HTDTWT: Legalize Everything from Month to Month
Seminar 7: Tuesday May 23rd, 2017
We return to the court of law and its performative dimension, but now the performance of evidence itself is foregrounded less than the indexical links tying the court as forum to the field. For we are dealing with traces, with indices in the Peircean sense: evidence links the forum to the field not through oratory re-presentation, but through contiguity. The shift is particularly telling in the sonic technology Lawrence Abu Hamdan engages with: it does not matter what the refugees say about where they come from, but how they say it. It is all about the traces of their origin embedded in their speech patterns; how they pronounce certain words proves that they do (or do not) have an indexical link with the are they claim to hail from. From logos to phōnḗ: the voice testities for or against the speaker.
With Carlo Ginzberg we can argue that a forensic paradigm united various disciplines in the late nineteenth and early twentieth century, from policework in real life (Bertillon) and in fiction (Sherlock Holmes) to psychoanalysis (Freud) and art history (Morelli). As Ginzburg characterizes this evidential or conjectural paradigm: “Reality is opaque; but there are certain points -clues, signs - which allow us to decipher it. This idea, which is at the heart of the conjectural or semiotic paradigm, has made itself a place in a wide range of intellectual contexts, most deeply affecting the human sciences.” This with not any old semiotics, however, but one that privileged the index, that is, a sign that signifies through spatio-temporal contiguity: think of the role of fingerprints in modern forensics.
If a forensic paradigm has long been established, and connected the juridical to the sciences and the humanities, why does the forensic now take on such an unprecedented importance, including in the form of rogue “forensic aesthetics? One factor may be precisely a crisis of indexicality: the index has become attenuated, as technology performs manifold operations that reveal evidence to be a factish, as Latour and Stengers would say. The fingerprint could still be regarded as a “natural” sign beyond dispute, but what about DNA evidence? And what happens when sound waves are visualized (for example by Forensic Architecture and Lawrence Abu Hamdan)? The aim, of course, is to show that a certain “official” version of events does not hold water, and to reveal that a crime (by a soldier, the military, the state) has in fact been committed; to this effect, minute sonic traces are interpereted, and in the process given visual form. These are operations that reveal an “indexical unconscious” that depends on some degree of consensus about the validity of the technologies and protocols in question. The same goes for the voice as index of origin: it is all about the symptomatic traits that software may be better at detecting than the human ear.
As Isabelle Stengers has put it in her discussion of modern science, in which she differentiates between raw facts and experimental facts: “A real ‘raw’ fact, independent of us, like an earthquake or a tree falling on a passerby, is associated with no obligation involving the meaning it must be given: it is available for any interpretation, any creation of meaning, including the one that invokes some stoically endured accident. In contrast, the ‘experimental fact’ reflects the singularity of the history in which it was produced. And the core of this history is that facts have value only if they can be recognized as being able to obligate practitioners to agree about their interpretation.”
The court case was always about conflicting accounts that have difficulty to “obligate practitioners to agree about their interpretation.” As Keenan and Weizman suggest, when the evidence – the thing, co-produced by forensic technology—appears in court, “There are no rocks to kick, as Latour would say, only new arguments t make and new materials in dispute.” In the end, however, a judge or a jury will arrive at a legally binding interpretation of the evidence, and create a binding legal fact. A judgement can of course be appealed, but not endlessly. However, the general erosion of the semi-autonomous spheres that constituted modern society (the law, science, art), with the ensuing decline of professional secrecy and privilege and the widespread distrust of Expertenkultur and coupled with the increased availability of forensic technology to “outsiders,” has resulted in a situation in which “closure” is less likely to be reached. Cases can always reopened—if not in juridical actuality, then in the court of public opinion (think Kennedy assassination).
Many projects by Forensic Architecture, of course, want to have a decisive impact on actual trials. See for instance this current example: https://www.theguardian.com/world/2017/apr/07/architects-called-upon-to-aid-neo-nazi-trial, in which the focus on modeling is also suggestive. The reconstruction of the crime has long been a staple of the court room; the reconstruction fits the available (material as well as testimonial) evidence into a spatio-temporal continuum, restoring indexicality through simulation. Whether in Germany or in Palestine, Forensic Architecture’s interventions in various cases are among the most compelling examples of contemporary aesthetic activism. Beyond their urgent immediate aims, they contribute to a further expansion of the juridical, for further “legalization,” but they also contribute to making the juridical more contested, more likely to be subject to re-appropriation, more open-ended.
