modern state

The ascent of the administrator. by Gerardo Muñoz

Today the political surface only seems to obfuscate the analyses of the real forces that move at different pace underneath the crust. When recently Emmanuel Macron referred to the popular unrest protest as “la foule…pas de légitimité face au peuple qui s’exprime souverain a traversé ses élus”, he was not only speaking as the sovereign, but as something more specific; that is, as an administrator. If the old sovereign stood metonymically for the totality of the whole constituent body, Macron’s political rhetoric cleverly distinguishes between the “groups” or “masses” (this is also the same term that Sigmund Freud deployed in his contestation to Le Bon’s theory of the multitudes in 1921), and the institutional mediation of the “People”. What is interesting, in any case, is the cleavage between the two figures becoming well delimited: one being on the side of political legitimacy, the other on its inverse pole of apolitical illegitimacy. The logistics of administration (or what I have called in recent research the administrative nexus) serves to conjoint this specific separation. By the same token, we should not let pass the occasion to recall that if Macron is a hyperbolic political commander of the West, it is precisely because he stands as the executive force at the helm of the administrative legitimacy (as a political elite, he was shaped at the École nationale d’administration).

What do we mean by administrator in this specific historical conjuncture? It goes without saying that modern French public law has a long and important history of droit administratif, which in France is structured around a dual jurisdictional system enshrined by an extensive legal case law and its juridical principles. The French system of droit administratif, however, is not to be understood as an amalgamation a posteriori of classical separation of powers, but rather a concrete institutional design within public powers. This was an institutionalist design that profoundly impacted Schmitt’s thought on the concrete order in the first decades of the twentieth century. The bureaucratic institutionalization was an integral organizational mechanism of legislative congressional practice. The rise of the administrative state differs from droit administratif insofar as it represents liquidation, as well as a thorough transformation of the modern system from within. In this sense, the rise of the administrative state is an excedent to bureaucratic legitimation – and Schmitt was right to characterize as the ‘motorization of law’, a force that he saw unleashing already in the overall tendency of European public law of the 1930s, although only taken to its fulfillment in the United States (something that Schmitt did not foresee) [1]. And if we were to sketch out a minimal phenomenological reduction of administrative law today we could state that it consists of the overflow of executive power through the exercise of the principle of delegation and the extension of intra-agency policy-police enforcement. What early on administrative law professors termed the revolution of an ‘administrative process’ has now come to full extension by subsuming the tripartite structure of the separation of powers to the administrative oversight of the space of social reproduction.

That Macron can only frame his political analysis in terms of “la foule” entails that he is already occupying (at least tendentially; and I can not speak myself for the concrete institutional transformation of the executive office in the French political system) and envisioning role of executive branch as a presidential administration. In an academic legal article that will exert an enduring influence in American public law, “Presidential Administration” (Harvard Law Review, 2001), Judge Elena Kagan stated that the era of executive administration had arrived; which rather than the supremacy of an institutional branch over others, it aspired to defend the orderly equilibrium to the total functioning administration of the whole system [2]. It is important to note that today’s ascent of the administrative state across the Western Anglo-Saxon public law is not rooted in maximization of bureaucratic rationalization nor in the authority of the charismatic office of a Reichspräsident as in the Weimar Republic (I have previously shown its difference), but rather in the production of delegation and deference of political authority that flows from executive power, while remaining bounded within a logistics of balancing and equity (in fact, the notion of equity has become the administrative unity of enforcing a positive production of exceptionality, but this is a discussion for another occasion). In other words – and as paradoxically as this may sound – the Macronite experiment with executive action based on Article 49 of the French Constitution, bypassing Congress, is a thoroughly habitual and normalized practice in the American legal system, which have led some jurists to claim a last farewell to the legislative body of the State – the same branch that Woodrow Wilson would describe as the ‘body of the nation’ in his seminal Congressional Government (1885).

All things considered, whenever Macron’s technocratic politics are described there is an amnesia to the concrete fact that Americanism is not just economic planning or the drive towards indexes of productivity and financial credit standards; it is also a specific governmental stylization. And this stylization is the administrative government, whose stronghold on public law should not be taken for granted. This means at face value that the empire of judges and congressmen (the “elected representatives” upheld by the Macron internal doctrine) is ultimately marginalized in the new center stage government occupied by an elite cadre of administrators and regulators in charge of grand policydesigns in virtues of expertise, rationality, adjudication, and compartmentalized decision-making process – that Kagan recommended should orient “a coherent policy with distance from politics and public opinion” [3].

