state form

Emergency and the abdicating liberal executive. by Gerardo Muñoz


Over at the newspaper Perfil, the constitutional scholars Andrés Rosler and Guillermo Rosler have an excellent critical analysis of the omnibus emergency decree (“Decreto de Necesidad y Urgencia”) proposed by the newly minted Argentine President Javier Milei, which has the alberdinian ringtone in its title “Proyecto de Ley de Bases y Puntos de Partida para la Libertad de los Argentinos”. As members of his cabinet have described without vacillation, the aspiration of the legislative package has the high aspiration of enacting a true political revolution in the name of unmediated “civilization freedom” against the institutions and mediations of the state. Rosler & Jensen make a good case that Milei is far from being the ‘founding father’ of the instrumentalization of executive emergency; and in fact, at least since the the transition to democracy of the 1980s, Argentine executive power has increasingly become a normalized standard of broad executive decrees against the letter and spirit of Article 99 of the Argentinian Constitution. As a matter of habit and precedent, the exceptional character of the emergency decree over time has sort of become the supra-institutional norm of governance, thus blurring the state of emergency from the normal course of institutional mediations and consequential remedies. Paradoxically, Milei’s revolutionary force expresses more of a continuity with the collapse of the liberal modern state than a counter-revolutionary seeking a strong formal stabilization between the economic interests and state functions. 

As an addenda to Rosler & Jensen’s illuminating piece, I wanted to register the symptomatic and perhaps unique paradox of the revolutionary executive command; mainly, that at the same time that it discharges an ambitious and total encompassing legislative omnibus bill for the emergency, its purpose differs from the classical conception of political decision that seeks to harmonize a strong state and a sound economy, as Carl Schmitt famously argued in the 1930s. Indeed, Schmitt argues in “Strong State and Sound Economy” (1932) that authority emerges from success and achievement between the spheres. Now this success presupposes not only the effective deployment of state institutions (“the constitutional legalization of new institutions”), but also that the autonomy of the political system guarantees the separation between the unity of the state and the plurality of civil society [1]. This means that even if Milei’s libertarian ideal of a strong financial state is taken at face-value, the betrayal on the autonomy of the political reveals the feeble dimension of his executive force; a self-defeating overreach that, similar to the ways of the Trump presidency (2016-2020) in the United States, ends up revealing the executive weakness with respect to the conservation of the autonomy of the political [2].

In other words, by disdainfully acting through an unbounded economic ideal to disarm the state, the executive also abdicates his energetic capacity to reorganize the chaos from partisan, ideological, and economic interests in the long run. In his proposal to the business class to consolidate the authority of the state, Schmitt advised about the necessity of a robust and independent neutral bureaucracy for legislative deference and operative allocation of reasonable decision-making regulations. This allows us to differentiate another structural disparity between the Argentine and the North-American forms of executive power: whereas the first tends to maximize the power of its office through a vicarious political charisma that leads to its own abdication; the hamiltonian energetic executive (Federalist 70) has drifted towards a process of abdication or self-evolving expansion and containment within the principal tracks of a gigantic administrative apparatus. The picture in question is, of course, one of paradox: this means that the presidentialist model of the Latin Americanist design, at least broadly speaking, differs substantially from the energetic American model, precisely because every attempt to enact hegemonic force ultimately shrinks the overall reach of the administrative execution. Hence when Rosler & Jensen write about the executive that “…nuestra Constitución no adoptó un modelo de ejecutivo fuerte de impronta alberdiana, con amplias facultades, sino que se inspiró en el modelo norteamericano en donde este tipo de decretos no existe”, they only partially give capture the full picture. In other words, the contrast is not merely at the level of executive forms of potestas (executive order without Congress authorization and “Decreto de Necesidad y Urgencia”), but also, and more importantly, at the very capacities for abdication and abnegation of delegated power within the two institutional arrangements where the administrative institutional building from within plays a fundamental role in the functioning of formal liberal political designs. 

