A Civil « Cold War »?
Kindly translated by Anne-Marie de Grazia.
The latest adventures, not to say the antics, of François Hollande have tended to hide for a while the earnestness of the country’s situation at the beginning of the New Year. Granted, our helmeted President riding in the dark of night to the bed of his blonde replays, on a derisory and somewhat pathetic mode, the great myths of Antiquity. The fact that this bed was located in the apartment of someone connected with the Corsican “Sea Breeze” mafia gang adds the necessary touch of the sordid to the parody. This is by no means important; yet something important is going on indeed.
One may ask if, in France, we are not living with the forerunners of a civil war. This apparently absurd question is worth asking in view of the events of recent years. In a note of fall 2012, I had evoked the possibility of a crisis of the legitimacy of power. That’s the point at which we have now arrived. There is a strong risk that the year 2014 will be marked by an accumulation of social movements, the convergence of which would directly challenge the power in place. Now, a crisis of legitimacy is peculiar in that it brings up the question, not so much of the policies being implemented, which one may like or dislike according to one’s opinions, but whether the power in place is habilitated to follow such policies. Which is why we must expect that such a challenge might take a violent turn in the coming year. In fact, the exercise of power, Potestas, is dependent on the legitimacy which is conferred upon it by Auctoritas. Such notions, which have come up habitually in the writings of jurists of Christian inspiration, are yet not necessarily limited to this sphere. One can well understand, even on an intuitive level, the necessity to separate the capacity to exercise political power from the legitimacy, or correctness, there is in exercising it. So that there is no necessity to be a Christian, or even to believe in God, in order to perceive the pertinence of a distinction between Auctoritas and Potestas. This question is usually ignored, because no one contests the legitimacy of power, especially of such power that is born from institutions which are theoretically democratic. But one is compelled to recognize that the opposition to the power in place, whether it comes from the right or from the left, has become less an opposition to what this power is doing than an opposition to its very capacity of doing.
Political violence, daughter of illegitimacy
French political life has indeed been characterized in these past years by an undeniable rise in the level of confrontations, be they verbal, symbolic, or sometimes even physical. We are going through what appears like the premises of a “cold” civil war, which threatens to heat up at any time. The former President, Nicolas Sarkozy, experienced it during his mandate, particularly beginning in 2009-2010. He became the target of attacks the hateful character of which is without doubt, and which came – this fact is noteworthy – as much from the left, which would have been understandable, as from the right. These attacks have been blamed on the “style” imposed by this President, whose sideslips and excesses were indeed numerous, and who tended to endorse all action, and therefore bring all discontent upon his person alone. It was not without reason that he was described as a “hyper-President,” throwing back – in disregard of the constitution – his Prime Minister into the shadow. Yet, the election of his successor, François Hollande, who presented himself as a “normal” President, has changed nothing to the situation. One may well wonder about this modifier « normal » applied to « President. » The presidential function is anything but “normal.” That the man’s style strives at modesty is plausible, especially after the outrageous excesses, Fouquet’s and Rolexes, of his predecessor. But we must acknowledge that it did not help. Opinion, who was never under the spell of this man who, as soon as he was elected, was not even given the benefit of a honeymoon, rapidly turned away from him. Here he is now in the doldrums of opinion polls, exposed to opprobrium without having ever been worshipped. Anything is becoming a pretext, for good or bad reasons, to reproach and criticize him. He sees now his very ability of governing questioned by some. Just like his predecessor, he has become the focus of devastating criticism, sometimes even from his own political camp, and going way beyond his own person. Social movements, natural in a country and in a society which are divided by nature, are taking here an increasingly violent and radicalized dimension. After the “dems for all,” here are the « red caps. » « bonnets rouges ».
It has been said, and it is not wrong, that the presence of the crisis, the most significant that capitalism has known since the 1930s, could explain the tension. But, even if this crisis is exemplary, the country has lived through others since the 1980s. One would have to go back to the end of the 1950s and to the Algerian War to find a similar state of tension. But one remembers, too, that the IV. Republic had then become to a large extent illegitimate. In the same vein, one often hears the explanation that the Internet has become an ambiguous place, astride between the private and the public spheres, particularly prone to furthering a discourse which had been otherwise, and before, repressed. This explanation, even if it contains a grain of truth, does not hold in regard to the French crisis. Indeed, the effects of the Internet are the same in all developed countries. However, from the standpoint of political violence, remaining still essentially symbolic, but which one senses could develop into real violence, there is indeed a difference between France and its neighbors. So that one must go searching higher up for the sources of such a radicalisation and, most importantly, one must realize that, beyond the man (or the men) – however laughable or hateful they may appear – it touches onto the function and onto the political system in its entirety. We are truly going through a crisis of legitimacy.
