Sobre el hispanismo con puentes. Por Gerardo Muñoz.

Creo que repito un lugar común si digo que a mí también me parece estimable que un crítico español como Jordi Gracia reseñe en la prestigiosa revista mexicana Letras Libres, un libro tan sui generis como Marranismo e inscripción (2016), de Alberto Moreiras. Cuando hace un año organizamos el lanzamiento de este libro en Filadelfia (las contribuciones, por cierto, pueden encontrarse en este espacio), no sin toparnos con cierta resistencia pasiva y buena dosis de hallway chatter, algunos esperábamos con ansias la asistencia de rostros desconocidos, de nuevos viajeros, de patos mareados (para decirlo con Carlos Abreu), y por ahí también la presencia de algunos bucaneros capaces de darle un tirón al buque. Creo que todos estamos de acuerdo de que la presencia de piratas y bucaneros siempre hace todo más interesante y polémico. Pero no fue así, y aunque el salón estuviera lleno y la discusión fuera estimulante, los que estábamos ahí éramos, en su mayor parte conocidos, colegas y amigos que van y vienen, algunos miembros del colectivo Deconstrucción Infrapolítica, y otros afines al proyecto desde cierta distancia y con divisas muy heterogéneas.

En efecto, el peligro del “cocooning” del que habla Cass Sunstein, no solo hace metástasis en los nuevos medios de la web que fomentan la reproducción del consenso, sino que es ya la lógica misma del malestar en la universidad contemporánea. De ahí que la apuesta del marranismo sea una des-vinculación radical con todo el tinglado comunitario y sus comuniones que repetidamente atentan contra la aspiración de habitar un espacio más democrático desde el disenso, la separación, y el pluralismo. Se dice fácil, pero quizás la universidad contemporánea como institución ya no esté en condiciones de asegurar estas mínimas exigencias. Lo vemos todos los días con el ascenso en contra de Primera Enmienda en los campuses, así como en las nuevas formas despiadadas que afirman un identitarismo reactivo y miope. Así las cosas, no estoy muy seguro que la universidad contemple las condiciones adecuadas para la realización de un destino coherente a largo plazo. Por lo menos no se ven alternativas.

Volvamos a Gracia. Dejemos a un lado las impugnaciones que Gracia embiste contra la “Teoría” (y que han dejado en claro Sebastiaan Faber, Pedro Caro, Jorge Yágüez, Alberto Moreiras y otros en sus comentarios) como operación de escarmiento contra el pato que comete la infracción con su despegue. Ese vuelo esquivo vendría a confirmar la esencia del pharmakon maléfico de toda teoría como toxina que hace de toda ave una presa lista para el sartén. Dejemos también de lado, como ha notado Villalobos-Ruminott que, si bien Gracia reconoce el naufragio de la escena “teórica” en la universidad, le adjudica a Marranismo ser un síntoma de un nuevo vasallaje en función de los términos infrapolítica y poshegemonía. Dejemos también de lado que, para Gracia, en un gesto reduccionista y apurado, una compleja orientación de pensamiento colectivo y heterogéneo (infrapolítica) remite exclusivamente a “una confesión de desengaño sobre la autosuficiencia de una Teoría arrogantemente dotada de superpoderes analíticos. Y me parece valiosa por lo que tiene de experiencia honrada para uso de jóvenes profesores y estudiantes avanzados”.

En otras palabras, para Gracia, Marranismo e infrapolítica anuncian el desengaño de la magia negra de la teoría. ¡Una auto-confesión de brujo! Pero lo más desafortunado, es que Marranismo vendría a poner en escena una paideia moral, un timely warning para el nuevo estudiantado. ¡Apártense de esa brujería! (¿No es siempre lo que se dice?) Es cierto que Gracia ve con claridad que infrapolítica no quiere reproducir la cháchara crítica, que va por otro lado, pero inmediatamente rebaja el debate al almidonado ejercicio de una carta de amor dirigida a los jóvenes. En realidad, no me parece que la intención o el tono de Marranismo sea equiparable, digamos, a La vida verdadera, ese libro de Alain Badiou escrito con el clamor de un maoísta new age que le escribe a una juventud adormecida en el sofismo apolítico. Traigo la comparación con Badiou para lograr distancia y percepción. Puesto que hay una vasta diferencia entre un maoísta y un marrano. Y esa es la distancia para la cual no hacen falta puentes. Mientras que el maoísta solo habla desde las contradicciones del pueblo, el marrano abandona todo cierre comunitario, así como toda síntesis contraria. El marrano no busca la unidad. En fin, todo esto podemos dejarlo a un lado, aunque todo es muy importante.

Yo quisiera incidir en un bucle de la polémica con Gracia que pasa por reducir el problema de la universidad contemporánea y del hispanismo a una cuestión de “diálogo”. Si la misión de la universidad contemporánea ya hoy ha quedado rota – es más, sin posibilidad de restitución política ya sea desde la derecha como desde la izquierda, como dice un libro notable Why Liberalism Failed – la apuesta al diálogo, aunque bienvenida, no puede constituirse como compensación a la caída de la legitimidad universitaria. No se trata de negar el diálogo, bastaría más. Pero tampoco el diálogo puede asumirse como la estrategia para optimizar un mejor rendimiento de la institución. Podemos pensar en varios intentos de reestablecer el intercambio cultural regional o nacional (intercambio material entre instituciones, publicaciones, académicos, espacios culturales y universitarios, becas de trabajo, tiempo en programas de televisión), como en efecto ya existen entre algunos campos o subcampos. Todo esto, aun lográndose, no llega a tocar la raíz del problema. Y el precio que hay que pagar es alto.

El problema de fondo es si la solvencia ‘dialoguera’ entre las partes puede realmente preparar condiciones alternativas a la actual crisis de las Liberal Arts en la universidad contemporánea (al menos en los Estados Unidos). Recuerdo ahora un momento memorable en el congreso La Universidad Posible que tuvo lugar en Santiago de Chile en el 2016, organizado por Willy Thayer y otros colegas chilenos, donde Gareth Williams lanzó una pregunta a sangre fría: ¿en realidad necesitamos más humanismo? El horizonte de la demanda humanista que contiene al diálogo en su factura intercultural nos lleva a una administración de corte cultural policy que no se hace cargo de la fractura entre institución, pensamiento, y felicidad (eso que Moreiras llama un “estilo de existencia” para restablecer un nuevo hispanismo internacional). Claro, la posibilidad de pensamiento y existencia es lo que lo yo pediría desde una infrapolítica práctica por encima del croqui ingenieril de puentes atlánticos.

