Legitimacy

The Gnostic residue. On Mårten Björk’s The Politics of Immortality in Rosenzweig, Barth, and Goldberg (2022). by Gerardo Muñoz.

Mårten Björk’s The Politics of Immortality in Rosenzweig, Barth, and Goldberg: Theology and Resistance Between 1914-1945 (Bloomsbury, 2022) is a major contribution to the ongoing discussion on theology, politics, and life in our present. Indeed, this book of unmatched originality will radically change the coordinates that have structured these debates in and beyond the academic disciplines involved. First conceived as a longer dissertation entitled Life outside life and defended at Gothenburg University in 2018 (which included an voluminous and illuminating chapter on the work of German theologian Erik Peterson, not included in the published monograph and scheduled for publication in the near future) studies three figures of the German interwar period that confronted the civilizational catastrophe of the twentieth century and the rise of the regime of mass production. Through different conceptual elaborations in Franz Rosenzweig, Karl Barth, and the Oskar Goldberg Group (it also includes thinkers such as Adolf Caspary and Erich Unger) a unified thesis emerges: these thinkers crafted a fundamental response to the collapse of the legitimacy of the modern epoch through a radical imagination of immortality and eternal life (Björk 2022, 3). From an angular perspective, Björk’s book measures to Hans Blumenberg’s groundbreaking defense of the legitimacy of modernity through “self-affirmation” of the human; a philosophical anthropology predicament that today has become fully integrated into the arts of planetary destruction, although its genesis is to be captured in the first decades of twentieth century through the dawn of a new catastrophic politics (the term is coined by Erich Unger in his Politics and Metaphysics). In Björk’s account, these thinkers took the stance against the stimmung of the epoch, its historical closure as well as the immanence of nature in order to take up a historical collapse that was civilizational in nature.

It would be a common place to remind the readers of this book that the figures of the research (with the exception of Rosenzweig who in some corners has been taken as the greatest Jewish philosopher since Maimonides) have been unwarranted buried in the monumental and political historiographies of the period and in the edifice of normative Continental philosophies of the twentieth century. However, Björk’s monograph is no simple restitution of dead old men, as this would be too accommodating to the field of the history of philosophy. Behind these figures there are multiple strategic displacements that connect the destruction of biopolitics to the reformulation of ethics of the dead, as well as the revision of Judaic theological sources to execute an effective retreat from the collapse of civilization of the last 5000 years of the human species. In this quadrant there is also a timely gesture on the complicated relationship between Judaism and Christianity; a relation that the book never really solves, although it runs throughout the book flagged for possible future explorations. Methodologically, it is the field of “theology” (not of science of religions a la Weber) that returns to the center as a way to explored an unthought dimension of immortality – that Björk properly renders as life outside life, against all biopolitical saturation and ecological catastrophe of the natural world. It goes without saying that there is an untimely tone that directly speaks to our present. Indeed, it is the radical theological and cosmological presuppositions (outside the formalism of religion and the apocalyptic historical saeculum of the Church) where something like a radical new existence of what it means to live can be rethought. This is Björk’s fundamental invitation.

In “Yearning for a system: Franz Rosenzweig and the great paganism of life’, Björk offers an all-encompassing outlook to the work of the Jewish scholar whose famous Star of Redemption was also accompanied by an interest in European geopolitics of the first decades of the century. In the midst of the First World War, Rosenzweig witnessed the rise of a new paganism of the state as the acceleration of the struggle for life in the West reproducing forever war (Björk 2022, 29). For Rosenzweig modernity was not an authentic or unfinished secularization, but rather the institutionalization of a pagan order of depredatory confrontation that foreclosed the world without outside: absolute immanence now meant the subjectivation of new false gods of modern civilization ordered towards survival and struggle (Björk 2022, 25). Against this backdrop, Björk reads Rosenzweig’s Star as an original theosophy of redemption of the world that exceeds the national political counters, while offering a new planetary and universal dimension of salvation beyond the state as articulated in Globus. Furthermore, Björk notes that Rosenzweig saw himself as a sort of Jewish fighter in the defense for a new planetary community with “religion as an instrument for change” (Björk 2022, 53). Even though the language had residues of imperial imagination proper to the time, it is the theological vector that distorts the political register of the ground battle for survival. Here Judaism appears as a subtraction from conventional historicity by retreating to a prehistoric past where the ‘unity of the world’ had no nomoi, states, or borders (Björk 2022, 54). It should be noted that something similar was advocated in his 1922 booklet Die Staatslose Bildung eines Judischen Volkes about the stateless wandering of the Hebrew people, by Erich Unger who thought could show a way out of the decadence of Western civilization through the revitalization of ancient Judaism. The Jew had never been a member of the polis or a slave of the state, since the Judaic Kingdoms were ruled, as Björk explains, “by an antipolitical priesthood” or a “metapolitical priesthood and not political kingdoms” (Björk 2022, 61). The sharp contrast to the modern Judaic subtext is of importance: whereas Eric Nelson shows in The Hebrew Republic (2010), how the ancient Jewish sources influenced the constitution of the modern state theories of Thomas Hobbes and John Milton; the work of Unger and Rosenzweig centuries later, in the wake of the Weimar era, seeked to radically alienate the command of Judaic prophecy from the regulatory political and geopolitical techniques of anthropological modernity. The gap between the two, for Rosenzweig, would be the hope for eternal life against the management of survival to which modern political grammar succumbed without return (Björk 2022, 66).

But theology offers the route to imagination and vocabulary of restitution, and infinite recapitulation. To grossly synthesize Björk’s thesis: life is best understood as an endless dialogue with the dead. The second chapter “Abundance and scarcity” glosses aspects of Reformed theologian Karl Barth’s thought against the materialism of scarcity of the world and the principle of abundance proper to eternal life. By tracing Barth’s critical dialogue with Feaubach’s sociology of religion of the species-being (which radically impacted the way Marx and Marxism came to understand theology), Björk’s theology puts paradisal life at the center of the mission of salvation; a heretical notion that exceeds the predestination theology of grace deployed in the organization of the modern kakedomonic public powers of modernity (Björk 2022, 88). In this sense it is insufficient to define the capitalist religion as merely a cult without dogma or atonement; it is also, perhaps more fundamentally, an axiomatic system that accentuates the two-dimensional positionality of death and life without residue. For Barth, Björk reminds us, theology is a way out from the cultish axiomatics of the countable and measurable of the visible world: “Theology….seeks to open the believer to the belief in the invisible side of the reality of the world. Theology must become an investigation of this invisible world to which further posits that the visible world is related” (Björk 2022, 103). And Barth’s lifelong interest in the theology of resurrection was precisely a way to insist on the invisible register that conflates nature, morality, and survival of the living within the objective normativity of the world.

Perhaps the most interesting aspect of Barth’s theology discussed by Björk comes by way of the opposition of ethics and morality – this is elaborated as a rejection of the predicament of natural law’s imago naturae and its dependency on rationality – where the second is discarded as merely finite life unto directive command of the natural good. On the contrary, an ethics suspended by the postlapsarian stage is guided by the principle of suum cuique (Björk 2022, 114). The suum cuique (‘to each its own’), although prima facie echoes the Thomist epikeia, it is also free standing for something more: it is a limit to the irreducibility of life in relation to God, which cannot be inscribed in a system of balancing of moral principles in the hands of a sacerdotal authority. Whereas the moral principle of equity (epikeia) organizes the government of this world through principles and moral reasons for action; the suum cuique is the limit set upon our finite life and the eternal in the scope of the saeculum. Björk connects the notion of the suum cuique to the Barthian figure of the “strange saint” who “with tears and laughter provides God and in this provocation is obedient to the election that forms death into life” (Björk 2022, 116). The suum cuique, accepting the postlapsarian condition rejects the instrumentalization of original sin in order to become a “vast eon of the cosmos itself…temporal and finite but also eternalized as that which once was” (Björk 2022, 117). In this way, the suum cuique prepares the paradisal affirmation of every unlived life, an anathema to the thomist substantiation of merely personal dignity and the exceptional mechanism of individual mediation with the economy of election and grace.

The theological exploration of modality of being – this is one of Björk’s implicit lessons in the book – never truly disappears in modernity, but rather reemerges in unexpected spheres. The politics of immortality does not pretend to exhaust this problem. But it is in the last chapter on the enigmatic figure of Oskar Goldberg where this theme is best explored as the true meaning of a life outside life at the center of the book’s conceptual development. Oskar Goldberg is one of the most enigmatic figures of the Weimar era; a magnetic personality that gathered diverse personalities from all corners of the intellectual milieu. He was looked with high suspicion by Thomas Mann, who portrayed him as a mystical undemocratic thinker in Doctor Faustus, but also dismissed by Walter Benjamin and Gershom Scholem (it only suffices to look at the correspondence collected in Scholem’s Walter Benjamin: The Story of a Friendship). A scholar with strong and sedimented knowledge in the Talmud and Ancient Judaism, Goldberg developed a highly sophisticated and speculative theology of the transcendental organism, to put it in Bruce Rosenstock’s terms, which provided an original formulation of a transcendent being based on the Torah in the wake of the new biological theories of the species (the work of Driesch, Uexküll, Spemann, among others) [1]. The biological and mystical vocabulary of Goldberg aroused immediate skepticism from the German intellectual class, but Björk convincingly shows that Golberg’s project was not an arabesque of a madman, but rather a very peculiar modal speculative system that seekd to confront the 5000 years of the civilization of fixation of the Western transition from the society of myth to the civilization of production and psychic energy imbalance (Björk 2022, 127). For Goldberg the passage from the prehistoric stage of myth to the inauguration of the religion of the state meant the sedimentation of a civilizational regimen oriented towards production, devastation, and positionality (Theophanidis recently expressed the proximity between Goldberg’s fixation and Heidegger’s Gestell, unexplored in Björk’s book). Björk is attentive to the fact that Goldberg was not just a proper name but also the constitution of a sort of ‘metapolitical university’ that gathered diverse figures, such as the economic historian and political thinker Adolf Caspary or the philosopher Erich Unger, both who developed their own critique of technological domination under the shadow of Goldberg. Thus, the critique of civilization is not to be taken as an abstract mysticism; for Björk, the concrete effects can be read in Caspary’s forgotten The Machine Utopia (1927), which criticized the utopia of machine civilization proper to both Soviet Bolshevism and Western capitalism – two social orders that shared the same the same historical horizon: reproduction and accumulation of surplus value (Björk 2022, 142).

