Problems in legal reading

District of Columbia v. Heller (2008) is a frustrating decision for many of its readers, not merely because of its outcome. The interpretive method it uses to understand the Second Amendment seems to various people in various disciplines as whimsical, self-contradictory, or altogether misguided. Thus the historian Jack Rakove sees the decision as pseudo-historiography written to justify ideology. Thus the legal scholar Reva Siegel continually tries, in vain, to compare Justice Scalia’s majority opinion here with his previous remarks on interpretation, claiming that he reads the amendment in a way that precisely admits of decision-making influenced by the “culture war” which he denounced in Lawrence v. Texas (2003) and which, in his earlier lecture, “Common Law Courts in a Civil Law System,” he advocated a method of reading (textualism, and in lieu of that, originalism) precisely in order to avoid. Thus the literary critic Stanley Fish feels that the decision exhibits too much faith in intentionalism—the notion that the Amendment must be understood in terms of what the framers, or anyone else, actually intended it to mean. In short, the decision’s interpretation of the Second Amendment seems to many as lacking in methodological coherence.

Of course, “lacking in methodological coherence” is a standard criticism by which legal opinions are often discredited: so Justice Stevens, in his dissent, calls the Court’s opinion a “strained and unpersuasive reading of the Amendment’s text” (at at 128 S.Ct. 2823). It is in this way, then, that the criticism of interpretive methodology functions as the other side of one’s having a different interpretation of the same text: instead of supplying one’s own interpretation, one can also criticize the way by which another interpretation proceeds. Usually, the two operations work in tandem in legal decisions, and this is considered all the reflection on interpretive method that the act of legal decision-making really needs: it is, at the very least, the most Stevens reflects upon it, since he then proceeds to use a method of analysis similar to Scalia’s in order to produce his own result—an act that has made commentators on the case criticize him just as much as Scalia (see the links above). It is in this way that legal thought about interpretive methodology is reappropriated into the redeployment of that same methodology, and (at the same time) radical critique of interpretive methodology (critique that would force the same to be different or at least account for difference) is excluded from the law as “legal scholarship” or “legal theory.” Thus serious, explicit thought about interpretive method may inform the law (and so may even make it into a legal brief or be cited in an opinion) but it does not bear upon the law’s operation. It is in fact so external that it even be seen as a matter of style, as is the case in Benjamin Cardozo’s famous essay “Law and Literature.” We can read this piece as recognizing methodology as the “form” of an argument that indeed makes it more or less forceful, but that does not accomplish much more than that mere aesthetic or informing function: just like a justice’s method of interpretation, style can tell us a lot about a justice (even about the essential tendencies of his thought), but it remains at bottom separable from the act of interpreting and constructing a decision.*

Given this general status of reflection on method within legal discourse, it is not surprising that many critiques of the Heller decision take up this scholarly role, confining themselves to commentaries upon method that do not take up the method as it is deployed in the decision itself. In other words, even excellent legal scholarship, like Siegel’s, must “look beyond” the methodology within the text itself in order to comment upon it and therefore reduplicate and reinstate the marginal status of radical methodological reflection vis-à-vis the act of constructing of legal opinions and law: as she says, her commentary “looks beyond the text of the Heller opinion itself to the decades of social movement conflict that preceded the decision” in order to “examine more closely the authority Heller exercises in enforcing the right to bear arms” (193). And while this may be warranted by the particular decision in question (Heller is notoriously suffused with modern history as much as it engages itself in the historical or pseudo-historical reconstruction of an 18th century episteme--just listen to the oral argument), literary scholars (and especially literary theorists) are much more willing to look inside the text of an interpretation for its interpretive assumptions, and therefore integrate methodological consideration within decisions about the justness of a reading. So where Siegel talks about “the authority Heller exercises,” a literary scholar would be quicker to say “the interpretive authority Heller exercises,” since authority (as far as the literary scholar is concerned) does not primarily come from outside the text.

Thus literary critics would not have to do as much work as Siegel and others in opposition to actual interpretation in order to establish that an interpretation has something about it which is methodologically suspect: actual interpretation and reflection on interpretive method go hand in hand. At the same time, though, literary scholars would be less willing to allow the knowledge about methodology that is made apparent be reappropriated back into the work of that methodology, taken up merely from a different angle. So just as there are more internal analyses of methodology as “readings” within literary criticism, there are more radical critiques of interpretive methodologies—critiques that do not as quickly lose their force as ad hominem attacks, as is the case with that of Stevens, mentioned above. The resulting view of methodology is one that sees it as less (externally) necessitated (as it appears to be in Siegel’s analysis**), on the one hand, and more able to be changed by a shift in its (internal) assumptions—in short, a view that sees method as more coextensive with decision-making (or evaluation in general) itself.

*“The argument put strongly is not the same as the argument put feebly any more than the ‘tasteless tepid pudding’ is the same as the pudding served to us in triumph with all the glory of the lambent flame. The strength that is born of form and the feebleness that is born of the lack of form are in truth qualities of the substance. They are tokens of the thing’s identity. They make it what it is.” I use the term “aesthetic” in the sense in which Paul de Man will deploy it. There is a sense in which the persuasive force of an argument will precisely undo the aesthetic status Cardozo grants methodological consideration—that is, when persuasion is considered as rhetoric.

**Originalism there is seen as a mode of reading which is negotiating massive political and social demands. It there functions as a “jurisprudential vehicle” for the New Right, and in Heller in particular it functions to expand (not limit, as it ostensibly claims for its goal) certain political aims by interpreting them “as the Constitution” (241-2).

