werner bonefeld on neoliberalism

8/12/2019 Werner Bonefeld on neoliberalism

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Democracy and Dictatorship 359

MARXISM 21

Article

Democracy and Dictatorship* 1)

Neoliberalism and the State of Exception

Werner Bonefeld** 2)

This article explores Walter Benjamins insight according to which thetradition of the oppressed teaches us that the State of emergency is not the

exception but the rule. The liberal state tradition, and not just its authoritarian

wing, understands this well and does indeed conceive of the state as the executive

committee of the bourgeoisie. The neo-liberal conception of laissez-faire does not

extend to the state. Laissez-faire is no response to riots. That is to say,

neo-liberalism does not view dictatorship as the opposite to the liberal

democratic state but sees it instead as a means that safeguards the ends of the rule

of law in the face of democratic pressures.

Keywords: Class struggle, Democracy, Dictatorship, Force of law, Rule

of law, Violence.

* This article is revised from a chapter of the book State, Capital and Class: On

Negation and Subversive Reason, forthcoming Galmuri.

** Department of Politics, University of York, [email protected].


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I

The purpose of military government is to protect the welfare of the gov-

erned it is inspired by humanitarian consideration (Friedrich, 1968: 547).

By the end of the 19 Century, Marxs co-author of the Communist

Manifesto, Friedrich Engels, seemed to distance himself from theManifestos

memorable insight that the capitalist state is the executive committee of the

bourgeoisie. In his Preface to the English edition of volume I of Capital,

Engels (1886/1983: 17) observed that in England conditions were such that

social revolution might be effected entirely by

legal means. He thus sug-

gested that given the right conditions, socialism can be achieved by means of

democratic-parliamentary struggle, and that such struggle is able to trans-

form the state into an instrument, as it were, of the executive committee of

the proletariat. This view presupposes that the state is fundamentally im-

partial towards the antagonistic social interests, and that state purpose, in it-self indeterminate, is contingent upon the balance of class forces. The state is

thus presumed to exist for the law, and the law is what parliamentary major-

ities determine it to be. On the basis of these assumptions, socialism would

indeed be possible by legal means. Its realisation would require a socialist

parliamentary majority that in the face of bourgeois dismay decrees social-

ism by an act of law. Can the state however be independent of the society

from which it springs?

Some 13 years after Engels enunciation of the parliamentary road to so-

cialism, Rosa Luxemburg argued with remarkable foresight that democracy

is not a neutral thing but fundamentally a liberal-democracy. In times of cri-

sis, she argued, its liberal character and purpose will be protected at all costs,

including the suspension of democratic government. On the one hand, she


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argued, and in accordance with its form, parliamentarism serves to express,

within the organisation of the state, the interests of the whole of society

(Luxemburg, 1899/1989: 47). The incursion of mass democracy into the lib-

eral parliamentary system of bourgeois representation posits and reproduces

the class antagonism between capital and labour at the heart of the law-mak-

ing institution of the bourgeois state. On the other hand, however, the pres-

ent state is not society representing the rising working class. It is itself

the representative of capitalist society. It is a class state (ibid.: 41). And that

is to say, what parliamentarianism expresses in its form as a representative of

the whole of society is capitalist society, that is to say, a society in which

capitalist interests predominate. In this society, the representative in-

stitutions, democratic in form, are in content the instrument of the interests

of the ruling class. This manifests itself in a tangible fashion in the fact that

as soon as democracy shows the tendency to negate its class character and

become transformed into an instrument of the real interests of the pop-

ulation, the democratic forms are sacrificed by the bourgeoisie and by itsstate representatives (ibid.: 47).

Friedrichs cynical notion that military government protects the welfare of

the governed expresses nonetheless the obvious truth that the bourgeois state

is the political organisation of bourgeois society. It recognizes bourgeois

class interests as universal-human interests. The state is the institution of

what Rousseau called the general will of bourgeois society. It sets the rules

of the game, and thus provides a framework that codifies and regulates the

conduct of the many private interests on the basis of law and order. Thus,

liberals must employ political channels to reconcile differences because the

state is the organisation that provides the means whereby we can modify

the rules (Friedman, 1962: 23, emphasis WB). However, what happens

when they interfere? In conditions of social democratisation, politicising


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social labour relations, the law needs to be broken in order to preserve it

(Rossiter, 1948: 12). That is to say, the much-praised capacity of deliberative

democracy to reconcile differences has to be preserved by the force of law.

Instead of the rule of law, the force of law-making violence is unleashed to

re-impose a social order fit for the rule of law. The neo-liberal conception of

the state provides an insightful account of Marxs denunciation of the state

as the executive committee of the bourgeoisie.

II

No sacrifice is too great for our democracy, least of all the temporary sacri-

fice of democracy itself (Rossiter, 1948: 314).

