Critical Theory and Political Modernity [1st ed.] 978-3-030-02000-2, 978-3-030-02001-9

Table of contents :
Front Matter ....Pages i-xx
Front Matter ....Pages 1-1
The Dual Individual and Its Rights (José Maurício Domingues)....Pages 3-47
The State as Abstraction (José Maurício Domingues)....Pages 49-90
From Abstract to Concrete (José Maurício Domingues)....Pages 91-129
Front Matter ....Pages 131-131
The Political System (José Maurício Domingues)....Pages 133-167
State Power Developmental Trends (José Maurício Domingues)....Pages 169-203
The Developmental Dynamics of Citizenship and Autonomy (José Maurício Domingues)....Pages 205-227
Global Ramifications: Sovereignty and Autonomy (José Maurício Domingues)....Pages 229-252
Front Matter ....Pages 253-253
Regimes (José Maurício Domingues)....Pages 255-288
Radical Democracy (José Maurício Domingues)....Pages 289-312
Back Matter ....Pages 313-323

Citation preview

Critical Theory and Political Modernity

José Maurício Domingues

Critical Theory and Political Modernity

José Maurício Domingues Rio de Janeiro State University Rio de Janeiro, Brazil

ISBN 978-3-030-02000-2    ISBN 978-3-030-02001-9 (eBook) https://doi.org/10.1007/978-3-030-02001-9 Library of Congress Control Number: 2018960919 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2019 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover designed by Tjaša Krivec This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Contents

Introduction     xi Part I     1 1 The Dual Individual and Its Rights  3 1.1 The Split Nature of the Modern Social Fabric: Citizen and Private Agent  3 1.2 Rights and the Law  7 1.2.1 Rights as Real Abstractions  7 1.2.2 Elements of Rights 10 1.3 The Social Pact: Fable and Reality 17 1.4 Reach of Citizenship Rights 26 1.5 Rights and the Modern Imaginary 29 1.6 From Rights to Sovereignty 34 2 The State as Abstraction 49 2.1 From Law to State 49 2.2 The Rule of Law 52 2.3 The State Apparatus and the Law 58 2.3.1 The Police 60 2.3.2 Law and the Overall Bureaucratic Apparatus 62 2.4 De-personalization, De-politicization, De-substantialization 67 2.5 Towards Political Rights and Representation 71 v

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3 From Abstract to Concrete 91 3.1 Nation and People 91 3.2 Social Policy and Social Citizenship 96 3.2.1 Universalism 97 3.2.2 Rights, Entitlements and Targeting 99 3.2.3 Sectorialized Policies101 3.3 Rights and Freedom102 3.4 The Upsurge of Concreteness104 3.4.1 Neopatrimonialism105 3.4.2 Administration and the Law106 3.4.3 The Multiplication of Bureaucratic Domains107 3.4.4 The Personalization of Politics110 3.5 The Thickened Experience of Citizenship112 3.6 Developmental Processes and Trend-Concepts115 Part II   131 4 The Political System133 4.1 The State-Society Divide Beyond Individualism133 4.2 The Political System136 4.3 State and Society, Political Systems and Mediation142 4.4 Abstraction and Concreteness in Political Dynamics149 4.4.1 Liberalism and Stability149 4.4.2 Crisis and Breakdown153 5 State Power Developmental Trends169 5.1 The Double Expansion of the State169 5.2 State Power and Society171 5.2.1 The Elements of Total State Power171 5.2.2 The Strengthening of the State178 5.2.3 Concentration of Power, the State and Societal Collectivities180 5.2.4 Executive Power183 5.3 State Power: A Formalization184 5.4 Developmental Trends and Mechanisms187 5.5 Rationality and Utilitarian Expediency196

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6 The Developmental Dynamics of Citizenship and Autonomy205 6.1 Hierarchy, Inequality, Autonomy205 6.2 Autonomy and Freedom207 6.3 The Imaginary and Disembedding Mechanisms209 6.3.1 Disembedding and Autonomy209 6.3.2 Dependence and Autonomy, Domination and Freedom212 6.4 The Radicalization of Autonomy and the Reconstruction of Mediation217 7 Global Ramifications: Sovereignty and Autonomy229 7.1 Branching Out229 7.2 State Power and Scalar Constitution230 7.3 Human Rights and Autonomy236 7.4 Mechanisms at the Global Level239 7.5 Global Modernity, Domination and Emancipation242 Part III   253 8 Regimes255 8.1 Models and the Analytical Strategy255 8.2 Political Modernity and Multiple Social Trends256 8.3 The Constitution of Regimes258 8.3.1 Elements258 8.3.2 Models261 8.3.3 Legitimacy and Legitimation271 8.4 ‘Populism’?277 9 Radical Democracy289 9.1 Democracy and Plebeianism289 9.2 Reason and Creativity, Rationality and the Imaginary296 9.3 Will and Sovereignty, Constituent Power and Radical Democracy300 Index313

List of Figures

Fig. 1.1 Fig. 4.1 Fig. 5.1

The free-position State/societal political system Total state power

15 137 185

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Introduction

The political outlook of the beginning of the twenty-first century is grim. Democracy is in reversal, despite its formal global expansion. Inequalities are rampant and incessantly grow, freedom is under duress, rights are being rolled back. On the other hand, the restlessness of people, dissatisfied with this dismal situation, of forthright oppression for some and cold comfort for others, is plain to see. Liberalism, in one way or another, stands at the centre of these and of former developments that have brought us to where we are. This is my attempt to inquire into our predicament and the longings for a breakthrough that would overcome the impasses of the present. I have returned to basic concepts and searched for a long-­ term view. At a general level, I aim to define analytically the main features of modern political life—of political modernity—in its imaginary and institutional components. I thus tackle its more or less permanent sedimentations as well as its historical, developmental trends leading up to the present situation. This is a book of political sociology, with a theoretical intent, directly concerned, at the same time, with empirical issues, mobilizing a large, middle-range literature. It also strongly dialogues with other areas of the social sciences. These feature jurisprudence and political economy, along with, even more directly, political science such as canonically established since the mid-twentieth century, including some recourse to international relations theory. It is a book of critical theory yet by no means is it connected mainly to the Frankfurt School. Harking back to Marx’s original approach, it does not belong in the Marxist field either. I strive to resume the tradition of critical theory, particularly beyond its increasing liberal xi

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commitments, as the most productive approach to make its deep insights relevant for contemporary intellectual and political debates. At the same time, the book stems from a view of critical theory as open and plural, ‘ecumenical’, so to speak. Finally, regardless of its always crucial importance, it is not political economy or the ‘economy’ that features here. Political modernity, as already stated, lies at its core, analytically as well as because it is especially there that we urgently need to operate changes that may alter the power configurations of the modern world, including those that structure economic processes, dominated by gigantic global corporations and, today, especially by finance capital. I stress the differentiation of the political dimension in modernity, which assumes a specific configuration. The juridical aspect also stands out in it. This does not at all correspond, however, to unilinear and irreversible evolution according to a functionalist logic of social integration at a higher level or to the creation of s­elf-­steered systems, detached from society, except for limited and, if overburdened, problematic points of interchange or coupling.1 On the contrary, it stems from multi-linear evolution and discontinuous development (like ‘punctuated equilibrium’ in natural evolution), of which the emergence of modernity is a remarkable example, henceforth establishing specific developmental trends that belong within this civilization alone.2 In particular, I show how connections between the juridical-­political dimension and social life at large are crucial and occur. I also reject an ontological understanding of what has been called ‘the political’ since Schmitt introduced the idea and as many, curiously on the Left, have been embracing.3 This book therefore deals with this specific— political—dimension of modernity without reifying or distinguishing it from prosaic daily politics. It refuses its essentialization, in modernity and even more so before and beyond this civilization. The same would be true of the economy, of religion and of other dimensions and concepts of modernity, which do not have universal validity nor should they be contemplated as though they possessed an ontological constitution divorced from their concrete ontic features, which are manifold (political modernity including struggle and emulation, command and cooperation). Writing social science has recurrently involved the effort to elaborate the epistemological elements (i.e. the knowledge operations) underlying the research undertaken and the conceptual outcomes. This book shall do so at several stages. It resumes Marx’s strategy of ‘exposition’ in Capital, which partly shares, of course with a different epistemological standpoint, Hegel’s method in his Philosophy of Right. In short, I draw upon their analytical

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perspective, closer to Marx’s more advanced methodology than to Hegel’s, although the subject of this investigation is, conversely, directly related to the latter’s aforementioned book. Whereas Hegel’s philosophical body of work is full of methodological remarks, Marx was not expansive in his comments on his own scientific method. In any case, we are fortunate enough to have his notebooks, including the Grundrisse, with its famous yet problematic introductory reflections.4 As such the methodological elaboration intends to be a key contribution of this book. Trend-concepts, contrary to what is most common in social theory today, also stand out in the theoretical articulation of this book, which draws upon the theory of collective subjectivity developed in my former works, going beyond the limitations of individualism and collectivism. Two points must be stressed here, therefore. First, that I do not start from ‘concepts’ (Begriffe) which would have their own internal movement, contrary to Hegel’s demarche and even Marx’s in the aforementioned introductory text to the Grundrisse, with the most evolved type of society serving, at that stage, as his starting point—a strategy he changed in Capital when he chose to start analytically with the ‘cell’ of capitalist society, namely, the commodity.5 Like this later Marx, against Hegel’s metaphysical standpoint, my exposition organizes categories which can grasp the developmental processes we find in social life as such, which they strive to organize conceptually (interestingly, Parsons does something similarly post-metaphysical in relation to Kant through his conceptually totalizing ‘analytical realism’, without however trend-concepts at this stage6). The categories presented here do not ‘posit’ themselves and their further developmental trends; they are instead articulated in direct connection with their empirical objectivity, beginning with the elementary features of political modernity (which is also juridical) and a phenomenological strategy, with this whole array of issues and conceptual answers transposed to a highly general theoretical level. My goal here is not to propose a reconstruction of the ‘ethical totality’ of modernity.7 I focus on a particular aspect, an analytical dimension of modern social life, political modernity, with a sociological theoretical approach to its main categories and developmental trends, with a critical intent and within a realist epistemological framework. In a sense, the exercise carried out here differs somewhat from what former systematic analytical expositions have done. They were usually almost exclusively concerned with their own categories, although Marx in particular made recourse to textual criticism and planned a fourth volume for his

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main work, which would engage exactly with the theories of political economy. In  the present book, due to the evolution, accumulation and open dialogic mould of contemporary social sciences, this has been expanded. In a number of passages, theories crafted to deal with the issues treated in the book are therefore discussed. That said, it must be clear that its main focus is theory building, the articulation of its conceptual web, with textual analysis used at certain points as a means of theorizing. Throughout the book, mention especially to classical authors, but to the social sciences literature by and large, aims at a genealogy of the ideas that underpin the development of political modernity, as well as of its multi-layered philosophical and scientific interpretation. This unfolded within a ‘double hermeneutics’ between the latter and the thought of ordinary social agents, with variable mutual impact and never a perfect fit or mirroring.8 This is not, however, by any means intended as a historical approach proper to the evolution of juridical-­political thought, nor is it projected as the history of political modernity more generally. Since the late eighteenth century, a presence has been felt across the world, as a way of thinking and perceiving, feeling and imagining. Increasingly, it has configured an institutional reality, overwhelming indeed today. Liberalism emerged from a series of more or less disparate and more or less similar ideas and projects which, from the seventeenth century onwards, European thinkers entertained, politicians and other social agents put forward, and eventually took hold of the way ‘societies’ have been organized. It proved to be an approach to the new issues raised by European development capable of brushing aside earlier competitors, partly assimilating them, and of lending new directions and meanings to their main concepts. This is what happened vis-à-vis renewed forms of republicanism, from which especially the ideas of freedom and citizenship were taken up and modified, with the rights-form coming to the fore.9 The same is true of the unstable intellectual formation of ‘enlightened despotism’ (or ‘enlightened Absolutism’), featuring what we can call rational utilitarian expediency, whichever the goals implemented and whatever the force of emerging modern law. This would be eventually translated into executive and more generally state practicality, constitutionally moderated (with, lurking behind, a much more secretive countenance as well).10 This was definitely, as a movement, liberalism’s expansive moment, in multiple directions. Liberals were also capable of withstanding later challenges put forward by such anti-individualist modern currents like corporatism,11 at some point partly assimilating it, while fascism’s radical irrationalism and autocratic character was held at bay. Ultimately,

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socialist and communist alternatives, for the time being at any rate and in their specific ‘real socialist’ incarnations, were defeated. Or, to put the matter more historically, liberalism as a current proved itself more capable of surviving the turmoil and brutal conflicts which, starting in the nineteenth century, achieved their summit in the twentieth. At some point, it was even as though we had reached the end of history in some celebratory accounts of the liberal triumph. In fact, the imaginary and the institutions of liberalism are vigorous and have expanded unevenly across the globe. But the concrete embodiments of liberalism, historically and at present, have little to do with its idealized intellectual forms: in particular, neoliberalism, in its brutal formulations, has mostly shed such tension between project and reality. It is doubtful whether that expansive momentum can ever be recovered in its former multi-directionality. In particular, the relation of liberalism to democracy is troubled, or at least unclear, notwithstanding commitments of individual thinkers and of some currents, as well as its evolution from the nineteenth to the twentieth century. It is not that there has not been a strong relation between them, but it has been contingent and when it has obtained this has been only partly an upshot of the internal dynamics of liberalism. There are elements within liberalism, connected to the force of rights and possibly the requirement of open public debate and of popular sovereignty, that inevitably pose a challenge to the exclusion of citizens. They may be at odds with the autonomization and sealing off of the political system, formally achieved or not, and the uncontrolled strengthening of state power. Yet, those liberal elements do not by themselves lead in this direction: it is only the radicalization of the democratic elements of the modern imaginary and their combination with popular struggles that have boosted democracy. That said, democracy such as we have known it in modernity is liberal democracy, which is under huge pressure now and may be substituted by advanced forms of liberal oligarchy, which evolve accentuating some traits present in that more democratic version of liberalism at the ­institutional level. That connection has therefore become even more complicated as of lately, insofar as expansiveness seems to be totally one-sided, in contrast to its former dovetailed motion. The issue becomes trickier as a consequence of the difficulty liberalism has always had to discuss state power within its own doctrine and practical realizations, actually smoke screening its importance in really existing modernity, as though we found only a modicum of benign rational expediency in it. Whether or not it is possible to recover the democratic institutions of liberal democracy from their ­internal

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corrosion, we do need to stop at it as though it were our final evolutionary station. More radical, post-liberal (not necessarily or at least drastically anti-liberal for that) forms of democracy can certainly emerge. After analytically studying the trajectory of political modernity, this is the issue the book wants to raise. As is fitting for critical social theory, this book offers a diagnosis of the times. Liberalism after its expansive moments, state strengthening and oligarchization stand out in it. These are not auspicious trends, of course. With greater hope, the social and political autonomization of citizens is also conceptually articulated and radical democracy thematized, offering countertrends to the toughening of domination, opening up, despite the recessive moment in which we live, new vistas for social change and emancipation. In the first part of the book, I articulate the fundamental and most general categories that underpin political modernity. The state-society system, the split nature of social life and the dual individual that appears as both public citizen and private agent stand out in the analysis. But the progressive emergence of concreteness vis-­à-­vis the abstractness that configures the public-state side of that division is decisive too. History and categories are entwined in the exposition. The original juridical and political categories of modernity do not disappear, remaining at the foundations of the contemporary world, while other elements have been added to the equation. Hence the twofold character, both analytical and historical, of the theorization. I must stress that the encroachment of concreteness, in all its aspects—which we will encounter throughout as the book develops, culminating in the section about ‘populism’—is not external to liberalism, contrary to what its more or less conscious supporters and critics alike often believe; instead, it is intrinsic to it, dialectically connected, that is to say. In the first chapter of this first part of the book, I also articulate a discussion about the imaginary in Marx and Castoriadis that questions what would be, for Weber, in particular, the disenchanted character of modernity, which I deny. This can be said also of all other historical formations, including whatever postmodernity may eventually fetch. In the second part, abstract and concrete, state and society, state apparatus and individual, come to the fore in a different way. Initially, I conceptualize the political system, which rests on that split nature of modernity, and try to understand its stability, crises and breakdowns. I then analyse the enhancement of state power and the increasing concentration of power in its apparatuses. In contrast, I investigate the simultaneous increase in the autonomization of the individual. These are related and contradictory

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processes. Danger lurks in the horizon, but a potential of emancipation can also be devised. If, in the first part of the book, trend-concepts already play a very significant role vis-à-vis the dialectic of the abstract and the concrete, in the second they become even more prominent, allowing for a dynamic understanding of such processes. They are also dealt with at the global scalar dimension, always a crucial aspect of modernity that has become progressively more salient. Finally, the third part of the book deals with a few more concrete issues, stopping short of empirical analysis, though: it conceptually tackles political regimes and alternative emancipatory possibilities. Regimes are discussed in great detail and an overview of a possible future radical democracy concludes the book, with the categorial introduction of constituent power. The imaginary, creativity and rationality are once again systematically thematized, alongside the crucial modern concept of will. Modernity emerged and initially unfolded in Europe, especially in the northwest of the continent. Historians like to speak of ‘early modernity’ from the sixteenth century onwards. But this is to read history backwards and geographically hypostatize features of social processes whose direction was not pre-defined. Take the Italian and the Iberian peninsulas. Some crucial changes in the imaginary and institutions were taking place in these areas, which were eventually blocked.12 Modernity proper took off only later and in northwest Europe, which was as such being constituted at this point, eventually encompassing all the continent and the Americas. Afterwards it brought the whole globe into its orbit, with particular expressions and many sorts of combinations. Articulating all these areas differentially, modernity has developed according to three relatively coherent phases—liberal-colonial, state-based and advanced, that is, our present situation, in which complexity has increased and network, as a principle of organization, has returned with a vengeance, alongside market and hierarchy. This is a periodization that will come up at different moments in this book.13 Modernity will be, more generally, treated here as a civilization. If the expression is strong and its meaning may be contested, we can define it in a way such as to avoid misunderstandings. Other words could be used to denote the social compound the concept implies, for instance, ‘society’ or ‘social formation’. On closer inspection, it seems to me that ‘civilization’ is less nationally bound than ‘society’ and more multidimensional than ‘social formation’, the former typical of academic sociology, the latter based on a combination of ‘modes of production’ in Marxism. Civilization must be seen here—obviously without any hints at hierarchy, whether

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related to modernity or to anything else—as a more or less homogeneous or ­heterogeneous complex of imaginary and institutional elements, closely intertwined, though not necessarily altogether congruent. Some level of internal contradiction inevitably complicates its actual developments. This is exactly what we will be examining in this book from beginning to end. In sum, I am concerned in this book with the core categories of modern civilization, also in their global expression, without however analysing their hybridization with other civilizational elements. Such categories furnish the backbone of modernity and are pivotal for its proper grasp; they do not, by any means, exhaust its characterization. Recognizing this does not at all mean to condone a Euro or western-centric view of the world. Rather the opposite. If the violence and forms of domination of modernity befall us everywhere, they are accompanied by the values this civilization’s imaginary has raised and are patently central for emancipation wherever in the world. Yet, there is no reason to think that they cannot be interpreted and transformed in distinct space-time coordinates, even less that this is the last word to be said on the subject. It is up to us to create new ideas and institutions that can make us more equally free. This cannot but consist in a diverse, multifaceted and global endeavour, counting, on the other hand, on different styles of critical theory too. Many people contributed to the elaboration of this book. I must particularly thank Cesar Guimarães, the first to read these pages, and Wolfgang Knöbl, whose sociological knowledge and sharp reading have greatly benefited my thinking and writing. I thank also Jeff Manza, who received me at the sociology department of New York University in the second semester of 2017, and Paula Diehl, with whom I advanced a project connecting Brazil and Germany from 2015 to 2018. With Andreas Kalyvas I could discuss key issues in political theory, which relate directly to this book. I also benefited from Wanderley Guilherme dos Santos reading of Chap. 8. My students at IESP-UERJ have been great in responding to the discussions proposed in this book. They are part of a collective subjectivity that is objectified in this book, though I must assume most of the responsibility for its final form. I would also like to thank the anonymous reviewer from Palgrave Macmillan for the careful reading of the whole manuscript and subsequent suggestions. Mary Al-Sayed and her team at Palgrave, particularly Sarulatha Krishnamurthy, smoothly took the book through all stages in the process of getting it published, and for that I am grateful. Gladly, I could count on them all.

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Notes 1. Talcott Parsons, The System of Modern Societies (Englewood Cliffs, NJ: Prentice-Hall, 1971); Jürgen Habermas, Theorie des kommunikativen Handelns (Frankfurt am Main: Suhrkamp, [1981] 1988). 2. I discuss differentiation, evolution and history in José Maurício Domingues, Social Creativity, Collective Subjectivity and Contemporary Modernity (Basingstoke: Macmillan and New York: Saint Martin’s Press [Palgrave], 2000), chap. 4; and the constitution of dimensions in modernity, including political power, and ensuing developmental trends in Idem, Emancipation and History: The Return of Social Theory (Leiden: Brill, 2017 and Chicago: Haymarket, 2018). 3. Carl Schmitt, Der Begriff des Politischen (Berlin: Duncker & Humblot [1932] 2009); Chantall Mouffe, The Political (New York and London: Routledge, 2005). In a different, milder form, Jean Rancière, Aux Bords du politique (Paris: Folio, 2004, 2nd edition). A link between this sort of view and the differentiation of the political dimension is briefly suggested in Claude Lefort, ‘La question de la democratie’ (1983), in Essais sur le politique (Paris: Seuil, 1986). 4. Georg Wilhelm Friedrich Hegel, Grundlinien der Philosophie des Rechts (1820), in Werke, vol. 7 (Frankfurt am Main: Suhrkamp, 1986); Karl Marx, ‘Einleitung zu den “Grundrisse der Kritik der politischen Ökonomie”’ (Ökonomische Manuskripte 1857/1858), in K. Marx and Friedrich Engels, Werke, vol. 42 (Berlin: Dietz, 1983); Idem, Das Kapital. Kritik der politischen Ökonomie, especially vol. 1 (1867, 1873), in K. Marx and F. Engels, Werke, vol. 23 (Berlin: Dietz 1962). Marx would give up on the general concepts recommended as a starting point in that famous introduction, later on, including the ‘concept’ of ‘value’, instead opening his published works with the ‘most simple social form’ to be found in capitalism: the commodity. Metaphysics would however reappear with the ‘form of appearance’ (Erscheinungsform) of ‘value’ (the true ‘content’) in ‘exchange-value’. See Idem, ‘Randglossen zur Adolph Wagners “Lehrbuch der politischen Okonomie”’ (1880), in K.  Marx and F.  Engels, Werke, vol. 19 (Berlin: Dietz, 1987), pp. 368–67. For further discussion, also J. M. Domingues, ‘History, sociology, modernity’ (2016), in Emancipation and History. 5. See Hans Friedrich Fulda, ‘Hegels Dialektik als Begriffsbewegung und Darstellungsweise’, in Rolf-Peter Horstmann (ed.), Seminar. Dialektik in der Philosophie Hegels (Frankfurt am Main: Suhrkamp, 1978); Idem, ‘Zu Theoritypus der Hegelschen Rechtphilosophie’, in Dieter Heinrich and R.-P.  Horstmann (eds), Hegels Philosophie des Rechts. Die Theorie der Rechstformen und ihre Logik (Stuttgart: Klett-Cotta, 1982); Idem, ‘Die Entwicklung des Begriffs in Hegels Philosophie’, in Emil Angehrn, Hinrich Fink-Eitel, Christian Iber and Georg Lohmann (eds), Dialektischer Negativismus (Frankfurt am Main: Suhrkamp, 1992).

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6. T. Parsons, The Structure of Social Action (Nova York: The Free Press, [1937] 1966). 7. As done, in my opinion already bereft of a proper critical immanent instance, by Axel Honneth, Das Recht der Freiheit. Grundriβ einer demokratischen Sittlichkeit (Frankfurt am Main: Suhrkamp, 2013). I have to some extent tackled the general modern ethical totality in J.  M. Domingues, Modernity Reconstructed (Cardiff: University of Wales Press, 2006). 8. See Cornel West, The American Evasion of Philosophy: A Genealogy of Philosophy (Madison, WI: The Wisconsin University Press, 1989), pp. 223– 26; Amy Allen, The End of Progress: Decolonizing the Normative Foundations of Critical Theory (New York: Columbia University Press, 2017), pp. 31–32, 190ff. For the relation between social sciences and ‘lay’ knowledge, Anthony Giddens, New Rules of Sociological Method: A Positive Critique of Interpretative Sociologies (London: Hutchinson, 1976), p. 79. 9. Quentin Skinner, Liberty before Liberalism (Cambridge: Cambridge University Press, 1998); Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Oxford University Press, 1997); and, critically, Andreas Kalyvas and Ira Katznelson, Liberal Beginnings: Making a Republic for the Moderns (Cambridge: Cambridge University Press, 2008). 10. Leonard Krieger, An Essay on the Theory of Enlightened Despotism (Chicago and London: University of Chicago Press, 1975); Derek Beales, Enlightenment and Reform in Eighteenth Century Europe (London: I. B. Taurus, 2005), especially chap. 2. 11. Mihaïl Manoïlesco, Le Siècle du corporatisme. Doctrine du corporatisme integral et pur (Paris: Félix Alcan, [1934] 1936). 12. For an eloquent defence of this outlook, Richard Morse, El espejo de Próspero (Mexico: Siglo XXI, 1982). 13. J. M. Domingues, Modernity Reconstructed; Idem, ‘Modernity and modernizing moves: Latin America in comparative perspective’, Theory, Culture & Society. Annual Review, vol. 26 (2009); Idem, Global Modernity, Development, and Contemporary Civilization: Towards a Renewal of Critical Theory (New York and London: Routledge, 2012).

PART I

n

CHAPTER 1

The Dual Individual and Its Rights

1.1   The Split Nature of the Modern Social Fabric: Citizen and Private Agent In modernity we face each other as individuals with basic rights, at the core of which is freedom. Or at least we are prone to believe we are—or ought to be—individuals in possession of basic rights, in which our freedom is guaranteed. These regulate—or should do so—our fundamental relations to one another, regardless of who we are. This relationship is objectified in the form of law and appears at once as political and apolitical. Political because it depends on collective decisions, apolitical inasmuch as it is—or should be, at least originally—based on universal reason and, once established, it is—or should be—beyond the squabble between distinct standpoints and the interested intervention of social agents. This process takes place in one particular sphere, which conditions the whole of social life. Beyond it we do as we please, as rights-holding individuals and provided we respect each other as legally free individuals. Simultaneously underpinning and as a result of this legal construction, the dual individual stands at the centre of the social structuration of modernity. This implies the definition, imaginarily and institutionally, of all its characteristics through the establishment of a split order, of which it is the ostensible foundation. It cannot but exhibit a torn soul, as a divided being, immediately an individual citizen and a private individual. In the former it is defined by its abstract countenance; in the latter, concrete features establish who it is. Social reality as a whole, including its modern © The Author(s) 2019 J. M. Domingues, Critical Theory and Political Modernity, https://doi.org/10.1007/978-3-030-02001-9_1

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political dimension, hinges directly on this rift. This is a dialectical unit of contraries upon which everything else is directly dependent, notwithstanding the impossibility of deducing all the elements of modernity, even in this sole dimension, from it. Our first task here is to outline this division. Beyond its intrinsic significance, this starting point will allow us to eventually bring out the most important aspects of political modernity, with the constitution of a secluded juridical-political body. This is not a reality extant in all types of social organization. It is a pristine feature of modernity, related to how one of the main aspects of the existential social question of power is solved within its bounds, namely, with the constitution of politico-bureaucratic apparatuses partly separated from the other dimensions of social process. Politics in principle would not have a warranted place in the latter, with social life utterly depoliticized beyond that dimension, in which, furthermore, the relation between politics and law was watered down, especially at the beginning of modernity. This is not to say that power is not present across the particular social formations constitutive of modern civilization. It surely is, especially because they are strongly stratified—in classes, genders, races, ethnic groups. Other civilizations have organized the existential question of power, inevitably present in all of them, in distinct ways. These have rarely been cast as so walled off from the rest of social life and even less so have they received the designation of politics or were considered according to their own and exclusive imperatives. As it seems, this was for the first time, in what regards conceptualization, explicitly and fully suggested by Machiavelli, with naked—political—power showing its face, henceforth becoming an explicit feature of how we think of it.1 On the other hand, this was exactly what modernity tried to tame and liberalism strived to supersede through neutralized law-making, as we shall see in what follows. Individuals exist only in and through social interactions, regardless of the ideological force of the notion of the individual such as present in most modern ideologies. Social interactions can be more or less stable, lending shape to social relations which are nothing except interactive processes that unfold according to reiterated patterns, which they also reiterate (no recourse to a reified and metaphysical notion of ‘structure’ being necessary in this regard). This has been one of the essential teachings of almost all sociological schools—and of those currents of thought, such as Marxism, that were not born as part of the discipline and were eventually understood as laying the ground for its development (even though some

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authors reified ‘structures’ or social ‘facts’—and, more rarely, individuals). Yet most people in modern social formations, what is usually called ‘society’, do not see things this way. Collective belongings are unavoidable aspects of the awareness people have of social life, but the imaginary construction of individualism, the object of countless studies, weighs heavily on the cognitive frames people deploy when they look at themselves and at the social world. Marx’s The Jewish Question drove the point home very early on. Citizens (the citoyen, as he stated it, using the original French expression), as holders of political rights, and concrete individuals, who belonged to distinct classes (with a stress on the bourgeois of the then restricted electoral franchise) and religious groups (Catholics and Jews in the case at hand), furnished the twofold categories of his discussion. Capitalism had split human nature at its most intimate, creating a peculiar reality, although Marx had no inkling as to why such was the case beyond a vaguer view of it as a part of capitalist-bourgeois social structuration.2 It is worth noting that Hegel had, before Marx, tried to theoretically reconcile both dimensions, an attempt that was similarly bound to fail since it rested on an artificial, abstract process, articulated merely in thought, not in actual social life.3 In a sense, Marx turned into an analytical and critical perspective what was a normative request in liberal thought. Curiously, Marx never dealt with this issue again. He was very much attentive to how abstractions pervaded the social fabric, in tension with concreteness, above all in his analysis of the ‘commodity form’ as a ‘unit of contraries’, composed of (concrete) ‘use-value’ and (abstract) ‘exchange-­ value’. Regrettably, Marx never resumed this problematic at a political level. Dialoguing with him, Simmel noted that law, like money (and the modern intellect), is characterized by ‘indifference’ (Gleichgültichkeit) towards ‘individual properties’, abstracting from the ‘totality of life’s movement’. Then Lukács directly started off from Marx and the commodity as the basic element of the economic infrastructure, surely also bearing in mind Simmel’s insight, and worked out this idea as the fundament for all the split-up nature of social life in modernity, with its endless dualisms. Strangely, in political theory nobody picked this idea, even though Pasukanis suggested some possible lines of development in this direction in legal theory, and Poulantzas at some point threw up some not very systematic remarks on the topic.4 A risk remained, with deleterious consequences in Marxism, where perception of the issue was more acute, stemming from a sort of economism—that is, the lurking possibility that,

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once again, what was not directly economic would be causally reduced to it. The commodity was hence deemed responsible for abstractness, due to its double nature—use-value and exchange-value—and the fact that the latter had, under capitalist relations of production, the upper hand, its abstract character spilling over onto other dimensions. It is not unreasonable to ask whether this sort of response has not in a way reinforced the fetishism denounced by Marx himself, the ‘bourgeois’ stress on economic life and interests impacting even its main critical opponents. Let us take a step back. As citizens, individuals connect and influence one another as in principle beings whose specific features do not matter and should be overlooked. As private individuals, their specific interests come to the fore. Abstract and concrete individuals therefore fabricate social reality, in their twofold existence, on each side of the divide, as a contradictory but complementary unit of contraries. This is as much an imaginary as an institutional reality (and Marx’s Capital was really, in a sense above anything else, a critical study of the capitalist imaginary, with its entwined institutional moorings). As a social form, dual individuality organizes personal and collective experience in modernity, furnishing ­people the lenses through which they see themselves and frame their environment. They thereby shape and further split social processes in this sort of civilization, both in imaginary constructions and in the development of institutions, mediated by practice (or Praxis). Dual individuality organizes our experience (or Erlebnis, or vivencia, with the deeper resonances of these words in German and Spanish—as well as Portuguese), mediating between our active relation to the world and its empirical reality. Citizenship—as citizenship-form—lies at its basis, with cognitive, normative and expressive aspects, which to a large extent define our identity, at first expelling whatever was not abstract to the other side of the modern divide. It is, in turn, premised on the rights-form, which is directly linked to the dual individual and is essential to its constitution. To be sure, much escapes the spell of these forms; experience, cognition, normativity and expressiveness span a much wider spectre, in which the societal side of social life is decisively important. Yet the abstract juridical-political side of these forms has in a sense priority over all else, to the extent that what lies beyond it has as a pre-condition the basic imaginary and institutional features furnished by rights and citizenship. We surely must not take the analogy between the economy and the other dimensions of modernity too far, but in terms of an epistemological strategy and a basic conceptualization, the concept of ‘form’, with its

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Kantian resonances, is exceedingly important.5 It allows for an ­organization of experience, a phenomenological horizon, symbolic arrangements and institutional moorings.

1.2   Rights and the Law If in modernity we are thus first and foremost citizens, this implies that we are also rights-holders in the first place and that we relate to each other taking this mutual definition of rights-holders as our starting point. This ought to happen regardless of whatever else could be attributed to us—as well as to others: what matters is that we are individuals endowed with rights, our specific qualities being of no concern whatsoever. These are therefore universal—equal—rights in their absolute abstraction. It is via law that rights are defined, and it is supposed to apply to each and every one in its most general sense. We are individualized and separated as individuals through our rights and they, such as established in and by law, are what we have, first of all, in common. Rights and law are at the core of a specific, unique sort of relation between agents.6 1.2.1  Rights as Real Abstractions In the aforementioned formulation, Pasukanis pointed out the ‘juridical relation’ as the ‘cell’ of the juridical fabric, as a reiterated and formalized sort of interactive pattern whereby ‘juridical fetishism’ completes the ‘fetishism of the commodity’, with its eminently abstract character. This would mirror the commodity’s exchange-value. The ‘juridical cell’ would find expression in contract, as a ‘dynamic’ element.7 This is a notable intuition indeed; unfortunately, it is in a sense reductive. More basic juridical relations in fact appear as pivotal for the establishment of law (in terms of general and open ‘principles’ or more specific ‘rules’, even if distinctions between them may be blurred or specified by different schools of jurisprudence divergently). Above all, the legal relation, including contract, depends directly on rights, which are actually the elementary components of juridical social life in modernity (and are not restricted to private law, as Pasukanis tacitly adumbrated). Rights are therefore analytically previous to other categories. They assume an abstract juridical/legal configuration and allow not only for formal contracts between proprietors of commodities, doubtlessly a crucial aspect of modernity, but for the full range of interactions obtaining in modern societies, in both sides of the modern divide.

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Rights are moreover the core element of citizenship, such as established in a particular juridical order. We can find a few duties attached to them, basically associated to the obligation to abide by the law, in all respects (including the duty to pay taxes and die for one’s country and, in a handful of cases, to vote). Citizenship is defined, in the mix of the absence of concrete features of its individual bearers and effective causal structuring power in social reality, precisely by what we can call a real abstraction. It is an abstraction that does not stem from the mere workings of the human mind, even less so from a sheer metaphysical perspective. It appears as an abstraction due to specific socio-historical developments, leading to the specific forms abstract universals assume in modernity, which are neither the only way universality develops, nor necessarily irreversible. As real, this abstraction operates as a key element in the conformation, in terms of both the imaginary and institutionally, of social processes in modernity. We are dealing here with a social construction, which was not in principle intended by anyone. Rather it emerged from contingent historical developments and reiterated processes that are focal to the emergence of modern civilization.8 Even the existence of the commodity, including labour power as a commodity that can be freely bought and sold, is dependent upon the workings of citizenship as a real abstraction.9 Otherwise proprietors could not freely buy and sell their properties, over which they must have independent control and unimpeded command, so as to bring them to the market and enact contracts related to their appropriation and alienation. It is not the commodity that reigns categorially in this regard. Instead, citizenship is pivotal, as a feature without which, logically as well as practically, there could be no owners of commodities, especially on the scale we encounter in modernity. This has nothing to do with historical origins, nor with a one-sided definition of social process, including its causal influences. It derives from the weight such elements have in the shaping of daily and long-term social life. This is what is being categorially reproduced here. Citizenship rights as civil rights guarantee, as argued by Marshall, a basic status, the most fundamental in fact, common to all individuals, at least ideally: they evince an almost apodictic universality in modernity (i.e. either they are universal or simply do not qualify as—civil—rights).10 They underlie the establishment of modern society and its maintenance as such—even though historically and institutionally they may fall short of embracing the whole population of a country. Further developments of rights, in theoretical and historical terms, soon took place, including

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­ olitical, and then social rights and, eventually, a full range of other rights, p more diffuse than the former, focused directly on individual bearers. We shall examine those limitations and other rights later. While those limitations do not detract from the centrality of civil rights in modernity, the further array of aspects of citizenship did not on the other hand supersede the pivotal position of the civil component of rights as the source of the very definition of the modern, dual individual, with its state and societal, public and private, double character. Without civil rights, nothing else is possible. If they are not universalized, a deep contradiction and tension comes up, with dynamic, teleological aspects, since they loom as a goal. Conversely, other rights are at least partly derivative, and also stem from the tensions and contradictions entailed by the very existence of civil rights, whether they are fully respected or not. The central position of civil rights analytically as well as  historically must be properly understood. They are fundamental to the structuration of law and social life; hence, they furnish a key category for the definition of the modern society/state system, but are also historically prior to the other elements of citizenship. It is in this double condition—analytical and historical—that it features here and will be further developed in later sections of this book. This is, however, specific to the problems at hand, not a general feature of categories or categorial expositions. Often historical and systematic analytical developments do not coalesce. With this in mind, we can deepen the analysis of citizenship rights, initially further expanding on civil rights. Citizenship rests upon fundamental (usually constitutional) law and rights. Civil rights are mainly connected to the formal definition of the establishment and recognition of the freedom of each individual, his/her zone of immunity in relation to others, which is closely connected moreover to the attribution of a fundamental dignity to the modern individual in some part thanks to its rational character, in principle shared by everyone (actual qualifications notwithstanding).11 Only then, and derivatively, are they protected by the body of ordinary law (infra-constitutional when socalled rigid constitutions are extant), which formally establishes the extent to which our freedom can be socially organized, vis-à-vis other individuals. In other words, civil citizenship as law is foremost concerned with conferring power on individuals to interact with other individuals as they please, in a reciprocal relationship. As Kant put it, in law, ‘ends’ are freely chosen by everyone, respecting the freedom of others. The corresponding ‘maxim’ for action is that this must happen without the individual impinging on the

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freedom of others. That is to say, ‘will’ must limit ‘will’ as well as each must affirm itself as free. Law can thus dictate, to some extent, what we can and cannot do.12 Civil rights are not merely moral rights, although what is in any situation conceived as a moral right may offer occasion for a new legal definition, a reinterpretation or an inflection of rights.13 They must be defined in juridical terms, that is, they must find a ‘positive’ configuration, acquire legal articulation, in the bounds of a specific, particular social formation, beyond general ‘human rights’.14 Human rights, globally understood, today a system of values and norms that raises many issues, in any case more palpably now than during the American and the French Revolutions, unmistakably presses the issue home. Enforcing them internationally has always begged the question of the actual legal conformation of those rights and of who could concretely uphold them. They still fall short of the facticity, whatever their moral underpinnings, of citizenship rights. Furthermore, in actual practice, citizens were until the twentieth century male individuals, the only human beings who fully enjoyed civil liberties, something that since then has undergone far-reaching changes. This is true especially of the West, applying also to other regions, many issues, in too many places, lingering on and limiting the reach of rights and citizenship, including shortcomings at the western core of global political modernity. 1.2.2  Elements of Rights In what follows, we will deal with rights such as institutionalized, trying to make out exactly what this means. Their institutionalization restricts the free-floating character which, beyond positivization, they evince, notwithstanding the fact that different readings and proposals to understand them regularly emerge. Later on, we will tackle their meaning in the imaginary dimension overall, so as to bring out their more general impact in modernity. Rights, as formally defined and as the analytical building-blocks of political modernity, will thus be the object of the following analysis, through their disaggregation into more elementary components, proceeding further in the decomposition of social reality we have started above. The point is not to arrive at a ‘deontology’ or to ‘jural’ definitions, but rather, to establish a general analytical framework with which we can grasp the main features of modern rights and citizenship.

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Surely, legal/juridical relations are not established only between individuals: collectivities (firms, for instance) do enter contracts and have other juridical relations.15 Yet, the basic relations in modernity have been imaginarily—and practically, as suits a real abstraction—ascribed to individuals. It is the elementary components of these rights that will be analysed now. I will resume a line of reasoning often present in juridical thought, which we can productively mobilize here. It is analytically useful to focus on rights through the dyadic form of social interaction between individuals who conceive of each other as independent, whichever their concrete relations may be and however the latter connects them socially. Sociological inspiration rather than a mimetic attitude to juridical approaches is what I intend with this theoretical move. That said, I shall freely draw upon the analytical distinctions famously crafted by Hohfeld. He proposed four pairs to organize jural relations: right-duty, no-right-­ privilege, power-liability and disability-immunity. His arguments are not deprived of ambiguity, as further debate featuring innumerable authors has made clear.16 A relational analysis is thus at stake. The ‘positions’ to be defined below are such only insofar as they are formalized via law.17 They retain a dynamic character in their fundamental ontology, which is neither structural nor static. We are dealing with interactions, and any reification of rights must be eschewed. They underpin processual social relations, in which ­mediation is legally established and formally defines how much power each citizen may enjoy vis-à-vis one another. This is possible if there emerge ‘institutionally defined rules’ specifying ‘what people can do in relation to one another’, enabling or constraining behaviour.18 In principle, regarding modern fundamental citizenship rights, we all enjoy the same power in our relationships. Take someone who is an agent, A, in relation to someone else, B. What matters to A is its action, developed in order that some sort of goal (more or less consciously devised) is achieved (with greater or lesser systematicity and efficiency). The individual with whom A interacts, B, is in this case passive, to the extent that to A it is its action and goal that matters, whereas B is expected to behave or abstain from behaving in ways that merely further A’s goals. Of course, B has its goals too and acts in order to achieve them relating to A with the expectation that A will behave or abstain from behaving in ways that merely further B’s goals, even when A and B are entangled in a venture in which they must collaborate. That says nothing about how A conceives of B and vice versa—in mere instrumental terms or

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as someone who is morally of the same worth. What interests us here is how citizenship furnishes—and is constituted by—the legal parameters of how the interaction between A and B may unfold, from the point of view of each of them. When we say that A has a right it is meant that A has a right to something, which is at the same time a right not to something—negative— which contradicts that ‘to’.19 Possibilities dovetail. First, A has within its reach the legal permission to do—or not do—something to reach a goal— which may mean changing things in the world or maintaining them as they are. A may then expect that B will not prevent A from doing—or not doing—so. Basically, permission in this case does not even need to be legally mentioned; it is enough that such courses of action are not prohibited. Second, A can claim something from B, to which A can expect B to be committed to answering positively, which may be simply that B does not interfere with A’s action—or non-action. To be sure, there are limits to the expectations of A in relation to B and vice versa. While A has its goals, it is within the bounds of its rights that it may act, without impinging on B’s rights. These are the bounds within which freedom of action is warranted, configuring  a perimeter of permissibility. This is established through privileges and immunities which underlie the powers and claims individuals may exert and raise in relation to one another, as well as the duty, according to the law, they are expected to fulfil in their relations, including refraining from interfering with other agents’ rights, that is, freedom. Nothing of this could be even contemplated were it not for the responsibility that can be and is attributed to A and B as agents. Let us further elaborate upon these elements. Privilege refers to what A is allowed to do—with itself and with other objects in the world, whichever they are. Immunity refers to the limits A can put to B doing the same thing, that is, B exercises its privileges but is prevented by A from trespassing A’s privileges. Power here is A’s agency legal capacity, which is defined by the privileges and immunities it has at its disposal, with which B cannot interfere. Altogether, this bundle of elements comprises what may be categorized as a free-position, which is as such legally defined and protected. That is, A is free to do what and as it pleases, but this ‘what’ or ‘as’ is not mandatory: A is not forced to do it, in whatever way, since it is circumscribed by a zone of immunity of which it is the right-holder. This ‘what’ or ‘as’ does not configure a duty. Claim is a demand A can raise to B, because A is entitled to some object in the social world over which B has some sort of influence, including A’s

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i­mmunity vis-à-vis B’s interference, which then guarantees A’s privilege. In a slightly different and more synthetic fashion, we can say that a claim is what underlies A’s power within the bounds of rights, insofar as it supports A’s privileges through A’s immunities. The same is true if we invert the relationship and B is placed first, in the active position, with A occupying the passive position in the formula. A must respect B’s privileges and immunities as well as respond to B’s claim, meaning that A has a duty towards B.  Finally, in order to be taken as someone entitled to rights, A must be seen as someone whose responsibility for its deeds makes it capable of harvesting and assimilating whichever sort of outcome, that is, A is capable of defining ends and means to achieve them, but is also liable to negative sanctions by B if it oversteps the bounds of its privileges and immunities. In modern thought, rationality unpins A’s capacity to behave responsibly in relation to B, and B’s behaviour in relation to A (irrespective of how more complex the definitions of the agent’s consciousness and rationality as well as actual behaviour have turned to be seen during the last century).20 The free-position is a condition which A and B in principle, as rights-­ holders, hence citizens, want, or may want, to preserve (which they are not ever allowed to totally abandon, except if and while they are punished for infringing the law, when some restrictions to freedom and citizenship apply). In this free-position, A and B can legally do whatever they fancy, howsoever they decide to, provided there is no specific interdiction. They have therefore immunities and privileges regarding their behaviour, except when the law has provisions blocking specific courses of action. In a distinct sort of language, this appears as that which is ‘relevant’ (legally regulated) or ‘indifferent’ to law.21 In any case, it is forbidden, in the name of human dignity, to turn citizens, that is, rights-holders, into subjected persons, either through public or private action: they must remain free even if they wish to relinquish their freedom. If A can treat B neutrally according to law, universal moral worth and freedom claims imply that, once A and B are recognized as human agents, they cannot be fully turned into objects and treated merely instrumentally. Is possession or formal property according to the law, hence the possibility of acting freely in relation to such objects, included in the free-­ position, from which A and B can derive claims to objects in the world? Is the right of A and B over things, objects in the world, of whatever sort and in whatever scale, comprised therein? Or should we consider the right to property an independent one? Does this condition include A’s and B’s

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right to security, above all the preservation of their life? Or does this represent a different claim of A in relation to B, and vice versa, in terms of immunities and privileges? In the realm of deontology or of some similar logical operation different exercises can be made which would perhaps yield unlike outcomes. This is not what we are looking for here, though. Empirically, the answer must be considered variable, depending on how thinkers and legislators have decided to phrase the issue in each concrete instance of the definition of fundamental rights, due to currents of thought and social struggles. Different conceptual lineages converged to produce this amalgam of property, life and freedom, which is not an innocent one, especially because the first element has usually had precedence. We shall here overlook the detailed variations and concrete historical developments this amalgam underwent, since our purpose is to reconstruct analytically the configuration of modern rights, not to write their history. Suffice it to note that basic freedoms, the right to preserve one’s own life and the right to property have been of the essence of civil rights historically considered (whether or not a formal, ‘rigid’ Constitution is extant).22 Free individuals do not precede their rights as if these were merely elements added to them. This would be a traditional individualist perspective and is, at this stage in history, utterly implausible, notwithstanding the attempts of a few authors to reproduce it.23 It might be argued that individuals as rights-holders are, on the contrary, derived from this free-­ position and its elements. This would be close to a structuralist view. It would however amount to assuming a more concrete agent with predicates which emanate from something that is prior to it. Instead we must push further the analytical demarche in order to adequately understand modern legal subjectivity. Individual agents are legally constituted. They are not prior to their legal status. It is not because A and B are individuals that they hold rights. The opposite is true: A and B are legally defined individual agents because they are rights-holders. Their subjective position on this side of the modern divide is established by the crystallization of rights—regardless of how we think this has come about. It is only because rights pertain to A and B that they are agents in this abstract realm, able to move from their juridically recognized free-position, which is, lest one raise the hypothesis, not structurally given either. The free-position implies an interactive process in which individuals and their legal rights are co-­ constituted, though we are working here at a very abstract level. It is their mutual conditioning what matters ontologically. Epistemologically, there-

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fore, neither individualism (even if supposedly only methodologically defined) nor reified collectivism (structuralism) can be sustained. Symmetry and convertibility—horizontality—are moreover key properties of fundamental rights, in this regard implying exactly that evenness of power enjoyed by each and every one, in this formal domain, evidently. There is, in this regard, an absolute and a priori equivalence between individuals, another defining formal feature of modern subjectivity, which is paramount for its demarcation. A’s positions in terms of privileges and immunities, which can then underpin powers and claims, are duties for B; conversely, duties to A are defined by B’s privileges and immunities, hence B’s possible powers and claims. Individuals can claim the same rights and exert the same power vis-à-vis other individuals insofar as they are placed in a free-position vis-à-vis each other. This is part and parcel of the imaginary and institutional establishment in modernity of the idea of equal freedom, that is, the idea according to which all individuals, regardless of their concrete qualities, are taken as possessing the same privileges, immunities and powers. They are symmetrically distributed. B furnishes for A a mirror-­ position in which A identifies itself as a rights-holder and a citizen, which can be reversed, A furnishing B a complementary mirror where B identifies itself as a rights-holder and a citizen. For this to be possible, A and B must be seen as responsible agents, capable of answering, morally and legally, for their deeds. Figure 1.1 synthesizes these distinctions: A-B (Responsibility) Privileges

Powers

Immunities

Claims Symmetry-Convertibility

Fig. 1.1  The free-position

Duty

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We must at this stage resume the thesis that the interaction between individuals as rights-holders is always mediated by a third part, for rights are immediately defined in basic juridical terms, the elements of which we have analytically laid out above: this is the legal system, with its universal equivalence between all individual members of society. It is as if the power of a person over another, in an atomistic social configuration—one that imagines itself so—was transposed directly to an independent and objective, autonomous and impartial, ‘norm’ (as Pasukanis had already suggested, although always stating capitalism’s causal priority24). Thus, norms rule in modern legal systems, offering patterns for behaviour that are intended to be absolutely impersonal and even imply a horizontal (symmetrical and convertible) relationship between rights-holders. Law as a medium—a neutral one, for that matter—is therefore where and through which general equivalence is achieved, securing rights, with their privileges and immunities, powers and claims. Law appears as an objectification of rights (and duties, to a lesser extent), which has anchors in the ordinary conceptions of ordinary people. Thereby, the law creates identities for A and B. This identity may be more or less apparent for the agents, it may be more rationally (systematically) built or remain at a more practical level, therefore being less unambiguously formulated. A specific aspect of Hohfeld’s view must be critically addressed now. The distinction between ‘real rights’ (rights in rem) and ‘personal rights’ (rights in personam) stands out in his analysis, as it does in much of western legal reasoning. The former relates to property and is considered absolute. Every other agent, say B, has an obligation not to interfere in any way with an agent’s, say A’s, right over anything material, and its total freedom of action over the thing it owns. In their absoluteness, real rights need no person other than the owner to be ascertained, Hohfeld thought, resuming a long philosophical-juridical tradition. Personal rights, on the contrary, are established—the reasoning goes—between people, that is, A and B. Such rights imply obligations, for instance, in cases of debt or marriage, and are multiple. Contracts are therefore necessary to work them out. The idea of property as a ‘bundle of rights’ (or ‘sticks’), with some degree of heterogeneity, has partly derived from Hohfeld’s analytical theorization, and with social changes behind its emergence. This view has developed basically only within the United States’ common law tradition and, thus far, has meant predominantly the restatement of former notions of private property, though other openings are certainly possible in this regard. The older, absolute and things-related notion of private property referred

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­ redominantly to physical things, real state. Industrial and more intangip ble things have become much more important as modern society progresses.25 Rights, to reaffirm the point made above, are however always formalized relations between agents—mainly, or starting with, individuals in the western tradition. The distinction between real and personal rights, doubtlessly important in modern juridical life, is therefore theoretically wanting and misleading. Real rights are also personal rights. They define relations between people and—not primarily, only secondarily—between people and things, including and excluding agents in and from property relations. In this regard, it is even as a result of this entanglement between materiality and personhood that workers are able to sell their labour power—the only thing they own—to buyers in the capitalist market. There are no individual owners of anything, except insofar as they include different sorts of relations with other agents.26

1.3   The Social Pact: Fable and Reality If the dual individual is the basic element around which social processes, and the perception thereof, are shaped, providing the underpinnings for much of the structuration of social processes, diverse, more or less scientific, social theories often systematize what turns up in this powerful and productive, symbolically organized immediate experience of all of us who live in modern societies. This is not exactly because ideas influence social life, although they do. It happens mainly because social interactions and relations are shaped in ways that generate this sort of frame of mind, based on that duality and individualism, making it plausible and leading to formulations that then re-elaborate such experience (perceptions, representations, emotions, practices) in a systematic way. From debates carried out in clubs, saloons and cafes, clandestine meetings and academic conferences, pamphlets, internet postings, articles, books and the like, such ideas reenter social life and influence ordinary agents, having been to a large extent born directly in their midst, from their experience and through their action and movement. As limited as such a cognitive, normative and expressive framework is, it has extensive social currency in modernity. Yet, social interaction and social relations are the scaffoldings whereupon the operations of individuals and the individualism of operations rests, in the realm of perceptions and ideas as well as in the concrete doings and deeds of social life. How does this take place, how does individualism and dualism

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become—especially and above all in the former’s abstract definition and its reproduction on a daily basis—such as a pivotal element of modern social process? We could now dive into large social and historical processes. This will be reserved for discussions which would be premature to introduce at this stage. Let us stick to the specific configuration of rights, citizenship and the law for the moment. The most powerful initial conceptual formulation underpinning these elements of the modern imaginary was the idea of a social pact or contract, in which they acquired general legal meaning. Somehow this refracted an emerging reality, offering the solution for a demand which was growing from the experiences shared by many people in the new ‘European’ civilizational condition, pointing to the emergence of political modernity, a new organization of power and the freedom of the individual. It also entailed an idealized construction, on which so many Enlightenment and proto-utilitarian philosophers were happy and adamant to stake their juridical-political visions and claims. With the decline of the authority of the Church, it held for a long while, and to some extent still holds, centre-stage in the modern imaginary. This has been the primordial way through which political power, this invention of modernity, has ever since been possibly framed as a social construction, in contrast to something supposedly divinely ordained. It has open room for its plasticity, that is, for its understanding as amenable to change, as a free human creation. Theories of the ‘social contract’ between individuals were a common thread running through philosophical theories from Hobbes and Spinoza through Locke to Rousseau and other modern natural law, Enlightenment and proto-utilitarian writers, with more or less subtle differences between them, basically implying social association as a rational expedient to guarantee mutual social benefits. It was a sort of fable that told of the origins of society or a hypothesis about how things would be in the absence of socially regulative law and political rule, while natural law, usually its foundational element, underwent changes and rested now on subjective ­ individual rights, in contradistinction to its more objective mediaeval versions, assuming, in the context of emerging modernity, a truly revolutionary character, with, since Hobbes’, rights having priority over law and obligation.27 The social contract was supposed to create or characterize a ‘Commonwealth’, a ‘society’ or a ‘social compact’, with its specific (emergent) qualities, derived from the will and decision of individuals, which should then henceforth all move in the same direction, with a common will,

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as public persons endowed with formalized rights, and for the sake of collective well-being (or at least preventing mutual harm). These individuals were somehow morally and legally committed to this new entity once they entered the contract, whether they were allowed to break it or not, and regardless of the circumstances in which that might be permitted (as well as of whether natural law remained in being, an unusual position, or was fully superseded). With this contract, they created an external juridical-­ political power and consented to be ruled, notwithstanding the variation of the nature of that power and of its rule from author to author. Hobbes proposed classical solutions for this problem. Initially, through a ‘promise’, individuals absolutely and permanently alienate their will, grounded in the necessity of maintaining security and order as well as out of fear of each other. Eventually the Leviathan would appear as acting for those who had transferred such power to it. They were unified by this emergent, sui generis entity. More liberal or republican views did not take lightly the existence of a superior independent power and frequently tried to limit it via law and the permanent control of citizens, as in Locke, or with Rousseau accepting some of Hobbes’ premises and thinking of citizens as themselves the absolute ruler and a compact body, which gives each one the law and institutes freedom. Note also that Locke’s (and before him Pufendorf’s) two-stage constitution of the social pact—first political society than the form of government—precluded that unity was considered as emerging through delegation to a superior power, contrary to Hobbes’ final and quite authoritarian solution.28 From the beginning, the social pact or contract has been taken as the basis for the creation of the two figures of the individual citizen and the private individual—one oriented towards public life, the other to private recesses, both rights-holders in the unity of contraries that such a split being evinces. This is an imaginary creation and at this point could be taken, as such, as corresponding to nothing beyond this. As it happens, despite the strong fanciful component ingrained in it, the idea of a social pact contains more than a grain of truth; this is rather different, however, from what is declared in those philosophical treatises. It is moreover curious that exactly this capacity to think of law as deriving from a general social pact in which individuals hold original power and are empowered, inasmuch as they are conferred power as citizens, for a good while tended to disappear from the dominant expressions of legal thought. This happened already at the end of the eighteenth century and carried on afterwards. Once it was proclaimed loudly and strongly that the idea of a social

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contract should involve the majority of the population, on equal terms and through political mobilization, natural rights and the social contract were increasingly rejected by what came to constitute positivism as a main current in jurisprudence. They were substituted by a view that puts a stress on hierarchical, vertical power rather than on citizens, citizenship rights and liberty. They were thereby at least downplayed as the source of law. It took a long time for the human rights doctrine, not necessarily democratic, to revive. This happened after World War II and with special impulse since the 1980s–1990s, as we will see, in due course. This somehow implies popular or citizen sovereignty, which we will engage towards the end of this chapter. Needless to say, today it would be absurd to think of public life as deriving from a pact enacted by free individuals, whether they entered it starting from the state of nature to generate a situation of personal freedom and escape the fate of a ‘brutish, short and nasty’ life or did so as free individuals also emerging from a state of nature with the intent to preserve that original liberty, as well as with an interest in keeping their life and property (or whatever more eccentric perspective we think of). Former power apparatuses and social life by and large pre-exist any sort of pact. Once these simple facts are faced, it becomes hard to imagine a contract as emanating from an encounter—even if that worked as a rhetorical device in those philosophical approaches—in which atomized individuals agreed to a fundamental set of principles and rules defining rights and duties. That there is a social contract or agreement in some sense is on the other hand true. Constitutions are basic social pacts between individuals that weave the social fabric in any given ‘society’, establishing fundamental rights and duties. It does not matter if they are as such declared or not, are expressed in formal documents, as it is often the case in modernity, or are customarily accepted, hence whether we can really call them constitutions or a looser idea is to be embraced when we talk  about this overall legal framework. If they are not specific contracts, they figure as the backdrop of that pact and, as legal documents or general, implicit conceptions that embody more general agreements. There is no imaginary construction that is not based on some sort of adequacy to social reality, even if this requires many mediations. In this case, it is the way people overall—as individuals and as part and parcel of collectivities—have conceived of justice and peace—alongside that sort of legal formalization—that has lent plausibility to the idea of a social contract. It can thus be seen as a contract or agreement voluntarily entered upon, creating a collaborative network of citizens

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and offering a framework that warrants the operations of a sort of power that hovers above them. This happens insofar as, albeit not really like a mere emanation of atomized, free or even almost desperate, individuals, they can recognize themselves as part of some sort of more or less broadly established consensus that legitimizes the most general arrangements under which they live. At least since stronger liberal utilitarian conceptions were introduced, the focus has however changed. Although individualism remained the object of normative praise, the state—as that specific, emergent power has been usually called—has substituted for the active individual disposition and volition as the actual creator of rights, whose action would have led to the establishment of a social pact in former, natural rights-laden accounts. We observe this plainly in the formulations put forward by Austin. It was tributary of Hobbes’ and Bentham’s view of ‘command’. This was primarily exercised by an unimpeded sovereign will, standing above individuals, from the top down. It stemmed also from Bentham’s despise of human rights, which he mocked and rejected, dismissing them along with the idea of an original contract, though he clung to the will theory which was so decisive for this current, attributing it to the state, in which he was followed by Austin. Law came to be defined by Austin as something laid down by ‘political superiors’, who hold ‘power’, to ‘politically inferiors’, who are obliged to it (whatever the authoritarian reformist aims of his utilitarian canon). Command, as the capacity to make ‘evil’ fall upon those who disobey it, came to occupy centre-stage in his view.29 Even in Hobbes’ harsh formulation, rights belonged to individuals and the law derived from their original decision to enter a social contract, regardless of how much ordinary law-making would afterwards be distant from the reach of the ‘multitude’. Once rights were regarded as a creation and handout of ‘political superiors’, the relation was inverted: they were now handed down from above and their universal, absolute foundations and natural sources could be simply discarded.30 Against the revolutionary, emancipatory elements of modern law, positivism therefore emerged, to a very large extent, as knowledge of law as a means of ordering social life from the top down.31 This was congenial to the authoritarian reformism of Benthamite utilitarianism. It is true that perhaps in continental Europe that emancipatory natural law tradition held greater sway, while across the channel, a more down-to-earth and customary view of legal issues consisted in a stronger tradition. But the ‘rights’ of ‘free born Englishmen’ held their own revolutionary promise,

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even if they looked back to history.32 Hobbes, with his peculiar recourse to natural law, was keen to turn those emancipatory into their contrary, whereby individuals became objects of domination by the Leviathan, with Locke lending them a new lease of life within natural rights theory. Utilitarianism took Hobbes further, discarding natural rights and stressing law as mere command, yet maintaining rational expediency, that is, their utility, as the justification for rights. Radicalizing positivism, Kelsen’s position to some extent resumed, with greater subtlety, this sort of perspective, pace, paradoxically, his democratic and even socialist (social-democratic) commitments. For him, the ‘legal subject’ and (‘subjective’) rights are created by the juridical order (law), but this is—with its objective ‘basic norm’ and the commands derived from it—ultimately a creation of a contingent collective will. Custom or a constituent process underpins it. Thereby he radicalized his search to avoid facts invading the sphere of norms and continued to supposedly refuse the anthromorphization of legal agents, including individuals, not to mention collectivities (e.g. the state). He putatively abandoned therefore a will theory. Whether he did escape the natural law conception of natural agents is however doubtful beyond the declaratory stage and the further abstraction and reification of legal agents. Regarding the legal order, alongside ‘commanding’ (gebieten), he speaks of ‘authorizing/empowering’ (ermächtigen) and ‘permitting’ (erlauben), though all related to ‘ought’ (sollen), a key feature of law, alongside its actual application. He was  obsessed with ‘legal obligation’ or ‘duty’ (Pflicht), from which rights, as ‘reflex rights’, stem. Actually, he was concerned with ordinary legal rights derived from contracts and penal law. This led him to rather convoluted reasonings, in which, curiously, sanctions and obligation always furnish the starting point, not rights. Fundamental rights had a different stand in his view, they were contingent as well as somewhat vague and underplayed in his theory (issues to which I shall come back below).33 If positivism was the main doctrine to adopt command as central for its reasoning, it was not the only one: we find anti-positivist views of ‘command’ (Befehl) which stress ‘will’ as a property of law in political terms (in contradistinction to law as norm), for instance, in Schmitt, at the antipodes of Kelsen’s approach and much closer to the Hobbesian tradition.34 Other versions have been softer in this regard, trying to combine political power and rights more harmoniously, though not necessarily democratically. Jellinek, in particular, sociologically pointed to the socially and historically embedded character of law, stressing the manifold ‘status’ of

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the citizen and its connections to rights. Yet, for him, ‘public law’ (öffentliche Recht) was also the source of ‘private law’ (private subjektive Recht), via the mediation of subjective public law (öffentliche subjektive Recht) (a rather typical German distinction). The state played a key role is his argument, including its power in terms of ‘imperium’ and ‘domination’ (Herrschaft). Once again, capacity to command (befehlen), which the individual cannot by any means evade, came to the fore.35 It was only more recently, with the further democratization of liberalism in the second half of the twentieth century and even the defeat of real socialism, that such liberal authors, deeply concerned with values, as Dworkin, Alexy and Ferrajoli reinstated the primacy of individual ‘fundamental’ rights. In this case, we can hardly speak of a metaphysical natural rights perspective and even the ultimate compatibility of this sort of view with softened legal positivism cannot be discarded, as Bobbio’s stand indicates.36 Thereby original modern views are recovered, constitutional documents recognized, the actual, albeit often limited, experience of individuals drawn upon, and our core imaginary perspectives reasserted, whereas we must bear in mind that institutionalization, in this case effectively legal positivization of rights, is indeed contingent. While, to a large extent, albeit not exclusively, that literature regards rights from a normative angle, the entry point here is decidedly analytical; normativity, on the other hand, is recognized as part of the imaginary and of its institutionalization. The central function of rights is also what allows, first and foremost, contract law as such to be an instrument that ‘facilitates’ action (rather than hindering it). Thereby people, in their free-position, can buy and sell, marry, settle wills, among other legally defined agreements, such as pointed out by Hart, in a sort of also softer positivism. We should be able to distinguish between rules ‘imposing duties’ and those that ‘confer legal powers’, he argued. If law consists of prescriptions about commands or similar concepts (in the imperative mode), this is by no means as broad and exclusive as many have suggested, on the contrary.37 Not only in its fundaments is law therefore formally established to guarantee freedom, in more prosaic aspects it is largely about permissions and attributions of competence, as Kelsen affirmed, contrary however to his strong emphasis on duty, sanctions and law’s coercive aspect, as against ‘delicts’ (‘wrongs’), which are as such a ‘condition’ of its own existence and its guarantor (consisting in the very crux of his definition of what law is).38 To this we could add an infinite number of relationships that are not legally formalized, but

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which are framed taking into account and guaranteeing the freedom of each individual agent according to citizenship rights, to start with in what regards its fundamental (including constitutional) expressions. Either way, our effort here is to produce an adequate view of de-reified rights. This means, of course, that a metaphysical natural rights theory, more or less objective or subjective, is unsustainable. Contingency is part and parcel of the creation and positivization of law. Nevertheless, recognizing the need to de-reify rights does not detract from the abstract and absolute way they appear in our imaginary and are institutionalized, nor from how people experience them, more fully or in the face of the disrespect of their actual observance. There is no reason either to accept the reifications of positivism and its attempt of excising subjectivity from law—turning it for instance into mere ‘relations between legal norms’ and of these with ‘facts’ or ‘behaviour’, with subjective rights utterly collapsed into objective law and legal order, as Kelsen endeavoured to do.39 In addition, there is surely no reason to embrace the idea that rights are simply crafted by ‘political superiors’ and distributed from above to individuals below, as Austin put it, though political power will have to be systematically dealt with in due course. Rights must be seen as legally mediated relations, historically and socially embedded, imaginarily projected as a horizon and institutionally defined. A complex interplay is at stake, since how social agents understand themselves as bearers of rights is crucial for any legal definition, without detriment to how power is structured and plays out. Neither metaphysics, nor casual contingency or the cult of asymmetrical relations should entice our understanding. An analytical perspective must be attentive to this complexity without falling into those pitfalls. It is in the interactive processes and our mutual recognition as rights-­ holders that this must be localized, as Honneth once correctly observed. Habermas, in what refers to rights as stemming from intersubjective relations, did not miss the mark either. Conversely, both Habermas and Honneth neglected the reality of power, as we shall see later on, and downplayed the societal side, with its concreteness, in their formulations, another issue in need of further elaboration.40 At this point, this alternative conceptual path must, in particular, be connected to our ongoing analytical construction in order that we complete our task. Kelsen’s definition of a ‘subjective right’ as merely a ‘reflex right’ can serve as an adequate, albeit problematic, starting point for this, now framed in terms of fundamental, general rights, contrary to his own demarche, since these are

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no ‘reflex rights’ for him. Placed at that lower level, ‘subjective rights’ are, for Kelsen, no pristine reality, deriving instead from a ‘legal obligation’ (‘duty’) agent B has in relation to agent A, according to and via the mediation of law.41 With the initial proviso that I am grappling with rights at a different, higher level, and moving downwards, I shall partly accept Kelsen’s point, taking it in a very different direction as I develop my argument. Rights are in a sense, in general and regarding all issues and agents, reflex rights in which all citizens recognize in each other a rights-holder, in a universal mirror. This is not because they stem from obligation or duty, though. The latter is as such derived from the rights thus established. It offers the most abstract element of what may be called the ‘generalized other’ in interactive processes, comprising the total sum and integrated whole of our relationships with each other, one that allows for all others in their free mutual positioning.42 A main source of law is our relationships to each other, how we socially regard each other vis-à-vis the law. Hence, both as regards equal, fundamental rights and more generally, A has a right that is derived from B’s recognition of A’s free-position, whereas B has a duty to respect A’s position due to the same reason and must uphold A’s right.43 If we invert things and B is taken as the active agent with A as the passive pole, which now furnishes a mirror-position for B, formerly occupied by A, the situation is reiterated: A has a duty and must uphold B’s right. Theirs is a reflex right since it is not simply derived from a universal characteristic of these individual exemplars of the human species; instead, it originates in their mutual relations. Beyond this more immediate circumstance, it is the very generalization of the rights-holder’s position that fundamentally—as fundament and with greater weight—institutes the rational abstract individual actor that is at the core of the modern imaginary. Juridical-political power, charged with upholding the law from without those individual relationships, is in the same position vis-à-vis A and B, as a mediator between them. It is not in a free-position; however, even less has it the right to issue commands as it pleases. Its ‘rights’ are not fundamental rights at all; instead, it has a duty to uphold the law, even against A or B, protecting the freedom of both, though in ordinary legislation this duty may be and usually is framed according to a,  in this respect, ­misleading language. It is valid especially and exclusively to speak of state’s rights only when we refer to contracts between individuals (and other collective agents legally constituted) and juridical-political (‘corporate’)

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power in the sphere of private law, not to fundamental rights.44 Further than that, to speak of the rights of the state makes sense only if an organicethical view of state power is assumed, a path sometimes taken in modernity, which has not, on the other hand, consisted in its main strand of development and is at variance with its most usual liberal expressions.45 The state, as such, and as thoroughly as possible, will still come into sharp relief at further stages in our analytical systematic construction, lending more complexity to our view of rights and law. At a very basic level, such as conceived in the modern imaginary, in terms of civil citizenship, the state must simply refrain from preventing or obstructing an individual, A or B, from enjoying its rights according to its privileges and immunities, that is, acting as they will, as well as protecting A or B when raising claims to other individuals with reference to their recognized free-position and rights. That external juridical-political power has a duty not to prevent or obstruct A’s or B’s actions, including their control over things, as well as upholding their juridical positions according to fundamental rights. A and B have a claim vis-à-vis the state in this respect.46

1.4   Reach of Citizenship Rights In principle absolutely universal and with a tendency to encompass all individuals belonging to a specific ‘society’, citizenship rights have been historically unevenly distributed. Their meaning can also vary according to concrete situations, despite but also exactly because of their abstract character, in order that it is minimally consistent. It is true that citizenship rights have been a decisive element in the establishment of capitalism, in ‘possessive individualism’ and in the subordination of the working class to capital (workers had, in this regard, basically, the possibility of changing ‘masters’, with slaves necessarily subordinated to only one, according to the harshest formulations about the topic).47 Rights have however allowed for a greater or lesser degree of personal autonomy and independence, away from forms of personal domination (domestic servants remaining in a more ambiguous situation), as liberals have indeed argued even before their institutional recognition, through the idea of the social pact discussed above. In any case, they have remained to a large extent, when not realized, an aspiration of people wherever modernity has set in, which means today the whole world, their absence mourned and denounced when they fall short of full implementation.48

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Some are prone to speak of an inversion in the sequence of rights, critically assessing thereby Marshall’s aforementioned contribution (notwithstanding the difficulty of finding any generalization in his argument from the British instance, even to other European countries).49 While property has always been fiercely defended, personal security and liberty have not at all received the same amount of emphasis. Nevertheless, this does not detract from their formal existence. In what regards Europe, to stress moreover that Bismarck introduced social rights in advance of political rights overlooks the role of civil rights and is also guilty of ‘methodological nationalism’. It misses the connections of the general European process and particularly the transnational characteristics and impact of the 1848 revolution, as well as the evolution of the electoral franchise in Germany. France, with the 1791 Constitution, defined the civil rights of all individuals explicitly in relation to the ‘Declaration of the Rights of Men and of the Citizen’ (initially not within the bounds of a republic, instead of a Constitutional Monarchy). For the French people, it had formal universal reach and application, such as it has become the case henceforth. Colonial possessions fell at best unevenly and belatedly within this rights-mould. Citizenship’s rights excluded racially distinct, ‘backward’ peoples, putatively not prepared for their enjoyment, let alone the brutal suppression of Haiti’s Jacobin revolution.50 This was something particularly complicated insofar as France had produced that declaration of universal rights, a landmark in the history of modernity, although in Britain, things had already gone a long way in the actual recognition of civil rights, which could be in any case trampled when it was in the interest of ruling collectivities in relation to the working classes.51 Before the French revolution, the 1776 Declaration of Independence and the Constitution of the United States established civil citizenship for ‘all’ Americans, without uttering a single word about slavery, trying instead to make it invisible, since the contradiction between formal law and social reality was blatant and might become unbearable if openly stated.52 Slavery was only openly mentioned and formally prohibited with Amendment XIII of 1865. In turn, the Brazilian 1824 Constitution was much more direct in the definition of its citizens in civil terms as including ‘ingenuos’ and ‘libertos’ (i.e. those either born free or freed). Slaves were thereby almost explicitly excluded from it. Increasingly, as an imposition of the times, no country included any provision in its legal texts recognizing any form of bondage or exclusion from basic civil rights. While women were second class citizens and children had a somewhat precarious status, for they were both usually subordinated in

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civil codes to the male head of the family—to start with according to the paradigmatic 1804 Napoleonic Code—this changed piecemeal since then and is today almost unimaginable in many countries and regions.53 The context in which civil rights are introduced can somewhat alter their meaning. In a situation in which individualization, whether by capitalist development or other propellers, has already advanced to a certain extent, civil rights have meant first of all the formation of a waged proletariat, which can enter contracts and sell its labour power, Britain consisting in the foremost example of these changes in the eighteenth and nineteenth centuries. Civil rights could, alternatively, provide for the formation of an independent peasantry with small land holdings: this was the outcome of the French Revolution. In other contexts, they might work differently. This happened in Peru, for instance, where the attack on colonial institutions after the process of independence included the destruction of the agrarian indigenous community, with its common property of land. This did not really entail the individualization of ‘Indians’, and even less so their freedom. Instead, they were expropriated by already big landowners and subsequently fell into a sort of personalized and servile form of domination in conditions of even greater deprivation.54 This means that there may be paradoxical aspects in the historically specific development of citizenship—at least for a while. This is unlikely, however, to simply carry on: people usually fight against such sort of outcome and for a different direction for the development of rights once the modern imaginary predominates. Outside of Europe and the Americas, pathways varied a lot, but one characteristic is shared to a large extent by many new countries: where modernity was taken up more autonomously, civil rights were established in more universal terms, where colonialism was responsible for their introduction usually dualistic systems came into being. The first case is notably that of Japan, where constitutional provisions and a civil code promoted the formal development of citizenship—or at least of an Imperial subject upon which uniform law was imposed—already in the nineteenth century. The second case is that of the Indian subcontinent and Africa, where the British and the French introduced a sort of dual legal system, separated for ‘natives’ and Europeans, respectively supposedly ‘traditional’ and rational-­ modern. Although this was formally superseded after independence and the formation of independent countries in such regions, intricate problems remained sometimes, especially in relation to Muslim populations in both these areas.55

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1.5   Rights and the Modern Imaginary We have throughout this chapter dealt with a tight cluster of elements shot through the modern imaginary, a concept proposed by Castoriadis, consisting of a malleable ‘instituting’ symbolic universe through which ‘society’ is ‘instituted’.56 Rights and citizenship are crucial floating imaginary significations, symbolically weaved and suffused with a magmatic, amorphous character, which lends them to a good extent a shifting, unstable quality. They acquire diverse meanings and are phrased according to different legal traditions, varying in relation to the specific circumstances in each country that has come under their spell, eventually being combined on occasion with elements stemming from other civilizational traditions. Their institutionalization reduces this magmatic complexity, without being capable of eliminating it. Moreover, while the crystallization of the imaginary in diverse sorts of social memories—such as, in what interests us more closely, written law, including constitutions, and the brain of individual agents—to some extent objectifies the imaginary (with varying degrees of instability and internal tension), it does not really go beyond intersubjectivity, towards sheer objectivity or, say, cultural ‘trans-­ subjectivity’. Meaning endures and circulates only insofar as it is part of ongoing interactions, shorter or longer term social processes, within which it is reproduced and changes. This is true with respect to political ­modernity as well as to any other social dimension, in any space-time configuration, including broad civilizational complexes, such as the modern one. Beyond a tendency to join the notion of the imaginary with culture in a loose and traditional sense—something usual nowadays57—Castoriadis proposed a much sharper concept, capable of explaining fluidity and creativity. This implied the ‘radical imaginary’ or ‘imagination’, something not entirely consistent in his writings. He did that mainly at the individual level, though, with some objectification in its instituted moments, though, again, this was not clearly defined, the magma also defying his conceptualization. I have formerly tried precisely to correct this with a view of social (collective) creativity, which has at its core the interaction between individuals and collectivities as well as practice (without by any means eschewing the idea of the radical imaginary).58 I extend the conceptualization here, combining it with elements from other traditions, including Marx’s own and phenomenology. Rights and citizenship consist at once in a rational feature and in an enchanted construction according to which we are free and abstract individuals for whom law is all that matters, at least on one side of our

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split-up nature. In this regard, they play a role similar to the fetishism of the commodity in Marx’s Capital. Therein he speaks of the commodity as a ‘riddle’ and of its ‘mystic’ character, as a ‘hieroglyph’ and a ‘mystery’, explicitly pointing to ‘magic’ or ‘enchantment’ (Zauber) and ‘spook’ (Spuk). This seems to obtain in his account regardless of the situated, micro-rationality agents must mobilize in their dealings in the market place, regardless of being totally immersed in that magical, enchanted mist, a mix of rationality and irrationality resulting from these interchanges.59 Pasukanis extended this, as observed above, with the idea of ‘juridical fetishism’, even though without all of Marx’s subtle phenomenological resonances. This obviously contradicts Weber’s opposite thesis, which stresses the absolutely ‘rational’ and ‘disenchanted’ character of modernity, developed with respect to capitalism, the unintentional consequences of the Protestant ethic, with its moralization of life, and its eventual shedding of religious garbs as that civilization matured, first developed within religion itself. If the thesis correctly stressed some degree of continuity, in the end, Weber affirmed an exaggerated rift between these universes (rational versus irrational).60 The same would apply, according to him, to law, rationalized in the modern West, in opposition, for example, to Islamic ‘kadi law’, arbitrary, particularistic and based on inscrutable ‘charisma’ (in which enchantment was, of course, crucial). This is a process he seems to have gravely misunderstood, as a consequence of  a very skewed construction of ideal types concerned with deviations from modern rationality.61 Moreover, disenchantment was also deemed, in Weber’s discussion of science, as stemming from ‘intellectualization’ and ‘rationalization’ (i.e. ‘calculation’, whatever this exactly means), which stood against all ‘mysteries’ that formerly flabbergasted humankind, with values fleeing the world.62 We will see in the next chapter that this partly applies to the forms of domination too. There is no way one could make a point-to-point correlation between Marx’s and Weber’s texts in this regard. Besides, religion was an immense issue in the German Geisteswissenschaften at Weber’s time, from which he hugely learnt. Conceptually, there is no proper definition of magic and religion in Marx’s Capital. In the same register, in Weber’s texts, disenchantment wavers from its narrow thesis about the abandonment of magic as a means of salvation to a larger process leading from this to ethic religions and eventually the loss of meaning under capitalism with its mechanical integration and ‘instrumental rationality’, beyond the ‘value rationality’ (systematicity) of Protestant asceticism and new forms of

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s­ cientific outlook (and I shall deepen the discussion on ‘formal’ and ‘substantive’ rationality in the next chapter).63 Weber’s was a thesis that can be seen as strongly falling within the rationalist imaginary of modernity and, stock taken of the provisos made above, as at least partly an answer to Marx’s statement about how a sort of bewitchment dominates consciousness under capitalism and modernity by and large, which would disappear once the market and modernity were over—alongside what he formerly defined as ‘ideology’ and its distortion of reality.64 They both opposed meaning to reason/rationality, in an unspecified manner, and a cryptic dialogue seems to have been going on. Whether meaning seems to depart once reason/rationality prevails is not quite clear in their work, despite their different understanding of modernity also in this respect. Marx’s is an optimistic rationalism of the future, Weber’s a pessimistic one of the present. Rights and citizenship have found specific institutional anchorages in legal systems, and we will see that their general features are reproduced at other levels of the modern divide. In this respect, whereas suppleness stubbornly persists and their magmatic nature does not ever disappear—in fact gaining new determinations—it is to a large extent compressed in that institutional mould, losing some of its floating quality as fundamentally a symbolic component of the imaginary. This has, moreover, nothing to do with ‘alienation’ or similar concepts, distinctive of Marx’s early pieces and which remained relevant in his mature work. Nor should we think of the imaginary in a way such that rights and citizenship become merely a misapprehension of ourselves, or as if the identity that stems from them were thoroughly based on heteronomy. They allow for a possible construction among others, one which defines ourselves as totally free, individually and as a collection of rational individuals from which society emerges. This is not an entirely accurate rendering of what happens in social life, of course. We can speak of a paradox of rationality here: rights and citizenship are enchanted precisely because they are attributed such a  pure, abstract rationality—either individual, in defence of one’s right, both natural endowments, or superimposed by ‘political superiors’, in a reversal to some sort of Absolutism and from there to modern authoritarianism— which also assumes a sort of supernatural rational character, initially also detached from concreteness. All the same, these constructions provide for, in  a considerable measure, a  self-generated self-understanding, which includes a strong view of rationality, detached and disembodied. This consists in a real feature of individuals and collectivities, which must not be

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opposed to the imaginary in its modern expression, since it is part and parcel of it. On top of that, this reason creates legal institutions that assume an external and reified character, themselves in a sense supernatural, although regarded as a social product. On the other hand, this has nothing to do with the confusions of ‘political theology’ (or juridical theology, for that matter).65 There is no reason to buy into that. Concepts, ideas and practices never entirely break away from former moorings, and ‘secularization’ is a poor conception of the development of the modern imaginary (creating as such, as its opposites, ‘magic’ and ‘religion’, in a broad sense). There is no reason to oppose reason to enchantment. Neither sheer rationalism nor irrationalism is of help here. As real abstractions, rights and citizenship strongly evince what we may call, following Lévi-Strauss, ‘symbolic efficacy’.66 This is what really makes them a real abstraction, for they organize the totality of modern social life, starting from the abstract side of the modern divide. It is not because we believe in ‘magic’ proper, as if we lived in pre-modern times and the symbolic manipulation of invisible entities could causally result in effects in the visible world (in concrete instances how credible magic is consists in an open topic and charlatanism has always been a  common phenomenon, introducing great ambiguity in the faith in particular cases before modernity, as anthropologists know well). This is not due to the absolute opaqueness of the concrete aspects of social life either. Not only are these inevitably present, we are bound to be aware and, as we will see, eventually push their way into rights and citizenship. The rights-form and the citizenship-form imply a detached and highly objectified view of social life, in which reason is supposed to prevail, whether or not the fable of the social contract carries any weight in a given society, the state is seen as granting them or, even, we are aware that a more historical process has brought them about. Their enchantment and efficacy depend on the sort of objectifying (supposedly detached) and abstracting (homogenizing too) reason that attains its summit in modernity and offers a make-believe in which we appear as, to a large extent, originally isolated individuals without qualities, refracting reality and allowing us to one-sidedly grasp our social liaisons. Rights and citizenship orient our lives and, in their apparently absolute, abstract rationality, hide a reifying and mystifying spell. These are forms that conceal, as so many others also often do, the contingency of their specific, rather peculiar and historical, imaginary constitution. Their import is, on the

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other hand, quite real, organizing social life and entailing some level of individual and collective emancipation at least from relations of direct and personal domination. Contrary to present-day widespread presuppositions, this does not detract from the fact that, by objectifying the world (natural, social, subjective), this configuration of the imaginary mostly likely grants a higher level of cognitive power than other, nonmodern imaginary significations. To be sure, rights and citizenship are never formulated and experienced in a social vacuum. Their spell is exercised only in their specific historical configurations, therefore combined with many other imaginary elements. Only analytically can we disentangle the more general view of rights and citizenship, presented here in terms of clear-cut analytical categories, from their concrete embodiments in particular space-time coordinates. The same is true regarding their permanence and change, since these specific historical configurations never remain entirely identical and actually at times transform themselves very quickly, depending on how political and overall social life evolve. Rights and citizenship in any case appear as phenomenological background elements, symbolically organized and infused by experience. They can be more or less structured and structure a system of ‘relevance’ which directs our attention and a ‘stock of knowledge’ that orients our insertion in the world, cognitively, normatively and expressively. Thereby we also typify, in terms of general categorization, as individualized beings within the more encompassing abstract generalized other, one another as bearers of rights. Rights and citizenship offer in addition a phenomenological horizon within the possibilities and limits of which we collectively move—and dream—regardless of possible glimpses beyond it and the more or less glaring contradictions and gaps they may evince in actual social life as well as the creative openings that come up and we ourselves yield.67 This collectively shared imaginary horizon, with its background stock of knowledge, includes perception, which it shapes, but, as we have seen, goes far beyond it. Many other elements will emerge later, allowing us to explain more systematically how such process of construction of social reality comes about. At this stage, it is important in particular to retain that such a construction contains a seductive promise, which it only partially fulfils: the even distribution of social power among all individuals, amounting to a strong normative standpoint directly connected to individual rights. This covers both the imaginary and the institutional components.