In fact, if we are to follow Rosler & Jensen’s astute intuition that Milei is nothing new under the sun, we could say that his executive habits, now cloaked under extreme commercial faith of the “invisible hand” of the market, follows to the letter the political tradition of the liberal criollo political class that the republican theorist Juan Bautita Alberdi criticized in the nineteenth century. As he wrote in his posthumous writings: “Argentine liberals are platonic lovers of a deity they have neither seen nor known. Being free for them does not consist in governing themselves, but in governing others. The position of the government: that’s all about freedom. The government’s monopoly: that’s all about liberalism…Liberalism, as we have to respect the discontent of other officials against us, is something that does not fit into the head of an Argentine liberal. The dissident is an enemy; the dissent of opinion is war, hostility, which authorizes repression and death” [3]. In this strong cautionary denunciation, Alberdi’s well-crafted portrait of Liberalism has at least two conjoined features that adds sharp historical relief: the deficiency of Liberalism was always the aspiration of unconstrained freedom (of interest) suppressing the autonomy of the political and dissent (the enemy), while increasing the frontiers of government over the space of civil society. In effect, the sovereign exception (broadly applies to Latin America) can be said to have been an exception to neutralize the very condition of exceptionality constitutive of sovereignty’s exclusionary political theology.

This will remind us, at least axiomatically, that Saint-Just’s maxim that a government ruled by hegemonic underpinning tends to produce only monsters and absolute enemies meets the truth of a historical pathology. In a wider panorama of Latin American political thought, the ideals of Liberalism have only fomented the administration of political stasis or civil war over the spiritual unity of constituent power in which the state and its institutions have been too fragile to overcome throughout its different renditions (the criollo oligarchic state, the national popular, the socialist welfare state, and the openly revolutionary socialist states) [4]. In contrast to the constitutional ‘royalism’ of the original North American republican organization of public powers and its abnegating executive office (a war of independence waged against the British Parliament), taking a look at contemporary presidential power allows us to derive the different compensatory strategies in confronting the collapse of the legitimacy of the modern legislative state [5]. The so-called “revolution of freedom” (with the consumer citizen at the center stage of the always unfinished and ongoing coercive consent required by the passive revolution) mandated by the executive against the institutional fabric is ultimately a renewed attempt at conserving the root and branch of the hegemonic logistics at the heart of the region’s post-independence apparent state and its rocky historical development.

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Notes 

1. Carl Schmitt. “Strong State and Sound Economy: An Address to Business Leaders” (1932), appendix in Renato Cristi’s Carl Schmitt and Authoritarian Liberalism (University of Wales Press, 1998), 221.

2. I argued for this position in several publications a few years ago, see for example Gerardo Muñoz, “¿Se avecina un momento Weimar en los Estados Unidos?”, La voz de los que sobran (Chile), November 2020: https://lavozdelosquesobran.cl/opinion/se-avecina-un-momento-weimar-en-los-estados-unidos/07112020 

3. Juan Bautista Alberdi. Escritos Póstumos: Del Gobierno en Sudamérica (1896), Vol.IV, 188.

4. The continuity of stasis at the foundation in the region is something that can be derived from Rafael Rojas’ historiographical contribution Los derechos del alma: ensayos sobre la querella liberal-conservadora en Hispanoamérica 1830-1870 (Taurus, 2014)

5. Eric Nelson. The Royalist Revolution: Monarchy and the American Founding (Harvard University Press, 2014). 

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.

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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. 

Erich Unger’s The Stateless formation of the Jewish People today. by Gerardo Muñoz

The same year that Carl Schmitt’s Political Theology (1922) appeared in the intellectual scene of the Weimar Republic defending the exceptional of the decision against immanentism, a short opuscule entitled Die staatenlose Bildung eines jüdischen Volkes (The stateless formation of the Jewish People, 1922) written by Jewish philosopher Erich Unger was published as an untimely response to the question of “Jewish identity” (Judentum) and its fate in the wake of civilizational collapse. The fact that this essay – as well as his 1921 book Politics and Metaphysics, which Walter Benjamin described as the most important political reflection of his time – has remained on the fringe of intellectual history, political theory, and the history of thought is something that anyone must seriously reflect upon. It should not come to a surprise that this text comes back today to attentive readers evidences how every creation, event of speech, or written word does not reside in the preventive invention of a specific audience; but, on the contrary, in the way that its words, images, and thought will generate the evanescence community of extemporal readers. The century that separates us in time from Unger’s essay bears witness to its ultimately proximity and prophetic calling. 

