Cosmin Sebastian Cercel
In the introduction to our edited collection States of Exception: Law, Theory, History written at six hands together with Gian Giacomo Fusco and Simon Lavis weeks before the real state of exception of the global COVID-19 pandemic, I was railing as much as academic conventions and well manners still permit, against the myopia prevailing within the legal field (and presumably beyond) with regards to the impending catastrophes befalling our law-ordered societies. An interested reader is going to find these fulminations sooner rather than later as we have just been announced that the book is under production with Routledge. In hindsight, it just seems to me that my past recent activity as a critical lawyer has been somewhat reduced to a series vindictive interventions trying to open the closed eyes of our well-established colleagues acting within their established fields at the looming catastrophes sapping legality. A more recent and somewhat less polite rendition of this is to be found here (https://czasopisma.uni.lodz.pl/Iuridica/article/view/6147/5787). The core of my argument was that one needs to look closer at the worrying picture in front of us and read it as it is without displacing, adding filters or edulcorating it. Authoritarianism is here and most likely here to stay, and legality does not have any necessary connection to democracy and liberalism as our colleagues acting in the populism and constitutionalism and democracy cottage industry would have it.
Parts of my desperation came not only from the myriad and manifolds ways through which our self-proclaimed democracies were taking in order to normalise the exception and to sap their own politico-legal promises, nor from the everlasting production of platitudes submerging jurisprudence and constitutional theory under the label of populism, but from a disavowed expectation that faced with the Real of authoritarian threat at least some of the problematic antinomies of our paradox laden polities are to be exposed and worked through. This was as much an idealist illusion as it was myopia on my part as to the reality of power relations within the production of knowledge, as it was engaging in a form of wishful thinking that a critique of ideology in the age-old Marxist sense could still be effective. Yet, to some extent, this did not seem as far-fetched and bewildering as it strikes me know. As Przemyslaw Tacik rightly pointed out (http://cejsh.icm.edu.pl/cejsh/element/bwmeta1.element.ojs-doi-10_18778_0208-6069_89_03), this would have been the most natural thing to do for critical lawyers, and arguably for the defenders of liberalism themselves, namely to struggle together for the preservation of the Enlightenment legacy of our constitutional texts and institutional textures against the authoritarian onslaught.
However, as experience has shown both within the sphere of academic production, conferences and personal encounters, this illusion was soon to be dispelled. If anyone bothers to read the liberal canon in the constitutional theory of the past years, there is little common ground for a politics of a popular front. Not only the self-assurance, arrogance and self-righteousness of the defenders of the legal faith are there to stay, but so it is their self-deception, the limits of their intellectual horizon in dealing with the catastrophe. In a nutshell, all that makes one’s life in the legal academia nasty, brutish and presumably short, is there. Infatuated with the founding myths of liberal political philosophy and paying as little attention as one could to the evidence provided by history, one has the feeling of dealing rather with pontiffs and preachers of a lost faith than with scholars engaged in the production of knowledge. In a word, with ideologists, part of the unfathomable machinery of apparatuses developed by states and the capital in their connivant reproduction of the forces of production. I was writing then, at it would be apt to recall here that “I” is plural in this instance, that ‘ignorance of the law excuses no one, and the substance of what is repressed is likely to catch up with a subject’s historical becoming’.
