Ulpian – Infrapolitical Reflections

In the broadest sense of the term, questions about the law are predominantly about its justifications, and more specifically about where to locate the act of justifying. That one of the most important elaborations of exclusive positive authority was dependent on a theory of justification to transfer norms of authority (a theory labeled the “normal justification theory”) goes to show that the traditional opposition between positive law as pertaining to the sphere of rights and guarantees and natural law to that of justification comes short in the understanding of the internal development of judicial reasoning in the second half of the twentieth century that unsurprisingly coincides with the crisis of the secular liberal state [1]. The reliance on a “justification theory” will imply not only a new conception of legitimation, but also the outsourcing of the self-referential determination of “Nature” through which Roman Law constructed its principle of the rule of law and the validity of adjudication. As we know, Roman Law did not speak of “justification” but rather of necessity emanating from Nature, which could not oblige to performance or act through by what by nature is impossible or wrong [Ius plurimis modis dicitur: uno modo, cum id quod semper aequum et bonum est ius dicitur, ut est lus naturale]. The natural source of law, as famously defined by Ulpian in the Digest, is in this way permanently tilting between the good and the equitable (ius est ars boni et aequi). This is a matter of first principles of the law (ius), which did not solicit “argumentation” or second order reasoning to uphold its internal legal validity.

The passage from natural necessity in the “hands of the priest”, in Ulpian’s conception, to the modern autonomy of justification takes place when principles are no longer the exclusive framework parameters for operative claims, but the very activity that defines the elasticity of an actual norm and its argumentation within a concrete positive order. This is one way in which one should define the specificity of the American practical legal order (not just its legal philosophies, which tends to run counter to this, cloaked under the vestigates of positivism vis-à-vis the letter and spirit of the Constitution) through juridical administration, whose structural polarity of command and justification defines the administrative process. Early in the twentieth century, Guglielmo Ferrero noted that one of defining characteristics of the American political model rested on a magistrate judicial power that fundamentally differed from European Common Law or positivist tradition in its practice [2]. Contrasting the independence of a limited bureaucracy to the predominance of an all encompassing “juridical administration”, Ferrero noted (although lacking the legal vocabulary to articulate it positively) that the administrative nexus will infinitely expand over social practical reasoning due to the unrestricted force of justification. And the need for justification is what outsources the ancient principles of natural law (ius) to the executive authority that renders operative every sphere of social action and interaction even if they are not explicitly declared prima facie by those principles. The efficacy of justification is the linguistic deployment – a rhetorical craft through rational argumentation – that will generate specific verisimilitude to the otherwise arbitrary and uncontested enactment of its principles. Justification could be said to appear as the work of language that provides internal cohesion of an array of coordinated conditions for secondary social actions.

Since the inception of modern secularization, the nature of justification is the realization of the works without end, which inverts the notion of “justification” in the theological sphere that we owe to Paul. For the Apostle the idea of justification or dikaiōsis implies the making of righteousness through the soteriological narrative of Christianity that subsumes humanity’s fall (sin) for a redeeming liquidation of law. This means that man’s just act in faith generates “justification” (dikaiōsis) of life for all people (Roman 5:18). And as we read from Galatians 2:6: “Know that a person is not justified by the works of the law, but by faith in Jesus Christ. So we, too, have put our faith in Christ Jesus that we may be justified by faith”. The force of justification (dikaiōsis) trumps the production of the works of law that divides human beings in the immanence of this world between the saved and the condemned, the free and the imprisoned, the friend and the enemy. Whereas justification in the theological sense can only imply the ‘end of law’ for righteousness (Roman 10:4), in its late secularized rendition it implies exactly its distorted mirror image: to justify is transformed into the binding force over the void of authority that renders effective the hollow machinery of its own self-validation.

