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Symposium: Anti-Nietzsche3

kenta tsuda

AN EMPTY COMMUNITY?

alcolm bull has written an engaging and refreshing


book, ostensibly addressing the work of Nietzsche, but
in reality doing much more: using an inverted reading
of Nietzsche to shed light on connections and unrealized
possibilities in the history of European political thought. In the final
chapter of Anti-Nietzsche, Bull applies his negative reading to politics
in the terms narrower sense, specifically by endorsing aspects of the
Nietzschean understanding of political equality. Theorists of liberal
egalitarianism and bourgeois private law claimed to rest their thinking
on this doctrine; but Bull, following Nietzsche, points out how limited
their understanding actually was. To found politics on the premise that
all human beings are equal is to commit to a limitless process of levelling, he writes; the egalitarian ideals of the French Revolution would have
required elimination of all substantive social advantages, generating
equality beyond the merely formal conferral of rights achieved during
the anti-aristocratic campaigns of the Jacobins and codification under
Napoleon.1 In fact, where even a revolutionary like Babeuf clung to the
position of equal shares for all, Bull follows Marx in embracing negative community, a regime in which each individual, without exclusion
or exception, will have equal access to property, but no property rights,
either individual or collective, because property, as such, will not exist.2
Bull celebrates Nietzsches conceptual grasp of egalitarianism, but inverts
the sense of the Nietzschean critique. Where Nietzsche unequivocally
rejected a fundamental and universal equality of human beings, Bull
declares himself a fully self-conscious leveller and preacher of equality.
And his egalitarianism is not merely an ethical position, encouraging
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private charitable dispensations to the needful. For Bull as for Babeuf,


any inequality necessarily entails a crimean injustice that the political
collectivity must expunge. A politics of equality must universalize itself,
seeking a shared deprivation for all. That is, to be a fully self-conscious
egalitarian is to be a negative communitarian, who, turning Nietzsches
words of warning into a positive commitment, makes revolutions and
will continue to make them.3
Bulls discussion of political equality, with its reasoning by way of
Nietzsche, allows a very clear delineation of the contrast between the
equality of permanent revolution and that embedded in a system of
private rights and the liberal state that realizes it. Indeed, he claims that
the difference is fundamentally one of kind, and not merely of degree.
However, at two points he seems to mischaracterize the conceptual borders that separate his negative communitarianism from existing liberal
political theory. First, he defines his position against theories of distributive justice in general, overriding the thought that negative community
might best be treated as one variant of that general category. Second, he
claims that negative communitarianism is not a theory of rightseven
though, however greatly it may differ in substantive terms from other
such theories, it shares their conceptual structure. These moves repay
close attention, leading to importantand unresolvedissues in Bulls
negative communitarianism.