Me da la impresión que limitar este intercambio a la apuesta de un “diálogo” (por lo muy necesario e ineludible que sea) entre dos orillas termina aislando la cuestión de fondo: si estamos experimentando un agotamiento epocal de las humanidades en la universidad, ese nihil no puede enmendarse, me temo, desde ‘una nueva política’ cifrada meramente como management en las relaciones bilaterales. Este tipo de operación, irónicamente, reificaría el gueto hispanista hacia una política proteccionista de la lengua, del archivo, de la firma, de sus credenciales, de sus circuitos de publicaciones, de sus congresos, y de un lago etcétera. La ilusión de la globalización – y la universidad no es otra sino otra máquina dentro de este proceso efectivo – no es que todo sea fluido y que todos los regímenes culturales alcancen un reconocimiento diferencial dentro del estado homogéneo universal. El verdadero triunfo de la globalización es crear la ilusión de que las modalidades de la soberanía aún están en condiciones de preservar, contener, y generar nuevas formas katechonticas. Pero ya todo esto es insuficiente.

No sé hasta qué punto la demanda de un hispanismo de banquetes, chiringuitos, congresos literarios, o salones de baile, contribuya a un movimiento contra-universitario; o si, por el contrario, termine abasteciendo vagas ilusiones de una pax hispanica diagramada desde una metáfora hidráulica.

Puentes sí, y muchos, pero nunca desentendiendo lo que yace abajo. En fin, Lezama lo decía mejor: “un puente, un gran puente que no se le ve / un puente que transporta borrachos / que decía que se tenía que nutrir de cemento / mientras el pobre cemento con alma de león / ofrecía sus riquezas de miniaturista, pues, sabed, los jueves, los puentes / se entretienen en pasar a los reyes destronados”.

The triumph of res idiotica and communitarianism: on Patrick Deneen’s Why Liberalism Failed. By Gerardo Muñoz.

Patrick Deneen’s much-awaited book Why Liberalism Failed (Yale University Press, 2017) is a timely contribution that, in the wake of the Trump presidency, vehemently confirms the epochal crisis of political liberalism, the last standing modern ideology after the demise of state communism and short-lived fascist mass movements of the twentieth century. It is difficult to distinguish whether liberalism is still a viable horizon capable of giving shape to citizenship or if on the contrary, it endures as a residual form deprived of democratic legitimacy and popular sovereignty [1]. In fact, contemporary liberalism seems incapable of attending to social demands that would allow for self-renewal. In a slow course of self-abdication, which Carl Schmitt predicted during the Weimar Republic, liberalism has triumphed along the lines of a logical administration of identity and difference through depolitization that has mutated as a global war in the name of ‘Humanity’ [2]. The catastrophic prospect of liberalism is far from being a schmittian alimony of political exceptionalism. In fact, Mark Lilla in his recent The Once and Future Liberal (2017) claims, quite surprisingly, that the “liberal pedagogy of our time is actually a depolitizing force” [3]. What is at stake at the threshold of liberal politics is the irreducible gap between idealia and realia that stages a moment where old principles wane, no longer accounting for the material needs in our contemporary societies [4].

Deneen confronts the foundation of its idealia. Deneen’s hypothesis on the failure of liberalism does not follow either the track of betrayal or the path of abdication. Rather, Deneen claims that liberalism has failed precisely because it has remained “true to itself” (Deneen 30). In other words, liberalism has triumphed in its own failure, crusading towards liberation as a philosophy of history, while administrating and containing every exception as integral to its own governmentality. If modern liberalism throughout the nineteenth century (an expression of the Enlightenment revolutionary ethos) provided a political referent for self-government, the grounds for the rule of law, and the exercise of liberty against divine absolute powers (the medieval theology of the potentia absoluta dei); contemporary liberalism has found consolidation as a planetary homogeneous state that reintroduces a new absolutism that interrupts modern man’s self-affirmation against divine contingencies [5]. Since its genesis, liberalism was held by two main anthropological assumptions: individualism as the kernel for the foundation of negative liberty and the radical separation of the human from nature, both by way of an economic-political machine that liberates the individual at the same time that it expands the limits of the state. The rise of the securitarian state is the effective execution of this logic, by which politics centers on governing over the effects in a perpetual reproduction of its causes. These ontological premises are the underlying infrastructures of a two-headed apparatus that ensembles the state and the market in the name of the unrestrained conception of liberty. As Deneen argues: “…liberalism establishes a deep and profound connection; its ideal of liberty can be realized only through a powerful state. If the expansion of freedom is secured by law, then the opposite also holds true in practice: increasing freedom requires the expansion of law” (Deneen 49).

But the same holds true for the unlimited market forces that today we tend to associate with late-modern neo-liberal laissez-faire that presupposes the expansion of functional units of state planning as well as the conversion of the citizen as consumer. The duopoly of state-market in liberalism’s planetary triumph spreads the values of individual autonomy, even if this necessarily entails the expansion of surveillance techniques and the ever-increasing pattern of economic inequality within an infinite process of flexible accumulation and charity that maintain mere life. In this sense, globalization becomes less a form of cosmopolitan integration, and more the form of planetarization driven by the general principle of equivalence that metaphorizes events, things, and actions into an abstract process of calculability [6]. This new nomic spatialization, which for Deneen discloses the erosion of local communitarian forms of life as well as the capacity for national destiny, is the epochē of sovereignty as the kernel principle of liberalism. In other words, Liberalism’s sovereigntist traction was always-already exceptio through which the governance of the nomos is only possible as the effective proliferation and rule over its anomic excess.

The substantial difference with early forms of liberalism is that only in the wake of contemporary globalization and the post-industrial reorganization of labor, this exceptionalism  no longer functions as a supplement to the normative system, since it is what marks the subsumption of all spheres of action without reminder. In this scenario, liberalism is no longer a political ideology nor is it a horizon that orients a modern movement towards progress; its sole task is to control the imports of identity and difference within the social. One could say that liberalism is a technique for containing, in the way of a thwarted katechon, a society without limits. Paradoxically, liberalism, which once opposed sovereign dictatorship, now endorses a universality that cannot be transmitted, and a principle of democracy that has no people (populus).

In the subsequent chapters of Why Liberalism Failed, Deneen turns to liberalism’s imperial mission in four distinct social paradigms: culture, technology, the Liberal Arts in the university, and the rise of a new aristocracy. The commonality in each of these topoi is that in each and every one of these social forms, liberalism has produced the opposite of what it had intended. Of course, it did so, not by abandoning its core principles, but precisely by remaining faithful to them, while temporalizing the hegemony of the same as eternal. First, in the sphere of culture, Deneen argues that liberalism’s inclination towards an anticultural sentiment is consistent with multiculturalism as the “eviscerated and reduction of actual cultural variety to liberal homogeneity loosely dressed in easily discarded native garb” (Deneen 89). The culturalism promoted by liberalism is a process of deletion that knows only a fictive transmutation within the logic of ‘diversity’ and ‘inclusion’ that seeks to exhaust the cosmos of the singular. The price to be paid for policed inclusion of cultural differences into liberal anticultural norms, aside from leaving the economic accumulation untouched, is that it forces a form of consent that tailors the radically irreducible worldviews to standardized and procedural form of subjective recognition. Although Deneen does not articulate it in these terms, one could say that culturalism – which Deneen prefers to call liberalism anticulturalism-, amounts, in every instance, to a capture that supplies the maintenance of its hegemonic thrust.

