The closure of the eon of the state. On Lo cóncavo y lo convexo: escritos filosóficos-político (2022) by Jorge E. Dotti. by Gerardo Muñoz.

The posthumous volume Lo cóncavo y lo convexo: escritos filosóficos-político (Guillermo Escolar, 2022) of essays by the late political theorist Jorge E. Dotti is a very much needed contribution that opens up a conversation about a theoretical corpus that witnessed the collapse of the modern state and the crisis of its political categories in times of postliberal forms of global domination. Although an astute observer of the key moments in modern Argentine political history (from Peronism to the dictatorship, from the return to democracy to the failure of the democratic socialist party experiment), Dotti’s intellectual stamina remained on the margins of political adventurism, while openly rejecting the organic intellectual political advisor to heads of state. As editor Damian Rosanovich writes in his introduction, Dotti refused to subordinate his political thinking to immedaite ideological projects; a rather unique position to undertake in a national context like the Argentine, historically inclined towards philosophia militants of the national popular type [1]. Complementary to this inclination, Dotti’s political thinking also had little to say (at least in a direct manner) to the Latin-Americanist disputes about state modernization, regionalism as supranational identity, or cultural formation hegemonies that dominated twentieth century discussions in the region.

Dotti’s theoretical ambitions had a more prudential wager: a confrontation against all kinds of abstract universalities, as well as its partner in crime, locational exceptionalism always ready to infuse doctrinal flavor unto nominal situations and practical problems. A modernist political thinker at heart, Dotti was also a keen observer of the the modern state genealogical crisis, which he read in a tripartite scheme that included the classics of modern political thought (Hobbes, Rousseau, Hegel, Kant), modern philosophy of positive law (infomed by his research years in the Italian context), and finally the work of Carl Schmitt on sovereignty, divisionism, the exception, and the difficulty of “revolution” as the esoteric form of political crises. As an heir to this modern tradition, for Dotti modernity is best defined not as predicated on contingency or anthropological reserves, but rather about a certain ethos, historical in nature and spatially grounded (in this way his vision was close to that of JGA Pocock and the Cambridge School, although less emphatic to the centrality of concepts), which claimed that the political thinking of the classics had to their disadvantage the idealization of every practical situational problems encountered in concrete determinations [2]. In this way, Modernity was best defined as a struggle against abstraction and the taming of indirect powers over the configuration of social stability and endurance.

The classics of political thought, while claiming the intrinsic political nature of man and the primacy of organic totality over every principle of differentiation, imposed a nomalist metaphysics that turned its back to discrete and discontinuous situations. For Dotti at the heart of modern politics – very much in line with Hobbes’s critique of Aristotelian critique of the virtuous politics – is rooted in a practice that is attentive to practical reasons for action and the normative foundation of a social order. Hence, the modern ethos was able to favor the primacy of authority (auctoritas non veritas facit legem) as a minimalist non-substantive framework of public law. In other words, prior to doctrinal and categorical arrangement of modern political theories (social contract, constituent power, or individual conscience), authority helped dissolve the anarchy over words and actions proper to the European civil wars. Needless to say, legal positivism had to walk along modern subjectivity (“Quiero, luego existo…”) inadvertently promoting, while neutralizing, the latency of civil war from its inception. As Dotti claims in an essay on Melville too long to be included in this volume: “Quien contrata se concede el derecho de desencadenar la guerra civil” [3]. The concrete situation of the modern ethos, in this sense, is never enough for containment; and its positive arrangements, being insufficient, will ultimately depend on direct police powers. The story of political modernity is that of legality trumpeting legitimacy for optimal reasons of political control. The insufficiency of the modern political order entails that politics and nihilism walked every step of the way too near each other.

