While I strive to write about my research here, I am still an antifascist and observe world events with growing concern. I cannot but comment on the storming of the U.S. capitol.
There is a figure of speech: “There are decades where nothing happens; and there are weeks where decades happen.” It is falsely attributed to Lenin, but it still fits this week. It almost seems as if every year in the 21st century has to begin with a catastrophe. A new heat record, a new virus, almost a new world war – you name it. 2021 now has its own: Trump supporters stormed the U.S. capitol in Washington D.C.
It serves as a symbol for multiple threads one can observe in the global political discourse of the past years. One, it is a symbol for the decay of 20st-century democracy. Two, it is a symbol of the fragility of positive law. And three, as a symbol, it is a tool to re-install fascist politics. In this post I will put these three threads in perspective, because it is of utmost importance to reiterate certain aspects of the past decades of antifascist politics once again, because there are stubborn liberals out there who still think that censoring right-wing opinions on social media would be a stronger attack on democracy than what we have witnessed this week.
The End of the Nation State
The first observation we can make with regard to the storming is that it is just one example of a whole series of events that point to one conclusion: the way of politics we have learned in school is no longer working. I am not reinventing the wheel here. Rather, this insight has been repeatedly uttered by various voices from Mark Fisher (2013) over Evgeny Morozov (2008) to the classic Colin Crouch (2008).
In fact, instead of looking surprised in the face of such atrocities, we should be surprised by the fact that the current configuration of the nation state has been able to survive for almost 400 years. To reiterate, today’s nation states were conceptually born with the Westphalian peace of 1648, and many, many juridical, legal, and executive notions and concepts rest solely on the shoulders of national sovereignty. From questions of the state of exception (Carl Schmitt 1932; Giorgio Agamben 2002) over international law (Hans Kelsen 1960) to even modern concepts such as the “Responsibility to Protect,” (Pingeot and Obenland 2014) born during the Yugoslavian civil war in the 1990s, all our terms and ideas about politics stem from this event.
So we shouldn’t be surprised that the tide is changing. The form of the nation state is not the only possible way to construct political communities. I don’t have the space or time to elaborate on such potential concepts (but see for instance Hardt Negri (2000), or almost any socialist or Marxist book of the past decades that did not attempt to purport weird fringe opinions of some alleged conspiracies). But I do want to stress the point that we should finally start to think beyond the nation state. If it only takes a crowd of unarmed people to fundamentally shake democratic institutions, this is a symbol of a weakening institution that has reached its end of support.
Positive Law is not a Perpetuum Mobile
A second observation that can be made is that positive law is deeply unstable. Positive law, other than social norms or institutions, is not stable in a way that, e.g., Berger and Luckmann have purported it in their “Social Construction of Reality” (1968) or that some (e.g. van de Rijt 2019) have noted with regard to the persistence of choices in groups.
In general, there are two types of law, if we follow Walter Benjamin for a second (1999): Natural law and positive law. Natural law is always there; it is what thinkers such as Hobbes have described as a form of “survival of the fittest.” Positive law has always been thought of as to break the cycle of violence within natural law: By consciously enacting law, so the argument goes, we can prepare the floor for living together in civility, without violence. However, because it has to be enacted, it also needs to be enforced – that’s the executive’s job. And, because the executive makes mistakes and law can be interpreted, the judicial system provides checks.
It follows that, if nobody arrests you while breaking a law, there is no judge to convict you for that crime. There’s a figure of speech in Germany: “Wo kein Kläger, da kein Richter” (“In absence of an accuser, there is no judge”). Looking at the footage of the capitol storming, you can clearly see rioters walking carelessly around the building, undisturbed by the security forces.
While this is certainly a symbol of white privilege, it is also a symbol of the fragility of law. There are a lot of laws regulating who is allowed to and who is prohibited from entering the capitol building, but none of these were observed on Wednesday. And there won’t be a trial for every person who sat in Nancy Pelosi’s chair. What we saw here was the re-occurrence of natural law on the theatre of politics: any crowd large enough is the stronger actor in a standoff, even with armed guards. The only way to prevent that would have been to simply shoot the intruders, but what that will lead to is visible in the debates over the death of a women, shot by guards within the capitol.