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1.6   From Rights to Sovereignty We have been able to establish citizenship rights as crucial for the definition of the dual individual—with its abstract and concrete aspects. They were located at the basis of social life in its formalized expression. As a rights-holder, this individual was defined as an agent that crafts the putative social contract which so much of modern western thought initially cherished as a solution for the problems of established power and from which constitutional and ordinary law stems. Sovereignty is, as everything else, in modernity and other civilizations, an imaginary construction. Yet it is not simply an  ‘illusory’ (engebildeten) expression, contrary to what Marx suggested, as another expression of the also ‘imaginary’ (imaginäre) ‘community’ of men that built the abstract side of the modern divide, such as he theorized it in the first steps of his thinking, which would flow into Capital’s  formulations about fetishism.68 That does not mean it is the whole truth either. It is limited and citizens, as will be increasingly clear as we move on, only very partly lie at its foundations. In the idea that the social pact was a contract freely entered in by individuals originally in a ‘state of nature’, all the construction rested on their rights and will. If something else was to be created, only through their action would it come about, and this new creation should remain under their control. From liberals to republicans, this was the main formulation, as we see in Locke and Rousseau, regardless of some important differences between them. To phrase this concern, a twist was made in a concept inherited from the immediately previous period. This was the concept of sovereignty. It has a convoluted history, in which Bodin and Hobbes, as theoreticians of Absolutism, stand out—with especially the latter holding already an atomist view of social life and, in his later phase, of his Leviathan as a composite being, the upshot of a ‘covenant’ manufactured by those formerly free individuals (who in any event kept their right to self-­ preservation, which Hobbes picked up from Grotius). Power to command distinguished the sovereign. This was the direction the concept would take henceforth. Individuals were then in a state of nature and entered that social contract, either to preserve or to create liberty: they were originally, and remained, sovereign. Such a move changed the notion that sovereignty belonged to the prince, standing above the law—which he was to give—and was concentrated in one indivisible and single organ. Independence and territorial control, homogeneity and unit of rule, were key elements of its internal regime, which included legal monism. If

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Hobbes argued that once given up, sovereignty would never return to the ‘multitude’ of individuals who had entered the original contract, liberalism and republicanism emphasized exactly the opposite: those free individuals were ultimately the bearers of power regarding the newly created entity, which was merely instrumental for the consecution of their goals. A ‘principal-agent’ connection was established thereby, in terms of a ‘fiduciary relationship’, resting on trust, in which the former delegates power to the latter to act according to the former’s interests, within the bounds of law. Locke and Rousseau penned the initial and perennial arguments of this strand of reasoning, according to which strong strings keep sovereignty attached to the soil from which it originally springs.69 The self-governing citizen was then that free individual, a rights-holder whose definition included its own sovereign status (even if this was encompassed by a more collective definition—a ‘social compact’, in its majority or unity—and the de-personalization of the sovereign vis-à-vis concrete individuals). An external entity, the state, stood as its instrument in the maintenance of social peace and rights. But it was defined this way with the specific proviso that this would be from now on, in a true historical mutation, a sort of impersonal sovereignty. It would be abstract in that it got rid of the former personal character of the ruler, a feature of princely power dominant during at least the Christian ‘middle ages’—to which extent this was the case of Hobbes’ Leviathan and its composite body possibly being open to doubt. This implied the construction of an apparatus in order that these goals were achieved, beyond the mere positive legal definition of individual rights. Juridical-political power had to be practically constituted. In addition, we encounter, beyond Absolutism, a limited and always provisional transference of sovereignty to that apparatus, initially with the objective of keeping things as they were, in other words, of maintaining a situation in which the present was closely related to the past—as its mere extension, albeit somewhat transformed—and a future that would be immutable too—although individuals could pursue their transformative goals in the more concrete coordinates of their private lives. That order could not arise or be maintained spontaneously, and this entailed the construction of something external to citizens themselves. Eventually, that new body became more prominent, even in imaginary and normative terms, with utilitarianism and other currents, as already seen, inverting the relation, that is, reversing to previous conceptions of power: sovereignty was returned to the top, snatched away from the individual citizen and vested

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in ‘superior political’ figures. Thereby that ‘agent’ became ‘principal’.70 Of course, this connection may be entirely skipped, with sovereignty attributed directly to the state apparatus and to those in charge of its management. It might even be said that once law fully defines the modern state, sovereignty internally disappears, or that at most it subsists limitedly, taken away by the Constitution, even if initially of popular origin.71 Further ahead, we will have occasion to re-evaluate rights in general. It is necessary to note here that, although they are far from exhausting the political dimension of modernity, and veil as much as they reveal, constituting what may be called an ‘appearance’, this is by no means merely a surface that must be left behind once we penetrate more deeply into social reality, as will be done in the following chapters of this book. Marx’s discussion of the commodity, to which I have already referred above, and which is crisscrossed by allusions to a dichotomy with metaphysical origins, remained plagued by ambiguity in this regard. That is, when Marx problematically brought ‘appearance’ (Erscheinung) and ‘essence’ (Wesen) together, even as unavoidably and dialectically connected aspects of the same reality, the former tended to be seen as a mere superficial wrap to be carefully ripped and discarded as a disguise of exploitation, such as ultimately yielded in and by the ‘enchanted world’ of the ‘fetishism of the commodity’ (or in and by what Pasukanis denounced as ‘juridical fetishism’). The ambiguous place of the sphere of circulation vis-à-vis that of production and the not entirely resolved relation between ‘value’ and ‘exchange-value’ are possibly partly to blame for this shortcoming. It is true that in rare passages Marx rather speaks of ‘semblance’ (Schein), but the problem is hardly settled thereby, nor is too close a relation to Hegel’s demarche in his Logic to be deduced from this.72 This heavy metaphysical heritage is precisely what I want to avoid here; and for that we need to jettison those exact terms: ‘essence’ and ‘appearance’ are problematic as such. At best, the latter can be employed phenomenologically. Citizenship and rights, particularly civil rights, constitute a more immediate layer of social reality—one that presents itself to agents more directly and which organizes their experience. They are moreover, as indeed the real abstractions we have formerly defined, part and parcel of the political dimension—as such also juridical—of this sort of civilization, not merely a deceptive component thereof. They rest on the dual individual that results from the fractured nature of social life in modernity, which they contribute to create. The elements we will soon examine must be considered through the same lenses: they present a limited and

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i­deological countenance, once again an immediate aspect of reality, which is, always, a social construction resting on that real abstraction, whose import will be taken to a broader dimension. In other words, we have started with a phenomenological standpoint—which is in my view also the best understanding of Marx’s epistemological operations in Capital—but will move on beyond it. We will make therefore a transition to another analytical level and will analyse in detail which sort of juridical-political body and apparatus is this that has been superimposed on individuals and their rights, in whatever way one may think this originally happened and keeps happening. The concept of sovereignty has built a bridge for that. Now we must leave it provisionally behind and cross over to the other side, finally fully coming to grips with the modern state.

Notes 1. José Maurício Domingues, ‘Existential social questions, developmentaltrends and modernity’ (2016), in Emancipation and History: The Return of Social Theory (Leiden: Brill, 2017 and Chicago: Haymarket, 2018). For the putative naissance of, strictly defined, modern political thought, see Niccolò Machiavelli, Il principe (1532), in Edizione nacionale delle opera di Niccolò Machiavelli (Roma: Salerno, 1997). For some of its layers of readings, see Claude Lefort, Le Travail de l’ouvre Machiavel (Paris: Gallimard, 1972). Recognizing specific requirements of political life, against the foil of the development of tendentially self-absorbed individualism, is not tantamount to stating its independence from ethics or morals. 2. Karl Marx, Zur Juden Frage (1843) and also Zur Kritik der Hegelschen Rechtsphilosophie. Kritik des Hegelschen Staatsrechts (1843), in K. Marx and Friedrich Engels, Werke, vol. 1 (Berlin: Dietz, 1981), where civil society is given primacy. 3. Georg Wilhelm Friedrich Hegel, Grundlinien der Philosophie des Rechts (1820), in Werke, vol. 7 (Frankfurt am Main: Suhrkamp, 1986). How arbitrary are his efforts to surpass such actual contradictions, among others, is missing from Frederick Neuhauser, ‘The method of the Philosophy of Right’, in David James (ed.), Hegel’s Elements of the Philosophy of Right: A Critical Guide (Cambridge: Cambridge University Press, 2017). See further Chap. 2 in this book. 4. Georg Simmel, Philosophie des Geldes (Frankfurt am Main: Suhrkamp, [1901] 1996), pp. 609ff; Gyorg Lukács, Geschichte und Klassenbewuβtsein. Studien über Marxistische Dialektik, in Werke, vol. 2 (Darmstadt: Luchterhand, [1923] 1977), pp. 271–85; Eugeny B. Pasukanis, La Théorie

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generale du droit et le marxisme (Paris: EDI, [1924] 1969); Nicos Poulantzas, L’Etat, le pouvoir, le socialisme (Paris: Presses Universitaires de France, 1978), pp. 54–55, 94–99; Galvano della Volpe, Rousseau e Marx e altri saggi de crítica materialista (Roma: Editori Riunitti, 1957); Umberto Cerroni, Marx e il diritto moderno (Roma: Editori Riunitti, 1962). For western law as an abstract and rationalized system, pace British issues concerning common law, see Max Weber, Wirtschaft und Gesellschaft. Grundriβ der verstehenden Soziologie (Tübingen: J.  C. B Mohr [Paul Siebeck], [1921–22] 1980), pp. 387–513. 5. Marx himself implicitly suggests something similar when contradicting Aristotle’s view of the ‘original form of the family’. K. Marx, Zur Kritik der Politischen Ökonomie (1859), in K.  Marx and F.  Engels, Werke, vol. 13 (Berlin: Dietz, 1961), p. 36, note. His understanding of ‘form’ appears at this stage as more restricted (merely objective) than it would later become, as we shall see below. 6. Georg Jellinek, System des subjektiven öffentlichen Rechte (Tübingen: Mohr Siebeck, [1892, 1905] 2011), pp. 15ff. 7. Pasukanis, op. cit., pp. 99–110. 8. Real abstractions arise therefore from within social life overall, not from external ‘colonization’ (of self-steered social systems), contrary to Jürgen Habermas, Theorie des kommunikativen Handelns (Frankfurt am Main: Suhrkamp, [1981] 1988), vol. 2. Although the idea can be found in Marx and especially Lukács, occasionally appearing in Simmel, the expression was central to Alfred Sohn-Rethel, Geistige und körperliche Arbeit. Zur Epistemologie der abländschen Geschichte (Weiheim: VHC Acta humaniora, [1970] 1989). 9. K.  Marx, Das Kapital. Kritik der politischen Ökonomie, vol. 1 (1867, 1873), in K.  Marx and Friedrich Engels, Werke, vol. 23 (Berlin: Dietz, 1962), pp. 189–90. 10. T. H. Marshall, ‘Citizenship and social class’ (1950), in Class, Citizenship and Social Development (Garden City, NY: Double Day, 1964). See also Norberto Bobbio, L’età dei diritti (Turin: Einaudi, [1990] 1997), p. 70. 11. Charles Taylor, Sources of the Self: The Making of Modern Identity (Cambridge: Cambridge University Press, 1982), pp. 15ff, 23, 94, 152, 383. 12. Immanuel Kant, Metaphysik der Sitten, in Werke, vol. 8 (Frankfurt am Main: Surkamp, [1797] 1977), ‘Einleitung in die Rechtslehre’, §§ A-E, pp.  336ff, ‘Einteilung der Rechtslehre’, §§ A-B, pp.  344–45, § 45, pp.  430–31, Part II, ‘Eileitung zur Tugendlehre’, II, pp.  511–12. It is plausible that Kant had at this point given up his early racist views and even pro-slavery of ‘non-white’ people, but women were not as fortunate: full freedom remained a male preserve.

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13. Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977). The confrontation in sociology between a normatively oriented and a positivist perspective was carried out in J. Habermas, Fazität und Geltung. Beitrag zur Diskurstheorie des Rechts und des demokratischen Rechtsstaat (Frankfurt am Main: Suhrkamp, 1992) and Niklas Luhmann, Das Recht der Gesellschaft (Frankfurt am Main: Suhrkamp, 1993). Habermas embraces an excess of benign normativity, which he attaches to law as stemming from rational communicative action and the life-world—at least in practice discarding its ‘colonizing’ role as stateconnected ‘steering media’, such as present in his Theorie des kommunikativen Handelns, vol. 2, pp. 522–31, 539, 548–49. Luhmann reinstates his commitment to positivism through recourse to systems theory: law is what law is, with its simple legal-illegal code. 14. Bobbio, op. cit., pp. xvi–xvii. 15. Contrary to Arthur Corbin, ‘Jural relations and their classification’, Faculty Scholarship Series, Paper 2873 (1921). 16. Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays (New Haven, CT: Yale University Press, 1919), pp. 35ff. From early on, inconsistencies and lack of methodological clarity in Hohfeld’s concepts were signalled, cf. Albert Kocourek, ‘The Hohfeld system of fundamental legal concepts’, Illinois Law Review, vol. 24 (1920–21). Arguably, his four pairs could be reduced to the first and third, since the second and fourth merely invert them, according to Lon L. Fuller, The Morality of Law: Revised Edition (New Haven, CT: Yale University Press, 1969), p. 134. 17. A crucial discussion of ‘fundamental rights’ in analytical jurisprudence, inspired by Hohfeld and Jellinek, appears in Robert Alexy, Theorie der Grudrechte (Frankfurt am Main: Suhrkamp, 1985), especially chap. 4. He is, however, rather unclear about the position-structure issue. Mostly, I shall refrain from using his ‘beneficiary/right-holder-addressee-object’ terminology for those who will be treated as ‘A’ and ‘B’ as well as for the focus of their relationship. 18. Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, [1990] 2011), p. 25. 19. Judith J.  Thomson, The Realm of Rights (Cambridge, MA: Harvard University Press, 1990), p. 37. 20. For legal, abstracted and reified, responsibility (liability), see Hans Kelsen, Reine Rechtslehre. Einführung in der rechtswissenschaftliche Problematik (Wien: Verlag Österreich, [1934, 1960] 2000, 2nd edition), § 4.28.c, p. 125. 21. Jellinek, op. cit., p. 51. 22. Marshall, op. cit.; Luigi Ferrajoli, ‘Diritti fondamentali’, in Emanno Vitali (ed.), Diritti fondamentali (Roma: Laterza, 2001). For Locke’s view of

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property, see C.  B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford: Oxford University Press, [1962] 2011), pp. 198, 220. 23. Cf. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), although strangely aloof to arguments that might buttress his claims. 24. Pasukanis, op. cit., p. 131. 25. Hohfeld, op. cit., passim; Denise R. Johnson, ‘Reflections on the bundle of rights’, Vermont Law Review, vol. 32 (2007). 26. Hegel (op. cit., §§ 41–64, pp. 102–40) intuited this within the framework of a concept of intersubjective recognition between individuals who entered contracts as property owners. 27. Weber, op. cit., pp. 496ff; Leo Strauss, The Political Philosophy of Hobbes: Its Basis and its Genesis (Chicago: The University of Chicago Press, [1936] 1952), pp.  154–57;  John Finnis, Natural Law and Natural Rights (Oxford: Oxford University Press, [1980] 2011), pp. 206–07. C. Taylor, Social Imaginaries (Durham, CN: Duke University Press, 2003), chap. 1. 28. Thomas Hobbes, Leviathan: Or the Matter, Forme, and Power of CommonWealth Ecclesiastical and Civil (Cambridge: Cambridge University Press, [1651] 1996), especially chap. 16. Prior to that, there seemed to be, his becoming a supporter of Absolutism notwithstanding, a more open vista: he spoke of different forms of government and of the negatively viewed ‘multitude’ (‘crowd’ in the cited edition, translation modified) of ‘men ruling’ and ‘being ruled’, which can act as one only when, by agreement, it becomes a ‘people’ and is then ‘absolute’. No majority could afterwards change promises made, regardless of the form of government adopted, monarchy for him without doubt the best option. Idem, On the Citizen (Cambridge: Cambridge University Press, [1642, 1651] 1998), especially pp. 75–77. Democracy was at the origin of all regimes in the older work, direct authorization to act for rather than a transfer of right may have allowed him to discard that awkward hypothesis in his later work. A utilitybased contract appears clearly in Baruch Spinoza, Theological-Political Treatise (1670), chaps. 16–17, and, apparently de-emphasized, in his Political Treatise (1677), both in Complete Works (Indiana, IN: Hackett, 2002). Majority rule as the basis of obedience is paramount in John Locke, Second Treatise (1689), in Two Treatises on Government (Cambridge: Cambridge University Press, 1988), especially chap. 8. That two-stage solution was introduced in Samuel Pufendorf, On the Duty of Man and Citizen (Cambridge: Cambridge University Press, [1673] 1991), chaps. 5–11 (as well as partly already in Grotius). For republicanism, Jean-Jacques Rousseau, Du Contrat social, ou principes du droit politique (1762), in Ouevres complètes, vol. II (Paris: Seuil, 1971). He carefully distinguished the meaning of ‘republic’ or ‘political body’ as ‘state’, when it is ‘passive’,

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from ‘sovereign’, when it is ‘active’; as regards those associated in it, collectively named ‘people’, he distinguished ‘citizens’, when they participate in sovereignty, from ‘subjects’, according to their submission to the law (chap. 1.6). Finally, for Kant (op. cit., § 45, pp. 430, §§ 47–49, pp. 433– 36) a contract underpins human association, but it was neither hypothetical nor historical, nor even based on natural law. It merely presented the rational conditions of possibility for the association, ultimately based on individual transcendental free will. This was in variance with the hegemonic instrumental approach, while Rousseau’s ‘general will’ implied a twist too, taking up some issues from Hobbes (the total power of the sovereign) and deviating in others (the exclusively egoistic motivations). For an overview, see Ernst Bloch, Naturrecht und menschliche Würde (Frankfurt am Main: Suhrkamp, 1961) and Patrick Riley, Will and Political Legitimacy: A Critical Exposition of Contract Theory in Hobbes, Locke, Rousseau, Kant, and Hegel (Cambridge, MA: Harvard University Press, 1982). For more specific accounts, John Dunn, The History of Political Theory (Cambridge: Cambridge University Press, 1996); Richard Tuck, Hobbes (Oxford: Oxford University Press, 1989); Idem, The Sleeping Sovereign: The Invention of Modern Democracy (The Seeley Lectures) (Cambridge: Cambridge University Press, 2016); Alexandre Matheron, ‘The theoretical functions of democracy in Spinoza and Hobbes’ (1985), in Warren Montag and Ted Stolze (eds), The New Spinoza (Minneapolis, MN: University of Minnesota Press, 1997); Julian H. Franklin, John Locke and the Theory of Sovereignty: Mixed Monarchy and the Right to Resistance in the Political Thought of the English Revolution (Cambridge: Cambridge University Press, 1978); Louis Althusser, ‘Sur le Contrat Social (Les décalages)’, Cahiers pour l’Analyse, vol. 8 (1967); Ernest Cassirer, ‘Kant and Rousseau’ (1939), in Kant, Rousseau, Goethe (Princeton, NJ: Princeton University Press, 2016); Onora O’Neil, ‘Kant and the social contract tradition’, in Elizabeth Ellis (ed.), Kant’s Political Theory (University Park, PN: Pennsylvania State University Press, 2012). 29. John Austin, The Province of Jurisprudence Determined (Cambridge: Cambridge University Press, [1832, 1861, 1885] 1995), Lecture I, pp. 18ff; accepting however some sovereignty vested in the (very restricted at the time) ‘electoral body’ represented in the commons, alongside king and peers, Lecture VI, pp.  192ff. For the sources of his view of ‘command’, see Hobbes, Leviathan, chap. 26; and, more closely, Jeremy Bentham, An Introduction to the Principles of Morals and Legislation: The Collected Works of Jeremy Bentham (Oxford: Oxford University Press, [1789] 1996), chap. 16.25, p.  206; Idem, Non-sense upon Stilts, or Pandora’s Box Opened, or the French Declaration of Rights Prefixed to the Constitution of 1791 Laid Open and Exposed (1843), in Rights, Representation, and Reform: The Collected Works of Jeremy Bentham

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(Oxford: Oxford University Press, 2002). Bentham’s main work Of Laws in General was discovered only in 1939, and had no influence prior to that. Genealogically we need not discuss it here. It kept the will theory, actually belying his supposed empirical approach. See Karl Olivecrona, ‘The will of the sovereign: some reflections on Bentham’s concept of “A law”’ (1975), in Bikhu Parek (ed.), Jeremy Bentham: Critical Assessments (London and New York: Routledge, 1993). 30. An exception before Austin and Bentham was the view of political power and authority as usually grounded on force, habit and custom instead of on consent, in David Hume, ‘Of the original contract’ (1748), in Hume’s Ethical Writings (Notre Dame, IN: University of Notre Dame Press, 1965). No will theory was embraced here, though. Burke was softer in his defence of custom, ‘practical wisdom’ and rights as an ‘inheritance’, against ‘abstract’ French Revolution ‘metaphysical’ conceptions. He accepted their centrality, with caveats that secured the status quo. Edmund Burke, Reflections on the Revolution in France (1790), in Selected Works, vol. 2 (Indianapolis, IN: Liberty Fund, 1999). 31. Bloch, op. cit., p. 11. Curiously, although he recognized the revolutionary character of natural rights theory, positivism was crucial for Weber’s (op. cit., pp. 28–29, 544) definition of ‘power’, ‘obedience’ and ‘legitimate domination’. ‘Command’ was rendered as Befehl—in any case the phrase also used by Kant (op. cit., passim). Weber (op. cit., pp. 397ff, 498) was, however, quite aware of the importance of freedom (particularly of contract) and ‘subjective rights’ (‘rights’, simply, in English). He did not collapse them in the definition of law as command. 32. Don M. Wolfe (ed.), Leveller Manifestoes of the Puritan Revolution (New York: Thomas Nelson and Sons, 1944). 33. Kelsen, op. cit., § 1.4.d, pp. 15ff, §§ 4.28–30, pp. 120ff (especially p. 159), § 4.7.a, pp. 172–76, § 5.34.c, pp. 200–04, §§ 6.40–41, pp. 288–93. The individual/collectivity problem, which lingered since Savigny’s individualist view—doubled by a fictitious legal subject—and Gierke’s organicist understanding of collectivities, through Jellinek’s definition of a centred state will, was from the beginning tackled by Kelsen in constructivist terms. He later subsumed it under the basic norm of the pure theory of law, whereby he simply effaced the issue, including that of the will in legal theory. See Stanley L. Paulson, ‘Hans Kelsen’s earliest legal theory: critical constructivism’ (1996), in S. L. Paulson and Bonnie Litschewski Paulson (eds), Normativity and Norms: Critical Perspectives in Kelsian Themes (Oxford: Clarendon, 1998). 34. Carl Schmitt, Verfassungslehre (Berlin: Duncker & Humblot, [1928] 1993), pp. 125, 200, 216. Note that even Hegel (op. cit., § 38, pp. 96–97), despite the weight of the state in ethnicity, was adamant on the centrality

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of rights, as ‘permission’ or ‘warrant’, as well as related ‘prohibitions’, visà-vis ‘duty’ regarding abstract law. 35. Jellinek, op. cit., chaps. 1–6; Idem, Allgemeine Staatslehre (Berlin: O. Häring, [1900] 1914), chaps. 12–13. See also Alexy, op. cit., chap. 5. 36. Dworkin, op. cit.; Alexy, op. cit.; Ferrajoli, ‘Diritti fondamentali’; Bobbio, op. cit. 37. A detailed discussion, partly in variance with Austin’s views, closer to the unpublished Bentham, is found in Herbert L. A. Hart, The Concept of Law (Oxford: Oxford University Press, [1961] 1994), pp. 24–32, 48–49; Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford: Clarendon, 1982), chap. 2. This led him to ask what law is, beyond command, arriving, within the common law context, at the concept ‘rules of recognition’, including those authorizing law-making and adjudication. I believe, in spite of his reformulation of command into ‘orders backed by threats’, that at most we could, even regarding criminal law, speak of ‘duties’ to abstain from certain doings and deeds, except as to ancillary behaviour ex-post fact triggered by the wrong done. Then coercion ensues. Kelsen, as seen above, does the same, less decisively. 38. Kelsen, op. cit., § 1.3–6, pp. 3ff, § 3.16, pp. 73ff, § 4.27.b, pp. 116–19, § 6.37, pp. 224. He adds that, in public law—in contradistinction to private law and to contract therein –, command would have a prominent role to play. See also his General Theory of Law and State (Cambridge, MA: Harvard University Press [1925, 1945] 1949), pp. xii–xvi, 171–72, where subtle differentiations in relation to Austin are introduced. Looked at more closely, it is almost nonsensical to say that a ‘norm’—basic or otherwise—defined as an ‘ought’ should include permissions and authorizations alongside command, as he does in ‘On the basic norm’, California Law Review, vol. 47 (1959). Ought (the basic form a legal norm assumes) directly substitutes for command, dispensing with the ‘will’, in his ‘The pure theory of law and analytical jurisprudence’, in What is Justice? Justice, Law, and Politics in the Mirror of Science (Berkeley and Los Angeles: University of California Press, [1957] 1971). Durkheim had already observed (criticizing Spencer and through him the authoritarian positivist branch of British jurisprudence in which this author was steeped), that ‘restitutive’ and ‘cooperative’ law, among which he placed contract, grew in relation to repressive, penal law, stronger in primitive ‘mechanic solidarity’ societies and more limited in those of ‘organic solidarity’. Emile Durkheim, La Division du travail social (Paris: Presses Universitaires de France, [1893] 2013), especially pp. 27–34, 98–102 and chaps 5–7. 39. Kelsen, Reine Rechtslehre, § 4.32, p. 172, § 4.33g, pp. 194–95. 40. Axel Honneth, Kampf um Annerkenung. Zur moralische Grammatik sozialer Konflikte (Frankfurt am Main: Suhrkamp, 1992); Habermas, Fakzität

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und Geltung, especially chap. 3. Though we find power more prominently in A. Honneth, Kritik der Macht. Reflexionsstufen einer kritischen Gesellschaftheorie (Frankfurt am Main: Suhrkamp, 1988). 41. This explains too why he believed that legal relations do not consist in relations between individuals, even if abstractly conceived, but rather in their specific ‘conducts’. In addition, fundamental rights for him implied not (‘subjective’) ‘rights’ tout court. ‘Political rights’ (which he later defined as ‘subjective’) was the gist of the matter. Kelsen, Reine Rechtslehre, § 4.29.b–f, 130ff, § 4.32, pp. 167ff. Jellinek also spoke of ‘reflex rights’, in the sense that it is in the state that we find the source of law, in System des subjektiven öffentlichen Rechte, pp. 15ff. I shall propose exactly the opposite in what follows. 42. Such as conceptualized in Georg H.  Mead, Mind, Self, and Society (Chicago: University of Chicago Press, 1934). 43. Here, although he hopelessly gave up the analysis of what a ‘right’ is, Austin (op. cit., Lecture I, pp. 33–34) made an adequate and highly influential suggestion (cf. Hohfeld’s work). However, further on, he recanted on his coyness and bluntly affirmed that liberty (civil/political and as the absence of ‘legal obligation’) went only with restraints, protecting each individual from others and from foreigners (Lecture VI, pp. 224ff). Sheer utilitarian expediency is the hallmark of this, an approach which neoliberals would magnify in the second half of the twentieth century, while security appears as a key issue therein too. 44. Jellinek, System des subjektiven öffentlichen Rechte, chaps. 12–14. 45. Luigi Ferrajoli, Diritto e ragione. Teoria del garantismo penale (Roma-Bari: Laterza, 1989), pp. 923–24. Hegel has been the main source of this sort of conception. Although he was concerned with the institutionalization of individual freedom—recognizing contradictions, classes and many unpleasant things between free individuals in modern society—to turn him into an emancipatory liberal and overlook his commitment to state sovereignty as the embodiment of reason, above all sorts of right, is hardly warranted. See Herbert Marcuse, Reason and Revolution: Hegel and the Rise of Social Theory (London: Routledge & Kegan Paul, [1941] 1954), especially chap. 6; Shlomo Avinei, Hegel’s Theory of the Modern State (Cambridge: Cambridge University Press, 1972); Ludwig Siep, ‘How modern is the Hegelian state’, in James, op. cit. 46. Dworkin, op. cit., chaps. 7, 12; Alexy, op. cit., chap. 3. These are claims related to ‘negative acts’; ‘positive acts’ shall be examined in Chap. 3. 47. Macpherson, op. cit.; K. Marx, ‘Sechstes Kapitel. Resultate des unmittelbaren Productionsprozesses’, in Mega II/4.1: Ökonomische Manuskripte 1863–67, Teil 1 (Berlin: Akademie, 1988), pp. 95ff.

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48. Cf. Juan E.  Mendez, Guillermo O’Donnell and Paulo Cesar Pinheiro (eds), The (Un)Rule of Law and the Underprivileged in Latin America (Notre Dame, IN: Notre Dame University Press, 1997). 49. Cf. Michael Mann, ‘Ruling class strategies and citizenship’, Sociology, vol. 21 (1987). 50. Gary Wilder, The French Imperial Nation-State: Negritude and Colonial Humanism between the World Wars (Chicago: The University of Chicago Press, 2005), pp. 19, 25. 51. As shown in Marx, Das Kapital, passim. 52. The constitution did not include ‘Indians’ either. This protracted US situation was on occasion defined, in sociology, as the vexing ‘anomaly at the heart of the modern’ in Wolfgang Knöbl, Die Kontingenz der Moderne. Wege in Europe, Asien und Amerika (Frankfurt am Main: Campus, 2007), pp. 27ff. 53. Carol Pateman, The Sexual Contract (Cambridge: Polity, 1988); Göran Therborn, Between Sex and Power: Family in the World (1900–2000) (London and New York: Routledge, 2004), pp. 20ff. 54. José Carlos Mariátegui, 7 ensayos de interpretación de la realidad peruana (Caracas: Fundación Biblioteca Ayacucho, [1928] 2007), pp. 59–63. 55. Ming-Cheng M. Lo and Christopher P. Bettinger, ‘The historical emergence of “familial society” in Japan’, Theory and Society, vol. 30 (2001); Dan F. Henderson, ‘Law and political modernization in Japan’, in Robert E. Ward (ed.), Political Development in Modern Japan (Princeton, NJ: Princeton University Press, 1968); Lauren Benton, ‘Colonial law and cultural difference: jurisdictional politics and the formation of the colonial state’, Comparative Studies in Society and History, vol. 41 (1999); Bertrand Badie, L’Etat importé. Essai sur la occidentalización d’ordre politique (Paris: Fayard, 1992). 56. Cornelius Castoriadis, L’Institution imaginaire de la société (Paris: Seuil, 1975). 57. Other approaches to the ‘imaginary’ include Taylor, Modern Social Imaginaries. He falls back, regrettably, on something like a sociology of culture. Yet, his idea of a phenomenological ‘background’ (pp. 26–28) is of interest. I mobilize it below. Closer to Castoriadis, though sharing the culture shortcoming, is Johan Arnason, ‘Culture and imaginary significations’, Thesis Eleven, vol. 22 (1989). He coupled it with (‘trans-subjective’) phenomenology and hermeneutics. See Suzi Adams, Castoriadis’s Ontology: Being and Creation (Fordham, NY: Fordham University Press, 2011); S. Adams, Paul Blokker, Natalie J. Doyle, John W. M. Krummel and Jeremy C. A. Smith, ‘Social imaginaries in debate’, Social Imaginaries, vol. 1 (2015). 58. Especially Domingues, Social Creativity, Collective Subjectivity and Contemporary Modernity, chap. 2; Idem,  ‘The imaginary and politics in modernity. The trajectory of Peronism’ (2016), in Emancipation and

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History. I want exactly, in what concerns the imaginary, to surpass the subjectivism of Weberian-like positions and the objectivism of perspectives tributary to Durkheim (even in his last, ‘collective representations’ phase). As for institutions, I take the view, usual in sociology from Marx and Durkheim to Habermas and Giddens through Parsons, as regularized practices or patterns of behaviour, formalized or not. 59. Marx, Das Kapital, pp. 85–90. That mix concerns general market processes which we need not discuss here. Note that Marx speaks of the relationship between commodities as substituting for the relation between ‘men’. Previously, he had not gone this far, to his advantage, referring to commodity owners as ‘guardians of commodities’ (Hütter von Waren), in Marx, Zur Kritik der Politischen Ökonomie, p. 76. The relation between the imaginary and Marx’s fetishism is signalled by Castoriadis, op. cit., p. 221. 60. M.  Weber, Die Wirtschaftsethik der Weltreligionen. Die Protestantischen Ethik und der Geist der Kapitalismus. Gesalmmelte Aufsätze zur Religionssoziologie, vol. 1 (Tübingen: J. C. B. Mohr [Paul Siebek], [1904] 1988), pp. 158, 198ff. Disenchantment appeared in any case only in the essay’s second edition. 61. Weber, Wirtschaft und Gesellschaft, pp.  155–58, 469–70, 475–76, 596, 662. For the contraposition between macroscopic and microscopic law— the former the ideology of modernity—see Frank E. Vogel, Islamic Law and Legal System: Studies of Saudi Arabia (Leiden: Brill, 2000), pp. 25–32. 62. M.  Weber, ‘Wissenschaft als Beruf’ (1919), in Gesammelte Schrifte zu Wissenschaftslhere (Tübingen: J.  C. B.  Mohr [Paul Siebek], 1988), especially pp. 594, 612. 63. Flavio Pierruci, O desencantamento do mundo. Todos os passos do conceito em Max Weber (São Paulo: Editora 34, 2003). For his definitions of rationality in what concerns action, see Weber, Wirtschaft und Gesellschaft, chap. 1. Even more complicated is his understanding of ‘magic’, which I cannot explore in detail here. But see the next chapter. 64. K.  Marx and F.  Engels, Die deutsche Ideologie (1845), in Werke, vol. 3 (Berlin, Dietz, 1969). 65. C. Schmitt, Politische Theologie. Vier Kapitel zur Lehre von der Souveränität (Berlin: Duncker & Humblot [1922] 2009). 66. Claude Lévi-Strauss, ‘L’efficacité symbolique’ (1948), in Anthropologie structurale (Paris: Plon, [1958] 1979). 67. Alfred Schutz, ‘Common-sense and scientific interpretation of experience and thought objects’, in Collected papers, vol. 1 (The Hague: Martinus Nijhoff, 1962); Idem, ‘Some structures of the life-world’, in Collected Papers, vol. 3 (The Hague: Martinus Nijhoff, 1975); Edmund Husserl, Cartesianische Meditationen. Eine Eileitung in der Phänomenomologie (1931), in Husserliana, vol. 1 (Hage: Martinus Nijhoff, 1973), § 8,

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pp. 27–28, § 22, pp. 114–16, § 40, p. 200; Idem, Erfahrung und Urteil. Untersuchung zur Genealogie der Logik (Hamburgo: Claassen, [1939] 1964, 3rd edition), § 19, pp. 82–83. 68. Marx, Zur Juden Frage, p. 355. 69. Jean Bodin, Les Six livres de la Republique (Paris: Librairie Générale Française [1576, 1594] 1993), Book I, chap. 8; Hugo Grotius, The Rights of War and Peace (Indianapolis, IN: Liberty Fund, [1625, 1646] 2005), Book I, chap. 2.1–2; Hobbes, op. cit., chaps. 17–18; Locke, op. cit., chap. 19; Rousseau, op. cit., Book 1, chap. 1.6–1.7. The neo-Thomists of the ‘second scholastic’ held a much less individualistic view, emphasizing that individuals are naturally social beings, though unfolding a subjectivist standpoint on natural law. See especially Francisco Suárez, Defense of the Catholic and Apostolic Faith against the Errors of Anglicanism (New York: Lucairos Occasio, [1613] 2012/2013), Book 3, chaps. 1–3. Grotius’ ‘Preliminary discourse’ (in op. cit., §§ VI–IX) made the same point, actually. For the trajectory of the concept, see Quentin Skinner, The Foundations of Modern Political Thought, vol. 1, The Renaissance; vol. 2. The Age of Reformation (Cambridge: Cambridge, University Press, 1978); Jens Battleson, A Genealogy of Sovereignty (Cambridge: Cambridge University Press, 1995); linking sovereignty and constituent power, Andreas Kalyvas, ‘Constituent power’, Political Concepts: A Critical Lexicon, vol. 3 (2013). 70. Austin, op. cit., pp. 177–82, 200ff, 237–39. See also Bentham, Non-sense upon Stilts. 71. L.  Ferrajoli, La sovranità nel mondo moderno. Nascita e crisi dello Stato nazionale (Roma-Bari: Laterza, 1997). 72. Marx, Das Kapital, vol. 1, passim, as well as further volumes. Marx clearly remarked that he ‘toyed here and there’ with Hegel’s expressions (p. 27). Not even Marxists who introduce innovations, including specifically the role of the commodity and of exchange-value, totally evade this ambiguity. See Michael Heinrich, Die Wissenschaft vom Wert. Die Marxsche Kritik der politischen Ökonomie zwischen wissenschaftlicher Revolution und klassischen Tradition (Münster: Westfalisches Dampfboot, [1999] 2014), pp. 182, 222– 23, 255, 308–09. Check also Hans Fulda, ‘Dialektik als Darstellungmethode im “Kapital” von Marx’, Ajatus. Suomen Filosofisen Yhdistyksen vuosikrja, vol. 37 (1978); Igor Hanzel, ‘The circular course of our categories’: ‘Grund’ and ‘Erscheinung’ in Marx’s economic works’, in Fred Mosley and Tony Smith (eds), Marx’s Capital and Hegel’s Logic: A Reexamination (Leiden: Brill, 2014). Regarding ‘critical realism’, see J.  M. Domingues, ‘Realism, trend-concepts and the modern state’ (2016), in Emancipation and History. Besides, we must avoid the creation of ‘arbitrary abstractions’—they must be related to actual processes—and refrain from reifying empirical issues (and attributing to them the character of general analytical categories). See Marx, Zur Kritik der Hegelschen Rechtsphilosophie, especially p. 267.

CHAPTER 2

The State as Abstraction

2.1   From Law to State In modernity, as we have seen, individuals have their most basic relationship structured in a rather indirect manner. As free juridical persons—that is, in their ‘free-position’—they relate to each other first of all through the mediation of law, which constitutes them, as such, as abstract legal persons with rights, engendering a sort of juridical fetishism. These rights need to be guaranteed, preventing people from intruding in each other’s zones of immunity, hence trampling their freedom, as a requirement of their institutional existence, beyond the moral and imaginary dimension. How is this achieved? As a matter of fact, alongside the enchantment of rights and citizenship, with their niceties and idealizations, a cruder world frighteningly emerges. Freedom and coercion, in order to assure that the former is secure, feed and depend on each other. The social efficacy of the system of positive, institutionalized law must be connected to a more encompassing entity, the modern state, which is directly responsible for its actual existence and operation, organizing the coercive aspects which appear as necessary for the legal maintenance of state and society. This was evidently Hobbes’ point, less concerned with rights, engendering his merciless Leviathan, but liberal Kant in particular was adamant on the connection between freedom, law and coercion, the latter underpinning the former. He depicted the state as the ‘association of a number of people under the law’ (Vereinigung einer Menge von Menschen unter Rechtsgesezten), an ‘idea’ © The Author(s) 2019 J. M. Domingues, Critical Theory and Political Modernity, https://doi.org/10.1007/978-3-030-02001-9_2

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and a civitas, a legal entity based on ‘public law’. Crucially, to be effective, it had to be backed by ‘force’ (Gewalt).1 This understanding has never abandoned liberalism. In their entwinement, those three terms make political modernity possible. This has further effects on the way law is as such conceived, introducing a securitizing element in the legal equation as well. This comprises, but goes beyond citizenship, including the state in what must be protected. We have hitherto treated law, in its role of mediation, without additional specification. Now we must observe that the split-up nature of modernity, which I have defined in Chap. 1 as one of its fundamental characteristics, cuts across its definition as well, with the existence of private and public law. Private law relates directly to rights of individuals as members of a legal community in what concerns their dealings in the societal side of the modern divide. In turn, public law suffers a further bifurcation: it is on the one hand law turned inwards to the state, regulating its internal functioning and, on the other, it includes the legal definitions of the relations between the individual and the state. This is the legal framework of relations between the state and individuals as citizens—positively, for instance when they vote, or negatively, when law-breaking behaviour is at stake; or once it is their private quality that matters, when prosaic contracts are enacted between them and the state.2 Over and above a ‘public sphere’ of opinion or anything similar, this public constitution of law, in its manifold aspects, is what has underwritten the opposition between public and private, the dual character of modernity.3 Yet, the state is not only legally defined: it acquires, vis-à-vis individual agents, a ‘juridical personality’.4 This has been a contentious issue, though, for the state has often been regarded as a fiction by philosophical, juridical and sociological currents, which embrace a sort of methodological individualism, even if in practice the state does assume a juridical personality. But this is not necessary if collectivities are considered as not reducible to their individual components. While the state started to acquire its modern meaning in the Italian Renaissance, that collective specificity is precisely what Hobbes assumed, at the same time attributing to it utter passivity, with the absolute sovereign coming to rescue as its active representative— depositary of the ‘will’ of those he represented. Momentous, albeit disputed, consequences for political and legal thought stemmed from this conceptual-normative move. Such later authors as Pufendorf, Vattel,

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Hegel and Jellinek took up Hobbes’ ideas and even, in some cases, attributed an active character to the state, while such others as Bentham, Savigny and Weber, denied it either a separate existence and a juridical status or at least its active capacity, even at the cost sometimes of blocking the possibility of further argumentation and even some self-contradiction.5 To arrive at a fuller and proper solution, I ask that we wait until Chap. 3, where I elaborate on the concept of collective subjectivity. What matters at this stage is to note that, formally playing the role of mediator between individuals via law, the state has assumed, by acquiring a juridical personality, a distinct quality and a very enlarged nature. It remains a mediator, but is converted into a specific agent. In its fetishized abstractness and detachment from people of blood and flesh, it must act and coerce people into respecting each other’s freedom, within the limits set by law, if they step out of line. Whether the state or the law should be seen as coming first is evidently a pointless question. The modern state developed from prior forms of organization of power, something obvious from a historical and sociological perspective. We will examine this in a specific section of this book. The issue to be grappled with here is different. The modern state is a Rechtsstaat, as Germans put it, a ‘legal state’ which usually rests on a basic, ‘rigid’ constitution, with a few exceptions.6 This legal component is, conversely, a property of the modern state. In theoretical terms—and logically, that is, in terms of the categorial exposition carried out here—they belong together. It would make no sense to oppose state and law or to ascertain the priority of one over the other, regardless of how specific modern legal states have actually developed and of the gaps we will bring up in what regards this characterization. Here, we shall analyse the state as a unity; in Chap. 7, it will be discussed within the framework of the system of states. We must now reckon with three aspects of the modern state. It has been charged with a double task: to care for the ‘rule of law’, that is, the homogeneous application of law across the territory over which it exercises jurisdiction, taking rights into account and endeavouring to protect them. Second, it must guarantee ‘peace, security and order’. An administrative machine is necessary to perform this task. Finally, the concept of real abstraction that held pride of place in the former chapter will once again come to the fore, full blown.

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2.2   The Rule of Law The key and most general component in the system of mediation between citizens and the state, the apparatus putatively created to ensure rights, is what has conventionally, since the nineteenth century, been called ‘the rule of law’. Locke was to a large extent the paradigmatic author in its original conceptual formulation, but others, too, contributed to it, to start with the Levellers. In this connection, the abstract, de-personalized character of law stands out. It implies ‘neutrality’, ‘uniformity’ and ‘predictability’, ‘generality’ and ‘autonomy’, from other societal and state elements, including and with an emphasis on those concerning the apparatus that is supposed to apply it. Content is eschewed in favour of the homogeneous and universal reach of law, irrespective of whom it is applied to. Form reigns supreme. This is especially true vis-à-vis the fundamental rights discussed in the foregoing chapter. It also concerns lower, more specific legislation, for it is geared to the attainment and protection of those rights—freedom, security, property, including how and to which extent taxation by the state is legitimate—no matter how they are phrased, under a general presupposition of equality before the law. No one would be above or below its purview and application. Institutionally, the rule of law is dependent upon what we now regard as separate legislative, administrative and judicial powers (though this was not always so sharp in early liberal and republican thought). One power should limit the other. They perform different tasks, thereby avoiding the risk of the particularized views of any of them being imposed upon individuals or societal collectivities and falsifying the very rule of law.7 In other words, the rule of law has been closely linked to the separation of powers—especially the judiciary, which applies the law, from the executive and the legislative, that is, from political power. It also relies on proceduralism—the canons whereby the application of law is, or is expected to be, channelled, without attention to the concrete aspects of the cases at hand. The public character of law, absolutely detached from private interest, and publicity, that is, overall diffusion of information about its existence and operation, is another crucial aspect of modern juridical institutions. In addition, it may be seen as resting on ‘rules’ (or ‘norms’) that define the production of more specific legislation.8 The rule of law is seen as ‘rational’ in that it allows for predictability in its application. Regarding civil rights, the time horizon of the rule of law is of stabilization of expectations insofar as a consistent replication of

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behaviour is envisioned.9 Once this is to be expected, there is an accompanying increase in the calculability of action—one’s own and of others, facilitating instrumental action, expediency (the proper adaptation of means to ends). This was of course Weber’s view, who evinced some bewilderment with respect to the more concrete, customary and in this aspect purportedly ‘irrational’, hence less predictable, elements of Anglo-Saxon ‘common law’, particularly as compared to European continental (and Latin American, something he overlooked) ‘civil law’. In any case, statutory (parliamentary) law in Britain cut this customary element to size.10 One proviso must be introduced, though, with respect to the abstract character of the rule of law, namely, that it may be absolutely general, but also that—as Rousseau had already realized—it may define general categories of citizens abstractly taken, and, to some extent, differentiated from others. Either way, it must eschew any concrete qualification. Overall the rule of law should be ‘calculable and restrained’ and in this case we are actually speaking of ‘like rules for like cases’, with some restriction of its absolute and undifferentiated coverage. We do not leave the bounds of a high level of abstractness.11 Beyond that, to state that it merely means uniformity in application of general rules and that even slavery would be allowed within specific legal systems is to falsify its definition. Basic equality before the law in terms of basic rights is supposed in order that the rule of law makes sense in modernity, whatever the limits of its reach at specific moments of modernity, with dramatic tensions arising from this.12 This is really a preposterous assumption, implying, at most, the rule of law for some and the imposition of law on the many (implying rule by law, as we will discuss below). It goes far beyond what Rousseau and many others have had in mind, presuming at least basic social, civil liberty, equality in relation to law and state. If there may be variations in a number of lesser laws, with a more restrictive characterization concerning specific collectivities of citizens, they must be citizens first of all, otherwise it is pointless to speak about the rule of law. The rule of law goes somewhat beyond the mere Rechtsstaat. While it may be indeed a contested and somewhat vague concept once especially it is applied, the rule of law—against ‘the rule of man’ or ‘the rule of the government’—has been crucial for the definition of the modern juridical order, especially according to liberal perspectives. This should obviously be the case for contractarian theories. Furthermore, for those that recognize the state as an entity with its proper socio-historical characteristics it should imply, within the rule of law perspective, that ‘[l]aw is legally delimited [beschränkte] power’.13 That is, it is power domesticated

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by law, but still it is power all the same, now under the form of law, with which it must not tamper on the other hand. This idea of the rule of law has a long history too, as we shall see later, and many think this is a concept that has been overrun by developments in modern societies and states that lead away from its abstract character, something positive, conversely, for a number of critics.14 It is true that the rule of law has a strong ideological component, since it abstracts from those who are subjected to it, regardless of their social positioning and the situations to which it is applied, let alone its often-skewed application. But it also largely corresponds to a reality and an ideal, evidently depending on the social formation at stake. In any case, the regular reproduction of modern institutions could not be achieved without it. The law furnishes the basic parameters for social behaviour, interaction and interchange in modernity, between people within collectivities and between collectivities, including the market and firms, the state and citizens, families and all sorts of personal relations, whether between abstractly conceived individuals and organizations or between concretely defined persons and collectivities, which appear, in terms of civil rights, before the law, as legally abstract rights-holders and obliged to general duties. That is not to say that we should expect in practice the absolute application of the rule of law. I have already mentioned in Chap. 1 the problem of reach and meaning of civil rights, in particular regarding their uniform application in social life and how the state fails or is modelled so as to function according to a selective application of these rights to different social collectivities. It falls short, therefore, of upholding the rule of law in these circumstances, operating despotically and brutally in relation to part of the population under its purview. Thompson pointed this out in relation to eighteenth-century Britain, especially in relation to the ‘Black Act’, an extremely violent initiative that criminalized many conducts of the popular classes with the capital penalty and promoted enclosures, with many judges being politically and instrumentally oriented in favour of the ruling classes. In what was a surprising move for a Marxist at that point, he went further and showed how class struggle advanced mediated by law, for it organizes and permeates social relations. At the same time, this slowly developing rule of law constitutes an ‘unqualified human good’, he argued, a universal heritage of the agrarian and commercial bourgeoisie as well as of small land owners’ and petty artisans’ struggles in the seventeenth century. It limited the power of the state and of the upper-classes, which had henceforth to work through it in order to legitimize their domination, hence reinforcing legal equality to a

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large extent, in spite of the aforementioned sort of instrumental behaviour they might prefer. Thompson mentioned Gandhi and Nehru in passing and contended that even in the colonies, where power asymmetries were much greater, the rule of law had similar effects.15 Putting forward an almost opposite claim, Chatterjee seems to be correct when he affirms that the domain of ‘civil society’ and the law is distant from the reality of most of the popular classes around the world (in fact, excluding Europe and—much more arguably, we should add—the United States, and perhaps a few other countries, such as Japan). Nevertheless, he draws doubtful normative and strategic conclusions from this observation: these popular classes would be out of ‘civil society’, therefore, citizenship rights would be truly beside the point for them, who relate to the state directly via ‘political society’.16 It is furthermore necessary to mention that institutionalized ‘illegalism’—of which the upper bourgeois classes are especially fond—has been typical of the modern era, encompassing tax evasion, privileges, frauds, political corruption, racketeering, and so on. This obviously includes even more serious offences and felonies, disregarded or condoned by the courts. It very often features the uneven application of the rule of law, much harsher when it befalls disadvantaged citizens. Sociology took a long time to take interest in white collar and upper-class criminality, concerning itself only with the unlawful behaviour of the popular classes until the 1940s.17 What is more, skewed performances usually have—as a fellow t­ raveller— the explicit infringement of the law, especially by the executive, in accordance with the underlying, whether explicit or not, understated but effective definitions of ‘reason of state’, beyond its Renaissance framework, such as proposed by post-civic ‘new humanism’. This implied sceptical ideas about ‘self-protection’, individual and of the state, big standing armies, large taxation and economic promotion, as well as security measures, with citizens’ relevance downplayed as a collective and virtuous body, the same fate befalling morals. Security requirements and measures were deemed a rationally expedient response to threats, according to such views, eventually under liberal administration. That is, protecting the state has then taken precedence over the safeguard of rights. This remains key for our world, a thorn for liberals, who are not prone to recognize the practices of really existing liberal states.18 Yet these phenomena do not introduce concrete features into law, which remains abstract. They merely circumvent its rule—in its actual application. In this regard, also illegalisms and unevenness, along with

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those intentional state infringements, remain paradoxically within the rule of law for they do not attribute different formal status to individuals, although dissonances and tensions between formality and reality should not drift too far apart in order that things stay plausible (admittedly, naked state and private power can help a lot in cooling down the dissatisfaction of disadvantaged people as well). They stand as an illicit conduct which is tolerated by the modern state or even actively sought by it, albeit on the sly or in open contradiction with its formal definition. This is different, in any event, from what has been called ‘rule by law’. The West has known it—the older German Rechtsstaat was partly  an expression of this sort of legal system, though in principle eschewing arbitrariness. It has been however discussed especially with reference to modern Japan and China. There is a formal legislation in such cases according to which the state should operate in a uniform fashion, but law is used discretionarily against specific state targets (even implying possibly ‘lawfare’ or the ‘abuse of law’). It configures an instrument of state power— and sometimes, in collusion with it, private power—rather than a means to domesticate and limit it, as the rule of law is supposed to do (with legislative autonomy and officials’ protection being decisive in this regard).19 It is closer to what may be called ‘repressive law’, which is used by the state in instrumental terms.20 In many cases, what is presented as the rule of law can and has been disguisedly used as rule by law, more or less subtly, in the West as much as elsewhere. As if to demonstrate how fluid the imaginary is, in modernity as in any other civilization, the rule of law can be put to utterly conservative uses. This is what Hayek did when he, within his fierce pro-market and pro-­ private property neoliberalism, in an almost ‘innocent’ way correctly distinguished between ‘general law’ and specific ‘commands’. He was however trying precisely to forestall the development of a more interventionist state, in either economic or social terms, and the emergence of the sort of issues—dramatically concretely laden—that we must defer to the next chapter. He learnt this from the liberal tradition as such, in particular from its twentieth-century defensive positions, particularly during Germany’s 1920s–1930s crisis-ridden Weimar Republic, with social-­ democratic advances and in which socialism/communism was a real possibility. Nothing except civil rights should be constitutive of law (actually, not even political rights were mandatory).21 In its most immediate aspect, this system of entwined law and state, of which the rule of law is a crucial expression, follows the abstractness of the

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system of rights studied in the preceding chapter, resting to a large extent on their existence. It adds to the abstract countenance of the modern juridical-political imaginary, as both a floating and a more restrictedly institutionally established signification, which commands much of our understanding of political modernity. In turn, even if socially shared to a large extent, as a general social nomos, it is through the configuration of the state, with its abstract legal structure, that citizenship and civic rights achieve the status of a real abstraction. The rule of law turns this nomos into actual or expected behaviour: rights and citizenship are institutionally dependent upon it to have the necessary forcefulness to pass from abstractions that are operative in the realm of the individual mind and the shared imaginary onto reiterated patterns of social interaction. This nomos is obviously and inextricably linked to the behaviour of individuals in their membership in the state, as citizens, in all its manifold aspects, directly in what concerns public law, but also with respect to societal life beyond the legally defined public sphere. It appears here in its manifold juridical elements and endless ramifications, via the general influence of citizenship as a general imaginary signification and especially insofar as private law is mobilized in our individual and collective undertakings.22 These real abstract institutional configurations therefore shape social behaviour to a large extent, without ever exhausting it. However, even if we think of modern law—in a putative future—as resting on the active (intersubjective) construction and consent of all—and in this regard in a social contract or agreement deeper and more democratic than those we have had anywhere—there is no reason to expect that this would imply the internalization of its principles and rules so intensely that internal obligation would be profound, let alone sufficient. In any case, this does not happen today, contrary to what is argued by many sociologists. To be sure, if only external duty is expected, social life approaches a chaotic situation, in which the use of force and violence becomes inevitable. That said, there is no reason to expect that law and its rule play such an ‘integrative’ role that all or most individuals feel compelled to uphold it, with sanctions being triggered, once there is a breach, outside as well as inside agents (respectively, by punishments and guilt, although both may come about). In this regard, the law is evidently a steady means of social ‘control’ and repression, including the use of open violence. In contrast, the degree of commitment of each citizen to it, beyond cognitive recognition towards a normative internal engagement, with emotional investment (cathexis) is highly variable.23

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2.3   The State Apparatus and the Law Few have been as important for the identity of the modern state as jurists. The view of an abstract entity, based on abstract law, stemming from abstract reason, infuses the ideology buttressing their collective identity as a status/professional group. Jurists were in large measure the administrators of the ‘universal’, within a state which claimed its monopoly. Law was its main expression. France excelled in the universalizing rationalization of law, common law Britain privileged its systematization and the stabilization of expectations rather than formalization, with a lower level of abstractness.24 Jurists are not the only ones within the state who are intensely entangled with the law, though. All state officials partake in this, especially regarding administrative law (namely, the part of public law that regulates the state internally and in its dealings with the outside world of citizens and societal processes).25 Concrete issues should remain foreign to modern abstract law, even when precedent is invoked in common law—or at least one can argue this way.26 Two scholars were fundamental for the conceptualization of the modern state, especially regarding its abstractness, Weber sociologically, Kelsen in juridical reasoning, although the latter has come under sustained fire due to his positivism. Kelsen discussed legal statehood, offering a ­hierarchical view of its normative structure. Much of what he said is an idealization of what actually happens in the realm of law-production and application. Even so, he partly depicted one aspect of its definition in modernity as well as actuality. For Weber, the modern state—‘rational-­ legal domination’—was rational because of its effectiveness, legal due to its structuration according to law abstractness. Moreover, what then consisted in the ‘public’ remained putatively walled off from the ‘private’, with the latter formally prevented from encroaching upon the former. Law and the modern bureaucratic apparatus are closely entwined; in fact, one is hardly conceivable without the other. We will start with Kelsen’s ideas, soon engaging with Weber’s perspective. For Kelsen, the main issue was the existence of a ‘basic norm’ (Grundnorm), which is then translated into constitutional law. This is the foundation of the whole legal system (or/also its reason or motive, if we reckon with the meaning of the German word, not only its English rendering, by himself indeed). He did not deny the role of morals and politics in the always possibly changeable nature of the basic norm (at least in the second, definitive edition of his main book), the efficacy, hence

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validity, of which was not assured. But, once in place and efficacious— socially respected and implying actual obligation, a  factual issue that threatens the normative purity of the theory—Kelsen thought the system should be considered according to the adequacy of inferior to superior norms, in almost a deductive manner. Just almost deductively because superior norms—to start with the fundamental constitutional norms—do not necessarily define specific contents and forms for the inferiors: they may rest content with establishing procedures whereby the former are to be enacted, admitting of any specific ‘content’. With these provisos, Kelsen strongly argued for the identification of the state with hierarchical legality and vice versa. The functions and structure of the state, lying on the separation between executive (administration), legislative and judicial power, are entirely legally defined, and this legally defined state rules categorically according to the fundamental norm and the monopoly of coercive force and violence over a delimited territorial space. Even private law is state law, contrary to what natural rights supporters traditionally argued, since this is the very gist of its existence as law, the same evidently obtaining with respect to public law. In addition, in its dynamic aspect, law is created in the application of norms, of whichever rank, to lower and even individual cases (hence the refusal of the—for him—excessively general concept of ‘rule’ to define law). The higher we move up the hierarchical chain, the more ‘general’ (generelle) the norms that organize the lesser ones, which, deriving from those more general, are in the end individualized. Judges should therefore apply law and, while some level of interpretation and law-­making is inevitable, moral or political issues should have no influence on juridical decisions if the legal system is to keep its integrity and coherence. Only in passing and in an unspecified way did he equate general to abstract and individual to concrete norms, but we can at least build a bridge between his views in this regard and Weber’s as well as with all I have stated in this and the former chapter thus far.27 Kelsen’s seems largely a fanciful, excessively formal construction. It has received many critiques, from its main theses through its implicit fundaments and the identification of other sources of law to the idealized picture of the legal system it produces.28 That notwithstanding, whatever its problems, the ‘pure theory of law’ remains a crucial construction of modern jurisprudence. Kelsen fervently stressed legal formalism all along his reasoning. In particular, law was highly de-personalized—including a decisive rejection of the idea of the state as embodying agency (and will, though power, through coercion, was necessarily present).29 Inadvertently,

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he suggested something at least similar to the idea of law as a real abstraction, himself however one of its enthusiastic practitioners. Considered in its whole, law was an ‘ideology’ ‘parallel to a definite reality’, namely, the ‘effectiveness of the system as whole’.30 Note, nevertheless, that, in the actual functioning of the state, there is a gap between what are the general norms of a juridical order and both inferior norms and actual practices, a problem Kelsen simply missed or chose to repress intellectually. The validity of law and the actual performance of bureaucracy should not be confused. Distinct levels of administration are cut across by this problem, but in its abstract definition, as a legitimating ideology, which hides as much as it reveals, law supposedly overcomes this sort of problem, whereas, in real life, it does not.31 2.3.1  The Police ‘Peace, security and order’, there goes the adage, and the modern state should be capable of keeping them neatly. Law as coercion is here fully present, as a background and in principle connected to the rule of law. The ‘monopoly of the use of legitimate force’ or ‘violence’ would be a pre-­ condition of this (force consisting in power based on the threat, or use, of violence—which implies directly harming someone, mainly physically, but not necessarily so). Within its territory, there should be no competition in this regard.32 Pacification, not civil strife or civil war, and the daily conservation of the legal parameters of social life, preserving those liberties, property and the state, detached from politics, would orient the ­intervention of a specific state apparatus. This monopoly of coercion refers to the whole ‘legal community’, including bureaucrats that operate at its core and those that derivatively act in its name. No longer geared towards war, functioning according to law and aiming at its uniform observance and purportedly without discriminating individuals because of their concrete traits, therefore treating them all as abstract citizens, the police are charged directly with this task.33 Note that the police occupy a very particular place in the modern state: they are part of executive power as well as remain at the disposal of the judiciary, ambiguously playing different roles, especially vis-à-vis, respectively, the maintenance of order and the enactment of law.34 As such, the police are an invention of modernity, which took some time to effectively take off. In the beginning, looser and less numerous bodies that did not have a proper bureaucratic character oversaw law, crime and punishment even in countries

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where modernity first set in. The army backed them, as a reserve force or, in the limit, through its utilization against collective challenges to order, violent or otherwise. Petty crime was endemic, but the more homogenous application of law slowly developed. A specific armed force, with light weaponry, was organized to deal with repressive internal affairs. It also depended on hugely increased powers of surveillance, implying an unprecedented level of control of society by the state, its capacity to systematically pierce into daily life vastly augmented.35 If the police have formally had as its task an operation that targets a general, collective goal—peace, order, security, respect for rights and ­liberty—they inevitably have to deal with individual elements. The social pact and contract were meant to create a situation in which all agreed to a certain standard of behaviour, an overarching nomos, all rights-holders being responsible for abiding by that standard, embodied in the law. Once someone stepped off line, the police were expected to intervene and penalize the offender. Yet, instead of unleashing violence in an arbitrary or brutal way, the police are still supposed to recognize the law-offender as a citizen, or at least a potential one, momentarily and more or less fully deprived of its rights. What is formally at stake is the reconstitution of the social pact. In any case, as we will see later, once the individual is taken in the hands of the punitive state apparatus, another figure turns up—who Foucault, for instance, identified as the ‘delinquent’. He or she is then treated not according to a homogeneous and abstract yardstick. Instead, the ‘delinquent’ is now a concrete person whose mending is the goal the system should pursue, hence allegedly bringing it back to a universal and free juridical status (except, evidently, when life sentences and capital punishment are at stake), although merely punishment and incapacitation have increasingly become the rationale for imprisonment.36 As the most salient aspect of law as coercion, the police can issue specific commands so as to enforce it. Threats can be made and negative sanctions applied to those who disobey the law in general and those specific commands. The police, not only citizens, are supposed to abide by strict legal behaviour in their efforts to discharge their duty to uphold it. In this respect, impersonal, abstract and uniform behaviour is what has also come to be ideally expected of police officers. Beyond the police force, in order to guarantee the upholding of law, a more encompassing and complex political and bureaucratic criminal justice system has arisen (it is essentially a refurbishment of previous systems with similar functions—what mostly happens historically). Law-making

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bodies, the judiciary and the police are its main elements, on the whole based on penal law, its production, adjudication and application, with its eminent coercive character. Not all law is command, contrary to what original positivists such as Austin and Bentham, and before them Hobbes, assumed, as seen in Chap. 1. But this is the case of penal or criminal law, which configures a branch of public law and is based on the definition of ‘crime’, ‘criminality’ and ‘criminals’. It relates to the victims, and also to all individuals, as deserving the defence of their rights, mediated by the state, which constitutionally takes up punishment as its task. To be sure, sometimes, depending on how it is conceived, the state as such may be seen as damaged by specific misdeeds. This is, in any case, to a large extent, an exercise of power, since where one draws the line in these definitions and who is selected to be subjected to them is not written in stone. Legally administered pain underpins the logic of the system.37 Deplorably, as it is obvious for any casual observer, the police are far from following exactly the rule of law, and not only in what concerns substantive issues, as mentioned above. Actual rules of operation imply that agents and the corporation as a whole create norms that often contradict even constitutional principles, especially when fragile citizens—the poor and workers, discriminated racial, ethnic and other marginalized groups, often women as victims of men, let alone ‘deviant’ sexualities—are the object of its intervention. Yet, it is not the only bureaucratic agency in which the gap between superior and inferior norms appears. This affects the penal system as a whole, including the courts, with a tendency actually to develop the administrative treatment of cases that should be dealt with abiding by those general norms. Instead, many others are often created, which are heterogeneous or even contradict formally rightful definitions. As already stated, that happens in all sectors of the judicial system, although in what concerns the police this gap may be huge, implying at times radical divergence.38 2.3.2  Law and the Overall Bureaucratic Apparatus Curiously, considering the importance of the theme, we find few theoretical discussions of state bureaucracy in the social sciences. Most of what is conceptually available is still found in Weber’s work. Apart from discussion about the relations between formality and informality, as well as a few more concrete, comparative and updated analyses, there has been little actual progress, with exceptions concerning economic development which I tackle below and some issues raised by ‘public choice’, to be visited in Chap. 5.39

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The first real discussion of bureaucracy was Hegel’s. He cast it in a very positive light, within the bounds of the legal state, depicting it in an empirically informed, though very idealized manner. The bureaucracy was for him a ‘universal stand’ (allgemeine Stand), detached from particular points of view. It had society’s general good as its ‘business’.40 Mill in fact put forward a very similar opinion shortly afterwards, within a more liberal outlook, stressing the means-ends chain in a eulogy about the role of rational bureaucracy in furthering it (though, functioning on its own, it tended to become a ‘pedantocracy’).41 Its abstract character shines through such views and is paradigmatic of a pervasive understanding of what the state was or should be in modernity. This gave rise to a widespread modern ideology, which ceaselessly returns, related to the putative neutrality and commitment of the bureaucracy to the social good and as a rational agent, at the core of state rational expediency. To a large extent, the social sciences took it up. Weber’s account of the origins of formal-abstract bureaucratic rationality is extremely intricate and does not harmoniously fit with his key ideas about his ideal-typical explanations of the surge of new systems of domination. It is somewhat ambivalent too. Innovations for him are usually based on ‘charisma’ and its irrational force. By no means is this the case of formal-­abstract rationality, which grew in a piecemeal way, with several ramifications and through different channels in Europe. The rise of the modern state, which is as such a sort of ‘rational-legal domination’ (the definition of capitalist firms comprised in this) was, rather than the upshot of a rupture, a slowly developing and multifaceted institutional phenomenon, including the influence of Roman, Canon and old German law. Weber articulated ‘rational-legal’ domination (in which Jellinek’s influence is detectable) as an ideal-type, especially in the juridical-political dimension, via a contrast with ‘traditional’ and ‘charismatic’ domination, a strategy which, unfortunately, he did not detail. He did not present a conceptual explanation for its emergence either, simply describing it. For Weber, all things considered, rationality overall increased, giving rise to what was not a positive development: it set humanity a trap, locking it in an ‘iron cage’ wherein meaning and freedom were suppressed. Weber focused exactly on those formal-abstract features of the modern state, a crucial issue in his definition of ‘rational-legal’ domination, further introducing a tension between formal and substantive (‘material’) aspects of modern law, which imply concrete elements.42 We will examine that tension in other sections of this book, a point which, incidentally, Kelsen did not bother to elaborate, despite Weber’s profound influence on his work.

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Among the elements Weber listed to define ‘rational-legal ­domination’— at the core of which lies modern bureaucracy—we find instrumental rationality, that is, efficiency; formalism and neutrality, increasingly troubled by historical developments; the impersonal selection of officials and the impersonal relation they entertain with the public; orientation according to abstract law and specific training of officials to rationally accomplish their tasks; internal hierarchy (impersonal), division of labour, competence and qualification. To be properly tackled, administrative tasks must be carried out in a stable, intensive and calculable way, with officials being well-disciplined and liable to punishment. They are in particular separated from the ‘means of administration’ and hired according to a free formal contract (just like Marx’s proletarians), being forbidden from using the state in their own benefit, that is, a prebendal approach is ruled out. This was crucial for the public characterization of bureaucratic administration, which includes the civil administration of the state and the judicial body, the police and the army. If the origins of rational-legal bureaucracy underpin those of the modern state, it tends to increase in scope and intensity, in quantity and quality (besides, democratization entailing bureaucratization).43 The relation between rational-legal, traditional and charismatic domination moreover summons the enchanted character of the modern imaginary, through precisely what I have called the paradox of rationality—that is in part because this is taken in its absolute purity and as totally detached from magic. If rights and citizenship are at the core of this imaginary construction, rational-legal domination is not foreign to it. While Charisma is ‘magically conditioned’ (magisch bedingt), this is precisely the opposite of disenchanted, which is the case, implicitly, of rational-legal domination. The former is socially understood as bestowed by God. It is not linked to the magical means of salvation. The latter would have fully left this behind, entering the realm of pure reason.44 Weber dreamt of recovering an already attenuated sort of charisma, as we will see later, in a sort of ‘Cesarist’ leadership that could lend meaning to politics once again. Agreeing in the main with Weber’s characterization, Mann observed that only piecemeal did this style of bureaucratic administration evolve, even in the most advanced European countries, until it became really dominant in the twentieth century, supplanting patronage systems, even though it still fluctuated and remained uncertain, for instance in the US.45 In turn, Silberman’s delineated two different types of rationalization, especially in relation to knowledge: according to the control of ­information

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exerted by individual professional officials, more generally trained, in the ‘service of public interest’; and following a more collective and homogeneous organizational control of information, with the same ideational background and including more bounded career paths and internal training. Both implied opacity vis-à-vis society at large.46 It should not be overlooked that informal ties and courses of action are essential to the dynamic—and efficiency—of any sort of bureaucratic organization, as post-Weberian scholars underscored. But even this informal dimension is directly dependent upon the formal organizational structure.47 Note also that rationality is not as straightforward as Weber probably thought it was: it is in reality bounded rationality, evincing a variable level of opacity as to its environment and to itself.48 It is not, because of that, less rational-instrumental, less oriented to the means-ends chain in terms of efficiency. This is a hallmark of modern bureaucracy. Contemporarily, this idea of bureaucracy, such as suggested by Weber, is most conspicuous in what regards formulations about its role in economic development outside the West, East Asia standing out in this respect. A rational-legal, very efficacious bureaucracy is deemed responsible for the overcoming of underdevelopment in a number of countries, South Korea and Taiwan above all. It would be decidedly non-patrimonial and detached from society, at the same time open to contacts with it on a permanent basis. For Evans, it operates with great ‘autonomy’ from societal agents, though it is, perhaps paradoxically, socially ‘embedded’. Conceptually, this is a mix that may be, in the end, difficult to pinpoint, although it seems clear that the key variable to be considered is autonomy, which allows for the social embeddedness of these bureaucratic bodies without its capture by external agents. Specifically, these state officials are rational, but do not necessarily operate in a legally uniform way, since they can be rather discretionary. Nor is this bureaucracy neutral insofar as economic development consists in its explicit substantive goal. It appears in this account sometimes as the carrier of the spirit, perhaps not so universal any longer, and regardless of more explicit political injunctions.49 In the empirical cases of South Korea and Taiwan, this seems a plausible explanation, with the proviso that many other factors, especially geopolitical, as well as country size (both of them being small), must be added to the picture. However, to hang, conceptually and normatively, the social-­scientific debate and projects of development on this almost Hegelian-­Weberian picture of bureaucracy is not warranted. This is shown by the developmentally very successful case of the Popular Republic of China, with its huge size, ‘rule by law’ and ­deep-seated

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(neo)patrimonial features, while India and Brazil, with similar characteristics in terms of size and (neo)patrimonialism, feature as intermediate cases of developmental accomplishment.50 This developmental view has been as of recently a specific sociological ideology about the state, unilaterally stressing what is merely a partial characterization of its modern apparatus. The most general view is that according to which the immediate abstractness of the state embodies its ultimate truth. It is therefore still one of the most general ideological misconceptions about it. Like that more specifically sociological ideology, it is also a social construction that veils as much as it reveals about some key features of the operation of the state in modernity. It consists in a reification, carving out a fetishist perspective of rationality and power as removed from and aloof to concrete social agents, whereby it guarantees the impartiality of the state. This has seduced a great many minds and practical agents in the course of the development of modern civilization. That is not to say it is absolutely untrue. As is invariably the case, ideologies that legitimate any sort of social relation are plausible only insofar as they correspond in some degree to reality. Besides, the modern state is indeed detached from society, with its bureaucratic agents sustaining a view of its disinterestedness and public duty that is reflected at least partly or even fundamentally in their behaviour, which can embody a high level of ideology (in the case in point developmentalist).51 It is worth observing, in any case, that in modernity we can hardly find states that are not based on bureaucracy, whether liberal-democratic or openly autocratic—at least in the surface formally abstract and legally bound ones, even under circumstances of exception in which anything resembling the rule of law is thrown out of the picture. The South American military dictatorships of the 1960s–1980s make this clear, whether they were committed to development or not; even Nazi Germany, let alone Fascist Italy, more accommodating, could not do without traditional modern bureaucracy.52 More recent adjustments of the state have not departed from these abstract arrangements, nevertheless lending them a twist. They characterize what was called ‘New Public Management’ (NPM) and appeared as a post-Weberian or even post-bureaucratic renewal in which neoliberal, ‘public choice’ and market-inspired, post-Fordist reforms were applied to the functioning of the state. A number of negative elements often undergirded and cropped up in this view: distrust of public officials—taken not as agents concerned with values, honour and mission, instead as self-­ interested individuals—who supposedly permanently try to maximize

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their power and career paths; the introduction of quantitatively based evaluations of results (according to criteria of ‘economy, efficiency, efficacy’); the transformation of citizens into clients and consumers; and the general perspective of shrinking the state and concentrating its activities in core areas, in some cases via outsourcing. The defence of reform included the need to make administration more flexible and, at least rhetorically, responsive. From the 1980s on, they swept the world, primarily in Anglophone countries. Over-centralization, despite desire or rhetoric, has often ensued from efforts to enforce such reforms and keep a close watch on regular activities thereafter, instead of leading to more flexibility. In a number of cases at least, this has implied unintended and unwanted outcomes of the very process of change.53 More directly related to issues that are essential to this chapter, it is important to note that if the features of Weberian bureaucracy—­supposedly an anachronistic attachment to rules and rituals—were challenged, in their place market abstractions related to the ‘eee’ criteria as well as cost-­ effectiveness and quantitative results superimposed new abstract criteria upon those formerly in place, rather than doing away with them.

2.4   De-personalization, De-politicization, De-substantialization As suggested at the very beginning of Chap. 1 of this book, the modern state is a form of organization of power in which what is called politics, the political, the polity, or however one decides to name it, assumes an autonomous existence, disconnected from social life by and large and assuming a juridical crystallization. An insulation of the state in particular from the economy is crucial, further constituting an autonomous ‘civil society’, with its concrete interests and passions, joint endeavours and struggles, victories and defeats. This is a very particular way of organizing power relations and evidently does not exhaust them, for in this ‘civil society’ they carry on alive and kicking. We have just examined how the state bureaucratic apparatus shares in the abstractness of many other aspects of modernity. If bureaucracy, as the core element of the state, alongside law, has been explicitly defined as apolitical, when it comes to other types of public officials, which stand above the bureaucratic apparatus and rule over it, the issue becomes more complicated. In fact, de-politicization and a process of abstraction were also introduced in the superior, political

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l­ayers of state power, although society’s concreteness should be expressed within the state through those politically responsible public officials. There is, for sure, a paradoxical demand and expectation in this regard. Liberalism engendered and has been at pains to solve this internally puzzling issue. Internal pacification and the exclusion within its boundaries of enmity as a legal concept have been deeply important for this. Policing, so as to bring about civilized behaviour, rather than politics and the strife around values—of the sort that had been aroused during the brutal early modern civil wars—has been supposedly crucial in the inner workings of the modern sovereign state. This was an intellectual and practical achievement of liberals, regardless of other (concrete) political goals they pursued and were keen to ‘neutralize’ in favour of abstract individualism and legalism, as well as substitute competition and calculation on the one hand and on the other enlightened, rational public debate, for struggle.54 In its radicality—which imperfectly reproduces a diagnosis of liberal economics—the formula may be stated as suggesting that ‘all social relations would be automatically adjusted’, no further intervention being required, with politics and power sidelined as of lesser importance.55 Indeed, the role of politics, however defined, could not but play a minor role in the construction of the rational-legal state. After all, it was built as merely a bulwark against the oppression of one individual by another—of A over B and vice versa, as we discussed in the former chapter in relation to fundamental rights. The aforementioned monopoly of legitimate violence was a necessary condition for this outcome, providing that it was legally domesticated. The space-time conception of the pristine liberal state implied that its sovereignty over a territory was geared towards keeping the future just as it was in the present, and the past actually too, the moment of creation of the social pact, when the contract enacted by individuals should preserve what was always already their cherished liberty, or creating and henceforth protecting it. Preserving that freedom and the specific, mostly private, contracts thereupon enacted was the liberal state’s foremost task and role. It should also be built in a way that left no room for the introduction of oppressive relations between its apparatus and citizens. Of course, many issues have troubled the trajectories of specific states and the lives of their citizens. These must be answered by the state with specific means. This is particularly important once we leave the bounds of sovereignty and enter the international stage, where war looms large. Yet, this is a sort of aftertaste, since the role of the liberal state should not extend beyond contingent

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and in principle not numerous issues, that is, it should not go much further than simply upholding the rule of law. In a moment of innovation, political power was established as supposedly bereft of any concrete feature, something more easily said than done. This was just the opposite of what was characteristic of the Absolutist state, in which the king was an immutable and concrete incarnation of power, both earthly and divine. Europeans had trouble understanding how the savage Amerindian societies they conquered in the sixteenth century dispensed with the concrete ‘exterior’ figure—the chief, the king, the despot—which, for them, hierarchically organized the space of power and law. This was an ancient heritage that achieved its heights just at the moment of the conquest and colonization of America, with Absolutism. In a curious turn of events, Europeans would eventually develop a fully rounded and autonomous political dimension a few centuries later, in which law reached pre-eminence. In the same process, that concrete hierarchical figure formally disappeared. At the exact moment of its constitution as such, politics becomes definitely abstract, insulated from the concrete processes that unfold in ‘civil society’, though citizens become the bearers of sovereignty, with the concomitant disappearance of political masters and servants. This also implies the de-personalization and de-­substantialization of the state as well as a total lack of identification with any specific person or societal trend, as a means of controlling, subduing state power, something that affects the representation of society in and through the state. The place of power should now remain empty. This means that it should not ever be permanently captured by any one; more ambiguously—that is, either formally or absolutely—the concrete embodiment of power in particular bodies and personalities as such threatened the abstract universality of this modern state. As the actual expression of state power, they should be subdued, except for the aristocratic exercise of lofty reason. In a sense, the emptiness of the place of power eschewed its very temporary occupants in their concrete individuality and as representants of specific interests and desires, especially regarding executive power and in what concerns the production of rational law.56 Evidently, this is impossible and has entailed a lot of tension for the very workings of political modernity. It has promised further developments. In principle, there can be no ‘exception’ in this regard, that is to say, no one can take over from those abstract individuals, even those at the apex of power, and impose its will on society and state: formally, there is no legitimate arbitrary ‘decision’, by a concrete agent, contrary to what

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Schmitt was wont to affirm, insofar as, of course, we remain in the universe of liberalism.57 It is true that constitutional monarchies represent at some level the survival of a substantially embodied representation of the collectivity, consisting in an element of hybridity originally in the region of the emergence of modernity as a civilization, insofar as it is heterogeneous with respect to liberalism. Hegel’s forced solution in the endeavour of making princely power fit the framework of the modern legal state—as personified and as the ‘ultimate will’, lending organicity to society—is revealing of the difficulties this type of mix entails, despite his very modernized view of its functions and principles of legitimacy (nothing to do with ‘divine will’, of course) as well as enduring power, especially in Europe and a number of other countries across the world. The same may be said of Mill, once again his liberal fellow traveller, when the monarchy is connected to some sort of representation as a protective instance against parliamentary (and deep down popular) sovereignty.58 What this really means deserves, however, further inquiry. Can political modernity, liberal in its basic institutions and to a large extent in imaginary terms as well, move beyond this sort of paradox? Or is this a problem, and a nagging one as we will see, bound to remain forever with it? All depends, to begin with, on whether political power as such—now distant from its specific juridical expression, that is, such as extant in the executive and legislative power in opposition to the judiciary—is consistently capable of maintaining this de-personalized, de-politicized and de-substantialized emptiness. Of course, in real life we know—because we experience it in different ways—that this is at most partially true: we deal with actual human beings and collectivities. Yet our typifications of abstractly conceived individuals as both citizens and officials, unelected and elected, furnish the cognitive framework of our perceptions, of the normativity and expressivity—or lack thereof—according to which we are supposed to behave and expect others to behave. They furnish a background and a horizon for our daily dealings. The abstract ‘generalized other’ we found out in the previous chapter makes its presence felt here, in an even more encompassing connection. As we should expect in relations wherein domination prevails, there is enchantment, but there is also the consciousness of differential power. It goes beyond the formally equal relations between individual citizens and this state-related ampliation of the abstract generalized other, in which particular and powerful elected and unelected officials  have a key role to play. It is precisely this abstractness that has eventually come to hang on a balance, as we will still see in this and the next chapter, though state power has, if anything, increased.