In this framework, and against the historicist analytics of Marxism, for the Goldberg circle class antagonism and division of labor was not oriented towards emancipation, but rather towards the realization of a global total state. For the Goldberg circle to escape the civilization of the Behemoth of the industrial state required nothing short than a politics of errancy (defended by Unger in his Politics and Metaphysics of 1921) and the reversal to a modal relation with YHWH as an effective and potential dimension against the imbalance of an impoverished reality. Björk claims that for the Goldberg circle there were three possibilities of existence of coming to terms of the modern decline towards: civilizational fixation, myth, or Torah (Björk 2022, 154). And in different ways, they opted for the Torah, which implied not an identitarian reversal to a territorialized Volk but rather an infinite task of becoming immortal, given that our modes correspond to the nature of God and the world (Björk 2022, 166). The task was to depose the production of evil and suffering here and now as mobilized by the incarnation of historical progress. This infinite retreat from the materiality of the finite of the species was a way to open a new polytheism to the Ancient Hebrew metaphysics elaborated in Goldberg’s book, The Reality of the Hebrews (Die Wirklichkeit der Hebräer, 1925). In other words, to exit from the fixation of the 5000 years civilization required a passage to immortality as a way to “make us unadapted to the normal laws of evolution” and to the objective world (Björk 2022, 178).

Truth be told, immortality never disappears from modern political imagination and governmentality. Some of us still remember that one of the famous mottos of the Cuban Communist Party was: “Los hombres mueren, el Partido es Inmortal” (“Men die, but the Party is immortal”), which ultimately served to guarantee the idolatry of the state’s sacrificial principle through a continuous “lucha” (struggle) of everyday life under real-existing administrative communism. Likewise, in recent years Boris Groys has argued at length that immortality lives off in the topology of contemporary art, where archivization, spatial flexibility, and museification of the historical Vanguard stand in for the desire to become immortal [3]. This is, indeed, what Björk calls, following Blumenberg, the moralization of immortality whose political translation resulted in truly barbaric consequences that we are still suffering (Björk 2022, 186). Against all moralization and political instrumentalization of immortality, The Politics of Immortality in Rosenzweig, Barth, and Goldberg (2022) rises the theological mirror so that yet another anthropogenesis event through the “the Gnostic residue by insisting that the problem of evil could only be solved by God” (Björk 2022, 190). In other words, the problem of immortality restores the gnostic residue to its proper place beyond exceptionalism and anthropological humanism, since finitude (death) externalizes what is living, while “life” now becomes the meaning as its own otherness to the modes of God. Departing from the fourfold structure of the history of the modern error in Nietzsche’s typology, we could add a fifth: the error of conceiving the gnosis as worldly aspiration to domesticate exteriority as a forever postponed apocatastasis.

It is in the sense that Björk’s important book complements the unfinished elaboration on the gnosis undertaken by Giannia Carchia towards the end of his life: the exodus from the fiction of the subject and the person implies nothing short than the “resurrection of the human community capable of renewing the arc of history that appears so dramatically broken” [3]. Perhaps Carchia was a bit of an optimist here: the historical arch emanating from the potstlapsarian moment is now in ruins, but the gnostic residue remains once the darwinism of human-assertion has fallen flat into pieces across our planet (Björk 2022, 197). But Mårten Björk majestically teaches us that to keep insisting on life (on absolute life, on dignified life, or the monstrous “good enough life” recently proposed in a frank instance of academic nihilism) cannot but reproduce the civilization of calamities that has put the world in the road to extinction. In the current epochal implosion all these pieces are more apparent than in any other time in history. Yet, life is elsewhere, always escaping objectivity and immanence: “it is the invisibility of the wished, the desired and the dreamt. This is what human life entails. It is related to the wide world of what could have been or what should have been” (Björk 2022, 199). The modality of eternal life is also what value cannot apprehend, and for this reason what remains undialecticized, stubbornly disjointed from every unbearable fiction of the world. The Politics of Immortality (2022) is not only an exceptional book; it moves us to look to what always remains on the side of the invisible, to the unsaved in the exterior elan of every life, our lives.

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Notes 

1. Bruce Rosenstock. Transfinite Life: Oskar Goldberg and the Vitalist Imagination (Indiana University Press, 2017).

2. See, Boris Groys, Política de la inmortalidad (Katz editores, 2008), and “The Immortal Bodies”, Res, Vol.53-54, 2008.

3. Gianni Carchia. “Elaborazione della fine: mito, gnosi, modernità”, in L’amore del pensiero (Quodlibet, 2000), 150.

On the dispensation machine. On Monica Ferrando’s L’elezione e la sua ombra: Il cantico tradito (2022). by Gerardo Muñoz

Monica Ferrando’s short but dense book L’elezione e la sua ombra: Il cantico tradito (Neri Pozza, 2022) refines our understanding of the secularization debate in the wake of the epochal crisis of modernity and planetary domination. For Ferrando this current domination is rooted in a specific retheologization that must be grasped at face value, no abstractions allowed. The force of theological domination, which has become a proper religious imperialism, expresses itself as a true corruptio optimi pessima, which Ferrando locates in a very precise intersection: the passage from the suppression of dilectio to an instrumental manifestation of electio that will culminate in the unleashed power to dominate not only the relation with the world, but the very existence of the species. If the Ancient covenant of early Judaism was a prophetic covenant with God, the force of predestination will suppress the mysterious relationship of blessed life to render a “selective process” of theological election [1]. It is only with the rise Protestantism, and Luther’s specific hermeneutical efforts to neutralize the messianic message of Paul’s Letters to Romans that election becomes the paradigm of a new government of the soul in this world, which will ultimately find its material legitimacy with the advent of the reproductive logic of capital. Implicitly building on the thesis of economic theology, for Ferrando the advent of the machine of election materializes in the theological reform that translates the universal salvation of the prophecy into a never before seen economy of the dispensing grace through wealth retribution for human labor [2].

The reformation based on dispensation (oikonomia) differed fundamentally from the Church’s idea of change rooted in the ius reformandi. As Gerhart Ladner shows, if the “idea of reform” up until modernity presupposed periods of spiritual reform through monastic experience in relation to wordly profane time, the apparatus of dispensation of election was oriented at securing an integral government rationality combining law, economy and subjective production without reminder [3]. In this light, the operation of the dispensation paradigm is twofold: on the one hand, it promotes an anti-Judaic operation of reducing Jews to a people of this world that will ultimately will be identified with political Zionism; and, on the other, it dismisses the coming of Christ as worthless, and in the best case as merely postponed [4]. For a reformed theologian like Karl Barth – at odds with the economic evangelism that ultimately triumphed in the United States and that now it extends across the global – there was only a ‘great dispensation’ putting end to the abstraction of value and the homogeneity of the time of production [5]. But more importantly for Ferrando, the triumph of the dispensatory paradigm entails a new fundamentalism of judgement based on “election” (in the broadest sense of value equity and competition) will appear as the only immanent force capable of considering every other religion and confession exterior to itself as “merely pagan and idolatrous” [6]. It would amount to the triumph of the self-made ‘gentleman’ over the outward message of Paul.

The dominance of dispensation meant a full convergence between salvation and profane economic life that will bring exteriority into a crisis in the deepest sense. This is why for the reformist mentality, its own modern image initiates the epoch of irreversibility; that is, the pure historical progress guided by the will of election and the work of grace as an exception to universal salvation. If the modern reform has been at times understood as the new regime of social pluralism and system of indirect separations (between Church and State, civil society and religion, the public and the private, etc) for Ferrando it is on the side of the theological presupposition where its most terrifying arcanum must be found: a dispensational theology whose main unity is the recurrent intrusion, training, modification, and discipline of the forum internum, that is, the administration of the consciousness of man. Whereas the felix culpa allowed for the mystery of repentance and universal salvation; the political meditation of election through accumulation and economic benefits will legitimize the new discourse on toleration, “liberty”, and even democracy as the distribution of surplus value. In this sense, Liberalism (with Locke and other thinkers of the English and Scottish Enlightenments) was born, as later understood by Carl Schmitt, with the structural weakness of “individual freedom” and maximized autonomy that will require the expanding checks of police and governmental penalties to cope with the production of effects. Of course, every deviation or movement that could put a halt to the fiction of election will find itself on the side of illegality, or turned into a remnant of a surreptitious past that must be overcome at all costs. This implied, as Ferrando reminds us, nothing less than a novel modification of the anthropogenesis of the human species.

