positive law – Infrapolitical Reflections

If the modern age is characterized by the triumphant claim to legitimacy thanks to some major forgetting, then there is much to learn from Chaim Bialik’s 1917 enduring essay on Jewish Law, Halakhah e Aggadah: Sulla Legge ebraica (Quodlibet, 2025), which has just been republished in a very timely fashion in Italian. Bialik in 1917 means being in good company of many other names: Franz Kafka and Gustav Landauer, Walter Benjamin and Martin Buber, Ahad Ha’am and Carlo Michelstaedter, and many other names that surely have been eroded by the dust of historical time. This very erosion is at the center of Bialik’s essay that in the thunderstorm of the First Great War, the imperial consolidation of political Zionism, and the disintegration of the Austro-Hungarian Empire where many Jewish marranos dwelled, decides to take a step back from the modern acceleration and ask about the two poles of Ancient Judaic Law: the Haggadah and Halakhah. Immediately taking distance from the modern scheme of positive law and natural law, norms and principles, Bialik reminds us that Haggadah and Halakhah are two faces of the divine dispensation of Judaic law, in which temporal continuity and the statute, the heart and the shelter appear to communicate each and every time through the life of a people (5).

As someone writing in the waning of Halakhah due to modern secularism, Bialik’s essay is first and foremost invested in preserving the Halakhah as a living tradition, “an art of concrete life” that allows for the form of life of human beings in the world (7). It is from Bialik’s essay where Walter Benjamin in the 1934 Kafka essay would later incorporate the notion that Judaic law as void of content, open to the pure means of its own transmissibility. But perhaps in Benjamin’s materialist rendition Bialik’s central notion of the Hallakah is also blurred, since for the Jewish theologian what is central is the spiritual formation of the soul, a sort of subterranean facticity that is passed throughout the ages, just like that Chrisitan masons built major Medieval cathedrals across the centuries (11) (the metaphor is indeed his). The Halakhah insofar as it inspires the soul is an endless formation, although it is also “the imagination of becoming a living soul, with a body and a sense of beauty” (13). The Halakhah is a region of de-autonomized sublime that Bialik compares to a crossgenerational Shabbat in which a people are observant to a way of living in its own becoming (14). In other words, the Halakhah is not a moral principle for personal virtue as arete as in the ancient metaphysical ethics; it is the absorption of the life of the community into the “voice of the heart” that can regenerate forms of sensible wisdom (16). It is wisdom without a master or priest that teaches the law, since it is not a knowledge that must be interrupted through mental capacities. According to Bialik’s theory, once the Jewish people are thrown into a temporality of dilation, what appears to shine in a powerful light is the cultivation of a life against the abuse and corruption of historical obsolescence. As Bialik writes in one of the most striking passages of his essay:

“Che questi «vasi di vita» siano rimasti da parte per qualche tempo non significa che siano inutili. È una grande legge: ogni forma di vita durante la sua creazione, finché dura questo periodo, rappresenta a sua volta un contenuto nello spirito del suo creatore. Appena la sua creazione è compiuta, essa si separa, si confonde con le altre, e ormai priva di essenza propria decade a strumento: chiunque vi trova quel che vi mette ogni volta che la usa. Essa deve tutto all’uomo e allo spirito dell’uomo a cui tocca in sorte come un bene abbandonato. Se egli vi mette oro, troverà oro; se polvere, polvere. Se non sa cosa mettervi, può anche lasciare che questo strumento arrugginisca. Ma quell’uomo non deve dire: lo strumento è inservibile, da buttare; deve dire invece: io sono povero!” (19).

This means that for Bialik the theological conception of “creation” does not stand for a mythical origin unconcealed by some authority; rather, it is a “vase of life” that allows life to be attuned to the the spirit of the creator, and for the creator to be rendered unfinished because the texture of the form of life is always to be written. At bottom, this modal structure of theological interdependency is at the heart of Bialik’s underappreciated theory of the letter and spirit of law that still resonates in our days. It is not that there is unwritten tradition and then it becomes a written norm to adjudicate the force of law (as in the current American jurisprudential debates about the “History and Tradition” test); on the contrary, Bialik’s legal contribution, well beyond the confines of Ancient Judaic Law, is that there is an abyss in the soul in every enigmatic life because the legal force cannot yet (and cannot for a long time) adjudicate a resolute execution of judgment (23). Counterintuitively, we can thus say that to really “live in the Law” cannot be expressively taken to be to defend court orders and police powers, but rather to allow life to live concretely as enigmatic life that is deprived of temporary ad hoc fictions suited to social domination. That is to say, to live according to the law means coherently with the Hakkhalah entails to an awareness that the law remains fully unknown, in this way incapable of becoming a part of social and penal organization that in our days it has thoroughly transformed the legal systems of the West (37).