This outlook towards political modernity renounces all nostalgia as it is a genealogical critique. This position speaks to Dotti’s systematic dialogue with Carl Schmitt’s juristic thinking regarding the polemic over secularization of the state and its political categories. Like very few political thinkers of modernity, Dotti accepts Schmitt’s lessons without prejudices and against the political black legends (Schmitt as the poisonous enemy of legal positivism, political liberalism, archaic Catholic, or ally of Nazism) that have been incapable to comprehend the German jurist lessons. If according to Raymond Aaron Schmitt was far from thinking like a Nazi, Dotti take this promises to more refined elaborations: the combination of decisionism and institutional rule of law coagulate an compossitum whose main aim is to regulate the internal functions of validity of the every political order [4]. The force of political theology, then, is neither doctrinal nor axiological, but rather attentive to situational stress of instances as to deter the indirect powers and the logistics of immanence [5]. Dotti understands Schmitt’s political theology as a decision that is only possible within a normative system in order to guarantee the authority of the state. The minimalist conception of political-theology stands as the antithesis of immanent factional ends, which, ultimately, reality will venge in the worst possible ways [6]. Adjacent to the modernist ethos against indirect powers, Dotti’s stages the copernican discovery’ of Schmittian thought: the autonomy of the political as the only category capable of defending the sovereignty of the state in an energetic manner without stepping into either a hyperpolitical or an apolitical vectors common to messianic and subjectivist positions. If for Schmitt there were few things more modern than the battle against the political, for Dotti the consecration of global postmodern time opened a crisis of the political and the expansion of the field of immanence which freely drives “por la autopista preferential de la corriente antipolítica” in which all politics is exception and all exceptions are treated as antagonism for the political [7]. The epochal dispensation of total immanence of power means a liquidation of the regulatory conception of the political as well as the formal recognition of enmity within the modern state now vested into the global fabric of Empire.

Dotti’s scene of writing is that of the closure of the eon of the liberal secular state from its very conditions that made possible the development of its genesis. It is in this specific sense that Dotti’s prognosis is similar to that of Ernst W. Böckenförde’s famous theorem: the liberal secular state survives by conditions that it can no longer guarantee [8]. For both Böckenförde and Dotti the epigonal process of secularization meant the end of state authority and the exhaustion of the separation of state legitimacy and the internal legal rules for social action. Dotti, however, introduces a minimal although fundamental nuance to Böckenförde’s theorem: the liberal state collapses not at the apex of the compilation of secularization, but rather at its very origins in the notion of revolution. This is a lesson extracted from Political Theology II: the ius reformandi of the ecclastical powers soon became an unlimited ius revolutionis of subjective domination during the nineteenth century. [9]. It is to this transformation that political theology effectively looks to respond to. In fact Dotti suggests that the category of revolution is the strongest force to be secularized, which entails that what paved the way for the modern liberal state becomes an open ended indirect force against all mediations of legitimate rule. As Dotti writes in his late essay “Incursus teológico político”: “Estado y revolución son inseparables en su complementación y en su simultánea oposición inconciliable. Esta relación es el cogollo mismo de la legitimación de todo orden político moderno: está en el origen y la muerte de la era de la estatalidad.” [10] The immanent force of revolution has no single figure: it is the movement against state sovereignty, the emergence of the total state in the twentieth century, as well the legal interpretation of statutes as idealistic forms (as in the jurisprudence of Robert Alexy) that intensifies a permanent state of exception whose real end is now a power for “definition, differentiation, regulation” as the tripartite form of political struggle. In this framework, the revolutionary spirit against formal mediation and authority can only take the form of an uninterrupted holy war against its enemies without end [11].

To the extent that revolution does not disappear but becomes unmatched immanent power, it becomes possible to understand Dotti’s central theorem in its proper light: “the problem with the revolution is not how to make it, but rather how to bring it to a close” [12]. There are at least two things we can say regarding the theorem: first, political modernity was fundamentally understood as the making of the revolution without any attention to formal mediation and the autonomy of the political; secondly, even the exponents of political liberalism during the second half of the twentieth century did not think of a revolution as closure, but rather they continued to foment an aperture based on a necessary retheologizaiton. It is in this way that John Rawls’ social state depends on a specific conception of original sin for equity; while Ronald Dworkin’s defense of principles and moral interpretative constitutionalism reintroduces a secularized form of the old iusnaturalist model. The socialization of the modern state at the historical instance of its eclipse had to pay the price of abandoning its commitments to both Pelagianism and positive law on behalf of a permanent exceptionality now dressed as the balancing of social equity. It is an irony that the two strongest attempts at the secularization of the concept of the revolution provided, in turn, a restitution of theological hidden subtleties that are ultimately optimal for the transformation of the rule of law into an instrument of world legal revolution. And, it is no coincidence that the closure of the eon of the state meant the end of exclusive legal positivism, while socializing the state police powers as compensatory for the collapse of the modern transcendental authority. The alleged neo-liberal state now subsists as an all encompassing administrative rule that mimics the practice of the confessional state. This could explain why today some jurists continue to understand the practical function of the administrative state as the concrete instance to constitute an uninterrupted iustitium. Dotti’s comprehensive and panoramic view of the modern tradition and its conceptual fulmination leaves open a task for future political thought: how would the closure of revolution might look like? This is no optimist question, as the only honest answer must depart from the farewell of the modern state, while also rejecting the substantive, doctrinal, and militant reallocations of power that steer, but never bring to an end, the violence of a planetary unity devoid of separation or enmity.