It is one of Ferrando’s most daring and surprising tasks to show how the machine of election does not merely occupy the economic-political sphere, but that it will eventually also imply an aesthetic imperative in Northern European culture; specifically with the rise of German romantic response to the crisis of the Enlightenment and the question of “classicism” of the classical Greece. If according to Gianni Carchia the aesthetic dimension of modernity should be read as a compensatory answer to the futility of the romantic revolution in subjectivity; Ferrando’s complementation to the thesis brilliantly shows how this attempt was meant to fail at its original ground due to the mimetic appropriation and metaphorization of the Greek historical past in the aesthetics program of Winckleman and German Idealism (with the exception of Hölderlin’s fugitive position) [7]. The mimetic “hellenization” of German romanticism and its posterior afterlives (one thinks of the Stefan George Circle, and Max Kommerell’s Der Dichter als Führer) gave birth to a notion of “culture” that hinged upon the separation of the aesthetic and the religious spheres that had to sacrifice the appearance of beauty in order to attest for the dialectics of objective and subjective forms of the “Spirit”, and thus leading to the triumph of the grotesque and the aesthetic imperative of uniformity and museification. For Ferrando the German spirit of genialismus had as a mission the overcoming Latin, Mediterranean and Mesopotamian forms of life where the distinction between beauty and life never understood itself as a “culture” or objective project of enlightened intellectuals and artists on the mission to transform the contingency of poesis into the realization of the Idea [8].

Displacing this aesthetic dimension to the present, for Ferrando the intrinsic disconnect between appearance and substance of art’s truth emerges today in the predominant social morality of today’s global bourgeoisie: hypocrisy. It is in hypocrisy where today one can see the inflationary hegemony of discourse over the true organization of life that is proper to the dominant metropolitan class of the West, and its maddening obsession with identity politics or “race” oriented discourse as a moral inquisitorial abstraction (it is in this process that the notion of election appears in the least expected of places: sky color, language use, demands for inclusivity, and hyperconscious towards an invented past). The work of hypocrisy, in fact, appears as a secularized form of the dispensation paradigm that aims to normalize and domesticate every form of life that challenges its specular regime. This is why according to Ferrando – and I do not think she is incorrect in saying so – the possibility of art (especially that of “painting”), as the undisclosed of truth will disappear from human experience, as it has no place in the moral functionalism of ‘contemporary art’ nor in the discursive struggle over global communication and opinion battles (the so-called ‘cultural wars’) [9]. The aesthetic museification of the world liquidates the possibility of art’s truth. Paradoxically, in this new scenario everyone must declare himself “an artist” of their own emptiness: the nowhere men that stroll in the works of Robert Walser or Franz Kafka – who never declared themselves to be anything – in our present are flipped on their heads becoming informers of the regime of a universal politics of recognition and moral judgement [10]. These ‘bloomesque figures’ confirms in the last epochal dispensation of the Reformist revolution that the premises of subjective freedom, economic gain, and autonomy of value have culminated in a new aesthetic imperialism that is anthropological and rooted in the triumphant religion of immanence and the sacralization of ultimate values. The endgame has been dispensed in the creation of a “new man” through the sacrifice of every exteriority in man, that is, of the invisibility outside the fiction of his personality.

The paradigm that Ferrando is describing vis-a-vis the operative force of “election” is also one of profound irony, since the mechanism of predestination and election, by betraying prophetic dilectio (love), the “free election” of the moderns entails that everything can be elected at the expense of losing dilectio: the only path towards the mystery of life. This is what the epoch of irreversibility and the arrogance of historical progress has foreclosed and it is incapable of considering. But for Ferrando life remains an ethics, which she links to Eros, whose appeal to the law of the heart is neither religious nor political, but rather an instance to the disclosure of truth. As she beautifully writes towards the end of L’ elezione e la sua ombra (2022): “Occorre osservare che qui si tocca una sorta di grado zero teologico, che scivola nel mero «biologico» solo a patto di esautorare la sapienza della madre o, detto altrimenti, la sapienza come madre, custode di una legge non scritta, di un nomos del cuore, che non necessita di alcun mandato esterno per esercitare la conoscenza che gli è propria. Si apre insomma quello spazio, costantemente e variamente negato, ma imperturbabile, di cui solo la madre, in virtú di una sapienza propria della natura umana, può custodire la legge.” [11].

The foreclosure of the acoustic relation to prophecy documents the recurrent political interest in the subordination of music to the moral captivity of the reproduction of humanity [12]. On its reverse, the law of eros, prior to the moral domain of natural law and the authoritative domain of positive law, is the protection of the indestructible region of the human soul where no political, moral, or economic dispensation can exert its force. This is confirmed today by the monstrous techno-scientific interventions and dysphoric alterations in the life of children as the last utopia in the long dispensation of the anthropomorphism of capital legitimized by rhetorical force of an unending sermo homilis [13]. In this sense, what Ferrando accomplishes in this wonderful essay is to remind us that the event of theology remains outside the dominion of priests and bureaucrats and situated in the prophetic dimension of Eros (love) that guards the inclination towards beauty and the disposition to attune oneself to the prophecy of the world’s fulfillment [14]. Hence, it is not in the community or in an integralist Christian traditional family order where the sacred dimension of humanity can be retrieved; rather, for Ferrando it is in the non-knowledge reserved by the eros of the mother who never decides nor choses before law, whose nonverbal “tacit authenticity” (“tacita autenticità del legame materno”) unconceals a true experiential depth away from the the delirious cacophony of our world.

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Notes 

1. Monica Ferrando’s L’ elezione e la sua ombra: Il cantico tradito (Neri Pozza, 2022), 8-9.

2. Ibid., 22.

3. Gerhart B. Ladner. The Idea of Reform: Its Impact on Christian Thought and Action in the Age of the Fathers (Harvard University Press, 1959).

4. Monica Ferrando. L’ elezione e la sua ombra: Il cantico tradito (2022), 24.

5. Karl Barth. “The Great Dispensation”, Interpretation, V.14, July 1960, 311.

6. Monica Ferrando L’ elezione e la sua ombra: Il cantico tradito (2022), 30.

7. Gianni Carchia. “Modernità anti-romantica”, in Il mito trasfigurato (Ernani Stamptore, 1984).

8. Monica Ferrando. L’ elezione e la sua ombra: Il cantico tradito (2022), 60.

9. Ibid., 91-92.

10. Ibid., 94.

11. Ibid., 106.

12. On the controversy of music as a tool to tame human’s passions, see John Finnis’ “Truth and Complexity: Notes on Music and Liberalism”, American Journal of Jurisprudence, Vol. 62, 2017, 119-124.

13. Gianni Carchia. “Eros y Logos: Peitho arcaica y retórica antigua”, in Retórica de lo sublime (Tecnos, 1990), 29.

14. Gianni Carchia. “Dialettica dell’immagine: note sull’estetica biblica e cristiana”, in Legittimazione dell’arte (Guida Editores, 1982), 21.

The enemy from the argument of purity. by Gerardo Muñoz

A rebuttal against the notion of enemy frequently hinges on conflating the enemy with total enmity. It usually takes the form of a hypothetical: once an enemy is declared as such, is there anything that can deter the escalation into total enmity? The historical record provides analytical reassurance to the hypothetical, but it does not eliminate its generality, since its ultimate probe is conditioned by an ideal of conceptual purity. Not every hypothetical is idealistic, but every hypothetical exerted from purity is. This concerns any understanding of politics, given that the notion of the enemy presupposes an impure origin of conflict, threats, disorder, or unjustified propensity towards evil. If the enemy is best understood as an operative principle between repression and totalization of enmity, it also entails a rejection of purity as sacralization of the political.

The argument from purity has been deployed with equal force by both Liberalism and Marxism, although they are not the only two contenders. Whereas the first suppresses the enemy from civility and economic utility; for the second, there are no necessary enemies given that politics is a process that will culminate in moral emancipation. For both Liberalism and Marxism, the problem of separation is fixed in two opposite poles: for Liberalism the separation is originary and consubstantial to the genesis of modernity as the separation of Church and State; for Marxism, the separation comes to end in the future collapse of the alienation of ideal and manual labor, and state and civil society. The argument from purity liquidates the enemy as the operative function because it doesn’t consider conflict intra muros on its merits. It is always surpassed or to come.

From the argument of impurity, the notion of the enemy demands that the political be understood as here and now (more than temporal it is topological: externality). Let us consider Shakespeare’s Hamlet. It is a tragedy that stages the friction between the suppression of the political enemy in medieval society and the not-yet autonomy of the political of the moderns. In an old essay Leo Lowenstein noted that Hamlet is an existential limbo as to whether to judge and execute his father’s murderer, or to desist in his decision of revenge and become paranoid crossing the line into madness [1]. The world of Hamlet’s indecision is no longer that of imperium theologiae where the enemy is an entity to be deposed of; but rather it vacillates because it knows the fracture between wrongdoing and action, legality and legitimacy. The malaise of Hamlet condition is the impossibility of enemy mediation: “Shakespeare’s theatre, in general, and his Hamlet, in particular, are no longer ecclesiastical, in the medieval sense. On the other hand, they are not yet a political state theatre, in the concrete sense state and politics acquired on the Continent as a result of the development of state sovereignty.” [2]. The intrusion of historical time reminds us that original separation will not be enough in the face of a concrete conflict.

