Law and Philosophical Theory: Critical Intersections 9781786602664, 1786602660

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Law and Philosophical Theory

Law and Philosophical Theory Critical Intersections Edited by Thanos Zartaloudis

Published by Rowman & Littlefield International Ltd Unit A, Whitacre Mews, 26-34 Stannary Street, London SE11 4AB www.rowmaninternational.com Rowman & Littlefield International Ltd. is an affiliate of Rowman & Littlefield 4501 Forbes Boulevard, Suite 200, Lanham, Maryland 20706, USA With additional offices in Boulder, New York, Toronto (Canada), and Plymouth (UK) www.rowman.com Selection and editorial matter © Thanos Zartaloudis, 2018 Copyright in individual chapters is held by the respective chapter authors. Chapter 7 originally appeared under the title ‘Icons of Control: Deleuze, Signs, Law’ in International Journal for the Semiotics of Law, Vol. 20, No. 1 (2007) (Springer) All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without written permission from the publisher, except by a reviewer who may quote passages in a review. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library ISBN:

HB 978-1-7866-0264-0 PB 978-1-7866-0265-7

Library of Congress Cataloging-in-Publication Data Names: Zartaloudis, Thanos, editor. Title: Law and philosophical theory : critical intersections / edited by Thanos Zartaloudis. Description: Lanham : Rowman & Littlefield International, 2018. | Includes bibliographical references and index. Identifiers: LCCN 2018032301 (print) | LCCN 2018035365 (ebook) | ISBN 9781786602664 (electronic) | ISBN 9781786602640 (cloth : alk. paper) | ISBN 9781786602657 (pbk. : alk. paper) Subjects: LCSH: Philosophy. | Law. Classification: LCC B65 (ebook) | LCC B65 .L39 2018 (print) | DDC 340.1—dc23 LC record available at https://lccn.loc.gov/2018032301 The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI/NISO Z39.48–1992. Printed in the United States of America

Contents

 

An Introduction: Law and Philosophical Theory — Critical Intersections1 Thanos Zartaloudis

 1 Illegalisms and the Law of Civil Society: From Foucault to Marx Mikhaïl Xifaras  2 Foucault’s ‘Distrust of Legalism’: On Human Rights and the Revolution in Iran Jessica Whyte

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 3 Actor-Network Theory and the Critique of Law Kyle McGee

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 4 Reopening the Archive: From Hypomnesis to Legal Ontology Hayley Gibson

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 5 Notes on the Person and the Anthropological Machine of Law Gian Giacomo Fusco

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 6 Immanentism and Incorporation: How Law Makes Corporations Tara Mulqueen

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 7 Icons of Control: Deleuze, Signs, Law Nathan Moore

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Contents

 8 Iconic Norms: A Theory of the Normative Nature of Images Emanuele Coccia

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 9 If Law Speaks, It Speaks of Enjoyment: Psychoanalysis and Desire Justin Clemens

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10 Love, Law, Anarchism Elena Loizidou

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11 Law as Myth – On the Young Walter Benjamin Emanuele Castrucci

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12 The Being of the Volk: State, Führer and ‘The Political’ in Heidegger’s Seminars during the Kairos199 Matthew Sharpe 13 The Migration of Frontiers William Watkin

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14 Elements of a Theology of Secularization Anton Schütz

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Index253 About the Authors

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An Introduction Law and Philosophical Theory — Critical Intersections Thanos Zartaloudis At a time when the legal form is engaged in a society-wide triumphal march, and in which not ‘law’ but adopting a legal form and a law-like proceeding is becoming a universal asset of fields as far from law as are political and academic life, philosophy itself and, increasingly also, personal relationships, how can philosophical theory think law? For Gilles Deleuze, writing on Samuel Beckett, the notion of the exhausted takes an important position. ‘The exhausted’, writes Deleuze, ‘is a whole lot more than tired [le fatigué]’ ([1992] 1995, 3). To be tired is to no longer be able to realize one’s projects, perhaps temporarily so due to having encountered a limit or obstacle; to be exhausted, by contrast, is to be rid of the possible itself, to exhaust the experience of the limit itself: ‘The tired has only exhausted realization, while the exhausted exhausts all of the possible. The tired can no longer realize, but the exhausted can no longer possibilize [ne peut plus possibiliser]’ (ibid., translation modified). Deleuze, in this way, locates in Beckett an affirmative thinking of exhaustion as a force of potentiality (in this sense of possibilizing anew), since when the exhausted subject finds itself beyond any calculus of activity (and derivation of possibility), it can recompose itself in a new subjectivity with the power to innovate beyond currently cognized or delimited possibilities. Interestingly no longer being able to possibilize is the desire of the master, that is, what philosophers have also called the Western ‘metaphysics of presence’, which conceives of the modality of potentiality (or ‘power’) as the exhaustion of all possibility at the moment of the actualization of this or that. Once actualized, in this limiting modification of the modality of potentiality, a thing or, in this case, a legal thought or law, no longer knows how to transform itself. Thus, legal thought and theory are reduced to present merely the application of (the) law and its doctrinal study, to the business of judging 1

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(and judging judgements), to defend ‘usefulness’, ‘real law’, to ultimately perform one’s ‘duty’ and so forth. We cannot, however, leave legal thought in the hands of lawyers, who continue to claim that their (albeit speculative) certainty ‘must be defended’ at all costs. For some, legal thought is a consensus-driven monolithic master theory of law aimed at exhausting itself in this or that actualization (and its consequences) and denying its constitutive dynamism and potentiality. It is not infrequent in the legal field, for example, to hear colleagues insist upon what they consider legal thought must entail and what not, or to hear how anything outside of the immediate field of law application and functionality is of no value, or, at best, a misguided, naive or misplaced inquiry. At the same time, to be fair, the other ‘critical’ side of this disciplinarian view, that is, that one should not care about what the law ‘is’ or ‘does’ at all, is equally idiotic (in both senses of the word). The dynamism of thinking (the) law can never be entirely exhausted (in terms of its potentiality) since, even when it desires to do so, it can never hide well enough the fact that legal thought in such a restrictive vein tends to hide behind a predetermined description or narration of (legal) reality and whatever it considers produces it (or exhausts it). It is a good thing, then, that this cliché image of legal mediacy as immediacy, or the systemic conflation of potentiality and actualized or actionable reality, has become visibly tired from overuse. Legal thought has ended in its motor jam between naturalism and positivism quite some time ago, and today it cannot deny that there is a much wider multiplicity of disciplinary and interdisciplinary tongues that partake in it. The challenge is to maintain an openness to epistemic uncertainty without exhausting thinking (the) law in the impasse of ever new clichés, whether of neo-disciplinarian fetishism or momentary critical reactions that present themselves as rather unremarkable manifestos of claimed salvation. A better aim today could perhaps be to further cultivate a, hitherto unheardof, let’s call it, higher order of suspicion. Lawyers are, by training, suspicious, or ‘prudent’, as it has been called through centuries. How would it be if those who possess the mastery of law were dispossessed by those lacking such mastery – and who are actually uninterested in it interested perhaps only in repossessing it in different, alternate ways. For instance, suspecting that the political mode of talking about law, far from being the only motor of inspiration or imagination in thinking, or ‘criticism’ (the same, expressed in a more old-fashioned manner), might lead to experimentation with alternative modes. The critical mode, whenever it transforms, as it often does, into the lazy exercise of some moot Hegelian recognition game, justifies a new learning mode resulting from provisionally lifting all presupposing of what may be possible in thinking (the) law. The point is not to somehow seize imperfection and inconclusiveness (as if that would ever be possible) but to



An Introduction 3

continue the genuine repetition of learning and questioning without any claim to the mastery of thought’s potentiality. Thinking law (or the law) is not to be limited to or conflated with the objectives of lawmaking, policymaking, regulation calibration and so forth, neither to apply nor to merely unplug law but rather, as Giorgio Agamben has put it, to ‘study’ it (2005, 64, with reference to Walter Benjamin). That may be a more modest, but also more creatively negligent, state for what can be called a not-yet destined, that is, an effectively potential legal thought. To take seriously the exhaustion of legal thought (in the conventional senses of ‘jurisprudence’ or ‘legal philosophy’, ‘legal theory’, etc.) would mean to understand legal thought as a thinking of specific modalities in the first place and, in doing so, to acknowledge its own self-produced and self-justified modification of modalities too (e.g. the presupposed primacy of actuality over potentiality or of normative necessity over contingency). It seems that too often legal thought attempts to once more discipline itself in its various jurisdictions (whether as jurisprudence or legal philosophy) by presenting itself as a non-exhaustible system of judgement that while occasionally confronting its own fatigue, it only perceives it as merely being antagonized by this or that contradiction or logical paradox. It is perhaps pertinent to remember that legal thought’s supposedly superseding conditionality of itself remains ever unsecured before the emergent creativity of thought and a living contingency more widely. The law cannot tell thought what to do, and thought should have no interest in predetermining what the law or legal thought can do. This is not to say that limits do not and should not be imposed in the legal application, interpretation and inquiry of law; it is to say that thinking the law does not in any way need to be legal thinking (in the strict sense). It is worth noting that legal thought is based not on absolute principles but on largely speculative narrations of origins, presuppositions and axioms. Yet legal thought, in some parts of the world at least, has constitutively stopped thinking and narrating, and instead it has confined itself to the study of the clinical technicity of rules as merely logical dictions and contradictions, in front of a, now institutionalized, scaffolding of denial. Critical antagonists choose a variety of important forms of critiques, resistance or polemical counter-commentaries, but more often than not merely indulge in the bemoaning of the betrayal of this or that principle and often, in the service of a large diversity of excellent reasons, defend, once again, the minor against the major, the subject against the master. The futility, however, of this dance with the law, both ‘clinically’ and ‘critically’, escapes their authors. Instead, irrespective of some more nuanced positions in the current debates of legal thought, let me remind just one flagrant thing: if there was only necessity, then there would be no need for thought. Speaking of the law, so far as one does, is after all done in many different tongues, geographies and

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temporalities. Thinking law in different tongues, too, means that a certain attempt at autochthony (the law’s supposed autonomy and self-emergence) is ever an attempt to pre-establish and justify its ‘presence’, yet for such an expedition there never has been and never will be any guarantees (the law may be, indeed, a functionally differentiated system that remains to be understood and studied as such, but one among others, and not something like a ‘master system’). Legal thought as a wider thinking of (the) law, does not oblige us, nor does it merely correspond to a factual or normative singlefaceted reality (of, e.g., legal application or judgement). Hence, no essential or necessary imperative can be conclusively derived from legal thought as to its form, content and supposed moral prescription. In this sense, it would be pertinent to engage legal thought in the mode of an open-minded study across and at the intersection of disciplines, in order to recognize the hesitation and awareness of its inherent pluriversality. To think law at the place of an intersection, as this collection proposes, means to interrupt its flux of sentences, commandments, principles and axioms in order to give it back to its, we can perhaps say, ‘original’ hesitation, not its unsayable or unimaginable origin or foundation, but rather its contingency, that is, its lack of an essential origin or nature and its coexistence and composition in the middle of things. Hence, in this collection, I thought that it would be a good idea if some of the rich variety of current legal thought, beyond the narrower confines of conventional legal theory, could be collated at the particular intersection of thinking the law philosophically and theoretically with the humanities. This collection of essays is not united by a common inquiry. If there is something that brings these disparate essays together, it is their interdisciplinary practices of thinking law, in the widest sense, across the humanities and with particular regard to philosophical (or related) theorizing. It so happens, here, that they can be seen as in a dyadic proximity and so they are placed, though, at the same time, the questions raised and the entailed approaches remain significantly different. Let me briefly summarize, then, the initial questioning of each contribution so that you can have a sense of what is involved in this intriguingly polyvalent, I hope, collection. Mikhaïl Xifaras is professor of public law at Sciences Po in Paris. In Illegalisms and the Law of Civil Society: From Foucault to Marx, Xifaras engages with the question of how to theorize the relation between what Michel Foucault understood as ‘disciplines’ and the structure of the capitalist economy, while focusing on the particular role played by the invention of a peculiar legal, fictional ‘thing’ called patrimony (patrimoine). Xifaras aims to show that although Foucault convincingly exposed the productivity of a whole set of norms at a micro level (of the disciplines), he was not able to accurately articulate this set of norms to the inventive legal structures of



An Introduction 5

capitalism. In this sense, Xifaras argues, what remains necessary is an account of the relation between ‘the fostering of free markets and the development of mass incarceration’. Thus, Xifaras turns to re-examine the attention the young Karl Marx gave to the analysis of legal regimes, and he proposes that it is in Marx that one can locate an alternative way to theorize law and the disciplines or, in particular, the relation between private law and the invention of illégalismes (illegalisms). Jessica Whyte is senior lecturer in cultural and social analysis at the University of Western Sydney, Australia. In Foucault’s ‘Distrust of Legalism’: On Human Rights and the Revolution in Iran, Whyte engages with Michel Foucault’s intervention in the late 1970s to protest the executions that followed the Iranian Revolution and its aftermath. She thus reopens the discussion as to the relation between Foucault’s opposition to universalisms that ‘derive human rights from an essentialised account of human nature’ and his reports from his visit to Iran and praise of the revolution during the previous year. Whyte contextualizes Foucault’s engagement with his work on human rights and the Enlightenment, more generally, and argues that the events in Iran shaped Foucault’s thinking on human rights, but ‘this did not take the form of exuberance for lawless violence, shocked recoil before its consequence, and subsequent recognition of the eternal truth of Enlightenment values’. In order to offer a better understanding of Foucault’s position, Whyte places his interventions on the cusp of two distinct human rights discourses (one that was a materialist and statist portrayal of rights and a second that promoted a defence of the spiritual aspects of the human person – dignity, freedom of conscience and bodily integrity – against the power of the collective and the state). Whyte argues, further, that while Foucault had ‘considerable sympathy for this second human rights discourse’, better understanding the place of human rights in Foucault’s Iran writings requires attention to the lecture course he delivered immediately before travelling there, Security, Territory, Population (Foucault 2009). In doing so, Whyte proposes that while Foucault’s Iran writings sit on the cusp of a transition from a materialist, statist, human rights discourse to a new individual human rights movement ‘that sought to resurrect a spiritual account of the liberty of the human person’, what can, today, be retrieved from these writings and interventions is Foucault’s continuing refusal to disavow revolt itself. Kyle McGee is a legal practitioner in the United States, and the author, among else, of Bruno Latour: The Normativity of Networks (Routledge, 2014). In Actor-Network Theory and the Critique of Law, McGee engages with actor-network theory (ANT) and its relationship to critique, or what he terms its ‘ante-critical’ position. Contextualizing Latour’s influential formulation of ANT as ‘a “sociology of associations” that abjures the lofty, often concealed explanatory devices frequently found in critical theory (the

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unconscious, class, and habiti, the structure of writing, social relations and “society” itself) in favor of witnessable translations, mediations, and performances’ (Latour 2005), McGee provides an intersectional engagement between ANT and the critical legal approach to law in order to outline the perhaps at first sight surprising, if delicate, cogency between legal critique and ANT, and which, as McGee argues, can become more open to ‘productive perplexity’ and synergy. Hayley Gibson is lecturer in law at Kent Law School, University of Kent. In Reopening the Archive: From Hypomnesis to Legal Ontology Gibson reopens the question of the relationship between the law and the archive through a rereading of Jacques Derrida’s Archive Fever and a critical engagement with the work of Cornelia Vismann. For Gibson, ‘the law’ and ‘the archive’ share, ‘under the pain of forgetting, a hypomnetic existence’; that is, they are commensurate. If the archive is structured juridically, the law itself is, and can only be, archival, she argues. ‘For the law is nothing more or less than its archival structure: guaranteeing, if not its origins, then the possibility of its perpetual effort to return to ever-reiterated supplements of the origin, which proliferate internally to, and not beside, “the law” ’, Gibson writes. Gibson, thus, invites us to revisit and develop further the archival nature of the juridical and the juridical nature of the archive. Gian Giacomo Fusco is a philosopher and an urban studies researcher, who holds a doctorate in law, and is based at Kent Law School, University of Kent. In Notes on the Person and the Anthropological Machine of Law, Fusco engages with the making of the legal person, starting from a re-evaluation of the conventional debate between the so-called legalist perspective, which sees the person as ‘an abstract technical artefact devised and implemented to fulfil determinate juridical operations’, and the metaphysical realist perspective that sees the person as ‘mirroring (within the sphere of law) certain essential characteristics of human nature’. In this latter sense, legal personality is understood as an expression of certain ‘constitutive attributes of human beings; it corresponds to the affirmation and transposition, in law, of presupposed assumptions over the essence or the nature of human beings’. Fusco initiates his criticism by observing that the debate between these two conventional approaches remains problematic at its core (given its metaphysical presuppositions as to what a human person is and should be): ‘The notion of the person as a fictional construction, applicable potentially to anything and anybody, clashes with the fact that the process of personification is ultimately discriminatory’. Fusco, then, proceeds to unfold a discussion of the concept of the person via a historical (with particular regard to the Roman persona) and philosophical approach (relying on Giorgio Agamben and Yan Thomas), in order to observe law in its creative function as an anthropological machine ‘establishing each time the limits of the “human” ’.



An Introduction 7

Tara Mulqueen is assistant professor at the University of Warwick, School of Law. In Immanentism and Incorporation: How Law Makes Corporations, Mulqueen reengages with the 20th century’s key theories of legal incorporation in order to revisit a significant debate in the history of legal thought as to the body corporate and its composition as a ‘fiction’ and as a ‘reality’. In doing so, Mulqueen extends the conventional theorization through the critique of legal transcendence and immanence in the thought of Jean-Luc Nancy. Collective or individual unity, Mulqueen argues, is ‘always a fiction of a sort, but such a fiction is not commensurable, such that the unity created or recognised by the state will be the same or equivalent to that which may come from the group itself’. And she critically adds: ‘Not every “we” expresses an immanentist unity, but it is this immanentism that the collectivity takes from law when recognised as a body corporate’. Nathan Moore is senior lecturer in law at Birkbeck College, School of Law of the University of London. In Icons of Control: Deleuze, Signs, Law, Moore engages broadly with the term ‘jurisprudence’ in its continental sense, indicating the creative action of legal practice, the process by which it is forced to innovate and construct. Moore finds synergy between this understanding and Gilles Deleuze’s concept of the event and finds inspiration in the latter’s comments of what he called ‘societies of control’. The move from law as a disciplinary mode into law as a regulatory practice, of what Moore lucidly calls an ‘interminable modulation’, is explored through the seemingly surprising angle of the semiotics of C. S. Pierce (who, in fact, influenced Deleuze’s work on cinema). It is through these explorations that Moore advances the argument that control operates predominantly through icons. Emanuele Coccia is associate professor at the École des Hautes Études en Sciences Sociales (EHESS) in Paris. In his Iconic Norms: A Theory of the Normative Nature of Images, Coccia proposes that we take seriously the normative power of images, or what he calls ‘iconic normativity’, for it is images and not words that are most efficacious, today, as a medium of norm-making and lawmaking. As a result, legal study finds an, at first sight, unlikely research partner in advertising and fashion styling. Coccia, in his innovative approach, challenges the most basic presuppositions of sociology and anthropology, as well as of legal theories of normativity. He argues that ‘social life is possible not on the basis of a fixed symbolic structure, but on the basis of the possibility – exemplarily embodied in advertising – to destroy continuously, to deconstruct and rearrange old symbolisms and to introduce elements of novelty in an ironic and contingent way’. Thus, social and legal normativities are rendered possible, counter-intuitively, because of the continuous and playful deconstruction of ‘the relationships between individual, natural and artificial elements of the world’.

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Justin Clemens’s contribution is titled If Law Speaks, It Speaks of Enjoyment: Psychoanalysis and Desire. Clemens is associate professor in the School of Culture and Communication at the University of Melbourne, and he has written extensively about contemporary philosophy, psychoanalysis and poetry. In this chapter, Clemens engages with psychoanalytic theory through Sigmund Freud and Jacques Lacan in regard to its relation to the question of the establishment of ‘Law’ (or ‘Law “as such” ’, as Clemens puts it) while he also maintains for excursions in philosophy (via Philippe LacoueLabarthe and Jean-Luc Nancy). Psychoanalysis, Clemens argues, has from the beginning of its inception offered radically new accounts of the so-called grounds, functions and implications of law. As Clements writes: Freud and his colleagues sought to demonstrate that the origins, operations and effectiveness of law were contingent upon unheralded forms of desire and enjoyment. Even more significantly, this foundation of the law in enjoyment not only bred a plethora of imaginative transgressions, at once sexual and aggressive, but split the law in its heart. In binding subjects by separating them from themselves, it turns out that the law simultaneously sequesters itself. . . . In giving such an account of the law, psychoanalysis both extends and overturns the traditional themes of philosophy, insofar as psychoanalysis inexorably corrodes any concept of the supreme good, of the priority of reason, or any easy linkage between consciousness and action.

Clemens presents psychoanalysis, thus, as an eminently constructive and undogmatic project that beyond mere scepticism reintroduces matter and the situated body into thought, and which in this chapter he reinjects into what we can broadly call legal thought. In doing so he demonstrates the continuing relevance and vitality of engaging with psychoanalytic theory in legal studies. Elena Loizidou is reader in law and political theory at Birkbeck College, School of Law of the University of London. In Love, Law, Anarchism, she engages with the peculiar ambivalence of the experience of love as a philosophical-political element of thinking about the laws of love and, implicitly, the love of laws. Her chapter is organized around three schematic figurations of love: first, between that of the poet, essayist and classist Anne Carson and her engagement with Sapho; then the engagement with love in the critical work of the legal historian and theorist Peter Goodrich; and, finally, the challenge posed to thinking love as other than a juridical judgement in the anarchist life of Emma Goldman. Loizidou points, ultimately, towards a movement of love that is, at its heart, ambivalent, and she argues for a sojourn in ambivalence rather than any kind of sheltering (in law or otherwise) from the inherent turbulence of what could be called a ‘living love’.



An Introduction 9

Matthew Sharpe is associate professor who teaches philosophy at Deakin University in Australia. In The Being of the Volk: State, Führer and ‘the Political’ in Heidegger’s Seminars during the Kairos, Sharpe engages with the recent publication of Martin Heidegger’s Ponderings or Black Notebooks (2016), following the publication of his lectures and seminars from the critical period 1933–1935, that have challenged earlier assessments of the political or metapolitical signification of the philosopher’s work and his relation to national socialism in Nazi Germany. This, Sharpe argues, necessitates an understanding of the Nazi movement and most crucially, in this case, of the intellectual debates that ‘attended its accession to power, and the scramble for status and place of different schools in the chaotic period of the Gleichschaltung’. Hence, Sharpe, more widely, addresses what can be called Heidegger’s ‘legal theory’ or political philosophy, offering a meticulous introduction to the historical and theoretical context of his thought at the time and implicitly advancing caution as to the intersection of legal thought and political action. Emanuele Castrucci is professor of philosophy of law and political philosophy at the University of Siena. In Law as Myth – On the Young Walter Benjamin, he revisits, among others, the famous ‘Critique of Violence’ of Walter Benjamin. For Castrucci, it is this early essay that most immediately realizes the way in which ‘the German political atmosphere [became] attracted by the myth of a “redemptive revolution” ’. In this sense, for Castrucci, it is crucial to not separate this early work ‘from the spiritual and ideological context that distinguished the Weimar environment of the 1920’s. An environment that recognized within itself, as its never altogether conceptually resolved core problem, the persistence in the structure of the “political” of the last repercussion of a theologia politica perennis’, for Castrucci aims to unravel provocatively anew, in some distance from Benjamin, the ‘allegory of a world in which the complete neutralization of the “other” is mere impracticable ideology’ and the attempt, by liberalism, to mask conflict. William Watkin is professor of contemporary literature and philosophy at Brunel University. In The Migration of Frontiers, he imaginatively narrates the story of a subject who, as he writes, experiences ‘the bioviolence of indifference, neglect, exclusion and in-appropriation’ in moving across frontiers and becoming the biopolitical frontier. What could the philosophers (e.g. Agamben, Foucault, Zizek, Badiou, Deleuze, Derrida) tell this person and what can the frontier experience of his tell us? Given the particular manner of this text, it is best to let it speak for itself: ‘The border is no longer at the border, Balibar declares. A close reading of the history of philosophy shows that it never was. What we are seeing today with a philosophy of frontiers and a metaphysics of migration is a global, biopolitical, geographical confrontation of the being of the state with its internalised impossibilities, its

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ontological aporias. In a sense, we are drawing a new border or frontier, between the ideas of ancient Greece and the actions of its modern counterpart. In this way, the figure of the migrant does present a possibility, as Agamben argues, for a new idea of state-hood, born out of the shambles of its current collapse. Scant recompense for the migrant perhaps, but as the world hurtles towards ecological disaster potentially making migrants of us all, activating the political agency of the migrant may become the most urgent global political project we face’. Anton Schütz is a legal theorist and historian at Birkbeck College, School of Law of the University of London, who specializes in legal and social theory, European institutional history, social systems theory and a number of inquiries into Western Christianism. In Elements of a Theology of Secularization, Schütz engages with the history of Western Christianism and its geohistorical role in parallel to that of legal and institutional life in order to, among others, show that thinking the so-called secular or religion, today, within legal studies is more relevant than ever. He begins with the wider point that in law one is ‘under the duty of judging’. Yet the less obscurantist moments of legal history, Schütz writes, are those where lawyers showed awareness (rather than denial) to the fact that judging is always conjecturing (whether in legal judgement or other forms of judging). While legal judgement may be a privileged case of social communication, the point, here, is not to press on the distinction between legal and other judgements. Instead, Schütz traces, by reference to Western Christianism, the fact that conjecturing ‘extends to all walkways of legal and institutional life, also and especially beyond the remit of “religion” ’. This collection remains by no means exhaustive. While there are thankfully many other established or new voices engaged in this kind of work across the world than this collection could showcase, and while there are also many more approaches to legal thought than the ones sampled here, it is hoped that the contributions in this volume offer a useful glimpse of some of the various ways in which scholars have approached the theoretical study of law at the intersection of theoretical legal thinking and the humanities. The title of the collection, it should be noted, indicates ‘philosophical theory’ broadly rather than the discipline of philosophy, and thus a few of the contributions in this collection undertake a welcome variety of theoretical (and not necessarily more narrowly philosophical) approaches to legal thought. In addition, ‘critical intersections’ in the subtitle indicates a particular moment in time, whereby there appears to be a tendency in the related fields towards exploring law at the intersection between disciplines (and in particular the humanities), as well as different genres of writing, without advancing necessarily a particular approach as a new determinate pathway for this or that related discipline. Ideally, more collections of this kind will supplement and



An Introduction 11

showcase further interesting work taking place around the world. One could venture to suggest, finally, that after the often naively perceived combative relationship between conventional legal theory, for example, and wider interdisciplinary attempts at legal thought (whether through ‘critical legal studies’ or ‘law and humanities’ approaches) there appears to be an emerging realm of thinking law without a predisposed confining agenda at the forefront and one that aims to take interdisciplinarity to a more advanced level of inquiry. BIBLIOGRAPHY Agamben, Giorgio. 2005. State of Exception. Translated by Kevin Attell. Chicago: Chicago University Press. Deleuze, Gilles. [1992] 1995. ‘The Exhausted’. Translated by Anthony Uhlmann. SubStance 24 (3): 3–26. Foucault, Michel. 2009. Security, Territory, Population: Lectures at the Collège de France, 1977–1978, edited by Michel Senellart. New York: Picador/Palgrave Macmillan. Latour, Bruno. 2005. Reassembling the Social: An Introduction to Actor-NetworkTheory. Oxford: Oxford University Press.

Chapter 1

Illegalisms and the Law of Civil Society From Foucault to Marx Mikhaïl Xifaras

This chapter1 engages with the question of how to theorize the relation between disciplines and the structure of the capitalist economy and focuses on the particular role played by the invention of a legal fictitious ‘thing’ called patrimony. It aims to show that although Michel Foucault brilliantly unveiled the productivity of a whole set of norms at a micro level (the disciplines), he was not able to accurately articulate this set of norms to the legal structures of capitalism and therefore failed to give an account of the relation between the fostering of free markets and the development of mass incarceration. The careful attention the young Karl Marx gave to the analysis of legal regimes might offer, at this point, an alternative way to theorize law and the disciplines. Thus, this chapter discusses the role of the ‘theory of patrimony’ in the understanding of the relation between private law and the invention of illégalismes (illegalisms). We know, thanks to Foucault, that the birth of the human sciences corresponds with the arrival of a ‘certain modern manner of knowing empiricities’ (Foucault 1994, 249). The human sciences are addressed to man ‘in so far as he lives, speaks, and produces’ (ibid., 350).2 We also know the crucial role played by ‘social relations’ in the development of modes of knowledge about productive activity.3 The invention of the concept of social relations comes from a theoretical shift dismissing as ideological the ‘juridical vision of the world’, which was carried by natural law theories. According to these theories the relations that lace the fabric of real life are first and foremost jural relations (e.g. legal personality, property, contracts). Once this vision is repudiated, however, something appears both behind and before the law, which cannot be sufficiently expressed in legal discourse alone, because it is deeper and more real than that. This something is ‘the social’, understood as an autonomous ontological order and an independent domain of inquiry.4 13

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Once this shift to the social occurred, in the work of many authors, ‘the Spirit of the Law’ and, more generally, the different stages of history of ‘civilization’ are no longer to be searched for in legal regimes of property (as in, e.g., Simon N. H. Linguet5 and Adam Ferguson6) but in the ‘social relations of production’. These relations are understood as real, organic connections. The right to property is just a tool for their reproduction, and it does not take part in their constitution. First, property law faithfully reproduces social relations by inadequately reflecting them, providing an ‘inversed vision’ that shrouds the relationships of domination that are, in fact, structuring them (e.g. by representing employer and employee as freely acting and fully equal co-contractors). Second, property law reproduces social relations by punishing, with all the brutality and violence of public authority, any opposition to these relationships of domination (as manifested in theft or in a strike). According to that perspective, law is seen as an ideology and as a repressive apparatus, or following Louis Althusser, as an ‘ideological state apparatus’. In freeing us of the ‘juridical view of the world’,7 the human sciences thus often, at least in France, refuse law a major role in the constitution of society and are sometimes, then as now, largely indifferent to legal phenomena and their productivity. This indifference rests on a misunderstanding that is hard to make sense of: one can very well dismiss the theoretical juris-centrism of modern natural law theories, try to think outside of any statist storytelling, reckon that all the relations in real life are not necessarily legal, and, nevertheless, stay alert to the role of law in the constitution and functioning of our societies. One can raise the criticism that the juridical vision of the world is ideological, without necessarily relegating legal relations to the dustbin, deeming them secondary to or even outside the social. Foucault’s first lecture at the Collège de France in 1972–1973, recently published under the French title La société punitive,8 offers exactly this lesson, thanks in large part to the careful work on these lectures accomplished by François Ewald, Alessandro Fontana and Bernard Harcourt. As Harcourt argues in his superb commentary,9 the intuitive notion of illégalismes (illegalisms) shows that the establishment of a given legal regime does not simply observe and sanction deviations or transgressions within an already-constituted social order but participates in its very definition by delineating the boundary between the ‘legal’ and the ‘illegal’. The figure of the criminal is not that of a person outside of society. Rather, society constructs him or her, at least in negative terms, by defending itself against its ‘enemies’. Thus, law asserts a constitutive role, and the analysis of legal regimes reintroduces itself to the study of human being and society. Generally, this lesson has been applied. Thanks to Foucault, we now know that to understand madness, citizenship or housing one must pay close attention to the internal

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regulation of psychiatric hospitals, the administrative status of alien residents and legal regimes regulating homelessness. This is an important and welcome lesson. However, it remains limited. Foucault recognizes that the law is productive, but the law remains only negatively so. The notion of illegalisms does not take us further than the context in which it was developed: a study of repressive tools whose function is mainly to enforce and sanction what the law itself is establishing as illegal. Law participates in the production of social relations but still only by the way of repression and sanction. That is undoubtedly the reason why most frequently law appears in Discipline and Punish in the guise of criminal law and is generally associated with the state’s sovereignty.10 The law also appears in the writings of 1972 that Foucault pulled as a set of learned discourse from treatises, pamphlets, dissertations, sometimes the travaux préparatoires for legislation, or the dicta of court decisions (les motifs), that is to say all that which, in the mass of legal discourse, falls within what might be called ‘secondary literature’. Foucault was less frequently interested with the holdings (les dispositifs) and, in general, with the texts carrying concretely enforceable legal provisions. Foucault understood the law as a narrative on society (which it is) more than as an ensemble of speech acts productive of social facts (which it also is). In Foucault’s view, the law is linked exclusively to repression and ideology. This limitation self-manifests more clearly when one juxtaposes Foucault’s analysis of illegalisms with one of his sources, the young Marx in Theft of Wood. Foucault probably evokes this text because he sees in it a striking example of manufactured illegalisms, in this case the criminalization of wood gathering and the transformation of the poor peasant into a delinquent (Foucault 2015, 62). But our interest in Marx’s analysis does not end here. THEFT OF WOOD AND PROPERTY HYBRIDS Marx’s text comprises a series of newspaper commentaries on the legislation adopted in October 1842 by the Rhine Province Assembly in connection with the pickup of fallen wood in forest.11 Prior to that bill, peasant communities could collect fallen wood through something like a customary right of use. The French-inspired legal overhaul was meant to introduce into the Rhenan Civil Code the notion of absolute property, according to which a forest owner would also own the fallen wood. The legislation targeted fallen wood gatherers by criminalizing fallen wood collection. The young Marx roared with indignation at these provisions, especially since any wrongdoer, beyond reimbursing the forest owner of the value of the stolen wood, would also have to pay a fine to the owner (and not to the state). For Marx, this flagrant

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privatization of even the fine in question demonstrated that the Rhine Province Assembly was not a public legislator but merely an authority working in the exclusive interest of the private owners who composed it. Yet the wood theft provisions were not just criminal. They included an important civil law component that transformed the conception of property in force at that time. Without entering too much into the details, for Marx, customary property rules were necessarily undecided in their scope (i.e. it is not clear who owns which aspects of the thing in question) and were natural hybrids (i.e. simultaneously public and private), because they were linking the private property interests of monasteries and lords with the collective rights of use of peasant communities. In Marx’s view, hybrid property rules contrasted with modern property rules like the wood theft provisions (modelled on Article 544 of the Napoleonic Code)12 that drew together in the owner’s hands, and to the exclusion of all others, an absolute right regarding every potential utility of the thing, enforceable against a third party. In uniting rights that were once diffuse, modern property claimed to ‘free’ peasant communities from having to fulfil their feudal duties to forest owners (i.e. monasteries and lords). As a result, the same wood – cut wood as well as fallen wood – would also be free: that is, free to be sold by the owner. In this way, Marx explained, the law put into place the necessary conditions for a capitalist timber market. The French-inspired law hoped to expunge feudal hybrids and the relations of personal domination that accompanied them and, at the same time, to cancel the traditional entitlements from which peasants profited, in this instance, the legal privilege to collect fallen wood from forests for personal use (i.e. heating) or local sale. Marx’s analysis remains relevant because it highlights the link between the criminal regime’s interdiction of wood theft and the civil regime’s transformation of property, or in the terms of our purposes, the link between the production of illegalisms and the transformation of civil society. Marx shows that the Rhine Province Assembly criminalized deadwood collection and invented the figure of the ‘criminal peasant’ because the law of property took the modern shape of an absolute subjective law. The assembly did so because a capitalist timber market would be formed, because the formation of this market would dispossess peasant communities of customary usage rights, which they had enjoyed until then, and because the German courts had dismissed the claims of civil owners, forcing those owners to the means of criminal legislation to get their way. For Marx, the Province Assembly embraced with such fervour the interests of forest owners, because it was dominated by feudal property owners who dreamed of becoming modern businessmen in order to participate in the emergent timber market. The assembly, based on an estate system of representation, gave a monopoly to land owners, and this monopoly led, inevitably, to the muddling of private and general interests, of

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which the transfer from public to private ownership (of even criminal fines) was both a galling symptom and the prime example. Marx’s argument can also be understood as an effort to describe the interaction of the constitutional system (i.e. the composition of the assembly), the civilian regime (i.e. property protection) and penal law (i.e. criminalization) as implicated in the establishment of this novel illegalism: ‘wood theft’. His analysis also aims to show how the adopted provisions themselves sometimes openly contradict the theories and justifications advanced by parliamentarians in the preamble (exposé des motifs) of the legislation. He reveals these contradictions by exploiting all possible opportunities for attack available, due to the many inconsistencies between the various registers of legal discourse. Marx’s insights usefully supplement Foucault’s lesson. The contrivance of illegalisms is a process that does not take us out of or beyond law but rather extends the law’s reach. One cannot fully analyse the outcomes of a new criminal regime without imbuing that analysis with a perspective on the evolution of the legal system as a whole (in this case, a perspective on the transformations of the civilian property regime). Law does not just negatively produce repression and ideology. It is, instead, the place where new micropolitical spaces of domination, freedom and resistance are positively invented and constituted. The limits of the Foucauldian approach, however, do not diminish the force of Foucault’s central thesis that the modern penitentiary reintroduced morality to the heart of an old system, which up to then was content to index each infraction with an equivalent somatic chastisement, just in order to purge the sin through punishment. But when it comes to explaining this, the reasons advanced are less clear. Capitalism and the penal system would be homologous, or, to be more precise, the ‘wage form’ (forme-salaire) and the ‘prison form’ (forme-prison) would be homologous to each other, because they both need the ‘overall hold of power on time’ (Foucault 2015, 72). Certainly, in order to both imprison and provide wages, it is necessary to frame time ‘in order to control it’ (ibid.), but criminal sentences with both fixed time and work actually predate the disciplinary phenomena that Foucault describes. Yet the invention of the various ways of ‘framing time’, both in the factory and in the prison, neither explains the eventual link between the penitentiary regime and the wage regime nor does it more generally explain the eventual link between the invention of ‘disciplinary power’ and the putting into place of what Foucault calls the ‘capitalist system’. Foucault, who in a stunning manner considers that the ‘wage form’ is ‘not at all legalistic’, actually admits that: I do not mean that the wage imposed its form; that the socio-economic model was taken up by penal practice. Nothing in the history of institutions or in the texts allows us to say that this model was transferred into the penal system.

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I mean simply that the prison-form and the wage-form are historically twin forms, without us being able to say yet what their exact relationship is. (Ibid.)

Foucault makes ‘this overall hold of power on time’ a necessary condition for the possibility of the functioning of the wage system and of the imprisonment system (ibid.), without however imputing a causal or any other relationship between the two, beyond a merely vague homology. On the other hand, in Discipline and Punish the similarity between the accumulation of capital and the accumulation of ‘men’ is described as due to a relationship of mutual ‘necessity’, but this is a question as to the growth of the production apparatus rather than legal structure.13 Perhaps these difficulties relate to what Foucault conceives as disciplinary powers (prison form and wage form), which are described as a kind of ‘anti-law’,14 meaning we should rather dismiss jural relations to render these powers self-manifest as social objects and, indeed, as objects of knowledge. Foucault may conceive law’s productivity as just something negative, that is, as producing only illegalisms, deviances or marginalities. However, it is tempting to apply to the law the few lines that Foucault dedicated to ‘power’ in Discipline and Punish, when he invites us to ‘stop describing [power] in negative terms’ because ‘[power] produces the real’ (1995, 194). The broader rejection of the juridical view of the world has revealed the existence of disciplinary technologies (understood as a multiplication of power relations, both concrete and diffuse) proliferating in the shadow of ‘sovereign law’ (understood as legislation, both formal and abstract). This revelation is a powerful critique of legal ideology, because it unveils how the legal backyard is abuzz with micro-political relations of domination and resistance that legal ideologies ignore or pretend to ignore. However, this unveiling is opposed to disciplinary power and sovereignty and paradoxically reproduces a dimension of legal ideology that it meant to counter. It confirms the legalistic credo of modern legal dogmatics, namely that law flows from sovereignty as a coherent and complete system of general and abstract rules, in the form of a constitution or a code. Marx’s lesson in The Theft of Wood offers a new perspective, since the structural effects that proceed from legal regimes are carefully connected to the micro-politics of disciplinary powers. Marx is interested in the effects of concrete procedures and formalities of law: those that repress, interdict and sanction in the name of the sovereign but, crucially, also those that compose subjects, ordering their positions and relationships, distributing their rights, wealth, powers, privileges, capacities, immunities and responsibilities and those therefore that produce not only obligation and punishment but also freedom, pleasure, power and glory, among others.15 Marx understands the disciplinary powers as concrete determinations of formal legal relationships, not as an alternative

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set of norms, opening, thus, a path towards an internal critique of the ordinary representation of law. This might then illuminate the relationship between the rise of the penitentiary and the legal structures of nascent capitalism. The question, however, is sufficiently difficult so that one would not venture a facile response. We may, nevertheless, risk associating the invention of illegalisms with two important changes in the civil law that happened between the end of the 18th and the middle of the 19th centuries. These changes are, first, the invention, diffusion and adoption of the celebrated ‘patrimony theory’ (théorie du patrimoine) and, second, the progressive abolition of imprisonment on the grounds of debt (contrainte par corps) in civil matters. PATRIMOINE: A FICTIONAL LEGAL BODY One can trace the theory of patrimony back to Immanuel Kant’s Doctrine of Right ([1797] 1996). In the early decades of the 19th century, Karl S. Zachariæ ([1808] 1837) states it as such, and his French translators Charles Aubry and Charles Rau developed the so-called subjective version of it.16 This doctrine would later become the framework and the cornerstone of continental civil law. It asserts that each individual has a patrimony, which is the envelop that contains the sum total of all of his or her goods. In other words, patrimony is the legal interface between that individual and the world. The idea of patrimony is, in essence, the fiction of a legal unity containing the goods owned by an individual, as well as his or her legal powers to appropriate property and rights. Patrimony brings together diverse objects under a common denominator, namely monetary value, which is why the constituent objects, in so far as they compose the same patrimony, are deemed to be mutually fungible. Patrimony is thus a capital. That is why one of its main functions is to be able to become security for creditors. Finally, patrimony is what is transmitted at the death of its holder, an inheritance (though this aspect is not of interest for our purposes here). It is not necessary to enter into the subtleties of patrimony at this point,17 but it is, nevertheless, useful to highlight its great importance. Patrimony is a juridical category that links together the notion of the free person (doted with legal capacity: with the right to have rights), the idea of property (the patrimony which contains the sum of that person’s goods) and the concrete possibility of freely contracting in a responsible manner within a mechanism that allows the lender to assure himself or herself that the borrower can repay his or her debts, with patrimony acting as security. In the so-called subjective version of the patrimony theory, which dominated for a large part of the 19th century, every person supposedly has a

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patrimony, because a person without patrimony is a person who has no guarantee to offer to his or her creditors. A person who has no patrimony is a person in whom one has no trust, that is, who is not seizable by the law, since he or she possesses nothing that responds to his or her debts. It would not be reasonable, then, to grant a person without patrimony the ability to contract freely. Conversely, endowing all persons with a patrimony ensures that they can meet their obligations in the event that they do contract. Although legalistic, the imputation of patrimony to each contractor is a necessary condition for the universalization of civil society, in its bourgeois version. The concept of patrimony fictitiously resolves the aporia of the modern legal subject, who, first, has to be a free person who must remain free (the reason why patrimony can neither belong to a third party nor be alienated) and, second, has to be able to alienate his or her labour force, an evidently constitutive dimension of his or her personality (and without which it would not be possible for owners to hire the labour of a third party so to put property towards fruitful ends). The labour force is a good which the labourer owns himself or herself, but in alienating it, the labourer conserves intact his or her patrimony, understood, here, as the capacity to have rights, the manifestation of legal personality in relationships with others. The triumph of the theory of patrimony directly implicates the idea of illegalism, because the theory is closely coupled with another development which occurred in civil law at the same time.18 This development was the progressive abolition of imprisonment on the grounds of debt in the case of civil matters. In France, the official and definitive abolition of imprisonment for debt, in 1848, did not change much in reality, since the institution had already fallen into disuse by the late 18th century.19 Nevertheless, the event is of great significance because it teaches us how the dominant conception of civil relations shifted at the time. From now on, in terms of property and contract, the individual debtor would no longer guarantee his or her debts using his or her own physical body as security. The idea is fairly simple: the person is and must remain autonomous in his or her civil relations with other people. The person becomes inviolable. The body forms an inseparable part of the person and must be removed from legal commerce, which is one reason why the physical body is largely absent from the Napoleonic Civil Code. One sees clearly, at this point, the connection between the sacredness of the person and the disappearance of the body as an object of law, but this led to a problem: how would one guarantee debts if repayment cannot be secured in the flesh? How would one make sure that people respect their contractual engagements and pay their debts, if it is forbidden to physically seize them? The invention of the patrimony theory offered a clear-cut solution. Traders could pay off debt on the goods contained in their patrimony, which became a sort of artificial or fictional body in the place of the physical

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body. Instead of seizing the natural person, why not seize their fictional body, or, to be more precise, the goods and entitlements ‘it’ contains? Hence, the legal subject required by this theory is completely dematerialized. In the place of a pound of flesh, there is a prosthesis – an artificial legal body, the patrimony. EMPTY PATRIMONY AND MASS INCARCERATION On an anthropological level, the triumph of the theory of patrimony constituted a tipping point. It was at that moment that civil law finally freed itself from what Friedrich Nietzsche called the ‘right to cruelty’ (Nietzsche 2009, 49). No longer able to assess people by capturing their bodies or by marking them, the law could seize their goods. This moment also marks the point when debt circulation was freed of its temporal and physical limitations and became truly infinite. As soon as we pay our debts on the basis of our patrimony, there is no longer a physical limit to the production and circulation of debt. It is perhaps through this shift that we enter fully into the modern legal order, which dominates the market-state pairing and its respective private and public bodies of law. The poor peasants of the Ancien Régime did not have much to lose themselves, but a number of them were still attached to the land, so they were still, in one way or another, seizable, and they were not supposed to enter freely into contracts. In the new system, we are legally seizable thanks to our patrimony. This system functions quite well for all persons who have something to lose, which is to say all those for whom their patrimony is not empty because they own goods and do not want to lose them. Yet this group does not include the proletarian, the vagabond, the prodigious spender and other deviant figures. These anomalous cases force the system to ask how much trust can be vested in someone with ‘nothing to lose’. Technically, then, it is the emptiness of their patrimony that marks the working class as dangerous. This ‘subjective’ version of the theory of patrimony, postulating that everyone has one and only one patrimony, is very good in theory, since it would permit even the neediest and most indigent to go to the factory, exchange labour for money and become a salaried worker. But there could be a gap between its theorization and the reality it encounters, since there are proletarians, prodigious spenders and vagabonds whose patrimony is, in fact, always desperately hollow. As a consequence, such individuals, even if they theoretically have a patrimony, actually have nothing to lose in real terms. Their existence calls into question the viability of the legal structure of modern civil society in its bourgeois version. This is why the danger of an ‘empty patrimony’ is a ghost that so haunted doctrinal debates during the second half of the 19th century.20

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In other words, we cannot establish a well-ordered civil society if there is a mass of people whom the law cannot seize. How to resolve this problem? It is at this point that criminal law comes into contact with civil law in search of a way to confine the poor, the marginalized and the proletariat. Since civil law cannot seize them legally, it should get them out of the market system that binds them to creditors and proprietors so that they can be placed outside the sphere of civil relations and exist, instead, in the world of penalized illegalisms, that is, asylums, prisons and hospitals. The development of corrective and disciplinary powers of this kind is not counter to the ‘law of sovereignty’ but, rather, its extension. The production of new corrective practices is a way of solving the problem posed by the existence of those who cannot be left alone to trade freely, or be otherwise legally apprehended. There is much more to note here than a common condition of possibility: penitentiary disciplinary powers and capitalist civil society are mutually constitutive. Note, however, that the phenomenon of mass incarceration, put into sharp relief by Foucault, was not perhaps the only possible way to construct civil society proper to the development of capitalism. One can imagine other possibilities as well, such as sending the undesirable masses to the colonies or national workshops (the ateliers nationaux of 1848 in France). Although the answer to the modern civil law aporia has taken the form of the theory of patrimony in France, this is not to say that other legal systems where that theory has not prospered, like that of the United States, have not mobilized alternative legal solutions that engage different rationalities and categories. Therefore, we cannot generalize the claim that the prison form and wage form are always mutually constitutive, because imprisonment is only one way through which to ‘solve’ the problem of poverty. Nonetheless, the alignment between the theory of patrimony and the gradual abolition of imprisonment on the grounds of debt in civil matters does suggest that we would not have a market-based civil society at all without some kind of disciplinary mechanism for the neutralization of the danger that emerges as a result of those who are too legally elusive to be permitted to exchange freely. Foucault explored the link between imprisonment and paid labour, noting that ‘when one cannot pay a fine, one goes to prison’ and that ‘the fine appears as the substitute for the day’s labor’ (Foucault 2015, 71). This is true, though it is limited to imprisonment on the grounds of debt in criminal matters. And yet, it is in the civil law that the legal structure of the wage form (patrimoine) actually is rendered manifest. In civil law, the exact opposite occurs: one no longer goes to prison due to debts, because the ‘dignity’ of the person endowed with patrimony is universally accepted. Such a person was supposed to be capable of exchanging his or her labour force in the free capitalist market. One went to prison only when one’s patrimony was far too empty to effectively satisfy one’s market obligations. One can, then, without doubt describe mass incarceration as a civil war, or as a society’s self-defence

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against ‘internal enemies’, as produced by the institution of illegalisms. It is, nevertheless, helpful to consider, in addition, the fact that the birth of the figure of the ‘social criminal’ is historically contemporaneous with the erection of the legal structures that enable modern civil society. This does not necessarily imply that mass unemployment is the cause of the ‘historical extension of the carceral domain’21 or that indigence and incarceration are always correlated. Again, there are other ways to control the ‘very poor’, and one can even imagine capitalist societies full of the poor, yet without prisons. But this means that penitentiaries and correctional technologies, as aberrant and distasteful as they may be, impose themselves as the most expedient solutions to certain concrete problems created by the foundation of these new legal regimes we have called markets, to the point that the two can be understood as aspects of the same phenomenon. We can conclude from this that the study of disciplinary technologies should be closely tied to the examination of the legal structures of which they are but instantiations. This approach could be one of the many ways towards an internal critique of law, by incorporating critical theory within legal thought. NOTES 1 This chapter is composed of reflections delivered at a one-day workshop held at the EHESS (Paris) at the invitation of Bernard Harcourt on the occasion of the publication of Michel Foucault’s lecture at the Collège de France on the ‘Punitive Society’. It was first published in French as ‘Illégalismes et droit de la société marchande, de Foucault à Marx’, Multitudes 59 (2) (2015): 142–151. I would like to warmly thank Bernard Harcourt, Philippe Audegean and the editors of Multitudes, in particular Anne Querrien, Yves Citton and Yann Moulier-Boutang for their insightful comments and suggestions to the original. I would also like to thank Yusuf Saei for the great work on the English translation. 2 See Foucault (1994, 250f). 3 See Macherey (1992). 4 See Xifaras (2008). 5 See Linguet ([1767] 1984). 6 See Ferguson ([1767] 1995). 7 See Deleuze (1982). 8 See Foucault (2015). 9 See Harcourt (2013). 10 On Foucault as a ‘criminal lawyer’, see Kennedy (1991). 11 For a masterful contextualization of Marx’s work, see Lascoumes and Zander (1984). 12 ‘Property is the right to enjoy and use things in the most absolute manner possible, provided that they are not used in a manner forbidden by Statutes and Regulations’ (La propriété est le droit de jouir et disposer des choses de la manière la plus absolue pourvu qu’on n’en fasse pas un usage prohibé par la loi ou les règlements).

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13 Foucault writes: ‘In fact, the two processes – accumulation of men and accumulation of capital – cannot be separated . . . the technological mutations of the apparatus of production, the division of labour and the elaboration of the disciplinary techniques sustained an ensemble of very close relations’. ‘Each makes the other possible and necessary; each provides a model for the other’ (1995, 220–221). 14 Foucault writes: ‘In appearance, the disciplines constitute nothing more than an infra-law. They seem to extend the general forms defined by law to the infinitesimal level of individual lives. . . [But the] disciplines should be regarded as a sort of counter-law . . . whereas the juridical systems define juridical subjects according to universal norms, the disciplines characterize, classify, specialize; they distribute along a scale, around a norm, hierarchize individuals in relation to one another and, if necessary, disqualify and invalidate. In any case, in the space and during the time in which they exercise their control and bring into play the asymmetries of their power, they effect a suspension of the law that is never total, but is never annulled either’ (ibid., 222–223). 15 See Kennedy (1991). 16 See Aubry and Rau (1856–1858). 17 See Xifaras (2004, 199). 18 Foucault references the Penal Code of 1810, which re-established imprisonment for debt and which had been abolished in 1793. Foucault concluded: ‘There is a whole interplay between prison and fine’ (2015, 175). 19 In regard to civil matters, it was abolished by the National Convention on 9 March 1793, re-established by Decree of the 24th Ventose Year V, recognized again by the law of the 15th Germinal Year VI and consecrated by the Civil Code though as a marginal institution that concerns only some specific cases; for example, the stelionaire debtor (the ‘crook’) or public officials. It would then be implicitly but definitely repealed by the Act of 22 July 1867. 20 The debate was initiated in France by an unsavoury fellow, George Vacher de Lapouge; see Vacher de Lapouge (1879, 71). 21 On this point, see Harcourt (2006, esp. 1776–1778).

BIBLIOGRAPHY Aubry, Charles, and Charles Rau. 1856–1858. Cours de droit civil français, 3rd ed., vol. 6. Paris: Cosse. Deleuze, Gilles. 1982. ‘Preface’. In L’anomalie sauvage: puissance et pouvoir chez Spinoza, edited by Antonio Negri. Paris: PUF, 9–12. Ferguson, Adam. [1767] 1995. An Essay on the History of Civil Society. Cambridge: Cambridge University Press. Foucault, Michel. 1994. The Order of Things: An Archeology of the Human Sciences. Translated by Alan Sheridan. New York: Vintage Books. Foucault, Michel. 1995. Discipline and Punish: The Birth of the Prison. Translated by Alan Sheridan. New York: Vintage Books. Foucault, Michel. 2015. On the Punitive Society: Lectures at the Collège de France, edited by Bernard Harcourt. New York: Palgrave, Macmillan.

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Harcourt, Bernard. 2006. ‘From the Asylum to the Prison: Rethinking the Incarceration Revolution’. Texas Law Review 84: 1751–1786. Harcourt, Bernard. 2013. ‘Situation de cours’. In Michel Foucault. La société punitive. Cours au Collège de France (1972–1973), edited by François Ewald, Alessandro Fontana and Bernard Harcourt. Paris: Édition des Hautes Études, Gallimard, Seuil, 271–314. Kant, Immanuel. [1797] 1996. ‘Doctrine of Right’. In Id. The Metaphysics of Morals. Translated by Mary Gregor. Part I. Cambridge: Cambridge University Press. Kennedy, Duncan. 1991. ‘The Stakes of Law, or Hale and Foucault’. Legal Studies Forum 15 (4): 327–365. Lascoumes, Pierre, and Harwig Zander. 1984. Marx, du ‘vol de bois’ à la critique du droit. Paris: PUF. Linguet, Simon Nicolas Henri. [1767] 1984. Théorie des lois civiles ou Principes fondamentaux de la société. Paris: Fayard. Macherey, Pierre. 1992. ‘Aux sources des rapports sociaux, Bonald, Saint Simon, Guizot’. Génèses IX (1): 25–43. Nietzsche, Friedrich. 2009. On the Genealogy of Morals: A Polemical Tract. Translated by Ian Johnston. New York: Vintage Books. Vacher de Lapouge, George. 1879. Théorie du patrimoine, essai de droit positif généralisé. Paris: Thorin. Xifaras, Mikhaïl. 2004. La propriété, étude de philosophie du droit. Paris: PUF. Xifaras, Mikhaïl, ed. 2008. Généalogie des savoirs juridiques contemporains, le carrefour des Lumières. Bruxelles: Bruylant. Zachariæ, Karl Salomon. [1808] 1837. Handbuch des französischen civilrechts, 4th ed. Heildelberg: J. C. B. Mohr.

Chapter 2

Foucault’s ‘Distrust of Legalism’ On Human Rights and the Revolution in Iran Jessica Whyte In April 1979, Michel Foucault wrote to the Iranian prime minister Mehdi Bazargan to protest the executions that followed the Iranian Revolution.1 Foucault reminded Bazargan of their meeting the previous year in Iran, when Bazargan was president of the Committee for the Defense of Human Rights in Iran. Foucault – who was in the country to report on the revolutionary upheavals for an Italian newspaper – recalled that their meeting occurred immediately after Black Friday, when protestors were machinegunned on the streets of Tehran. Bazargan’s human rights advocacy took courage, Foucault wrote, both physical courage, as he faced returning to Iran’s notorious prisons, and political courage, as the United States had just designated Iran’s authoritarian monarch, Shah Pahlavi, a ‘defender of human rights’ (Foucault [1979] 2002, 439). Foucault visited Iran one year after the election of U.S. president Jimmy Carter, who made human rights central to his moralized foreign policy. Carter’s human rights rhetoric emboldened the Iranian opposition, and when he announced a visit to Tehran in 1978, opposition members addressed a letter asking for help to defend human rights. The letter was ignored, and by the time Carter arrived to greet the Shah and declare their common commitment to human rights, most of the letter’s signatories were in jail. One year and a revolution later, Bazargan, the former head of the human rights committee, was prime minister, and the new Islamic republic had executed more than 200 opponents in the past two months.2 Given this, one would expect Foucault to be sceptical about human rights, particularly given his own previous argument that the theory of right functions to erase domination by framing power as a question of legitimacy and thereby secure both the legitimate power of the sovereign and the legal obligation to obey (Foucault 1997, 26). Foucault’s approach in his letter to 27

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Bazargan is strikingly different. Although he reminds the Iranian prime minister of their previous conversation about ‘all the regimes that oppressed people while invoking human rights’, he also takes seriously the hope Bazargan had expressed that, under an Islamic government, ‘a true guarantee for these rights would be found’ (Foucault [1979] 2002, 440). Writing of those who claim this is impossible, Foucault retorted that he could not see ‘in the name of what universality Muslims could be prevented from seeking their future in an Islam whose new face they will have to shape with their own hands’ (Foucault [1979] 2002, 440). To this point, Foucault’s intervention is consistent with his own previous opposition to universalisms that derive human rights from an essentialized account of human nature and with his reports from Iran the previous year. These had aroused much controversy in Paris for their largely uncritical support for the ‘political spirituality’ that marked the revolution. Among Foucault’s critics were the prominent orientalist Maxime Rodinson, an Iranian feminist writing under the pseudonym Atoussa H., and the former Maoists-turned–Cold War warriors Claudie and Jacques Broyelle, who attacked Foucault for praising the ‘distrust of legalism’ he witnessed in Iran and implicitly accused him of supporting the executions. According to the latter: When one realizes that all models on the Foucauldian scale carry the same anti- (bourgeois) democratic, anti-legalist, anti-judiciary label one has the right to protest in the name of deceptive advertising. These articles cannot be sold under the label of ‘defense of human rights’. (Afary and Anderson 2005, 249)

Foucault’s letter to Bazargan displays little of the exuberance for the ‘naked and massive will’ of the Iranian people that characterized his earlier dispatches.3 Against ‘the principle of sovereignty that only has to answer to itself’, Foucault defended the right of someone on the other side of the world to speak out against torture and abuse (Foucault [1979] 2002, 441). ‘This is not about interfering in the internal affairs of a state’, he wrote. Rather, those ‘who protested on behalf of a single Iranian tortured in the depths of a SAVAK prison were interfering in the most universal matter that exists’ (ibid.). Foucault’s language here echoed that of a recent U.S. Senate resolution condemning the post-revolutionary executions, which had been greeted with cries of hypocrisy in Iran given the U.S. administration’s role in supporting the Shah and training his dreaded intelligence service, the SAVAK. ‘When a government allows systematic executions without due process, that cannot be looked upon as purely an internal matter’, the resolution declared (JTA Archive 1979).4 Foucault implicitly acknowledged this background and the right of Iranians to be ‘irritated’ by it (Foucault [1979] 2002, 439). Yet, in stark contrast to his



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earlier critiques of universalism, Foucault designated the torture of a single individual ‘as the most universal matter that exists’ – and a justification for external intervention (Foucault [1979] 2002, 440). In his final statement on Iran in 1979, Foucault returned to this theme of bodily suffering. There is no reason to say one’s opinion has changed ‘when one is against severed hands, having yesterday been against the tortures of the SAVAK’, he wrote (Foucault [1979] 2002, 452). Here, Foucault subtly reframed his prior enthusiasm for the revolution in the apolitical, minimalist language of a newly ascendant human rights movement dedicated to preventing bodily suffering. For critics of Foucault’s earlier stance, it was his critique of the rule of law and his insistence on the entanglement of Enlightenment liberties and disciplinary power that had led him to celebrate the supposed archaism of the Iranian Revolution. The most influential and trenchant version of this critique is that of Janet Afary and Kevin Anderson, who argue that the ‘perplexing affinity’ between Foucault and ‘the anti-modernist Islamic radicals on the streets of Iran’ stems from their shared disdain for ‘modern liberal judicial systems’ (Afary and Anderson 2005, 13). Foucault’s interest in Iran, these critics argue, was the logical outcome of his inadequate appreciation of the Enlightenment. Afary and Anderson portray Foucault’s late work on Kant and Enlightenment as his response to the ‘the tragic outcome of the Iranian revolution’, his belated recognition that his earlier critiques of Enlightenment legal systems had led backwards to bloody spectacles of punishment whose gruesomeness rivalled the infamous scene of the execution of Damiens, the regicide that opens Discipline and Punish (Afary and Anderson 2005, 137; Foucault 1977b). It is true that in the wake of the Iranian Revolution Foucault devoted significant attention to the Enlightenment and also made increasingly frequent references to human rights in his political interventions and his public lectures at the Collége de France.5 Yet Afary and Anderson get the chronology wrong. Foucault delivered a major lecture on Kant and the Enlightenment, ‘What Is Critique?’, in May 1978, several months before his first trip to Iran (Foucault 2007a).6 His interest in the distinctly modern Enlightenment ‘critical attitude’ formed the background to his Iran writings, not a belated apology for them. We know also that Foucault and Bazargan discussed human rights soon after Foucault first arrived in Tehran, prior to the revolution. Therefore, if Iran shaped Foucault’s thinking on human rights (and I think that it did), this did not take the form of exuberance for lawless violence, shocked recoil before its consequence, and subsequent recognition of the eternal truth of Enlightenment values.7 In what follows, I position Foucault’s Iran writings on the cusp of two distinct human rights discourses. The first, championed by the Shah with no small dose of cynicism, was materialist and statist and portrayed development as the path to social and economic well-being. The

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second, advocated by a new generation of human rights non-governmental organizations, notably Amnesty International, was framed by its advocates as a defence of the spiritual aspects of the human person – of ‘dignity’, freedom of conscience and bodily integrity – from the power of the collective and the state.8 While Foucault had considerable sympathy for this second human rights discourse, understanding the place of human rights in his Iran writings requires attending to the lecture course he delivered immediately before travelling there, Security, Territory, Population (Foucault 2009).9 There, he developed two themes which, I argue, decisively shaped his reading of the events in Iran: the religious ‘counter-conduct’ and the ‘art of not being governed’ so much. MODERNIZATION AS ARCHAISM: HUMAN RIGHTS AND DEVELOPMENT IN PAHLAVI’S IRAN In an early dispatch from Iran, Foucault argued that opposition to the Shah was not a retrograde political stance but the rejection of ‘a modernization that is itself an archaism’ (Foucault, in Afary and Anderson 2005, 195). Here, I suggest that this should not be seen as a rejection of modernity tout court, as Foucault’s critics charge, but as a rejection of a teleological account of modernization, promoted by the Kennedy administration and embodied in the Shah’s ‘White Revolution’. Initiated in 1963, the Shah’s revolution involved land reform, privatization of factories and women’s suffrage (largely symbolic in a country run by an unelected hereditary monarch).10 Although the Shah’s rhetoric was progressive, even revolutionary, the White Revolution was conceived as ‘a bloodless “revolution from above” ’ that would fulfil middle-class expectations and forestall ‘bloody revolution from below’ (Ansari 2001, 2). The Shah characterized his opponents as ‘black reactionaries’ (the clergy) or ‘red subversives’ (the Communists) and promoted himself as the agent of revolutionary modernization. The religious authorities were major landowners and greatly resented both the attack on their economic power base and the state’s usurpation of their control over women.11 The conservative Ayatollah Khomeini denounced the reforms as ‘anti-Islamic’ and ‘intended for the break-up of Muslim families’ (Sedghi 2007, 128). The Shah – a hereditary monarch who ruled with brutal paternalism, and who once remarked to a female journalist that, despite ample opportunity, women had ‘never even given history one good cook’ – was an unlikely liberator (ibid., 128). Yet Western liberal feminists were impressed by his reforms. Betty Friedan, for instance, was invited to Iran in 1974, interviewed the Shah and praised the White Revolution in a long piece in Ladies Home Journal (Burke 2015, 48).