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2.5   Towards Political Rights and Representation We saw in the previous chapter that law is an element of mediation between citizens, individuals invested with legal rights and actually legally constituted as such, enjoying originally the same power. This is framed abstractly and operates within the bounds of universal-abstract citizenship, also opening a large array of concrete acts and doings in the private domain. They are in principle beyond the reach of the modern juridical-political power, that is, the state. Initially, mediation appeared in the relations between citizens through law while, in what concerns relations between citizens and the state, we have already moved towards a sort of external mediation, within, in any case, the universe of formality and abstractness. We must take a step further. Mediation will now be decidedly external. We will leave the realm of formality and abstractness, although our immediate move will consist of an extension of the idea of citizenship with respect to universally abstract and abstractly universal citizens. In the ambit of the legislative and the judiciary, the concrete comes up in processes of mediation to a large extent as the point of departure in the case of the former and as the endpoint in the case of the latter. In legislative activity, representatives, linked to specific constituencies and with their particular, concrete characteristics, deal with issues whose concrete ingredients they ideally sublate, taking them to a legally general and abstract level, through dialogic, rational debate. This was a difficult move for liberal thought, very arguable, almost an act of prestidigitation. It must be enacted and accepted somehow in order that the whole framework makes sense, but its success cannot ever be absolute; moreover, nobody really believes it. In what refers to the judiciary, individual sentences are passed by specific judges, in their concreteness. General abstract law must rule, inevitably implying, on the other hand, some level of law creation (Rechtserfindung, as it is revealingly expressed in German). In a sense, it is true that law is what courts do of them, contextually.59 This—and the possibility of more extended interpretation, to be discussed later—was not of easy acknowledgment by liberals either. In relation to executive power, concrete issues and incumbents are inexorably of paramount importance and have been therefore harder to deny. This refers to the bureaucracy, including the police, which in some measure have to grapple with specific issues (in the case of the latter on a regular basis). Clearly, it is politicians who stand out here: their personal and collective belongings and features cannot be wished away. This difficulty, implying a dialectical and developmental tension

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between abstract and concrete, is internal, by no means external, as some are at least implicitly prone to believe, to political modernity, including its main liberal expressions, irrespective of the latter’s original rejection of and perennial inclination to efface the second term of that pair. It is at the juncture between politics and society that it first seeps through. In the well-known Marshallian description of the evolution of citizenship in Britain, political rights appear as following the establishment of civil rights.60 Historically, things are much more varied, and the meaning of political rights more complicated, especially as a consequence of curbs on the franchise—hence the subtraction of democracy—everywhere for a long time. This restriction usually implied a difference between ‘active’ and ‘passive’ citizens, with the latter excluded from political rights due to their lack of personal ‘independence’,61 although this might even be seen as contradictory with the very idea of citizenship. Overall, political rights were considered by liberals merely as a means of control of the state, preventing it from becoming an oppressive force, that is, preventing its return to the despotic status quo of the Absolutist state. Taxation by the state— how and to which extent it was to be implemented—was a paramount issue in this connection. Apolitical, the functions of this state would consist in internally keeping peace, order and security, as well as the observance of contracts. Likewise, externally, it was supposed to mediate the relation of the territory and people which it rules with other states, with a modicum of taxes supporting its law and order activities. As Locke, the paradigmatic liberal thinker once put it, what really mattered was ‘the Power of making Laws’.62 The problem is that the legal state remained shot through by political elements. Even the production of law was dependent upon it. If the king and citizens underpin such processes, in constitutional monarchies and republics, more generally, concreteness cannot but affirm itself first of all via representation, in a way such that the represented recognize themselves in those who purportedly represent them—what may be defined as the identity element of representation. It does not stop there, though, because representatives have to answer the concrete issues that interest (in both a general and a specific sense) those who they represent, although the rationality of representatives was often seen as capable of taking what resulted from them to universal-abstract heights, beyond such immediate and dangerous specific and mundane conditionings.63 Political representation is, therefore, as such constituted by the tension between the concrete and the abstract, with politics made explicit, since the unchanging

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s­ pace-­time project of the liberal state (in that past and present were to be simply reproduced in the future) was beset by the daily and historical contingencies, particular interests and dynamic, of concrete social life. A solution for this dissolving plurality of concreteness was to assume majority rule as a feature of representation, from Hobbes to Mill and thereafter, whereby a common and concerted will would be formed.64 This momentous development has challenged the idea of a de-­ personalized, de-politicized and de-substantialized space of power which liberalism celebrates. Instead of an empty, universally abstract space, the particularities of those who represent and are represented fill the political scene. Space-time becomes dynamic instead of static. To achieve success and politically represent citizens, politicians must somehow ‘become collective representations’ and create identities between representatives and who they represent, through performative acts of reality construction that bank on ritual, mobilize psychic energy and investment (cathexis), produce symbolic meaning and bring societal concreteness into the political system.65 Thereby, identity—as between the represented and the ­representative—is created. This has happened within and according to, rather than without and against, the logic of liberalism and political modernity, with an exterior (concreteness) turned interior, in a manner that is only superficially paradoxical. This second element of mediation leads us from the abstract world of civil citizenship and law towards the encroachment of the concrete and particular features and dynamic of societal life upon the state. There have been many ways in which representation has been considered. Its meaning and form have mutated; it is very magmatic, consisting in a slippery and multifaceted notion. Content is however the key element that concerns us at this stage. It introduces a tension between the formal elements of citizenship and the state on the one hand, and the concrete elements of societal life on the other, evincing the split nature of modern civilization. It thereby infuses politics with a dynamic which is problematic for the liberal state, which should be tasteless, odourless or colourless. Instead of social peace, achieved by the contract that took us away from the state of nature, we risk sinking into civil strife, due to the transfer of particularized elements of social life, characteristic of its concreteness, into the explicit political dimension of the state—that is, the legislative and the executive—constituting a state public sphere, beyond law, as such. For some, this would have been formerly mediated by the construction of a societal public sphere (initially literary, then political). But the direction of the movement is unmistakable: from the dynamic and particular elements

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of societal life—‘civil society’—we would ascend to the societal public sphere and, from there, enter the state public sphere, in which political representation would be accomplished. How could the modern liberal view of citizenship, state and politics cope with this threatening situation, in which a re-politicization, as it happens, first-time politicization in a strong, specific—modern—sense, is thrown up? The trick originally consisted in affirming the rationality, abstractly conceived—that is to say, detached from concrete interests—stamped on representatives (in their ‘enlightened public debate’). For the trick to work, representatives should first of all be seen not as representing their specific constituencies. Instead, they represent the ‘people’ in general, or the ‘nation’; however these variable imaginary figures of modernity are conceived. To some extent, this implied a re-­substantialization, in which the individual or citizen enjoyed some collective belonging and could not be reduced to an entirely abstract subject, with the proviso that those collective entities were large enough to efface particular interests.66 In both the societal and the state public sphere individuals would be present, but not with potentially conflictive standpoints, based on particular interests and demands. Instead, they were supposed to make use of a disembodied sort of reason, aimed at general interests and the societal well-being, although particular issues and demands surfaced (and even if for some, such as Hegel, as aforementioned, this would actually be the task and prerogative of the bureaucracy as a ‘universal stand’). Representatives initially were considered as not, in any event, bound by the specific commands of their electorate, regardless of the fact that those whom he represented had ultimately to authorize him (only much later was a ‘she’ allowed into the picture). The ‘principal-agent’ relationship reappears in this connection (as if in a contractual relation). The degree to which the ‘agent’ has latitude to operate varied significantly, however, in the case of freely acting representatives being very high in relation to the ‘principal’, that is, voters, he represented, whereas increasingly parliament and similar bodies were supposed somehow to more or less thoroughly mirror the population they represented. They were free to take rational, even more disembodied decisions about issues concerning the collectivity. Enthralled by that disembodied perspective, representatives were elected and had, contrary to its noble requirements, somehow to take into account their electorate’s wishes and interests, though.67 Freedom of thought and speech, as well as enlightened debate within and without parliament, classically underpins this connection in liberal

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political systems, as we see in authors such as Burke or Mill, the founders of the US and other liberals, ambivalences and misgivings notwithstanding, especially concerning what the latter feared, under de Tocqueville’s influence, as a possible ‘tyranny of the majority’. Note, however, that political rights did not apply to backward peoples, including the inhabitants of British colonies. For them despotism or guidance were the solutions.68 This is how political citizenship rights initially found their way into modern—actually liberal—thought. Once elections for those who would represent the people in possession of enough rationality to be represented were carried out, consent, actually to be ruled, was implicitly assumed. Henceforth, the elected—putatively—representatives would hold power over electors; a far-reaching modern innovation in relation to how offices and their holders had thus far been considered. A particular body of citizens was now trusted with the exercise of law-making and actual political power, slowly conforming a new aristocracy or, conversely, what must be more adequately considered, overall, a new oligarchy, whether it may be some day duly democratized notwithstanding.69 We know that representation, in its historic embodiments, was initially opposed to democracy—which was supposed to be directly exercised. Only after a large and tumultuous voyage was it assimilated to a democratic perspective, with some remaining adamantly recalcitrant in this respect. From liberals such as Madison, Burke and Mill, to contemporary liberal ‘elitist’ and democratic authors, a long path has been trod, despite Rousseau’s misgivings and denunciation of representation, unknown to the ancients, as just another form of unfreedom and top-down domination.70 We will deal again with such issues when we tackle political systems in Chap. 4 and political regimes in Chap. 8. With a system of restricted franchise, a politics of ‘notables’ and limited representation could more plausibly pretend to be above particularities and concreteness—in that only theirs was therein represented. The democratization of representation made this absurd. Henceforth the plurality of elements of social life marked not only the passive citizen and not only the active citizen. Also, their representatives or even the more direct links between society and state received its imprint, although the abstract view of representation has tried to restrict this to a minimum. The dual individual we examined in Chap. 1 came to the fore, to the chagrin of thinkers such as Arendt, who would like to keep a strict separation of public and private in the constitution of the political sphere (annoying concrete things such as labour and its predicament kept hidden in the latter) yet had

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to reckon with the overwhelming presence of the social question and eventually of many others in the former. If the social question exploded already in the course of the Jacobin phase of the French Revolution, the concreteness of social life pushes against the abstract pristine countenance of politics in a much more permanent and intrinsic way.71 Mill was eventually the author who forcefully expounded a concept of representation according to which the nation should be represented in parliament in its plurality, representatives supposed to advocate their concrete interests, with an expanded and universalized franchise.72 Dahl’s pluralism resumes this perspective of representation. Diversity of interests and views as well as enlightened debate in a situation of free speech and public manifestation play an essential part in  his concept of ‘poliarchy’—the government of many or of most. Much more restrictive but closer to some classical exclusionary and top-down preferences, Schumpeter’s elitist standpoint provided a harsher solution, in which, with voters taken as semi-idiotic citizens, rationally capable of concerning themselves only with local and immediate issues, competing ‘elites’ rule from above the representative system, shaping what amounts in point of fact to a very oligarchic system, with rather limited democratic features. More recently, against renewed elitist views and espousing the advocacy model, Urbinati’s is yet another answer. She proposed a strongly politicized view of democratic representation (not only of government) rooted in a ‘communicative’ ‘circularity between state and society’, developed on a daily basis and in extended time (not merely at the moment of the vote). She deems it a form superior to direct democracy.73 Executive power was not phrased as a great concern of modern political thought in its beginnings. Main thinkers were particularly and explicitly concerned with law-making, that is, legislative power (this surely on occasion leading to heated debates, usually against the backdrop of Absolutism). Locke briefly spoke of the practical ‘prerogatives’ of executive power, without further elaboration, though he clearly hinted at security and collective self-preservation. For Rousseau, the executive inevitably had to deal with concrete issues in periods (apparently short) during which citizens, that is, the ‘sovereign’, were not gathered. There was, in any case, no ‘contract’ between them and sovereignty was never released. ‘Government’ was supposed to benignly and intuitively grasp what was it that the ‘general will’ wanted during those intervals, although it was, as one could imagine, always displeased with assemblies and executive power could become abusive, he eventually recognized.74 American federalists were

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more cautious about this, detaching the president’s election from direct popular influence, which they feared and were eager to neutralize. The production of abstract law was their main concern, alongside its application by impartial courts (magistrates); executive power ought to be subdued. The singular reference to the importance of executive power at the French revolutionary moment was, tellingly, that of a ministry to the deposed king.75 Why is that so, such strange disregard for a massive site of power? We may suggest that this stems in some part from a hidden, or at least tacit, continuous expectation that the executive would simply hold to the heritage of its rational utilitarian expediency—caring for the general good of society—which needed to be constitutionally domesticated. No further ado would be necessary, although as time went by the issue became more pressing the more the state explicitly came to the fore of social life. A sort of self-denial about the actual exercise of power probably sneaked into liberalism as well, with several and serious obfuscating effects. In other words, the concreteness of executive power—deposited in a single ‘magistrate’ and extremely singularized especially in presidential republics—and of its tasks was somehow out of focus at this stage, especially at the conceptual level. We had to wait a long time until executive power, increasingly salient, was properly framed in liberal thought. It is as if liberalism could not recognize it in its full significance. Yet, whereas assemblies represented the manifold and fragmented ‘spirit’ of the country, elected presidents were the individual ‘incarnation’ of the collectivity, standing in an immediate and personal relation to it; anointed, as by divine right, by the people themselves through election and enjoying enormous political and administrative power thereby.76 Later on, a direct—­organicist—identification between the ‘leader’ and the ‘people’ or, mostly, the ‘nation’, as we will see, eventually including the state in the equation, spread out, especially in relation to executive power, challenging however the standard picture to which liberal thought tried to cling (often privileging parliamentarism versus presidentialism, or weakening the latter in order to check its personalized pre-eminence).77 In all these cases, especially with regard to executive power, since one person alone fills the supposed empty place of power, one specific mechanism in particular is at play at the imaginary level: condensation, though displacement may also be a part of that. As Freud once theorized it, a symbol may condense diverse meanings, adding one to the other and transforming them, at times leaving aside other elements. It can also displace meanings which are not, for whatever reason, warranted (his own thought

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dedicated to sexuality). Concrete elements as well as even abstract ones may thus contribute to a substantialization and personification of power, in shifting forms of construction of the imaginary in political modernity.78 Presidents and parliamentarians, judges and prosecutors, or whoever else may therefore embody—‘represent’ (vorstellen), such as phrased in original Freudian psychoanalysis—specific desires, memories, demands, solutions and paths for specific collectivities, including very large ones. It is important to note that, like civil rights, political rights are part and parcel of the enchanted universe of modernity, initially examined in Chap.  1. We believe in our sheer rationality—or lack thereof—and this reappears in our relation to representatives. If civil citizenship is foundational in this regard, political citizenship cannot be totally eschewed, otherwise a contradiction ensues, through which cognitive dissonance creeps in. Juridically free people should be entitled in principle to decide their own destiny. One set of rights would match the other. Again, it is indispensable to contemplate the whole picture: recognizing the enchanted character of citizenship, now in the political dimension, does not detract from the emancipatory elements present in political rights and representation. This is nevertheless only a half-truth. As an extension of civil rights and citizenship, political rights and citizenship expose as much as they hide, especially insofar as we account for the role of the state apparatus as a reality that cannot be reduced to the social compound once imagined by Enlightenment authors, with political domination, either through bureaucratic or, more directly, political elements, consisting in an inescapable feature of modernity. Many other elements are required to tackle these broad issues adequately and thoroughly. Political parties, in particular, have been paramount for the representative system. When we discuss the modern political system in later chapters, we will return to this issue, which is simply necessary to mention here. Let us for now retain representation as a key element of mediation—perhaps today a faltering one. Classical forms, related to the executive and the legislative, are not its sole expressions. This will be driven home in the course of our further analysis. The link between concreteness and abstractness has been, however, established now. Both historically—with the advancement of political citizenship in terms of democratization—and logically—as regards its weight in social life and with respect to the analytical categorial exposition—this will summon the unavoidable penetration of the latter by the former.

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The introduction of representation at this point as an analytical category is therefore not arbitrary, likewise sovereignty at the end of the previous chapter. They are not premised on the imposition of an external logic on the specific material that shapes the political dimension of modernity. This is precisely what Marx criticized in Hegel’s Philosophy of Right, which I have quoted above at a number of steps. In a bid to amass support for his cherished Prussian state, Hegel searched for a reconciliation of elements (interest, power and reason, private and public, class, stand, citizen and prince) whose tension and eventual practical conflict cannot, in reality, be ideally overcome. In the end, the state, representing the ‘spirit’, was suddenly superimposed on social life, Rousseau’s social contract discarded and the rights-holding individuals from which Hegel was working up to that point grasped that only in the state’s bosom was their freedom realized, moreover insofar as they recognized their duty first of all towards it.79 Instead, the contradictions between those diverse elements are revealed in the unit of contraries they socially institute and must be theoretically retained. The transition expressed via the category of ‘representation’ is, accordingly, both logical and historical (to a limited extent only, undoubtedly, except if we adopt a unilinear evolutionist interpretation of Marshall’s three aspects of citizenship). That logical aspect, nevertheless, corresponds to the fabric of political modernity, in that the concrete elements of ‘civil society’ project themselves over the abstract structure of the modern state, characterizing a transition to a more complex and slightly more universally concrete element (as the ‘sum of many determinations’) of this categorial exposition.80 With this second transition, we keep moving and avoiding the risks of reification of the real abstractions we have been tackling.81 To be sure, as we have seen in this chapter and as will be further articulated later on, the constitution of the state in its autonomy was correctly identified by Hegel (no inversion to place ‘civil society’ as its truth is in this regard really sound). But here we must bear in mind the phenomenological issues discussed in Chap. 1 and how representation partakes of the same construction, according to which it expresses the social dynamic within the state. In addition, this is in fact unevenly true, since the state is somehow subordinated to society’s dynamic in modernity, hence such relationships are by no means mere deception. If Chap. 3 will tackle concreteness as to citizenship and attendant state features, Chap. 4, already in the second part of the book, will directly extend these issues in what regards the full categorization of the political system.

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Notes 1. Immanuel Kant, Metaphysik der Sitten, in Werke, vol. 8 (Frankfurt am Main: Suhrkamp, [1797] 1977), pp. § 45, pp. 430, §§ 47–49, pp. 433–36. 2. Georg Jellinek, System des subjektiven öffentlichen Rechte (Tübingen: Mohr Siebeck, [1892, 1905] 2011), chaps. 1, 5–7; Idem, Allgemeine Staatslehre (Berlin: O. Häring, [1900] 1914), pp. 283ff. 3. This was crucial for the concept of ‘rational-legal domination’ in Max Weber, Wirtschaft und Gesellschaft. Grundriβ der verstehenden Soziologie (Tübingen: J. C. B Mohr [Paul Siebeck], [1921–22] 1980), Part II, chap. 6 (as well as in the following chapters, especially for the contraposition with patrimonialism). A recognition of the legal separation of the private and the public spheres, somewhat watered down due to his stress on public opinion, appears also in Jürgen Habermas, Strukturwandel der Öffentlichkeit. Untersuchungen zu einer Kategorie der bürgerlichen Gesellschaft (Frankfurt am Main: Luchterhand [1962] 1990), chaps. 10–11. Even an author so fond of the ancient division between public and private recognizes the incommensurability between Greek, as much as Roman, and modern conceptions. Hannah Arendt, The Human Condition (Chicago: The University of Chicago Press, [1958] 1998), chap. 3. She did not, however, underline the role of law in the latter’s emergence, partly a Roman heritage, a capital issue for Weber (op. cit., Part II, chap. 7). 4. Jellinek, System des subjektiven öffentlichen Rechte, chap. 3; Allgemeine Staatslehre, pp. 3–4, 169–72, 180–82, as well as chaps. 3–4. His concept of collective subjectivity—namely, the state as based on a ‘unity of purpose’ and evincing a ‘unitary will’ and capacity of societal organization—is thoroughly traditional and inadequate, except in a very limited sense. Although he notoriously spoke of ‘rational-legal domination’, as I discuss below, Weber (op. cit., pp.  6–7), implicitly contra Jellinek, wanted to methodologically and contradictorily reduce the state to the ‘meaning’ active individual agents attributed to it. As mentioned in Chap. 1, Kelsen’s formal solution effaced the problem. 5. Quentin Skinner, ‘A genealogy of the modern state’, Proceedings of the British Academy, vol. 162 (2009); Chris Thornhill, German Political Philosophy: The Metaphysics of Law (London and New  York: Routledge, 2007). The original formulation appears in Thomas Hobbes, Leviathan: Or the Matter, Forme, and Power of Common-Wealth Ecclesiastical and Civil (Cambridge: Cambridge University Press, [1651] 1996), ‘Introduction’ and chap. 16. Lack of a proper concept of the state is the more astonishing, considered his authoritarian legal reformism and his theory of command and sovereignty, evincing, however, his liberal frame of mind, in

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Jeremy Bentham, An Introduction to the Principles of Morals and Legislation: The Collected Works of Jeremy Bentham (Oxford: Oxford University Press, [1789] 1996), passim. Legislation should solve everything. He mixes community, sovereignty, legislation, political sanction, short-term administration and state without specifying what the latter meant, the police receiving specific attention, though, alongside individualist nominalism. Bentham inaugurated what would later become the neoliberal-utilitarian denial of the actual role of the state. 6. Cf. Jellinek, Allgemeine Staatslehre; J.  Habermas, Fazität und Geltung. Beitrag zur Diskurstheorie des Rechts und des demokratischen Rechtsstaat (Frankfurt am Main: Suhrkamp, 1992). 7. Levellers, ‘Agreement of the People’ (1647), in The Putney Debates (London: Verso, 2007); John Locke, Second Treatise (1689), in Two Treatises on Government (Cambridge: Cambridge University Press, 1988), chaps. 10–12. For the separation of powers, see Charles de Secondat de Montesquieu, De l’Esprit des lois (Paris: Gallimard, [1758] 1995), Book 11, chaps. 4, 6; Alexander Hamilton, ‘Federalist no. 9’, in Terence Ball (ed.), Hamilton, Madison, and Day: The Federalist, with Letters of Bructus (Cambridge: Cambridge University Press, [1788] 2003). Montesquieu evinced a high degree of monarchical-feudal archaism, still distant from the constitutive principles of the modern liberal republic, although stressing the necessary stability of law, against despotism, alongside a deep mistrust of common people. However, while in many classical authors the judiciary was conceived as part of executive power, in this regard he proposed a path-breaking conceptualization. See Louis Althusser, Montesquieu, la politique, l’histoire (Paris: Presses Universitaires de France, 1974). Even more idiosyncratic was Niccolò Machiavelli, Discorsi sopra la prima deca de Tito Livio (1531), in Edizione nacionale delle opera di Niccolò Machiavelli (Roma: Salerno, 1997). He seems to have often been read, rather than as a democrat committed to popular participation, according to the need of limiting this democratic power by a strong ‘aristocracy’ (the senate in contemporary republics, starting with the US ‘founding fathers’). 8. Roberto Mangabeira Unger, Law in Modern Society (New York: Free Press, 1976), p.  52–54, 176ff; Idem, Knowledge and Politics (New York: Free Press, [1975] 1984), pp.  72–76. However, he thinks that, particularly regarding the relation between law-making and adjudication, there can be no coherent theory on liberal premises (pp.  83ff). See also Joseph Raz, ‘The rule of law and its virtue’ (1977), in The Authority of Law (Oxford: Oxford University Press, 2009); William E.  Scheuerman, Between the Norm and the Exception: The Frankfurt School and the Rule of Law (Cambridge, MA: The MIT Press, 1994), pp. 68–75; Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2004).

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9. Niklas Luhmann, Das Recht der Gesellschaft (Frankfurt am Main: Suhrkamp, 1993), p. 125. 10. Weber, op. cit., pp. 387–513; John H. Merrymen, The Civil Law Tradition (Stanford, CA: Stanford University Press, 1969); Herbert L. A. Hart, The Concept of Law (Oxford: Oxford University Press, [1961] 1994), p. 98. 11. Jean-Jacques Rousseau, Du Contrat social, ou principes du droit politique (1762), in Ouevres complètes, vol. II (Paris: Seuil, 1971), chap. 2.6; Scheuerman, op. cit., pp. 68ff, 74–75. 12. Raz, op. cit. Whereas his list of main aspects of the ‘rule of law’ contains neither democracy nor equality, he incongruously underlines its relation to freedom and dignity. 13. Jellinek, Allgemeine Staatslehre, pp. 386–87. For him, this legal limitation of state power does not do away with state ‘imperium’ and ‘domination’, though the state is the ‘server of the interests of the community’. Idem, System des subjektiven öffentlichen Rechte, chaps. 12–13. See, in addition, the idea of penal ‘guarantism’ and the preservation of individual rights against the state in Luigi Ferrajoli, Diritto e ragione. Teoria del garantismo penale (Roma-Bari: Laterza, 1989). 14. Unger, op. cit., pp. 52–54, 176ff; Tamanaha, op. cit. 15. Edward P.  Thompson, Whigs and Hunters (London: Penguin, [1975] 1990), chap. 10. Whether his position is fully adequate in emancipatory terms has evidently been the object of controversy. See Bob Fine, Democracy and the Rule of Law: Liberal Ideals and Marxist Critiques (London and Sidney: Pluto, 1984). 16. Partha Chatterjee, The Politics of the Governed: Reflections on Popular Politics in Most of the World (New York: Columbia University Press, 2004). 17. Edwin H.  Sutherland, ‘White-collar criminality’, American Sociological Review, vol. 5 (1940); Michel Foucault, Surveiller et punir. Naissance de la prison (Paris: Gallimard, 1975), pp.  98–106; Alessandro Baratta, Criminologia critica e critica del diritto penale. Introduzione alla sociologia giuridico-penale (Bologna: Il Mulino, 1982). 18. Richard Tuck, Philosophy and Government, 1572–1651 (Cambridge: Cambridge University Press, 1992); Maurizio Viroli, From Politics to Reason of State: The Acquisition and Transformation of the Language of Politics, 1250–1600 (Princeton, NJ: Princeton University Press, 1992); Mark Neocleons, Imagining the State (Maidenhead: Open University Press, 2013), pp. 40–46. Tacitus was pitted against Cicerone, in a line of descent starting with Machiavelli and Guicciardini (still a traditional humanist), but restructured by many after him and culminating in a renewed version in Hobbes’ disciplining and self-defensive sovereign, according to natural law, which radicalized Grotius’ view. Locke’s executive ‘prerogatives’ were key in the transition to liberalism (see below).

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19. Dan F. Henderson, ‘Law and political modernization in Japan’, in Robert E.  Ward (ed.), Political Development in Modern Japan (Princeton, NJ: Princeton University Press, 1968); Randall Peerenboom, China’s Long March toward the Rule of Law (Cambridge: Cambridge University Press, 2002). In Japan, Henderson argues, the rule of law succeeded rule by law after the defeat to and occupation by the US, whether a rights consciousness exits or not. 20. Philippe Nonet and Philip Selznick, Law and Society in Transition: Toward Responsive Law (New Brunswick, NJ and London: Transaction, [1978] 2001), chaps. 2–3. 21. Friedrich A. Hayek, The Constitution of Liberty (Chicago: The University of Chicago Press, [1960] 1978), chap. 10. See also W. E. Scheuerman, ‘The unholy alliance of Carl Schmitt and Friedrich A. Hayek’, Constellations, vol. 4 (1997). Whether Hayek was consistent in his views is not the point here. 22. Pierre Bourdieu, ‘La force du droit. Eléments pour une sociologie du champ juridique’, Actes de la recherche en sciences sociales, vol. 64 (1986); Idem, Sur l’Etat. Cours au Collège de France 1989–1992 (Paris: Raison d’Agir and Seuil, 2012), p. 590. 23. Talcott Parsons, The System of Modern Societies (Englewood Cliffs, IL: Prentice Hall, 1971), pp. 18–20; Idem, ‘Some reflections on the place of force in social process’ (1964), in Sociological Theory and Modern Society (New York: Free Press, 1967); Habermas, Fazität und Geltung, pp. 168–70, 361–66. 24. Bourdieu, ‘La force du droit’; Sur l’Etat, pp. 162–66, 587; Weber, op. cit., pp. 504–06ff. 25. Nicos Poulantzas, L’Etat, le pouvoir, le socialisme (Paris: Presses Universitaires de France, 1978), pp. 94–99. 26. Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977), chap. 1 and pp. 86–90. Thereby he wants to avoid a strong idea of judge-made law. 27. Kelsen, Reinerechtslehre. Einführung in der rechtswissenschaftliche Problematik (Wien: Verlag Österreich, [1934, 1960] 2000, 2nd edition), §1.4, pp. 3ff, § 6.c–e, pp. 45ff, § 2.12, pp. 68–69, § 3.14–16, pp. 72–79, § 4.27, 4.32, pp.  144ff, 162ff, § 5.34–35, pp.  196ff (242–43 for abstraction and concreteness), § 6.1ff, pp. 283ff. These issues are resumed, with more attention to common law, in his General Theory of Law and State (Cambridge, MA: Harvard University Press [1945] 1949). ‘Material’ elements, which we will examine in the next chapter, were already of course present in law, beyond sheer formality and abstractness (the Weimar constitution to start with), when he originally wrote his book in the early 1930s. 28. Intricacies and apparent inconsistencies, across his writings and diverse ­editions, beset the concept of ‘basic norm’—as pristine authorization to

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produce general, constitutional, norms; as having a transcendental or ‘hypothetical’ status; or even as general norms themselves, for instance. See J. Raz, ‘Kelsen’s theory of the basic norm’ (1974), in op. cit. Other authors, battling Kelsen’s positivism, stress different sources of law, distinct from written norms, with a greater role for judges, justice—including natural rights as a historical construction—and rhetoric, cf. Chaim Perelman, Ethique et droit (Brussels: Editions de l’Université de Bruxelles, 2008), pp.  569–76. Or emphasize the hidden strength of concrete elements in Kelsen’s theory, including bourgeois society, a lurking natural rights conception and an immediate connection with the state, such as Umberto Cerroni, Marx e il diritto moderno (Roma: Editori Riunitti, 1962), pp. 37–40, 119–54; or, still, criticize the lack of an immanently democratic connection in his definition, such as Andreas Kalyvas, ‘The basic norm and democracy in Hans Kelsen’s legal and political theory’, Philosophy and Social Criticism, vol. 5 (2006). Note that Kelsen (Reine Rechtslehre, § 6.41.b–c, pp. 293ff, § 7.42.d, pp. 32–26) follows Weber in the opposite mistake Jellinek committed, through a methodological individualist view of the state. 29. Kelsen, General Theory of Law and State, pp. 135, 397. The backdrop for these positions was the German debate about the state as a juridical personality. 30. Idem, ‘Value judgements in the science of law’, What is Justice? Justice, Law, and Politics in the Mirror of Science (Berkeley and Los Angeles: University of California Press, [1957] 1971), p. 227. 31. Ferrajoli, op. cit., pp. 721–29, 934–35. 32. Weber, op. cit., p. 29; Idem, ‘Politk als Beruf’ (1919), in Gesammelte politische Schriften (Tübingen: J. C. B Mohr [Paul Siebeck], 1988), pp. 505– 06; Carl Schmitt, Verfassungslehre (Berlin: Duncker & Humblot [1928] 1993), pp.  130ff; Idem, Der Begriff des Politischen (Berlin: Duncker & Humblot [1932] 2009), pp. 11, 43; M. Foucault, Naissance de la biopolitique. Cours au Collège de France, 1977–1978 (Paris: Gallimard/Seuil, 2004), p. 174; David Graeber, Direct Action: An Ethnography (Oakland, CA and Edinburgh: AK, 2009), pp. 511–12. 33. Kelsen, Reine Rechtslehre, § 1.6, pp. 8ff. 34. Ferrajoli, op. cit., chap. 10. 35. Michael Mann, The Sources of Social Power, vol. 2. The Rise of Classes and Nation-States, 1760–1914 (Cambridge: Cambridge University Press, 1993), pp. 403–12; Anthony Giddens, The Nation-State and Violence (Cambridge: Polity, 1985), p.  276; passim; M.  Foucault, Sécurité, territoire, population. Cours au Collège de France, 1977–1978 (Paris: Gallimard/Seuil, 2009), p. 361: Wolfgang Knöbl, Polizei und Hersschaft im Modernisierungsprozeβ. Staatsbiuldung und innere Sicherheit in Preuβen, England und Amerika 1700–1914 (Frankfurt and New York: Campus, 1997).

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36. Foucault, Surveiller et punir, pp. 20, 88, 98, 106, 152, 227, 259; David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: The University of Chicago Press, 2001). 37. Baratta, op. cit.; Nils Christie, Limits to Pain: The Role of Punishment in Penal Policy (Eugene, OR: Wipf and Stock, [1981] 2007); Thomas Mathiesen, Prison on Trial (Winchester: Waterside, [1990] 2006); Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison: Ideology, Class, and Criminal Justice (New York: Macmillan, 1990). The paradigmatic view of retributive penal justice is Kant’s (op. cit., E.1, pp.  451ff); the greatest influence on the structuration of criminal justice was, within the utilitarian mindset and the pleasure/pain gauge, Bentham, op. cit., chaps. 12–17. 38. Ferrajoli, op. cit., chaps. 11–14. 39. Here it is worth mentioning just that originally a view of bureaucracies similar to Weber’s was assumed in what would become the ‘public choice’ school, particularly with a stress on hierarchy in ‘bureaus’ (associated to Williamson too), including the necessity of providing certain types of services, later amended by the idea that markets could also be used for that, respectively in Anthony Downs, Inside Bureaucracy (Boston, Little Brown & Co., 1967) and William A. Niskanen, Jr., Bureaucracy and Representative Government (Chicago: Aldine, [1971] 2007). Downs (pp. 253ff) was convinced that the range of activities of bureaucracy increased freedom, contrary to Weber’s ambivalent account. 40. Georg Wilhelm Friedrich Hegel, Grundlinien der Philosophie des Rechts, in Werke, vol. 7 (Frankfurt am Main: Suhrkamp, [1820] 1986), §§ 202, 206, pp.  355, 357. For a critique, K.  Marx, Zur Kritik der Hegelschen Rechtsphilosophie. Kritik des Hegelschen Staatsrechts, in K.  Marx and Friedrich Engels, Werke, vol. 1 (Berlin: Dietz, [1843] 1981), pp.  246ff. See also Schlomo Avineri, Hegel’s Theory of the Modern State (Cambridge: Cambridge University Press, 1972). 41. John Stuart Mill, Considerations on Representative Government (Cambridge: Cambridge University Press, [1861] 2010), chaps. 3–4, 6, 14. 42. Weber, Wirtschaft und Gesellschaft, Part I, chap. 3, and Part II, chap. 7. 43. Idem, ibid., pp. 125–30, 541–678. For a connection between the role of formal and formalized bureaucratic domains for the instrumentality of action and the development of self-steered systems see J.  Habermas, Theorie des kommunikativen Handelns (Frankfurt am Main: Suhrkamp, 1981), vol. 2, chap. 2 and pp. 447ff. 44. Weber, Wirtschaft und Gesellschaft, p. 140. 45. Michael Mann, The Sources of Social Power, vol. 2. The Rise of Classes and Nation-States, 1760–1914 (Cambridge: Cambridge University Press, 1993), pp. 57, 79, 444–45 and chaps. 11–14.

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46. Bernard S.  Silberman, Cages of Reason: The Rise of the Rational State in France, Japan, the United States, and Great Britain (Chicago: The University of Chicago Press, 1993), especially pp.  414ff. The US and Britain stood for the former, France and Japan for the latter. Decisions by political leaders to ‘reduce uncertainty’ (not very convincingly) furnish for him the mechanisms of bureaucratic rationalization. 47. Peter M. Blau and W. Richard Scott, Formal Organizations: A Comparative Approach (Stanford, CA: Stanford University Press, [1962] 2003), p.  6 and chaps. 1–2. 48. Herbert A. Simon, Models of Man (New York: Wiley & Sons, 1957). The pragmatist idea of ‘muddling through’, in which ends and means mingle in administration, is correct, but should not be exaggerated. Charles E. Lindblom, ‘The science of “muddling through”’, Public Administration Review, vol. 19 (1959). 49. Peter Evans, Embedded Autonomy: States and Industrial Transformation (Princeton, NJ: Princeton University Press, 1995). See also Atul Kohli, State-Directed Development: Political Power and Industrialization in the Global Periphery (Cambridge: Cambridge University Press, 2004). Such rationality is precisely what is appalling for Ashis Nandy, The Romance of the State and the Fate of Dissent in the Tropics (New Delhi: Oxford University Press, 2003). 50. J.  M. Domingues, Global Modernity, Development, and Contemporary Civilization: Towards a Renewal of Critical Theory (New York and London: Routledge, 2012), pp. 84–92. 51. Poulantzas, op. cit., pp. 170–77. 52. Guillermo O’Donnell, Modernization and Bureaucratic Authoritarianism: Studies in South American Politics (Berkeley, CA: University of California, Berkeley, Institute of International Studies, 1973); Idem, 1966–1973. El Estado burocrático autoritario. Triunfos, derrotas y crisis (Buenos Aires: Editorial Belgrano, 1982); Robert O.  Paxton, The Anatomy of Fascism (New York: Alfred A. Knopf, 2004), chap. 5. 53. The ‘public choice’ approach was in this regard innovative, though theoretically skewed and politically reactionary. Gordon Tullock, The Economics of Politics (Indianapolis, IN: Liberty Fund, 2005). For the NPM, see Christopher Hood, ‘A public management for all seasons?’, Public Administration, vol. 69 (1991); David Osborne and Ted Gaebler, Reinventing Government: How the Entrepreneurial Spirit is Transforming the Public Sector (New York: Plume [1992] 1993); Pierre Dardot and Christian Laval, La Nouvelle raison du monde (Paris: La Découvert, [2009] 2010), pp. 171ff, 288, 377ff.

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54. Schmitt, Der Begriff des Politischen, pp. 10–11, 63–66. He was profoundly annoyed by this and stressed the role of the friend-foe dichotomy is his own definition of the ‘political’ (pp. 25ff, 43–44). 55. David Easton, The Political System: An Inquiry into the State of Political Science (New York: Alfred A. Knopf, [1953] 1971), p. 136. 56. Pierre Clastres, Archéologie de la violence. La Guerre dans les societies primitives (La Tour d’Aigues: Editions de l’Aube, [1977] 2013), pp.  8–9; Claude Lefort, ‘La question de la democratie’ (1983), in Essais sur le politique (Paris: Seuil, 1986), especially pp.  20–31, 31, 291–92, 329; Paula Diehl, Das Symbolische, das Imaginäre und die Demokratie. Eine Theorie politischer Representation (Baden-Baden: Nomos, 2015). Beyond Clasters’ sweeping generalization the Greek polis and the European early republican tradition need finer characterization. 57. C. Schmitt, Politische Theologie. Vier Kapitel zur Lehre von der Souveränität (Berlin: Duncker & Humblot [1922] 2009). 58. Hegel, op. cit., §§ 273–287, pp. 435–57—for whom constitutional monarchy softened the division of powers, with monarch and government interfering with the legislative; Mill, op. cit., pp. 86–88. See also Hannah Pitkin, The Concept of Representation (Berkeley and Los Angeles: University of California Press, 1967), pp. 2, 92–93, 102–03. 59. As famously put by Oliver Wendell Holmes, Jr., ‘The path of the law’, 10 Harvard Law Review (1897). 60. T. H. Marshall, ‘Citizenship and social class’ (1950), in Class, Citizenship and Social Development (Garden City NY: Double Day, 1964). 61. This was an adequate differentiation for Kant, op. cit., § 45, pp. 431–32. How problematic and tense this issue was for modernity and emerging liberalism is seen, from the very beginning, in the middle of the English Civil Wars, in the centrality of universal manhood suffrage in the 1647 documents ‘The case of the army truly stated’, ‘Agreement of the People’ and ‘The Putney debates’, in Levellers, op. cit. Supposedly consuetudinary rights (of the ‘freeborn Englishman’), with Roman republican rings, were the platform from which they mainly argued. 62. Locke, op. cit., p. 364. 63. Schmitt, Verfassungslehre, pp. 125, 200–20. 64. Hobbes, op. cit., chap. 16; Locke, op. cit., chap. 8; Rousseau, op. cit., passim (and pretty obviously if we take account of the ‘general will’); Mill, op. cit., chaps. 6–7. Contrary, in particular, to Rousseau, Mill feared, however, for the fate of minorities (including the rich). The Greek heritage was partly resumed by this general move (not the lot), majority vote not usually found in other groups predicated on direct self-rule, in which consensus has always been fundamental.

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65. Jeffrey C. Alexander, The Performance of Politics: Obamas’ Victory and the Democratic Struggle for Power (Oxford: Oxford University Press, 2010), pp. 18ff. 66. Pierre Rosanvallon, Le Peuple introuvable. Histoire de la représentation démocratique en France (Paris: Gallimard, 1998). The Jacobins took this very far. See Ferenc Fehér, The Frozen Revolution: An Essay on Jacobinism (Cambridge: Cambridge University Press and Paris: Maison des Sciences de l’Homme, 1987), pp. 58–60, 67. 67. Pitkin, op. cit., especially chaps. 8–9; Robert Dahl, Poliarchy: Participation and Opposition (New Haven, CT: Yale University Press, 1971); Idem, Democracy and its Critics (New Haven, CT: Yale University Press, 1989), pp.  28ff, 215ff; Bernard Manin, Principes du gouvernement représentatif (Paris: Flammarion, [1995] 1996); Nadia Urbinati, Representative Democracy: Principles and Genealogy (Chicago: The University of Chicago Press, 2006); Monica Brito Vieira and David Runciman, Representation (Cambridge: Polity, 2008), especially chaps. 2–4 (and 1 for historical origins). The perhaps most classical view stressed that common, general, ‘national’ interests were at stake, not the inclinations of specific electors, who could not give specific instructions, let alone bound mandates. Edmund Burke, ‘Speech to the electors of Bristol’ (1774), in Selected Works, vol. 4 (Miscellaneous Writings) (Indianapolis, IN: Liberty Fund, 1999). Montesquieu (op. cit., book 11, chap. 6) stressed the representation of the ‘nation’—which cannot be ‘present’—and free debate. 68. Burke, op.  cit.; Mill, op. cit., especially chaps. 1, 3, 5; Idem, On Liberty (1859), in On Liberty and Other Writings (Cambridge: Cambridge University Press, 1989), especially chaps. 1–2. For a general view, see Pitkin, op. cit., chaps. 1, 8–10; Manin, op. cit., chap. 5. 69. Manin, op. cit., chaps. 3–4. He speaks, fundamentally agreeing with the classical tradition, of election as an aristocratic—or oligarchic, more critically and pessimistically—feature of modern democracy, according to a ‘principle of distinction’ of the elected. He tends to conflate superiority between candidates with that between these and electors. For a critique, Urbinati, op. cit., pp. 8–10. The difference between democracy—exercised directly by the people—and (the modern) republic—ruled by representatives—is the theme of James Madison, ‘The Federalist no. 10’ and ‘The Federalist no. 57’, in Ball, op. cit. Representatives would behave according to the pondered interests of those who elect them, without however submitting to their immediate desires, instead opinion passing through a filter of most capable men, who are not like their electors, but the selection of the best. 70. The English accepted representation, with its degraded feudal origins, and therefore were free only at the moment of the vote, according to Rousseau

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(op. cit., chap. 3.1–2, 15). He seems to have eventually accepted the inevitability and even positive aspects of representation in ‘large states’, according to his ‘Considérations sur le gouvernement de Pologne et sur sa réformation projetée’ (1771–72), in Ouevres complètes, vol. III (Paris: Seuil, 1971), chap. 7. Eventually, a more restricted view of the ‘common will’ (versus Rousseau’s ‘general will’) of individuals prevailed, finding expression in ‘a government by proxy’, a ‘representative common will’. The community never relinquishes, on the other hand, its ‘right to will’ (droit de vouloir), thereby limiting the power of the ‘body of delegates’. Emmanuel Joseph Sieyés, Qu’est-ce que le Tiers état? (Paris: Presses Universitaires de France, [1789] 2001), chap. 5, although even those who stuck by the ‘general will’, such as the Jacobins, had to accept representation, with a tense and ultimately destructive relation with direct democracy, the impatiently awaken sovereign. See Fehér, op. cit. 71. Arendt, op. cit., pp. 38ff; Fehér, op. cit., 123, 134. 72. Mill, op. cit. 73. Dahl, op. cit., pp. 217–22 and chap. 20; Joseph A. Schumpeter, Capitalism, Socialism and Democracy (New York: Harper Torchbooks, [1942] 1962), chaps. 21–23; Urbinati, op. cit., especially chap. 1. She draws upon Sieyè, Kant, Condorcet and Paine, as well as radicalizes Habermas’ views and revisits Rousseau. In Habermas’ Strukturwandel der Öffentlichkeit and Fakzität und Geltung, we find an articulation of concrete interests and particular standpoints, which must, however, be eventually sublated with the creation of new, superior norms, through the workings of a universal, detached, disembodied and stringent communicative action. Initially, he tended even to reject more limited compromises. Conversely, ‘public choice’ presents a dark view of the collusion between special interests, politicians (legislators) and bureaucrats, with rather passive and ignorant voters (pace the dubious statement that for them this is doubly rational, because information costs much and benefits little, and the stress in addition on the inevitability of ‘logrolling’, spurious agreements between particularistic interests in some form of rent-seeking). G. Tullock, op. cit., pp.  205ff; Idem, Rent Seeking (Aldershot: Edward Elgar, 1993), pp.  34–35, 43, 58–59, 79. 74. Locke, op. cit., chap. 14; Jean-Jacques Rousseau, ‘Economie politique’ (1755), in Ouevres complètes, vol. II (Paris: Seuil, 1971); Du Contrat social, ou principes du droit politique, chap. 2.6, 3.1–2ff, 3.16; Idem, Lettres écrites de la montagne (1764), in Ouevres complètes, vol. III (Paris: Seuil, 1971), especially letter 7. More technically, according to that main oeuvre, ‘government’ was supposed to facilitate the ‘mutual correspondence’ between ‘sovereign’ (active) and ‘subjects’ (passive).

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75. J.  Madison, ‘Federalist no. 46’; A.  Hamilton, ‘Federalist no. 68’ and ‘Federalist no. 77’, in Ball, op. cit.; Jacques Necker, Du Pouvoir executive dans les grans états (1792), in Ouevres complètes, vol. 8 (Paris: Treuttel & Würtz, 1821). While monarchy was based on concrete personal traits, regarding a possible republic, he was in his late years concerned with a collective government of ‘consuls’, which could impose itself by means of ‘abstraction’ rather than incarnating in a single man, although political responsibility should accrue to he who spent one year as the elected leader among them. Idem, Dernières vues de politique et de finance, in Ouevres complètes, vol. 11 (Paris: Treuttel & Würtz, 1821), pp.  140ff. See P. Rosanvallon, Le Bon gouvernement (Paris: Seuil, 2015), especially chap. 1. 76. K.  Marx, Der achtzehnte Brumaire des Louis Bonaparte, in K.  Marx and F. Engels, Werke, vol. 8 (Berlin: Dietz, [1852] 1960), p. 128. 77. Especially C. Schmitt, ‘Vorbemerkung (Über den Gegensatz von Parlamentarismus und Demokratie)’ (1926), in Die geistgeschichtliche Lage des heutigen Parlamentarismus (Berlin: Duncker & Humblot, [1923, 1926] 2010); Idem, Verfassungslehre, pp. 204–20; Idem, Der Hütter der Verfassung (Berlin: Duncker & Humblot, [1931] 1969), pp. 158–59. He was keen on a plebiscitary president. See further, Juan C. Portantiero and Emilio de Ípola, ‘Lo nacional popular y los populismos realmente existentes’, Nueva sociedad, no. 54 (1981). 78. Cf. Sigmund Freud, ‘Das Unbewusste’ (1915), in Studienausgabe, vol. 3 (Frankfurt am Main: S. Fisher, 1975). 79. Hegel, op. cit., § 257, pp. 398–402. 80. K. Marx, Zur Kritik der Hegelschen Rechtsphilosophie; Idem, ‘Einleitung zu den “Grundrisse der Kritik der politischen Ökonomie”’ (Ökonomische Manuskripte 1857/1858), in K. Marx and F. Engels, Werke, vol. 42 (Berlin: Dietz, 1983), pp. 15ff. 81. See Fredrik Jameson, Representing Capital: A Reading of Volume One (London and New York: Verso, 2011), pp. 5, 135.

CHAPTER 3

From Abstract to Concrete

3.1   Nation and People If abstractness has weighed heavily in political modernity, from the very beginning the abstract individual citizen has existed only within the borders of specific states. It has been considered as part of a collectivity. It is within a ‘nation’ and in relation to a ‘people’ that the positive formalization of rights has taken place. To some extent, they can be deemed an element of transition between the abstract and the concrete. Nation and people imply citizens with only these very general belongings, which intimately contain variably significant concrete specificities. These differentiate each group of citizens from all others. The nation and the people are both very distinctive and permanent elements of modern civilization. They will be taken here as analytical categories. Defined sometimes as an independent sphere, at others embracing everything—and particularly until recently appearing as homogenous, stable and bounded—, ‘culture’ has been crucial for the understanding of the nation and to some extent of the people as an identity construct of modernity. Conceptually, however, ‘culture’ has been basically a residual and reified category which frames the symbolic universe as a leftover of the economic and political dimensions. It has been understood as a rather fixed entity, in anthropology, sociology and political science, with for instance the notion of ‘political culture’ playing this role in the dimension tackled by this book. The nation in particular has lent a specific general content for the notion of culture, somehow entangled with the notion of © The Author(s) 2019 J. M. Domingues, Critical Theory and Political Modernity, https://doi.org/10.1007/978-3-030-02001-9_3

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the people. Historically, it has stood out in what is regarded as the more concrete elements of the modern imaginary (alongside ‘religion’, its uneasy position in that rationalist universe notwithstanding, to which I will later come back) and initially complemented the abstract character of citizenship, law and the state, such as examined in the previous chapters. Nation and people imply a suppler and widely floating symbolic fabric, that is, ‘magmatic’, with multiple imaginary significations. They offer a focus for intense social creativity and emotional attachment. In the words of Michelet, the French Romantic historian, the nation was the wholesome spiritual element linked to the emergence of the ‘people’, the ‘historical actor’ that gave continuity to and at the same time made the ‘race’ (what we would call ethnic groups now), so important in barbarian times, milder in modernity. This was true of France as much as of elsewhere. It yielded the surge of specific nations, with a ‘national soul’, through the ‘labour of itself over itself’ in the trajectory of each of them (associated to the ‘right of freedom’ in the case in point).1 His countryman Renan partly agreed with his praise of this spiritual dimension, stressing the role of common memories and the desire to live together a solidary collective existence (as a ‘daily plebiscite’). But he was much soberer, pointing that people need to forget a lot—especially their painful mutual violence in the past—in order that positive memories and desire endure and bring them together.2 In turn, Bauer saw the modern nation as a ‘community of destiny’ which emerged from the creation of common bonds in a given territory due to the development of capitalist markets. It was restricted culturally to the upper classes, socialism would democratize it.3 Curiously, there are far more studies at present about nationalism than about the nation. According to the main analyses, we can identify two models of the nation: the civic and the ethnically bound.4 The former has been more concerned with citizenship and has banked on ‘open serialities’, to employ Anderson’s expression, influenced by Sartre, in contradistinction to the ‘bound serialities’ of ethnicity and ethnic movements.5 In practice, there is sometimes an overlap between them and, all in all, even in civic nationalism—as it originally appeared in Britain, France, the United States and Latin America—an element of national culture as a means of identification of the population has been of decisive importance. It may even be argued that civic nations have arisen through the leadership of some ethnic group, which generalized and at the same time enlarged its own symbolic and practical universe in order to incorporate other groups and consolidate

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its own power. Former German and overall East European national conceptions have been based on an ethnic view of the nation, which makes it much more exclusive and potentially intolerant of difference. The nation has usually been connected to a state—for Weber, this is in fact a characteristic that distinguishes it from ethnicity; it has a salient political character.6 This has allowed for its crystallization and institutionalization, often through the spread and imposition of a common language (whatever the difference between a ‘language’ and a ‘dialect’). But the direct identification of nation and state, which has obtained in many cases, has been by no means universal. This has led some authors to speak of a national state rather than of the ‘nation-state’: it could contain more than one culturally bound group (as originally in Switzerland or in Canada), pace perhaps the hegemony of one of them in it.7 In Asia and Africa, despite many conflictive processes of independence and post-colonial national construction, the rule has been the dual or plural national character of the state. We could even speak of India as a ‘nation of nations’, while homogenizing and pluralist continuity from the vast ‘empire’ to nation can be found in China.8 And as modernity advances with increasing complexity, under the combined pressure and momentum of heightened globalization, the pluralization of the nation or of the state, depending on how this is phrased, has gained more legitimacy and spread to countries where it was initially considered inadequate, especially in relation to ‘original peoples’ in the Americas and other regions of the world. Citizenship becomes therefore a more intricate and sometimes mind-blowing issue: individual and collective belongings can no longer be simply reduced to a direct fit between nation and state. The colonial world, which did not have the span of time the West had to amalgamate and compress so many ethnic groups in a single nation, was the main vehicle for this pluralization, which makes more problematic— though not entirely surpassing it—the abstract definition of the citizen. This remains central for the delineation of a legally encircled population, in which the state abstractly mediates between citizens, whereas other aspects of social life as well as entitlements related to those ethnic or similar belongings stress and introduce elements of heterogeneity within the state, including its legal structure. In several instances, it draws attention to specific contexts that contradict that original homogenous outlook. Alternatively, such a state may even recognize other ethnic or national groups within its borders, grant them citizenship rights, and yet establish itself as the preserve of a dominant nation or ethnic group that keeps the

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others under variable levels of subordination and subalternity. In other words, this is no automatic process. In both its origins and further evolution, including recent ones, the nation has been characterized by how the conflictive relations between collectivities unfold. The nation is therefore a rather elusive and contested concept. Only historically, in its magmatic shifts, does it make full sense, what we need to take into account when framing it analytically. The notion of ‘fatherland’/‘motherland’, or ‘patrie’, so important for the French revolutionaries, could be viewed and studied similarly, mostly ‘love of country’ including ‘love of liberty’. Infused with concreteness, its ancient political perspective being at a certain point ‘nationalized’, it seems to have had less centrality in the modern imaginary overall.9 In turn, the notion of the people, which possesses a very long and convoluted, politically charged history, has been crucial for modernity and partakes in this uncertain definitional character.10 Referring also to a specific population, it has more direct political meaning, as the sum of the individual bearers of sovereignty and rights, a perspective we find in Locke’s liberalism and in Rousseau’s more republican version of early political modernity.11 In such other traditions as represented by Herder in Germany, the concept of the ‘people’ (Völk) often found a more ‘holistic’ phrasing. A homogeneous compound of culture and language played a paramount role and was universally attributed to different populations (though Herder saw them as open and as sharing discoveries and inventions). In this version, the ‘people’ is hardly distinguishable from the ‘nation’.12 Actually it has been very difficult to define what the ‘people’ is. This consists in one more clearly ‘magmatic’ concept, with its floating, multifaceted and shifting features. It is quite likely that this does not happen by chance and that this elusiveness reveals that the ‘people’ really is, as Rosanvallon put it, ‘not to be found’ (introuvable). On the one hand, it appears as merely a ‘big number’, a composition of (abstract) individuals who are equal before the law; on the other, to be democratically represented, it must be embodied somehow.13 The relation it establishes with the nation is, above all, what allows for its permanence as a substance-like entity. This is defined as prior to any further characteristic and thereupon a political dimension can be built, although only piecemeal was this solution fully settled, beyond a more abstract, civic-centred definition. The trail of the concept of ‘people’ across modernity has spanned a vast terrain and evinced distinct meanings, which still have to be fully mapped. This has become even more pronounced with the global expansion of

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modernity. Sociology—and even political philosophy—does not have a sharp analytical definition of the concept, beyond those political and cultural core ones and the often-voiced idea of its homogeneity. Conservative thinkers often linked it to the ‘rabble’ (plebeians), but even they eventually had to come to grips with the political power of the ‘people’, as we see in Schmitt’s case.14 If democratic-republican views often opposed the homogenous and humble ‘people’ to the rich and the bourgeois,15 left-­ wingers ultimately have directly connected the concept of the ‘people’ to politics, even identifying the very essence of the latter with the appeal to the former as a collective subject capable of mobilization. Similarly to the case of the nation, pluralism slowly made its presence felt in the people’s countenance and outline, even if its final unification is searched for.16 This has surely pushed beyond the pluralism which originally recognized nations and peoples as comprised within the borders of modern states (versus former empires, which usually saw themselves as internally plural and as the exclusive embodiments of civilization), an intrinsic element in the definition of both ideas.17 This heterogeneity does not, however, mean that they break away from the mould of the modern state. When we discussed civil and political rights, a formal expression, more easily systematized, guaranteed by its abstract character, could be maintained. Some elegance was in this regard more naturally achieved, with a recurrent recourse to classical authors, who firstly formulated the ideas that furnish the backbone of that tradition, which still organizes much of the world in which we live. We are now in the realm of increased concreteness, as we have already had occasion to see with respect to the pluralization of the nation. Things become much messier and the exposition will have to deal with the heterogeneity and often contextual character of social policy and social agents, individual and collective. The societal dynamic, with its open-ended character, will come to the fore and it is with this new, enlarged horizon, imaginary and institutional, that we will have to grapple. While civil and political rights share in a sort of radical ‘logocentrism’, such as defined by Adorno and Horkheimer—, that is, the definition of reality by concepts—in a radical way due to their abstractness, a crucial issue for those philosophers as well, social rights remain in its domain. The latter are already suffused however by the particularities societal life and dynamics impose on them. It is never excessive to note that much of this ‘logocentrism’ happened within national boundaries and according to ethnic nationalism, as a very closed seriality, for instance, in the case of Nazism and of its final solution to the Jewish question, a particular—very concrete—people it was wont to annihilate.18

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3.2   Social Policy and Social Citizenship The civil rights enshrined by the rise of liberalism were supposed to set everyone free—guaranteeing that original freedom was preserved, according to some philosophers. Thereby whoever made an effort would succeed in fostering their life plans, poverty would be eliminated and desires fulfilled. But things did not actually develop this way. While those abstract rights created the double, split individual examined in Chap. 1, the societal dynamic involved very specific collectivities with salient particular characteristics that coloured the social landscape. The so-called social question came to the fore and especially ‘pauperism’ became a highly prominent issue. Liberalism scarcely had responses for it, except if it was willing, for expedient political reasons, for instance, to implement ‘emergency’ measures, as the Jacobins learnt to do once the social question was imposed on them by the masses of Paris, despite their background ­laissez-­faireism. The primary ‘right’ to ‘subsistence’ emerged at this point. The authoritarian British Poor Laws are another important example of such liberal tribulations.19 Social policies of various types thus developed. If they mostly shared the difficulty of a definition of total universality, and could not, in this respect, match the absoluteness and quasi-apodictical character of civil and political rights, some of them tended in this direction, whereas others received a more particularized outline.20 The homogeneity of civil and political rights was displaced to a large extent by the heterogeneity of situations and answers of social policy, although some of them at least evinced a universal and in principle abstract character, applying to any individual. This was contradicted by restricted entitlements, which fall short of the citizenship status, especially when they hinge upon means-tested schemes. Poverty usually is at their core.21 The former path, universalistic, eventually developed into so-called social rights; the latter, particularized, delimit entitlements with diverse goals and reach. The former has been more closely related to varied strands of ‘social democracy’, the latter to distinct versions of ‘social liberalism’. This is a sort of liberalism—or neoliberalism—that recognizes the limitations of the market to solve social problems, especially poverty, and consequently contemplates social policies. Variable levels of taxation have accompanied this evolution. Social rights, especially when really universalized, aim to level out, to a restricted extent, the power of individuals in social life, evincing, in the same movement, a collective dimension.22

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3.2.1  Universalism ‘Redistribution’ and ‘recognition of dependencies’ (people’s concrete needs) have been at the heart of social policy, much better attended to, according to a social democrat such as Titmuss, by universalist policies, in spite of their many problems and blind spots.23 A universal status would be sought. A process of de-commodification also sets in with the provision of extra-monetary and non-market-oriented services linked to use-value, with concrete features, contrary to the abstractness of labour exchange-­ value. This entails a huge and growing number of state employees, whose work rests on use-value based services.24 Finally, issues related to specific, disadvantaged collectivities (based on caste, race, gender, ethnicity, disability, immigrant status) have slowly achieved pre-eminence. They led to the institution of a brand of social policies with a more complicated relation to citizenship, since they affirm particularities and propel heterogeneity, mostly to redress inequalities, increasingly in terms of specific identities and social situations.25 Admittedly, universalist and means-tested schemes grew together and there was no prior definition of the direction of their social policies. They expanded piecemeal, eventually overcoming what had been pioneered by workers’ ‘mutual assistance’ schemes, for instance regarding labour accidents and old-age insurance. The state initially intervened in other areas, without a comprehensive blueprint beyond the amelioration of some prevailing harsh conditions, although communication between countries awakened desires in those that could be defined as ‘laggards’. Nor was there a project to build a ‘welfare state’ in the bounds of capitalism.26 In modernity, as well as even in so-called real socialism, despite the effort to overcome ‘capitalism’ and its ‘superstructure’, social rights have been a fundamental aspect of what may be defined as social constitutionalism. This meant a generalized change of liberal constitutions beyond only civil and political rights, with welfare states assuming different forms and including rights with varied intensity, often with a reliance on more limited entitlements. Post-revolutionary 1917 Mexico (especially with the agrarian reform), then 1920s Weimar Germany and the Soviet Union under ‘real socialism’ (breaking of course with private property), were the beacons of social constitutionalism, which expanded to encompass the whole planet.27 ‘Social citizenship’, ‘corporatist’ and ‘residual’ regimes have been a way of classifying welfare systems, variations in scope and specific configurations within each in any case to be found. The first is universal,

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the second rests on ‘merit’, achievement and contribution, the third implies restricted entitlements and fewer rights.28 Social risk, its avoidance or remedying, stood at the core of social rights and entitlements.29 Labour legislation, rarely theorized in terms of social citizenship, was crucial already in nineteenth-century Britain, what Marx very partially recognized in Capital.30 Originally, it included in particular education (already pushed by liberal forces at the first moments of the French Revolution and, even before that, by authoritarian modernizing states, such as Prussian late Absolutism, often connected to the homogenization of the national language), health care, labour accidents, retirement and housing. More basic elements of subsistence and survival—such as preventing sheer starvation—also figured in the concerns and regulations related to social welfare and infrastructural ameliorations, including fresh water, sewage systems and transportation as goods that should be publicly supplied. Social rights and entitlements meant a triumph of the concrete over the abstract features of civil and political citizenship. They basically retained the individual as a rights-holder or target of social policy, but this was no longer the plain, absolutely abstract citizen. Those societal elements, laying bare the specific social belongings and traits of individuals, irrupted in the political arena, with labour playing a paramount role in the imaginary and institutional arrangements linked to this surge of concreteness. Representation, as seen at the close of Chap. 2, was a means whereby concrete societal features found their way into the abstract site of state life, forever challenging the emptiness of content and aseptic procedures that liberalism had regarded as the crucial aspect of political modernity. Other elements and identities eventually stepped onto that now increasingly formally porous state sphere, without however denying the overall liberal infrastructure of political modernity.31 Drawing upon analytical jurisprudence, I proposed an abstract and analytical scheme to interpret abstract citizens with respect to their rights and duties in relation to one another in Chap. 1. Let us now resume and apply that conceptualization to social rights. Accordingly, we may say that A has a right vis-à-vis B, in which B stands for all individuals—hence B, C, D, and so on—in a given ‘society’, encompassed by a state responsible for the production and application of positive law. They are represented by this state, which universally mediates the relations between them all. It lends a legal form to their connection, including social rights, and ­institutionalizes some level of solidarity between them. A is therefore cast in a position such that

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B, C, D, and so on, via the state, appear as the mirror where it finds its rights reflected. In fact, A’s—as well as B’s, C’s, D’s, and so on—rights consist in a further component of the Meadian ‘generalized other’ we have already encountered in Chap. 2, in which individuals as a whole furnish mirrors of recognition to one another as citizens. This generalized other is now enriched by more concrete features, which find their way into social rights. This implies that citizens are free but that concerning social rights they find themselves however in an inert and submissive position. It is the state, with its juridical personality, that is active in this manifold relationship. Individuals appear as ‘beneficiaries’ of social rights. These imply claims regarding the state and services it offers in its role of universal mediator between them, with great autonomy, in its juridical-political personality.32 It is important to note that social rights are shaped by their positivization by sovereign nation-states, likewise their civil and political predecessors. Regardless of how the nation is conceived, in civic, culturally bound or even directly ethnic terms, the state is absolutely fundamental for the definition of citizenship in every dimension. Besides their specific shape, with its territorial power and delimitation of who is to be taken as a citizen, the state defines who must be the beneficiary of social policies, including those pertaining to immigrants, an issue that evidently further heightens concreteness, implying a broader tack on universalism. Yet, none of this can be confined to nation or national states. This is a process of global import and impact. We may even speak of a global civil war around such issues, which had its epicentre, during the twentieth century, in Europe.33 The dialectic of the abstract and the concrete is no pure conceptual occurrence. It unfolds in the midst of dramatic and at times tragic developments, based on fierce and at times vicious struggles, whose dynamics we shall examine below. It is not the development of the concept towards an encompassing idea that matters: instead, it is the fate of real people, both within national borders and beyond them, what is at stake, propelling and suffering the impact of the dynamic unleashed at the first moments of modernity. This has not ever abandoned us, and it is unlikely that it will, at least as long as we remain within the bounds of modernity. 3.2.2  Rights, Entitlements and Targeting If the mould is the same, the relative inconsistency of the universal character of social rights must always be borne in mind, especially if we speak of corporatist and residual welfare systems. In the former, individual

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contributions define the services to be expected; and not necessarily is everybody within the frame of the welfare social contract. In the latter, the scope of universal rights remains much more limited, sometimes being almost conspicuously absent. Simple entitlements have prominence in residual welfare schemes and must not be seen as rights, as at least some of their advocates implicitly acknowledge. They are usually targeted to specific collectivities within a given population. This sort of outlook can be explicitly sustained or continue implicit only, within the soft framework of neoliberalism with a human face—social liberalism, in other words—which embraces focused entitlements versus rights, as we see in Sen’s positioning, though he stresses their role in propelling individual and fragmented ‘freedoms’.34 When this happens, the mediation between citizens as citizens, such as carried out by the state, fades away: we are therefore faced with a sort of unequal situation in which some have power over others who are treated as lesser members of society, in need of specific attention, supervision and control. This does not mean that sometimes we do not need to make recourse to such restricted entitlements, insofar as people often face a dire situation of destitution. Nevertheless, we must bear in mind that this does not fall within the solidary schemes of social citizenship proper, with its equal freedom and shared responsibility, with tutelage brushed aside as well. Citizenship rights imply equality, starting from an abstract perspective in this regard, although concreteness seeps through the more intensely the broader the range of claims and services that are expected from the state. These have to be discretely, a great many times discretionarily, dispensed by the state’s bureaucracy, which moreover tends to multiply regulations enacted through mere administrative law, without legislative initiative, and frequently even oversight. Entitlements are usually connected to equity— that is, the differential treatment of individuals or collectivities according to their supposedly particular needs. This means that they cannot be abstractly conceived, regardless of how much large target groups can give the impression that entitlements are rights—equal and universal—, which they are not, regardless of how many people they reach, since the principle on which they rest is different. They usually link up with means-tested schemes and situations of grave hardship, being conditional on the continuity of this unfavourable social position and often entailing tasks to be fulfilled by their beneficiaries, under the purview of the state.35

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3.2.3  Sectorialized Policies Sectorialized policies are, in turn, related to specific collectivities due to what the latter are. They answer particular demands, whether the entitlements are phrased in individualist or collectivist terms (even if some authors, with a decidedly individualist bias, are not happy with the last possibility). They stand between rights and entitlements, with a universal bend in relation to certain categories of persons. These policies are ambiguous: they are unconditional as rights and cut out to apply to a segment of the population, egalitarian within the group and aiming at equality in social life permanently. Yet they rest on equity too: they treat different people differently, redressing social inequalities or affirming collective particularities (often ethnic or ‘cultural’).36 In the latter case, they may include elements of juridical pluralism, drawing upon non-modern, albeit already modernized, sources of law,37 within the bounds of the modern state, though. One of the first, if not the first, in the world to include such policies was the 1950 Indian Constitution, in relation to caste and tribal ‘scheduled’ groups. Henceforth, sectorialized policies mushroomed. Largely as a consequence of their passive position in these cases, individuals and collectivities have become clients of the state, which is the entity responsible for furnishing them benefits. This is a salient characteristic of what Lukács defined as ‘reification’ when he drew upon Marx’s theory of the ‘fetishism of the commodity’.38 In the case of citizenship rights, we have, in spite of this passivity, a more open ‘seriality’; regarding targeted entitlements, serialities are tightly bound, with such groups somehow opposed to other bound collectivities, even if merely by exclusion. This obtains especially when they are demarcated according to poverty and is true to some extent as regards sectorialized policies, which may or may not be associated to equity perspectives.39 A new form of de-­ politicization, creation of clienteles and the concealment of conflict, connected to concreteness rather than utterly abstract, are associated with this evolution. Instead of formal abstraction, technical control takes over, related to the means-end chain and to efficiency.40 Moreover, social citizenship aims at a permanent situation; its goal is to change the foundations of societal life to a certain extent and of citizenship in its specific traits. It alters the status of individuals. The future is its space-time horizon, not the past, contrary to civil and political citizenship, geared to maintain a pristine situation. Social citizenship increases social equality and, consequently, equal freedom, with the state offering services

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that run counter to the unequal positioning of concrete individuals in social life and commodification. This is true of labour legislation, health care, education, accommodation and all sorts of services that may be required of the state as modernity advances and becomes richer. Sectorialized policies can play the same role but either aspire to redress past injustices, and would disappear in the future, or are oriented to the preservation of what seemingly consists in the characteristics and perennial demands of specific collectivities. They may have a strong role in equalizing social status, although this is carried out in terms of differentiation. They evince a tension with the universalist frame of social citizenship without being opposed to it. In contradistinction, targeted policies merely seek to redress social imbalances for a certain period of time. They lock people, however slightly better off, in bound serialities. It is true, to be sure, that states have in fact implemented some mix of these types of social policy, with an emphasis on one or the other. Not a novelty at all, targeted policies have however become typical of later developments of neo/social liberalism, short of and to a large extent inimical to social citizenship.

3.3   Rights and Freedom Some would argue, embracing a radical liberal standpoint, that the intervention of the state and the establishment of social rights diminishes overall freedom, an often-repeated mantra. Von Humboldt, the great humanist, was one of the first to make it. Writing amazingly early on, he was especially against social and economic state intervention, with space for moulding people through education, religion and costumes preserved and security as the main concern of the state. Hayek was, much later, one of the most forceful, taking freedom in a formal and abstract way, as well as privatized and market-oriented.41 This might not be the case with targeted policies oriented to cash transfers, which would be deemed compatible even with neoliberalism. Contrariwise, to start with because social rights limit the coercion exercised over propertyless workers to sell their labour force at any price and at any moment, strengthening their egalitarian citizenship status, they were rejected. Overall, against the compulsion of the market, social rights increase individual freedom (what even targeted policies may achieve, to a much lesser extent) and include a truly emancipatory dimension, although the role of discretionary state bureaucracy has been debated and criticized since at least the 1960s, especially in Europe.42

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On the other hand, the increasing reach and heterogeneity of social rights and state intervention in social life more generally meant for many authors a decline or even the destruction of the rule of law. This relates directly to the conflict between ‘formal’ and ‘substantive’ (‘material’) rationality Weber identified as highly problematic in the development of modernity—that is, concrete issues clashed and were superimposed on universal and abstract legal principles, especially regarding the demand of social rights by workers.43 The very idea of what law consists in—its generality, durability, publicity—,  let alone the way in which it is enacted, considerably changed, with the growth and legitimation of executive power, which has been operating much of its production.44 These changes in law and in its connection to the executive configure a long-term process, in addition entailing changes in the bureaucracy and in the role of the judiciary. For some, such as Neumann and Kirchheimer originally, this was dangerous, since authoritarianism and lack of freedom lurked behind these developments: the generality, autonomy, prevision and publicity of law riskily decayed (although their strengthening could be, depending on concrete circumstances, also problematic, viz. generality versus expropriation of private property whose function was socially defined). For others, including Unger, the whole process and its provisional upshots are good, clearing the way for social experimentalism. Schmitt, representing the former position, was particularly fierce in his denunciation of the problems this sort of ‘pluralism’ was supposedly fraught with. He coupled this sort of development with a transition to new sorts of state (‘administrative’ or ‘total’) and the perversions of majoritarianism, underlining its tendentially exclusivist character. As usual, he played liberalism’s contradictions against itself.45 Yet, the rule of law has not at all disappeared, insofar as it is indeed rule of law. It became much more multifaceted, demanding more intense interpretation and exhibiting many instances of particularism, while some of its most general aspects and applications have hardly been altered. Warns such as those have led, nevertheless, to an awareness of the instability introduced into juridical systems due to greater social complexification. In the US, some reckoned that this could give occasion to the development of a sort of ‘responsive law’, hence more, rather than less, democratic, contrary to perspectives that feared the decay of its universal rule. Law would become more open and suppler rather than subject to upfront political imperatives.46 In contrast, the ‘critical legal studies’ movement vied to go beyond formalism and pursue politicized social reformism.47

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Others would speak instead, but in the same vein, of making law more flexible, via ‘neo-constitutionalism’, with great impact, especially in Germany, Southern Europe and Brazil. Alongside the guarantee of rights, ‘weighing’ and ‘proportionality’, balancing different legal statutes and social demands, would open up law and judicial decisions.48 Since the 1980s, the welfare state has been under a specific sort of pressure: globalization, which Chap. 7 will confront in some detail. Its intensification has purportedly implied less power for the state to regulate its own internal affairs and its environment, implying fiscal and policy problems. This would lead, for some, to the decline of social citizenship—not by chance the strengthening of targeted policies has happened globally in the same period. Or at least a decoupling of the three dimensions of citizenship (civil, political, social) would come about. This is a process and a trend that can be seen in a positive light insofar as human rights—in their most abstract expression, at the same time tied to basic human needs for life and protection, no longer particularly to property—are progressively receiving pride of place in global politics.49 There is some truth in these views. It would be pointless to deny the huge pressure applied over ­nation-­states in this and in other respects, let alone the difficulties in establishing social citizenship on a global scale. This is not, contrary to what we often hear, a natural, automatic process; instead, it depends directly on programmes, and the balance of political forces.

3.4   The Upsurge of Concreteness Bureaucracy, in all its dimensions, is a cornerstone of the modern state. It aimed at uniformity, but heterogeneity and context-specific issues have forced their way into its workings. This has implied specific changes in legal systems, whose reach we must probe. Whether the model of modern bureaucracy makes sense beyond the ideal-typical concept that reigns supreme in the social sciences also needs to be discussed. As we will see now in what regards specific processes, there is an upsurge, in different spheres and with multiple effects, of concreteness within the state side of the modern divide. This is an expansion of the concrete that does not stop at bureaucracy; politics as such is impacted by this development. Remember, in addition, that concreteness is out of necessity much messier than the abstractness that was envisioned as the neat and initially reassuring characteristic of modernity.

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3.4.1  Neopatrimonialism Before delving into these dynamic developments, we need to consider a more permanent feature of the modern state, which has been disregarded and does not fit the self-understanding of modernity. Concreteness glaringly plays a crucial role in it. It challenges the view of bureaucracy as a detached body of people separated from the means of administration. If it is true that Weber underscored that he was putting forward an ideal-type, this was not how it was in practice treated. In any case, the generalized understanding of the modern state by officials and citizens was what served as the background for Weber’s sociological formulation. This does not seem to obtain in reality, though—certainly not to the extent Weber suggested, neither in the West nor elsewhere. The rational-­ legal bureaucracy, in principle detached and forbidden to appropriate state funds, is doubtlessly the formal—and to a good extent one of the defining—and actual characteristics of the modern state. Anything that detracts from this is characterized as corruption and constitutes law-breaking behaviour (variably defined), with punitive provisions attached to it. The same applies to those other experts and particularly to politicians—a problematic, rather blind spot in Weber’s theory—who are seen as mere temporary incumbents with no entitlements or claims to the appropriation of state resources either. There is an imaginary, institutional and practice-­ oriented element that lives in the murky corners of modernity and cannot speak its name, premised on variably important shadow institutions: neopatrimonialism. Obscurely entangled with their rational-legal components, this is a feature of all modern states, a tricky aspect of concreteness that thrives in their recesses. We must recognize it empirically and treat it theoretically and analytically, not allowing the issue to recede into one more residual category. Eisenstadt once pointed it out, stressing its modernizing inclinations, in this regard at variation with traditional modernization theory. He mistakenly opposed it to the nation-state, as though a neopatrimonial apparatus was inimical to citizenship tout court (something he did not fully say, but we can sense from the way he phrased the issue).50 Not only does neopatrimonialism appear only in specific instances of the modernizing state, it cuts across them all, implying a contradictory principle vis-à-vis the rule of law and citizenship, such as formerly outlined, without entailing a complete disregard for them. As a matter of fact, it presupposes and reacts to them as veiled corruption. This happens irrespective of whether some

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states are more ridden by shadow institutions and practices than others, most countries in Europe and the US having variably strong mechanisms of control of this sort of practice within their borders, what happens outside them is at least until more recently mostly disregarded. Neopatrimonialism involves societal agents of all sorts, from citizens who want to escape state regulations and taxes to businesspeople who want contracts and advantages from officials and politicians. It must however be conceptually kept as an aspect of the administrative-political apparatus, complemented with a possible and recurrent connection with the other side of the state-society divide. That said, we need to recognize that neopatrimonialism can assume very pervasive and violent expressions. If Tilly argued, with some exaggeration, that the state was constituted more or less like an official mafia, many states preserve indeed elements of neopatrimonial exploitation of society at large by very brutal means.51 This may imply very fuzzy frontiers, especially with explicit albeit hidden (sometimes not even that much) criminal forces at the other side of the societal divide in which the public administration, particularly but not only the police or the army, play a very different role from what liberal strictures propound. These states may be fully modern, their own way; they surely falsify very strongly the abstract experience of rights, law and citizenship, though. Notwithstanding that, this lingers on as the main imaginary normative horizon for people and countries beset by heavy neopatrimonial exploitation.52 3.4.2  Administration and the Law Before deepening the discussion of bureaucracy, we must take up an important issue that clashes with Kelsen’s and other views of law as defined by a hierarchical norm that would, from the top down, putatively close off the legal system. Not only are other sources of law of momentous relevance, with some heterogeneity characterizing the system, but much of what goes on in societal processes elides the influence of state law as well, except in terms of more general parameters. A sort of pluralism can be spotted in any social formation. Many associations have their own rules, customs regulate large swaths of societal life, firms have internal organs to pattern behaviour, global institutions increasingly impact countries’ inner legal processes. Legal pluralism has always proposed a heterodox view of law, which, with the greater pluralism of social life, has overall become more plausible.53 Whether one can speak of such societal rules and regula-

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tions as ‘law’ in modernity—since law has become closely attached to the state—is not so important here: definitions matter less than the identification of the phenomenon. While state law has been paramount and official, a myriad of other ‘legal’ principles and practices have regulated much of social life, sometimes more generally, sometimes referring only to circumscribed domains. Abstractness is not, furthermore, a usual feature of this sort of rule external to the modern state (although this can be thoroughly modern). Contrary to conventional wisdom, administrative law—which we will further examine later in this chapter—for a long time developed in civil law countries, independently from constitutional law. This was a long-­ term survival of the Absolutist Regime, an institutional die-hard. Administrative courts functioned separately from private ones, according to a different logic. This appealed to a supposed ‘public interest’ or ‘collective interest’ defined as prior and superior to individual interests and rights. At the same time, officials were to a large extent shielded from societal charges (in this respect the idea of ‘rule of law’ was not really operative in the sphere of public administration). Only after World War II did administrative law came under the sway of constitutions, and the disconnection of courts and procedures started to be superseded. Paradoxically, this is true of civil law countries; under common law, that division never happened: administrations remained under the unitary purview of ordinary courts, and that evolution was more straightforward.54 Therefore, a contradictory development obtains within the eventual subordination of the administration to constitutional principles and regulations. On the one hand, the most abstract element of them all—fundamental rights—now hovers above bureaucracy, due to such changes in administrative law. The abstract homogeneity and formality of modern legal systems is thereby reinforced. On the other, if we look at the more general social process and its plural features, including those that find their way into formal systems of law, the reverse is in some part true, with, beyond abstractness, the presence of concreteness becoming increasingly felt in the evolution of public administration. 3.4.3  The Multiplication of Bureaucratic Domains Let us briefly recapitulate the characteristics of modern bureaucracy. It has above all been conceived in abstract terms, as comprising professionalized and specialized people, in hierarchical relations, which have no interests

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except those general ones that pertain to the state and to society, without a commitment to any particular group of people either. It should be de-­ politicized and separated from the means of administration. In this vision, bureaucrats are not allowed to profit from the positions they occupy, through perks or bribery. Bureaucracy should constitute a rational-­ instrumental body, whose capacity to adapt means to ends in the most effective way should increase, supporting state rational expediency. For Weber, let us add now, bureaucratization, as one key aspect of the western process of rationalization, consisted in an unstoppable trend with respect to human freedom and the meaning people could attribute to the world and their lives. It would spread to all spheres of social life.55 And so it did. Liberal social democrats like Marshall were of course supportive of such developments, for they represented the advancement of social rights yet did not take the issue up theoretically concerning its meaning for liberalism. Neoliberals would later negatively assess the process, deceptively, however. Social policies of all kinds have been shot through by this bureaucratic trend. The police, the army, tax collection and the courts were the original sites of bureaucratic entrenchment in modernity. Since social issues became central for the development of the modern state, in sanitation and education, health care and labour protection, retirement and housing, provisions for and regulation of childhood and old age, as well as regarding multiplying areas of state intervention we will examine later, this was expanded. Many other aspects of social life have come under the purview and control of bureaucratic bodies. Professionals and experts, in several fields of knowledge, have become increasingly important, from judges and lawyers, to doctors to teachers, to economists, social scientists and psychologists, alongside an administrative body more restrictively defined.56 This resulted in a bureaucratic thickening of the state. In none of these cases is a simple and general abstract perspective any longer what matters. We are miles away from the law and order, night-watch state. We have moved towards an apparatus that potentially embraces all issues, in an increasingly complex society, eventually opaquer, despite, and in some part thanks to, the specialized knowledges it mobilizes.57 Giddens does not connect the issue to the state more directly (he links it closely to surveillance, which should also be understood in some measure as the case here, as we will soon see). This should not prevent us from keeping his thesis in mind when we read him about the mounting significance of ‘expert systems’. Professionals are at the core of state social policies, providing for what we can call ‘rationalized

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reflexivity’, that is, a sort of reflexivity systematically mobilized, which orient their design and implementation, beyond the practical reflexivity people mobilize on a daily basis.58 This evolution entails that the particularities of agents and social relations are brought into the state apparatus inasmuch as bureaucrats and other experts have to deal with them and answer to countless questions, problems and demands from the societal side of the state-society divide. Conversely, these administrative and social service professionals are highly productive in terms of reinforcing, recreating and shifting such issues and the perspectives and identities connected to them, from the top down, now in the societal side of that divide, even though this is not entirely unilateral. Habermas called it ‘juridification’ and the ‘colonization of the life-world’ by self-steered systems, in this case, the political one (somehow buying into Weber’s confused indistinction between bureaucracy and politics regarding who actually exercises domination, Habermas actually ­referring to the former, his political definition of the system notwithstanding).59 Alongside the increasingly important role played by constitutional law in this regard, administrative law, in all its branches, becomes much more complex: it demands a motley of principles of efficiency so as to buttress its intervention in social life. If fundamental rights hold centre-stage in this, law must weigh and balance several variables according to proportionality principles as to the concrete feasibility and the means to answer to demands that keep coming up, regardless of how the state is structured and of the specific doctrines orienting it.60 When we speak of ‘judicialization’, in a different tradition, which includes, among many, such authors as Garapon, a similar phenomenon is at stake, with reference to another branch of the state apparatus: it concerns the projection of the judiciary over societal life, in normative terms, configuring another aspect of the expansion of state power and the complexification of its tasks vis-à-vis society and its demands.61 This is not an entirely novel sort of development. It is part of a trend constitutive of the modern state. Initially, that abstract element had the upper hand, both practically and regarding the imaginary perspective state agents entertained about themselves; they were followed by societal agents. But what Foucault called ‘discipline’ and ‘governmentality’— which he connected through the idea of ‘norm’ and entails surveillance— are very old practices, imaginary elements and institutional configurations. In his polemic with Marxism, Foucault tended to connect those practices more directly to societal forces—and especially to ‘power’ as an entelechy

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devoid of actual agents. Yet it has become obvious, even in his own work, that the state has always played a pivotal role in the establishment of disciplinary ‘dispositifs’ (which operate upon bodies and subjectivities) and governmentality undertakings (which he tended to see as exerted over whole populations), even more so as modernity progressed. This meant of course, in connection with those bureaucratic bodies, the affirmation of concreteness, unfolding in an escalating number of spheres and issues, remarkably but not only in social policy.62 This has not been challenged at all by new developments, mentioned in the foregoing chapter, under the umbrella of so-called New Public Management. Following it, some are prone to confine the state to core domains, but it has been applied unevenly, though pervasively, to the multiplying sites of state intervention in social life. The police and the courts had from the start concrete individuals and collectivities as societal realities before them. They had somehow to cope with their concreteness and especially the police, as we have seen, was very keen on individualizing criminals. It shows permanent bias in relation to concrete collectivities, on racial, ethnic or class terms. Now things have gone much further. It is not only in administrative and social policy bodies that we find an increased attention to the concrete. Concerned with reformism and social justice, the judiciary system in particular has been dedicating more attention to concrete social issues, beyond the abstract countenance of the citizen whom it used to deal with. Social reconstruction, which can hardly tackle the roots of the evils it is wont to challenge, cannot but explicitly face concrete agents, their grievances and specific remedies.63 This is further radicalized by the surge of what has been defined as a fourth generation of rights—‘diffuse rights’. There are no direct holders of these rights—which relate to such wide issues as the environment. They actually expand the reach of law and the area of activity of the judiciary, of courts and of other law operators within the state.64 3.4.4  The Personalization of Politics More directly pertaining to political power, a paramount trend towards the concrete can also be verified: it relates to the actual re-personalization of politics. In Europe, parliamentarism was, until the mid-twentieth century, the basic governmental system—with the exception of Louis Bonaparte’s France and the Weimar republic. Nazism and other sorts of fascism, clashing with liberalism but constituting an absolutely modern political regime,

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re-personalized political power and centralized it in one person (with, underneath, the political police ruling the country). Once again in the confines of liberalism, since the 1950s the executive has become much stronger and writ large. This includes the practice of parliamentary democracies—in which the executive has gained power and autonomy—and certain developments within the US’s presidential system—which also reinforced executive power. In the latter, some stronger element of personalization has always been present, despite indirect elections, while in Latin America presidentialism—or a monarchy that centralized power, in Brazil—has been strong since national independences.65 Demands for the assumption of responsibility by political leaders, transparency and visibility (which appear to be purportedly more difficult to take effect in parliamentary democracies) underlie this developmental trend. This means the reaffirmation of concreteness, against the abstractness and the law-making configuration which modernity originally attributed to political power—which basically should be effaced—in contradistinction to what obtained in absolute monarchies. This is not an absolute trend, but overall it has had powerful traction. This provided a dramatic answer to Weber’s highly problematic request for the development of a ‘charismatic’, that is a strongly personalized sort of political leadership, to counterbalance what he saw as the great danger of modernity—bureaucratization, with its attendant loss of freedom and meaning (even though he deflated it: it was no longer due to supernatural qualities bestowed by God or the like). If it could lead to the ‘palace of authentic democracy’, it would not disappoint Schmitt either, with his penchant for the executive as the site of definition of the ‘exception’ and as controlled by a concrete and operative leader, beyond the empty squabble of parliaments.66 As we will see, this process has been closely connected to the strengthening of state power, concentrated in the executive, reinforcing a trend that was already in motion due to bureaucratization and the expansion of state activities vis-à-vis social policies, such as discussed above. As a truly everlasting issue for liberalism, the dialectic of abstractness and concreteness, in this case regarding outstanding political figures, was played out already during the French Revolution. It was led by men who consciously and consistently rejected the fixation of power in specific institutional positions, who dealt with it collectively through several committees and in a permanent rotative basis, favouring abstractness. Unwittingly, they saw the revolutionary process become incarnated in each of them,

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including Marat and Danton, Saint-Just and, above all, Robespierre, who was deemed its ‘incorruptible’ voice. Actually, Cromwell’s protectorate in the Glorious Revolution had already summoned the problem, the Jacobins believed. In this, as in so many other aspects, the liberal Jacobins leant on the republican past while they tragically announced the themes, contradictions and dilemmas of political modernity.67 This one in particular would become increasingly difficult to domesticate, as Napoleon Bonaparte was soon to make clear. In this respect, as in several others, such a predicament was followed suit by the black anti-slavery uprising, which furthered the French revolution in the colony of San Domingo, eventually dominated and incarnated by Toussaint L’Ouverture, inaugurating the later era of peripheral emancipatory processes.68

3.5   The Thickened Experience of Citizenship With the strengthening and ampliation of rights, citizenship becomes, or may become, a thick rather than thin concept. As far as the rule of law did achieve a proper deployment with a genuine universalist character, citizenship implied, as Marshall wished, a common status, even at its primary and limited stage, and much more so if strong welfare states thrived. Admittedly, this has not been the case in many countries. Yet it remains a telos, notwithstanding its likely embattlement and maybe enfeeblement today, implying the respect of everyone’s civil rights—increasingly in left-wing discourses too, although in many cases it is supposed that this could not be achieved in capitalism. With the expansion of rights, especially political and social rights, as well as the full array of diffuse, fourth generation rights that have arisen of late, citizenship has become thicker, or at least that was the direction taken by its developments until not long ago. Not only may citizenship thereby increase its weight in the modern imaginary, this could in addition entail an enlargement of that common status and significantly matter for the experience people have of themselves and of other individuals and collectivities. The citizenship form, with all its attendant phenomenological web, including background elements, horizons and typifications, acquired further and more consistent meanings. Note that the generalized other we found in Chap. 1, which was radically abstract, takes up more concrete and differentiated content, in what regards both citizens and officials as well as experts. This also tends to imply a thickened relationship with the state’s machine. Once they are rolled back, though, as in several cases they have been, experience changes

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or its development in that regard stalls; citizenship becomes thinner, that common status dwindles and the relation with the state unwinds. At best, these elements simply do not develop further in a thickening direction. This is the case even when targeted social policies that deal with poverty are enacted, since these do not boost that common status and an egalitarian experience, regardless of how much they may count for a reduction of extreme destitution. I argued in Chap. 1, rejecting sheer and unmediated rationalism, that there is a strong reifying and magic (supernatural) element in the way citizenship and rights constitute us as individuals. I further stated that once these social forms take hold of subjective and practical experience, organizing it, that enchantment has overwhelming consequences in its symbolic efficacy. This is not detrimental to their emancipatory potential and reality, for emancipation makes sense only within the frame of this encompassing imaginary construction, nor to a temperate approach to rationality. Social citizenship, and even to some extent social liberal policies, insofar as they are misunderstood as rights, reinforces this emancipatory prospect. However, the juncture of freedom and equality implies an essential imaginary instability.69 More recently a one-sided affirmation of liberty, against equality, has in particular become all-powerful, with the rise of neoliberalism. Moreover, due to many inequalities that escape its tentative regenerative reach, citizenship is not capable, even in its most developed configuration, to fully realize equal freedom. Yet we cannot, it seems, dodge its spell. Our enchantment with rights and their supposedly endless development or accumulation is so deeply ingrained that we end up believing that the mere fact that we possess them, or even perhaps that we can fight for them, enables us to change our position in the world, without really challenging more directly and thoroughly deeper social arrangements.70 This general imaginary horizon as well as the struggles to which it is connected, so as to bring about its values, are in themselves a crucial source of law, with strong moral undergirds and renewed political demands. To be sure, the fact that no-go imaginary and practical areas set by dominant power holders today have multiplied and their boundaries become even tighter dynamically and institutionally answers also to a large extent for the surrogate role the struggle for rights may be seen to perform. A crucial element that was formally expelled from the abstractness of the modern state, ‘religion’—as such an invention of modernity through its contraposition to the idea of ‘secularization’, neither of them eternal ways of conceiving the world—is also an instance of concreteness. It was

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supposed to live in the private dimension of social life and its mere presence in public as such could be questioned. It might pose a real challenge to the state—in many situations it has done indeed, through religious parties which have been extremely active, viz. organizing especially Islamic radicals, though Christians, Buddhists and Hindus have also partaken in this sort of project. After all, citizens have a ‘religion’, are ‘agnostics’ or embrace ‘atheism’. They organize around it and its strong persuasion. For modernization theory, religion would simply recede, reason substituting for it. They thought, wrongly, that it was a relic of the past rather than a creation of modernity. Yet this does not happen. By and large there is some sort of differentiation of religion from political power, which is not however absolute as they thought it would be, without simply remaining like it supposedly was in past, according to critics of the concept of differentiation. Religion penetrates more or less deeply—or not at all—the fabric of citizenship and state bureaucracy, with distinct levels of involvement with political forces and influence in the public sphere, as well as legitimation of the political order and of the state. In some cases, hybridizations with other civilizational heritages imply mixed responses from and upon the state, when religious legitimation may be stronger. These may combine, as for instance in India at least until recently, clear-cut rationalism and a tolerant support of them all.71 What remains in an extremely problematic position is nature—not only our ‘environment’, well taken care of by diffuse rights. Rights, even when collectively phrased, to a large extent frame subjective demands of citizens and the objectivity of the state apparatus furnish the underpinnings for the penetration of concreteness within the abstract universe of political modernity. Nature, in turn, maintains an absolute external positioning vis-à-vis political modernity. Even our body can be somehow dubiously brought into the rights-form, as a part of ourselves ruled over by rationality/reason. Since objective natural law was substituted by modern subjective rights, it is extremely difficult to make nature fit the framework, to start with the rights of animals, taken as sentient beings. To be sure, representation and politics have had increasingly to cope with collectivities embedded in their material dimension and with scientific disputes coming to the fore. This implies social and environmental questions, thereby further tearing the abstract purity of original liberal politics. Nonetheless, within political modernity, it cannot but stop at this veritable threshold. Recent attempts notwithstanding, such as in the 2008 Ecuadorian Constitution, to attribute rights and even subjectivity to nature—for which, as a ‘principal’,

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an ‘agent’ would in any case have to act—there is hardly room for such a move if the whole cognitive, normative and aesthetic framework of modernity is not overhauled. Concrete indeed is nature. It challenges political modernity far beyond what it can truly accommodate, beyond the rights in rem (‘real rights’) view of property (also of ‘future generations’), our limited belonging in it and the operations of the thickened state administration, whatever may someday emerge to substitute it as an imaginary signification. Till then, although it can become a huge political, legal and policy issue and be even properly treated, the exteriority of nature seems not to be amenable to a conversion. This cannot be changed out of sheer will or witty.72

3.6   Developmental Processes and Trend-Concepts The movement we have examined thus far is part and parcel of the more general progress of modernity, which we can characterize through a succession of phases, as pointed out in my introductory remarks to this book. It has started within a liberal restricted framework. At this stage, if the market appeared as its main telos, abstractness was at the crux of political modernity, including civil and, to some extent in its beginnings, political citizenship. It was followed by state organized modernity, more encompassing and in which the state had a stronger role to play, with social citizenship building up. In this contemporary, advanced phase in which we now live, complexity and pluralism have been heightened, with social liberalism strongly affirmed. In both the second and the third phases, concreteness has come to the fore, due to tensions internal to modernity, within liberalism as well. These were, however, propelled by pressures exerted from the societal side upon the state. The phases as such are contingent on their overall structuration. Within this process there is a movement with clear directionality, not irreversible for sure, in which complexity and concreteness make their presence deeply and inescapably felt. We must now pause to consider some methodological questions that will lend a more systematic perspective regarding what the analysis hitherto carried out has achieved. Which are the mechanisms that yield this trend? We can answer this in a theoretically realist way, borrowing insights from Bhaskar’s ‘critical’ and ‘transcendental’ realism, although without allegiance to his overall perspective. He embraced a reified view of social life by making recourse to the idea of ‘structures’. I am in contradistinction concerned with social

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processes and the trend-concepts we can craft to grasp them.73 We can also thereby go beyond an interpretation of Weber’s work, according to which his developmental trends relate to rationalization as merely ‘heuristic devices’.74 Instead, developmental trends conform to substantive processes, as I believe was Weber’s intimate persuasion and Marx glowingly showed in Capital.75 These processes must be framed analytically, through trend-concepts, as I have indeed tried to do here. In so doing we must avoid reification. This is the best way to combine theory and properly descriptive/narrative accounts, especially when we carry out empirical investigations, informed by the former rather than merely piling up descriptions and examples through the latter.76 Behind the original emergence of citizenship and its development in the direction of incorporating a social component lies a rather conflictive sort of dynamic—as well as cooperative endeavours. If law mediates between individuals, with the state as an intervenient agent, its development was marked by fierce battles and the effort to arrive to new sorts of agreement. Modern law and the modern state are heirs to an extremely complex progression during the Christian medieval age, in which the separation between the abstract and the concrete slowly came about. We can glimpse this in the trajectory of the imaginary ‘King’s two bodies’, especially according to British doctrines, with other constructions leaning in a similar direction on the continent. One was specific and mortal, that is concrete, the other more abstract and everlasting.77 A rupture (a ‘tipping-­point’, if you will) was achieved at a certain stage in the history of emerging Europe, in which what can be stylized as the ‘rights discourse’ came to the fore. As we have seen, successive waves of rights marked the successive phases of modernity, with abstractness calling the shots and concreteness initially kept at bay, just to be increasingly intensified. We had thereby the passage from instituting citizenship to instituted citizenship, a process time and again reiterated, in which social struggles and new forms of social cooperation, sometimes imaginarily framed by the ‘social contract’, have played a decisive role, though the process is by no means irreversible, that is, unidirectional, more social liberal policies supplanting citizenship proper in the last decades.78 Specific institutions have also helped to structure this developmental trend, especially the positivization of rights and the build-up of the modern state in connection to citizenship, alongside a bureaucracy geared towards dealing with it. Paradoxes linked to the emancipatory elements of rights and their framing and reduction of social life stem from this, since neither of these is avoidable in the dynamic development of modernity.79

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Polanyi tried to grasp this dynamic with the idea that a liberal utopia was forced from the top down, using state power to disembed abstract markets from social relations, with society eventually reacting in the search for ‘self-protection’. The first argument is somewhat excessive, in that it overlooks how markets had a prior long-term development, while the second begs the question of the agents of that protective, movement.80 Nevertheless, the general direction of the processes he identified is the same as the one pointed out here. This implies so-called path dependencies, but not simply, exactly, mainly or always, because ‘costs’ to change route are high. This explanation is problematic even when this may be partly the case, for instance, regarding technical and economic issues and investment decisions, as well as more generally because waste of human vital energy is something individuals and collectivities are prone to avoid, except if this serves other, superior ends, whatever these may be.81 Those paths are reiterated for many reasons, partly constituted by the paths themselves. Individuals and collectivities share an imaginary, within which some fundamental values persist as strong social memories, orienting action and movement, regardless of being somewhat free-floating. We live under institutional arrangements connected to habits and ways of thinking, cognitive frames and normative patterns, established identities, interests and preferences. We entertain projects which are more or less successful and which show more or less social strength vis-à-vis each other, some of them becoming deeply institutionalized. The directionality of social development, with the constitution of trends, emerges from these interlaced elements, which are, taken together, difficult to deflect. The agents and mechanisms underlying the reproduction of social memories, institutionally or at the imaginary level, may, all the same, change and social creativity may be intensely exercised, more or less altering the paths into which the reproduction and transformation of social life are channelled. I have mostly referred in the chapters that compose this part of the book to reiterative mechanisms that have taken citizenship and some key features of the modern state in a direction of development that implies some level of change, with concreteness coming to the fore and piercing through abstractness, without however breaking away from the rights mould and legal-rational bureaucratic domination, that is, the modern state. Reiterative mechanisms must be seen as simultaneously transformative, with social creativity intervening, surely to a lesser extent, insofar as the changes they are associated with entail no rupture of the main patterns

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of modernity. At further stages, we will have the opportunity to discuss the generative mechanisms that have brought this about and transformative mechanisms that, as of today, may take us away from this civilization.82 One might argue that all this may be true of the West, not of other areas of the world. Yet, if different civilizational heritages and a global division between centre, semi-periphery and periphery, in different moments and across particular paths, must always be recognized for each country and region, in each phase of modernity, its generalization and the trends associated to it have been operating everywhere.83 In these processes, beyond traditional modern thought and the crucial role individuals play in social process, we can hardly exaggerate the role of collectivities, more technically, collective subjectivities. The social sciences have usually resisted any concept of agent going beyond individuals, although they have used and abused collectivities as ‘actors’ in all their, in this respect ad hoc, descriptions (and even explanations) of social life. ‘Action’ has been attributed to couples, unions, nations, classes, genders and all the array of substantive collective agents that restlessly crop up in these disciplines, as definitely daily ordinary language plainly does. This is inevitable and only deep-seated presuppositions of modern thought, namely, the polarization between individualism and collectivism, including the individuals we have found in both sides of the modern divide, prevent us from recognizing their ontological reality and push social scientists to fall back on those polarized and exclusive concepts of active individuals and passive collectivities. Of course, the state is included among these collective subjectivities, an issue that appeared in Chap. 2 and whose solution I deferred until further elaboration. The nation or the people share the same condition. Collectivities interact with each other in several ways. It is only in and through these relations, with their collective causal impact, that they exist and are more or less aware of themselves, are rooted in the natural environment, weave together a symbolic-hermeneutic fabric and delineate space-time coordinates, with all these dimensions cut across by social power. This does not mean that they have clear intentions, that they are centred, having clear identity and organization; the opposite may be true and still they can exert enormous causal influence: collective subjectivities are variably centred, count on a higher or lower level of identity and organization, and hence possess a correspondingly variable level of intentionality (those two elements varying however independently).84 All mechanisms rest upon their movement rather than on structures, whose putative causal

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impact remains shrouded in a fog. Alongside individuals, collective subjectivities generate, reiterate and transform social relations and processes, whether these are more or less random, establish particular and specific path dependencies or imply general, long-term directional processes. Collective subjectivities carry out episodic moves which, in modernity, become modernizing moves. These are contingently enacted and are often permeated by hybrid civilizational influences, since modernity worldwide has combined with or incorporated elements from other civilizations. These are always to some extent creatively refashioned. Yet, partly locked into imaginaries and institutions, relations and practices, these moves frequently evince a directionality in which developmental processes are discernible. Trend-concepts allow us to grasp them. It has been therefore within the bounds of a specific political imaginary, connected to specific practices, and within the malleable bounds of modern juridical-political institutions, which they alter too, that collective subjectivities have propelled the developments examined in the first part of this book. Societal as well as state agents are responsible for them, with different levels of intentionality, although the imaginary as such poses to agents a general, open telos for their moves and the development of social life. This telos revolves around the cluster of imaginary significations we have analysed, with on the other hand a higher level of indeterminacy. Such significations are themselves magmatic, while practices and institutions are not univocal either. In any case, collective subjectivities have together pushed forward the developmental processes of political modernity and will carry on doing so, with their variable (de)centred modernizing and post-modernizing moves. The resultant impact of their cooperation and conflict shapes present, past and future history. Their modernizing moves have run mainly on the tracks of a reiteration of the main patterns of rights, law and state emergent in the late eighteenth ­century, anchored especially on the notion of citizenship, although crucial changes have been made visible. Pristine categories were thereby modified, with concreteness intensified and social struggles offering renewed interpretations and working as a source of law. A revolutionary, post-­ modernizing alternative, based on radical transformative moves, was tried out, having, when it partly gave up on simply jettisoning law and rights, resumed part of those imaginary and institutional elements (rights, law, state, citizenship, with property rights changed or discarded). For reasons beyond the scope of this book, that socialist alternative eventually failed. It did not live up to its project and promise. We remain therefore in the

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bounds of modernity and its developmental dynamic, in which, more than ever before, we are fully enmeshed. Our analysis of developmental trends and trend-concepts, with their underlying mechanisms and connection with collective subjectivities, does not stop here, though. We will return to and extend it in the second part of this book. The discussion of representation carried out in the former chapter built a transition to the present one. It also serves as a bridge to the following chapter: representation almost directly entails the constitution of a political system. This will be our object of inquiry now.