This is why Bialik also includes a strong warning towards the end of Halakkah e Aggadah: the rise of substantive qualifications of Judaic culture (Jewish art, education, work, nationalism, theology) bending towards identitarian abstractions amount to what he called “ethereal love” (38). This ethereal love not only dissolves into the solution of modern humanism, but betrays the enigmatic form of Jewish life in the time of dilated waiting. A time of dilation (Aufschub) that does not mean that there is nothing to do – consummated boredom and alienated experience – it is rather the opening to a whole field of possibilities and relations, of worlds and the attunement of the imagination in its exposure. This non-closure of the theological experience provided by the fine attunement of the heart cannot be properly called political; which is why Bialik understood the land of Palestine as a vitam nomoi and not one of nationalist settlement validated by the institutional authority of the modern state.

As Andrea Cavalletti records in his illuminating Postface Bialik telling Hannah Arendt: “La mia convinzione politica, se ve n’è una, è anarchica” (64). Like in Oskar Goldberg’s theology, what is at stake in Bialik is an anarchic Hebraism that allows the presence of God in the world to deter the emergence of poisonous deifications (the individual and the state). Far away instrumentally infused pseudo-messianic overtones of an “elected People” for historical assertion and depredation, Bialik understood that only in the free relation between Halakhah and Haggadah, could the gordian knot of life and law be considered if we are to avoid the slippage into the seductions of the ethereal forces.

Anna Grzymala-Busse’s recent study Sacred Foundations: The Religious and Medieval Roots of the Modern State (Princeton U Press, 2023) makes a compelling historical and data analysis grounded case for the emergence of the modern state through the process of the Church’s autonomization in its ongoing disputes with the European monarchs across the centuries. This process of the secularization of ecclesiastical forms (conciliarism, legal administration, the uniformity of procedures, rules for governing institutions, the emergence of educational training and mechanisms for political representation and fiscal control, etc), however, is silent about two defining features of the modern secular state. And I do not think it is an exaggeration to say that these two elements bring forth the way in which political authority was established after the victory of modern European Enlightenment. Busse’s book, if anything, has the felicity of putting in perspective, even if only in negative, the two pieces of the puzzle: a) coercion as guarantee by a legal process (not just the monopoly of force); b) and the inter-institutional coordination that we tend to associate with a ‘principle of an internal rule of recognition’ between different spheres of bureaucratic rationality. Busse admits for (a) that “….the authority of the people over the whole Church was not statelike. It depends on moral authority and influence, not on coercive control. Both kings and popes cajoled, convinced, and threatened rather than demanded or extracted force” (Busse, 78). But ruling on morality and influence are two weak presuppositions to guarantee systemic, homogeneous and uniform process required by institutional authority.

In other words, the Church was able to construct forms of civil mediations, although it lacked the power of efficacy; that is, a coherent set of reasons for action that would define a strong concept of sovereign authority as service (to put it in Raz’s well-known formulation). The classical apothegm by which ‘kings rule rule but do not govern’ (Rex regnat sed non gubernat) now is protracted by the exercise of an efficacious rule, which means laying out a combination of forms and a well-ordered power over coercive forms. In fact, this is one feature that will define the legitimacy of the Enlightenment according to historian Franco Venturi; the discovery of punishment understood within the scheme of a trade off between the “necessity of the right to punish when man was not able to re-establish communism” [1]. Hence, the genesis of modern legitimation is not exclusively “a given” vis-a-vis the structure of separation of powers and the ultimate source of the plenitudo potestatis; rather, it requires a second-step rule, as it were, to convalidate the specificity of institutional authority with ample concrete efficacy of police powers in charge of compliance and punishment. The reach and exercise of public police powers and the systematic ordering of penal codes through a criminal procedure and its guarantees (reasonable doubt, fair trial and due process, no crime published without a previous enacted law, nullum crimen sine lege) is what renders effective and “energic” the principle of authority.