Nowhere is this perceived with more force today than in liberal arts colleges and universities across the country, where from both ideological extremes, the Liberal Arts as a commitment to thinking and transmission of institutional knowledge is “now mostly dead on most campuses” (Deneen 113). From the side of the political conservative right, the way to confront the ongoing nihilism in the university, has been to completely abandon the liberal arts, pledging alliance to the regime of calculative valorization (the so called “STEMS” courses) on the basis of their attractive market demand. But the progressive left does not offer any better option, insisting by advancing the abstract “critical thinking” and one-sided ideological politization, it forgets that critique is always-already what feeds nihilism through the negative, which does little to confront the crisis in a democratic manner. The demise of the liberal arts in the contemporary university, depleted by the colonization of the dominance by principle of general equivalence, reduces the positionality of Liberal Arts to two forms of negations (critique and market) for hegemonic appropriation [7]. In one of the great moments of Why Liberalism Failed, Deneen declares that we are in fact moving slowly into the constitution of a res idiotica:

“The classical understanding of liberal arts as aimed at educating the free human being ids displaced by emphasis upon the arts of the private person. An education fitting for a res publica is replaced with an education suited for a res idiotica – in the Greek, a “private” and isolated person. The purported difference between left and right disappears as both concur that the sole legitimate end of education is the advance of power through the displacement of the liberal arts” (Deneen 112).

Liberalism idiotism is invariable, even when our conduct is within the frame of public exposition. One must understand this transformation not merely as a consequence of the external economic privation of the public university (although this adds to the decline of whatever legitimacy remains of the Liberal Arts), but more importantly as a privatization of the modes of the general intellect into a dogmatic and technical instrumentality that “can only show their worth by destroying the thing they studied” (Deneen 121). The movement of liberalization of higher education, both in terms of its economic indexes and flexible epistemic standardization, dispenses the increasing erosion of institutions, whose limits have now become indeterminate within the general mechanics of valorization. The res idiotica is the very exhaustion of the res publica within liberal technicality, where any form of impersonal commonality is replaced by the unlimited expansion of expressive subjectivism. In a total reversal of its own conditions of possibility, the outplay of the res idiotica is satisfied in detriment of any use of public reason and freedom, if by the latter we understand a commitment to the polis as a space in which the bios theoretikos was never something to be administered, but constructed every time [8]. The emergence of res idiotica coincides with the decline of politics as a force of democratization in the public use of reason.

In the economic sphere, the assault of the res publica entails the emergence of a new aristocracy, which as Deneen argues, was already latent in liberalism’s great ideologues’ (Locke, Mill, and Hayek) commitment to a ruling class formation and arbitrary economic distribution. For Deneen, one did not have to wait for Hayek’s experiments in active market liberalism to grasp that what J.S.Mill called “experiments of the living” as the promise of liberation from the social shackles, but only to consecrate an even more stealth system of domination between expert minorities rule and ordinary people. What remains of Liberalism in its material deployment is not much: a res idiotica that fails at constituting a public and civil society devoid of cives, and a state that expands the limits of administration in pursuit of freedom only to perpetuate an aristocratic class. In broad strokes, Deneen’s narrative about liberalism could be well said to be a story about how a “living body” (the People) became an absolute in absentia that only leave us with a practice of idolatry to a supreme and uncontested principle [9].

The idolatrous character of liberal principles is rendered optimal in recent theoretical claims against democracy, where the latter is seen as an obstacle for government rather than as the premise for the legitimacy of popular sovereignty. Hence, democracy is turned into a mechanical arrangement that includes whatever supports liberal assumptions and beliefs, and excludes all forms of life that it sees as a threat to its enterprise. In this way, liberalism today is a standing reserve that administers the proliferation of any expressive differential identities, while scaffolding an internal apparatus for self-reproduction. In one of the most eloquent passages of the book, Deneen evokes the anti-democratic shift of liberalism in the contemporary reflection:

“…the true genius of liberalism was subtly but persistently to shape and educate the citizens to equate “democracy” with the ideal of self-made and self-making individuals – expressive individualism – while accepting the patina of political democracy shrouding a power and distance government whose deeper legitimacy arises from enlarging the opportunity and experience of expressive individualism. As long as liberal democracy expands “the empire of liberty”, mainly in the form of expansive rights, power, and wealth, the actual absence of active democratic self-rule is not only an acceptable but a desired end”. Thus liberalism abandons the pervasive challenge of democracy as a regime requiring the cultivation of disciplined self-rule in favor of viewing the government as a separate if beneficent entity that supports limitless provision of material goods and untrammeled expansion of private identity” (Deneen 155-156).

The triumph of the res idiotica works in tandem with the expansion of the administrative state at the level of institutional reserve, and through the presidentialist charismatic populism in covering the void of an absent demos. These two cathetic instances of hegemonic closure maintain the democratic deficit that organizes the polis against any attempt at active dissent against the unlimited forms of commence and war that, according to Deneen, “have increasingly come to define the nation” (Deneen 172). At the very core of its innermost material practices, liberalism amounts to a technical-war machine that, in the name of a homogenous and uprooted ‘humanity’, liquidates the commitment to the res publica as the only political system that can uphold any form of consistent and durable endurance against the imbalanced domination of an unruly and anarchic power. If the political as a modern invention it is said to be a flight from the condition of servitude and slavish subordination, as Quentin Skinner has observed, we are in a position to claim that contemporary liberalism is as much a movement forward in unlimited freedom that articulates a regression to the form of dependence of the slave [10]. Once the singular is dependent on a power that he interiorizes as fully spectral and all encompassing, freedom amounts to a slave restraint over the potentiality of desiring and retreating. In the planetary stage governed by equivalence as the administration of cultural identity formation, the singular comes to occupy the position of the slave that, although is free to exercise his self-command in an unlimited region for self-recognition, any transgression of the normative regime is always-already anticipated by the securitarian apparatus. Politics, as we know it, has come to a close in the liberal paradigm.

Why Liberalism Failed does not shy away from offering a way out, a ‘what is to be done’ to the liberal dominium that puts in crisis the relations between thinking and action, imagination and political ideologies. For some contemporary thinkers (in particular, the post-Heideggerian tradition opened by the work of Reiner Schürmann and Giorgio Agamben) have endorsed a positivization of an-archy as a way for clearing the path beyond the saturation of apolitical liberalism [11]. But if we grant this speculative move, we forget that liberalism is an economy that governs the very excess of foundation that is already well within the anarchy principle. In other words, failure is not an exception or achievement or telos of liberal rationality; it is rather something like its irreducible latent force that gives semblance to the ‘actuality’ of the idolatrous principle. However, if liberalism is only semblance without material substance (barren from popular sovereignty), then it is no longer a constituted principle or archē. Anarchy is thus a false option, although it is not the option that Deneen subscribes. The question remains: what is to be done at the end of liberal politics that have brought to ruin the triad of action, freedom, and even citizenship?

