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Legal Luck, or, the Loop of the Act
ОглавлениеWhat, then, is the dimension of the law that the law cannot admit to publicly? The best way to discern it is through a logical paradox deployed by Jean-Pierre Dupuy in his admirable text on Hitchcock’s Vertigo:
An object possesses a property x until the time t; after t, it is not only that the object no longer has the property x; it is that it is not true that it possessed x at any time. The truth-value of the proposition “the object O has the property x at the moment t” therefore depends on the moment when this proposition is enunciated.27
One should note here the precise formulation: it is not that the truth-value of the proposition “the object O has the property x” depends on the time to which this proposition refers—even when this time is specified, the truth-value depends on the time at which the proposition itself is enounced. Or, to quote the title of Dupuy’s text, “When I Die, Nothing of Our Love Will Ever Have Existed.” Think about marriage and divorce: the most intelligent argument for the right to divorce (proposed, among others, by none other than the young Marx) does not refer to commonplaces such as “like all things, love affairs are not eternal, they change over the course of time,” and so on; rather it concedes that indissolvability is inherent in the very notion of marriage. The conclusion is that divorce always has a retroactive scope: it does not mean only that a marriage is now annulled, but something much more radical—a marriage should be annulled because it never was a true marriage. And the same holds for Soviet Communism: it is clearly insufficient to say that, during the years of the Brezhnev “stagnation,” it “exhausted its potential,” it “was no longer adapted to new times”; what its miserable end demonstrates is that it was caught in a historical deadlock from the very beginning.
Perhaps this paradox provides a clue to the twists and turns of the Hegelian dialectical process. Let us take Hegel’s critique of the Jacobin Revolutionary Terror as an exercise in the abstract negativity of absolute freedom which cannot stabilize itself in a concrete social order of freedom and thus has to end in the fury of self-destruction. One should bear in mind, however, that, insofar as we are dealing here with a historical choice (between the “French” way of remaining within Catholicism and thus being obliged to engage in self-destructive Revolutionary Terror, and the “German” path of the Reformation), it involves exactly the same elementary dialectical paradox as does that other choice, also from The Phenomenology of Spirit, between the two readings of “the Spirit is a bone” which Hegel illustrates by way of the phallic metaphor (the phallus as organ of insemination or as the organ of urination). Hegel’s point is not that, in contrast to the vulgar empiricist mind which sees only urination, the proper speculative attitude has to choose insemination. The paradox is that making the direct choice of insemination is the infallible way to miss the point: it is not possible directly to choose the “true meaning,” for one has to begin by making the “wrong” choice (of urination)—the true speculative meaning emerges only through the repeated reading, as the after-effect (or by-product) of the first, “wrong,” reading. And the same goes for social life in which the direct choice of the “concrete universality” of a particular ethical lifeworld can end only in a regression to a pre-modern organic society that denies the infinite right of subjectivity as the fundamental feature of modernity. Since the subject-citizen of a modern state can no longer accept immersion in some particular social role that would confer on him a determinate place within the organic social Whole, the construction of the rational totality of the modern state leads to Revolutionary Terror: one should ruthlessly tear up the constraints of the pre-modern organic “concrete universality,” and fully assert the infinite right of subjectivity in its abstract negativity. In other words, the point of Hegel’s analysis of the Revolutionary Terror is not the rather obvious insight into how the revolutionary project involved the unilateral and direct assertion of abstract universal reason, and as such was doomed to perish in self-destructive fury since it was unable to channel the transposition of its revolutionary energy into a concrete, stable and differentiated social order; Hegel’s point turns rather on the enigma of why, in spite of the fact that the Revolutionary Terror was a historical deadlock, we have to pass through it in order to arrive at the modern rational state.28