Notes 1. Jules Michelet, ‘Preface de 1869’, in Histoire de France, vol. 1 (Paris: A. Lacroix & Ce. Éditeurs, 1880). 2. Ernest Renan, ‘Qu’est-ce qu’une nation’? (1882), in Qu’est qu’une nation? et autres éscrits politiques (Paris: Imprimerie Nationale, 1996). 3. Otto Bauer, Die Nationalitätenfrage und die Sozialdemokratie (1907, 1924), in Werkausgabe, vol. 1 (Vienna: Europaverlag, 1975), especially pp. 88ff. 4. Ernest Gellner, Nations and Nationalism (Oxford: Basil Blackwell, [1983] 2006); Anthony Smith, National Identity (London: Penguin, 1991); Benedict Anderson, Imagined Communities: Reflections on the Original Spread of Nationalism (London and New  York: Verso, 1991); Eric Hobsbawm, Nations and Nationalism since 1780 (Cambridge: Cambridge University Press, 1992). Purely civic nations and the ‘patriotism of the constitution’ entice Jürgen Habermas, ‘Volkssouveränität als Verfahren’ (1988) and ‘Staatsbürgerschaft und nationale Identität’ (1990), in Faktzität und Geltung: Beitrag zur Diskurstheorie des Rechts und des demokratischen Rechtsstaat (Frankfurt am Main: Suhrkamp, 1992). 5. B. Anderson, The Spectre of Comparisons: Nationalism, Southeast Asia, and the World (London and New York: Verso, 1998). 6. Max Weber, Wirtschaft und Gesellschaft. Grundriβ der verstehenden Soziologie (Tübingen: J.  C. B Mohr [Paul Siebeck], [1921–22] 1980), pp. 234–44. 7. Charles Tilly, Coercion, Capital, and State, AD 990–1992 (Oxford: Blackwell, 1992, revised edition), pp. 2–3. 8. See Gerard Delanty (ed.), The Sage Handbook of Nations and Nationalism (London and New  York: Routledge, 2006), especially T.  K. Oomen’s chapter, ‘Nation and nationalism in South Asia’; Wang Hui, China from Empire to Nation-State (Cambridge, MA: Harvard University Press, [2004] 2014).

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9. See Maurizio Viroli, Love of Country: An Essay on Patriotism and Nationalism (Oxford: Clarendon, 1995). 10. Jochen Schlobach, ‘People’, in Michel Delon (ed.), Encyclopedia of the Enlightenment, vol. 1 (London and New York: Routledge, [1997] 2002); Margaret Canovan, The People (Cambridge: Polity, 2005). 11. Carl Schmitt, Verfassungslehre (Berlin: Duncker & Humblot, [1928] 1993), pp. 148–50. For those classical authors, John Locke, Second Treatise (1689), in Two Treatises on Government (Cambridge: Cambridge University Press, 1988), chap. 7; Jean-Jacques Rousseau, Du Contrat social, ou principes du droit politique (1762), in Ouevres complètes, vol. II (Paris: Seuil, 1971), passim. He stressed the necessity of attending to customs and particularities of each country when the sovereign enacts and enforces its laws (chap. 1.6). 12. Johann Gottfried Herder, Abhandlung über den Ursprung der Sprache (Hamburg: Reclam, [1770] 1986); Idem,  Auch ein Philosophie der Geschichte zur Bildung der Menschheit (Hamburg: Reclam, [1774] 1990). Michelet (op. cit.) also stressed the organic nature of nations. 13. Pierre Rosanvallon, Le Peuple introuvable. Histoire de la représentation démocratique en France (Paris: Gallimard, 1998), pp. 15–23. 14. Carl Schmitt, Der Begriff des Politischen (Berlin: Duncker & Humblot [1932] 2009). 15. Cf. J. Michelet, Le Peuple (Paris: Flammarion, [1846] 1992). 16. Ernesto Laclau, On Populist Reason (London: Verso, 2005). 17. Boaventura de Sousa Santos, Refundación del Estado en América Latina (Lima: Instituto Internacional de Derecho y Sociedad, 2010). His postmodernism and post-colonialism overlook how bi/pluri-national states are common in modernity, though often seen as problematic. 18. Theodor W.  Adorno and Max Horkheimer, Dialektik der Aufklärung (Frankfurt am Main: Suhrkamp, [1944] 1984). 19. Karl Polanyi, The Great Transformation: The Political and Economic Origins of our Time (Boston: Beacon [1944] 2002); Robert Castel, Les Métamorphoses de la question sociale. Une cronique du salariat (Paris: Fayard, 1995); Ferenc Fehér, The Frozen Revolution: An Essay on Jacobinism (Cambridge: Cambridge University Press and Paris: Maison des Sciences de l’Homme, 1987), pp. 129ff. 20. Partha Chatterjee, The Politics of the Governed: Reflections on Popular Politics in Most of the World (New York: Columbia University Press, 2004), pp. 28–29, 34ff. 21. T. H. Marshall, ‘Citizenship and social class’ (1950), in Class, Citizenship and Social Development (Garden City NY: Double Day, 1964); Richard M.  Titmuss, ‘The role of redistribution in social policy’, Social Security Bulletin, vol. 26 (1965). Titmuss noted that welfare services, fiscal welfare

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and occupational welfare are related to different and contradictory principles, affecting differentially the middle and the popular classes. 22. José Maurício Domingues, ‘From citizenship to social liberalism or beyond? Some theoretical and historical landmarks’, Citizenship Studies, vol. 21 (2017); Idem, ‘Social liberalism and global domination’ (2013), in Breno Bringel and Heriberto Cairo (eds), Critical Geopolitics and Regional Reconfigurations: Interregionalism and Transnationalism between Latin America and Europe (New York and London: Routledge, forthcoming). 23. Titmuss, op. cit., p. 16. 24. Marshall, op. cit.; Claus Offe, Strukturprobleme des kapitalistischen Staates (Frankfurt am Main: Suhrkamp, 1973), pp. 30–31, 38–40ff; Gosta EspingAndersen, Politics against Markets: The Social-Democratic Road to Power (Princeton, NJ: Princeton University Press, 1988). A late social-democratic liberal, philosophical perspective—which resumes the social contract tradition, now outside natural law and rather neo-Kantian—became available with John Rawls, A Theory of Justice (Cambridge, MA: Belknap, [1971] 1999). Abstract ‘logocentrism’ is its hallmark, including the thought experiment and regulative idea of the ‘veil of ignorance’, within which individuals with no qualities might collectively redistribute benefits. 25. Iris M.  Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, [1990] 2011). 26. Karl Marx, ‘Kritik des Gothaer Programs’ (1875), in K. Marx and Friedrich Engels, Werke, vol. 19 (Berlin: Dietz, 1987), pp. 20–21. 27. Jorge Sayeg Helú, El constitucionalismo social mexicano. La integración constitucional de México (1808–1988) (Mexico: Fondo de Cultura Económica, 1991). 28. R.  M. Titmuss, ‘What is social policy’ (1974), in Stepham Leibfried and Steffen Mau (eds), Welfare States: Construction, Deconstruction, Reconstruction (London: Edward Elgar, 2008), pp. 30–32. This classification was taken further by G. Esping-Andersen, The Three Worlds of Welfare Capitalism (Princeton, NJ: Princeton University Press, 1990). In another context, see Wanderley Guilherme dos Santos, Cidadania e justiça: a política social na ordem brasileira (Rio de Janeiro: Campus, 1979). For Latin American twentieth century’s corporatism—within a social constitutionalist mould—Hobart Spalding Jr., Organized Labor in Latin America (New York: Harper & Row, 1987). The Arab world and the Middle East more generally developed their own brand of corporatism, for which see Kjetil Selvik and Stig Stensile, Stability and Change in the Middle East (London and New York: I. B. Taurus, 2011), pp. 56–60. In Chap. 4, a more directly political assessment of corporatism will be put forward. 29. François Ewald, L’Etat providence (Paris: Grasset, 1986).

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30. K.  Marx, Das Kapital. Kritik der politischen Ökonomie, especially vol. 1 (1867, 1873), in K.  Marx and Friedrich Engels, Werke, vol. 23 (Berlin: Dietz, 1962); Luiz Werneck Vianna, Liberalismo e sindicato no Brasil (Rio de Janeiro: Paz e Terra, 1976); with a more juridical perspective, Franz Z. Neumann, ‘Labor law in modern society’ (1951), in F. Z. Neumann and Otto Kirscheimer, W. E. Scheuerman (ed.), The Rule of Law under Siege (Berkeley and Los Angeles: University of California Press, 1996). 31. This was not understood by Schmitt, op. cit., pp. 1ff. 32. See Robert Alexy, Theorie der Grudrechte (Frankfurt am Main: Suhrkamp, 1985), chaps. 4, 9. 33. Cf. Enzo Traverso, A ferro e fuoco. La guerra civile europea 1914–1945 (Bologna: Il Mulino, 2007). 34. Amartya Sen, Development as Freedom (New York: Anchor, 1999). Elsewhere, prior to his more general take on development, he raised some interrogations as to the effectiveness of targeting and insisted on ‘capabilities’ (rather than poverty), without rejecting it. Idem, ‘The political economy of targeting’, in Dominique van de Walle and Kimberly Nead (eds), Public Expending and the Poor: Theory and Evidence (Baltimore, MD and London: The John Hopkins University Press, 1992). His philosophical approach is however fully amenable, intrinsically inclined indeed, to the attribution of minimal resources to allow for basic (or actually minimal) ‘freedoms’. 35. J. M. Domingues, Modernity Reconstructed (Cardiff: University of Wales Press, [2002] 2006), pp. 163–66. 36. J.  Habermas, ‘Kampf um Anerkennung in democratischen Rechsstaat’ (1993), in Die Einbeziehung des Anderen (Frankfurt am Main: Suhrkamp, 1996). For a philosophical discussion of sectorialized policies—‘groups politics’—see Young, op. cit. 37. Santos, Refundación del Estado en América Latina., pp. 88ff. 38. Gyorg Lukács, Geschichte und Klassenbewusstsein. Studien über Marxistische Dialektik (1923), in Werke, vol. 2 (Darmstadt: Luchterhand, 1977), p. 1. 39. J. M. Domingues, ‘Democratic theory and democratization, in contemporary Brazil and beyond’, Thesis Eleven, vol. 114 (2013). 40. J. Habermas, Theorie des kommunikativen Handelns (Frankfurt am Main: Suhrkamp, 1981), chap. 8; Abram de Swaan, In Care of the State: Health Care, Education and Welfare in Europe and the USA in the Modern Era (Oxford: Oxford University Press, 1988), pp.  232–33; Young, op. cit., chap. 3. 41. Wilhelm von Humboldt, Ideen ein Versuch, die Gränzen der Wirksamkeit des Staats zu bestimmen (Stuttgart: Reclam, [1792, 1851] 1991); Frederick A. Hayek, The Road to Serfdom (Chicago: The University of Chicago Press, [1944] 1994).

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42. J. M. Domingues, Social Creativity, Collective Subjectivity and Contemporary Modernity (Basingstoke: Macmillan and New  York: Saint Martin’s Press, 2000), chap. 7. 43. Weber, op. cit., pp. 499ff. 44. Pierre Rosanvallon, Le Bon gouvernement (Paris: Seuil, 2015), p. 87. 45. Neumann and Kirchheimer, op. cit.; F.  Z. Neumann, The Rule of Law: Political Theory and the Legal System in Modern Society (Oxford: Berg, [1936] 1986) (their perspectives varying over time); Roberto Mangabeira Unger, Law in Modern Society (New York: Free Press, 1976), pp. 192ff; C. Schmitt, Legalität und Legitmität (Berlin: Duncker & Humblot [1932] 1998). 46. Philippe Nonet and Philip Selznick, Law and Society in Transition: Toward Responsive Law (New Brunswick, NJ and London: Transaction, [1978] 2001), chap. 3. 47. R.  M. Unger, The Critical Legal Studies Movement: Another Time, a Greater Task (London and New York: Verso, [1983] 2015). 48. Regina Quaresma, Maria Lúcia de Paula Oliveira and Farlei Martins Riccio Oliveira (eds), Neoconstitucionalismo (Rio de Janeiro: Forense, 2009). Many, sometimes disparate, currents have moved in this direction, including Alexy and Ferrajoli, as well as, to some extent, Dworkin. I have mobilized them at different stages in this book. 49. Christopher Pierson, Beyond the Welfare State: The New Political Economy of Welfare (Cambridge: Polity Press, 2006, 3rd edition); G.  EspingAndersen (ed.), Welfare States in Transition: National Adaptations in Global Economies (London: Sage, 1996); Jean Cohen, ‘Changing paradigms of citizenship and the exclusiveness of the demos’, International Sociology, vol. 14 (1999). 50. Shmuel N. Eisenstadt, Traditional Patrimonialism and Modern Neopatrimonialism (Beverly Hills, CA and London: Sage, 1973). I discussed this in a number of places—suggesting we recast this concept, as well as others, analytically, beyond its usual ideal-typical mould. This epistemological strategy would avoid the reification of an idealized form of the modern state. J.  M. Domingues, Global Modernity, Development, and Contemporary Civilization: Towards a Renewal of Critical Theory (New York and London: Routledge, 2012), pp. 51, 85, 214, 222. 51. C. Tilly, ‘War making and state making as organized crime’, in Peter Evans, Dietrich Rueschemeyer and Theda Skocpol (eds), Bringing the State Back in (Cambridge: Cambridge University Press, 1985). 52. For Brazil, this was originally discussed by Sérgio Buarque de Holanda, Raízes do Brasil (São Paulo: Cia. das Letras, [1936] 1995, 26th edition). The argument does have more general validity.

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53. Georges Gurvitch, ‘Problème de sociologie du droit’, in Georg Gurvitch (ed.), Traité de sociologie, vol. 2 (Paris: Presses Universitaires de France, 1968); B.  S. Santos, Toward a New Common Sense: Law, Science, and Politics in the Paradigmatic Transition (New York and London: Routledge, 1995); Antonio Carlos Wolkmer, Pluralismo jurídico. Fundamentos de uma nova cultura do direito (São Paulo: Alfa-Ômega, 2001, 3rd edition). 54. Alexis de Tocqueville, L’Ancien Regime et la Révolution (Paris: Gallimard, [1856] 1952), Book II, chap. 4; Georg Jellinek, System des subjektiven öffentlichen Rechte (Tübingen: Mohr Siebeck, [1892, 1905] 2011), chap. 3; Gustavo Binenbojm, Uma teoria do direito administrativo. Direitos fundamentais, democracia e constitucionalização (Rio de Janeiro: Renovar, 2008). This is overlooked by Unger, op. cit., p. 54. The main treatise on the topic was, for a long time, Maurice Hariou, Droit administrative et droit publique (Paris: Recueil Sirey, [1882] 1927). It was very realistic about the imbalance between state and citizens, due to its power of ‘direct action’ and the system of ‘domination’ it implied, but mistakenly interpreted the French development of administration, based on centralization and the subordination of the judiciary, as a general trend. 55. Weber, op. cit., pp. 394ff, 456ff, 510–13. 56. Swaan, op. cit., pp. 11, 225–29, 230ff. 57. Niklas Luhmann, ‘Theoretischeorientierung der Politik’ (1980), in Soziologische Aufklärung (Öpladen: Westdeutscher, 1981); B. Guy Peters, The Politics of Bureaucracy (White Plains, NY: Longman, 1995, 4th edition), chaps. 1–2. 58. Anthony Giddens, The Consequences of Modernity (Cambridge: Polity, 1990), pp. 1ff, 112ff. I critically proposed a different conceptualization of ‘reflexivity’ in Domingues, Social Creativity, Collective Subjectivity and Contemporary Modernity, chap. 3. 59. Habermas, Theorie des kommunikativen Handelns, pp. 489ff. 60. Binenbojm, op. cit., pp. 29ff; This implies ‘optimization requirements’ of constitutional law, as argued by Alexy (op. cit., chap. 3), or the attention to general ‘principles’, as suggested by Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977), pp.  38ff. Although they do not mean the same, both imply the role of values in guiding policies, against positivist legal perspectives. 61. Antoine Garapon, Le Gardien des promesses. Justice et democratie (Paris: Odile Jacob, 1996). 62. Michel Foucault, Surveiller et punir: naissance de la prison (Paris: Gallimard, 1975); Idem, Histoire de la sexualité, vol. 1. La volonté de savoir (Paris: Gallimard, 1984); Idem, Naissance de la biopolitique. Cours au Collège de France, 1977–1978 (Paris: Gallimard/Seuil, 2004); Idem, Il faut defendre la société. Cours au Collège de France, 1976 (Paris: Gallimard/Seuil, 1997);

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Idem,  Sécurité, territoire, population. Cours au Collège de France, 1977– 1978 (Paris: Gallimard/Seuil, 2009). 63. R. M. Unger, What Should Legal Analysis become? (London: Verso, 1986), pp. 34ff. In any case, the ‘juridical field’ has concrete aspects that distinguish it from its imaginary model. Pierre Bourdieu, ‘La force du droit. Éléments pour une sociologie du champ juridique’, Actes de la recherche en sciences sociales, vol. 64 (1986). 64. Norberto Bobbio, L’etat dei diritto (Turin: Einaudi, [1990] 1997), chap. 5. 65. If in the US there was a half-failed effort to check the power of the presidency, since the nineteenth-century Latin America has had a penchant for strong presidentialism, including originally, with a very skewed reading of that former experience, Simón Bolívar, ‘Discurso pronunciado ante el Congreso, en Angustura, el 15 de febrero de 1819’, in Discursos y proclamas (Caracas: Fundación Biblioteca Ayacucho, 2007); Juan Bautista Alberdi, ‘Bases y puntos de partida para la organización de la república argentina, derivados de la ley que preside al desarrollo de la civilización en la América del Sur’ (1852), in Política y sociedad en Argentina (Caracas: Fundación Biblioteca Ayacucho, 2005), chap. 23; Justo Sierra, Evolución política del pueblo mexicano (Caracas: Fundación Biblioteca Ayacucho, [1990–1902] 1997), pp.  327–28. The fragility of the state, the risk of fragmentation and the lack of law enforcement bolstered the main argument. The Brazilian ‘constitutional’ monarchy, with symbolic representation concentrated in the executive, included a fake role for the ‘moderating power’, which really governed almost unimpeded. For an overview, Roberto Gargarella, La sala de máquinas de la constitución. Dos siglos de constitucionalismo en América latina (1810–2010) (Buenos Aires: Katz, 2014). 66. Rosanvallon, Le Bon gouvernement, pp. 69ff, 111ff, 155ff, where he not very convincingly points to courts and other agencies charged with keeping generality and impersonality; Weber, ‘Der Reichspräsident’ (1919), p.  501, and ‘Parlament und Regierung in neugeordneten Deutschland’ (1918), in Gesammelte politische Schriften (Tübingen: J. C. B Mohr [Paul Siebeck] 1988); Schmitt, Der Begriff des Politischen. 67. The literature is boundless, but see Colin Haydon and William Doyle (eds), Robespierre (Cambridge: Cambridge University Press, 1999), especially the chapters by David P. Jordan and Marisa Linton. 68. C.  L. R. James, The Black Jacobin: Toussaint L’Ouverture and the San Domingo Revolution (New York: Vintage Books, [1938] 1963). Not only personification, but the social question and state rational expediency, under a personal autocracy, can be spotted already there, as much as in metropoli-

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tan France’s post-Thermidorian Consulate. San Domingo revolution included, however, a new agenda: anti-colonialism and anti-racism. 69. Étienne Balibar, ‘La proposition de l’égaliberté’ (1989), in La Proposition de l‘égaliberté (Paris: Presses Universitaires de France, 2010). 70. Critical Legal Studies frowned upon this. Cf. Unger, What Should Legal Analysis Become?, pp. 36ff, 51ff, 72, though, more optimistically, 129ff. 71. Peter Berger, The Sacred Canopy: Elements of a Sociological Theory of Religion (Garden City, NY: Double Day, 1967); José Casanova, Public Religions in the Modern World (Chicago: Chicago University Press, 1994); Ashis Nandy, ‘The politics of secularism and the recovery of religious tolerance’ (1990), in Times Warp: Silent and Evasive Pasts in Indian Politics and Religion (New Brunswick, NJ: Rutgers University Press, 2002); T. N. Madan, Modern Myths, Locked Minds: Secularism and Fundamentalism in India (New Delhi: Oxford University Press, 1997); Abdel Salam Sidahmed and Anoushiravan Ehteshami (eds), Islamic Fundamentalism (Boulder, CO: Westview, 1996); J. M. Domingues, ‘Global modernity, levels of analysis and conceptual strategies’ (2013), in Emancipation and History: The Return of Social Theory (Leiden: Brill, 2017 and Chicago: Haymarket, 2018). Marxism of course has held a similar standpoint: ‘religion’ is ‘false consciousness’ (whether it would be  totally overcome answered more dubiously by the founders). 72. For opposing views, see especially Eugenio Raúl Zaffaroni, ‘La naturaleza como persona: Pachamama y Gaia’, in Alberto Acosta and Esperanza Martínez (eds), La naturaleza con derechos. De la filosofía a la política (Quito: Abya Yala, 2011); Farid Simón Campaña, ‘Derechos de la naturaleza: innovación trascendental, retórica jurídica o proyecto político’, Iuris Dicto, año 13, vol. 15 (2013). One could argue that Kelsen’s notion of reflex rights offers a solution for the problem. This would apply however only if we accept a subjective natural rights position that lies behind his reasoning. Further discussion of the issue is of course required, including the supposed hybridization with Andean cosmological principles—Sumak Kawsay—undergirding this conception of nature. Whatever the precise definition and whether a ‘dualism’ or merely a ‘differentiation’ and ‘boundary’ between human beings and nature is supposed, especially regarding the status of the fable of the ‘state of nature’, from which we have lifted ourselves through reason (or our own hair), the issue seems to change little in this regard. See John M.  Meyer, Political Nature: Environmentalism and the Interpretation of Western Thought (Cambridge, MA: MIT Press, 2001). What is more, we cannot derive politics directly from a conception of nature—nor, of course, the other way around. For a notion of science as composing as field of ‘sub-politics’, see Ulrich Beck, Riskogesellschaft. Auf dem Weg ein andere Moderne (Frankfurt am Main: Suhrkamp, 1986).

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Bluntly stating the dualism with respect to the political dimension and, rather fancifully, proposing to go beyond it, check Bruno Latour, Politiques de la nature. Comment faire entrer les sciences en démocratie (Paris: La Découverte, 1999). 73. Roy Bhaskar, A Realist Theory of Science (Leeds: Leeds Books, 1975); Idem, The Possibility of Naturalism (New York and London: Routledge, [1979] 1988). For my own take on the discussion, J.  M. Domingues, ‘Global modernity, levels of analysis and conceptual strategies’; Idem, ‘Realism, trend-concepts and the modern state’ (2016), in Emancipation and History. 74. Reinhart Bendix, ‘Tradition and modernity reconsidered’ (1967), in Nation-Building and Citizenship: Studies of our Changing Social Order (New Brunswick, NJ: Transaction, [1977] 2007), pp. 390–92. Empiricism mars the otherwise perceptive approach to trend-concepts of Raymond Boudon, La Place du désordre (Paris: Presses Universitaires de France, [1984] 2004). 75. K.  Marx, Das Kapital. Kritik der politischen Ökonomie, vol. 1 (1867, 1873), in K.  Marx and Friedrich Engels, Werke, vol. 23 (Berlin: Dietz, 1962); vol. 3 (1894), in K. Marx and F. Engels, Werke, vol. 25 (Berlin: Dietz, [1894] 1964). 76. Ludwig Wittgenstein, Philosophische Untersuchungen/Philosophical Investigations (Malden, MA and Oxford: Willey Blackwell [1953] 2009), § 24, p. 15, § 49, p 28, §70, p. 38, § 75, p. 40, § 109, p. 59, §§ 37–38, pp. 96–71. 77. Ernst H.  Kantorowicz, The King’s Two Bodies: A Study in Mediaeval Political Theology (Princeton, NJ: Princeton University Press, 1957). 78. Piet Strydom, Discourse and Knowledge: The Making of Enlightenment Sociology (Liverpool: Liverpool University Press, 2000); J. M. Domingues, Latin America and Contemporary Modernity: A Sociological Interpretation (New York and London: Routledge, 2008), p. 34. 79. Wendy Brown, States of Injury: Power and Freedom in Late Modernity (Princeton, NJ: Princeton University Press, 1995), pp. 4, 12, chaps. 5, 7. This relates to ‘moulding’, to be discussed in Chap. 5. 80. Karl Polanyi, The Great Transformation: The Political and Economic Origins of our Time (Boston, MA: Beacon, [1944] 2001). A different view of disembedding processes will be introduced in Chap. 6. 81. The literature on ‘path dependency’ is extremely complex, excessively so, frequently based on rational action and related ‘costs’. It is geared towards processes more specific than the large historical trends we have been fastening upon here. Their emphasis on early events must, at any rate, be softened. Douglass C. North, Understanding the Process of Economic Change (Princeton, NJ: Princeton University Press, 2005); John Mahoney, ‘Path

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dependency in historical sociology’, Theory and Society, vol. 9 (2000); Paul Pierson, Politics in Time: History, Institutions, and Social Analysis (Princeton, NJ: Princeton University Press, 2004). 82. J. M. Domingues, ‘History, sociology, modernity’ (2016), in Emancipation and History. 83. Idem, Global Modernity, Development, and Contemporary Civilization. 84. Idem, Sociological Theory and Collective Subjectivity (Basingstoke: Macmillan Press and New  York: Saint Martin’s Press [Palgrave], 1995); Social Creativity, Collective Subjectivity and Contemporary Modernity.

PART II

n

CHAPTER 4

The Political System

4.1   The State-Society Divide Beyond Individualism A century ago, Mosca and Pareto introduced a ‘concept’ of ‘elites’, further narrowed down into ‘political elites’ for what is of particular interest here, which they deemed a universal and inevitable feature of human societies.1 What ‘elites’ meant was not very clear, and a proper discussion of the nexus between politics and society as well as between elites and the state was absent from their thoughts, apart from Mosca’s thesis about a ‘circulation of elites’ as a means to renew them. Overall their theories stood as mainly a justificatory and obfuscating effort to legitimize the exclusive exercise especially of political power in an age in which popular participation and universal suffrage were a looming threat to European upper classes and state power-holders (Pareto’s connections to Fascism being well known, while Mosca distraughtly backed off from such an engagement). Too often in the social sciences, this perspective is mobilized, explicitly or implicitly, sometimes perhaps inadvertently, without a consideration of its limitations (or more loosely, a proper conceptual definition missing from the usage of the term ‘elite’). Note that at the same time the critique of the irrational ‘masses’ decisively emerged. Although usually not explicitly stated or diluted, it too has manifested significant staying power.2 That said, Mosca and Pareto had a point: political power must be considered in its specificity, separation from and superimposition upon social life. Before them, Austin had declared, in his even more realist and brutal © The Author(s) 2019 J. M. Domingues, Critical Theory and Political Modernity, https://doi.org/10.1007/978-3-030-02001-9_4

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manner, that ‘superiority’ was simply ‘might’, and that all ‘independent political societies’ were either ‘monarchies’ or ‘aristocracies’/‘oligarchies’ (the latter even narrower, with ‘monarchy’ subsumed in practice, in constitutional government, to the former, and even when they were, somewhat ambiguously in his characterization, called a ‘democracy’). This was true even though ‘sovereigns’—who the rest, incapable of governing, should simply obey—had to be attentive to the opinions of their ‘subjects’.3 A century and a half after Austin and decades later vis-à-vis those Italian ‘elitists’, Easton was more precise and discussed the role of the ‘political system’ as an autonomous set of relations. Power stood out therein, very sanitized, via the benign roles it played for social life in general. It would be partly closed off from society. Partly only because, as an open system, its proper functioning depended on the ‘inputs’ and ‘outputs’ it received from and returned to its encompassing environment. ‘Allocation’ of resources resulted from the decision-making processes that were one of its hallmarks. Otherwise, a crisis would ensue and the reproduction of the political system and even of society more generally would be in jeopardy. Cast very abstractly, this perspective was sensitive to empirical processes connecting the two sides of the state-society divide which have kept us busy in this book yet failed to bring out the harsh realities of power relations discussed since Machiavelli and Hobbes, which, apologetically, Austin, Pareto and Mosca underlined.4 With this sort of problem in mind, these are the two main issues that will concern us here. In what follows we will examine—from a much-­ enlarged perspective—what was defined at the very beginning of Chap. 1 as a ‘unit of contraries’, now also with a direct connection to its dynamic aspects. Its contradictory interplay is crucial for an understanding of the overall development of political modernity. There is much historical variation in the fit, more or less tight, more or less responsive, between the two sides of this dialectical unit, but, as a basic ‘form’, it is reproduced as a general feature of modern civilization, even when the state is superimposed upon social formations in which other civilizational elements are present.5 Collective subjectivities, a concept introduced in this book at the end of the last chapter, will be present at each step of our analysis, in both sides of the political system. We are again back to the tense relation between liberalism and political rights. The problem of representation, intermediation and, more generally, the complex relations between society and state comes to the fore, now at another, directly political level.

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We saw at the beginning of this book that there is indeed, for liberal thought, a divide in modern social life and, beyond that, that it structures modernity overall. This was not, however, considered by liberalism in terms of two sides of the political system, quite the opposite. Political life was restricted to the state, basically through the mediation of representation, the societal side consecrated to private life. At best this entailed the recognition of and support for a ‘civil society’ where politics did not really have a place. This famously entailed Constant’s view of the ‘liberty of the moderns’, in whose bounds each unimpededly minded his own private business, as distinct from the ‘liberty of the ancients’, which rested on active public and political participation, of course mediated by the reception of Renaissance republicanism, which he at best downplayed, stressing the renewed spirit of modern freedom. In his case, this also excluded most of the population— leisure/rationality-lacking workers—from the franchise, which need not be the case in order that the formulation of the two types of liberty is defended and politics sequestered by the formal political system.6 In modernity, there is a plain tendency for the individuals to be often concerned only with their own private ‘interests’. They evacuate the societal side of the political system and this generates problems for the active exercise of citizenship, which would demand some sort of republican-like virtue (through for instance their ‘well-understood interest’, societal associations and the like, as de Tocqueville noted in his grudging analysis of democracy in ‘America’).7 This is what neoliberals would like to see happen, with the political system totally insulated from popular demands, if necessary through openly authoritarian regimes, in which what I have called rational utilitarian expediency would writ large and supreme. For obvious reasons, this is not usually explicitly said. Hayek, the icon of neoliberalism, was in any event candid about the mere utilitarian-instrumental value of democracy to safeguard peace and individual freedom. Under autocratic rule, he thought, they often fared better. What effectively mattered was the level playing field established by the ‘rule of law’ in terms of market competition.8 In addition, the possibility of universal suffrage— liberal democracy—brought to liberals instantly the fear of the ‘tyranny of the majority’, eventually dispelled more recently by the increased plurality of social life and the pluralization of this majority, the purported site of collective will formation.9 Of course, several left-wing traditions, to a large extent Marxist, have stressed, conversely, participation in political life outside the state, in different guises. The societal side of the political system then comes to the

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fore, as a site of popular mobilization, political education, opinion ­formation and struggle. Moreover, they frequently saw through the division between state and society. This sometimes ensued in a redefinition of the concept of ‘civil society’, that is, as a site of public and political rather than private life, with a more ambiguous relation with the state, the Jacobin heritage often combining with Marxist approaches.10 Formulations stemming from these different traditions will stand out in what follows. Finally, it is worth phrasing a point adumbrated in former chapters: politics and administration, that is to say, bureaucracy, are distinct in the modern state, notwithstanding the latter’s, when placed at its apex, unequivocal political aspects. This is something often confused in the social sciences literature, especially when Weber’s influence is strong (for instance, in Habermas’ work). Second, recall that, in principle, the bureaucracy has abstract and neutral features in modernity, being detached from social life at large, although societal demands tend to make it increasingly more complex and shot through by concrete issues as modernity advances. The political system, in turn, is inevitably and permanently pervaded by societal dynamics, although, as we have seen, liberal thought had originally imagined a situation in which representatives qua legislators hovered in a sort of ethereal disinterestedness, afterwards standing for the whole nation or people in its multiple perspectives and ‘interests’, with even executive power, except for the United States’ ‘founding fathers’ or ‘framers of the constitution’, being of lesser interest. Law, not politics, and not even administration in its full sense, seemed to be the essential feature of the modern state, a view inevitably long overcome by different currents. Evidently, it will not be adopted here. As we will see, the state consists in a system of domination penetrated by social forces, through the political system and more broadly, in turn deeply penetrating the society it rules over.

4.2   The Political System Our task now is to analytically reconstruct the political system. Figure 4.1 allows us to straightaway visualize the gist of the operation. In order to advance in our endeavour, we need to cut out, inside the state as well as outside it, a specific social system, a particular collective subjectivity, with its constitutive elements and split-up nature (though, of course, concretely its contours are less sharp). Easton’s own definition of the ‘political system’ as the social instance responsible for ‘allocative ­decisions’ of ‘scarce resources’, already mentioned above, is not totally

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State State political system (ruling/ruled political collectivities)

Bureaucracy ........................................................................................................... Mediators

Societal political system Societal collective subjectivities

Fig. 4.1  State/societal political system

satisfactory. However, it correctly points to the existence of a specific system within the state in which a specific sort of power—‘political power’— is both differentiated and concentrated, relationally within it and in what concerns external elements, as he pioneeringly noted.11 What Easton particularly lacked was a robust view of the other side of the modern political divide and a sharper identification of actual power relations in both of them. We must extend his formulation of the ‘parapolitical’ system. This refers after all to those that are outside the state and influence directly this differentiated political system, doing so from the societal side of the modern divide. We must recognize differentials of power in both sides of the political system as well. Despite a relative insight, Easton’s reasoning tellingly devalues the societal side of politics, including citizenship, which is downplayed. In large measure, this amounts to a continuation of core liberal assumptions, with a reaffirmation of the separation of politics from societal life. His conceptualization must be therefore critically assessed, rather than acritically assumed, giving continuity to the analyses carried out in previous chapters.

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In order to achieve a comprehensive conceptualization of the political system, we must broaden our original analytical device: accompanying the divided nature of modernity, a twofold definition of the formal state political system and of the societal political system must be introduced. Thereby we can recognize the partial relevance of Easton’s conceptualization, critically overcoming its shortcomings. The ‘parapolitical’ systems, in his phrasing, must be fully treated as a component of the political system, occupying the societal side of the modern split. It is socially shaped, partly with direct reference to the state political system, which, in modernity, whatever the importance and weight of the societal political system, concentrates the operations of what has become political power and maintains a more or less vertical relation with it.12 In this restructured scheme, we can take up some others of Easton’s ideas. These include the theses that societal demands are to a large extent directed to the (state) political system and support, diffuse or specifically according to some expectations, is offered and/or organized for its moves. This is the ‘input’ element. Decisions and individual actions and collective moves ensue from that and return to the societal side of the divide. This is the ‘output’ element. ‘Withinputs’ run through the political system, on both its sides.13 Since the frontier between the political system and the other components of the state is not entirely defined, we find what may be considered inputs and outputs or ‘withinputs’, when we consider the state in its entirety. The army, the police, the judiciary and in general the bureaucracy are not part of the political system. In imaginary terms, this is absolute: there is in principle no transfer of sovereignty to these bodies. Inputs and outputs would be the only connection between them and the political system. In practice, however, they operate in the fringes of the formal state political system and take part in some of its workings, implying withinputs. When the system is in trouble, as we shall see, they come to the fore. The same relative lack of definition accrues to the societal side of the political system. Its frontiers with ‘society’ at large are even less sharp. What are inputs and outputs or withinputs must be defined carefully vis-à-vis specific agents and particular dynamics. The apex of the executive—or ‘government’, as it is often called, particularly in Anglo-Saxon countries—and legislative powers are the main arenas of the state political system. We find therein also a formal transfer of sovereignty. They consist of collective subjectivities, the former in particular with a high level of centring. Those who control or are a crucial component of it, even if in opposition at different moments, must be

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called ruling political collectivities (by no means ‘elites’, since the possession of power is what characterizes them, not necessarily, sometimes the opposite, special qualifications, except perhaps how to smartly play small power games). This does not mean that all those who manage to set a foot in legislative or even executive power enjoy the same leverage. They may, on the contrary, forever remain ruled collectivities, even if they can exert some level of influence in the political system and upon the state by and large, and even if they think they have made it to its upper echelons. Disputes, compromises, representation of what is usually called interests, opinions and perspectives, as well as other forms of mediation, which do not depend on some level of authorization and accountability, are processes typical of the functioning of the political system. Elitist theories are prone to concentrate their analysis on the state side of the political system, dismissing the importance of the societal side of the divide for political modernity. Pareto and Mosca stood out in this, despite the former ‘concept’ of ‘circulation of elites’. The same happened with such authors as Weber and Schumpeter, in a more (highly restricted indeed) ‘democratic’ vein and, in the case of the former, a far more sophisticated sociological framework. While Weber thought masses basically follow charismatic leaders and fall under their domination (issues pertaining to charismatic religious communities notwithstanding), Schumpeter overtly derided the masses of electors, with their purported incapacity to grasp anything other than their immediate and local concerns. For him, ‘elites’ compete for the vote and circulate in and out of power, without citizens really understanding what is at stake in elections, due to their extremely limited ‘rationality’.14 The opposite is partly true of pluralist theories, of which Dahl is the main expression. He stressed the representation of multiple ‘interests’ within the modern state and ‘polyarchy’ (the open government of the many), without in fact describing or explaining what happens when they get there, that is, overlooking the problem of political domination.15 Yet, in his first main publication, he was apparently closer to Schumpeter’s argument, although elites as oligarchies were discarded from his framework and he preferred to speak of a more open, fluid and post-plebeian ‘political stratum’ once patrician elites as well as political control by entrepreneurs were displaced. This stratum’s influence was much greater than that of the ordinary, mostly disinterested and not very rational citizen, notwithstanding its plurality and electoral responsiveness, he admitted.16 In a sense, this is true of Habermas’ systems-rooted view, according to which, account taken of more open processes in the lifeworld

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and the public sphere, a self-steered and self-referential political system has its own logic and is separated from the rest, although he, in contradistinction to those authors, highlighted citizens’ full rational capacity.17 At this point a systematic definition of power is necessary in order that we have a firmer grasp of political power in its particularity. Power is here seen as the capacity individuals and collectivities have to do things, a reiterative or transformative capacity, and somehow influence what others do. Usually someone loses, while others gain something, profiting from the former’s loss in the course of social interactions, in the case at hand political interactions. Yet, when exercised collaboratively, power may enhance the reiterative or transformative capacity of collectivities vis-à-vis other collectivities or nature. These are positive-sum games. In contradistinction, fierce clashes may lead to negative-sum games, in which everybody loses. A zero-sum game entails an even outcome.18 Power can be evenly enjoyed socially, entailing egalitarian relations when no individual or collectivity can superimpose its will and goals upon others. Unsurprisingly, power can be, and often is, fundamentally hierarchical, displaying command as its mechanism of coordination. This demands justifications (for instance, arguments about the role of ‘elites’). It is also premised on the use of force and violence, if required. Even when not deployed, force and violence loom large in all interactions related to the political system. Note that the police and the courts, only indirectly and partially related to the political system, are characterized, respectively, by having their deployment as a fundamental characteristic, as part of executive power, or as having immediate access to it, in the case of the judiciary. Once hierarchical power relations are locked in, there emerge stable relations of domination, of which the state-society relation is the most prominent. Citizens are confined to the lower echelons of hierarchy in the formal state political system. The same, more bewilderingly perhaps, also often happens within the societal political system vis-à-vis strong apparatuses which develop therein, in the face of which citizens have very limited power. The liberal imaginary is prone to deny the issue in what concerns the formal state political system; in turn, elitist theories make a virtue out of necessity, trying to justify what is merely a historical, contingent situation. Left-wing currents of thought tend to neglect the problem, although anarchism and autonomism, as we will see in further chapters, are more or even highly concerned with it. This should not be accepted even in the bounds of liberal perspectives and even more so if a critical, emancipatory tack is taken, regardless of its overwhelming prevalence at

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present. Given the institutional stability of power relations in modern ‘societies’ in the political dimension and their intrinsic vertical character, incessantly reiterated, we are faced with a power system of political domination, with state ruling collectivities placed at the top of hierarchical relations and power differentiations traversing it too. Less important and less crystalized instances of the same quandary are found in the societal political system. This must be brought into the open. Evidently, political power does not exhaust the gamut of power relations in modernity. The specific form of social differentiation characteristic of this civilization has given rise to it and to other sorts of systems of power, hierarchical or otherwise. These are in some measure connected to the state, such as power exercised by the bureaucracy, including the police and the military, but also spread out in the societal side of the divide. These sorts of power relations are weaved through processes of conflict and cooperation between agents and, notwithstanding repeated state efforts to confine them to the private sphere, they are often politicized. Ambiguity regarding the status of the political dimension is intrinsic to the constitution of the political system. At this stage of modern civilization, many issues that were previously contained within the private sphere and were supposedly de-politicized have become customary and even institutionalized features of public life and of explicitly political processes. It is not my aim here even to sketch a theory of the diverse collectivities we find in the societal side of modernity and the societal political system in particular. This would lead us far afield, and to some extent astray. Societal collective subjectivities include classes, genders, ethnicities, generations, races and religious groups, families and unions, associations and churches, football teams and cricket fans, terrorist groups and political parties, armies and social movements, universities and think tanks, rock bands and slow food consumers, public opinion and capitalist markets. All these collectivities have been studied empirically and often enjoyed theorizations of the ‘middle-range’. I have in some part done this elsewhere with greater detail, on occasion revising the principal literature about some of them.19 Let me just observe, resuming a reasoning introduced in Chap. 3, that collective subjectivities can be variably centred, counting on a higher or lower level of identity and organization, hence possessing a corresponding level of intentionally (those two elements varying independently). This means that their relations with the societal and the state political systems may be more direct or indirect, without detriment to their causal impact, intentionally or otherwise.

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‘Social movements’, a very elusive concept beyond common sense, has correctly received a lot of attention in the social sciences, especially in political sociology.20 They evince an at least considerable level of centring and intentionality, relating directly to the state political system and purportedly being harbingers or bearers of historical change (with the recurrent and problematic exclusion in more left-wing accounts of religious movements from the assessment of social movements). More generally and diffusely, ‘public opinion’, weaved in complex ways by ordinary citizens and experts, politicians and the media, is an important aspect of modern societal political systems, a rather decentred collective subjectivity.21 Nonetheless, when we theorize or analyse concrete political systems, we must not lose sight of other collective subjectivities, sometimes as important as, or more so than, social movements, from more explicitly political agents to families and markets. At rock bottom, the societal political system sprays into and draws from other societal domains. This includes very general interactions, which can define who is taken to be a legitimate citizen, and even an acceptable member of society, let alone participate in it politically.

4.3   State and Society, Political Systems and Mediation We have seen above that the state intervenes strongly in societal domains with its ‘outputs’, that is, different sorts of ‘policies’ ensuing from decisions taken at its distinct political and bureaucratic levels. This may be classified according to two forms of power: ‘despotic’ (more repressive) and ‘infrastructural’ (present productively in overall societal life, including what Foucault called ‘governmentality’).22 Conversely, societal elements also permeate the state apparatus, with power differentials in the encompassing society directly impacting this side of the social divide, without however necessarily denying its differentiation from societal institutions and dynamic. There are very different approaches to this issue, since Marx and Engels put forward the thesis that the state was merely a ‘committee for managing the common affairs’ of the ruling class, beyond the liberal theses that prevailed at their time, implying a long and not always enlightening discussion.23 Poulantzas and Milliband eventually proposed contrary perspectives on the issue, although both worked within the Marxist tradition and saw the modern state as a capitalist state. For Poulantzas, state officials did not

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usually belong to the ruling classes, a standpoint that clashed with Milliband’s view, since the latter thought business people occupied at least the state’s higher echelons. Poulantzas moreover considered that the state enjoyed great independence from social classes and was essentially a relational space of dispute between them (with finance ministries, the military and the police being decisive for the ruling classes, the popular classes usually confined to the control of social services). This is a position Jessop took to the point of dissolving a direct link between classes and capitalism on one hand, and the state on the other.24 In turn, simultaneously connected to a revival of Weberian sociology, Mann was closer to Poulantzas in that he saw the state as autonomous as well as crisscrossed by societal crystallizations—including class, gender, race, ethnicity, and so on. In other words, these collectivities do not belong directly to the state, yet are capable of placing trusted and responsive agents within its apparatus.25 In sum, overall, Marxism tends to see the movement between the state and the societal side of the divide according to the conditioning of all social spheres by the economic infrastructure, even if some authors lend the former more autonomy. Other currents, for instance Weberians, either suggest a complete autonomy of the state from society or look for complex intertwinements between them. But, as gender theorists such as Brown have shown, state power can include both personal—men—and a myriad of elements.26 This includes how the imaginary and institutions have been defined, life and behaviour codified, and have thus historically (not essentially) configured male power (as well as class, racial, ethnic, etc.). This is the case, to start with, outstandingly of the division between public and private—women originally being excluded from the former, although incorporated therein piecemeal and still in a subordinate way. This interpenetration between state and society implies the functioning of the political system but goes far beyond it. All aspects of the state apparatus are cut across by societal forces and all dimensions of society are somehow, more directly or indirectly, more deeply or superficially, touched by the state political system or its large bureaucracy. It is in that relational field of power that crystallizations occur. States carry with them the historical marks of internal conflicts which are to a variable, usually significative extent, the scars of societal conflicts mediated and internalized in their apparatuses.27 Crystallizations then assume institutional, legal or bureaucratic, features, entailing imaginary elements and practices. They are indexes of the capacity of societal agents to influence general arrangements and specific policies, in disputes internal to ruling collectivities and of these with ruled

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collectivities, which also contain internal differences. While crystallizations and direct sway must be recognized, more diffuse influence, practically and in terms of doctrines, has to be reckoned with too, without losing from sight issues, conflict and cooperation, that pertain to the mere internal dynamic of the state apparatus and its incumbents. It is therefore not hard to see that the idea that the state (or especially the political system) operates as the ‘mind of society’ makes no sense, contrary to what we often see in modern formulations, from Hobbes to Parsons.28 It is true that there are powerful, ‘authoritative’, decision-­ making centres in the state, particularly at the top of the executive, financial ministries or the military (which may have internal cracks, though). They are capable of turning their decisions into binding commands, either thanks to the capacity they have to convince people, including the deployment of moral and utilitarian arguments, or due to their access to instruments that influence behaviour which would not otherwise be forthcoming; or still because they can apply force to recalcitrant and rebellious agents. That said, it would be incorrect to see in the state a sort of collective subjectivity that simply mirrors the individual agent that is so typical of early modern thought—centred, organized, transparent. The state overall is a much-decentred collective subjectivity, with several and often contradictory agency centres. When we analyse it in concrete settings, we need to remember this caveat, otherwise a false view is bound to turn up in our investigation, with possibly tragic political consequences. Beyond these crystallizations and the state inner field of power, we could speak, with Easton, of ‘gatekeepers’ of the political system, namely, individuals and collectivities that filter the demands that are allowed into it.29 If, to some extent, this is correct, not by chance does this idea miss one crucial issue, namely, the active interchange between the two sides of the state-society divide. It is better therefore to speak of mediators, that is, agents, individual and collective, that are partly state, partly society-bound. They precisely and literally intermediate between the two sides of the divide, beyond an ‘instrumental’ perspective linked to the furthering of class ‘interests’, although these are often contemplated by such processes.30 How this happens or fails to, in the short and the long run, will be crucial for the mechanisms we will examine in the next sub-section. That said, we must be aware that much of the mediation between state and society is done not through the political system formally considered, but also rather directly by the bureaucracy, as formerly argued. Mediators are of course central for the notion of ‘representation’, already discussed in Chap. 2 and

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above, which will be resumed below. They also include, in a more formal direction, such other elements as the judiciary and a myriad of societal agents, for instance non-governmental organizations (NGOs), which, practically or symbolically, operate mediation. No role of representation strictly understood is bestowed upon them. They appear as mediators which, despite recent views to the contrary, ought not to be taken as ‘representatives’ in the strong sense of the word, in a situation in which political representation has been losing its effectiveness and even any sort of accountability vis-à-vis the represented. Before proceeding further, one admonition is necessary. The idea of mediation does not at all imply that there is a faithful translation of the societal into the state political or juridical systems. Mediators are capable—and in a sense unavoidably do so—of creating a reality of their own, with lesser or greater autonomy. The opposite is true too, namely, the translation of the state into the societal political system is not direct or faithful. In other words, ‘inputs’ and ‘outputs’ undergo changes when they pass from one side of the divide over onto the other. This depends on the characteristics and strengths of the collectivities at stake, in the societal and the state political systems, as well as in what refers to mediators. Refraction of those societal and state realities is almost inevitable. Moreover, mediators mould, in large measure, the agents they mediate, usually at least as much as are shaped by them. This is a dynamic and plastic interactive process between individuals and collective subjectivities. Finally, if cleavages in the state political system are usually somehow connected to agents in the societal political system, these links may be weak or distorted, fade away or diminish, intentionally or unintentionally, or according to some mixture of both. When this happens, the cleavages and conflicts within the former acquire a dynamic much more exclusive of their own and mediation may play a rather reduced role. This may even imply far greater cooperation between distinct ruling collectivities rather than conflict and rather than their connection with societal collectivities as mediators. It may occur even if some of those state-based agents occupy, within the state political system, a subordinate position. To be sure, ‘representatives’ do not give the game away so easily. They all like, and need, to appear as an expression of the societal political system or of society by and large, no matter how this is practically built and imaginarily framed. Surely this line of reasoning runs counter to what Marxists almost ­universally imply—except when they denounce co-optation or betrayal of usually social-democratic forces. It also tends to clash at least implicitly

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with most pluralist approaches as well as with behaviourist or Habermasian systems theories. The latter, by the way, does not so much actually contradict elitist authors. These, as noted above, in their realism are more implicitly attentive to the closure of the formal state political system, which they habitually recommend. Even so they frequently point to or pretend that there are representative links between those elites and the common citizen. The separation between the few and the many in modern political systems shows its fishy face thereby. We will have occasion to translate these general concepts into more specific political dynamics in Chap. 8, when regimes become our focus of analysis. In any case, the inner logics and autonomy particularly of the state political system must not ever be forgotten, either in general conceptual analysis or when we lean over specific political processes. Political parties have excelled in the mediation between the societal and the state political systems, especially during the twentieth century. They used to play, and to some extent still do, a key role in formal representation and even other processes of mediation, as organizations with a very high level of centring. Parties have promoted, in many instances, emancipatory projects and meant an ampliation of participation in the political process, opening up the political system. Yet, they have been largely oligarchical and hierarchical, whether structured around ‘notables’ or featuring more ordinary people, as ‘mass’ parties. Internal democracy has characterized some of them to some degree, by no means always or intensely, even when they are of popular extraction. They have always included elements of co-optation of candidates by their apparatuses. These organizations had their heyday in the mid-twentieth century, now their monopoly of formal representation is rather artificial and tends to exclude or limit actual popular participation. If they are based on social cleavages, which imply more or less societal power and which they may aim to overcome or mitigate, parties stand for a form of inequality in the political system, whether they intend it or not, with practices sometimes closer to tyranny than to representation—that is, the subordination of people who are supposed to passively accept party directives. Often, the power games, conflictive and cooperative, within the political system are what interest them, with the benefits, of power and otherwise, that flow from their positioning therein. Some parties, usually very hierarchical, have struggled for religious definitions and absolute uniformity of state and society, while others still have entertained revolutionary perspectives.31

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Parties may have reached a stage of exhaustion, though. Other political forms tend to dislocate them, for instance, media-steered politics, in what has been called ‘audience democracy’. Direct participation and mobilization have been on the rise too, as we will see later. But repeated efforts at the construction of ‘movement parties’ are a regular expression of this impulse, more open to participation and connected to, or directly stemming from, social movements (usually inclined to the left, sometimes with a right-wing agenda), often eventually becoming oligarchized themselves. This may continue, their eventually permanent success within liberal democracy being unlikely.32 Even when the system is designed with the goal of an optimal fit between them in mind, societal cleavages are hardly trustworthily reproduced by parliamentary representation. Electoral laws always favour stronger parties. This obtains even in the case of proportional representation, irrespective of how much moderates this tendency, which is strongly accentuated in majority electoral systems. If parties may ‘represent’ the electorate, they shape it as well, since the latter’s political views depend crucially on the former’s activities for their form and content. This can be fairly extensive.33 Actually, cleavages are shaped in a very complex societal-­state construction that affects both sides of the political system, a multidimensional process in which identities, hermeneutically charged, prominently rank. One might say that representation has historically assumed other forms. These depend not on elections but rather on the direct contact of collectivities, such as workers’ unions and business organizations, with the state apparatus. This has been known as ‘neocorporatism’ (societal or state-­ based) and thrived, especially in twentieth-century northern Europe, including basically the social classes. Some students of the issue have been, however, cautious in stating this directly, speaking instead of ‘intermediation’. This is correct indeed, in that political representation has its specificities, as argued above; it may also involve an idealization of electoral representation, though, which does not have in real life the noble qualities of precision and faithfulness often ascribed to it. Neoliberal governance has more recently in any case refused the social agreements underlying this sort of arrangement.34 Whatever else, as argued above, representation cannot be only symbolic: it must include some sort of explicit authorization. At least strongly organized and monopolistic associations typical of (neo) corporatism were able to provide it to some, always partial, extent. More complicated are business ‘lobbies’, which imply a re/neopatrimonialization

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of politics in the process of intermediation, rather perverse and to a large extent carried out on the sly.35 More ambiguous is the position of media of communication, which are usually, especially if they are mass media, structured in a sharply vertical manner. They have enormous hierarchically structured social power, albeit informally, vis-à-vis the population, as key players in the societal political system, reaching out to the formal political state system, in which they have strong and usually close connections. If they are truly pluralized, they can operate as true mediators and organizers of the political debate and enhance freedom, to the point of almost denying, in their individualized operation, the idea of mediation. Communication has been carried out, as a process of mediation between different agents in both sides of the political system, in what has been often defined as a ‘public sphere’ (where issues that are not immediately political circulate too). This was never, and is even less so today, rationally horizontal, though reason has always been claimed as one of its key components. Nor has it been open to horizontal participation in its mainstream institutions, which as such outline the ‘public’ as a specific sphere. It has, conversely, become much more dispersed and pluralized than it used to be, at the same time that mass media undergo oligopolization.36 A more dynamic relationship seems to result from this, one in which the two sides of the political system—state-based and societal—are more likely to be at odds, the latter, conversely, probably deprived of instruments and channels to direct the former. The state political system is organized and imaginarily framed in a way such that it is supposed to somehow express the demands and desires of societal forces. This is more or less true, but support is forthcoming only insofar as people believe this obtains, at least partially. Cleavages within the societal political system must be, or seen to be, reflected in the state political system. Beyond, once again, the immediate phenomenological appearance of its workings, as well as intentional attempts of obfuscation by the agents that steer it, how representative the political system really is must remain a question to be further analysed later. Mediation includes also the law-based processes and procedures in which the judiciary is the key element. This may refer to processes that include legal issues between individuals and the state, including the claims we have examined in the previous chapters, as well as, once sociability attains extreme individualist trappings, issues that would be in principle solved directly by citizens between them, with a new layer superimposed on the relation between state and society. The judiciary may step forward,

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as we frequently see in contemporary societies, thus assuming the mantel of ‘guardians of promises’, even if remaining in its normal institutional bounds. So-called judicialization is the result.37

4.4   Abstraction and Concreteness in Political Dynamics 4.4.1  Liberalism and Stability In every ‘society’, there is a permanent tendency towards disaggregation. Individuals and collectivities sustain particular desires and intentions, unintended consequences of enacted individual action and of collective moves come about, new paths are imaginatively, whether intentionally or not, pursued, conflicts threaten to tear apart the social fabric, and new cooperative ventures open up new possibilities. Yet structuring patterns are reproduced. This reiteration of patterns refers, in what concerns political modernity, primarily to the reproduction of the modern state as a whole and of the societal side of the political system. Other aspects would have to be considered in a total account of change and stability in modernity. Our analytical strategy in this book is concerned with the autonomous juridical-political dimension of modern civilization. Its patterns, like any other, do not simply linger on, spontaneously. Specific mechanisms have to be identified which answer for their reproduction. Two classical answers to this interrogation have been given. The first was proposed by Marx and Engels. As indicated above, they pointed directly to class interests that support liberal regimes and their reproduction. This happened because they engendered the dominant ideas in society as well as because the modern state was seen, in a somewhat unspecific fashion, as the machine used by the bourgeoisie to rule over workers. Shifts and some complexification notwithstanding, they kept to this view throughout their lives, and many Marxists did the same afterwards. Weber, in turn, spoke of the almost systemic development of rational-legal domination, with its abstract rationalized character, although he pleaded for some salt of charismatic domination in order to return meaning to modernity.38 These explanations are, however, insufficient. We have seen that Poulantzas spoke of the state as a field of disputes, with Mann pointing to crystallizations, which I defined in terms of personnel, institutions and

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imaginary elements. We can finally introduce Gramsci and his concept of hegemony. This has at its core the idea of ‘consensus’ (beyond sheer ‘consent’ to hierarchical rule, hence including active allegiance), seconded by ‘coercion’, or a blend of both, according to his theory of the ‘enlarged state’, which would arguably pierce through ‘civil society’, at least in complex social formations. This would stabilize them. It goes without saying that these are processes of contingent realization.39 With Gramsci, a topic that had been hardly dealt with in political thought—persuasion and the constitution of subjectivity rather than simply justification of order and command—found centre stage. It is here that collective subjectivities intervene, on both sides of the modern state-society divide. We have already discussed, in Chap. 3, the genesis and the generative mechanisms that preside over the surge of the ‘rights discourse’ and its positivization in state institutions, to start with via the definition of citizenship. We will further explore this issue now. The relation between the two sides of the political system will be discussed, but so will the dynamic internal to them be analysed. The bourgeoisie has usually been seen as the main agent of the genesis and reproduction of liberalism. This has happened regarding ideology, the family, economically and political institutions. In Marxism, liberalism has been seen as the natural form through which bourgeois domination is to be guaranteed. The abstract individual of liberalism and its separation of the economic from the political dimension would closely correspond to the necessity of establishing and reproducing a labour force over which only non-coercive control was exercised, the coercion unleashed by the market regarded as based on the liberty of the individual to barter.40 This freedom of the individual in the market would be mirrored by the individual freedoms of the political citizen in what might be called a ‘state-­ optimum’ (which cannot be totally dissolved by other state forms, including fascist dictatorships).41 That is, with the individual free in one sphere, this freedom premised on inalienable rights, it is hard to justify why this does not apply to other spheres, particularly to the political domain. There is a lot to commend in this view, yet its sin is the usual one in Marxism: to reduce all the explanations to the so-called economic basis or infrastructure; or at best to interests and the class struggle rooted therein. Moreover, the bourgeoisie was not the only collectivity that had interest in, or was committed to, the liberal view of the state. Politicians, bureaucrats and especially jurists have sustained it. This addition of agents also underscores the autonomy of the state,42 something that, to be sure,

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subtler Marxists recognize in the agents that precisely enact these professional and political roles. By and large, we can refer to a broad individualist and rights-based perspective that grew piecemeal, in the long run, in the West. Eventually, it set in across most institutional domains and at the core of the imaginary, cognitively, normatively and expressively, with different weights in each of them, varying from country to country, from region to region, in distinct periods. If we take a wider view, this is exactly what has to be elaborated. Let us leave for now the genesis of the modern state and its political system, its generative mechanisms, concentrating on those reiterative ones: it has been a comprehensive alliance, implicit or explicit, implying awareness or mere obscure affirmation of its own positions and projects, that has led to the reproduction of the liberal state. This is not to say that all the characteristics associated with the liberal state are found in all the social formations in which it is extant. But individualism, abstraction (whatever incursions by concrete societal features), a middling (or at least a modicum) degree of rights, some form of division of power (at least formally) and the relative insulation of the economy from politics materialize in all of them, with elections always appearing as the optimal method, more or less faithfully representative, of selecting executive and legislative power. These tacit or open alliances, as well as frame of mind, with several and even disparate doctrines linked to it, weave exactly the reiterative mechanism underpinning what was above defined as ‘hegemony’—the mix of consensus and coercion that may be said to offer the foundations of the stability of traditional modern political systems and of the modern state more generally. Not all ‘transitions’ to modernity have been carried out according to liberal models (even those in which it played a prominent part deviating from them to a variable extent); other collective subjectivities have on occasion played a decisive role in such ‘transitions’. In any case, more or less restricted liberal systems have been the general outcome of these processes, which then take on a life of their own.43 If stability and reproduction are a common, at least partial, result of social processes, conflicts between agents are also the rule. The forces that push and shove for, against or within the bounds of the liberal state are not only classes, regardless of their huge importance. These forces are multiple, exactly those, predominantly, that I have outlined above, in both the state and the societal political systems, as well as beyond it, including all circles of social life. It is worth stressing that within the political system, in spite of the dissemination of concreteness, in a liberal state the abstract aspects

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must predominate, even though this cannot be absolute. When this happens, mediators remain mediators. That is to say, they play a specific role, guaranteeing a steady flow of inputs and outputs between the state and the societal side of the modern split. Representation is often the name of the game, with mediators translating into state law and policies the demands and desires, interests and values, of societal collectivities, which are then processed through withinputs (which do not exclude, in this process, new inputs and outputs). Bureaucracy stands out in this. But things can go awry and even take a very different turn, as we will see below. We need now to consider the autonomy of the political dimension in a further sense. The reproduction of political systems depends on the relations of political agents within each side of the societal divide, that is, within each side of the political system in its relative separation from each other, especially in what refers to the state political system. If political agents keep to usual patterns of behaviour and basic agreements, collectively shielding themselves from society’s challenges, the system may be reproduced even in the face of disturbances in the relations between the two sides of the political system. If, awkwardly, their conflict is exacerbated and they jump at each other’s throats, the formal political system may explode—or implode—, although a push from the outside usually consists in a necessary additional occurrence for it to tumble. On the other hand, it is true that at least some forces must have access to the state political system more consistently, if it is to achieve long-term reproduction. It is unlikely that it can survive if it does not pay heed to it at all, and even to general social feeling and opinion, maybe in a highly selective way. More generally, people are usually socialized in liberal worldviews, even if only in terms of more practical reflexivity, and end up imagining, especially if the institutional reproduction of liberal systems is achieved, that this is a necessary and even positive form of shaping the world.44 The form of organizing experience is then directed by the elements of liberal thought and practice which we have examined in Part I of this book, which is, furthermore, strongly reified in terms of law and state structures. As such, this produces routine standpoints that in themselves play a part in stabilizing the reiterative mechanisms of the modern state and of the political system, as, categorially, an element that stems from that stabilization and feeds back into it once it becomes operative itself. In this regard, the undeveloped condition of his ideas directly in what concerns the political system notwithstanding, Parsons was correct: a stabilization of expectations, achieved through the establishment of shared ‘norms’, may keep at

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bay the lurking menace of contingency. It can dampen the evolution of disparate and fluctuating answers of the different agents involved, with also imaginary instability, which cuts across all social interactions, political ones included. After all, what he conceptualized as the ‘double contingency’ of interaction, connected to that threatening unpredictability of answers and instability of meaning, is a profound source of change of the imaginary, therefore a problem to the untroubled reproduction of the political system. If they are subdued, politics may run relatively smoothly, force, however, looming large in all processes, an aspect which  Parsons had difficulty to recognize or chose to belittle.45 4.4.2  Crisis and Breakdown Problems really start when conflict overflows the limits in which liberal institutions are supposed to contain it. There is, as a consequence, a tendency towards the de-institutionalization of social, particularly political, relations. Situations become more fluid and agents have trouble identifying the reaction of others. Contingency takes over and leads to further, more open, conflicts and sheer confusion. Routines fall apart and improvisation takes over, with unexpected and unusual answers from all agents exponentially fostering contingency and engendering an increasingly complicated situation, with issues, agents and energy from other areas of social life pouring into the political dynamic.46 This happens evidently with variable intensity and duration, depending on the depth of the crisis that triggered the original crunch. Social creativity escalates at least in some, again variable, measure, concerning practices, the imaginary and institutions, which does not mean that collective solutions are found. The world may be turned upside down. Liberal institutions, in short, have trouble to keep functioning as they do in ‘normal’ conditions. This may be a passing problem, which may be surpassed by small or incremental changes, new strategies and concessions; in other cases, a more far-reaching breakdown sets in, which sometimes looks sudden, its symptoms usually showing up for a while before the crunch. The crisis of hegemony, with consensus abating, may unfold and deepen, with no agents seemingly having a solution at hand or solutions being repressed by dominant forces. Agents then start to look for their own interests alone. The old dies hard and the new takes time to rise, morbidity ensuing from this sort of stalemate or just a lack of actual alternatives.47 In the formal political system, in particular, ‘rules of the game’ stop working and ‘elites’—or oligarchies, as

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we will discuss later—stop recognizing legitimate interlocutors in adversaries; or they are so desperate to defeat opponents that they push too hard and may blow things apart, themselves included. This means that the abstract institutions of the liberal state—or liberal at least to some extent—falter in their expected reiteration. Even worse is the situation if shadow institutions, for instance linked to corruption, are laid bare in the course of crisis. In other words, the agents that reiterated those features can no longer do so, either because they lack the capacity for that or simply because they lose direction in the face of the snowballing mess. The upshot is that specific collectivities or individuals come to the fore. They may pop up from outside the state, as putative political ‘outsiders’, or from within it. With their concrete characteristics, they challenge the supposed neutrality of abstract institutions and agents; or they may even rise as pretending to represent precisely those abstract features, which they vow to sustain, generating an ambiguous situation. At this point, the role of mediators changes or foreshadows unexpected processes. That is, when the relations between abstract and concrete are also altered and the latter raises above the former (without erasing it, by any means). Mediators emerge as autonomous forces, instead of trying to mediate state-society relations, though they may partly still do so, in a different key, by and large; and agents recognized as authorized representatives are unable to fulfil their role. State officials, which tend to see, or pretend to, in the state a particularly honourable agent, often endeavour to steer a political course, with societal forces pushing them in their preferred direction and solution to the crisis, some situations implying such a conundrum that disintegration may set in, with unpredictable outcomes.48 Marx was the first to note such processes is his discussion of the aftermath of the 1848 revolution in France. As a crisis between parliamentary representatives and represented citizens (especially the bourgeoisie) unfolded, ‘praetorian’ forces—an expression that summons the role of the military in ancient Rome—sprung forth. Galvanizing the masses and seizing the situation, Louis Bonaparte won the day, was elected and eventually turned himself into Emperor.49 Marx then gave unintentional birth to the long-lived though problematic concept of ‘Bonapartism’. This, surely of far-reaching relevance, suffered from a problem which in Marx and Marxism could not ever be really overcome: the necessary identification of social classes in the societal side of the modern divide whereupon, at least in the last instance, such sort of dominant political figure somehow rested and whom it represented. In the case at hand, the issue was solved with the

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supposed relation between Bonaparte, the nephew, and the mass of dispersed French peasants. In other words, Marx’s analysis could not accept any proper level of autonomy of political forces and developments. I have been stressing, conversely, the independent evolution of such political situations and the emergence of political phenomena that are neither directly related to classes nor characterize, as in some readings of Bonapartism, a compromise between them. ‘Cesarism’ (‘progressive’ and ‘regressive’, depending on their historical and social orientations) was a concept put forward by Gramsci which, albeit obviously related to Marx’s Bonapartism, went further than it. He seemed to lend much more autonomy to this sort of political agent, purportedly an outstanding individual, detaching it much more radically from social classes, without detriment to the role these play in the background of the crisis of hegemony. We must complete his work and establish its total autonomy in what regards the inner workings of the political system, in both its state and societal sides, irrespective of the inevitable connections and links mediators entertain with state and societal agents.50 More liberal perspectives—a few of them openly reactionary—suggested like solutions for like phenomena. Faced with the ascension of Peronism in Argentina, Germani pointed to the role of ‘elites’ capable of manipulating ‘available masses’ that were not adequately incorporated by restricted liberal political systems in a fast-paced transition to modernity. For him the upper-classes were to blame.51 Huntington took the issue further and, surely drawing upon Marx as well as resuming and generalizing Germani’s argument, stated that ‘praetorian’ forces emerge in moments of state crisis, when demands and des-functions related to a very quick transition to modernity lead to the advent of specific groups. Their political mobilization would then be combined with the slow development of political institutions. ‘Political decay’ resulted, at least momentarily. In this confused situation, some collectivities emerge and may take over the reorganization of society. The military stood out among these groups, to which Huntington added students and priests, trying to disguise or soften his actually open support for military coups and dictatorships in Latin America. The developed world had to be patient with them, he reckoned.52 In any case, the political dimension of these processes was not submerged by economic considerations in any of these authors, although especially the latter placed them within the typical framework of 1950s–1960s US-based modernization theory, somewhat softened to deal with processes of political decay and crisis.

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Crises that have their epicentre directly in the formal political system must be borne in mind too. Of course, they may be stimulated by, spill over and enter a feedback process with the societal political system. Their specific traits must not be collapsed into societal struggles and their translation via representation, or its crisis, because of that. Usually, it is difficult to distinguish one situation from the other, since symptoms of crisis are very similar in these different cases.53 We are immersed in liberal conceptions, which pluralism, as seen with Dahl, strongly expresses, as well as Marxist views, from the founders to this day, which stress the pre-­eminence of the societal side of the equation. We must, however, resist this almost by now common-sensical outlook. General theoretical presuppositions and concrete analysis must always allow for that politically more self-­ centred possibility. Conflict and disarray within in particular the state political system may unchain far-reaching confusion. The societal political system may play a secondary role in its unfolding, usually somehow taking part, initially or eventually, in its production and resolution. Again, in all the variants mentioned above, collective subjectivities perform political parts. According to different theoretical strands, they are ruling, intermediary and subaltern classes, distinct sorts of ‘elites’, oligarchies, newspapers, parties, the judiciary, the military, students, priests, the poor, plebeians, society’s leftovers (the so-called lumpen-proletariat), alongside, in particular, single powerful individuals. Their cooperation and conflict engender the political situation in which stability and ­instability reinforce or beset the political system, producing crisis and the way out of it. Some are directly state-based, others societal agents, others still mediators, whose position may change once hot steam fumes through the institutional cracks of liberal democracy, even though liberalism may remain at the core of the juridical-political imaginary and rock-bottom institutions. This eruption of mediators into the state political system as key players entails, usually, though not out of necessity, the affirmation of concreteness, while the reinforcement of identities of agents on both sides of the divide may have the same effect. The liberal political system and, more broadly, the liberal state, are, as we have seen throughout this book, built with an abstract imaginary, abstract institutions and even a sort of abstracted personnel. Politics inevitably entertains an ambiguous relation with this enchanted void insofar as abstract politics is almost an oxymoron. If some agents, connected to Cesarism, may openly affirm their links to concreteness, in other instances abstractness still has an apparent upper

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hand. Agents, without exception, cannot however avoid showing their concrete countenance, coming from the role of mediator to perform a more vital part or searching for particular interests. In the first case, it is as though what Laclau, in his concept of ‘populism’, called ‘popular demands’, which are incarnated in a single individual or some sort of agent, institutionally based or a movement.54 This is exactly what Marx described in his account of Bonaparte and the manner in which the presidency incarnated the nation, contrary to the ‘metaphysical’ generalizing and abstracting plurality of parliament. This was a phenomenon radically magnified once the system collapsed and the republic gave way to an Empire. This was also what Weber pointed out in his demand for ‘charismatic’ leadership—actually domination—in modernity. These figures condense, often by adding and compacting concrete societal features, different concrete imaginary aspects of society and/or desires, mechanisms already discussed in the second chapter of this book.55 In the second case, the abstract functions of the mediator come to the fore, whereby the military and particularly the judiciary may appear as justifying their prominent role, with the nation somewhat more concretely possibly featuring therein too. But this is at best a partial truth: in societies in which the political system, above all its formal state side, has lost (sometimes never having achieved it completely) the capacity to stabilize relations of hegemony mediating with the societal side or steady its internal more or less consensual relations, direct interventions of mediators or similar forces tend to reappear. As such, they can hardly refrain from a sort of concrete incarnation in judges and prosecutors, who surge somehow as self-appointed interpreters of the desires of the population, or sectors thereof, whether they intend it or not.56 This is true especially if, and insofar as, the military, who have direct access to physical force, for whatever reason refrain from taking over in situations of acute crisis. This has been a recurrent behaviour throughout the history of modernity, in all regions, in different moments. The West has recently seen less of it exactly due to deeper hegemonic liberal sedimentations and a stabilization of relations between formal political forces. Charismatic leadership and the same sort of embodiment of the nation Weber and Marx identified can accrue to this sort of mixed solution of a hegemony crisis and/or the implosion of the political system. In the imaginary, its expression may, however, cling to more abstract elements and expressions, without so much as an addition of concrete societal elements and desires (which can be displaced from their original, concrete sites of

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affect concentration towards these more abstract figures, which may be, in a rights-based society, more acceptable than particular interests, demands and frustrations). We see in this a curious mode in which the dialectic of that modern ‘unit of contraries’ is played out, with the liberal imaginary implying its own simultaneous affirmation and negation. In societies in which strictly modern elements prevail, a case only theoretically meaningful, everything must revolve around abstract and concrete elements related to developments that emerged or were strongly modified in the last three centuries or still less. Nevertheless, once we admit that even in Europe and the US as well as even more so in countries and regions outside the West, concrete elements have an extraordinarily powerful foothold, political dynamic must take this in consideration. Royalties and the like are examples of what we may find in this sort of situation: they incarnate the particularistic features of the nation, according to different sorts of, variably modernized, traditions—some long lived and surely partially ‘invented’ too.57 Liberalism is, moreover, weaker in most situations outside Europe and the US. It has not become so deeply rooted in the societal side of the modern divide outside the West or maybe Latin America, whereas the US, with less of traditional features stamping its political and state systems, fully embraced it. The basic mechanisms that bring about instability are exactly those that produce the fluidity and permanent restlessness of social life: conflict and cooperation between agents; interestingly, they may work to produce the opposite result. I have heuristically inverted the analytical presentation of stability and change in order to make clearer how the former works. In fact, the latter is always an undercurrent that may surface at any moment, even when the mechanisms that, within the limits of liberalism, guarantee hegemony and accord, at least among those on top, roll on smoothly. This leads to the decay and even destruction of hegemony and of self-centred stabilization that is suffused with liberalism. The upshot, evidently, may not be explosive revolution—an extremely rare occurrence, probably less likely in the future—, with the production of much smaller and controllable alterations, since crises are of variable magnitude. Yet, in the emergence of specific political agents—whether individual or collective, which stress concreteness or cherish abstraction—, we find a more specific mechanism. It is propelled by the changed role mediators and other agents perform in such situations of imaginary and institutional fluidity, when frontiers between state and society become more blurred, ideas flare up and practices may be suddenly transformed. That is to say, agents strive and fight

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for interests and desires, defend ideas and manufacture projects, of greater or lesser reach in opposition, in this case to the ways in which modern political institutions are run (which may include challenges to those that are operative in other social dimensions). In some part, crises and change derive from these clashes. These may follow from strong intentional agency, but are, in considerable measure, the outcome of more disperse and less clear-cut moves of collective subjectivities, whose resultant was not intended. This ensues whether agents are aware of it or not. How are specific crises situations overcome and new moments or periods of stability achieved? When new collectivities are capable of finding, within modernity, a new hegemonic solution, with a new ‘historical block’, as Gramsci would put it, resulting from this arrangement. Consensus and coercion blend nicely again for the ruling collectivities. It may be, instead, that, short of true hegemony, the political system seals itself off from or narrows the communicative alleys with the societal political system, with a high level of internal consensus and a threat of harsh violence towards the outside. Different possibilities of solution exist, from rapid and straightforward transformation to piecemeal alterations across the political and social fabric. ‘Transformism’ characterized the latter, while the former could see radical and rapid transformations as well as a ‘molecular’ process in which change would more gradually proceed. ‘Catharsis’, that is, rapid popular organization at some stages and the passage from corporatist to general ethical-political perspectives, can take place. Gramsci problematically mixed, however, what he defined as a ‘passive revolution’, ‘molecular processes’ and ‘revolution-restauration’.58 Combinations and specific variations of these patterns must of course be considered when specific situations are analysed. When a deeper rupture or at least the opportunity for a substantial change comes about we face a moment of ‘exception’. Rules are altered by those who have political strength and can also count, of course, on physical force.59 Or they may decide not to change and resume patterns of cordial relationships between agents within the formal political system, excluding and perhaps repressing agents on the other side of the political divide. This is likely, then again, to result in further instability. In Lenin’s piercing formulation, if a crisis situation was taken far enough, a revolutionary crisis might ensue since the upper classes could no longer rule as they used to, becoming divided among themselves about what to do, while workers no longer accepted oppression as they previously did. He added a revolutionary party for the proper outcome of the revolution.60 Yet, it is at least doubtful whether this remains true, beyond

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the sedimentation of hegemony as a mechanism of reiteration across the world, which was Gramsci’s point. The disproportionate power and international connections states display today, to be studied in Chap. 7, may turn violent revolt simply into an impracticality. Nobody can cage social change; when someone tries to capture and neutralize it, results are often even more disturbing and usually unforgiving for those who did so. If political solutions to crisis do not break away from modernity, we are still dealing with reiterative mechanisms, however rocky the situation, which produce some level of change without altering main patterns. Yet more radical alternatives must be acknowledged, either because we come face to face with so-called regimes of exception, which have more complicated relations, although by no means inimical, to liberal principles, or because we are bidding farewell to modernity, perhaps as a long-term transformation. In the first case, reiterative mechanisms remain dominant, with imaginary and institutions on the other hand altered almost beyond recognition by bolder collective modernizing moves. In the second, transformative mechanisms prevail and collective subjectivities take a leap into the future, with even radical post-modernizing moves (which can emerge piecemeal). In any case, many so-called regimes of exception, especially Nazism and the array of historical fascisms, were not seen by their agents as just transitory at all, contrary to other types of dictatorship that did not have a proper design and institutional project, usually having the military as their literally ‘praetorian’ agents and making way, at some point, to a return to some sort of liberal regime. Particularly those permanent regimes certainly alter the manner the two sides of the political system are organized. We will have occasion to discuss such issues in Chap. 8 in greater detail, when we specifically focus on political regimes. A few characteristics, related to the issues at stake at this stage, need be listed here. In the first place, the political space becomes more restricted and mediation assumes much more rigidity, usually operating from the top down and directly with business circles, fascist own organizations and at times corporatism framing societal collectivities. Historically, parties became highly militarized, although, after taking power, their mobilizing character was toned down, with control of the population assuming centre stage. In addition, the dialectic between the abstract and the concrete took a strong turn towards the predominance of the latter, with even bureaucratic routines partly displaced by the personalization and informality of power relations and, above all, the great ‘leader’ becoming the incarnation of, or

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cultivating an immediate and direct identification with, the people and the nation. Such regimes fell through war, as was part of their apparently extremely destructive developmental dynamic. They have not re-­surfaced.61 Within modernity, they organized their political systems, especially Nazism, at its outer circles. They were defeated and, today, it is liberalism that calls the shots in the structuration of political modernity, also in what regards its political system. It is possible that this will change some day, but fascism does not at the moment seem to be in store. To be sure, global hybridizations, real socialism leftovers and specific modernizing moves and paths complicate the equation. Yet, the dynamic of the political system, such as depicted above, rarely disappears, except under extremely repressive regimes, in which the political space is practically non-existent.

