Two comments on Pedro Caminos’ essay on Vermeule normative framework. by Gerardo Muñoz

In a forthcoming dossier on “common good constitutionalism” at the journal of the Universidad del Salvador (Buenos Aires), edited by the good offices of Guillermo Jensen, there is a featuring essay, “El concepto de marco normative en la obra de Adrian Vermeule”, by Pedro A. Caminos that makes an original attempt to read Vermeule’s legal theory from strong jurisprudential position, and it does so by suggesting that the ‘marginalization’ of the judiciary and the transformation of the administrative state (the Chevron paradigm) implies a normative framework, analogous to Martin Loughlin’s superlegality or Fernando Atria’s common norms (I would be tempted to also add to this list Scott Shapiro’s conception of law as planning). Although I agree with the normative framework in both scope and design of the constitutional theory, there are two underlying elements that I would slightly challenge for further discussion. The first element concerns the notion of tyranny, and the second one to the allocation of “politics” in administrative framework

First, towards the end of the essay, Caminos cites Robert Alexy’s rendition of the Radbruch formula in which no positive law can be tyrannical (or unjust) or it ceases to be legitimate law from an external perspective. For Alexy the conditions of intelligibility must answer not only to internal rules of recognition as positivism would have it, but, more fundamentally, to the challenge of the participant perspective, which is external to the rule of recognition. The problem with the Alexian antipositivist stance in Vermeule’s normative framework is that it would seem to come to a halt if the institutional design is constructed as “second best” safeguards for administrative decision-making. Indeed, the second-best optimizing rule is the same thesis defended in The Exeuctive Unbound (2010), which suggested that ultimate concerns for tyranny (trypanophobia) could ultimately serve the master that it seeks to prevent. To some extent the administrative state – if read from the internal point of view of executive power – is best understood as the optimizing and taming of presidential power through the normative framework. Now, it is true that in “common good constitutionalism” the emphasis against tyranny is counterposed by an objective morality proper to the ragion di stato, which explains why the “second best” optimizing rule is silently replaced by the determinatio that defines the construction zone of the praetorian decision making. The nuances here are important: whereas second-best optimizing rule has no moral purposiveness; the determinatio is by nature a moral discriminatory principle (ius). Whereas the Bartolist jurisprudence aims to tame the privately infused tyrannical forces for good government; the unbounded executive does not fear tyranny as long as it controls the immanent force of administration [1].

Secondly, Caminos derives from the normative framework the construction of a common legal space in which disagreements could flourish. And Caminos sees this as consistent with Schmitt’s concept of the political as the distinction between friend and enemy. But so far as the notion of enmity in The Concept of the Political moves through different determinations, it is an open question as to which determination are allocated or relevant to the normative framework. However, if what defines the “reasonable arbitrariness” of administrative adjudication is predominantly informed by cost & benefit analysis, it would seem that it is value rather than the political distinction the distinctive feature of its logic. This makes sense given the jurisdictional supremacy of the administrative state, which subsumed the legislation into the normative framework. As Carl Schmitt predicted it in his Tyranny of Values, in this context function of the legislator becomes that of a tailor of suturing and producing new mediations for value stratification [2]. But could one conceive the concept of the political within the values of administrative rationality? At the end of his essay, Caminos himself seems to think otherwise, and suggests that normative framework allows for a new conception of political friendship. Of course, in the regime of value administration friendship is defined first and foremost by those are “valued” or “devalued”. Ultimately, this would be strange conception of “friendship”, since, as De Maistre showed, the friend is always outside the margin of utility, and thus constituted outside value [3]. Hence the difficulty for an alleged new politics of friendship: either the concrete friendship is diluted into a “fellow man” (blurring the specificity of friendship) or embracing as friends only those that share common values that can be imposed to non-friends, but who are not recognized as formal “enemies”. This second variant is most definitely the common good ideal type. In either case, friendship and politics become two poles in the procedural organization of values: a hellish reality notwithstanding appearing as a ‘friendly’ paradise of values.

