Wednesday, December 10, 2008

Law, transgression and the Joker

So anyway, I was ambling around in my usual, thinking of random things and not doing very much productive when a thought struck me about the Dark Knight (the Batman movie). Basically I was thinking back to this rather awesome post, which is quite possibly the most interesting theory post produced on the Dark Knight. Whilst I do think the post is correct in its orientation (as an attempt to take the film seriouslyand not a cod ideology criticism piece) I do rather take issue with its characterisation of the joker as in some way productive of an alternative to the order of Gotham City. Anyhow, this links back to a discussion I had with a friend about the Dark Knight, we both thought there were interesting parallels to be made between the Dark Knight and Dostoyevsky’s Devils, with the Joker representing a kind of Pyotr Verhovensky, a nihilist whose only role is to expose the radical instabilities and hypocrisy of the existing order. And what has this to do with legal theory? Well I was reading International Law and the Poststructuralist Challenge by Akbar Rasulov (who is definitely someone to watch) and I was struck by this:
By melting the rigid structures of dogma, poststructuralism, on the one hand, rewards every reformist movement with a powerful know-how of unorthodox politics and, on the other hand, undermines every radical project in its sight whose performance requires time, planning, and discipline, by immediately turning all its anti-dogmatic arsenal against it. By romanticizing the practice of endless questioning and denouncing the act of closure as such, does poststructuralism not risk becoming just another strand of intellectual anarchoterrorism whose only real achievement is to inoculate the Established Order against any effective challenges from the left? (Rasulov 2006: 807)
Anarchoterrorist strikes me as precisely the right description of the Joker. At no point during the Dark Knight does the Joker actually attempt to articulate an alternative to the order of Gotham City. What he does do is go out to expose the Order’s contingency and ultimate instability – endlessly questioning it, as it were. But ultimately, this position doesn’t just fail to go beyond the law; it also remains within its limits. The Joker can only ever define himself in opposition to the law. The delight in continually breaching the law, showing up its limits, showing its contingency but doing nothing more evinces a certain theological, fetishistic attachment to the law, insofar as the ‘legal’ character of the law is his primary reference point (even if only to rail against).

This I think, can be said to be a danger that poststructuralists (and their ilk) might fall into. In constantly emphasising the limits of the law, deconstructing it, revelling in it, they remain enthralled by the law. There’s a great line from Pashukanis that I continually quote (I have a few of these it has to be said):
The struggle to overthrow and unmask the legalistic fetish of the system, against which the revolutionary struggle is conducted, is a quality of every revolutionary. This is obvious. Without this quality, the revolutionary is not a revolutionary. But, for the petit bourgeois revolutionary the very denial of legality is turned into a kind of fetish, obedience to which supplants both the sober calculation of the forces and conditions of struggle and the ability to use and strengthen even the most inconsequential victories in preparing for the next assault.
This is think is interesting. The idea that the ‘very denial of legality is turned into a kind of fetish’. Pashukanis is unfortunate in describing this as petit-bourgeois (indeed this is a general gripe I have with lots of Leninist stuff – the petit bourgeois seem to be responsible for an awful lot). Indeed Pashukanis doesn’t really do himself justice in talking that way, because he has a perfectly good theory to account for this fetish – outside of making vulgar class generalisations. Pashukanis is clear that commodity fetishism is also complemented by ‘legal fetishism’. There’s a great (and neglected) bit in the General Theory when Pashukanis fumbles towards drawing law, morality and the economy together:
In fact, man as a moral subject, i.e. as an equal personality, is nothing more than a prerequisite of exchange according to the law of value. Man as the subject of rights is such a prerequisite, i.e. as a property owner. Finally, both these definitions are closely connected with a third man as an egoistic economic subject.

All three definitions are not reducible to each other, and are even contradictory as it were. They reflect the totality of conditions necessary for the realization of the value relationship, i.e. a relationship in which the bonds between people in the labour process appear as the material nature of the products being exchanged.

If one abstracts these definitions from the real social relationships which they reflect, and attempts to develop them as independent categories, i.e. by pure reason, then as a result one obtains a tangle of contradictions and propositions which are mutually exclusive. But in the real relationship of exchange these contradictions are dialectically united in a totality.
So in this sense, there is already the beginnings of an explanation as to why even radicals turn the denial of legality into a fetish. Precisely because the commodity-form has penetrated our very beings and we are all juridical subjects – even before we know it – legality occupies a very special place (see this post here, although I really think it would be interesting to write more on legality and subjectivity – Alain’s Supiot’s book is good – if liberal – on this). It is thus somewhat predictable that in turning to radical politics, we nonetheless hold on to this importance – maintaining the centrality of law but simply inverting how we relate to it. But this is not good enough, precisely because it ultimately upholds the special place and role of law in determining our own action.