It is telling that in an essay that was first published in German in 1938 under the title “Justification and Justice” (“Rechtfertigung Und Recht”), the German theologian Karl Barth takes note on the transformation of the State becoming “demonic” not due to its utter demise, but as a profanation of the theological justification of “unwarrantable assumption of autonomy as by the loss of its legitimate, relative independence, as by a renunciation of its true substance, dignity, function, and purpose…a renunciation which out in Caesar worship, the myth of the state and the like” [3]. The emergence of the “demonic nature” of the State was internal of its own making , since it conflated faith and people at the same level of social immanence, while preparing the actual realization of an authoritarian world without escape. Following Heinrich Schlier’s work on the figure of the State in the New Testament, Barth will suggest that this political totalization secularized the limit posited by the suum cuique of justification into an instrument of endless domination that characterized the emerging political reality. In fact, in his essay “The State according to the New Testament”, Schlier will define the phase of the demonic State as one colored by the inception of the sphragis, that is, “the sign of the state party as it were the secularized seal of baptism which levels all differences between men and only distinguishes between friend and energies of the ruling system. Those who refuse the new metaphysical slave are deprived of their economic foundations. Even economic life is directed by the spirit of the beast” [4].

Only in such context does the true light of the force of justification comes in full display: the sphragis can only labour to justify the vicarious social existence of the mystery of iniquity infinitely redressing itself as legal argumentation and juridical principles, administrative determinations and executive commands. And Schlier could not let the question pass: “What will Christians do in this situation? They will no longer want to have any part in this caricare of a state, they will “go out…they will simply be outlawed and persecuted” [5]. More than ever today, we are in desperate need of elaborating the elementary aspects of a political theory of demonology that defines a certain point where there is no turning back. To outlive persecution and tear the bond of justification shatters the civilizational course that has sublimated the end of time as an instrument of daemonic absorption into endless legal statues.

Notes

1. Joseph Raz defines “normal justification thesis” of legal authority in this way: “I shall call it the normal justification thesis. It claims that the normal and primary way to establish that a person should be acknowledged to have authority over another person involves showing that the alleged subject is likely better to comply with reasons which apply to him (other than the alleged authoritative directives) if he accepts the directives of the alleged authority as authoritatively binding and tries to follow them, rather than by trying to follow the reasons which apply to him directly”, in “Authority and Justification”, Authority (NYU Press, 1990), 129.

2. Guglielmo Ferrero. “American characteristics” (1910), The Atlantic. 226.

3. Karl Barth. Community, State, and Church (Peter Smith, 1968), 118.

4. Heinrich Schlier. “The State according to the New Testament”, in The relevance of the New Testament (Herder and Herder, 1968), 236.

5. Ibid., 237.

In his chapter on the radical theology of abundance and ethics of Karl Barth, Mårten Björk discloses a central concept to the reformist theologian: the suum cuique, a term that prima facie could be rendered in natural law definition of legal justice, inherited from Roman lawyer Ulpian, as “may all get their due”. In the thomist tradition the legal notion of epikeia promptly became equity as the moral supervision of law’s principle (ius) understood as the application of the fair and the objective good. The justification of the balancing of aequum became a regulatory mediation on the grounds of a fictive principle of nature as moral reasoning, which has been well documented by Stephen Humphreys [1]. What makes Barth’s drawing on the notion of suum cuique in his interwar pamphlet Church and State (originally entitled Justification and Law, 1938), on the contrary, is precisely that it is not reducible to equity, but rather as Björk explains it: “the limit to our life, a limit brought forth by death itself, is in the end the vast chams that posits the creature as create of God…and this has ethical and political consequences” [2]. This is telling, and my aim here is to supplement the discussion in “Abundance and Scarcity” by showing its radical asymmetry with the reasonableness of the natural law. Barth’s anti-activist Church (although not neutral in the wake of the total state of the 30s) and apathy towards morality, stands as a sui generis bearing.