Notes 1. Gaetano Mosca, Elementi di scienza politica (Turin: Fratelli Bocca, [1895] 1923); Vilfredo Pareto, Trattato di sociologia generale, vols 1–2 (Florence: G. Barbéra, [1916] 1923). 2. Gustave Le Bon, Psychologie des foules (Paris: Presses Universitaires de France, [1895] 1963). 3. John Austin, The Province of Jurisprudence Determined (Cambridge: Cambridge University Press, [1832, 1861, 1885] 1995), Lecture VI, pp. 184–85ff. His influence on Weber, as well as on Pareto and Mosca, is unmistakable, though usually unnoticed. 4. David Easton, The Political System: An Inquiry into the State of Political Science (New York: Alfred A. Knopf, [1953] 1971), pp. 129ff; Idem, A Framework for Political Analysis (Englewood Cliffs, NJ: Prentice-Hall, 1965), pp.  50, 108–32. The  state political system is narrower than the state overall, with which it must not be conflated. 5. René Zavaleta Mercado, ‘Problemas de determinación dependiente y la forma primordial’ (1983), in El Estado en América Latina (Cochabamba and La Paz: Los Amigos del Libro, 1990); Luis Tapia, ‘La forma primordial’, in Pensando la democracia geopolíticamente (La Paz: Comuna, Muela del Diablo and CLACSO, 2009). 6. Benjamin Constant, Principes de politiques (1815), chap. 6, and ‘La liberté des anciens comparée à celle des modernes’ (1819), in Écrits politiques (Paris: Le Livre de Poche, 1980); Isaiah Berlin, ‘Two concepts of liberty’, in Four Essays on Liberty (Oxford: Oxford University Press, 1969). Constant was particularly keen on landed property. 7. Alexis de Tocqueville, De la Democratie en Amérique (Paris: Gallimard [1835 and 1840] 1951), vol. 2, Part II, chap. 2.

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8. Friedrich A. Hayek, The Road to Serfdom (London and New: Routledge, [1944] 2001), pp. 73–74. 9. For the pristine view, see de Tocqueville, op. cit., vol. 1, Part II, chaps. 7–8. Whether this includes the minority of the rich is of course contentious. Religious toleration implied other, albeit entwined issues, since the Huguenots introduced it in political theory. See Quentin Skinner, The Foundations of Modern Political Thought, vol. 2. The Age of Reformation (Cambridge: Cambridge University Press, 1978), chap. 8. 10. Gramsci in particular defined ‘civil society’ as part of an ‘enlarged state’— though this formulation was somewhat unstable, ‘civil society’ having more autonomy in some passages of his work. While correctly emphasizing their interpenetration, this tends to subordinate the societal political system to the state political system, a move we must resist, as much as the dissolution of the societal aspect into (economic) ‘interests’. Antonio Gramsci, Quaderni del carcere (Turin: Einaudi, [1929–35] 2001), especially vol. 1, p. 662; vol. 2, pp. 734, 763–64, 800–01, 865–67, 1030–31. Closer to democratic liberalism is Jürgen Habermas, Beitrag zur Diskurstheorie des Rechts und des demokratischen Rechtsstaat (Frankfurt am Main: Suhrkamp, 1992), chap. 8. He and his followers produce too sharp a caesura between ‘civil society’ and the self-steered and self-referential political system, though. 11. Easton, A Framework for Political Analysis, pp. 37–69. 12. This partly justifies key ideas of the ‘contentious politics’ research programme, which focused on social movements almost exclusively concerning their relations to the state; yet this is, after all, not really adequate. Doug McAdam, Charles Tilly and Sidney Tarrow, Dynamics of Contention (Cambridge: Cambridge University Press, 2001); Charles Tilly and Sidney Tarrow, Contentious Politics and Social Movements (Oxford: Oxford University Press, 2007). 13. Easton, A Framework for Political Analysis, pp. 108–31. 14. Max Weber, Wirtschaft und Gesellschaft. Grundriβ der verstehenden Soziologie (Tübingen: J.  C. B Mohr [Paul Siebeck], [1921–22] 1980), pp.  140–42, 654ff; Idem, ‘Parlament und Regierung in neugeordneten Deutschland’ (1918), in Gesammelte politische Schriften (Tübingen: J. C. B Mohr [Paul Siebeck] 1988); Joseph A. Schumpeter, Capitalism, Socialism and Democracy (New York and London: Routledge, [1943] 1994), pp. 252–62. 15. Robert Dahl, Polyarchy: Participation and Opposition (New Haven, CT: Yale University Press, 1971); Idem, Democracy and its Critics (New Haven, CT: Yale University Press, 1989), especially p. 252ff. 16. Idem, Who governs? (New Haven, CT: Yale University Press, 1961). Note that, in this book, he analysed New Haven’s local politics: had he dealt with national politics, the gap between the ‘political stratum’ and common citizens would surely be much bigger.

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17. J. Habermas, Theorie des kommunikativen Handelns (Frankfurt am Main: Suhrkamp, [1981] 1988), pp. 253ff, 471ff, 563ff; Fazität und Geltung, chap. 7.  See also Gabriel Cohn, Sociologia da comunicação  (São Paulo: Pioneira, 1973). 18. See Talcott Parsons, ‘On the concept of political power’ (1963), in Sociological Theory and Modern Society (New York: Free Press, 1967); Anthony Giddens, Central Problems in Social Theory (Houndmills: Macmillan, 1979), chaps. 2, 4; Michael Mann, The Sources of Social Power, vol. 1. A History of Power from the Beginning to A.D. 1760 (Cambridge: Cambridge University Press, 1986), chap. 1; J. M. Domingues, Sociological Theory and Collective Subjectivity (Basingstoke: Macmillan and New York: Saint Martin’s Press [Palgrave], 1995), chap. 8. 19. Especially, though not only, in J. M. Domingues, Aproximações à América Latina (Rio de Janeiro: Civilização Brasileira, 2017); Idem, Latin America and Contemporary Modernity: A Sociological Interpretation (New York and London: Routledge, 2008). 20. Marx and Engels are the originators of this field. Very influential contemporary perspectives are found in Tilly and Tarrow, op. cit.; S.  Tarrow, Power in Movement: Social Movements and Contentions Politics (Cambridge: Cambridge University Press, [1994] 2011); Alberto Melucci, Challenging Codes: Collective Action in the Information Age (Cambridge: Cambridge University Press, 1996). The former concentrates, as already observed, on relations with the state, the latter on molecular processes. See also, bridging the European and North American  traditions of studies of social movements, the former concerned mostly with macro-processes, Klaus Eder, The New Politics of Class: Social Movements and Cultural Dynamics in Advanced Societies (London: Sage, 1993). We also have to reckon with the far-right, including fascist movements. See Michael Mann, Fascists (Cambridge: Cambridge University Press, 2004). 21. This is a rather old concept, with a large body of literature behind it. For recent approaches, see Justin Lewis, Constructing Public Opinion: How Political Elites Do What They Like and We Seem to Go along with It (New York: Columbia University Press, 2001); Clem Brooks and Jeff Manza, Why Welfare States Persist: The Importance of Public Opinion in Democracies (Chicago and London: The University of Chicago Press, 2007); J.  M. Domingues, ‘Public opinion and collective subjectivity: a conceptual approach’, Distinktion: Journal of Social Theory, vol. 19 (2018). 22. Mann, op. cit., chap. 1; Michel Foucault, Sécurité, territoire, population. Cours au College de France, 1977–1978 (Paris: Gallimard/Seuil, 2009). 23. Karl Marx and Friedrich Engels, Manifest der kommunistischen Partei (1848), in Werke, vol. 4 (Berlin: Dietz, 1978), p. 464. Although arising from class antagonisms, the state was ambiguously seen as hovering above society by the late F. Engels, Der Ursprung der Familie, des Privateeigentums und des Staats (1884), in K. Marx and F. Engels, Werke, vol. 21 (Berlin: Dietz, 1962), p. 152ff.

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24. Ralph Milliband, The State in Capitalist Society (London: Weidenfeld & Nicolson, 1969), chap. 2; Nicos Poulantzas, L’Etat, le pouvoir, le socialisme (Paris: Presses Universitaires de France, 1978), pp.  139ff; as well as his previous, more orthodox, Pouvoir politique et classes sociales, vols 1–2 (Paris: Maspero, [1968] 1972). See also Bob Jessop, State Power (Cambridge: Polity, 2008), among his several books on the topic. Two more positions must be mentioned here, within the Marxist tradition: a more functionalist view, which sees the economy as limiting and conditioning the moves of politicians and state officials, and an approach that understands the state ‘form’ as a derivation from economic processes and forms. See, respectively, Claus Offe, ‘Klassenherrschaft und politische System. Zur Selektivität politischer Institutionen’ (1972), in Strukturprobleme des kapitalistischen Staates (Frankfurt am Main: Suhrkamp, 1973); Joachim Hirsch, Materialistische Staatstheorie. Transformationsprozesse des kapitalistischen Staatensystems (Hamburg: VAS, 2005), chap. 1. 25. M.  Mann, The Sources of Social Power, vol. 2. The Rise of Classes and Nation-States, 1760–1914 (Cambridge: Cambridge University Press, 1993), chap. 3. 26. Wendy Brown, States of Injury: Power and Freedom in Late Modernity (Princeton, NJ: Princeton University Press, 1995), chap. 7. 27. Manuel Castells, The Power of Identity: The Information Age: Economy, Society and Culture, vol. 2 (Malden, MA and Oxford: Blackwell, [1997] 2004), p. 360. 28. Parsons, ‘On the concept of political power’. Developmentalism in Latin America and other areas strongly held this outlook. See Atul Kohli, StateDirected Development: Political Power and Industrialization in the Global Periphery (Cambridge: Cambridge University Press, 2004). 29. Easton, A Framework for Political Analysis, p. 122. 30. Zavaleta Mercado, ‘Cuatro conceptos de la democracia’ (1981), in op. cit., p. 81. 31. Still crucial is the theory of the ‘iron law of oligarchy’, proposed with direct reference to political parties and applicable to many other organizations, by Robert Michels, Political Parties: A Sociological Study of the Oligarchical Tendencies of Modern Democracy (New York: Free Press, [1911] 1949). See Gramsci, ‘Noterelle sulla politica del Machiavelli’, in op. cit., vol. 3, for an alternative view and project, with democratizing contours. The main works of reference are now Maurice Duverger, Les Parties politiques (Paris: Armand Colin, [1951] 1954); Angelo Panebianco, Political Parties: Organization and Power (Cambridge: Cambridge University Press, [1982] 1988). The former stressed the model of the ‘mass party’, the latter revised Michels’ thesis in terms of a trend rather than an inevitability and pointed to a new model of party, the ‘electoral-professional’, with ‘dominant coali-

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tions’ (a weaker concept for oligarchies). For closer links between parties and state, as well as ‘party collusion’, see Richard S. Katz and Peter Mair, ‘Changing models of party organization and party democracy. The emergence of the cartel party’, Party Politics, vol. 1 (1995). For a more encompassing, if somewhat loose, typology, Richard Gunther and Larry Diamond, ‘Species of political parties: a new typology’, Party Politics, vol. 9 (2003). Mostly, these typologies are limited by their direct ideal-typical, hence empirical derivation, rather than analytical construction. 32. Bernard Manin, Principes du gouvernement représentatif (Paris: Flammarion, [1995] 1996); Herbert Kitschelt, ‘Social movements, political parties, and democratic theory’, The Annals of the American Academy of Political and Social Science, vol. 528 (1993); Gunther and Diamond, op. cit. 33. L.  Tapia, El estado de derecho como dictadura (La Paz: Cides/UMSA, 2011). The classical study of electoral and parliamentary systems is Douglas Rae, The Political Consequences of Electoral Laws (New Haven: Yale University Press, [1967] 1971). 34. Philippe C.  Schmitter, ‘Still the century of Corporatism?’ (1974) and ‘Modes of interest intermediation and models of social change in western Europe’ (1977), in P.  Schmitter and Gerhard Lehmbruch (eds), Trends towards Corporatist Intermediation (Beverly Hills and London: Sage, 1979). This volume also contains valuable articles by Jessop, Panicth and others. 35. Francis Fukuyama, Political Order and Political Decay: From the Industrial Revolution to the Globalization of Democracy (New York: Farrar, Straus and Giroux, 2014), pp. 479–81. 36. M.  Castells, Communication Power (Oxford: Oxford University Press [2009] 2013). For the public sphere, in a unitary and quasi-elitist perspective, see the classic J.  Habermas, Strukturwandel der Öffentlichkeit. Untersuchungen zu einer Kategorie der bürgerlichen Gesellschaft (Frankfurt am Main: Suhrkamp, [1962] 1990). Critically, see Cohn, op. cit. 37. Antoine Garapon, Le Gardien des promesses. Justice et democratie (Paris: Odile Jacob, 1996). 38. Marx and Engels, op. cit.; Weber Wirtschaft und Gesellschaft, pp.  122ff, 541ff; ‘Parlament und Regierung in neugeordneten Deutschland’. 39. Gramsci, Quaderni del carcere, particularly ‘Noterelle sulla politica del Machiavelli’ and vol. 2, pp.  763–64; Ranajit Guha, Dominance without Hegemony: History and Power in Colonial India (Cambridge, MA and London: Harvard University Press, 1997), pp. 20–23ff. In the latter, we find how these things operate (or not) in different civilizational coordinates. 40. K.  Marx, Das Kapital. Kritik der politischen Ökonomie, vol. 1 (1867, 1873), in K.  Marx and F.  Engels, Werke, vol. 23 (Berlin: Dietz 1962)

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p.  85ff and chap. 6; A.  Giddens, A Contemporary Critique of Historical Materialism (Houndmills: Macmillan, 1981), p. 128. 41. Eugeny B. Pasukanis, La Théorie generale du droit et le marxisme (Paris: EDI, [1924] 1969), pp. 75, 132–35; Zavaleta Mercado, ‘Notas sobre fascismo, dictadura y coyuntura de disolución’ (1979), in op. cit., p. 6. 42. Pierre Bourdieu, Sur l’Etat. Cours au College de France 1989–1992 (Paris: Raison d’Agir and Seuil, 2012), pp. 166, 546; Idem, ‘La force du droit. Eléments pour une sociologie du champ juridique’, Actes de la recherche en sciences sociales, vol. 64 (1986). 43. See Barrington Moore Jr., Social Origins of Dictatorship and Democracy: Lords and Peasants in the Making of the Modern World (Boston, MA: Beacon, 1967). 44. As actually supported, to some extent rather than diagnosed, as part of individual recognition, in the Meadian liberal tradition, by Axel Honneth, Kampf um Anerkennung (Frankfurt am Main: Suhrkamp, 1992), chap. 5. 45. Talcott Parsons, The Structure of Social Action (New York: Free Press [1937] 1966), chap. 3; The Social System (New York: Free Press, [1951] 1979), pp. 3–8, 36ff. 46. Michel Dobry, Sociologie des crises politiques (Paris: Presses de la Fondation National de Science Politiques, [1986] 1992), pp. 21–22 and chaps. 3–4. 47. Gramsci, op. cit., passim. 48. Zavaleta Mercado, ‘Cuatro conceptos de la democracia’, pp. 81–82. 49. Marx, Der achtzehnte Brumaire des Louis Bonaparte, pp. 142ff, 183ff. For insightful comments, Kojin Karatani, ‘Introduction: on the Eighteenth Brumaire of Louis Bonaparte’, in History and Repetition (New York and Chichester: Columbia University Press, 2004). He speaks of the ‘return of the repressed’ imaginary of Absolutism, a problematic view, according to what we discussed in Chaps. 2 and 3. His view of fascism as Bonapartism is, moreover, unacceptable. 50. Gramsci, op. cit., vol. 2, pp. 1194–95; vol. 3, pp. 1619–22, 1680–81. In any case, the idea that a negative-sum game between classes underlies this sort of phenomenon is interesting. Poulantzas, Pouvoir politique et classes sociales, vol. 1, p. 122ff. Let us stress political practices and avoid capture by an overemphasis on discourse, contrary to Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy (London and New York: Verso, 1985). 51. Gino Germani, Política y sociedad en una época de transición (Buenos Aires: Paidós, 1965), chaps. 3, 5, 7–9. 52. Samuel P. Huntington, Political Order in Changing Societies (New Haven, CT: Yale University Press, [1968] 2006), pp. 4, 47–50, 79. He also draws especially upon the concept of ‘social mobilization’ suggested by Karl Deutsche, ‘Social mobilization and political development’, The American

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Political Science Review, vol. 55 (1961). Uneven social change was as important for him work as for Germani. Note that the second wave of modernization theorists in the US were wont to criticize former colleagues whose naiveté in expecting smooth processes of modernization, specifically political modernization, they correctly challenged. However, decay and breakdowns were seen by them either as likely or as at least a possible result of problematic modernization, not as phenomena derived from crises of hegemony and the instability of liberal institutions amid social struggle. For a milder understanding of these issues, check Shmuel N. Eisenstadt, Modernization: Protest and Change (Englewood Cliffs, NJ: Prentice-Hall, 1966). 53. J. M. Domingues, ‘The republic in crisis and future possibilities’, Ciência e saúde coletiva, vol. 22 (2017); Dobry, op. cit. 54. Ernesto Laclau, On Populist Reason (London and New York: Verso, 2005). 55. J.  M. Domingues, Social Creativity, Collective Subjectivity and Contemporary Modernity (Basingstoke: Macmillan and New  York: Saint Martin’s Press [Palgrave], 2000), chap. 2; Idem, ‘Imaginary and politics in modernity. The trajectory of Peronism’ (2016), in Emancipation and History. 56. Idem, ‘The republic in crisis and future possibilities’. 57. David Graeber and Marshall Sahlins, On Kings (Chicago: University of Chicago Press, 2017). 58. Gramsci, op. cit., vol. 2, pp. 962–64, 1220, 1324–25; vol. 3, pp. 1766–68, 1781, 1885, 2011. Clearly, the residues of a Jacobin—and Leninist—view of revolution lurked in his mind. Almost all revolutions in modernity, should we stick to this characterization, would have been passive, which is obviously a meaningless conclusion. See Domingues, Latin America and Contemporary Modernity, pp. 199–22. A more restrictive and poorer conception of the ‘power block’ (which included only the ruling class) is found in Poulantzas, Pouvoir politique et classes sociales, vol. 1, pp. 52ff. 59. Carl Schmitt, Der Begriff des Politischen (Berlin: Duncker & Humblot, [1932] 2009). 60. Vladimir I.  Lenin, The Collapse of the Second International (1915), in Collected Works, vol. 21 (Moscow: Progress Publishers, [1918] 1974), chap. 2. 61. N. Poulantzas, Fascisme et dictadure (Paris: Seuil/Maspero, [1970] 1974); Franz Neumann, Behemoth: The Structure and Practice of National Socialism (Chicago: Ivan R. Dee, [1942, 1944] 2009); Robert O. Paxton, The Anatomy of Fascism (New York: Alfred A. Knopf, 2004).

CHAPTER 5

State Power Developmental Trends

5.1   The Double Expansion of the State From the moment neoliberalism entered the historical stage, a heated debate has been taking place. Neoliberals have demanded a rolling back of the state, connected to the denunciation of its supposed appalling growth and oppressive features, which were inimical to freedom. This was counteracted by critiques of neoliberal governments for their efforts to cut back and shrink the state, ‘deregulate’ the economy and skirt social benefits, partly taking neoliberals for their words.1 Neoliberal criticism of the state was replicated in New Left perspectives, for phenomena like the ‘colonization’ of the lifeworld, in Habermas’ famous formulation (which he later seemingly abandoned) and attendant loss of freedom.2 Actual state evolution since then proved to be far more complicated than any of these perspectives was capable of devising. The left has had to weigh the pros and cons of its critical position during the 1960s and 1970s, yearning for a return to a strong welfare state and state control of the economy. More strikingly, here again the liberal difficulty in dealing with state power such as it really exists comes to the fore, now with a more radical protagonist, namely, neoliberalism. Criticizing the growth of the state and the loss of freedom this purportedly entailed was easy, but recognizing and conceptualizing what happened next has been less of an agreeable task for them, concerning both presuppositions and consequences. To some extent, neoliberals live in convenient denial.

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The social sciences have piecemeal come to grips with this new reality, which is part and parcel of what I have been calling the third, advanced phase of modernity, though this is a contingent form of its unfolding. I shall try to synthesize, combining approaches to the present with theories about the past, and go beyond current perspectives, some of them at any rate innovative and sensitive to ongoing developments of the state. For this, I will in particular articulate the concept of total state power and analyse its continuous expansion in modernity as a developmental trend. The modern state does not operate on its own, though. It is effective only when attached (neither as a derivation nor as a prior reality) to a liberal ‘society’, within which legal institutions cast a wide net, being firmly and deeply consolidated, in the imaginary and by and large institutionally. We cannot speak of a process of monopolization of power, yet an enduring strengthening of the state can really be discerned. The enhancement of state power is in progress too, connected to but not to be conflated with the former. While they do converge, they must be kept separate analytically. Finally, the concentration of power in a few entwined sites in social life, the state standing out among them, will be tackled. Evidently, bureaucratization could not be forgotten in this respect. It implies what I referred to in Chap. 3 with respect to rights, now encompassing the totality of social life, as the bureaucratic thickening of the state. All in all, it is not simply or even mainly the growth of the state that matters here. Actually, it may relatively shrink and its power augment, due to the intensification of rational utilitarian expediency when it operates. This, however, can be grasped only qualitatively and conceptually. One could argue that these developments are typical only of the West. On close inspection, this is far from the case. We can speak of a double expansion of the modern state. It happens geographically, for it has spread out and encompassed the whole world and its power mounted, its capacity to penetrate and steer social life surpassing any form of state and domination previously known to humankind, basically everywhere, particular states learning from each other as well as competing.3 This in fact implied a sort of double genesis of the modern state, its success two times over, as an ‘instrument’ and an ‘idea’.4 In this chapter, it is the more vertical, general state power issue that will receive pride of place rather than the horizontal, the state’s global spread, to which we will return in Chap. 7. In what follows, we will be discussing the evolution of state domination. This refers to the state taken in a very general way, regarding hitherto undefined scalar coordinates. In actual history, many states fall apart,

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others are destroyed by outside forces, all of them are more or less influenced by other states. We must for now abstract from these issues and focus on those more general issues, whose development prevails over these variations, actually only insofar as they combine directionality and irregular historical developments, the latter obtaining through the former.5 A trend is not a ‘law’ that could be taken to exist somewhere obscurely defined and would be thus imperfectly and conditionally realized in real social life. It is a process in which mechanisms, based on agency, play a pivotal role and are not ever absolute, though either by design or a consequence of a composition of disparate moves a steady course is steered into the future. Let us first grasp the main elements of total state power. After that, we can deepen what such a trend truly entails, substantively as well as methodologically. In the following chapter, we shall deal with countertrends related to the evolution of freedom and autonomy.

5.2   State Power and Society 5.2.1  The Elements of Total State Power The state is what may be called a ‘power-container’.6 It is the main one in modern society, regardless of how much other agents concentrate power, in the sense of, within interactions, being capable of influencing other agents’ nature and moves. Total state power is the power the state has, in different aspects, to penetrate, shape and coerce society. We can decompose it analytically in six general capabilities: taxation, managing, moulding, surveillance, coercion and materialization. They all rest upon the general bureaucratization of the state, according to the meaning Weber, as seen in Chap. 2, lent to the term. That is, including the increasing instrumental adaptation of means to ends, accompanied by the increasing impersonality of relations in administrative settings and a thick machine to implement its policies. All those specific capabilities are dependent upon what I call state legal meta-capability, with the penetration of law in social life expanding and intensifying.7 This is connected to the overwhelming incidence of liberalism and refers to law-making power overall. Originally, it was to be held only by the legislative branch of the state, with the supervision of the judiciary, although its implementation was a responsibility of the executive. As modernity advanced, parliamentary and administrative law have become far-reaching and ever more intrusive, with more prosaic regulations

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writ large across social life. The state itself, as well as particularly the societal side of the modern divide, is traversed by these regulations. If modern law exists as law precisely because it is state-based or is somehow implicitly recognized and legitimated by the state, it is only inasmuch as society at large is structured via law that it achieves what Kelsen defined as ‘efficacy’. Everything it touches, like King Midas, thus becomes legal or illegal.8 Only if individuals and collectivities have their relations woven to a large extent by law is the liberal state, rational-legal domination, capable of reproducing itself. When this happens, it tends to achieve a higher level of stability. This is the cornerstone of liberal hegemony. Taxation is our first, specific and rather obvious category: it refers to the state’s capacity to extract resources, on a regular basis, from its ‘society’. Before modernity, this was harder. With surplus much lower than after the 1700s in Europe and more limited cash flows, the level of taxation the state could implement was, according to all estimates, equally limited. Through taxation the state can get hold of ‘free-floating’ resources, plentifully available also because of the writ of money in capitalism. The modern state could arise only when officialdom started to be paid by monetary means, becoming more directly dependent upon autonomous state power too, rather than upon patrimonial schemes, the social origins of state agents notwithstanding.9 With European states’ taxes reaching around 40 or 50 per cent of Gross Domestic Product  (GDP) (and even more in Scandinavia) at the height of the second phase of modernity, in which direct state intervention in the ‘economy’ and the welfare state thrived, the difference cries out. Changes in the state’s role and activities notwithstanding, levels of taxation did not really decrease. There are, however, shifts in which layers of the population are targeted from being mainly the rich to the middle classes and even the poor (regressively, with much indirect taxation). Of course, actual tax avoidance, tax evasion, tax planning, tax havens, and so on, imply a huge amount of wealth being siphoned away from the national state. This represents a substantial diminution of resources that would otherwise have been collected.10 Without plentiful resources, state power cannot grow. This is a capability that literally sustains all other capabilities. Taxation has been charged first with guaranteeing resources to the state as such, possessing therefore a ‘fiscal goal’. It performs, furthermore, a ‘social goal’, by which the state regulates social activities—from economic life to individual habits, from balance of economic power between social classes to, in principle, almost any imaginable aim.11

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Managing refers to policies directly pursued by the state, to commands and inductions put forward to affect immediate realities. Thereby, the state steers social life. This, alongside repression, has been the most discussed activity of the state: administration. Macroeconomic policies clearly fall into this categorization, the same obtaining in relation to development, social and educational policies, physical and communication infrastructural projects, the organization of elections, the payment of officials and state organization, as well as innumerable other such activities. This is the capability which, possibly along with taxation, has suffered most with recent changes in the conformation of state and society. Subtler and long-­term processes are framed not so much by managing, but by the following capability. Moulding refers to the capability to lend shape to the diverse components of social life, regarding form and content—imaginaries, practices, institutions, individual personalities and social systems, the way individuals and collective subjectivities intervene in the world, that is, relate to one another and to nature. Who we are and what we want, the patterns of practice and behaviour, the symbols that lend meaning to our lives and the world at large, the regularized and more or less repetitive, formally established or not, actions, moves and relations that weave social life: all this is modelled by the state. Moulding is run by several state agencies, political and bureaucratic. With modernity it has assumed a deeper, piercing impact, and much more capillarity, covering all aspects of social life, although of course and inevitably falling short of total control and forecast. Former states displayed this sort of power, restricted as it is to certain sectors of the population and places within its frontiers (and sometimes beyond them). People are now moulded by the state, even in some part in their rebellious nature, since this is carried out within frames offered by its operations, never absolutely, to be sure. But make no mistake: force, physical and psychological, is a permanent and internal component of moulding, not incidental or external to it. This is essential to all processes whereby social life is shaped: escaping from the designs of state has basically become an impossible option. We are all caged. The social function of taxation can be linked to moulding: it bends people according to economic incentives and disincentives. Yet moulding is, overall, soft power, to make recourse to a current expression. If some level of compulsion is present, connected to negative sanctions, it is as a positive operation that characterizes moulding. It is often variably concerted between the state and societal agents, with c­ onsent and consensus being present or constructed to some extent in such social interactions.

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Knowledge is decisive in moulding operations, intricately evincing the intertwinement of cognitive and constructive operations, for instance in ‘numbering’ and ‘mapping’ social agents, then disciplining them according to their commonalities and differences.12 Involving the state, ordinary agents and experts, a two-way production of theories and hermeneutic-symbolic constructs plays a crucial role in moulding.13 This relates directly to the ‘double hermeneutics’ mentioned in the introduction of this book. The subtle or not so subtle processes by which the state shapes social life hinge on very sophisticated conceptualizations and normative standards as well as aesthetic (expressive) patterns, which in particular evince the emotionally charged aspects of moulding. The very notion of citizen and of the figures in the state apparatus related to it, with corresponding typifications, such as they appear in modern nation-states and occupied us in Chaps. 1, 2 and 3, are partly dependent upon moulding. The newly independent arts, music, drama, literature, painting and the like, have also been crucial for moulding, as part of its aesthetic element, likewise largely under state influence. Despite these niceties, moulding, even when it is very soft, may imply a high amount of what Bourdieu called ‘symbolic violence’, especially for subordinate collectivities.14 Coercion is the capability of using physical and psychological force to directly strong-arm people and compel them to do things they might not otherwise do. It may be pervasive but, almost paradoxically, it is invisible or stays highly disguised. Law-making, not only the preservation of law, has violence always implicit—if not in its immediate origins—entangled as it is with state domination and because it looms large and may erupt should people not abide by those laws.15 Coercion is directly connected to the modern state’s legal meta-capability. It is no sheer repression, nevertheless, although it may burst out despotically and viciously. This is so not only to the extent that it sets external legal parameters for behaviour and builds institutions, beyond such outbursts, organizing much of social life thereby. It can, first of all, in its constant or fleeting nature, shape the elements mentioned above—namely, the full array of symbols, practices, institutions, individual personalities, social relations, social systems and our bonds with nature. It may be so overwhelmingly present that people cannot even conceive of themselves, individually and collectively, as doing different things or the same things differently. In this regard, coercion is not purely negative, that is, repressive. It shows a productive edge, without detriment to its productivity in that it underpins whatever moulding operations the state implements. Nevertheless,

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coercion can be predominantly punitive, including, at its extreme, genocidal practices. Finally, it is dependent upon knowledge. Who, why and how to repress and hurt is no longer, overall, a random process. It has become increasingly rooted in science—or in purportedly scientific ‘theories’—with cognitive, normative and aesthetic components, the latter often predominating when the display of violence aims at an exemplary effect. Taxation, in turn, rests rather bluntly on the capacity the state has to coerce people into paying their dues. Surveillance is a fourth capability to be taken into account. It appears in both moulding and coercion, as the state maintains a permanent watch over individuals and collectivities. Collecting and interpreting information, following specific, targeted populational groups and singled out individuals, intermittently or systematically, are crucial aspects of state activity. Tax offices and medical and psychological apparatuses, educational and social policy departments, are trusted with these tasks. Knowledge present in moulding and coercion rests upon as well as orients surveillance. Shaping and repressing hinge directly on it, since it lends elements to theories and policies, identifying possible or actual detours and resistances that demand renewed efforts and/or corrective measures. Last but not least, we must not forget materialization, the capacity without which the state cannot build its actual infrastructure (including jails, civil and military buildings, roads, airports and communications, weapons, space rockets and swage-systems). This is also a crucial feature underlying all state capabilities, which especially depends on legal definitions, taxation and managing. Otherwise the state can hardly do anything, except at its very centres, a shortcoming modernity has managed to overcome, perhaps historically more slowly than we are used to think.16 Total state power is the sum of all these elements. Together they answer for the active side of this juridical-political entity as a power-container. They can either all be exercised directly by the state’s apparatuses or it can take recourse in external partnerships, for instance, building policy networks or through outsourcing. Its power can be amazingly intensified thereby. Repression has been a capability regularly discussed in much of the social sciences—and in political and social philosophy before that. From Hobbes to Marx and Weber it featured prominently, closely connected to the idea and practices of state sovereignty. Surveillance and knowledge (or ‘power-knowledge’) became trendy with Foucault’s work. ‘Discipline’ and ‘governmentality’ (‘biopolitics’) have been a means to conceptually render

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state moulding, although he tried to deflect what he regarded as an excessive concern with the state towards an analysis of societal apparatuses of power (especially vis-à-vis ‘discipline’).17 Giddens stressed the role of surveillance and connected it more tightly to the state (something we find occasionally in Foucault’s interviews and minor texts, when he relaxed and partly gave his game away). Mann, in turn, spoke of ‘repressive’ and ‘infrastructural’ power (close to what was defined here as moulding, in tandem with other definitions, not necessarily very translucent and useful).18 Oddly, none of these authors, to the best of my knowledge, ever refers to Gramsci’s concept of ‘hegemony’, in which both ‘consensus’ and ‘coercion’ contribute to shape subjectivity. It is hard to imagine that any of them did not read some of his work (and was probably somehow, directly or indirectly, influenced by it) and some of Althusser’s, in which the somewhat cruder ideas of ‘state ideological apparatuses’ and ‘interpellation’ as a means to fashion ‘subjects’ were present.19 If the market was supposed to carry the burden of many moulding operations in the first phase of modernity, the welfare state, such as built during the phase of state-organized modernity, was a crucial site for moulding operations. It established ‘conventionalizations’ of all sorts, defining identities and roles to be performed by individuals and collectivities.20 It has not been so much rolled back as it has been mutating over the last decades. ‘Workfarism’ thus substitutes for ‘welfarism’, demanding work and training against benefits, even if these are meagre and there are no jobs. Doubtlessly, this is another part of moulding, however more violently it is deployed. On the other side of the fence, privileged people are treated very softly by this highly selective state.21 In the last decades, there has been a startling growth of the penal wing of bureaucracy in the US and elsewhere. It includes the courts and the police, extending well beyond them, into the prison system, in which in many cases moulding has been substituted by a more brute way of dealing with inmates, a regular feature, incidentally, of many non-western, central countries. Bear in mind that repression and modelling go together, with results that surely have nothing to do with re-socialization and re-­ education. This is not a secondary or deviant aspect in relation to neoliberalism, notwithstanding the greater ambiguity of its relation to different sorts of liberalism. It consists in one of its constitutive elements in the present third phase of modernity, with a veritable revolution in the criminal justice system.22

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Surveillance has reached unprecedented peaks in terms of how extensively states spy on their (and others’) ‘societies’. Again, this is not external, but internal to liberalism, which has a security dimension connected to the protection of the state itself—as observed in Chap. 2—often in tandem with underlying principles of ‘reason of state’. This was carried over from Absolutism through Enlightened despotism to the modern state. Part of the liberal state, if taken to extremes, it may yield some dissonance between practices and explicit principles. But, consistently with the tough rule of neoliberalism, which is oblivious to any consistent demand of rights, even civil beyond the defence of property and competition, we are witnessing the strengthening of a ‘security state’. We do witness greater concern with these tensions, even by liberal operators of the state. Now prevention of delicts (especially but by no means only terrorist acts) implies that anyone is to some extent at all times a suspect (with some populations chiefly targeted). It is not after crimes are committed that the state should intervene: it ought to forestall them. Even more drastically, the state as such has consistently resorted to illegal measures and strategies, not occasionally, instead as constitutive activity. If not directly demanded by citizens, they can strongly support such moves. Even more murkily, this ‘deep state’ may be easily related to neopatrimonialism and the links of some of its sectors to criminal societal groups, consequently opening up to the shadowy world within the societal side of the modern divide, in this case in a rather peculiar and sinister manner.23 Note that, for Austin, the state could never be legally ‘despotic’ (in its sovereignty it was absolute), although a ‘popular’ government (‘democratic’, restrictively and effectively ‘aristocratic’) should listen to public opinion. The extent of liberty depended on expediency as to security, a point at least implicit in Hobbes’ original formulation. Here, Schmitt’s notion of the sovereign as ‘he who decides on the exception’ (including criminal activities) and defines who is the ‘enemy’ to be targeted (friends and foes taking up a complex turn) stands out, whether or not he had the liberal state in mind. These practical moves authorize all sorts of state activity.24 This actually rests on what Morgenthau identified in the United States during the 1950s as a ‘dual state’, premised on the rule of law on the one side, and its disrespect as well as criminal conspiracy on the other, although harsh security measures may receive (on occasion anti-­ constitutional) legal cover.25 Conversely, the glossing over of this side of the state is usually striking in liberalism, the uneasiness and sometimes counter-mobilization of its supporters being more strongly committed to

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civil rights notwithstanding.26 This has become, in secrecy and denial, a set piece of the rational expediency of the modern state, in its liberal versions as much as others, even though tendentially in a softer way. In short, where the state predominantly intervenes in or regulates the societal dynamic has varied and so has the direction this may take. The same applies to which agencies within it, political and bureaucratic (or supposedly post-bureaucratic), have prominence in these moves. Shifts and new options characterize recent processes, not really state shrinking. This has not been really verified, not even as to budget cuts (though the ratio GDP/tax suppression by legal or illegal means has worsened): the state has been ‘rolled back’ in some aspects and ‘rolled forward’ in others.27 But this, as already observed, is not really the point: all those state capabilities, more or less intact and under more or less pressure, remain superlatively important. Actually, some of them tend to become more effective, for how the power relations of the state with other agents are built exceedingly matters, their importance and reach fluctuating according to which tasks the state takes up. Here, let us pause and not run ahead of ourselves. We must return to our analytical demarche. 5.2.2  The Strengthening of the State All aspects of state power—hence total state power—have been increasing from the onset of modernity onwards. There is some fluctuation in this directional development and its six aspects do not necessarily develop constantly, irreversibly and at the same pace. The overall result, notwithstanding, seems clear: state power enhancement as a developmental trend, increasing its potential to intervene in social life. The state has become, once personal relations of domination eroded, also a main site of power, the power-container I mentioned at the opening of this chapter. In order to understand this properly, we first of all have to distinguish between two concepts: strengthening and centralization. Strengthening refers to the increasing amount of power states directly possess or can muster alongside other agents. Centralization refers to direct control over power capabilities. Although it may sound paradoxical, the strengthening of state power may go hand in hand with de-­centralization. Conversely, centralization, due to rigidity, may inadvertently weaken the state. It is as if power ran through the fingers of politicians and state officials: societal organizations attempt to reject or

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downplay common endeavours, let alone the lack of interest of state agents in establishing partnerships. This is however beside the point in what regards the legitimate means of violence within its territory, to resume the Weberian argument, which are centralized in the state. Not only does it control directly most of the means of violence, in terms of weaponry at least, not necessarily in what concerns our bodies, but people are convinced that this should be the case. There are a few, limited exceptions to this, such as the US. Moreover, in the Weberian argument, it seems that no actual development has taken place once that monopoly was achieved. Concerning power capabilities, the situation is more complicated. We often, or even usually, think in terms of so-called zero-sum games (in which for one to win the other has to lose), rather than positive (all win) and negative (all lose) sum games, when reckoning with power. Yet often when we observe a strengthening of state power, that is, how much those capabilities can be deployed by the state, it is accompanied and in part supported by a simultaneous increase of power in societal organizations that are closely connected to and can be deployed by the state. This happens whether joint-ventures proper are articulated or whether the state outsources some of its capabilities and tasks. Being crucial for state power in terms of moulding, surveillance and materialization, as well as to some extent of managing too, these organizations put together with the state a sort of system that concentrates power. This happens mostly with the state at the helm of their coalition, without necessarily a centralization of all capabilities in this largest of power-­ containers. Of course, this may happen, with positive consequences for their projects too. We can thus speak of a shared concentration of power, resulting in a positive-sum power game, with an increase in the rational expediency of the state’s intervention in social life, alongside its associates. The state is, as a consequence, to a good extent in the last instance capable of exercising political power through societal organizations, although this varies according to how much they are autonomous and allied or opposed to it.28 This strengthening of state power allows it in the end to operate moulding and surveillance more effectively, with the mediation exercised by societal agents becoming increasingly important for these operations as social life complexifies. It is through their connections and tools that the state can partly overcome the obscurities this produces and reach deep and wide into society. Of course, this is by no means a one-way relationship. It may start from the bottom up, since much of state policies and strategies derive

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from societal agents’ blueprints and practices, which may be taken up and generalized or else kept operative but eventually end up regulated from above. These societal organizations have, moreover, their power enhanced thereby. The state’s capability to beget symbols, to weave the imaginary, is vital for its reproduction as a power-container. To accomplish this, a far-­ reaching and ceaseless effort was and remains necessary. Bourdieu in particular hammered this point home. Concentration of symbolic power in the state was and remains therefore crucial, as he critically noted vis-à-vis Weber’s and Elias’ works, with the provisos already introduced above also applying in this domain—that is, partnerships may entail a shared concentration of power in the state. In contradistinction, centralization is often not the best scenario: networks and alliances with societal organizations have become increasingly important as modernity develops. It is not only power and legitimacy that are at stake, though, as Bourdieu and Mann, the latter with his ‘ideological power’, tend to imply. This is existentially necessary: for human beings, the production of meaning, for which the state has been a key agent in modernity, is of the first order. Legitimation rests upon precisely meaningful symbolic, inevitably magmatic, ­constructions justifying state power.29 If it is true that the state did intervene in several domains before modernity was established (alongside the Church in the West), as this civilization progressed, its horizontal and vertical reach has become much larger and deeper, mediated by a much greater variety of non-state agencies. The symbolic organization of the world is part and parcel of that, producing meaning as well as absorbing and regulating it when it is produced in the societal side of the modern divide. Cognition, normativity and expressivity, knowledge in general, science and the arts, which in addition developed into separate domains, have been essential for these new symbolic and legitimizing processes. Overall, a two-way relation, to a good, not absolute extent, has unfolded between the state and society. 5.2.3  Concentration of Power, the State and Societal Collectivities Originally, and up to a certain point, power enhancement and power centralization went together and represented a strengthening of the state: capabilities and the control of instruments to intervene in social life were linked with a social tissue that was not very complex and directly politicized.

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Although surely answering to expectations and demands from specific societal crystallizations within it, the state did not need to build stable networks with societal organizations. As complexity grew and the societal political system was enlarged to incorporate a myriad of these societal organizations, including those of subaltern collectivities, in order to become stronger and direct a plastic social life, the state as a collective subjectivity has had to give up on excessive centralization. This was necessary so that it would be able to craft the necessary partnerships required for its rule, absorbing societal ‘inputs’ and trying to deliver on them. If the state is clumsy in its endeavours, it often sees power slip away from its purview and capabilities. Agents within the state political system, and sometimes, in association with it, in the societal political system, may promise too much without a corresponding performance. Commitment to the state, based on its legitimacy and mobilizing capacity, implying ‘outputs’ expected from society, may therefore decrease when it lets down some, many or, in the worst scenario, all societal collectivities. State power falters thereby—it diminishes.30 New technologies and other sorts of social development may have the same effect, as the internet more recently has shown, complicating the answers the state is supposed to give.31 It is upon state officials and politicians to try and regain ground when this happens, which they more often than not do. Contradictory developments tackled below point out limits as to these strategies and tactics of power. In the development of political modernity, state power has to some extent fluctuated: it has become concentrated, expanded and dispersed, successively.32 There has been no linear development in this regard, a more general trend prevailing over these fluctuations and reverse moves, that is, in the longer run, it is towards the strengthening of the state that social life has been moving. This trend was counteracted in the second phase of modernity with an increase of power for most or many societal collectivities. This is a possibility that remains open. Sadly, in the present configuration of social life, it seems unlikely to prevail, though things can certainly be changed by creative modernizing moves. The alliances and networks states have been building are of a more restrictive character. Whether societal agencies are under state influence and actually help it become stronger depends on a series of factors, relating to what Gramsci called ‘hegemony’, the mix of consensus and coercion we examined in the last chapter and was mentioned once again above. Whereas societal organizations also benefit in numerous cases from the strengthening of state power, which takes them along and allows for the development of their

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own agenda, this may turn against the state, which then loses power if it cannot contribute to hegemonic connections and practices. It may maintain its power—unleashing violence as a last resource—yet become ­isolated, hence ineffective, or at most limitedly effective. To be sure, state power must be specified regarding the collectivities it deals with in society, some of which can be extremely powerful, others much weaker, with balances of forces that have changed since modernity emerged. Initially the bourgeoisie or even modernized landed ruling classes, then the working classes and now more recently once again capitalist agents, in the form of corporations and finance capital, have had more or less sway on state decisions and workings, counting on their crystallizations inside it as well. Their capacity to influence societal organizations is of great importance too. This is what leads to zero, positive and negative-sum power games, in which such agents are of the utmost importance. There are different ways for collectivities to penetrate the state, that is, to make the reverse movement to the one we have been discussing in this chapter, which is from the top down. Representation, such as we considered at different stages in this book, imply that societal collectivities have some grip on the state from the bottom up, relatively expressing their interests and desires as well as counting on mediators placed at the interface of the societal and state parts of the political system. The same is true of, more generally, intermediation. The first phase of modernity did not leave much room for subaltern collectivities to intervene politically through these sorts of mechanism, while the state concentrated power and ruling classes benefited politically from the system of representation, intermediations and more direct crystallizations within the state. In turn, the second phase of modernity saw an increase of state power, with real positive-­sum power games, because of its strengthening and far-reaching enhancement, but also due to what Giddens called the ‘dialectic of control’.33 Thereby many collectivities in the societal side of the modern divide could have a direct electoral say in the state’s workings and policies. Public opinion, crystallizations and other forms of non-electoral representation or intermediation of interests (such as neo-corporatism) would contribute in the same direction. Different societal collectivities would benefit from these processes. In contradistinction, the third phase of modernity has been marked by the growing power of networks, yet, politically, in what refers to the popular classes, a clear autonomization of the state has been under way. It has become less of an arena of struggle between classes. Its power has been

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enhanced and power in general has been concentrated in it, while its entanglement with big capital has been radically reinforced. The collectivities that share power with the state have enormously changed. Positive-­ sum games have been restricted to the state and dominant societal collectivities, to some extent skewed to the benefit of the latter. Big transnational corporations (which retain, contrary to all speculation in this regard, strong national rootedness) and especially finance capital are societal collective subjectivities that have become really prominent in the last decades. They have shaped politics and policies, in what may be seen as a veritable class counterrevolution since the demise of state-organized modernity. Societal organizations connected to the ruling classes have played an increasingly fundamental role in this. We will grapple consistently and in a more empirically oriented fashion with this topic in Part III ahead, but it is not difficult to see that the political space has folded over itself.34 We can thus see that the strengthening of state power has gone along with the decay of the dialectic of control, without the state necessarily, actually the opposite happening more recently, centralizing power capabilities. The state carries on with its links and alliances with societal collectivities, connected to ruling collectivities; those which do not fit the mould end up forced into plain subordination, if they are not simply side-­lined and even badly harassed or repressed. A specific sort of shared concentration of power obtains at this stage of modernity. It in some part resumes, but in and with really different configurations, what happened in its first phase, more liberal-oriented. Travelling upwards, this excludes subaltern collectivities, in a move that has been, at least more recently, a discernible albeit nonexclusive, more restricted nonetheless important developmental trend in modernity. As already argued, certain sections of the state, such as the penal system, can gather momentum and a strength of their own. 5.2.4  Executive Power As this process unfolds, not all components of state power remain stable. This was already mentioned in what concerns taxation and managing, an issue to which we will return below. It is especially in the state’s executive branch that power accumulates, within the political system and in bureaucratic domains, something that sky-rocketed exactly from the 1970s and the 1980s onwards.35 Parliament may be very effective in passing legislation, but this makes sense only if the executive enforces it; besides, the

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latter has taken over much of the legislative initiative the former once had. Courts may be willing to punish those that try to circumvent the law. On certain occasions, they can see their power increased and may try to answer to societal demands, but eventually they depend on the executive—especially the police—in order to bring their decisions to bear. Litigation from the executive may expand too. It is in the executive that moulding and surveillance mainly take place, let alone the deployment of violence. Policies in particular may be defined in the legislative and controlled by the judiciary, but it is from executive power that they are made effective, with several of them enacted directly in the bosom of bureaucratic apparatuses. The capacity to ‘mobilize’ society was an issue during the second phase of modernity, in which the state acquired a visible and openly affirmed pre-eminence. More recently, there has been much less talk about state power and intervention in society, something that is to a large extent an element and a consequence of neoliberal ideology and discourse. In reality, the state has increased its capacity and areas of interest in terms of surveillance and moulding, within a neoliberal framework, in which societal organizations have come to play a more vital role than before, without necessarily any longer caring about subaltern populations and citizens. In order to speak of state power, we need to throw light on the interdependence and entanglement between capabilities, which summons even the international or global arena. This will have to wait, though, till Chap. 7.

5.3   State Power: A Formalization Let us at this point just briefly recapitulate some distinctions laid out above. They are the strengthening of the state, the enhancement of state power and the concentration of power in the state. The first refers to the amount of power states increasingly directly possess or can muster alongside other agents, the second to the growth of specific capabilities that produce total state power and the third to how much power revolves around it, by itself or through power-sharing with other, societal agents. Overall, there is a convergence of the enhancement of state power and the concentration of power in the state. They are related processes, in that each facilitates the other and both depend on bureaucratization. They must not be conflated. Each has its own characteristics and dynamic. It is my contention that these elements wax and wane. In the long run, however, state capabilities and state power become stronger (without necessarily

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implying centralization of power), configuring a dovetailed and robust developmental trend. Their analytical relationship can be defined very simply through a basic formula, presented in Fig. 5.1, in which relations with society must be taken as historically variable and as entailing different sorts of ‘power games’ (zero, positive and negative-sum games). The power resultant of this combination is greater or lower, and varies as much as any of these analytical elements. I doubt this formula could ever be really made mathematically effective, with its variables truly filled with quantitative value definitions that travel up and down. In any case, it may serve as a signpost for more substantive research, helping to ‘factor in’, in qualitative analysis, the several elements that relate to state power (although someone could evidently try some day some more ambitious maths). The resultant power also includes those games specifically related to collectivities which are usually, since this depends on conjunctures as well as on consolidated relations of power, the dominant ones in the societal side of the modern divide. Thus, taxation, managing, moulding, surveillance, coercion and materialization are analytically discrete variables, concretely related and contributing to the enhancement of state power as it develops. They have their own values included in the formula when it is analytically defined. Taken together they result in total state power. This varies in ways that are contingent in relation to the strengthening of the state, although concretely they obvious intersperse. This then relates variably to the power of TSP (=TAX+MAN+MOU+SUR+COE+MAT) _________________________________ / SAP = [SS]PC SS

Fig. 5.1  Total state power (TSP total state power, TAX taxation, MAN managing, MOU moulding, SUR surveillance, COE coercion, MAT materialization, SS state strengthening, SAP societal agents power, [SS]PC shared state power concentration)

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societal agents of any kind, increasing or diminishing state power, with the varying weight of this connection being indicated by the brackets that involve power-sharing. The resultant, therefore, is the combination of these variables, whose value is concretely correlated and analytically contingent, while the character and direction of the negative, positive and zerosum games, which include state power and societal agents, counts for the total resultant value and direction of the situation. Let us remember that power can be utterly dispersed: capabilities may decrease, state strength may diminish, to the point of dwindling, with societal agents increasing their power—or even with the latter being reduced too. Theoretically, this equation can formally accept centralization of power in the state, with dubious effects: society may not answer to its outputs in terms of commands and inducements. The state would hence be unable to see its own policies through, whether because its political system is ineffective in formulating and/or issuing them, as a consequence of a lack of capabilities to implement its directives, or due to the aloofness and possible resistance of societal collectivities. This total social loss of power is usually connected to overall social decay and may entail increased foreign influence, although it may be also brought about by direct foreign intervention, when the whole situation assumes a rather different configuration. Some of these capabilities, especially taxation, count on the state as a highly centred collective subjectivity; others flow from decentred interventions in social life. This does not detract from the strength of the state, which is not to be taken as consistent in its operations. That said, those capabilities can be, on occasion, taken up by core sectors within the state and lend a more centralized and centred character within, with clear ­intentionality, without, by the way, centralization in what regards societal collectivities, whose role may remain exceptional. The level of coherence of state intervention in society, especially concerning infrastructural power, can be greater or smaller, depending on the homogenization of the societal crystallizations within it as well as on that of the coalitions it builds with forces directly in the societal side of the political system, depending on how the political system is structured and intermediation is carried out. A high level of centring can arise intentionally from this sort of centralization, successful insofar as it is well connected socially. It may be, conversely, unintentionality fostered, not sought for and unforeseen. It may be, on the other hand, eventually perceived and appreciated by many operators. Once again, causal impact is something else: it does not vary with the level of coherence of the state nor is it correlated to its level of centring.

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5.4   Developmental Trends and Mechanisms We have thus far analytically depicted the main elements and the resultant of state strengthening. An essential question now is in order: what are the mechanisms underpinning these developmental trends, and how do we explain them? An initial digression may be of help here. In Capital, Marx introduced two main developmental trends regarding capitalist accumulation. The first, elaborated in volumes 1 and 3, was associated with the ‘tendency of the rate of profit to fall’. This resulted from changes in the technical and the ‘organic’ composition of capital (‘live’ and ‘dead’ labour portions moving in the direction of the latter), with the labour market simultaneously shrinking, hence the increase in superfluous population and the industrial reserve army. The second was a trend towards ‘concentration’ and ‘centralization’ of capital, leading to monopoly or what was later known as oligopolies. It was related to the long-term expropriation of all economic agents by an increasingly smaller number of capitalists, beginning with ‘primitive accumulation’ and ending up in revolution and communism. The first thesis gave rise to an endless debate within Marxism and has led, up to now at any rate, to a dead end. The second is basically unanimous in much of the social sciences and political economy, although the consequences Marx linked to it—the final ‘expropriation of the expropriators’ by the ‘expropriated’, the working class—is a much less certain outcome than he had thought, to say the least.36 The mechanism of change in the first case seems to imply overall a blind process, based on unintended consequences. The second rests, on the contrary, on subjectivity—will, desire, reason—, short term in the beginning (primitive accumulation) and far-sighted in the end (proletarian revolution). In a sense, the present argument links up with this second developmental trend identified by Marx. He thought, however, with respect to the first, that there were counter-tendencies at play. This too will be important for our analysis in the next chapter. If administration of colonial possessions—in the Americas or in British Ireland and India, in Dutch Indonesia or wherever else—in the development of bureaucracy in Europe had some influence, we must not exaggerate it. While there were learning processes and, especially in the Indic case, many later instances of ‘governmentality’ of castes (mapping, numbering, disciplining, with formalization through statistics), from the eighteenth century onwards, concrete experience does not amount to the introduction of new principles.37 These emerged directly in the European context,

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responding to national situations of modernization. They sometimes lent new directions and meanings to what was developing in that region before modernizing moves took over, eventually assuming modern characteristics proper. Probably to some extent emulating Marx and dialoguing with Weber, in his main work Elias pointed to the increasing centralization of power in the European feudal period, that is, prior to modernity. Competition and territorial conquest composed the mechanism that propelled this pre-­modern developmental trend, as a sort of primitive or original accumulation of power, which heightened the interdependency between humans and led to internal pacification. This was a process that would not have been really reproduced elsewhere, except in feudal Japan. Other centralized political formations, for instance, China, evolved rather differently, what Elias unconvincingly tries to square in later editions of his book. In what would become Europe, the struggle went on first between rather independent feudal lords, thereafter between rising Absolutist states, stretching well into the beginnings of modernity.38 We have never approached a situation of monopoly, though; it is as if oligopolization has achieved on the other hand a definitive victory. Initially, territorial conquest remained pivotal for interstate relations and power accumulation; after World War II its importance severely declined. The weight of the capitalization of coercion historically must also be recalled: it was the alliance between bourgeoisie and state, assuming ‘national’ forms, that in some part explains why it prevailed over imperial formations, with greater concentration of power.39 These pertain, really, to what I defined in Chap. 3 as generative mechanisms, related to the strengthening of state power and to some extent the enhancement of its capabilities (taxation, managing, moulding, surveillance, coercion and materialization). These, historically, depended very much on that concentration to develop. This was eventually possible once bureaucratization set in as a trend—which, according to Weber, has never subsided. I have rendered it as the ongoing bureaucratic thickening of the state.40 In discussing state developmental trends and mechanisms, we need first of all to recognize that Elias was talking mainly of territorial control and military prowess. It is only then that we can perceive that he dealt with only one aspect of state power, although moulding was somehow a felt concern for him. It was covered by his theory of the ‘civilizing process’, which he did not, because indeed he could not, closely relate to state power, since the channels through which it ran in the European feudal

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past were rather different from what they are today. The state as such was meagre, domination achieved mainly by other means. In a sense Mann was much more concerned with modernity.41 Curiously, he speaks about the increase of state ‘infrastructural power’ in terms of the whole of human history, without precisely elaborating it in relation to what has happened after modernity emerged, when it really takes off. Bourdieu in turn tried to make a case for the state as a site of ‘symbolic power’ whose genesis was related to that feudal dynamic but had more to do with the legal standing and the universalizing discourse of the modern state as well as with the budding professions. In the cases described by Elias, which eventually led to the Absolutist state, original motivations did not underpin what emerged at a later stage; rather, they referred to more immediate attempts at supremacy, what was partly tantamount to survival vis-à-vis rival feudal lords. This carried on into the Absolutist period, with brutal wars between those powerful kings and queens. It is not only modernity and capitalism that evince immanent incontrollable logics: early state formation in feudalism is another example of that, of which Elias was acutely aware. The emulation and struggle which were central to competition and conflict implied further unintended consequences, with the emergence of the modern state and the revolutionary demise or protracted transformation of Absolutism, that is, once political and administrative modernity left behind its generative mechanisms. Other motivations for agents, individual and collective, the search for glory, prestige and wealth, were certainly present in those antagonistic relationships. In any case, they were locked into a dynamic that largely escaped direct control. Eventually, nation building was also crucial for the emergence of state power. Hinze stressed this long ago and Bendix took up the issue in long historically oriented analyses of these processes (in the West and elsewhere).42 A common national identity, deeply shared by most of the population, was not an absolute necessity for state functioning in modernity, as the proliferation of empires evinced. They crumbled, though, whereby historically the nation-state or national state solution prevailed, with the peculiar characteristics we have already discussed in Chap. 3. It allowed for greater centralization at that early stage and for a more homogenous sort of rule and deployment of state capabilities, with capital resources more easily utilized as well. Once we enter modernity, especially since other societal forces, such as classes, come to the fore of social development and statehood changes, why would state power be enhanced and strengthened as well as power

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concentration progress with the state at its core? A new sort of bureaucracy slowly emerged, formally and eventually separated from the means of administration, alongside elected politicians who, in principle, do not have a permanent interest in its reproduction. In the last instance, it is only through officials, elected or not, constituting and being constituted by collective subjectivities, that the state is reproduced and its power augmented, unless we believe that there is somewhere—in heaven or hell, depending on the point of view—a machine rolling, hidden from sight. State agencies, alongside societal agents in many cases, build departments, buy material implements, produce knowledge, devise rules and strategies and implement policies in all areas of social life. Alongside inputs from the societal side of modern life and especially from the societal political system, this is where we find impulses for state change and growth, or diminution. Sometimes it could be said, or so it seems, that bureaucrats and politicians do aim at enhancing the power of the state by developing its capabilities, strengthening its power and centralizing or de-centralizing it, hence keeping it concentrated (or having as a consequence sometimes a diffusion of power across society rather than concentration). In this case the mechanism that reiterates these developmental trends is clear: intentional individual action and collective movement. This is obvious in colonial or post-colonial settings, for instance in Latin America or in the Indic subcontinent, where colonial powers and then local ruling groups following independence—either in the nineteenth or the twentieth centuries— decided to build a modern state in order to mirror or compete with European powers or to erect defences against them. It happens also, again obviously, in relation to the multiplicity of policies pursued by elected and non-elected officials, which aim at making the state capable and strong as the key agent in their implementation. In many other cases, intriguingly, things are less obvious. If nobody seems to aim at either of those outcomes, how do they prevail? How do we get to this obscure yet stringent ‘path dependency’? This is the upshot of intended action and movement whose goals lie elsewhere, not in state power as such. Elected and unelected officials, individually and as ­collectivities, search for their more discrete interests and, in this process, may enhance state power as well strengthen and concentrate it. This might be the result of what such public choice/neoliberal theorists as Tullock have studied with the reasonable supposition that bureaucrats and politicians are just like ordinary people—in point of fact, that is what they

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are!—looking for the ‘best bargain’. Their functional objectives would be basically related to their personal interest in material things, prestige and power, although they may take an interest in the programmes they are supposed to implement, whereas their own interest may not necessarily contradict the public good. But their decisions, Tullock added, would be in the last instance dependent upon the benefits they generate to their own lives (i.e. when they ‘improve’ the ‘utility’ of state officials). This would mean that if the state grows it opens more jobs, salaries get fatter, promotions are more likely, working conditions become nicer, offices more beautiful, especially when they get promoted, discretionary budgets may become thicker, their power over other people increases, and so do their reputation and public respect. Of course, the reasoning goes on, this would mean that they have to work more: many people are just lazy and live on ‘shirking’. Obviously, this is not necessarily the case, and there seems to be no empirical evidence to support this hypothesis, even in the US, and even less so elsewhere. At the same time, the conceptual premises of the argument (lack of control of parliament and even bureaucrat’s interests) have been discarded by other authors.43 We might in any case conclude from this line of reasoning that the result of such apparently prosaic activities would be the overall increase of state power, in all those dimensions we have been analysing. This could be expanded to all areas of more specialized expertise (related or not to social policy), beyond more limited and generic bureaucratic elements—including the police and the military—that answer for the state’s more traditional administrative tasks. This might also engender excessive centralization, hence the de-concentration of power, a phenomenon that seems to be partly the concern of what we have already introduced, in Chap. 2, as the ‘New Public Management’ (NPM) strategy, with its neoliberal and post-Fordist flavours and ethos. The workings of these contingent, individual and collective, modernizing moves—and their unintended consequences—would thus be an explanation to much of the apparently automatic logic of state power development. At least it would sound better than an abstract and unspecified ‘will to power’ (though human beings are likely to feel like affirming themselves in variable degree), reverberating NietzschianFoucaultian approaches. In order to remain plausible, the utilitarian and rational-choice components ingrained in this partial explanation have to be critically addressed. Do they pass the test? This is, all in all, a very ideological device: it denies any actual role for solidarity and common values. These are dismissed

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lightly as prejudices of older forms of political philosophy in what regards the state. We can accept that this sort of selfish interest is strong in human beings and collectivities, especially in the world we live in (though without creating excessive expectations of how this could be different once life changes). Nonetheless, this represents only part of the motivations real people display in their daily lives and life projects even in the present situation of shared selfishness. Finally, methodologically we do not always need to reach out to these motivations: it is enough to bear in mind actual behaviour, such as noted above, and outcomes of interactions in state administrative settings, if and when outcomes as those described by this sort of theorist seem to take place in real bureaucratic settings. Another explanation, resuming public choice ideas, tried to go further, implying two different possibilities, in which pecuniary rewards are, all in all, intrinsically limited. First, that which, from a ‘supply-side’ view modelled after the neoclassical ‘firm’ and its ‘utility’ (profit, in plain talk), Niskanen proposed: ‘budget-maximization’. Thereby bureaucrats push forward their interests, leading to ‘oversupply’ (a thesis that can be conceptually questioned in a number of counts, to start with why high officials would bother to assume a greater load of work in overstaffed and problematic environments). Taking stock of friendly criticisms, Niskanen soon embraced ‘discretionary budgets’ rather than ‘total budgets’—where output is a more serious issue—as the measure of bureaucrats’ ‘utility’. His views partly inspired the public choice and neoliberal ideas listed above. Second, what Dunleavy called ‘bureau-shaping strategies’, according to which it is better for top officials to have slim machines, within selective settings, with great prestige and less pressure, not necessarily need higher budgets (something, that said, not to be discarded offhand, against what he is prone to do). Nor is this second move inimical to privatization, outsourcing, de-institutionalization and changes in the design and weights within the state apparatuses (though lower-class clients of state services may suffer the brunt of alterations, provided bureaucrats and more well-­ placed clients are shielded).44 Power sharing comes forward here. It may strengthen the power of the state, even if it somewhat shrinks. That is, beyond the doubtful theses of public choice theories, no damage is done to the idea of state strengthening, such as proposed in this chapter, as a developmental trend. Two factors should be added to this, as part of the reiterative mechanisms that keep those developmental trends unfolding, alongside the aforementioned intentional steps taken by bureaucrats and politicians.

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First, the desire of bureaucrats to stick to what Weber had formerly defined as their codes of honour and sense of public mission, without passion or hatred.45 State power might grow, therefore, due to more immediate ­individual actions and collective moves, including those aimed at growth of departments and the like, yet in order that specific policies are implemented, not due to selfish ‘utility’ calculations. This is surely a more optimistic view of the issue—actually more realist, according to observed behaviour and theoretical assumptions—,  which public choice theorists are often prone to berate. State employees and politicians just too often mind their own business, but in many cases their motivations stem from the idea that the state has to offer services and organize society, protect it and watch on it, repress and kill, further social development and guarantee rights. It may happen that this is very oppressive, underpinning domination, but these moves may be, on the contrary, fraught with emancipatory elements. Note that Downs did picture self-interest and ‘utilities’ as intrinsic to bureaucrats’ behaviour—again, as anybody else’s, some of them would be merely self-interested (‘climbers’ and ‘conservers’). In contrast, he also pointed to motivations of a segment of bureaucrats as either based on commitment to specific programmes of their like and interest (‘zealots’ or ‘advocates’, the latter with a larger view) or really altruistic and geared towards the common good, that is, programmes offered by the state’s distinct bureaus46 (‘statesmen’, he calls such bureaucrats). We cannot assume, across the board, that all areas of state activity will witness the same push by bureaucrats, and in the same proportion, to increase their power somehow, including large budgets. Some of them, on the contrary, are ‘conservers’ regarding their ‘utility’, in Downs’ definition, who cannot be bothered with such things. This is quite plausible and certainly happens in some areas. Many other areas linked to several services and expertise may be, at different moments, however actively involved in this kind of build-up (budgetary, of personnel, of capabilities, etc.), for distinct reasons, with disparate goals and according to opposite values. So much for the so-called supply-side. As important is what might be called the ‘demand-side’, from society to the state, as well as more general views that help to carve it. We must thus take account of the claims and eventual needs, such as partly interpreted and shaped by the state, that arise in the societal side of the modern divide and even in its multifaceted state side. They are all somehow or another dependent upon mediators, directly in the political systems or through the other channels discussed in Chap. 4, with pushes

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within the state (with inputs rather than outputs being demanded therein). We have already dwelt on demands in what concerns rights, especially social rights, in Chap. 3. As the state expands its areas of knowledge and intervention, either directly or through regulation, not only are such demands multiplied, it is from outside bureaucracy, or from one branch of it towards the other, that the enhancement of state power, its strengthening and the concentration of power therein, are propelled (with power being shared at a point with organizations linked to the popular classes). Weber himself noted that democracy, with its mounting social demands, engenders bureaucracy, although its consequences, he surprisingly added, depend on which political direction would be taken. This had been true in the western or, for instance, in order to change the standpoint, in the Indian context.47 We may think, therefore, that state strengthening may enhance freedom yet, frequently, the opposite may happen too, insofar as it is actually a response not to the demands of society, consisting instead in a means of trying to control and subordinate it. It would then run counter, not in favour of citizenship, as an oppressive answer also to the free play of individuals and collectivities that organize, struggle and put forward demands of whatever type, usually related to freedom and within the mould of law and rights, notwithstanding occasional deviance or push beyond this framework. This would then be a pernicious answer to what we will examine in the next chapter. Keynesianism and the Welfare State in the centre, like developmentalism in the periphery and the semi-periphery, were obvious instances of mostly benign aspects of such process. They produced ‘aggregate demand’ (deemed necessary against cyclical economic crises, through the supply of services, infrastructure, etc., thereby generating labour and consumption), development (heavy industry, infrastructure, science and technology) and welfare (responding to claims and ‘needs’, such as filtered by political mediators and the state apparatuses). However, alongside the permanence of economic and social policies (including those aimed at regulation and at correcting so-called externalities, market failures and the effects of ­natural monopolies), other domains have become crucial for the development of the present, third phase of modernity. In this case, the decentring of the state as a collective subjectivity and its increased intertwinement with the societal side of the divide, implying de-centralization, is what allows for the continuing concentration of power in its own apparatus. Understandably, the desire not to engage permanently and tiresomely in emotional exchange and have basic universal rules applied to oneself,

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rather than haphazardly and perhaps with some pushing and shoving, is an element legitimizing and justifying bureaucratization in daily life. This desire does not take account of, or is aloof to, perverse cumulative, unintended effects, which tend to structure social life as a whole and may lend it sometimes nightmarish contours.48 In the end, there are much more malignant features of state strengthening which are expressed in managing, moulding, surveillance, coercion and materialization as a top-down and oppressive answer to societal developments, even though managing and moulding can be softer modes of dealing with such issues. These specific actions and moves are encircled by more general conceptions of the role of the state and of its relation to society. Insofar as it is attributed to the state a larger part in organizing social life, the tendency is that, across different ‘ideologies’, it will eventually assume a specific configuration, as we saw in the second, organized phase of modernity. If a more general view, usually linked to liberalism, affirms its problematic nature when it crosses what would be its useful borders, another configuration is ushered in, as we have seen in the first and now, with strong variations, in the third phase of modernity.49 In this regard, we are within a demand-side perspective, but in a more metaphorical way, since it is general visions that end up structuring the state and its intervention in society that which is at stake. If moves within the state are crucial as mechanisms that propel the developmental trends related to state power, the societal side of the equation must not be overlooked, with those general conceptions cutting across both of them. Demands posed at different levels—whether through the political system or more directly in connection with bureaucratic bodies—surely contribute to enhance capabilities and strengthen different sectors of the state. This is particularly strong when there is a real synergy between both sides of the state-society divide. Then moves by state officials, elected or unelected, find mightier underpinnings than is often the case when they happen in isolation. This is far from absolute, though, and state bureaucratic bodies, supported or not by politicians, may, thanks to particular reasons, imaginary impulses and peculiar institutional arrangements, be able to pull themselves up counting mainly on their own muscles. Admittedly, power sharing with society and the implementation of a dialectic of control, in these more minute processes, helps those bureaucratic bodies, and above all political agents, move in the direction of enhancing state capabilities and strengthening it, through some sort of implicit or explicit, close-knit or loose partnership. The success of any of these operations depends also to a large extent on how those conceptions support or are against them, in society as well as within the state.

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5.5   Rationality and Utilitarian Expediency We discussed Castoriadis’ concept of the imaginary in relation to emancipation (rights, law, citizenship). We must return to it now, since another core element of modernity—rationality or rationalization—comes up here. Starting with Weber, an array of authors, from Horkheimer and Adorno to Foucault and Habermas, magnified its importance. The increasingly more adequate articulation of ends and means has characterized the concept as instrumental rationality, paired up in different and sometimes obscure ways with formalization. This implies impersonality, hence a smoother functioning of organizations, which need not spend energy in more personal and contingent, potentially disruptive interactions. This entails, as already mentioned, the expenditure of less energy, although personal and informal interactions continue as of great importance for the functioning of organizations. The manipulation of nature and society is at stake, with specific epistemological operations connected to the history of the West, initially, afterwards generalized globally, although Castoriadis suggested that this sort of rationality was at best in considerable measure illusory.50 This seems hardly to be the case. In any event it remains central for the modern imaginary, which seems more amenable to an ­objectification of nature and society, often in an exclusive manner and as justifying much of what would be, taking into account other elements to be examined later, unjustifiable. Domination, oppression, exploitation and discrimination result from it. This must be understood according to the requirements of rational utilitarian expediency, both as to particular demands and general conceptions. Thereby the state would and should be capable of doing, in all possible spheres, what it is supposed to do, instrumentally, without detriment to the importance of law—its rule and rationality in connection to rights—, at least insofar as it does not excessively impede the workings of the state, especially of executive power, when state security becomes more important. The pursuit of rationality feeds into, anyhow, developmental trends related to the increase in state power, since all capabilities can be rationalized as much as possible and the proper balance within shared power and optimal centralization be stricken. While the feudal dynamic described and theorized by Elias rested on religious and dynastic elements for legitimation, modern legitimation of administration rests on rationality—formerly simply ‘reason’, with a usually more substantive basis. Within bureaucratic systems it is generally combined with meritocratic perspectives in terms of the advancement of

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officials who are trained and particularly suited to move up the hierarchical chain typical of these distinctive forms of ‘rational’ administration, which work also in denying and masking how ordinary citizens rarely achieve high bureaucratic functions. It underlies the ‘aristocratic’ spirit of electoral processes too, as if the best citizens should be elected, their legitimation partly stemming from this imaginary element.51 Unintended consequences of action and movement keep us hostage to the developmental logic of state power.52 It has very concrete effects, for rationalization as to ends and means as well as formalization impact competition and struggle in social life as much today as in feudal times. So does our imaginary universe, with symbols weighing heavily on the definition of our horizons and contributing to confine us into that developmental logic, with other solutions becoming foggy and undeveloped, for untried, as if we had reached the zenith of our evolutionary possibilities or did not know of anything better to put in place. Bureaucratic rationalization reigns supreme, regardless of market-oriented attempts to substitute one type of reification for the other. It is true that, contrary to pristine liberal suppositions, state power is not of itself necessarily negative and inimical to freedom. As I asserted already in Chap. 3, it may actually enhance it, depending on which areas and how state power augments, especially if rights are enlarged. Once the ‘dialectic of control’ is restricted and the state pushes to subordinate society and citizens even further than these asymmetrical relations intrinsically implies, this becomes a potentially negative utopia, a dystopia indeed, as a problem which as such permeates the relations of domination and hierarchies between state and society. This is compounded by the existence of two divergent logics such as modernity has been developing, which have been progressively clashing with each other. One of them occupied us in this chapter; it is about time the other is examined.

Notes 1. David Harvey, A Brief History of Neoliberalism (Oxford: Oxford University Press, 2005). 2. Jürgen Habermas, Theorie des kommunikativen Handelns (Frankfurt am Main: Suhrkamp, [1981] 1988), especially vol. 2, in its concluding reflections. 3. See, for the modern state’s decisive initial global push, Christopher A. Bayly, The Birth of Modern World, 1780–1914 (Malden, MA and Oxford: Blackwell, 2004), chaps. 7, 13.

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4. Sudipta Kaviraj, ‘A state of contradictions: the post-colonial state in India’ (2003), in The Imaginary Institution of India (New York: Columbia University Press, 2010), pp. 210–11. 5. Leon Trotsky, History of the Russian Revolution, vol. 1 (London: Sphere Books, [1932–1933] 1967), chap. 1. He called this ‘uneven and combined development’. 6. Anthony Giddens, The Nation-State and Violence (Cambridge: Polity, 1985), pp. 120, 172. 7. Already noted by Georg Jellinek, Allgemeine Staatslehre (Berlin: O. Häring, [1900] 1914), chap. 8. He attributed this—likewise overall state growth— to an ill-defined social demand of efficiency and solidarity. 8. Hans Kelsen, Reine Rechtslehre. Einführung in der rechtswissenschaftliche Problematik (Stuttgart: Franz Steiner, [1945] 2009), §34-f, pp.  212ff, §34 h, pp. 221ff, § 5.35.k, p. 282. 9. Max Weber, Wirtschaft und Gesellschaft. Grundriβ der verstehenden Soziologie (Tübingen: J.  C. B Mohr [Paul Siebeck], [1921–22] 1980), pp.  656ff; Franz Oppenheimer, The State: Its History and Development (New York: B. W. Huebsch, [1909, 1914], 1923), pp. 248–50, 267–71; Shmuel N. Eisenstadt, The Political System of Empires (New Brunswick, NJ: Transaction, [1963, 1993] 2010), pp. 27, 30, 91ff. 10. Francis Fukuyama, Political Order and Political Decay: From the Industrial Revolution to the Globalization of Democracy (New York: Farrar, Straus and Giroux, 2014), p.  468; Keneth Scheve and David Stasavage, Taxing the Rich: A History of Fiscal Fairness in the United States and Europe (Princeton, NJ: Princeton University Press and Russell Sage Foundation, 2016). For a somewhat different assessment, see Wolfgang Streek, ‘A new regime. The consolidation state’, in Desmond King and Patrick Le Gales (eds), Reconfiguring European States in Crisis (Oxford: Oxford University Press, 2017). An overview and a thorough analytical discussion of ‘fiscal sociology’, as well as of recent developments, is found in Lars Döpking, ‘Fiskalregime – eine andere Geschichte des modernen Staates’, Mittelweg, vol. 36 (2018). 11. Fritz Karl Mann, ‘The sociology of taxation’, Review of Politics, vol. 5 (1943). 12. S.  Kaviraj, ‘On the construction of colonial power: structure, discourse, hegemony’ (1994), in op. cit. 13. A. Giddens, Consequences of Modernity (Cambridge: Polity, 1990), passim. This does not imply at all an arbitrary view of knowledge, as we could infer from some sort of reading of Foucault’s work. This would after all entail a performative contradiction, if at the same time someone took his views as representing some kind of truth. But, if not that, then what would that

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mean? The degree of scientificity of knowledge must not be taken as homogenous. 14. Pierre Bourdieu, ‘Les modes de domination’, Actes de la recherche en sciences sociales, vol. 2 (1976). This was one of his lifelong concerns. 15. Walter Benjamin, ‘Zur Kritik der Gewalt’ (1920/1921), in Zur Kritik der Gewalt und andere Aufsätze (Frankfurt am Main: Suhrkamp, 1965). 16. Eugen Weber, Peasants into Frenchmen: The Modernization of Rural France, 1870–1914 (Stanford, CA: Stanford University Press, 1976); Wolfgang Knöbl, ‘State Building in Europe and the Americas in the Long Nineteenth Century: some preliminary considerations’, in Miguel A.  Centeno and Agustin E.  Ferraro (eds), State and Nation Making in Latin America and Spain: Republics of the Possible (Cambridge: Cambridge University Press, 2013). 17. Michel Foucault, Surveiller et punir. Naissance de la prison (Paris: Gallimard, 1975); Idem,  Naissance de la biopolitique. Cours au Collège de France, 1977–1978 (Paris: Gallimard/Seuil, 2004); Idem, Histoire de la sexualité, vol. 1. La volonté de savoir (Paris: Gallimard, 1976), pp. 177–91; Idem, Sécurité, territoire, population. Cours au Collège de France, 1977–1978 (Paris: Gallimard/Seuil, 2009); Idem, ‘Michel Foucault. Les réponses du philosophe’ (1975), p.  1680; ‘Entretien avec Michel Foucault’ (1977), p. 151; ‘La société disciplinaire en crise’ (1978), p. 533; ‘Pierre Boulez, l’écran traversé’ (1982), p. 1060, where he speaks as if the state were as to power the, although not exclusive, ‘most important’ instance. The first piece is in vol. 1, all others in vol. 2, of Dits et écrits (Paris: Gallimard, [1994] 2001). The concept of ‘governmentality’ and its attendant pair (‘biopolitics’) varied, initially referring only to the general administration of populations (size, health, reproductive habits), later on being more directly related to ‘discipline’ through the concept of ‘norm’. 18. A.  Giddens, op. cit., chaps. 2, 7, 11; The Consequences of Modernity (Cambridge: Polity, 1990), pp.  57–58, 62–63; Michael Mann, ‘The autonomous power of the state: its origins, mechanisms and results’, European Journal of Sociology, vol. 25 (1984); Idem, The Sources of Social Power, vol. 1. A History of Power from the Beginning to A.D. 1760 (Cambridge: Cambridge University Press, 1986), chap. 1; vol. 2. The Rise of Classes and Nation-States, 1760–1914 (Cambridge: Cambridge University Press, 1993). 19. Antonio Gramsci, Quaderni del carcere (Turin: Einaudi, [1929–35] 2001), passim, especially ‘Americanismo e fordismo’ (1934), in vol. 3; Louis Althusser, ‘Ideologie et appareils idéologiques d’État (Notes pour une recherche)’ (1970), in Positions (1964–1975) (Paris: Les Editions Sociales, 1976).

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20. Peter Wagner, A Sociology of Modernity: Liberty and Discipline (New York and London: Routledge, 1994). I have drawn upon his views, though modifying them, for my periodization of modernity’s three phases. 21. Bob Jessop, The Future of the Capitalist State (Cambridge: Polity, 2002), pp. 168–71, 193–204; Paul Pierson, ‘The rise and reconfiguration of activist government’, in P.  Pierson and T.  Skocpol (eds), The Transformation of American Politics (Princeton, NJ: Princeton University Press, 2007); Gilles Deleuze, ‘Post-scriptum sur les sociétés de contrôle’ (1990), in Pourparler, 1972–1990 (Paris: Minuit, 1990); Nikolas Rose, Powers of Freedom: Reframing Political Thought (Cambridge: Cambridge University Press, 1999). 22. See David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: The University of Chicago Press, 2001). 23. Among his books on the topic, Peter D. Scott, The Road to 9/11: Wealth, Empire, and the Truth of America (Berkeley and Los Angeles: University of California Press, 2007), pp.  3–12, 267–71; Eric Wilson (ed.), The Dual Parapolitics, Carl Schmitt and the National Security Complex (Surrey and Burlington, VT: Ashgate, 2012); Patricia Putschert, Katrim Meyer and Yves Winter (eds), Gouvernamentalität und Sicherheit. Zeitdiagnostische Beiträge im Anschulusse an Foucault (Bielefeld: transcript, 2008); Stefan Huster and Karsten Rudolf (eds), Vom Rechtssaat zum Präventionsstaat (Frankfurt am Main: Suhrkamp, 2008). Foucault discussed this especially in his Sécurité, territoire, population. The paradigmatic, overwhelming example of contemporary surveillance is of course the programmes of the United States’ National Security Agency (NSA). See David P. Fidler (ed.), The Snowden Reader (Bloomington and Indiana, IN: Indiana University Press, 2015). 24. John Austin, The Province of Jurisprudence Determined (Cambridge: Cambridge University Press, [1832, 1861, 1885] 1995), Lecture VI, pp. 224–25ff; Carl Schmitt, Politische Theologie. Vier Kapitel zur Lehre von der Souveränität (Berlin: Duncker & Humblot [1922] 2009); Idem, Der Begriff des Politischen (Berlin: Duncker & Humblot [1932] 2009). 25. Hans J. Morgenthau, ‘The corruption of patriotism’ (1955), in Politics in the Twentieth Century, vol. 1. The Decline of Democratic Politics (Chicago: The University of Chicago Press, 1962). 26. A rare acknowledgement of the problem is found, despite his arguable overall rendering of the relation between public and private, in Norberto Bobbio, ‘La grande dicotomia: publico/privato’ (1981), in Stato, governo, societa. Per una teoria generale della politica (Turn: Einaudi, [1980] 1985), pp. 18–22. 27. B.  Guy Peters, The Politics of Bureaucracy (New York and London: Routledge, [1995] 2010), chap. 1.

