Contingency, Responsibility and the Law: A Response
University of New South Wales
1. In his paper, Stephen Muecke develops an ethnography of contingency that strives to destabilize knowledge production by introducing itinerancy into philosophy. We’re asked to suspend faith in the usual philosophical and anthropological models of thought and knowledge and listen instead to stray facts, experiments in words and images. Hermes, here, is our guiding light: moving fast, with winged words for those who care to listen to the message that emerges from background noise. And the message borne by this paper is an intransigent refusal of moral responsibility in all its forms and an affirmation of the rule of law, of a law that is ‘morally indifferent and external’ (35).
2. But there is more: there is also an affirmation of another kind of responsibility – so it is not responsibility that is being rejected, simply moral codification. Yet, there is another kind of responsibility, distinct from both moralisation and indifferent legality. This is an affect-generated responsibility, underpinned by the idea that ‘one can only be responsible for the tangible, what strikes us in the present and within the orbit of this secular world’ (34). This kind of responsibility is not legislatable, since it derives solely from affectivities, which are immanent to the sociability of the community body but are not its defining identity. Even so, this community, this ‘transient and embodied community’, responds to the ‘morally indifferent and external laws’ (35) that circumscribe it.
3. The ‘stray fact’ that best illustrates this community and its bond with the law is that of the king’s single word - lapabe - which drives the crowd to an orgiastic frenzy from which only the king and his wives are immune (24). Of course, this scenography might be understood as an example of the sovereign exception noted by Carl Schmitt and made much of by Giorgio Agamben. This word spoken by the king, the sovereign, is sufficient to suspend the normal moral order and declare a state of exception in which there is no rule, leading to a ‘confused, universal mingling, the slaves with the free, the common people with the nobles’ (citing Brown, 24). Hence, this ‘sacred order of the king’, against which no-one could protest, establishes the king as sovereign in his decision on the existence of a state of exception and the suspension of the rule of law. One could quibble here about whether this amounts to a temporary suspension or a ‘regal reversal’ (23). But in either case, this is not the point of the scene within this paper. Rather, this scene confirms the existence of a different kind of responsibility – one which emerges in a transient, embodied community and which entails a rejection of moralism but which nevertheless negotiates with the rule of law. We might speculate that there is in fact a kind of hermetic bond between this profane pleasure and the morally indifferent law. And perhaps it’s precisely this bond that allows the king to be so amused at the indignation of missionaries in their religiosity and moral tendentiousness.
4. Keeping an eye on this picture or scene, I want to make three brief points about this affirmation of a responsibility that emerges through affect and is realised in practical calculations made in contingent situations. First, I wonder if we can call this a specifically ethical responsibility over and against religious moralism, which Muecke perceives in Agamben’s formulation of an infinitely great, unassumable responsibility. Against understanding the orgiastic as anomic or exceptional, then, we might follow Michel Maffesoli’s analysis in his sociology of the orgy, where he argues that the orgiastic or passional is actually constitutive of the social bond, but more importantly, is also the domain of an ‘ethical immoralism’ that contradicts or overrides the normal moral order. He writes that ‘orgiasm…allows for the structuring or regeneration of community. Contrary to a morality of "ought to be", the orgiastic refers to an ethical immoralism which consolidates the symbolic link of all society…Taking the form of paroxysm, the orgy is the condensation of the sympathetic accord that exists with the cosmos and with others’. (Maffesoli 1993: 3, 5) In this way, a passional ethical immoralism – where ethics is understood as the ethos of the people – breaks apart the order established in, for instance, the often diabolical integration of medicine, moralism and policing.
