The starting point of Hobbes’s construction
of the state is fear of the state of
nature; the goal and terminus is security
of the civil (staatlichen) condition.
In the state of nature, everyone can slay everyone else; “everyone can do this
great feat”. In respect to posing and carrying out this threat all are equal.
As Hegel characterized it, “everyone is weak vis-à-vis everyone else”. To this
extent “democracy” prevails in the state of nature. Everyone knows that
everyone can slay everyone else. Everyone is therefore the foe and the competitor
of everyone else – the well-known bellum
omnium contra omnes. In the “civil”, stately condition all citizens are
secure in their physical existence; there reign peace, security and order. This
is a familiar definition of police.
Modern state and modern police came into being simultaneously and the most
vital institution of the security state is the police. It is astonishing that
Hobbes appropriated as a characteristic of the condition of peace brought about
by the police the formula of Francis Bacon of Verulam by speaking of man
becoming god to man, homo homini deus,
whereas in the state of nature man was wolf to man, homo homini lupus. The terror of the state of nature drives
anguished individuals to come together; their fear rises to an extreme; a spark
of reason (ratio) flashes and
suddenly there stands in front of them a new god.
Who is this god who brings peace and
security to people tormented by anguish, who transforms wolves into citizens
and [p32] through this miracle proves himself to be a god, obviously a “mortal
god”, a deus mortalis, as Hobbes
calls him.
(C. Schmitt, The Leviathan in the State Theory of Thomas Hobbes, pp31-2)
This all-important transition from in-dividual fear to public
safety (salus publica) in the State is Schmitt’s focus in “The Concept of the
Political”. As we know, Hobbes attributes this “transition” to the innate “reason”
that humans possess and that indeed governs
the entire world – the Ratio-Ordo. Yet Hobbes still remains a “decisionist”
because the supreme aspect of the world remains “Power” – the force that rules the
mechanical laws of the physical universe. Later, of course, bourgeois
liberalism from Locke to Constant will seek to replace this Hobbesian “reason”
and “Power” with the “equal exchange of individual endowments”, with “commerce”.
(See our previous essay on Constant and Weber titled “Free-dom and Greed-dom”.)
The basis of Lowith’s and Leo Strauss’s critique of Schmitt’s incomprehension
of the “jusnaturalist” Hobbes is precisely that Schmitt privileges the “empty
formalism” of Hobbes’s apparent decisionism and wholly neglects the role of “reason”
in dictating the “equality” of the “free exchange” and “mutual gain” that
obtain in bourgeois civil society.
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’)
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. Thus, Schmitt’s challenge to transcendental formalism
cannot succeed because his brand of immanentism fails to identify that
“substantive element” that could give it a proper political foundation.
That is why Lowith
is both right to criticize the formalism of
Schmitt’s decision for being “auf Nichts
gestellt”, (for being a “mere
decision”); but at the same time he is wrong because it is this “nothing” that
founds the “facticity” of the “mere
decision”, its substantive content as violence – 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 like Hobbes’s jusnaturalist intent the existence of a
Ratio-Ordo that legally-logically – “necessarily” – through the fear of one’s
death and the preservation of one’s life leads to the social pact and so 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!
The apory in Hobbes,
of course, is that it is the very Ratio-Ordo of the Galilean-Newtonian “laws of
mechanics” that leads – paradoxically – to the “dis-order” of the state of
nature indicated by Lowith above – and then in the very next breath is
supposedly “repaired” or remedied by the Ratio-Ordo of the individual’s need to
a-void his own death and pre-serve his own life. Here Hobbes works with two
notions of Ratio-Ordo, one physical-scientific and the other
spiritual-idealistic, that clearly oppose each other aporetically and are not
reconducible to a common rationalistic framework! In any case, the “decision”
to avoid death and preserve life by agreeing
to the social pact is an “act of will” that can never be “scientifically
necessary” because of its very voluntaristic
nature!
Contra Schmitt, instead, as
we shall examine more fully below, 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,
of pure will -, 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.
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? The same, as we saw in
Part A, can be said of the concepts of “equilibrium” and “market” in bourgeois
economic theory.
[A
similar argument to Lowith’s and Leo Strauss’s, 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), - almost a neo-Kantian “category” like those of
“beautiful and ugly”, “just and unjust” - 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 Agapito’s critique of
Schmitt is that it posits 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
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
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.)]
Yet the paramount
importance of “the exception” in Schmitt is to be found precisely here. The
State, or the sovereign, is “he who decides on the exception”. This “de-cision”
is – as I now style it – an incision in being, and the foundation of time: - time
understood not “spatially” or chrono-logically,
as a sequence of “measurable inter-vals”, but rather politically, as the possibility of decision, as the abyss be-tween being
and nothingness. The decision 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” or “contractual” manner, still less in
a neo-Kantian formal-ethical 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 (commission) which cannot be founded on
“legality” but on “legitimacy” or “competence”.
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. It is this specific aspect of Hobbesian jusnaturalist
political theory that will form later the core of bourgeois liberalism once the
British and American bourgeoisies felt secure enough to proclaim the precedence
of their “natural rights” over the authoritarian decisionism that still
pervades Hobbes’s theory.