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Outside Iran, the U.S. Foreign Policy establishment celebrated Pahlavi as the quintessential ‘modernizing monarch’, a term popularized by Samuel Huntington to reconcile the perpetuation of U.S.-backed monarchical regimes with the demands of the modern world (Shannon 2011, 16). In 1968, Huntington resisted the view that kings were ‘doomed relics’ of a fading era, arguing that the United States could not afford to see monarchical Cold War allies replaced by ‘revolution, chaos, instability, or radical nationalist regimes’ (Huntington [1968] 2006, 151–153). If monarchies were to survive, he argued, they must follow the path of the nation-building European monarchs of the 17th and 18th centuries and carry out a ‘royal revolution from above’ (ibid., 154). This, however, would lead to a paradox: however conservative the monarch’s opponents were, Huntington argued, they would use the language of constitutionalism, democracy and rights to contest his modernization programme. Therefore, far from requiring greater democracy and political liberalization, modernization would require a leader capable of refusing such demands and pushing ahead against all dissent. The Shah’s reforms, for instance, were accomplished only when he ‘evaded the constitution and got rid of Parliament’, Huntington wrote (Huntington [1968] 2006, 162). Pahlavi, in Henry Kissinger’s words, was a ‘tough, mean guy’, capable of imposing a programme friendly to U.S. interests (Prashad 2013, 34). At the time Foucault was calling for the political theory to ‘cut off the head of the King’, modernization theorists were advocating strong, centralized states to forestall the violence and instability that would result from the breakdown of ‘traditional society’. It was this modernization that Foucault rejected in 1978 as a ‘dead weight’. Foucault had epistemological and political grounds for rejecting modernization, neither of which amounted to rejections of modernity tout court. Modernization theory presupposed the linear, teleological development he had criticized in his genealogical writings, assuming a single path to modernity, along which the ‘underdeveloped world’ had simply fallen behind. A commitment to this linear history prevented U.S. policymakers from recognizing the seriousness of Islamic opposition to the White Revolution. Speaking of the Shah’s ‘intensive political social revolution from above’, the Middle East specialist on the U.S. National Security Council remarked: ‘Tribal dissidence and opposition of Mullahs seem vestigial remnants of yesterday’s business, not today’s’ (Popp 2008, 93). It was against such a teleological conception of history that Foucault had suggested, much earlier, the need to ‘record the singularity of events outside of any monotonous finality’ (Foucault 1977a, 139). As Huntington stressed, the model for Iran’s modernization was the centralizing European administrative state of the 17th and 18th centuries. In Security, Territory, Population, Foucault had described these as ‘police states’, which sought to increase the forces of the state and secure order

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through a new attention to the life of a population. In a development that he elsewhere calls ‘biopolitics’, matters of health, demography and sanitation entered the calculations of state power. A new model of authoritarian, developmental sovereignty was foregrounded when the United Nations held its first Conference on Human Rights, in Tehran in 1968, on the 20th anniversary of the Universal Declaration of Human Rights (UDHR). The Shah captured the mood, stressing the need to adjust the principles of the UDHR to new, postcolonial, times: There was a time when human rights meant only the equality of individuals in politics and before the law. But in our time, political rights without social ones, legal justice without social justice, and political democracy without economic democracy no longer have any real meaning. (cited in Shannon 2011, 19)

Undoubtedly, there was a real cynicism in this wealthy, U.S.-backed heredity monarch declaring himself the inheritor of the anti-colonial revolutions. Nonetheless, in 1968, Pahlavi’s comments reflected a new assertiveness on human rights issues among the leaders of newly decolonized states, who prioritized sovereignty, nation-building and development over civil and political rights. This vision accorded with that promoted by the Soviet delegate during the drafting of the UDHR. Alexei Pavlov had rejected natural law, arguing that under feudalism, ‘men had not been born free and equal’ and this proved that equality of rights ‘was clearly not by the fact of birth but by the social structure of the state’ (in Morsink 1999, 291). During the drafting of the UDHR, Christian delegates strongly opposed this position. Lebanon’s Charles Malik led the charge to defend a personalist account of the human as a spiritual being created in the image of God, and he warned of the ‘deadly danger’ that in our enthusiasm for economic and social justice, we forget that ‘man cannot live by bread alone’ (Malik 1951, 279). Like Malik, figures like Mehdi Bazargan mobilized a spiritually charged human rights discourse against the Shah’s authoritarian modernizing vision, which combined the demand for absolute obedience with the promise of material subsistence. The latter was what Foucault termed ‘pastoral power’, which governs the individual in his or her daily life and guides him or her to salvation. In Security, Territory, Population, Foucault had isolated the problem of governing, which was originally located not in the polis but in the oikos, or household, and traced its development, through the Christian pastorate to the threshold of the modern state.12 Unlike political power, pastoral power, which modelled governing on the shepherd tending his flock, was characterized by subordination, personal dependence and obedience. Nonetheless, it was also a relation of care as the salvation at stake in pastoral power is ‘first of all essentially subsistence’ (Foucault 2008, 126). Just before



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his trip to Iran, Foucault identified the ‘pastoralization of power in the Soviet Union’, where the party conducts the daily lives of individuals, securing obedience through terror (Foucault 2009, 201). In the Shah’s Iran, as in the Soviet Union, the state terror that aimed to secure obedience subsisted with a promise of salvation that took material form. The ‘Great Civilization’ Pahlavi promised was primarily an earthly paradise. In a speech to farmers in 1963, he promised, ‘Your income should be such that you and your family are full. That you will have smart clothes. That you will have a nice house’ (Ansari 2001, 13). This vision had little place for civil and political rights, due process or equality before the law. Police, Foucault stressed, is a nonjudicial form of rule in which the king acts directly on his subjects: ‘the direct governmentality of the sovereign qua sovereign’ (Foucault 2009, 339). To the extent that ‘Iran positioned itself as both the model and the spokesperson for the new collective rights ideology’ (Burke 2008, 286), Foucault rejected Pahlavi’s statist, developmental conception of human rights for which right was undoubtedly the king’s right. COUNTER-CONDUCTS In his letter to Bazargan, Foucault remarked that the right of a government to defend the people burdens it with heavy responsibilities. In identifying the specificity of pastoral power, Foucault identified ‘equally specific movements of resistance and insubordination’ that arose along with it (Foucault 2009, 194). Governmental rationalities, he claimed, were accompanied by forms of resistance, or ‘counter-conducts’, which utilized the same elements to open spaces of freedom for the governed; ‘the art, project, and institutions for conducting men’, as he put it, ‘and the counter-conducts that were opposed to this, developed in correlation with each other’ (ibid., 355). Thus, the counter-conducts that emerged on the borders of the pastorate relied on the same elements as Christianity itself – on eschatological expectations, the formation of communities and a return to scripture to challenge the power of the Church (ibid., 354). In the late 17th and early 18th centuries, these conflicts of conduct moved from the religious sphere to the borders of the political, as those who exercised sovereign power increasingly took on new governmental responsibilities. Foucault travelled to Iran having just identified the religious and spiritual counter-conducts that opposed the Christian Church as models for the distinctly modern critical attitude. Arriving in Iran in a context in which religion was mobilized to contest the Shah’s repression, he expressed astonishment at the similarities between Shi’ite Islam, which he framed as an ‘oppositional’ force in Iran, and the late-medieval Christian counter-conducts that

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challenged feudalism, hierarchy and the state. In Security, Territory, Population, he had described ‘great popular movements’ like the Anabaptists as at once religious and political and called for rethinking the relation of religion and politics (Afary and Anderson 2005, 187). In Tehran, Foucault turned his attention to Karl Marx’s critical account of religion. ‘One of the statements I have heard repeatedly during my recent stay in Iran was that Marx was really wrong to say, “Religion is the opium of the people” ’, Foucault told an interviewer (Afary and Anderson 2005, 207). Agreeing with these critics of Marx, he praised the role of Shi’ism in oppositional political consciousness and mobilization. This critique of Marx’s critique of religion echoed that of Ali Shariati, the Sorbonne-educated Iranian sociologist of religion who died two years before the revolution and whom Foucault described as ‘a shadow that haunts all political and religious life in Iran today’ (ibid.). In Marxism and Other Western Fallacies, Shariati sought to contest what he depicted as the modern view that religion cannot be a progressive force (1980, no page). He criticized Marx for ‘identifying the Messiah with the Pope’ and scorning the clerical classes while ignoring the ‘hundreds of thousands of martyrs’ in the history of Christianity who resisted feudalism, the state and the imperialism of Rome (ibid.). When Marx attacks religion, Shariati argued, he turns to its most degraded and superstitious forms; he seems not to have noticed ‘one of the most basic doctrines of Judaism, Protestant Christianity, and Islam alike: God’s assignation of free will to man, that he might struggle in his earthly life and search for his own liberation’ (ibid.). Shariati distinguished between a ‘Red Shi’ism’ of struggle and resistance to oppression and a ‘Black Shi’ism’, under the influence of monarchic and clerical power. Shariati characterized these as the Islam of the oppressed, on the one hand, and ‘the government’s Islam’ of rules and prejudice, on the other. ‘Shi’ism begins with a “No” ’; he wrote, ‘a “No” which opposes the path chosen by history, and rebels against history’ (Shariati 1977, no page). In Shariati’s version of Islam, as in Foucault’s religious counter-conducts, this ‘No’ to worldly power and official religion mobilizes the elements of religion to develop new ways of being governed. Following Shariati, Foucault saw the possibility that, in Iran as in early Christianity, religion could be a critical attitude, a force of ‘voluntary insubordination’ wielded against a governmental power that demanded absolute obedience. HUMAN RIGHTS AS COUNTER-CONDUCTS? CARTER, LIBERALISM AND THE POLITICS OF INTERVENTION Despite this resonance, Foucault described the events in Iran in orientalist terms, as a ‘struggle to present a different way of thinking about social and



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political organization, one that takes nothing from Western philosophy, from its juridical and revolutionary foundations’ (in Afary and Anderson 2005, 186).13 In a public dialogue in Iran, Foucault suggested that Western intellectuals had recently experienced the ‘interesting and tragic’ disappointment of their hopes in the Vietnamese struggle against a ‘vicious American imperialism’ and in the revolutionary aspirations of Third Worldism (ibid., 185). In Iran, he saw the possibility of a ‘new beginning’, after this great disappointment. Far from a new beginning, unrelated to Western juridical thought, Bazargan’s human rights programme echoed the dominant Western response to these disappointments: an interventionist politics of human rights that broke with the statist, developmental vision prominent at the Tehran human rights conference and drew on theological resources to articulate a spiritual vision of the individual person. For key Western defenders of this new human rights – Jimmy Carter no less than Amnesty International – human rights was a moral discourse stemming from a deep Christian faith. This politics of human rights reverberated in Iran. In 1973, Amnesty International had called for an inquiry into the country’s use of torture; two years later it released a report declaring ‘no country in the world has a worse record in human rights than Iran’ (in Foran 2005, 77). In opposition to the positivist social science underpinning modernization, the human rights report inaugurated a new regime of truth – one that highlighted individual testimony and vivid narratives of bodily suffering. This generated a claim to transcend politics and a privileging of the tortured body – what Elaine Scarry famously dubbed ‘the body in pain’ – as the prototypical site of human rights abuse (Scarry 1985). The universality of bodily suffering, it was believed, could be readily understood without the need for historical or political contextualization. Thus, Amnesty International’s 1975 report on Iran, for instance, catalogues numerous individual cases of torture and extrajudicial killing but makes no reference to the role of the United States and its oil companies in sponsoring the Shah’s repression. Despite its apolitical rhetoric, this 1975 report announces the NGO’s new goal: ‘to shape governmental conduct in the future’ (Amnesty International 1975). In Iran, in a context of state-run modernization carried out by a torturous regime, the circulation of this human rights language inspired middle-class sections of the opposition: Iranian students in the United States began to use human rights to criticize the Shah, and groups like Bazargan’s human rights committee were founded inside Iran.14 President Carter’s election also raised hopes that the United States would take a hard line with the Shah, but Iran’s strategic position as a major exporter of oil and a U.S. client state that shared a territorial border with the Soviet Union served to mute Carter’s criticisms. When the Shah visited Washington in 1977, students in Iran held demonstrations demanding that he put Carter’s human rights programme into effect

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(Moin 1999, 185). Inside the White House, human rights were off the agenda, and Iranian students protesting on the lawns outside were met with tear gas. A month later Carter visited Iran, declaring in a New Year’s Eve toast: ‘The cause of human rights is . . . shared deeply by our people and by the leaders of our two nations’ (Carter 1977). Leading up to the revolution, the language of human rights exhibited what Foucault termed the ‘tactical polyvalence of discourses’, such that the effect of identical formulations differed ‘according to who is speaking, his position of power, (and) the institutional context in which he happens to be speaking’ (Foucault 1990, 100). In the lecture course immediately prior to his trip to Iran, Foucault addressed the diversity of political philosophies expressed in the language of human rights and distinguished two forms of counter-conduct that challenged the police state. First, juridical counter-conducts used contract theory and natural law to secure a realm of natural freedom (Foucault 2008, 9). Second, in the 18th century, there emerged a new governmental rationality internal to the practice of governing: liberalism, which Foucault described as critique that tells the state that it always risks governing too much. Central to liberalism was the production of freedom, which was no longer conceived as a natural exterior to state power but was internalized as the necessary support of liberal governmentality. In regard to contemporary human rights claims, Foucault suggested, ‘we would only need to look at where, in what countries, how, and in what form these rights are claimed’ to see that sometimes what is at stake is a juridical assertion of natural rights derived from Rousseau and at others an assertion of the independence of the governed (Foucault 2008, 42). While Foucault was consistently critical of the first form, insomuch as it was grounded upon an idealized human nature, he expressed considerable sympathy for the economic liberal attempt to open up spaces of independence for the governed. In 1981, in the wake of the Iranian Revolution, he credited organizations like Amnesty International with the creation of a right exercised by ‘the community of the governed’ (Foucault [1979] 2002, 475). Speaking at the United Nations in Geneva, he argued (in language similar to that of his letter to Bazargan) that ‘the suffering of men . . . grounds an absolute right to stand up and speak to those who hold power’ (ibid., 475). Foucault credited Amnesty International, Terre des Hommes and Médecins du Monde with creating this new right of ‘private individuals’ to effectively intervene in the sphere of international policy and strategy (ibid.). If understanding what is meant by human rights requires a clear examination of the context of rights claims and their speakers, as Foucault suggests, how did Mehdi Bazargan understand human rights? Like Ali Shariati, Bazargan was a member of Iran’s Freedom Party and representative of a strand of Islamic liberal discourse which drew on the Western revolutionary



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heritage to develop a critique of the Shah’s authoritarian statism. Bazargan’s distinctive account of human rights relied on natural law to contest the absolutist claims of the sovereign and open up a realm of human freedom, which included the free market (see Barzin 1994, 95). Bazargan also turned to the prophetic traditions to articulate a distinctively democratic vision of pastoral power. In an essay on religion and freedom, he writes: ‘The hadith that states: “Every one of you is a shepherd (of the community) and all are responsible for their dependents and herd” . . . announced the principle of democracy “sovereignty of the people over the people” eleven centuries before Europe’ (Bazargan 2004). Yet, while Bazargan derives an account of democratic sovereignty from the hadith on responsibility, the hadith articulates a governmental or oikonomic vision, modelled not on the state but on the household with its strict and gendered division of roles. ‘Every one of you is a shepherd and is responsible for his flock’, it reads. The leader of people is a guardian and is responsible for his subjects. A man is the guardian of his family and he is responsible for them. A woman is the guardian of her husband’s home and his children and she is responsible for them. The servant of a man is a guardian of the property of his master and he is responsible for it. Surely, every one of you is a shepherd and responsible for his flock. (Hadith on Responsibility, 6719)

Emblematizing that return to scripture to challenge religious authorities that Foucault had described in his work on counter-conducts, Bazargan consistently reread religious texts to resist pastoral demands for obedience. Stressing that freedom is essential to religion, he often quoted the Surat Al Baqara from the Qu’ran, which reads ‘there is no compulsion in religion’ (Qu’ran, 2: 256). Relating this to women’s dress, he wrote: ‘The chador and scarf which are imposed by force and threats on women’s heads are a hundred times worse than going uncovered’ (in Chehabi 1985, 94).15 In Bazargan’s case, the ‘distrust of legalism’ that struck Foucault as important in Iran was not, as his critics have implied, a justification for extrajudicial killings. Rather, Bazargan criticized the prominence of Islamic jurisprudence (feqh) and the role of clerical authorities, and the concomitant neglect of Islamic ethics (see Chehabi 1985, 93), in terms that must have been attractive to Foucault as his own work increasingly turned to the ethics of the self.16 Bazargan’s liberal vision of Islamic government clearly influenced Foucault, who speculated that ‘Shi’ite Islam exhibits a number of characteristics that are likely to give the demand for “Islamic government” a particular coloration’ – among them, ‘an absence of hierarchy in the clergy’ and a focus on purely spiritual authority, along with the role that the clergy must play in ‘echoing and guiding’ in order to maintain its influence. Foucault suggested that what Iranians mean by ‘Islamic government’ is a government

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in which the religious centres that played a key role in contesting the Shah will continue to be active in politics and in which this politics will have a spiritual dimension that had been lost in the West. Less attentive than was Ali Shariati to the Black Shi’ism of the clergy, Foucault assured his readers that ‘by “Islamic government” nobody in Iran means a political regime in which the clerics would have a role of supervision or control’ (Afary and Anderson 2005, 206). Foucault’s assumptions about Islamic government bore little resemblance to the post-revolutionary Islamic republic, where Ayatollah Khomeini was soon proclaimed ‘supreme leader’ – a newly created position that embodied both the highest religious and political authority in the country. Whatever Bazargan’s own views on freedom and democracy, Khomeini made clear when appointing him prime minister that his Islamic government would be premised on pure, pastoral obedience: ‘Through the guardianship [velayat] that I have from the holy lawgiver [the Prophet], I hereby pronounce Bazargan as the ruler, and since I have appointed him, he must be obeyed’, Khomeini said. ‘The nation must obey him. This is not an ordinary government. It is a government based on the sharia [law]. Opposing the government means opposing the sharia of Islam. . . . Revolt against God’s government is a revolt against God’. (Phillips 2012, 412)

Bazargan himself would soon fall foul of this warning. As prime minister, he pursued a classically liberal agenda and was ultimately forced to tender his resignation, only months after Foucault’s letter. From that point, the Islamic republic was consolidated as a theocracy starkly at odds with the ‘Islamic government’ in which Foucault had placed his hopes. Along with extrajudicial executions of opponents – including not only ex-Shahist officials but also Communists and secular revolutionaries – the immediate post-revolution period saw the imposition of a strict sexual morality, including enforced veiling, executions of ‘adulterous women’ and prostitutes and severe legal punishments for male homosexual acts. Women’s suffrage was abolished, as were the family planning laws which had allowed women to initiate divorce, and women were excluded from the workforce and pushed back into the household (Sedghi 2007). Since that time, the right to intervene to prevent suffering, which Foucault articulated so forcefully in the wake of the Iranian Revolution, has also departed from his own vision and taken a militarized form. Today, the argument that Western states have a responsibility to prevent human rights abuses and to protect women and girls from oppression has become a commonplace. As one humanitarian war blurs into another in a permanent state of exception, the bracketing of systemic questions and historical contexts from human rights advocacy has tended to obscure historical forms of Western



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intervention (including direct colonialism) and their implication in existing abuses. In assuming that Western states and human rights organizations have a ‘responsibility to protect’, this new politics of human rights replicates both the paternalism of colonial rule and the telos of modernization theory, for which the West (now coded as ‘civilized’ or ‘humanitarian’ rather than ‘developed’) must guide the non-West along the predetermined path of progress. By 1979, when Foucault declared modernization to be an archaism, the U.S. government had distinctly cooled on the massive investments it was making in supporting strong, centralized client states. As one U.S. official wrote in a 1966 memo to the modernization theorist Walt Rostow, the United States is no longer willing ‘to finance the luxury of clinging to some poorly-understood, vaguely defined, half-Marxist, economic ideas that obviously don’t get results’ (in Popp 2008, 97). As the colonies seized on the rhetoric of modernization and self-determination, and began to demand economic redistribution and greater control of their own economies, the United States shifted its focus to neoliberal, free market reforms and set out to undermine the power of postcolonial states through new forms of economic intervention. It was in this context that liberals in Europe and the United States increasingly seized on the language of human rights and in which Mehdi Bazargan articulated a vision of an Islamic government that would secure human rights, foster individual and familial responsibility and defend the private sector from state intervention. Foucault’s Iran writings sit on the cusp of a transition from a materialist, statist human rights discourse, cynically upheld by Iran’s authoritarian monarch, to a new individual human rights movement that sought to resurrect a spiritual account of the liberty of the human person. Today, if there is something to be retrieved from these writings, it is not Foucault’s orientalist account of Iran as the absolute other that had rediscovered a spirituality lost in the West nor his interpretation of Islam’s present through the lens of Christianity’s past. In the face of the consolidation of both a repressive theocratic regime in Iran and a human rights movement that recasts revolutionary aspiration as ‘totalitarian’ while licencing ‘humanitarian’ state violence, what remains is Foucault’s continuing refusal to disavow revolt itself (Foucault [1979] 2002, 452). NOTES 1 This chapter is based on a public lecture presented at the Cabaret Voltaire, Zurich, in October 2014. I thank Svenja Goltermann for the invitation and Kijan Espahangizi, Jonathan Pärli and Lucia Hermann for hospitality and helpful conversations during my stay in Zurich. Thanks also to Ihab Shalbak and Thanos Zartaloudis for astute feedback on previous drafts.

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2 These are U.S. figures from the Javits Resolution. 3 English translations of these dispatches are collected in Afary and Anderson (2005). 4 The statement was made by U.S. senator Byrd. 5 For further accounts of Foucault’s use of human rights language, see Whyte (2012), Golder (2015) and Patton (2005). 6 The lecture was given on 27 May 1978 to the French Historical Society. 7 Behrooz Ghamari-Tabrizi offers a far more sympathetic account of Foucault’s Iran writings and their relation to his account of the Enlightenment. I regret that Ghamari-Tabrizi’s book, an insightful study, was published after the submission of this chapter and that I was unable to incorporate and reflect on its argument while preparing this piece; see Ghamari-Tabrizi (2016). 8 Amnesty International’s founder Peter Benenson portrayed the organization’s project in terms of individual spiritual transformation rather than collective action. In a theologically charged letter, he wrote: ‘When each citizen is individually on the road to the Kingdom, then I believe that there will be a just society on earth without need for the intervention of Parliament’ (Buchanan 2002, 582). 9 On Foucault’s relation to the new human rights movement, see Whyte (2012). 10 See Shannon (2011). 11 See Sedghi (2007). 12 Space constraints prevent me from considering Giorgio Agamben’s compelling criticism of this pastoral derivation of government. See Agamben (2011). 13 I use ‘orientalist’ here in the sense used by Edward Said to refer to mode of knowledge that establishes a basic ontological and epistemological distinction between ‘the Orient’ and ‘the Occident’, and, in doing so, establishes the authority and dominance of ‘the West’ over ‘the Orient’. See Said (1978). 14 See Shannon (2011, 21). 15 This is more commonly interpreted to mean that one cannot be compelled to convert to Islam. 16 Atoussa H.’s letter also manifests a ‘distrust of legalism’: ‘The Western liberal left needs to know that Islamic law can become a dead weight on societies hungering for change’ (in Afary and Anderson 2005, 210). Afary and Anderson use this as the epigraph to their book.

BIBLIOGRAPHY Afary, Janet, and Kevin B. Anderson. 2005. Foucault and the Iranian Revolution: Gender and the Seductions of Islamism. Chicago: University of Chicago Press. Agamben, Giorgio. 2011. The Kingdom and the Glory: For a Theological Genealogy of Economy and Government. Translated by Lorenzo Chiesa (with Matteo Mandarini). Stanford, CA: Stanford University Press. Amnesty International. 1975. Annual Report 1974/75. London: Amnesty International Publications. Ansari, Ali M. 2001. ‘The Myth of the White Revolution: Mohammad Reza Shah, “Modernization” and the Consolidation of Power’. Middle Eastern Studies 37 (3): 1–24.



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Asad, Talal. 1994. ‘Ethnographic Representation, Statistics and Modern Power’. Social Research 61 (1): 55–88. Accessed 12 January 2017. Barzin, Saeed. 1994. ‘Constitutionalism and Democracy in the Religious Ideology of Mehdi Bazargan’. British Journal of Middle Eastern Studies 21 (1): 85–101. Accessed 12 January 2017. Bazargan, Mehdi. 2004. ‘Religion and Liberty’. Oxford Islamic Studies Online. http://www.oxfordislamicstudies.com.ezproxy.uws.edu.au/article/book/islam9780195116212/islam-9780195116212-chapter-7?_hi=3&_pos=1. Accessed 12 January 2017. Buchanan, Tom. 2002. ‘The Truth Will Set You Free: The Making of Amnesty International’. Journal of Contemporary History 37 (4): 575–597. Burke, Roland. 2008. ‘From Individual Rights to National Development: The First UN International Conference on Human Rights, Tehran, 1968’. Journal of World History 19: 275–296. Accessed 12 January 2017. Burke, Roland. 2015. ‘Competing for the Last Utopia? The NIEO, Human Rights, and the World Conference for the International Women’s Year, Mexico City, June 1975’. Humanity: An International Journal of Human Rights, Humanitarianism, and Development 6 (1): 47–61. Accessed 17 December 2016. Carter, President Jimmy. 1977. ‘Toasts of the President and the Shah at a State Dinner’. Tehran, Iran. No page. http://www.presidency.ucsb.edu/ws/?pid=7080. Accessed 12 October 2016. Chehabi, H. E. 1985. ‘Society and State in Islamic Liberalism’. State, Culture, and Society 1 (3): 85–101. Accessed 11 January 2017. Foran, John. 2005. Taking Power: On the Origins of Third World Revolutions. Cambridge: Cambridge University Press. Foucault, Michel. 1977a. ‘Nietzsche, Genealogy, History’. In Language, Counter-Memory, Practice: Selected Essays and Interviews, edited by Donald F. Bouchard. Translated by Donald F. Bouchard. St. Louis, MO: Cornell University Press, 139–164. Foucault, Michel. 1977b. Discipline and Punish: The Birth of the Prison. Translated by Alan Sheridan. London: Penguin Books. Foucault, Michel. 1988. Power/Knowledge: Selected Interviews and Other Writings, 1972–1977, edited by Colin Gordon. New York: Pantheon Books, a division of Random House. Foucault, Michel. 1997. Society Must Be Defended: Lectures at the Collège de France, 1975–1976, edited by Mauro Bertani and Alessandro Fontana. New York: Picador/Palgrave Macmillan. Foucault, Michel. 1990. The History of Sexuality: An Introduction, Vol. 1. Translated by Robert Hurley. New York: Knopf Doubleday Publishing Group. Foucault, Michel. [1979] 2002. Power: The Essential Works of Michel Foucault 1954– 1984, edited by James D. Faubion. Translated by Robert Hurley. London: Penguin. Foucault, Michel. 2007a. ‘What Is Critique?’ In The Politics of Truth, edited by Sylvere Lotringer. Translated by Lysa Hochroth. Los Angeles, CA: Semiotexte/ Smart Art, 41–82. Foucault, Michel. 2007b. Security, Territory, Population, 1977–78, 2nd ed., edited by Arnold I. Davidson and Francois Ewald. Basingstoke: République Française.

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Foucault, Michel. 2008. The Birth of Biopolitics: Lectures at the Collège de France, 1978–1979, edited by Arnold I. Davidson, Allessandro Fontana and Francois Ewald. New York: Palgrave Macmillan. Foucault, Michel. 2009. Security, Territory, Population: Lectures at the Collège de France, 1977–1978, edited by Michel Senellart. New York: Picador/Palgrave Macmillan. Ghamari-Tabrizi, Behrooz. 2016. Foucault in Iran: Islamic Revolution after the Enlightenment. Minneapolis: University of Minnesota Press. Golder, Ben. 2015. Foucault and the Politics of Rights. Stanford, CA: Stanford University Press. Hadith on Responsibility. n.d. Sahīh al-Bukhārī 6719. Hayek, F. A. 2007. The Road to Serfdom: Text and Documents – The Definitive Edition, Vol. 2, edited by Bruce Caldwell. Chicago, IL: University of Chicago Press. Huntington, Samuel P. [1968] 2006. Political Order in Changing Societies. Yale: Yale University Press. JTA Archive. 1979. State Department Expresses Concern over Khomeini’s Attacks on the United States, Javits and His Wife. Jewish Telegraphic Agency, 22 May. http://www.jta.org/1979/05/22/archive/state-department-expresses-concern-overkhomeinis-attacks-on-the-united-states-javits-and-his-wife#ixzz3Fynz5Aj7. Accessed 12 January 2016. Malik, Charles. 1951. ‘Human Rights in the United Nations’. International Journal 6 (4) (Autumn): 275–280. Moin, Baqer. 1999. Khomeini: Life of the Ayatollah. London: I. B. Tauris. Morsink, Johannes. 1999. The Universal Declaration of Human Rights: Origins, Drafting, and Intent. Philadelphia: University of Pennsylvania Press. Patton, Paul. 2005. ‘Foucault, Critique and Rights’. Critical Horizons 1 (6): 267–287. http://www.tandfonline.com/doi/abs/10.1163/156851605775009456. Accessed 12 January 2016. Phillips, Tomas B. 2012. Queer Sinister Things: The Hidden History of Iran. n.p.: Lulu.com. Popp, Roland. 2008. ‘An Application of Modernization Theory during the Cold War? The Case of Pahlavi Iran’. The International History Review 30 (1) (March): 76–98. Prashad, Vijay. 2013. The Poorer Nations: A Possible History of the Global South. London: Verso Books. Said, Edward. Orientalism. 1978. London: Routledge & Kegan Paul. Scarry, Elaine. 1985. The Body in Pain: The Making and Unmaking of the World. New York: Oxford University Press. Sedghi, Hamideh. 2007. Women and Politics in Iran: Veiling, Unveiling, and Reveiling. New York: Cambridge University Press. Shannon, Matthew. 2011. ‘ “Contacts with the Opposition”: American Foreign Relations, the Iranian Student Movement, and the Global Sixties’. The Sixties 4 (1) (June): 1–29.



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Shariati, Ali. 1977. ‘Full Text of “Ali Shariati Red and Black Shi’ism” ’. Digital Internet Archive. https://archive.org/stream/AliShariatiRedAndBlackShiism/Ali%20 Shari’ati_Red%20and%20Black%20Shi’ism_djvu.txt. Accessed 12 January 2017. Shariati, Ali. 1980. Marxism and Other Western Fallacies. Translated by R. Campbell. Berkeley, CA: Mizan Press. Whyte, Jessica. 2012. ‘Human Rights: Confronting Governments? Michel Foucault and the Right to Intervene’. In New Critical Legal Thinking: Law and the Political, edited by Matthew Stone, Illan rua Wall and Costas Douzinas. Abingdon: Routledge, 11–31.

Chapter 3

Actor-Network Theory and the Critique of Law Kyle McGee

1 Actor-network theory (ANT) and the variety of intellectual practices loosely gathered under the label of critical theory – deriving from the traditions of Marxism, phenomenology, structuralism, deconstruction and others – enjoy a complicated relationship riven by scepticism on both sides. In Bruno Latour’s influential formulation, ANT is a ‘sociology of associations’ that abjures the lofty, often concealed explanatory devices frequently found in critical theory (the unconscious, class and habiti, the structure of writing, social relations and ‘society’ itself) in favour of witnessable translations, mediations and performances.1 But ANT does not claim that these devices are unreal; on the contrary, it affirms their reality but clarifies that they are, like any actor, only as real as their connections to other actors. By multiplying their connections, they amplify their spheres of influence but always in severe dependence on their successors. As beings circulating in academic texts, their reality is not particularly robust. But when other actors mobilize them to do things in practice – in the arts, in psychiatry, in journalism, in engineering, in government, in protest and so on – they increase in their degree of reality, existing with more intensity. To comprehend them means patiently tracking the laborious, costly, successive transformations through which they take on the metaphysical properties other theories dish out freely: identity, stability, durability, definition and so on. In this sense, ANT is not so much ‘postcritical’ as ante-critical. ANT ‘follows the actors’ through their laboratory research practices, technological projects, legal ordeals and other trajectories, which unfailingly cross conventional disciplinary and epistemic boundaries, to trace the associations and entanglements that, in the hands of critical theory, are too quickly subsumed under familiar categories. ANT’s fundamental wager is that a more compelling 45

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account of ‘social’ phenomena, that is, one that adds reality rather than diminishing it, can be obtained by describing such transformations, by taking the reports of the actors as seriously as possible rather than resorting to hidden causal mechanisms in which they dissolve. For this reason, ANT requires only a light, mobile infralanguage – associations, mediations, tran­slations – instead of a weighty, powerful metalanguage for interpreting and displacing the actors’ own movements. The only metalanguages that count belong to the actors, not the theorist. We do not know in advance what society or science or law or politics is; if we supposed we knew, we would find only our suppositions reflecting back on us.2 ANT and critical theory are normally considered utterly incongruous: indeed, ANT is described with increasing frequency as postcritical precisely because it assembles and constructs rather than debunks and denounces; is disposed to close-surface reading practices prolonging a text or meaning trajectory and dubious of deep causal explanations or diagnoses uttered by authoritative experts stationed above the fray; and is persuaded by ethnographically thick, empirically rich, narrativizing and historicizing descriptions populated with weak players followed by modest fellow-travellers.3 But while actor-network theorists frame critical theory as a misguided scheme to reduce phenomena out of existence by invoking generic social causes without paying the cost of collecting and arranging the agencies constituting those causes, critical theorists frame ANT as a reactionary effort to justify the existing sociopolitical order of things through descriptive techniques bereft of any ability (or desire) to intervene in the circuits of power.4 ANT and other allegedly postcritical approaches are, for the critic, emblematic of the broader decline of the political – testimony to the fact that the West has resigned itself to neoliberal zombiedom, abandoning any ambition to formulate large-scale political visions, and has thus become unworthy of any mobilizing political idea. This mutual distrust is present not only in the field of science and technology studies (STS) from which ANT emerged (critical sociologists of the sciences, such as political-economic critic Philip Mirowski and moral critic Steve Fuller, are vocal in their condemnations of ANT)5 but also in political ecology, cultural anthropology, sociology and the philosophy of the social sciences, among others. Whatever the merit of the claims, on both sides, of incommensurability in these controversies, this chapter shows why the relation of ANT to the critique of law need not produce the sort of arrested dialectic that has befallen certain trajectories in STS and other fields. Indeed, they may mutually enrich one another in unexpected ways. 2 To disable the spectre of incommensurability requires immediately shifting onto political terrain for two reasons: first, critical theory (and critical legal



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studies [CLS] particular) views itself as a political project, so a competing or complementary ANT-based account of legal operations will carry no weight with it absent a clarification of the political stakes; and, second, even for actor-network theorists, the law’s intersections with politics cannot be ignored in accounting for the strange beings of law. Accordingly, the emancipatory politics of the critical tradition (which claims that contradictions between institutionalized appearances and unacknowledged or dissimulated realities should be challenged to bring equality and justice to victims of structural oppression) and the compositionist ‘cosmopolitics’ with which ANT has become associated (which proposes the progressive composition of a common world) should be surveyed. Clearly, these politics are not necessarily consistent. The notion of a common world seems to imply a kind of subjugation no different from the oppression against which legal critique rails. Who or what determines commonality? Whose standards apply? And what of the cosmologies of those opposing commonality as such, for whom singularity, difference and opposition are existential values?6 Is not the phantom of a ‘common world’ precisely the favoured imperialist tool of the moderns, justifying white-male-Northern privilege under the cover of mononaturalism and its offspring, multiculturalism? And cosmopolitics has its own questions for the politics of critique. By departing from the actors to invent a topology equipped with a concealed dimension of depth, does legal critique not ‘withdraw . . . from inquiry the main phenomenon of social science: the very production of place, size, and scale’?7 Such withdrawal has political consequences because place, size and scale are political instruments integral to, and co-produced with, the inequalities and injustices that legal critique purports to challenge. For ANT, reliance on social aggregates (e.g. symbolic order, neoliberalism, biopolitics) to explain particular legal phenomena can yield no emancipatory effect because, however radical the rhetoric, what has been achieved is only the premature unification of the associations that have been aggregated. By contrast, ANT wants to trace each association, extend each divergent frame of reference into the next and multiply agencies and mediators. Rather than taking up sides in advance in controversies about fundamental topics – what society is and is made of, what law is and is made of – ANT witnesses their proliferation. Where critique is restless to achieve the solid ground of decision and judgement, the kind of certainty we may associate with the true believer or fundamentalist in politics, religion, science and so on, ANT survives on perplexities. But this is a productive perplexity because it allows ANT to detect the movements that account for inequalities and injustices, without unduly canonizing a transient architecture of associations in a static global aggregate. Such, at least, is the claim of ANT’s proponents. In the same stroke, however, ANT arguably also deprives itself of means to condemn those inequalities and injustices. Therefore, it is with scepticism

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that critical theory encounters the cosmopolitical proposition. If ANT is not prepared to break out of its networks to furnish a position from which an analyst can, say, condemn abuses of power, what can it offer critique? Even if ANT’s methodological resources were to prove superior to those of critical theory, the critic’s interest in ANT may not be rewarded with a sounder theoretical basis for advancing the causes of egalitarianism and emancipation. Thus, the question is how critique’s causes may (or may not) mesh with the proposal of the progressive composition of a common world. 3 Bruno Latour has cautioned against just this inquiry: it is ‘deleterious’, he warns, ‘to confuse this new definition of politics with critical sociology’.8 But we must take this risk if we are to push through the deadlock. Taking the proposal seriously means rethinking not the objective of critique – poli­tical relevance or traction, oriented towards equality – but the meaning of political relevance. Investment bankers, environmental lawyers, atmospheric chemists and digital media artists, for example, already engage in politics by multiplying the actors shaping their societies, introducing novel entities (e.g. discounted cash flows, obligations towards ecosystems, deviations in the nitrogen cycle and haptic visual affects, respectively) and stabilizing them until they become, if not ‘natural’, at least firm enough to rely upon to generate new inquiries, projects, explorations and purposes. Their procedures for designing, detecting and disciplining these agencies vary greatly, and a detailed accounting is needed in each case to create uniquely adequate reports disclosing the contingent logics of inquiry, construction and arrangement deployed in their works. Such reports allow the gradual elaboration of practical metalanguages belonging to the actors themselves: the procedures, systems, topoi or logics actually used by the bankers, lawyers, chemists, artists and other actors to guide (and explain or justify) their conduct and those actors, human and non-human, that they represent.9 Despite its reputation for making ‘outlandish’ claims – that non-humans act, facts are manufactured, society does not exist – ANT is, after all, a toolbox designed to amplify the voices of the actors themselves. Because Latour coined the term ‘irreduction’ to describe the approach, affirming boldly that ‘nothing is, by itself, either reducible or irreducible to anything else’,10 critics have seized on the allegedly reductive strategies ANT requires to produce its descriptions.11 The actors’ metalanguages are, however, often very reductive: as Latour’s Irreductions recognizes actors constantly sum one another up; frame, crystallize and unify one another; and devise limits for one another in the process of building their incommensurable worlds. And, unsurprisingly,



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the reflexivity of the actors is shared by the analyst, since ANT accounts are just extensions of the relays and chains of transformations that animate them and with which they attempt to forge a textual connection.12 Reduction is both a logical and strategic necessity in all of these practices. What ANT prohibits is the analyst’s deviation from or erasure of the metalanguages (and metaphysics) developed by the actors by introducing universal causal forces purportedly hidden behind the actors’ backs. That would constitute reduction in the problematic sense because the analyst thereby silences the voices he or she ought to amplify and multiply, reducing their reality rather than augmenting it. The criticism rests on the assumption that there must be either an objective, real nature-out-there, beyond the networks, or utter disbelief in any reality. But this is false. What is called nature is produced within networks, that is, chains of transformations, and is for that reason real. An unconstructed, providential nature would fail to be real since it would have passed through no transformations, no mediations and no relations. What needs explaining with respect to the question of reality is not how an ‘artificial’ being requiring a network of allies to survive can be at one and the same time constructed and real but, on the contrary, why modern philosophers came to think of an implausible, inaccessible, unmediated nature-out-there as the ultimate test of reality in the first place. A corollary of this is that ANT suffers (or benefits) from a ‘ridiculous poverty of . . . vocabulary’:13 instead of impregnable economic infrastructures, universal laws of science or the irrepressible advance of dialectical negativity, ANT traffics in associations, translations and mediations. This self-effacing infralanguage is all that remains following efforts to ‘drop from the list of its methodological terms any which would make it impossible for new actors . . . to define the world in their own terms, using their own dimensions and touchstones’.14 It is meant to act in precisely the opposite manner in which academic jargons normally act, that is, to enlarge rather than to muffle the voices of the actors: ‘We are not priests. We are not governing. We are carrying out a very helpful role as social scientists to make sure that there is no hegemony; to make sure that the multiplicity of voices in this parliament of things is heard’.15 4 The progressive composition of a common world advances only through the arduous process of jointly articulating these practical metalanguages and rendering the modes of existence they presuppose compossible. But compossibility is a demanding criterion. It demands care, caution and sacrifice, as well as unwavering attention to the demands of other beings, particularly so now, as the earth unstoppably warms, as territories are reshaped by war, rising seas

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and biogeochemical processes, as ways of life are altered and skills are rendered obsolete by technological disruption and as the struggle for resources and security drives populations from their homes. In this light, a productive rapport between ANT and legal critique may take the form of a twofold procedure. The mission of legal critique – the denunciation of injustice – is shortchanged by the tendency to rapidly stabilize social relations in global conceptual enclosures, and so it can, perhaps, be wedded to the descriptive project. This would seem to yield a novel, comparative, empirico-theoretical approach to legal phenomena. It calls for the creation of, first, an adequate record of the law’s practical metalanguage(s) and, second, proposals and judgements about the ways law may figure in the ever-evolving ecology of (non)modern practices.16 The second manoeuvre depends on the first: it is pointless to object to the reassembled metalanguage – to the conduits, the ‘persons, things, and actions’, that facilitate the passage of law – but its articulation with other metalanguages, its ecologization, gives solid grounds for the ‘critical’ work of evaluation and selection. By attending closely to its construction of ‘place, size, and scale’, law’s metalanguage can enter into composition with, and account for, other non-legal beings and other metalanguages. A legality that incorporates a mechanistic and mono-naturalistic cosmology, for example, or entrenches economic, racial or gender hierarchies, may be incompossible with a science defined by chains of circulating reference, a politics of collective freedom or a morality of responsibility for those beings that have called to us17 – and thus not capable of being collected in a common world. The work of the critic serves to relativize these competing worlds in order to isolate principles their inhabitants did not know they shared. Critical tools – measuring interests, collusions, complicities – are essential to formulate proposals for a common regime of coexistence and so also for rethinking or remaking commonality and coexistence in general. It is only after the controversies have been deployed in their empirical richness, after the agencies have been multiplied and after the actors’ experimental metaphysics have been inhabited that the politics of compossibility come into view. The practical problem besetting any effort to fashion a new bond between ANT and legal critique, however, materializes here: the slow and often painful work of mapping the law’s metalanguage – a project lacking in radical political appeal – has not been completed. Indeed, it has hardly been started: many critical legal theorists have a well-documented preference for engaging law at the level of its conceptual form rather than its practices, its technicalities and its performances. Therefore, it is extraordinarily difficult to foresee how this ecologization of law within the politics of compossibility may unfold. There can be no question of leaping over this initial step, of course; there is no shortcut to avoid the embedded, often technical, stepwise construction of the actual chains of successive transformations introduced



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in the practices of law, whether these occur in formal legal proceedings (litigation, administrative processes, legislation, treaty formation),18 informal encounters (everyday transactions, disputes, negotiations, agreements)19 or other ordeals falling somewhere in between.20 5 And yet the first phase does not start from zero. While there is no doubt that the resources of the empirical social sciences (ethnographic procedures, but also semiotics, historical and documentary procedures, conversation analysis, quantitative analysis) should be leveraged to create new accounts of law sensitive to the variety of beings that compose it, existing literatures offer a number of threads that can be followed and extended into new frames of reference.21 These include recent critical legal work. Alexander Weheliye’s Habeas Viscus examines political-legal racism on grounds that reject what he sees as the totalizing biopolitical discourses of Michel Foucault and Giorgio Agamben in favour of the interruptions, sedimentations, reprisals and recombinations of racializing assemblages. Weheliye does not so much ‘critique’ law as he extracts the elements of those assemblages from what I would call the law’s immanent anthropology, demonstrating that ‘the entry fee for legal recognition [personhood] is the acceptance of categories based on white supremacy and colonialism, as well as normative genders and sexualities’.22 According to this anthropology – a component of the law’s practical metalanguage – personhood collapses into property, that is, self-ownership. Weheliye, relying on the U.S. Supreme Court’s notorious 1857 Dred Scott opinion23 and jurisprudence concerning the status and capacities of Native Americans and their tribal territories, links this anthropological caesura to the standards of whiteness, masculinity and heterosexuality. Tellingly, Weheliye mounts no legal defence against this ‘racializing juridical assemblage’: the traditional arguments for greater legal recognition and protection of vulnerable minority populations can address only ‘one form of subjugation at the expense of others’,24 and so only intersectional political movements can respond to the prolongation of captivity engineered by law’s anthropology. According to the twofold procedure proposed earlier, the confrontation staged by Weheliye between legal personhood-as-property and an extralegal political imaginary takes up the second phase; what is noteworthy here, however, is the progress he makes on the first one. Weheliye’s accounting of the assemblage’s elements is, of course, contestable, but the fibres it provisionally connects between specific historic legal practices and the constitutive anthropology used by legal actors today marks a step away from the debunking reflex driving much critical theory.

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By contrast, accounts of law that disregard its ontology, reducing it to a mere pretext for moral, political or economic preferences (often under the label of ‘realism’!), are useless here. In such accounts, law is the misleading neutral veneer concealing darker realities – capitalism, authoritarianism, power – and it is the duty of the critic to condemn the contradiction of surface and depth, appearance and reality. Indeed, the programme devised by the Critical Legal Conference’s (CLC) ad hoc committee for the first CLC, held in September 1986 at Kent Law School, identifies contradiction as the ‘central moving force’ of the critical legal movement: contradictions between law-in-books and law-in-action, formal and substantive justice, police power and police practice, legal ideology and legal actuality.25 Although the theories and methods have become more sophisticated and far from uniform, contradictions between appearance and reality, what is said (law) and what is done (politics, morals, etc.), continue to drive the critique of law towards what for many remains its ‘central task’, the ‘disclos[ure of] the contradictions in, and in relation to, legal phenomena in such a way as to realize the possibility of liberating change within them’.26 Whatever the merits of the politics driving this inquiry, it fails because it cannot register the tiny conduits through which the law passes, leaping as it does to the ‘underlying’ power relations and forces of prejudice the law is said to mask in its very form. Are we then to give up on both philosophy and sociology in favour of doctrinal surveys, confining our investigations to the interplay of proper legal norms, rationally reconstructing rule systems and so on? Despite the modesty with which this approach clothes itself, it is quite destructive. Legal rules and norms do not exist in a vacuum. Indeed, a key point of the theoretical practice of following the actors is that this method elucidates the unruly conditions that allow such artefacts as rules and norms to continue in existence. If critical legal theory unduly discounts and destabilizes law, ‘orthodox’ legal theory overvalues and unduly stabilizes it, assimilating law as such to the small subset of beings called rules or norms. This is hardly superior to the critical reduction of legality to a technology for expropriating social conflicts. As I have argued elsewhere, by attempting to eliminate the interferences, hesitations and lacunae through which legal reasoning proceeds – to say nothing of the bodily hexis of legal actors; the ostensibly non-legal concerns and values that animate legal deliberation and discourse; and the technological, aesthetic and other materialities that diffuse, transmit, complicate, enact, enforce and transform the law – and by so distorting the practices of law under the pretence of disinterested analysis, orthodox legal theory commits errors and transgressions still more egregious than even the least nuanced legal critique.27 The understated iconoclasm of orthodox legal theory is symmetrical to the openly declared iconoclasm of CLS: both want to cleanse law of impurities and distractions, though for different ends



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(dogmatics in order to reconstruct a [more] rational legal order, critique in order to demystify law and bring politics, economics, ethics, aesthetics, rhetoric, etc. into the foreground). As Latour correctly argues in his ethnography of the Conseil d’État, ‘neither by recognizing social violence nor by focusing on the presence of rules can one predict the movement of the law’.28 Rather, it is more fruitful to reject ‘the contradictory advice given to us, by sociologists on the one hand and epistemologists on the other, about how to grasp the hidden reality of Law, [and to] quite deliberately . . . remain on the surface of things, stubbornly following the hesitant course of judgment’,29 taking note of the verbal and nonverbal twists and turns, the breaks and false starts in reasoning, the forms of causality invoked, the interests and values taken into account, the techniques through which legal bonds are fabricated, the positive and negative modalizations of prior statements of law and testimony, the way legal theories are constituted and tested, the circulations of value objects, the procedures necessary to construct ‘jurimorphs’, the endless chains of mediation involving legal and non-legal beings needed to stabilize, diffuse, contest, sustain and reproduce the law.30 6 A fair objection to the prospect of collecting legal agencies in this way – and one that could demonstrate a need for tools developed in legal critique – is that it presumes a kind of political equilibrium that is historically rare. Illustrating the claim with reference to the unstable political-legal balance of power in Italy circa 2013, David Saunders asks: Is it in politically unsettled times that judges might ‘capture’ the law in accordance with an ideological – or philosophical or religious – programme? Conversely, is it then a settled political-legal situation – that of France since 1958 under the constitution of the Fifth Republic – that allows Latour to describe law in terms of Conseil d’État judges who decide cases via an ‘attitude of indifference’ to external determinations?31

The political revolutions, constitutional crises, genocides and war crimes, regime changes, colonial appropriations and other sequences of turmoil that by and large attract critical attention are, arguably, less susceptible to the kind of mapping, inventorying and assembling to which ANT lends itself. All the more so, critics may add, if the notion of a permanent state of exception or crisis is accepted. And these moments of crisis can be mobilized to deconstruct the ‘normal’ operations of law and perhaps to capture obscure legal beings produced only under conditions of unprecedented political,

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technological, moral and other pressures.32 Although ordinary surfaces of legality – the speeches of advocates, the reasoning of courts, the traces of evidence – abound in profoundly strange beings that theorists often ignore, there is merit to the argument that the shapes those surfaces assume in ‘disequilibrium’ call for attention. Here, then, is one concrete inquiry on which ANT and legal critique can collaborate. To illustrate, consider the genesis of the rule of law. An historically oriented actor-network account of the construction of the rule of law would be obliged to recognize that this device is born as nothing more than the legal profession’s strategic unification and exclusion of non-lawyers – including but not limited to kings – from the province of jurisprudence. In that sense, it is only the most successful attempt at preserving the autonomy of a medieval guild or craft from political and ecclesiastical incursions. The story of its elevation to the level of unquestionable principle and its diffusion is a complex one about institutional capture (lawyers out-politicking politicians), technological innovation (the written word’s insertion of space between author and text) and colonial practices of standardization (a ‘mission’ that continues to this day in international relations and free-trade diplomacy). Despite its reputation for solidity, the rule of law is fragile and in need of constant upkeep; precisely what chains of transformations populated by which actors have enabled it to survive, and evolve (or corrode), over time and space and through countless abuses, crises and conflicts, remains to be shown.33 Another criticism of ANT that should not be ignored is articulated by Benjamin Noys: by ‘over-inflating’ the agency of ordinary beings (from scientific instruments to chemical cycles to algorithms and diesel engines), and consequently deflating that of extraordinary beings like capitalism, ANT disables the possibility of ‘macro-level’ changes such as those advocated by revolutionary leftist politics.34 Noys links this argument to Graham Harman’s argument that, by assimilating actors to their performances and restricting them to their relations, Latour produces an ‘actualism’ that fails to account, in a metaphysical sense, for change.35 Harman’s philosophical argument fails, however, because it silently imposes requirements on ANT that ought to be contested. For example, Harman correctly notes that Latour ‘does not allow an actor to borrow its effects in advance’, demanding ‘payment in real time. . . [for] every stage in the translation’.36 But while Harman applauds this strike against the traditional metaphysics of potentiality, it requires, on his account, that ANT either equate the actual with the relational (which, he says, it does) or allow the actual to exceed the relational (which Harman’s objectoriented ontology does, but ANT does not). If the actual is purely relational, change is impossible because each next step in a chain of translations would come from nowhere, that is, would be inconsistent with ANT’s actualist premises. The problem with this rejoinder to ANT is that it imposes a static



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frame of analysis and a weak model of relationality that presumes exactly what, as Harman shows, ANT rejects, which is that actors and their relations are distinct, or at least distinguishable. For ANT, relations are not internal to their relata (as in Hegelianism), but neither are they external to their relata; instead, the relata themselves are internal to their relations. In Harman’s account, however, it is almost as if the Aristotelian metaphysics of substance, which provides the key foil in his discussion, has been smuggled back into the narrative as an unannounced major premise. For ANT, a thing is its relations, but it can never be caught in metaphysical immobility; accordingly, no actor could be cornered in the way Harman corners the ‘sitting-man’ who cannot become the ‘standing-man’. To consider a thing apart from its particular ongoing performances, apart from its associates and entanglements, apart from any particular trajectory or course of action into which it is sewn, in the manner of classical (Aristotelian) metaphysics, generates false problems. I hasten to add that although Harman’s argument, which is integral to the metaphysics he has developed, falls short as a criticism of ANT, it succeeds in shifting the philosophical terrain on the issues of, for instance, relationality, actuality and materiality, and as a means of strategically unifying ANT qua rival actor and linking into the networks that sustain ANT qua ally, it is rightly counted a triumph. Noys claims that, if capitalism is not understood as a mode of production establishing its own limits and conditions of reproduction, the efficacy of capitalism is lost and so, therefore, is any means of undoing it. And because Latour considers actors to be ‘completely determined’ by their relations, his apparent expansion of agency is, in fact, a ‘minimisation of agency’:37 the macro-level field cannot be overturned. But this argument, too, falters when the classical substance–relation dichotomy is put aside in favour of ANT’s own model of relationality.38 Actors are not completely determined by their relations; they are relations; that is, they are what they make other actors do. Therefore, there is no minimization of agency – quite the contrary – and the ‘macro’ processes registered by Noys and other theorists of capitalism as formal subsumption (application of the wage standard to labour power, leaving the precapitalist production process largely intact), real abstraction (the form of exchange) and real subsumption (transformation of the production process by application of science and technology to extend its scope) are better understood as multiplicities of individually weak, dispersed, but strategically linked actors. The number and quality of sites for possible political intervention greatly increase in this way. Indeed, it’s only in this way that the ‘indisputable necessities’ of the capitalist economy can be traced back to their own conditions of production.39 Karl Marx understood that there is nothing eternal about such necessities, that they arise only through the formation of alliances of disparate elements

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that can survive contingent trials of strength and that their continued survival is a matter of continual negotiation with other actors. We need look no further than his important analysis of the way the worker is enrolled into the distributed agency that Marx, following bourgeois political economists, calls the means of production. Marx shows that the worker is compelled to exchange his labour capacity for wages because he finds on the other side, opposed to him and confronting him as alien property, all the means of production, all the material conditions of work together with all the means of subsistence, money and means of production. In other words, all material wealth confronts the worker as the property of the commodity possessors.40

This objective wealth appears as capital not because of its character as money or its use value as possible means of production but because of the circumstance that this money and this commodity, these means of production and these means of subsistence confront labour-power, stripped of all material wealth, as autonomous powers, personified in their owners. . . . It is not the worker who buys the means of production and subsistence, but the means of production that buy the worker to incorporate him into the means of production.41

What Marx achieves in this analysis is the condensation of a whole varied chain of transformations into the figure of the means of production. He recognizes that this is not really a massive ‘macro’ object at all but a massively distributed system of representations and substitutions (what he calls objectifications, personifications, etc.) in which unequal forces ally with and strive to overtake and ‘economize’ one another: for example, to produce a composite entity that stands as a unitary ‘autonomous power’ over against the worker’s labour capacity considered as a substitutable commodity, owing to a prior sequence of trials that, according to Marx, resulted in the detachment of labour power and wealth, and the production of relative size between labour power (smaller) and wealth (larger). This distributed object is the network confronting the labourer, and Marx notes that it swallows the latter the moment the wage transaction occurs, and labour power is made equivalent to, transformed into, wages. This absorption via the market device of wage standardization must occur continually to sustain the network, that is, capital. Marx shows that human labourers and their labour power, reduced to passive intermediaries by the vast array of active mediators gathered under the label of means of production (and also by bourgeois political economists), nevertheless, continue, in fact, to drive the production process. Theories of capitalism establish the permanence and objectivity of capital and so construct capitalism as a sturdy object, a mode of production, only by diminishing the activity



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of labour. And by emphasizing, conversely, the agency of labour, and the specific techniques of representation and substitution that sustain capital as a distributed, dislocated agent, Marx complicates their narratives by multiplying mediators, including by detecting new beings like labour power – a very ANT-like thing to do! – in the process of explicating how capital’s ubiquitous effect of positing itself as universal cause is itself produced.42 ‘It’s economization, stupid’, we can imagine him saying. If we follow Marx, as he follows the process of production of the mode of production, we see him doing precisely the things that some, like Noys, find intolerable in ANT writing. There exists a considerable volume of literature on ANT and economics, both supportive and critical, but what is missing is any sustained encounter with the beings of law that help to perform the economy, or the market devices and other economic assemblages that legal beings presuppose or require in order to bind. Here is another potential meeting point between ANT and legal critique. Complex devices like the wage standard embed legal theories about, for example, the capacity to contract (or as Simon Deakin and Alain Supiot say, capacitas)43 and ownership (including self-possession, as Weheliye shows), and its performance or dissemination likely has an important place in an account of how new legal statuses and capacities – new legal personae – are invented. The juridico-economic complicities and interests reflected in such constructs merit a critical analysis in ontological comparison. Symmetrically, even familiar, apparently well-grounded legal beings – ordinary obligations like those involved in face-to-face sales transactions, or a privilege to enter a delimited space – may fail to exist without the series of mediations constituting money as general equivalent, financial models of calculative reason, market framing techniques, statistical procedures for computing prices and wages and so on,44 to say nothing of the ledgers, account statements, accounting certifications, bills, shopping carts, credit cards, autopay agreements, Bloomberg terminals, securities indices and other things that sustain markets. These, too, call for sustained critiques of the values they convey and render difficult to contest, so that alternative models may be imagined and have a hearing.45 If legal critique denounces injustices and debunks the neutrality and objectivity of the law in order to reimagine the institution of law – so that it can, perhaps, become equal to the public trust with which it is vested – then it shares this elementary objective with ANT. The paths followed to reach it, however, matter a great deal. By shifting too rapidly between legal utterances and phenomena and the social aggregates supposed to explain them, critique risks losing the fragile thread of legality. ANT, by slowing down to collect the agencies and translations too quickly unified in those aggregates, without dismissing the strange metaphysics of the human and non-human actors performing the law,

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can provide accounts of legality more sensitive to its thresholds or zones of interference with other modes of existence and their practical metalanguages, other beings that demand to be taken into account and other ‘cosmopolitical’ visions of a common world. But critique – enriched by ANT’s ethnographic drive – is necessary to relativize their cosmologies, question their principles and articulate the regime of coexistence they demand. NOTES 1 See Latour (2005); other important formulations of ANT include Mol (2002) and Law (2004). 2 McGee (2018) develops this point with reference to ‘postcritical’ legal theory in general. 3 Anker and Felski (2017) helpfully assess these and other characteristics of ‘postcritique’ in literary and cultural studies. 4 For example, Noys (2010, 80–105). 5 See Mirowski (2015) and Fuller (2000). 6 See Watson (2011). 7 Latour (2005, 171). 8 Ibid., 255. 9 The same is true of sociologists and critical theorists, who construct and speak for societies; it is their practical metalanguage that Latour (2005) collects and interrogates. As Saito (2015, 452) observes, although for different reasons, ANT ‘force[s] social scientists to re-envision critical theory in light of the inevitable performativity of their research’. 10 Latour (1988, 158). 11 For example, Brassier (2011), who observes that ‘it is interesting to note how many reductions must be carried out for irreductionism [sic] to get off the ground: reason, science, knowledge, truth – all must be eliminated’; Noys (2010, 80–105), who reckons with ANT’s ‘reductionism’ and argues that ‘Latour’s style is determined by violence, but by a violence that is constantly displaced onto others’, citing the ‘elimination of particular “objects” or “actants” that would compromise its own functioning, notably “capitalism” and “revolution”, in the name of opposing violence’, 91. 12 On ANT’s ‘risky accounts’, see Latour (2005, 121–140). 13 Latour (1999a, 20). 14 Ibid. 15 Latour in Barron (2003, 93). 16 On this term, see Stengers (2005). 17 The ontology of knowledge as circulating reference is examined in Latour (1999b). Politics and morality as modes of existence are examined in Latour (2013). On Latour’s political philosophy, see also Harman (2014). 18 See McGee (2015), who examines at length a U.S. district court’s class certification analysis in a toxic tort case. 19 The key text here remains Ewick and Silbey (1998).



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20 A good example of this intermezzo is furnished in Cloatre and Dingwall (2013), an ANT study of the diffusion of French patent law in Djibouti via the circulation of branded drugs, whereby the invisibility of pharmaceutical patents paradoxically accounts for the unavailability of generics. 21 See Dupree, Lynch and Berard (2015). 22 Weheliye (2014, 77). 23 Dred Scott v. Sanford, 60 U.S. 393 (1857). 24 Weheliye (2014, 81). 25 Critical Legal Conference (1986, 1–2). 26 Ibid., 3. 27 For this argument, see McGee (2014, 170–171): ‘Conceptualism [in the terms used here, orthodox legal theory] is certainly iconoclastic, but in an understated manner: it practices the destruction of what it takes to be distraction, manipulation, and impurity. It is iconoclastic in a very classical, Platonic sense, the sense in which Plato banished the poets’. 28 Latour (2010, 143). 29 Ibid. 30 On jurimorphs, see McGee (2015); see also Latour (2015). 31 Saunders (2015, 32–33). Noys makes a related argument based on a symptomatic reading of Latour with respect to the question of revolutionary violence; see Noys (2010, 92–96). 32 It is worth noting, however, that the everyday ‘black-boxing of empire’ carried out by legal organs in otherwise stable Northern states can profitably be studied using ANT’s resources; see Valverde and Weaver (2015) and Valverde (2015). 33 For an analysis of the rule of law in the throes of technological upheaval, see Hildebrandt (2015); for discussion, see McGee (2016a). 34 Noys (2010, 86–87). A cognate argument concerning not capitalism but ecological collapse is advanced by Hamilton (2017, 98): ‘Anti-anthropocentrism has the perverse effect of denying our responsibility for the [ecological] damage we have caused’. 35 See Harman (2009). 36 Ibid., 128. 37 Noys (2010, 86). 38 Harman (2014, 113–120) evaluates Noys’s criticisms. Because I concur with Harman’s discussion of Latour’s treatment of revolutions (and ‘gradualism’) in the sciences and in politics – which is exemplified by Latour’s analysis of Pasteur and which demonstrates that what are often seen as lightning-quick ‘revolutions’ are actually extended series of transformations requiring strategic positioning, manipulations, extensions and transfers of other actors, positive and negative modalizations and so on – I do not discuss this point here but direct interested readers to Harman’s response to Noys. 39 See Latour (2014). In addition, a large portion of Latour (2013) is dedicated to the economy, a perverse ‘amalgamation’ of modes; and Latour (2017) addresses capitalism and the new climatic regime. Latour’s notion of indisputable necessities resonates with the American legal realist critique of legal-political-economic

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coercion, such as Robert Lee Hale’s (1923), and the work of the pragmatic institutional economists, such as John Commons (1924). See also McGee (2016b). 40 Marx (1977, 1003). 41 Ibid., 1003–1004. 42 Whereby ‘the value-sustaining power of labor appears as the self-supporting power of capital; the value creating power of labor as the self-valorizing power of capital and, in general, in accordance with its concept, living labor appears to be put to work by objectified labor’; and when production expands in scope (more workers, more organization, more machinery) and the application of science and technology is added to production, this impression greatly ‘intensifie[s]’, producing the ‘productive power of capital’. Ibid., 1020–1021 and 1024. 43 Deakin and Supiot (2009). 44 On the economic sociology of market devices, see Callon, Millo and Muniesa (2007). 45 An approach not entirely dissimilar to that suggested here is Didier Fassin’s ‘critical ethnography’; see Fassin (2017).

BIBLIOGRAPHY Anker, Elizabeth S., and Rita Felski, eds. 2017. Critique and Postcritique. Durham, NC: Duke University Press. Barron, Colin. 2003. ‘A Strong Distinction between Humans and Non-Humans Is No Longer Required for Research Purposes: A Debate between Bruno Latour and Steve Fuller’. History of the Human Sciences 16 (2): 77–99. Brassier, Ray. 2011. ‘Concepts and Objects’. In The Speculative Turn: Continental Materialism and Realism, edited by Levi Bryant, Nick Srnicek and Graham Harman. Melbourne: re.press, 47–65. Callon, Michel, Yuval Millo and Fabian Muniesa, eds. 2007. Market Devices. Oxford: Blackwell. Cloatre, Emilie, and Robert Dingwall. 2013. ‘ “Embedded Regulation”: The Migration of Objects, Scripts, and Governance’. Regulation & Governance 7 (3): 365–386. Commons, John R. 1924. Legal Foundations of Capitalism. New York: Macmillan. Critical Legal Conference. 1986. ‘Conference to Be Held at the University of Kent, September 1986, on “Critique, Contradiction and the Law” ’. https://www. kent.ac.uk/law/research/clc-2016/docs/Preliminary%20note%20to%20the%20 CLC%201986.pdf. Accessed 15 June 2017. Deakin, Simon, and Alain Supiot, eds. 2009. Capacitas: Contract Law and the Institutional Preconditions of a Market Economy. Portland, OR: Hart. Dupree, Baudouin, Michael Lynch and Tim Berard, eds. 2015. Law at Work: Studies in Legal Ethnomethods. Oxford: Oxford University Press. Ewick, Patricia, and Susan Silbey. 1998. The Common Place of Law: Stories from Everyday Life. Chicago, IL: University of Chicago Press. Fassin, Didier. 2017. ‘The Endurance of Critique’. Anthropological Theory 17 (1): 4–29.



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Fuller, Steve. 2000. ‘Why Science Studies Has Never Been Critical of Science: Some Recent Lessons on How to Be a Helpful Nuisance and a Harmless Radical’. Philosophy of the Social Sciences 30: 5–32. Hale, Robert Lee. 1923. ‘Coercion and Distribution in a Supposedly Non-Coercive State’. Political Science Quarterly 38: 470–494. Hamilton, Clive. 2017. Defiant Earth: The Fate of Humans in the Anthropocene. Cambridge: Polity. Harman, Graham. 2009. Prince of Networks: Bruno Latour and Metaphysics. Melbourne: re.press. Harman, Graham. 2014. Bruno Latour: Reassembling the Political. London: Pluto Press. Hildebrandt, Mireille. 2015. Smart Technologies and the End(s) of Law: Novel Entanglements of Law and Technology. Cheltenham, UK: Edward Elgar. Latour, Bruno. 1988. ‘Irreductions’. In The Pasteurization of France. Translated by Alan Sheridan and John Law. Cambridge, MA: Harvard University Press, 153–238. Latour, Bruno. 1999a. ‘On Recalling ANT’. In Actor-Network Theory and After, edited by John Law and John Hassard. Oxford: Blackwell, 15–25. Latour, Bruno. 1999b. ‘Circulating Reference: Sampling the Soil in the Amazon Forest’. In Pandora’s Hope: Essays on the Reality of Science Studies. Cambridge, MA: Harvard University Press, 24–79. Latour, Bruno. 2005. Reassembling the Social: An Introduction to Actor-NetworkTheory. Oxford: Oxford University Press. Latour, Bruno. 2010. The Making of Law: An Ethnography of the Conseil d’État. Translated by Marina Brilman and Alain Pottage. Cambridge: Polity. Latour, Bruno. 2013. An Inquiry into Modes of Existence: Anthropology of the Moderns. Translated by Catherine Porter. Cambridge, MA: Harvard University Press. Latour, Bruno. 2014. ‘On Some of the Affects of Capitalism’. Lecture at the Royal Academy, Copenhagen. http://www.bruno-latour.fr/sites/default/files/136AFFECTS-OF-K-COPENHAGUE.pdf. Accessed 15 June 2017. Latour, Bruno. 2015. ‘The Strange Entanglement of Jurimorphs’. In Latour and the Passage of Law, edited by Kyle McGee. Edinburgh: Edinburgh University Press, 331–353. Latour, Bruno. 2017. Facing Gaia: Eight Lectures on the New Climatic Regime. Translated by Catherine Porter. Cambridge: Polity. Law, John. 2004. After Method: Mess in Social Science Research. London: Routledge. Marx, Karl. 1977. ‘Results of the Immediate Process of Production’. In Capital, Vol. 1: A Critique of Political Economy. Translated by Ben Fowkes. New York: Vintage, 943–1084. McGee, Kyle. 2014. Bruno Latour: The Normativity of Networks. New York: Routledge. McGee, Kyle. 2015. ‘On Devices and Logics of Legal Sense: Toward SocioTechnical Legal Analysis’. In Latour and the Passage of Law, edited by Kyle McGee. Edinburgh: Edinburgh University Press, 61–92. McGee, Kyle. 2016a. ‘On Legal Replicants’. Jurimetrics: The Journal of Law, Science & Technology 56 (3): 305–318. McGee, Kyle. 2016b. ‘On the Grounds Quietly Opening beneath Our Feet’. In Reset Modernity!, edited by Bruno Latour and Christophe Leclerq. Cambridge, MA: MIT Press, 272–277.

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McGee, Kyle. 2018. ‘Law in the Mirror of Critique: A Report to an Academy’. In Critical Legal Theory Handbook, edited by Emilios Christodoulidis. Edward Elgar: Cheltenham. Mirowski, Philip. 2015. ‘What Is Science Critique? Lessig, Latour, Foucault, Part 1’. Keynote Address to Workshop on the Changing Political Economy of Research and Innovation. www.academia.edu/11571148/What_is_Science_Critique_Part_ 1_Lessig_Latour. Accessed 15 June 2017. Mol, Annemarie. 2002. The Body Multiple: Ontology in Medical Practice. Durham, NC: Duke University Press. Noys, Benjamin. 2010. The Persistence of the Negative: A Critique of Contemporary Continental Theory. Edinburgh: Edinburgh University Press. Saito, Hiro. 2015. ‘Cosmopolitics: Towards a New Articulation of Politics, Science, and Critique’. British Journal of Sociology 66 (3): 441–459. Saunders, David. 2015. ‘From the Conseil d’État to Gaia: Bruno Latour on Law, Surfaces, and Depth’. In Latour and the Passage of Law, edited by Kyle McGee. Edinburgh: Edinburgh University Press, 17–37. Stengers, Isabelle. 2005. ‘Introductory Notes on an Ecology of Practices’. Cultural Studies Review 11 (1): 183–196. Valverde, Mariana. 2015. Chronotopes of Law: Jurisdiction, Scale, and Governance. New York: Routledge. Valverde, Mariana, and Adriel Weaver. 2015. ‘ “The Crown Wears Many Hats”: Canadian Aboriginal Law and the Black-Boxing of Empire’. In Latour and the Passage of Law, edited by Kyle McGee. Edinburgh: Edinburgh University Press, 93–121. Watson, Matthew. 2011. ‘Cosmopolitics and the Subaltern: Problematizing Latour’s Idea of the Commons’. Theory, Culture & Society 28: 55–79. Weheliye, Alexander. 2014. Habeas Viscus: Racializing Assemblages, Biopolitics, and Black Feminist Theories of the Human. Durham, NC: Duke University Press.

Chapter 4

Reopening the Archive From Hypomnesis to Legal Ontology Hayley Gibson

For some time now, there has been a quietly flourishing literature on the theoretical question of the relationship between ‘law and the archive’, and yet it is lamented1 that perhaps the most important homage to the archive by a ‘juridical thinker’2 has been underused to date in legal circles. Archive Fever, Jacques Derrida’s 1994 address to the Freud Society, finds itself consigned, or at least subject, to the threat of consignment, to an encompassing legal forgetfulness. Perhaps there is good reason – even an injunction – not to forget that address, even while it is apparently being dispensed with. It will be the unfulfilled objective of this chapter to furnish such an injunction with some justification, by asking two ancillary questions: how might the relationship between law and archive be rethought following a reading of Archive Fever – one in which the deconstruction of the Freudian archive is excavated for its legal potential? And, second, might this particular approach allow some form of engagement with – which is not the same thing as a ‘deconstruction of’ (there is plenty of this) – the project of modern law? Not only insofar as the latter must, I think, be defined by its unceasing effort to establish a legal ontology, but also because any differentiation of these entities (‘law’ and ‘the archive’) must necessarily beg the same question. RECALLING LAW AND THE ARCHIVE In Files, the late Cornelia Vismann’s genealogy of the law, there emerges a history of the archive, in its various manifestations, as a supplement to the law. Investigating ‘how files control the formalization and differentiation of the law’, how they ‘process the separation of the law into authority and administration’ (Vismann 2008a, xii), Vismann posits a theory of the 63

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archive as the constant and constitutive barrier that is always situated ‘before the law’ in the Kafkian sense: prohibiting access to, and yet compelling us towards, the hollow, often cavernous, recesses which contain, disguise and suggest the ambiguous power of the law. As Thanos Zartaloudis explains, this investigation places the archive not only before the law but also beside it, to the extent that the ‘para-legal’ archive invites an analogy with Giorgio Agamben’s development of theological oikonomia (Zartaloudis 2010, 138). The latter envisions a vacancy at the centre of sovereign power, which is nevertheless exercised through governmental apparatuses in what is a bipolar system within which the being and praxis of sovereign power are separated but functionally articulated in an economy.3 Likewise, Vismann’s archive performs the ministerial function through which, despite its intangible and inaccessible nature, the law is to be glimpsed, or suggested: files ‘lay the groundwork for the validity of law, they work toward the law, they establish an order that they themselves do not keep’ (Vismann 2008a, 13). This ministerial function – which takes its form in the preamble, the barrier and the chancery – is possessed of a powerful ambiguity: it is a ‘legal twilight zone’ in which the violence of the law is carried out and in which ‘the law encounters writing and decides about the distinctions that are performed in the symbolic’ (ibid., 29). Importantly, this placing of the law beside the archive contemplates (while, of course, problematizing) a distinction between law, on one hand, and archive, on the other: ‘[the law] works with them [files] and creates itself from them . . . it operates in a mode of difference that separates it from the varying formats of files’ (ibid., 13; emphasis mine). This ‘difference’, however, flies in the face of Derridean différance, and Vismann’s genealogy of law and files sits uneasily beside Derrida’s ‘juridical’ archive. In fact, while Vismann is aware of Archive Fever, she makes only sparse reference to this work in Files. In a later piece,4 however, she will address the essay more directly, offering the observation that Derrida’s grammatological account of the archive is ‘indifferent to the history of archives’ (Vismann 2008b, 44) and, by extension, her own earlier genealogy. Vismann’s point of departure is Derrida’s reliance, early in the essay, upon the Greek word arkhé (commencement), in the light of which he explores the etymological similitude of archons (those with authority to interpret the law) and arkheia (archives). Such a similitude is suggestive of a nexus between the interpretive commencement of the law and the form of the archive. In line with Derrida’s Force of Law in which the moment of decision suspends and founds the law, the archive is presented as something which entails a dialectical movement of juridical precedent and authoritative decision: ‘Derrida presents [the archive] as a form of law’ (ibid., 52; emphasis mine). But this, Vismann argues, is to ‘disregard . . . something in the genesis of the rule



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of law from the archive which could be called the imperial factor’ (ibid., 44). While Derrida, in Vismann’s reading, renders the interpretation of archives commensurate with ruling authority and thus invests the archive with the source of the law in the sense of the ‘rule of law’, a more comprehensive history of law and the archive will reveal that it is not until the Imperial Roman tradition that we witness an ‘ascertainable moment in time when the archive becomes the rule of law’ (ibid.). To begin with, the Greek arkhé does not coincide with any habitual practice of consulting archives as sources of law. Moreover, explains Vismann, there is a telling event, in the sixth century, when Justinian ‘ordered a complete review of the archives’ legal texts so that no lawyer after him would have to refer to the archives ever again’ – in short, it is at this point that ‘the archive had become text’ and ‘the archive texts summarized in codified form became the law’ (ibid.). ‘From a legal historical perspective’, Vismann concludes, ‘the conjunction of rule and law begins after reference to archived texts has been abolished’ (ibid.). As a result, the possibility of referring to a beginning that is endowed with law (the possibility, that is, of law being founded upon a legal rule as opposed to more the simple political authority that invests archons with the right of interpretation) depends precisely on the historical moment in which the archives are consolidated, transformed into the rule of law but losing in the process their ‘archival’ character. Derrida is in error, then, when he equates the archive with the law, and when he reads both ‘rule’ and ‘law’ into the arkhé. For Vismann, this equivalence of law and archive could only have taken its cue from the law of the archive, namely that ‘it precedes’ (ibid., 43). From the observation that the archive and the law are similar in structure and function, we are led to the apparently contentious conclusion that ‘the abstract law is nothing but a virtual archive; it precedes the individual case just as the archive texts precede current ones’ (ibid., 44). It would appear, then, that the structure of ‘precedent’ is not a sufficiently juridical motif with which to justify the ‘convergence of law and archive’, precisely where history indicates, to the contrary, their mutual exclusion in the Justinian event. This event notwithstanding, however, surely an epistemological, if not an ontological, anxiety must niggle at this thread of reasoning: for this history is possible only on the basis of an apparent distinction between ‘law’ and ‘archive’ in the first place and (to further compound the issue) between ‘law’ and something called ‘abstract law’ in the second. What, one might ask, is the status of this law that is neither ‘abstract’ nor commensurate with archive?5 Any ‘demand’ for a legal ontology is overshadowed by the more pressing matter of methodology in this later essay (if not in Files). Importantly, it is not that Archive Fever is without value for Vismann, but that it is one of at least two available methods. To the science of arkhé-logy, ‘the science of

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the commencement’ which, seemingly more appropriately in Heideggerian fashion, ‘reads a beginning (arkhé) back into the origins and thus arrives unmistakenly at the rule of law’, she opposes (and is a proponent of) ‘an archive archaeology’ which ‘steps out of the symbolic order’ referring to ‘that which does not speak, the space of the archive’ (Vismann 2008b, 51). Putting aside for the moment the fact that Derrida had, long before Archive Fever, addressed the problems inhering in any archaeology of silence,6 the justification for this opposition for Vismann appears to lie in the grammatological incapacity to grapple with the ‘material conditions, such as lack of space and fired clay’ that dictate the relationship of archives to the law but which are precisely conditions ‘fall[ing] outside the perception of a juridical thinking of the archive’ (Vismann 2008b, 52). Too much law, then, and too little ‘materiality’ – this is the sacrifice undertaken by a grammatological account of the archive. By contrast, Vismann’s genealogy would reveal the point of emergence of the rule of law, which is to say, the self-perpetuating, self-containing capacity of rules upon which the very existence of the modern law relies and over which its postulates must agonize: thus the journey through archival materiality pre-emptively usurps the quest for legal ‘ontology’. In what remains of this chapter, I consider these two, related, problems – legal ontology and materiality – in contemplation of the juridical archive of Archive Fever. First, the archival ‘structure’, I argue, is necessary to, and prefigured in, the law, in its modern (and arguably only) incarnation:7 a selfgenerating and self-referential system of norms perpetuated in accordance with the rule of law, with the ever-present possibility of referring ‘back’ and writing anew.8 To establish this point is to turn Vismann’s critique on its head: we must determine the archival nature of ‘the law’ first, if we are to use it at all – let alone to investigate its coexistence with media. Incidentally, to follow a path through deconstruction to the question of archival-legal ontology is all the more pressing since it stands in the shadow of the alreadyidentified achievement of Files in providing an (Agambenian) oikonomic model of the differentiated, yet economically coupled, law–and–archive, in which ‘the formal self-generativity of the so-called modern form of law . . . reproduces further the myth of self-emergence through the apparatuses of its recording devices’ (Zartaloudis 2010, 136). Second, I am mindful that the very point of deconstruction’s ‘juridical thought’ is to distinguish law, the ‘programmable application or unfolding of a calculable process’ which ‘might be legal’ but ‘would not be just’ (Derrida 1992a, 24) from justice: that which awaits us and commands us under pain of urgency to decide on the particular, and yet which can only be approximated in the (im)possible decision to ‘go through the ordeal of the undecidable’; something ‘foreign to the order of the calculable and the rule’ (ibid.). What



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avenue of inquiry could possibly remain in respect of this calculable order, which exists only as a generative antithesis to ‘deconstruction as justice’? Both of these points, I think, might find some comfort in the development in Archive Fever, as well as related Derridean texts, of something of a rejoinder to the association of archival science with materiality. It is necessary to begin again, not with arkhé, but with another, similarly complex term – ‘hypomnesis’: ‘Let us never forget’, Derrida warns, ‘this Greek distinction between mneme or anamnesis on the one hand, and hypomnema on the other. The archive is hypomnesic’ (Derrida 1996, 11). Hence, I endeavour to revive a theme that has been forgotten in the extant discourse and which shall have already ‘justified’ the reopening of Derrida’s archival text.9 DEATH DRIVE OR ‘THE VIOLENCE OF FORGETTING’ If the legal discourse addressing Archive Fever is sparse, the acknowledgement in that discourse of the psychoanalytic theme of the work is virtually non-existent.10 This is, perhaps, surprising. Admittedly, Derrida states, Freud had no ‘concept’ of the archive any more than we do.11 Nevertheless, ‘Freudian psychoanalysis proposes a new theory of the archive; it takes into account a topic and a death drive without which there would not in effect be any desire or any possibility for the archive’ (Derrida 1996, 29). This is to state matters quite boldly, and so it is further surprising that legal discourse does not associate this ‘death drive’, which makes the archive possible, with the question of the law, particularly with the question of legal violence. Renisa Mawani, for example, delivers a ‘material reading of law as archive’, which, she explains, ‘requires a reading of Derrida’s . . . meditations on the archive alongside and through “Force of Law” ’ (Mawani 2012, 357). Mawani’s point is to identify the ‘double logic of violence’ inherent in the archive as she reads it – a reading that would align the archival function of the law with the memorial or ideological function of the state and, in particular, the colonial state. While my assimilation of law and the archive will be narrower and independent from state theory, this remains an appropriate analogy. Derrida explicitly says of the archive that ‘it has the force of law’, and the Benjaminian Critique of Violence provides a gloss to that force, even in Archive Fever, which is concerned with ‘the violence of the archive itself, as archive, as archival violence’: Every archive . . . is at once institutive and conservative. Revolutionary and traditional. An eco-nomic archive in this double sense: it keeps, it puts in reserve, it saves, but in an unnatural fashion, that is to say in making the law (nomos) or making people respect the law. (Derrida 1996, 7)

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In essence, archival violence reflects the interplay between the movements of legal violence in Benjamin’s critique: one must preserve the archive in order to make an ‘initial’ authoritative interpretation, and such an interpretation is always slightly out of line with hitherto-recorded precedent, a fresh interpretation and a new inscription each time. This double violence is set in motion in memory as for law according to precisely the same deconstructive spirit that animated Force of Law, namely the rejection of logocentrism, the ‘absence’ of ‘presence’. Just as there is no authorization by any ‘anterior legitimacy’ of the originary violence that founds the law, there is no possibility in the psychoanalytic context of a spontaneous memory, no possibility of gaining access to the origin of memory, to the lived experience: The archive, if this word or this figure can be stabilized so as to take on a signification, will never be either memory or anamnesis as spontaneous, alive and internal experience. On the contrary: the archive takes place at the place of originary and structural breakdown of the said memory. (Ibid., 11)

The absence of the internal experience, like the absence of the legal origin, necessitates an incessant procedure whereby the archive is ‘selected’, imprinted, its material recalled. Notably, this is not a question of straightforward recall: although ‘the word and the notion of the archive seem at first, admittedly, to point towards the past, to refer to the signs of consigned memory, to recall faithfulness to tradition’ (ibid., 33), the archive, presumably for want of origins, operates differently: ‘It is a question of the future, the question of the future itself, the question of a response, of a promise and of a responsibility for tomorrow’ (ibid., 36). Another parallel, then, with the promise (‘perhaps’) of justice that comes with the deconstruction of the law; but one in which it is now the past, and not justice to the particular, that may, one day, be redeemed and alongside which we place the interpretive force of the archivist-archon, always both falling short of true mnesis and acting upon this responsibility to execute every archival inscription regardless. But what is it, then, that compels this interplay of archival violence, of past and future? It is this question, I think, that ushers in the commensurability of archive and law; and I think that the key can be found in Derrida’s conjuring, at the same time as analysing archival violence, of the pseudo-Freudian ‘death drive’. In Beyond the Pleasure Principle, Freud finally capitulated to the theory of a death instinct which was already in circulation (and advanced in its most sophisticated form by Sabina Spielrein [1994] some decade earlier), stating that ‘the aim of all life is death’ and that the human instinct is to ‘return to the inanimate state’ (Freud 1959, 71). This instinct stands opposite the conservative instincts in a seemingly contradictory fashion, owing to the



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drive of the organism to die ‘in its own way’ (ibid., 72). Importantly, for Derrida, the death drive is mute: It is at work, but since it always operates in silence, it never leaves any archives of its own. It destroys in advance its own archive, as if that were in truth the very motivation of its most proper movement. It works to destroy the archive: on the condition of effacing but also with a view to effacing its own ‘proper’ traces. . . . It devours it even before producing it on the outside. (Derrida 1996, 10)

Although it is nowhere stated in the text, this drive, which leaves nothing behind, is precisely in line, not with law-preserving or law-founding violence but with the divine violence of Benjamin’s Critique: a non-legal violence that leaves no trace. Likewise sits the death drive in relation to the archive: This drive . . . seems not only to be anarchic, anarchontic . . .: the death drive is above all anarchivic, one could say, or archiviolithic. It will always have been archive-destroying, by silent vocation. (Ibid.)

