

Persuasion of the surround: a reply to Andrés Gordillo. by Gerardo Muñoz

The friend Andrés Gordillo has generously sustained an ongoing conversation in light of the talk delivered in Mexico on institution and immanence (a first reaction could be read here). In a recent note he brings many elements to the table, and his versatile writing makes it difficult – alas, this is a wish come true for any reader – to locate an univocal point of entry. This is perhaps because there is none. Andrés wants to keep us at the edge, and so he enacts the set up: there is communication, and because communication is the event of language, there is still the possibility of mystery. Many things already pop up here, but this might be doing injustice to Andrés’ elaborate draft. So, for the sake of the exchange, let me open the route by running through a moment that impacted my first reading. It is this moment: “El desencuentro que aviva la amistad de ambos personajes [Narcissus and Goldmund] es el de haber decidido resguardarse en la exterioridad de sus elecciones, ahí donde son obra del amor”.

This is a condensation of what the Hesse’s novel means to him; or, rather, how it speaks to him in light of a discussion regarding the dominance of the civil principle, and the question of an experiential dimension that we defined provokingly as a minor transcendence. I am not sure I am in the position to unpack Andrés’ thesis, if it is a thesis at all. I do remember a couple of years ago an exchange with Alberto Moreiras on the logic of the encounter and the misencounter related, precisely, to the problem of the eclipse of experience. This is the problem that keeps soliciting thought; it is the problem of thought itself.

However, I am getting ahead of myself. Andrés stages a complex framing: there is friendship as absolute difference (or in virtue of a fundamental misencounter), and then there is an exteriority of their existential decisions; that is, in the manner that they are irreductible to their being in the world. I spoke of framing purposely, since I find myself these days with Pablo Picasso’s “The Blue Room” (1901) from the early period that I encountered in Washington DC. It is a rather small picture – and to the viewer, the semi-statue like nude, a female figure it seems, comes to the forefront sliding downwards. A mysterious resonance dilates between things – and indeed, the objects in the room (the sheets, the rug, the bouquet of flowers, the paintings, the half-open window) feel like things. This is an intimate surround at the threshold of catastrophe, where things could be lost at any moment. And we know that epochally they soon were.

We are in a strange setting – and if it is strange to us it is because there is a sense to which alienation and solitude here is the fundamental harmony of dwelling. This is not yet the assumption into plain and continuous historical time that will amass things into objects. The “Blue Room” (1901) inscribes esoterically the thematics of pain – it is a work in which Picasso responds to his friend Carles Casagemas’ suicide that very same year. No metaphorical or allegorical reading will do the job to put us in “The Blue Room”. In the wake of an elliptical death, pain stands in, like the nude the water basin, as the irreductible to history and the menacing social sphere. I will bounce this to another moment of Andrés’ text: “Por ahora me siento inclinado a conversar: avanzar hacia un umbral que se desploma”. This ‘crumbling threshold’ now appears to me as a sound and prudent description of what “The Blue Room” (1901) was able to achieve. An experiential awakening against the conflagration of modern historical time: soon enough – and boy was it soon – the interior space of “The Blue Room” will multiply into infinite cells of the planetary designs in which social man will be just a potential inmate. This is why Picasso in 1901 speaks still today a strange language for us – it discloses a surround, an exteriority that we have been deprived of. It is a surround that is fully folded within.


If pictorial practice is not mere representation, but also, more fundamentally, a form of thought, then we can claim that “The Blue Room” (1901) attests to the proximity of the misencounter of friendship that outlives in the experience of the surround. And here the painter had no privileged position – he is no figure of genius, no commander of historical destiny, no magician of forms. He is also a befallen figure because he is the cipher of life. But to overcome the rhetorical surplus of socialization requires techniques in the face of the irruption of pain. Nothing less solicited Carlo Michaelsteadter when criticizing the reduction of the “man of society” to the pieties in “exchange for the tiny learned task and his submission, the security of all that human ingenuity has accumulated in society, what he would not otherwise obtain except by individual superiority, the potency of persuasion”, he wrote in Persuasione e la rettorica, another masterpiece of the 1900s. Yet, persuasion requires to be vigilant at the moment where things enter the historical penumbra and its rhetorical artifice; the reign of endless confusion amidst the most transparent and disingenuous computations.

How one becomes persuaded within a tonality, and remaining to be so – this is also a surrounding mystery of “The Blue Room” at the outset of the century. We still dwell in its dissonance.

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 rhetoric, 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.