The nursery social state. On Pablo de Lora’s Los derechos en broma (2023). by Gerardo Muñoz

The crisis of the liberal legislative state is almost as old as the very project of the modern liberal state itself. And if we are to believe Carl Schmitt, the rise of the supreme values of the French revolution and ‘human rights’ (with its corollary of universal recognition within its normative system) also meant walking the fine line from the political theology of generative reform to the nihilism of ius revolutionis commanded by new discharges of individual will, political and technical movements, and immanent forces bringing the collapse of the separation between state and civil society. We are still living under its protracted shadow, albeit with a different intensity and intent. In his new book Los derechos en broma: la moralización de la política en las democracias liberales (Deusto, 2023), Pablo De Lora co-shares this point of departure, while daring to suggest a new sequence after the collapse of modern political form and legal order: we are currently living under a particular epochal transformation that is anti-legalist (sic) in nature – precisely because of its surplus of legal motorization – that erects a “nursery state” for the totality of the political community’s reasons and justification for action (De Lora 23).

Although De Lora case studies shown are almost entirely derived from the Spanish and Latin American contemporary social contexts, I do think that his sharp diagnosis could be extended to the epoch itself without blurring the important nuances. This is an epoch of a reigning “emphatic constitutionalism” (Laporta) or the total Constitution (Loughlin), at the same time that it no longer takes too much effort to imagine a political community devoid of a legislative body, as one eminent constitutional scholar has said repeatedly [1]. We are already here. In other words, whether by excess or deficit, the overall purpose of moral driven legislation announces the internal transformation of modern politics as we know it, extending itself to a civilizational regression from the ideals and norms of the Enlightenment rooted in the fiction of the citizen, the binding of the social contract, and the invention of the principle of sovereign authority.

De Lora does not quite says it in this way, but I think I am not diverting too much of his cartography when extracting some of the central consequences of these internal moral substitutions that are palpable everywhere across the West: ecological legislation that increases social conductivity and expansion of natural destruction; ‘feminist’ anti-sexual aggression that leads to lowering of sentences for convicted sexual predators; the inflationary instrumental use of “Human Rights” for persons and things, but only defined narrowly by those that, under the thick haze of institutional hegemony, can deprive their political adversaries and enemies of the most basic legal guarantees of due process transforming them into non-persons. These ‘moral substitutions’ is part of the “ironic” and “futile” consequence of the sacralization of morality whose end is the management of the “social model” at all costs. According to Pablo De Lora, within the limits of confronting a social dilemma such as disability, the specificity of the “case” is turned on its head; what matters is the overall structural design of the social order and its infinite adaptive changes (De Lora 71-72).

This mutation generates all sorts of unintended consequences when the rhetoric of “social benefit” takes the lead. As De Lora writes: “No hay apoyo anticipado a la discapacidad mental sin reconocimiento de que el discapacitado mental no puede ejercer su autonomía en el futuro. Dicho de otro modo, la institución de las voluntades anticipada de la lógica desideratum de modelo “médico” de la discapacidad mental que se rehuye en beneficio del modelo social” (De Lora 85). And in spite of normative incoherence within an institutional system, the deflection to the “social model” requires ever-expanding commands, rules, principles, and hyper-amendments to guide the adverse proliferation of reasons for action within the social state (in the United States this is soften by the police powers of inter-agency statutes of the administrative state through cost&benefit balancing of discretionary principles under the supervision of the executive branch). This transformation entails the collapse of the internal mediation between the validity of norms and its foundation in social facts as in the classical construction. Thus, the expansion of value-driven legislation that also requires of specific adjudicative constitutional theories, such as legal interpretation and the theory of balancing of principles advocated by Robert Alexy, the sponsors of social neo-constitutionalism, but also the embedded dialogic ideological positions of constitutional scholars such as Roberto Gargarella (or in the United States context, the work of Mark Tushnet and the so-called anti-originalist ‘living constitutionalists’).

All things considered, the fundamental problem for De Lora is that this specific transformation enacts what he calls a “Estado parvulario” or ‘nursery state’ that he defines as: “El que denominado “Estado parvulario” da pábulo a que el poder público, en sus diversos instancias y encarnaciones, escamotee las realidades y consecuencias que conllevan algunas discapacidad per oa que lo haga de manera internamente inconsistente: tratando a los menores como adultos, pero sólo simbólicamente, y, en cambio, de manera efectiva, a todos los ciudada como menores, congénitamente desvalidos, incapaces de encarar la realidad” (De Lora 87). In the framework of the nursery state within its specific moral legislative apparatus, children become adults and the mature civil society regresses to an infantile stage. And like in a nursery setting, the democratic virtues pave the way for new dramatic effects where the function of rhetorical annunciation – so central for the any credentials of moral hegemony – forecloses the void between morality and politics in the wake of the unification that the social model requires to begin with (De Lora 89).