And then it hit. It is hardly two weeks now that law-officials all over the world had to face the ghastly unfolding of the exception and had to tackle the reality of a lack of normative frameworks able to provide for the regular application of rules. At some level, the exception was real at least for some fleeting moments, when police officers, border officials, university administrators and managers – and the list could go on with a specific emphasis on those finding themselves at the constant moving borders between public office and private function – had to think beyond the limits of the existing rules and make a judgment based on some uncertain reading of the reality of the situation. That some sort of chaos ensued is not a surprise. That some of that chaos was part of what is likely to be a long series of extraordinary measures is not a surprise either. In the midst of the silence of the law, one was forced to go back to either some institutionally built sense of right and wrong – that is on some implicit ideological trope or had to exercise discretion either with fingers crossed or with a renewed sense of sovereignty. A myriad of petty tyrants emerged across the globe, while the old gods of rule of law were veiled. And yet, this was nothing new. It was as real and as fictional as any exception can be. It was first real as the lethal potential of an unfathomable agent at the very borders between what science describes as the living and the non-living, a deadly agent transcribed and identified within our registers of the symbolic as uncertain, which nonetheless operates a break, and one would safely imagine a disastrous one within the structures of our capitalism. It was also real as a mediated interpretation of its lethal potential, based on scientific modelling, statistics and analysis, and so much more real as it translated into a manifold series of cancelled flights, trains, border controls, lockdowns, in short in exceptional measures taken under the aegis of protecting our polities against its deadly potency. And it was fictional as at some level a legal or ideological fiction had to operate as to deal away with its materiality and imagine or project the continuity of the existing normative frameworks beyond the obvious disruption. Things are out of the ordinary, but by moving away and even far away from the ordinary we shall be able to get back to our normal ways. You just have to close your eyes or look away.
If anything, the exception that we live in is able to offer us a starker picture of what was already there. Among social-media there has been a flourish of photos with empty public spaces, of eerie urban landscapes from which bodies have been subtracted, starkly reproducing the empty formal spaces in Chirico’s paintings and casting an unwitting formal semblance with the imaginary surrounding authoritarian landscapes. Everything is clean, neat and well-ordered. If one would push this a step further, there would be an even more startling resemblance with the uninhibited (or deserted?) city in Arthur Bosse’s frontispiece of Hobbes’ Leviathan. Indeed, at the West of the city, around six figures seemingly protect the fort and patrol the empty streets, while towards the centre near the cathedral two unsettling silhouettes of plague-doctors expose their nose-cases. One should not hasten here to move towards an analysis of the biopolitical significance of this depiction as Agamben does in his Stasis, as tempting it may be. It is perhaps more useful to think in terms of the continuity that we share with this politico-legal imaginary of empty streets and patrolling armies, under the silent gaze of morticians and undertakers. It is not by chance that within the frontispiece that otherwise exposes the arcane of power and encapsulates Hobbes’ construction of the political automaton, we can see depicted the core practice of exception. In a very specific way, we are reliving and re-enacting this imaginary at the moment that I am writing these words – and this is for the luckiest of us, that is in places in which the state still aims at fulfilling its basic function of protecting its subjects. We do indeed inhabit the world of the frontispiece of the Leviathan, and again the most fortunate of us do engage in the construction of this political automaton, by teleworking from the relative comfort of our houses, while in temporary, state-mandated or self-imposed isolation.
A point needs to be recalled here before I move further, that is the fact that the Leviathan – and most interpreters of the frontispiece would agree with it – is floating. Of course, not only it is floating as a transcendent, fictional, artificial machinery, seemingly connected to the sea, but also it is floating as being unstable and with uncertain borders. The subtracted inhabitants construct the Leviathan in the very moment of the exception and through their sublation. Yet this also means that the contours of the Leviathan are never stable. Agamben proposes to read this as a moment within a series of almost dialectical shifts of the city – that is of power and sovereignty – from civil war to the articulation of the sovereign. I claim that the experience of the exception that we live in could teach us a bit more about what the floating of the Leviathan is.
Its name is class struggle, or even more appropriately, class warfare, that is the series of objective processes ultimately determined by economic factors through which one is included within the sovereign body. The imagery of the exception and of the construction of sovereign power positively obfuscates this – there is no point in criticising it insofar as in 1651 political philosophy was still fighting the shackles of theology – but one needs to recall that what supports the sovereign is hidden from the eyes of the viewer, just as the real material conditions in which the exception unfolding nowadays are positively hidden from our eyes by the operation of legal ideology and our hasty return to political theology: all that we are able to see is the desolated urban landscapes, the brandishing swords of the brasses all over the world and the gazes of the morticians counting deaths on a daily basis. And yet as important insights one might get from this empty picture, what is left outside its purview is the very process through which the capitalist Leviathan assures its reproduction, the very fiction of the continuity of the polity.
