Mihai Eminescu

Mihai Eminescu
A 19th Century Romanian poet, essayist, and editorialist, Mihai Eminescu was a strong critic of bourgeois capitalism from the right.

Sunday, September 27, 2015

The Earth and the Sea: Chapter 1 of Carl Schmitt's NOMOS OF THE EARTH

In mythical language , the earth became known as the mother of law.  This signifies a threefold root of law and justice.
First, the fertile earth contains within herself, within the womb of her fecundity, an inner measure, because human toil and trouble, human planting and cultivation of the fruitful earth is rewarded justly by her with growth and harvest.  Every farmer knows the inner measure of this justice.  
Second, soil that is cleared and worked by human hands manifests firm lines, whereby definite divisions become apparent.  Through the demarcation of fields, pastures, and forests, these lines are engraved and embedded.  Through crop rotation and fallowing, they are even planted and nurtured.  In these lines, the standards and rules of human cultivation become discernible.
Third and last, the solid ground of the earth is delineated by fences, enclosures, boundaries, walls, houses, and other constructs.  Then, the orders and orientations of human social life become apparent.  Then, obviously, families, clans, tribes, estates, forms of ownership and human proximity, also forms of power and domination, become visible.
In this way, the earth is bound to law in three ways.  She contains law within herself, as a reward of labor; she manifests law upon herself, as fixed boundaries; and she sustains law above herself, as a public sign of order.  Law is bound to the earth and related to the earth.  This is what the poet means when he speaks of the infinitely just earth: justissima tellus.
The sea knows no such apparent unity of space and law, of order and orientation.  Certainly, the riches of the sea — fishes, pearls, and other things — likewise are won by the hard work of human labor, but not, like the fruits of the soil, according to an inner measure of sowing and reaping.  On the sea, fields cannot be planted and firm lines cannot be engraved.  Ships that sail across the sea leave no trace.  “On the waves, there is nothing but the waves.”  The sea has no character, in the original sense of the word, which comes from the Greek charassein, meaning to scratch, to engrave, to imprint.  The sea is free.  According to recent international law, the sea is not considered to be state territory, and should be open to all for three very different spheres of human activity: fishing, peaceful navigation, and the conduct of war.  At least, that is what is written in international law textbooks.  One easily can imagine what becomes of this equal right to, and free use of the sea in practice, when a conflict arises over the use of space, when, for instance, the right to free fishing or the right of a neutral party to peaceful navigation clashes with the right of a mighty sea power to unlimited warfare.  One and the same surface — the sea, which is open to all three endeavors — is supposed to serve both as the theater of peaceful labor and as the arena if actions consistent with a modern sea war.  Thus, the peaceful fisherman has the right to fish precisely where the belligerent sea power is allowed to lay its mines, and the neutral party is allowed to sail freely in the area where the warring parties have the right to annihilate each other with mines, submarines, and aircraft.
Yet, this scenario touches on questions of a complex modern situation.  Originally, before the birth of great sea powers, the axiom “freedom of the sea” meant something very simple, that the sea was a zone free for booty.  Here, the pirate could ply his wicked trade with a clear conscience.  If he was lucky, he found in some rich booty a reward for the hazardous wager of having sailed the open sea.  The word pirate comes from the Greek peiran, meaning to test, to try, to risk.  None of Homer’s heroes would have been ashamed to have been the son such a daring adventurer, who tries his luck as a pirate.  On the open sea, there were no limits, no boundaries, no consecrated sites, no sacred orientations, no law, and no property.  Many peoples kept to the mountains, far from the coasts, and never lost the old, pious fear of the sea.  In his fourth eclogue, Virgil prophesied that in the felicitous age to come there would be no more seafaring.  Indeed, in one of the sacred books of our Christian faith, the Apocalypse of Saint John, we read that the new earth, purged of its sins, will have no more oceans: η θάλασσα ουκ εστιν έτη [Revelation 21:1].  Many jurists of terrestrial peoples also knew this fear of the sea.  One still can detect this in some 16th century Spanish and Portuguese authors.  Alciatus, a renowned Italian jurist and humanist of this period, said that piracy was a crime with extenuating circumstances.  Pirata minus delinquit, quia in mari delinquit [Piracy is a lesser crime, although it was a crime on the sea].  On the sea, there was no law.
Only when the great sea empires, maritime nations, or to use a Greek expression, thalassocracies, arose was security and order established on the sea.  The disturbers of the order thereby sank to the level of common criminals.  The pirate was declared to be an enemy of the human race (hostis geneneres humani).  This meant that he was ostracized and expelled, stripped of his rights, and made an outlaw by the rulers of the sea empires.  Such extensions of law to the free sea were world-historical events of revolutionary significance.  We will call them “sea-appropriations.”  The Assyrians, the Cretans, the Greeks, the Carthaginians, the Romans in the Mediterranean, the Hanseatics in the Baltic, and the British in the oceans of the world all “appropriated the sea” in this manner.  As one English author said: “The sea must be kept,” the sea must be taken.  However, sea-appropriations became possible only at a later stage in the development of human means of power and human consciousness of space.
By contrast, the great primeval acts of law established terrestrial orientations: appropriating land, founding cities, and establishing colonies.  In Isidore of Seville’s medieval definition in Etymologia, included in the first part of the famous Decretum Gratiani (around 1150), the essence of international law is stated concretely: “Jus gentium est sedium occupatio, aedificatio, munitio, bella, captivitates, servitutes, postliminia, foedera pacis, induciae, legatorum non violandorum religio, connubia inter alienigenas prohibita.”  Literally, that means: “International law is land-appropriation, building cities and fortifications, wars, captivity, bondage, return from captivity, alliances and peace treaties, armistice, inviolability of envoys, and prohibition of marriage with foreigners.”  Land-appropriation takes first place.  The sea is not mentioned.  In the Corpus Juris Justiniani (e.g. “Dig. ve verborum significatione 118”), one finds similar definitions in which war, the diversity of peoples, empires, boundaries, and above all, trade and commerce (commercium) are discussed in terms of the essence of international law.  It would be worthwhile to compare and to consider historically the individual components of such definitions.  At any rate, it would be more meaningful than the abstract definition of terms found in modern textbooks, which are geared to so-called norms.  For the most concrete determination of what one calls international law, any medieval enumeration and listing of contents is illuminating even today, because appropriating land and founding cities always is associated with an initial measurement and distribution of usable soil, originally divided among the appropriating tribe or people, and all institutions of the walled city or of a new colony are determined by this primary criterion.  Every ontonomous [Greek: ontonome] and ontological [German: seinsgerechte] judgment derives from the land.  For this reason, we will begin with land-appropriation as the primeval act in founding law.
A land-appropriation grounds law in two directions: internally and externally.  Internally, i.e., within the land-appropriating group, the first order of all ownership and property relations is created by the initial division and distribution of the land.  Whether public or private, collective or individual, or both, ownership derives from this initial land-division; whether or not cadastral surveys are undertaken and land registers are established are later questions, and they concern distinctions presupposed by and derived from the common act of land-appropriation.  In historical reality, every imaginable possibility and combination of legal and property titles abound.  But even when the initial land-division establishes purely individualistic private ownership or common clan ownership, this form of property remains dependent on the common land-appropriation and derives legally from the common primeval act.  To this extent, every land-appropriation internally creates a kind of supreme ownership of the community as a whole, even if the subsequent distribution of property does not remain purely communal, and recognizes completely “free” private ownership of the individual.