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Notes

1. Adrian Vermeule. Common Good Constitutionalism (Polity, 2022), 27-28.

2.Carl Schmitt. La tiranía de los valores (Hydra Editorial, 2012), 147.

3. Joseph De Maistre writes: “¿Qué es un amigo? Lo más inútil del mundo para la fortuna. Para empezar, nunca se tiene más de uno y siempre es el mismo; lo mismo valdría para un matrimonio. No hay nada que sea verdaderamente más útil que los conocidos, porque se pueden tener muchos y, cuantos más se tengan, más se multiplican las posibilidades en cuanto a su utilidad.”, in El mayor enemigo de Europa y otros textos escogidos (El Paseo, 2020), 212.

Retreating from the Politics of Eternity: on Timothy Snyder’s On Tyranny: Twenty Lessons from the Twentieth Century. By Gerardo Muñoz.

snyder-on-tyrannyWe often cite James Madison’s acute observation from Federalist 10: “Enlightened statesmen will not always be at the helm”. Timothy Snyder’s On Tyranny: Twenty Lessons from the Twentieth Century (2017), is written keeping this political conviction in sight, so indispensable to the democratic aspiration of the framers more than two centuries ago. Snyder, however, is no messenger of good news. In line with those that have taken seriously the rise of presidentalism, and the expansive politization of the executive branch in recent decades, Snyder is making the case for a timely warning against a potential threat for tyranny in the wake of Donald J. Trump victory at the end of last year.

On Tyranny is informed by Snyder’s expertise and research as a historian of Eastern Europe and the Holocaust, which have resulted in landmark contributions such as Bloodlands: Europe between Hitler and Stalin (2012), and Black Earth: The Holocaust as History and Warning (2015). In both of these books, Snyder has shown quite convincingly, how the erosion of institutions and the rule of law, due to both communist and fascist planning and dismantling over the control of the eastern region, paved the way for absolute anarchy and systematic destruction that made the Holocaust a juridical and political reality. Snyder does not mean to say, by way of an easy equivalence, that Trumpism amounts to a repetition of this historical period. Rather, On Tyranny is a precise warning on two levels: on one hand, it is a plea to rethink the necessity of institutions in the times of the rise of what Arthur Schlesinger Jr. called the imperial presidency; and secondly, to learn as much as we can from History, particularly from the historical evidence that confirms that every republic has always combated and affirmed itself against a latent imperial drift. Snyder’s thesis, presumably informed from a historiographical position, also suggests a political anthropology. In other words, the battle against an empire solicits an abandonment of the voluntary servitude that only feeds the incremental force of reaction. Our present shall not be indifferent to this.

After the 2016 election what is really at stake is whether the Federalist warning against the rise of factions is enough to contain an unprecedented alignment of vertical hegemonic power. There have been scholars, such as constitutional lawyer Eric Posner in The Executive Unbounded (2013), who have said farewell to Madisonian democracy in light of the exceptional upsurge of the executive branch [1]. On Tyranny does not go this far, but it is obvious that its purpose is not to engage in the aporias and intricate developments of constitutional law in order to render feasible an argument in favor of a retreat from hegemonic politics. Non-hegemonic politics always entail breaking the spell of a given set of coordinates that have produced an impasse. Snyder provides an array of historical examples: Rosa Parks in 1955 or Winston Churchill in the darkest moment when Hitler materializes his territorial expansion. It is in these perilous moments that the retreat from hegemonic politics does not mean renouncing political action. It means, first and foremost, abandoning the hyper-political consistency that defines the eternity and enmity of the political. But I do not want to get ahead of myself while briefing Snyder’s book. Havel, Parks, Churchill, Arendt, these are names that metonymically index Snyder’s plea for a politics of vocation in a time when rhinoceros are roaming through the landscape. The reference here is, of course, Ionesco’s well-known 1959 play Rhinoceros, which Snyder introduces when discussing the submission to politics of untruth:

“Ionesco’s aim was to help us see just how bizarre propaganda actually is, but how normal it seems to those who yield to it. By using the absurd image of the rhinoceros, Ionesco was trying to shock people into noticing the strangles of what was actually happening. The Rhinoceri are roaming through our neurological savannahs….And now, as then, many people confused faith in a hugely flawed leader with the truth about the world we all share. Post-truth is pre-fascism” (Snyder 70-71).

