A “theory” is
an explanation of life and the world that attempts to encompass them in their
“totality” by “con-necting” their “parts” in a “systematic” manner that is
internally consistent and that, through this “consistent nexus rerum”, achieves the adaequatio
rei et intellectus of Scholastic fame. It follows that a theory must
connect the relationship of the parts to one another in a manner consistent
with the “systematicity” of the whole. Consequently, regardless of the content
of the theory, the con-nections between parts and of the parts in their
totality must be “necessary”. This “necessity” removes any “freedom” that the
parts may have had in relation to the totality in such a manner that the theory
admits of no “exception” that is not re-conducible to or con-sistent with the
totality and its “systematicity”.
This logical notion of “freedom” as the
opposite of logical necessity has nothing to do with the political notion of freedom. It is instead the opposite of
“contingency”, and in fact ought not to be called “freedom” at all! Freedom is
a political notion – the opposite of “coercion” (Arendt in ‘LotM’). Once the
notion of “freedom” is reduced to the opposite of logical necessity, then it
becomes mere “contingency” and is reduced to an “onto-logical” problem. The
fact is that, as we are demonstrating here, there is no such thing as “logical
necessity” so that all “truths” are “contingent”. But the fact that “truth” can be understood as “logical necessity”-
that the “necessity” of logic is what makes it “true” - and that “freedom” can
be mistaken for “contingency” means that “truth” or logical necessity can be
abused or be used instrumentally for the purpose of political coercion! By this
process, “freedom of the will” can be
mistaken for a “telos” that, by positing the “systematicity” of life and the
world as a “totality” becomes a quest for “freedom from the will” – which is what the negatives Denken claims whilst at the same time, by denying the
existence of “freedom” in a political sense (because it understands freedom
only ontologically), denies the possibility of political freedom or else
reduces it to contingency, to superfluity (Sartre’s “de trop”, Heidegger”s de-jection and Dasein as pro-ject). Freedom is understood then as “universal
Eris”, as total conflict so that freedom is no longer a function of the will
but the will becomes a function of “freedom” understood as cosmic “contingency”
(Schelling).
Arendt
correctly distinguishes between freedom (political) and contingency
(ontological), pointing to their discrete opposites – coercion or necessity,
and logical necessity or “irresistibility”. But she fails to see that there is
nothing “irresistible” or “true” about logico-mathematics and science, that
these are contingent, and that therefore these (contingent, arbitrary)
conventions can be utilized for the purposes of coercion by erecting
“measurable frameworks” of conduct (institutions) that force human conduct and
choices into “measurable” channels or behavioral straitjackets. The
“irresistibility” of mathesis can ec-sist only as a value, as “truth”, and
therefore as a “will to truth” that is “internalized” to coerce human
behaviour. This is the “necessity” of mathesis – precisely, a “restriction” or
channeling of human freedom understood not ontologically (as contingency, which
is categorically not, and can-not be affected
by mathesis) but rather politically.
The negatives Denken understands “free-dom”
as the battleground of conflict between wills. For Weber, for instance,
the individual will acts freely if it
acts “rationally”; and “rationality” is defined as the will’s choice of
adequate means in pursuit of its own ends. This “choice” the will makes is
therefore con-ditioned by the choices of other wills in conflict with it. In
essence, for Weber, rationality is the game-theoretic strategy that is chosen
by independent and conflicting wills freely
pursuing their irreconcilable ends or wants whose provision is scarce. The
“freedom” of the will is de-fined not intrinsically as in the ‘Freiheit’ of
German Idealism but rather instrumentally in terms of the relationship of given
means to projected ends. It is “free-dom” in the sense of “room to manoeuvre” (Ellenbongsraum) - to maneuvre against other wills, that is. Thus, there can be no
“freedom of the will” in the objective genitive. It is the will that is a
function of free-dom, not the other way around – which means that the “freedom
of the will” has no positive universalistic telos or inter esse, but is rather the op-posite, the contrary of this inter esse. For the negatives Denken there is no “freedom” in an ab-solute, idealistic
sense: freedom exists only as “contingency”, as the opposite of “necessity”,
not of “co-ercion” - onto-logically, not politically! And insofar as there is
freedom, as in Schopenhauer or Heidegger, this ec-sists only as
“transcendence”, as a “leap of faith”, as “intelligible freedom” (even in
Kant), as “astute theology” (note the etymological link between “theory” and
“theo-logy”).