The law gives authority,
said Locke, and he consciously used the
word law antithetically
to which means the personal command (commissio)
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)
The Lockean
jusnaturalist rationalization of bourgeois violence seeks to hide the moment of
the “decision” and highlights instead the “legitimacy” of the legal order, its
intrinsic “truth” analogous with the “legality” of the worldview of
Galilean-Newtonian mechanics. Even for Hobbes, the infinitely small points
(individuals) can still albeit
aporetically form a line (the State, or as in Rousseau “the general will”, or
as in Locke “public opinion”, or in the American Federalists “the will of the
people”). For Schmitt instead, more consistently, the line remains a point: the
State remains an individual, a partisan.
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. (This point is enucleated further below.)
Hobbes’s Leviathan
is a deus mortalis because, like a
god, it is the incarnation of the Ratio of the will both in its
physical-mechanical aspect as the scientific hypothesis that necessitates the
Leviathan-State as well as in its ideal-spiritual aspect leading to the
political convention of the social
contract that establishes the “common-wealth”. On the other hand, however,
Hobbes’s Sovereign is a deus mortalis
because, like that of all sovereigns, its decision is “mortal” and therefore
“arbitrary” – not “necessary” like the “laws of nature” but “contingent” and
“voluntary” like the “act of will”! The rule of the Sovereign 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 or “rule” of the
State stands with the scientific hypothesis of the “authority”, the
overwhelming mechanical Power or auctoritas
of the Sover-reign, whereas by the
same token the “authority” or reign of the Sovereign understood as “legitimacy”
rests on the ratio of the convention
of free wills founded upon the “truth and legality” (veritas) of the State as the emanation of the legal order, of the
Norm, which in turn is founded on the “mechanical laws” of physics, which is
how Hobbes conceived atomistic in-dividuals in the state of nature.
The
circulus vitiosus of this reasoning
is as perspicuous as it is insuperable: the necessity
of Hobbesian Galilean-Newtonian mechanics requires
the inter-vention of the will, of the decision, to be activated. This applies both to the Political as well as the
Scientific whose “truth”, as we have seen, is also dependent on the result of
human action (this is the ultimate “truth” of Heisenberg’s Uncertainty
Principle). And this voluntary act-ivation
requires for its implementation the involuntary
necessary operation of the laws of mechanics!
What Hobbes could
not know is that those sacrosanct “laws of nature” are in fact not “laws” at
all but rather ex post facto arbitrary
and conventional descriptions of the world that justify the scientific “will to
truth” as a specific and partial interpretation-and-action upon life and the world. 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, without being able, however, to confute as did Nietzsche the
“legality” of the Galilean-Newtonian mechanics adopted by Hobbes:
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)
What Schmitt
attributes to the “overpowering of juristic thought by the natural sciences” we
should ascribe instead to the emergence of a self-assured and empowered
bourgeoisie so confident in the “legality and legitimacy” of its own form of
politico-economic violence as to present its political “will to power” as a scientific
“will to truth”: - the former in the guise of “natural right” and the latter in
the guise of “the laws of nature”. 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
“mortal” aspect 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 not on the
“truth” of its legal-scienific order
but on the “authority” of its spontaneous,
“mortal” decision! Auctoritas, non
veritas facit legem. An entirely mechanical State would relegate the
“mechanical laws” under which it operates from the realm of “logico-scientific
necessity” to that of completely voluntary 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” – the ultima ratio of
individuals to avoid violent death - ends up being no less contingent and unfounded than the mechanical laws and
rationality of the State!
In Schmitt’s correct
reading of Hobbes,
[t]he Sovereign is not the Defensor Pacis of [33] a peace traceable
to God; he is the creator of none other than an earthly peace. He is a Creator Pacis. The justification
provided on the contrary proceeds the other way around than in the processes of
“divine” right. Because state power is supreme, it possesses divine character.
But its omnipotence is not at all divinely derived: It is a product of human
work and comes about because of a “covenant” entered into by man. (C. Schmitt, The Leviathan, pp32-3.)
But it is precisely
this voluntary-political Hobbesian
jusnaturalist “covenant” that Schmitt rejects and refutes outright! True, the
State does not “ascertain” the law; it does not “find” it; it “creates” it
terrestrially: - but certainly not as the result of some material scientific
Ratio; rather, it does so wholly contingently and ir-rationally: – out of nothing.
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”
(extra-moral), it is morality that is “false”, that contains no “truth”, and 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 being, an act that is
“substantive” and “a-scriptive” by its very nature – an “act of will” is a
pleonasm!). Seen from the perspective of
the negatives Denken, from Schopenhauer
onwards (with Hobbes as its honorary precursor), the State is merely the
enforcer of the salus publica; it is
not the pro-duct of a “comunitas” or even of an association, but rather it is
the pre-condition for the Political as conflict, not as contract or convention
or social pact but as police! That is
why for Schmitt, unlike Hobbes, “the concept of the State presupposes that of
the political” (the famous opening sentence of The Concept of the Political) – but not vice versa as it did for
Hobbes! For Schmitt the Political does not presuppose the State because the
latter is an expression of the former and not the other way around. The
Political is the fundamental reality and the State merely one of its historical
forms. For Schmitt the bellum omnium contra
omnes is im-possible or at most an extreme
limit case of conflict because it obliterates the Political as a
fundamental human reality, because the possibility of this bellum civium universalium would entail the impossibility of human
society, its annihilation. And yet, as we shall see below, it is precisely the
“possibility” of human society – its very “facticity” – that Schmitt’s
Heideggerian onto-logical approach (its transcendental formalism) fails to
account for!
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