This slippery slope can only lead straight to a sacralization of the political system that runs co-extensively with the infinite expansion of social rights; which, in turn, leads to an ever increasing conflict over the assumptions regarding its social facts (De Lora 151). In this narrow form, De Lora is audacious when citing Martin Loughlin’s recent indictment from his Against Constitutionalism (2022): “En la era de la Constitución total, el gobierno bajo el imperio de la ley ya no significa el gobierno sujeto a reglas formales independientemente pulgadas. Significa gobierno de acuerdo con principios abstractos de legalidad que adquieren significado sólo cuando son insuflados con valores…” (De Lora 188). And we know perhaps too well that values cannot be reasoned, but only weighted; values are commanded and taxed on the permanent devalorization of other values. This is why the rise of the value fabric of constitutionalism coincides with the ‘weighting’ proportionality of principles of law’s ideal social efficacy, to paraphrase Robert Alexy’s influential position as claim for “anti positivist legal justice” [2]. The nursery social state cannot be corrected merely from the position of the legislator; it can also be tracked as a triumph of moral jurisprudential theories of law that seek to overcome (and provide answers) to the overall crisis of institutional authority that characterized the so-called ordered liberty of the moderns.

Is there anything to be done beyond a description? It is quite clear that Pablo De Lora’s ambition is not so much the proposition of a new political or legal philosophy as much as the sketch of the current epochal predicament in its current practice. This is already enough to welcome a robust analytical discussion of our predicament in Los derechos en broma (2023). However, there is a cobweb of affinities in De Lora’s own position towards the end of the book that, even if not fully developed, must be registered as a mode of conclusion. First, there is an affinity with John Hart Ely’s deferential conception of judicial power that aims at overseeing the procedural mechanism for the democratic deliberation and legislation over a hot-button issues. In this vein, De Lora shares Akhil Amar’s position regarding the overturning of Roe in the Dobbs’ decision; a conception that fully embodies judicial deference to diverse legislative majorities [3]. Secondly, De Lora favors a judicial minimalism associated with the doctrinal theory sponsored by James Bradley Thayer over the practice of judicial review of the Court (De Lora 233). And last, but not least, De Lora sees transformative potential in John Rawls’ assertion in his late Political Liberalism (1993) that the use of public reason is a comprehensive doctrine to deal with our fundamental disagreements and contentions over shared political values (De Lora 241).

I am not sure how deep or for how long does De Lora wants to go with Rawls; however, it is important to remember – and specially given the treatment of the ‘social model’ in the morality presented in Los derechos en broma (2023) – that insofar as social paternalism is concerned, Rawls’ late liberal political philosophy at the heart of the crisis of the secular liberal state amounts to a political conception that, as Eric Nelson has brilliantly shown, abandons the commitment of individual non-cooperation or refusal to cooperate with unjust moral legislative burdens, and thus making everyone stuck in the same ship [4]. This ship is the management and balancing of the totalization of the values being trafficked in the Social as ‘egalitarian’, although they are fully endowed as a seterological scheme of “election” (and who is elected) balanced by secondary compensations.

On a larger canvas, if the current political structure is defined as a nursery state of social rights, then this means that appealing to ideal positions of justified reasons, “diaphanous” deliberation, and well crafted citizen arguments belong to the age of maturity of the Enlightenment, but not to the stage of social infantile disorder. And demanding political qualifications to the contemporary citizen today is not only naif, but at odds with what what institutional thinking requires. In other words, the concrete transformation of the post-liberal state is one of permanent optimization of conflict, which is why John Gray has lucidly defined the (contemporary) ‘new Leviathans’ are “engineers of the soul” with broad and sweeping capacities to govern over every inch of the social space [5]. In the wake of these institutional mutations, the call endorse a “moral critique” might be taken as a post-enlightened lullaby that among the blasting and striding cries of infants of the nursery will most likely just pass unheard.

Notas

1. Adrian Vermuele. “Imagine there is no Congress”, Washington Post, 2016: https://www.washingtonpost.com/news/in-theory/wp/2016/01/11/imagine-theres-no-congress/

2. Robert Alexy. “The Rationality of Balancing”, in Law’s Ideal Dimension (Oxford U Press, 2021), 122.

3. Akhil Reed Amar. “The end of Roe v. Wade”, The Wall Street Journal, 2022: https://www.wsj.com/articles/the-end-of-roe-v-wade-11652453609

4. Eric Nelson. The Theology of Liberalism: Political Philosophy and the Justice of God (Harvard U Press, 2019), 164.

5. John Gray. The New Leviathans: Thoughts After Liberalism (Farrar, Straus, and Giroux, 2023), 5.

administrative law Chile civil society constitutionalism economic theology gnosticism institutions Martin Loughlin painting political form Poussin Rodrigo Karmy social rights soul subsidiarity

