Monday, December 29, 2008

Law and Debord

When I was younger (about 17 or 18) I really got into – what might broadly be termed – 1960s Marxist humanism (or something like that). Of particular interest to me were Marx’s Paris Manuscripts (and there are still some passages I can remember almost by heart) and the Situationist International, particularly Guy Debord’s Society of the Spectacle. However, once I started to really get into legal theory (and other areas of the Marxist oeuvre), the SI no longer exerted that much direct influence on me. Yet as I was walking home from the chip shop recently it struck me that some of the stuff in the Society of the Spectacle might help to illuminate some legal theory stuff. This is an avenue I could see myself pursuing further in a few years, but here are some preliminary thoughts I have on the matter.

In the introduction to Society of the Spectacle Debord argues that ‘[i]n societies where modern conditions of production prevail, all of life presents itself as an immense accumulation of spectacles. Everything that was directly lived has moved away into a representation’ (1). This is obviously a modification of Marx, who argued that the wealth of capitalist society was an ‘immense accumulation of commodities’ (Marx 1999: 13). What is relevant to us is that Pashukanis argues ‘[a]s the wealth of capitalist society assumes the form of an enormous accumulation of commodities, society presents itself as an endless chain of legal relationships’ (1980: 62). Can we interrogate the relationship between commodity exchange, the spectacle and the law?

It’s clear that this question is not one that preoccupied Debord. In his Comments on the Society of the Spectacle Debord argued ‘[i]n the integrated spectacular, the laws are asleep; because they were not made for the new production techniques, and because they are outflanked in distribution by new types of agreement’ (xxvi). Debord (in what seems to me a particularly French moves), imagines law to be those formal, general ‘rules’ issued by the state which (although they might well be aimed at combating the spectacle) are simply ineffective. He fails to consider the fact that law itself might be intimately related to the spectacular society he describes.

Debord argues that the domination of the spectacle – of representation over lived reality – is the ultimate victory of commodity fetishism. What he fails to note is that as soon as commodity fetishism appeared, legal fetishism appeared also, man was abstracted from his concrete existence and made into an abstract, formally equal legal subject, who possessed certain rights and duties. Thus, in a very real sense, the legal subject is the already existing spectacular representation of actually existing human beings, as Pashukanis notes:
[R]eal conditions are necessary for man to be transformed from a zoological being into an abstract and impersonal subject of law, into a juridic person. These real conditions consist in the condensation of social relations and the growing power of social, i.e. class organization, which achieves its maximum intensity in the "well organized" bourgeois state. Here, the ability to be a subject of rights is finally torn from the living concrete personality, ceases to be a function of its active conscious will, and becomes a purely social quality. Legal capacity is abstracted from the ability to have rights. The legal subject receives his alter ego in the form of a representative while he himself assumes the significance of a mathematical point, a centre in which a certain sum of rights is concentrated.
(1980: 78-79)
Rather than law’s being ‘asleep’, the legal person is already a ‘spectacular’ one. The development of the legal form pre-figures, and remains active in the development of the spectacle more generally.

From this general point, there are some specific ideas that might be drawn. Firstly, the law takes spectacular situations, apprehends them, and even produces them. International law is particularly pertinent here. If we take the example of 9/11, Retort wrote a very astute article on its spectacular significance, they argued that:
Spectacularly, the American state suffered a defeat on September 11. And spectacularly, for this state, does not mean superficially or epiphenomenally. The state was wounded in September in its heart of hearts, and we see it still, three years later, flailing blindly in the face of an image it cannot exorcize, and trying desperately to convert the defeat back into terms it can respond to.
(2004: 12)
To my mind, what is very interesting is the way that international law responded this crisis. Firstly, international law was vital in apprehending 9/11 and ‘converting’ it into an event to which the US could respond to. In this way, law was able to apprehend the spectacular event. But in so doing it had already added its own logic to it, thus partaking in this spectacular event and overdetermining it. More interesting is the way in which law; in apprehending the spectacle of 9/11 then produced ever more spectacular events. The first – and most obvious – is the way that the ‘conversion’ allowed immediate, spectacular action in Afghanistan. But this was not enough. What is very telling is that the spectacle of 9/11 when ‘fed into’ the law was able to produce the defining ‘spectacle of our time’ – the War on Terror. I don’t want to pursue this too far but it is firstly clear that the War on Terror is an intensely legal reality. It is conducted through a series of legal bodies and has used copious amounts of legal argument (although some would argue it is bad legal argument). But secondly, is it not absolutely clear that the War on Terror is a spectacular one? The very name itself is not a war on concrete, actually existing terrorists (although it is that too) but a war on a concept, on an ‘image’, that of terrorism. The actions that took place through it, and the media coverage accompanying them are also pure spectacle. I am sure that we could obverse this logic in other places.

More particularly, there is a sense in which legal proceedings themselves are spectacular. If we think about the events of the trial – the pomp, the circumstance, the rituals etc., it is all pure spectacle. In order for ‘real life’ to be ‘represented’ in the legal proceedings it has to be ‘converted’ through a series of special rules and procedures, into something that fits its logic. Law is always and already ‘representation’.

