The Irrationality of the Political (Pt. 1)

The Rule of Law versus the State of Exception

Very short summary: This is a two-part essay on the crisis of contemporary liberalism. I argue that this crisis reflects the growing influence of a conception of the political as a praxis that is beyond human rationality and reason. The first part addresses one of the most important symptoms of the growing attraction of this conception, namely the appeal to the “exception” to justify the infringement of rules of social and political morality. The second part will go deeper into the underlying cause of this symptom, which is the idea that the political is the domain of the mystical rather than the rational.

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Since Donald Trump returned to the White House last January, a distinctive pattern regarding the decisions of the executive has emerged. From the protectionist trade policy to the deportation of (both legal and illegal) immigrants, decisions are systematically justified by an appeal to emergency and exceptional circumstances. Whether these justifications are constitutionally valid is a difficult question that will only be settled after a long legal battle, with significant damages having already been done. Besides the constitutional and legal aspect, the pattern reflects a deeper philosophical issue about the sources of political legitimacy.

All historical accounts of the emergence of modern capitalism and the growth of wealth that came with it agree that a major factor has been the development of more impersonal and predictable social relations. Impersonality considerably limits the constraints on the size of the circle of social, economic, and moral interactions. In particular, as soon as economic relations become more impersonal, markets gain in size, and division of labor can be deepened further. Comparative advantages can be exploited, and gains of productivity ensue. Impersonality in the economic realm means more specialization and a significant increase in the scope of mutually advantageous exchanges. Impersonality is also a significant social and moral progress. More impersonal social relations entail greater freedom, at least in the sense that it liberates people from the social and moral pressures coming from their kin group. Impersonality comes with independence, as one is no longer tied to a restricted number of social groups and their formal and informal rules. It also favors the development of generalized forms of morality where the same moral rules apply to everyone alike, without arbitrary distinctions based on considerations related to one’s personal and social identity.

The benefits of predictability are especially clear in the context of what economists call the commitment problem. In essence, many social relations involve promises (e.g., to honor a contract or to not take advantage of an opportunity at the expense of someone else) and threats (e.g., to retaliate in case someone doesn’t cooperate), the credibility of which favors mutually beneficial interactions. This is especially true for economic relations. Any economic exchange entails a reciprocal commitment to honor the terms of the bargain. In virtually all cases, informational asymmetries, monitoring costs, and bargaining power give incentives to at least one of the parties to push for a revision of the terms of the contract to their advantage, or to simply cheat at the expense of the other participants. The expectation that this may happen will dissuade individuals from committing, thus wasting mutually advantageous opportunities of economic exchange. While (informal and eventually formal) rules can address the commitment problem, this is only the case insofar as individuals can predict that rules will indeed be followed and enforced. More generally, mutually beneficial cooperative relations that involve a form or another of commitment cannot develop if the behavior of individuals and organizations, including rule-enforcers, is too uncertain and hard to predict.

Impersonality and predictability are major components of social equilibria in modern societies. By social equilibrium, I mean a situation where expectations about individuals’ behavior are generally confirmed (e.g., we rightly expect people to stop at red traffic lights), based on broad assumptions about everyone’s values and interests. While predictability is a component of all social orders (it’s hard to imagine a society where individuals’ behavior is genuinely chaotic), it operates at a larger scale in liberal, or constitutional, democracies. In these democracies, you can confidently predict people’s behavior in local, daily interactions, and you can also assume how economic and political actors, including state institutions, will behave in circumstances you have never personally been in before.[1]

This unprecedented scope of predictability is related to the impersonal character of the social and political morality of constitutional democracies. You can expect what rules will apply to you and others in different situations because rules are general and apply to everyone in a specific situation. Crucially, impersonality is not the same as impartiality. In modern democracies, tax rules are, for instance, not impartial in the sense that they can be designed to bring advantages to some parts of the population. They are nonetheless impersonal because they apply to all; all persons who are in the same situation are treated the same way. Impersonality is therefore a core component of the rule of law, which is itself (alongside the separation of powers and the existence of a bill of rights) a constitutive feature of constitutionalism.

