“La legitimidad administrativa y la liquidación de la teoría política”. Presentación en el marco del Seminario Crítico-Político Transnacional IV “Los arcanos de la política”, Universidad Complutense, Madrid 2017. Por Gerardo Muñoz.

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.

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A Constitutional Absolutism? On Philip Hamburger’s The Administrative Threat. By Gerardo Muñoz.

AdministrativeThreatPhilip 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 [1]. 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 [2]. 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 [3]. If absolutism is grounded in a principle of contingency and theological nominalism, modern rationality and administration bends towards rationalization of law’s integrity [4]. 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 [5]. 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”  [6]

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 [7]. 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 [8]. 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 [9]. 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 [10].

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 [11]. 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.

 

 

 

 

Notes

  1. 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.
  2. 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.
  3. 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.
  4. Hans Blumenberg. Legitimacy of the Modern Age. MIT, 1985. 125-205 pp.
  5. Sunstein, Cass & Vermeule, Adrian. “The New Coke: On the Plural Aims of Administrative Law”. The Supreme Court Review, Number 1, Volume 2015.
  6. Landis, James M. The Administrative Process (1938). 88 pp.
  7. Vermeule Adrian, Law’s Abnegation: from law’s empire to the administrative state (Harvard U Press, 2016). 56-87 pp.
  8. Ackerman, Bruce. We The People III: The Civil Rights Revolution. Cambridge: Harvard University Press, 2014.
  9. 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
  10. 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/
  11. 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.

The administrative state as second Leviathan. A response to Giacomo Marramao. By Gerardo Muñoz.

The two day conference “All’ombra del Leviatano: tra biopolitica e postegemonia” in Rome Tre University, was extremely productive and rich for continuing thinking the effectivity of posthegemony as a category for contemporary political reflection. Giacomo Marramao made this very clear in his generous introduction, as well as Mario Tronti, who took up the term several times in light of the crisis of depolitization and neutralization in democratic societies on both sides of the Atlantic. Sadly, at times conferences do not allow more time to reshuffle ingrained beliefs and hardened convictions. Thus, I just want to return to a question that was thrown by Giacomo Marramao regarding my paper on posthegemony, constitutionalism, and the administrative state [1]. 

I do not have a recording of Giacomo’s commentary, but from my notes, I recall he asked me a question that had two separate parts: a. whether the administrative state was synonymous with the securitarian state, b. why did I refer to the administrative state as a “second order Leviathan”, which I do explicitly in my text without much elaboration. This a central question, which I would like to elaborate in writing a little bit more, as to get me started thinking about a further relation between posthegemony and legality.

So, I will start with the first question: is the administrative state the same as the security state? My gut reaction in the exchange with Marramao was to say no. However, perhaps today the security state is a compartmentalization within the administrative state. In the United States, there is a clear and substantial difference between the rise of the administrative state and the security state in two separate tracks. In the historical development of American legality, we tend to associate the administrative state with the robust state building social policies of the New Deal, that is, with the classic welfare state. In fact, Moreiras argued a few years back that Keynesianism is one of the last figures of modern katechon [2]. Of course, Keynesian economics is somewhat different from the administrative legal development, but I do think that they complement each other. On the other hand, the so called securitarian state, is usually understood in the wake of the the emergency executive power, the torture memos, Guantanamo, and the expansion of other federal agencies to biometrically further deter terrorism after 9/11. At first sight, it seems to me that in Europe the securitarian state has now normalized and conquered the legal paradigm. In the United States, paradoxically, there seems to be a minimal difference between the security and administrative state.

A good example, in fact, is the case of Kris Kobach, a constitutionalist who favors legal securitization against illegal immigration, but not so much in the name of the administrative state. On the contrary, Kobach wants, very much in line with Steve Bannon, to ‘deconstruct the administrative state’. So, my intuition is that whereas in Europe legal developments have led naturally to the securitarian state, in the US the natural development has been towards deference and the delegation principle of administrative law [3]. We have yet to witness a securitarian state as fully hegemonic within the American legal development.

Now, the second question: why do I (should we?) call the administrative state a second order Leviathan? It is true that I should have made clearer that I was implicitly trying to turn around Schmitt’s argument in The Leviathan in The State Theory of Thomas Hobbes. Everyone remembers that in this book, Schmitt revises the state form in the wake of modern political theology, as already a ‘big machine, a machina machinarum’ within the age of technology [4]. To put it in Gareth Williams’ terms, the katechon was already post-katechontic, unable to fully give form to disorder, and incapable of providing long-lasting authority. In this sense, I agree with Marramao’s paradigmatic thesis that power today lacks authority, and authority lacks power. This seems to me a variation that fully applies to the administrative state. Of course, Schmitt thought administration dispensed anomy. But I think it is quite the opposite. The administrative state has become a great neutralizer of the political as defined by the friend-enemy distinction in the second half of the twentieth century. This is the second katechon.

This administrative katechon withholds the anomy of the full-fleshed market force, as well as the potential force of total politization. This is why both Schmitt from the political sphere, and Hamburger, from the market’s sphere, despise the administrative state. They both seek its destruction, which is an assault against the rule of law. But again, these positions grossly misunderstand the internal development of law’s abnegation, to put it Vermeule’s terms (2016). This katechon has internal legitimacy, but it lacks ex-terior democratic legitimacy of participation and dissent. But the argument of absence of dissent from administration has also been contested (Rodriguez 2014, Williamson 2017). Can one probe the administrative katechon today?

Interestingly, Mario Tronti wrote an essay on the Leviathan to challenge this question. As a Marxist, he called for a will to resist it. Let me briefly quote Tronti: “Men confront the archaic symbols of evil, and against them, they struggle. When men think that, through some of sort divine grace, they do not longer need to struggle, is when they become even more defeated. If time dispenses the tragic, we end up with just a positive acceptance of the world” [5]. This is what Tronti calls the “red heart of conflict”. I have doubts that a principle of subjective will to power can do the work to deactivate the katechon as it stands for the administrative state. In fact, I wonder whether any ‘willing’ against the katechon is even desirable. At the same time, doing so will not differ much from the libertarian position that in the name of an abstract freedom, forgets the infrahuman base of any social existence.

But I also wonder whether Tronti himself still believes in resistance today, since in the conference he called for a reformist political praxis and revolutionary intellectual ideas. I tend to agree more with this scheme, since the administrative state also stands for a process of rationalization. No subjective practice can emerge as an exception to this new katechon without automatically appearing as a bate for this monstrous apparatus. Perhaps another way of thinking about Marramao’s dual question is whether the security state can dethrone the administrative state. Could it happen? If that happens, I will be willing to accept that it will be the end of the second historical katechon as we know it.

 

Notes

  1. My essay written for the Roma Tre Conference on posthegemony can be read here: https://infrapolitica.wordpress.com/2017/05/23/posthegemony-and-the-crisis-of-constitutionalism-in-the-united-states-paper-presented-at-allombra-del-leviatano-tra-biopolitica-e-posegemonia-universita-roma-tre-may-2017-by-gerardo/
  2. Alberto Moreiras. “Keynes y el Katechon”. Anales del Seminario de Historia de la Filosofia, Vol.30, N.1, 2013. 157-168.
  3. This is the central argument in Adrian Vermeule’s important book Law’s abnegation: from law’s empire to the administrative state (Harvard U Press, 2016).
  4. Carl Schmitt. The Leviathan in The State Theory of Thomas Hobbes. Chicago: University of Chicago Press, 2008. 44 pp.
  5. Mario Tronti. “Leviathan In Interiore Homine”. La Política Contra la Historia. Madrid: Traficantes de Sueño, 2016.

“Decontainment, Standing Reserve, the Central American Migrant, and the Question of Dignity”. Paper presented at “All’ombra del Leviatano: tra biopolitica e postegemonia”. (Universitá Roma Tre, May 2017). By Gareth Williams.

In this presentation I will focus on a recent essay by Carlo Galli, titled “Left and Right: Why They Still Make Sense” (Sovereignty in Crisis, 2017) in order to underline what strikes me as being an important inconsistency in the relation between that recent essay and Galli’s previous theses on global war, and, as such, on the question concerning contemporary technology and violence. In particular, Galli’s work on global war is predicated on the ongoing demise of modern political space, yet his recent distinction between left and right appears to uphold the historicity, state-form and Enlightenment tradition that allows for the continued understanding and experience of modern political space. This will then allow me to examine the question of the “equality of dignity” that Galli upholds in relation to the sustained biopolitics of the left. In light of Galli’s biopolitics of the left, I will then contrast Simone Weil and Marx’s ideas on labor and dignity in order to suggest an infrapolitical turn toward existence. My proposition is that all of the above is particularly pertinent for understanding the regional problematic of technics, death and space in the relation between the U.S., Mexico and Central America at the current time.

In his 2013 book Campo de guerra the Mexican journalist Sergio González Rodríguez presents us with an interpretation of recent techno-militarist and security infrastructures in the Mexican-Central American arena that resonate directly with a number of the basic premises of Carlo Galli’s theses on global war. In particular, González Rodríguez examines Mexico’s technological absorption into the U.S. military security apparatus, as exemplified in the legal ratification in 2008 of The Mérida Initiative, or “Plan México”, which in the last 8 years alone has led to $2.5bn in military and security appropriations destined for the Mexican state. In this book, González Rodríguez strives to examine the “twilight of sovereignty” (Marramao) at a time in which the Mexican state has come increasingly into focus as one of the prime perpetrators of extra-legal narco-violence. González Rodríguez speculates that the absorption of Mexican sovereignty by the U.S. military apparatus indicates that the extreme, un-absorbable violence of the last decade on Mexican soil is already being re-converted into new forms of securitized domination in the sphere of the economic and political elites of the North. There is a lot to criticize in this book. However, what can be said, when taken in conjunction with Galli, is that the current indistinction between war and peace is simultaneously post-katechontic (indicating the twilight of the modern nation-state understood as the restraining force against uncontrolled civil conflict within and across borders), and neo-katechontic (indicating that the very perpetuation of the dissolution of the modern nation-state is the force that globalizes as a katechontic principle of our times). More than ever, surplus value and the force of the ontology of the subject that seeks and guarantees its extension reign supreme as both spatial decontainment and katechon simultaneously. The process of post-katechontic re-conversion of Mexican sovereignty into the U.S. military-security complex ultimately upholds the sovereign performance of the Leviathan, but locates its restraining force exclusively in the United States intelligence and military apparatus (the DEA, FBI, Pentagon, CIA, The National Security Agency, The Department of Homeland Security etc).

Without doubt, it is still too premature to consider the military technological absorption of Mexican sovereignty into the U.S. military-security apparatus as a definitive, unquestionable historical process of post-katechontic re-alignment of hemispheric proportions. Having said that, it is certainly the case when we look beyond the U.S.-Mexico border—that is, toward the militarization and securitization of Mexico’s southern border with Guatemala and Belize ( “Programa Frontera Sur”)—that we can glimpse the absorption of Mexican national territory into a new security and spatial architecture: that is, we can perceive the re-definition of Mexican national territory as a military and paramilitarized zone of security and self-defense beyond the boundaries of the U.S. state proper, yet extending the unique interests of the United States.