Now, broadly speaking, when it comes to (b) Busse admits that (and this is in spite of its institutional schemes) laying down justice “…the church relied on secular enforcement, for example when it came to religious orthodoxy. […] The carrying out of sentences against heretics and apostates lay in secular hands – those found guilty were handed over the temporal authorities so as to not sully the clergy. Legal coevolution and influence, the struggles between popes and monarchs, and the diffusion of both canon law and personnel into the juridical systems were critical to the rise of constitutionalism and the rule of law in Europe” (Busse, 132-133). This asymmetry between two systems of legal jurisdiction confirm the inexistence of a strong internal rule of recognition that for H.L.A. Hart defines any robust modern legal system of public law. The internal rule of recognition, one must remember, is not a set of principles or norms for social action, but rather the internal mediation between a legislative authority and its internal obedience within a concrete application thereof. The internal rule of recognition binds a central authority with its specific formal enforcement in institutional union of primary rules and secondary rules to avoid the pathology of uncertainty. This is thoroughly absent from the free-floating institutional forms of the medieval church whose principal construction of primary rules was divorced from the objective and rational procedures of its internal coherence (the rule of recognition) that would ground, in time and place, the otherwise abstract primary norm and the pressure of contested social conflict.

But going straight to the crux of the matter, it follows that medieval templates as superbly redrawn in Busse’s studies lack the two fundamental determinations that ground the modern concept of law: law as the necessarily monopoly over coercion (the Austin thesis), and the concept of law as the construction of an internal rule of recognition to unite primary and secondary rules (the Hart thesis). But insofar as all major modern political concepts and mediations are secularized forms of religious and medieval forms – something we can say that Busse’s scholarship also confirms – we can then say that modern legitimacy will consist in the congruence of these two determinations to organize the mediations between civil society and state. Already in his early The value of the state and the significance of the individual (1914), Carl Schmitt will note of this formal transplant: “…the Catholic doctrine of the Pope as the infallible interpreter of the natural moral law and of the content of revelation, who receives the competence to declare state statutes that stand in contradiction with the moral law or ius divino-naturale to be non-obligatory in conscience. The exercise of his potestas indirecta which is regarded as an act of jurisdiction, and which is held, by many canonists, to be determinative of a statute’s validity in state law – contains real vis coactiva, even where the expression potestas directiva is employed in place of potestas indirecta (Suárez, de fide cath, 3.22.1)” [2].

For Schmitt, then, the process of rationalization between ecclesiastical form and the modern legal norms of the state is very much straightforward. This is what constitutes the very texture of secular modernity. But as we know, for Schmitt the secularization of forms was not enough – it must be said that he himself did not negate in his theory of adjudication of his constitutional thought – which is why the construction parameters of his ‘political theology’ proposes supplemental safeguards to isolate law and power, extending the power of secularization into the decision of the potentia dei asoluta (at times this was contained in the theological figure of the Katechon) [3]. But as Carlo Galli has noted, Schmitt’s political theology is far from a “political christology” or a substantive theological politics grounded in natural law; rather it is a resolute affirmation to defend any concrete order from the potential fallouts of the secularized cornerstones of rational neutralization (potentia directiva and potestas coactivva) of state authority [4]. Neither mechanic state forms nor a higher source of morality (natural law) would define the modern law; rather the autonomy of the political in the existential situation could provide the sufficient energy to avoid the self-defeating circularity of ius revolutionis (this is what most of the times is obliterated from the so called question of “decisionism”)[5]. If Busse is correct in making the case that all modern institutions have sacred medieval foundations; Schmitt’s concurrence in the wake of modern secularization will be to define the energy of the political as the defining element that must stand as the threshold of formal transplantations to have a chance within nihilism and against nihilism. It is both things. In other words, formlessness is the constitutive dimension of political forms; an element that defines, in my view at least, the strongest practical element of what it is to inherit a Christian political foundation. The process of secularization is thus infinite and groundless, ultimately without a moral foundation and universal design. Among its many achievements, a book like Sacred Foundations: The Religious and Medieval Roots of the Modern State (Princeton U Press, 2023) has the ability to refine what political theology is, what it meant, and what to make of its endurance and possible iterations in our present.

Notas

1. Franco Venturi. Utopia and Reform in the Enlightenment (Cambridge University Press, 1971), 116.

2. Carl Schmitt. The value of the state and the significance of the individual, in Carl Schmitt’s Early Legal-Theoretical Writings (Cambridge University Press, 2022), eds. Zeitlin & Vinx, 215.

3. See my “Schmitt y Hart: los puntos fijos del concepto de derecho”, 2022: https://infrapoliticalreflections.org/2022/11/07/schmitt-y-hart-los-puntos-fijos-del-concepto-de-derecho-por-gerardo-munoz/

4. Carlo Galli. Genealogía de la política : Carl Schmitt y la crisis del pensamiento político moderno (Unipe, 2019), 301.

5. Jorge Dotti. “Sobre el decisionismo”, en Lo cóncavo y lo convexo (Guillermo Escolar Editor, 2022), 391.