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.
Michalis Lianos’ Direct Democracy: The Change Towards Holistic Politics (2022) defines itself as a social manifesto to confront the transformation of the nature of political power, public institutions, and the tradition of political representation inherited from the Enlightenment and the French Revolution. This is something that Michalis Lianos – one of the most interesting sociologists of social control of his generation – had already alluded to in his writing during the cycle of revolts of the Yellow Vests in France [1]. In more than one way, Direct Democracy: The Change Towards Holistic Politics (2022) is an expansion of this intuition; although, unlike most manifestos, the book does not take up the tone of denunciation and rupture, but rather of extreme prudence to construct and adequate itself to the complexity of our contemporary societies to a new regime of power distribution and individual empowerment. The total political alienation from public deliberation and participation is, according to Lianos, what stands in the way of people’s common interests. Institutions, political parties, the formalist separation of powers, and the legislative bodies (now in the hands of administrative agencies and corporate firms) have been radically disconnected from people’s lives to the point of becoming endogamic in its practices of decision making and public governance.
No one today can doubt the univocal distrust on all things political (a sentiment dating back to the Romantic age if we are to believe Carl Schmitt) which reminds us that the most interesting social insurrections in recent times have been against the democratic neutralization of the specific metropolitan and capital organization of administrative power. In the face of this schism, Lianos proposes a move towards direct democracy that can short circuit these institutional actors and partisan interests in order to revitalize people’s empowerment. The realization of direct democracy presupposes – and this Lianos’ propositional reinvention of the unity of politics – what he terms a new ‘Holistic Politics”, which he understands as a new civic attitude and a culture between citizens in a “holistic away, as a whole” (Lianos 2022, 2). The aim is to empower and lower public and private decision making at the scale of people’s life consistent with “social trust as the key for a happy collective life” (Lianos 2022, 3). The operative notion of Holistic Politics is, then, both a model of institutional design through the problem of scale; and, at the same time, a reassessment of the epistemological grounds of social action. In other words, for Lianos Holistic Politics should not be oriented towards putting the right answers in any social project, but rather to “ask society the right questions each time” (Lianos 2022, 9). We presume that what is “right” in the “right questions” point to an existential need of the whole, since given the plasticity of Holistic Politics, it cannot appeal directly to neither social facts (since these are always changing) nor a stable legislative agenda of higher representatives (there are inexistent for direct democracy). Regardless of these specificities, Holistic Politics does impose a need that the direct democracy will demand a greatest individual and community participation on fundamental issues raised by the social assembly list of objectives as raised by anyone in the community.
Lianos defines the problem of mitigating social issues within the framework of Holistic Politics in this way: “Holistic Politics recognizes that the most basic political process is the equal right of anyone to put forward issues for discussion and decision. So it is constantly vigilant to ensure, with specific measures that wherever exercises power is required to give answers as to the issues and priorities raised but never to ask the questions or influence how they are put. Issues are raised and ranked in order by the citizens themselves” (Lianos 2022, 15). Lianos is aware that every form of established institutional behavior ends up becoming a social habit (it has what some political scientists called, at least years back, “institutional stickiness”) , and this is why rules for immersion in social interaction must change on a regular basis (Lianos 2022, 17). It is true that rules are the infrastructure to limit social actions (this is, in fact, its unlimited possibilities); although, it begs to ask to what extent the regular change of social rules do not become in itself a habit within the very logic of exchange that defines structurally the social. To put it in different terms, it is insufficient to think, as Lianos does, that capitalism is a concentration of all entities into money form; rather, it is because there is an anterior civil form of exchange that the problem of value always emerges as an indirect force against the unit of the political (Lianos 2022, 21). If one changes the lens from strict capitalist exchange to the problem of value, then it becomes clear that what first appears as an alteration of rules in social facts could, potentially, constitute itself as an aleatory imposition of values, where the “happy life” of some could amount to the valorized “hellish life” of others. Holistic Politics in the same way that it does not say anything about values, it remains silent about the problem of institutions, even though institutions are far from being part of the stagnation of representative democracy that Lianos wants to surpass.