This southern geographical arrangement of homeland security establishes a military and paramilitary territory of fixed and mobile immigration checkpoints from Chiapas and Tabasco to Oaxaca, Veracruz and beyond, via the installation of a security network characterized by formal and informal patterns of surveillance, espionage, intimidation, fear, harassment, racism, abuse and extortion, as well as by new protocols for the illicit, increasingly sophisticated and cut-throat industry of drug and human trafficking from Central America to the southern states of the United States.

“Programa Frontera Sur” (2014) is, in rhetorical terms, a humanitarian program. However it also extends the security-intelligence agendas of the DEA and U.S. immigration, customs and border protection all the way down to the Mexico-Guatemala border and even into Honduras and El Salvador. In the process it transforms Mexican territory into the place of execution of U.S. homeland security. It does this by essentially converting national territory into a buffer zone, an architectural network for mass arrest and deportation. What was formerly guaranteed legally as national territory is reconverted into the ritualized performance, living geography, and paramilitary end-game of postkatechontic force, thereby realigning Mexico’s military-economic relation to the north, while also redefining and intensifying Mexican paramilitary force’s relation of dominance over the impoverished political spaces, and the migrant bodies that flee from the social violence of, the south. The national territory of Mexico becomes the new border, the tomb of the proper, the negation of space by the formalization of technological indifference in the relation between the spatial and despatialization.

It is in this sense that “Programa Frontera Sur” inaugurates the pure techne of a new form of Mexican post-katechontic nonsovereignty, or active sovereign abdication. With this, I wish to indicate that this recent humanitarian Program highlights a fundamental double shift in the relation between the principle of sovereignty, post-territorial dominium, and the standing reserve. By becoming absorbed by U.S. security agendas Mexican sovereignty relinquishes authority, yet, in the renunciation itself, increases its regional military and paramilitary strength over Central America under the banner of (non)sovereignty.

I begin with this transnational techno-military landscape precisely because it attests directly to Carlo Calli’s formulation of global war and techno-military force, in particular relation to the ongoing dismantling of modern political space. In contrast, in his 2017 essay “Left and Right: Why They Still Make Sense” (Sovereignty in Crisis, 2017, 64-99), Galli presents ‘left’ and ‘right’ as two ways in which the modern, Enlightenment tradition still manifests itself (75). For our purposes today, I wish to highlight what is for me a constitutive short circuit in Galli’s defense of the precise sense of left and right. Specifically, I wish to highlight the moment in which Galli affirms that the Left “cannot go against the impulse for the free flourishing of subjectivity”, because, he continues, “praxis, which is obviously central to the world of politics—prevents it” (85). But why does praxis pre-empt absolutely everything (including the crisis of the modern understanding of political space and state-form) except the flourishing of subjectivity? Galli continues: “It is precisely the presence or absence of the political centrality of the subject and its equal dignity that makes the difference. This is the case”, he says, “regardless of the awareness of the epistemological crisis of subjectivity” (85). Ultimately, in order to offer a “new vision of the world” (97), Galli affirms, “the left must dynamically incite the power of populism” (97) in the name of the “equal dignity” of the subject, for this is what “makes the difference regardless of the awareness of the epistemological crisis of subjectivity”. Therefore, for Galli “the left has the task of taking on the existence and value of individuals as they ought to be, and of firmly articulating the rights of the subjectivities, but not in an essentialistic, identity-making way; in other words, not to turn the individual into a weapon against the other, but rather to arrive at it in all its concreteness” (97). Ultimately Galli wants a new populist biopolitics of the left capable of administering an “equality of dignity” that is neither identitarian nor constructive of antagonisms. In this privileging of praxis or the centrality of the subject, Galli appears to conflate subjectivity and existence, but does so explicitly sanctioning the active concealment of one of the essential determinations of our times: that is, “the epistemological crisis of subjectivity”.

Against crisis, then, the concealment of crisis in the name of leftist populism. Is this a short circuit created by the primacy of politics? It is striking that in order to reach these conclusions Galli has fallen short of addressing a number of constitutive factors, such as the Christian underpinnings of the “equality of dignity”; the question of historicity, other than that of the already collapsing Enlightenment teleology of progress; and the question of contemporary technology that we see, for example, in the double shift I’ve just traced in the relation between the principle of sovereignty, post-territorial military dominium, and the standing reserve, which is another way of referencing global war in a specific, cross-regional context. These are not insignificant absences in Galli’s essay. Indeed, it might appear that the essay is at least partially predicated on their absence.

In the end, however, one is left wondering whether in the current conditions of techno-militaristic globalization there could really be any difference between the “equality of dignity” in Galli’s modernist formulation, and Heidegger’s definition of the standing reserve as the place assigned to human doing—to praxis, for example—in a world dominated by techne (Heidegger, 1977, 17). For example, I wonder in what way the equality of dignity that Galli wishes to extend—an equality that appears to remain sutured to the modern teleology of progress—would not also be constitutive of technology’s order “to stand by, to be immediately at hand, indeed to stand there just so it [that which is allowed to have a standing] may be on call for a further ordering”. Jacques Derrida recuperates the question of the modern standing reserve and its relation to equality in the following terms, highlighting the constitutive concealment—the person, the unique self— upon, and against which, it is erected: “The individualism of technological civilization relies precisely on a misunderstanding of the unique self. It is the individualism of a role and not of a person . . . Equality for all, the slogan of bourgeois revolution, becomes the objective or quantifiable equality of roles, not of persons” (1999, 37).

In a slightly different though intimately related register, Jean-Luc Nancy (2007) echoed the standing reserve in his notion of “general equivalence” beyond the specific money-form, to the extent that global capital operationalizes—biopoliticizes—humanity itself: “If globalization has thus a necessity—the necessity that Marx designated as the ‘historical performance’ of capital and that consists in nothing other than the creation by the market of the global dimension as such—it is because, through the interdependence of the exchange of value in its merchandise-form (which is the form of general equivalency, money), the interconnection of everyone in the production of humanity as such comes into view” (2007, 37).

Derrida and Nancy’s formulations lead to a question regarding Galli’s recuperation and understanding of the equality of dignity: For example, if biopolitics is the technological production of life that places itself (life) in the role of self- production, and if it does this as a means of re-appropriating social roles in such a way as to accomplish politics, then is there anything in Galli’s equality of dignity other than the biopolitical concealment of the unique self, or person, which accompanies the production of the subject? Within Galli’s formulation, it appears that the thinking of the left is necessarily a thinking of biopolitics—a thinking, that is, of the standing within the order of the social that is sutured to capital in such an intimate way that it preconditions and orients every hegemony, determining our understanding of praxis.

But what if, in the epoch of global war, the question were no longer exclusively that of producing life and reproducing the centrality and will to power of the subject? What if we were to confront the possibility of thinking at a distance from biopolitics, (at a distance, for example, from the technological anthropologization of “equal dignity”) in the name of freedom from the standing-reserve that every biopolitics presupposes, and naturalizes. Can our understanding of the political, and of its limitations, only ever be immanent to the brutal perpetuation of techno-economic force and the ontology of the subject that perpetuates it? Or is there available to us an infra-political turn or distancing from the ontology of the subject? Let us not forget Reiner Schurmann’s fundamental insight in Broken Hegemonies, when he observes that “A thinking of being, which has been disengaged from subjectivism—if such a thinking is at all to come within our reach—forces one to think the political in another way”.

It is with this in mind that I would like to approach the distinction between Simone Weil and Marx, who had fundamentally interconnected though in the end different conceptions of the relationship between dignity, freedom and praxis. Technology lies at the heart of this distinction, as does the relation between attentiveness, or contemplation, and the decision. Weil was correct in highlighting that Marx “had failed to give sufficient attention to the degree to which science and technology themselves tend to reinforce alienation” (Sparling, 92). She was also correct to think that Marx had failed to see that inequality could not be erased “through the abolition of bourgeois property because it was an inherent part of technological life itself” (92-3). Clearly, Weil and Marx are very close (Weil notes, for example, that “the idea of labor considered as a human value is doubtless the one and only spiritual conquest achieved by the human mind since the miracle of Greece” (106). But Weil was certainly closer to Heidegger in her insistence on technology.

Whereas for Marx praxis emancipates man from his alienated, contemplative existence, for Weil it is attentiveness that liberates, opening labor up to the dignity of thinking, which she would also equate with attentiveness to God. In Weil, in other words, labor—the ontical experience that takes place only at the level of the ‘they’ and nowhere else—cuts through to something that is not political, and even lets come forth the possibility for an existence. Whereas Marx sought to turn contemplation into creative activity, thereby transforming philosophy into praxis and, as such, into a form of self-creation akin to un-alienated labor, Weil sought to transform labor into a contemplative activity; not into a means for, or another zone of, instrumentality, but as the forging of an unforeseen path toward the un-concealment of a dignity of thinking that extracts labor from mediocre banality. In Marx philosophy becomes the creative action of the subject, who alters reality; in Weil labor—the creative action—becomes a form of contemplation that alters the relation between thinking and world. Marx’s is a thought of life that produces a common auto-production or auto-creation whose vitality accomplishes politics in itself. In contrast, Weil holds to the possibility of a becoming that is not necessarily subservient to auto-production or self-creation. Her thinking of becoming exists in a register that is slightly different from that of self-creation as the sole pathway toward praxis: “Nothing on earth can stop man from feeling himself born for liberty. Never, whatever may happen, can he accept servitude; for he is a thinking creature . . . the time has come to give up dreaming of liberty, and to make up one’s mind to conceive it”, for, Weil continues, “in order to cease being delivered over to society as passively as a drop of water is to the sea, he would have to be able both to understand it and to act upon it” (83-97).

Perhaps we could say that what distinguishes Weil is a decision for thinking not as manufacturing, not as surrendering passively to the sea of biopolitics or to the standing reserve. For Weil, what is at stake is the possibility of un-concealing a beyond to the productivist suture of biopolitics, an un-concealment in which what is disclosed as previously concealed is the fact that existence cannot be produced entirely through politics, while politics is only ever produced within, and against, existence. In Weil, the purely ontic experience of labor can be uprooted from the disclosedness of the ‘they’ in order to be exposed to the undecidability that is existence.

In contrast, and perhaps in a relation of proximity to Carlo Galli’s notion of the ‘equality of dignity’, Giorgio Agamben ends his essay on stasis by noting that in global civil war “the sole form in which life as such can be politicized is its unconditional exposure to death—that is, bare life” (nuda vita). There is no doubt that this is currently the common sense politics of the left in relation to human rights and the politics of inclusion. Consider, for example, the relation between dignity and the standing reserve in the following rendering of the Central American migrant, which is designed to inspire in the reader both humanist respect and the equality of dignity:

There’s an image from the migrant trails that I’ll never forget. A man missing his right leg, a crutch under each arm, stepping into the darkness toward the train tracks. It was 2009. Before leaving, the man told me: It has stolen so much from me, I don’t think there’s much more to take. It was the train, which sliced his leg off two years before I saw him step toward the tracks in Ixtepec . . . the train—The Beast—devoured his right leg . . . When I saw him, he was about to catch his second train of the trip. Two years and one mutilation later the man had the same goal: make it to the United States to work . . . I write this scene to explain something to the reader: undocumented migration to the United States will not stop. (Martinez, 269-70)

This is the humanist dignity not of an exodus from biopolitical reproduction, but of the journey from one form of bare life to another; a journey traversing the differential conditions of the standing reserve, from subordination to subordination, from will to power to will to power, across the geographies of global war. But bare life’s perpetual inscription of its exposure to death is never a thinking that can be disengaged from subjectivism. In other words, it never forces us to think the ontical experience of labor (such as reading and writing) as a possibility for uprootedness, or exscription, from the political in the name of existence (Nancy, 107), (in which case exscription would announce the problem of the text exposed to labor). Rather, bare life reinscribes the metaphysics of subjectivism as the primacy of politics.

