Friday, 17 August 2012

Freedom and Necessity in the Negatives Denken

Two recent events, though apparently unconnected and disparate, have brought home over the last day the utterly vile, execrable, odious and deleterious character of the capitalist oligarchies that rule the entire planet today, from Washington to Beijing to London and Johannesburg: - the abominable contortions of that most vile and cowardly of cowards, the British Prime Minister David Cameron who has taken the decision to persecute Julian Assange, and that equally bestial government of Zuma's in South Africa that has ferociously butchered 34 innocent and hard-working miners on behalf of a multinational corporation, Lonmin.

Let each and everyone of these egregious, cold-blooded assassins and persecutors of us revolutionaries know that we will not rest, we will have no peace until we have persecuted and hunted down each and everyone of them and have brought to bear the full weight of revolutionary justice upon these cold-blooded serpents. 

For the moment, we are bringing forward the publication of this piece on "Freedom and Necessity", which is a revised and improved version of an earlier piece, wherein we discuss a new conception of a framework of political analysis upon which we may found our revolutionary and insurrectional thoughts and actions.

Freedom and Necessity - Schmitt and the Exception

A. The Exception and the Rule

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. Indeed, political freedom is not analogous to “contingency” or “chance”, it is instead their opposite 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 or scientific “necessity”- that the “necessity” of logic or science is what makes it “true” - and that “freedom” can be mistaken for “contingency” or “chance” means that “truth” or logico-mathematical 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), it 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).

It is this reduction of political freedom to contingency or chance – to free-dom - that is clearly unacceptable in the negatives Denken. Yet the valuable and valid aspect of the remarkably novel and revealing approach to freedom taken by the negatives Denken is that it re-introduces the notion of “decision” (in Schmitt, “resolve” [Gewiss] in Nietzsche, and “resoluteness” or “dis-closure” [Entschlossenheit] in Heidegger), and therefore of the effect of one will coming into conflict with another, which is the essence of the Political.

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 also are contingent and conventional, 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 manoeuvre 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.

This crucial kernel of Weber’s Wissenschaftslehre is clearly perceived by the great jusnaturalist philosopher Leo Strauss in a passage that is worth quoting for its impressive perspicacity:

Let us assume
that we had genuine knowledge of right and wrong, or
of the Ought, or of the true value system. That knowledge,
while not derived from empirical science, would legitimately
direct all empirical social science; it would be the foundation
of a l l empirical social science. For social science is meant to be
of practical value. It tries to find means for given ends. For this
purpose it has to understand the ends. Regardless of whether
the ends are " g i v e n " in a different manner from the means, the
end and the means belong together; therefore, "the end belongs
to the same science as the means."9 If there were genuine
knowledge of the ends, that knowledge would naturally guide
all search for means. There would be no reason to delegate
knowledge of the ends to social philosophy and the search for
the means to an independent social science. Based on genuine
knowledge of the true ends, social science would search for the
proper means to those ends; it would lead up to objective and
specific value judgments regarding policies. Social science
would be a truly policy-making, not to say architectonic, science
rather than a mere supplier of data for the teal policymakers.
The true reason why Weber insisted on the ethically
neutral character of social science as well as of social philosophy
was, then, not his belief in the fundamental opposition of
the Is and the Ought but his belief that there cannot be any
genuine knowledge of the Ought. He denied to man any science,
empirical or rational, any knowledge, scientific or philosophic,
of the true value system: the true value system does
not exist; there is a variety of values which are of the same
rank, whose demands conflict with one another, and whose
conflict cannot be solved by human reason. Social science or
social philosophy can do no more than clarify that conflict and
all i t s implications; the solution has to be left to the free, nonrational
decision of each individual.
I contend that Weber's thesis necessarily leads to nihilism or
to the view that every preference, however evil, base, or insane,
has to be judged before the tribunal of reason to be as
legitimate as any other preference. (L. Strauss in Natural Right and History)

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”, as the ab-strusion of the Will from the world either as “self-awareness” (even in Kant’s “astute theology” [note the etymological link between “theory” and “theo-logy”]) or as the possibility of “nothing-ness”, as “pro-ject” (as in Heidegger’s Da-sein).