As human activity keeps transforming the planet, ever fewer facts can be regarded as “raw.” Reality has become experimental. Think of global warming: a hoax invented by the Chinese, dixit Trump. James Inhofe has held up a snowball in Congress to disprove global warming. In such a situation, the need arises to create new juridical facts on the planetary crime scene, as in the case of the South-American examples discussed by Tavares. Fight facts with facts; fictions with fictions.
Seminar 6: Tuesday April 25th, 2017
Last time we studied and discussed (feminist and decolonial) critiques of universalist liberal notions of personhood, which were seen as being ultimately predicated on specific types of subjectivity. For Wendy Brown, for instance, what matters is that the seemingly universal person is always embodies by “subjects [who] are brought into being through subjectifying discourses,” and that the production of these subjectivities gives them vastly unequal access to rights. For Denise Ferreira da Silva, the distinction between a “transparent I” as historical-universal subject and a subaltern “affectable I,” which falls short of the true self-constituting subjectivity of the transparent I, is the fundamental problem that can only ever be glossed over or displaced by trying to extend full personhood and rights to ever more groups of people.
Over the months it has become clear that there is a complex set of dialectical interrelations within the triad of subject-person-citizen. Slaves once could be counted as 3/5 of a person since they were barely regarded as true human subjects, capable of autonomous self-development and rational behaviour; as 3/5-persons they could be counted to give the Southern States more political representation in Washington, but of course they themselves had no voting rights, being property rather than citizens. Today, citizenship often appears as supercharged version of personhood; an upgrade to the business class of rights. Refugees and sans-papiers may be persons, but they can be in perpetual limbo. Perhaps it is no wonder, then, that animal rights discourse has not just embraced the idea of personhood but even of citizenship for animals.
This month we focus on attempts to extend rights beyond the human. At least in the case of Sue Donaldson and Will Kymlicka, this returns us to the “liberal legalism” critiqued by Brown (they reference Rawls has having initiated a “rebirth of political philosophy”—not a claim one is likely to hear from leftists). They see the “universalizing impulse of human rights” and seek to exacerbate it. Could this be an accelerationist version of liberal legalism, pushing its logic to a point of im-or explosion?
In all texts on non-human rights, the definition of key terms can be a slippery affair. What kind of subject or self are we talking about? What is a person? It may be worthwhile recalling Hegel: “ ‘Person’ is essentially different from ‘subject’, since ‘subject’ is onlythe possibility of personality; every living thing of any sort is a subject. A person, then, is asubject aware of this subjectivity, since in personality it is of myself alone that I am aware. A person is a unit of freedom aware of its sheer independence. As this person, I know myself to be free in myself I can abstract from everything, since nothing confronts me save pure personality, and yet as this person I am something wholly determinate, e.g. I am of a certain age, a certain stature, I occupy this space, and so on through whatever other details you like.”
The person, then, is always already a manifestation of real abstraction; it is a self-objectification that turns the subject into one of many equivalent “units of freedom” able to sell their labour-power, own property and enter into contractual relations. However, if these “units” need not be natural persons but can also be artificial, corporate entities, then why not create a different kind of legal fiction and award personhood and legal protection to entire ecosystems? In his text, Paulo Tavares discusses examples of this tactic. Donaldson and Kymlicka, insist on limiting the project to animals as only they have a “subjective experience” of the world. Furthermore, they shift the focus from personhood to citizenship.
Issues of equivalence, hierarchy and anthropocentrism traverse their text. To me, there seem many odd slippages in the argument; if animals have “inviolable rights,” would those rights actually have to be comparable to human rights, or would they be different and specific? The authors effectively argue that humans “simply” recognize subjectivity and vulnerability when they encounter it; however, they quick reference to Lascaux brings to mind Georges Bataille’s insistence that what struck “early man” about animals was their existence in a sphere of immanence (“the animal is in the world like water in water”) from which humans had fallen—into a world of tools and toil, labour and death.
On the other hand, as the recent Ape Culture has shown, today there is significant investment in trying to show a more gradual transition from the animal to the human in the case of the great apes—who have been shown to use tools and to have specific cultures. As Eyal Weizman notes, “Given that apes, like orangutans, were considered to be part of a fuzzy definition of humanity until being ‘expelled’ at the end of the eighteenth century, current attempts at granting apes legal personhood and some form of non-human rights do not amount to a simple admission into an expanded humanity, but rather re-admission.”