In contrast, the infrapolitical register for thinking the decision for existence, rather than for exposure to death, is a decision for thinking not in light of bare life or the equality of dignity. This would be a completely different register of decisiveness, of decision-making, and of dignity, beyond the biopolitical administration of life and the subjectivity that underpins it, and most certainly beyond the primacy of politics or the centrality of subjectivity and the preconceived notions of praxis that accompany it. It would be an infrapolitical register in which the decision would be “the own-making event of the disclosedness” of existence as “fundamental ownlessness” (Nancy). This infrapolitical register would be an opening to the thinking of the singular—to Being as ownlessness—and, as such, to the thinking of a fundamental modification in our understanding of praxis that would never cease to uncover the question of the relation between justice and the community of beings, certainly, but would do so in light of Being and the ontological difference, rather than in light of the biopolitical administration of life and its assignation of social roles, general equivalence, and the standing reserve, for the latter are only ever indicators of the history of a certain subjectivist nihilism that always underlies both hegemony and counterhegemony.

“Posthegemony and the Crisis of Constitutionalism in the United States”. Paper presented at “All’ombra del Leviatano: tra biopolitica e postegemonia”. (Universitá Roma Tre, May 2017). By Gerardo Muñoz.

In what follows, I will only have time to roughly sketch a couple of ideas of a larger project on “Constitutionalism and posthegemony”. The starting point driving this investigation forward is that we are currently living in the ruin of hegemony, understood as the orienting principle of modern political thought, as it pertains to the crisis of popular sovereignty for democratic legitimation. To the extent that legitimacy is integral to constitutional designs, I want to advance a populist posthegemonic model as one of the ways to think democratic reinvention. I must say here at the offset, that if the trending populist experiments around the globe teach us anything, it is that appealing to the notion of ‘hegemony’, in the wake of Ernesto Laclau’s theorization, is bound to be consistent with neoliberal and administrative machination, but also bound to a communitarian metapolitics [1]. Of course, Laclau’s theory of hegemony is already a theory that tries to come to term with the crisis of popular sovereignty as such, and it is a hegemony after the crisis of inter-state hegemony [2]. My thesis is that hegemony cannot do the work. An implicit premise that guides this reflection is that the rule of law is central to any discussion of the contemporary crisis of democracy. I think that if we are to move beyond liberalism’s impasse, we must do more than traverse the myth of political theology or reenact the critique of political economy. In other words, posthegemony needs to seriously challenge the current transformations of juridical rationalities and legal developments.

From these premises, it follows that constitutionalism has never been more pressing, albeit the skepticism of some scholars, and the systematic disregard for institutional thinking in critical and political theory today in the wake of the ‘political turn’ [3]. But I will return to this debate at the conclusion of my paper. As follows, the route of my exposition will be pretty straightforward, consisting of three precise movements: first, I want to draw attention to the internal crisis of legal legitimacy in the United States; secondly, I will move on to the external crisis of political legality focusing on the work of Krisis Kobach; and lastly, I will state the contours of my larger thesis on posthegemonic populism as an institutional design.

1. Crisis of Legitimacy in the America

There is a wide agreement that there is an ongoing crisis of American constitutionalism. The Terrorist attacks of 9/11, led to several transformative acts, such as the enactment of the Patriot Act, and the boundless statuary power of the Office of Legal Council (think the so-called “torture memos” written by John Yoo), which have severely brought to the attention of the general public the undermining of the separation of powers in conjunction with the menacing rise of the emergency securitarian state [4]. But for many constitutionalists, the effective executive power as a re-ordering of internal national security has been an expression and consequence of the rise of the Imperial Presidency. Although popularized by historian Arthur Schlesinger Jr. during the Nixon presidency in a book of the same title, the imperial presidency has been the central diagnosis of accounting for the rising threat within the constitutional republic [5]. Presidential illegitimacy is expressed today thoroughly in a set of concrete practices, such as executive orders, unilateral declarations of wars to non-existent entities (ISIS), or ‘rubber stamping’ by NSC lawyers. On the other hand, let us recall that Congress has become incapable of legislating for almost a decade now, which has led some, including the recent SC appointee, Neil Gorsuch, to argue that the courts is now the legislating site (Gorsuch 2005). Let me recall here what liberal constitutionalist Bruce Ackerman told me in an exchange I conducted with him at the beginning of the year: “With the new president, Donald J. Trump, what we are really going to see is if the Constitution will survive the next four years” (Muñoz 2017). The concern is not only coming from Yale Law School. Take, for instance, historian Timothy Snyder, who has made the case in On Tyranny (2017), that Trump’s populism is almost entirely paralleling the constitutional crisis of the Weimar Republic of the 1930s in his depreciation of truth and the rule of law.

Although these diagnoses have many sharp insights in them, it is also the case that they are instances of what Eric Posner and Adrian Vermeule have termed “tyranophobia”, which emphasizes the rise of presidentialism in a sort of vacuum (Posner & Vermeule 2009). The reality is that a potential rise of a tyrant in the American politico-legal context will be rare, if not almost entirely impossible. As a case in point, let us remember Trump’s early executive decision to bar certain nationalities from entering the US was immediately dismissed by lower courts. Or what is more, let’s recall the expedite way in which Trump redirected his anti-globalist views of foreign policy into a more global cohesive imperial strategy as suggested by the military cadres. In fact, Presidentialism is not the most threatening menace of the constitutional crisis, and I would like to suggest that there are two other internal tracks that are more worrisome, to the extent that they have legal and political effects. I call them internal, because they emerge from within the development of American law, putting legitimacy in dispute. One is a long duré transformation, and the second, a specific legal case, although both have fundamental implications for democracy.

Let me first start with the transformation. The crisis of American legitimacy has everything to do with the expansion of the administrative state, or the exceeding power of governmental agencies. Take, for instance, Columbia University Professor Philip Hamburger, who in his book Is Administrate Law Unlawful? (2014) argues that the juridical and executive delegations to Federal Agencies are unconstitutional under the principle of separation of powers and the illegality of a deferred delegation of power (undermining the common law delegate potestas non potesta delegari). When Steve Bannon says that one of the missions of the White House is to ‘deconstruct the administrative state’, he is actually popularizing the libertarian opinion against the administrative law’s deference and delegation powers allocated to bureaucracies. Although some (Mashaw 2012, Ernst 2014), have argued that the administrative state has been a long process of American legal tradition, its centrality has undertaken a more controversial tone after the watershed case Chevron vs. NRDC (1984), in which the Burger Court inaugurated the so called principle of ‘deference’. Simply, this means that whenever there is an ambiguous interpretation of a regulatory statue, the case is deferred to the agency for clarification. This does not mean that courts will always rule in favor of agencies; it just means that deference always takes place (agencies still win in about a 92% ratio, according to statistics compiled from 1983 to 2014). But the most important consequence is this: Courts since then have given administrative agencies a broad statutory discretion to enact several components at once: rationalize, interpret, allocate, and execute specific norms and facts under highly arbitrary contexts of decision-making within a ‘thin rationality’ framework.

From an abstract historical projection, the rise of the administrative state into all spheres of public regulation and everyday planning is an assault on the Jeffersonian tradition of democracy, which sought to lessen centralization of power among a large federalist arrangement. For good reasons, some theorists have called it “Tocqueville’s Nightmare”. If what Tocqueville admired in American Democracy was its communitarian and free association patchwork, the new ‘heart’ of law’s integrity in America since the New Deal rests on a bulky administrative state. However, from an internal perspective, the expansion of the administrative state is consistent with development of law’s rationalization to abandon the centrality of courts and judges. This is important, since it is difficult to name what is exactly illegitimate in terms of the law’s integrity. According to Adrian Vermeule (who follows Ronald Dworkin’s premise of Law’s Empire as integrity) the administrative state appears as the natural and rational process of abnegation. Vermeule’s thesis goes as such: “…law has abdicated its imperial pretension, and has done so for valid lawyerly reasons. But there is no real methodological puzzle here; good Dowkinians have to follow integrity where it leads…The trend of deference is not derived from any one judicial decision; it is a global feature of law in the administrate state, observable in many legal systems over time […] Law has decided that it best serves its own ends by lying more or less quietly under the throne” (Vermeule 18-22). It is important to note, however, that the triumph of the administrative state is, in some way, a shadow katechon or second degree Leviathan, at the moment of the disintegration of the popular sovereign state. It is as if the state had to compensate the crisis of democratic deliberation with a form of administrative machination. In the void of sovereignty, a new legitimacy is supplemented with an effective form of machination that widens its domains without fissures.

​Let us now consider the second case, which should make visible this problem in an even brighter light. In 2008, the non-profit group with strong ties to the Tea Party Movement, Citizens United released a documentary entitled Hillary: the documentary (2007), just a few days before the Democratic Primaries at the beginning of that year. I do not have time to comment the documentary, although it only takes a few seconds into the movie to perceive its apocalyptic overtones, conspiracy tropes, and ultra-nationalist rhetoric, to make spectators believe that Hillary Clinton would bring the Armageddon if elected. The documentary did not see its worldwide screen as scheduled, due to FEC (Federal Election Comission) regulation of funding sixty days before an election, which led to the filing of the case by C.U demanding that those regulations were unconstitutional restrictions in violation of the First Amendment (Moss 2017). The question that the Roberts Court had to decide was uniquely worrying: do corporations have 1st Amendment rights? And if so, could they be treated like “persons”, which would amount to an unlimited scrimmage for funding as a necessary condition for speech? In a highly contested opinion, which divided the court 5-4, Justice Kennedy decided in favor of C.U in these terms:

“By definition, an independent expenditure is political speech presented to the electorate that is not coordinate with a candidate. The fact that a corporation, or any other speaks is willing to spend money to try to persuade voters presuppose that they have the ultimate influence over the elected officials. This is inconsistent wit many suggestions that the electorate will refuse to take part in a democratic governance because of additional political speech made by a corporation or any other speak” (Post 63).

The opinion not only decided that corporations can influence elections, a precedent that was already in place in Buckley vs. Valeo (1976), but more effectively that there was no limitation on campaign expenditures, since corporations’ medium of public speech is money. It follows from this, of course, that to the extent that money is a medium that amplifies speech, politics, and democracy at large, benefits from the incremental influence of currency in the public. Regulations of financial capital, within this logic, discourage democratic exchange. Robert Post has made the case that the strict reading of the 1st Amendment in Kennedy’s opinion was utterly oblivious to the fact that it not only protests collective right to speech, but also the integrity of electoral campaigns. Corporations have rights of speech under the 1st A and the Commerce Clause, but speech presupposes that we freely speak and remain silent. Money, on the other hand, makes corporations each and every time obliged to speak as public speech.