But this process has deepened immensely in the past few years. We don’t have to look too hard to see the way that law enforcement and trial proceedings have captured the public eye. This is obvious from the numerous law-themed TV shows (and there are many) but also from the media attention on the law (and not just criminal law either). Debord argued that:
The celebrity, the spectacular representation of a living human being, embodies this banality by embodying the image of a possible role. Being a star means specializing in the seemingly lived; the star is the object of identification with the shallow seeming life that has to compensate for the fragmented productive specializations which are actually lived.
I have already commented on the general affinity the legal form and the celebrity might have (in that both are spectacular representations of living beings) but there is a sense in which now the two have merged. The moment of ‘actualisation’ for the legal subject – the moment of dispute, trial etc. – is also the moment in which the legal subject can be transformed into a celebrity; there is an even greater concentration of representation. One’s day in court might also be one’s fifteen minutes of fame.

To return to a theme much beloved of me, legal argument – by virtue of its spectacular character – is subject to a spectacular logic. First and foremost is the sense in which, when the law ‘apprehends’ a given piece of reality (the subject of a case) it ‘converts’ it into a spectacular logic. Thus, the law only ever inquires into the surface of the situation that confronts it. It is unable to consider the deeper logics that may have produced the dispute, or problem or whatever. Instead it treats the situation as a ‘unique’ event, with no structural logic governing it. Everything comes down to the actions of the abstract, formally equal representations that form the centre of the law. This has been much discussed by a lot of people under the rubric of exceptionalism, crisis focus etc., but no-one has tried to look at the structural reasons for this (which is quite ironic).

But – with all the contradictory logic that the spectacle brings – the law, whilst making each situation qualitatively unique, also reduces every situation to a quantitative similarity (much the same way as every commodity is reduced to ‘value’. Debord is very good on the ways that capitalism has standardised and quantified ‘time’ (although of course this is all taken from Lukács):
The time of production, commodity-time, is an infinite accumulation of equivalent intervals. It is the abstraction of irreversible time, all of whose segments must prove on the chronometer their merely quantitative equality. This time is in reality exactly what it is in its exchangeable character. In this social domination by commodity-time, “time is everything, man is nothing; he is at most the carcass of time” (Poverty of Philosophy). This is time devalued, the complete inversion of time as “the field of human development.”
This logic is exactly the same as that of the law. Whilst insisting on the uniqueness of any given event (or at least its remoteness from any factors which may have produced the event) the law remains obsessed with analogy and standardisation. Once the law has ascribed ‘responsibility’ for the breach on one of the parties, it then proceeds to reduced this breach to a standard ‘substance’ (money, time etc.) and deprive the ‘responsible’ party of this substance. Pashukanis has previously remarked how the logic of the criminal trial mirrors the logic of the exchange of equivalents (1980: 111).

But it is also at work more generally in the law. Thus, the law of self-defence (both nationally and internationally) insists that any action taken in self-defence must be ‘proportionate’, as does jus in bello. In this we see the double movement of the spectacle, whilst it denies that there might be a common logic operating in reality – and so treats each of its spectacles as a self-contained incident – it nonetheless seeks to reduce reality to a common equivalent.

I’d like conclude with what these little observations might mean for legal strategy. Recently, China Miéville has pointed me in the direction of Jacques Verges (which he found through Christodoulidis. Verges argues that we should use court action strategically, as a form of immanent critique – rupturing bourgeois ideology. Verges example consisted in using the legal forum to challenge the legitimacy of the court itself, but we can think of examples that go further than this – like the Yippies.

But my problem with this is that any strategy of rupture seems to be inescapably spectacular – the aim being to counterpose one’s own immediate image to the spectacle. Now, there’s always a possibility that legal strategy will get co-opted by capitalist society. The point of the rupture is meant to be that – precisely because it insists there can be no justice – it cannot be co-opted. But is there not the ever-present chance that precisely because of this spectacular logic the rupture is easily co-optable. The normal danger of legal strategy is that if we win, our opponents can say ‘we can’t be so bad, you got this’. The danger of the ruptural strategy is that it just becomes another ‘media event’, a stunt that has no political significance. Indeed, the danger is – that like 9/11 – any ruptural strategy is simply ‘fed into’ the law, which produces more spectacles. Verges is instructive here, I mean the man has a film about him. Bourgeois society could respond to his ruptural strategy not by saying ‘we’re so free here that he can do this’ but simply by treating him as an eccentric celebrity.

This harks back to Rasulov’s phrase about ‘intellectual anarcho-terrorism’. The only way to really avoid co-optation is to build a serious, practical movement which can’t simply be written off as spectacular. Whether or not such a group can use spectacular methods is – I think – very similar to whether or not we should appeal specifically to legality. I think the answer to both is – it depends, but it’s always going to be risky.

So, yeah, I’m aware that my thoughts on this are very sketchy, and I’ll probably forget all about this soon enough. But I do actually think that something might quite usefully come from reading Pashukanis (and law) through Debordian eyes, and vice-versa. I also think that such a position has a lot to say in illuminating our current conjuncture, and hopefully I could squeeze an article out of this.

Hope y’all had a merry Christmas and have most excellent plans for new year (I do not).

Guy Debord (1967), Society of the Spectacle
Guy Debord (1988), Comments on the Society of the Spectacle
Karl Marx (1999), Capital: Volume 1, Oxford World Classics
E.B. Pashukanis (1980), Selected Works
Retort Collective (2004), Afflicted Powers

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