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.

John Rawls and the justice of civil war. by Gerardo Muñoz

Nowhere in his published work does John Rawls treats the concept of civil war explicitly or by that matter in relation of his concept of political liberalism, although it is central to genesis. In a Spring semester of 1969 lecture at Harvard University, which remains for the most part unknown and only alluded by specialists of his (although never subject to substantive treatment), “Moral Problems: Nations and War”, Rawls takes up the problem on its merits [1]. This is a lecture that took place in the wake of the Vietnam war, the post-1968 context, and during the years of the definite settling of “global civil war” intensifying in every corner of the world. There is little that Rawls when treating the problem of war within the tradition of liberalism, was also aware of the factical nature of war of his present; that is, the transformation of war as a legitimate declaration between nations (at that point outlawed by the international Kellogg-Briand Pact) to a predominately a war within nations, that is, a permanent civil war. In this lecture – which one does not need to summarize given its broad historical strokes and technical determinations – Rawls crafts an typology wars in international law, as construed by the ius gentium, a theme that will later be the subject of his late book in international relations principles Laws of the People (1993). What is surprising is that in this typology, Rawls defines civil war as a thorough conflict aiming at “social justice” to transform the state. A civil war, then, is no longer what precedes the foundation of ‘legitimate authority’ proper to sovereignty, but it is rather the means by which something like “justice” becomes the mediation of the “Social”.

From this it follows, that for Rawls civil wars either neither wars of aggression or wars of sessions, two forms that would be exclusionary to his definition grounded on ‘Justice’. Hence, the “justification” of civil war could only be a just war insofar as its aim grounded in social justice as the effective realization of the well-being of all the inhabitants of the polity. For Rawls this was the ‘active’ continuation of the ideal of the French Revolution of 1789. Indeed, one could claim that for Rawls civil war is the continuation of revolution after the principle of universal recognition was achieved through rights. The ideal of Justice, then, was never the well-ordered natural law theory of revolutionary change (endorsed by many Jacobins, such as Saint-Just), but rather an intra-level recognition of social rules within the plural system of value differences. Coinciding with the development of positive law as grounded in social facts and guided by a ‘rule of recognition’ (in H.L.A Hart’s well-known elaboration), Rawls’ theory of civil war was the mechanism for a social fact-based conception of justice that was predicated in the optimization of risks, regulations, and re-distrubution of post-recognition equity of the activist state. Indeed, social justice insofar it was no longer merely sovereign authority, took the function of social facts through the administration of a permanent social civil war.

Neither an event nor an exception, civil war for Rawls is a free-standing metapolitical paradigm of the new “transformative” conception of the Social ordered purposely around the principle of Justice. Paradoxically, the conditions of promoting “social justice” (whose echoes we still hear today from the political class as well as from the jargon of academic political ideology) is not limited to the “veil of ignorance” or the “originary position” for social action, but rather in the actualization of a latent stasiological paradigm. This esoteric unity is neither an exception nor a deviation from Rawls’ mature political thinking around social justice; but as all true political paradigms, an invariant mode of his thinking. This is why he points in the 1969 lecture the Spanish civil war as paradigm of stasis as social justice, and in his essay “My religion”, the American Civil War led by the exceptional executive authority of Abraham Lincoln as necessary to the “original sin” of human slavery [2]. And as Eric Nelson has convincingly argued, the anti-pelagian conception of sin in Rawls’ thought amounts to a secularized theodicy of social force: a regulatory physics in the aftermath of the crisis of the sovereign state. Although ignored by Nelson, the full picture of Rawlsian conception of the “Social” is not complete if one does not take into account the stasiological paradigm that legitimizes the aims of social justice. And if the internal conflict is latent within the Trinitarian ontology (as Political Theology II suggests) there is little doubt that the transformative model of Liberalism rather than moving the conditions of politics forward, ends up descending to the terrain of Christian political theology that it never abandoned.

But is it even ‘transformative’ within the conditions of the Christian model that it allegedly secularized? Is the primacy on social justice on civil war truly a political theology, or rather the consequential triumph of theology over the institutionality to restrain the ballistic aspiration of social hegemony? Both questions collapse if tested on the grounds offered by Carl Schmitt regarding both political theology and the critique of moral neutralization of values as direct application of the principle of Justice, which would turn social relations into pure subjection, a form of Homo homini Radbruch (Rabruch referring to the Radbruch formula of an unjust of law as non-law, thus requiring principles) [3]. What is “just” to a hegemonic stance indicates a clear crisis of institutional deficiency in the face of what values determine the scope and content of the “Just”.

