Theory of the Brigand

I’ve spent the past few days reading for the upcoming Aspen Institute Wye Faculty Seminar on “Citizenship in the American and Global Polity.” The readings are a grab-bag of sorts, a diverse set covering the philosophical underpinnings of U.S.-American republicanism (small “r”).  I have no idea what to expect from the seminar, but I can say that it’s been a trip (a pleasant trip) to re-read Plato, Aristotle, Hobbes, Rousseau, Tocqueville, Jefferson… and actually understand what they’re saying.

It’s remarkable to me that just about the entirety of philosophical history – and especially the history of political theory – is the attempt to answer the simplest of questions:  Who is a friend and who is an enemy? If friend, then every one is obligated to treat every other as one would oneself (the Golden Rule, of course, but also that which Hobbes equates with jus naturale or “natural right”). If enemy, then one is obligated to defend and dominate through force. Here the term “force” includes both physical force (violence), and invisible, conceptual, moral/ethical force (contract). All of this is so axiomatic that we hardly think of these basic matters at all even in the midst of thinking excessively about them all the time. Certainly I have little to add to the discussion beyond what was said 200 years ago, or 2000.  Except for one observation:  That last clause I mentioned, the “invisible and conceptual” ties entrusting the mistrust between enemies, which we could call “contractual force” for lack of a better term, is the bugbear of all philosophy, the God-particle and dark-matter of all critical thought.

Contracts are not established between friends; since friends should, at least theoretically, treat one another as oneself (i.e., treat one-other as one-self), there would be no need to formalize the exchange of property, goods, rights, etc. as a matter of law. The exchange will always be equal in kind. Contracts are only necessitated by mistrust, and mistrust only exists between enemies. Contractual force is that which impels parties under the contract to affirm the letter of the contract through action; since contracts are, after all, speech-acts, contractual force is that which moves speech-actors to make their speech-acts “felicitous” (and not “infelicitous”) as a matter of habitual action.

The State exists not only to regulate contracts, but to regulate them by means of compulsion: to compel adherence to the terms of the contract both between subjects under the State domestically, and between States internationally. But the power of the State to do so is not derived from contractual force itself. The State only has the power to compel, but contractual force is the power to impel. The State can therefore pass laws that compel subjects to suffer consequences for making contracts infelicitous; the State can compel violence, and by all accounts, the sovereignty of the State is predicated on the legal ability to compel violence. Indeed, a State is said to be a “failed State” when it has been so debilitated that all it can do is demand respect of its authority through compulsive violence. This is a long way of saying “anarchy” or “civil war.” It says nothing, however, of contractual force. And here is the bugbear: the State exists to manage contractual force, it exists but for contractual force, but it has no power to compel felicity or infelicity. The State is a compulsive institution that has no power over the impulses of those it subjects.

This last statement holds true for any State, I suspect, even in a globalized age in which the power of the State is being systematically undermined by commercial interests. As I’ve written elsewhere global commercial interests do not wish to obliterate the State. Quite to the contrary, they wish a strong State in some regards – at least strong enough to compel adherence to contracts and compel proper valuation of currencies. And in every other single matter they seek the total deference of the State with respect to globalized impulses. Globalization, the parasite, needs the State to compel contract law, and then to give free reign to every other impulse of global actors (exone). This parasitism, in turn, produces non-subjectivity of two sorts. The global corporation, for instance, wishes to act as a subject of the State only when this subject-position proves profitable, and then seeks to flee subjectivity and sovereign dominion at all other times. The global corporation is a subject “on-shore” when it feels it is in its interest, and it flees “off-shore” as soon as the mood fits. As a practical example, JP Morgan and Barclay’s demand socialized insurance (“bail outs”) when their bad practices threaten to undo the national economy, when they convince the State that as a matter of national security the global banks must be preserved (i.e., when the infelicity of contractual force threatens to undermine the security of the State’s compulsive force). But JP Morgan and Barclay’s balk any time the State compels adherence to any regulatory law that would limit harmful impulses. In the former case, these global financial actors act as national subjects; in the latter, they act as non-subjects. They act as national subjects when they require State protection of contractual force, and in the U.S. they may even elect Presidents to do so under the tenets of Citizens United; and they go into exile whenever the State compels action they find unpleasant. But within the constant flow between positions of subjectivity and non-subjectivity, let us not forget one thing: that the corporation’s shape-shifting flow from “on-shore” and “off-shore” serves to dispossess most denizens of any given territory of their property, of their right. The dispossessed majority therefore becomes a “no-subject” (introne), a no-subject who could be protected by a State but isn’t.

All of which brings me back to my readings, and Rousseau in particular.  In my reading packet, I came across this nugget of wisdom:

The foreigner, whether king, individual, or people, who robs, kills or detains the subjects, without declaring war on the prince, is not an enemy, but a brigand.

It matters not what Rousseau intended to mean by this, so much as he provides the perfect definition of the “non-subject.” The State ought to protect the rights and property of its subjects, and in warfare it may legitimately kill the (foreign) enemy to do so. But what of mercenaries who are subjects of the State, but nonetheless hire themselves out “off-shore” to “rob, kill, detain the subjects, without declaring war on the prince”? That is, what if we considered a “friend” who contracted himself out an “enemy,” without however there being a declaration of enmity? The lack of the declaration (speech-act!) is vital here. In warfare, the State does not seek to destroy individual foreigners, but rather seeks to protect itself from a foreign State. Without a declaration of war (and let us remember that no one declares war anymore) the State cannot kill the mercenary legitimately, and certainly not as a traitor, because on one hand there is no official enemy to be killed, such that, on the other hand, the State could only kill one of its own subjects, that is, sentence one of its own friends to death. Consequently, there can be no proper sovereign decision in the case of the brigand, neither the decision to let live nor the decision to let die. The mercenary, furthermore, is defined by the contract: A common soldier becomes a brigand once he is hired by a foreign power. The brigand (a non-subject) is a commercial agent who confounds the practice of State sovereignty so that he may dispossess residents living in the State of their right. Through the act of dispossession, any one who might otherwise have been a subject-citizen of the State (and hence protected amicably under it) is transformed into a mere denizen, a no-subject free only to be further dispossessed.

Forget the theory of the partisan. We need a Theory of the Brigand!!

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