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January 31, 2007
This guest post by John C. Halasz picks up on, and criticizes, the recent explorations between Montesquieu and Madsion in relation to the state of exception. Montesquieu, in his revision of the social contract tradition of Hobbes and Locke, had argued that the chief and proper aim of political life is the security of rights, best achieved through guaranteeing the rule of law.
Well, the primary "function" of politics is not the securement and protection of rights, but the enablement of (the capacity for) action all around, which is to say, the coordination of action and the establishment of the framework for its regulation. ("Rights" are more a legal institution than a moral foundation. In fact, an exclusive preoccupation with "human rights" is curiously de-politicizing, though perhaps with a different intention, and in a different way, than the neo-liberal streamlining of politics in the name of "efficiency").
Hence, the basic problem here is not how to perfect a mechanism of checks and balances that would guarantee rights over against the usurpations of power, however attractive such rhetoric may be, but rather how to render the "actions" and operations of the state responsive to its public, when the state might be subject to conflicting steering imperatives and the public might be conflicted amongst itself, which is to say, both limit excessive state power and balance public interests. This is a matter of the collective generation and distribution of the "power" that underlies both state and public, conserving and enhancing the capacity for "action", for initiative and response in the political society all round and as a whole, under ever changing historical circumstances and conditioning "forces".
Rights, which are always collective institutions, conventional and variable rather than intrinsic in "nature", are, after all, just as much capable of coming into conflict as agents, and no appeal to a "disinterested" juridical procedure can per se guarantee the preservation of a system of political rights, but, to the contrary, aside from threatening a disabling encumberance of action with over-juridification, judicial decisions can be quite simply politically disasterous, (e.g. the Dred Scott case). (To re-enforce this point, just consider the way in which right-libertarians absolutize "property rights", promoting legal doctrines such as "takings", which effectively destroy any collective right for deliberation over the common good).
But that's precisely the point that Schmitt was making, in however repugnant a fashion, with his definition of the sovereign as the one who has the capacity to decide the exception, which up to a point is purely formal, not specifying who or what that "one" is: no legal system is autonmously self-subsistent and self-regulating, but rather all legal systems will contain areas of indeterminacy, unpredictable and depending on historical circumstances and conditions, which must be "supplemented" by political decisions.
At this point it doesn't much matter whether the sovereign is declared rhetorically to be "the people" or an inbred idiot, what matters is that sovereignty is a political reality that lies at once within and outside of a legal-constitutional system, as the constituting power that decides the constituted power of legal and governmental "authority", that conserves the possibility of collective action. Only with this realization does the question of the "nature" of the sovereign, its who and what, come to the fore amidst political conflict and struggles for consensual "legitimation" under shifting historical conditions.
But the further point that Schmitt then makes, in his preoccupation with the predicament of the Weimar Republic, is that, under modern conditions, sovereignty itself becomes increasingly de-stabilized by the increasing interpenetration of national and international "politics", given rise to conditioning "forces" that are outside of any possible sovereign legal-constitutional order.
With that point, it's possible to see the Bushevik "unitary executive" not so much as a tyrannical usurpation of individual or societal rights on the part of a constituted executive power, but rather a a transmission point of "external" conditioning forces, namely the whole "machinery" of corporate globalization and geo-political militarism, whose requirements for streamlined "decisions" attempts to impose itself on "forces" it ultimately does not and can not control, in the process destroying rather than conserving public power, in the relevant sense.
"Tyranny" might, indeed, be an apt description of what has and is happening, but less as a violation of a constituted order of rights by an overweening constituted executive power than as an expression of organized forces of societal reification that have grown up within the constituted order, breeching its constitutive power. And that's a matter for political struggle within the gathering catastrophe, (since Bush's primary political talent is his ability to kick the can down the road), rather than simply a matter of remediation of legal controls.
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John,
I am interested in understanding the development of the modern social contract tradition of natural right that has its roots in Hobbes and Locke; interested in the sense of tracing its revision and significance for the US constitution; and then its critique which I understand came from Hegel in the Philosophy of Right.
I agree with you when you write:
Following Hegel I would argue that the traditional liberal theories originating with Hobbes and Locke are flawed in that they presuppose that the state is an arrangement aimed at safeguarding individual self-interest. This safeguarding is done in civil society.
The state is quite different, as it refers to a mode of relating to a universe of human beings not out of self-interest but out of solidarity, out of the will to live with other human beings in a community. So if one views the state in terms of safeguarding one's interests as Montesquieu and Madison do then, as Hegel argues, one mistakes it for civil society. Locke makes the relational modes of civil society operative in all spheres of public human life; keeping the patriachal family in private life.
I would also argue that human beings have rights as a result of a historical and social struggle, which Hegel calls the struggle for recognition. This argument is articulated in The Phenomenology of Spirit , but its origin lies in the Jena lectures. Abstract right emerges directly from the struggle for recognition.