In Cormac McCarthy´s The Crossing (pages 41-49, 1994 edition), the second book of his Border Trilogy, Billy Parham, concerned that after some travail all efforts to trap a shewolf have failed, goes down to Animas to see old Don Arnulfo, find out if he could buy a scent off him. Don Arnulfo, old and sick, sells him no scent but gives him some wisdom in Spanish. One suspects that there is a lot at stake in this conversation, if it is a conversation—that something like the very issue of “the border” or “the crossing” is at stake in it. Don Arnulfo calls himself a heretic (“Y por eso soy hereje”), and his caretaker says of him to Billy that he is a godless man and a brujo. Regardless, Don Arnulfo tells Billy words that Billy probably won’t be able to use for the hunt: “El lobo es una cosa incognoscible, he said. Lo que se tiene en la trampa no es mas que dientes y forro. El lobo propio no se puede conocer. Lobo o lo que sabe el lobo. Tan como preguntar lo que saben las piedras. Los arboles. El mundo.” At this point, Don Arnulfo’s argument splits into two lines of thought that I find significant, but that I do not know how to relate to each other.
According to the first line (first in order of enunciation, although it could be logically second), the wolf and God are linked through something man does not know, or not normally: “He said that men believe the blood of the slain to be of no consequence but that the wolf knows better. He said that the wolf is a being of great order and that it knows what men do not: that there is no order in the world save that which death has put there. Finally he said that if men drink the blood of God yet they do not understand the seriousness of what they do.” This is the line that seems to be connected with the only thing that could be taken by Billy in the way of advice for the hunt. Don Arnulfo, after Billy has already said vaya con Dios to him, tells him to “find that place where acts of God and those of man are of a piece. Where they cannot be distinguished.” Billy, with some perplexity, asks about the place. Don Arnulfo responds that it is not a place you find, rather a place you recognize when it presents itself. And “he said that it was at such places that God sits and conspires in the destruction of that which he has been at such pains to create.” This is of course Don Arnulfo’s disagreement with God: “Y por eso soy hereje. Por eso y nada más.”
The second line, I could argue, seems to link wolves, and the animal in general, God, and the ontico-ontological difference. In fact, it is probably one of the great renditions of the ontico-ontological difference in twentieth-century literature. It goes: “Men wish to be serious but they do not understand how to be so. Between their acts and their ceremonies lies the world and in this world the storms blow and the trees twist and all the animals that God has made go to and from yet this world men do not see. They see the acts of their own hands or they see that which they name and call out to one another but the world between is invisible to them.” Don Arnulfo, who is holding the boy’s arm all along, is telling him something important, but difficult. He is a lonely and sick old man whom nobody visits any more. He is telling Billy something precious to him. “The wolf is like the copo de nieve . . . You catch the snowflake but when you look in your hand you dont have it no more. Maybe you see this dechado. But before you can see it it is gone. If you want to see it you have to see it on its own ground. If you catch it you lose it. And where it goes there is no coming back from. Not even God can bring it back.” The intensity of Don Arnulfo’s words tunes up in the last set of words before the releasement of Billy’s hand: “Escúchame, joven, the old man wheezed. If you could breathe a breath so strong you could blow out the wolf. Like you blow out the copo. Like you blow out the fire from the candela. The wolf is made the way the world is made. You cannot touch the world. You cannot hold it in your hand for it is made of breath only.”
I would like to understand the connection of Don Arnulfo’s two lines of speech. I suspect they are connected to whatever it is McCarthy understands by “the border,” across which it is said at the beginning of The Crossing one can “miswander” in one’s life journey and find oneself as a result “beyond the wall of that antique gaze from whence there could be no way back forever.”
Notes on the Illegal Condition in the State of Extraction. Draft Presentation for Marginalia: The Borders of the Border. International American Studies Association, VIII World Congress, Texas A&M International, Laredo, Texas, 19-21 July, 2017. By Alberto Moreiras.
Glenn Greenwald, one of the journalists that helped Edward Snowden in his whistle-blowing tasks, titled his account of that story No Place to Hide. Edward Snowden, the NSA, and the US Surveillance State. The notion that we live in a surveillance state, that the state is surveillant today, that it thrives on information, that information is its currency and content, should not obscure the obvious corollary that information is us, and we are the referent of information. Think NSA, yes, but think also of Google and Facebook, of Twitter and Instagram, of your email, of your annual reviews, of your post-tenure reviews, of your citations or lack thereof, of what is going to happen to you if the Republicans manage to repeal Obamacare, and you find yourself trying to prove again and again that you are suffering from no preexisting condition, an impossible task of course, and of your potential need to surrender your iPhone and laptop, together with their passwords, to the competent or incompetent airport authorities. And this is just the beginning. We become information, we are nothing but information—we are quantified, and our bodies are now, insofar as the state is concerned, the primary site for information extraction and information use: information glorifies or abjects bodies. For a surveillance state the extraction of information becomes the primary modus operandi, and extraction, the task of extraction, develops, is developing, a logic of its own. Think about how weird it is that your mood may be so dependent on a given weekend on how many likes you received on the picture of your ailing cat with happy mother, ailing mother with happy cat. Or on whether you had more or less than, say, 40 visits to your latest blog entry. Or on the fact that nobody has retweeted your last five Twitter posts, even though you were as sincere as you could have been in them.
My thesis is that we have not yet figured out the implications of a primary or fundamental logic of state extraction. We have not figured out its implications for our own predicament—for the predicament, that is, not of state functionaries as such, not of extractors and surveyors, which is a predicament of domination, but the predicament of those who would rather not be dominated, and who understand than giving up on domination is the price to be paid. These latter figures, those who refuse domination, those who prefer not to be dominated, hence not to dominate, they might in fact constitute the “borders of the border,” that fantastic fringe territory of the human this conference has decided to thematize and, in some sense, to honor. Let me then reserve that theoretical position, the position of border or hyperborder dwellers, to develop what follows. I will claim that the border of the border is today the site where information will not be shared—an opaque site of silence and secrecy, a place of radical reticence concerning unconcealment.
Another recent book on these issues, Bernard Harcourt’s Exposed. Desire and Disobedience in the Digital Age, goes beyond the notion of a surveillance state to claim that we live today in what he calls an “expository society,” which is itself a function of the fact that the surveillance state thrives on a social desire for exposition, for so-called transparency, for exhibition and shameless publicity. If the expository society has come to replace earlier figures of late modernity—the disciplinary society, the control society, the securitarian society—, even while it retains most of the features of those earlier models, it is because exposition can encompass them all—for Harcourt, the triumph of the expository society is a dialectical triumph: it marks the moment in which the infinite desires of the population are successfully channeled by the state’s primary interests in information extraction: in fact, they are put at the very service of information extraction. Nobody forces us voluntarily to reveal everything we give away in an earnest Facebook discussion: but it will be used. With a caveat: the “state” in the expository society is not only the state of governance, the governing state, it is also the state of exchange, the economic state: we are all participants, willingly or not, and we are all exposed. Only infrapolitical or protopolitical life remains outside the expository society, to the precise extent that it does; only that in us which is infrapolitical or protopolitical escapes the state of surveillance. Which therefore merits some consideration.
What is it, in us, within us, that exceeds or sub-ceeds the position of participant, that is, the position of informant, which is the direct counterpart of the surveillance state, the surveillance economy, the surveillance or expository society? If there is surveillance, there are informants, willing or unwilling, or both. No surveillance without informants, no informants without surveillance. But what is, specifically, an informant? If we are all informants, how are we so? We might want to start developing this question through a minimal phenomenology of the informant—I say “minimal” because it will be unsatisfying, and there would be much more to bring up about this. I think it will be useful to develop this minimal phenomenology of the informant in connection with the phenomenology of evil developed by Immanuel Kant in his book Religion Within the Limits of Reason Alone. Please bear with me: my interest is not to denounce as evil any and every informant, that is, any and every denizen of our expository society. Yes, that would enable us perhaps better to reserve the place of goodness for that theoretical position of the hyperborder dweller, always a temptation, always a moralistic temptation. But it would also be simplistic and plain wrong. It is not a matter of good versus evil—it is more a matter of how to isolate a kernel in the human that is resistant to the demands and satisfactions of expository life, and from which, therefore, it could perhaps be possible to preserve the promise of another present, hence of another future.