The violence which threatens law with wholesale destruction is therefore similar to an archiviolithic death drive, an archive-destroying drive, and this is precisely so because the instinct towards death is also an instinct towards forgetting: As the death drive is also, according to the most striking words of Freud himself, an aggression and a destruction . . . drive, it not only incites forgetfulness, amnesia, the annihilation of memory, as mneme or anamnesis, but also commands the radical effacement, in truth the eradication, of that which can never be reduced to mneme or to anamnesis, that is, the archive, consignation, the documentary or monumental apparatus as hypomnema. (Ibid., 11)

Thus, says Derrida, the death drive ‘threatens every principality, every archontic primacy, every archival desire. It is what we will call. . . le mal d’archive, “archive fever” ’ (ibid., 12). Indeed, there is ‘no archive fever without the threat of this death drive’, no archive desire ‘without the possibility of a forgetfulness which does not limit itself to repression’ (ibid., 19). The drive of death and forgetting, which here threatens conscious memory with the obliterating force of forgetfulness, is one part of an aporetic double. The other part is the libidinal, creative repetition compulsion: the desire with which the psychical apparatus ‘creates archives’. In other words, ‘archive fever’ signifies the paradoxical threat to the archive from within the archive; and the simultaneous yearning iteratively to produce archives: We are en mal d’archive: in need of archives . . . to be en mal d’archive can mean something else than to suffer from a sickness . . . it is to burn with a

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passion. It is never to rest, interminably, from searching for the archive right where it slips away. It is to run after the archive, even if there’s too much of it, right where something in it anarchives itself. It is to have a compulsive, repetitive, and nostalgic desire to return to the origin, a homesickness, a nostalgia for the return to the most archaic place of absolute commencement. (Ibid., 91)

Let us leave the detail of the text for now and pause on that ‘nostalgic desire to return to the origin’. Just as Kafka’s Before the Law introduces the demi-myth of a door that lies open ‘only for us’ and that therefore beckons to us,12 calling us by name and summoning us towards the law, likewise, the threat to the archive by the archiviolithic instinct for forgetting instigates a compulsion towards the lost origin: one which cannot be satisfied and which is transferred instead to the production of hypomnemic archives – always less than memory, always a substitute for the origin. Even more than a yearning – this compulsion is described in the latter pages of the essay as an injunction: Derrida speaks of an ‘injunction to remember the future’; an ‘archontic injunction to guard and to gather the archive’ (Derrida 1996, 77). In the form of the injunction, the death drive propagates an internalized order, something in the form of a command from within. The relationship of this interplay of the violence of forgetting and hypomnesis with the modern law is precisely this: the law is threatened by the forgetfulness of its origin and issues to itself an injunction to recall the same. The continuous invocation of legal origins, which is a continuous appeal to memory, together with the impossibility of a return to the now-necessary origin (in the form of the rule of law) – all of this menaces the law from within, threatening it with the force of destruction, which is the same as the force of forgetting. In a wholesale forgetfulness of its origins, law is indistinguishable from command or violence or politics13 and must continuously re-inscribe an inadequate memory into every normative moment. Now, in some respects, this is deconstruction as usual, which, in turn, is nothing that an interlocutor like Vismann does not already know. But it seems that there is an important caveat here when it comes to the law. Usually, deconstructive accounts of legal phenomena gravitate to the critical or exceptional moments of law: the violence of the decision when presented with the particular;14 or the act of signing, in the name of the People, the constitutive text of legal and political authority.15 Not so with the archive. And the reason is this: there is an urgency that drives deconstruction as justice, as it is presented to us in Force of Law: ‘the urgency that obstructs the horizon of knowledge’ (Derrida 1992a, 26). ‘Justice’, Derrida writes, ‘doesn’t wait’: and this is just because of what the (im)possible instance



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of justice is (or, more precisely, might become). The plane of calculability that sits opposite justice yet in relation to it – the plane of the law – is not subject to that compulsion. However, I would suggest that internally to the law, there is a determinate need to state the origin. This is what renders something like the law commensurate with the archive: the need to recall, not just what has gone before but the very possibility of origins, which is the verso of the blank space presented to us by the radical absence of an origin; and of the continuous threat to precarious hypomnemata of prior norms or rules: that we might forget these substitutes where they are occluded by politics, violence or sovereign command. In circumstances similar to the inability of the psychoanalytic process to gain true access to spontaneous memory or lived experience, the law must refuse to persist without memory of its origins; it must issue, and respond to, an injunction. For Derrida, The injunction [to remember/against forgetting], even when it summons memory or the safeguard of the archive, turns incontestably toward the future to come. It orders to promise, but it orders repetition, and first of all self-repetition, self-confirmation. (Derrida 1996, 79)

Likewise, the iterative self-confirmation of the law is carried out in the re-inscription of the origin at every stage of rule-making in positive legal systems (e.g. the Kelsenian and Hartian models). The content of the norm is separated from its form in positivism, and it is precisely this formal structure that allows legal rules to summon an origin that is, as we saw in Force of Law, neither truly anterior nor ever guaranteed but which demonstrates the logic of the archive. And just as the ‘prosthesis’ of the hypomnemic substrate forms (as we shall see) the basis of the hypomnesic recollection in Freud’s analysis of the Wunderblock, so too does the law subsist on the basis of a falsified or simulacral memory of origins; Derrida reminds us, in Force of Law, of Montaigne, for whom the lack of appeal to any natural law forces legal positivism to invent its fictitious supplement, just as ‘women who use ivory teeth . . . forge [some] with some foreign material’ (Derrida 1992a, 12). To address the dual problematic I raised at the conclusion of the previous section, then: deconstruction may easily pertain to the quotidian, internal structure of the law,16 and furthermore, given the inability of the latter to look for grounding authority outside of its own ‘unconscious’ or repressed memories of origin, the ‘law’ properly so-called, or at least the version of the modern law that exists in tension with justice, is archival. The domain of approximated legal origins is reflected, then, in the first movement in which hypomnesis emerges in relation to the archive – as something less than

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memory. Again, placing responsibility for the ‘concept of the archive’ in the hands of the father of psychoanalysis, Derrida writes: Freud made possible the idea of an archive properly speaking, of a hypomnesic or technical archive, of the substrate or the subjectile which, in what is already a psychic spacing, cannot be reduced to memory: neither to memory as conscious reserve, nor to memory as rememoration, as an act of recalling. The psychic archive comes neither under mneme nor under anamnesis. (Derrida 1996, 91–92)

If the law becomes hypomnetic in its desire for, and falsification of, a memory of origins which it is forbidden nonetheless to forget, then it is also the case that there must be a method of falsification, a distancing of the law from the idea of the law. Hypomnesis invokes not simply an approximated memory but also precisely the ‘substrate’ which is always in excess of memory. As for the nature of that excess – that which is always falsified, like ivory teeth, in place of the origin – we find a felicitous analogy in the prosthesis, the substrate which most prominently accompanies hypomnesis. WRITING, SUBSTRATE AND (N)ON-TOLOGY In Archive Fever, Derrida refers back to an earlier piece (Derrida 2001b) in which he examines Freud’s note on the Wunderblock. Much like a sophisticated palimpsest, this Victorian recording device consists of a piece of celluloid paper over a wax tablet. An inscription made upon the paper, without the use of ink, leaves an impression on the underlying wax, and it will show upon the paper until the paper and wax are pulled apart and placed together again, blank and ready to begin anew. Not only does this apparatus allow for infinite use of its topmost surface – which always returns to its pristine form: the inscription is each time retained permanently on the wax – if we remove the topmost layer, it is possible to view every historic inscription at once, ‘under certain lights’. Thus, we find a ‘double system contained in a single apparatus’ (ibid., 280) of recording and erasure. This system is, to Freud’s apparent delight, wholly analogous to the psychical apparatus: the ‘becomingvisible which alternates with the disappearance of what is written would be the flickering-up . . . and passing-away . . . of consciousness in the process of perception’ (ibid., 282–283), while the wax that retains every inscription despite the refreshing of the topmost layer of the Wunderblock is analogous to the unconscious – which is precisely what psychoanalysis aims to take out and view, ‘under a certain light’.



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It is not coincidental that this materiality of wax and topsheet makes its way into Vismann’s genealogy of ‘files’: in the act of ‘cancelling’ the command to delete is also a command to displace the cancelled item with a fresh topsheet, while the development of wax inscription allows for an ever-more proximate relationship (due to the speed and immediacy of wax writing) of the record and the lived event (Vismann 2008a, 55). This appears to indicate that the accompaniment of hypomnesis, as well as the law, is irreducibly ‘material’. Yet deconstruction is not a study of material things – and cannot possibly permit itself to be construed as such.17 What does this suggest for the so-called ontology of law? How might the archive, and more specifically hypomnesis, if it is of the same nature as the law, help to define the ontology of the law, other than to differentiate the latter from itself as force or idea is differentiated from materiality? In Dissemination, Derrida elaborates upon a fable within a fable: the legend of the god Theuth (in Derrida’s extension, ‘Thoth’) as it emerges in the Phaedrus under the heading ‘The Inferiority of the Written to the Spoken Word’. Theuth had offered King Thaumus a number of inventions, among which the function of writing was held out as ‘an accomplishment . . . which will improve both the wisdom and the memory of the Egyptians’ (Plato 1973, 96). Thaumus rebukes this extollation of writing, however, since what Thoth has discovered ‘is a receipt for recollection, not memory’, in the application of which ‘pupils will have the reputation for [wisdom] without the reality’; they will be ‘thought very knowledgeable when they are . . . quite ignorant’ (ibid.). Opposed to writing is speech, which ‘behaves like someone attended in origin and present in person’ (Derrida 1981, 80). Unmediated, speech is intimately connected to the thought of the speaker and capable of announcing truth and lived experience. It is guaranteed, in other words, by presence, whereas writing is only the simulacrum of memory, which can only be false: hypomnesis. While there is not space here to analyse the path that Derrida traces from Socrates’s speech back to the supplement of the text,18 what is interesting for the question of materiality is Derrida’s further investigation of this figure of Theuth/Thoth. In the Socratic formulation, speech is attended by presence and, thus, ‘like any person, the logos-zoon has a father’ (Derrida 1981, 80), a Pater that is the chief, the capital and the good. But since it is ‘no more possible to look [these paternal things] in the face than to stare at the sun’ (ibid., 82), Socrates (so Derrida tells us) will ‘evoke only the visible sun, the son that resembles the father, the analogon of the intelligible sun’ (ibid.): that which we find by looking at reflections in the water ‘or some analogous medium’ (ibid., 84); that which exists in the ‘analogous order of the sensible or visible’ (ibid., 83). This order, however, is never the thing in itself but (as Giles Deleuze19 would have it) the sum of so many planes of exteriority.

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Writing, apparently orphaned, has no access to the protection or guarantee of its author. And yet the Egyptian god of writing is also the god of the Moon, owing precisely to his patrilineage, which ‘puts Thoth in Ra’s place as the moon takes the place of the sun. The god of writing thus supplies the place of Ra, supplementing him and supplanting him in his absence and essential disappearance’ (Derrida 1981, 89). Second, then, what difference is there, if any, between the analogous domain of water, the visible and the sensible and the substitutive movement of the moon?20 The sun withdraws each time, and escape from the play of substitution appears impossible. Finally, if speech is superior to writing because it is the unmediated sound of the ‘living breath’, ‘it goes without saying that the god of writing must also be the god of death’ (ibid., 91). But ‘death’, far from being simple non-existence or cessation of life, is the ‘prerequisite, or even the experience, of that face-to-face encounter’ (ibid., 92) with the paternal sun, God the father. This figure determines the nature, the ‘materiality’, of writing: for writing is the supplement of the living voice, of memory and truth; and while ‘the supplement is not, is not a being (on)’, it is also, and ‘nevertheless not a simple nonbeing (me on), either. . . [i]ts slidings slip it out of the simple alternative presence/absence. That is the danger’ (ibid., 109). The supplement defies the opposition of being and non-being: ‘dangerous’, in Rousseau’s formulation ‘dangerous supplement’, because it ‘is the image and the representation of Nature . . . neither in nor out of nature’ and thus ‘dangerous for . . . the natural health of Reason’ (Derrida 1992c, 89). And it is dangerous here because writing, the hypomnetic pharmakon, is a poison for memory, which it displaces with a simulacrum that allows repetition, but also forgetfulness and impotence, since the textual substrate is always alienable from true knowledge and wisdom,21 and which ‘affects memory and hypnotizes it in its very inside’ (Derrida 1981, 110). The play of absence and presence in the supplement of writing is replicated in the archive, despite its material appearance. In fact, Derrida tells us, in the note on the Wunderblock: ‘Freud does not explicitly examine the status of the “materialized” supplement which is necessary to the alleged spontaneity of memory’ (Derrida 2001b, 286)22 but that, with these several layers – topsheet, wax, inscription – and thus ‘taking into account the multiplicity of regions in the psychic apparatus, this model [the Mystic Pad] also integrates the necessity, inside the psyche itself, of a certain outside, of certain borders between insides and outsides’ (Derrida 1996, 19). Memory and repression cannot interact without a ‘domestic outside’: domestic because it is interior to the psyche but ‘outside’ the function of consciousness. Thus, Freud has introduced an ‘internal substrate, surface, or space’: ‘the idea of a psychic archive distinct from spontaneous memory, of a hypomnesis distinct from mneme and from anamnesis: the institution, in sum, of a prosthesis of the inside’ (ibid.).



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And not only in the psychic apparatus: ‘There is no archive without a place of consignation, without a technique of repetition, and without a certain exteriority. No archive without outside’ (ibid., 11). Of course, a differentiation of law and archive would say the same thing: the archive is exterior to the law. What ‘domesticates’ the substrate, however, is the capacity of the latter to infect the logos, to ‘hypnotize’ it. As with the psychic archive, so too with writing: The ‘outside’ does not begin at the point where what we now call the psychic and the physical meet, but at the point where the mneme, instead of being present to itself in its life as a movement of truth, is supplanted by the archive . . . the space of writing, space as writing, is opened up in the violent movement of this surrogation, in the difference between mneme and hypomnesis. The outside is already within the work of memory. (Derrida 1981, 109)

Once again, however, isn’t this something already well known to those who would ontologically separate – with a view to functionally recoupling – ‘law and the archive’? Vismann is right, of course, to distinguish Derrida’s ‘textual’ treatise from her own material genealogy. But a methodological impasse is not the same as an indictment, and it seems that we still lack a sufficient description of any coterminous, synonymous relationship of archive and law.23 What, then, might this interior exteriority, this (n)on-tology, add to the wider matter at hand here? Does it breach the shores of its methodological confinement? If the matter admits of a solution, it is not only because of the priority of deconstruction to philosophy and to any possible jurisprudence. It is not even necessary to make that commitment: only to concede the force of the contradictions it unearths (excavates?) from time to time. Of course, Derrida’s strategy is often to accuse metaphysicians of their own textual dependency: in Plato’s Pharmacy, for example, Socrates is a pharmacist-magician, even while he speaks; and his student Plato needs writing (hypomnesis) even to put forward something like dialectics – which cannot therefore already exist ‘inscribed in the soul’. More apropos still for our purposes: for Plato, writing is emphatically necessary to the law: This necessity [of repetition to remember] belongs to the order of the law and is posited by the Laws. In this instance, the immutable, petrified identity of writing is not simply added to the signified law or prescribed rule like a mute, stupid simulacrum: it assures the law’s permanence and identity with the vigilance of a guardian. As another sort of guardian of the laws, writing guarantees the means of returning at will, as often as necessary, to that ideal object called the law. We can thus scrutinize it, question it, consult it, make it talk, without altering its identity. (Ibid., 113; emphasis mine)

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And so on: what follows this passage is a meticulous lineage of law and writing in Platonic discourse. Vismann never considers these grecocentric pages in Dissemination while dispensing with Derrida’s pseudo-Roman ‘Imperial’ thesis, and we must begin to wonder at what difference, if any, their inclusion could have made. INTERSECTION: LAW IS ARCHIVAL Since the law and the archive share, under the pain of forgetting, a hypomnetic existence, they become not only inseparable but commensurate. It is not simply that the archive is a ‘juridical structure’ but that the law itself is, and can only be, archival: with its hypomnetic, compulsive iteration of lost origins – memories of, to misuse Agamben, ‘that which has never been’.24 But also with its strange ontology, which we have not conceded, but neither have we denied an ontology of a sort to modern law. For the law is nothing more or less than its archival structure: guaranteeing, if not its origins, then the possibility of its perpetual effort to return to ever-further iterated supplements of the origin, which proliferate internally to, and not beside, the law. NOTES 1 See Mawani (2012, 349). There is also an oblique reference to the work in Van der Walt (2005, 290). 2 For Cornelia Vismann, ‘In any attempt to describe Jacques Derrida’s mode of thinking, the word juridical comes to mind’ (Vismann 2008b, 41). 3 See Agamben (2011). 4 See, further, Vismann (2008b). 5 We may contrast Vismann’s differential relationship of law and archive to a more recent article by Renisa Mawani in which the latter queries the underdevelopment of the state of legal discussion of Archive Fever and asserts, moreover, that ‘the law is the archive’ (Mawani 2012, 351; emphasis mine). 6 See Derrida (2001a) and Rob Boyne’s illuminating analysis of the same issue (1990). 7 There is not sufficient space here to discuss the idea that modern law alone is ‘law’ insofar as it claims to have freed itself from power, violence or politics – of course, this is an ideological leitmotif rather than an actual achievement of the law, and I do not suggest that we take seriously any notions of a ‘primitive law’ or a ‘prelegal state’ in contradistinction to modernity. Rather, in a Foucaultian sense, it is with a practised epoche that we must approach this fable, in order to grasp our subject at last. See, for example, Dreyfus and Rabinow (1983). 8 See the treatment of this in two different systemic, positivist, theories of law in Kelsen (1967) and Luhmann (2004).



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9 I am drawing a parallel here with the Freud of Derrida’s text who ‘pretends to worry’ about the potentially wasteful expenditure of material in putting to the press his thesis on the death drive. It is precisely because of its destructive force that such expenditure finds its justification and, as I shall explain, the death drive has everything to do with forgetfulness and law. See Derrida (1996, 8–12). 10 The same problem is not, apparently, encountered in other disciplines. There are many examples but to cite only two: an interdisciplinary forum including speakers from political science, anthropology, archive studies, history, medicine and literature culminated in an edited collection (Hamilton et al. 2002) in which psychoanalysis is a recurring theme. Likewise, in the field of literature scholarship, Cathy Carruth (2013) analyses Archive Fever in its psychoanalytic context. 11 In Archive Fever, Derrida indicates that ‘we have no concept, only an impression. . . . “Archive” is only a notion’, this notwithstanding that he will later ask if there is already a ‘concept of the archive’ (Derrida 1996, 33) and that he will elaborate three theses ‘to do with the concept of the archive’ (ibid., 91). Verne Harris has commented on this point as follows: ‘Not only are there numerous competing concepts associated with the word [“archive”] but from within the word itself . . . there is a troubling of meaning. However we understand the word “archive”, it remains true to say that all Derrida’s work is, in a sense, about the archive’ (Harris 2002, 61). 12 For Derrida, the openness of the gate to an inaccessible law ‘fuels desire for the origin’. See Derrida (1992b, 197). 13 As with Carl Schmitt’s Hobbesian equivocation of law to politics or John Austin’s equivocation of law and sovereign command. See Schmitt (2005) and Austin (2000). On the former, see also, in general, Dyzenhaus (1998), while on the latter, see Hart (1994). 14 See Derrida (1992a). 15 See Derrida (1992b). 16 I am not, of course, the first to suggest that this is the case: see Couzens Hoy (1987). 17 Derek Attridge reminds us that ‘although sometimes misrepresented in this way, Derrida’s claims about writing do not refer to its “materiality” or physical and visible substance; on the contrary, such a notion of language, dependent as it is on the opposition between the sensible and the intelligible, is a longstanding metaphysical one’; see Attridge (1992, 9, n. 11). Indeed, Derrida says of writing that ‘written traces no longer even belong to the order of the physis, since they are not alive’ (Derrida 1981, 105) – the intimate relationship of death and writing thus prohibits the straightforward, sensible existence of the latter. 18 The available literature is wide: the already-cited work by Rob Boyne (1990) is a case in point. 19 For example, in his account of the ‘visible’ and the ‘articulable’, see Deleuze (2006). 20 ‘Nevertheless, between mneme and hypomnesis, between memory and its supplement, the line is more than subtle; it is hardly perceptible. On both sides of that line, it is a question of repetition. Live memory repeats the presence of the eidos, and truth is also the possibility of repetition through recall’ (Derrida 1981, 111).

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21 See Derrida (1981, 110). 22 Also cited in Derrida (1996, 14). 23 See my earlier comments regarding Mawani’s contextualization of archive as law around the state. 24 See Agamben (2009).

BIBLIOGRAPHY Agamben, G. 2009. ‘Philosophical Archaeology’. In The Signature of All Things: On Method. Id. Translated by Luca D’Isanto with Kevin Atell. New York: Zone Books, 81–111. Agamben, G. 2011. The Kingdom and the Glory: For a Theological Genealogy of Economy and Government. Translated by Lorenzo Chisea with Matteo Mandarini. Stanford, CA: Stanford University Press. Attridge, Derek. 1992. ‘Introduction’. In Acts of Literature, Jacques Derrida, edited by Derek Attridge. London: Routledge, 1–32. Austin, John. 2000. The Province of Jurisprudence Determined. Amherst, NY: Prometheus Books. Benjamin, Walter. 1986. ‘Critique of Violence’. In Reflections: Essays, Aphorisms, Autobiographical Writings, Id., edited by Peter Demetz. New York: Schocken Books, 277–300. Boyne, Roy. 1990. Foucault and Derrida: The Other Side of Reason. London: Unwin Hyman. Carolyn Hamilton, Verne Harris, Jane Taylor, Michele Pickover, Graeme Reid and Razia Saleh. eds. 2002. Refiguring the Archive. Dordrecht: Kluwer Academic Publishers. Carruth, Cathy. 2013. Literature in the Ashes of History. Baltimore, MD: Johns Hopkins University Press. Couzens Hoy, David. 1987. ‘Dworkin’s Constructive Optimism v Deconstructive Legal Nihilism’. Law and Philosophy 6 (3): 321–356. Deleuze, Gilles. 2006. Foucault. Translated by Sean Hand. London: Continuum. Derrida, Jacques. 1981. Dissemination. Translated by Barbara Johnson. London: Athlone Press. Derrida, Jacques. 1986. ‘Declarations of Independence’. New Political Science 7 (1): 7–15. Derrida, Jacques. 1992a. ‘Force of Law: The Mystical Foundation of Authority’. In Deconstruction and the Possibility of Justice, edited by Drucilla Cornell, Michel Rosenfeld, David Gray Carlson. Abington: Routledge, 3–67. Derrida, Jacques. 1992b. ‘Before the Law’. In Acts of Literature, Id., edited by Derek Attridge. London: Routledge, 181–220. Derrida, Jacques. 1992c. ‘ . . . That Dangerous Supplement. . .’. In Acts of Literature, Id., edited by Derek Attridge. London: Routledge, 76–109. Derrida, Jacques. 1996. Archive Fever: A Freudian Impression. Translated by Eric Prenowitz. Chicago, IL: University of Chicago Press.



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Derrida, Jacques. 2001a. ‘Cogito and the History of Madness’. In Writing and Difference, Id. London: Routledge, 36–76. Derrida, Jacques. 2001b. ‘Freud and the Scene of Writing’. In Writing and Difference, Id. London: Routledge, 246–291. Dreyfus, Hubert, and Paul Rabinow. 1983. Michel Foucault: Beyond Structuralism and Hermeneutics. Chicago, IL: University of Chicago Press. Dyzenhaus, David, ed., 1998. Law as Politics: Carl Schmitt’s Critique of Liberalism. London: Duke University Press. Freud, Sigmund. 1959. Beyond the Pleasure Principle. New York: Bantam Books. Harris, Verne. 2002. ‘A Shaft of Darkness: Derrida in the Archive’. In Refiguring the Archive, edited by Carolyn Hamilton et al. Dordrecht: Kluwer Academic Publishers, 61–81. Hart, Hubert L. A. 1994. The Concept of Law, 2nd ed. Oxford: Clarendon Press. Kelsen, Hans. 1967. Pure Theory of Law. Berkeley: University of California Press. Luhmann, Niklas. 2004. Law as a Social System. Oxford: Oxford University Press. Mawani, Renisa. 2012. ‘Law’s Archive’. Annual Review of Social Science 8 (1): 337–365. Plato. 1973. Phaedrus and the Seventh and Eighth Letters. Translated by Walter Hamilton. Harmondsworth: Penguin. Schmitt, Carl. 2005. Political Theology: Four Chapters on the Concept of Sovereignty. London: University of Chicago Press. Spielrein, Sabina. 1994. ‘Destruction as the Cause of Coming into Being’. Journal of Analytical Psychology. 39: 155–186. Van der Walt, Johan. 2005. ‘Interrupting the Myth of Partage: Reflections on Sovereignty and Sacrifice in the Work of Agamben, Nancy and Derrida’. Law and Critique 16 (3): 277–299. Vismann, Cornelia. 2008a. Files: Law and Media Technology. Translated by Geoffrey Winthrop-Young. Stanford, CA: Stanford University Press. Vismann, Cornelia. 2008b. ‘The Archive and the Beginning of Law’. In Derrida and Legal Philosophy, edited by Peter Goodrich, Florian Hoffmann and Michel Rosenfeld. Hampshire: Palgrave Macmillan, 41–54. Zartaloudis, Thanos. 2010. ‘The Archival Work of the Law: On Cornelia Vismann’. Parallax 56: 135–145.

Chapter 5

Notes on the Person and the Anthropological Machine of Law Gian Giacomo Fusco

In her analysis of the vexed question of the legal person, in the book Law’s Meaning of Life, Ngaire Naffine systematizes the spectrum of the many different interpretations of what counts as person before the law into two broad categories: the legalists and the metaphysical realists. For the legalists, the person in law is a ‘formal and neutral legal device’ which permits the acquisition of the ‘ability to bear rights and duty’ (Naffine 2009, 22). In this perspective, everything could ultimately be a person for legal purposes. Legal personality could be recognized for a river, or a piece of land, towards their protection; and in a similar fashion, though admittedly with distinct ethical and practical consequences, a foetus can be regarded as a person for specific legal purposes. The person, in the legalist perspective, is an abstract technical artefact devised and implemented to fulfil determinate juridical operations. From a quite different angle, the metaphysical realists see the person as mirroring (within the sphere of law) certain essential characteristics of human nature. Legal personality is understood as an expression of certain constitutive attributes of human beings; it corresponds to the affirmation and transposition, in law, of presupposed assumptions over the essence or the nature of human beings. Hence, only subjects adhering to a given image of the ‘human’ (usually an adult with fully developed and functioning intellectual capacities and capable of moral agency) are legally recognized as persons. For the realists, it is necessary to go beyond the abstract and empty categorization of law, and to look, instead, at human nature – and from within different viewpoints (such as philosophy, religion and science) – in order to capture its supposed primary constitutive ground, and build upon it the structure of the person (ibid., 22–24).1 The bi-partition between legalists and realists, while remaining unambiguous at a theoretical level, when confronted with the actual operations of 81

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law becomes quite problematic. The practice of law demonstrates how the legalist premises of the person, as a ‘pure’ abstract legal category, are rather untenable. The notion of the person as a fictional construction, applicable potentially to anything and anybody, clashes with the fact that the process of personification is ultimately discriminatory. As Naffine points out in looking at its concrete use, ‘we discover that the empty slot of the person has been given certain dimension, fitting some and not others’ (ibid., 57). The mask of the legal person is adhering perfectly to the ‘rational adult’ but not the animal. The exclusion of the animal is, for Naffine, paradigmatic of the fact that the ‘mask’ of the legal personality has been made ‘exclusively for human beings, especially of a rational nature, because they are thought to possess a certain moral status’ (ibid.). In whatever way it is intended, though, the legal person seems to never be immune to the presupposed metaphysical assumptions of what a human person is and should be. The image of the human being posed at the exergue of the Universal Declaration of Human Rights of 1948 is exemplary of the metaphysical postulates layering legal personality: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience’.2 This definition is the outcome of a long historical process that ‘stretched from the development of Roman law to modern declaration of rights’ (Supiot 2007, 11) and, through the interplay between law, theology and moral philosophy (and later on biological sciences too) led to the establishment of a conception of the human person that is hinged upon the idea of rationality, selfconsciousness and moral autonomy. A decisive impact on our current understanding of human (and legal) personality indeed came from Immanuel Kant. In his doctrine of ethics, men are persons since by their nature they are an ‘end into themselves’, that is to say they are beings that should not be used simply as a means.3 What confers to humans with an intrinsic value and dignity (as being an end into themselves) is their rational nature, since their inborn rational faculty ‘exist[s] as an end unto itself and not simply as a means to be utilised’ (Trendelemburg 1910, 337). Thus, human beings are persons with an eminent value thanks to their rationality, and in particular, as it is expressed in their faculty of autonomous moral agency: that is, as ‘capable of making their own decisions, setting their own goals, and guiding their conduct by reason’ (Rachels 1986, 114–117). What is perhaps more compelling in such a conception of the human and the reflected idea of legal personality is the selective nature of the category of person. The election of the rational, cognitive and moral factors as discriminant essential elements of the human qua persona renders, in fact, everything that is not attributable to such factors, non-personal. Not only cannot animals be persons, since they lack rationality and moral agency, but also the



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corporeal existence of the human seems to be excluded from the person. As noted by Roberto Esposito, in line with the evolution of Western thought, the person corresponds to what ‘in a human being is other than and beyond the body’:4 it represents the sphere of the human that differs from the thingness of the bodily (animal) life. This particular aspect is better expressed by the thought experiment that Brian Garrett has offered: I can make perfectly good sense of the possibility that I might gradually become an entirely bionic being. My various bodily and brain parts may gradually be replaced by functionally identical bionic parts. Provided that the changes preserve my continuing mental life, abilities and appearance, we would have little hesitation in saying that I survived a process of total replacement . . . [therefore] we have good reason to think that the relation between a person and the human being they share their matter with is not that of numerical identity. (Garrett 1998, 6438)

The non-pertinence with the thingness of the body frees the person from the materiality of human life. In this regard, the person represents the ‘category of the self’ (Mauss 1985) corresponding and delimiting the whole sphere of human existence that is not (purely or merely) biological. Thus, personality is an attribute that humans possess, which does not coincide ‘with the living being in its entirety, inside of which it is nonetheless inscribed’ (Esposito 2012, 76). In the light of this, the process of legal personification assumes a particular anthropological function.5 Cases in which a legal personality has been assigned to land and to rivers are well known, and they are still raising questions as to the status of the legal personality of corporations. In such cases, it is a matter of allocating liability and rights to a non-human entity, that is, deciding on the personalization of a thing. However, when there comes the moment, in law, of deciding on the natural ‘person’ and on the conditions of its organic and social living, the recognition, adjudication and assignment of personality could have unpredictable and contentious consequences. The fact that it is the person (as a rational sentient moral agent) who is the bearer of the fundamental rights, obligations and liabilities, the decision of what counts as person, is, essentially, a decision over the status of a life, a decision about what can autonomously live (and what has the right to live) and what is at the disposal of the decision-making power of others. Legal personification, then, is never neutral, since it corresponds to the recognition, in a subject, of the attributes and values defining the humanity of the human being qua person, as opposed to the presumed mere biological-animal life. Hence, this chapter unfolds a discussion of the concept of the person, which, via a philosophical approach, will observe law in its creative function

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as a proper anthropological machine (in the particular sense that Giorgio Agamben has given to such a notion),6 establishing each time the limits of the human. While belonging to the order of fictions, as a technical product of the ars juris [art of law] (Thomas 2002, 135–136), the legal person is, at the same time, other to and in need of the natural person. In this regard, the legal person could be seen as the ‘embodiment’ of the law producing what can be called a functional classification of subjects. MASK The roots of the term ‘person’ are grounded in the Latin persona, which originally meant ‘mask’ (tragic mask, ritual mask and ancestral mask) (Mauss 1985, 13) but also ‘part, duty and dignity’ (Semeraro 1994, 514). In Latin literature, the term ‘persona’ has been employed to describe the characters of dialogue or of oration and the social role and the function of an individual, as well as the temperament and personality of a subject. The semantic sphere of such term gradually expanded: from the original meaning of a mask, the term ‘person’ began to signify the ‘social role’, the specific public function of an individual and subject, conceived from the point of view of his or her moral characteristics.7 The etymology of the term ‘persona’, however, is quite contested. A popular hypothesis is that such a word may be the outcome of a ‘Greek borrowing made by the Etruscans’ of prosōpon [πρόσωπον] (Mauss 1985, 15), which stands for ‘face’ and ‘theatrical mask’. Others, instead, have insisted on a different origin. For the philologist Giovanni Semeraro, for example, persona recalls the value of the meaning of pars (part), function, office of a subject, while the reference to a mask is a derived one. The juxtaposition with prosōpon, he claims, misled the etymological interpretation (Semeraro 1994, 514), concealing to a certain extent the juridical ground of the emergence of the term persona. What is, instead, undoubtable is that, for the Romans, the person was a ‘basic fact of law’ (Mauss 1985, 14). Along with things (res) and actions (actiones), the person was one of the foundational categories of Roman law. As Gaius, in his Institutiones, synthesizes, ‘The whole of the law by which we are governed relates either to persons, or to things, or to actions’.8 For the Romans the person is a unitary notion, designating the human being in the context of law; persona is the human subject as projected in the juridical context, that is, as a legal actor. The person is the side of human existence to which legal relationships, obligations and imputations are pertinent,9 and it is starting from its original legal definition that the term ‘person’ widened its semantic spectrum and acquired further meanings, which in this sense must be considered as derivative.10



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As Yan Thomas pointed out, in Roman law persona is a ‘technical artefact’ that constitutes a mask (a cover), which gives to the real subject – independently from its concrete attributes and specificity – a ‘unique and stable’ identity to be deployed in the sphere of law (Thomas 2002, 126). The rights of the individuals, and the juridical acts, were not attributes of the integral subject but only of the person; ‘the person was first of all the creditor, the debtor, the proprietor, the actor and the defendant, etc.’ (ibid.). A single individual, therefore, could embody different ‘persons’, in relation to different legal contexts, in which he or she is involved. The person was properly a legal mask that the individuals should impersonate in order to gain the benefit of certain rights and take parts in disputes. Along with the reference to specific figures and roles, pertinent to a given legal relationship, the ‘person’ applied also to ‘stable, functional categories and statutes’ (ibid., 127), which structured Roman society. Gaius’s testimony, in this regard, is quite explicit: The first division of men by the law of persons is into freeman and slaves. Freeman are divided into freeborn and freedmen. The freeborn are free by birth; the freedmen by manumission from legal slavery. Freedman, again, are divided into three classes, citizens of Rome, Latins, and person on the footing of enemies surrender at discretion. (Gaius, I, 9–12)11

The law of persons did not concern the individuals understood in their singularity but, rather the ‘functional classes, the norms of which dictated the effect of the different juridical roles (personae)’ (Thomas 2002, 127) that the individuals could bear according to their social and legal positions. The juridical actor comes into existence through the acquisition of a person – an authentic mask, a double of the natural existence of the subject. The discrepancy with the corporeal existence, which we have already highlighted, represents a constant to the very ‘concept’ of the person. What is at stake in this famous category of Roman law, as Thomas observed, is the concealment of ‘the concrete individuality behind an abstract identity’. These two modalities of being cannot be confused, since ‘the first is biographic the second is statutory’ (ibid., 135–136). The biographic, singular and concrete dimension of human existence is excluded from legal consideration, and at the same time it is posed as a necessary support to the mask-person. The person forms a kind of fictional cover: it represents one side of the human subject as a bearer of legal imputations, social habits and abstract identities. The concrete, biographical, singular existence of the subject is opposed to the person, and it is excluded from the realm of personality, while at the same time it is included as the hidden support of the person in the constitution of human legal subjectivity.

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PERSON AND NATURE While it is accepted that the most accurate translation of the term ‘persona’ is ‘mask’, the juridical meaning of the person is rather difficult to establish, and this is simply because the term ‘person’ neither has a specific legal meaning nor refers to a specific object of law. The person is rather a functional device enabling the characterization of human beings outside of their specific singularities, through their subsequent encapsulation and division into categories. This becomes explicit in the interplay of the terms ‘persona’ and ‘homo’, as seen in Gaius. According to the law of the person (ius personarum), all human beings (omnes homines) are included into the macro-category of persona and then divided into subcategories. As it has been noted, the person could be understood as a genus (genre), as a superior class, capable of encompassing all human beings and then dividing them into numerous species corresponding to the whole range of roles that could be embodied in the juridical (and social) life of the individual (Agnati 2009, 13). Persons are, thus, divided primarily between personae serviles et liberae (free persons and slaves). In this classification, the person stands (as in Linnaeus’s taxonomy) as the genre, the adjective, is, instead, a predication of the subject, what specifies properly the character and position of an individual (ibid.). The servus (slave), the pater familias (the father), the filius familias (the son), uxor (wife) and so on are all specification, ‘persons’, of a single genre persona – which corresponds, in this precise sense, to a transposition of the life of ‘all human beings’ into the realm of law. Persona is configured – in Roman law – as a technical artefact that includes, and, at the same time, excludes from the realm of law the single living existence of the subject, since, as we have seen earlier, the person excludes every reference to the bodily substrate of the subject and represents properly a mask covering and organizing the life of the member to a community. When the law of the person classifies all human beings (omnes homines) as persons, it includes in its legal consideration all subjects as homines (human), that is, as natural living entities. As dictionaries report, in fact, the term ‘homo’ refers to an unspecified life that is common to all human beings.12 Thus, the fiction of the person operates as a legal device that includes, and at the same time excludes, human life, in law, and then classifies it under different functional categories. The law recognizes the equality of the life of subjects as homines and states their difference as personae. In this sense, humans are ‘equal’ by nature and ‘different’ by law (Agnati 2009, 22). Essentially, the category of person (and in general the ius personarum) served as an instrument for the organization and division of the social body into different actors. This specific performance, however, entailed a peculiar contradiction. The law of the person, in fact, acknowledges all human beings



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as persons, including the subjects that do not have – by definition – a person. The principal division (summa divisio) between freeman and slave, which Gaius expounds just after having distinguished between persons, things and actions, establishes the inclusion of the slave into the category of the person (personae serviles), which, in Roman law, notoriously, is defined as a beingwithout-a-person (servus personam non habet). The Justinian Institutiones expose the complexity of this operation with clarity when it is declared that ‘the slave is a human being; he/she is also a person when considered in a natural state; but in the civil state he/she has no personality (aprosōpos) since the law does not give him/her one’ (Justinian, Inst. Lib. I, 3.77).13 In this sense, the law operates processes of personification and de-personification, inclusion and exclusion, which had material consequences on the life of the slave. Along with other categories, such as the wife and the progeny, the slave was alieni iuris14 (Gaius, I, 48), that is, a subject under the power and the command (potestas) of a freeman. The freeman, here, can act according to his rights and duties, the slave (the wife but also the son) instead – not having a person – remains in the direct possession of the freeman. The slave ‘is a thing among the others composing a fund’ (Justinian, Inst. Lib. I, 3.77),15 the patrimony, and is in direct disposition of his proprietor. The legal classification of the individual in Roman law establishes the inscription in the law of the person of something that is by its legal status opposed to the person: the ‘thing’ (res). The initial distinction between persons is, at this point, subjected to a distortion, and what is at the very beginning excluded from the realm of the law of the person (the res: the thing) re-enters it in the form of the slave, who does not have a person, and is (or becomes) a thing. What is crucial is that the reification of the slave, as opposed to the personification of the freeman, is a specific performance of the law. The freeman has the ‘natural faculty that everybody has of doing what he/she likes, as long as it is not forbidden by law’; the status of the slave, instead, ‘is established by the law of nations [jus gentium]’ (Justinian, Inst. Lib. I, 3.79).16 Since the law possesses the faculty to reify human beings, it has, at the same time, the power to render a thing into a person (as it is the case in the institution of the manumission). It becomes clear, at this point, how the law claims for itself the faculty of transforming the very nature of subjects through categorization. The division into different social roles, under Roman law, corresponded to a process of dehumanization and rewriting of the limits of the human through a reduction of certain living beings to the status of things. Therefore, as Esposito has pointed out, the distinction between things and person is a rather mobile limit, putting in relation two different entities through different degrees of separation. Along with slaves, that is human beings reduced to the status of things, he suggests, ‘there were many others, alieni iuris, whose subjective dimension continually crept

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toward the objective . . . Uxores in matrimonio, filii in potestate, mulieres in manu, liberi in mancipio, addicti, nexi, auctorati, ducti’; these were figures the status of which ‘slid into one that was very close to that of slavery’ and things (Esposito 2015, 92). The division between persons and things does not separate ‘different classes’ neatly, but rather it ‘arranges them into a unity consisting of two asymmetrical parts, one of which is subjugated to the other’. Therefore, ‘the slave does not belong entirely to the sphere of the person or to that of the thing, but to the indefinite area that brings them together and juxtaposes them at the same time’ (ibid., 91). PERSONIFICATION In the Roman juristic language (and in its social and moral semantic register) the person was conceived properly as a mask, excluding any reference to the natural person, to the real living existence of humans. As such, it was purely an abstraction, belonging to the large family of the fictional artefacts populating Roman law. When early Christian authors borrowed the term, though, they operated a radical alteration towards the naturalization of the person. Significant in this sense is the canonical passage from Boethius, who, by linking the human person to rationality, tracked the way for the subsequent modern conception of the human person. In Contra Eutychen, Boethius wrote that the person is naturae rationabilis individual substantia (the individual substance of a rational nature) (Boethius 1968, 84–85). What is peculiar to this conception, as Giorgio Agamben noted, is that ‘persona always refers to a natura that is its subiecta and without which it cannot subsist’ (Agamben 1999a, 19). Nature, therefore, is separate from the person, and it is included as a subjectum, as a hidden substance of a personal rationality. The person, in contrast, is the rational side of a natural support. Early Christianity elaborated a notion of the person that, on the one hand, replicated the structure of the juridical and moral mask as separated from the natural existence of the individual and, on the other hand, established a tighter relationship between the person and human nature. The inherence of the natural element of the corporeal human dimension to the person – as postulated of contemporary law – finds its root in the Christian conception of human being and in the juridical speculation of the Middle Ages. In the theological discourse over the nature of human beings, there emerged the figure of the person as the singular unity of two radically different substances: the corporeal dimension generated naturally by human beings and the soul produced by God. A person becomes the indivisible union of a natural and a divine (rational) element, that entity which is formed by the union of a corporeal (animal) substance, and a



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rational divine essence,17 the incarnation of which renders possible the genesis of the person. The Christian conception of the person, to be precise, is drawn according to the doctrine of the hypostatic union as the modality of the incarnation of Christ, in which in una persona (one person) lies duae substantiae (two substances), one corporeal (human) and one divine. The Christological speculation had a decisive influence in ‘Christian anthropology’, via drawing a parallel between the son of God and the duality of human nature (between body and soul), the flesh and the sphere of rationality/morality. The theological speculation, then, produced the conception of the human person as imago dei: the incarnation of God in his son, through which the divine acquires a face and a person. However, the two substances of the human as an image of God do not compose a harmonic balance of values but rather form an ‘asymmetric bipolarity between two areas endowed with different values’, one of which is demoted to a lower level and considered as in the possession of the other. The superiority of the rational/moral part of the human being ‘draws its roots from the insuperable difference that in the person of Christ subordinates the human element to the divine’ (Esposito 2015, 36). As the Christian doctrine teaches, a human being is a person and not just some thing; therefore, the human as a person is ‘superior to the material world’, since it is endowed with a ‘spiritual immortal soul’. The animal corporeal dimension of our body is, thus, something infinitely less valuable than human spirituality, something accidental that should be controlled and mastered. Although the theological interpretation of the person gives space to the thingness of the bodily existence of men, it re-proposes to a certain extent the ‘exclusionary inclusion’ of the non-personal (the flesh, the body) into the person. The mere animality of the human person represents the concrete support for the embodiment of a soul. It constitutes the subjects, in both senses of the word, as posed at the bottom of the person and as ‘under the power’, ‘in possession’. The onto-theological ground of modern Western jurisprudence has transmitted to contemporary legal thought the conceptual apparatus of the ‘person’, and its specific articulation between juridical capacity and the real substrate of human bodily existence. Even though it could appear quite surprising, in the light of his biography and scholarly approach, it is possible to find an echo of the theological terminology in Hans Kelsen’s conception of the so-called physical person. ‘Traditionally’, he suggests, in his Pure Theory of Law, the ‘person’ is the term used to define the subject holder of rights and obligations. Jurisprudence divides the person in two: ‘physical person’ (natural person) when the holder of rights is a human being and ‘juridical person’ when the subject is an entity (a corporation, a municipality, the state, etc.). While the first is considered as a real person, the second has the characteristic

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of artificiality and is regarded as fictitious. ‘Efforts have been made’, Kelsen claims, ‘to prove that even juristic persons are real’; however, ‘these efforts are futile because analysis shows that even the so-called physical person is an artificial construction of jurisprudence’; the natural person is only a ‘juristic’ person (Kelsen 1967, 172). The physical person is not, in this light, corresponding to the human being that is holding specific rights and obligations, but, on the contrary, it is the ‘unity’ of the whole ‘rights and obligations’ that regulate the behaviour of a specific subject of rights. The person is not different than the norms giving it rights and obligations: The legal order imposes obligations upon, or confers rights to, human beings, that is, that legal order makes human behaviour the content of obligation and rights. ‘To be a person’ or ‘to have a legal personality’ is identical with having legal obligations and subjective rights. The person as holder of obligations and rights is not something that is different from the obligations and rights, as whose holder the person is presented – just as a tree which is said to have a trunk, branches, and blossoms, is not a substance different from trunk, branches, and blossoms, but merely the totality of these elements. The physical or juristic person, who ‘has’ obligations and rights as their holder, is these obligations and rights – a complex of legal obligations and rights whose totality is expressed figuratively in the concept of ‘person’. ‘Person’ is merely the personification of this totality. (Ibid., 173)

Kelsen’s theory of the legal person, in its attempt to re-affirming the fictitious essence of such a legal category, resonates as explicitly Christological. The person, in the light of his hyper-positivist approach, is the ‘personification’ of the unity of the total of obligations and rights that a subject has. The existence of the subjectivity – of the natural person – is, thus, the presupposition of the unity of a person, and at the same time it is what the person is not – since the person is just the unity of ‘obligations and rights’. The physical person is a product of law, which expounds its subjective-individual referent through the inclusion (and exclusion) of a natural datum. THE ANTHROPOLOGICAL MACHINE The legal device of the person, since its origin in Roman law, operates by dividing and opposing the juridical existence of personality and the natural dimension of human organic (and biographical) life. As Jacques Maritain expresses it, in law, these two spheres are in a way played dialectically against each other. The human being, Maritain writes in The Rights of Man and Natural Law, is in possession of ‘rights because of the very fact that it is a person’, and it is a person because it is a ‘master of itself



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and of its acts’ (Maritain 1971, 65). In line with his Christian conception of the person, Maritain thinks of the faculty of being-a-master-of-itself as the ability to fully control the ‘animal part’, constituting, along with rationality, the dual nature of a human being. ‘A human being is a person precisely because (and only if) it maintains full control over its animal nature’; the animal nature of humans, therefore, serves as a confrontational site, ‘against’ which to ‘measure’ the sovereign status of a person (Esposito 2012, 89). At this point, the impossibility of acquiring a legal personality for animals finds an explanation on the ground of the (negative) ontological difference between ‘being human’ and ‘being animal’. The human is a person – legally recognized as such – because it is not an animal; the animal cannot be a person since it is not human, that is, a ‘rational entity’ capable of acting as a moral agent. The animal and the person represent two poles whose essence is defined by their dialectical opposition and whose composition and articulation ‘traditionally’ determines the nature of the human as a ‘rational animal’ (the Aristotelian zōon logon echon). Paradoxically, the legal process of personification, as suggested in the previous section, necessitates what it logically excludes: the animality of human organic life, the corporeal existence of the body or, to use a term dear to Simone Weil, the ‘impersonal’.18 It is, in fact, the biological dimension of the human, the ultimate ground addressing the establishment of the legal person and the determination of the criteria of the subjects of rights. Legal subjects are identified on the basis of their biological (and biographical) specificities: gender, age, physical and mental conditions and so forth. In so doing, the law confers the capacity of bearing rights and acting autonomously in the juridical sphere, following (and marking) a proper ‘biological threshold’. It is common for children and the mentally incapacitated, while bearing rights, to be considered as ‘legally incompetent’ (Kramer 2002, 69) and therefore as being under the ‘responsibility’ of others. Infants, senile people and subjects in a vegetative state are considered as not capable of being rights holders and therefore are legally recognized as not being fully legal persons (Harel 2005, 194). This implies, though, that the ‘space’ that separates the person from the non-person (the human being from the organic life of men; the personal from the impersonal; the human from the animal, etc.) is populated by subjects whose legal status is an uncertain hybrid of personality and impersonality: the non-person (the fetus), the quasi-person (the infant), the semi-person (the elderly, when no longer mentally or physically able), the no-longer-person (the patient in a vegetative state) and, finally, the anti-person (the fool) (Esposito 2012, 97). The law does not limit itself to the determination of what is (or should be) a person and what is not (or should not be) a person but produces a

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classification in which the limits of the personal and the non-personal are indeterminate. The person (what characterizes the standardized ‘subject of rights’) is, thus, a pole, which, opposing the non-person (the organic life of the body, the animal, etc.), creates a space in which it is legally possible to establish and to recognize forms of life with different compositions of personality. In so doing, though, the law works like what Agamben has defined as an anthropological machine. In Western culture, Agamben claims, a dispositive is at work, which in different fields of knowledge determines the essence of the human. This machinery consists of a ‘symbolic and material mechanism’ (Calarco 2008, 92), fuelled by the opposition between the human and the animal (or inhuman), which produces a basin of meanings from which it becomes possible to deduce the essential traits of human nature. To explain the working of the anthropological machine, Agamben lingers on the very definition of Homo sapiens, noting how Linnaeus, at the moment of classifying human beings, found himself before an enigmatic problem: it was not possible to identify specific features separating human beings from other species – especially apes. So to solve such a riddle, Linnaeus ‘does not record – as he does with other species – any specific identifying characteristic next to the generic name Homo’. The binary denomination homo is followed by the ‘old philosophical adage: nosce te ipsum [know yourself]’ (Agamben 2002, 25). The very definition of Homo sapiens depicts the human as an entity that to be such has to recognize himself or herself: ‘Man has no specific identity other that the ability to recognise himself’ (ibid., 26). Lacking a specific predetermined essence, the Homo sapiens, Agamben writes, ‘is neither a clearly defined species nor a substance; it is, rather, a machine or device for producing the recognition of the human . . . . Homo is a constitutively “anthropomorphous” animal . . . who must recognize himself in a non-man in order to be human’ (ibid., 29). The absence of a given nature renders the human in need of finding its place in the word searching for a point of confrontation, by looking at what it is not. The negation of the human (in the form of the animal), therefore, becomes an essential part, a presupposition of being human. The auto-comprehension of the human is marked by the necessary absorption of its negation – which, as such, cannot be part of human being. The inclusion/exclusion of the animal into the human, hence, happens immanently to the very existence of human beings, and it is not a transcendental (or simply epistemic) condition. However, this implies necessarily the recognition of the presence, in the concrete living existence of humans, of an element that essentially negates the characteristics of the very humanity of the human: in Agamben’s terminology ‘bare life’. Standing precisely in a relation of exception, the inhuman and the human are in a relation of presupposition, which consequently open up the possibility



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of making the two poles of the machine indeterminate. Agamben writes that the machine necessarily functions by means of an exclusion (which is also always already a capturing) and an inclusion (which is also always already an exclusion). Indeed, precisely because the human is already presupposed every time, the machine actually produces a kind of state of exception, a zone of indeterminacy in which the outside is nothing but the exclusion of an inside and the inside is in turn only the inclusion of an outside. (Ibid., 37)

The dialectical determination of the human/animal distinction gives space to the appearance of moments and figures in which the two poles become indistinguishable: the musselmann, the néomort and the overcomatose but also the slave, the barbarian and foreigner are the outcome of the animalization of the human or invariably of the ‘humanisation of the animal’ (ibid.). The proximity with the logic underlying the device of the person is here evident. We could say that the anthropological machine is in motion in law, through the legal dispositive of the person. The set of figures that Agamben reports as produced by the anthropological machine are in fact also established through a juridical process of de-personalization, of a gradual abandonment from and by the law of those subjects falling under such categories.19 The slave, the foreigner and the barbarian, or the subjects living in a vegetative state, or indeed the musselmann, are all actual manifestations at the very plane of the fading away of the ‘person’ (as a subject of law capable of holding rights, but also as a moral and social agent and ultimately as human) and point towards the exposition of a condition in which it is no longer possible to determine the limits of the personal and impersonal. Historically, the law has always contributed to the generation and affirmation of specific anthropologies. Every production of rules and norms draws its own model of the ‘person’, which is, crucially, never the simple registration of the human nature in law but the elaboration and selection of what could be accommodated within the limits of law as a ‘proper’ sovereign subject. The person classifies and creates standards; it is an abstraction, working properly as a model of reference for the establishment of legal subjectivity. As such, the person represents the core mechanism of the anthropological machine of law, addressing the procedure through which it becomes possible to determine what could be included in and excluded from the law; what could be recognized legally by law with its ‘natural’ characteristics; and what necessitates another kind of metamorphosis, rendered possible by the legal machine of fictional categorization, so to become a subject according to a given law.20 But, in doing so – as the history of the West has taught and continues to teach us – the law assumes the distinctive and ever-present risk that the person can be deprived of its rights.

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NOTES 1 Naffine divides the position of the ‘metaphysical realists’ into three different approaches: the rationalists, the religionists and the naturalists. The first conceives rationality as the most prominent aspect defining human nature; the law in this perspective should preserve the humans primarily as rational beings. The second, instead, in line with the Christian values, sustains that human life is worth being protected by law thanks to its intrinsic sanctity. From this perspective, it is necessary to be human for being considered as a person. The naturalists, instead, see the human being primarily as a natural corporeal sentient being capable of feeling pleasure and pain, and the law should protect human living needs as a ‘sophisticate animal’. 2 The Universal Declaration of Human Rights, Article 1. 3 See Kant (1981). On the Kantian conception of the person, see also Wolff (1973), Rachels (1986) and Herbert (1999). 4 Esposito (2012, 76). 5 On the anthropological function of law, see Supiot (2007) and Sacco (2007). 6 See Agamben (2002). 7 See Comerci (1997) and Agnati (2009). 8 Omnes ius quo utimur, vel ad personas pertinent vel ad res vel ad actiones (Gaius I.8). See Gaius (1904). 9 See Agnati (2009). 10 See Comerci (1997). 11 See Gaius (1904). 12 The Oxford Latin Dictionary defines homo as ‘a human being (of either sex) . . . (in contrast or distinction from the non-human)’; s.v. homo. 13 See Justinian (1987). 14 See Gaius (1904). 15 See Justinian (1987). 16 Ibid. 17 See Thomas (2002, 2011). 18 See Weil (1994). 19 See Agamben (1998, 1999b). 20 See Rodotà (2013).

BIBLIOGRAPHY Agamben, Giorgio. 1998. Homo Sacer: Sovereign Power and Bare Life. Translated by Daniel Heller-Roazen. Stanford, CA: Stanford University Press. Agamben, Giorgio. 1999a. The End of Poem. Translated by Daniel Heller-Roazen. Stanford, CA: Stanford University Press. Agamben, Giorgio. 1999b. Remnants of Auschwitz: The Witness and the Archive. Translated by Daniel Heller-Roazen. New York: Zone Books.



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Agamben, Giorgio. 2002. The Open: Man and Animal. Translated by Kevin Attell. Stanford, CA: Stanford University Press. Agnati, Ulrico. 2009. ‘ “Persona iuris vocabulum” Per un’interpretazione giuridica di “persona” nelle opere di Gaio’. Rivista di Diritto Romano IX: 1–41. Boethius. 1968. The Theological Tractates: The Consolation of Philosophy. Translated by Edward Kennard Rand and S. Jim Tester. Cambridge: Cambridge University Press. Calarco, Matthew. 2008. Zoographies: The Question of the Animal from Heidegger to Derrida. New York: Columbia University Press. Comerci, Giuseppe. 1997. ‘L’individuo e la cittá: l’idea di “persona” da Terenzio a Cicerone’. Orpheus XVIII: 29–65. Esposito, Roberto. 2012. Third Person. Translated by Zakiya Hanafi. Cambridge: Polity Press. Esposito, Roberto. 2015. The Machine of Political Theology and the Place of Thought. Translated by Zakiya Hanafi. New York: Fordham University Press. Gaius. 1904. Gai Institutiones: or, Institutes of Roman Law. Translated by Edward Poste. Oxford: Clarendon Press. Garrett, Brian. 1998. ‘Persons’. In Routledge Encyclopedia of Philosophy 1.0, edited by E. Craig. London and New York: Routledge, 6437–6439. Harel, Alon. 2005. ‘Theories of Rights’. In Blackwell Guide to the Philosophy of Law and Legal Theory, edited by William Edmundson and Martin Golding. Cambridge: Blackwell, 191–206. Herbert, Gary. 1999. ‘Immanuel Kant: On Treating Persons as Persons’. The Personalist Forum 15 (2): 247–256. Justinian. 1987. Justinian’s ‘Institutes’. Translated by Peter Birks and Grant McLeod. Ithaca, NY: Cornell University Press. Kant, Immanuel. 1981. Grounding for the Metaphysics of Morals. Translated by James W. Ellington. Indianapolis, IN: Hackett Publishing Company. Kelsen, Hans. 1967. Pure Theory of Law. Translated by Max Knight. Berkeley: University of California Press. Kramer, Matthew H. 2002. ‘Rights Without Trimmings’. In A Debate Over Rights: Philosophical Enquiries, edited by Matthew H Kramer, NE Simmonds and Hillel Steiner. Oxford: Clarendon Press, 7–112. Maritain, Jacques. 1971. The Rights of Man and Natural Law. Translated by Doris C. Anson. New York: Gordian Press. Mauss, Marcel. 1985. ‘A Category of the Human Mind: The Notion of Person; the Notion of Self’. In The Category of the Person: Anthropology, Philosophy, History, edited by Michael Carrithers, Steven Collins and Steven Lukes. Cambridge: Cambridge University Press, 1–25. Naffine, Ngaire. 2009. Law’s Meaning of Life: Philosophy, Religion, Darwin and the Legal Person. Oxford and Portland: Hart Publishing. The Oxford Latin Dictionary. 1968. Oxford: Clarendon Press. Rachels, James. 1986. The Elements of Moral Philosophy. Boston, MA: McGraw-Hill. Rodotà, Stefano. 2013. ‘Antropologia dell’homo dignus’. civilistica.com 2 (1): 1–13.

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Sacco, Rodolfo. 2007. Antropologia giuridica. Contributi ad una macrostoria del diritto. Bologna: Il Mulino. Semeraro, Giovanni. 1994. Le origini della cultura europea. Vol. II, Dizionari etimologici, Basi semitiche delle lingue indeuropee. Firenze: Olschki. Supiot, Alain. 2007. Homo Juridicus. Translated by Saskia Brown. London: Verso. Thomas, Yan. 2002. ‘Le subject concret et sa personne. Essai d’histoire juridique retrospective’. In Du droit de ne pas naître: À propos de l’affaire Perruche, edited by Cayla Olivier and Yan Thomas. Paris: Gallimard, 91–175. Thomas, Yan. 2011. ‘Fictio Legis’. In Les opérations du droit. Id. Paris: Le Seuil, 133–186. Trendelenburg, Adolf. 1910. ‘A Contribution to the History of the Word Person’. The Monist 20 (3): 336–363. Weil, Simone. 1994. ‘Human Personality’. In An Anthology, Id., edited and introduced by Sian Miles. New York: Penguin Press, 69–98. Wolff, Robert Paul. 1973. The Autonomy of Reason: A Commentary on Kant’s Groundwork of the Metaphysics of Morals. New York: Harper and Row.

Chapter 6

Immanentism and Incorporation How Law Makes Corporations Tara Mulqueen

For to understand and evaluate that part of law which serves to organize the life of associations one must attempt to discover what it really is that enters the realm of law at this point and gets its organization from law. (Gierke 1935, 140)

Few would still argue that the corporate person is anything but a fiction of law.1 The belief that incorporation is an expression of the ‘real personality’ of groups is thought to have faded away in the first half of the 20th century, in favour of a far more practical understanding of incorporation as a right and a shorthand for a more complicated reality.2 However, the more pragmatic and rights-based approaches, rather than resolving the question of the relationship between law and life raised by the idea of the real personality of groups, have only deferred and obscured it. In particular, the idea of incorporation as a right, articulated by H. L. A. Hart, reproduces the ‘reality’ of this personality and the identity between law and life it portends, while losing sight of what is at stake in this relationship. This chapter proposes a critical reassessment of the older debates on corporate legal personality. Drawing on the work of French philosopher Jean-Luc Nancy, I argue that corporate personality can only be a fiction, not because it lacks reality but because any such unity, in which the collective (or the individual) is conceived as an immanent totality, is impossible. Such an immanent totality is persistently undermined by our very sociality itself, what Nancy describes as the ‘inoperative community’, which is the condition of possibility for forms of collective unity such as the corporation, but that exceeds them and prevents totalization (Nancy 1991). While groups can and do self-authorize and create their own ‘personality’, this does not necessarily entail that they take on the specific form provided 97

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through legal recognition nor that these forms are commensurable. Not every ‘we’ is the same. However, by treating incorporation as a matter of right, we implicitly accept that the corporate unity created by a fiction of law is an accurate reflection of a sense of unity experienced or articulated by groups. Legal recognition as a body corporate, as I will argue, is a specific form of recognition that involves the immanentization of a once-transcendent metaphysical reference, derived from medieval political theology.3 This gesture becomes immanentist or totalitarian as the form comes to be read as natural, whether as ‘right’ or as real personality supplanting other forms of social relation. Overall, this chapter concerns how the law makes objects such as bodies corporate and then effaces the conditions of this constitution. REAL AND FICTITIOUS PERSONALITY The jurisprudential debate over the nature of the personality of groups has its origin in the 19th century, in the work of Otto von Gierke and Friedrich Karl von Savigny. They were both part of the German historical school of legal theory, which arose in opposition to efforts to codify the law in Germany, as had been done earlier in France. Law, according to those within this school of thought, is not simply the product of reason but is ‘determined by the whole past of the nation, and therefore cannot be changed arbitrarily’ (Kantorowicz 1937, 332). Law is derived from a particular Volksgeist (spirit of the people).4 However, the school was divided in their views on which particular history should be the true source of law in Germany. The Romanists, and Savigny foremost among them, believed that Roman law was the true source. In contrast, for the Germanists who split from the Romanists in the 1840s, the true source of German law was German history.5 Their competing perspectives on the personality of groups derive from their reading of these historical sources. On his reading of Roman law, Savigny advocated the doctrine of persona ficta, that is the idea that collective unity could only be a fiction.6 The only naturally occurring ‘jurally capable’ person is the ‘individual Man’ (Savigny 1884, 2). Under positive law, this ‘naturally’ inherent ‘jural capacity’ can be denied for any number of reasons, and it may also be extended to ‘artificially created’ persons and specifically to collectivities (ibid.). This extension of personality is a ‘pure fiction’, and the juridical person so created is ‘a Person who is assumed to be so for purely juristical purposes’, having no personality other than that generated by the fiction (ibid., 176). Savigny also advocated what is known as the ‘concession theory’: not only was the legal personality of associations a fiction, but it could also be granted only by an explicit concession. While he distinguishes between associations which occur naturally and those which occur arbitrarily, none of



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them can claim a unified personality without the concession of a sovereign authority.7 This was a particularly severe reading of Roman law that had been ‘cleansed’ of any compromises with other systems and irregularities arising under feudalism. This theory, and the principles of Roman law espoused more generally by Savigny, supported the political purposes of centralization and at the same time avoided purely formalistic codification. In his assertion of the real personality of groups, Gierke thoroughly rejected this position. The personality of ancient German fellowships, Gierke contended, did not come from any sovereign but instead arose in a decentralized fashion, reflecting their own sense of unity. Just as the individual is a person before legal recognition occurs, so too is the group. While law may aid in social organization, associations do not receive their personality from law. Such personality arises organically. Gierke insists ‘that we recognize in the social body the unity of life of a whole arising out of separate parts, – such a unity as we do not find elsewhere except in natural living creatures’ (Gierke 1935, 145). As individuals associate, they do so by transferring part of their own living self to the group; it is from this transference of life that groups attain their own life.8 This produces a real living unity in the association; it is a ‘spiritual unification’ (Gierke 1935, 146). While not visible as such, it is no less real than a visible organism. This social unity can be known by its ‘sensible impressions’ (ibid.). We know that the state, for instance, exists not because we can somehow see it as a tangible entity but, rather, through its effects (and affects): ‘a regiment marching to ringing music; we notice voters who cast their votes into the urn; at a public demonstration we are roughly pushed back by a squad of policemen’ (ibid.). Even the individual, as a continuous and unified person, is similarly known only by these disparate perceptions, in spite of the fact that one can see a body. Thus, as regards legal recognition, Gierke asks whether it is possible ‘that law, when it treats organized associations as persons, is not disregarding reality, but giving reality more adequate expression? Is it not possible that human associations are real unities which receive through legal recognition of their personality only what corresponds to their real nature’ (ibid., 143). It follows, for Gierke, that if group personality is real and occurs naturally, then legal recognition is a process by which that personality is given its due effect in law and not one which creates that personality and unity, as the fiction theory suggests. However, the difference between these two theories may not be as significant as it initially seems. The fiction theory would deny corporate personality to groups except by the sovereign concession of a fictional or artificial personality. The theory that their personality is real, while ostensibly advocating the autonomy of groups, imposes that personality on them, whether they like it or not. This much can be seen in how advocates of the real personality of groups have interpreted key instances of legal recognition in practice.

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In England, Gierke’s writing was particularly influential with a group loosely designated as the English pluralists, including Frederic Maitland, Harold Laski and John Neville Figgis. In their reading, the theory of the real personality of groups appeared to find affirmation in the law’s recognition of corporate groups not of its own making.9 One commonly cited example is the controversial Taff Vale (1901)] case, concerning the Amalgamated Society of Railway Servants, a registered trade union that had gone on strike.10 Their employer, the Taff Vale Railway Company, sought to sue the union for damages. Following the Trade Union Act of 1875, trade unions were regarded as unincorporated entities and could sue and be sued, but this did not expressly extend to liability for torts. Lord Macnaghten asked: ‘Has the Legislature authorized the creation of numerous bodies of men capable of owning great wealth and of acting by agent with absolutely no responsibility for the wrongs they may do to other person by the use of that wealth and the employment of those agents?’ (at paragraph 437).11 The simple answer to this question was ‘no’. He argued that in giving trade unions certain corporate privileges, and particularly a registered name, the legislature had created the facility for holding the trade union responsible in tort. The court thought it unconscionable that a trade union should be able to escape liability over a technicality, when there was no doubt that the group, as a group, was responsible for the incidents in question. The pluralists, including Gierke, heartily praised the decision, in spite of the fact that the union had explicitly not sought this recognition.12 The judgement ‘showed how real was its existence in despite of statute [sic]’ (Laski 1917, 272). While the reasoning of the judgement was not about the ontological or moral existence of the corporation, Figgis suggests that ‘the judgment bears witness to the fact that corporate personality, this unity of life and action, is a thing which grows up naturally and inevitably in bodies of men united for a permanent end, and that it cannot in the long run be denied merely by the process of saying that it is not there’ (Figgis 1913, 64). It does not matter why the decision was made, only that the reality of the group was recognized by the court. Maitland triumphantly cites a line from Albert Venn Dicey, who had finally admitted this real personality commenting on the case, writing that ‘when a body of twenty or two thousand or two hundred thousand men bind themselves together to act in a particular way for some common purpose, they create a body which, by no fiction of law but from the very nature of things, differs from the individuals of whom it is constituted’ (Dicey 1904, 513). This tendency to praise the legal recognition of groups regardless of the ends they serve can also be seen in Maitland’s praise of the Companies Act of 1862, which extended limited liability to joint stock companies. The act was ‘splendidly courageous’ for having recognized the reality of the groups in question (Maitland 1959, xxxviii).



