This talk was presented at the 2009 Telos Conference.
A conflation of legality and legitimacy, brilliantly explored by Carl Schmitt, is the first of three essential confusions I term “the metonymic abuses of modernity.” In a nutshell, I argue that, when it comes to the modern political order, one of its privileged parts always stands for the whole: bourgeois legality metonymically signifies legitimacy in general, constitutional law and the Rechtsstaat constitution denote the constitutional regime as such, and the state appears as the incarnation of the political. The rampant abuses of metonymy and synechdoche in modern political thought polemically raise a particular kind of legitimacy, a specific type of the constitution, and one of the loci of the political to the status and the dignity of the genus, in a way that de-legitimizes their rivals. Furthermore, in aligning the three metonymic abuses of modernity, I reconstruct the multi-layered edifice of contemporary politics and, at the same time, show how Schmitt chisels away its fixed and ossified building blocks. If legality, which usurps the place of legitimacy, is the most superficial, depersonalized, “dead” stratum, then the political (metonymized by a centralized state) is the most profound and animating source, defaced by everything that is predicated upon it. Finally, the metonymy of the constitution and constitutional law is the intermediate step between the state that does not merely have but is its constitution and the legitimacy assumed in keeping with the existing constitutional order.
Although legality may be justifiably understood as the lifeless and most depersonalized crust of the modern political edifice, Schmitt reminds us that the original anchoring of all legitimacy in legality served a highly specific and lively polemical intention: “‘Legality’ . . . has the meaning and purpose of making superfluous and negating [überflüssig zu machen und zu verneinen] the legitimacy of either the monarch or the people’s plebiscitarian will.”[1] A simple invocation of the term’s historically situated and polemical origin dusts away the veneer of neutrality and universality that it has strategically adopted in the fight against the competing models of legitimacy and further augmented in the aftermath of its victory in this struggle. It points to the still smoldering cinders of a conflict—and, hence, of a political phenomenon—that has been naturalized not without the help of that victorious historiography which Benjamin so vividly depicts in his “Theses on the Philosophy of History.”
This quick recourse to history should not give one the impression that the hegemony of legality is totally assured and univocal, or that historicization is a panacea against the metonymic abuses of modernity. If “the dominant concept of legitimacy today is in fact democratic” legality [2], then those regimes that do not follow this trend are proclaimed to be the illegal and illegitimate rogue states. But non-democratic political leaders of countries such as Russia and Zimbabwe grasp and, even, subscribe to the rules of the game as well as, if not better than, anyone else. They stage farcical elections coupled with the intimidation and suppression of their political opponents by means of brute force, consistently acting “in the name of the law,” for nowadays not even the most autocratic head of state will admit to governing on the basis of his (most often, his) personal voluntas. Putin-Medvedev, Bush, and Mugabe can equally appeal to the legality of the process that got them “elected” and even disavow various forms of non-democratic legitimacy. They can declare their domestic opponents illegal to the point of “excluding them from the democratic homogeneity of the people,”[3] metonymically identifying the dubious majority they command not with their party, but with the state itself. With the main oppositional figures, including Kasparov and Kas’yanov, legally barred from participating in the most recent Russian presidential elections (and, in the case of Kasparov, put in jail), the Russian state officials seem to have taken a page from Schmitt’s critique of the purely legislative state, in which the majority can “treat partisan opponents like common criminals, who are then perhaps reduced to kicking their boots against the locked door.”[4] Similarly, last year, the political crisis in Zimbabwe saw Mugabe unwilling to cancel the second round of the a priori rigged elections after his sole opponent, Tsvingarai, had withdrawn from the race.
The subsequent emphasis placed on “the rule of law” as the centerpiece of legality is misguided and absurd if one takes it literally. Time and again, Schmitt points out that “laws do not rule. . . . Whoever exercises power and government acts ‘on the basis of law’ or ‘in the name of the law’ [ ‘auf Grund eines Gesetzes’ oder ‘in Namen des Gesetzes’].”[5] A naïve belief in the fact that the laws rule is tantamount to other instances of not taking figuratively, as a trope or as a metonymy, the expressions “the Crown rules” or “the Bench decides.” Reifying machinations notwithstanding, the law does not have any inherent capacity for self-interpretation, just as the bench, on which a judge sits, lacks the ability to proliferate judgments out of its wooden body. To thematize the metonymic abuses of modernity is to disenchant the rational, wholly enlightened disenchantment that, as Adorno and Horkheimer would corroborate, practices a magic of its own. It is to negate the negation of the “iron cage” where absolute calculability and dispassionate rationality precipitate the world of Kafka’s The Process that mangles, overdetermines, and conceals the threads of actions (the effects) pointing back to subjective intentions. In this vein, Schmitt soberly notes in Constitutional Theory that “the ‘rule of law’ means nothing more than the rule of the offices entrusted with legislation”[6] and, thereby, sheds light on the rhetorical dissemination of authority in its very products. In de-mythologizing the claim that decisions are taken “in the name of the law,” what he offers us is a palliative against the fetishism of the law that subordinates all claims of legitimacy to legality.