The late Engels was right to see the emergence of mass democracy as a

challenge to the liberal state. He was however mistaken to believe that theliberal state lacked the capacity to contain democratic aspirations within the

limits of its form (cf. Agnoli, 2000). Every liberal constitution entails the re-

al possibility that the class antagonism between capital and labour is repro-

duced within the state, that is, the very institution charged with codifying

and regulating the bourgeois interests as universal-human interests. The

fundamental contradiction of parliamentary constitutional government

consists in the following: The classes whose social slavery the constitution

is to perpetuate, proletariat, peasantry, petty bourgeoisie, it puts in possession

of the political power through universal suffrage. And from the class whose

old social power it sanctions, the bourgeoisie, it withdraws the political guar-

antees of this power. It forces the political rule of the bourgeoisie into demo-

cratic conditions, which at every moment help the hostile classes to victory

and jeopardise the very foundations of bourgeois society. From the ones it


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demands that they should not go forward from political to social emancipa-

tion; from the others that they should not go back from social to political re-

storation (Marx, 1978b: 79). The strength of the state depends thus on its in-

dependence from society it is its independence from society that allows its

effective operation as a bourgeois state. In the face of mass democratic aspi-

rations, the state thus needs to be powerful

to preserve its own in-

dependence (Rstow, 1942: 276). It is its independence from society that al-

lows the state to be a strong and neutral guardian of the public interest as-

serting its authority vis--vis the interest groups that press upon the govern-

ment and clamor for recognition of their particular needs and wants

(Friedrich, 1955: 512). A state that does not defend its independence from

the democratic aspirations of the dependent masses will lose its authority to

govern and instead, will have become their prey (ibid: 513). Democracy

has thus to be fettered to ensure that the state is not dragged down into soci-

ety, to maintain its independence from society. Failure to fetter democracy to

government by the rule of law challenges the distinction between society andstate, and the failure to maintain this distinction might, as Nicholls (1984:

170) put it aptly, eventually lead to class war. Government by the rule of

law presupposes social order. There then arises then the need to preserve the

rule of law by means of its temporary suspension. As Rossiter (1948: 6,

303) notes, rebellions cannot be suppressed by juridical injunction.

Suppression requires concentrated force that is employed in the name of

freedom (ibid: 7).

Rossiters point is hardly surprising. It expresses a common view.

According to Locke (1946: 82), it is the prerogative of the state to act ac-

cording to discretion for the public good, without the prescription of the law

and sometime even against it. Machiavelli (1970: 196) noted that republics

which, when in imminent danger, have recourse neither to a dictatorship, nor


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to some form of authority analogous to it, will always be ruined when grave

misfortune befalls them. Rousseau (1968: 171) concurred, arguing that the

general will is indubitable

that the state shall not perish. In Carl Schmitts

definition of the political as the relationship between enemy and foe, or in

Marxist language, the class antagonism between capital and labour, the state

is properly a state on the condition that it recognises the (class) enemy, and

organises its policies accordingly. The state is, as it were, the monopolist of

the ultimate decision as to whether the containment of the enemy on the ba-

sis of the rule of law is effective or whether its (temporary) suspension is re-

quired so that order can be restored. As he saw it, there is no legal norm that

can be applied to chaos. Order has to be established for the legal norms to be

effective (Schmitt, 1922: 20). Whether there is order or disorder, whether

the rule of law applies or whether it needs to be re-imposed upon society by

means of force (the force of law without the rule of law) is a question of

judgment not of law but of a sovereign decision. All law, as Schmitt put it,

is situational, and its rule depends on an extra-legal coercive force. Thisforce rules, as it were, through as well as over and above the rule of law.

Sovereign is who decides on the state of emergency (ibid.: 11). Whether

the rule of law applies or whether it needs to be broken in order to preserve

freedom is thus a question, not of law, but sovereign decision and judgement

in the face of the (class) enemy. Necessity knows no law.

Schmitt formulated the dictum that the state shall not perish in conditions

of mass democratic incursion into the homogeneity of the relationship be-

tween the bourgeois state and its bourgeois constituency. The achievement of

political rights by the organised labour movement disrupted the homogeneity

of relations between bourgeois society and its state. Democracy, as Schmitt

saw it, depends on the fundamental homogeneity between rulers and ruled. It

is, as it were, possible only on the condition that it is a democracy of


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friends. The materialisation of the working class as mass democratic sub-

ject disrupted this homogeneity and allowed entrenchment of the (class) ene-

my within the institution that was to codify and regulate its subordination to

capital. Schmitt argued that the (Weimar) state had become the prey of an-

tagonistic social interests, requiring the friends to reassert the in-

dependence of the state from society by means of emergency rule. Schmitts

analysis of the ills of Weimer was widely shared,1) and his demand for the

free economy and the strong state (Schmitt, 1932) was the demand of

1) Schmitts insight into the crisis of the Weimar Republic was shared not only by neo-

liberal authors, such as Bhm, Eucken, Rstow and Rpke, but also Neumann and

Kirchkeimer (cf. Haselbach, 1991, see also Tribe, 1995). Where Neumann and

Schmitt differed was in the prescription of how to resolve the crisis. Like Schmitt, the