The rhinoceros are the political converts, which are always one step too close to the work of hegemony and its delirious power. It is then entirely consistent that Snyder also makes the claim for the protection of a new sense of privacy (sic) that could contain the boundaries between oikos (private) and the polis (public) against the drift towards totalitarianism (Snyder 88). Tyrannical politics is also a politics without secrets. It does not necessarily emanate from this position that a new egotist sense of privacy will act as a modality in an existence that is now beyond risk, guarding its own skin from the wild beasts. Snyder recognizes that there is no politics without factions, as Madison would have also said. Hence, there is no real politics without a minimal corporeal investment (Snyder 83-85).

But we have moved away from the level of hegemonic thirst for domination, conceiving a relation with politics that is not exhausted in the singular existence. Or put in different terms, only in existence could a politics of lesser domination be allowed to emerge against the threat of factions. Politics should not be oriented towards the end of the administration of life, which always amounts to a biopolitics. A republicanist politics is the orgazanition of public and social life that prevents both, the intensification and nullification of life in the polis.

What becomes troublesome, as Snyder makes clear, is that the administration of politics is today justified under the name of terror. In fact, Snyder states: “Modern tyranny is terror management” (Snyder 103). This is, indeed, an actualization of the schmittian withholding of the state of exception now normalized at the heart of democratic systems. Hence, the new danger is not just juridical, although it is also that. Snyder presses on the fact that current governments and parties – from Putin’s Russia to Le Pen’s Front National to Trump’s populist rallies in Florida or North Carolina – are borrowing props and gestures from the 1930s, a decade that Steve Bannon has labeled “exciting”. It is no surprise to anyone that we are currently living in times justified by exception in the name of the “crisis”. It is this time of excitement that provides a grammar of historical teleology and inevitability, and further, of judgment. However, the passage from inevitability to something darker is what Snyder calls the politics of eternity, which is really the core of his book, and the sign under which neo-fascism abides:

“…the politics of eternity performs a masquerade of history, though a different one. It is concerned with the past, but in a self-absorbed way, freed from with any real concern with facts….Eternity politicians bring us the past as a vast misty courtyard of illegible monuments to national victimhood, all of them equally distant from the present.” (Snyder 121).

If there is no real concern with facts, it is because all politics of untruth are politics to cover the Real, or what Jaime Rodriguez Matos has recently called the formless thing [2]. And for Snyder, national populists of the far right are eternity politicians providing a form that at the end of the day is just sending signs of smoke (Snyder 122). What is being covered is the void that leads to a point of no return: mainly, that there is no “greatest moment to return to”, since it is impossible to resurrect Empire. This inevitable untruth provides illusory grounds to radical right rhetoric in Europe. Although, we must infer that this is also the moment where Trump appears in its maximum existential danger to us.

It is uncertain if the institutions of the West will withstand this immanent threat. Although it is in this conjuncture that the rule of law becomes as central as ever before, and to discard it, is perhaps one of the greatest acts of moral decrepitude. It is here where we awake from the sleepwalking of eternal politics, as we are confronted with the historical sense that gives us the phantasmatic company of those who have perished, and that have suffered more than us (Snyder 125). It is in this affirmation, we agree with Snyder, that we find a substantial push against all tyrannies.

 

 

 

 

Notes

  1. Eric Posner & Adrian Vermeule. The Executive Unbound: After the Madisonian Republic. Oxford: Oxford University Press, 2013.
  2. Jaime Rodriguez Matos. “Politics, Trace, Ethics: Disciplinary Delirium—On Trump and Consequences”. Paper Read at USC Conference, November, 2016. https://infrapolitica.wordpress.com/2016/11/14/politics-trace-ethics-disciplinary-delirium-on-trump-and-consequences/