Of course, legitimacy in a democratic republic rests upon the belief that political representation is responsive to your needs and concerns. When this fails, legitimacy enters a crisis, making democracy into pure administration. If Citizens United means anything it is that, analogous to the administrative state, money becomes an active general equivalent for democratic decision and deliberation. For instance, take a step back and think about how this case fundamentally erodes political parties’ structures (which I think we must stop and reflect how at a global scale we are witnessing the decline of political parties as another expression of the interregnum): between insider loyalists, and those in the shadow; between visible party constituents and members, and corporations and interest groups that support legislation for deregulation effects only (Gerken 2013). Through the principle of equivalence, politics becomes anti-politics as they draw systematically towards a well-established end, always on reserve and computed to bypass the administrative state [6].

That is why, one of the aftereffects of Citizens United’s decision is that it marks the end of political parties as legitimate actors, installing long shadows of players, corporations, and groups as actors of a new anti-democratic structure. This is the factual realization of what Roberto Esposito has called in his book Due: La macchina della teologia politica e il posto del pensiero (2013), the process of machination or ge-stell, which today expresses itself in what I have been calling the principle of general equivalence as the compensatory form of hegemonic domination (Moreiras 2017). In both cases, the administrative state and corporate speech, the People become a phantom sovereign in what is clearly an anti-democratic metastasis.

2. Kris Kobach and the activist legality

​When this occurs, politics and law conflate and become not very different from the police. In fact, one of the consequences of the fall of legitimacy is a crisis of legality, as it trends towards a politics of citizen policing. Take here, as an example, Kris Kobach, a Yale Law School graduate, and current Secretary of the State of Kansas. Who is Kris Kobach? To just draw a minimal profile of the figure: before Yale Law School, Kobach finished his dissertation under Samuel Huntington on the role of political participations of corporations during the apartheid in South Africa, and later in Oxford he completed a book about referendums in Switzerland [7]. He is a comprehensive actor that combines in his research interests on the one hand, populist plebiscitary mechanisms, and on the other, corporation flexibility in the state. In the United States, however, he is known for having drafted the Arizona Bill 1070, which required that state police made irregular arrests to undocumented immigrants wherever it thought there was ‘reasonable suspicion’ (Anderson & Smith 2015). Kobach appears in the context of constitutional crisis, as a representative of what I call, paraphrasing Judith Shklar, an activist legality of moral cruelty [8]. When liberal legitimacy crumbles into machination and administration, politics can emergence to uphold a hegemonic closure, and the effect can only be one of cruelty for those standing on the margins of the rule of law (i.e.: virtue of being citizens). This is very clear if one reads attentively a series of academic articles that Kobach published in 2008, all of them treating the problem of illegal immigration and offering radical solutions.

​In “Reinforcing the Rule: What States can do to stop illegal immigration” (2008), Kobach begins with the Freedmanian premise that a contemporary state cannot be a welfare state and have free migration at the same time. He immediately lays out a detailed set of provisions recommending how states and local authorities could tighten migratory restrictions in order to exert what he calls in another article “attrition through enforcement”: removing social protections, drivers licenses, and higher state education grants to illegal residents. Kobach writes these articles in the wake of the terrorist attacks of 2001, and in fact, he begins most of them considering illegal migrants and refugees always already as potential terrorists. Kobach’s implicit response to the crisis of democratic legitimacy hinges on three forms of reactionary legal-political tactics: first a fiscal premise, in which an immigrant is not considered a subject for the expansion of citizenship, but as a burden to taxpayers. Hence, the only possible solution is self-deportation as a more efficient solution than amnesty (Kobach 2008).

Secondly, he draws on a legal argument that asks the Federal State to become activist at local and state levels. This is a novel political transformation of in United States, since until the 1960s, Republicans and conservatives ideologues favored states rights, and this made sense during the decades of Jim Crow in the South as a way to ‘resist’ the national government anti-segregation laws passed in the 1950s in the Warren Court (Brown vs. BOE). But today, someone like Kobach emerges as a “Conservative Hamiltonian” who incites states to subordinate their federal sovereignty to the national government. In part, Kobach is implicitly responding to the unavoidable presence of the administrative state, recoiling to the national government vis-à-vis emergency statutes, in order to act politically in the face of bureaucratic neutralization. His dismissal of amnesty, for example, is predicated on a hatred for what he takes to be costly disputed management within bureaucracies. Thirdly, and perhaps more importantly, Kobach perceives citizenship as an assault on a fictive national identity, which is informed after Huntington’s last book Who Are We?: The Challenges to America’s National Identity (2005).

Forward to the present: Kobach heads Trump’s executive order to establish a Voter Freud Commission, which limits minorities voting access rights and imposes severe registration restrictions for specific electoral filtering under the veneer of anti-freud security. In the wake of Shelby County vs. Holder, which aggressively limited Article V of the Civil Rights Act of 1965, Kobach emerges as an archaic regression of a reactive populism. This is a new politics for and in hegemony while facing bureaucracy, in which cruelty becomes the principle for the logic of inclusion-exclusion mechanism in the polity. As the “People” disappear as a unifying political principle, the hegemonic phantasm of identity and police take the scene.

3. Posthegemonic populism in a constitutional regime

How do we move from the exhaustion of popular sovereignty, as we face the objective and unmovable administrative state and external reactive policing, as the Janus face of a dual hegemonic arrangement? To start, allow me to quote here Bruce Ackerman who asks a similar question in the last chapter “Betrayal?” of his We The People: Civil Rights Revolution (2013), in which he is lamenting decision of the Roberts Court to overturn Article V of the Civil Rights Acts that protects minority voting rights:

“If we hope to sustain the tradition of popular sovereignty into a new century, we cannot afford to cast these leaders as tired epigones living off the constitutional heritage left by the giants of an ever-receding past. We should be reflecting on their achievements – both in adopting New Deal modals to speak for the People and in moving beyond the Frist Reconstruction to establish new egalitarian principles for the modern age” (Ackerman 316)

Following this, Ackerman notes, however, that any hopes for an activist Supreme Court is exhausted, and there is no hope in the horizon that an activist Court will rise to the central scene once again. First all, because the judicial activism was perhaps an epochal reflection that we associate with the Warren Court. But the rise of such decisions was expressions of complex political defeats and contentions of an epoch, now long gone [9]. The administrative state has displaced Court’s hegemony to dynamically play a substantial role in assuming the task of thinking the present under the “living constitution”. This is an epochal transformation of the legal tradition in United States, and which could perhaps inform mirroring problems in Western democracies as we confront new rising Leviathans of equivalences, in which corporations can speak or become persons, and citizens deprived of their legal status become bare persons. I think the pressing question to ask is the following: can constitutionalism become a new form of legitimation amidst the crisis of legitimacy of democracy?

According to scholars such as Bruce Ackerman and Dieter Grimm, constitutionalism as a form of legitimation has been on the rise, since the end of the Second World War (Ackerman 2008 & Grimm 2014). It is worthwhile noting, for example, that Max Weber did not include constitutions or constitutionalism in his typology of legitimacy. Rather, Weber favored charismatic leadership in the spearheaded figure of the President, which can guarantee democracy in the face of factions and the Congress (Weber 1987). Today this is no longer so. The Weberian charismatic figure can rise today to legitimacy only on behalf of the administrative state as best possible case scenario, as Justice Elena Kagan makes the case for in her article “The Presidential Administration”.

If a new constitutionalism is predicated in old categories of the legacy of modern political thought, I do not think we could advance forward. This is why, for me, to the extent that constitutionalism is a project for democratic institutionalism it demands what I call a posthegemonic populism, slightly modifying, but carrying forward Alberto Moreiras’ important notion of marrano populism (Moreiras 2017). Against hegemonic charismatic leadership from above, and dispersed mechanistic administrative state, a posthegemonic populism as a regime of constitutionalism is the only guarantee of democratic reinvention in the post-popular sovereignty epoch.

By calling it a regime, I want to take a distance from the constitution as a firm mold to just restrain governmental power. There is no doubt that constitutions not only consolidate rules, but in a commanding way, allow governments to exist to enact mechanisms create order and authority. Let me turn here to Jeremy Waldron’s essay “Constitutionalism: a skeptical view”, where he proposes that we move from a constitutionalism of restrains to one that “empowers those who would otherwise be powerless, the ordinary people with in most polities are the subject, not the agents of political power” (Waldron 37).

I agree with Waldron’s turn from a constitution of counter-majoritarian restrains to one of singular empowerment, and I also accept his intuition that “popular sovereignty can be the source of nondemocratic government” (Waldron 37). I will take issue with Waldron’s stance to the extent that he continues to address popular sovereignty as just a concept: in a way, as if popular sovereignty is nothing but a term in dry ink on paper after the administrative state and the equivalence between corporations, money, and citizens. His constitutionalism is still one of a design for / of the “citizen”. That is why Waldron does not address the question of legitimacy or that of the administrative state. He can only favor a constitutionalism as a concept in the shadow of the People. Let me quote Waldron at length in the closing of his essay, where he takes a clear anti-populist position:

“…popular sovereignty is not always a stable position, even as an account of constitutional origins. In America, a great many constitutionalists are as comfortable talking about “the Framers” and their extraordinary virtue— which is a decidedly nonpopulist conception—as they are talking about popular sovereignty. They will scramble back to the rhetoric of popular sovereignty whenever they feel the need to give constitutional limits and restraints credentials that can stand up to those of the legislative enactments they are supposed to strike down. But their true view of constitutional origins reveals itself as a decidedly aristocratic conception” (Waldron 39).

Here I bracket the ‘originalist’ component of Waldron’s claim, and move on to what I see as the limitation of this position, which analogously allow us to press forward. It is of little interests if the Framers were believes in popular sovereignty (Ackerman), or defenders of Royalism (Nelson). What is important, is a living constitutionalism that can emergence in the wake of the end of popular sovereignty, against hegemonic positions; whether presidentialist, identitarian, or administrative. In all of these three tracks, the People have been erased from the scene. If we accept that populism is a latent expression of democratic deliberation at any given time, always oppositional to an elite, then the solution to Waldron’s skepticism is posthegemonic populism in a constitutional design.

Whereas I think that constitutionalism without posthegemony is blind in practice, I also think that posthegemony without constitutionalism is shortsighted in time. What constitutionalism provides to populism is a temporal register: a horizontal line to institutionalize demotic time against archaic forces of regression in the economic and political spheres. Posthegemonic populism faces the crisis of popular sovereignty and the equivalent machination of the citizen, as a relay for a transitional phase for a possible democratic reinvention. Posthegemony is, in this sense, the figure that allows for a democracy vis-à-vis populism without succumbing to telic and vertical form of hegemony.

How is this to be done practically, if praxis was, in fact, absent in Waldron’s idolatrous separation of powers unifying popular sovereignty? In this conjuncture I think that constitutionalism plays a temporal dimension of democratic legitimacy, and federalism a dynamic republicanist “living” form against hegemonic phantasies. First of all, because federalism is irreducible to sovereignty, which entails an always contingent and uncooperative dissenting nature (Amar 1987 & Gerken 2008). The are two scenarios where this is plays out in the present, and which I will to elaborate in forthcoming essay: 1. Sanctuary cities and legal defense clinics at state levels in United States, 2. the aftermath of errejonismo in Spain, where after Errejón lost to Iglesias in Vistalegre2, “transversality” is being assimilated in the political design of the autonomy of Murcia, in what is an evident tactic of ‘uncooperative federalism’ against Iglesias’ vertical unity. This does not mean that “transversality” is posthegemonic, and Errejón insistance on building a ‘Pueblo’ is a symptom of an impasse. What we are trying to push errejonismo in a post-hegemonic transversality, where hegemony is abandoned as a way for democratic breakthrough (Muñoz 2017).