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The tensions inherent in this position have not been lost on some of the critics of the debate. Gierke and those he influenced have been roundly critiqued and dismissed for their almost mystical conception of the reality of groups, as well as for Gierke’s reliance on ‘organicism’. They were strongly rebuked by their American contemporaries, particularly Morris Cohen and John Dewey.13 Cohen and Dewey were wary of the metaphysical implications of both the fiction theory and the real personality of groups. Cohen argued explicitly against the German historical school, suggesting that the only real difference between Savigny and Gierke was on where they would locate the Volksgeist, whether in the state or association. Instead, Cohen argues that legal personality is a question of fact and, hence, a predominantly practical question. He further suggests that there is a difference between the idea that one group can be distinguished from the next by virtue of some distinctive characteristics, which is a practical matter, and the idea that a group has a real personality. Groups do not conduct any of the activities associated with a natural person’s life. These two types of personalities are merely analogous, not identical, as Gierke had argued; it is precisely in the analogy that their fiction resides (Cohen 1919, 681). There is a key difference, as Cohen’s critique suggests: the unity that is created by law is not necessarily the same as that created or claimed by the group itself. However, Gierke was himself aware of the limits and dangers of the organic metaphor.14 For its shortcomings, his idea of the unity of groups was an incredibly nuanced one, which allowed at the same time for plurality within groups and for individuals to retain their individuality outside of the group. Moreover, not all associations had this organic personality; some forms, such as those created entirely by fiction, were devoid of life (e.g. the ‘dead fund’) (Teubner 1988, 134). In addition, Gierke thought that legal recognition was necessary for associations, not just because denying it would be unjust but also for the sake of the Rechtstaat (‘state of laws’). When associations are entirely private, they do not participate in the public life of the state and have no sense of obligation to a broader community (Gierke 1990, 11). Gierke also recognized that the unity of the individual was ultimately just as intangible as the unity of the group. In this sense, it is not the analogy that is the problem for the advocates of real personality, who rightly saw them as sharing a lack of tangible material unity, but the implication of their supposedly shared reality for legal recognition. These questions were ultimately left unresolved by Dewey and Cohen, who preferred to focus on what they deemed to be more practical questions, such as on how to create collective responsibility. The metaphysical question was laid to rest in favour of a more pragmatic approach to collective personality.15 As Dewey wrote, a ‘ “person” signifies what law makes it

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signify’ (Dewey 1926, 655). However, this pragmatic approach only managed to defer the metaphysical problem rather than resolve it. The debate over corporate personality was quietly abandoned, with an undefined consensus seeming to form around the idea that corporate personality could only be a legal fiction. POSITIVISM AND NATURALIZATION The question was taken up again some 30 years later by Hart. By the time Hart turned his attention to the question of corporate personality, he was able to claim that ‘the juristic controversy over the nature of corporate personality is dead. If so we have a corpse, and the opportunity to learn from its anatomy’ (Hart 1983, 36). While claiming to provide a novel approach to the question of corporate legal personality, Hart curiously re-inscribed both fiction and reality by naturalizing the legal form of the body corporate.16 Distancing himself from the terms of the old debate, Hart observed that legal concepts do not have a direct relationship with the world. As such all of the previously held ideas about corporate personality – that it stands in for a more complex reality, that it is the recognition of the real personality of groups, that it is simply a fiction – are misleading. None of these ideas help to elucidate the specific legal meaning of the corporation. Instead, he suggests that legal words can be defined only in relation to the context in which they are used: the existence of a legal system. When one refers to a corporate entity, this ‘assumes a special and very complicated setting, namely the existence of a legal system with all that this implies by way of general obedience, the operation of the sanctions of the system, and the general likelihood that this will continue’ (Hart 1983, 27). Without this context, there is no way to ascertain what corporate personality means. What matters for Hart is not some essentialized idea of what the corporation ‘is’ but the circumstances under which the law will recognize one: the particular rules that must be followed in order to take advantage of the privileges and duties associated with corporate personality. The terminology of the corporation only serves to indicate which legal rules are being applied. As he explains, The lives of ten men that overlap but do not coincide may fall under separate rules under which they have separate rights and duties, and then they are a collection of individuals for the law; but their actions may fall under rules of a different kind. . . . And then we may speak in appropriately unified ways of the sequence so unified, using a terminology like that of corporation law which will show that it is this sort of rule we are applying to the facts. (Ibid., 30)



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This way of defining legal terms on the basis of their function within specific contexts represents a turn to ‘factual terms’ (ibid., 34). In ordinary interactions, one could determine the legal meaning of the corporation, which would not require ‘mentioning fiction, collective names, abbreviations, or brackets’ (ibid., 36–37). All of the relevant meaning would be exhausted by understanding the legal consequences of the terms. Hart allows that someone may choose to follow the legally prescribed course of actions or not, which will have its own consequences regarding the meaning of the law. That someone has a right does not mean that conditions will be sufficient for them to exercise it. However, metaphysical readings of corporate personality ‘confuse the issue because they look like eternal truths about the nature of corporations given us by definitions; so it is made to appear that all legal statements about corporations must square with these if they are not to be logically inconsistent’ (ibid., 45). While allowing that groups may disregard the law, Hart does not have anything to say as to whether the law ought to recognize groups that are not of its own making nor, indeed, as to what the consequences of recognition might be, not in terms of law but for the group itself. The former is considered to be a political question, rather than a legal one, while the latter is simply not addressed. However, the approach followed by Hart in The Concept of Law offers further clues as to the consequences of recognition, or non-recognition. A central element of his argument is that law is not simply repressive but that it also functions in a facilitative capacity. While there is no direct relationship between legal concepts and social life, by which he seems to mean that there is no necessary identity between them, the law plays an important role in the constitution of social life: the law does not represent social life but rather creates social relations. As Roger Cotterrell summarizes: ‘Hart’s form of linguistic philosophy does not necessarily claim to be concerned with words or statements as representations of social reality. The statements are, in themselves, the social reality. They constitute it’ (1989, 91). Without rules of a certain type, namely power-conferring rules, many aspects of social life would be simply unrecognizable. Particularly, when the law confers powers, as it does with marriages and wills and also by the privilege of incorporation, it can become the case that social life would be unrecognizable without them. ‘If such rules of this distinctive kind did not exist we should lack some of the most familiar concepts of social life, since these logically presuppose the existence of such rules’ (Hart 2012, 32). Despite the centrality of these rules to everyday life, Hart curiously maintains that the consequence of failing to comply with them, if not made criminal by some other provision, can only be a ‘nullity’, ‘without legal “force” or “effect” ’ (ibid., 28).

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In the case of a rule of criminal law we can identify and distinguish two things: a certain type of conduct which the rule prohibits, and a sanction intended to discourage it. But how could we consider in this light such desirable social activities as men making each other promises which do not satisfy legal requirements as to form. This is not like the conduct discouraged by the criminal law, something which the legal rules stipulating legal forms for contracts are designed to suppress. The rules merely withhold legal recognition from them. (Ibid., 31)

The confluence of these two positions produces a tension in Hart’s analysis. By insisting that the meaning of corporate personality cannot be understood apart from its relation to other legal rules, Hart curiously both maintains the idea of the corporate personality as a legal fiction (albeit without naming it as such) and naturalizes that fiction, by presupposing an identity between law and other social forms. Despite their very different orientations, Hart’s conclusions are not wildly different from those of the old debate. At the same time, by disregarding the effects of non-recognition as insignificant, he takes for granted precisely the relationship between law and life that motivated the old debate over the real personality of groups. IMPOSSIBILITY AND IMMANENTISM Legal forms do not only derive their meaning from the systems that give them effect – and they are not purely fictions – but they are also not simply reflections of reality. Neither the fiction theory nor the real personality of groups seems to adequately capture the relationship between law and life given by the corporate form. Attempts to transcend or sidestep the debate have merely deferred or obscured the metaphysical questions it raised. As I will argue, they are constituted by histories that give rise to them and they shape the relations they recognize. The body corporate, the form that creates corporate legal personality, is derived in part from medieval political theology. It imports, as I will describe later, a particular form of unity based upon a transcendent metaphysical structure. Collectivities that are then ‘recognized’ through this form are given that unity, which only within a particular historical context comes to be seen as a reflection of their ‘natural’ unity. However, as Nancy’s approach to sociality suggests, this unity is impossible and can only be a fiction. Nancy’s ontology and his emphasis on, what he calls, the singular-plural structure of being help to show how sociality is shaped by, but also exceeds, the forms that are imposed upon it. The body corporate, rather than being defined only by reference to the legal system as a whole, has its own history. The legal model of incorporation is derived in part from the medieval church, where the idea of the corpus



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mysticum (mystical body) had once referred to the idea of the body of Christ in heaven.17 Following the Investiture Struggle (1078–1122), the term came to be applied to the earthly collectivity of the church. The initial adaptation of the corpus mysticum transferred the model of the natural body of Christ to the collective body of the church. In a direct application of an anthropomorphic metaphor, Christ in heaven served as the head, while the church was the body. The church derived its unity from the unity of Christ, who could be unified because he existed outside the world. This transcendent metaphysical structure was secularized within the church itself, before it came to be used in secular legal theory and government. The collectivity of the church came to stand on its own, rather than referring directly to the figure of Christ. Gradually, the term corpus ecclesiae mysticum (the mystical body of the church) was adopted and used independently of the corpus mysticum (which always referred to Christ). This, for Ernst Kantorowicz, was a pivotal moment of secularization, when the idea of the church became ‘almost juristic’ (1957, 201). While the idea of the corpus mysticum continued to be used, it was with a new juridical connotation. Once secularized, the idea was easily transferred to the state. As Kantorowicz writes, The noble concept of the corpus mysticum, after having lost much of its transcendental meaning and having been politicized and, in many respects, secularized by the Church itself, easily fell prey to the world of thought of statesmen, jurists, and scholars who were developing new ideologies for the nascent territorial and secular states. (Ibid., 207)

The corpus mysticum acquired a more specific legal connotation in the idea of a fictional person and was then applicable not just to the whole of Christian society but also to subordinate collectivities within the church. The specific development of the idea of a fictitious person comes from a somewhat separate strand of thought related more closely to the development of subordinate collectivities, which were thought of through the Roman law idea of universitates.18 One of the key challenges for corporational theory was the problem of continuity in time. Unity could happen on an ad hoc basis, but this unity did not guarantee immortality. In order to resolve this, the idea of the fictional or artificial person was invested with a conception of angelic time. Angels, Kantorowicz suggests from a reading of scholastic philosophy, were thought to occupy their own temporal sphere, the aevum, between that of God and that of man. God’s time was eternal and could not be periodized, while the time of man was finite. Like man, angels were created by God and thus had a definite beginning, but they were also eternal and did not die. With these characteristics, Kantorowicz asserts that there is a clear connection to the fictitious person of the jurists: ‘Little wonder then that finally

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the personified collectivities of the jurists, which were juristically immortal species, displayed all the features otherwise attributed to angels; for the legal “fictitious persons” were, in fact, pure actualizations and thus appeared like the next of kin of the angelic fictions’ (ibid., 282). By the mid-15th century, terms such as the corpus had begun to enter English law, which is further indicative of the influence of the church. Interim terms such as communitas perpetua (perpetual community), communitas perpetua et corporata (perpetual and corporate community) and corpus corporatum (corporate body) were common until in 1440, when the phrase ‘one of perpetual and corporate commonalty’ was used in a charter granted by Henry VI to Kingston-upon-Hull (Davis 1961, 218). In practical terms, the shifts in language from community to derivations of corpus and finally the use of ‘corporate’ indicate a movement away from land communities and the specific groups that inhabit them, to aggregate entities which existed in their own right and which were ‘clearly separated as a legal personality’ (ibid., 219). As an indication of this, it can be noted that in charters the term ‘successors’ came to replace ‘heirs’, signalling the move from a largely personal right to an abstract one. The new corporate language also included a ‘more formal concession of element of perpetuity’, described as a movement from ‘being’ a community to ‘having’ a community (ibid., 220). In early modern England incorporation was a narrow public affair, with incorporation granted only by Royal Charter or an Act of Parliament, and corporations functioning largely as extensions of the state. In this capacity, the corporation largely maintained the transcendent structure it had inherited from medieval theology. However, in the 19th century this changed significantly with the Joint Stock Companies Act of 1844. This act created the possibility of incorporation by registration, facilitating the view that incorporation by the state was a matter of right, not simply a reserved privilege, and a means of entry and participation in the ‘free’ market. As Taylor explains, while this was not the immediate intention of the new legislation, the act effectively ‘transform[ed] incorporation from a closely-guarded privilege into a freely-available right’ (Taylor 2006, 135). As associations of various types were made to rely upon the state for recognition and legitimacy, they were given the body corporate form as though this was the natural expression of their own unity, rather than the politico-theological artefact that it is. Thus, far from being a reflection of the ‘real’ personality of groups, as Gierke argues, the body corporate imports its own historicity in connection to a medieval political theology and imposes it on the groups that receive legal recognition. The law, in recognizing associations as bodies corporate, gives them a secularized model of a transcendent unity, irrespective of whatever unity they may claim for themselves.19 In positing the reality of group personality, and the function of legal recognition in giving effect to



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this reality, Gierke – despite his own historicism – seems to overlook that the form through which law recognizes a group (and particularly so in the case of an incorporation) is not the same as that which the group may have created for itself (as though the law could function in a purely instrumental capacity). The body corporate, the form that creates corporate legal personality, is derived from a medieval political theology. It does not matter if this status is freely given, or a narrowly guarded privilege. Any identity with the world reflects not its ability to approximate or give form to what groups may perceive as their own unity but the penetration of law in everyday life. The similarity between the individual and the group, for Gierke, was an indication of their shared reality, but this led him to underestimate the constitutive and potentially deleterious effects of legal recognition. If, however, this similarity is maintained but read instead as a shared fiction, it allows for a differentiation between different claims to individual and collective unity, and an analysis of how the law might impose a particular understanding of a collective unity on groups through recognition. Nancy, for instance, suggests that individual and collective unity must always be a kind of fiction, because any such unity is impossible. The pretence to unity is both predicated upon and simultaneously undermined by an inoperative (dèsoeuvrement) sociality. It is an ‘originary or ontological “sociality” ’ or the idea that we are always-already in common with one another, prior to and co-extensive with all other social forms, including legal ones (Nancy 1991, 28). This sociality is, in one sense, a form of community but not a community of individuals who come together incidentally for a cause or specific purpose, nor is it a preconceived unity, such as the nation. It is rather the inescapable community of a shared finitude – a birth and death that can only be experienced for us by others, in community. Nancy explains, ‘Only the community can present me my birth, and along with it the impossibility of my reliving it, as well as the impossibility of my crossing over into my death’ (ibid., 15). We do not experience our own birth or death; rather, it is experienced in and through community, always by others. As Maurice Blanchot writes: ‘This is what founds community. There could not be a community without the sharing of that first and last event which in everyone ceases to be able to be just that (birth, death)’ (Blanchot 1988, 9). Being, for Nancy, is always being-with; there is no prior individual who then associates with others; rather, we are always already in association. As he writes, ‘Being cannot be anything but being-with-one-another, circulating in the with and as the with of this singularly plural coexistence’ (Nancy 2000, 3). This sociality is both the condition of possibility for the designation of collectivities and associations of any kind, as well as individuals, even as such groups would efface or deny it by assuming their self-sufficiency. It is also the source of their persistent impossibility. The excess (or ecstasy) of sociality ‘defines the impossibility, both ontological and gnosological,

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of absolute immanence (or of the absolute, and therefore of immanence) and consequently the impossibility either of an individuality, in the precise sense of the term, or of a pure collective totality’ (Nancy 1991, 6). While such formulations of the singular plurality of being may seem like ‘desperate tautological abstraction’, the challenge is to think ‘absolutely and without reserve, beginning from the “with”, as the proper essence of one whose Being is nothing other than with-one-another’ (Nancy 2000, 34–35). In relation to the question of corporate personality, this prior ‘with’ means that any unity claimed by individual or collective will necessarily be provisional and incomplete, and inherently fictional. Real unity, ontologically, whether the unity of the individual or that of the collectivity, as an ‘immanent totality’, can only be achieved in death, in ceasing to be (ibid., 32). This status does not mean they do not have any effect or presence in the world, only that they cannot be fully realized without a transcendence brought about by death. ‘Impossible, yet there it is!’ as Georges Bataille exclaimed of ‘sovereignty’ (Bataille 1991, 243). However, some claims to a collective unity may attempt to fully manifest themselves in the world or realize an essential community; this is particularly true of sovereignty but also accompanies the idea of incorporation more generally. When incorporation is taken to be a right, and a reflection of a natural or real unity, as became the case in the mid-19th century, it makes community and collectivity an essence, obscuring the inoperative sociality that makes it possible. As Nancy suggests, ‘Economic ties, technological operations, and political fusion (into a body or under a leader) represent or rather present, expose, and realize this essence necessarily in themselves. Essence is set to work in them; through them, it becomes its own work’ (Nancy 1991, 3). The attempt to manifest this unity in the world is what Nancy calls immanentism or totalitarianism. Totalitarianism is not to be confused with, or restricted to, ‘designating certain types of societies or regimes’ but should instead be seen ‘in the general horizon of our time, encompassing both democracies and their fragile juridical parapets’ (ibid.). The historical quality of immanentism reflects the particular theological inheritance of modern political structures and the secularization of once theological concepts. ‘Totalitarianism’, as Ian James describes, ‘would be predicated on a loss of the principle of transcendence and the attempt to overcome such a loss by seeking to realize this principle in a single figure, to realize this figure here and now within the totality of the social body or community to the exclusion of all other possibilities’ (James 2005, 164). It is precisely these ‘other possibilities’ that are at stake in the debate over the real personality of groups, and legal recognition more broadly. Insofar as the body corporate form becomes naturalized, whether through a conception of right or as the real personality of groups, it becomes more difficult to think outside of these forms. They evoke ‘the total immanence or the total



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immanentisation of the political in the social’, which dramatically reduces and obscures the possibility of alterity (Lacoue-Labarthe and Nancy 1997, 115). Outside of corporate forms that impose and immanentize a metaphysically transcendent unity, there are many possibilities for forms of association (and ideas of singularity) that ‘do not stem from a will to realise an essence’ or that do not take sovereignty as their model (Nancy 1991, xl).20 Collective or individual unity is always a fiction of a sort, but such a fiction is not commensurable, such that the unity created or recognized by the state will be the same or equivalent to that which may come from the group itself. Not every ‘we’ expresses an immanentist unity, but it is this immanentism that the collectivity takes from law when recognized as a body corporate. To this end, it may be that among the earlier approaches to corporate personality, Gierke appreciated this significant ‘stake’ best. While he overlooked the fact that the legal form of the body corporate, as it were, could not accommodate the reality of the group, he understood that the intersection between law and life was precisely the point of concern and ultimately political consequence. ‘One must attempt to discover’, he wrote, ‘what it really is that enters the realm of law at this point and gets its organization from law’ (Gierke 1935, 140). NOTES 1 For a recent overview of approaches to the corporation within legal theory and legal studies more broadly, see Deakin (2017). Economic approaches centred on the corporation as a ‘nexus of contracts’ have dominated since the 1980s. 2 See Barkan (2013, 3). These perspectives come from Hart (1983) and Cohen (1919), respectively. 3 See Kantorowicz (1957). 4 The definitive statement or manifesto of the school came from Savigny in his 1814 pamphlet ‘On the Vocation of Our Age for Legislation and Jurisprudence’. See Stein (1999, 116). 5 See Stein (1999, 118); also Heiman (1977, 56–68). 6 For an overview of Savigny’s peculiar reading of Roman law, see Heiman (1977, 27–33). 7 Savigny’s reading of the doctrine of persona ficta was far more stringent than Pope Innocent IV’s original articulation of the idea, which most certainly did not also include the concession theory. Communities, towns and villages have a ‘natural’ existence. The ‘Roman Colonies’, by contrast, were arbitrary. Some others, such as ‘Artisan Guilds’ ‘occupy a middle position between the two forms’ (ibid., 180). 8 See Heiman (1977, 9). 9 English law was consistently held to have avoided the harshest aspects of the doctrine of persona ficta because of the existence of the trust. See Maitland (2003) and Pollock (1911).

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10 Taff Vale Railway Co v. Amalgamated Society of Railway Servants (1901) UKHL 1. 11 Notably trade unions have never been considered as persons in law in the United Kingdom and remain unincorporated associations to the present day. The Trade Disputes Act of 1906 effectively reversed the Taff Vale decision. 12 Indeed, trade unions were particularly sceptical of incorporation (and most forms of legal recognition). And they weren’t the only ones – many long-standing English associations, such as the Inns of Court, had no interest in taking on such a form, as it was understood to entail greater control by the state. See Pollock (1911, 224). 13 See Dewey (1926, 655–673) and Cohen (1919, 673–690). 14 See Heiman (1977, 23). 15 Laski, for instance, moved away from his original support of the real personality of groups as a direct result of Cohen’s critique. See Runciman (1997, 198, n. 6). 16 For a more extensive version of this critique, see Mulqueen (2017). 17 See Kantorowicz (1957, 195–210). 18 The main associational categories of Roman law were societates, collegia, universitates and corpora – a diversity not dissimilar to the categories of English law, with societas including those groups that operate without any direct sanction from the state; collegia as craft gilds and groups of priests. Most important among these were the ‘subordinate political communities’ designated by universitates, which included civitates, municipia, coloniae and vici. Davis explains that ‘the term corpus was the technical legal term implying the recognition and sanction of the collegium or universitas by the state, but universitas was frequently used synonymously with it, and collegium was also used with the presumption that it was a legal corpus’ (Davis 1961, 224). 19 Peter Fitzpatrick (2007, 162) would refer to this as a kind of ‘deific substitute’. 20 See also Nancy (1997, 89).

BIBLIOGRAPHY Barkan, Joshua. 2013. Corporate Sovereignty: Law and Government under Capitalism. Minneapolis: University of Minnesota Press. Bataille, Georges. 1991. The Accursed Share, Volumes II and III. Translated by Robert Hurley. New York: Zone Books. Blanchot, Maurice. 1988. The Unavowable Community. Translated by Pierre Joris. Barrytown, NY: Station Hill Press. Cohen, Morris R. 1919. ‘Communal Ghosts and Other Perils in Social Philosophy’. The Journal of Philosophy, Psychology and Scientific Methods 16 (25): 673–690. Cotterrell, Roger. 1989. The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy. Philadelphia: University of Pennsylvania Press. Davis, John P. 1961. Corporations: A Study of the Origin and Development of Great Business Combinations and of Their Relation to the Authority of the State, Vol. II. New York: Capricorn Books.



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Deakin, Simon. 2017. ‘The Corporation in Legal Studies’. In The Corporation: A Critical, Multi-Disciplinary Handbook, edited by Grietje Baars and Andre Spicer. Cambridge: Cambridge University Press, 47–63. Dewey, John. 1926. ‘The Historical Background of Corporate Legal Personality’. Yale Law Journal 35 (6): 655–673. Dicey, Albert Venn. 1904. ‘The Combination Laws as Illustrating the Relation between Law and Opinion in England during the Nineteenth Century’. Harvard Law Review 17 (8): 511–532. Figgis, John Neville. 1913. ‘The Great Leviathan’. In Churches in the Modern State. London: Longmans, Green and Co, 54–98. Fitzpatrick, Peter. 2007. ‘What Are the Gods to Us Now? Secular Theology and the Modernity of Law’. Theoretical Inquiries in Law 8 (1): 161–190. Gosden, Peter H. J. H. 1961. The Friendly Societies in England, 1815–1875. Manchester: Manchester University Press. Hart, Herbert Lionel Adolphus. 1983. ‘Definition and Theory in Jurisprudence’. In Essays in Jurisprudence and Philosophy. Oxford: Oxford University Press, 21–48. Hart, Herbert Lionel Adolphus. 2012. The Concept of Law. Oxford: Oxford University Press. Heiman, George, ed. 1977. ‘Introduction’. In Otto Gierke: Associations and Law: The Classical and Early Christian Stages. Toronto: University of Toronto Press, 1–68. James, Ian. 2005. The Fragmentary Demand: An Introduction to the Philosophy of Jean-Luc Nancy. Palo Alto, CA: Stanford University Press. Kantorowicz, Ernst H. 1957. The King’s Two Bodies: A Study in Mediaeval Political Theology. Princeton, NJ: Princeton University Press. Kantorowicz, Hermann. 1937. ‘Savigny and the Historical School of Law’. Law Quarterly Review 53 (3): 326–343. Lacoue-Labarthe, Philippe, and Jean-Luc Nancy. 1997. ‘Opening Address to the Centre for Philosophical Research on the Political’. In Retreating the Political, edited by Simon Sparks. London: Routledge, 107–121. Laski, Harold J. 1917. Studies in the Problem of Sovereignty. New Haven, CT: Yale University Press. Maitland, Frederic William. 1911. ‘Moral and Legal Personality’. In The Collected Papers of Frederic William Maitland, Volume III, edited by H. A. L. Fisher. Cambridge: Cambridge University Press, 304–320. Maitland, Frederic William, ed., 1959. ‘Introduction’. In Political Theories of the Middle Age. Boston, MA: Beacon Press, vii–xlvi. Maitland, Frederic William. 2003. ‘Trust and Corporation’. In State, Trust and Corporation, edited by David Runciman and Magnus Ryan. Cambridge: Cambridge University Press, 75–130. Mulqueen, Tara. 2017. ‘Naturalising the Myth: Hart, Biopolitics and the Body Corporate’. Australian Feminist Law Journal 43 (2): 251–272. Nancy, Jean-Luc. 1991. Inoperative Community. Translated by Simona Sawhney. Minneapolis: University of Minnesota Press. Nancy, Jean-Luc. 1997. Sense of the World. Foreword and translated by Jeffrey S. Librett. Minneapolis: University of Minnesota Press.

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Nancy, Jean-Luc. 2000. Being Singular Plural. Translated by Robert Richardson and Anne E. O’Byrne. Stanford, CA: Stanford University Press. Nancy, Jean-Luc. 2016. The Disavowed Community. Translated by Philip Armstrong. New York: Fordham University Press. Nicholls, David. 1975. The Pluralist State. London: The Macmillan Press Ltd. Pollock, Frederick. 1911. ‘Has the Common Law Received the Fiction Theory of Corporations?’ Law Quarterly Review 27: 219–235. Runciman, David. 1997. Pluralism and the Personality of the State. Cambridge: Cambridge University Press. Stein, Peter. 1999. Roman Law in European History. Cambridge: Cambridge University Press. Taylor, James. 2006. Creating Capitalism: Joint-Stock Enterprise in British Politics and Culture 1800–1870. Woodbridge: The Boydell Press. Teubner, Gunther. 1988. ‘Enterprise Corporatism: New Industrial Policy and the “Essence” of the Legal Person’. The American Journal of Comparative Law 36 (1): 130–155. von Gierke, Otto. 1935. ‘The Nature of Human Associations’. In The GenossenschaftTheory of Otto von Gierke, edited by John D. Lewis. Madison: University of Wisconsin Press, 139–157. von Gierke, Otto. 1990. Community in Historical Perspective, edited by Antony Black. Translated by Mary Fischer. Cambridge: Cambridge University Press. von Savigny, Friedrich Carl. 1884. Jural Relations; or the Roman Law of Persons as Subjects of Jural Relations: Being a Translation of the Second Book of Savigny’s System of Modern Roman Law, edited and translated by William Henry Rattigan. London: Wildy and Sons.

Chapter 7

Icons of Control Deleuze, Signs, Law Nathan Moore

INTRODUCTION1 Is law structured like a language? To put this question in a different way, is law a matter of fate? If we consider the work of Deleuze and Guattari, it becomes apparent that both questions must be answered in the negative. Deleuze and Guattari instead develop a concept of regimes of signs, so as to broaden an analysis otherwise restricted by language, linguistics and the signifier. What is at stake here is an entire ethic of thought: does the sign stand for the subject or the event? If the former, then one is confronted with a logic that is ultimately statistical, corresponding to Foucault’s analysis of the management of the population (humanity). If the latter, one deals with a logic of sense and the creativity of a people. To translate this into laworientated terminology, one deals either with the law and laws, on one hand, or with jurisprudence,2 on the other. However, it should not be thought that the stakes are distributed across a continuum contained between reactionary and progressive laws; to pose the issue in this way already falls under the statistical manipulation of the population (‘which laws would benefit the greatest number of people?’). Rather, jurisprudence is the mode of practising the law, where the law is engaged with anew in each and every situation. What Kelsen calls ‘human behaviour’3 is that which causes the law to be problematized and for this reason allows it to be put into practice. The distinction is between law as an action4 and law as a power: in this latter sense the law is unthought, remains unproblematized (unless it is the false problem of how to more efficiently apply it) and serves as a block to the creation of new modes of being – it restricts human behaviour. This power of law has reached a new level of intensity within the current condition of globalization. While in this chapter I will not look to the 113

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processes of globalization,5 this term indicates a definite epoch in which law is rapidly ceasing to be dominated by those characteristics described by Foucault as disciplinary, to become instead a problem of control. This chapter is then concerned with two specific movements: a movement towards a legal semiotic derived from the work of Deleuze and Guattari and a movement towards thinking law as control rather than discipline. It will come as no surprise if these two movements have much in common. THE SIGN If we begin with the signifier and the signified, we will not get very far. Instead, we will be condemned to a vicious circle where, once more, we must perpetually undertake the quest of the signifier. The name of this circle is paranoia,6 and against it Deleuze and Guattari pose schizophrenia – an altogether less respectable condition. How are we to then understand the schizo sign? Arguably the two most important reference points for Deleuze and Guattari on this question are Louis Hjelmslev and Charles S. Peirce. It is Peirce that I want to pay particular attention to in this chapter. Peirce theorizes the sign into three types, as symbol, index and icon. In On a New List of Categories he describes them thus: 1st. Those whose relation to their objects is a mere community in some quality [icons] . . . 2d. Those whose relation to their objects consists in a correspondence in fact [indices] . . . 3d. Those the ground of whose relation to their objects is an imputed character [symbols].7 In her study of Peirce, The Machinery of Talk, Anne Freadman explains that what distinguishes these three different types of sign are ‘the grounds of their claim to be representations, and to be representations of what they represent’.8 In Peirce’s system a sign is a sign of something,9 but the whole problem (and what distinguishes the three ‘types’ of signs) is the grounds by which a sign comes to represent what it is not. There is then, in any sign, a problem of legitimacy: on what grounds can it be legitimately said that a representation acts as an icon, index or symbol? Obviously, this problem involves the further issue of interpretation: what is the proper mode of interpreting the sign? However, we should be careful not to equate the ground with the act of interpretation. The ground is the condition of interpretation, yet it is also more besides: if not, then we are confronted once more with a vicious circle in which a sign is legitimated by



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a further sign, itself legitimated by yet another sign and so on in an infinite regress of interpretation.10 What is it that then distinguishes the ground from mere interpretation? An answer to this question is given by another Peirce scholar, T. L. Short, but first we must distinguish more clearly between two of the three types of sign. A symbol is an imputed sign, meaning that it requires interpretation: the relation between the sign and its object or referent must be thought. We can see here how interpretation becomes an infinite regress, because each symbol, in order to signify, must be thought via another symbol: ‘In short, since meaning cannot be located in any thought-sign, it must be found in the very process by which one thought interprets another’.11 On the other hand, the index is a sign regardless of whether it is actually interpreted or not,12 because its relation to what it represents is a matter of circumstance. Peirce gave a number of examples of indices, including a weathercock and a pointing finger: the weathercock is a sign of the direction of the wind, while the finger indicates what it points to. With the index, the relation between sign and referent is not a matter of interpretation but rather a function of designation, an indication that ‘there is’ without describing what ‘is’.13 For Short, the index acts as a brake on an otherwise-infinite process of interpretation, by designating a limited circumstance that constrains this process by relating it to a relevant matter at hand. As Short writes, The index picks out a particular of an otherwise signified type, which is then made the subject of a predicate. . . . It follows that if the index is directly connected to its object, then so is the cognition, through the index it contains. Thus a cognition does not have to be the interpretant of a preceding cognition in order to have an object.14

Following from this, Short makes another interesting point on this subject: that a symbol is not a matter of infinite interpretation because such interpretation need only be a possibility, rather than actualized. Within a particular circumstance, a sign need not be actually interpreted so long as potential interpretations exist as a consequence of the particular circumstance in question (i.e. what is designated): something is indicated, but this is not at all the same thing as asking ‘what does it mean?’15 Because the propensity-to-be-interpreted is a potential, it is orientated towards the future. Stating it in this way brings us to a fork in the road: the ground of the sign is either the event or teleology. Short argues for the latter: ‘I shall argue that the end-directedness of semeiosis accounts for significance’s essential features’.16 In doing so, Short is careful to distinguish between what is merely mechanical, on the one hand, and what is a matter of variation and selection, on the other.17 A sign is significant because of selecting the most

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appropriate meaning from the potential meanings available, these latter being statistically determined variations of meaning.18 As Short sums it up, ‘To act purposefully is to interpret something as a sign which, if it obtains, will make that action appropriate to its goal’.19 The argument for telos as the grounds of representation makes perfect sense given Short’s analysis of the index and potentiality: a circumstance is identified as the sum of its possible meanings, the selection of meaning being dependent upon the purpose to be achieved. We can immediately point out that the problem with this analysis is that it fails to account for how the variations themselves are generated. In other words, how is it that a potential meaning already signifies a possible outcome for selection? The answer must be, to use Saussure’s terminology, that langue is already posited as such and thereby determines the possible variable meanings for selection. This is supported by Short’s statement that Peirce’s ‘mature semeiotic, because it is teleological, accounts for the intentionality of semeiosis sans consciousness; and thus it is able to explain thought’s intentionality as due to thought’s being a special form of semeiosis’.20 It is of little account whether intentionality is contained within the mind or vice versa; in either case, Deleuze and Guattari’s criticism of Peirce holds good: ‘his distinctions are based on signifier-signified relations’.21 THE EVENT Nevertheless, Peirce’s system is to be favoured over Saussure’s because it does attempt to integrate the problem of the ground into the structure of the sign. With the signifier-signified relation the ground remains non-problematic because it is assumed to have been always already integrated into the sign structure, thereby preserving the entire system against the particular circumstances to which it pertains (parole).22 Where it becomes necessary to depart from Peirce (although we will return to him later) is with the ‘resolution’ of the problem of the ground, as constructed by Short, as telos. Rather, it is now necessary to turn to Deleuze in order to consider the true ground of the sign: the event. In The Logic of Sense Deleuze equates the event with the sense of a proposition,23 so the ground of a sign or proposition is also its sense. We saw earlier the difficulty described by Short when trying to locate the sense of Peirce’s symbol: not being ‘in’ the symbol itself, its sense becomes distributed across an infinite semiotic process. Deleuze picks up this problem in his own way by identifying three relations in the proposition: denotation, manifestation and signification.24 While these relations serve to connect the proposition to the world25 none of them are the locus of sense.26 Denotation cannot condition sense, because it would then make sense dependent upon the truth of what the



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proposition denotes. Similarly, manifestation cannot condition sense without making it dependent upon the expressive subject; however, this subject is itself dependent upon la langue27 for its very ability to express in the first place so cannot guarantee the sense of what it utters. Finally, la langue is equally unable to condition sense because, as a matter of conceptual signification, it is the condition of truth, and yet both true and false conceptualizations have sense, all of which can be summed up by saying that sense cannot be equated to truth, if this is taken as an evaluation of the appropriateness of each of the propositions’ three relations in any given case. For these reasons Deleuze describes sense as a fourth dimension of the proposition.28 This dimension is not a relation because it does not connect the proposition to a circumstance. Instead, sense is distributive, and this is why it is better to think of it as an event. In that case, what does the sense-event distribute? The simple answer is that sense distributes things and bodies (states of affairs), on one side, and words and propositions on the other. More than this, sense is responsible for differentiating the given, so that phenomena within it can be grasped as either bodies or words.29 This is why sense is the ground of the sign: sense distributes that which enables the sign to function as such, separating out symbols, icons and indices from that which they represent or stand for. What must now be clarified is what is meant by sense or the event. THE VERB The event is never actualized in a specific state of affairs, nor is it contained in propositions. Rather, it is what opens states of affairs and propositions up and, in so doing, constitutes them as such. This is apparent from Deleuze’s description of the event of battle: The battle hovers over its own field, being neutral in relation to all of its temporal actualizations, neutral and impassive in relation to the victor and the vanquished, the coward and brave; because of this, it is all the more terrible. Never present but always yet to come and already passed, the battle is graspable only by the will of anonymity which it itself inspires.30

The battle cannot be located in any specific act of warfare, nor in any particular utterance or order. It rather exists as supplemental to the entire set of acts and statements which properly ‘belong’ to the battle, and, yet, without this supplement, there would be no such set in the first place. Only the event provides the ground by which to determine what does (and does not) belong to the battle, enabling one to represent that a battle is occurring. However, by

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making such a representation, one is constituted beyond the subject that one is. This is because the battle can only be represented in the first instance: one does not participate in the event without also being its spectator, meaning that the battle in its entirety cannot be present to any one individual or group of individuals. Therefore, even if all participants are assembled and their testimony is recorded, a final account of the battle cannot be given and, for the same reason, there cannot be a complete experience of the battle while it rages. When one says ‘there is a battle’, one necessarily affirms more than one knows. One cannot know the event of battle, yet one affirms that it is taking (or has taken) place. In so affirming, one claims more for oneself than is capable of reasonable assessment or verification, which Deleuze, borrowing from Ferlinghetti, calls ‘the fourth person singular’.31 While we might say that this or that person fought, the participants of the event will forever remain unknown soldiers. The failure of verification is the failure of both good and common sense, and thus the failure of contradiction (‘bat is not cat’), in favour of the paradoxes of the sense-event.32 While it might be thought that departing from good and common sense would involve things and words becoming indistinguishable, this is, in fact, not the case. Good and common sense do depend upon fixed separations of words and things (i.e. signs), but these separations are first and foremost established by the sense-event: precisely, the event is the separation of words from things, causing Deleuze to write, ‘Events make language possible’.33 More specifically, the event makes language possible by giving it its proper ground in the form of the verb.34 From this ground good and common sense can be established, but first the verb must be activated. It should not be thought that there was an original, founding verb however. The verb is best thought of as that which becomes, in which case it is without beginning or end.35 This is why Deleuze prefers to say not that the tree is green but that it is greening.36 For this reason both nominalism and realism have their truth, but it is a truth dependent upon the power of the verb to enact the distinction between them, making it possible to distinguish things and words. Without this, the word and the thing could not be distinguished, and language would remain impossible. Furthermore, we would be without signs, without thought and thus without being. It is better to think less of ‘the’ event and more of an ‘eventing’, through which it becomes possible to denote, manifest and signify.37 THE IMMANENT Sense is a dynamical process which, rather than simply link a signifier to its signified (i.e. la langue), distributes words and things and, by so doing,



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establishes a whole network or series of signifiers and signifieds. Deleuze’s concept of language is not so much a structure as it is a series of singularities, each acting as the intense point of an event(ing) around which words and things are both jettisoned and brought into orbit.38 We can further our grasp on this by turning to Deleuze and Guattari’s ‘regimes of signs’. A regime of signs is described as being both less and more than language:39 less, because it is not sufficiently determined into a system or structure of correlated denotations, manifestations and significations, and more, because it includes within itself those material elements, such as bodies and things (tones, exclamations, gasps, stutterings, etc.), excluded from language (la langue). We see here how Deleuze and Guattari strike out from the distinction between words and things in The Logic of Sense, but they do so in order to consider what it is that constitutes a regime of signs as such: precisely, the problem of the ground. As they write: We must therefore arrive at something in the assemblage itself that is still more profound than these sides and can account for both of the forms in presupposition, forms of expression or regimes of signs (semiotic systems) and forms of content or regimes of bodies (physical systems). This is what we call the abstract machine . An abstract machine in itself is not physical or corporeal, any more than it is semiotic; it is diagrammatic (it knows nothing of the distinction between the artificial and the natural either).40

Being neither corporeal nor semiotic, the abstract machine is immanent: this is what is meant by the reference to ‘diagrammatic’. The abstract machine is the event which creates the condition of possibility for things and words, constitutive of the assemblage as such. Deleuze and Guattari continue: Defined diagrammatically in this way, an abstract machine is neither an infrastructure that is determining in the last instance nor a transcendental Idea that is determining in the supreme instance. Rather, it plays a piloting role. The diagrammatic or abstract machine does not function to represent, even something real, but rather constructs a real that is yet to come, a new type of reality. Thus when it constitutes points of creation or potentiality it does not stand outside history but is instead always ‘prior to’ history.41

Because the abstract machine operates prior to history, it is impossible for the sign to be grounded by a telos: indeed, the abstract machine is disruptive of any historical accretion and the statistical variants that would otherwise stabilize it. It is better to think of the abstract machine as throwing up zones of experimentation, with the potential for new relations to be made between bodies, between signs and between bodies and signs. This is not a free for all because the matters and functions of experimentation are specific singularities unique to their own particular modes of expression (all regimes are partial and limited).

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Additionally, such experimentation cannot be brought to an end by the ‘discovery’ of a supreme or final assemblage or regime, because the relative proposition would be one which would state its own sense (a possibility already discounted by Deleuze), and would fail to distinguish between words and things. LAW Thus, the ground of the sign is a ‘futuring’, where the event or abstract machine serves to distribute the sign and allocate to it its proper share of sense. However, the sign does not contain its sense, as this only ever exists in a ‘prior’ moment before the sign itself. This must not be confused with the past of the sign because this prior is its future: sense advances before the sign, dragging it forwards into a ‘to come’, via the form of the verb. Now we can begin to understand why Deleuze differentiates jurisprudence from the law and laws. In an interview with Antonio Negri, he says, What interests me isn’t the law or laws (the former being an empty notion, the latter uncritical notions), nor even law or rights, but jurisprudence. It’s jurisprudence, ultimately, that creates law, and we mustn’t go on leaving this to judges. Writers ought to read law reports rather than the Civil Code. . . . We don’t need an ethical committee of supposedly well-qualified wise men, but usergroups.42

The law is nothing but common sense, the basic or ground norm which everybody presumes to exist as the foundation of laws, these latter being the good sense involved in ‘recognizing’ the predetermined legal problem in any given situation and the means of resolving it. The law and laws produce an uncritical and unthinking mode of legalistic being that never departs from the vicious circle of interminable self-reference.43 On the other hand, jurisprudence is the mode of working through and acts as the event or abstract machine of the legal assemblage. It is jurisprudence that demands a thinking through, while the law and laws require mere application. For this reason, all cases are in fact ‘hard cases’ – a case, understood as something that must be argued through, cannot indicate a proper outcome at its beginning, by reference to law and the laws, but is, in fact, a singular problem that calls the current allocation of the law and laws into question. Any case is, in this sense, the failure of the law and laws to provide a proper, readymade outcome to the circumstance brought into being in, and by, that case. Obviously, once the case is resolved, the law and laws are redistributed to take account of that novel solution, and this is why it is correct to say that jurisprudence distributes the law and laws: jurisprudence reallocates the words and bodies of law, redrawing the line between them and thereby making possible legal propositions in general.



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It is now possible to identify some characteristics of the jurisprudenceabstract machine: (1)  Jurisprudence exists in the future. Because the solution to a case is not currently given by the law and laws, jurisprudence seeks to give (legal) sense to the case by working towards its solution. For this duration, while the case is unresolved, its elements cannot be given appropriate legal nouns and adjectives but are instead subject to processes of making sense. This process is not located in the present but rather in the present as it passes. What is therefore meant by ‘the future’ is not a present to come but the future as it presently exists, prior to history.44 (2)  Jurisprudence is immanent. The abstract machine does not work towards a transcendental end – if it did, it would remain within the circle of the law and laws. Rather, it ‘hovers’ over the legal field without being actualized in any particular element constitutive of that field. Therefore, jurisprudence cannot select from possible, predetermined statistical meanings but must rather put the sense of the legal field into variation.45 (3)  Jurisprudence is indifferent to truth and falsity. While a case is outstanding, there are at least two possible outcomes: either the defendant or the claimant is correct. While jurisprudence is the working through of these two positions, it is noteworthy that, even when one side fails to establish its argument against the other party, the resolution of the case will not disqualify that ‘losing’ argument as a legal argument. While in hindsight an argument is deemed incorrect, this does not mean that it lacked (or lacks) sense. (4)  Jurisprudence is the redistribution of the law and laws: this is what it means to put the legal field into variation. Once a case is resolved, the law and laws are realigned (they have a new sense) and re-stabilized. However, from the point of view of sense, this is not quite correct because, even if a new legal proposition follows from the case, this will not exhaust its sense. Precisely, the case will make possible a whole new set of propositions, without any one of those propositions (singularly or collectively) being able to give a full account of the sense which constitutes them.46 Because the meaning of a proposition can (only ever) be articulated in a subsequent proposition, it is very easy to think that we need not concern ourselves with the event of sense: the realm of meaning seems to be selfcontained, so long as one is able to reconcile oneself with the necessarily infinite regress of propositions. This is why Deleuze and Guattari write: ‘One can proceed as though the formalization of expression were autonomous and selfsufficient’.47 However, this does not answer the problem of how expression becomes possible in the first place (how are words separated from things, so

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that they might function as signs?), and, consequently, it de-emphasizes the state of affairs to which the proposition would otherwise pertain: the signifier takes dominance because ‘contents are abstracted’.48 In The Logic of Sense Deleuze wrote, ‘Sense is both the expressible or the expressed of the proposition, and the attribute of the state of affairs’.49 Contents are abstracted when the proposition is taken as the sole locus of sense, and states of affairs are downgraded into a shadowy ‘referent’. At such a point meaning is mistaken for sense, and the proper ground of the sign remains unthought. We can suggest that the proposition has a tendency towards inertia therefore: it is able to ‘think’ itself from within, without seemingly needing to consider the ground by which it is a sign or representation (i.e. thinkable as such). In other words, the tendency of the proposition is not towards sense but towards good and common sense (the good and the true). Consequently, this inertia is shared by the law and laws. THE DISCIPLINARIAN SIGN On at least three occasions50 Deleuze makes the case that Foucault never intended his analyses of sovereign and disciplinary regimes to be exhaustive of the problem of how the state exercises power: Foucault never believed and indeed said very precisely that disciplinary societies were not eternal. Moreover, he clearly thought that we were entering a new type of society. . . . we know already that we are in societies of another sort that should be called . . . societies of control.51

In order to grasp what Deleuze means by societies of control, it is useful to briefly consider how disciplinary societies function. Deleuze gives particular emphasis to the importance of confinement in Foucault’s analyses: Individuals are always going from one closed site to another, each with its own laws: first of all the family, then school (‘you’re not at home, you know’), then the factory, hospital from time to time, maybe prison, the model site of confinement. . . . Foucault has thoroughly analyzed the ideal behind sites of confinement, clearly seen in the factory: bring everything together, giving each thing its place, organizing time, setting up in this space-time a force of production greater than the sum of component forces.52

The inertia of the disciplinarian proposition is played out through confinement, this latter understood as the good and best division-allocation of words and things (good sense and common sense). Therefore, one cannot speak of a generalized ‘absolute’, ‘lack’ or ‘nothingness’, because each type of regime or



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society has its own, specific types of these phenomena, unique to them. This is why we are able to talk of a sign which is specific to the disciplinary regime. Although disciplinary regimes are themselves multifarious, these differences are dealt with (and deprived of the sense that constitutes them) by arranging them in the most appropriate mutual relations. Such arrangements are radial, moving out from a centre that determines their value on the basis of their relative space-times. Deleuze and Guattari refer to such societies as ‘despotic’.53 We can thus begin to see how the disciplinarian sign functions: (1) As an index, the disciplinarian sign functions as an indicator of the (absent) centre to which it is related (despotism); all disciplinarian indices thus denote despotic power. (2) As icons, such signs are ‘likenesses’ of despotic power. Most obviously these would include those signs which function to transform a state of affairs through their very utterance or passing – a decree by the sovereign; an act passed by the legislature; the verdict of a jury; the sentence of a judge; and so on; all disciplinarian icons thus manifest the one who utters them as an instrument of despotic power. (3) As symbols, disciplinarian signs refer to confined modes of conceptualization, thus giving a proper order and direction to thought through the delineation and expulsion of all that is unthinkable; all disciplinarian symbols thus signify confinement. While Deleuze is clear that no one of the three relations of the proposition (denotation, manifestation and signification) can be given priority over the others,54 I suggest that as far as disciplinary societies are concerned denotation dominates the other two relations. Deleuze’s argument that the three relations, in fact, presuppose each other is to demonstrate that none of them can be the locus of sense. However, with disciplinary societies, sense is precisely that which is (continuously) expelled by focusing all signs on to the despot.55 This focus is achieved first and foremost by establishing the index as the primary condition for all signs: nothing is represented that does not denote despotic power in some way, as the very condition of its functioning.56 CONTROL Control operates by opening up confined space-times in the name of ‘equality’, ‘humanity’ and ‘efficiency’. Overall, it constitutes a new regime of ‘reasonableness’ premised upon individual choice and profit maximization. Despite being dependent upon large quantities of cheap agricultural production and manufacture (both abroad and at home), control societies

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are dominated by the consumption of information, to the degree that such consumption is itself information for further consumption.57 Deleuze and Guattari describe these societies as being ‘axiomatic’.58 This means that, rather than operating through the absent centre of despotism (which has now become ‘inefficient’ and ‘inhumane’), control acts to arrange any given social phenomenon axiomatically by, simultaneously, insisting upon the specific character of that phenomenon (as a type of ‘identity group’ or technocratic expertise) and its generality within an overarching ‘humanity’ with rights of self-determination and free expression. Control is a regulatory system where prominence is given to policing59 and an ever more specific (and thus increased) legislative production by the executive, as opposed to the judge and the lawyer who, rather than be seen as the dispensers of justice and the protectors of rights (guaranteed by the despot in whose name they speak), have become obstacles to a justice now equated with public opinion. The aim of control is thus to regulate the public in the best interests of the public. However, we should not think of it as a type of utilitarianism. This becomes clearer if, rather than speak of the ‘public’, we use Foucault’s term ‘population’.60 Population replaces the idea of a public or a people with a generalized field of production (consumption), which is understood through statistical knowledges (potential capacity). Control aims to intervene in the population so as to make it as efficient a resource as possible. Unlike the confinements of the factory, the school and so on, control is a kind of open field where the individual is expected (in the name of efficiency and reasonableness) to be auto-regulating. To achieve this, he or she is no longer provided with confined models of success but instead with generalized axioms of performance (‘choice’, ‘happiness’, ‘investment’, etc.). In the interview with Negri, Deleuze illustrates what he means by societies of control: Prisons, schools, hospitals: the institutions are breaking down. But they’re breaking down because they’re fighting a losing battle. New kinds of punishment, education, health care are being stealthily introduced. Open hospitals and teams providing home care have been around for some time. One can envisage education becoming less and less a closed site differentiated from the workplace as another closed site, but both disappearing and giving way to frightful continual training, to continual monitoring of worker-schoolkids or bureaucrat-students.61

In ‘Postscript on Control Societies’ he goes on: Confinements are molds, different moldings, while controls are a modulation, like a self-transmuting molding continually changing from one moment to the next, or like a sieve whose mesh varies from one point to another.62



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With control one must keep paying, through re-skilling, re-training, re-educating, re-investing, re-choosing, re-staking, re-mortgaging and so on. One must modulate. The upshot of this is that one has no right to be an individual as such; rather, one has only the right to identities, meaning a function or point of connection between various sites of information. If disciplinary societies seek to expel the abstract machine, then control societies seek to integrate it (axiomize it) and make it profitable.63 As a consequence one must be a kind of ‘whatever’ person,64 prepared to choose and assume the most efficient and productive identities at any given moment: ‘A new form of slavery is invented, namely, being slave to oneself’.65 SIGNS OF CONTROL The inertia of propositions of control (which Deleuze calls ‘mots d’ordre’) is constituted as modulation. It is this which gives sense to control signs. In the case of both discipline and control, the ground of the sign is problematized, and it is this problematization that conditions the respective signs of those regimes as such. Hence, the ground of the disciplinarian sign is made up of confinements and differences, while the ground of the control sign is made up of modulations and differentiations. In either case, the respective regime of signs is forged in reaction to sense (or the abstract machine). Following Deleuze (and as mentioned earlier), if sense is taken as the future dimension of the present, then it requires, in any given moment, a working through of the problems created by the distribution of things and words, as so many experiments with their arrangements and possibilities. This is why we can speak of the future conditioning not only the present but also the past.66 With control (and this is the whole purpose of statistical knowledge), the future becomes subject to the past and the present through modes of forecast and selection. The emphasis here is very much upon the individual as auto-generative (through the ‘choices’ he or she makes) of his or her own rights and liabilities,67 these choices being actualized via quasi-contractual models68 that serve to (ideally) integrate into the present all of the possibilities of the future. As Alain Pottage appreciates, the primary mode of civic duty is now to be properly insured against the future.69 If discipline views change as a bad thing, control takes the opposite stance but on condition that any such change flows properly from a good and common sense defined as corporate efficiency; in other words, the abstract machine is taken by control to be generated from the assemblage of words and things, so that meaning and sense become indistinguishable (i.e. modulated). This

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is achieved, under control, by giving dominance to iconicity and the relation of manifestation. To clarify this we must return to Freadman’s work on Peirce. In analysing Peirce’s concept of the icon in his early work, Freadman highlights a kind of confusion between the sign as icon and its object, so that one is not clear if one is perceiving the thing itself or its iconic representation. The example she makes use of from Peirce’s work is that of the painted portrait. Of course, no one is going to mistake a picture for a person, but the point is that while the sign is necessarily distinguished from its object so as to be a sign, with iconicity one ‘forgets’ that it is the sign before one rather than the object: This is what Peirce goes on to elucidate: in order to use the [iconic] diagram, we have to forget that it is not the very thing. Then he tries to extend that argument to the painting: ‘So in contemplating a painting, there is a moment when we lose the consciousness that it is not the thing, the distinction of the real and the copy disappears, and it is for the moment a pure dream – not any particular existence, and yet not general. At that moment we are contemplating an icon’.70

Control operates as a dream: it maintains a fantastic ‘unity’, where things are neither particular nor general but modulated and where, through the icon, we are obliged to forget ‘the difference between reality and representation’.71 We can now consider the features of the control sign: (1)  As an icon, the control sign functions to make reality and representation indistinguishable. On this basis, it becomes possible for control to not only manipulate reality as if it were a sign (the two obvious examples being marketing and religion) but also insist upon any regime of signs as an inevitable and inescapable ‘reality’ or fact (e.g. the ‘war on terror’). Furthermore, the icon precludes any necessity for due process: because it is ‘the thing’, there is no need to appeal to any authority outside of one’s own grasp of reality.72 The icon is, in this context, invariably linked to a particular process of manifestation: the one who expresses it is expressing one’s own ‘whateverness’, or potential for modulated identity. Paradoxically, the icon manifests the subject as an icon of himself or herself to himself or herself (hence banal celebrity). (2)  As indices, such signs designate likely statistical outcomes. Control operates by indicating a future where all (if they have made the right choices) will be able to ‘live the dream’. This is how the abstract machine is brought into alignment with the current state of words and things, thus appearing to emanate from them. All control indices thus denote investment opportunities or, more broadly, the need for insurance.



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(3)  As symbols, control signs refer to modulated conceptualizations, where what is capable of being thought is dependent upon what it is appropriate and efficient to think in any given situation. Control signs thus signify integrative concepts, themselves conditioned by the necessary modulations or transformations (‘the beautiful soul’ or ‘humanity’).

CONTROL SIGNS AND LAW The law and laws are dependent upon jurisprudence for their existence because, without the actual working through of legal problems, the law and laws could not begin.73 The law must be thought; therefore, the question is: is it thought once and for all? Or must it be continuously rethought and reworked through? If one takes the event as the ground of the sign, then it follows that one answers affirmatively only to the second alternative. It is not possible to finally do away with jurisprudence without also doing away with the law and laws: it is jurisprudence which separates the legal sign from its object. What is the character of law under control? The space-times of legal deployment are certainly no longer confined but modulated across the entire field of social activity. This latter is only possible once the legal proposition ceases to function by reference to a despotic centre, which served as a measure or evaluation of its appropriateness. In its place the process of modulation serves to make any proposition, regardless of its sense, indistinguishable from its object: the inescapable reality of control, where meaning is a problem of efficiency and reasonableness – the coldest passions of all,74 where juridical thought gives way to criminological reflex. Thus, law becomes ever more specific under control and consequently disconnected from a central, validating reference that would be external to the circumstance in question. Instead, each law is legitimated by the situation to which it pertains, not so much as to discipline and punish but rather to adjust and penalize.75 Following Hardt and Negri, the laws of control are always ‘exceptional’: The function of exception here is very important. In order to take control of and dominate such a completely fluid situation, it is necessary to grant the intervening authority (1) the capacity to define, every time in an exceptional way, the demands of intervention; and (2) the capacity to set in motion the forces and instruments that in various ways can be applied to the diversity and the plurality of the arrangements in crisis. Here, therefore, is born, in the name of the exceptionality of the intervention, a form of right that is really a right of the police.76

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The icon is the crucial relation which enables the proposition to present itself as exceptional and legitimate, by presenting a regime of signs where one is unable to distinguish sign from reality or, which amounts to much the same thing, where one is excluded from the problem of the grounds of the sign. This exclusion is the basic mode of operation of control signs, where what one is supposed to think is already determined in advance: mots d’ordre. If Deleuze distinguishes between the law and laws, this is in recognition of the fact that no legal proposition is able to state its own sense: a gap must be opened up by sense between any specific legal proposition and its object, if it is to function as a sign. However, under control, this gap is destabilized through the attempted integration of sense into the proposition: it becomes necessary to constantly redefine the law in the light of changing and different circumstances, in a manner that cannot afford the potential doubt or argument that would result from sense’s indifference to truth.77 Control might operate through consensus, but it is a consensus that it determines in the light of the presentation of ‘realities’ that are transparent and obvious and where the most reasonable and efficient course of action is already (statistically) apparent: on this basis, in its very utterance or passing, the control sign grounds itself and presents itself as its own sense. It is no coincidence if, in the process, we, the ‘population’, are reduced to the status of dreamers. NOTES 1 Thanks to Anne Bottomley, Ronnie Lippens and Jamie Murray. 2 Throughout this chapter, ‘jurisprudence’ is used in its continental sense to indicate the working through of cases, rather than legal philosophy. 3 Hans Kelsen, General Theory of Law and State, A. Wedberg (trans.), (New York: Russell & Russell, 1945) at 120. 4 I use this term in the sense developed by Bergson: see Henri Bergson, Matter and Memory, N. M. Paul and W. S. Palmer (trans.), (New York: Zone Books, 1991) at 179. 5 My understanding of the term ‘globalization’ is derived from the work of Zygmunt Bauman. See Globalization: The Human Consequences (Cambridge: Polity, 2005) in particular. 6 It is no surprise that Slavoj Zizek has recently called for the proliferation of what he calls ‘Lacanian paranoia’. See Slavoj Zizek (ed.), Lacan: The Silent Partners (London and New York: Verso Books, 2006). 7 Charles S. Peirce, Peirce on Signs (Chapel Hill and London: University of North Carolina Press, 1991) at 30. 8 Anne Freadman, The Machinery of Talk: Charles Peirce and the Sign Hypothesis (Stanford, CA: Stanford University Press, 2004) at 12; emphasis in original.



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9 For a different account of the sign, see Hjelmslev, who develops a sign function that is less concerned with representation (that which stands for something else) than it is with the distribution of the sign’s ‘functives’ of content and expression: Louis Hjelmslev, Prolegomena to a Theory of Language, F. J. Whitfield (trans.), (Madison: University of Wisconsin Press, 1969) at 47–60. 10 As Deleuze makes clear, the meaning of a proposition is not contained within it but can only be stated by a further proposition: Gilles Deleuze, The Logic of Sense, Lester and C. Stivale (trans.), (New York: Columbia University Press, 1990) at 28. 11 T. L. Short, ‘The Development of Peirce’s Theory of Signs’, in C. Misak (ed.), The Cambridge Companion to Peirce (Cambridge: Cambridge University Press, 2004) at 217. 12 Freadman, Machinery of Talk, 13. 13 Ibid., 29. 14 Short, ‘The Development of Peirce’s Theory of Signs’, 221. 15 Ibid., 225. 16 Ibid., 230. 17 Ibid., 231. 18 Ibid., 230. 19 Ibid., 233. 20 Ibid. 21 Gilles Deleuze and Felix Guattari, A Thousand Plateaus: Capitalism and Schizophrenia, B. Massumi (trans.), (London: The Athlone Press, 1992) at 531, fn. 41. 22 That the problem of the ground is already excluded from Saussure’s system is evident from Roy Harris’s explication: ‘What fixes the individual signs is their reciprocal interdependence in a system, which in turn is fixed simply by the totality of internal relations between its constituent signs. That explains simultaneously why altering just one set of relations disturbs the whole system, and also why, in spite of the arbitrary connexion between any one signifiant and any one signifié, it is not easy to break that connexion. Altering just one sign encounters the passive resistance of the entire structure’ (Roy Harris, Reading Saussure [London: Duckworth, 1987] at 220). 23 Deleuze, Logic of Sense, 22. 24 Ibid., 12–22. 25 Denotation relates the proposition to a state of affairs; manifestation relates it to the person who speaks or expresses it; and signification relates it to universal or general concepts, for which it then serves as a premise or conclusion. 26 Deleuze, Logic of Sense, 17–19. 27 Following Lacan, the subject is a signifier. 28 Deleuze, Logic of Sense, 19. 29 Ibid., at 22. 30 Ibid., 100. 31 Ibid., 103. 32 Ibid., 74–81. 33 Ibid., 181. 34 Ibid., 182.

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35 Deleuze refers to this as the ‘Aion’, ibid., 162–168. 36 Ibid., 21. 37 Ibid., 182–183. 38 Ontologically (and as born out by the prominence of the verb), Deleuze’s theory of the event cannot be disassociated from the concept of duration as this is developed in Difference and Repetition, P. Patton (trans.), (New York: Columbia of University Press, 1994). There, the event corresponds to Eros, or pure and formal repetition. See chapter 2 in particular. 39 Deleuze and Guattari, A Thousand Plateaus, 140. 40 Ibid., 140–141; emphasis in original. 41 Ibid., 142. 42 Gilles Deleuze, Negotiations, M. Joughin (trans.), (New York: Columbia University Press, 1995) at 169–170. 43 The law is the signified of the laws/signifiers. 44 Deleuze, Difference and Repetition, 85–91. 45 For an interesting overview of the non-statistical affirmation of chance, drawing on both Deleuze and Nietzsche, see Ian Hacking, The Taming of Chance (Cambridge: Cambridge University Press, 2004) at 147–149. 46 This also highlights why jurisprudence is immanent to the law and the laws: the latter are entirely constructed from the abstract machines which call them into question. 47 Deleuze and Guattari, A Thousand Plateaus, 111. 48 Ibid., 112. 49 Deleuze, Logic of Sense, 22; emphasis in original. 50 In the interview with Negri entitled ‘Control and Becoming’; a short article called ‘Postscript on Control Societies’, both in Deleuze, Negotiations; and another short piece entitled ‘Having an Idea in Cinema (On the Cinema of Straub-Huillet)’, in Eleanor Kaufman and Kevin Jon Heller (eds.), Deleuze and Guattari: New Mappings in Politics, Philosophy, and Culture (Minneapolis: University of Minnesota Press, 1998). 51 Gilles Deleuze, ‘Having an Idea in Cinema (On the Cinema of Straub-Huillet)’, in Eleanor Kaufman and Kevin Jon Heller (eds.) Deleuze and Guatarri: New Mappings in Politics, Philosophy, and Culture (Minneapolis: University of Minessota Press, 17. 52 Deleuze, Negotiations, 177. 53 See Gilles Deleuze and Felix Guattari, Anti-Oedipus: Capitalism and Schizophrenia, R. Hurley, M. Seem and H. R. Lane (trans.), (London: The Athlone Press, 1984) at 192 ff.; and chapter 5 of A Thousand Plateaus, by Deleuze and Guattari. There is a loose correspondence between Deleuze and Guattari’s work in this area and Foucault’s; however, despotism can include both feudal and industrial arrangements. 54 Deleuze, Logic of Sense, 15–18. 55 The despot is not necessarily a person, and if it is, that person is more like an icon than anything else. As Foucault’s work on the Panopticon shows, it is better to think of a despotic power which radiates in and through confined space-times; see, for example, Michel Foucault, Power/Knowledge, C. Gordon et al. (trans.), (Harlow: Longman, 1980) at 146–165.



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56 Of course, the other two relations remain crucial: icons as the mode of effecting transformations of states of affairs, thus manifesting the expressing subject as ‘s/ he who is authorised to speak’; and symbols as setting out what is capable of being thought, thus signifying the proper limits of any given space-time. 57 See the description of immaterial labour given by Michael Hardt and Antonio Negri in Empire (Cambridge and London: Harvard University Press, 2000) at 290. While providing an extremely useful analysis, Hardt and Negri’s concept of immaterial labour is not unproblematic: see the convincing critique by Nick Dyer-Witheford, ‘Cyber-Negri: General Intellect and Immaterial Labor’, in Timothy S. Murphy and Abdul-Karim Mustapha (eds.), The Philosophy of Antonio Negri: Resistance in Practice (London and Ann Arbor, MI: Pluto Press, 2005), 136–162. 58 Deleuze and Guattari, Anti-Oedipus, 247–253. 59 Policing should not be grasped as merely a dimension of state power. The dominance of police functions in control societies is dependent on their becoming spread across the entire social field: not only are police functions privatized (security guards), and mutated (community support officers); control also demands a self-policing, premised not on any sense of justice or responsibility but liability: that is, what one can get away with. See Anne Bottomley and Nathan Moore, ‘From Walls to Membranes: Fortress Polis and the Governance of Urban Public Space in 21st Century Britain’, Law & Critique, vol. 18(2), 2007: 171–206. 60 See Michel Foucault, Power: Essential Works of Foucault 1954–1984, R. Hurley et al. (trans.), (London: Penguin Books, 2002) at 201–222. 61 Deleuze, Negotiations, 174–175. 62 Ibid., 179; emphasis in original. 63 See Deleuze and Guattari’s analysis of immanent capital in chapter 3 of AntiOedipus, by Deleuze and Guattari. 64 See Brian Massumi’s excellent Foreword in Deleuze and Guattari, A Thousand Plateaus: Capitalism and Schizophrenia, B. Massumi (trans.), (London: The Athlone Press, 1992), ix–xv. 65 Deleuze and Guattari, A Thousand Plateaus, 130. 66 Deleuze, Difference and Repetition, at 115. 67 I use this term in the sense given to it by Kristeva, who distinguishes ‘liability’ from ‘responsibility’. See Julia Kristeva, The Sense and Non-Sense of Revolt: The Powers and Limits of Psychoanalysis, J. Herman (trans.), (New York: Columbia University Press: 2000) at 5. 68 See Anne Bottomley and Nathan Moore, ‘You Will Never Finish Paying’: Contract and Regulation, Globalisation and Control, New York Review of Law and Social Change, 31(3), 2007. 69 Alain Pottage, ‘Our Original Inheritance’, in A. Pottage and M. Mundy (eds.), Law, Anthropology, and the Constitution of the Social: Making Persons and Things (Cambridge: Cambridge University Press, 2004), 249–285. 70 Freadman, Machinery of Talk, 26. 71 Ibid. 72 I shall return to this later. 73 My understanding of law obviously precludes the possibility of natural law. 74 Deleuze and Guattari, A Thousand Plateaus, 130.

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75 A clear example of this in the United Kingdom is the transformations occurring as a result of government initiatives to combat both antisocial behaviour and the threat of terrorism. Following Bauman, we can say that these are simply two sides of the same (police) coin so far as (globalized) control is concerned. See Bottomley and Moore, ‘You Will Never Finish Paying’. 76 Hardt and Negri, Empire, 16–17; emphasis in original. 77 To adopt Kelsen’s terminology, under control the validity and efficacy of the law are no longer two distinct concerns but, rather, the law is valid only to the extent that it is efficacious.

Chapter 8

Iconic Norms A Theory of the Normative Nature of Images Emanuele Coccia

1 We are used to considering norms as exclusively or primarily verbal tokens: laws and norms are supposed to be efficacious words, which are able to shape human life through the mere fact of their very existence and enunciation. This belief has an ancient history – almost as ancient as the Western practices of law.1 But words and verbal language are not the only possible medium of law and lawmaking. The objective of this chapter is to, in fact, show that images, as well as words, can and do exercise a normative power, which is the performative effect of their existence, in order to define what can be called an iconic normativity.2 Speaking of an iconic normativity means, first, to understand normativity in its broad historical sense, as a set of norms whose object is human life in its totality, and not just a discrete action or the interaction between subjects (i.e. litigations).3 Advice, recommendations and warnings were considered as ‘legal’ as rules, orders and obligations. Persuasion belonged to the task of the law just as much as execution did.4 As it will be seen, the opposition between the obligatory (praeceptum) and the advisory (consilium) is internal to Western law, and it does not coincide with the opposition between the juridical and the non-juridical. Second, this means also, and above all, to recognize that in modern globalized societies it is images, more so than words, which are responsible for the shaping of social customs and practices.5 Since the invention of cinema, and photojournalism up to the predominance of iconic communication in social networks such as Instagram or Snapchat, contemporary societies seem to express and formulate in an iconic way their deepest and most effective social rules. Conversely, images, which in the past had mainly an aesthetic, decorative 133

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or – more rarely – a cognitive function,6 are becoming today more and more the organs of a new form of collective normativity and individual psychagogy.7 This phenomenon is not, however, entirely new: there have been cultures and traditions that made use of images in order to formulate and transmit not only knowledge but ‘all the forms of normative knowledge as morality, religion and politics’ (Severi 2007, 325),8 while there have also been, within Western culture, iconic expressions of moral and juridical sciences (e.g. emblems).9 My first claim is that advertising was the most important and most powerful laboratory for the production of socially relevant images and therefore of iconic normativity in modern societies: thanks to advertising a large set of social rules and habits that shaped Western societies were translated into an iconic form.10 The reason is simple: advertising images are not only the most copious and widespread set of images available to us but also the most commonly seen and consumed images, seen, in fact, to a much greater extent than any other artistic or cultural images. Advertising images are, further, the most ‘social’ of images: they have to be recognizable by everyone, and they have to embody in an iconic form a given culture’s most commonly held categories. Such images must convey the desires, dreams, needs and ambitions shared by the greatest part of civil society; their task has been to invent and formulate a new iconic language and a new grammar for mass iconic communication. In this sense, advertising has not only produced an important portion of the iconic culture of Western society but also recognized something: our culture can only be – and has to be – conveyed through images. Advertising has, in addition, changed the status of images themselves. With advertising, for the first time, we have seen the conscious mass production of images, whose main function is no longer the mere communication of information, or the production of feelings of pleasure or displeasure, but the realization of a norm.11 That is the reason why advertising images cannot be recognized and separated from other types of images or iconic structures on the basis of their content (i.e. an exclusive object), nor of some unique form (i.e. a specialized language) or, indeed, a peculiar message (i.e. concrete suggestions of selling things or shopping). On the contrary, any image can become an ad: this is strikingly demonstrated by Oliviero Toscani, who, borrowing from Andy Warhol, began transforming pictures of photojournalism into advertising images.12 Furthermore, the growth of advertising in Western society has produced an impressive widening of the number and species of represented objects: everything, every object in common use, including rare or embarrassing ones (from automobiles to sanitary napkins, from socks to laxative pills), is now represented and exists under the form of an image. Through advertising, everything becomes visible. Finally, the ironic nature of advertising communication allows one to express any kind of message, including anticapitalist ones.13 An image becomes an advertising image simply by virtue of its performing a normative task and not because of some material or formal



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features. But this normative function, by the same measure, follows patterns that are immediately recognizable. In sum, advertising images are not a special class of images with a special content but just images in their normative power, that is, images inasmuch as they can exercise a normative function. To express it more provocatively, it is to advertising that we should look to understand what norms are and how they function today. Thus, in order to explain advertising, we must understand the contemporary conditions under which a social norm can be formulated as an image. 2 ‘Advertising . . . has a history as old as that of the human race. Just as soon as there were enough people in the world, some sort of formal announcement had to be made’ (Calkins 1915, 1–2). Far from being a modern and recent pathological excrescence of public space, or the symptom of social pathologies in late capitalism, advertising is the contemporary form assumed by a discourse that has never been absent from social life. The spaces which are today home to a discourse that incessantly discusses and displays the things that, simply put, we call commodities – celebrating, glorifying and exalting the most diverse objects of daily use: shampoos, telephones, perfumes, records; bras, shoes, chocolate, meat – were used in ancient times to honour and sanctify the gods, the city and the dead – that is, in epigraphic and monumental iconography.14 And exactly as in ancient epigraphic literature, advertising has a moral purpose: it has to shape public morality and civic selfconsciousness, to form the ethos of the polis, to name and glorify its values. What have changed are the subjects of this monumental literature and iconography. Where ancient cities formerly defined their ideals of perfection, identified the sources of virtue and tried to imagine an ultimate form of happiness through relations to gods, heroes and history, our contemporary cities today try to formulate and resolve ethical quandaries through their relationships to commodities. If epigraphic iconography was a reflexive iconic space wherein a society spoke of itself and its values and represented itself in an idealized or divinized form, in advertising the representation of the supreme moral values of the city coincides with the representation of commodities. Things are represented as the cause of individual and common wealth and happiness: they are personifications of the good and of that which is worthy of value. Put in an apparently paradoxical form, advertising is the iconographic identification of the good with goods. Advertising reveals the good as existing in things, in all the things we can use, produce, imagine, buy and consume. Conversely, advertising images reflect and represent human happiness and perfection as always embodied in a commodity, or as something that the individual himself or herself can embody through relating to a particular object.