Externally, the land-appropriating group is confronted with other land-appropriating or land-owning groups and powers.  In this case, land-appropriation represents a legal title in international law in two different ways.  Either a parcel of land is extracted from a space that until then had been considered to be free, i.e., having no owner or master recognized by the foreign law of the land-appropriating group, or a parcel of land is extracted from a formerly recognized owner and master, and thereby becomes the property of the new owner and master.  It is not difficult to comprehend that acquisition of formerly free territory, lacking in any owner or master, presents a different and simpler legal problem than does acquisition of territory with recognized ownership.
In every case, land-appropriation, both internally and externally, is the primary legal title that underlies all subsequent law.  Territorial law and territorial succession, militia and the national guard presuppose land-appropriation.  Land-appropriation also precedes the distinction between private and public law; in general, it creates the conditions for this distinction.  To this extent, from a legal perspective, one might say that land-appropriation has a categorical character.  Kant expounds on this notion with great clarity in his Philosophy of Law.  He speaks of territorial sovereignty or, more preferably, of supreme proprietorship of the soil, which he considers to be “the main condition for the possibility of ownership and all further law, public and private.”  Of course, he construes this completely ahistorically, as a purely logical “idea of the civil constitution.”  Also, it seems to me that neither of his terms — supreme proprietorship and territorial sovereignty — is entirely useful for our discussion, since they are determined too much by the distinction (which too effect only later) between public and private law.  Today, most jurists understand “supreme proprietorship” only as property (dominium), and then only in the sense of private law, whereas “territorial sovereignty” is understood as public power and domination (imperium), and only in the sense of public law.  But there are two aspects to this distinction.  First, we must not think of land-appropriation as a purely intellectual construct, but must consider it to be a legal fact, to be a great historical event, even if, historically, land-appropriation proceeded rather tumultuously, and, at times, the right to land arose from overflowing migrations of peoples and campaigns of conquest and, at other times, from successful defense of a country against foreigners.  Second, we must remember that, both externally and internally, this fundamental process of land-appropriation preceded the distinction between public and private law, public authority and private property, imperium and dominium.  Land-appropriation thus is the archetype of a constitutive legal process externally (vis-a-vis other peoples) and internally (for the ordering of land and property within a country).  It creates the most radical legal title, in the full and comprehensive sense of the term radical title.  
This terrestrial fundament, in which all law is rooted, in which space and law, order and orientation meet, was recognized by the great legal philosophers.  The first law, said Giambattista Vico, was received by men from heroes in the form of the first agrarian laws.  For Vico, the division and demarcation of the soil (la divisione dei campi) is, along with religion, marriage, and asylum, one of the four primeval elements of all human law and all human history.  To avoid giving the impression that we are dealing merely with mythological legal antiquities, I will cite two more recent, modern (17th and 18th Century) legal philosophers: John Locke and Immanuel Kant.  According to Locke, the essence of political power, first and foremost, is jurisdiction over the land.  He understands “jurisdiction” in medieval terms, as sovereignty and dominion in general.  For him, the occupation of a country is subjugation by whoever has jurisdiction over the soil.  Domination is, first of all, rule only over the land and, only as a consequence of this, rule over the people who live on it.  Even in this purely theoretical, legal-philosophical formulation the aftermath of the Norman conquest by William the Conquerer (1066) is still recognizable.  The Englishman Locke, often described as a modern rationalist, in reality still is rooted deeply in the tradition of the medieval, feudal land law that resulted from the fundamental legal process of Norman land-appropriation.  However, as is evident in Kant’s doctrine of “supreme proprietorship of the land,” in philosophical fundamentals his legal theory also begins with the premise that all property and every legal order has land as its precondition, and is derived from the original acquisition of the earth’s soil.  Kant says” “First acquisition of a thing can only be acquisition of land.”  This “law of mine and thine that distributes the land to each man,” as he puts it, is not positive law in the sense of later state codifications, or of a system of legality in subsequent state constitutions; it is, and remains, the real core of a wholly concrete, historical and political event: a land-appropriation.
Thus, in some form, the constitutive process of a land-appropriation is found at the beginning of the history of every settled people, every commonwealth, every empire.  This is true as well for the beginning of every historical epoch.  Not only logically, but also historically, land-appropriation precedes the order that follows from it.  It constitutes the original spatial order, the source of all further concrete order and all further law.  It is the reproductive root in the normative order of history.  All further property relations — communal or individual, public or private property, and all forms of possession and use in society and in international law — are derived from this radical title.  All subsequent law and everything promulgated and enacted thereafter as decrees and commands are nourished, to use Heraclitus’ word, by this source.
The traditional history of international law is also a history of land-appropriations.  At certain times, sea-appropriations also became part of this history, and then the nomos of the earth rests on a particular relation between firm land and free sea.  Today, as a result of a new spatial phenomenon — the possibility of a domination of air space — firm land and free sea alike are being altered drastically, both in and of themselves and in relation to each other.  Not only are the dimensions of territorial sovereignty changing, not only is the efficacy and velocity of the means of human power, transport, and information changing, but so, too, is the content of this effectivity.  This always has a spatial dimension and always remains an important concept of international law for land-appropriations and land-occupations, as well as for embargoes and blockades.  Consequently, as a result of these developments, the relation between protection and obedience, and with it the structure of political and social power and their relation to other powers, is changing.  We are on the threshold of a new stage of human spatial consciousness and global order.
All pre-global orders were essentially terrestrial, even if they encompassed sea powers and thalassocracies.  The original terrestrial world was altered in the Age of Discovery, when the earth first was encompassed and measured by the global consciousness of European peoples.  This resulted in the first nomos of the earth.  It was based on a particular relation between the spatial order of firm land and the spatial order of free sea, and for 400 years it supported a Eurocentric international law: the  jus publicum Europaeum.  In the 16th century, it was England that dared to take the step from a terrestrial to a maritime existence.  A further step was taken with the industrial revolution, in the course of which the earth was newly conceived and newly measured.  It was essential that the industrial revolution occurred in the country that first had taken the step to a maritime existence.  This is the point at which we can approach the mystery of the new nomos of the earth.  Until now, only one author, Hegel, has come close to this arcanum [secret].  His words will serve to conclude this corollary: “The principle of family life is dependence on the soil, on firm land, on terra firma.  Similarly, the natural element for industry, animating its outward movement, is the sea.”