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 “decision”, and therefore 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” and its reduction to conflictual and contingent “free-dom” invites and elicits the destruction of any “system”, of any teleological “rule” by means of “the exception”. The only real “decision” possible is ultimately a “decision on the exception”. For the negatives Denken the exception and the decision it entails necessarily is not what con-firms the rule, not Hegel’s negation that is meaningfully and dialectically re-absorbed within the rational “System or Science of Logic” by the “negation of the negation”. No such “repechage” is possible for the negatives Denken. 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 with the harmonious State-less society and in politics with the just remuneration of “labour value” – 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 negatively 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. (Lukacs’s indictment of this tragic denouement into what he calls “nihilism” in Der Zerstorung der Vernunft and his late-Romantic championing of “Reason” is pathetic in the extreme and serves only to highlight the Wille zur Ohnmacht of the Linkskommunismus at the time of the Weimar Republic.)  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?

If measures undertaken in an exception could be circumscribed
by mutual control, by imposing a time limit, or finally, as in the
liberal constitutional procedure governing a state of siege, by
enumerating extraordinary powers, the question of sovereignty
would then be considered less significant but would certainly not
be eliminated. A jurisprudence concerned with ordinary day-to-day
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, pp13-13)

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. It is therefore incongruous and inconsistent with his realist-decisionist approach to political theory for Schmitt to insist that “[in] the normal situation, ….the autonomous moment of the decision
recedes to a minimum”, because this “minimum” is “the spoonful of tar that spoils the barrel of honey”!

We cannot therefore agree with what Schmitt contends below:

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. (p13)

But “the exception” assumes paramount importance in Schmitt’s unquestionably provocative reformulation of the theory of the state and of legal order not for the occurrence of the sovereign deciding that a “normal situation actually exists”, but rather for deciding the opposite – that a normal situation does not exist and that a “state of exception” is declared! The extent of Schmitt’s confusion is amply demonstrated by the suite to this paragraph:

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”! Yes, indeed, “[t]he 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”. But in “parting from the legal norm” the decision actually radically questions, challenges and finally negates the legal-logical foundations of both the legal norm and of the State’s “authority” as well! The decision on the exception actually negates (!) the State’s authority except in its meaning as “coercion and coaction” 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.

B. The Decision and the Will

Schmitt perceives the difficulty, which explains why he seeks to compromise his formulation of the pivotal relation of exception and decision:

The assertion that the exception is truly appropriate for the
juristic definition of sovereignty has a systematic, legal-logical foundation.
The decision on the exception is a decision in the
true sense of the word. Because a general norm, as represented
by an ordinary legal prescription, can never encompass a total
exception, the decision that a real exception exists cannot therefore
be entirely derived from this norm. (PT, pp5-6)

Yet, if “the decision that a real exception exists cannot therefore be entirely derived from this [general] norm”, then no decision on the exception can ever be “a decision in the true sense of the word” because its “decisiveness”, its “quiddity” or “facticity” is then violated or vitiated by the fact that it is partially derived from the general norm that re-conduces it to the sphere of the “juristic”. Schmitt has here resurrected the neo-Kantian conception of law and the State. That explains why he is then impelled to resort to the notion of sovereignty as “a systematic, legal-logical foundation” – quite an “exceptional” (!) claim for the theoretician of the exception as the subversion of rational systems! Again, in the attempt to recuperate this systematic-rational concept of “sovereignty” – “which must be juristically defined correctly”! - for the State within the homology of the neo-Kantian legal form, Schmitt is even prepared to call into play (in the tradition of Jaspers and Lukacs) the notion of “totality”. - All of which is antinomic to the notion of “exception” that Schmitt champions in this work!

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 (in ‘The Philosophy of the Flesh’) of “arbitrium” which, in its moment as arbitration, involves an element of “judgement” founded on “rational” principles (understood even in a Weberian fashion), but then in its “arbitrary” moment is characterized by the actual decision which is no longer based on rational legal-logical or formal 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 as well as of the content of the decision cannot be gainsaid.

Schmitt incisively proves this argument by pointing out that even a “wrong” or “false” decision remains a “valid” decision from this perspective!

