Collective needs and individual freedoms “How To Balance?”

“To begin with, I would like to take up some of the points I tried to define a few days ago in Turin in attempt to understand the transformation that is taking place before our eyes.

I think the first thing we know is that we have to realize that the legal and political order we thought we were living in has now completely changed. As you see, as you know, the operating force of this transformation — perhaps one should say of this coup d’état because a real coup d’état has taken place — the operating force of this transformation is, as you know, the State of Emergency, or the State of Exception, which precisely — not by chance — is a neutral zone between politics and law. The State of Exception lies between politics and law.

Almost twenty years ago, in a book in which I tried to provide a theory of the State Of Exception, I noted that the situation of exception has become a normal form of government. You know very well, don’t you, that in a series of crises, we always governed with respect to a crisis (economic, ecological, terrorism), and in the end we found this permanent virtual crisis that is not a concrete disease, mind you, but health. It is health itself that is the virtual ground for a permanent crisis, because tomorrow it might not even be a viral disease — it could be cardiovascular issues…

So, what is the State of Exception? The State of Exception is a space, as you know, of suspension of the law, therefore an anomic space, without law, which however is included in the legal system. This general definition is interesting, but it is interesting if you really try to specify what is the mechanism through which the State of Exception works. Well, from a technical point of view, what we can say is that in the State of Exception or Emergency there is a separation of the law from the law enforcement. What do I mean by this? a very simple thing: the State of Exception is a state of law in which the law is in force — it is claimed to be in force — but it is not applied, it has no actual enforcement, it is suspended. And — this is an important point — decrees and measures that do not have the nature of law acquire the enforcement of law. Therefore, measures, provisions, decrees that do not have the force of law acquire law enforcement.

So, you see, what happens, what’s at stake in an Exception State, at the end of the day, is a fluctuating force of law, separate from the law.

Do you understand what transformation it implies in the legal order, which is assumed to be founded on law, what this fluctuating force of law, separated from the law, means? First of all it means a real eclipse of the law, because a law separated from its enforcement is no longer a law.

We have to be careful of the things we are used to. How it works, is that the paradigm of the law is replaced by a set of ambiguous clauses and formulas that you have heard many times: “for reasons of security”, “state of necessity”, “public health”, “public order”. Jurists have known about these ambiguous formulas for a long time because they have not been invented now. Just think of the public health committees in the French Revolution. These clauses have the particular feature that, being ambiguous, they need someone to determine them, to decide upon their concrete meaning. And this someone is precisely the one who sets up the State of Exception.

Here, you see, a first consequence of this new order is that a principle is lacking, one of the fundamental principles of the juridical order, that is legal certainty. If the State — as jurists have widely noted — instead of giving a stable normative discipline, intervenes thanks to the emergency on a certain phenomenon every 15 days, as it happens, every month, every 15 days, and even declares that there will be no fixed rule, that the legislation will change continuously, it is clear that that phenomenon no longer responds to a principle of legality, because the principle of legality consists precisely in the fact that the State formulates a stable law and that citizens know what this law is. Instead we live in a state of uncertainty of law. This is a fact that I think is very important, on which we must reflect, because not only is it a transformation of the legal order, but it is the attempt to transform our way of life. Because it is clear that if we no longer have a reference to a stable law, it is our very way of life that is called into question because-we live in a state of fluctuating illegality. That we don’t know where it will go, what form it will take. But this must be clear — a jurist knows very well — such a state is no longer a legal state, because, precisely, the certainty of law has disappeared.

Therefore, it is useless to appeal to the law, to the constitution -we are no longer dealing with law and the constitution but with a fluctuating force of law that can be assumed from time to time by a certain individual, sometimes outside the system, a doctor, an expert or even simply the policeman who decides on the situation of the moment.