German ordo-liberals favoured a dictatorial resolution by means of a commissarial

dictatorship headed by von Papen. The crunch between Schmitt and the ordo-liberals

occurred with the Nazi-dictatorship. Some ordo-liberals rejected it as a sovereign dic-

tatorship, whereas Schmitt lost no time to become Nazisms legal philosopher. Rpke

and Rstow emigrated, Eucken and Bhm stayed choosing, it is said, internal exile.Mller-Armack also stayed. He had argued all along for the strong man and saw in

Italian Fascism a means of overcoming the crisis of Weimar. In the late 1920 and ear-

ly 1930s, Schmitt and the German neo-liberals fed on each others analyses; their vo-

cabulary and concepts were interchangeable. After the second world war, there was

great ambiguity towards Schmitt, and efforts of cutting the connection between

Schmitt and the neo-liberals are legion. Hayek, for example, rejected Schmitt in toto,

denouncing him as the leading Nazi theoretician of totalitarianism (1976: 187) only

to acknowledge, that Schmitt probably understood the character of the developing

form of government better than most people (1979: 194). He accepted Schmitts dis-

tinction between democracy and liberalism and argued that Schmitts analysis was

most learned and perceptive (1960: 485). On the connection between Schmitt and

Hayek, see Cristi (1998) and Scheuerman (1999). On the connection between

Schmitt and the German neo-liberals see, Haselbach (1991). See also Nicholls (2000)

who praises Rstows description of the strong state as a landmark in the prehistory

of the social market economy (p.48) but fails to mention Rstows explicit agree-

ment with Schmitts view on the free economy and the strong state (cf. Schmitt,

1932). Similarly, Friedrich (1955).


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neo-liberalism (cf. Rstow, 1932). The government beyond its proper

sphere ought not to have any power; within its sphere it cannot have enough

of it (Benjamin Constant, cited in Rpke, 1949: 28). Like Schmitt, the

neo-liberals of the late 1920s and early 1930s criticised classical liberalism

for failing in the face of the proletarian threat. Laissez fair is no answer to

riots (Peacock and Willgerodt, 1989: 6).2) Neo-liberalism sees in the idea

that laissez faire applies to the state a demand for the weak state, a state that

has lost its ability to distinguish between the values of the friends and the

values of the enemy. For the strong state, liberal values are not in question.

Only the strong state can tolerate opposition. Only the strong state is able to

renders effective laissez faire as the principle of a socio-economic order in

which private vices are said to transform by means of the invisible hand into

public virtues. The invisible hand requires political guidance. The neoliberal

state is a market enabling state, it imposes laissez faire somewhat analo-

gous to Rousseaus image of people being forced to be free.

The neo-liberal demand for the strong state is a demand for the limited

state. It intervenes into society, not to effect redistribution, but to facilitate

the free price mechanism over and above the power of private individuals.

As Hayek (1976) saw it, the liberal state intervenes in an attempt to facilitate

2) In the face of mass democratic transformation and entrenchment class relations, the

neo-liberals of the early 1930s argued that liberalism has to fight for the strong state.

They criticised classical liberalism for its dependence on the idea of the invisible

hand, and argued that capitalism was not the result of divine reason. Instead of

classical liberalisms deist philosophy, capitalism is a man made order that de-

pends for its operation on the extra-economic framework of moral, political, legal

and institutional conditions, without which the capitalist market system cannot work

(Rpke, 1942: 67, 68; see also Rpke, 1949). Classical liberalisms reliance on the

philosophy of the invisible hand meant that it had no answer to the proletarian

challenge.


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competition, or in the words of Friedman (1962: 27), to determine, arbitrate

and enforce the rules of the game. The neo-liberal state governs by plan-

ning for the free price mechanism, as Balogh (1950) put it in his assess-

ment of neo-liberal reforms in post-war Germany. The free price mechanism

is a sort continuous consumer plebiscite (Rpke, cited in Peacock and

Willgerodt, 1989: 64), whose operation requires a strong state to prevent

coercion and violence (Hayek, 1972: 66) by private power, be it in-

dividuals or organisations such as trade unions. Its prime duty is preventing

private coercion by trade unions (ibid: 87). In sum, liberalism had not de-

manded weakness from the state, but only freedom for economic develop-

ment under state protection. Such protection demands a strong state

(Rstow, 1932: 68). The strong state is a state where it belongs; over and

above the economy, over and above the interested parties [Interessenten]

(Rstow, 1963: 258). The strong state is the market-liberal interventionist

state.

