Thursday, 19 March 2009

Waiting for the barbarians: Lies (and the lying liars who tell them)

In a recent article for the Guardian, George Monbiot laments the extensive use of UK anti-harassment legislation, in particular the Protection from Harassment Act 1997, to curb public protest - and its relatively sparse use for its intended purpose: "As the injunctions use civil law to create criminal offences, they require a much lower standard of proof: hearsay evidence and untested and unproven allegations can be used to criminalise any action the police or the courts wish to stop...In 2001, the act was used to prosecute protesters outside the US intelligence base at Menwith Hill, who were deemed to have distressed American servicemen by holding up a placard reading "George W Bush? Oh dear!""

One person particularly upset by this abuse of the legislation by police is Evonne Powell-Von Heussen, who spent five years vigorously campaigning for the passage of the law, having been for "17 years...the victim of an aggressive stalker, who attacked her and held her captive."

Yet this is not a problem simply with this piece of legislation, or with the notion of harassment. It is a problem with the law and legal reasoning as a whole.

Protesters against a goverment certainly do fit the technical definition of 'harassment' in the act, and the wide remit of definition may even be 'necessary' in a purely formal sense. Yet the fact that the same government may have, for instance, told bald-faced lies, causing untold deaths in some far-away land, is beyond the comprehension of the law. Lying, taken alone, is at most a civil wrong (i.e. 'defamation' or 'slander'), rarely a criminal one, and almost never one for which a government can in any way be held collectively responsible.

The law, like capital, objectifies and therefore distorts the real relations between human brings. Just as for economic Marxists capital generates the abstract notion of value as expressed by money, in the legal sphere we have the abstract notion of 'legal wrong' as expressed both in money terms (damages, fines) and prison sentences. In the economic sphere, a cinema ticket might be equal to 10 packets of crisps, or as Marx might have put it, a yard of linen = 20 kg flour. In the legal sphere, this is analogous to the equation that smoking about 150 joints is equivalent to murder.

A real relation is thus reduced to a purely quantitative one; once this initial abstraction is accomplished and embedded within a system, all kinds of other distortions creep in, where even any sense of quantitative proportion is eventually abandoned. So for instance, under current UK law a defendant can be given a lifetime jail sentence for 'supplying' magic mushrooms, which until recently were legal. This, it just so happens, is the very same sentence recently given by an Austrian court to Josef Fritzl, who "fathered seven children with his daughter while he kept her locked in a cellar for 24 years, one of whom he admitted having murdered by neglect."

Under the law of some countries, smoking about 270 joints could be equated with Fritzl.

I will therefore take this opportunity to make a bold assertion to the contrary: that in a society where magic mushrooms and marijuana were totally permitted, among other things, there would be no Josef Fritzls in existence. But that, sadly, would be a free human society - a utopian dream, to be sure.

The inverse is also true - Fritzl is the Foucauldian convict who resides at the very heart of the carceral archipelago, the necessary product of the system which convicts him, who gives it its meaning and justifies its existence.

(Of course, if for instance marijuana was legalized overnight in the present state of society, there would probably be a lot of teenagers getting wacky in the streets, etc; what I am suggesting rather is a mental experiment; I urge the reader to imagine for a moment a very different kind of society in which there is no need for codified law, and smoking a joint or nibbling on a shroom is no different than having a glass of wine with dinner.)

It is worth reconsidering in this light Marx's remark that it is not communism (as he conceives it) but liberal capitalism (bourgeois society) that is the true enemy of the individual and singular; law and capital are both part of the framework which transforms the singular human being into an abstract value, which alienates and divides the human subject on the inside as well as on the outside, confining, categorizing and determining by class, profession, legal category (wrongdoer/wronged); and formulating all social relations within these rigid terms, solidifying them within this firmament.

As Che Guevara, a doctor who became a revolutionary, wrote in a letter to Uruguayan journalist Carlos Quijano : "we socialists are freer because we are more complete; we are more complete because we are freer."

The law, which concerns itself with facts, has no interest in the category of truth as such, in the true as the whole, the truth of a situation; for this reason it cannot concern itself with crimes committed half a world away by a government 'harassed' by protesters.

Once we use the language of the law, as Eyal Weizman explains in his critique of the Israeli occupation, we accept the basic premise of the hegemonic power; once we frame our critique in terms of 'war crimes', legal rights and legal wrongs, we accept the basic legitimacy of the non-illegal violence (the violence exerted within the confines of international law, violence minus war crimes), and thus the basic legitimacy of the occupation; we give in to the kind of thinking advocated by the legalists in Nazi Germany, to use Slavoj Zizek's example, who expressed their absolute contempt for the Jews but “nevertheless insisted that there were no proper legal grounds for the radical measures they were debating.”

