Law and Justice
Agamben is best known for his critique of sovereign emergency powers and their tendency to reduce all legal subjects to a homo sacer-like state of absolute exposure to violence. But in more recent years, he has written more often about a seemingly opposite, but actually deeply correlative problem: the attempt to legislate every area of life. On the political level, this means collapsing legitimacy (our sense of what the law should be and do) into legality. Whatever the law is, must be legitimate, simply because it is the law — meaning that the idea of legitimacy as a critical standpoint over against the law is lost. One can see this on the level of constitutional law in the United States, where establishing the Founder’s intent, or simply repeating the way the existing institutions function, often suffices to establish the legitimacy of a particular outcome, at least in the minds of many liberals.
The same dynamic holds at an interpersonal level. On the one hand, we have increasingly lost any sense of the distinction between the legal and the ethical. I think here of the frequently given advice that after a car accident, one should not apologize, because it would mean admitting fault and could put you at a legal disadvantage. In a sane society, though, a person who believes themselves to have caused serious harm to another should apologize — and the person receiving the apology should not seize on that natural human reaction to maximize their legal advantage. On the other hand, people increasingly seem to believe that their interpersonal relationships can and indeed must be structured according to strict contractual terms. This comes up especially in sexual contexts, where one might expect legal niceties to be out of place. I look at the vogue for polyamory, for instance, and wonder at people’s apparent belief that anyone can “promise” that their feelings won’t be hurt. We could say something similar for people’s love of inscribing themselves into ever more precise identity categories that come complete with their own list of demands — or for other’s apparent belief that merely being asked to acknowledge the existence of unfamiliar gender or sexual identities is an unjust imposition to which they did not consent.
For me, the distinction between legality and legitimacy — or, more vividly, between law and justice — is pretty foundational. This is, blessedly, not because of Schmitt’s book by that title, but because it was foundational for Ted Jennings’ teaching when I was in grad school. This was when he was working on his two career-capping works on Paul, Reading Derrida / Thinking Paul and Outlaw Justice. As is well known, Paul’s mission in life was to vindicate the full inclusion of non-Jewish or Gentile believers in the Jesus movement — without requiring them to fulfill the Jewish law. And he argues for this position theologically by taking a fairly extreme position: “works of the law” cannot be necessary to save the Gentiles, because they have never actually saved anyone. What is salvific is actually faith or trust in God, apart from any external work. Although he would probably resist this description, in both books Jennings “secularizes” Paul’s argument by claiming that he is pointing to a universal dynamic in the relationship between law and justice. Law always points beyond itself, toward the principle of justice, and that principle means that law can always be called into question. When law claims to be fully self-sufficient, it betrays itself and becomes a tool of injustice.
In those days, there were many clear examples of what happens when law is separated from justice. George W. Bush was president, having taken office with a minority vote after a deeply questionable Supreme Court decision. No one had won the Electoral College without winning the popular vote in over a century, and the Supreme Court had never intervened in an election case in such an overtly partisan way. But the Electoral College was technically the law, and the Supreme Court is the last court of appeal, so he took office. After 9/11 — somewhat contrary to Agamben’s analysis — Bush did not claim sweeping emergency powers so much as fashion himself “legal tools” to wage his War on Terror. New legal categories were invented (“enemy combatant”), loopholes relating to territoriality were exploited (Guantanamo and CIA black sites), and the use of military force was authoritized even if war was not declared (in either Afghanistan or Iraq). Most chillingly, the White House set teams of lawyers to work elaborating a legal basis for the use of torture.
Basically all of this is still on the books. The Authorization to Use Military Force against al Qaeda and its allies is still the law of the land. Obama took advantage of Bush-era laws and norms to run a drone strike program that even claimed the right to execute American citizens without due process. Bush’s torture memos, even if never used by later administrations, were never tested in court, and certainly none of the architects of the torture regime were ever prosecuted. And the normalization of the Electoral College technicality gave us Trump in 2016 — and almost provided him with a perfectly legal means to seize a second term against the popular will in 2020.
Meanwhile, Republicans have been weaponizing laws and rules in many other ways. The anti-abortion movement has routinely passed state laws that were known to be unconstitutional, for the express purpose of giving them a route to the Supreme Court in the hopes of chipping away at and eventually overturning Roe v. Wade. In Congress, they have exploited every rule and loophole — from the abuse of the fillibuster to McConnell’s refusal to even consider Obama’s last Supreme Court nominee. Less discussed have been their efforts to ratchet the balance of power in the House permanently to the right. By means of the Hastert Rule (named after a convicted child molestor, by the way), which mandates that no legislation can come to the floor unless it has a support of the majority of Republicans, laws that would have enjoyed majority support have been obstructed even more efficiently than with the Senate fillibuster.
Meanwhile, professing the sanctity of laws and norms, Democrats refuse to change the rules to take away Republicans’ illegitimate advantage — because they have no conceptual basis for calling it illegitimate. The rules are the rules, and changing them would be cheating. That goes even for a stolen Supreme Court, whose Democratic members insist must be respected even as it undoes all their priorities with a gleeful disdain for precedent or even normal legal procedure — many of the biggest recent decisions should have been dismissed because the plaintiff lacked standing. But again, the rules are the rules, and all Democrats can do is grin and bear it.
We may be seeming to enter a new phase with the total brazen lawlessness of Trump 2.0. But I think it is, instead, the natural next step in the dialectic. Law shorn of legitimacy is already a kind of force, an inert brute fact — and so it should not surprise us that it eventually gives way to overt force. When law that has become nothing but a tissue of arbitrary technicalities, is it surprising that someone would eventually treat the concept of law itself as one huge annoying technicality? Meanwhile it is hard to imagine popular passions being inflamed by the call to vindicate the claims of Congress, which has systematically rendered itself incapable of passing routine legislation with majority support, or of the Courts, which have increasingly revealed themselves to be the servants of presidential power in any case. Nor is it any wonder that low-information normies approve of Trump’s actions, because the dysfunction of the system has created pent-up demand for someone to finally do something — without all the infighting and excuses.
The fact that what is being done is purely destructive, that we are losing things we may never get back, has not yet become clear. And when it does, we will need leaders who can speak to the level of justice and legitimacy rather than law and norm and procedure — leaders who can say, straightforwardly, that Trump shouldn’t do what he’s doing because it’s pointlessly cruel and that Trump doesn’t have a mandate to do what he’s doing because he’s a liar. When that moment comes, though, I fear that we will instead get the same mealy-mouthed losers who could do nothing but mumble about a “democracy” that means you can only vote for one party for the rest of your life and you should never actually expect to get anything out of it. We should want a return to law, a return to procedures and norms recognized by all political actors — but only on just and legitimate terms. Perhaps that can occur within the boundaries of the existing constitution, but a return to the status quo ante of 2024 is not and cannot be the answer. Until people of good will come to understand this, there will never be hope.