That the legal idea cannot translate itself independently can be is evident from the fact that it says nothing about who should apply it….That it is the instance of competence that renders a decision, makes the decision relative, and in certain circumstances absolute and independent of the correctness of its content….A legal validity is attributed to a wrong and faulty decision. The wrong decision assumes a constitutive element precisely because of its falseness. (PT, p31)

It is the fact – the substantive content of a decision, its “effectuality” – that even a “false” or “wrong” decision is still a “valid” decision that shows conclusively how dependent the legal idea or norm is on the authority of the person who decides – which the legal idea as such cannot indicate. Schmitt’s devastatingly blunt argument here is entirely identical with Nietzsche’s apocalyptic remark in Wille zur Macht that “seen from the moral viewpoint, the world is false”! What is “false”, of course, is the moral viewpoint and not the world, because it is the world that enables and constitutes the moral viewpoint. Similarly with the legal norm, it is the norm and not the decision, not the personality of the decision, the Sovereign, that can be “false” – not the other way around!

Kelsen solved the problem of the concept of sovereignty by
negating it. The result of his deduction is that "the concept of
sovereignty must be radically repressed." This is in fact the old
liberal negation of the state vis-i-vis law and the disregard of
the independent problem of the realization of law. This conception
has received a significant exposition by Hugo Krabbe. His theory
of the sovereignty of laws rests on the thesis that it is not the
state but law that is sovereign. (PT, p21)

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 what are in its own terms “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 fue defendido de manera clásica
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 una decisión para una "vida comunitaria"
ordenada, cuya expresión jurídica es el pensamiento del orden
y ya no el pensamiento en el sentido de mera decisión.83 (p77 in ‘Heidegger’)

This is the ambivalence in Schmitt: on one hand, the decision is a “qualified decision”, that is, a “judgement” that presupposes a criterion of whether or not an “order” or “normality” exists. On the other hand, the decision, in its arbitrariness, is not subject to any pre-existing criteria whatsoever – it is sheer naked violence. That is why Lowith is both right to criticize Schmitt’s decision for being “auf Nichts gestellt” – but at the same time he is wrong because it is this “nothing” that founds the violence of the “mere decision”, its “facticity” – life as exploitation (Nietzsche). 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 once again 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.

And therein 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, but only in an “authoritarian” fashion.

‘Sovereign is he who decides on the exception.'
Only this definition can do justice to a borderline concept.
Contrary to the imprecise terminology that is found in popular
literature, a borderline concept is not a vague concept, but one
pertaining to the outermost sphere. This definition of sovereignty
must therefore be associated with a borderline case and not with
routine. It will soon become clear that the exception is to be
understood to refer to a general concept in the theory of the
state, and not merely to a construct applied to any emergency
decree or state of siege.

There are two sides to the decision, then – two sides of the “border-line”. One side belongs to the establishment of the “legal norm” so that “normal decisions” can be made as “routine”. The other side of the decision, however, is its real foundation, its “facticity” that simply cannot be com-prehended as part of the norm, of a rule or order or system or unity or “totality”, or indeed of “truth”. It is this “materiality” or substantiality of the decision that makes Schmitt invoke Hobbes approvingly: “Auctoritas, non veritas facit legem”. The exception, therefore, is the “truth” of “normality”, as Schmitt claims. But as this obverse, as this “wholly other” of the legal norm, the decision itself – as e-voked by the exception – is not and cannot be com-prehended by the “norm”, because it lies wholly outside the norm! (Recall our discussion of Arendt’s “constituent power” and “constituted power” in Part Four of the Weberbuch.) The decision on the exception, which is the mark and seal of sovereignty, is an “either-or”, an “aut-aut” that founds the legal norm. This legal norm, in turn, grants “legality” to the sovereign but it does not itself have “legitimacy”. The legitimacy of the legal norm is its “legality” – but legality cannot legitimate the legal norm. Only if the law possessed an implicit “truth” could it found itself, legitimate itself. But it does not: the “truth” of the law is “authority”, the “fact” of the decision, its power to coerce, its command, which cannot be founded on “legality” but on “legitimacy” or “competence”.