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Notes 

1. Jorge Dotti. Lo cóncavo y lo convexo: los escritos filosoficos-polilicos (Guillermo Escolar, 2022)

2. Ibid., 133.

3. Ibid., 28.

4. Ibid., 174.

5. Ibid., 176.

6. Ibid., 26. 

7. Ibid., 79. 

8. Ernst W. Böckenförde. “The Rise of the State as a Process of Secularization”, en Religion, Law, and Democracy: Selected Writings (Oxford U Press, 2022). 167.

9. Carl Schmitt. Political Theology II (Polity, 2008  ), 101. 

10. Ibid., 434.

11. Ibid., 424.

12. Ibid., 421.

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

This Wednesday the Supreme Court of the United States will consider arguments in Moore v. Harper, coming out of the North Carolina State Legislature, which revolves around a specific doctrine: the Independent State Legislature. When the legislature of North Carolina tried to pass a new redrawing district boundaries for electoral purposes, the state supreme court decided against it, concluding that the map violated provisions of the constitution affecting free elections and the equal protection clause of the federal constitution. On other hand, the sponsors of the Independent State doctrine claim that state legislatures enjoy unsubordinated independence from the state supreme court, acting freely from the structure of state constitutions. The defenders of ISL doctrine “interpret” the term legislature as free-floating affirmation of constituent power when it comes to matters of voting under Election Clause of Article I in which legislatures decide on “the times, places, and manner of holding elections for senators and representatives”. Hence, ISL doctrine is fundamentally about political-theological question of ‘who decides?’ (quis judicabit) in the structure of federalism. But insofar as it is the question of ‘who decides’ it is also about what orients application today: ‘who interprets?’

When legal practice becomes open to interpretation each word immediately becomes a door. Each term becomes contested meaning as a free-floating signifier where balancing will ultimately serve particular political purposes. It is no coincide this ISL doctrine has come to the surface at this precise moment – after the 2020 election results – when, in fact, for most of the history it has been rarely used [1]. What does a floating and independent legislature power entail for electoral ends? What is of interest here is precisely how, in the name of a direct justification of constituent power (‘The People’), ISL represents a truly indirect power within the structure of federalism and state-constitutions. By name and function, indirect powers are understood as external interreference within a structure of stable organized powers. Now, the novelty of the ISL doctrine is that this indirect power emerges from within as it were, capable of upending judicial review and constitutional authority. The stability of ‘who will decide’ becomes an indirect power that, potentially, could even override state elections wherever political asymmetries exist between the legislature, governorship, and judges at the courts.

We know from the history of political thought that indirect powers (the undecidability of who will decide) leads to a stasiazon or internal civil war between the constituted powers. In other words, it is with the ISL doctrine that we can now see the true nature of what I called in the beginning of 2021 a legal civil war in Trump’s efforts to overturn the election results. A legal civil war is far more intense than the political partisan struggle of the movement – even if, at times, they can both cooperate as joint partners – since indirect force tries to ambush the constitutional organization of powers. The legal civil war of direct democracy comes full circle: unmitigated legislative force will constitute itself as the unstrained guardian of the question ‘who will decide’. For the champions of ISL doctrine legislature has no penumbra: it is always “We”. And it is no coincide that, as it has been shown by one of the great scholars of American federalism, a legislative supremacy once defended by Madison could allow for the “raising of every conflict to a constitutional crisis and civil war” [2].

In other words, what at first sight appears as total independence at state level actually facilitates its oppositum: the production of “standing” for higher courts litigation. Contrary to common opinion, the function of constitutional interpretation is full of cracks due to its brittle fabric: it allows for the indirect powers to be justified vis-à-vis the naturalism of the People as ‘original electors’ without mediations [3]. The historical irony cannot escape us at this point, since the American Revolution was waged against a legislature (the British Parliament) and legitimized through broad voting. This was the great innovation of Atlantic republican political theory. The question is whether a constitutional ‘interpretation’ could wage a battle against indirect powers facilitated by the revolutionary penumbra of ‘who will decide?’.