This quotation is pregnant with meaning for further prognoses.  For the moment, however, we must consider an elementary distinction, because it is not inconsequential whether the industrialized and mechanized world that men have created with the help of technology has a terrestrial or a maritime foundation.  But today, it is conceivable that the air will envelop the sea and perhaps even the earth, and that men will transform their planet into a combination of produce warehouse and aircraft carrier.  Then, new amity lines will be drawn, beyond which atomic and hydrogen bombs will fall.  Nevertheless, we cling to the hope that we will find the normative order of the earth, and that the peacemakers will inherit the earth.


St. Basil the Great Homily: "Against Those Who Lend at Interest"

1) Yesterday, as we were explaining Psalm 14, time did not permit us to reach the end of our discourse.  Today, however, we come like good-natured debtors, ready to repay the remainder owing from yesterday’s discussion.  The rest of the Psalm is so short, however, that upon learning it, one might think nothing of importance had been omitted; most of you have probably not even noticed that anything was left out.  And yet recognizing that this brief verse concerns matters of great interest to us, it seemed best not to lose the profit of examining it.  When the prophet wished to describe in words those who have attained perfection, those who are about to attain everlasting life, he reckoned among their noble works the following: “They do not lend at interest.”  This sin is denounced in many places in Scripture.  Ezekiel accounts the taking of interest and receiving back more than one gave as being among the greatest evils, and the Law specifically forbids this practice: “You shall not charge interest to your relative or your neighbor.”  And again the Scripture says, “Guile upon guile, interest upon interest,” and a certain Psalm moreover says regarding a city that prospers amidst a multitude of evils, “Interest-taking and guile are never absent from its squares.”  And now, the prophet identifies this very thing as the characteristic of human perfection, saying, “They do not lend money at interest.”
For in truth it is the height of inhumanity that those who do not have enough even for basic necessities should be compelled to seek a loan in order to survive, while others, not being satisfied with the return of the principal, should turn the misfortune of the poor to their own advantage and reap a bountiful harvest.  Thus, the Lord explicitly commanded us, saying, “Do not refuse anyone who wants to borrow from you.”  But the lover of money, when he sees someone prostrate at his feet, pleading—a person in this predicament will say anything, will stoop to any abasement—shows no mercy to the one who acts in such an undignified manner.  He does not consider human nature, gives in to no entreaty, but stands cruel and unwavering, not yielding to pleas, not moved by tears, steadfast in his denial.  He swears up and down, even calling down curses upon himself, that he is at a complete loss for funds, and that he too is searching for someone from whom to procure a loan.  He confirms the falsehood with an oath, thus acquiring perjury as an evil fringe benefit of misanthropy.  When, however, the one seeking the loan mentions rates of interest and names collateral, then he winks and smiles, suddenly recalling some old family acquaintance, and calls him “friend” and “neighbor.”  He says, “Let me see if I can find some money set aside somewhere.  I have here a deposit entrusted to me by a friend for trading, but he set heavy terms of interest on it.  For you, however, I will reduce the rate somewhat and lend it to you at a lower interest.”  And with this subterfuge, cozying up to the wretch and baiting the hook with his words, he binds him fast with contracts and departs, depriving him of freedom even more than the poverty that already oppressed him.  The one who has made himself liable for rates of interest he cannot pay has incurred self-inflicted slavery for life.  
Tell me, do you really seek riches and financial gain from the destitute?  If this person had the resources to make you even wealthier, why did he come begging to your door?  He came seeking an ally, but found an enemy.  He came seeking medicine, and stumbled onto poison.  Though you have an obligation to remedy the poverty of someone like this, instead you increase the need, seeking a harvest from the desert.  It is as if a doctor were to go to the diseased, and instead of restoring them to health, were rather to rob them of the last remnant of their strength.  Thus, you make the hardships of the miserable an occasion for profit.  And just as farmers hope for rain so as to multiply their crops, so you eagerly seek out deprivation and want, so that your money might produce a better return.  Do you not know that you are taking in an even greater yield of sins than the increase of wealth you hope to receive through interest?  The one who seeks the loan is caught in a predicament.  When he looks to his poverty, he despairs of ever making repayment, but when he looks to his present condition of need, he makes bold to seek the loan.  In the end, the borrower is defeated, bowed into submission by want, while the lender departs victorious, having secured his position with contracts and pledges.  

2) After receiving the money, on the first day he is joyful and festive, decked out in borrowed splendor, the change in his circumstances in clear evidence.  There is a richly laden table and lavish clothing.  Even the servants have brightened in their appearance.  He is surrounded by multitudes of flatterers and drinking companions, hovering around the house like swarms of drones.  But as the money begins to dwindle, the interest ever increasing as time passes, the nights do not bring rest to him, nor does the coming of the day bring joy, nor does the sunrise seem beautiful.  Rather, he despises his own life and loathes the days as they hasten onwards towards the appointed day of repayment, and hates the months as producers of interest.  If he lies down, in his sleep he sees the lender as a nightmare floating over his head.  If he wakes up, the interest consumes his thoughts and is a constant source of worry.  “When lender and debtor meet one another, the Lord visits them both.”  The one rushes like a hound to the hunt, while the other quails like quarry to the pursuit.  Poverty robs him of his courage.  Both have the sums at their fingertips, since the one rejoices at the increasing interest, while the other groans at the additional misfortune.
“Drink water at your own cistern”; that is, look to your own means.  Do not turn to other springs, but draw forth from your own springs the comfort of life.  Do you have utensils of bronze, clothing, a beast of burden, vessels for all your needs?  Sell them all; choose to give up everything rather than your freedom.  “But,” says the borrower, “I am ashamed to put them up for public sale.”  What will you do, when in just a little while someone else brings your possessions forward and auctions them off, disposing of them at bargain prices before your very eyes?  Do not turn to other doorways.  Truly, “the stranger’s well is narrow.”  It is better to take care of your needs little by little with your own devices, than to be raised up all at once by outside means, only to be completely stripped of everything you have.  If, then, you have anything to sell, why do you not alleviate your need with these resources?  And if, on the other hand, you have nothing with which to make repayment, then you are remedying evil with more evil.  Do not allow the moneylenders to lay siege to you.  Do not allow yourself to be tracked and hunted down like some kind of prey.
Borrowing is the origin of falsehood, the source of ingratitude, unkindness, perjury.  A person says one thing when seeking to borrow and another when the loan is demanded back.  “Would that I never met you!  By now I would have found some other means of relieving my need.  Did you not thrust the money into my hands against my will?  Your gold was alloyed with copper, and your coins were counterfeit.”  If the lender is your friend, do not ruin the friendship.  If the lender is an enemy, do not allow yourself to fall into the hands of your foe.  For a short time you will rejoice in what does not belong to you, but afterwards you will lose the family inheritance.  Now you are poor, but free.  By borrowing, however, you will not become rich, and you will surrender your freedom.  The borrower is a slave to the lender, a slave rendering involuntary service for the profit of another.  Dogs become tame if you feed them, but when the creditor receives back what was borrowed, he becomes even more enraged.  He does not stop his howling, but on the contrary, demands even more.  Although you swear you will pay, he does not believe you.  He pries into your private affairs, and inquires about your transactions.  If you emerge from your home, he seizes you and drags you away; if you hide yourself within, he stands outside and pounds at the door.  He shames you before your spouse, treats you disgracefully in front of your friends, seizes you by the throat in public places.  Even a chance meeting at a festival is a disaster; he makes life unbearable.
“But the need is great,” says the borrower, “and there are no other financial resources available.”  Your poverty will catch up to you like a speedy runner, and the same lack will be with you again, and more.  The loan is not complete deliverance; it merely provides a short respite from your helpless situation.  Let us suffer today the difficulties of want, and not deter them until tomorrow.  If you do not borrow, then your poverty will be the same tomorrow as it was today.  But if you borrow, you will make your troubles even worse, exacerbating poverty with rates of interest.  Now, no one blames you for being poor, since this misfortune came upon you involuntarily.  But if you make yourself liable for loans at interest, then everyone will fault you for your lack of good judgement.