In contrast, the weak state does not stand over and above society. Instead,

it is drawn into society and has become the prey of antagonistic social

interests. The socialisation of the state undermines its independence and

thus imperils is bourgeois character. It is as if the mob has seized the seat of

government (Baruch, commenting on Roosevelts decision to abandon the

Gold Standard, quoted in Schlesinger, 1959: 202). Instead of government

there is what the neo-liberals of the 1970s called ungovernability. The un-

governable state is a state of pure quantity (cf. Schmitt), unable to dis-

tinguish between the bourgeois friend and the working class foe, and there-

fore unable to enforce the rules of private property against entrenched work-

ing class interests. Instead of eliminating private power from the economy

by attacking trade unions and deregulating labour relations, the economic

costs of democracy increase (cf. Brittan, 1977) and the lamentable weak-


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ness of the state (cf. Friedrich, 1955: 512) is such that it becomes regarded

as a sort of unlimited-liability insurance company, in the business of insur-

ing all persons at all time against every conceivable risk (King, 1976: 12).

What to do when government no longer governs over society but is instead

dragged down into society? According to, amongst others, Rossiter,

Friedrich and Hayek, the state has to govern and a dictatorship might be re-

quired that ends the crisis and restores normal times (Rossiter, 1948: 7).

Dictatorship is a temporary form of state organisation to restore legitimate

authority once the emergency for the state is over (Rpke, 1942: 146).

According to Friedrich (1968: 558), when a constitutional government can-

not cope with emergency situations, resolution can only be found by

turn[ing] to dictatorship. As Hayek (citied in Cristi, 1998: 168) notes,

dictatorship may impose limits on itself, and a dictatorship that imposes

such limits may be more liberal in its policies than a democratic assembly

that knows of no such limits. Unsurprisingly, Hayek accepts that Schmitts

conception of sovereignty

sovereign is the one who decides on the ex-ception has some plausibility (Hayek, 1979: 125). A dictatorship that

imposes limits on itself, and that thereby facilitates market freedom by cur-

tailing democratic aspiration on a liberal basis, and that thus deregulates en-

trenched class relations in an attempt to achieve the complete eradication of

all orderlessnes from markets and the elimination of private power from the

economy (Bhm, in Haselbach, 1991: 92), is a dictatorship that should be

no cause for alarm. It should be no cause for alarm because it is

constitutional (Rossiter, 1948: 4). That is to say, a constitutional dictator-

ship is not a contradiction in terms but rather the litmus test of con-

stitutionalism (Friedrich, 1968: 580).3)

3) Friedrichs and Rossiters conception of a constitutional dictatorship derives from

Schmitts commissarial dictatorship. Despite their obvious debt to Schmitt, he is not

acknowledged. Like Hayek, they seek to distance themselves from him (Friedrich,


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Hayeks conception of dictatorship as a means of securing the liberal state

in the face of mass democratic aspirations is apt. Government must govern;

non-compliance has to be turned into compliance, order be restored. There

can be no democracy in abnormal times (Rossiter, 1948: 8). Law cannot be

applied to chaos law requires order; rebellions are not resolved by parlia-

mentary debate the imposition of order requires executive action. Order

needs to be imposed so that the law can rule. The imposition of order makes

possible the codification of social relations and their regulation on the basis

of the rule of law. Imposition of order has the force of law. The rule of law

presupposes the force of law, that is, violence is a law-making power and a

law-preserving power (cf. Benjamin, 1965).

III

The inner dialectic of civil society

drives it

to push beyond its ownlimits (Hegel, 1967: 151).

The understanding of bourgeois society as an antagonistic society was al-

ready accepted by Immanuel Kant. It was because of its antagonism that its

reproduction required a specific political form that codifies and regulates the

conduct of exchange relations. The purpose of the state was to secure the

common interest of bourgeois society, allowing the many competing private

interests to develop on the basis of law. For Kant, thus, the antagonism was

not one of class. His conception of antagonism was pre-modern. For him the

social antagonism comprised the competitive relations between distinct

branches of production and especially the competition between petit com-

1968: 664; Rossiter, 1948: 14) but appear not to be able to do without him.


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modity producers. As he saw it, antagonism was entailed in the unsocial so-

ciability of men to come together in society coupled with continual resist-

ance which constantly threatens to break this society up (Kant, 1971: 44).

The state appears here as a force that regulates the unsocial character of soci-

ety to secure its fundamental sociability. The state institutionalises, as it

were, the mutual dependency of each individual on all other individuals. Its

independence allows it to codify and regulate the competing private interests

within a social framework. The working class, or the forth estate, did not in-

form his conception of the antagonistic society.

