Jean-Luc Nancy: The Being of Human Being or Notes on Sculpting the Human

Association of Law, Culture and the Humanities Conference: Sculpting the Human: Law, Culture and Biopolitics Birkbeck, University of London, 22 March 2013

Sculpting the human: Sculpt and Human: Two profound lexemes, both intimately linked with law. First, Sculpt: A brief etymological investigation reveals the following: Sculpt comes from the Latin Sculpere, which is a back formation of the word Exculpere meaning to carve or cut out. Exculpere is in turn linked with Exculpare, which is literally to exculpate, to alleviate of guilt. Imagine the sculptor working on stone, exculpating it, cutting out its guilt. But for what could a stone be culpable? What could be its crime, fault, error or shame? Perhaps from the sculptors point of view, the stone is culpable of not yet being the image, shape or form that is desired, willed or deemed just by the sculptor. Exculpation occurs when the sculptor sculpts, chips away at the offending element. The sculptor, in a sense, designates culpability and manifests the law, executes an injunction, by cutting into the stone. The tapping of the sculptors chisel, its penetration into the body of the stone, is reminiscent of Kafkas Penal Colony. Of the condemned man, the traveller asks Does he know his sentence? No, says the Officer. It would be useless to give him that information. He experiences it on his own body. The diabolical machine metes out the sentence, its needle-like harrow, like the sculptors chisel, inscribing the law repeatedly onto and into his body, eventually killing him. Many questions arise from this: what of the status of the sculptor as artist and hence the complicity of poesis, the productive telos, vision, or aim of the artist, with violence? Can violence be inflicted on a stone? If this is taking the idea of violence too far, then what of the sculptor as jurisprudential metaphor, the sculptor who or that has the prudentia, foresight, vision or better still the power to envision how the subject must be, how it must become, how it must be relieved of the guilt of being out of shape, not right, too much in a state of nature, which is to say, too natural: what of the exculpation of the legal subject through material inscription, the cold hard penetration of the chisel, the needle, the

harrow into the body. By what right does the sculptor sculpt, who or what authorizes the sculptor, that is, who or what comes before the sculptor and hence before the law is it more law, a sovereign sculptor, a sculptor king, perhaps Nothing, or some combination or cross-fertilization of all these ideas? These are just some of the problematic questions. For the moment, however, I would simply like to reaffirm the association of the sculptor with law and hence the idea of sculpting the human with the question of legal subjectivity. One of the major ways in which the law sculpts the human is through the machinery of human rights. Costas Douzinas has drawn on the example of cubist art to describe how this operates:
The legal person that rights and duties construct resembles a caricature of the actual human self. The face has been replaced by an image in the cubist style; the nose comes out of the mouth, eyes protrude on the sides, forehead and chin are reversed. It projects a three-dimensional object onto a flat canvas.

In short, for Douzinas, human rights are a blunt tool that is used to sculpt something rather more inhuman than human. Certainly, the legal subject becomes a fully autonomous and responsible individual, the individual of classic liberalism, but nothing more than that. Douzinas therefore argues that human rights misrecognize or repress the recognition of the inter-subjective nature of the human being. This inter-subjective nature is far from a stable and isolated individual. It is an identity in constant construction through its interaction with others. In essence, the being of human being is being in community, which Douzinas rightly notes, is the opposite of common being or of belonging to an essential community. This is then, an appropriate point to in which to bring in Jean-Luc Nancy. In an essay of his on Human Rights that I have had the pleasure to translate for publication later this year, Nancy begins by explaining why the word human is, for him, problematic in terms of its semantic baggage, both in French and English. In English we have derivative words such as humane and humanity, which contain within them sentimental notions of philanthropy, care and Christian charity. He argues that such language contains a hidden axiom of condescension. With respect to the word human then, Nancy writes that:

It is for the rich, cultivated and dominant who feel benevolence, compassion and pity for the social misfortune of others. And for all that, philanthropists have never sought to challenge the social order, except in minor ways.