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The centrality of things in modern cities (and culture) is not a consequence of advertising. More than a century ago Georg Simmel noticed that a modern metropolis is defined by the imbalance between things and people:15 a modern city is the space where the number of things is miles ahead of the number of individuals. Politics, in this sense, becomes in modernity more and more a matter of things, rather than of human beings. Things, inasmuch as they can define and influence the life of the polis – the entire society and not only that of one single person – are what we call commodities: it is only through their quick circulation that things acquire a political status and a capacity of influencing a community. Paradoxical though as it may seem at first sight, to be a commodity means that a thing possesses a semi-public character. If a city is a collection of things, the science of the city – politics – is also the science of things in the city. Better put, it is an iconographic science, the discourse of things and their public life. We could also reverse this argument by stating that among the categories of our contemporary social ontology, commodity represents the most general idea available today to indicate objectivity: every thing is a commodity, and ‘commodity’ is the most general name for the things we have. What the German philosophical tradition, since G. W. F. Hegel, Wilhelm Dilthey and Simmel, called ‘the objective spirit’ embodies itself first of all in the system of commodities and as a system of commodities. Advertising is, then, the language of the objective spirit of our culture. Still, such an iconographic identification between the Good (the principle of morality) and the goods is culturally new (this is also so from an iconographical point of view: advertising can be seen in thematic opposition to the dürerian theme of melancholia). Classical moral doctrines in the West, for all of their diversity, always took part in a common presupposition: the good itself can never exist as a thing (in the Platonic formulation it exists only epekeina tēs ousias, beyond things). With advertising images, in contrast, it is as though humans were organisms ethically inseparable from the very things they produce, exchange and desire. In the advertising imaginary, a human being is a moral cyborg, whose existence attains ethical perfection only via the universe of things. The necessary alienation, which commodities cause and express, is moral, rather than economic or social, but it is crucially a positive one: we need our own products not only to survive biologically, or to improve the physical conditions of our existence, but also in order to live morally. Furthermore, this iconographic identification allows us to define differently the concept of morality. Since the works of Langdon Winner, Bruno Latour and Peter-Paul Verbeeck,16 philosophy has started to recognize that ‘a substantial part of our everyday morality rested upon technological apparatuses’ (what Latour called the missing mass of morality) and has tried to define the moral agency of things as a mediated morality. Advertising seems to have recognized the capacity of things to define morality but in a much more radical way: things, objects, are not just mediators of a sphere which has



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its own roots in human life. On the contrary, morality seems to be something to which human beings have access only through objects. Only thanks to things do we become moral beings. 3 From a strictly material point of view, advertising is the iconography of modern trade: a boundless array of images, which are supposed to publicly display commodities as commodities, that is, as things we should desire, possess and therefore buy. It is a historically unprecedented process by which the economic life of our century becomes visualized. And yet what these images allow us to see seems to be a depiction of our daily life, in all its forms, through all the objects – the tiniest as well as the biggest ones, the most meaningless as well as the most magnificent ones. In this, nothing strictly economic appears; none of the multiple techniques which make trade and commerce possible are displayed. This is not because of a deliberate and skilled sort of hiding: in contrast, advertising is the full visual manifestation of the deepest economical mysteries. How is this transfiguration possible? Why do the images that are supposed to render visible the most invisible among the human activities (the ones operated by the ‘invisible hand’) turn into the most detailed atlas of human life, of its desires and dreams, of its attitudes and of its most ordinary environments? Why is advertising the technique of the iconographic transfiguration of trade into the most precise and comprehensive iconographical catalogue of lifestyles and real or imagined forms of life we have ever had? It would be, however, a mistake to consider this evolution as the pure result of a handful of bright and gifted copywriters. Their work expresses and presupposes a much deeper and wider revolution in the way contemporary societies conceive of markets, commodities and a series of social practices. In order to understand this threefold revolution, one has to turn at the evolution of social thought, in the United States and Europe, during the 1950s. The first revolution was the broadening of the concept of marketing, to use the title of a path-breaking article published in January 1969 by two major figures of marketing thought from the previous century, Philip Kotler and Sidney J. Levy.17 Marketing was redefined as the most general and universal social science, the science of organizations as such: ‘Every organization must perform a purchasing function’, and ‘every organization performs marketinglike activities whether or not they are recognized as such’. This new and universal social science is also a sort of general anthropology of contemporary society. ‘If anthropology is the study of mankind’, wrote Levy, ‘then everything we do and all ways of study are probably parts of anthropology. . . . In studying marketing we are already doing anthropology’ (Levy 1999, 242).18 ‘We are practicing cultural anthropology more than anything else’, noticed

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in the same period another guru of marketing and the father of motivational advertising, Ernest Dichter (1964). Advertising, he wrote, is ‘an encyclopaedia of the world of things’, ‘a sort of contemporary cultural anthropology of modern man’. ‘His customs, motivations, desires and hopes’, he continues, are often not too far removed from the rituals and fetishes of the New Guineans. He buys his fetishes in the department store, and the New Guineans carve theirs out of the skulls of their enemies. In modern communication we have to penetrate to the deeper meaning which products, service, and objects that surround us have for the individual. Only by this deep insight can we truly be creative and communicate effectively. We have to think and wonder, as the anthropologist does who studies a strange culture. (Dichter 1964, V–VI)19

Advertising is what anthropology, decades later, will call the analysis of material culture, a sort of hidden archaeology of contemporary society: When we look back and try to recognize the pattern of a past culture from the traces of its passage – its artefacts, its movements, its skeletons, its refuse, and its environment, we call it archaeology. Modern marketing study may be thought of as the archaeology of contemporary life, learning about the meaning of current objects while the users are available to tell us about them. (Ibid.)

Exactly like archaeology, advertising has to presuppose that culture is and has to be a material culture and, conversely, cloths and design objects are the principal form of cultural expression in a given society. This broadened concept of marketing was not a hazardous discovery. The most important marketing scholars studied with anthropologists like Alfred Kroeber, George Boas, Bronislaw Malinowski and A. Radcliffe-Brown,20 and, having not found a position at the university, they tried to apply what they learned to the society in which they lived in. It is worth mentioning that the celebrated essay by Mary Douglas and Baron Isherwood ‘The World of Goods’, where the authors claim that consumption ‘is the very arena in which culture is fought over and licked into shape’ and that commodities are primarily needed ‘not for subsistence plus competitive display’ but ‘for making visible and stable the categories of culture’ (Isherwood and Douglas 1979, 37 and 39), came out only a decade later. The second revolution was the transfiguration of things and commodities exchanged within the market into symbolic values, embodiments and material projections of sentiments, ‘attitudes, beliefs, opinions, hopes, fears, prejudices, needs, desires, and aspirations’ (Mitchell 1983, 25). With the expansion of the middle class, trade is no more considered as the satisfaction of biological need but as the realization of the natural ‘need of symbolization’.21 Commodities are thought as the first and most immediate embodiment



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of cultural values in a society. As Sidney Levy wrote in 1959 (anticipating once more something that anthropology and French critical thought would discover only later), ‘modern goods are recognized as essentially psychological things, which are symbolic of personal attributes and goals and of social patterns and strivings’ (Levy 1999, 206). Buying and purchasing commodities are, then, symbolic practices: ‘All commercial objects have a symbolic character, and making a purchase involves an assessment – implicit or explicit – of this symbolism, to decide whether or not it fits. Energy (and money) will be given when the symbols are appropriate ones and denied or given parsimoniously when they are not’ (ibid.). Commodities are ‘symbols for sale’, material embodiments of negotiable values. If the objects themselves are symbols, advertising is not a myth but a sort of hermeneutics of this immanent social symbolism: ‘We want to know how we can read into, understand, and interpret the human quality that exists in a piece of furniture’ (Dichter 1960, 93). Advertising is the social and public science of this natural symbolism of things. Furthermore, if the market is mainly a symbolic space and the traded objects within it are symbols, the persons who are acting within markets also have a symbolic nature and the act of purchasing itself becomes a spiritual technique of symbolic self-fashioning: ‘Buying tangible goods . . . could very well be interpreted as one form of translating aspects of your personality into tangible forms’ (ibid., 110). ‘An individual’s lifestyle is a large complex symbol in motion. It is composed of sub-symbols, it utilizes a characteristic pattern of life space, and it acts systematically to process objects and events in accordance with these values’ (Levy 1999, 218). And ‘marketers do not just sell isolated items that can be interpreted as symbols: rather they sell pieces of a larger symbol – the consumer’s lifestyle. Marketing is then a process of providing customers with parts of a potential mosaic from which they, as artists of their own lifestyles can pick and choose to develop the composition that for the time may seem the best’ (ibid., 224). Introduced in sociology by Simmel22 and Max Weber23 and in psychology by Alfred Adler,24 the notion of lifestyle was the key element of the revolution in advertising and marketing but also in the social sciences, in general, from the late 1950s. The notion was first used in demographic research in order to overcome traditional instruments of social segmentation such as income, class belonging or status-seeking attitudes:25 the development of the abundant society obliged social scientists to describe social stratification in different terms than as a composition of classes. The differences between social groups are supposed to be caused less by what each of them owned than by the use of their own resources.26 In addition, traditional demographic traits such as age, sex, education levels and income are no longer able to express the way groups differentiate within society; on the contrary, non-demographic traits such as

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values, tastes and preferences are more likely to define the social identity of individuals than their demographic traits are. The main idea, to be clear, is that social segmentation is no more a purely economic element: it is no more the immediate consequence of how much you earn (because of the fact that the real gap between different groups was decreasing) but rather what you decide to do with what you earn. The most accomplished form of the analysis of society through lifestyle segmentation was offered by the psychographic school. In 1983, Arnold Mitchell, a member of the Stanford Research Institute and the inventor of a peculiar psychographic model known by the acronym VALS (values, attitudes and lifestyles; created in 1978), published a book summarizing the work of his life and launching a new era in marketing: Nine American Lifestyles: Who We Are and Where We’re Going. The book, based on the research of David Riesman and the anthropological doctrines of Abraham Maslow,27 coined a new psychographic categorization for North American society. The core idea of the book was that the consumer choices are homogeneous and that the totality of consumption expresses a lifestyle. As Mitchell wrote, values represent the entire constellation of a person’s attitudes, beliefs, opinions, hopes, fears, prejudices, needs, desires, and aspirations, that, taken together, govern how one behaves. One’s interior set of values – numerous, complex, overlapping, and contradictory though they are – finds holistic expression in a lifestyle. This book analyses and systematizes the values and lives of Americans today in such a way as to yield insights into why people believe and act as they do.28

The nine anthropological types (‘survivors, sustainers, belongers, emulators, achievers, I-am-I, experiential, societally conscious and integrated’) can perfectly be described by the number and type of commodities with which each lifestyle likes to surround itself. Not only is the basic moral quality of life expressed in the things used, but its morality; its Sittlichkeit (moral substance) is made possible by these things; it exists through these commodities. But above all, in all objects, in all commodities, is embodied one single recognizable lifestyle. The notion of lifestyle allows expressing at least two new aspects: first, the idea that the psychological and social traits of someone’s identity can be expressed in the form of the objects that he or she is using. This objectified personal identity allows, at the same time, the provision of objectivity and publicity to what otherwise is supposed to be uncommunicable, but also the creation of a distance, as Simmel wrote, in which the excess of subjectivism finds a counterweight. Lifestyle is the space where the quality of an object can embody the feelings and the attitudes of a subject and, conversely, a



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space where the reciprocal translation (or translatability) between the objective and the subjective sphere can merge. Second, it expresses the idea that the relationship between the subject and his or her objectified identity has to be freely chosen by the subject. As Ernst Gombrich wrote, ‘Style is any distinctive and therefore recognizable, way in which an act is performed or an artifact made or ought to be performed and made’, but ‘there can be no question of style unless the speaker or writer has the possibility of choosing between alternative forms of expressions’ (1968, 352–353).29 If life has a style, it is because the set of customs which it embodies have been freely and arbitrarily chosen, and they could be chosen anew. The main idea is that the form of life is the result of the free choice of the individual, based exclusively on individual taste and not on social constraints.30 That is the reason why ‘consumption is expressive’.31 The reality of lifestyles-society where every social feature tends or is supposed to be chosen is actually a social space where there could not be cultures anymore but only subcultures:32 the belonging to a specific culture does not occur because of universal, transcendental and ontological constraints but because of consciously chosen, local and ephemeral traits. This is, in a way, a society without classes, even though many economic differences remain. Subcultures have replaced culture since, through lifestyle, taste, in its contingency and variability, is the ultimate cause and the place of the constitution of value (economic, moral and aesthetic) and identity. Further, building a world defined by lifestyle advertising transforms the market itself into a huge ‘organ of collective taste’, through which a community selects and builds collectively its own cultural and cosmic identity and takes collective decisions on its present and past.33 If taste is more important than rationality (or, better, the traditional image of rationality), it is because, unlike traditional norms, which aim at reproducing continuity, advertising images must produce change: they are not limited to the actual behaviour of consumers; they must suggest a change in behaviour; and they must also offer reasons for that change. Advertising is the reversal of customary normativity (mos, in Latin, means custom and tradition): if in ancient Roman law the task of the normative system was the stability of the ancestors’ customs, advertising has to produce, by contrast, the mobilization of all customs, the customization of all customs. The normativity embodied in advertising produces a constant revolution in customs and habits and coincides with a mos novissimorum, a sort of paradoxical tradition, which has to be constantly renewed and in which only the drive to newness is stable. It is, in this sense, the exact opposite of censorship in ancient Rome: instead of ‘punishing novel misdeeds and bringing back the old customs’ (castigare . . . nova flagitia et priscos revocare mores, Liv. 39.41.4), it pursues the goal of punishing the old misdeed and triggering new customs (priscos castigare

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mores et novos advocare habitos); instead of codifying traditional modes of behaviour, it must glorify newness. That is also the reason for the predominance of advice over commandment in advertising: advertising has to suggest a transformation, and with this, psychology is turned into a psychagogy. Thanks to advertising our relationship to things, objects and, more generally, material culture is integrally defined by fashion: a mobile, ironic, uncertain relationship, a rhythm of change that obliges everyone to revise or discard the old for new elements and forms, forms that have to be chosen among a variety of models without any appeal to objectivity. Advertising, as the specific normative system in which custom can exist only in the form of change, is the transcendental condition of the possibility of fashion. 4 Advertising translates the notion of lifestyle into an objective, iconic and visual space, where the unity and the universality of a modus vivendi can be formulated and shared. Conversely, images become through advertising a space where a universal normative order of life can be formulated in an aesthetic way. Thanks to advertising economy becomes an iconic and visual relationship of a singular human being with itself and with the world. But how can a set of symbols, which very often are not even expressing an explicit rule, a commandment or an imperative order, exercise a ruling force? In other words, how can a form of life be the object of law? It would be a mistake to explain the causality and normativity of advertising images only through their exemplarity.34 In order to understand the normativity of advertising images, one should recall that the advertising process is not just one form of symbolizing among others but a symbolism in the second degree. Every advertising image is, at the same time, a symbol, but it is also a kind of interpretation of the symbolism of the objects themselves and a symbolizing of their symbolism. It is at the same time a myth and a mythology, the storytelling work of capitalism but also its hermeneutics, a meta-symbolic ‘tableau’ of the most common and shared values of a society. In this sense, the normative power of advertising consists in its capacity to vary the symbolic values of a given society. Thus, the normativity of advertising consists in its meta-symbolism: it is the capacity to change the specific symbolism attached to an object. Advertising can change (and must change), for instance, the gender value of an object (the most famous cases are those of cigarettes and the Italian motorcycle Vespa), or the set of values associated with a highly symbolic item of clothing like a blazer or underwear. In this manner, one could say that through advertising the market is transformed into a form of meta-symbolic reflexivity, which in contemporary civilization has a similar and at the same time inverse function to that which, according



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to Lévi-Straussian anthropology, totemism performs in Amerindian cultures. French social thought used to suppose that ‘social life is possible only on the basis of a broad symbolism’ (Durkheim 1912, 331): symbolism ‘expresses the unity of society in a material form, and makes it more tangible’ (ibid., 329). Symbols constitute the self-consciousness of a given society. Advertising confirms and contradicts the symbolic foundation of society. First, unlike what is commonly assumed, in advertising symbolism becomes an ironic means of expressing individual psychology through the use of a shared and common language. Second, it inverses the inherent logic of totemism: Totemism postulates a logical equivalence between a society of natural species and a world of social groups so that natural and social groupings are homologous . . . and the selection of a grouping in one order involves the adoption of the corresponding grouping in the other, at least as a predominant form. (Lévi Strauss 1966, 104)

Advertising replaces natural groupings with artificial ones and reverses the sense of totemistic causality. Advertising, finally, is not just a playful distortion of the collective symbolism, as it is the case of rituals during a carnival: it is a symbolic work on this symbolic activity itself. Images become the space where symbolic relationships are deconstructed and reconstructed in a normative and, at the same time, ironic way. Advertising (and the market) is the plane of the ironic construction and destruction of social categories – a sort of aesthetic de generatione et corruptione (on the generation and the corruption) of a society’s symbolic traditions. And there is something sharply ironic in the fact that exactly at the moment when Western culture learned, through anthropology, to classify other cultures on the basis of their symbolism, it developed an inner meta-symbolic space whereby it could deconstruct, in a ludic way, its own forms of symbolism. Economy becomes the constant invention of new symbolic configurations, the ironic factory of moral symbols that things must be able to embody, as if things were the real actors on the social stage. In advertising, the economy coincides with its mutable iconic normativity. In this sense, then, advertising contradicts the most basic presuppositions of sociology and anthropology (at least in the Durkheimian tradition): social life is possible not on the basis of a fixed symbolic structure but on the basis of the possibility – embodied in advertising – to destroy continuously, to deconstruct and rearrange old symbolisms and to introduce elements of novelty in an ironic and contingent way. Only because symbolism is not organized in the form of a Kantian set of a priori categories, but as a space of a playful and capricious deconstruction of the relationships between individual, natural and artificial elements of the world, is society possible. Or, to put it in plainer terms, it is fashion and not structure that makes human society a possible entity, as something that can exist only in the form of a style, of clothing that we can wear and dismiss without being governed by necessity.

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NOTES 1 Since the first and most ancient law book in Western culture (the Bible) condemned idolatry – that is, norms in the form of iconic tokens; see Coccia (2015). 2 In his recent ‘phenomenology’ and taxonomy of the different kinds of the power of images, Bredekamp does not write explicitly of a normative power, even though he refers to the classic theory of speech acts; see Bredekamp (2010). 3 On the genealogy of life and its form as the object of normativity, see Coccia (2006, 2010). 4 The classical locus is Dig. 17.1.2.6 (Gaius 2 cott.). The Christian law tradition made out of the consilium the specific normativity for the elite: advertising will do exactly the same. For a history of this form of normativity in the Christian juridical tradition, see Hruschka (1999). 5 See Apkon (2013). 6 See Stafford (1994). 7 On the use of images in law, see the path-breaking study of Mnookin (1998). 8 See, further, Severi (2007). 9 See the wonderful book by Goodrich (2014). 10 On the superiority of images over words in advertising, see, for instance, French (1909, 50). 11 This is the reason why semiotics never understood the nature of advertising. On the semiotic hermeneutics of advertising, among a myriad of other examples, see Barthes (1972). 12 See Coccia (2014). 13 As exemplified in the collaboration between Abercrombie and Fitch and the Marxist Slovenian philosopher Slavoj Zizek in 2003; see http://www.critical-theory. com/that-time-zizek-wrote-for-abercrombie-fitch/. 14 See Venturi, Brown and Izenour (1977). 15 See Simmel (1900). 16 See Winner (1980), Verbeek (2011) and Latour (1992). 17 See Kotler and Levy (1969). 18 See, further, Levy (1999). 19 See, further, Dichter (1964). 20 See Karesh (1995). 21 See Langer (1951). 22 See Simmel (1908). 23 See Weber (1946, 180–195). 24 See Ansbacher (1967). For a short history, see Berzano and Genova (2015). 25 See Wells and Tigert (1971). 26 See Yankelovich and Meer (2006). 27 See Maslow (1943). 28 See Mitchell (1983, VII). 29 Gombrich (1968, 352–353). 30 See the classic study of Sobel (1981).



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31 Charles Taylor defined modern subjectivity in terms of ‘expressivism’; see Taylor (1995). 32 See Hebdige (1979) and Bennet and Kahn-Harris (2004). 33 See Blumer (1969). 34 See Ferrara (2008).

BIBLIOGRAPHY Ansbacher, Heinz L. 1967. ‘Lifestyle: A Historical and Systematic Review’. Journal of Individual Psychology 23: 191–212. Apkon, Stephen. 2013. The Age of the Image. Redefining Literacy in a World of Screens. New York: Farrar, Straus and Giroux. Barthes, Roland. 1972. Mythologies. New York: Noonday Press. Bennett, Andy, and Keith Kahn-Harris, eds. 2004. After Subculture; Critical Studies in Contemporary Youth Culture. New York: Palgrave. Berzano, Luigi, and Carlo Genova. 2015. Lifestyles and Subcultures. History and a New Perspective. London: Routledge. Blumer, Herbert. 1969. ‘Fashion. From Class Differentiation to Collective Selection’. The Sociological Quarterly 10: 275–291. Bredekamp, Horst. 2010. Theorie des Bildakts. Frankfurt am Main: Suhrkamp Verlag. Calkins, Earnes Elmo. 1915. The Business of Advertising. New York: D. Appleton. Coccia, Emanuele. 2006. ‘Regula et vita. Il diritto monastico e la regola francescana’. Medioevo e rinascimento 17: 97–147. Coccia, Emanuele. 2010. ‘La legge della salvezza. Bernardo Clairvaux e il diritto monastico’. Viator 4: 127–146. Coccia, Emanuele. 2014. ‘Tutti i colori delle cose. Benetton, Toscani e la cultura italiana del secondo novecento’. Allegoria 68: 96–116. Coccia, Emanuele. 2015. ‘La norma iconica’. Politica e Società 4: 61–80. Dichter, Ernest. 1960. The Strategy of Desire. Garden City, NY: Doubleday. Dichter, Ernest. 1964. Handbook of Consumers Motivations. The Psychology of the World of the Objects. New York: McGraw-Hill. Durkheim, Emile. 1912. Les formes élémentaires de la vie religieuse. Paris: PUF. Ferrara, Alessandro. 2008. The Force of the Example: Explorations in the Paradigm of Judgment. New York: Columbia University Press. French, Georg. 1909. The Art and Science of Advertising. Boston, MA: Sherman. Gombrich, Ernst H. 1968. ‘Style’. In International Encyclopedia of the Social Sciences, vol. 15. New York: The Free Press, 352–353. Goodrich, Peter. 2014. Legal Emblems and the Art of Law: Obiter Depicta as the Vision of Governance. Cambridge: Cambridge University Press. Hebdige, Dick. 1979. Subculture. The Meaning of Style. London: Methuen. Hruschka, Joachim. 1999. ‘Supererogation and Meritorious Duties’. Jahrbuch für Recht und Ethik/Annual Review of Law and Ethics 6: 93–108.

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Isherwood, Baron, and Mary Douglas. 1979. The World of Goods: Towards an Anthropology of Consumption. New York: Basic Books. Karesh, Michael. 1995. ‘The Social Scientific Origins of Symbolic Consumer Research: Social Research, Inc.’ In Marketing History: Marketing’s Greatest Empirical Experiment: Proceedings of the 7th Conference on Historical Research in Marketing & Management Thought, edited by Kathleen M. Rassuli, Stanley C. Hollander and Terence R. Nevett. East Lansing: Michigan State University, 95–111. Kotler, Philip, and Sidney J. Levy. 1969. ‘Broadening the Concept of Marketing’. Journal of Marketing 33: 10–15. Langer, Susanne K. 1951. Philosophy in a New Key. Cambridge, MA: Harvard University Press. Latour, Bruno. 1992. ‘Where Are the Missing Masses, Sociology of a Few Mundane Artefacts Application/pdf Icon’. In Shaping Technology-Building Society. Studies in Sociotechnical Change, edited by Wiebe Bijker and John Law. Cambridge, MA: MIT Press, 225–259. Levy, Sidney J. 1999. Brands, Consumers, Symbols, & Research: Sidney J. Levy on Marketing. Thousand Oaks, CA, and London: Sage Publications. Maslow, Abraham H. 1943. ‘A Theory of Human Motivation’. Psychological Review 50: 370–396. Mitchell, Arnold. 1983. The Nine American Lifestyle. Who We Are and Where We’re Going. New York: Macmillan Publishing Company. Mnookin, Jennifer L. 1998. ‘The Image of Truth: Photographic Evidence and the Power of Analogy’. Yale Journal of Law & the Humanities 10: 1–74. Severi, Carlo. 2007. Le principe de la chimère: une anthropologie de la mémoire. Paris: Editions Rue d’Ulm-Musée du quai Branly. Simmel, Georg. 1900. Philosophie des Geldes. Berlin: Duncker and Humblot Verlag. Simmel, Georg. 1908. Das Problem des Stiles. In Dekorative Kunst. Illustrierte Zeitschrift für Angewandte Kunst. hrsg. von H. Bruckmann, 11. Jg., n. 7 (April), Bd. 16, 307–316. Sobel, Michael E. 1981. Lifestyle and Social Structure. Concepts, Definitions, Analyses. New York: Academic Press. Stafford, Barbara Maria. 1994. Artful Science. Enlightenment, Entertainment and the Eclipse of Visual Education. Cambridge, MA, and London: MIT Press. Strauss, Claude Lévi. 1966. The Savage Mind, Chicago. Chicago, IL: The University of Chicago Press. Taylor, Charles. 1995. Sources of the Self. The Making of Modern Identity. Cambridge, MA: Harvard University Press. Venturi, Robert, Denise Scott Brown and Steven Izenour. 1977. Learning from Las Vegas. The Forgotten Symbolism of Architectural Form. Cambridge, MA: MIT Press. Verbeek, Peter-Paul. 2011. Moralizing Technology: Understanding and Designing the Morality of Things. Chicago, IL, and London: University of Chicago Press.



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Weber, Max. 1946. ‘Class, Status, Party’. In Essays in Sociology. Id., edited by Hans Heinrich Girth and Mills Wright. New York: Oxford University, 180–195. Wells, William D., and Douglas J. Tigert. 1971. ‘Activities, Interest, and Opinions’. Journal of Advertising Research August: 27–35. Winner, Langdon. 1980. ‘Do Artifacts Have Politics?’ Daedalus 109: 121–136. Yankelovich, Daniel, and David Meer. 2006. ‘Rediscovering Market Segmentation’. Harvard Business Review 84: 122–131.

Chapter 9

If Law Speaks, It Speaks of Enjoyment Psychoanalysis and Desire Justin Clemens

From its beginnings in fin-de-siècle Vienna, psychoanalysis offered a radically new account of the grounds, functions and implications of law. Whether it was a question of the establishment of law in the body of an individual or a collective, the consequences of such an establishment in the irremediable splitting of consciousness, or the paradoxes of experience and action that flowed from such splitting, Sigmund Freud and his colleagues sought to demonstrate that the origins, operations and effectiveness of law were contingent upon unheralded forms of desire and enjoyment. Even more significantly, this foundation of the law in enjoyment not only bred a plethora of imaginative transgressions, at once sexual and aggressive, but split the law in its heart. In binding subjects by separating them from themselves, it turns out that the law simultaneously sequesters itself. Nonetheless, this dissimulating self-sequestration of law also proves to be non-negotiable in the constitution of the subject: the law works only by such asymmetrical auto-abstention. In giving such an account of the law, psychoanalysis both extends and overturns the traditional themes of philosophy, insofar as psychoanalysis inexorably corrodes any concept of the supreme good, of the priority of reason, or any easy linkage between consciousness and action. In this chapter I examine what becomes of this paradoxical complex – for which the history of psychoanalysis proposes a variety of famous, if dissatisfactory, monikers, such as the ‘Oedipus complex’ and ‘castration complex’ – in the work of Freud and his inheritors. For the most part I will not discuss the relation of psychoanalysis to particular positive laws but take up some of the implications of what we might call law ‘as such’, along comparable lines

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to those sketched by Philippe Lacoue-Labarthe and Jean-Luc Nancy when they remark: The problem of culture is never anything else for Freud than the problem of the Other or, to put it in a very banal way . . . it is the problem of coexistence, and of pacific coexistence with the Other. It is therefore not a political problem, and not exactly the political problem because it is not certain that this problem arises for politics or that it arises on its own. But it is surely the problem of the political, which is to say, that concerning which the political begins to pose problems. (Lacoue-Labarthe and Nancy 1997, 4)

If Freud, notoriously, would himself later try to pin down the origins of law in an erratic circulation between the associated convictions that ‘anatomy was destiny’ (i.e. dependent upon the dimorphic sexual differentiation of Homo sapiens), that a human infant’s protracted dependency upon its carers had radical effects and that the incest prohibition and the murder of the primal father were in fact universal, the problem of law in and for psychoanalysis receives perhaps its most rigorous theoretical treatment from Jacques Lacan in his own fusion of Saussurean linguistics and Freudian psychoanalysis, whereby the origins and operations of law become nothing other than the ‘law’ of the signifier itself. Although the present context entails that I will only be able to briefly indicate the most marked way stations of these developments, I will try to suggest how a problematic of law is enmeshed with psychoanalysis from the start, even if the details of this ‘enmeshing’ may require further argument to be fully persuasive. Yet, despite this intimate and integral enmeshing of psychoanalysis with a new kind of relation to and analysis of the origins and function of law, in the end psychoanalysis also purports to be done with the law. Certainly, the problem of law in psychoanalysis emerges very quickly, if at first under the cover of an essentially positivistic ‘scientific’ inspiration. In their early Studies on Hysteria (1893–1895), Freud and Josef Breuer surmised that what had been ancestrally excluded from consciousness through the de facto diktats, that is, the excessive affects of infantile experience, could return in hysterical somatic symptoms, thereby implicating conscious prohibitions (often expressly legal or, at least, legalistic) with deleterious biophysical consequences.1 That the repressed often returned in unrecognizable forms further suggested that, in general, its ciphered return was inextricable from the prohibition itself. What gives rise to such prohibitions? Here, it is a traumatic experience that at once must be and cannot be successfully ‘bound’ by the subject. Therefore, it is in laying down for themselves certain evasions that the sufferers come a cropper; it is in response to trauma that, like parodic Kantians, hysterics give themselves a law they immediately set about transgressing. As it is through their very assent and attentiveness to the claims of law that they become sick, hysterics propose that neurotic illnesses



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proffer an indelible mark of thwarted criminality. As a result, law, criminality and madness must henceforth be considered an irreducible triplet in the constitution of the individual’s mental life, a fact in some way recognized and exposed by the very hysterics who were unknowingly protesting against its vital constraints.2 It is therefore crucial in this context to give ‘hysteria’ its full psychoanalytical force. If the term is now absolutely moribund in psychiatry and, beyond that, most often considered an unjustifiable sexual-political residue of patriarchal and misogynist culture, this is precisely not how it is treated by Breuer and Freud. On the contrary, the apparent inexplicability of the sufferings of the (mainly-but-not-exclusively) young women diagnosed as hysterics was precisely part of the structure of the condition, the very difficulty of hysteria’s treatment derived from internal strictures regarding expression that had initially been catalysed by surplus affect, hence the need for the development of a therapeutic method that encouraged the sufferer to reattach forgotten memories to his or her original affects through extensive descriptions (the so-called cathartic method): We found, to our great surprise at first, that each individual hysterical symptom immediately and permanently disappeared when we had succeeded in bringing clearly to light the memory of the event by which it was provoked and in arousing its accompanying affect, and when the patient had described that event in the greatest possible detail and had put the affect into words. Recollection without affect almost invariably produces no result. (Freud and Breuer 1957, 6)

What ‘hysterics’ thereby supposedly show, in the very extremity of their experience, is a constitutive element of absolutely everyday humanity that usually passes without notice: that the human body is not just a biophysical entity but a signifying machine created from the collision of flesh and law. Hysteria is an experimental laboratory in which each sufferer presents a singular case of the corporeal consequences of a too-strenuous separation of memory and affect. If, in Studies on Hysteria, the origins of the law of the psyche are left unclarified by Breuer and Freud – the default sequence of analogies being ultimately governed by terms drawn from evolution and energetics – it is already clear that its major operation is linked to an intimate and intrusive prohibition, a ‘no!’ to a desire that is nevertheless not neutralized by such a prohibition. A symptom is a conversion and a compromise formation of an internal conflict caused by a psychic reaction to the law. Indeed, the phrase translated as ‘inadmissible to consciousness’ in the Standard Edition receives the following suggestive note: This expression [‘Bewusstseinsunfähig’] is not unambiguous and for that reason leaves much to be desired. It is, however, constructed on the analogy of

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‘Hoffähig’ [‘admissible to Court’, ‘having the entrée’] and may in the meantime be used for lack of a better term. [Though on the analogy of ‘Hoffähig’ the word is here translated ‘inadmissible to consciousness’, its literal meaning is ‘incapable of consciousness’. It could equally well be translated ‘incapable of being (or becoming) conscious’. The word was adopted by Freud and frequently used by him, and the context then often calls for one of these other renderings.] (Ibid., 225)

If their captivation by energetics induces Breuer and Freud to identify the origins of hysteria in a split between memory and affect created by the trauma of excess excitation, a countervailing sequence of expressions evinces a recognition of the centrality of a relation of public law in the aetiology and maintenance of the condition, for Breuer and Freud describe three quite different modes by which ideation can be struck with tormenting difficulties: first, that one’s thoughts do not conform to one’s self-image or ideal (hence moral inadmissibility); second, that the thoughts themselves are contradictory (and hence, at the very least, unfillable); and third, that there may be an actual incapacity to think certain thoughts at all (absolute inhibition). This triple of the inadmissible, unfulfillable and inhibitory necessarily cannot exclude the question of the impact of (social, moral) law in the psyche. Indeed, part of the staging essential to hysteria is its patent crossing of proper limits, whether public/private, body/mind, self/other and so on. Yet it is clear to Freud at least, given his sensitivity to radical anthropological cultural variability, that the particular limits to which hysterics address themselves are in fact established as a function of contingent local practices, of specific laws and social mores. Yet if Freud too strongly affirms the local and singular character of these laws, then that would threaten to vitiate the scientific character of his research. All the old conundrums regarding nature and nurture, necessity and contingency, inheritance and experience re-emerge at this point. This is also where the problem of attention and presentation becomes most acute. As Freud confesses in a famous passage: I have not always been a psychotherapist. Like other neuropathologists, I was trained to employ local diagnoses and electro-prognosis, and it still strikes me myself as strange that the case histories I write should read like short stories and that, as one might say, they lack the serious stamp of science. I must console myself with the reflection that the nature of the subject is evidently responsible for this, rather than any preference of my own. (Ibid., 160)

Elsewhere, I have discussed this aspect of psychoanalysis under the heading ‘antiphilosophy’, that is, the necessity to draw upon literature not only for the writing up of case histories but in diagnosis and treatment too, without ever



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entirely departing the scientific frame.3 The point in this context is that Freud himself recognizes that this admixture of science and art is in ‘the nature of the subject’ itself: the singular collision of necessity and contingency, of biophysics and social law, cannot be captured without a concomitant modification of science. The subject emerges as an enigmatic support between and of irreconcilables; psychoanalysis, as the theory and treatment of this subject, finds itself likewise ‘estranged’. In fact, it is by extending these principles from their initial apparition in very particular personal, social and therapeutic circumstances to a nominally universal experience of human life in The Interpretation of Dreams that Freud further specifies the tight bond among the dreamwork, its laws and law, once again showing their paradoxical imbrication. Whereas Studies on Hysteria had affirmed that ‘hysterics suffer mainly from reminiscences’ – that is, from the continued action of suppressed antique desires gouging themselves into the present of the body as coughs or twitches or paralyses – The Interpretation of Dreams would propose the absolute primacy of desire in the aetiology and operation of dreams. Yet this desire could hardly function straightforwardly under such conditions of the ‘law’ – emblematically, the law of repression – and so is forced to express itself according to the preposterous pluriform pseudopodia of ‘hysterical identification’. Freud writes: What is the meaning of hysterical identification? It requires a somewhat lengthy explanation. Identification is a highly important factor in the mechanism of hysterical symptoms. It enables patients to express in their symptoms not only their own experiences but those of a large number of other people; it enables them, as it were, to suffer on behalf of a whole crowd of people and to act all the parts in a play single-handed. (1953, 149)

For Freud, this multiplication of identifications is not merely ‘imitation’ or ‘contagion’ but a form of assimilation founded on the inferences of the unconscious. Logic is at work, if it is not (entirely) Aristotelian: the contradictions in and of the unconscious put pressure on consciousness, which purports to bow to reality in its insistence on coherence and order. Yet if consciousness can sometimes seem to be pretending to be a good little Aristotelian in regard to its spontaneous affirmations of the principle of contradiction, the unconscious insistently effects a kind of systematic intrusion of ‘true contradictions’ into the psyche, as dreams testify. Yet the unconscious cannot directly do this. Once again, if the laws of logic are engaged and contravened in the divisions of consciousness, this is not only because biophysical laws are operative but because ideational material derived from familial and social experience is too.

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In his subsequent, expressly speculative anthropological accounts, such as Totem and Taboo, Freud extends the range of his theories of the unconscious directly to the origins and nature of public law. For Freud, if ‘neurosis’ models ‘normality’, then ‘ancient’ and ‘primitive’ societies can also model ‘modern’ ‘civilized’ ones. Therefore, Freud announces that, although ‘totemism’ allegedly no longer exists in contemporaneous European societies, it is the case that taboos still exist among us. Though expressed in a negative form and directed towards another subject-matter, they do not differ in their psychological nature from Kant’s ‘categorical imperative’, which operates in a compulsive fashion and rejects any conscious motives. (1955, xiii)

Freud immediately proceeds to enforce these links among modern morality, ancient taboo and the unconscious ‘horror of incest’ as clearly as possible: the law of every law, so to speak, is founded in a prohibition that entails a universal drive to exogamy. Drawing on the work of William Robertson Smith on the ‘totem meal’, and on Charles Darwin’s theses regarding the ‘primal horde’, Freud constructs his own notorious theses regarding the origins of the incest prohibition. The ‘tyrannical father’, who has excluded his sons in order to enjoy the women of the tribe himself, is murdered by the returning sons who kill him, redistribute the women and eat the body in what is perhaps the first true festive act of humankind. Totemism marks this murder with a fusion of contradictory excuses as it camouflages it with prohibitions regarding the totem animal: we never killed the father, only an animal; we did kill the father, but he was only an animal; if the father had only been an animal, we would never have killed him. Simultaneously, taboo, which accompanies such totemism, functions according to a different logic, which is also practical: the prohibition of incest and the necessary sharing of women of the tribe. The emblematic diagnoses of psychoanalysis return in the Freudian analysis of the origins of all law in a murder simultaneously achieved and denied: the law itself is always double, both totem and taboo, one aspect ultimately serving an emotional, the other a practical component, each functioning differently (as a ‘complex’) and yet as one. Yet, third, since the dialectic of forgetting and remembrance at work in totemism is unable to entirely discharge the abiding and uncanny sense of communal guilt at the immemorial founding moment, it gives rise to certain murderous ritual repetitions, to an attenuated and obscure sense of longing, to a kind of social allegory. At the fons et origo of what binds collectives together is the same injunction that forces parents and children apart, a primordial ban upon the earliest objects of love and dependency. As a result, the indicative terms – such as the Polynesian taboo, the ancient Roman sacer or the Hebrew kadesh – are



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induced by Freud into a kind of functional synonymy with each other at the very moment they divide internally, simultaneously and ambivalently signifying ‘consecrated’ and ‘unclean’. Or, if you prefer, in locating unexpected, if real, synonymies between unrelated cultures, we also discover that meaning can never become unequivocal. In dividing individuals, families and communities precisely in order to rebind them at another level, it turns out that the law itself operates according to a division it is itself unable to master; yet, in doing so, the ambivalent claims of law also turn out to be not only fundamental but inescapable, indeed, already inscribed in the individual as a kind of phylogenetic inheritance. And this unstable circuit is traced out through every node and edge, from the civilizational right down to the intimately personal; a shift at any point has consequences for all the others. As Freud puts it, ‘Emancipation from one renunciation is made up for by the imposition of another one elsewhere’ (ibid., 34). In this, taboo finds its most enthusiastic contemporary adherents in the phobic obsessionals familiar to modern psychiatry. Whereas hysteria revealed something essential about the asocial relation between psyche and symptom, obsession reveals something essential about the asocial relation between psyche and belief.4 Insurrection against the Law is the Law of Law. If Freud himself clearly spent an enormous amount of energy belabouring the question of the relation between law and desire, the psychoanalyst who has perhaps taken this relation – or, as we shall see, this ‘non-relation’ – most seriously, continuously and explicitly, thematizing its vicissitudes and placing it at the very centre of all his analytic considerations, is Jacques Lacan. In fact, one could immediately suggest that one of the primary motivations for Lacan’s notorious call for a ‘return to Freud’ – Freud’s insights having supposedly been abandoned and betrayed by the very schools that purported to continue his legacy – was that he, Lacan, was precisely battling against the occlusion of the function of the law across a range of post-Freudian orientations. To this end, Lacan significantly reduced and clarified the topology of this function of Freudian law, rendering it, at least for much of his teaching, equivalent to the laws of language itself. Freud, as we have briefly canvassed earlier, bound the law first to unconscious desire; second, to irreducible ambivalence, both in its own operations and in its concomitant affects of love-hate; and, third, to irreducibly contradictory expressions that, in essaying to cipher their origin in uncircumventable mental conflicts, evince a peculiar consistency in their very inconsistency and do so in a grand anthropological frame. If Lacan proposes to follow Freud as faithfully as possible along these rather tortuous defiles, it turns out that this fidelity requires a paradoxical detour in its turn: to return to Freud required a dalliance with structural linguistics; in doing so, the question of the law itself takes on a new import.

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One of the things Lacan had quickly noticed about Freud’s ‘discovery’, as Lacan liked to call it, was precisely how – across an incredible range of anthropological evidence – it adverted at crucial moments to the operations of two central principles, those of ‘similarity’ and ‘contiguity’. Let me give two especially pertinent examples in this context, drawn from texts already cited. The first comes from The Interpretation of Dreams. When Freud speaks of the fundamental operations of the dreamwork, which bears upon the relation between dream-thoughts and dream content, he offers four major operations: condensation, displacement, considerations of representability and secondary revision (if we leave the problems raised by ‘overdetermination’ aside). It is the first two of these that will concern us principally here, since they bear upon not the entry into or aftermath of daily experiences in their relation to dreaming proper but the immanent interweaving of thought with its materials per se, of the transformation of latent to manifest content. (Indeed, both the categories of ‘representability’ and ‘revision’ can in some ways be seen as elaborations upon the prior two, as the operation of inclusion in set theory is a derivation of the operation of belonging.) Condensation (Verdichtung) concerns the compression of various elements in a dream into a new form: whether that of Alexander the Great’s vision of a satyr dancing on a shield, interpreted by his advisor as ‘Tyre is yours’; or the strange structures in Irma’s throat; or, indeed, in the multiple linguistic compressions Freud adduces, such as norekdal (a composite of Ibsen’s characters ‘Nora’ and ‘Ekdal’), Maistollmiitz (a composite of Mais [‘maize’], toll [‘mad’], mannstoll [‘nymphomaniac’] and Olmiitz [a Moravian town], each of which turns out to compress other, further associations), or many other nonsense words.5 As for ‘displacement’ (Verschiebung), the charge of the dream’s energy and content is displaced onto a minor, irrelevant or otherwise misleading element. Indeed, because of the limitations of the dream in representing, say, logical connectors, the dreamwork also has recourse to another kind of displacement – Freud directly names it such – which, say, ‘results in a colourless and abstract expression in the dreamthought being exchanged for a pictorial and concrete one’.6 In any case, the immanent transformation from latent to manifest is governed by this double operation of condensation and displacement, which transmutes the necessary linearity of thought expressions into the compounded simultaneity of ciphered ideograms. The second example comes from Totem and Taboo. When discussing the fundamental role of ‘sorcery’ and ‘magic’ in human life, Freud takes it as axiomatic that they are technologies of power, ‘a body of instructions upon how to obtain mastery over men, beasts and things’.7 As technologies, these formations cannot precisely be arbitrary or lawless: they are not simply accounted



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for by thinking of them as taking imaginative relationships for physical ones, as Tylor and Frazer had suggested. Rather, they function according to a complex fusion of forms of ‘contact’. Freud proceeds to specify: It is further to be noticed that the two principles of association – similarity and contiguity – are both included in the more comprehensive concept of ‘contact’. Association by contiguity is contact in the literal sense; association by similarity is contact in the metaphorical sense. The use of the same word for the two kinds of relation is no doubt accounted for by some identity in the psychical processes concerned which we have not yet grasped. We have here the same range of meaning of the idea of ‘contact’ as we found in our analysis of taboo.8

If, in relating the anthropological accounts of magical practices, Freud emphasizes their public and pragmatic nature as opposed to the private and personal nature of dreams, this is only in order to connect them by a peculiar torsion. Magic is governed by the principle of the ‘omnipotence of thoughts’ and dreams by the principle of the indestructible wish. What they share is precisely an isomorphism of operations: the ‘displacement’ and ‘condensation’ familiar to us from the dreamwork find correlates in the contiguity and similarity of magic work. As Freud points out, if obsessive rituals begin as a flight from anything sexual, ‘magical defences against evil wishes’, they end not only by substituting for but ‘imitating’ the illicit act itself. This imitation is itself only possible as unconsciously motivated dissimulation, which thereby provides near-impeccable public alibis for its acts. Note that I have drawn – and somewhat forced, for reasons that will soon hopefully become apparent – several instances from the Freudian text that do not restrict themselves to a specifically clinical frame of psychoanalytical theory and treatment proper but propose that the apparently abnormal, extreme or limit experiences of hysterics and obsessionals rather evince atavistic structures most often hidden in the banal confusions of everyday life. This is why Freud is perhaps not entirely compromised by the manifold criticisms that he is supposedly illicitly extrapolating ‘from his explorations on the couch of the infantile fantasy world of fin-de-siècle Viennese neurotics to the social organization of homo sapiens at the very dawn of civilization’.9 On the contrary, Freud’s method in these texts is never altogether, as Russell Grigg notes, ‘applied psychoanalysis’ but rather a prolongation of the question of how law ties the psychic to the political and vice versa. And it is precisely at this point that Lacan makes his intervention. If Lacan’s indebtedness, at least in the formative period of his work, to the post-Saussurean linguistics of Roman Jakobson and the post-Saussurean structuralism of Claude Lévi-Strauss is already well known and perhaps

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over-commented upon, it is, nonetheless, necessary to take up a certain thread of it here. Yet it is also necessary to mention that, due to the specificities of his clinical work, Lacan was from the first involved with psychogenic phenomena whose clinical implications were expressly caught up in contraventions of public law. In 1932, Lacan had completed his doctoral thesis on Paranoid Psychosis and Its Relation to the Personality with a study of Marguerite Anzieu, named Aimée in the text.10 Anzieu had attempted to stab a successful Parisienne actress and had been committed to Sainte-Anne hospital with a diagnosis of ‘persecutory insanity’. Lacan was also concerned with the notorious murders committed by the Papin sisters, Christine and Léa, the servants of Mme Lancelin and her daughter Geneviève (who also became the subjects of a famous play by Jean Genet, The Maids). In February 1933, in response to a brusque remark from their employer, the sisters killed both Lancelins using a knife and hammer and mutilated the bodies, tearing out their eyes. With regard to both these cases, which he explicitly compared with each other, Lacan emphasized the brutal acting-out of the women according to a psychogenic logic of castration and specular identification, self-punitive paranoia and Platonic erotomania. As Roudinesco comments: Beyond that series of interpretations through which Lacan elaborated his doctrine, the originality of a position tending to forge a new conception of the relations between psychiatry, criminology, and penal justice may be seen to emerge. . . . With Freud’s message, Lacan thus de-realized the crime without dehumanizing the criminal. At the same time, he emphasized that psychoanalysis resolved the principal enigma of criminology, which remained stymied by the dilemma of a symmetry endless pitting reason and madness, man and beast, God and Satan against each other.11

Lacan, moreover, maintained this explicit interest in the relations between law, crime and psyche for several decades. In a presentation co-written with another psychoanalyst Michel Cénac, and republished in the Ecrits as ‘A Theoretical Introduction to the Functions of Psychoanalysis in Criminology’ (1950), Lacan begins by noting that a certain quest for truth at once constitutes the object of criminology and unites its forensic and anthropological aspects. Moreover, what constitutes a criminal act is situationally dependent, and yet there is no human situation which is not bound by a kind of positive law, a law which always determines punishments ‘whose infliction, regardless of the forms it takes, requires subjective assent’.12 Citing Saint Paul and Malinowski, Lacan suggests that the problem of the relation between such subjective assent and social responsibility engages the necessity of accounting for the problem of the ‘symbolism’ of the crime, which itself alerts us to the primal, pathogenic effects of law itself. In the subject’s mental life, these



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effects have the correlate of guilt. As Lacan continues, invoking ‘incest and parricide’ as the originary crimes: We can understand why Freud, the physician, having received in the field of psychology such a significant contribution from the social realm, was tempted to return the favour, and why he wanted to demonstrate the origin of universal Law in the primal crime in Totem and Taboo in 1912. Whatever criticism his method in that book might be open to, what was essential was his recognition that man began with law and crime.13

And this is why Lacan wishes to emphasize the ‘unreal’, the fragmented structure of the self-punishments inflicted by certain criminals through the externality of the judicial process itself. Their acts are, if absolutely real, motivated by and aiming at an imaginary dimension; to this extent, they are also somewhat detached from the externality of social motivations and sociological explanations. This is not to say that there are not ongoing transformations in the relation of crime to society. On the contrary, no possible social transformation will be able to reduce the original alienation of humans from their environments, without, for that, being able to identify so-called criminal instincts or any organogenic madness as inscribed within the species Homo sapiens. If, in a sense, these three studies by Lacan are in fact ‘pre-Lacanian’ – that is, they predate the innovations that made Lacan one of the great figures of psychoanalytic theory and practice – a case can be made that it was in part due to his interest in the public nature of extraordinary criminal acts committed by persons whose mental functioning was adjudged by the judicial system to be questionable that persists in an abstract form in his later work. If, as psychoanalytical theory maintains, every individual’s desires are, in principle, criminal acts, how is it and under what circumstances is a passage to such acts possible? In this context, mutilation, murder and suicide become integral evidence in the matter of mind, if, of course, for the ‘law-abiding citizen’, his or her thought-murders take place without acceding to the externalization of an acting-out in reality. Yet it is still in this place of primordial criminality that Lacan’s intercalation of Freudian and Saussurean terms is effected, with a little help from Jakobson and Lévi-Strauss. In this context, I will conclude by taking up only one aspect of Lacan’s doctrines, at least as they are available from the Ecrits, in order to reinforce their links with a thinking of the rule of law. In this context, it is in his direct fusion with the problem of the letter that the law is both instantiated and undone. For Lacan, it is the letter itself as a literal, material mark that supports discourse that becomes key to the interlocking of law and psyche. In emphasizing this external, material aspect of language, Lacan suggests how both law and psyche are in a critical sense downwind of the letter that delivers their operations.

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As is probably too well known, Lacan follows a number of Saussure’s claims: that language is a system of differences without positive terms; that each sign, itself differentially defined within the system, is composed of an indissoluble unity of signifier (the material mark) and signified (the concept). For Lacan, then, for a signifier to signify at all, it must (a) be materially discriminated from non-signifying sounds/marks (from non-language) and (b) be materially discriminated from other signifying marks (each signifier is not the other signifiers). This is the double differentiation of the materiality of language so crucial to Saussure: it is difference that rules the exterior and interior of the system. Yet it is also the case that (c) the signified, which must, for a signifier to be a signifier at all, be presumed as ‘fused’ with that signifier, can never be materially presented as such (otherwise it would itself be a signifier). It is this third moment that distinguishes Lacan from the usual ruck of Saussurean theory. As Lacan writes: As in the case of every science in the modern sense, it consists in the constitutive moment of an algorithm that grounds it. This algorithm is the following:

S — s It is read as follows: signifier over signified, ‘over’ corresponding to the bar separating the two levels.14

To rely on a banal but useful analogy, then, Lacan wants to point to the fact that a signified is never, ever encountered anywhere. On the one hand, a signified must be presumed or presupposed for a signifier to be a signifier, and not just any sound or noise; on the other, when asking as to the ‘meaning’ of a signifier, one can only receive other signifiers, which, in essaying to delimit the signified, introduce further divagations into the sense. This is then the first crucial Lacanian point: a signified does not exist but insists; it presents as a promise of meaning that cannot be kept; it is a void or lack on the other side of language, omnipresent yet constitutionally elusive. This, in a word, is exactly what ‘the phallus’ is for Lacan at this point in his work: the signified itself, or, what he will rather call ‘the transcendental signifier’. Since this signifier is essentially empty, lacking, it governs, through the very vacuity of its absence, the manifold elucubrations of anthropologic becoming. The law of language – and hence of all positive laws too – is that it is founded on an irretrievable constitutive lack. Let us stick with the dictionary example for a moment. I spoke earlier of how Freud constantly returns to the double weave of displacement and



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condensation that constitute the dreamwork and magic work. What Lacan does is take up this double movement in the specific context of his rewriting of the Saussurean algorithm, by rendering these operations in linguistic terms. To ask for the meaning of a word is to be rewarded only with a deforming synonymy which dissimulates its own lack; to capture something essential about the lack, one receives instead a new construction which gains its object only by transforming it. Russell Grigg has provided a useful table of the relevant linguistic distinctions (table 9.1):15 Table 9.1  Axis Mode Relation (Saussure) Relation (Jakobson) Trope

Paradigm Selection substitution In absentia Similarity Metaphor

Syntagma Combination context In praesentia Contiguity Metonymy

Here Lacan draws on Jakobson’s famous essay on the ‘metaphoric and metonymic poles of language’: the asking of explanations for signifiers functions metonymically; the creation of a new meaning arrives metaphorically. The law of language is at once divided and woven between the metonymy of desire and the metaphor of the symptom, linking Lacan’s doctrine explicitly back to the Interpretation of Dreams and to Totem and Taboo. Yet these recognitions are not the kernel of the Lacanian inversion. What matters for Lacan is the bar itself that makes and marks the division between signifier and signified. And it is with respect to this bar that Lacan will elaborate the relationships among sexual difference, psychopathology and law. Lacan uses the bar as an algorithm for repression itself: the transcendental signifier, the phallus, is ‘repressed’ beneath the bar of sign differentiation, to the ‘unconscious’. This is how language for Lacan normally functions. However, because he is a psychoanalyst, this ‘normality’ must also be already compromised, revelatory of psychic operations that are overwrought from the start. In fact, the normal use of language turns out to be exemplarily neurotic. For Lacan, psychopathology can be understood with respect to the four possible operations regarding this bar in language. If language is necessarily always public, if it necessarily always preexists its users, if language therefore is always learned by each child literally with its ‘mother’s milk’ (i.e. any caregiver’s nutrition), then the problem of the uptake of the law of language in each child is also the problem of psychoanalysis. Since the bar in language is essentially a prohibition on the meaning that it simultaneously makes possible, Lacan takes this bar as providing the basis for the most general theory

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of law itself. Language begins not in a positive moment but as a negative one, as a ‘no!’ Thus, when a child takes up language – that is, when it has a primal encounter with this ur-parent! – it must also negotiate this structural prohibition. For Lacan, a neurotic says yes to this no, precisely insofar as the child accepts the law of language; a psychotic, however, forecloses this negation by saying no to this no; a pervert, whose characteristic operation is that of disavowal, says yes and no to this no simultaneously.16 The entire field of psychopathology is thereby stripped of biologism and returned to a division of the law – itself singularly divided for each of these clinical positions. As one can immediately see, every being caught up in language necessarily has to submit to the law of language – which is to be multiply sectioned by the signifier in ways that are paradoxical from the point of consciousness and logic. The law is self-divided; it is founded on a lack; it universally divides its subjects according to a triplet that is unconscious and, for the most part, indiscernible. Although this is not the place for a full exposé, it is worth briefly underlining that Lacan relies integrally on this distribution for nosology, diagnosis and treatment. Indeed, if neurosis, psychosis and perversion exhaust the field of psychopathology (Yes-to-No, No-to-No, Yes-and-No-to-No), and if language use itself entails an irremediable subjection to the processes of desireand-symptom, the void-in-the-real and so forth, the only possible treatment in psychoanalysis must involve the (punctual) suspension of this structure as such, coming to a neither-yes-nor-no to signification. This complex is precisely what Lacan means with his famous syntagma ‘the names of the father’. In French, this is written as les noms-du-père, which is homophonic with les nons-du-père, the nos or prohibitions of the father; also, with the locution les non-dupes-errent, that is, the non-dupes err; formally, it is modelled on the phrase for the nobiliary particle, the nom de terre, the ‘of’, ‘de’, ‘von’, ‘van’ and so on, which designate a family’s relation to land (in France, significantly, this could mean either a landlord or a peasant); we also have the nom de guerre, a name initially given to new recruits in the French army; finally, we have the well-known expression nom de plume, a pen name, an assumed name used by a writer instead of the official name. This homophonic and formal network essentially sums up the roles that language plays for subjects for Lacan: it crystallizes a bastard inheritance, negation, sexual differentiation, dissimulation, hierarchy, polemic and symbolic transformation, all at once. Finally, Lacan’s constant deployment of such festering knots of homophonic compression is part of his practice of the difference that psychoanalysis makes: the ‘knowledge’ it deals with cannot ever finally be clearly and distinctly phrased in wellformed propositions.



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Just as Freud spoke of conditions of representability in the dream as being linked to a constitutional incapacity of dreams to ‘say what they mean’, Lacan generalizes this stricture to language itself. Language can’t ‘say it all’, for a number of structural reasons that I have attempted to outline earlier. But what psychoanalysis can and does say is this: the law of the law is that the law functions only in its self-division; to be subject to this law is to be subject to the return of the repressed of this law, that this subjection is simultaneously universal and exceptional. Finally, what the law is based on, as it mutates beyond recognition, is not reason, truth, justice or so forth: it is based on a dialectic of an organism which runs only according to pleasure; in basing itself there, the law continues to breed forms of enjoyment that are in excess of any possible recuperation for that organism. NOTES 1 See Freud and Breuer (1957). 2 Although this relation between criminality and the psyche is not thematized by Freud and Breuer, Freud himself starts to move more and more towards an analysis of human life as founded on repressed criminality whose affective representative in the psychic economy is, of course, ‘guilt’. I will briefly discuss Totem and Taboo later, but there are also, of course, the important texts ‘Psycho-Analysis and the Establishment of the Facts in Legal Proceedings’ (1906), in Freud (1959, 97–114), in which Freud makes the point: ‘In the neurotic the secret is hidden from his own consciousness; in the criminal it is hidden only from you. In the former there is a genuine ignorance, though not an ignorance in every sense, while in the latter there is nothing but a pretence of ignorance’; ibid., 111, which, further, entails that the former helps with the analyst in the struggles against his or her own resistances, while in the case of criminal questioning the resistance tends to work against the court, a difference founded on the localization of the resistance in the former case between conscious and unconscious; and section III, ‘Criminals from a Sense of Guilt’, in ‘Some CharacterTypes Met With in Psycho-Analytic Work’, in Freud (1957, 309–333); see also Fenichel 1928, 47–70). 3 See Clemens (2013). 4 As Rank, Sachs and Payne (1916) comment in their brief survey regarding the relation between contemporary criminal law and unconscious motivations for parricide: ‘The case must be that every individual unconsciously transfers himself into the mental situation of the criminal, identifies himself with the latter. The crime, which the community punishes, was thus unconsciously committed by each of its members . . . murder of a father is to be considered as the archetype of crime. . . . The parallels with what psychoanalysis has found in the unconscious mental life of the individual may thus be shown in the origin and development of the criminal law’, 326–327. 5 Freud notes that ‘this same kind of analysis and synthesis of syllables – a syllabic chemistry, in fact – plays a part in a great number of jokes’, 1953, n. 1: 297.

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6 Ibid., 339. 7 Freud (1955, 78). 8 Ibid., 85. 9 Grigg (2008, 25). 10 See Roudinesco (1990, 109–114). 11 Ibid., 127. Note that Roudinesco’s italicized phrase ‘de-realized the crime’ and others are themselves drawn almost verbatim from Lacan. 12 Lacan (2006, 103). 13 Ibid., 106. A few sentences later, Lacan inverts Dostoevsky’s notorious assertion ‘God is dead, thus all is permitted’ along Freudian lines: ‘God is dead, nothing is permitted anymore’. 14 Ibid., 415. 15 Grigg (2008, 153). For a far more detailed technical account of the complexities of Lacan’s achievement here, see the essay from which this table derives, ‘Lacan and Jakobson’, 151–169. 16 For a more extended account of these operations, see A. J. Bartlett et al. (2014).

BIBLIOGRAPHY Bartlett, A. J., Justin Clemens, and Jon Roffe. 2014. Lacan Deleuze Badiou. Edinburgh: Edinburgh University Press. Clemens, Justin. 2013. Psychoanalysis Is an Antiphilosophy. Edinburgh: Edinburgh University Press. Fenichel, Otto. 1928. ‘The Clinical Aspect of the Need for Punishment’. International Journal of Psycho-Analysis 9: 47–70. Freud, Sigmund. 1953. The Standard Edition of the Complete Psychological Works of Sigmund Freud, Volume IV (1900), edited by James Strachey et al. London: The Hogarth Press and the Institute of Psycho-Analysis. Freud, Sigmund. 1955. The Standard Edition of the Complete Psychological Works of Sigmund Freud, Volume XIII (1913–1914), edited by James Strachey et al. London: The Hogarth Press and the Institute of Psycho-Analysis, 1–162. Freud, Sigmund. 1957. The Standard Edition of the Complete Psychological Works of Sigmund Freud, Volume XIV (1914–1916), edited by James Strachey et al. London: The Hogarth Press and the Institute of Psycho-Analysis, 309–333. Freud, Sigmund. 1959. The Standard Edition of the Complete Psychological Works of Sigmund Freud, Volume IX (1906–1908), edited by James Strachey et al. London: The Hogarth Press and the Institute of Psycho-Analysis, 97–114. Freud, Sigmund, and Josef Breuer. 1957. Studies on Hysteria in The Complete Psychological Works of Sigmund Freud, Volume II (1893–1895), edited by James Strachey et al. London: The Hogarth Press and the Institute of Psycho-Analysis. Grigg, Russell. 2008. Lacan, Language, and Philosophy. Albany, NY: SUNY. Lacan, Jacques. 2006. Ecrits. Translated by Bruce Fink with Helene Fink and Russell Grigg. New York: Norton.



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Lacoue-Labarthe, Philippe, and Jean-Luc Nancy. 1997. Retreating the Political, edited by Simon Sparks. London: Routledge. Rank, Otto, Hanns Sachs, and C. R. Payne. 1916. ‘The Significance of Psychoanalysis for the Mental Sciences’. The Psychoanalytic Review 3 (3): 189–214. Roudinesco, Elisabeth. 1990. Jacques Lacan & Co.: A History of Psychoanalysis in France, 1925–1985. Translated by Jeffrey Mehlman. Chicago, IL: University of Chicago Press.

Chapter 10

Love, Law, Anarchism Elena Loizidou

To love is to commit oneself to another not without the guarantee that love will be returned, but with the hope that it might be. Love takes place in the subjective mood: it may be, it might be, would that it were the case. The logic of love is akin to the logic of grace. I give something that is truly beyond my capacity to control. I commit myself to it completely, but there can be no assurance that love will be reciprocated. At any point in a love relation, the beloved can and must be able to say ‘I love you not’. If this is not the case, if the beloved cannot refuse love, then love is reduced to coercive control, to contractual obligation and command. Critchley (2015, 30–31)

When we ask each other to describe love, we tend to arrive at a variety of answers, love is ‘surprising’, ‘unpredictable’, ‘sensational’, ‘a feeling’, ‘damaging’, ‘devastating’, ‘delicious’, ‘exhausting’, ‘consuming’, ‘calming’, ‘stormy’, ‘fuzzy’, ‘the meeting of two fantasies’. This can continue for as long as we keep falling in love or being curious about it. Indeed, this is what Socrates found out when he asked the guests at Agathon’s gathering to praise love. The outcome was an extensive praise and discussion on love, which came to be known as The Symposium (III, 172–223). Furthermore, love has not just preoccupied philosophers; it has been the theme of an endless list of literary works, poetry, art, cinema, psychoanalysis, science and commerce.1 Nevertheless, when we are asked to describe love, or account for the feeling of love, we seem to be unable to settle with a single definition or description.2 The late cultural theorist Roland Barthes in A Lover’s Discourse: Fragments insists that this is because love is a unique and singular experience (2002, 2). He invites us to read the fragments on love in his book as animated figures, movements, where the lover grapples with the difficulties, ambivalences and energy that love induces in oneself. Thus, while we may not be able to 167

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articulate a single definition of love, we may be able to account for the variety of ways, experiences, effects and sensations that we seem to recognize as ‘love’. It is with this in mind that I approach here the relation between love, law and anarchism. This chapter is organized around three figures.3 Figure one presents love through the work of the poet, essayist and professor of classics Anne Carson. Carson does not describe love but instead provides us with an account of effects that are associated with love. In doing so, she tracks various shifts in the journey to falling in and out of love, and I suggest that she presents love as movement in terms of sensations, experiences and effects, as well as being ambivalent (uncertain), that is, as not something that once you ‘tasted’ you could possess forever. Figure two provides an account of the particular engagement of critical legal scholarship with the matter of love. Love is once more presented as a movement, but it is arrested within the fishnet of legality or law. The work of the professor of law Peter Goodrich is exemplary in its attempt to bring the question of love in conversation with law. While his endeavour is undoubtedly honourable, especially in meticulously exposing law’s universalizing claims, he simultaneously provides us with an account of love as law, a provision that, however, as I will argue, somewhat arrests love from its movement. Finally, in figure three, I revisit the movement of love through the biography of the anarchist Emma Goldman. On this occasion, love retains its movement. It is not reduced to Goldman’s anarchist ideology, but instead it challenges fundamental beliefs within anarchism, such as the belief in ‘free love’. One of the focal aims of this chapter, then, is to alert one to the possible pitfalls of the ways in which legal scholarship, in particular, brings together the themes of law and love. There is a tendency, as we shall see, to introduce the theme of love in legal scholarship as a way of pointing out the ‘limits’ of law, or the injustices that are inherent in legal codes. For such a critique, however, to be made possible, I would like to suggest that legal scholarship has to, instead, not arrest love within legal principles and practices (such as contractual principles or the practice of judgement), for, as Critchley puts it at the heading quote, ‘love [cannot be] reduced to coercive control, to contractual obligation and command’ (2015, 31). Alain Badiou and Nicolas Truong write that Plato tells us that ‘anyone who doesn’t take love as a starting point will never understand the nature of philosophy’ (2012, 3). This chapter draws equally on figures of love in order to not only present how such themes are taken up in literature, law and anarchism but moreover offer a critique of the Platonic ideal of love. For Plato love ‘is not love of an individual person, but either (ideally) love of beauty itself . . . or at best love of the cluster of beautiful and desirable qualities instantiated in the individual’ (Soble 1989, 151). While the proposition that



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love can provide us a better understanding of philosophy may stand, the idea that love is or should be about the love of beauty, or the love of an ideal, is more doubtful, if, precisely, we view love as an idea rather than an embodied and ambivalent movement. Instead, through a discussion later on anarchism and love,4 it will be suggested that an embodied account of love acts as a critique of ideality, in the first place, and simultaneously opens up the possibility of relating to the world without the burden of wanting to rid it of any ambivalence and contradiction. It is through critiquing ideality, and in this instance the Platonic idea of love, with reference to three figures of love, that I wish to contribute to the discussions on law and philosophy in this collection. FIGURE ONE: LOVE IN A FRAGMENT While there are multiple reflections and writings on love that I could have chosen to engage with in drawing an account of love, I have chosen to focus this initial engagement on Carson’s particular account of love in her Eros the Bittersweet (1998). Like Barthes (2002, 3–9), Carson does not avail herself with describing love but rather alerts us to the sensations, movements and intensities that love produces. Carson in Eros the Bittersweet offers an account of erotic love, drawing on classical philosophy and literature. She begins her account on love by introducing a fragment (fr. 130) by the archaic Greek poet Sappho. In this fragment, Sappho writes: ‘Eros once again limb-loosener whirls me | sweetbitter [glukupikron], impossible to fight off, creature stealing up’ (ibid., 3). Carson begins with this fragment, and while she translates the meaning of glukupikron as ‘sweetbitter’, she does not do so with the intention to define love but rather with a desire to make one attentive to the taste of love, a taste that we should never assume, as the word ‘sweetbitter’ designates, to have a stable consistency. Sappho, and along with her Carson, wants us to remember that falling in love may begin as a sweet delight, while bitterness may slip in as time goes by. It is crucial that Carson by choosing to begin her account of love with this particular fragment from Sappho’s poem avoids the definition of love. Instead, she leaves us with an account of love that tracks the movement of love or, better, what love does. And while there is no evidence in the book that Carson chose the poem deliberately, for poems are demonstrative of words in movement, I suggest that by choosing to organize the whole book around this fragment she consciously brings to our attention that the word ‘poem’ (in Greek: poiema, from the verb poiein), as Giorgio Agamben notes, refers to ‘bringing something into being’ (1999, 69). Such bringing is indicative of the movement in the noun poiesis. Once Carson alerts us to the movement (that forces our limbs to loosen), the sensational and paradoxical figurations (the word ‘sweetbitter’ captures

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two incongruent but concurrent tastes as one) of love, she invites us to follow her account of what Eros stands for, as in a series of unfoldings, whereby we evidence, among else, the lovers’ undoing. How does this unfolding play out? Let’s hear Carson. First, Carson writes, ‘Eros moves or creeps upon its victim from somewhere outside her: orpeton. No battle avails to fight off that advance: amachanon’ (1998, 4). Eros is an external energy, or, even, a force that ambushes the lover, allowing no space for resistance. It is a movement that renders the will of the lover null and void or, as Carson puts it, ‘foreign to her will’, which consequently ‘forces itself irresistibly upon her without’ (ibid.). The externality of Eros figures ‘eros [as] an enemy’, which leads Carson to conclude that we can understand Sappho’s reference to love as being bitter as ‘the taste of enmity. That would be hate’ (ibid.). At first instance, lovers experience Eros unexpectedly, and the feeling or sensation that overwhelms their bodies and soul is that of unfamiliarity or enmity. One does no longer recognize one’s self when in love. And since this surprising, ambushing experience of Eros is experienced as an invasion of one’s body and soul, it leaves a taste of bitterness in the lovers’ mouth, akin to the unexpected taste of a bitter almond from a mix-packet of otherwise delicious nuts. Carson insists that Sappho, and many other subsequent writers in the archaic period, never provide us with a concept of love but rather with its physis: ‘The moment when the soul parts on itself in desire is conceived as a dilemma of body and senses. On Sappho’s tongue, . . ., it is a moment bitter and sweet’ (ibid., 7). But the particularity of Eros does not end with its bittersweet taste, nor with the surprising movement that takes over its subjects’ souls and bodies. Carson explains that at the scene of love one witnesses an array of emotions and the total undoing of the subject. In Gilles Deleuze’s and Felix Guattari’s terms, this is a ‘becoming imperceptible’:5 In Greek the act of love is a mingling (mignumi) and desire melts the limbs (Lusimeles, cf. Sappho fr. 130). Boundaries of body, categories of thought, are confounded. The god who melts limbs proceeds to break the lover (damnatai) as would a foe on the epic battlefield. (Carson 1998, 7)

Moreover, Sappho, Carson writes, introduces us to the ambivalence of emotions. It is Eros that introduces ambivalence. ‘Love–hate’ and ‘bitter–sweet’ are some examples of the ambivalent, yet all too familiar, emotions that we experience when in love. We love and want someone, we desire them, we pursue them, but once we ‘get’ them we may, in fact, stop wanting them. This ambivalent movement towards the one we love, our love–hate relationship with them, demonstrates that our affection fills a hole in us for, as Carson puts it, ‘erotic desire can only be for what is lacking’ (ibid., 9). When one



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is in love, one does not desire the other because of who the other person is but rather because a hole in one’s own self is filled. There is, we may say, a hole in me that the lover may fill. Carson explains that this bittersweet movement of love, a love that takes us by surprise, fulfils a lack in us, Eros as lack, that mingles or brings bodies together and that makes visible how ambivalence plays a role in how we relate to the world and, simultaneously, defaces the fiction, most commonly depicted in popular culture, that depicts two people being in love as being one. On the contrary, Carson suggests that Sappho’s fragment shows that we are two in love, or in the pursuit of love (ibid., 16–17). The most important move revealed in Carson’s Eros the Bittersweet is that of the indication of the ambivalence of love. This ambivalence is presented almost as a law, but, as we shall see, this is not in the manner of a juridical law. Rather, it is in the sense of a way of doing things, an ethic, as Carson calls it. In drawing this point, Carson refers to classical Greece’s mores around same-sex love. She writes: Upper-class mores encouraged men to fall in love with and lay suit to beautiful boys while at the same time commending boys who spurned such attentions. ‘It is no simple thing’ to understand or to practice such an ethic, says Pausanias (183d) and he attaches to it the interesting label poikilos nomos. (Ibid., 24)

It was common practice in classical Greece for older men to amorously pursue younger men, but it was equally commendable for the young men to reject their advances and love. This practice is described by Pausanias as a poikilos nomos. For Carson, ‘the phrase poikilos nomos sums up the problem of erotic ambivalence’ (ibid.). And she correctly explains that ‘nomos means “law”, “custom”, or “convention” ’, while ‘poikilos is an adjective applicable to anything variegated, complex or shifting’ (ibid.). Carson adds, ‘nomos implies something fixed firm in conventional sentiment and behavior’, and ‘poikilos refers to what scintillates with change and ambiguity. The phrase verges on an oxymoron; or at least the relation between noun and adjective is a richly devious one’ (ibid.). This paradoxical or oxymoronic practice of love in ancient Athens had another purpose. It symbolizes, or implies, that Eros’s ‘essence and loveliness is in its ambivalence. The erotic code is a social expression of the division within a lover’s heart. Double standards of behavior reflect double or contradictory pressures within erotic emotion itself’ (ibid.). Carson has introduced us here to love as movement. To a love which in its movement takes one by surprise, melts one, but simultaneously fills a lack. When one is in love, one is never in love with another but oneself. The taste of love produces ambivalence; love is ambivalent, and for this reason,

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it cannot ever become a law. Law has been presented in positivist jurisprudence as producing certainty and consistency. The critical legal theorist Peter Fitzpatrick has argued when writing about postcolonial law and drawing upon the work of Boire that law’s failure to live up to its universalizing image results in an ambivalence within law (2004, 215–229). Nevertheless, there are two significant differences between Fitzpatrick’s understanding of law’s ambivalence and love’s ambivalence. Ambivalence is not the foremost constitutive element of law but rather a quality that makes itself manifest in law when law fails to deliver what it ideally claims to achieve, for example, universality and fairness. This ambivalence reveals that law can be repressive, arbitrary and enslaving. Love’s ambivalence is a constitutive element of love, which does not fix the subjects and thus enables them to be free. Eros in Carson’s account is inconsistent, uncertain and varied. Eros is poikilos (varied), and while there may be codes of practices between the pursuer and the pursued, as was the case of love between men in classical Greece, we cannot expect this to ever be a law, in the sense of a fixed law. In order for love to keep moving, to retain its force, it needs to remain open, or, at least, this is what Carson’s figure of love indicates. To what extent could critical legal discourses on love offer us an ambivalent, varied and uncertain concept of love? Do such discourses reduce love to a command, a contract and thus a law? To what extent, in other words, does critical legal discourse not reduce love to law? FIGURE TWO: LAW AND LOVE The Critical Legal Studies movement in the United Kingdom entails multiple facets and direction.6 Nevertheless, despite of its polyvalent history and nearconstant metamorphoses, it has remained continually observant of critical act of exposing the limits of law and (legal) justice, and, in conjunction, it has sustained a fertile opening of legal study to many other fields, such as literature, politics, philosophy, ethics, feminism, queer theory, critical race theory, postcolonial theory, psychoanalysis, science and history. This opening of law to other fields aimed, as Goodrich indicates, at challenging ‘the narrowness of the substantive dogmatics of the doctrinal tradition of scholarship as well as the “inadequacy” of juridical elaborations’ (1992, 196). Indeed, the impact of Critical Legal Studies was anticipated, ‘whether theoretical or substantive’, to be noticed by ‘educational and scholarly moments or institutions of the legal profession’ (ibid., 197). It is within this vein that critical legal scholarship brought into its discussion of law the concept of love.7 Love as an object of study within law was meant to shed light to the limits of institutional law and doctrine, exposing the injustices that come about when law ignores



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the domain of love in its judgements. More generally, it aimed at taking the intimate sphere into consideration within legal scholarship as such. Goodrich sums up this project aptly when he writes that the taking on board of love within critical legal studies ‘aspires to reopen questions of jurisdiction and of the plurality of laws, interior and exterior, past and future, imagined and real’ (Goodrich 1996, 4). Hence, I shall engage with one of the most melodious troubadours of love in critical legal studies, Peter Goodrich. Goodrich has, indeed, provided us with a sustained account of the relationship between law and love. Nevertheless, I argue that his engagement with love ends up capitulating love to nomos, to law, and loses the ambivalence which is essential to keeping love unfixed, as well as to the exposure of law’s limitations. Let’s see how the figure of love is portrayed in Goodrich’s writings. In Law in the Courts of Love, Goodrich tells the story of the jurisprudence (decisions) of the High Court of Love in Paris (established on Valentine’s Day 1400) (ibid., 1). The High Court of Love was a court made of women judges: ‘The High Court of Love was to have jurisdiction to determine the rules of love and to hear disputes between lovers. It was also, as a court of last instance, to adjudicate appeals from decision in first instance courts of love’ (ibid.). The High Court of Love was organized in a non-hierarchical way, and ‘the justice of love was an art of singular and heterogeneous decisions on disputes ranging from violence between lovers to amorous defamation, from breach of erotic confidences to release from unfair contracts of love’ (ibid.). It is important to note that Goodrich presents us with a ‘minor jurisprudence . . . or [a] form of legal knowledge that escape[s] the phantom of a sovereign and unitary law’ (ibid., 4). As Goodrich insists, a minor legal literature does not deface the claim that there is only one law or a ‘universal jurisprudence’ (ibid.). While, indeed. this may be a ‘minor jurisprudence’, wherein the decisions of the Court are singular, responding to the particular situation before them, and while the Court was unusually constituted by women who were selected on the basis of the poems they read out (ibid., 1), the logic of the decisions was stepped in the laws of contract and not necessarily an ethics of, for example, sexual difference.8 While the content of adjudication may be different from decision to decision, what we witness in such decisions are not figurations of love but a love subjugated to law. How is this played out in Judgment xvii of the Court of the Countess of Champagne? In this case a man was pursuing a woman who already had a lover. The woman did not completely fend the advances of the man but instead told him that ‘if she were ever to be deprived of, or more literally disappointed or frustrated by her present love . . . then she promises that she would undoubtedly take the suitor as her lover’ (Goodrich 1996, 29). Shortly after she made her promise to the suitor, the woman marries her lover ‘and

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the suitor demands that she keep her word’ (ibid.). As Goodrich informs us, perhaps unsurprisingly: The woman denies this claim on the ground that she has not lost her lover. The dispute is presented to the Court of Queen Eleanor of France where it is decided in favour of the suitor. The ostensible ground of the decision is a precedent judgment delivered by the Court of the Countess of Champagne, a court composed of some thirty women who collectively debated the distinct principles of love and marriage. In the precedent decision, handed down on the 1 May 1174, the Court of the Countess of Champagne had stated that love and marriage were mutually exclusive: ‘Lover’s give all they have to each other freely, and without any consideration of necessity, whereas married partners are forced to comply with each other’s desires as an obligation, and under no circumstances can they refuse each other’. Principally on that ground, the Court found that the promise of love should be kept for the simple reason that when her lover became her husband, the woman lost her lover, and thus fulfilled the condition of her promise. (Ibid.)

