Against The Law
Politics in the Age of Behemoths
[God] is not dead; he has been incorporated into the destiny of humanity.
Walter Benjamin, Capitalism as Religion
Carl Schmitt was right: discourse about the State is transfigured theology. The sovereign is for all intents and purposes a god (in his ideal view the Catholic one), and the tool by which he sets course – determining what becomes an “exception” – functions like a miracle. Today’s loaves and burning bushes are the financial crime among millions that is prosecuted, the child stripped of citizenship, the journalists held indefinitely without charge. Which is to say, those instances that are not the ordinary course of things. The source of these decisions, however, is no longer found in the person of the sovereign, for there is no such person. No, power has been levelled in the reconstituted Free World! To the extent that is true we must speak of diffusion, and admit the result has been one of obscuration. These are the many labyrinthian rules which hook tethers in our limbs as we try to navigate the world. The pervasive apparatuses of control which no thinking person, any longer, believes are for “our own good”.
Never has a society been so litigated. And this direction was determined by the early state builders themselves. The god of these “Founding Fathers” went unnamed – it is true, against today's religious nuts, that Thomas Jefferson and co. were deists. But in reality Law occupied the hallowed throne. Our cold dictator that sees in all of Earth’s peoples naught but a flicker in a boundless domain (for even the passage of the stars must obey Its rulings). At this altar human agency dies, and indeed becomes incomprehensible: any leader’s intervention appearing, as Schmitt explained, to “emanate from nothingness”.
In this triumph of Law over the contingent (situational) decision, modernity’s scribes and their descendants are, in principle, opposed to the sovereignty of persons. They insist judicial matters can be dealt with objectively – being impersonal, interchangeable, boring. In a word: Kantian. The denial of a Stated godhead seems to liberals as freedom, but the legalistic tendrils have instead spread everywhere, and not one has fled.
In the beginning most men were free, and perhaps if we follow Rousseau all men were. Then, with the emergence of complex societies that proportion shrank, being whittled away with each development in administration. Eventually arriving at the totalitarian State, where one man alone knew freedom. Hitler, Stalin, Hirohito… who were they but the last barbarians, snuffed out with what was left of human power. Thus the new international order was baptised, where all championed Liberty, Equality and Self-determination, yet lacked any semblance of liberty, equality and self-determination.
But surely we, or at very least our representatives, make laws? This is the lie told by the same people who believe artificial intelligence will save humanity, and for similarly insipid reasons. Law today is a discourse between institutions. They, and It, have no interest in the wellbeing of their untouched jump-starts. History belongs to the Behemoths, our job is over.
It is difficult to convey how powerless humans are today, as it would for the congenitally blind to describe the experience of gazing into the midday sun. You may call the following tools: government agencies, corporations, research institutes, trade unions, AI, but it is otherwise. We are lived by powers we pretend to understand (Auden). This is a tale full of irony, but of little cheer.
The story Westerners have inherited is quite different, of course. We are told that the passage of history is the maturation of Freedom, a tale of universal enslavement blossoming into individual liberty for all. Perhaps the most famous proponent of this story in recent years is the “classical liberal” Steven Pinker. Books upon books, a few even smuggled into the history section at my local bookshop, re-telling with a punkish air the half-truths we imbibed with our milk. So it is with those so-called dark intellectuals, masseuses of the gut. Hark!, they exclaim, What do you know? Despite the evidence of your senses, things really are getting better. Violence is down, quality of life up and prosperity is all over. Here, just take a look at this line chart. And why? It is thanks to LIBERAL IDEAS, and those who plucked them from the ether: enlightened politicians (that's Democrat apparatchiks flattered), novelists (writer friends have a new brag) and scientists -- just like Pinker!
What belies this idealism is unwittingly alluded to by Stinker himself, in his repeated expressed sympathy for Thomas Hobbes. To better understand we must confront the tension between liberalism and the modern nation State. To begin: European feudalism, like all traditional societies, possessed many qualities which stymied the growth of liberal capitalism. Mercantilism and trade were present of course, but they were limited to specific zones. Their concerns were always secondary to regional politics, and specialised guilds prevented all types of speculation and scavenging. Culturally there were also barriers, such as the taboo on usury, and the widespread agreement that certain lands should be held in common. The latter of which caused a headache (and possibly head loss) for anyone who sought to sully the land with a fence post.