Constitutionalism and sense. Text for “Legal Crisis in Chile” Session, Red May Forum, 2023. by Gerardo Muñoz

It has been said repeatedly – in the best hyperbolic spirit, no doubt – that Chile always stands, regardless of the angle from which we are looking, for what is to come in our epoch. The Chilean laboratory prefigures the coming mutations and solidifies the effective tendencies of public powers. The 2019-2023 political cycle is no different: it began with the experiential revolt at the heart of the metropolitan center, and it culminated with yet another constitutional scene seeking to replace the “constitución tramposa” now at the mercy of those that hold a deep admiration for the post-dictatorship subsidiary state. The newly elected advisors and experts will place the final cap to the momentum of institutional transformation, which welcomes back the official garments of public legality, official languages, and grammars of public security. And even if it is true, as Rodrigo Karmy has argued, that the most recent electoral results confirm the exhaustion of the Chilean post-dictatorship regime, the question posed to us is what capacity can constitutionalism and the constituent scene contribute for any possible transformation. [1]. In other words, can a breakthrough be produced from within the conditions of constitutionalism? As Martin Loughlin has recently demonstrated, our historical epoch is one marked by the irreversible triumph of constitutionalism; a design that differs from the modern constitutional state of representation and legislative legitimacy, envisioning an encompassing “dynamic order of an evolving society rather than an authoritative text, the basic ideals of constitutionalism have been realized” [2]. Constitutionalism emerges in the wake of the end of the liberal presuppositions of modern political theology and everything that it implies for the stability, separation, and judicial control of public powers.

The system of constitutionalism presupposes a total governmental nexus whose legality (discretionary, exceptional, based on the application of general principles / ius) will be treated as “an order of values that evolves as social conditions change” [3]. The passage into an administrative system of legal order presupposes a suture between principles and political necessity, state and civil society, economic rationality and executive planning and oversight. The old paradigm of the modern “dual state”, theorized by Ernst Fraenkel in the 40s have now supplied an internal abdication of positivist jurisprudence and minimalist constitutional framework, paving the way for the total constitutionalization as a flexible art of governance. Although it has been said that the first constitutional drafting of the new Chilean constitution was confusing and overtly ideological (a “magical realist” menu of rights and everything under the sun, one contemporary jurist called it), there is still something to say about the veneer of “social rights” within the epochal system of constitutionalism [4]. It is at times forgotten that the abundance of enumerated social rights implies the infrastructure of constitutionalism to bind legal, political, and social spheres into a regulatory apparatus without fissures. To govern the social means steering over the abstraction of social values. There are good reasons to discharge skepticism against constitutionalism, and they keep coming. Of course, the argument of skepticism, alas, rarely has good press (it fails to provide an insight into totality, Max Horkheimer famously argued), but I do think it is necessary to reclaim skepticism in the wake of the systematization of public constitutional principles [5]. Skepticism demands separation from constitutional absolutism and the legal nexus in which social action interaction finds itself. The skeptical position in the face of constitutionalism at its most minimalist bearing insists in the separation of life from law, of experience from political order, of expression from the order of rhetorical mimesis. The skeptic might not want to negative law as authority; but it wants to refuse the post-authoritarian conflation of life and social rule underpinning political domination.

To be able to see beyond the framework of constitutionalism is the task at hand, especially when the old predicates around the political subject and the social contract make their way back from a position of weakness and desperation (another way of saying that morality returns as nihilism). But one does understand its success: it is a compensatory psychic mechanism for the ongoing existential pain under the abstract orderability of the world. And where there is pain, there is also an accumulation of experience that pokes through the fictive state of things, refusing the objective staging of phenomena. Simply, it refuses to be absorbed by what’s available. At this point it becomes impossible not to recall the October revolt for one particular motive: mainly, that its emergence did not favor social demands nor was it driven by the grammar of a political program. Every experiential uprising has an aesthetic dimension – or even better, pictorial set up, a canvas of everyday life – that we have yet to rediscover. Painting from real life is no easy thing, some painters have told us. And something similar goes for the revolt: an alteration of gestures, inscriptions, graffitis, and corporal tracings, dissonances and masks color the expressive discharge against the pledge of objective realism and the police of languages. Indeed, pictorial skepticism can only emerge when there is an excess to representation; that is, when there is a sensible stubbornness to enter into contact with the unfathomable of the world as such. The world and its others, one should say. This pictorial dislocation of reality dispenses a rhythmic structure of the senses that is neither chaos nor destruction, but an arrangement of a different sort: the communication between souls (from soul to soul, Rimbaud had said) without regulatory mediations through the tokens of recognition and filiation. The rhythmic movements provide a spatial continuation devoid of justifications [6]. This is why pictorial semblance tells us something that language or the science of politics cannot. How can we last together as a community that is not?