Contrary to Macron’s republicanist rhetorics, the true and concrete ethos of the administrator is no longer at the level of classical modern political representation (elections, legislative body, judicial restraintment), but rather on the production of statute rulemaking balancing (equity) that unifies the aggregation of private preferences and calculations to the specific determinations of broad and discretionary public interests. At the level of the analytics of ideal types, this transformation sediments the passage from the political elite to the executive administrator of new normative indirect powers. The ‘americanization’ of Macron’s policymaking universe is centered on the exclusion of political governance or judgement in favor of abstract administrative principles (the so-called ecological transition tied to metropolitan or specific territorial energy hubs, to cite one example) and optimal regulatory determinations. What emerges at the threshold of modern republican politics is, then, the rise of a fragmented ‘la foule’ and the activation of police-powers (legality) through the procedures of statute enactment oriented at the unruly state of contemporary civil society.

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Notes 

1. Carl Schmitt. “The Plight of European Jurisprudence”, Telos, March, 1990, 35-70.

2. Elegan Kagan. “Presidential Administration”, Harvard Law Review, 114:2245, 2001, 2385.

3. Ibid., 2262.

Barbarism and Religion: Rome and the civil concept. Introduction for a seminar. by Gerardo Muñoz

Thomas Hobbes famously wrote towards the end of Leviathan that “Papacy is no other than the Ghost of the deceased Roman Empire, sitting crowned upon the grave thereof” (Hobbes 1985). The long shadow casted by the Roman political tradition, however, is still peripheral to the current debates on secularization and political theology, and even in the most sophisticated analysis of the emergence of the fragmented public powers of the twelve century (Bisson 2015). In this seminar (one in a series of three) we will study the relation between Rome and the emergence of political modernity by attending to the multi-volume series Barbarism and Religion (1999-2015) authored by the Cambridge School historian J.G.A. Pocock, who has arguably undertaken the most serious attempt to provide an answer (however incomplete) regarding the passage between Rome and our modern political foundations.

Through a mannerist and highly idiosyncratic reconstruction of Edward Gibbon’s magnum opus, Pocock draws a large canvas of the Roman metapolitics, shedding light on the ongoing process of economic constitution and mutation. In this first seminar we will attend to the first two volumes of the series attending to the “civil” concept as an operative mediation of public order. Our wager is that the civil is at the crossroads in the ongoing crisis of authority and global civil war. Indeed, we tend to forget that the civil is operative in the notion of “civil war” used to describe the exhaustion of institutional and political forms.

Secondly, although we will consider the historiographical and conceptual constructions in Barbarism and Religion, the main focus of the seminar is to furnish an original understanding of the civil dimension from Rome to the modern legitimization of the political. In this sense we ask: to what extent does the concept of the civil discloses a specific genealogy from the decline of Rome and into the modern state? If so, how can one understand the polarity between barbarism and imperium (politics) as the two vectors of modern imagination about public order and the rule of law? And more ambitiously: can one mobilize (departing from Pocock’s historiographical project) the concept of the civil as a historical a priori – as the historical excess to every concept (Cooper 2022) – situated in the intersections of public law, modern commerce, and the rise of the state? What accounts for the event of the civil?

Getting ahead of ourselves, Pocock writes in the last volume of his series: “…so long powerful at the meeting point of imperium and barbaricum, who after defeat became the semi-autonomous subjects of the new kingdom. This is a moment in world history” (Pocock 2015). All things considered, this seminar looks to understand “this moment” in a present in which the civil has resurfaced as the principle of a total encompassing barbarism in the wake of the flaring up of Western civilization. If after concluding the six volume series we are capable of saying something to this end, we would have found ourselves lucky.