As Weizman also argues, this expulsion of the apes from humanity occurred in a context of colonial extractivism, when the planet itself “came to be approached from a managerial, technocratic, and profit-oriented perspective as a design object.” Now that the productive rationality and operative abstractions of global design project has wrecked the planet to such an extent that Silicon Valley gazillionaires are funding space colonization programmes, aestheticist calls to “destroy the pillars of conceptual thinking” are somewhat predictable symptoms. An alternative would be aesthetic practice that uses perhaps not justice (as Contour had it) but the law as a medium—a medium whose pliability and mutability continues to be tested.
Seminar 5: Monday March 13th, 2017
Last month we focused on the court and the case, and on the performative dimension of the law. Court cases mayoften amount to a mere subsumption of the particular under the supposed universals of the law; however, at other times a dialectic of the abstract and the concrete may be initiated and reality may be reshaped, for better or worse – as when activist lawyers challenge the relegation of some groups of people to second-class citizenship, or non-citizenship; or when corporations equate themselves with natural persons thanks to an amendment that was intended to safeguard the rights of former slaves.
The latter case—the subject of Zachary Formwalt’s play—also shows the interrelations between lawmaking and jurisprudence; between the legislative and the executive branch of government. Both are needed to establish juridical reason as an operative and transformative principle, as a form of real abstraction that produces social reality; as productive reason, we might say with Denise Ferreira da Silva. Today’s texts critique this forms of reason and address the potential and the risks of progressive or leftist “legalism.”
Wendy Brown’s essay was also published in a book she co-edited with Janet Halley, Left Legalism/Left Critique. In their introduction to this volume they note that what they term left legalism—basically: leftist attempts to defend the rights and better the position of women and minorities through legal action—challenges the liberal order as being based on the abstract individualism of universal person/subject. Leftism is marked by “an explicit focus on the social powers producing and stratifying subjects, that liberalism largely ignores. Of these, capital, male dominance, racial formations, and regimes of sexuality have been of persistent importance.” Thus while the liberal ideal of “equality before the law” is obviously “preferred to inequality before the law,” it is “regarded by leftists as too abstract to produce substantive egalitarianism without transformation of the social powers that produce inequality. Equal access to rights and opportunities is seen as a false bouquet to those who, consequent to a range of possible constraints issuing from those social powers, cannot make equal use of them.”
Like Ferreira da Silva, Brown draws on Foucault’s point that power is not merely constrictive but constructive, productive—as in modern “biopower.” However, in their introduction Brown and Halley argue that Foucault was insufficiently attentive to the role that the juridical has come to play within biopower: “It seems clear to us that ‘the law’ exceeds the figure of the prohibiting, death-wielding sovereign and has incorporated the managerial normativizing, regularizing biopoweristic forms that Foucault still assumed were distinguishable from the juridical form, even if historically entwined with it.” Brown develops this further in the essay we’ll be discussing, in which she stresses that “subjects are brought into being through subjectifying discourses” and that “we are not simply oppressed but produced though these discourses”; this in a sense returns us to Edelman’s althusserian take on the law.
Brown homes in on the paradoxes of universalism and particularism; claiming that women (black people queer people etc.) have or should have equal access to universal rights creates as many problems as arguing that some rights are specific to them. While proponents of gay marriage seem “oblivious of the productive, regulatory forces that course through state-sanctioned marriage,” advocates of affirmative action seem not to mind that it “requires its beneficiaries to affirm rather than disaffirm identity.” Brown’s comment that many forms of legalism do not address “the process by which women become women, by which both woman as signifier and woman as effect of gender power is produced and sustained,” could serve as a link to Denise Ferreira da Silva’s insistence that modern reason is based on the division between the “transparent I” and an “affectable I.” The former is a reasoning and self-determining subject that is supposedly universal but in actuality connoted as white and male; the latter is non-European and largely devoid of reason, falling short of being a real subject or person. European women also appeared to fall on the side of “affectability,” though not as deeply or completely—and white feminists have come under a lot of critique for failing to reflect on their own relative privilege and on race.
Again sounding a Foucauldian note, Ferreira da Silva argues that the “Transparent I” as a self-determined, self-actualizing subject produces its others; it produces race. She analyses a productive regime that institutes human difference as an effect of the play of universal reason and asks “How precisely does the racial (re)produce the universality of the law?” She argues that it is not enough merely to gather “instances of philosophical formulations of juridical universality and humanity that exclude the others of Europe,” and that one has to go beyond critiquing the “sociohistoric logic of exclusion” to address the productivity of power, of reason-as-power. This includes addressing the “apparatuses of juridical domination and economic exploitation” but also their potentialization through “a new political-symbolic arsenal: scientific universality.” It is through the progressive merger of the juridical, economic and scientific forms of real abstraction that the (creatively destructive) productive power of modern rationality is truly unleashed.