Miranda

In the following I am looking at Justice Scalia's remarks in a supreme court decision from 2000, Dickerson v. United States, and their implied sense of what the Miranda v. Arizona majority is up to--specifically, his sense of what Miranda wanted to keep out of the courts, the self-exposure in confession. In this, I don't seek to defend Scalia's remarks so much as use them as a description: I don't think Miranda is hostile to confession, but perhaps only, rightly, to the impulse to confess which is somewhat different and does not necessarily imply guilt. I don't think Scalia, moreover, is really defending some notion of this human tendency (in the oppressive atmosphere of the police station) for self-exposure from the Miranda court. He's rather just opposing what Miranda rightly defends: a very clear process of taking-up the suspect into a system that "can and will use" anything this suspect says against her:

Scalia in his dissent in Dickerson is making a case that goes back to Harlan’s and Clark’s dissents in Miranda v. Arizona, that basically says a totality of the circumstances test is enough to govern the admissibility of statements produced by interrogation; and that what Miranda’s majority does by pushing so hard on the 5th Amendment’s bar on self-incrimination is install, though the notion that warnings are required to guarantee freedom from self-incrimination, certain unrealistic standards of voluntariness for these statements (“‘voluntariness’ in a utopian sense,” says Harlan). Scalia, right before the passage I want to consider, accordingly claims that,

there is simply no basis in reason for concluding that a response to the very first question asked, by a suspect who already knows all of his rights described in the Miranda warning, is anything other than a volitional act (p.5).

In other words, if the suspect is made aware of everything that a Miranda warning is supposed to give the suspect through a process based on the totality of the circumstances test (here, in Dickerson, through a process outlined in Congressional legislation—§3501), though not in the form of a warning, the requirement of voluntariness would be satisfied without warnings coming into play. But what is betrayed by Scalia’s way of putting this is the faith that Scalia has in the suspect’s ability to resist what the Miranda majority deemed coercive. So if the suspect is made aware of his rights without an explicit warning, for Scalia this is all that is really needed to prevent the suspect from being coerced. What the suspect “already knows” has that sort of force, or rather that sort of integrity. Thus if the suspect is subsequently persuaded by the police to give up her right to remain silent, then just as their prior resistance was voluntary or uncoerced—that is, was a decision based on what they already knew—so too their giving into this persuasion is voluntary:

Nonthreatening attempts to persuade the suspect to reconsider that initial decision [to remain silent] are not, without more, enough to render a change of heart the product of anything other than the suspect’s free will (p. 6).

This leads Scalia to make the point that I want to emphasize:

Thus, what is most remarkable about the Miranda decision […] is its palpable hostility toward the act of confession per se, rather than toward what the Constitution abhors, compelled confession. (p. 6).

Scalia then significantly quotes from United States v. Washington (1977), which says:

Far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable (qtd. on p. 6).

What Scalia offers us here is an interesting reading of Miranda’s decision. To him, the majority in Miranda thought that without a warning, the suspect would not be able to act volitionally on the basis of a knowledge of their rights. It conceived volition, moreover, as something that would not tend to give into persuasion by the police without giving up its voluntariness, or turn into an act under compulsion. And this means that it did not think this moment of giving up something, of admission of something, of confession to something could be made on the basis of that knowledge of one’s rights. The Miranda decision thinks that acts of confession come from somewhere else than where knowledge and volition based on knowledge reside, as Scalia conceives both these terms, and that entering this area is unacceptable for the law, as it is used in the hands of the police. In other words, Scalia concludes that court there was deliberating about whether statements coming out of that particular area are precisely things that the Constitution (and I’d add the law more generally) should consider “inherently desirable.” The “hostility to confession per se” that Scalia finds in the Miranda decision is really an answer of no to that question: the law should not find that area desirable, or itself be compelled towards practices that produce statements out of that area. Statements can come out of that area, yes. But it is not the ultimate aim of the law to be drawn there.
Following Scalia’s remarks, I might sketch out a reason why: because this area, as it is conceived by the Miranda decision, is one where what the individual has to admit is outed in such a way that it places the burden of this exposure, not on the law and its procedures, but upon that individual herself through an initiative to confess. In other words Miranda found distasteful one possible effect of legal procedure as it bears upon an individual: that it out what an individual has to say in such a way that it places the burden of this revelation, not through a process of establishing guilt systematically and through arguments that do not require the initiative of the suspect, but upon precisely that initiative—upon that “decision” based on what the subject, in Scalia’s words, “already knows.”
This, it seems, is the function of the Miranda warning, over and above any process of just making the subject aware of her rights: to eliminate the need for any initiative of the suspect in the process of producing statements that hover around the area of (but do not solely concern) their possible guilt. Knowledge of one’s rights should be so clear that it should eliminate all resistance to interrogation in the first place by, essentially, never letting interrogation touch the space in which the individual might feel certain statements should be, or will be, exposed. Doing so will keep the suspect away from a certain process of statement production—confession—that revolves around an initiative, or a will to speak—or, to put it in opposite terms, a capitulation of their will to resistance through silence. Again, at the same time, this keeps the law from becoming dependent upon this self-exposing (if not self-incriminating) behavior of the suspect, and keeps it within a process of exposure that is systematic and not confined, as it were, to the initiative of the suspect.
So legal procedure as a tool for individual’s self-exposure, as opposed to a tool for establishing guilt systematically and through arguments that do not require the initiative of the suspect—this is the sort of dystopic vision that the Miranda decision (in Scalia's view--and he thinks this is unfortunate while I think it is correct) sees on the horizon, and wants to avoid.