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28. I am here, therefore, at variance with Weber’s (op. cit., p. 566) thesis about the increasing centralization (in his own words ‘concentration’) of the means of administration in the hands of rulers: they may be dispersed across society and still, or rather because of that, state power has more societal impact. I do not think either that, especially in this third phase of modernity, though this is indeed in a sense an era of ‘total bureaucratization’, we can simply speak of bureaucracy, public and private, as ‘knit together in a single, self-sustaining web’, contrary to David Graeber, The Utopia of Rules: on Technology, Stupidity, and the Secret Joys of Bureaucracy (New York: Melville House, [2015] 2016), pp. 18, 42. Besides, it is obviously not simply liberalism, as he argues (p. 9), instead a more complex process—in which the state largely follows its own logic—that brings about bureaucratization, as I have tried to show here. 29. Mann, ‘The autonomous power of the state: its origins, mechanisms and results’; The Sources of Social Power, vols 1–2; P. Bourdieu, Sur l’Etat. Cours au Collège de France 1989–1992 (Paris: Raison d’Agir and Seuil, 2012), pp. 14, 209. 30. Interesting though sometimes forced suggestions, in the context of a discussion of power games, surface in Talcott Parsons, ‘On the concept of political power’ (1963), in Sociological Theory and Modern Society (New York: Free Press, 1967). Enthralled by analogies with economics, he spoke of ‘inflationary’ and ‘deflationary’ movements of power (too many commitments and the incapacity to honour them, respectively). 31. Manuel Castells, Communication Power (Oxford: Oxford University Press, 2013), pp. 45ff, 203. 32. Samuel P. Huntington, Political Order in Changing Societies (New Haven, CT: Yale University Press, [1968] 2006), pp.  145–46. See also Charles Tilly, Coercion, Capital and European States, ad 990–1992 (Oxford: Blackwell, [1990] 1992), p. 28. 33. Giddens, The Nation-State and Violence, pp. 10–11, 201–02. 34. Jessop, op. cit.; M.  Castells, The Power of Identity: The Information Age: Economy, Society and Culture, vol. 2 (Malden, MA and Oxford: Blackwell, [1997] 2004), chap. 5; Wolfgang Streek, Gekaufte Zeit. Die Vertagte Krise des demokratischen Kapitalismus (Frankfurt am Main: Suhrkamp, 2013). 35. Saskia Sassen, Territory, Authority, Rights: from Medieval to Global Assemblages (Princeton, NJ: Princeton University Press, [2001] 2006), p.  17. While some speak of a ‘state of exception’ in this regard, even authors who reject this view are aware of the diminished democratic character of contemporary states. See, respectively, Giorgio Agamben, Stato di eccezione (Turin: Bollati Boringhieri, 2003); Pierre Rosanvallon, Le bon gouvernement (Paris: Seuil, 2015).

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36. Karl Marx, Das Kapital. Kritik der politischen Ökonomie, vol. 1 (1867, 1873), in K.  Marx and Friedrich Engels, Werke, vol. 23 (Berlin: Dietz, [1867, 1873] 1962), chaps. 23–24; vol. 3 (1894), in K. Marx and F. Engels, Werke, vol. 25 (Berlin: Dietz, [1894] 1964), chaps. 13–15. The ensuing debates were summarized by Paul Sweezy, The Theory of Capitalist Development (London: Dennis Dobson, 1946) and Michael Heinrich, Die Wissenschaft vom Wert. Die Marxsche Kritik des politischen Ökonomie zwischen wissenschaftlicher Revolution und klassischen Tradition (Münster: Westfalisches Dampfboot, [1999] 2014). More generally, see José Maurício Domingues, ‘Critical social theory and developmental-trends, emancipation and late communism’ (2016), in Emancipation and History: The Return of Social Theory (Leiden: Brill, 2017 and Chicago: Haymarket, 2018). 37. For an account of the process in South Asia, see Kaviraj, ‘On the construction of colonial power: structure, discourse, hegemony’. 38. Norbert Elias, The Civilizing Process (Malden, MA and Oxford: Blackwell, [1939] 2000), pp. xi, 260–61, 269, 304–05, 369, 379. In later works, he tried to come to grips with twentieth-century wars, which posed insurmountable problems for his theory of pacification and the ‘control of instincts’ associated to it. Idem, Studien über die Deutsche. Machtkämpfe und Habitusentwicklung in 19. und 20. Jahrhundert (Frankfurt am Main: Suhrkamp, [1989] 1992). 39. Tilly, op. cit., pp.  30–31, 99, 159–60, 188ff. See also Giddens, NationState and Violence, pp. 15–16, 95–96, 113–15, for the ‘centralization’ and ‘concentration’ of ‘administrative resources’ in the state. 40. Weber, op. cit., p. 128. 41. Mann, ‘The autonomous power of the state: its origins, mechanisms and results’; The Sources of Social Power, vol. 2, p. 738. 42. Otto Hinze, ‘Staatenbildung und Verfassungsentwicklung. Ein historischepolitische Studie’ (1902), in Staat und Verfassungsgeschichte (Göttingen: Vandenhoeck & Puprecht, 1970). Social unification under an increasingly centralized and expanded territorial state, with eventually constitutional demands, was at the core of his argument. He was probably the main forerunner of all the authors analysed in this chapter. See, further, Reinhard Bendix, Nation-Building and Citizenship: Studies of our Changing Social Order (New Brunswick, NJ: Transaction, [1977] 2007); Idem, Kings or People: Power and the Mandate to Rule (Berkeley and Los Angeles, CA: University of California Press, 1978). 43. Gordon Tullock, ‘An essay in the economy of politics’ (1976) and ‘Democracy as it really is’ (1994), in The Economics of Politics (Indianapolis, IN: Liberty Fund, 2005); Idem, Rent Seeking (Aldershot: Edward Elgar, 1993), pp. 51–59. For him, moreover, because they are, albeit a minority, a sizeable one, well informed and politically connected, civil servants have

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a disproportionate influence in politics, being capable of strong rent-­ seeking (for themselves and for others, often in collusion with politicians). He goes as far as to suggest to deprive them of voting rights, demonstrating his, at best, mild (Benthamite) support for liberal democracy. For a sharp critique, see Peters, op. cit., pp. 13–15. 44. William A. Niskanen, Jr., Bureaucracy and Representative Government (Chicago: Aldine, [1971] 2007), pp. 39–45; Idem, ‘Bureaucracy: a final perspective’ (2001), in Reflections of a Political Economist: Selected Articles on Government Policies and Political Process (Washington, DC: Cato Institute, 2008); Patrick Dunleavy, Democracy, Bureaucracy and Public Choice: Economic Explanations in Political Science (New York and London: Harvester Wheatsheaf, 1991), chaps. 6–8. 45. M. Weber, op. cit., pp. 129–30. 46. Anthony Downs, Inside Bureaucracy (Boston: Little Brown & Co., 1965), pp. 32ff, 84–89, 253ff. Actually, the same issue of dedication to the public interest through expertise is found even in Niskanen’s (op. cit., p. 39) ‘budget maximization’ thesis as part of the bureaucrats’ ‘utility’. 47. M. Weber, op. cit., pp. 568–69; Peters, op. cit., chap. 1 and passim; Kaviraj, ‘A state of contradictions: the post-colonial state in India’, p. 230. 48. Graeber, op. cit., chap. 3. 49. Harvey, op. cit.; Wagner, op. cit. 50. Cornelius Castoriadis, L’Institution imaginaire de la société (Paris: Seuil, 1975), pp. 234–40. For those authors, see M. Weber, op. cit., Part 1, chap. 1, for Zweckrationalität; Theodor Adorno and Max Horkheimer, Dialektik der Aufklärung (Frankfurt am Main: Suhrkamp, [1944] 1984); Habermas, op. cit., vol. 2, chap. 6 and pp. 453–65. Consult also Foucault’s books cited in former notes above. 51. P. Bourdieu, La Noblesse d’Etat. Grandes escoles et sprit de corps (Paris: Minuit, 1989), pp. 435–39ff; Bernard Manin, Principles du gouvernement représentatif (Paris: Flammarion, [1995] 1996); Yves Cohen, Le Siècle des chefs. Une histoire transnacionale du commandement et de l’autorité (1890–1940) (Paris: Amsterdam, 2013). Not by chance did the Athenians prefer, under democratic isonomy, the lot rather than elections to fill most public offices. 52. Weber did not offer a proper explanation—falling short of identifying mechanisms—for the process of rationalization underwent by the West, especially in the case in point, continuous bureaucratization, except in very general terms and within a plain descriptive account, that is to say, a historical narrative. It is as though a quasi-systemic, automatic logic, prevailed, which is quite an insufficient manner of speaking about unintended consequences of action. M. Weber, Die Wirtschaftsethik der Weltreligionen. Die Protestantischen Ethik und der Geist der Kapitalismus. Gesalmmelte Aufsätze zur Religionssoziologie, vol. 1 (Tübingen: J.  C. B.  Mohr [Paul Siebeck], [1904] 1988), pp. 198ff; Wirtschaft und Gesellschaft, p. 1ff.

CHAPTER 6

The Developmental Dynamics of Citizenship and Autonomy

6.1   Hierarchy, Inequality, Autonomy Before human groups settled, in the course of the Neolithic revolution, with agriculture engaging many people and eventually the growth of cities, once some sort of individual or collective demands pre-eminence and hierarchical relations threatened to set in, those who were dissatisfied would usually just move away. Some sort of egalitarianism, except usually between genders, was retained. Once humans were ‘caged’, to make use of Mann’s expression, by state powers, prisoners of their rooted agricultural and urban lifestyles, things became more difficult: those who had weapons and were trained to use them could force those who did not to submit, although differentials in power and wealth seem to have emerged initially with religiously oriented urban settlements.1 Actual autonomy, not so much individual as collective, was certainly rather significant originally, declining as hierarchy and inequality mounted. Modernity took these evolutionary trends further and, at the same time, altered them. Hierarchical relations and inequality in modernity are extremely strong, with the additional problem that—particularly in what regards political power—this civilization is deficient in justifications that can buttress them. Yet they exist and, as of today, have been growing in several areas, as observed with respect to the development of state power in the foregoing chapter, in which they are flagrant. The general liberal infrastructure and especially the system of rights cover for the emergence of inequalities to which they are not inimical, on the contrary to some extent, as to property, © The Author(s) 2019 J. M. Domingues, Critical Theory and Political Modernity, https://doi.org/10.1007/978-3-030-02001-9_6

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especially in economic relations, and the formation of ruling political collectivities. However, the reinforcement of hierarchy and inequality has not gone unchallenged: if there is, especially, a trend towards the strengthening of state power, a countertrend is concurrently under way, related to individual autonomization. This takes place within and maybe will expand beyond the bounds of citizenship, although we do not know which mutations it may suffer as they are challenged. Castoriadis was partly aware of that, regrettably bereft of a developmental perspective and account taken of the somewhat unstable conceptual solution he found for the issue, culminating in his ‘project of autonomy’.2 The processes theoretically charted in this chapter deal precisely with this. They have a global reach. Initially operative only in the West, they have for a long time now spanned the whole planet and often hybridized with other civilizational elements, with the emancipatory tenets of modernity weighing predominantly in the resultant. The state was in global swing in the nineteenth century, citizenship and related modern imaginary and institutional elements gathered further strength in the twentieth century. They were at once radicalized as well as prospectively superseded in ‘real socialism’, which pledged to go beyond political modernity, eventually meeting its sad fate, even if still extant in some areas of the globe (its survival having to do mostly with national revolutions than with socialism). As we are here focusing on modernity, it is precisely the developments that have been taking place in this civilization that we shall be considering in what follows.3 They include, without exclusivity, what ­surfaced in the 2010s with a myriad of distinct mobilizations across the world, from the so-called Arab Spring to the 2013 Brazilian astonishingly massive street demonstrations, replicated by other, including European, mass political mobilizations.4 The would-be sovereign has been wide awaken. In these highly charged movements, both citizenship demands and a thinly veiled malaise with its limits cropped up, features we can spot in more circumscribed and even daily aspects of contemporary life. This developmental process is inevitably connected to the modern state (citizenship and its predicament in particular) yet we must keep their logics unambiguously distinct. As observed at the beginning of the foregoing chapter, this constitutes a countertrend vis-à-vis the strengthening of the state, even if seemingly with less momentum, at least at present.

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6.2   Autonomy and Freedom We saw, in Part I, that citizenship, resting on rights, initially with abstract features and defined through law, established a particular bond between individuals and guaranteed, within a liberal framework, their mutual freedom. It lies at the heart of the modern imaginary. The state plays a fundamental role in this, as a body that enforces law, whereby it contributes directly to that mediation and assumes itself a legal personality. Concreteness slowly seeped through, yet those fundamental abstract elements remained. Historically, however, citizenship emerged in considerable measure, practically and imaginarily, as a barrier, through legal statutes, against the power the state could exercise over individuals, without detriment to the mediation it was supposed to supply. Accordingly, a private sphere and private law were a quintessential outcome of this process. The centralization and concentration of power in the Absolutist state greatly strengthened in relation to what European societies had ever known before, and the piecemeal enhancement of state capabilities were counteracted by new ways of thinking about the relation between state and society. Initially, citizenship and limits to state power were indeed a bourgeois demand in some parts of Europe, linked to the defence of life and property and against arbitrariness by so-called absolute sovereigns. In other parts of Europe, such as Italy, it had deeper roots in popular participation and banked on republican traditions. Liberalism and republicanism were at the core of this twofold historical development, which conceptually harked back to the classical, Greek-Roman heritage (Sparta rather than Athens figuring prominently in the first). Eventually, there was a confluence of these transformed strands, under the outright hegemony of the former. Citizenship then became what we know today as the basic means whereby modern individuals can, or may try to, regulate state power and require the provision of services from it, sometimes in a twofold and sort of contradictory mode of coping with that mammoth power container.5 The notion of the individual is not an exclusively modern one. It relates, moreover, whatever the civilizational setting, to how each human being is seen vis-à-vis other human and natural beings, vis-à-vis social life, nature and the cosmos, regardless of how this is phrased. The traditional anthropological literature was partly dedicated to this. Suffice it here to recall Weber’s studies about the paths open to salvation in different ‘world religions’, whether engagement with the world or flight from it characterize the different paths and conceptions, ascetic or adaptive, taken by individu-

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als, alongside a relation between individual trajectory and social and cosmic order.6 Modernity has given new answers to these old human existential issues. Although they do not at all exhaust the question, autonomy and freedom permeate the new imaginary significations of the individual and its relations to society, containing a crucial collective dimension.7 These two notions, in their centrality in the modern imaginary, evince a flagrant magmatic character. They have assumed several significations since modernity emerged and overlap, in any case always around the capacity for unimpeded self-rule. In what follows, I propose a more clear-cut definition of each of them in order to further the analytical purposes of this chapter, which banks, all things considered, on at least some phrasings we find in philosophical accounts. Autonomy refers to our capacity to choose and decide about our destinies, individually and collectively (giving ourselves, some would say, our own law). It corresponds to self-determination. In this regard, it must be conceptualized as distinct from freedom, but their connection is strong. To be autonomous, we have to be socially free, whatever other elements internal to each one’s personality and psychic life it may require, which also depend on how our social relations are structured and our self-esteem secured. We need to have the power necessary to take individually the paths we may choose as well as unimpededly decide collectively about our common issues. This involves our relations with other individuals and collectivities, in principle on an even basis, enjoying equivalent power, therefore premised on equal freedom. In modernity, this has been crystalized through the rights-holder’s position and the citizenship form, including the common status that, especially social citizenship, tried to yield, furthering individual and collective freedom and autonomy. Neither the state nor other individuals and collectivities can trespass the immunity limits set around each of us in our free-position. Neither the state nor any other external power should be capable of preventing us from deciding what we, as collectivities, settle for. Of course, if equal power applies only to civil and political rights, our autonomy can hardly materialize; even though those rights are of paramount importance, they are not enough. A more consistent equalization of power is mandatory, which social citizenship partly sustains, incapable however of fully responding to this requirement.

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6.3   The Imaginary and Disembedding Mechanisms How these imaginary elements have become an entrenched element of the modern imaginary and are partly institutionalized in modernity is what we need to understand now. This includes the trajectory of the imaginary as well as deeper social changes which are at the roots of modernity. This will allow us, against the foil of the evolution of these institutional issues, to fathom how intellectual and political movements have answered to the shortcomings of modernity regarding the unfulfilled promises that refuse to be forgotten by its children. 6.3.1  Disembedding and Autonomy Let us get started perusing into long-term changes. The concept of disembedding mechanisms and their attendant re-embedding mechanisms will be of great help for the fulfilment of this task. I have discussed them in other occasions at considerable length. Marx, Simmel, Lerner, Germani and, more explicitly, Giddens, have originally proposed the main elements for the formulation of these concepts, which I present here in my own version.8 The workings of these mechanisms imply an actual autonomization of agents, individual and collective. These are generative mechanisms of modernity, which I want to take directly to the political dimension. Disembedding and re-embedding mechanisms developed prior to modernity and carry on with their workings within its bounds. They are generative of what modernity has come to be and keep driving its unfolding. These mechanisms are of three kinds: (1) the expansion of market relations, which dissolve personal ties and, through the generation of other types of subordination, more of an impersonal character, cancel out personal, direct relations of domination, in which several power relations coalesced; (2) the abstract homogenization of a ‘national’ space by the state, which also eventually dissolves personal relations of domination in which we did not find the separation between the economic and the political such as it was established in this new civilization, eventually giving rise to the free citizen that has been central for this book; (3) the advance of means of communication, which saturates agents with an unprecedented and increasing volume of information, resting, in turn, on those former two mechanisms as well as on the articulation of networks of means of communication. The latter is directly connected to the increasing social pluralism that has been an outstanding feature of the long-term evolution

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of modernity, with, additionally, an impact on political life. This indicates that, notwithstanding the fact that we can observe similar phenomena in other civilizations and other non-modern space-time coordinates, in modernity not only do they evince specific features, but their explanation also has to be found in processes which are not operative in other ­circumstances. Since the seventeenth century, in Europe and to some extent in the Americas, they have worked together and reinforced each other. Released from direct social domination, individuals and collectivities have acquired real social autonomy, which slowly became political. Several sorts of restrictions, namely, new forms of domination, featuring capitalism, patriarchy, racial and ethnic hierarchies and differential power, filled the new social configuration, particularly in what more directly interests us here, state rule, let alone the presence of subtler and more limited forms of personal domination in all these situations. A feedback process between this more general autonomization and civil and political freedom ensued, to a variable extent. This has entailed some ambiguity and a permanent tension. This new context has fostered a new social demand stemming from the need to work out re-embeddings that could allow for the construction of new social relations and identities, away from the ascription typical of deeper and frozen embeddings. They have been articulated within the bounds of modern imaginary and institutional realities, starting with the capitalist market and the nation-state, counting too on the dissolution of lineages and new sorts of family life, in which social individualism more easily thrives. This involves a slow and uneven process of development of the rights imaginary and discourse as well as related institutions, though this was often a protected process. There is above all a close connection between the trends that are tantamount to the development of the nation-state, smashing former feudal hierarchies, and of state power and the rise and unfolding of autonomy, with its underlying disembedding and re-embedding mechanisms. Eventually, this led to civil and political freedom. It is important to note, conversely, that neither market relations nor the modern state would likely emerge, or develop the way they did, if individualization had not progressed. This is necessary for their articulation, and these are processes that reinforce each other, with especially the emergence of civil citizenship and the transformation of the labour force into a commodity. The liberal legal infrastructure, which became so central to modernity, in its political dimension to start with, was part and parcel of that, allowing for a far-­ reaching sort of civil and political individualism. If state power grew and

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homogenized the national space-time, it concentrated power, simultaneously taking up a specific juridical visage in which abstract individuals had a key and increasingly important part to perform. Individualization initially implied de-collectivization, that is, the weakening of ascriptive ties, but individuals were re-collectivized through their re-embeddings. These were only partly chosen, featuring classes, genders, ethnicities, races and nations, some of them, such as religious affiliations, gradually becoming more open and contingent. It has been heightened to a point at which these identities have become ever more fluid. This may not be taken as sheer egotism, contrary to a perhaps excessively quick dismissal, even less as a sort of self-contained utilitarianism. It seems today to evince two crucial characteristics. To conceptualize it, we may use the phrase social individualism: that is, a sort of individualism concerned with autonomy, singularity as well as with social life and, potentially at least, solidarity. We can spot in this a subtle inflection in a long-­term developmental trend in which re-embeddings are more flexible and partly move away from traditional bourgeois ideologies. Socially more autonomous and often more or less formally free in the bounds of citizenship, individuals recognize and desire ever more a singular trajectory, without eschewing social ties because of that. This means that they regard relations and collective belongings as more open, elective, but necessary, and positive. Striving for greater autonomy to accomplish their chosen destinies, they try to cultivate those social ties. This is, second, a sort of individualism that is highly critical of and rejects deference, shunning, whenever and to the extent possible, hierarchical relations, hence domination. In this, political relations stand out. Consequently, authority becomes an intrinsically contested concept, obviously without detriment to its actual importance in social life, with the radicalization of a trend that harks back to the beginnings of modernity. In other words, if socially power remains unevenly distributed, we increasingly nurse a perspective in which everyone tends to be taken as more or less equal—that is, assuming a status which is not based on ascriptive or even acquired characteristics that afford a superiority over other individuals, regardless of the rugged, and of lately stalled or rolled back, evolution of social citizenship and the welfare state.9 This mix of fluidity, self-determination, affirmation of personal autonomy and some sort of what can be defined as plebeianism (basically anti-­ aristocratic and anti-oligarchic), as well as of social connections, could not be exempt from political impacts. It is as such a political development, in which political citizenship assumes a liquefied and individualized, potentially

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fragmenting, character. Yet it empowers these individuals, whatever the efficacy of their political standing. The view of authority, including consent to rule, changes, demanding a more collaborative relationship, even when hierarchies are at stake and direct violence is deployed, without immediate recognition by individuals of a superior worth in those in power positions. Different bridges may be built, a chasm may be opened. 6.3.2  Dependence and Autonomy, Domination and Freedom As disembedding mechanisms and their accompanying post-ascriptive re-­ embeddings made ever deeper inroads, both autonomy and freedom eventually assumed the form of values, regardless of their institutionalization and their concrete reach in different societies. They became forcefully established10 yet retained a strong magmatic character, which includes in large measure an overlapping of content between them, in daily life and in general political discourse. They condense, are displaced and combine with other imaginary significations. Thereby autonomy and freedom have oriented thought and action, in the cognitive, normative and expressive dimensions, that is, concerning what we can know, ought to do, can expect as well as how we should express ourselves, in relation to ourselves and other individuals, collectivities and the natural world. It may be that at some point these imaginary elements will wither away, subdued or simply discarded by forms of domination so powerful that they would turn merely into residues of emancipatory thinking. Insofar as we remain within modernity, citizenship, guaranteeing some level of freedom, furnishes a horizon for our social embeddedness, while those mechanisms relentlessly push forward. If this is so, individual and collective autonomy, with the resulting demands of more autonomy and more freedom, will keep energizing our daily-historical social life. Probably important mutations will emerge as modernity keeps unfolding, especially if these demands are institutionalized. Autonomy and freedom offer key immanent criteria for critical theory, wherever it is put forward, without detriment to the ecumenical character critical theory must assume at this globalized stage of modernity, bringing together other civilizational strands that are present in its imaginary and institutions.11 The historical origins of such ideas are manifold and several reconstructions have tried to come to grips with the issue. Some place them in early Christianity, feudal notions of contract, the Papal revolution and successive waves of demand for freedom, late medieval ‘natural law’ conceptions and

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in its ensuing individualist/subjectivist modernization. Others prefer to speak of the Renaissance and the Reformations, religious conflicts and wars, directly associated to the sort of individualism and pluralism that arose at these historical junctures. Renaissance republicanism is also especially important, for instance, in the Italian cities and Britain. Autonomy and, specifically, its rendering as freedom or liberty, above all as equal freedom, is a phenomenon originally known only by the West, although different forms of individualism emerged elsewhere.12 Social struggles have been constantly energized by these imaginary significations, and there seems to be no reason we should abandon their lure, which entices people across the world. Political autonomy and freedom have been crucial aspects of modern philosophy, and the issues they originally raised remain with us to this day. They are especially important for political modernity. I will resume my former analysis of some of these issues, enacted mostly in Chap. 2, and expand themes only partly touched upon there. This will illuminate a core issue of our political imaginary and the developmental trend at work that counteracts the strengthening of the state. I shall start with the concept of ‘real rights’. This will provide us with an interesting angle to seize crucial aspects of autonomy and freedom. ‘Real rights’, let us remember, were absolute rights over material things. I argued that they look strikingly odd when opposed to ‘personal rights’, which would, only them, demand, for their existence, the participation of other legal persons. This is as true in modernity as it was in ancient Rome. I have thus rejected the distinction for the analytical purposes of this book, at the same time recognizing its importance in current legal reasoning. In fact, real rights’ secret is slavery: the things (res) to which they referred were slaves (‘reified’, that is), stripped of any human attribute, above all the possibility of standing against their own enslavement, absolute property over them guaranteeing this was impossible. They were under the absolute dominium of their owners/masters. Labour and property in modernity have been framed by the same categorization. But our body is not exempt from that, nor is our life or own will. To some extent, we can say that we own ourselves and our rights; conversely, these define us as citizens whose main characteristics consist of being holders of exactly these rights. This applies as long as we are the sole owners of our bodies, insofar as we are not subordinate to any one, subjectively and objectively. We are therefore juridically free to act, establish contracts and own property in an absolute manner. This depends for its full expression on how rational we

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are (otherwise such rights are limited) and on whether we can act responsibly towards ourselves and other agents, responding for our actions (in which case rights can be withdrawn, should we break the law). Reason in this case is, moreover, a characteristic of our mind or spirit, detached from our body and ruling over it, such as defined by the Cartesian-Hobbesian tradition that underpins the understanding of modern individuality and western notions of citizenship, answering for the possibility of enacting contracts.13 The fetishism of law and the state, analysed in Chaps. 1 and 2, rests on this definition of individuality, and the idea of a social compound or pact hinges directly on it, as we now see. In a sense, it is as though we were free because we are slaves only of ourselves, as absolute masters in our isolated sovereignty. This is a rather strange but warranted conclusion, the formulation becoming however somewhat meaningless if taken to its utmost consequences. It is, to take recourse in classical categories, more imperium than dominium that counts for politics, the latter explicitly relating to property in its pristine formulations. They were not easily distinguishable in the early political philosophy of modernity. They frequently overlapped, and their meaning used to magmatically fluctuate, especially until there was a sharp distinction between ‘economy’ and ‘polity’, with modernity fully constituted. Modernity proper, including its political dimension, only settled in definitively when this division was completed. Domination was then transferred to the realm of the state, with empire either simply disappearing or turned into the description of a specific sort of articulation of the modern state, especially as it covered colonial possessions outside Europe.14 On the other hand, once Hobbes introduced it, a new concept of ‘liberty’ made fortune—which did not contradict his allegiance to Absolutism, along with the persistence of those unstable expressions. It referred to ‘the absence of external impediments’ that could block a man’s power, rather than to the status of ‘free men’, and even less so to political participation. The older concept of freedom, which for the Romans and for early modern republicanism related to personal domination or dependence, to control of some sort, begun to slide to the back of the historical stage. The new one referred to whether people wanted to do something and were unimpeded or impeded to do it. So-called negative liberty derived from this innovation and became central to modernity.15 As a champion of civil rights and looking forward to guaranteeing natural unimpeded freedom, those two lines of reasoning were deepened in Locke, interconnected in his benign liberal turn. As to ‘political power’,

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those expressions kept their entanglement. This is clear when he speaks about labour and of how our body belongs to us and when he includes our ‘liberty, lives and states’ within our properties. Conquest, absolute dominion and slavery creep around as their opposite (though voluntarily becoming a servant for a while, that is, falling under somebody else’s dominion, was not a problem). Keeping those properties safe was the goal of ‘civil society’. America lurked in the background of the issues related to personal domination and property. In contradistinction, Rousseau’s extreme view had a direct political ring in its demand for an absolute surrender of the individual will to the state as the proper way of realizing freedom in and through the ‘general will’. This was a manner of breaking the chains of political subjection: we give us—collectively—our own law, which was the opposite of becoming slaves in ‘corrupted’ forms of government that did not recognize natural equality. We could thereby also avoid ‘dependence’ upon other people, that is, becoming subject to their will.16 Whether this would not renew subjection to an intolerant master remains of course an open question. More properly liberal and dominant in political modernity than Rousseau’s was Kant’s perspective, without detriment to the former’s influence. In his liberalism Kant was however at variance with Locke’s ­perspective. Autonomy and freedom tend to be distinguished in Kant’s writings. With respect to autonomy in transcendental terms—that is, referring to free, unconditioned will—this stops half way; as to external freedom, the issue receives a less ambiguous phrasing. Kant states that freedom—as ‘independence from someone else’s constraining, arbitrary will (Willkür)’, and from being bound to someone more tightly than the other way around—is rooted in an ‘innate equality’ of human beings. It means that each of us is, can or should be his own ‘master’ (Herr). He rejected, however, the idea of self-ownership. Property is a right exercised over ‘external things’ and, according to the ‘law of reason’, we cannot simply dispose of ourselves or our bodies. Furthermore, reason is the ultimate element allowing us to overcome the mere impulses of the body (which capture and may lower us). It culminates in the rational ‘categorical imperative’ and its universal maxims for action. This is when we are really autonomous: we recognize the external as essentially internal determinations according to the law of reason rather than as external, juridical impositions. This sort of formulation leads, of course, far beyond labour and our corporeal reality as our personal property, which justify bourgeois property and wage labour. It lingers on, however, even more deeply, connected to rationality as a

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distinctly human characteristic—opposed to the body. This is a crucial element that lies at the foundations of political modernity. As a testimony to the force of these presuppositions, Hegel resumed Locke’s idea of selfownership in his discussion of freedom, labour and the ‘system of necessities’.17 The traditional vision, after Hobbes unleashed his innovation, maintained some foothold in political philosophy. Eventually, it became more easily spelt however in political economy, in what refers to labour. Marx was quite aware of the issue. He spoke of workers as able, as owners of their labour power and of nothing else, to dispose of it as a commodity, juridically as free as the capitalists who buy it.18 They must do that on a daily, partial basis; if they sold it permanently they would become slaves. This is true also of the position of married women, those until not long ago purportedly rationally limited beings who, upon entering marriage, lost their freedom. This was if anything a passing freedom, since they were under the authority of fathers before being handed over to husbands, although at least formally not as the property of the latter. Whether women retained control over their bodies is more arguable. Men ‘acquired’ wives, and dominion by men in marriage was usually taken for granted—and often expressly voiced, variations in philosophical formulations notwithstanding (not by chance do feminism’s battle cries include the ‘my body belongs to me’, alongside ‘the personal is political’).19 This modern definition of freedom in opposition to slavery stemmed from Greek and Roman thought and feelings. Tellingly, when it was formulated it mostly silenced about actual situations of contemporary slavery.20 Slavery as such no longer plays a role in contemporary capitalism, but our property of ourselves still lurks in the background, starting with civil rights: we may not be slaves, we must be free from the domination of others, so that we can act unimpeded. This extends to the political dimension of rights, which rely on the former. But citizenship has now hidden those more disturbing elements of modern political thought. Freedom becomes defined as merely that which is limited only by the freedom of others, where it finds its threshold and impediment, with the simple proviso that to be free in relation to things is to be able to dispose of them as we please. More recently, there have even been attempts to change the foundations of citizenship and rights, in particular displacing property rights from the position of prominence they have enjoyed since the beginnings of modernity, with fundamental rights considered as prior to them.21 The same goes for the decentring of the subject, though not its dismissal

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at all, and its inclusion within interactions and relations, rather than taking individuality in isolation. The recognition that mind and body are not discrete internal entities within human beings—that therefore the mind is not master of the body—has also become common-sensical in much of contemporary social theory, let alone the decentring of the ‘ego’ in Freudian psychoanalysis, with the rational individual meeting its limits.22 Whether this is enough to really overcome those original views is doubtful. They have been repressed, and there is hardly room to voice themselves positively nowadays. Secretly, they still inform, to some extent, the magmatic universe of autonomy and freedom, citizenship and rights.

6.4   The Radicalization of Autonomy and the Reconstruction of Mediation While, to a large extent, we have been embedded in our craving for freedom (or liberty) in the bounds of citizenship, this has not been absolute. More radical ways of dealing with the issue have time and again flared up, striving to go beyond citizenship. Socialism, anarchism, communism are the most usual movements aiming in this direction. The former has historically relied upon the state to push through its reforms, the two latter have had, communism being fraught with inconsistencies in this regard, rejected the state as an integral part of modernity, identifying in its power a threat to human freedom. Against the market, the social-democratic (or labourist) welfare state implied more freedom for the working class, contrary to what was common parlance in the New Left and other currents, as I have already had occasion to mention.23 That notwithstanding, the proper appraisal of the state must consist in a pivotal aspect of critical theory and the strategies aiming at surpassing political modernity, in which the craving for freedom stops short, sometimes radically so, of having a proper mundane answer. Proudhon realized that cooperation in economic life creates a much greater ‘collective force’, yet he simply denied any role to capitalists in this process. He believed that such force was universal, but, similarly, thought that political power was merely negative. Proudhon therefore initially rejected ‘authority’ tout court (which for him was legitimate only in the family) in favour of multiple, de-centralized ‘contracts’ between free men and of ‘anarchy’, that is to say, the lack of government. Later on, pointing to an eternal, ahistorical and abstract dialectic between ‘authority’ and

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‘liberty’, with the latter progressively acquiring social weight, he proposed a solution to their tension through federations in which the former would be limited to the specific objects of established contracts. The ‘federative principle’ would thus allow for greater freedom to the units and individuals composing political bodies (banking on ‘subsidiarity’, he would probably say today). Issues would be tackled in principle at their most immediate level, central power would come in only when and if really necessary.24 Resuming but superseding Proudhon’s economic view, Marx discussed the special productive power derived from the ‘acting together’ (zusammenwirken was his verb of choice in the discussion of ‘cooperation’) of workers as something they did not, under capitalist relations of production, generate autonomously from capital. Capitalists were crucial agents in the new quantum of productivity achieved thereby: cooperation was exercised through their ‘command’ (Kommando), although they did not contribute directly to the production of use or exchange-value. They did no productive work, which was for Marx exclusively the transformation of nature, including transportation, a thesis difficult to square with the affirmation that the ‘order’ (Befehl) of capitalists in the factory was as necessary as those of the general in the battlefield or the guidance of the conductor for a violinist. Amazingly, in his discussion of the Paris Commune, written for the International Working Men’s Association, Marx accepted basically the Proudhonian view of politics, theoretically perhaps even his earlier ideas, including the potential reach of the federative principle. This was only slightly twisted by the utilization of the expression ‘dictatorship of the proletariat’, borrowed from the neo-Jacobin Louis Blanqui, which had more to do with the Roman political tradition in terms of emergency ­governments than with how we define it contemporarily.25 Political power was therefore deprived of a productivity of its own. For the transition to communism, during its initial phase, Marx submitted that an alternative political system should be erected outside and against the bureaucratic and oppressive politico-administrative state apparatus, the military included. This was merely a ‘fearsome parasitical body’, an expression he employs with direct reference to the French case. It had no positive contribution to society, actually the opposite. Revolution would free the working class and the population in general. This would not depend, of course, on an individual, contrary to that tradition; instead, revolution should be carried out within a different sort of cooperative endeavour. The collective experience of the Parisian workers (mostly artisans or employees in small factories, different from the British proletariat)

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was the attempt to build a state that would soon ‘wither away’. It is as though politics could and needed to be carried out bypassing the whole structure of modern citizenship and bureaucracy, as though they contributed nothing to what politics is and the tasks the latter was charged with were easily taken over by the organized proletariat. No specialization was necessary. These are passages, despite his praise of the contribution of the Parisian workers to new forms of democratic practice and thinking, revealing of Marx’s real difficulty to understand the actual role and functioning of the modern state, whatever the reality of the French bureaucracy at that stage. Rights and law were seen as mere encumbrances to be eventually discarded, an argument that appears to a large extent arbitrarily in his writings.26 The revolutionary communist perspective, such as expressed directly by Lenin in his emblematic The State and Revolution, has affirmed much the same henceforth. Not by chance did he stress that the machine of the bourgeois state should be smashed and that a cook could easily run the state administration. No special skills were needed. The later Engels took another direction; and, in spite of keeping the old revolutionary-­ insurrectional rhetoric, increasingly bet on a mass party, elections and slow reform, from within therefore, of the capitalist state (a project Marx only much more partially seems to have embraced). Authority—actually hierarchy—also found a defence in the old Engels, against its dismissal by most of the anarchist movement.27 The from-within method became the dominant path of social democracy in the West. Actual communist practice shared in this once the insurrectional path was closed. This was in a sense the fate of Leninism in Russia too, following revolution, since it totally banked on a reconstructed and powerful state everywhere it gained power, regardless of how one evaluates the degree of its inbuilt authoritarianism and its role in the surge of Stalinism. Bureaucratization was the upshot of the new Soviet state and its later reproductions during the twentieth century. The from-without perspective was for a long time confined to smaller political movements (anarchists and Trotskyites as well as, at times, outside China, Maoists). It has re-gained however a lot of traction as of late. Countless movements have developed that are wont to eschew current institutional arrangements and build new ones, outside the state, although, often and eventually, some of them have slid towards the from-within path to reform society.

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Theoretically, a number of perspectives have been articulated to account for these moves and help somehow to propel them towards total autonomy as collective self-determination and against state heteronomy and domination. Sometimes juridically formalized freedom is deemed useless or even detrimental to their projects. Anarchism, without much theoretical elaboration, has been at the forefront of these practices and even more recent Marxist approaches have included a return to what would be a more societal Marx. They are concerned, for instance, with the production of a ‘commons’ in which political activity in and out of itself (what we do in common, against the view of the ‘commons’ as something we could possess, even if collectively) is the criteria for its definition and which would actually furnish the way for socialist change.28 Negri and Hardt have been in the last years the authors who have more extensively, consistently and repeatedly tried to deal with the complex heritage of Marxism and offer an answer to contemporary challenges. Their views are beset with theoretical and political problems, which led on the other hand to some remarkable evolution. Initially, Hardt and Negri argued that with the development of the global and decentred twenty-first-century ‘Empire’, communism would be at hand. It was just a matter of shedding the parasitic shell of the ruling classes. Not by chance did they use the notorious expression. These classes no longer contribute anything, they affirm, to Post-Fordist bio-political production, which would be based more on cognition and affect than on physical labour. According to a barely disguised economism, pace the incorporation of Nietzsche and Foucault into their framework, the re-­ appropriation of politics appeared as a mere consequence of changes in the economy and the immediate installation of communism by the ‘multitude’, the mix of generality and singularity that for them distinguishes the contemporary proletariat. An ‘exodus’ strategy of change outside institutions was then explicitly proposed, via especially immigration. Eventually, Hardt and Negri moderated their concern with immediacy and direct action, speaking of the construction of a ‘commons’, beyond property relations, in which political mediation takes place, even though it still should surge purportedly outside traditional state frameworks. Even more recently, they have accepted the validity of true reformism and the ‘long march through the institutions’, pointing to the impossibility of the ­‘exodus’ strategy. Stressing the risks of co-optation and blockage, they intimate the possibility of large organizations working for emancipation, even if they are uneasy about—and actually fall short of—transferring issues of leadership and strategy to institutional (party) politics.29

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The first and the second phases (liberal and state organized) of modernity had individualism largely encased in the imaginary and institutional bounds of citizenship. This is what has been questioned in this third, present phase of modernity, more advanced, with the deepening of disembedding mechanisms, outstandingly in the political dimension. If from the onset of modernity authority has been constantly challenged—for hierarchies have become more difficult to justify—this has been now radicalized, despite the blockage of the ‘dialectic of control’ (of society over the state) and the recent increase in social inequality. Influence of society over the state has been more difficult to achieve and the authorization to rule less forthcoming.30 Political realities have produced lots of ‘dissatisfied’ citizens.31 With individual autonomy increased, this has also implied new approaches to engagement in social struggles, although it seems that we still are in the first moments of this developmental path. In any case, if we envisage the overcoming of modernity, if we can expect the struggles for rights to energize much of our social life, once creativity is mobilized in their course, it is especially unlikely that they will stop at the threshold of things it can hardly devise now. In the face of the blockage of change through institutional channels at present, the reality and the potential of citizenship, even at its best, have been deflated in many moments. The state and its laws are seen as part of more general schemes of domination. Mobilization for change therefore overflows the usual channels of citizenship. This may look sometimes like ‘civil disobedience’, a traditional form to do politics within the bounds of citizenship and law, even if it stands at its limits—that is, peacefully breaking laws we regard as unfair and unjust in order that new rights are conquered and old injuries redressed.32 New political moves very often tend to go beyond it, nonetheless. Not by chance have anarchism and autonomism as mass political movements gained momentum, rejecting state institutions and implicitly or explicitly even citizenship. Problems related to what leadership means and how to cope with it, a traditional problem in political modernity, on the other hand reappear.33 Whether we can get anywhere with these alternative forms is surely problematic, since in particular large-scale institutions are not amenable to the direct participation such ideas and movements imply, nor is it very clear in which measure and sense Proudhonian federations would be effective. Councils such as the Russian Soviets were themselves verticalized and dominated by ‘democratic centralism’, in which discipline at best toughly

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prevailed over participation.34 In any case, political power is by no means merely parasitical. Its productivity cannot be overlooked. If, as stated at the beginning of Chap. 2, the definition of the ‘public’ via law has been more important than the constitution of a bi-dimensional public sphere of opinion and politics, this does not make the latter irrelevant. It has been a space of mediation, between state and societal political systems. However, Habermas’ original assessment of their closure through commodification and oligopolization has come true, no matter what he more recently has been inclined to assume. Moreover, one can hardly say that it leaves room for interventions of the citizenry in political debate. They are closed and mostly work from the top-down, as critics pointed out even as for the initial modern period.35 This public sphere is today much less of a mediator. It is moreover extremely selective concerning who is allowed to present themselves publicly. To be sure, other means of communication may help a re-structuring of the public sphere, such as the internet.36 It is nevertheless unclear what their real import for the renewal of this space of opinion was, let alone their practical distance from, and feebleness vis-à-vis, the state political system. The more far-reaching changes discussed above aim to be, and may become, more consistent answers to the disconnection between autonomous agents and the political domain, whether this will or will not prove true, including changes in the state political system and organizations such as political parties. We may be confronted then with possibly new transformative mechanisms of advanced modernity. Whatever direction they take, we are bound to witness, in the long run, should the emancipatory trend prevail, a far-­ reaching rearrangement of the imaginary and the institutional design of individualism and collectivism, autonomy and authority, citizenship and rights. This will require a comprehensive reconstruction, whatever the forms the association of individuals and collectivities may assume. How this will be accomplished consists in a problem that only social practice is able to answer. The from-without strategy should in principle be combined with the from-within strategy. Imaginative efforts, including thought experiments and projection from specific experiences, will necessarily play a part in this. Regardless of how these alternatives will unfold, it is clear that emancipatory paths remain open. Countertrends within the political dimension have not been entirely blocked by dominant developmental trends in which domination maintains the upper hand.

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Notes 1. Michael Mann, The Sources of Social Power, vol. 1. A History of Power from the Beginning to A.D. 1760 (Cambridge: Cambridge University Press, 1986), chaps. 3–5; Klaus Eder, Die Entstehung staatlich organisierter Gesellschaften. Ein Beitrag zu einer Theorie sozialer Evolution (Frankfurt am Main: Suhrkamp, 1976). See also Pierre Clastres, La Société contre l’Etat. Researches d’anthropologie politique (Paris: Minuit, 1974); David Graeber, Fragments of an Anarchist Anthropology (Chicago: Paradigm, 2004). 2. Cornelius Castoriadis, L’Institution imaginaire de la société (Paris: Seuil, 1975), pp.  103ff, 138ff; and, particularly, Idem, ‘Pouvoir, politique, autonomie’ (1988), in Le Monde morcelé (Paris: Seuil, 1990). He was, however, much more pessimistic in La Monté de l’insignificance (Paris: Seuil, 1996). 3. I have articulated a both conceptually and more empirically oriented assessment of the issue in José Maurício Domingues, ‘From citizenship to social liberalism or beyond? Some theoretical and historical landmarks’, Citizenship Studies, vol. 21 (2017). 4. Breno Bringel and J.  M. Domingues (eds), Global Modernity and Social Contestation (London and New Delhi: Sage, 2015). 5. The literature is legion in this regard, in sociology, political theory and history. See Carol Pateman, Participatory Democracy (Cambridge: Cambridge University Press, 1970); Jürgen Habermas, Fazität und Geltung. Beitrag zur Diskurstheorie des Rechts und des demokratischen Rechtsstaat (Frankfurt am Main: Suhrkamp, 1992), chap. 7. 6. Max Weber, Die Wirtschaftsethik der Weltreligionen. Gesalmmelte Aufsätze zur Religionssoziologie, vols 1–3 (Tübingen: J. C. B. Mohr [Paul Siebeck], [1904–1920] 1988). 7. See Ernest Cassirer, Philosophy of the Enlightenment (Princeton, NJ: Princeton University Press, [1932] 2009), chap. 6; Charles Taylor, Sources of the Self (Cambridge, MA: Harvard University Press, 1992), pp. 12, 245, 305–08, 363, 382, 385. 8. J. M. Domingues, Modernity Reconstructed (Cardiff: University of Wales Press, 2006), chap. 1; Idem, Global Modernity, Development, and Contemporary Civilization: Towards a Renewal of Critical Theory (New York and London: Routledge, 2012), pp. 28–29, 95, 99–101. 9. Danilo Martuccelli, La Société singulariste (Paris: Armand Collin, 2010); Kathya Araujo and Danilo Martuccelli, Desafíos comunes. Retratos de la sociedad chilena y sus individuos, vols 1–2 (Santiago de Chile: Lom, 2014); Göran Therborn, From Marxism to Post-Marxism? (London and New York: Verso, 2010).

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10. In sociology, a pioneering formulation of this sort of problem is found in Gino Germani, Política y sociedad en una época de transición (Buenos Aires: Paidós, 1965), chap. 5. 11. J.  M. Domingues, ‘Vicissitudes and possibilities of critical theory today’ (2013, 2015), in Emancipation and History: The Return of Social Theory (Leiden: Brill, 2017 and Chicago: Haymarket, 2018); Global Modernity, Development, and Contemporary Civilization, chap. 1. 12. See Mann, op. cit., vol. 1, pp.  397–98; Agnes Heller, Renaissance Man (New York and London: Routledge, [1966] 1978); Richard Morse, El espejo de Próspero (Mexico: Siglo XXI, 1982); Taylor, op. cit.; Quentin Skinner, The Foundations of Modern Political Thought, vols 1–2 (Cambridge: Cambridge University Press, 1978); Hauke Brunkhorst, Critical Theory of Legal Revolutions: Evolutionary Perspectives (New York and London: Bloomsbury, 2014), chap. 3. 13. Crawford B. Macpherson, The Political Theory of Possessive Individualism (Oxford: Oxford University Press, [1962] 2011), general assumptions stated in pp. 3, 54, 163ff; James Tully, ‘The framework of natural rights in Locke’s analysis of property’, in An Approach to Political Philosophy: Locke in Contexts (Cambridge: Cambridge University Press, 1993); Peter Garnsey, Thinking about Property: From Antiquity to the Age of Revolution (Cambridge: Cambridge University Press, 2008), pp. 146–54; D. Graeber, Debt: the First 5000 Years (New York: Melville, [2011] 2014), pp. 205–07; Talcott Parsons, ‘Social interaction’ (1968), in Social Systems and the Evolution of Action Theory (New York: Free Press, 1977). 14. In the historical process of change in their meanings, Grotius’ position, originally expressed in Latin, seemingly stands out as trying to distinguish between both notions, while English Stuart Absolutism, in which we find Hobbes, was wont to conflate them. See Eric Wilson, The Savage Republic: De Indis of Hugos Grotius, Republicanism, and Dutch Hegemony within the Early Modern World-System (c. 1600–1619) (Leiden and Boston: Martinus Nijhoff, 2008). Hobbes asserted that ‘Men naturally love liberty, and dominium over others’, bringing out the sort of topic dealt with by all these authors—namely, subordination to an arbitrary will and slavery, which includes political issues, traditionally considered in terms of imperium— though his late Absolutist inclinations were also evident at this point (‘dominium’ is explicitly equated with ‘sovereignty’). Thomas Hobbes, Leviathan: or the Matter, Forme, and Power of Common-Wealth Ecclesiastical and Civil (Cambridge: Cambridge University Press, [1651] 1996), chap. 17—but in many other places in this book too. These expressions are mixed up, together with ‘jurisdiction’, in John Locke, Second Treatise (1689), in Two Treatises on Government (Cambridge: Cambridge University Press, 1988), passim. The conflation of those two ideas started, evocatively,

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in Imperial Rome. See Melissa Lane, The Birth of Politics: Eight Greek and Roman Political Ideas and Why They Matter (Princeton, NJ: Princeton University Press, 2014), pp. 288–89. 15. Hobbes, op. cit., chap. 14. ‘Rights’ would then be ‘the liberty to do, or to forbear’. See Q.  Skinner, Hobbes and Republican Liberty (Cambridge: Cambridge University Press, 2008). The momentous consequences of this for nineteenth and eighteenth-century liberalism were pointed out in Chap. 1. 16. Locke, op. cit., chaps. 2, 4–5, 9; Jean-Jacques Rousseau, Du Contrat social, ou principes du droit politique (1762), in Ouevres complètes, vol. II (Paris: Seuil, 1971), chaps. 1.1, 1.4, 1.6. Note that, pace a later revision of such view, he distinguishes ‘citizens’—who do not ever surrender their sovereignty—from ‘subjects’, a point the English missed when accepting representation, thereby becoming ‘slaves’, ‘nothing’ indeed, in chaps. 1.6, 3.15; Idem, Discours sur l’origine et les fondements de l’inégalité parmi les hommes (1755), in op. cit., Second Part. For Locke, see also J. Tully, A Discourse on Property: John Locke and his Adversaries (Cambridge: Cambridge University Press, 1980), pp. 61, 69, 71–72, 93, 146, 167, 174. If being a temporary servant was not, in civil terms, a problem, it often meant exclusion from active political citizenship, due to a supposed dependence on masters. 17. Immanuel Kant, Metaphysik der Sitten, in Werke, vol. 8 (Frankfurt am Main: Surkamp, [1797] 1977), especially ‘Eileitung in die Rechtslehre’, §§ A-B, pp.  344–46; Georg Wilhelm Friedrich Hegel, Grundlinien der Philosophie des Rechts (1820), in Werke, vol. 7 (Frankfurt am Main: Suhrkamp, 1986), § 57, pp. 122–26. Of course, nothing is simple in these authors. For the complications of the former, see Paul Guyer, ‘Kant on the theory and practice of autonomy’, in Ellen Frankel Paul, Fred D. Miller, Jr., and Jeffrey Paul (eds), Autonomy (Cambridge: Cambridge University Press, 2003); for both, C. Taylor, Hegel and Modern Society (Cambridge: Cambridge University Press,1979), pp. 4–5, 75–84. 18. K. Marx, Das Kapital. Kritik der politischen Ökonomie, vol. 1 (1867, 1873), in K.  Marx and F.  Engels, Werke, vol. 23 (Berlin: Dietz, 1962), vol. 1, pp. 181–83; already also in K. Marx and F. Engels, Manifest der kommunistischen Partei (1848), in Werke, vol. 4 (Berlin: Dietz, 1978), p. 468. 19. C. Pateman, The Sexual Contract (Cambridge: Polity, 1988). 20. Lane, op. cit., pp. 35–36. 21. Cf. Luigi Ferrajoli, ‘Diritti fundamentali’, in Emanno Vitali (ed.), Diritti fondamentali (Roma: Laterza, 2001), wherein property rights are deemed simply ‘patrimonial rights’. 22. J.  M. Domingues, Sociological Theory and Collective Subjectivity (Basingstoke: Macmillan and New York: Saint Martin’s Press [Palgrave], 1995), chap. 7. Simmel, Mead, Freud, Dewey and so many others were fundamental to this process of questioning and opening up the modern subject. We do not need to go into detail about this here.

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23. Idem, Social Creativity, Collective Subjectivity and Contemporary Modernity (Basingstoke: Macmillan and New York: Saint Martin’s Press [Palgrave], 2000), chap. 7. 24. Pierre J. Proudhon, Qu’est-ce que la Propriété? Ou recherches sur le principe du droit et du governement (Paris: Garnier Frères, [1840] 1859), pp.  9, 99–101, 129; Idem, Idée générale de la revolution au XIXe siècle. Choix d’études sur la practique revolutionaire et industrielle (Paris: Gariner Frères, 1851), especially studies 3–4 and pp. 192ff, 277ff; Idem, ‘Du principe de Fédération’, in Du Principe Fédératif et de la nécessité de reconstituer le parti de la révolution (Paris: E. Dentu, 1863), chaps. 1–4, 7. 25. K. Marx, Das Kapital, vol. 1, chap. 11, pp. 349–50; Idem, ‘The Civil War in France’ (1871), in K. Marx and F. Engels, Collected Works, 1870–1871 (London: Lawrence & Wishart, 1986). In order to avoid confusion, I have re-translated into English Kommando and Befehl differently, although they both most certainly are a way Marx rendered command, such as used in political economy, from that language into German. Weber used Befehl, which I have formerly translated as command, as we find it from Hobbes to Austin in political theory and jurisprudence. Topics were similar, conceptual legacies alike. 26. Marx, ‘The Civil War in France’ and, for bureaucracy, Der achtzehnte Brumaire des Louis Bonaparte (1852), in K. Marx and F. Engels, Werke, vol. 8 (Berlin: Dietz, 1960), p. 196; Idem, ‘Kritik des Gothaer Programs’ (1875), in K. Marx and F. Engels, Werke, vol. 19 (Berlin: Dietz, 1987). In principle, although never even nearly formulated like this, we may say that especially Marx and Proudhon bet on a sort of power network based on ‘voluntary cooperation’ (which was perhaps less thoroughgoing for Engels and Lenin—more on that below). For this sort of mechanism of coordination, see J. M. Domingues, ‘The basic forms of social interaction’ (2017), in Emancipation and History. 27. Vladimir I. U. Lenin, The State and Revolution: The Marxist Theory of the State and the Tasks of the Proletariat in the Revolution (1918), in Collected Works, vol. 25 (Moscow: Progress Publishers, 1932); F. Engels, ‘Von der Autorität’ (1874), in K. Marx and F. Engels, Werke, vol. 18 (Berlin: Dietz, 1976). For Engels and the late evolution of social democracy, see Adam Przeworski and John Sprague, Paper Stones: A History of Electoral Socialism (Chicago: University of Chicago Press, 1986). 28. The main anarchist argument, a current allegedly more practical and collective than theoretical and individualistic, in terms of thought, is found in Graeber, Fragments of an Anarchist Anthropology. For that Marxist strand (which resumes Proudhon too), see Pierre Dardot and Christian Laval, Commun. Essay sur la revolution au XXIe siècle (Paris: La Découverte, 2014), especially pp. 49–51ff.

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29. Michael Hardt and Antonio Negri, Empire (Cambridge, MA: Harvard University Press, 2001); Idem, Multitude: War and Democracy in the Age of Empire (New York: Penguin, 2004); Idem, Common Wealth (Cambridge, MA: Harvard University Press, 2011); Declaration (New York: Argo, 2011); Idem, Assembly (New York: Oxford University Press, 2017). Negri had formerly discussed precisely the requirements for governing that Lenin’s reflection entailed, and argued that the new economy was unripe for what was a complicated predicament at the moment of the Russian revolution. A. Negri, Il potere constituente. Sagio sulle alternative del moderno (Roma: Manifestolibri, [1992] 2002), chap. 6. He was involved in the Italian extreme-left from the 1950s to the 1980s, starting from ‘operaismo’, a radical ‘workerist’ position (against the Communist Party more general ‘civil society’ and electorally based strategy), re-elaborating his positions in the books with Hardt. While his general outlook has been kept, a certain level of theoretical and political self-criticism as well as a greater concern with political processes proper has crept into this later work. But the uneasiness with the ‘autonomy of the political’ echoes, perhaps, former polemics with Mario Tronti, when the latter abandoned ‘operaismo’. I have discussed Negri’s work in J. M. Domingues, ‘Critical social theory, developmental trends, emancipation and late communism’ (2016), in Emancipation and History. 30. Hannah Arendt, ‘What is authority?’, in Between Past and Future: Eight Exercises in Political Thought (London: Penguin, [1961, 1968] 1993); K. Araujo, El miedo a los subordinados. Una teoría de la autoridad (Santiago: Lom, 2016), chap. 5. She keenly differentiates more authoritarian, but also less rigid, Latin America and particularly Chile from the West. 31. Pippa Norris (ed.), Critical Citizens: Global Support for Democratic Governance (Oxford: Oxford University Press, 1999). 32. Jean L.  Cohen and Andrew Arato, Civil Society and Political Theory (Cambridge, MA and London: MIT Press, 1992), pp. 564ff. 33. Simon Western, ‘Autonomist leadership in leaderless movements: anarchists leading the way’, Ephemera: Theory & Politics in Organization, vol. 14 (2014). 34. Michael Waller, Democratic Centralism: An Historical Commentary (Manchester: Manchester University Press, 1986). 35. Jürgen Habermas, Strukturwandel der Öffentlichkeit. Untersuchungen zu einer Kategorie der bürgerlichen Gesellschaft (Frankfurt am Main: Luchterhand [1962] 1990); Fazität und Geltung. Beitrag zur Diskurstheorie des Rechts und des demokratischen Rechtsstaat (Frankfurt am Main: Suhrkamp, 1992); Craig Calhoun (ed.), Habermas and the Public Sphere (Cambridge, MA: MIT Press, 1992). 36. Manuel Castells, Networks of Outrage and Hope: Social Movements in the Internet Age (Cambridge: Polity, [2012] 2015).

CHAPTER 7

Global Ramifications: Sovereignty and Autonomy

7.1   Branching Out I have referred to the power of the state hitherto as though this required no further space-time characterization. We have abstracted from its scalar configuration. We must tackle this now, since today globalization and localization are processes with great momentum. They intensely impact the national state. We also need to resume the issues related to individualization and autonomization that operate in inverse connection with the growth of state power. The two trends discussed in the last chapters will return at the global scalar level now. I do not mean, by this ordering, that this global level substantively comes last. Yet analytically, as well as due to the self-understanding of modernity, it is partly a derivation of the national level, where sovereignty resides first of all. Globalizing processes imply a compression of space-time, not its collapse: the scalar configuration remains multiple, with the global level bolstered. Moreover, through power-sharing at the global level, the state remains strong and may even be strengthened. In other words, we are not dealing with a zero-sum game. Finally, we must address the scalar constitution of the political system, in both its state and societal aspects. It too evinces a global layer that increasingly deserves attention. Conversely, disembedding mechanisms, individualization, rights, above all through human rights, and political mobilization in some sense deepen their purchase in contemporary globalized and advanced modernity.

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This chapter will therefore branch out to the global level and several topics treated across this book will be further elaborated. Its main interlocutor is in some measure international relations theory, but a decidedly sociological and critical perspective will characterize its contribution. We need an integrated approach to these topics, especially to bring out their articulate and contradictory development.

7.2   State Power and Scalar Constitution International relations theory was the product in large measure of ‘realist’ currents. States appear in their writings as individual ‘actors’ concerned only with their interests and depending exclusively on their own power, actually divided into greater and lesser ‘powers’. Geography, natural resources, economic development, size, population, diplomacy, commitment to the state, effective government were power factors, among others, that could be mobilized, according to realists. Originally this was thought of more in terms of singular states, in a fundamentally lawless global environment, with Hobbes’ state of nature transplanted outside national borders. Eventually, realism evolved to conceive of them within an interwoven system, echoing the former law of nations.1 This mirrored the pristine discussion of sovereignty in political philosophy, rooted in the view, since Absolutism, of states as a unity unto themselves. At the same time, they were inevitably seen, in the European context, as part of a ‘society of states’. In this larger order, contrary to a more Hobbesian vision, there were some basic rules connecting these entities, to start with the recognition of their sovereignty and some definitions of what counted as legitimate war and territory grabbing, a main issue in the global expansion of state power and of the West at that stage.2 Henceforth sovereignty lay at the core of the international ‘system of states’ was originally conceived in European terms alone. Sovereignty was classically defined by Vattel as the absolute autonomy of a ‘public authority’ emanating from a ‘self-governing nation’ which rules ‘without dependence on any foreigner’ power and in accordance to ‘its own laws’. Re-stating a perspective typical of the period, he saw them as ‘moral persons’, absolutely free in their ‘state of nature’, albeit under the rule of natural law. Since there was nothing above them, they should be taken as the judges of their own behaviour. However, he retained the idea of just and unjust wars. States should monopolize external relations, especially warfare, a view that became standard afterwards. In the same vein, state

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external assertion was celebrated, with war deemed the only final method to tackle starker disagreements between nations. The emerging unified territorial, Absolutist state was initially considered according to unitary ‘organ sovereignty’. With liberal constitutionalism (implying the division of powers) and popular sovereignty, that monist conception gave way and, internally, sovereignty was diffused and shared across the political system (including citizens). Meanwhile, the original system of Absolutist states had its global heyday and was given further lease with the Westphalia treaty, which did not prohibit, simply regulated, war and conquest. This encompassed a late, tense and aggressive, blend of nation-state and empire—what may be called the imperial nation-state, whether republican or monarchical—some of them amazingly extensive, with colonies of course divested of sovereignty. Their integration with the nation-state remained always somewhat problematic, especially if the latter had a republican form (bureaucracy playing a key-integrative role therein).3 Expressing the development of the principle of sovereignty with his usual bluntness, Austin observed that an ‘independent political society’ was that in which ‘obedience’ (subordination) to the ‘sovereign’ was given by the majority. He somehow resumed the problem of independence we discussed in Chap. 6, in individual terms. The sovereign was not subordinated to anyone else, although, because relations with other states were inevitable, this could never be absolute.4 We find the relevance of ‘external sovereignty’, as he put it, repeated for instance in Hegel’s work. This was uttered along with the ideas that the modern state—Prussia above all—as an ‘individuality’ stood for the apotheosis of reason in history and that war was essential for the development of its ethical content, entailing the solidarization of the individual.5 Eventually, however, especially after two world wars were unleashed in Europe and the protracted, and frequently bloody, end of colonialism came about, a more restrictive system emerged. Conquest was ruled out and states partly let go of absolute sovereignty, which had been in any event always a chimera. The pact between those emerging European powers, in which the Westphalian rules were defined, lasted therefore until World War II and beyond. Conversely, it can be argued, necessary qualifications notwithstanding, that the expansion of the state globally meant precisely the reiteration of sovereignty as an organizing principle. Likewise, war has never really disappeared, pace benign liberal and modernizing expectations.6

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The state was, in addition, for a long time often taken as the basic unit of analysis in the social sciences, some even, of late, decrying ‘methodological nationalism’, the extent to which this is true remaining controversial.7 With the intensification of globalization, the issue came to the fore of theoretical debate. The scalar dimension of political power and of the political system has vigorously emerged.8 Local, national, regional and international or global space-time coordinates have become major focuses of analysis in terms of power apparatuses and decision-making sites as well as of societal dynamics. This introduces much more complexity in the discussion than the simple identification between state and political power. The enhancement of state power (capabilities), its strengthening and the shared concentration of power in it and associated collectivities, in the societal side of the modern political divide and beyond, must be grappled with at the global level. Castells suggestively spoke of the ‘network state’.9 We need to grasp precisely what this means. Capabilities, examined in Chap. 5, are not so much affected by whether we refer to the state at the local or at the national level. Nor is what I have called rational utilitarian expediency. When compounds such as the European Union are taken into account, things do not essentially change in this regard. They evince state-like structures which do not really differ from those of national states, despite the manifestly central relevance of the networked link between them for their proper functioning and, depending on the capability at stake, some variation in their operation. Taxation is still mainly confined to the national level. This actually creates problems for states, especially due to the increasingly global and mobile character of capital, tax havens further checking levying possibilities. This is some part a result of states’ own decision of leaving all sort of loopholes for tax evasion, let alone refraining from tougher global regulation and cross-boundary taxes. In turn, managing is more or less centralized in these different scalar configurations, without essential changes in its features: global bureaucratic thickness accompanies the scalar expansion of managing. Moulding undergoes the same scalar spread, without being significantly altered either. Surveillance and violence to a large extent persist as a preserve of the national state, yet become more networked globally so as to be made more effective. Especially ‘terrorism’, due to its often (though not always) networked organization, puts enormous pressure on the globally networked security state, partly explaining, and especially ­justifying, the expansion of surveillance, in some cases against liberal constitutional rules.10 Remember, as formerly observed, that stringent

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surveillance and security are by no means inimical to liberalism. What is more, the ‘dual state’ is intrinsically international with respect to its own secret networks and may easily turn, often by stealth, against the formal liberal state.11 All this largely depends on the ‘monopolization of the legitimate “means of movement”’ (hinging on sovereignty and coercion) as well as on the intentional breaches thereof. Passports have been important in this regard, marking off belongings, who is and who is not a citizen. This is not to say that all movement is controlled. There are in fact intense movements of population allowed or promoted by the state and others that frequently happen against its at least formal permission, thus implying illegal immigration. If this intensified at the end of the twentieth century, the role it has played at other stages must not be overlooked.12 Neopatrimonialism is present in the constitution of global political modernity too, regarding both public officials and business firms—not seldom from central countries operating in the periphery and the semi-periphery. ‘Corruption’ used to be been taken lightly by central governments and overlooked by interstate international organizations such as the World Bank and the International Monetary Fund (IMF). More recently, the United States and the EU, associated to some of those organizations, seemingly became uneasy about its impact on development, terrorism, organized crime, unfair competition and other problems, initiating strategies to counter it, partially.13 The legal meta-capability of the state is in particular touched by changes in sovereignty regimes, a delicate move due to the very definition of sovereignty as self-determination. Legal production has partly shifted upwards, to international organizations’ legislative sites, during a period in which increased social complexity has multiplied social domains demanding regulation. Yet it is only through the mediation of the national state that this occurs, through the acceptance of international treatises and agreements. Powerful states more easily skip them, something the US regularly does, weaker states grudgingly accept things they might otherwise eschew.14 In what concerns the strengthening of the state and the concentration of power, in its apparatuses and symbolically, we must be careful. As to the local and the regional levels, we can assume that change is limited. At the global level, striking novelties have come about in the last decades, with precedents since the 1940s. They involve the role of international organizations and the global regime of sovereignty. In particular, as aforementioned, nation-states—or some of them, certainly—no longer have the

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‘monopoly of production of international/global law’ and ‘supreme authority and control’ within their territory nor ‘autonomy from outside powers’. The United Nations (UN), with its charter, former Breton Woods creations, such as the World Bank and the IMF, alongside newer ones, for instance the World Trade Organization (WTO), has yielded new ties between states and new rules for them. War, especially, has become a convoluted question, with more stringent justifications for this, alongside the formal rejection of territorial conquest as a means of state power expansion. A new, more limited regime of sovereignty is emerging, amid controversy and great perils. Paradoxically, boundaries have become more sacred than ever.15 Dangers are obvious, to some extent they are sheer reality: ‘great powers’—above all the US—can use these changes to covertly—or not so covertly—forward their own unilateral interest. International relations are profoundly asymmetrical, with the concept of ‘hegemony’ as a proper means to grasp this double dimension of ‘consensus’ and ‘coercion’ Gramsci pointed out (with some, surely drawing upon his work, calling the former ‘soft power’). Global political inequalities are thereby blatantly re-affirmed.16 Power concentration has been, as suggested above, present at the global scalar level. This may be somewhat counterintuitive, becoming clearer if we do not think of it in exclusive terms: it is power-sharing that really matters. Moulding capabilities epitomize this possibility, with international organizations such as the World Bank standing out. It plays a crucial role in programmes for poverty reduction, healthcare, educational policies, legal reform, women’s rights, political participation and so on and so forth. These used to be the preserve and duty of nation-states, by themselves or in power-sharing arrangements with societal organizations within their borders. Those organizations shape individual and collective subjectivity, beyond more practical policy issues.17 Power-sharing at the global level can strengthen the state and concentrate power in it and in its network partners, including a positive-sum power game. The role of the societal side of the divide, featuring arenas and agencies such as the Davos Economic Forum, should not be disregarded either. Global, particularly finance capital agents gather to assess the world and formulate policies, although some of them can simply by-pass interstate international organizations. Sassen has provided the main categorization of new state designs regarding its scalar configuration. It is not so much that the nation-state has lost power, in a sense quite the opposite. In relation to the population

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it has been strengthened and become less responsive to it and to national popular/citizen demands. The nation-state has been re-functionalized to fit into global games, which are not external to it. They take place instead partly via its political system, laws, regulations and bureaucratic apparatuses, as well as through transactions with its societally more closely connected agents. Executive power gets a boost from these developments and is pivotal to them.18 If anything, this reinforces the accumulation of power in the state as a developmental trend. Phenomena such as the growth of ‘lex mercatoria’ may challenge state power and imply legal pluralism, without shifting the direction of the processes analysed here.19 Capabilities are usually enhanced—hence total state power—and the network state strengthened and power concentrated in the state through sharing, even though it cares little for the national populations which remain under its purview and, on occasion, violent intervention. International organizations increase their power too. As usual, it is mainly central states (the US, Germany, France, Britain, Japan, above all) that fare well. Peripheral and semi-peripheral states have much more difficulty profiting from these changes, if they at all do. Others do not like them—especially Russia—or— mainly China—and have in a sense waited in the wings. What exactly will be their future orientation is something hitherto still not very clear.20 Despite these skewed relations, insofar as decision-making processes take place at a truly international level, we can speak, for the first time in history, of a global political system. This moves the scalar level of precisely what we analysed in Chap. 4. The original modern divide—state/society, public/private—persists as the infrastructure which, both at the national and the global levels, undergirds it. This global political system also evinces both state and societal aspects.21 I have hitherto depicted only its state and para-state constitution. We will soon turn to its other rim. It remains to be added that this side of the political system is extremely closed, includes the very few and operates absolutely from the top down. Although it cares about ‘public opinion’ in diverse countries and is intent on building something approaching hegemony, this is not usually at the centre of its concerns, let alone the political representation of their citizens. National perspectives and interests are directly and usually narrowly presented by nation-state ruling collectivities in accordance with similar groups that operate directly at the global level. Evidently, disagreements between them and the greater difficulty to make decisions binding on particular states give occasion to serious and sometimes intractable conflicts.

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All states have a warring capability, which in modernity is intrinsic to international relations. Absent from our list thus far, this is the adequate moment to introduce it. It has been steadily enhanced overall and with respect to each state. This has to be considered, in the end, within a system of states, in which some are far stronger, others much weaker. This warring capability includes organizational, material and symbolic elements in its structuration. It has been seen as another means to purse political objectives, beyond diplomacy, in the relation between states. I mentioned above realism’s power factors, which include geography, natural resources, economic development, size, population, diplomacy, commitment of the population to the state, effective government. Add to that bureaucratic structures and, particularly, the industrialization of war. These are hallmarks of warring capability. If its deployment is more circumscribed at the moment, it haunts all interstate interactions. While repression and war usually went together, in modernity they bifurcated. Mind you, though, armies remain a powerful force behind prosaic police bodies, everywhere.22

7.3   Human Rights and Autonomy The scalar perspective must be taken a step further, regarding the second developmental trend identified in this chapter. Immigration has become a huge and mounting global issue, with specific and usually, albeit not always, more flexible legislation to cope with it. At the same time, sovereign states clearly cling to their restrictive definitions of national citizenship and nationalist movements, often xenophobic, emphasize enclosure.23 Changes have however come about. Human rights have become a much more powerful theme in global politics than ever. The key and pristine document here is evidently the 1948 United Nations’ Universal Declaration of Human Rights. Others were added to it. The evolution of this debate and transformations in the regime of sovereignty associated with it are complex. The ‘right to protect’ and to intervene in the internal affairs of states, including military invasion, has been hotly discussed and disputed. There are advances in this respect, since within the more limited contemporary sovereignty regime limits have also been set for what states can and should do to their populations, genocide remaining a foremost situation justifying that foreign forces step in and ‘human security rights’ are protected. This furnishes the minimal and putatively most secure way to avoid manipulation by vested interests, some argue.24 Sadly, but not

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surprisingly, thus far the evidence that these changes will not simply be used by great powers to forward their interest is rather thin. More positively, these developments are connected not only to states’ power games. Global human rights regimes have been important in many cases for struggles put up internally by citizens’ movements in countries where abuses have been committed by authoritarian states or irregular military and political forces.25 The development of a global conception of individual rights seems to finally lend substance to the idea of a cosmopolitan order in which these are or ought to be respected. Accordingly, Kant’s view would eventually have found more concrete moorings in political and juridical life.26 The obvious problem with this may be the western origins and features of human rights as an imaginary construction, more specifically as a value, with its strong individualism.27 Human rights have, that notwithstanding, spread out as discourse and demand, including places where modernity has developed only with the western expansion. Globalization is closely responsible for this, and its emancipatory elements still clearly make sense when it comes to the defence of individual freedom and even citizenship in settings other than those where they initially surged. The abstract ­conception of the individual, which we visited in Chap. 1, is therefore plainly reproduced in global human rights regimes. It remains to be seen exactly how these rights can be enforced, since historically the nation-state has been the bearer of legitimacy and institutions that guarantee their positivization, let alone their legitimacy as such in different regions. Global organizations and states taking up these attributions on their behalf have been only limitedly successful and, as seen above, may consist in problematic carriers of (possibly fake) mandates to defend, sometimes disputed, human rights outside their territorial jurisdiction. Despite the creeping presence of dubious goals and its partial civilizational origins, this is a trend that expands the process of autonomization, which we have conceptualized in Chap. 6, now directly at the global level. This is where it to some extent was initially and abstractly situated, namely, in relation to humanity (who belonged to its universe consisting in a contested theme, as we shall see shortly). This also reinforces individualism as a value at the global level, regardless of whether and how other countries of global modernity have taken it up. Individual dignity— connected to the expansion of an expectation of legally guaranteed equal freedom—has come to hold pride of place once individual human rights became a central global value. However, the concentration of justice

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exclusively on individual human rights is highly problematic for a critical approach to modernity. It obfuscates and may totally eclipse the multidimensional inequalities between countries (centre, semi-periphery and periphery) that characterize global modernity. In this regard, we run precisely the risk, denounced by Marx and examined in Chap. 1, of blocking consideration of the elements that compose the actual societal side of global modern life, through a separation between abstract humanity, individual citizens and concrete human beings. These are inevitably enmeshed in countries, nations, classes, races, genders and other collectivities, located in very unequal positionings. This is not adequate for a global critical theory.28 Collective autonomy has also become a global issue. Of course, this has been the case in what concerns autonomization, featuring first of all formal independence, of peripheral and semi-peripheral countries. This was an issue present in the nineteenth and heightened in the twentieth century. Anti-colonial struggles, liberation movements and self-assertation, economic or otherwise, stood out in this process.29 While China and Vietnam, for instance, show that this is not a totally hopeless quest, despite the pervasiveness of neoliberalism, there are two more contemporary angles which deserve our attention regarding collective autonomy. First, the much more open and globally influenced construction of post-­ ascriptive identities. This does not mean that people can simply choose who they are. They can however more freely draw upon previous social memories in which their identities find support and creatively re-fashion and combine them with information coming from other parts of the world. This is as much an internal as a directly global process, for frontiers are rather porous, especially in ‘cultural’ terms (to make use of a native modern category). It is partly managed by the nation-state. This sort of re-embedding may, more dangerously, entail an attempt at misrecognition and at hardening somehow essentialized identities. This is what has happened with radical political Islamism.30 Finally, what some have called a ‘global civil society’ underwent some expansion, relating to those emerging para-state organizations. Social movements and fora, advocacy networks and global Non-Governmental Organizations (NGOs), have become a reality in global politics. Social movements and NGOs can be based in different countries and still address mainly nation-states; they may be not so globalized and still address mainly international organizations. Or they can do both. Additionally, sometimes social movements and NGOs bank on the contradictions between states in global organizations to further their complaints and demands.31

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This is surely not an absolute novelty. Socialist, communist and nationalist movements previously projected something similar, counting on centralized and hierarchical structures. The plurality and fluidity of this new ‘civil society’ is a further expression, at the planetary and collective levels, of the processes of autonomization we identified as a crucial aspect of modern political trends. It lends shape to an incipient global societal political system, however weak, actually much weaker than its state and para-­ state counterpart, and extant in considerable measure within territorial states. It is likely, and somewhat encouraging, that it will expand in the decades to come, surely tackling human rights, but also many other issues. The environment has been at its core and perhaps other topics, beyond the liberal cosmopolitan imagination, which today do not usually come up in global fora will become more relevant for it in the future. Some would like to think of global citizenship as emerging from this developmental trend. Yet at most it is a global feeling, a yearning in this direction, that has been aired. Either way, global movements more easily arise when they are based or can count on countries where citizenship and rights, in the bounds of liberalism, have been established. This development may strengthen on the other hand precisely the overflowing of autonomy in relation to citizenship and the nation-state, at both the global and the national levels. All things considered, the nation-state still is, however, increasingly cut off from the citizenry, by far the dimension where societal agents can exercise greater influence.

7.4   Mechanisms at the Global Level We now need to further understand which and how agents have propelled the development of sovereignty in its different expressions and globally enhanced the reach of human rights, that is, the mechanisms that underpin these processes. Great care is needed to avoid the reification of states as collective subjectivities. They are internally plural; their centring is contingent on a number of factors and subject to the influence of other states and external agents, although they may move towards the outside with a reasonable level of centring and intentionality, that is, as considerably unitary agents. In terms of generative mechanisms, we may initially resume here Elias’ account, examined in Chap. 5. Competition between feudal lords led to a situation in which few survived. In tandem with other factors, this engendered the Absolutist state of late medieval Europe.32 Sovereignty underwent

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a complex evolution, in the course of which it became centralized. Ideologically and practically, great kings and state feudal nobility, as well as the ascending bourgeoisie and intellectuals initially engaged especially by the former, played a decisive role in the establishment of sovereignty and the modern state. Their collective moves across Europe consisted in the main generative mechanism of this proto-modern social reality. Agents partly changed afterwards. Bourgeois and popular agents, led by and alongside emerging political collectivities that eventually built the differentiated modern political dimension, pushed the process further. Systematic as it is, Elias’ unilinear evolutionism is also defective. There were other, alternative political arrangements at the time—such as city-­ states and city-leagues. He overlooked them. In the long haul, sovereign states proved better equipped not only in terms of warring capability, they were better adapted as ‘power-containers’ on the whole. In their initial incarnation as Absolutist states, they were better at decision-making and enforcement, due to the centralization of administration and justice within clear-cut boundaries. At that point we can say that concentration of power directly in the hands of the personal sovereign was productive. Their increasing success led agents in the region—the sole place where these states emerged—to draw upon each other’s institutions. As they consolidated, such states became the model of what political unites should be. This eventually led to a system of sovereign states premised on mutual recognition. They contingently proved better at evolutionary adaptation to new social conditions. Agents had no definite blueprint in mind. When they had one, this did not always and thoroughly succeed.33 The outcome is the one we know. Hindsight must not entail teleology. Even path dependency is not unqualified. Above all, to re-state a point already made, this outcome does not at all mean that only in that particular Eurasian region ‘civilized’ mores came about. Nor were these two sorts of development— change of mores and state-building—so closely connected, contrary to Elias’ absurd hypothesis. Not only institutions mattered, though. Ruling collectivities of all sorts, as well as ruled ones, built their identities around national imaginaries and feelings, as seen in Chap. 3. Absolutist states were at the roots of this sort of national development, homogenizing their ‘societies’, through administration, law, language, institutions, specific values, that is, through selectively shared social memories. This was to a large extent a reality of their own making. While we must avoid reductionism, cohesion at this stage did correspond to ‘ideological power’, as realists like to suggest. This

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eventually included what Weber described as the feelings of superiority attached to national prestige, especially among those pertaining to large countries.34 Mainly from above, partly from below, nationalism was connected to the idea of sovereignty. It was uplifted by military prowess and territorial conquest. This was accompanied by feelings of general national supremacy, which may of course be linked to economic power and cultural primacy. Today nationalism depends on those last two elements more exclusively, warring capabilities (and their exercise from time to time) lingering on as an element that contributes to national pride and possibly ultimate intervention. Rejection of foreigners and immigration can also contribute to the reaffirmation of sovereignty as self-assertion. Thereby migrants of diverse sorts, including refugees, remain excluded from citizenship and full participation, especially in political terms, often from social as well as even from basic civil rights. If these are features distributed across the nation, with political agents excelling in their cultivation, impulses originating in the bureaucracy, military or civilian (including diplomacy), may be a component in the affirmation of sovereignty. These would include interests of a pecuniary nature. Others concern comfort, prestige, alongside authentic beliefs held by public officials regarding the global standing of country and nation. More generally, we discussed this in Chap. 6. In addition, sovereignty finds legitimacy in autonomous collective decision making by citizens and the rejection of foreign and foreigners’ influence over internal affairs and ways of life, often involving, though not necessarily, ugly ideas and attitudes, that is, bigotry. Last but not least, in a world of sovereign states, all countries emerging from de-colonization looked forward to having their own state apparatus and national identity, their own sovereign right to lead a life of their own, their own way. After so much devastation let loose by global military conflicts, in the last decades, this has been limited by the recognition of the effects of all-­ out war. Even the Cold War, with its nuclear menace, implied open conflict only, as brutal as they might be, in peripheral areas of the world. There has also been an intensification of interdependency,35 practically bringing societies and states closer to each other. This induced ruling political collectivities and the bureaucracies of national and international organizations, with the support of several societal collectivities, to bet on the limitation of sovereignty. That is to say, there is now more to lose than to gain from sovereignty conflicts, or, better still, more to gain from smoothly run joint-ventures, against losses with military conflicts. Only when there are

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extreme disparities in military force and it is fought distant from their own territory is war sometimes worth for great powers, if they can somehow justify it internally and externally. War cannot now usually lead to territorial conquest and the problems this might create are excessively complicated. The danger of nuclear conflict since 1945 is also real and populations have preferred to avoid conflicts, again except, to some extent, if these occur far from home and are sold with strong justificatory arguments. These have been related, in particular, to internal security. Such elements respond for the workings of reiterative mechanisms, which have nonetheless evolved: sovereignty has been reiterated, but has not remained immutable. It was evidently impacted by other globalizing phenomena which increasingly cut across national borders, including globalized capitalism. If we turn to human rights and autonomy, we encounter phenomena similar to what we saw in the previous chapter. The imaginary of autonomy and freedom is vital here, to some extent at a more basic level in what concerns human rights, that is, with an emphasis on the dignity of human beings that underpins the very demand of autonomy. Despite the tendency of great powers and all states by and large to try and manipulate these core values to their benefit, these tend to find support across state and society, the contradictions that may surface when actual issues are at stake notwithstanding. At the same time, popular mobilization is a mounting ingredient of global politics, with restless and dissatisfied citizens gradually directing their gaze to the global scalar dimension of political systems. Yet we are still far from devising manners in which this restlessness can really impact on—against, in fact—the alarming developments implied by the state-shared concentration of power and changes in its logic away from the ‘dialectics of control’ from below and its internal responsibilities towards citizens, entailing a definite enfeeblement of emancipatory possibilities. If we seem to be in dire straits right now, social restlessness evinces that equal freedom demands are in any case being transplanted onto the global arena. Critical theory may bet on it to carry on with its job.

