On the apparent paradox of legal and lawless state authority and violence: Notes towards a political metaphysics

There is a myth according to which governance can be either statutory or prudent practical judgment, sometimes associated philosophically with hermeneutical paradigms of thought (like Aristotle's) as opposed to mathematical and foundationalist ones (like Descartes). These two paradigms philosophically can well be found under one roof, as in Kant, particularly considering the difference between the 2nd and 3rd critique, the Critique of Practical Reason and the Critique of Judgment, given the possibility that judgment also has ethical and political as well aesthetic and (indeed, at least in Kant) scientific functions.

The modern state includes both. This can be associated with different powers established in some modern governmental constitutions, but the fact is that most governance by judgment is not judicial. It does not turn on rational arguments that must be made public. Instead, it is administrative authorities, in the vast public and (in liberal capitalist countries like America) private bureaucracies that police the population and concern themselves with the good of individuals.

Medical professionals generally make use only of highly trained and skilled judgment, with reference not to a body of rules so much as of professional knowledge. Of course, there are rules they must follow also. These go well enough together that the fact that there are two different kinds of knowing here, and of consequence action applying the knowledge (based on rules or judgment) to what is done, is rarely commented on, certainly not seen as an obstacle.

Bureaucratic functionaries in general follow rules, that may be binding on the people they govern as well as their own governmental institution, though if and when this is the case, it is the still the apparatus of functionaries who interpret these rules.

Today, at institutions of medical or other social services, the clients are now ordered to sign documents they are not given to read. They even are told to sign documents saying that they have read them. But they are not given them. You are now handed an electronic signature pad. You sign it agreeing to the terms of an agreement that are not really your business.

Another example is the police. This was true in the concentration camps in Europe, and is true everywhere: The police are supposed to not only enforce the laws, but abide by them. They also do lots of things based only on their own judgment. Many people have died or been greatly injured because of this.

I used to wonder, how did law function in the Nazi camps? A guard might brutally beat a prisoner, and this was allowed by the laws yet not dictated by them. It was a possibility of the apparatus. At the same time, it was a rule-governed bureaucracy. In one famous account, that of the philosopher Hannah Arendt, the man who was most responsible for the detail work of carrying out the killing of the Jews, Adolf Eichmann, was a man devoted to serving the ruling authority, which he considered supreme in morals, as governments generally are taken to be. Arendt claimed that Eichmann did not think. Something about thinking is absent in this rule-following. And it had partly to do with judgment. (Arendt reads Kant's Critique of Judgment as a political philosophy.)

Carl Schmitt famously argued that a sovereign political authority always has the ability to abrogate or declare an exception to its own rules, and that is what makes it sovereign. So, authority in the modern world is both rule-based and judgment-based. The cop who beats you to death may think he is enforcing a just rule, or that he is exercising his personal judgment as someone who is also authorized to do so.

The result may be the same.

Every government "by laws" is also a government "by men." The Aristotelians and Cartesians only seem to be articulating different positions. A society or institution run by people who never feel authorized to exercise their own judgment would probably be one with little legitimacy among the populace, or at least that part of it that exercises domination over the other part, the former group today being quite large. But if they only ruled by personal authority, the institution would have to be said to have dissolved. Where there are norms, there are exceptions. Indeed, most talk about "the rules" engaged in by professional managers and enforcers is designed mainly to legitimate their own domination of others in their own eyes. The society of "the" (or a given set of) "rules" is the great ideological utopia of the managerial middle class. It functions better practically among the members of a bureaucracy than in their interface with the public.