The legal prescription, as the norm of decision, only designates how
decisions should be made, not who should decide. In the absence of a
pivotal authority, anybody can refer to the correctness of the content.
But the pivotal authority is not derived from the norm of decision.
Accordingly, the question is that of competence, a question that
cannot be raised by and much less answered from the content
of the legal quality of a maxim. (PT, pp32-3­)

[A similar argument, though from “rationalist” positions, is made by Rafael Agapito in his lengthy and appreciable introduction to the Spanish translation of El Concepto de la Politica. With unusual perspicacity, Agapito explains how Schmitt – so keen to supplant the “juridic form” with the “political substance” of the decision – succumbs to his own brand of formalism, in that the decision, as an ultimate instance or ultima ratio, becomes simply an onto-logical category, that of “facticity” or “quidditas” (Dass-Sein), and not what Schmitt intended it to be originally, a historical-substantive and political, as well as part-juridical one. The merit of Agapito’s review and critique of Schmitt is to have seen that “the political” is not and cannot be “irreconcilable” or “eristic”, as Schmitt and the entire negatives Denken (its “negativity” consists largely in this) presume – because at the very least, as in Hobbes’s version of it as “the fear of death” (not its inevitability, as in Heidegger, but its “fear”), the Political must involve an element of inter-subjectivity, the “foundation”, the co-hesion of the “polity” and the “disputandum” that it occasions.  Yet the vice of his critique is to posit the requisite “inter-subjectivity” still in terms of what lies between subjects that remain irreducibly “in-dividual”, a-tomic and atomized. Consequently, Agapito elevates and even glorifies the liberal-bourgeois “Constitution” without looking closely at the effective correspondence of this Constitution to the “will of the people”: he approaches the liberal legal order in terms of its own self-understanding and not in terms of “material Constitution” – which is essentially the critique that Marx moved against Hegel’s theory of the State. Agapito pretends to substitute idealistically if not ideologically the “arbitrary, conjunctural will” of the negatives Denken with the “social unity”, as against mere “homogeneity of the people” that Schmitt refutes, supposedly supplied by a mythical “intersubjective criterion” that Agapito recklessly attributes to liberal bourgeois constitutions!

La razón última de este dilema ha de buscarse menos en el concepto
mismo de soberanía que en cómo se concibe el sujeto de ésta:
éste se entiende comúnmente como pura voluntad en abstracto,
como voluntad subjetiva_y empírica de los individuos a los que concierne
ese principio democrático. Se trata en consecuencia de una voluntad
de carácter arbitrario, coyuntural, que no puede fundar ninguna
unidad social. De ahí derivan las aporías a que conduce este dilema.
La voluntad política (ya sea constituyente o ya sea ordinaria) se define
como «poder», porque esa realidad meramente empírica de voluntades
subjetivas y discretas no incluye ningún criterio intersubjetivo,
y en consecuencia no puede dar lugar más que a la lucha y a la
imposición de posiciones unilateralmente definidas. (Agapito, Intro to El COncepto, p31.)]

For Schmitt, politics means conflict, even to the extent that the “sovereignty” or “authority” of the State is disputed. For Hobbes, political theory entails the end of politics. Auctoritas, non veritas facit legem: Hobbes admits that his “subjects” cannot engage in a contractum unionis unless this becomes im-mediately a contractum subjectionis. But how can this be? What value does life or the fear of death have in Hobbes’s theory that can lead out of the bellum civium? There is a glaring contradiction here between the “truth” or Ratio of the preservation of life – this inter esse – and the “authority” that is needed to found the Law of the social contract, and the State with it. This is quite apart from the inability of Hobbesian theory to explain the “distribution” of “power” in a society, except in a “mechanical” manner – which cannot account for historical transformations. If a historical state of nature exists, in which “life is nasty brutish and short” – how can the self-same individuals who populate the state of nature, mere a-toms who do not share anything except their con-flicting free-doms, agree to exit it?

Hobbes says that “power” as a Euclidean (geometric) and Galileian-Newtonian (mechanical) hypothesis can be hypostatized in the State, by rational convention: thus “scientific rationality” is comforted by “rational free choice”: freedom and necessity are reconciled. In Schmitt’s words, for Hobbes “the machine runs itself”! Schmitt and Heidegger reject this possibility as the idealistic mirage of the era of bourgeois Enlightenment. For Hobbes, infinitely small points can form a line; for Schmitt instead, more consistently, the line remains a point. For Hobbes, the facticity of authority does turn into the truth of law and the State through the rational free choice of self-interested individuals in the state of nature. In Schmitt, instead, the facticity of authority rules over the law and the State – which is why the authority of law and the State (“the force of law”) must return to the subject of the decision, the command and the in-divisible will of the sovereign in-dividual.

