Quaeres siletes juristitae
in munere vestro?
An article written in September mirrored a certain “with the back to the wall” feeling of the author being confronted with a degree of destructive stupidity and nihilistic nurtured collective death wish in Western states and societies which should be alarming for a rational mind and maybe unimaginable for thinkers like Von Hayek, Von Mises and all scholars influenced by the Austrian School of economics. Russell Kirk would have in his calm way maybe thought about; William S. Schlamm and Carl Schmitt would have understood. Alright, enough name dropping… The sense and meaning of the article (with some inserts marked in bold) coming after the US presidential elections of 11/8 is definitely more optimistic.
Sovereign could be the citizen who dares to recognize the tumultum and act on it, especially if we support the concept of spontaneous order and a state of liberty for the citizens, we have to ask which constitutional framework supports this order, and which kind of system endangers or destroys it.
Feeling comfortable in the relative security and orderliness of the South African constitutional system, we may dare with shivering fascination to view at the increasing tumultuous, chaotic, arbitrary and emergency state of public order in some European countries, especially in Germany, and the US.
Students of public law will have easily discovered the paraphrase on Carl Schmitt’s famous statement that sovereign is who is able to declare the state of emergency. Then came the time one could say that sovereign is those who possess the atomic bomb.
Times change. What is valid in a time in which the real existing disorder lacks any resemblance to order?
What is the state of the state today? As Carl Schmitt wrote in 1963: “The epoch of stateliness is at its end. We shall not lose a word about it”. The alternative is between a state disintegrating and disappearing behind a system of uncontrollable and sometimes barely visible informal powers – who maintain to be powerless or even not to exist at all – or a state integrating in a productive way into a new system of the international order. At present, we may notice disintegration rather than building up of an effective and just new order.
With doing and speaking, it is like with the relation between matter and energy. The more of the one, the less of the other. We shall recognize that the public space is filled with hyperbolic information – noise consisting only in a small part of real information, but that consists mostly of propaganda, disinformation, infotainment and other distractions of the thinking mind. Excessive media noise substitutes real substance.
Order and power, but also power and disorder are connected. Power is the ability of one, a pair, a group, or an organization to motivate others (also a single one, a pair, a group, or an organization) to act or refrain from acting without having to convince. Power is the ability to command effectively; to get the command executed. That means for the powerful it is not necessary to argue, to debate, to reason or making any intellectual activity. As Friedrich Nietzsche recognised that it pays dearly to be in power. Power makes stupid.
In the US, the outgoing President ruled with “executive orders”, far beyond the past constitutional practice, interfering with legislation and excessively cashing in on “the premium of the legal holding of power”, as Carl Schmitt famously formulated. After 11/8, Congress voted on a bill outlawing any presidential activity trying to oblige the US by decree. The President-Elect seems to be ready to liquidate this amassed executive orders by executive order – the right way to do.
In the EU, the top institutions are disconnected from any proper constitutional institutions and decision making. Arbitrary rule has taken over. Furthermore, the state is not longer able to protect its citizens from acts of war; you may call it terror acts, but, in fact, some countries and militant organizations are waging war against European countries.
Countries like Germany, and most Western and South European states, cannot, or will not, stop an uncontrollable influx of uprooted masses from wherever and being whatever, but definitely not being ready to accept law and order and the rules of the host countries. Just to the opposite: law abiding citizens from abroad applying for a Schengen visa are subject to bureaucratic chicanery.
The state is weak on crime and criminal organisations, but strict to the normal citizen. Public administration is in shambles; it is just a place to employ a lot of partisans and has to feed potential voters of the ruling parties at the expense of the taxpayer.
As Peter F. Drucker said in 1969, the state is only capable of devaluating or destroying its own currency and waging war – now, more and more, against its own citizens. The mentality, intelligence, knowledge, and mental state of mind of the ‘real existing ruling class’ is more and more questionable. Party pluralism does not exist, as all established parties automatically form a bloc against the real opposition. Methods of fighting opposition include the use of thugs, bullies, criminal rackets (for example in Germany the “Antifascists” use brutal force and threat against a patriotic party, with no one in the establishment protesting), and the rigging and manipulating of elections (for example, with the 2nd round of the presidential elections in Austria which led to its annulment by the Austrian Constitutional Court). The repetition of the elections had been, under most dubious legal circumstances, postponed for two months. Due to a defective glue on envelopes of the post vote – no joke – the repetition was postponed, again, for two months, and with a two thirds majority some adoptions to the voters roll done so that technically it is no longer a repetition, but a new election sui generis. This was all done quite shamelessly. As a citizen you do not have the impression that this kind of establishment even consciously violates the rule of law, they just do not even know what it is. Pragmatically, they turn their daily whims into principles and have good feelings and vibrations.
