IV.

Costumed superheroes ultimately battle criminals in the name of the law—even if they themselves often operate outside a strictly legal framework. But in the modern state, the very status of law is a problem. This is because of a basic logical paradox: no system can generate itself.

Any power capable of creating a system of law cannot itself be bound by them. So law has to come from somewhere else. In the Middle Ages, the solution was simple: the legal order was created, either directly or indirectly, by God. God, as the Old Testament makes abundantly clear, is not bound by laws or even any recognizable system of morality, which only stands to reason: if you created morality, you can’t, by definition, be bound by it. The English, American, and French revolutions changed all that when they created the notion of popular sovereignty—declaring that the power once held by kings is now held by an entity called “the people.”

“The people,” however, are bound by the laws. So in what sense can they have created them? They created the laws through those revolutions themselves, but, of course, revolutions are acts of law-breaking. It is completely illegal to rise up in arms, overthrow a government, and create a new political order. Cromwell, Jefferson, and Danton were surely guilty of treason according to the laws under which they grew up, as surely as they would have been had they tried to do the same thing again twenty years later.

So, laws emerge from illegal activity. This creates a fundamental incoherence in the very idea of modern government, which assumes that the state has a monopoly of the legitimate use of violence (only the police, or prison guards, have the legal right to beat you up). It’s okay for police to use violence because they are enforcing the law; the law is legitimate because it’s rooted in the constitution; the constitution is legitimate because it comes from the people; the people created the constitution by acts of illegal violence. The obvious question, then, is: how does one tell the difference between “the people” and a mere rampaging mob?

There is no obvious answer.

The response, by mainstream, respectable opinion, is to try to push the problem as far away as possible. The usual line is: the age of revolutions is over, except perhaps in benighted spots like Gabon or Syria, and we can now change the constitution, or legal standards, by legal means. This of course means that the basic structures will never change. We can witness the results in the US, which continues to maintain an architecture of state, with its electoral college and two party-system, that—while quite progressive in 1789—now makes us appear, in the eyes rest of the world, the political equivalent of the Amish, still driving around with horses and buggies. It also means we base the legitimacy of the whole system on the consent of the people despite the fact that the only people who were ever really consulted on the matter lived over 200 years ago. In America, at least, “the people” are all long since dead.