This is why Hegelian dialectics is not a vulgar evolutionism claiming that while a phenomenon may be justified in its own time, it deserves to disappear when its time passes: the “eternity” of dialectics means that the de-legitimization is always retroactive, what disappears “in itself” always deserves to disappear. Recall also the paradox of the process of apologizing: if I hurt someone with a rude remark, the proper thing for me to do is to offer a sincere apology, and the proper thing for the other party to do is to say something like “Thanks, I appreciate it, but I wasn’t offended, I knew you didn’t mean it, so you really owe me no apology!” The point is, of course, that although the final result is that no apology is needed, one has to go through the elaborate process of offering it—“you owe me no apology” can only be said once I have actually offered an apology, so that, although formally “nothing happens,” and the offer of apology is proclaimed unnecessary, there is still a gain at the end of the process (perhaps, even, the friendship is saved).29
Is it not that, here also, one has to do something (offer an apology, choose terror) in order to see how superfluous it is? This paradox is sustained by the distinction between the “constative” and the “performative,” between the “subject of the enunciated” and the “subject of the enunciation”: at the level of the enunciated content, the whole operation is meaningless (why do it—offer an apology, choose terror—when it is superfluous?); but what this commonsensical insight overlooks is that it was only the “wrong” superfluous gesture which created the subjective conditions that made it possible for the subject to really see why this gesture was indeed superfluous. The dialectical process is thus more refined than it may appear; the standard notion is that one can only arrive at the final truth at the end of a series of errors, so that these errors are not simply discarded, but are “sublated” in the final truth, preserved therein as moments within it. What this standard notion misses, however, is how the previous moments are preserved precisely as superfluous.
This is why the obvious response “But is this idea of retroactively canceling the contingent historical conditions, of transforming contingency into Fate, not ideology at its formally purest, the very form of ideology?” misses the point, namely that this retroactivity is inscribed into reality itself: what is truly “ideological” is the idea that, freed from “ideological illusions,” one can pass from moment A to moment B directly, without retroactivity—as if, for instance, in an ideal and authentic society, I could apologize and the other party could respond “I was hurt, an apology was required, and I accept it” without breaking any implicit rules. Or as if we could reach the modern rational state without having to pass through the “superfluous” detour of the Terror.
How is this circle of changing the past possible without recourse to time travel? The solution was already proposed by Henri Bergson: of course one cannot change the past reality/actuality, but what one can change is the virtual dimension of the past—when something radically New emerges it retroactively creates its own possibility, its own causes or conditions.30 A potentiality can be inserted into (or withdrawn from) past reality. Falling in love changes the past: it is as if I always already loved you, our love was destined to be, is the “answer of the real.” My present love causes the past which gave birth to it. The same goes for legal power: here too, synchrony precedes diachrony. In the same way that, once I contingently fall in love, this love becomes my necessary Fate, once a legal order is installed, its contingent origins are erased. Once it is here, it was always already here, every story about its origin is now a myth, just like Swift’s story of the origins of language in Gulliver’s Travels: the result is already presupposed.
In Vertigo, it is the opposite that occurs: the past is changed so that it loses the objet a. What Scottie first experiences in Vertigo is the loss of Madeleine, his fatal love; when he recreates Madeleine in Judy and then discovers that the Madeleine he knew was actually Judy already pretending to be Madeleine, what he discovers is not simply that Judy was a fake (he knew that she was not the true Madeleine, since he had used her to recreate a copy of Madeleine), but that, because she was not a fake—she is Madeleine—Madeleine herself was already a fake—the objet a disintegrates, the very loss is lost, and we have a “negation of negation.” His discovery changes the past, deprives the lost object of the objet a.
Are, then, today’s ethico-legal neoconservatives not a little bit like Scottie in Hitchcock’s Vertigo? In wanting to recreate the lost order, to make a new distinguished Madeleine out of today’s promiscuous and vulgar Judy, they will sooner or later be forced to admit not that it is impossible to restore Madeleine (the old traditional mores) to life, but that Madeleine was already Judy: the corruption they are fighting in the modern permissive, secular, egotistic, etc., society was present from the very beginning. One can compare this with Zen Buddhism: those who criticize the Westernized New Age image and practice of Zen—its reduction to a “relaxation technique”—as a betrayal of authentic Japanese Zen, forget the fact that the features they deplore in Westernized Zen were already there in “true” Japanese Zen: after World War II, Japanese Zen Buddhists immediately started to organize Zen courses for business managers, whilst during the war the majority supported Japanese militarism, and so on.