While Brown’s essay is of course more limited in scope than Ferreira da Silva’s book, both raise questions about forms of “legalistic” forms of politics that seek to accord full rights to ever more groups of people, such as immigrants or “illegals.” As Brown notes, certain rights “we cannot not want,” and in the current political situation a lot of energy will be spent on defending rights that were already thought to be secured. And yet: we will remain trapped in the same logic, trying to turn the ideological sham of universal human rights into something close to a reality? When subject- and personhood remain based on some kind of notion of self-possession and self-determination that then gives the bearer of these qualities the right to own property, will there not necessarily also be a proliferation of sub-subjects who do not qualify?
Beyond “legalism,” what can the role of aesthetic practice be? Artists are working with immigrants and refugees, art projects seek to present or produce different forms of subjectivity and sociability. When such practices are not a mere artistic implementation of left legalism, can they be anything other than a kind of symbolic objection or aesthetic compensation?
Seminar 4: Tuesday February 14th, 2017
We are living through a moment when the rights of natural persons (but not of corporate persons) are being revoked through executive order by a fascist toddler-sovereign, and when US civil servants trying to uphold the constitutions are being fired in a summary, reality TV-like manner. The permanent state of exception is getting ever more exceptional, the contradictions more pronounced. On the one hand, the law is supposedly universal in its reach; there is no true outside, for to be placed outside the law (by having some or all of your rights suspended) is still to be captured by the law, as immanent exception. The sovereign suspension of the law may be its highest form of enactment.
“The short answer is: because none of us are outside the law,” so Marit Paasche and Judy Radul defend their book of texts dealing with the law, “produced by an art centre.” They question whether there can be such as thing as “an illegitimate approach to the law”: if everything is subject to “legalization,” if the real abstractions of the law reshape the sensible and the social in all its domains, then the law is indeed too important to be left to a class of specialists, to a particular troupe of actors.
This week’s edition of the Legalize Everything seminar is linked to Sunday’s Roaming Assembly, The Strange Case of the Case, during which the theatre Huis Oostpool in Arnhem becomes a meta-court in which artists and art historians discuss and (re)enact legal cases. Hence also the need that art historians such as Buskirk feel to address the incorporation of art into the sphere of the juridical, where they encounter lawyers such as McClean who come at the problem from the other side.
The daily enactment of the law occurs in places designed for what is known in German and Dutch as Rechtsprechung or rechtspraak, the “speaking of the law”: the courts. Universal though the law’s claims may be, its productivity reveals itself in specific locations, in zones where special protocols apply; in custom-built architectural settings and theatrical performances. Here the world is remade as a matter of course. For instance, a legal provision declaring “all persons” having equal rights, intended to safeguard the rights of former slaves, can be used to formulate a doctrine of corporate personhood.
If, for Cicero, actors merely mimic the real while (legal) orators act the real, this distinction is far from clear-cut. Even while the juridical seeks to regulate art and fully subject the aesthetic to the productive logic of (intellectual property) law, the court case as legal theater can be subject to unscripted interventions by various players. In the seminar, We will discuss this on the basis of texts from Radul and Paasche’s volume A Thousand Eyes: Media Technology, Law and Aesthetics.
Seminar 3: Tuesday January 17th, 2017
The literature for January focuses on a different strand that also emerges from Hegel, via Bernard Edelman: intellectual property. We’ve already read Edelman’s historical sections on Kant and Hegel and the emergence of a (theoretically) “universal” person in Hegel. Though Hegel distinguishes between the two, Edelman tends to substitute “(legal) subject” for Hegel’s “person.” Schooled in Althusser’s brand of Marxism, Edelman discusses “juridical ideology” and the constitution of people as subjects-in-law through juridico-ideological interpellation in highly Althusserian terms (p. 32). And in a way, this takes him back to Hegel: to be a subject in law is to be capable of acquiring and purchasing (yourself).
This then is specified in relation to the subject-creator (of an artwork) and intellectual property. Even more specifically, Edelman focuses on the ways in which the photographer and the filmmaker came to be incorporated into copyright law; for this to happen, it had to be demonstrated that photography and film were not purely mechanical processes. The economic imperative behind this move was clear: “Photographer and film-maker must become creators, or the industry will lose the benefit of legal protection.” These days, of course, the “creator” increasingly takes corporate form: the “creative” sign away their rights to the films they produce for Disney etc.