The negatives Denken replaces the Idealist Freiheit which, as we have seen, turns
by reason of its “systematicity” into a quest for “freedom from the will”, from its “arbitrariness”, with the conversion of
this teleological “freedom” into an instrumental “free-dom”, one that is
intended not as a telos, as an aspiration, but rather as its opposite, as
“contingence”, a mere lack of conceptual or material “necessity”; and thus it
conceives of the Will as an antagonistic “universal condition”, as the obverse
of Kant’s Dinge an sich. The
de-struction of the telos of “freedom” invites and elicits the destruction of
any “system”, of any teleological “rule” by means of “the exception”. For the negatives Denken the exception is not
what con-firms the rule, not Hegel’s
negation that is meaningfully re-absorbed by the “negation of the negation”. No
such “repechage” is possible.
Instead, it is the exception that determines the very essence of the rule, the “truth” of the system, by de-fining its limits. Schmitt quotes from Kierkegaard
(in PT, p15): “The exception explains the general [the rule, the system] and
itself.” Yet if the exception “explains the general”, it can do so only if it
“de-structs” the general or rule or system – if it negates the “system” as a
“totality”, as “truth”. Any attempt to erect the system to a universal
application – as the Sozialismus seeks to do in politics – will result only in
the suppression of any “free-dom” that remains beyond the grasp of the system
and within the purview of the exception. Schmitt writes (p15):
It would be consequent rationalism to say that the exception
proves nothing and that only the normal can be the object of scientific
interest. The exception confounds the unity and order of the rationalist
scheme.
Here the negatives Denken can conceive of the
will only as a destructive force that “works” or “uses” the world only in the
sense of “consuming” it – because the opposite, the will and its Arbeit as the “creation” of “wealth”,
would entail the possibility of a “common-wealth”,
of an inter esse common to all wills,
and not merely a subjective “greed-dom” or appetitus.
This de-struction of “truth”, of the telos of freedom, entails also the
de-struction of Reason and the Ratio as the summum
bonum of humanity, as the Platonic Good. In this perspective, not only can
the Logic not be a “science” as in Hegel and even in Kant where synthetic a
priori judgements are made “possible” by Reason, but it becomes a mere
instrument of the intellect – this last understood as mere perceptions or
sensations (Empfindungen) in accordance
with causality and the principle of sufficient reason. Yet in much of the negatives Denken, from Schopenhauer to
Weber for instance, the attachment to “science and rationality” (even when
conceived as instrumental) remains steadfast. We have seen that Nietzsche
ridicules this Schopenhauerian atavistic attachment to “scientific and logical
rationality”, although it was his “Educator” who first insisted on the purely
“instrumental”, non-theological,
ontological status of logic (see G. Piana, ‘Commenti su Schopenhauer.’, 2). Schmitt
remains attached to this “juridical” notion of the exception:
That a neo-Kantian like
Kelsen does not know what to do with the exception is obvious. But it should be
of interest to the rationalist that the legal system itself can anticipate the
exception and can “suspend itself”….But how the systematic unity and order can
suspend itself in a concrete case is difficult to construe, and yet it remains
a juristic problem as long as the exception is distinguishable from a juristic
chaos, from any kind of anarchy…From where does the law obtain this force, and how is it logically possible [m.e.] that a norm is
valid except for one concrete case that it cannot factually determine? (p15)
We saw earlier
in our Weberbuch that Bobbio moves
the same objection to Weber and Kelsen against the neo-Kantian determination of
“the Norm” and its sociological implications – the fact that “Norm” must
include also the notion of “apparatus” or “coaction” wherewith it can be en-forced. This calls into question the
notion of “the State”, which Schmitt so far does not explain. For the state of
exception is one that, like the Hobbesian and Schopenhauerian and Nietzschean,
calls into question the entire socio-ontological foundation of the state and
society, and not merely the concept of a “juridical legal order”. Schmitt
correctly identifies the two moments of the legal order – the norm, what gives
“legitimacy” to the legal order, and the decision, which gives effect to the
“legal order” when it has “legality”. But the two moments – legitimacy and norm
on one side and legality and decision on the other – remain distinct and
separate to the point that they are aporetic and irreconcilable: this is the
reality that “the exception” and the state of exception expose, regardless of
whether the “state” of exception is an organized state or a state of anarchy!
By pre-serving the conceptual legitimacy of “the state” as an entity Schmitt
has a-voided the question that he had posed himself originally: - that is, how can
a “state” exist as the foundation of a legal order founded on a “norm” when in
fact the exception shows that it has no socio-ontological foundation?
A jurisprudence concerned with ordinary day-today
questions has practically no interest in the concept
of sovereignty.