Let me start by proposing that evil is for Kant in every case “illegal,” to the very extent that it is always outside the law, outside the moral or unconditioned law. The subject of evil is in every case a subject to evil: “We call a man evil . . . not because he performs actions that are evil (contrary to law) but because these actions are of such a nature that we may infer from them the presence in him of evil maxims” (Kant 16). The evil may rise out of or in connection with so-called “propensities,” of which Kant selects three, linked to “predispositions” defined as “elements in the fixed character and destiny of man” (21). The latter are, 1), the predisposition to animality; 2), the predisposition to humanity; and, 3), the predisposition to personality. The first one can be grafted with so-called “beastly vices” (22), which are in every case the vices of a “purely mechanical self-love” (22), namely, “gluttony,” “lasciviousness,” “drunkenness,” and other. A propensity for “frailty” (24), where inclination is stronger than the heart, explains this first form of evil, which we may call beastly evil. The second one—the predisposition to rational humanity, which means that we all want “to acquire worth in the opinion of others” (22)—can be corrupted through “wickedness” (24) into “jealousy” and “rivalry,” and it gives rise to “diabolical” evil (22), as in “envy, ingratitude, spitefulness.” And the third one, the predisposition to personality, is probably the most interesting one: here there is an almost insurmountable and undecidable impurity that, at the limit, keeps us from deciding whether any of our actions can be properly registered as a free action, solely conditioned by the moral law, which is the law of freedom. The propensity here, which is to act as if we were acting morally, is radical evil, to the extent that it distorts the moral principle by overdetermining it with intentions that do not themselves conform to duty: pathological “vices concealed under the appearance of virtue” (29).
This is probably enough Kant for our purposes at this point. Three kinds of evil: beastly, diabolical, and radical. How do we map these different forms of evil onto a (minimal) phenomenology of the informant? Let us take, for instance, the example given to us by Salvadoran journalist Oscar Martínez in his A History of Violence. He will tell us the story of a fellow called Abeja, an informant. He prefaces it by saying:
Without these murderers, hundreds more murderers would be walking the streets. Without these rapists, hundreds more rapists would be stalking the nights. The plea-bargain witness: criminals the state pardons in exchange for their testimony. Their lives in grave peril, many of these women are battling the most dangerous gangs of the continent. Nobody but the state backs them up, and often the state becomes their enemy. (Martínez 109)
This requires some explanation: a gang member, himself or herself having indulged in criminal activity many times, gets arrested and plea-bargains with the Salvadoran state to become a witness against other gang members. It is his or her way out of permanent jail time, but at the same time he or she risks becoming a target for the gangs themselves. If there is anything like a witness protection program in El Salvador, it is haphazard, thoroughly precarious, incompetent, and certainly never to be taken for granted or relied upon. These gangbangers, Abeja for instance, are taking their lives into their own hands. They have become informants. God knows, they will die for it, sooner or later, and sooner rather than later. How do we understand that? Coercion may be an explanation: they do not have a choice, the police have threatened to kill them unless they cooperate (in truth, given the state of affairs in El Salvador and other Central American countries, if there is successful prosecution of gang crimes, which happens rarely, it is usually through plea-bargain witnesses, not through proper police investigations) or to leak that they are traitors and give them no protection, expose them; so our gangbanger, take Abeja, must comply and hope for the best, which can be some additional days or weeks or months of life. This is mere opportunism—it does not rise to the level of evil behavior but it is not necessarily moral behavior either. An informant has accepted to become an informant. At the moment, we cannot know what kind of an informant he or she is—just an undifferentiated one, like most of us in the surveillance state.
But Martínez, in his story entitled “The Most Miserable of Traitors,” does not speak of coercion. He says: “In late 2011, Abeja, a twenty-something-year-old kid, sat in front of prosecutors from Chalatenango and, for an undisclosed reason, admitted to being a member of the Fulton Locos Salvatrucha. He said that his clique dedicated itself to extortion, murder, and drug trafficking in the states of San Miguel, Santa Ana, Sonsonate and Chalatenango. He told them many secrets, secrets that spanned sixty-three typed pages” (113-14). This was not a trivial case, since Abeja’s testimony could be decisive for the Salvadoran state’s prosecution of José Misael “Medio Millón” Cisneros, one of the top Mara Salvatrucha leaders deemed to be “the mastermind behind the country’s cocaine exports” (112). The Salvadoran police imprisoned him in the tiny municipal police station of Agua Caliente and had him there for fifteen months of quasi-starvation and neglect, until Abeja decided to escape the prison and forfeit his plea-bargain witness status. No wonder. As Martínez put it, “Plea-bargain witnesses, especially former gang members, have to deal with the fact that their cliques have committed many crimes against the police. In other words, their guardians will often have a profound hate for them. Sometimes they’re even forced to testify about the complicity of the police. Abeja did exactly that in Medio Millón’s trial” (119).
We should not feel too sympathetic for the police or indeed for the witness. They are all bad, most of them anyway, or indifferently so. They simply fulfill their roles: some are police, some are gangbangers. Israel Ticas, “the only forensic investigator in all of El Salvador” (117), appreciates the importance of the gangbangers turned witnesses, since they enable him to find and exhume bodies that would otherwise remain disappeared. But Ticas also tells us that the witnesses are not devils turned angels. When Martínez asks him whether the witnesses feel sorry for their actions, Ticas says: “No. They’re totally calm. I admire that about those fuckers. They’re not even embarrassed” (118). And Ticas continues: “One time I pulled out a boy about five years old and a girl about eight. The witness said they promised the girl that they wouldn’t kill her little brother if she let herself be raped by fifteen men. They raped her and killed them both. It was in Ateos, in 2006. I found the two bodies hugging” (118).
The informants are participants in what they inform about. Their information is testimonial. They speak up, risking their lives, but not because they are embarrassed about what they did, or others did. The reason for their informing, as Martínez puts it, remains “undisclosed” (113). We do not know, we cannot know. Is the informant himself or herself a subject of radical evil, diabolical evil, beastly evil? Or is the informant, to the contrary, after all a subject to the surveillance state, to the state of extraction, fulfilling the moral law, the unconditioned law, the categorical imperative? Under what conditions is it fair to say that the informant is, in fact, in truth, doing the right thing? Does it matter?
For the surveillance state, it does not. Undifferentiated informants are good enough, since only the information as such matters. That is why the state has no compunctions at the level of extracting it from anybody. Some of you may have felt as initially perplexed as I did just a few days ago reading in the New York Times an article about how the Mexican state very likely “targeted with sophisticated surveillance technology sold to the Mexican government to spy on criminals and terrorists” a team of international investigators appointed by the Inter-American Commission on Human Rights to investigate the forced disappearance of the 43 students in Ayotzinapa in September 2014. This happened a few weeks before the investigators published their final report, but after the Mexican authorities had become aware that the commissions’ report rejected the government’s version of what had happened. According to the Times, the investigators, all of them endowed with diplomatic immunity but still targets of the cyberweapon known as Pegasus, which renders all anti-surveillance encryption useless in smartphones at the same time it turns the same smartphones—through their microphones and cameras—into surveillance tools against their owners, had complained that the Mexican “government essentially obstructed their inquiry and then cast them out by refusing to extend their mandate.” At the same time, “an investigation by The New York Times and forensic cyberanalysts in recent weeks determined that the software had been used against some of the country’s most influential academics, lawyers, journalists and their family members, including a teenage boy.” Surveillance runs amok, in excess of every law, in excess of every legal justification, just because it can. The surveillance state is itself a state in the “illegal” condition, certainly in the Kantian sense.
So perhaps we should alter the question and ask, not about varieties of evil in the informant himself or herself, but about varieties of evil in the surveillance state. Is it not the state of extraction the one who, through their many agents, indulges in antimoral behavior, in evil behavior, in illegal behavior? Would the surveillance state be a state of beastly evil, diabolical evil, or radical evil? Is the extraction of information a symptom of the frailty of the state, of the wickedness of the state, or of the impurity of the state? Or is the state, de facto, following its own merely opportunistic drive to do all it can do in its effort to fulfill its own mandate so as better to protect its citizens? Or, rather than taking advantage of an opportunity, is the surveillance state obliged to fulfill state to the most extreme possibility in the deployment of its own logic understood as categorically imperative? Is the surveillance state in fact, for the most part, and in general, a moral state?
Let me invoke one more example, this time Roberto Rangel’s testimonio, edited and published by Ana Luisa Calvillo and entitled Me decían mexicano frijolero (2015). Me decían mexicano frijolero could in fact be a place where to identify the primary features of a degree-zero informant—that is, within the phenomenology of the informant, an undifferentiated, unwilling informant who could not be subject to any moral judgment either to adjudicate evil or goodness. Roberto Rangel would have or be entitled to the atrocious honor of configuring the most extreme type of informant, the informant who informs against his will, against his life, against his libidinal satisfaction, against anything that could be considered an aspect of his happiness; a slave informant, or informant slave, whose performance follows a deconstituent imperative. Rangel is told “inform, it is your law, you signed a contract, you have no option, and if you fail to do it we will gut your girlfriends, we would kill your children, and then we would get rid of you; after torturing you.” Rangel does not have a life, although he seeks it. But it has been stolen. He knows he is serving rogues, he knows that the system surrounding him also serves those rogues, he has no resources, and the miracle is always the miracle of a precarious survival, after he fails as informant, in jail for fifty seven years for an imagined murder, fifty seven fake years, because Rangel cannot count, cannot serve, cannot be, or he can be only cannon fodder, that is, someone doomed just because, nothing else would be consistent, truth and justice are not part of the procedure. Only derision, only monumental mockery.