Words such as order, system, and unity are only circumscriptions of
the same postulate, which must demonstrate how it can be fulfilled in
its purity. It has to be shown how a system can arise on the foundation
of a "constitution" (which is either a further tautological circumscription
of the "unity" or a brutal sociopolitical reality). The systematic
unity is, according to Kelsen, an "independent act of juristic
perception. "
Let us for now disregard the interesting mathematical assumption
that a point must be an order as well as a system and
must also be identical with a norm; let us ask another question:
On what does the intellectual necessity and objectivity of the
various ascriptions with the various points of ascription rest if it
does not rest on a positive determination, on a command? (p20)

For Schmitt the Euclidean line retains the essential properties of the point, the point cannot “merge” into a line except through a meta-physical projectio per hiatus irrationalem. – The Sovereign or the State remains an individual, an indivisible will. The Sover-reign may “reign” but not “rule” only in situations or legal orders, from constitutional monarchies to liberal parliamentary democracies, in which the ultima ratio, the ultimate foundation of authority or “competence” is carefully hidden from view. But in the naked brutal reality of the Political the indivisibility of decision and sovereignty cannot be avoided.

The decisive point about Bodin's
concept is that by referring to the emergency, he reduced his
analysis of the relationships between prince and estates to a
simple either/or.
This is what is truly impressive in his definition of sovereignty;
by considering sovereignty to be indivisible, he finally settled the
question of power in the state. His scholarly accomplishment and
the basis for his success thus reside in his having incorporated
the decision into the concept of sovereignty.(p8)

This is why the State is not and cannot be “wholly other” or “neutral”, like the Protestant God or the State of Law of Political Economy. The State does not stand, as in Hobbes and the liberal tradition, au dessus de la melee: it is an interest in society; its interest is the preservation of itself as “state”, as the legal order. And this preservation depends on a political “decision”, on sovereignty that is not assigned by law but that is rather the very “content” of law. As the defensor pacis (Marsilius), the State is for Schmitt 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), even as the Hobbesian ultima ratio of avoiding death. 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” the law; it does not “find” it; it “creates” it.

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, and its self-interest, which consisted principally of the a-voidance of death and the pre-servation of life. This is the foundation of the “common weal and therefrom, mechanically or more geometrico, of the common-wealth, of the State. As in Euclid, Hobbes’s “point” or individuum “merges” miraculously into the “line” of the common weal, of the social contract. Schmitt instead starts with the State as an interested party in what is the political state of nature, which, contrary to Hobbes, does not begin with individual self-interest but rather with the division of humanity into “friends and foes”. For Schmitt therefore the state of nature is not pre-political, as it is in Hobbes, but rather the very essence of the political because its bellum civium – its conflict between “friend” and “foe”, rather than between atomized self-interested in-dividuals – is one in which even the Sovereign takes part. The Sovereign rules at all times – he never simply “reigns”. (Cf. the famous review of Schmitt by Leo-Strauss.)

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)

Hobbes’s Leviathan is a deus mortalis because, like a god, it is the incarnation of the Ratio of the will and therefore it cannot be merely “mortal”, like any individual, because its mechanistic scientific hypothesis is sustained by the “immortal” or divine Ratio of the free will that allows the reaching of a social contract, of the con-vention. On the other hand, however, Hobbes’s Sovereign is a deus mortalis because, like that of all sovereigns, its decision is “mortal”, it is based not on “truth” but on “authority”, that is, on the “power” possessed by a “particular authority” or will and is objectified in a “concrete decision” or “command”. Hence, the machinery of the State stands with the scientific hypothesis and the “authority” of the will of the Sovereign, whereas the ratio of the convention of free wills stands with the “truth” (veritas) of the State as the emanation of the legal order, of the Norm. Here is the fatidic dualism of Soul and Form, Spirit and Machine, Freedom (contingency) and Necessity (logico-scientific). Schmitt intuits this antinomic dualism implicit in Hobbesian political and legal theory and genially makes it explicit, as the following extract reveals:

It is striking that one of the most consequential representatives
of this abstract scientific orientation of the seventeenth century [Hobbes]
became so personalistic. This is because as a juristic thinker he
wanted to grasp the reality of societal life just as much as he,
as a philosopher and natural scientist, wanted to grasp the reality
of nature. He did not discover that there is a juristic reality and
life that need not be reality in the sense of the natural sciences.
Mathematical relativism and nominalism also operate concurrently.
Often he seemed to be able to construct the unity of the
state from any arbitrary given point. But juristic thought in those
days had not yet become so overpowered by the natural sciences
that he, in the intensity of his scientific approach, should unsuspectingly
have overlooked the specific reality of legal life inherent
in the legal form. The form that he sought lies in the
concrete decision, one that emanates from a particular authority.
In the independent meaning of the decision, the subject of the
decision has an independent meaning, apart from the question
of content. What matters for the reality of legal life is who decides. (PT, p34)

Hobbes never completely resiles from the “scientific truth” of his axioms, because he identifies “truth” with the very “facticity” of “authority”, so that for him there is no antinomy or apory between the two. For Hobbes, the “truth” is not to be found in the theo-logical emanation of laws but rather in their “mechanistic” facticity. As Schmitt puts it, the machinery of State – the “mortality” of the deus mortalis – is not determined by the divine, and yet Hobbes knew that the “divinity” of the deus mortalis, the underlying scientific Ratio of the machine, had to be founded ultimately on the “mortal” decision! An entirely mechanical State would relegate the “mechanical laws” under which it operates from the realm of “logico-scientific necessity” to that of complete contingency.  The Ratio of the State had therefore to be located not in its “mechanical” make-up but rather in a “free” decision whose “rationality”, however, ends up being no less contingent than the mechanical laws and rationality of the State!

By contrast, and much more consistently, Schmitt ascribes to the auctoritas of the State a real substantive ascendancy over the veritas not only of the legal form and norm but of any “scientific” reality whatsoever. The Schmittian sovereign remains an “in-dividuum”, because the decision is in-divisible and must rest ultimately on one will: it is this Individualitat of the decision on the exception – what Schmitt calls the “personality” of the Sovereign - that precludes it from being absorbed into any “logico-scientific” schema. As we have learned from Nietzsche, this applies both to the legal-moral order and to the logico-mathematical and scientific one!

That constitutive, specific element of a decision is, from the perspective
of the content of the underlying norm, new and alien. Looked at normatively,
the [32] decision emanates from nothingness. The legal force of a decision
is different from the result of substantiation. Ascription is not
achieved with the aid of a norm; it happens the other way around.
A point of ascription first determines what a norm is and what
normative rightness is. (PT, pp31-2)

Recall once more Nietzsche: “Looked at from a moral point of view, the world is false!” But because the world is “ausser-moralisch”, it is morality that is “false”, that contains no “truth”, but can contain only “authority”. It is not morality (the Hobbesian lex qua veritas) that a-scribes the world (lex qua auctoritas), but rather the world that ascribes morality (auctoritas qua lex). And just as the world is “contingent” – emanating from nothingness – so is also the decision (which, as we styled it earlier, is an in-cision in time, an act that is “substantive” and “a-scriptive” by its very nature – an “act of will” is a pleonasm!).

The law gives authority,
said Locke, and he consciously used the word law antithetically
to commissio which means the personal command of the monarch.
But he did not recognize that the law does not designate to whom
it gives authority. It cannot be just anybody who can execute
and realize every desired legal prescription. The legal prescription,
as the norm of decision, only designates how decisions should [33]
be made, not who should decide. In the absence of a pivotal
authority, anybody can refer to the correctness of the content.
But the pivotal authority is not derived from the norm of decision.
Accordingly, the question is that of competence, a question that
cannot be raised by and much less answered from the content
of the legal quality of a maxim. (PT, pp32-3)

C. The Decision and the Political

The point of the “facticity” of the conception of the Political in the negatives Denken is illustrated most tellingly by Lowith in a fascinating homologation of the political philosophy of Schmitt with the existential (though not necessarily “existentialist”!) onto-theo-logy of Heidegger.