Only the recognizable is its normal concern;
everything
else is a "disturbance." Such a
jurisprudence confronts the extreme
case disconcertedly, for not every extraordinary
measure,
not every police emergency measure or emergency
decree, is
necessarily an exception. What characterizes an
exception is principally
unlimited authority, which means the suspension of the
entire existing order. In such a situation it is clear
that the state
remains, whereas law recedes. Because the exception is
different
from anarchy and chaos, order in the juristic sense
still prevails
even if it is not of the
ordinary kind. (PT, p13)
Let us recall
that even for general equilibrium theory in economics it is those
“disturbances” or “noise” that challenge the validity of the theory. Schmitt
does well to challenge “normal jurisprudence” (legal positivism in large part).
But he is wrong to insist on the “legality” of the state of exception and of its political State – because the
exception challenges both “normality” as well as its enforcer, the State, whose
entire legitimacy and legality is destroyed by the exception!
The existence of the state is undoubted proof of its
superiority
over the validity of the legal norm. The decision
frees itself from
all normative ties and becomes in the true sense
absolute. The
state suspends the law in the exception on the basis
of its right
of self-preservation, as one would say. The two
elements of the
concept legal order are then dissolved into independent notions
and thereby testify to their conceptual independence.
Unlike the
normal situation, when the autonomous moment of the
decision
recedes to a minimum, the norm is destroyed in the
exception. (p13)
In fact, more than just the norm is
“destroyed” by the exception: the legitimacy and legality of the legal order
and of its State is destroyed as well – and our task is to find out how this
can be so and why.
The exception remains, nevertheless, accessible to
jurisprudence [14]
because both elements, the norm as well as the decision,
remain
within the framework of the juristic.
It would be a distortion of the schematic disjunction
between
sociology and jurisprudence if one were to say that
the exception
has no juristic significance and is therefore
"sociology." The
exception is that which cannot be subsumed; it defies
general
codification, but it simultaneously reveals a
specifically juristic
element - the decision in absolute purity. The
exception appears
in its absolute form when a situation in which legal
prescriptions
can be valid must first be brought about. Every
general norm
demands a normal, everyday frame of life to which it
can be
factually applied and which is subjected to
its regulations. The
norm requires a homogeneous medium. This effective
normal
situation is not a mere "superficial
presupposition" that a jurist
can ignore; that situation belongs precisely to its
immanent validity.
There exists no norm that is applicable to chaos. For
a
legal order to make sense, a normal situation must
exist, and
he is sovereign who definitely decides whether this
normal situation
actually exists.
All law is "situational law." The sovereign
produces and guarantees
the situation in its totality. He has the monopoly
over this
last decision. Therein resides the essence of the
state's sovereignty,
which must be juristically defined correctly, not as
the monopoly
to coerce or to rule, but as the monopoly to decide.
The exception
reveals most clearly the essence of the state's
authority. The
decision parts here from the legal norm, and (to formulate
it
paradoxically) authority proves that to produce law it
need not
be based on law. (pp13-4)
The fact that a “legal order” requires
the “legitimacy” of the norm and the “legality” of the decision does not mean
that, once the exception obtains, this “exceptional decision” remains “within the framework of the juristic”,
because that begs the question of why “the juristic” brought about a
“situation” in which the existing legal order could be “suspended” to allow
“the decision on the exception” on which, Schmitt tells us, sovereignty is
founded. “Sovereignty”, but not necessarily “authority”! This is why Schmitt is
wrong to affirm as he does above that
[t]he exception reveals most clearly the essence of
the state's authority. The
decision parts here from the legal norm, and (to
formulate it
paradoxically) authority proves that to produce law it
need not
be based on law.
On the contrary, we say, the decision on the exception actually puts in
question (!) the State’s authority
because the State could not have come to be a “State of exception” had its
“authority” not been seriously undermined in the society governed by its legal
order! The fact that Schmitt feels impelled to introduce without further
explanation the novel notion of authority
“to prove that to produce law [the State] need not be based on law” is further
evidence of his confusion on this point.
Schmitt’s analysis of the legal order
as characterized by norm and decision -
which in turn gives rise to the division of jurisprudential doctrines into
normativist and decisionist – is analogous to our earlier discussion of the
notion of “arbitrium” which, in its moment as arbitration, involves an element
of “judgement” founded on rational principles, but then in its “arbitrary”
moment is characterized by the actual decision which is no longer based on
rational principles but rather resides with the actual person (or “will”)
responsible for making that decision. Irrespective of how this responsible
person is appointed or charged with making a decision, the ultimate
arbitrariness of the process cannot be gainsaid. This is the limit of Weberian
rationality (discussed by Schmitt on p27), one whose “formal” properties, in
the absence of any “substantive” element of human inter esse, must ultimately be founded on irrational principles.