To this we can add the existence of one financial-media-political complex – an analogy to the “military-industrial complex”, distinguished by Dwight D. Eisenhower – destroying the proper constitutional order.
The age of constitutional and political illusions is over. The time of endless discussion for the purpose of itself is over. The time of propagating a kind of “dominant free public discourse” as a tool of decision making and of avoiding fundamental decisions by putting everything below the rug or papering over broken wall is over.
For atheists, historical materialists, and positivist scientists, every political metaphysics was finished as theology and metaphysics had been finished as sciences. Idealism of any kind is totally and categorically negated. But this joyful negation is nevertheless and surprisingly a creative joy. It is capable of producing the negated out of nothing, and creating it in a dialectic way. Out of nothing, a word is created. And we do not even need a God for that. This is quite practical.
To create a parallel universe, self-maintenance, self-confirmation, self-empowerment and one self-composing attitude is sufficient to let appear new worlds which compose themselves and the conditions of their own possibilities, at least as laboratory conditions. It is social engineering executed by the inhabitants of a self-constructed parallel universe who impose the imagined rules of that universe on the real universe. So sad that these imagined rules do not even work under laboratory conditions. But we or they do not mind, as objective thinking is, of course, a social construct and negative results are caused by sabotage.
The more political power is concentrated in one spot and in one person, the more the access to this spot and this person becomes the most important political, organisational and constitutional challenge.
This is the result of a constitutional order changing into a day-to-day arbitrarily rule. Under one functioning constitutional order, power is distributed clearly and the citizen knows whom to approach, his councillor, his MP, or his party, a court or institutions supporting constitutional democracy.
In the 1920s, the Governor of Louisiana, Huey Long, was asked if America will ever experience fascism. “Yes, of course” he said, “but we will call it anti-fascism”.
What we can see today is the return of the Fuehrerstaat, a totalitarian system in the dresses of liberality, tolerance, multiculturalism, and other garbs provided by cultural Marxism. This “Fuehrer”-system appeared and appears in many different forms and political colours. Woshd, as Stalin was called, also means “leader”.
The most dangerous form appears as soft, open minded, open to the world, and through and through tolerant. But in maintaining this it is evident that this system is beyond good and evil, beyond space and order – in one word, totally displaced in form, norm, and ethics.
A system in which leaders – although the formal constitution still exists but is no longer really ‘in force’ – exercise vast powers, of which some possess at least a legal cover: some exercised in blatant violation of their constitutions and law, and some self-endowed by the leaders to themselves. Secret orders and secret rules prevail more and more.
Angela Merkel and Barack Obama are just the most crass examples. Even in tiny, happy Austria, we have a narrow gauge example with the present Federal Chancellor (Prime Minister) who was appointed by some party grandees and put into his new position under total disregard of law and rules.
The position of power of such leaders includes a horrendous claim to be all-powerful but also all-knowing. The first was and is real; the second was and is a fiction.
This system, of course, most severely compromises the effective flow of information according to cybernetic rules, and results in a very high form of disorder which finally consumes the system and makes it break down, unfortunately with most of the productive parts of the state and society going under with it.
The leader finally turns out to be an arbitrary ruler detached from the traditional constitutional order. He is a full but also a pseudo-sovereign. His (or her) orders are sometimes effectively executed but in more and more cases in a chaotic way, increasing the degree of disorder. A compromise between this state of leadership and traditional institutions is not possible: firstly, out of principle as the leader has no scruples – otherwise he would not be that kind of leader – and, secondly, as the essence of both systems are incompatible.
That is the key to the arcanum tyrannicis of that system which on the other side acts in public without any shame. The empowerment starts with a formally correct act by a constitutional institution and ends with self-empowerment and rule by “order of the leader” as a self-executing, immediately to be realized act of supreme power and will of the leader subject to no control or limit – except maybe the whispering in the ear of the leader by underlings, sycophants and those brown-nosing (those being the only ones who still can tolerate with their minds and questionable character the atmosphere in the bunker). Oh, sorry, I mean the court of the leader.
After immense destruction, these systems end with the total breakdown of the subjugated state and society – as we may see now in Zimbabwe or Venezuela or Greece – in the past by silent liquidation after the leader has died, as in Stalin’s case or in a Berlin bunker. What will we see, for example, in Germany in the future?