Film, as a highly collaborate art form, always had a complicated relation with notes of authorship that were essentially derived from literature. Edelman discusses the “socialization of the subject-author” and the legal battles over the role of the producer and the director. With the producer as the owner of the creation he produces, capital in a sense becomes the author (p. 58).
In chapter 4, Edelman focuses not on the reproducing author but on the reproduced person; not on the photographer, but on the photographed. In the process of becoming—image, person and thing exchange traits, and “the structure of the subject has become the structure of the thing” (p. 85).
Martha Buskirk’s text is obviously written in a very different register; as an art historian, she pays close attention to specific artworks and practices hat raise issues concerning copyright. Buskirk focuses on art since the 1960s, especially on those practices that challenge modern conceptions of authorship (the single artist as subject-creator) and use of forms of mechanical (re)production. With the artwork’s physical manifestation becoming much more contingent, conflicts around authenticity and authentication proliferated; with the rise of appropriation, lawsuits over copyright infringement became common.
The supplementary text is by Daniel McClean, a lawyer who has worked with contemporary artists and collectives such as Superflex. Both Buskirk and McClean are also reference points for Kobe Matthys (Agency), who will also participate in February edition of Roaming Assembly.
Seminar 1: Tuesday October 25th, 2016
Art, Transgression, Lawlessness
In the first session we have dealt with lawlessness, transgression and the state of exception. The authors we’ve read seem to agree with Carl Schmitt (to a greater or lesser extent) that “all modern theories of law derive their power from secularized theological concepts.” Agamben has written elsewhere (in his book Profanations) about the dialectic of the sacred and the profane, characterizing profanation as returning something that was sacred to daily life and human usage; to profane is to restore a use value and a certain social consensuality, which is ultimately enshrined in law as the regulation of profane life. Conversely, to sacralize is to remove something from the sphere of use – for instance through sacrifice. The homo sacer is placed outside the sphere of the law through the sovereign ban – and un so far as the sovereign has the legal power to suspend the law, the sovereign can never be fully immanent, which is to say: fully profane.
This is actually close to Georges Bataille’s analysis of sovereignty and the sacred. For Bataille, to be sovereign is to be willing to break with the profane reign of utility (“the world of limits, of laws and of the prohibition”) and even to squander or sacrifice one’s own life. This was supposedly true of the sovereigns or masters of old: they were exemplary subjects in that they had a sovereign disregard for the useful object, for (re)production and for life itself. Agamben praises Bataille’s effort as “exemplary” in some ways, but criticizes him for swapping the real issue – the state of exception – for the logic of transgression. Transgression is a product of the law (St. Paul’s “if it had not been for the law, I would not have known sin”) and tends to confirm it in a cyclical back-and-forth. However, in his analysis of Chesterton’s The Man Who Was Thursday, wit hits fantasy of an anarchist, artistic-intellectual conspiracy that is in fact masterminded by the police, Zizek argues that the real (Hegelian) point that Chesterton “doesn't get is that universal(ized) crime is no longer a crime - it sublates (negates/overcomes) itself as crime and turns from transgression into a new order.”
This is crucially different, of course, from Agamben’s declaration that “in the state of exception, it is impossible to distinguish transgression of the law from execution of the law,” and his insistence that what we have now is not so much universalized crime as a generalized state of exception. This state is further marked, for Agamben, by a kind of Kantian formalism, in which the Messianic sublation or “fulfillment” of the law is a priori impossible: “in Judaism, as in Christianity or Shiite Islam, the Messiah's arrival signifies the fulfillment and the complete consummation of the Law. In monotheism, messianism thus constitutes not simply one category of religious experience among others but rather the limit concept of religious experience in general, the point in which religious experience passes beyond itself and calls itself into question insofar as it is law (hence the messianic aporias concerning the Law that are expressed in both Paul's Epistle to the Romans and the Sabbatian doctrine according to which the fulfillment of the Torah is its transgression). But if this is true, then what must a messiah do if he finds himself, like the man from the country, before a law that is in force without signifying? He will certainly not be able to fulfill a law that is already in a state of suspension, nor simply substitute another law for it (the fulfillment of law is not a new law).”