Clarity in law

I have been thinking a lot about clarity as an aspect and alleged virtue of style--especially in literary criticism. The always amazingly clear words of Cardozo on the subject within the field of law (and specifically within the act of writing judicial opinions) might be relevant:

I suppose there can be little doubt that in matters of literary style the sovereign virtue for the judge is clearness. Judge Veeder in his interesting and scholarly essay, " A Century of Judicature," quotes the comment of Brougham upon the opinions of Lord Stowell: "If ever the praise of being luminous could be bestowed upon human compositions, it was upon his judgments." How shall his successors in the same or other courts attain that standard or approach it? There is an accuracy that defeats itself by the over-emphasis of details. I often say that one must permit oneself, and that quite advisedly and deliberately, a certain margin of mis-statement. Of course, one must take heed that the margin is not exceeded, just as the physician must be cautious in administering the poisonous ingredient which magnified will kill, but in tiny quantities will cure. On the other hand, the sentence may be so overloaded with all its possible qualifications that it will tumble down of its own weight. " To philosophize," says Holmes in one of his opinions - I am quoting him from uncertain and perhaps inaccurate recollection - "to philosophize is to generalize, but to generalize is to omit." The picture cannot be painted if the significant and the insignificant are given equal prominence. One must know how to select. All these generalities are as easy as they are obvious, but, alas! the application is an ordeal to try the souls of men. Write an opinion, and read it a few years later when it is dissected in the briefs of counsel. You will learn for the first time the limitations of the power of speech, or, if not those of speech in general, at all events your own. All sorts of gaps and obstacles and impediments will obtrude themselves before your gaze, as pitilessly manifest as the hazards on a golf course. Some-times you will know that the fault is truly yours, in which event you can only smite your breast, and pray for deliverance there-after. Sometimes you will feel that the fault is with counsel who have stupidly misread the obvious, in which event, though you rail against the bar and the imperfect medium of speech, you will be solaced, even in your chagrin, by a sense of injured innocence. Sometimes, though rarely, you will believe that the misreading is less stupid than malicious, in which event you will be wise to keep your feelings to yourself. One marvels sometimes at the ingenuity with which texts the most remote are made to serve the ends of argument or parable. But clearness, though the sovereign quality, is not the only one to be pursued, and even if it were, may be gained through many avenues of approach. The opinion will need persuasive force, or the impressive virtue of sincerity and fire, or the mnemonic power of alliteration and antithesis, or the terseness and tang of the proverb and the maxim. Neglect the help of these allies, and it may never win its way.
-Benjamin Cardozo, "Law and Literature"

On difficulty: psychoanalysis or deconstruction

In his excellent book Troubling Confessions and elsewhere, Peter Brooks explains psychoanalysis as a method or technology for producing "difficult" truth. That is, it is a technique for producing confessional statements of truth but which gain their status of truth by way of the technique's placing a stamp of complexity on them: what emerges from the analysand in psychoanalysis is not simple, is not something that is taken at face value--or even if one attends to the face value of the statements, its truth lies on another, more substantial and complex plane of meaning than it would appear at first sight.
Now, I don't want to get into the hermeneutical issues at work here (i.e. whether what this describes is a hermeneutics of suspicion or something similar), precisely because I think Brooks is trying to avoid these issues too by recasting the problem (not unlike Eve Sedgwick with her "paranoid reading") in a different way. For indeed, "difficulty" is something in terms of which we interpret: not only because we approach words and phrases to give them a certain literary merit or not based on their difficulty--the classic debates over highbrow and lowbrow that people interested in modernism have to deal with: i.e. Joyce is good because his difficulty is a sign of richness--but because difficulty is something that intrinsicly affects our reading experience at the most basic level of how we receive or interpret the particular truth claims a phrase makes. (Now, I don't mean to say that the highbrow/lowbrow issues aren't precisely about this truth-aspect--I just want to isolate this particular issue and look at it). In other words, "difficulty" often provokes a different set of interpretive practices on our part as readers: considering a statement's truth claim as a complex one, rather than something simpler, will tend to make one interpret what is said differently, often in a manner that reproduces the difficulty that is perceived to be at work.
Thus, Brooks' point: you can't so quickly blame psychoanalysis' interpretations of a particular case (Dora would be the heated example), because you have to understand that it itself is concerned with inscribing the statements that make up this case in a particular logic of truth. In other words, you can't counter psychoanalysis by a different regime of truth without undoing the work that psychoanalysis does--which means taking up its claims to truth on some level. In Brooks' case, this other regime is the law--and this is what motivates Brooks to be hesitant about the law's increasing admission of data gathered from therapy into trial, or, in an even more extreme manner, in the turning of a trial into therapy, as victims' rights advocates risk doing. But this could also be extended to philosophy or literary interpretation or even just popular discourse: in order to analyze the truth-claim of a statement that takes place in psychoanalysis, whether you are writing on Freud as a philosopher or just talking about Freud in the street ("He doesn't have anything repressed--that's psycho-babble--he just needs to get over it..."), in order to analyze it legitimately, you can't just reject Freud outright. Psychoanalysis has to take over your discourse and make it "difficult."
Now, I have not yet really outlined what "difficulty" here means, but before I do, I want to note something else: we'll sketch out this something else and then return, with perhaps an even richer perspective, to what difficulty actually is. What I want to note is the following: what I've just said about the truth-claim of psychoanalysis might sound a lot like the status of the trace, and what I've just said about legitimately negotiating it, the work of deconstruction. (Or, rather, since the trace can be said to provoke deconstruction--deconstruction is what it brings about, as if deconstruction will have been its consequence, I might just say that I sound like I am talking about deconstruction.) Now, it wouldn't totally be wrong to hear what I've said in this way: both deconstruction and psychoanalysis, because of the status of their truth-claims, infect, as it were, other discourses. No doubt Derrida would like to say that it is the deconstructive aspect of psychoanalysis that does this (as he does with Marxism in Specters of Marx, for example), and not the other way around. But I think on some level he might also be amenable to suggesting that this is the psychoanalytic aspect of deconstruction.
Now I immediately have to hesitate when I say this, because it really doesn't say anything at all, since deconstruction isn't exactly presumed to exist like psychoanalysis is, and therefore can't be psychoanalytic any more than it can be anything whatsoever. (The phrase, then, really only says its converse, and this is why Derrida always says it the other way.) But, if we understand that it is a sort of wrong-headed phrase that tries to sketch out a texture of deconstruction in terms of what we know about psychoanalysis, it remains an interesting formulation, so I'll leave it. This is at least what Alan Bass does in a sort of autobiographical essay of his, "The Double Game," in the amazing little volume Taking Chances: Derrida, Psychoanalysis, and Literature.
He does so not only in just trying to see deconstruction (as his various books have also done) in terms of what it does to psychoanalysis, but because it is here that the sort of infection we see as the pivot or hinge between these two discourses appears as the infection of difficulty that Brooks is talking about--and that we are calling similar (at least) to deconstruction. It is the difficulty of what Derrida is up to that makes Bass take up the monumental task of translating Derrida, he claims:

[Upon reaching France in the junior year of college], I immersed myself in "structuralism," studied music, wrote plays, worked for a theater troupe, made friends. Daniel, the normalien in whose apartment I was living, helped by recommending books to read, and indicated that his teacher at the Ecole Normale, Jacques Derrida, was also someone to know about. Daniel passed along his copy of the acts of a colloquium on Genesis and Structure that contained Derrida's small essay on Husserl entitled "'Genesis and Structure' and Phenomenology." I will never forget my first attempts to read it: compared to this Lévi-Strauss and Foucault were writing popular novels. All I got from this first attempt was a vivid memory of the red circles on the book cover... I still think that for anyone not familiar with Husserl the essay is mainly impenetrable, and its first paragraph is monstrous.
-"The Double Game: An Introduction," 68

This is quite honest in its sort of arrogant naivete. Or rather, this is an instance of arrogance and naivete being honest: "Compared to this Lévi-Strauss and Foucault were writing popular novels." The first reaction to this is one of revulsion: why would a comparison such as this matter at all? Unless you were just out to appear the smartest, why would this difficulty of Derrida even be something that comes up as a thought? Even Bass seems to recoil in front of what he has just said (even though he was ventriloquizing!): he takes up this difficulty that so trumps the work of Foucault and Lévi-Strauss and recasts it in terms of how much one would need to know about Husserl.
But instead of doing this--though we will return to it in a minute--I want to stay with the sentence and look at what is so distressing, almost shameful about it for us. For this is, I think, the locus of its honesty...

(More to come...)

"Force of Law" and Benjamin

I've been wrestling with Derrida's massive, somewhat disturbing essay "Force of Law" for a week or so, not only reading the essay but turning over its questions and its analysis in my head--I must have started and stopped about five or six posts on it (a rare instance where what is on my mind won't directly make it to this blog). The essay attempts two tasks, really, or situates itself between them, in the space and time in which they both overlap and exclude each other: first, an analysis of the relation of deconstruction(s) to law and justice, second, an analysis of Walter Benjamin's "Zur Kritik der Gewalt" ("Critique of Violence") that interprets his work on violence in the light of what it could or could not say about the Holocaust.

Like I said, these tasks intertwine, so that the analysis of Benjamin proceeds mainly through issues of law and justice. But I don't think that one can dissociate the analysis of Benjamin from the focus on the Holocaust, and this is not only because Derrida says his analysis of Benjamin could not have proceeded other than with the Holocaust in view. Nor is this the case (in fact, it is absolutely not the case) because the critique of Benjamin that Derrida engages in is due only to an inability of the positions of Benjamin to comport themselves towards something like the Holocaust, as an insane remark that I read somewhere said (Derrida does not critique Benjamin because "Benjamin's position could not account for the Holocaust"). No, the issue remains one of how we read today. That is, the issue remains precisely how we today take up the writings of Benjamin and "use" them: critics, theorists, philosophers, activists use them, simply put, to critique the fascism that culminated in that unbelievable atrocity. In other words, one of the main things the essay tries to do is understand how we still are acting towards the Holocaust, and with the use of Benjamin. To this end, it takes up what we already do (use Benjamin, follow Benjamin, and attempt to comport ourselves to the atrocity that haunts us) in its deepest coherence, and shows what we must do if we are really to respect our own intentions. And what we must do is be willing to critique Benjamin, especially in the interest of the law and justice (as much as we are willing to critique Marx--see my post on Marx and Derrida below). In still other words, Derrida is trying to have us respect the fact that one simply does not read Benjamin without reading what happened after his death into his writings. This is a symptom of the fact that, more fundamentally, one does not read anything before atrocity without reading atrocity into it, remembering it--that is, looking at what is being read and its possible (direct or indirect) complicity in this atrocity.