This crisis is becoming manifest in the fact that one no longer contests the policies which are being implemented, as is normal in a democracy, but the very exercise of these policies, whether conducted by the UMP or by the Socialist Party. Forthwith the distinction between “the power” and the “real country,” which is factitious most of the time, is becoming a reality. Such an opposition brings one back to the opposition between “they” and “us” (Oni and Nachi) which held sway in Soviet regimes when the system started to grind to a halt. Anybody who has worked on the last years of the Soviet system, whether in the USSR or in the European countries, must be responsive to such a comparison. There, the loss of legitimacy was linked to a combination of economic problems (« stagnation ») and political ones, the origins of which lay in the crushing of Soviet reformism at Prague in August of 1968.
In France, this loss of legitimacy of the political system and of the power system, the effects of which we see playing out under our eyes in an ever more disastrous manner, has a cause and a name: the 2005 referendum on the project of a European Constitution. Referendums on Europe have always been strong moments. Unlike the referendum on the Treaty of Maastricht, where the « yes » had won by a short head, the « no » won a large majority in 2005, with 55% of the votes. Yet, this vote was promptly flouted at the occasion of the Treaty of Lisbon, signed in December 2007 and ratified by the Congress (a reunion of the National Assembly and the Senate) in February 2008. From this denial of democracy, which marks the symbolic opening of the presidency of Nicolas Sarkozy, dates the beginning of a political drift of which we have now come to notice the full effects. The so-called “appeased” democracy, of which Jacques Chirac and Lionel Jospin wanted to be the heralds, is dead. We have entered, whether we are conscious of it or not, into a “cold” civil war.
Sovereignty, legitimacy and legality
This denial of democracy has reactivated a fundamental debate: the one focusing on the constant infringements on the sovereignty of the Nation, and through it, on the reality of the State. Such encroachments do not go back merely to 2005 or 2007; they have started right away with the Treaty of Maastricht. But the denial of democracy which followed the 2005 referendum has rendered the French population more sensitive to the issues. This is due to the peculiar political history of our country. The construction of France as a Nation-State is a process going back all the way to the early XIII. Century, and even earlier. One can take as the founding moment the Battle of Bouvines (27 July 1214) which sealed the triumph of a king « emperor in his own kingdom » in the face of his enemies, the three most powerful princes of Europe (Otto IV of Brunswick, King John Lackland and Ferrand of Portugal). French political culture has integrated this fact, and identifies the people with the State. More precisely, the historical process of the construction of the sovereignty of the French Nation has been nothing else but the opposite face of the construction of the political (as against ethnic or religious) community which is the French people.1 In this regard, one must understand also the necessity for a National History, founding legitimacy for all countries, and the slipping, even the « betrayal » of this history into a national romance. Depending on the case, and on the authors, this « romance, » which always more or less betrays history, can take the shape of an outright lie (because of liberties taken deliberately or through ignorance with historical reality). But this lie is a necessity and sometimes even a salvation in that it constructs myths which are themselves necessary to the functioning of the political community. Every political community needs myths, and the nature of the latter informs us about the nature of the community.
Sovereignty is indispensable to the constitution of legitimacy, and the latter is necessary so that legality does not turn itself into a veil of law concealing oppression. From this point of view, there exists a fundamental discrepancy between the vision generated by the European institutions of a self-defining legality, without a reference to legitimacy, and the traditional view, which makes legality the daughter of legitimacy. Such a view of European institutions leads to the neutralisation of the question of sovereignty. The mechanism is understandable. If the legal can name itself “just” on its own behalf, without the need for an instance capable of producing the “right” preceding the legal, then one can get rid of sovereignty 2. But, unless one proclaims the legislator to be omniscient and perfectly informed, how can one pretend that the law will always be « just » and adequate? This is, by the way, in strict symmetry with neoclassical economic thought who needs, in order to function and to produce neo-liberalism, the double hypothesis of omniscience and perfect information3. The temptation to negate, if not sovereignty, at least the possibility of its exercise is a point constantly thrown up by jurists of the European Union. But it produces devastating effects in the case of France.