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

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

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

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

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

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

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

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Notes 

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

2. Ibid., 133.

3. Ibid., 28.

4. Ibid., 174.

5. Ibid., 176.

6. Ibid., 26. 

7. Ibid., 79. 

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

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

10. Ibid., 434.

11. Ibid., 424.

12. Ibid., 421.

Operative determinations in Carl Schmitt’s concept of the enemy. by Gerardo Muñoz

If the modern state presupposes the concept of the political, then the notion of the political presupposes the concept of the enemy. And if in Political Theology (1922) Schmitt claimed that the modern ethos was predicated as a struggle against the political, a decade later The concept of the political makes the case as to why the political could have only emerged in the wake of the crisis of the modern liberal state aggravated by the rise of the total state and the politization of the economy. All things considered, what Schmitt claims about “politics as destiny” (quoting Walter Rathenau, although the original is handed to us by Hegel quoting the Napoleon- Goethe conversation) has been misunderstood: “It could be more exact to say that politics continues to remain the destiny, but what has occurred is that economics has become political and thereby destiny” [1]. The total politization of economic relations – social contract as structured in value transaction and production – does not imply that Schmitt thinks that politics is destiny. If the ‘concept of the political’ is suppressed and subsumed by economics and techno-administration, then this implies that every sphere of human activity becomes political including one’s destiny. But no destiny can be fully administered or it ceases to be one.


The suppression- expansion of the political allows for the destruction of the enemy, who turns a mere protuberance in a pacified world order. In other words, for Schmitt (unlike what is usually said on his behalf) proposes a concept of the political to achieve a separation from politics that doesn’t amount to ‘critique of politics’ (allegedly what Liberal epoch offers), in the same way that the figure of the enemy is not to be understood normatively as the telos of political activity, but rather an operation that indicates degrees of association and dissociation given that the modern theory of the state is inseparable from plural conflict. In fact, as Schmitt states, the concept of the political as operatively defined by the enemy does not turn its back to pluralism, but rather wants to produce (“yield other consequences” is the language used) pluralism without suppressing the political unit itself [2]. And to yield “space of recognition” for friend-enemy divide does not entail war is neither the end nor the continuation of politics, as it has been understood, but rather an optimal effect whenever there is the existence of political units [3]. In this sense, the notion of enemy as presupposed in the concept of the political is not a substantive and personalist notion, but a particular operation that tries to contain domination while providing breathing space for a non-suppressive practice of politics (a counterpoint to fleeing from catastrophic techno-politics, suggested by Erich Unger’s Politics and Metaphysics during the same time).

One could outline at least four operative determinations of the enemy, which support the thesis of Schmitt’s effort to amend the conditions of the liberal state not negating them: a) the enemy is always a public enemy (hostis) and not a private one (enemicus). Here Schmitt retains the modern juristic conception of positive law. As Schmitt recalls in Ex captitvate salus, for the theologians the enemy is something to destroy, but he thinks as a jurist and not a theologian [4]. b) the hostis is not reducible to a person, but rather to a political unit, although the political could amount to an existential condition. If the “enemy is one’s own question as figure (Gestalt)”, as Schmitt quotes from Däubler, this also means that enemy is a principle of differentiation and mediation rather than a substantive essence, ideological or otherwise [5]. This is why it could be a mistake to confuse the gestalt formation with the unity and relative homogeneity of society required for the modern state.

c) If any political thinking is a thinking oriented towards optimization of the extreme case (this presupposes a negative anthropology), then it follows that the enemy is also the “enemy” in a concrete conflict. And it is clear why Schmitt taught that the suppression of war in the wake of the Kellogg Pact 1928 meant, as least tendentially, that enemies cease to be taken as a unit of differentiation transforming politics into a world police as the dominant practice of managing partners that eradicate the hostis. d) Finally, the notion of the enemy allows the state to recognize concrete threats and dispose of capabilities to respond to a crisis (here the polarity between decision and discussion comes to light), but also without discarding the basic principles of the rule of law such as nulla poena sine lege. In this final determination, the concept of the political is directed at displacing the separation of state and civil society, which according to Schmitt was incapable to offering a concrete response to the rise of neutralization posed by totalization of the “society” superseding the authority of the state (this is a variant of the economic primacy). The notion of the enemy is thus understood best as an optimal operativity that seeks to relieve politics from this polarity (totalization and repression) laying bare at the origin of the modern state.

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Notes 

1. Carl Schmitt. The Concept of the Political (University of Chicago Press, 1996), 78.

2. Ibid., 45

3. Ibid., 34.

4. Carl Schmitt. Ex Captivate Salus (Polity, 2017), 135.

5. Ibid., 136.

6. Carl Schmitt. “Premessa all’edizione italiana”, Le categorie del politico (Il Mulino, 1972), 39.