This perhaps makes Derrida's condemnation of Benjamin's conclusions sting all the more. For this is the main experience of reading the article: a certain bitterness, not unlike that bitterness experienced reading Specters of Marx (or, perhaps, the Politics of Friendship with respect to Carl Schmitt or even Of Spirit with respect to a Heidegger that could be construed as Marxist), at the fact that we are losing a figure that we thought could fight fascism and the horrors of modernity. We cry out when we read Derrida: "Oh no! Can't the thinkers against fascism, against destruction band together for once or compromise?" If I focus more on this right now instead of returning directly to the question of deconstruction(s), law, and justice as I intended, it is because I think this digression contains what is necessary to understand Derrida's comments on law and justice (legal scholars/theorists focus upon the first part of the article--and it should be noted, political theorists and philosophers like Agamben on the second--and I think this is missing something). The experience of reading Benjamin is one of the possibility of a critique so powerful or forceful in the compactness and brilliance of its ideas that they seem like bullets. But what Derrida shows us is that we must reread over and over when confronted with such ideas, such "audacity," as he says in the essay. This is not due to the "style" of them, though this is crucial of course, but because they make a demand upon the reader to take up a position. We will develop this more in a second. But, regardless, the willingness to submit to the personality of Benjamin, to stop reading and simply (or not so simply) become a member of the "cult of Benjamin," as it is often called, is huge (though not as huge as the willingness to submit to the call of Marx). The temptation to reject Derrida's conclusions about "Critique of Violence" as contained to this early period in Benjamin, or to the influence of chance encounters with "inadequate" thinkers like Sorel, or more simply to accuse him of misreading Benjamin (without rereading Benjamin against him), is massive.
But ultimately unproductive, I think, even if one disagrees with Derrida's conclusions. In Derrida's willingness to critique Benjamin (and extend by suggestion this critique to some central concepts within Benjamin's oeuvre), he reminds us that this is reading (or not-reading) against Benjamin's own theses on the identification with a personality-figure at the head of fascist states. But in a deeper manner, he reminds us that the real desire to identify with the cause of someone like Benjamin really lies in a desire for solidarity in a politico-juridico-ethical position against forces that destroy life without legitimacy or even with legitimacy. Foremost in this desire for solidarity that brings forth the personality of Benjamin instead of his texts is a desire, then, for a position. And specifically a position as a guarantee, a guarantee that "I am just," (237) or even (and perhaps especially) "we, and not they, are just." Here is the link back to the law and to justice I suggested that this digression would somewhat elucidate, and the reason why ultimately Benjamin needs to be not just followed but always reread. The guarantee against the risk of a destruction of life of even immense proportions: this is what is sought in a "position" that would refuse to think the somewhat aberrant nature of Benjamin's "Critique of Violence" with the rest of his texts (if not with the larger concerns like fascism that we use his critiques to critique), that would preserve the figure of Benjamin above and beyond all concern for whether what Benjamin says could be said more coherently, that would pit the guarantee in the name of Benjamin against the real possibility that in covering up the sight of the risk one could become complicit with it. This risk, Derrida reminds us, is essential in any position that could deserve the status of a "position:" to dilute its reality through a guarantee would indeed mean that a position could become perhaps more stable and opposed to the destruction of life, but it does not mean that it can interrogate it more responsibly and in fact remember, mourn, and prevent it. The position, for Derrida, must deconstruct itself: it cannot be a position at all, but must be a continual insistence on rereading, a love of rereading. This does not mean that any position is problematic, but only that a position that could do what it professes to do would be impossible. (Thus compromising within the politico-juridical-ethical domain Derrida does not oppose: when it takes the form of a compromise to "take up a position," however, he sees it as dangerous, because it comes with the clause that we do away with rereading, with the singular risk.)
Situating himself within this impossibility as much as he can, Derrida reads Benjamin against Benjamin, shows how the discourse of Benjamin itself refuses to engage this impossibility, this risk, and thus becomes complicit with the type of destruction that a position as clearly articulated as Benjamin's is supposed to prevent: the destruction of someone thinking "I am just" or "we are just." It is for this very specific reason that he reads Benjamin within the context of the Holocaust.
I apologize if I moved too quickly, especially with regard to how Derrida thinks of "complicity:" obviously Derrida is not saying that we need to submit thinkers to a test, the criterion of which would be atrocity. He is trying to show that complicity means a shutting down of reinterpretation, of deconstruction, through the setting up of a position that would supposedly be fixed and stable and just. The link then between a figure like Benjamin and an event like the Holocaust would hinge on the proscriptive "positioning" of several of Benjamin's articulations, how his discourse is actually inconceivable without a fixing of a position on a particular issue. That is, Benjamin's concepts must foreclose at a certain point a their own coherency in order to use them to give a position: Benjamin's articulation itself is inseparable from this foreclosure. This is what Derrida means when he says, in a postscript to the essay, that Benjamin mobilizes a discourse of authenticity too much for him. It is not that the authentic is itself bad, but that there is too much of it: enough that it ends up sacrificing coherence for the setting up of a politico-juridical-ethical position. Here the this preliminary sketch would expand, but perhaps another time--let's move on. All this noted, this does not mean that Derrida is saying that fluidity must be preserved for its own sake. He is arguing in favor of an accountability for a risk which is the condition of justice and also of injustice, the individual event in its undecidability. I also apologize for moving too quickly with such sensitive issues, and for not getting to the law an justice as much as I should. I'll take these up later, perhaps. I hope though that I've somewhat shown the interconnectedness of both concerns of the essay in some way. This is all not yet to agree with Derrida and what he says, but to prepare a better reading.