Like capital, the law subordinates the present (labour) to the past (accumulated capital). It even prides itself on this: for the greatest virtues that it claims for itself are things like precedent (internal consistency), neutrality or 'equality before the law' (equal right to be mistreated), and procedure; not truth and justice. This is why the law is said to be by nature conservative; it is also atavistic.

Even when it changes it remains the same: a decision that is made into a law is still a past that speaks to and subordinates a present; but a present whose real truth eludes its grasp, escapes it. At this juncture the Heideggerian category of being-thrown-into-the-world emerges; a gap between a situation which can never be formulated in advance, and a corresponding legal category which constantly attempts to formulate that situation in advance. (Take for instance some of the security measures in the so-called 'war on terror', the various micro-practices of power - the imperative to take off one's shoes, the ban on liquids - they are always retrospective, i.e. the terrorists could have done their job the first time had it not been for some unfortunate accident; and their real target is not the terrorists, but us.)

As John Irving, that crypto-Marxist (I am aware this is normally used as a derogatory term) of the American novel, put it:

"Who live here in this cider house, Peaches? Who grind them apples, who press the cider, who clean up the mess, and who just plain live here... just breathin' in the vinegar? Somebody who don't live here made them rules. Them rules ain't for us. We the ones who make up them rules. We makin' our own rules, every day. Ain't that right, Homer?"

The meaning of that present which eludes the past is what constitutes the human; the (non-)subject whose truth eludes the objectifying operations of law and capital.

The arrest of political protesters on charges of harassment - while true injustices continue unimpeded - makes visible a gap within the structure. The more law tries to grasp the human, the more its grasp is eluded, the more fixed and impotent it becomes, the more it contradicts itself, the more it turns into a serpent swallowing its own tail, gnawing on its own entrails; while the human being grows and persists, without interrupting this lethal circuit - it never occupies the place designated for it within this asexual edifice, the space between the mouth and the tail.

This (non-)subject is perhaps precisely what Cavafy is after in his famous poem - the barbarians at the gates of Empire who never appear - for whom no laws can be written, who are unimpressed by rhetoric - and yet who would have been "a kind of solution." Isn't this also the meaning of the injunction "we do not negotiate with terrorists"? It is interesting to note that as UK officials have quietly parted wih the Bush administration over its approach to terrorism, they have just as quietly dropped the term itself, 'the war on terror'. Isn't the 'war on terror' in a broader sense - very much like, or even more than its Cold-War-era counterpart, the 'war on drugs' - a war not on the terrorists themselves or on terrorism as such, but on the human (non-)subject, a war on the 'neighbour', a war on human singularity that cannot be circumscribed/contained by the law, by the machinery of power, for which the only speech reserved is the law's refusal to speak, a refusal to negotiate, a refusal to acknowledge its own impotence when faced with a presence it cannot comprehend and which it considers by definition extra-legal, para-military, extra-ordinary (think: 'rendition'), liable to torture, imprisonment without trial, etc - not worthy even of the minimal constitutional protections that even someone like Josef Fritzl is given?

Waiting for the Barbarians
C.P. Cavafy

What are we waiting for, assembled in the forum?

The barbarians are due here today.

Why isn't anything happening in the senate?
Why do the senators sit there without legislating?

Because the barbarians are coming today.
What laws can the senators make now?
Once the barbarians are here, they'll do the legislating.

Why did our emperor get up so early,
and why is he sitting at the city's main gate
on his throne, in state, wearing the crown?

Because the barbarians are coming today
and the emperor is waiting to receive their leader.
He has even prepared a scroll to give him,
replete with titles, with imposing names.

Why have our two consuls and praetors come out today
wearing their embroidered, their scarlet togas?
Why have they put on bracelets with so many amethysts,
and rings sparkling with magnificent emeralds?
Why are they carrying elegant canes
beautifully worked in silver and gold?

Because the barbarians are coming today
and things like that dazzle the barbarians.

Why don't our distinguished orators come forward as usual
to make their speeches, say what they have to say?

Because the barbarians are coming today
and they're bored by rhetoric and public speaking.

Why this sudden restlessness, this confusion?
(How serious people's faces have become.)
Why are the streets and squares emptying so rapidly,
everyone going home so lost in thought?

Because night has fallen and the barbarians have not come.
And some who have just returned from the border say
there are no barbarians any longer.

And now, what's going to happen to us without barbarians?
They were, those people, a kind of solution.

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