The tragic dimension in Hamlet is given negatively: the paralysis of not being able to establish the proper mediation to deal with political enmity. This paralysis – or the inconceivable regicide of naturalist theologians – can only amount to madness. Indeed, one becomes one’s enemy, because the enemy (the usurper King) lacks the mediation with its exteriority: “Hamlet is of the faction that is wronged / His madness is poor Hamlet’s enemy…That I have shot my arrow o’er the house / And hurt my brother” [3]. What does it mean to be one’s own enemy, and who could decide here? The incapability of generating an external hostis will prompt bad consciousness and perpetual resentment.

From the side of impurity, the enemy as “one’s own form” means a depersonalization of the political and the neutralization of the stasiological force that places reasons, justifications, and actions as primary ends. But a civil war waged on internal reasons do not imply mediation. From the argument of purity the dismissal of the enemy is no longer Hamlet’s negativity; it turns itself into subjectivism and unfettered self-autonomy that will require not the judge but the priest, and not political form but the police.

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Notes 

1. Leo Lowenstein. “Terror’s Atomization of Man”, Commentary, 1946, 7.

2. Carl Schmitt. Hamlet or Hecuba: The Intrusion of the Time into the Play (Telos Press, 2009), 51.

3. William Shakespeare. The Tragedy of Hamlet (Signet Classics, 1987), 168. 

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.

Hegemony, Legitimacy, and the Mature Position: on Chantal Mouffe’s For A Left Populism. By Gerardo Muñoz.

Chantal Mouffe’s For A Left Populism (Verso, 2018) is deliberately written for the ‘populist moment’. It resembles the patriotic pamphlets, which according to historian Bernard Bailyn fueled passions months prior to the American Revolution. For Mouffe, the crisis of democracy will continue to grow if populism is not taken seriously both politically and theoretically, and her book is an excellent guide in that direction. For A Left Populism does not pretend to tease out new arguments. Rather, it seeks to revise and render accessible some of the main tenants of the radical democracy project that she elaborated, along with her late partner Ernesto Laclau, in books dating back to Hegemony and Socialist Strategy (1985). Mouffe reminds us that their task was to propose a theoretical horizon in the wake of the crisis of Eurocommunism, and against the ‘third-way’ of liberal democracies that dismantled the Welfare State. The populist agenda is ambitious: it proposes a move beyond Marxist liberationism, but in doing so it takes distance from market liberalism of Western democracies.

But what does “left populism” has to offer? For Mouffe the answer is short: a politics for the People, “in the name of the People”, capable of organizing an equivalency of social demands through the construction of a political frontier against a common adversary (the elite). Mouffe is right about the diagnosis: both Liberalism and Communism were attempts to deface the People. Whereas Communism promised a new man in a society outside capital, Liberalism offered the guarantee of happiness for the individual citizen. These two attempts were ways to neutralize social contingency between civil society and state relations. Contrary to the citizen and the subject, populism assumes heterogeneous social actors that vis-à-vis their equivalent demands are capable of radicalizing democracy. This process of radicalization entails that a social dynamic attentive to material needs could avoid the pitfalls of the Marxist historical subject as well as the sedimentary flow of institutions. The strategy that catalyzes such radicalization is the theory of hegemony (Mouffe 24).

Now, the logic of hegemony introduces an array of important elements for the radicalization thesis. First, hegemony, according to Mouffe, is what effectively disputes the “consolidation of neoliberal hegemony in Western Europe” (Mouffe 33). In a way, hegemony here takes the form of an avatar of the existing order of domination; a political transposition of capitalist reproduction. In fact, what hegemony shares with capitalism is the formalization of equivalence. Secondly, hegemony is understood as the missing tool in liberalism, which shrinks democratic life (Mouffe 38). Finally, hegemony emerges as an alternative to communism’s eschatology by accepting the current institutional designs in pursuit of ‘passion for equality’ (Mouffe 43). Common to all of these arguments is the main claim that only hegemony can rescue democracy from its post-political gloom. Hence, the theory of hegemony posses two important edges: one is descriptive and the other one is prescriptive. On the one hand, neoliberal postpolitics is already hegemonic. In other words, it does not allow an outside to what is provided by the general equivalent. On the other hand, hegemony appears, following Antonio Gramsci’s lessons, as a central political force that can transform the real-existing order.

But as political philosopher Jorge Yágüez has noted, Gramsci considered hegemony as a passive development that cannot be merely reduced to a political technique of state domination [1]. Mouffe would reply that she is not interested in gramscian textualism, but rather in the practical uses well beyond his original intentions. That is fair, but at the same time there is no reason to think that Gramsci’s theoretical horizon was more complacent under the sign of radical revolution than in the republican separation of powers or popular sovereignty. In fact, there is something to be said about Mouffe’s efforts in trying to move the discussion about populism outside the sociological determinations. Mouffe is aware that rendering the notion of hegemony effective within liberal-democratic order requires attending to the problem of legitimacy. Indeed, in one of the cardinal moments of For A Left Populism, Mouffe writes:

“A liberal-democratic society supposes the existence of an institutional order informed by the ethico-political principles that constitute its principles of legitimacy. What is at stake in a hegemonic transformation is the constitution of a new historical bloc based on a different articulation between constitutive political principles of the liberal-democratic regime and the socioeconomic practices in which they institutionalized. In the case of a transformation from on hegemonic order to another, those political principles remain in force, but they are interpreted and institutionalized in a different way” (Mouffe 45).

By disposing the idea of a drastic rupture in institutional life, hegemony accepts the liberal-democratic framework in exchange for coming to terms with the principle of legitimacy. But if we are in an epoch that has gone through an absolute decline of founding principles, is a “different way” of management enough? In studying the administrative state, for instance, I have argued that legitimation, once centered on charisma, has ceased its domain to administration. This means that legitimacy becomes synonymous with technique, and the political leader becomes synonymous with the bureaucrat.

How does hegemony stand in relation to legitimacy? Hegemony can stand as a superstructural element above it, but it can also become the principle of legitimacy itself to renew democracy. Mouffe is not explicit about this, except when she considers the Gramscian notion of the ‘integral state’ as significant to remake the contract between state and society (Mouffe 47). It is curious that this formulation coincides with José Luis Villacañas’ recent preface to Gramsci’s prison notebooks [2]. Let me briefly turn to Villacañas’ text.

For Villacañas, hegemony does entail a substitute of the legitimacy principle, now in crisis, which can open a transformative epoch beyond the domination of economy. Villacañas and Mouffe converge on this point: the essence of hegemony juxtaposes the political region against the economic region. But where as for Mouffe hegemony operates to defend and radicalize the principles of democracy, for Villacañas, hegemony is a “civilizational principle” that secures an ethical state in the form of a passive revolution (Mouffe 49, Villacañas 19). But, can legitimacy be resurrected from a political will unified under hegemony? There are two possibilities here. If we say that hegemonic populism is a struggle to politize a post-political scenario, then hegemony is merely a temporal stand-in to the current legitimacy. On the other hand, if we say that hegemony is a principle of legitimacy, what can guarantee its force is the cathexis between the political leadership (“clase dirigente”, says Villacañas) and the People. In reality, neither of the two options have the capacity to offer a social contract to reform democracy.

Mouffe claims that hegemony stands for identification via “different forms of subjectivities” (Mouffe 76-77). In other words, hegemony is a form of subjection. This means that in order to partake in hegemony you must necessarily be subjected to it. The civilizational drive of hegemony repeats the same step that led to the crisis of democratic politics in the first place, since it reduces democracy to a legislation of demands for recognition. It is not surprising that the minimal unit of equivalency is the demand. Thus, hegemony is first and foremost the demand to be a subject of hegemony. This is why leftist democratic politics based on hegemony is a self-defeating mechanism: it promises conflict but it reduces it through an empty signifier; it promises to displace the historical subject but it relocates it through equivalent subjective agglutination; it cares for legitimacy but it offers management not very different from the liberal paradigm. In this way, hegemony reintroduces politics as administration cloaked under political cordiality [3]. But we know that no effective politics were ever created on the basis of love or good intentions or unity.

If neoliberalism upgrades the “totalitarian” aspiration onto its economic indexation of life, as Argentine psychoanalyst Nora Merlin has argued, then the concept of hegemony runs the risk of absolutizing political domination as its substitute principle [4]. By reminding faithful to principle of unity and equivalence, the logic of hegemony tends to reproduce the results that it attempts to avoid. In other words, hegemony merely displaces the technique of the economy to a technique of the political. Is there a different position without discarding populism and moving back to liberal technicity? It is interesting that Mouffe mentions in passing posthegemony, which she reduces to an “affective turn” that ignores the lessons of psychoanalysis (Mouffe 74).

I would like to argue, on the contrary, that posthegemonic populism is the mature position that avoids the closure of conflict internal to hegemonic rationality. In fact, if psychoanalysis were to be taken seriously, hegemony would amount to yet another master discourse that aims at administering singular desire through a two step procedure: vertical cathexis and horizontal agglutination. The hegemonic recentralization of conflict leads necessarily to the closure of other potential conflicts and risks. Posthegemony, on the other hand, names the political position that aims at liberating the conflictive nature of politics within any democracy. It comes as no surprise that at the very end of her essay, Mouffe comes full circle to posit faith in “certain forms of consensus” once hegemony has been accepted as the logic of the political (Mouffe 93). By insisting on the optimization of conflicts, rather than in its verticalization, posthegemonic populism would allow turbulence in politics beyond the dead end of consensus.