Where it can be enforced, law, and more generally, "form," will always come up against a "life" that from form's standpoint can only seem a chaos. The reality of the human world formed through language is one in which there is always a gap or slippage, between life and form. That is how there is liberty; otherwise, there would only be order, perhaps even states claiming to have discovered the true natural order of things, which would be pure oppression. There is freedom because worlds are always imperfectly formed, and that is partly because there is life and death. The worlds formed through language are exceeded at both ends, as we are born before them and die out of them. Though at death most of us are rather more in the formed world of a language than we were at birth, then lacking it completely. The good is never pure form ruling in abstraction; it is always some mapping of a territory, which is a space of chaos. Divine powers open worlds, and so there is (the famous trilogy in Jewish thought), creation, revelation, and redemption. They do not make the worlds eternal: what is opened can be closed. The principle of judgment based on perception and maybe some broad principles guiding it but not a set of statutes, is this better than a system of rules or systematized set of forms (as in every mathematics)? It could mean anarchy, but anarchy is limited by bureaucracy. Oppression is a matter of states and empires. Without them, one could oppose only violence. But states and empires manage to do both. They are not immortal, either.

One thing that depends on the chaos/form boundary is art. Indeed, what Alain Badiou calls ‘truth procedures’, or the coming into being or presence of worlds, possibilities, and truths, which includes also science, politics, and love, also depend on the ability to inhabit and rework this boundary. The practice of science as inquiry well knows this, but the knowledge that techno-bureaucratic representations apply does not; indeed, the latter is nothing but an archive containing presumably true statements, though they may have been constructed and validated in scientific research in an earlier moment. In the end, all that bureaucracy is is an institution that applies, and so enforces, a set of statements and authorizes their utterance as true because authorized by the institution and the professionals with titles of office within it. Professionals in the professionalocracy decide on or transmit those statements that may be said on its territory, and this sayability is the sole truth, outside the enabling sciences, which have no truths, only theories that have not been disconfirmed. It follows that lack is always recognized as a failure that must be avoided at all costs, and every form of management will tend to project outside the lack that ultimately is the scientist’s, the artist’s, the lover’s (imagine love without lack!), or the political activist’s very source of potentiality, which is originally positive. Regimes of management of lack worry about the potentialities of those ruled by them, which are presumed to be only negative. The dominant psychotherapies today, as well as all medicine, suppose that bodies either function and work well, or they fail, break down, and show themselves lacking (or in crisis or emergency), such that the purpose of all management and self-management efforts is to limit or control what ultimately are liabilities to capital.

If today we are ‘postmodern’, it is in recognition of this, whereas both antiquity and modernity proper were epochs in which worlds were understood to be well-ordered and given. Marxism implicitly recognizes this in offering the laboring body/mind rather than the investing one (more purely mental, because abstract, like money) as the paradigm of personality, since labor ultimately derives its possibility and necessity from transforming nature or given things, and in this, it must operate within the chaos/form boundary, rather than adopting the standpoint of an absolute form that the chaos of lived experience is dangerously subject or liable to. The consumer is actually in the same position as the worker once he/she is outside the act of exchange. One reads, looks at, listens to, attends a performance, etc., of works that work by working out from a relative chaos or absence (which are identical from the standpoint of form). Capital faces lack in the form of risk and liability, the possibility of loss of income, assets, and the goods buyable from them, as well as the business one is engaged in itself. But money doesn’t bleed the way bodies do. Capital dreams itself immortal in a purely virtual world, which is now realized with great force in the fact that money is traded as information. But neither the world and its resources not living bodies are immortal. The problems that can befall them cannot just be treated as negative externalities, which is how the concept of environment operates in economics.

One could speak of a state of things which is ‘natural’, and natural orders have that character. This was a way of being in the world that was determined by the principle of thought as representation. There is first what is, and then thought, which recognizes it and says how it is, and how it is in thought is how it is, and already was, in Being. But that view is false to the becoming and emergence of Being as thinkable.

Our way of being in language, and so in worlds, is determined by the misfit of all form, ultimately, to life. The sign of this boundary being in effect is affect generally, and aesthetic experience, which evokes it, in particular. Art is possible because affects exist on the boundary between the real and artifice. Its logic is that of making and coming into being. In the epoch in which the truth of this is most recognizable, recognizable too is the false and unjust, because oppressive, character of every attempt, or demand, to represent how things are. Thus, in the epoch of absolute government, the possibility of its absence becomes visible for the first time. If this possibility were realized, the world (the ‘larger’ one that we all inhabit and that all figurations of a world are interpretations of and relative to) would be a much happier place for most people in it.