7.5   Global Modernity, Domination and Emancipation With the emergence of the West at the centre of global power, it was not exactly the development of an ‘anarchical society’ that took place, contrary to a Hobbesian perspective. Global rules have been created, giving rise to an ‘international society’, as Bull took pains to suggest. Late Iberian scho-

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lastic and Renaissance authors, such as Vitoria, Suárez, Pufendorf and Grotius, played a key role in the process, some reaffirming natural law, others stressing the role of the sovereign will. The relations between European states were juridically very elaborate at this point, beyond the medieval Christian ecumene. Universal ‘natural law’ was supplemented by the more empirical ‘law of nations’. Such doctrines recognized the omnipresence of war. Intentionally and sometimes even against their views, they set parameters justifying the evolving European domination of the world. Initially this touched in particular the new ‘found’ America, where it wrought havoc in the then existing civilizations, despite qualms by some neo-scholastic Iberian thinkers. Soon enough, a transition from this short-­ lived tradition to a specifically modern one occurred, with the surge of ‘international law’ and ‘international jurisprudence’ proper. The territorial sovereign state alone was the legal agent in this new perspective, as defined by such lawyers and philosophers as Vattel and Bentham. Moreover, once modern nation-states were established, a bifurcation in international law occurred. As to European powers and the US, it was formally outlined according to a more rigorous and respectful framework. This was laid down by common civilization and a set of basic norms and institutions (sovereignty, liberalism, the balance of power, diplomacy), even though war was allowed without even further justification, beyond ius justum bellum, its former ideal outline. The rest of the world was marked out in openly colonial terms and short of western standards. Liberal laws applying to Europe and the US had no validity in the colonies, including those regarding life, freedom and property. Free trade was a banner Europeans raised to justify conquest and encroachment, with little concern outside the West and its American offspring for the dual nature of state and society such as studied in the first part of this book.36 The colonial state had a degree of ruthless autonomy it could not display in the western ‘civilized’ world, although managing by colonial administrators usually had to take into account natives’ feelings and views, as well as correlations of forces on the ground. It mobilized in particular faintly differentiated repressive and war-waging power—force and violence capabilities, despotically—to enforce its rule, alongside legal production and taxation. Things changed slowly towards some uneven level of moulding towards the end of the nineteenth century without radically altering the general framework. Indirect rule often applied: local power was exercised by so-called traditional chiefs, especially in Africa. Only subjects, with no rights, inhabited those large swaths of the world either colonized or under

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intense pressure from European colonial powers, notwithstanding piecemeal and insufficient changes basically in the twentieth century. Modern ‘municipal’ law (national, that is to say) was sharply confined to the centre of the system and to citizens from central countries in the colonies. With reason conveniently regarded as absent or feeble in the periphery, there was no need to think of anything resembling citizenship until close to the end of colonial domination.37 Latin America’s independence was mostly achieved early in the nineteenth century. It consisted to a great extent in an offshoot of European expansion, occupying a somewhat ambiguous position in this regard. Stringent internal reverberations opposed European ‘civilization’ to local ‘barbarism’, an issue that has come up, time and again, in the development of its nation-states. Some are wont to treat this in terms of ‘internal colonialism’, with the successors of Europeans continuously dominating and exploiting indigenous peoples’ successors. On closer inspection, we may doubt the reach or, conversely, the specificity of this veritable Latin American concept. Nation-states were all created to some extent this way, with the expansion of the centre over formerly independent areas and the latter’s eventual exploitation. They stem from the conquest of different ethnic groups by a dominant ‘ethnie’, as we saw in Chap. 3, either before or even after the constitution of the nation-state. Linguistic and even ‘racial’ distinctions have been found everywhere, although skin colour and phenotypes did not differ much especially in Europe. This does not make the process more beautiful or less wicked. It should however entail a reformulation of the concept of ‘internal colonialism’ to lend it greater universality as an only partly specific form of state and nation-building.38 During the emergence of modern civilization proper and in the course of the first phase of modernity, liberal at the centre, its main expression in parts of the periphery was colonialism. In its second phase, especially by the mid-twentieth century, this was over. In a relatively quick process, new countries broke their colonial shackles. Western mores and rules remain the reference for the organization of the international system of states, something deepened in this third phase, in the bounds of which we now live. To start with, we live precisely in a system of sovereign states in which human rights have become increasingly relevant, regardless of whether especially China and Asian countries more generally comply with this only out of expediency. In particular, almost without exception, all former western colonies achieved independence and built their states, even though many issues concerning the domination of populations that want

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independence remain explosive across the world, European powers still have some enclaves around the globe and US military bases are everywhere to be found. ‘International society’ has become a truly global phenomenon and so has the global political system. They encompass such important civilizations as the Sinic and the Indic, regardless of efforts within Islamicate areas to come up with distinct approaches to the organization of political power. They are all modernized; otherness is now internal to this civilization, which is no longer simply western. The modern nation-state, or the multi-ethnic national state, according to some, has triumphed. This means that we play by the rules of modernity both inside and outside nation-states, a differentiation that must as such be taken as relative. This does not detract from specific routes, adaptations, hybridizations, attempts at deviation or innovation, on the contrary. Modernity is a global and heterogeneous phenomenon, as we can see with the particularities it has assumed in countries as different as Brazil, Mexico, China, India, Thailand, Angola, Tunisia or Saudi Arabia. Western central countries’ domination has not however abated, with Japan joining their club in a politically subordinated position, despite its imperial ventures from the nineteenth to the mid-twentieth century. These hierarchies are far from being overcome, pace relentless efforts by other areas and countries, in different moments and forms, to counter it. There are, if we look close at it, changes in the way it is structured, whether we speak of imperialism, empire, or believe that a new category is required, since sovereignty is not formally denied to political units in the global system. US pre-eminence depends on more networked relations due to greater global complexity as well as, in a more traditional vein, on the looming threat of military force. Meanwhile, Russia’s position remains dubious, whereas China strives to push forward as hard as possible, without challenging the structure of the international system.39 Political modernity is a global phenomenon, centred around the modern state and its interstate projections, comprising the political aspects of the societal side of the modern divide. The abstract citizen and the abstract state, increasingly impacted by concreteness, have triumphed. Their generative mechanisms were somewhat distinct, double we may say: as a reality and an already accomplished hegemonic idea the state and emancipatory projects replicated western and Latin American undertakings in Asia and Africa.40 Its reiterative developments may, besides, have specificities, connected to particular turns and hybridizations. These may powerfully

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impact on how autonomous political power and domination are perceived and freedom phrased in each civilizational area and singular countries in the modern global system. This also means that transformative mechanisms may be different as well, depending on those other civilizational elements, institutional and imaginary, that are present in the concrete paths taken by global modernity. There is no definite rule of development leading us away from modernity, beyond contingent paths and variable outcomes. That said, modernity has been felt in many places mostly as state domination. It has projected it, with its global historical novelty, all over the planet, without respect for any imagined social pact between citizens. This implied a much more unilateral way than the more nuanced process that unfolded in the West, and even in Latin America to some good extent. It is bound to remain a driving force in the decades to come, with the imperative of rational expediency taken to even more severe levels. Formal participation globally, regarding international organizations, is basically non-existent, and political rights remain a non-issue. At a more basic level, the exclusion of migrants from citizenship deprives national political systems of the participation of increasingly sizeable populations, either in the West or elsewhere. Whether liberalism, past its expansive phase, only partly operative in the non-western periphery in any event, though potent in some cases (cf. India), can do the trick, reverting such a situation and at the same renewing itself must stay here as, at best, a mute question. If we however somehow hold autonomy and equal freedom as important values and creations of modernity with universal validity, they must be present in social and political movements we can conceive of as emancipatory. Otherwise we will be buying into some other form of domination and its imaginary of justification, reinforcing state power. Autonomy and equal freedom may surely be hybridized with other values, stemming from other civilizational sources. We must especially go beyond the mostly formal aspect of the latter such as it appeared in modernity as well as beyond accommodation, with forms of domination stemming from other civilizational sources, whether milder or tougher. Can they be simply jettisoned? We should not allow ourselves to confuse the criticism of modernity and state power, colonialism and western dominance, with the rejection of the achievements the first has implied, and especially those it can still generate, beyond its one-sided development. Many other issues must be faced, of course, such as our relation with nature and new spiritual paths, in a broad sense. In this regard, other civilizational elements may be far more relevant.

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History is open and likely to bring about deeper social change, only if we are able to tackle these issues at least partly at the global level. In what matters to us more directly here, broadening the scope of political modernity towards emancipation is surely of the essence.

Notes 1. Hans J. Morgenthau, Politics among Nations: The Struggle for Power and Peace (New York: Alfred A. Knopf, [1949] 1967), especially pp. 97, 106– 58; Kenneth N.  Waltz, Man, the State and War (New York: Columbia University Press, [1959] 2001), chaps. 1–3. 2. Hedley Bull, The Anarchical Society: A Study of Order in World Politics (New York: Columbia University Press, 1977). A critique of realism within a more limited view of ‘regimes’ of rules implying interdependence (frequently asymmetrical and not entailing cooperation) is found in Robert O. Keohane and Joseph S. Nye, Power and Interdependence: World Politics in Transition (Boston and Toronto: Little, Brown and Co., 1977). 3. Jens Battleson, A Genealogy of Sovereignty (Cambridge: Cambridge University Press, 1995); Gary Wilder, The French Imperial Nation-State: Negritude and Colonial Humanism between the World Wars (Chicago: The University of Chicago Press, 2005); Jean L.  Cohen, Globalization and Sovereignty: Rethinking Legality, Legitimacy, and Constitutionalism (Cambridge: Cambridge University Press, 2012); Krishan Kumar, Visions of Empire: How Five Imperial Regimes Shaped the World (Princeton, NY: Princeton University Press, 2017). 4. John Austin, The Province of Jurisprudence Determined (Cambridge: Cambridge University Press, [1832, 1861, 1885] 1995), Lecture VI, pp. 1117ff. 5. Emer de Vattel, Les Droits des gents, ou principes de la loi naturel, appliqué a la conduit et aux affaires des Nations et Souverains (London: Liberus Tutior, 1758), vol. 1, pp.  9, 18–19, 6; vol. 2, pp.  1–2; Georg Wilhelm Friedrich Hegel, Grundlinien der Philosophie des Rechts (1820), in Werke, vol. 7 (Frankfurt am Main: Suhrkamp, 1986), §§ 211–40, pp. 490–503. In Grotius’ view of the ‘law of nations’, sovereignty was the ‘moral power’ of governing a state, that ‘perfect association of free men’, in its three branches—legislative, executive, judicial. It included war and peace-making powers, unimpeded by any other human will, internal or external. Private individuals still could, under certain circumstances, make war against foreign states. Hugo Grotius, The Rights of War and Peace (Indianapolis, IN: Liberty Fund, [1625, 1646] 2005), Book I, chap. 3.4. The complex relations of his ideas to colonialism, especially concerning

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dominium and imperium (or ‘rule’ in some translations), as well as the validity of natural law everywhere but, in turn, also the untroubled acceptance of slavery in a just society (especially Book I, chap. 4, Book III, chaps. 7–8) are other elements to be taken into account. 6. Cohen, op. cit. 7. Daniel Chernillo, A Social Theory of the Nation-State: The Political Forms of Modernity beyond Methodological Nationalism (London and New  York: Routledge, 2007). 8. Saskia Sassen, A Sociology of Globalization (New York: W.  W. Norton & Cia., 2006), pp. 14ff. 9. Manuel Castells, The Power of Identity: The Information Age: Economy, Society and Culture, vol. 2 (Malden, MA and Oxford: Blackwell, [1997] 2004), pp. 356ff. 10. See Renée C. van der Hulst, ‘Terrorist networks: the threat of connectivity’, in John Scott and Peter J.  Cunington (eds), The Sage Handbook of Network Analysis (London: Sage, 2011); Walter Endlers and Todd Sandlers, The Political Economy of Terrorism (Cambridge: Cambridge University Press, [2006] 2012). 11. Peter D. Scott, The Road to 9/11: Wealth, Empire, and the Truth of America (Berkeley and Los Angeles: University of California Press, 2007); Eric Wilson (ed.), The Dual Parapolitics, Carl Schmitt and the National Security Complex (Surrey and Burlington, VT: Ashgate, 2012). 12. John Torpey, The Invention of the Passport: Surveillance, Citizenship and the State (Cambridge: Cambridge University Press, 2000); S. Sassen, Losing Control: Sovereignty in the Age of Globalization (New York: Columbia, 1996), chap. 3. 13. Laurence Cockcroft, Global Corruption: Money, Power and Ethics in the Global World (London: I. B. Taurus, 2013). 14. The idea that international law could be equivalent to a basic norm to which national constitutions somehow correspond and adjust, with interstate violence as the expression of sanctions for its violation, leads to convoluted reasonings and hardly makes sense, for instance, in Hans Kelsen, Reine Rechtslehre. Einführung in der rechtswissenschaftliche Problematik (Stuttgart: Franz Steiner, [1945] 2009), chap. 7. Simply speaking of a global (or ‘transnational’) ‘constitution’ bereft of properly defined norms does not suffice either, contrary to Christopher Thornhill, A Sociology of Transnational Constitutions: Social Foundations of the Post-National Legal Structure (Cambridge: Cambridge University Press, 2016), p. 7. It is more adequate to think of international law as a ‘set of rules’ with similar elements, which need, however, to be precisely identified regarding ‘rules of recognition’. Herbert L.  A. Hart, The Concept of Law (Oxford: Oxford University Press, [1961] 1994), chap. 10. For the actual limitation of sov-

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ereignty, see Gunther Teubner, Verfassungsfragmente. Gesellschaftlicher Konstitutionalismus in der Globalisierug (Frankfurt am Main: Suhrkamp, 2012), pp.  21–31. His idea of ‘societal constitutions’ in an increasingly complex global society (pp. 13ff), based on a theory of self-referential systems, begs too many questions, though. 15. Cohen, op. cit., pp.  5, 26–27; David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Cambridge: Polity, 1995), chaps. 1–6, 12; Rob B. Walker, Inside/Outside: International Relations as Political Theory (Cambridge: Cambridge University Press, 1993); Hauke Brunkhorst, Critical Theory of Legal Revolutions: Evolutionary Perspectives (New York and London: Bloomsbury, 2014), chap. 3. I refrain from using the term ‘governance’ due to its vague and problematic definitions. Claus Offe, ‘Governance: an empty signifier?’, Constellations, vol. 16 (2009). 16. Antonio Gramsci, Quaderni del carcere (Turin: Einaudi, [1929–35] 2001), vol. 2, pp. 964–65; vol. 3, pp. 1562–63, 1618, 1628–29; René Zavaleta Mercado, ‘Problemas de determinación dependiente y la forma primordial’ (1979), in El Estado en América Latina (Cochabamba and La Paz: Los Amigos del Libro, 1990), pp. 128–30; Robert Cox, ‘Gramsci, hegemony, and international relations: an essay on method’ (1983), in Approaches to World Order (Cambridge: Cambridge University Press, 1996). The concept of hegemony employed here differs from the more usual one in international relations theory used to speak of the overwhelming power, in very material terms, of a single state. For ‘soft power’, see J.  S. Nye, ‘Soft power’, Foreign Policy, no. 80, autumn (1990). 17. Amazingly, considering its importance, the World Bank has been poorly studied. See, that notwithstanding, João Marcio Mendes Pereira, O Banco Mundial como ator político, intelectual e financeiro (Rio de Janeiro: Civilização Brasileira, 2011); José Maurício Domingues, ‘Social liberalism and global domination’  (2013), in Breno Bringel and Heriberto Cairo (eds), Critical Geopolitics and Regional Reconfigurations: Interregionalism and Transnationalism between Latin America and Europe (New York and London: Routledge, forthcoming). 18. S. Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton, NJ: Princeton University Press, [2001] 2006, updated edition). She thinks these are powerful ‘trends’, which she describes empirically, while trying to grasp them through an ‘analytics’ concerned with ‘tipping points’ and ‘foundational changes’ (pp. 9–16). 19. G. Teubner, ‘Breaking frames: economic globalization and the emergence of lex mercatoria’, European Journal of Social Theory, vol. 5 (2002). 20. In this respect, dependency theory is still valid, especially Fernando Henrique Cardoso and Enzo Faletto, Dependencia y desarrollo en América

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Latina. Ensayo de interpretación sociológica (Mexico: Siglo XXI, [1969] 1972). World systems theory resumed its main ideas, with a reductive stress on the state and featuring ‘core’ instead of ‘central’ countries. Immanuel Wallerstein, The Modern World System, vols 1–3 (New York: Academic Press, 1974, 1980, 1989). I have revised these concepts especially in J.  M. Domingues Global Modernity, Development, and Contemporary Civilization: Towards a Renewal of Critical Theory (New York and London: Routledge, 2012); Idem, Desarrollo, periferia y semiperiferia en la tercera fase de la modernidad global (Buenos Aires: CLACSO, 2012). 21. Bull, op. cit., pp. 20, 276–78. 22. For classical works, see Claus von Clausewitz, Vom Krieg (Bonn: Dümmler, [1832] 1991); Morgenthau, op. cit. In sociology, Michael Mann, The Sources of Social Power, vol. 2. The Rise of Classes and Nation-States, 1760–1914 (Cambridge: Cambridge University Press, 1993), chaps. 11, 12; Anthony Giddens, The Nation State and Violence (Cambridge: Polity, 1985), chap. 9; Hans Joas and Wolfgang Knöbl, Kriegsverdrängung. Ein Problem in der Geschichte Sozialtheorie (Frankfurt am Main: Suhramp, 2008). 23. S. Sassen, Losing Control?; Seyla Benhabib, The Rights of Others (Cambridge: Cambridge University Press, 2004). 24. Richard Falk, Human Rights Horizon: The Pursuit of Justice in a Globalizing World (New York and London: Routledge, 2002), Part 1 for conceptual matters; Cohen, op. cit., pp. 176, 208ff. She opts for a dualist approach, rejecting a monist view of constitutionalization of international law and the Pandora’s box of R2P, such as conceived in an expansive and unspecified fashion. 25. Idem, pp. 164, 195ff, 196ff. See also Breno Bringel and J. M. Domingues (eds), Global Modernity and Social Contestation (London and New Delhi: Sage, 2015), where this is discussed in a number of chapters, particularly concerning Argentina; and, from a top-down/bottom-up and regionally based movement, featuring Argentina and South Africa, Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions are Changing World Politics (New York: W.W. Norton & Company, 2011). 26. Immanuel Kant, Idee zu einer allgemeinen Geschichte in weltbürgerlicher Absicht (1784), in Werke, vol. 11 (Frankfurt am Main: Suhrkamp, 1977). See also, for the foremost representative of the view, with a direct relation to human rights, Jürgen Habermas, Die Einbeziehung des Anderes. Studien zur politischen Theorie (Frankfurt am Main: Suhrkamp, 1996). 27. Edward Keene, Beyond Anarchical Society: Grotius, Colonialism and Order in World Politics (Cambridge: Cambridge University Press, 2002), pp. 148–49; Joaquín Herrera Flores, Los derechos humanos como productos culturales. Crítica del humanismo abstracto (Madrid: Catarata, 2005).

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28. A problem incurred in by Nancy Fraser, Scales of Justice: Reimagining Political Space in a Globalized World (New York: Columbia University Press, 2009). 29. Brunkhorst, Critical Theory of Legal Revolutions, pp.  321–22, 362, 422–24. 30. Idem, Modernity Reconstructed, chaps. 1–2; Global Modernity, Development, and Contemporary Civilization, Part II. 31. Mary Kaldor, Global Civil Society: An Answer to War (Cambridge: Polity Press, 2003); Enara Echart Muñoz, Movimientos sociales y relaciones internacionales. La irrupción de un nuevo actor (Madrid: IUCD and Catarata, 2008). 32. Norbert Elias, The Civilizing Process (Malden, MA and Oxford: Blackwell, [1939] 2000), pp. 260–61ff. 33. Hendrik Spruyt, The Sovereign State and its Competitors: An Analysis of System Change (Princeton, NJ: Princeton University Press, 1994), chap. 8 and pp. 188–94. 34. Mann, op. cit., chaps. 2, 11; Max Weber, Wirtschaft und Gesellschaft. Grundriβ der verstehenden Soziologie (Tübingen: J.  C. B Mohr [Paul Siebeck], [1921–22] 1980), pp. 520–21. Foreign policy engages several societal collectivities and their state crystallizations, as Mann notes for the nineteenth century (pp. 71ff, 87–88). 35. This was another mechanism suggested in Elias, op. cit., pp. 314–20, 365– 73, 412, 436–37. 36. Bull, op. cit.; Keene, op. cit.; Carl Schmitt, Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum (Berlin: Duncker & Humblot, [1950] 1974); Nicolas Onuff, ‘“Tainted by contingency”: retelling the story of international law’ (1995), in International Legal Theory: Essays and Engagements, 1966–2006 (New York and London: Routledge, 2008). Hegel (op. cit., § 339, p.  502) observed that at least Europeans built a ‘family’ according to the ‘general principles’ of their legislation, mores and education, with consequences for the ‘law of nations’. Other regions, it goes without saying, were excluded therefrom, irrespective of a purportedly positive, albeit veiled, impact of the Haitian revolution in his early works. If Bull’s ‘international society’ is institutionally very thin (despite participants sharing in a common civilization), Schmitt grudgingly mused on the changes we will discuss below, contemplating the emergence of the US and hoping his own embraced Nazi regime could come to an agreement with that emergent massive global power. 37. Bertrand Badie, L’Etat importé. Essai sur la occidentalización d’ordre politique (Paris: Fayard, 1992); J. M. Domingues, ‘Globalização, reflexividade e justiça’ (2002), in Ensaios de sociologia (Belo Horizonte: Editora UFMG, 2003); Global Modernity, Development, and Contemporary Civilization.

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38. Sociology has given extremely short shrift to colonialism. The foremost exception was Georg Balandier, ‘La situation colonial: approache théorique’, Cahiers internationaux de sociologie, vol. 11 (1951). Marxism was more attentive to colonialism, war and other ugly modern phenomena, especially since Vladimir I.  Lenin, Imperialism, the Highest Stage of Capitalism: A Popular Outline, in Collected Works, vol. 22 (Moscow: Progress Publishers, [1917] 1964). For ‘internal colonialism’, see Pablo González Casanova, ‘Internal colonialism and national development’, Studies in Comparative International Development, vol. 1 (1965); Rodolfo Stavenhagen, ‘Classes, colonialism and acculturation’, Studies in Comparative International Development, vol. 1 (1965). Apparently unaware of this Latin American strand, check also Eugen Weber, Peasants into Frenchmen: The Modernization of Rural France, 1870–1914 (Stanford, CA: Stanford University Press, 1976). 39. H.  Bull and Adam Watson (eds), The Expansion of International Society (Oxford: Oxford University Press, 1985); Domingues, Global Modernity, Development, and Contemporary Civilization. 40. Sudpita Kaviraj, ‘A state of contradictions: the post-colonial state in India’ (2003), in The Imaginary of India: Politics and Ideas (New York: Columbia University Press, 2010), pp. 210–11. This implies particular attention to the expansion of juridical-political real abstractions, beyond a reductionist opposition between abstract capital and concrete, differential culture (Histories 1 and 2), though he correctly maintains the emancipatory perspective initiated by the Enlightenment, such as put forward by Dipesh Chakrabarty, Provincializing Europe: Post-Colonial Thought and Historical Difference (Princeton, NJ: Princeton University Press, [2000] 2007).

PART III

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CHAPTER 8

Regimes

8.1   Models and the Analytical Strategy We have established in Chap. 4 the analytical elements of political systems. They include the state-based and the societal sides of political processes as well as the mediators connecting them. We will draw upon that analytical definitions of the political system and of state more generally so as to move towards an analytical categorization of political regimes. Generally speaking, any modern political regime is characterized by and depends on the split nature of political modernity. Like political systems, of which they are more concrete expressions, political regimes have a state-based and a societal side, which mediators bridge, with access, sometimes skewed, to both. They also depend on their overall connection with the state, beyond the political system strictly defined, and they all share the liberal juridical infrastructure, even in a borderline case such as that of Nazism. My goal is not to discuss political systems in any empirical detail. Nor shall we go back to the Greeks or to the early modern reception of Aristotle’s work and prior Greek thinkers on ‘forms of government’ in such authors as Bodin, Machiavelli and Montesquieu, featuring isonomy and democracy, oligarchy and aristocracy, monarchy, republic and tyranny in diverse phrasings and combinations. Yet the classical theme of the rule of the one, the few and the many will cut across this and the next chapter.

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What I shall propose here are analytical models of modern political regimes. A model is so defined because it works at a level of generality lower than the more general analytical theory built in the former parts of this book. The transition from the latter to the former is partly deductive: a model is conceptually derived from the systematic analytical exposition. Yet intermediate material is introduced under the guise of analytical elements that allows for formulations that address levels more closely related to empirical reality. This can then be directly analysed once the models are available. In a broad sense the demarche implies an open syllogism of the following type: (1) regimes are specific forms of political system, which count on the legal liberal infrastructure and the modern state; (2) political systems include such and such elements, analytically defined; (3) specific political systems have such and such characteristics, which mean the more concrete expression of those elements, alongside other features of political modernity. We remain, therefore, at an analytical level throughout, albeit lower in the theoretical scale. This is opposed to ideal-typical approaches, which evince a fundamentally empirical character. They generalize from or select a few or even one case, and then exaggerate their or its features to craft a pure concept, hence ideal-typical. This must then to be confronted with reality. The classification of regimes I shall suggest below is analytical rather than ideal-typical, which populates discussions about regimes, though this is often done in a very unspecific or unspecified way. The models proposed with analytical character are on the other hand empirically oriented and infused with a normative slant that depends on immanent critique.1

8.2   Political Modernity and Multiple Social Trends Thus far in this book, we have consistently refrained from venturing into the multidimensionality of social life. This was a decision taken due to analytical purposes and because political modernity is a realm in its own. Henceforth, the goal will remain the same, namely, to grasp analytically the specific features of political modernity. At this point of greater concreteness, however, other questions inevitably posed by social life and organized in specific social systems have a manifest impact on the political dimension. We must account for them in order that we properly understand political regimes and build balanced models.

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We must first reckon with the issue at a more general level. I have argued elsewhere that humanity inevitably has to deal with a few crucial social existential questions: the need to interact with nature and produce material life; to reproduce the species, which includes sexuality and kinship patterns; to create meaning, implying different sorts of imaginary; and, finally, organize and distribute power. Political modernity is mainly related to the latter, but those other questions are intrinsic to its developments too.2 In modernity, capitalism, the conjugal (or nuclear) family, individualization, the modern political divide between state and society, intertwined with many other less general elements, pattern how social existential questions are answered, including hybridizations with other civilizational heritages. Capitalism and classes vary a lot regionally and from country to country, also hinging on what specific mode of accumulation and regime of regulation we find in each of them and on whether they lie at the centre, the semi-periphery or the periphery of the global system. Castes, such as in India, may be crucial. Families and sexuality are important and, although a modernizing trend is under way and there is a certain level of ‘convergence’ of patterns across the planet, previous civilizational types of family—and of sexuality—do not lose their grip. What modernity has defined as ‘religion’ (an idea that only makes sense vis-à-vis ‘secularization’) remains of paramount importance, with actually the whole imaginary of distinct modern societies impacting political modernity in its more concrete workings. Finance capital has lately reached such a level of prominence and influence in relation to political systems, its crystallization in the state and capacity to influence societal dynamics and global politics so pervasive, that any discussion of specific political regimes has inevitably to grapple with it. Astonishingly, Streek has been almost alone in his effort to a­dequately wrestle with this task.3 A systematic model of political regime has not emerged in this regard. We need to ask about the overwhelming global power of economic oligopolies and, above all, finance capital and whether and how they have contributed to the emergence of a new sort of regime. I have called it advanced liberal oligarchy. We shall soon examine it. It is however necessary to guard against the danger of connecting too closely the societal dynamic of split political modernity to specific sorts of regimes, as if a direct causality between the two stemmed from the former. Marxist authors ill-advisedly took this route time and again. If the Third International’s definition of fascism as the ‘open terrorist dictatorship’ regime of the ‘most reactionary, most chauvinist and most imperialist elements of

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finance capital’ anticipated this approach, in this case with some substantive reason and leading to a ‘united front’ against fascism, analysis of state fascism in Latin America in the 1960s–1970s was even more reductive, with disastrous political consequences. Some supposed that the armed struggle was the only option in the fight against military dictatorships, since they were rooted in and responded to a situation of dependency and inevitable radical exploitation of labour. No united front was possible or necessary. Transitions to ­liberal democracy, without changes in the economy, showed how wrong this assessment was.4 In India, similar problems beset the understanding of Hindutva (the Hindu right), often and wrongly understood as traditionally fascist, which tried and eventually managed to substitute what Marxists frequently considered the country’s ‘intermediate regime’ (featuring small and medium business) by globalized neoliberalism. Hindutva actually constitutes a right-wing nationalist, specific sort of political formation, yet it is different from fascism.5 We have to keep our eyes wide open to the political specificities of modernity. Besides, economic forms can adapt to many different regimes and press them to answer to their needs. This mars also Crouch’s view of ‘post-democracy’. Insightful and addressed directly to the shortcomings of the present as it is, his approach shows little concerned with institutions and political dynamics as such. His argument loosely hinges on the links between state and upper classes as well as on the loss of social rights and related policies.6 While this is in itself absolutely true, what I aim at here is the analysis of the political dimension proper and the regimes through which it assumes specific forms.

8.3   The Constitution of Regimes 8.3.1  Elements7 We will resume now the elements of the political system formerly laid out in Chap. 4. At this more empirically oriented level of analysis, we will need to add to them more specific, intermediate analytical elements, whereby we can craft a full analytical model of political regimes. We can range these elements in three analytical clusters. First, in the societal political system, the elements of the analytical model include societal processes of political organization of varied types, inwardly oriented and producing outputs that are transplanted onto the state political system through processes of mediation. The forms and direction of organization and mobilization within societal life are one

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aspect thereof, and so is the projection of this process into the political realm. The model must further refer to the overall legal liberal framework, regarding reach and depth, partly emerging from society but crystallized in the state and superimposed henceforth onto the former. The whole of social life underpins the workings of the societal political system, comprising underlying social trends, institutions, practices and imaginary elements. Several sorts of collective subjectivities and cooperation as well as antagonism between them are to be found in the societal political system. Second, in the state political system, the definition of governmental and legislative rules has pride of place. Rules are procedural, formal and informal, setting the possibilities, ways and limits for governmental exercise and law making, including the relation between executive, legislative and, its ostensible independence notwithstanding, the judiciary. The choice of forms of ­government—parliamentarism, presidentialism, monarchy, ‘mixed regimes’— features therein. Levels and forms of individual and collective citizen participation and mobilization within the state political system are other elements that go into the model. They may be high or minimal, and more or less controlled from above. Add to this the levels of centralization of politics and administration. In the state political system, we must further include rules and practices, both formal and informal, of the relations of the political system with the state bureaucratic machinery (contributing to ‘withinputs’). Although this is not the most common occurrence, bureaucrats may even constitute the core of the political system. Armed forces in military dictatorships exemplify this, ‘technocrats’ often featuring in the same vein in more than one sort of regime. In fascist regimes or the like, the political police and other repressive forces, with terror oftentimes wreaking havoc in society, have been omnipresent.8 They appear in all sorts of modern regime, in any case. Finally, other elements are forms of output production and ways of policy implementation. Third, regarding mediation, we must reckon with the methods of selection of government and representative assemblies as well as with formal and informal mechanisms of representation and intermediation. It must also cover the criteria and procedures of selection of incumbents of posts in the state political system, including who can be elected, depending on the conditions in which this may happen and the programmes admitted. How agents in the societal political system reach out directly to lower or higher-level agents in the state bureaucracy must be accounted for too. This comprises rules, formal and informal, linking the state and the ­societal

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political system, encompassing party (one, two or multiple, competitive, dominant or exclusive) and electoral systems and rules (majoritarian or proportional, consociationalism), campaign finance (public, private, firms), direct representation, social control. Licit or illicit capture is very important here, featuring corporatism, lobbies, tutelage, clientelism, consultative councils, political elements of neo-patrimonialism, and so on.9 Further elements are the practices whereby societal ‘crystallizations’ (such as defined in Chap. 4, encompassing classes, genders, races, castes, ethnic groups, regions, religions, etc.) are hosted within the state. Conflict and cooperation, as argued in Chap. 4, are present in political systems and their concrete expression in political regimes. A number of possibilities must be therefore detailed here. Inward state conflicts are those between collectivities within the state political system; inward societal conflicts are those between collectivities within the societal political system. They may be neatly connected, defining isomorphic camps. Those societal conflicts are, as a consequence, taken to the state political system—and, conversely, state conflicts to the societal political system—by mediators. In contrast, cooperation within the state political system can be stronger than conflicts, the same obtaining within the societal political system. In the first case, deprived of mediators, societal collectivities will be witness to the closure of the state political system upon itself. Although less likely, it is also possible that conflict within the state political system is pushed onto the societal political system without great repercussion; it may be tremendous, on the other hand. It is possible, something usually at best underplayed in the social sciences literature, that different collectivities from distinct sides of the state-society divide clash more strongly than what happens within each of them (i.e. opposing forces from the societal political system are harsher with collectivities within the state political system than its supposed representatives therein, and vice versa). The dampening of conflict may happen simultaneously and connectedly in both sides of the political system. This may shut the political space but build up tensions that can fire up regardless and even against the societal and the state political systems. As we shall see shortly when we examine models of political regime, during deeper crises the whole societal political system may be opposed to the state political system. Those rules, formal and informal, of the selection of incumbents of the state political system can reflect a strong relation between the state and the societal aspects of the political system. They can also be basically or rather independent of formal, and even informal, mediation between state and

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societal political systems. A high level of authoritarianism can seclude the process, which then takes place mainly or exclusively within the state side of the divide. Powerful collective agents, however, usually keep access to the commanding heights of the country, especially of the economy, in this case. Even elections cannot be taken at face value. We now need to further consider one aspect which is often taken for granted by theorists of political regimes. Radical authoritarianism can be defined as a ‘regime of exception’, yet it does not break away from modernity. Even in the case of fascism, the basic societal liberal framework, including law and rational-legal bureaucracy, remains part of political modernity, perhaps restricted to a variable extent. This took place in a relatively limited scale in Fascist Italy, Nazism consisting in an extreme regime which almost exited modernity, without totally discarding that basic framework. The ‘normative state’ was hurt but was not dislocated by the ‘prerogative state’.10 The structure of basic civil rights, which we have reconstructed in the first part of this book, has remained in being in this sort of regime, even if it was narrowed and distorted—to start with due to its murderous political nature (communists, Jews, homosexuals, etc. taking most of the brunt of its restriction). We can say the same of the state’s abstract bureaucratic and more general legal underpinnings, despite ‘exceptions’ and starker political impositions. 8.3.2  Models Let us briefly sketch the main substantive approaches to regimes available today. I will refer to them in the course of my analytical re-construction. Linz’s account comprises the ideal-types of ‘totalitarian’, ‘authoritarian’, ‘sultanist’ and ‘democratic’ regimes. This is directly identified with liberal democracy, with the ‘post-totalitarian’ regime added later to their typology. Dahl’s concept of ‘polyarchy’, a classification with which he framed really existing democracies—that is, liberal democracy—is a regime of the many and not exactly of everyone. It features open, protected contestation and enlarged participation. Different sorts of regimes, it seems, consisted for him in a possibility under this general polyarchical head, similarly broadly defined ‘hegemonies’ standing at their antipodes. Directly drawing upon Dahl’s concept of poliarchy, Santos classified regimes as ‘autocracy’, ‘oligarchy’ (‘hegemonic’ or ‘inclusive’) and ‘polyarchy’, which appeared worldwide, including Europe, truly only in the aftermath of World War II. Hybrid regimes, in contrast to these pure

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types yet based on them by and large, contain characteristics of more than one type.11 In addition, ‘transitions’ to democracy in Latin America and Southern Europe gave rise to a large literature, which emphasized dynamic aspects of regimes, with some of these concepts as background information.12 While Marx did not provide a typology of regimes, his description of Bonapartism, versus bourgeois parliamentary forms, partly pioneered this sort of discussion in modernity. It exerted a lasting impact on Marxism, leading some to interpret even fascism in this light. In the course of Marx’s analysis, the crisis of mediation and representation came to the fore in intense colours, resulting in the personification of power in the executive.13 More recently, we have once again encountered empty political bids, often albeit not necessarily by rich men, steeped in demagoguery and personalism, mass media controlled by big capital and frequently majoritarian electoral systems, reducing electoral contests to what amounts to a superficial struggle between different sides of the same party, often with plebiscitary characteristics. Some return to Bonapartism for interpretations of such sort of phenomena, but so-called populism has been more common an interpretation, even of a specific regime.14 Others have started to speak of ‘undemocratic liberalism’, implying ‘rights without democracy’, and of ‘illiberal democracy’, another name for ‘populism’.15 We can improve on these types and analyses concerning both the analytical construction and their substance. I shall now introduce seven models of modern regime and will discuss populism later in this chapter. We need to perform a double operation in relation to that. On the one hand, we need to craft models of regimes, with their static topographies, on the other, we must pay attention to their dynamic aspect, since processes of democratization and de-democratization are always at play.16 Since these are models of regimes, they may overlap and hybridize in concrete instances. Let us begin with the radical autocratic regime of which fascism, in its several historical variants, is the main expression. We have two other models of autocratic regime, the personal autocratic and the bureaucratic ­autocratic.17 The liberal oligarchic and liberal democratic regimes come next. The former has to be further split into traditional liberal oligarchic and advanced liberal oligarchic regimes, the latter still consisting in an emergent reality. Finally, we have the radical democratic regime, which, as such, does not exist (hopefully, as yet). Its potential is however normatively immanent in the modern imaginary. A dictatorship-democracy

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continuum should be borne in mind too when we speak of these regimes, since there is no absolute yardstick to measure them (it goes without saying that I deploy here the term dictatorship in its modern, and not original Roman sense).18 All these regimes are premised on a legal-bureaucratic liberal infrastructure. The colonial autocratic regime was extremely harsh and in particular it was not based on a legal liberal infrastructure for most of the population, except the Europeans. These regimes had a direct link with metropolitan regimes, having a variable impact upon them (usually buttressing internal state domination but often entailing crisis when colonial decline set in abroad, of which the French and the Portuguese cases are a good expression). So-called indirect rule by indigenous people rather than ‘direct rule’ by colonial administration (more bureaucratic, rational, without being fully legal) was rather usual. Eventually, some degree of freedom for ‘public opinion’ was allowed and even the election of limited representative bodies introduced, on occasion, some variation in the pattern. This did not so much as alter it in the main. The more or less ‘inclusionary’ or ‘exclusionary’ character of these regimes partly determined their postcolonial fate.19 This sort of regime no longer exists. It was no less modern because of its colonial character, although it depended on the existence of metropolitan regimes and showed modernity at its ugliest. The selection of incumbents of political positions varies in different regimes. In the autocratic colonial regime, main positions were decided in the metropolis, with some negotiation taking place in what concerns local authorities. Open debate was eschewed or subdued, political rights were non-existent or minimal; the police and repression were, conversely, overwhelming. No hint of democracy proper was to be expected, some very restricted level of representation becoming allowed in rare cases. In the radical and the bureaucratic authoritarian models, the selection of incumbents is restricted to the ruling circle and counts on unstable rules, open debate at best restricted in the latter’s case. In the personal autocratic, instability remains, with personalism further restricting the process. Debate is not necessarily foreclosed, though it often is, but there are guarantees against outbursts of and repression by the autocrat. In the liberal oligarchic model, rules are potentially stable and selection restricted but representative to some extent and for some people in the traditional case, assuming a rather plebiscitary character in the advanced instances. Electors do not participate in the definition of those they can vote for and other restrictive mechanisms are at work. Debate can be

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relatively open, yet legal defences against retaliation are not necessarily functional in the traditional case and media outlets not forthcoming in the advanced case. Oligarchic regimes can be highly competitive; different oligarchies can even clash with each other violently, since they are not unified, sometimes having also strong differential connections with the societal political system. In a truly liberal democratic regime, if it ever existed, consultation and representation is broad, debate and participation meaningful, within stable rules. Kings and queens, emperors and empresses— once the main expression of autocracies and the like—have headed modern political states, now basically within liberal democratic regimes, since stronger forms of constitutional monarchy have faded. They sometimes hold more power than explicitly acknowledged.20 In radical democracy, the law should be strong and participatory, repression minimal and sporadic. Selection of incumbents should rest on intense participation and debate. Debate and public opinion formation, as well as representation and mediation more generally, would be a manifold and in principle horizontal process, perhaps beyond what is to be properly conceptualized as the state. Despotic power in any case is reduced and, in the limit, should not exist. Infrastructural power can still be closely related to high levels of authoritarianism, even though either the state or whatever substitutes it in radical democracy may not shun a deep level of societal penetration. Radical democracy might be seen, crucially, as an ‘empowered participatory regime’.21 Prospectively, rights can, in a different sort of future civilization, eventually turn themselves into something else. Political rights are broader and more meaningful according to the level of democratization of modern political regimes, with strict regulation of the role of money and business in politics. Authoritarian regimes tend to be centralized in what really matters, in contradistinction liberal democracy is inclined towards de-centralization, with the proviso that veto points can sometimes be better dealt with from the top, breaking the resistance of local powers. Curiously, the definition of the authoritarian regime as ‘totalitarian’ usually glosses over vigilance and top-down infrastructural power as a prominent element of political modernity overall, let alone repression. In reality, any state has so-called totalitarian aspects.22 If, in all modern regimes, the liberal infrastructure, more or less strong and exclusive, is relevant, the role and weight of the police and repression varies, autocracies limiting the reach of civil rights more or less intensely and violently. The more authoritarian the regime, the less is the law fully implemented and the greater the power of the police and the states’

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‘totalitarian’ inroads. Finally, the social bases of authoritarian regimes are narrower than that of democratic regimes. There is no linear evolution of one regime to the other. Yet some factors have generated increased openness. These are the increasing complexity of the societal political system, which demands a suppler and more multifaceted relation with the state political system; the pressure from and struggles of the many, that is, from and of citizens and the popular classes; the growing autonomization of individuals—socially and politically. They have impelled the passage from autocratic to liberal regimes, oligarchic or democratic. Legitimacy and legitimation, which we will consider below, or lack thereof, is crucial in this regard, implying some level of ‘hegemony’ (consensus, which includes consent to political rule, and coercion, which supports it), or, again, lack thereof. In the case of the colonial regime, pressure included locally powerful groups or aspiring ones, though the outcome often entailed a very partial sort of inclusiveness, with new sorts of autocracy, national now, emerging. As modernity progressed, rulers have had to open room for more inclusive forms of rule, liberal democracy consisting in its utmost democratizing outcome, directly from autocracy or more piecemeal through oligarchy. In contradistinction, the radical autocratic case appeared as a fierce reaction from economic and political ruling collectivities—and sectors of the middle classes—to democratization and its risks for them. The passage from liberal democracy to advanced oligarchy is, in turn, achieved via a mutation which, also de-democratizing, implies a formal maintenance of the state political system. This however eschews connections with the societal political system or becomes far more selective in this regard, pretences to the contrary notwithstanding. We have to distinguish carefully between the three liberal regimes—traditional oligarchic, democratic and advanced oligarchic. As mentioned above in passing, until the end of World War II so-called democracies were not, mostly, really democracies. The impact of the 1917 Russian revolution, irrespective of its shortcomings and tragedy, and of other revolutionary movements, played a decisive role in this process. It led to concessions, especially in Europe.23 The expansion of representation (in the legislative and the executive, which may be conflated in parliamentarism) and the amplification of society-state mediation pushed the democratization of liberal democracy. It consisted in an entirely new sort of regime, beyond representation in traditional modern oligarchies, in which it was confined to a small number of players (with personal forms of domination

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frequently obtaining in the societal side of the modern divide). In other words, a democratizing process unfolded. If liberal democracy has always had some essentially oligarchical features, related to state, parties and social organizations (such as unions and the media), its progressive evolution included mass organized participation and effective state responsiveness. Mediation had an outstanding role to play. Today, liberal democracy proper is seriously debilitated. It may be substituted by a new, subtle form of domination. Advanced liberal oligarchy appears to be an open regime: opinion is free and law upheld, to a good extent at any rate, we all may vote and be elected, despite vetoes, popular sovereignty and representation are, formally, key elements of the system, mediating between the societal and state-based sides of the political system, with social, especially popular mobilization, admitted to a variable extent. The process is, by stealth, emptied of its democratic content, though. It is ‘illiberal liberalism’, indeed, with the addition that rights are partly curtailed in this sort of regime, either formally or informally, except the basic civil infrastructure of juridically based liberal systems, which remains more or less unharmed. In other situations, greater pressure is put on them due to mounting repression. Lack or the vacuity of options lead people, in practice, to forego voting rights; class-based money and state-­rooted party machines decide who can run for offices, mediation becoming much more restricted, alongside oligopoly media, with public opinion formation and agenda setting tightly controlled. Depending on context, political repression may increase and mobilization end up shunned. The formal political system can become sternly controlled by its actual rulers. Actually, advanced liberal oligarchy can develop into (or set on as) a tougher sort of regime, with strong military participation, veto prerogatives or the like.24 Therefore, within the state political system and its societal connections, oligarchy strongly re-emerges and, conversely, empowered participation dwindles. It becomes truly the regime of the few, not of the many. De-democratization is apace. The internal logic of the state political system predominates, mediation especially with popular classes and the like in the societal political system—which may be weakened—wanes; what really matters now is the logic of party and state political and bureaucratic games, mostly connected to powerful agents which tend to have rather direct access to these collectivities. Political programmes, as an aspect of agenda setting, tend to become very circumscribed and blurred, through the combined efforts of politicians, the mass media and big capital, despite formally open spaces for public debate and also growing—and, taken as a

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whole, democratizing—influence of the internet. Societal cleavages are not translated into the state political system and conflicts within the latter may even subside, although competition for electoral positions carries on. The radicalization of discursive tropes and demagogic moves, the scapegoating of ethnic and racial groups, the villainization of immigrants, consists in a favourite manoeuvre of several sorts of, mostly, new, extreme-right, potential oligarchs, some of them trying to play the role of big man or woman. Bonapartism is a clumsy way of rendering this analytically. Others, with a more benign liberal face, have been more successful thus far in the oligarchic power game. Institutionally, the usual centralization of governmental operations in the executive and often at the federal level (although there may be some opposite trends in this regard) is heightened in this sort of regime, following and combining with what we examined in Chap. 5. This is central to the advanced liberal oligarchical regime, with the state more concerned with its global insertion than with the citizenry, conflicts and the eventual rise of forces with discrepant orientations notwithstanding. This is not to say that mediations between the societal and the state political systems do not occur at all. Public opinion, however inevitably partly crafted by the discursive and practical moves of politicians and the media, has some variable impact, with its decentred causality. The same applies to elections, in which those forces always enjoy massive leverage, but express, even though often faintly, the electorate. We are not speaking about absolute developments towards oligarchization and political closure. Moreover, even very authoritarian regimes must listen to popular feelings and demands. If we formulate these theses in direct relation to Dahl’s definition of polyarchy, greater analytical clarity may result. For him, polyarchy, the actual embodiment of the democratic ideal and a post-oligarchic regime, rests on ‘unimpaired opportunities’ for its citizens to ‘formulate their preferences’ and ‘signify’ these to ‘their fellow citizens and the government by individual and collective action’. Finally, their preferences must be ‘weighed equally in the conduct of the government’. While it has been argued above that liberal democracy as a regime—that is, t­ wentieth-­century polyarchy—was never as responsive to its citizens as Dahl implies, advanced liberal oligarchy has curtailed this even more. There has ensued a restriction of practices and agents as well as the ineffectiveness of institutions that might make ‘policies depend on votes and other expressions of preference’. In addition, even if repression remains within controlled bounds, which is not certain, the costs of overlooking those preferences decrease

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enormously through the agreement of most political forces on an agenda that disregards them, alongside the system of mutual guarantees among oligarchic factions that makes sure they will treat each other fairly. Last but not least, concentration of all kinds of resources is a glaring feature of advanced liberal oligarchy, contrary to what should be expected of polyarchy/democracy, he thought. ‘Contestation’ and ‘inclusiveness’, which are key aspects of polyarchy for Dahl, are thereby neutralized. The same happens with the idea of ‘agenda setting’, in which the many should partake but which is sequestered by powerful and restricted forces, not to mention the decision-making stage, from which the many are usually totally excluded. Finally, the disparity of access among citizens to ‘political resources’ (contact with politicians, social ties, free time, money, etc.), ‘skills’ and ‘incentives’ (to start with the impact one can have on politics) may create more or less severe political inequality, as it usually does. A true rift has opened in recent decades in what he deemed ‘developed democracies’ concerning such resources. Considering that he did not believe big international organizations could be run democratically, the situation becomes even more dismal.25 Dahl was quite aware of the possibility of a decrease of polyarchy— hence de-democratization—in the United States, although he put greater weight on societal factors (e.g. consumerism) than I do here, while the incapacity to face up to rising oligarchies made up of ‘political leaders’ with greater resources was duly noted (without, unfortunately, an empirical referent).26 Other factors he mentioned, such as available collective time for discussion and size of national political systems, have only ­marginally increased lately. The role of autocratic global organizations must be indeed further taken into account. Lastly, crisis could in turn propel rather than shrink democracy, what is not contemplated in Dahl’s suggestions. As it happens, those ‘leaders’ have their own agendas, interests and choices, implying the closure of the political system. Contrasting it with polyarchy, Santos has discussed traditional oligarchy (‘competitive’, in any case) more extensively. He rescued it in a timely manner from oblivion in the literature. In its original modern incarnation, it was based on representation and a limited yet strong number of veto power agents, harbouring a tendency towards self-destruction, since it would be linked to capitalist development as well. This corresponds to a trend towards polyarchy, he argues. We cannot say the same about the advanced liberal oligarchic system.27 What is more, traditionally in the history of political thought, as introduced by Aristotle’s Politics, which we

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must mention at this point, aristocracy/oligarchy has been seen as the government of the rich—against isonomy/democracy, the government of the poor and the many28: it constitutes plutocracy, we might say, especially when wealth increases and acquires a monetarized though immaterial form, with inequality rampant. Accordingly, the advanced oligarchical liberal regime is characterized by powerful crystallizations, within the state, of global oligopolies and finance capital, which have risen to supreme prominence, weighing heavily on political dynamics and on the general mentality of the age. Yet, although mutual connections are pretty obvious, in modernity, to restate a point already made, there is no direct translation of wealth into political power. The latter pertains to a dimension with its own imaginary, institutions and dynamic.29 These have to be properly understood. Radical autocratic regimes were probably the way finance capital, big industrial capitalists and agrarian property owners found to defeat the democratizing trends and socialist/communist currents of the first half of the twentieth century. The incumbents of political positions and supporters of these new advanced oligarchical regimes seem to be shrewder or, with the defeat of real socialism and the increase of their power, the situation is more comfortable for them. It looks as though we are all aware of what is happening—and how could we not be in the face of the always favourable measures taken by governments across the world with respect to finance capital? Yet, they all eventually give in to its pressure, and there seems to be little difference between the programmes espoused by most political forces; those that challenge them are soon sidelined. Finance capital always succeeds either because political and bureaucratic agents directly and willingly support its demands and perspectives, or because the latter need economic stability in order to keep afloat and maintain their own hold on power. In times of O’Donnell’s ‘delegative democracy’, characterized by the stark concentration of power in the executive and a lack of commitment to programmes and electoral promises as well as particularistic (clientelist) features, election results do not necessarily mean the operationalization of electoral proposals (especially if they contradict those powerful agents).30 This has become almost the rule. If concentration of resources, to summon Dahl’s point once again, is truly enormous under these circumstances, the situation has distinctive political characteristics. They cannot be reduced to this socioeconomic factor. I tried to analytically display them above, with a political dynamic of closure of the political system such as motivated by political agents.

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If the threat is awfully real, mostly it has not so much to do with formal rules. The issue is defined above all through informal rules and actual practices that exclude alternatives from any significant role in the state political system (and even, to a large extent, in the societal political system). The exclusiveness of ‘acceptable’ programmes, the concentration of the mass media, the role of big money in politics and strong exclusionary cooperation within the state political system, despite sometimes the radicalization of superficial conflicts, are now paramount. Institutions are thus trickily altered. The US—which, lest we forget, was thought of already as a mix of democracy, representative republic and aristocracy by its ‘founding fathers’ or ‘framers of the constitution’—is today certainly a prime example of how this is happening across the world. Democratic restrictions unmistakably emerge in this very central country of modernity, also advanced in terms of this new sort of oligarchization and plutocracy, as some liberal authors themselves have been slowly acknowledging.31 The European Community is, in turn, the ultimate example of this arrangement. Powerful bureaucracy and secluded finance ministries, with almost absolute agenda setting and veto powers, work to undermine democracy, which does not mean national political systems are innocent either.32 If we add to this the closed nature of global politics and what it represents in terms of concentration of power in the interstate international dimension, paying attention to its impact on national political processes, both political and bureaucratic oligarchical features are taken to extremes, alongside the brutal and extensive influence exercised, across borders, by finance capital.  Admittedly, some of these concrete regimes are, or are becoming, so authoritarian that electoral processes and even liberal structures cannot allow for a proper or full oligarchic definition, not to speak of liberal democracy, including real electoral competition and societal political freedom (Russia and Turkey standing out in this regard among other exemplars).33 Some variation is of course to be expected in relation to these models, especially if we are dealing with civilizational hybridizations. Take, for instance, the curious case of the Iranian Islamic Republic, with an oligarchic—theocratic and most powerful—layer superimposed on a rather liberal, formally democratic regime, with the fierce Revolutionary Guard as the regime’s repressive spearhead lurking behind. Another peculiar case is ethnocracy. This is a regime that can be rather liberal democratic to the members of one ethnic or racial group, totally excluding or subordinating other ethnic or racial populations, as always in Israel and formerly in South Africa, respectively.34 History—that is, the specific trajectory of any such regime—must be always accounted for when these models are applied to

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actual empirical cases. This will mark their concrete outlook. Finally, one more variable—in a sense external to the model such as presented here— should take stock of the actual level of autonomy and sovereignty of any one country in terms of the regimes specified below. In some cases—for instance, liberal democratic—what appears as the relatively autonomous self-government of most of the population is severely restricted by the overwhelming power exercised by some other country over it. If the global situation today is dismal, there are countertrends, partly stemming from changes in the societal political system, such as examined in Chap. 6, that perhaps point to a brighter future. Conflicts may destroy the inescapably provisional stability of modern political regimes and autocratic or oligarchic regimes are always under pressure, throwing up oppositional, democratizing modernizing moves, as aspiration and exigency, if nothing more. The modern imaginary has hardly much room for open forms of domination and the demands for autonomy and equal freedom, whether people do act upon them or not, ceaselessly sap the foundations of these authoritarian regimes. That is why the oligarchic advanced regime is such an invention. It works through denial: we see but cannot recognize it, shrouded as it is in its phoney liberal-democratic outfit. Eventually, as in all cases of ‘defence mechanisms’ leading to misrecognition, the problem does not go away, and individuals and collectivities end up finding out the narrow limits of these institutions. It is then that radical democratic claims and the possibility of a radical democratic regime are reaffirmed, time and again, through the restlessness of an increasingly supple and autonomous social life. 8.3.3  Legitimacy and Legitimation As a crucial component of the imaginary of political regimes, we find what since Weber has been called legitimacy. In his work, it implied the belief in the justice, the correctness of a form of ‘domination’ (Herrschaft), and what was usually understood as consent, namely, the reasons to obey, to accept ‘commands’, beyond sheer force, of those who rule. Weber reshaped sociologically a discussion that has been for many centuries a cornerstone of political thought. As already seen in Chap. 2, ‘legitimate domination’ appeared in three different ideal-typical forms: ‘traditional’, ‘charismatic’ and ‘rational-legal’. The first implied the eternal repetition of hallowed past behaviour, the second was based on the recognition of the ‘extraordinary’ qualities of the ruler (with ‘magic components’), the third rested on the efficiency and legality of a specifically modern form of rule. Habermas resumed this discussion and saw legitimation in terms very similar to

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Weber. He initially pointed to its crisis, in that the imperatives of economic performance were assumed by the state—therefore stressing the rational instrumental aspects of legitimacy; he then eventually dwelt on its rational juridical features in modern democratic systems of ‘domination’, underlying the procedural, citizen-dependent, components that characterize a legitimate ‘legal order’. In a more limited vein and at a lower level of generality, Easton spoke of ‘support’ underpinning political systems. It was either ‘diffuse’ or ‘specific’, respectively general or hinging on particular advantages and benefits.35 In what follows, I take up both strands of conceptualization. Note that at least as modernity advances historically legitimation of state rule moves beyond mere consent and has increasingly included a greater level of consensus, although with liberal oligarchy we may return to a narrower form of legitimation. Active allegiance for most of the population, except for those who are the target of special treats, gives in to resigned acceptance of hierarchical rule, premised on slender forms of justification. The large literature that has engaged with this topic is not, contrary to what might be desired, usually precise in the differentiation between ­legitimacy and legitimation. We need to distinguish between them: whereas the former refers to an outcome and a condition, the latter concerns the processes whereby a political process leads to the former.36 In turn, support, general and specific, implies mere political authorization and, possibly, active consent (which means engagement with political phenomena). Legitimation is not however a process that really encompasses everyone. Many may remain untouched by the state’s claim, even, and sometimes especially, ruling collectivities, cynicism and presumptuousness reigning, with at best half-hearted legitimation obtaining.37 Even so, in some degree, political regimes are dependent upon their legitimacy and the processes of legitimation leading up to it; otherwise they have to depend too much on coercion rather than on some level of consensus. To some extent at least, those who hold positions of power need to show respect for the principles on which the regime is based and that commands must be obeyed because the state or government is efficient, against the more general backdrop of norms taken as legitimate as such. Evidently, especially when personalization is intense and institutions weak, arbitrary rule and unpredictability mount. Yet by and large rationality is, and has increasingly become, a crucial element of the modern imaginary and of legitimation, instrumentally. The bureaucracy, in particular, is the agent of this process of legitimation and element of legitimacy, but politicians also have their ‘specific support’ hanging on whether they can

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properly ‘deliver’ (efficiently or with ‘efficacy’, as some have suggested for the Asian context, as mentioned in Chap. 2). Regarding the value systems underlying legitimacy claims by political regimes, there is more concrete variation. Deep ‘belief’ is not always necessary. This is in fact a moot point in Weber, if we consider how automatically social systems suffused with religion receded as modernity advanced. Rational utilitarian expediency calls the shots here, meaning wanes. Autocratic regimes have distinct patterns of legitimacy. Radical autocratic regimes lay their legitimacy claims on a direct identification between incumbents of political office and the ‘people’—an organic view, for some, of ‘democracy’, as we have seen with Schmitt, unsustainable. This falls short of full equality between the two.38 Nazism, in particular, stressed this element, which is more spread out. These regimes historically asserted themselves as bringing about a revolutionary process and aiming at longevity. A lot changed indeed upon their coming about, but they did not tear asunder the liberal infrastructure they encountered. Bureaucratic authoritarian regimes in turn validate themselves mostly as transitory: they usually justify themselves as temporary occurrences in situations of crisis and as preparing society for a return to liberal democracy, which must be defended from those who want to destroy it and the nation (it used to be communists, now political Islam may be the focus of danger). Radical autocratic regimes evince dense concrete features allowing for that identification; in contrast, the bureaucratic model is prone to assume a more abstract expression (the army has performed prominently as the bureaucratic authoritative body within the existing state that can function as the nation’s saviour). Personal autocratic regimes are less dependent upon efficiency and tend to be regarded, or regard themselves, as permanent. They do not necessarily totally break with a liberal democratic façade and sometimes social life relies on the liberal infrastructure. Yet it is in those neopatrimonial elements we have identified as part and parcel of the modern state that this sort of regime encounters implicit or explicit legitimacy (the neo could be weaker than the patrimonial, becoming stronger as modernity progresses and this sort of regime recedes). Consent to rule is achieved in each of the autocratic regimes by different processes, more or less personalized. They all work from top to down and are tied to state control of political processes even when ‘civil society’ is partly preserved—the role of the police and more generally surveillance consisting in a more or less critical variable in this respect. They are, however, more crisis-prone inasmuch as they largely rest on repression rather than on true hegemony. This shortcoming limits their legitimacy.

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Citizens remain the unmovable basis of modern political systems, on both sides of the political system’s divide. Their consent and to some extent activity furnish the main source of legitimacy in political modernity, even if an ‘organic’ conception of a people forthrightly connected to the leader is upheld. Can we say, furthermore, that liberal regimes are ‘optimal’ forms of state-mediated bourgeois domination, with political rights matching more directly civil ones?39 The evolution of liberal regimes seems to make this proposition plausible, since demands for the former inevitably spring forth. The horizon of modernity includes the enchantment created by the figure of ‘juridically freemen’ and a dynamic development stems from the demand of political freedom connected to it. Legitimation is more fragile if this is not taken up in practice, even if in a circumscribed way. Ideas of the social pact make this even stricter, also if they have limited course. Conversely, imaginary elements related to ideas of power and ‘leadership’ support more authoritarian perspectives. These have been crucial for fascism and other radically authoritarian or autocratic regimes, though certainly not only for them.40 Liberal regimes, both democratic and oligarchic, including the latter’s two incarnations, traditional and advanced, obviously rest on the liberal principles of rule of law and civil rights, with a restriction on participation in law-making and an affirmation of bureaucratic expediency. Representation is a key element in them all, with the relation between concrete and abstract assuming a more convoluted form. The traditional oligarchic regime is hardly personalized, and those modern/liberal impersonal elements come to the fore in it. This is complemented by the idea that state power has to be curbed. Rational law, crafted by rational representatives, stands out in this sort of regime, with the democratic principle of legitimation and legitimacy gaining ground. Popular sovereignty is present therein too, still in a restricted form, insofar as most people are excluded from the franchise, let alone from the possibility of being voted or elected. If that was not enough, a supposedly aristocratic, actually oligarchical, principle of selection of representatives is operative. It works as an element of both legitimation—in that the best are selected—and legitimacy—in that their commands must be obeyed exactly because they were elected and due to the excellence of the rulers. In this regard, bureaucracy must be viewed as part of legal legitimation, its characteristics conforming to the abstractness and impersonality claimed by modern law. This does not mean that other elements of legitimation do not penetrate this purportedly purified realm as modernity progresses and

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substantive issues infuse general law and administrative regulations. It is true that, as a result of the unfolding dialectic of the abstract and the concrete (which we discussed in the first part of this book), a more complex process of legitimation cannot be skipped by the state within the second and third phases of modernity, in contradistinction to the simpler and more straightforward abstractness and formality of the first phase. Despite that, no pure ‘administrative’ state has emerged and, despite all changes and tensions, legal-rational legitimation still holds centre-stage.41 Liberal democracy lends much more centrality to that primary element of the modern political imaginary: popular sovereignty. This is attendant upon equal freedom, meaning that at least formally and politically, ideally, people should be taken as enjoying the same power, beyond the mere liberal juridical infrastructure. Equal freedom, in turn, appears in tandem and in some tension with that other key element of the modern imaginary, rationality, which just too often underpins authoritarian outlooks, with their expediency cloak, although, lest we forget, it is deeply ingrained in the former as well. Of course, what constitutes popular ‘will’—the people as a whole or as a majority—creates difficulties that cannot be wished away. They are likely to surface in moments of crisis (especially if there is a yearning, on the part of political forces and the population, for a bigger than life so-called Führer). Disguised or ambiguously sustained, this all is in tension with a putative aristocratic superiority of political representatives, including their loftier rationality, which undergirds, for instance, elitist theories. To be sure, popular sovereignty may be condensed with other sorts of criteria, as well as undergo displacements which partly or totally change its meaning; it is no less important because of that. Liberal democracy consists in a specific sort of regime. Its processes of legitimation are thickened through general franchise and more open debate. Its polyarchic nature must be stressed, including, in some part, those who can be elected. Yet, its principles of legitimacy do not differ much from the traditional oligarchic model. Rule of law and rationality lie at its core, pace the pressure upon the former and of the tenser support of specific political systems through outcomes due to performance problems, exacting more sometimes from instrumental expediency than they deliver. Abstractness endures, but becomes less formally absolute, since all sorts of representatives—not only those occupying executive positions—appear in body and flesh, with their particular social and personal characteristics, before the electorate. Participation increases, stemming from deep social processes of individual and collective autonomization and popular organi-

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zation. The increased autonomy of the societal political system and its capacity to influence the state political system is another factor contributing to this restlessness, alongside the mushrooming of concrete demands. This lends a specific, more democratic flavour to processes of legitimation. This type of legitimation was sometimes historically combined, under traditional liberal oligarchy and even liberal democracy, with legitimacy derived from the control of colonial possessions. This was the double-bind of monarchies/republics with empires—which was so central—especially for the second phase of modernity. The advanced oligarchic model formally displays all the features of the democratic liberal regime, including popular sovereignty, but empties them of content. What is more, it adds new elements of legitimation. These truly exclude rather than include people, in particular stressing the media performance of politicians and, in some contexts, their capacity to muster financial resources to campaign. The personality of candidates and incumbents, above all those who run for the executive, often becomes paramount—with their concrete traits heightened and as a matter of fact largely made-up by the powerful machine of electoral propaganda. This does not exclude delicate performative processes, ritually enacted, emotionally charged and symbolically rich. The rule of law remains important in a liberal context, but we are now beyond the aristocratic perspective that surrounded elections even in the liberal democratic system. Legitimation and legitimacy through performance, that is, support derived from specific outcomes, become inevitable ingredients of the regime. People must obey because of the great personalities involved and because they can deliver. Also, more bureaucratized forms of the exercise of domination may be based on performance imperatives. Popular sovereignty lingers on, but in the magma of the imaginary it is dislocated to some extent from centre-stage and those personalities condense the qualities of a political project. This may not necessarily entail a plural people reduced to a homogeneous unity, though it may still be the case that it works in terms of concrete and organic imaginary representation. When a more ­bureaucratic version of advanced oligarchy is at stake, impersonality and efficiency take the upper hand, notwithstanding the possible combination of this with more personalized political expressions at separate yet connected institutional levels. Money in this regard has ambivalent meanings: it can be taken as proof of superiority and, at the same time, it is certainly resented in that it provides for the concentration of resources and their political expression.  Strong personalization and concentration of power usually accompany the more autocratic variant of oligarchy.

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What about the non-existent radical democratic regime in what concerns legitimacy and legitimation? Popular sovereignty is surely at its core. This is its mainstay. The next chapter will inquire into it in greater detail.

8.4   ‘Populism’? An old theme in political sociology, ‘populism’ has curiously become a bone of contention in recent debates featuring such sort of highly personalized and tendentially demagogic politicians. In former discussions in Latin American, most participants were not sympathetic to it. Curiously, this has been partly inverted, although others resume its critique as crucial for the defence of democracy. Its authoritarian character is stressed in this case. I for one think that we can even discount the existence of ‘populism’ since its description covers a heterogeneous array of occurrences, in Latin America and elsewhere. Its characterization has included movements and a specific sort of regime—or even the very definition of political modernity. More plastic than the phenomenon, only the conceptualizations that have tried to come to grips with it. Few issues evince so clearly the complicated relation between abstract and concrete, democracy and authoritarianism, liberal institutions and stability/instability. In a sense, we can say that there is something that can be deemed ‘populism’, phenomenologically, that is to say, as such identified by people in common (including social sciences) language. This is to a large extent constituted by what is said to be ‘populism’ (in a double hermeneutic or actually somewhat vicious conceptual circle).42 Yet this is an inadequate way of conceptualizing the sort of phenomena that is so identified through this inevitably loose and incoherent label. Germani’s classical definition established ‘populism’ as a typical political issue related to the transition from ‘ascriptive’ (traditional) to modern society when, in the bounds of a liberal oligarchic system unwilling to incorporate the popular classes, opportunistic elites manipulated traditional masses according to their veiled power objectives (especially in his first contributions, he was more attentive to how workers effectively conquered social freedom thereby). Germani later on hardened his position and included Peronism in a general classificatory box of authoritarian regimes, close to, yet different from, fascism. With a different tack, Laclau more recently even equated ‘populism’ simply to ‘the political’. It implied, he argued, a sharp division of society in opposing fields. This resumed, in one way or another, Schmitt’s understanding of politics as all-out antagonism, though Laclau

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did not mention him. Schmitt was actually openly deployed in Mouffe’s own rendering of ‘the political’, pitting now ‘agonism’ between adversaries, therefore softening Schmitt’s antagonistic friend-foe distinction.43 Others spoke of ‘populist’ regime or ‘populist’ leaders. From the second half of the twentieth century to the 2010s, when it seemingly re-surfaced with great strength, continuities and discontinuities have been discussed (including rapprochements with Marx’s concept of Bonapartism). Demagoguery, authoritarianism, personalization/incarnation, irrationalism, polarization, anti-pluralism and media manipulation are traits variably attributed to these leaders and movements.44 The ­literature is legion, with repercussions now in the debate about extreme-right political currents in Europe and elsewhere. I believe that the notion of ‘populism’ has been so stretched that it is difficult to make much sense of it in its magmatic, floating expressions.45 Since it has been used to tackle very different things, empirically ‘populism’ could refer to endless and disparate individual politicians. Actually, implying diverse left and right-wing representatives, sometimes more centrist forces too, the currents usually described as ‘populist’ have never discarded the liberal infrastructure that underpins modern political systems. Not even the liberal political system is discarded when they get to power, although many of these politicians might not refrain from doing so if they could and on occasion have become more repressive and exclusivist.46 Authoritarianism is, indeed, a widespread trait in politics. Just take Modi, with his right-wing demagogy and majoritarian Hindutva now back to power, in liberal democratic India, a smooth neoliberal who never cared about denouncing elites, instead brutally targeting poor minority Muslims. We cannot say either that dividing the nation and trying to incarnate it consists in a specific ‘populist’ strategy. Numerous political movements that would be non-sensical to lump with ‘populism’ did the same: Marxists promoted class antagonisms against a supposedly small bourgeoisie and its allies; Nazism and Fascism opposed the nation and the people to communists, Jews and foreign countries; radical right-wing liberals adopted their own version of the polarization. For instance, former British Prime Minister Margaret Thatcher mobilized discursively the purportedly liberal British people underhandedly held in chains by the left. She vowed to represent them against unions and socialism. Thatcher was fortunate to count on the authoritarian Westminster system (the prime minister controlling party and parliament tightly, courts remaining unremarkable) and

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right-wing press support, especially the infamous tabloids, to accomplish her neoliberal promises. Politicians described as populist are invariably demagogic. Even if the point is granted, is such a trait exclusive to a specific sort of politician? They may bet on irrationalism, but various so-called populist leaders would have nothing to do with that, while irrationalism may be present in different political currents, though not usually in liberalism or Marxism. Some so-called populists shun the plurality of social and political life, with both an organicist view of the nation and an identification of the leader with the people and the nation, then with the state when they eventually get to power. This cannot be exclusively attributed to any specific political current. If fascism fits the mould, utilitarian individualist perspectives and market cosmopolitanism can be dominant in movements and governments deemed ‘populist’, as we have witnessed in the 1990s with the rise of neoliberalism in Latin America. Just take Menem in Argentina and Fujimori in Peru, the British case having been already pointed out. Nationalism is a perspective shared by different outlooks and appeals to the people are a necessary feature of democracy. They can be of course explored by demagogues. Personalism and anti-institutionalism appear in many systems and in many forms, hardly characterizing any particular movement or regime. This is more likely to happen, as Germani indicated, when the oligarchization of the liberal regime progresses, with the closure of the political system. The difficulty to organize and challenge this heightens the appeal of such sort of politicians. Yet figures who would be typical of populism, such as the Kirchners in Argentina, despite a Peronist penchant to polarization, never threatened liberal democratic institutions, even though personalization grew as their time in power extended. They tried instead to take to task a right-wing and extremely partisan media in order to democratize it—a problem leftist or ‘progressive’ movements, sometimes even liberal politicians, have to face across the world. In fact, even if these personalistic figures pretend a special relation with the ‘people’ or the ‘nation’, they rarely put forward a direct identification or total incarnation. They stress their distance and difference from the nation, the people or workers, their superiority, aristocratically or otherwise, after all (something translucid and explicit in the paradigmatic case of Perón). Only when the liberal infrastructure of political modernity is fragile are so-called populists able to encroach upon parliament and the judiciary and may try to perpetuate themselves in power, if they so desire. Of course, insofar as liberal ruling collectivities refuse to hear popular complaints and

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respond to popular disaffection, answers will be sought elsewhere. In particular, if the left is weak, unavailable or compromised, they will be found in right-wing, demagogic currents; the opposite used to be even more common. Overall, ‘populism’ is now the other of liberal democracy, the bête-noir and focus of anxiety about the sustainability of the liberal order, a role ‘totalitarianism’ used, but is at least temporarily unable to play. This is not the real problem, though: liberal democratic decadence and the development of advanced oligarchy is. In fact, this is what explains the recent ascension of those figures. Of course, radical right-wing movements may take over, even deeply damaging the liberal infrastructural framework. This will then happen not because they are populists, instead because they stand close to fascism, or other authoritarian/autocratic tendencies. More specifically, when the political system is in tatters, such putatively great leaders can be identified with ‘progressive’ or ‘regressive’ forms of what Gramsci called Cesarism, such as discussed in Chap. 5. These traits fit increasingly well with the advanced oligarchic regime and so-called delegative democracy, although the latter can accommodate more prosaic experiences. What those Cesarist leaders do have in common is, if they are allowed to, frequently, a tendency to clash with liberal institutions (pitting executive against legislative and judicial powers, sometimes persecuting adversaries), without breaking with them, and an intense personification of power. These tensions stem however from a dynamic that is internal, not external, to liberalism as it really exists. It springs forth unavoidably due to a permanent tension between the abstractness of idealized law-­ making politics and the imaginarily ‘empty place’ of power, on the one hand, and the concrete social life and its inevitable embodiment in political mediators, through representation as a complex amalgam of different elements, on the other. It cannot be expelled from political modernity and, especially in crisis situations and when hegemony premised on the reproduction of liberalism becomes shaky, it is bound to emerge, sometimes with authoritarian features. Not by chance is Latin America the region where this phenomenon has been more evident: these countries are structured according to liberalism, yet this has had trouble, stemming from how state and society work and relate to each other, to stabilize even the liberal infrastructure. There is steady room for personalized leadership to reappear, in the mid of radical oppression, destitution and difficulties in popular organizations. This leads to direct support for such sort of political protagonists. These situations may be therefore a symptom of the difficulties, limits or refusal of the state

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political system to incorporate the popular classes and democratic modernizing moves taking place in the societal political system. Other reasons may be behind it, though. Africa in particular was not immune to it, as especially single party rule and ruling leaders showed in the aftermath of independence, as a problematic (and self-interested answer) to pressing problems of state and political organization. The refusal of factions and conflict as artificial—in an almost Rousseaunian sense, with ethnic roots and under the pretext of the non-existence of classes in that continent— propelled it. The identification of the (general) will of the nation, possessing its own particular culture, with the party and the big leader—in a non-elaborate sense entailing representation through identity—completed it. Whatever else, this was to a good extent a means to buttress domination in personal autocratic systems. In part, this reproduced mechanisms of colonial rule, notwithstanding these states’ mostly failed bid for development, providing, on the other hand, for adaptations of political modernity to new historical conditions. Features which had already emerged elsewhere loomed large once again, sometimes with added intensity.47 Remember, by the way, that both the framers of the US constitution and the Jacobins were against factions, although the former quickly adopted the idea of political parties, which remained in embryo in the latter.48 Even if a sector is excluded or subordinated, as is usually the case in antagonistic or agonistic politics, especially but not only if the minority is, or is deemed to be, small, the will still manifests itself as bringing about some kind of unity, perhaps as the will of the majority turned into the will of the nation. There is no reason to ontologize the ‘political’—political modernity, in other words—with polarized, agonistic or antagonistic views. If conflict is part and parcel of political life, so is cooperation; poles may be created, but social life is plural and this has been the direction in which modernity has been moving. This sort of political perspective is not, in any case—and I should add: of course, in spite of Laclau—by any means the sole—even less the best—possible answer to the democratic shortcomings of liberal democracy, in general or in its more acutely undemocratic exemplars. Thinking of Schmitt as a democrat would be even more non-sensical, account taken of his own deceptive rhetoric, both in defence of political polarization or of direct identification that precludes pluralism and differentiation. Instead, radical democracy will come to the fore in the next chapter. The discussion of so-called populism hammers home that personification and the embodiment of collectivities in liberal democracy is not a deviation or a pathology. As a means to make present something

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immediately absent, it need not be opposed to ‘theatralization’—a dramaturgic performance—which is also, in different forms, always present in political modernity (including its most abstract site, the judiciary). Nor is it absolute, since identification is never complete, with popular sovereignty hovering above the whole process. Personification, embodiment, identification and ‘performance’ or ‘theatralization’ are aspects of political representation in modernity, unstable in their meaning and in the weight of their effectiveness and mutual relations, related to symbolic construction, specific body elements based on the similarity (and at times difference) between representatives and the represented, without detriment to the presence of many mediations in this regard (gender, race, ethnicity, class, caste, religion and region are prominent elements of the phenomenon). We do not need to adopt a view that relates personalization and embodiment to medieval-catholic perspectives; that is, we do not need to accept Schmitt’s own tricky arguments. There is no fundamental continuity, but a break, between that archaic Catholic universe and the modern imaginary (that is to say, there is no real ‘political theology’). There is, to be sure, a heritage which, as social memory, does not necessarily simply vanishes and may, deeply transformed, be present to some extent in the manifold p ­ rocesses whereby personification and embodiment are achieved.49 In particular there is really no ‘empty space of power’ with a pure abstract countenance. Nothing of what was said above amounts, however, to the idea that the strong personification of power is democratic. It tends to be linked to authoritarian or even autocratic features, which so many analysts identify in so-called populism. In several situations, personification equals the incarnation of popular desires and demands, imagination and concrete possibilities. Hence, it may imply, within certain limits, a democratic element of representation. It may energize popular movements. Nevertheless, if this is taken too far, the concentration of power—and eventually, the arbitrariness of its exercise—distorts the features of whatever sort of democracy, liberal or otherwise, skewing the tension between abstract and concrete excessively in favour of the latter and especially paralysing other political agents or reducing their capacity of intervention. False supernatural qualities supposedly linked to ‘charisma’ prevail. In what regards radical democracy, in which popular initiative and the thorough application of the equal freedom principle to politics is to be expected, against state and even personal political domination, the consequences may be absolutely detrimental.

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Notes 1. See David Held, Models of Democracy (Cambridge: Polity, 1987), pp. 6–7. For the loose use of ideal-types in the study of political regimes, Gary Goertz, Social Science: A User’s Guide (Princeton, NJ: Princeton University Press, 2006), pp. 83ff. 2. José Maurício Domingues, ‘Existential social questions, developmental trends and conceptual strategies’ (2015), in Emancipation and History: The Return of Social Theory (Leiden: Brill, 2017 and Chicago: Haymarket, 2018). 3. Wolfgang Streek, Vertagte Krise des demokratischen Kapitalismus (Frankfurt am Main: Suhrkamp, 2013). For the 1920s–1940s Third International debates, see Nicos Poulantzas, Fascisme et dictadure (Paris: Seuil/Maspero, [1970] 1974). 4. Fernando Henrique Cardoso, ‘On the characterization of authoritarian regimes in Latin America’, in David Collier (ed.), The New Authoritarianism in Latin America (Princeton, NJ: Princeton University Press, 1979). The debate within the organized left, to which Cardoso was not a part, revolved in large measure around this. 5. Achin Vanaik, The Furies of Indian Communalism: Religion, Modernity and Secularization (London and New York: Verso, 1997). 6. Colin Crouch, Post-democracy (Cambridge: Polity, 2004). 7. In this and the next item I partly draw upon, and further elaborate, ideas put forward in J. M. Domingues, ‘Political regimes and advanced liberal oligarchy’, Constellations (online first,  2018). Greater detail about the regime’s literature is also to be found there. 8. Poulantzas, op. cit., p. 80; Juan J. Linz, ‘An authoritarian regime: Spain’, in Erik Allardt and Stein Rokkan (eds), Mass Politics: Studies in Political Sociology (New York: Free Press, [1964] 1970); Totalitarianism and Authoritarian Regimes (Boulder, CO and London: Lynne Rienner, 2000). The political context of the publication of Linz’s works may partly explain why he did not stress the role of the police and of repression—the need to revise the notion of ‘totalitarianism’ as well as to distinguish it from the increasing number of sheer ‘authoritarian’ regimes. 9. See for instance Ruth Berins Collier and D. Collier, Shaping the Political Arena: Critical Junctures, the Labour Movement and Regime Dynamics in Latin America (Notre Dame, IN: University of Notre Dame Press, [1991] 2002), p.  789; Philipe C.  Schmitter, ‘Still the century of corporatism?’, Review of Politics, 36 (1974); Eli Diniz, Voto e máquina política. Patronagem e clientelismo no Rio de Janeiro (São Paulo: Paz e Terra, 1982); Gianpaolo Baiocchi, Militants and Citizens: The Politics of Participatory Democracy in Porto Alegre (Stanford, CA: Stanford University Press, 2004), pp. 18–21;

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J.  M. Domingues, ‘Instituições formais, cidadania e solidariedade complexa’ (2006), in Aproximações à América Latina (Rio de Janeiro: Civilização Brasileira, 2007). 10. Franz Neumann, Behemoth: The Structure and Practice of National Socialism (Chicago: Ivan R. Dee, [1942, 1944] 2009), pp. 533ff; Robert O. Paxton, The Anatomy of Fascism (New York: Alfred A. Knopf, 2004), chap. 5. The latter is especially less radical regarding the supposed total demise of the ‘normative state’. The distinction was introduced, leaning more on the ‘prerogative state’, by Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship (New York: Oxford University Press, 1941). A much more radical view of Nazism—asserting that it had moved beyond liberal capitalism and bourgeois domination, implicitly beyond modernity—was provided by Neumann’s critical theory colleague, Fridriech Pollock, ‘State capitalism: its possibilities and limitations’ (1941), in Andrew Arato and Eike Gebhardt (eds), The Essential Frankfurt School Reader (New York: Continuum, 1900). 11. Robert Dahl, Polyarchy: Participation and Opposition (New Haven, CO: Yale University Press, [1960] 1963); Idem, Democracy and its Critics (New Haven, CO: Yale University Press, 1989); Idem, On Democracy (New Haven, CO: Yale University Press, 1993); Linz, Totalitarianism and Authoritarian Regimes; J. J. Linz and Alfred Stepan, Problems of Democratic Transition (Baltimore, MD, and London: The Johns Hopkins University Press, 1996), chap. 3; Wanderley G. dos Santos, ‘Democracia em 3D’, Dados, vol. 41; Idem, ‘O sistema oligárquico representativo da Primeira República’, Dados, vol. 56 (2013); Larry Diamond, ‘Thinking about hybrid regimes’, Journal of Democracy, vol. 13 (2002). 12. Guillermo. O’Donnell and P. C. Schmitter, Transitions from Authoritarian Rule: Tentative Conclusions (Baltimore, MD, and London: The Johns Hopkins University Press, 1986); J. J. Linz and Alfred Stepan, Problems of Democratic Transition (Baltimore, MD, and London: The Johns Hopkins University Press, 1996). 13. Karl Marx, Der achtzehnte Brumaire des Louis Bonaparte, in K. Marx and Friedrich Engels, Werke, vol. 8 (Berlin: Dietz, [1852] 1960). 14. Partly deriving their views from Berlusconi’s Italy, this sort of issue is raised in Domenico Losurdo, Democrazia o Bonapartismo. Trionfo e decadenza del suffragio universale (Turin: Bollati Boringhieri, 1993); Nadia Urbinati, Democracy Disfigured: Opinion, Truth, and the People (Cambridge, MA: Harvard University Press, 2014). 15. Yasha Mounk, The People versus Democracy: Why our Freedom is in Danger and How to Save it (Cambridge, MA: Harvard University Press, 2018), especially Part I. 16. C. Tilly, Democracy (Cambridge: Cambridge University Press, 2003). Curiously, he refrained from applying this to his own country, the US. 17. The former is a better characterization than ‘sultanism’, such as discussed in H. E. Chehabi and J. J. Linz (eds), Sultanist Regimes (Baltimore, MR

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and London: John Hopkins University Press, 1998). The latter are discussed in G. O’Donnell, Modernization and Bureaucratic Authoritarianism: Studies in South American Politics (Berkeley, CA: University of California, Berkeley, Institute of International Studies, 1973); El Estado burocrático autoritario. Triunfos, derrotas y crisis (Buenos Aires: Editorial Belgrano, 1982). 18. J.  M. Domingues, Global Modernity, Development, and Contemporary Civilization: Towards a Renewal of Critical Theory (New York and London: Routledge, 2012), pp. 214–15. 19. James Chiriyankandath ‘“Democracy” under the Raj: elections and separate representation in British India’ (1992), in Niraja Gopal Jayal (ed.), Democracy in India (New Delhi: Oxford, 2001); Mahmoodi Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton, NJ: Princeton University Press, 1996); Jeff Goodwin, No Other Way Out: States and Revolutionary Movements, 1945–1991 (Cambridge: Cambridge University Press, 2001), Part 2; Fredrick Cooper, Colonialism in Question: Theory, Knowledge, History (Berkeley and Los Angeles, CA: University of California Press, 2005); Gary Wilder, The French Imperial Nation-State: Negritude and Colonial Humanism between the World Wars (Chicago: The University of Chicago Press, 2005). 20. See Carl Schmitt, Verfassungslehre (Berlin: Duncker & Humblot [1928] 1993), pp. 282–92. 21. Baiocchi, op. cit., p. 19. 22. Anthony Giddens, The Nation-State and Violence (Cambridge: Polity, 1985), pp. 301–03. 23. Santos, ops. cits.; D.  Losurdo, Rivoluzione d’ottobre e democrazia nel mondo (Naples: La Scuola de Pitagoras, 2015). Evidently, recognition of this should be at odds with his neo-Stalinist instance. 24. In this regard close to so-called defective democracy—but essentially an oligarchy, with greater restriction of rights—such as introduced by Wolfgang Merkel, Systemtransformation. Eine Einführung um die Theorie und Empirie der Transformationforschung (Wiesbaden: VS Verlag, [2000] 2010), pp. 30–39. 25. Especially Dahl, Polyarchy, pp. 2–5, 48–52; Idem, Democracy and its critics, pp.  107–18; Idem,  On Political Equality (New Haven, CO: Yale University Press, 2006), pp. 9–15, 51ff. 26. Idem, On Political Equality, chap. 6, 17–18. Note that formerly, in Idem,  On Democracy (New Haven, CO: Yale University Press, 1998), Dahl still believed that the matter for ‘developed democracies’ was to ‘perfect and deepen’ their features (p.  2), although recognizing that under capitalism and the inequalities it generated we could not go beyond polyarchy (p. 178). 27. Santos, ‘O sistema oligárquico representativo da Primeira República’.

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28. Aristotle, Politics and The Constitution of Athens (Cambridge: Cambridge University Press, 1996), pp.  95–96. Evidently, democracy such as discussed here is not the corrupted version of isonomy. 29. For an opposite argument, Jeffrey A.  Weeks, Oligarchy (Cambridge: Cambridge University Press, 2011). 30. Guillermo O’Donnell, ‘Delegative democracy’, Journal of Democracy, vol. 5 (1994); Idem, ‘Illusions about consolidation’, Journal of Democracy, vol. 7 (1996). 31. See, for an amazing empirical study and harsh indictment of contemporary US political system, inequality standing out therein, Larry M.  Bartels, Unequal Democracy: The Political Economy of the New Gilded Age (Princeton, NJ: Princeton University Press, 2008); for the growing strength of an increasingly powerful executive, with military influence, its own anti-democratic interpretations of law and opinion-pools-based politics, all militating against his former ‘constitutional triumphalism’, Bruce Ackerman, The Decline and Fall of the American Republic (Cambridge, MA and London: The Belknap Press of Harvard University Press, 2010); for the shadow security state with this engorged executive, Michael J.  Glennon, National Security and Double Government (Oxford: Oxford University Press, 2015). 32. Herve Kempf, La Oligarchie ça suffit, vive la démocratie (Paris: Seuil, 2010); Jürgen Habermas, Im Sog der Technokratie (Frankfurt am Main: Suhrkamp, 2013); Hauke Brunkhorst, Das doppelte Gesicht Europas. Zwischen Kapitalismus und Demokratie (Frankfurt am Main: Suhrkamp, 2014). 33. See Steven Levitsky and Lucan A.  Way, Competitive Authoritarianism: Hybrid Regimes after the Cold War (Cambridge University Press, 2001); Richard Sackwa, Putin: Russia’s Choice (New York and London: Routledge, 2004); Burak Gümü, Yunus Yoldar and Wolfgang Gieler (eds), Die neue Turkey (Frankfurt am Main: Peter Lang, 2015): Banu Bargu, ‘Year one: reflections on Turkey’s second founding and the politics of division’, Critical Times, vol. 1 (2018). 34. Said Amir Arjomand, After Khomeini: Iran and his Successors (New York: Oxford University Press, 2009); Samy Smooha, ‘The model of ethnocracy: Israel as a Jewish democratic state’, Nations and Nationalism, vol. 8 (2002). 35. Max Weber, Wirtschaft und Gesellschaft. Grundriβ der verstehenden Soziologie (Tübingen: J.  C. B Mohr [Paul Siebeck], [1921–22] 1980), pp. 17, 124ff, 448, 548–50, 822; J. Habermas, Legitimationsprobleme in Spätkapitalismus (Frankfurt am Main: Suhrkamp, 1973); Idem, Fazität und Geltung, pp.  47–57, 169; David Easton, A Framework for Political Analysis (Englewood Cliffs, NJ: Prentice-Hall, 1965), pp. 124–26. 36. Paula Diehl, Das Symbolische, das Imaginäre und die Demokratie. Eine Theorie politischer Representation (Baden-Baden: Nomos, 2015), pp. 106ff.