The constitutional state of emergency is overturned into a perpetual system of factual exception based on a self-constructed emergency. A mechanized legislator, artificial emergencies, clandestine operations under false flags in the past called by the masters of that, the Soviet secret service maskirowka, subversive war and the camouflage and deceit on the questions: “who is who?”, “who is the real foe?” “who fights whom in reality?” and “whose interests are served?” are the basic elements of running this system.
The elements of this system are that its managers put themselves beyond all rules, making the real streams of power and decisions unrecognizable, change rules ad libidum as they see fit and never feel bound by past decisions, work on a lot of levers and within a lot of different spheres, politically, culturally, economically, constantly fluctuate within different legal systems, between, for example, international law, supranational law, constitutional law and accept only the norm fitting to the present whim of the managing leaders, swing and shuttle between various different entities be that international organizations, supranational organizations, transnational corporations, NGOs, GONGOs, states and any other organizations and systems of organized interests. Intentionally they cannot be grasped. It is the opposite of a real order aiming at and having a real, meaningful ethical and normative substance.
No political system can only, equipped with the naked technique of keeping power, survive just one generation. To the realm of politics belongs the idea that there is no politics without authority and no authority without the characteristic spirit and attitudes of a culture, a firm conviction of what is right and wrong beyond all pragmatic and day to day considerations.
The challenge arises if we can go back from this factual system of exception into the state of law and order. Maybe not as the terms of ‘state’ and ‘law’ are basically questioned. If we like to stop this machinery we have to recognize the basic fiction and have to establish again a substantial connection between force and law and between life and norm.
- Within the field of dialectic tensions in our culture we see two opposing forces, one which establishes and coins order and the other deactivating and decomposing it. The present system of exception is the place of most intense friction and it is the time to switch off the machinery which only leads into a worldwide civil war.
- The new world order propagated by the neoconservatives failed as no empire can be built devoid of any constructive, fundamental idea and concept being an ethical vacuum with a ‘nothing’ in its centre as it lacks the necessary basic norm.
- The (since a long time on-going, originally well intended) legalization of power and politics just poisoned law, it did not lead to a proper objectivity in politics but to a political law with emotional subjectivity ingrained due to an age in which politics maintain that it is about ‘feeling’ and ‘caring’.
- We have to recognize an anomic (nomos free) space without law and order but maintaining and reproducing itself. It is a nihilistic stability disguised as a constitutional order and maybe what a black hole in space is. Something beyond the normal laws of the universe goes on there, we do not know what but it can influence and in extremity swallow us up.
We live in a tumultuous time and state, lawless, borderless, and without order.
The only weapon against – if we look at Roman history and constitution – seems to be the iustitium, the short term suspension of law, accomplishing pure factual acts which are neither normal acts of law nor part of the legal system, but aim at liquidating the system of exception and reestablishing the proper constitution and the rule of law. It is a realm free of law existing with one and only purpose, to recreate law and order. Therefore, this realm’s existence is indispensable and of strategic significance for the realm of law and order. Or a most energetic ‘daredevil’ man supported by citizens who dare to say: ‘enough is enough’ as we have seen on 11/8. Whether that possibility is also realistic, for example in Germany, I may doubt.
In the absence of, or perhaps, the enforced silence of proper constitutional institutions, it is the citizen who protects the law and saves the constitution from the worst abuse by a nihilistic system if and when reestablishing order in the moment of the greatest danger, acting in a super legal way as a supreme judge. A great alternative is demanding attention which does not tolerate any mediation. No medium exists between the state of law and order and the system of factual, nihilist exception.
Sovereign shall be the Citizen who dares to declare the ‘iustitium’ and execute it.
Carl Schmitt. Der Zugang zum Machthaber, ein zentrales verfassungsrechtliches (Problem/The access to the holder of power, a central constitutional challenge). Duncker & Humblot. Berlin 1947.
Carl Schmitt. Politische Theologie II (Political Theology Part 2). 3rd edition. Duncker & Humblot. Berlin 1990.
Carl Schmitt. Politische Theologie (Political Theology). 6th edition. Duncker & Humblot. Berlin 1993.
Giorgio Agamben. Ausnahmezustand (State of Emergency). Edition Suhrkamp. Frankfurt 2004.
Hans Strotzka, Macht – Ein psychoanalytischer (Essay/Power – a psychoanalytical essay). Paul Szolnay Verlag Wien-Hamburg 1985.
Featured image: Olivier Douliery/dpa