Marx, economics and law, continued

A good example of what Marx is getting at by saying rights are "rights to inequality" can be found recently in Chief Justice Roberts' opinion (and especially in the oral arguments) in Parents Involved v. Seattle School District (which I wrote about previously here). As I said, Marx shows that the discrepancy between the form of rights granted by the law and the actual content of those rights as determined by the conditions surrounding a subject is the space in which the notion of rights moves and inhabits and tries to correct, but never is the space which it tries to do away with completely. This means that the language of rights can be used to take away rights, because rights are a notion that apply equally across all sectors of the economy and conditions surrounding a subject. This is because the subject of rights is a bourgeoisie subject, according to Marx.

Now, I don't know if this is all correct, but you do see one merit of the class-based view of history when you see it makes a demand upon thinkers to inflect a notion like rights through a disparate set of circumstances of subjects, rather than just apply them anywhere and everywhere. The proceedings in Parents Involved v. Seattle read like an interrogation as to why minorities weren't bourgeoisie enough. Roberts' questions especially seemed not just ignorant of economic and something like class reality but also willing to manipulate this distinction under the notion of rights. When he says "the way to stop discriminating on the basis of race is to stop discriminating on the basis of race"--!!!--he presupposes that race is at the same time bound up in conditions that can make it resist efforts to stop discriminating and that these conditions actually don't apply if we look at the subject right--that is, if we consider someone who is not a bourgeoisie subject a bourgeoisie subject. This duplicity is more than ignorance, it is willful ignorance, and it is the type of action that Marx knew could happen with the language of rights.

Marx, economics and law

In the "Critique of the Gotha Programme" (written 1875) Marx poses an amazing question with respect to justice.

Marx is critiquing Lasalle's loose idea, concretized in the program of the German Workers Party, that in a socialist society all that which the labor of all members of society effects (the products of their labor) should be returned or distributed back to them (in some form--Marx is quick to mark the vagueness here) in equal shares, so that everyone roughly gets what they work for. A similar spirit is seen today in arguments on the left for socialized services but without any handouts--the ethic of work must be preserved! What Marx shows is that those who make people work do not work themselves (they own), and thus to say that everyone should get repaid for their work is just saying that the exploitation of the worker should continue unmitigated. But the question itself we are interested in comes on the scene when Marx begins to ask what distribution entails with respect to rights--that is, how this restitution of the products of labor should be, as the Gotha Programme says, "justly distributed." Marx asks the following:

What is a "just" distribution?

Don't the bourgeoisie claim that the present distribution is "just?" And on the basis of the present mode of production, isn't it in fact the only "just" distribution? Are economic relations regulated by legal concepts, or on the contrary, don't legal relations arise from economic ones? (211)

An idea of justice (the concept which law is supposed to enact, and thus a "legal concept" as Marx says--though he is far from clear about the relationship of law, justice and rights) then gets founded upon this idea of return and this ethic of work, and so we are led into a quagmire that current legal theorists and legal economists are today still tackling. We should note that though Marx is talking about a specific socialist program, he opens up this question into the relation of law and economics generally, so indeed what he says can pertain (if we read him correctly) to what goes on now.

Marx offers several interesting theses that outline his view of the problem:

1. "Rights can never be higher than the economic form of society and the cultural development which is conditioned by it" (214). This looks like a case for economics, but it is this only if we admit a complex and nuanced notion of economics. All Marx is saying is that rights (legal rights conferred upon the subject with an idea of justice issuing forth from them) cannot and should not promise more than the current economic reality provides--i.e. they should not be ideal, but should reflect the material conditions of society. This means that rights must reflect class distinctions, or, put in wider terms, economic distinctions such that they change with respect to the economic constitution of subjects. The "economy" is not a homogenous thing, as it is for legal economists who wish to tie it to law, to make it determine right, but differs in its distributions of wealth. If this is the case, justice would reflect the economy, but would remain independent of it, because it must able to be something that can differentiate across various sectors of the economy, thus always being more than just the mere economy itself. To say that rights must be the same amongst subjects and extend over all this economy equally means to say essentially that all rights are bourgeoisie rights--for only the bourgeoisie could conceive of a right that could apply to all of society (for they in their wealth and ownership can indeed choose to descend if they want to. In short, what Marx says is not "an ideology of rights-and-so-forth," that is, a film on the eyes of the poor that makes them act like they have the rights of the bourgeoisie when they do not--and when they are punished for acting in this way. 

2. "Criminal justice is freely available everywhere; civil justice is almost exclusively concerned with property disputes, therefore almost exclusively it is the possessing classes that are affected" (224). Marx is mocking the language of a legality that idealistically is said to be available to everyone, to apply everywhere, and thus letting the upper classes get away with things because their trespassing is more mediated through material possessions. The irony is that it makes the upper classes seem like the lower classes because they have to put up with civil justice instead of criminal justice. But if we look at what this says positively, another thesis of Marx comes up: criminal justice applies unequally to the poor--that is, the poor get prosecuted as criminals, while the rich get prosecuted in terms of property disputes, whose penalties are much less or at least whose status gets retained (they are not seen, conceptually, as offending against the law as much as the criminal). However, this thesis exposes many of the problems of a class based notion of the conflicts within the conditions in society in history: civil justice also and in fact primarily can be used by the poor. But this is only if we turn what would be criminal justice into civil justice: that is, if we make the person something that can be owned--in other words, if we turn the subject into the subject of civil rights based on something like the 14th Amendment. Perhaps Marx is foreseeing this problem. Regardless, we can see here that the economic situation also does not straightforwardly engender justice and, as our elaboration of Marx's foresight shows, can actually just further entrench justice in a bourgeoisie conception of selfhood which does not reflect economic reality. This is most thoroughly addressed (and perhaps becomes an alternative to civil rights as property) in the next point.

