From Consultative Stand-Off to Slush Funded Grants of Bureaucratic Authority: Modern Legislatures

There’s an anomaly in the canonical three branches of government of the modern liberal constitutional order. The executive and the juridical descend rather directly, and in still recognizable form, from ancient pre-modern predecessors. The language in which the modern executive is described, such as “commander-in-chief of the armed forces” recalls the role of the monarch and reflects an understanding of the need for an occupant of the center—even if the modern liberal is far more interested in telling you what the executive can’t and shouldn’t do, certainly not without the approval of the media and intelligence community. Judges, meanwhile, still hear cases within a quasi-ritualized setting, with highly formalized procedural rules, relying upon precedent and constrained by an appeal process. But the modern legislature bears no resemblance at all to its medieval predecessors, parliaments which were called by the king when he needed money, usually for a war. These parliaments didn’t create laws and only controlled budgets in the sense that they could refuse the king’s request for funding. (There is a slight trace of this role in the American senate, with its right to “advise and consent” regarding presidential appointees.) And, in fact, what the modern legislature creates is not really “law,” which can only be “created” in the context of some judgment, or by a decree from the executive. That is, only someone with a responsibility to see through the decision-making process to its conclusion can “make law.” What modern legislatures do is create grants of authority to bureaucratic agencies along with money to service those agencies without the possibility of the “oversight” which is so often demanded. (If genuine oversight comes along, it’s because the political winds have shifted and a new faction in power wants the funds directed elsewhere.) From and through this activity flows the management of political campaigns and control of candidates and officeholders, the penetration of business and interest groups of various kinds into governance, the freedom of action of the intelligence agencies and the government by leak in which the media plays a crucial role. And the distortions and corruptions of the executive and judicial branches are greatly aggravated by their obligation to adhere to “laws” that emerge from this process. Somewhere along the way the potential of the medieval parliament to check and counter the king got transformed by the revolutionary process of modernity into a circular, self-dealing, self-perpetuating and self-aggrandizing institution by which all the specifically modern disciplines and institutions collaborate not so much to govern, as to ensure that what governance will be done will not interfere with this process itself. This is really the only mode of governance consistent with “popular rule,” and the legislature is, of course, the most democratic branch of government, the most “legitimate” because most directly elected by and accountable to the voters—this makes the occasional “accidental” candidate possible (but also irrelevant), but mostly ensures that the control of and investment in election process will be a central concern of all institutions. Like all parasitical entities, this liberal democratic model will presumably not survive its host, but there may be sufficient countertendencies absolutely dependent upon some modicum of reliable governance that are able to operate counter-entropically within these same institutions with sufficient power to stave off collapse indefinitely. I have never seen anyone focus on the modern legislature as the locus of political transformation and disorder, but it’s certainly a promising line of inquiry.

The need for a justice system and a commander-in-chief are anthropologically intelligible, while it’s very hard to say why, exactly, a “legislature” is necessary, other than for contingent historical reasons. Modern legislatures have been designed (always haphazardly, it seems) to accommodate the existence of different factions within the political realm opened up by the otvrthrow or “constitutional” marginalization of the monarch. And they remain dominated by the specter of the monarch, of sovereignty more generally, even long after the last king has been dispatched or where there has never been one in the first place. In speaking of the justice system, we can discuss guilt and innocence, evidence, degrees of responsibility for specific events, etc.; in discussing the executive, the means of dealing with an emergency or the questions of war and peace can be discussed with some ongoing reference to consequential decisions whose effects might be measured; with the legislature, meanwhile, the currency of legitimacy is representing the “will of the people” against some more or less imaginary “tyranny” (i.e., desecrated monarchy gone bad). All the vaunted virtues of the liberal democratic order—its supposed openness, pluralism resistance to “totalitarianism,” etc.—reside in this oscillation of factions within the legislature—here is where the executive and judicial branches are opened up to the media. The difference within the factions concerns nothing more than the pace, intensity and target of periodic sacrificial rituals against the “tyrant.” Even straightforward gifts to members of the community, like welfare systems, aim at building anti-tyranny constituencies and, indeed, defining tyranny as that will take away from the people what is theirs by right. It is through the legislature that the thread connecting the central bank and the intelligence agencies runs, and it is here that the struggles over which debts will be enforced and which lightened or forgiven take place, There are plenty of things a community needs a juridical order and executive for, but there’s nothing essential that couldn’t be managed without a legislature.