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37. Peter Sloterdijk, Kritik der zynischen Vernunft (Frankfurt am Main: Suhrkamp, 1983), vol. 2, pp. 442–43. 38. This is also the basis for the inappropriate and strange definition of fascist regimes as ‘authoritarian democracy’ by Dylan J.  Riley, The Civic Foundations of Fascism in Europe: Italy, Spain, and Romania 1870–1945 (Baltimore, MD: Johns Hopkins University Press, 2010), pp. 3–6. 39. Poulantzas, op. cit., pp. 370–73; Nicanor Zavaleta Mercado, ‘Notas sobre fascismo, dictadura y coyuntura de disolución’ (1979) and ‘Cuatro conceptos de la democracia’ (1981), in El Estado en América Latina (Cochabamba y La Paz: Los amigos del libro, 1990), pp. 6, 81. 40. Yves Cohen, Le Siècle des chefs. Une histoire transnacionale du commandement et de l’autorité (1890–1940) (Paris: Amsterdam, 2013). 41. C. Schmitt, Legalität und Legitmität (Berlin: Duncker & Humblot [1932] 1998). 42. From a phenomenological angle, one could argue that we might at least assess movements according to the degree of their challenge to the closure of the political space and their seemingly anti-liberal stance, as well as their personalist/organicist perspectives and demagogic discourse, in terms of a concept of populism. See P. Diehl, ‘Die Complexität des Populismus. Ein Plädoyer für ein mehrdimensionales und graduelles Konzept’, Totalitarismus und Demokratie, vol. 8 (2001). This still suffers, however, from the same problems criticized in what follows. Resentment would partake the same phenomenological ground. See Filipe Carreira da Silva and Mónica Brito Vieira, ‘Populism as a logic of political action’, European Journal of Social Theory, vol. 21 (2018). 43. Gino Germani, Política y sociedad en una época de transición. De la sociedad tradicional a la sociedad de masas. (Buenos Aires: Paidós, 1965); Idem, Authoritarianism, Fascism, National Populism (New Brunswick, NJ: Transaction, 1978); Ernesto Laclau, On Populist Reason (London and New York: Verso, 2005). For ‘agonism’, Chantall Mouffe, The Return of the Political (London and New York: Verso, 2006). A more flexible view, based on an understanding of Peronism as a symbolically composite constellation, was propounded early in E. Laclau, ‘Towards a theory of populism’, in Politics and Ideology in Marxist Theory (London: New Left Books, 1977). 44. Urbinati, op. cit., chaps 3–4; Andrew Arato, ‘Political theology and populism’, Social Research, vol. 80 (2013); A. Arato and Jean Cohen, ‘Populism, civil society and religion’, Constellations, vol. 24 (2017). In a more Gramscian contribution, inspired in Laclau’s early work, as well as committed to socialism, talk of ‘authoritarian populism’ harks back to the Thatcher phenomenon in 1970s–1980s Britain. Stuart Hall, Thatcherism and the Crisis of the Left: The Hard Road to Renewal (London: Verso and Marxism Today, 1988).

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45. For an overview of the debate in Latin America, including her own interpretation, see Maristella Svampa, Debates latinoamericanos. Indianismo, desarrollo, dependencia y populismo (Buenos Aires: Edhasa, 2016), chaps. 4 in Parts 1 and 2. Further, more general analysis is found in Yves Mény and Yves Surel (eds), Democracies and the Populist Challenge (Basingstoke and New York: Palgrave, 2002); Francisco Panizza (ed.), Populism and the Mirror of Democracy (London and New  York: Verso, 2005). I have discussed these issues in J.  M. Domingues, ‘The imaginary and politics in modernity. The trajectory of Peronism’ (2016), in Emancipation and History. 46. Federico Finchelstein, From Fascism to Populism in History (Oakland, CA: University of California Press, 2017). 47. See for instance Charles Debbasch, ‘Le Parti unique a l’épreuve du pouvoir. Les experiences maghrebines et africaines’, Annuaire de l’Afrique du Nord (Paris: Edition du CNRS, 1965); Aristide R.  Zolberg, Creating Political Order: The Party-States of West Africa (Chicago: Rand McNally & Co. 1966); Tunteng Kiven, ‘Toward a theory of one-party government in Africa’, Cahier d’Estudes Africaines, vol. 13 (1973). 48. R. Dahl, How Democratic is the American Constitution (New Haven, CO: Yale University Press, [2002] 2003), pp. 29–30; Ferenc Féher, The Frozen Revolution: An Essay on Jacobinism (Cambridge: Cambridge University Press and Paris: Maison des Sciences de l’Homme, 1983), pp. 58–67. 49. Diehl, Das Symbolische, das Imaginäre und die Demokratie, pp. 70–73 and chaps. 3–6. She draws upon Schmitt to make her conceptual and normative point against personification and embodiment in modernity—against him, in fact. C.  Schmitt, Römischer Katholizismus und politischer Form (Stuttgart: Klett-Cotta, [1923] 2008). This sort of issue is dealt with rather negatively as ‘descriptive representation’ and ‘symbolic representation’ in Hanna F. Pitkin, The Concept of Representation (Berkeley and Los Angeles: University of California Press, 1972). Richer in this regard and empirically laden is J. C. Alexander, The Performance of Politics: Obamas’ Victory and the Democratic Struggle for Power (Oxford: Oxford University Press, 2010).

CHAPTER 9

Radical Democracy

9.1   Democracy and Plebeianism This last chapter is dedicated to ask how political modernity may develop emancipatory politics considering a type of political regime in which democratic features become deeper than anything we have known. It supposes and bets on the openness of the future. Democracy has been a constitutive part of political modernity next to liberalism, with which it has blended, begetting liberal democracy, more tensely or more smoothly, usually with serious limitations. It has been subordinated in this amalgam, contributing with the idea and practices of representation, a variable level of opening of the public sphere and, in some versions, social mobilization in the societal side of the political system. The regimes analysed in the previous chapter lent the accomplishments and drawbacks of democracy in modernity a more concrete shape, with its increasing restrictions at present once again. If we move further and recall to mind the idea of form, especially of the rights-form discussed in Chap. 1, we may recognize that we have experienced our position in social life foremost as rights-holders at a basic level, depending of course on the concrete reach of rights and the consistency of the rule of law, rather than qua politically empowered citizens that democratically rule our countries, let alone the planet. Originally, the republic was treasured rather than democracy, an apparently unruly way of governing the public, especially in modern classical thought.1 As the former chapters documented, the struggle for democracy has however been constant. This was reflected in the analytical path we © The Author(s) 2019 J. M. Domingues, Critical Theory and Political Modernity, https://doi.org/10.1007/978-3-030-02001-9_9

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trod, examining sovereignty and representation, with its universalization, the expansion of rights and changes in law, the two sides of the political system and mediations between them, autonomy and freedom, projections of these elements onto the national plane and, finally, liberal democracy as a political regime. Democracy was eventually enshrined in the institutions of the modern liberal state somehow or another, despite fierce resistances, usually watered down, though. Nonetheless, political domination and citizenship have incessantly been at odds, entailing what can be dubbed an ‘existing contradiction’.2 It is at least inevitably latent, as partly derived from liberalism, partly connected to republicanism or socialism, and as a more general, unspecified demand of collective autonomy and participation. Liberal democracy was to a good extent framed by ‘mass parties’, in a time when large concentrations of working masses dominated the social and political landscape. The oligarchical features of these parties, and more generally of the political system, paradoxically accompanied the democratizing effects this large-scale participation produced, despite and alongside Michels’ ‘iron law’ of oligarchy. As analysed in Chap. 6, once individualization, autonomization and, without changes in solidarity and forms of political association, fragmentation started to set in, this sort of organization has had, at best, real problems to ‘represent’ society in the state political system. At worst, it has given it up, often gladly.3 What is more, and deeply disturbing, despite and alongside these societal shifts, we also saw in Chap. 8 that in the last decades the state has been moving away from democracy, getting stronger as well as having its political system once again extremely oligarchized, a process in which political parties play a central role, in an advanced, more sophisticated manner. Today, in any case, a rather constricted view of democracy has become normatively dominant in much of liberal thought and practice, without attention to the oligarchical limitations and menaces discussed in the previous chapter, beyond the recognition of the problems ingrained in it. This view underpins, for instance, Huntington’s definition of the ‘third wave’ of democratization, with his mix of procedural Schumpterian ‘elitism’ and restrictively defined Dahlsian polyarchy—an understanding therefore of democracy as selection of ‘elites’ through elections held with public debate and participation. This would be in accordance, he affirmed, with the development of its concept in advanced social sciences, which would have discarded charged normative accounts of democracy. Actually, this fit well with his diagnosis, alongside his Trilateral brothers in arms,

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with the definition of an ‘overload’ of decision making due to ‘excessive demands’ and the imbalance between democracy and authority, government and opposition, executive and congress, leading to ‘democratic distemper’.4 His bet was obviously, eventual rhetorical flourishes notwithstanding, on de-democratization. As Finley trenchantly observed years ago, it was in the context of this oligarchic restriction of politics by ‘elitist theory’ that the idea of democracy was widely accepted in the West, with an apology of popular ‘apathy’ (quite the opposite of the Greek experience in which he was a remarkable specialist).5 Whereas Dahl’s own affirmation, in his later work, that advanced views of democracy implied conflict,6 this should not, in this sort of account, be allowed to thrive. This was still a moment of expansiveness of liberalism, which was capable of theoretically and practically democratizing itself. The situation is not so bright now. Most mainstream political science accounts of regimes have been blind, until very recently in any case, to the deepening of the oligarchical features of really existing liberal regimes. Throughout this book, an opposite and broader tack has been adopted as to modernity and its problematic, limited democratic features. Deep democratization, in a radical direction, offers its ultimate horizon. We must move further in this critical direction. This is especially true insofar as we seem to be effectively past liberalism’s expansive moment, moving towards more oligarchy, the neoliberal unilateral restriction of actual political as well as social rights and state strengthening, against the democratic features of liberal democracy. Democracy has classically been the government of the ‘many’ and, against oligarchy as the government of the ‘few’—and rich—, it has been seen as the rule of the poor and plebeians. There is nothing to oppose in this characterization, with which the Marxist idea of the ‘proletariat’ as the ‘many’, the ‘universal class’, has both points of contact and disagreement (especially regarding the ‘lumpen-proletariat’, a category that lumps together disparate things).7 But, consistently with the autonomy of the political dimension such as discussed throughout this book, I want to concentrate the definition of democracy on the plebeians rather than on the poor, against oligarchy rather than directly the rich, account taken of the unavoidable social dimension of lack of privilege and ordinary humanity in the definition of plebeianism. As already argued, though, there is no direct translation of social and particularly economic into political power in modernity, either of the rich or of the poor, either of the bourgeoise or of the proletariat, the ‘working class’, even if a sort of conversion of one into the other is, through different mediations, possible and usual.8

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Globally, what I am calling plebeianism may appear in very different guises and under widely distinct vocabularies, always entailing the rejection of entrenched social and political privilege, often more directly entangled in other civilizations. Hybridizations are surely fraught with different ways of phrasing it. Overall, the telos of plebeianism would be ‘non-domination’; in other words, radical democracy, however, reaching this telos might mean the very idea of the plebeian. This was to a good extent the gist of Weber’s discussion of the late medieval and Renaissance city.9 Plebeians are those bereft of privileged family backgrounds whose connections, even when this includes violent rivalries, allow them to monopolize social power and build networks with the politically powerful, often they themselves and, if not, people they can influence and even colonize. Plebeians are ordinary women and men who may be the active subjects of the radicalization of democratization. Radical democracy will be—if it is ever to be—a plebeian venture. Yet, contrary to what was once cherished and beyond any sort of essentialism, there are no guarantees that they will choose this rather than some other, more authoritarian, path. Plebeianism stands, in principle or potentially, against also its sequestering by powerful, personalist leadership. The actual history of democratic struggles, as especially Latin America demonstrates, has included complicated arrangements, though, with so-called populism, actually different sorts of ‘Cesarism’, ‘progressive’ in the case in point, at once affirming and negating the egalitarianism plebeianism implies.10 Plebeians  can  be in awe of monarchies and even embrace radically autocratic regimes, as the case of fascism amply documents.11 Organizing our experience and our affects, p ­ lebeianism entertains a contradictory, ambiguous and ambivalent, relation to citizenship. On the one hand, it brings it to life in daily life. In modernity, it is connected to its basic rights, to its rights-form, making it thicker to some extent. On the other, it clashes with its abstract character, present even in its social component. What can be called the experience of plebeianism falsifies the supposedly equal status that citizenship putatively offers, if not necessarily with democratic consequences, in any case most usually propelling them. The experience of plebeianism is, in contrast to the strong and explicitly phrased rights-form and citizenship form, more weakly articulated. To a large extent it remains simply implicit, tacit. It is something felt rather than systematically conceptualized, though shared by most citizens, who are belittled by the overwhelming power of oligarchs. Plebeianism sets the horizon within which we move in political modernity, in a Husserlian sense, with the recognition that most people can never achieve great political influence individually. Indignation in the face of this restriction of

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equal freedom, as a political emotion, is closely connected to this sobering realization.12 It is only through collective organization, often social movements and parties, that most of us can have any more significant impact, contrary to the more immediate experience of power enjoyed by individuals with direct control of politically relevant resources (access and prestige, time and confidence, money and family ties). In addition, too easily do we see new forms of oligarchization emerging in organizations in principle committed to emancipation and democracy. The poor and the working classes furnish the bulk and the countenance of plebeianism, but increasingly large swathes of the professional middle classes and of what is left of the old petty-bourgeoisie tend to become part of it. Boundaries are, in any event, bound to remain imprecise in this sort of socio-political identity, within it and vis-à-vis the poor and workers.13 It is not simple to say how hierarchy would be expelled from or tightly controlled in political life so that plebeian democracy could mean a democratization of the liberal regime. This is even truer in the face of the ­development of advanced liberal oligarchy, in which the plebeian experience of powerlessness is stronger, pace its formal liberal democratic trappings.14 In any case, power holders must be intensively and constantly kept under the public gaze, made responsible for their shortcomings, failures and eventual crimes, as well as constrained to respond to plebeian views and demands. Yet there is no reason to stop there. We must leave the door open for new forms of democracy, for radical political forms of equal freedom with a necessarily plebeian imprint. This will perhaps lead us to a world in which the term, which implies already political inequality and lesser freedom for the majority, loses sense. The same is true for the change in economic relations that, beyond social rights, does away with plutocracy and even capitalism. There was a time when the definition of liberal, representative democracy as democracy overall, with no adjectives, was not well taken in the circles that aspired to overcome the institutional limitations of modernity. ‘Formal’ and ‘substantive’ types of democracy were often mobilized as opposing systems, for instance, with capitalism and power in the economic dimension emptying that formal sphere of content and genuine relevance.15 Especially after the downfall of ‘real socialism’, this became a more complicated argument to make, as if the configuration of the liberal democratic regime—an obviously particular modern historical form, by no means eternal—should be accepted dogmatically and acritically. It must be borne in mind that, regarding its intellectual elaboration, some strands of liberalism have been making significant contributions to democratic thinking. If we think of deeper democratization, in a society with

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the staggering, scalar level of complexity of modernity and of anything that may succeed it in the future, we will have to grapple with some sort and level of representative democracy. This is true irrespective of whether this is a better, more advanced dialogical form, providing ‘advocacy’ for electors rather than aristocratic insularity, or simply a second best.16 This is true as well whether direct forms, face-to-face or perhaps electronic, of democracy complement or combine with it or whether they prove ineffective. Unfortunately, this way of conceiving liberal democracy and the really existing liberal democratic regime are worlds apart, as they were even at the latter’s heyday. Even if it were in full swing and on the path to perfectibility—and it is not, advanced forms of liberal oligarchy instead are on the rise—there would be no reason to stop short of contemplating its possible far-reaching transformation and sublation. On the other hand, liberals, especially if democratically minded, have authentic motives for their qualms about Marxism’s commitments to democracy and pluralism, theoretically and practically. Liberals cannot be blamed either for their distrust of Marxism’s usual abstract belief in the possibility of simply abandoning the representative elements of modern political systems.17 We have discussed Marx’s view in Chap. 7. Strangely, not much more was, in this respect, proposed by the intellectual current that took his name. It has not moved beyond the continuously repeated claim about the radical democratic character of the ‘dictatorship of proletariat’ and the early twentieth-century growth of a communist council tradition. Even these were undertheorized. Basically, taking their cue from Marx’s and Engels’ Saint-Simonian blueprint, Marxists envisioned the end of politics and power relations, if not of authority.18 Marxism’s democratic conceptual record is, regrettably, not very strong, although Marxists have been, to this day, in practice, the true champions of popular democracy the world over, if they did not get to power in revolutionary processes, with both problematic assumptions about socialist democracy and against the fierce and violent resistance from the ruling collectivities displaced from power. When they were successful, things usually became far more ­complicated and have turned for the worse. Democracy eventually disappeared or was very limited under really existing socialist regimes, however their political system was called. We need to overcome the limitations of both camps, recognizing the achievements of liberalism and the actual importance of historical Marxism to the partial accomplishment of a democracy with mass participation.19 What we can more deeply learn from the experience of really existing socialism will have to wait for another occasion, though.

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In any case, a strand of more democratically minded liberals has started to show greater concern with the limitations of liberal democracy. Green is particularly sharp in this regard, despite his lack of optimism as to the possibility of far-reaching changes. His points are particularly well taken, even if somewhat obvious, except for the fact that liberals, as he contends, do not usually look straight into such problems. What he names the ‘shadow of unfairness’ in liberal democracy is close to my definition of its oligarchic features, although he does not dwell on the worsening of such conditions leading up to what I have defined as advanced liberal oligarchy in the previous chapter, especially the increasing maturation of a more closed political system, essentially of the ‘few’. Three, he argues, are the components of the shadow underlying plebeian negative experience: the difference between ‘selected cadres’ and the ‘great many’ plebeians that have no expectation of holding formal political power ever; the unverifiability of the effectiveness of representation, which at best can be presumed, not demonstrated; and the plutocratic character of social life, in socioeconomic and educational terms, which seeps into the political system, albeit through specific mediations.20 These are inevitable problems in modernity and liberal democracy; they loom large, we can add, in the recesses of the liberal democratic imaginary. Whether we can overcome them is an open question, but it should not be a moot point. Add to this the need for responsiveness of political systems. Merely the answer to substantive demands falls short, however, of addressing the political dimension of the problem in its specificity. At this point, a caveat must be made. I have throughout suggested, avoiding a peremptory verdict, that liberalism is now beyond its expansive moment. Indeed, it is highly improbable that it has much new in store and that it can spearhead democratizing processes, at least where liberal democracy or, rather, advanced oligarchy is established. That does not mean at all, as I have also already suggested, that its democratic components and tendencies are not valuable. On the contrary, they may be important precisely against those oligarchic trends and even the strengthening of the state. What is more, that negative assessment was cast at a very high conceptual level. Translating it into concrete political experience and struggles demands a series of mediations, which is not the task of this book to craft. Remaining therefore at that high conceptual level, suffice it to clearly intimate that, in many circumstances and with respect to many issues, liberal democratic values and institutions as well as democratic liberals may be, respectively, relevant resources and important forces in a progressive reconstruction of contemporary political systems and state structures. They are certainly not enough.

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9.2   Reason and Creativity, Rationality and the Imaginary Since Machiavelli and Hobbes, the modern imaginary has seen politics not only as a specific and autonomous dimension of social life. It has also been taken as an ontologically plastic domain.21 Instead of the fixity of forever given institutions, rooted in nature or in rationality, modernity initially set this political dimension as a social construction, contingent upon the desires and specific deeds of human beings, their constitutive will, which we shall examine below. Accordingly, political and social philosophers have tried in different ways, to imagine alternative paths and present a view of how this should be organized, sometimes however in a very restricted and actually reified perspective, thrusting that only one sort of structure could be erected. Overall, this has been the tack of those who argue for a direct and simple identification between democracy and liberal democracy. Variations would be of minor importance therein (parliamentary and presidential liberal democracy, for instance). Main institutions would be everywhere the same. In this regard, there is a blatant contradiction in this sort of position, with human intervention seen as the basis of what democracy is or should be, while diversity is foreclosed. A similar fate has befallen the council alternative, with its reification. We must reject this limitation in both cases and strive to open, once again, the political imaginary, taking on board the legal and political elements of liberal democracy that support liberty. Creativity attracted some attention at the end of the twentieth century. It seemed that it might constitute a ‘master-trend’ in the social sciences. Alas, it stopped short of its promise. As the historical horizon shrunk, with the global victory of neoliberalism and with what Fukuyama called ‘the end of history’, featuring liberal democracy as the only viable regime choice, creativity was sidelined as a strong theoretical issue. This must not lead us to conclude that things shall be forever the same. They are bound to change, for better or worse.22 We should not be barred from developing ‘thought experiments’ of what a different type of society could be. Yet, I have no intention of proposing a utopian vision of a future emancipated society. Even the anti-­ utopian Marx at times went too far in this regard, showing an assurance about the communist future we have plenty of evidence is not warranted. What truly matters is to think about political modernity and its possible overcoming with a focus on the present and possible developmental trends, perhaps capable of turning into reality some of its key values and

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imaginary components. This refers especially to autonomy, equal freedom and solidarity at the most general level. This partly entails a reconstruction of values and of more specific notions such as individual freedom, law and rights, sovereignty, active consent and constituent power. I shall dwell on them below. Before delving into that, a specific issue must be, finally, if not settled, at least unambiguously addressed. It has lingered tacitly, to some extent on purpose, since it was introduced in Chap. 1. Political modernity, including its notions of autonomy and freedom, has been premised on the idea that we are, or can be, independent beings, rational and responsible. Critical theories have bet on our capacity for even greater flights in a radically emancipated social formation the future may usher in. In his work on the imaginary and with more thorough elaboration elsewhere, Castoriadis stressed the ‘project of autonomy’, in individual terms and especially in what concerns collective self-determination. It is worth observing that it is not totally evident whether for him autonomy implies individual and collective rational self-determination or the capacity of the individual radical imaginary. In the latter, ‘displacement’ and ‘condensation’, as mechanisms derived from Freudian metapsychology taken up by Castoriadis, causally account for creativity and indeterminacy, the instituting moment of ‘society’. They do not obey identity logics. These mechanisms also generate, in my reading of his in this respect not exceedingly clear work, the unstable ‘magma’ floating in between those two poles. Generated by the radical, instituting imaginary, once hardened this magma would become the instituted aspect of social life. It seems that, for Castoriadis, we could eventually deal with both almost exclusively betting on rationally in terms of self-determination, taking recourse in the ‘ego’, although sometimes he seemed to bet for that on the freedom of unconditioned creation, that is, on the ‘radical imaginary’ and the unconscious. In this regard, we could raise against Castoriadis the criticism of being caught in the mesh of the imaginary, incapable of seeing through its enchantment, as Lacan, a target of his criticism, might put it. It is true that Castoriadis seemed to soften his notion of rationality through ‘elucidation’ as a historically situated approach to practical-philosophical issues and then with recourse to phronesis—practical wisdom, in the Greek tradition—as the basis of democratic deliberation.23 There is conceptual ­progress thereby, in the direction of a more modest sort of rationalism, but it is at best arguable whether the problem was really solved, especially regarding the relation between imagination/imaginary and reason/ rationality.

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Marx had a clear solution for this problematic: the fetishism of the commodity—and we can extend his reasoning to other sorts of fetishism—would be surpassed by some form of enlightened consciousness. The critique of political economy he articulated and the eventual constitution of a conscious proletariat as a revolutionary agent would dissipate all sorts of fetishism and the enchantment of the world which he deemed intrinsic to modernity. Initially, in Marx’s work, a Hegelian rationalist language was openly employed in this regard: the passage of ‘class in itself’ to ‘class for itself’. Soon after, along with Engels, he opted for plain talk, including the idea that the world created by the bourgeoisie demanded that humankind looked at its position and relations ‘soberly’ (mit nüchternen Augen), beyond the sacred halo permeating former modes of production. They seemed to suppose in this passage that modern society was already moving towards disenchantment, which it could reach only partly, and that the future demanded more of this.24 Marx may have refrained from stating such ideas about collective subjectivity and rationality so clearly later on, intentionally or not. Nothing suggests, however, that he changed his mind in this respect, with the fetishism of the commodity, on the other hand, evincing some tension with these passages, since it rested on a rather distinct comprehension of the bourgeois world, enchanted and irrational overall, as discussed in Chap. 1. This solution, dependent as it was upon Enlightenment rationalism and the view of a very centred and transparent collective subjectivity, is at this stage untenable. It presupposes a sort of subject we know is and shall not be available. A further drawback is the tacit supposition that there were and there are imaginary significations but that there shall no longer be once reason eventually prevails, objectively. This was a reasoning Marx extended rather directly to (or rather it originated there, in his youth) the illusions of morals, rights and law, his views stopping short of full ­elaboration.25 It may surmise that ‘magic’, in the broad sense he attributed to it in Capital, would be finally dispelled. Are we rational beings or does the very idea of the imaginary preclude this would-be mere phantasy of modern rationalism? Can we be fully autonomous or is this a far-fetched delusion? Is the imaginary a means by which we create and recognize ourselves, in which we grow and thrive, or is it a sphere in which we become alienated, our productions are estranged from us and we lose track of our true selves? Are imaginary significations essentially distinct from rational discourse?

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If we oppose the imaginary/magic to rationality/reason (subjective/ objective), we inevitably end up with a polarization, even a dichotomy. It implies either a circular reasoning—we are prisoners of irrational forms of the former—or thoroughly break through it with the latter—the spell of the imaginary would become therefore a relic of the past. We can certainly understand these issues more subtly, in a combination of imagination and reason in which they are entwined and hinge on each other. That is, there is no social formation which—against Marx and Weber—is not enchanted. Enchantment consists in a condition of its existence, actually, the means whereby the existential question of the necessary production of meaning is dealt with, although any symbolic universe may have alienating and oppressive features. On closer inspection, we should not speak of ‘disenchantment’ at all, instead of ways of meaningfully engaging with the world (however dry and thin an imaginary may be), regardless of whether magic as a way of manipulating reality does recede. The spell of citizenship and rights, in their (real) abstractness and institutional objectification, not so much precludes other experiences as it puts them through lenses in which our rationality and freedom as citizens and rights-holders dispel the concrete societal mess and subordinate the inequalities, to start with political, that structure modernity. There are no grounds, in order to break free from this reified universe, to embrace an also fetishized rationality. This does not detract from more modest forms of rationality and reason either, in their multidimensional definition and broadest scope, modesty stemming from the acknowledgement of their weaknesses or impurity. They include the means-ends chain—that is, instrumental rationality or utilitarian expediency. They are also connected to values and a systematic attitude in order that agents are able to stick to them. Finally, rationality and reason contain communicative aspects that entail the capacity for recognition and of achieving openness to others as well as higher levels of universality and inclusion. Thus, while these rational elements of individual action and collective movement are somehow embedded in and infused by that imaginary and cannot but exist within some of its historical articulations, nothing says that we ought to give up on them normatively. Can we suggest that the ‘ego’ is exactly the site of this more modest and manifold rationality complex? If so, this ‘ego’ would mediate between the imaginary, both internal to each of us and regarding what we socially share, and rationality, as the faculty we have to cope with the ‘reality principle’. It would never become independent of the symbolic-imaginary

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world in which our hermeneutical selves emerge and evolve. It could be seen as taking up the ‘radical’ elements thrown up by non-identity logic and labouring on them systematically. Evidently, a long investigation and methodical answers would be required to fully tackle this issue. This notwithstanding, variable levels of reflexivity/rationality can be pointed at in terms of the (internal as well as interactive) workings of ‘egos’ and ‘alters’.26 Suffice it here just to discard that polarization and point to the entanglement of the imaginary and rationality, imagination and reason, against too strong a view of alienation and similar theses, without giving in to irrationalism. In what concerns political modernity, this cluster of concepts has to be related to another, historically specific one, which is still important for political thought, although it is not necessarily explicitly formulated.

9.3   Will and Sovereignty, Constituent Power and Radical Democracy If, throughout this book, democratic elements of political modernity came up and were brought together above, there are a few of them and some others which are cardinal for a proper definition of the concept of democracy. We will analyse them now, leading to radical democracy as a category open to the future, hence with a higher level of indeterminacy than anything we have leant on hitherto. At the basis of political modernity, of its plasticity and our capacity for action, a concept has been of crucial importance: will, individual and collective. It has appeared at several stages in this book. Will has buttressed the legitimacy of political forms: it is only if and to the extent that we are in charge of our own will that we can consent to the power relations ingrained in those forms and become obliged to them. Moreover, in its voluntary and, above all, rational exercise (beyond mere psychological or physical compulsion, in our search for self-preservation or as a guarantee of freedom, property and the like), will makes us responsible for our promises and our acts. This is particularly true with respect to the fable-­theories of a social contract or pact, which is after all dependent upon its free exercise (the genealogy of the issue leading back to Saint Augustine and Saint Thomas Aquinas). It may be argued that the will is an opaque notion. If that is true, it did not stop the most central modern classical political authors, including Hobbes, Locke, Rousseau, Kant and a legion of others afterwards, from taking recourse to it to structure their

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arguments (other authors in turn, like Hegel, stressing rather the will of the state, represented by the monarch).27 Sovereignty, constituent power and democracy hinge, consequently, on the will. They may be entwined yet in practice there has been some or total disconnection between them at different stages. Originally, as we saw in Chaps. 2 and 5, sovereignty was state sovereignty. Political philosophers, from Hobbes to Rousseau through Spinoza and Locke, begun to push it downwards with their social contract theories (though often throwing it upwards again). The American revolution was suspicious of full popular sovereignty and state conventions. The elaboration of its constitutions was therefore seen as a limited sovereign venture. The process occurred consciously within the frame of inherited British law and was somewhat incremental, starting with state conventions and indirectly reaching the federal level. Yet, constituent power still undergirded them. With the revolutionary French Convention, the landscaped entirely changed. Constituent power was then deemed absolute, resting unconditionally on popular sovereignty, undeterred, immanently defined and stemming from below. This was interpreted in the sequence as the hallmark of democracy or the republic (‘democracy’ consisting in a problematic word since it evoked the poor and the many). It can be argued, in a more critical vein, that the liberal attribution of a strict juridical character to constituent power quickly tried to restrict its democratic and unruly potential. As either the ‘general will’ for Rousseau, the ‘common will’ for Sieyés or, implicitly, working-class will for Lenin, popular will would be at the roots of sovereignty and constituent power, although such notions sat uneasily with Marxist thought, whose project has been to totally overcome political modernity. Bear in mind that this is a vocabulary the former did not use and the latter only very partially accepted. The issues are there, notwithstanding. Whether representation was warranted distanced Sieyés from Rousseau, while Lenin accepted it in principle—then changing it, eschewing parliamentarism and embodying it in ‘working bodies’. He saw it positively expressed in revolutionary councils, just to have it snatched by the party afterwards, as the vanguard—the true representative of the will—of the proletariat.28 In turn, many liberals have blamed precisely this absolute sovereignty and constituent power for supposedly lying at the core of the havoc wrought by the French Revolution and similar violent phenomena thereafter. A solution would be to somehow limit and disperse sovereign constituent power physically and/or in time, according to a processual

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approach. Bringing it into the bounds of law, which could regulate it, would accompany this move, trimming its supposedly excessive autonomy and self-assertion, even if this standpoint is combined with a strong democratic commitment.29 Others, banking on ‘early modern’ republicanism, recommend exactly the opposite: to resume and radicalize constituent power, contra constituted power, invariably the womb of systems of domination thus far, although this does not necessarily mean a commitment to sovereignty. Homogeneity is sometimes demanded of constituent power. This is not however the case either of its founding interpreter, Sieyés, who speaks of the ‘common interest’ in a pluralist society which falls short of covering everything, or of more recent contributions, such as Negri’s or Habermas’, the former summoning a plural ‘multitude’ as the bearer of constituent power, the latter stressing a sort of communicative proceduralism.30 Can we simply give up on the idea of constituent power? This is doubtful. The same applies to sovereignty—as if we were living in a post-­ sovereignty era, both internationally and internally. Rejecting it would also be strange, for constitutions have recently received a lot of attention, even in sociology, while democracy may not need a ‘foundation’ yet demands popular underpinnings and the potentiality of unrestrained beginnings, rooted in the creativity of plebeians, the poor, the many, the multitude or whatever. It is difficult to see how, without those two elements, democracy would be defined.31 The modern conception of the will is obviously closely connected to its view of a centred agent, not only at the individual level. This emerged at several points in this book. Collective subjectivity was also conceived as highly centred, mostly ‘the people’ or ‘the nation’. Characterized as unitary and capable of concentrated causal impact, the will is fundamental for this understanding of collective subjectivity. These traits contribute, in turn, decisively to how the will is traditionally conceived. Constituent power and sovereignty both rest on and are intimately associated to, in political terms, this conceptual cluster. Do we not need to hold fast to this conception of collective subjectivity? Not at all. We can rethink it, as already suggested in Chap. 3, in a much more decentred mould. It may be based on a plural and decentred collective will, beyond the mere plurality of individual constituent agents, with juridical-political and societal-­ political aspects. This seats well with more decentred constituent power and procedural constitution-making, with in its decentred and plural collective subjectivity unfolding in space-time, dialogically. The mobilization

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of large communicative processes would be part of the process, whether a deeper consensus is achieved or mere compromises are crafted.32 It is not mandatory that we abandon a view of constituent power or of popular sovereignty once we take up this view. Short of a strong alternative democratic perspective, it would probably be unwise, at least in the medium term, to subdue what remains of popular sovereignty—perhaps as a normative horizon, right now increasingly bereft of influence over actual practices. We must not give up on a ‘politics of the extraordinary’, lending it a plural and self-limiting character to some extent, for it may structure itself as ‘principled action’ and ‘public deliberation’, whether or not bound by law in moments of instability and radicalization. Political autonomy and collective self-determination should remain at the core of democratic theory, in a more decentred way.33 Instituting and instituted moments are, therefore, dialectically related and sovereignty, in a complex society and through processes of dense communication, in a sort of high-intensity democracy, are contemplated, with constituent power duly empowered. This should entail a concomitant upsurge in collective responsibility, at various social levels as well as regarding nature at this advanced stage of modernity.34 How does this relate to radical democracy? The main referents in this discussion, irrespective of why they abandoned their own formulation in favour of sheer polarization and agonism, are Laclau and Mouffe. They tried to think of radical democracy as a permanent movement propelled by multiple collective agents. These would be capable of combining forces in a ‘hegemonic articulation’, of mainly a discursive character, beyond Gramsci’s more restrictive and, according to them, still economist view of ‘hegemony’ (whereas they went missing in the exclusivist haze of ‘discourse’). Those agents would set out not from a homogenous social fabric or project, but from their own particularities. Some sort of unification ensues from that ‘hegemonic articulation’, which is not, on the other hand, either given or fixed; it shifts according to discursive constructions and retains its basic constitutive plurality. Laclau and Mouffe relied partly on Lefort’s normative understanding of democracy as self-creation, with conflicts finding their way through a supple and at once steady sort of institutionality.35 They were not clear about the shape of institutions under a radicalized democratic regime, nor did they discuss its links with traditional, liberal-representative democracy. Yet it seems indubitable that, beyond the liberal framework, this would inevitably entail from time to time renewed institutional frameworks, created through some sort of con-

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stituent processes. Of course, in the terms set by former discussions in this book, the democratic radical regime must also stem from, or be built upon, a radicalization of the long-term trend towards the enhancement of citizenship and/or its shift beyond the liberal framework. The kinship of Lefort’s perspective with liberalism, although he stresses the conflictive character of democracy and its radicalization, implying its politicization, derives from the fact that he remains narrowly tied to the abstract definitions of political modernity sustained by this hegemonic worldview. Across this book, I have criticized this position, to which I have opposed the recognition of the developmental dialectic of the abstract and the concrete. I have drawn attention moreover to the actual and unavoidable processes of personification of power (which may result even in representation through identification or ‘incarnation’), whether we like this or not. Thereby a conflictive politicization of liberalism, which cannot be ever entirely overcome by rational argument, consensus and law, erupts. These are intrinsic, constitutive elements of political modernity, by and large, and of liberalism, in particular, pace the latter’s one-sided selfunderstanding. It is unlikely that—if, once and when radical democracy develops—it will preserve the exact features of the liberal democratic model. No normative criteria can guarantee that, there is no reason we should expect and desire it would. This includes the very definition of political modernity and its split constitutive nature, which cuts across all its main elements (viz. public/private, abstract/concrete, state/societal political system and so on and so forth) and is largely at the roots of its developmental dynamics. A total dominance of the concrete entails, however, real problems, contradicting equal freedom, in liberal democracy and beyond. At the end of the previous chapter, extreme personification was also already identified as detrimental to democracy, especially since it leads to the concentration of power and reinforces domination, undermining equal freedom. This occurs regardless of the social policies it produces and the level of social equality it may promote in what concerns material well-being. Popular will ends up usurped by these moves, which may be connected to strong Cesarist forms in which the will of the great personality and of his oligarchic circle prevails, with perhaps a very strong process of identification. This does not mean that personification may not sometimes further processes of democratization. Social life and history are complex and complicated in their instituting and instituted aspects. It is not helpful to demand that they appear otherwise or to substitute pure normative standards for the analysis of real political processes, while representatives are likely to

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remain, in their concrete features, in some measure, a form of incarnation of the represented in the political process. Evidently, nothing compels us to stake hopes on supposed ‘great leaders’. The concreteness of the myriad of individuals and collectivities consists instead in the referent for radical democratic politics, in tandem with juridical-political rules that furnish a level-playing field for their engagement, hence displaying some core abstract elements. Singular individuals and collective movements embody precisely those more general collective identities, to which they on the other hand contribute, becoming thereby a collective representation through symbolic identification. They fill the space of power taking turns. To reaffirm the point, there is a historical dynamic of assertion of concreteness which is internal to the actual unfolding of liberal democratic institutions, rather than external to them. This implies rights and the law, the state machine and individual and collective political expressions. Mostly, it has been ruling collectivities of different origins and kinds that have successfully operated these processes. In many cases worldwide, this has sometimes been propelled from below, with democratizing impulses, though. Examples would be endless, we do need to dwell on them here, but in a form of radicalized democracy they must predominate. We must therefore oppose, in general terms, Laclau’s strong embrace of ‘populism’. His solution actually discards pluralism in favour of much more substantialized unities, whether this is for him more of a construction, therefore contingent, or an ontological aspect of modernity, issues he also seemingly conflated.36 His ideas are wanting both analytically and normatively. What, in practice, radical democracy effectively involves must largely remain a moot point here, though, beyond intense politicization and a commitment to equal freedom and autonomy, connected to daily-life aspirations and struggles, that is to say, distant from traditional aristocratic conceptions of ‘the political’.37 Yet some suggestions have been made from time to time in order to energize contemporary democracy, starting from within its imaginary and institutional parameters, in some cases moving away from them. Unger, banking on his view of the radical plasticity of social life, suggested the introduction of ‘destabilizing rights’ that would allow for the steady introduction of legal and social changes. This might even require, with the acquisitions of liberalism preserved, a shift in the ‘function’ of some of its elements, as Neumann once adumbrated, beyond the simple dismissal of law.38 Rights, as power held individually and collectively, are what formally enables us, by common agreement, to

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do things we can do, as human beings, plebeians and whatever may come next; and, if we think of equal freedom beyond modernity, its equal power what we are more deeply considering, in whatever dimension, something partly adumbrated but incompletely realized in this civilization. Domination is thereby avoided, and we can move beyond subjective natural rights without being snared by a state-centric conception of rights. This is a (post)modernizing move necessary to boost and underpin the development of radical democracy. Capitalism and patriarchy, racism and ethnic dominance, imperialism and whatever forms of inequality and oppression, oligarchies and secretiveness, are sworn enemies of radical democracy. Overall, such changes may precipitate new ‘legal revolutions’, of a radical democratizing nature.39 Bureaucracy is surely not going to be simply replaced by direct citizen administration, certainly not in its daily minutiae. If we need to move beyond the liberal denial of its increasing role, this is a problem the left has not properly tackled either. What to do with and which direction lend to the huge contemporary state must necessarily be a concern. This is bound to raise controversial issues, theoretically and practically. In contradistinction, the idea of the ‘commons’, discussed in some detail in Chap. 6, is appealing, even if it is still an initial construction. It may impart new directions to those traditional modern elements. The older idea of councils is not to be simply forgotten: beyond its hypostasis, it may still furnish some sort of participatory element in the re-structuration of contemporary liberal democracies. Possibly better is to think of them within a renewed ‘duality of power’, alongside liberal democratic institutions. Participation has become a catchword and a complex practice, with its paradoxes (co-­ optation and the like), more or less directly associated to state structures. Historical shortcomings would not justify jettisoning its advances and potentiality.40 These innovations can be deployed against contemporary threats to democracy, further articulating theoretically their political meaning, beyond the untenable and dangerous idea of an end to politics, or at least, in a different configuration, of power relations. In whatever dimension, oligarchic political structures have been growing and must be combated. It is essential that we observe genuine alternatives and experiments social and political movements put forward across the world. Ideas and intellectuals are of the utmost importance, more than the anti-­ intellectualism of our age is wont to believe. How they connect to social movements and practices, through extended chains of mediation, is cru-

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cial too. In the end, the most decisive factors are the manifold collective subjectivities, popular and plebeian if it is to assume an emancipatory direction, with their plural will and decentred instituting/constituent power—perhaps also with a change in which communicative interchanges gain ground41—that are and shall be at the forefront of social change. They are the propellers, the underlying weavers of generative mechanisms that not only push in the direction of new developmental trends or towards the reinforcement of extant emancipatory ones, but also open up, in a discontinuist historical breakthrough, a new evolutionary path. Through a still forthcoming punctuated, non-linear sort of mutation, this would be produced by the multifaceted exercise of social creativity, whether intentionally or unintentionally, joining individual and collective subjectivities.42 Liberalism was such a successful mutation at a certain juncture, socialism and communism tried to replicate it, without being capable of holding their ground. What is in store for the future remains to be seen. All things considered, radical democracy is not, after all, really a type of modern political regime; or it is rather only partly simply a regime. It is the true soul of democracy, which may be corporified in specific sorts of regime, whatever its institutional moorings, whatever the regime form it may assume in the future.

Notes 1. The notorious democratic exception—to which extent consisting in a debated topic—is found, despite his pessimism regarding the sway of reason upon individuals, in Baruch Spinoza, Theological-Political Treatise (1670), chaps. 16–17, and the unfinished Political Treatise (1677) as well as Ethics (1677), especially Part IV, all in Complete Works (Indiana, IN: Hackett, 2002). Note that the translation of vulgus as ‘mob’ and of plebs as ‘common people’ (PT, chap. 7.27, pp. 719–20) totally obscures the proper meaning of a key passage. See also Étienne Balibar, Spinoza et la politique (Paris: Presses Universitaires de France, 1985); Marilena Chauí, Política em Espinosa (São Paulo: Companhia das Letras, 2003). Rousseau saw democracy as practically problematic (due to size, executive power, human fallibility) and suited for angels rather than men. He was sympathetic to elective aristocracies and thought mixed governments were inevitable. Besides, the ‘general will’ leaves little room for disagreement and argument. Jean-Jacques Rousseau, Du Contrat social, ou principes du droit politique (1762), in Ouevres complètes, vol. II (Paris: Seuil, 1971), chaps. 3.4–5. Control of assemblies by magistrates characterizes his views in

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Idem, Discours sur l’origine et les fondements de l’inégalité parmi les hommes (1755), in Ouevres complètes, vol. II (Paris: Seuil, 1971), ‘Dedicace’. Conflict between patricians and plebeians lies at the core of Niccolò Machiavelli, Discorsi sopra la prima deca de Tito Livio (1531), in Edizione nacionale delle opera di Niccolò Machiavelli (Roma: Salerno, 1997). Machiavelli and the late Spinoza held a positive view of the ‘multitude’, though the latter was keen on several exclusions. 2. Hauke Brunkhorst, Critical Theory of Legal Revolutions: Evolutionary Perspectives (New York and London: Bloomsbury, 2014), pp.  16, 173, 209–10, 324. 3. Maurice Duverger, Les Parties politiques (Paris: Armand Colin, [1951] 1954), Part I, chap. 2. See, for the mismatch between parties, oligarchies and the societal-political dynamic, Wanderley G. dos Santos, ‘O século de Michels: competição oligopólica, lógica autoritária e transição na América Latina’ (1985), in Paradoxos do liberalismo. Teoria e história (Rio de Janeiro: IUPERJ and São Paulo: Vértice, 1988). 4. Michel Crozier, Samuel P.  Huntington and Joji Watamuki, The Crisis of Democracy (New York: New York University Press, 1975); S. P. Huntington, The Third Wave: Democratization in the Late Twentieth Century (Oklahoma, OK: Oklahoma University Press, 1991), pp. 5–7ff. 5. Moses I.  Finley, Democracy Ancient and Modern (New Brunswick, NJ: Rutgers University Press, 1985, revised edition), p. ix. 6. Robert Dahl, Democracy and its Critics (New Haven, CO: Yale University Press, 1989), pp. 218–19. 7. Aristotle, Politics and The Constitution of Athens (Cambridge: Cambridge University Press, 1996), especially pp.  72ff. See also Andreas Kalyvas, ‘Democracy and the poor: prolegomena to a radical theory of democracy’, unpublished paper, New School for Social Research (2018). 8. My argument therefore resembles that of Martin Breaugh, La expérience plébéienne. Une histoire discontinue de la liberté politique (Paris: Payot, 2007). 9. Max Weber, ‘Die nichtlegitime Herrschaft (Typologie der Städte)’, in Wirtschaft und Gesellschaft. Grundriss der verstehende Soziologie (Tübingen: J. C. B. Mohr [Paul Siebeck], [1921–22] 1976). See also José Maurício Domingues, ‘The City. Rationalization and freedom in Max Weber’, Philosophy and Social Criticism, vol. 26 (2000). 10. J. M. Domingues, ‘The imaginary and politics in modernity. The trajectory of Peronism’ (2016), in Emancipation and History: The Return of Social Theory (Leiden: Brill, 2017 and Chicago: Haymarket, 2018). 11. Leon Trotsky, ‘Bourgeoisie, petty bourgeoisie and proletariat’ (1932), in Fascism: What it is and How to Fight it (Chipendale: Resistance Books, 2007), pp. 19–20.

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12. Jeffrey Edward Green, The Shadow of Unfairness: A Plebeian Theory of Liberal Democracy (Oxford: Oxford University Press, 2016), pp.  25ff, especially 39. He sets off from a radical sort of liberal political individualism. 13. See Carlos Forment, ‘Ordinary ethics and the emergence of plebeian democracy across the global south: Buenos Aires’ La Salada market’, Current Anthropology, vol. 56 (2015). 14. Green, op. cit., pp. 13–14. 15. For a recent statement in this tradition, according to which Greek democracy prevented the powerful from socially subordinating the poor, contrary to extra-political domination in liberal democracies, see Ellen Meiksins Wood, Democracy against Capitalism: Renewing Historical Materialism (London and New York: Verso [1995] 2016), pp. 202–03. This should be qualified, at any rate, at least in what concerns social and labour rights, let alone slavery. 16. Nadia Urbinati, Representative Democracy: Principles and Genealogy (Chicago: University of Chicago Press, 2006). 17. Noberto Bobbio, Quale socialismo? (Torino: Einaudi, 1976). 18. For a selection of texts and broad introduction, in which the certainty of a communist future is reaffirmed, see Ernest Mandel (ed.), Controle ouvrier, conseils ouvriers, autogestion (Paris: Maspero, 1970). In a RousseaunianKantian vein, Cornelius Castoriadis, Le Contenu du socialisme (Paris: Unión Generale d’Éditions, 1979). Democracy is the ‘autonomous society’ ‘giving itself its own law’, he says. See, for a comparison with other democratic theories, Craig Browne, ‘Between creative democracy and democratic creativity’, in Vrasidas Karalis (ed.), Cornelius Castoriadis and Radical Democracy (Leiden: Brill, 2014). 19. See, for a historically memorable polemic, N. Bobbio et al., Il marxismo e lo stato (Roma: Mondoperario, 1976). 20. Green, op. cit., pp. 3–7, passim. 21. Roberto Mangabeira Unger, Politics: The Central Texts (London and New York: Verso, [1987] 1997), pp. 3ff. 22. J.  M. Domingues, ‘Creativity and master-trends in sociological theory’, European Journal of Social Theory, vol. 3 (2000); Fredrik Jameson, PostModernism, or, the Cultural Logic of Late Capitalism (Durham, NC: Duke University Press, 1991); Francis Fukuyama, The End of History and the Last Man (New York: Free Press, 1992). He speaks now, less sanguinely and not really for democratic reasons, of ‘political decay’ in liberal democracies. Idem, Political Order and Political Decay (New York: Farrar, Straus and Giroux, 2014). 23. C. Castoriadis, L’Institution imaginaire de la société (Paris: Seuil, 1975), pp. 7–9, 138ff, 394ff; Idem, ‘Les intellectuels et l’histoire’ (1987), p. 130; Idem,  ‘Pouvoir, politique, autonomie’ (1988), pp.  160–61, 171, in Le

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Monde morcelé. Carrefours du labyrinthe III (Paris: Seuil, 1990). In the first pages of his magnum opus, Castoriadis even adopts a Lacanian definition of the imaginary and links the unconscious to alienation (the discourse of the ‘big Other’), however much he disavowed Lacan in the ‘Preface’ to the book. Subsequently, in it, his breach of the causal chain through displacement and condensation tacitly invokes how Kant and Sartre defined freedom: as unconditioned, let alone self-transparency and undisturbed rationality. We could also raise the perhaps unanswerable point of what the ‘real’ would mean for political modernity. See Jacques Lacan, ‘Fonction et champ de la parole et du language en psychoanalyse’ (1953), in Ecrits (Paris, Seuil, 1966); Idem, Le Seminaire, Book XI.  Les quatre concepts fondamentaux de la psychanalyse (Paris, Seuil [1964] 1973); J.  M. Domingues, Social Creativity, Collective Subjectivity and Contemporary Modernity (Basingstoke: Macmillan Press and New  York: Saint Martin’s Press [Palgrave], 2000), chap. 2. 24. Karl Marx, Misère de la philosophie (1847), in Oeuvres, vol. 1 (Paris: Gallimard, 1963), p. 135; K. Marx and Friedrich Engels, Manifest der kommunistischen Partei (1848), in Werke, vol. 4 (Berlin: Dietz, 1978), pp. 463–65. 25. K. Marx, Zur Juden Frage (1843), in K. Marx and Friedrich Engels, Werke, vol. 1 (Berlin: Dietz, 1981); Idem, ‘Kritik des Gothaer Programs’ (1875), in K. Marx and F. Engels, Werke, vol. 19 (Berlin: Dietz, 1987). 26. I have proposed a three-partite definition of ‘reflexivity’—non-identitary, practical and rationalized—partly to deal with this issue in Domingues, Social Creativity, Collective Subjectivity and Contemporary Modernity, chap. 2. The discussion of the ‘ego’ and the ‘reality principle’ is perhaps best formulated in Sigmund Freud, Das Ich und das Es (1923), in Studienausgabe, vol. 3 (Frankfurt am Main: Fisher, 1975). 27. Patrick Willey, Will and Political Legitimacy: A Critical Exposition of Social Contract Theory in Hobbes, Locke, Rousseau, Kant and Hegel (Cambridge, MA and London: Harvard University Press, [1982] 1999), especially pp.  3–10, 200–05; Chris Thornhill, German Political Philosophy: The Metaphysics of Law (London and New York: Routledge, 2007), pp. 81–83, 340–343. The somewhat arbitrary and dogmatic character of Hegel’s exposition partly stems from his necessity for affirming state will and substantiality above all else. Constitutions would be an issue internal to the state, utterly detached from constituent power and removed from a social contract, as his criticism of Rousseau makes clear. Georg Wilhelm Friedrich Hegel, Grundlinien der Philosophie des Rechts, in Werke, vol. 7 (Frankfurt am Main: Suhrkamp, [1820] 1986), §§ 257–320, pp.  398ff. While the tenets of liberalism are maintained, the pre-eminence of society is rejected. See Werner Maihofer, ‘Hegels Prinzip der modernen Staats’ (1967–68), in

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Manfred Riedel (ed.), Materialen zu Hegels Rechtsphilosophie (Frankfurt am Main: Suhrkamp, 1975). 28. Rousseau, op. cit., chaps. 1–6, 2.1–4; Emmanuel Joseph Sieyés, Qu’est-ce que le Tiers état? (Paris: Presses Universitaires de France, [1789] 2001), chap. 5; Vladimir I. Lenin, The State and Revolution: The Marxist Theory of the State and the Tasks of the Proletariat in the Revolution, in Collected Works, vol. 25 (Moscow: Progress Publishers, [1918] 1974), chap. 3. As is well known, Lenin drew upon Marx’s view of the ‘dictatorship of the proletariat’. See also Carl Schmitt, Verfassungslehre (Berlin: Duncker & Humblot [1928] 1993), pp. 61ff, 75ff, 91ff. He pretended to embrace full popular sovereignty just to collapse, in a very authoritarian perspective, its clever democratic veneer notwithstanding, the ‘people’ into its relation with leaders. Thereby Schmitt deflected and neutralized its potency, putting it to sleep after the latter were chosen. 29. Hannah Arendt, On Revolution (London: Penguin, [1963] 1990), chaps. 4, 6; Andrew Arato, Post-Sovereignty Constitution Making: Learning and Legitimacy (Oxford: Oxford University Press, 2016). 30. Sieyés, op. cit., chap. 6; Antonio Negri, Il Potere Constituente. Saggio sulle alternative del moderno (Roma: Manifestolibri, 2002); Jürgen Habermas, ‘Volkssouveränität als Verfahren’ (1988), in Faktzität und Geltung: Beitrag zur Diskurstheorie des Rechts und des demokratischen Rechtsstaat (Frankfurt am Main: Suhrkamp, 1992). Negri has tried to give up on the sovereign power of the multitude due to its apparently inherent homogeneity, distinguishing it  from ‘autonomy’, in Michael Hart and A. Negri, Assembly (New York and Oxford: Oxford University Press, 2017), chap. 3. 31. Arato (op. cit.) is highly critical of sovereignty and is keen on fragmenting constituent power, while a positive assessment of the link between them is forcefully asserted in A. Kalyvas, ‘Constituent power’, Political Concepts: A Critical Lexicon, vol. 3 (2013). See also Christopher Thornhill, A Sociology of Constitutions: Constitutions and State Legitimacy in Historical-Sociological Perspective (Cambridge: Cambridge University Press, 2012); Idem, A Sociology of Transnational Constitutions: Social Formations of the PostNational Legal Structure (Cambridge: Cambridge University Press, 2016). The pluralist novelties of the Latin American ‘left turn’, especially in Venezuela, Ecuador and Bolivia, are presented, overoptimistically, in Boaventura de Sousa Santos, Refundación del Estado en América Latina. Perspectivas desde una epistemología del Sur (Lima: Instituto Internacional de Derecho y Sociedad, 2010). He disregards the role of executives in shaping these constitutions and how participation is contradicted in their structure by strong presidentialism. Their links with previous processes in Brazil and Colombia are also symptomatically overlooked. See, more critically, Roberto Gargarella, La sala de máquinas de la constitución. Dos siglos de constitucionalismo en América latina (1810–2010) (Buenos Aires: Katz, 2014).

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32. Habermas, Faktizität und Geltung. I believe there is an opening in his ideas to operate the articulation between the abstract and the concrete, although this is limited, since he tends to emphasize the abstract universality of communicative action and its outcomes. 33. A.  Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt and Hannah Arendt (Cambridge: Cambridge University Press, 2016), pp. 254, 295–300. 34. J. M. Domingues, Modernity Reconstructed (Cardiff: University of Wales Press, 2006), especially Part 4. 35. Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy (London and New York: Verso, 1985); Claude Lefort, ‘La question de la democratie’ (1983), in Essais sur le politique (Paris: Seuil, 1986). 36. E. Laclau, On Populist Reason (London and New York: Verso, 2002). 37. Agnes Heller, ‘The concept of the political revisited’, in David Held (ed.), Political Theory Today (Cambridge: Polity, 1991), pp. 340–43. Although I find her perspective congenial, normatively it overly narrows the concept of ‘the political’ (which, in any event, I do not employ here) as ‘the practical realization of [equal] freedom’ in the ‘public domain’. Unfortunately, it may be the opposite of that. 38. Unger, op. cit., pp. 387–91; Franz Z. Neumann, The Rule of Law: Political Theory and the Legal System in Modern Society (Oxford: Berg, [1936] 1986), pp. 44ff. 39. Brunkhorst, op. cit. 40. Gianpaolo Baiocchi and Ernesto Ganuza, Popular Democracy: The Paradox of Participation (Stanford, CA: Stanford University Press, 2017). 41. Habermas, Faktzität und Geltung. 42. Domingues, Social Creativity, Collective Subjectivity and Contemporary Modernity, chap. 4.

Index1

A Absolutism, xiv, 34, 35, 40n28, 69, 76, 166n49, 177, 189, 224n14, 230 Abstract/concrete, xii, xv–xvii, 3, 5–8, 11, 14, 15, 17, 18, 24–26, 29, 31–35, 38n4, 42n30, 43n34, 49, 52–55, 57–64, 66–79, 84n28, 89n73, 90n75, 91–120, 136, 142, 144, 149–151, 154, 156–158, 160, 171, 187, 191, 197, 207, 211, 212, 217, 237, 238, 245, 246, 252n40, 255–257, 260–262, 271, 273–277, 280, 282, 289, 292, 294, 295, 299, 304, 305, 312n32 Abstractions, real, 7–11, 32, 36, 37, 38n8, 51, 57, 60, 79, 252n40 Adorno, Theodor, 95, 196 Africa, 28, 93, 243, 245, 281 Althusser, Louis, 176 Americas, xvii, 28, 69, 92, 93, 135, 187, 199n16, 210, 215 Anarchism, 140, 217, 221 Anderson, Benedict, 92

Angola, 245 Aquinas, Saint Thomas, 300 Arab Spring, 206 Arab world, 122n28 Arato, Andrew, 311n31 Arendt, Hannah, 75 Argentina, 155, 250n25, 279 Aristotle, 38n5, 255, 268 Asia East, 65 South, 202n37 Augustine, Saint, 300 Austin, John, 21, 24, 42n30, 43n37, 43n38, 44n43, 62, 133, 134, 177, 226n25, 231 Autocracy, 126n68, 261, 264, 265 Autonomism, 140, 221 Autonomy, 26, 52, 56, 65, 79, 99, 103, 111, 143, 145, 146, 150, 152, 155, 162n10, 171, 205–222, 229–247, 271, 276, 290, 291, 297, 302, 303, 305, 311n30

Note: Page numbers followed by ‘n’ refer to notes.

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INDEX

B Bauer, Otto, 92 Bendix, Reinhart, 189 Bentham, Jeremy, 21, 41–42n29, 42n30, 43n37, 51, 62, 81n5, 243 Berlusconi, Silvio, 284n14 Bhaskar, Roy, 115 Bismarck, 27 Blanqui, Jacobin Louis, 218 Bobbio, Norberto, 23 Bodin, Jean, 34, 255 Bolivia, 311n31 Bonaparte, Louis, 110, 154, 155, 157 Bonaparte, Napoleon, 112 Bonapartism, 154, 155, 166n49, 262, 267, 278 Bourdieu, Pierre, 174, 180, 189 Brazil, xviii, 66, 104, 111, 245, 311n31 Breton Woods, 234 Britain, 27, 28, 53, 54, 58, 72, 86n46, 92, 98, 213, 235 Bull, Hedley, 242, 251n36 Bureaucracy, 60, 62–67, 71, 74, 85n39, 100, 102–109, 114, 116, 136, 138, 141, 143, 144, 152, 176, 187, 190, 194, 201n28, 219, 231, 241, 259, 261, 270, 272, 274, 306 Burke, Edmund, 75 C Capabilities, 123n34, 171–175, 178–181, 183, 184, 186, 188–190, 193, 195, 196, 207, 232, 234–236, 240, 241, 243 Capital, 26, 54, 61, 80n3, 183, 187, 189, 218, 232, 252n40, 262, 266 finance, xii, 182, 183, 234, 257, 258, 269, 270

Capitalism, xixn4, 5, 16, 26, 30, 31, 97, 112, 143, 172, 189, 210, 216, 242, 257, 284n10, 285n26, 293, 306 Caste, 97, 101, 187, 257, 260, 282 Castells, Manuel, 232 Castoriadis, Cornelius, xvi, 29, 45n57, 196, 206, 297, 310n23 Categories, analytical, 33, 47n72, 79, 91 Cesarism, 155, 156, 280, 292 Charisma, 30, 63, 64, 111, 139, 149, 157, 271, 282 Chatterjee, Partha, 55 Chile, 227n30 China, 56, 65, 93, 188, 235, 238, 244, 245 Christianism, 212 Cicerone, 82n18 Citizenship, 6, 8–13, 18, 20, 24, 26–29, 31–34, 36, 49, 50, 55, 57, 64, 71–75, 78, 79, 92, 93, 96–102, 104–106, 112–117, 119, 135, 137, 150, 194, 196, 206–208, 210–212, 214, 216, 217, 219, 221, 222, 225n16, 236, 237, 239, 241, 244, 246, 290, 292, 299, 304 Civil disobedience, 221 Civilization, xii, xvii, xviii, 4, 6, 8, 30, 34, 36, 56, 66, 70, 73, 91, 95, 118, 119, 134, 141, 149, 180, 205, 206, 209, 210, 243–245, 251n36, 264, 292, 306 Civil society, 55, 67, 69, 74, 79, 135, 136, 150, 162n10, 215, 227n29, 238, 239, 273 Class, 4, 5, 26, 27, 44n45, 54, 55, 79, 110, 118, 122n21, 141–144, 147, 149–151, 154–156, 163n23, 166n50, 167n58, 172,

 INDEX 

182, 183, 187, 189, 194, 211, 217, 218, 220, 238, 257, 260, 265, 266, 277, 278, 281, 282, 291, 293, 298 Coercion, 43n37, 49, 59–61, 102, 150, 151, 159, 174–176, 181, 185, 188, 195, 233, 234, 265, 272 Collective subjectivity, xiii, xviii, 51, 80n4, 118–120, 134, 136, 138, 141, 142, 144, 145, 150, 151, 156, 159, 160, 173, 181, 183, 186, 190, 194, 234, 239, 259, 298, 302, 307 Colombia, 311n31 Colonies/colonial situation, 55, 75, 112, 231, 243, 244 Command, xii, 8, 21–23, 25, 34, 41n29, 42n31, 43n37, 43n38, 56, 57, 61, 62, 74, 80n5, 140, 144, 150, 173, 186, 218, 226n25, 271, 272, 274 Communism, 56, 187, 217, 218, 220, 227n29, 307 Consent, 42n30, 57, 75, 150, 173, 212, 265, 271–274, 297, 300 Constant, Benjamin, 135, 174, 289 Constituent power, xvii, 297, 300–307, 310n27, 311n31 Constitutionalism neo-, 104 social, 97 Corporatism, xiv, 122n28, 160, 260 Councils, 221, 260, 294, 296, 301, 306 Critical theory, xi, xviii, 212, 217, 238, 242, 297 ecumenical, xii, 212 Cromwell, Oliver, 112 Crouch, Colin, 258

315

D Dahl, Robert, 76, 139, 156, 261, 267–269, 291 Danton, Georg Jacques, 112 Davos, 234 de Tocqueville, Alexis, 75, 135 De-colonization, 241 Democracy liberal, xv, 135, 147, 156, 203n43, 258, 261, 262, 264–267, 273, 275, 276, 280, 281, 289, 290, 294–296, 304, 306, 309n15 radical, xvi, xvii, 264, 281, 282, 289–307 Democratization/de-democratization, 23, 64, 75, 78, 262, 264–266, 268, 290–293, 304 Diagnosis of the times, xvi Dialectic, xvi, xvii, 36, 71, 99, 111, 134, 158, 160, 182, 183, 195, 197, 217, 221, 242, 275, 303, 304 Diehl, Paula, xviii Differentiation, xii, xixn2, xixn3, 43n38, 87n61, 102, 114, 127n72, 141, 142, 245, 272, 281 Disenchantment, 30, 46n60, 298, 299 Domination, xvi, xviii, 22, 23, 26, 28, 30, 33, 54, 58, 63, 64, 70, 75, 78, 80n3, 80n4, 82n13, 109, 117, 125n54, 136, 139–141, 149, 150, 157, 170, 172, 174, 178, 189, 193, 196, 197, 209–217, 220–222, 242–247, 263, 265, 266, 271, 272, 274, 276, 281, 282, 284n10, 290, 302, 304, 306, 309n15 Double hermeneutics, xiv, 174, 277 Downs, Anthony, 85n39, 193 Dunleavy, Patrick, 192 Durkheim, Emile, 43n38, 46n58 Dworkin, Ronald, 23, 124n48

316 

INDEX

E Easton, David, 134, 136–138, 144, 272 Ecuador, 311n31 Ego, 217, 297, 299, 300, 310n26 Eisenstadt, Shmuel N., 105 Elias, Norbert, 180, 188, 189, 196, 239, 240 Elites, 76, 133, 139, 140, 146, 153, 155, 156, 277, 278, 290 Engels, Friedrich, 142, 149, 163n20, 219, 226n26, 226n27, 294, 298 Enlightened despotism, xiv, 177 Ethnicity, 92, 93, 97, 141, 143, 211, 282 Ethnocracy, 270 Europe, xvii, 21, 27, 28, 55, 63, 70, 99, 102, 104, 106, 110, 116, 147, 158, 187, 188, 207, 210, 214, 231, 239, 240, 243, 244, 261, 262, 265, 278 European Union (EU), 232, 233 Evans, Peter, 65 Existential social questions, 4 Experience, 6, 7, 17, 18, 23, 24, 33, 36, 70, 106, 112–115, 126n65, 152, 187, 218, 222, 280, 291–295, 299 F Family, 28, 38n5, 54, 141, 142, 150, 210, 217, 251n36, 257, 292, 293 Fascism, xiv, 110, 133, 160, 161, 166n49, 257, 258, 261, 262, 274, 277–280 Fatherland/motherland, 94 Ferrajoli, Luigi, 23, 124n48 Fetishism, 6, 7, 30, 34, 36, 46n59, 49, 101, 214, 298 Finley, Moses I., 291

Form, xiv–xvi, xviii, xixn4, 3, 5, 6, 8, 11, 19, 26–28, 30, 32, 38n5, 40n28, 43n38, 51, 52, 54, 59, 67, 73, 75, 76, 78, 89n73, 97, 98, 101, 112, 113, 116, 124n50, 134, 139, 141, 142, 146, 147, 150–152, 164n24, 170, 173, 182, 188, 192, 197, 208, 210, 212, 213, 215, 219, 221, 222, 231, 244–246, 255, 256, 258, 259, 262, 264–266, 269, 271, 272, 274, 276, 279, 280, 282, 289, 290, 292–294, 296, 298–300, 304–307 Foucault, Michel, 61, 109, 142, 175, 176, 196, 198n13, 220 France, 27, 58, 86n46, 92, 110, 127n68, 154, 235 Frankfurt School, xi Freedom, xi, xiv, 3, 9, 10, 12–14, 16, 18–20, 23–25, 28, 38n12, 42n31, 44n45, 49, 51, 52, 63, 68, 74, 79, 82n12, 85n39, 96, 100, 102–104, 108, 111, 113, 123n34, 135, 148, 150, 169, 171, 194, 197, 207–208, 210, 212–218, 220, 237, 242, 243, 246, 263, 274, 290, 293, 297, 299, 300, 310n23 equal, 15, 100, 101, 113, 208, 213, 237, 242, 246, 271, 275, 282, 293, 297, 304–306 Fujimori, Alberto, 279 G Games, 139, 140, 146, 179, 182, 183, 185, 186, 201n30, 235, 237, 266 Gandhi, Mahatma, 55 Garapon, Antoine, 109 Gender, 4, 97, 118, 141, 143, 205, 211, 238, 260, 282

 INDEX 

Genealogy, 300 Germani, Gino, 155, 167n52, 209, 277, 279 Germany, xviii, 27, 56, 94, 104, 235 Giddens, Anthony, 46n58, 108, 176, 182, 209 Globalization, 93, 104, 212, 229, 232, 237, 238, 242, 258 Governance, 147, 249n15 Gramsci, Antonio, 150, 155, 159, 160, 162n10, 176, 181, 234, 280, 303 Green, Jeffrey Edward, 295 Grotius, Hugo, 34, 40n28, 82n18, 224n14, 243, 247n5 Guicciardini, Francesco, 82n18 Guimarães, Cesar, xviii H Habermas, Jürgen, 39n13, 44n45, 89n73, 109, 136, 139, 169, 196, 222, 271, 302 Haiti, 27 Hardt, Michael, 220, 227n29 Hart, Herbert L.A., 23 Hayek, Friedrich A., 56, 83n21, 102, 135 Hegel, Georg Wilhelm Friedrich, xiii, 5, 36, 42n34, 44n45, 47n72, 51, 63, 70, 74, 79, 216, 231, 301, 310n27 Philosophy of Right, xii, 79 Hegemony, 93, 150, 151, 153, 155, 157–160, 167n52, 172, 176, 181, 207, 234, 235, 249n16, 261, 265, 273, 280, 303 Herder, Gottfried, 94 Hindutva, 258, 278 Hinze, Otto, 189 Hobbes, Thomas, 18, 19, 21, 22, 34, 35, 41n28, 49–51, 62, 73, 82n18, 224n14, 226n25

317

Hohfeld, Wesley Newcomb, 11, 16, 39n16, 39n17, 44n43 Honneth, Axel, 24 Horkheimer, Max, 95, 196 Huguenots, 162n9 Human rights, 10, 20, 21, 104, 229, 236–239, 242, 244, 250n26 Humboldt, Wilhelm von, 102 Huntington, Samuel P., 155, 290 I Ideal-types, 30, 63, 105, 261 India, 66, 93, 114, 187, 246, 257, 258, 278 Indians, 28, 45n52 Interaction, 4, 7, 11, 12, 16, 17, 29, 54, 57, 140, 142, 153, 171, 173, 192, 196, 217, 236 International Monetary Fund (IMF), 233, 234 International relations theory, xi, 230, 249n16 Islam, 273 Israel, 270 Italy, 207, 284n14 J Japan, 28, 55, 56, 83n19, 86n46, 188, 235, 245 Jellinek, Georg, 22, 39n17, 42n33, 51, 63, 80n4, 84n28 Jessop, Bob, 143 Jurisprudence, xi, 7, 20, 39n17, 43n38, 59, 98, 226n25 K Kalyvas, Andreas, xviii Kant, Immanuel, xiii, 9, 38n12, 41n28, 42n31, 49, 85n37, 89n73, 215, 237, 310n23

318 

INDEX

Kelsen, Hans, 22–25, 42n33, 43n37, 58–60, 63, 80n4, 84n28, 127n82, 172 Keynesianism, 194 Kirchheimer, Otto, 103 Kirchner, Néstor and Cristina Fernandez de, 279 Knöbl, Wolfgang, xviii Korea, 65 L Lacan, Jacques, 297, 310n23 Laclau, Ernesto, 157, 277, 281, 287n43, 287n44, 303, 305 Latin America, 92, 111, 126n65, 155, 158, 190, 227n30, 244, 246, 258, 262, 277, 279, 280, 288n45, 292 Law common/civil, 16, 38n4, 43n37, 53, 58, 83n27, 107 natural, 18, 19, 21, 22, 41n28, 47n69, 82n18, 114, 122n24, 212, 230, 243, 248n5 rule of, 51, 52, 60, 62, 66, 69, 82n12, 103, 105, 107, 112, 135, 177, 274–276, 289 Legal meta-capability, 174, 233 Legitimacy/legitimation, 70, 93, 103, 114, 180, 181, 196, 197, 237, 241, 265, 271–277, 300 Lenin, Vladimir I., 159, 219, 226n26, 227n29, 301, 311n28 Lévi-Strauss, Claude, 32 Liberalism, xi, xiv–xvi, 4, 23, 35, 50, 68, 70, 73, 77, 82n18, 87n61, 94, 96, 98, 103, 108, 110, 111, 115, 134, 135, 149–153, 156, 158, 161, 162n10, 171, 176, 177, 195, 201n28, 207, 215, 225n15, 233, 239, 243, 246, 279, 280, 289–291, 293–295, 304, 305, 307, 310n27 social, 96, 100, 102, 115

Linz, Juan J., 261, 283n8 Locke, John, 18, 19, 22, 34, 35, 39n22, 52, 72, 76, 82n18, 94, 214–216, 300, 301 Lot, 28, 56, 69, 87n64, 92, 142, 150, 203n51, 219, 221, 257, 273, 302 Lukács, Gyorg, 5, 38n8, 101 M Machiavelli, Niccolò, 4, 81n7, 82n18, 134, 255, 296, 308n1 Madison, James, 75, 88n69 Magic, 30, 32, 46n63, 64, 113, 298, 299 Managing, 142, 173, 175, 179, 183, 185, 188, 195, 232, 243 Mann, Fritz Karl, 176, 180, 189 Mann, Michael, 64, 143, 149 Manza, Jeff, xviii Marat, Jean-Paul, 112 Market, xvii, 8, 17, 30, 31, 46n59, 54, 67, 85n39, 92, 96, 102, 115, 117, 135, 141, 142, 150, 176, 187, 210, 217, 279 Marshall, T.H., 8, 27, 79, 108, 112 Marx, Karl, xi–xiii, xixn4, 5, 6, 29–31, 34, 36, 37, 38n5, 38n8, 46n58, 46n59, 47n72, 64, 79, 98, 101, 116, 142, 149, 154, 155, 157, 163n20, 175, 187, 188, 209, 216, 218–220, 226n25, 226n26, 238, 262, 278, 294, 296, 298, 299, 311n28 Capital, xii, xiii, 6, 30, 34, 37, 98, 116, 187, 298 Marxism, xvii, 4, 5, 109, 127n71, 143, 150, 154, 187, 220, 252n38, 262, 279, 294 Materialization, 171, 175, 179, 185, 188, 195 Mechanisms, 77, 86n46, 106, 115, 117, 118, 120, 140, 144,

 INDEX 

149–152, 157, 158, 160, 171, 182, 187–197, 203n52, 209–217, 221, 222, 226n26, 229, 239–242, 245, 246, 259, 263, 281, 297, 307 Media, 142, 147, 148, 262, 264, 266, 267, 270, 276, 278, 279 Mediation, 11, 20, 23, 25, 49, 50, 52, 71, 73, 78, 100, 135, 139, 142–149, 160, 179, 207, 217–222, 233, 258–260, 262, 264–267, 282, 290, 291, 295, 306 Menem, 279 Mexico, 97, 245 Michelet, Jules, 92 Michels, Robert, 164n31, 290 Military, 66, 141, 143, 144, 154–157, 160, 175, 188, 191, 218, 236, 237, 241, 242, 245, 258, 259, 266, 286n31 Mill, John Stuart, 63, 70, 73, 75, 76, 87n64 Milliband, Ralph, 142, 143 Modernity, xi–xviii, xixn2, 3–11, 15, 17, 18, 20, 26–32, 34, 36, 46n61, 49, 50, 53, 54, 56–58, 60, 61, 63, 66, 67, 69, 70, 72–74, 78, 79, 87n61, 91–95, 97–99, 102–105, 107, 108, 110–116, 118–120, 121n17, 134–136, 138, 139, 141, 149, 151, 155, 157, 159–161, 167n58, 170–173, 175, 178, 180–183, 188, 189, 196, 197, 200n20, 205, 206, 208–217, 221, 222, 229, 233, 236–238, 242–247, 255–258, 261–265, 269, 270, 272–275, 277, 279–282, 284n10, 288n49, 289, 291–301, 303–306, 310n23 phases, 118, 170, 172, 176, 181, 182, 184, 194, 195, 201n28, 221, 244, 276

319

Modernizing moves, 119, 160, 161, 181, 188, 191, 271, 281, 306 Modi, 278 Montesquieu, Charles de Secondat de, 255 Morgenthau, Hans J., 177 Mosca, Gaetano, 133, 134, 139, 161n3 Mouffe, Chantall, 166n50, 278, 303 Moulding, xiv, 31, 95, 99, 102, 117, 122n28, 124n50, 145, 171, 173–176, 179, 183–185, 188, 194, 195, 232, 234, 243, 279, 302 N Nation, 74, 76, 77, 91–95, 99, 118, 136, 157, 158, 161, 211, 230, 231, 238, 241, 243, 251n36, 273, 278, 279, 281, 302 Nature, xvi, 3–7, 19, 30, 31, 36, 50, 51, 58, 73, 114, 115, 127n72, 136, 138, 140, 171, 173, 174, 195, 196, 207, 218, 230, 241, 243, 246, 255, 257, 261, 270, 275, 296, 303, 304, 306 Nazism, 95, 110, 160, 161, 255, 261, 273, 278, 284n10 Negri, Antonio, 220, 227n29, 311n30 Nehru, Jawaharlal, 55 Neoliberalism, xv, 56, 96, 100, 102, 113, 135, 169, 176, 177, 238, 258, 279, 296 Neo-Thomists, 47n69 Network, xvii, 20, 175, 180–182, 209, 232–235, 238, 292 Neumann, Franz Z., 103, 284n10, 305 New Left, 169, 217 Nietzsche, Friedrich, 220 Niskanen, William A., Jr., 85n39, 192, 203n44, 203n46 Non-Governmental Organizations (NGOs), 145, 238

320 

INDEX

O O’Donnell, Guillermo, 269 Oligarchy, xv, 75, 164n31, 255, 257, 261, 265–269, 272, 276, 280, 285n24, 290, 291, 293–295 Operaismo, 227n29 Organizations, 268 P Pareto, Vilfredo, 133, 134, 139, 161n3 Parsons, Talcott, xiii, 46n58, 144, 152, 153 Participation, 81n7, 133, 135, 146–148, 207, 213, 214, 221, 222, 234, 241, 246, 259, 261, 264, 266, 274, 275, 290, 294, 306, 311n31 Parties, 78, 114, 141, 146, 147, 156, 160, 164–165n31, 165n32, 266, 281, 290, 293, 308n3 Pasukanis, Eugeny B., 5, 7, 16, 30, 36 Path dependency, 128n81, 190, 240 Patrimonialism, 80n3, 233 Perón, Juan Manuel, 279 Peronism, 45n58, 155, 167n55, 277, 287n43, 308n10 Phenomenology, 29, 45n57 Plebeians, 95, 156, 291, 292, 295, 302, 306, 308n1 Police, 60–62, 64, 71, 81n5, 106, 108, 110, 111, 138, 140, 141, 143, 176, 184, 191, 236, 259, 263, 264, 273, 283n8 Political, the, 138–141, 143, 144, 146–153, 155–157, 159–161, 182, 183, 186, 193, 195, 209, 216, 221, 222, 227n29, 229, 231, 232, 235, 245, 255, 256, 258–260, 268, 269, 274, 277–280, 283n8, 287n42, 289–292, 295

Political science, xi, 91, 203n44, 291 Political system, xv, xvi, 73, 75, 78, 79, 120, 133–161, 181–183, 186, 190, 193, 195, 218, 222, 229, 231, 232, 235, 239, 242, 245, 246, 255–260, 265–272, 274–276, 278–281, 286n31, 289, 290, 294, 295, 304 Polyarchy, 139, 261, 267, 268, 285n26, 290 Populism, xvi, 90n77, 157, 262, 277–282, 292, 305 Positivism, 20–24, 39n13, 42n31, 58, 84n28 Poulantzas, Nicos, 5, 142, 143, 149 Power, xii, xv–xvii, xixn2, 4, 8, 9, 11–13, 15–26, 28, 33–35, 41n28, 42n30, 52–54, 56, 59–62, 66–73, 75–79, 93, 95, 96, 99, 100, 103, 104, 109–111, 113, 114, 117, 118, 122n24, 125n54, 133, 134, 136–144, 146, 148, 151, 160, 163n18, 169–197, 205, 207–212, 214, 230, 272, 304, 306, 310n27 Private/public, xvi, 3–7, 9, 13, 16, 19, 23, 26, 35, 43n38, 50, 52, 56–59, 68, 71, 75, 79, 80n3, 97, 103, 107, 114, 135, 136, 141, 143, 200n26, 201n28, 207, 235, 247n5, 260, 304 Property, 13, 14, 16, 17, 20, 22, 27, 28, 40n26, 51, 52, 56, 60, 97, 103, 104, 115, 119, 161n6, 177, 205, 207, 213–216, 220, 224n13, 243, 269, 300 Proudhon, Pierre J., 217, 218, 221, 226n26, 226n28 Public choice, 62, 66, 85n39, 86n53, 89n73, 190, 192, 193 Public/private, 235, 304 Pufendorf, Samuel, 19, 50, 243

 INDEX 

R Race, 4, 92, 97, 141, 143, 211, 238, 260, 282 Rationality, xvii, 13, 30–32, 46n63, 63–66, 72, 74, 75, 78, 86n49, 103, 113, 114, 135, 139, 196, 215, 272, 275, 296–300, 310n23 Rational utilitarian expediency, xiv, 77, 135, 170, 196, 232, 273 Realism, xiii, 47n72, 115, 128n73, 146, 230, 236, 247n2 Recognition, 9, 24–27, 40n26, 43n37, 57, 80n3, 97, 99, 135, 160, 166n44, 212, 217, 230, 240, 241, 248n14, 271, 290, 292, 299, 304 Reflexivity, 109, 125n58, 152, 300, 310n26 Regimes, political, xvii, 75, 160, 255–258, 260, 261, 264, 271–273, 283n7 Religion, xii, 30, 32, 92, 102, 113, 114, 127n71, 207, 257, 260, 273, 282 Renan, Ernest, 92 Representation, 17, 46n58, 69–79, 88n67, 88–89n70, 98, 114, 120, 126n65, 134, 135, 139, 144–147, 152, 156, 182, 225n16, 235, 259, 260, 262–266, 268, 274, 276, 280–282, 285n19, 288n49, 289, 290, 295, 301, 304, 305 Rights, xi, xii, xv, 3–37, 49–57, 59, 61, 62, 64, 68, 71–79, 84n28, 87n61, 89n70, 91–104, 106–110, 112–114, 116, 117, 119, 127n72, 134, 150, 151, 158, 170, 177, 178, 193, 194, 196, 197, 203n43, 205, 207, 208, 210, 213–217, 219, 221, 222, 224n13, 225n21, 229, 234,

321

236–239, 241–244, 246, 258, 261–264, 266, 267, 274, 289–292, 297–299, 303, 305, 306, 309n15 Robespierre, Maximilien, 112 Rosanvallon, Pierre, 94 Rousseau, Jean-Jacque, 18, 19, 34, 35, 41n28, 53, 75, 76, 79, 87n64, 89n70, 89n73, 89n74, 94, 121n11, 215, 300, 301, 307n1, 310n27 Russia, 219, 235, 245 S Saint Just, Louis Antoine L. de, 112 Santos, Wanderley Guilherme dos, xviii, 268 Sartre, Jean-Paul, 92, 310n23 Sassen, Saskia, 201n35, 234, 248n8, 248n12, 249n18, 250n23 Saudi Arabia, 245 Savigny, Friedrich Carl von, 42n33, 51 Scalar configuration, 229, 232, 234 Scandinavia, 172 Schmitt, Carl, xii, 22, 70, 95, 103, 111, 177, 251n36, 273, 277, 278, 281, 282, 288n49, 311n28 Schumpeter, Joseph A., 76, 139 Security, 14, 19, 27, 44n43, 51, 52, 55, 60, 61, 72, 76, 102, 121n21, 177, 196, 232, 233, 236, 242, 286n31 Sieyés, Emmanuel Joseph, 301, 302 Slavery, 27, 53, 213, 215, 216, 224n14, 248n5, 309n15 Social contract, 18–21, 32, 34, 41n28, 57, 79, 100, 116, 122n24, 300, 301, 310n27 Socialism, 23, 56, 92, 97, 161, 206, 217, 269, 278, 287n44, 290, 293, 294, 307

322 

INDEX

Social movements, 141, 142, 147, 162n12, 163n20, 165n32, 238, 293, 306 Sociology, xi, xvii, xviii, xixn4, 39n13, 45n52, 45n57, 46n58, 55, 91, 95, 124n49, 129n81, 142, 143, 198n10, 198n11, 223n5, 224n10, 252n38, 277, 302 Soft power, 173, 234, 249n16 South Africa, 250n25, 270 Sovereignty, xv, 20, 34–37, 41n28, 41n29, 44n45, 47n69, 68–70, 76, 79, 80–81n5, 94, 138, 175, 177, 214, 224n14, 225n16, 229–247, 266, 271, 274–277, 282, 290, 297, 300–307, 311n28, 311n31 Soviet Union, see Russia Space-time, xviii, 29, 33, 68, 73, 101, 118, 210, 211, 229, 232, 302 Spinoza, Baruch, 18, 301, 308n1 State dual, xvi, 9, 93, 177, 233, 243 of nature, 20, 34, 73, 230 Streek, Wolfgang, 257 Structure, xii, 4, 33, 46n67, 49, 57–59, 65, 79, 93, 115, 116, 118, 135, 202n37, 219, 232, 239, 245, 261, 295, 296, 299, 300, 303, 306, 311n31 Suárez, Francisco, 47n69, 243 Surveillance, 61, 108, 109, 175–177, 179, 184, 185, 188, 195, 200n23, 232, 233, 273 T Tacitus, 82n18 Taiwan, 65 Taxation, 172, 175, 232 Terrorism, 232, 233 Thailand, 245

Thatcher, Margaret, 278, 287n44 Thompson, Edward P., 54, 55 Tilly, Charles, 106 Titmuss, Richard M., 97, 121n21 Totalitarianism, 280, 283n8 Trend-concepts, xiii, xvii, 47n72, 115–120, 128n73, 128n74 Trends, developmental, xi–xiii, xixn2, 37n1, 116, 117, 120, 169–197, 222, 227n29, 283n2, 296 Tronti, Mario, 227n29 Tullock, Gordon, 86n53, 89n73, 190, 191, 202n43 Tunisia, 245 U United Nations (UN), 234, 236 United States, 16, 27, 55, 83n19, 177, 200n23, 233 Unity of contraries, 19 Urbinati, Nadia, 76 Utilitarianism, 21, 22, 35, 211 V Vattel, Emer de, 50, 230, 243 Venezuela, 311n31 Vietnam, 238 Violence, xviii, 57, 59–61, 68, 92, 140, 159, 174, 175, 179, 182, 184, 212, 232, 243, 248n14 Vitoria, Francisco de, 243 W Weber, Max, 42n31, 63–65, 84n28, 85n39, 93, 103, 105, 108, 109, 111, 116, 136, 139, 149, 161n3, 171, 175, 180, 188, 193, 194, 196, 201n28, 207, 226n25, 271–273, 292

 INDEX 

West, Cornel, 10, 30, 56, 65, 93, 105, 118, 151, 157, 158, 170, 180, 189, 196, 203n52, 206, 213, 219, 227n30, 230, 242, 243, 246, 291 Westphalia, 231

323

Will, xvii, 10, 22, 34, 41n28, 42n29, 70, 120, 193, 300–307 Williamson, 85n39 World Bank, 233, 234, 249n17 World Trade Organization (WTO), 234