In the case of true love, after discovering the truth, Scottie would have accepted Judy as “more Madeleine than Madeleine herself” (he does in fact do that just before the rise of the mother superior . . .): here Dupuy should be corrected. Dupuy’s perspective is that Scottie should have left Madeleine to her past—true, but what should he have done upon discovering that Judy was in fact Madeleine? The Madeleine of the past was an imaginary lure, pretending to be what she was not (Judy was playing Madeleine). What Judy was doing in playing Madeleine was true love. In Vertigo, Scottie does not love Madeleine—the proof is that he tries to recreate her in Judy, changing Judy’s properties to make her resemble Madeleine. Similarly, the idea of cloning a dead child for bereaved parents is an abomination: if the parents are satisfied by this, it is proof that their love was not genuine—love is not love for the properties of the object, but for the abyssal X, the je ne sais quoi, in the object.
In his Wissen und Gewissen, Viktor Frankl reports on one of his post-World War II patients, a concentration camp survivor who had been reunited with his wife after the war, only for her to die soon afterwards due to an illness contracted in the camp. The patient fell into total despair, and all Frankl’s attempts to drag him out of depression failed, till, one day, he told the patient: “Imagine that God gave me the power to create a woman who would have all the features of your dead wife, so that she would be indistinguishable from her—would you ask me to create her?” The patient was silent for a short time, then stood up, said “No, thanks, doctor!” and, shaking his hand, left to set out on a new and normal life.31 The patient in this case did what Scottie, who did indeed try to recreate the same woman, was not able to do: he became aware that, while one may be able to find the same woman with regard to all positive features, one cannot recreate the unfathomable objet a in her.
There is a science-fiction story, set a couple of hundred years in the future, when time travel is assumed to be possible, about an art critic who becomes so fascinated by the works of a New York painter from our era that he travels back in time to meet him. The painter, however, turns out to be a worthless drunk who steals the time machine from him and escapes into the future; alone in the world of today, the art critic paints all the paintings that fascinated him in the future and had made him travel into the past. Surprisingly, none other than Henry James had already used the same plot: The Sense of the Past, an unfinished manuscript found among James’s papers and published posthumously in 1917, tells a similar story which also uncannily resembles Vertigo, and stimulated penetrating interpretations by both Stephen Spender and Borges. (Dupuy notes that James was a friend of H. G. Wells—The Sense of the Past is his version of Wells’s Time Machine.32) After James’s death, the novel was adapted as a very successful play, Berkeley Square, which was made into a movie in 1933 with Leslie Howard as Ralph Pendrel, a young New Yorker who, upon inheriting an eighteenth-century house in London, finds in it a portrait of a remote ancestor, also named Ralph Pendrel. Fascinated by the portrait, he steps across a mysterious threshold and finds himself back in the eighteenth century. Among the people he meets there is a painter who was the author of the portrait that had captivated him—it is, of course, a self-portrait. In his commentary, Borges provided a succinct formulation of the paradox: “The cause is posterior to the effect, the motif of the voyage is one of the consequences of this voyage.”33 James added a love aspect to the trip into the past: back in the eighteenth century, Ralph falls in love with Nan, a sister of his (eighteenth-century) fiancée Molly. Nan eventually realizes that Ralph is a time-traveler from the future, and she sacrifices her own happiness to help him return to his own time and to Aurora Coyne, a woman who had previously rejected Ralph but would now accept him.
