The particular historical juncture in which we find ourselves raises more than obvious concerns with regards to the status of our polities. To be sure, things were never neat and clean, as most things are within the capitalist horizon. Ominous signs of the looming catastrophe were already out in the open for a long time, at least ever since the fateful 9/11 or the 2008 Wall Street stock market crash. The archive of this blog can easily attest for these worrying trends. It was up to the attentive observer to follow and to reflect on the historical unfolding of the state of exception and of the crisis of the capital. The conjunction between the two is crucial. On one hand the machinery of the exception sapped the symbolic structures of the legal community that were sustaining the liberal regime of legality, while the destructive waves of debt and dispossession were doing the ‘real’, dirty work by dissolving the material safety nets on which the post-Cold war utopia still rested in the global North.
It was all happening right before our eyes, while we were clinging to believing that the process could be either reversed or slowed down, and desperately projecting hopes in what seemed like promises for a halt: Syriza, the Newest Labour, Senator Sanders. Now the rise of the right is a fact: from Putin’s Russia to Trump’s America, all the way through Erdoğan’s Turkey, Temer’s Brazil, Orbán’s Hungary, Kaczyński’s Poland or post-June Britain, there is an undeniable surge – of still various degrees – in expedient legal and administrative measures, racist and xenophobic attitudes, and nationalist, if not ultranationalist stands. We should have seen this coming, but there were always mechanisms of self-delusion and panacea already in place: after all Russia had a long history of flirting with despotism, the ‘new’ Europe was simply that, a ‘new’ Europe made up of dysfunctional democracies just emerging from the totalitarian past. And Erdoğan was useful to many purposes. The problem started only when the self-styled consolidated democracies come to reveal their connivance with this unavowable Other nested at their core and arguably dormant for years. With it, a new line of defences, illusions and negations emerged complicating further the picture of the present and diverting the political compass towards wild chases. This is a time of openings, we are told, and the surge of the right is just an opportunity to be seized by emancipatory forces, thus refusing the blackmail of the lesser evil. From the confident Lexiters to Slavoj Žižek, the consensus of the most progressive, albeit less conscious, parts of the Left was to refuse the blackmail, with the fingers crossed and a hope for the best. ‘On s’engage et puis … on voit’. Repeating Lenin and his heroic bargain, recuperating the authentic exceptional nature of the political act and insisting on the disruptive force of the event was the thing for the accelerationists of this year’s summer and fall. As one could still read in the blogosphere, we are witnessing the deepening of the contradictions of capitalism. And again Žižek quoting Mao: ‘There is great chaos under heaven – the situation is excellent.’ And so on, and so on…
We might have seen this before, with the largely uninspired dogma of social fascism uttered in the mid-1920s, and pushing the communist sectarianism a step further with all the known consequences. But, we are told, this time by respectable historians not particularly interested in the Facebook and Twitter squabbles of the Left, that one should be wary of historical parallels. The 1920s and the 1930s are historically consummated experiences, which can be safely kept in the museum of horrors of the past in order to be carefully examined by trained and skilled taxonomists. This thread of historical ‘egyptianism’ keen in looking at the past as past, and in keeping things safe and clear in their respective definitional spheres, also warns us that fascism is a term to be used parsimoniously. So parsimoniously that one could only uncontroversially employ it as a signifier for a particular period of Mussolini’s rule in Italy. Of course, these two matters are not necessarily related. The leftist exhilaration at the unfolding of the dialectics and the historian’s prohibition from using the past in order to read the future respond to different grammars and rationales. On one side there is a proof of the possibility of change within the framework of a mechanism of repetition that we grew tired and suspicious of calling democracy, while on the other there is a need of keeping at bay ‘the heavy, exceptional materiality’ of discourse production. There is a moment of truth in both, in so far that we are witnessing indeed tremendous deepening of the contradictions of the capital, and yes, there are serious historiographical concerns about a loose use of the notion of fascism. But these positions are acting as an important deterrent for an authentic engagement with the historical meaning of our both past and present.