The rule of law acts as a fundamental check on the state’s coercive power. It restricts the legitimate exercise of coercion to the enforcement of general rules that are publicly known and that conform to fundamental principles that cannot be infringed on, either by popular sovereignty (eventually through the legislature) or a despotic ruler. The impersonality of rules trickles down from the impersonal character of these fundamental principles, which are completely detached from specific cases and don’t refer to any person or place. For instance, jurisdictional rights are attributed to persons-qua-persons, i.e., entities with a particular moral status that is indiscriminately ascribed to any human being. Such fundamental principles can themselves be interpreted as general rules of conduct that restrict the range of rules (law and legislation) that can be legitimately enforced by state authorities.[2]

“Aristotle with a Bust of Homer,” Rembrandt (1653)

Until now, I’ve provided an account of the political as the domain of legitimate coercive enforcement of general rules of conduct. The political is the domain of social life where coercive power is exercised to guarantee that fundamental principles that apply to all can be predictably relied upon. Political legitimacy is then tied to the fact that the rules that motivate the use of coercive power are justified to everyone, and the exercise of coercion is itself respectful of procedures related to these rules. This rule-based conception of the political is meant to be the most supportive of freedom, both in the non-interference and the non-domination meanings of the word. Coupled with the recognition of jurisdictional rights and the separation of powers, the rule of law considerably limits the ability of state authorities to interfere with individuals’ lives. The point here is not to fully eliminate coercive interference but rather to restrict it to predictable circumstances related to the enforcement of properly justified rules. In this conception of the political, rules cannot be properly justified if they are not impersonal. Impersonality provides a protection against domination, defined as the capacity to arbitrarily coerce someone to do something that they would not do otherwise.[3]

At the limit, the rule-based conception of the political seems to reduce this domain of social life to a quasi-algorithmic praxis where discretionary decisions by those who rule are excluded. This is not quite so, if only because the rules of conduct to be enforced are general. They don’t fully determine what should be done in any given set of circumstances and are actually silent on most specific social, legal, moral, or economic issues. Therefore, there is a lot of room for discretionary decision-making and collective deliberation, either through voting procedures or technocratic and administrative channels. But even then, general rules provide some guidance and limit political arbitrariness, being either popular or personalistic.

The rival to the rule-based conception is the view that the essence of the political is in deciding when rules cease to apply and on what grounds discretionary decisions involving coercion can be legitimately made. Many have championed different versions of this conception multiple times, but among them, the German legal scholar Carl Schmitt stands out. There are two related key ideas in Schmitt’s political theory that are especially relevant.[4] First, a personalistic view that grounds sovereignty in the ability to “decide on the exception.” Sovereignty only manifests itself in the possibility of an extra-legal state of exception whose conditions of application are themselves settled under the authority of the sovereign. This is not an anti-constitutional view per se because the very state of exception presupposes a constitutional order. However, Schmitt is also clear that the exception “cannot be circumscribed factually and made to conform to a preformed law.”[5] Therefore, what sets the state apart as a political organization is not that it has the monopoly of legitimate coercion to enforce rules, but that it has the “monopoly to decide.”[6]

The second key component of Schmitt’s account is his well-known friends-enemies distinction, to which he argues all political actions and motivations can be reduced. Schmitt develops a critique of liberalism for its “negation of the political” in this specific sense:[7]

“The negation of the political, which is inherent in every consistent individualism, leads necessarily to a political practice of distrust toward all conceivable political forces and forms of state and government, but never produces on its own a positive theory of state, government, and politics. As a result, there exists a liberal policy in the form of a political antithesis against state, church, or other institutions which restrict individual freedom. There exists a liberal policy of trade, church, and education, but absolutely no liberal politics, only a liberal critique of politics.”

Schmitt is clearly right that liberalism builds on a “distrust toward all conceivable political forces,” insofar as liberalism is equated with the rule-based conception of the political that ignores the personalistic and genuinely conflicting nature of this domain of social life. For liberalism, the political aims at reconciliation under the authority of shared rules to which everybody abides, while Schmitt contends that it culminates in warlike relations. The political is the realm of agonistic conflicts that ultimately must be solved by extra-legal authority, including the use of sheer force if needed. Far from being illegitimate from the Schmittian perspective, the use of force is nothing but the logical continuation of the claim that sovereignty is located in the ability to declare the state of exception. By definition, in the state of exception, rules no longer apply. The ruler becomes a leader whose action is no longer impeded by constitutional constraints and whose legitimacy is totally grounded in the pursuit of overarching goals that trump any other considerations.[8]