At first glance, it may appear that this decision pays homage to Eros; it recognizes after all that lovers give everything to each other, but upon a second glance we can notice that what this decision actually does is precisely the opposite. Instead of celebrating the ambivalence of Eros – recall Carson’s account of love, that is, love as the movement that takes us by surprise and which is ambivalent, or ‘sweetbitter’ – we observe the movement of love (the woman in question marrying her lover) as subjugated to the logic of law. Consider the decision once more: at no point in the decision do we have an account of the woman’s desire. We just have a judgement that reinforces what the law does, rendering decisions based on the application of certain categories: lover becomes husband, therefore no longer lover. The woman, here, is forced to take the suitor as her lover despite her desire. The courts could have equally decided that given the fact that love is ambivalent, or given the fact that love is always in movement, the new position as a wife/lover (a position that it seems the woman presented) frees the woman from her promise. After all, as Critchley reminds us, love is neither a ‘contractual obligation’ nor ‘a command’ (2015, 31). What we observe in this minor jurisprudence is, then, law’s persistent and universal desire to adjudicate over every part of life, to reinforce its sovereignty as an arbitrator of grievances and, in doing so, to remain blind to its inability to relate to the parties in dispute or in court; and, more so, even in the case of a minor jurisprudence, law is concerned only with the survival of the form of law, in this case, that of contract. The movement towards the other, whether we put our faith in love or in law, ever appears to be a movement of self-love rather than a movement towards the other. Goodrich’s account of love ultimately arrests love’s



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movement to law. Is there ever a possibility for love? Is there a possibility for a movement of love, where ambivalence can be retained and where another shall not be reduced to the same, to law? In turning to the biographical experience of love by the anarchist Goldman, we may perhaps glimpse that this can become possible when ‘love’ is experienced as a movement that confronts and questions the ‘ego’ or the ‘I’. FIGURE THREE: LOVE AND ANARCHISM During 1907–1908 the United States was going through a recession (Goldman 1970, 413). A large part of the population was unemployed, living under terrible conditions and starving (ibid.). Attempts made by individuals or groups to hold public gatherings to consider ways to support each other encountered interruptions and interference by the police (ibid.) or were simply banned (ibid., 414). Nevertheless, gatherings did take place. Goldman was invited to speak in Chicago on 6 March 1908 as to the recession and anarchism. The authorities banned her from public speaking anywhere in Chicago because on 2 March 1908 a young Russian Jewish immigrant, Lazarus Averbuch, knifed Chicago’s chief of police, who answered at the name of Shippy, as well as shot Shippy’s son and bodyguard (Falk 2005, 280). Goldman insisted on going ahead with her talk. As venues were banned from hosting Goldman, her anarchist friends in collaboration with Ben Reitman – a charismatic doctor who was at the forefront of taking care of the homeless itinerant workers and prostitutes in Chicago, as well as leading the recession demonstrations – took it upon himself to find a place for Goldman to speak. Thus, Reitman arranged for Goldman to give a public lecture at the Workingmen’s Hall on 17 March 1908, without however openly publicizing her as the speaker. The event was densely attended, and among the audience there were the press and the police. This came as a surprise to Goldman and her comrades, since nobody had notified either of them. As soon as Goldman arrived on stage, the police dragged her down. They also dragged and removed Reitman, who peculiarly neither made eye contact nor exchanged any words with Goldman. This peculiar distance that Goldman sensed in Reitman’s posture unnerved her. They had earlier become amorously involved and, as she writes, this incident ‘affected [her] disagreeably’ (1970, 418). When Reitman failed to turn up to the office where anarchists had gathered to discuss how the press found out about the event, suspicion did fall on Reitman. Goldman, however, suggested that ‘he must have been detained by the police’ (ibid.). Reitman returned the next day to explain that he could not come to the meeting for his own reasons, that he was not in fact arrested by the police and that

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he had not informed the press (ibid., 418–419). She was reassured initially by Reitman’s response, but later on during her stay in Chicago, and while they were out drinking at Yampolsky’s, she noticed that Reitman was being friendly with the police. Goldman was taken by surprise: Ben Reitman, whose embrace has filled me with mad delight, chumming with detectives! The hands that had burned my flesh were now close to the brute who had almost strangled Louis Lingg, near the man who had threatened and bullied me in 1901. Ben Reitman, the champion of freedom, hob-nobbing with the very sort of people who had killed poor Overburch. How could we have anything to do with them? The terrible thought struck me that he might be a detective. . . . Was it Reitman who had informed them? Was it possible? And I had given myself to that man! I, who had been fighting the enemies of freedom and justice for nineteen years, had exulted in the arms of a man who was one of them. (ibid., 421)

From the start, their 10-year love affair challenged Goldman. Reitman’s coming into her life, becoming her lover, had challenged her senses and fulfilled her fantasies and needs, as well as made her question the soundness of her judgement. Perhaps more importantly though, her encounter with Reitman made her question to what extent she could sustain an anarchist life as such, since his existence, the way that he related to the world and to her, brought to the surface emotions such as jealousy or possessiveness, which led her to question whether she could continue pursuing the anarchist cause with integrity. Despite her initial suspicion of Reitman, she continued her affair with him and also appointed him as her manager. Reitman, incidentally, was quite an effective manager. He organized and secured spaces for Goldman’s political campaigns, as well as managed the distribution of Mother Earth, Goldman’s highly successful magazine. While Goldman had experienced disappointment throughout her activist career and personal betrayals by fellow anarchists, as well as witnessing betrayal by anarchists of other activists, these never diverted her from her political activities, nor did they lead her to question anarchism as an ideology that could bring about personal, social, spiritual and economic emancipation. The only encounter that constantly made her question both herself and anarchism was her personal amorous relationship with Reitman. Reitman had left her ‘with a storm in [her] heart’ (ibid.) that enabled her to put aside any concerns, while accepting that they were different and so spent 10 years with him. The passion of love, the movement of love in this sense, raises a question that allows ambivalence to stay put, but at the same time it carries another question: ‘Why should I not be able to inspire Ben to carry him with me to the world of my social ideals?’ (ibid., 422). This enables Goldman to sustain Ben into her life despite their differences, alas hoping that they will



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become more politically aligned over time. The question becomes the prop that keeps the movement of love going. A couple of years into their relationship, and while Goldman endured the awareness of Reitman’s promiscuity, she was led to raise yet another question in relation to Reitman. Reitman upon reading The Power of a Lie (originally published in 1903; while in English only a few years later, in 1909 by the Norwegian writer and dramatist Johan Boyer) was so affected that he decided to confess the lies that he had told Goldman. He confessed in writing that while he did not leak the meeting to the police back in Chicago, he had leaked it ‘confidentially’ to a reporter who must have in turn leaked it to the police; he never returned to meet her and the other activists after the disruption of the Chicago event, because he was with another woman; he was borrowing money from Mother Earth to pay for his mother’s ‘bills’, and at every lecture of hers, he managed to seduce yet another woman (ibid., 439). When she read his letter, Goldman’s whole being was placed in turbulence. Reitman, of course, was asking for forgiveness, confessing his love and expressing his wish to be with her (ibid.), but his repentance and the reassurance of his love and devotion to her did not stop her from feeling as if she had been thrown into the gutter: ‘I had the feeling of sinking into a swamp. In desperation I clutched the table in front of me and tried to cry out, but no sound came from my throat. I sat numb, the terrible letter seeming to creep over me, word by word, and drawing into its slime’ (ibid., 440). Goldman is unable to orient herself, or scream – experiencing not just a challenge from the outside but its repressive force manifesting itself as an incapability to express the very primal sound, the echo of natality,9 of creativity. Unable to scream, her voice was disabled from orienting herself to an opening, so to find a way to herself; numb-stripped from the power to feel any sensations, the words in Reitman’s letter closed on her, dragging her into what she identified had now become his elemental quality, that of ‘slime’, something slippery and elusive. And then she was interrupted: ‘I was brought back to myself by Sasha’s arrival. . . . I broke out in uncontrollable laughter’ (ibid., 1970, 440). The appearance of a familiar face, her good friend and once lover, Alexander Berkman, returned Goldman to herself, to a way out: ‘I must get out on the street or I shall choke’ (ibid.). So she went out and walked and walked for hours to ‘breath’, to find a pathway to her heart. Days passed by and she was still preoccupied with the letter. Trying to find a way out, she repeats to herself over and over again that Reitman is of a different world, with different ideals, but she does turn the repetition into a question, a question whereby we see her putting to trial, the very core of anarchism, the creation of new values: ‘What right have I to condemn, I who claim to teach new values of life?’ (ibid., 440). She returns to her own scenes of sexual encounters looking for answers there. She observes her own promiscuity.

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She sees, in fact, a difference between her own promiscuity and that of Reitman’s. Her sexual encounters are accompanied by love, his by his inability to control himself, by his ‘nature’ (ibid.). She remained indecisive until another question made its appearance, a question which however would not provide her with a guarantee but that would enable her to make a decision, or at least to find herself, to find a pathway to her heart, and back to Reitman: ‘ “Is my love for Ben so weak that I shall not be able to pay the price his freedom of action demands?” “There was no answer” ’ (ibid., 421). There was no answer but there was an answer: anarchism, having brought her to the limits of her way of life – she had to somehow trust herself in the very way she embodied anarchism – her love, in order to find her way back to love, his love, a way that would enable her to love and to not enslave Reitman’s ‘nature’. Indeed, we then find out that she asks Berkman to take her to Reitman and she forgives him. This questioning reveals that anarchism as a way of life is not free from turbulence. Anarchism as a way of life requires, for its very revival, a questioning that, in turn, triggers a series of affective sensual disturbances, disturbances that challenge the supposed ideal, a sensational movement that, yet, constantly renews the ideal. By allowing the ambivalence of love to disturb her and her ideals more generally, by allowing constant questioning to remain present throughout her relationship with Reitman, she is able to question not only Reitman but anarchism itself and to see its limits. Anarchism may suggest that a fairer world may be achieved through the abolition of marriage and the practice of free love, but she learns that possessiveness and jealousy are not so easily disparaged. She learns from this encounter with love that the ideal of love that anarchism promotes is not so ideal after all, yet that is precisely what breathes new life into anarchism. AFTERWORD I have indicated that there is a possible way of talking about love by focusing on its movement rather than attempting to define it. Such a reading of love can enable one to see not only that love resides in ambivalence – as Carson suggests – but that it can, in fact, enable us to love and be in the world in multiple ways, for love moves one away from law. Love’s movement reveals to us the never-ending enigma as to who we are and are constantly becoming. For critical legal scholars, as I have noted, the reference to love confines love in the framework of law anew. The ambivalence of love, which Carson writes about, gets, in this manner, confined in a court where the ambivalence



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that love creates recalls, in turn, the case of the woman with the two lovers that is to be decided or framed in a decision. Law’s function is to stop the ambivalent movement of love. Goodrich frames love or even frames law in such a particular way that the movement and unpredictability, or ambivalence that Carson introduced, vanish. When it comes then to anarchism and love, I hope to have shown, through Goldman’s anecdotal experience of love, that her falling in love with Reitman moved her but also led her to question her political beliefs and, ultimately, an anarchism which crucially proposes a life lived without ‘oughts’. In doing so, I hope to have indicated that Goldman shows both the limits and the possibilities that love can foster. She shows the ambivalence of love, but at the same time she exposes the startling difference between the subject in love, the anarchist subject and the subject of law. The anarchist subject uses the turbulence of love to question its self. Love becomes a residence in this turbulence – an ethos of living well with ambivalence. NOTES 1 I am specifically referring to the commercialization of love through various objects such as cards, gifts that one witnesses on Valentine’s Day; on this, see Hochschild (2003). 2 Despite the fact that love may be something that we may all experience, the experience of love is, for each one of us, unique, and it cannot be reduced to a single description. 3 Barthes suggests, and I am following his suggestion here, that we should understand the figure not ‘in its rhetorical sense, but rather in its gymnastic or choreographic acceptation; . . . the body’s gesture caught in action and not contemplated in repose’ (2002, 3–4). 4 Anarchism, in general, offered a critique of institutional love (marriage) and promoted the idea of ‘free love’; see, for example, Goldman’s ‘Marriage and Love’, in Anarchism and Other Essays, 227. Here I am focusing on Goldman’s lived experience of love and how she used her experience as a means to critique anarchism. For more on Goldman’s philosophy emerging from a synthesis of embodied lived experience and Nietzschean philosophy, see Rossdale (2015, 116–133). 5 See Deleuze and Guattari (2005, 232–309). The term ‘becoming imperceptible’ refers to the dismantling of the subject, of agency, intentionality and the individual ego. As we have seen in Sappho’s reference to love as melting one’s limbs, we could say in this sense that one experiences the melting of the subject. For more on this, see Braidotti (2006, 133–159). 6 For a useful trajectory of the movement, see Murphy (1999, 237–278), Goodrich (1992, 195–236) and, generally, Stone, Wall and Douzinas (2012). 7 See Meyer (2006, 431–447), Khan (2000), Gearey (2004), Sarat (2004), Goodrich (1996) and Aristodemou (2014).

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8 Here I am referring to Irigaray’s influential book The Ethics of Sexual Difference and the idea that Western culture (including legal culture) has not taken into account that women are sexually different from men and, thus, continues to treat women unjustly. 9 Heidegger (2004, 58–60).

BIBLIOGRAPHY Agamben, Giorgio. 1999. ‘Poiesis and Praxis’. In Id. The Man without Content. Translated by Georgia Albert. Stanford, CA: Stanford University Press. Aristodemou, Maria. 2014. Law, Psychoanalysis, Society: Taking the Unconscious Seriously. London: Routledge. Badiou, Alain, and Nicolas Truong. 2012. In Praise of Love. Translated by Peter Bush. London: Serpent’s Tail. Barthes, Roland. 2002. A Lover’s Discourse: Fragments. Translated by Richard Howard. London: Vintage Book. Braidotti, Rosi. 2006. ‘The Ethics of Becoming Imperceptible’. In Deleuze and Philosophy, edited by Constantine Bountas. Edinburgh: Edinburgh University Press, 133–159. Carson, Anne. 1998. Eros the Bittersweet. Champaign, IL, and London: Dalkey Archive Press. Critchley, Simon. 2015. Notes on Suicide. London: Fitzcarraldo Editions. Deleuze, Gilles, and Felix Guattari. 2005. A Thousand Plateaus: Capitalism and Schizophrenia. Translated by Brian Massumi. Minneapolis and London: University of Minnesota Press. Falk, Candace. 2005. Love, Anarchy and Emma Goldman: A Biography. New Brunswick, NJ, and London: Rutgers University Press. Fitzpatrick, Peter. 2004. ‘Juris-Fiction: Literature and the Law of the Law’. ARIEL: A Review of International English Literature 35 (1–2): 215–229. Gearey, Adam. 2004. ‘Love and Death in American Jurisprudence: Myths, Aesthetics, Law’. In Studies in Law, Politics and Society, edited by Austin Sarat. Bingley, UK: Emerald Group Publishing Limited, 3–23. Goldman, Emma. 1969. ‘Marriage and Love’. In Anarchism and Other Essays. Id. New York: Dover Publications, 227–239. Goldman, Emma. 1970. Living My Life: Volume One. New York: Dover Publications. Goodrich, Peter. 1992. ‘Critical Legal Studies in England: Prospective Histories’. Oxford Journal of Legal Studies 12 (2): 195–236. Goodrich, Peter. 1996. Law in the Courts of Love: Literature and Other Minor Jurisprudence. London and New York: Routledge. Heidegger, Martin. 2004. What Is Called Thinking? Translated by J. Glenn Gray. New York: Harper Perennial. Hochschild, Russel Arlie. 2003. The Commercialization of Intimate Life: Notes from Home and Work. Berkeley, Los Angeles and London: University of California Press. Irigaray, Luce. 1993. The Ethics of Sexual Difference. Translated by Carolyn Burke and Gillian G. Gill. Ithaca, NY: Cornell University Press.



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Khan, W. Paul. 2000. Law and Love: The Trials of King Lear. New Haven, CT, and London: Yale University Press. Meyer, Ross Linda. 2006. ‘Law like Love?’ Law and Literature 18 (3): 431–447. Murphy, Tim. 1999. ‘Brit Crits: Subversion and Submission, Past, Present and Future’. Law and Critique 10 (3): 237–278. Plato. 1925. Symposium. Edited by Geoffrey Henderson. Translated by Walter Rangeley Maitland Lamb. Cambridge, MA, and London, England: Harvard University Press (Loeb). Rossdale, Chris. 2015. ‘Dancing Ourselves to Death: The Subject of Emma Goldman’s Nietzschean Anarchism’. Globalisations 12 (1): 116–133. Sarat, Austin, ed. 2004. Studies in Law, Politics and Society. Bingley, UK: Emerald Group Publishing Limited, 3–23. Soble, Alan. 1989. Eros, Agape and Philia: Readings in the Philosophy of Love. St. Paul, MN: Paragon House. Stone, Matthew, Illan Rua Wall and Costas Douzinas, eds. 2012. New Critical Legal Thinking: Law and the Political. London: Routledge.

Chapter 11

Law as Myth – On the Young Walter Benjamin Emanuele Castrucci

THE ‘LIBERAL’ CONCEPT OF LANGUAGE Die eigentliche Sphäre der Verständigung, die Sprache. (‘The proper sphere of “understanding”, language’.) (Benjamin 1996a, 245)

In all likelihood, an impression may ultimately arise from the re-reading of the writings of Walter Benjamin’s philosophy of history:1 it concerns the uncertain centrality of the mythical element in historical immanence and – even more – the particular theological-political use that is made of myth in history. All this is not without relevance for the philosophy of law and political theory. It is possible to note apropos of this how the ultimately rationalistic2 interest, which manifested itself in German culture immediately after World War I in the ‘mythical’ aspects of the theory of power (Macht), often led to a perspective that emphasized the traits of Gewalt, resulting in an approach to the problem of ‘power’ that, in terms of political doctrine, did not hesitate to label itself as ‘anti-liberal’. Underlying this approach, held in common during the Weimar years by disparate theoretical positions (it suffices to recall, on the one hand, the utopian current that Ernst Bloch and Walter Benjamin belonged to, and, on the other, Carl Schmitt’s realist theory of the ‘political’), I think we can acknowledge the awareness and criticism of an old liberal deformation, according to which language is able to talk about everything. Language would neutralize in toto the space of violence, transgression and the possibility of an ‘absolutely other/absolutely hostile’ by functionally using practical categories: exchange, informative and nonviolent conversation. The essence of the ‘unspeakable because not recomposable’ would 183

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already be cancelled as a possibility: everything could be ‘spoken of’ and, in so being spoken, everything could be mediated. The matter of controversy of the young Benjamin presents, at least in this respect, a number of analogies with what is typical of Schmitt: Benjamin’s will to liberation is the Dezisionismus corresponding and opposed to the will to rationalize the ambiguous concept of Gewalt (and Herrschaft) which is Schmitt’s.3 It must therefore be emphasized that the difference in the subjective intentions expressed by these cultural threads of common ancestry in Weimar Germany, already defined very roughly as ‘anti-liberal’, is accompanied by an objective convergence in identifying the problem, through a lively inquiry – that the rationalistic sense pervades the internal structure of their philosophical-political argumentation – as to the ultimate meaning of the ambiguous ‘irrational’ phenomenon of myth.4 For our purposes, we will have to hold firm from the very start to the belief that the young Benjamin’s thought should in no way be separated from the spiritual and ideological context that distinguished the Weimar environment of the 1920s – an environment that recognized within itself, as its never altogether conceptually resolved core problem, the persistence in the structure of the ‘political’ of the last repercussion of a theologia politica perennis. ‘CRITIQUE OF VIOLENCE’ His ‘Critique of Violence’ – an essay that already in its title echoes the themes of Georges Sorel5 – is perhaps among Benjamin’s early works, the one that, both for its subject and its particular style of discussion, realizes in a more immediate way the German political atmosphere attracted by the myth of a ‘redemptive revolution’. The political events of the period are, in other words, all implicit in the discourse that is developed in the essay. This is so even if the author maintains his analysis at a high level of abstraction, aiming more at an in-depth speculation on the philosophical connections among the concepts examined, than at a historical description of the novelty of the political-constitutional facts on which his critical discourse is based. So it is significant that the essay opens on a still wholly dehistoricized concept of violence – understood as a means towards just or unjust ends and in its relationship with the spheres of law and justice (Benjamin 1996a, 236–243).6 Benjamin introduces, in other words, only in a marginal way the historiographically more meaningful elements, in the light of which his discourse could be quite differently reinterpreted (e.g., the right to strike, the evolution/ involution of representative power, the state). These appear, when they arise in the discussion, almost dematerialized, and in any case employed to confirm theses already established metaphysically. In short, his approach from the



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very start makes it clear how his focus on the soteriological end is destined to intertwine with his interest in the concrete-historical aspect of the political concepts taken into examination, while frequently prevailing over them. But leaving aside, for now, any further critical point of more general import, it is essential to follow the main features of the discourse undertaken by this ‘minor’ Benjamin. Benjamin’s problem initially regards the theoretical foundation of his critique, which he establishes by first conceptually situating violence in a means-end relationship, defined as ‘the most elementary relationship within any legal system’ (Benjamin 1996a, 236). His quest for the decisive criterion for the critique of violence starts from the observation that it belongs only to the realm of means, and not to that of ends. And here natural law, which questions whether violence is a means towards just or unjust ends, already betrays Benjamin’s critical insufficiency, since it does not pose any problem in the use – in fact, deemed ‘physiologically’ natural [Nach seiner Anschauung, . . . ist Gewalt ein Naturprodukt, gleichsam ein Rohstoff] – of violent means, provided that they are directed towards just ends (think, beyond Benjamin’s example of the ‘Terror in the French Revolution’, of the theories of the monarchomachs regarding tyrannicide in early modernity); and forcibly avoids any critique of violence in terms of the concept itself, in its ‘essential’ sense, a critique that is exerted solely at the level of means, neglecting as ‘inessential’ the question of the rightness of the ends to which these means refer. But, like natural law, not even (so much the less) positive law succeeds in establishing a strong critical perspective, characterized as it is by its focus on ‘historically developed’ power [historische Gewordenheit] or on its historical source of legitimation (the state), taken as the exclusive criterion for assessing violence. ‘Just as natural law can judge any existing law only in the critique of its ends, so positive law can judge the development of any law only in the critique of its means’ (Benjamin 1996a, 237). In any case, for Benjamin, both schools meet in the common basic dogma: just ends can be attained by justified means, justified means used for just ends. Natural law attempts, by the justness of ends, to ‘justify’ [rechtfertigen] the means, positive law to ‘guarantee’ [garantieren] the justness of the ends through the justification of the means. (Ibid.)

Given the terms so far observed, namely, a simultaneous separationintegration between rechtfertigen-Gerechtigkeit (to justify-Justice) and garantieren-Rechtsmäßigkeit (to guarantee-Legality), for Benjamin there can be no way out of the deadlock in which his quest for a fundamental criterion for the critique of violence inevitably ends up falling, unless one abandons the

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field of the philosophy of law as such – whether positive or natural, it does not matter – and penetrates the still poorly defined borders of a philosophy of history. Benjamin’s discourse on violence deepens only when he focuses on the problem of the relationship between the state’s power to legitimate force (so consider Max Weber 1978) on the one hand and juridically considered subjectivity on the other. His analysis of the limits placed ‘legally’ on individual violence (‘that present-day law is seeking in all areas of activity to deny the individual’ [Benjamin 1996a, 239]) leads Benjamin to observe how force, when it is not in possession of law as it exists at any given moment, represents a threat not because of the ends that it pursues but because of its mere existence outside the law [durch ihr bloßes Dasein außerhalb des Rechts]. Where the salient data are (a) the statement in itself delegitimizing inherent in potentially violent individual interest and (b) the consequent need for the legal system to know how to apportion – by fittingly alternating limitations and expansions, repression and recognition – the range of individual rights, these being understood as portions of transpositions into the reassuring sphere of the ‘legality’ of so-called natural ends [Naturzwecke], of interests and needs – otherwise identifiable only negatively as conflicting entities – of the individual. Legalization contains within itself a radical neutralization of the violent exteriority inherent in the ‘natural order’ that resists such legalization: ‘It can be formulated as a general maxim of present-day European legislation that all the natural ends of individuals must collide with legal ends if pursued with a greater or lesser degree of violence’ (Benjamin 1996a, 238). Therefore, the significant reverse of the legal recognition of ‘natural ends’ lies in the regulation of violence, that is, of the way, which is typical of the law and the state, to consider ‘violence in the hands of a single person as a risk or a threat to subvert the legal system’ (ibid.). It must therefore be acknowledged that there is still a great deal of Sorel behind his notations on strike violence – rather, on the strike as a form of violent action – that runs through Benjamin’s early essay. Here, indeed, distinctions are still made, in the footsteps of the anarchism of the Réflexions, between ‘general political’ strike forms and ‘general proletarian’ strike forms, which Benjamin defines as ‘antithetical also in relation to violence’ (so ist die zweite als ein reines Mittel gewaltlos) (Benjamin 1996a, 246). Of course, the concept of ‘pure means’ is, in this context, very problematic. It seems in any case to disregard – in order to distance itself from any ruinously bloody reality – any possible ‘catastrophic consequences’ that may factually occur during their manifestation, since ‘the violence of an action can be judged as little by its effects [Wirkungen] as by its purpose [Zwecke], but only by the law of its means’ (ibid.). And in terms of means, the only action that is violent in its essence is that of a power which, by betraying justice,



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‘is either lawmaking or law-preserving’ [rechtsetzend oder rechtserhaltend] (Benjamin 1996a, 243), which means that it helps to restore and reinforce an intimately coercive legal situation. The anarchic-naïve component of the young Benjamin’s thought is enhanced in his critique of ‘the law of the police’ (Benjamin 1996a, 242 ff.), from which context, despite its pervasive emotional tension, there emerges a remarkable ability of speculative insight into what the debate within the Staatslehre of the 1920s had shown to be the aporias that liberal democratic thought inevitably develops in coming to grips with the problem of the ‘enforcement of law’ (Rechtsverwirklichung).7 The police, Benjamin observes, is violence for legal ends (it includes the right of disposition), but with the simultaneous authority to decide these ends within wide limits (it includes the right of decree). . . . In this authority the separation of law-making and law-preserving violence is suspended,  so that it cannot finally be denied that in absolute monarchy, in which legislative and executive power are united, violence is less devastating than in democracies, where its existence bears witness to the greatest conceivable degeneration of violence. (Benjamin 1996a, 243)

In any case, the young Benjamin’s critique – even in its utopianism – never loses itself in the moralistic disapproval of coercive reality which characterizes social relations but seeks to formulate more clearly its own philosophical concept of ‘pure means’, to the point of wondering openly: ‘In general, is any nonviolent resolution of conflict possible?’ (Benjamin 1996a, 244). Benjamin at once answers this question in a positive way: The relationships among private persons are full of examples of this. Nonviolent agreement is possible wherever a civilized outlook [die Kultur des Herzens] allows the use of unalloyed means of agreement [reine Mittel der Übereinkunft]. Legal and illegal means of every kind that are all the same violent may be confronted with nonviolent ones as unalloyed means. Courtesy, sympathy, peaceableness, trust and whatever else might here be mentioned are their subjective preconditions. . . . Its profoundest example is perhaps the conference [Unterredung], considered as a technique of civil agreement. . . . This makes clear that there is a sphere of human agreement that is nonviolent to the extent that it is wholly inaccessible to violence: the proper sphere of ‘understanding’, language. (Ibid.)

But certainly – Benjamin acknowledges – if at one time, in a more primitive stage of the expansion of social communication and, complementarily, at an archaic level of the development of law, this ‘area of language’ could be thought of as a space of ‘pure means’ – freed of violence and almost cut off from the vast reality of conflict – subsequently the legal sanction has also

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penetrated into this sphere, dissolving it from the within. Proof of this, Benjamin goes on to say, lies in the transition from the impunity of lies (or from the legal irrelevance, typical of archaic systems, of the act by which language disregards its social function of the communication of ‘truth’) to the punishability of deceit (or its subsumption in the area of legal sanction of the effects of the ‘false’ use of nonviolent means). Moreover, legal communication, considered as a technique and as social mediation, cannot but presuppose a mechanism for the protection of the common recognition of its rules (and, at its root, a mechanism of political legitimation of its rules’ production). For Benjamin, this mechanism can only consist at bottom in absolute Gewalt. The most radical Frankfurt critique of the 1930s is already largely recognizable behind these anticipatory pages of the young Benjamin. It even seems that Benjamin poses himself here as a link between early 20th-century anarchist thought – with its inevitable referent in Sorel – and subsequent trends of negative thought which take shape in the lucid insights of the early Max Horkheimer (2002), all intent on grasping the ultimate limits of the existing political order, without halting the investigation before the theory has covered the entire development of its immanent critique. And perhaps in the latter case – that of the ‘immanence’ of the critique – is to be found one of the most obvious reasons of the difference between the thinking of the young Benjamin and that of the young Horkheimer. If Horkheimer is the intellectual who comes to place himself in the perspective of surpassing the bourgeois liberal system by using – from within the same liberal horizon – concepts that soon display their explosive reach, in Benjamin critical insights similar to Horkheimer’s are considered instead as projections of absolute transcendence, of a messianic light with respect to which historical development and the dialectic of immanence maintain a breaching, ‘exceptional’ instance of reception. In this light, theology and materialism would explicitly confirm, in Benjamin’s subsequent thought, their unlikely alliance. LAW AS MYTH Now, in spite of all this – going back to the initial questions – I believe that Benjamin’s Sorelian component ought not to be overestimated. If in his Critique of Violence, despite its vigorous polemic against politiciens, a Sorelian interpretation seems highly restrictive, this interpretation seems even groundless with regard to Benjamin’s immediately subsequent work. One theoretical root lies in the very different theoretical considerations against the ‘constructive ambiguity’ of law at the conclusion of his 1931 essay on



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Karl Kraus.8 In this essay, Kraus, the combative publicist who from the columns of Die Fackel never tired of striking out with his white-hot articles against the literary fashions of early 20th-century Vienna, stands outside of time (and this in a particular metaphorical sense, namely, anachronistically) as a destructive, purifying force, giving Benjamin the opportunity to subject to merciless criticism the ideology of the flatly and positivistically creative ‘average European’: For far too long, the accent was placed on creativity. People are only creative to the extent that they avoid tasks and supervision. Work as a supervised task – its model being political and technical work – is attended by dirt and detritus, intrudes destructively into matter, is abrasive to what is already achieved and critical toward its conditions, and is in all this opposite to the work of the dilettante luxuriating in creation. His work is innocent and pure, consuming and purifying masterliness. And therefore the monster stands among us as the messenger of a more real humanism. He is the conqueror of the empty phrase. He feels solidarity not with the slender pine but with the plane that devours it, not with the precious ore but with the blast furnace that purifies it. The average European has not succeeded in uniting his life with technology, because he has clung to the fetish of creative existence. (Benjamin 2005a, 456)

Quite something else is the theoretical background, which Benjamin refers to in this Kraus-like message of his, of purifying destruction: he now forms a web of allusions that refers beyond his Sorel-like vagueness of the Critique of Violence: One must have followed Loos in his struggle with the dragon ‘ornament,’ heard the stellar Esperanto of Scherbert’s creation, or seen Klee’s Angelus Novus (who preferred to free men by taking from them, rather than make them happy by giving to them) to understand a humanity that proves itself by destruction. (Benjamin 2005a, 456)

Yet, precisely here a thematic element continues to unite the two essays – A Critique and Karl Kraus – by establishing between them a logical relationship that somehow bridges the decade between them. It is the element of ‘destroying to purify’, the possibility of recognizing in Kraus’s tragically helpless voice the imitation of that of the Angelus Novus,9 as far from any historicist myth of continuity and progress as it is close to the liberating use of violence, to the justice of the Old Testament God. Divine violence posits itself more than ever, in the Benjamin of the 1920s (and therefore already two decades before the Theses on the Philosophy of History) as the last appearance of the will of the terrible Old Testament God – as appearing in history, through the conflicts of the ‘political’, but resolutely outside of the ‘juridical’ and its forms, of the signs of a toto coelo external will. External:

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because the divine will destroy any law – any ‘internal’ coercive one – in carrying out his own justice. Therein lies his rule als waltende Gewalt in the fact that he acts in a state of permanent extralegal exception, while the law is in essence rule, issuing from a mythical incumbent principle, the consequence of a separate and infinitely powerful inimical fate. The carrying out of divine justice – symbolized by God’s judgement on the tribe of Korah10 – occurs outside of the law and rule, and not as an extreme case of the rule. More than a carrying out, it is a manifestation: his appearance, far from constructing any sort of system, nullifies any system established by mythical violence.11 Let us consider in this regard the concluding part of the essay: Once again all the eternal forms are open to pure divine violence, which myth bastardized with law. It may manifest itself in a true war exactly as in the divine judgment of the multitude on a criminal. But all mythical, lawmaking violence, which we may call ‘executive’ [schaltende], is pernicious. Pernicious, too, is the law-preserving, ‘administrative’ violence that serves it. Divine violence, which is the sign and seal but never the means of sacred execution, may be called ‘sovereign’ violence [waltende]. (Benjamin 1996a, 252)

The sources of legitimation (‘law’ versus ‘divine judgement’; ‘mythical violence’ versus ‘divine violence’) oppose each other at this point. In whomever recognizes the supreme authority of divine violence – a violence ‘that governs’ – there is, implied, the desire to delegitimize any enactment of the legal system, any reality that envisions law as myth. Divine violence – the external manifestation of the terrible presence of God – thus leads necessarily to the concept of revolution against law. No interaction is allowed between the two sources: concepts not clearly referring to either of these two grounds of legitimacy would be nothing but contradictory. Where the young Benjamin emphasizes the fight against law as the supreme realization of divine justice, tradition rejoins revolutionary utopia, thus dovetailing directly into the vein of the nihilistic culture of the early 20th century, to whose deep ideal charisma the young Benjamin is attuned. FATE, GUILT AND LAW. THE ‘THEOLOGICO-POLITICAL FRAGMENT’ AND THE SYMBOL OF KAFKA The nature of Benjamin’s nihilism would still be insufficiently identified if another fundamental concept of the Critique of Violence remained unprobed: the concept of fate. ‘Fate’ (Schicksal), which is always ‘at the basis of legal power’ (Benjamin 1996a, 247), has its roots in a mythical time, in a time in which the Hebrew universe revealed its true signs: the separateness



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(Trennung), the never reconciled estrangement of God and the very image of God as a place of absolutely objective relationships that bear down mightily on man. Bare natural life, thus, reveals itself as ‘an eternally mute bearer of guilt’ (Benjamin 1996a, 248). The myth of Niobe is witness of this in the classical mythological universe, and this is so even if the living – conceptually distinct from ‘bare life’ – is innocent. Guilt falls objectively on mankind, on the living innocent, and – if blood is the symbol of bare life – liberation from this guilt has to pass through blood purification (ibid.), capable of demanding recourse to the violence of man against man, and even killing, which is still sometimes legitimate, since the fifth commandment is not a criterion of judgement [Maßstab des Urteils] but a standard of action [Richtschnur des Handelns] for the acting person or community, which must deal with it alone, and take, in extraordinary cases, the responsibility of disregarding it. The feeling of guilt and of fate seems here to lead back to Kafka’s The Trial, bearing in mind a famous quote by Hermann Cohen that Benjamin uses in his essay on Kafka,12 according to which ‘a knowledge which is inescapable’ is that which indicates how the very structure of fate must ‘originate and produce’ their own violation, their own deviation, which is just what, in other words, takes place ‘for the justice that proceeds against K’ (Benjamin 2005b). It is the mythic structure of the law that makes the sentence precede the crime, independently of the materialization of human guilt, but only after the terrible, paradoxical intervention – because seemingly free – of the law. The (necessarily inadvertent) violation of the unwritten law does not lead therefore to a penalty (Strafe) but to a punishment (Sühne). ‘But regardless of how cruelly it strikes the unwitting, its intervention is not, in terms of the law, a chance occurrence, but fate’ (ibid.). Neither separation nor guilt nor punishment is to be understood as a unique concept of the Jewish cosmos: their meaning is universal; in them the trace of Martin Heidegger’s ‘fugitive gods’ endures and emerges, a condition faithfully reflected in nature’s hostile, confused estrangement. But, in view of all this, how can it be called conceptually ‘fate’? Benjamin somewhere else13 gives acute indications (based on equally felicitous insights) on the relationship that links what is ‘destined’ to what is ‘historic’, comparable in many ways to what Heidegger says about the ontological nexus between Geschick and Geschichte.14 Thus, Benjamin writes: The laws of fate, unhappiness and guilt are defined by the law as criteria of the person. . . . Fate shows itself, in the view of life, as condemned, as having essentially first been condemned and then become guilty. . . . Law condemns not to punishment, but to guilt. Fate is the guilt context of the living [der Schuld­ zusammenhang des Lebendigen].15

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But if fate and guilt are inextricably linked in this manner to each other, no relationship can exist – precisely because of this inseparable connection – between fate and happiness: ‘beneath the heavy sphere of fate every happiness is guilt’, where the dominion is that of ‘a scale on which happiness and innocence are too light and soar aloft. This scale is the scale of the law’.16 Precisely against the ‘fate-guilt-law’ nexus man’s struggle for happiness asserts itself as the foundation and ultimate goal towards which the Ordnung des Profanen17 strives. The kingdom of God is certainly a result, in the etymological sense of the term (exitus, ex-eo), the final outcome (in Benjamin Ende, not Ziel) with respect to which the secular course of history posits itself as something totally unrelated, radically different. Nonetheless, this ‘secular’ quest for happiness, despite its estrangement from the flow of messianism, far from contradicting it, may instead facilitate the messianic realization. In happiness, in fact, the layman aspires ‘to his own decline, but it is only in happiness that he can find his own decline’ (Benjamin 1986, 312). Can it perhaps be said that the ‘secular’ struggle for happiness is the condition of the kingdom of God: in this sense, the epigraph from G. W. F. Hegel placed by Benjamin in his fourth thesis of the philosophy of history can be reread: ‘Seek for food and clothing first; then shall the kingdom of God be granted to you’ (Benjamin 2006, 390). Mankind’s immediate material quest for happiness and satisfaction is, in other words, a celebration of placated need and, simultaneously, a recognition that behind it ‘is a fight for the crude and material things, without which no refined and spiritual things could exist’ (ibid.). But the struggle for happiness is also a struggle for the reappropriation of the ‘past’, a topic that returns insistently in the essay ‘On the Concept of History’, in which the discontinuity of history – the exception that disrupts the possibility of a form – always refers to something beyond, against all progressive-historicist assumptions. Here is the core of Benjamin’s philosophical utopia in his polemic directed entirely against the transcendental Historismus embraced by German Social Democracy against the concept by which time is presented as a ‘straight and empty’ path, without qualitative leaps and unrepeatable emergencies. Such a concept of temporality as always equal to itself has perhaps its most typical manifestations in Kantian juridicism, where the world of norms is conceived as a network of forms capable of firmly sealing social being (Sein) by placing oneself on a transcendental plane in relation to it (duty, Sollen). In this universe of formal relationships there would no longer be any room for leaps, discontinuities – to wit, for ‘exceptions’, ‘states of emergency’ or ‘necessities’: all concepts of legal-philosophical origin, which appear as the devil to cast away and for which there is not even a language capable of representation. Such concepts, in fact, tend towards the outermost limits of



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knowledge, alluding to an ‘outside’ that still has repercussions on the events of historical existence, which in his ‘Theologico-Political Fragment’ Benjamin declares to be ‘secular’. In a formalist universe, the exception is madness: its signs must be allowed to fall into the void, muffled and neutralized in the infinite deafness of the historical continuum. Thus, the image that might be invoked in this regard is that of a fabric, weak but whole, made up of small rings – the molecules of history, all equal among them because they are perfectly formalized – which reinforce one another by forming a continuum. This is the image that, in Benjamin, the philosopher of history (a perfect antithesis in every point of the historian of Historismus), is called to shatter at all costs. Thus, the titanic, angelic thought of the philosopher of history wants to regain the past for himself, purified of the acedia of historicist historiography, of the intimate sadness of an interpretation that is based on self-identification with the past. Jetztzeit is the time in which the thought of the Angelus Novus lives, opposing itself to the false unity of a ‘homogeneous, empty’ era, manifesting itself allegorically as true divine violence in a biblical instant.18 But the time of ‘significant moments’ cannot but refer to a reality from which the present moment was generated and ‘realized’, to a mother continent which is the theological dimension of the long periods of the ages. And here it must be recalled that ‘thinking by eras’ is what Benjamin recognizes as most typical in Kafka. The critique of violence ends up in Benjamin’s analysis of the symbol of Kafka. In it a significant role is played by the characteristics mentioned at the start: a lucid awareness of not being able to ‘describe everything’ through the myth of an omnipotent language, as well as not being able to ‘mediate everything’ by a liberal masking of conflict. Kafka expresses acutely, as Benjamin does not fail to note, the necessary reality, in radical 20th-century thought, of an area that transcends language and social communication, of a ‘beyond’ of which (or from which we originate) only disjointed, contradictory, formally non-reconstructible signs appear. These are the signs that animate his critique of myth and law, the latter naively understood in Benjamin as a ‘mythical product’. Kafka’s students themselves are signs,19 men who do not recognize their own voices, the unredeemed. Benjamin observes how the world, deprived of mythical presence, finds its most effective allegory in juxtaposition with prehistoric times: in prehistory, with the species’ memory blacked out,20 oblivion expropriates man even of his past. Prehistory, far from being meaningless for the present, is a living legend, a symbolic place of reification. ‘That this period should be forgotten does not mean that it will not resurface in the present. Indeed, it does so precisely because of this oblivion’.21 The critique of the violence of myth is, therefore, for the ‘expropriated’ man, above all, in a tension of enormous potential that is released in terms of justice leading outside of ‘prehistoric’

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estrangement. Here, the perspective of the ‘Critique of Violence’ re-emerges with clarity in what we might call the naive and fragile (but also acute and paradoxical) natural law without law (or ‘against law’) of the young Benjamin. Benjamin says, referring to a statement by Werner Kraft: ‘The word “Justice” . . . is not employed by Kafka; yet it is from justice that the critique of myth here takes place’.22 Benjamin, as interpreter of Kafka and Kafka’s double, sees in ‘divine justice’ the allegory of a world in which the complete neutralization of the ‘other’ is mere impracticable ideology. Thus, just, divine violence als waltende Gewalt seems not to exclude the possibility of an interpretation that sees it as allegorically aimed at annihilating this ideology. The violence of the ‘other’, which according to Benjamin emerges from liberal discourse, implicitly indicates the need for a thought that reflects and renders visible the contradictions arising from the ‘unredeemed specificity’ outside of any now only regressive attempt to operate on them, through omnipotent language, a definitive synthesis, and a mythical reductio ad unum. NOTES 1 Leaving aside for the moment his ‘Thesen über den Begriff der Geschichte’ (1940), we shall focus our attention on the essay ‘Zur Kritik der Gewalt’ (Benjamin 1996a). The complete works of Benjamin are contained in Gesammelte Schriften, hrsg. v. R. Tiedemann – H. Schweppenhäuser, Frankfurt a.M. 1972 ff. ‘Zur Kritik der Gewalt’ had appeared for the first time in Max Weber’s ‘Archiv für Sozialwissenschaft und Sozialpolitik’, 47, 1920–1921. 2 In the various nuances that this term – in itself polysemic – can have, that are of course not exhausted in the area of early 20th-century Germany, and in particular in neo-Kantian currents and against which arises a fundamental anti-formalist (but not therefore anti-rationalist) controversy. 3 As Derrida, precisely, observes, ‘Gewalt is both violence and legitimate power, justified authority’ (2002, 234). 4 There is a recurrent mechanism in the formulations of that political theory of the early 20th century, based on the critique of the liberal concept of the rule of law, the theorization of productivity in the rationalistic sense (Rationalisierung) of an irrational element introduced into a system, whose elements (norms) are in turn taken to be completely rational. In other words, by way of an example, the enactment of the law (Rechtsverwirklichung) in a given normative-rational system can be ensured in some cases only through a functional introduction of a heterogeneous element to the system: a mythical or ‘charismatic’ one; in any case one that is extra-normative. At this point, Weber’s critique links up with Schmitt’s. 5 The book Réflexions sur la violence (Reflections on Violence 1999) appeared in the early 1920s, which also sees the ‘Critique of Violence’ in its fifth (1921) and sixth (1923) editions. Sorel’s book can be considered among the best known and



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widely debated political texts of the period. On the erste Nachkriegsjahre up to 1923, as well as on the whole Benjamin’s ‘Swiss period’ (1918–1919), see the memoirs of Scholem (1975, 69ff. and 111ff.). 6 As Derrida remarks, ‘Law is not justice. Law is the element of calculation, and it is just that these be law, but justice is incalculable, it demands that one calculate with the incalculable’ (2002, 244). 7 See, on this point, Schmitt in his Foreword to his 1921 book on dictatorship (2014). But it is again Schmitt who in the same period confronts Sorel as a theorist of political myth: see ‘ “Die politische Theorie des Mythus’ (1923), in Schmitt 1940, 9–18. 8 See Benjamin 2005a. But, in speaking of Kraus, we must recall Elias Canetti’s intense pages: ‘ “Karl Kraus: The School of Resistance’, in Canetti 1979, 29–54. 9 See Benjamin 2005a, 456. 10 Num., 16; see Benjamin 1996a, 250. 11 ‘Just as in all spheres God opposes myth, mythic violence is confronted by the divine. And the latter constitutes its antithesis in all respects. If mythic violence is lawmaking, divine violence is law-destroying; if the former sets boundaries, the latter boundlessly destroys them; if mythic violence brings at once guilt and retribution, divine power only expiates; if the former threatens, the latter strikes; if the former is bloody, the latter is lethal without spilling blood’ (Benjamin 1996a, 249–250). 12 Benjamin 2005b, 795ff. 13 In ‘Fate and Character’, an essay, also of 1921; see Benjamin 1996b, 201–206. 14 ‘History [Geschichte] is not the sequence of historical periods but an unique proximity of what is the same, which concerns thinking in the incalculable ways of destiny [Geschick] and with variable degrees of immediacy’ (Heidegger 2002, 159). 15 Benjamin 1996b, 203–204, italics mine. 16 Ibid., 203. 17 A very brief text dated by Scholem in 1920–1921 (see, on this problem, Scholem 1975, 117, as well as Benjamin’s French edition Œuvres, edited by M. de Gandillac, Paris 1971, vol. I, 149) illuminates the meaning of the concept of ‘happiness’ in the relationship that links messianism and history. This is the ‘Theologico-Political Fragment’, whose importance is matched only by the hermeticism of the writing and by the extreme concentration of the concepts elaborated therein: ‘The kingdom of God is not the telos of the historical dynamis; it cannot be set as a goal. From the standpoint of history it is not a goal, but the end. Therefore the order of the profane cannot be built up on the idea of the kingdom of God, and therefore theocracy has no political, but only a religious meaning. . . . The order of the profane should be erected on the idea of happiness. The relation of this order to the messianic is one of the essential teachings of the philosophy of history. It is the precondition of a mystical conception of history, containing a problem that can be represented figuratively. If one arrow points to the goal toward which the profane dynamic acts, and another marks the direction of messianic intensity, then certainly the quest of free humanity for happiness runs counter to the messianic direction; but just as a force can, through acting, increase another that is acting in the opposite direction, so the order of the profane assists, through being

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profane, the coming of the messianic kingdom. The profane, therefore, although not itself a category of this kingdom, is a decisive category of its quietest approach’ (Benjamin 1986, 312). 18 See Benjamin 2006, thesis 14. 19 ‘The forgotten – and with this knowledge we are at a further threshold of Kafka’s work – is never purely individual. Each particular object of oblivion merges with the forgotten of prehistory. . . . Oblivion is the vessel from which the inexhaustible intermediate world of Kafka’s stories erupts into the light’ (ibid., 281). 20 ‘In the age of the maximum alienation of people among themselves, of the infinitely mediated relationships that are by now their only ones, motion pictures and the phonograph were invented. In motion pictures mankind does not recognize its own gait, in the gramophone it does not recognize its own voice. . . . The situation of the subject of these experiments is Kafka’s. It is this situation that refers to the study’ (Benjamin 2005b, 287). 21 Ibid., 280. 22 Ibid., 288.

BIBLIOGRAPHY Benjamin, Walter. 1986. ‘Theologico-Political Fragment’. In Reflections: Essays, Aphorisms, Autobiographical Writings, Id., edited by Peter Demetz. New York: Schocken, 312–313. Benjamin, Walter. 1996a. ‘Critique of Violence’. In Selected Writings, vol. 1 [1913– 1926], Id., edited by Marcus P. Bullock and Michael W. Jennings. Cambridge, MA, and London: Harvard University Press, 236–252. Benjamin, Walter. 1996b. ‘Fate and Character’. In Selected Writings, vol. 1 [1913– 1926], Id., edited by Marcus P. Bullock and Michael W. Jennings. Cambridge, MA, and London: Harvard University Press, 201–206. Benjamin, Walter. 2005a. ‘Karl Kraus’. In Selected Writings, vol. 2, part 2 [1931– 1934], Id., edited by Michael W. Jennings, Howard Eiland, and Gary Smith. Cambridge, MA, and London: Harvard University Press, 433–458. Benjamin, Walter. 2005b. ‘Franz Kafka. On the Tenth Anniversary of His Death’. In Selected Writings, vol. 2, part 2 [1931–1934], Id., edited by Michael W. Jennings, Howard Eiland, and Gary Smith. Cambridge, MA, and London: Harvard University Press, 795–818. Benjamin, Walter. 2006. ‘On the Concept of History’. In Selected Writings, vol. 4 [1938–1940], Id., edited by Marcus W. Jennings and Howard Eiland. Cambridge, MA, and London: Harvard University Press, 289–400. Canetti, Elias. 1979. ‘Karl Kraus: The School of Resistance’. In The Conscience of Words, Id. Translated by Joachim Neugroschel. New York: Seabury Press, 29–54. Derrida, Jacques. 2002. ‘Force of Law. The “Mystical Foundation of Authority” ’. In Acts of Religion, Id., edited by Gil Anidjar. New York and London: Routledge, 230–299. Heidegger, Martin. 2002. Off the Beaten Track, edited by Julian Young and Kenneth Haynes. Cambridge: Cambridge University Press.



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Horkheimer, Max. 2002. Critical Theory. Selected Essays. Translated by Matthew J. O’Connell. New York: Continuum. Schmitt, Carl. 1940. Positionen und Begriffe. Im Kampf mit Weimar – Genf – Versailles (1923–1939). Hamburg: Hanseatische Verlagsanstalt. Scholem, Gershom. 1975. Walter Benjamin – die Geschichte einer Freundschaft. Frankfurt a.M.: Suhrkamp. Sorel, Georges. 1999. Reflections on Violence, edited by Jeremy Jennings. Cambridge: Cambridge University Press. Weber, Max. 1978. Economy and Society, edited by Guenther Roth and Claus Wittich. Berkeley, Los Angeles and London: University of California Press.

Chapter 12

The Being of the Volk: State, Führer and ‘The Political’ in Heidegger’s Seminars during the Kairos Matthew Sharpe SITUATING HEIDEGGER’S 1933–1935 TEXTS The appearance of Martin Heidegger’s Ponderings or Black Notebooks (2016), following the publication of Martin Heidegger’s lectures and seminars from 1933 to 1935, has challenged earlier assessments of the political or metapolitical signification of the philosopher’s work. For a long time, it was a disputed historical question as to whether he was a Nazi and for how long. Then people disputed whether he was somehow only a Nazi as a man, not as a thinker, as if the philosopher of Dasein would be so inauthentic as to de-sever his Sein (Being) and his Seinverständnis (understanding of Being). Some argued that Heidegger was a Nazi, but not anti-Semitic; others, that he was a Hitlerian, without being a National Socialist. We now know from his private correspondence, his speeches and the Freiburg classes that Heidegger was, from as early as 1931, a passionate advocate of National Socialism. His bid for ‘spiritual Führung (leadership)’ for and within the university – the opening subject of the rectorship speech – most certainly failed. It was in that sense, indeed, a Dummheit or ‘blunder’, as Heidegger ambiguously phrased things after the war. After 1935, he became increasingly convinced that ‘those people’, the really existing National Socialists, had been unable or unworthy to fathom the ‘inner truth and greatness of the movement’, in the consummate overcoming of Western modernity, with its ‘metaphysically the same’ avatars of Machenschaft (mechanization) and Verjudung (Judaization), liberalism and Bolshevism.1 Nevertheless, Heidegger remained convinced that such an inner truth and greatness perdured. He never ceded on his sense of Germany’s unique, salvific destiny among the nations, even as he became increasingly uncertain as to what the Weltgeist wanted from Germany and for the world.2 With 199

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National Socialism fallen, first ontologically (into technologism) and then ontically (into catastrophic military defeat, after the war), Heidegger maintained that only a God could save us. What remain to be debated are the exact nature of Heidegger’s ‘Freiburg National Socialism’ and its significance in his philosophy of Being. To answer such questions requires not simply an understanding of Heidegger’s thought, read in its relation to Western philosophy and theology. It requires an understanding of the Nazi movement, the intellectual debates that attended its accession to power and the scramble for status and place of different schools in the chaotic period of the Gleichschaltung. As Robert Bernasconi has commented: There is a considerable ‘communication gap’ between specialist studies on Nazi Germany and wider academic public when it comes to exploring the competing understandings of German identity within National Socialism. This communication gap is especially in evidence in the debate about Heidegger’s Nazism. . . . If we are to understand what Heidegger was saying and why he was saying it in the way he was, then at the very least we need to have an understanding of the debates within the Nazi party so as to figure out his place within them. (Bernasconi 2013, 110)

Informed by discourses concerning totalitarianism, it is easy to assume that there was no intellectual ferment surrounding the Machtergreifung of the new regime. All debate was impossible, with a single-party line enforced by the threat of terror. But this is historically unsustainable. Certainly, all socialist, democratic and liberal opinions became impossible to publicly maintain, and all alternative political parties were banned after July 1933. Nazism as an ideology was built around core principles of the far right: those of German destiny, the need for national palingenesis, the Führerprinzip and virulent anti-Semitism. Nevertheless, beyond these basic principles or prejudices – each capable of bearing divergent rationalizations – it can and has been meaningfully argued that the Nazi movement never had any consistent ideology. As Franz Neumann commented in Behemoth, a work which remains invaluable for its multidimensional analysis of Nazism: National Socialism has no theory of society as we understand it, the consistent picture of its operation, structure, and development. It has certain aims to carry through and adjusts its ideological pronouncements to a series of ever-changing goals. This absence of basic theory is one difference between National Socialism and Bolshevism. The National Socialist ideology is constantly shifting. It has certain magical beliefs – leadership, the supremacy of the master race – but its ideology is not laid down in a series of categorical and dogmatic pronouncements. . . . The ideology of National Socialism contains elements of idealism,



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positivism, pragmatism, vitalism, universalism, institutionalism – in short, of every conceivable philosophy. But these elements are far from integrated. (Neumann 1942, 39, 462)3

In the early period of the regime, as works like Johann Chapoutot’s Le nazisme et antiquité (2009) vividly document, there was a veritable ‘contest of the faculties’ within the German universities. At issue was which anthropological, historical, biological, spiritual, Graecophile, Nordicist or Germanist conception could supply authoritative grounds for the ascendant Bewegung and its historical mission. As Bernasconi again underlines, it is thus facile to identify Nazism with the kinds of biologism which Heidegger would decry as Anglo-Saxon and liberal, as if this showed his resistance to the regime: National Socialism was fractured from beginning to end but, because of the unique value the Nazis placed on the unity of the German people, they can frequently be found in pursuit of biological community as well as psychic and spiritual conformity, or both, however these were understood . . . whatever weight was placed on the biological, it was never all that mattered. (Bernasconi 2013, 110)

With one eye back upon Pierre Bourdieu’s prescient work (1991), and although we cannot pursue this here in detail, an adequate critical understanding of Heidegger’s teaching and speeches in the period of 1933–1935 requires attention to how they resonate within at least five different Kämpfe the philosopher was engaged in, while remembering that at this time he delineated ‘the essence of truth’ as Kampf (Heidegger 2010a, 72–73): 1. Within academic philosophy, a struggle against neo-Kantianism, vitalisms, Husserlian phenomenology and Catholic and Lutheran theology; and in political theory, Otto Koellreutter, Carl Schmitt and other aspirant Nazi theorists [K1]; 2. Within the university, a struggle of ontological philosophy to reclaim ascendancy, by claiming grounding priority, over the other ‘ontic’ disciplines of the social and natural sciences (by securing an imputed object domain, Beyng and its History, inaccessible to these sciences) [K2]; 3. Within the NSDAP (Nationalsozialistische Deutsche Arbeiterpartei) elites, a struggle for his vision of National Socialism against other Nazi-aligned philosophers or ideologues (Ernst Kriek, Alfred Baeumler, Oswald Spengler, Hans Günther, Alfred Rosenberg, etc.) [K3]; 4. Within the new regime, the struggle to reclaim spiritual leadership for the university itself, in light of the advent of mass, urbanised society and the growth of technical education4 [K4];

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5. Within Europe, the struggle for the renewed self-assertion of the Germans as the ‘metaphysical people’ (Heidegger 2000, 41), with the ‘same “ethnicity [Stammesart]”’ (Heidegger 2013, 43)5 and linguistic ‘provenance’, allegedly, as the archaic Greeks6 [K5]. This chapter will address only Heidegger’s legal theory, or rather, what should be called his political or metapolitical theory, to the extent that Heidegger relativizes constitutional, rational legality in terms of his metapolitical philosophy of Being and its adaptation to the perceived demands of ‘the urgency of our [German] Dasein [that] assails us’ (Heidegger 2010a, 67). As Susanna Lindberg has commented, this period of 1933–1935 holds a particular interest for political theorists. For it is the only period in which Heidegger descends from the metapolitical heights of fundamental ontology or its successor, his postmetaphysical thought, to what we would standardly recognize as political philosophy (Lindberg 2014, 20). In 1933–1934, his advanced seminars included an extensive deliberation on the state and its relation to the Volk. The advanced class of 1934–1935 was devoted to a confrontation with Hegel’s Philosophy of Right. Heidegger speaks on directly political subjects: the Führerprinzip, the masses, ‘Semitic nomads’ (2013, 56), the distress of the Volk, friends and enemies and the need for the German state to ‘work out into the wider expanse’ (2013, 55). In the process, he makes clear his criticism of rival National Socialist thinkers, whom he consistently accuses of insufficiently fathoming what Heidegger conceives as the deepest significance of the Bewegung [K2/K3]. Heidegger positively articulates what might be called a National Socialist political theology. This is grounded in the ‘theophany’ of the founding, decisionistic self-assertion of the Volk as a communal Being – ‘i.e. the cutting nearness of the coming god’ (Heidegger 2014, 159) – and the alleged, destined calling of the Führer as someone who ‘makes a gesture towards the Bereich of the Demigods’,7 educating the Volk for its spiritual mission: ‘a total transformation, a worldwide blueprint, on the foundation of which he educates the whole people’ (Heidegger 2010a, 171–176). LEGAL CONTENTIONS WITHIN THE GLEICHSCHALTUNG If we define the law as necessarily uniting rationality, ratio, with will, voluntas, then it is legitimate to say that Nazi jurisprudence was not meaningfully ‘legal’ at all. Piece by piece, until the war of annihilation in the East was unleashed in June 1941, all the rational elements of liberal and modern legality were overturned or destroyed by the new regime. What remained was



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voluntas, unchecked by statutory limitations and concentrated in the hands of Adolf Hitler and his appointees. ‘The National Socialist legal system is nothing but a technique of mass manipulation by terror’ (Neumann 1942, 458). As a recent commentator has described this ‘non-law nature of National Socialist Law’: National Socialism all in all led to delegalisation: delegalisation of the substance of law through the idea of the Volksgemeinschaft, delegalisation of legal forms through the Führerprinzip and of course an annihilation of law through the destruction of the Weimar constitutional order (Lepsius 2003, 28).