This salient point is made quite validly by Lowith in his review of Schmitt’s
jurisprudence because Schmitt, unlike Nietzsche, never moves beyond the
challenge of “the rule” (the rationalist order or system) and insists instead
on the “juristic” nature of the decision on the exception. In other words,
Schmitt himself, though challenging normativism and positivism from the “wholly
other” of the exception or “disturbance”, simply fails to tackle critically the
entire notion of law and of the legal order. Schmitt understands “the
political” in a Hobbesian sense – the state of nature as a status belli in which the State does not play a “neutral” role but
an interested one that includes its self-preservation. But the elision of the complex
transition from individuals to association to “State” or res publica or common-wealth is never outlined or even tackled by
Schmitt who simply hypostatizes the State uncritically as an “Idol”. This is
the basis of Lowith’s critique, although he focuses on the role of the
“individual” in any association that becomes a legal order with a State.
El puro decisionismo, tal como
por Hobbes, presupone un
"desorden" que sólo puede convertirse
en un orden por medio de la
decisión; esta decisión aparece, pero ahora
también ella misma, como
ordenada,
cuya expresión jurídica es el pensamiento del
y ya no el pensamiento en el
sentido de mera decisión.83 (p77 in ‘Heidegger’)
In what Schmitt calls “the age of
neutralization”, the terminus ad quem
of romanticism is to attain the realization of “the system” so as to eliminate
conflict from social life and with it to
neutralize “the political”. This is the aim of all scientism and rationalism.
But by “the political”, Schmitt means “conflict”, its ineluctability even and
especially in the state of nature. Hobbes saw the political as the way out of the state of nature, which he
conceived of as pre-political. His
starting point was the in-dividuum,
just like the point in Euclid
This is why the State is not and cannot
be “wholly other” or “neutral”, like the Protestant God or the State of Law
To be sure, Protestant theology
presents a different, supposedly unpolitical doctrine, conceiving
of God as the "wholly other," just as in
political liberalism the
state and politics are conceived of as the
"wholly other." We
have come to recognize that the political is the
total, and as a
result we know that any decision about whether
something is
unpolitical is always a political
decision, irrespective of who decides
and what reasons are advanced. This also holds for the
question
whether a particular theology is a political or an
unpolitical
theology. (p2)
As the defensor pacis (Marsilius), the State is not the pro-duct of the
con-vergence or con-vention of individual self-interests as found in the state
of nature (the degree zero of politics). Rather, the State is a direct product
of the conflict, of the di-vergence
of these self-interests – so that the State remains conceptually tied to the
state of nature – it does not transcend it. There is no “meeting of the minds”
or wills upon which the State can be founded; rather, the State is the
sovereign that can preserve social peace not by “mediating” or “reconciling”
the conflicting interests of the state of nature, but rather by ensuring that
“friends” keep the “foes” in check. The State is not a pro-duct of law, and
thence sub-ordinate to law. Instead, the State as sovereign determines the
“content” of the law, it does not “ascertain” it; it does not “find” it; it
“creates” it. This is contrary to the legal positivism of Kelsen and Krabbe
that Schmitt sternly eschews:
[For Krabbe, t]he state is confined exclusively to
producing law. But this
does not mean that it produces the content of law. It does nothing
but ascertain
the legal value of interests as it springs from the
people's feeling or sense of right. Therein resides a
double limitation:
first, a limitation on law, in contrast with interest
or welfare,
in short, with what is known in Kantian jurisprudence
as "matter";
second, a limitation on the declaratory but by no
means constitutive
act of ascertaining. I will show that the problem of
law
as a substantial form lies precisely in this act of
ascertaining. (PT, p23)
The genius of Hobbes was to posit the
alienation of personal freedom (the freedom
of the will) for the sake of the preservation of life: this last is what
supplies the con-ventum, the
agreement on which the State as “common wealth” can be erected consistently – the
“system” or “order” or “freedom from
the will”. This is the “truth”, the rationalist inter esse of Hobbes’s political theory that is exalted in all the
“liberalist” interpretations of his theory (starting with Leo Strauss). But for
Schmitt, no such inter esse exists or
can exist – because the State is not super
partes; it is a “partisan” that de-fines the political boundary between
friend and foe, – a boundary that is absolutely inescapable not merely in foro externo, with regard to other, foreign States, but also and
above all with regard to the conflicts internal to the “state”, in foro interno. And herein lies the
paramount importance of “the exception”. The State, or the sovereign, is “he
who decides on the exception”. This “de-cision” is – as I now style it – an
incision in time: it is a pivotal point that “arbitrarily”, not rationally or
“systematically” or “formally”, founds the battleground
of politics and thus protects and
preserves the social peace. Protection that must be traded for obedience: – not
(!) in a “con-sensual” manner; only in an “authoritarian” fashion.