Sadistic mockery comes from the police officer than runs him as an informant and turns him into a sexual slave and humiliates and degrades him in every visit, the police officer that calls him “mexicano frijolero” at the moment of rape and makes him eat meat that has been spitted on the floor because beaner Mexicans who think they can come to the United States and expect to eat meat deserve nothing else. They are themselves meat, usable sexually or economically, usable for extraction, but beyond that they are nothing. They are only transcripts, screens for the deployment of a predatory drive that is ultimately owned by the surveillance state, the corps of police, all the corps of police, all the force of the state. Roberto Rangel falls into a machine for crushing bodies and spirits, after information has been extracted from them, whatever meager information they are able to provide, and he will not get out of it. Paradoxically, only jail brings on a certain measure of peace, and the possibility of learning how to read, learning how to write, how to give a testimonio that nobody will ever be able to believe, not really, it is probably a fiction, one cannot give it proper credit lest one enters the psychotic night: it is not just Officer Rivas or María from Immigration Services, it is also all the other agents who must disbelieve every word from Rangel, and also the lawyer, the state attorney, the judge, no one can stick to the testimonio, to Rangel’s simple word, but what simple word, everything is a lie, it has to be, the truth of Rangel’s story can only show itself through its own impossibility, which means it never will, it does not. It is the psychotic night. From its depth—but it is the depth of the state of extraction, of the surveillance state—Rangel hears that he is a bitch, nothing but a bitch, I will make you my bitch, you will become a bitch, I will give you proper existence as a bitch, your being must match your worth, your name is the name of a bitch, proper name, mexicano frijolero, suck my cock or I will gut your son. This was Rangel’s testimonio, as told to Ana Luisa Calvillo.
Is that so different from our current US president demanding from Peña Nieto to pay for the wall, pay for my wall, I know it is absurd but you must, or you will suffer the consequences, you have no option, and if you fail to comply I will gut your children, I will kill your girlfriends, I will make you my bitch, you already are my bitch: this is also the psychotic night in international politics, of which Kant would have spoken many years ago when he mentioned “the international situation, where civilized nations stand towards each other in the relation obtaining in the barbarous state of nature (a state of continuous readiness for war), a state, moreover, from which they have taken fixedly into their heads never to depart. We then become aware of the fundamental principles of the great societies called states—principles which flatly contradict their public pronouncements but can never be laid aside, and which no philosopher has yet been able to bring into agreement with morality” (29).
The surveillance state can and will always function in view of the maximization of its own libidinal cathexes, its own libidinal release, and its agents will take opportunistic advantage of it every time. This is the impurity of the state, of every state, its ongoing and ceaseless radical evil, which matches or mimics that of Officer Rivas, the Fresno, California, detective who has or can purchase the trust of his people, of the Drug Enforcement Administration, of the California Highway Patrol, of the district attorney, of the lawyers, the judges. Frankly, after all, Officer Rivas can access all the cocaine in the world, and the money, which is the reason he uses informants.
There are other kinds of informants. We could appeal to the fictional example of Butcher’s Boy, the protagonist of Thomas Perry’s The Informant, who informs a Justice Department agent because that information serves his own interests, his own calculations, his cold plan for revenge, or perhaps not revenge, just caution, those fellows should be in jail or dead as far as I am concerned. He, Butcher’s Boy, is an assassin, a cool one, but he still cannot assassinate everyone, there are too many of them, so he helps himself, as an assassin, by becoming an informant, through calculation: this type is of course the radical informant, or the radical evil informant, since his informing actions do denounce criminals who deserve it but for opportunistic and immoral reasons. In Officer Rivas’s case, his informant was the site of diabolical evil, not as agent but as patient. Butcher’s Boy is an agent of radical evil.
There is a moment in Don Winslow’s recently published novel, The Force, when the protagonist, Denny Malone, a very reluctant informer who is forced to betray his friends, becomes a different kind of informer. We can imagine a serious informant, a professional informant, the informant who informs out of duty, the informant who accepts a life of risk and constant betrayal, a life lived in infinite distance, because there is a law that must be fulfilled, a law that must be made fulfilled, so that to become an informant means to affirm freedom, to be totally within the law, hence totally free, no matter the price. This would be the moral informant, the radical opposite of Roberto Rangel’s, a full-degree informant, perhaps the type that Robert Mazur’s The Infiltrator presents or would like to present if we could take it at face value—the perfectly professional, the perfectly non-pathological actions of an undercover police officer who accepts to befriend and then betray any number of people at the service of the law. So we would have three primary types of informants, the zero-degree informant, Roberto Rangel, the undercover officer serving the true interests of the law, Robert Mazur maybe, full-degree informer, moral informer, and the radical-evil informant represented by Butcher’s Boy in Thomas Perry’s novel. This is to say that a typology or phenomenology of the informant can absorb the Kantian analysis of varieties of evil: there is diabolical evil, there is radical evil, and there is moral freedom, and perhaps all kinds of beastly evil in between. And there is nothing else.
But it is still a very precarious typology that settles nothing. We know little, we can only imagine, about those “undisclosed” reasons that marked Abeja’s intentions, for instance. Why should one become an informant? Why should one give his or her life over to the machinations of an extractive state? Why should one do it, really? Or in the best of cases, when one is not bound by duty, like the undercover officer, when one is not bound by diabolical wickedness, like it is the case for Roberto Rangel, and when one is not coerced by opportunistic calculations having to do with self-interest? Why is it the case that most informants in the surveillance state, or Facebook users, you yourself, for instance, give freely of their own bodies through a production of jouissance that, as we know, is far from being always pleasant? Perhaps because we want something back: the informant, any informant, is always in the position of Tobias, Tobit’s son, the youth whose angel fled and who spent the rest of his life, until he died at 107 years of age, missing him, awaiting his return. It is perhaps not possible to live without an angel, or we can only do so in nostalgia for the angel. For Rangel the angel is perhaps the son he has never met and he will never meet, the second daughter of his other girlfriend he also loses, the children that come and go and from whom he cannot expect any returns, no longer, and then, if no longer, then when? Rangel wants to cross the border, wants to return after his deportation, he has a son, he wants to be received by his son, and he falls into the hands of a diabolical police force. Without proper papers, he becomes a slave, soon addicted to his very slavery, and he loses his very capacity to inform, since it requires a distance that is now lost.
One would think we are lost in the illegal condition, outside the law that is the law of freedom. One would think that the surveillance state has no respect for freedom’s law. Informants—the subjects of the surveillance state are all informants, that is what they are, what we are, willing or unwilling, some of them innocent enough, some of them mired in the evil they are or are not embarrassed about—informants cannot make a claim to freedom, unless they find themselves in the improbable predicament of informing on the side of the categorical imperative, informing as a function of a universalizable maxim of behavior. Or, on the contrary, we might ask, is it, could it be, that, since the state is the only constituted authority, it is only being and becoming an informant to the state that will give us our freedom? Informing defines, in fact, our very legitimacy as citizens, even if we were to be informing an illegal state, whose illegality would not be our responsibility. Could it be that, today, the categorical imperative is best served by informing on ourselves and others as well we might, unconditionally, for the sake of coming into the law, for the sake of abandoning the abjection of the illegal condition? It is not less Facebook that we need, it is more Facebook, more sincerity, more exposure, more confession, and, yes, we should encourage university authorities to read all our emails, until, finally, we would have said it all, there would be nothing left to say.
I want to finish. I said at the beginning of this talk that I could think of a place, the border of the border, where information would not have to be shared, where language and politics would not come together under the form of the imperative to inform, an opaque site of silence and secrecy, a place of radical reticence concerning unconcealment. I also indicated that such a place, if it exists at all, would be protopolitical or infrapolitical, it would be directly outside politics, outside the expository society, in exodus from the state of extraction, the state of surveillance. It is time for me to take that up in a more explicit way, and I will attempt to do it by honoring the late Werner Hamacher, who died only a few weeks ago. My interest is on one particular aspect of Hamacher’s very rich 2014 essay “On the Right to Have Rights,” to which I will have to refer rather expeditiously for reasons of time.