Similarly, the transformative conception of Rawlsian “activist liberalism” is closer to the realism of latent civil war than what the Christian idea required on a thing and minimalist basis; which, according to Ladner implied retreat form the social as well as from liturgical participation. On the contrary, rather than moral unity, reform entailed a separation, solus ad solum, in order to transform the habits and costumes without direct enforcement [4]. Contrary to the Christian monastic ius reformandi, Rawls’ renovation of political liberalism, vis-à-vis the civil war paradigm, accepted the hellish reality of the social by affirming “social justice” as the only real means for subjective social cohesion. And if the just war principle stood largely under the guidance of positive sovereign rules and commands; the deployment of justice of civil war will be based on the exertion of principles and higher content without end. The true efficacy of civil war alien to the concept of the political, made possible a regime of socialization on the mere basis of values stratification and moral abstraction.

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Notes 

1. John Rawls. “Moral Problems: Nations and War”, Spring 1969, Harvard University. Harvard U Library Archives. 

2. John Rawls. “On my religion”, in A brief inquiry into the meaning of sin and faith (Harvard U Press, 2009), 263.

3. Carl Schmitt. “Un jurista frente a sí mismo: entrevista de Fulco Lanchester a Carl Schmitt”, Carl-Schmitt-Studien, 1. Jg. 2017, 212.

4. Gerhart B. Ladner. The Idea of Reform: Its Impact on Christian Thought and Action (Harper Torchbooks, 1969), 322.

The End of the Constitution of the Earth. A review of Samuel Zeitlin’s edition of Tyranny of Values & Other Texts (Telos 2018), by Carl Schmitt. By Gerardo Muñoz.

Samuel Zeitlin’s edition of Tyranny of Values and Other Texts (Telos Press, 2018) fills an important gap in the English publication of Carl Schmitt’s work, in particular, as it relates to his lesser known essays written during the interwar period. This edition is still meant as an introduction to Schmitt’s political thought and it does not pretend to exhaust all the topics that preoccupied the Catholic jurist, such as the geopolitical transformations of the European legal order, the rise of economicism at a planetary scale, or the ruminations over the early modern theories of sovereignty and its defenders. Indeed, these essays sheds light on the complexity of a thinker as he was coming to terms with the weakening of the ius publicum europeum as the framework of European legality and legitimacy, and of which Schmitt understood himself to be the last concrete representative, as he repeatedly claims in Ex captivate salus.

As David Pan correctly observes in the Preface, the Schmitt that we encounter here is one that is confronting the transformations of political enmity in light of a gloomy and dangerous takeover of a global civil war. In fact, one could most definitely argue that the Schmitt thinking within the Cold War epochality is one that is painstakingly searching for a “Katechon”, that restraining force inherited from Christian theology in order to give form to the ruination of modern legal and political order. The global civil war, cloaked under a sense of acknowledged Humanism, now aimed at the destruction of the enemy social’s order and form of life. This thematizes the existential dilemma of a jurist who was conscious of the dark shadow floating over the efficacy of Western jurisprudence. In other words, the post-war Schmitt is one marked by a profound hamletian condition in the face of the technical neutralization of every effective political theology. This condition puts Schmitt on the defensive, rather than on the offensive, as his later replies to Erik Peterson, Hans Blumenberg, or Jacob Taubes render visible.

The essays in the collection can be divided in three different categories: those on particular political thinkers, some that reflect on political enmity and the concept of war, and two major pieces that deal directly with the crisis of nihilism in the wake of the Cold War (those two essays are “The Tyranny of Values” and “The Order of the World after the Second World War”). Zeitlin includes an early essay on Machiavelli (1927), a brief piece on Hobbes’ three hundred years anniversary (1951), a reflection on his own book Hamlet and Hecuba (1957), and a succinct note on J.J. Rousseau (1962). These are all not necessarily celebratory of each of these figures. Indeed, while in the piece on Hobbes Schmitt celebrates the author of Leviathan as a true political analyst of the English Civil War against Lockean contractualism; the piece on Machiavelli is a clear exposition of his loathe for the Florentine statesman. In fact, to the contemporary student of intellectual history these words might sound unjust: “[Machiavelli] was neither a great statesman nor a great theorist” (Schmitt 46). If politics is understood as the art of reserving an arcanum, as mystery of power against all forces of moral relativism and technical procedures, then, machiavellism’s endgame amounts to a mystified anti-machiavellinism that favors individual pathos over political decisionism. Machiavelli might have said “too much” about politics; and for Schmitt, this excess, points to the flawed human anthropology at the heart of his incapacity for thinking political unity (Schmitt 50).