El pathos de la decisión en favor de la pura decisividad supo encontrar
una aprobación generalizada en la época de entreguerras. Preparó
el camino para la decisión en favor de la decisividad de Hitler
e hizo posible el viraje político como"revolución del nihilismo". Pero
este pathos no estaba de ningún modo confinado al decisionismo
político, sino que caracterizaba no menos la teología dialéctica y la
filosofía de la existencia decidida. Esta conexión interna entre el decisionismo
político, filosófico y teológico85 será desarrollada en el siguiente
complemento al anterior tratado de 1935 sobre Carl Schmitt,
en relación con Martin Heidegger86 y Friedrich Gogarten. El ser y el
tiempo -un libro en apariencia completamente apolítico, que no hace
más que plantear la pregunta por el ser, aunque en el horizonte
del tiempo- apareció en el mismo año que El concepto de lo político
de Schmitt, y la teología dialéctica alcanzaba su mayor poder de seducción
en ese mismo momento.
Para comprender el trasfondo contemporáneo de los impulsos radicales
de Heidegger resulta útil ponerlos en relación con una expresión
de Rilke. El mundo burgués, escribe Rilke en una carta del
8 de noviembre de 1915, ha olvidado por medio de su fe en el progreso
y en la humanidad las "últimas instancias" de la vida humana;
ha olvidado que este mundo burgués "estaba superado de antemano
por Dios y la muerte". El mismo significado también tiene la
muerte en El ser y el tiempo (§ 63): como la insuperable "instancia
superior de apelación" de nuestro ser y poder. En El ser y el tiempo,
por supuesto, de Dios no se habla; Heidegger había sido por mucho
tiempo teólogo cristiano, como para poder contar, como Rilke,
las "historias del buen Dios". Lo único que es necesario para él es
la pregunta por el ser en cuanto tal y en su totalidad; una pregunta
para la cual la nada y la muerte resultan especialmente reveladoras.
La muerte es la nada ante la cual se manifiesta la radical finitud de
nuestra existencia temporal o, como se encuentra formulado en las
lecciones de Friburgo en torno al año 1920, la "facticidad histórica"
cuyo pathos es la resolución de asumir el ser-ahí [Da-sein] más propio.
La "libertad para la muerte" —con subrayado doble en El ser y el
tiempo (§ 53)—, por medio de la cual el Dasein en cada caso propio y
aislado en sí mismo alcanza su "poder-ser-total" [Ganz-sein-konnen],
se corresponde en el decisionismo político con el sacrificio de
la vida por el Estado total en el caso de emergencia de la guerra. El
principio es en ambos casos el mismo: el regreso radical a algo último,
al nudo que-es [Daß-sein] de la facticidad, es decir, a lo que
queda de la vida cuando se ha barrido con todos los contenidos vitales
tradicionales, con la quididad.

In the quotation above, Lowith homologates the “decision” in Schmitt’s political theory with the “freedom before death” (reminiscent of the “sickness unto death” of Kierkegaardian memory) that Heidegger underlines doubly in his magnum opus, Sein und Zeit. This is what Heidegger achieves for Schmitt: - the de-struction of form, of system, order and unity, of “totality” as the “truth” or necessity of all human concepts - which begins with the only “freedom” possible for Heidegger, that of freedom as contingency, as the possibility of nothingness:  and hence of the decision “auf Nichts gestellt”. It is this pro-jectuality that allows truth to be seen as “dis-closedness”, being as becoming, and therefore freedom as “resolve” (Ent-schlossenheit), as resoluteness - as Decision.

Interesting is the contrast with Hobbes who sees death in a political dimension, rather than an ontological one (like Nietzsche, not the “fact” that we die but “how” we die is important for him) by selecting the “fear” of violent death, and the related “clinging to life”, as the motive for the exit from the state of nature into the “political” one of the “common wealth”. In effect, the only “free-dom” possible for Hobbes is in the state of nature where the human will has free rein. It is the “irrationality” of this state of nature, its bellum civium, that induces the free will to exercise its “rational decision” to opt for the status civilis, for the social contract establishing the common-wealth and the State to protect it.

