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Dictatorship or Permanent State of Exception? (part 1)

François Debrix should be thanked for the scope and quality of his work. His stimulating reading of the theses supported in Global War on Liberty brings them into sharp relief and encourages a critical development of them and thus of those contained in his own reading.

Debrix asserts that the book does not contain the concept of the modern form of the State. I agree with this observation. Moreover, this was not the objective of Global War on Liberty. The study is situated on a prior level. It is, first of all, a phenomenology of the transformations of the political. It aims at bringing together what is generally apprehended separately, event by event and without any interconnection at the national and international levels. We live in a globalized world, a world-system, and yet observations on political reforms are fragmented. The primary object of the book is to collect the components of knowledge and bring out their coherence, the tendency that is implicit in them. Obviously, the search for and handling of data are based on a set of hypotheses that are constructed at the same time as the research is devised. However, the elaboration of this research is situated entirely at the level of the political. But we know that the political does not possess its essence in itself.

Carl Schmitt asserts the phenomenological character of his approach. That is not our point of view. Phenomenological study is only a moment of a broader approach. The political cannot be studied as a separate level, but in relation to what founds it: the organization of the social relations of production. One cannot conceptualize the form of the State in itself, separately from its substance and its content, that is, from the mode of production, the organization of property relations and the society. To establish the concept of the modern form of the State supposes that one is producing, in the same movement, the form and its content in their interrelations. [1]

The Constitutive Role of Criminal Law

Our work, whose hidden objective is to characterize the new form of the State, unfolds essentially at the level of criminal law. This choice is explained by the privileged place occupied by the latter in the current conjuncture. Presently, criminal law plays a constitutive role. It is steadfastly dismantling the public and private freedoms guaranteed by the Constitution, and it substitutes itself for the latter by laying down the rules for transforming the whole legal system. It is, thus, the privileged element that makes it possible to interpret the transformations underway.

The current primacy of criminal law over other sectors of law indicates that we are in a phase of transition. This is not the first time that criminal law has exercised a dominant role. At the beginning of capitalism in England and on the European continent, criminal law played a decisive role in setting the proletariat to work. While the Constitution and civil law recognized the freedom of labor power to sell itself on the market, the persons concerned were not necessarily pressed to exercise this right. It was necessary to use persuasive force, the “work houses,” on the one hand, and the laws on vagrancy, on the other, in order that civil law, which regulated property rights, could operate smoothly and play its dominant role. Criminal law, exceptional in relation to the “freedom” recognized for labor power, ensured the transition toward what is called the “competitive” or “liberal” stage of capitalism.

Today, the domination of criminal law, of a criminal law of exception, shows us that we are also in a phase of transition. This law also sets up the conditions for modifying property relations, mainly the property of labor power, but also of capital, such as intellectual property rights.

The property of labor power is now reduced to an empty property, all its attributes, its particulars, are under the control of corporations and the State. The end of private life, attested to by the changes in criminal law, is part of the current organization of production, which makes all of the time and space of life an element for the development of capital.

The reduction in public freedoms due to antiterrorist legislation, as well as the dismantling of the right to strike through systematic recourse to the courts, impedes any collective reaction against the dismantling of labor law and workers’ rights. Here, the criminal law of exception reverses the essential place that labor law held during the first period of the monopoly stage of capitalism. Then, this branch of the law had a constitutive role. [2] It recognized the existence of an immediately collective labor power. Management of the balance of power required specific procedures that restructured the legal organization.

Permanent State of Exception or Dictatorship?

How do we characterize the type of power that is currently set up at the world level? Debrix is right to insist upon the importance of the concept of the permanent state of exception, as it is used in Global War on Liberty.

The state of exception, proclaimed within the context of the antiterrorist struggle, is not the momentary suspension of liberties, but the permanent, constantly renewed dismantling of them. Not only is the deepening deconstruction of the form of the rule of law permanent, but it is also a process. The state of exception allies itself with a form of organization of power that is characterized by constant transformation, by the institutionalization of a permanent political crisis, produced by power itself. While the concept of the state of exception has the merit of bringing out the process that is unfolding under our eyes, it cannot be the most adequate concept for characterizing the tendency in which this process results. Even if it is here for the long term, the state of exception is not a final form. We see that what was the exception rapidly becomes the norm.

In order to characterize this political transformation, we have to use the term “dictatorship.” Debrix considers this use a regression in relation to the knowledge developed by the concept of the permanent state of exception. He would be right if I used the concept of dictatorship simply to characterize a form of government, such as in the case of a military dictatorship. Of course, the concept of dictatorship that I used also refers to a form of political regime, although it is not limited to this aspect.

The concentration of all power in the hands of the executive characterizes quite well a form of regime or government that is normally characterized as dictatorship, but it is also the phenomenon of a more profound transformation that involves the form of the State itself. [3] Dictatorship is no longer a simple form of government linked to a specific conjuncture of class struggle. It has a structural character. It is a form of the organization of power that corresponds to a new form of the property of labor power, insofar as the latter is constantly, in the corporation but also in everyday life, under the control of capital.