Kants conception of the state rests on the positing of social antagonism

not in the form of irreconcilable class interests but rather in the form of rec-

oncilable bourgeois interests. The private interests are unsocial and there-

fore demand cohesion on the basis of law. As he put it, the great problem

for the human species, the solution of which nature compels him to seek, is

that of attaining a civil society which can administer justice universally. Atissue was the establishment of a perfectivelyjust civil constitution (ibid:

45). Thus, the universal interests of competitive society required the estab-

lishment of a perfect civil constitution (ibid: 47) so that the innate capaci-

ties

of antagonism within society could be resolved on the basis of a

law-governed social order (ibid: 44). In todays parlance, the necessity of

the state arose for Kant out of the conflict between pluralist interests and he

argued that the state has to retain its independence from these interests so as

to secure their civil conduct. The state is thus conceived as a necessary form

of conflict resolution it codifies property rights and regulates the use of

force.

Kants conception of the necessity of the state echoes insights of Smith

and Rousseau. Kants argument that justice needs to be administered univer-


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sally echoes Smiths notion of the state as the institution responsible for the

impartial adjudication of justice in case of clashes of interests. And the uni-

versal character of such administration is akin to Rousseaus general will that

expresses the fundamental sociability of the divided and competing private

interests. According to Kant, the state is necessary to represent the general

interest over and against the conflicting claims and relations of the private

interests a society based solely on egoism is impossible. Its unsocial char-

acter will destroy what it presupposes: societys fundamental sociable

character.

Hegel was the first major thinker who understood the antagonistic nature

of bourgeois society. For him the social antagonism is one of class. For

Hegel, the fundamental condition of bourgoies society is no longer the com-

petitive relationship between petit commodity producers. Bourgeois society

is conceived as a class society.4) His theory of the state thus differs from

Kants inasmuch as the recognition of labours antagonistic presence in andagainst bourgeoisie society renders impossible reconciliation on the basis of

a common interest. Class society is a society divided by irreconcilable

interests. The state is by necessity a class state. The state is thus no longer

seen to be necessary as an institution of the general interests over and against

the competing private interests. Instead, it is necessary in order to sanction

the rule of private property against the poor. Its purpose is the containment

of labour within the limits of bourgeois society

a containment based on

4) Some might object to the use of bourgeois society in this context and insist on the use

of civil society. But recall Hegels dictum: In this society, the individuals are not cit-

oyens, they are bourgeois (cf. Art. 89 of the Philosophy of Law of Heidelberg,

1817/18, first published in 1983, Suhrkamp, Frankfurt). The German for civil soci-

ety is Zivilgesellschaft or zivile Gesellschaft, not buergerliche Gesellschaft, which

translates as bourgeois society.


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law and coercive force: the force of law.

Hegel develops the necessity of the state from the internal dynamics of

bourgeois society. In hisPhilosophy of Law, he first introduces the notion of

general dependency: the particular person is essentially related to other par-

ticular persons, each finds satisfaction by means of the others, and their re-

ciprocal relationship means that the satisfaction of needs comprises a univer-

sal system of mutual dependency (pp. 122-29). There is thus a division of la-

bour and satisfaction of needs by means of exchange. Concerning the state,

his purpose here is the protection of property through theadministrationof

justice (p. 126). However, and importantly, the infinitely complex, criss-

cross, movement of reciprocal production and exchange, and the equally in-

finite multiplicity of means therein employed goes beyond the division of

society into individualised individuals, or in todays language, the so-called

market individual. That is, the division of labour crystallises into a systems,

to one or another of which individuals are assigned

in other words, intoclass divisions (ibid: 130-31). These divisions are of an antagonistic kind

and the development of bourgeois society leads to its polarisation into antag-

onistic classes (p. 150). According to Hegel, the polarisation of society into

two opposing classes is an innate necessity of bourgeois society. It belongs

to its constituted dynamic. As he sees it, the market economy results in the

dependence and distress of the class tied to [work]. Dependence and distress

are also entailed in the inability to feel and enjoy the broader freedoms and

especially the intellectual benefits of civil society (ibid.: 149-50).

It seems that civil society is civil only on the condition that the labouring

class is excluded form it. However, exclusion is not possible for the simple

fact that the expanded reproduction of bourgeois society results in the crea-

tion of a rabble of paupers and the concentration of disproportionate wealth


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in a few hands (ibid.: 150). What to do when the masses begin to decline

into poverty and start to rebel (ibid.: 150)? He rejects redistribution of

wealth as this would violate the principle of civil society (ibid.). He also ar-

gues that what today is called a policy of full-employment is contrary to the

logic of civil society. Rather than solving the problem, it would intensify it

(cf. ibid.). Thus, despite an excess in wealth, civil society is not rich

enough, i.e. its own resources are insufficient to check excessive poverty and

the creation of a penurious rabble (ibid.). There is no economic answer to

the polarisation of society. In fact, the inner dialectic of civil society

drives it

to push beyond its own limits (ibid.: 151). How to keep the poor

at bay and thus contain the class antagonism within the limits of its bour-

geois form? For Hegel, there is only a political answer. He charged the state

with the task of containing the class antagonism.