During our discussion, it became clear to me that a crucial section of Agamben’s Homo Sacer – precisely because it does not appear to be fully resolved – is the one where he enters into a dialogue with Negri and raises “the problem of constituting power and its relation to constituted power.” He argues that “Negri cannot find any criterion, in his wide analysis of the historical phenomenology of constituting power, by which to isolate constituting power from sovereign power.” Agamben effectively tries to do so by thinking constituting power through potentiality (he states that constituting and constituted power relate to each other like potentiality and actuality), proposing this as way to think politics and the lawbeyond the sovereign ban. For Agamben the “right” conceptualization of potentiality seems to be crucial in challenging the universal state of exception. Agamben notes that “[the] rule can refer to the individual case only because it is in force, in the sovereign exception, as pure potentiality in the suspension of every actual reference,” and that “the law presupposes the nonjuridical (for example, mere violence in the form of the state of nature) as that with which it maintains itself in a potential relation in the state of exception.” As an example, one could perhaps think of the revocation of a person’s citizenship (which is not a new phenomenon but which has taken on new virulence in the “War on terror” context) could be seen as a restoration of a “pure potentiality” that is outside of “civil society” altogether; a sphere of otherness, of Hobbesian nature.
As for constituting power, it must never be completely actualized in the state and the rule of law; to continue to have (or be)potential, it must also be able to withhold itself from pure actualization; it must also maintain the potential to not-be to prevent becoming entrapped in existence as seemingly unalterable fact. Unlike sovereignty, constituting power or potentiality this is not no much the power to suspend the law from above or to cast people outside it, but to challenge and transform it from below and from within. Social movements from Alterglobalisim to occupy and beyond can easily—perhaps all too easily!—be cast in the role of agents of potentiality, of forms-of-life that seek to enact possibilities for a different society. As Agamben has put it elsewhere, with the term forms-of-life he refers to “a life that can never be separated from its form, a life in which it is never possible to isolate something such as naked life” and in which “the single ways, acts, and processes of living are never simply facts but always and above all possibilities of life, always and above all power.”
In Homo Sacer, Agamben notes that “The limit and also the strength of the Kantian ethics lie precisely in having left the form of law in force as an empty principle. […] But what is such a "form of law"? And how, first of all, is one to conduct oneself before such a "form of law," once the will is not determined by any particular content? What is the form of life, that is, that corresponds to the form of law?” Perhaps some of the artistic, theoretical and activist practices we will be looking into are attempts to answer this question.
Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford: Stanford University Press, 1998), pp. 17-43.
Paul Chan, A Lawless Proposition, in e-flux journal 12 (December 2011), http://www.e-flux.com/journal/a-lawless-proposition/.
Slavoj Zizek: “Hegel – Chesterton: German Idealism and Christianity,” http://www.lacan.com/zizhegche.htm
Michel Foucault, “A Preface to Transgression” (1963), in Language, counter-Memory, Practice: Selected Essays and Interviews ed. Donald F. Bouchard (Ithaca NY: Cornell University Press, 1977), pp. 29-52.
Introduction to Transgression and Its Limits, eds. Matt Foley, Neil McRobert and Aspasia Stephanou (Newcastle Upon Tyne: Cambridge Scholars, 2012), pp. xi-xxiv.
Seminar 2: Tuesday December 13th, 2016
Person and Property in Hegel and Beyond
Modern political systems often try to arrive at a kind of compromise between sovereign power and constituting power: “constitutional monarchy” is a telling compromise. The constituent assemblies that drafted constitutions in the late 18th century and later wrested away power from royal sovereigns, and created new forms of sovereignty in the process; the historical compromise that is “constitutional monarchy” is a strangely logical outcome. It is far from irrelevant that Hegel gave his lectures on the Philosophy of Right as an employee of the post-Napoleonic Prussian state, in Berlin; during the Napoleonic Wars –which of course were an outgrowth of the French Revolution – the Prussian monarchy has modernized to some extent, but never delivered on the promise of a constitution. Though as a young man he had shared the enthusiasm about the French Revolution, as a Prussian Untertan (subject, in the sense of a king’s subject) and as a Protestant, Hegel was a defender of the status quo –much to the chagrin of the young left Hegelians, who wanted to turn Hegelian dialectics against the master himself and against the state.
In his lectures on the Philosophy of History (so not the text we’re reading), Hegel contrasts the “French approach,” which led to the suppression of the catholic church and the abolition of the Monarchy during the Revolution, with the more gradual German-protestantist approach: “For on the one hand it was the Protestant World itself which advanced so far in Thought as to realize the absolute culmination of Self-Consciousness; on the other hand, Protestantism enjoys, with respect to the moral and legal relations of the real world, a tranquil confidence in the [Honorable] Disposition of men — a sentiment, which, [in the Protestant World,] constituting one and the same thing with Religion, is the fountain of all the equitable arrangements that prevail with regard to private right and the constitution of the State. In Germany the éclaircissement [Enlightenment] was conducted in the interest of theology: in France it immediately took up a position of hostility to the Church. In Germany the entire compass of secular relations had already undergone a change for the better; those pernicious ecclesiastical institutes of celibacy, voluntary pauperism, and laziness, had been already done away with; there was no dead weight of enormous wealth attached to the Church, and no constraint put upon Morality — a constraint which is the source and occasion of vices; there was not that unspeakably hurtful form of iniquity which arises from the interference of spiritual power with secular law, nor that other of the Divine Right of Kings, i.e. the doctrine that the arbitrary will of princes, in virtue of their being “the Lord’s Anointed,” is divine and holy: on the contrary their will is regarded as deserving of respect only so far as in association with reason, it wisely contemplates Right, Justice, and the weal of the community.”
