Ground: Zero Juan Obarrio For the chapter I would like to explore what the grounds for critique are in the contemporary moment, if we take seriously the (post-marxist, Operaist, Autonomist ) notion that the whole of the social world has been colonized by the logics of capital and commodification (absolute real subsumption). Can there be an immanent critique of this state of things? Can another logic emerge from within the current systemic logic? And where would it be located? In the political sphere? Within the social movements? The organized labor movement? Academia? An articulation of various positions within these fields? Where does the legitimacy of critique reside today? What is the vantage point for critique in a social world that seemingly does not have any outside? What is the exterior, critical point of real subsumption and global jurisdictions? Real subsumption is giving way, once again, to formal subsumption: zones of exception, economic enclaves, lesser sovereignties, privatized violence and security, and a plurality of legal norms, show a deep process of segmentation and fragmentation of a world colonized by capital (and the liberal rule of law ), in particular in the Global south. While this internal fragmentation opens up new spaces for resistance and critique, what is the ground for critique in a post-foundational political and philosophical world? And moreover, in a world in which conservative and reactionary social forces have appropriated the instruments of critique and have been successful in turning them against emancipatory thinking or progressive social programs? What is immanent critique in a post-foundational world? What would critique mean within the current crisis of historicity and depth? What would critique mean in the contemporary moment of spectacle and surface, shaped by digital-financial capital of the seeming end of distinction between appearances and essences, in this simulacral culture without hidden truths? It seems as through critique today necessarily has to revisit the question of violence and the force of law. What about the violence located at the foundation of the law and what about consent vis-à-vis the deployment of the law? And what of critique amidst this alleged global political consensus? For the chapter on critique I aim at connecting these thoughts with some parallel work I am doing on law, foundations of the juridical, force of law and critique of violence. What would be the temporality of critique in a social world dominated by the temporalities of finance and the suspension of the law in a global state of exception? 1
In terms of juridico-political regimes of governance, where does critique stand when there seems to be no ground norm, no fundamental, foundational law? Ground: Zero is the name of the contemporary moment. Ground Zero refers to both the absence of metaphysical foundations for the political and for critique, as well as the concrete geographic place and symbolic space located at the source of the suspension the law and of a global civil war without end that shapes governance through security and surveillance. The contemporary articulations between state violence and the expansion of capital constitutes -once again- a theologico-political problematic. Its context is the juridical condition of a global state of exception enforced through the trans-national hegemony of American foreign policy. It is necessary to frame this condition within the context of political theologies implicated in this suspension of the law. It is necessary to locate this suspension that reenhances the power of the law within the context of the re-invocation and repetition of an original event of appropriation. This unveiling of sacredness as foundation of the authority to declare the sovereignty of the law void generates a critique of the political doctrine of liberalism informing both legal positivism as well as contemporary re-incarnations of natural law theory, which occlude the remaining presence, in the constitution, of an ineffable excess violence, the sacred that liberal legal theory cannot subsume. Political theology is invoked by all those philosophies that constitute an inversion of liberalism and any theories that avoid the question of exception. Political theology, locates sacrifice in the place where liberal theory locates contract, that is, at the source of political community. Political theology operates at the level of essence, not appearance. It finds its roots in revolution, as foundation of the law, as well as in revelation as a fundamental register of the political. It is located in opposition to the tenets of liberal positive theory. Political theology presents the questions of state violence, revolution, terror, and sacrifice as the key political categories that form the platform for a post-foundational constitutional theory and juridical doctrine. A contemporary perspective on the theological foundation of the political announces that what forms the underlying objective basis of the political, is not Kant s categorical imperative-as-transcendental judgment, but rather the immanence of popular sovereignty embedded in the Constitution. Or, put in the context of millennial politics and early twenty-first century juridical structures: instead of the fullness of Kelsen s foundational law or Ground Norm, the basis of the political is the absolute void of Ground Zero. 2
Ground Zero emerges today as the perverse core of a foundation-less political ontology, as the dénouement of the law s tautological nature. If political theology presents an inverted mirror image of liberal theory that locates the source of sovereignty in exception and not on the law we could consider Ground Zero as the opposite reflection of Rawls s original position, undisclosed after the proverbial veil of ignorance has been ripped away. (Rawls s liberal theory of the juridical being one of the main implicit opposing interlocutors political theology today, as Kelsen s work was for Schmitt s theory). Ground Zero appears thus today unconcealed, standing for the empty locus of power, as in Claude Lefort s conception of democracy, which interrogates the reason behind the permanence of the theologico-political. The main contemporary political problem is the unmediated and unlimited sovereign decision over the space of that void, of that empty place located beyond any regulation, or ground norm. For instance, as discussed in the last few years in juridical and political cenacles, should the issue of a terrorist attack be considered a crime or an act of war? The political (and its impact on broader, geopolitical) framing of the problem, if one or another option are followed are, needless to say, absolutely different. Far from Kant s reflection on cosmopolitanism and the ethical program of a perpetual peace, the contemporary geopolitical, globalized world is not arranged according to any categorical imperative. At present, the question of a perpetual war on terror, without end, which immanently violates and transforms national and international law as it unfolds, determining context of the global transformation of rule of law democratic systems. The contemporary blind spot of the liberal theory of the law is the widely invoked terrorist threat that frames the present global state of things. The critique of this global political state (of things) has to address the question of the exception, as opposed to the norm; and it has to crucially invoke the notion of popular sovereignty, which links the Constitution and the rule of Law to the Revolution, and thus to the exception. Two modern liberal revolutions are at the root of the contemporary doctrine on terrorism. In fact the genealogy of modern liberalism, universal rights, and the contemporary source of the political doctrine of terrorism, can all be traced back the Terror of revolutionary France, as well as to the actions of then-labeled terrorists of the original Tea Party, and the American revolutionary war, the historical event of expropriation / appropriation that constituted the foundation of the sovereign power enshrined in the American Constitution. 3