Deneen’s wager is not an endorsement of a new and better theoretical articulation, but the affirmation of a community form that he associates with Tocquevillian ‘schoolhouse of democracy’ as well as with Wendell Berry’s practical communitarianism as a “rich and varied set of personal relations, a complex of practices and traditions drawn from a store of common memory and tradition, and a set go bonds forged between people and place that is not portable, mobile, fungible, or transferable” (Deneen 78). It is at this critical point in the conjuncture, where I see Deneen’s proposal as insufficient on grounds of both his own intellectual premises in his critique of liberalism, as well in relation to what the community form if understood as a locational and identitarian structure.

First, it is not very clear that community as understood here can do the work to retreat from liberal machination. The community form, assumed as a foreclosed and identitarian contained social form, can offer only a thetic instance of what liberalism promotes in its rule through management. The community as a countercultural reaction to liberalism’s promotion of identities leaves intact its own identitarian closure reduced to propriety and consensus [12]. Could one reconcile democracy with a communitarian horizon for a singular that opts for dissent against the communitarian majority? Probably not, because the horizon of communitarization, like that of liberalism, rests on the production of exclusion for anyone that chooses to retreat from the community. The fact that these questions are left unanswered by Deneen’s proposal is a sign the community form does not offer any substantial alternative to atomized identity. Rather, the community form only call to legitimacy is a set of metaphysical niceties such as ‘inheritance’, ‘location’, and ‘practicality’.

By subscribing to organic communitarianism, Deneen postulates a theoretical archē of the community that thrives on what it excludes in order to properly define and constrain itself. In other words, as conceived under the banner of “practical” (not ‘theoretical’) forms of life, the community form becomes an active self-reproductive logic that bars dissent before any threat from the outside. However, there is a second consideration when thinking about community form. Essentially, that it is not convincing that Deneen’s affirmation of the community can claim to be an exception to liberalism’s empire. By retorting that liberalism amounts to a “demolition that comes at the expense of these communities’ settled forms of life”, Deneen immunizes the community as an impolitical form that can be extracted from the logic of real subsumption (Deneen 143). In an ironic endgame, Deneen’s practical communitarianism as a ‘personalized and settled form of life’ recasts contemporary Marxist and current vice-president of Bolivia Alvaro Garcia Linera’s thinking of the community form as organic entelechy that accelerates use value against global transnational capitalism [12]. But whereas for the Bolivian thinker, the task amounts to an actualization of the community form in order to radically transform the state, in the case of Deneen’s proposal, the return to the communitarian patchwork amounts to the fantasy of a radical detachment from the administrative state and national popular structures. These two positions, although from opposing extremes of the ideological spectrum, do not provide an exit from the crisis of politics, but rather the full realization of politics as ongoing nihilism against the negative labor of liberalism. It would seem that the best that either the Left or the Right can offer today is a form of communitarianism.

If community form is always one of theological salvation – as a set of practices that would include care, humility, and modesty at the level of local communities (Deneen 191-192) – then this entails that communitarism works through a theological foundation of faith as the dissuasion of any possible instance of the profane interruption. As Elettra Stimilli has observed, the Christian community of salvation is always already consigns an unknown dimension of freedom, which reintroduces the dependence model of servitude [13]. The factical life of Christian community of faith can only be maintained as an ascetic practice for those that already within the parameters of its beliefs. In short, community form does not only leave unperturbed the functioning of the liberalism’s empire of liberty, and unfortunately can only provide the same broken idealia that fails to confront the interregnum that today names the fracture between theory and practice of the political.

Could it be, rather counter intuitively, that Patrick Deneen’s Why Liberalism Failed is actually an esoteric defense of liberalism? I would like to read the consequences of the book in that direction, by slightly displacing the question of liberalism to that of the anthropological genesis of modernity. This speaks to the book’s admirable tension between the triumphs of liberalism as a failure (or as always failing), while at the same time liberalism’s appeal to realize the admirable ideals that liberalism often only promised (Deneen 184). What if these aporias could allow us to rethink the Enlightenment as a project ‘to come’ that can guarantee open universal conditions for reform and in pursuit of modern man’s self-affirmative counter-communitarian, and institutional durability? What if the Enlightenment could desist on being a triumphalist account of humanist withdrawal, and instead be rendered as a project of radical deficiency, of the crisis of modern science, and the scope of singularity that can never amount to a metaphorization of the idea of liberty, but one that allows for the disturbance of myth (as well the theology) against transcendental action? [14]

The failed triumphalism of liberalism, and here I must agree with Deneen, was confined on its reducibility on subjectivation and subjectivity as an absolute anthropologism. This metaphysical anthropology, in fact, made the psychic life of the singular into identity reproduction between duty and guilt as the dual symptomology of becoming ‘subject’. Liberalism has been a compulsive and failed politics, not because of what it has not achieved by remaining all too faithful to its promises, but because it has substantially realized subjectivity as the uncontested hegemonic principle of the political. Against the servitude of liberalism’s imperial drive, and the communitarian countercultural obligations, the task remains to think the emergence of a universal, marrano, and non-subjective democratic enlightenment that could reinstate the res publica from within the ruins of the res idiotica, only if it is not already too late.