Of course, it is difficult to read this without immediately thinking of Bataille’s ambivalence of the sacred argument. There, as here, the theological character of a norm is ultimately upheld precisely through its violation (for an excellent example of how this can be applied to international law, see Berman’s great paper Legitimacy through Defiance). The violation qua violation only gains its power from the importance of the norm it violates. Were we to consider the norm unimportant then breaching it would be per se unimportant, with any importance coming from context, results etc.

I think the religious connection is quite interesting. There are a few Marxist theories of the law that suggest we ought to view law as very similar to religion. These tend to mean that we ought to see law can be the ‘heart of the heartless world’ and as such (especially human rights law) can express the interests of the oppressed. But what if we take the analogy further? If – as here – we have already found that law has a certain theological function, perhaps we should look at the precise way that Marx addressed religion. Very useful here is a recent article in Monthly Review:
As a materialist, Marx opted not to invest in the abstraction of God and religion. At the same time he did not attempt to disprove the supernatural existence of God, since that transcended the real, empirical world and could not be answered, or even addressed, through reason, observation, and scientific inquiry. Instead he forged a practical atheism through his scientific commitment to a historical materialist approach for understanding reality in all of its dimensions. The practical negation of God and the affirmation of humanity and science demanded an active movement for revolutionary social change, the real appropriation of the world to pursue human development—the growth and expansion of human capabilities—and freedom.
In other words what Marx seeks to do is avoid the problem of transgressive sacrality by constructing a ‘practical atheism’ in which religion, God etc. is not its central aim. I would argue the same should be done for law. In order to escape the pull of the law it is necessary to construct a practical antinomianism (I think I may have stolen this from someone’s facebook profile but it fits), in which the law per se is no longer our reference point, as Lukács puts it ‘breaking the law should not be regarded any differently than the risk of missing a train connection when on an important journey’.

But such a project could not simply be defined to strategy, as strategy always depends on theory. As a preliminary, the tasks of such a project would be – to theorise the legal form, to theorise the limits of legal argument and vitally to formulate a practical strategy for using the law which is not enmeshed within it. Now of course, Marxists – particularly Pashukanis and Miéville have already begun this task and I personally think that the strategy of principled opportunism might also be a useful way to conceptualise the project of practical antinomianism.

Crucially however the Joker (metaphorically) and lots of (a certain variation of) critical legal scholars have never done this. As Rasulov says, the task is not to play language games, to show the limits of the law etc., the point is to build a project ‘whose performance requires time, planning, and discipline’. Indeed such a movement would ultimately ‘prove the this-sidedness of its thinking’ (as to the limits of the law) ‘in practice’. Anything other than this basically remains within the framework of Gotham City. The Joker needs Batman, Batman needs the Joker. Law needs disorder, disorder needs law.

Supplementary points
There are a few things that I think are worth flagging up that didn’t really fit into the main body of this. Firstly, there’s a sense in which we can conceive of these actions as being an sort of incomplete ideology critique. So generally ideology critique is taken as judging something by reference to its own standards, showing how this fails to live up to its standards and then transcending the particular instance of ideology. But the Joker (taken metaphorically to stand in for a certain tradition in critical legal theory) is content merely to judge the instance (or perhaps denies the very possibility) but without ever transcending it. In another words he remains trapped within the very instance of ideology he seeks to critique.

There also a sense in which this interplay between transgression and obedience might well be linked into the very structure of liberalism itself. The other Pashukanis quote I always love to dredge up is the idea that:
Law is simultaneously a form of external authoritative regulation and a form of subjective private autonomy. The basic and essential characteristic of the former is unconditional obligation and external coercion, while freedom is ensured and recognized within definite boundaries.
It’s relevant here precisely because it shows us how the dialectical interplay between obedience to the law (because it is a form of private autonomy) and disobedience of the law (because it is a form of external violence) – what it shows is the way that both perspectives might nevertheless remained locked into the liberal-legal edifice, without ever finding a way out. Indeed China has a really interesting forthcoming article that talks (a bit) about the symbiosis between neo-conservative ‘nihilism’ and liberal legalism.

Apologies for the somewhat chaotic nature of the post, but now you have an insight into the disturbingly skewed nature of my thought processes. More posts coming over the next few weeks as the Glasgow University workshop on Pashukanis and International Law (very enjoyable, although I really wasn’t at my best) has stimulated the old brain cells.

Rasulov, Akbar International Law and the Poststructuralist Challenge, (2006) 19 Leiden Journal of International Law 799-827

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