This is perhaps the basic lie at the core of the affirmation of modern sovereignty, namely the positive obfuscations of the material processes through which one becomes part of the sovereign body, one count as someone rather than a mere disposable workforce. Turning our gaze towards the invisible part of this “butaforie” through which neither sovereign nor power would survive more than a year. In the midst of the crisis, we are all not safe within the walls of the city, for one is safe only insofar it is part of the sovereign body whose limits are floating. As we know it for a while now, this mode of production is able to create something even worse than exploitation, that is the effective construction of economic and political expendability. Within the structure of the capitalist system nowadays hundreds of millions, if not billions of us are in the position of being or risking to becoming superfluous. The shifting borders between those who are part of the relations of production, that is integrated even through exploitation to the world of capital, and those who are not is the crux of this foundational exception.
Underlining the panic engendered by the exception is the recognition of one’s own fragility within this structure, an unarticulated one that makes this pandemic to be part of the same sequence of crises opened up by the 2015 one concerning refugees, the rise of so-called populism and the nationalist turn in European politics. At its core is the un-avowed recognition of the existing of these borders. To put it simply, one day one is part of the relations of production, the other day one is no longer able to have their social validation drawn from this economic participation. Looked at from this vantage point nothing is new, as the exception that we live in is simply a stark part of the history of class struggle through which one was able to attain their status within our polities. Of course, the unprecedented level of disruption, emergency measures and legislation – some of them taken without even the least measures of constitutional scrutiny and normative consistency – are there. The lethal potential of the virus is also a reality beyond the interplay of power/knowledge strategies, and as a reality is already structured symbolically, as a lethal potential within these objective material conditions. This reality of the exception is the result of the heightening contradictions of this mode production – to use an antiquarian language – which has privileged through its ideological apparatus and mouthpieces austerity over solidarity, repression over social integration, and spectacle over reality.
Over it, the fictional and ideological guises that support and strengthen it are merely reconstructing the all too known confusions between military, judicial and medical powers that were already apparent at the wake of the last century. In this respect, France’s president Macron statement of the last week mentioning the state of war is indicative as an eerie repetition of 2015’s president Hollande in an ostensibly different context. As I write, in my home country, police sirens do overwhelm those of the ambulances. Such a reliance on the repressive apparatus is nothing short of necessary under the existing conditions, insofar as the medical intervention is anything but the rule in the reaction to the pandemic. Closing borders, reinforcing the legal provisions for preventive measures, extraordinary police powers and criminalisation are simply other means through which the real impotency of the Leviathan in front of the virus is displaced. As we all know, illnesses cannot be fought with drones, but drones do indeed come handy in keeping people in their places.
Within this move, what becomes apparent is the resilient ideological trope of the nation as a distinct organic unity grounded in both blood and soil, constructed and rooted in the long-standing effects of the revolutionary defeats and derails of the past centuries. This opiate with its particular strength, surviving as an undead, as precisely the shadowy double of the globalized capital and never actually challenged as such, is not some extraneous alien by-product of crises befalling otherwise rule-of-law centred democracies, let alone some trick employed by power-thirsty demagogues. Rather it has always been at the core of our constitutional arrangements, beyond pledges, safeguards and supranational, regional or international scrutiny. One should not go further than the constituents of the nation-state, that is sovereignty, population, territory just to have an understanding of the imagery guiding the construction of legal knowledge as a necessary appendix to state ideology and the necessary link between the institution of the exception and nationalist outbursts. But one should perhaps go further and ask to each extent these constituents do objectify and obfuscate the materiality of struggles that lie behind the discursive construction of these constituents, something that even our enlightened and cosmopolitan and liberal colleagues refrain from doing by simply dismissing it as some extraneous knowledge to the sphere of law.