I believe — at least I thought I could understand this — that this model I have quickly described derives in some way from a model of the State which, in a book of 1941, a legal historian — a very fine book that should be re-read today — called Ernst Fraenkel, tried to explain the Nazi State and the Fascist State with — he called this model the Dual State. What is the Dual State? The Dual State is a state in which the previous normative structure of the state remains in place (“Normenstaat”, the Normative State) and this is flanked by an indeterminate discretionary state — he called it the “Maßnahmenstaat” State of measures, or orders. He called it the “Maßnahmenstaat”, the state of measures, of decrees, if you will, and the real government is based on this duality in which the first one is somehow present but also inactive. Keep in mind that when, for example, fascism and Nazism are defined as dictatorships, it is a gross error from the legal point of view, Mussolini was not a dictator, he was the legal Prime Minister of the Italian government, Hitler was not a dictator, he was the Chancellor of the Reich. But what happens, this structure that apparently remains in place is accompanied by an informal structure, discretionary, the Dual State, so for example Mussolini is also the Duce, but the Duce is not an office of the constitution of the state, it indeed does not exist, it is not an office position, but it is the one who simply decides! and the same goes for Hitler (Fuehrer).

There is a sentence by Fraenkel that I want to quote because it is useful to understand. Fraenkel writes: to save themselves, Capitalism and the German political economic forces needed not a unitary state, a classical state model, but a double state, acting arbitrarily on the one hand, and rationally on the other.

Well, I believe that what we are experiencing now is something that descends from this model, but with some variations, with some clarifications, which have been extensively theorized by American political scientists, in particular by a man named Sunstein — whose books have just been translated into Italian by major publishers — who calls this thing the Administrative State.What they mean by the Administrative State, is a model of State in which governance, the exercise of government, exceeds the classic powers provided by the Constitution — legislative, executive, judicial — yes, those are there, but there is another administrative force, a kind of administrative leviathan, purely administrative, which in the name of the management and in a discretionary manner exercises powers that are not given, that do not belong to it, but does so in the name of public necessity. So there is this administrative leviathan that can override the commandments of the laws and the Constitution not in order to ensure freedom in general, says this Sunstein, but to guide the choice of citizens. Not the free choice, but what he calls the governability of their choices — and what is the governability of their choices? The governability of their choices is to guide the choices, to determine the choices, to create a situation (this is what is happening now) in which people accept a choice that has been predetermined. Here, this coincides precisely — this is the novelty of the model — that we see that the decision-making power in this type of state is also exercised by powers outside the legal sphere: for example, commissions of doctors, experts, economists — what we see: there are commissions that do not have any constitutional structure, which are completely uncoordinated. But these commissions, practically, are the ones who decide.

You understand that through these factual procedures the Constitution is altered in a much more radical way than what was envisaged by the constituents, regarding the possibility of changing the Constitution, the power to revise the Constitution. In this way the Constitution becomes what a disciple of (Larsen?) called a “papierstuecke”, a pieces of paper. But it is precisely important, I think, to remember that this model ultimately derives from the Nazi and Fascist Dual State.

Now I wanted to move on to some other considerations.
It has been said that the modern state lives on presuppositions that it cannot guarantee. I believe that it is possible that the present situation that I have tried to describe to you is the form in which this absence of guarantees has reached, so to speak, its critical level. And the modern state, which has given up according to all evidence guaranteeing its presuppositions (we see clearly that the modern state is not guaranteeing its presuppositions) — that this state has perhaps reached the end of its history and that perhaps in a certain way we are experiencing the end of this model of the state that we believed — who knows why — was for ever.

Therefore, I believe that any discussion today on what we should do must start from the awareness, from the observation that this political-legal civilization — perhaps not only political-legal — in which we have been living has now collapsed, or rather (since it is, as you know, a society based on money), this society, this State, has gone bankrupt.

That our culture was on the threshold of a general bankruptcy, you see that lucid minds had understood this for a long time. I remember when I was a boy, talking to Pasolini and Elsa Morante, they were already saying these things that we are saying, and it seemed absurd to me because, now that I looked at it, it seemed like paradise from this point of view, and yet they saw what was happening. So, basically, the most lucid minds of the twentieth century had already diagnosed the bankruptcy of our culture.
Here we now have the experience certainly not pleasant to live in the facts of this bankruptcy — which is intellectual, ethical, religious, legal, political, economic, in the form precisely the extreme has been taking: the State of Exception instead of law, information instead of truth, health instead of salvation, medicine instead of religion. It is clear that here medicine has become a religion. The vaccine is the new sacrament, otherwise it is not explained why people, knowing that they risk their lives, at any cost want to vaccinate.