Now, the rule of law is precisely what Obama has promised to rehabilitate after years of its blatant disregard by the Bush administration. Yet, according to the Schmittian logic, the only “change” one might expect will take place in the mechanisms of legitimation (the emphasis on legality versus security) but not in the source of legitimacy itself. Obama’s own legal background, the makeup of his political team, and even some aspects of his own rhetoric are impediments on the path of allotting legitimacy to the plebiscitarian will, regardless of the appearance of consultations with people at the grass-root level (along the lines of “communicate your ideas directly to President”). In the name of the rule of law, legislative offices will continue to rule.
Taking a closer look at the expression “in the name of the law,” it would be instructive to recall the hypotheses Schmitt has put forth on the subject of the name and naming in The Nomos of the Earth and related writings. On the one hand, in names and name-giving, he detects “the tendency to visibility, publicity, and ceremony,” that is to say, an aspiration toward phenomenality that would no longer keep power “invisible, anonymous, and secret.”[7] In spite of, or thanks to, its etymological connection to nomos, the name is a tendency to the destruction of politics that does not subsist without a modicum of invisibility and secrecy, the great arcanum, to which Schmitt appeals in his earlier writings. On the other hand, this tendency is all but stopped in its tracks, given that the power to name has disappeared and it is no longer obvious what a name is. A complete visibility and publicity, in a word, phenomenality is imaginable only in the impossible situation where the name does not verge on a de-substantialized nominalism but directly expresses the essence of the thing it names. That is why, for Schmitt, politics will straddle the extremes of the visible and the invisible, the public and the intensely private, the open and the withdrawn, without dissolving in the pure presence of the former or the pure absence of the latter. Those who act “in the name of the law” skillfully exploit both extremes when they conceal personal acts of interpretation and decisions beneath the demand for a thoroughgoing openness of the legalistic procedure. Based on the name—something especially baseless and debased in modernity—a nexus between legality and legitimacy thus emerges.
The political ideal of openness and transparency reverts into its opposite when acts “in the name of the law” create an additional ruse and, therefore, another level of concealment and obscurity that does not pertain to other modes of legitimation. Jean-Toussaint Desanti has referred to this feature of speaking “in the name of” as speech that redoubles speech that both presupposes and conceals its subjective substratum.[8] Schmitt calls such speech a bluff when we writes that “it would be obviously grotesque if one announced court decisions in the ‘name of a measure’, instead of that of the king, of the people, or of the law, or if one would swear an oath to measures or affirm ‘loyalty to administrative directives’.”[9] However absurd, the last affirmation of loyalty was at the heart of Medvedev’s 2008 “election campaign” in Russia, in that he swore allegiance to the course (read: the administrative directives) of the Putin Plan for the country’s future development. Action “in the name of the law” interposes yet another screen between the sovereign political subject who delivers the decision and those who are required to recognize its legitimacy. The screen will become translucent upon a discovery of who it is that speaks and acts “in the name of . . . ,” veiling and obfuscating him- or herself in the impersonal system of legality, whereby “the law” elliptically denotes positive law. (Let it be said, in passing, that this ellipsis is not accidental, for it inherits a long history of conceptual abuse and mistranslation, starting with Cicero’s rendition of the Greek nomos as the Latin lex, an event that “is one of the heaviest burdens that the conceptual and linguistic culture of the Occident has had to bear.”[10] With this, Schmitt’s reproach resonates with the Heideggerian analysis of Latinization that has amplified the forgetting of being in Western philosophy.) In other words, the partitions will fall only when we reduce the formally legal superstructures to the political “life-world” of decision-making and polemical engagement that undergirds them and, at the same time, is betrayed by them.
