Friday, December 16, 2005

To act in the absence of law 1

The phrase 'in the absence of' has a peculiar effect. It is not quite the opposite of 'in the presence of', and it is this latter phrase that I will examine first. To be in the presence of something implies being located in a space in which something or someone else is also located. And this usually signifies being in the presence of something powerful or significant. One might be ‘in the presence of the King’, whereas it would sound unusual to say ‘in the presence of the clock tower’. This ‘presence’ to which we refer has some outward-reaching effect that imposes a power, and hence to be ‘in the presence of someone’ does not necessarily mean to be simply physically close to him or her, but it does mean to be within the reach of that person’s authority or awareness.

To stand, then, ‘in the presence of the law’, while not a very common turn of phrase, does at least conjure up the image of being, for example, in a court of law where the figures of judge and prosecutor exercise their powers.

What does it mean, on the other hand, ‘to be in the absence of something’? The two phrases are not simple antonyms. Whereas the preposition 'in' has a spatial connotation in the phrase 'in the presence of', the same cannot be said concerning 'in the absence of'. How can one stand physically in an absence, a complete lack? There is a different usage of the preposition 'in' in this case, the sense being ‘in the condition or state of’, as in, for example, a building that stands ‘in ruins’. To be in the absence of something is thus to be in a state in which that ‘something’ is altogether lacking.

‘To act in the absence of the law’ would thus not be the same as that other interesting phrase outside the law. The outlaw is defined by acts that nonetheless imply the presence (somewhere) of a law that can be broken, with agents that could pursue the law-breaker. The outlaw may not be directly in the presence of the law, he or she may be successfully evading ‘the law’ (meaning the agents of the state), but the outlaw can only be known as such by the presence of a law that can be broken and which claims jurisdiction over that subject.

If, on the other hand, law is absent altogether, if one can act with no law implied or in force at all, what would it mean? Is such an act possible? Does the fact that the law is ‘silent’ (as they say) on one’s more trivial daily acts mean that these acts happen ‘in the absence of the law’? Or is the law somehow ‘present’ even then, implicitly watching, just in case one were to transgress it? Just because some act is neither forbidden nor required by the law may not necessarily mean that the law is ‘absent’ in that moment.

So, ‘to act in the absence of the law’ implies neither that one is an outlaw nor that one is innocently law-abiding. It implies something more radical than that – and perhaps we would be talking about a state of nature, if that were not a theoretical fiction constructed largely for the sake of justifying the sometimes intrusive presence of the law in everyday life. Even if there were once a state of nature somewhere on Earth, the idea is not descriptive of anyone’s life today. And, if we are to follow John Locke’s theory about the state of nature, all that is absent from it is the codified law of civil political society. The inhabitants of a Lockean state of nature are guided by their own reason, and hence able to apply a ‘natural law’. Law, by this account, is originally ‘natural’ (hence accessible by reason) and ‘God-given’ (being revealed in Scripture), and so can never be completely ‘absent’.

So, let us ask again what it could possibly mean ‘to act in the absence of the law’. Even if one is not breaking the law, the citizen-subject is of constant interest to the law, at least in the sense that one has an abiding legal identity, and that records of one’s daily life, any moment of which could possibly be used as evidence in a court of law, are constantly accruing (just in case) on electronic records, in people’s memories, etc. in a multitude of forms. The subject is therefore constantly in the presence of the law, at least in as much as being always potentially within its reach, or under its gaze, should there be cause to notice. One constantly leaves a trail of evidence.

We should also distinguish this (so far) very puzzling notion of acting in the absence of law from that of a ‘state of exception’, a stage in a nation’s history or a regime that suspends the rule of law and takes emergency powers or assumes an arbitrary dictatorial force. Perhaps ‘suspension’ of the law is not the best metaphor to describe the state of exception, but rather one should say that the force that enacts its own ‘law’ under such circumstances has simply revealed the excess of violence that under-girds any rule of law, even the most benign and democratic. The ruler’s actions in a state of exception are thus not exactly ‘in the absence of law’, but perhaps they emerge more directly from the very kernel of the law itself.