If juxtaposed with the essay on Hobbes, it becomes clear that Schmitt’s anxiety against Machiavelli is also the result of the impossibility of extracting a Christian philosophy of history, which only the Leviathan was able to guarantee in the wake of a post-confessional world. Whereas Hobbes provided a political theology based on auctoritas, non veritas, facit legem, Machiavellism stood for an impolitical structure devoid of a concrete political kernel. In such light, the essay on Rousseau is astonishingly curious. For one thing, Schmitt paints a portrait of Rousseau that does not adequately fits the contours of a political theologian of Jacobinism. On the reverse side of this, Schmitt also avoids making the case for The Social Contract as a precursor of totalitarianism. Rather, following Julien Freund, Schmitt polishes a Rousseau that stands for limited freedom and equality; a sort of intra-katechon within Liberalism, and in this sense a mirror image of every potential Hegelianism for the unfolding of world history (Schmitt 173). Finally, the piece “What Have I done?”, a response to a critic of his Hamlet and Hecuba, is aimed not so much at the making of a “political Shakespeare”, but rather at shaking up both the “monopoly of dialectical materialist history of art” as well as the “well-rehearsed division of labor” of the university” (Schmitt 139-41). This is critique has not lost any of its relevance in our present.

Whereas the pieces on political thinkers is an exercise in reactroactive gazing on the tradition, the essays on political enmity and war are direct confrontations on the erosion of the European ius publicum europeum in the wake of the Cold War, dominated by the rise of international political entities (NATO, UN), and anticolonial movements of a new global order. It is in this context that Schmitt’s interest in the figure of the partisan begins to take shape as a way to come to terms with the new forms of mobility, irregularity, and changes in its territorial placement of the enemy. In “Dialogue on the Partisan”, Schmitt revises some of his major claims in Theory of the Partisan, while reminding that “the great error of the pacifists…was to claim that one need simply abolish warfare, then there would be peace” (Schmitt 182).The destitution of the ius publicum europeum, that oriented war making vis-a-vis the recognition of political enmity has, in fact, opened up for a de-contained partisanship in which the destiny of populations now was at the center. This new stage of political conflict intensifies the nihilism where potentially anyone is an enemy to be destroyed (Schmitt 194).

As Schmitt claims in the short piece “On the TV-Democracy”, the question becomes who will hold political power and to what extent, as techno-economical machination becomes the force that directly expresses the Goethean myth of nemo eontra deum nisi dens ipse. With the only difference that the mythic in the essence of technology has no political force, but mere force of mobilization of abstract identities and what Heidegger called “standing reserve”. In this new epoch, the human ceases to have a place on earth, not merely because his political persona cannot be defined, but rather because he can no longer identify himself as human (Schmitt 205). Schmitt’s sibylline maxim from poet Theodor Daubler, “The enemy is our question as Gestalt”, thus loses its capacity for orientation. Already in the 1940s, Schmitt is contemplating a crisis that he does not entirely resolve.

This is one way in which the important essay “The Forming of the French Spirit via the Legists”, from 1941, must be understood. This text on the one hand it is a remarkable sketch of French jurisprudence, grounded on “mesura”, “order”, “rationalism”, and sovereignty. It is no doubt an essay directed against royalist French intellectuals (Henri Massis and Charles Maurras are implicitly alluded to); but also at the concept of state sovereignty. Indeed, the most productive way to read this essay is next to The Leviathan in the State Theory of Thomas Hobbes (1938) written a couple of years prior. The impossibility of crafting a theory of the political in the wake of the exhaustion of the sovereign state form will eminently leave the doors wide open for a global civil war, as he argues in the post-war essay “Amnesty or the Force of Forgetting”. Schmitt’s defense of the a formation of the Reich in the 1940s will be translated in his general theory of a ‘new nomos of the earth’ immediately after the war.

