To act in the absence of law 1
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.