5. Second, Muecke argues that ‘the law has to be impartial, impersonal and specific in function so that we can trust it… without the voice of moral responsibility spreading like a cloud over any possible domain’ (32). Yes, but is that what the law is in its actuality? While it might be that that is what the law must or ought to be, is that what it is? Isn’t this characterisation of the law, as if that is what the law actually is, as utopian as the forms of politics being criticised? The problem that underlies this characterisation of the law is not only a question of an adequate separation of morality and legality, such that one can oppose these two concepts, affirming one and rejecting the other, but is rather a question of the specific force of law. What is the force of the sovereign such that the single word, for instance, is enough to constitute a community born in psycho-sexual frenzy? Perhaps more importantly, given the contestability of the thesis regarding sovereignty, exceptionality and the actual existence of these twin systems in our globalized world, can we ask what the force of law is apart from the sovereign word? If we affirm that a morally indifferent law must be upheld in order to stave off an unbearable religiosity in responsibility, can we be certain that the law has any force apart from any religiosity? (see Derrida 1998)
6. These questions bring me directly to the third point that I want to make, which also extends into a more general point about Agamben’s work. If one wants to affirm the importance of the law over and against the criticism of the increasing juridification of society and politics made by Agamben and others, then – after Nietzsche - one must deal with the question of nihilism. In approaching the question of the relation between moralism and legality through reference to early modern debates on natural law and transcendental metaphysics, exemplified in the intellectual conflicts of Leibniz and Pufendorf and their followers, Muecke affirms a kind of Pufendorfian conception of positive law as morally independent, operating within the ‘the orbit of this [secular] life’ of human sociality (see Saunders 2002; Hunter 2001). Within this, the law is formulated as an external coda, and its domain of operation is restricted such that it does not intrude on or operate through the conscience of the individual, but has the purely secular and regulatory function of ensuring peaceful co-existence.
7. While appealing, this affirmation avoids the difficult question of the grounding of a morally neutral law, and in doing so may on the one hand all too easily lead back to the decisionistic tradition within which Schmitt elaborates the self-grounding force of sovereignty, or on the other, (irresponsibly?) evade the question of the political decision in a faith in procedure. But, amongst other critical thinkers, Walter Benjamin’s critique of Schmitt alerts us to the difficulties in both these positions. In particular, what Benjamin makes clear is that the loss of transcendence on the part of the law contributes to a general condition of nihilism, in which the state of exception – in which the law operates in suspension - effectively becomes the rule (Benjamin 1970: 255).
8. It is precisely this recognition that underpins Giorgio Agamben’s critique of the increasing juridification of life: it is not merely that the law has been overextended in its domain of operation, such that it encroaches on more and more domains of our lifeworld, but that it has come to be wholly identified with life itself. Hence, in reference to a conflict between Scholem and Benjamin over the status of the law in Kafka, Agamben argues that the biopolitical status of law, in which law is indistinguishable from life itself, means that law is effectively ‘in force without significance’ (Agamben 1997: 51). By this, he means that in losing all transcendence the law becomes wholly identified with life and operates solely through the structure of the ban, such that the law simultaneously applies and suspends itself in its application. Agamben’s argument here, then, is not merely one of degree; it is not simply that he sees the extension of the law as been more complete than other critics of juridification. Rather, the identification of life and law has the consequence that the form of law itself is transformed. In taking up Benjamin’s insight that the exception has become the rule, he effectively posits a crisis in legitimation of the law. This crisis takes the form of nihilism, and this he argues is the danger that is becoming increasingly evident in the violence that so frequently haunts modern democracies.
9. Consequently, taking aim at his more deconstructive contemporaries, Agamben argues that the task of contemporary thought in not simply to recognize the state of abandonment in which we persist, but to overcome it. Within this he claims that it is necessary to distinguish between two forms of nihilism. (Agamben 1999a: 171) The first, which he calls ‘imperfect nihilism’ nullifies the law but maintains ‘the Nothing [that is, the emptiness of the law] in a perpetual and infinitely deferred state of validity’. (Think here of Derrida and particularly his essays on messianism and the force of law; see Mills, 2003 and forthcoming). The second form, which he calls ‘perfect nihilism’ overturns the Nothing, and does not even permit the survival of validity beyond meaning; perfect nihilism, as Benjamin states, ‘succeeds in finding redemption in the overturning of the Nothing’ (cited in Agamben 199a:171). The task that contemporary thought is faced with then is the thought of perfect nihilism, which overturns the law in force without significance that characterizes the ‘virtual’ state of exception of Western politics.