The central question for Holistic Politics is whether it can do the heavy lifting that it promises to accomplish. Can Holistic Politics really open up a way out of the current poverty of the species in the wake of social and civilizational collapse? Lianos seems to be aware of this question if only in passing, as he writes on the subdivision on “Foreigners”: “Holistic Politics is an approach for the entire human species at its present stage of development” (Lianos 2022, 41). This ‘present stage of development’ of the human species remains largely unqualified, and Lianos takes the route of geopolitics and the necessity to overcome the classical separation of powers. But to the extent that we are taking recourse to the human species, there is a fundamental topological and territorial dimension that we are sidestepping too quickly. At bottom the human species is a creature that steps on the Earth crust, and which today have been designated in relation (whether included or excluded) to the metropolitan regime of concentrated and amalgamated reserves for production and consumption [2]. We can say that this is the last expression of civil nihilism: the capability of putting to work; or rather, of the power to put into energy certain elements in any given structure of exchange. And we are barely raising the question here that lingers from Lianos’ assumption. It suffices to say that the spatial composition of the human species today is erased from Lianos’ Holistic Politics, which is raises enormous doubts as to whether a social assembly, the rotation of social rules, and the redesigning of democratic voting can really do the heavy lifting for what is required for this “moment” of the human species. If this is so, then Lianos’s Direct Democracy has not moved past the Atlantic republicanist tradition that placed voting and participation at heart of the democratic polity (this is the heart of the Federalist, as Sanford Levison argued a few years ago). Holistic Politics in this outlook is probably the last residue of modern politics now grafted into the regime of social organization. But we would like to be as precise as possible about this affirmation.
Towards the end of the manifesto Michalis Lianos argues that Holistic Politics brings the individual and society face to face (Lianos 2022, 114). But if this is endgame of Holistic Politics it is also where we found ourselves in the gridlock of social denomination as an extensive (and intensive) regime of adaptation; of forever changing norms, of arbitrary rule making and rule erecting, and governing through contingent situation through the balancing of cost and benefit rationality of social cohesion. In this sense, the conception of the “overall point of view of the social experience” can describe the social composition, but it cannot transcend, as alteration and changing based on needs and values is already folded within it (Lianos 2022, 90). I take it that something analogous could be said of the problem of equity and proportionality in relation to adjudication and the rule of law in the paradigm of Holistic Politics, since what has triumphed in advanced societies of the West is not the fossilized conception of the separation of powers and the empire of judges and courts, but rather the expansion of equity and balancing of principles based on a cost & benefit rationalization to adjust and transform always already mutating social facts (Lianos 2022, 105).
Insofar as it is committed to the primacy of principles of equity and balancing, Holistic Politics does not breach the current framework of value distribution for specific ends of social reproduction (Lianos might say that his ends are better and stronger since he has done away with political representation, but we are also aware that there is an autonomy of value that can be operative on the borders of the political, in fact, it no longer depends on the political unit). There is an interesting discussion by Lianos on the question of failure and social expectations in Holistic Politics – to take up failure beyond the economic penalties and social mortification of the current neoliberal regime – that open up new possibilities only insofar as we move then from and against the infrastructure of the civil exchange principle for social action. Perhaps the realism that Direct Democracy (2022) appeals to has also something to tell us here, since the current collapse of the social regime is one in which failure is abundant, regularly optimized, and rendered productive through forms that accrue greater and intensive force of valorization. But can the irruption of failure in Holistic Politics be taken as a hole within the scheme of valorization? Perhaps it is in this schism where the question of the present stage of the human-species and a politics of experience can be posited against the grain of total social subsumption. The task of a different democratic imagination should depart from this void.
In his chapter on the radical theology of abundance and ethics of Karl Barth, Mårten Björk discloses a central concept to the reformist theologian: the suum cuique, a term that prima facie could be rendered in natural law definition of legal justice, inherited from Roman lawyer Ulpian, as “may all get their due”. In the thomist tradition the legal notion of epikeia promptly became equity as the moral supervision of law’s principle (ius) understood as the application of the fair and the objective good. The justification of the balancing of aequum became a regulatory mediation on the grounds of a fictive principle of nature as moral reasoning, which has been well documented by Stephen Humphreys [1]. What makes Barth’s drawing on the notion of suum cuique in his interwar pamphlet Church and State (originally entitled Justification and Law, 1938), on the contrary, is precisely that it is not reducible to equity, but rather as Björk explains it: “the limit to our life, a limit brought forth by death itself, is in the end the vast chams that posits the creature as create of God…and this has ethical and political consequences” [2]. This is telling, and my aim here is to supplement the discussion in “Abundance and Scarcity” by showing its radical asymmetry with the reasonableness of the natural law. Barth’s anti-activist Church (although not neutral in the wake of the total state of the 30s) and apathy towards morality, stands as a sui generis bearing.