The question of identity
As it happens, putting French sovereignty into question takes on the dimension of a deep identity crisis, but one remaining largely implicit, for the majority of the French. In this crisis, the actions of « identitarian » groupuscules are only the foam on the top of the wave. Radicalisation, whether religious or racist, which can be attributed to them, remains confined to a small minority. The French are no more racist (in fact, rather less so…) than their neighbors, and we remain as a people quite foreign to the religious sectarian drifts occurring, for instance, in the United States.
But the feeling of being attacked in the political identity which makes us into « Frenchmen » has become a widely shared sentiment. The loss of legitimacy of those wielding power, be they from the right or from the left, can be read as a direct effect of the weakening of the state, deriving from the loss of part of its sovereignty. Not that illegitimacy is always linked to a loss of sovereignty. Sovereign powers can turn out to be illegitimate. But because a power which has lost its sovereignty is always illegitimate. However, legitimacy commands legality. One can see precisely here up the blind alley of legalism as a doctrine. For all measure taken within the framework of laws and decrees to be considered as “just” a priori, one would have to suppose that the legislators are altogether perfect (that they are incapable of errors) and omniscient (that they have a perfect knowledge of the future). One can immediately measure the impossibility of such hypotheses.
Yet, considering the « just » to be the foundation of the « legal » requires that this « legal » cannot define itself self-referentially. Such was, by the way, the judgement of the Constitutional Court of Germany, which has been very clear in its judgement of June 30, 2009. arrêt du 30 juin 2009. In this latter, taking act of the inexistence of a « European people, » the court determined that national law takes precedence, in the final instance, over community law in budgetary matters. It is important to understand that, for the court in Karlsruhe, the European Union remains an international organisation of a derived order, for the States remain the masters of the treaties4, as they alone have a real democratic foundation. However, States are presently, and for a long time to come, Nation-States. It’s the sovereignty acquired by them which gives them the power to “spell the just.” Of course, a sovereign state can be “unjust,” or in other terms, illegitimate. But a State which would no longer be fully sovereign cannot produce the “just.” From this point of view, sovereignty funds legitimacy, even if the latter does not reduce itself to it.
This makes us understand why we will have to come back to these three notions of Sovereignty, Legitimacy and Legality, both as regards their consequences on society as their hierarchy. These three notions allow us to think a Democratic Order, which opposes itself both to the centralized order of authoritarian societies, and to the spontaneous order of the market society. There can occur a hybridisation between the two orders, when a planned order intervenes to organize in a coercive and non-democratic manner the framework in which the spontaneous order will then come to play. This is actually quite often the case in the construction of the European Union, the legality of which is increasingly self-referential. The notion of a Democratic Order weighing on the hierarchy of Sovereignty, Legitimacy and Legality results is a deep and radical critique of European Institutions. But the problem does not end here. Indeed, we must also think about these three notions outside of all transcendence and of all religious aporia, for French society, like all modern societies, is heterogeneous from the standpoint of religious beliefs and of values. Which is why the Res Publica is deeply linked to the idea of secularism, understood not as a persecution of the religious fact, but as a confining of the latter to the private sphere. And this allows us to put back in its place the debate on secularism. It also means that the separation between the private sphere and the public sphere must be perceived as constitutive of democracy, and points out all the dangers that exist in trying to make this distinction disappear. But, because he has denied the principles of the latter, and is actually living in a post-democratic ideology, our President is surely the last person to be entitled to take offence.
- One will refer oneself here to the book Claude Gauvart, Histoire Personnelle de la France – Volume 2 Le temps des Capétiens, PUF, Paris, 2013. [↩]
- Maccormick, Neil, Questioning Sovereignty, Oxford, Oxford University Press, 1999 [↩]
- Sapir, Jacques, Les trous noirs de la science économique, Paris, Albin Michel, 2000. [↩]
- M-L Basilien-Gainche, L’Allemagne et l’Europe. Remarques sur la décision de la Cour Constitutionnelle fédérale relative au Traité de Lisbonne, CERI-CNRS, novembre 2009, http://www.sciencespo.fr/ceri/sites/sciencespo.fr.ceri/files/art_mbg.pdf [↩]