10. Importantly, the overturning of the law does not simply mean instituting a new law, and nor does it mean reinstating the lost law of a previous time ‘to recuperate alternative heredities’. (Agamben 1999b: 153) Both of these modes of progression would merely repeat the political aporia of abandonment that underpins bio-sovereign violence. Rather, the task of redeeming life from imperfect nihilism requires both the destruction of the past and the realization of ‘that which has never been’. (see Agamben 1999a, 1999b; Heller-Roazen 1999) As Thomas Carl Wall (1999: 156) writes of Agamben’s conception of the coming community, ‘without destiny and without essence, the community that returns is one never present in the first place.’ Similarly, it is only the inauguration of that which has never been, the not having been of the past, that will suffice to overturn the Nothing maintained by the law in force without significance and thereby restore human life to the unity of bios and zoe, a unity that itself has never yet been. As Agamben states ‘this – what has never happened – is the historical and wholly actual homeland of humanity’. (Agamben 1999b: 159; also see Agamben 1999c)
11. It is also in this context that Agamben’s rejection of Foucault’s gesture toward a new economy of bodies and pleasures takes on its real significance, for he sees this gesture as merely repeating the aporia of the sovereign ban and the bloody violence that attends it. Against Foucault’s provocative remarks at the end of History of Sexuality (Vol. 1) , Agamben argues that ‘the body is always already a biopolitical body and bare life, and nothing in it or the economy of its pleasure seems to allow us to find solid ground on which to oppose the demands of sovereign power’. (Agamben 1998: 187) In doing so, he rejects any notion of immanent resistance and argues instead for the necessity of a messianic event that disrupts the current nihilistic order without being of it. Consequently, then, he posits the necessity of the inauguration of a 'happy life', or ‘form-of-life’, understood as life restored to an original unity that has never been. For Agamben, happy life doesn’t partake in the distinction between natural life and political life, and has instead ‘reached the perfection of its own power and its own communicability’; (Agamben 2000: 114-115) happy life is life lived in the experience of its own unity, its own potentiality of ‘being-thus’. (Agamben 1993) As such, happy life amounts to the perfect nihilism necessary to the fulfilment of the task of overturning the law, which brings about the ‘small displacement’ that separates the messianic from our time. (Agamben 1999:164)
12. This opposition between Foucault and Agamben can be seen as indicative of a fundamental opposition in contemporary political theory around the question of political futurity. Without taking up this problem here, one can see that there are numerous problems in the political eschatology that Agamben constructs through the notion of happy life. Because of these problems, Muecke’s – not altogether explicit - criticism of Agamben’s resolution of the aporia of modern democracy in the euporia or ‘felicitous way' (Agamben 1999d: 217; also see Deladurantaye 2000) of redemptive unity can be affirmed. Nevertheless, one ought not be too hasty in re-affirming the rule of law as a necessary consequence of a critique of Agamben: the retreat to a law presumed to be morally indifferent is after all simply the reverse side of this euphoric resolution, and as such, amounts to a symmetrical form of utopics. Instead of these options, then, perhaps more is yet to be gained from considering the ethos of the people in all its passional violence and contingency as the fount of responsibility. This may well entail returning to Foucault’s provocation, not as a romantic gesture to the intransigent resistance of ‘bodies and pleasures’ as it has frequently been read, both critically and laudatorily, but as a recognition of the immanent and errant potential in life itself to evade and undermine the force of law.
Catherine Mills was Lecturer in Philosophy at The Australian National University in 2003 and is now Lecturer in Philosophy at the University of New South Wales. She specializes in Ethics, Feminist theory and contemporary European Political Philosophy. Her current research projects include a book on biopolitics, as well as research on the ethical implications of biotechnologies, especially new reproductive technologies. She has recently published in The Journal of Political Philosophy, Australian Feminist Studies, Borderlands and elsewhere. Email: firstname.lastname@example.org
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