‘The tradition of the oppressed’ teaches us that there is more than a mere contingent and fleeting similarity between the regimes of historicity opened by the interwar experience and the ‘now’ of our situation. Putting things into an actual historical materialist perspective, one that necessarily takes into account the ways in which the past participates in the construction of the present would be able to offer some useful guidance on the deeper significance underlining the moment we live in. At least it might dispel some ideological traps and relieve us of false hopes. It is in this sense, that looking at the present moment through the lenses of the interwar fascist experience might be able to shed some light on the dangers and pitfalls before us. Now, what historical fascism is able to reveal is that despite its later pledges of being a movement of regeneration and national rebirth, attempting to bring about a radically new regime of temporality, of framing new and pure values in contradistinction to the decaying present (does this ring a bell?), is that it was haunted by a reactive ideological stand. To put it simply, the fascism of the 1920s and 1930s was marked by its own original historical trajectory of containing and countering the impeding revolution and keeping at bay the organized working class. While this position might appear as an oversimplification close to that of the 1933 Commintern definition of fascism, it contains an important truth that emerges in most fascists’ memories and propaganda materials reminiscing the formative period of their movements and involving a whole range of repressive actions mostly directed against the working class. This is the case of Italian Fascism, the Nazis, the Hungarian Arrow Cross or the Romanian Iron Guard.
This reactive element becomes all the more apparent if one thinks at the legal frameworks in place of the time of their operation: state of siege, martial law – to put it briefly – state(s) of exception. All these constitutional and semiotic confusions entailed by the suspension of the law through legal means have provided the fascists’ with the understanding of their actions as upholding the law and defending the status quo. This was the essential ambiguity of historical fascism: its impossibility of taking hold meaningfully over the language and practice of revolution. While the historical reasons for this position are certainly important, they thoroughly exceed the scope of this intervention. Essentially they are related to the particular post-WW1 situation and the manifold changes emerging from the collapse of the three Empires, which have ultimately managed to block the revolutionary tides in Central Europe.
What detains me here is one aspect which I found central for grasping our present dynamics, namely the fact that historical fascism was opposed both by a large and important – even if divided– Left movement which had a stronger claim not only to the uses but also to the meaning of the revolution insofar as it defended a radical notion of opposition to the status quo. And there was, of course, the Soviet Union, which despite its demise from a Marxist stand, was still revered as being the country of the revolution. To be sure, there are countless differences between the fascisms of Europe, just as there are countless differences between the local socialist and communist movements of the 1920s and 1930s. Moreover, the fascist movements are anything by linear in their respective trajectories. They have rapidly ascended from being rather crude vigilante groups upholding the law and order against socialist and communist ferment in the immediate aftermath of WW1 to being parties and movements with specific programmes and claims to sovereign power in their own right. However, they remained tainted by this original shortcoming, as at their very core they continued to be nothing else than the product of the marriage between the sword and the courtroom, the usual reaction to social revolution since 1848. Fascism of the interwar was the embodiment of the traditional arsenal of the ruling classes used from the early days of parliamentary democracy. It was the machinery that became autonomous.
However, these insights bring comfort to no one, and they are not intended to. My point is precisely that now we do not have anything even remotely close to the opposition the Left was able to muster. Contemporary fascism, if one is to call it this way, is autonomous from its very beginning. It is not a reaction to any impeding revolution, quite the contrary, it is just a step further in terms of exploitation. It is an opening in so far as it aims to impose and force a new consensus on the new limits of accumulation. This should be somewhat obvious – and it bears a terrible testimony as to the failures of the Left in organising itself. Let us simply recall that the enemy against the alt-right in Europe or US is aiming to fight is the so-called ‘cultural Marxism’, the quasi-academic spectre of the nowadays defunct Marxist tradition. The assault launched doesn’t even try to conceal itself as a mimicry of social revolution, but seeks to determine how to move beyond liberalism and unleash the forces of the capital that are kept captive by regulations of all sorts. Interestingly enough it is with no exception, the case of members of the political and economical elite posing as outsiders who oppose the existing status quo. With virtually no meaningful opposition, and within the fife, drums and applauses of the most progressive forces hailing the fall of the establishment, the fascism of nowadays, is preparing to launch its politico-legal agenda. Beyond the cultural wars that it has started, its avowed goals are a return to the logic of the Nation-state with its related protectionism, tighter immigration controls, policing and swift justice. The full return of the old sovereign power. One should not be fooled about the apparent revolutionary dimension of this move: it is not the unthinkable break with globalisation and exploitation and some return to a romantic industrial past. While fascist movements of today are in a way forward-looking, as they seem to capture something of a dystopian future, they are simply announcing a new dawn of primitive accumulation. To put it simply, the ideological superstructure of the neoliberal state – especially in its legal guise, with all its convoluted arrangements of human rights law provisions and limited, yet existing, employment law regulations – acts too much as a container for the surplus value that can be extracted through more direct means. The time has come to do away with it and muster all the ‘extra-economic forces’ capable of new expropriations. Creating masses of illegal workers by shifting the rules that define the legal status, extending the exception to the extent that whole populations become ‘a communauté inavouable of legal subjects’, of ‘ever-terrorised incumbents of an indefinitely precarious and revocable mere survival’, are some of the core features of this agenda.