Let us assume that the right to secrecy, which in the North American tradition, following US Supreme Court decisions, is frequently referred to as the right to privacy, is a human right. The surveillance state demonstrates once again what Hamacher, following Hannah Arendt’s famous analysis in The Origins of Totalitarianism, says about the state in general: “it is left to the ‘good will,’ and that is to say to political opportunism and, more precisely, to property, security, and private interests masquerading as interests of the state, to either adopt human rights as the measure of political decisions or to reject them altogether: human rights themselves could always legitimate any of their arbitrary manipulations” (Hamacher 183). The universalization of the surveillance state, however, immediately means that there is no room for the right to secrecy. To be deprived of the right to privacy is to be deprived of a human right that is also a citizen right. Once this process starts, Arendt says and Hamacher agrees, the human will be produced as “structurally worldless” (184), the human being will have become, from the perspective of the state, a hyperborder dweller, naked life as such.
Arendt’s postulate of a “right to have rights,” as is well known, is the demand of a right to politics, that is, a right to regulate human and public life through language, not violence. But the right to politics, which points to public life, is only the mirror side of the right to secrecy, the right to a private life. If the right to politics, as Arendt says, can be experienced only through its loss, the same is the case for the right to secrecy: the right to secrecy is the secret right to have rights, which the opportunism of the surveillance state will want to take away. Let me then propose that the right to secrecy is the same as the right to politics. Hamacher says that this right that grounds all rights and can only be perceived in its very loss is a “protopolitical right” (191), that is, a condition of politics, the very possibility of political determinability and determination. This, in Hamacher’s words, is what takes place when the right to politics/secrecy, which is the right to rights, is lost at the hands of a rogue state (or of a rogue institution):
Politics [is] not anymore a lingual process of searching for a common form of life but instead the mere form of the self-reproduction of an established procedural schema that must have negated its provenance out of linguistic processes of deliberation, reduced language to acts of judgment, and eliminated its political relevance. If the polis—as Arendt assumes with Aristotle—was ever the place, free of definition, of the being-human in the sense of the speaking-being, politics became the procedure of grasping precisely this being as an already-spoken- and decided-being, as a fact and a fate, and the procedure for immobilizing its generative, redefining, and indefinite movement. Human existence is henceforth not anymore graspable as an a priori partaking in a political world through language but instead only as an existence at the threshold of politics (193-94).
But an existence at the threshold of politics, even before it becomes understandable as a protopolitical existence, is an infrapolitical existence. Hamacher talks about it as an existence constituted by “a law without right” (197), “unqualified, mere existence” (197). Hamacher’s extraordinary conclusion follows:
The language of those who have no world can only be the language of the liberation of a world that is other than the world from which they were exiled: it can only be a language for such a world that is not meant, intended, and defined through intentions; not an already known world that is appropriated in its knowledge but rather a world released from aims and securities, a world let free by anyone who relates to it, and only for this reason, it is absolutely a world—free from all concepts of the world. (203)
The protopolitical position is indeed, for Hamacher, the beginning of another politics, a new beginning, but a beginning “that cannot be traced back to any other and that can be surpassed by none, since it is a beginning merely for further beginnings and is offered to them without commanding them. The beginning of language and law in the claim is an arché an-arché” (204). An an-archic beginning, a new politics after the destruction of politics that is the general consequence of the consummation of the state into a state of extraction—such is, maybe, the promise of protopolitics. In the temporal gap of the promise, neither believing nor disbelieving it, dwells infrapolitics.
Texas A&M University
Ahmed, Azam. “Spyware Trailed Investigators in Mexico.” New York Times, July 10
Arendt, Hannah. The Origins of Totalitarianism. New York: Schocken, 2004.
Calvillo, Ana Luisa. Me decían mexicano frijolero. (El caso Rangel) . Mexico: Ficticia,
Greenwald, Glenn. No Place to Hide. Edward Snowden, the NSA, and the US
Surveillance State. New York: Picador, 2014.
Hamacher, Werner. “On the Right to Have Rights.” CR: The New Centennial Review
14.2 (2014): 169-214.
Harcourt, Bernard. Exposed. Desire and Disobedience in the Digital Age.
Cambridge: Harvard UP, 2015.
Kant, Immanuel. Religion Within the Limits of Reason Alone. Theodore Greene and
Hoyt H. Hudson transl. and eds. New York: Harper One, 2008.
Martínez, Oscar. A History of Violence. Living and Dying in Central America.
London: Verso, 2016.
Mastrogiovanni, Federico. La desaparición forzada en México como estrategia de
terror. Mexico: Penguin Random House, 2016.
Mazur, Robert. The Infiltrator. The True Story of One Man Against the Biggest Drug
Cartel in History. New York: Back Bay, 2016.
Perry, Thomas. The Informant. Butcher’s Boy, Book 3. New York: Mariner, 2012.
Winslow, Don. The Force. New York: Harper Collins, 2017.
 Re “forced disappearance” in Mexico, including important consideration on the Ayotzinapa events, see Federico Mastrogiovanni.
 Hamacher refers of course to the chapter in Origins entitled “The Decline of the Nation-State and the End of the Rights of Man.”
Mobbing is an example par excellence of what is meant by infrapolitics: something that sub-ceeds politics proper, something that can never reach the threshold and must remain unavowable, for good or bad. In this case, for bad. The article below by Eve Seguin is one of the best I have ever read on academic mobbing–and there was a time in my life in which I read everything I could find on it. It is frighteningly precise and accurate, and therefore it serves an important purpose: those who read it will have no way of avoiding the recognition of the phenomenon when they see it, and will be confronted with a need to take a position. Infrapolitics will then press the line of the political, and will expose people to what they really are, inescapably. Why is it that the university is one of the places where friendship is harder to come by, where relationships of many years are constantly subject to betrayal, where, literally, one can never be sure things are what they are supposed to be? The article by Seguin helps understand why. And it may help people understand what is happening or may happen to them if they happen to confront the powers that be–not the deans, not the chair, not the provost: just the everyday hegemony of any given academic situation–in just the wrong way.
Lo que voy leer es una versión simplificada de un trabajo en curso sobre la legitimidad del estado administrativo. Esto forma parte de un proyecto mucho amplio sobre poshegemonía y constitucionalismo. Para atenerme al límite de tiempo acordado de las intervenciones, he intentado resumir mi intervención en siete elementos muy precisos. Así que por razones de tiempo no podré reconstruir varios contextos históricos y elaborar casos jurídicos, pero estoy dispuesto a aclarar cualquier duda durante el tiempo de la discusión.
I. El sombrero de Molotov. Permítanme comenzar con una imagen. En realidad, ésta proviene de la correspondencia entre Carl Schmitt y Alexandre Kojeve en 1955. En una carta fechada en Noviembre, este último le hace una confesion al gran jurista alemán: “Yo soy optimista en el futuro, y para probarlo tengo el símbolo del sombrero de cowboy de Molotov”. Como sabemos, en este intercambio Schmitt y Kojeve polemizaban sobre el futuro del orden mundial y el fin de la forma estado después de la segunda guerra mundial. Schmitt le confiesa a Kojeve no estar de acuerdo en abosluto con el pronóstico hegeliano. Era obvio que con esa imagen de Molotov con sombrero se cowboy en Wyoming, Kojeve aludía al fin de la historia, tras la cual solo quedaría la administración planetaria. Un mundo entregado al domingo feliz de la técnica en manos de los expertos. Desde luego, esto es una pesadilla para Schmitt, quien incluso en su obra tardía, como ha mostrado José Luis Villacañas en recientemente (ver su “Schmitt, Epimeteo Cristiano”), nunca dejó de exigir la figura del enemigo como acceso mismo al derecho en el ius publicum europeum. Leído desde la actualidad, ¿quién tuvo la razón? Mi hipotesis es que si partimos de la premisa del estado administrativo, ha sido Kojeve quien más se acerca a nuestros tiempos, aunque paradojicamente, desde las premisas de Schmitt. Dicho de otra manera, si bien nunca se reconfiguró un espacio geopolítico bajo el signo de un “Imperio Latino” capaz de contener la stasis o la guerra civil, si hemos experimentado la permanencia del derecho en la administración. Aunque hay otra dimension paradójica: esto ocurrió no desde la supremacía del derecho como aventura del genio (así define Schmitt la vocación del jurista en Ex captivate salus), sino desde el nuevo principado del estado administrativo.