Notes

  1. The retraction of legitimacy in all political systems of the West has been argued by Giorgio Agamben in The Mystery of Evil: Benedict XVI and the End of Days (2017). Slightly in a different register, what I am arguing here is that the exhaustion of popular sovereignty in liberal hegemony, in part, is due to liberalism’s extreme distance, and at times even explicit rejection, from any transaction with the ‘popular’. At the same time, one could also claim that the emergence of populism in contemporary societies is a latent expression that seeks to ground popular mobilization to readdress the democratic deficit in technocratic governance.
  2. See La Guerra Globale (2002), by Carlo Galli.
  3. Mark Lilla. The Once and Future Liberal: After Identity Politics (2017). 137-138.
  4. The epigraph of Barbara Tuchman’s A Distant Mirror: The Calamitous 14th Century, we read: “When the gap between ideal and the real becomes too wide, the system breaks down. Legend and story have always reflected this in the Arthurian romances the Round Table is shattered from within. The sword is returned to the lake; the effort beings anew. Violent, destructive, greedy, fallible as he may be, man retains his vision or order and resumes his search”. The question is whether in the current interregnum the capacity for ‘myth’ can still provide a source to cope with the fissure between a desirable political horizon and a theoretical set of concepts capable of giving form to a new order.
  5. This is the argument for the legitimacy of modernity beyond the theological-political underpinnings in the wake of secularization advanced by Hans Blumenberg in The Legitimacy of the Modern Age (1985).
  6. Although the term general equivalent spans from Marx to Jean Luc Nancy to account for the logic of exchange, for an assessment of the question of equivalence as the logic of nihilistic measurement at a planetary scale, see “Infrapolitical Action The Truth of Democracy at the End of General Equivalence” (2016), by Alberto Moreiras at: https://quod.lib.umich.edu/p/pc/12322227.0009.004?view=text;rgn=main
  7. The insufficiency of hegemonic politics today has nothing to do with a partisan, theoretical, or ideological inclination. If we say that the theory of hegemony is no longer viable today, it is because it can only work as a collectivization of identity proliferation, whether in the form of the equivalent demand or in through the closure of the community form, failing to provide in either case for a demotic impersonal region. For the crisis of the modern university and the insufficiency of critique, see La crisis no moderna de la universidad moderna (1996), by Willy Thayer.
  8. As Arendt writes in her essay “What is Freedom?”: “The way of life chosen by the philosopher was understood in opposition to the bios theoretikos, the political way of life. Freedom, therefore, the very center of politics as the Greeks understood it, was an idea which almost by definition could not enter the framework of Greek philosophy”.
  9. I am thinking here of Adrian Vermeule’s important critique of the idolatrous conception of the separation of powers by legal liberalism in his most recent Law’s abnegation: from Law’s Empire to the administrative state (2017).
  10. Quentin Skinner. “A Genealogy of Liberty”, unpublished lecture read at Stanford University, October 2016.
  11. See, “On Constituting Oneself an Anarchistic Subject” (1986), by Reiner Schürmann.
  12. For an important assessment of the limits of the communitarian model, see “Consensus, Sensus Communis, Community” (2016), by Maddalena Cerrato, at https://quod.lib.umich.edu/p/pc/12322227.0010.005?view=text;rgn=main
  13. Elettra Stimilli. The Debt of the Living: Ascesis and Capitalism (2017). 9-10.
  14. This is the moment where Hans Blumenberg, who labeled himself as a disillusioned child of the Enlightenment, took maximum distance from the Kantian unlimited freedom as a necessary presupposition of reason: “However, the danger of using an absolute metaphorics for the idea of freedom can be discerned in Kant himself, and its grave, necessarily misleading consequences can be seen in the introduction of the conception of transcendental action. This makes it natural to regard as freedom anything that can be represented as a transcendental action of understanding”, in Shipwreck with spectator (1997), 101.

Democracy without arcanum: philosophical anthropology and metaphorics after The Question of Being & History 1964 seminar. (Draft for “Transformative Thinking Workshop”, University of Michigan, September 2017). By Gerardo Muñoz

 

Jacques Derrida’s important early 1964 seminar on Martin Heidegger, The Question of Being and History (2016), is more than a mere exegetical reading of Being and Time. I think it is also wrong to think of the seminar as an attempt to promote a “Heideggerian paideia” of a philosophical master. From the first session, it becomes clear that Derrida is not interested in producing anything that could resemble what we think of as “critical theory”. Indeed, theories today could be thought-provoking novels and melodramas, and every time that one hears of ‘good theories in America’ it is most certainty because they are good novels. No stories, no masters. It should come to no surprise that Derrida says that the Heideggerian ‘destruction’ could never entail a refutation. The craft of refuting belongs to the sophistry of meaning made possible through exchange and measurement. It is not coincidence that the sophists were performers of rhetorical persuasion, a pragmatic practice that unified substitution, linguistics, and temporality in semblance of philosophical deployment [1].

This game of refutation is always potentiality hegemonic, since its capability for truth never leans towards a singular ex-position. It is rather in the metaphorics of discourse that the singular runs astray as truth of being. As a preliminary condition of his seminar, Derrida makes himself unsophistically clear: there will be no anti-philosophical sophistry, no refutation, and no university productive surplus. In fact, one of the challenges that reading this seminar poses today –especially as professors or students having some relation to the contemporary university world – is to be found in an unbounded desire to extract essential lessons for the ‘present’. But one must reject the journalistic temptation in the teacher’s lesson. Furthermore, today this difficulty cannot be entirely solved by favoring écriture, but rather by confronting the task of thinking outside the dispensation of the order of ‘philosophy’, ‘literature’, or ‘politics’ [2]. The seminar is an invitation to accept the integrity of thinking with no derivative systematic and telic program.

If this is true, then one must take Derrida very seriously when he contends that: “there are no Heideggerianism and no Heideggerian” (Derrida 223). This affirmation is not rebutting the construction of a philosophical school under the label ‘Heideggerianism’. Rather, it is preparing, in its place and deferral, another entrance that neutralizes the metaphorical dissimulation that subordinates the tragic dimension covered up by narrative production of originary sense. Throughout the sessions, Derrida stages the possibility of rendering visible the ways in which the metaphysical tradition has never ceased to sleepwalk over its principles in language. This condition of sleepwalking is not the story that metaphysics has produced in its ipseity; it is rather a secondary plot that keeps buried the conditions under which stories are told, transmitted, redrawn, and acknowledged in a process that binds ontology and history.

Hence, the texture of the onto-theological ground of the philosophical tradition is novelesque. Derrida tells us: “Telling stories,” in philosophy, is for Heidegger something much more profound that cannot be so easily denounced as doxography. The Novelesque from which we must awaken is philosophy itself as metaphysics and as onto-theology” (Derrida 26) Telling stories has been the pacifier for the infant misrecognition of metaphysics as the teleological movement of history. But there is no formal uniformity to the philosophical tradition. From Aristotle’s organon and Hegel’s philosophy of history, from Husserl’s empiricism and Descartes’ skeptical logos and Bergson’s duration, telling stories has produced what Derrida calls a state of immaturity, a permanent infantile stage of storytelling. This does not mean that adults are immune to storytelling, quite the contrary. One could argue that the Enlightenment’s call to an exit from immaturity was yet another variation of a sleepwalking night under the self-possession of logos in the name of an ultimate indivisible sovereignty. Let’s recall Kant’s “What is Enlightenment?”. If one submits to the courage to ‘use of one’s own reason’ then one must admit that no failure is possible, except as cowardice. This is why every fracture of the Kantian bodybuilder of reason needs to compensate with subjective guilty (‘only you are to blame for this failure’). Here we also are thrown into a story of modern capitalist subjectivity that necessarily needs to sublimate finitude as either economic guilt or political treason. Since there is no unifying form of infantile storytelling, a metaphoric combustion supplements the transaction of every epochal failure to radically confront the problem of history. The power of the metaphor works to alleviate and postpone the inquiry of the existential.