The tracing of this genealogy leads to the problem that all justice is, in the end, revolutionary justice. The further consolidation, or slow dismantling of the most ominous both secret and public- aspects of the global legal state of exception has to be analyzed in the light of that foundational juridico-political tenet. In current political discourse America, as a central political category of our times, can be considered as yet another theological category that has become secularized, as Schmitt claimed of most all-encompassing modern concepts relating to the doctrine of the state. Indeed, the category functions as quasi-sacred or sacralizing- statement in current liberal, secularized versions of the conservative credo on a national manifest destiny. Is globalization, as a machine that re-produces entrenched differences, the mere universalization of the American locality? In the slippage from exception to exceptionalism, which constitutes an American legal idiom the figure of the USA as a global sovereign gets sketched. Certain American legal theorists assert that this geopolitical hegemonic actor would dismiss international law and global jurisdiction only on the basis that those are allegedly not founded on popular sovereignty. This a dubious self-image as well as a distortion and fetishization of most of the geopolitical world. Those theories of sovereignty also operate under the assumption of the USA constituting a victimized agent, being located on the receiving side of terrorist violence. In all actuality, such a global sovereign conducting over the long term a Schmittian politics pivoting on the absolute distinction between friend and enemy through state violence directly or by proxy will constantly encounter opposing threats from actors that are more than imagined potential enemies. Analyzing popular sovereignty as the locus of the legitimacy of the Constitution, the current critique of liberal legal theory displaces sovereignty to the realm of the ordinary, placing it in the everyday practice of ruling by decision within courts of law, and in the authentic existential choices that individual citizens make as members of a larger popular sovereign. Beyond the theoretical discussion on where popular sovereignty actually resides within a liberal democracy (a debate that goes from Rawls to Derrida s Rogues), this approach recalls a different, if related, perspective on law and violence than that of Schmitt. Walter Benjamin s conception of sovereignty and exception emerged from an implicit conversation with Schmitt s work on political theology and elicited explicit responses from the latter. The Möbius strip of correspondences between Schmitt and Benjamin (different commentators argue about who was responding to whom in that intellectual debate), even if opaque, fits well with the perspective on sovereignty presented by Schmitt. Liberal constitutional theory, conflates two levels, or two scales, of legal decisionism. But the blindness of justice enshrined in such theory produces a blind spot. 4
Something exceeds the implicit analogy between sovereign decision which is always already theologico-political and the minor scale of sovereignty in terms of jurisdiction, as exercised by courts. Benjamin s proverbial dialectical distinction between the violence that founds the law and the violence which preserves the law illuminates an occluded remainder at play in the liberal account of sovereignty. Indeed, the original historical context of revolution constitutes the moment of emergence of a violence that founds the law. Yet courts of law, enacting the power of jurisdiction, solely embody, through localized judgment, a mythic violence that conserves the law. Political theology always operates against another potential dystopian limit: that of the sovereign destruction of the entire world through the deployment of a force capable of founding and destroying sovereignty, on a global scale. This scenario of extinction may be articulated with that other type of force defined by Benjamin as divine violence, which represents an absolute anomic violence, residing beyond any juridical order, as the tain of the law s mirror, which opposes the law and legally mandated force. While the first, destructive, violence, can be instrumentalized by sovereign reason, the second one represents a violence of pure means without end. Benjamin ascribes to it an enigmatic bloodless character, which was famously referenced in Derrida s critique of the essay, and in contemporary parlance would accommodate the question of nuclear power. There is another way through which Benjamin s echoes find their way through a contemporary political landscape in which legal theory and historiography, in the context a of war without end, of violence as pure means, become a play of mourning. The current global context somewhat resembles the historical backdrop of Benjamin s study of political sovereignty in the German baroque drama, where he paraphrased Schmitt, crucially displacing his notion of exception. Schmitt s political theology was a statement on the alleged inaction and the seemingly dead-end crisis of parliamentary democracy as well as on a profound crisis of consciousness of the concept of the People in a specific nation-state, at a precise historical moment. In the contemporary political context of the Global North the juridicopolitical terrain of the response to the threat of terrorism presents a conception of liberal democracy as a system that cannot localize the place of a supreme authority with power over decision. In this contemporary moment of history as a politics of mourning, and of the political having been overtaken by the technocratic rule of digital financial capital and legalistic norm, the figure of the sovereign might correspond to the one studied in Benjamin s treatise on the Baroque. This mannerist sovereign excludes exception, endlessly deferring the moment of decision, incapable of achieving judgment in a political world managed by courtiers and intrigants. Our technocratic present might belong to the figure of the Bataillean sovereign, destined to be sacrificed by the logic of sovereignty itself. 5