II. Liberalismo contra administración . Es curioso el silencio que guardan los juristas y pensadores liberales sobre el ascenso del estado administrativo y su fuerza en el derecho público. Aquí puedo formular otras de las premisas que animan este trabajo. Y es que solo confrontando el estado administrativo hoy, podemos realmente escapar el impasse que caracteriza el estado residual del liberalismo. Me gustaría anotar al menos tres elementos que son síntomas compensatorios de ese silencio sobre el estado administrativo: 1. La tiranofobia, o el miedo excesivo sobre un supuesto presidencialismo imperial. Los constitucionalistas Eric Posner y Adrian Vermuele han notado la manera en que para asumir la autonomía del tirano hay que pasar por alto las constricciones del poder ejecutivo en cuanto exceso burocrático que dado su expansión, se autoimpone límites a su capacidad unitaria. 2. La melancolía por el centralismo jurídico es otra forma en que el liberalismo lamenta la pérdida de autoridad de las cortes como motor de cambio social, ya sea de conservacion o de cambio. 3. También, diría que el populismo ambivalente del trumpismo sintomatiza este impasse liberal en la forma misma de gobernar. ¿Cuáles son las dos fuerzas irreducibles a la unidad en este momento presidencial? Son dos las ambiciones encontradas: por un lado el ímpetu de deconstruir el estado administrativo y por otro lado la convicción por ejecutar políticas proteccionistas a las tarifas con el propósito de equilibrar las fuerzas del comercio transnacional.
III. ¿Arcano burocrático? A veces se equipara el estado administrativo con algunas de esus funciones, como la estructura regulatoria, la burocracia de estado, o sus mandarines intelectuales, como les llama Antonio Valdecantos. Pero el estado administrativo es mucho más que la burocracia de estado o la regulación. Al fin de cuentas, el estado administrativo puede deregular en algún determinado momento de su gestión. La unidad central del estado administrativo es la agencia. Y una agencia se define en función de una nueva comprensión de la división de poderes. Otra manera de definirlo es mostrando su evolución histórica que desplaza el “reino del derecho” hacia su abnegación. Este ha sido un proceso voluntario de renuncia de la autoridad jurídica a la funcionalidad de la agencia. En otras palabras, el estado administrativo responde a un desarrollo interno de la common law en la tradición anglosajona. Esto causa alarmismos y pulsión de traición, ya que si recardamos el elogio que Tocqueville hacia de los Estados Unidos en su clásico Democracia en América, este radicaba en la ausencia del “despotismo burocrático “. Fue lo mismo que celebró otro gran observador europeo, James Bryce, en The American Commonwealth (1885). Pero a veces ni los mejores pensadores políticos están en condiciones de imaginar las trampas del futuro. Desde entonces, solo hemos visto la expansión ilimitada de la autoridad administrativa. En 1938, James Landis, decano de la Harvard Law School, registraba unas 12 agencias federales. Hoy se registran entre 250 y 456. La historia de la abnegación recorre las tres funciones del poder: pensemos en la creación de la Comisión Interestatal del Comercio que delegó la rama del poder regulatorio; o la opinion Crownwell vs. Benson (1937) que delegó el poder legislativo; o más recientemente la opinión Chevron (1984) que delegó el poder interpretativo y judicial sobre la ambiguedad estatuaria. El hecho mismo de que hablemos de un proceso histórico que recorre todo un siglo, evidencia que el proceso del estado administrativo es también su historia.
IV. Ataque a la legitimidad. ¿Pero es legítimo el estado administrativo? Esa es la gran pregunta, puesto que la creación de agencias federales ha significado la transformación de la división de poderes y la continua desintegración de las tres ramas del poder. En el último año se ha vuelto famosa, al punto de convertirse en headline, la sentencia de Steve Bannon “deconstruir el estado administrativo”. Pero eso solo implica el deseo neoliberal de ‘deregular’. Hay otros enemigos del estado admnistrativo intelectualmente mucho más coherentes, pues cuestionan la legitimidad misma del derecho administrativo. Para dar cuenta de este giro en el debate constitucional norteamericano, quisiera pasar ahora al constitucionalista Philip Hamburger, profesor de la escuela de derecho de Columbia University, quien ha escrito un libro titulado Is administrative law unlawful? (2016). Más recientemente, ha publicado otro titulado The Administrative threat (2017). Lo importante de Hamburger es que ya no cuestiona el estado administrativo a partir de su eficiencia o ineficiencia macroeconómica, sino que cuestiona la raiz misma de su legitimidad. He desarrollado esto en otro ensayo, de modo que aquí solo puedo tan solo resumir las tres premisas de Hamburger contra el estado administrativo. a. El estado administrativo supone un nuevo abolustimo monárquico, ya que el poder ejecutivo de las agencias asciende al unitarismo. La función de delegación por adjudicación judicial consolida su voluntad. Para Hamburger esto es un calco de la monarquía de James I, quien empleó toda una serie de perrogativas para impulsar sus decisiones ejecutivas a través de súbditos. Aunque ahora es peor, ya que ni existen jueces como Edward Cooke para detener la expansión delegativa. b. El absolutismo atenta contra la división de poderes, ya que a lo largo de la evolución del estado administrativo, la agencia ha cobrado más y más autonomía en las tres ramas. El caso central es Chevron (1984), cuya opinión de la Corte Suprema generó el principio de auto-interpretación de la ambigüedad estatuaria. Este es llamado el principio de deferencia. En otras palabras, ahora las agencias están en condiciones de juzgar normativamente interpretaciones en la medida en que 1. el Congreso no tenga una opinión normativa sobre el propósito concreto, y 2. haya cualquier elemento ambiguo en el estatuto. Así, las agencias ahora pueden ejecutar, legislar, e interpretar. c. Finalmente, para Hamburger habría una disputa histórica entre el estado adminstrativo y los derechos civiles. La premisa es que la agencia siempre habla en función del derecho público por encima de derechos individuales. Hamburger demuestra el desencuentro entre las burocracias (al menos desde la presidencia de Woodrow Wilson) con las luchas de los movimientos sociales.
V. Legitimidad y abnegación. Pero, ¿habría que aceptar las premisas libertarias de Hamburger? No. No puedo desplayarme sobre la importancia del libro reciente Law’s abnegation (2016), de Adrian Vermuele, quien ha disputado los argumentos de Hamburger a la misma vez que ha desarrollado una nueva forma de pensar la legitimidad de la administración. Habría que decir que no hay absolutismo, porque no hay principio de delegación subdelegada, en supuesta violación de la delegata potestas non potest delegari. Tampoco hay violación de la división de poderes, ya que hay equilibrios y finalidades pluralistas en las agencias. Solo si tenemos una concepcion idólatra u originalista de la división de poderes se podría concluir esto. Pero la división de poderes no tiene porque regirse en un arcano originario. José se Luis Villacañas ha llevado esto a umbrales muy relevantes en su Teología Política Imperial (2016). Contra ese fetiche arcaico de la division de poderes, James Landis en The Administrative Process (1938), criticaba con cierta vehemencia lo que él llamaba el fetichismo con el número tres. Y esto indicaba la crisis del pensamiento político como arcano.
Sobre la última premisa de Hamburger: ¿existe realmente un desencuentro entre burocracia y derechos civiles? Esto implica una disputa desde los debates historiográficos. Pero al margen de esto, lo más importante es que no parece ser muy razonable pensar que incluso cuando pudieramos mágicamente revertir el estado administraitvo, estaríamos en camino a una necesaria expansión de los derechos. El problema es otro. Y esto es algo que reconoce tanto Hamburger (desde la derecha libertaria) como Bruce Ackerman (de la izquierda progresita): estamos ante el ocaso del centralismo de las cortes como motor de cambios de régimenes constitucionales. Por eso me parece que hay cierto cinismo por parte del liberalismo actual que actúa como si nada pasara, silenciando la incomodidad que prudece el estado administrativo. El paradigma de Ronald Dworkin que insiste en el imperio del derecho desde las cortes, y que tiene al juez como principe, es hoy una quimera sin fundamento en la realidad. El imperio ha dado lugar a la universalidad de la administración. Aunque en cuanto proceso de abnegación integral, los jueces han cedido su poder hacia formas plurales de racionalizacion. Quizás como los antiguos dioses que en algún momento se escondieron y le dejaron al hombre la potencia de la técnica, el derecho ya no esta en manos de la autoridad de los jueces. El estado administrativo cumple con la integridad del derecho. Esto es, este no ha surgido de un golpe de estado, o de una imposición externa. Por eso el estado administrativo norteamericano no puede entenderse como análogo al droit administratif francés que se intentó a comienzos de siglo en EEUU por Freund. Esta es la historia de un fracaso. Ni tampoco tiene nada que ver con el estado burocrático estamental que criticaba Weber para la nacion tardía alemana.