James’s story thus psychotically (in the real) mystifies the circle of the symbolic economy, in which effect precedes cause, i.e., retroactively creates it—and exactly the same holds for the legal status of the rebellion against a (legal) power in Kant: the proposition “what the rebels are doing is a crime which deserves to be punished” is true if pronounced while the rebellion is taking place; however, once the rebellion has succeeded and a new legal order is established, this statement concerning the legal status of the same past act no longer holds. Here is Kant’s answer to the question “Is rebellion a legitimate means for a people to employ in throwing off the yoke of an alleged tyrant?”:
The rights of the people are injured; no injustice befalls the tyrant when he is deposed. There can be no doubt on this point. Nevertheless, it is in the highest degree illegitimate for the subjects to seek their rights in this way. If they fail in the struggle and are then subjected to severest punishment, they cannot complain about injustice any more than the tyrant could if they had succeeded . . . If the revolt of the people succeeds, what has been said is still quite compatible with the fact that the chief, on retiring to the status of a subject, cannot begin a revolt for his restoration but need not fear being made to account for his earlier administration of the state.34
Does Kant not offer here his own version of what Bernard Williams has called “moral luck” (or, better, “legal luck”)? The (not ethical, but legal) status of rebellion is decided retroactively: if a rebellion succeeds and establishes a new legal order, then it brings about its own circulus vitiosus, i.e., it pushes its own illegal origins into the ontological void, it enacts the paradox of retroactively grounding itself. Kant states this paradox even more clearly a couple of pages earlier:
If a violent revolution, engendered by a bad constitution, introduces by illegal means a more legal constitution, to lead the people back to the earlier constitution would not be permitted; but, while the revolution lasted, each person who openly or covertly shared in it would have justly incurred the punishment due to those who rebel.35
He could not have been clearer: the legal status of the same act changes with time. What is, while the rebellion goes on, a punishable crime, becomes, after the new legal order is established, the opposite—more precisely, it simply disappears, as a vanishing mediator which retroactively cancels/erases itself in its result. The same holds for the very beginning, for the emergence of the legal order out of the violent “state of nature”—Kant is fully aware that there is no historical moment of the “social contract”: the unity and law of a civil society is imposed onto the people by an act of violence whose agent is not motivated by any moral considerations:
since a uniting cause must supervene upon the variety of particular volitions in order to produce a common will from them, establishing this whole is something no one individual in the group can perform; hence in the practical execution of this idea we can count on nothing but force to establish the juridical condition, on the compulsion of which public law will later be established. We can scarcely hope to find in the legislator a moral intention sufficient to induce him to commit to the general will the establishment of a legal constitution after he has formed the nation from a horde of savages.36
What Kant is struggling with here is nothing other than the paradoxical nature of the political act. Recall, from the history of Marxism, how Lenin saved his most acerbic irony for those who engage in the endless search for some kind of “guarantee” for the revolution. This guarantee assumes two main forms: either the reified notion of social necessity (one should not risk the revolution too early; one has to wait for the right moment, when the situation is “mature” with regard to the laws of historical development: “it is too early for the Socialist revolution, the working class is not yet mature”), or the conception of normative (“democratic”) legitimacy (“the majority of the population is not on our side, so the revolution would not really be democratic”)—as a Lacanian Lenin might have put it, it is as if, before a revolutionary agent risks the seizure of power, it should obtain permission from some figure of the big Other—by, say, organizing a referendum to ascertain whether the majority does in fact support the revolution.37 With Lenin, as with Lacan, the point is that a revolution ne s’autorise que d’elle-même: one should take responsibility for the revolutionary act not covered by the big Other. The fear of taking power “prematurely,” the search for the guarantee, is the fear of the abyss of the act and is nicely rendered in the anecdote about the exchange between Lenin and Trotsky just prior to the October Revolution: Lenin is said to have asked: “What will happen to us if we fail?” To which Trotsky supposedly replied: “And what will happen if we succeed?” Se non e vero e ben trovato . . . What is unimaginable within the positivist vision of history as an “objective” process which determines in advance the possible coordinates of political interventions is precisely a radical political intervention which changes these very “objective” coordinates and thus, in a way, creates the conditions for its own success. An act proper is not just a strategic intervention into a situation, bound by its conditions—it retroactively creates its conditions.