In 1922, for Unger, very much like for us today, thinking about politics meant finding a way out of a catastrophic politics [1]. If Politics and Metaphysics had suggested the necessity of an existential and energetic exodus for breakthrough against civilizational sedentary absorption and domestication, in The stateless formation of the Jewish People (1922) Unger argues critically against a state Zionist project that artificially, and through the anti-universalism paradigm of force (just as Weil would argue during her war writings about politics in the West) will attempt to “absolute Judaism, and all the manifestation of judaism that remain outside, hostile to the state trend” [2]. For Unger, Zionism as a political ideology and state program fails to come to terms with the concrete “outside the world historical power” that characterizes the universalism of the Hebrews as a theology marked by dispersal in the West; that is, outside the philosophy of history of sacrifice and soteriological incarnation of the Christian eon [3]. Hence, Zionism’s political form of the Jewish people was epochally insufficient – too empirical and thus trapped into the modern logic of racial and biological survival – to express the true conditions to enact as the “a priori” for the question of Judaism as a grounded redemptive universality. And insofar as Zionism presupposes something “outside of itself” (corporeal and spiritual Judaism), for Unger “the demand for an imperial state…must modify its demand, since it should express its underlying basis of the demand differently” [4]. The Hebrew ‘universality’ was metaphysical as much as “concrete”, based on modal ritual and myth, and for this reason at a distance from the discharge of formal logical statements [5].

What did the apriorist consideration of Judaism mean for Unger? The hypothesis in The stateless formation of the Jewish People (1922) was far from bring esoteric: Judaism is a exclusively a spiritual, immutable soul matter that hoevers the surface of the corporeal; and, more importantly, “it governs itself independently through the insubstantial for of a concrete existence” [6]. In other words, for Unger before the unity of the “People”, the articulation of the “movement”, and the erection of a positivist constitution based on Zionist nationalist principles, one should consider the sensible fabric of a people  – a dispersed, multiple, and metapolitical communities that have endured outside the geopolitical and sacrificial structuration of Christian history – that each and every time have insisted on the separation from the subsumption into a sphere of power and domination, into an ethnic-community validated by recognition and its claims to “consciousness” at the most empirical and material level. But this would amount to an effective liquidation – a surrogate for the acceleration of the dominant religion of historicity – of Judaism into yet another planetary religion, and an expression of power that integrates itself into the struggle for the nomoi of a contained and policed world. For Unger, “empirical Zionism” becomes the attempt to reduce Judaism to a “real self-executiving power” that will diminish the “supreme expression of existence” of Judaic spiritualism as “an inner experience that it is not historically given but that must precede it in order to make Judaism an endless and inevitable precondition of a truly world historical project” [7]. In this mold, Judaism will be dispensed into the theaters of the constitutive war of historical progress. 

As such, Judaism as theologically transcendent is not to be conflated into the corset of a political fictive ethnicity, but rather as an autonomous transmission that allows the communication from soul to soul that descends all the way from its metaphysical beginning. And at this beginning that has exerted itself against the whirlwind of historical fixation (the very structure of civilization after Cain according to his mentor, the Jewish theologian Oskar Goldberg) were metaphysical and errant fragments of encounters and communication, of psychological energy and dispersal of shared spiritual goals. If this is lacking, then no political form [for Judaism] will arise, but only a foolish copy of the already-existing, because the spirit cannot be skipped and left out without the rising danger” [8]. It is telling that for Unger this rising danger can emerge not only from indirect powers that exert pressure against the unity of authority – as Schmitt would have in his framework of his theory of sovereignty in Political Theology (1922) – but also, and more dramatically, from the suppression and alienation of the spiritual interiority by which a “people” never coinciding with itself can arrive at the “crystallization point” (sic) outside of the individual [9]. 