First, in the moral natural law tradition of equity (epikeia) “giving each one their due” becomes a strict legal-authoritative command principle on the reasonableness of nature centered on the ontology of the person. It is quite the opposite for Barth who does not favor a constant moral adjudication, since the separation between Church and State presupposes a previous divine justification that belongs exclusively to the Church, but not to the state. In fact, law practiced on the condition of natural principles will undermine the authority of the liberal positivist state, which Barth defends vehemently, making the case for its coherence with the teachings of the New Testament: “The democratic conception of the state is justifiable expansion of the of the New Testament…Christians must not only endure the earthly state but they must will it as a just state, not as a “Pilate” state” [3]. It is not surprising, then, that Barth wrote this tract openly defending the authority of the modern positivist state, contrasting it to the anti-statist unjust pretarian judgement of the trial of Jesus. This makes sense given that the pretorian ius honorarium could be understood, at least in part, as belonging to the tradition of the moral balancing of equity between morality and norms (just as the two irreducible kingdoms) [4]. Barth’s defense of the positivist state is even contrasted to natural law, which for Barth is incommensurable with the word of God: “We cannot measure what law is [in the State] by any idea of natural law…” [5].

Accepting the primacy of the equity of a substantive bonum will not only serve to override the authority of the state, but also, and more importantly, to flatten out theology’s monopoly over divine justification. At this point Barth is quite explicitly in saying that this is what took place – and I think he is correct, specially if we take into account that the degenerate legality in Nazi Germany and Stalinist Russia was not an abuse of positivism, but a consequence of the open-ended common and natural law principles to the point of distortion – in the wake of fascism and Bolshevism in the interwar years of Europe. Barth writes with this in mind against artificial heavens on earth, as part of a hyperbolic “politicizing from above”:

“Fascism and Bolshevism alike will be dethroned and the true order of human affairs will arise. Not as heaven (not even a miniature heaven) on earth! No, this “true order” will be able to arise only upon this earth and within the present age, but this will take the place really and truly, already upon this earth, and this present age, in this world of sin and sinners…this is what the Church has to offer to the state…” [6].

The political domination of the total state amounted to a conflation between the lapsarian condition of man and the theology of eternal life. The passage or mediation between the two dimensions, which he also described as a “tailor made garment” was the suum cuique, understood as a limit to life and death beyond morality and biological reductions. Barth insisted on the principle of separation in face of every temptation of technico-rational closures. Thus, by externalizing divine justification to the sphere of theological eternity, Barth’s conception of “giving one’s due” was radically disambiguated from the Nazi motto “Jedem das Seine” (to each his own) in the concentration camp of Buchenwald in 1937, made possible by the opened force of common law adjudication against the state positivist authority (understood by Nazi legal scholars as “too Jewish”). This was the barbaric dereliction of duty of the state becoming what Barth called a “clerical state” [7]. Barth’s ethical limit on finite and eternal life, so well reconstructed in Björk’s brilliant monograph, can only be a witness to a ‘world passeth away’ to which no priestly jurists have the last word unless catastrophic consequences are expected. The ethical response to the lapsarian condition was a radical drift from the dangers of natural absolute rationalism that was directly implicated in the arousal of immanent powers and the reduction of the population as mere administration of doctrine of last things through consciousness and not grace. The suum cuique introduced a radical exteriority in which all men became “strangers” (to the Church, national identity, the community, to the social) whose proper involvement pertained to the eternal mystery of life and death.

Notes

1. Stephen Humphreys. “Equity before ‘Equity’”, Modern Law Review, 2022, 1-37.

2. Mårten Björk. The politics of immortality in Rosenzweig, Barth, and Goldberg: Theology and Resistance Between 1914-1945 (Bloomsbury, 2022), 115.

3. Karl Barth. “Church and State”, in Community, State, and Church (Anchor Books, 1960), 146.

4. Gerardo Muñoz. “El pretor romano y el ius honorarium”, Infrapolitical Reflections, 2022: https://infrapoliticalreflections.org/2022/04/24/el-pretor-romano-y-el-ius-honorarium-por-gerardo-munoz/

5. Ibid., 147.

6. Ibid., 148.

7. Ibid., 132.