VI. Post-katechon y nuevas compensaciones. ¿Es el cambio del estado de derecho madisoniano o liberal dworkiniamo un nuevo absolutismo imperial? Mi hipotesis es que no. Y no lo es a partir de dos criterios: la anticipación y la delegación. Para Hans Blumenberg en Trabajo sobre el mito, estas dos categorias operan para encontrar una mediación posible con la realidad de lo absoluto. Entonces, quizás sea Hamburger el absolutista, quién en el momento postkatechontico actual busca deshacerse de la anticipación y la delegación enraizada en el derecho adminsitrativo. Por eso Villacañas tiene razón en un trabajo reciente cuando dice que la caída del katechon como forma estatal supone que pensemos una nueva división de poderes sobre las premisas de la compensación. Y esto es lo que legitima el estado administrativo, que es algo que no se entiende desde premisas schmittianas (aquí me distancio del trabajo de Vermeule y Posner). Nos queda pensar la relación entre administración y republicanismo.
VII. Liquidación de la teoría política. En cierta medida este trabajo en curso sobre el estado administrativo responde a una posición crítica a mía ante las metapolíticas del pensamiento crítico contemporáneo. No solo los libertarios rechazan la legitimidad de la administración, también la teoría crítica que hoy no es más que politización de la vida y sobre la vida. De ahí la necesidad de la infrapolítica. Los ejemplos abundan: pensemos en el desprecio a la legitimidad terrenal de Giorgio Agamben en su libro sobre el misterio escatológico de la Iglesia, o en las mimesis teológicas-políticas de Esposito en torno al ius imperii, o incluso Arendt quien se muestra horrorizada en Judgement & Responsability sobre el ascenso de la administración. La metapolítica o impolítica contemporánea es probablemente la compensación que emerge a partir de la liquidación de la teoría política estatal. Por eso no me interesa desarrollar una teoría política de la administración, sino pensar la administración en registro infrapolítico: esto es, más alla de los arcanos y los viejos principios que ya no puede responder eficicientemente a un mundo postautoritario.
Lo que me gustaria llamar la liquidación de la teoría política toma distancia de toda metapolítica y teología política substituta. Por eso el estado administrativo no es horizonte normativo, ni puede traducirse a una metapolítica desde un reclamo contra su neutralización de lo político. La democracia necesita confrontacion realista ante la cuestión del derecho, sin que tenga que verse forzada a aceptar la indeterminación del estado de excepción cuya mimesis imperial se desdibuja ante la adjudicación administrativa. Hay que estar a la altura: la reinvención de la democracia en nuestros tiempos (que es la del populismo, y la de una nueva división de poderes, o la del constitucionalismo), tiene como tarea pendiente asumir el reto del estado administrativo. No queda otra. Por eso, pensar su legitimidad aparece como urgencia para seguir avanzando con nuevos pasos sin el peso regresivo del arcano.
Philip Hamburger’s most recent book, The Administrative Threat (Encounter Books, 2017), is a legal pamphlet as well as constitutional call to arms of sorts. Deliberately written for the general public with the intention of popularizing the central tenets of his otherwise more technical work Is Administrative Law Unlawful? (U Chicago Press, 2015), Hamburger fuses a warning with a call to question the increasing danger posed by the expansion of the administrative state in American public law. In his view, no other force and legal development is undermining the core and purpose of civil liberties as much as administrative law, which today extends to all spheres of social life. This bureaucratic power is not only an existential threat to personal freedoms, but also a betrayal to the original intent of the Constitution.
The idea harboring this perception is that decision-making is only possible on purely market or commercial grounds, which administration continuously obstructs under the guise of regulation. The book cuts sharply through a martial tone: “For better understanding of the administrative threat one must turn to law…for although much administrative state power is economically inefficient, all of it is unconstitutional” (Hamburger 2). But how did the development of legality and American public law reached such a boiling point? This a question that Hamburger must sidestep, and at times reduce to a barely credible narrative regarding a handful of American scholars that studied German administrative law at the turn of the last century. Hamburger accurately notes that in the last century (roughly from 1917 to 2017), there has only been ‘rise and rise’ of administrative delegation. This is undeniable. James M. Landis records in The Administrative Process (1938) about 12-14 federal agencies in 1933. Today there are between 240-456 federal agencies, including sub-agencies, quasi-agencies, and departments. And as if more alarm is needed, each landmark opinion through the century by the Supreme Court has incrementally extended agency statutory powers for execution and judicial interpretation.
In what follows, I want to critically comment the three premises that support Hamburger’s attack on the legitimacy of administrative state: 1. a historical comparison with the King James monarchy in order to make the case that we are returning to a regime of legal absolutism; 2. that we are witnessing the corruption of the separation of powers, which has expounded extralegal boundaries; 3. and the libertarian assumption that civil liberties are prey to the tyrannical might of the administrative state. Hence, as Hamburger says verbatim, the administrative state is fundamentally disloyal to at least two tiers of governmental authority: on the one hand, to an arcana, and on the other, the more real ground of civil liberties and negative freedom (Hamburger 23). While the first lies in that of the level of principle, the second forms that of integrity. It is important to note that, as Hamburger does at the outset of the book, his critique is at the level of legitimacy. Hence, he is not necessarily interested in putting forth a critique of political economy or regulatory reform, which would entail an acceptance of the administrative state one way or another.
Let us take the first premise, which assumes that the administrative state brings about a new absolutism. Hamburger establishes a comparison with King James’s absolute monarchy, which represented a model of constant prerogatives and forms of adjudication to agency discretion, in permanent conflict with legislative decision-making, and interpretative authority of judges. For Hamburger this all takes place in the present, but the situation is much worse, since the administrative state seems to have achieved King James’ absolutist intention. For instance, Hamburger writes: “the lawmaking interpretation that James desired for his prerogative bodies has become a reality for American administrative agencies. Federal judges’ show varying degrees of deference to agency interpretations, and the agencies therefore can use their interpretation to create law” (Hamburger 9). Ultimately, this means that administrative agencies have come to inhabit a sort of juridical monad that can interpret, execute, and legislate its statutory norms and facts in clear violation of the principle of the separation of powers.
Hamburger observes the watershed 1984 decision Chevron vs. National Resources Defense Council, in which Burger Court decided that every time there are statutory ambiguities, judges must defer to agency for clear interpretations, with horror. This does not mean that an agency will rule every time on the agency’s behalf, but it has come to establish what is known as the principle of ‘deference’ in a two-step model. Mainly, that if Congress does not express direct intent on the statute, the agency can uphold the interpretative prerogative for clarification of any ambiguous component. The deference principle to agencies not only violates the principle against subdelegation (the common law axiom delegata potestas non potest delegari), but more importantly for Hamburger it confuses the spheres of interpretation and execution in the hands administrative quasi-judges. The prefix hints at the fact that experts and technicians of different epistemological spheres now have entirely displaced the imperial pretensions of the independent judicial branch. At the same time, we know that there are no judges freed from inter-dependence, and that the very legal process is always politically binding . This transformation does entail that the judiciary is noww marginalized to a thin discretionary position to arbiter reasonable goals.
Furthermore, it is not the case that the way deference is understood in American administrative law hinges on a principle of sub-delegated power. Adrian Vermeule has convincingly argued how the specification of statutes is conceived within the executive branch . Hamburger insists, however, in that “administrative power resembles old absolutism” (Hamburger 14). Absolutism is defined as extra-legality, and as a fundamental and consistent evasion of law (sic). Curiously, Hamburger fails to explain in which way the expansion of the administrative state legality has moved the boundaries unto an extra-legal domain over time. The administrative state cannot amount to a new monarchism for the simple reason that there is no monarch who is deemed as the sovereign mediator capable of dispensing his potentia absoluta without retrains.
The administrative state is a process of self-rationalization towards judicial abdication to experts, abandoning the empire of courts towards reasonable decision-making. It is an enterprise to limit incongruousness and contingency. As we know, this is one of the trademarks of the modern legitimacy. In other words, the administrative state follows integrity, and not the arcanum of political theory. This is something Landis already had in mind in the 1930s . If absolutism is grounded in a principle of contingency and theological nominalism, modern rationality and administration bends towards rationalization of law’s integrity . In doing so, the administrative state is a highly sophisticated machine to regulate all possible risks. Here the question of a constitutionalism of risk within the expansion of the administrative delegation becomes relevant.
Hamburger, in a sense, seeks to revive the specter of Elizabethan judge Edward Coke, while ignoring that the becoming of the administrative state has pluralist aims, at odds with vertical decision protocols vested in the absolute sovereign . The administrative state is a modern legal development, and any comparison to the English monarchy is a serious bend. From a historiographical standpoint, Hamburger’s premise is also ambiguous when he writes: “Early Americans, however, were familiar with English constitutional history, and they therefore were well aware of the danger from the absolute power and its extralegal paths” (Hamburger 19). It is not the case that there is a firm consensus about the patriot political beliefs about presidentialism or the British Monarchy. Eric Nelson in his landmark The Royalist Revolution (2014) has studied how republican patriots were comfortable with ideas of strong centralized executive power in fear of the British parliamentary form regarding commerce and taxation. And here one should ask to what extent the imperial presidency could also be justified on “originalist” grounds. But this is beside the point, since the legal development of administrative law is one thing, and the Atlantic political theory is another.