It’s straightforward to see why the Schmittian conception of the political is unacceptable from a liberal perspective. The Schmittian conception concludes that the fundamental premise of liberal politics, that reconciliation of diverging views is possible under a framework of general rules, is a mirage. For the Schmittians (and here a convergence with Marxism emerges), liberal politics can only try to hide the fact that the political realm is constituted by radically conflicting interests, values, and worldviews and that “reconciliation” actually means the victory of one group over others. Once the radical conflicts that liberal politics is trying to hide are exposed, it becomes clear that impersonal rules, the rule of law, and more generally, constitutionalism provide only a veil of legitimacy that must be lifted as soon as difficult and decisive decisions must be made in the war against enemies. Liberalism bets on an underlying harmony and the possibility of creating a constitutional framework to establish and preserve it. The Schmittian conception counters that what seems to be harmony is domination, and that the political is the domain of life where leaders federate friends to annihilate their enemies.

We therefore understand why appeals to emergency and states of exception are always controversial in liberal and constitutional democracies because they are the ultimate test of the coherence of the liberal, rule-based conception. They can only seduce populist leaders and voters who consider that political legitimacy is not located in general rules. There are several challenges for proponents of liberal views. The first is that, as a matter of political practice, discretionary decision-making is unavoidable. There indeed are exceptional circumstances, like natural disasters or wars, where decisive decision-making by a leader is needed. This applies also to more daily political decisions, if only because rules need to be interpreted. This leads to the second challenge, one already identified by Thomas Hobbes, in what the political philosopher Jean Hampton labeled the “regression argument for absolute sovereignty.”[9] In substance, the argument is that laws, and more generally, rules, must be interpreted and enforced by individuals or groups. Ultimately, the effectiveness of rules comes from the legitimacy of those individuals and groups. At the end of the day, legitimacy must be located in persons, not in rules, on pain of falling into an infinite regress.

These challenges are not insurmountable. However, the roots of the Schmittian conception of the political are located in a more fundamental presupposition that several liberals have shared, i.e., value pluralism. In the second part, I will discuss how the recognition of the radical conflict between a plurality of values lends itself easily to Schmittian-like conceptions of the political. The irrationality of the political is indeed what grounds, at the bottom, that it fully consists in conflicts that call for personalistic solutions.

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[1] Of course, predictability is not perfect, nor should it be. Uncertainty about our behavior is also part of what makes us free. In a society where freedom prevails, the behavior of individuals cannot be fully predicted. Also, predictability is impaired by unforeseen outcomes of individuals’ behavior as well as by exogenous events that cannot be perfectly anticipated.

[2] This broadly follows Hayek’s account of the rule of law in The Constitution of Liberty. Hayek’s later distinction between “law” and “legislation” associates the former with the general rules of conduct and the latter with laws voted by the legislature. F. A. Hayek, The Constitution of Liberty: The Definitive Edition (Routledge, 1960 [2020]). Friedrich A. Hayek, Law, Legislation and Liberty, Volume 1: Rules and Order (The University of Chicago Press, 2011).

[3] For this “republican” conception of freedom, see Philip Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (Cambridge New York: Cambridge University Press, 2013). Hayek notoriously uses a similar conception of freedom in The Constitution of Liberty, p. 11.

[4] Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab, 1st edition (Chicago: University of Chicago Press, 1920 [2006]). Carl Schmitt, The Concept of the Political: Expanded Edition, trans. George Schwab, Enlarged edition (Chicago, IL: The University of Chicago Press, 1932 [2007]).

[5] Schmitt, Political Theology, p. 6.

[6] Ibid., p. 13.

[7] Schmitt, The Concept of the Political, p. 70.

[8] Schmitt’s conception of the political grounds a critique of individualism, more than a critique of liberalism. In his critical discussion of populist democracy, Michael Oakeshott notes that anti-individualism leads to the substitution of the leader for the ruler. See my essay on this topic.

[9] Jean Hampton, Hobbes and the Social Contract Tradition (Cambridge Cambridgeshire ; New York: Cambridge University Press, 1986), p. 104.