3) Let us therefore not drag along behind us, together with the evils that befall us involuntarily, the burden of an evil freely chosen through our own foolishness.  It is the sign of an infantile mind not to care for oneself with the resources that are available, but rather to partake of something clearly and undeniably harmful while trusting in unseen hopes.  Consider, now, how you will repay the debt.  From the sum you received?  But it is not sufficient for both your needs and repayment.  And if you take into account the rate of interest, how will the funds be multiplied to such an extent that one portion takes care of your needs, while another serves to repay the principal, not to mention the interest that is accruing?  So we agree that you will not repay the loan from the amount you received.  How else, then?  Let us wait for these hoped-for solutions to materialize, and not come like fish to the bait.  For just as a fish swallows the hook together with the bait, so also we are perceived with interest rates for the sake of money.  There is no shame in poverty.  Why then do we bring the disgrace of indebtedness upon onto ourselves?  No one can heal wounds with more wounds, nor remedy evil with more evil, nor alleviate poverty with loans at interest.  Are you rich?  Do not borrow.  Are you poor?  Do not borrow.  If you are well off, you have no need of the loan; if you have nothing, you will not be able to repay it.  Do not give your life over to bitter regret, lest you count the days before you took the loan as the happiest of your life.
There is one thing in which we poor differ from the rich: freedom from care.  We laugh them to scorn when they lie awake at night while we sleep, and when they are constantly tense and worrying we are relaxed and at ease.  But the debtor is both poor and full of cares, awake by night, still awake when the day comes, fretting all the time.  At one moment he calculates the value of his own property, at another that of luxurious houses, the fields of the wealthy, the clothing of those he happens to meet, the furnishings of those who host entertainments.  “If these things were mine,” he says, “I would have sold so much, and paid off both the loan and the interest.”  Such ideas are fixed in his heart by night, and overwhelm his thoughts by day.  If you knock at his door, the debtor is underneath the bed in a flash.  His heart pounds if someone enters the room suddenly.  If a dog barks, he breaks out in a sweat, seized with terror, and looks for someplace to hide.  As the appointed day of repayment draws near, he weighs in his mind what deceit would be best, with what fabricated excuse to elude the debtor.  Do not only imagine yourself receiving the loan, but also paying it back.
To what manner of quickly reproducing beast are you yoking yourself?  It is said that rabbits give birth and breed again while still nursing their young.  And for those who set rates of interest, their money is loaned out and still bears interest and produces even more.  You did not even have the money in your hands, and already the lender was demanding the interest payment for the current month.  And when this was loaned to you as well, it brought forth more evil, and still more, evil without end.  It is from the tendency to multiply that this kind of greed derives its name.  For it seems to me that loans are said to “bear” interest on account of the great fecundity of evil.  How else?  Or perhaps it is said to “bear” on account of the pains and travails which it naturally produces in the souls of those who borrow.  The appointed day of repayment is ever present in the minds of those who are indebted, like labor pains to those who give birth.  Interest upon interest—wicked children of wicked parents.  The offspring of interest one might call even call a “brood of vipers.”  It is said that vipers are born by eating their way through their mother’s womb, and loans bear interest by devouring the houses of those who owe.  Seeds take time to grow, and animals take take to fully mature, but interest is born today, and today begins to bear.  Those animals that begin bearing at an early age also cease bearing early.  But money immediately begins to multiply, and possesses limitless ability to reproduce.  And every animal, once it reaches its proper size, stops growing.  But the silver of the greedy never stops growing as time passes.  And animals, once they have raised their young to maturity, cease bearing.  But when it comes to borrowed silver, the newborn gives birth, and the elderly continues to bear.  You should have nothing to do with this monstrous creature.

4) You behold the sun as a free person.  Why do you begrudge the liberty you now enjoy?  No boxer avoids the blows of an opponent as a borrower avoids chance encounters with the creditor, hiding his face among the shadows of buildings and alleyways.  “But how will I support myself?” such a person asks.  You have hands, you have skills—hire yourself as a laborer or a servant.  Life has many possibilities and opportunities.  Are you unable to work?  Then beg from those who have means.  Do you think it shameful to beg?  You will be put to even greater shame if you default on a loan.  In any case, I do not make these recommendations as if laying down a law, but rather to emphasize that anything is preferable to borrowing.  The ant is able, without begging or borrowing, to feed itself, while the bee gives what remains of its own food to the queen, which nature has given neither hands nor any skills.  And you, a human being, the inventive animal, can you not find even one contrivance out of so many that are available for the preservation of life?
We may observe, moreover, that it is not those who are truly deprived who come to procure a loan, since the creditors have no confidence in their ability to repay; most borrowers are rather people who devote themselves to unconstrained expenditures and useless luxuries, those who serve the passionate desires of women.  “I shall have fine clothing embroidered with gold,” she says, “and it is only fitting that the children should have beautiful outfits as well.  There shall be bright and colorful dress for all the slaves, and plenty of food for the table.”  The one who thus caters to the desires of a woman goes to the banker, and before using up the money received, exchanges one tyrant for another by constantly switching creditors, avoiding the accusation of poverty by extension of the evil.  Just as those who suffer from edema give the impression of being overweight, so also such a person only appears to possess means, ever receiving and ever giving back, paying off the prior loan with the subsequent, and preserving good credit for future borrowing by extending the evil.  Those who suffer from cholera constantly disgorge what they have eaten, and before their system is properly cleansed, they fill themselves up with a second portion, vomiting this up too with terrible, racking pains — thus also are those who exchange interest for interest, taking out a second loan before discharging the first obligation.  They are conceited for a time with things that do not belong to them, but afterwords mourn the loss of their own things.  How many are destroyed by good things that are not their own?  How many who became rich in a dream have gone down to utter ruin in reality?  “But many,” some will say, “have become rich by taking out loans.”  Many more, I think, have ended by fastening the noose for themselves.  You see those who have become rich, but you are not counting those who committed suicide, who could not bear to be publicly shamed before the creditors, who preferred death by handing to a life of disgrace. 
I have beheld a terrible spectacle: children of free birth being dragged to the auction block on account of the debts of their parents.  Do you have no money to leave behind for your children?  Do not take away their free birth as well!  Preserve but one thing for them: the possession of their freedom, the same inheritance you received from your own parents.  Children are not brought to court for the penury of their parent, but the debt of a parent leads straight to prison.  So not leave behind a ledger that will go down as a parental curse upon your children and grandchildren.