So, what to do in such a situation?
Of course, on an individual level, first of all, continue to do well what one has always tried to do well, even if it seems that there is no reason to do so, indeed there is all the more reason to do it.
But, of course, this is not enough. I was thinking of the reflections that Hannah Arendt made in 1943, think of what she was going through, even worse than what we are going through.She said, she wondered to what extent we are obliged to the world, even if this world — as in her case as she was a Jew — excludes us; or even if we ourselves are forced to withdraw — and she was referring to those who during Nazism lived in a state called internal emigration — among other things, it may be that we will be forced to live in a state of internal emigration or monastery. Here, however, she was saying: maybe we still owe something, we still owe something and therefore, in this text, curiously — but I think it is important — Hannah Arendt indicated friendship as a possible principle of a reconstitution of a society within society, of a community within the state.

I believe that in the face of this growing depoliticization of individuals — because today we are witnessing a process of depoliticization of individual life, this is evident — finding in friendship the principle of a new politics, of a new politicization would be important.
I believe that in some way you students have begun to do this by creating your association, but I believe that it is a matter of extending it more and more, this thing must be practiced and extended to the maximum, we absolutely must recreate a society within society.

And finally, I would like to address the students who are present here and who have invited me to speak. I would like to remind you of something that should be at the basis of any university study and which, I believe, is not usually mentioned in the university, and it is simply this: before, living in a country or in a state, men have had their vital dwelling in a language, and I believe that only if we are able to investigate and understand how this vital dwelling has been manipulated and transformed, we will be able to understand how the political and juridical transformations we have been talking about could take place. That is, the hypothesis I want to suggest is that the transformation of the relationship with language is the condition of all other transformations of society.

We don’t realize this because if you think about it, language is this strange thing that remains hidden in what we name to understand, in fact we can only speak if we pay attention to this language.

However, I believe that it is no coincidence that the great transformation that took place with the Industrial Revolution in England and the Political Revolution in France were in some way accompanied if not preceded by a reflection, as you know, on a problematization of reason, that is, of what defines man as a talking animal. Ratio comes from the verb reor, which means to count, to calculate, but it also means to speak, but understood in the sense of redde rationem, to give an account, and therefore this dream of modern reason coincides with a sort of rationalization of the relationship with language, a transformation of language that makes it possible to give an account and to govern integrally not only nature but above all the life of human beings.

And what is what we call science, if you think about it, if not a practice of language that tends to eliminate in the speaker every ethical, poetic and philosophical experience of the word in order to transform language into an instrument of information exchange and, at the limit, something that can be done without — it is clear that the ideal of science would be to be able to do without language, to replace it with numbers, algorithms.

Why can science never make us happy? Because science basically presupposes that the human being is a biological body that tends to be dumb: the word is put in brackets. Here is the question I wanted to ask, what transformation do we have to imagine in the relationship with language in order for what is happening to take place? The most extraordinary thing about what we are experiencing is that a lie

today is evident, lie is blatant, that is, we do not have to reason in order to understand, everything that happens is evident, and yet people seem to have lost the ability to distinguish truth from lie in their reasoning, in their speaking.
If today doctors, jurists, scientists accept a discourse that completely renounces an idea of a question about truth (of course many have been paid to do this, it is fine, but if we do not mean those who have been paid to do it) — evidently in their language they have lost the ability to think, that is to hold in suspense (you know what thought comes from pendere, to hold in suspense), they can now only calculate or repeat.

In that masterpiece of twentieth-century ethics that is Hannah Arendt’s book on Eichmann, Arendt observed, if you have read it, that Eichmann was a perfectly rational, rationalizing man, not even a bad one, perfectly rational, and that he was therefore able, through his reasoning, to organize the complex operation that was the transport of Jews to the camps. But what did this man lack then? He lacked the ability to think, but not to think in the sense of making theories, no, thinking is first of all the ability to interrupt the flow of discourse. Eichmann could not interrupt the flow of discourse, of orders, so he had something in his mind that he could only obey, that he could never be holding in suspense, thinking. Therefore, the first task facing us is to find a springing, that is, a poetic and thinking relationship with our language. Only in this way will we be able to get out of this dead end that I believe could probably lead to the extinction — if not physical, at least ethical and political — of humanity.

Thank you.”

taken from here

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