Pictorial dislocation wants to claim distance and separation the non-totalizable while being there. Let us take a painting like Nicolas Poussin’s The Abduction of the Sabine Women (1633-1634): here we have a complex composition ordered around rhythms and modes of figures and distances; the possibilities of communication between forms and the expressivity of the figures hold everything as if in a state of grace. What is striking in the picture is the subtle mounting of activities and gestures without ever falling into the sublimation of the concept. There are no guidelines, and yet we feel that everything communicates. Or to put it in Poussin’s pictorial terminology: “what follows is unlearnable” [7]. I do not think that the painter tried to posit a negative foundation of knowledge for an even higher learning; rather the unlearnable is a practical activity (a gesture, a word, a contact) that is both unique and indispensable; impossible to let itself be arranged into a set of alienated function for a task. Poussin reminds us of the unknowability of rhythms taking place: an uncompressed experience outside the force of systematization. We need thought to incorporate something like this exercise in rhythm.

It does not come as a surprise that a conservative scholar during the first months of the October revolt hypostatized the event as a “gnostic program” claiming that: “Plato’s philosophy offered a simple solution to the gnostic problem: instead of adapting the world to our desire, the task is to adapt the soul of the world…we now know that public order is the our most urgent occupation” [8]. Needless to say, and as Díaz Letelier noted at the time, this was a political Platonism devoid of chōra as a nonsite of our sensible imagination that allows the renewal of the creative experience with the world [9]. There is no ‘common sense’ as the pragmatists of realism assert with conviction; there is only the sensorial passage allowed by the chōra. This is what constitutionalism needs to pacify and incorporate: the battle over the status of the soul at a moment in which material goods and its economic arrangement (and in the Chilean case, its negative subsidiarity principle) becomes insufficient for the psychic production of a rectilinear subject (a masculine subject, Alejandra Castillo would claim) [10]. The postliberal constitutionalism as it stands (and it is postliberal because it cannot longer said to appeal to an internal principle of positive norm nor to a source of ‘Higher Law’, but to the executive command of the principle); a world legal revolution of governmental administration of anomia, amounts to a systematic offensive that exceeds mere material appropriation or personal liquidation. And this is so, because its ultimate mission is the “soul murder” (seleenmord) that currently stands as the basic unit of the ensemble to govern over socialization [11]. Constitutionalism now appears as the last avatar of Americanism. Perhaps there is no higher and modest task at hand than affirming the medium of the chōra that preexists the submission of life into the polis, and which retains, like the pictorial gesture, the unlearnable and the unadaptive. Only this could slowly render another possible sense in the relationship between liberty and law.

Notes

* This text was in preparation for the conversation panel on the current legal and political cycle in contemporary Chile with Alejandra Castillo, Rodrigo Karmy, and Philip Wohlstetter that took place in May 31, 2023 at the Red May Seattle Forum. The conversation is now archived here.

1. Rodrigo Karmy. “Ademia portaliana: algunos puntos para el “nulo” debate”, La Voz de los que sobran, May 5, 2023: https://lavozdelosquesobran.cl/opinion/ademia-portaliana-algunos-puntos-para-el-nulo-debate/05052023

2. Martin Loughlin. Against Constitutionalism (Harvard University Press, 2022), 11-12.

3. Ibid., 161.

4. Pablo de Lora. “Constitucionalismo mágico”, The Objective, May 2022: https://theobjective.com/elsubjetivo/opinion/2022-05-07/constitucionalismo-magico/

5. Max Horkheimer. “Montaigne and the Function of Skepticism”, in Between Philosophy and Social Science: Selected Early Writings (MIT Press, 1993), 265-313.

6. Rodrigo Karmy. “The Anarchy of Beginnings: notes on the rhythmicity of revolt”, Ill Will, May 2020: https://illwill.com/the-anarchy-of-beginnings

7. Avigdor Arikha. “On Nicolas Poussin’s Rape of Sabines and Later Work”, in On Depiction (Eris | Benakis Museum, 2019), 112.

8. Manfred Svensson. “Una revolución gnóstica”, The Clinic, November 2019: https://www.theclinic.cl/2019/11/25/columna-de-manfred-svensson-una-revolucion-gnostica/

9. Gonzalo Díaz Letelier. “Un platonismo sin khorâ”, Ficcion de la razón, December 2023: https://ficciondelarazon.org/2019/12/04/gonzalo-diaz-letelier-un-platonismo-sin-khora/

10. Carlos Frontaura. “Algunas notas sobre el pensamiento de Jaime Guzmán y la subsidiariedad”, in Subsidiariedad en Chile: Justicia y Libertad (Fundación Jaime Guzmán, 2016), 123.

11. Ernst Jünger. The Forest Passage (Telos Press, 2003), 93.