3. "This equal right [to have "justly" distributed an equivalent to the labor of a person to that person, the right of the laborer for restitution of the value of labor, to have justice be the justice of economic distribution] is an unequal right for unequal labor. It acknowledges no distinctions of class, because everyone is a worker just like everyone else, but it tacitly recognizes unequal individual talent and hence productivity in labor as natural privileges. Therefore in content this is a right to inequality, like all rights. By its nature a right can only consist in the application of a common standard; but unequal individuals (and they would not be different individuals if they were not unequal) are only commensurable in terms of a common standard... e.g. [if they were] considered in a given case only as workers., and nothing else about them is taken into acount, all else being disregarded... To avoid all these faults, rights would have to be unequal, instead of equal" (214). Here the situation in our first point produces some drastic consequences, and some proscriptive remarks made with respect to the law in general. The call for "equal rights" is a call for the right to be equally submitted to the brutality of an inadequate justice of wealth distribution, because only those who already have the rights that you (the person calling for "equal rights") seek are the ones with the money. So long as justice does not confront this leveling-effect of the call for equal rights, it can only lead to a subjugation of the worker in the face of the system that entailed this person's demand for rights in the first place. Why? Not because equal rights would be a bad thing, but because "in content this is a right to inequality, like all rights." In other words, this means that because the form of rights--which is not perhaps in itself unequal--remains tied to a justice that must benefit those who have wealth and power,  the content must always be the same right to inequality. Marx isn't making a case against the form of rights explicitly here, saying that rights must necessarily be rights to inequality and that we should do away with law and justice altogether. Instead, he is saying that if you think you are going to immediately see equality spring up when the form of your rights changes through changes in the law, you will be mistaken. For the discrepancy between the form of rights granted by the law and the actual content of those rights as determined by the conditions surrounding a subject is the space in which rights moves and inhabits and tries to correct, rather than the space which it tries to do away with completely. Demanding rights then is always going to also be demanding inequality in another form--this is just another way of reading the same sentence.

This is because the language of rights, as we noted above, is for Marx the language that veils the conditions of the subject, which are economic. One should note, then, that this does not refute the law and economics crowd. In fact, it is an argument for their use of economics to determine justice--justice will coincide with an effort to accommodate the inequality in the distribution of wealth, not to ensure its equal distribution. The distinction is key: the latter tries to keep law within the sphere of economics through turning economics into the science that protects the wealthy subject--the subject who conceives of himself as having abstract freedom to do what he wants, because materially with his wealth (or, more expansively, his abilities to get wealth) he can. The justice which addresses economic inequality must naturally question whether a current economic system is creating more problems than it could ever reduce to an an abstract equality among its subjects guaranteed in the language of rights. In fact, the law that enacts this justice must account for this irreducibility, and do it economically--because the problems that always escape the language of rights are for Marx economic problems.

This is what Marx means when he says that "rights would have to be unequal, rather than equal." Rights must not try and restore the subject to an abstract free (bourgeois) subjecthood, but must be granted with respect to how they themselves create unequal subjects. In fact, for Marx, they must create unequal subjects to be law. Whether this can still be called "rights" isn't as important as the emphasis Marx is making on what rights should accomplish. Insofar as rights become a call for equality, getting them, for Marx, will only displace the inequality. Insofar as rights become a call for inequality, for respect of the law for the situation of those without rights, then we have justice. I don't think this is exactly right, but this is what Marx is saying. It comes down to this for Marx: when we ask for "equal rights" we are actually really asking for "unequal rights." When an underpriviliged group is calling for rights to be equal, they really don't mean (for Marx) that rights should grant them the rights of everyone, but that rights should come to respect the condition of uniqueness that causes inequality to fall on their heads. Thus it is a demand for laws that bring about unequal rights. Unless the law can actually address this condition, can actually vary itself across the economic strata to respect the conditions of the people, it will further entrench an economic situation that thinks it applies equally to all strata--capitalism.

Benjamin on fate, character, and law

For Benjamin, "fate" signifies what befalls man beyond the commandment of religion (thus as irreligious) when he has submitted himself to the law of the state. This submission entails that man renounces his life as a man and assume the complex relationship to legal determination which only considers him in terms of his bare life, his actions as a legal subject. Thus Benjamin says,

It is not therefore really man who has a fate; rather, the subject of fate is indeterminable... it is never man but only the life in him that it [fate] strikes.
-"Fate and Character" in Selected Writings, Volume 1