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Notes 

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

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

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

Event and retreat: on the autonomy of the Cuban contemporary art scene. by Gerardo Muñoz

Event and the problem of sequence. According to Carlo Diano some historical epochs are prone to being inclined towards events rather than forms; that is, they allow the proliferation of states in the world rather than allocating forms to make sense of what has taken place [1]. Since 1959 – but also before this historical demarcation if one considers the failure of the bourgeois Republic and the apparatus of transculturation – the Cuban Revolution was poor in both form and events. Indeed, the institutionalization of the revolution has attempted at all costs to police the excess of both of these poles of world-making. On the one hand, the historical development of 59 secured an event that translated itself as historical and national necessity to legitimatize the production of a new “revolutionary subject” (el Hombre Nuevo); and, on the other, it assigned the supreme form of political unity in the charismatic authority of the Fidel Castro as the principle of a new political legitimacy [2]. It is against this historical frame that the event of 27N that gathered young artists, intellectuals, and writers at the doors of the Ministry of Culture should be measured up: the November gathering was an exodus from the total narrative of the revolution by insisting on the contingency of an event that affirmed a relative autonomy from the state as well as a separation between state and civil society. More than a set of clear demands at the level of objectives, political calculation, and cultural reabsorption to the logistics of the state; the 27N event in its outermost radiant potentiality was a breakthrough as a vital discontent of the youth that attuned itself to an experiential politics that have characterized the cycle of recent revolts of the past five years or so from Paris to Santiago de Chile and Quito, to the hinterlands of United States that no longer seek a modification of the social, but more fundamentally a thorough exodus from it.

I am not saying that they all recent revolts are homologous processes (or events of the same intensity or destructive vocation), but they do share the ecstatic vitality that posits experience over the technified and well-organized planning proper to the vanguard artist invested in mass conduction. Of course, giving primacy to the force of the event raises the question about both temporal and spatial sequence: in what way could those fragments, affects, and gestures transformed by the event mitigate their swerve without succumbing to the re-totalization of political recognition? There is no doubt that this has happened to the 27 Movement by virtue of the actualization of the phantasy of a movement. But a movement is the force that unifies political will, concentrates degrees of intentionality, and crafts a specific subjective discipline against any deviation from its rectilinear force [2]. We can call the phase of the “movement” a mediatized sequence that limits the possibilities of autonomous forms to effectively renounce the limits of totalization. Rather, given the experiential dimension of the contemporary events, it seems to me that the emphasis today should be placed at the level of genesis of forms, which implies connecting rhythmically the fragments within a sequence as a response to the metaphorical articulation of parts into a ‘movement’. In this sense, the sequence in the aftermath of an event must rethought against the grain of the category of ‘movement’, which in political modernity dialeticized the parts into in a temporal suspension unto the homogenous field of historical reabsorption. The force of the event, on the contrary, is what can render destitute the seduction of historical narrativization; or, for that matter, the assumption that political action still has transformative capacities within the set of developmental strategies of subjection, sacrifice, and voluntarism, all elements at the service of the metaphysical grid that constitutes the infrastructure of the philosophy of History. 

The hypothesis of the artistic legal turn. It should not come as a surprise that the limits of the movement demands that we raise questions about the functionalization of the militant in contemporary artistic practice. We should be willing and able to abandon the figure of the militant as always already positioned as a reactionary subject, which transfers military force to unified energies of the cause established by the movement [3]. It should be remembered here that the theoretical grounds of “activist” relational aesthetic was rooted in the transposition of the post-foundational theory of hegemony in Laclau & Mouffe’s theorization as a regulatory principle in the field of artistic practices [4]. But the price to be paid here is enormous, given that the artistic gesture and the possibilities of imagination are now folded unto the ground of “political action” recasting the old semblance of vanguard to achieve cultural domination. But since no cultural hegemony is ever fulfilled, it follows that political hegemony becomes a vector for the valorization of available strategies. It is no surprise, then, that artistic practice, once it turns to activism, becomes a pedagogical tool for and by militant subjects to stabilize the ascesis of self-consciousness. In sacrificing the autonomy of forms, militant subjectivity mirrors an intra-communitarian domination premised on policy and calculation to the idea. In other words, situating the set of strategies at the level of hegemony means necessarily that we have to accept the conditions already in place. What really changes is merely the site of subjection. It seems to me that this same issue is behind a nascent “legal turn” by which the artistic practice centers around drafting, contesting, and exercising pressure against the state by means of its own legal pathways. The problem with this strategy is that, as any jurist knows well, law is constituted of the pole of legality the pole of legitimacy. The turn towards legality becomes accepts the pragmatic conditions of norms and rules but leaves untouched the crisis of legitimacy that it seeks to transform.