To recap, the dynamic of bourgeois society creates the polarisation of so-

ciety according to antagonistic class interests. The defence of the richagainst the poor is a political task. Its resolution conforms to bourgeois so-

ciety: interventionism in terms of the provisions of welfare and employ-

ment are contrary to its logic and interests, and will only serve to make

things worse. Interventionism has to be in conformity with the logic of civil

society, or as Rpke (1934: 50) would put it, interventionism has to be in

harmony with the natural tendency of the market. Only such intervention

secures the best of all worlds, allowing regulation of the class antagonism on

the basis of free and equal exchange relations between capital and labour, re-

inforcing competition between workers for employment and conditions, and

thus reinforcing the individualisation that is so typical of class society. The

containment of the class antagonism can go forward by ethical means, which

purport that regardless of conditions, we are all members of the one national

boat specific class interest appear as universal or national interests. And


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the interest of the working class? The ethical appeal to the one-society must

lead, as Mller-Armack (cited in Haselbach, 1991: 155) put it, to the in-

corporation of the market-mechanism into a total life style. Containment

can also go forward by coercive means that replace the carrot by the stick. In

either case the stick is either directly applied or hidden in the carrot. As

Walter Benjamin (1965: 84) put it: the tradition of the oppressed teaches us

that the state of emergency in which we live, is not the exception but the

rule. We must attain to a conception of history that is in keeping with this in-

sight.

Hegels conception of civil society confirms Benjamins critique of its op-

pressive character. According to Hegel, civil society is a selfish, competitive,

and antagonistic society, where great wealth is accumulated by the few at the

expense of the many, and that thus condemns the masses to poverty. Civil so-

ciety required the authority of the state to keep it from imploding under the

weight of its own contradictions. Hegel painted civil society in the followingterm: [the individual] is subject to the complete confusion and hazard of the

whole. A mass of the population is condemned to the stupefying, unhealthy,

and insecure labour of factories, manufactures, mines, and so on. Whole

branches of industry, which support a large bulk of the population, suddenly

fold up because the mode changes or because the values of their products

fall on account of new inventions in other countries, or for other reasons.

Whole masses are thus abandoned to helpless poverty. The conflict between

vast wealth and vast poverty steps forth, a poverty unable to improve its

conditions. Wealth

becomes a predominant power (Hegel, 1932: 232),

fostering resentment and hatred. The integration of civil society was seen to

establish a moving life of the dead. This system moves hither and yon in a

blind and elementary way, and like a wild animal calls for strong permanent

control and curbing (ibid.: 240). It requires, in short, the strong and capable


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state to render its conduct civil by containing the poor within the bounda-

ries of bourgeois society. Indeed, the political cohesion of civil society might

be advanced by successful wars that have checked domestic unrest and

consolidated the power of the state at home (Hegel, 1967, p. 210). Marxs

substitution of civil society for bourgeois society is therefore apt: as buyers

and sellers of labour power, individuals assert themselves as subjects of hu-

man rights, regardless of the inequality in property. The free worker is as

much an abstract subject of human rights as the owner of the means of

production. Once, however, the labour contract is signed, the factory floor

beckons, and the sphere of human rights is replaced by hidden abode of pro-

duction, in which the buyer of labour power consumes his acquired property

in the production process to extract surplus value, that is, the labour power

of the worker is transformed into productive activity under the command of

capital.

IV

There is no legal norm that can be applied to chaos. Order has to be estab-

lished for the legal norms to be effective (Carl Schmitt, 1922: 20).

From the above it appears that the state is a specific form of conflict

resolution. In Kant, it codifies the rules of the game and regulates the rela-

tionship of ownership between the subjects of exchange, rendering their con-

duct civil on the basis of law and order. The state appears here as an

extra-economic coercive force that safeguards the fundamental

sociability of unsocial exchange relations. The reconciliation of in-

dividual owners of commodities on the basis of law and order is not prob-

lematic since their relationship is premised on the recognition of property


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376 2010 7 3

rights. Once, however, the conflict over property rights assumes an antago-

nistic form, the conflict-resolution by means of law and order changes in

character. Instead of liberal deliberation on the forms of legal regulation (cf.

Friedman, 1962: 23), the emphasis falls now on the imposition of order as

the condition of law. The working class, as Clarke has rightly argued, is

always the object of state power. The judicial power of the state stands be-

hind the appropriation of labour without equivalent by the capitalist class,

while preventing the working class from using its collective power to assert

the right to the product of its labour (Clarke, 1991b: 198). That is to say,

following Clarke, the codification of the relationship between capitalist and

labourer as equal and free citizens who contract in liberty on the labour mar-

ket is contradicted by the content of the exchange. Once the wage contract is

signed, the factory floor beckons. The recognition of the labourer as an equal

citizen not only confines the terms of exchange within the limits of the rights

of property. It also subordinates the working class to capital: the recognition

of capital and labour as equal and free partners in exchange entails the sub-stantive guarantee of exploitation.