The inaugurating basis of this delegalization, after Hitler’s appointment as chancellor on 30 January, 1933, was the infamous Enabling Act of 24 March 1933: ‘An Act to Relieve the Distress of the People and of the Reich’. This act was celebrated in Nazi venues and theorized by figures such as Carl Schmitt and Otto Koellruetter (Caldwell 1994, 406–407) as the ‘corner-stone of a new constitution’ (Neumann 1942, 55). It is the first of three pieces of legislation named and dated by Heidegger in his notes for the 1934–1935 seminar under the header ‘Constitution of the National Socialist State’ (Heidegger 2014, 112). The Enabling Act removed any inherited constitutional restrictions on the new regime and ‘transferred the authority to issue laws, ordinances, and even constitutions to the executive power, eradicating the German tradition of limiting that power by a popular assembly’ (Caldwell 1994, 407).8 In the wake of this new inauguration, political and social pluralism was progressively destroyed: first through the Law for the Restoration of the Professional Civil Service of 7 April 1933, banning Jews from public office (this is the second Law Heidegger singles out); the Gleichschaltung of the trade unions on 2 May 1933; the Law against the Formation of Parties on 14 July 1933; the 1 December 1933 Law Safeguarding the Unity of Party and State (the third Law to which Heidegger assigns constitutive significance); then the 30 January 1934 Law ‘to restructure the Reich [Reicht-Aufbaugesetz]’, putting an end to German federalism (Neumann 1942, 52–55; Lepsius 2003, 22–23). The irrationality of the resulting regime is perhaps most manifest in the sphere of criminal law, as Otto Kirchheimer has chillingly analysed (1996a, 172–193; 1996b, 142–171). All criminal law under the National Socialists became referable back to what paragraph 2 of the German Criminal Code termed the ‘healthy popular sentiment’ of the German people: an open collapsing of the Kantian-liberal distinctions between legality and morality, laws and principles. Just what this ‘sentiment’ was remained opaque, awaiting decision by the judges acting as executors of the ruling regime’s will, and increasingly subject to the executive’s direct intervention to overturn

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unfavourable rulings – as well as its ability to retire insufficiently vigilant judges after 24 November 1937 (Neumann 1942, 454). The 28 February 1933 Decree, in response to the Reichstag fire, enshrined a key pillar of Nazi terror: destroying the ‘liberal’ distinction between intention and action and allowing for the extrajudicial pre-emptive ‘protective custody’ of enemies of the state.9 The infamous 29 March 29 1933 Lex Van Der Lubbe Decree abolished the prohibition against retroactive lawmaking, enabling any action to be potentially deemed criminal or treasonous towards the Volk.10 The overriding reality of the new order, then, lay in the all-determinative Führerprinzip. With the effective destruction of political pluralism, the parliament and an independent judiciary, Hitler concentrated in his hands all lawmaking and law-finding powers. ‘Führer decrees could supplement, break down or substitute for statutes. Eventually, Führer orders were not even published any longer’ (Lepsius 2003, 26). In the Dasein of this supreme judge, legislator and administrator, Schmitt’s trinity of state, movement and Volk – of great concern to Heidegger in his 1934–1935 seminars11 – was unified and crowned. Hitler was by August 1934 at once party leader, president and chancellor; and the cabinet, army and civil service were each made, after Hindenburg’s death, to swear an oath of ‘unconditional obedience’ to the Führer, by name, as well as to the ‘German Reich and the people’ (Neumann 1942, 84–85). The justification of Hitler’s absolute power, if this term preserves signification, lay in his charismatic claim to being Germany’s providential saviour from the ignominies of Versailles and Weimar and the messianic founder of a new 1,000-year Reich. Despite his effectively unlimited powers, Nazi propaganda went to lengths to specify that Hitler nevertheless did not exercise domination (Herrschaft) but leadership (Führung). This is a wholly different affair, whose distinction from Herrschaft Heidegger also goes to pains to delineate in his 1933–1934 classroom.12 For competing National Socialist ideologues, the Führer’s will was not wholly arbitrary, although it certainly exceeded all rational reckoning. For his decisions were hypostasized as the immediate expression of the will of the Volk (Neumann 1942, 83). As the constitutional theorist Ernst Rudolf Huber characteristically described the Führerprinzip, ‘In the Führer the essential principles of the Volk come into manifestation; it is he who lets them become the guiding thread of all the work of the Volk. . . . He embodies the overall will of the Volk as an objective quantity’ (Lepsius 2003, 25). With the terms of posited law thus decided from the top-down, one could be forgiven again for imagining that no room could have been left for legaltheoretical controversy. Nevertheless, the task of rationalizing such a fundamental overthrow of established German and wider jurisprudence remained: firstly, to legal practitioners educated in the old traditions, secondly, to the



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wider German people, over half of whom had not, before 1933, supported the NSDAP; and thirdly, to the wider, non-National Socialist world. Just what, after all, was the nature of the Volksgemeinschaft and its ‘healthy popular sentiment’? How were the new völkisch community and its mission to be conceived: historically, providentially, philosophically, legally, sociologically or biologically as a Blutsgemeinschaft, rooted in ‘blood and soil’? What effects would the new legality have in the areas of property law, labour law, administrative or insurance law, and so on? And just how should Hitler’s extraordinary Führung be justified, alongside the destruction of the rights of individual citizens and the persecution of the Jews and political rivals? Finally but not least, how should Germans conceive the relationship between the NSDAP, as the ruling party in Germany with its own administrative, paramilitary and judicial arms, and the state? At this more theoretical, justificatory level, a series of lively debates between National Socialist and fellow-travelling legal theorists were sparked by the Machtergreifung.13 In his Freiburg seminars, Heidegger attempts to intervene in these debates, by bringing to the legal-political terrain the legitimating resources of his philosophy of Seyn. Three tendencies within National Socialist jurisprudence are particularly proximate to what Heidegger’s philosophy of Seyn will bring to the table in his classes on ‘The Essence and Concept of Nature, History and State’ and Hegel’s Philosophy of Right in the winters of 1933–1934 and 1934–1935. A framing understanding of them has however still to be brought to the task of conceptualizing Heidegger’s National Socialism. The first of these, best known, is the forms of decisionism adduced in competing jurisprudential and philosophical accounts of Hitler’s unlimited Führung in the new Germany. These justifications have obvious resonances not only with Schmitt’s Weimar-era thinking but also with Heidegger’s language of resolution (Entschlossenheit) and ‘decision’ (Entscheidung), hearkening back to Division II of Sein und Zeit but vital in his attempts at this time to conceive the National Socialist revolution. The second, lesser known, is National Socialist ‘institutionalism’.14 This doctrine relativized individual rights as the primary bases of jurisprudential thought. Corporations, workplaces, the military, youth movements – that is, collective institutions – were instead each conceived as ‘concrete orders’: institutional wholes greater than and formative of their constituent parts, facilitating ‘the development of special, purpose-oriented spheres of power’ and quasi-independent jurisdictions (Stolleis 1998, 182–183). On this model, for instance, the state came to be conceived as a ‘political Gestalt of the German people’ in formulations which Heidegger’s ‘the State is the Being of the Volk’ inescapably echo (Neumann 1942, 450). Again, Hitler’s leadership, for the Schmitt of 1933, formed a kind of supra-rational ‘racial identity’ or

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‘contact’ of leader and led, which differentiates the leader’s Führung from domination by some external power.15 The relation between workers and managers in German factories meanwhile could be described in Nazi jurisprudence in terms of a ‘factory community’: ‘an association of social law for the common purpose of the enterprise and the benefit of the nation and the state’ (Stolleis 1998, 125). Again, renters and lenders lived in a ‘house community’ comprising both parties and legislating cooperation, and so on (ibid., 123). The ability of such a jurisprudential optic to render invisible relations of conflict, exploitation and domination, as well as particular individuals’ claims concerning particular actions or issues, behind a linguistic veneer of enforced harmony, is evident. The third, least well-known tendency, equally committed to overthrowing the ‘individualistic principle’ of liberal law, came to operate specifically within Nazi criminal law. Its proximity to Heidegger’s thinking and his essentialist language of this period is particularly direct. This is the so-called phenomenological school of jurisprudence championed by figures such as George Dahm and Friedrich Schaffstein. This Kieler Schule of jurisprudence brought together elements of vitalism and existential phenomenology with Carl Schmitt’s attacks on normativism and positivism. According to its conception, what is determinative for a judge in deciding cases is not the actions, or even the volitions of the individuals brought before him, but their larger ‘personality’ or ‘essence’ (Kirchheimer 1996b, 173; Neumann 1942, 517, n. 90). Criminality, on such a model, resides in the essential natures of different individuals – the career criminal, the degenerate, but also, of course, the racially alien – over and above anything these individuals may have done: Take the example of theft. Traditional criminal law defines a burglar both by his acts and by his intent. The phenomenological school defines him by his ‘personality’. A burglar is one who is a burglar ‘in essence’ (wer seinem Wesen nach ein Dieb ist). The judge must decide by intuition whether to convict or not. There could be no more complete negation of the rationality of Law, nor a better means of terrorising the masses without the restraint of predictable rules. (Neumann 1942, 453)

We are now ready to turn to Heidegger’s 1933–1935 political seminars. ON NATIONAL SOCIALIST DEATHS OF HEGEL In the winter terms of 1933–1934 and 1934–1935, Heidegger added to his ongoing lectures an advanced seminar. For a long time unpublished, the two-seminar series came to light in 2005 through the groundbreaking work



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of Emmanuel Faye (2009). The full transcript of Heidegger’s 1934–1935 Hegel course remains untranslated into English. Ostensibly wholly philosophical exercises, the last five and a half sessions (of ten) of the 1933–1934 course develop Heidegger’s conceptions of the state, the Führer and the Volk. The 1934–1935 course on Hegel’s Phenomenology of Right, similarly, passes between the exegesis of Hegel and the attempt to rethink the bases of the National Socialist state (Lindberg 2014, 23–30). Both seminars move freely between the ontological register and political concerns, like the fate of Germans living outside the Versailles-imposed national borders, the Slavs and the ‘semitic nomads’ (Heidegger 2013, 55–56).16 Heidegger assigns ostensibly ontological meanings to political terms like the state, Volk, and constitution (Verfassung),17 by this device impugning the shallowness of rival accounts of these phenomena [K2/K3]: at the same time as Being is assigned quasi-political predications, notably those of ‘power’, ‘decision’ or (as in the rectorship address) ‘superpower’. Heidegger is clear about the educational purpose of the seminars, to form what he calls a new ‘political nobility’ or ‘band of guardians’ (Heidegger 2014, 52, 45–46). ‘In 60 years, our state will no longer be led by the Führer; therefore what it becomes then will depend on us. That is why we must philosophise’.18 ‘The Essence and Concept of Nature, History and State’ assigns the political failure of Bismarck to the great statesman’s neglect to educate such a nobility, capable of carrying forwards a political tradition. The polemical stakes of these philosophy classes are high (Heidegger 2013, 45–52). As Daniel Gordon has commented, their determinate philosophical contents are profoundly, even depressingly, conformable with the ‘official language of the Third Reich’ (Gordon 2013, 90). Heidegger accepts in full the Führerprinzip, the orienting centrality of the Volk and its imperilled Gemeinschaft to ‘the political’, and the urgency of the National Socialist mission to renew German Dasein. Decrying competing conceptions of the Volk as biological or susceptible to sociological disclosure – and contesting Schmitt on ‘the political’ and the state [K2/K3] – Heidegger seeks to reground the key National Socialist ideologemes in the language of the philosophy of Being: ‘poorly disguising the banality of the ideological affirmations with the illusion that they have emerged only from a laborious search for “essence” and “ground” ’(Gordon 2013, 90). Gordon’s critique focuses on what he describes as Heidegger’s procedure of ‘analogy’, wherein Heidegger draws concrete ontic-political consequences from ostensibly ontological forms of inquiry. The central example of this method, indeed, the central political proposition of both ‘ “Essence and Concept’ and Heidegger’s 1934–1935 seminars on Hegel, is the claim that the state is the Seyn of the people.19 This metapolitical ‘thought’ Heidegger develops by analogy from the analysis of Sorge in Sein

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und Zeit as the Being of individual (or in section 74, ‘collective’) Daseine. Thus, Heidegger: just as the being, man, is conscious of their being-human, is preoccupied with it and cares about it, similarly the people-being maintains a knowing-fundamental relationship with his state. The people, the beings who in their Being realize the state . . . are preoccupied with it and want it . . . the people is ruled by the urge (Drang) for the state, by Eros for the state. (Heidegger 2013, 48)

Everything here calls for analysis, not least the implicit collapse of descriptive and prescriptive registers. Heidegger is mystifying a specific, highly authoritarian conception of the relation of the people to the state as a universal ontological dispensation. Gordon’s analysis, which decries this instrumentalization of the philosophical contents of Sein und Zeit, is incisive but arguably insufficient (Gordon 2013, 90–105). Since he does not undertake an engagement with the contemporary National Socialist jurisprudential debates, Gordon (who is here not alone) does not see how proximate Heidegger’s dicta in the 1933–1934 classes are with contemporary National Socialist ideology: not simply in their content but also in their decisive form. Like the phenomenological legal school, Heidegger’s language obviates all references to acting agents, replacing these with announcements concerning the ‘Being’, ‘Essence’ and ‘way of Being’ of state, Volk and leader. In a way which serves to silence concerns about Hitler’s credentials to rule over the nation of poets and thinkers (Gordon 2013, 94), hence, Heidegger reduces leadership to an unquestionable ontological datum: The origin of all political action is not in knowledge, but in Being. Every Führer is a Führer, must be a Führer [italics in original], in accordance with the stamp in his Being, and simultaneously, in the living unfolding of his proper essence, he understands, thinks, and puts into action what the people and the state are. (Heidegger 2013, 45)20

Heidegger’s contemporary lecture course on ‘The Essence of Truth’ enunciates what amounts to an essentialized order of rank, all again sanctified as Seyn’s unquestionable deliverances: One is not simply only a god [sic.] or just a human being, but rather in each case a decision takes place in Kampf, and thereby Kampf is transposed into Being; one is a servant not because there simply are servants, in addition to other types, but because this being [the servant] contains in itself a defeat, a denial, a deficiency, a cowardice – indeed, perhaps a will to be lowly and base. . . . Kampf makes the fundamental modes of Being visible in their origin from the essence of Being: being god, being human, being servant, being master. (Heidegger 2013, 72–79)



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We need not puzzle over whether the ‘semitic nomads’, who later appear on the scene, unable to, in any way, understand how a German relates to his homeland, harbour this inability in their Being also. This is a matter that Heidegger does not develop before his cohort (Heidegger 2013, 56). The concept of ‘order’ (Ordnung), very much in the jurisprudential air at the time as we have seen, also duly finds its way into Heidegger’s attempt to ‘ground’ an understanding of the rank order between the servant-beings and the master-beings, led by the Führer. This order is a way of Being, more concrete than what he will elsewhere call the merely ‘extrinsic’ relations enshrined by liberal contractarian understandings of social relations: Order is the way of being of man and thereby also of the people. The order of the state expresses itself in the delimited field of duties of specific men and groups of men. This order is . . . grounded in the domination-servitude relation of men to one another. Like the medieval order of life, so also today the order of the state is sustained by the free, pure will to loyalty and leadership, that is to Kampf and faithfulness. (Heidegger 2013, 49)21

It is no longer plausible to suppose that Heidegger, the unworldly philosopher, was unaware of the worldly violences that such formulations in the mouths of a chorus of German thinkers were legitimating. His 7 March 1933 letter to Max Scheler (GA 16: 83) cites approvingly Hitler’s dictum that terror can be broken only with terror,22 and when ‘terror’ is raised in the Black Notebooks in this period, it is positively coded.23 An already-infamous passage in ‘The Essence of Truth’ lectures from the same term of ‘Essence and Concept’ speaks openly of the need to conduct a long, invisible campaign against the ‘inner enemy’ of the Volk, with the aim of völligen Vernichtung (that is, total annihilation) (Heidegger 2010a, 72–73). A further passage from the Hegel seminar, unavailable to English-language readers, stipulates in the inevitable language of essence, a rationalization for the extrajudicial terror licensed by the Enabling Act: When we have recognised ourselves as a people, as Germans, and when we adopt a state structure, we prove and guard that knowledge only insofar as we live and act in the necessary limits of our German essence and our idea of the state. Each defection from the essence of the people is a betrayal (Verrat) of the constitution and of the state, even though this is not conceivable juridically. (Heidegger at Lindberg 2014, 27)

So what moves was Heidegger then making within the National Socialist legal and philosophical contests of the Gleichschaltung, before he became disillusioned about his ability to directly influence the movement and its guardians? And what is there meaningfully new or philosophical in his

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contributions in this decisive period of his lifelong struggle to open a way for a second ‘inception’ of Western thinking, beyond proffering up the language of Heideggerian ontology as a potential basis (more profound than völkisch studies of Volkskunde and racial biologism)24 for the concrete actions of Adolf Hitler and the NSDAP? Heidegger’s 1934–1935 seminar, ‘On Hegel’s Philosophy of Right’, is more informative in this regard, although English readers are limited by the extraordinary publication only of Heidegger’s lecture notes, preceded by essays, several of which nevertheless cite the complete Gesamtausgabe version of the text. Here again, as in the last sessions of the previous year, Heidegger’s focal preoccupation is with the state and its ontological grounding as ‘Being of the Volk’ (Heidegger 2014, 117, 119, 128, 132, 139, 141, 149). With this text in particular, Heidegger was attempting to make his presence felt in the lively debates concerning the nature of the new German state precipitated by Hitler’s rise to power. At particular issue within legal thinking was the issue of whether the new state could still be conceived as a Rechtsstaat, as Koellruetter and others maintained, or whether this term was inescapably ‘liberal’ (Caldwell 1994, 420–425). At issue, more widely, was the relationship between the Nazi Party and the state that the Bewegung had come to ostensibly command. Hitler himself had expressed hostility to statism in Mein Kampf, subordinating the preservation of the state to the preservation of the people and race (Neumann 1942, 64). Yet he, Goebbels and other Nazi leaders used the idea of the ‘total state’, another of Schmitt’s coinages, as an ideological term of art during the Gleichschaltung of 1933–1934 to justify their takeover and as a means to control potentially unruly elements within the NSDAP (Caldwell 1994, 50–51). With the revolution consolidated and the Röhm element (alongside von Papen) purged in July 1934, Rosenberg led a new front against any valorization of the state per se as ‘a mechanical apparatus and instrument of domination’. By contrast, ‘the revolution of 30 January 1933 does not continue the absolutist state . . . it places the state in a new relation to the people’.25 What was now needed, after the consolidation of the army and civil services, Hitler rejoined, was the unification of the party as a single movement, bound by the commitment to pacify and unify the Volk. As the Führer told the party at the end of 1934: ‘the state is not our master, we are masters of the state’ (Neumann 1942, 65). It is in the context of these debates that we need to place Heidegger’s turn to Hegel at this historical moment and his pointed attempt to rebut in this seminar Schmitt’s claim in State, Movement and Volk that ‘on the 30th of January [1933], . . . Hegel died’.26 Within the German jurisprudential world, an argument for the continuing relevance of Hegel as forefather of Hitler’s state had been put by Karl Larenz, but this was a minority position.27 In



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Italy, we know, Giovanni Gentile had also tried to suborn Hegel’s account of corporations and the state to fascist ends. Schmitt’s claim, as the full quotation attests, is quite specific: ‘On this thirtieth of January, the Hegelian civil service state of the nineteenth century, for which the unity of civil service and state-bearing stratum was characteristic, was replaced by another state construction’. Only thus, ‘[o]n this day, one can say . . . Hegel died’.28 At issue here is the Nazi Party’s claims to administrative, juridical and legislative powers, in confrontation with a very powerful ‘civil service state’ apparatus, unlike anything in Italy. Schmitt responded by calling for the subordination of the ‘state in a narrower sense’, as a bureaucratic apparatus, both to the Führer and to his party. The state apparatus, Schmitt argued, was ‘static’, only set into motion by the Nazi ‘movement’. The Bewegung, in turn, was the ‘politicized’, organized element of the otherwise ‘unpolitical’ Volk (Caldwell 1994, 416–417; Neumann 1942, 65–66). As Franz Neumann comments, this derogation of the people alone in Schmitt’s lucubrations was rejected by the higher party echelons, for whom some notion of the people as always-already ‘political’ remained ideologically imperative: How the people could act politically was not explained, only the leadership of the ‘movement’ was recognised. Innumerable pamphleteers stepped forward, calling the people the fountainhead of the State, but none was able to indicate how the people could serve as such, especially since the Leader was not bound [even] by plebiscites. Bad metaphysics replaced any rational discussion of the problem. (Neumann 1942, 66)

Blundering politics, as well as bad metaphysics, is what a critical reader may discern in Heidegger’s attempt, in this context, to turn to Hegel as a means to rival Schmitt’s intellectual influence within the new regime [K3] and to turn for doing this not only to the Philosophy or Right but specifically to those sections (§§ 257–270) on the state. In the notes to his seminars, the ‘movement’ or party are scarcely mentioned, and never developed (Heidegger 2014, 118, 125, 147, 173, 183) although Schmitt’s State, Movement, Volk, Legality and Legitimacy and The Concept of the Political are constant antagonists. Drawing on Schmitt’s 1932 term (which Schmitt had quietly dropped after the Machtergreifung) Heidegger still claims to find in the new Germany at the turn of 1935 an ascendant ‘total State’: “We are talking about a total state. The state is not a particular domain (among others), it is not an apparatus which is here to protect society (from the state itself), a domain with which only some people have to deal’.29 As in 1933–1934, in fact, this appeal to a totalitarian or Führer Staat (Heidegger 2014, 132) is mobilized as one prong of Heidegger’s direct critique of Schmitt’s Concept of the Political. Echoing the invariant charge of competing

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National Socialists, Heidegger charges that Schmitt’s thinking remains too ‘liberal’ (Heidegger 2014, 185).30 For in Schmitt’s work, although the political ‘friend-enemy’ relation can emerge from out of any aesthetic, economic or human relation, it remains one domain among many: just as the liberal distinction between public and private had dreamed of separating the state from civil society and the family. Heidegger’s 1933–1934 notes suggest that he (contentiously) reads Schmitt as not assigning a totally ‘political’ Being to the state: ‘but a decisive aspect of this view is that the political unit does not have to be identical with state and people’ (Heidegger 2013, 48). So, is Heidegger then an unregenerate statist, close to Schmitt’s jurisprudential rival Koellreutter who would continue to insist that the expression ‘National Socialist Rechtsstaat’ did not constitute a contradictio in adjecto? (Caldwell 1994, 421–422, 426). In fact, what is at stake is his own version of the newly timely idea of the people as ‘fountainhead of the state’ under Hitler. Certainly, in 1934–1935, Heidegger wanted to ‘become friends’ with Hegel’s view of the state,31 and he supposes that a perfected National Socialist revolution could bring this state to actuality: “That is a matter of the coming history. Then indeed – Hegel – the completion.” (Heidegger 2014, 131). Yet Heidegger, like Schmitt, knows that Hegel’s state is ‘predicated on a bureaucracy that guarantees the basic freedoms of the citizens because it acts on the basis of rational and calculable norms’ (Neumann 1942, 78).32 As Lindberg has documented, Heidegger thus largely passes over the opening 250 sections of The Philosophy of Right concerning the rights to property and contract, ‘morality’ concerning the individual, and the first two sections on family and civil society in the ‘Ethical System’ (Lindberg 2014, 24). Heidegger also passes over in silence Hegel’s conception of the sovereign as a formal, constitutional figure.33 Instead, he repeatedly stresses the need to overcome (as against ‘sublate’) the separate legislative, executive and judicial arms of government (Heidegger 2014, 109–111, 182–183). The unification of powers, we know, must take place in the ‘Dasein’ of the Führer, not as ‘a mere coupling and heaping up (quantitative), but rather in itself already the starting point [Beginn] for the development of an originally new – but also undeveloped beginning [Anfang]’ (Heidegger 2014, 109–111): ‘Legislative and Executive – no longer severed!’ (Heidegger 2014, 110). As Lindberg has argued, the principal stake in Heidegger’s attempt to ‘befriend’, by denaturing, Hegel is his desire to secure a more ‘originary’ basis for the new Nazi movement-state than his rivals [K3]. ‘If Marx’s conception of the State is too sociological (GA 86: 607), Carl Schmitt’s foundation of the relation friend-enemy is not originary enough either, and Hegel is more metaphysical than either of them’ (Lindberg 2014, 25).34 Heidegger is attracted to Hegel’s metaphysical grounding of the state as the unifying,



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organic actualization of historical spirit, in which Heidegger tries to see a cognate ontological basis to his own philosophy of Seyn and Volk (Heidegger 2014, 164, 179, 185). To Hegel’s spirit, however, Heidegger brings a series of neo-Nietzschean importations, notably a language of self-assertion, struggle and Macht: ‘an originally effective whole – unity of the singular and the universal – independence of spirit – as power [Macht] – force [Gewalt]’; ‘the state only “has” power because it “is” power – and it “is” power – because it “is” spirit’ (Heidegger 2014, 166, 192). Indeed, Heidegger violently reads Hegel’s state as not imminently, dialectically fulfilling particular individuals’ claims to freedom, so much as a concrete universal order that abstractly overcomes any residua of individual right: ‘in the definition of state nothing of “right”? But indeed! Ethical life the truth of right’ (Heidegger 2014, 164). For Heidegger, the ontological basis of the state lies in the unitary ‘self-assertion’ of a Volk (Heidegger 2014, 152, 158, 177, 185), marking out a space (that of the polis; ibid., 184–185; 2015, 41, 51–52), and only thus (contra Schmitt, ostensibly)35 ‘the concrete carrying out of the conflict viewed from the essential truth of the historical Dasein of the people. Cf. Heraclitus’ (Heidegger 2014, 186).36 In the classical Heideggerian topos, what is required in the National Socialist state is thus not a fulfilment of the progressive unfolding of Geist. The one thing needful is a ‘return to the origin’ (Heidegger 2014, 111), the ‘decisional’ ground of ‘the political’ in the self-assertion of the particular German Volk: ‘the determining middle of the self-determining Dasein of a tribe’ ‘grounding back into the people, and that means a grounding ahead into its historical sending’ (Heidegger 2014, 185, 183; see also 175). We see that Heidegger has exactly answered the call of the times, however unfavoured the idea of calling this a ‘total state’ had become. The leader of this leadership state, whose will will be law, will be far more than the merely Hegelian ‘[d]irector of the bureaucratic apparatus’: indeed, he will be what Hitler had already become, ‘the preparer of danger and decider of the struggle and guardian of its new truths’ (Heidegger 2014, 183).37 At this point, the full force shows itself of what Herbert Marcuse wrote concerning Heidegger’s claim in the 5 November 1933 Freiburger Studentenzeitung – that all that was left for philosophy ‘in this hour’ was ‘the business of justifying, through . . . its profound knowledge of man, those who want not to know but to act’: With relentless consistency, this philosophy has followed through to the end the road from critical idealism to ‘existential’ opportunism. Existentialism, which at one time understood itself to be the heir of German Idealism, has given up the greatest intellectual heritage of German history. It was not with Hegel’s death but only now that the Fall of the Titans of German philosophy occurs. (Marcuse 1968, 42)

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NOTES 1 Heidegger 2000, 28–29: ‘This Europe, in its unholy blindness always on the point of cutting its own throat, lies today in the great pincers between Russia on the one side and America on the other. Russia and America seen metaphysically, are both the same: the same hopeless frenzy of unchained technology and of the rootless organization of the average man’; see: ‘In accordance with its nature [Art], JewishChristian domination plays a double game, simultaneously taking the side of the “dictatorship of the proletariat” and the side of the liberal-democratic cultural strivings’, and so on. Heidegger, Besinnung, cited at Žižek 2009, 134; compare with Heidegger’s use of the signifier Verjudung, a term which makes its way into Heidegger’s correspondence as early as World War I; See, on this, Faye 2009, 33–35, 283; and with the term in the as-yet untranslated Black Books from after 1938, see Fagenblat 2014, 8–24. 2 ‘What the Weltgeist has in store for the Germans is a mystery. Just as murky is why it is using the Americans and Bolsheviks as its servants’ (18 January 1945). Martin to Fritz Heidegger, cited in Soboczynski and Cammann 2017. 3 Compare Lepsius 2003, 27: ‘There occurred, however, neither a canonisation of the National Socialist ideology nor a fixation of particular binding forms or sources of law apart from the Führer’s orders’. 4 See Ringer 1969, for the politics of the mandarins and their scorn for mass democratic society. 5 Fried and Polt’s authorized translation renders the original (Stammesgemeinschaft und Rasse) as ‘unity of blood and stock: the race’. 6 Heidegger 2010b, 5: ‘But where and when did the first and only decision for the fundamental question of philosophy, and thus for philosophy itself, take place? At the point when the Greek people, whose ethnicity [Stammesart] and language have the same provenance as ours, set about creating through its great poets and thinkers a unique way of Dasein for a human people. What had its inception there has remained unfulfilled to this day’; etc. 7 Heidegger’s 1934–1935 lectures on Hölderlin, cited at Faye 2009, 106. 8 Between 23 March 1933 and April 1942, its last session under the Nazis, the Reichstag passed just seven formal statutes; see Lepsius 2003, 26. 9 The Völkischer Beobachter gloated in 1935 that ‘criminal law should not simply react to illegal actions, but should additionally ensure that all hostile political groupings are eliminated’. Kirchheimer 1996b, 149. Section 7 of the Prussian decree of 10 February 1936 enshrined the Gestapo as a law unto itself, providing that ‘no order or affair of the Gestapo is subject to control by the administrative tribunals’.; Neumann 1942, 452. 10 A decree of 20 May 1940, after the war had begun, made it ‘legal’ to punish enemies of the regime, even outside of what were the Reich’s borders before the war of racial conquest began. See Neumann 1942, 456–457. 11 See Heidegger 2014, 118, 125, 147, 161, 173, 183. 12 See Heidegger 2013, 58, 62–63. 13 See, notably, ibid., 48–51, 62–66.



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14 See Bates 2006, 415–442; Imbsweiler 2017, 6, 8, 23, 36. For Schmitt at this time, the jurisprudential idea of ‘concrete orders’ was ‘Germanic’, from the middle ages, in opposition to abstract Roman legality. This opposition of German (concreteoriginary-collective) and Roman or ‘Jewish-Roman’ (abstract-derivative-individualistic) was a common trope in Nazi jurisprudence, on which see Preuss 1934, 269–280. For Heidegger’s commitment to the ‘concrete’, and its political valences, see Gordon 2013, 98–101. Heidegger’s shunning of Roman terminology, as well as association of the forgetting of Beyng with the translation of Greek into Latin, is well known. 15 See Trawny 2014, 13; Bates 2006, 437. 16 For the contemporary use of this as euphemism for the Juden in Goebbels and others, as recognised in particular by Victor Klemperer, see Gordon 2013, 97. 17 ‘State’ is referred back by Heidegger, remarkably, to the Latin status at 2015, 42, in a rare exception to the thinker’s anti-Romanism/Latinity. It thereby becomes ‘a mode of Being’; on ‘constitution’ as similarly prior to any written, rational Verfassung, see Heidegger 2014, 109–113, 180–181, 184. 18 Heidegger’s untranslated 1934–1935 advanced seminar on Hegel’s philosophy (GA 86: 560), cited at Faye 2009, 220. Compare the 50-year purview for political education at Heidegger 2014, 125, 169. Heidegger was at this time thinking in decades, if not centuries. 19 Compare Heidegger 2013, 42–44, 46, 48–49; Heidegger 2014, 117, 119, 128, 132, 139, 141, and 149. 20 For reasons that are not remarked, the English translation controversially removes the italics from the copula and verbs and gives ‘leader’ for Führer. 21 Or as he puts it more bluntly one year later: ‘The state should consist in the “fact” that one commands and others obey!’ Untranslated manuscript of On Hegel’s Philosophy of Right, cited at Lindberg 2014, 22. 22 The text of the letter is reproduced in full at Faye 2016, 524. Heidegger enjoins that if Scheler ‘truly’ recalls the violences of communism, he should not be shocked by the violence of Hitler’s claim and that which it is licensing. 23 See Heidegger 2016, 69 (‘terror and blessing, the great attunements that incorporate humans’), with 333. 24 For Heidegger’s K2/K3 critique of the Nazi social-pseudo scientific study of folklore, see Heidegger 2013, 56. This can discover only forms of magical thinking common to all peoples and so is insufficient to ‘awaken the consciousness of the Volk’. 25 Rosenberg, cited at Neumann 1942, 63; see Caldwell 1994, 428–429. 26 Schmitt, at Caldwell 1994, 416–417. 27 See Neumann 1942, 483, n. 40. 28 Schmitt at Caldwell 1994, 416–417. 29 Heidegger’s untranslated Hegel transcript, cited at Faye 2009, 231; see Heidegger 2014, 112. 30 Compare Trawny 2014, 15; for charges and counter-charges of liberalism in jurisprudence, see Caldwell 1994, 416–425; and more widely among intellectuals on the anti-liberal Right, Altman 2010, 198–232. 31 Heidegger, untranslated manuscript, cited at Lindberg 2014, 20.

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32 As Neumann continues, ‘For no one can doubt that Hegel’s idea of the State is basically incompatible with the German racial myth’. 33 See Lindberg 2014, 29–30; Žižek 2009, 132–134. 34 This is a classic example of Heidegger’s K3 positioning: he does not contest the ‘ontic’ accuracy of the contestable idea that politics is about friendship and enmity, but regrounds it in something allegedly prior, and claims that this regrounding is nevertheless decisive. The same logic applies to Heidegger’s criticism of biologistic anti-Semitism. 35 Heidegger 2014, 185. Ambiguously, given that Heidegger has argued one year previously, in his ‘Essence of Truth’ lectures, that such Polemos against the enemy belongs to the ‘essence of truth’, as delineated in Heraclitus, fragment 53, on ‘Polemos as father of all things’, read as ‘not a scientific proposition. . . [but] we must listen to this declaration appropriately, put ourselves at its command, and allow ourselves to be sobered by the self-ruling gravity of this primal declaration’ (Heidegger 2010a, 76). 36 See note 35 on Heraclitus. 37 Heidegger delineates here in a section of the notes entitled ‘The Metaphysical Basic Power of the Future State, Cf. the Political’: ‘The “struggle [Kampf]” – Care – competency . . . as (1) mastery – rank – the ones who care – ‘guarding’ the being; (2) work; (3) as truth (nature – soil – blood – homeland – landscape – gods – death) – both grounding in themselves’ (with italics ours).

BIBLIOGRAPHY Bates, David. 2006. ‘Political Theology and the Nazi State: Carl Schmitt’s Concept of the Institution’. Modern Intellectual History 3 (3): 415–442. Bernasconi, Robert. 2013. ‘Who Belongs? Heidegger’s Philosophy of the Volk, 1933– 34’. In Heidegger, Martin: Essence and Concept of Nature, History, and State. Translated and edited by Richard Polt and Gregory Fried. London: Bloomsbury. Bourdieu, Pierre. 1991. The Political Ontology of Martin Heidegger. Stanford: Stanford University Press. Caldwell, Peter. 1994. ‘National Socialism and Constitutional Law: Carl Schmitt, Otto Koellruetter and the Debate over the Nature of the Nazi State, 1933–1937’. Cardozo Law Review 16 (December): 299–427. Chapoutot, Johann. 2009. Le nazisme et antiquité. Paris: Presses Universitaires de France. Faye, Emmanuel. 2009. Martin Heidegger: The Introduction of Nazism into Philosophy. Translated by Michael B. Smith. New Haven and London: Yale University Press. Faye, Emmanuel. 2016. Arendt and Heidegger: Extermination nazie et destruction de la pensée. Paris: Albin Michel. Gordon, Peter. 2013. ‘Heidegger in Purgatory’. In Heidegger, Martin: Essence and Concept of Nature, History, and State. Translated and edited by Richard Polt and Gregory Fried. London: Bloomsbury. Heidegger, Martin. 2000. Introduction to Metaphysics. Translated by Richard Polt and Gregory Fried. New Haven and London: Yale University Press.



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Heidegger, Martin. 2010a. Being and Truth (Studies in Continental Thought). Translated and edited by Gregory Fried and Richard Polt. Bloomington: Indiana University Press. Heidegger, Martin. 2010b. ‘The Fundamental Question of Philosophy’. In Being and Truth, Id. Translated and edited by Gregory Fried and Richard Polt. Bloomington: Indiana University Press. Heidegger, Martin. 2013. Essence and Concept of Nature, History, and State. Translated and edited by Richard Polt and Gregory Fried. London: Bloomsbury. Heidegger, Martin. 2014. On Hegel’s Philosophy of Right. Translated by Andrew J. Mitchell. London: Bloomsbury. Heidegger, Martin. 2016. Ponderings II – VI: Black Notebooks 1931–1938 (Studies in Continental Thought). Bloomington: Indiana University Press. Imbsweiler, Eva. 2017. ‘Individualism, the Total State and Race in the Views of Carl Schmitt’. Thesis, Georgia State University, 2016. http://scholarworks.gsu.edu/ philosophy_theses/179. Accessed 11 January 2017. Kirchheimer, Otto. 1996a. ‘Criminal Law in National Socialist Germany’. In The Rule of Law under Siege, edited by William Scheuermann. Berkeley: University of California Press, 172–193. Kirchheimer, Otto. 1996b. ‘State Structure and Law in the Third Reich’. In The Rule of Law under Siege, edited by William Scheuermann. Berkeley: University of California Press,142–171. Lepsius, Oliver. 2003. ‘The Problems of Perception of National Socialist Law or: Was There a Constitutional Theory of National Socialism’. In Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and Its Legal Traditions, edited by Christian Joerges and Navraj Singh Ghaleigh. Oxford and Portland, Oregon: Hart Publishing, 19–42. Lindberg, Susanne. 2014. ‘Hegel in 1933’. In Heidegger, Martin: On Hegel’s Philosophy of Right. Translated by Andrew J. Mitchell. London: Bloomsbury, 3–18. Marcuse, Herbert. 1968. Negations – Essays in Critical Theory. London: Allen Lane/ Penguin Press. Neumann, Franz. 1942. Behemoth. New York: Oxford University Press. Preuss, Lawrence. 1934. ‘Germanic versus Roman Law’. Journal of Comparative Legislation and International Law 16 (4): 269–280. Ringer, Fritz. 1969. The Decline of the German Mandarins: The German Academic Community, 1890–1933. Cambridge, MA: Harvard University Press. Soboczynski, Adam, and Alexander Cammann. 2017. ‘Heidegger and Anti-Semitism Yet Again: The Correspondence between the Philosopher and His Brother Fritz Heidegger Exposed’. https://lareviewofbooks.org/article/heidegger-anti-semitism-yet-correspon dence-philosopher-brother-fritz-heidegger-exposed/. Accessed 11 January 2017. Stolleis, Michael. 1998. Law under the Swastika: Studies on Legal History in Nazi Germany. Translated by Thomas Dunlap. Chicago: University of Chicago Press. Trawny, Peter. 2014. ‘Heidegger, Hegel and the Political’. In Heidegger, Martin: On Hegel’s Philosophy of Right. Translated by Andrew J. Mitchell. London: Bloomsbury, 3–16. Žižek, Slavoj, 2009. In Defence of Lost Causes. London: Verso.

Chapter 13

The Migration of Frontiers William Watkin

SNATCHED FROM YOUR SELF One day, during a peaceful protest, uniforms snatch you from the boulevard and cart you off in the back of a van. You’re interrogated, tortured, humiliated and sexually abused for a period of weeks stretching into months. Your torturers convince you that you will never see your family again and will die in a soiled cell. In a sense, they were right because one day they release you only for you to find that you are effectively dead, although you can hobble and weep well enough. After your release, it is clear you are not the same person. Experts would say you are suffering from post-traumatic stress disorder, or that you are depressed. But if they do, you know that they are wrong because you once studied philosophy at university and know better than what seemed to you to be the sophistry of psychology. If, however, you are suffering the psychological after-effects of an extreme and sustained physiological mortification of the flesh, you are also subject to a political, or specifically biopolitical, metaphysical malaise. When you are held within a territory or state where the sovereign power and its governmental executors no longer hold your life as valuable, as citizen-like, where they see you as a dog, a traitor, an anomic animal, and although they release you, you know at any moment they could come for you again, then you cease to be human. And when a human being is no longer human in the eyes of other so-called or self-styled humans, they will never be well again. You have heard people speak of psycho-somatic diseases. You are host to an onto-somatic dis-ease: you live, you move, but you can no longer simply be human and alive and of worth, in your own skin. When you are cast from the safe passage of the biopolitical vessel, this 219

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feeling of your ‘you’ not being you, of having not just crossed a line but having been crossed out by a line that cuts its way clean through you, like the ocean wind at the edge of a precipitous cliff, you grasp the first inkling of the bioviolence at the heart of every state. Not a violence of appropriation, like being snatched, or of possession, like incarceration, because at least then you are still wanted. Nor the violence of brutality, for even when the state punishes your body or even takes your life it does so out of concern, it kills you as one of its own that has erred and then been brought back into the juridical flock. Instead, you experience the bioviolence of indifference, neglect, exclusion and in-appropriation. You see such states make a great deal out of their governmental deposition of your very body as their prime concern, precisely to facilitate the efficiency of the negation of your rights and existence, with the minimum of violence or legal wrangling. This is the beautifully apposite nature of bioviolence for the modern state: maximum damage from minimum investment. In a sense, torture and all that is window dressing, a kind of sadistic skeuomorphic remnant referencing how states used to cross the frontier of decency. It’s not actually needed. The line of life, of rights, of being and existence, comes pre-crossed-out in the biopolitical state where deixis is the central technology of harm. The state merely has to point out what is surely already obvious: in protecting your life in your body through the organizing of your existence into a governable body, it cancelled your humanity long ago. It was never clear to you, while undergoing torture, at what point your humanity had ceased to function as a necessary fiction. One might assume there was a so-called tipping point, the mythical straw that breaks the back of the camel, but in your case at least, emulating the large-scale historical processes of the biopolitical global coup, there was no ontological decision of negation. One might imagine, given what we have learnt of Being over the millennia, that being-as-such has some form of threshold. What is being if it is indiscernible from other beings, if it has no delimitation, if it is not definable thanks to a frontier? Surely the whole human expedition, from supposed animal to self-conscious reflection on our non-animality, is little more than a journey across the threshold of our ownmost being, that which is yours and who you are, towards the frontier of the other, including yourself as other. And while you are in possession of being, of precious because precarious human being, this feels very much the case. But torture and debasement start to uproot the ontological fence that separates you not from others so much as from complete dissolution and incoherence. The anomic state that every state teaches its every law-abiding citizen to soil its pants over, every time it thinks of the threat of the pre-, post-, or extralegal state of nature.



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INSIDE AND OUTSIDE BEING During torture in those early days the pain seems to bed-down and recapitulate a sense of self-completion. An entrenchment occurs as you withdraw into yourself, focus entirely on the sensations of burning, slicing, penetration and separation. Some believe you are never so much yourself as when you experience pain, a sensation of such intensity that all philosophical doubt falls away and for a moment you can be certain of two truths: P, your pain, exists, and it is your private pain no one else’s. As they pummel the soles of your feet one day, you start to laugh at Wittgenstein’s staid and unambitious conception of P for pain.1 He was probably thinking of a toothache, not shattering of all your teeth with a truncheon. He misconstrued the nature of P, as those who have never truly experienced P in all its potentialities will tend to do. The whole point about P is that it simultaneously is not-P, which is why it can be purely ostensive, private and yet totally knowable and universally transmissible. All humans know of this state, the experience of a communal inexperienceable total difference. One might call it the very experience of the limit. All humans know of this, except philosophers of course. P is notP, that’s the formula of violence, that’s why it exists and inexists, because it cannot be named, it can only be endured. But as the days passed the various procedures of dehumanization began to have the opposite effect. It was as if your very being was evacuated along with your bowels and guts producing a new conception of ontico-limitation, a line that can be excreted from the body, a line that both delimits your essence and strikes it from the register. Sometimes you abandoned your body entirely and experienced a mystical sense of non-being. You came to appreciate the wisdom of the flagellates whose extreme version of Islam you used to despise. Pain contains within it a paradox, an aporia, a kind of Möbius strip of being and non-being. The more the bradel wheedles its way into your palm, the closer you come to a complete occupation of your physical being and its total abandonment, simultaneously. In a less, then, lucid moment it reminds you of making cheese, that alchemical process you used to never tire of watching as your grandmother dropped in the rennet and the curds and whey parted company. After weeks of being pure curd, you find yourself carried away into the absolute dilution of being without body, without limits, without frontier. This is the whey, you chuckle to yourself, this is the whey. Yet this is not a celebration of being or a liberation but the final perturbation of being into what was always its threat, its greatest fear, that which forced it to seek out the bunker of rational, systematic thought. I am speaking of being as pure indetermination, chaos and madness. And yes, you did go mad many times, but there was no one point that you became mad. And you were debased,

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endlessly but no single moment when you were the debased itself. You were laid out innumerable times in your own expelled waste, but you can’t recall when you merged with that waste. You entered that cell a human being and you left an animal, but, you came to realize, left alone in the dark day after day to think like René Descartes in his stove or Plato in his cave, you were an animal before you entered as well and intermittently you will present as a human being again whatever happens. These things are not clear-cut; there is no single point of being. Being is not determined by a line, a limit, a frontier; being is what is generated as you cross and recross that line. Humans are not the not-animal nor are they the animal; humans are multiform oscillations between the two and maybe other things besides. This then is the final desolation of being brought about by violence, violence of all kinds, from extreme to the barely perceptible bioviolence of the modern biopolitical state. In that violence tears through frontiers, boundaries, definitions and the like to enter you into a single, pure, undelineated continuum of pain, it can destroy all such modes of division and categorization, as well as create them. Not just the physical and discursive differentiation between the human and the animal typified by what you have heard is sometimes these days called the homo sacer2 but even the temporal differentiation, the before and after of pure being. You entered that room a human being, you left it an animal, and this simple fact retroactively started to deconstruct the whole history of your humanity, of our collective humanity, infected every memory and moment before you crossed that threshold and took flight into the very frontier of what is acceptable, which one might call the inappropriable in all its senses, so that you forget when it was that you were even human. It being worse, you see, than simply the realization that the tipping point is a juvenile attempt by us to impose division, causation and succession, things which, if you have ever been tortured you will know, have no meaning at all. Not only was there no clearly definable moment where you crossed the frontier of human being, but there was no clearly definable human being in that room in the first place. And maybe that was your one last consolation, as they dumped your soiled and broken form on a concrete cul-de-sac in an abandoned industrial estate just two kilometres from your home. They failed to reduce you to an animal, bare life, merely existing as survival, because you were always already in that state, we all are, it is just that most of us never realize it, because we have not suffered the ignominy of having our toenails removed by a set of pliers wielded with a torturer’s unfathomable nonchalance. So you went home just so you could choose to leave home, not to escape, but because there was nothing now, no fiction of self, family, affect, rights, citizenship, nation or ontico-privilege to keep you in place any more. You appreciated by then that all these concepts were mere constructions, a form



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of inter-collective glue to keep humans safe from the secret that there are no humans, no animals either, no being nor even existence because there are no frontiers, no limits, no restrictions to what we will do to each other or what we will endure under the mistaken misapprehension that if we survive this ordeal, we will emerge on the other side and see our family and friends again, eat a peach, watch the dusk light gyre with the shadows of a thousand roosting swallows above the minaret of the backlit mosque. What many people don’t want to grasp about migration, migration being the inevitable consequence or, perhaps, origin of the frontier, is that the camp begins at home. They see you sitting on a plastic dinghy with a hundred other lost souls, becalmed and starving on some benighted waterway, and they think this is your precarity. They watch you fleeing with your children from the tear gas of Macedonia towards the razor wire of Serbia, and they think this is your escape route. Or they share images of you online, crouching in the Normandy rains under a pallet strung with tarp, weeping as the French police burn your goods and they say, ‘That’s like a concentration camp on our own doorstep’. But they’re wrong. From the moment a state turns on its citizens and locks them down within its sovereign borders, they make of their state a camp and of their people ossified, internal migrants. There being a paradox here that has always haunted the border, one that perhaps Agamben was the first to truly excavate, that of the inside/outside.3 For a state to exist and thus conjure you up as a citizen with first national and then human and now biorights, it must corral its citizens into a territory, differentiate them from noncitizens and thus instigate a process of legitimized and complicit encampment that can only lead to the violence of bare life, the camp and all those other watchwords that get bandied about. This is the violence of the line, the scission, the primal cut of state that is the essence of the political. Politics is the violence of division, not care of the communal, as most theorists claim. Politics is not the dialectic of friend and enemy, or self and other, you find in Jacques Derrida and Slavoj Žižek;4 that comes later, that’s a distractive fiction along with all the rest. No, the very first violence of the political is the idea of the political, of the state, of the need for the defined collective. It is the partitive act of being and belonging or being as belonging: I am me because I am a Roman, I am me because I am a human, I am me because my body is sanctified by the very fact of my existence. I am me because I am the margin. VIOLENCE OF THE LINE The first violence of the state is the proposition of a frontier, of a line to define the self as something that a larger conglomerate can take control of, or responsibility for. This first violence of the line – the moment of difference

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if you will, only it is not difference really, not in the way you probably mean that term – is then immediately the second violence to the line. The first blow is a cut, a slice, a separation, but the second is more akin to the rack, the thumb-screw, sleep deprivation, those modes of torture that twist and deform the body without, however, penetrating its skin. The line is shaped, curved, bent back on itself such that the separation of a being from other beings through the simple snatch of the being on the street and its relocation in another, policed and overseen territory, becomes an enclosure. The two ends of the line are forced together against their will, like the incompatible poles of two magnets, until the line, or frontier, becomes legitimately a boundary or border. Not just a line between yourself and your not-self but also a territory. Is it correct, as Gilles Deleuze contends, that everything is reducible to issues of territory and assemblages,5 or is the opposite true, as Thomas Nail argues, that we were always in the first instance migratory and that migration is the foundation of the frontier?6 The answer is that neither is correct; both are mired in the very discourse of the container, the enclosure, the polis and the wall. There is surely a reason why so much political discourse falls prey to the dreaded philosophical dead end of circular reasoning. The circularity of the line is only one of its impossible topologies that we have inherited as a basis for how we think power, the individual, the collective, the right, ownership, law and of course the other. In truth, the immensity of the human story is not reducible to dialectic and opposition. We are back with Agamben again, that part of his work many choose to ignore because it is too troubling, takes too long to explain, doesn’t work so well within the context of our current philosophy of difference.7 There was, he says, no inside and outside, not outside then inside, or if you prefer, inside becomes outside. There never were any territories or nomadic steppe; we didn’t begin with movement and progress to stasis, or flee from settlement in quest of fresh pastures. The line which determines this entire mode of thought and source of its dispute is a constructed one, meaning the first political act was also the first philosophical: division. Deleuze again, it is not the answers you find to questions that matter but the questions themselves, that’s from What Is Philosophy?, an honest book full of lies.8 For once you start to think in terms of questions and answers it is too late, you have been territorialized by the line of division, you have entered an ontological state, your entire mind has become micro-politicized. Which is what Deleuze says, and so is correct. All that he says that is incorrect is that this process of territories and assemblages is all that there is, inevitable, inescapable. Tell that to the migrant, you think, as you fling a few things into a backpack and scrabble together your meagre funds, stuffing them in a sports sock.



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From whence does the migrant flee? And towards what? What if the migrant does not seek to cross the line from, say, a ‘failed’ state to a ‘successful’ one, whatever that might mean, but does not seek to cross a line at all, does not seek a state, is not fleeing one territory to reassemble its being in another? What if the migrant seeks to flee the line as such, to break with territory and to do so in a non-nomadic fashion? If the migrants do, it is too late. They are lost as they flee because they are ensnared by pity. William Blake and Stefan Zweig englobe the modern ethical stance when they sound this out,9 I mean the third violence of the line, the creation of the other as something to be respected, loved and, yes, pitied. The first violence was separation itself, difference, leading to a need for power. The second was the malleability of the line, the encircling of a territory leading to the endless, political and ontological circularity of inside and outside. The very basis of the modern, territorial conception of sovereign states. But it is the third violence, that of the other, not violence to the other, but the violence of the very concept of the other, that is the one the migrant suffers from the most. For by placing the migrant in a position of precarity and alterity yes, you can produce certain political outcomes due to affect and care, the actual effect on the ontology of the migrant is disastrous simply because ‘being a migrant’ is the very last thing they want. And I will go this far down the track with Deleuze and Nail, we are all subject to a migratory future because we all emerge from a migratory past, it is just that what is past is not the same as the ârche, what was, or is, original. This being the case, with the kind of deductive force and clarity that can only be experienced during exodus, we will all be subject to the violence of otherness (of being othered?). Yes, of being treated like the other – everyone is an expert in the impossibility of knowing the other qua other as precarious, Butlerian, I would even say late-Romantic being10 – but more importantly of the violence of alterity to the very concept of existence. This, then, is the unholy trinity of all political and philosophical concepts, because they are essentially the same: separation, enclosure and opposition; or lineation, circularity and nodality. That is all ye know on this earth, as you hunt for and flee from the nomos of the globe as Schmitt called it,11 and all ye need to know. BORDER Moving at speed, during the night, through scrub, and desert you are not sure when you cross the original, actual border, and as for the new interim border, you appear to cross and recross that multiple times with money replacing documents as the key to its traversal. This mobile, proliferating, heterogeneous and unlimited border, that seems as much inside you as on

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the outside of your nation, is both an undeniably contemporary experience of the borderscape of the southern and eastern Mediterranean and an ancient restaging of the original, philosophical question of the ontology of the border as such. You come to appreciate the fallacy that you are a migrant crossing a border. You tend to intrinsically reject the extrinsic imposition of the identity of movement, migration, as a definition of ontological attenuation when placed against the power and strength of a state, that which does not move, that which has a stable frontier. You are not a migrant crossing a frontier, you are a person caught in the migratory doubt, panic, violence and promise of the contemporary, post-globalized, quasi-statist migration of the frontier as such. Doubt over the location, consistency, closure and stability of the border has ever been at the heart of Western thought since the Greeks; you remind yourself as some kind of consolation for your perpetuated state of stabilized displacement. An apt observation in its way as you are physically confronted with border as aporia somewhere in the Aegean when your outboard sputters three times then dies. The greatest historian of the metaphysics of limits, borders, boundaries and frontiers is Derrida, an immigrant himself whose Algerian homeland was lost forever because it was never his.12 Derrida, you recall fondly from happier times as you wait on rescue or disaster, pursues the simultaneous metaphysical and historical deconstruction of the limit by first determining that any being must come into being as such as this being and not any other being and so must establish an ontological limit.13 Becoming a unit is, as Alain Badiou’s work showed in that last course you took, the fundamental ontological operation.14 Once a being becomes a unit, this limit to their being, which at first is perhaps just a dividing line, needs to be tested on all sides. It becomes, therefore, not just a limit, beyond this point I am no longer me but a boundary. Everything inside here is me; all the rest is not and thus open for colonization or at least exploration. As your boat tips over in the heaving seas, and you drag yourself to shore on the crunching beach of some unknown island, you experience a slide show of the images of ontology that have obsessed culture for two and a half millennia: beings are like boats on an ocean, pebbles on a beach, islands in an archipelago. At some point any such skerried being, perhaps forced to question their essence due to external pressures – am I a human, a barbarian, a slave or a worthless dog? – looks to other lozenges of beings for points of comparison. Being as such becomes a being among beings, and the nomos of these beings, their arrangement, distribution and organization, becomes their polis at the same time as it becomes the second degree of ontology: multiplicity. Once more Badiou reminds us that ontology consists solely of the counts-as-one as a multiple among multiples and, as if heeding his call, slowly the survivors muster on the beach around you, awaiting some kind of state-sponsored intervention back into some kind of mutually held identity.15



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A part of you is ashamed of the sodden assemblage you make. You are far from the vaunting nomads you so admired in Deleuze, but then again he was clear that the nomad is very different from the migrant. What was it he said? The nomad has a territory; he goes from point to point across a space he owns. These points are not destinations but relay points distributed across his territory. The migrant, in contrast, goes from one point to another in pedestrian fashion. Migrants don’t own their journey or the territory of their transit.16 A point so true of the multibillion dollar and highly arboreal migrant trade, with its own routes, rules and currency, you wonder why no one has ever remarked upon it before. Migrants move across borders from one kind of territorialization to another, while the nomad is he who does not move. The migrants leave their homeland, but nomads never leave because the nomad is their nomos, their distribution on this earth. They don’t cross borders, borders cross them. This is a point made by Nail’s Deleuzian study of the figure of the migrant. For the humans, through their history, migration appears to be the norm. That we think otherwise is the result of centuries of sedantarianism.17 Looking at the misfits around you who only see this beach as something to exit, the sea as something to survive, ‘These are no nomads’, you conclude in disgust, yet you stay put and wait with them. When a being finds itself one among many, then the limit of its being becomes a circular boundary which is effectively a border your subjective need for singularity polices. And, thus, you become a state. You are you, not one of them. At the same time, certain logical demands of singularity coupled with narratives of subjective being also command you to find commonalities with those others, modalities of relations, formations of comparative identity based on presupposed differences. At this point the limit which has become a boundary is also transformed into the aporia of the crossable-uncrossable frontier.18 How can you sustain the plenitude and closure of your singular being through journeying out into an environment of others with whom you not only share commonality but whose differential commonality with you is a determining factor of your being? From a secure territory or state of being, for said state to define itself in terms of borders as the state such as it is, it must migrate to other states to establish this comparative difference of the one vouchsafed by relationality with the many. It is an ontological necessity with a political and historical moment, the so-called Westphalian system of European sovereign states. And while this system remained dominant as a political imaginary and sporadic reality until the end of the past century, it is no surprise to a philosopher that it ultimately foundered, for the ontological problems of this transnational juridical proposition are legion. For example, a national boundary must be closed and yet be passable. At the same time a limit on a being, to be established comparatively, must become a boundary with another being, meaning

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issues of territorialization such as scale and comparative kinship become pronounced. Can this state find common boundary with its neighbour with no remainder? Historically, until the foundation of the European Union (EU), the answer has been, for Europe at least, no. This, for Derrida, is the ultimate definition of the aporia, when a state is asked to form a boundary with that whose shape and size it cannot line up with. Derrida speaks specifically in Aporias of the limitation of a being in relation to the illimitable, death, but with Europe it seems the opposite is true. Europe is the deathly illimitable territory that seeks to find commonality across the internal aporias of its borders with its nation states and its exterior borders with those it touches who are not members, such as Russia and Turkey or even the United States. Yet a territory called Europe does not exist, and so the idea of finding a limit to it, or with it, is literally, legally, and politically impossible. It’s obvious to you now that not only is being an issue of borders, but every border is located both at the outside of that being and the inside. Every state has a border that is also a frontier. The border is what the law says must be its enclosed being, the frontier is what its desire establishes as future territories. It will be this problem of a disjunctive mutuality of bounding that will give birth to three fundamental international historical modes of state expansion: war, colonialism and globalization. Each of these, driven by the double aporia of state as an open border of limitation and closed frontier of expansion, has resulted, of course, in mass migration. By definition, ontologically and politically, a state will always exceed itself, another one of Badiou’s useful axioms.19 Who would have guessed he would make such an amenable travelling companion? They come for you on the beach, entering you into the hierarchies, overlays, palimpsests, false hopes and fractures of a typical migrant’s progress across Europe as they process your application for asylum. You gain first-hand experience of Europe’s borderland, a territory entirely made up of mobile, interlocking, contestable borders but which itself, as a being as such, Éttiene Balibar argues, can find no boundary, no border, no territory of its own.20 Yet the metaphysics of the border also adds complexity to the complaints of critics that borders are no longer limits between one state and another because every state establishes borders not only at its limits but also in the territory of other states, finding its own limits outside its limits. Thus, our globalized, post-sovereign nations, which we have come to realize are also post-global gradated sovereign states, while empirical and political entities, are in many ways demonstrating the unavoidable metaphysics of the state typified by the aporia. They are bounded by uncrossable borders that they must cross to securitize said borders and make them even more impermeable. They are determined by what they contain which however they outsource to other states and sell on global trade, labour and security markets. They are defined



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by their other which they exclude, the migrant or terrorist, but in doing so also include the border of their alterity within themselves through fear of the migrant, an inclusion that can, for example, in the case of Brexit, destroy the sovereign self-conception of a state’s very being. All these ideas crowd your mind as you enter the temporality of the migrant, a process of arrest, detention, diversion and reversion of the flow of movement across the contested European territories that ultimately ends up in the holding camp. CAMP It was Giorgio Agamben who first understood the political centrality of the camp when he defined it as a territorial moment during which the clarity of differentiation between inside and outside is suspended in a state of indifferentiation, indistinction and anomie. You sit for days under a tarpaulin in the rain outside Calais and ask is this really living. Then the French police arrive, burn your dwelling to the ground, assault you and demand you go and live in a freight container, and you realize that the question of living is the most complex that there is. The powerful effect of the camp means that your ontological status is problematized to such a degree that your humanity is reconstructed as a retroactive animality, over and over again. Each new event tests the limit between a human life and just living, to the point where you lose track of the difference. In a camp, your status as a human being, defined by being outside the animalistic Hobbesian state of nature, is stripped from you, and you go forward into a constructed fiction of a foundational animality: a swarm that lives in a jungle. In that the camp determines a political territory where the joint ontological questions of being and its limits are brought into stark indetermination, what the camp does is place Derrida’s philosophy of difference onto a specific territorial locale and then focus your attention fully on the aporia of the ontological limit as the central logic of all political space as the difference between your singular and common being is held in suspension. The logic of bare life is paradoxical and revealing in at least three ways for an understanding of the ontology of the migrant. The first is that the animality of the migrants is a construct of their assumed humanity, which is directly tied to their political status as citizens, which has been stripped from them. When you hear that David Cameron described you and your fellow migrants in Calais as a swarm, you realize he is verbally encamping you by removing your human life in the form of precarity and suffering and replacing it with a classic image of bare life: humans reduced to the status of mere animal life represented by the quintessence of the animal, the mass indifferentiation of the living multiple.

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The second issue is that the very ethical discourse at the heart of our dispute over migration – precarious ontology represented by the renunciation of human rights within camps lodged at the very geographical heart of the community of rights, Europe – is what allows for bare life to occur so readily these days. As soon as the rights of some citizens were replaced by the rights of all humans in the late 18th century, the stage was set for the camp to become the political nomos of our age, as Agamben calls it. Only when all humans are given biopolitical rights, of value because they are human as such not because they are English or Prussian, is it possible for the human being to be available as bare life at any moment and in any territory. The animality of the human is a construct of the illimitable humanity of the human as a replacement for the bordered humanity of the citizen. The third point concerns the inside/outside designation which remains the central ontological concern of migration and border studies. Holding camps of all kinds are to be found inside Europe’s boundaries or attached to their exterior as a powerful reminder of what we assume to be outside of Europe. These camps question the sovereignty of the territory of the state by revealing that every state includes the outside on its inside, in the form of scapegoating, biometrics and surveillance. Modern states conceive of their inside as located outside territorial boundaries, first in terms of wars with their neighbours, then, after Westphalia, colonial expansion, and now global capitalism coupled with securitization. THE MIGRATION OF FRONTIER Which brings us back to the ever-erring frontier? The globalization of the earth is an inevitable consequence of a post-territorial imperialism. There are no geographical lands to conquer anymore, but there will always be economies to colonize. Migrants are simply the displaced people of a post-national colonialism expelled from their land by what Žižek calls global apartheid caused by the political economy of the migrants.21 The reasons for people leaving their home country are multifarious, but the causes remain limited and distinctly European, the hangover of colonial rule and the modern pursuit of transnational global conglomerations. If the camp is the political nomos of our age, can the refugee become the political actor of that age? Žižek hints at yes,22 Agamben clearly believes so.23 As you sit pondering the thought that maybe your journey is over, that migration is a destination not a mode of transit, that you are not a migrant but a nomad after all, they give you the good news. Your application has been successful. You are given permission to cross the channel and enter the failed state they call, in a typical example of British humour, the United Kingdom.



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But even when given rights of asylum in the United Kingdom you do not cease to be a migrant. This is because the camp as detention space for migration has become a biopolitical space, and all borders have become biopolitical divisions that are held within your body, your humanity, your membership of a mobile but manageable population. Areas where this occurs include the conversion of peoples in states to populations to be managed, numbers to be processed, as Foucault observed in the past century.24 In this century, population control increasingly occurs in extranational sites, whose logistics and management states relinquish sovereignty over, empowering the two sides of the new post-national managerialism of the migrant economy: Frontex and Oxfam. As migrants are processed, their biometric data are taken and shared, meaning that the control of the border may begin far ‘downstream’. Just as once migrants are granted asylum, their data will still be something of concern ‘upstream’ to be used against them if there is a terror attack in Nice or sexual assaults in Cologne. While it is clear that in the various camps of Europe, an immigrant’s being is reducible to bare life, even when you touch down on the hallowed soil of the disunited kingdom, you carry the taint of the camp with you. Sandro Mezzadra and Brett Neilson call this internalization of the camp and border, differential inclusion.25 Nick Vaughan-Williams speaks, after Agamben, of a generalized biopolitical border we each bear within us.26 What they are angling for is a means of describing how an immigrant can even exist in a world where a heterogenization of global space results in a proliferation of borders due to what Mezzadra and Neilsen call, inadvertently echoing Agamben’s most recent work which they think they have superseded, the sovereign machine of governmentality.27 Or, that weird blend of national sovereignty and transnational globalized management structures that determines the nomos of our global-national earth. An immigrant can no longer be defined as a displaced citizen of a failed state forced to seek asylum and nationality in another sovereign state, because all the terms in play here are aporetic, contested, overlaid and problematic. The border is no longer at the border, Balibar declares.28 A close reading of the history of philosophy shows that it never was. What we are seeing today with a philosophy of frontiers and a metaphysics of migration is a global, biopolitical, geographical confrontation of the being of the state with its internalized impossibilities, its ontological aporias. In a sense, we are drawing a new border or frontier, between the ideas of ancient Greece and the actions of its modern counterpart. In this way, the figure of the migrant does present a possibility, as Agamben argues, for a new idea of statehood, born out of the shambles of its current collapse. Scant recompense for the migrant perhaps, but as the world hurtles towards ecological disaster potentially making migrants of us all, activating the political agency of the migrant may become the most urgent global political project we face.

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CODA: THE MYTHICAL HAPPY ENDING You are given leave to stay, and you move to a town in the northeast called Midd – les – brough. Its grim estates and windblown streets are a long way from the elegant sunlit boulevards of your home town. Days go by without any kind of conversation. People regard you with mild suspicion. One day, your front door is painted red. You are forced to buy food using brightly coloured coupons rather than pounds. They make you wear a red wrist band for a while. Then something wonderful happens. Britain holds a referendum and decides to leave the EU. Midd – les – brough votes overwhelmingly for Brexit. And you start to see the changes on the street. Asylum seekers are not the pressing problem. It is legitimate migrants from the very countries that treated you like an animal, gassed and abused you in the east and south of Europe that are now the new, despised other. It appears that there are different kinds of swarm, that the indifferent mass can itself be differentiated. Not only can the curds be separated from the whey, but also the curds can then be separated from each other and some deemed more tasty and desirable. If the immigrant carries the frontier within it as a biopolitical border, as Primo Levi showed, this internal camp will follow the same rules of any state, not least, hierarchy.29 There are bad immigrants and good immigrants and, for now, you are on the right side of the mobile, proliferating, heterogeneous, sovereign-governmental, machinic, generalized biopolitical fence. Or, as you like to call it, home. NOTES 1 See Wittgenstein 1953, 88–104. 2 See Agamben 1998, 71–111. 3 Ibid. 1–12. 4 See Derrida 1997; and Žižek 2009, 34–62. 5 See Parnet and Deleuze 2011. 6 See Nail 2015, 3. 7 See, on indifference, Watkin 2015. 8 See Deleuze and Guattari 2009, 1–12. 9 Blake warns against the divisive nature of pity in The First Book of Urizen (1977) of course, while Zweig’s Beware of Pity (2011) takes interdiction against pity for the other as the very basis of his consideration of modern ethics. 10 The impact of Judith Butler’s concept of precarity to be found in Precarious Life: The Powers of Mourning and Violence (2004) and Frames of War: When Is Life Grievable? (2010) has been felt in a remarkably wide variety of disciplines. Yet few have paid heed to Butler’s own warnings as to the limitations of the theory, which perhaps says more about our desire for a pitiable other than any fundamental onto-ethico truths.



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11 See Schmitt 2006. 12 The fascinating and surprisingly illuminating story of the Derrida family’s expulsion from Algeria is told in Peeters 2010, 92–123. 13 These ontological arguments are gleaned, essentially, from my reading of ‘Ousia and Grammē’ (1982) and Aporias. For the full interaction, see Watkin 2010, 113–130. 14 See Badiou 2005, 23–30. 15 Ibid., 89–92. 16 See Deleuze and Guattari 1992, 351–423. 17 See Nail 2015, 1–17. 18 See Derrida 1993, 12. 19 See Badiou 2005, 81. 20 See Balibar 2008, 190–215. 21 See Žižek 2016, 43–52. 22 Ibid. 23 See Agamben 2008, 94. 24 Foucault’s interventions on what has come to be called biopolitics are varied. It is generally agreed that the term was first used in the first volume of A History of Sexuality, but these days the reader is probably best off tackling the late lectures on the topic at the Collège du France collected now in several volumes: Foucault 2003, 2007, and 2008. 25 See Mezzadra and Neilson 2013, 157–166. 26 See Vaughan-William 2009, 96–129. 27 See Mezzadra and Neilson 2013, 197–204. 28 See Balibar 1998, 217–218. 29 Is there much more to be said of the fundamental rules of encampment beyond Levi’s If This Is a Man (1987), and Agamben’s reading of it (1999, 41–86)?

BIBLIOGRAPHY Agamben, Giorgio. 1998. Homo Sacer: Sovereign Power and Bare Life. Stanford: Stanford University Press. Agamben, Giorgio. 1999. Remnants of Auschwitz: The Witness and the Archive. Translated by Daniel Heller-Roazen. New York: Zone Books. Agamben, Giorgio. 2008. ‘Beyond Human Rights’. Social Engineering, no. 15: 90–95. Badiou, Alain. 2005. Being and Event. Translated by Oliver Feltham. London: Continuum. Balibar, Étienne. 1998. ‘The Borders of Europe’. Translated by J. Swenson. In Cosmopolitics: Thinking and Feeling beyond the Nation, edited by Pheng Cheah and Bruce Robbins. London and Minneapolis: University of Minnesota Press, 216–232. Balibar, Étienne. 2008. ‘Europe as Borderland’. Society and Space 27: 190–215. Blake, William. 1977. ‘The First Book of Urizen’. In The Collected Poems. Id. London: Penguin, 242–258.

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Butler, Judith. 2004. Precarious Life: The Powers of Mourning and Violence. London: Verso. Butler, Judith. 2010. Frames of War: When Is Life Grievable? London: Verso. Deleuze, Gilles, and Félix Guattari. 1992. A Thousand Plateaus: Capitalism and Schizophrenia. Translated by Brian Massumi. London: Athlone Press. Deleuze, Gilles, and Félix Guattari. 2009. What Is Philosophy? Translated by Graham Burchell and Hugh Tomlinson. London: Verso. Derrida, Jacques. 1982. ‘Ousia and Grammē: Note on a Note from Being and Time’. In Margins of Philosophy, Id. Translated by Alan Bass. Hemel Hempstead: Harvester, 29–68. Derrida, Jacques. 1993. Aporias. Translated by Thomas Dutoit. Stanford: Stanford University Press. Derrida, Jacques. 1997. Politics of Friendship. Translated by George Collins. London: Verso. Foucault, Michel. 2003. Society Must Be Defended, edited by Mauro Bertani and Alessandro Fontana. Translated by David Macey. London: Penguin. Foucault, Michel. 2007. Security, Territory, Population, edited by Michael Snellert. Translated by Graham Burchell. London: Palgrave Macmillan. Foucault, Michel. 2008. The Birth of Biopolitics, edited by Michael Snellert. Translated by Graham Burchell. London: Palgrave Macmillan. Levi, Primo. 1987. If This Is a Man. Translated by Stuart Woolf. London: Abacus. Mezzadra, Sandro, and Brett Neilson. 2013. Border as Method: Or the Multiplication of Labour. Durham: Duke University Press. Nail, Thomas. 2015. The Figure of the Migrant. Stanford: Stanford University Press. Parnet, Claire, and Gilles Deleuze. 2011. Deleuze A to Z, DVD-Video, Semiotext(e)/ Foreign Agents, Cambridge, MA: MIT Press. Peeters, Benoit. 2010. Jacques Derrida: A Biography. Translated by Andrew Brown. London: Polity. Schmitt, Carl. 2006. The Nomos of the Earth, in the International Law of the Jus Publicum Europaeum. New York: Telos Press Publishing. Vaughan-Williams, Nick. 2009. Border Politics: The Limits of Sovereign Power. Edinburgh: Edinburgh University Press. Watkin, William. 2010. ‘Derrida’s Limits: Aporias between “Ousia and Grammē” ’. Derrida Today (3.1): 113–130. Watkin, William. 2015. Agamben and Indifference. London: Rowman & Littlefield International. Wittgenstein, Ludwig. 1953. Philosophical Investigations. Oxford: Blackwell. Žižek, Slavoj. 2009. Violence. London: Polity. Žižek, Slavoj. 2016. Against the Double Blackmail. London: Allen Lane. Zweig, Stefan. 2011. Beware of Pity. London: Pushkin Press.