Extra-egalitarianism as rights theory


Unlike Marx, Bull does not postpone the realization of negative community to a period of post-revolutionary superabundance; and prior to
the days of Edenic bounty, society necessarily confronts the economic
question: what individual claims to goods will society recognize and
enforce? Negative communitarianism directly answers this question:
See, for example, Laurent Ayns, Property Law, in George Bermann and Etienne
Picard, eds, Introduction to French Law, Frederick, md 2008, pp. 1478. (The most
important break in the history of property law was the French Revolution, leading
to Napoleons Civil Code . . . Portalis describes individual property as the universal soul of all legislation. This vision culminated in the definition of property in
Article 544 of the French Civil Code: Property is the right to enjoy and dispose of
things in the most absolute way, as long as the use made of it is not prohibited by
law or regulation.)
2
Malcolm Bull, Anti-Nietzsche, London and New York 2011 (hereafter an), p. 157.
3
an, pp. 1556.
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society will enable each individual to access goods when and as they
are needed.4 Bulls doctrine proposes a standard by which transactions
will be deemed just or unjust, and then, presumably, enforced or prohibited by some institutionif not by a state, then by the spontaneous
acts of citizen-vigilantes. This theory is at root an account of how individuals can make claims, and of the duties of others to recognize these
claims: negative community and permanent revolution offer to the unequal (unproductive individuals, undeveloped classes and peoples alike)
access to that on which they might otherwise have no claim.5 In Bulls
negative community, under pervasive, collectively enforced norms, all
members of society observe the duty to honour claims by the needful in
their moments of apprehension and consumption of a good. Thus, the
theory is centrally concerned with distributive justice.
It seems strange that Bull should oppose his theory to that of distributive
justice in general.6 It is not, as Bull claims, the absence of exclusivity
that distinguishes his theory from more conventional egalitarian theories of distributive justice.7 As philosophers have pointed out, the very
act of negating a good by consumption necessarily involves making an
exclusive claim on it.8 For example, even if a foodstuff can be divided to
accommodate the caloric needs of several people, each consumed portion will have been rendered exclusively the use-thing of its consumer
once it has been chewed, digested and excreted. Use negates it as a foodstuff, and thus as a good to be shared, claimed or used. Use is exclusive,
and insofar as use is sanctioned under a shared system of normsas
one would expect to be the case in any communitythe consumers
collectively sanctioned use is necessarily an exclusive claim made upon
Bull does not specify whether the use of goods over and above the threshold of
need will be prevented, remain tolerated but unprotected by societal guarantee,
or remain protected but by a guarantee weaker than that provided in existing
property regimes.
5
an, p. 159 (emphasis added).
6
If everyone can just take what they need, the ideal of egalitarian inclusiveness is
extended to the point where it dissolves the concept of property, and with it the possibility of equality, or any form of distributive justice. an, p. 159.
7
an, p. 157.
8
G. W. F. Hegel, Hegels Philosophy of Right, trans. T. M. Knox, London 1967,
5962. In the Remark to 62 Hegel uses the example of feudal tenure in which
title and use-rights are vested in different persons, finding such an arrangement
fundamentally irrational, going so far as to describe it as generating an insanity of
[legal] personality.
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a good. Rather than saying that negative community sanctions no exclusive claims on goods, Bull more correctly could have stated that unlike
in other regimes of distributive justicefor example, regimes of bourgeois private lawexclusive claims on goods are sanctioned only when
effected by the act of negating the good in needful consumption.
The existence of such exclusive claims contradicts Bulls statement that
negative community acknowledges equal access to property but no
property rights . . . because property as such will not exist.9 There is a
prima facie contradiction in this pronouncement: how can there be equal
access to property when property as such does not exist? The statement
turns on the contrast of property and property as such, the former
referring to goods that an active and social human being apprehends,
uses or consumes, the latter referring to the institution that enforces
exclusionary claims of an individual to the ownership of a good, under
the aegis of which individuals in bourgeois societies appropriate, use or
consume, and alienate their goods. With the abolition of the institution
of property, Bull seems to imply, individuals will be universally unable
to appropriate goods. The negative community will recognize no proprietary claim to use or exclude others from a good on the basis of anything
other than need.
But while negative community is vastly different from the property
regimes with which we might be familiar, it is a property regime nonetheless. The banishment of property rights and property as such from
the negative community is conceptually suspect. According to the canonical theorization of legal conceptual categories, where one individual is
encumbered with a duty to observe the claim of a second, the seconds
claim is by definition a claim of right: the second is said to bear a right
correlative to the duty on the first.10 Bulls doctrine of equal access or
each according to need differs radically from the classical doctrines of
property rightwhether in common law in England and America, or as
developed in the post-Enlightenment codes in continental Europein
9

an, p. 157.

Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial


Reasoning and Other Legal Essays, New Haven 1919. On the seminal and foundational status of Hohfelds conceptual analysis in Fundamental Legal Conceptions,
see Joseph W. Singer, The Legal Rights Debate in Analytical Jurisprudence from
Bentham to Hohfeld, Wisconsin Law Review, 6, 1982, pp. 9849.
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the way it locates rightful claims and duties. But for all his resistance to
the label, it is a theory of rights, and insofar as it concerns claims to the
use of inanimate goods, like land and chattels, it is an alternative theory
of property rights.

What is need?
Negative communitarianism should perhaps be understood as an
attempt dialectically to overcome the inadequacy of formal rights: rather
than embracing their antithesis11the substantively equal shares of
BabeufBull synthesizes the two in a higher-order formal provision,
such that it is an equal right to the satisfaction of need that serves as the
unit of commensurability and, ultimately, founds the complete equality
obtaining among the citizens of the negative community.
While conceptual formality is certainly no vice, the category of need
requires further interrogation. Suppose that by a twist of fate and history, the philosopher were to become king and, after arduous political
struggle, Bull were to establish negative community. Disputants and
functionaries in the Bullian courts would initially thank the philosopherking for drastically simplifying the adjudication of disputes over goods:
every disagreement would call for a doctrinally identical determination of
which of two parties needed the good. And where need was equal, usually
cases would be easily resolved by dividing the good in question.
The Bullian courts would have their hard cases too, however. For example, they might occasionally preside over disputes in which the good
is exclusive and indivisible, where division would qualitatively change
the good, rendering it no longer needed by either of the litigantsthe
proverbial splitting of the baby. Since negative communitarians prioritize equality foremost, and have no inhibitions about Pareto-inferior
Bull describes the regime of private property as articulated by Pufendorf as
realizing a form of equality in which individuals will have whatever they have
in equal shares to the exclusion of every other proprietor (an, p. 157). He thus
seems to locate the equality inherent in the bourgeois property regimeof which
Pufendorf was an early heraldin its allocations of equal shares. On the contrary,
this regimes equality is purely formal, and made without reference to substantive
allocations of goods; under liberal property regimes equality is located only in the
formal equality of every proprietary relation between an individual and the goods
over which he has a claim, regardless of the magnitude of these shares.
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outcomes,12 even where opposing needs are equal, a splitting the baby
situation would be easily solvedthe good in question would be negated
(destroyed or changed qualitatively into another good) so that equal
needs are realized equally (that is, not at all).
But what of a situation in which the litigants very conceptions of
need are qualitatively different? In his fuller essay treatment of extraegalitarianism in these pages, Bull inadvertently gestures at just such a
situation. Invoking and criticizing a thought experiment by the philosopher Jonathan Wolff, he imagines
a small town in a southern state in the United States. Your town has one
swimming pool and no funds to build another one. The state legislature
passes a law on the racial segregation of swimming pools. You are opposed
to racial segregation, so you close the town pool.13

The situation, for both Wolff and Bull, is one of a desirable privative
outcome.14 However, Wolff reflects on the possibility of viewing the pool
story at the same time as involving distributions of multiple goods
each presumably satisfying different needsfor example, pool use and
social solidarity.15 Such a case poses a serious problem for Bulls negative
communitarianism: the theory faces a second-order question of how to
rank the needs themselves.
The problem of ranking needs can be better considered by modifying
the hypothetical. Wolffs exemplary case, with an enlightened-reformer
mayor negating an exclusionary state of affairs, is a neat instance of
extra-egalitarian levelling down. But we might also invoke a structurally similar situation from the history of the us state of Virginia in
the 1960s, the Stanley Plan designed to resist the federally imposed
More precisely, Bull and Jonathan Wolff advocate a strong version of Paretoinferiority: a Pareto-inferior change refers to any change in which at least one
player experiences a fall in utility; the changes in the southern town and Stanley
Plan examples which follow are ones in which not only does at least one player
experience a fall in utility, but also no player experiences an increase in utility.
13
Malcolm Bull, Levelling Out, nlr 70, JulyAug 2011, p. 14.
14
Bull argues that Wolff is correct to consider this a situation of desirable levelling
down. However, he adds that in limiting the example to a situation in which the
extent of the levelling is narrowly circumscribed, Wolff avoids confronting the possibility of levelling out.
15
Jonathan Wolff, Levelling Down, in Keith Dowding, James Hughes and Helen
Margetts, eds, Challenges to Democracy, Basingstoke 2001, pp. 267.
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racial integration schedules by closing the public schools rather than