The two most important pieces included in The Tyranny of Values and Other Texts (2018) are “The Tyranny of Values” (1960), and “The Order of the World after the Second World War”. The “actuality” of Schmitt’s political thought has a felicitous grounds on these essays, although by no account should we claim that they adjust themselves to the intensification of nihilism in our current moment. There is much to be said about the weight that Schmitt puts on the “economic question”, a certain pull that comes from the emphasis of the much debated question then concerning “development-underdevelopment”, which does not really capture the metastasis of value in the global form of the general principle of equivalence today. Schmitt also deserves credit in having captured in “The Tyranny of Values”, the ascent of the supremacy of “value” in relation to the philosophies of life (Schmitt 12). Schmitt quotes Heidegger’s analysis, for whom “value and the valuable become the positivistic ersatz for the metaphysical” (Schmitt 29), which we can have only intensified in the twenty-first century. Perhaps with the only difference that “value” is no longer articulated explicitly. But who can deny that identitarian discourse is a mere transposition of the tyranny of values? Who can negate that the cost-benefit analysis, “silent revolution of our times” as one of the most important constitutionalists has called it, now stands as the hegemonic form of contemporary technical rationality? [2].

At one point in the “Tyranny” essay, while commenting on Scheler’s philosophy, Schmitt says something that it has clearly not lost any of its legibility in our times: “Max Scheler, the great master of objective value theory has: the negation of a negation value is a positive value. That is mathematically clear, as a negative times a negative yields a positive. One can see from this that the binding of the thinking of value to its old value-free opposition is not so lightly to be dissolved. This sentence of Max Scheler’s allows evil to be requited with evil and in this way, to transform our earth into a hell, the hell however to be transform into a paradise of values” (Schmitt 38). It is a remarkable conclusion, and one in which the “mystery of evil” (the Pauline mysterium iniquitatis) becomes the primary function of the art of government in our times. It is here where we most clearly see the essence of the techno-political as the last reserve of legal liberalism. Schmitt would have been surprised (or perhaps not) to see that the disappearance of the rhetoric of values also coincides with a new regulation of disorder, whether it takes the name of “security”, “cost and benefits”, or “identity and diversification”. Indeed, now politics even has its own place in the consummation of the race for the “highest values”, since anything can be masked a “political” at the request of the latest demand.

In his 1962 conference “The Order of the World after the Second World War”, delivered in Madrid by invitation of his friend Manuel Fraga, Schmitt still is convinced that he can see through the interregnum. Let me quote him one last time: “I used the word nomos as a characteristic denomination for the concrete division and distribution of the earth. If you now ask me, in this sense of the term nomos, what is, today, the nomos of the earth, I can answer clearly : it is the division of the earth into industrially developed regions or less developed regions, joined with the immediate question of who accepts development f aidrom whom…This distribution is today the true constitution of the earth” (Schmitt 163). It is a sweeping claim, one that seeks to illuminate a specific opaque moment in history.

But I am not convinced that we can say the same thing today. Here I am in agreement with Galli and Williams, who have noted that the disappearance of a Zentralgebiet no longer solicits the force of the Katechon [3]. And it is the Katechon that guarantees an effective philosophy of history for the Christian eon. The Katechon provides for a juridical sense of order against a mere transposition of the theological. Indeed, it is never a matter of theological reduction, which is why Schmitt had to evoke Gentilis’ outcry: Silenti theologi, in munere alieno!  I guess the question really amounts to the following: can a constitution of the earth, even if holding potestas spiritualis, regulate the triumph of anomia and the unlimited? Do the bureaucrat and the technician have the last world over the legitimacy of the world? Here the gaze of the jurist turns blank and emits no answer. One only wonders where Schmitt would have looked for new strengths in seeking the revival of a constitution of the earth; or if this entails, once and for all, the closure of the political as we know it.

 

 

Notes

  1. Carl Schmitt. The Tyranny of Values and Other Texts, Translated by Samuel Garrett Zeitlit. New York: Telos Publishing Press, 2018.
  2. Cass Sunstein. The Cost Benefit Revolution. Massachusetts: MIT Press 2018.
  3. See Carlo Galli, “Schmitt and the Global Era”, in Janus’s Gaze: Essays on Carl Schmitt. Durham: Duke University Press, 2015, p.129. Also, Gareth Williams, “Decontainment: The Collapse of the Katechon and the End of Hegemony”, in The Anomie of the Earth (Duke University Press 2015), p.159-173.