What Hegel here appears to be saying is: no need for a constitution or for a parliament with any real power, as long as the king is reasonable and wise. In the Philosophy of Right, Hegel does his best to de-historicize his treatment of the law, only providing a quick tour through “World History” in the final paragraphs. He begins not with history but with the Idee(idea) and the Begriff (concept or notion; called “conception” in the translation we’re using). The Begriff posits its own reality, and the unity of concept and reality is the idea—the Idea of Right, in this case. This, after all, is a philosophical idealism that asserts that what is rational is real, and what is real is rational. In a certain sense, then, history is at the basis of Hegel's philosophy of right after all: the current state of society, which is the product of the entire historical unfolding of spirit, is the rational reality he seeks to legitimize philosophically.
For Hegel, law and the state belong to the sphere of so-called objective spirit, which in his system is situated between subjective spirit (pertaining to consciousness) and absolute spirit (art, theology, philosophy). Why, then, is law “objective spirit”? The subject-object dialectic is of course crucial in Hegel’s work, and the subject is ultimately defined not in terms of some fixed essence or bearer (i.e., the human being is the subject), but in opposition to the object. The subject is self-moving; it is negation, negativity, the overcoming of self-identity. The subject, then, stands for change – over the solid and stolid object. For Bataille, who attended Kojève’s lectures on Hegel in the 1930's, the subject par excellence was the master or sovereign, who transgressed and transcended the world of objects and use. However, in his focus on at least momentarily (ecstatically) reclaiming a lost world of “immanence” by transgression the sphere of work and use, Bataille did indeed substitute a rather circular logic of transgression for Hegel’s dialectic, which never takes us back to any point of origin.
The negation of the negation is not the same as the original point of departure: in dialectical thinking, you can’t go home again. Think of Zizek’s insistence on a universe that is not cyclical or in balance, but out of kilter – and therefore historical. Even when “constitutional monarchy” seeks to negate the democratic republic of the French Revolution, such as reactionary social form is not identical with the pre-revolutionary monarchy that preceded it. Hegel’s “subject” is practically symbolic with spirit: for Hegel, spirit stands for the process of negation and overcoming that plays out historically. Spirit is not self-same substance but process, result. As historical agents, humans tend to play the role of subjects, but they are not always or exclusively subjects: Napoleon at the Battle of Jena has a different degree of subjecthood than the exiled Napoleon dying of arsenic poisoning.
Objective spirit is what Hegel also calls “second nature”: here spirit self-objectifies in the form of social structures and institutions that can at times come to seem alien(ating) and in need of further negation; this is where Hegel’s radical young followers, including Marx, took their cue. Hegel, however, insists on demonstrating that what exists is rational and just: the legal system is “das Reich der verwirklichten Freiheit,” the realm of realized freedom (paragraph 4). Hegel’s philosophy of right is far from a critique of the law of his own day—yet it is not devoid of a critical sting. In the process of seeking to found his philosophy of objective spirit on fundamental concepts that are not derived or plotted out historically, Hegel becomes radical: he strikes at the roots (radix) of modern law as the legal precondition of property. The (human) subject gets a double, the legal person, and this person is above all the bearer of the right to own property. Compare this too well-meaning liberal paeans to Democracy, Law and Human Rights: Hegel suggests that property is the ultimate right, against which something such as the right to vote is expendable superstructure. And if Hegel’s step beyond Kant’s legal theory was precisely based on his insistence that “all right derives from the person,” as Bernard Edelman puts it, the question just what or who this person is becomes of paramount importance. On the one hand, personhood is crucial enough to keep expanding, encompassing corporations and potentially also non-human life-forms. On the other hand, while the law today treats every human being as a person with certain unalienable rights, arguably full personhood more than ever requires citizenship: selling your own labour legally, for instance, is only possible when you’re a citizen.