To act in the absence of law 2

To be in the absence of something does not imply a spatial relation, since such an absence is not locatable anywhere. It is rather a condition of being without something – in this case, of acting in a way that lacks the grasp or gaze of the law. It is neither law-abiding nor law-breaking; neither forbidden nor compulsory, nor even permitted by the law. To act in the absence of law is thus neither to act against the law, nor to position oneself outside the law, nor to act ‘innocently’ within the law, nor to use dictatorial fiat to suspend the law. Is there then a kind of act that happens in the absence of law, about which the law cannot speak, at which the King cannot even nod approvingly (let alone disapprovingly)? If so, what would such an act be like? Can we think of an example?

Zizek’s ‘plea for Leninist intolerance’ is perhaps a useful clue here. Under a liberal-democratic rule of law, the citizen-consumer is constantly invited to invent and reinvent an ‘identity’ and a ‘lifestyle’ based on an expanding scope of ‘choices’, but this ‘formal freedom’ is only permitted provided that it does not challenge or disturb – and preferably that it should ‘happily’ support – the social and ideological balance. Freedom must be ‘within’ the law that permits such choices. In contrast, ‘actual freedom designates the site of an intervention that undermines these very coordinates [of the existing power relations]’ (Zizek, 2002). Acting in the absence of law could imply such an ‘actual freedom’. This hypothesis can act like a bookmark for the time being.

Let us begin again from the other end of the problem, and risk contradicting some of the meanings assumed so far above.

Before we trouble ourselves too much over the apparent paradox of acting in the absence of law, one might also ask again what it means to be in the presence of the law. It may be that the notion of the presence of the law is the really problematic one. Kafka’s famous parable ‘Before the Law’ depicts the supplicant from the countryside at the Gate, waiting interminably to be admitted into the presence of the Law, presumably to experience Justice in being judged or vindicated. The Gate is open, but the time is never right for him to be admitted through it. When finally he is about to die he asks why no-one else has come to the Gate, and he is told by the gatekeeper that the Gate was only ever intended for him. As the supplicant dies, the Gate closes. The Gate existed only for him, as if the sole gesture of the Law’s ‘presence’ in his life were to keep his attention to the ‘presence’ of a misrecognised absence. Is that Law – the Law into the presence of which we eternally hope to be admitted to receive its healing balm of ‘justice’ – only ever an imaginary or reified ‘presence’? Are laws already being made around us while we wait eternally for admission to the Law itself? Is the supplicant’s act of waiting (to be admitted into a presence that’s really an absence, a lack) somehow central to the imaginary ‘game’ by which we enact the laws of everyday life? In short, are we always already ‘in the absence of Law’, while imagining it to be present somewhere?

The effect of laws is to reify a Law that is thus believed to be eternally and consistently present in everyday life. If a law is basically a performative utterance creating its own norm, its force depends in part on the consensual ‘suspension of disbelief’ in this reified Law. But, a law, in enunciating a norm, also creates the opportunity – and indeed the desire – for its own transgression. And the Law always permits itself the exceptions to its own laws. The infliction of death, imprisonment, and the seizure of property are sanctions, ‘by rights’ reserved for the Sovereign, against those who violate a citizen’s ‘life, liberty and property’.

But, more generally, the supposed existence of Law is imagined by means of imagining its absence. Hence, the fiction of a state of nature, wherein one stands ‘in the absence of any civil law’, helps retrospectively to explain and justify the supposed presence of Law. The Law, in order to found itself somewhere beyond mere tautology (‘the law is the law’) or brute force (‘might is right’), must posit an exception to itself, an absence of itself, existing in another time or another place (‘Thus in the beginning all the world was America…’, as Locke put it) – a time or place where human-made Law was absent.

Hence, a supposed absence of Law (in an imaginary dystopic past or anarchistic future) is often used to justify the Law’s very presence.

But, further than that, let us return to the proposition that there may be a kind of act, of the type that Zizek has called an act of ‘actual freedom’, that challenges the very co-ordinates of the law and of the present power relations, and hence that is performed in a space in which that law can be thought to be genuinely absent.