implementing reforms.16 The closures could be said to have maintained
the segregationist majoritys enjoyment of Dixie tradition, but reduced
the net distribution of public education.
Like Wolffs hypothetical, the Stanley Plan closures involved Paretoinferior levelling down, but one imagines that Bull would not have
found them desirable. Negative communitarianism cannot explain why
not. Just as Wolffs enlightened mayor has to rank the entirely different goods being simultaneously distributed in his pool transaction, a
Bullian adjudicator presiding over disputants citing wholly different
needs would have to evaluate these needs relatively. The adjudicator
might have to consider the extent to which the good in dispute would
truly contribute to the needs cited: a rich mans claim that he could not
live without his pet rabbit would fare poorly against a starving mans
claim to the rabbit as a life-sustaining foodstuff. But the adjudicator
would face a much trickier problem of rank ordering the proposed ends
for which the goods were needed in the first place. After all, each need
is logically dependent upon the state for which an entity or endowment
is neededfor lack of a better term, a need-specifying telos. To say
one needs X is merely shorthand for the complete statement that one
needs X in order to Y. To take an example, consider the concept of
need in Marxs works. Reference to need runs throughout, including in
Capital, where it is conceptually central to the critique.17 Here Marx distinguishes at least three different categories of needs, each defined by
the telos to which it refers: an individuals natural needs, or the means
of biotic survival; social needs, or the means to an existence that is fulfilled in some ethical sense; and economic needs, the means required
for the individual to serve the logic of capital.
The contrast of telic ends in the examples of the swimming pool and
Stanley Plansocial solidarity versus Dixie apartheidis useful for purposes of demonstration. It is highly schematic, however, and the Bullian
court would face far more difficult cases of prioritization, which the
substantively empty concept of equality cannot address. To invoke the
Nietzschean theme, for example, how would Bull prioritize a physically
A later local version of this plan was the subject of a famous 1964 case at the
United States Supreme Court, Griffin v. County School Board of Prince Edward County.
17
See Agnes Heller, The Theory of Need in Marx, London 1974, pp. 2340.
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weaker litigants demand for the forced labour of a stronger citizen?


Here the court would have to weigh the relative importance of, say, the
need for bodily autonomy against the need for biotic heath. Bull provides
the negative communitarian no criterion by which to rank such needs
or the telic ends to which they make reference. Without a substantively
fuller account of something like the good life, the Bullian court must
either remain silent or impose an arbitrary judgment based on something other than his extra-egalitarian theory.
Bull recognizes that the concept of equality logically requires a category in terms of which the equal shares are to be commensurable.
An equality defined without any such referential category is meaningless, and will only be adopted as the basis of political arrangements
by irrationalists and mystics.18 Negative communitarianism defines its
equal shares formally in reference to need. Far from a nihilist irrationalism or mysticism of pure equality, this is a novel form of a rights
theory of distributive justice. However, the concept of need is similarly
meaningless unless defined in reference to another category. Avoiding
the commensurability problem in his formalist definition of equality, Bull has merely displaced it to the category of need. The result
is that the account of negative community is left open-ended. Without
an account of the good life, or the collective ends of the community, or
some other ends to which negative community would be subordinated,
the concept of need remains substantively empty, and the theory lacks
coherent integrity. I hope that in a future project Bull will make good
this omission and in this way add the capstone to his engaging theory
of distributive justice.

18

Hegels Philosophy of Right, 5 Remark.