Circling back to the problem of “catastrophic politics” – that Schmitt wants to “contain” through decisionism, and that Unger wants to overbecome through an exodus from political thresholds – at the crux of Unger’s indictment of the arcana of Western politics is the “it has set everything in such a way so that the metaphysical or religious area, the internal direction, stands as a mere private thing”, sidestepping the fact that even reality and the constitution of the principle of reality depends on interiority for the possibility of an outside. And it is this outside what allows the a priori historicity that Oskar Goldberg had defended in his book The Reality of the Hebrews (1925). As the late Bruce Rosenstock lucidly argued, for Goldberg (who stands as the unnamed reference in Unger’s position about an experiential Judaism), the “a priori” takes place in an ur-time in which the physical world was closely connected to the transcendental presence of the gods, in which the people cease to be a cultural, ethnic, or identitarian unit in order to become a humanity capable of “overcoming the catastrophic history of wars sparked by competition over scarce resources” [10]. In endorsing the instrumentalized politico-theological reduction of state Zionism, Unger sees the abdication of the “Jews as the people who have driven the spirit the furthest…to cultivate the spirit deeper, more skillful, more subtle, to be the most deeply suitable through this tension” [11]. A true and vital reality was in the conspiracy between souls, wherever and whenever these meet as the ultimate manifestation of the fidelity to the unspeakable mediation between the true life and the divine. 

At the height of 1922, Unger did not suspend from a certain self-afflecting optimism, and towards the end of The stateless formation of the Jewish People (1922) he writes: “The Jews should not overlook their uniquely favorable situation; mainly, they have been materially unhistorical for two thousand years, and the only one that have not been beaten into a reality and into the shackles of the past or the empirical state that others have had to suffer” [12]. In Unger’s reading, Judaism and its errant communities (the ‘wandering Jew’ that Joseph Roth will narrate in these years, but that one must trace to the mythic texture from expulsion of Cain to the marrano) have shown the density to gather through spirit a resistance to the paradigm of force and the technicians in charge of dominating over materialism. As Unger states unequivocally: “the one who technically masters matter is ultimately defeated” [13].

This was Unger’s anti-promethean wager in 1922 skeptical of all political horizons oriented towards foreseeable catastrophes blinded to the underlying cyclical polarity of barbarism and civilization in the West.  The wayward asymptote of a non-catastrophic politics was not to be found in the abstraction of the political concept or the mechanical construction of a state form through assimilation and usurpation, but in what Unger termed, in the most intense poetic moment of his essay, the Hebrew “ increasing decipherability of its own origin”. And unlike Enlightenment historians such as Edward Gibbon who saw the state as the irreversible revolution in world history that brought the age of the nomads to an end; for Unger the twentieth century meant the fixation of the state degenerating in the worst of barbarisms. It was the existence of the unit that must generate the internal limit to the political, and not the political as the external threshold to what is inherited in the world. And yet, insofar the events of thought, language, and imagination take place, the origin (urgeschichte) will always escape what has been sedimented by rubble and wars that fuel planetary destruction and collapse. 

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Notes 

1. Erich Unger. Die staatenlose Bildung eines jüdischen Volkes (Verlag David, 1922).

2. Ibid., 6.

3. Ibid., 10.

4. Ibid.,  15.

5. Erich Unger. “Universalism in Hebreism”, trans. Esther J. Ehrman, The Journal of Jewish Thought and Philosophy, Vol.4, 1995, 307.

6. Erich Unger. Die staatenlose Bildung eines jüdischen Volkes (Verlag David, 1922), 8.

7. Ibid., 19.

8. Ibid., 25.

9. Ibid., 24.

10. Ibid., 29.

11. Bruce Rosenstock. Transfinite Life: Oskar Goldberg and the Vitalist Imagination (Indiana University Press, 2017), 172.

12. Ibid., 31.

13. Ibid., 32.