A hegemonic alternative to legitimacy not only fails to renew democratic life, but it taxes life on behalf of the political. In this sense, by becoming a technique of dominance hegemony is incapable of transcending the antinomies of state and civil society, politics and economics at the root of the crisis. In broader terms, we know that the disintegration of the modern state form is neither an economic nor a political problem, but one of a deeper symbolization as a result of the primacy of legality over legitimacy, something that Carl Schmitt noted in his later works [5]. Hegemony can only offer a political legislation out of the crisis, but not much more.

Legitimacy is vital for democracy. But hegemony cannot do the work, except as faith. Democratic politics, however, is precisely what is incommensurable to beliefs. By positing hegemony as integration from within, Mouffe leaves us with an alternative political theology. This political theology works solely on behalf of its believers. The posthegemonic position concedes Mouffe & Laclau’s formula a winner for democratic politics, but it prefers to recognize conflicts at face value; that is, not as a question of principles, but rather of optimization beyond the intended precautions. It seems that this is the mature position for populism if it wants to be successful today.

Notes

  1. Jorge Álvarez Yágüez. “Retorno a Gramsci” (2017). https://dialnet.unirioja.es/servlet/articulo?codigo=6135405
  2. José Luis Villacañas. Pasado y presente: Cuadernos de la cárcel. Prefacio de J. L. Villacañas Berlanga. Barcelona: Gedisa, 2018. See also, the debate between Villacañas and Moireras on hegemony & posthegemony: https://infrapolitica.com/2018/06/23/respuesta-de-jose-luis-villacanas-a-precision-sobre-posthegemonia/
  3. Antoni Puigverd, “Hegemonía de la cordialidad” (2018): https://www.lavanguardia.com/opinion/20180709/45776820190/pedro-sanchez-parlament-torra-cordialidad.html
  4. Nora Merlin, “Neoliberalismo, el retorno del totalitarismo por otros medios” (2018): https://www.eldestapeweb.com/neoliberalismo-el-retorno-del-totalitarismo-otros-medios-n46759
  5. For Carl Schmitt’s critique of values and a self-critique of his concept of sovereignty, see The Tyranny of Values (1996) and Glossarium (2015).

A Constitutional Absolutism? On Philip Hamburger’s The Administrative Threat. By Gerardo Muñoz.

AdministrativeThreatPhilip Hamburger’s most recent book, The Administrative Threat (Encounter Books, 2017), is a legal pamphlet as well as constitutional call to arms of sorts. Deliberately written for the general public with the intention of popularizing the central tenets of his otherwise more technical work Is Administrative Law Unlawful? (U Chicago Press, 2015), Hamburger fuses a warning with a call to question the increasing danger posed by the expansion of the administrative state in American public law. In his view, no other force and legal development is undermining the core and purpose of civil liberties as much as administrative law, which today extends to all spheres of social life. This bureaucratic power is not only an existential threat to personal freedoms, but also a betrayal to the original intent of the Constitution.

The idea harboring this perception is that decision-making is only possible on purely market or commercial grounds, which administration continuously obstructs under the guise of regulation. The book cuts sharply through a martial tone: “For better understanding of the administrative threat one must turn to law…for although much administrative state power is economically inefficient, all of it is unconstitutional” (Hamburger 2). But how did the development of legality and American public law reached such a boiling point? This a question that Hamburger must sidestep, and at times reduce to a barely credible narrative regarding a handful of American scholars that studied German administrative law at the turn of the last century. Hamburger accurately notes that in the last century (roughly from 1917 to 2017), there has only been ‘rise and rise’ of administrative delegation. This is undeniable. James M. Landis records in The Administrative Process (1938) about 12-14 federal agencies in 1933. Today there are between 240-456 federal agencies, including sub-agencies, quasi-agencies, and departments. And as if more alarm is needed, each landmark opinion through the century by the Supreme Court has incrementally extended agency statutory powers for execution and judicial interpretation.

In what follows, I want to critically comment the three premises that support Hamburger’s attack on the legitimacy of administrative state: 1. a historical comparison with the King James monarchy in order to make the case that we are returning to a regime of legal absolutism; 2. that we are witnessing the corruption of the separation of powers, which has expounded extralegal boundaries; 3. and the libertarian assumption that civil liberties are prey to the tyrannical might of the administrative state. Hence, as Hamburger says verbatim, the administrative state is fundamentally disloyal to at least two tiers of governmental authority: on the one hand, to an arcana, and on the other, the more real ground of civil liberties and negative freedom (Hamburger 23). While the first lies in that of the level of principle, the second forms that of integrity. It is important to note that, as Hamburger does at the outset of the book, his critique is at the level of legitimacy. Hence, he is not necessarily interested in putting forth a critique of political economy or regulatory reform, which would entail an acceptance of the administrative state one way or another.

Let us take the first premise, which assumes that the administrative state brings about a new absolutism. Hamburger establishes a comparison with King James’s absolute monarchy, which represented a model of constant prerogatives and forms of adjudication to agency discretion, in permanent conflict with legislative decision-making, and interpretative authority of judges. For Hamburger this all takes place in the present, but the situation is much worse, since the administrative state seems to have achieved King James’ absolutist intention. For instance, Hamburger writes: “the lawmaking interpretation that James desired for his prerogative bodies has become a reality for American administrative agencies. Federal judges’ show varying degrees of deference to agency interpretations, and the agencies therefore can use their interpretation to create law” (Hamburger 9). Ultimately, this means that administrative agencies have come to inhabit a sort of juridical monad that can interpret, execute, and legislate its statutory norms and facts in clear violation of the principle of the separation of powers.

Hamburger observes the watershed 1984 decision Chevron vs. National Resources Defense Council, in which Burger Court decided that every time there are statutory ambiguities, judges must defer to agency for clear interpretations, with horror. This does not mean that an agency will rule every time on the agency’s behalf, but it has come to establish what is known as the principle of ‘deference’ in a two-step model. Mainly, that if Congress does not express direct intent on the statute, the agency can uphold the interpretative prerogative for clarification of any ambiguous component. The deference principle to agencies not only violates the principle against subdelegation (the common law axiom delegata potestas non potest delegari), but more importantly for Hamburger it confuses the spheres of interpretation and execution in the hands administrative quasi-judges. The prefix hints at the fact that experts and technicians of different epistemological spheres now have entirely displaced the imperial pretensions of the independent judicial branch. At the same time, we know that there are no judges freed from inter-dependence, and that the very legal process is always politically binding [1]. This transformation does entail that the judiciary is noww marginalized to a thin discretionary position to arbiter reasonable goals.

Furthermore, it is not the case that the way deference is understood in American administrative law hinges on a principle of sub-delegated power. Adrian Vermeule has convincingly argued how the specification of statutes is conceived within the executive branch [2]. Hamburger insists, however, in that “administrative power resembles old absolutism” (Hamburger 14). Absolutism is defined as extra-legality, and as a fundamental and consistent evasion of law (sic). Curiously, Hamburger fails to explain in which way the expansion of the administrative state legality has moved the boundaries unto an extra-legal domain over time. The administrative state cannot amount to a new monarchism for the simple reason that there is no monarch who is deemed as the sovereign mediator capable of dispensing his potentia absoluta without retrains.

The administrative state is a process of self-rationalization towards judicial abdication to experts, abandoning the empire of courts towards reasonable decision-making. It is an enterprise to limit incongruousness and contingency. As we know, this is one of the trademarks of the modern legitimacy. In other words, the administrative state follows integrity, and not the arcanum of political theory. This is something Landis already had in mind in the 1930s [3]. If absolutism is grounded in a principle of contingency and theological nominalism, modern rationality and administration bends towards rationalization of law’s integrity [4]. In doing so, the administrative state is a highly sophisticated machine to regulate all possible risks. Here the question of a constitutionalism of risk within the expansion of the administrative delegation becomes relevant.

Hamburger, in a sense, seeks to revive the specter of Elizabethan judge Edward Coke, while ignoring that the becoming of the administrative state has pluralist aims, at odds with vertical decision protocols vested in the absolute sovereign [5]. The administrative state is a modern legal development, and any comparison to the English monarchy is a serious bend. From a historiographical standpoint, Hamburger’s premise is also ambiguous when he writes: “Early Americans, however, were familiar with English constitutional history, and they therefore were well aware of the danger from the absolute power and its extralegal paths” (Hamburger 19). It is not the case that there is a firm consensus about the patriot political beliefs about presidentialism or the British Monarchy. Eric Nelson in his landmark The Royalist Revolution (2014) has studied how republican patriots were comfortable with ideas of strong centralized executive power in fear of the British parliamentary form regarding commerce and taxation. And here one should ask to what extent the imperial presidency could also be justified on “originalist” grounds. But this is beside the point, since the legal development of administrative law is one thing, and the Atlantic political theory is another.