Engelss hope that the democratic power of the working class might lead

to the peaceful transition to socialism by means of parliamentary decree,

seeks to exploit an opportunity structure that really is not there. As Clarke

(1991b: 187) notes, capitalist property is founded not on the rule of law or

on the supposed state monopoly of the means of violence, but on capitalist

social relations of production. That is to say, and as I argued in the previous

chapter, parliamentary representation tends to translate the demand for em-

ployment, conditions, and social security into a politics of economic growth,

and that is, into pressure on the state to facilitate the increase in the rate of

capital accumulation. In actual fact, then, the state became responsible for

the liberal trickle down effect, to the dismay of the liberals who rejected


19/28


such political responsibility to be akin to planned chaos (von Mises, 1942).

For Keynes, on the other hand, it amounted to a rescue of liberal principles

in the face of the emergence of proletarian mass society (Keynes, 1972).

During the last Century, the mass democratic transformation of the liberal

state did not imperil its bourgeois purpose. Instead of democratising the

bourgeois state according to the collective interests of the dependent masses,

the idea democracy as the sovereignty of the demos transformed into a le-

gitimising means of the bourgeois state. This incorporation transformed the

liberal state into an economic state that takes governmental responsibility for

economic development, facilitating the free price mechanism (see Eucken,

1940). Others speak of the Keynesian rescue of the liberal state (Holloway,

1996) that transformed economic crises into crises of political legitimacy

(Habermas, 1975) or of ungovernability (King, 1976). In either case, the in-

corporation of the demos into the bourgeois state institutionalised the demos

which in its effect transformed the rebellious demos into a governmental re-

source (Foucault, 2008). This then is the transformation of the democraticidea of the sovereignty of the demos into the reality of the political mar-

ket-place where the sovereign people maintain an existence as election fod-

der, providing legitimacy to a process that ultimately amounts to little more

than a mechanism of selecting and deselecting governing elite. Or as

Schumpeter (1992) noted, liberal-democracy is the best mechanism yet in-

vented to secure the circulation of elites by peaceful means, that is, by means

of competitive elections.

The great danger for capital and its state is not the incorporation of the

working class into the system of liberal-democracy. The great danger is the

assertion of the demos, that is, the dependent masses, as the social and politi-

cal sovereign. Such assertion politicises social labour relations and thus

questions the concentration of the political in the form of the stare. It thereby


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378 2010 7 3

threatens the bourgeois separation between the economy and the state.

Working class struggles for democratic control over the means of production

and the perpetuation of resistance by means of mass demonstrations ques-

tions the boundaries of the economic and political, and it does so by rec-

ognising and organising its forces propres as social forces (Marx, 1964:

370). In times of such a crisis of a [liberal-] democracy, constitutional gov-

ernment must be temporarily altered to whatever degree is necessary to over-

come the peril and restore normal conditions (Rossiter, 1948: 5). The

neo-liberal demand for the free economy and strong state moves, as it were,

from the lectern to the barracks, demanding police action. For capitalist so-

cial relations to be again protectedby an enlightenedstate (Nicholls, 2000:

169), a more or less authoritarian direction of the state becomes un-

avoidable (Rpke, 1942: 246). The state is called upon to reclaim the politi-

cal as the distinctive character of the state for itself, and that is, social labour

relations have to be depoliticised, and order be restored. Law does not create

order. Order is the precondition of law. In short, social disorder, as Friedrich(1968: 580) put it, create the states of emergency which call for the estab-

lishment of constitutional dictatorship. Necessity knows no limits. It knows

no law. The times of necessity demand the use of force.

The law of necessity is the law of violence it imposes order with the

force of law, so that the rule of law can be applied again, once the emergency

is over. As Rossiter (1948: 11) puts it, law is made for the state, not the state

for the law. In case circumstances are such that a choice must be made be-

tween the two, it is the law which needs be sacrificed to the state (ibid., cit-

ing Barthlemy). Thus, in order to preserve the law of private property, the

rule of law has to be suspended so that it might not be permanently de-

stroyed (ibid: 8, 12). The use, then, of honest and organised force (cf.

Wolf, 2001) entails not only more government and less liberty (Rossiter,


21/28


1949: 6). It also entails concentration of power in the hands of the executive.

In the face of the democratisation of society, executive action (Friedrich,

1968: 563) has to be released from the paralysis of constitutional restraints

(Rossiter, 1948: 290). In times of need, the inefficiencies inherent in the

doctrine of the subdivision of power have to be overcome and power has to

be concentrated in the hands of one man (Rossiter, 1948: 288, 289) who

governs in freedom from the normal system of constitutional and legal limi-

tations (ibid.: 290). The extraordinary means for maintaining the state

(Friedrich, 1968: 560) from martial law to a state of emergency, from re-

straint of civil liberties to a full-blown constitutional or commissarial dicta-

torship entail however not just a temporary strengthening of the state

where government will have more power, the people fewer rights (Rossiter,

1949: 5). It also entails the law of necessity and that is, the imposition of or-

der as the precondition for the resumption of rule on the basis of law. The

suspension of the rule of law means that the much-coveted statue of liberty

is blindfolded so that its innocence is not compromised by the police-actionundertaken to preserve the rule of law.