This takes us the second point regarding the separation of powers. The main problem with Hamburger’s account is that it fails to engage with Adrian Vermeule’s sound critique in Law’s abnegation (2016) of a certain political attachment to an idolatrous understanding of the separation of powers. Vermeule terms ‘idolatry of the separation of powers, in reference to a mechanic execution of the three branches (legislative, executive, and judicial). In this framework, anything that is excess to it is part of a narrative of betrayal. But it should not be so. This is what Landis called rather humorously the “attachment to the number three”:
“To condemn the administrative process simply because it is a fourth branch of government is not to consider what a branch implies. Four, five, and six branches of government may, of course, coexist without violating Montesquieu’s maxim, for the ultimate source and the ultimate division of power remains the same. It is the relations of the administrative state’s three departments of government that are important” 
Needless to say, a mechanistic fixation to the tripartite separation of powers fails to account for the ways in which the administrative state is already an expression of specifically allocated knowledge, decisions, and state-national-agency conflicts over a long period of time. The question that should be asked is not in which way the administrative state profanes a sacrosanct Madisonian separation of powers structure, but rather whether there are powers in separation that are legitimate within the classic design of contemporary government, which is what Vermeule brings to bear in his important book . The fact that Hamburger is silent about the different arguments made on behalf of the administrative state’s legitimacy (Landis, Kagan, or Mashaw ), speaks about his originalist obliviousness to historical and legal evolutionary nature of the separation of powers. As a process of self-rationalization, the legitimacy of the administrative state is rooted in its immanent force against any transcendental arcanum. Hence, the way to test the status of legitimacy is not by probing on the grounds of the separated powers in 1789 or the seventeenth century, or in terms of what Madison or Montesquieu thought of them, but rather on how well those powers today can withhold actions within a frame of reasonable judgment regarding the material need of the res publica. The administrative state does not stand for a vicarious being, since its delegated powers are not ideal immovable concepts, but rational conditions for risk management of human action.
This leads me to the third and final premise of The Administrative Threat. Hamburger does have something to say about the current condition of citizenship, and it comes by way of the libertarian defense of civil rights. The idea here is that the administrative state trumps individual rights in the name of “public” rights, which Hamburger calls a “disgraceful assault on the Bill of Rights and the due process” (Hamburger 35). This argument is supplanted with a meditation on the historical valance between voting rights and the administrative state. Going as far as to the Wilson presidency, Hamburger shows that throughout the twentieth century, bureaucracies were at odds with the voting rights of disfranchised minorities. Of course, the implicit assertion here befalls on a defense of the courts, primarily the judicial activism of the Warren Court, which Bruce Ackerman, on the opposite side of the political spectrum has called the last legal revolution in American constitutional development . This is even truer today in light of the Shelby County decision, and the rise of Kris Kobach or Jeff Sessions to national public office, both intellectually committed to voting suppression . One could say that both Hamburger and Ackerman, albeit in very different ways, lament the dawn of the traditional judicial authority. But even if there were a one-direction movement between the expansion of rights and the rise of the administrative state, it seems illogical to defend a return of a court-centric model on the basis of past historical experiences.
If we are, indeed, at the end of the court-centric legal revolution model, are we to assume that the dismantling of the administrative state will restore its capacities? I am doubtful of the eschatological weight of such a proposal. And if voting rights is a concern for Philip Hamburger, why isn’t electoral reform an optimal option for democratic expansion? Of course, this would necessary entail something like a Federal Voting Commission, which would in turn require more of the administrative state. But we are in no position to think that if we were to imagine the end of the administrative state (even as a thought experiment), a new type of liberty would be distributed across the board.
Since today we are facing the end of the state form, any historical analogies with the past tremble on very weak grounds. Furthermore, we know that beyond the moment of casting a vote a ballot, a civil equality protection really amounts, as Anatole France used to say, to whether we chose to sleep in a park bench or under bridges. While might be true is that the administrative state is a neutralizer of political dynamics, to use the language of Carl Schmitt; it is in no way reasonable seek its destruction in the name of a libertarian ideal of freedom within an unequal social space. It is defeatist to turn to political theory in exchange for the integrity of administrative legality, as Hamburger seems to do here.
It is rather strange for a libertarian to end a book on a legitimacy crisis quoting Lenin. But there is another implicit paradox here on Hamburger’s part; mainly, that while Lenin offered a theory of state, we cannot say the same for Hamburger. The modern state was able to implement and model itself with commerce, but much harder is to image a state emerging from contemporary anarchic markets. Hamburger writes in a section sarcastically subtitled what is to be done?: “Lenin asked his fellow Russians, “What is to be done?”. Fortunately for Americans, the answer is not revolution but a traditional American defense of civil liberties. To this end, Americans will have to work through all three branches of government. Of course, none of the branches have thus far revealed much capacity to limit administrative power” (Hamburger 61). This is a self-defeating argument, since as Vermeule has argued quite convincingly, even if one could ‘magically’ undue the administrative state and return to the original institutional design of 1789, it will evolve into the administrative state. This is an argument centered on the integrity of the American legal development that Hamburger needs to ignore in order to render somewhat possible the return to the idolatrous originalism of the separation of powers and principled judicial review. The other part of the ‘what is to be done’ plan resonates with a populist overtone: “Ultimately the defeat of administrative power will have to come from the people. Only their spirit of liberty moves Congress, inspires the president, and braces the judges…” (Hamburger 64).
But who are the People? Is We The People the progressive mobilizing force within a constitutional regime? Is the People here a spirit or idea for the return to the courts? It is difficult to say, mainly, because Hamburger himself has no idea either. I take this to be the impasse of libertarian and liberal thought facing the irreversibility of the administrative state. This explains why libertarians, at times, equate deregulation with lessening the administrative power. This impasse is, in effect, the same currently stamping Trump’s strange brand of populism, which has, on one end, the mission to ‘destroy the administrative state’, and on the other, the nationalist protectionist banner to cushion transnational market forces. For better or worse, neither of these two goals seems plausible together. At best, they represent a double-bind of the liberal impasse. Only in this sense, the administrative state is a temporary katechon .
The trumpist complexio oppositorum in the form of a schizophrenic symptom is showing, paradoxically, that the administrative state will only be reinforced through new checks and balances emerging from executive administrative inefficiency. We are now in conditions to reach a somewhat different conclusion from that of Hamburger’s: we are far from an absolutist monarchic regime, since the human cannot endure the absolutism of reality devoid of a sense of anticipation . The principles of delegation and anticipation seem to be two components of the administrative state that have their legitimacy in modern self-rationalization. In the end, it might be Hamburger who, in validating an ostensible and yet dissolute world beyond administration, promises the humanity an archaic absolutism of an unbearable nature. However, no man can live in the absolute. But even if we are to image an alleged triumph of an original law under the supervision of a New Coke, this would require in the form of an eternal recurrence, the invention of the administrative state.
- See Braden, George D., “The Search for Objectivity in Constitutional Law”, Faculty Scholarship Series. 4031, 1948. However, for a contending non-political moral stand of the judicial process, see Alexander Bickel. “Constitutionalism and the Political Process”, in The Morality of Consent. New Haven: Yale University Press, 1975.
- See Vermeule’s argument on the lawfulness of administrative law on the principle of delegation through executive power in Law’s Abnegation (2016), 50-54 pp.
- Landis will write in The Administrative Process (1938): “A similar development with reference to the administrative seems more a matter of time than of political theory, of demonstration by the administrative that intervention of this character is futile and tends more to prejudice than to further a client’s cause”. 102-103 pp.
- Hans Blumenberg. Legitimacy of the Modern Age. MIT, 1985. 125-205 pp.
- Sunstein, Cass & Vermeule, Adrian. “The New Coke: On the Plural Aims of Administrative Law”. The Supreme Court Review, Number 1, Volume 2015.
- Landis, James M. The Administrative Process (1938). 88 pp.
- Vermeule Adrian, Law’s Abnegation: from law’s empire to the administrative state (Harvard U Press, 2016). 56-87 pp.
- Ackerman, Bruce. We The People III: The Civil Rights Revolution. Cambridge: Harvard University Press, 2014.