All in all, the storming of the capitol was a perfect example of why positive law becomes null and void if there is no one to enforce it, and we momentarily return back to a state of nature, to a localised state of exception where natural law breaks surface again. And that is ugly.
Symbolic Victories for Fascism
This leads me to the third observation we could make today. What happens if the current positive law becomes void? Within any power vacuum, the first actor to strike has the ability to mould a constitution in their image. Constitutions, just as positive law, are created ex nihilo. As Hannah Arendt (2006) has vividly described, anyone can become the pouvoir constituant (“constituting power”) and enact a constitution upon which to base positive law, thereby becoming the pouvoir constitué (“constituted power”).
One way to enact a constitution is to destroy the old one. And how do you destroy the old one? By rendering it meaningless (in the words of Giorgio Agamben – for the sake of linguistic accuracy and lacking an English translation, I’m using the German one here – “Geltung ohne Bedeutung,” roughly “being in force without meaning”), the force of law can be decreased to an extent where even executive powers are unable – or, worse, unwilling – to protect the now meaningless constitution.
And it is in such a state where something can happen which we have come to know as “Machtergreifung.” This was clear on Wednesday, and it is something which many people who cannot think beyond the traditional forms of democratic politics refuse to acknowledge: Fascism does not suddenly come around the corner with an army and force you to join in founding the fourth Reich. No: Fascism in the 21st century will piece by piece undermine democratic rituals, render laws meaningless and then, in the end, look like the saviour who hath cometh to save our souls from the gruesome reality of natural law and chaos.
Storming representative buildings of traditional politics is the symbolic way to power for modern fascism. It was attempted at the German Reichstag in mid 2020, it succeeded in the U.S. capitol this week, and there will be more of those symbolic victories in the future. Trust in democracy will be eroded piece by piece, almost unnoticed. Finally, society will crave for someone who “brings back order,” for real this time – and this will be the fascists.
In the end, a rather bad movie might’ve just coined the demise of democracy with utmost precision: “This is how liberty dies: with thunderous applause.”1
- Agamben, Giorgio. 2002. Homo Sacer. Die Souveräne Macht Und Das Nackte Leben. Translated by Hubert Thüring. Frankfurt am Main: Suhrkamp.
- Arendt, Hannah. 2006. On Revolution. New York: Penguin Books.
- Benjamin, Walter. 1999. “Critique of Violence.” In Selected Writings, edited by Belknap and Harward, 1:277–300.
- Crouch, Colin. 2008. Postdemokratie. Translated by Nikolaus Gramm. Bonn: bpb.
- Fisher, Mark. 2013. Kapitalistischer Realismus ohne Alternative? Translated by Christian Werthschulte, Peter Scheiffele, and Johannes Springer. Hamburg: VSA.
- Hardt, Michael, and Antonio Negri. 2000. Empire. Cambridge, Mass: Harvard University Press.
- Kelsen, Hans. 1960. Reine Rechtslehre. 2nd ed. Wien: Franz Deuticke.
- Pingeot, Lou, and Wolfgang Obenland. 2014. In Whose Name? A Critical View on the Responsibility to Protect ; R2P. Report / Global Policy Forum Europe 2014, May. Bonn: Global Policy Forum.
- van de Rijt, Arnout. 2019. “Self-Correcting Dynamics in Social Influence Processes.” _American Journal of Sociology_124 (5): 1468–95.https://doi.org/10.1086/702899.
- Schmitt, Carl. 1932. Der Begriff Des Politischen. 1st ed. Vol. X. Wissenschaftliche Abhandlungen Und Reden Zur Philosophie, Politik Und Geistesgeschichte. München: Duncker & Humblot.
Senator Padmé Amidala in Star Wars Episode III: Return of the Sith. ↩