This takes us the second point regarding the separation of powers. The main problem with Hamburger’s account is that it fails to engage with Adrian Vermeule’s sound critique in Law’s abnegation (2016) of a certain political attachment to an idolatrous understanding of the separation of powers. Vermeule terms ‘idolatry of the separation of powers, in reference to a mechanic execution of the three branches (legislative, executive, and judicial). In this framework, anything that is excess to it is part of a narrative of betrayal. But it should not be so. This is what Landis called rather humorously the “attachment to the number three”:

“To condemn the administrative process simply because it is a fourth branch of government is not to consider what a branch implies. Four, five, and six branches of government may, of course, coexist without violating Montesquieu’s maxim, for the ultimate source and the ultimate division of power remains the same. It is the relations of the administrative state’s three departments of government that are important”  [6]

Needless to say, a mechanistic fixation to the tripartite separation of powers fails to account for the ways in which the administrative state is already an expression of specifically allocated knowledge, decisions, and state-national-agency conflicts over a long period of time.  The question that should be asked is not in which way the administrative state profanes a sacrosanct Madisonian separation of powers structure, but rather whether there are powers in separation that are legitimate within the classic design of contemporary government, which is what Vermeule brings to bear in his important book [7]. The fact that Hamburger is silent about the different arguments made on behalf of the administrative state’s legitimacy (Landis, Kagan, or Mashaw ), speaks about his originalist obliviousness to historical and legal evolutionary nature of the separation of powers. As a process of self-rationalization, the legitimacy of the administrative state is rooted in its immanent force against any transcendental arcanum. Hence, the way to test the status of legitimacy is not by probing on the grounds of the separated powers in 1789 or the seventeenth century, or in terms of what Madison or Montesquieu thought of them, but rather on how well those powers today can withhold actions within a frame of reasonable judgment regarding the material need of the res publica. The administrative state does not stand for a vicarious being, since its delegated powers are not ideal immovable concepts, but rational conditions for risk management of human action.

This leads me to the third and final premise of The Administrative Threat. Hamburger does have something to say about the current condition of citizenship, and it comes by way of the libertarian defense of civil rights. The idea here is that the administrative state trumps individual rights in the name of “public” rights, which Hamburger calls a “disgraceful assault on the Bill of Rights and the due process” (Hamburger 35). This argument is supplanted with a meditation on the historical valance between voting rights and the administrative state. Going as far as to the Wilson presidency, Hamburger shows that throughout the twentieth century, bureaucracies were at odds with the voting rights of disfranchised minorities. Of course, the implicit assertion here befalls on a defense of the courts, primarily the judicial activism of the Warren Court, which Bruce Ackerman, on the opposite side of the political spectrum has called the last legal revolution in American constitutional development [8]. This is even truer today in light of the Shelby County decision, and the rise of Kris Kobach or Jeff Sessions to national public office, both intellectually committed to voting suppression [9]. One could say that both Hamburger and Ackerman, albeit in very different ways, lament the dawn of the traditional judicial authority. But even if there were a one-direction movement between the expansion of rights and the rise of the administrative state, it seems illogical to defend a return of a court-centric model on the basis of past historical experiences.

If we are, indeed, at the end of the court-centric legal revolution model, are we to assume that the dismantling of the administrative state will restore its capacities? I am doubtful of the eschatological weight of such a proposal. And if voting rights is a concern for Philip Hamburger, why isn’t electoral reform an optimal option for democratic expansion? Of course, this would necessary entail something like a Federal Voting Commission, which would in turn require more of the administrative state. But we are in no position to think that if we were to imagine the end of the administrative state (even as a thought experiment), a new type of liberty would be distributed across the board.

Since today we are facing the end of the state form, any historical analogies with the past tremble on very weak grounds. Furthermore, we know that beyond the moment of casting a vote a ballot, a civil equality protection really amounts, as Anatole France used to say, to whether we chose to sleep in a park bench or under bridges. While might be true is that the administrative state is a neutralizer of political dynamics, to use the language of Carl Schmitt; it is in no way reasonable seek its destruction in the name of a libertarian ideal of freedom within an unequal social space. It is defeatist to turn to political theory in exchange for the integrity of administrative legality, as Hamburger seems to do here.

It is rather strange for a libertarian to end a book on a legitimacy crisis quoting Lenin. But there is another implicit paradox here on Hamburger’s part; mainly, that while Lenin offered a theory of state, we cannot say the same for Hamburger. The modern state was able to implement and model itself with commerce, but much harder is to image a state emerging from contemporary anarchic markets. Hamburger writes in a section sarcastically subtitled what is to be done?: “Lenin asked his fellow Russians, “What is to be done?”. Fortunately for Americans, the answer is not revolution but a traditional American defense of civil liberties. To this end, Americans will have to work through all three branches of government. Of course, none of the branches have thus far revealed much capacity to limit administrative power” (Hamburger 61). This is a self-defeating argument, since as Vermeule has argued quite convincingly, even if one could ‘magically’ undue the administrative state and return to the original institutional design of 1789, it will evolve into the administrative state. This is an argument centered on the integrity of the American legal development that Hamburger needs to ignore in order to render somewhat possible the return to the  idolatrous originalism of the separation of powers and principled judicial review. The other part of the ‘what is to be done’ plan resonates with a populist overtone: “Ultimately the defeat of administrative power will have to come from the people. Only their spirit of liberty moves Congress, inspires the president, and braces the judges…” (Hamburger 64).

But who are the People? Is We The People the progressive mobilizing force within a constitutional regime? Is the People here a spirit or idea for the return to the courts? It is difficult to say, mainly, because Hamburger himself has no idea either. I take this to be the impasse of libertarian and liberal thought facing the irreversibility of the administrative state. This explains why libertarians, at times, equate deregulation with lessening the administrative power. This impasse is, in effect, the same currently stamping Trump’s strange brand of populism, which has, on one end, the mission to ‘destroy the administrative state’, and on the other, the nationalist protectionist banner to cushion transnational market forces. For better or worse, neither of these two goals seems plausible together. At best, they represent a double-bind of the liberal impasse. Only in this sense, the administrative state is a temporary katechon [10].

The trumpist complexio oppositorum in the form of a schizophrenic symptom is showing, paradoxically, that the administrative state will only be reinforced through new checks and balances emerging from executive administrative inefficiency. We are now in conditions to reach a somewhat different conclusion from that of Hamburger’s: we are far from an absolutist monarchic regime, since the human cannot endure the absolutism of reality devoid of a sense of anticipation [11]. The principles of delegation and anticipation seem to be two components of the administrative state that have their legitimacy in modern self-rationalization. In the end, it might be Hamburger who, in validating an ostensible and yet dissolute world beyond administration, promises the humanity an archaic absolutism of an unbearable nature. However, no man can live in the absolute. But even if we are to image an alleged triumph of an original law under the supervision of a New Coke, this would require in the form of an eternal recurrence, the invention of the administrative state.

 

 

 

 

Notes

  1. See Braden, George D., “The Search for Objectivity in Constitutional Law”, Faculty Scholarship Series. 4031, 1948. However, for a contending non-political moral stand of the judicial process, see Alexander Bickel. “Constitutionalism and the Political Process”, in The Morality of Consent. New Haven: Yale University Press, 1975.
  2. See Vermeule’s argument on the lawfulness of administrative law on the principle of delegation through executive power in Law’s Abnegation (2016), 50-54 pp.
  3. Landis will write in The Administrative Process (1938): “A similar development with reference to the administrative seems more a matter of time than of political theory, of demonstration by the administrative that intervention of this character is futile and tends more to prejudice than to further a client’s cause”. 102-103 pp.
  4. Hans Blumenberg. Legitimacy of the Modern Age. MIT, 1985. 125-205 pp.
  5. Sunstein, Cass & Vermeule, Adrian. “The New Coke: On the Plural Aims of Administrative Law”. The Supreme Court Review, Number 1, Volume 2015.
  6. Landis, James M. The Administrative Process (1938). 88 pp.
  7. Vermeule Adrian, Law’s Abnegation: from law’s empire to the administrative state (Harvard U Press, 2016). 56-87 pp.
  8. Ackerman, Bruce. We The People III: The Civil Rights Revolution. Cambridge: Harvard University Press, 2014.
  9. Berman, Ari. “The Man Behind Trump’s Voter-Fraud Obsession”. New York Times, June 13, 2017. https://www.nytimes.com/2017/06/13/magazine/the-man-behind-trumps-voter-fraud-obsession.html
  10. On the administrative state as a counter-schmittian katechon, see my “The administrative state as a second Leviathan: a response to Giacommo Marramao”. Although I do not mean by any means that the administrative state is a universal katechon in the way that the Church and the early modern state were, but this I will try to develop somewhere. https://infrapolitica.wordpress.com/2017/05/25/the-administrative-state-as-second-leviathan-a-response-to-giacomo-marramao-by-gerardo-munoz/
  11. On the absolutism of reality and the anthropogenesis of anticipation as an intrinsic separation of powers, see Hans Blumenberg’s Work on Myth (MIT, 1985). 2-40 pp.

Illegitimacy? Review of Giorgio Agamben’s The Mystery of Evil: Benedict XVI and the End of Days. By Gerardo Muñoz.

agamben mystery 2017Giorgio Agamben’s Il mistero del male, now translated in English as The Mystery of Evil: Benedict XVI and the End of Days (Stanford U Press, 2017), is an intense repudiation of the mundane legitimacy of every institution, costume, and political structure hitherto existing on earth. For Agamben, the decline towards illegitimacy has not been a matter of a few years or decades, but part of a larger inherited drama. The core of the book reads Benedict XVI’s “great refusal” as an ‘exemplary act’ [sic] against the Church, bringing to awareness a vital “loss of substantial legitimacy” (Agamben 3). Overstating the dual structure characteristic to Western governmentality – potestas and autorictas, or economy and mystery, legality and legitimacy – Agamben asserts that Ratzinger’s gesture cuts through the very thicket of the ekklesia arcanum, reversing the mystery of faith in time to the point of abandoning the very vicarship of Christ (Agamben 5). Of course, this comes as no surprise to those that have engaged with his prior The Kingdom and the Glory (2011), where Agamben interprets the Trinity as a stasiological foundation of an oikonomia that plays out (vicariously) as a praxis without Being [1].