In other words, whereas artistic imagination should be able to destitute the objective conditions of any given reality to new set of operations of transformation; the strife over legality ends up, at times counter-intentionally (and in a preserve way, generating unintended consequences), those very goals that it wants to endorse. In the Cuban case this is even more so, given that “fidelismo” far from being a set of original ideological principles or an unambiguous political philosophy guided by principles, has morphed into an all-encompassing institutional fabric that sustains the total state vis-à-vis a juristocratic operation of the legal order. Borrowing the terms from the discussions about the limits of constitutional transformation in Chile in the wake of the post-dictatorship transition to democracy, one could argue that the performance of the legal operation becomes the juristocratic tool to transform the relations between political life and imagination within the framework of given social relations [5]. Hence, if the artist pretends to incarnate a new version of the old paradigm of the “artist as jurist” soliciting the sovereignty of the creator over the vocation of the politician, one should expect the boundaries of the legal dominium of the state to expand, as it has happened with the reiterated executive administrative decrees deployed to normalize the rule of the state of exception. To break this cycle of legal administration, the artistic practice must affirm a disjointed zone between life and artistic autonomy over the excessive boundaries of the law. In fact, legality and policing should be understood as the two poles of the optimization of control once legitimacy no longer works to bind a political community. 

Retreat and obstruction. The minimal condition of any sequence in the aftermath of the event resides in how we protect the surround against the logistics of state policy, cultural administration, and political militancy [6]. These three vectors are the agents of hegemonic intervention against the unregulated proliferation of forms in the wake of the event. Recently, I have called this autonomous self-defense of forms a diagonal that moves against and outside the political demand [7]. The failure of not retreating from the foreclosure of subjective politics (of reducing a form of life to a subject of the political) entails that action will always be on the side of reaction. As Elena V. Molina has brought to attention on several occasions, the reactive action is so not because of ideological color or political affinity, but rather because it remains inscribed within the coordinates that the state has assigned it in order to generate responsive relays or bring to exhaustion the emergence of a new sequence. Rather, in the gesture of retreat (which can be read in the works of Camila Lobón’s infantile books, the opaque graphism of Esequiel Suarez, the sensible violence of Raychel Carrión’s drawings, or the youthful vitalism of the Mujercitos Collective), the possibilities lay on the side de-subjection against both the movement and the state in favor of an infinite practice of autonomy driven by the turbulence of the imagination. What is at stake is a radical abandonment of the historiographical machine that delimits and polices the mediations between culture and state in order to open up a new reservoir of existential gestures in order to break from the previous historical epoch.

The growing autonomy of the contemporary visual arts scene announces this oblique passage from willful political dissent across ideological lines proper of the Cold War to a play of gestures that unleash a new vitality capable of defictionalizing the historical process of the state and its moral demands. Contrary to the notion of action, the gesture does not seek mimetic repetition and reproduction, but rather the preparation of an experience here and now. In a society that is subsidiary on moral conducts and expectations; the gesture, in the words of contemporary Cuban artist Claudia Patricia Pérez, becomes a way to obstruct the efficacy of power relations [8]. There is no doubt that the force of the gesture is a nascent strategy for transforming contemporary Cuba, but the scene of the visual arts is the vital field where the storming of the imagination can unclutter a hastened path outside the ruins of the civilization of the state and the stagnant epochality of the revolutionary process.  

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Notes

1. Carlo Diano. Form and Event: Principles for an Interpretation of the Greek World (Fordham University Press, 2020).

2. Nelson Valdés. “El contenido revolucionario y político de la autoridad carismática de Fidel Castro”, Revista Temas, N.55, 4-17, septiembre de 2008.

3. Giorgio Cesarano wrote in Chronicle of a masked ball (1975): “Neo-Leninists perceive the disintegration of the capitalist system as if they could anticipate, in their methods, their role as true inheritors of power…the distance between militants and militarists is only expressed as a transfer of force.”

4. This was Claire Bishop’s argument in her essay “Antagonism and Relational Aesthetics”, October, 110, Fall 2004, 51-79.

5. On the notion on the “crítica de la operación efectiva del derecho”, see my conversation with Chilean philosopher Sergio Villalobos-Ruminott, “Soberanía, acumulación, infrapolítica”, Lobo Suelto, 2015: http://anarquiacoronada.blogspot.com/2015/04/soberania-acumulacion-infrapolitica.html  

6. Stefano Harney & Fred Moten. The Undercommons: Fugitive Planning & Black Study (Autonomedia, 2013).

7. Gerardo Muñoz. “La diagonal que nos separa de la política”, Columna Cultural, mayo de 2021: https://in-cubadora.org/2021/06/02/gerardo-munoz-·la-diagonal-que-nos-separa-de-la-politica-un-comentario-a-la-conversacion-con-leandro-feal

8. Personal communication with the artist, June 2021.

  • This text was written as an intervention in the panel “The Art of Protest” organized by the Biennial of the Americas, Denver, June 24, 2021. Image: Collage by Claudia Patrica Pérez.