First, in the moral natural law tradition of equity (epikeia) “giving each one their due” becomes a strict legal-authoritative command principle on the reasonableness of nature centered on the ontology of the person. It is quite the opposite for Barth who does not favor a constant moral adjudication, since the separation between Church and State presupposes a previous divine justification that belongs exclusively to the Church, but not to the state. In fact, law practiced on the condition of natural principles will undermine the authority of the liberal positivist state, which Barth defends vehemently, making the case for its coherence with the teachings of the New Testament: “The democratic conception of the state is justifiable expansion of the of the New Testament…Christians must not only endure the earthly state but they must will it as a just state, not as a “Pilate” state” [3]. It is not surprising, then, that Barth wrote this tract openly defending the authority of the modern positivist state, contrasting it to the anti-statist unjust pretarian judgement of the trial of Jesus. This makes sense given that the pretorian ius honorarium could be understood, at least in part, as belonging to the tradition of the moral balancing of equity between morality and norms (just as the two irreducible kingdoms) [4]. Barth’s defense of the positivist state is even contrasted to natural law, which for Barth is incommensurable with the word of God: “We cannot measure what law is [in the State] by any idea of natural law…” [5].
Accepting the primacy of the equity of a substantive bonum will not only serve to override the authority of the state, but also, and more importantly, to flatten out theology’s monopoly over divine justification. At this point Barth is quite explicitly in saying that this is what took place – and I think he is correct, specially if we take into account that the degenerate legality in Nazi Germany and Stalinist Russia was not an abuse of positivism, but a consequence of the open-ended common and natural law principles to the point of distortion – in the wake of fascism and Bolshevism in the interwar years of Europe. Barth writes with this in mind against artificial heavens on earth, as part of a hyperbolic “politicizing from above”:
“Fascism and Bolshevism alike will be dethroned and the true order of human affairs will arise. Not as heaven (not even a miniature heaven) on earth! No, this “true order” will be able to arise only upon this earth and within the present age, but this will take the place really and truly, already upon this earth, and this present age, in this world of sin and sinners…this is what the Church has to offer to the state…” [6].
The political domination of the total state amounted to a conflation between the lapsarian condition of man and the theology of eternal life. The passage or mediation between the two dimensions, which he also described as a “tailor made garment” was the suum cuique, understood as a limit to life and death beyond morality and biological reductions. Barth insisted on the principle of separation in face of every temptation of technico-rational closures. Thus, by externalizing divine justification to the sphere of theological eternity, Barth’s conception of “giving one’s due” was radically disambiguated from the Nazi motto “Jedem das Seine” (to each his own) in the concentration camp of Buchenwald in 1937, made possible by the opened force of common law adjudication against the state positivist authority (understood by Nazi legal scholars as “too Jewish”). This was the barbaric dereliction of duty of the state becoming what Barth called a “clerical state” [7]. Barth’s ethical limit on finite and eternal life, so well reconstructed in Björk’s brilliant monograph, can only be a witness to a ‘world passeth away’ to which no priestly jurists have the last word unless catastrophic consequences are expected. The ethical response to the lapsarian condition was a radical drift from the dangers of natural absolute rationalism that was directly implicated in the arousal of immanent powers and the reduction of the population as mere administration of doctrine of last things through consciousness and not grace. The suum cuique introduced a radical exteriority in which all men became “strangers” (to the Church, national identity, the community, to the social) whose proper involvement pertained to the eternal mystery of life and death.
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Notes
1. Stephen Humphreys. “Equity before ‘Equity’”, Modern Law Review, 2022, 1-37.
2. Mårten Björk. The politics of immortality in Rosenzweig, Barth, and Goldberg: Theology and Resistance Between 1914-1945 (Bloomsbury, 2022), 115.
3. Karl Barth. “Church and State”, in Community, State, and Church (Anchor Books, 1960), 146.
Infrapolitical Reflections 