It may be that the best outcome for legislative institutions would be to reduce them to the condition Carl Schmitt derided them for being: “talking shops.” That bothered Schmitt because the talking was an obstacle to making needed decisions, but if the decisions could circumvent the legislature why not let them talk? Of course, we could say that decisions already circumvent the legislature, as everyone knows that legislators not only don’t write the “laws” they pass but don’t even read them—they are composed by “public interest” organizations funded by private interests and staffed by people going through the various revolving doors between bureaucracies, NGOs, think tanks, activist groups, etc. But this entire process is itself an outgrowth of the legislature, and would never have come into existence in a corporate order topped by an executive and regulated by a judiciary—“laws” become increasingly complicated because they have to account for the complexities of institutions created by existing laws and the contortions they have forced all institutions, public and private, into. If “genuine” right wing figures (by which I mean, not those who see the tyrant as Stalin rather than Hitler, but those who want an operational center) are to compete for positions in the legislature, maybe it’s best that they work to turn it into spectacle, creating scandals, making vitriolic (but engrossing) speeches, staging confrontations within the chamber and lots of “cameo” appearances at public events for maximal attention. Be interesting and entertaining, make everything other than the figure at the center ridiculous. Ask for peoples’ votes just so you can speak for as many of them as possible—read letters from ‘forgotten” constituents into the Congressional Record. Hire a good polling agency and vote on every measure in accord with the majority in your district, thereby making people happy, exposing the agendas of the parties, while also displaying the incoherence of democracy. Draw others into your endless talk, your live-streamed perpetual satire—insult other representatives, get sanctioned, please the tabloids, put on a great show, In the US, at least, this can be attempted against the will of the party—emphasize your powerlessness, be bombastically unthreatening, and make the “establishment’s” reaction to you part of the show, Maybe that will encourage other institutions to gravitate toward the executive and judiciary, and help them contain and eventually ignore the legislature (maybe one day the congress will regularly vote for gazillion dollar budgets which the president will routinely ignore while spending money on policies aimed at securing succession.)

All our talk of demographics probably proceeds from the legislative as well, as all the struggles over districting, concerns regarding the counting of various groups and therefore attributions of specific interests to those groups, which then means much effort in studying and appealing to said groups must be invested. But let me point to another potential culprit here, modern philosophy, with its insistence on the liberated, rational, “self-legislating” individual who can serve as a support for the modern republic. We must all give the law to ourselves is the starting point of modern philosophy, and why should this be any less true for the society as a whole than the individual? The assumption that an elected legislature, backed by nothing but the will of the people, can set aside all traditions, mediating institutions, current practices and existing authorities, and “pass laws” is an especially pernicious modern one that follows from the concept of the self-constituting, self-legislating subject. All judges, and not just the Supreme Court, should be empowered and educated to ask of any law not whether. It’s “constitutional” (another made-up “law”) but whether it’s a law, that is, whether it designates actually existing plaintiffs, defendants and victims within the existing nomos or division of roles and property or turns the state itself into the persecuting agent. Genuine laws can change through new distributions and divisions, but only through the working out of decrees and novel cases which must analogized to precedents. This would require not so much ‘critiquing” (that quintessential move of desecration) modern philosophy as. replacing it with anthropology, or anthropomorphics, or maybe “humanology.” Testing the hypothesis that much modern vocabulary across the disciplines presupposes the “legislative” function and therefore branch of government might be a worthy intellectual endeavor; at the very least, it’s something to keep in mind and see what it yields when applied.

How much confusion has been caused and how much damage to literacy done by attempts to figure out the “real meaning” of a statute, and how? By tracing it back to the “original intention” of the legislators? By using the social sciences to find its “objective” meaning? And how much destruction has been visited on the social sciences by attempts to explore the differences between how legislation was supposed to work and how it really worked? Indeed, our whole way of talking about politics in terms of “issues,” regarding which we can imagine a law being passed, which law we can be for or against, reflects the domination of the legislative over politics. A judge presiding over a case has a history of precedents that can be traced back to a conquest and nomic distribution, two sides, each with a narrative, each with certain evidence or a pattern of facts on their side, and a refined understanding of historically shifting threshold at which violence and fraud, if left to operate on its own, would supplant the juridical with the vendetta. This is not exactly science, but it is a kind of art, and it is representable, can be turned into a “case” to be examined, studied, re-enacted, miniaturized and portrayed from varying angles. Intentions are posited as far as they need to be—could the confrontation have been avoided or was someone looking for trouble?—rather than as magical text producers that we can follow deep into the entrails of the author. Maybe serious failures of literary analysis have resulted from this way of looking at “intention,” rather than along more institutional and historical lines, which begins with the question of what kind of intentions must the institution presuppose in its own operations. It would be good to learn ways of speaking and writing that deny all seriousness and legitimacy to the legislative, and to uproot the habits of mind that make sense as contributors to framing, enforcing and interpreting “legislation.” Maybe the collapsing of such institutions and habits of thought can play a significant role in learning to think in terms of succession.