Schmitt objects here that Hobbes’s polity in effect marks the transition or exit from a mythological state of nature that is un-political by definition (the war of all against all, “anarchy and chaos”) into an equally un-political “state” in which the adherents to the social pact “renounce” politics by alienating their “free-dom” to a wholly mechanical State in exchange for its protection. Politics as conflict now exists in foro externo – between States but not within them, in foro interno. If the State is to be truly super partes, then ultimately no politics is possible within its territory. Freedom therefore means for Hobbes the “free-dom” to decide autonomously over one’s conduct in the state of nature and inevitably clashing with the free-dom of others. Unlike Heidegger’s existential notion of freedom, Hobbes’s is mechanical at one end and rationalistic at the other. As Lowith correctly notes above, Hobbes’s “freedom” contains the Ratio that leads to the inter esse of the “common wealth”.

This is not the “freedom” that Heidegger intends. For Heidegger freedom means “contingency”, the possibility of annihilation, the opposite of logical necessity or teleological destiny. For Hobbes freedom is a relation to other individuals – so that his state of nature contains a “political” notion of freedom, but one that annuls itself because this “free-dom” does not take an institutional form but remains rather one tied to the “anarchy and chaos” of the bellum civium, the civil war of the state of nature. In Heidegger the will becomes the very foundation of all reality, whereas in Hobbes it is the escape from the will – freedom from the will, from the destructiveness of this will – that is the aim of political theory for the sake of the rational preservation of life and the avoidance of death: only to see this will clash aporetically with its axiomatic mechanical self-interest. Heidegger’s will is reconcilable with life and politics because it is essentially ontological; Hobbes’s is not because it is an acquisitive will that is entirely atomic and a-political. Hobbes’s will is so unilateral, so one-sided, that it is not “free” to decide in favour of the preservation of “life” or of the “common weal” – it can only at best opt for self-preservation, to a-void death. This is the ultimate fallacy of “possessive individualism” from Hobbes to Smith and neoclassical theory.

In both Hobbes and Heidegger the will is an ontological entity, not a political one; but it necessarily becomes political at the point of decision, when it becomes organized conflict, coaction and co-ercion. And this is why Schmitt combines the decision with the pre-existence of “friend” and “foe”, the imprescindible moment of the “Political” that is not “acquired” historically from the state of nature or “instituted” contractually, but is rather a “given” of the universal Eris, a quidditas or qualitas occulta, a world from which even the aporetic Hobbesian Ratio of the decision (however “ultimate”) to exit the state of nature and to enter the Ordo of the contractum unionis et subjectionis is removed. Heidegger emphasizes resolve (Entschlossenheit) as the moment of “decision” rather than as the Ratio of politics. But he does not escape the “political romanticism” decried by Schmitt – because his ontology is part of that “neutralization of politics” that Schmitt combats. In this regard, Lowith’s homologation of Schmitt and Heidegger misses the mark. But not entirely; not with regard to the “facticity” of authority, or “power” in the Hobbesian sense, or “sovereignty” in the Schmittian sense. This “facticity” is the quidditas, the qualitas occulta that is the exclusive preserve of the Will as understood by the negatives Denken, that is to say, as the obverse of the Kantian Ding an sich.

The Hobbesian ultima ratio is the fear of one’s death and the preservation of one’s life at the hand of other in-dividuals (cf. Schmitt, Der Leviathan, beginning of ch.3). But that is where politics ends. Schmitt knows that this is far from the reality: – not only does politics not begin with the exit from the state of nature, but that state of nature could never have existed because for an “exit” from it to be at all possible, then that exit must invalidate both the historical existence and the conceptual possibility of the state of nature! In effect, it is impossible to conceive of a state of nature from which there is an escape! Besides, “fear” is not a positive emotion that can found the Political, let alone a “common-wealth”! And the State cannot be a God super partes, however “mortal” Hobbes chooses to label it. Its “mortality” betrays its “partiality”: “authority” would otherwise become a “truth”, which is what Hobbes denies, instead of retaining its “facticity”, which is what Schmitt maintains.

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 intended in the “negative” sense of “fear of death”: 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” and contractualist 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

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