If metaphorics is the core problem in The Question of Being and History, it comes to a surprise that Derrida wouldn’t openly confront the strategic defense of storytelling pursued by the post-Heideggerian school of philosophical anthropology. Even more so, because Heidegger himself had seen in Max Scheler – who at times is seen as one of the “founding fathers” of philosophical anthropology –the strongest force of German philosophy during the first decades of the twentieth century [3]. But perhaps there is no mystery involved, and Heidegger’s ontological difference is nothing but a direct engagement to a philosophical anthropology’s recasting of a metaphysical and rhetorical humanism in the wake of biology and Weberian sociology of the separation of powers. Although this is not the place to reconstruct the strands of philosophical anthropology, I want to recap at least three movements to situate its program. First, one must recall its starting point in Max Scheler’s The Human Place in the Cosmos (1928), where a metaphysical humanity was thought as a dual substance between an external process of spiritualization and internal biological drive. Scheler’s hypothesis of the deficiency and excessive posture of the human will later become premises for Helmuth Plessner and Hans Blumenberg’s speculative projects of modern man’s self-affirmation against the risks of absolute contingency.

The driving force behind philosophical anthropology hinges on the idea that every singular human necessitates concealment from himself in so far he is deficient. For Plessner, speculative anthropology does not presuppose a subject, since man is first and foremost a homo absconditus that “never discovers himself complete in his actions [and] only has his shadow which precedes him and remains behind him” [4]. This deficient edge entails that man can only interact with reality through a partial and metaphorical mediation that fails to actualize an absolute inner-worldly history of salvation. As a non-absolute and fissured being, man can only relate through metaphors. Metaphorics for philosophical anthropology is thus a nonconceptual discharge of existence against the absolute or literalness of the objectivity of phenomena.

In fact, while Derrida was working on the 1964 seminar, another exponent of philosophical anthropology, Hans Blumenberg, had just written Paradigms for a metaphorology (1960), a collection of essays that attempted to rework the relation between history, metaphorics, and existence. Like Derrida, Blumenberg also departed from the crisis of phenomenology and metaphysical tradition in the wake of Heidegger’s radicalization of thinking beyond history and ontology in Being and Time. However, for Blumenberg, the question of being in philosophical reflection amounted to a dysfunctional mode of representation, since the essence of care would render impossible any form of delegation and incommensurable exchangeability [5]. If the question of Being presupposes an indeterminate structure of existence, then this could only mean that an absolute conceptualization could place philosophy as an index of poetics. The impossibility of substitution and delegation of singulars meant that it was philosophical anthropology’s task to explain man’s deficiency once immersed in reality as “always indirect, circumstantial, delayed, selective, and above all metaphorical” [6].  Because we cannot endure the absolutism of reality, man can affirm its existence only through rhetorical and symbolic forms that exceed empiricism and measurement into potential expectations. Metaphorics interrupts the absolute reality, while opening the singular vis-à-vis stories to the historical density of the concept.

Philosophical anthropology’s reaction to Being as care, is perhaps best explained in Blumenberg’s sardonic treatment of being as a “MacGuffin”, in which he refers to a dialogue that Hitchcock had made up between two men on a train [7]. So the story goes: one man asks about what is inside a package in the baggage rack, and the other answers, “Oh, that’s a McGuffin, it’s an apparatus for trapping lions in the Scottish Highlands”. But if there are no lions in the Scottish Highlands, what is exactly a McGuffin? The mystery of the McGuffin begins as soon as one reveals his name, keeping silence of its logic or procedure. The McGuffin must remain a mystery. For Blumenberg, Dasein shares a similar structure that enacts curiosity in order to avoid boredom. The enigma of the McGuffin resides in the suspension of storytelling or rhetorical mediation involved. This is quite the opposite way in which Derrida refers to the source of the enigmatic and enigmaticity in the constitutive of privilege of the present at the heart of every metaphysical epoch. In an important passage of the seventh sessions, Derrida writes:

“Enigmatic, then, is the discourse — and the enigma is always, as its name indicates in Greek, ainos, a discourse and even a story — on history at the moment that it really must speak about the past. Enigmatic is the discourse on the past, enigmatic is the past as origin of discourse, enigmatic is historicity as discursively. The time of the past in discourse and the past of time in ek-sistence are the enigma itself. They are not enigmas among others but the enigma of enigma, the enigmatic source of the enigma in general, enigmaticity” (Derrida 174).

This passage brings forth several difficulties. To the extent that we are to understand the destruction of temporality of presence as a fundamental point of inflection of the destruction of metaphysics in the seminar, enigmaticity points to an aporetic limit in which the past of tradition, the generality of inheritance and transmission become one with the origin of the present. This relation is fundamentally enigmatic because the temporality of presence appears as one of dissimulation. In other words, the enigma signals the movement of metaphysics’ sonambulism. Here one is able to see the preliminary movements of Derrida’s subsequent deconstruction of the presence of metaphysics from the structure of the trace. Derrida seems to suggest the enigma recalls the fact that we take for granted the temporality of the present as presence. In this crucial injunction we can approach the irreducible distinction between Blumenberg and the project of existential temporality of Being.

Whereas Blumenberg understood the enigmatic formalization of presence as a danger of the absolutism of reality that solicited the human engagement through compensatory metaphorics for self-affirmation; for Derrida the destruction of presence entails a factical suspension of all metaphors conferring to a temporality always already that lets existence be. This letting be, however, cannot be re-metaphorized, as Giorgio Agamben has recently undertaken in Use of Bodies (2014), to make it coincide with an ontological primacy of the political [8]. Derrida’s early seminar is an attempt to make the case that for this im-possible inherence of the philosophical tradition without first privileging philosophy (ontology) as arcana for thought. Here destruction of metaphysical ontology essentially encompasses a transformation for thinking politics as excess to every foundation that works against singular existence. In an important passage of the seminar, Derrida warns of the impossibility of derivative originary politics:

“Heidegger does not provide, and does not have to provide, an ethics or a politics. Insofar as he is analyzing the essence of the decision in the situation — the decisionality and being of the structure in general — he does not have to tell stories and say what must be done, in fact, here or there, in this or that situation” (Derrida 187).

So, within a general economy of de-metaphorization, there are no derivative politics or ethics from the destruction of philosophical storytelling. For Derrida, more importantly, this also means that one must be vigilant of the force of the negative: every destruction of principial (archē) temporality cannot deliver us with an an-archia as a reversal towards an ethics of a non-political essence.  This gesture would belong to what one could call the nomic and temporal acceleration of a historicist philosophy of salvation. This is also why Karl Lowith found gratification when Heidegger told him that he “agreed without reservation that his concept of ‘historicity’ was the basis of his political ‘engagement’” [9]. In this framing, “Heideggerian” historicity yields a non-political dismissal of ethics. But we are not going to subscribe anecdotal veracity in a game of refutation. In fact, in the opening of existential historicity a relation between politics and thought is the infrapolitical designation that marks the passage from historical ontic storytelling to existential de-narrativization. Infrapolitics could depart from the Heideggerian suggestion that ‘essence of the polis is non-political’, but it avoids interpretations of this stepback as a flight from politics [10].