Among the newer representatives of association theory
is Kurt
Wolzendorff, who has tried to use the theory to solve
"the problem
of a new epoch of state”. Among his numerous works,'^
his last
is of the greatest interest here. Its starting point
is that the state
needs law and law needs the state; but "law, as
the deeper
principle, holds the state in check in the final
analysis." The state
is the original power of rule, but it is so as the
power of order,
as the "form" of national life and not an arbitrary force applied
by just any authority. What is demanded of this power
is that
it intervene only when the free individual or
associational act
proves to be insufficient; it should remain in the
background as
the ultima ratio. What is subject to order must not be coupled
with economic, social, or cultural interests; these
must be left to
self-government. That a certain "maturity"
belongs to self-government
could, incidentally, make Wolzendorff’s postulates
dangerous, because in historical reality such
historical-pedagogic
problems often take an unexpected turn from discussion
to dictatorship.
WolzendorfF's pure state confines itself to
maintaining
order. To this state also belongs the formation of
law, because
all law is simultaneously a problem of the existence
of the state
order. The state should preserve law; it is
"guardian, not master,"
guardian, not a mere "blind servant," and
"responsible and ultimate
guarantor." Wolzendorff sees in the idea of
soviets an
expression of this tendency to associational
self-government, to
confining the state to the "pure" function
that belongs to it.
I don't
believe that Wolzendorff was aware of how close he
came with
his "ultimate guarantor" to the authoritarian theory
of the
state, which is so completely antithetical to the associational
and
democratic conception of the state. This
is why his last work,
compared with those of Krabbe and other
representatives of the
association theory mentioned, is particularly
important. It focuses
the
discussion on the decisive concept, namely, that
of the form
in its substantive sense. The
authority of the order is valued so
highly, and
the function of guarantor is of such independence,
that the
state is no longer only the ascertainer or the "externally
formal"
transformer of the idea of law. The problem that arises
is to what
extent, with legal-logical necessity,
every ascertainment
and decision
contains a constitutive element, an
intrinsic value
of form.
(PT, pp25-6)
It is the “maturity” of the
“association” (the Gemeinschaft of
Tonnies, Gierke) that Schmitt disputes. Only the State, by “protecting” its
“friends”, can ensure that its “foes” do not subvert the legal order. The
“formal” or “normative” (neo-Kantian) approach to the legal order can be
counterproductive or even self-destructive when its “formal guarantees”
(Constant) are exploited by the “foes” of the State so as to undermine the
authority of “the ultimate guarantor”, the State. It is at that precise stage
that the State must declare a “state of exception”, suspend the existing legal
order, and take all necessary actions to protect its “friends” and re-establish
a fresh legal order or restore the old one. There is no neutrality in the State: the State must decide when a “state of exception” exists. This “exception” and the
“decision” that enacts it challenge the “normative” approach to law and the
legal order by ex-posing the “political” or substantive rather than
“jurisprudential” or formal foundations of all legal orders.
The objections that those most erudite
liberal critics of Schmitt, from Leo Strauss to Lowith, move to his theory of
politics all presume the existence of
a Ratio-Ordo that legally-logically – “necessarily” – requires the State to be
subordinate to “the law”, whose “content” is then supposed to “emerge” or
“spring” from the “community”. Yet, if this comunitas
actually existed, if its truth were real,
then there would be no need of a “State” in the first place! Contra Schmitt,
however, it can be said that he fails to explain how a State can come into
being at all! Yes, indeed: a “decision” may be “auf Nichts gestellt” – “be taken out of nothing”, that is, be the
product of pure arbitrium -, but not
a “State”, because a State is composed of “in-dividuals” whose self-interests
must somehow converge so as to form a “friend-ship”, a group of “friends”
opposed to their “foes”: and this con-vergence or conventum, must have a “con-ventional” basis that as such can be
recognized by all parties to it. Schmitt makes the fundamental error of
thinking that there can be an “intrinsic value of form” (see above), that form
and substance can meet in the “decision” because the decision is “exceptional”
with respect to what is the “normal” legal order, and seeks to preserve it. But
if this were correct, then it would be the “normal” that explains the
“exception”, and not the other way around as Schmitt had argued earlier! His
notion of “decision” is simply too formal, it lacks sub-stance, and therefore
cannot provide a proper account of the State – even one that challenges the ratio or telos of its classical theories.
No comments:
Post a Comment