5) Listen you rich, to the counsel I am giving to the poor on account of your inhumanity: to remain in dreadful circumstances, rather than accepting the assistance offered by loans at interest.  But if you took the Lord at his word, would there be any reason for such words?  What is the counsel of the Master?  “Lend to those from whom you do not expect to receive again.”  “But what kind of loan is this,” some will say, “that is not linked to a hope of return?”  Only consider the meaning of these words, and you will wonder at the kindness of the Lawgiver.  When you are about to give to a poor person on the Lord’s account, that same gift is also a loan: it is a gift because you do not hope to receive it back again, but a loan because the Master in his great beneficence undertakes to make repayment for the poor person.  He receives a little in the guise of the poor, but gives much back on their behalf.  “The one who has mercy on the poor lends to God.”  Would you not like to have the Master of all as your guarantor for full repayment?   If one of the rich people of the town were to make an agreement with you to pay off some others’ loans, would you not take that person’s pledge?  And yet you do not allow God, the supreme repayer of debts, to do so.  Give away that portion of your silver that is lying idle, do not burden it with interest rates, and it shall be well for you both: you will have the certainty that your money is well guarded, while the one who receives it will have the profit from its use.  If you must seek a return on you investment, be satisfied with what comes from the Lord; he himself will pay the additional amount on behalf of the poor.  You should expect the characteristics of philanthropy from the true Philanthropist.  As it is, the interest you receive back shows every characteristic of extreme misanthropy.  You profit from misery, you extract gain from tears, you oppress the naked, you beat down the starving.  Mercy is nowhere to be found; there is no kinship with those who suffer.  And yet you call such gains the benefits of philanthropy!  “Woe to those who call the bitter sweet and the sweet bitter,” and to those who call misanthropy by the name of philanthropy.  The riddles which Samson posed to his drinking companions were not like this: “Out of the eater came something to eat; out of the strong came something sweet,” and out of the misanthropic person came philanthropy.  “Grapes are not gathered from thorns, nor figs from thistles,” nor philanthropy from interest rates.  “Every bad tree bears bad fruit.”
Some lenders are called “hundred-percenters,” some “ten-percenters” — these are dreadful names to hear.  They are monthly demanders, like demons that cause seizures, afflicting the poor according to the cycles of the moon.  Theirs is an evil act of giving, both for the giver and the receiver: the latter is ruined in terms of capital, the formal in terms of the soul.  The farmer who harvests the grain no longer searches for the seed that was sown and took root.  But you have the harvest, and still do not give up on the original amount.  You plant without soil; you harvest without seed.  It is unknown, however, for whose benefit you are collecting it.  The one who weeps in despair at the rate of interest is plainly before us, but in the future of the one who is about to enjoy the wealth received from them is uncertain.  It is unclear whether you will not rather leave this joy behind for others, while storing up an evil treasure of injustice for yourself.  “Do not refuse anyone who wants to borrow from you,” and “do not lend your money at interest”; these commandments from the Old and New Testaments were given so that you might learn what is for your benefit, and thus depart to the Lord with a good hope, receiving there the interest upon your good works, in Christ Jesus our Lord, to whom be glory and dominion forever and ever.  Amen.


Saturday, September 26, 2015

1880 Editorial by Mihai Eminescu on Banking

The opposition’s objections could not prevent the law regarding the establishment of a bank of discount and circulation from being voted or promulgated, as they could not prevent the redemption of the railways.
          The unexpected success of the redemption transaction is due to the mortgaging of tobacco income, an income of 10 millions corresponding to a capital of 200 millions, rather than to the skillfulness with which the redemption contract was drafted. It is clear that by orderly mortgaging all state revenues, by finding ourselves in Egypt's or Turkey's position, and by exposing ourselves to the possibility of having an international financial institution within our treasury, we will be able to conclude more similar transactions.
A loan does not necessarily imply mortgaging all income and belongings as a way of getting money. An efficient debtor is one who, through strategic transactions, proves that he is not as irresponsible as to risk losing all of his belongings or to squander them on falderals. Only someone who tirelessly saves money can have credit. Dr. Platter, a professor at the University of Chernovtsy, in his booklet entitled Usury in Galicia and Bukovina, provided highly documented information supporting the idea that owning real estate does not make a man eligible for a loan. Owning a real estate worth hundredfold the credited loan does not lower the usurious interest rates, making it possible that thousands of francs be mortgaged for a capital of 6 or 7 francs due to high interest rates and penalty clauses. By mortgaging real estates and revenues, the illusion of credit is produced, thus its true meaning is misinterpreted.
Therefore, the success of the redemption transaction is due, on the one hand, to the mortgaging of tobacco income, which was not enlisted in the Strasberg nor in the Bleichroeder Convention, and, on the other hand, to the exceptional stipulations made to shareholders, namely that they will hold a better position in the company than before. To prove this, we have only to compare the stock prices before the proclamation of the redemption with the stock prices we see today.
Nothing is easier to produce, and harder to maintain, than the economic illusion. Once we will have nothing more to mortgage, the financial management of the liberal party will prove its ineffectiveness, although the party is in the habit of withdrawing from power, letting others manage and fix their wrong-doings when the situation looks dire. The Discount and Circulation Bank is as problematic, from an economical point of view, as the redemption itself.
The so-called aridity of economic and financial capital consists in the fact that contracts are drafted using an abstract and complex language instead of a day-to-day one, so that the one reading the contract does not understand the terms and conditions written within. He is so deluded by the splendid outlook which seem to emerge from the contract’s abstractions that he overlooks the supreme principle, namely that any theory, even if presented in the most abstract way possible, needs to be reduced to something practical and concrete. Physical content is evidence for any truth. Otherwise, it is all a scam.
What do economic terms such as manufacturing, consumption, production, exchange, trade, etc., materially amount to?
What is production?
It is the act of modifying an object, either by hand or through the use of instruments, with the goal of manufacturing a valuable item.
What is consumption? It is the act of wearing out an instrument through labor. This category includes all resources that can be consumed and used. Food, shelter, clothes - these are all are necessary for the best and most durable labor instrument, namely manpower.
What is money, furniture or real estate then, if not savings?
It is a fact of life that the one who works the earth, having to plough, sow, thresh and cultivate wheat, will barter the result of his work with another item, for instance, with clothing, which is the product of the woolen manufacturer, of the weaver, the dyer and the tailor. An array of services is bartered for another, thus it is fair to conclude that not only is merchandise exchanged for merchandise, but in the end, labor is exchanged for labor.
However, one does not directly barter merchandise with a needed item, for the trade would be cumbersome. Therefore a commodity, one that is difficult to extract and rare in relation to its usage, was sought in order to pay for all kinds of services; one that can be divided and subdivided without losing its value. One that has easily distinguishable qualities such as constant weight, the distinct sound it makes, the ability of recognizing its alloys and that it does not tarnish. Gold and silver are the noble metals that meet all the required quality conditions.
We have the tendency of converting labor in quality and durable items, as such a great deal of labor can be amassed and exchanged for objects made from these metals, which do not lose their value even if they are melted, whereas other objects deteriorate and wear out.
Hence, these metals are merchandise, like any other.
Are banknotes also merchandize? Can you make something out of a banknote which produces a profit of at least one thousand part of the original printed worth?
 The answer is no, because that piece of paper has no value on its own and is used as a way of showing the worth of one's labor. Banknotes were issued in order to be redeemed for a legal tender, either gold or silver, of the same value as the provided service, a somewhat cumbersome process. Therefore metal money is the valuable representative of the commercial banknotes. When do we need banknotes, a currency which has opposite qualities of metal money? One is a commodity, the other is not; the first can be divided without losing its value, while the other one can be nullified by cutting it with a pair of scissors; the first serves as a labor instrument used in a myriad of industries, while the other is not. The first is money and the second is void. Be it issued by the state, by the national bank or by a simple merchant in Venice, banknotes are simply notes that show that whoever issues them will receive, by all means, the legal tender with a value equal to that which is printed on the note when the universal commodity, namely precious metals, is not at hand. Hence, banknotes are credit contracts.
In agricultural countries, labor is, by its own nature, limited and rigid, being able to produce a definite amount of produce of a precise value. An acre of land can only yield a limited amount of wheat, without the possibility of exceeding that limitation. Manpower is limited and no amount of exercise can overcome that; the same goes for the land, which, no matter the amount of fertilizer, cannot overcome its naturally limited production capacity. Hence, physical work, in which intelligence plays a small role, is characterized by limitation, loss, simplicity and difficulty.
The situation is entirely different where the arts and industries are concerned, an area in which intelligence is of utmost importance and physical work plays a secondary role. In this case utilization is not seen in relation to production, as in order to paint a picture, one only needs a canvas and a few paint colors; in order to tailor a dress one needs a pair of scissors, a quality pattern, thread and lace. The value of industrial work is thus infinitely multiplied. Farm work is burdensome and yields a limited amount of produce, while industrial work implies less effort and has, at least in theory, a limitless profit potential.
Agriculture will always be profitable. Not everybody needs lace for their dresses, but wheat is a necessity. Everybody, be them from India, the Greek islands or from Asia Minor, is forced by necessity to trade precious metals for produce. Thus, a universally necessary product is bartered with another product of equal importance. On the contrary, industrial objects need retail markets, namely places where their necessity is artificially produced. However, these markets are often isolated. It is, however, true that once the products reach the outlet markets, their worth will be translated into precious metal, but until then the producer needs to receive a note that stipulates what his labor is worth, and that note is the banknote.
The principle of the fiduciary issue is that it is directly proportionate with labor; if one doesn’t work, one won't make much money and if ones does work then that person will make money accordingly. It is obvious that the amount of issued banknotes is directly proportionate with the industrial production quantity, which, in turn can be multiplied in disproportion with the existent amount of issued money. An infinitely augmentable production requires an augmentable representative, which can be subjected to the same fluctuations as that of the industry, simultaneously rising and falling.
Thus we see that the difference between metal money and paper money is represented by the differences between the finite row production and the infinite industrial one. Labor is the basis of political economy. We think that our discourse has clearly demonstrated that, on the one hand, banknotes and production should necessary be directly proportionate, and on the other hand, that an exclusively agricultural country does not necessarily need banknotes. The needed industrial products, which are made abroad, cannot be bought with banknotes, and a country’s production shouldn’t be sold for a foreign currency.
An agricultural country sells grains for metal money, and with that money it buys industrial merchandise, and so the economical cycle goes. Administrating an agricultural country and its necessities should be as simple as agricultural labor itself. When market demand is greater than market supply, the country and its citizens will be left in ruins, no matter the temporary alternatives used in order to save the economy.
As far as the industry is concerned, namely the possibility of giving products a hundredfold or thousand fold of their original, row value, it cannot be and never was established without protection. Yet, protection can only be exercised by powerful political states. However, when one is bound by trade contracts and by the necessity of living on the breadline, thus leaving workers unemployed because the laborers from the neighboring countries provide cheaper labor, then a company cannot develop and specialize. On the contrary, it is gradually retrograded and the production is further limited, a limitation that is dictated by the very nature of production.
This theory, that the immanent dualism of money as a unit of account, depends on the dualism of labor, is challenged. The unprocessed production and the industrial one have nothing to do with our bank, as it only issues banknotes based on transactions made within the country. If such transactions are made, the bank will issue banknotes and if they are not being made, it will not.
Indeed, if the bank were a legitimate institution, nothing could be said against it. The bank, be it opportune or not, would be subjected to risk, as the shareholders won't receive the dividends they hoped to get, which, in turn, is due to the lack or limitation of real transactions concluded within the country, thus blocking the flow of private capitals. The bank would unmistakably register losses, but no one would be broke. The capital would be blocked, but safe within the bank.
Does this theory apply to our bank?
The established but provisioned principle is that the bank cannot issue notes that exceed 1/3 of the available metal money value and 2/3 of the amount based on bank bills, transactions, and short-term bank rates.
If this principle were to be followed precisely there would be no risks. But the law requires the bank to redeem the 26 million mortgage notes issued by the government, which, despite the obligation of being paid after the termination of the mortgage note, is not a transaction that the bank alone makes. In a time of crisis, the bank could not account for these 26 million, as such it must make a loan and accept the imposed stipulations. From that moment on, the bank becomes a paper money factory.
That which saddens us the most is that discussions on such delicate matters that can lead to total bankruptcy are not pragmatically led. Instead, they are focused on temporary gains, not keeping in mind the feasibility of their actions.
All companies that based their business strategy on artificially produced illusions, without considering their economic feasibility, had such temporary moments of success. Such companies rose with the thousands only to fall into the abyss of bankruptcy, impoverishing myriads of innocent people.
Only the reality of labor, carried out by following the requirements of political economy, namely by taking into account that the supply should be inversely proportionate to the demand, can weather all crises and upheavals. As such, any professional institution can rely only on the reality of labor.