The subject of fate then is actually void. This does not mean he is free in a Sartre-like way, however. The subject of fate is complex and always already guilty or unfree, because he must always assume this voided legal subjectivity and annul his rich and complex bond as a man to the religious. To put it another way, the annulment of man by the assumption of law invests the subject with bonds to comport himself towards law in a legal way--this is why he is complex and not free (in a Sartre-like way) in his being void. When the subject does comport (or submit) himself this way, most notably when the law bears upon him, fate strikes on the subject.
"Character" takes up this void subject of fate and law and "gives this mystical enslavement... the answer of genius." In other words character takes up the void subject and develops him into an irreducible comic (that is, playful, supplemental) signifier. The bond to the religious, beyond the law, is thus restored. But this does not occur by any retrieval of the man that originally held a bond to the religious and not to the law: this man is not a reserve of plenitude outside of the law which can always be reinstated, for instance, through religious worship. Rather, character reinstates a bond to the religious, beyond the law, by creating a new bond to religion as this void subject of the law, as a subject that has transgressed religion: we see how Benjamin thinks dialectically about this. However, this is not a positive dialectic of determinate negation: the point is to arrest and interrupt the development of the legal subjectivity, not conserve it, in the assumption of character (cf. "Derridian dialectic," and "Benjamin, German Idealism, and dialectic" below). All this means that the character is not a plenitude but a void which resists the void: in short, he is a performative subject, "an individual whom, if we were confronted by his actions in life instead of by his person on the stage, we would call a scoundrel," because he went beyond the "authentic" and infinitely empty legal subjectivity. Then, as Benjamin says, "complication becomes simplicity, fate freedom."
The relationship to religion also changes: as much as the man before he voided his subjectivity and became mere life under the law, religion is not a plenitude to be returned to by this development of character. Religion too must be void, that is, must be messianic and waited for indefinitely. It is only in this way that it could be present to a subject that has renounced it: one must wait for divine recompense for the transgression that was submitting to the law instead of holding fast to the commandments (this is the meaning of the messianic that we find in the "Critique of Violence" and, modified, in "Theses on the Concept of History").

A recent op-ed on Guantanamo...

Morris D. Davis' Op-Ed in the New York Times yesterday was disturbing, to say the least. One should view it as an example of what Slavoj Zizek said in his own recent Op-Ed on torture--not because there is torture at Guantanamo, but because Zizek argues that there is a "normalization" or tolerance of policies that necessarily lead to activities like torture rampant in American discourse. We wouldn't consider fify years ago whether torture was acceptable or not in any US-operated prison, he says. Now, we do. And this consideration, this allowance of disgusting ideals into discourse is what prompts their tolerance: those who are beyond morality (those who no longer think about torture as an issue but merely as a deed to be dutifully carried out) coopt moral discourse into considering their position in order to respond to it. Thereby their (what we would call) amoral position is rendered legitimate, rendered as a reflection on morality. And this is enough to undermine morality in itself simply because their position just isn't moral--it doesn't concern itself with the same morality. It should be noted that Zizek does not conclude we should shut these "amoral" others up, but that we should mark their speech as of another morality--thus their position within discourse can be accurately discerned, and their ability to coopt ours becomes limited.
Regardless of whether Zizek's view is right or not, what becomes interesting about this is that we can make sense of an article like Davis'. Through what seems a cynical viewpoint at first, Zizek leads us eventually to the point where we can go beyond him and can assert that this "normalization" of amoral issues is merely the effect of people like Davis trying to crush dissent or honest debate on the issues of torture and (what is more important) rights generally. Witness Davis' attempt to quash debate on accusations that prisoners at Guantanamo are tried using hearsay evidence:

There is no ban on hearsay among the indespensible rights listed in the Geneva conventions. Nor is there a ban on hearsay for the United Nations-sanctioned war crimes tribunals, including the International Criminal Court, the International Criminal Tribunals for the Former Yugoslavia and Rwanda, and the Special Court for Sierra Leone. The Nuremberg trials also did not limit hearsay evidence. Simply stated, a ban on hearsay is not an internationally recognized judicial guarantee.

Besides the utter insanity of the comparison between a Guantanamo prisoner and Adolf Eichmann that the reference to Nuremberg (half a century ago!) invites, what is happening here is that Davis is normalizing a point of view that is hostile to basic human rights by subordinating them to the coherency of his portrait of Guantanamo. This is a throwaway paragraph. But it does the dirty work of insinuation, of degradation. The subject matter of the article itself--Davis' equally insane implication that because the conditions of the prison at Guantanamo are excellent, it makes detaining an enemy combatant there (who has not been given a chance to say whether she or he was wrongly accused until the belated event of her or his trial) is in compliance with any common-sense idea of legality--this subject matter is completely tangential to these remarks on hearsay: in the article, Davis has just made his point that hearsay is (supposedly) not admitted into trials of detainees. Why speculate on whether the admission of hearsay in a trial is an internationally condemned practice?
Simply because it buttresses his position. The insinuation is that you are wrong for questioning the United Stats on the issue of the legality of Guantanamo, and that, furthermore, you are wrong about your own knowledge of internationally recognized human rights. In short, your common sense is wrong--any revulsion you might have to hearsay itself is suspect. Regardless of the validity of this perspective it is obvious that the effect is to call into question whether hearsay should be a right of a detainee if she or he wouldn't get it at Nuremberg--and merely by considering this question, we are already on our way to accomodating things like torture. But what doesn't matter here are the effects of whatever side you are on: for Davis, and for many people in politics nowadays, it seems that the question of what side you are on is more valuable. This is the scary thing about the article: in an effort to defend the Bush administration's policies, it is willing to attack even our most common-sense values.

Why Ray Kelly is hilarious

From The Village Voice:

Another [NYPD] document [in the 600+ pages of information on "security threats" to the Republican National Convention held in New York City] marked "secret" warns: "Flashing to be utilized as protest tactic."