Public debate becomes impossible in the Twilight of the State. Diverse political and ideological currents – critical of the failings of modern State–, directly demand the erasure of the separation of powers, the political utilization of justice and the privilege of politics over law. The functional separation of economy, religion, law, and politics not only appears foreign to those currents: they seek the *fusion* of all spheres of public and social structure in various forms of atavistic, “popular” rule. Behold: this is nothing less than a peculiar mix of Permanent and Cultural Revolution –today in Spain.
For sure, European structures and states defend “the rule of law” consistently (not recognizing their own actions, their own nature as the cause of the problems we all are facing). There is some merit in acting with pause and caution. The laws are applied almost mechanically, by “reason” and “necessity.” But behind the surface, the general, universal standards of the modern European state appear in danger once you see how European post-national post-cultural politics has created its counterpart post-state political actors: so-called national-populism and their post-socialist allies. It is with these products of globalization and weakening of the nation-states that dialogue has become extremely difficult, because there is no common basis of law and the acceptance of law.
In the words of an important Spanish politician of the last century, Joaquín Costa: “se da por supuesto que las leyes son garantía del derecho y ahí está el error: la garantía del derecho no está en la ley, como la ley no tenga asiento y raíz en la conciencia de los que han de guardarla y cumplirla” ( “…it is usually taken for granted that laws guarantee rights, and this is an error: the guarantee of rights is not in the law if it has no space and no roots in the conscience of those who have to protect and obey it.” (1)
As Francesco Rosell wrote this morning in El Mundo: “Ante la inacción del Estado, el separatismo ha creado una burbuja que envuelve a ciudadanos, municipios e instituciones hasta hacerlos sentir que habitan una ficción secesionista, cuya declaración de independencia es un formalismo.” (2) – meaning that separatist (nationalist) currents live inside of an ideological “bubble” where they already “have” a new republic, and declaring it is a mere formality.
Aside of the political implications of this breakdown –which I cannot judge properly–, what seems important to me is the connection between the apparent albeit partial “success” of the European meta-state, and the consequences of this “success.” If the Nation State was already the climax of the functional differentiation of modern societies, and if the Nation State (with the constitutive rule of law at its center) was already the model of governance; and, if the Modern State already reflected the general forms of production and social interaction, what can be the next step, what can be “progress” in politics and public discourse? What can redress the claims of the nationalist currents and the complaints of the neo-socialist detractors?
The Modern State, with its “separation of powers,” is the given concrete universal form of governance. It is concrete because it is a synthesis of historical factors, and it is universal because it appears as political system over and above a variety of nations and regions. (Perhaps the term “general” would be better here, instead of “universal”, but this also points to the symbolic aspects of any modern state.) Being an accomplished form of modern capitalistic society, but its failure to communicate further, to articulate minds in a credible, legitimate way over diverse populations, tells me that we are seeing not the “failure” of some abstraction or principle, but a specific lack of correspondence between the general forms of governance (which are still valid and rational –in particular the separation of powers) and the particular ground (the individuals, populations, regions, peoples) those general forms represent.
While the “erasure” of the rule of law in favor of some national-populist or post-socialist fusion of government and judiciary would be surely wrong, the mere defense of the autonomy of the courts is insufficient to resolve the crisis. For we are not seeing the crisis of “the State” in general, but the crisis of “these” particular states in their inability to represent and integrate their own peoples. This is not only a Spanish problem.
If we believed the current is only a crisis of the State-form, the conclusion would be wrong, because what we need it is not less separation of the judiciary and government, but more. For the same fundamental reasons, we do not need less separation from government and economics, but more (I obviously refer to the need to eliminate government mediation, interference, corruption and malpractices on the back of business operations and international trade.)
A synthetic formulation of this would be: The problem is not private property and the rule of law “in general” (i.e. the problem is not the concrete universal which is a product of history) but *this property* and *this rule of law* which are too limited to encompass, articulate, represent and govern the peoples they purport to correspond to.
- Oligarquía y caciquismo como la forma actual de gobierno en España. Madrid, 1901
- From http://www.elmundo.es/opinion/2017/11/05/59fe0986468aeb65608b45ce.html