These notes aim at least at hinting at one thing: the situation is both desperate and serious. As a matter of theoretical concern, I believe that we need to move from an analysis of the present in terms of ‘crisis’, and take the full measure of the possibility that what we are facing risks to be a major reshuffling of the relations of production. Reflecting on the ways in which fascist ideology, the mechanisms of the exception and primitive accumulation are put at work should become a major concern for both critical lawyers and theorists. It might be the case that even more conscious lawyers outside the critical field would take a sobering look at the ways in which both the professional and intellectual history of law has unwittingly been part of this unfolding, just as the historians’ dealing with the dissolution of the post-fascist consensus was anything but innocent. Politically it means that the Left needs to soon come up with something better than the discourse of “opening spaces for authentic opposition”, which for all that matter was around from the time of the Occupy to no avail, and move from catchy slogans to taking things seriously and building a movement apt of at least proving an understanding of the seriousness of the situation.
Cosmin Sebastian Cercel is Assistant Professor in Law at the University of Nottingham. His research focuses on genealogies of law and politics with specific reference to XXth century continental legal history. He has edited with Rafał Mańko and Adam Sulikowski Questioning the Past, Resisting the Present: Law and Critique in Central Europe recently published by Counterpress. Cosmin is now writing a monograph exploring the jurisprudential aspects raised by state communism soon to be published with Routledge (GlassHouse).
 Giorgio Agamben, State of Exception, trans. K. Attell, Chicago: University of Chicago Press, 2005.
 V.I. Lenin, ‘Our Revolution’, in Lenin’s Collected Works, 2nd English Edition, Volume 33, Moscow: Progress Publishers, 1965 , 480.
 For Badiou, an event is precisely that which ‘ensures that not everything is mathematizable’: Alain Badiou, Court traité d’ontologie transitoire, Paris: Le Seuil, 1998, 57.
 Friedrich Nietzsche, Twilight of the Idols, trans. Richard Polt, Indianapolis: Hackett Publishing, 18.
 Michel Foucault, L’ordre du discours Paris : Gallimard, 1971, 10.
 For a synopsis on this vivid debate within the historiography of fascism occupying an important part of this field for the past forty years see, Roger Griffin, ‘“Consensus? Quel consensus?”: Perspectives pour une meilleure Entente entre les spécialistes francophones et anglophones du fascisme’, Vingtième siècle 108 (2010): 53-69.
 Walter Benjamin, ‘Theses on the Concept of History’, in llluminations, trans. Harry Zohn, ed. Hannah Arendt, New York: Shocken Books, 1969 , 256 (T VIII).
 ‘Fascism is the open, terrorist dictatorship of the most reactionary, most chauvinist and most imperialist elements of finance capital’: ‘Plenum of the Executive Committee of the Comintern: On Fascism, The War Danger and the Tasks of the Communist Parties’ in Jane Degras (ed.), The Communist International: Documents, Vol. 3, London: Routledge, 1971 , 296.
 ‘The silent compulsion of economic relations sets the seal on the domination of the capitalist over the worker. Direct extra-economic force– is still of course used, but only in exceptional cases. In the ordinary run of things, the worker can be
left to the “natural laws of production”’: Karl Marx, Capital, Volume 1, trans. Ben Fowkes (Harmondsworth: Penguin Books, 1976 ), 899 [my emphasis].
 Anton Schütz, ‘Thinking the Law With and Against Luhmann, Legendre, Agamben’, (2000) 11 Law and Critique 107, 123.