I think that what Derrida already quite forcefully discloses in the 1964 seminar is an infrapolitical historicity that is necessarily followed by an affirmation of a quasi-concept of democracy. I emphasize “–quasi” since democracy cannot constitute either a thetic or hegemonic ground. Infrapolitics would come to trace the non-metaphoricity in the metaphorics between thought and politics as a retreat from the anxiety of an arcanum. The destruction of the enigma of the temporality of present as privilege of presence necessarily demands a suspension of every political arcanum. Carl Schmitt defines the arcanum as the political secret of the modern state sovereignty’s technology, as the phantasmatic essence of politicity [11]. Thus for Schmitt “every great politics belongs to an arcanum”, which secures order and communal subordination, providing legitimacy of a mythical drama that unfolds a theological shadow containing liberal endless dialogue. The enigma of the arcanum coincides with a notion of history as a mystery, since it is also a political theology of communal salvation. The well-known Pauline notion of katechon in Schmitt’s thought is a way to concretely dispense every political decision to an existential temporalization that must decide in the face of disintegration. Indeed, in schmittian terms, the drama of history stages the katechon against anarchos, in an effort to tame the prevalent liberal ethical anarchy dispensed by the technical structuration of modern nihilism. This is why Schmitt represents a hyperpolitical thinker that guards and protects the arcana of an originary authority. But infrapolitics cannot amount to a negation of the arcanum in the direction of anarchy. This is the second option that existential infrapolitics denies.

Derrida was very attentive to this second slip in his early essay on Levinas’ “Violence and Metaphysics” distinguishing between being and commandment: “Being itself commands nothing or no one. As Being is not the lord of the existent, its priority (ontic metaphor) is not an archia. The latter are therefore “politics” which can escape ethical violence only by economy: by battling violently against the violences of an-archy whose possibility in history, is still accomplice of archaism” [12]. In his commentary on this important negation of the anarchy principle, Moreiras objects to the eschatology of messianic peace that every an-archy proxies for political arcana. Thus, the negation of archaic politics as an an-archy of ontology is still supported by the archē. In this sense, infrapolitics is the term that seeks to reorient a radical detachment of anarchy as a secondary declination that displaces the co-belonging of politics and ethics, to the irreducible distance between politics and thought. In fact, what we see in those gestures that have paradoxically posited anarchy as first principle – from Reiner Schürmann to Miguel Abensour to most recently Agamben’s an-archical modal subject within an archeological history – is that are still subjected (hypokeimenon) and subject to the deployment and clousure of the command [13].

In place of an arcanum that subordinates existence to politics and an a-historical anarchy as form of an ethics, Derrida’s elaboration of historicity in the 1964 seminar yields an infrapolitics as a third turn that is neither an anti-politics nor an ethics of the singular encounter with the other. Infrapolitics could thus be thought as a third moment that thinks with and beyond Heidegger the notion of democracy as always deficient, always to come, and quasi-concept that is never fully political, nor entirely given to closure. Many years later, Derrida would link democracy and historicity in Rogues in that: “…the language of democracy has an essential historicity of democracy, of the concept and the lexicon of democracy (the only name of a regime, or quasi regime, open to its own historical transformation, to taking up its intrinsic plasticity and its interminable self-critical, one might even say its interminable analysis)” [14]. The fact that Derrida denotes an “essential historicity” to democracy is fundamental. Unlike the political arcanum or the eschatological somnambulism of conducted by an-archy, democracy watches over the historical absolutism lacking in the horizon of politics as last instance of thought.

Infrapolitics names a transformative thinking that cannot be integrated under the arcana of the One, and that consigns a democratic indifference. The fact that democracy can provide a non-anarchic relation with the coming of nihilism, announces that only “in principle it assumes the right to criticize everything publically, including the idea of democracy, its concept, its history, and its name” [15]. Underneath, the historicity of being puts to work a deficient relation of every singular with politics. This form of democratic reinvention of ‘essential historicity’ at a near distance, poses another challenge for thinking freedom as a permanent examination of the fictio legis inherited from the legal institutions. Democracy presupposes the promises to think historicity (Geschehen) as an undoing of the present into present as past of a future. This is the final displacement of historicity of the origin where no arcanum is subsumed within existential temporality. Derrida comes close to explicitly naming a democracy of unequal singulars, which Jean Luc Nancy has called the democratic truth beyond the categories of onto-theology storytelling:

“…one should not even say inequality but anequality, inequality presupposing a defect or a shortcoming with respect to a measure or a telos, to a common entelechy, to a measure of all things. The concept of anequality is the only one able to respect this originality, and the radicality of the difference of which Heidegger was always primarily concerned to remind us, an originary difference: that is, one not thinkable within the horizon of a simple and initial or final unity. So, an irreducible multiplicity of historicities.” (Derrida 208).

The assertion of a historial democracy unlocks every process of singularization where politics is irreducible neither to “heroic individuals nor communitarian resolution” (Derrida 198).  The end of political ontology destroys the operative process of dissimulation produced in every hegemonic phantasy.  Thus, a-metaphorical thinking is the infrapolitical turbulence within the theory of politics and the ontological void of the political. But can we truly say that this amounts to a rejection of ‘philosophical anthropology”? Philosophical anthropology cannot provide us with a politics as the telic organization of existence to sustain community or history. It cannot depart from an-archic metaphorics. So it must come to terms with the finitude that is prior to the deployment of deficiency and delegation.

This is the supplementation that any philosophical anthropology should address in every (im)possible metaphorics. I take this to be one of the possible guiding marks in Derrida’s only mention of ‘philosophical anthropology’ in the seminar: “Philosophical anthropology, necessary though it is, must lean on this analytic of Dasein and come after it if it wants to rest on a satisfactory philosophical base” (Derrida 56). This tracing out of the metaphor borders an existential temporality that can only announce a movement to an infrapolitical reflection at work in the majestic (presbeia) and insufficient composure of democracy.

 

 

 

 

