Behemoth or Leviathan?

State and Unstate

In a recent post on his Substack, historian Adam Tooze has an interesting set of reflections on the deal foisted on Columbia University by the Trump administration. His colleague, David Pozen, thinks it raises the specter of “regulation by deal,” a regime of ad hoc rulemaking dictated by whoever is in power. “….[T]he agreement gives legal form to an extortion scheme,” he writes.

The spread of regulation by deal would be worrisome in any period, but it is especially worrisome at this time and in this domain. Authoritarianism feeds on manufactured emergencies and hardball tactics that give the executive leverage to attack political opponents and compel obedience. Basic research, on the other hand, thrives under stable institutional frameworks, reliable funding commitments, and a climate of free inquiry. Deals like Columbia’s enhance the power of presidents and their allies within targeted universities; sideline Congress, the courts, and most faculty; and sow fear and uncertainty throughout civil society. They are fundamentally inconsistent with the logic of academic freedom.

Tooze develops this line of thinking and replaces “governance” with “regulation,” since it captures the absence of regularity and rationality more accurately:

Seeking to understand the Trump administration’s actions as regulation harks back too closely to a notional, prior order of orderly regulation. The Trump administration has well and truly departed from that. It is engaged in a running assault on the very idea of orderly regulation, in favor of hit-and-run, ad hoc threats and intimidation. This is a mode of government, though I am not sure you can really call it governing, which again implies too much regularity and too clear a strategic conception. So I think our best bet is the neologism “governance”.

But Tooze also wants to offer a critique of the idea that there was a clear orderliness before the present chaos:

….modern power - both the capitalist and other kinds - have never had a straight-forward relationship with the rule of law. They may imagine otherwise and invest in arguing that “market economies” and “the rule of law” are natural bed fellows. But this is ideology. The exception, the emergency, the crisis, the ad hoc are not bugs they are features of our reality. They are both systemically produced. The international relations system produces and reproduces discretionary violence. The capitalist economy expands and grows through crisis.

And at least since the early 20th century it is clear that one mode of capitalist governance that may emerge is precisely the kind of ad hoc intervention seen in 2008.

The most spectacular form of this kind of governance is what Franz Neumann in his masterwork on the Nazi regime called the “un-state” or Behemoth.

In saying fascism is the most spectacular kind of this form of governance, I am NOT suggesting that what we are witnessing in the US today is fascism. But rather the opposite.

You are far more tempted to make the absurd Trump=fascism equation, if you start from a silly and simplistic account of “liberal reality”. If instead, we start from the position that modern power - both the capitalist and other kinds - have never had a straight-forward relationship with the rule of law, that idealized models of “regulation” are just that, idealized, that the line between regulation, government and goverance is always blurred, which is why the terms are blurry, then at any given moment the real question is how this awkwardness is being managed. What are the tools? What are the “discourses” and justifications? What passes for a deal and what does not?

The Trump administration’s governance by bullying is clearly a departure in style, tone and ferocity. But at the same time, it is very much part of a piece with the increasingly crude style of “lawfare” and ad hoc deal-making that characterizes much of American corporate, business and public life today. This extends from the high-stakes divorce to “creditor on creditor” violence and the myriad out of court settlements, which is where so many disputes are “settled”. Isn’t this what high stakes lawyering in the United States today very often consists of? Does the invocation of “law” in the US today not come with a connotation of menace, threat, extortion, ruinous and arbitrary fees, obscure deal-making, hidden clauses, life-ruining nuisance suits, and bizarre somersaults from the freedom of speech to accusations of terrorism.

Naturally, as a proponent of the “absurd Trump=fascism” thesis, I’m disappointed that as impressive a historian as Tooze doesn’t want to endorse it as well. But I also have a bit of trouble understanding the logic here. Surely, if Nazism is at the extreme end of the breakdown of the state, with its regular notions of law and right, into factional and clique-based power politics, and we are entering a more fierce and disturbing era of unstatehood, then one must at least say, we are heading in a fascist direction? And I don’t think the fascism thesis relies upon a naive separation of the idealized liberal rule of law and the present disorder and reign of terror. Quite the opposite. I think rather it can show how fascism is implicit in liberal democratic institutions and develops out of their internal contradictions and failures. As Mick Jagger sings, “It's just a shot away.” This was the position of the Frankfurt School, of which Neumann was a member.

I think one key to understanding this continuity or dialectical development of fascism from within liberal society is that liberal society is divided into two conflicting notions of the subject. Following Hegel’s analysis in the Philosophy of Right, we’ll call one “bourgeois” and one “citizen.” The bourgeois is totally self-seeking, looking for personal and familial advantage, while the citizen follows and upholds the universal laws and regulations that make an orderly life possible. The life of the bourgeois is intrinsically competitive; the life of the citizen is intrinsically cooperative. Institutions must form the citizen out of the bourgeois, participating in what Hegel calls “the corporation,” and they become self-consciously aware of the need for solidarity and mutual support.

But the competitive nature of bürgerliche Gesellschaft, civil or bourgeois society, is always a threat to the lawlike world of right and citizenship. And in its intrinsic inequality, it creates a “mob” or “rabble” that does not recognize itself as a citizen but just a wretch denied the fruits of bourgeois society. The rules appear to it as just so many hypocritical lies designed to protect the system’s benefactors—just another racket. And so it is, if the process of social integration is breaking down. But there is also a “rich rabble” that does not respect the law, but only headlessly pursues its self-interest. To them, corruption is the rule, not the exception; society is a jungle, and law is a tool, a weapon. Sorry to quote myself, but:

These are people who accumulate wealth and power, but see that accumulation as absolute and do not recognize any ethical norms of the surrounding society. The rich rabble is also detached from the mediating institutions of “the corporation.” It mistakes public envy of its “external demonstration of success, “ its conspicuous consumption, and luxury to be a form of recognition. As Frank Ruda describes in his book Hegel’s Rabble, “The rich rabble is marked by the ‘corruptness’ which manifests in the fact that the rabble ‘takes everything for granted for itself’ because he denies the right to any of the ethical, legal, or statist institutions…[it assumes] an economically determined state of nature, in which it can also assume the economic right of the fittest.” Now, who does that sound like?

Hannah Arendt also recognized the fundamental identity between bourgeois society and the mob in her Origins of Totalitarianism, writing “…the mob is not only the refuse but also the by-product of bourgeois society, directly produced by it and therefore never quite separable from it.” For her, mob attitudes were just bourgeois attitudes—brutally acquisitive, paranoid, egoistic, conspiratorial—stripped of liberal hypocrisies.

What Tooze is describing as “actually existing liberalism” with its no-holds-barred lawfare is an enrabbling or enrabbled civil society: the bourgeoisie swallowing the citizen. And you can see that in Trump, who is the archetypal member of the rich rabble, the petty bourgeois, if you’ll permit the pun: vain, envious, litigious, greedy, etc., who recognizes no right except power and money. The ideologies of racism and chauvinistic nationalism are just the principles of fundamental lawlessness and the impossibility of social integration—except through the destruction of competitors—raised to the collective level. It divides the world into roving gangs and rackets.

But it’s important to understand that the rabble is always implicit and operating within the competitive structures of bourgeois society. The gangsterism was always brewing there. Fascism is the triumph of this mob over whatever remained of liberal society’s commitment to right. Again, this mob is not some alien being that attacks civil society from without; it is civil society, bourgeois society, attacking the state. As Dylan Riley outlines in his theory of fascism, what we are observing is a superabundance or overdevelopment of civil society that overwhelms the integrative functions of the state.