liberal state

Name and Liberty. by Gerardo Muñoz

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

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

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

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

Karl Barth’s suum cuique. by Gerardo Muñoz

In his chapter on the radical theology of abundance and ethics of Karl Barth, Mårten Björk discloses a central concept to the reformist theologian: the suum cuique, a term that prima facie could be rendered in natural law definition of legal justice, inherited from Roman lawyer Ulpian, as “may all get their due”. In the thomist tradition the legal notion of epikeia promptly became equity as the moral supervision of law’s principle (ius) understood as the application of the fair and the objective good. The justification of the balancing of aequum became a regulatory mediation on the grounds of a fictive principle of nature as moral reasoning, which has been well documented by Stephen Humphreys [1]. What makes Barth’s drawing on the notion of suum cuique in his interwar pamphlet Church and State (originally entitled Justification and Law, 1938), on the contrary, is precisely that it is not reducible to equity, but rather as Björk explains it: “the limit to our life, a limit brought forth by death itself, is in the end the vast chams that posits the creature as create of God…and this has ethical and political consequences” [2]. This is telling, and my aim here is to supplement the discussion in “Abundance and Scarcity” by showing its radical asymmetry with the reasonableness of the natural law. Barth’s anti-activist Church (although not neutral in the wake of the total state of the 30s) and apathy towards morality, stands as a sui generis bearing.

First, in the moral natural law tradition of equity (epikeia) “giving each one their due” becomes a strict legal-authoritative command principle on the reasonableness of nature centered on the ontology of the person. It is quite the opposite for Barth who does not favor a constant moral adjudication, since the separation between Church and State presupposes a previous divine justification that belongs exclusively to the Church, but not to the state. In fact, law practiced on the condition of natural principles will undermine the authority of the liberal positivist state, which Barth defends vehemently, making the case for its coherence with the teachings of the New Testament: “The democratic conception of the state is justifiable expansion of the of the New Testament…Christians must not only endure the earthly state but they must will it as a just state, not as a “Pilate” state” [3]. It is not surprising, then, that Barth wrote this tract openly defending the authority of the modern positivist state, contrasting it to the anti-statist unjust pretarian judgement of the trial of Jesus. This makes sense given that the pretorian ius honorarium could be understood, at least in part, as belonging to the tradition of the moral balancing of equity between morality and norms (just as the two irreducible kingdoms) [4]. Barth’s defense of the positivist state is even contrasted to natural law, which for Barth is incommensurable with the word of God: “We cannot measure what law is [in the State] by any idea of natural law…” [5].

Accepting the primacy of the equity of a substantive bonum will not only serve to override the authority of the state, but also, and more importantly, to flatten out theology’s monopoly over divine justification. At this point Barth is quite explicitly in saying that this is what took place – and I think he is correct, specially if we take into account that the degenerate legality in Nazi Germany and Stalinist Russia was not an abuse of positivism, but a consequence of the open-ended common and natural law principles to the point of distortion – in the wake of fascism and Bolshevism in the interwar years of Europe. Barth writes with this in mind against artificial heavens on earth, as part of a hyperbolic “politicizing from above”:

“Fascism and Bolshevism alike will be dethroned and the true order of human affairs will arise. Not as heaven (not even a miniature heaven) on earth! No, this “true order” will be able to arise only upon this earth and within the present age, but this will take the place really and truly, already upon this earth, and this present age, in this world of sin and sinners…this is what the Church has to offer to the state…” [6]. 

The political domination of the total state amounted to a conflation between the lapsarian condition of man and the theology of eternal life. The passage or mediation between the two dimensions, which he also described as a “tailor made garment” was the suum cuique, understood as a limit to life and death beyond morality and biological reductions. Barth insisted on the principle of separation in face of every temptation of technico-rational closures. Thus, by externalizing divine justification to the sphere of theological eternity, Barth’s conception of “giving one’s due” was radically disambiguated from the Nazi motto “Jedem das Seine” (to each his own) in the concentration camp of Buchenwald in 1937, made possible by the opened force of common law adjudication against the state positivist authority (understood by Nazi legal scholars as “too Jewish”). This was the barbaric dereliction of duty of the state becoming what Barth called a “clerical state” [7]. Barth’s ethical limit on finite and eternal life, so well reconstructed in Björk’s brilliant monograph, can only be a witness to a ‘world passeth away’ to which no priestly jurists have the last word unless catastrophic consequences are expected. The ethical response to the lapsarian condition was a radical drift from the dangers of natural absolute rationalism that was directly implicated in the arousal of immanent powers and the reduction of the population as mere administration of doctrine of last things through consciousness and not grace. The suum cuique introduced a radical exteriority in which all men became “strangers” (to the Church, national identity, the community, to the social) whose proper involvement pertained to the eternal mystery of life and death.

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Notes 

1. Stephen Humphreys. “Equity before ‘Equity’”, Modern Law Review, 2022, 1-37.

2. Mårten Björk. The politics of immortality in Rosenzweig, Barth, and Goldberg: Theology and Resistance Between 1914-1945 (Bloomsbury, 2022), 115.

3. Karl Barth. “Church and State”, in Community, State, and Church (Anchor Books, 1960), 146.

4. Gerardo Muñoz. “El pretor romano y el ius honorarium”, Infrapolitical Reflections, 2022: https://infrapoliticalreflections.org/2022/04/24/el-pretor-romano-y-el-ius-honorarium-por-gerardo-munoz/ 

5. Ibid., 147.

6. Ibid., 148.

7. Ibid., 132.