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.
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.
posted by Grant Duncan at 6:48 am
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