Chapter 14

Elements of a Theology of Secularization Anton Schütz

Lawyers are under the duty of judging – judging claims about rights. Not in their own name but in that of an anonymous and unliving judge who, wielding its own rights and using lawyers and judges to reproduce itself, passes under the name of ‘law’/‘the law’. Judges, lawyers generally, are involved in a continuous secular restaging of Pascal’s wager. This is especially true of modern positive law, which, supposedly post-theological, systematically enacts the Good News of a law that is ‘too big to fail’ – just as Pascal’s God. But a genuinely cognitive point comes into play as well. Lawyers are not always cognizant that they constitute only a small subset of those who judge. If judging is a necessary condition of law, the converse is not true: some form of judging does accompany all social communication, of which legal (lawful, rightful) judgement is only a special, privileged case. Let us risk a conjecture: (1) judging is always conjecturing; (2) the law stands under the duty of denying that legal judgements are merely conjectures, whence (3) law’s untiring efforts of providing meta-conjectural guarantees, solemnizing, totemizing, de-conjecturing its judgements and giving rise to its well-known theatrical-ritual pomp and circumstance. Mathematics and science generally do not work without conjectures. But the legal public is not satisfied with judgements being ‘merely conjectural’. It charges a surplus duty: judges must pass off their mere conjectures as more than mere conjectures; conversely, it pampers them with transferential love by supposing their knowledge of the law and their full loyalty to the law. And yet, legal history’s lucida intervalla, its least obscurantist moments, have ever been those in which lawyers had been aware that conjecture is unavoidably omnipresent in the genesis of any judgement, legal or otherwise. This is the wager that will be taken up on these pages. However, instead of pressing on distinguishing legal versus other judgements, I will trace Western 235

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Christianism and its geohistorical role, conjecturing that it extends to all walkways of legal and institutional life, also and especially beyond the remit of ‘religion’. 1 Ask about Christianism and you will be told that it is a religion among other religions. Ask now about religion and you will hear that, for a large part of the Western population, the appropriate mention to fill into the relevant box is ‘Christianism’ – whether taken in itself or understood as the sum of its subdivisions, confessions and denominations. And – Jesus! – they are right, as well! For both terms relate to each other like the recto and the verso of a sheet. On one side, the genre or class to which it belongs: religion; on the other, the identifying proper name of each singular religious community. There are of course very many such sheets. Western Christianism (despite its vertiginous internal diversity) is classified as one of them. The individual’s right to practice a religion supposes that religions be treated equally: this alone fits the equal treatment of all religions, thus fitting the rule of universal human rights. It so happens that it also counts among the major modern institutional achievements. Simple. But what complicates things is that the universalism that calls itself confidently-hygienically ‘modern’ has its specific genealogy and conditions.1 Whether as religion or as ‘way out of religion’ (Gauchet 1999), Western Christianism has emerged, within this particular geohistory, the one with which we are stuck, as a thing of its own kind – a class of its own, not a member of a class. The internal meta-religious surplus, that singles out Western Christianism and makes it illusionary to classify it as ‘a religion’, demands a learning effort of a new type, in order to deal with the trans-religious universalism it has pioneered. This rules in, not out, that Western Christianism is indeed a religion, a fact that is widely witnessed by its genuinely religious themes, dogma, rituality, community, and so forth, and by the social form Church, not to forget the numerous Churches to which diverse Christian confessions have given rise, some claiming an uninterrupted continuity since their inception almost two millennia ago, others preferring to locate their roots in one or the other more recent reform movement. Such divisions prevailed in 16th- and 17th-century religious conflicts and settlements. They have lost their virulence since, and nothing requires more historical imagination today than to gather what the coincidence between religious and political maps, as epitomized in the Westphalian maxim cuius regio, eius religio (the country’s religion is that of its ruler), actually meant at the time. Also, the gap between religious believers and those who aren’t has lost its relevance; it no longer



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functions as a person’s key identifier. Religion barely ranges in the top region of the shared assumptions, the norms, the ‘dogmas’ (Legendre), that structure current subjectivity at least within the Christian–post-Christian realm. Everything looks as if Western Christianism had been unique, perhaps in creating the world religion par excellence by announcing its Good News, but surely in providing a religious rationale for the coexistence of the religious and the non-religious (see the ‘Give Caesar what is Caesar’s’ of the New Testament) and in thus allowing religion to take a non-total role, in founding and hedging that model of a detotalized sociality that underlies world society as its project in progress. Yet, in much the same way in which the thing ‘Western Christianism’ has a claim to be recognized as a very singular fruit on the tree of the history of religions, the concept ‘religion’, as an organizing, indispensable part of its institutional vocabulary, has such a claim as well.2 But here again, admitting the problem at the heart of the concept of religion leads one into trouble zones, as it threatens to conflict with basic assumptions about religion and, especially, ‘all religions’. The hopeful idea that the term ‘religion’ can be unproblematically used as referring a homogenous class of objects gives legitimacy to the habit of respectful ignorance of any religion in particular, but, precisely for this reason, enjoys widespread secular respect in view of the universalist surplus that it allows to generate to the greater glory of smooth, often astonishingly self-contented, liberal and neo-constitutionalist decision routines. It serves as indispensable underpinning of secular post-religious societal management, but it also claims to do ‘justice’ to religions. It would be difficult to find a closer non-financial equivalent of a Ponzi scheme. Religious communities are depositories of events and contexts, functions and meanings; each and every stage in their history has subsequently been reset, transformed, overwritten, in short, subjected to 1,001-fold corrections and oblivions. This makes of a religion an object of reduced or zero negotiability and tends to transform secular solutions into religious traumatisms programming vindictiveness. 2 Over the past few decades, three scholarly approaches have launched, in Europe and in the United States, ambitious inquiries into the fate of Western Christianism. Overall, they focus more on the history of its first and most recent eras, less at the age that stretches, say, from the emperor Constantine to the reformer Martin Luther. Furthermore, all three approaches have their roots in different academic disciplines and, partly, geographic locations. Also, they are dealing with religion, not dealing in religion – they do not offer

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truth claims, world views, programs, and so on. Rather than to established consensuses, they refer to thematically defined ongoing debates. One of the three debates that will interest us is that between a robustly modernist politico-historical vision of Western Christianism as harbinger of post-religious modernity and a far subtler post-Derridean suggestion of what a Christianism after secularization would entail. Marcel Gauchet3 and Serge Margel4 observe Christianism, respectively, politically as the religion of the way out of religion (Gauchet 1999), and philosophically and anthropologically as the global-historical anomaly of a religion, not commanding, yet piloting, coaching, inspiring secular politics (Margel). Since long, Christianity has ‘done with’ the unitary, religion-commandeered common account of the religious and the profane. Rather than to the role of a bulwark, a war machine against the impious encroachments of secular power, Christianism, right from its origins, has laid claim to another role: that of a pioneer of the coexistence of the sacred and the profane and of a laboratory of the possibility of a (non-)relationship (=indifference) via division, difference and differentiation. By means of auto-limitation and despite major setbacks – and well before what is usually called ‘Enlightenment’ – it enabled itself and the societal totality in which it evolved to usher in forms of collective existence founded on the image of a ‘foundation-free’, anti-monolithic, durably provisional social space. Following its trace, both the social scientist Gauchet and the philosopher Margel point to Christianism’s immemorial and unescapable entanglement with the pas-de-deux of the post-religious and the post-secular. But while, for the first, Western Christianism ultimately programs society’s politicization, the second foresees a path leading out of politics as well as out of religion, out of the realm of Durkheim’s social bond and into ever new zones of further loneliness or utter individualism. The second group of discussions places itself closer to theological issues properly speaking than to commitments about or for (or against) religion. Central here is Giorgio Agamben’s double repeal of Carl Schmitt’s political theology and of its rejection by Schmitt’s former friend, the catholic theologian Erik Peterson. Agamben focuses on oikonomia, a topic downplayed concordantly by both authors. Oikonomia’s theological role is essentially that of an alternative to the traditional old-European narrative of God as a powerwielding sovereign. It so happens that the Christian theology of power is split between a position of all-powerfulness, creation-theological and sovereign and a redemption-theological void of power, an ‘all-powerlessness’ as epitomized by the Christian saviour’s infinite helplessness, helpfulness, responsibility – his being ‘in charge’ to the point of giving himself away. The divide goes straight through the doctrine of divine potency, with a power-holding God on the one hand and, on the other hand, radical Christology with its sub-theme of self-exposure without reserve or limit. That Agamben’s earlier



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studies on bare life provide the framework of this transdisciplinary theology is obvious. But the field is bipolar – divided into sub-disciplines, on the one hand eschatology, the doctrine of the last things (and of the ultimate state of exception programmed for the end of times), on the other hand oikonomia, the routine that extends through the present time-before-the-end and that interprets God’s government as the upholding and management of creation, the busy and perseverant care for its sustention. All of them are forms of the dogma and theology of the Holy Trinity. The Trinitarian creed, born out of paralysing and conflict-generating religious and civil perplexity, cures the limitations of the Creator God (an individual), by the singular means of reshaping God himself in the model of a household (an oikonomia). Historically, the improbable move has enabled both the Church and later the stateled institutional universe to cope with their administrative routines. But the East-West divisive issue of the filioque – Latin for ‘also from the son’ – that, before the turn of the second millennium, the Western Christians have introduced into the creed as defined at the First Council of Nicaea in 325 A.D., pushes the trinitarian divide another, decisive, step further. According to the filioque, the third person, the Holy Spirit, proceeds not only from the Father but also from the Son – an ‘equal rights’ arrangement between the first and the second person of the trinity, suggesting that power is no longer placed in one being but in an unending, open process between two.5 Agamben’s claim that the Western Christian tradition is structured as a bipolarity finds here its definite and extreme form, that of a religion that is at once a conservatory of being and a laboratory of action (operations, decisions, government, management).6 It is true that the history of Christianism includes sequences of personal piety and public liturgies as well as sequences of confessional irredentism and religious strife; yet, inseparably entangled with these features of visible religion, of what is easily recognizable as religion, we are also confronted with the theological components of the (discreetly self-effacing) self-management that allows modern society to cope with its daily load of – ever-contingent, often threateningly urgent, mostly crisis-imposed – challenges and duties. This managerial function is, we should argue, just as close to the heart of ‘Christianism’, as are its technically religious dimensions. 3 The third group of relevant scholarly approaches is of a rather different nature. It presents a paradigm that is peculiar to the religious sciences in the United States and responds to a specific historical-political situation. The ‘American revolution’ (not a revolution properly so called, according to

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Jean-Claude Milner) has produced a very properly so-called revolution of way-of-life–related matters, which tend to include, paradoxically enough, those of religion and the religious sciences. The ensuing distance between the U.S. and European approaches to religion relates less to topics or even specific claims; the subtly yet decisively difference-engendering feature is located in the backdrop and the context. While for the Europeans (Gauchet and Margel but also Derrida and Agamben), assessing the bimillennial Western episode in the history of politics and religion is predicated on a loose Western identity which, straddling the Atlantic, connects the first centuries of the first millennium CE to the last of the second, American discussions are grounded in a different conception of ‘Western identity’. European-style historical approaches, in comparison, boil down to the effort of integrating historical sequences and events into a narrative of genesis. There are formative and less formative periods, classical eras and times of decline, but, no matter the entity or identity whose history is told, the essential preference is that of admitting a continuity that transcends any fiction of absolute beginnings. In the view typically practiced on the other side of the Atlantic, on the other hand, what is centre-staged is less the story of an endless and beginningless genesis, than rather that of what happened from a single, structure-giving event onwards – what is called, classically and biblically, an exodus, while including its remakes in later times. Exodus narratives do not come for free. The capital role of the motive in the producing and handling of the identity of the United States is analysed in the work of religious historian Jonathan Z. Smith (Chicago). Smith’s inquiry relates to the correspondence of John Adams and Thomas Jefferson, the second and the third presidents of the United States, respectively, at the end of their lives (1812–1826), about the necessary restoration of Christianism ‘to the primitive simplicity of its founder’ as well as the ‘euthanasia’ for what Jefferson called its ‘Platonic form’, a notion which here represents old-world Christianity.7 The gesture is that of judgemental rigour. Yet the culprit is not one particular confession; they target less Roman Catholicism (although that as well) than old-European politico-cultural attitudes in matters religious. Smith’s study centre-stages the 17th-century polemical term ‘PaganoPapism’.8 His point – which has become widely influential among religious scientists since – is political: outlining how the anti-‘pagano-papist’ polemic results in supplying a large number of compassing themes and configurations, such as humankind, civilization, modernity, with genealogical roots that coincide with the enlightened U.S. exodus from dark Europe. The resulting profile of U.S.-protestant religious-cum-academic doxa and ‘identity’ is marked – as Smith eruditely shows using numerous examples from the entire time span linking the 17th and the 20th centuries – by a subtle but undeconstructible claim to an ‘incomparable’ U.S. superiority.9



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Further deepening the issue, Brent Nongbri reopens the file of the concept of religion identifying it as a Christian invention from early modern times.10 His question is what can be accepted, indeed perceived as ‘religion’, once the term is understood as both the principle and the fruit of a protestant or secular-protestant projection. Karl Marx’s claim that religion is ‘opium for the people’ is invoked: Marx understands Christianity and religion as exchangeable.11 Nongbri focuses on Christianism from the angle of U.S.protestant normalcy and the politics of its international echo, that is, the act of rejecting and disowning the idolatrous corruption that, it claims, is ingrained in old-world Christianism is central here. The ‘leaving behind’ gesture determines the identity of one side and is set to condition the identity of the other one. An exodus motive always supposes some Egypt-equivalent as its biblical supplement. Nor is it difficult to explain in this light, why Derrida’s fascinating coinage ‘globalatinity’12 did not immediately succeed in being taken up by U.S. academic discourse. Latin smacks of corrupt Rome, corrupt Roman Christianism, those dark powers against which the freedom and independence of the United States had precisely to be conquered – Da Vinci Code and other products of the kind boil down to the restaging of an old paradigm of religious history.13 A God of genesis is different from a God of exodus: the first entails an agenda of compassing integration, the second an agenda which, starting later, founds the relevant historical chapter by rejecting into nothingness everything that happened before. ‘Globalatinity’ refers to the first model, the anti-pagano-papist model to the second, to its sudden beginning in time, based on the rejection into dark prehistory of everything that had happened so far. ‘One of God’s other names is Big Bang. Sometimes, when she prayed, she said “Dear Big Bang”, and she was half certain that God enjoyed the inside joke’, in the words of a recent U.S. short story.14 The complex twofold history of the Western-Christian-secular institution entails a geopolitics that divides. ‘Globalatinity’ rings a bell wherever the Latin still epitomizes, be it from far, an unbroken ‘Roman’ power-history, it sheds its light on the worldly realm of Catholicism, however secularized. In this sense, by dint of its sheer presence, Derrida’s coinage and teaching perform a European criticism of a fundamentally European historical feature. In its prevailing U.S. understanding, on the other hand, religion is precisely not the site of the glorious expansion of Latin roots: it is, on the contrary, the theatre of the severing or cutting them, in the name of greater purity, superior legitimacy, victorious absoluteness. The anti-‘pagano-papist’ affect stages a protestant-secular strategy; as Smith shows, even today the religious sciences deal with it at the price of contributing to a dispositive of protestant self-apologetics. Smith offers a U.S. criticism of the founding myth of U.S. nationalism. If Derrida’s reference to ‘globalatinity’ exposes the etymogenealogical kernel of the long continental-European empire and its worldwide

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expansion, Smith’s criticism addresses, as another imperialist reference, the ‘geo-spiritual’ mission underlying the gesture of the United States’ protestant rejection of the ‘old-world’ (the term imposes itself as being more inclusive than ‘European’) bias. If Derrida refers to a civilization’s planet-totalizing ambition in terms of institutional politics, Smith does the same in terms of a religious superiority. The ‘globalatinity’ inspired European-continental ‘school’ of coping with religious history, the ‘genesis-school’ as it might be termed, tends to integrate differences and dissidences, schisms and heresies, presenting them biographically and retrospectively in the guise of so many branches of what is supposed to ultimately amount but to one single trans-historical trunk – best represented perhaps, albeit outside ‘religion’, by the claim that the French Revolution needs to be construed as indivisibly one (see Georges Clemenceau’s remark, ‘La révolution est un bloc’; 1891). Nothing could be more remote from the protestant exodus and secession construction, as exemplified in the US (sometimes also in the UK) approaches. Where we find on the European-continental side a founding body, a massive and problematic, long and multistage ‘globalatin’ foundational object-self (and, correspondingly, the quest for a methodology conducive to the work of deciphering, constructing and deconstructing the gradual build-up of this body-identity), the ‘exodus-school’ heralds a founding cut – a once-and-for-good self-foundation that starts with a self-subtraction from a larger pre-existing entity, with an act of parting from (and occasionally repudiating of) a pre-existing compassing unit. What ‘founds’, according to this ‘exodological’ (and not: methodological) strategy is not a historic succession of self-shaping, fate-sculpting events; it is a single initial divisive action: the self thus obtained gains its identity courtesy to the recoil of the compassing unit it leaves behind. The model has been probed repeatedly – examples would include the early modern English Common Law nationalism of the 17th century, the political sequence leading to the American declaration of independence, not to forget – though ‘as a farce’ – the current Brexit fever. It might well have stronger claims to strike the most relevant distinctive feature of the global secular West than Derrida’s ‘globalatinity’-reading. 4 It will help at this juncture to have a side glance into one of the more regularly ploughed fields nearby the theme of this inquiry. Early modern comparative European institutional history hinges on the gap between a Roman-law-type model, where the subject is what in law is called a body (Foucault, in conversation, preferred to speak of a ‘belly’ [bide]), the resulting substance or



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embodiment of a long genesis and a Common-law-type model where everything turns, not around a body but around some deed or series of deeds, and starts with a self-enacted split, cut, exodus or simply exit, that it occasions and repeats. An undecidable institutional dimorphism that, remindful of the no less undecidable philosophical one between knowledge-centred and willcentred metaphysics, allows to perceive that both ‘strategies’ have their roots in, and are hedged by, the same institutional dispositive. The dimorphism triggers a never-ending tiebreak. But it also allows to gauge the trans-religious viability of this Christian dispositive, which structures a society today since long emancipated from its religious institutional foundations, suggesting that identifying the effects of Christianism as exclusively religious misses the point.15 Rather, following Margel, Christianism has given rise to a crisis of the social institution that is still ongoing, a lifelong crisis that extends back to its inaugural communications. The crisis needs to be, not enclosed in the precinct of ‘religion’, but analysed in terms of its anthropogenetic impact. Different from the times of what used to be termed the ‘Western Take-Off’, it conditions today social evolution on a cross-culturally extended planetary level. The description of Christianism in terms of religion alone clashes with the methodological wisdom that to describe a historical phenomenon in terms that owe their existence to that same phenomenon is risky; it also clashes with the present state of Western Christianism, which transcends that of ‘a religion’. Consider now the disparity between (1) the extent to which Christianism looms large among the factors giving rise to a Western social model of nearunlimited global aspirations and (2) the limited number of confessing (or even admitting) Christians. Through the gap between both falls an instructive light on the aporias involved in figuring the Christian-secular space. Can the mathematician Möbius, inventor of the much-quoted Möbius strip, be of help in dealing with them? The strip shows that the other side is never at safe distance: there is at every point an upper side and an underside, yet following the strip lengthwise, they switch or, rather, cross. And this does offer a fundamental lesson as to the relation religious/secular. Modernity unfolds in secular space; it often prides itself to have evaded the religious for good. Möbius, on the other hand, would suggest that secular space always and inseparably carries religious space as its other side. Indeed, the Möbius strip offers the topological model of the type of space in which the specific Western Christian dynamics can evolve. But Möbius applies as well to the Roman distinction of religion and superstition, which has a definite genealogical link to the two-pronged Christian roadmap of the ‘true religion’, Christianization of power and de-institution (or dis-empowerment) of religion. Per Serge Margel, the history of Christianism, the very notion of a salvation history, is a double crisis: a crisis of

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the institution and a crisis of the critique of the institution.16 But this double crisis – not to mix up with a conflict or a compromise between, say, receding imperial and victorious Christian religion – espouses itself the form of a Möbius strip, showing the foundation of Western Christian authority based upon an institution in crisis and a crisis as institution. As we know, the crisis-cum-critique set-up will eventually take up the enlightened European form of a critique of religion, itself overshadowed, today, by the exogenous-not-so-exogenous issue of Islamic ‘identity’ and the anti-religious reactions it provokes. Yet, European 18th-century thought, not only in what now passes as ‘Christian Enlightenment’17 but also in its openly and ‘classically’ anti-religious wing (with its clamour of ‘doing away with the infamous thing’, i.e., the Church), merges with the anti-superstition affect inherited from Roman religion and re-enforced by Christian heresiology. In the scheme of the Christian crisis of institution and institution of crisis, Christianism’s self-constitution is unfolded and repeated under constantly changing travesties. Re-enacting the apologetic militancy of its religious formula against an unending series of foes and superstitions, the Western Christian narrative consistently and continuously, if unadmittedly and anonymously, ‘Christianizes’ the world, even where officially it deChristianizes – secularizes, naturalizes, rationalizes – it. The split between re-asserting its self-definition as vera religio and its definition of other cults as religions tout court stays in place, undisturbed by the most radical inversions of content. 5 Yet, questions such as these come up at a time when, in the wake of a bimillennial cycle of planetary Christian diffusion, the paradoxical image of a process that boils down to its own efforts of dealing with its own consequences has captured world society – giving rise to the conjecture that the effective challenge of modernity’s present stage lies in the lack of processtranscending politics. More observers admit today that Christianism’s oikonomia mode, in other words, the space assigned to the management of the unwilled-unwitted effects and consequences triggered by the long era of flourishing of the political mode, needs to be understood as a historical formation of its own kind. Contrary to Carl Schmitt’s teaching a century ago, secularization refers increasingly to the continuation of politics with impolitical (epigenetic, oikonomic, managerial) means, while the resulting collateral world, constituted by a mesh of interlinking chain reactions, allowing for ever more complexity to unfold, allows of ever less ‘governability’ – definitely less than the discourse of politics continues to promise. This



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question, too, leads back to its theological infrastructure. The ‘needy’ image of creation as a household or oikos forever at the critical brink of succumbing to environmental stress, has received its Christian accreditation under the heading of redemption theology, a theological branch that elevates the slavish, self-sacrificing duties of coping and handling ever new ‘challenges’ to a rank without equivalent in other religions. Western Christian exceptionalism, properly speaking, resides in the fact that one compassing oikosmological account, one image of God’s government of the creation drawn in the form of a vast arsenal of operations, organization/management schemes and action patterns, is set up by creation-theological and redemption-theological elements. Yet – and this tends to escape observers still using the post-Lockean conceptual telescopes, which travesty even second-millennium Western Christianism as being ‘but a religion among others’ – these patterns persist even unplugged from their religious base. Whence the urgency of an alternative perception, operative within and without religion. Such a new vision would first of all need to be perfectly indifferent not only to religious confessions but also to the difference between those confessing a religion and those who are not (or not yet and/or no longer) ‘religious’ – and therefore particularly exposed to the temptation of wrongly identifying themselves as ‘no longer Christian’. Only such a reformed vision can provide an access to Western Christianism’s unparalleled and unrelenting historical career, let alone to the mutual presupposition of a religion of incarnation and the emerging of a profane sphere.18 Examples of such a vision are announced in the writings mentioned so far. A further critical example is provided by the apparently clear-cut distinction offered by late 20th-century theory of society, between communications and consciousness.19 Niklas Luhmann interpreted the advent of modern society not as the long-embattled result of political intentions or wills, commitments, preferences or choices – not, for instance, as the effect of a declaration of rights or of the French Revolution at large – but, in a rather hegelian mode, as the comprehensive fallout of a colossal number of continuously happening mini-events, called ‘communications’. The evolution of society is the precipitation of these chance events, not the fruit of a consensus of consciences/ consciousnesses. Luhmann’s ‘de-authorization’ of any ‘concept of action’ (or consciousness) and his refusal to conceive society as the product of a collective will have been widely rejected by the rather self-interested consensus of those who prefer to see politics as the manufacturing of consensus. Be this as it may, his strict distinction between the two sense/meaning-processing agencies, communication (social) and consciousness (psychic), prompts another type of questions: Just how resilient is this mutual indifference? Can the psychic conditions of social communication be taken for granted, especially under particularly stressful conditions, or are they in need of constant

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‘hedging’? Do Margel’s notion of Christianism as crisis of the institution/ institution of crisis and Luhmann’s mutual indifference of consciousness and communication offer two aspects of one common problem? 6 The Enlightenment ideal of a universal religion without institution, treated in a famous historical study, is today translated into less ‘confessionalist’ perspectives.20 The militant and enthusiastic religious claims of the 17th-century heroes of Leszek Kolakowski’s Christians without a church, are unenthusiastically echoed by Margel’s deinstituting vision. ‘Individual religions, up to the limits of the world: this is the testament of Christ’.21 Using the image of a road out of religion into politically organized society, Gauchet’s view of Western Christianism suggests a way to modern secular politics paved with Christian intentions. Margel’s notion of Christianism as an exchange of mutual subversion between the religious and the profane, thus as the unavoidable destiny of a society that is both consummately anti-religious and secularly Christian (at the price of desocializing, even depoliticizing Christian existence), offers a very different forecast of the shape of any coming Western or geo-bourgeois society. Margel understands Christianism in our times not as a primus-inter-pares among religions but as the transformation of religion as a social, public theme, into the image of an intimate (meta-) religion of the desocialized individual. In all three views, Christianism, the religion that has given rise to the category ‘religion’, is precluded from counting as a religion among others. Applying the concept of ‘a religion among others’ to Christianism generates two types of effects. The first is an effect of the sort that any categorical or taxonomic framework exercises over its subjects. Suppose a diversity of subject populations each following its own cult. Suppose now that an account of cults and divinities is established. The account does not add anything, it does not omit anything, it only counts and accounts: how should it affect the field? Wrong. The operation of ‘taking everything into account’ transforms the field, simply because it creates it as one field. This is what happens to religions when a ‘concept of religion’ emerges. A new multiplicity is instituted as one. What had been diverse cults, each with its collective of cult members, find themselves relegated to the level of a mere infrastructure, overhung by a more potent perspective, the class of cults or religions as created by the new definition. The unitary operation of accounting for a plurality of cults or religions gives rise to a new class. But simultaneously, it also carves out a new position of the operation’s agent. This is the second effect. On the object side we have cases of ‘religion’, of evolutions that take place in the field of



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‘careful and repeated attention’ (religio, according to an old etymological derivation), but they become readable only courtesy to a specific operation. This intervention, which includes the item into the newly posited category by integrating it into the class of religions, neutralizes it by downgrading it, quantité négligeable, to the rank of coequal members of a homogenous collective, or to what might be called a religio relecta, a ‘carefully observed religion’, an object of study. All counted religions are, with one single exception: namely, the one that delivers the account. There are in other words many religiones relectae, but only one religio religens, only one ‘carefully religion-observing religion’, which has taken up the charge of delivering the account of the others. In this fashion, the category (!) of religion becomes the great equalizer, socializer, homogenizer of an otherwise problem-ridden coexistence of competing, discrepant but unrelated cults. The operation accomplished by the religio religens, the one religion that observes and relativizes all the others, achieves for itself a new status. By its own operations it defines itself as the one, single meta-religion. A new mapping, a new habitat, a ‘new earth’ is thus created.22 Mind that the decisive threshold here is no longer ‘monotheism’: the difference between the decisive new ‘one’ no longer refers to divinities worshipped and not even to the multiplicity of cults. It refers to the divide between the one counting religion and the numerous counted ones, where the first refers to one case, the second to normalcy. The first, Christianism – Western, modern – is the religion that has given rise to the concept of religions. Before the count, cities, city states, states, each came complete with its gods and cult centres.23 Gods, narratives, sacred objects or places, and so forth constituted not a supplement of a community: they were the community. Neither did this refer to communities alone. Families and, sometimes, persons had been in the same case. Alexander the Great was, through his mother (née Molossi), directly related to Poseidon, indeed, albeit more remotely, to Chronos. Nor is the evidence limited to the lofty levels of ‘mythology’. The differentiation into a divinity-related and a profane world, and its result, the emerging gradation within everyday urban life, unfolding from more or less religion-related items, including things (res sacrae, res religiosae) to profane ones, embodies, together with Roman Private Law, the first proto-modern achievement of the Roman Republic.24 7 In what is classified, by the Western history of religion, as early postConstantine Christianism, both politico-religious registers, that of keeping identity and that of provoking differentiation, have been subjected to

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continuous intensification. Not only has the temptation of outpaganizing paganism (a popular field of historical research today), given rise to Christian saints replacing earlier divinities, and to Christian miraculous intercessions replacing feats of divine healing, Christianism, during a century or two of its honeymoon as imperial religion, has brought forth a pioneering social science that announced major politico-theurgic benefits, by means of a new ‘art of governing’ (Foucault). The Christian message functions like an engine (machina), able to give rise to an updated and improved version of the social bond of love, revolutionizing social existence.25 A feat of social engineering that has its moorings in the new religion’s ambition to officially reject the old (while unofficially repeating it). But there was another innovation. It consisted in authorizing comparison. The environing social fabric, the element within which Christianism develops, is interwoven with the threads of countless politically heavy-weight cults and religions. One important factor in Christian teaching acting in favour of authorizing comparison (in addition to rejection and substitution) of other cults, is its uncoupling from genealogical legitimacy (despite the famous genealogies of the New Testament). As long as the prevailing Sitz im Leben of religion was defined by genealogy, as long, in other words, as a religious community was something one was born into, the very expression of a true religion must have sounded like a mistake or a solecism, a joke or a misplaced language game. In order to make sense it must rely on a whole machinery of new intellectual moves. An important part of the Christian revolution consisted precisely in ascribing truth to their religion – in becoming a true, it becomes an essentially comparative religion, une religion comparée (Margel). When this step occurs, the ideas of juridification, of institutionalization are not yet in the cards. Individual biographies still are bathing in a religion that limits itself to solemnize decisive occasions, a person’s birth and death, important changes of status (rites d’initiation), and so on. Under post-genealogy conditions, the key to having an identity or a socially valued life becomes lifelong self-subjection. Together with the truth of religion, what is centre-staged is the religious subject of truth, giving rise to the emerging – as an unintended, mere collateral consequence – of a wholly new landscape, made of duty, discipline and juridification. Characteristically, during the very first centuries CE, the defenders of the timelessly established Roman religious traditions accused the nascent movement of the christianoi of being sectators of a new superstition. Once the Empire had adopted Christianism, heathen religions, accused of being ‘merely external’, deprived of a subjective anchor, enlisted as new candidates and culprits of superstition. For even the claim that Christianism is the true religion, vera religio (see Augustine’s capital treatise under this title), has not ‘been there since the beginnings’. It might have been invented by the Christian polemist Minucius



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Felix’s (second century CE) claim that the real superstition was the Roman religion. Since this, the christianoi, subjects of the vera religio, had achieved their conversion from culprits to judges of superstition. The transnational constitution of Christianism has become its logo: being a christianos cannot (must not) rely on ethnic membership. To be a christianos is – looking at Greeks and Jews – to belong to a third kind (triton genos, tertium genus).26 The turn to true religion, to a religion that defines itself as a matter of choice, not origin, gives rise to the revolutionary birth of the Western individual, inside and outside religion. This basic anthropogenetic deal persists into our days. There has never been, or will ever be, a ‘postmodernity’ that could reverse it. NOTES 1 Gregor Ahn writes: ‘Studies devoted to “religion” often start with its etymological derivation from lat. religio. Correctly so, if often coupled to the recurrent misconception that the term “Religion” is also used, as a means of referring to the same realities, by other cultures. This is . . . not the case’ (1997, 513; my translation). The lack of equivalents for ‘religion’ outside Christian and secular post-Christian contexts makes the term so problematic in fields like religious history and cultural sciences. 2 There is a vast variety of different meanings taken up by the term ‘religion’, successively, throughout history. For one medieval example, an issue of social status, such as the fact that a person has at some point made a monastic vow, was referred to by saying that he was ‘in religion’ (in religione). 3 See Gauchet 2015, 20, where he interprets the terrorist bloodshed in the Bataclan in Paris, as a regrettable side phenomenon of the discovery of a non-Christian path leading to dereligionized modernity. 4 See Margel 2005. My choice of Margel’s study is at the expense of Nancy’s work on the deconstruction of Christianism (2008), far better known in the Englishspeaking world, yet far more modest as to its reasoning, ambition and interpretative subtlety. Common arguments exist; yet only Margel, putting Christianism’s ‘deconstruction’ on hold, engages with the question of how Christianism is a deconstruction of religion. 5 For oikonomia generally, see Agamben 2006, 2013a, 2013b; and Clam 2016, 143–227. Specifically on the filioque and on Western trinitarianism, see Diamantides and Schütz 2017, 34ff. 6 See Agamben (as referred to in the preceding note) for a historical analysis and politico-philosophical appraisal of the bipolar structure of being and operation, spontaneous and official existence. 7 See Smith 1990, 1–35. 8 Ibid., 20ff. 9 Despite ‘imposed universalisms and . . . apologetics’, Smith explains (2004, 191f), ‘it is impossible to escape the suspicion that a world religion is simply a

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religion like ours, and above all, that it is a tradition that has achieved sufficient power and number to enter our history to form it, interact with it, or thwart it’. 10 Not only his very topic Before Religion shows an uncompromising methodological choice at work, but Nongbry also further sharpens Smith’s appraisal: ‘Religion is anything that sufficiently resembles modern Protestant Christianity. Such a definition might be seen as crass, simplistic, ethno-centric, Christiano-centric and even a bit flippant; it is all of these things but it is also highly accurate in reflecting the uses of the term in modern languages. Every attempted definition of “religion” that I have seen has implicitly had this criterion as its base. Most of the debates about whether this or that “-ism” (Confucianism, Marxism, etc.) is “really a religion”, boils down to the question of whether or not they are sufficiently similar to Protestant Christianity. This situation should not be surprising given the history of the category of religion’ (Nongbri 2013, 18). 11 See Milner 2014, 83–105. 12 See Derrida 1998, 1–78. 13 One might assume that, insofar as Rome has functioned as a paradigm of politics, a symbol of global power and a model of Empire, it relates to a different period and is enshrined in a different section of phantasy than that of Roman Catholicism. That the study of religion is also the (only) humanistic field in the American Academy, whose subject matter is explicitly governed by the U.S. Constitution, is discussed in Smith 2004, 375–390. 14 Sherman 2017, 48. 15 See Margel 2005, 63–100, unfolding the Christian category of the religious. 16 See ibid., 98; my translation. 17 See Rosenblatt 2006. 18 See Brague 1992, 209, taking up a notion that had been developed earlier by Alexandre Kojève in his inquiries into the unfolding of Western science, in opposition to its Greek model. 19 See Luhmann 1995, 210ff. 20 Kolakowski 1987, ch. 1. 21 ‘Les religions individuelles aux confins de la terre, c’est ça, le Testament du Christ’ (Margel 2005, 167ff). Individual religions, drawing the portrait of Christianism present and to come, are the result of the deinstitution of shared, en-traditioned, instituted modes-of-being of religion. The modern de-institution of religion is preceded by the long history of its de-ritualization, demediation and so on. Mind that there is little in common between the modern matter of individual religions and late antique personal religion; see Festugière 1960, who refers to the believer’s sensibility and ‘self-abandon’ to one personal, charitable god. Individual religions refer to, but exceed, the self-institution of the durkheimian individual. 22 See, for an exemplary study of a (different) world-changing innovation, Sacerdoti 1990. 23 ‘We have no right. . . – says one of the path-breaking writers of what will later be known as Social Anthropology – to assert that the worship of gods preceded that of kings . . . Perhaps there never were any gods without kings, or kings without gods’. Arthur Maurice Hocart’s theopolitical conjectures (1927, 7) add a further item to the list of methodological intuitions which, having emerged as side-products of



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social-anthropological and ethnographical other observations, typical for the colonial age, will achieve their life cycle less than a century later and under postcolonial conditions, as indispensable instruments of Western/global self-observation, self-description and self-archaeology. See the recent work of political theologian, egyptologist and religious historian Jan Assmann. 24 See Thomas 2004, 40–73. 25 According to Augustin, letter 55, CSEL, vol. 34/2: ‘[S]cientia tamquam machina quaedam, per quam structura caritatis adsurgat’ (‘a science that would function as a type of device, by means of which a/the structure of love may be elevated’). See Fischer 1967, 85–93. 26 See Sachot 1985, 95–118.

BIBLIOGRAPHY Agamben, Giorgio. 2006. The Kingdom and the Glory: For a Theological Genealogy of Economy and Government. Translated by Adam Kotsko. Stanford, CA: Stanford University Press. Agamben, Giorgio. 2013a. Opus Dei: An Archaeology of Duty. Translated by Adam Kotsko. Stanford, CA: Stanford University Press. Agamben, Giorgio. 2013b. The Highest Poverty: Monastic Rules and Form-of-Life. Translated by Adam Kotsko. Stanford, CA: Stanford University Press. Ahn, Gregor. 1997. ‘Religion’. In Theologische Realenzyklopädie, vol. 28, edited by Gerhard Krause and Gerhard Müller. Berlin: W. de Gruyter, 513–522. Brague, Rémi. 1992. Europe, la voie romaine. Paris: Gallimard. Clam, Jean. 2016. Le corps sans garde: innocence, oraison, délire. Paris: Ganse Arts et Lettres. Derrida, Jacques. 1998. ‘Faith and Knowledge: The Two Sources of “Religion” at the Limits of Mere Reason’. In Religion, edited by Id. and Gianni Vattimo. Stanford, CA: Stanford University Press. Diamantides, Marinos, and Anton Schütz. 2017. Political Theology: Demystifying Universalism. Edinburgh: Edinburgh University Press (Encounters in Law and Philosophy Series). Festugière, André-Jean. 1960. Personal Religion among the Greeks. Berkeley: University of California Press. Fischer, Balthasar. 1967. ‘Tamquam machina quaedam: Ein Wort des Augustinus (Ep. 55, 39) zum Ethos der Liturgiewissenschaft’. In Miscellanea liturgica in onore si S. E. il Cardinale Giacomo Lercaro, vol. 2. Rome/Paris: Desclée & Cie, 85–93. Gauchet, Marcel. 1999. The Disenchantment of the World: A Political History of Religion. Princeton: Princeton University Press. Gauchet, Marcel. 2015. ‘Le fondamentalisme islamique est le signe paradoxal de la sortie du religieux’. Le Monde, 23 November. Hocart, Arthur Maurice. 1927. Kingship. Oxford: Clarendon Press. Kolakowski, Leszek. 1987. Chrétiens sans Eglise: la conscience religieuse et le lien confessionnel au XVIIe siècle. Paris: Gallimard.

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Luhmann, Niklas. 1995. Social Systems. Stanford, CA: Stanford University Press. Margel, Serge. 2005. Superstition: L’anthropologie du religieux en terre de chrétienté. Paris: Galilée. Milner, Jean-Claude. 2014. La puissance du détail: phrases célèbres et fragments en philosophie. Paris: Bernard Grasset. Nancy, Jean-Luc. 2008. Dis-enclosure. The Deconstruction of Christianity. New York: Fordham University Press. Nongbri, Brent. 2013. Before Religion: A History of a Modern Concept. New Haven: Yale University Press. Rosenblatt, Helena. 2006. ‘The Christian Enlightenment’. In Cambridge History of Christianity, vol. VII, edited by Stewart J. Brown and Timothy Tackett. Cambridge: Cambridge University Press, 283–301. Sacerdoti, Gilberto. 1990. Nuovo cielo, nuova terra: la rivelazione copernicana di ‘Antonio e Cleopatra’ di Shakespeare. Bologna: Il Mulino. Sachot, Maurice. 1985. ‘Comment le christianisme est-il devenu religio?’ Revue des Sciences Religieuses 59: 95–118. Sherman, Alexie. 2017. ‘Clean, Cleaner, Cleanest’. The New Yorker, 5–12 June, 48–54. Smith, Jonathan Z. 1990. Drudgery Divine: On the Comparison of Early Christianities and the Religions of Late Antiquity. London: School of Oriental and African Studies. Smith, Jonathan Z. 2004. ‘God Save the Honourable Court: Religion and Civic Discourse’. In Relating Religion: Essays in the Study of Religion. Id. Chicago: Chicago University Press, 375–390. Thomas, Yan. 2004. ‘Res religiosae: on the Categories of Religion and Commerce’. In Law, Anthropology, and the Constitution of the Social: Making Persons and Things, edited by Alain Pottage and Martha Mundy. Cambridge: Cambridge University Press, 40–72.

Index

abolition, of imprisonment, 20 absence, presence and, 74 abstract machine, 119, 121, 126 action, violent, 186 – 87 actor-network theory (ANT), 5 – 6, 45; critical theory and, 46 – 48; infralanguage of, 46; legal critique and, 49 – 50, 53, 56 – 57; Noys on, 54 – 55; politics and, 46 – 47; STS and, 46 actualism, 54 Adler, Alfred, 139 advertising: as anthropology, 138; iconography in, 135 – 37, 142; images, 134 – 35, 141; lifestyle in, 142; marketing and, 137 – 39; metasymbolism of, 142 – 43; in modern cities, 136; normativity of, 141 – 42; as psychagogy, 142; semiotics and, 144n11; symbolism in, 139, 143 Afary, Janet, 29 Agamben, Giorgio, 3, 64, 92 – 93, 169, 229 – 31, 239 agency, 55 Ahn, Gregor, 249n1 Althusser, Louis, 14 America, 214n1 American revolution, 239 – 40 Amnesty International, 29 – 30, 35, 40n8

analogous order, 73 anamnesis. See mneme anarchism, 175 – 79, 179n4 Anderson, Kevin, 29 angels, 105 animal: human and, 92 – 93, 222, 230; nature, of human being, 91 ANT. See actor-network theory anthropological machine, 83 – 84, 90 – 93 anthropology, 7, 51, 138, 140, 142 – 43. See also social anthropology; Totem and Taboo (Freud) Anzieu, Marguerite, 158 archaeology, 65 – 66, 138 archaism, modernization as, 30 – 33, 39 Archive Fever (Derrida), 6, 63, 65 – 67, 72, 77nn10 – 11 archives: death drive and, 68 – 69; forgetting and, 67 – 72; Freud and, 72, 74; hypomnesis, 70; law and, 6, 63 – 67, 75 – 76; memory and, 68, 70; producing, 69 – 70; psychic, 74 – 75; as sources of law, 65; violence of, 67 – 70 Aristotle, 153 arkhé, 65 – 67 assimilation, 153 associations: legal recognition of, 101; in Roman law, 110n18 253

254

Index

asylum, 231 Attridge, Derek, 77n17 author, 74 autonomy, 20 Badiou, Alain, 226, 228 bare life, 92 Barthes, Roland, 167, 179n3 Bataille, Georges, 108 Bazargan, Mehdi, 27 – 28, 32 – 33, 35 – 39 beauty, 168 – 69 Beckett, Samuel, 1 becoming imperceptible, 179n5 Before the Law (Kafka), 70 being: as being-with, 107 – 8; in individual, 207 – 8; inside, outside, 221 – 23; non-being and, 74; violence and, 221 – 23. See also Dasein; Sein being-with, 107 – 8 Benjamin, Walter: on creativity, 189; Critique of Violence by, 9, 67 – 69, 184 – 85, 188 – 91, 194; on fate, guilt, 190 – 94; on Gewalt, 188, 194; on happiness, 192, 195n17; on Kafka, 191, 193 – 94, 196nn19 – 20; as philosopher, of history, 183, 193; on police, 187; on violence, 186 Berkman, Alexander, 177 – 78 Bernasconi, Robert, 200 – 201 Beyond the Pleasure Principle (Freud), 68 – 69 Big Bang, 241 biologism, 201 biopolitics, 9, 32, 51, 219 – 20, 232, 232n24 bioviolence, 220 Black Notebooks. See Ponderings (Heidegger) Blake, William, 225, 232n9 Bloch, Ernst, 183 body: of Christ, 104 – 5; human, 83 Boethius, 88 border: ontology of, 225 – 26; of state, 225 – 29 Bourdieu, Pierre, 201

Boyer, Johan, 177 Breuer, Josef, 150 – 53, 163n2 Brexit, 232 camps, 229 – 31 capital, 55 – 56 capitalism, 54 – 55, 142; penal system and, 17; penitentiary and, 19 Carson, Anne, 8, 168 – 71, 174, 178 – 79 Carter, Jimmy, 27, 35 – 36 catharsis, 151 Catholicism. See Roman Catholicism Christ. See Jesus Christ Christian Enlightenment, 244 Christianism, 10, 235 – 37, 241, 243 – 49, 249n1, 250n21 Christianity, 32 – 35, 39, 104 – 5, 144n4; in concept of religion, 241, 250n10; Marx on, 241; message of, 248; person in, 88 – 89; in United States, 239 – 42. See also Roman Catholicism Christianization, of power, 243 – 44 christianoi, 248 – 49 Christology, 238 – 39 church, 104 – 5, 236, 246 civil law, 19, 21 – 22, 24n19 civil relations, 20 CLC. See Critical Legal Conference coexistence, 150 Cohen, Morris, 101 collectives, 154 – 55 collective unity, 107 – 9 colonialism, 228, 230 commercialization, of love, 179n1 commodities, 135 – 39 common sense, 120 common world, 47 – 50, 56 communication, legal, 188 community, 101, 106, 108 compossibility, 49 The Concept of Law (Hart), 103 – 4 conceptualism, 58n27 concession theory, 98 Conference on Human Rights, 32 consciousness, 74, 151 – 53, 245



consumers, 139 – 40 consumption: as expressive, 141; of information, 123 – 24 control, 132n75; law and, 113 – 14, 132n77; as regulatory system, 124; signs of, 125 – 28; societies of, 122 – 24 corporate language, 106 corporate personality, 97, 102, 104 – 8 corporation, 83; legal meaning of, 102 – 3. See also incorporation corpus, 106 corpus mysticum, 104 – 5 cosmology, 50 cosmopolitics, 47 Cotterrell, Roger, 103 counter-conducts, 33 – 39 creativity, 189 criminality, 150 – 51, 158 – 59, 163n2, 206 criminalization, of wood gathering, 15 – 19 criminal law, 103 – 4, 203, 206, 214n9 crisis, of institution of religion, 243 – 44, 246 Critical Legal Conference (CLC), 51 – 52 Critical Legal Studies movement, 172 critical theory, 46 – 48 Critique of Violence (Benjamin), 9, 67 – 69, 184 – 85, 188 – 91, 194 customization, of all customs, 141 customs: customization of all, 141; new, 141 – 42 Darwin, Charles, 154 Dasein, 202, 204, 207 – 8, 212 – 13, 214n6 death drive: Derrida on, 69 – 70; Freud on, 68 – 69; violence of forgetting, 67 – 72 debasement, 221 – 22 debt, 24n18 deconstruction, 66 – 67, 70 – 71 Deleuze, Gilles, 224, 227; on Beckett, 1; on control signs, 125; on control

Index 255

societies, 122 – 24; on disciplinarian sign, 122 – 23; on the event, 7, 116 – 17, 130n38; Guattari and, 113 – 14, 116, 119, 121, 123; on the immanent, 118 – 20; on law, 120 – 22, 128; The Logic of Sense by, 116, 119, 122; on verbs, 117 – 18, 120 democracy, 31, 38 demographics, 139 – 40 denotation, 116 – 17, 129n25 Derrida, Jacques, 195n6, 226, 228 – 29; Archive Fever by, 6, 63, 65 – 67, 72, 77nn10 – 11; on death drive, 69 – 70; Dissemination by, 73, 76; Force of Law by, 64, 67 – 68, 70 – 71; on Freud, 72, 77n9; on globalatinity, 241 – 42; on materiality, 73, 77n17 desire, 174 despotism, 123 – 24, 130n55 Dewey, John, 101 – 2 Dicey, Albert Venn, 100 Dichter, Ernest, 137 – 38 difference, 229 differential inclusion, 231 dignity, of person, 22, 29 – 30 dimorphism, institutional, 243 disciplinarian sign, 122 – 23 disciplinary power, 17 – 19, 24nn13 – 14, 113 – 14, 122 disciplinary regimes, 122 – 23, 125 Discipline and Punish (Foucault), 15, 18, 29 disciplines, 4, 10 – 11 displacement, 156 – 57, 160 – 61 Dissemination (Derrida), 73, 76 divine will, 189 – 90 division, 224 Doctrine of Right (Kant), 19 domestic substrate, 74 – 75 double logic, of violence, 67 – 68 dreams, 153, 156 Dred Scott, 51 ecologization, 50, 59n34 economization, 56 economy, 64, 143

256

Index

emotions, 170 empty patrimony, 21 – 23 energetics, 152 English law, 106, 109n9 enjoyment, 149, 163 Enlightenment, 244, 246 eros, 169 – 74 Eros the Bittersweet (Carson), 169 – 71 eschatology, 239 essence, of truth, 209, 216n35 estrangement, of God, 190 – 91 The Ethics of Sexual Difference (Irigaray), 180n8 EU. See European Union Europe, 240 European Union (EU), 228 the event, 7, 65, 116 – 18, 130n38 excitation, 152 existentialism, 213 exodus, 240 – 42 experimentation, 119 – 20 exteriority, 73 external will, 189 – 90 fate, 190 – 94 Faye, Emmanuel, 206 – 7 fiction: reality and, 7; shared, 107 fictitious personality, 98 – 102, 104 – 6 figures, of love: anarchism and, 175 – 78; in a fragment, 169 – 72; law and, 172 – 75 Files (Vismann), 63 – 64, 73 filioque, 239 Fitzpatrick, Peter, 172 Force of Law (Derrida), 64, 67 – 68, 70 – 71 forgetting, violence of, 67 – 72 Foucault, Michel, 4; Bazargan and, 27 – 28, 33; on biopolitics, 232n24; on disciplinary power, 17 – 18, 24nn13 – 14, 113 – 14, 122; Discipline and Punish by, 15, 18, 29; on human rights, 27 – 30, 36; on illegalisms, 14 – 15, 17; Iran and, 27 – 39, 40n7; on Islamic government, 37 – 39; on legalism, 28, 37; on Marx, 34; on

mass incarceration, 22; on norms, 13; orientalism of, 34 – 35, 39, 40n13; on population, 124; Security, Territory, Population by, 5, 30 – 32, 34; on the Shah, 30; La société punitive by, 14 fragment, love in, 169 – 72 Freadman, Anne, 114, 126 freeman, 87 Freud, Sigmund, 8, 67, 160; archives and, 72, 74; Breuer and, 150 – 53, 163n2; on death drive, 68 – 69; Derrida on, 72, 77n9; on enjoyment, 149; The Interpretation of Dreams by, 153, 156, 161, 163; on jokes, 163n5; Lacan on, 155 – 56; on the other, 150; Beyond the Pleasure Principle by, 68 – 69; Studies on Hysteria by, 150 – 53; on synonymies, 154 – 55; Totem and Taboo by, 154, 156 – 57, 159, 161; on Wunderblock, 72, 74 frontier, 9, 230 – 31 Führer, 204 – 5, 207, 209 – 12 Führung, 205 – 6 futuring, 120 Gaius, 84 – 87 Garrett, Brian, 83 genealogy, 63 – 64, 66, 248 genesis, 240 – 43 Germany: factories of, 206; Heidegger on, 199 – 200; universities of, 201; Weimar, 184. See also National Socialism Gestalt, 205 Gewalt, 183 – 84, 188, 194 Ghamari-Tabrizi, Behrooz, 40n7 Gierke, Otto von, 98 – 101, 106 – 7, 109 Gleichschaltung, 202 – 6, 209 – 10 globalatinity, 241 – 42 globalization, 113 – 14, 133, 228, 230 God, 74, 88 – 89, 104 – 5, 164n13, 189, 235; estrangement of, 190 – 91; government of, 239, 245; kingdom of, 192, 195n17; as sovereign, 238 Goldman, Emma, 8, 168, 175 – 79



Index 257

Gombrich, Ernst, 141 Good News, 235 – 36 Goodrich, Peter, 168, 173 – 74, 179 goods, 136, 138. See also commodities Gordon, Daniel, 207 government, of God, 239, 245 governmentality, 231 Grigg, Russell, 157, 161 ground, 209 ground, as condition of interpretation, 114 – 15 groups: individuals and, 107; real personality of, 98 – 102, 104, 106, 108 – 9; social unity of, 99 – 100; unity of, 101, 106 – 7 Guattari, Félix, 113 – 14, 116, 119, 121, 123 guilt, 158 – 59, 190 – 94 the hadith, 37 happiness, 192, 195n17 Harman, Graham, 54 – 55, 59n38 Harris, Roy, 129n22 Hart, Herbert Lionel Adolphus, 102 – 4 Hegel, G. W. F., 192, 205 – 7, 209 – 13, 215n21 Heidegger, Martin, 191, 195n14; on America, Russia, 214n1; on Hegel, 206 – 7, 209, 212 – 13, 215n21; on Kampf, 201 – 2; National Socialism and, 211 – 12; Nazism and, 199 – 201, 215n24; ontology of, 209 – 10; on politics, 216n34; Ponderings by, 9, 199, 209; Sein und Zeit by, 207 – 8; on Seyn, 205, 208, 213 – 14 hermeneutics, 142 High Court of Love, 173 Historismus, 192 – 93 history, 31; Heidegger on, 195n14; philosophy of, 183, 193; of religion, 240, 247 – 48; salvation, 243 – 44 Hitler, Adolf, 202 – 3, 210 Hjelmslev, Louis, 129n9 Hocart, Arthur Maurice, 250n23 Holy Trinity, 239 homo sacer, 222

Homo sapiens, 92, 157, 159 Horkheimer, Max, 188 household, 37, 244 – 45 Huber, Ernst Rudolf, 204 human: animal and, 91 – 93, 222, 230; body, 83; inhuman versus, 92 – 93. See also person humanitarianism, 38 – 39 human rights: in camps, 230 – 31; Carter and, 35 – 36; as counter-conducts, 34 – 39; development and, in Pahlavi’s Iran, 30 – 33; Foucault on, 27 – 30, 36; NGOs, 29 – 30, 35 – 36, 39; of person, 90 – 91, 93; UDHR on, 32, 82 human sciences, 13 Huntington, Samuel, 31 hympomnemata, 71 hypnotism, 74 – 75 hypomnesis, 67, 69 – 75, 77n20 hysteria, 150 – 53 hysterical identification, 153 iconic language, 134 iconic normativity, 133 iconography, 135 – 37, 142 icons, 125 – 26, 128, 131n56 ideal, love as, 168 – 69, 178 ideality, 169 identification, hysterical, 153 identity: objectified, 140; social, 139 – 40; of subject, 141 ideology, law as, 14 – 15, 17 idolatry, 144n1 illegalisms, 5; Foucault on, 14 – 15, 17; internal enemies and, 22 – 23; manufactured, 15 – 16; patrimony and, 20; wood theft, 16 – 17 images, advertising, 134 – 35, 141 imitation, 157 the immanent, 118 – 21, 130n46 immanent critique, 188 immanentism, 104 – 9 immanent totality, 97, 108 – 9 immaterial labour, 131n57 impossibility, immanentism and, 104 – 8

258

Index

imprisonment, abolition of, 20. See also mass incarceration incorporation, 97 – 98, 103, 108 index, 115, 123 individual: being, 207 – 8; group and, 107; psychology, 143; unity, 109 information, consumption of, 123 – 24 infralanguage, of ANT, 46 inhuman, 92 – 93 injunction, law as, 70 – 71 institutional dimorphism, 243 internal enemies, 22 – 23 interpretation, 114 – 16 The Interpretation of Dreams (Freud), 153, 156, 161, 163 intervention, 38 – 39 Investiture Struggle, 105 Iran: Foucault and, 27 – 39, 40n7; modernization of, 30 – 33. See also the Shah Iranian Revolution, 27, 29 Irigaray, Luce, 180n8 irreductions, 48, 58n11 Islam, 28. See also Shi’ism Islamic government, 37 – 39 Islamic radicals, 29 Jakobson, Roman, 161 James, Ian, 108 Jesus Christ, 89, 104 – 5, 236 Joint Stock Companies Act, of 1844, 106 jokes, 163n5 judges, 235 judging, 10, 235 jural capacity, 98 jural relations, 13, 18 juridical capacity, of person, 89 juridical category, patrimony as, 19 – 20 juridical counter-conducts, 36 juridicism, 192 jurisprudence, 3, 53, 127, 128n2, 130n46, 173, 206, 215n14 jurisprudence-abstract machine, 121 justice, 66 – 67, 70 – 71, 186 – 87, 194, 195n6

Kafka, Franz, 70, 191, 193 – 94, 196nn19 – 20 Kampf, 201 – 2, 208 Kant, Immanuel: Doctrine of Right by, 19; on legal personality, 82 Kantian juridicism, 192 Kantorowicz, Ernst, 105 Kelsen, Hans, 89 – 90 Khomeini (Ayatollah), 30, 38 kingdom of God, 192, 195n17 Kissinger, Henry, 31 knowledge: normative, 134; ontology of, 58n17 Kojève, Alexandre, 250n18 Kotler, Philip, 137 Kraft, Werner, 194 Kraus, Karl, 188 – 89 labour, 20, 22, 55 – 56, 59n42, 131n57 Lacan, Jacques, 8, 155 – 63, 164n13 Lacoue-Labarthe, Philippe, 149 – 50 language: corporate, 106; event and, 118; iconic, 134; infralanguage and, 46; law and, 113, 162 – 63; meaning and, 161 – 62; metalanguage and, 46, 48 – 50, 58n9; metaphoric, metonymic poles of, 161; normal use of, 161; politics and, 183 – 84; pure means, 187 – 88 la langue, 117 – 19 Latin, 241 – 42 Latour, Bruno, 45, 48, 54 – 55, 59n39 law: as anthropological machine, 83 – 84; archive and, 6, 63 – 67, 75 – 76; common sense and, 120; control and, 113 – 14, 132n77; control signs and, 127 – 28; criminal, 103 – 4, 203, 206, 214n9; Deleuze on, 120 – 22, 128; English, 106, 109n9; enjoyment and, 149; fate, guilt in, 190 – 94; force of, 67 – 68, 70 – 71; genealogy of, 63 – 64, 66; as hypomnetic, 72; as ideology, 14 – 15, 17; as injunction, 70 – 71; internal structure of, 71; judging in, 235; justice and, 195n6; language and,



Index 259

113, 162 – 63; legitimation in, 186, 188, 190; love and, 8, 168, 171 – 75, 178; metalanguage of, 50; ministerial function of, 64; modern versus primitive, 76n7; as myth, 188 – 90, 193; National Socialist, 203, 209; natural, 32, 185 – 86; norms and, 66, 133; ontology of, 51, 65 – 66, 73, 75 – 76; order of, 75; persona and, 84 – 86; positive, 185 – 86; practice of, 81 – 82; property, 14, 23n12; psyche and, 158 – 59; psychoanalysis and, 149 – 50, 152 – 53; Roman, 84 – 88, 90, 99, 105, 110n18, 242 – 43, 247; thinking, 2 – 4; violence and, 69 – 70; from Volksgeist, 98. See also civil law; jurisprudence; legal critique; rule of law; specific topics Law in the Courts of Love (Goodrich), 173 Law’s Meaning of Life (Naffine), 81 lawyers, 2, 235 legal communication, 188 legal contentions, within Gleichschaltung, 202 – 6 legal critique, 49 – 52, 53, 56 – 57 legal form, 1 legalism, 6, 28, 37, 40n16, 120 legalists, 81 – 82 legal personality, 81 – 82; anthropological function of, 83; incorporation and, 97 – 98; Kelsen on, 89 – 90; of persona, 84 – 85; of subjects, 91, 93. See also corporate personality legal persons, 86, 89 – 90 legal recognition: of associations, 101; of groups, 106 – 7 legal regimes, 13 legal rules, 52 legal subject, 20 – 21, 91, 93 legal theory, 2 – 4, 9 – 11 legitimation, 186, 188, 190 Lévi-Strauss, Claude, 157 – 59 Levy, Sidney J., 137, 139 liberalism, 36

liberty, 5 lies, 188 life, normative order of, 142 lifestyle: advertising in, 142; as chosen, 141; of consumer, 139; objects in, 140 – 41; segmentation, 140; society of, 141, 143 – 44 Lindberg, Susanne, 212 linguistic distinctions, 161 The Logic of Sense (Deleuze), 116, 119, 122 love: ambivalence of, 171 – 73, 178 – 79; anarchism and, 175 – 79, 179n4; of beauty, 168 – 69; commercialization of, 179n1; describing, 167 – 68; experience of, 179n2; in a fragment, 169 – 72; ideal, 168 – 69, 178; law and, 8, 168, 171 – 75, 178; Plato on, 168 – 69; social bond of, 248. See also figures, of love lover, 173 – 74 A Lover’s Discourse: Fragments (Barthes), 167 Luhmann, Niklas, 245 The Machinery of Talk (Freadman), 114 madness, 193 Maitland, Frederic, 100 Malik, Charles, 32 manifestation, 116 – 17, 129n25 manufactured illegalisms, 15 – 16 Marcuse, Herbert, 213 Margel, Serge, 243 – 44, 246, 249n4 Maritain, Jacques, 90 – 91 marketing, 137 – 39 marriage, 178, 179n4 Marx, Karl: on capital, 55 – 56; on disciplinary power, 18 – 19; Foucault on, 34; on legal regimes, 13; on religion, 241; Theft of Wood by, 15 – 19 Marxism, 45 Marxism and Other Western Fallacies (Shariati), 34 mask, persona and, 84 – 86 Maslow, Abraham, 140

260

Index

mass incarceration: Foucault on, 22; patrimony and, 21 – 23; poverty and, 23 mass unemployment, 23 material culture, 138 materiality, 73, 77n17 Mawani, Renisa, 67, 76n5 means of production, 55 – 56 Mein Kampf (Hitler), 210 memory, 68, 70 – 72, 74, 77n20, 152 metalanguage, 46, 48 – 50, 58n9 metaphoric, metonymic poles of language, 161 metaphysical realism, 6 metaphysical realists, 94n1 meta-symbolism, 142 – 43 Mezzadra, Sandro, 231 migration, 226 – 27, 230 – 31 Minucius Felix, 248 – 49 Mitchell, Arnold, 140 mneme, 67, 69, 72, 74, 77n20 Möbius, 243 – 44 modernity, 243 modernization, as archaism, 30 – 33, 39 Montaigne, 71 Mother Earth (magazine), 176 – 77 musselmann, 93 myth, 183 – 84, 188 – 90, 193 mythical violence, 190, 195n11 Naffine, Ngaire, 81 – 82, 94n1 the names of the father, 162 Nancy, Jean-Luc, 7, 97, 104, 107 – 9, 149 – 50 Napoleonic Civil Code, 20 National Socialism, 199 – 200, 202 – 5, 207, 209, 211 – 12 natural ends, 186 naturalization, 102 – 4 natural law, 32, 185 – 86. See also The Rights of Man and Natural Law (Maritain) natural rights, 36 nature: animal, 91; persona and, 88; person and, 86 – 88 Nazism, 199 – 201, 204, 206, 210 – 11, 215n14, 215n24 Negri, Antonio, 120, 124

Neilson, Brett, 231 Neumann, Franz, 211 neurosis, 161 – 62 NGOs. See non-governmental organizations Nietzsche, Friedrich, 21 nomad, 227 nominalism, 118 non-being, 74 Nongbri, Brent, 241, 250n10 non-governmental organizations (NGOs), 29 – 30, 35 – 36, 39 non-person, 91 – 92 non-relations, 155 normative knowledge, 134 normative order, of life, 142 normative power, 133, 144n2 normativity, 7, 133, 141 – 42 norms: Foucault on, 13; law and, 66, 133; realization of, 134 nostalgia, 70 Noys, Benjamin, 54 – 55, 59n31 objectified personal identity, 140 the objective spirit, 136 objectivity, 142 oblivion, 196n19 oikonomia, 64, 238, 244 – 45 ontology, 104; of border, 225 – 26; of Heidegger, 209 – 10; of knowledge, 58n17; of law, 51, 65 – 66, 73, 75 – 76 order, 75, 209 orientalism, 34 – 35, 39, 40n13 the other, 9, 150, 174, 194 ownership, private, 16 – 17 paganism, 248 Pahlavi, 30 – 33 pain, 221 parricide, 159, 163n4 pastoral power, 32 – 33 patrimony, 4, 13, 87; empty, 21 – 23; illegalisms and, 20; juridical category, 19 – 20; Kant on, 19; mass incarceration and, 21 – 23 patrimony theory: on legal subject, 20 – 21; subjective version of, 19 – 21



Index 261

Pausanias, 171 Pavlov, Alexei, 32 Peirce, Charles S., 114 – 16, 126 Penal Code of 1810, 24n18 penal system, capitalism and, 17 penitentiary, 17, 19 person, 6; animal and, 91; in Christianity, 88 – 89; concept of, 83 – 85; Dewey on, 101 – 2; dignity of, 22, 29 – 30; as genus, 86; juridical capacity of, 89; nature and, 86 – 88; non-person and, 91 – 92; physical, 90; rights of, 90 – 91, 93; social role of, 84. See also corporate personality; legal personality; persons persona: Christ and, 89; legal personality of, 84 – 85; mask and, 84 – 86; nature and, 88; in Roman law, 84 – 86 persona ficta, 98, 109n7 personality: corporate, 97, 102, 104 – 8; fictitious, 98 – 102, 104 – 6; of groups, as real, 98 – 102, 104, 106, 108 – 9. See also legal personality personification, 88 – 91 persons: fictitious, 105 – 6; legal, 86, 89 – 90 Phaedrus (Plato), 73 Pharmacy (Plato), 75 pharmakon, 74 Phenomenology of Right (Hegel), 207 philosophy, of history, 183, 193 Philosophy of Right (Hegel), 205, 210 – 12 physical person, 90 pity, 232n9 Plato, 73, 75, 168 – 69 poem, 169 poikilos nomos, 171 – 72 police, violence and, 187 police state, 31 – 32, 36 policing, 124, 131n59 political legitimation, 186, 188 politics, 136, 216n34; ANT and, 46 – 47; critical sociology and, 48; language and, 183 – 84; religion and, 239 – 40. See also biopolitics; cosmopolitics; state

Ponderings (Heidegger), 9, 199, 209 popular movements, 34 population, 124 positive law, 185 – 86 positivism, naturalization and, 102 – 4 possibility, 1 potentiality, 1 – 3 Pottage, Alain, 125 poverty, 21 – 23 power: Christianization of, 243 – 44; disciplinary, 17 – 19, 24nn13 – 14, 113 – 14, 122; labour, 56, 59n42; mythical, 183; normative, 133, 144n2; pastoral, 32 – 33; state, 131n59; time and, 17 – 18; wealth and, 56 The Power of a Lie (Boyer), 177 pragmatism, 101 – 2 prehistory, 193 – 94 presence, absence and, 74 private ownership, 16 – 17 production, means of, 55 – 56 productivity, 194n4 promiscuity, 177 – 78 property law, 14, 23n12 property rules, 16 proposition, 122, 129n10 Protestantism, 241 – 42 psychagogy, 133 – 34, 142 psyche, 158 – 59, 163n2 psychic archives, 74 – 75 psychoanalysis, 8, 67 – 68, 77n10; law and, 149 – 50, 152 – 53. See also Freud, Sigmund psychology, individual, 143 psychosis, 162 punishment, 29. See also Discipline and Punish (Foucault) pure means, 186 – 88 Pure Theory of Law (Kelsen), 89 – 90 racism, 51 rationality, 141, 202 realism, 118 realists, 81 – 82 reality, 7, 45, 49 real personality, of groups, 98 – 102, 104, 106, 108 – 9

262

Index

reduction, 48 – 49, 58n11 Reitman, Ben, 175 – 79 relations: civil, 20; jural, 13, 18; nonrelations and, 155; social, 13 – 14 religion, 34, 235 – 38; Christianism and, 243 – 49, 249n1, 250n21; concept of, as Christian invention, 241, 250n10; critique of, 244; history of, 240, 247 – 48; institution of, crisis in, 243 – 44, 246; meanings of, 249nn1 – 2; politics and, 239 – 40; truth of, 248 – 49; world, 249n9. See also Christianity; Islam religio religens, 246 repetition, 71, 74 – 75, 77n20 representation, 116 – 18 resistance, 33 Rhine Province Assembly, 15 – 16 Riesman, David, 140 rights. See human rights The Rights of Man and Natural Law (Maritain), 90 – 91 Rodinson, Maxime, 28 Roman Catholicism, 240 – 41, 241n13 Roman law, 84 – 88, 90, 99, 105, 110n18, 242 – 43, 247 Roudinesco, Elisabeth, 158 Rousseau, 74 rule of law, 53 – 54, 65 – 66, 70, 194n4 rules: in criminal law, 103 – 4; legal, 52; legal communication and, 188; property, 16 Russia, 214n1 Said, Edward, 40n13 Sappho, 169 – 70, 179n5 Saunders, David, 53 Saussure, Ferdinand de, 116, 160 – 61 SAVAK prison, 28 – 29 Savigny, Friedrich Karl von, 98, 101, 109n7 schizophrenia, 114 Schmitt, Carl, 77n13, 183, 205, 207, 211 – 12 science and technology studies (STS), 46 secularization, 244

Security, Territory, Population (Foucault), 5, 30 – 32, 34 Sein, 199 Sein und Zeit (Heidegger), 207 – 8 self-image, 152 self-love, 174 semiotics, 118 – 19, 144n11 sense, 118 – 19, 122 separateness, 190 – 91 sexuality, 177 – 78 Seyn, 205, 208, 212 – 14 the Shah, 27 – 33, 35 shared fiction, 107 Shariati, Ali, 34 Shi’ism, 34, 37 Short, T. L., 115 – 16 sign, 114 – 16, 119; control, 125 – 28; disciplinarian, 122 – 23; futuring, 120 signification, 116 – 17, 129n25 signified, 114, 116, 118 – 19, 121 – 22, 160 signifier, 114, 116, 118 – 19, 121 – 22, 160 Simmel, Georg, 136, 139 – 40 simulacrum, 74 slaves, 87 – 88 Smith, Jonathan Z., 240 Smith, William Robertson, 154 social anthropology, 250n23 social being, 192 social bond, of love, 248 social identity, 139 – 40 social institution, of religion, 243 – 44 sociality, 107 social life, symbolism, 142 – 43 social relations, 13 – 14 social role, of person, 84 social sciences, 50 – 51 social unity, 99 – 100 La société punitive (Foucault), 14 societies of control, 122 – 24 society, of lifestyles, 141, 143 – 44 sociology, 5 – 6, 7, 45, 48, 139 Socrates, 73 soul, 88 – 89 sovereign machine of governmentality, 231



Index 263

sovereignty, 37, 108, 238 speech, writing and, 73 Stanford Research Institute, 140 state: borders of, 225 – 29; power, 131n59; torture by, 219 – 20; violence, 223. See also police state strikes, 186 STS. See science and technology studies Studies on Hysteria (Breuer and Freud), 150 – 53 subject, 20 – 21, 86, 91, 93, 141, 163 suitor, 173 – 74 superstition, 248 – 49 symbol, 115, 127 symbolic space, 139 symbolic value, of commodities, 138 – 39 symbolism: in advertising, 139, 143; of crime, 158; in social life, 142 – 43 synonymies, 154 – 55 taboo, 154 – 57, 159 Taff Vale, 100 Taylor, Charles, 106, 145n31 telos, 116, 119 Theft of Wood (Marx), 15 – 19 theocracy, 38 theology, 238 – 39 things, 136 – 38. See also commodities thinking, law, 2 – 4 Third Reich, 207 time, power and, 17 – 18 torture, 28 – 29, 35, 219 – 20 Toscani, Oliviero, 134 totalitarianism, 108, 200 totality, immanent, 97, 108 – 9 Totem and Taboo (Freud), 154, 156 – 57, 159, 161 totemism, 142 – 43, 154 trade unions, 100, 110nn11 – 12 transfiguration, of things, 138 transgression, 149 The Trial (Kafka), 191 truth, 201, 209, 216n35, 248 – 49

UDHR. See Universal Declaration of Human Rights the unconscious, 153 unemployment, 23 unions. See trade unions United Kingdom, 231 United States, 239 – 42 unity: collective, 107 – 9; of groups, 101, 106 – 7; as immanent totality, 108; of individual, 109; social, 99 – 100 Universal Declaration of Human Rights (UDHR), 32, 82 universalism, 5, 28 – 29 universitates, 105 the unspeakable, 183 – 84 utopianism, 187 VALS (values, attitudes and lifestyles), 140 value, symbolic, 138 – 39 values, of consumers, 140 verbs, 117 – 18, 120 Vietnam, 35 violence: action, 186 – 87; of archives, 67 – 70; being and, 221 – 23; Benjamin on, 186; divine, 190; double logic of, 67 – 68; of forgetting, 67 – 72; law and, 69 – 70; of the line, 223 – 25; mythical, 190, 195n11; of the other, 194; pain of, 221; police and, 187; by state, 223. See also bioviolence; Critique of Violence (Benjamin) Vismann, Cornelia, 63 – 66, 70, 73, 75, 76n5 Volk, 202, 204, 207 – 13 Volksgeist, 98, 101 voluntas, 202 – 3 wage form, 17 – 18 wages, labour and, 55 – 56 Warhol, Andy, 134 wealth, power and, 56 Weber, Max, 139 Weheliye, Alexander, 51

264

Weimar Germany, 184 Weltgeist, 214n2 Western Christianism, 10. See also Christianism; Christianity the White Revolution, 30 – 31 will, 189 – 90

Index

wood gathering, criminalization of, 15 – 19 writing, 72 – 76 Wunderblock, 72, 74 Zartaloudis, Thanos, 64 Zweig, Stefan, 225

About the Authors

Emanuele Castrucci is full professor of philosophy of law and political philosophy at the University of Siena. He taught previously at the Universities of Florence and Genoa. His studies mainly concern the domain of the history of legal and political ideas, which include the sources and forms of modern European legal thought, a reconstruction of the fundamental theory of the early 20th-century German state and juridical and theological roots of the cultural tradition of the Western civilization. His research also covers some constitutive aspects of the contemporary dimensions, such as the anthropological presuppositions of the political and the foundations of the jus publicum Europaeum. As a student of Roman Schnur, he has contributed to the diffusion in Italy of the thought of Carl Schmitt, with the Italian editions of Der Nomos der Erde im Völkerrecht des Jus publicum Europaeum (Adelphi, 1991) and of Gesetz und Urteil. Eine Untersuchung zum Problem der Rechtspraxis (Giuffrè, 2016). He is the author of On the Idea of Potency. Juridical and Theological Roots of the Western Cultural Tradition (Edinburgh University Press, 2016). Justin Clemens is associate professor in the School of Culture and Communication at the University of Melbourne. He has written extensively about contemporary philosophy, psychoanalysis and poetry. He is currently an Australian Research Council Future Fellow. His recent publications include Lacan Deleuze Badiou (Edinburgh University Press, 2014), with A. J. Bartlett and Jon Roffe, and the edited collections: What Is Education? (Edinburgh University Press, 2017), with A. J. Bartlett; and The Afterlives of Georges Perec (Edinburgh University Press, 2017), with Rowan Wilken. 265

266

About the Authors

Emanuele Coccia is associate professor at the École des Hautes Études en Sciences Sociales (EHESS) in Paris. He received his PhD in philology in Florence after studying in Macerata, Rome and Berlin. After postdoctoral positions in Paris and Barcelona he worked as assistant professor of history of philosophy in Freiburg, Germany, between 2008 and 2011. His work focuses mainly on the history of religious normativity and on aesthetics. His current research focuses on the ontological status of images and their normative power, especially in fashion and advertising. Among his recent publications are La trasparenza delle immagini. Averroè e l’averroismo (Mondadori Bruno, 2005), Le bien dans les choses (Rivages, 2013), Goods, Advertising, Urban Space, and the Moral Law of the Image (2018), The Life of Plants (2018) and Sensible Life. A Micro-Ontology of the Image (Fordham University Press, 2016). With Giorgio Agamben, as co-editor, he published an anthology on angels in Christian, Jewish and Islamic contexts: Angeli. Ebraismo Cristianesimo Islam (Neri Pozza, 2009). Gian Giacomo Fusco received his doctorate at the University of Kent, Kent Law School. He previously studied philosophy at the University of Bologna and the University of Rome. His research focuses on legal theory, the history of political ideas, contemporary continental philosophy and urban studies. Fusco is the author of Ai Margini di Roma Capitale. Lo sviluppo storico delle periferie: San Basilio come caso di studio (Edizioni Nuova Cultura, 2013). His latest publication is ‘Normalising Sovereignty: Reflections of Schmitt’s Notions of Exception, Decision and Normality’, Griffith Law Review (2017) vol. 26, no. 1: 128–146. He is currently working on two books, on the notion of a form of life and on the relation between law and violence. Hayley Gibson is lecturer in law at the University of Kent. She obtained her doctorate from King’s College London and previously studied at the University of Glasgow. Her research interests include post-structuralism, economy, jurisprudence, epistemology and philosophical archaeology. Her recent research focuses on the philosophical critique of Equity and Trusts, and she is the co-editor alongside Nick Piska (Kent) of Critical Trusts Law: Reading Roger Cotterrell (forthcoming). She serves on the editorial board of the feminist legal journal Feminists@Law. Elena Loizidou is reader in law and political theory at the School of Law at Birkbeck College, University of London. She is the author of Judith Butler: Ethics, Law, Politics (Routledge-Glasshouse, 2007); the editor of Disobedience, Subjectively Speaking. Disobedience Theory and Practice (Routledge, 2013); and the author of numerous articles and book chapters on law and culture, gender and sexuality, feminism, anarchism, political theory and the law. She is currently completing Anarchism – The Art of Living Without Law (2019).



About the Authors 267

Kyle McGee is a legal practitioner in the United States. His practice covers the areas of environmental torts, qui tam, securities litigation, consumer protection and complex commercial litigation. He is the author of Bruno Latour: The Normativity of Networks (Routledge, 2014) and Heathen Earth: Trumpism and Political Ecology (Punctum, 2017). He is also the editor of Latour and the Passage of Law (Edinburgh University Press, 2015) and co-editor of  Deleuze and Law (Edinburgh University Press, 2012). His publications have appeared in, among others, Law, Culture & the Humanities,  Philosophy & Social Criticism, Radical Philosophy, Law & Critique and Jurimetrics. Nathan Moore is senior lecturer in law at the School of Law, Birkbeck College, University of London. His research interests are currently concerned with the concept of control and its exercise, including its spatial dynamics. Moore is the author of numerous articles and book chapters on philosophy and legal thought. Tara Mulqueen is assistant professor at the School of Law, University of Warwick. She is currently completing her doctoral studies in law at Birkbeck College, University of London, where she also obtained a master’s by research in law. She has recently published an article entitled ‘Naturalising the Myth: Hart, Biopolitics and the Body Corporate’, with the Australian Feminist Law Journal (vol. 43, no. 2, 2017). She, with Lisa Wintersteiger, has also recently published ‘Decentering the Law through Public Legal Education’, with the Onati Socio-Legal Series (vol. 7, no. 7, 2017). Mulqueen is coeditor (with Daniel Matthews) of the volume titled Being Social: Ontology, Law, Politics (Counterpress, 2015). Her latest is titled ‘History, Alterity and Obligation: Toward a Genealogy of the Co-Operative’, in Daniel Matthews and Scott Veitch, eds., Law, Obligation, Community (Routledge, 2018). Anton Schütz, born in Vienna (Austria), teaches at the School of Law, Birkbeck College, University of London. He specializes in legal and social theory, European institutional history, social systems theory and a number of inquiries into Western Christianism. He has recently co-authored (with Marinos Diamantides) Political Theology: Demystifying the Universal (Edinburgh University Press, 2017). Matthew Sharpe is associate professor at Deakin University, where he teaches philosophy. He is the author of articles in critical theory, psychoanalysis, early modern and classical philosophy and a monograph on Camus, Camus, Philosophe: To Return to Our Beginnings (Brill, 2015; paperback 2016). William Watkin is professor of contemporary literature and philosophy at Brunel University. He is the author of, among else, In the Process of Poetry: The New York School and the Avant-Garde (Bucknell University Press, 2001);

268

About the Authors

On Mourning: Theories of Loss in Modern Literature (Edinburgh University Press, 2004); The Literary Agamben: Adventures on Logopoiesis (Continuum, 2010); and Agamben and Indifference: A Critical Overview (Rowman & Littlefield International, 2013). The first volume of his two-volume study of Badiou’s Being and Event project came out in 2017, entitled Badiou and Indifferent Being (Bloomsbury). The second, Badiou and Communicable Worlds, is due in 2018 by Bloomsbury. Watkin is currently working on two projects. The first, #Bioviolence, is a book on innovations in violence as a tool for the distribution of power at the global and local levels. The second, Indifference, is a critique of the central ideas of the philosophy of difference that dominate contemporary literary studies through the category of indifference. Jessica Whyte is senior lecturer in cultural and social analysis at the University of Western Sydney, Australia, and Australian Research Council DECRA Fellow. Her work integrates European political philosophy, legal history and political economy in order to illuminate the changing moral economies that underpin discourses of humanitarianism, human rights and militarism. Her work has been published in a range of fora, including Law and Critique; Humanity: An International Journal of Human Rights, Humanitarianism and Development; Theory and Event; and Contemporary Political Theory. Her first monograph, Catastrophe and Redemption: The Political Thought of Giorgio Agamben, was published by SUNY in 2013. Her forthcoming book, Governing Homo Economicus: Human Rights and the Rise of Neoliberalism, will be published by Verso in 2018. She is currently working on a three-year Australian Research Council–funded project, ‘Inventing Collateral Damage: The Changing Moral Economy of War’, which aims to provide a novel philosophical account of the invention of the discourse of ‘collateral damage’. Mikhaï l Xifaras has been professor of public law at Sciences Po since September 2008, where he teaches legal philosophy, property and jurisprudence. He has been a regular visiting professor at Harvard Law School (2011–2015) and at Keio Law School in Japan (since 2012). Before joining the Sciences Po faculty, he was professor of public law at the Université d’Orléans. He was nominated junior member of the Institut Universitaire de France (2006–2011) and has been awarded the Prix Ouverture Internationale of the Université Libre de Bruxelles (Brussels, 2003), as well as a Marie-Curie Grant from the European Commission (2003). His main publications include La propriété, étude de philosophie du droit (PUF, 2004), with Kenta Ohji; Éprouver l’universel, essai de géophilosophie (Kimé, 1999); and three edited volumes: with Gregory Lewkowicz, Repenser le contrat (Dalloz, 2009); Généalogie des savoirs juridiques, le carrefour des Lumières (Bruylant, 2008); and, with



About the Authors 269

Julie Saada, Le Droit entre Théorie et Critique, in Jurisprudence Revue Critique (LGDJ, 2016). Thanos Zartaloudis is reader in legal theory and history at Kent Law School, University of Kent. He is also lecturer and doctoral advisor at the School of Architecture of the Architectural Association in London. He has published widely in philosophy and law and legal history. His most recent book is The Birth of Nomos (Edinburgh University Press, 2018).