Federalism is the practical space by which a posthegemonic populism can be concretely elaborated at an epochal of impasse, dominated by efforts of hegemonic machination of the administrative state, even its Presidentialist phase, and the vertical politization of identity. In this light, only a populism without hegemony can return democracy to a dignity that is infra-political in nature; where democracy is irreducible to the political. This amounts to a transformative turn towards a legitimacy that does requires neither hegemonies nor eschatological awaiting to cover up the void at the center of our epoch.

 

 

 
Notes

1. See here the pieces against hegemonic populism, by Villacañas (2017), Moreiras (2017), and Muñoz (2017) in the context of Podemos in Spain. This exchange took place during a workshop on Populism held at Princeton University, April 4, 2017.

2. I thank Peter Baker for a conversation on this precise point, and who has elaborated this in his essay “Politics of the Multitude”, also read in this conference.

3. Take, as an example, Giorgio Agamben in Il Misterio del male (2013) who argues that all institutions in the West are undergoing a crisis of legitimacy. However, in order to contest such illegitimacy, Agamben portrays Benedict XVI in an eschatological time that is “inherently political”. Agamben writes: “Powers and institutions are not legitimate today because they have fallen into illegality; rather the contrary is true, namely that illegality is so diffuse and generalized because the powers have lost all awareness of their legitimacy…a crisis that affects legitimacy cannot be resolved solely on the level of law”. But as a trade off for law, Agamben offers a metapolitics of salvation. But as Villacañas as shown (2016), legitimacy needs not hegemony or metapolitics. See my review “Illegitimacy? On Giorgio Agamben’s The Mystery of Evil” (2017). The discarding of institutions in political theory has being recently criticized by Jeremy Waldron (2016).

4. Bruce Ackerman. The Decline and Fall of the American Republic (2014), 87-116 pp.

5. Arthur Schlesinger Jr. The Imperial Presidency. New York: Houghton Mifflin, 1974.

6. Moreiras has argued that posthegemony opens up a destiny without calculation, undecidible: “Quizás la practica poshegemónica no es mas que compulsión de destino en la teoría: el intento poslibidinal de retorno a un estado previo…Su única compensación – pero también la sombra de su politicidad efectiva – es que, buscando la manera de producir su propia muerte, la pulsión poshegemónica lucha contra toda muerte impuesta, es decir, contra la invención libidinal del otro sujeto. También aquí el ethos es daimon”. 140 pp.

7. See, The referendum: direct democracy in Switzerland (1993), and Political capital: the motives, tactics, and goals of politicized businesses in South Africa (1990).

8. Judith Shklar (1984): “Moreover, society did not depend on personal virtue for its survival. A society of complete villains would be glued together just as well as ours, and would be no worse in general. Not morality, but physical need and laws, even the most ferocious, keep us together. After years of religious strife, Montaigne’s mind was a miniature civil war…But his jumble of political perceptions reflected not intellectual failure, but a refusal to accept either the comforts of political passivity or of Machiavelli’s platitudes”. 37 pp.

9. Laura Kalman has recalled how the epithet “activist court” emerged during the politized years of the LBJ Presidency and Abe Fortas. See her new The Long Reach of The Sixties: LBJ, Nixon, and The Making of the Contemporary Supreme Court (2017). 252-307 pp.

A Friendly Katechon: on Adam Joseph Shellhorse’s Anti-Literature: The Politics and Limits of Representation in Modern Brazil and Argentina. By Gerardo Muñoz.

shellhorse 2017Adam Joseph Shellhorse’s Anti-Literature: The Politics and Limits of Representation in Modern Brazil and Argentina (U Pitt Press, 2017) is a bold and timely intervention in a dire moment for “literary studies” in the field of Latin American Studies. What is the epistemological status of the ‘literary’ today, if not an ambiguous force driven by machinistic inertia? The institutional erosion of the discipline’s legitimacy cannot easily be ignored, as every scholar is confronted today with interrogative demands for ‘definition’. Ambitious in scope, theoretically sophisticated, and generous in its readings of a heterogeneous corpus, Shellhorse attempts to understand “what is meant by “literature in contemporary posthegemonic times” (Shellhorse 3). Whether such interrogation opens up a desirable future, is the very heart of this important book.

Anti-Literature departs from the wake of the exhaustion of a well known triad: the Boom as a last attempt to generate a strong allegorical machine; Ángel Rama’s culturalist thinking to come to grip with the uneven development through transculturation; and the political vanguard experiment of the Cuban Revolution in 1959. The aftermath of these watershed moments has led to what is now a permanent state of crisis. The end of ‘hegemony’ in Shellhorse’s reflection demands the end of the centralized state form of the literary, but also the turning away from models of ideological Marxist critique, over that of affect, the multiple, and the experimental in writing. Compensatory to this insolvent condition, Shellhorse proposes ‘anti-literature’ as a new framework for literary studies. Although, more urgently, it offers the minimal condition for the task of reading in a present devoid of objective legitimacy, or what Shellhorse calls, perhaps more prudently, a ‘perilous present’ (Shellhorse 16).

The archive Shellhorse attends to is minimalist, functioning hyperbolically for a larger and more programmatic invitation to read in the anti-literature key. The works sketched throughout the book are the following: Lispector’s language of life and the specular feminism of immanence; David Viñas’ ‘half made literature’ as a de-spiritualized materialist gesture in his novel Dar la cara (1962); concrete poetry as a post-culturalist and post-conceptual artifact; Haroldo de Campos and Osman Lins’ poetics of the baroque; and last but not least, a mediation on historical redemption and the messianic in Salgado’s photography and De Campos’ poem “O anjo esquerdo da historia”. Irreducible in style and geopolitical demarcations, all these anti-literary projects negotiate language within the limits of its own materiality while assuming a writing of finitude. This is crucial, as it is what distinguishes Shellhorse’ anti-literature from John Beverley’s known ‘against literature’.

Whereas Beverley demanded an exception to literary hegemony in the name of a subalternist ‘subject’ formalized in the testimonio, Shellhorse’s following Moreiras’ predicament on exhaustion, does not seek to close off the promise and secret of literature, but only to interrupt its identitarian and representational pretensions (Shellhorse 42). Therefore, against the Boom as an ideological critique towards state building on one hand, and testimonio as exception to high literary sovereignty on the other, Shellhorse proposes anti-literature as posthegemonic experimentation through affect and the sensorium. Whereas testimonio demanded hegemonic filiation until the triumphant victory, anti-literature endorses the post-hegemonic in the face of defeat. Anti-literature is only anti-literary to the extent that it demands a relation to the secret of ‘what might come’. This is why Shellhorse’ Anti-Literature is untimely tied to literature as a singular procedure of writing, instead of organizing a counter-canon, in what could be taken as an effort to immunize itself through an alternate ‘aesthetic form’. This is why, it is important that Shellhorse tells us very late in the book:

“…it could be said that anti-literary writers hook up writing to literature’s outside, to nonwriting and egalitarian modes of imaging the community. What is at issue is precisely this: the concept of anti-literature need not restrict itself to an avant-garde, modernist paradigm of the arts. Rather an approach to the anti-literary entails reconceptualizing the problem of writing as a sensory procedure and perpetual force. The question of what is anti-literature can perhaps best be posed only in the wake of literature’s exhaustion, when the arrival of defeatist accounts demands the time for speaking concretely” (Shellhorse 164).

This comes as a warning to careless readers who, perhaps too hazily, will try to inseminate periodical categories of sociology or history of literature to ensure the timelessness of the boundaries of literature’s autonomy. Indeed, Shellhorse immediately writes: “Indeed, bibliography on the nature of literature in the field is marginal” (Shellhorse 164). We can only guess that the very asymmetry between an understudied Argentine writer (Viñas), ranked among giants of modern Brazilian literature (Andrade, De Campos brothers, Lispector), functions as the affective corpus of Shellhorse’s own singular judgment. This is his secret posthegemonic cabinet, just like everyone has his or her own.

By taking distance from an overdetermination based on a ‘historical period’ or a particular ‘literary movement’, Shellhorse performs his own affective caesura against the hegemonic temptation that demands age-old historico-metaphysical entelechies; such as periodization, social context, base/superstructure dichotomy, form, or aesthetic framework. If the book’s starting point is the fall of the legitimacy of Latinamericanism or Hispanism at large, this means that there is no calculative arrangement that can sustain the alleged bona fide of ‘literature’. The polyphonic assemblage regime of tones and signs is also irreducible to a life, to any life, that belongs to the student and professor of literature in the exercise of the imagination. And as I see it, this is what the anti-literature tries to register so suitably to us.

Yet, at first sight there appears as a latent paradox in the book, and it is a problem that I would like to convey, since it remains of one the strong effects of its reading upon me. Of course, I can only hope to solve it in my own name and style, and I hope that others find their own ways to wrestle with the problem. Basically, the problem could be advanced in this way: if we are in a present condition of interregnum, of the total transitional epoch in the field within a larger transformation that Moreiras has called full machination through the principle of general equivalence, where anything is replaceable and interchangeable, why does the book offers yet another frame to re-invent literary studies? [1]. What is the need of literature at a time in which it can no longer speak for itself (the ‘being’ of Literature)? Isn’t the literary today a mere defunct fossilized object, a repetition for commemorations, and museum-like artifact that only seeks the stimuli of social-media to imagine itself Eternal? Literature automatically wants to be part of the ‘museum’, but the trade-off is that the museification of the new demands its own concrete death. It is difficult to name anything interesting in contemporary literature (nothing that can compare with the Boom), and the fact that we keep reading Lezama Lima or Haroldo de Campos or Borges, bears witness to the aftereffect of being able to establish some livable relation with nihilism at the end of literature. Shellhorse does well to inscribe this important symptom in a crucial moment at the end of the book, which opens to an important discussion:

“If “literature” persists in crisis in our field, the task today is to reconstitute its critical force. Literature becomes anti-literature when it subverts itself. My contention is that it is only by bearing witness to this relation of non-essence, non-identify, and non-closure – literature is not literature – that we can begin to read anew” (Shellhorse 166).

I would like to advance the thesis that Anti-literature as a project comes to us in the form of what I would call a friendly katechon. While it is clear that Shellhorse is not proposing a new “turn” beyond literature, anti-literature is not just repetition of the same as the new. To do so would be “old”, since it would be integral to the register of High Modernity up to the readymade, that is, to the museum. Rather, anti-literature is something akin to a shadow that overlaps in what we call “literature”; a sort of dirty stain in the tradition and in the immemorial institutionality of texts. At same time, anti-literature has a reformist undertone, in the theological sense of celebration and transformation through transference.