We can see where Kant’s weakness resides: there is no need to evoke “radical Evil” in the guise of some dark primordial crime—all these obscure fantasies have to be evoked to obfuscate the act itself. The paradox is clear: Kant himself, who put such an accent on the ethical act as autonomous, non-pathological, irreducible to its conditions, is unable to recognize it where it happens, misreading it as its opposite, as unthinkable “diabolical Evil.” Kant is here one in a series of many conservative (and not only conservative) political thinkers, including Pascal and Joseph de Maistre, who elaborated on the notion of the illegitimate origins of power, of a “founding crime” on which state power is based; to obfuscate these origins, one must offer the people “noble lies,” heroic narratives of the origins. One cannot but respect the brutal honesty of the first-generation founders of the State of Israel who in no way obliterated the “founding crime” involved in establishing the new state: they openly admitted they had no right to the land of Palestine, it was just a matter of their force against the force of the Palestinians. On April 29, 1956, a group of Palestinians from Gaza crossed the border to plunder the harvest in the Nahal Oz kibbutz’s fields; Roi, a young Jewish member of the kibbutz who patrolled the fields galloped towards them on his horse brandishing a stick to chase them away; he was seized by the Palestinians and carried back to the Gaza Strip. When the UN returned his body to the Israelis, his eyes had been gouged out. Moshe Dayan, the then Israeli Chief of Staff, delivered the eulogy at his funeral the following day:
Let us not cast blame on the murderers today. What claim do we have against their mortal hatred of us? They have lived in the refugee camps of Gaza for the past eight years, while right before their eyes we have transformed the land and villages where they and their ancestors once lived into our own inheritance.
It is not among the Arabs of Gaza but in our own midst that we must seek Roi’s blood. How have we shut our eyes and refused to look squarely at our fate and see the destiny of our generation in all its brutality? Have we forgotten that this group of young people living in Nahal Oz bears the burden of Gaza’s gates on its shoulders?38
Apart from the parallel between Roi and the blinded Samson (which plays a key role in the later mythology of the Israeli Defense Force), what cannot but strike one is the apparent non sequitur, the gap, between the first and the second paragraph: in the first paragraph, Dayan openly admits that the Palestinians have every right to hate the Israeli Jews, since they had taken their land; his conclusion, however, is not the obvious admission of guilt, but rather the need for a full acceptance of “the destiny of our generation in all its brutality,” or in other words, the assumption of the burden—not of guilt, but of the war in which might is right, in which the stronger force wins. The war was not about principles or justice, it was an exercise in “mythic violence”—an insight totally obliterated by recent Israeli self-legitimization. As in the case of feminism, which taught us to discover the traces of violence in what appears, in a patriarchal culture, as a natural authority (of the father), we should remember the grounding violence obliterated by today’s Zionism—Zionists should simply read Dayan and Ben Gurion.
This brings us to the contemporary liberal idea of global justice, whose aim is not only to characterize all past injustices as collective crimes, for it also involves the politically correct utopia of “restituting” the past collective violence (towards blacks, Native Americans, Chinese immigrants . . .) by payment or legal measures. This is the true utopia, the idea that a legal order can make recompense for its founding crimes, thereby retroactively cleansing itself of its guilt and regaining its innocence. What lies at the end of this road is the ecological utopia of humanity in its entirety repaying its debt to Nature for all its past exploitation. In effect, is not the idea of “recycling” part of the same pattern as that of restitution for past injustices? The underlying utopian notion is the same: the system which emerged through violence should repay its debt in order to regain an ethico-ecological balance. The ideal of “recycling” involves the utopia of a self-enclosed circle in which all waste, all useless remainder, is sublated: nothing gets lost, all trash is re-used. It is at this level that one should make the shift from the circle to the ellipse: already in nature itself, there is no circle of total recycling, there is un-usable waste. Recall the methodical madness of Jeremy Bentham’s “Panopticon” in which everything, up to and including the prisoners’ excrement and urine, should be put to further use. Regarding urine, Bentham proposed the following ingenious solution: the external walls of the cells should not be fully vertical, but lightly curved inside, so that, when the prisoners urinated on the wall, the liquid would drip downwards, keeping the cells warm in winter . . . This is why the properly aesthetic attitude of a radical ecologist is not that of admiring or longing for a pristine nature of virgin forests and clear sky, but rather that of accepting waste as such, of discovering the aesthetic potential of waste, of decay, of the inertia of rotten material which serves no purpose.