Notes

  1. Boris Groys, The Communist Postscript. London: Verso, 2010.
  2. Alberto Moreiras has made an important distinction between first and second wave of deconstruction in order to distinguish deconstruction as a reflective practice from the history of its reception. More importantly, this distinction helps to differentiate between a residual textuality and a turn towards thinking politics as infrapolitics. For a discussion of this, see Marranismo e inscripción (Escolar y Mayo, 2016).
  3. Martin Heidegger. “In Memory of Max Scheler” (1928). Heidegger: The Man and the Thinker (ed. Thomas Sheehan). New York: Transaction Publishers, 2010.
  4. Helmuth Plessner. “De Homine Abscondito”. Social Research, Vol.36, No.4, 1969.
  5. Hans Blumenberg. “Prospects for a Theory of Nonconceptuality”. Shipwreck with Spectator: Paradigm of a Metaphor for Existence. Massachusetts: MIT, 1997. p.107
  6. Hans Blumenberg. “An anthropological approach to rhetoric”. After Philosophy: End or Transformation, MIT Press, 1987. p.439.
  7. Hans Blumenberg. “Being – A MacGuffin: how to preserve the desire to think”. Salmagundi, No.90-91, 1991, p.191-193.
  8. At the end of Use of Bodies (2016), for instance, Agamben writes: “And if being is only the being “under the ban” – which is to say, abandoned to iself of beings, then categories like “letting be”, by which Heidegger sought to escape from the ontological difference, also remain within the relation of the ban”. p.268.
  9. Karl Lowith. “My Last Meeting with Heidegger in Rome, 1936”. New German Critique, No.45, 1988. p.115-116.
  10. Barbara Cassin. “Greek and Romans: Paradigms of the Past in Arendt and Heidegger”, Sophistical Practice, 164-188.
  11. Carl Schmitt. Dictatorship. New York: Polity, 2013. p.16-20.
  12. Quoted in Alberto Moreiras’ “Infrapolitical Derrida”, forthcoming, 2017. p.141.
  13. The contradiction of the an-archic position in contemporary thought has also been treated by François Loiret in his “L’épuisement des archéologies.”. https://www.francoisloiret.com/single-post/2015/05/25/Lépuisement-des-archéologies “.
  14. Jacques Derrida. Rogues: Two essays on reason. Stanford University Press, 2005. p.25.
  15. Ibid., p.28.

 

Stories or fiction? A footnote to Derrida’s The Question of Being and History. By Gerardo Muñoz.

Arguably, one of central problems in Heidegger: The Question of Being and History (2016) is the radical destruction of storytelling proper to onto-theological history. For instance, if we are to take the question of historicity seriously, Giorgio Agamben’s recent efforts on a ‘modal ontology’ provides yet another form of storytelling principled on henological absolutism. A similar gesture appears in Reiner Schürmann’s late work on the possibility of an outside of metaphysics vis-à-vis Plotinus’s hypostases of a “One” prior to all differences and intellect [1]. Although Schürmann points to Derrida’s suggestions on Neo-Platonism as an exception to onto-theology, one should bare in mind that any effective destruction of storytelling would also bring to ruin the henological difference under the critique of the trace. This is the crucial passage delivered very early in the seminar:

“The writing that tells stories is easy, narration is easy and philosophy, in spite of appearances, has never deprived itself of it. The point is to break with the philosophical novel, and to break with it radically and not so as to give rise to some new novel. The philosophical novel, philosophical narration, is of course, but is not only, the history of philosophy as doxography that recounts, reports, gathers and lays out the series of philosophical systems. “Telling stories,” in philosophy, is for Heidegger something much more profound and that cannot be so easily denounced as doxography. The Novelesque from which we must awaken is philosophy itself as metaphysics and as onto-theology“. [2]

As it becomes usual throughout the seminar, telling stories is not just an intellectual operation of the history of philosophy and the philosophy of history. The gesture of going beyond storytelling entails an affirmation of the ontological difference. This leap is not to be understood as a way of entry into a higher kingdom of speculation. Rather, it implies an invitation to radically confront history without exceptions or absolutes. In a way, this is the opposite end of philosophical anthropology’s task, which for Blumenberg amounts to a nonconceptual metaphorics capable of man’s self-affirmation against the absolutism of reality.

But I wonder if one could make the case that the deconstructive operation already in the 1964 seminar vis-à-vis the destruction of storytelling opens to a new conception of fiction. It is telling that ‘fiction’ as such is never brought in the seminar. This displacement, however complex and aporetic, should point to a minimal difference between Heideggerian destruction and Derridean deconstruction when it comes to dismantling every effective onto-theological operation. Should one, then, distinguish between storytelling and fiction? For one, if storytelling belongs the realm of the sleepwalking of philosophy and ontology, then it would be productive to think whether the shift after destruction takes place between thinking and fiction. I am still unable to grasp (if it is indeed possible and consistent) if fiction could effectively be understood as an excess of storytelling. It is not a question of form or even truth.  Should fiction point to the distance between politics and infrapolitics in thought? Could we say that infrapolitics is the dissemination of singular fictions announced after the destruction of onto-theological storytelling? Fiction: a non-metaphorical essence over existence after the end of metaphoric translation.

A negation of fiction puts us in a position of anomy. Here the fiction of law is a productive site for thought, because it is a discipline in which we find that fiction (fictio) is an operation that organizes and brings about a nebulous domain. According to Yan Thomas, who is arguably the central scholar on the fictive nature of Roman law: “The fictio is, from the point of view of Western history, without precedent. It only arrives as an operation of law to fix and keep within its boundaries the limits of reality, and the possible distances that it could trace with the fictive Nature” [3]. Roman law’s artificiality is a second-degree fiction that can no longer represent the state of things, but only the ‘as if’ of every probable manifestation. Fiction is always double, aware and checking its own artificiality. Agamben has appropriated Yan Thomas’ hermeneutical notion of ‘operations of law’ in an opportunity to ‘render inoperative’ the ‘politico-theological machine’ of Western governance. But this non-contained negation of principles speaks to Agamben’s anarchy, which differs from Derrida’s democracy to come. Later on in his life Derrida will establish a coterminous relation between fiction and justice as hyperbolic conditions of democracy.

I think an important moment appears in Rogues, where Derrida endorses a notion of democracy in possession of an “essential historicity” [sic] well beyond the subject and natural rights. Derrida also seems to be grappling with an evolving and transformative notion of democracy that cannot be subsumed either as vulgar historical as principle (arche) nor as reversed impolitical an-archy. One cannot evade history, but can one evade the fiction of democracy?

Back to the seminar. At the very end of the last session, Derrida reasserts that “it is not a matter of substituting one metaphor for another, which is the very movement of language and history, but of thinking this movement as such, thinking metaphor in metaphorizing as such, thinking the essence of metaphor (this is all Heidegger wants to do). There is thinking every time that this gesture occurs, in what is called science, poetry, metaphysics, and so on.” (Derrida 190).

So fiction cannot amount to a mere substitution for storytelling. Fiction should name the process of uncontained de-metaphorization within an evolving economy of democracy that has no political arche. The end of philosophical storytelling will open to a contamination of the turbulence of fiction by which the legal operation is always insufficient, but never deposed. The shift from the absolutist negation of the Roman fictio (the political as roman ratio according to the Parmenides lecture) to democracy as an essential historicity, retreats politics in the shadow of fiction. Couldn’t we say, assuming all the risks involved, that infrapolitics is also a reflection on the nature of fiction as a condition for democratic reinvention?

 

 

 

Notes

  1. Reiner Schürmann. “The One: Substance or Function”. Neoplatonism and Nature (ed. Michael F. Wagner). State University of New York Press, 2002.
  2. Jacques Derrida. Heidegger: The Question of Being and History. University of Chicago Press, 2016.
  3. Yan Thomas. “Fictio legis. L’empire de la fiction romaine et ses limites médiévales”, Droits, no 21, 1995.

“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.

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).