In many ways, this essay is supplemental to the larger turn already undertaken in The Kingdom, only that this time, Agamben brings to focus a seminal institution of the Western political tradition. Here Agamben seems to be pressing more heavily on the state of global affairs in which the Church is a metonymy: “…if this gesture interests us, this certainly is not solely insofar as it refers to a problem internal to the Church, but much more because it allows us to focus on a genuinely political theme, that of justice, which like legitimacy cannot be the eliminated from the praxis of our society” (Agamben 16-17). This is consistent with overall structure of The Kingdom, by which the structure of the oikonomia is understood vis-à-vis the true ‘providential machine’ of human administration. So every administrative structure is illegitimate, since for Agamben, it governs through de-substantial vicarious being. It is a true ‘kakokenodicy’ (referring to the emptying) that can only justify effective evil (Agamben 36). To the extent that Agamben’s overarching project seeks to establish a responsive unity to the problem of discessio or internal division, it is not difficult to grasp how Benedict XVI’s return to Tyconius’ obscure thesis of the Church composite of good and evil is highly relevant, as we shall see.

We are far from Augustine’s City of God, where the split was produced between two cities, allowing for what Erik Peterson understood, against Schmitt, as the impossibility of any political theology. Tyconius is, in a sort of way, the persistence of an Anti-Augustinian gnosis. Agamben’s effort, let’s be clear, tries to make Augustine a son of Tyconius, which makes it even more mysterious; since whereas Augustine separated Church and Empire, Tyconius separates evil and good in the temporal katechontic nature of the Church (Agamben 10-11). Agamben cites Illich’s testimony to claim that the Church is always already mysterium iniquitatis as corruption optima pessima (the worst possible corruption of the best). But once again, Agamben seems to be forcing positions, since whereas for Illich the Church, consistent with Augustine, allowed for ius refomandi (reform), Agamben posits discessio as the arche of the corporeal Church, in this way reintroducing the myth of political theology to stage the mysterical drama of History.

In a strange sense, the mystery is not that mysterious. It becomes messianic eschatology on reserve. According to Agamben’s narrative, the Church as a dual nature of opposites, possesses an internal stasis between a temporal restrainer (katechon), the evil that runs counter to against law’s integrity (anomos), and the eschatological dimension of the End. This last character points to the Pauline’ messianicity, which allows Agamben to link Benjamin and Tyconius’ in a common salvific structure. As he writes: “The mysterium iniquitatis…is a historical drama, which is underway in every instant, so to speak, and in which the destiny of humanity, the salvation or fall of human beings, is always at stake.” (Agamben 14). Benedict XVI is a counter-katechon, as he is able to reveal, in his exodus, the eschatological structure that leaves behind the vicarious economy. According to Agamben, Benedict XVI’s message was “nothing but the capacity to keep oneself connected to one’s own end” (Agamben 16).

On the reverse, this entails subscribing a messianic turning of life from within the Church in order to posit a metapolitical form without remainder. The renunciation of the katechon implies that we are left with an economy (oikonomia) devoid of legitimacy. The central problem here is that history itself has become mystery of the economy, instead of an economy of mystery, which is the Pauline arche. What compensates for this illegitimacy becomes messianic politics that “does not remain a mere idea, entirely inert and impotent in the face of law and economy, but succeeds in finding political expression in a force capable of counter-balancing the progressing leaving out onto a single technico-economic plane of the two coordinated but radically heterogeneous principles [legitimacy and legality] that constitutes the most preciouses patrimony of European culture” (Agamben 18).

But if the machine of governance of the West is dual, playing legitimacy and legality in a skirmish co-dependency, why does Agamben conflate the renewal of legitimacy to the coming of a new politics? The reason seems to be that once you accept the condition that what exhausts government is an economical structure of the Christian katechon, you can then accept as exodus a metapolitics of salvation. What is interesting is that this politics, seemingly against Schmitt, actually re-enacts the same movement for an exact, albeit reverse, political trade-off. Agamben does not follow Peterson here. Let us recall that Peterson’s argument was never that the Church is an oikonomia, but that Schmitt’s totalizing and unifying political theology applied not to the Church, but only to Empire. This principial politics, as we know, has always led to catastrophic dominance, from Rome to Christian Monarchy to Nazi Germany. Counter to Schmitt, Agamben wants to produce not an imperial katechon, but “a time of the end, [where] mystery and history correspond without remainder” (Agamben 30).

The problem becomes that in order to set the stage for such “drama”, Agamben needs to avoid at all costs the Augustinian/Petersonian split of the Church in its facticity (as it actually happened). This explains why, in the second essay, history is understood as mysterical. In this context, it is noteworthy that Peterson is fully absent, even though he famously authored the essay “The Church”. There he writes in an important passage:

“The worship the Church celebrates is public worship and not a celebration of the mysterious; it is an obligatory public work, a leitourgia, and not an initiation dependent on voluntary judgment. The public-legal character of Christian worship reflects the fact that the church stands much closer to political entities like kingdom and polis, rather than voluntary associations and unions” [2].

I highlight Peterson’s reference to the “the mysterious”, because this is an explicit polemical stance against Casel, the Benedictine monk that informs Agamben’s mysterical adventure in history. But this has important implications, only two of which I will register here. First, accepting Casel’s mysterical Church leads us to conclude that internal worldly illegitimacy requires that we embrace a messianic politics ‘again’ (Agamben 38). In fact, politics is ultimate salvation in Tyconius, Casal, and Benjamin.

Secondly, mysterical historicity demands voluntary filiation. Agamben lays this out in plain sight: “it is in this drama, always underway, that all are called to play their part without reservation and ambiguity” (Agamben 39). Messianism forces agonic politics, displacing administrative vicarship with a conceptual theodicy. But profane life does not need to coincide with or abdicate a metapolitics of salvation. Now, if this is so, perhaps the accusation raised against governmental structure as illegitimate is in itself not legitimate. What if instead of being on the side of the metapolitics of the eschatological mystery, legitimacy is nothing other than the internal rational enactment of the separation of the profane that is always taking place in the world?

 

 

Notes

  1. Agamben writes in The Kingdom and the Glory (2011): “And, more generally, the intra-Trinitarian relation between the Father and the Son can be considered to be the theological paradigm of every potestas vicaria, in which every act of the vicar is considered to be a manifestation of the will of the one who is represented by him. And yet, as we have seen, the an-archic character of the Son, who is not founded ontologically in the Father, is essential to the Trinitarian economy. That is, the Trinitarian economy is the expression of an anarchic power and being that circulates among the three persons according to an essentially vicarious paradigm… The mystery of being and of the deity coincides entirely with its “economical” mystery. There is no substance of power, but only an “economy,” only a “government.” 138-39 pp.
  2. Erik Peterson. “The Church”. Theological Tractates (Stanford U Press, 2011). 38 pp.

 

Legitimacy and the administrative state. By Gerardo Muñoz.

To follow up on my previous responses (that can be read here and here) in conversation with José Luis Villacañas’ lecture on Weber and populism, I want to return one more time to the question of legitimacy. I do not want to repeat what I have already said in the other commentaries, rather this time I want to specify the nexus between the administrative state and legitimacy. That is the purpose of this commentary, anticipating a more elaborate presentation of this problem in an upcoming conference at the University of Rome.

The heart of the problem can be laid out in a straightforward manner: is the administrative state legitimate? And if so, from where does the administrative state derive its legitimacy? For a moment I’ll leave aside the fact that for a wide range of legal scholarship, bureaucratic order itself is a material source of legitimation, in part because administration purports separation of the private/public spheres, and deters corruption, thus upholding the well-being of the social. But this answer is in itself tautological and needs of descriptive substance.

Here I find Adrian Vermeule’s typology of the legitimatization of the administrative state helpful and pertinent for a number of reasons. For one, it allows me to affirm my position in this debate [1]. As Vermeule fleshes out, the question of legitimacy of the administrative state is not new, and only recently – that is, the post-Reagan period, once the Federalist Society began having effective impact in the wake of the Neo-Conservative movement – has the legitimacy of the administrative state been challenged on the basis of it being inconsistent with the separation of powers (Epstein 2008, Hamburger 2014).

I cannot go into details about the reason of this development in the space of this commentary. Let me jump right into the analysis. Vermeule notes that the way in which the legitimacy of the administrative state has been posited – from the New Dealers of the 1930s to the current Supreme Court – takes different paths to understanding the core problem of “independence”. This is of no minor importance, since independence of the legislative deference and execution of an agency statute, has everything to do with what Moreiras and Villacañas understand as the reduction of the factual condition of domination. This is also a crucial premise as to move in the direction of a posthegemonic democracy, regardless of how it is defined and developed in each case.

Vermeule insists that “independence” has a heterogeneous form of legitimation of the administrative state in three main tracks (it does not mean that there are only three, but at least these have been highly influential): 1. the one posited by James Landis in Administrative Process (1938) who sought to provide independence of the administrative agency from the executive power; 2. Louis Jaffe’s formulaic deference of a strong position of independent judicial review of agencies; 3. Kagan’s inversion of Landis, who in the early 2001, interprets “independence” of the President against interests groups, or crony interest-restricted legislators. Regardless of the different premises and relational valences of these forms of administrative law, I agree with Vermeule that they affirm a common and perhaps dual legitimization value: to establish independence and internal legal pluralism.