Indeed, these are seen to be matters for historians, and at best for legal historians to debate, while at worst philosophical speculations for that intellectually dubious field of continental theory (the unchartered territory where academic irresponsibility meets fancy and impenetrable language!). In their quest for brevity, clarity and simplicity – which would usefully serve as expert memos to chanceries and private bodies – the doxa has instituted itself as a self-perpetuating discourse positively stiffening any serious engagement with what matters as a relevant understanding of the status of law and legality. To paraphrase Fredric Jameson, what once used to be texts laden to contradictions, necessarily open to interpretation (or, horribile dictu,deconstruction!) have been turned into unquestionable truths reified under the labels of constitutions, contracts and civil-society and soon are going to be turned into orders.
The empty streets of our polities as eerie and to some extent as reassuring that may be, are just a fleeting moment of decades of dismantling of the social welfare state – itself the product of a history of class struggles. The derail of the locomotive of history that became apparent in the late 1980s, another result of other derails, confusions and treasons, has made a seemingly never-ending dream of unbound capitalist accumulation new normality. Grounded as firmly as it could be in the social basis of neoliberalism, the new ideological superstructure (and yet one has to insist on the ambiguous role of the law in structuring the relations of production and in constituting what ‘men say, imagine, conceive’) kept the dark secret of the exception (together with other ones such as colonialism, imperialism, fascism and the list could go on – all related in a way or another to the ‘extra-economic’ factors that determine primitive accumulation), away from our eyes. The state of exception was somehow the antiquarian concept one could use when discussing the past martial law in Jaruzelski’s Poland or dictatorial measures in some country where triumphant liberalism was not yet cementing social relations. When Agamben, brought it back as a critical tool for the existing politico-legal status quo, on the waves of a certain resuscitation of Carl Schmitt and Heidegger, owed to Derrida’s Force of Law and Foucault’s Society Must Be Defended, the exception had been almost completely erased from the daily analysis of our constitutional law.
Indeed, global constitutional lawyers, working somewhat in the shadow of Habermas’ constitutional patriotism, were all too busy with writing the constitutions of the newly acquired provinces of Empire. This is perhaps the important debt that we owe to Agamben, beyond the limits of his philosophical project and certainly beyond the unfortunate and rather hasty positions expressed in the last days. The intimation launched to lawyers’ silence over the core of their being-in-the-law and the profanation of liberal constitutionalism’s dark secret of suspending its normative promises was able to draw attention over the law as part of the problem, rather than a neutral medium able to limit state power. Yet, by going both too far and too wide, and displacing the jurisprudential problem of the exception at the scale of modern history (and one should not forget that within this line of thought modernity would start with Aristotle!), what was left outside was the historical inscription of the exception in a constitutional history of class struggle.
In my contribution to the States of Exception I was calling for a revision of constitutional history, for ‘if one is to take the paradigm of the exception seriously, important questions related to the lawless character of authoritarian regimes do indeed need to be evaluated, just as the very symbolic line between liberal legality and its authoritarian other needs to be revisited.’ The exception in which we find ourselves now does indeed inscribe itself in a long series of events sapping (perhaps from the very moment of their utterance) the promises of liberal constitutionalism. One should just perhaps need to recall how general Cavaignac’s quelling of the June Uprising in 1848 was the ur-type commissary dictatorship, and how it was directed against the proletariat. Within its trail, the long history of uses of exceptional powers was in a way or another related to the inefficacy of ideological apparatuses and ended up being directed against what was used to be called the proletariat. If I still believe that such an engagement with history is urgent and necessary, what I feel that could complement the task of the critical lawyers in these times of crisis is the return to the materiality of the exception.
 See, for instance, Gaspar Miklos Tamas, ‘On Post-Fascism: the Degradation of Universal Citizenship’, Boston Review, June 2000.
 Fredric Jameson, The Cultural Turn (London: Verso, 1998), 96.