[April 30, 1880]

Translated by Tatiana Danilova

Saturday, August 29, 2015

The Doctrine of Decisionism: Chapter 1 of Carl Schmitt's POLITICAL THEOLOGY

This is the first chapter of the English edition of Carl Schmitt's Political Theology, in which the German jurist and philosopher outlines his legal doctrine of decisionism.  I am posting it here because its opposite, the notion of so-called "rule of law," has been based on usury from the beginning.  One Israeli article, entitled "The Magna Carta's Very Jewish Underpinnings," explains how and why.  "Rule of law" is, in the final analysis, bourgeois capitalism.  Schmitt's decisionism offers a real alternative.

Sovereign is he who decides on the exception.

Only this definition can do justice to a borderline concept.  Contrary to the imprecise terminology that is found in popular literature, a borderline concept is not a vague concept, but one pertaining to the outermost sphere.  This definition must therefore be associated with a borderline case and not with routine.  It will soon become clear that the exception is to be understood to refer to a general concept in the theory of the state, and not merely to any emergency decree or state of siege.

The assertion that the exception is truly appropriate for the juristic definition of sovereignty has a systematic, legal-logical foundation.  The decision on the exception is a decision in the true sense of the word.  Because a general norm, as represented by an ordinary legal prescription, can never encompass a total exception, the decision that a real exception exists cannot therefore be entirely derived from this norm.  When Robert von Mohl said that the test of whether an emergency exists cannot be a juristic one, he assumed that a decision in the legal sense must be derived entirely from the content of the norm.  But this is the question.  In the general sense in which Mohl articulated his argument, his notion is only an expression of constitutional liberalism and fails to apprehend the independent meaning of the decision.

From a practical or a theoretical perspective, it really does not matter whether an abstract scheme advanced to define sovereignty (namely, that sovereignty is the highest power, not a derived power) is acceptable.  About an abstract concept there will be no argument, least of all in the history of sovereignty.  What is argued about is the concrete application, and that means who decides in a situation of conflict what constitutes the public interest or interest of the state, public safety and order, le salut public, and so on.  The exception, which is not codified in the existing legal order, can best be characterized as a case of extreme peril, a danger to the existence of the state, or the like.  But it cannot be circumscribed factually and made to conform to a preformed law.