It should be emphasized here that Nancy is not denouncing feelings of care for others. He is merely trying to bring to light how such discourses of humanity can paradoxically involve a certain obnoxious inhumanity. This is why, in general, he and many other thinkers have tended to speak in terms of subjectivity rather than humanity, where subjectivity is a more open terrain in which to think being in the world. For example, the title of an early book that he co-edited was Who comes after the Subject? rather than who comes after the human or who is post-human? That being said, there are no shortage of examples of his use of the French word homme meaning man, being translated more neutrally as human. And he readily admits that the French language, like the word man in English, does not so readily distinguish between the human species and male gender. Even the word subjectivity retains a degree of ambiguity: For example, in an interview for the book Derrida wonders whether we could ask what rather than who comes after the subject. He goes on to suggest that the question beginning with what relates to something other than the subject, a pre-subjectivity, something inhuman that calls the human being to responsibility. Hence Derrida can say it is perhaps more worthy of humanity to maintain a certain inhumanity, which is to say the rigor of a certain inhumanity. This idea of alterity or radical otherness is a familiar trope and has been articulated in many different ways. Some will disagree with me when I say that I think Nancy also articulates a form of radical alterity. One way is in his thinking of subjectivity as communal being, being that is both singular and plural. For me, alterity comes in here at the border between singularities, the borders that constitute the intersection of the infinite with the finite, or what he calls the infinite lack of infinite separation between us. Our singularity is constituted in a sense by all others as well as the difference between all others. We would not be humans if there were no stones, he says. Which means we have the minerality of the stone in our bones, we share this quality with them as well as being radically different from them. This is what constitutes the infinite singularity of each finite being. Another way is through his conception of freedom, a freedom that is strictly speaking not conceived, that is to say, not confined to the limit of thinking. Rather, being is surprised and seized by freedom.

This is not the freedom at the level of the individual, in the sense of either the classic freedom of the individual or individual choice, but rather at the level of what in the individual is not individual, the operation of the law of freedom is the possibility of being addressed by the other, from out of the alterity of the other. Returning to his essay on Human Rights, Nancy notes that the Universal Declaration of Human Rights affirms freedom of speech and belief and freedom from fear and want, and we can now understand why he would consider such a recital a rather insufficient account of what it means to be free. For Nancy, the freedoms articulated in human rights discourse do not exhaust the possibilities of human freedom. We can and do deserve much more. Because we deserve much more, he notes the schism between legal rights and non-legal rights (or what has been called natural right) is not one that can be neatly comprehended as a binary distinction. The foundations of positive law are anything but solid, whether we consider it in terms Schmitts sovereign exception or in terms of the fiction of Kelsens basic norm. Nancy reaffirms here what he has argued extensively elsewhere, namely the absence of foundation of right in general, an absence that is not temporary or contingent but constitutive and even constituent of right. For Nancy, right is linked to the institution that cannot be instituted, namely justice, in very much the same sense as Derridas well-known exposition in the Force of Law. If legal rights can only reflect a caricature of the human self, a two-dimensional misrepresentation, then to render justice to person X undeconstructable justice as Derrida would have said would be to give to X what he or she truly deserves. And what X deserves, according to Nancy, is the infinite recognition of his or her singularity. That is to say, not merely the recognition of her right to free speech, to freedom of assembly, to access to water or a roof over her head etc., but infinitely more than this. Rights in this sense remain a horizon of impossibility, one that is literally beyond humanity, but still, Nancy argues, a necessary horizon. The integrity and certainty of the legal subject is therefore compromised in two directions. First at the point of legal foundation, which is constituted by a radical absence or an empty place in which one can think either in terms of a sovereign power that determines who is and isnt human, or in which one can think in terms of a formal presuppositions of normative necessity, in other words, legal fictions. At the other end, there is the impossibility of full recognition of the subject, the singular being whose sense can never be subject to completion.

If we apply this to the metaphor of the sculptor, one might be tempted to speak of the possibility of a Leviathan sculptor, the theologico-political sculptor or the sculptor as God or the spectral sculptor, the sculptor that is judged, in any case, to have always failed to do justice if not to be deliberately unjust. This, though, is where arguably the metaphor breaks down in relation to the undeconstructability of justice. That it is undeconstructable means no person or thing can claim justice for itself, no sculptor can produce, mould or manufacture it as such, for justice is itself unjustifiable. On this, I shall leave you with Nancys own words:
This justice rests on the unfound-able certainty that it is just that that exists. On the certainty, therefore, that it is just that the world exists even though nothing can justify its existence. Unjustifiable justice, far from founding any kind of rights as extensive as these may be opens up instead an infinite perspective that exceeds all possibility of right This perspective must remain present beyond the horizon of right; for without an appeal or a sign towards it, right can only fall back into its inevitable fragility, whether of impotence, arbitrariness, relativity or rigidity. The greatest merit of human rights is to bring out all these difficulties and all of these exigencies.

Gilbert Leung