According to Schmitt, a closed system of legality has always been and remains a normative fiction. A purely legalistic framework of legitimacy, then, requires various prostheses, on which it can rely in the substantive decisions and actions comprising its political life. Some of these prosthetic devices are equally formal and empty, including the formula “in the name of the law” that renders the name utterly nominalist and detached from that which it names. Others (e.g., the extraordinary lawgivers) are, indeed, endowed with the political existential richness but, as such, they militate against the metonymic reduction of legitimacy to legality. Others still imitated, in their colorful rhetoric the style of extraordinary law-givers, but in fact make a legalistic universe merely tolerable or more livable, which is our situation today. Be this as it may, the process of metonymization would have been impossible were it not for the mutation of the formal element of legality gradually severed from the content of political existence. When, revisiting Legality and Legitimacy more than a quarter of the century after the text’s composition, Schmitt stresses that “legality was originally an essential piece of occidental rationalism and a form of legitimacy, rather than its absolute opposite,”[11] he hints at the fact that, at that point in history, the very form of form was different from its emaciated, general, and abstract modern counterpart. As a form of legitimacy, legality is at once (1) its species or subtype, hence, a part of a much vaster framework of legitimacy, and (2) an overall form that is still tethered to the content from which it arises and, in the last instance, is subject to the decision-making power. In this sense, the substantive form of form is akin to what, in the 1920s, Schmitt termed complexio oppositorum, the complex of opposites, where a living form tensely brings together the most contradictory contents.
The heyday of “occidental rationalism” is the republican version of legality that “proves to have the much stronger validity . . . [of] the rational, progressive and only modern form; in a word, the highest form of legitimacy [die höchste Form der Legitimität].”[12] Nevertheless, from the “highest form,” there is but one step to the crudest formalism, in which the inflated generality of legality assumes the status of a pure form that, in the best case scenario, delegates the messiness of the political content to legitimacy, and in the worst, subjugates and molds legitimacy in its own image. It is in this slippage from the “highest” to the “purest” form bereft of any content whatsoever and in the subsequent inversion of the relation between legality and legitimacy that the metonymic abuse of modernity accomplishes itself. The pure form is a pale reflection of complexio oppositorum, in that it is indifferent to the content on which it imposes itself. A direct outcome of this parody is that bourgeois legality does not entail a determinate political arrangement and does not necessarily have to be democratic; the legislative Rechtsstaat component of the constitution “contains no state form,”[13] while the state “confined exclusively to producing law . . . does not . . . produce the content of the law.”[14] The modern political form is twice removed from that which it encompasses and dominates from the position of relative exteriority, whereas the living form of complexio oppositorum grows from the antagonistic content itself. This, succinctly put, is the difference between the systemic impulse featuring an extraneous relation between the content and the form thrust upon it and the totalizing drive replete with an “organic,” though by no means harmonious, connection between the two.
The confusion of the highest and the purest, most general form affords legality, as a particular mode of legitimacy, a chance to seize the place of the whole in an indelible metonymic displacement. But the chain of metonymization does not end there. A fictitious generality that has no intrinsic links to any given state form nonetheless zooms in on a particular state type in order to bestow upon it the mantle of exclusive legitimacy. It is not difficult to guess that this type refers to the legislative state: “In the general legality [allgemeinen Legalität] of all state exercise of power lies the justification of one such state type [eines solchen Staatswesens] . . . In this regard, the specific manifestation of the law is the statute, while legality is the particular justification of state coercion.” [15] To recap: a particular kind of legitimacy, legality has assumed the standpoint of generality only to legitimate a particular type of state. Its generality, however, can never achieve the status of the universal because it acts as a mere detour from one particularity to another, in a desperate effort to deny the force of performative self-legitimation to the act of sovereign decision-making. My sense is that, in the new administration, we are going to see legality stressed like never before, which makes the theoretical task of rethinking legitimacy in its variegated modes all the more urgent.
Notes
1. Carl Schmitt, Legality and Legitimacy, trans. Jeffrey Seitzer (Durham, NC: Duke UP, 2004), p. 9.
2. Carl Schmitt, The Crisis of Parliamentary Democracy, trans. Ellen Kennedy (Cambridge, MA: MIT Press, 1985), p. 30.
3. Schmitt, Legality and Legitimacy, p. 30.
4. Ibid.
5. Ibid., p. 4.
6. Carl Schmitt, Constitutional Theory, trans. Jeffrey Seitzer (Durham, NC: Duke UP, 2008), p. 186.
7. Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europeaum, trans. G. L. Ulmen (New York: Telos Press, 2003), p. 349.
8. Jean-Toussaint Desant, Un destin philosophique (Paris: B. Grasset, 1982), p. 61.
9. Schmitt, Legality and Legitimacy, p. 11.
10. Schmitt, Nomos of the Earth, p. 342.
11. Schmitt, Legality and Legitimacy, p. 96.
12. Carl Schmitt, Theory of the Partisan, trans. G. L. Ulmen (New York: Telos Press, 2007), p. 70.
13. Schmitt, Constitutional Theory, p. 235.
14. Carl Schmitt, Political Theology, trans. George Schwab (Chicago: Univ. of Chicago Press, 2005), p. 23.
15. Schmitt, Legality and Legitimacy, p. 4.