It is precisely the exception that makes relevant the subject of sovereignty, that is, the whole question of sovereignty.  The precise details of an emergency cannot be anticipated, nor can one spell out what may take place in such a case, especially when it is truly a matter of extreme emergency and how it is to be eliminated.  The precondition as well as the content of jurisdictional competence in such a case must necessarily be unlimited.  From the liberal constitutional point of view, there would be no jurisdictional competence at all.  The most guidance the constitution can provide is to indicate who can act in such a case.  If such action is not subject to controls, if it is not hampered in some way by checks and balances, as is the case in a liberal constitution, then it is clear who the sovereign is.  He decides whether there is an extreme emergency as well as what must be done to eliminate it.  Although he stands outside the normally valid legal system, he nevertheless belongs to it, for it is he who must decide whether the constitution must be suspended in its entirety.  All tendencies of modern constitutional development point toward eliminating the sovereign in this sense.  The ideas of Hugo Krabbe and Hans Kelsen, which will be treated in the following chapter, are in line with this development.  But whether the extreme exception can be banished from the world is not a juristic question.  Whether one has confidence and hope that it can be eliminated depends on philosophical, and especially on philosophical-historical or metaphysical, convictions.

There exist a number of historical presentations that deal with the development of sovereignty, but they are like textbook compilations of abstract formulas from which definitions of sovereignty can be extracted.  Nobody seems to have taken the trouble to scrutinize the often-repeated but completely empty phraseology used to denote the highest power by the famous authors of the concept of sovereignty.  That this concept relates to the critical case, the exception, was long ago recognized by Jean Bodin.  He stands at the beginning of the modern theory of the state because of his work “Of the True Marks of Sovereignty” (chapter 10 of the first book of the Republic) rather than because of his often-cited definition (“sovereignty is the absolute and perpetual power of a republic”).  He discussed his concept in the context of many practical examples, and he always returned to the question: To what extent is the sovereign bound by laws, and to what extent is he responsible to the estates?  To this last, all-important question he replied that commitments are binding because they rest on natural law; but in emergencies the tie to general natural principles ceases.  In general, according to him, the prince is duty bound toward the estates or the people only to the extent of fulfilling his promise in the interest of the people; he is not so bound under conditions of urgent necessity.  These are by no means new theses.  The decisive point about Bodin’s concept is that by referring to the emergency, he reduced his analysis of the the relationships between prince and estates to a simple either/or.

This is what is truly impressive in his definition of sovereignty; by considering sovereignty to be indivisible, he finally settled the question of power in the state.  His scholarly accomplishment and the basis for his success thus reside in his having incorporated the decision into the concept of sovereignty.  Today there is hardly any mention of the concept of sovereignty that does not contain the usual quotation from Bodin. But nowhere does one find cited the core quote from that chapter of the Republic.  Bodin asked if the commitments of the prince to the estates or the people dissolve his sovereignty.  He answered by referring to the case in which it becomes necessary to violate such commitments, to change laws or to suspend them entirely according to the requirements of a situation, a time, and a people.  If in such cases the prince had to consult a senate or the people before he could act, he would have to be prepared to let his subjects dispense with him.  Bodin considered this an absurdity because, according to him, the estates were not masters over the laws; they in turn would have to permit their prince to dispense with them.  Sovereignty would thus become a play between two parties: Sometimes the people and sometimes the prince would rule, and that would be contrary to all reason and all law.  Because the authority to suspend valid law—be it in a general or in a specific case—is so much the mark of actual sovereignty, Bodin wanted to derive from this authority all other characteristics (declaring war and making peace, appointing civil servants, right of pardon, final appeal, and so on).

In contrast to traditional presentations, I have shown in my study of dictatorship that even the seventeenth-century authors of natural law understood the question of sovereignty to mean the question of the decision on the exception.  This is particularly true of Samuel von Pufendorf.  Everyone agrees that whenever antagonisms appear within a state, every party wants the general good—therein resides after all the bellum omnium contra omnes.  But sovereignty (and thus the state itself) resides in deciding this controversy, that is, in determining definitively what constitutes public order and security, in determining  when they are disturbed, and so on.  Public order and security manifest themselves very differently in reality, depending on whether a militaristic bureaucracy, a self-governing body controlled by the spirit of commercialism, or a radical party organization decides when there is order and security and when it is threatened or disturbed.  After all,  every legal order is based on a decision, and also the concept of the legal order, which is applied as something self-evident, contains within it the contrast of the two distinct elements of the juristic—norm and decision.  Like every other order, the legal order rests on a decision and not on a norm.

Whether God alone is sovereign, that is, the one who acts as his acknowledged representative on earth, or the emperor, or the prince, or the people, meaning those who identify themselves directly with the people, the question is always aimed at the subject of sovereignty, at the application of the concept to a concrete situation.  Ever since the sixteenth century, jurists who discuss the question of sovereignty have derived their ideals from a catalogue of determining, decisive features of sovereignty that can in essence be traced to the points made by Bodin.  To possess those powers meant to be sovereign.  In the murky legal conditions of the old German Reich the argument on public law ran as follows: Because one of the many indications of sovereignty was undoubtedly present, the other dubious indications also had to be present.  The controversy always centered on the question, Who assumes authority concerning those matters for which there are no positive stipulations, for example, a capitulation?  In other words, Who is is responsible for that for which competence has not been anticipated?

In a more familiar vein it was asked, Who is supposed to have unlimited power?  Hence the discussion about the exception, the extremus necessitas casus.  This is repeated with the same legal-logical structure in the discussions on the so-called monarchial principle.  Here, too, it is always asked who is entitled to decide those actions for which the constitution makes no provision; that is, who is competent to act when the legal system fails to answer the question of competence.  The controversy surrounding whether the individual German states were sovereign according to the constitution of 1871 was a matter of minor political significance.  Nevertheless, the thrust of that argument can easily be recognized once more.  The pivotal point of Max Seydel’s attempt to prove that the individual states were sovereign had less to do with the question whether the remaining rights of the individual states were or were not subsumable than with the assertion that the competence of the Reich was circumscribed by the constitution, which in principle meant limited, whereas the competence of the individual states was in principle unlimited.

According to article 48 of the German constitution of 1919, the exception is declared by the president of the Reich but is under the control of the parliament, the Reichstag, which can at any time demand its suspension.  This provision corresponds to the development and practice of the liberal constitutional state, which attempts to repress the question of sovereignty by a division and mutual control of competences.  But only the arrangement of the precondition that governs the invocation of exceptional powers corresponds to the liberal constitutional tendency, not the content of article 48.  Article 48 grants unlimited power.  If applied without check, it would grant exceptional powers in the same way as article 14 of the [French] Charter of 1815, which made the monarch sovereign.  If the individual states no longer have the power to declare the exception, as the prevailing opinion on article 48 contends, then they no longer enjoy the status of states.  Article 48 is the actual reference point for answering the question whether the individual German states are states.

If measures undertaken in an exception could be circumscribed by mutual control, by imposing a time limit, or finally, as in the liberal constitutional procedure governing a state of siege, by enumerating extraordinary powers, the question of sovereignty would then be considered less significant but would certainly not be eliminated.  A jurisprudence concerned with day-to-day questions has practically no interest in the concept of sovereignty.  Only the recognizable is its normal concern; everything else is a “disturbance.”  Such a jurisprudence confronts the extreme case disconcertedly, for not every extraordinary measure, not every police or emergency decree, is necessarily an exception.  What characterizes an exception is principally unlimited authority, which means the suspension of the entire existing order.  In such a situation it is clear that the state remains, whereas law recedes.  Because the exception is different from anarchy and chaos, order in the juristic sense still prevails even if it is not of the ordinary kind.