Locke and the early economists, committed as they were to Empire and not older ideas of commonwealth, saw this state of affairs as intolerable. They agreed the route to imperial growth lay in private property and the extension of debt. They called for enclosure (privatisation) of the commons at home, and the enfolding, and eventual expulsion, of colonial peoples through debt. (This expansion through indebting lasted at least to Jefferson, who was explicit about cleansing the Indian “civilised tribes” through foreclosure.) Thus emerged what are called, and here we might turn to Isaiah Berlin’s terminology, “negative liberties”. Those demands to do away with communal fetters for the sake of the acquisitive individual.
The result was a collapse of what are tellingly called informal bonds. Meaning that for certain ideologues – and The Economist for one has remained consistently shrill – the concerns of family, religious groups and even entire domestic communities were made secondary to those which expanded debt and capital. Procedures which benefited these and the other drivers of liberalism were codified in law, and the imperial fist remained clenched and ready to discipline all those populations struggling to accept the New World, from Peterloo to Boolaroo. In no way can the development of liberalism, capitalism and Law as it has become known be separated from that of Empire.
There are, though, as far as I am able to discern, two laws of history. The first is, as with all things, decay; but it is the second that concerns us. For every human endeavour there is a reaction. And the response to the decimation of informal bonds has been swift, total and devastating. I say this as someone who sympathises with the impetus, at the very least, behind the counterattack, being somewhat of a Polanyian. In the broadest terms we will call it the Left, and go further by identifying two strains: the anti-liberal and trans-liberal. The former rejects liberal capitalism root and branch. It runs the gamut from burly smashers of stocking frames to Romantic poets and Russian nihilists. (Radical were those who sought to give the new a shock.) You will note how these examples are showing their age, in distinct contrast to the trans-liberals who infect even the most obscure and supposedly extremist corners of the Left today. This is the “opposition” which sees its Historical role as not one of trashing liberalism, but working through it, transcending it. These rear-faced vanguardists are a conciliatory lot, given one is not an anarchist, and have adopted the liberal antipathy toward democracy. Indeed, they have determined that the only way to beat the rulers is by playing their game.
Everywhere liberal capitalism seeped, it yanked forth Law and held it as a shield. To meet them – and this circles back to my dispute with Pinker – the trans-liberal Left joined efforts to construct a force capable of confronting capital. The tyranny of poverty and anomie had to be met with tyranny of “our own”, or so the logic ran. Consequently revolutionaries and reformers ignored that just yesterday the police were bludgeoning their comrades, and decided such institutions had their uses after all. It was on such cynical and shortsighted foundations the arms race between State and Capital began.
Lawfare is almost uniquely pernicious in that it allows its drafters to legislate not only for entire nations, but for the unborn. The distrust of people is palpable. One can imagine a different present where the masses were allowed to determine the course of the proto-Behemoths, one where they evolved organically rather than autocratically; but this was not our fate. Instead we face a conflict where each side deploys Law in ways that are increasingly abstract, but ever more intrusive. In a perpetual bid to outflank the other, they lay claim to more ground, more data and greater jurisdiction within the private lives of citizens. This war has brought humanity barrelling into the nuclear-tipped Capitalocene, yet we do not fight.
In some key ways, this resembles the thesis central to the work of the Italian theorist, Giorgio Agamben. Proving tragic irony is not limited to our constructs, his Homo Sacer series charts how what was formerly a source of human agency – political life – has become a means of repression. In brief, the ancient Athenians had two conceptions of life: political life, known as bios, and life as such, zoē. The latter meant existence in its broadest sense, encompassing that of the non-political man, slaves, beasts, weeds, etc. Bios was exclusive to men who had joined a particular class, although the ramifications of their deliberations impacted much more than that. As a result, when “the other” – outsiderness in all its forms – became politicised the result was a politicisation of bare life: of all life. This shift concerns Agamben because with no exit, a sovereign or Law is suddenly able to make claim to every aspect of existence, even those once believed to be extra-political.
Is this not what we witness today? The story we were told about legal rights was that they were a defensive measure against unruly princes, but in fact they are a radical appropriation. In the 21st Century, one is not able to choose one’s relation to a given polity, one is born a political subject and remains such. The Rights of Man: an equality of pulsating meat.
…
In an early work Agamben wrote,
One day humanity will play with law just as children play with disused objects, not in order to restore them to their canonical use but to free them from it for good.
I doubt he remains so optimistic, especially since the pandemic. Law, like Capital and the State, are gods unto themselves. They have their own agency and tarry in logics beyond our comprehension. Having thought about another analogue my mind returns again, not to anything overtly political, but nukes. They too possess the ability to destroy us and everything held dear, yet we are incapable of imagining life without them. And in the same way nuclear weapons do not have to be formally engaged to contaminate the very air we breathe, so Law today rots us, from the inside out.