But it is a katechon to the extent that Anti-literature retains and delays the temporal disappearance of the evermore so irrelevance of literature. As we know, the Pauline Greek word katechon (κατέχον) means restrainer (who or what), a mysterious force that helps avoiding the fall unto the anomia that imposes illegitimacy in any particular historical epoch. Although at times the katechon is understood in tandem with its own archaic regression, I do not think this is Shellhorse’s intention or effect in inviting us to partake in Anti-literature to “begin anew”. The reason is fairly simple: to the extent that we have literature, there is always already excess to every hegemonic phantasm, and that is enough to retain literature as a residual condition for thought, even when we move beyond textualism or politization.

Like Carl Schmitt, who appears in Ex captivate salus, as the last conscious representative of Modern European Law of Nations, Shellhorse appears to us as the last existential witness of the literary in the form of the anti-literary. But like an Anti-Schmittian, he does not succumb in the myth of political theology and Empire. His katechon can only be one of friendship: in the love of the text, and for the friendship of an-other to come. Anyone, at any time. But isn’t this a mirror of the measureless principle of democracy? The friendly katechon does not seek what Nietzsche called the antiquarian relation to History, but rather a reflexive and disinterested democratic thinking. The katechon, in the platonic reading that I favor here, thoroughly deters disintegration of the authentic life of the mind, which is consistent with Lispector’s language of life [2]. That is, literature is no longer revealed as accumulation and principle (archē of the archive), but as homecoming of Justice. Shellhorse explicitly sets foot on this trail this in his reading of De Campos at the very end of the book (which I would like also to de-center from the given messianism):

“Such a field no doubt defines the logic of domination. Justice as a continuous line of singularities: blurs, bends back, and breaks up the reified character of social relations as well as banal accounts of “progress” that fail to count the part that has no part in society. Citable in all their moments, as freed expressions that articulate the desire to be exception, to think the relationless relation, the affective dimension of Campos’ text inscribe the crisis of poetry in the wake of subaltern tragedy” (Shellhorse 196).

But can the Poem be a secondary substitute before the ruin, a safeguard against tripping into the abyss? It is useful to paraphrase Derrida here to remember that, neither the poem nor deus absconditus, neither decorative baroque nor the messianic community, neither the experimental sensorium nor philosophy of history, can exert as hyperbolic condition of any possible living democratic construction [3]. This is only literature’s task. Anti-literature as friendly katechon, keeps this unavowable promise as its dearest secret that nourishes from the democratic expectancy in an incalculable waiting. A politics among friends? It could well be, but only with the caveat that like friends, literature also comes like a stranger late in the day. Will it come again? All of this to say that anti-literature resists succumbing in the nihilistic abyss of equivalence as the last avatar of the contemporary university’s death-drive. The friendly invitation of anti-literature confronts us, once more, as a lux acarna. We only hope that it is not too late, and that another path could open in the very place of what has always been.

 

 

 

 

 Notes

1. Alberto Moreiras. “Universidad. Principio de Equivalencia”. Enero 17, 2017. https://infrapolitica.wordpress.com/2017/01/17/universidad-y-principio-de-equivalencia-hacia-el-fin-de-la-alta-alegoria-borrador-de-conferencia-para-17-instituto-de-estudios-criticos-mexico-df-22-de-enero-2017-por-alberto-moreiras/

2. For example, at one point the baroque/ neo-baroque appears as a trope for anti-literature. In my account, this will amount to the ‘catholic’ affirmation the katechon, raising its status in a complexio oppositorum between archaic and an-archy of the eschatology, which is always political theology. Consider this passage cited from Haroldo de Campos: “…Brazilian culture was born under the sign of the baroque…it cannot be understood from ontological, substantialist, metaphysical point of view. It should not be understood from an ontological, substantialist, metaphysical point of view. It should not be understood in the sense of an idealist quest for “identity” or “national” character. Baroque, paradoxically, means non-infancy. The concept of “origin” here will only fit if it does not imply the idea of “genesis”, of a generative process with a beginning, middle, and maturity…Baroque is, therefore, a non-origin. A non-infancy. Our literature, springing up from the baroque vortex, was never aphastic; it has never developed from a speechless, aphasic-infantile limbo in the fullness of discourse”. 115 pp. The baroque as literary form, even deprived of genesis, seems to lead stray into the “frame” whether in transcendental or immanentist planes of the modern metaphysics of the political.

3. Panagiotis Christias has recently offered a very interesting reading of the figure of the katechon in a platonic key, in which he suggests that the restrainer stands against potential rise of tyranny, thus making the Philosopher, the Greek antecedent of the katechon fearing the disintegration of the polis. To what extent philosophy can deter anomia today is a completely different question. I am interested in the figure of the Philosopher as metonymic for life as it converges with passion without sacrifice. See, Platon et Paul au bord de l’abîme. Pour une politique katéchontique (2014).

Illegitimacy? Review of Giorgio Agamben’s The Mystery of Evil: Benedict XVI and the End of Days. By Gerardo Muñoz.

agamben mystery 2017Giorgio Agamben’s Il mistero del male, now translated in English as The Mystery of Evil: Benedict XVI and the End of Days (Stanford U Press, 2017), is an intense repudiation of the mundane legitimacy of every institution, costume, and political structure hitherto existing on earth. For Agamben, the decline towards illegitimacy has not been a matter of a few years or decades, but part of a larger inherited drama. The core of the book reads Benedict XVI’s “great refusal” as an ‘exemplary act’ [sic] against the Church, bringing to awareness a vital “loss of substantial legitimacy” (Agamben 3). Overstating the dual structure characteristic to Western governmentality – potestas and autorictas, or economy and mystery, legality and legitimacy – Agamben asserts that Ratzinger’s gesture cuts through the very thicket of the ekklesia arcanum, reversing the mystery of faith in time to the point of abandoning the very vicarship of Christ (Agamben 5). Of course, this comes as no surprise to those that have engaged with his prior The Kingdom and the Glory (2011), where Agamben interprets the Trinity as a stasiological foundation of an oikonomia that plays out (vicariously) as a praxis without Being [1].

In many ways, this essay is supplemental to the larger turn already undertaken in The Kingdom, only that this time, Agamben brings to focus a seminal institution of the Western political tradition. Here Agamben seems to be pressing more heavily on the state of global affairs in which the Church is a metonymy: “…if this gesture interests us, this certainly is not solely insofar as it refers to a problem internal to the Church, but much more because it allows us to focus on a genuinely political theme, that of justice, which like legitimacy cannot be the eliminated from the praxis of our society” (Agamben 16-17). This is consistent with overall structure of The Kingdom, by which the structure of the oikonomia is understood vis-à-vis the true ‘providential machine’ of human administration. So every administrative structure is illegitimate, since for Agamben, it governs through de-substantial vicarious being. It is a true ‘kakokenodicy’ (referring to the emptying) that can only justify effective evil (Agamben 36). To the extent that Agamben’s overarching project seeks to establish a responsive unity to the problem of discessio or internal division, it is not difficult to grasp how Benedict XVI’s return to Tyconius’ obscure thesis of the Church composite of good and evil is highly relevant, as we shall see.

We are far from Augustine’s City of God, where the split was produced between two cities, allowing for what Erik Peterson understood, against Schmitt, as the impossibility of any political theology. Tyconius is, in a sort of way, the persistence of an Anti-Augustinian gnosis. Agamben’s effort, let’s be clear, tries to make Augustine a son of Tyconius, which makes it even more mysterious; since whereas Augustine separated Church and Empire, Tyconius separates evil and good in the temporal katechontic nature of the Church (Agamben 10-11). Agamben cites Illich’s testimony to claim that the Church is always already mysterium iniquitatis as corruption optima pessima (the worst possible corruption of the best). But once again, Agamben seems to be forcing positions, since whereas for Illich the Church, consistent with Augustine, allowed for ius refomandi (reform), Agamben posits discessio as the arche of the corporeal Church, in this way reintroducing the myth of political theology to stage the mysterical drama of History.

In a strange sense, the mystery is not that mysterious. It becomes messianic eschatology on reserve. According to Agamben’s narrative, the Church as a dual nature of opposites, possesses an internal stasis between a temporal restrainer (katechon), the evil that runs counter to against law’s integrity (anomos), and the eschatological dimension of the End. This last character points to the Pauline’ messianicity, which allows Agamben to link Benjamin and Tyconius’ in a common salvific structure. As he writes: “The mysterium iniquitatis…is a historical drama, which is underway in every instant, so to speak, and in which the destiny of humanity, the salvation or fall of human beings, is always at stake.” (Agamben 14). Benedict XVI is a counter-katechon, as he is able to reveal, in his exodus, the eschatological structure that leaves behind the vicarious economy. According to Agamben, Benedict XVI’s message was “nothing but the capacity to keep oneself connected to one’s own end” (Agamben 16).

On the reverse, this entails subscribing a messianic turning of life from within the Church in order to posit a metapolitical form without remainder. The renunciation of the katechon implies that we are left with an economy (oikonomia) devoid of legitimacy. The central problem here is that history itself has become mystery of the economy, instead of an economy of mystery, which is the Pauline arche. What compensates for this illegitimacy becomes messianic politics that “does not remain a mere idea, entirely inert and impotent in the face of law and economy, but succeeds in finding political expression in a force capable of counter-balancing the progressing leaving out onto a single technico-economic plane of the two coordinated but radically heterogeneous principles [legitimacy and legality] that constitutes the most preciouses patrimony of European culture” (Agamben 18).

But if the machine of governance of the West is dual, playing legitimacy and legality in a skirmish co-dependency, why does Agamben conflate the renewal of legitimacy to the coming of a new politics? The reason seems to be that once you accept the condition that what exhausts government is an economical structure of the Christian katechon, you can then accept as exodus a metapolitics of salvation. What is interesting is that this politics, seemingly against Schmitt, actually re-enacts the same movement for an exact, albeit reverse, political trade-off. Agamben does not follow Peterson here. Let us recall that Peterson’s argument was never that the Church is an oikonomia, but that Schmitt’s totalizing and unifying political theology applied not to the Church, but only to Empire. This principial politics, as we know, has always led to catastrophic dominance, from Rome to Christian Monarchy to Nazi Germany. Counter to Schmitt, Agamben wants to produce not an imperial katechon, but “a time of the end, [where] mystery and history correspond without remainder” (Agamben 30).

The problem becomes that in order to set the stage for such “drama”, Agamben needs to avoid at all costs the Augustinian/Petersonian split of the Church in its facticity (as it actually happened). This explains why, in the second essay, history is understood as mysterical. In this context, it is noteworthy that Peterson is fully absent, even though he famously authored the essay “The Church”. There he writes in an important passage:

“The worship the Church celebrates is public worship and not a celebration of the mysterious; it is an obligatory public work, a leitourgia, and not an initiation dependent on voluntary judgment. The public-legal character of Christian worship reflects the fact that the church stands much closer to political entities like kingdom and polis, rather than voluntary associations and unions” [2].

I highlight Peterson’s reference to the “the mysterious”, because this is an explicit polemical stance against Casel, the Benedictine monk that informs Agamben’s mysterical adventure in history. But this has important implications, only two of which I will register here. First, accepting Casel’s mysterical Church leads us to conclude that internal worldly illegitimacy requires that we embrace a messianic politics ‘again’ (Agamben 38). In fact, politics is ultimate salvation in Tyconius, Casal, and Benjamin.