The aim of dictatorship is the complete restoration of the status quo ante

bellum (Rossiter, 1948: 7). Yet, as Friedrich (1948: 570) acknowledges,

there are no institutional safeguards available for insuring that emergency

powers be used for the purpose of persevering the institution. The danger is

that dictatorship becomes totalitarian, or in the words of Schmitt, instead of

the desired commissarial dictatorship, it assumes the character of a sovereign

dictatorship. What to do? How to keep the Hitlers out? How to make sure

that dictatorship is in the name of freedom like Pinoches in Chile that

Hayek found so praiseworthy (see Cristi, 1998: 168). According to Friedrich

(1968: 580) a benevolent dictator is required: dictatorship needs to be in the

hand of persons who would understand the nature of the world-revolutionary


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380 2010 7 3

situation and would appreciate the limits of force in dealing with the conflict

of this type. Powper as Rossiter puts it (1948: 314) is not necessarily bad. It

can be responsible, strong government can be democratic, dictatorship can

be constitutional. Yet, no democarcy emerges from dictatorship unaltered

and some dictatorships turned against what it is meant to defend (ibid.: 13).

There is thus no certainty. As Friedrich put it, how are we to get effective,

vigorous governmental action and yet limit the power of governmental bod-

ies so as to forestall the rise of a despotic concentration of power? (1968:

581). For Friedrich this is a logical paradox that can only be resolved in

practice. In the face of insurrection and insubordination, there is no alter-

native to a dictatorial defence ofbourgeois freedom. As Rossiter puts

it, into whatever forbidden fields of freedom the necessities of crisis may

force the leaders of a constitutional government to go, go they must or per-

mit the destruction of the state and its freedoms (ibid: 290). The prize is

freedom (Friedrich, 1968: 581).

Conclusion

The world has become a dangerous place. There is not a single news bul-

letin without a report on the war on terror, accounts of yet more casualties,

attacks on populations, security alerts, and further restrictions of civil

liberties. Critical judgement appears abandoned in a thoughtless world. War

is defined as peace-making; liberty and freedom are restricted ostensibly in

order to protect liberty and freedom; deception and propaganda have entered

the stage of a theatrical politics that, under the guise of choice and demo-

cratic values, pronounces the age old wisdom of tyranny those who are

not with us, are against us as a means of defending choice and democracy.

The events of September 11 demonstrated with brutal force the impotence of


23/28


sense, significance, and thus reason and truth. The denial of human quality

and difference was absolute not even their corpses survived. And the re-

sponse? It confirmed that state terrorism and terrorism are two sides of the

same coin. They feed on each other, depend on each other, encourage each

other, and recognize each other in their totalitarian world views: them and

us. Between them, nothing is allowed to survive. Doubt in the veracity of the

action is eliminated by the authoritarian decision to bomb and maim, to

search and destroy.

Against the background of the deep and prolonged crisis of capitalist ac-

cumulation that manifested itself in 2008, Soros (2003) argued with remark-

able foresight that terrorism provided not only the ideal legitimation but also

the ideal enemy for the unfettered coercive protection of debt-ridden world

market relations because it is invisible and never disappears. With the

tightening of anti-terror legislation across the world, the demand now is not

only that people comply with the constitutional order. Obedience to law, or-der and constitution is not sufficient one is now also required to love

them. The US Patriot Act (2001) confirms that liberty is a consequence of

security (cf. Neocleous, 2007), and analogous to the military doctrine of so-

cial order, it seeks to achieve security by conquering the hearts and minds

of a people. The liberal idea that the demos expresses its sovereignty through

the rule of law depends on a well-ordered people. It is for this simple reason,

as Agnoli (1992) has argued in a different context, that all those who are lov-

ingly tolerated as citizens are also systematically kept under surveillance as

potential security risks. In conclusion, neo-liberal thought is clear and un-

ambiguous in its treatment of the state as a class state. The purpose of the

state is to facilitate and police the free market, including containment of

sociological consequences of free markets: proletarianisation. The state is

to render laissez faire effective; it forces people to be free as subjects of ex-


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382 2010 7 3

change under the rule of law, whatever the content of the exchange, be it cars

or labour power. Force is the precondition of freedom under the rule of law.

That is, the rules of commodity exchange relations recognise inequality in

the form of equivalence. Inequality in equivalence presupposes violence as

the means of cohesion. The existence of social inequality as legal equality

presupposes therefore the force of law-making violence as the condition of

the rule of law.

(Received 26 MAY 2010, Revised 24 June 2010, Accepted 15 July 2010)


25/28


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