The existence of the state is undoubted proof of its superiority over the validity of the legal norm.  The decision frees itself from all normative ties and becomes in the true sense absolute.  The state suspends the law in the exception on the basis of its right of self-preservation, as one would say.  The two elements of the concept legal order are then dissolved into independent notions and thereby testify to their conceptual independence.  Unlike the normal situation, when the autonomous moment of the decision recedes to a minimum, the norm is destroyed by the exception.  The exception remains, nevertheless, accessible to jurisprudence because both elements, the norm as well as the decision, remain within the framework of the juristic.

It would be a distortion of the schematic disjunction between sociology and jurisprudence if one were to say that the exception has no juristic significance and is therefore “sociology.”  The exception is that which cannot be subsumed; it defies general codification, but it simultaneously reveals a specifically juristic element—the decision in absolute purity.  The exception appears in its absolute form when a situation in which legal prescriptions can be valid must first be brought about.  Every general norm demands a normal, everyday frame of life to which it can be factually applied and which is subjected to its regulations.  The norm requires a homogenous medium.  This effective normal situation is not a mere “superficial presupposition” that a jurist can ignore; that situation belongs precisely to its immanent validity.  There exists no norm that is applicable to chaos.  For a legal order to make sense, a normal situation must exist, and he is sovereign who decides whether this normal situation actually exists.

All law is “situational law.”  The sovereign produces and guarantees the situation in its totality.  He has the monopoly over this last decision.  Therein resides the essence of the state’s sovereignty, which must be juristically defined correctly, not as the monopoly to coerce or rule, but as the monopoly to decide.  The exception reveals most clearly the essence of the state’s authority.  The decision parts here from the legal norm, and (to formulate it paradoxically) authority proves that to produce law it needs to be based on law.

The exception was something incommensurable to John Locke’s doctrine of the constitutional state and the rationalist eighteenth century.  The vivid awareness of the meaning of the exception that was reflected in the doctrine of natural law of the seventeenth century was lost in the eighteenth century, when a relatively lasting order was established.  Emergency law was no law at all for Kant.  The contemporary theory of the state reveals the interesting spectacle of the two tendencies facing one another, the rationalist tendency, which ignores the emergency, and the natural law tendency, which is interested in the emergency and emanates from an essentially different set of ideas.  That a neo-Kantian like Kelsen does not know what to do with the exception is obvious.  But it should be of interest to the rationalist that the legal system can anticipate the exception and can “suspend itself.”  That a norm or an order or a point of reference “establishes itself” appears plausible to the exponents of this kind of juristic rationalism.  But how the systematic unity and order can suspend itself in a concrete case is difficult to construe, yet it remains a juristic problem as long as the exception is distinguishable from a juristic chaos, from any kind of anarchy.  The tendency of liberal constitutionalism to regulate the exception as precisely as possible means, after all, the attempt to spell out in detail the case in which law suspends itself.  From where does the law obtain this force, and how is it logically possible that a norm is valid except for one concrete case that it cannot factually determine in any concrete manner?

It would be consequent rationalism to say that the exception proves nothing and that only the normal can be of scientific interest.  The exception confounds the unity and order of the rationalist scheme.  One encounters not infrequently a similar argument in the positive theory of the state.  To the question of how to proceed in the absence of a budget law, Gerhard Anschütz replied that this was not at all a legal question.  “There is not only a gap in the law, that is, in the text of the constitution, but moreover in the law as a whole, which can in no way be filled by juristic conceptual operations.  Here is where public law stops.”

Precisely a philosophy of concrete life must not withdraw from the exception and the extreme case, but must be interested in it to the highest degree.  The exception can be more interesting to it than the rule, not because of a romantic irony for the paradox, but because the seriousness of an insight goes deeper than the clear generalizations inferred from what ordinarily repeats itself.  The exception is more interesting than the rule.  The rule proves nothing; the exception proves everything: It confirms not only the rule but also its existence, which derives only from the exception.  In the exception the power of real life breaks through the crust of a mechanism that has become torpid by repetition. 

A Protestant theologian who demonstrated the vital intensity possible in theological reflection in the nineteenth century stated: “The exception explains the general and itself.  And if one wants to study the general correctly, one needs to look around for a true exception.  It reveals everything more clearly than does the general.  Endless talk about the general becomes boring; there are exceptions.  If they cannot be explained, then the general also cannot be explained.  The difficulty is usually not noticed because the general is not thought about with passion but with a comfortable superficiality.  The exception, on the other hand, thinks the general with intense passion.”

Monday, August 10, 2015

The Economic Views of Gottfried Feder

On Loan-Capital vs. Productive Capital

“Where must the abolition of enslavement to interest begin? With loan-capital! Why? Because loan-capital, compared to all industrial big capital, is so overpowering that the great money-powers can only be fought effectively through the abolition of interest-slavery. 20:1 is the proportion of loan-capital to industrial big capital.”

“The insatiable interest-need of big loan-capital is the curse of all laboring humanity!”

“Interest, the effortless and endless influx of goods based on the mere ownership of money without any addition of labor, has caused the great money-powers to grow.”

“The curves of loan-capital show at first a quite gradually rising development; the development then goes faster until, ever wider and dragging everything with it, it raises itself far beyond human concepts and strives toward infinity. The curve of industrial capital by contrast remains in the finite!”

On the Fraudulence of Marxism

“It is now quite astonishing to see how the socialist idea-world of Marx and Engels, from the Communist Manifesto to the Erfurt Program (especially Kautsky), and even the current social leaders, spare the interests of loan-capital as if on command. The sanctity of interest is taboo; interest is the holy of holies; no one has yet dared to call it into question. While property, nobility, security of person and possessions, the laws of the Crown, privileges and religious convictions, honor of officers, fatherland, and freedom are more or less outlawed, interest is holy and unassailable.”

“Social-Democracy is doomed because it is based on Marxist ideology, which does not recognize the radical difference between industrial capital and loan capital.”

On Usury and War

“The idea of interest on loans is the diabolical invention of big loan-capital; it alone makes possible the lazy drone’s life of a minority of tycoons at the expense of the productive peoples and their work-potential; it has led to profound, irreconcilable differences, to class-hatred, from which war among citizens and brothers was born.”

“The big tycoons lurk indeed as the ultimate driving force behind world-encompassing Anglo-American imperialism; nothing else.”

On Usury in History

“In the Middle Ages short work was often made of usurers; the farmers or citizens having been bled dry got together and beat the profiteers to death.”

“It should be most emphatically stressed that precisely our contemporary culture, precisely the internationality of economic relations, make the interest-principle so murderous. The foregoing historical retrospective should also not be regarded as providing an analogy for the circumstances of today. When the Babylonians overcame the Assyrians, the Romans the Carthaginians, the Germans the Romans, there was no continuation of enslavement to interest; there were no international world-powers. The wars were also not financed through borrowing but with treasures accumulated during peace. David Hume gives a very nice overview of this in his Essay on Public Credit. Only the modern age with its continuity of ownership and its international law allows loan-capital to escalate into infinity.”