There is good and bad news here for Republicanism. First, the bad news: the forms of legitimization of administrative law emerge in the wake of the crisis of the traditional Madisonian division of powers. However, the crisis of the archaic formulation should not produce neither horror nor nostalgia. In any case, this is an aspect that must be discussed after Villacañas’ own philosophical defense of the division of powers in genealogy of the Western tradition in his Teología Política Imperial (Trotta, 2006). As for the good news: the hermeneutics of administrative legitimation are affirmed on the ground of the equilibrium and an internal pluralism, which is how Vermeule establishes his stance against contemporary anti-administrative libertarians. This entails that the administrative state is not the abdication of the rule of law in a drift towards tyranny or unpopular rule, but rather part of an elastic historical development in a complex field of tensions [2].

Why is this important for thinking populism today? For one, because Villacañas’ Weberian position even when placed in the “factual grid” of the administrative state, perfectly convergences with Elena Kagan’s position (the third path of legitimation). In fact, Vermeule describes Kagan’s most important and enduring contribution in a way that we could also ascribe to Villacañas:

“A constitutional vision that attempt to combined two intellectual and constitutional strands that had often been assumed to be in tension with one another, or even outright contrition. The first strand was technical administration, whose major tool is quantified cost-benefit analysis; the second was Hamiltonian political leadership by an energetic elected President, who hallmark is accountability to a broad national public” (Vermeule 18).

This is precisely what Villacañas’ response to me meant regarding the potential dismissal (in Castilian: “la patatada en el culo”) of the charismatic leader when he fails to meet the material needs of the People. In effect, this is completely consistent with Weber’s defense of presidentialism in “The Reich President” (not really the same as “charismatic leadership”), as a form of the checking the bureaucracy in line with the Hamiltonian vision of the modern state [3]. So, here is the big picture: whereas Landis favored anti-Presidentialist stance during New Deal legislation, in the case of Kagan it is the figure of the President that can advance the needs of the People in any given circumstance. It is interestingly enough that President Obama (who was a constitutionalist) followed more the track of Landis and not that of Kagan.

It is clear why Kagan needs to embrace a thin margin of presidentialism as a process of legitimation, since to do so entails reducing the ascending problem of factionalism, narrow interests, bad administration, or even more recent problems such as big financial conglomerates (Vermeule 23). Here the contending debate between populism as charismatic leadership (Villacañas), and an anarchic populism (Moreiras) on the other is also properly defined. Whereas I agree with Kagan and Villacañas that presidentialism could buffer certain corporate interests (“la casta”, in Podemos is a perfect example) and the weight of agencies, I also agree with Moreiras that then this could only mean that the “President” is no longer a political figure, but rather a mere administrator, a gestor [4]. The President becomes the perfect justification of an Enlightened monarch (in a phrase revered by Peterson in his response against Schmitt’ political theology): the King rules but does not govern. But I would add, he does function as a filter for what Vermeule calls “accountability to a broad national public”, which is synonymous with what Villacañas calls the “material interests of the People”.

I end with a question to align a few problems for further investigation: if the President is a mere filter in a complex structure that is the political fabric of the administrative state today, isn’t he already a sort of de-centralized and an-archic figure? Also: can there be, for instance, a concrete moment of demand of the People if there are only administrative agencies? Only placed in this backdrop does posthegemonic populism becomes clear: neither effective administrative law without the expansion of the democratic demand, nor effective or defective presidentialism. After all, no threat of factionalism has been tamed from a secure position of leadership without, at the same time, necessarily bending towards the expansion of its own (imperial) hegemony, which always amounts to the phantasm of a corrupted legitimacy.

 

 

 

Notes

  1. Adrian Vermeule. “Bureaucracy and Distrust: Landis, Jaffe, and Kagan on the Administrative State”. Forthcoming, Harvard Law Review, 2017.
  1. For Adrian Vermeule, the crisis of legitimacy is actually is greatest strength. See, “What Legitimacy Crisis?” CATO UNBOUND (May 9, 2016). https://www.- cato-unbound.org/2016/05/09/adrian-vermeule/what-legitimacy-crisis
  1. Max Weber presents in “The Reich President” (Social Research, 1987) a defense of presidentialism that is the principle to both Villacañas and Kagan: “For the great movement of democratic party life which develops alongside these popular elections will benefit parliament as well. A president elected by means of particular constellations and coalitions of parties is politically a dead man when these constellations shift. A popularly elected president as head of the executive, head of office patronage, and perhaps possessor of a delaying veto and of the authority to dissolve parliament and to call referenda, is the guarantor of true democracy, which means not feeble surrender to cliques but subjection to leaders chosen by the people them.” 132 pp.
  1. Alberto Moreiras: “Este es por lo tanto un populismo sin líderes (o sin líderes en función hegemónica), es decir, un populismo en el que la posición de líder—el notorio “significante vacío”—está ocupada por el gestor de la radicalidad democrática, y solo por él o ella en cada caso, a cualquier nivel administrativo (seguir llamando a ese “gestor de la radicalidad democrática” líder, o jefe, o caudillo, sería un capricho arbitrario).”. “La hipótesis Podemos”. https://infrapolitica.wordpress.com/2017/04/09/la-hipotesis-podemos-borrador-por-alberto-moreiras/

Una nota a la pregunta a José Luis Villacañas. Por Gerardo Muñoz.

El intercambio con Villacañas y Moreiras ha sido iluminador, en parte, porque como decía un amigo por comunicación privada estas notas ayudan a delinear posiciones. Yo no quiero disputar ninguna parte de los argumentos, y lo que sigue es tan solo un apunte mental hecho público sobre lo que me parece que es una posición de desacuerdo y que pudiera ser tema de futuros debates. Aunque el punto del desacuerdo tampoco es tan nuevo.

Me refiero, desde luego, a lo que Villacañas llama la necesidad de legitimidad en su réplica a Moreiras. En específico, J.L.V escribe: “El republicanismo no necesita de la hegemonía, pero si necesita de la legitimidad. Y el problema es que la legitimidad no es una afirmación de archē” [1]. Pero, ¿por qué no puede la legitimidad ser jamás una afirmación arcaica? Es sabido que Weber en Economía y Sociedad habla del necesario arcano de la dominación, pero solo como trazo transitorio hacia una función moderna de los tres tipos de apelación a la legitimación racional (la tipología tripartita: racionalización, autoridad personal, y carisma) [2].

Pero lo que Villacañas entiende por legitimidad tiene sus propios tintes, y ya ha quedado muy bien esbozado en su importante ensayo “Poshegemonía de Gramsci a Weber”. Allí, J.LV. pide el abandono de la hegemonía gramsciana en nombre de una noción de legitimidad en función de una institución visible [sic], capaz de renovación en cada instancia, y garante del pacto social [3]. Y es cierto que esto no tiene nada que ver con un principio legislativo supremo o metafísico, tal y como lo comenta Schürmann en el apartado sobre la legitimidad y la legalidad en la primera parte de Broken Hegemonies.

Ahora bien, en la medida en que la legitimidad no tiene arcano, habría que preguntarse si en el momento de la expansión del estado administrativo – que pienso que es consistente con lo que Moreiras llama la ruina del orden categorial moderno de lo político, o lo que Williams llama decontainment – no hace de la legitimidad algo defectuoso. Pero defectuoso ya no como ‘equilibrio’ de movilización e instalación propiamente político, sino defectuoso en el sentido de un vacío o abismo efectivo. De ser así: ¿cómo pensar aquí la legitimidad caída hacia la pura administración?

Si se apela a la “legitimidad” se apelaría solo al concepto. Por eso la cuestión medular es si la legitimidad tiene gancho compensatorio, o es todo lo contrario. En su librito sobre Benedicto XVI, Il mistero del male (2013), Agamben ha declarado que no existe estructura de gobierno legítima hoy en la tierra. Y quizás Villacañas diría que esta conclusión se debe a su prole schmittiana que desde el registro del mito deja intactas “muchas realidades históricas operando”. Y es verdad que tiene razón.

Y con esto concluyo: lo que si es importante derivar de esto es que si ya la legitimidad no es compensatoria para un momento democratizante, lo que prosigue a la hegemonía es la poshegemonía en la medida en que, en cuanto a su segundo registro infrapolítico, abandona ya la ratio última de la política como acceso de mundo y de vida. La biopolitica ha sido el último avatar de esta posición. Si el populismo contemporáneo – la mejor posibilidad populista, digamos Bernie Sanders, digamos ciertos grupos a escala estatal batallando contra los intentos revocatorios del Civil Rights Act en el sur estadounidense, el errejonismo – tiende hacia a la apelación a la legitimidad o a la poshegemonía es ya otro asunto. Pero yo no tengo dudas que esta es la verdadera bifurcación en nuestro momento para el pensamiento.

 

 

Notas.

  1. Ver en este mismo espacio, a José Luis Villacañas. “Réplicas”. https://infrapolitica.wordpress.com/2017/04/12/replicas-por-jose-luis-villacanas/
  1. Max Weber. Economy and Society. University of California Press, 1978. P.953-54.
  1. José Luis Villacañas. “Poshegemonía: De Gramsci a Weber”, en Poshegemonía: el final de un paradigma de la filosofía política en América Latina (Biblioteca Nueva, 2015). P.165-66.