Hegel remarks on “intellectual property” briefly, as somewhat exotic phenomenon—which is understandable, given its economic marginality in the early nineteenth century. Bernard Edelman’s 1970s Ownership of the Image is a pioneering Marxist study of copyright law in which “law is a representation of the commodity form and the subject is central to the operation of law” (from the introduction by Paul Q. Hirst). Rather than differentiating between the terms subject and person, Edelman analyses the juridical bearer of rights as the legal subject. As he puts it in the context of photography: “At one and the same time man must be subject and object in law. The subject has to be realized in the object and the object in the subject.” I wish Edelman could have written about Richard Prince’s New Portraits.
Going beyond Hegel and beyond Edelman, one could of course ask if the rule of law as the rule of property is a covert archaism. In his book on Wagner, for instance, Adorno remarks on the way in which the composer foreground the motif of the contract (“Was du bist, bist du nur durch Verträge”) in his Ring cycle, which is based on Nordic myths: “If in the Ring mythic violence and legal contract are confounded, this not only confirms an intuition about the origins of legality, it also articulates the experience of the lawlessness of a society dominated in the name of law by contract and property.” Here we again have a vision of the indistinguishability of law and lawlessness: an indistinction that for Adorno is the result of an accumulationist, capitalist sovereignty.
G.W.F. Hegel, Elements of the Philosophy of Right (1821); read at the very least Paragraphs 4-17, 22-32, 34-51, 57, 65-71.
Bernard Edelman, Ownership of the Image: Elements of a Marxist Theory of Law, trans. Elizabeth Kingdom (London/Boston: Routledge & Kegan Paul, 1979), pp. 142-191.
Sven Lütticken, “Personafication: Performing the Persona in Art and Activism”, in New Left Review no. 96 (November-December 2015), pp. 101-126.
Seminar 3: Tuesday January 17th, 2016
Copyright and Copywrong
Martha Buskirk, The Contingent Object of Contemporary Art (Cambridge MA/London: MIT Press, 2003), pp. 1-105.
Bernard Edelman, Ownership of the Image: Elements of a Marxist Theory of Law, trans. Elizabeth Kingdom, (London/Boston: Routledge & Kegan Paul, 1979), pp. 21-112.
Daniel McClean, “Authenticity in Art and Law: A Question of Attribution of Authorization?,” http://www.artzip.org/authenticity-in-art-and-law
Sunday, 12 February: Roaming Assembly symposium with Kobe Matthys (Agency) and Zachary Formwalt
Seminar 4: Tuesday February 14th, 2016
Theatre of Law
Marit Paasche and Judy Radul (eds.), A Thousand Eyes: Media Technology, Law and Aesthetics (Berlin: Sternberg Press, 2011): essays by Cassiday, Sivan, Vismann (pp. 1-96), Radul, Goodrich (pp. 117-196).
Seminar 5: Tuesday March 13th, 2016
Subjectivity and Personhood
Wendy Brown, “Suffering Rights as Paradoxes,” in Constellations 7, no. 2 (2000), 230-241.
Ellen Feiss, “What is Useful? The paradox of rights in Tania Bruguera’s ‘Useful Art’,” art & education, http://www.artandeducation.net/paper/what-is-useful-the-paradox-of-rights-in-tania-brugueras-useful-art/
Denise Ferreira da Silva, Toward a Global Idea of Race (Minneapolis: University of Minnesota Press, 2007), pp. xi – 90, 253-267.
Seminar 6: Tuesday April 25th, 2016
Sue Donaldson and Will Kymlicka, Zoopolis: A Political Theory of Animal Rights (Oxford: Oxford University Press, 2011), pp. 1-155.
Paulo Tavares, “Nonhuman Rights,” in Forensic Architecture (eds.), Forensis: The Architecture of Public Truth (Berlin: HKW/Sternberg, 2014), pp. 552-571.
Donna J. Haraway, When Species Meet (Minneapolis/London: University of Minnesota Press, 20080, pp. 205-246.
Ursula Biemann and Paulo Tavares, Forest Law (2014), http://www.geobodies.org/art-and-videos/forest-law
Seminar 7: Tuesday May 22nd, 2016
Puzzling evidence: Forensic Aesthetics
Forensis: The Architecture of Public Truth: texts by Eyal Weizman (pp. 9-32; 361-380); Susan Schuppli (pp. 381-392).
Lawrence Abu Hamdan, The Aural Contract (London: The Showroom/Centre for Research Architecture, 2010).
Thomas Keenan and Eyal Weizman, Mengele’s Skull: The Advent of a Forensic Aesthetics (Frankfurt/Berlin: Portikus/Sternberg Press, 2012).