- Berman, Ari. “The Man Behind Trump’s Voter-Fraud Obsession”. New York Times, June 13, 2017. https://www.nytimes.com/2017/06/13/magazine/the-man-behind-trumps-voter-fraud-obsession.html
- On the administrative state as a counter-schmittian katechon, see my “The administrative state as a second Leviathan: a response to Giacommo Marramao”. Although I do not mean by any means that the administrative state is a universal katechon in the way that the Church and the early modern state were, but this I will try to develop somewhere. https://infrapolitica.wordpress.com/2017/05/25/the-administrative-state-as-second-leviathan-a-response-to-giacomo-marramao-by-gerardo-munoz/
- On the absolutism of reality and the anthropogenesis of anticipation as an intrinsic separation of powers, see Hans Blumenberg’s Work on Myth (MIT, 1985). 2-40 pp.
Tim O’Brien’s The Things They Carried, a text about the Vietnam War first published in 1990 (Boston: Mariner, 2009), includes one of those phrases that give the reader pause because they make him suspect there is more where it came from. The phrase is a hapaxlegomenon, or worse: not only is it never used again, the comments that follow it appear as a non-sequitur, and one is uncertain about how to read the thing. The phrase reads: “the aesthetic purity of absolute moral indifference” (77). The full phrase is: “any battle or bombing raid or artillery barrage has the aesthetic purity of absolute moral indifference—a powerful, implacable beauty.” So the reader must consider why absolute moral indifference could or should be aesthetically pure, and whether there can be absolute moral indifference, and whether, should it exist, it is the right response to an artillery barrage or an event at the office; and more, and perhaps disturbingly, whether absolute moral indifference could or should rise to the rank of a powerful and implacable beauty. How would it be, if we managed to live in absolute moral indifference? Would it really be a matter of implacable beauty? It is hard to imagine it. One can hardly say no, and one can hardly say yes. There is some danger there, in that phrase. The danger is intriguing.
The next paragraph—but the reader must decide whether the next paragraph means to explain that phrase, or to hide it—talks about the intensity of sensations the proximity of death brings along. “Proximity to death brings with it a corresponding proximity to life” (77). “All around you things are purely living, and you among them, and the aliveness makes you tremble. You feel an intense, out-of-the-skin awareness of your living self—your truest self, the human being you want to be and then become by the force of wanting it” (77). One get this, intuitively. Some end of pretenses, being down to the wire brings about a revelation, an unconcealment. The unconcealment is beautiful and you want to dwell in it, not give it up. What does this have to do with absolute moral indifference? Is this desire already morally indifferent? But the next sentences seem to affirm the very opposite: “In the midst of evil you want to be a good man. You want decency. You want justice and courtesy and human concord . . . you are filled with a hard, aching love for how the world could be and always should be, but now is not” (78).
Are we dealing with a sublime experience of absolute moral indifference, or are we dealing with a radical moralization of the indifferent? Or, at the limit, are those two things the same? The text does not say. But it does say, in yet the next paragraph, that “the only certainty is overwhelming ambiguity” (78). The ambiguity, however, that presumed certainty, does not let us off the hook. The question remains. The certainty only covers it up.
In the middle of his important (but by now slightly dated) essay “Dasein as Praxis: the Heideggerian Assimilation and the Radicalization of the Practical Philosophy of Aristotle,” Franco Volpi says:
“Aristotle considers human life in totality as a praxis and not as a poiesis; and praxis is considered as the specific kinesis of human life, which is not simply oriented toward the conservation of life itself, towards living pure and simple (zen), but which is bios, the project of life which, once vital conservation is assured, comes to terms with itself in the space which opens up before it in relation to the problem of how to live, that it, to the choice of the preferable form of life by man, to the problem of living well (eu zen) and to the means suited to realizing this goal. This means that man, qua political animal endowed with logos, carries the weight of the responsibility of deliberating (bouleusis), of choosing and of deciding (prohairesis) about the modalities and the forms of his life by turning toward that which he takes to be the best. As we know, it is the wise man, the prudent man (phronimos), who succeeds in deliberating well, in choosing and deciding well and who realizes right action (eu prattein), the good life (eu zen), and therefore happiness (eudaimonia).” (Volpi, “Dasein as Praxis,” Michael Macann ed. Critical Heidegger, London: Routledge, 1996, 47).
This is an important paragraph to the extent that it prefaces many discussions in the last twenty or thirty years of reflection: think of biopolitics, think of “living well” in the late Derridean or even the decolonial sense, think of Giorgio Agamben’s work. We can agree with Volpi that Heidegger, in the ten years of so prior to Being and Time (1927), picks up many of the Aristotelian determinations for practical life, while reformulating, radicalizing, and ontologizing them. And it is arguable that Heidegger never gave up on this, and that even his latest musings and reflections are still entirely contained within a practice of thought as the explicit interpretation of practical life, against every productionism (that is, against every form of poietic thought), and against every theoreticism (and the extent to which this is so remains paradoxically unexplored in Heideggerian criticism.) What emerges as a question—and the question concerns our interpretation of Aristotle’s relevance even more than that of Heidegger’s for contemporary life—is whether Volpi is right in attributing to Aristotle, and by extension to Heidegger, the notion that practical life is fundamentally decided through its “political condition.” With the exception of any number of things he said or did during the admittedly many pro-Nazi or pro-Hypernazi years, it can be said that Heidegger stepped back from the fundamentally political determination of existence towards what we have been calling infrapolitics. But is that the move identified by Volpi in reference to Aristotle’s definition of “man” as “political animal”? As a “political animal” you can presumably choose to step back from politics in the same way that as a passionate fellow you can choose to calm yourself down, but what does that mean? Is phronesis a condition that is necessarily implemented within the political world, or is phronesis a condition that helps you determine your interests both within and without politics? Is the phronimos a political animal that has politically succeeded in living well as the culmination of political life, or is the phronimos a practical animal that can eudaimonically choose its field of engagement transpolitically or parapolitically? What is ontologically prior, politics or practical life? If you reread the quotation above, you may see that the answer is not at all clear in Volpi’s words.
Mario Tronti said at a recent meeting in Rome that Antonio Gramsci’s philosophy is a “philosophy of praxis,” connecting it all of course to the famous Marxian thesis on Feuerbach about transforming the world. So, one first question ought to be whether the “philosophy of praxis” as transformation of the world in the Marxist tradition needs forcefully to be “hegemonic praxis” (“hegemonic” or “counterhegemonic” makes no difference here). I think both the Marxist and the post-Marxist traditions actually prove that to be the case. “Transforming the world” ends up being picked up as simply putting the world upside down in hegemonic terms—that is, as a merely ontic transfer of power. The second question is whether the Marxian tradition would allow for any consideration of an alternative form of praxis, namely, posthegemonic praxis. Posthegemonic praxis is already the claim that, even within politics, “transforming the world” does not and cannot simply mean altering its hegemonic constitution. A radical philosophy of praxis is posthegemonic to the very extent it is infrapolitical–that is, to the very extent that it cares about the very conditions of political relation, without presupposing them as always already given, always already enacted. The infrapolitical step-back is the claim that questioning the presupposition of political saturation is already the proof that there is and can be no political saturation (that is, that merely ontic transfers of power are not and could never be the ultimate horizon of human praxis). An infrapolitical philosophy of praxis aims to “transform the world” of the (bogus) world-transformation only ever theoretically invoked by hegemonic thought in its counterhegemonic versions.
The thought of infrapolitical praxis takes its departure from something other than the notion of the radical politicality of the human being, without denying it. Yes, the human being can be or is a “political animal,” also a “productive animal,” also a “theoretical animal,” also an animal pure and simple. But those four determinations do not exhaust the field. There is a fifth determination (within a series that may remain open: there could be n determinations), which is the infrapolitical one. The contention is simply that there is a practical priority for the infrapoltical determination, not because without it the other four are only elements in an undetermined series; rather because infrapolitics is the name for what has remained unthought in any philosophy of praxis, as the very ambiguity of Volpi’s quotation helps confirm.
Concebir un libro como ficción teórica es pensar a la vez algo que no puede darse por descontado: no solo que la ficción teórica es la verdad del libro sino que la verdad del libro es su ficción teórica. Esto último complica las cosas.
Más si uno reconoce que el libro mismo se escribe como si fuera el producto narrativo de cuatro o cinco narradores diversos–es decir, de haber ingerido píldoras de esos narradores que producirían formalmente el resultado X que sería la ficción teórica del libro (muy al margen de su “contenido,” quizá solo concebible en estado de desobra).
Serían, por ejemplo, el narrador de Memorias del subsuelo, de Fiodor Dostoyevski, el de Un héroe de nuestro tiempo, de Nikolai Lermontov, el de Contra Sainte-Beuve, de Marcel Proust, el de Memorias de un hombre de acción, de Pío Baroja.
Concebir la intersección de esas cuatro estrategias narrativas es quizá todo lo que el libro podría ofrecer, y ya no habría que escribirlo.