Dictatorship as State-Form

The concept of this State-form has yet to be produced. This is a historically new situation that can be characterized provisionally as an organic dictatorship. It is no longer a question, as with the case of a military dictatorship, for example, of a dictatorship of the State over society, but rather of a fusion between the two terms. Two concepts developed by Carl Schmitt can be useful here, that of a “sovereign dictatorship” and, above all, that of a “total State,” each making it possible to understand a part of this process. [4]

Sovereign dictatorship is in direct relation with constitutive power. It aims at transforming the existing political order; it constitutes a transition that makes this new order possible. As for the total State, it explains the process of the interpenetration of society and State. This is a double movement. On the one hand, society takes on responsibility for affairs that formerly were the concern of public authorities alone, and, on the other hand, the State intervenes massively in private affairs.

Society is organized to become itself the State; economic and social problems become directly political. The State is no longer only a bureaucratic extension of society, a “self-organization” of society. For Schmitt, the resulting constitutional crisis can be resolved only with the appearance of a “total State,” a State capable of re-establishing its primacy over civil society. For this author, the political face of the qualitatively total political State will be incarnated in the figure of the Führer.

These works, dating from the 1930s, serve as a mirror of our era. The idea of “governance” explains this modern interpenetration between the State and society quite well, even more profoundly than during the 1930s, where private companies directly play a ruling role and the State behaves as a corporate enterprise. As for the executive power of the United States, it is carrying out the decision to re-establish the primacy of the political.

We see there, in motion, the two aspects, horizontality and verticality, borrowed from Gilles Deleuze and Felix Guattari and put forward by Debrix. We see that, even if they can be temporally irregular, these two aspects are integrated. They are two sides of the same process. The state of exception that characterizes our modernity is not mainly horizontal, it is also and, above all in the current conjuncture, vertical. It is the formation of an imperial structure in which the executive power of the United States exercises sovereign power.

The concept of imperialism does not allow us to grasp this process. That explains why we use the concept of Empire. [5]

Continue to part 2

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1. That should not be interpreted as the simple determination of the political superstructure by the economic infrastructure, as done by a reductive Marxist reading of Marx’s work. The form is active. What has been called the relative autonomy of the political is the expression of its work. With direct regard to our object, the establishment of a new form of State, the Empire, is not the simple reflection of the world organization of capital. Multinational employers cannot directly provide themselves with the State-form that closely corresponds to their needs. International organizations (horizontal), such as the IMF or the World Bank, do not form the multinational employers into a class.

2. See Antonio Negri, La forma stato. per la critica dell’economia politica della Costituzione (Milan: Feltrinelli, 1977), pp. 27-98.

3. The concept of State-form is distinguished from that of form of government or form of political regime. They correspond to different levels of abstraction. The form of government is situated at a more concrete level, the political conjuncture. The State-form has a structural character. It is the form of political organization that corresponds to a stage of development of the society. The “liberal” form of the State would correspond to the “competitive” stage of capitalism, the “interventionist” form would correspond to the “monopoly” or “imperialist” stage. A State-form can thus correspond to several forms of government: constitutional monarchy, parliamentary republic or military dictatorship. On the distinction between State-form and form of government: see Nicos Poulantzas, Political Power and Social Classes (London: Verso, 1978) and Fascism and Dictatorship: The Third International and the Problem of Fascism (London: NLB, 1974).

4. Carl Schmitt, La Dictature (Paris : Le Seuil, 1972), p. 142. Carl Schmitt, “Die Wendung zum totalen staat,” Europäiche Revue, April 1931, pp. 151-70.

5. This concept of Empire is taken up by Toni Negri in Michael Hardt and Toni Negri, Empire (Cambridge, MA: Harvard University Press, 2000). We share with him the idea that it is necessary to go beyond the classic notion of imperialism, that this concept can no longer serve to understand the current movements of capitalist society. In brief, one can no longer construct a political strategy on the basis of inter-imperialist contradictions. However, this is all that there is in common between our two approaches. In fact, Global War on Liberty is a concrete critique of Empire. What Negri puts forward is the horizontality of the process of the formation of the Empire. It is a thesis that is not supported by any concrete analysis. If one returns to the facts, one sees that the horizontal movement (which is not contested by anyone, but the concrete analysis remains to be done) is currently coupled with a vertical axis. It is the setting up of this axis that forms the specificity of the current political conjuncture, which is the re-establishment of the political in the Schmittian sense. Empire as new global State-form uses structures (the executive power of the United States . . . ) from the old form of the national State. By doing this, these structures change content, the executive power of the USA ensuring the hierarchical reproduction of the totality of multinational capital. This is not a new process. History is full of examples in which a new dominant class uses, to its advantage, structures formally related to one of the defeated social groups.

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