Secondly, mysterical historicity demands voluntary filiation. Agamben lays this out in plain sight: “it is in this drama, always underway, that all are called to play their part without reservation and ambiguity” (Agamben 39). Messianism forces agonic politics, displacing administrative vicarship with a conceptual theodicy. But profane life does not need to coincide with or abdicate a metapolitics of salvation. Now, if this is so, perhaps the accusation raised against governmental structure as illegitimate is in itself not legitimate. What if instead of being on the side of the metapolitics of the eschatological mystery, legitimacy is nothing other than the internal rational enactment of the separation of the profane that is always taking place in the world?

 

 

Notes

  1. Agamben writes in The Kingdom and the Glory (2011): “And, more generally, the intra-Trinitarian relation between the Father and the Son can be considered to be the theological paradigm of every potestas vicaria, in which every act of the vicar is considered to be a manifestation of the will of the one who is represented by him. And yet, as we have seen, the an-archic character of the Son, who is not founded ontologically in the Father, is essential to the Trinitarian economy. That is, the Trinitarian economy is the expression of an anarchic power and being that circulates among the three persons according to an essentially vicarious paradigm… The mystery of being and of the deity coincides entirely with its “economical” mystery. There is no substance of power, but only an “economy,” only a “government.” 138-39 pp.
  2. Erik Peterson. “The Church”. Theological Tractates (Stanford U Press, 2011). 38 pp.

 

Legitimacy and the administrative state. By Gerardo Muñoz.

To follow up on my previous responses (that can be read here and here) in conversation with José Luis Villacañas’ lecture on Weber and populism, I want to return one more time to the question of legitimacy. I do not want to repeat what I have already said in the other commentaries, rather this time I want to specify the nexus between the administrative state and legitimacy. That is the purpose of this commentary, anticipating a more elaborate presentation of this problem in an upcoming conference at the University of Rome.

The heart of the problem can be laid out in a straightforward manner: is the administrative state legitimate? And if so, from where does the administrative state derive its legitimacy? For a moment I’ll leave aside the fact that for a wide range of legal scholarship, bureaucratic order itself is a material source of legitimation, in part because administration purports separation of the private/public spheres, and deters corruption, thus upholding the well-being of the social. But this answer is in itself tautological and needs of descriptive substance.

Here I find Adrian Vermeule’s typology of the legitimatization of the administrative state helpful and pertinent for a number of reasons. For one, it allows me to affirm my position in this debate [1]. As Vermeule fleshes out, the question of legitimacy of the administrative state is not new, and only recently – that is, the post-Reagan period, once the Federalist Society began having effective impact in the wake of the Neo-Conservative movement – has the legitimacy of the administrative state been challenged on the basis of it being inconsistent with the separation of powers (Epstein 2008, Hamburger 2014).

I cannot go into details about the reason of this development in the space of this commentary. Let me jump right into the analysis. Vermeule notes that the way in which the legitimacy of the administrative state has been posited – from the New Dealers of the 1930s to the current Supreme Court – takes different paths to understanding the core problem of “independence”. This is of no minor importance, since independence of the legislative deference and execution of an agency statute, has everything to do with what Moreiras and Villacañas understand as the reduction of the factual condition of domination. This is also a crucial premise as to move in the direction of a posthegemonic democracy, regardless of how it is defined and developed in each case.

Vermeule insists that “independence” has a heterogeneous form of legitimation of the administrative state in three main tracks (it does not mean that there are only three, but at least these have been highly influential): 1. the one posited by James Landis in Administrative Process (1938) who sought to provide independence of the administrative agency from the executive power; 2. Louis Jaffe’s formulaic deference of a strong position of independent judicial review of agencies; 3. Kagan’s inversion of Landis, who in the early 2001, interprets “independence” of the President against interests groups, or crony interest-restricted legislators. Regardless of the different premises and relational valences of these forms of administrative law, I agree with Vermeule that they affirm a common and perhaps dual legitimization value: to establish independence and internal legal pluralism.

There is good and bad news here for Republicanism. First, the bad news: the forms of legitimization of administrative law emerge in the wake of the crisis of the traditional Madisonian division of powers. However, the crisis of the archaic formulation should not produce neither horror nor nostalgia. In any case, this is an aspect that must be discussed after Villacañas’ own philosophical defense of the division of powers in genealogy of the Western tradition in his Teología Política Imperial (Trotta, 2006). As for the good news: the hermeneutics of administrative legitimation are affirmed on the ground of the equilibrium and an internal pluralism, which is how Vermeule establishes his stance against contemporary anti-administrative libertarians. This entails that the administrative state is not the abdication of the rule of law in a drift towards tyranny or unpopular rule, but rather part of an elastic historical development in a complex field of tensions [2].

Why is this important for thinking populism today? For one, because Villacañas’ Weberian position even when placed in the “factual grid” of the administrative state, perfectly convergences with Elena Kagan’s position (the third path of legitimation). In fact, Vermeule describes Kagan’s most important and enduring contribution in a way that we could also ascribe to Villacañas:

“A constitutional vision that attempt to combined two intellectual and constitutional strands that had often been assumed to be in tension with one another, or even outright contrition. The first strand was technical administration, whose major tool is quantified cost-benefit analysis; the second was Hamiltonian political leadership by an energetic elected President, who hallmark is accountability to a broad national public” (Vermeule 18).

This is precisely what Villacañas’ response to me meant regarding the potential dismissal (in Castilian: “la patatada en el culo”) of the charismatic leader when he fails to meet the material needs of the People. In effect, this is completely consistent with Weber’s defense of presidentialism in “The Reich President” (not really the same as “charismatic leadership”), as a form of the checking the bureaucracy in line with the Hamiltonian vision of the modern state [3]. So, here is the big picture: whereas Landis favored anti-Presidentialist stance during New Deal legislation, in the case of Kagan it is the figure of the President that can advance the needs of the People in any given circumstance. It is interestingly enough that President Obama (who was a constitutionalist) followed more the track of Landis and not that of Kagan.

It is clear why Kagan needs to embrace a thin margin of presidentialism as a process of legitimation, since to do so entails reducing the ascending problem of factionalism, narrow interests, bad administration, or even more recent problems such as big financial conglomerates (Vermeule 23). Here the contending debate between populism as charismatic leadership (Villacañas), and an anarchic populism (Moreiras) on the other is also properly defined. Whereas I agree with Kagan and Villacañas that presidentialism could buffer certain corporate interests (“la casta”, in Podemos is a perfect example) and the weight of agencies, I also agree with Moreiras that then this could only mean that the “President” is no longer a political figure, but rather a mere administrator, a gestor [4]. The President becomes the perfect justification of an Enlightened monarch (in a phrase revered by Peterson in his response against Schmitt’ political theology): the King rules but does not govern. But I would add, he does function as a filter for what Vermeule calls “accountability to a broad national public”, which is synonymous with what Villacañas calls the “material interests of the People”.

I end with a question to align a few problems for further investigation: if the President is a mere filter in a complex structure that is the political fabric of the administrative state today, isn’t he already a sort of de-centralized and an-archic figure? Also: can there be, for instance, a concrete moment of demand of the People if there are only administrative agencies? Only placed in this backdrop does posthegemonic populism becomes clear: neither effective administrative law without the expansion of the democratic demand, nor effective or defective presidentialism. After all, no threat of factionalism has been tamed from a secure position of leadership without, at the same time, necessarily bending towards the expansion of its own (imperial) hegemony, which always amounts to the phantasm of a corrupted legitimacy.

 

 

 

Notes

  1. Adrian Vermeule. “Bureaucracy and Distrust: Landis, Jaffe, and Kagan on the Administrative State”. Forthcoming, Harvard Law Review, 2017.
  1. For Adrian Vermeule, the crisis of legitimacy is actually is greatest strength. See, “What Legitimacy Crisis?” CATO UNBOUND (May 9, 2016). https://www.- cato-unbound.org/2016/05/09/adrian-vermeule/what-legitimacy-crisis
  1. Max Weber presents in “The Reich President” (Social Research, 1987) a defense of presidentialism that is the principle to both Villacañas and Kagan: “For the great movement of democratic party life which develops alongside these popular elections will benefit parliament as well. A president elected by means of particular constellations and coalitions of parties is politically a dead man when these constellations shift. A popularly elected president as head of the executive, head of office patronage, and perhaps possessor of a delaying veto and of the authority to dissolve parliament and to call referenda, is the guarantor of true democracy, which means not feeble surrender to cliques but subjection to leaders chosen by the people them.” 132 pp.
  1. Alberto Moreiras: “Este es por lo tanto un populismo sin líderes (o sin líderes en función hegemónica), es decir, un populismo en el que la posición de líder—el notorio “significante vacío”—está ocupada por el gestor de la radicalidad democrática, y solo por él o ella en cada caso, a cualquier nivel administrativo (seguir llamando a ese “gestor de la radicalidad democrática” líder, o jefe, o caudillo, sería un capricho arbitrario).”. “La hipótesis Podemos”. https://infrapolitica.wordpress.com/2017/04/09/la-hipotesis-podemos-borrador-por-alberto-moreiras/

Pious Humor: on José Luis Villacañas’ Freud lee el Quijote. By Gerardo Muñoz.

villacanas freud leeThe almost banal simplicity of the title of José Luis Villacañas’ most recent book, Freud lee el Quijote (La Huerta Grande, 2017), could incite false expectations. This is not a book about the esoteric references of the Quijote in the father of psychoanalysis, and it is most certainly not a psychoanalytic contribution on Cervantes, the author. Although these principles are at the center of Villacañas’ meditation, they do not exhaust his argument. There are, I think, at least two other important premises that deserve to be noted at the outset: on the one hand, Freud lee el Quijote is a continuation, a sort of minimalist diagram, of Villacañas’ massive Teología Política Imperial (Trotta, 2016); while on the other, it is an exoteric ongoing polemic with Carl Schmitt, who understood Quijote as a Catholic hero of the European destiny in the wake of secularization and the crisis of the Catholic ratio. Although Villacañas does not explicitly cite Schmitt’s early essay on Quijote (preferring to polemicize with the late work Hamlet or Hecuba), Schmitt lingers as an accompanying shadow figure throughout Villacañas’ intervention [1].

It must be said that, at a time of contemporary debates around political theology and the future of Europe, Freud lee el Quijote is a salient exposition of a decisive question on the political and historical defeat. Villacañas’ book is really about an affirmation of defeat as an irreducible condition of the political. It does not come to a surprise that Villacañas is fully honest when he writes in the prologue: “… [este libro] es mi hijo menor, pero en verdad el de más larga gestión, y el más querido de todos mis libros” (Villacañas 9).

The names of Freud and Schmitt work jointly and at opposite ends and they limit the frame of Villacañas’ strong reading of the Quijote. The central idea is that Cervantes wrote neither a work of cruelty or tragedy, nor of comedy.  El Quijote for Villacañas is a work of humor. But let us step back from this assertion. Villacañas is generous and attentive to the archival sources (Freud’s letters to Silberstein, among other things), which allows him several factual connections, such as the mimesis between the Academia Española as an antecedent of the Psychoanalytic Association, or even the Coloquio de los perros as a formal precedent of the psychoanalytic session. But more importantly, these juxtaposed scenes pepper the ground for the question that Villacañas is after: how to think the heroic figure of the Quijote, and what relation does it contract with the origin of psychoanalysis?

Villacañas’ thesis is that the Quijote is an eruption beyond the comic and the tragic into the humorous. This is, he tells us at the very end, a process of moral rationalization that Freud understood only after Cervantes’ discovery of the “pious humor” (humor piadoso) (Villacañas 25). To understand the way to Freud’s reading of humor in Cervantes, Villacañas first needs to cross paths with Schmitt. He recalls that in Schmitt’s reading of European secularization, there are three potential mythical representatives. We should bare in mind that the three are intellectual representatives: that of the Catholic Quijote in Spain, the Protestant Faust in Germany, and that of the rational and doubtful Hamlet, pulled by the tragic phantasm of the Law-Father. Throughout the essay, Villacañas wants to correct Schmitt’s perhaps too hasty typology of the first heroic type. It is not that Villacañas wants to dispute Schmitt’s circumscription of Cervantes’ Quijote into the Spanish catholic tradition; the problem is that Quijote only emerges in the ruinous aftermath of the catholic imperial ratio. Quijote in La Mancha is an existential and moral figure of a defeat that confronts reality without resentment or guilt. Hence, Quijote, like the Marranos and the Spanish pícaro, affirms without reserve the time of the interregnum as a profane Post-Reform location. Spain is the land of a double fissure into modern secularization. Villacañas tells us:

“…allí donde dominó el catolicismo nacional posterior, tal proceso fue imposible, pues ese catolicismo se puso al servicio de toda tradición mundana. Entre un catolicismo que ya no podía ser universal y un Estado que nunca sería soberano, don Quijote es el héroe errante en un mundo escindido y roto, sin soberano estatal ni Iglesia universal: el mundo español. Por eso es que es mito existencial y concierne a cualquier español que reflexione sobre su destino histórico” (Villacañas 32).

Cervantes’ profane epoch is that of the newborn Leviathan, which Villacañas reminds us did not need to wait for Hobbes, since the myth was noticed by Juan de Santa María, a Felipe III’ censor, in his Tratado de república y policía cristiana. The mythic Leviathan demolishes the old principles of medieval history based on the absolute potentiality of God in the name subjective freedom protected by the new mechanicist secular state (Villacañas 34). Up to this point, this narrative is very much consistent with Schmitt’s The Leviathan in the State Theory of Thomas Hobbes. But Villacañas abandons Schmitt when contenting that Quijote cannot amount and should not be reduced to a mythical Spanish katechon. Quijote is, in fact, the very opposite of any positing of time restrainer of terrestrial time. He is, unlike Schmitt, not the last witness of the European ius, but the prima witness of the time of ruin and devastation: “Don Qujiote es un héroe católico, pero su figura emerge de entre las ruinas de Roma y del Imperio” (Villacañas 37). Villacañas seems to place Schmitt, vis-à-vis Quijote, on its head: whereas in Hamlet and Hecuba, Shakespeare’s tragedy inscribed the irruption of history within the work, in Cervantes’ Quijote irrupts the historical end of the roman imperium, and the Catholic Church as form of the gnosis. But how does the humor play out within this configuration?

Quijote represents a turning point of the triumph of the modern gnosis, which in a turn to Hans Blumenberg’s Legitimacy of the Modern Age, equips Villacañas with the possibility of fleeing the stereotype of the reformist and salvific composition of the modern subject. For Villacañas, Don Quijote “es la paranoia del impotente y del solitario, mientras el reformado se entrega a la experiencia entusiasta y sin fisuras del que es consciente de su poder y lo ve compartido por los que confiesan con él” (Villacañas 68-69). Quijote is a marrano figure away from Protestant salvific subjection, but also turning its back to the messianic kingdom of the Catholic fidelitas. The wonder and uniqueness of the Quijote is that he represents a third option that does not run through resentment or will to power, since its compensation is a pious humor in the face of the ruinous and the powerlessness (impotencia). Villacañas summarizes the point in an important moment of his book:

“Lo decisivo está en la forma de interpretar las derrotas. La autoafirmación moderna no trata de culpabilizar a un poder mágico por sus fracasos, ni a una finalidad perversa del mundo, ni a un manipulador chapucero y cruel, sino solo a una falla del principio epistemológico respecto a lo real, lo que constituye un nuevo reto a la curiosidad” (Villacañas 73).

The disheveled Quijote can only compensate the wake of the imperial absolute trauma with humor. This is a complex game, Villacañas notes, since it is done through phantasy as the possibility of exodus for what otherwise could amount to the acceleration of the death drive, the sublimation of the Ideal, and the proximity with the speculative teleology of the genius and the superhuman. This latter was the rubric by which German Romanticism read and appropriated the “Catholic” myth as fetish after the failure of the Protestant bourgeois transformation. The work of humor is the possible thanks to the work of self-affirmation in the face of tragic finitude: “Está diseñado para mostrar la finitud del héroe que un día fuimos, y que todavía somos, y ese el trabajo del humor, el que asegura a pensar de todo el triunfo del yo y su condición narcisista” (Villacañas 88). While the joke and comedy are blind to loss, Villacañas goes as far as to claim that the joke or the prank are always potentially on the side of aggression (Villacañas 92). Not so the humor, which can divide itself in a psychic equilibrium between the Ego and the Super-Ego, between the playfulness of the youngster and the theatrical seriousness of the elder. The joke, as reactive mechanism, does not recoil back to the Ideal. Humor – as in “tiene sentido de humor” – is always a singular form of humility.

This is, at heart, the latent gnosticism of Cervantes as Quijote, and Quijote as Cervantes. The function of comedy, which Giorgio Agamben has elevated in work as a phantasm of Italian culture and of his own potenza, dissolves in the Hispanic Marrano tradition in which Villacañas places Quijote as a humorous figure [2]. The work of compensation of the super-ego makes humor a substrate of the psychotic figure of disbelief, while affirming the narcissist drive of a modern fragile and gracious “I”. It makes sense that Villacañas argues at the end of his book this superego cannot be tyrannical (Villacañas 99). This could open rich and important discussions that we can only register here.

As a treacherous hidalgo, Alonso Quijano is never a psychotic leader, but a humorous madman. And humor is only an aftereffect of an epistemological rupture of the modern, of an unclear and unforgotten defeat that characterizes modern man, and that characterized, no doubt, Cervantes himself in his attempt to find a proper balance to nihilism. But, did he succeed? The book does not say openly, but it is fair to say that the impossible balance to nihilism is also symmetrical to the nihilism of the political.

 

 

 

 

Notes

  1. Schmitt in his early essay on Quijote notes some of the aspects that he will take up in the late book on Hamlet, such as the “image of the Hispanic heroism”, and the “great sense of humor of the work”. See, “Don Quijote un das Publikum” (1912). There is a Spanish translation of the essay by Isabel Moreno Salamaña (2009).
  2. For Agamben on the comic as a category of Italian thought in the wake of Dante, see “Comedia” in Categorie italiane: Studi di poetica e di letteratura (2010). Most recently, this is also the problem at the heart of his book on the Neapolitan puppetry figure Pulcinella, Pulcinella ovvero divertimento per li regazzi (2016).

Una nota a la pregunta a José Luis Villacañas. Por Gerardo Muñoz.

El intercambio con Villacañas y Moreiras ha sido iluminador, en parte, porque como decía un amigo por comunicación privada estas notas ayudan a delinear posiciones. Yo no quiero disputar ninguna parte de los argumentos, y lo que sigue es tan solo un apunte mental hecho público sobre lo que me parece que es una posición de desacuerdo y que pudiera ser tema de futuros debates. Aunque el punto del desacuerdo tampoco es tan nuevo.

Me refiero, desde luego, a lo que Villacañas llama la necesidad de legitimidad en su réplica a Moreiras. En específico, J.L.V escribe: “El republicanismo no necesita de la hegemonía, pero si necesita de la legitimidad. Y el problema es que la legitimidad no es una afirmación de archē” [1]. Pero, ¿por qué no puede la legitimidad ser jamás una afirmación arcaica? Es sabido que Weber en Economía y Sociedad habla del necesario arcano de la dominación, pero solo como trazo transitorio hacia una función moderna de los tres tipos de apelación a la legitimación racional (la tipología tripartita: racionalización, autoridad personal, y carisma) [2].

Pero lo que Villacañas entiende por legitimidad tiene sus propios tintes, y ya ha quedado muy bien esbozado en su importante ensayo “Poshegemonía de Gramsci a Weber”. Allí, J.LV. pide el abandono de la hegemonía gramsciana en nombre de una noción de legitimidad en función de una institución visible [sic], capaz de renovación en cada instancia, y garante del pacto social [3]. Y es cierto que esto no tiene nada que ver con un principio legislativo supremo o metafísico, tal y como lo comenta Schürmann en el apartado sobre la legitimidad y la legalidad en la primera parte de Broken Hegemonies.

Ahora bien, en la medida en que la legitimidad no tiene arcano, habría que preguntarse si en el momento de la expansión del estado administrativo – que pienso que es consistente con lo que Moreiras llama la ruina del orden categorial moderno de lo político, o lo que Williams llama decontainment – no hace de la legitimidad algo defectuoso. Pero defectuoso ya no como ‘equilibrio’ de movilización e instalación propiamente político, sino defectuoso en el sentido de un vacío o abismo efectivo. De ser así: ¿cómo pensar aquí la legitimidad caída hacia la pura administración?

Si se apela a la “legitimidad” se apelaría solo al concepto. Por eso la cuestión medular es si la legitimidad tiene gancho compensatorio, o es todo lo contrario. En su librito sobre Benedicto XVI, Il mistero del male (2013), Agamben ha declarado que no existe estructura de gobierno legítima hoy en la tierra. Y quizás Villacañas diría que esta conclusión se debe a su prole schmittiana que desde el registro del mito deja intactas “muchas realidades históricas operando”. Y es verdad que tiene razón.

Y con esto concluyo: lo que si es importante derivar de esto es que si ya la legitimidad no es compensatoria para un momento democratizante, lo que prosigue a la hegemonía es la poshegemonía en la medida en que, en cuanto a su segundo registro infrapolítico, abandona ya la ratio última de la política como acceso de mundo y de vida. La biopolitica ha sido el último avatar de esta posición. Si el populismo contemporáneo – la mejor posibilidad populista, digamos Bernie Sanders, digamos ciertos grupos a escala estatal batallando contra los intentos revocatorios del Civil Rights Act en el sur estadounidense, el errejonismo – tiende hacia a la apelación a la legitimidad o a la poshegemonía es ya otro asunto. Pero yo no tengo dudas que esta es la verdadera bifurcación en nuestro momento para el pensamiento.

 

 

Notas.

  1. Ver en este mismo espacio, a José Luis Villacañas. “Réplicas”. https://infrapolitica.wordpress.com/2017/04/12/replicas-por-jose-luis-villacanas/
  1. Max Weber. Economy and Society. University of California Press, 1978. P.953-54.
  1. José Luis Villacañas. “Poshegemonía: De Gramsci a Weber”, en Poshegemonía: el final de un paradigma de la filosofía política en América Latina (Biblioteca Nueva, 2015). P.165-66.